Product Terms and Conditions of Sale

1. Contract Terms. These are the contract terms and conditions ("Terms") under which Promega Corporation ("Promega"), directly or through Promega's authorized distributor or affiliate, sells the products ("Products") to a person or entity ("Customer"). Additional written contract terms that apply to this sale ("Additional Terms") may be found in a quotation to Customer. In the event of a conflict between the Terms and any Additional Terms, the Additional Terms will control. These Terms, together with our quotation, and any Additional Terms therein, create the contract ("Contract") between Promega and Customer for the purchase and sale of the Product. No quotation given by Promega shall constitute an offer to supply the Products. An order placed by Customer, whether or not in response to a quotation, shall constitute an offer made to Promega subject to these Terms and any Additional Terms. No terms or conditions put forward or implied by Customer, in an order, invoice, correspondence or elsewhere, shall be binding on Promega and such conditions or stipulations are hereby excluded and extinguished. Promega's failure to object to any such terms shall not constitute a waiver by Promega and shall not constitute acceptance by Promega of such terms and conditions. The Contract cannot be amended or modified unless agreed to in writing by both parties. 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.
2. Orders. Customer 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. Customer shall be responsible to Promega for all confirmation orders to be clearly marked "CONFIRMATION" to avoid duplication of an order. All Customer'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.
3. Price. 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 or a valid quotation. 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, Customer shall reimburse Promega or, at the time of order, Customer 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 Customer is tax exempt, Customer shall provide to Promega a tax exemption certificate from time to time upon request by Promega.
4. Payment. 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 Customer.
5. Delivery and Return. Unless agreed to otherwise by Promega in writing, all sales are EXW (origination point) Incoterms 2010. Customer may be responsible for freight and insurance costs. Promega reserves the right to make delivery in installments. Products supplied will not be accepted for return unless returned in accordance with an authorization issued by Promega.
6. Product Use Limitations.
   1. The purchase of a Product only conveys to Customer the nontransferable, non-sublicensable right to use the Product purchased in compliance with the applicable intended use statement, limited use statement or Limited Use Label Licenses (LULLs) if any, in Promega's catalogs, on its website (see http://www.promega.com/lull), or on the label or associated documentation. No other rights or licenses to Promega's intellectual property are granted by the purchase and sale of a Product hereunder. Unless agreed to by Promega in writing, Customer receives no right to resell the Product purchased hereunder. Customer shall be solely responsible for any third-party intellectual property that may address Customer's intended use of the Product. Customer shall be solely responsible for any third-party intellectual property that may be required to manufacture or use a custom Product. Customer agrees to comply with all applicable laws, rules and regulations related to its use of the Products.
   2. In addition to the limitations in Section 6(a), with respect to any software Products or software incorporated in or forming a part of the Products, Customer's only rights in such software are a limited, non-exclusive, nontransferable license to use the software (i) solely for Customer's internal business purposes; and (ii) if the software is incorporated in or forming a part of the Products, in conjunction with the Products. Customer agrees not to (y) modify the base source code of the software or (z) examine the software with tools designed to disassemble, decompile or reverse engineer the same. Ownership of and title to such software and all associated patents, copyrights, trade secrets and other proprietary rights remain with Promega or its suppliers. Software Product purchases may be subject to an end-user license agreement or additional license terms.
7. Intellectual Property. Patent, trademark and copyright information related to the Products purchased can be found in the Patents and Disclaimers section of the online catalog page for each Product and at https://www.promega.com/legal/legal-and-trademarks/. Information may also be included on the Product label or associated documentation. Customer acknowledges that, as of the date of this Contract, Customer neither has nor is acquiring any license, concession, rights for use (except as granted herein) or any other right, title or interest in or to any trademarks, trade names, patents, developments, specifications, techniques or other proprietary or confidential information related to the Products. Promega exclusively owns all intellectual property rights in any inventions (patentable or otherwise), discoveries, improvements, data, know-how, and 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 compositions, processes, designs, methods, articles of manufacture or machines utilized in manufacture of a custom Product. You agree to transfer and assign, and hereby do assign, to us all your right, title and interest in and to any joint intellectual property. At our request and at our expense, you will help us secure and record our rights in such intellectual property.
8. Product Claims. 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.
9. Regulatory. Each Product is labeled for its intended use. Customer acknowledges that the Product is to be used in accordance with its intended use. Products labeled as Research Use Only have not been approved, cleared or licensed by the United States Food and Drug Administration or any other regulatory entity, whether foreign or domestic, for any specific intended use, whether research, commercial, diagnostic or otherwise. Products labeled "For Laboratory Use" are intended For Research Use Only outside the United States. Customer must ensure it has any regulatory approvals that are necessary for Customer's intended uses of the Product. Customer further agrees to comply with all applicable laws and regulations when using, maintaining and disposing of the Product.
10. Warranties and Warranty Disclaimers. 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. WARRANTIES IN THIS CONTRACT 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.
11. Limitations of Liability.
    1. Customer agrees that its sole and exclusive remedy against Promega shall be limited to the repair or 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 CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY.
    2. All claims arising under this Contract shall be valid and enforceable for one (1) year from the date any such claim accrues. IN NO EVENT SHALL PROMEGA BE LIABLE TO CUSTOMER 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 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 THIS CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY OR TORT WITH RESPECT TO THE PRODUCTS, OR ANY SERVICES IN CONNECTION WITH THE PRODUCTS, IS LIMITED TO AN AMOUNT NOT TO EXCEED THE AMOUNT PAID FOR THE PRODUCTS. THE RIGHT TO RECOVER DAMAGES WITHIN THE LIMITATIONS SPECIFIED IS CUSTOMER'S EXCLUSIVE, ALTERNATIVE REMEDY IN THE EVENT THAT ANY OTHER CONTRACTUAL REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
12. Export Compliance. Customer acknowledges that the Products are subject to United States export control laws and regulations. Customer agrees to comply with all applicable United States export control laws and regulations for all Products.
13. 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.
14. Product Availability and Allocation. Customer understands that Promega purchases or manufactures certain materials that are key to the manufacture of one or more of the Products. Should any Product become unavailable due to the inability of Promega to obtain or manufacture said materials, despite Promega’s commercially reasonable efforts to do so, Promega’s inability to perform hereunder due to such unavailability shall not constitute a breach hereof, and Customer shall hold Promega harmless for any loss or damages that Customer may incur as a direct or indirect result of such unavailability of materials, even if Promega has been made aware of the potential for such losses or damages. Promega reserves the right, in its sole discretion and without liability, to allocate supply of the Products and materials used to manufacture the Products.
15. Force Majeure. Promega is not responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control, whether foreseen or unforeseen, including but not limited to acts of God, strikes, labor disturbances, fires, pandemics, or any other cause beyond the reasonable control of Promega. In the event of any such delay the delivery shall be deferred for a period equal to the time lost by reason of the delay.
16. Assignment. Neither party shall assign this Contract, whether by operation of law or otherwise, without the prior written consent of the other party.
17. No Waiver. No failure or delay by either Party in exercising any of its rights or remedies hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy.
18. Miscellaneous. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Contract. The parties agree that any rule requiring construction of any provision of this Contract against its drafter shall not apply hereto.

Updated July 6, 2020