The PositiveID™ Multiplex Biothreat Assay is sold for research use only and no further distribution is allowed without the prior written consent of the PositiveID™ Corporation. Purchasers of this Assay agree to comply with the provisions of applicable federal, state, and local statutes, rules, regulations, orders, and ordinances in any use that they may make of this specific product.
PositiveID™ reserves the right to discontinue the sale of any products or to change product descriptions and/or specifications at any time without prior notification. Furthermore, PositiveID™ reserves the right to withhold, cancel, or suspend shipment of any product(s) in cases of force majeure including, but not limited to labor troubles, war, civil unrest, accidents, acts of God, and government regulations/restrictions. No Terms and Conditions other than those stated herein, and no modification of these Terms or Conditions, shall be binding on PositiveID™ without Positive ID’s™ written consent and agreement.
These Terms and Conditions of Sale shall govern all orders for and purchases of Assay products from the PositiveID ™ Corporation. In these Conditions, "we," "us," and "our" means PositiveID™, and "you" and "your" means the person, company or other legal entity that orders or buys goods from us and in each case their respective successors and/or assigns.
We are shipping these goods subject to the Conditions stated herein and our offer to sell goods is expressly conditioned upon your acceptance of such Conditions. You will be deemed to have assented to these Conditions unless you return the goods to us unopened and unused in accordance with Section 3 (Product Inspection, Returns, Exchanges & Refunds) of these Conditions within 14 days after your receipt of the goods. Our failure to object to provisions contained in any purchase order or other form or document from you shall neither be construed as a waiver of these Conditions nor an acceptance of any such provision provided by you. These Conditions, including all writings incorporated herein by reference, any applicable software licenses, any quotation issued to you by us, and those specific terms of a purchase order or other document that are either consistent with these Conditions or expressly agreed upon by us in writing, constitute the entire contract between us relating to the subject matter hereof (the "Contract"), and supersede all prior agreements and understandings between us, whether written or oral, and any of your additional or different terms and conditions, which are hereby rejected and shall be void. In the event of a conflict, a written quotation takes precedence over these Conditions, and a written contract covering the same subject matter signed by both of us takes precedence over either. If one or more of these Conditions are held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remaining Conditions shall be unimpaired.
The PositiveID™ Multiplex Biothreat Assay Kits™ are shipped in a frozen package, on ice, free carrier (FCA) from our shipping point. Freight or shipping charges are prepaid and added to the invoice, except as otherwise agreed in writing. Packaging, mode of dispatch and way of dispatch are chosen by PositiveID™, unless expressly agreed otherwise in writing between you and us prior to purchase and shipment. Risk of loss on all products shipped by PositiveID™ shall pass to purchasers upon transfer of those products to carrier. PositiveID™ shall not be liable for any loss, damage or delay during the course of shipment. Each product is insured prior to shipment as a part of the shipment process. In the event of any damage or loss that may take place during shipment, the insurance policy, which is maintained by the shipping company being used to ship the product will be responsible for the payment of any claims.
Any terms specified in customer purchase orders or other supporting documents other than product, quantity, price, shipping dates, and recitals of obligations to comply with applicable laws, unless agreed to in writing, prior to the purchase or shipping of any product, are specifically rejected.
Upon your receipt of goods shipped hereunder, you shall inspect the goods and notify our Customer Service Department at 1.866.402.2447 or via email at CustomerService@psidmba.com; of any claims for visible shortages, defects or damages. Should you fail to notify us of any such visible shortages, defects or damages within fourteen (14) days after you receive the goods, the goods shall conclusively be deemed to conform to these Conditions and to have been irrevocably accepted by you.
Authorization for any product return(s) must be approved by our Customer Services Department (in advance of any return) and a return authorization number issued to you prior to the return of goods. Please note that due to temperature and packing requirements, all items may not be authorized for return.
Items authorized for return must be shipped via overnight mail, frozen and on ice and in state satisfactory for resale to be eligible for product credit, refund or exchange. A restocking charge of 20% shall be charged on returns that are not the result of any error or fault of ours. Shipping charges will not be credited.
If you experience any performance issues with the assay we will ask that you share the testing data with us so we can ensure that the proper protocol (as outlined in the protocol documentation that was included in your shipment and as seen on our website, www.psidmba.com) was followed. A calibration kit for the organism(s) that you are working with should have been purchased with the assay to confirm proper operation of the lab instrument and the assay. If a calibration kit was not purchased with the assay, we will test a retained sample of the lot at PositiveID’s™ labs and confirm the performance. If you did not purchase a calibration kit at the time of your original order, we will encourage you to purchase one to be used for troubleshooting purposes before a refund or replacement will be given. If the data confirms compromised performance, we will ship out a new assay kit at our expense. If you are not satisfied with the results of the assay after allowing us to assess the original data and calibration data to determine that protocol was followed, we will offer a full refund.
Customized goods produced pursuant to specifications provided by you in a custom made order may only be returned if such goods do not conform to the specifications. Such goods will be replaced or a refund issued for the purchase price of such goods, in our sole discretion. We may require you to sign and deliver a properly completed certificate of decontamination prior to returning any product. No returns or refunds will be processed more than thirty (30) days after the date shipped by PositiveID™. No returns or refunds will be processed for any custom/bulk/special orders. No returns can or will be accepted without prior approval and authorization by PositiveID™. At our discretion, we may issue a product credit, exchange or refund for the product value. Any product credit not used within six months of the date of issue shall expire.
Sales tax will be added when shipping to jurisdictions where PositiveID™ is responsible for collecting sales tax unless the receiving party has exempt information on file with PositiveID™.
Any use tax, sales tax, excise tax, duty, inspection or testing fee, or any other tax, fee or charge imposed by any governmental authority, on or measured by the transaction between us shall be paid by you in addition to the prices quoted or invoiced. If we are required to pay any such tax, fee or charge, you shall reimburse us therefor or provide us at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
7.A Unless otherwise set forth in a warranty statement found in our current product documentation or in a specific written warranty accompanying the goods, in which case such language shall govern and control over conflicting language in these Conditions, we warrant to you, our direct customer, that our goods shall conform substantially to the description of such goods as provided on our website and other marketing materials accompanying the goods until their respective expiration dates (if stated), or up to their respective number of uses as the case may be, or, 12 months from the date of your receipt of such goods (AS LONG AS THE PRODUCT IS AND HAS BEEN KEPT FROZEN), whichever is shorter. THIS WARRANTY IS EXCLUSIVE, AND WE MAKE NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. IF WE MANUFACTURE CUSTOM GOODS FOR YOU BASED ON INSTRUCTIONS, SPECIFICATIONS, OR OTHER DIRECTIONS YOU PROVIDE TO US, WE SHALL NOT BE LIABLE FOR THE LACK OF SUFFICIENCY, FITNESS FOR PURPOSE OR QUALITY OF THE GOODS TO THE EXTENT ATTRIBUTABLE TO SUCH INSTRUCTIONS, SPECIFICATIONS, OR OTHER DIRECTIONS. Unless otherwise expressly stated in our quotation, we make no warranty whatsoever in regard to products furnished by third parties. Such products are subject to the warranties, if any, of their respective manufacturers to the extent they are transferable or otherwise available to our customers. Our warranty shall not be effective if we determine, in our sole discretion, that you have altered or misused the goods or have failed to use or store them in accordance with instructions furnished by us or the defects to the goods result from neglect or accident. Our sole and exclusive liability and your exclusive remedy with respect to goods proved to our satisfaction (applying analytical methods reasonably selected by us) to be defective or nonconforming shall be the replacement of such goods free of charge, upon the return of such goods in accordance with our instructions, although at our discretion we may provide a credit or refund in accordance with Section 3 above. ANY PRODUCT NOT COVERED BY AN EXPRESS WRITTEN WARRANTY IS SOLD AND PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, STATUTORY, EXPRESS OR IMPLIED.
7.B TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT SHALL WE BE LIABLE UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS), EVEN IF WE HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. We shall not be liable for any loss, damage or penalty as a result of any delay in or failure to manufacture, deliver or otherwise perform hereunder due to any cause beyond our reasonable control.
We certify that to the best of our knowledge: our goods are produced in compliance with all applicable federal, state, and local statutes, rules, regulations, ordinances, and orders, including applicable requirements of the Fair Labor Standards Act, as amended, the Occupational Safety and Health Act of 1970 and Executive Order 11246; we do not discriminate against any employee or prospective employee because of race, creed, color, national origin, sex, age or handicap, nor permit discrimination in any form nor maintain segregated facilities for our employees; we actively pursue employment of minorities, females, handicapped, disabled veterans and veterans of the Vietnam era; and we use our best efforts to award contracts to and place purchase orders with minority business enterprises and with labor surplus area concerns and small business concerns.
9.A We warrant to you that the manufacture and sale by us of goods manufactured by or for us without reliance upon instructions, specifications, or other directions provided by you and delivered hereunder, to our knowledge will not infringe the claims of any patent, trademark or copyright ("Intellectual Property") of any third party, and if goods do infringe Intellectual Property rights of such third party then your sole and exclusive remedies with respect to any breach of this warranty are set forth in Section 9.A. We do not warrant that the manufacture and sale by us of goods manufactured in reliance upon instructions, specifications, or other directions provided by you or your use or resale of goods delivered hereunder will not infringe the claims of any Intellectual Property of any third party.
9.B If any claim is made against you or us for infringement of Intellectual Property rights of any third party arising directly and solely from the manufacture or sale of goods by us in circumstances in which the manufacture of such goods was not based upon instructions, specifications, or other directions provided by you, we shall assume the defense of any ensuing litigation and conduct all negotiations for settlement of such claims and will bear the costs of any payment made in settlement or resulting from an award; provided that you shall give us notice in writing as early as is reasonably practicable of any such claim being made or action threatened or brought against you, shall make no admission of liability or take any other action in connection with such matter and shall permit us to defend such claim and shall (at our expense) give all reasonable information, co-operation and assistance to us (including without limitation lending your name to proceedings) in relation thereto. Without limiting the foregoing, if goods are subject to a suit or other legal proceeding claiming that the goods infringe Intellectual Property of such third party, or in our opinion are likely to become subject of such a claim, we shall, at our option, have the right to either: (a) procure for you the right to continue using the goods; (b) substitute for the alleged infringing goods other suitable, non-infringing goods with comparable functionality; or (c) require you to return the goods and upon return, refund to you the price you paid for the goods actually returned. The foregoing describes our entire liability to you and your exclusive remedies against us in connection with claims made against you based on or resulting from such infringement of Intellectual Property rights of third parties.
9.C If any claim is made against us for infringement of Intellectual Property rights of any third party as a result of (i) the manufacture or sale of goods based upon instructions, specifications, or other directions provided by you. you shall indemnify us, defend us and hold us harmless from and against any and all losses, damages and expenses (including reasonable attorneys’ fees and other costs of defending any action) that we may incur as a result thereof. You shall fully cooperate with us in any investigation relating to any such claims and make available to us all related statements, reports and tests available to you.
9.D Nothing in these Conditions shall be deemed or construed (i) as a license or grant of any Intellectual Property, whether implied, by estoppel or otherwise except to the extent expressly granted under any applicable intended use statement, limited use statement or limited label license; (ii) to limit our rights to enforce our Intellectual Property, including, without limitation, as to use of any goods beyond that granted under any Intellectual Property label license or statement applicable to the goods; (iii) as granting you any right to be supplied with goods or component thereof beyond those ordered by you and supplied by us in accordance with these Conditions; or (iv) as a license or grant of any right to you to manufacture or to have manufactured the goods.
10.A Except as otherwise agreed to in writing by our authorized representative, the purchase of goods only conveys to you the non-transferable right for only you to use the quantity of goods and components of goods purchased in compliance with the applicable intended use statement, limited use statement or limited label license, if any, on the label or other documentation accompanying the goods (all such statements or licenses being incorporated herein by reference as if set forth herein in their entirety). Unless otherwise authorized, no right to resell the goods, or any portion of them, is conveyed hereunder.
10.B Unless otherwise expressly indicated on our website or on the label or other documentation accompanying the goods, the goods are intended for research use only and are not to be used for any other purposes or for consumption by or use in connection with or administration or application to humans or animals. You acknowledge that the goods have not been tested by or for us for safety or efficacy, unless expressly stated in our catalogues or on the label or other documentation accompanying the goods. Without limiting the foregoing restrictions, you warrant to us that should you use or sell the goods for any use other than research, you shall conduct all necessary tests, comply with all applicable regulatory requirements, issue all appropriate warnings and information to subsequent purchasers and/or users and be responsible for obtaining any required Intellectual Property rights.
10.C You represent and warrant to us that: you will properly test, use, and, to the extent authorized, manufacture and market any goods purchased from us and any final articles made from them in accordance with the practices of a reasonable person who is an expert in the field, including, but not limited to, a technically qualified individual (40 C.F.R. § 720.3(ee)), and in strict compliance with all applicable national, state, provincial, and local food, drug, device, and cosmetic and other relevant laws and regulations, now and hereinafter enacted; and any final articles manufactured from the goods shall not be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act and shall not be articles which may not, under Sections 404, 505, or 512 of the Act, be introduced into interstate commerce.
10.D You realize that, because our goods are intended primarily for research purposes, they may not be on the Toxic Substances Control Act (TSCA) inventory. You assume responsibility to ensure that the goods purchased from us are approved for use under TSCA, if applicable. Consistent with your agreement to comply with all TSCA R&D substance exemption requirements applicable to the purchase, you agree and warrant that you will comply with all requirements necessary to maintain the R&D exemption, including using the R&D substance under the supervision of a technically qualified individual, maintaining all necessary labeling, and providing all necessary notifications. You also agree and warrant that you will use or sell (if otherwise so authorized) the R&D substance exclusively for R&D purposes or specified exempt commercial purposes. You specifically agree and warrant that you will not sell or distribute the R&D substance to consumers.
10.E You have the responsibility to conduct any research necessary to learn the hazards involved for any of your uses of goods purchased from us and to warn your customers, employees and any auxiliary personnel (such as freight handlers, etc.) of any risks involved in using or handling the goods. You agree to comply with instructions for use of the goods furnished by us, if any, and not to misuse the goods. If the goods purchased from us are to be repackaged, relabeled or used as starting materials or components of other products, you will verify our assay of the goods, qualify the goods provided by us for such applications, and comply with all governmental requirements relating to labeling or providing other communications to customers. You acknowledge that we provide Material Safety Data Sheets (MSDS) for our products, and that they are available electronically on our web site at www.psidmba.com, or in paper copy by calling our Customer Service number toll free at 1.866.402.2447, and that you are willing and able to access MSDS by these means. You also agree to inform your employees of the risks, if any, involved in using or handling the goods and to train and equip them to handle the goods safely.
10.F You acknowledge that products received from us are subject to U.S. export control laws and regulations. You represent and warrant to us that you will not, directly or indirectly, (1) sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from us to any destination, entity, or person prohibited by the laws or regulations of the United States, or (2) use the product for any use prohibited by the laws or regulations of the United States and/or your local jurisdiction, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.
You shall, at your own expense, indemnify us, defend us and hold us harmless from and against any and all losses, damages and expenses (including reasonable attorneys’ fees and other costs of defending any action) that we may incur as a result of any claim of negligence, breach of implied warranty, strict liability in tort, or other theory of law, by you, your officers, agents or employees, your successors and assigns, and your customers, whether direct or indirect, in connection with the use or resale of any goods sold pursuant hereto either as a standalone product or a component part or raw material of another product, or by reason of your breach of or failure to perform any of your obligations hereunder, except to the extent provided in Condition 9.2 above or caused by a breach by us of the express warranty set forth in Paragraph 7 herein. You shall notify us promptly of any incident involving goods sold pursuant hereto resulting in personal injury or damage to property, and you shall fully cooperate with us in the investigation of such incident and provide us with all related statements, reports and tests available to you.
Unless otherwise agreed, all technical assistance and information we provide to you regarding the goods will be provided gratis, and you assume sole responsibility for results obtained in reliance thereon. We make no warranty regarding such technical assistance or information.
This Contract shall be governed by and construed in accordance with the laws of the State of California; provided however, if you are a state of the United States, a city, town or other municipality, or a public university, college or other institution chartered under the laws of a state of the United States, the law of such state or the state in which the institution is chartered, excluding in all cases choice of law provisions and the United Nations Convention on Contracts for the International Sale of Goods. Our exercise of any option or failure to exercise any rights hereunder shall not constitute a waiver of our rights to damages for breach of contract and shall not constitute a waiver of any subsequent failure, delay, or breach by you. We may assign our rights and/or obligations under these Conditions to any person in whole or in part.
By submitting an order, you represent, warrant, and agree that:
(i) you will provide us with all information known to you regarding biological, radiological, and chemical hazards associated with the handling, transport, exposure to or other use of any materials you supplied to us.
(ii) you have the right to cause the sequences that you have requested us to manufacture to be manufactured by us and sold to you, that such sequences and the manufacture and sale thereof to you will not infringe or result from the misappropriation of the intellectual property rights, including without limitation patent, copyright, trademark and trade secrets, of any third party anywhere in the world (provided that the foregoing shall not be deemed a representation or warranty with respect to methods of manufacture employed by us), and that the materials you furnish to us will not infringe or result from the misappropriation of any such intellectual property rights.
(iii) the oligonucleotide products and components thereof sold to you shall be for your own internal research and development use only and shall not be resold or otherwise transferred or conveyed to any third party without our prior express written consent.