1. Contract Formation
Any quotation, whether or not responsive to a request from the Buyer, constitutes the offer of iuvo BioScience Operations, LLC (iuvo) to the Buyer, and becomes a binding contract under the terms and conditions set forth herein when it is accepted by the Buyer. However, any such acceptance shall be valid only if made within sixty (60) days of the date of this instrument or such other time period specified. iuvo reserves the right to revise this quotation at any time due to changes beyond iuvo’s control, such as, without limitation, cost of materials, engineering or manufacturing process changes. iuvo will provide the Buyer with advance notice of any price change when reasonably practicable. If this instrument is an acknowledgment, it constitutes iuvo’s acceptance of the Buyer’s order, subject, however, to the terms and conditions set forth herein. Buyer must issue an order for each test which iuvo is to perform hereunder. Buyer shall include the iuvo quote number in Buyer’s order. If Buyer desires to establish a standing order to facilitate multiple tests/order processing, please contact iuvo to establish. These terms and conditions shall govern all orders/contracts for laboratory tests, laboratory services, sterilization services, and other products or services provided by Iuvo. These terms and conditions shall be automatically incorporated by reference into each quote, order, Contract Sterilization Agreement, and any other agreement entered into by iuvo, and shall supersede any other agreement, writing, or understanding whether made before or after the date of this instrument. Thus, iuvo’s contractual obligations are expressly limited to the terms contained herein and any other contract into which these terms and conditions are incorporated. The inclusion of any different or additional terms in any other instrument is objected to, and performance by iuvo shall occur with the express understanding that only the terms and conditions recited herein shall controlTerms of Payment
2. Terms of Payment
- All payments are to be made in U.S. funds, and without expense to iuvo. The Buyer may make payment by check, wire transfer, or MC/Visa. For questions regarding credit applications or routing information for wire transfers, please contact the iuvo accounting department at 585-533-1672.
- Payment Terms: Net 30 days after date of invoice. Credit card payment will be assessed a 2.5% surcharge.
- If and when credit is extended by iuvo, invoices shall be due and payable within thirty days from invoice date. Any amount unpaid thirty days after shipment is subject to a delinquency charge of 2 percent of the total amount due for each month that the payment is not received by iuvo. Acceptance of the delinquency charge by iuvo shall not be deemed a waiver of any rights that iuvo may have by reason of such non-payment. However, notwithstanding the foregoing, iuvo retains the option to refuse or to revoke credit, and to require immediate payment of all outstanding balances and payment on delivery for all future deliveries.
- Buyer agrees to pay any expenses incurred in collecting any unpaid balance of the purchase price, or in recovering possession of goods including reasonable attorney’s fees.
- If iuvo extends credit to the Buyer, then for the purpose of securing payment and performance of all Buyer’s obligations hereunder, iuvo shall retain a security interest in all of the goods being sold pursuant to this agreement. At iuvo’s request, Buyer shall execute and join in executing all financing statements and other instruments, in form satisfactory to iuvo, which iuvo deems necessary or desirable to perfect its security interest in the goods being sold pursuant to this agreement.
- iuvo requires every customer to prepay 50% of the quoted testing price on all orders in excess of $5,000 prior to the initiation of any testing. For international customers, iuvo reserves the right to invoice 50% of quoted charges prior to initiation of testing, regardless of quoted price. For new customers, iuvo reserves the right to require prepayment of the quoted testing price prior to initiation of testing. Long-term studies will be invoiced as cycles and/or tests are completed.
3. Packing and Shipment
Packing and shipment shall be in accordance with good commercial practice.
4. Delivery and Title
- For orders with delivery inside the United States, FOB iuvo shipping point shall apply as provided for in the Uniform Commercial Code. Risk of loss and title shall pass to Buyer at the FOB point.
- For orders with delivery outside the United States, iuvo and Buyer agree to apply INCOTERMS 2000. Delivery shall be FCA Iuvo shipping point, unless otherwise agreed by iuvo and stated in the order. Risk of loss shall pass to the Buyer as provided for by INCOTERMS 2000. Title shall pass to the Buyer with risk of loss.
- Under no circumstances shall iuvo have any liability whatsoever for delays, loss of use, damage during shipping, insurance costs, or for any indirect or consequential damages arising from any delay or loss of use.
- iuvo shall not be responsible for the failure to perform any obligation arising hereunder due to events beyond its control. These events shall include, but are not limited to, fire, storm, flood, earthquake, explosion, accidents, acts of public enemy, sabotage, strikes, labor disputes, labor shortages, work stoppages, transportation embargoes or delays, failure or shortage of materials or machinery used by Iuvo in the manufacture of the goods supplied hereunder, acts of God, failure of suppliers or subcontractors to satisfactorily meet scheduled deliveries, and acts or regulations or priorities of the Federal, State or local government or branches or agents thereof, government contracts or shipments to purchasers to fulfill contracts.
- Lead times and order schedule shall be in accordance with the quotation.
The Buyer shall defend, indemnify and hold harmless iuvo and its affiliates and its officers, directors, shareholders, members, employees, agents and representatives of any of them, from and against any claim, demand, suit, action, controversy, verdict, liability or cost relating to and arising out of the sale or use of Buyer’s products and/or services, except to the extent that such claim, demand, suit, action, controversy, verdict, liability or cost is the direct result of gross negligence or willful misconduct by iuvo.
6. iuvo Standard Warranty
- STERILIZATION AND LABORATORY TESTING SERVICES: iuvo warrants that all sterilization and/or testing services (“Services”) will be performed with due care, skill and diligence and in accordance with standards generally applicable in the industry and shall comply with applicable law and all mutually agreed specifications set forth in the order. iuvo warrants, for a period of ninety (90) days from the date of completion of Services under the order, that its Services performed hereunder will be free from defects in materials and workmanship and shall conform to the specifications set forth in the order. Unless specified in the final written report, the testing results are not indicative or representative of the qualities of any samples from the same or other lots on which testing was not performed. The Buyer understands and agrees that the testing services to be provided by iuvo may result in damage to the samples being tested and the Buyer assumes all risk associated with damage to such samples.
- BIOLOGICAL AND CHEMICAL INDICATORS (“GOODS”): THE GOODS ARE SOLD “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- In the event of a defect in materials or workmanship in iuvo’s services provided hereunder, iuvo’s sole liability, and Buyer’s sole remedy, under this Warranty shall be limited to the refund of the Buyer’s purchase price for such services performed by iuvo.
- THE WARRANTIES CONTAIN HEREIN ARE EXCLUSIVE AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL OTHER OBLIGATIONS AND LIABILITIES.
- INVESTIGATIONS: For laboratory investigations that are not attributable to iuvo laboratory error, iuvo reserves the right to charge for investigations requested by the Sponsor or for copies of investigation reports requested by the Sponsor.
7. LIMITATION OF LIABILITY
- STERILIZATION AND LABORATORY TESTING SERVICES: To the fullest extent permitted by law, iuvo shall not be liable for any direct, indirect, consequential, incidental, punitive or special damages (including without limitation, lost profits) resulting from or arising out of the sterilization and/or testing services provided by Iuvo hereunder, whether based in tort, contract or otherwise, and regardless of whether Iuvo had advance notice of the possibility of such damages. Notwithstanding the foregoing, Iuvo liability in all cases shall be limited to the price quoted for the sterilization exposure and/or laboratory testing.
- BIOLOGICAL AND CHEMICAL INDICATORS (“GOODS”): To the fullest extent permitted by law, Iuvo shall not be liable for any direct, indirect, consequential, incidental, punitive or special damages, including without limitation lost profits, resulting from or arising out of the use of the Goods, whether based in tort, contract or otherwise and regardless of whether iuvo has advance notice of the possibility of such damages. Notwithstanding the foregoing, in no event shall iuvo’s liability exceed the price of the Goods sold.
8. Cancellation of Contract
Under no condition may the Buyer cancel its obligations under this contract unless iuvo expressly agrees in writing. In the event iuvo agrees to allow Buyer to cancel its obligations hereunder, iuvo, in its sole discretion, may require Buyer, as part of such cancellation, to (a) reimburse iuvo for all direct, indirect, and consequential damages and expenses arising by reason of such cancellation, and/or (b) retain as liquidated damages any Buyer deposit made under this contract.
Unless otherwise agreed to in writing in the order by both iuvo and Buyer, all tools, dies, fixtures, jigs, set-ups, or other tooling used in connection with this quotation/order shall be retained and owned by iuvo.
10. Applicable Law
In the event of a dispute regarding any of the terms or conditions contained herein, the parties agree that the laws of New York State, excluding its choice of law rules, will control.
Neither party may assign its rights to any other person, whether by operation of law or otherwise, without the non-assigning party’s prior written approval.
Buyer shall pay all taxes imposed upon or in any way connected with the manufacture, use, sale, possession or delivery of product/services ordered, unless Buyer furnishes iuvo with the appropriate tax-exempt certificate. Such taxes shall be billed separately unless otherwise required by law.
A waiver by either party of any breach of any of these provisions, or its failure to exercise any right, shall not be construed as a waiver of any other breach, or a waiver to exercise any other right.
If the Buyer fails to pay any invoice when due, or fails to comply with any of the terms and conditions contained herein, iuvo may, at its option and without prejudice to other remedies, cease the performance of services until the default is corrected or cancel iuvo’s remaining obligations under the contract. In addition, iuvo reserves the right to terminate this quotation/order in whole or in part if:
- Buyer ceases to conduct its operations in the normal course of business or is unable to meet its obligations;
- Any proceedings in bankruptcy or insolvency are brought by or against the Buyer;
- A receiver for Buyer is appointed or applied for;
- An assignment for the benefit of creditors is made by Buyer.
15. Buyer’s Authorization
Buyer represents and warrants that the person who executed the offer which this instrument accepts, or who will execute the Buyer’s acceptance of the offer contained in this instrument, has duly executed the relevant documents on behalf of the Buyer, and is duly authorized to so act.
16. Compliance with U.S. Export Regulations
The Buyer is hereby placed on notice that the technical data, services or hardware furnished with this quotation or order acknowledgment may relate to articles controlled by the U.S. Government for export and may, therefore, be subject to export licensing requirements and limitations on disclosure or shipment to foreign nationals under U.S. Law. Federal, criminal and civil penalties may result from any violation of these export provisions. BUYER INDEMNIFIES IUVO FROM ANY BREACH OF SUCH REQUIREMENTS AND LAWS FOLLOWING BUYER’S RECEIPT OF EXPORT CONTROLLED DATA OR HARDWARE.