Pursuant to this Sales Order (“Sales Order”) by and between INGENERON and you (“Buyer”), INGENERON has agreed to sell, and Buyer has agreed to purchase, certain veterinary regenerative cell processing equipment (the “Equipment”). Buyer and INGENERON agree that the Sales Agreement and any recurring sales transaction between Buyer and InGeneron shall be governed and controlled by this set of INGENERON standard terms and conditions of sale (“Terms”) (the Sales Order and Terms together, the “Agreement”).
All payments shall be due and payable in accordance with the payment terms set forth in this Agreement. All amounts payable hereunder shall be paid when due, time being of the essence. Any amount due hereunder not timely paid shall incur a late charge on the unpaid balance of 1.5% per month or portion thereof (or such lesser amount as may be the maximum permitted by law). Buyer shall reimburse INGENERON any and all attorneys’ fees and other costs incurred by INGENERON in collecting any payment due hereunder.
All amounts payable hereunder are exclusive of any applicable federal, state, or local taxes and Buyer agrees to be responsible for the payment of same or to assist INGENERON in the collection, administration, and remittance of any such taxes to the extent same are the legal responsibility of INGENERON. Ownership; Risk of Loss; Security Agreement.
- Until Buyer has paid the purchase price in full, title to and ownership of the Equipment shall remain with INGENERON and Buyer shall not be entitled to, and shall not, sell, assign, convey, rent, pledge, or otherwise transfer any interest in the Equipment to any other party, including, without limitation, using the Equipment as security for borrowing or any other purpose.
- Although title shall not pass until the purchase price is fully paid, Buyer agrees to be fully responsible for any loss of or damage to the Equipment from and after the time that INGENERON delivers the Equipment to Buyer.
- Buyer hereby grants to INGENERON a purchase money security interest in the Equipment (and all proceeds thereof) until the purchase price for same is paid in full. Buyer shall execute any and all financing statements and take any other action deemed necessary or desirable by INGENERON to perfect its security interest.
Buyer shall at all times be responsible for all aspects of patient care and treatment, including, without limitation:
- diagnosis of patients and prescription of regenerative cell treatment;
- obtaining any required consent of owners, guardians, or other parties;
- preparation of patients for treatment, including, without limitation, ensuring adequate immobilization and/or sedation of equine and other patients to prevent uncontrolled kicking, agitation, distress, or pain;
- provision of any and all treatment including, without limitation, regenerative cell treatment with the Equipment, emergency treatment, or otherwise;
- provision of appropriately trained and licensed personnel to operate the Equipment and provide proper patient care;
- provision of any other products or services necessary to ensure proper and safe patient care. BUYER ACKNOWLEDGES THAT THE EQUIPMENT CONSISTS OF SOPHISTICATED ELECTRONIC EQUIPMENT. IF THE EQUIPMENT IS NOT USED PROPERLY, INJURY AND/OR PROPERTY DAMAGE, COULD RESULT. AS SUCH, BUYER IS FULLY RESPONSIBLE FOR ENSURING THAT ALL USE OF THE EQUIPMENT IS COMPLETED IN A SAFE AND PROPER MANNER, BY PROPERLY TRAINED AND LICENSED INDIVIDUALS, AND IN FULL COMPLIANCE WITH ALL INSTRUCTIONS FOR USE PROVIDED BY INGENERON. BUYER’S USE OF THE EQUIPMENT IS AT ITS OWN RISK.
INGENERON warrants to Buyer that, for a period of twelve months after the delivery date (the “Warranty Period”), the Equipment will be free of defects in materials and workmanship and will function in substantial conformity with INGENERON’s specifications. This warranty shall not apply to (and INGENERON shall have no obligation with respect to) any alleged defect to the extent of:
- any alteration, addition, attachment to, or modification of the Equipment not authorized in advance in writing by INGENERON that interferes with normal and satisfactory operation or maintenance;
- noncompliance with instructions for use or environmental specifications for the Equipment;
- use of any accessories to the Equipment not manufactured by INGENERON;
- repair, maintenance, or refurbishment of the Equipment or any portion thereof, including, without limitation, refurbishment of consumables, by any party other than INGENERON;
- neglect, misuse, accidents, failure of electrical power, air conditioning, humidity control, or other acts or conditions not within the reasonable control of INGENERON;
- any defect in connection with which Buyer fails to notify INGENERON in writing of the defect within 30 days of the date the defect was or should have been discovered. Any warranty provided by InGeneron is non-transferable by Buyer.
Compliance with Law
Each party warrants and covenants that it shall do all acts necessary to comply with all federal, state, and local laws, regulations, ordinances, and codes applicable to its operations or performance under this Agreement. Buyer specifically acknowledges and agrees that the Equipment is not FDA-approved for use in the treatment of humans and is therefore only to be used in connection with veterinary medical practice.
If INGENERON is delayed in or prevented from performing any obligation hereunder due to causes or events beyond its control, including, without limitation, any act of God, fire, riot, embargo, strike, legal action,
accidents, transportation delays, present or future law, or governmental order or regulation, such delay or non-performance shall be excused during the pendency of such condition and the time for performance extended or rescheduled by INGENERON.
All INGENERON confidential information and trade secrets (including, without limitation, INGENERON’s pricing and purchase terms) disclosed to or learned by Buyer shall remain the property of INGENERON. For a period of five (5) years from the date of disclosure to Buyer (or, in the case of trade secrets as defined under Texas law, until such information no longer constitutes a trade secret), Buyer shall not disclose such proprietary information to any third party or use such information in any way other than as expressly authorized in writing by INGENERON. INGENERON retains all rights in and to any intellectual property disclosed to Buyer at any point in connection with the Equipment.
Any dispute between the parties relating to this Agreement, whether or not a contract claim, shall be determined by binding and non-appealable arbitration under the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by a single arbitrator chosen by the parties, or, if the parties cannot agree upon a single arbitrator within thirty (30) days of a party giving notice to the other of a proposed choice for an arbitrator, then by a single arbitrator appointed by the Houston, Texas office of such association. The arbitration shall be conducted through the Houston, Texas office of such association and the arbitration costs shall be divided and borne equally by the parties.
All notices under this Agreement shall be in writing and shall be deemed to have been duly given and received only on the business day when personally delivered or transmitted successfully via facsimile, one (1) business day following the business day when deposited with a commercially respected overnight delivery service such as Federal Express, service fees prepaid, or three (3) business days following the day when sent by certified mail, return receipt requested, postage prepaid, to the intended recipient at the address or facsimile in the Sales Agreement.
No waiver by either party of any term of this Agreement shall affect such party’s rights to enforce such term in a subsequent instance. No waiver shall be binding upon a party unless confirmed in writing by that party. This Agreement may not be modified or amended other than in writing executed by both parties. This Agreement is severable, in that the invalidity of any term herein will not affect the enforceability of the remaining portions of this Agreement. This Agreement shall be governed by the laws of the state of Texas, excluding conflict of laws
principles. The headings contained in this Agreement are for the convenience of the parties only and shall not be interpreted to affect in any way the language contained herein. Neither party may assign this Agreement without the prior written consent of the other party; provided, however, that either party may assign this Agreement to a parent, subsidiary, or other affiliated party without the consent of the other party. INGENERON shall have the right to sublicense or subcontract any of its responsibilities hereunder. Unless otherwise agreed in advance in writing by INGENERON, Buyer shall remain liable for all assigned obligations in case of any failure of performance thereof on the part of any assignee of Buyer. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
Limited Manufacturer Warranty (the “Manufacturer Warranty”)
Certain of the Equipment sold or provided by INGENERON comes with a warranty from the original manufacturer of such Equipment. Manufacturer Warranties may carry different return and warranty policies than Equipment covered under the Limited Warranty offered by INGENERON, and INGENERON makes no claims or guarantees with respect to a Manufacturer Warranty. To return any Equipment under a Manufacturer Warranty for reason of defect, please contact INGENERON to obtain the manufacturer’s telephone number or address and contact the Manufacturer directly. All warranty service or technical support provided on Equipment under a Manufacturer Warranty is provided by the manufacturer, not by INGENERON. Please contact INGENERON or the manufacturer directly for support or other information.
INGENERON provides to Buyer a range of basic technical support options for the Equipment via a variety of on-line, telephone, and other methods. INGENERON may change the means through which it provides technical
support at any time. It is likely that many of Buyer’s questions will be answered by the documentation shipped with, and information loaded on, the Equipment. Set forth below are some current technical support services and options provided by INGENERON to Buyer.
- Product Manuals. A number of manuals and other publications (“Manuals”) accompany your Equipment. We recommend that Buyer carefully review these materials.
- Telephone Support. If you cannot find answers in the Manuals, Buyer can call technical support. Call volume can vary dramatically and affect Buyer’s ability to reach INGENERON technical support and/or the time that Buyer may be required to wait to speak to a technician.
Equipment may not be returned except in the case of defective merchandise. INGENERON may choose to repair, replace, or exchange Equipment at its discretion. Costs for shipping, handling, any applicable insurance fees, and
any applicable sales taxes, which are costs that you paid when you bought the Equipment, are not refundable and will be deducted from any refund. Failure to follow the procedures set out in this section may result in delays in the replacement of parts, repair, or replacement of your Equipment. In addition, INGENERON reserves the right to refuse to accept Equipment when these procedures are not followed. To return Equipment, you must call INGENERON Customer Service to receive a Return Merchandise Authorization (RMA) Number. You must ship the Equipment to INGENERON in original packaging, prepay shipping charges, and insure the shipment or accept the risk of loss or damage during shipment. Any returned Product shipped C.O.D., or without a RMA Number visible on the exterior of the carton, may be refused by INGENERON.