These Terms and Conditions relate to the purchase and use of OEL Fastrac™ monographs, and apply to this quotation and, upon acceptance by the Purchaser, to the agreement between the parties. Any additional or differing terms or conditions proposed by Purchaser or included in Purchaser’s acceptance of any quotation or Purchase Order shall not become part of the agreement between the parties and are hereby expressly rejected, unless Affygility Solutions, LLC (“Affygility”) expressly agrees to such additional or differing terms in writing. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these Terms and Conditions or any purchase order or invoice, or any document in electronic or written form. If you object to any Terms and Conditions stated herein, such objection must be in writing and must reach Affygility before performance has begun.
Affygility will provide OEL Fastrac™ monographs to Purchaser outlined in the quotation. Prices for OEL Fastrac™ monograph include the fees for development of the monograph, but exclude all taxes of any kind (including without limitation withholding taxes, VAT, customs duties, etc. (“Taxes”)). The Purchaser is responsible for the payment to the applicable governmental tax authorities (or reimbursement to Affygility) of all Taxes imposed with respect to the agreement between the parties and the OEL Fastrac™ monograph provided thereunder, such that Affygility actually receives as a result of this “gross up” (or reimbursement) obligation the same amount as Affygility would have received in cash for the OEL Fastrac™ monograph if no such Taxes were paid or payable. Purchaser shall promptly provide Affygility with official tax certificates or other official documentation evidencing the payment of all such Taxes or the amounts being reimbursed to Affygility under this section.
Unless otherwise agreed to in writing by Affygility, Affygility quotations shall be valid for thirty (30) days from the date of issuance and effective only for purchase orders accepted within that period. All prices quoted are valid only if Purchaser’s requested delivery date (including any change orders) is within six (6) months of the date on which the original order is placed. All prices quoted do not include any required Taxes, which are all the sole responsibility of Purchaser as provided herein.
Unless otherwise agreed to in writing by Affygility, payment terms for all OEL Fastrac™ monographs are payable in advance either by credit card or by electronic wire transfer.
Affygility shall not be liable for any delay or failure to perform resulting from circumstances which are beyond Affygility’s reasonable control or which would cause Affygility to incur unreasonable expense in order to avoid such delay or to effect such performance including but not limited to acts of nature/God, acts of government, war, terrorist acts, whether certified or uncertified, labor disputes, Internet disruption, and delays in delivery or inability to deliver by Affygility’s suppliers.
Upon completion of the OEL Fastrac™ monograph, Affygility will deliver to Purchaser an electronic copy of the deliverables identified in the quotation. Notwithstanding such delivery Affygility retains all right, title and interest in and to the deliverables and Affygility hereby grants Purchaser a limited, personal, non-transferable, non-sublicensable, non-exclusive license to use, reproduce and distribute the deliverables, all of the foregoing solely for Purchaser’s internal business purposes and provided that Purchaser does not distribute or otherwise provide any deliverable to any third party. No portion of the OEL Fastrac™ monograph may be reproduced in any form or by any means, except as expressly permitted in these terms. Purchaser Agrees not to modify, rent, lease, loan, sell, distribute, reproduce, publicly display, publicly inform, or create derivative works based on the OEL Fastrac™ monograph or deliverables in any manner. Purchaser is authorized to use the OEL Fastrac™ monograph and any deliverables as guidelines to assist in the control of potential workplace health hazards (provided, however, that any such controls or ultimate use of the OEL Fastrac™ monograph and/or deliverables are the responsibility of Purchaser). These guidelines are intended for the use in the practice of occupational toxicology and industrial hygiene, and are to be interpreted and applied only by a person trained in these disciplines. The OEL Fastrac™ monograph and any related deliverables are not developed for use as legal standards, use in legal proceedings, or regulatory enforcement actions, and Affygility does not endorse their use as such. Affygility makes no representations regarding Purchaser’s use and implementation of the OEL Fastrac™ monograph and any deliverables. The OEL Fastrac™ monograph and any deliverables available may reference materials from third parties. Affygility may provide links to third-party websites as a convenience to Purchaser. Purchaser agrees that Affygility is not responsible for examining or evaluating the content or accuracy of any third-party materials and Affygility does not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third parties. Purchaser agrees that it will not use any third-party materials in a manner that would infringe or violate the rights of any third-party or Affygility.
If Purchaser cancels an order for OEL Fastrac™ monograph any time after the order is received and confirmed by Affygility, Purchaser may be subject to an additional charge. Purchaser shall not set off any anticipated credit amounts against outstanding invoices of Affygility without prior written approval of Affygility.
OEL Fastrac™ monograph and deliverables will be deemed to be accepted by Purchaser unless Purchaser notifies Affygility within a reasonable period of time (not to exceed thirty (30) days from date of delivery) of defect (“Rejection”). Purchaser shall notify Affygility in writing of the reason for Rejection and allow for on-site inspection, repair or replacement by Affygility.
ANY OEL FASTRAC™ MONOGRAPH PURCHASED HEREUNDER SHALL BE PERFORMED IN A PROFESSIONAL MANNER AND CONSISTENT WITH GENERALLY ACCEPTED INDUSTRY STANDARDS. EXCEPT AS EXPRESSLY STATED HEREIN, AFFYGILITY HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WHETHER STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING ITS OEL FASTRAC™ MONOGRAPH. Purchaser’s sole remedy for breach of Affygility’s service warranty shall be revision of the OEL Fastrac™ monograph or refund of the purchase price, at Affygility’s discretion.
Purchaser shall indemnify, defend, and hold harmless Affygility and its affiliates and its and their agents, employees, officers, directors, shareholders and contractors from any claims, losses, liabilities, expenses, costs, suits or damages, including reasonable attorney’s fees, and court costs arising out of (i) the Purchaser’s breach of these Terms and Conditions or any other agreement between the parties, or (ii) the use of the deliverables or any information contained therein by Purchaser or its agents or employees.
Any controversy or claim arising out of or relating to these Terms and Conditions, or breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the then current commercial arbitration rules published by the AAA (“Rules”). The parties will select one arbitrator in accordance with the procedures set forth in the Rules. Judgment upon the award rendered by the arbitrator may be entered in any court having competent jurisdiction thereof. The arbitrator is specifically empowered with the authority to award costs including attorney’s fees to the prevailing party. Any such arbitration will be conducted in Denver, Colorado.
IN NO EVENT SHALL AFFYGILITY BE LIABLE FOR LOSS OR CORRUPTION OF DATA, LOST PROFITS, BUSINESS INTERRUPTION LOSSES, THIRD PARTY LOSSES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES ARISING OUT OF ITS OEL FASTRAC™ MONOGRAPH. IN NO EVENT SHALL AFFYGILITY’S LIABILITY HEREUNDER, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AMOUNTS PAID TO AFFYGILITY FOR THE OEL FASTRAC™ MONOGRAPH PERFORMED HEREUNDER GIVING RISE TO THE CLAIM. No action, whether in contract or tort including negligence, may be brought by either party more than twelve (12) months after the cause of action has accrued, except that an action for non-payment may be brought within twelve (12) months of the date of the last payment.
The failure of either party to enforce at any time any provision of these Terms and Conditions shall not be construed to be a waiver of such provision or the right thereafter to enforce each and every provision. No waiver by either party, either express or implied of any breach of any of these Terms and Conditions shall be construed as a waiver of any other breach of such term or condition.
Neither party may assign or otherwise transfer its rights or obligations hereunder without the prior written consent of the other party, which shall not be unreasonably withheld; provided, however, that either party may assign this these Terms and Conditions in connection with any merger or sale of all or substantially all of its assets or equity. In the event of any such assignment, any and all obligations of the assigning party under these Terms and Conditions shall apply fully to any such assignee as if it were the assigning party under these Terms and Conditions. Any assignment in violation of the foregoing shall be deemed null and void. These Terms and Conditions shall inure to the benefit of the parties, their successors and permitted assigns.
The validity, interpretation, enforceability, and performance of these Terms and Conditions shall be governed by and construed in accordance with the law of the State of Colorado without reference to provisions concerning conflicts of law.
If Purchaser fails to pay amounts owing to Affygility when due relating to any accepted quotation, Affygility may terminate that quotation and subsequent quotations, whether pending or accepted. If Purchaser ceases to conduct its operation in the normal course of business (including inability to meet its obligations as they mature) or if any proceeding under any bankruptcy or insolvency laws is brought against Purchaser, or a receiver for Purchaser is appointed or applied for, or an assignment for the benefit of creditors is made by Purchaser, Affygility may terminate the quotation without liability, except for deliverables previously provided or for deliverables then completed and subsequently delivered in accordance with the terms of this quotation.
If any term or condition, or the application thereof, shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of these Terms and Conditions shall remain in full force and effect.
All notices required or authorized by these Terms and Conditions shall be given in writing and shall be deemed effective upon receipt. All notices shall be given (i) by a nationally recognized delivery service, (ii) by first class, registered or certified mail, postage prepaid, or (iii) by electronic mail (with confirmed receipt) to the address or email address, as appropriate, of the party specified in the purchase order or such other address or email as either party may specify in writing.
The parties intend that these Terms and Conditions shall be the final expression of their agreement with respect to the subject matter hereof and may not be contradicted by evidence of any prior or contemporaneous Terms and Conditions or agreement. The parties further intend that these Terms and Conditions shall constitute the complete and exclusive statement of its terms and that no extrinsic evidence whatsoever may be introduced in any judicial, administrative, or other legal proceeding involving these Terms and Conditions.