1. Scope and Exclusivity. These Standard Terms and Conditions apply to every shipment and sale and/or license of products and services (“Products”) directly from Alpha Innotech Corp. or its subsidiary (“Alpha Innotech”) to an end-user customer (“Customer”) in the United States. Any additional or different terms proposed by Customer are objected to and will not be binding upon Alpha Innotech unless specifically agreed to in writing by Alpha Innotech. These Standard Terms and Conditions, along with Component Limited Warranty, the Software License, and the quotation or proposal issued by Alpha Innotech to Customer in connection with the sale and/or license of Products to Customer (“Quote”) or any future quotation of Alpha Innotech referring to these Standard Terms and Conditions, comprise the “Agreement Documents”.
2. Purchase and Payment. Customer agrees to buy and/or license the Products for the price shown in the Quote. A restocking fee equal to 15% of the price shown in the Quote will be charged on all cancelled orders or items returned within15 days of receipt of delivery. No returns after 15 days. Except as otherwise set forth in the Quote, Customer will be invoiced for Products at the time of shipment, and payment shall be made in full within 30 days of the date of any invoice. Late payments shall incur a charge at the rate of 1.5% per month, or the maximum allowed by law, if less, until paid in full. All payments shall be in United States dollars in immediately available funds by wire transfer, by check, or by VISA, MasterCard or Discover card. In limited circumstances, at Alpha Innotech’s sole discretion, payments may be made by letter of credit; additional charges will apply.
3. Delivery. Alpha Innotech may prepay and invoice Customer for shipping, handling and insurance. However, when Products are loaded onto a carrier at Alpha Innotech’s facilities, (a) risk of loss or damage to the Products shall pass to the Customer, and (b) except for title to the Software, which shall remain with Alpha Innotech at all times, title to the Products shall pass to Customer. It is Customer’s responsibility to indicate on the shipping receipt if packaging is damaged, and to take pictures of any shipping damage to the Product. Unless Alpha Innotech receives specific shipping instructions from Customer, Alpha Innotech may exercise its discretion in selecting the method of shipment and the carrier. Time is not of the essence for Alpha Innotech’s obligations herein. All shipping and delivery dates are approximate and Alpha Innotech will use commercially reasonable efforts to meet such dates. Alpha Innotech or its representative may make partial deliveries.
4. Installation and Initial Training. Customer will be required to complete any necessary site preparations at its cost prior to installation. For Customers in the United States, Alpha Innotech representatives will then install the Products (NovaRay®, AlphaScan®, FluorChem®, or AlphaImager® only) at Customer’s location and provide initial training regarding Product use. Customer will then signify acceptance by signing the customer installation and initial training acceptance form.
5. Export and Customs. All shipments shall be subject to the export control laws and other laws and regulations of the United States. Customer shall not take any action, or fail to take any required action, which would cause Customer or Alpha Innotech to violate the Foreign Corrupt Practices Act, the United States Export Administration Regulations, or other applicable law. Customer shall obtain and maintain any required import license or destination governmental authorization.
6. Limited Warranty.
6.1 Components. Alpha Innotech warrants its imaging and scanning system components, including cabinets, cameras, illuminators and printers (individually and collectively “Components”) to be free from defects of material and workmanship for a period of one year from the date of purchase (“Standard Package”). At the time of purchase, Customer may purchase an additional 2 year warranty period (3 years total) for an additional charge (“Premium Package”). Subject to additional terms and conditions, if the Components are still within the 1 or 3 year warranty period, Customer may purchase additional 1 year warranty period extensions; call customer service for details.
This warranty does not include damage to the Components resulting from acts of God, misuse, neglect, improper operation, unauthorized repair, or alterations. Customer must notify Alpha Innotech of any defect, malfunction or nonconformity promptly upon discovery. Within 30 days after receiving such notice from Customer, Alpha Innotech will either repair or replace the Component or its parts at Alpha Innotech’s option. All expenses related to repairing or replacing defective Components or parts under this warranty will be assumed by Alpha Innotech except for Customer’s cost of transporting the Component to our service center. A return authorization number must be obtained from Alpha Innotech prior to returning any item for warranty repair or replacement.
6.2 Software. Alpha Innotech warrants that, for a period of 90 days from the date of delivery of the AlphaEase® or ArrayEase® software programs (“Software”) to Customer, the Software will perform in all material respects in accordance with the accompanying user manual, and the media on which the Software resides will be free from defects in materials and workmanship under normal use. Alpha Innotech does not warrant that the functions contained in the Software will meet Customer requirements, or that the operation of the Software will be error free or uninterrupted.
6.3 Computers are separately warranted by Dell for a period of 3 years, beginning from the date the computer was purchased from Dell, not the date Customer purchases it from Alpha Innotech. The limited warranties applicable to Dell-branded Product can be found at http://www.dell.com/policy/legal/warranty.htm or in the documentation Dell provides with the Product.
6.4. EXCEPT AND TO THE EXTENT EXPRESSLY PROVIDED ABOVE, THE COMPONENTS AND SOFTWARE ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITHOUT LIMITATION, TO THE FULLEST EXTENT ALLOWABLE BY LAW AND NO WARRANTIES ARE MADE OF MERCHANTABLE QUALITY, OF NON-INFRINGEMENT, OF FITNESS FOR A PARTICULAR PURPOSE OR FROM A COURSE OF DEALING OR USAGE OF TRADE. CUSTOMER MUST NOTIFY ALPHA INNOTECH IN WRITING OF ANY LIMITED WARRANTY CLAIMS WITHIN THE LIMITED WARRANTY PERIOD.
7. Limitation of Liability. alpha innotech’S entire liability and CUSTOMER’S exclusive remedy UNDER THE LIMITED WARRANTY PROVISION shall be, at alpha innotech’s option, either (a) return of the price paid FOR THE COMPONENTS OR SOFTWARE, or (b) repair or replacement of the PORTIONS OF THE COMPONENTS OR Software that do not COMPLY WITH alpha innotech’s limited warranty. THE AGGREGATE LIABILITY OF ALPHA INNOTECH, IF ANY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, IS LIMITED TO DIRECT MONEY DAMAGES NOT TO EXCEED THE TOTAL OF PRIOR PAYMENTS MADE TO ALPHA INNOTECH BY CUSTOMER FOR THE COMPONENTS OR SOFTWARE, OR, AT ALPHA INNOTECH’S DISCRETION, TO REPLACEMENT OF THE COMPONENTS OR SOFTWARE OR EQUITABLE ADJUSTMENT OF THE PAYMENTS. IN NO EVENT SHALL ALPHA INNOTECH BE LIABLE UNDER ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, EVEN IF ALPHA INNOTECH HAS BEEN ADVISED OF THE POSSIBILITY THEREOF INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST BUSINESS REVENUE, OTHER ECONOMIC LOSS OR ANY LOSS OF RECORDED DATA ARISING OUT OF THE USE OF OR INABILITY TO USE THE COMPONENTS OR SOFTWARE.
8. Intellectual Property.
8.1 Customer acknowledges (a) certain of the Products and their use are protected by the United States patent numbers 6,271,042 and 6,909,459 and other patent applications pending; (b) the Software and user manuals, training materials, and operating materials, if any, in printed or electronic form, Alpha Innotech provides to Customer are protected by copyright; and (c) the Products comprise other protected trade secrets and proprietary information.
8.2 Customer shall not duplicate, reverse engineer, decompile, disassemble, or create derivative works of the Components, Software or Products.
8.3 Software, and third party software, such as ArrayVision® array analysis software by GE Healthcare, is licensed, not sold, to the Customer, and is subject to additional terms and conditions shipped along with such Software or third party software. Customer agrees to abide by such additional terms and conditions.
8.4 Alpha Innotech is not licensed under any patents owned by Oxford Gene Technology Limited (“OGT”), covering oligonucleotide arrays and methods of using them to analyze polynucleotides. The purchase of Alpha Innotech’s products does not convey any license under any of OGT’s patent rights, including any right to make or use oligonucleotides under OGT’s patents. Customer may use Alpha Innotech’s products to analyze oligonucleotide arrays according to OGT’s patented methods if those arrays have either been purchased from OGT’s licensed suppliers, or have been made by Customer under a license from OGT. Please contact OGT to enquire about a license under OGT’s patents at licensing@ogt.co.uk
9. Miscellaneous.
9.1 Customer acknowledges Products are intended for research purposes only.
9.2 Governing Law shall be the state of California, without regard to conflicts of laws provisions. The parties hereby submit to the personal jurisdiction of, and agree that any legal proceeding with respect to or arising out of the Agreement Documents will be brought in the United States District Court for the Northern District of California or the Superior Court of the State of California for the County of Alameda.
9.3 Any remedy provided for in the Agreement Documents is deemed cumulative with, and not exclusive of, any other remedy provided for in the Agreement Documents or otherwise available at law or equity. The exercise by a party of any remedy will not preclude the exercise by such party of any other remedy. Should suit be brought to enforce or interpret any part of the Agreement Documents, the prevailing party will be entitled to recover, as an element of the costs of suit and not as damages, reasonable attorney fees to be fixed by the court, including without limitation, the costs, expenses and fees of any appeal.
9.4 If any provision of the Agreement Documents is determined to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement Documents will otherwise remain in full force and effect and enforceable.
9.5 Any waivers or amendments will be effective only if made in writing and signed by a representative of the respective parties authorized to bind the Parties. No failure to exercise, and no delay in exercising, on the part of either party, any privilege, any power or any rights hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder.
9.6 No provision of the Agreement Documents shall be construed to constitute either party as the agent, servant, employee, partner, or joint venturer of the other party. The Parties are and will remain independent contractors. Each party shall retain exclusive management, direction, and control if its employees and the work to be performed by it hereunder.
9.7 The Agreement Documents are the complete and exclusive statement of the mutual understanding of the Parties and it supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of the Agreement Documents.