Cook MyoSite - Terms and Conditions of Sale and Delivery

Effective September 27, 2021

Thank you for your interest in Cook Myosite. We value our relationships with the scientific community, and our goal is to make your purchasing experience as straightforward and easy as possible. If you have any questions or concerns about our quotation process, sales order process, or these Terms and Conditions of Sale and Delivery (collectively, “Terms”), please contact Customer Service at researchsales@cookmyosite.com. Your Organization’s Purchase Order will manifest your agreement to the Terms. Our provision and/or sale of the services and Materials(s) will manifest our agreement to the Terms.

Definitions:

  1. The term “Commercial Purposes” includes, but is not limited to, use of Materials, either modified or unmodified, to provide a service or product for a fee or other consideration from a person or entity other than those internal to your Organization.
  2. “Company” includes, collectively, Cook Medical Holdings LLC, those companies owned directly or indirectly by itself and those owned directly or indirectly by Cook Group Incorporated.
  3. “Confidential Information” includes, but is not limited to, information relating to or arising from the scientific aims, processes and know-how, instructions, technical data, specifications, trade secrets, business information or other information disclosed or developed by Cook MyoSite that is not publicly available.
  4. “Laws, Rules, and Regulations” refers to applicable laws, statutes, regulations, judicial or administrative law decisions, agency pronouncements or enforcement activities of the United States and the country, state, or territory having competent jurisdiction over the location where your use of the Materials is performed.
  5. The term “Materials” includes, but is not limited to, components, biological products, reagents, media and any other laboratory research materials developed by Cook MyoSite.
  6. “Purchase Order” refers to a Buyer-generated document having a unique number assigned by you that authorizes a purchase transaction. Purchase Orders include the following items:
    1. Cook MyoSite item code and description of Materials
    2. Quantity requested of each Cook MyoSite item code
    3. Agreed upon Reimbursement for Services
    4. End-user contact information including the specific shipping address to the location where the Materials are to be delivered
    5. Quote number (if applicable) and
    6. Purchase Order Number (to appear on all correspondence, shipping labels, invoices, and shipping documents.)
  7. “Purchase Price” or “Reimbursement” may refer to, interchangeably, the payment due to Cook for your Organization’s procurement of Materials and services.
  8. “Quote” means Cook MyoSite’s specified Reimbursement for each order.
  9. The words “we,” “us,” and “our,” whether capitalized or not, refer to Cook MyoSite, Inc., an Indiana corporation. Cook MyoSite, Inc. is also referred to as “Seller” and “Cook MyoSite.”
  10. The words “You” and “Your,” whether capitalized or not, refer to and include the “Organization” and “Contracted Users.” “Contracted Users” include the Organization’s researchers, researchers’ laboratories, and further, without limitation, the Organization’s employees, agents, contractors, subcontractors, and other personnel who may have access to the Materials. The Organization must ensure that all Contracted Users are legally bound to adhere to these Terms and Laws, Rules and Regulations and will abide by them. Your Organization agrees and understands that Contracted Users shall be the Organization’s responsibility and that use of Contracted User(s) shall not relieve Organization of any of its obligations hereunder. The Organization is solely responsible for the use of Materials. “Organization” means the entity (e.g., university, company, independent laboratory) that purchases the Material(s). The Organization may also be referred to herein as “Buyer”.

Payment. Unless otherwise agreed to by Cook MyoSite, Payment will be net thirty (30) calendar days from the date of Cook MyoSite's invoice. No payment or monies paid to Cook MyoSite will be revocable.

Representations and Warranties:

You understand and agree that Materials are for research use only.

You agree that you will not:

  1. resell the Materials
  2. provide the Materials to a third party without Cook MyoSite’s authorized representative’s prior written consent
  3. use the Materials for Commercial Purposes
  4. reproduce cell products or their components indefinitely via immortalization

You agree that you will:

  1. use the products for your internal research purposes only
  2. use Materials in compliance with all Laws, Rules, and Regulations
  3. use the Materials with prudence and appropriate caution in any experimental work. You acknowledge that the Material may contain hazardous substances or properties in an inapparent state.
  4. use the Materials in accordance with any Cook MyoSite requirements (if applicable).

You understand and agree that the Materials have not been approved for human or veterinary use and that you will not use the Materials in humans or in other direct applications to human bodies. You further agree that you will not use the Materials for: (i) in vitro diagnostics, (ii) in vivo testing in human subjects or animals or (iii) any form of therapeutic or diagnostic purposes.

Shipping. All Materials shall be shipped to you EXW (from our Cook Myosite Facility) per INCOTERMS 2020. Cook MyoSite will be responsible for arrangements up to the point that the Materials are delivered to the carrier. Your Organization will be responsible for and pay all packing, shipping, freight, insurance charges, and import/ export costs thereafter, unless otherwise agreed to by the parties. Organization shall assume full responsibility for the inspection of all shipments within the same day of receipt. Organization must notify Cook MyoSite in writing of any failure to conform to specifications of the of the Materials immediately upon receipt. To reasonably cure any such failure, Cook MyoSite requires immediate notice to accommodate the cold chain packaging.

With the submission of a request for Materials, you must provide all applicable information that will enable Cook MyoSite to contact you including without limitation the name of the agent or your employee responsible for coordinating the shipment along with his/her cellular and landline telephone numbers, postal address and email address. Please also provide the delivery site address. Please include the contact information for at least two of your agents and/or employees in case one representative is unavailable.

You acknowledge that you are solely responsible for securing all permits, licenses, and other approvals from governmental officials and authorities that are necessary for Cook MyoSite to provide the Materials to you. The Organization is solely responsible for the delay of shipment(s) caused by the failure to obtain such documents.

Intellectual Property. Nothing contained herein shall affect the pre-existing intellectual property rights of either Party.

Confidentiality. You agree to safeguard all Confidential Information and acknowledge that Cook Myosite retains title to such Confidential Information.

Events beyond our Reasonable Control. Cook MyoSite will not be liable for any failure to deliver any of the Materials due to causes beyond its control. Such causes may include, but are not limited to, natural catastrophes, governmental acts or omissions, any act of God, epidemic, civil unrest, breakdown of communication, manufacturing or internet functionality, changes in laws, regulations, customs, duties or surcharges, any interruption in the manufacture or supply of components, raw materials or other materials by Cook MyoSite suppliers. In the event of failure to deliver due to causes beyond Cook MyoSite’s control, Cook MyoSite shall have the right to cancel active purchase orders.

Additional Binding Terms:

Indemnification. Your Organization agrees to defend, indemnify and hold harmless Company and, without limitation, its members, agents, employees, and representatives, from any repercussions including without limitation any claims, losses, damages, liabilities or expenses including reasonable attorneys’ fees and expenses (collectively referred to herein as the “Claims”) arising out of or resulting from: (i) any personal injury or property damage arising out of your, your Organization’s and/or Contracted Users’ (collectively referred to herein as “Applicable Parties”) use of Materials; (ii) Applicable Parties’ violation of Laws, Rules and Regulations; (iii) any third-party claims including but not limited to those Claims by Contracted Users; (iv) Claims related to infringement, misappropriation, or violation of any patent, trademark, trade secret, copyright, or other intellectual property or proprietary right; (v) Applicable Parties’ negligence or misconduct; (vi) anything done or omitted by Applicable Parties in the execution and performance of this Agreement (vii) Applicable Parties’ use of Materials that is inconsistent with Applicable Parties’ obligations set forth in these Terms and those obligations communicated by Cook MyoSite.

Limit 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, COMPANY’S MAXIMUM LIABILITY WILL BE THE AMOUNT PAID FOR MATERIAL(S). COMPANY EXPRESSLY DENIES ALL LIABILITY FOR ANY OTHER LOSS OR DAMAGE WHICH MAY OCCUR PRIOR TO, AT, OR AFTER PURCHASE OF MATERIALS AND/OR SERVICES. 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. YOU UNDERSTAND THAT COMPANY IS NOT AN INSURER. YOU ARE RESPONSIBLE FOR OBTAINING ALL INSURANCE YOU DEEM NECESSARY, INCLUDING COVERAGE FOR PERSONAL INJURY AND PROPERTY DAMAGE. COOK MYOSITE DOES NOT GUARANTY THAT THE MATERIALS WILL PREVENT PERSONAL INJURY OR ANY DAMAGE TO YOU, YOUR SITE(S), OR RELATED INTERESTED PARTIES.

Governing Law. The Terms shall be interpreted, construed, and enforced in accordance with and governed by U.S. law and Indiana law without regard to principles of conflicts of law. Any dispute arising under these Terms shall be resolved exclusively by state courts situated in Monroe County, Indiana, or federal courts situated in the Southern District of Indiana, and the parties hereby agree that these courts shall have exclusive jurisdiction over the subject matter of any such dispute and further agree that these courts shall have jurisdiction over their person for the purpose of hearing and deciding any such dispute.

Miscellaneous. No understanding, promise, representation, waiver, alteration, or modification purporting to change the Terms shall be binding unless evidenced in writing and signed by your and our authorized representatives. If Cook MyoSite shall waive any default by you, it shall not be construed as a waiver of any subsequent default. 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. If any part of the Terms is determined to be invalid or unenforceable, all of the remaining terms and provisions shall remain in full force and effect. Cook Medical Holdings, those companies owned directly or indirectly by it and those owned directly or indirectly by Cook Group Incorporated are deemed third-party beneficiaries to this Agreement and are entitled to the rights and benefits hereunder and may enforce the provisions hereof as if they were a party hereto.

Entire Agreement. These Terms 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. In the event of any subsequent documentation issued by or on behalf of you, these Terms shall control.