TERMS AND CONDITIONS OF SALE FOR SECOND WIND LABS, INC
BY PLACING AN ORDER THROUGH THE SELLER’S WEBSITE OR IN RESPONSE TO ANY COMMUNICATION REFERENCING THESE TERMS SUCH AS A QUOTE; PURCHASING, RECEIVING, ACCEPTING, OR USING GOODS TO WHICH THESE TERMS APPLY; OR ANY OTHER METHOD OR USE PERMITTED UNDER APPLICABLE LAW, BUYER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THESE TERMS, AND AGREES TO BE BOUND BY THEM AND ANY OTHER TERMS OR POLICIES REFERENCED HEREIN, WITH THE SAME EFFECT AS IF BUYER HAD SIGNED SUCH TERMS IN WRITING. THE PARTIES ACKNOWLEDGE THAT THE PRICES IN ANY QUOTE PROVIDED BY SELLER OR REFERENCED IN ANY COMMUNICATION ARE CONTINGENT UPON ACCEPTANCE OF THESE TERMS.
1. Applicability.
These terms and conditions of sale (the "Terms"), together with any Purchase Orders or Sales Documents accompanying or referencing these Terms, and Supplemental Terms (as defined below), comprise the entire agreement (the “Agreement”) between Second Wind Labs, Inc. ("Seller") and the buyer (“Buyer”) with respect to the purchase and sale of products or goods (“Products”) indicated on Sales Documents. “Sales Documents” refers to any material or document, print or digital, provided by Seller during the process of purchase or sale, including but not limited to quotations, invoices, and any documents acknowledging, confirming, or accepting any order or sale (“Order Confirmation”), and shipping documents. “Supplemental Terms” means Sales Documents or any additional product-, service-, or program-specific terms posted on Seller’s website or provided to Buyer in writing, including without limitation equipment-specific terms, software license terms, hazardous materials handling terms, and carrier-specific terms. In the event of a conflict among the constituent documents of this Agreement, the order of precedence shall be: (i) Sales Documents; (ii) any separately signed written agreement between the parties covering the applicable Products; (iii) Supplemental Terms; and (iv) these Terms. The Agreement comprises the entire agreement between the Parties, and supersedes all prior agreements, representations and warranties, and communications, both written and oral, including any preprinted terms on Buyer’s purchase orders, requests, payments or other documents. Seller’s acceptance of any order is expressly conditioned on buyer’s assent to these terms. Any additional, different, or conflicting terms contained in buyer’s purchase order, acknowledgment, or other documentation are hereby objected to and rejected by seller and shall not become part of this agreement, notwithstanding seller’s acceptance or performance of any order. If the parties signed a separate contract applicable to the sale of certain Products, the terms of such contract shall prevail only in regards to such certain Products and to the extent they are inconsistent with these Terms.
2. Price.
Buyer will purchase the Products at the price(s) set by the Seller on the Seller website or on Sales Documents (the "Price"). All prices quoted by Seller are valid for thirty (30) days, unless otherwise stated in writing. All prices for the Products will be as specified by Seller or, if no price has been specified or quoted, will be Seller's price in effect at the time of shipment. All prices are subject to adjustment on account of export duties, specifications, quantities, shipment arrangements or other terms or conditions that are not included in the Seller's original price quotation. LIST PRICES MAY VARY FROM THE PRICE DISPLAYED ON THE WEBSITE FOR CERTAIN PRODUCTS.
3. Taxes.
Prices for the Products exclude all sales, value added, and other taxes and duties imposed by any governmental or regulatory authority with respect to the sale, delivery, or use of any Products covered hereby. Any such taxes and duties must be paid by Buyer. If Buyer claims exemptions from any such taxes and duties, Buyer must provide to Seller a valid, signed certificate or letter of exemption for each respective jurisdiction and request a custom quotation for such exemptions to be applied.
4. Payment Terms.
For Products purchased through online checkout on the Seller website, payment must be made in order for Products to be shipped. For Products purchased through a Purchase Order or other separate arrangement, upon shipment of Products, Seller will invoice Buyer for the price of the Products and any other payable charges in accordance with these Terms or applicable Sales Documents. If no payment terms are specified on Sales Documents, Buyer will pay all invoiced amounts due within 30 days of the invoice date. Buyer will make all payments to Seller in US dollars. Without limiting other remedies, all past due payments will accrue interest at the lower of a) 0.5% per month or b) the highest rate allowed by law, on the unpaid balance. Buyer will pay all collection costs, attorneys' fees, court costs, and all other costs incurred in the collection of past due amounts. Buyer shall pay all amounts due under this Agreement without setoff, counterclaim, deduction, or withholding of any kind, except as may be required by law. Seller reserves the right, at its sole discretion, to require prepayment, cash in advance, letter of credit, or other security as a condition of any order, and to suspend, modify, or revoke any open credit extended to Buyer at any time without prior notice. Seller may apply any payment received from Buyer against any outstanding amount owed by Buyer to Seller, regardless of any contrary designation by Buyer.
5. Delivery
Unless otherwise agreed in writing, Products are shipped using Seller's standard packaging and shipping methods, for which fees may apply. Unless otherwise agreed upon in writing by the parties or set forth in any Sales Documents, the delivery of Products falling under the “Free Shipping” arrangement shall be made Carriage-Paid-To Purchaser’s Ship-To Address (CPT Incoterms® 2020), and freight costs shall be prepaid by Seller. Unless otherwise agreed upon in writing by the parties or set forth in any Sales Documents, the delivery of Products falling under the “LTL Freight Shipping Required” arrangement shall be made Free Carrier to Buyers Ship-To Address (FCA, Incoterms® 2020), and freight costs shall be prepaid by Seller and added to its invoice to Buyer. By accepting Seller’s provided Freight shipping quote under “LTL Freight Shipping Required” arrangements, Buyer agrees to select the listed Carrier on the shipping quote as the named Carrier for the shipment under FCA.
6. Title and Risk of Loss
Title to Products shall pass to Buyer upon delivery of possession of the Products from the Seller to the designated carrier based on applicable INCOTERMS in section 5. Notwithstanding the foregoing, Seller retains a purchase money security interest in each Product sold hereunder, and in all proceeds thereof, until Buyer has paid in full all amounts owed to Seller for such Product. Buyer authorizes Seller to file such UCC-1 financing statements and other documents, and to take such other actions, as Seller deems necessary or appropriate to perfect and continue such security interest, and Buyer shall, upon Seller’s request, execute any additional documents reasonably required for such perfection. Risk of loss of or damage to the Products shall pass to Buyer in accordance with the applicable Incoterm set forth in Section 5. Seller reserves the right to stop delivery of Products in transit and to withhold shipments in whole or in part if Buyer fails to make any payment to Seller when due or otherwise fails to perform its obligations hereunder. In the event of a delay due to any cause beyond Seller's reasonable control, Seller reserves the right to terminate the order or any part of the order so affected, or to reschedule shipment within a reasonable period of time, and Buyer will not be entitled to refuse delivery or otherwise be relieved of any obligations as the result of such delay.
7. Cancellations.
Orders in progress or being processed may be canceled by Buyer only with Seller's written consent and upon payment of Seller's cancellation charges. Orders in process may not be changed by Buyer except with Seller's written consent and upon agreement by the parties as to an appropriate adjustment in the purchase price therefore.
8. Returns.
ALL SALES FINAL. DUE TO THE NATURE OF THE PRODUCTS, THE SELLER DOES NOT OFFER RETURNS OR REFUNDS. HOWEVER, IF PRODUCTS FAIL TO ARRIVE OR BUYER RECEIVES AN INCORRECT ITEM, THE BUYER MAY CONTACT SELLER IN WRITING WITHIN TEN (10) DAYS OF THE DATE OF DELIVERY (AS EVIDENCED BY CARRIER TRACKING RECORDS) FOR REPLACEMENT OR REFUND CHOSEN AT THE SELLER’S DISCRETION. BUYER IS ENCOURAGED TO REVIEW ORDER AND SHIPPING DETAILS BEFORE PURCHASING. PROVISION OF AN INCORRECT SHIP-TO ADDRESS BY THE BUYER TO THE SELLER IS NOT AN ACCEPTABLE CAUSE FOR REFUND OR RETURN.
9. Disclaimer of Warranties.
EXCEPT WHERE OTHERWISE NOTED, ALL PRODUCTS ARE PROVIDED “AS IS” WITH ALL FAULTS AND DEFECTS. SELLER MAKES NO OTHER WARRANTIES OF ANY KIND WHATSOEVER WITH RESPECT TO THE PRODUCTS, WHETHER EXPRESS OR IMPLIED BY LAW, OR IMPLIED BY COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, SELLER HEREBY DISCLAIMS ALL WARRANTIES NOT EXPRESSLY SET FORTH IN THIS AGREEMENT. FOR THE AVOIDANCE OF DOUBT, SELLER HEREBY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, DESIGN, ACCURACY, NON-INFRINGEMENT, ENJOYMENT, INTERFERENCE, OPERATION, AND OR FITNESS FOR A PARTICULAR PURPOSE. SELLER DOES NOT WARRANT THAT THE PRODUCTS WILL SATISFY BUYER’S REQUIREMENTS OR THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE. BUYER ACKNOWLEDGES THAT NO EMPLOYEE OR CONTRACTOR OF SELLER OR ANY AFFILIATE OR OTHER THIRD PARTY IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY ON BEHALF OF SELLER. WITHOUT LIMITING THE FOREGOING, NEITHER SELLER NOR ANY PERSON OR ENTITY ASSOCIATED WITH SELLER REPRESENTS OR WARRANTS THAT: (A) ANY CONTENT, DATA, OR INFORMATION ABOUT OR FROM THE PRODUCTS WILL BE UP-TO-DATE, COMPREHENSIVE OR ACCURATE; OR (B) THAT DEFECTS WILL BE CORRECTED. THE ENTIRE RISK ARISING OUT OF THE USE, PERFORMANCE, OR INABILITY TO USE PRODUCTS REMAINS WITH BUYER. THE DISCLAIMERS DO NOT AFFECT WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
SELLER IS NOT A MANUFACTURER-AUTHORIZED DISTRIBUTOR OF ANY PRODUCTS, AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY RELATIONSHIP WITH ANY PRODUCT MANUFACTURER. ANY MANUFACTURER WARRANTY APPLICABLE TO THE PRODUCTS MAY HAVE BEEN VOIDED BY RESALE OR BY PRIOR USE, HANDLING, OR STORAGE. BUYER ACKNOWLEDGES THAT IT HAS NO WARRANTY CLAIM AGAINST ANY MANUFACTURER THROUGH SELLER, AND SELLER HAS NO OBLIGATION TO PURSUE, ASSIGN, OR SUPPORT ANY WARRANTY CLAIM ON BUYER’S BEHALF.
PRODUCTS ARE RESOLD SURPLUS ITEMS. BUYER ACKNOWLEDGES AND AGREES THAT SELLER MAKES NO REPRESENTATION OR WARRANTY, AND SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, WITH RESPECT TO: (A) CHAIN OF CUSTODY, PROVENANCE, OR PRIOR HANDLING OF ANY PRODUCT; (B) CONDITIONS UNDER WHICH ANY PRODUCT HAS BEEN STORED OR TRANSPORTED, INCLUDING WITHOUT LIMITATION COLD-CHAIN, TEMPERATURE, HUMIDITY, LIGHT, OR VIBRATION CONDITIONS; (C) MANUFACTURER DATE CODES, LOT NUMBERS, EXPIRATION DATES, REMAINING SHELF LIFE, OR STABILITY; (D) LOT-TO-LOT CONSISTENCY, QUALITY CONTROL STATUS, OR WHETHER ANY LOT HAS BEEN WITHDRAWN, RECALLED, OR RE-QC’D BY THE MANUFACTURER; (E) THE INTEGRITY, AUTHENTICITY, OR ORIGINAL CONDITION OF PACKAGING, LABELING, OR TAMPER-EVIDENT SEALS; AND (F) COMPLETENESS OF KITS, INSTRUMENTS, OR ACCESSORIES, INCLUDING WITHOUT LIMITATION THE PRESENCE OR ABSENCE OF CABLES, MANUALS, CALIBRATION CERTIFICATES, OR ANCILLARY COMPONENTS. BUYER IS SOLELY RESPONSIBLE FOR INSPECTING, TESTING, QUALIFYING, AND VALIDATING ALL PRODUCTS PRIOR TO USE.
WITH RESPECT TO ANY INSTRUMENT, EQUIPMENT, OR HARDWARE PRODUCT, SELLER ADDITIONALLY DISCLAIMS ANY WARRANTY OR REPRESENTATION REGARDING: (I) CALIBRATION STATUS OR TRACEABILITY OF CALIBRATION; (II) PRIOR SERVICE, REPAIR, OR PREVENTIVE MAINTENANCE HISTORY; (III) THE PRESENCE, STATUS, OR TRANSFERABILITY OF ANY EMBEDDED SOFTWARE OR FIRMWARE LICENSE; (IV) ELIGIBILITY FOR MANUFACTURER SERVICE, SUPPORT, OR WARRANTY COVERAGE; (V) THE INTEGRITY OR ORIGINALITY OF SERIAL NUMBERS, ASSET TAGS, OR MANUFACTURER IDENTIFIERS; (VI) FITNESS FOR ANY SPECIFIC LABORATORY APPLICATION OR WORKFLOW; (VII) THE CLEANLINESS OR NON-HAZARDOUS STATUS OF PRODUCTS. BUYER IS SOLELY RESPONSIBLE FOR CALIBRATION, QUALIFICATION (IQ/OQ/PQ), DECONTAMINATION, AND VALIDATION PRIOR TO USE.
ALL PURCHASED PRODUCTS ARE FOR RESEARCH USE ONLY (RUO). SELLER MAKES NO REPRESENTATIONS OR WARRANTIES THAT IT'S PRODUCTS ADHERE TO ANY REGULATORY, SAFETY, OR QUALITY STANDARDS INCLUDING BUT NOT LIMITED TO; GOOD MANUFACTURING PRACTICE, GOOD LABORATORY PRACTICE, GOOD CLINICAL PRACTICE, GOOD DISTRIBUTION PRACTICE, ISO STANDARDS, OR ANY SIMILAR QUALITY CERTIFICATION. PRODUCTS ARE NOT INTENDED, SOLD, OR APPROVED FOR USE IN CLINICAL, DIAGNOSTIC, THERAPEUTIC, FOOD, COSMETIC, OR OTHER APPLICATIONS REGULATED BY THE U.S. FOOD AND DRUG ADMINISTRATION OR ANY COMPARABLE FOREIGN REGULATORY AUTHORITY, NOR FOR USE IN THE MANUFACTURE OF ANY PRODUCT INTENDED FOR SUCH USE. BUYER SHALL NOT USE OR INCORPORATE SELLER’S PRODUCTS INTO ANY GMP, GLP, GCP, OR COMPARABLE REGULATED WORKFLOW. BUYER HERE BY AGREES NOT TO USE SELLER’S PRODUCTS IN THE PRODUCTION OF ANY REGULATED MATERIAL OR MAKE REPRESENTATIONS TO ANY GOVERNMENTAL OR REGULATORY BODY THAT PRODUCTS ARE FIT FOR SUCH PURPOSE.
THE REMEDIES IN SECTION 8 ARE BUYER'S SOLE AND EXCLUSIVE REMEDIES AND SELLER'S ENTIRE LIABILITY FOR ANY FAULTS OR DEFECTS ARISING FROM THE PURCHASING OF PRODUCTS BY THE BUYER.
10. Limitation of Liability.
Indirect Damages:
TO THE MAXIMUM EXTENT PERMITTED BY LAW, WITH RESPECT TO THIS AGREEMENT AND ANY DAMAGES OR LIABILITY ARISING HEREUNDER OR IN CONNECTION HEREWITH, IN NO EVENT WILL SELLER BE LIABLE TO BUYER (OR ANY AFFILIATE OF BUYER OR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, DIRECTORS, SHAREHOLDERS, AFFILIATES, CUSTOMERS, OR OTHER REPRESENTATIVES) FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, ENHANCED, OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING DAMAGES FOR LOST TIME, LOSS OF DATA, LOSS OF GOODWILL, LOSS OF REVENUE OR PROFIT, OR FOR BUSINESS INTERRUPTION UNDER ANY THEORY OF LIABILITY, WHETHER ARISING OUT OF OR BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
Limitation on Damages.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, WITH RESPECT TO THIS AGREEMENT AND ANY DAMAGES OR LIABILITY ARISING IN CONNECTION HEREWITH, IN NO EVENT WILL SELLER’S TOTAL LIABILITY TO BUYER (OR ANY AFFILIATE OF BUYER OR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, DIRECTORS, SHAREHOLDERS, AFFILIATES, CUSTOMERS, OR OTHER REPRESENTATIVES) OR ANY THIRD PARTIES UNDER ANY AND ALL THEORIES OF LIABILITY, INCLUDING WITHOUT LIMITATION THEORIES BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY BUYER TO SELLER UNDER THE APPLICABLE SALES DOCUMENTS DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS ON LIABILITY IN THIS SECTION 10 SHALL NOT APPLY TO: (A) BUYER’S OBLIGATION TO PAY AMOUNTS DUE UNDER THIS AGREEMENT, INCLUDING INTEREST, COLLECTION COSTS, AND ATTORNEYS’ FEES; (B) BUYER’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT; (C) EITHER PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS; (D) LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT; OR (E) ANY OTHER LIABILITY THAT, AS A MATTER OF APPLICABLE LAW, MAY NOT BE LIMITED OR EXCLUDED.
Severability and Enforceability.
THE PARTIES ACKNOWLEDGE THIS SECTION 10 IS AN ESSENTIAL PART OF THE BARGAIN BETWEEN THE PARTIES, HAS BEEN INCLUDED AS A MATERIAL INDUCEMENT FOR EACH PARTY TO ENTER INTO THIS AGREEMENT, AND THE PARTIES WOULD NOT HAVE ENTERED INTO THE TRANSACTIONS HEREUNDER ON THE TERMS HEREOF BUT FOR THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 10 AS WRITTEN. THE PARTIES AGREE THIS SECTION 10 SHOULD AND WILL APPLY TO ALL TRANSACTIONS HEREUNDER REGARDLESS OF THE FAILURE OF ANY REMEDY HEREUNDER OF ITS ESSENTIAL PURPOSE.
11. Termination.
In addition to any remedies that may be provided under this Agreement, Seller may immediately terminate this Agreement (in whole or in part) and/or any pending Sales Document or ongoing warranty hereunder without incurring any liability if Buyer: (a) fails to pay any amount when due under this Agreement and such failure continues for at least 10 days after the due date for such payment(s); (b) has not otherwise performed or complied with any of this Agreement, and such failure continues for 15 days; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. Buyer acknowledges all Sales Documents accepted by Seller are firm orders and may not be canceled or modified by Buyer without the prior written approval of Seller.
12. Export Control and Government Regulations.
Buyer acknowledges that any or all of the Products may be subject to export control laws, related regulations, regulatory determinations, judicial decisions, and other economic sanctions (the “Export Regulations”), and that diversion contrary to Export Regulations is prohibited. Export Regulations include, without limitation, the U.S. Export Administration Regulations (15 C.F.R. §§ 730–774, administered by the U.S. Department of Commerce, Bureau of Industry and Security), the International Traffic in Arms Regulations (22 C.F.R. §§ 120–130, administered by the U.S. Department of State, Directorate of Defense Trade Controls), the economic sanctions and embargo programs administered by the U.S. Department of the Treasury, Office of Foreign Assets Control (31 C.F.R. Chapter V), the anti-boycott regulations (15 C.F.R. Part 760), and the export control and sanctions laws of any other applicable jurisdiction. Buyer represents, warrants, and covenants that (1) with respect to all Products, Buyer will comply will all applicable Export Regulations; and (2) Buyer will not permit the Products to be used for any purposes prohibited by Export Regulations or any other applicable laws that may govern the use of Products in the relevant jurisdiction. Buyer further represents, warrants, and covenants that: (3) neither Buyer nor any of its principals, owners, officers, directors, employees, or agents is (i) a Denied Person, Restricted Party, or Specially Designated National, or otherwise identified on any list of denied, restricted, or sanctioned parties maintained by the U.S. Government (including the Denied Persons List, Entity List, Military End User List, and Specially Designated Nationals and Blocked Persons List) or any comparable list maintained by the United Nations, European Union, United Kingdom, or any other relevant jurisdiction, or (ii) owned or controlled by, or acting on behalf of, any such person; (4) Buyer is not purchasing the Products for export, re-export, transfer, or use, directly or indirectly, to or by any country, entity, or person subject to comprehensive U.S. or applicable foreign sanctions, or for any prohibited end use including, without limitation, nuclear, chemical or biological weapons, missile technology, or military intelligence end uses; and (5) Buyer will provide such end-use, end-user, destination, and other certifications as Seller or applicable law may require prior to shipment. Buyer shall indemnify and hold Seller harmless from and against any and all losses, damages, penalties, fines, costs, and expenses (including reasonable attorneys’ fees) arising out of or related to any breach by Buyer of its obligations under this Section 12. Seller may, in its sole discretion, delay, cancel, or decline any order if Seller reasonably believes shipment would violate any Export Regulation.
13. General.
Seller will not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any obligation under this Agreement when such failure or delay is caused by or results from circumstances beyond the reasonable control of Seller, including without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, supply chain interruptions or delays, industrial disturbances, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lockouts, strikes or other labor disputes (whether or not relating to Seller's workforce), power outages, or restraints or delays affecting carriers, or Seller’s inability to timely obtain supplies of suitable goods, materials, (each a “Force Majeure”). Buyer may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Seller may assign, delegate, or subcontract this Agreement and/or any or all of its rights or obligations hereunder. Any purported assignment or delegation in violation of this Section 13 is null and void. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party will have authority to contract for or bind the other Party in any manner whatsoever. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assignors and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever. This Agreement shall be governed by the laws of the State of North Carolina, without regard to any conflict of law principles that would require the application of laws of any other state. All claims or disputes arising out of or in connection with this Agreement will be heard exclusively by the federal or state courts located in North Carolina. To that end, each Party irrevocably consents to the exclusive jurisdiction of, and venue in, any such court and waives any right to object that any such court does not have jurisdiction. The UN Convention for the International Sale of Goods will not apply to this Agreement. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") will be in writing and addressed to the Parties at the addresses set forth on the face of the Sales Documents or to such other address that may be designated by the receiving Party in writing. All Notices will be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (i) upon receipt of the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section 13. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement. No waiver by a Party of any provision hereunder is effective unless explicitly set forth in writing and signed by the other Party. No failure or delay to exercise any right, remedy or privilege arising hereunder operates, or is to be construed, as a waiver thereof. No single or partial exercise of any right, remedy, or privilege hereunder precludes any other exercise thereof or the exercise of any other right, remedy, or privilege. Each Party will comply with all applicable laws, regulations and ordinances. Any use of Products and related documentation by or for the U.S. Government will be governed solely by this Agreement.
14. Indemnification by Buyer.
Buyer shall indemnify, defend, and hold harmless Seller and its affiliates, officers, directors, employees, agents, successors, and assigns (collectively, the “Seller Indemnitees”) from and against any and all third-party claims, actions, suits, proceedings, demands, losses, damages, liabilities, settlements, judgments, fines, penalties, costs, and expenses (including reasonable attorneys’ fees and costs of investigation and defense) arising out of or relating to: (a) Buyer’s use, handling, storage, resale, modification, combination, or disposal of any Products; (b) any representation or warranty made by Buyer to any third party regarding the Products that exceeds the representations or warranties expressly granted by Seller under this Agreement; (c) Buyer’s use of the Products in any clinical, diagnostic, therapeutic, GMP, GLP, GCP, IVD, or other regulated application, or in any manner contrary to the Research Use Only restriction set forth in Section 9; (d) Buyer’s breach of its export control, sanctions, anti-boycott, or trade-compliance obligations under Section 12; (e) Buyer’s negligence or willful misconduct; or (f) any personal injury, property damage, or environmental harm caused by Buyer’s possession, handling, or use of the Products. Seller shall provide Buyer with prompt written notice of any claim for which indemnification is sought. Buyer shall have the right to control the defense and settlement of any such claim with counsel reasonably acceptable to Seller, provided that Buyer shall not settle any claim in a manner that imposes any obligation or admission on any Seller Indemnitee without Seller’s prior written consent. Seller may, at its own expense, participate in the defense of any such claim with counsel of its choosing.
15. Intellectual Property.
No rights in, to, or under any patent, trademark, copyright, trade secret, know-how, or other intellectual property of Seller, its affiliates, or any third party (including any product manufacturer) are granted, conveyed, or transferred to Buyer by this Agreement, except the limited right to use and resell the Products in accordance with this Agreement and applicable law. Buyer shall not, and shall not permit any third party to, reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code, underlying design, construction, or composition of any Product, except to the extent such restriction is expressly prohibited by applicable law. SELLER MAKES NO REPRESENTATION OR WARRANTY THAT THE PRODUCTS, OR BUYER’S USE, RESALE, OR COMBINATION THEREOF, DO NOT INFRINGE OR MISAPPROPRIATE THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, AND SELLER HAS NO OBLIGATION TO DEFEND OR INDEMNIFY BUYER AGAINST ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION. Buyer shall indemnify the Seller Indemnitees (as defined in Section 14) against any third-party claim of infringement or misappropriation arising from Buyer’s use, resale, modification, or combination of the Products, in accordance with the indemnification procedures set forth in Section 14.
16. Compliance with Laws.
Buyer shall comply with all applicable federal, state, local, and foreign laws, statutes, regulations, ordinances, and orders relating to its performance under this Agreement and its possession, handling, storage, transportation, use, resale, and disposal of the Products, including without limitation: (a) the U.S. Foreign Corrupt Practices Act (15 U.S.C. §§ 78dd-1 et seq.), the U.K. Bribery Act 2010, and all other applicable anti-bribery and anti-corruption laws; (b) applicable anti-money-laundering laws, including the Bank Secrecy Act (31 U.S.C. §§ 5311 et seq.); (c) applicable occupational safety, biosafety, and hazardous-materials transportation laws, including OSHA standards (29 C.F.R. Part 1910), the Hazardous Materials Regulations (49 C.F.R. Parts 171–180), and applicable EPA regulations; and (d) the export controls and sanctions regimes identified in Section 12. Buyer shall not, directly or indirectly, offer, pay, promise, or authorize any payment or transfer of anything of value to any government official or any other person for the purpose of obtaining or retaining business or any improper advantage in connection with this Agreement.
17. Modification of Terms.
Seller reserves the right, in its sole discretion, to modify, amend, or update these Terms at any time by posting the revised Terms on Seller’s website at 2ndwindlabs.com or on such other URL as Seller may designate. The revised Terms will be effective as of the effective date set forth therein and will apply to all orders placed on or after such effective date. Buyer’s continued placement of orders following the posting of revised Terms constitutes Buyer’s acceptance of such revised Terms. The Terms applicable to any particular order are those in effect on the date Seller accepts such order. No modification or amendment of these Terms by Buyer shall be effective unless set forth in a writing signed by an authorized representative of Seller.
18. Electronic Acceptance and Signatures.
The parties acknowledge and agree that this Agreement may be executed, accepted, and delivered electronically, including by click-through acceptance on Seller’s website, submission of an order, or exchange of electronic Sales Documents. Such electronic acceptance shall have the same force and effect as a handwritten signature and shall constitute a valid and binding agreement under the Electronic Signatures in Global and National Commerce Act (15 U.S.C. §§ 7001 et seq.), the Uniform Electronic Transactions Act as enacted in the applicable jurisdiction, and any comparable foreign law. Each party waives any defense to the enforceability of this Agreement based on the electronic form of acceptance or signature. Notices required or permitted hereunder may be delivered by electronic mail to the email address set forth on the applicable Sales Documents or such other address as the receiving Party may designate in writing, with such Notice effective upon confirmed receipt.
19. Buyer Representations and Warranties.
Buyer represents and warrants to Seller that: (a) it is either (i) a business, research, educational, or governmental entity, or (ii) an individual who has training, facilities, and experience appropriate for the safe use of the Products in a research, educational, or similar non-clinical context; (b) Buyer has full power and authority to enter into and perform this Agreement; (c) Buyer is in compliance with, and shall remain in compliance with, all applicable biosafety, hazardous-materials, environmental, and occupational-health-and-safety laws and regulations where applicable; (d) Buyer is not a Denied Person, Restricted Party, or Specially Designated National, is not owned or controlled by any such person, and is not purchasing the Products on behalf of any such person or for any prohibited end use as described in Section 12; and (e) the individual placing any order on behalf of Buyer has been duly authorized to bind Buyer to this Agreement. Each order placed by Buyer constitutes a renewed representation and warranty of each of the foregoing as of the date of such order.