THIS PRODUCT HAS NOT BEEN APPROVED BY ANY REGULATORY AGENCY, INCLUDING THE US FOOD AND DRUG ADMINISTRATION (FDA). THIS PRODUCT IS INTENDED FOR R&D PURPOSES ONLY AND IS NOT INTENDED OR FIT FOR HUMAN USE.
All products and services offered for sale by Medibrane, LTD., (“Seller”) and all orders are subject to the terms and conditions stated herein. Except as expressly agreed by an authorized representative of Seller in writing, no other terms and conditions, including any terms and conditions attached to, or contained within, Buyer’s request for quotation, acknowledgment, purchase order or other contract documentation, shall apply. Buyer’s acceptance of the Products delivered by Seller shall constitute an affirmation by Buyer that the terms and conditions set forth herein govern the purchase and sale of the Products, and that Buyer waives any and all objections to any such terms and conditions. THE TERMS OF THIS CONTRACT SHALL SUPERSEDE ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS PROPOSED BY BUYER OR CONTAINED ON BUYER’S PURCHASE ORDER OR ANY DOCUMENT OR INSTRUMENT SUBMITTED BY BUYER.
Indemnity and Intellectual Property Disclaimer
Seller cannot guarantee that the Products will not infringe issued or pending patents and makes no warranties or representations, express or implied, against intellectual property infringement. Buyer acknowledges and understands that this Product is not intended for human use, is intended for R&D purposes only, and has not been approved by any regulatory agency, including the US Food and Drug Administration. Buyer bears sole responsibility for patent clearance and infringement and for protecting and registering any intellectual property rights covering the Products. Buyer agrees to indemnify, defend, and hold harmless Seller and its directors, agents, employees, and contractors, from and against any damages, losses, liabilities, costs, and expenses (including reasonable attorney fees) suffered or incurred as a result of any claim related directly or indirectly to the Products, including, but not limited to, claims for Seller’s default, design defects, product liability, product recall, noncompliance with US Food and Drug Administration, or other regulatory standards and patent infringement, except to the extent attributable to Seller’s gross negligence or willful misconduct as determined by a court of competent jurisdiction. Nothing herein shall be construed as a license or sublicense to operate under any Seller or third-party-owned patent or other intellectual property right.
Disclaimer of Express and Implied Warranties and Damages, Limitation of Liability
Buyer shall be responsible for making its own determination of suitability and completeness for use and conducting any necessary testing. Except as expressly provided in this document, SELLER DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES MADE WITH RESPECT TO THE PRODUCTS AND EXPRESSLY EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. Buyer’s remedies under any Seller’s warranty shall be limited to repair or replacement of the Product or component thereof that failed to conform to such warranty. In no event shall Seller (including its affiliates and subsidiaries) be liable for anticipated or lost profits or for special, punitive, indirect, incidental, or consequential loss or damages.
Inspection and Returned Goods
Medibrane Online store samples are considered custom and are not returnable. Buyer shall have the right to inspect the Products within 30 days of receipt thereof. Buyer shall notify Seller in writing within 30 days of receipt thereof if the Products do not meet specification, and Buyer shall return defective Products to Seller. The Buyer shall be responsible for all costs associated with shipping to and from Seller. If Seller is not notified within the allowed period of inspection set forth above, such Products shall be deemed to be accepted by Buyer, and Buyer shall have no further recourse.
Seller may, at Buyer’s request, furnish technical assistance, advice, and information regarding the Products, if and to the extent that such advice, assistance, and information are conveniently available. It is expressly agreed that there is no obligation to provide such information, which is provided without charge (unless otherwise agreed to in writing between Seller and Buyer) at the Buyer’s risk, and which is provided subject to the disclaimers set forth above.
This Contract and its terms and conditions shall be governed by and construed in accordance with the laws (other than those relating to conflict of laws questions) of the State of Israel. Buyer agrees that any action at law, suit, and equity, or other judicial proceeding with respect thereto, must be brought and maintained in the state courts of record situated in the State of Israel. Cancellation Prior to Shipment In the event Buyer requests that an order for Products it has placed with Seller be cancelled prior to shipment, and Seller agrees, Buyer shall be liable to Seller for all costs incurred by Seller as a result of such cancellation, including, but not limited to, cancellation costs to suppliers and unreimbursed advances on goods, if any, together with any specifically identifiable incidental and consequential expenses.
Tool Ownership Any and all tooling (including, but not limited to, tools, dies, patterns, and molds) manufactured by or at the request of Seller (excluding Buyer-owned molds), or otherwise used by Seller in the production of any Products sold to Buyer, is proprietary to Seller, as is the development, design, and use of the same. Ownership interest in said tooling is retained exclusively by Seller. Molds paid for by Buyer shall not be used in the manufacture of another buyer’s product.