Xylyx Bio, INC. TERMS AND CONDITIONS OF SALE
The following terms and conditions will apply to the sale by Xylyx Bio, Inc. (“Xylyx Bio”) to the buyer ("Buyer"), of any products (the “Product(s)”). Sales of the Products are expressly subject to Buyer’s acceptance of these terms, without regard to any conflicting terms contained in any purchase order or other terms proposed by Buyer. Except as authorized in writing by Buyer, Buyer is expressly prohibited from selling, distributing, bartering or otherwise transferring Products purchased from Xylyx Bio to any unaffiliated third party. For transactions conducted through East River BioSolutions’s website (“Site”) these terms shall apply in addition to the Terms of Service posted on the Site, and these terms shall govern product sales transactions in the event of any conflicts with the Site’s Terms of Service.
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE, WHICH REQUIRES THAT YOU AND XYLYX BIO ARBITRATE CERTAIN CLAIMS BY BINDING, INDIVIDUAL ARBITRATION INSTEAD OF GOING TO COURT AND LIMITS CLASS ACTION CLAIMS (SEE SECTION 15).
2. Pricing. Posted prices do not include shipping and handling charges or taxes. Xylyx Bio’s invoice to Buyer will add any taxes (other than Xylyx Bio’s income taxes) and other governmental fees, assessments, duties and charges that are payable by Xylyx Bio as a result of this transaction. If Buyer is tax exempt, Buyer shall maintain any required tax exemption certificates and shall forward copies to Xylyx Bio upon request. Buyer shall bear costs for shipping and handling charges and associated insurance premiums unless otherwise indicated at the point of sale or on the Site from which the Products are ordered. Handling charges shall apply as indicated on the Site.
3. Shipments, Delivery and Inspection. Unless agreed otherwise in writing between the parties, Products shall be shipped CPT Buyer’s facility (Incoterms 2000) with freight collect, as applicable. Products shall be deemed to be delivered, and title and risk of loss will pass to Buyer, when Xylyx Bio places the Products with the carrier for shipment to Buyer. Xylyx Bio shall use commercially reasonable efforts to promptly deliver Products to Buyer, but shall not be bound by delivery dates specified in Buyer’s purchase order, and delivery shall not be “of the essence” unless otherwise expressly agreed by the Parties. Item are typically shipped within five (5) business days. A confirmation email with an anticipated delivery date is sent to the Buyer once the item is placed with the carrier. Products may be shipped in multiple lots of similar Products as reasonably determined byXylyx Bio. Nonconformity or defect in any individual lot will not be considered to constitute a breach of Buyer’s entire order, and Buyer shall be liable for payment for conforming products received.
4. Payment. If the full payment of the purchase price is not received within 30 days after the shipment date, or such other time as may be specified on the Site, Xylyx Bio may charge interest on any unpaid balance at a rate of up to 1½% per month (or the highest rate permitted by applicable law, if lower) after the applicable due date. Buyer shall be liable for any costs reasonably incurred by Xylyx Bio for collection costs, expenses and reasonable attorneys’ fees for collection of any overdue amount. Xylyx Bio may suspend or cancel deliveries of ordered Products if Buyer has an overdue balance, or if Buyer refuses to provide reasonable assurance of performance of Buyer's payment obligations upon request by Xylyx Bio.
5. Return and Cancellation Policy. Any order by Buyer may be cancelled, changed or returned only with the prior consent of Xylyx Bio. To cancel an order, Buyer may contact customer support by email (firstname.lastname@example.org) or by phone 212 689 9005. Once shipped, orders cannot be canceled. Returned products become the property of Xylyx Bio. Returned products must be received by Xylyx Bio in salable condition with a Return Authorization Number and in their original packaging, except for any defects giving rise to the item’s return. Used, opened or modified Products are not eligible for return. When Products are authorized to be returned for any reason other than for breach of warranty, the amount of credit will be subject to a minimum restocking charge of 20%. Returned Products must be sent by FedEx Priority or Standard overnight on dry ice, prepaid to the appropriate address indicated by Xylyx Bio.
6. Exclusion of Warranties; Inspection and Claims. There will be no refunds for any reason. All merchandise sold by Xylyx Bio is sold “as is” without any warranty or guarantee of any kind whatsoever. By making a purchase with Xylyx Bio, you are confirming that you agree to this no refunds policy.
EXCEPT AS OTHERWISE SPECIFIED IN THESE TERMS, XYLYX BIO MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING THE PRODUCTS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. NO EMPLOYEE, AGENT, OR REPRESENTATIVE OF XYLYX BIO IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY ON BEHALF OF XYLYX BIO EXCEPT TO THE EXTENT EXPRESSLY STATED IN THESE TERMS.
7. Limitation of Liability. XYLYX BIO SHALL NOT IN ANY EVENT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, OR OTHER INDIRECT DAMAGES OR COST OF “COVER” ARISING OUT OF THE SELECTION, ORDERING, PURCHASE, USE, RESALE OR DISTRIBUTION OF PRODUCTS FROM XYLYX BIO, OR OTHERWISE, WHETHER BASED ON BREACH OF WARRANTY OR CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF XYLYX BIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, XYLYX BIO WILL NOT BE LIABLE FOR LOSS OF PROFITS, SAVINGS OR REVENUE; DAMAGE TO REPUTATION; LOSS OF USE OF A PRODUCT OR ANY ASSOCIATED EQUIPMENT; COST OF CAPITAL; COST OF ANY SUBSTITUTE GOODS, EQUIPMENT, FACILITIES OR SERVICES; DOWNTIME; OR CLAIMS OF THIRD PARTIES ARISING OUT OF THE USE, INABILITY TO USE, UNAUTHORIZED ACCESS TO OR USE OR MISUSE OF XYLYX BIO PRODUCTS.
XYLYX BIO’S AGGREGATE LIABILITY FOR ALL CLAIMS ARISING FROM THESE TERMS SHALL NOT EXCEED THE PURCHASE PRICE OF THE RELEVANT PRODUCTS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO BUYER BUT SHALL INSTEAD APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
8. Force Majeure and Products “Out of Stock.” Xylyx Bio will not be liable for loss or damage resulting from any delay in delivery or failure to supply ordered Products or otherwise carry out its obligations under these Terms due to causes beyond its reasonable control, and no such event will relieve Buyer of its obligations to make payments otherwise due to Xylyx Bio for delivered Products. Xylyx Bio reserves the sole right, without liability to Buyer, to reasonably allocate its production capacity and Product inventories as may be necessary or equitable at any time to manage any shortages of production capacity or Products. When items become out of stock due to inventory fluctuations (even if the Site appears to indicate “in-stock” at the moment of ordering), Xylyx Bio will notify Buyer that the order will be placed on backorder, and Buyer will be given an opportunity to cancel the order for the backordered items.
9. Discounts and Rebates. The value of any discounts and rebates extended by Xylyx Bio are intended to be discounts or price reductions in accordance with 42 U.S.C. Section 1320a-7b(b)(3)(A) and 42 C.F.R. Section 1001.952(h). Buyer shall record and report any discounts or rebates, with other relevant information, to appropriate governmental authorities or other payers, as applicable.
10. Legal Compliance. Buyer shall comply with all federal, state and local laws or regulations applicable to any activities relating to Products purchased under these Terms, and shall indemnify and hold harmless Xylyx Bio for any and all claims, damages, penalties, assessments and liabilities imposed upon East River BioSolutions arising from or relating to Buyer’s failure to so comply.
11. Assignment. Buyer’s rights and/or obligations under these Terms shall not be assigned without Xylyx Bio’s prior written consent, and any unauthorized assignment shall be considered void and without any effect whatsoever.
12. Amendments. These terms and conditions may be amended by Xylyx Bio at any time. Xylyx Bio reserves the right to modify or discontinue any of its Products at any time with or without prior notice.
13. No Third Party Beneficiary. Nothing in these terms and conditions is intended to benefit any person other than the Buyer and East River BioSolutions.
14. Governing Law. These Terms and any related claims or disputes shall be governed by the laws of the State of New York, excluding conflict of law provisions and without regard to the U.N. Convention on Contracts for the International Sale of Goods.
15. Disputes; Agreement to Arbitrate; Waiver of Class Action. Any disputes between Xylyx Bio and Buyer (whether or not such dispute involves a third party) arising out of or relating to these Terms shall be finally resolved by arbitration before a single arbitrator conducted in the English language in New York, New York, U.S.A. under the Commercial Arbitration Rules of the American Arbitration Association (AAA), and Buyer and Xylyx Bio hereby expressly waive trial by jury. Xylyx Bio and Buyer shall appoint as sole arbitrator a person mutually agreed by the parties or, if the parties cannot agree within thirty (30) days of either party’s request for arbitration, such single arbitrator shall be selected by the AAA upon the request of either party. The parties shall bear equally the cost of the arbitration (except that the prevailing party shall be entitled to an award of reasonable attorneys’ fees incurred in connection with the arbitration in such an amount as may be determined by the arbitrator). All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction in the State of New York. Not withstanding this, application may be made to any court for a judicial acceptance of the award or order of enforcement. Under no circumstances shall the arbitrator be authorized to award damages, remedies or awards that conflict with these Terms, including, without limitation, the provisions of Section 7. Any claims brought by either party must be brought in that party’s own behalf, and not as a plaintiff or class member in any purported class or representative proceeding. Neither party will participate in a class action or class-wide arbitration for any claims covered by these Terms. Buyer hereby waives any and all rights to bring any claims related to these Terms as a plaintiff or class member in any purported class or representative proceeding. Notwithstanding any provision in these Terms to the contrary, Xylyx Bio and Buyer agree that if Xylyx Bio makes any change to the arbitration procedures described herein (the “Arbitration Procedures”) (other than a change to any notice address or Site link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the change. Moreover, if we seek to terminate the Arbitration Procedures from these Terms, such termination shall not be effective until thirty (30) days after the version of these Terms not containing the Arbitration Procedures is posted to Xylyx Bio’s Site, and shall not be effective as to any claim that was filed in a legal proceeding against Xylyx Bio prior to the effective date of removal. This arbitration section will survive the termination of the relationship between Buyer and Xylyx Bio.
Updated: November 30, 2018