Please Read Carefully! This Document Contains Very Important Information About Your Rights and Obligations, as well as Limitations and Exclusions that may Apply to You.
This Agreement contains the terms and conditions that apply to your purchase from the Phenomenex entity named on the invoice ("Phenomenex") that will be provided to you ("Buyer") on orders for chromatography and/or electrophoresis columns/media, related products and/or services and support sold in the United States. By accepting delivery of the chromatography and/or electrophoresis columns/media, other products and/or services and support described on that invoice, Customer agrees to be bound by and accepts these terms and conditions. THESE TERMS AND CONDITIONS APPLY (i) UNLESS THE CUSTOMER HAS SIGNED A SEPARATE PURCHASE AGREEMENT WITH PHENOMENEX, IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN; OR (ii) UNLESS OTHER PHENOMENEX STANDARD TERMS APPLY TO THE TRANSACTION. These terms and conditions are subject to change without prior written notice at any time, in Phenomenex's sole discretion.
ACCEPTANCE
Performance by Phenomenex is expressly made conditional on Buyer’s assent to the terms and conditions of this order acknowledgement. Buyer agrees to these terms and conditions which shall prevail over any inconsistent provisions in any form or other paper submitted by Buyer. Any additional or different terms in any Buyer request for quotation, acknowledgment, commencement, or purchase order shall constitute a counteroffer and such counter offer shall not be accepted by Phenomenex without written approval by Phenomenex. The provisions of any existing written contract between Phenomenex and Buyer for the same goods or services shall take precedence over any inconsistent terms or conditions contained in this Order Acknowledgement from Phenomenex. Phenomenex may, from time to time, change or supplement these terms and conditions.
These terms and conditions may NOT be altered, supplemented, or amended by the use of any other document(s). Any attempt to alter, supplement or amend this document or to enter an order for product(s) or services and support that are subject to additional or altered terms and conditions will be null and void, unless otherwise agreed to in a written agreement signed by both Customer and Phenomenex.
QUALITY
All purchases are subject to Phenomenex approval not withstanding prior payments and, if not in accordance with the specifications, may, at Phenomenex sole option, be returned to Phenomenex at Buyer’s expense for transportation. Phenomenex reserves the right to change product specifications, quantities, designs or prices without notice and without liability for such changes.
QUANTITY
Any goods shipped by Phenomenex in excess of the quantity designated in any Buyer Purchase Order or tolerance from quantity previously agreed to in writing may be returned by Phenomenex at Buyer’s sole expense. Buyer agrees to give reasonable notification to Phenomenex that the goods in question are being returned.
If Buyer wishes to change Buyer’s order, Buyer shall provide the following information to their Technical Representative: Order or confirmation number (beginning with "E"), along with the information to be changed, i.e., quantity and part numbers you wish to add and/or delete, billing or shipping address, purchase order, etc. If Buyer does not have a confirmation order, Buyer’s purchase order number, an approximate date of purchase and the billing or shipping name and address may allow Phenomenex to locate Buyer’s order. If items ordered have been manufactured or are already in transit, changes will be regarded as an "Order Cancellation".
PRICE
The price(s) set forth in any Phenomenex Order Acknowledgement are firm and shall not be changed without the prior written consent of Phenomenex. If no price is specified in this Purchase Order, the goods shall be invoiced at the current list price.
PAYMENT
Payment will be due net thirty (30) days from receipt on approved credit. Where other payment terms are specified on the Order Acknowledgement, payment shall be made in accordance with those terms and conditions. If your credit has not been established with Phenomenex, terms may be payment in advance or C.O.D.
Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for three (3) days following written notice thereof. Prices are subject to change without notice.
Cancellation of orders is subject to approval by Phenomenex. A minimum of 40% restocking/service charge will be applied.
SHIPMENT
Shipment of the goods shall be made in accordance with customary shipping practices for such goods. Unless otherwise stated in the Order Acknowledgement, no charge will be allowed for packing, boxing, cartage or insurance and Buyer shall absorb and pre-pay all shipping and insurance charges. Goods ordered in error or duplicated because mailed-in order and not clearly marked "CONFIRMING" will be subject to a 40% restocking charge, if approved by Phenomenex.
DELIVERY
Unless otherwise mutually agreed to in writing by the parties, delivery shall be FOB Shipping Point in the United States. Items are shipped by a fast/standard method unless otherwise specified, with shipping charges and insurance prepaid and added as a separate charge on your invoice. Buyer shall notify Phenomenex immediately of any situation which may delay or threaten to delay the timely acceptance of services and / or receipt of goods. Phenomenex, at its option, may cancel all or any portion of this Order Acknowledgement without liability. Acceptance of all or part of the goods, or payment therefore, or failure to notify Buyer promptly shall not waive or affect Phenomenex’s right to cancel the order or recover damages.
SERVICE AND SUPPORT
Phenomenex endeavors to provide the best customer and technical telephone support in the chromatography and separation science industry. For end-user Customers, Phenomenex promises that its support people will attempt to handle over the telephone any problem involving Phenomenex products. However, Phenomenex's support people may not be able to understand or resolve any given problem. Service offerings may vary from product to product. Phenomenex has no obligation to provide service or support until Phenomenex has received full payment for the product or service/support contract for which service or support is requested. Phenomenex will provide service and support to Buyer in the United States in accordance with the terms and conditions of the services and support policies and conditions in effect on the date purchased.
RISK OF LOSS
Unless otherwise specified in this Order Acknowledgement, title to and risk of loss will pass to Buyer when Phenomenex loads the products onto the commercial carrier at Phenomenex’s facility. Should Buyer receive damaged goods, it is imperative that Buyer save all packing materials for inspection by the carrier. Once the goods are turned over to the carrier by us, they become Buyer’s responsibility. While Phenomenex will assist Buyer, all claims should be reported to the carrier immediately. Failure to do so makes Buyer, liable for payments of those goods should damage claims be rejected by the carrier. All claims must be made within 7 days of receipt of goods.
PRODUCT LIMITATIONS
The products offered are for laboratory or manufacturing use only. They are not intended for medicinal or food use. Phenomenex assumes no responsibility if these products are used for medicinal or food purposes or are misused in any way. Phenomenex products are not intended for clinical use. While clinical applications may be shown, these products are not tested for clinical applications.
The products offered on this website are not intended for clinical use. Because they are not intended for clinical use, no claim or representation is made or intended for their clinical use (including, but not limited to diagnostic, prognostic, therapeutic or blood banking).
WARRANTY
Phenomenex warrants that Phenomenex holds clear title to all products transferred to Buyer under this agreement and is under no legal restraint which would prohibit transfer of possession or title to Buyer.
Unless a different written warranty is included with product literature or product website, Phenomenex warrants that the Products will operate or perform substantially in conformance with Phenomenex’s published specifications and be free from defects in material and workmanship, when subjected to normal, proper and intended usage by properly trained personnel, for the period of time set forth in the Product’s documentation, published specifications or package inserts. If a period of time is not specified in Seller's product documentation, published specifications or package inserts, the warranty period shall be ninety (90) days for (the "Warranty Period").
Phenomenex agrees during the Warranty Period, to repair, replace, refund or for columns repack, at Phenomenex’s option, provided that Buyer shall:
Shipment to Buyer of repaired or replacement Products shall be made in accordance with the Delivery provisions of the Terms and Conditions of Sale.
Warranty Exclusion: In no event shall Phenomenex have any obligation to make repairs, replacements or corrections required, in whole or in part, as the result of:
Notwithstanding the foregoing, Products supplied by Phenomenex that are obtained from an original manufacturer or third-party supplier are not warranted by Seller, but Seller agrees to assign to Buyer any warranty rights in such Product that Phenomenex may have from the original manufacturer or third party supplier, to the extent such assignment is allowed by such original manufacturer or third party supplier.
ASSIGNMENT
Buyer shall not assign, in whole or in part, to any person, firm, corporation or governmental agency, its rights, interests or obligations under any Phenomenex Order Acknowledgement without prior written approval from Phenomenex.
COMPLIANCE
Buyer agrees to indemnify Phenomenex and its customers and to hold Phenomenex and its customers harmless against all liability and expenses, including counsel fees, if Buyer fails to comply with the applicable laws, regulations and ordinances of the States and of the United States, Phenomenex may, in addition, cancel this Purchase Order in whole or in part, without further liability to Seller for failure to comply with this provision.
Buyer agrees and represents that it is buying for its own end use only, and not for resale. Buyer warrants that they have sufficient knowledge, training, facilities and skills to safely use and store products provided under this agreement.
FORCE MAJEURE
Neither party shall be liable to the other for failure to perform or deliver when and as specified if such failure to perform or deliver is caused by war, fire, flood, strike, labor dispute, accident, epidemic, riot, act of God, act of governmental authority, or other contingencies beyond the control of the non-performing party, and which interferes with the party’s ability to perform its obligations hereunder. Any deliveries suspended under this paragraph may be canceled without liability.
NON-EXCLUSIVITY
The parties understand and agree that neither these Terms and Conditions nor any Phenomenex Order Acknowledgement shall create rights or obligations of exclusivity inuring to the benefit of Buyer. Nothing in these Terms and Conditions or in any Phenomenex Order Acknowledgement shall limit the rights of Phenomenex to, at all times, provide goods and services to other buyers.
INDEPENDENT CONTRACTOR
Buyer is an independent contractor and is not an employee, agent, officer, joint venturer or partner of Phenomenex. Buyer is not authorized to assume or create any obligations or responsibilities, express or implied, on behalf of or in the name of Phenomenex. It is understood that the employees, methods, facilities and equipment of Buyer shall at all times be under its exclusive direction and control.
LIMITATION OF LIABILITY
IN NO EVENT WILL PHENOMENEX BE RESPONSIBLE OR LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOST PROFITS, OR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR CONTINGENT DAMAGES ARISING FROM OR RELATING TO THIS CONTRACT, EVEN IF PHENOMENEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PHENOMENEX’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, INCLUDING FOR ANY LIABILITY ON ACCOUNT OF A CLAIMED DEFECT IN ANY PRODUCT DELIVERED BY PHENOMENEX, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCT PAID BY BUYER ON WHICH THE CLAIM IS BASED.
GOVERNING LAW
These Terms and Conditions and any contract by any Purchase Order or Order placed hereunder shall be governed by the laws of the State of California without regard to it’s choice of law rules. Jurisdiction to resolve any dispute regarding these Terms and Conditions and/or Purchase Order is held by the state courts of the State of California located in the County of Los Angeles. Should the matter require federal jurisdiction, then jurisdiction shall be held by the federal courts located in the Central District of California.
SEVERABILITY
If any provision or any portion of this Purchase Order is determined to be invalid or unenforceable, the remaining provisions of this Purchase Order shall not be affected thereby, and shall be binding upon Phenomenex and Buyer, and shall be enforceable as though the invalid or unenforceable provision, or any part thereof, were not contained in this Order Acknowledgement.
INDEMNITY
Buyer and / or contractor will indemnify, defend and hold harmless Phenomenex and its customers from and against all liabilities, losses and expenses, including counsel fees and disbursements, arising from the breach of any of these Terms and Conditions, or for personal injury or property damage relating directly or indirectly to the performance of any goods or service provided.
CONFIDENTIALITY
All non-public, confidential or proprietary information of Phenomenex, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Phenomenex to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Phenomenex in writing. Upon Phenomenex's request, Buyer shall promptly return all documents and other materials received from Phenomenex. Phenomenex shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
AUDIT
During the performance of this Order Acknowledgement and for three (3) years thereafter, Buyer will maintain books, records and other documents relevant to any work done or goods provided under this Order Acknowledgement. Phenomenex will have access to and may copy such documents for the purpose of verifying Buyer’s performance and amounts paid to Phenomenex.
RECALL
Recall Notifications, if any, will be mailed to the “Ship To” address on the Order Acknowledgement.
HEADINGS
The section headings used herein are for convenience of reference only and do not form a part of these terms and conditions, and no construction or inference shall be derived therefore.
ADDITIONAL TERMS
This Order Acknowledgment may include additional terms as Phenomenex may make a part hereof by attachment or incorporation by reference when specified on the face hereof.
INDEPENDENT CONTRACTOR
Buyer is and shall perform this Agreement as an independent contractor and as such, shall have and maintain complete control over all of its employees and operations. Neither Buyer nor any person employed by it shall be, represent, act, purport to act, or to be deemed to be an agent, representative, employee or servant of Phenomenex.
EXCUSE OF PERFORMANCE
The obligation of Phenomenex to provide products and services pursuant to purchase order(s) may be suspended in the event of : (i) act of God, war, riot, fire, explosion, accident or flood; (ii) lack of adequate fuel, power, raw material, labor, containers, transportation or facilities; (iii) compliance with governmental requests, laws, regulations, orders, or other required licenses or approvals; (iv) breakage or failure of machinery or apparatus; (v) national defense requirements or any other event beyond the reasonable control of Phenomenex; (vi) labor trouble, strike or lockout, provided that Phenomenex shall not be required to settle a labor dispute against its own best interest; (vii) any such event that prevents the delivery, transportation, or acceptance of the products or service.
CURE PROVISION
Except with respect to non-payment for products or services rendered by Phenomenex, if either party commits a material breach concerning which the other party has given written notice to the party who allegedly committed the breached these terms and conditions shall none- the-less remain in effect of a period of sixty (60) days for the breaching party to cure the breach. If the breach is so cured, this Agreement shall remain in effect. In the event Buyer fails to pay any payment when due, Phenomenex shall notify Buyer orally or in writing of the non-payment (“Notice of Non-Payment). In the event Buyer fails to pay all sums pursuant to the Notice of Non-Payment within ten (10) days of the date of Phenomenex having given the Notice of Non-Payment, Phenomenex shall be entitled, at its sole election, to immediately terminate all services pursuant to these terms.
WAIVER
Any waiver by the Phenomenex of any provision or condition of this Agreement shall not be construed or deemed to be a waiver of any other provisions or conditions of this Agreement, nor a waiver of a subsequent breach of the same provision or condition unless such a waiver be expressed in writing signed by an authorized representative of Phenomenex.
ENTIRE AGREEMENT
These Terms and Conditions and any attached Exhibits constitute the entire agreement between Phenomenex and Buyer regarding the above listed subject matter and supersede all prior understandings, agreements and documentation relating to the Order Acknowledgement. All previous representations or agreements are superseded and annulled. No modification of this Agreement shall be binding on Phenomenex unless in writing and signed by an authorized representative of Phenomenex. In the event these Terms and Conditions are attached or incorporated into a previously authorized contract, that contract will be referenced on the face of this Order Acknowledgement. These Terms and Conditions will be in full force and effect to the extent they are not inconsistent with any previously authorized contract.
ATTORNEYS' FEES
In the event either party hereto is required to utilize the services of an attorney to enforce or construe any provision of this Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees. As used herein, the phrase “prevailing party” includes, but is not limited to a party against whom an action is voluntarily dismissed prior to trial.
ASSIGNMENT
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Phenomenex. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.