The end user terms and conditions contained herein apply to all sales and samples of goods and services (“Products”) made or provided by Penn-Century, Inc. (“Penn-Century”), to any purchaser (or, with respect to samples, prospective purchaser) (“Buyer”). Penn-Century does not accept and hereby expressly rejects all terms and conditions contained in any document issued by Buyer which purport to pertain to the Products and/or the relationship between Penn-Century and Buyer, which terms and conditions are in addition to or inconsistent with the terms and conditions set forth herein, and such terms and conditions shall not become part of the order between Buyer and Penn-Century. Acceptance of delivery of any Product by Buyer shall constitute acceptance of the End User Terms and Conditions hereof.
Orders. All orders are subject to acceptance in writing by Penn-Century at its office in Wyndmoor, PA. Buyer shall have no right to cancel any accepted order without the prior written consent of Penn-Century.
Prices. All stated prices are F.O.B. Penn-Century’s shipping point. Buyer shall bear and be solely responsible for all shipping costs and shall bear all risk of loss in transit. All stated prices are exclusive of taxes. Buyer shall pay any taxes, fees and duties, or other amounts, however designated (other than taxes on Penn-Century’s net income or gross receipts), levied or based upon the Products and/or any order. Applicable taxes shall be billed as a separate item on each invoice to the extent possible. Should these End User Terms and Conditions accompany a Penn-Century quotation, the prices therein will be valid for thirty (30) days from the date of the quotation, unless another period of time is specified in such quotation.
Payment Terms. Prepayment shall be required for each shipment of Products unless otherwise agreed to in writing by Penn-Century. Notwithstanding the above, if at any time in Penn-Century’s judgment Buyer’s financial condition does not justify the continuation of production or shipment of Products on the terms of payment originally specified, Penn-Century may require full or partial payment in advance or upon delivery, may require other security for payment or performance, or may impose such other credit or payment terms as it deems appropriate in its sole discretion. All payments shall be made in U.S. currency. Any sum not paid by Buyer when due shall bear interest until paid at a rate of 1.5% per month (18% per annum), or the maximum rate permitted by law, whichever is less.
Delivery. Delivery dates are approximate. Penn-Century shall not be liable for delays in or failure of delivery of Products due to acts of God, acts of Buyer or of third parties (including without limitation, Penn-Century’s suppliers), acts of civil or military authority, fires, strikes, floods, epidemics, war, riot, terrorist acts, delays in transportation or other causes beyond Penn-Century’s reasonable control.
Acceptance. All claims with respect to allegedly nonconforming or defective Products shall be made by Buyer in writing within thirty (30) days of receipt of shipment of such Products, after which the Products shall be deemed accepted for all purposes and Penn-Century shall have no liability for same.
Limited warranty. Penn-Century warrants that at the time of shipment, and for a period of twelve (12) months thereafter, the Products will be free from material defects in manufacturing, and shall be manufactured in material compliance with agreed upon specifications. EXCEPT AS EXPRESSLY PROVIDED IN THE FOREGOING SENTENCE, PENN-CENTURY DOES NOT MAKE ANY, AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL, WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PENN-CENTURY SHALL HAVE NO LIABILITY FOR ANY PRODUCTS THAT ARE CLOGGED OR BLOCKED DURING USE. IN THE EVENT THAT A PRODUCT SHALL BECOME CLOGGED OR BLOCKED, BUYER MAY SEND SUCH PRODUCT TO PENN-CENTURY FOR REPAIR IN ACCORDANCE WITH THE TERMS OF THE REPAIR SECTION BELOW.
Limitations of Liability. Penn-Century’s exclusive obligation under the warranties in the section above, and Buyer’s exclusive remedy, shall be limited to replacing or repairing the defective Products, subject to Buyer’s providing timely notice of any defect pursuant to the Acceptance section hereof and the Supplier’s agreement to accept return of same. Penn-Century will deliver replacements for defective Products to Buyer freight prepaid. Products returned to Penn-Century for which Penn-Century provides replacement under the above warranty shall become the property of Penn-Century. IN NO CASE WILL PENN-CENTURY BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, WHETHER OR NOT PENN-CENTURY KNEW OR HAD REASON TO KNOW OF THE LIKELIHOOD OF SUCH DAMAGES. THE TOTAL LIABILITY OF PENN-CENTURY WITH RESPECT TO THE MANUFACTURE, SALE, DISTRIBUTION, RESALE, REPAIR, REPLACEMENT OR USE OF ANY PRODUCTS HEREUNDER SHALL NOT EXCEED THE PURCHASE PRICE ACTUALLY PAID BY BUYER FOR SUCH PRODUCT OR PORTION THEREOF GIVING RISE TO THE LIABILITY.
Indemnity. Buyer acknowledges and agrees that it has expertise and knowledge in the proper handling, processing, storage, transportation, sale, use and disposal of the Products. Buyer shall assume full responsibility for proper handling, processing, storage, transportation, sale, use and disposal of the Products after shipment to Buyer, and shall defend, indemnify and hold harmless Penn-Century and its affiliates, officers, directors, shareholders, employees, agents and representatives from and against all losses, liabilities, claims, damages, demands, actions, costs and expenses (including without limitation attorneys’ fees and court costs) (collectively, “Losses”), arising out of or relating to same. Buyer shall further indemnify Penn-Century with respect to any Losses arising from or relating to any actual or alleged infringement of Products manufactured to Buyer’s specifications.
Products may be returned for a refund, minus the cost of shipping and handling to the Buyer, only if returned unopened and unused in their original packaging within 10 days of receipt of such Product by Buyer. The customer is responsible for the cost of shipping returned Products to Penn-Century and risk of loss shall remain with the Product until the Product is delivered to Penn-Century. Products that have been opened, used or modified are not returnable or refundable. Custom-manufactured Products are not returnable or refundable.
Products may be returned for repair to Penn-Century, provided that Buyer gets prior written approval from Penn-Century for such repair prior to shipment of such Product. No Product that contains hazardous, infectious or toxic material will be accepted for return. The cost of repairs shall be at Penn-Century’s then current rates for such repairs. Buyer shall be responsible for the cost of shipping any Product to be repaired to Penn-Century and the cost of returning such Product to Buyer, unless such Product is defective as agreed by Penn-Century and Buyer. Penn-Century represents will use reasonable efforts to repair the Products. Other than the foregoing representation, Penn-Century provides no other representations or warranties with respect to repair of the Products. Penn-Century does not guarantee that it will repair any Product.
Use of Penn-Century and Product Name in Publications or Presentation
As a condition of sale, the Buyer agrees that upon publication or presentation of any research conducted using a Product, the Penn-Century name and Product name must be correctly referenced as the manufacturer (“Penn-Century. Inc. Wyndmoor, PA”) and the Products must be correctly spelled and cited, and include Penn-Century’s registered trademark and model number as follows and as applicable: “MicroSprayer® Aerosolizer – Model ___”, “FMJ-250 High Pressure Syringe”, “Dry Powder Insufflator™ – Model ___” or “Small Animal Laryngoscope – Model LS-2″. A breach of this section shall result in immediate harm to Penn-Century, and in addition to any and all rights available to Penn-Century, Penn-Century shall be entitled to an injunction or other equitable relief as a remedy for such breach.
Products Not for Human Use
The Products are intended for laboratory use only and are not intended for human in-vivo use or for any other purposes. Buyer acknowledges that the products have not been tested by Penn-Century for safety and efficacy for any use. Buyer represents and warrants that its use of the Products shall comply with the intended use for the products as set forth in this section.
Intellectual Property Rights of Products
Penn-Century owns the entire right, title and interest to the design and intellectual property rights of the Products. Any unauthorized reproduction or distribution of Products is strictly prohibited. Neither the Buyer nor its employees, agents or subcontractors shall reverse engineer, disassemble or decompile any Products, prototypes, sample products or other tangible objects that embody the designs of Penn-Century.
Penn-Century’s standard instructions for use are provided with each Product. Any significant additional technical support required by Buyer or Buyer’s employees, agents, and subcontractors, pertaining to the use, care and operation of Products, may be provided by Penn-Century at a cost of $150/hour, or Penn-Century’s then current rate for such services.
Termination. In the event of Buyer’s breach, bankruptcy or insolvency, or if any proceeding is brought against Buyer under the bankruptcy or insolvency laws, Penn-Century shall be entitled to cancel any or all orders then outstanding and shall receive reimbursement for its cancellation charges, which include but are not limited to all costs, direct and indirect, for labor, materials, tools, overhead, and profit to which Penn-Century would be entitled had the order not been canceled. All payment obligations, disclaimers of warranty, limitations of liability, indemnities, and other terms that by their nature are intended to extend beyond termination of the applicable order shall survive termination.
Product’s End User. In the event that Buyer is not the ultimate end user of the Products, Buyer shall make these End User Terms and Conditions known to such end user. Buyer acknowledges and agrees that it shall not extend warranties or guarantees, orally or in writing, respecting the performance, design, quality, merchantability or fitness for purpose of Products, other than those warranties expressly set forth herein.
Waiver; Remedies Nonexclusive. No failure by Penn-Century to take any action or assert any right hereunder shall be deemed to be a waiver of such right in the event of the continuation or repetition of the circumstances giving rise to such right. Acceptance by Penn-Century of any payment or payments from Buyer shall not constitute a waiver of any default or prevent Penn-Century from asserting a claim for an additional amount due or from exercising any other right or remedy. The rights and remedies of Penn-Century provided for herein shall be cumulative of and in addition to all other rights and remedies now or hereafter available to Penn-Century at law or in equity.
Entire Agreement. These End User Terms and Conditions constitute the entire agreement between Penn-Century and Buyer with respect to the subject matter hereof and supersede all prior agreements with respect thereto. No amendment or modification of these End User Terms and Conditions shall be binding unless in writing and duly executed by authorized representatives of each party.
Assignment. Buyer shall not delegate any duties, nor assign any of its rights or claims under these End User Terms and Conditions or any order, without the prior written consent of Penn-Century. Any attempted delegation or assignment in violation of this section shall be void.
Severability. If any term or condition of this order should be declared invalid by any competent court of law, it shall be considered deleted from this order. All other terms and conditions hereof shall remain in full force and effect.
Governing Law; Jurisdiction; English Language. The validity of this order, as well as its interpretation, operation, and effect shall be determined exclusively by the laws of the Commonwealth of Pennsylvania, notwithstanding its conflicts of laws principles. Any dispute arising out of or in connection with this order or the relationship of Penn-Century and Buyer shall be adjudicated exclusively in the state courts for Montgomery County, Pennsylvania or the federal courts for the Eastern District of Pennsylvania, and all parties consent to personal jurisdiction and venue therein. These End User Terms and Conditions have been prepared in the English language and the English language shall control its interpretation. All consents, notices, reports and other written documents to be delivered or provided by Buyer shall be in the English language.
Last updated October 2012