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Thank you for your interest in acquiring Pfanstiehl products. We value your business and our goal is to make your purchasing experience as smooth as possible. If you have any questions about our quotation or ordering process, please call Customer Services at 1-800-383-0126.
1.1 General Terms. These terms and conditions of sale (“Terms”) comprise the agreement (“Agreement”) between you and Pfanstiehl, Inc. (“Pfanstiehl” and/or “we”). Unless your order is subject to a valid, written, jointly executed agreement between you and Pfanstiehl, in which case such agreement applies, you agree to be bound by the Agreement by ordering and purchasing products or receiving free samples from Pfanstiehl, or if you receive ordering, product or sales documents from Pfanstiehl. This Agreement is the complete and exclusive contract between us with respect to Pfanstiehl products and Pfanstiehl information received by you. This Agreement applies to any and all Pfanstiehl products received or to be received by you (whether as free samples or by purchase), and becomes effective upon your receipt of the Pfanstiehl’s product and/or Pfanstiehl information.
1.2 Terms Conflict. In the event of a conflict between the terms of this Agreement and any purchase order, offer, quotation, quality agreement or other document, the terms of this Agreement will control; provided, however, that in the event of a conflict between the terms of this Agreement and the quality assurance terms of the applicable quality agreement, the quality assurance terms of the quality agreement will control.
1.3 Purchase Order Acceptance Criteria. It is critical that Pfanstiehl adheres to best practices with respect to consistency of information required for acceptance of purchase orders. This information is necessary to accurately and expeditiously process orders, to meet product stewardship obligations, and to meet the delivery, regulatory, and quality expectations of our customers and end users. Purchase orders without the required information below will not be accepted:
2.1 Determining Price. Price quotes are valid for 30 days unless otherwise stated in writing. Additionally the price, as shown in our quotation to you, is subject to adjustment on account of quantities, shipment arrangements, special packaging requirements, or other terms or conditions which may or may not be part of our original price quotation.
2.2 Taxes and Fees. Our product prices do not include any taxes (including VAT), duties, levies or other government fees that may apply to your order. If they apply, it will be your responsibility to pay them. If we pay them, we will add them to your invoice. If you claim any exemption, you must provide a valid, signed certificate or letter of exemption for each respective jurisdiction.
2.3 Delivery Fees; Freight Policy. You are also responsible for standard delivery and handling charges, if any. We will also add these charges to your invoice. For details of our freight policy, please call Customer Service.
3.1 Payment Terms. We will invoice you for the product price and all other charges due when we ship you the products. Unless we have agreed otherwise in writing, you will pay us within 30 days from our invoice date. Each order is a separate transaction, and you may not off-set payments from one order against another. We reserve the right to require you to make full or partial payment in advance, or other security to our satisfaction, if we believe in good faith that your financial condition does not justify the payments terms otherwise specified. You will make all payments in U.S. Dollars.
3.2 Late Payment. If you are late in making payment, we may, without affecting our other rights:
(a) suspend delivery or cancel the Agreement;
(b) reject your future orders; and/or
(c) charge you a late-payment charge, from the due date until paid, at the rate of 1.5% per month, or, if less, the maximum amount allowed by law-which you must pay upon our demand.
3.3 Collection Costs. If we appoint a collection agency or an attorney to recover any unpaid amounts, you must pay all reasonable costs of collection, including all associated reasonable attorneys’ fees.
4.1 Delivery. We will ship products to the U.S. destination you specify in your order, FCA (Incoterms 2010) our shipping point. We may, in our discretion, (a) make partial shipments and invoice each shipment separately; and/or (b) stop delivery of products in transit and withhold shipments in whole or in part if you do not pay us when due, or if you otherwise do not perform your obligations in this Agreement. Our shipping dates are approximate only, and we will not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond our reasonable control. If we do delay shipment because of a cause beyond our reasonable control, we may terminate the affected order, or reschedule the shipment, and we will do so within a reasonable period of time. You may not refuse delivery or otherwise be relieved of any obligations as the result of such delay. If our delivery of a product to you is delayed due to any cause within your control, we will place the delayed products in storage at your risk and expense and for your account. We reserve the right to charge fees for storage of your product.
4.2 Cancellation. Once you have placed your order, you cannot cancel it, unless we consent in writing, and you pay any applicable cancellation charges.
4.3 Changes. You may not change orders in process, except with our written consent and agreement as to an appropriate adjustment in the purchase price for the applicable products. You will not receive credit for products returned without our prior written consent.
5.1 Risk of Loss. Aside from the trade terms indicated above, products are delivered when we load them onto the commercial carrier at our facility. At this point you become responsible for risk of loss and damage.
5.2 Title. Title to products will pass to you when we deliver the product to the carrier.
6.1 Limited Warranties. We warrant that each product will meet its specifications stated in the respective Certificate of Analysis for the product shipped. This warranty lasts from the time we ship the product until the product’s expiry date. If we do not specify the expiry date, the warranty will last for twelve (12) months from the date we ship the product.
6.2 Exclusions. Our warranties do not apply to (a) accident, disaster or event of force majeure, (b) your misuse, fault or negligence, (c) use of the products in a manner for which they were not intended; (d) latent defects or, (e) improper storage and handling of the products. If we determine that products for which you requested warranty services are not covered by the warranty, you will pay or reimburse us for all costs of investigating and responding to such request at our then prevailing time and materials rates. If we provide replacement products that are not covered by this warranty, you will pay us at our then prevailing price for the product.
6.3 Limitations. OUR WARRANTIES EXTEND ONLY TO YOU, THE ORIGINAL PURCHASER AND YOU CANNOT TRANSFER THEM. OUR OBLIGATION TO REPLACE A PRODUCT IS YOUR SOLE REMEDY. EXCEPT AS WE’VE OTHERWISE STATED, WE DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE PRODUCTS ARE ERROR-FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.
6.4 Remedies. During the applicable warranty period only, for products not meeting our warranty, we agree, in our sole discretion, to replace the non-conforming product as reasonably necessary to comply with our warranty obligations, but you must first (a) promptly notify us in writing when you discover any defect or non-conformance, and include in the notice the details of your warranty claim; and (b) after our review, assuming we authorize the product return, we will provide you with a Return Material Authorization (“RMA”). For valid product warranty claims timely made in accordance with this Agreement, you must return the non-conforming products to us, unless we agree otherwise, and we will prepay the shipping costs. We will ship your replacement products according to our Delivery terms in Section 4 of these Terms.
7.1 Our Indemnity.
(a) Our General Indemnity. We will defend and indemnify you against third-party claims for injury to persons, including death, or damage to tangible property caused by our employees’ gross negligence or willful misconduct, except to the extent caused by your negligent acts or negligent omissions.
(b) Conditions to Our Indemnity. As a condition to any of our indemnification obligations you must (a) notify us in writing, as soon as you become aware of any claim; (b) not admit any liability or take any other action in connection with the claim that could affect the defense; (c) allow us to solely control the defense or settlement of the claim; and (d) give us your reasonable information, co-operation and assistance.
7.2 Your Indemnity. You will indemnify, defend with competent and experienced counsel and hold us, including our parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders, employees, agents and representatives harmless from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys’ fees and disbursements and court costs) suffered by any of the foregoing entities or individuals to the extent arising from or in connection with (a) your or your affiliates, or your or your affiliates’ agents’, representatives’, licensees’, employees’, representatives’ or contractors’ gross negligence or willful misconduct; (b) your or your affiliates, or your or your affiliates’ agents’, representatives’, licensees’, employees’, representatives’, distributors’ or contractors’ research, development, marketing, sale, use, import, export, distribution or other commercialization of our product or any product or services containing or using our product; (b) our compliance with specifications you gave us; (c) use of a product in an application or environment for which it was not designed; and (e) product modifications we did not make or approve in writing.
8.1 Limitation of Rights. As between you and us, we exclusively own all intellectual property rights relating to our products. Nothing in the Agreement limits our ability to enforce our intellectual property rights.
8.2 Intellectual Property Ownership. We exclusively own all intellectual property rights in any inventions (patentable or otherwise), discoveries, improvements, data, know-how, trade secrets or other results that are conceived, developed, discovered, reduced to practice, or generated by or for us, or jointly by you and us, in relation to processes, methods, or related synthesis of a custom product, or otherwise in connection with designing or manufacturing a custom product. You agree to transfer and assign to us all your right, title, and interest in and to any joint intellectual property. And promptly at our request and at our expense, you will help us secure and record our rights in the intellectual property. You and your employees, consultants, service providers, customers or representatives shall not reverse engineer, attempt to reverse engineer or have reverse engineered, deconstruct or have deconstructed, test or have tested, or in any way determine or have determined the structure, composition or any chemical properties of any products or materials disclosed, provided or supplied by Pfanstiehl, or otherwise knowingly assist, facility or support such activities by third parties. You agree to not sample, test, or perform analysis of Pfanstiehl’s products other than as required for the use by you of Pfanstiehl products as excipients/up- and downstream components/ingredient in your biopharmaceutical development, production and formulation or customized cell media development and production. You agree to not analyze or test Pfanstiehl’s products beyond pharmacopeial monographs and analytical methods. You agree to not analyze or test Pfanstiehl’s products to gain characterization data suitable for reengineering purposes (e.g. impurity profiling etc.). You agree not to publish or share any analytical data of Pfanstiehl’s products with third parties or customers without approval of Pfanstiehl. You agree not to use Pfanstiehl’s Confidential Information to compete, or help third parties compete, with Pfanstiehl’s products or take any actions to hurt or limit the sales and/or market position of Pfanstiehl’s products.
9.1 “Confidential Information” means any and all information or trade secrets in whatever form (including written, oral, visual or electronic) that is or has been furnished or made available to you by or on behalf of Pfanstiehl. For the avoidance of doubt, “Confidential Information” shall include, without limitation, (i) business plans, business intentions, strategies, products, product information including performance and quality attributes, products in development, research and development pipelines, customers, customer information, market studies and information, pricing and other commercial terms, regulatory and quality matters, regulatory compliance matters, suppliers and service providers, raw materials, budgets, forecasts, sales and other financial results; (ii) all know-how, technologies, information, data, databases, data collection, processes, procedures, protocols, formulae, knowledge, methods, analytical testing methods, equipment, synthesis strategies, technical data, formulations, specifications, results from experimentation and tests, results of research, studies, reports, results, designs, product details, product design, design, material sources or uses, batch records, reference samples, trade secrets, ideas, inventions, discoveries, copyrights and trademarks, patents, patent applications, improvements, records, results and data, including all chemical, pharmacological, biochemical, biological, toxicology, pharmaceutical, physical and analytical data; (iii) any information which may come to your knowledge as a result of any visit to Pfanstiehl’s facilities; and (iv) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is, has been or will be prepared by or for you and that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in the foregoing clauses (i)-(iii).
9.2 Obligations. You agrees to (a) hold in confidence all Confidential Information, and not disclose Confidential Information except as expressly provided in Section 10.4 below, without the prior written consent of Pfanstiehl; (b) use Confidential Information solely for the extent necessary to use the Product and agrees not to use the Confidential Information to compete with Pfanstiehl’s products, and/or assist, facilitate, and/or support affiliates or third parties to compete with Pfanstiehl’s products; (c) treat Confidential Information with the same degree of care you use to protect your own confidential information but in no event with less than a reasonable degree of care.
9.3 Permitted Disclosures. You may provide Confidential Information solely to your employees or consultants on a need-to-know basis; provided, however, that (a) prior to disclosure of any Confidential Information, such employees and consultants are bound by written obligations of confidentiality, non-disclosure and non-use no less restrictive than the requirements of this Agreement; and (b) you remain liable for the compliance of such employees and consultants with such obligations. If you are required by a governmental authority or by order of a court of competent jurisdiction to disclose any Confidential Information, you will give Pfanstiehl prompt written notice thereof and you will take all reasonable and lawful actions to avoid or minimize the degree of such disclosure. You will cooperate reasonably with Pfanstiehl in any efforts to seek a protective order.
9.4 Exceptions. Your obligations of confidentiality, non-disclosure and non-use under this Agreement will not apply to any portion of Confidential Information that you can demonstrate, by competent proof:
(a) is generally known to the public at the time of disclosure or becomes generally known through no wrongful act, or other act or omission, on the part of you;
(b) is in your possession at the time of disclosure and was not acquired directly or indirectly from Pfanstiehl;
(c) becomes known to you on a non-confidential basis through disclosure by sources other than Pfanstiehl having the possession of, and the legal right to disclose, such Confidential Information; or
(d) is independently developed by you without use, reference to or reliance upon Confidential Information.
9.5 Proprietary Information. You agree that Pfanstiehl is and shall remain the exclusive owner of the Confidential Information and all patent, know-how, trade secret, copyright, trademark and other intellectual property rights therein. In addition, all improvements, innovations, modifications, discoveries, inventions, developments, enhancements, derivatives, knowledge and other intellectual property, whether or not patentable or protectable of the Confidential Information that is conceived of, reduced to practice, developed, generated or derived from the use, application or practice of the Confidential Information shall be owned exclusively by Pfanstiehl. No transfer of ownership, license or other conveyance of any such rights to you is granted or implied under this Agreement.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE WILL NOT BE LIABLE UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, MULTIPLE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO COSTS OF COVER, LOST PROFITS, LOST DATA, LOSS OF BUSINESS, LOSS OF GOODWILL OR LOSS OF REVENUE) THAT YOU MIGHT INCUR UNDER THE AGREEMENT, OR THAT MAY ARISE FROM OR IN CONNECTION WITH OUR PRODUCTS OR SERVICES, EVEN IF WE HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, OUR MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, OR ANY PRODUCT OR SERVICE, IS LIMITED TO THE LESSER OF (A) THE AMOUNT YOU PAID TO US FOR THE PRODUCT, OR (B) $1,000,000 USD.
11.1 Regulatory Restrictions/Management of Change. You are solely responsible for making sure that the way you use our products complies with applicable laws, regulations and governmental policies. You must obtain all necessary approvals and permissions you may need. It is solely your responsibility to make sure the products are suitable for your particular use. You agree to abide by Pfanstiehl’s management of change policy. Pfanstiehl shall notify all customers of significant changes prior to implementation when practical. Determination of significance shall be determined based on Pfanstiehl’s internal procedures and the current version of IPEC’s “Significant Change Guide”.
11.2 Uncontrollable Circumstances. We will not be responsible or liable for failing to perform our obligations under the Agreement to the extent caused by circumstances beyond our reasonable control. In certain situations, we may use our reasonable judgment and apportion products then available for delivery fairly among our customers.
11.3 No Resale or Repackaging or Distribution of Pfanstiehl’s Products. You agree to not resell Pfanstiehl’s products, including but not limited to Pfanstiehl’s materials. You agree to not repackage Pfanstiehl’s products into other containers or packages and/or relabel Pfanstiehl products or packages.
11.4 Governing law. These Terms will be governed by and construed in accordance with the laws of the State of Delaware and will in all respects be interpreted, enforced and governed under the internal and domestic laws of such state, without giving effect to the principles of conflicts of laws of such state. The Parties expressly agree that the sole and exclusive venue for any action arising under these Terms shall be the Chancery Court of the State of Delaware (or, if the Chancery Court of the State of Delaware declines to accept jurisdiction over a particular matter, the United States District Court for the District of Delaware or any other state court within the State of Delaware) (collectively, the “Courts”). Each Party irrevocably submits to the sole and exclusive jurisdiction in the Courts for purposes of any action, suit or other proceeding relating to or arising out of these Terms, and waives and agrees to waive any challenge to litigating any such action in such Courts on the basis that the venue is improper.