Product Hub Terms and Conditions of Purchase
Last Updated January 12, 2023
Where a Purchaser orders Products from Scientist via the Product Hub (defined below), these Terms apply and form part of the Contract between Scientist and the Purchaser (each a "Party" and together the "Parties"). Such transactions are not governed by any of the Platform's Supplier Agreements. In the event of a conflict between these Terms and any provisions in any other Platform Agreement (defined below), in relation to any order for Products via the Product Hub governed by these Terms, these Terms prevail. Terms in the Platform Agreement regarding Purchaser's use of the Platform (as opposed to terms regarding requests and purchases of goods and services governed bv any Supplier Agreement) do however apply to the Purchaser's use of the Platform generally. Where the Purchaser is accessing the Product Hub via Scientist's external Product Hub website use of the Platform is governed by the separate terms of service posted on that site whether or not the Purchaser has a Platform Agreement.
The following terms have the following meanings, unless the specified or the context requires otherwise:
"Affiliates" means with respect to a Party, any corporation, company, partnership, joint venture, firm or other entity that controls, is controlled by or is under common control with, the Party. As used in this definition, "control" means (a) in the case of a corporate entity, direct or indirect ownership of at least fifty percent (50%) of the stock or shares having the right to vote for the election of directors and (b) in the case of a non-corporate entity, the direct or indirect power to direct, or cause the direction of, the management and policies of the non-corporate entity or the power to elect at least fifty percent (50%) of the members of the governing body of such non-corporate entity.
"Contract" means the contract between Scientist and the Purchaser for the sale and purchase of the Products consisting of: i) these Terms; ii) the SOW they are included on; iii) any other documents (or parts thereof) specified in the SOW; and iv) the Purchase Order.
"Conform" means conformance with the warranty provided in Section 20 of these Terms. "Conforming" and "Conformance" shall be construed accordingly.
"End Supplier" means a third party from whom Scientist acquires the Products before selling them to the Client under the Contract. In some cases, the End Supplier may have appointed Scientist as its distributor of certain Products in a given territory.
"Platform Agreement" means an agreement entitled "Marketplace Agreement" between Scientist and the Purchaser regarding the Purchaser's use of the Platform.
"Non-Conformance" means a failure of a Product to Conform. "Non–Conformance" and "Non-Conforming" shall be construed accordingly.
"Platform" means the online marketplace known as Scientist.com owned and operated from time to time by Scientist.
"Product Hub" means: i) where the Purchaser has a Platform Agreement, the part of the Platform where Products subject to these Terms can be requested and/or purchased with such name; or, ii) where the Purchaser does not have a Platform Agreement, the external platform owned and operated by Scientist where Products subject to these Terms can be requested and/or purchased.
"Price" means the price of the Products as specified in the Contract, (which may be different to the price listed from time to time on the Product Hub).
"Product(s)" means those products set forth in the SOW and/or ordered in the Contract (as the context requires).
"Purchase Order" means the purchase order issued by the Purchaser to Scientist for the Products set forth in the SOW and containing the SOW reference number.
"Purchaser" means the person, institution, firm or company who is the purchaser of the Products named on the SOW.
"Scientist" means The Assay Depot, Inc., (d.b.a. Scientist.com) with offices at 329 S Highway 101, Suite 230, Solana Beach, CA 92075.
"SOW" means the statement of work or purchase requisition issued by Scientist containing a quote for the Products requested by the Client and containing these Terms.
BASIS OF PURCHASE AND SALE
1. No terms submitted at any time by the Purchaser (including without limitation on the Purchase Order) shall form any part of the Contract. In the event of any conflict between any part of the Contract (including without limitation these Terms) and any specific term or condition in the SOW, the SOW shall prevail. Save as set forth above in this Section 1, no varying or additional general terms contained in any order confirmation, Purchase Order, invoice or other notification or document issued by Scientist or Purchaser in relation to the SOW or Contract and their subject matter shall be of any effect.
2. Subject to Section 3, where the Client wishes to enter into the Contract, it shall issue the Purchase Order to Scientist via the Platform. The Purchaser represents and warrants that the Purchaser has the ability to enter into and form contracts, and to the extent an individual issues the Purchase Order on behalf of the Purchaser and/or pays for the Products in advance by credit card (as applicable), that individual is authorized to do so and to bind the Purchaser to the Contract. If you represent the Purchaser and do not have this authority, you must not request products from Scientist and must not issue any Purchase Order on behalf of the Purchaser or make any payment for Products in advance via credit card. Once issued, the Purchaser may not amend or revoke the Purchase Order without the written consent of Scientist, which may be by email.
3. The Contract is created and shall become binding on the Parties when Scientist confirms it accepts the Purchase Order. Scientist may, at its discretion accept payment in advance by credit card, in which case the Contract shall be created and become binding on the Parties when such payment is made, whether or not the Purchaser issues a Purchase Order. The Purchaser is not obliged to issue a Purchase Order where payment is made in advance by credit card. Scientist may, at its sole discretion, conduct any background and/or credit checks on the Purchaser it considers necessary or desirable from time to time.
4. Scientist may terminate the Contract in whole or in part at any time by providing written notice to the Purchaser. Where this is the case, relevant parts of SOWs, Purchase Orders and Contracts for the Products in question shall be deemed to be null and void and Scientist shall have no liability of any nature whatsoever in relation thereto. Where payment has been made in advance, Scientist will refund relevant sums.
5. The Products are supplied to the Purchaser by Scientist for "Research Use Only" ("RUO"), not for therapeutic or diagnostic use or for resale. The Purchaser warrants, represents and undertakes that the Products shall only be used by its, its Affiliates and on its/their behalf for RUO and shall not be re-sold.
PRICE AND PAYMENT
6. Prices for the Products exclude all shipping costs, handling fees, sales, value added and other taxes and duties imposed with respect to the sale, delivery, or use of any Products covered hereby, all of which must be paid by the Purchaser. If the Purchaser claims any exemption, Purchaser must provide a valid, signed certificate or letter of exemption for each respective jurisdiction. LIST PRICES MAY VARY FROM THE PRICE DISPLAYED ON THE PRODUCT HUB FOR CERTAIN PRODUCTS.
7. Scientist may invoice the Purchaser for all sums payable by the Purchaser once the Contract has been created. All invoices shall be paid by the Purchaser in the number of days set forth in the Platform Agreement and if none specified, within 30 (thirty) days of the date of the relevant invoice. If Purchaser fails to pay any amounts when due, Purchaser shall pay Scientist interest thereon at a periodic rate of one and one-half percent (1.5%) per month (or, if lower, the highest rate permitted by law), together with all costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) incurred by Scientist in collecting such overdue amounts or otherwise enforcing Scientist's rights hereunder. Scientist reserves the right to require from the Purchaser full or partial payment in advance. All payments shall be made in the invoice currency to the bank account notified to the Purchaser on the invoice. In the event the Purchaser does not pay in the correct invoice currency, Scientist reserves the right to charge the Purchaser a currency conversion charge which the Purchaser shall pay to Scientist within 30 days of receipt of an invoice therefor.
SHIPMENT AND DELIVERY
8. Scientist shall ensure that all Products are appropriately packed and labelled. Scientist shall arrange shipment of the Products using its chosen carrier to the Purchaser's requested destination set forth in the SOW (the "Destination") at the Purchaser's cost. Scientist at its discretion may make partial shipments and invoice each shipment separately. Shipping dates are all estimates. Scientist is not responsible for any costs, losses or expenses of any nature whatsoever suffered or incurred by the Purchaser resulting from any delay to shipment or delay during transit and Purchaser may not refuse delivery or be relieved of obligations under the Contract as a result of such delay.
9. The Contract is for a business to business arrangement, not business to consumer. The Destination must be a business address and Scientist reserves the right not to enter into any Contract with an individual and/or the right to refuse to ship Products to any personal address.
10. Subject to Section 8, the property and risk in the Products shall pass to the Purchaser upon delivery at the Destination. Purchaser is responsible for loss or damage to the Products after delivery at the Destination. Where no one is present to take delivery, Scientist may, at is sole discretion, place the Products in storage or reschedule delivery at the sole cost and risk of the Purchaser. Alternatively, where the Purchaser's carrier is used: 1) risk and title shall pass to the Purchaser when the Products are loaded onto the Purchaser's carrier at the collection point specified by Scientist ("Collection Point"), Purchaser is responsible for loss or damage to the Products after such loading and Scientist may, at its discretion, make the Products available for collection in full or in part at any one time; 2) The Purchaser shall provide Scientist with at least 48 hours advance notice of the time its carrier will collect the Products from the Collection Point; and 3) in the event the carrier arrives later than such time, Scientist may, at its sole discretion, place the Products into storage at the sole cost of the Purchaser. Sections 11 and 12 shall always apply.
11. Subject always to Section 12, Scientist shall be responsible for ensuring that the Products clear all export customs from Scientist's dispatch location to the Destination. Purchaser shall be responsible for ensuring the Products clear all import customs from Scientist's dispatch location to the Destination.
12. Purchaser is responsible for providing any necessary permits or other information necessary for the Products to clear all export and import customs between Scientist's dispatch location and the Destination in a timely manner. The Purchaser will abide by all applicable laws, regulations, treaties and agreements relating to export, re-export and/or import of any Product. Scientist shall not be liable for any breach of the Contract or delay or failure of Conforming Products to arrive at the Destination caused by any failure of the Purchaser to comply with this Section 12.
13. Scientist shall provide the Purchaser with Product literature available from the End Supplier as soon as reasonably practicable upon request.
14. Purchaser will direct all enquiries regarding delivery and use of Product to Scientist who may, at its discretion, request the End Supplier to provide technical and other assistance.
INSPECTION AND ACCEPTANCE
15. Purchaser shall have five (5) calendar days (inclusive) from delivery of Products to the Destination (or collection of the Products from the Collection Point where the Purchaser's carrier is used) to inspect the shipment for acceptance. If, as a result of visual inspection, any Product within such shipment fails to Conform, Purchaser has the right to reject such Non-Conforming Product(s) during such five (5) day period by notifying Scientist in writing (including to the email address specified in Section 19 or as otherwise notified to the Purchaser by Scientist from time to time). Purchaser may, at its option: (a) terminate the relevant part of the Contract relating to the rejected Non-Conforming Products and receive a refund or invoice credit for relevant amount (as applicable); or b) request Scientist to deliver replacement Products (timescales for re-delivery being estimates only), which shall be the Purchaser's sole remedy for such Non-Conformance and Scientist shall have no other liability of any nature whatsoever to the Purchaser relating to or arising therefrom.
16. In the event that any Products delivered fail to Conform and such Non-Conformance was not reasonably apparent as a result of visual inspection in the timescale set forth in Section 15 above, Purchaser may reject such the Non-Conforming Products by giving written notice to Scientist (including to the email address specified in Section 19 or as otherwise notified to the Purchaser by Scientist from time to time) within (20) twenty days of delivery of the relevant shipment to the Destination (or collection of the Products from the Collection Point where the Purchaser's carrier is used) (both dates inclusive).The Purchaser shall have the same remedies set forth in Section 15 which shall be the Purchaser's sole remedy for such Non-Conformance and Scientist shall have no other liability of any nature whatsoever to the Purchaser relating to or arising therefrom.
17. Purchaser shall also have five (5) calendar days from delivery of Products at the Destination (or collection of the Products from the Collection Point where the Purchaser's carrier is used) (both days inclusive) to inspect the delivered shipment for any shortfall in the quantity of Products received against the quantity ordered ("Shortfall") and notify Scientist of the same in the manner specified in Section 15. In the event of any Shortfall, the remedies in Section 15 shall apply which shall be the Purchaser's sole remedy for such Shortfall and Scientist shall have no other liability of any nature whatsoever to the Purchaser relating to or arising therefrom.
18. Sections 15-17 (inclusive) are subject always to the Warranty, Indemnity and Liability section of these Terms.
19. All notices issued by the Purchaser under Sections 15, 16 and/or 17 shall be sent by Purchaser to Scientist at firstname.lastname@example.org and shall specify the manner in which the Products in question fail to Conform or details of the Shortfall (as applicable), along with evidence of the same. If Scientist requires the Purchaser to return the rejected Products, such return shall be arranged by, handled and paid for by the Purchaser, sent to the destination notified to it by Scientist and shall be at Purchaser's sole risk. Such shipping costs incurred by the Purchaser shall be refunded by Scientist for Products that do not Conform. Any refunds or credits issued to the Purchaser pursuant to Sections 15, 16 and/or 17, along with shipping costs for replacement Products or shipping costs and cost of Products to make up any Shortfall, shall be repaid by Purchaser to Scientist within 5 days of an invoice therefor in the event the returned Products are subsequently found to Conform, or the shipment being found to have no Shortfall (as the case may be). For clarity, the Purchaser may elect to receive replacement Products OR a refund/credit for Non-Conforming Products under Sections 15, 16 and/or 17 (as applicable), but not both. Notwithstanding any other provision of these Terms, if Scientist determines that the Purchaser has rejected Products under these Terms that were not Non-Conforming, Purchaser shall pay or reimburse Scientist for all costs of investigating and responding to such request at Scientist's then prevailing time and materials rates. If Scientist provides refunds or replacements in relation to such Products, Purchaser shall pay Scientist for all Scientist's costs in relation thereto at Scientist's then prevailing rates.
WARRANTY, IDEMNITY AND LIABILITY
20. Products supplied by Scientist that are obtained by Scientist from and End Supplier or original manufacturer are not warranted by Scientist and Scientist disclaims all warranties associated with the accuracy of any original manufacturer or End Supplier Product information or literature, BUT Scientist agrees to assign to the Purchaser any warranty rights in such Products that Scientist may have from the original manufacturer or End Supplier, to the extent such assignment is allowed by such original manufacturer or End Supplier.
21. In no event shall Scientist have any obligation to make refunds, repairs, replacements or corrections required, in whole or in part, as the result of any of the following after delivery of the Products to the Destination (or collection of the Products from the Collection Point where the Purchaser's carrier is used): (i) normal wear and tear, (ii) accident, disaster or event of force majeure, (iii) breach of the Contract, breach of applicable laws and regulations, misuse, misconduct, fault or negligence of or modification of the Product by or on behalf of the Purchaser or any third party handling, using, transporting or storing the Products, (iv) use of the Products in a manner for which they were not designed, (v) causes external to the Products such as, but not limited to, power failure or electrical power surges, (vi) improper storage and handling of the Products; and/or (vii) combining the Product with any other material.
22. SAVE AS SET FORTH IN THESE TERMS, SCIENTIST MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED IN FACT OR BY OPERATION OF LAW, OR STATUTORY, AS TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION: ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, SCIENTIST DISCLAIMS ANY AND ALL SUCH WARRANTIES.
23. Purchaser warrants to Scientist that it will ensure that the Products are not re-sold and will only be used, handled and stored as permitted by this Contract, including without limitation in accordance with the Product literature, only for RUO and not for therapeutic or diagnostic purposes. Purchaser further warrants to Scientist that it will ensure the Products are used, handled and stored at all times in accordance with all then applicable laws and regulations.
24. We want to avoid claims of intellectual property infringement. If Scientist believes a Product we have delivered to the Purchaser may be subject to a claim for intellectual property infringement, the Purchaser must allow Scientist (if requested by Scientist and at Scientist's option) to either (a) secure for the Purchaser the right to continue using the Product; (b) substitute the Product with another suitable Product with similar functionality; or (c) tell the Purchaser to return the unused amount of the Product to us and we will refund to you the pro rata price paid.
25. The Purchaser shall defend and indemnify Scientist, its Affiliates and its/their respective officers, employees, shareholders and agents (the "Scientist Indemnitees") in full and on demand against any and all Losses any of the Scientist Indemnitees may suffer or incur arising or relating to or arising from any claim against any of the Scientist Indemnitees by a third party arising or resulting from or relating to: (a) any breach of the Contract by the Purchaser, its Affiliates or its/their respective officers, employees, contractors, subcontractors, representatives or agents; (b) any negligence or misconduct in relation to the use, handling or storing of the Products by or on behalf of the Purchaser, its Affiliates or its/their respective officers, employees, contractors, subcontractors, representatives or agents; or (c) Purchaser's modification of a Product. Scientist Indemnitees are third party beneficiaries of their rights to indemnification set forth in these Terms. "Losses" means any and all claims, losses, damages, liabilities and expenses (including reasonable attorneys' fees and other costs of defending and/or settling any action) that Scientist may have to pay as a result of the claim.
26. Save in relation to gross negligence or willful misconduct, fraud, or any matter for which liability cannot be excluded or limited by law, in no event will Scientist be liable to the Purchaser for special, incidental, indirect, punitive or consequential damages (including without limitation loss of profits, loss of goodwill, loss of data or loss of use damages) in each case arising out of or related to this Contract or the Products, even if Scientist has been advised of the possibility of such damages or losses.
27. Save in relation to gross negligence or willful misconduct, fraud, or any matter for which liability cannot be limited by law, in no event will Scientist's liability to the Purchaser arising out of or relating to the Contract and/or Products exceed the price paid by the Purchaser for the Products in question, even if Scientist has been advised of the possibility of such damages or losses.
28. The Parties are independent contractors. The Contract does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Except as set forth in these Terms, nothing in the Contract, expressed or implied is intended to give rise to any third-party beneficiary rights.
29. The Contract is the final, complete, and exclusive expression of the agreement between the Parties regarding the Products and the matters contemplated by the Contract. The Contract supersedes and replaces, and the Parties disclaim any reliance on, all previous oral and written communications, representations, proposals, understandings, undertakings, and negotiations with respect to the Products and matters contemplated by the Contract and applies to the exclusion of any other terms that Purchaser seeks to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing.
30. Scientist shall have no liability resulting from delay in performance or non-performance of the Contract or matters contemplated hereby caused by Act of God, fire, flood, pandemic, epidemic, war, natural disaster, internet failure, government action or other circumstances beyond the reasonable control of Scientist (collectively "Events of Force Majeure").
31. Save as specified herein, the Contract may be changed only by a written agreement signed by an authorized representative of both Parties.
32. Scientist's Affiliates from time to time may fulfil Scientist's obligations and/or benefit from Scientist's rights set forth in the Contract in whole or in part. Scientist may also assign, novate or subcontract all or any part of the Contract to any of its Affiliates from time to time. Scientist shall remain responsible for any breach of the Contract by its subcontractors as if such breach was its own.
33. This Contract, the transactions contemplated hereby and all disputes between the Parties under or related to this Contract, the Products or the facts and circumstances related thereto, whether in contract, tort or otherwise, shall be governed by and construed in accordance with the laws of the State of Delaware, USA, without giving effect to any principles of conflicts of laws. The Parties agree to use commercially reasonable efforts to amicably resolve any disputes relating in any way to the interpretation or performance of the Contract. If within thirty (30) days, the Parties have not succeeded in negotiating a resolution of such dispute, either Party may initiate an action to resolve such dispute in the Federal and State Courts of the State of Delaware, USA, which shall be the exclusive venue for the resolution of such disputes. Each Party hereby consents to the personal and exclusive jurisdiction and venue of these Courts.
34. Notification provisions in the Platform Agreement will apply equally to notices required or given by the Parties under the Contract. Where no such provisions exist, save as specified otherwise in these Terms: 1) any notice required or permitted to be given in accordance with the Contract will be effective only if it is in writing and sent using: (a) by certified or registered mail; or (b) a nationally recognized overnight courier, to the appropriate Party at their registered address; 2) each Party hereto expressly consents to service of process by registered mail; and 3) Notices are deemed given two (2) business days following the date of mailing, or one (1) business day following delivery to a courier. Either Party may change its address for receipt of notice by notice to the other Party through a notice provided in accordance with this Section.
35. To the extent allowed by law, the English version of the Contract is binding and other translations are for convenience only.
36. In relation to their activities regarding the Contract, the Parties agree to comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption;
37. The waiver by either Party of any breach of any provision of the Contract does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with the Contract will not be a waiver of such Party's right to demand strict compliance in the future. No waiver will be effective unless in writing executed by a duly authorized representative on behalf of the waiving Party.
38. If any part of the Contract is found to be illegal, unenforceable, or invalid, the remaining portions of the Contract will remain in full force and effect and the relevant provision shall be deemed replaced with a provision that so far as possible reflects the original intention of the Parties.
39. Scientist is permitted to disclose the Purchaser's order details (including, without limitation, information regarding Products requested, delivery addresses and contact details etc.) to its Affiliates and its/their respective employees, officers, directors, agents, representatives, contractors, subcontractors, End Suppliers, carriers and any other third party to the extent necessary or desirable to perform its obligations under the Contract and shall not be in breach of any confidentiality provisions set forth in any Platform Agreement by doing so. This Section 39 shall take precedence over any conflicting provision in any Platform Agreement.