TERMS OF SALE
The following terms apply to all sales of Phosphorex products. Customer accepts these terms upon placement of any order for Phosphorex products.
Limited Warranty
Phosphorex represents and warrants that the product will conform to the included Certificate of Analysis at the time of shipping. PHOSPHOREX DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION FOR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Customer has sole responsibility for determining whether the product is suitable for its intended purpose. If Customer believes a product breaches the limited warranty, then Customer may provide written notice to Phosphorex of the claim of warranty breach within thirty (30) days after Customer receives the product. If Customer does not notify Phosphorex during this thirty-day notice period, then Customer will be deemed to have accepted the product and will have no further right to claim a breach of the limited warranty. Phosphorex will promptly investigate the claim. If Phosphorex agrees that there has been a breach of the limited warranty, then Phosphorex will promptly replace product at its own cost. In such event, replacement of the product will be the sole remedy of Customer under this Agreement for breach of the limited warranty. If Phosphorex disagrees that the product breaches the limited warranty, then the parties shall promptly seek to resolve the disagreement in good faith for a period not to exceed ninety (90) days from the date that Customer first notified Phosphorex of the claim, after which either party may pursue any available legal action.
Limited Use
The product is intended for research use only and not for any therapeutic or diagnostic use or any other use in humans or animals intended for food use. Customer may not re-sell the product to any third party without the prior written consent of Phosphorex.
Limited Liability
All product orders are shipped EXW (Incoterms 2020) to a location designated by Customer. PHOSPHOREX (INCLUDING ITS EMPLOYEES, AGENTS, OR OTHER REPRESENTATIVES) SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING ANY LOSS OF PROFIT, BUSINESS, OR GOODWILL, EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE. The maximum liability of Phosphorex to Customer under this Agreement is the amount paid by Customer to Phosphorex for purchase of the product. These limitations of liability shall not apply to the extent prohibited by applicable law.
Indemnification
Customer shall indemnify, defend, and hold harmless Phosphorex and its affiliates and its and their respective directors, officers, employees, consultants, and agents (the “Phosphorex Indemnitees”) against any and all losses, costs, expenses, and damages, including but not limited to reasonable attorneys fees, attributable to third party claims based on (i) the negligence or willful misconduct of a Customer or its agents, (ii) a breach of this Agreement by Customer, or (iii) use of the product; provided that Customer shall have no obligation to indemnify any claim to the extent attributable to the gross negligence or willful misconduct of Phosphorex or its agents.
Governing Law and Forum
This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts irrespective of any conflicts of law principles. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Each party hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts located in the Commonwealth of Massachusetts.