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Terms of Sale

  1. APPLICATION.  These Terms of Sale (these “Terms”) govern the sale by Scientific Bioprocessing, Inc. (“SBI”) of any good to any person ordering such good from SBI (“Buyer”) under an agreement between Buyer and SBI incorporating these Terms or under a purchase or other order issued by Buyer to SBI (such agreement or purchase or other order together with these Terms, the “Agreement”), provided that (i) the Agreement does not include, and SBI hereby expressly rejects, any legal terms or conditions set forth in such purchase or other order, and any terms or conditions referenced or otherwise incorporated into such purchase or other order or in any other document, message, statement, correspondence, or communication (e.g., an order confirmation, proposal, request for proposal, description, specification, etc.), and (ii) in the event of a conflict or discrepancy between any of these Terms and any provision of such agreement or purchase or other order or agreement or any other document referenced or identified therein or submitted by Buyer (including any terms or conditions of Buyer), these Terms shall prevail.  These Terms and any other provision of the Agreement (subject to the foregoing) set forth the complete and entire agreement and understanding between SBI and Buyer (each, a “Party” and collectively, the “Parties”) regarding the order, purchase, sale, supply, and delivery of any good ordered by Buyer from SBI under the Agreement (the “Product”), and performance related thereto, shall replace any prior agreement, term sheet, or other agreement between the SBI and Buyer related thereto, and may be amended solely by, and to the extent set forth in, a written amendment expressly stating the amendment and signed by each Party through its authorized representative. Any order and purchase by Buyer, and any sale, supply, and delivery of the Product by SBI, and all performance, rights, and obligations related thereto or in connection therewith, are under and subject to, and governed by, only the Agreement – to the exclusion of all other terms and conditions.  
  2. SOFTWARE. Any and all software included in or with the Product, or provided or made available for the Product by SBI or an affiliate of SBI, including any firmware is licensed, provided, and made available solely under the terms of the End User License Agreement in effect at the effective date of the Agreement, agreement to which is a condition precedent for any use of the Product, and any use of the Product shall be deemed to be the acceptance of such End User License Agreement. End user license agreements can be found here:
    -For DOTS 1 Software: https://info.scientificbio.com/end-user-license-agreement 
    -For DOTS 2 Software and Perpetual Licenses: https://info.scientificbio.com/end-user-license-agreement-perpetual
    -For DOTS 2 Software and Subscription Licenses: https://info.scientificbio.com/end-user-license-agreement-subscription 
  3. ORDER OF PRODUCT. Each order for the Product by Buyer under the Agreement shall be deemed to be an offer by Buyer to purchase the Product from SBI subject to these Terms. Buyer is solely responsible for ensuring that the details of its order, including identification of the Product and quantity, are complete and accurate and will be bound by the order with the details set forth therein.  No order placed by Buyer shall be deemed to be accepted by SBI until SBI either provides a written acceptance of such order to Buyer or ships the Product to Buyer. Any order accepted by SBI is non-cancellable, and the Product purchased is non-returnable other than as provided in these Terms.
  4. PRICE; PAYMENT
    a.     Buyer shall pay to SBI for the Product ordered under the Agreement the price as then agreed by the Parties under the Agreement for the Product, or otherwise SBI’s then standard price for the Product (the “Price”).  The Price is exclusive of all shipping, freight, transshipment, loading, unloading, delivery, storage, warehousing, insurance, and other costs, expenses, charges, taxes, customs duties, and fees of any kind resulting from or arising out of or in connection with the shipment, order, sale, purchase, or delivery of the Product (“Costs”) and any sales, services, value added, and other taxes, imposts, and duties of any kind tax arising from or in connection with the order, sale, purchase, supply, shipment, or delivery of the Product or payment of the Price (excluding only any income taxes assessed against SBI for receiving the Price) (“Taxes”).  Buyer shall be responsible for, and shall pay or reimburse SBI for, all Costs and Taxes.
    b.    Buyer shall pay the Price and all Costs and Taxes owed to SBI within, and such payment shall be due to SBI at: (i) the time agreed by both Parties in writing in the Agreement, or (ii) otherwise thirty (30) days after SBI’s issuance of an invoice for such Price, Costs, and/or Taxes.  SBI may require Buyer to make any pre-payment of any or all of the Price, Costs, and Taxes before shipping the Product.
    c.    Each payment to SBI shall be made in immediately available, unconditional and irrevocable funds in U.S. dollar currency.  A payment shall not be deemed received by SBI unless SBI has received such payment in full as cleared funds.  Buyer shall make all payments without any set-off, counterclaim, discount, abatement, or other deduction or reduction.  All payments to SBI are final and non-refundable.  Buyer shall pay SBI interest on any amount of any payment to SBI not received by SBI when due from the due date thereof until the full amount of such payment has been received by SBI under this Section 4.c at the rate of 1% for any full or partial calendar month that such sum remains unpaid in accordance with these provisions or the highest rate or amount permissible under applicable law, whichever is lower.  If Buyer fails to make any payment to SBI when due, SBI is entitled (in addition to and without prejudice to any other right or remedy it may have) to cancel or suspend any further delivery to Buyer under any order and/or sell or otherwise dispose of the Products which are then the subject of any order by Buyer and apply the proceeds of sale to the overdue payment.
  5. SHIPPING AND DELIVERY; INSPECTION; ACCEPTANCE
    a.    The Product is sold, shipped, and supplied by SBI to Buyer either from a facility of SBI or a facility of an affiliate or supplier to SBI (“Shipping Location”) to the address provided by Buyer in its order of the Product or other place where SBI agrees to ship the Product (the “Destination”).  SBI may use any reasonable means of shipment to ship the Product to the Destination. SBI shall have fulfilled all of its shipping, delivery, supply, and tender obligations regarding the Product upon providing the Product to the shipping carrier for its loading of the Product or, if the Parties agreed that Buyer would collect the Product at the Shipping Location, upon making such available for collection by Buyer at the agreed-upon time or otherwise at the earliest reasonable time for such collection.
    b.    Any time or date agreed by SBI for shipment or delivery of the Product is intended to be an estimate only and shall not be of the essence, whether implicitly or by notice. SBI is not responsible or liable for any non-delivery of the Product, any shipment, or any part thereof, or the duration or time of shipment or delivery, or any delay during shipment, or for any direct, indirect, incidental or consequential damages, losses (including any lost profits, lost business, depletion of goodwill, and the like), costs, charges or expenses caused directly or indirectly by any delay in the delivery of the Product, regardless of any negligence of SBI. 
    c.    Buyer shall be deemed to have received and taken delivery of Product once shipment of the Product arrives at the Destination or, if collection at the Shipping Location has been agreed, Buyer receives the Product at the Shipping Location (“Receipt”).  The quantity of the shipped Product as recorded by, or by a third party for, SBI upon shipment of the Product from the Shipping Location shall be conclusive evidence of the quantity received by Buyer on delivery unless and to the extent Buyer proves by conclusive evidence a different quantity.  Upon Receipt of the Product, Buyer shall conduct a reasonable inspection of the Product to verify any Non-Conformance.  “Non-Conformance” means, with regard to the Product ordered by Buyer, any failure of the Product shipped by SBI or collected by Buyer on such order to confirm in type and quantity of the Product with such order or any damage, destruction, defect, loss or other non-conformity of the Product, including whether any sealed packaging or wrapping of the Product is broken or subject to tampering.  Within, and no later than, five (5) calendar days after Receipt of the Product, Buyer shall notify SBI in writing of any Non-Conformance, identifying therein in reasonable detail such Non-Conformance.  Buyer shall be deemed conclusively to have accepted the Product if or to the extent that Buyer fails to provide SBI with such written notice within such five (5) calendar days after Receipt of the Product.  Buyer shall have the burden to prove the Receipt and the date of Receipt of the Product through written documentation.  If and to the extent that any Non-Conformance of the Product existed before the transfer of the risk of loss of the Product to Buyer and SBI is liable and responsible for such Non-Conformance under the Agreement, SBI’s liability and obligation related thereto shall be limited to replacement of the Product subject to such Non-Conformance or, if such Non-Conformance is missing quantity of Product, shipment of such missing quantity to Buyer hereunder, or issuing a credit note for the Price of the Product against any invoice by SBI for Buyer’s order including the Product.
  6. RISK AND TITLE. If the Product is shipped by an affiliate or supplier of SBI outside the United States, the Product is sold and shipped FCA the Shipping Location (INCOTERMS 2020).  If the Product is shipped by SBI or an affiliate or supplier of SBI in the United States, the risk of loss for the Product shall transfer to Buyer at, and Buyer shall bear the full risk of loss for the Product from, the time at which SBI makes available the Product at the Shipping Location (i) to the carrier  for loading for shipment to the Destination, or (ii) for collection by Buyer at the agreed-upon time or otherwise at the earliest reasonable time for such collection if the Parties agreed that Buyer would collect the Product at the Shipping Location.  Title to the Product shall transfer to Buyer upon the transfer of the risk of loss for the Product to Buyer.
  7. SECURITY INTEREST. Buyer hereby grants to SBI, and SBI hereby retains, a continuing purchase money security interest in the Product sold by SBI to Buyer, whether presently in the possession of Buyer or hereafter acquired, together with any and all proceeds of sale or other disposition of the Product, including cash, accounts, contract rights, and chattel paper. Upon SBI’s request, Buyer shall promptly complete and deliver to SBI UCC-1 Financing Statements to enable SBI to perfect SBI’s security interest in the Product. Buyer agrees also to execute, file, and record such other statements, notices, and agreements, take such action and obtain such certificates and documents, in accordance with all applicable laws, statutes, and regulations as may be as may be required by SBI, in its sole discretion, to perfect, evidence, and continue SBI's security interest in the Product. Buyer shall keep the Product free from any adverse lien, security interest, and encumbrance, and will not store the Product or any part thereof or use the Product in violation of any statute or ordinance. SBI shall have the remedies of a secured party under the Uniform Commercial Code. SBI may enter Buyer’s premises and remove the Product. Buyer agrees to pay SBI's reasonable attorney’s fees and costs for collecting any amount owed to SBI hereunder or incurred in the repossession of the Product.
  8. BUYER RESPONSIBILITY.  Buyer is solely and only responsible for any use, utilization, possession, processing, handling, storage, offer, sale, resale, consumption, and disposal of the Product after transfer of the risk of loss thereof, whether by or for Buyer or any direct or indirect customer, user, or end user of the Product or any other third party.  Buyer hereby represents and warrants that all such use, utilization, possession, processing, handling, storage, offer, sale, resale, consumption, and disposal will be in accordance with, and will not violate, any law.  Buyer will defend, indemnify, and hold harmless SBI, all of its affiliates, and all owners, officers, directors, members, managers, employees, agents, and representatives of SBI or any of its affiliates (collectively, “SBI Group”) from and against any and all claims, suits, actions, litigation, investigations, complaints, and proceedings of any kind, and any and all liability, damages, losses, judgments, orders, fines, penalties, costs, and expenses, including all attorneys’ fees and defense and legal costs, arising from or in connection with or as a result of or related to any use, utilization, possession, processing, handling, storage, offer, sale, resale, consumption, or disposal of the Product after transfer of the risk of loss therefor, whether by or for Buyer or any direct or indirect customer, user, or end user of the Product or any other third party, including any product or service using, made with, or including the Product.
  9. WARRANTY.  SBI HEREBY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS BY IT OR ANY OF ITS AFFILIATES, OR REGARDING ANY PRODUCTS, SERVICES OR THINGS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, COMPLIANCE WITH PARTICULAR SPECIFICATIONS, CONDITIONS OR REQUIREMENTS, VALUE, USEFULNESS, WORKMANSHIP, TITLE, AND NON-INFRINGEMENT.
  10. REMEDIES.  SBI’s sole and exclusive liability, responsibility, and obligation related to any non-conformance of the Product is, if SBI is liable for such non-conformance under the Agreement or applicable law, the replacement of the Product such that it meets such warranty, on the condition that Buyer gives SBI written notice of such non-conformance and breach, identifying therein the Product, order of the Product, and non-conformance, within ninety (90) days after Receipt of the Product.  In no event shall SBI be liable, responsible, or obligated for any non-conforming Product in the event (i) that Buyer or any of its direct or indirect customers or any user makes any further use of the Product after any non-conformance is discovered, known, or should be known by Buyer or such customer or user, or (ii) that the Product is used for any purpose or in manner not intended by SBI or misuse, abuse, or unreasonable treatment, handling, or storage, or (iii) of any failure to follow SBI’s directions regarding the Product, or (iv) of any alteration, modification, combination, or change of the Product, or (v) of any negligence, wrongful misconduct, or violation of law by Buyer or any direct or indirect customer or user of the Product. Buyer agrees that the statute of limitation for any claim against SBI under the Agreement related to the Product is limited to one (1) year after the risk of loss to the Product transfers.
  11. LIMITATION OF LIABILITY.  IN NO EVENT SHALL SBI OR ANY AFFILIATE OF SBI BE LIABLE (WHETHER TO BUYER, ANY OF ITS AFFILIATES, OR ANY OF ITS DIRECT OR INDIRECT CUSTOMERS OR PRODUCT USERS) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, LIQUIDATED, OR EXEMPLARY DAMAGES OR LOSSES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OR DEPLETION OF GOODWILL, AND LOST BUSINESS OPPORTUNITIES), EVEN IF FORESEEABLE OR ANY OF THEM HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, WHETHER AS A RESULT OF OR IN CONNECTION WITH ANY PRODUCT OR ITS USE OR UTILIZATION OF ANY KIND, THE AGREEMENT, OR ANY PERFORMANCE, ACT, OR OMISSION UNDER THE AGREEMENT.  SBI REJECTS AND DOES NOT AGREE TO ACCEPT ANY OBLIGATION TO DEFEND OR INDEMNIFY BUYER OR ANY THIRD PARTY UNDER THE AGREEMENT.  IF AND TO THE EXTENT THAT SBI IS LIABLE FOR ANY DAMAGES OR LOSSES (WHETHER FOR DIRECT DAMAGES OR LOSSES OR IF ANY OF THE FOREGOING PROVISIONS OF THIS SECTION 10 IS IN VALID OR UNENFORCEABLE UNDER APPLICABLE LAW), SBI’S AGGREGATE AND CUMULATIVE LIABILITY ARISING FROM ANY PRODUCT SHALL IN NO EVENT EXCEED THE PRICE PAID BY BUYER TO, AND ACTUALLY RECEIVED BY, SBI UNDER THESE TERMS FOR SBI’S SALE OF SUCH PRODUCT TO BUYER AND SHALL IN NO EVENT EXCEED THE SUM OF THE PRICES PAID BY BUYER TO, AND ACTUALLY RECEIVED BY, SBI UNDER THESE TERMS FOR SBI’S SALE OF ALL PRODUCT TO BUYER UNDER THE AGREEMENT. 
  12. LEGAL RESTRICTIONS.  In the event, and solely to the extent, that any part or provision of Sections 8, 9, 10, or 11 of these Terms is invalid or unenforceable under applicable law of any particular state, country, or jurisdiction, such part or provision shall be interpreted or deemed revised for the purpose of such state, country or jurisdiction only so as to be valid and enforceable under such law while preserving, to the greatest permissible under such law, the disclaimers, exclusions, limitations, or shifting set forth in such Sections 8, 9, 10, or 11, as applicable.
  13. INTELLECTUAL PROPERTY; CONFIDENTIALITY.   Nothing in or under the Agreement or any performance is or shall be interpreted to be or give rise to any, or a right or agreement for any, assignment, transfer, conveyance, license, lien, claim, or other right in or to any intellectual property or intellectual property rights of SBI or any of its affiliates, including any related to the development or production of the Product, or any marks or names of SBI or its affiliates, whether expressly or implicitly and whether to Buyer or any other third party.  Buyer shall keep confidential and not disclose, make available, or use any documentation, work, material, data, and information disclosed or provided by or for, or obtained from, SBI, in any form, medium, or format, whether or not identified as confidential or proprietary (collectively, “Confidential Information”, other than any that, and to the extent it, was already known publicly at the time it was so disclosed, provided, or obtained or that, to the extent and after it, becomes known publicly through no fault of Buyer or any of its personnel), except solely as expressly permitted by SBI in advance in writing.  Buyer shall protect the confidentiality of all Confidential Information to the same degree as it protects its own confidential information, but no less than a reasonable degree.  If Buyer or any of its personnel is required to disclose any Confidential Information in an administrative or judicial proceeding, then Buyer shall (i) promptly notify SBI thereof before (unless applicable law prohibits prior notice, then as soon as possible after) such disclosure, (ii) reasonably assist SBI with exercising or asserting legal rights or remedies against such disclosure and/or obtaining a protective order covering such disclosure, and (iii) limit the disclosure to that which is legally required to be disclosed.
  14. FORCE MAJEURE. SBI shall not be in breach of its obligations under the Agreement, or otherwise be liable to Buyer, by reason of any delay in performance, or non-performance, of any of its obligations under the Agreement to the extent that such delay or non-performance is due to circumstances beyond the reasonable control of SBI including acts of God, governmental actions, change in law, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
  15. COMPLIANCE WITH LAW. The Product may be subject to the jurisdiction of the U.S. Export Administration Regulations (the “EAR”) (Title 15 of the U.S. Code of Federal Regulations Part 730 et seq.) and U.S. trade embargo regulations (Title 31 of the U.S. Code of Federal Regulations Part 500 et seq.) and other law. Buyer agrees that it will not, directly or indirectly: (i) reexport, use, utilize, offer, sell, or otherwise transfer or make available the Product, or any part or information thereof, to any country or person in violation of the EAR or any state or federal law of the United States; or (ii) provide the Product, or any party or information thereof, to any person that Buyer knows or has reason to suspect will cause the Product, or any part or information thereof, to be reexported, sold, or otherwise transferred or made available to any country or person in violation of the EAR or any state or federal law of the United States.
  16. GENERAL
    a.     Each right or remedy of SBI under the Agreement is without prejudice to any other right or remedy of SBI whether under the Agreement or otherwise. Failure or delay by SBI in enforcing or partially enforcing any provision of these Terms or the Agreement will not be construed as a waiver of any of its rights under the Agreement.  Any waiver by SBI of any breach of, or any default under, any provision of the Agreement by Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other provisions of the Agreement.
    b.    BUYER UNDERSTANDS AND AGREES THAT ANY CAUSE OF ACTION OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH ANY SALE OF PRODUCT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE SHIPMENT OR COLLECTION OF SUCH PRODUCT UNDER THESE TERMS, OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
    c.    If and to the extent that any provision of the Agreement, or any part thereof, is found by any court, tribunal or agency to be wholly or partly illegal, invalid, void, voidable, or unenforceable, it (i) shall be deemed replaced by a provision that is valid and enforceable and comes closest to expressing the intention of such replaced provision, and (ii) shall otherwise be deemed severable and the remaining provisions or remaining part shall continue in full force and effect.
    d.    The Parties do not intend any third party to be a beneficiary under the Agreement, or any sale, purchase, or transaction hereunder, and nothing in the Agreement shall be construed for any third party to be a third party beneficiary or to confer any third party beneficiary rights or status on any third party.
    e.    The Agreement, and the interpretation and construction of the Agreement, and the validity, enforceability, and performance of the Agreement, and any dispute under the Agreement and the resolution of any dispute under the Agreement, shall be governed by the law of the State of New York and any applicable U.S. federal law, without the application of any conflicts of law provisions that would result in the application of the law of a different jurisdiction. The U.N. Convention on the International Sale of Goods, if and to the extent applicable, is hereby disclaimed and shall not apply to the Agreement or any transaction thereunder. Any action arising under or related to the Agreement shall be vested in either Suffolk County, New York; or the Eastern District of New York of the United States District Court.  Each Party expressly and irrevocably consents and submits to, and waives any objection to, the jurisdiction of such Suffolk County, New York and U.S. federal courts.
    f.    In the Agreement: (i) any reference to any provision of law shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time; (ii) the term “including” to the extent used in these Terms means “including, without limitation” or “including, but not limited to”; (iii) the principle ejusdem generis shall not apply to any provision in these Terms; (iv) the provisions shall not be interpreted against the drafter, and for purposes of any interpretation, both Parties shall be deemed to be drafters of the Agreement; (v) where the Agreement states that a Party “shall” or “will” perform, act, or omit to act, it means that such Party is legally obligated to do so in accordance with the Agreement; (vi) all article and section headings or titles herein are intended solely for the convenience of the Parties, and none will be deemed to affect the meaning or construction of any provision hereof; and (vii) words of any gender used in the Agreement are intended to include any other gender, and words in the singular number include the plural, and vice versa, unless the context clearly indicates otherwise.
English
  1. APPLICATION.  These Terms of Sale (these “Terms”) govern the sale by Scientific Bioprocessing, Inc. (“SBI”) of any good to any person ordering such good from SBI (“Buyer”) under an agreement between Buyer and SBI incorporating these Terms or under a purchase or other order issued by Buyer to SBI (such agreement or purchase or other order together with these Terms, the “Agreement”), provided that (i) the Agreement does not include, and SBI hereby expressly rejects, any legal terms or conditions set forth in such purchase or other order, and any terms or conditions referenced or otherwise incorporated into such purchase or other order or in any other document, message, statement, correspondence, or communication (e.g., an order confirmation, proposal, request for proposal, description, specification, etc.), and (ii) in the event of a conflict or discrepancy between any of these Terms and any provision of such agreement or purchase or other order or agreement or any other document referenced or identified therein or submitted by Buyer (including any terms or conditions of Buyer), these Terms shall prevail.  These Terms and any other provision of the Agreement (subject to the foregoing) set forth the complete and entire agreement and understanding between SBI and Buyer (each, a “Party” and collectively, the “Parties”) regarding the order, purchase, sale, supply, and delivery of any good ordered by Buyer from SBI under the Agreement (the “Product”), and performance related thereto, shall replace any prior agreement, term sheet, or other agreement between the SBI and Buyer related thereto, and may be amended solely by, and to the extent set forth in, a written amendment expressly stating the amendment and signed by each Party through its authorized representative. Any order and purchase by Buyer, and any sale, supply, and delivery of the Product by SBI, and all performance, rights, and obligations related thereto or in connection therewith, are under and subject to, and governed by, only the Agreement – to the exclusion of all other terms and conditions.  
  2. SOFTWARE. Any and all software included in or with the Product, or provided or made available for the Product by SBI or an affiliate of SBI, including any firmware is licensed, provided, and made available solely under the terms of the End User License Agreement in effect at the effective date of the Agreement, agreement to which is a condition precedent for any use of the Product, and any use of the Product shall be deemed to be the acceptance of such End User License Agreement. End user license agreements can be found here:
    -For DOTS 1 Software: https://info.scientificbio.com/end-user-license-agreement 
    -For DOTS 2 Software and Perpetual Licenses: https://info.scientificbio.com/end-user-license-agreement-perpetual
    -For DOTS 2 Software and Subscription Licenses: https://info.scientificbio.com/end-user-license-agreement-subscription 
  3. ORDER OF PRODUCT. Each order for the Product by Buyer under the Agreement shall be deemed to be an offer by Buyer to purchase the Product from SBI subject to these Terms. Buyer is solely responsible for ensuring that the details of its order, including identification of the Product and quantity, are complete and accurate and will be bound by the order with the details set forth therein.  No order placed by Buyer shall be deemed to be accepted by SBI until SBI either provides a written acceptance of such order to Buyer or ships the Product to Buyer. Any order accepted by SBI is non-cancellable, and the Product purchased is non-returnable other than as provided in these Terms.
  4. PRICE; PAYMENT
    a.     Buyer shall pay to SBI for the Product ordered under the Agreement the price as then agreed by the Parties under the Agreement for the Product, or otherwise SBI’s then standard price for the Product (the “Price”).  The Price is exclusive of all shipping, freight, transshipment, loading, unloading, delivery, storage, warehousing, insurance, and other costs, expenses, charges, taxes, customs duties, and fees of any kind resulting from or arising out of or in connection with the shipment, order, sale, purchase, or delivery of the Product (“Costs”) and any sales, services, value added, and other taxes, imposts, and duties of any kind tax arising from or in connection with the order, sale, purchase, supply, shipment, or delivery of the Product or payment of the Price (excluding only any income taxes assessed against SBI for receiving the Price) (“Taxes”).  Buyer shall be responsible for, and shall pay or reimburse SBI for, all Costs and Taxes.
    b.    Buyer shall pay the Price and all Costs and Taxes owed to SBI within, and such payment shall be due to SBI at: (i) the time agreed by both Parties in writing in the Agreement, or (ii) otherwise thirty (30) days after SBI’s issuance of an invoice for such Price, Costs, and/or Taxes.  SBI may require Buyer to make any pre-payment of any or all of the Price, Costs, and Taxes before shipping the Product.
    c.    Each payment to SBI shall be made in immediately available, unconditional and irrevocable funds in U.S. dollar currency.  A payment shall not be deemed received by SBI unless SBI has received such payment in full as cleared funds.  Buyer shall make all payments without any set-off, counterclaim, discount, abatement, or other deduction or reduction.  All payments to SBI are final and non-refundable.  Buyer shall pay SBI interest on any amount of any payment to SBI not received by SBI when due from the due date thereof until the full amount of such payment has been received by SBI under this Section 4.c at the rate of 1% for any full or partial calendar month that such sum remains unpaid in accordance with these provisions or the highest rate or amount permissible under applicable law, whichever is lower.  If Buyer fails to make any payment to SBI when due, SBI is entitled (in addition to and without prejudice to any other right or remedy it may have) to cancel or suspend any further delivery to Buyer under any order and/or sell or otherwise dispose of the Products which are then the subject of any order by Buyer and apply the proceeds of sale to the overdue payment.
  5. SHIPPING AND DELIVERY; INSPECTION; ACCEPTANCE
    a.    The Product is sold, shipped, and supplied by SBI to Buyer either from a facility of SBI or a facility of an affiliate or supplier to SBI (“Shipping Location”) to the address provided by Buyer in its order of the Product or other place where SBI agrees to ship the Product (the “Destination”).  SBI may use any reasonable means of shipment to ship the Product to the Destination. SBI shall have fulfilled all of its shipping, delivery, supply, and tender obligations regarding the Product upon providing the Product to the shipping carrier for its loading of the Product or, if the Parties agreed that Buyer would collect the Product at the Shipping Location, upon making such available for collection by Buyer at the agreed-upon time or otherwise at the earliest reasonable time for such collection.
    b.    Any time or date agreed by SBI for shipment or delivery of the Product is intended to be an estimate only and shall not be of the essence, whether implicitly or by notice. SBI is not responsible or liable for any non-delivery of the Product, any shipment, or any part thereof, or the duration or time of shipment or delivery, or any delay during shipment, or for any direct, indirect, incidental or consequential damages, losses (including any lost profits, lost business, depletion of goodwill, and the like), costs, charges or expenses caused directly or indirectly by any delay in the delivery of the Product, regardless of any negligence of SBI. 
    c.    Buyer shall be deemed to have received and taken delivery of Product once shipment of the Product arrives at the Destination or, if collection at the Shipping Location has been agreed, Buyer receives the Product at the Shipping Location (“Receipt”).  The quantity of the shipped Product as recorded by, or by a third party for, SBI upon shipment of the Product from the Shipping Location shall be conclusive evidence of the quantity received by Buyer on delivery unless and to the extent Buyer proves by conclusive evidence a different quantity.  Upon Receipt of the Product, Buyer shall conduct a reasonable inspection of the Product to verify any Non-Conformance.  “Non-Conformance” means, with regard to the Product ordered by Buyer, any failure of the Product shipped by SBI or collected by Buyer on such order to confirm in type and quantity of the Product with such order or any damage, destruction, defect, loss or other non-conformity of the Product, including whether any sealed packaging or wrapping of the Product is broken or subject to tampering.  Within, and no later than, five (5) calendar days after Receipt of the Product, Buyer shall notify SBI in writing of any Non-Conformance, identifying therein in reasonable detail such Non-Conformance.  Buyer shall be deemed conclusively to have accepted the Product if or to the extent that Buyer fails to provide SBI with such written notice within such five (5) calendar days after Receipt of the Product.  Buyer shall have the burden to prove the Receipt and the date of Receipt of the Product through written documentation.  If and to the extent that any Non-Conformance of the Product existed before the transfer of the risk of loss of the Product to Buyer and SBI is liable and responsible for such Non-Conformance under the Agreement, SBI’s liability and obligation related thereto shall be limited to replacement of the Product subject to such Non-Conformance or, if such Non-Conformance is missing quantity of Product, shipment of such missing quantity to Buyer hereunder, or issuing a credit note for the Price of the Product against any invoice by SBI for Buyer’s order including the Product.
  6. RISK AND TITLE. If the Product is shipped by an affiliate or supplier of SBI outside the United States, the Product is sold and shipped FCA the Shipping Location (INCOTERMS 2020).  If the Product is shipped by SBI or an affiliate or supplier of SBI in the United States, the risk of loss for the Product shall transfer to Buyer at, and Buyer shall bear the full risk of loss for the Product from, the time at which SBI makes available the Product at the Shipping Location (i) to the carrier  for loading for shipment to the Destination, or (ii) for collection by Buyer at the agreed-upon time or otherwise at the earliest reasonable time for such collection if the Parties agreed that Buyer would collect the Product at the Shipping Location.  Title to the Product shall transfer to Buyer upon the transfer of the risk of loss for the Product to Buyer.
  7. SECURITY INTEREST. Buyer hereby grants to SBI, and SBI hereby retains, a continuing purchase money security interest in the Product sold by SBI to Buyer, whether presently in the possession of Buyer or hereafter acquired, together with any and all proceeds of sale or other disposition of the Product, including cash, accounts, contract rights, and chattel paper. Upon SBI’s request, Buyer shall promptly complete and deliver to SBI UCC-1 Financing Statements to enable SBI to perfect SBI’s security interest in the Product. Buyer agrees also to execute, file, and record such other statements, notices, and agreements, take such action and obtain such certificates and documents, in accordance with all applicable laws, statutes, and regulations as may be as may be required by SBI, in its sole discretion, to perfect, evidence, and continue SBI's security interest in the Product. Buyer shall keep the Product free from any adverse lien, security interest, and encumbrance, and will not store the Product or any part thereof or use the Product in violation of any statute or ordinance. SBI shall have the remedies of a secured party under the Uniform Commercial Code. SBI may enter Buyer’s premises and remove the Product. Buyer agrees to pay SBI's reasonable attorney’s fees and costs for collecting any amount owed to SBI hereunder or incurred in the repossession of the Product.
  8. BUYER RESPONSIBILITY.  Buyer is solely and only responsible for any use, utilization, possession, processing, handling, storage, offer, sale, resale, consumption, and disposal of the Product after transfer of the risk of loss thereof, whether by or for Buyer or any direct or indirect customer, user, or end user of the Product or any other third party.  Buyer hereby represents and warrants that all such use, utilization, possession, processing, handling, storage, offer, sale, resale, consumption, and disposal will be in accordance with, and will not violate, any law.  Buyer will defend, indemnify, and hold harmless SBI, all of its affiliates, and all owners, officers, directors, members, managers, employees, agents, and representatives of SBI or any of its affiliates (collectively, “SBI Group”) from and against any and all claims, suits, actions, litigation, investigations, complaints, and proceedings of any kind, and any and all liability, damages, losses, judgments, orders, fines, penalties, costs, and expenses, including all attorneys’ fees and defense and legal costs, arising from or in connection with or as a result of or related to any use, utilization, possession, processing, handling, storage, offer, sale, resale, consumption, or disposal of the Product after transfer of the risk of loss therefor, whether by or for Buyer or any direct or indirect customer, user, or end user of the Product or any other third party, including any product or service using, made with, or including the Product.
  9. WARRANTY.  SBI HEREBY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS BY IT OR ANY OF ITS AFFILIATES, OR REGARDING ANY PRODUCTS, SERVICES OR THINGS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, COMPLIANCE WITH PARTICULAR SPECIFICATIONS, CONDITIONS OR REQUIREMENTS, VALUE, USEFULNESS, WORKMANSHIP, TITLE, AND NON-INFRINGEMENT.
  10. REMEDIES.  SBI’s sole and exclusive liability, responsibility, and obligation related to any non-conformance of the Product is, if SBI is liable for such non-conformance under the Agreement or applicable law, the replacement of the Product such that it meets such warranty, on the condition that Buyer gives SBI written notice of such non-conformance and breach, identifying therein the Product, order of the Product, and non-conformance, within ninety (90) days after Receipt of the Product.  In no event shall SBI be liable, responsible, or obligated for any non-conforming Product in the event (i) that Buyer or any of its direct or indirect customers or any user makes any further use of the Product after any non-conformance is discovered, known, or should be known by Buyer or such customer or user, or (ii) that the Product is used for any purpose or in manner not intended by SBI or misuse, abuse, or unreasonable treatment, handling, or storage, or (iii) of any failure to follow SBI’s directions regarding the Product, or (iv) of any alteration, modification, combination, or change of the Product, or (v) of any negligence, wrongful misconduct, or violation of law by Buyer or any direct or indirect customer or user of the Product. Buyer agrees that the statute of limitation for any claim against SBI under the Agreement related to the Product is limited to one (1) year after the risk of loss to the Product transfers.
  11. LIMITATION OF LIABILITY.  IN NO EVENT SHALL SBI OR ANY AFFILIATE OF SBI BE LIABLE (WHETHER TO BUYER, ANY OF ITS AFFILIATES, OR ANY OF ITS DIRECT OR INDIRECT CUSTOMERS OR PRODUCT USERS) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, LIQUIDATED, OR EXEMPLARY DAMAGES OR LOSSES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OR DEPLETION OF GOODWILL, AND LOST BUSINESS OPPORTUNITIES), EVEN IF FORESEEABLE OR ANY OF THEM HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, WHETHER AS A RESULT OF OR IN CONNECTION WITH ANY PRODUCT OR ITS USE OR UTILIZATION OF ANY KIND, THE AGREEMENT, OR ANY PERFORMANCE, ACT, OR OMISSION UNDER THE AGREEMENT.  SBI REJECTS AND DOES NOT AGREE TO ACCEPT ANY OBLIGATION TO DEFEND OR INDEMNIFY BUYER OR ANY THIRD PARTY UNDER THE AGREEMENT.  IF AND TO THE EXTENT THAT SBI IS LIABLE FOR ANY DAMAGES OR LOSSES (WHETHER FOR DIRECT DAMAGES OR LOSSES OR IF ANY OF THE FOREGOING PROVISIONS OF THIS SECTION 10 IS IN VALID OR UNENFORCEABLE UNDER APPLICABLE LAW), SBI’S AGGREGATE AND CUMULATIVE LIABILITY ARISING FROM ANY PRODUCT SHALL IN NO EVENT EXCEED THE PRICE PAID BY BUYER TO, AND ACTUALLY RECEIVED BY, SBI UNDER THESE TERMS FOR SBI’S SALE OF SUCH PRODUCT TO BUYER AND SHALL IN NO EVENT EXCEED THE SUM OF THE PRICES PAID BY BUYER TO, AND ACTUALLY RECEIVED BY, SBI UNDER THESE TERMS FOR SBI’S SALE OF ALL PRODUCT TO BUYER UNDER THE AGREEMENT. 
  12. LEGAL RESTRICTIONS.  In the event, and solely to the extent, that any part or provision of Sections 8, 9, 10, or 11 of these Terms is invalid or unenforceable under applicable law of any particular state, country, or jurisdiction, such part or provision shall be interpreted or deemed revised for the purpose of such state, country or jurisdiction only so as to be valid and enforceable under such law while preserving, to the greatest permissible under such law, the disclaimers, exclusions, limitations, or shifting set forth in such Sections 8, 9, 10, or 11, as applicable.
  13. INTELLECTUAL PROPERTY; CONFIDENTIALITY.   Nothing in or under the Agreement or any performance is or shall be interpreted to be or give rise to any, or a right or agreement for any, assignment, transfer, conveyance, license, lien, claim, or other right in or to any intellectual property or intellectual property rights of SBI or any of its affiliates, including any related to the development or production of the Product, or any marks or names of SBI or its affiliates, whether expressly or implicitly and whether to Buyer or any other third party.  Buyer shall keep confidential and not disclose, make available, or use any documentation, work, material, data, and information disclosed or provided by or for, or obtained from, SBI, in any form, medium, or format, whether or not identified as confidential or proprietary (collectively, “Confidential Information”, other than any that, and to the extent it, was already known publicly at the time it was so disclosed, provided, or obtained or that, to the extent and after it, becomes known publicly through no fault of Buyer or any of its personnel), except solely as expressly permitted by SBI in advance in writing.  Buyer shall protect the confidentiality of all Confidential Information to the same degree as it protects its own confidential information, but no less than a reasonable degree.  If Buyer or any of its personnel is required to disclose any Confidential Information in an administrative or judicial proceeding, then Buyer shall (i) promptly notify SBI thereof before (unless applicable law prohibits prior notice, then as soon as possible after) such disclosure, (ii) reasonably assist SBI with exercising or asserting legal rights or remedies against such disclosure and/or obtaining a protective order covering such disclosure, and (iii) limit the disclosure to that which is legally required to be disclosed.
  14. FORCE MAJEURE. SBI shall not be in breach of its obligations under the Agreement, or otherwise be liable to Buyer, by reason of any delay in performance, or non-performance, of any of its obligations under the Agreement to the extent that such delay or non-performance is due to circumstances beyond the reasonable control of SBI including acts of God, governmental actions, change in law, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
  15. COMPLIANCE WITH LAW. The Product may be subject to the jurisdiction of the U.S. Export Administration Regulations (the “EAR”) (Title 15 of the U.S. Code of Federal Regulations Part 730 et seq.) and U.S. trade embargo regulations (Title 31 of the U.S. Code of Federal Regulations Part 500 et seq.) and other law. Buyer agrees that it will not, directly or indirectly: (i) reexport, use, utilize, offer, sell, or otherwise transfer or make available the Product, or any part or information thereof, to any country or person in violation of the EAR or any state or federal law of the United States; or (ii) provide the Product, or any party or information thereof, to any person that Buyer knows or has reason to suspect will cause the Product, or any part or information thereof, to be reexported, sold, or otherwise transferred or made available to any country or person in violation of the EAR or any state or federal law of the United States.
  16. GENERAL
    a.     Each right or remedy of SBI under the Agreement is without prejudice to any other right or remedy of SBI whether under the Agreement or otherwise. Failure or delay by SBI in enforcing or partially enforcing any provision of these Terms or the Agreement will not be construed as a waiver of any of its rights under the Agreement.  Any waiver by SBI of any breach of, or any default under, any provision of the Agreement by Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other provisions of the Agreement.
    b.    BUYER UNDERSTANDS AND AGREES THAT ANY CAUSE OF ACTION OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH ANY SALE OF PRODUCT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE SHIPMENT OR COLLECTION OF SUCH PRODUCT UNDER THESE TERMS, OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
    c.    If and to the extent that any provision of the Agreement, or any part thereof, is found by any court, tribunal or agency to be wholly or partly illegal, invalid, void, voidable, or unenforceable, it (i) shall be deemed replaced by a provision that is valid and enforceable and comes closest to expressing the intention of such replaced provision, and (ii) shall otherwise be deemed severable and the remaining provisions or remaining part shall continue in full force and effect.
    d.    The Parties do not intend any third party to be a beneficiary under the Agreement, or any sale, purchase, or transaction hereunder, and nothing in the Agreement shall be construed for any third party to be a third party beneficiary or to confer any third party beneficiary rights or status on any third party.
    e.    The Agreement, and the interpretation and construction of the Agreement, and the validity, enforceability, and performance of the Agreement, and any dispute under the Agreement and the resolution of any dispute under the Agreement, shall be governed by the law of the State of New York and any applicable U.S. federal law, without the application of any conflicts of law provisions that would result in the application of the law of a different jurisdiction. The U.N. Convention on the International Sale of Goods, if and to the extent applicable, is hereby disclaimed and shall not apply to the Agreement or any transaction thereunder. Any action arising under or related to the Agreement shall be vested in either Suffolk County, New York; or the Eastern District of New York of the United States District Court.  Each Party expressly and irrevocably consents and submits to, and waives any objection to, the jurisdiction of such Suffolk County, New York and U.S. federal courts.
    f.    In the Agreement: (i) any reference to any provision of law shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time; (ii) the term “including” to the extent used in these Terms means “including, without limitation” or “including, but not limited to”; (iii) the principle ejusdem generis shall not apply to any provision in these Terms; (iv) the provisions shall not be interpreted against the drafter, and for purposes of any interpretation, both Parties shall be deemed to be drafters of the Agreement; (v) where the Agreement states that a Party “shall” or “will” perform, act, or omit to act, it means that such Party is legally obligated to do so in accordance with the Agreement; (vi) all article and section headings or titles herein are intended solely for the convenience of the Parties, and none will be deemed to affect the meaning or construction of any provision hereof; and (vii) words of any gender used in the Agreement are intended to include any other gender, and words in the singular number include the plural, and vice versa, unless the context clearly indicates otherwise.