Cook MyoSite - Terms and Conditions of Sale and Delivery

Effective March 07, 2019

Thank you for your interest in purchasing Cook MyoSite, Inc. products. We value your business, and our goal is to make your purchasing experience as smooth as possible. If you have any questions or concerns about our quotation or Sales Order or these Terms and Conditions, please contact Customer Service at researchsales@cookmyosite.com.

Cook MyoSite, Inc. is referred to herein as the "Seller." The customer or person or entity purchasing any Materials (defined below) from the Seller is referred to as the “Buyer.” The Terms and Conditions set forth in these Terms and Conditions of Sale and Delivery, together with the Quote and/or Sales Order, shall be referred to collectively as the “Agreement.” Seller and Buyer may be referred to herein individually as “Party,” and collectively as “Parties.”

Buyer's acceptance of the Product(s) will manifest Buyer's agreement to the terms of this Agreement. Seller’s provision of the Product(s) will manifest Seller’s agreement to the terms of this Agreement.

I. Definitions. For the purposes of these Terms, the following terms are defined below:

1. Agreement. The Agreement, as defined above, governs Buyer’s purchase of Materials for a fee specified in the Quote and/or Sales Order, of which these Terms and Conditions of Sale and Delivery are made a part.

2. Commercial Purposes. The term “Commercial Purposes” includes, but is not limited to: use of Materials, either modified or unmodified, to provide a service, materials, or data for a fee or other consideration from a third party. “Materials” is defined below.

3. Common Carrier. “Common Carrier” means a company such as, but not limited to, Federal Express or UPS that transports Materials at set rates. Choice of Common Carrier will be made at Seller’s sole option.

4. Confidential Information. “Confidential Information,” notwithstanding that it is not marked “Confidential,” will include, but not be limited to: all information relating to, arising or derived from scientific aims, affairs and processes, plans, notes, instructions, notices, technical data, specifications, any and all trade secrets, privileged records, business information or other information disclosed or developed by Cook MyoSite , or that Buyer derives or discovers in the course of using Materials.

5. Cook MyoSite. “Cook MyoSite,” used interchangeably with “Seller,” is the manufacturer of Products to be sold to the Buyer.

6. Freight Forwarder. “Freight Forwarder” shall mean a person or company that organizes shipments of Materials from Seller to Buyer at its final point of distribution. Such Freight Forwarder shall contract with a Common Carrier or multiple carriers to move the Materials.

7. Materials. The term “Materials” is a collective reference to Ancillary Product(s) and Product(s) that may be referred to collectively as “Materials” when they are intended to mean both Products and Ancillary Products and/or any items set forth in the applicable Quote, which is defined below. The term “Ancillary Product(s)” includes, but is not limited to, components, non-biological materials and de-identified data; any such data and data derived from the Materials will be subject to the Confidentiality provisions more fully set forth below. “Product” means biologics, reagents, media or any other laboratory research materials developed by Seller’s internal, proprietary processes. All such Materials will be made available to Buyer in exchange for reimbursement, subject to Sec. XII below.

8. Notices. Upon receipt of these Terms and Conditions, Buyer shall provide to Seller all Buyer contact information that includes all applicable information that will enable Seller to contact the Buyer, including without limitation, the name of the agent or Buyer employee responsible for coordinating the shipment along with his/her telephone number, postal address and email address. Contact Information for at least two Buyer agents and/or employees of the Buyer will be listed in the event that one representative is unavailable. Cook MyoSite is located at 105 Delta Drive; Pittsburgh, PA, 15238, USA, to the attention of Laboratory Research Products with an email address of researchsales@cookmyosite.com.

9. Purchase Order. “Purchase Order” refers to a Buyer-generated document having a unique number assigned by the Buyer that authorizes a purchase transaction which must include the following without limitation:

a) Cook MyoSite item code and description of Product
b) Quantity requested of each Cook MyoSite item code
c) Agreed upon Reimbursement, as defined below, to Seller from Buyer for Materials
d) End-user contact information, per Notices, as defined above, and specific shipping address to the location that Buyer wishes the Materials to be delivered.
e) Quote number (as applicable)
f) “Purchase Order Number” will, without written exception, appear on all correspondence, shipping labels, invoices and shipping documents.

10. Purchase Price. “Purchase Price” or “Reimbursement” refers to, interchangeably, the aggregate amount of monies due to Seller from Buyer in consideration of Seller’s provision of Materials.

11. Sales Order. “Sales Order” is a seller-generated document that authorizes sale of the Product or Materials, as applicable, issued after receipt of a Buyer's Purchase Order.

12. Shipping documents. Shipping documents include, but are not limited to, Packing Sheets, Bills of Lading and air waybills.

13. Shipping Lead Time. “Shipping Lead Time” means the amount of time between when Cook MyoSite receives the Purchase Order from the Buyer and when Cook MyoSite ships the Materials to the location designated on the Buyer’s Purchase Order. Buyer must submit the address and any instructions for shipping and delivery to Cook MyoSite in advance for Cook MyoSite’s review and approval based on, without limitation, the feasibility of the exchange. Buyer may not require delivery date that is shorter than the estimated ship date provided by Cook MyoSite without prior written approval by Cook MyoSite.

14. Quote. “Quote” means Seller’s specified Reimbursement of Materials for each respective order.


II. TERMS OF PAYMENT. Unless otherwise specified by Seller, Payment will be net thirty (30) days from date of Seller's invoice. In the event Buyer fails to make any Payment due to Seller within said thirty (30) days, Buyer shall be liable for all expenses, including attorneys' fees, relating to the collection of past due amounts. If any Payment owed to Seller is not paid when due, it shall bear interest, at a rate to be determined by Seller, which shall not exceed the maximum rate permitted by law, from the date on which it is due until it is paid. Materials may not be returned except with Seller’s permission. No payment or monies paid by Buyer to Seller will be revocable.

Invoices for Materials shall be made in accordance with the prices set forth in the Quote or Sales Order. Any Quote provided by Seller is firm only if Buyer enters an order within the time specified on the Quote, or, if none is mentioned, within 30 days.

III. Taxes and other Fees. Any current or future tax, duty, tariff or governmental charge (or increase in same) affecting Seller's costs of production, sale, services or delivery or shipment of Material(s), or which Seller is otherwise required to pay in connection with the sale, purchase, delivery, performance, storage, processing, use or consumption of Material(s), shall be added to the price or billed to Buyer separately, at Seller’s election. Seller will notify Buyer in advance of incurring such charges.

IV. Shipping Conditions. Shipping dates and quantities are approximate and not guaranteed. Seller shall use reasonable efforts to fill the orders according to the quantities and delivery date specified in the order. Partial shipments, charged pro-rata, and/or delayed delivery constitute a valid delivery and Buyer shall not be relieved of its obligations to accept and pay for shipments. Any delivery shall be paid for regardless of other controversies relating to other delivered or undelivered Materials. Unless agreed otherwise, Cook MyoSite will choose the shipping vendor best suited for the Buyer’s location and add the shipping cost to the final invoice. A rush order fee will apply for any delivery requests made outside of Cook MyoSite’s shipping lead-times at Buyer’s expense. Seller shall not be bound to tender delivery of any Materials for which Buyer has not provided shipping instructions and other required information. If the shipment or performance of the Material(s) is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse Seller for any and all storage costs and other additional expenses resulting therefrom.

Buyer shall assume full responsibility for the inspection of all shipments within the same day of receipt. Buyer shall notify Seller in writing of any failure to conform to specifications of the of the Materials immediately upon receipt. To reasonably cure any such failure, Seller requires immediate notice to accommodate the cold chain packaging.

V. Delivery of Materials. For any transfer of Materials, any risk of loss or damage shall pass to Buyer upon delivery from the Common Carrier unless otherwise agreed to by Cook MyoSite in writing.

VI. Freight Forwarder. The following terms and conditions apply if the Buyer requests, and Cook MyoSite consents, in writing, to use a Freight Forwarder of the Buyer’s own choosing:
Using a Freight Forwarder to ship Materials may result in complications outside of the control of Seller, and Seller shall bear no responsibility for the use of such Freight Forwarder whatsoever, and If a Freight Forwarder is used, Cook MyoSite will not be responsible for damage, defect, delays, or differences that occur to Materials after they are delivered to the Common Carrier, Buyer and/or Freight Forwarder.

VII. Representations and Warranties. The Buyer represents and warrants the following:

a) Buyer understands and agrees that Materials are for research use only.
b) Buyer will not, under any circumstances, resell the Materials and has no rights to transfer, convey, provide or use in any fashion Materials for Commercial Purposes.
c) The Materials shall not be used (a) in any product (b) for the purposes of producing any product or (c) for providing any service in which a product or service is sold or otherwise made available to any other person or entity without Seller’s express, written consent.
d) Buyer will use Materials in compliance with all applicable statutes and regulations, including, but not limited to, Public Health Service and National Institutes of Health regulations and guidelines such as, for example, those relating to research involving the use of anatomical specimens or recombinant DNA.
e) Buyer will not reproduce cell products or their components indefinitely via immortalization.
f) Buyer will not use Materials to identify individuals associated with applicable research samples.
g) Buyer will not use Materials for therapeutic or diagnostic purposes. Buyer expressly understands and agrees that the Materials have not been approved for human or veterinary use.
h) Buyer will not use the Materials in humans or other direct applications to human bodies.
i) Materials may not be used for invitro diagnostics or in vivo testing in human subjects or animals.
j) Buyer will not transfer, in any amount, manner or reason, Materials to a third party.
k) Buyer will not attempt to reverse-engineer, replicate or increase the amount of Materials; Buyer will not modify or reconstruct the Materials for investigational, commercial or any other use.
l) Buyer will use the Materials with prudence and appropriate caution in any experimental work. Recipient acknowledges that the Material may contain hazardous substances or properties in an inapparent state.
m) Buyer agrees to refer others to Seller upon any request for the Materials.

VIII. Laws and Regulations. Buyer represents and warrants that it will use Materials in accordance with all applicable laws and regulations.

IX. EXPORT/IMPORT. Buyer agrees that all applicable import and export control laws, regulations, orders and requirements, including without limitation those of the United States and the jurisdictions in which the Seller and Buyer are established or from which Materials may be supplied, will apply to their receipt and use. In no event shall Buyer use, transfer, release, import, export, Materials in violation of any and all applicable laws, regulations, orders or requirements. Buyer indemnifies Cook MyoSite for any repercussions resulting from Buyer’s use of Materials in violation of any national or international regulations or laws. Moreover, Buyer is the importer of record and must comply with all laws and regulations of the destination country.

Orders shipped outside of the United States may be subject to import taxes, customs duties and fees levied by the destination country. The Buyer of an international shipment may be subject to such import taxes, customs duties and fees, which are levied once a shipment reaches the Buyer's country or destination. Additional charges for customs clearance must be fulfilled by the Buyer.

Buyer represents and warrants that it has secured and paid for all permits, licenses and other approvals from all governmental officials and authorities that are necessary for Seller to provide the Materials and is solely responsible for any such permit, license or governmental approval.
In conjunction with Section V above, for sales in which the end destination of the Materials is outside of the United States (except for those international sales to Seller’s affiliated companies), risk of loss to the Materials shall transfer to Buyer immediately after the Materials have passed beyond the territorial limits of the United States.

X. Intellectual Property. It is agreed that all Materials shall remain the personal property of Seller and that title thereto shall remain with the Seller. Seller exclusively owns all intellectual property rights relating to its Materials. Seller’s sale of Materials grants Buyer a limited, non-transferable, right under Seller’s intellectual property: only Buyer may use the products it has bought from Seller and only for Buyer’s internal research purposes. No right to transfer, distribute or resell Seller’s products or any of its components is conveyed expressly, by implication or by estoppel. Ownership of inventions and/or discoveries developed under this Agreement shall follow inventorship under U.S. Patent law. Nothing contained herein shall affect the pre-existing rights of either Party in intellectual property developed prior to the date of the Agreement.

XI. Confidentiality. Cook MyoSite shall, at all times, retain title to any Confidential Information defined above. Buyer shall not disclose Confidential Information to any third party without Cook MyoSite’s prior written consent. Upon Cook MyoSite’s request, Buyer shall promptly return to Cook MyoSite all documents and copies of the Confidential Information.

Length of Obligation of Non-Disclosure. The obligations of Buyer under these Terms and Conditions shall survive and continue for ten (10) years after the expiration or earlier termination of the Agreement; however, for Confidential Information developed hereunder or disclosed and identified per applicable law as trade secret, then the duties and obligations for protection of such trade secret(s) hereunder will continue for the maximum period allowed under applicable law.

XII. Force Majeure. Seller will not be liable for any failure to deliver any of the Materials due to unforeseen causes beyond its control. Such causes include, but are not limited to, strikes, fires, floods, labor disputes, civil unrest, war, accidents, an inability to obtain raw materials or supplies, excessive demand for Materials over the available supply, customs, duties or surcharges, any interruption for any reason in the manufacture or supply of components or other materials by Seller suppliers, any act of God, or the action of any government. Cook MyoSite shall have the right, in the event of the above circumstances, to cancel active purchase orders.

XIII. Limitation of Liability. COOK MYOSITE HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY OTHER EXPRESS OR IMPLIED WARRANTIES ARISING THROUGH TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE.

IF COOK MYOSITE IS FOUND LIABLE FOR ANY LOSS OR DAMAGE DUE TO ITS NEGLIGENCE OR THE FAILURE TO PERFORM ITS OBLIGATIONS IN THESE TERMS AND CONDITIONS IN ANY RESPECT WHATSOEVER, COOK MYOSITE'S MAXIMUM LIABILITY WILL BE THE AMOUNT PAID FOR MATERIAL(s).

COOK MYOSITE EXPRESSLY DENIES ALL LIABILITY FOR ANY OTHER LOSS OR DAMAGE WHICH MAY OCCUR PRIOR TO, AT OR AFTER SIGNING THESE TERMS AND CONDITIONS. THIS INCLUDES LIABILITY BASED ON CONTRACT, TORT, NEGLIGENCE, WARRANTIES AND ANY OTHER THEORY OF LIABILITY.

THIS EXCLUSION COVERS LIABILITY FOR THE FOLLOWING BUT IS NOT LIMITED TO THE FOLLOWING: LOST PROFITS; LOST OR DAMAGED PROPERTY; LOSS OF USE OF PROPERTY OR THE PREMISES; GOVERNMENTAL FINES AND CHARGES; AND THE CLAIMS OF THIRD PARTIES. ALSO COVERED BY THIS EXCLUSION ARE THE FOLLOWING TYPES OF DAMAGES: DIRECT, INDIRECT, SPECIAL, INCIDENTAL, AND CONSEQUENTIAL DAMAGE.

BUYER UNDERSTANDS THAT COOK MYOSITE IS NOT AN INSURER. BUYER IS RESPONSIBLE FOR OBTAINING ALL INSURANCE BUYER THINKS IS NECESSARY, INCLUDING COVERAGE FOR PERSONAL INJURY AND PROPERTY DAMAGE. BUYER RELEASES COOK MYOSITE FROM ANY LIABILITY FOR ANY EVENT OR CONDITION COVERED BY BUYER'S INSURANCE, EXCEPT TO THE EXENT THAT ANY EVENT OR CONDITION IS CAUSED BY COOK MYOSITE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. COOK MYOSITE DOES NOT GUARANTY THAT THE MATERIALS WILL PREVENT PERSONAL INJURY OR ANY DAMAGE TO THE SITE, BUYER, OR RELATED INTERESTED PARTIES.

BUYER AGREES TO INDEMNIFY AND HOLD HARMLESS COOK MYOSITE AND WITHOUT LIMITATION ITS MEMBERS, AFFILIATES, AGENTS, EMPLOYEES AND REPRESENTATIVES (THE "REPRESENTATIVES") FROM AND AGAINST ANY AND ALL LIABILITIES, DAMAGES, JUDGMENTS, LOSSES, COSTS AND EXPENSES, INCLUDING ATTORNEYS FEES AND EXPENSES, INCURRED BY COOK MYOSITE OR ANY REPRESENTATIVE AS A RESULT OF ANY ACTION, CLAIM OR DEMAND BY ANY THIRD PARTY, INCLUDING BUYER'S INSURANCE CARRIER, THAT ARISES OUT OF OR RELATES TO COOK MYOSITE'S OR ANY OF ITS REPRESENTATIVE'S OR AGENT’S ACTS, OMISSIONS, DUTIES AND/OR OBLIGATIONS PURSUANT TO THESE TERMS AND CONDITIONS,

INCLUDING THE OPERATION OR NON-OPERATION OF THE MATERIALS OR THE NEGLIGENCE (EXCLUDING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OF COOK MYOSITE OR ANY REPRESENTATIVE, WHETHER BASED ON CONTRACT, TORT, WARRANTY, EQUITY OR ANY OTHER LEGAL THEORY.

All claims or suits against Cook MyoSite must be made within one (1) month of the date of receipt (regardless of when they were discovered) or be forever barred. Shortages or damages must be identified and signed for at the time of delivery.

XIV. No understanding, promise, representation, waiver, alteration, or modification purporting to change these Terms and Conditions shall be binding unless evidenced in writing, signed by the party to be bound, and, in the case of Cook MyoSite, approved by an authorized officer of Cook MyoSite.

XV. If Cook MyoSite shall waive any default by Buyer, it shall not be construed as a waiver of any subsequent default, and Cook MyoSite's failure to exercise any rights hereunder shall not be construed as a waiver of any default or be deemed to preclude or bar any claim for damages or other remedies at law or in equity unless specifically waived by Cook MyoSite in writing.

XVI. This Agreement will terminate as of the date set forth therein, unless terminated or extended through prior written agreement signed by the authorized representatives of the parties. Notwithstanding the expiration or termination of this Agreement for any reason, (a) any provision of this Agreement that imposes or contemplates continuing obligations to a Party shall survive the expiration or termination of this Agreement for any reason, including without limitation, Intellectual Property, Confidentiality, Representations and Warranties, Payment Terms, Limitations of Liability, Indemnification and Governing Law, venue and jurisdiction. Any outstanding payment shall be paid within thirty (30) business days of the termination date.

XVII. These Terms and Conditions shall be construed in accordance with the laws of the Commonwealth of Pennsylvania, without regard to its conflict of law principles. The Parties agree and acknowledge that any claim arising out of these Terms and Conditions shall be filed in the Court of Common Pleas of Allegheny County, Pennsylvania or in the Federal District Court for the Western District of Pennsylvania. Buyer consents to jurisdiction and venue in such courts and consents to service of process therein.

XVIII. If any of the terms or provisions of these Terms and Conditions shall be determined to be invalid or unenforceable, all of the remaining terms and provisions shall remain in full force and effect.

XIX. These terms and conditions contain the entire agreement between the parties with respect to the subject matter hereof, and supersede all previous negotiations, understandings, agreements, proposals, quotes or commitments, either oral or in writing.


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