These terms (“Terms”) govern the purchase of molecular kits, probe sets, HCR amplifiers, buffers, reagents and other products (“Products”) by the purchaser (“Customer”) from Molecular Instruments, Inc. (“MI”) via the online store at www.molecularinstruments.com (“Website”). By placing an order on the Website, you agree to be bound by these Terms. Any terms or conditions that are different from, inconsistent with or in addition to these Terms, whether in a purchase order (PO), receipt, acceptance, confirmation, correspondence or otherwise, will not apply to the purchase of Products by Customer and are hereby rejected unless the parties specifically agree otherwise in a writing signed by both parties.
MI reserves the right to accept or reject any PO issued by Customer. Once a PO is accepted by MI, Customer may not cancel or modify such PO without MI’s written consent. MI may accept or reject any request to cancel or modify a PO in its sole discretion.
Prices exclude insurance, handling, shipping, taxes (including sales, goods and services, value-added or other taxes), fees, duties, and levies, all of which are payable by the Customer. Customer will reimburse MI for the foregoing. If applicable, Customer will provide to MI a tax exemption certificate acceptable to MI and applicable taxing authorities. Quoted prices are in US dollars ($) and are valid for thirty (30) days from the quote date.
Products will be shipped using a carrier selected by MI and packaged in a manner deemed suitable by MI. MI does not guarantee a delivery date and will not be responsible for any loss or damages resulting from a delivery delay irrespective of the cause of the delay. MI has the right to make partial deliveries. MI will deliver all Products EXW point of origin (Incoterms 2010) unless the parties specifically agree otherwise in a writing signed by both parties.
Customer will inspect each shipment of Products promptly upon arrival. Customer must notify MI of any damaged, missing or defective Products or erroneous shipments in writing within five (5) days after the date of receipt. For any claim made following inspection that MI determines to be valid, MI shall replace the product. The foregoing shall be Buyer’s sole and exclusive remedy for damaged, missing or defective products. Customer’s failure to notify MI in accordance with this provision will constitute an irrevocable acceptance of the Products (subject only to any later identified defects covered by the Limited Warranty described below).
As described in the MI Return Policy, MI does not accept returns. All sales are final.
MI will invoice the Customer at the time each Product is shipped. Payment is due in US dollars ($) thirty (30) days after the invoice date unless alternative payment terms are agreed to in writing by MI. In some cases, partial payment may be required before an order moves into production. MI may halt shipment of additional Products if Customer fails to make any payment when due. Late payments may incur a charge that is the lesser of two percent (2%) per month and the maximum allowed by law. Customer will pay MI’s reasonable attorneys’ fees and other costs incurred in collection of any late payments. If Customer disputes any charges set forth in an invoice, Customer must provide to MI a documented claim regarding the disputed amount within fifteen (15) days after the invoice date. Any invoice to which Customer has not so objected will be deemed accepted, and all claims by Customer regarding disputed charges not so objected are deemed waived. Upon receipt of any objection, MI will investigate such objection and notify Customer of the results of its investigation. Payment of amounts that MI determines to be owed as a result of the investigation must be made within fifteen (15) days after notice to Customer. Customer is required to pay all invoices to which no objection has been made regardless of the existence of disputes relating to other invoices, and Customer is not entitled to make setoffs with respect to amounts owed to MI. Payment is accepted by ACH or wire transfer. At MI’s discretion, payment may be accepted by credit card, in which case Customer agrees not to request a “charge back” or dispute charges with the credit card company.
Products are for internal research use only. Customer will not: (1) use Products for diagnostic purposes, (2) use Products for manufacturing quality control or testing, (3) offer Products for resale, (4) use Products to provide services to third parties, or (5) use Products for any purpose other than internal research or as otherwise expressly permitted by MI in writing.
Customers that wish to use Products for any purpose other than internal research, or that wish to obtain a license under certain patents listed on MI’s Patents page, should contact MI (firstname.lastname@example.org).
Customer bears the burden for safe use and handling of Products. The absence of hazard warnings does not imply that a material is not hazardous.
Catalog and Custom Products
MI maintains a database of available Products (“Catalog Products”). At Customer’s request, MI may design new Products (“Custom Products”). MI retains the right to add Custom Products to the database of Catalog Products to be offered for sale to all customers, and to share any sequence information related to such Custom Products with all customers. MI may, without notice, make changes in design, additions to or improvements in Products without liability or obligation to implement such change, addition or improvement in any Product previously manufactured. MI may discontinue or withdraw any Product, or revise Product information, without notice. Specifications, weights, dimensions and descriptions are actual or careful estimates but are not guaranteed and are subject to change without notice. MI reserves the right to furnish materially equivalent substitutes for any Product or part of a Product.
Sequence Information Responsibility
Customer shall be fully responsible for any sequence information supplied to MI, including the obtaining of all required consents, and Customer agrees to indemnify MI and its employees, officers, directors, representatives, contractors, suppliers, and any affiliates of the foregoing (“MI Team”), and hold each of them harmless from and against any losses, liabilities, demands, damages, costs and expenses, including reasonable legal fees and expenses, arising from or relating to such sequence information or its use. Customer agrees to fully cooperate with the MI Team and its counsel in its defense and preparation for any such action or proceeding.
Sequence Information Confidentiality
MI may at its sole discretion choose to share sequence information for one or more Products with Customer (e.g., to assist Customer’s research). Customer agrees that any sequence information provided by MI is MI’s confidential and proprietary information. Customer (1) will use MI’s sequence information only as necessary for performance of its internal research and not for any other purpose; (2) will disclose MI’s sequence information only to those members of Customer’s research team who have a need to know such sequence information for Customer’s internal research purposes and who are obligated to maintain the confidentiality of the sequence information; and (3) will not disclose MI’s sequence information to any person other than a member of Customer’s research team. Customer will take all reasonable measures to prevent any unauthorized use or disclosure of, or access to, the sequence information, including those measures Customer takes to protect its own confidential information of a similar nature. Customer will be fully responsible for any acts and omissions of its affiliates and any individuals or entities that receive sequence information directly or indirectly from or through Customer, including any breach of these Terms by its affiliates and any such individuals or entities.
If Customer provides MI with any ideas, proposals, suggestions or other materials related to the Products (“Feedback”), Customer hereby grants and agrees to grant to MI a non-exclusive, worldwide, fully sublicensable, fully paid-up, royalty-free, irrevocable, perpetual license, without additional consideration to Customer, to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify and otherwise use, analyze and exploit all such Feedback, in any format or media now known or hereafter developed, and for any purpose (including promotional purposes, such as testimonials).
Products reasonably determined by MI to be defective will be replaced by MI on a 1:1 like-kind basis at no cost to Customer, provided that such defective Products were used by Customer within six (6) months of receipt, and the defect was promptly reported upon discovery with appropriate detail to MI’s technical support team. This warranty does not apply to any defect caused by failure to provide suitable storage, use, or operating environment, use of non-recommended reagents, alteration of Products, or the use of the products for a purpose or in a manner (including in combination with other products not supplied by MI) other than that for which they were designed, or any other abuse, misuse, or neglect of the products. This warranty applies only to Customer, and not third parties. MI may, at its discretion, provide technical support or advice with respect to Products. Any suggestions by MI regarding use, selection, application or suitability of the products shall not be construed as a warranty. Descriptions or specifications appearing on the Website or otherwise provided by MI are meant to generally describe the Products and do not constitute express warranties. TO THE EXTENT PERMITTED BY APPLICABLE LAW, MI AND ITS SUPPLIERS DISCLAIM ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS AND SERVICES, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.
Customer acknowledges that Products may be subject to export controls under the US Export Administration Regulations and related US laws. Customer will: (1) comply strictly with all legal requirements established under these controls, (2) cooperate fully with MI in any official or unofficial audit or inspection that relates to these controls, and (3) not export, re-export, divert, transfer or disclose, directly or indirectly, any Product or related technical documents or materials or any direct product thereof to any country (or to any national or resident thereof) which the US Government determines from time to time is a country (or end-user) to which such export, re-export, diversion, transfer or disclosure is restricted, without obtaining the prior written authorization of MI and the applicable US Government agency. Customer will also comply with all applicable export and import control laws and regulations of any other territories in which Products are used. MI will not be liable for any delays in shipping, or inability to ship, Products resulting from or relating to any import or export laws.
EXCEPT TO THE EXTENT CAUSED BY MI’s GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR REQUIRED BY APPLICABLE LAW, MI SHALL HAVE NO LIABILITY FOR ANY LOSS OF USE OR PROFITS, LOSS OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES OF ANY KIND, HOWEVER CAUSED AND REGARDLESS OF FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF MI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MI’s AGGREGATE LIABILITY SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO MI FOR THE PRODUCTS. CUSTOMER UNDERSTANDS THAT THE RISKS OF LOSS HEREUNDER ARE REFLECTED IN THE PRICE OF THE PRODUCTS AND THAT THESE TERMS WOULD HAVE BEEN DIFFERENT IF THERE HAD BEEN A DIFFERENT ALLOCATION OF RISK.
Compliance with Laws
Customer will comply with all applicable laws and regulations relating to the use or operation of the Products.
In the event of a Product recall, Customer will cooperate with MI in conducting such recall.
All notices required or permitted by these Terms will be delivered in writing. Notices to Customer will be delivered to the email address or physical address specified by Customer in the applicable PO or otherwise provided to MI. Notices to MI will be delivered to email@example.com or 5015 Eagle Rock Blvd, Suite 301, Los Angeles, CA, 90041, USA.
Neither party will be responsible for or be considered to be in breach of or default under these Terms on account of any cause beyond such party’s reasonable control, including acts of God, war, terrorism, governmental action, fire, storm, flood, inability to procure materials, components or transportation from usual sources, or unforeseen operating or shipping difficulties. Allocation of supply in the event of a supply constraint will be in MI’s sole discretion based on outstanding firm purchase obligations.
If any provision of the Terms is found to be invalid or unenforceable by law, the remainder of the Terms shall remain in full force and effect, the invalid or unenforceable provision shall be deemed severed from the Terms, and the invalid or unenforceable provision shall be modified in good faith to reflect the original intent of the provision.
No failure or delay by any party in exercising any right, power or privilege under these Terms will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or any exercise of any right, power or privilege under these Terms.
Customer may not assign (directly or indirectly, by operation of law or otherwise) or delegate these Terms or its rights or obligations under these Terms without the prior written consent of MI. MI may freely assign and delegate these Terms, and these Terms will bind and inure to the benefit of MI’s successors and assigns.
No amendment, modification or waiver of these Terms will be valid unless set forth in a written instrument signed by the parties.
Governing Law; Venue
These Terms will be governed by the laws of the State of California without regard to conflict of law rules. The United Nations Convention on the International Sale of Goods will not apply to these Terms or any transactions contemplated hereby. Each party hereby irrevocably and unconditionally submits to the exclusive jurisdiction and venue of the state and federal courts of California, and each party hereby consents to personal jurisdiction in such forum, for any actions, suits or proceedings arising out of or relating to these Terms (and agrees not to commence any action, suit or proceeding relating thereto except in such courts). Notwithstanding the foregoing, nothing in these Terms will prevent MI from pursuing injunctive relief or filing any action to recover amounts owed to MI by Customer in any court having jurisdiction over Customer.
Unless otherwise expressly stated, “including” and “e.g.” are not exclusive or limiting (and will be deemed followed by “without limitation”), and words used in these Terms in the singular number will extend to and include the plural, and words in the plural number will extend to and include the singular. Section and other headings are for ease of reference only and are not to be used to interpret the meaning of any provision.
MI reserves the right, in its sole discretion, to update or replace these Terms at any time by posting revised or new Terms on the Website. The Terms governing a given PO will be those Terms that were posted on the Website at the time the PO was placed. Any revised or new Terms will not apply to POs placed prior to the date on which such revised or new Terms were posted on the Website.
For any questions about these Terms, please contact MI (firstname.lastname@example.org).
Last updated: July 9, 2020