Terms and Conditions of Use of Promega Websites
You agree that these Terms and Conditions apply to you when you view, access or otherwise use any website owned by Promega Corporation or its affiliates (in each such case, the “Website”). The Website is owned by Promega. Promega grants you a nonexclusive, nontransferable, limited right to access and display the Website and the materials provided on the Website and make the downloads permitted under the heading “Copyright Notice” below, provided that you comply fully with these Terms and Conditions of Use.
- Accuracy. All data and information provided on this site is for informational purposes only. Promega makes no representations as to accuracy, completeness, currentness, suitability or validity of any information on the Website and will not be liable for any errors, omissions or delays in this information or any losses, injuries or damages arising from its display or use. All information is provided on an AS-IS basis.
- Opinions. Any opinions expressed on the Website, and those providing comments, are those of the individual authors alone, and do not necessarily reflect the opinions of Promega or any of its agents or employees.
- Copyright Notice. All materials published on or used on the Website are protected by copyright, and are owned or controlled by or licensed to Promega, or the party listed as the provider of the materials. UNAUTHORIZED COPYING, REPRODUCTION, REPUBLISHING, UPLOADING, POSTING, TRANSMITTING OR DUPLICATING OF ANY OF THE MATERIAL IS PROHIBITED. You may download any downloadable materials displayed on the Website only for personal, noncommercial and informational purposes, provided that the documents are not modified and provided you maintain and abide by all copyright, trademark and other notices contained in such material.
- Copyright Notification. Promega respects the intellectual property rights of others. Upon proper notice, Promega will remove user-posted comments, posts, messages or other submissions on or to the Website that violate copyright law, or suspend access to the Website (or any portion thereof) to any user who repeatedly uses the Website in violation of copyright law. Pursuant to 17 U.S.C § 512, Promega has implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If you believe your work has been used in a way that constitutes copyright infringement, please send Promega a notification of claimed infringement with all of the following information: (a) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (b) identification of the claimed infringing material and information reasonably sufficient to permit Promega to locate the material on the Website; (c) information reasonably sufficient to permit Promega to contact you, such as an address, telephone number and, if available, an e¬mail address; (d) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (e) a statement by you that the above information in your notification is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; (f) your physical or electronic signature; and (g) such other information as we reasonably request, in the form we reasonably request, to ensure that the Notice of Infringement will not give rise to any adverse claim including for unjustified threats. Please provide us with a notice that includes all of the above enumerated information (“Notice of Infringement”) and fax or mail it to the following address:
Attn: General Counsel
2800 Woods Hollow Road
Madison, WI 53711
By submitting a Notice of Infringement, you acknowledge and agree that Promega may forward your Notice of Infringement and any related communications to any users who posted the material identified in such notice.
- Commercial Use of Promega Website Materials and Screenshots. Reproduction, copying or redistribution of materials on the Website for commercial purposes is prohibited without the express written permission of Promega.
- Links to Other Websites, Websites and/or Materials. Links may appear on the Website that may be used to link to other Website(s) or websites. These links are provided solely as a courtesy to our Website visitors. Promega has no control over the linked sites or the materials, information, goods or services available or contained on these linked sites. Promega is not responsible for and does not endorse or warrant in any way any materials, information, goods or services available through such linked sites or any privacy or other practices of such sites. If you decide to access any of the linked sites, you do so entirely at your own risk. Promega reserves the right to terminate any link at any time.
- Prohibited Actions. You agree not to interrupt, or attempt to interrupt, the operation of the Website in any way. Unauthorized use or modification of any information stored on the Website may result in criminal and/or civil prosecution under federal, state and local law. You may not use the Website for anything other than a lawful and legitimate purpose. You agree not to use the Website to carry out any unauthorized alteration of any data or information on the Website or to conduct any activity that infringes on the copyright, patent, trademark, service mark or other rights of any person or entity. You shall not restrict or inhibit any other user from using and enjoying any service conducted on the Website. The Website is not intended for use by anyone under the age of 18. We reserve the right to limit or deny your access to the Website or take other appropriate action if you violate any provision of these Terms and Conditions of Use or if you conduct any activity that violates the rights of any person or entity, or which we in our sole discretion deem unlawful, offensive, threatening, abusive or potentially harmful or malicious.
- Modification of Terms and Conditions of Use. We reserve the right to make changes to these Terms and Conditions at any time. If we propose to change these Terms and Conditions, we will display at least 2 weeks’ prior notice of the change on www.promega.com or such other site as we consider will give appropriate notice of the change. Your continued use of the Website constitutes your agreement to comply with such revisions, so you should visit a Website page from time to time.
- E-mail May Not Be Used to Provide Notice. Communications made through the Website’s e-¬mail and messaging system shall in no way be deemed to constitute legal notice to Promega or any of its officers, employees, agents or representatives, such as where notice to Promega is required by contract, or any federal, state or local laws, rules or regulations.
- Disclaimer; Limitation of Damages.
- Promega expressly disclaims all liability for any viruses or other contamination of your computer system or other device used to access the Website as a result of your use of the Website, and expressly disclaims all liability for actions taken or not taken based on any or all of the contents of the Website. THE WEBSITE IS PROVIDED “AS IS,” WITHOUT ASSURANCES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, CONDITIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, PROMEGA NEITHER MAKES NOR GIVES ANY ASSURANCES (WHETHER WARRANTIES OR CONDITIONS OR OTHERWISE) OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, THAT ACCESS TO OR OPERATION OF THE WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE.
- USE OF THE WEBSITE IS AT YOUR OWN RISK. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING AND/OR USE OF FILES, INFORMATION, OTHER COMMUNICATIONS, CONTENT OR OTHER MATERIAL (INCLUDING, WITHOUT LIMITATION, SOFTWARE) ACCESSED THROUGH OR OBTAINED BY MEANS OF THE WEBSITE.
- IMPORTANT NOTE: The previous provisions of this Disclaimer; Limitation of Damages section do not apply to the extent they would be unenforceable or otherwise contrary to laws which provide for mandatory consumer rights and which are applicable to these Terms and Conditions. Some mandatory laws, for example, provide for nonexcludable consumer guarantees. To the extent such laws apply to these Terms and Conditions, you agree that our liability to you in respect of matters under these Terms and Conditions will be limited to the maximum extent permitted by such laws.
- Applicable Laws; Venue. (a) The display of the Website alone does not subject Promega to any specific jurisdiction. Access to the Website from any territory where the content is illegal is prohibited. If you choose to access the Website from other locations, you do so at your own risk and are solely responsible for compliance with any and all applicable laws, rules and regulations. You may not use or export any of the Website materials in violation of U.S. export laws and regulations. (b) Any claim related to the use of the Website or to the Website materials shall be governed by, construed and enforced in accordance with the laws of the State of Wisconsin as applied to agreements made and to be performed entirely therein. Any action arising out of or related to the access, use, content or existence of the Website shall be filed only in the appropriate state or federal court located within the State of Wisconsin. The access, viewing or use of the Website constitutes the user’s express permission and consent to the jurisdiction of the state and/or federal courts of the State of Wisconsin for purposes of such actions. (c) The references to the State of Wisconsin in para (b) of this section do not apply to the extent they would be unenforceable or otherwise contrary to laws which provide for mandatory consumer rights and which are applicable to these Terms and Conditions. Some mandatory laws may require the governing law or the forum for the determination of disputes to be other than those of the State of Wisconsin.
Promega Purchase Order Terms and Conditions
CONTRACT TERMS AND CHOICE OF LAW
This purchase order is intended as an offer to purchase the materials or services specified on the face hereof and upon the terms and conditions stated herein, and any reference to the Seller’s quotation or similar form is solely for the purpose of describing the materials. This offer expressly limits acceptance to the terms and conditions stated herein, and none of the terms and conditions stated herein may be added to, modified, superseded or otherwise altered except by writing signed by Buyer. Each shipment received by Buyer from Seller shall be deemed to be subject only to the terms and conditions stated herein, notwithstanding any terms and conditions that may appear in Seller’s quotation, acknowledgment, invoice or other form, and notwithstanding Buyer’s acceptance and/or payment for the materials. This Purchase Order shall be construed and enforced in accordance with laws of the State of Wisconsin.
Clear title to the materials sold hereunder shall pass to Buyer with payment of all money due under the agreed purchase contract. Notwithstanding the foregoing, if Seller ceases to conduct its normal business operations, including, without limitation, failing to meet its obligations as they mature, or if any bankruptcy or insolvency proceeding is brought by or against Seller, or a receiver for Seller is appointed or applied for or an assignment of substantially all the assets of Seller for the benefit of creditors is made by Seller, then Seller irrevocably grants, assigns and transfers all right, title and interest in and to all drawings, illustrations, pictures, descriptions, plans and characteristics (collectively, the “Plans”) pertaining to the materials and services specified on the face hereof, including, without limitation, as may be reasonably necessary for Buyer to use the Plans internally, or engage a third party to use the Plans, to complete the work and deliver the materials and services specified on the face hereof. At Buyer’s request, Seller shall execute and deliver any documents and instruments reasonably necessary to effect the transfer of rights provided for in the immediately preceding sentence.
Upon request from Buyer, Seller shall furnish to Buyer an insurance carrier’s certificate showing that Seller has adequate Workers’ Compensation, Public Liability and Property Damage insurance coverage. Said certificate shall set forth the amount of coverage, policy number and date of expiration. Seller shall maintain:
- Commercial General Liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence and one million dollars ($1,000,000) annual aggregate covering any and all damage to property or injury to or death of persons arising from or out of installation and/or operation of any materials sold hereunder and/or performance of any work hereunder.
- Excess or Umbrella Liability insurance extending over the required Commercial General Liability and Employer’s Liability in an amount not less than two million dollars ($2,000,000) per occurrence and two million dollars ($2,000,000) annual aggregate.
- Workers’ Compensation insurance as provided by statute and Employer’s liability insurance of at least one hundred thousand dollars ($100,000) per employee.
Seller shall furnish a certificate of coverage naming Buyer as an additional insured prior to award of contract and warrant that the same levels of coverage be maintained annually. Seller’s insurance coverages will apply on a primary and non-contributory basis to those of Buyer. Seller’s General Liability policy will include a waiver of subrogation in favor of Buyer.
Seller expressly warrants that all of the materials sold hereunder (1) will conform to any and all final specifications, drawings, plans, instructions, samples or other descriptions, whether express or implied, furnished by Buyer and agreed by Seller; (2) will be fit and sufficient for the purpose(s) for which they were manufactured and sold, and if Seller knows or has reason to know of any other particular purpose or which Buyer intends to use such materials, such materials will be fit for such particular purpose; (3) will be new and merchantable; and (4) will be of good material and workmanship and free from defects, whether latent or patent. Seller further warrants to Buyer that Seller has, or will have at the time of delivery hereunder, good and marketable title to such materials, free and clear of all liens, privileges, encumbrances, claims and other security interests. The foregoing warranties shall survive Buyer’s inspection, acceptance, use and subsequent dispossession or sale of the materials sold hereunder. Seller hereby extends to Buyer any and all warranties received from Seller’s suppliers and agrees to enforce such warranties on Buyer’s behalf. All of Seller’s warranties shall run to Buyer and its successors, assigns and users of materials sold hereunder. The foregoing warranties and remedies shall be in addition to any warranties and remedies of additional scope herein or otherwise provided by Seller to Buyer or otherwise provided by law, including, without limitation, any and all warranties provided in the Uniform Commercial Code. Seller shall compensate, indemnify and hold Buyer harmless from and against any and all damages, including incidental and consequential damages, claims, liabilities and expenses (including court costs and attorneys’ fees) arising out of or relating to or resulting in any way from a breach of any warranty herein, whether express or implied, or from any act or omission of Seller, its officers, agents, employees or subcontractors.
Seller shall indemnify and hold Buyer harmless from any and all liability, losses, damage, claims and courses of action, and expenses connected therewith (including, without limitation, reasonable attorneys’ fees and legal expenses) caused or asserted to have been caused, directly or indirectly, by any infringement or alleged infringement of any United States or foreign patent, or other proprietary rights of any third party, based on Buyer’s ownership or proper use of the materials delivered hereunder, in accordance with all requirements provided by Seller to Buyer. In the event Buyer is enjoined from using any part of the materials delivered hereunder due to the alleged infringement of any patent granted by the United States or foreign government, or other proprietary rights of any third party, Seller shall, at Buyer’s election in its sole discretion, either (1) purchase for Buyer the right to continue Buyer’s use of the subject materials; (2) modify the subject materials so to that they are no longer infringing, without loss or functionality; or (3) replace the subject materials with materials of equal or better quality and the same functionality that is not infringing.
DELIVERY AND RISK OF LOSS
Unless otherwise stated on the face hereof, all materials are to be furnished DDP (point of destination), Incoterms 2010, and no charges will be allowed for freight, transportation, crating, handling, demurrage or for any other matter relating to the delivery of the materials to Buyer unless authorized in writing by Buyer. The entire risk of loss, injury or destruction of the materials, regardless of the point of destination and cause thereof, shall be borne by the Seller until the materials are delivered to and accepted by Buyer. All deliveries are to be tagged with the purchase order number that appears on the face hereof, and no partial deliveries shall be permitted without prior written authority of Buyer.
TIME OF DELIVERY
Time is of the essence with respect to the delivery date specified on the face hereof. Seller agrees to compensate Buyer for any damages that Buyer may incur as a result of Seller’s failure to deliver on time. In addition, Buyer reserves the right to cancel all or any portion of this order that is not delivered on time.
INSPECTION AND ACCEPTANCE
The materials shall be subject to inspection upon delivery, and the materials may be rejected for defects or faults revealed by such inspection or by analysis or the use thereof at any time thereafter. Rejected materials may be returned to Seller for full refund, including any transportation charges paid by the Buyer.
Buyer reserves the right to cancel all or any part of this order which has not actually been shipped by Seller, in the event Buyer’s business is interrupted because of strikes, labor disturbances, fires, acts of God or any other cause beyond the reasonable control of Buyer.
Only Purchase Orders issued and approved by Buyer’s purchasing personnel are legally binding. Invoices for each Purchase Order must be invoiced separately. All payments must be made by presentation of written invoices to Promega’s Accounts Payable Department and processed through the appropriate Buyer account payable process. Payment terms shall be net 45 days from receipt of invoice, unless otherwise agreed in writing by the parties.
Buyer will pay any sales, use, local or any other taxes which may be due as a result of this transaction, other than income taxes owed by Seller.
All information contained in any drawings, blueprints, specifications, samples, purchase commitments and other material submitted by Buyer to Seller hereunder is exclusively proprietary to Buyer and shall be returned to Buyer upon request or upon completion, termination or cancellation of this Purchase Order. Seller shall keep all such information strictly confidential and shall not, without Buyer’s prior written consent, use such information in whole or in part for its own benefit, or disclose such information in whole or in part to any other party.
If any court of competent jurisdiction determines that any provision of these terms and conditions is invalid or unenforceable, then such invalidity or unenforceability shall have no effect on the other provisions hereof, which shall remain valid, binding and enforceable and in full force and effect, and such invalid or unenforceable provision shall be construed in a manner so as to give the maximum valid and enforceable effect to the intent of the parties expressed herein.
No changes shall be made to any of the terms herein unless agreed to in writing by an authorized representative of Seller and Buyer, and authorized by Buyer’s revised purchase order.
TERMS AND CONDITIONS OF SALE
Unless a separate agreement has been executed between the parties for the goods or services, Promega’s standard Terms and Conditions of Sale will govern the transactions contemplated herein.
BASIS OF SALE
- Promega Corporation (“Promega”) will sell and the person, firm, company or institution (“Buyer”) will purchase the goods listed on Promega’s current product and price list (“Products”) subject to these terms and conditions.
- No quotation given by Promega shall constitute an offer to supply the Products. An order placed by Buyer, whether or not in response to a quotation, shall constitute an offer made to Promega subject to these terms and conditions. No terms or conditions put forward or implied by Buyer, in the order, correspondence or elsewhere, shall be binding on Promega and such conditions or stipulations are hereby excluded and extinguished.
- All contracts for Products are subject to availability.
- Any error or omission in any quotation, catalog, sales literature, invoice or other document issued by Promega shall be subject to correction by Promega without liability to Promega.
- Buyer shall be responsible to Promega for the accuracy of all orders. In the event of a discrepancy between a catalog number and its product description, the catalog number will be used to satisfy the order.
- Buyer shall be responsible to Promega for all confirmation orders to be clearly marked “CONFIRMATION” to avoid duplication of an order.
- All Buyer’s orders are subject to Promega’s acceptance.
- Promega reserves the right to make changes in the specification of Products ordered which do not materially affect quality or performance of the Products.
- Unless specifically agreed otherwise, the price for the Products will be that as shown in Promega’s current online catalog at the time of delivery.
- The price is exclusive of Value Added Tax (VAT) and all other similar sales taxes, fees or charges, as applicable. If Promega is required to pay any such tax, fee or charge, Buyer shall reimburse Promega or, at the time of order, Buyer shall provide Promega with an exemption certificate acceptable to the relevant taxing authorities.
- Promega reserves the right to charge a fuel surcharge, delivery, packaging and/or handling charge on all orders.
- If Buyer is tax exempt, Buyer shall provide to Promega a tax exemption certificate from time to time upon request by Promega.
- Payment terms are net 30 days from date of invoice. No offsets, settlement discounts or other deductions of any kind may be made against amounts due.
- The time for payment shall be of the essence for all Products. In the event of default in payment by a due date, Promega reserves the right, without prejudice to other rights, to (a) charge interest at the Applicable Federal Rate +2% per annum as of the time of default and/or (b) suspend further deliveries.
- Promega reserves the right to withhold delivery of all Products until payment of all amounts owed in respect thereof is confirmed.
- All amounts due are payable in invoiced currency unless otherwise agreed in writing.
- All costs, including, without limitation, legal expenses incurred by Promega in recovering overdue debts will be payable by Buyer.
DELIVERY AND RETURN
- Unless agreed to otherwise by Promega in writing, all sales are EXW (origination point) Incoterms 2010. Promega reserves the right to make delivery in installments. Customer acknowledges that the Products are subject to US export control laws and regulations.
- Products supplied will not be accepted for return unless returned in accordance with an authorization issued by Promega.
PRODUCT USE LIMITATIONS; Trademarks, Service Marks and Patents
- The purchase of a Product only conveys to customer the nontransferable right to use the Product purchased in compliance with the applicable intended use statement, limited use statement or Limited Use Label Licenses (LULL) if any, in Promega's catalogs, on its website (see http://www.promega.com/lull), or on the label or associated documentation. Unless agreed to by Promega in writing, Buyer receives no right to resell the Product purchased hereunder.
- Please see Technical and Legal References section of the current catalog or the Promega Patent and Trademark Page for other applicable acknowledgements, disclaimers, trademarks, service marks and patent information.
- Product claims are subject to change. Please contact Promega Technical Services or access the Promega online catalog for the most up-to-date information on the Products.
- Applications mentioned in Promega's literature are provided for informational purposes only. Promega does not warrant that all applications have been tested in Promega laboratories using Products.
- Products labeled "For Laboratory Use" are intended For Research Use Only outside the United States.
WARRANTIES AND LIABILITIES
- Each Product is warranted to meet or exceed the specifications stated in either the materials sent with the Product, or if no such materials are so provided, the specifications for such Product posted on Promega’s online catalog at the time of sale.
- THE WARRANTIES IN THESE TERMS AND CONDITIONS ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, SAID WARRANTIES BEING EXPRESSLY DISCLAIMED.
- Buyer agrees that its sole and exclusive remedy against Promega shall be limited to the repair and replacement of Products or parts of Products, provided Promega is promptly notified in writing, prior to the expiration of the applicable warranty period, of any defect. This exclusive remedy shall not be deemed to have failed of its essential purpose so long as Promega is willing and able to repair or replace the Products or parts of Products. THIS PARAGRAPH STATES BUYER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY.
- The statute of limitations applicable to all claims arising under these Terms and Conditions shall be one (1) year from the date the claim accrues. THE MAXIMUM LIABILITY, IF ANY, OF PROMEGA FOR ALL DIRECT DAMAGES, INCLUDING WITHOUT LIMITATION CONTRACT DAMAGES AND DAMAGES FOR INJURIES TO PERSONS OR PROPERTY, WHETHER ARISING FROM PROMEGA’S BREACH OF THESE TERMS AND CONDITIONS, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY OR TORT WITH RESPECT TO THE GOODS, OR ANY SERVICES IN CONNECTION WITH THE GOODS, IS LIMITED TO AN AMOUNT NOT TO EXCEED THE PRICE OF THE GOODS. IN NO EVENT SHALL PROMEGA BE LIABLE TO BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUES AND PROFITS, EVEN IF PROMEGA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE RIGHT TO RECOVER DAMAGES WITHIN THE LIMITATIONS SPECIFIED IS BUYER’S EXCLUSIVE ALTERNATIVE REMEDY IN THE EVENT THAT ANY OTHER CONTRACTUAL REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
HAZARDS AND TOXICITY
- All Products offered by Promega are intended for use by qualified professionals who are trained in good laboratory procedures and are familiar with their potential hazards.
- The Products contain chemicals that may be harmful if misused. Due care should be exercised with all Products to prevent direct human contact.