Terms and Conditions

General

The following terms and conditions of sale (the “Terms and Conditions”) apply to all quotations made and purchase orders accepted by DiscoveRx Corporation (“DISCOVERX”).  Unqualified acceptance of these Terms and Conditions by the buyer indicated on the face of this form (the “Buyer”) may be made by either: (1)  written acceptance, (2) placement of a purchase order with DISCOVERX that refers to a valid DISCOVERX quotation, or (3) receipt by Buyer of delivery of any of the DISCOVERX products described on the face of this form (the “Products”).  These Terms and Conditions, any additional Product specific terms and conditions accompanying a written quotation, and any literature accompanying the Products are collectively referred to as the “Agreement.”  Any terms or conditions in any purchase order or other document provided by the Buyer that are in addition to or inconsistent with any terms of the Agreement are expressly rejected by DISCOVERX and shall not be binding on DISCOVERX. 

Entire Agreement

The Agreement constitutes the entire agreement between DISCOVERX and the Buyer pertaining to the sale of the Products by DISCOVERX to the Buyer, and supersedes all previous communications, representations and agreements, whether oral or written, between the Buyer and DISCOVERX with respect to the sale of the Products.  This Agreement may not be modified, supplemented, qualified, or interpreted except in a writing signed by Buyer and DISCOVERX.

Prices, Taxes, Payment

Any written price quotation for the Products, accompanying this or any other form, shall become void unless accepted by Buyer within thirty (30) days after its sending by DISCOVERX, or if earlier revoked by DISCOVERX.  All prices quoted, all orders accepted, and all billings rendered are exclusive of all federal, state and local withholding, excise, sales, use and similar taxes, fees, or charges imposed by any governmental authority on this transaction.  Buyer will reimburse DISCOVERX for any such tax, fee or charge, at the time of sale or thereafter, that DISCOVERX is required to pay.  Terms of payment are net thirty days from the date of invoice.  In the event that payment is not received within such thirty-day period, any unpaid balance shall bear interest at the rate of l 1/2% per month, or the maximum amount allowed by law, if lower.  Any credit terms extended to Buyer may be changed or withdrawn completely by DISCOVERX at any time.  On any order for which credit is not extended by DISCOVERX, shipment or delivery shall require, at DISCOVERX’s election, cash with order (in whole or in part), or C.O.D. or sight draft attached to the bill of lading or other shipping documents, and all costs of collection shall be paid by Buyer.  If any proceeding is brought by or against Buyer under bankruptcy or insolvency laws, DISCOVERX shall be entitled to cancel any order by Buyer then outstanding. 

Cancellation

Cancellations of purchase orders by Buyer will be subject to DISCOVERX’s standard cancellation fees of 15% of the purchase order. In the case of standing orders, this fee applies only to the remaining balance on the order.

Title; Delivery; Acceptance

All sales are made F.O.B. DISCOVERX’s location in Fremont, CA to an agent of the Buyer, including a common carrier, notwithstanding any prepayment of freight by DISCOVERX.  Buyer will be responsible for shipping charges, and will reimburse DISCOVERX for all shipping costs DISCOVERX incurs.  Risk of loss shall pass to Buyer at the time the Products are delivered to such common carrier, and Buyer shall provide whatever insurance against loss or damage it considers necessary once the goods leave DISCOVERX.  In the event of any default by Buyer, DISCOVERX may decline to make further shipments until such default is remedied, without in any way affecting its rights under this Agreement. DISCOVERX will not be liable for delay or non-delivery of DISCOVERX products when caused by any cause beyond the reasonable control of DISCOVERX, including (without limitation) acts of God, fire, flood, tornado, earthquake, hurricane, lightning, government actions, actual or threatened acts of war, terrorism, civil disturbance or insurrection, sabotage, labor shortages or disputes, failure or delay in delivery by DISCOVERX’s suppliers or subcontractors, transportation difficulties, shortage of energy, raw materials or equipment, or Buyer’s fault or negligence.  Products delivered will be deemed accepted by the Buyer unless written notice of defect or shortage is received by DISCOVERX within thirty (30) days after Buyer’s receipt of such shipment.

Reagent Use License

Subject to the Agreement, Buyer shall have, in connection with the purchase of DISCOVERX chemical and biochemical reagent Products, a one-time, royalty-free use license solely for non-diagnostic research uses.  For additional rights transferred by purchase of the Products , please see product specific literature accompanying the Products.  Buyer shall not use the Products for testing in or treatment of humans or other animals, or any other use other than research.  Except as expressly set forth in the Agreement, no right or license to any intellectual property owned or licensable by DISCOVERX is conveyed or implied by the Agreement.  Buyer shall not transfer, resell, or distribute Products to any third party.

Security Interest

DISCOVERX reserves, until full payment has been received, a purchase money security interest in the Products sold.  Buyer agrees to execute any document appropriate or necessary to perfect the security interest of DISCOVERX, or in the alternative, DISCOVERX may file this form as a financing statement and/or chattel mortgage.

Assignment

Buyer shall not assign its purchase order or any interest therein or any rights or obligations under this Agreement without the prior written consent of DISCOVERX.  Any attempted assignment or delegation shall be null and void.

Technical Data

Buyer shall not, without DISCOVERX’s prior written consent, use, duplicate, or disclose any technical data or any information directly concerning the Products that is disclosed by DISCOVERX to Buyer, for any purposes other than for the use, operation or maintenance of Products purchased hereunder.

Governing Law and Venue; Non-Waiver

This Agreement and performance by the parties hereunder shall be construed in accordance with the laws of the State of California, U.S.A., without regard to provisions on the conflicts of laws, and shall not be governed by the United Nations Convention on Agreements for the International Sale of Goods.  Buyer and DISCOVERX consent to the exclusive jurisdiction of, and venue in, the state and federal courts of Alameda County, California, U.S.A.  The failure by DISCOVERX to enforce at any time any of the provisions in this Agreement will in no way be construed as a waiver of such or any other provision.

Indemnity

Buyer shall comply with all applicable federal, state or local laws, rules, regulations or ordinances (“Laws”) in performing under this Agreement and in storing and using the Products.  Buyer will indemnify, defend and hold DISCOVERX harmless from any and all expenses, damages, costs or losses resulting from any third party suit, claim or proceeding brought against DISCOVERX, either severally or jointly with Buyer, to the extent that such suit or proceeding arises from Buyer’s (a) non-compliance with Laws or (b) infringement of any intellectual property right by the use or combination of Product with another component or product (but not by the use of any Product alone).

Warranty

The Products sold hereunder shall conform at the time of shipment to the terms of DISCOVERX’s standard warranty for such Products, as stated in the package insert accompanying the Products.  Buyer’s sole and exclusive remedy, and DISCOVERX’s sole and exclusive obligation, under this warranty shall be, at DISCOVERX’s option, either replacement or refund of the purchase price of any non-conforming Products.  EXCEPT AS SET FORTH IN THIS SECTION, THE PRODUCTS ARE PROVIDED “AS IS,” AND DISCOVERX DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE DISCOVERX PRODUCTS SOLD HEREUNDER, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.  Nothing herein shall be construed as providing or intending to provide DISCOVERX’s warranty to Buyer set forth above to any customer(s) of Buyer.

Limitation of Liability

DISCOVERX SHALL NOT BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, NOR FOR ANY LOSS OF BUSINESS, LOSS OF USE OR OF DATA, INTERRUPTION OF BUSINESS, LOST PROFITS OR GOODWILL, OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT, EVEN IF DISCOVERX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.  THIS EXCLUSION APPLIES TO ANY LIABILITY THAT MAY ARISE OUT OF THIRD-PARTY CLAIMS AGAINST BUYER.  DISCOVERX’S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE PRICE PAID BY BUYER FOR SUCH PRODUCT.