1. APPLICATION AND VALIDITY
1.1 These General Terms and Conditions, together with the specific order, constitute a contract between Physicians Exclusive, LLC d/b/a Microbiome Labs (“Microbiome Labs”) and the customer submitting the order (“Customer”). By submitting an order to Microbiome Labs, Customer indicates their acknowledgement and acceptance of these General Terms and Conditions.
1.2 Any special or general requirements of the Customer stated in offers, orders, purchase conditions, etc. shall not constitute an exemption from the following conditions, unless expressly accepted by Microbiome Labs in writing and these General Terms and Conditions shall be deemed as the entire agreement between the parties on the subject matter contained herein unless otherwise agreed in writing between the Customer and Microbiome Labs.
2.1 The order must indicate specific products, quantity, price, total purchase price, shipping instructions, requested delivery dates, sold-to, and ship-to addresses and any other special instructions.
2.2 All orders are subject to acceptance by Microbiome Labs, in its sole discretion.
2.3 Microbiome Labs may refuse international shipments due to customs restrictions.
3.1 The prices are exclusive of any applicable value added tax (VAT), similar sales tax, and any other taxes. Unless prohibited by statute, Customer agrees to pay to Microbiome Labs the amount of any Federal, State, Local, or other tax, which Microbiome Labs may be required to pay on account of the transportation, sale, or use of the products, to the extent not directly paid by the Customer when due.
3.2 Microbiome Labs reserves the right to adjust its price lists without notice and such new prices shall become effective immediately. Prices of confirmed orders are not subject to change.
4. PAYMENT TERMS
4.1 Unless otherwise agreed in writing, Microbiome Labs shall issue an invoice to the Customer stating when the invoice amount is due. If not otherwise indicated, Customer shall pay within thirty (30) days of the date of the invoice.
4.2 If payment is not received by Microbiome Labs when due, Microbiome Labs reserves the right to hold back further deliveries until payment has taken place. Microbiome Labs shall then be entitled to change, in its discretion, the terms of payment.
4.3 Unless otherwise expressly specified, payment shall be made by bank transfer to Microbiome Labs’ account from the Customer’s account. In case of overdue payment, the Customer shall be obliged to pay interest on the due amount as stated on the invoice, from the due date and until Microbiome Labs has received payment.
4.4 The Customer shall pay all of Microbiome Labs’ costs and expenses, including reasonable attorneys’ fees and expenses, incurred in collecting any amounts not paid as and when due.
5.1 Delivery dates will be established by Microbiome Labs upon receipt of orders from the Customer. Unless stated otherwise in the confirmed order, any times or dates for delivery by Microbiome Labs are estimates.
5.2 Unless otherwise agreed in writing, delivery of the products is made CIP Microbiome Labs’ warehouse location (Incoterms 2020). In the absence of specific instructions, Microbiome Labs will select the carrier and ship to the single location designated by the Customer. Microbiome Labs may deliver the products in one or more shipments and invoice each shipment separately.
5.3 Delivery of the products is conditioned upon the Customer maintaining credit satisfactory to Microbiome Labs and Microbiome Labs may, without notice or liability to the Customer, suspend or delay performance or delivery at any time pending receipt of assurances, including full or partial payment of the amounts owed or prepayment on future orders, adequate to Microbiome Labs in its discretion.
5.4 Risk of loss with respect to the products shall pass to the Customer in accordance with the agreed Incoterms. Title will be transferred to the Customer upon shipment of the products.
5.5 In the event of a lost/stolen package, Customer must promptly notify Microbiome Labs. Microbiome Labs will then investigate and, if appropriate, will file a claim with the shipping carrier.
6. OBLIGATION OF EXAMINING, ACCEPTANCE, AND CONFORMANCE
6.1 The Customer shall immediately after the receipt of a delivery examine the products in order to identify any visual defects or whether any portion fails to conform to the applicable purchase order or the product specifications. In the event of defects or non-conformity to the applicable purchase order and/or product specifications, the Customer may reject the non-conforming portion of the shipment by written notice to Microbiome Labs. Such notice shall specify the manner in which the shipment fails to conform to the purchase order and/or product specifications.
6.2 In the event Customer receives a damaged package, Customer shall promptly contact Microbiome Labs via telephone, and shall save the original box/packaging and all of its contents pending further instruction from Microbiome Labs.
6.3 Non-conformance to the product specifications shall be notified promptly upon discovery by the Customer. Visual defects and non-conformance to the applicable purchase order shall be notified to Microbiome Labs no later than five (5) days from the Customer’s receipt of the shipment. In the absence of any such notice, the Customer shall be deemed to have accepted the shipment. The Customer shall give
Microbiome Labs a reasonable opportunity to inspect the products and/or examine samples of the non-conforming products.
6.4 If any of the products are found to be defective or not to be in conformance with the purchase order and/or the product specifications, Microbiome Labs will use its commercially reasonable efforts to replace such products at no additional cost to the Customer. This shall be the Customer’s sole remedy for any products it rejects hereunder, and replacement cannot be considered as delay of the non-conforming order.
7.1 Prior to returning any products, Customer must call Microbiome Labs at 855-729-5090 to obtain a Return Authorization Number (RMA). Microbiome Labs does not refund or provide return credits for opened or used product. Microbiome Labs does not provide any refunds after 45 days from the date of purchase. Product must be returned to Microbiome Labs in its original condition. Customer must pay return shipping costs. If return is authorized, return credits will be provided less the initial shipping and handling costs.
7.2 Microbiome Labs does not accept returns due to market changes or Customer’s inability to sell the product due to a lack of compliance with the advertised pricing policies or internet selling restrictions (see Section 9).
7.3 Microbiome Labs is not responsible for lost/stolen packages or customs fees.
8.1 The Customer and/or Customer’s clients/customers shall use products in accordance with the product data information and shall follow all recommendations on the product label.
8.2 Microbiome Labs products have not been evaluated by the Food & Drug Administration, and are not intended to prevent, treat, cure, or diagnose any medical condition. Customer agrees that Customer and/or Customer’s clients/customers will only use Microbiome Labs products after consulting with a healthcare practitioner regarding the use of the products, and under the continuing supervision and treatment of the healthcare practitioner.
8.3 The Customer acknowledges that the Customer holds the full responsibility that the use of the products does not infringe patents or other third-party rights and Microbiome Labs disclaims any liability in connection herewith.
8.4 The Customer is not permitted to perform any analysis of the products for chemical composition and structure and shall not reverse-engineer or reproduce the products.
9. ONLINE SALES, INTERNET, AND RESALE RESTRICTIONS
9.1 Microbiome Labs products may only be sold on Customer-owned websites and Microbiome Labs hosted E-commerce websites. Microbiome Labs does not authorize or permit sales of its products on third-party websites (such as Amazon, eBay, and similar sites). Microbiome Labs will pursue the removal of unauthorized listings on third-party websites. Customers who sell Microbiome Labs products shall cooperate with requests related to third-party websites and investigatory inquiries.
9.2 Microbiome Labs has a unilateral Minimum Advertised Price (“MAP”) policy that applies to all Customers reselling Microbiome Labs products in the United States of America and all other countries where Microbiome Labs products are sold, except where prohibited by local laws or regulations. Customer may not advertise Microbiome Labs products at a price below the applicable MAP. The MAP applies only to advertised prices and does not apply to the price at which the products are actually sold or offered for sale, which remains at the discretion of Customer, subject to any pricing restrictions imposed by local laws and regulations applicable in the place of sale. Any advertisements, discounts, rewards programs, coupons, special offers, sales, promotions, or price reductions resulting in a price below MAP must not be advertised in any format, including digital, print, television, radio, internet, or any other off-site advertising. For sake of clarity, the internet restriction includes, but is not limited to, any price below MAP that could be found via an internet search or on any website that directs purchasers to Customer’s website. As this is a unilateral policy, it does not constitute an agreement between Microbiome Labs and Customer. Upon request, Microbiome Labs will provide to Customer a Frequently Asked Questions guide to clarify this MAP policy.
9.3 If Customer violates any of the provisions of Sections 9.1 or 9.2, Microbiome Labs will cancel all pending orders from Customer and reject future orders from Customer. In addition, Microbiome Labs reserves the right to repurchase all of Customer’s inventory of the products at a price equal to Customer’s purchase price, less a 10% restocking fee. If Microbiome Labs exercise this right, Customer shall have an affirmative obligation to return the inventory as requested by Microbiome Labs.
10.1 The sale of Microbiome Labs products may be subject to national and international regulatory restrictions, and Microbiome Labs hereby expressly disclaims any liability whatsoever for any promotion, marketing, or resale to Customer’s direct or indirect clients/customers and/or the use of products by the Customer’s direct or indirect clients/customers.
10.2 Customer holds the full responsibility for its activities hereunder and the specific use of products that are sold or distributed by the Customer in terms of ensuring regulatory compliance, including, but not limited to, product handling, product documentation, product labeling, safety documentation, import/export documentation, and any other legal requirements related to the import, resale, handling, and use of the products by the Customer and its direct or indirect clients/customers.
11. RECALL OR WITHDRAWAL
11.1 In the event it is necessary to recall or withdraw any Microbiome Labs products from the market due to the instructions of the relevant government authority or the reasonable commercial decision of Microbiome Labs for safety, quality, or technical reason, Microbiome Labs will notify Customer of such recall or withdrawal as soon as reasonably possible.
11.2 Customer shall comply with Microbiome Labs’ instructions regarding recall or withdrawal of the products from Customer’s stock, clients/customers, or market, and Customer shall, at all times, be obligated to keep records sufficient to track and trace all products.
12. LIMITED WARRANTY
12.1 Microbiome Labs warrants and represents that (i) it has title to the products; (ii) the products are free of any third party liens or encumbrances; (iii) at the time of transfer of the products from Microbiome Labs to the Customer the products conform to the applicable product specifications contained in the product information in effect at the time of sale (product data sheets may be subject to change), and (v) that the product, as sold, as well as the production of the product do not infringe third-party patent rights.
12.2 This warranty shall apply only to the products received by the Customer in the same unbroken package as actually shipped by Microbiome Labs. Whether intentional or accidental, any breakage, leakage, or subdivision that will have a direct bearing on the quality and characteristics of the products, as well as any storage or handling inconsistent with Microbiome Labs’ storage and handling instructions concerning the products, shall render this warranty null and void with respect to the products so affected.
12.3 The foregoing warranty is the Customer’s exclusive warranty and is made expressly in lieu of all other warranties of any kind, express, implied or otherwise, including, without limitation, warranties of merchantability, fitness for a particular purpose or use, non-infringement of any third-party intellectual property rights resulting from any use of the products, and any warranty arising by law, out of any course of dealing or performance, custom or industry standard. Microbiome Labs does not authorize the Customer or any other person to make any warranties regarding its products on behalf of Novozymes and no warranties or statements of any kind by the Customer or any other person shall bind Novozymes.
13. LIMITATION OF LIABILITY AND INDEMNIFICATION
13.1 MICROBIOME LABS SHALL INDEMNIFY AND HOLD CUSTOMER HARMLESS FROM BREACH OF THE LIMITED WARRANTIES IN SECTION 12 AND PRODUCT LIABILITY CLAIMS UNDER APPLICABLE MANDATORY STATUTORY PROVISIONS WHERE IT IS ESTABLISHED THAT SUCH LIABILITY ARISES DIRECTLY FROM DEFECTS IN PRODUCTS WHEN USED IN ACCORDANCE WITH ITS INTENDED USE AND RELEVANT SAFETY DOCUMENTATION.
13.2 ANY ACTION BY CUSTOMER UNDER OR RELATING TO THESE TERMS OR ANY PRODUCTS SOLD BY MICROBIOME LABS MUST BE COMMENCED WITHIN NINETY (90) DAYS AFTER SUCH CAUSE OF ACTION HAS ACCRUED. MICROBIOME LABS’ LIABILITY FOR FAILURE TO FULFILL ITS OBLIGATIONS UNDER THE WARRANTY STATED HEREIN OR ANY OTHER LIABILITY UNDER OR IN CONNECTION WITH THIS CONTRACT OR ANY PRODUCTS SUPPLIED HEREUNDER SHALL BE LIMITED TO THE AMOUNT OF THE PURCHASE PRICE OF THE PRODUCTS AT ISSUE.
13.3 NOTWITHSTANDING ANYTHING TO THE CONTRARY, MICROBIOME LABS SHALL NOT IN ANY EVENT BE LIABLE UNDER ANY CIRCUMSTANCES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, FOR ANY LOSS OF PROFIT, ANY LOSSES DUE TO DELAY IN DELIVERY, ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR LOSSES ARISING FROM THIS CONTRACT, ANY PRODUCTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, FAILURE TO REALIZE EXPECTED SAVINGS, ANY
CLAIM AGAINST CUSTOMER BY A THIRD PARTY, OR ANY OTHER COMMERCIAL OR ECONOMIC LOSSES OF ANY KIND, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
13.4 The Customer shall hold harmless and indemnify Microbiome Labs from and against any liability, obligation, loss, damage, fees, fine, penalty, action, claim, judgment, settlement, proceeding, cost, expense and disbursement of any kind or nature whatsoever, including all reasonable attorney’s fees, costs and expenses of defense, appeal, and settlement of any suits, actions, or proceedings instituted against Microbiome Labs and all costs of investigation in connection therewith that may be imposed on, incurred by, or asserted against Microbiome Labs by a third party arising out of any order of products hereunder, except only if specifically covered by the above listed limited warranties and indemnification.
14.1 Microbiome Labs shall be entitled to assign its rights hereunder (in whole or in part) or to subcontract any part of work or services to be provided hereunder as it deems necessary or desirable.
14.2 The Customer shall not assign or transfer its obligations or any interest in or moneys payable hereunder without prior written consent of Microbiome Labs. To the extent assignment is made, it is hereby agreed and acknowledged that the Customer shall remain directly responsible and liable towards Microbiome Labs for any default and/or breach of these General Terms and Conditions by such assignee.
15. INTELLECTUAL PROPERTY
15.1 The sale of the products hereunder does not convey to the Customer or any other person any right, title, license, or other interest of any kind with respect to any intellectual property rights relating to the products, hereunder without limitation, patents, patent applications or trademarks, except that the Customer shall have an implied license to Microbiome Labs owned and controlled intellectual property rights to use product bought from Microbiome Labs for the purpose stated in the product documentation unless Microbiome Labs notifies the Customer otherwise.
16. FORCE MAJEURE
16.1 Microbiome Labs shall not be liable to the Customer for any damages or failure to make delivery in respect of any orders accepted by Novozymes for the production or sale of any products where such failure is due to fire, strike, labor trouble, accident to machinery, power failure, inability to obtain raw materials, war, epidemic or pandemic, quarantine restrictions, lack of or failure of transportation, delay in delivery or defects in goods supplied by Microbiome Labs’ suppliers or subcontractors, act of God, regulations of any governmental authority, incorrect, delayed, or incomplete information provided by the Customer, or any cause or condition beyond the reasonable control of Microbiome Labs.
16.2 Further, the occurrence of any such circumstance shall operate to extend Microbiome Labs’ time of performance hereunder for a period not less than the period of delay caused by such circumstances. In the
event of any such circumstance, Microbiome Labs may allocate its production and deliveries among its customers as it may decide in its sole discretion.
17. GOVERNING LAW – JURISDICTION
17.1 These General Terms and Conditions shall be construed and interpreted pursuant to the substantive laws of the State of Illinois, without giving effect to principles of conflict of laws. The United Nations Convention on Contracts of the International Sale of Goods (CISG) shall not apply. The English wording of these General Terms and Conditions shall prevail. Any dispute relating to the sale of products hereunder or the application or interpretation of these Terms and Conditions shall be referred to AAA arbitration in the United States.
18.1 The provisions of these General Terms and Conditions are hereby deemed by the parties to be severable, and the invalidity or unenforceability of any one or more of the provisions of these General Terms and Conditions shall not affect the validity and enforceability of the remaining provisions thereof. The parties agree that any provision(s) found invalid or unenforceable shall be deemed modified to the minimum extent necessary to make such provisions consistent with applicable law.