General Terms & Conditions of Sale
Harlan Laboratories, Inc., an Indiana corporation (“Harlan”) shall provide the products (“Products”) and services (“Services”) described in the Harlan invoice, quotation, protocol, or statement of work (“Harlan Document”), and customer shall purchase the Products and Services pursuant to the specifications contained in the Harlan Document and in accordance with the following terms and conditions:
I. Binding Character
All sales and/or purchases of Products and Services are (a) governed by these terms and conditions and (b) made expressly conditioned upon the customer’s acceptance of these terms and conditions. Submission of a purchase order to Harlan and/or the customer’s acceptance of delivery of Products or Services shall be deemed agreement to these terms and conditions. Any and all terms and conditions (including any which may be delivered by customer with any purchase order or other commercial document) which are different than, or inconsistent with, or supplement these terms and conditions are rejected unless otherwise expressly agreed to by Harlan in writing. Instructions in a purchase order relating to the date and method of delivery for Products or Services shall be controlling only if accepted by Harlan in writing. No modification of these terms and conditions shall be binding or enforceable unless expressly agreed to by Harlan in writing.
II. PROVISION of Products and Services
Harlan will provide the Products and perform the Services in accordance with the Harlan Document, which may be amended from time to time upon the mutual agreement of Harlan and the customer. Harlan will adhere to all government laws, rules and regulations (collectively referred to herein as “Laws”) applicable to the provision of the Products or the performance of the Services. If an amendment requires additional or different services on the part of Harlan, Harlan may agree to perform such services and will be paid an amount mutually agreed to by the parties. Deviations from the Harlan Document may be made in an emergency without the customer’s approval, provided that Harlan shall use commercially reasonable efforts to obtain the customer’s verbal approval, which shall be subsequently confirmed by the customer in writing. The parties acknowledge that during the course of performing the Services in accordance with the Harlan Document, additional costs may be incurred by Harlan as a result of procedural changes which do not amount to or require a change in the Harlan Document, but which are deemed necessary by Harlan to successfully perform the Services, and which could not be foreseen at the date of the Harlan Document. If such procedural changes occur, Harlan shall advise the customer prior to their implementation and solicit the customer’s agreement as to the necessity and additional cost thereof. Should Harlan be unable to contact the customer in advance, the customer agrees that, in order to maintain the integrity of the Services, Harlan may proceed accordingly and Harlan shall be entitled to recover such additional costs from the customer upon presentation of an explanation of such procedural changes and the necessity thereof.
III. RESTRICTIONS on Use and Breeding
Any Products purchased from Harlan shall be used by customer in a safe manner, and in accordance with all applicable Laws., In consideration of Harlan’s valuable proprietary rights in the genetic composition responsible for the unique genetic characteristics of all animals purchased from Harlan and descendants of those animals derived by inbreeding or crossbreeding, including unmodified derivatives of those animals or their descendants (“Animals”), the customer, including its employees, agrees that no Animals or other Products may be directly or indirectly: (a) used for any purpose other than the internal research of the customer whether or not for cash or other consideration including, without limitation using any of the Products or any components thereof in manufacturing or to provide a product or a service for clinical, therapeutic, diagnostic or prophylactic purposes or for any other commercial purposes, (b) bred, generated, cross bred, reproduced, licensed or provided (for sale or otherwise) to any third party for any use, or (c) provided to any agent or other third party to provide breeding or other services with respect to such Animals, unless Harlan provides the customer with prior written authorization for deviation from these terms and conditions or an appropriate license.
The purchase of any Products conveys to the customer the nontransferable right to use the Product and the components of the Products only in research conducted by the customer and specifically in accordance with the Harlan Document provided with the Products. If customer fails to comply with the foregoing limitations, in addition to any other remedies available to Harlan, the warranty provided for Products will be automatically voided.
IV. PAYMENT Terms
Unless otherwise set forth in a Harlan Document, prices will be as per Harlan’s published price lists on the day of delivery. If the customer is tax exempt, then it will be the customer’s responsibility to provide Harlan with written proof of the customer’s tax exempt status. The price list may be adjusted by Harlan without notice. Unless otherwise stated in the price list, the prices do not include, and the customer agrees to pay, all applicable, taxes, duties, excise charges and packaging and shipping charges.
The customer will pay Harlan as set forth in the Harlan Document. All invoices are due and payable in United States currency within thirty (30) days from the date of the invoice, and the customer agrees to pay all invoices submitted. All amounts not paid by the customer when due may, at the option of Harlan, accrue interest from the applicable due date until paid, at a rate that is the lower of (a) the highest rate permitted under applicable Laws and (b) 1.5% per month. In addition, Harlan may elect to cease or suspend the Services or withhold required reports or other deliverables in the event that the customer does not make payments when due and payable. All applicable termination, delay or cancellation fees will be set forth in the Harlan Document.
If, in the judgment of Harlan, customer’s financial condition is precarious or there has been a materially adverse change in customer’s financial condition, Harlan shall have the right to demand payment or other assurances that it deems adequate before providing any additional Products or Services.
In the course of providing the Products or performing the Services, Harlan and the customer may exchange proprietary or confidential information. The parties will identify, in writing, such information as confidential and/or proprietary. If a party intends to disclose confidential information to the other party orally, the disclosing party shall (a) alert the other party of the confidential nature of the disclosure prior to the disclosure and (b) provide written notice to the other party of the confidential nature and contents of such disclosure within ten (10) days after making the original disclosure. Each party will use its commercially reasonable efforts to maintain such information in confidence and will employ reasonable and appropriate procedures to prevent its unauthorized publication or disclosure unless required to disclose such information by applicable Laws. Neither party shall use the other party’s proprietary and/or confidential information for any purpose other than in performance of this Agreement. The confidentiality provisions of this Section shall not apply to any part of such information, which (a) is known to the receiving party at the time it was obtained from the disclosing party; (b) is acquired by the receiving party from a third party, and such third party is not known to the receiving party to be bound by an obligation of confidentially to the disclosing party or otherwise prohibited from transmitting such information to the receiving party; (c) is or becomes published or otherwise in the public domain other than by violation of this Agreement by the receiving party; (d) is independently developed by the receiving party without reference to or reliance upon the information provided by the disclosing party; or (e) is required to be disclosed by the receiving party to comply with applicable Laws; provided that the receiving party provides prompt written notice of such disclosure to the disclosing party and cooperates with the disclosing party’s reasonable and lawful actions to avoid and/or minimize the extent of such disclosure.
VI. LIMITED Warranty
Although Harlan maintains strict control over its environment, breeding and maintenance operations and engages in a comprehensive Health and Genetic Monitoring Quality Control Program, changes in health and genetic status can occur. Genetic and environmental pressures can affect the general health of animals. For this reason, Harlan recommends that its Animals be monitored and tested after delivery. If customer is unable to perform such monitoring and testing, Harlan will provide assistance to customer upon request. Any testing of the type discussed in this Section must commence no later than seven (7) calendar days after customer’s initial receipt of the Animals and be completed no later than twenty-one (21) calendar days after customer’s receipt of the Animals.. Should customer accept delivery of Products, customer will not be entitled to return the Products to Harlan for any reason.
Harlan warrants that the Products and Services shall conform in all material respects to the specifications contained in the Harlan Document and applicable Laws at the time of delivery or completion. Harlan does not warrant or represent that the results of the Services will be acceptable to any regulatory or governmental agency to which they are presented or that the results of the Services will enable the customer to further develop, market or otherwise exploit any product or service.
Other than described herein, HARLAN MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF ANY PATENT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE. CUSTOMER ASSUMES ALL RISK AND LIABILITY RESULTING FROM THE USE OF THE PRODUCTS AND SERVICES. ALL OBLIGATIONS OR LIABILITIES OF HARLAN FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTION, USE, OR PERFORMANCE OF ITS SERVICES OR PRODUCTS, EXCEPT AS PROVIDED HEREIN, ARE FULLY DISCLAIMED AND EXCLUDED.
Any claim for breach of this limited warranty must be made in writing to Harlan upon discovery of such loss or damage and no later than: (a) in the case of Products, twenty-one (21) calendar days after the date the Products are delivered, or (b) in the case of Services, the date that the Services are completed, after which time the Products or Services shall be deemed finally accepted. The customer must retain for Harlan’s inspection all Products alleged to be defective.
Risk of loss and title to the Products shall pass to customer once the Products leave Harlan’s facility or are delivered to a common carrier, as applicable.
VII. LIMITATION of Liability
Harlan will not be liable for penalties or liquidated damages or for special, indirect, consequential, punitive, exemplary or incidental damages of any type or kind (including, without limitation, lost profits or amounts expended in using, storing, or maintaining any such Products) regardless of whether any such losses or damages are characterized as arising from breach of contract, breach of warranty, tort, strict liability or otherwise, even if Harlan is advised of the possibility of such losses or damages, or if such losses or damages are foreseeable.
Harlan’s liability, regardless of the form of action, shall be limited to actual damages and shall not exceed the total price paid for the Products or Services with respect to which such liability arises. In no event shall Harlan be liable for any damages arising from or in connection with any decision by the customer or any third party to further research, develop or market any test articles or any derivative, product or service related thereto (or to the Products or Services), or the use of any test articles or any derivative, product or service related thereto (or to the Products or Services).
Subject to the limitations set forth in this Section, in the event that Harlan commits a breach of the limited warranty set forth in the Limited Warranty Section above, Harlan’s sole liability, and the customer’s sole remedy, shall be for Harlan to (a) replace the Products or issue a credit therefore or (b) conform the portion of the Services giving rise to the breach to the relevant specifications.
The customer agrees to defend, indemnify, save and hold harmless Harlan and its parent, subsidiaries and affiliates and their respective directors, managers, members, shareholders, officers, employees and agents (“Indemnified Parties”) from and against any claims, demands, suits, actions, causes of action, losses, costs, damages, fines and liabilities, including reasonable attorney, expert and other professional fees (“Claims”) arising out of or in connection with or attributable to (a) the research, development, manufacture, distribution, use, sales or other disposition by the customer, or any distributor, collaborator, customer, sublicensee, representative or agent of the customer, of any test articles and/or any other substances upon which the Services were performed or for which the Products were used, (b) any infringement of any third party’s patent rights or unauthorized use or misappropriation of its know-how, (c) the customer’s negligence or willful misconduct, (d) personal injury related to contact with the Products during visits to Harlan’s facilities or after delivery of the Products to the customer, or (e) the harmful or otherwise unsafe effect of any product resulting from research involving the Products and Services, and will pay any costs and damages which may be assessed against the Indemnified Parties.
IX. FORCE Majeure
Harlan shall not be responsible for any delays arising, directly or indirectly, from fires, floods, earthquakes, explosions, strikes, labor difficulties, acts of terrorism, riots, war, insurrection, embargo, government decrees or orders, civil or military authority, acts of animal activism, failure or curtailment of Harlan’s usual sources of supply, acts of God, or any other event, occurrence or condition which is beyond Harlan’s reasonable control.
X. Applicable Law
These terms and conditions will in all events and for all purposes be governed by, and construed in accordance with, the laws of the State of Indiana in the Unites States of America (specifically excluding the United Nations Convention on the International Sale of Goods), without regard to any choice of law principle that would dictate the application of the law of another jurisdiction.
Each provision of these terms and conditions is severable, and if any provision shall at any time be held to be contrary to law or invalid or unenforceable, the remaining terms, conditions and provisions shall not be affected thereby but shall remain in full force and effect. As used in this Section "provision" shall mean and include any word, clause, sentence, sub-paragraph, paragraph, section or portion of these terms and conditions.