111 ANZA BLVD., SUITE 350, BURLINGAME, CA. 94010-1932 Tel: (650) 579-3959 Fax: (650) 579-3965 IRS: 94-306215400Terms and Conditions Applicable to the Sale of Goods:
1. Acceptance-Agreement: By purchasing and accepting delivery of products supplied by Kurt Orban Partners, LLC (“Products”) you agree to be bound by these terms and conditions (the “Terms”). Terms or conditions contained in any order form or other document submitted by you which are inconsistent with, or in addition to, the Terms herein are rejected, objected to and shall be deemed void and of no force or effect.
2. Changes: Once submitted, any change(s) to your order(s) may be made only with advance written approval of Kurt Orban Partners, LLC (“KOP”) and such changes may require different terms, including a change in the price and/or time of delivery. Once submitted, you may not cancel any order unless cancellation is expressly approved by KOP in writing, which approval may be contingent on your payment of KOP’s costs or other charges, including, but not limited to, storage and shipment costs, costs of producing non-standard materials, costs of purchasing non-returnable materials, cancellation costs imposed on KOP by its suppliers, and any other costs resulting from cancellation. A verified bill of costs issued by an officer or other authorized representative of KOP shall be conclusive as to the amount of such costs. KOP reserves the right to cancel any order, in whole or in part, upon your breach or anticipated breach of these Terms, or your bankruptcy, insolvency, dissolution, receivership proceedings, or upon the occurrence of any event leading KOP to reasonably question your willingness or ability to perform.
3. Delivery/Claims: All sales will be delivered Ex Works KOP's shipping point unless otherwise noted. If shipping and handling charges are quoted or invoiced, they will include charges in addition to actual freight costs. Delivery of Products to the carrier at KOP's shipping point shall constitute delivery to you and notwithstanding any terms to the contrary contained in any purchase order or order form submitted by you, you shall bear all risk of loss or damage to the Products in transit from the mill/supplier. The general method of shipment for each item is listed in KOP's product directory. However, KOP reserves the right, in its sole discretion, to determine the exact method of shipment for any particular shipment. Notwithstanding any terms to the contrary contained in any purchase order or order form submitted by you, KOP reserves the right to make delivery in installments, all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve you of your obligations to accept remaining deliveries. Immediately upon your receipt of any Products shipped hereunder, you shall inspect the same and shall notify KOP in writing of any claims for shortages, defects or damages and shall hold Products for KOP's written instructions concerning disposition. If you fail to notify KOP of any such claim within 30 days after the Products have been received by you, such Products shall conclusively be deemed to conform to the Terms herein and to have been irrevocably accepted by you.
4. Delays: Any specified delivery dates are estimates only and do not represent a promise by KOP to deliver Products at a date certain. Insofar as any transaction between you and KOP is governed by Article 2 of the Uniform Commercial Code, you expressly agree that the failure of KOP, for any reason, to deliver Products at any date certain is not an event triggering the remedies provided for in § 2-601. KOP’s time for performance shall be extended, and KOP 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 KOP's reasonable control, including, without limitation, unsuccessful reactions, acts or omissions of you, acts of the mill/supplier (including cancellation of supply) embargo or other governmental act, regulation or request affecting the conduct of KOP's business, fire, explosion, accident, theft, vandalism, riot, acts of war, strikes or other labor difficulties, lightning, flood, windstorm or other acts of God, delay in shipping or transportation (including the arrest of a vessel), or inability to obtain necessary labor, fuel, materials, supplies or power at current prices. In the event of delays in delivery or performance due to causes beyond KOP’s reasonable control, the date of delivery or performance shall be extended by the period of time KOP is actually delayed or as otherwise mutually agreed. If any such event continues for longer than 180 days, either party may terminate the order and you will pay KOP for work performed prior to termination and all reasonable expenses and losses incurred by KOP as a result of termination. If, for reasons other than the foregoing, KOP should default or delay or not deliver Products, your sole remedy against KOP is an option to cancel your purchase order, through prior written notice to KOP. In no event shall KOP be liable for your cost of cover.
5. Payment and Interest: Unless otherwise stated, payment in full shall be made within 30 days of invoice. KOP reserves the right to require an advanced deposit of up to 100% of the purchase price at the time of order or any time prior to delivery as a condition of performance. If for any reason KOP, in its sole and unfettered discretion, deems the ultimate collectability of the purchase price to be in doubt, KOP may, without notice to you, delay or postpone the delivery of the Products and may, at its option, change the terms of payment to payment in full or in part in advance, with respect to the entire undelivered balance of Products. In the event of default by you in the payment of the purchase price or otherwise, KOP, at its option, without prejudice to any other of KOP's lawful remedies, may defer delivery, cancel your order and any other order of you, or sell any undelivered products on hand for the account of you and apply such proceeds as a credit, without set-off or deduction of any kind, against the agreed upon purchase price, and you agree to pay the balance then due to KOP on demand. You agree to pay all costs, including, but not limited to, reasonable attorney and accounting fees and other expenses of collection resulting from any default by you in any of the terms hereof. Invoices remaining unpaid after their due date will be subject to an interest charge of 18% per annum (or the maximum rate allowed by law). You must pay all costs of collection on unpaid amounts, including (without limitation) attorneys’ fees and related costs.
6. Taxes and other charges: KOP shall not be responsible for the payment of any use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between, with the sole exception of any sales taxes invoiced and collected from you by KOP. All other such charges (if any) must be paid by you separately and in addition to the prices quoted or invoiced. In the event KOP is required to pay any such tax, fee or charge, you shall reimburse KOP therefore; or, in lieu of such payment, you shall provide KOP at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
7. Pricing: Any quotation provided by KOP is firm only if you place a corresponding order within the time specified on the quote or, if no time period is mentioned, within 5 days.
8. Warranties/Statute of Limitations: KOP warrants that its products shall, at the time of delivery, substantially conform to the description of such products as provided to you by KOP through KOP's product directory, analytical data or other then-current literature. The parties expressly agree that the remedies set forth in § 2-601 of the Uniform Commercial Code are not available to Buyer. This warranty is exclusive, and KOP makes no other warranty, express or implied, including any warranty of merchantability, fitness for any particular purpose, or non-infringement of any third-party patent or intellectual property rights. KOP's warranties made in connection with this sale shall not be effective if KOP has determined, in its sole discretion, that you have misused the Products in any manner, have failed to use the Products in accordance with industry standards and practices, or have failed to use the Products in accordance with instructions, if any, furnished by KOP. KOP’s sole and exclusive liability and your exclusive remedy with respect to products proved to KOP’s satisfaction to be defective or nonconforming shall be replacement of such products without charge or refund of the purchase price, in KOP’s sole discretion, upon the return of such products in accordance with KOP’s instructions. KOP shall not in any event be liable for incidental, consequential or special damages of any kind resulting from any use or failure of the products, even if KOP has been advised of the possibility of such damage including, without limitation, liability for loss of use, cost of capital, loss of work in progress, down time, loss of revenue or profits, failure to realize savings, any liability of buyer to a third party, or for any labor or any other expense, damage or loss occasioned by such product including, but not limited to, personal injury or property damage unless such personal injury or property damage is caused by KOP’s gross negligence. The exclusion of such damages and/or claims shall be deemed independent of, and shall survive, any failure of the essential purpose of any limited remedy arising from the purchase and/or these Terms. KOP’s liability for damages hereunder shall in no case exceed the contract price for the specific products that give rise to the breach. The exclusions and limitations on damages shall apply regardless of how the loss or damage may be caused and against any theory of liability, whether based on contract, indemnity, warranty, tort, negligence, strict liability, or any other theory. All claims must be brought within one (1) year of shipment, regardless of their nature.
9. Returns: Products may not be returned for credit except with KOP's permission, and then only in strict compliance with KOP's return shipment instructions. You must obtain advance written authorization from KOP and a written return authorization document in the form then in use by KOP, prior to returning any Products. Certain items and quantities may not be returned for credit or under any circumstances. These items include, but are not limited to: diagnostic reagents, refrigerated or frozen products; reagents and standards which have passed their expiration dates; custom products or special orders; products missing labels, parts, or instruction manuals; and books, computer software and equipment removed from their original packaging. Any returned items may be subject to a 20% processing fee and must be returned within 90 days of purchase.
10. Miscellaneous: KOP's failure to strictly enforce any particular term or condition contained herein or to exercise any right with respect to your order shall not constitute a waiver of KOP's right to strictly enforce such terms or conditions or exercise such right thereafter. All rights and remedies are cumulative and are in addition to any other rights and remedies KOP may have at law or in equity. Any waiver of a default by you shall be in writing and shall not operate as a waiver of any other default or of the same default thereafter. If any of these terms shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. The section headings herein are for convenience only; they form no part of the Terms and shall not affect their interpretation. These Terms shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto, and their respective heirs, personal representatives, successors and assigns.
11. Choice of Law: Any dispute relating to any purchase of Products or any contract formed hereunder, or the validity of any such contract shall be subject to the exclusive jurisdiction of the courts of California and Texas and governed by and interpreted according to those states’ respective laws, without regard to principles of conflict of law, as the same may be from time to time in effect, including, without limitations the Uniform Commercial Code as in effect in the State of California and the State of Texas, respectively.The parties hereto agree that all actions or proceedings arising in connection with or relating to any purchase of Products or any contract formed hereunder shall be tried and litigated exclusively in the state and federal courts located in the County of San Francisco, State of California, U.S.A and the County of Harris, State of Texas, U.S.A. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between the parties with respect to or arising out of this Agreement in any jurisdiction other than that specified in this paragraph. Each party hereby waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this paragraph, and stipulates that the State and Federal courts located in the County of San Francisco, State of California, U.S.A. and the County of Harris, State of Texas, U.S.A. shall have in personam jurisdiction and venue over each of them for the purpose of litigating any dispute, controversy, or proceeding arising out of or related to any purchase of Products or any contract formed hereunder. To the extent not prohibited by applicable law, the parties hereby knowingly, voluntarily, and intentionally waive any right to trial by jury that either party may have in any action or proceeding, in law or in equity, in connection with this sales order.
THIS FORM CONSTITUTES THE ENTIRE AGREEMENT AND SUPERSEDES ALL PRIOR AGREEMENTS, EITHER WRITTEN OR ORAL. KOP’S ACCEPTANCE OF ANY ORDER FORM PROVIDED BY BUYER IS EXPRESSLY MADE CONDITIONAL ON BUYER’S ASSENT TO THE TERMS HEREIN (“THE TERMS”), AND KOP AGREES TO SELL THE PRODUCTS ONLY UPON THE TERMS, AND NO OTHERS. BUYER’S ASSENT TO THE TERMS SHALL BE DEEMED GIVEN UNLESS BUYER NOTIFIES KOP IN WRITING OF BUYER’S SPECIFIC OBJECTIONS TO CERTAIN TERMS WITHIN TEN (10) DAYS AFTER THIS FORM OR ANY SALES ORDER IS ISSUED, WHICHEVER IS SOONER. THE MERE TENDER BY BUYER OF ITS OWN TERMS AND CONDITIONS OR OTHER SUCH FORM SHALL NOT BE DEEMED A SPECIFIC OBJECTION.
Please address all mail post office box 2010. Couriers please use street address (zip 94005).