TERMS & CONDITIONS OF SALE
The following provisions set forth the Terms and Conditions on which Avellino Lab USA, Inc., directly or indirectly through its distributors/agents, hereinafter referred to as Avellino, sells its Products and Services (as defined below) and related services. All purchases by Customer, owner, or its agent (“Customer”) are expressly limited and conditioned upon acceptance of the following Terms and Conditions. A placement of an order indicates Customer’s full acceptance and agreement of the terms and conditions stated herein to the fullest extent of applicable laws. Notwithstanding the foregoing, if Avellino and Customer have executed a formal written contract that is in full force and effect, the Terms and Conditions of that contract will apply and govern, to the exclusion of any inconsistent Terms and Conditions set forth herein.
means the Global Head of Sales and Marketing and the Chief Financial Officer of Avellino.
“Customer”means the entity to which Avellino is providing Products or Services under the Order Form.
“Order Form” means the purchase order signed by Customer and accepted by Avellino in writing, for the sale of Products or Services, together with these Terms and Conditions.
“Products” means collection packs used to collect samples from Patients for performance of the AvaGen™ Genetic Eye Test.
“Services” means the screening, testing, reporting of results, genetic counseling or other laboratory related services Avellino provides in connection with the AvaGen™ Genetic Eye Test.
“Terms and Conditions” means these “Terms and Conditions for the Sale of Products and Services”, together with any modifications or additional provisions specifically stated in Avellino’s final Order Form or specifically agreed upon by Avellino in writing.
2. Terms of Sale
Purchase of the Products and Services sold by Avellino shall be subject to and expressly limited by the Terms and Conditions stated herein. No changes to, waiver of, or addition to any of these Terms and Conditions shall be effective unless agreed to in writing and signed by an Authorized Representative of Avellino. Notwithstanding the foregoing, Avellino reserves the right at any time to amend these Terms and Conditions, and Customer shall be deemed to accept such amended Terms and Conditions by ordering Products and Services after the date of such amendment.
3. Pricing and Tax Information
All pricing quotes for Products and Services are firm for 30 days from the date quoted and must be documented in writing in the Order Form and confirmed by Avellino to be valid. Unless otherwise stated in writing by an Authorized Representative of Avellino, all prices for Products and Services: (a) are quoted and payable in U.S. Dollars, (b) are subject to change without prior notice at Avellino’s discretion following the 30 day quote, and (c) do not include applicable shipping and handling costs, which are the responsibility of Customer and, if paid by Avellino for Customer’s account, shall be invoiced to Customer either with the Products or separately. In the event Customer changes any order (if and when permitted by Avellino), Avellino may adjust prices accordingly.
4. Placement of Orders
- Purchase Orders. Customer must submit firm written purchase orders for Products and Services on the Order Forms provided by Avellino. Avellino accepts standing orders, blanket orders, and one-time orders provided they are confirmed by a signed Order Form. No verbal orders, changes or corrections will be accepted. Customer shall be responsible to Avellino for the accuracy of all orders. To place a purchase order, please call Avellino’s Customer Service at (650) 396-3741, Monday through Friday 8:00 am to 8:00 pm Pacific Time and Saturday-Sunday 8:00 am to 4:30 pm Pacific Time (except holidays). Telephone orders must be confirmed in writing on a written Order Form via fax or mail. Orders or order confirmations can be placed at any time via fax at (650) 486-9424. For electronic orders, please e-mail firstname.lastname@example.org. Customer agrees to submit such purchase orders in an efficient and orderly manner (e.g., generally aggregating Customer’s internal orders for Products and Services throughout any weekly period and then submitting a purchase order to Avellino for such Products and Services on a once per week basis to the extent practicable). To the extent applicable, Avellino retains the right to require purchases to be made in case quantities. When placing an order, please provide account name, Avellino account reference number (if known), Product and Service name and number, quantity, price, shipping instructions, Customer contact name and telephone/fax numbers.
- Order Acceptance. No order shall be binding upon Avellino unless and until confirmed and accepted by Avellino in writing.
- Order Cancellation. Customer shall not be entitled to revoke, reschedule, or cancel any purchase order for Products or Services after acceptance by Avellino without Avellino’s written consent, which consent shall not be unreasonably withheld, conditioned, or delayed. Avellino may cancel or terminate all or part of any order immediately if Customer is materially delinquent on any of its obligations hereunder or under any other order or transaction with Avellino; Customer becomes insolvent; a receiver under Title 11 U.S.C., as amended (the “Bankruptcy Code”) is appointed for or on behalf of Customer, or a case under any chapter of the Bankruptcy Code is commenced for, by or against Customer; Customer suspends or terminates business or makes an assignment for the benefit of creditors; or any event occurs, whether or not similar to the foregoing, which in Avellino’s good faith belief materially impairs the prospect of payment or performance by Customer hereunder. Avellino’s rights to cancel or terminate may be exercised by Avellino without liability.
5. Delivery and Shipment Terms
Avellino will use all reasonable efforts in good faith to deliver accepted orders for Products and Services in accordance with its delivery schedule provided by the order acceptance, acknowledgment, confirmation, or similar document, and if no such schedule is stated, promptly. However, Avellino shall not be liable for nonperformance or delays caused by a shortage of raw materials, manufacturing problems, delivery or labor problems, acts of regulatory agencies or judicial bodies, discontinuation of a product line, acts of God or third parties, infringement claims, or other causes beyond its reasonable control. Customer agrees that in such events Avellino may allocate Products or Services among all purchasers as it deems reasonable, without liability. Avellino reserves the right from time to time to substitute a Product with a product that has the same function as such Product.
All Products will be shipped by Avellino. All packing, transportation expenses, handling charges, freight, and insurance (if any) shall be for the account of Customer, and Avellino shall charge Customer for all such charges, costs, and expenses as a separate line item on Customer’s invoice. International Customers shall, at their expense, perform all functions necessary to clear the Product through all customs and similar controls into the country. Avellino will select the mode of shipment and the carrier but shall not be deemed thereby to assume any liability in connection with the shipment nor shall the carrier be construed as an agent of Avellino.
Title to the Products (subject to Avellino’s right of stoppage in transit) and risk of loss, damage and delay will pass to Customer upon Avellino’s tender of delivery of the Products. Avellino shall not be obligated to procure additional insurance.
When expedited delivery, specialized service, or alternate transportation modes are requested, or if requests are inconsistent with efficient distribution practices, an additional charge to cover the premium expense will be added to the invoice. Such additional charges will be based on current common carrier rates or hourly rates.
6. Customer Product Inspection, Acceptance and Returned Goods Policy
- Customer shall be allowed five (5) business days from the date of receipt of any Product to provide a written notice of rejection to Avellino of any Product that is damaged or has other visible defects. Customer’s notice shall state with particularity the reasons for such rejection. If Customer does not deliver such written notice to Avellino within five (5) business days, Customer shall be deemed to have accepted the Products as shipped.
- Customer’s right to return Products hereunder is limited to (i) non-confirming product (i.e., product that fails in a material way to meet the product insert specifications, is damaged, or has other visible defects); (ii) returns for breach of the warranty set forth in Section 7; and (iii) for suspended or recalled product. PRIOR TO RETURNING ANY PRODUCT, CUSTOMER MUST REQUEST A RETURN GOODS AUTHORIZATION NUMBER FROM AVELLINO (THE “RGA NUMBER”). UNLESS AVELLINO HAS AUTHORIZED IN WRITING THE RETURN OF ANY PRODUCT, AVELLINO WILL NOT BE OBLIGATED TO ACCEPT, MAKE ANY EXCHANGE, REPLACE OR PROVIDE CREDIT OR REFUND FOR ANY PRODUCT RETURNED BY CUSTOMER. Avellino will have the right to review and/or inspect any Product prior to its return or destruction by Customer. All returned Products must be in the original package and display the appropriate reference to the RGA Number on outside containers.
- As promptly as practicable after written confirmation by Avellino of properly rejected Products and if Avellino desires that Customer return a Product, Customer shall return the same to Avellino freight prepaid. Avellino will, in its sole discretion, either (i) issue a credit or refund for properly rejected and authorized returned Products or (ii) replace the Product. Avellino will pay the shipping charges in connection with the shipment of new Products to Customer for properly rejected Products. Such replacement, refund or credit shall be Customer’s sole and exclusive remedy with respect to defective, nonconforming, or incorrect product delivered by Customer hereunder.
7. Limited Warranty, Disclaimer and Limited Remedies
- Avellino warrants that Products, supplied to Customer under the Terms herein shall conform substantially with the specifications set forth in the related Product inserts and that such Products will comply with and be manufactured, packed, sterilized (if applicable), labeled and shipped in material compliance with all applicable laws, rules, regulations, and standards. THE WARRANTY CONTAINED HEREIN IS CONTINGENT UPON (i) PROPER USE AND HANDLING OF THE PRODUCTS IN THE APPLICATION FOR WHICH THE PRODUCTS ARE INTENDED, AND (ii) CUSTOMER NOT MODIFYING THE PRODUCTS WITHOUT AVELLINO’S EXPRESS, PRIOR WRITTEN APPROVAL, OR NOT SUBJECTING PRODUCTS TO IMPROPER STORAGE OR HANDLING. FURTHER, THE WARRANTY CONTAINED HEREIN DOES NOT APPLY TO PRODUCTS DAMAGED THROUGH ABNORMAL USE, MISUSE, MISHANDLING, NEGLECT, ACCIDENT, NEGLIGENCE, TAMPERING OR UNAUTHORIZED SERVICE. ANY DEFECTIVE PRODUCT MUST BE RECEIVED BY AVELLINO NO LATER THAN THIRTY (30) DAYS AFTER THE DATE AVELLINO ISSUES AN RGA NUMBER. THIS LIMITED WARRANTY EXTENDS TO THE FIRST END-USER PURCHASER ONLY AND IS NOT ASSIGNABLE OR TRANSFERABLE.
- THE EXPRESS WARRANTY DESCRIBED ABOVE CONSTITUTES THE ONLY WARRANTY WITH RESPECT TO THE PRODUCTS AND THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, FOR ANY PRODUCTS FURNISHED HEREUNDER AND AVELLINO MAKES NO REPRESENTATION OR WARRANTY OF ANY OTHER KIND OR NATURE AND AVELLINO EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), WITH RESPECT TO THE PRODUCTS, WHETHER AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR THEIR EQUIVALENT UNDER ANY OTHER LEGAL SYSTEM, OR ANY OTHER MATTER. AVELLINO DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS THAT ANY PRODUCT IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION.
- IN NO EVENT SHALL AVELLINO OR ITS AFFILIATES BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), QUASI-CONTRACT, MISREPRESENTATION OR OTHERWISE, FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSS OF USE OR REVENUE, OR PROFITS IN CONNECTION WITH OR ARISING OUT OF AVELLINO’S PROVISION OF ANY PRODUCTS OR SERVICES, OR CUSTOMER’S USE OF ANY PRODUCTS PROVIDED BY AVELLINO, OR DAMAGE TO SYSTEMS, PROGRAMS, OR DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AVELLINO’S SOLE LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), QUASI-CONTRACT, MISREPRESENTATION OR OTHERWISE, AND BUYER’S SOLE REMEDY OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY FAILURE OR DEFICIENCY OF THE PRODUCTS OR SERVICES OR NEGLIGENCE, WITH RESPECT TO ANY PRODUCTS OR SERVICES FURNISHED BY AVELLINO, OR IN RELATION TO ANY DELAY OR DEFAULT IN SUPPLYING THE PRODUCTS OR SERVICES, OR ANY OTHER CLAIM SHALL BE LIMITED TO AT AVELLINO’S OPTION, THE REFUND OR CREDIT OF THE PURCHASE PRICE FOR SUCH PRODUCT OR SERVICE, TOGETHER WITH ANY COSTS OF FREIGHT AND INSURANCE INCURRED IN CONNECTION WITH THE SHIPMENT OF SUCH PRODUCT, OR, AT AVELLINO’S OPTION, REPLACEMENT OF SUCH PRODUCT OR SERVICE AT AVELLINO’S COST AND EXPENSE (INCLUDING SHIPPING). ALL REPLACED PRODUCTS BECOME THE PROPERTY OF AVELLINO. THE TERMS SET FORTH HEREIN PURSUANT TO WHICH AVELLINO AGREES TO PROVIDE PRODUCTS AND SERVICES TO CUSTOMER REFLECT THE PARTIES’ AGREED UPON ALLOCATION OF RISK, AND WOULD BE DIFFERENT IF THE LIMITED WARRANTY, LIMITED REMEDY, WARRANTY EXCLUSION, AND LIMITATION OF LIABILITY PROVISIONS WERE DIFFERENT. THE LIMITATIONS CONTAINED IN THIS SECTION SHALL APPLY EVEN IF ANY LIMITED REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
8. Product Notices and Recall
- Customer shall within forty eight (48) hours of receipt thereof, by phone and in writing, advise Avellino should Customer receive any communication from any government agency or any complaint regarding the Products or Services, or become aware of any defect or condition which may render any of the Products or Services in violation of any statute or regulation, or which in any way alters the specifications of the Products or Services (as set forth in the related product inserts), including without limitation, recalls and investigations. If the incident has resulted, or is likely to result, in a patient reaction, Customer shall immediately notify Avellino by telephone. For any such communication, Customer may: (i) call Avellino at (650) 396-3741, Monday through Friday, 8 am to 8 pm Pacific Time and 8 am to 4:30 pm Pacific Time on Saturdays and Sundays, and (ii) email Avellino at email@example.com.
- Customer acknowledges and agrees that Avellino has the authority, in its sole and absolute discretion, to recall any Product to comply with applicable laws, and Customer agrees to fully cooperate with Avellino in the case of any such recall.
9. Payment Terms
Terms of payment are strictly net thirty (30) days from date of invoice for pre- approved Customers. Some credit cards are accepted for payment (a transaction fee may apply). Avellino reserves the right to require pre-payment or COD for purchases of Products and Services. Any international Customer order shall be prepaid to Avellino by electronic funds transfer in U.S. Dollars. In Avellino’s sole discretion, credit terms may be extended to Customer. Customer’s obligation to pay outstanding invoices and all other amounts is absolute and unconditional and is not subject to any abatement, reduction, set-off, defense, counterclaim, interruption, deferment, or recoupment for any reason whatsoever. All overdue payments shall bear interest at a rate of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is lower, until paid.
Any disputed amounts should be reported immediately and remitted with the undisputed amount by the payment due date. If Avellino agrees with the billing dispute, Avellino will credit Customer the amount of the agreed-upon billing dispute. All billing disputes must be made within six (6) months of the applicable invoice date or will be deemed to be waived./p>
Customer shall be liable for and shall reimburse Avellino for all costs and expenses it may incur in connection with collection of any amounts owed to Avellino or enforcement of its rights, including without limitation, reasonable attorneys’ fees and expenses, court costs, and costs of collection agencies. Avellino reserves the right in its sole discretion to cancel any unshipped orders and/or require all future shipments to be paid in full in advance of shipment until all overdue balances are made current.
10. Compliance with Laws, Export, Ethical Practices
Customer will follow and comply with all applicable governmental laws, regulations, and orders in the use or import of any Products. Customer will not export or reexport the Products except in full compliance with all applicable laws and regulations. Customer shall be responsible for obtaining and maintaining all applicable permits, licenses, or authorizations necessary for the import or use of the Products in Customer’s country at its sole expense (e.g., CITES import permits). Customer acknowledges it is solely responsible for complying with the Export Administration Act provisions concerning anti-boycott compliance, and that Customer is prohibited from taking or knowingly agreeing to take any of the actions contained in such Act, in either United States interstate or foreign commerce, with the intent to comply with, further, or support any boycott fostered or imposed by a foreign country against a country friendly to the United States. Customer certifies that it is not on the U.S. Commerce Department’s Denied Party or Entity List or the Unverified Parties List and agrees that it will not sell or distribute any Products to any party on such lists. Customer agrees and warrants that in performing its obligations under these Terms and Conditions, it will not take any action rendering Avellino liable for violation of the United States Foreign Corrupt Practices Act, which prohibits offering, giving, or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, political party, or instrumentality of these organizations, in order to assist it or Avellino in obtaining or retaining business. Customer will indemnify and hold Avellino harmless from all fees, fines, or other damages imposed on or suffered by Avellino due to Customer’s failure to comply with this section. For the avoidance of doubt, nothing in this Section 10 is intended to limit the prohibition of resale set forth in Section 12 below. Customer shall comply with applicable state and federal laws in connection with its purchase of Products and Services, including, without limitation, the federal False Claims Act (31 U.S.C. §§ 3729 et seq.), the federal anti-kickback statute (42 U.S.C. § 1320a-7b(b)) (the “AKS”), the federal Physician Self-Referral Law (42 U.S.C. § 1395, the “Stark Law”) , the Health Insurance Portability and Accountability Act of 1996 and the Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”), and any regulations implementing such laws, as well as all comparable state and local laws and regulations. Any discounts provided in connection with the sale of Products or Services are intended to comply with the AKS. Customer shall fully and accurately report in submissions to federal healthcare programs all discounts provided and, upon request of the Secretary of the U.S. Department of Health and Human Services or a state agency, shall make available information provided to Customer by Avellino concerning the discounts. Customer acknowledges that compliance with the AKS exception or regulatory safe harbor for discounts, including the reporting obligations, is a condition precedent for the sale of Products and that Avellino would not have agreed to sell Products and Services hereunder had Customer not agreed to comply with such obligations. Customer acknowledges and agrees that Avellino is not a HIPAA Business Associate to Customer. Customer acknowledges and agrees that Avellino has the authority, in its sole and absolute discretion, to recall any Product to comply with applicable laws, and Customer agrees to fully cooperate with Avellino in the case of any such recall.
All Products offered by Avellino are intended for Customer’s own use by qualified professionals. Customer acknowledges that it will comply with any instructions or directions contained in Avellino’s labeling and literature concerning the Products and will forward such information to its employees, agents, and contractors. Customer shall ensure that all employees, agents, and contractors use all due care with Products to prevent potential hazards and are appropriately trained in the use of the Products to collect samples for the Services. All clinical and medical treatment and diagnostic decisions are the responsibility of Customer and its professional healthcare providers.
12. Prohibition of Resale
Customer shall purchase the Products and Services for its own use only and shall not resell the Products or Services to any other party. Customer represents it has evaluated the Products and Services and that they are acceptable and clinically suitable for its intended purposes.
13. Permissible Variations
Avellino has the right to make changes in the composition of the Products which, in Avellino’s opinion, do not affect the general characteristics or properties of the Products or are within applicable governmental or industry standards.
14. Dispute Resolution
These Terms & Conditions of Sale is governed by the laws of the State of California, without regard to any choice of law provisions. Any controversy or claim between the parties or arising out of these Terms & Conditions of Sale shall be determined by one disinterested arbitrator in binding arbitration pursuant to the Commercial Arbitration Rules and the Supplementary Procedures for Online Arbitration of the American Arbitration Association (the “AAA”). If the parties fail to appoint an arbitrator within forty-five (45) days of the institution of the arbitration, the AAA shall select the arbitrator promptly thereafter. Any requests for accelerated, emergency, or preliminary relief shall be submitted pursuant to the AAA’s Optional Rules for Emergency Measures of Protection. If any such requests are made before an arbitration panel is empaneled, then the AAA shall appoint one disinterested arbitrator as an arbitration panel to immediately hear and decide such request. The arbitration panel shall have the right to grant interim awards. Testimony shall be permitted by telephone, video conference and other forms of real-time telecommunications. If the arbitrator requires in-person hearings, the hearings shall be held in Santa Clara, California. Any controversy, claim, or dispute will be resolved with a written decision stating legal reasoning issued by the arbitrator(s) at either party’s request, and with the arbitration costs and reasonable documented attorneys’ fees/costs of both parties to be borne by the party that loses (does not prevail). The arbitral award will be final and binding and may be entered and enforced in any court of competent jurisdiction. Either party may obtain injunctive relief (preliminary or permanent) and orders to compel arbitration or enforce arbitral awards in any court of competent jurisdiction.
15. Waiver of Jury Trial and Class Actions
- Any required notices shall be given in writing, in the case of Avellino, at the address set forth below (with a copy to the Legal Department at such same address), and in the case of Customer, at the address designated on Customer’s purchase order or to such other address as either party may substitute by written notice to the other and shall be deemed given upon electronic or facsimile delivery, personal delivery, overnight delivery or three days following deposit in the mail.
- Except as expressly provided herein, no changes or modifications to, or waiver of, any of these Terms and Conditions shall be valid or binding on either party unless in writing or signed by an authorized representative of each party. Avellino’s failure or delay to exercise or enforce any of its rights hereunder shall not constitute or be deemed to be a waiver of such rights or forfeiture of such rights, and Avellino may, at its option, from time to time, exercise any of its rights or remedies.
- These Terms and Conditions bind Customer and its successors and permitted assigns.
- Customer may not change, adulterate, obscure, remove or deface trademarks, tradenames or labels appearing on any Product of Avellino./li>
- Any knowledge or information that Customer may disclose to Avellino shall not be deemed to be confidential or proprietary information and shall be acquired by Avellino free from any restriction.
- If any of the provisions of these Terms and Conditions is deemed invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will in no way be affected or impaired thereby.
- ANY ERROR OR OMISSION IN THIS DOCUMENT OR ANY QUOTATION, CATALOG, SALES LITERATURE, INVOICE OR OTHER DOCUMENT ISSUED BY AVELLINO SHALL BE SUBJECT TO CORRECTION BY AVELLINO WITHOUT LIABILITY TO AVELLINO.
- Customer shall not copy, decompile, modify, reverse engineer, or create derivative works out of any Avellino Products or confidential information under any circumstances.