Terms & Conditions
1. Acceptance and Scope of these terms
1.1 The following terms and conditions (“T&C”) shall apply to all sales of products and services provided by Venogen Limited (“Venogen”) to the customer (“Purchaser”).
1.2 These T&C shall overrule any conflicting terms contained on Purchaser’s purchase order or any document or instrument submitted by Purchaser unless agreed to in writing by Venogen.
1.3 Any of the following shall constitute Purchaser’s acceptance of these T&C: (i) written acknowledgement of these T&C; (ii) issuance or assignment of a purchase order for the product(s) or services thereunder; (iii) acceptance of any shipment or delivery of product(s) or provision of services thereunder; (iv) payment for any of the product(s); or (v) any other act or expression of acceptance by Purchaser.
2. Binding Contract, Changes, Cancellations
2.1 A binding contract for the sale of products or services requires either (i) an offer from Venogen explicitly marked as binding, which is accepted by Purchaser in writing, or (ii) an order (oral or otherwise) from Purchaser, which is confirmed by Venogen in writing or by performance in furtherance of a submitted purchase order.
2.2 Purchaser may not cancel or change a binding contract without Venogen’s written consent. Approval of cancelations or changes may be conditional on the payment by Purchaser of costs incurred by Venogen, including, without limitation, storage or shipment costs, costs of producing non-standard materials, costs of purchasing non-returnable materials, cancellation costs imposed on Venogen by its suppliers, and any other costs resulting from cancellation. A verified bill of costs issued by an officer or other authorized representative of Venogen shall be conclusive as to the amount of such costs.
2.3 In addition to all other remedies available under these T&C or at law (which Venogen does not waive by the exercise of any rights hereunder), Venogen reserves the right to suspend or cancel any order, in whole or in part, upon Purchaser’s breach of these T&C or bankruptcy, insolvency, dissolution, receivership proceedings, or upon the occurrence of any event leading Venogen to reasonably question Purchaser’s willingness or ability to perform.
3.1 Venogen guarantees that all orders will be delivered to the final destination specified in the purchase order.
3.2 Venogen guarantees that any standard order will be dispatched from the shipping location within 1 business day of the order being placed unless specifically stated so in the accompanying contract or purchase order.
3.3 The purchaser agrees that once an order has been dispatched, it will no longer be possible to alter or cancel the order. In such a case, the Purchaser must wait until delivery to submit a claim (See “Returns” section).
3.4 The purchaser agrees to the full shipping policy located at http://venogen.com/company-policy/shipping-delivery-policy/, this policy shall be applied by default to all orders, unless otherwise stated by Purchase Order.
4.1 Delivery dates provided by Venogen in offers and order confirmations are non-binding and the time of delivery shall not be of the essence.
4.2 In the event that the courier claims the package was delivered but the Purchaser has not received it, it is the Purchaser’s responsibility to contact the courier’s local office. If the postmaster claims the package was indeed delivered correctly, it is agreed that the Purchaser will wait a period of 7 days for the package to be located. If it is not located after such a period, the purchaser will contact Venogen for a resolution. Any claim submitted using any means other than email will be considered invalid.
4.3 In the event that any missing items, wrong items, damaged items, or defective items are received. The Purchaser agrees that they will submit a claim to Venogen via email within 7 days of delivery. Any claim submitted using any means other than email will be considered invalid.
4.4 The purchaser agrees to the full Delivery policy located at http://venogen.com/company-policy/shipping-delivery-policy/, this policy shall be applied by default to all orders, unless otherwise stated by Purchase Order.
5. Returns & Refunds
5.1 All claims must be submitted to Venogen by email within 30 days after the purchase date. All returns and refunds are the sole discretion of Venogen. Any claim submitted using any means other than email will be considered invalid.
5.2 Purchaser may not return products without Venogen’s prior written consent by email, which Venogen may give or withhold at its discretion. Before any return or exchange back to our facility the Purchaser agrees to first obtain an RMA# (Return Merchandise Authorization Number) from Venogen’s support staff.
5.3 Certain products may not be returned under any circumstances. Non-returnable products may include, without limitation: diagnostic reagents; refrigerated or frozen products; reagents and standards which have passed their expiration dates; custom products or special orders. Venogen reserves the right to request a disposal instead of return, in such case, the Purchaser will dispose of the product using environmentally friendly and appropriate disposal methods, in line with their local laws. Ownership of the returned products, if already acquired by Purchaser, shall retransfer to Venogen upon delivery of the products to Venogen’s facility designated on the return authorization form. The products shall be returned in their original packaging with the original label affixed and unaltered in form and content.
5.5 The purchaser agrees to the full Refund and Return Policy located at https://venogen.com/privacy-policy/shipping-delivery-policy/, this policy shall be applied by default to all orders, unless otherwise stated by Purchase Order.
6. Prices, Taxes, Payment, Late Payments
6.1 Any quotation of prices provided by Venogen is firm only if Purchaser places a corresponding order within the time specified in the quote or, if no time period is specified, within 30 days from the date of issuance of the quote, and the Purchaser must request shipment of the entire quantity ordered within the agreed contract period following the order date unless otherwise stated in the quote. For all other purchases, the Purchaser shall purchase products and services at the prices in effect as of the delivery date.
6.2 Shipment will be made promptly even if prices have been nominally increased. Price changes will be automatically applied to Purchaser’s invoice. Notwithstanding any price quotation or prices listed by Venogen, if at any time prior to delivery Venogen‘s costs of materials have increased by ten percent (10%) or more, then Veongen may cancel any accepted but undelivered order or condition the continuance of any order on Purchaser’s agreement to a corresponding increase in price.
6.3 Unless otherwise specified by Purchase Order, all prices are given in USD.
6.4 In the event of a payment dispute, the Purchaser agrees to contact Venogen immediately via email in order to resolve the issue. If the Purchaser does not contact Venogen via email prior to filing their dispute, the purchaser agrees to withdraw their claim and assumes full liability for their claim. The Purchaser understands that if any chargeback is filed before contacting Venogen, the Purchaser’s account will immediately be terminated without review.
6.5 All prices are exclusive of any tax, duty, customs, brokerage, or other fees of any nature imposed by any governmental or quasi-governmental authority. All such taxes or fees shall be paid by Purchaser. In the event Venogen is required to prepay any such tax, the Purchaser shall fully reimburse Venogen.
6.6 Unless otherwise specified in Venogen order confirmation, the purchase price must be paid by Purchaser within 30 days from the invoice date without deduction to the bank account specified by Venogen. Venogen reserves the right to require an advanced deposit of up to one hundred percent (100%) of the purchase price at the time of order or any time prior to delivery as a condition of performance. If for any reason, in its sole and unfettered discretion, Venogen deems the ultimate collectability of the purchase price to be in doubt, Venogen may, without notice to Purchaser, delay or postpone the delivery of the products and may, at its option, change the terms of payment to payment in full or in part in advance, with respect to the entire undelivered balance of products.
6.7 Late payments shall be subject to an interest charge of eight percent (8%) per annum above the base interest rate of the Central European Bank, or the maximum rate permitted by applicable law, whichever is less. If Purchaser is in default, including, without limitation, any payment is due but unpaid, Venogen, at its option, without prejudice to any other of Venogen’s lawful remedies, may terminate the order or suspend any further deliveries to Purchaser, or sell any undelivered products on hand for the account of Purchaser and apply such proceeds as a credit, without set-off or deduction of any kind, against the agreed-upon purchase price, and Purchaser agrees to pay the balance then due to Venogen on demand. Purchaser must pay all costs of collection on unpaid amounts, including (without limitation) attorneys’ fees and related costs.
7. Purchaser’s Use of the Products
7.1 Unless explicitly stated in writing by Venogen with respect to any specific product, all Venogen products are intended primarily for laboratory research purposes only, and unless otherwise stated on product labels, in Venogen’s product directory, Purchaser has no express or implied authorization from Venogen to use the products for any other purpose, including, without limitation, in vitro diagnostic purposes, in foods, drugs, medical devices or cosmetics for humans or animals or for commercial purposes.
7.2 Purchaser represents and warrants to Venogen that Purchaser will properly test, use, manufacture and market all products purchased from Venogen and/or materials produced with products purchased from Venogen in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with all applicable laws and regulations within their jurisdiction, now and hereinafter enacted. Purchaser agrees to inform Venogen immediately of any risks resulting from products of which it becomes aware.
7.3 Purchaser understands that, since Venogen’s products are, unless otherwise stated, intended for internal laboratory research purposes only, they may not be on the Toxic Substances Control Act (TSCA) inventory. Purchaser assumes responsibility to assure that the products purchased from Venogen are approved for use under TSCA, if applicable. The purchaser has the responsibility to verify the hazards and to conduct any further research necessary to learn the hazards involved in using products purchased from Venogen. The purchaser also assumes the duty to warn its employees, those associated with Purchaser of any risks involved in using or handling the products. Purchaser agrees to comply with instructions, if any, furnished by Venogen relating to the use of the products and not misuse the products in any manner. If products purchased from Venogen are to be repackaged, relabeled, or used as starting material or components of other products, the Purchaser agrees that it will verify Venogen’s assay of the products and assume full liability. No products purchased from Venogen, unless otherwise stated, shall be considered to be foods, drugs, medical devices, or cosmetics.
7.4 Purchaser shall at all times be solely responsible for: (i) obtaining any necessary intellectual property permission for the use of the product (ii) obtaining all necessary licenses for the purchase, use, and storage of products purchased (and such licenses to be provided to Venogen upon request), (iii) compliance with any and all applicable regulatory requirements and generally accepted industry standards, (iv) conducting all necessary testing and verification, including for fitness for the intended purpose, prior to the use of the product(s) purchased from Venogen, (v) compliance with legal requirements in case products are to be disposed of by Purchaser.
7.5 Purchaser agrees that the products may not be marketed, distributed, resold, or exported by Purchaser for any purpose unless otherwise agreed by an authorized Venogen representative in writing.
8. Inspections, Warranties
8.1 The parties agree on the following duties of Purchaser in relation to inspections:
8.1.1 Purchaser shall inspect the delivered products immediately upon receipt and without delay notify Venogen of any obvious defects or missing products, no later than seven (7) days after receipt.
8.1.2 Complaints notified to forwarding agents or third parties do not constitute a notification in due form and shall therefore be deemed void.
8.1.3 Venogen shall assume no warranty or liability for any complaints of Purchaser that do not comply with the stipulations of this Clause 7.1.
8.2 With respect to all products to be delivered, Venogen warrants the following:
8.2.1 The products delivered by Venogen correspond to the applicable published specifications set forth in the catalog (electronic or otherwise), certificates provided with the products, or on the label. In case of divergences between the catalog and the label, the information on the label is decisive.
8.2.2 The specifications only relate to the substances and values specified. Statements with regard to suitability only apply when explicitly agreed by the parties.
8.2.3 Venogen does not assume any warranty for the use of the delivered products in pharmaceutical, cosmetic, or food preparations unless such use has specifically and expressly been approved by Venogen.
8.2.4 No agent, employee, or other representative has the right to modify or expand Venogen’s standard warranty applicable to the products or services or to make any representations as to the products other than those set forth in Venogen’s applicable published specifications, and any such affirmation, representation or warranty, if made, should not be relied upon by Purchaser and shall not form a part of this contract.
8.3 Any warranty provided by Venogen will not apply in the event of:
8.3.1 failure to install, use or maintain the products in accordance with any instructions, specifications, use statements, or conditions of use made available by Venogen in writing to Purchaser, such information to include but is not limited to product data, product information, limited use information, limited use label
8.3.2 use of products which are intended for research use only, for any other purpose, including, but not limited to, commercial uses, in vitro diagnostic uses, ex vivo or in vivo therapeutic uses or any type of consumption by or application to humans or animals;
8.3.3 normal wear and tear of the products, lack of proper maintenance or incorrect stocking conditions; or
8.3.4 use of the products beyond the shelf life or expiration date of the product as set forth in the applicable published specifications or labels of such products.
8.3.5 In case of any complaint in accordance with Clause 7.1, subject to the limitation period in 7.4 Venogen’s sole obligation shall be to repair or replace, at its option, the applicable product or part thereof. If after exercising reasonable efforts, Venogen is unable to repair or replace the product or the part, then Venogen shall provide a credit on Purchaser’s account for all monies paid for such applicable product or part.
8.4 The warranties set forth in this Clause 7 shall be provided by Venogen for the particular instrument supplied under the relevant agreement or purchase order and for the warranty period as stated in the said agreement or purchase order.
8.5 OTHER THAN THE WARRANTIES PROVIDED HEREIN, VENOGEN AND ITS AFFILIATES MAKE NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. VENOGEN MAKES NO REPRESENTATION OR WARRANTY THAT THE PRODUCTS OR THE USE THEREOF WILL NOT INFRINGE ANY PATENT OR OTHER PROPRIETARY RIGHT.
8.6 At Purchaser’s request, Venogen may, in Venogen’s sole and absolute discretion, furnish technical assistance and information with respect to the products. VENOGEN MAKES NO WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, WITH RESPECT TO TECHNICAL ASSISTANCE OR INFORMATION PROVIDED BY VENOGEN OR ITS PERSONNEL. ANY SUGGESTIONS BY VENOGEN REGARDING USE, SELECTION, APPLICATION, OR SUITABILITY OF THE PRODUCTS SHALL NOT BE CONSTRUED AS AN EXPRESS OR IMPLIED WARRANTY UNLESS SPECIFICALLY DESIGNATED AS SUCH IN A WRITING SIGNED BY AN OFFICER OR OTHER AUTHORIZED REPRESENTATIVE OF VENOGEN.
9. Limitation of Liability
9.1 Purchaser assumes all risk and liability for loss, damage, or injury to persons or to the property of Purchaser or others arising out of the presence or use of the products or Venogen’s provision of services, including infringement of any third party intellectual property rights resulting from specific use of the products by Purchaser.
9.2 Except as expressly provided otherwise herein, Venogen shall not indemnify nor be liable to Purchaser, Purchaser‘s customers, successors, or to any person or entity for any claims, damages, or losses arising out of the sale or use of products or the provision of services, where liability is premised upon any theory including, but not limited to, warranty, negligence or strict liability.
9.3 Purchaser shall indemnify and hold Venogen, its affiliates, and their respective agents, employees, and representatives, harmless from and against all claims, damages, losses, costs, and expenses (including attorney’s fees and court costs) arising from or in connection with Purchaser’s sale or use of the products, resulting from Purchaser’s breach of the provisions and representations contained in these T&C, and/or arising from the negligence, recklessness or misconduct of Purchaser, its affiliates, or their respective agents, employees, partners or subcontractors.
9.4 VENOGEN AND ITS AFFILIATES SHALL NOT IN ANY EVENT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCTS OR SERVICES INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, LOSS OF WORK IN PROGRESS, LOSS OF REVENUE OR PROFITS, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME COSTS, OR ANY LIABILITY OF BUYER TO A THIRD PARTY. THE TOTAL LIABILITY OF VENOGEN AND ITS AFFILIATES UNDER THESE TERMS AND CONDITIONS OF SALE SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCTS OR SERVICES INVOLVED. All claims must be brought within 90 days of delivery, regardless of their nature.
10. Force Majeure
Neither Party shall be responsible and held liable for any delay or default in the performance of its obligations (other than payment obligations) under their mutual contract to the extent and as long as this default is caused by an event beyond its control. An event of force majeure shall include without limitation: (a) an act of war or terrorism, (b) fire, (c) natural disasters such as floods and storms, (d) general shortage of raw materials or inability to obtain equipment or materials, (e) restrictions on energy or water consumption, (f) law-making or governmental decisions, embargoes, export and import restrictions on shipping or delivery, (g) epidemics or pandemics, strikes, lockouts or labor disputes of any kind (whether relating to its own employees or others), (h) accidents, (i) sequestration, or (j) any production failure beyond reasonable control.
If either party is affected by one (or more) of the events described in Clause 9.1 above, it shall promptly notify the other party thereof, stating the nature of the event, its estimated duration, and actions being taken to avoid or minimize its effects.
If at Purchaser’s request or for any reason for which Purchaser is responsible, the production or shipment of products is delayed, Venogen may immediately invoice Purchaser for the products produced as well as costs and expenses incurred up to the time of the delay.
Each party shall have the right to cancel any non-delivered order by email if the performance thereof is prevented for more than six months according to Clause 9.1.
If Venogen is unable for any reason to supply the total demands for products specified in Purchaser‘s order, Venogen may allocate its viable supply among any or all customers (including Venogen, its Affiliates, and their respective distributors) on such basis as Venogen may deem fair and practical, without liability for any failure of performance which may result therefrom.
11. Compliance Requirements
11.2 Export Controls, Embargos
Purchaser acknowledges that the products covered by this contract are subject to the export control laws (including in particular but not limited to embargos and economic sanctions) of the country from which shipment is made. Purchaser further acknowledges that, depending on the product, it’s country of destination, its designated end-use, and the identity of the parties to the transaction, such laws may require Purchaser, either for the further transfer or re-export of the product being exported to it by Venogen or on Venogen’s behalf or for the transfer of any item into which Purchaser may incorporate such product, to seek and obtain export licenses/authorizations issued pursuant to those laws.
Where Purchaser re-exports the product in question, Purchaser is the legally responsible party for determining its correct export classification, and for obtaining any necessary export licenses/authorizations. As a courtesy and without accepting any liability whatsoever, to aid Purchaser in ascertaining the export classification and the potential applicability of export control laws on its invoice, Venogen may provide Purchaser upon request with (i) what it believes is the correct classification, under local laws, of the product being shipped and (ii) a statement indicating the country of origin of the product. Purchaser agrees to hold Venogen harmless from any and all liabilities or costs incurred by Venogen or its affiliates arising for any reason from or in connection with any export, import, regulatory, governmental, or treaty violations in any jurisdiction, whether intentional or unintentional.
11.2 Pharmaceuticals, Cosmetics, Food
With respect to the production of pharmaceutical, cosmetic, or food preparations, the Purchaser shall be solely responsible for compliance with customary medical requirements, general manufacturing practice guidelines, and applicable laws, orders, and other provisions.
In the event Purchaser wishes to purchase chemicals from Venogen, the following shall apply: Purchaser is aware of and agrees to comply with all its obligations under the REACH Regulation (EC) No. 1907/2006. Purchaser shall reimburse Venogen for all expenses incurred by Venogen in connection with Purchaser’s notification to Venogen of any use pursuant to Article 37.2 of the REACH Regulation (EC) No. 1907/2006 that necessitates an update of the registration or the chemical safety report or triggers some other obligation under the REACH Regulation. Venogen assumes no liability for delays in delivery arising in this context. If for environmental or health protection reasons, Venogen does not classify the use envisaged by Purchaser as an identified use, Venogen may withdraw from the contract unless Purchaser informs Venogen that it will abstain from the envisaged use.
11.4 Data Protection
Venogen will request, process, and use personal data (mainly name and business addresses of the contact person) from Purchaser to manage Purchaser’s requests, claims, orders, or repairs and for the continuing relationship management to Purchaser in accordance with the Personal Data Protection Act 2012. For all cases involving a transfer of personal data, Venogen will ensure compliance with data protection regulations. Furthermore, Venogen will transfer these data to authorities, if there is an existing legal obligation for Venogen to do so. Individuals have the right to access their data processed by Venogen and have such data updated. Subject to the legal requirements of data protection laws, individuals may also require that their data be deleted or blocked.
12.1 Governing Law
Unless explicitly otherwise agreed, any contract between Venogen and Purchaser shall be subject to the laws of Hong Kong (SAR), without giving effect to its rules on conflicts of laws. The United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11.04.1980 shall not apply.
12.2 Place of Performance
The place of performance for all claims resulting from the contract concluded between Purchaser and Venogen is the registered office of Venogen’s office in Hong Kong (SAR).
12.3 Venue for Disputes
The venue for all disputes between the parties shall be Hong Kong. Notwithstanding the foregoing, nothing in this section shall prevent Venogen from bringing a claim in any court having jurisdiction over Purchaser to enjoin infringement of Venogen or its affiliate’s trademark, patent, or other intellectual property rights, or to prevent irreparable harm to Venogen or its affiliates. The parties agree to waive, to the fullest extent permitted by law, any and all rights to a trial by jury in connection with any dispute.
It is important for all buyers and end-users to perform their own intellectual property search and understand the restrictions for use in their area. The purchaser agrees to verify and abide by the restrictions for use in their area.
12.4 Entire Agreement
These T&C shall constitute the final, complete, and exclusive statement of the terms of the agreement between the parties pertaining to the sale of Venogen products and the provision of Venogen services and supersedes all prior and contemporaneous understandings or agreements of the parties.
12.5 Modification, Written Form
Unless otherwise agreed in these T&C, any changes/amendments and/or additions to these T&C must be agreed in writing between the contract parties in order to be effective.
Unless the electronic format is expressly admitted thereunder, any notices required or permitted to be given by either party to the other under these T&C shall be made in writing and shall be sent by prepaid recorded delivery, special delivery, or registered or certified mail to that other party at its registered office or principal place of business or such other address as indicated by it in connection with this provision.
If individual provisions of these T&C are or become fully or partially ineffective, the remaining provisions of the T&C shall not be affected thereby. This also applies if an unintended omission is found in the contract. A fully or partially ineffective provision shall be replaced or an unintended omission in the T&C shall be filled by an appropriate provision which, as far as is legally possible, most closely approximates to the original intention of the contractual parties or to what they would have intended according to the meaning and purpose of these T&C had they been aware of the ineffectiveness or omission of the provision(s) in question.
Venogen’s failure to strictly enforce any particular term or condition contained herein or to exercise any right with respect to your order shall not constitute a waiver of Venogen’s right to strictly enforce such terms or conditions or exercise such right thereafter. All rights and remedies are cumulative and are in addition to any other rights and remedies Venogen may have at law or in equity. Any waiver of a default by you shall be in writing and shall not operate as a waiver of any other default or of the same default thereafter.
Orders are not assignable or transferable, in whole or in part, without the express written consent of VENOGEN. These T&C shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto, and their respective heirs, personal representatives, successors and assigns.
Any marketing, promotion, or other publicity material, whether written or in electronic form, that refers to Venogen, its affiliates, its products, or to these T&C must be approved by Venogen prior to its use or release.
Purchaser shall not, without Venogen’s written consent, disclose any confidential information, including but not limited to documents, drawings, schematics, plans, designs, specifications, know-how, discoveries, production methods, or product and pricing information disclosed to Purchaser by Venogen, or on Venogen’s behalf. Purchaser shall take reasonable precautions against any such confidential information being acquired by unauthorized persons and shall not employ any such confidential information for its own use for any purpose whatsoever, including filing any patent applications disclosing or based on Venogen’s confidential information or publishing the confidential information in any form. Venogen shall retain title to all such confidential information and Purchaser shall, at Venogen’s request, return or deliver all such tangible confidential information to Venogen. The term “confidential information” as used herein shall not include information which is generally published or lawfully available to Purchaser from other sources or which was known to Purchaser prior to disclosure thereof to Purchaser by Venogen or on Venogen’s behalf.
12.12 Proprietary Rights
Venogen, or its affiliates, is the owner of certain proprietary brand names, trademarks, trade names, logos, and other intellectual property. Except as otherwise expressly permitted by Venogen, no use of Venogen’s or its affiliates’ brand names, trademarks, trade names, logos, or other intellectual property is permitted, nor the adoption, use or registration of any words, phrases, or symbols so closely resembling any of Venogen’s or its affiliates’ brand names, trademarks, trade names, logos or other intellectual property as to be apt to lead to confusion or uncertainty, or to impair or infringe the same in any manner, or to imply any endorsement by Venogen of another entity’s products or services.
12.13 Waiver of Breach
The waiver by either party at any time to require performance by the other of any provision or part of any provision of these T&C shall not operate as a waiver of such provision at any other time.
12.14 Typographical Errors
Stenographic, clerical, or computer errors on the face of any Venogen invoice shall be subject to correction by Venogen
12.15 Independence of the Parties
Nothing in this agreement shall be deemed to constitute a partnership between the parties or to make either party the agent of the other party for any purpose. Furthermore, each of the parties shall remain solely responsible for its own acts, statements, engagements, performances, products (in the case of Venogen subject to the other terms of the T&C in relation to the products), and personnel.
12.16 Third Parties
Nothing in this document is intended to create any rights in third parties against Venogen.
13. Specific Provisions
13.1 Representations and Warranties for Services
If Purchaser is purchasing services from Venogen, the following provisions shall exclusively apply in relation to representations and warranties for services and services only.
13.1.1 Unless otherwise agreed upon between the parties, services may be provided at the equipment site, Venogen site, or a Venogen authorized third party site, as determined by Venogen at its sole discretion. In the event that the purchased services shall be provided at a Venogen or Venogen authorized third party site, equipment will need to be returned to a Venogen authorized site for repair or replacement, and Purchaser shall be responsible for all shipping and transportation costs, including any insurance costs. In the event that the purchased services are to be provided at the equipment site, Purchaser shall (i) make available to Venogen a qualified employee who is familiar with the equipment and must be present during the call to assist as may be necessary for the performance of the services, and (ii) provide Venogen service representatives with (a) access to its facilities to the extent necessary for such representatives to perform services, (b) a satisfactory and safe work area, and (c) adequate electrical power and water, as applicable.
13.1.2 Venogen’s obligation to provide purchased services and its Service Warranty (as defined below) shall not extend to any equipment failure or defect resulting directly or indirectly from the following:
(a) Non-compliance with specifications;
(b) Any misuse, theft, water flow-back, or neglect by Purchaser or its employees, contractors or agents or a wrongful act by such persons;
(c) Accidents or shipping related damage;
(d) Electrical failure unrelated to the product;
(e) Damage due to vandalism, explosion, flood or fire, weather or environmental conditions; and
(f) Any installation, repairs, modifications, upgrades, maintenance, or other servicing by a third party that is not approved by Venogen;
Such circumstances shall entitle Venogen to charge Purchaser a reasonable compensation (if applicable) for any non-reimbursable travel costs, and working time of Venogen’s employees, contractors, or agents (at list rate), and for similar expenses.
13.1.3 Venogen warrants that it shall provide services in a professional and workmanlike manner, consistent with average standards of workmanship and materials then prevailing in the trade, and by appropriately trained and qualified employees or third party representatives selected at its sole discretion (the “Service Warranty”). Venogen makes no other express or implied warranty. In the case of a breach of the Service Warranty, the following shall apply: In the case of a breach of the Service Warranty, the parties agree that the sole remedy available under the contract shall be repeat performance by Venogen of the portion of such services that constitutes or gives rise to the breach. If in its reasonable opinion Venogen is unable to repeat the performance of such services, the parties agree that the sole remedy in such a case is for Venogen to refund to the Purchaser all sums paid for the portion of such services. For the avoidance of doubt, the parties agree that Venogen shall not be liable for any consequential, incidental, indirect, economic or special loss or loss to property caused by any service or part thereof supplied under this contract or subject to any penalty, by late delivery of any such service or part thereof, whether or not the aforementioned loss is due to the negligence of Venogen. In any case, the maximum aggregate liability that can be attributed to Venogen under this contract is expressly limited to an amount equal to the sums effectively paid to Venogen by the Purchaser for services under this contract; provided that any liability for Purchaser’s products in process shall be excluded. Venogen makes no other express or implied warranty. Venogen will not be in breach of this contract or otherwise liable to the Purchaser for any delay in performance or any nonperformance of any obligations under this contract (and the time for performance will be extended accordingly) of and to the extent that the delay or non-performance is owing to Force Majeure.
13.1.4 In the event that Purchaser is purchasing services on behalf of a third party, or in relation to products owned by a third party or located at the premises of a third party, Purchaser represents and warrants that it has the proper legal authority to purchase such services with respect to such third party. Purchaser shall indemnify and hold Venogen, its affiliates, and their respective agents, employees, and representatives, harmless from and against any and all claims, damages, losses, costs, or expenses (including attorney’s fees) caused by or resulting from any third party claim relating to the provision of any services by Venogen.
13.2 Venogen may define certain products as Custom Made-To-Order (“CMO”). Purchaser must provide Venogen with product specifications prior to the start of manufacturing a CMO product. Venogen and Purchaser shall agree on all respective production and testing techniques prior to the start of manufacturing a CMO product. Purchaser must provide a purchase order detailing product and delivery schedule for reserved products. Purchaser shall purchase the entire lot of the CMO without regard to volume. Purchase orders for CMO products are not cancelable.