Standard Terms and Conditions
1. SCOPE
The terms and conditions stated herein (this “Agreement”) govern the purchase, sale, and delivery of all products, services, software, components, spare parts, or any combination of the foregoing (“products”) by Biomated Solutions LLC (collectively, “we,” “us,” “our,” or “seller”) to you or the entity you represent (“you” or “buyer”). Biomated and Buyer are collectively referred to herein as “the parties.”
Biomated offers its own product for sale, as well as engineering design/consulting services for your projects that are often novel or complex. Buyer must specify the scope of any project in as much detail as possible, especially projects that are experimental or otherwise based on untested ideas/techniques. Buyer must provide all available information relevant to the design and development of a project to Biomated, as well as an appropriate scope of project. Failure(s) by buyer to provide Biomated with accurate, relevant information may unduly delay the finalization of any customized design, product, or services. Buyer understands that unknown factors, including by not limited to component/part unavailability, may delay project completion/development. Biomated will use reasonable efforts to meet the quoted benchmarks, and to complete designs for and otherwise develop experimental projects. Buyer may be asked to replenish retainer amounts from time-to-time, in part to pay for project expenses. Buyer agrees that any changes in project scope may lead to additional costs to the Buyer.
If Biomated learns that a project is futile or otherwise fundamentally flawed, it will notify buyer as soon as practicable. In the event of such futility or fundamental issue(s), buyer is nevertheless responsible for payment for work completed (and any expenses incurred) by Biomated.
You represent to us that you are lawfully able to enter into contracts. If you are entering into this Agreement for an entity, you represent to us that you have the legal authority to bind that entity.
Unless otherwise agreed to in writing by Biomated, any terms and conditions contained in buyer’s purchase order or any other document that are different from or in addition to these terms and conditions are objected to, are rejected, and will not be binding on Biomated.
Failure to object to any provision contained in a communication from Buyer shall not be a waiver of these terms and conditions herein.
By placing an order for products from Biomated, or by accepting delivery of the products described on the applicable packing slip, bill of lading and/or invoice received with the product(s), you agree to be bound by and accept these terms and conditions of sale.
By placing an order for services from Biomated, you agree to be bound by and accept these terms and conditions of engaging Biomated’s services.
We may change the terms and conditions of this Agreement in our sole discretion by posting an updated version of these terms and conditions on our website and/or by delivery to you; provided, however, that the terms and condition of this Agreement in effect as of the date of an applicable order shall continue to govern such order and the products purchased thereunder.
2. ORDER ACCEPTANCE
Your receipt of an email or other form of order confirmation does not constitute our acceptance of your order or a confirmation of an offer to sell or provide services. We reserve the right, without prior notification, to limit the order quantity on any item, limit the scope of services, and/or refuse service to anyone. All orders and engagements are subject to review and acceptance by us. You agree to provide complete and accurate contact information in connection with any order submitted to us. Verification of information may be required prior to the acceptance of any order.
In the case of both goods and services, order acceptance is designated by written acceptance from Biomated and/or by performing activities unique to the order (e.g., design work, material purchase).
3. ORDER CANCELLATION
All orders are both Non-Cancelable and Non-Refundable (“NC/NR”). In the event of cancellation or other withdrawal of an order for any reason and without limiting any other remedy as a result of such cancellation or other withdrawal, reasonable cancellation or restocking charges, which shall include all expenses then incurred and commitments made by seller, shall be paid by buyer.
Buyer’s requests to reschedule are subject to acceptance by seller in its sole discretion. Orders may not be rescheduled after the order has been submitted by seller to the shipment carrier.
4. PRICES
Orders are billed at the prices specified within the seller’s quote or proposal in US Dollars (USD). If no period is specified, quoted prices will be applicable for thirty (30) days. Prices are exclusive of taxes, impositions and other charges.
5. TERMS OF PAYMENT
100% of the invoiced amount is due in U.S. Dollars within 10 days from date of invoice, unless otherwise agreed by the parties, in writing. All payments must be in US Dollars or will be converted to US Dollars using seller’s standard exchange rate at the time of purchase. Payment via additional terms is available to businesses, subject to credit approval.
Most major credit cards are accepted. All credit card transaction fees will be paid by the buyer and applied to the invoice total.
Notwithstanding anything to the contrary in this Agreement, seller may add or remove payment options in seller’s sole discretion.
Buyer acknowledges that seller has the right to reassess buyer’s creditworthiness from time to time. To the extent such is in accordance with law, in the event there is a decline in buyer’s creditworthiness, seller may, upon written notice, revise the payment terms between the parties. Upon request, buyer shall provide financial data evidencing the buyer’s worth in order for seller to determine the creditworthiness of buyer. Such information shall include, but not be limited to, annual reports, balance sheets, and bank records.
If buyer is delinquent in its payment obligations, without prejudice to any other remedies available to it by law or in equity, seller may demand immediate payment and at seller’s option (i) suspend all further deliveries to be made under the purchase order or any further performance under any other contract with buyer or buyer’s affiliates, in which event buyer shall not be released in any respect from its obligations to seller under the purchase order; (ii) recover all costs of collection including but not limited to reasonable attorneys’ fees; (iii) repossess the product for which payment has not been made; (vi) charge interest at 1.5% per month on the past due amount, not to exceed the interest percentage allowed by law; and (vii) reassess the credit worthiness of buyer and change any current payment terms. Any discount from seller’s rates, if any, shall cease to apply to the delinquent invoice, buyer shall be invoiced for such differences in cost, and shall immediately pay the resulting invoice.
6. TAXES AND DUTIES
Any taxes related to the products purchased are the responsibility of buyer (excluding taxes based on seller’s net income) unless buyer presents an exemption certificate acceptable to seller and the applicable taxing authorities. If any exemption certificate presented by buyer is held to be invalid, then buyer will pay seller the amount of the tax and any penalties and interest related thereto.
If possible, seller will bill taxes as a separate item on the invoice presented to buyer.
Sales tax will be charged on product cost and shipping & handling where applicable and required by law. Any sales tax due that is not collected by the seller is the responsibility of the buyer.
International orders may be subject to various taxes and duties in the country of destination, all of which are the full responsibility of the buyer. This includes sales, use, excise, value added and similar taxes or charges imposed by any government authority, international shipping charges, forwarding agent’s and broker’s fees, bank fees, consular fees, document fees and import duties.
7. DELIVERY AND TITLE
Unless otherwise agreed to in writing, Buyer pays for all product shipping costs. Biomated arranges for shipping in Biomated’s sole discretion, unless the parties agree otherwise in writing. Buyer may purchase shipping insurance for the product if buyer so desires. Subject to Biomated’s right of stoppage in transit, delivery of the products to the carrier will constitute delivery to Buyer and title and risk of loss will pass to Buyer.
Biomated will make reasonable efforts to initiate shipment and schedule delivery as close as possible to Buyer’s requested delivery date(s). Buyer acknowledges that delivery dates provided by Biomated are estimates only and that Biomated will not be liable for failure to deliver on such dates.
Biomated reserves the right to make deliveries in installments. Delay in delivery of one installment will not entitle Buyer to cancel any other installment(s). Delivery of any installment of products within thirty (30) days after the date requested will constitute a timely delivery. Delivery of a quantity that varies from the quantity specified shall not relieve Buyer of the obligation to accept delivery and pay for the products delivered.
Deliveries shall be made during normal business hours Monday through Friday. One attempt to deliver will be made. Should delivery need to be rescheduled, any additional costs incurred for redelivery and/or storage fees will be charged to the buyer. Biomated shall use reasonable efforts to make timely deliveries, but shall be excused from any delays arising out of causes beyond its reasonable control. Any specific delivery dates that may be stated are approximate.
Biomated shall not be liable for non-delivery or delay in performance when such delay is directly or indirectly caused by, or in any manner arises from, delay or failure to deliver by Biomated’s suppliers, vendors, third parties, as well as any fires, floods, accidents, riots, war, acts of terror, governmental interference or embargoes, strikes or shortage of labor, or other causes (whether or not similar to those specified) beyond Biomated’s control. Delivery shall be deemed suspended so long as such causes delay performance. Biomated agrees to make, and Buyer will accept, deliveries at a reasonable time after remedy of such causes.
If completion of delivery is prevented through no fault of Biomated, Biomated may specify a reasonable alternative place of delivery. Buyer agrees that all costs of storage and transport incurred following an initial attempt at delivery are hereby allocated to and imposed upon buyer, and shall be added by seller to the sale price. Delivery may at any time be withheld by Biomated pending payment of any sum due from the buyer to Biomated. Biomated will return product via the incoming method unless an alternative method has been indicated on the purchase order or a change authorized by the buyer.
8. LIMITED WARRANTY
Products manufactured by Biomated are warranted for a period of one year from date of delivery against defects in workmanship or materials or failure to operate under normal use as described in product specifications documents, buyer’s instructions, or specifications. In some cases, the warranty period may exceed one year where a written warranty description specific to a certain product is stated in a contract. Accessories and consumable goods such as batteries, chargers and accessory cables are warranted for two months.
The warranties set forth in this Section shall not apply to any defect, failure, or damage arising from or in connection with: (i) improper use, or improper or inadequate maintenance and care; (ii) modifications to or repairs of the products performed by any party other than seller; (iii) combination of the products with any other technology, equipment, hardware, software, or other materials; (iv) use of the products in an environment not meeting the operating specifications for the products; (v) failure to properly transport, prepare, and store the products; (vi) acts of God; or (vii) any normal wear and tear or normal environmental degradation.
Products solely distributed by Biomated without alteration, or products purchased by seller for integration into another product carry the warranty of the respective manufacturer only.
Biomated will at Biomated’s option and in Biomated’s sole discretion, repair, replace or refund any products that are returned under warranty, and Seller’s repair, replacement, or refunding of the price paid for a product under warranty shall be Biomated’s sole liability, and buyer’s sole remedy, for any breach of the warranties herein. This warranty applies to the original purchaser only and is not transferable. This warranty does not cover damage incurred during shipment.
Buyer will bear the costs of access, de-installation, re-installation and transportation of the products to Biomated and back to buyer in connection with any warranty claims. Biomated will reimburse the costs of transportation to Biomated and bear the costs of returning the repaired product or sending replacement product to buyer if the product is found to be covered under warranty. Biomated assumes no risk for damage in transit.
Any repair or replacement pursuant to this limited warranty for products manufactured and/or branded by Biomated shall be warranted against the same defects re-occurring in a period of 12 months from time of delivery of the repaired or replaced product, or until the expiration of the original product warranty, which ever shall be the latter.
This limited warranty and remedies are expressly conditioned upon: (i) buyer’s payment of the purchase price in full, (ii) buyer giving written notice of the defect, reasonably described, to seller within ten (10) days of the time when buyer discovers or ought to have discovered the defect, (iii) the storage, installation, operation, use, and maintenance of the products in compliance with product instructions, (iv) the existence of proper records of buyer’s operation and maintenance of the products during the warranty period, (v) buyer providing seller with a reasonable opportunity to examine the products and the aforementioned records, and (vi) the absence of any unauthorized modification or repair of the products, including without limitation the removal or alternation of any serial numbers or product identifications.
This warranty is in lieu of any and all other warranties, whether oral, written, expressed, implied or statutory. Any implied warranties of merchantability, fitness for a particular purpose and non-infringement are hereby disclaimed.
Warranty is void if any warranty-void stickers are broken. Biomated does not warrant that products will be error free or operate without interruption.
9. ORDER DISCREPANCIES
Claims for shortages, incorrect materials or invoicing errors must be made by buyer in writing within ten (10) business days after receipt of shipment. Claims for nonreceipt of shipment must be made in writing within ten (10) business days after receipt of invoice. No products shall be returned without seller’s express instructions. Buyer must provide in writing the order number and describe all defects associated with the order.
Biomated is not responsible for any material, design or other error attributable (in whole or in part) to inaccurate or ambiguous information, software, code or materials provided by Buyer. Buyer is responsible for providing accurate, appropriate, unambiguous and complete data, specifications, scope and other information/materials to Biomated. Biomated materially relies on such information provided by Buyers. Any changes, ambiguities, or discrepancies in data, specifications, scope and/or other information by Buyer may result in delays, change of scope, project futility, or additional expenses to be borne by Buyer. Correcting any issues due to Buyer’s such failure to provide accurate information and/or work outside the project’s scope may, in Biomated’s discretion, result in the Buyer being charged Biomated’s customary hourly rates for any resulting corrective work.
10. LIMITATIONS OF LIABILITIES; INDEMNITY
In no event will Biomated be liable to buyer or to any third party for any delay, failure to give notice of delay, loss of use, security or data breach, loss of revenue or profit or loss of data, recall costs, service interruptions, downtime, testing, installation, replacement, or removal costs, or for any consequential, incidental, indirect, exemplary, special or punitive damages, whether arising out of breach of contract, tort (including negligence), or otherwise, regardless of whether such damage was foreseeable and whether or not seller has been advised of the possibility of such damages. Biomated’s aggregate liability for any claims arising out of or in connection with this agreement shall not exceed the purchase price paid by buyer for the products which are the subject of the claim. The disclaimers and limitations in this section will apply notwithstanding any failure of essential purpose of any limited remedy and to the maximum extent permitted under applicable law.
Buyer shall defend Biomated from and against any claims, actions, proceedings, or suits brought by any third party (i) alleging infringement of intellectual property rights arising out of or in connection with Biomated’s compliance with buyer’s drawings, specifications, requirements or instructions or (ii) arising out of or in connection with the products supplied by Biomated and incorporated into the buyer’s products (each a “Claim”) and shall indemnify and hold harmless Biomated from any costs, liabilities, damages, fines, judgments, or expenses (including reasonable attorneys’ fees) arising out of or in connection with any Claim.
Buyer represents and warrants that Buyer has its own liability insurance coverage.
In no event will Biomated be liable to buyer for any damage to buyer’s provided materials and/or property.
11. EXPORT COMPLIANCE
Items may be controlled by the U.S. Government and authorized for export only to the country of ultimate destination for use by the ultimate consignee or end-user(s) identified in the invoice. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end-user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the U.S. Government or as otherwise authorized by U.S. law and regulations. Buyer agrees to comply with all applicable export control laws, restrictions and regulations of the United States, and shall not export, or transfer for the purpose of re-export, any product to any embargoed country or region, including but not limited to Cuba, SPAIN the Crimean Region of Ukraine, the Donetsk People’s Republic, the Luhansk People’s Republic, Iran, North Korea, and Syria, or to any denied, blocked, or designated person or entity as mentioned in any such United States law or regulation. Buyer represents and warrants that it is not on the Denied Persons, Specially Designated Nationals or Debarred Persons List, as identified by the U.S. Treasury Office of Foreign Asset Control (OFAC) and by the U.S. Department of Commerce, Bureau of Industry and Security (BIS), or any other United States list of prohibited persons; is not owned or controlled by any person that is on the OFAC list, or is otherwise prohibited by United States law from purchasing the products or services hereunder. Buyer shall be solely responsible to obtain any license to export, re-export or import as may be required. Buyer also agrees that it will not use these products in connection with the proliferation of weapons of mass destruction, including missiles, nuclear, chemical or biological weapons.
Biomated shall not be liable for delays or refusals by governmental authorities or other authorities to grant licenses or approvals, nor for suspension or revocation thereof, nor for changes in export classification. Buyer must deliver requested information, including requested end-user information, necessary for export licenses to be granted, and or necessary for seller to determine if a license or other type of authorization is required.
Buyer shall provide seller with export classification information for all buyer property and information (including buyer drawings) delivered to Biomated in relation to this order. Export classification information includes the applicable export control classification, the country of origin and, for hardware only, the Harmonized Tariff Code. For such custom orders, seller will supply buyer with similar export classification information for products and/or information for which seller has design authority. Buyer and Biomated will promptly notify the other upon a change in classification information if any occurs prior to delivery.
12. GOVERNING LAW; VENUE
All matters arising out of or relating to this agreement, or a breach thereof, are governed by and construed in accordance with the internal laws of the State of New Jersey without giving effect to any choice or conflict of law provision or rule (whether of the State of New Jersey or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New Jersey.
Any legal suit, action or proceeding arising out of or relating to this agreement, or a breach thereof, will be instituted in the federal or State courts located in Morris County, New Jersey. Each party irrevocably submits to the exclusive jurisdiction of the courts in any legal suit, action or proceeding.
13. LEGAL NOTICES
Any legal notice sent to seller from buyer, required or permitted hereunder, will be deemed to have been effectively delivered if in writing and served by personal delivery or sent by registered or certified mail with return receipt requested, postage prepaid, to seller at the primary address specified as seller’s place of business.
14. INTELLECTUAL PROPERTY
Buyer agrees that any and all intellectual properties including, but not limited to, all ideas, concepts, themes, computer programs, parts of computer programs, documentation, literature, or illustrations, conceived, developed, written, or contributed by Biomated, either individually or in collaboration with others, pursuant to this Agreement, shall belong to and be the sole property of Biomated.
Buyer agrees that all rights in all works prepared or performed by Biomated pursuant to this Agreement, including patent rights and copyrights applicable to any of the intellectual properties described herein, shall belong exclusively to Biomated,
Buyer warrants that any materials provided by Buyer for use by Biomated pursuant to this Agreement shall not contain any material that is protected under the Copyright Act or any other similar law, except to the extent of “fair use,” as that concept is defined in the Copyright Act. Buyer shall be solely responsible for ensuring that any materials provided by Buyer for use by Biomated pursuant to this Agreement satisfy this requirement. Buyer agrees to hold Biomated harmless from all liability or loss, including debt or expense for attorneys’ fees to which Biomated is exposed on account of Buyer’s failure to perform this duty.
The parties agree that open source code or other similarly free and public software or programs are not proprietary. Biomated does not purport to own or sell such open source code/software/programs. Biomated provides an unlimited, lifetime license to use such open source code, software and/or programs.
Notwithstanding delivery of and the passing of title in any product, nothing in these terms and conditions shall have the effect of granting or transferring to, or vesting in, buyer any intellectual property rights in or to any products.
The drawings, text, product depictions, logos, content, product descriptions, and other documents and media owned by Biomated and of the described content there within are proprietary to Biomated and protected by intellectual property laws, including but not limited to United States Copyright law and United States Trademark law. Whether Biomated owns copyrights in these works or not, their content and the selection, arrangement, coordination and structure of the arranged content there within are the sole property of Biomated. Use of the above stated materials does not give anyone the right to modify, reproduce, transmit, publish, publicly display, adapt, or create derivative works or in any way exploit any of the materials without express written permission of Biomated.
Biomated makes no representation or warranty that the products (or buyer’s use or exploitation thereof) will not infringe any intellectual property rights.
15. SOFTWARE
To the extent that the product or services contain or are software, seller hereby grants to buyer a non-exclusive, non-transferable license to use the software and related documentation on a single unit of product. Buyer’s use conclusively evidences its acceptance of this license. Title to the software shall at all times remain with Biomated. Buyer agrees that the software, all enhancements, related documentation, and derivative works are, and will remain the sole property of Biomated and includes valuable trade secrets. Buyer agrees to treat the software and related documentation as confidential and to not copy, reproduce, sub-license, or otherwise disclose the software and related documentation to third parties. Buyer agrees to not disassemble, decompile, reverse engineer, create derivative works from or otherwise translate, customize, localize, modify, add to, or in any way alter, rent, or loan the software or related documentation unless the operation is specifically authorized by law.
Third party product software Licenses are separate end user license agreements (“EULA”) and not issued pursuant to the above stated personal license.
Some software Biomated develops may utilize other open source and separately licensed software packages. Unless specified in the quote or proposal, Biomated may not provide any third party software licenses (including but not limited to runtime engine or development environment licenses). Buyer acknowledges that use or distribution of software may require software licenses from third party vendors.
Buyer agrees to defend, indemnify and hold harmless Biomated from all damages and third-party claims arising from unauthorized use or transfer of the software or firmware.
If the software is licensed for use in the performance of a U.S. Government prime contract or subcontract, buyer agrees that consistent with (or any other applicable laws), commercial computer software, computer software documentation and technical data for commercial items are licensed under Biomated’s standard commercial license.
16. PRODUCT REGULATORY COMPLIANCE
Unless otherwise agreed to by the parties, in writing, custom engineered products are not declared to be compliant with any government or third party specifications, including but not limited to the federal communications commission (FCC), Underwriter’s Laboratory (UL), CE markings, etc.
17. CONFIDENTIAL INFORMATION
Buyer agrees that all confidential information furnished by or obtained from seller in connection with the sale of items hereunder (including product data and manufacturing process data) shall be adequately safeguarded to prevent unauthorized disclosure. Buyer agrees not to (i) disclose any such information to any other person or entity, or (ii) use such information for any purpose, other than performing authorized activities directly related to the governing contract.
Buyer shall maintain the confidentiality of any Proprietary Materials and Information and not use them except for purposes of doing business with Biomated. Buyer will not use the Proprietary Materials and Information for its own purposes or on behalf of others unless expressly permitted in writing by Biomated. Buyer will not disclose Proprietary Materials and Information to any third party, including employees, except for disclosures that are required for the purpose of performing the work that Buyer has agreed to do for Biomated (“Work Related Disclosure”). Buyer will only make a Work Related Disclosure to someone who agrees to the same restrictions on disclosure and use of the Proprietary Materials and Information that Buyer has agreed to in this Agreement. Buyer will be responsible to Biomated for any improper disclosure or use of the Proprietary Information by anyone receiving a Work Related Disclosure.
Proprietary Materials and Information shall include any and all materials provided or information that Buyer is exposed to including, without limitation, potential products, production fixtures, and testing equipment, technical information, tools tooling designs, engineering specifications, manufacturing technology, and product engineering designs. Proprietary Materials and Information shall also include Biomated’s owned or licensed programs, source code, information concerning Biomated’s trade secrets, data, methods, processes, procedures, networks, access and passwords resident on networks or computer systems, any other confidential, financial, or business information, all information clearly marked as confidential, and all third party information accessible on or via Biomated’s networks, systems, interfaces, and Internet links.
All information and materials furnished by Biomated to Buyer shall be returned by Buyer to Biomated on Biomated’s request.
Buyer shall have no obligations with respect to any Proprietary Materials and Information which (a) is now or later becomes publicly known unless it later becomes publicly known because Buyer or someone receiving a Work Related Disclosure breaches the duties specified in this Agreement, or (b) Buyer learns from someone who is legally entitled to disclose the information without breaching any duties to Biomated.
Nothing in this agreement shall restrict the right of either party to disclose Confidential or Proprietary Information that is ordered disclosed under judicial or other lawful governmental action, but only to the extent so ordered. If Buyer is ordered to disclose such information, Buyer agrees to give Biomated written notice of the order within five days.
18. ASSIGNMENT
Buyer shall not assign this Agreement or any order hereunder without the prior written consent of Biomated. Any assignment in violation of the foregoing will be void and of no force or effect. Biomated may assign this Agreement or any order hereunder in Biomated’s sole discretion and without restriction. This Agreement will be binding upon and inure to the benefit of the parties, their successors, and permitted assigns.
19. RELATIONSHIP
Nothing in in this Agreement or any product or service orders shall be construed to place the buyer or Biomated in the relationship of partners or joint ventures, and the buyer and Biomated shall have no power to obligate or bind the other in any manner whatsoever.
20. WAIVER
No waiver by Biomated of any breach of this Agreement by the buyer shall be considered as a waiver of the subsequent breach of the same or any other provision.
21. SEVERABILITY
If any provision or portion of this Agreement shall be adjudged invalid or unenforceable by a court of competent jurisdiction or by operation of any applicable law, that provision or portion of this Agreement shall be deemed omitted and the remaining provisions and portions shall remain in full force and effect.
22. LIENS AND TITLE
Buyer hereby grants to Biomated a security interest in any property owned by the buyer (including buyer’s beneficial rights to property leased by Biomated) in the possession of Biomated, or it’s vendors, at any time, to secure all amounts owed by buyer to seller under this Agreement.
In the case of repairs performed pursuant to this Agreement, buyer grants Biomated a perfected security interest in all products retained in possession of Biomated upon which any repair or overhaul services have been performed by Biomated. Buyer further acknowledges and agrees that, in addition to the security interest and lien expressly granted by buyer to Biomated, Biomated shall have a lien on the product retained in possession of Biomated to the extent otherwise provided by law. Buyer acknowledges that the lien (whether granted by buyer or through the operation of law) for repairs or overhaul shall be for the full value of such work, and shall be superior to any lien or interest in favor of buyer, its parents, affiliates, or subsidiaries, or any other person who has knowledge of this Agreement. To the extent that Biomated maintains possession of product under repair, buyer agrees that Biomated is a secured creditor of buyer and has all the rights of a secured creditor.
With respect to products sold pursuant to this Agreement, buyer agrees and acknowledges that Biomated shall retain a security interest in such product, unless and until all payment for such products has been made and all other covenants and agreements of this Agreement have been performed in full.
Accordingly, buyer agrees that it will not suffer or permit any lien or encumbrance to be established that effects the title to the product sold by Biomated pursuant hereto until Biomated has been paid in full. Buyer agrees that, in the event of buyer’s insolvency, or in the event that any petition is filed by or against buyer under Chapter 7 or Chapter 11 of the Bankruptcy Code, Biomated may, at its discretion, recover all products sold pursuant to this Agreement and/or seek damages or costs under applicable laws.
23. FORCE MAJEURE - EXCUSABLE DELAY
Notwithstanding anything else in this Agreement, no default, delay, or failure to perform on the part of Biomated will be considered a breach of this Agreement if such default, delay, or failure to perform is shown to be due to causes beyond reasonable control of seller, including, but not limited to, causes such as strikes, lockouts or other labor disputes, riots, civil disturbances, actions or inactions of governmental authorities or suppliers, epidemics, war, embargoes, insurrections, flood, work stoppages, embargoes, pandemics, severe weather, fire, earthquakes, acts of God or the public enemy, nuclear disasters, or default of a common carrier.
24. ENTIRE AGREEMENT; CONSTRUCTION; SURVIVAL
This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein and supersedes all prior and contemporaneous communications, representations, discussions, and agreements between the Parties with respect to such subject matter. The titles and section headings used in this Agreement are for ease of reference only and shall not be used in the interpretation or construction of this Agreement. No rule of construction resolving any ambiguity in favor of the non-drafting party shall be applied hereto. The word “including”, when used herein, is illustrative rather than exclusive and means “including, without limitation.” In the event of any termination or expiration of this Agreement, buyer’s obligations to pay amounts due hereunder and arising prior to the date of termination or expiration shall survive such termination or expiration.
25. TERMINATION
If either party shall at any time commit any breach of any covenant, warranty, or promise in this Agreement, and shall fail to remedy any such breach within thirty days after written notice by the other party, such other party, at its option, and in addition to any other remedies that it may be entitled to, may immediately terminate this Agreement by written notice to such effect.
Biomated may terminate the services hereunder at any time for its convenience. In the event of termination for convenience, Buyer shall remit payment for work performed up to the time of such termination and shall be responsible for reimbursement of expenses incurred up to the date of termination, in each case, in accordance with the Specifications.
In the event of any adjudication of bankruptcy, appointment of receiver by a court of competent jurisdiction, assignment for the benefit of creditors, or levy of execution directly involving either party, the other party may, at its option, terminate this Agreement on ten days’ written notice to the affected party.
A waiver by either party of any breach of any provision of this Agreement by the other party shall not be considered as a continuing waiver by said party of other breaches of the same or other provision of this Agreement.
26. INDEPENDENT CONTRACTOR STATUS
Nothing contained in this Agreement is intended or is to be construed so as to constitute (1) Buyer and Biomated as partners or joint venturers, or (2) the employees, agents, or representatives of Buyer as employees, agents, or representatives of Biomated, or (3) the employees, agents, or representatives of Biomated as employees, agents, or representatives of Buyer. It is intended that the relationship of Buyer to Biomated shall at all times be that of an independent contractor. No party to this Agreement shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or undertaking with any third party.
27. COMPLIANCE WITH APPLICABLE LAWS
Buyer agrees that in carrying out its duties and responsibilities under this Agreement, it will neither undertake nor cause to be undertaken, any activity which either is illegal under any laws, decrees, rules, or regulations in effect in either the United States or any other applicable country or would cause Fellowes to be in violation of any laws, decrees, rules, or regulations in effect in any such country.
Buyer represents and agrees that it has not offered, given, promised to give or authorized giving, and will not offer, give, promise to give or authorize giving, directly or indirectly, any money or anything else of value to any government official, political party, political official or candidate for political office in connection with any of its activities hereunder.