TERMS AND CONDITIONS (where a Master Service Agreement is not in place)
The terms and conditions set forth below, together with the written information contained in the attached purchase order, all attachments and exhibits attached hereto, shall apply to the purchase of the services described in the purchase order (the “Services”) and are incorporated herein and are made a part of this agreement (the “Order”). This Order constitutes the entire agreement between NeuroScience Associates, Inc. (“NSA”) and “Buyer” with respect to the purchase of the Services.
1. ACCEPTANCE AND ACKNOWLEDGMENT. This Order becomes a binding contract when it is accepted either by acknowledgment or by performance. Any acceptance by Buyer is expressly conditioned on assent to the terms hereof. Reference by Buyer to other terms and conditions of sale in the confirmation or acknowledgment of this Order which modify, conflict with, or contradict any provisions of this Order shall be deemed waived unless such terms and conditions are expressly accepted in writing by NSA.
2. PAYMENT AND DISCOUNT TERMS. Payment due within 30 days of work completion. Discounts apply ONLY to invoices for which payment is received by the due date. A 2% credit is also accrued in your account, for future work, when payments are received within 15 days of work completion. When prepayment in full is made prior to the commencement of work, the 2% credit is applied to the current invoice. Interest charges accrue daily at 2% per month after 35 days.
3. PREPARATION OF SAMPLES. Buyer has full responsibility for the proper preparation of the tissue, including without limitation adherence to any guidelines or instructions provided by NSA. In the event that NSA determines, in its discretion, after analysis of delivered items and materials that such items and materials are not in proper condition to conduct the Services, NSA may reject and return such items and materials to Buyer (at Buyer’s cost) or discuss and notify Buyer of a surcharge for performing the Services. Buyer acknowledges that it may not be reasonably possible for NSA to determine initially whether the items and materials have been properly prepared. Therefore, in the event that NSA discovers, in the course of performing the Services, that the items or materials have not been properly prepared, NSA shall promptly notify Buyer and NSA may reasonably adjust costs for Services with respect to such items and materials or request new items or materials from Buyer; provided that, in any event, Buyer shall pay to NSA for the Services conducted up to the point of discovery of deficient items or materials. Selection of the staining procedure shall be the sole responsibility of Buyer.
4. LIMITED WARRANTY. NSA warrants that it shall conduct the Services in a good and workmanlike manner in accordance with industry standards. Buyer’s sole and exclusive remedy for any breach of the foregoing warranty shall be for NSA to repeat the performance of the Services at no additional charge to Buyer. NSA MAKES NO OTHER WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES AND DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. FOR THE AVOIDANCE OF DOUBT, NSA DOES NOT WARRANT AS TO THE RESULTS OF ANY SERVICES AND BUYER ASSUMES SOLE RESPONSIBILITY FOR RESULTS OBTAINED IN RELIANCE THEREON.
5. PACKAGING AND SHIPMENT. Buyer shall pack all items in suitable containers for protection in shipment and storage, and in accordance with the requirements of NSA. Risk of loss of any items prepared by NSA and sent to Buyer shall pass to Buyer upon receipt of such items by the carrier. NSA shall have no liability for, and Buyer shall bear risk of loss for, any events occurring during shipment of items to or from NSA.
6. RECORDS STORAGE. Records generated in the course of providing these services will remain in the possession of NSA; these records will be archived at NSA’s third party facility. NSA will provide appropriate notification of archival to meet all regulatory requirements.
7. TERMS OF PAYMENT. Unless otherwise explicitly set forth, all invoices shall be paid in full within thirty (30) days of the work completion date in U.S. Dollars. On any invoice (or portion thereof) which remains unpaid on the date when due to NSA, Buyer agrees to pay a service charge of two percent (2%) per month (or such lower rate as may be the maximum allowable by law) from any such due date until the date of payment. In the event of Buyer’s default in payment for the Services, Buyer shall be responsible for all reasonable costs and expenses incurred by NSA in collection of any sums owing by Buyer (including reasonable attorneys’ fees), and NSA may decline to make further shipments to Buyer without in any way affecting its rights under this Order. If, despite any such breach by Buyer, NSA elects to make shipments, such shipments shall not constitute a waiver of any breach by Buyer.
8. FORCE MAJEURE. NSA shall not be responsible for any failure to perform or delay in performing which is directly or indirectly due to any governmental or military regulation or requirement, act of God, war, riot, embargo, fire, flood, natural disaster, strike or other labor dispute, unavailability of materials or transportation facilities, or any other unforeseen circumstances or causes beyond NSA’s control.
9. LIMITATION OF LIABILITY. In no event will NSA be liable for (i) costs of procurement of substitute goods by Buyer, or for any loss of profits or loss of use, or for any incidental, consequential, special or indirect damages, whether or not NSA has been advised of the possibility of such loss or damage (ii) any amounts in excess of the amounts received by NSA under this Order.
10. SEVERABILITY. If any provision of this Order is held to be invalid or unenforceable, in whole or in part, the remaining provisions shall be enforceable to the maximum extent possible.
11. APPLICABLE LAW. This Order shall be governed and construed under the laws of the state of New York, without regard to any conflicts of laws provisions thereof and specifically excluding the United Nations Convention on Contracts for the International Sale of Goods.