General Terms and Conditions of Sale
These General Terms and Conditions of Sale (“General Terms”) and the Supplementary Terms and Conditions of Sale (“Supplementary Terms”) set forth the terms and conditions that apply to all sales of Goods (as defined below) and Services (as defined below) by means of a purchase order or any other written order or document (“PO“) received and accepted by Nicoya Lifesciences Inc. (“Nicoya Lifesciences”) or an affiliate to the entity identified in the PO as the buyer (“Buyer“). The terms and conditions included with Nicoya Lifesciences’ written quotation (if any) (“Quotation“) and acknowledgement of the PO or invoice with shipment (“Invoice“) are incorporated herein by reference, and such terms and conditions together with the General Terms and the Supplementary Terms are referred to herein as the “Agreement.” View additional Supplementary terms here.
This Agreement does not apply to Nicoya Lifesciences’ Nicosystem Software As A Service (“SaaS”) services which shall be governed by a separate Software As A Service Agreement entered into by and between Nicoya Lifesciences and Buyer. View additional information regarding Nicoya Lifesciences’ SaaS services here.
Nicoya Lifesciences reserves the right to change the General Terms and Supplemental Terms at any time. Any changes made will not apply to the Agreement between Nicoya Lifesciences and Buyer for any order received before the changes are made. The most recent revision date was completed as of February 24, 2023.
Nicoya Lifesciences shall provide its instruments including, consumables and related accessories and equipment (collectively, “Goods“) and its various training, servicing and extended warranty and other warranty plans (collectively, “Services”) in accordance with the terms and conditions of this Agreement. As used herein, “Instruments” means Alto, OpenSPR, OpenSPR-XT, and PLUM-HT Instruments, unless otherwise specified. All sales of Goods or Services between Nicoya Lifesciences and the Buyer are subject to the terms and conditions contained herein. By submitting a PO, or the commencement of the performance of Services by Nicoya Lifesciences, Buyer shall be bound by the provisions of this Agreement, regardless of whether Buyer acknowledges or otherwise signs this Agreement or the Invoice. This Agreement may not be added to, modified, superseded, or otherwise altered, except in a writing signed by an officer or other authorized representative of Nicoya Lifesciences. This Agreement supersedes the conflicting terms of any PO. Nicoya Lifesciences hereby expressly rejects the terms and conditions on any Buyer PO. Any terms in any other order, release, contract, or other communication that are additional to, different from, or inconsistent with the provisions of this Agreement will be deemed to be void and of no effect. Nicoya Lifesciences’ sale of its Goods and Services to Buyer is expressly made conditional on Buyer’s assent to these terms and conditions. Buyer understands and acknowledges that Nicoya Lifesciences would not consummate this sale without Buyer’s agreement to these terms and conditions and that Nicoya Lifesciences’ pricing of its Goods and Services is in reliance on these terms and conditions. Any supplemental terms, such as label licenses or field restrictions included with the sale of Goods or Services hereunder, shall be in addition to, and if in conflict, shall take precedence over the conflicting terms of this Agreement.
Nicoya Lifesciences may at any time make changes in the specifications, designs, drawings, samples, qualities, prices, terms, conditions, requirements or descriptions to which the Goods or Services are to conform. Nicoya Lifesciences shall not be bound by the descriptions or specifications of the Goods or Services, or any other information contained in, any advertisement, or publications of Nicoya Lifesciences.
All Goods shall be suitably packed in Nicoya Lifesciences’ standard shipment packaging, marked, and shipped in accordance with Nicoya Lifesciences’ applicable specifications (or if no specifications are provided, in accordance with reasonable commercial practices) using a carrier of Nicoya Lifesciences’ choice. Goods may be shipped, depending on lead time and availability, in installments. Each installment shall be invoiced and considered a separate sale. Buyer shall clear any imported Goods at the point of import and pay all relevant duties or import or brokerage fees.
Nicoya Lifesciences will use commercially reasonable efforts to make shipments on date(s) agreed by Nicoya Lifesciences. Shipments are made FCA (Incoterms 2020) Nicoya Lifesciences’ facility. All Goods shall be deemed to be delivered and risk of loss shall pass to Buyer at such time as Goods are loaded onto a transportation carrier vehicle. Buyer shall pay, and be exclusively liable for, all costs of shipping, delivery, and any related insurance. All claims by Buyer for damage, loss, or delays in transit shall be made by Buyer against the carrier, and Nicoya Lifesciences shall have no responsibility or obligations with respect to any such damage, loss, or delay. All shipments shall be at Buyer’s sole risk and expense. Buyer shall pay any increase in transportation costs that are charged to Nicoya Lifesciences subsequent to its invoice to Buyer, including any fuel surcharges.
Where Nicoya Lifesciences is to provide any services included on the Nicoya Lifesciences Quotation, including but not limited to installation, the Buyer shall be responsible at its own cost for making the place where the Goods will be located ready for installation. Following installation, Nicoya Lifesciences will proceed with final testing using Nicoya Lifesciences published specifications. Upon satisfactory completion of such final testing demonstrating compliance with the above specifications (with any permitted variations/tolerances) installation of the Goods shall be deemed complete and in compliance with Nicoya Lifesciences obligations within the Agreement.
Late Delivery or Performance Damages
Nicoya Lifesciences shall not be liable for any damages, loss, or penalty as a result of any delays in manufacturing or delivery of Goods or the performance of any Services.
Nicoya Lifesciences will not be liable for any delay or failure of performance, including for any delays or damage to Goods or Services resulting from extraordinary events beyond Nicoya Lifesciences’ reasonable control, such as (but not limited to) epidemics, pandemics, quarantines, flood, unusually severe weather, earthquake or other act of nature, power loss, war, riots, labor events, acts of State, an inability or delay in obtaining materials or any other acts of God. In the event of such delay or failure of performance, Nicoya Lifesciences shall have such additional time within which to perform its obligations hereunder as may be reasonably necessary under the circumstances.
Prices and Payment
All prices for the purchase of Goods or Services from Nicoya Lifesciences are in the currency stated on the Invoice and are exclusive of all taxes (including VAT), excises, duties, levies, or other government fees and freight and insurance. Buyer shall be liable for such taxes (including VAT), excises, duties, levies, or other government fees and freight and insurance and if Nicoya Lifesciences pays them they will appear as a separate item on Nicoya Lifesciences’ invoice. Unless agreed to in writing and signed by an officer or other authorized representative of Nicoya Lifesciences, Nicoya Lifesciences reserves the right to adjust pricing as it sees fit and does not offer any best price guarantees.
For any purchases of Goods that include an instrument, Buyer shall pay Nicoya Lifesciences the invoice price within thirty (30) days after the applicable Goods have been received.
For any purchases of Goods and Services that do not include an instrument (such as standalone reagent, consumable, sensor and training purchases), Buyer shall pay Nicoya Lifesciences one hundred percent (100%) of invoice price upon issuance of the PO. Goods will not be shipped and training will not be scheduled until payment is received. To avoid delays, customers are encouraged to complete these purchases with a credit card securely through the Nicoya Store.
Overdue Accounts/Late Charges
If Buyer fails to pay the price or any other payment due to Nicoya Lifesciences promptly and when due, Nicoya Lifesciences may require Buyer to pay, in addition to the price payment, interest thereon at a rate equal to the lesser of two percent (2%) per month and the maximum rate of interest allowable under applicable law, from the original due date until full payment has been made by Buyer or on Buyer’s behalf. This late fee is in addition to any other remedies Nicoya Lifesciences may have under applicable laws. The parties acknowledge and agree that this late fee is reasonable in the light of the anticipated or actual harm caused by the Buyer’s late payments to Nicoya Lifesciences, the difficulties of proof of loss, and the inconvenience or non-feasibility of Nicoya Lifesciences otherwise obtaining an adequate remedy. Nicoya Lifesciences may immediately stop any and all deliveries and/or shipments of Goods or Services to Buyer if Buyer is more than fifteen (15) days delinquent on its payments to Nicoya Lifesciences.
If Nicoya Lifesciences incurs any legal and/or collection agent costs in relation to Buyer’s overdue account, then Nicoya Lifesciences has the right to charge such costs to the Buyer’s account.
Use Restrictions; No Reverse Engineering. Buyer is not licensed to, and agrees not to: resell, transfer, or distribute any Nicoya Lifesciences supplied Goods, directly or indirectly, to any third party for any purpose or use, unless otherwise authorized by Nicoya Lifesciences in writing. Buyer also agrees not to re-export Goods from the country or region in which Goods were originally purchased. Buyer may not disassemble, re-assemble, design around or reverse engineer any Goods or decompile, copy, modify, enhance or otherwise change or supplement any software incorporated in the Goods (“Software“) without Nicoya Lifesciences’ prior written consent or permit any third party to do any of the foregoing.
“Intellectual Property” shall mean any and all intellectual property rights related to Goods and Services sold by Nicoya Lifesciences to Buyer, as they are now or may in future exist in any country or jurisdiction in the world, including without limitation: (a) any and all rights, privileges and priorities arising under the laws or treaties of Canada, any state, territory, or possession thereof, any other country or political subdivision or territory thereof, or the United States or European Community, relating to intellectual property, including patents, copyrights, trade names, trademarks, service marks, mask works, trade secrets, inventions, technical data, plans, drawings, flow diagrams, layout details, specifications, databases, names and logos, trade dress, technology, know-how, and other proprietary information and licenses from third persons granting the right to use any of the foregoing, including all registrations and applications for any of the foregoing that have been issued by or filed with the appropriate authorities, any common-law rights arising from the use of the foregoing, all rights of renewal, continuations, divisions, extensions, and the like regarding the foregoing and all claims, causes of action, or other rights arising out of or relating to any actual or threatened infringement by any person relating to the foregoing; (b) all computer applications, programs and other software, including without limitation operating software, network software, firmware, middleware, and design software, all design tools, systems documentation and instructions, databases, and related items; and (c) all cost information, sales and pricing data, customer prospect lists, supplier records, customer and supplier lists, customer and vendor data, correspondence and lists, product literature, artwork, design, development and manufacturing files, vendor and customer drawings, formulations and specifications, quality records and reports, and other books, records, studies, surveys, reports, plans, and documents.
As between Nicoya Lifesciences and Buyer, Nicoya Lifesciences solely and exclusively owns all rights, title and interests in and to the Intellectual Property. Unless otherwise expressly provided, Nicoya Lifesciences’ sale of Goods or Services to Buyer only grants Buyer a limited, non-exclusive, non-transferable, non-sublicensable right under Nicoya Lifesciences’ Intellectual Property to the extent necessary to use the Goods or Services purchased from Nicoya Lifesciences for Buyer’s internal purposes. No right to transfer, reverse engineer, decompile, disassemble, distribute, or resell Nicoya Lifesciences’ Goods or any of their components is conveyed expressly, by implication, or by estoppel. Unless expressly permitted in writing, Buyer will not modify, change, remove, cover or otherwise obscure any of Nicoya Lifesciences’ brands, trade or service marks on the Goods. Nothing in the Agreement limits Nicoya Lifesciences’ ability to enforce its Intellectual Property rights.
Buyer shall immediately notify Nicoya Lifesciences in writing of any third party intellectual property claim against Buyer in relation to the Goods or Services. In the event that Nicoya Lifesciences chooses to defend the claim, Buyer shall (a) not admit any liability or take any action in connection with the claim, (b) give Nicoya Lifesciences sole control of the defense or settlement of any such claim, and (c) provide reasonable information and assistance in such defense. If Nicoya Lifesciences concludes that the Goods or Services infringe the intellectual property rights of a third party, Nicoya Lifesciences may in its sole discretion (a) secure the right for Buyer to continue use of the Goods or Services, (b) replace the Goods or Services with similar Goods or Services that do not infringe, or (c) require Buyer to return the Goods or Services and provide Buyer with a refund of the purchase price, with a reasonable deduction for the Goods’ use, damage, and obsolescence.
Nicoya Lifesciences shall have no responsibility under the Section entitled “Limited Warranty” or the immediately preceding paragraph to the extent the Goods or Services (a) are supplied according to Buyer’s design or instructions, (b) are modified by Buyer after delivery, (c) are combined with other devices, methods, systems or processes not furnished by Nicoya Lifesciences without its written consent, or (d) are not used in conformity with Nicoya Lifesciences written instructions.
Nicoya Lifesciences may enforce this paragraph through any and all legal action, including, but not limited to, injunctive and other equitable relief.
The Software may contain software, content, data, or other materials, including related documentation, that are owned by parties other than Nicoya Lifesciences and are provided to Buyer on terms that are in addition to or different from those contained in this Agreement (“Third Party Licenses“). Buyer is bound by and will comply with all Third Party Licenses and any breach of any Third Party License shall be a breach of this Agreement. The use of Software and any related documentation provided to Buyer under this Agreement is solely for Buyer’s internal purposes and solely on hardware provided by Nicoya Lifesciences. Buyer acknowledges and agrees that the Software and related documentation is provided under Third Party Licenses, and not sold, to Buyer. Buyer does not acquire any ownership interest in Software and related documentation under this Agreement. Buyer shall only use Software solely as set forth in the documentation provided by Nicoya Lifesciences and this Agreement.
Buyer is responsible and liable for all uses of the Software and the documentation provided by Nicoya Lifesciences. Nicoya Lifesciences may, at its sole discretion, terminate this license if Buyer fails to comply with any term or condition herein. Buyer shall, upon termination of this license, immediately cease use of and return to Nicoya Lifesciences all Software and any components thereof (including any application programming interfaces) and related documentation to include all copies.
The warranty and indemnification provisions set forth in this Agreement will not apply to third party owned Software products provided to Buyer.
All non-public, confidential or proprietary information of Nicoya Lifesciences, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Nicoya Lifesciences to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Nicoya Lifesciences in writing. Upon Nicoya Lifesciences request, Buyer shall promptly return all documents and other materials received from Nicoya Lifesciences. Nicoya Lifesciences shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that : (a) is or later becomes generally available to the public by use, publication or the like, through no fault of Buyer; (b) is in Buyer’s prior possession without obligation of confidentiality, as evidenced by Buyer’s competent written records; or (c) is obtained from a third party who had the legal right to disclose such Confidential Information to Buyer without obligation of confidentiality.
In the event that the Buyer is requested pursuant to, or required by, applicable law, regulation or legal process to disclose any Confidential Information, Buyer will notify Nicoya Lifesciences promptly so that Nicoya Lifesciences may seek a protective order or other appropriate remedy. Buyer will reasonably cooperate with Nicoya Lifesciences in its efforts to seek such protective order or other appropriate remedy and will limit disclosure of such Confidential Information to only that portion of the Confidential Information which is required to be disclosed. Any Confidential Information disclosed pursuant to this paragraph shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure.
Indemnification, Release, Waiver and Hold Harmless
BUYER RELEASES, RELINQUISHES AND DISCHARGES AND AGREES TO INDEMNIFY, PROTECT, AND SAVE HARMLESS NICOYA LIFESCIENCES, ITS AGENTS, OFFICERS, EMPLOYEES, SUBSIDIARIES AND AFFILIATES FROM ALL CLAIMS, DEMANDS, AND CAUSES OF ACTION OF EVERY KIND AND CHARACTER INCLUDING THE COST OF DEFENSE THEREOF, FOR ANY INJURY TO, INCLUDING DEATH OF PERSONS (WHETHER THEY BE THIRD PERSONS, CONTRACTORS, OR EMPLOYEES OF EITHER OF THE PARTIES HERETO) AND ANY LOSS OF OR DAMAGES TO PROPERTY (WHETHER THE SAME BE THAT OF EITHER OF THE PARTIES HERETO OR THIRD PARTIES) CAUSED BY OR ALLEGED TO BE CAUSED, ARISING OUT OF, OR IN CONNECTION WITH ANY USE OF GOODS OR SERVICES BY BUYER, ITS AGENTS, OFFICERS, EMPLOYEES, SUBSIDIARIES, AND AFFILIATES THAT IS INCONSISTENT WITH NICOYA LIFESCIENCES’ INSTRUCTIONS AND SPECIFICATIONS REGARDING SUCH GOODS OR SERVICES OR ANY OTHER MISUSE OR ABUSE OF SUCH GOODS OR SERVICES. BUYER FURTHER AGREES TO DEFEND ANY SUIT OR ACTION COVERED BY THIS PARAGRAPH BROUGHT AGAINST NICOYA LIFESCIENCES, ITS AGENTS, OFFICERS, EMPLOYEES, SUBSIDIARIES, AND AFFILIATES, FOR ANY ALLEGED LOSS, DAMAGE, INJURY TO, OR DEATH OF, PERSONS OR PROPERTY LOSS OR PATENT OR TRADEMARK INFRINGEMENT AND TO PAY ALL DAMAGES, COSTS, AND EXPENSES, INCLUDING ATTORNEY’S FEES ARISING OUT OF, OR IN CONNECTION WITH ANY USE OF GOODS OR SERVICES BY BUYER, ITS AGENTS, OFFICERS, EMPLOYEES, SUBSIDIARIES, AND AFFILIATES THAT IS INCONSISTENT WITH NICOYA LIFESCIENCES’ INSTRUCTIONS AND SPECIFICATIONS REGARDING SUCH GOODS OR SERVICES OR ANY OTHER MISUSE OR ABUSE OF SUCH GOODS OR SERVICES.
Nicoya Lifesciences reserves the right to assign all or part of this Agreement, and/or the ability to fulfill any other agreements between Nicoya Lifesciences and Buyer, to any of its subsidiaries and/or affiliates as it sees fit, without notice to Buyer. No right or interest in this contract may be assigned by Buyer without the prior written consent of Nicoya Lifesciences. Any attempted delegation of performance by Buyer without prior written consent of Nicoya Lifesciences will be void and ineffective for all purposes. Any Assignee must be approved at the sole discretion of Nicoya Lifesciences prior to Assignment of all or part of this Agreement.
The warranty provided hereunder applies only to the Buyer. No third party claims will be honored. Except as specified below, instruments and other non-consumable Goods sold hereunder shall be free from defects in materials and workmanship and shall conform to Nicoya Lifesciences’ published specifications for twelve (12) months from the date of shipment or its useful life, whichever is less (“Warranty Period“). If Nicoya Lifesciences receives notice of defects during the Warranty Period, Nicoya Lifesciences shall, at its sole discretion, either repair or replace such nonconforming Goods or credit or refund the purchase price of the nonconforming Goods, in each case, which prove to be defective and not caused by the exclusions stated in the “Warranty Exclusions” below. A Buyer credit for or refund of the purchase price of a nonconforming instrument or other non-consumable Goods will be subject to the following return procedures: (1) Nicoya Lifesciences has received Buyer’s request for an Return Merchandise Authorization (“RMA”) for the return of nonconforming product; (2) Nicoya Lifesciences has issued Buyer an RMA; (3) Buyer has returned the nonconforming product to Nicoya Lifesciences in accordance with Nicoya Lifesciences’ return procedures; and (4) Nicoya Lifesciences has determined that the product is nonconforming and such nonconformity is not the result of improper installation, repair, or other misuse.
Consumable Goods (e.g., reagents) are warranted for the stated recommended shelf life of such Goods.
Buyer agrees to provide full access to its premises for the purpose of repair, and guarantees that all instruments and work areas that are in contact with biohazardous or hazardous materials are decontaminated prior to service or return of Goods to Nicoya Lifesciences for service.
Extension of the Limited Warranty for twelve (12) month increments after expiration of the Limited Warranty, available only for OpenSPR and OpenSPR-XT instruments. Additional Alto warranty options are included in the Supplementary Terms.
Unless otherwise required by law, the warranties provided above do not include/apply to:
Damages caused by normal wear and tear, spillage, improper use, storage or handling, or neglect;
Damages caused by accident and disaster which include, but are limited to, fire, flood, water, wind, and electrical surge;
Goods which have been repaired, altered or modified in any way or parts have been replaced by anyone other than those employed by Nicoya Lifesciences without the prior written consent of Nicoya Lifesciences;
Any Goods sold as refurbished, reconditioned or used;
Any Goods designated by Nicoya Lifesciences as being in contact with sample or reagent streams or as consumable items which are subject to normal wear and tear and should be replaced by Buyer in the normal course;
Any Goods sold through an unauthorized reseller;
Any Goods used in a country or associated region different from the country or associated region in which the Goods were sold to Buyer; and
Any Goods not used in accordance with Nicoya Lifesciences’ published documentation.
Non Nicoya Lifesciences products supplied may carry the warranty of the supplier or manufacturer and Nicoya Lifesciences makes no claims regarding support of those products but will make reasonable attempts to transfer the warranty (if any) to Buyer.
Disclaimer of Warranties and Limitation of Liability
THE FOREGOING WARRANTY AND REMEDIES ARE THE SOLE AND EXCLUSIVE WARRANTIES WITH RESPECT TO NICOYA LIFESCIENCES’ GOODS AND SERVICES AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NICOYA LIFESCIENCES HEREBY DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, EXPRESSED, IMPLIED, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS (WHETHER ARISING FROM STATUTE, OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING, OR USAGE OF TRADE). THIS WARRANTY IS NOT TRANSFERABLE FROM THE ORIGINAL BUYER TO A SUBSEQUENT OWNER. FURTHER, NICOYA LIFESCIENCES IS NOT LIABLE IN CASES OF DELIBERATE, NEGLIGENT OR ACCIDENTAL MISUSE OF THE GOODS OR SERVICES, USE WITH INAPPROPRIATE REAGENTS OR CONSUMABLES, DAMAGE CAUSED BY DISASTER, REPAIR OR MODIFICATIONS DONE BY ANYONE OTHER THAN NICOYA LIFESCIENCES. NICOYA LIFESCIENCES DOES NOT WARRANT THAT THE GOODS OR SERVICES WILL NOT INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY EITHER ALONE OR IN COMBINATION WITH OTHER PRODUCTS OR IN THE OPERATION OF ANY PROCESS. NICOYA LIFESCIENCES DOES NOT ASSUME OR AUTHORIZE ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH ITS GOODS OR SERVICES. IN NO EVENT SHALL NICOYA LIFESCIENCES BE LIABLE TO BUYER, OR ANY SUBSEQUENT PURCHASER OF ANY GOODS OR SERVICES FURNISHED TO BUYER, INCLUDING THE ULTIMATE END-USER, IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), WARRANTY, STRICT LIABILITY, OR OTHERWISE FOR ANY SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, THE COST OF LABOR, REQUALIFICATION, DELAY, BUSINESS INTERRUPTION, COSTS FOR THE PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR LOSS OF PROFITS, SAVINGS, DATA, USE OR GOOD WILL, EVEN IF THE EXCLUSIVE REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE AND EVEN IF NICOYA LIFESCIENCES IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Buyer’s Exclusive Remedy
THE SOLE AND EXCLUSIVE REMEDY OF BUYER IS THE REPAIR OR REPLACEMENT OF NONCONFORMING GOODS OR SERVICES OR THE ISSUANCE TO BUYER OF CREDIT OR REFUND FOR THE PURCHASE PRICE OF THE NONCONFORMING GOODS OR SERVICES, AT NICOYA LIFESCIENCES’ DISCRETION. IN THE EVENT OF BREACH OR REPUDIATION OF THE CONTRACT BY NICOYA LIFESCIENCES, BUYER SHALL NOT BE ENTITLED TO ANY CONSEQUENTIAL OR EXEMPLARY DAMAGES. IT IS THE INTENT OF THE PARTIES THAT THIS REMEDY PROVIDED HEREIN IS THE SOLE REMEDY AVAILABLE TO BUYER AND IS NOT CUMULATIVE OF THOSE PROVIDED BY COMMON LAW OR STATUTE. IN NO EVENT SHALL NICOYA LIFESCIENCES BE LIABLE TO BUYER, ITS AGENTS, OFFICERS, EMPLOYEES, SUBSIDIARIES, OR AFFILIATES FOR MORE THAN THE APPLICABLE ANNUAL SERVICE FEES OR PURCHASE PRICE OF THE GOODS OR SERVICES SOLD BY NICOYA LIFESCIENCES TO BUYER. BUYER UNDERSTANDS AND ACKNOWLEDGES THAT NICOYA LIFESCIENCES RELIED ON THIS PROVISION IN PRICING ITS GOODS AND SERVICES.
Applicable Laws and Forum Selection
This Agreement and any action related thereto will be governed and construed by the laws of the Province of Ontario in Canada, except that conflict of law rules shall be disregarded. Furthermore, the exclusive venue for resolving any dispute action, proceeding or claim arising from or relating to this Agreement between the parties shall lie in Ontario, Canada.
The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. This choice of jurisdiction above does not prevent Nicoya Lifesciences from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations of this Agreement in any appropriate jurisdiction.
Relationship of the Parties
The relationship between Buyer and Nicoya Lifesciences is that of buyer and seller, as independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between Nicoya Lifesciences and Buyer, and neither Buyer nor Nicoya Lifesciences shall have the authority to contract for or bind the other party in any manner whatsoever.
No Third-Party Beneficiaries
This Agreement is for the sole benefit of Buyer and Nicoya Lifesciences and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever hereunder.
The unenforceability or invalidity of any provision of this Agreement shall not affect the enforceability or validity of any other provision herein, and the invalidity or unenforceability of any provision to any specific person or circumstance shall not affect the enforceability or validity of such provision as it may apply to other persons or circumstances. However, such a term or clause may be revised to the extent required according to the opinion of the court to render the Agreement enforceable or valid, and the rights and responsibilities of the parties shall be interpreted and enforced accordingly, so as to preserve their agreement and intent to the fullest possible extent.
All payments due by Buyer to Nicoya Lifesciences under any sale between the parties are to be made by Buyer without offset or other reduction.
Survival of Terms
Except as otherwise contemplated by this Agreement, all covenants and agreements of the parties contained herein shall survive the delivery and acceptance date.
Buyer shall not have the right of cancellation, except upon the written consent of Nicoya Lifesciences. When cancellation is accepted, Nicoya Lifesciences reserves the right to make a cancellation charge of up to 25% of the price for said product.
Buyer hereby agrees to reimburse Nicoya Lifesciences for all costs and expenses (including reasonable attorney’s fees) incurred by Nicoya Lifesciences in connection with any legal proceeding commenced hereunder or otherwise arising out of this Agreement for recovery of Goods or Services sold or for collection of monies due hereunder.
Remedies; No Waiver
The remedies herein shall be cumulative and in addition to any other or further remedies provided in law or equity. Buyer consents to injunctive and other equitable interim or permanent relief as may be requested by Nicoya Lifesciences without a requirement to post a bond or other security and awarded by a court. Nicoya Lifesciences’ forbearance or failure to exercise, at any time, any of its rights and/or remedies herein shall not be deemed a subsequent waiver thereof nor a waiver of any other right or remedy contained herein. No waiver or breach of any provision of this Agreement shall constitute a waiver of any other provision or breach.
All legal notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice“) shall be in writing and addressed to the parties at the addresses set forth on the face of the Invoice and in the case of Nicoya Lifesciences with copy to its corporate headquarters at B-29 King St. E, N2G 2K4 Kitchener, Ontario, Canada, Attention: Devon Briggs. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), 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 (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
No waiver or breach of any provision of this Agreement shall constitute a waiver of any other provision or breach. No waiver, consent, modification, amendment or changes to the terms of the Agreement will be binding unless in writing and signed by both Nicoya Lifesciences and Buyer.
The headings herein are for convenience only and do not define or limit the provisions hereof.
Compliance with Laws
Buyer shall comply with all applicable country, state, and local laws and regulations including but not limited to laws and regulations governing the manufacture, processing, distribution, transportation, labeling, handling, discharge, treatment, storage, installation, disposal, recycling, reclamation, use, exporting, importing, or other activity relating to the Goods or Services sold hereunder. Buyer shall have the sole responsibility to obtain any transportation, storage, use, or other licenses required under applicable laws and regulations.
This Agreement sets forth the entire agreement between Buyer and Nicoya Lifesciences with respect to the subject matter hereof and supersedes any and all prior and contemporaneous writings, communications, agreements and understandings relating to the same subject matter.
Buyer shall have the sole responsibility at its expense to obtain any and all export or import licenses or permits required under applicable laws and regulations.
The Goods and Services are subject to, Canada, United States, European Union and local export-control laws and regulations. Buyer may not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any Goods or Services to any destination, entity, or person prohibited by Canada, United States, European Union or local laws or regulations.
If Nicoya Lifesciences believes that Buyer is purchasing Goods or Services other than for its own account without Nicoya Lifesciences’ prior written consent, Nicoya Lifesciences reserves the right to cancel any PO and withhold delivery of any Goods.