Sale Terms and Conditions
Fortis Sales Terms & Conditions (rev. 05/2024)
These Sales Terms and Conditions ("Terms") apply to the sale or use of Fortis products and services (collectively referred to as "Product" or "Products") between Fortis Life Sciences, LLC (together with its subsidiaries and affiliates, "Fortis"), and the party named in the applicable quote, proposal or statement of work ("Customer"). Fortis and Customer may hereinafter be referred to individually as a "Party" and collectively as the "Parties." The Parties, intending to be legally bound, agree as follows:
1. Agreement. These Terms, together with the applicable Fortis quote(s), proposals, statements of work or other Fortis attachments executed by the Parties, constitute the entire agreement between the Parties (the "Agreement") with respect to the Products. Any Customer documentation (including Customer’s purchase order terms and conditions) that conflicts with or attempts to modify this Agreement in any way is hereby rejected and of no effect unless specifically agreed to in writing and signed by the Parties. This Agreement supersedes all other quotations, agreements, understandings, warranties, and representations (whether written or oral) between the Parties with respect to the subject matter set forth in this Agreement. If, however, a written contract is already in existence between Fortis and Customer covering the transfer of the products or services covered hereby, the terms and conditions of such contract shall prevail to the extent that it is inconsistent with the terms and conditions contained herein. All sales are expressly conditioned on Customer’s assent to the terms of the Agreement and Customer’s issuance of a purchase order constitutes acceptance of the Agreement. Headings and captions in this Agreement are for convenience only, and in no way affect its interpretation.
2. Prices and Taxes. Customer shall pay the Product price listed on the quotation and/or invoice. If no price is specified, then Customer will pay the Product price set forth in the standard Product price list in effect on the date of the acceptance of the Purchase Order. All Product prices are subject to change without notice. Unless otherwise agreed upon in writing, prices, fees, and charges for Products are payable in the currency specified in the invoice, and do not include any applicable taxes or shipping charges. Customer will be responsible for assessing and paying all applicable sales, use, excise, VAT and/or other taxes specific to your purchases from Fortis. If Customer claims any tax exemption, it must furnish a valid tax exemption certificate to Fortis before shipment of Products. Customer agrees to indemnify Fortis for any liability, including government claims or fines, costs, and attorneys’ fees if such applicable taxes are not paid by Customer.
3. Payment. Unless otherwise specified in the invoice, Customer shall pay invoices Net thirty (30) days from the invoice date. Fortis may charge monthly interest at the maximum rate permitted by law on all amounts not paid by the invoice due date until all such amounts are paid in full. Fortis is not obligated to deliver any Product when Customer’s payment is past due. All payments are non-refundable, unless otherwise agreed upon in writing. Payments are not subject to any claim, counterclaim or set-off by Customer. Customer shall be responsible for all costs, including attorneys’ fees, incurred by Fortis in the effort to collect on any overdue balance.
4. Product Shipment and Risk of Loss. Unless otherwise indicated in the applicable quote, all Products shall be shipped F.O.B. Origin, regardless of any provisions for payment of freight, insurance, the form of shipping documents, or selection of carrier by Fortis. F.O.B. Origin means title and risk of loss to the Products passes to the Customer at the shipping dock of Fortis or Fortis’ or authorized agent. Unless otherwise agreed upon in writing, Customer is responsible for applicable shipping and handling charges.
5. Delivery. Fortis shall use good faith efforts to ship Products on the dates and in the quantities listed in Customer’s purchase order(s) but all delivery dates are estimates and non-binding on Fortis. Fortis may make shipments of Product(s) as available, and each shipment shall be separately invoiced. All Products shall be adequately packed for shipment in Fortis-designated containers in compliance with all applicable shipping regulations and marked for shipment to the address listed in this Agreement. Purchase orders received from Customer are non-binding on Fortis until accepted by Fortis. All delivery nonconformances must be reported to Fortis the earlier of ten (10) calendar days of the date of invoice or three (3) business days from the date of Product receipt. Notwithstanding the foregoing, any claims for loss or damage of Products that occurred in transit must be made directly to the applicable carrier.
6. Acceptance. Product orders are subject to written acceptance by Fortis, receipt of specified deposits, as applicable, and continuing credit approval. If Customer fails to accept shipment of Products ordered by Customer or contemplated by the Agreement, Customer shall be responsible for Fortis' reasonable insurance, handling, and storage charges.
7. Delay of Performance. Fortis’ obligations herein are subject to force majeure, including, but not limited to, war, civil insurrection, terrorism, fire, flood, earthquake, labor disputes, shortages, delays of suppliers or contractors, or government priority systems, actions taken or threatened by any governmental agencies, acts of God, epidemics, pandemics, or other contingencies, or acts not within the sole control of Fortis. Fortis reserves the right during any shortage period to (a) make Products available to Customer as it sees fit without any Fortis liability to Customer; and (b) make substitutions and modifications in the specification of any Products, provided such substitutions or modifications do not materially affect the performance of Products.
8. Warranties. Except as otherwise expressly stated in this Agreement, Products are warranted to conform to published specifications and/or for the greater of either (i) thirty (30) days, or (ii) the expiration date shown on their respective packages ("Warranty Period"). These warranties do not apply to any Product that is: (a) altered, modified, repaired or enhanced other than by Fortis authorized personnel; (b) any Customer use that infringes a third party’s intellectual property rights; (c) stored, maintained, or used in any manner inconsistent with applicable Fortis specifications or instructions; (d) any Product defect arising from specifications and/or materials supplied by Customer; or (e) designated as supplied subject to a non-Fortis warranty or on a "as-is" basis. Fortis does not warrant that (a) Products are validated for diagnostic, prophylactic, therapeutic, or clinical use, (b) Products are validated for any other specific uses or applications than are expressly stated in the applicable Product technical data sheet, instructions for use and/or labeling, or (c) use of Products with third party products not validated by Fortis. If any services are supplied hereunder, Fortis warrants and represents they will be performed properly, in a workmanlike manner in accordance with industry standards and the specifications agreed upon in the applicable statement of work. Customer acknowledges that there are no warranties or representations that have been made by Fortis or any of its agents other than those expressly contained herein.
9. Warranty Claims and Remedies. In the event of any Product warranty claim, Fortis, in its sole discretion, shall replace the Product, or refund or credit to Customer an amount equal to the purchase price of the Product. Product replaced shall become Fortis property. All claims shall be initiated by contacting Fortis within the applicable Warranty Period and within thirty (30) days after discovery of the breach or non-conformity. Fortis must be given an opportunity to inspect all associated Product. These remedies shall comprise Fortis’ entire liability and Customer’s exclusive remedy for breach of warranty and are in lieu of any other remedies at law or equity. FORTIS’ ENTIRE WARRANTY RESPONSIBILITY IS EXPRESSLY LIMITED TO REPLACEMENT (AT FORTIS’ OPTION AND IN THE FORM ORIGINALLY SHIPPED) OFPRODUCT SUBJECT TO ANY CLAIM, OR, AT FORTIS’ ELECTION, REFUND OF, OR CREDITING CUSTOMER WITH, AN AMOUNT EQUAL TO THE FORTIS PRICE, FEE, OR CHARGE THEREFOR. THE FOREGOING WARRANTIES ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES NOT EXPRESSLY SET FORTH HEREIN, WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FORTIS EXPRESSLY DISCLAIMS, AND CUSTOMER EXPRESSLY WAIVES, ANY WARRANTY REGARDING RESULTS OBTAINED THROUGH THE USE OF THE PRODUCTS INCLUDING, WITHOUT LIMITATION, ANY CLAIM OF INACCURATE, INVALID, OR INCOMPLETE RESULTS. SUCH LIMITED WARRANTY IS GIVEN SOLELY TO THE ORIGINAL CUSTOMER AND IS NOT GIVEN TO, NOR MAY IT BE RELIED UPON BY, ANY THIRD PARTY INCLUDING, WITHOUT LIMITATION, CUSTOMERS OF CUSTOMER. THIS WARRANTY IS VOID UPON TRANSFER OF PRODUCT BY CUSTOMER TO ANY ENTITY. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER. CUSTOMER MAY ALSO HAVE OTHER RIGHTS, WHICH VARY, FROM STATE TO STATE.
10. LIMIT OF LIABILITY. FORTIS IS NOT LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL LOSSES, DAMAGES, OR EXPENSES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, DATA, OR USE), DIRECTLY OR INDIRECTLY ARISING FROM THE SALE, HANDLING OR USE OF PRODUCT ORDERED OR FURNISHED PURSUANT TO THIS AGREEMENT, OR FROM ANY CAUSE RELATING THERETO UNLESS EXPRESSLY AGREED TO BY THE PARTIES IN WRITING. EXCEPT FOR PERSONAL INJURY OR DEATH TO THE EXTENT RESULTING FROM FORTIS’ GROSSLY NEGLIGENT OR INTENTIONALLY WRONGFUL ACTS OR OMISSIONS, FORTIS IS NOT LIABLE UNDER ANY LEGAL THEORY OR FOR ANY CAUSE WHATSOEVER, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, NEGLIGENCE, OR OTHER THEORY, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, FOR ANY AMOUNT IN EXCESS OF THE PRICE, FEE OR CHARGE THEREFOR RECEIVED BY FORTIS FOR THE PRODUCT SUBJECT TO THE CLAIM.
11. Governmental Authorizations. Customer is responsible for compliance and costs associated with all required licenses, permits, or other governmental authorizations, including, but not limited to, any license or certification needed for Customer to use the Product, dispose of the Product, and any export or import license, exchange permit, or the like ("Licenses"), even if applied for by Fortis on Customer’s behalf. If any authorization is delayed, denied, revoked, restricted, or not renewed, Fortis is not liable, and Customer is not relieved of its obligations. Customer represents and agrees that it shall handle all Product and technical data related to the Licenses so that it conforms to all applicable U.S. laws and regulations, including U.S. export licensing laws and the U.S. Foreign Corrupt Practices Act. Customer shall not trans-ship, divert, re-export or otherwise dispose of any U.S. origin goods or technology obtained from Fortis except as U.S. laws and regulations expressly permit.
12. Intellectual Property. All intellectual property rights (patent, trademark, copyright, trade secret or otherwise) relating to the Products, including but not limited to, specifications, performance data, technical data sheets, instructions for use, and labels ("Documentation"), are solely and exclusively owned by Fortis. Fortis’ sale or transfer of Product to Customer grants to Customer a limited, non-transferable right (a) to use the quantity of Product purchased under the Agreement only as authorized; and (b) to use the applicable Documentation and content contained therein (e.g., protocols, validation data and images) solely for the Customer’s authorized use of the Product and for no other purpose. The sale or transfer of a Product to Customer does not grant Customer any other license rights to Fortis’ intellectual property, including without limitation, the right to make or have made any Product or portion thereof, or the right to reproduce, display, redistribute copies, create derivative works, reverse engineer, or otherwise use the Documentation.
13. Indemnity. Customer hereby agrees to indemnify, defend and hold harmless Fortis and its affiliates, subsidiaries, shareholders, officers, directors, employees, agents, representatives, subcontractors, invitees, successors and assigns (collectively the "Indemnified Parties") from and against any and all claims, suits, actions, liabilities, losses, costs, reasonable attorneys’ fees, expenses, judgments and damages (collectively, the "Losses"), resulting from any claim made or suit brought (each, a "General Claim") against any Indemnified Party which results or arises from, or is attributable to: (a) Customer’s negligence, intentional misconduct, omissions or failure to comply with all applicable laws, rules, and regulations; (b) Customer’s use of the Products in connection with this Agreement; (c) any breach of any representation, warranty or the terms of this Agreement by Customer or Customer’s representatives; or (d) third party infringement claims resulting from Products produced in accordance with Customer.
14. Confidential Information. Both Parties agree to hold in strict confidence the terms of this Agreement and all information provided to the other in connection with the performance of their respective obligations under this Agreement, including, without limitation, product specifications, financial and pricing information, except to the extent that disclosure is required by applicable law. Notwithstanding the foregoing, the terms and conditions of this Agreement must not be disclosed to any third party without the prior written consent of the other Party, except either Party may disclose the terms and conditions of this Agreement to its employees, professional advisors, agents or independent contractors who require knowledge of this Agreement, so long as such individuals are subject to applicable non-disclosure agreements. Each Party retains all of its rights, title and interests to their own Confidential Information.
15. Use Restrictions. Products are only intended for the uses listed in the applicable technical data sheets, instructions for use and/or Product labeling and are subject to the specifications and requirements set forth therein. Customer assumes all risks associated with non-listed uses of Products and/or use of Products which is inconsistent with the specifications and requirements applicable to such Products. Customer hereby indemnifies and holds Fortis harmless from any claim associated with any such non-listed uses. Unless otherwise authorized by Fortis in writing, Customer is not licensed to, and agrees not to: (a) resell any Product; (b) transfer, or distribute any Product, directly or indirectly, to any third party for any purpose or use; (c) use or allow anyone to dilute any Product; or (d) reverse engineer, disassemble, or conduct unauthorized analysis of any Product and/or its method of use.
16. Term, Termination and Survival. This Agreement will be effective on the date the purchase order is accepted and will remain in effect until: (i) such quote expires, (ii) all Products have been delivered, or (iii) or the Services are completed, whichever occurs first. Any termination or expiration of this Agreement will not affect any outstanding obligations of payments due hereunder prior to the termination or expiration, nor will it prejudice any other remedies that the Parties may have under this Agreement. All clauses set forth herein that would, by their nature, survive termination will survive any termination or expiration of the Agreement.
17. Default. In addition to any default events specified elsewhere in this Agreement, the occurrence of any of the following events constitutes a default ("Default") by either applicable Party: (a) non-payment when due of any amount payable by Customer in accordance with this Agreement; (b) failure to materially perform any covenant or condition of this Agreement; (c) the other Party becomes insolvent, unable to pay debts as they become due; (d) a voluntary or involuntary bankruptcy proceeding is instituted by or against a Party hereto; or (e) an appointment of a receiver or assignee for the benefit of creditors occurs on behalf of a Party hereto. In the event of Default by Customer hereunder, all indebtedness of Customer may, at the option of Fortis and without demand or notice of any kind, immediately become due and payable, and in addition to all other remedies, Fortis may immediately terminate this Agreement. The non-Defaulting Party is entitled to recover from the Defaulting Party any and all expenses and damages that the non-Defaulting Party sustains by reason of Default including, but not limited to, reasonable attorneys’ fees. The remedies and rights specified herein are cumulative and not exclusive. The exercise or the non-exercise of any right or remedy does not limit or prejudice the non-defaulting Party as to that right or remedy or as to any other rights or remedies provided by applicable law.
18. Compliance with Laws. Fortis and Customer shall comply with all applicable federal and state laws that govern the enforceability and performance of this Agreement.
19. Fraud and Abuse. Customer hereby represents and warrants that it is not currently a listed on any of the United States government restricted parties lists, including but not limited to the: (a) Federal General Services Administration’s "List of Parties Excluded from Federal Procurement or Nonprocurement Programs" in accordance with Presidential Executive Orders 12549 and 12689 "Debarment and Suspension;"; (b) Office of the Inspector General of the Department of Health and Human Services’ "List of Excluded Individuals/Entities;" (c) United States Commerce Department Bureau of Industry and Security "BIS" Denied Persons List; (d) United States Treasury Department Office of Foreign Assets Control "OFAC" Specially Designated Nationals and Blocked Persons List; or (e) United States Department Directorate of Defense Trade Controls "DDTC" Debarred Parties List.
20. Waiver and Severability. If either Party fails to perform obligations under this Agreement, such nonperformance does not affect the other Party’s right to enforce performance at any time. No provision of this Agreement shall be waived, amended, modified, superseded, canceled, terminated, renewed, or extended except in a written document signed by both Parties or signed by the Party against whom the modification is sought to be enforced. Each provision of this Agreement is separate and independent of one another, and the unenforceability of any provision shall not affect the enforceability of any other provision. If any provision is held to be excessively broad or unenforceable, such provision shall be modified accordingly to be enforceable to the fullest extent possible by law.
21. Assignment. Customer shall not assign this Agreement without the prior written consent of Fortis, which consent shall not be unreasonably withheld or delayed. Subject to the foregoing, the rights and obligations herein shall be binding upon the successors and assigns of Customer. This Agreement shall not confer any right or remedy upon any person or entity other than the Parties and their respective successors and permitted assigns.
22. Notices. Any notification required under this Agreement is deemed to have been given either one (1) day after being given to an express overnight carrier with a reliable system for tracking delivery; or three (3) business days after having been mailed postage prepaid by United States registered or certified mail. Any required notices to Customer shall be delivered to the address set forth in the applicable Fortis quote or purchase order, and to Fortis at the addresses listed below. Either Party may change its mailing address by notice as provided by this section. Fortis Life Sciences, LLC, 1440 Main Street, Suite 300, Waltham, MA 02451, Attention: Chief Legal Officer, email: legal@fortislife.com.
23. Independent Contractors. The Parties are independent contractors, and this Agreement will not be construed to create between Fortis and Customer any other relationship such as, by way of example only, that of employer-employee, principal, agent, joint-venturer, co-partners or any similar relationship.
24. Governing Law. Upon execution, this Agreement is a Delaware contract, entered into in Delaware, and shall be governed and viewed under the laws of the State of Delaware without reference to its conflict of laws provisions. The Parties specifically agree that any action relating to the relationship between the Parties, this Agreement, the Products or Services provided, purchased, or licensed hereunder, shall be brought, and tried in the Courts of Delaware. Customer hereby waives all objections to and consents to the jurisdiction of the Delaware Courts. The United Nations Convention on Contracts for International Sale of Goods will not apply to this Agreement or any other written agreement with Fortis unless expressly stated otherwise.
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