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.
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.
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.
Buyer may test any product provided by Phenomenex for conformation to product specifications. Product specifications will be provided by Phenomenex with each HPLC or GC column or upon written request for other products. Buyer has thirty (30) days to conduct acceptance testing and notify Phenomenex of any non-conformities. Failure of the Buyer to conduct acceptance testing and notify Phenomenex will be deemed acceptance of the product by the Buyer. In the event of a non-conformity, Phenomenex will repair, replace and / or credit the non-conforming item, at Phenomenex’s discretion. In the event of a repair or replacement, Buyer agrees to follow all of Phenomenex procedures and to bare the costs of returning the product to Phenomenex.
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".
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 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. All shipments are according to Incoterm DAP. 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. A 1.5% per month service charge is added to delinquent accounts. In the event that it becomes necessary for Phenomenex to incur collection costs or institute a suit to collect any amount due and payable, the customer (Buyer) agrees to pay such additional collection costs, charges, and expenses, including attorney's fees if the account is placed in the hands of an attorney or an agency for collection. 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 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.
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.
No returns will be accepted without prior authorization, and are subject to approval by Phenomenex. If, for any reason, it is necessary to return goods to us, please contact your Technical Representative for forwarding instructions. This procedure will prevent delays and enable us to resolve the situation to your satisfaction. Phenomenex is not liable for goods returned without authorization. Returns must be sent through a traceable carrier.
RISK OF LOSS
Unless otherwise specified in this Order Acknowledgement, risk of loss will pass to Buyer only after shipment of the goods by Phenomenex. 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.
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).
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. Phenomenex products are warranted to meet the stated performance and quality and to be free of defects in material and workmanship. They are not warranted, nor does Phenomenex assume liability, if misused. NO OTHER WARRANTY OR REPRESENATI0N IS IMPLIED OR EXPRESSED BY PHENOMENEX FOR ITS PRODUCTS WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER MATTER. PHENOMENEX SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR COMPENSATORY DAMAGES ARISING FROM USE OF, OR IN CONJUNCTION WITH, ITS PRODUCTS. The maximum liability that can be assumed by Phenomenex for breach of warranty shall be the invoice price of the product.
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 information published by Phenomenex is, to the best of its knowledge, correct and accurate but is not guaranteed to be so. Phenomenex assumes no responsibility with respect thereto and has not verified the values or specifications stated experimentally and does not guarantee their accuracy. The sale of any product by Phenomenex does not waive any patent restrictions connected with those products.
Phenomenex will repack, replace, or refund charges on any column (at our discretion), at no cost if a column fails to perform satisfactorily. Columns being returned must have prior return authorization granted by Phenomenex. Defective products must be accompanied by a written explanation of failure. Approval is subject to the following exclusions:
All columns must be tested upon receipt and all deficiencies must be reported to Phenomenex no later than 15 days after the date of receipt of the column.
Maximum warranty period is limited to 90 days on HPLC columns unless previously agreed upon. However, COLUMNS MAY NOT BE RETURNED FOR REFUND OR CREDIT AFTER 45 DAYS OR WITHOUT PRIOR AUTHORIZATION.
Removal of column end-fittings automatically voids column warranty.
Column performance warranty is limited to the conditions of the original test chromatogram.
Physical damage to the column due to misuse, abuse, or mishap, including mechanical shock.
Chemical damage to the packing material due to operation at incorrect chemical conditions, temperatures, or pressures.
Failure due to high backpressures caused by improper solvent or sample filtration practices causing particulate build-up or precipitation or sample fouling in the column or end-fitting.
Incorrect selection of packing material made by customer for their particular use or incompatibility of equipment, etc.
For products supplied by, but not manufactured by Phenomenex, the warranty is limited by the terms of the original manufacturer's warranty.
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.
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.
WORK ON PHENOMENEX PREMISES
Buyer shall indemnify and protect Phenomenex against all liability or loss for injury or damages to persons or property, including counsel fees and expenses, arising out of damages or injuries that result to Buyer, Buyer’s employees, agents or in any way under the control of Buyer, on Phenomenex premises, either leased or owned. Whenever Buyer enters upon Phenomenex premises, Buyer shall furnish a certificate of insurance reflecting insurance coverage in forms and amounts required by Phenomenex. For purposes of this paragraph, the term Buyer shall be deemed to include a contractor.
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.
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.
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.
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.
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.
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.
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.
During the course of this agreement, Phenomenex may disclose to Buyer or Buyer may become aware of information that Phenomenex deems proprietary and confidential. Buyer will maintain in confidence all Phenomenex information disclosed by Phenomenex to it or otherwise acquired by Buyer, its employees, agents or contractors, whether disclosed by Phenomenex or otherwise acquired by Buyer prior to, on or after the effective date of this Agreement. During the term of this Agreement and for a period of five (5) years after its termination or expiration, Buyer will not, unless expressly authorized in writing by Phenomenex and signed by an authorized representative of Phenomenex: (i) disclose Confidential Information in any matter whatsoever, in whole or in part, to any third party, or (ii) use Confidential Information for any purpose other than the purposes of this Agreement. Buyer will return to Phenomenex or destroy all copies of Confidential Information and any documents created by Buyer that incorporate Confidential Information to Phenomenex upon Phenomenex’s request except that a single copy may be retained in Buyer’s confidential files to monitor compliance with this Agreement.
Buyer will not use Phenomenex’s name in any publicity or advertising without Phenomenex’s prior written approval.
The Buyer’s obligation of non-disclosure and non-use will not apply to any information or data disclosed to it by Phenomenex which: (i) is or becomes known to the public without fault of the Buyer; (ii) was known to Buyer or to the public prior to the disclosure of the information by Phenomenex to Buyer; (iii) is rightfully obtained by Buyer from a third party that has no obligation to Phenomenex prior to the disclosure of the information by Phenomenex to Buyer; or (iv) was developed by Buyer without the benefit of any Confidential Information. Neither Phenomenex nor Buyer will publicly disclose any information about this Agreement, including its existence, without the prior written consent of the other. Both Phenomenex and Buyer acknowledge that this agreement is confidential.
Should Buyer use a subcontractor or consultant for any portion of its performance under this Agreement, Buyer will require such subcontractor or consultant to execute a confidentiality and nondisclosure undertaking in substantially the same form as set forth in this section. Buyer agrees that under no circumstances will Buyer utilize any plans, drawings, sketches, specifications or any other writings given to them by Phenomenex for any purpose other than expressly agreed upon and stated in the Order Acknowledgement. In addition, all transactions between Phenomenex and Buyer will be treated as confidential. Buyer, without express written permission from Phenomenex will, not make any news release, public announcement, denial or confirmation of any dealings Buyer has with Phenomenex.
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 Notifications, if any, will be mailed to the “Ship To” address on the Order Acknowledgement.
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.
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.
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.
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.
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.
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.
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.
Buyer shall not delegate any duties of performance or assign, in whole or in part, rights or obligations under this agreement without the express written assent of Phenomenex. Any attempted delegation without such express written assent will be without force or effect. Subject to the restrictions of the preceding sentence, this Agreement will be binding on the successors and assigns of the Buyer.
IF THIS ORDER IS FOR A CONSIGNMENT ORDER OR THE REPLINISHMENT OF A CONSIGNMENT STOCK, THE FOLLOWING ADDITIONAL TERMS AND CONDITIONS ALSO APPLY:
The following paragraphs set forth the general terms and conditions under which Phenomenex shall, at Buyer’s request, provide goods on a consignment basis to Buyer. For the purposes of this Agreement, the terms “Phenomenex” and “Buyer” shall include the employees, agents, assigns, officers, directors and subcontractors of each respective party. However, to the extent Buyer’s purchase orders are inconsistent with this Agreement, this Agreement shall control the rights and remedies of the parties hereto.
Either party hereto may, without cause, terminate this Agreement on sixty (60) days written notification to the other. The obligations of the parties under the CONDFIDENTIALITY section shall survive any termination.
Supplier shall provide products to Buyer during the term of this agreement. The products and services covered by this agreement are listed in Exhibit “A” attached hereto or previously agreed to in a separate document which is hereby incorporated by reference. During the term of this agreement, the quantities and/or materials listed in Exhibit “A” can only be modified by Phenomenex with written notification to Buyer and Buyer not objecting within ten (10) days from the mailing of such notice.
Phenomenex will ship all of the products as listed in Exhibit “A” at no charge to Buyer. Buyer shall keep these products separate and will not otherwise commingle those products with Buyer’s inventory. Buyer will have custody of the products at will and Phenomenex shall retain title to all products shipped to Buyer. Buyer may, at their discretion, use or consume the products provided by Phenomenex. Upon use or consumption of a product, Buyer will become obligated to pay Phenomenex for that product according to the terms of this Agreement. Any product used by Buyer, even if in usable condition, may not be returned to Phenomenex.
Within five (5) business days after the end of each month, Buyer will report to Phenomenex the quantities and, if applicable, the serial number of the products used during the previous month. Phenomenex will then invoice Buyer for those products.
Within ten (10) business days of the invoice date, Phenomenex will, at no cost to Buyer, replace the products used or consumed by Buyer to return the number of products to the levels agreed to in Exhibit “A”. Buyer will have custody of the products at will and Phenomenex shall retain title to all products shipped to Buyer.
Upon termination of this agreement, Buyer, at no cost to Phenomenex, agrees to return all unused products shipped under this Agreement to Buyer. Buyer will not receive a credit or other compensation for those products. In addition, Buyer, at its sole expense, shall obtain appropriate freight insurance for the return of the products. Should the quantity and types of products returned to Phenomenex be less than the quantity and types listed in Exhibit “A”, Buyer agrees to pay for those unaccounted for or missing products as though they had been consumed or used by Buyer under this Agreement.
LOSS OF PRODUCTS
Buyer warrants that the products provided by Phenomenex will be kept in a secure area under conditions appropriate for the products. In the event the products provided by Phenomenex while in the custody of Buyer become damaged, destroyed, lost, or are otherwise unusable or unaccounted for, Buyer agrees to pay for the product as though it was used in accordance with the WARRANTY Section above.
The price charged Buyer will be as shown in Exhibit “B” attached hereto or as agreed to in a prior written document and is incorporated by reference. In addition to the prices stated herein, Buyer will pay to Phenomenex any sales tax now or hereafter imposed by a state or municipality, based on or measured by the sale or use of material, product or services covered hereby. Supplier may in its sole discretion, adjust pricing in accordance with its published list prices.
With the exception of the first shipment, Phenomenex shall invoice Buyer for every shipment. The invoice will include, and Buyer agrees to pay, reasonable shipping and handling charges. Buyer further agrees to pay all invoices within thirty (30) days of receipt of said invoice. Interest will be charged at the legal rate for all amounts outstanding more than thirty (30) days. In addition, Buyer will be responsible for collection agency or legal fees incurred in collecting payment of an invoice. Phenomenex reserves the right to refuse to perform under this agreement should there be any balance outstanding for more than thirty (30) days. Phenomenex will not be in breach of this agreement by exercising this right. Buyer shall reimburse Phenomenex for taxes, fees, surcharges or other charges imposed by legislation of regulations enacted or promulgated after the execution date of this Agreement and levied specifically upon the transportation or packaging of the products subject to this agreement.
SHIPMENT AND DELIVERY
Phenomenex will make all reasonable efforts to meet Buyer’s requirement dates and to ship the products via Buyer’s choice of carriers. All products shall be properly labeled and packaged in accordance with applicable DOT regulations. Partial shipments will be accepted by the Buyer and will not be a breach of this agreement by the Phenomenex.
Buyer agrees to indemnify, hold harmless and defend Phenomenex from and against any and all liabilities, claims, penalties, forfeitures, suits and the costs and expenses incident thereto, including costs of defense, settlement, and reasonable attorney’s fees, which it may hereafter incur, become responsible for or pay out as a result of injury to any persons, destruction or damage to any property, contamination or adverse effects on the environment, or any violation of governmental laws, regulations, or orders to the extent that such damage was caused by: (i) the breach by the Buyer of any term of this agreement, or (ii) any negligent or willful act or omission by the Buyer, the Buyer’s employees, officers, directors, agents, or assigns.
Any notice to be given under this agreement required to be in writing shall be addressed and deposited with the United States Postal Service, postage prepaid and by facsimile transmission as follows:
Attn: Doug McCrory, V.P. Sales
411 Madrid Avenue
Torrance, CA 90501
To the address listed on the Order Acknowledgement.
Should either party’s address change, written notification must be sent certified mail return receipt ten (10) days in advance of when the change of address is to be in effect for purposes of this Agreement.