Terms & Conditions
General Terms and Conditions of Sale:
As used herein, “Cape Biologix” shall mean the entity listed on the document to which these terms are attached and/or referenced. These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of hardware and consumable products (“Products”) by Cape Biologix to the customer purchasing the Products (“Customer”). These Terms and the accompanying quotation, sales confirmation, bill of lading, and/or invoice document (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any pre-printed, standard or other terms set forth in (i) Customer’s purchase order or any other document ordering Products, and/or (ii) any third-party procurement platform, which are all hereby rejected and shall be void. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms, and Customer’s terms and conditions are expressly rejected. Customer’s acceptance of any quotation is expressly subject to Customer’s assent to these Terms, and Customer’s assent to these Terms shall be conclusively presumed from Customer’s submission of its purchase order to Cape Biologix.
2. Delivery of Products.
2.1 Customer’s purchase order shall be binding only upon Cape Biologix’s written acceptance or its fulfillment of such purchase order, whichever occurs first.
2.2 Cape Biologix shall use reasonable efforts to meet dates specified for the delivery of Products; however, all such dates are estimates only and subject to Cape Biologix’s availability. If Cape Biologix’s supply of Products is limited, Cape Biologix shall have the right to allocate the available supply among its customers in any manner it determines appropriate in its sole discretion.
2.3 Cape Biologix’s delivery obligation for Products is solely to deliver to a loading dock or other external loading point at the address specified on the quotation (the “Delivery Point”) using Cape Biologix’s standard practices for packaging and shipping. Unless otherwise indicated on Cape Biologix’s quotation, all Products are shipped FCA (Incoterms 2010) Shipping Point and Customer is responsible for all transportation, shipping and handling charges, which shall be prepaid and added to the invoice. Where Customer furnishes special transportation instructions, any special expense is to be borne by Customer, including any special handling, packaging and additional freight charges. Title to and risk of loss of Products passes to Customer upon shipment.
2.4 Cape Biologix may, in its sole discretion, without liability or penalty, make partial shipments of Products to Customer, regardless of utility to Customer in the absence of such undelivered portion. Each shipment will constitute a separate sale, and Customer shall pay for Products shipped whether such shipment is in whole or partial fulfillment of Customer’s purchase order.
3. Inspection, Acceptance and Return of Products.
3.1 Customer shall inspect Products immediately upon receipt and shall, within five (5) business days of receipt (the “Inspection Period”), give written notice to Cape Biologix of any claim that Products shipped constitute Nonconforming Products. “Nonconforming Products” means only the following: (i) Product shipped is different than specified on the Customer’s purchase order; or (ii) Product is visibly damaged. Customer will be deemed to have accepted Products unless it notifies Cape Biologix as indicated herein and furnishes evidence as required by Cape Biologix. If Customer receives Products where defects or nonconformities are not apparent upon initial examination or are not discovered until after the Inspection Period has passed, such Products shall be subject to the warranty set forth in Section 9 below.
3.2 If Customer notifies Cape Biologix of any Nonconforming Products in writing within the Inspection Period, Cape Biologix shall, in its sole discretion, (i) replace such Nonconforming Products, or (ii) credit or refund the payments made for such Nonconforming Products. Cape Biologix will provide to Customer a return authorization number that must be included with the return packaging for a return to be accepted. Customer shall ship, at Cape Biologix’s expense, Nonconforming Products to the facility designated by Cape Biologix. If Cape Biologix exercises its option to replace Nonconforming Products, Cape Biologix shall, after receiving Customer’s shipment of Nonconforming Products, ship to Customer the replaced Products to the Delivery Point. Customer acknowledges and agrees that the remedies set forth in this Section are Customer’s exclusive remedies for the delivery of Nonconforming Products. Customer will be liable for restocking charges in the event Products are returned to Cape Biologix which are not Nonconforming Products.
3.3 Except as provided in this Agreement, Customer has no right to return Products to Cape Biologix.
Customer shall purchase Products from Cape Biologix at the price(s) set forth in Cape Biologix’s quotation, or if no price has been quoted, then at the published list price in effect as of the date of acceptance of Customer’s purchase order. Prices are subject to adjustment on account of specifications, quantities, raw materials, cost of production, shipment arrangements (including without limitation, shipping outside of the country of original delivery), Customer’s delays in delivery, or other terms that were not part of the original quotation. If Customer requests shipment to a country other than the country originally requested, and if Cape Biologix elects not to cancel the order (which Cape Biologix may do in its sole discretion), Cape Biologix’s applicable surcharge for the actual country of delivery shall be added to the price.
All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs and taxes; provided, however, that Customer shall not be responsible for any taxes imposed on, or with respect to, Cape Biologix’s income.
If Customer claims that a transaction is not subject to any tax, Customer is exempt, or Cape Biologix is not required to collect any tax, Customer shall provide Cape Biologix with any documentation necessary to support such a claim.
6. Payment Terms.
Unless otherwise set forth in the quotation, Customer shall pay all invoiced amounts within thirty (30) days from the date of Cape Biologix’s invoice. Cape Biologix reserves the right to require Customer to make full or partial payment in advance or otherwise provide security to Cape Biologix’s satisfaction. Cape Biologix may impose interest on late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly from the date of delinquency. Customer shall reimburse Cape Biologix for all costs incurred in collecting any late payments that have not been disputed in good faith within the thirty (30) day payment period, including without limitation, costs of reasonable attorneys’ fees. In addition to all other remedies available under these Terms or at law, if (a) Customer fails to pay any amounts when due hereunder; or (b) Customer becomes insolvent or any proceedings are commenced under any bankruptcy or similar laws for Customer’s reorganization or other debt adjustment, then Cape Biologix shall be entitled to suspend the delivery of any Products and/or reject any of Customer’s future orders. Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Cape Biologix.
7. Reagents, Consumables, & Other Goods.
For Products that are protein reagents, Cape Biologix warrants that, at the time of shipment, all such Products shall conform to Cape Biologix’s published specifications. Unless otherwise set forth in the Product documentation, quotation or price list, the Warranty Period shall be for the earlier of: (a) 3 months from the date of delivery of such Products; (b) the expiration or “use by” date listed on the Product; (c) the half-life of the radioisotope contained in the Product; or (d) the Product’s specified number of uses. This warranty shall only be valid if such Products are stored in accordance with PerkinElmer’s instructions and used in accordance with the published specifications.
8. Infringement Indemnification.
Cape Biologix shall indemnify Customer from and against any claim, suit, action, or proceeding brought against Customer by a third party to the extent it is based on an allegation that a Product directly infringes any patent, copyright, trademark, or other proprietary right enforceable in the country in which the Product is delivered to Customer, or misappropriates a trade secret in such country (a “Claim”). Indemnification for a Claim shall consist of the following: Cape Biologix shall (a) defend or settle a Claim at its own expense, and (b) pay any judgments finally awarded against Customer under a Claim or any amounts assessed against Customer in any settlements of a Claim. Cape Biologix’s obligations under this Section are conditioned upon Customer (i) giving prompt written notice of a Claim to Cape Biologix, (ii) permitting Cape Biologix to retain sole control of the investigation, defense or settlement of a Claim, and (iii) providing Cape Biologix with such cooperation and assistance as Cape Biolgoix may reasonably request from time to time in connection with the investigation, defense or settlement of a Claim.
Notwithstanding the foregoing, Cape Biologix shall not settle any Claim on any terms or in any manner that would (i) require Customer to make a payment which Cape Biologix is not obligated by this Agreement to pay on behalf of Customer, or (ii) require Customer to make any admission against its interest, without Customer’s express written consent. Notwithstanding the foregoing, Cape Biologix shall have no obligation hereunder to defend Customer against any Claim (a) resulting from use of the Product other than as authorized in this Agreement, (b) resulting from a modification of the Product other than by Cape Biologix, (c) based on Customer’s use of the Product after Cape Biologix recommends discontinuation because of possible or actual infringement, (d) based on designs, specifications or modifications communicated by Customer which Cape Biologix satisfied or (e) to the extent such Claim arises from or is based on use of the Product with other products, services, or data not supplied by PerkinElmer if the infringement would not have occurred but for such use. If, as a result of a Claim, Customer must stop using any Product (“Infringing Product”), Cape Biologix shall at its expense and option either (1) obtain for Customer the right to continue using the Infringing Product, (2) replace the Infringing Product with a functionally equivalent non-infringing product, (3) modify the Infringing Product so that it is non-infringing, or (4) accept the return of the Infringing Product and refund the purchase price paid for the Infringing Product, pro-rated over a sixty (60) month period from the date of initial delivery of such Product and less a reasonable amount for use, damage or obsolescence.
9. Limitation of Liability.
IN NO EVENT SHALL CAPE BIOLOGIX BE LIABLE TO CUSTOMER FOR ANY LOSS OF USE, REVENUE OR PROFIT, LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT CAPE BIOLOGIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL CAPE BIOLOGIX’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO CAPE BIOLOGIX FOR THE PRODUCTS GIVING RISE TO SUCH CLAIM UPON WHICH LIABILITY IS BASED. The aforementioned limitations of liability shall not apply to infringement claims under Section 10 or liability resulting from Cape Biologix’s gross negligence or willful misconduct
10.1 Distribution & Use Restrictions. Products sold hereunder are being provided to Customer as the end-user. Customer is not permitted to purchase Products for resale. Further, and without limiting the foregoing, Customer shall not (i) transfer, sell, or otherwise distribute Products to any third party, whether alone or in combination with other materials, (ii) modify Products for resale, or (iii) use Products for any other use other than diagnostic or research. These products are not for therapeutic use.
10.2 Regulatory. If purchased hereunder, Customer agrees to use proteins in accordance with the Product’s Intended Use as defined in the documentation and specifications provided with such Product. Where Product is labeled with For Research Use Only or a similar labeling statement and is not for use in therapeutic procedures, Customer acknowledges that the Product has not been approved, cleared, or licensed by any regulatory entity for use as a therapeutic protein.
10.3 Compliance with Law. Each party shall comply with all applicable laws, regulations and ordinances in performing its obligations under this Agreement. Each party shall maintain in effect all licenses, permissions, authorizations, consents and permits needed to carry out its obligations under this Agreement. Customer acknowledges that the Products and related technical information are subject to the applicable SA export control regulations and Customer shall comply with all applicable restrictions and prohibitions on sale, transfer, export, shipment or other supply of Products, directly or indirectly, to any person, entity or country, or for any activity. Customer shall provide to Cape Biologix any documentation necessary for shipment of Products to the Delivery Point.
10.4 Cancellation. Unless otherwise stated on the quotation, all orders once placed are non-cancellable, unless Cape Biologix consents to such cancellation in writing and Customer pays any applicable cancellation and/or restocking charges.
10.5 Waiver. No waiver by either party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by such party.
10.6 Force Majeure. Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder) when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of the impacted party, including, without limitation: acts or omissions of the other party; acts of God, including flood, fire, earthquake, or explosion; mandatory or voluntary compliance with governmental regulations, requests, or actions; war, invasion or hostilities (whether war is declared or not); terrorist threats or acts, riot, or other civil unrest; national emergency; revolution or insurrection; epidemic; lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce); restraints or delays affecting carriers; inability or delay in obtaining raw materials or supplies of adequate or suitable quality; or telecommunication breakdown or power outage.
10.7 Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Cape Biologix. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
10.8 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns 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 under or by reason of these Terms.
10.9 Severability; Amendment and Modification. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.
10.10 Governing Law; Jurisdiction. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the Republic of South Africa, without giving effect to any choice or conflict of law provisions thereof. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the courts of the Republic of South Africa, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. The parties expressly agree to waive application of the United Nations Convention on Contracts for the International Sale of Goods.
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