GENERAL TERMS & CONDITIONS
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THIS WEB SITE. YOUR USE OF THIS WEB SITE CONFIRMS YOUR UNCONDITIONAL ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, DO NOT USE THIS WEB SITE.
1. Products, Content and Specifications. All features, content, specifications, products and prices of products and services described or depicted on this Web Site, www.auviva.com, www.viapep.com and www.gmaxhp.com (this "Web Site"), are subject to change at any time without notice. Certain weights, measures and similar descriptions are approximate and are provided for convenience purposes only. The Viapep and GMax Microproteins (GMax MP) brands operate under the registered business of Auviva, Inc. and operates this Web Site making all reasonable efforts to accurately display the attributes of products. The inclusion of any products or services on this Web Site at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased from this Web Site. By placing an order, you represent that the products ordered will be used only in a lawful manner.
2. Shipping Limitations. When an order is placed, it will be shipping to an address designated by the purchaser as long as that shipping address is compliant with the shipping restrictions contained on this Web Site. All purchases from this Web Site are made pursuant to a shipment contract. As a result, risk of loss and title for items purchased from this Web Site pass to you upon delivery of the items to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments.
3. Accuracy of Information. We attempt to ensure that information on this Web Site is complete, accurate and current. Despite our efforts, the information on this Web Site may occasionally be inaccurate, incomplete or out of date. We make no representation as to the completeness, accuracy or correctness of any information on this Web Site. We may make changes in information about price and availability without notice. While it is our practice to confirm orders by email, the receipt of an email order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service. We reserve the right, without prior notice, to limit the order quantity on any product or service and/or to refuse service to any customer. We also may require verification of information prior to the acceptance and/or shipment of any order.
4. Use of this Web Site. The design of this Web Site and all text, graphics, information, content, and other material displayed on or that can be downloaded from this Web Site may be protected by copyright, trademark and other laws and may not be used except as permitted in these Terms and Conditions or with prior written permission of the owner of such material. All rights reserved. You may not modify the information or materials displayed on or that can be downloaded from this Web Site in any way or reproduce or publicly display, perform, or distribute or otherwise use any such information or materials for any public or commercial purpose. Any unauthorized use of any such information or materials may violate copyright laws, trademark laws, laws of privacy and publicity and other laws and regulations.
5. Trademarks. Certain trademarks, trade names, service marks and logos used or displayed on this Web Site are registered and unregistered trademarks, trade names and service marks of Auviva, Viapep, Soypep and its affiliates. Nothing contained on this Web Site grants or should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademarks, trade names, service marks or logos displayed on this Web Site without the written permission of Auviva, Inc.
6. Linking to this Web Site. Creating or maintaining any link from another Web site to any page on this Web Site without our prior written permission is prohibited. Running or displaying this Web Site or any information or material displayed on this Web Site in frames or through similar means on another Web site without our prior written permission is prohibited. Any permitted links to this Web Site must comply will all applicable laws, rule and regulations.
7. Third Party Links. From time to time, this Web Site may contain links to Web sites that are not owned, operated or controlled by Auviva, Viapep, GMax Microproteins (GMax MP) or their respective. All such links are provided solely as a convenience to you. If you use these links, you will leave this Web Site. Neither we nor any of our respective affiliates are responsible for any content, materials or other information located on or accessible from any other Web site. Neither we nor any of our respective affiliates endorse, guarantee, or make any representations or warranties regarding any other Web sites, or any content, materials or other information located or accessible from any other Web sites, or the results that you may obtain from using any other Web sites. If you decide to access any other Web sites linked to or from this Web Site, you do so entirely at your own risk.
8. Inappropriate Material. You are prohibited from posting or transmitting any unlawful, threatening, defamatory, libelous, obscene, pornographic or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense or give rise to civil liability, or otherwise violate any law. In addition to any remedies that we may have at law or in equity, if we determine, in our sole discretion, that you have violated or are likely to violate the foregoing prohibitions, we may take any action we deem necessary to cure or prevent the violation, including without limitation, the immediate removal of the related materials from this Web Site. We will fully cooperate with any law enforcement authorities or court order or subpoena requesting or directing us to disclose the identity of anyone posting such materials.
9. User Information. Other than personally identifiable information, which is subject to this Web Site's Privacy Statement, any material, information, suggestions, ideas, concepts, know-how, techniques, questions, comments or other communication you transmit or post to this Web Site in any manner ("User Communications") is and will be considered non-confidential and non-proprietary. Personally identifiable information that you voluntarily post on any part of this Web Site that is viewable by the public is not subject to this Web Site's Privacy Statement and is considered User Communications. We and our respective affiliates and our or their designees may use any or all User Communications for any purpose whatsoever, including, without limitation, reproduction, transmission, disclosure, publication, broadcast, development, manufacturing and/or marketing in any manner whatsoever for any or all commercial or non-commercial purposes. We may, but are not obligated to, monitor or review any User Communications. We will have no obligation to use, return, review, or respond to any User Communications. We will have no liability related to the content of any such User Communications, whether or not arising under the laws of copyright, libel, privacy, obscenity, or otherwise. We retain the right to remove any or all User Communications that includes any material we deem inappropriate or unacceptable.
10. DISCLAIMERS. YOUR USE OF THIS SITE IS AT YOUR RISK. THE INFORMATION, MATERIALS AND SERVICES PROVIDED ON OR THROUGH THIS WEB SITE ARE PROVIDED "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. NEITHER AUVIVA, VIAPEP, GMAX MICROPROTEINS (GMAX MP) NOR ANY OF THEIR RESPECTIVE AFFILIATES WARRANT THE ACCURACY OR COMPLETENESS OF THE INFORMATION, MATERIALS OR SERVICES PROVIDED ON OR THROUGH THIS WEB SITE. THE INFORMATION, MATERIALS AND SERVICES PROVIDED ON OR THROUGH THIS WEB SITE MAY BE OUT OF DATE, AND NEITHER AUVIVA, VIAPEP, GMAX MICROPROTEINS (GMAX MP) NOR ANY OF THEIR RESPECTIVE AFFILIATES MAKES ANY COMMITMENT OR ASSUMES ANY DUTY TO UPDATE SUCH INFORMATION, MATERIALS OR SERVICES. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.
ALL PRODUCTS AND SERVICES PURCHASED ON OR THROUGH THIS WEB SITE ARE NOT SUBJECT WARRANTIES. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, ANY IMPLIED WARRANTIES WITH RESPECT TO THE PRODUCTS AND SERVICES LISTED OR PURCHASED ON OR THROUGH THIS WEB SITE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE HEREBY EXPRESSLY DISCLAIM ALL LIABILITY FOR PRODUCT DEFECT OR FAILURE, CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION, NON-COMPLIANCE WITH ANY CODES, OR MISAPPROPRIATION. WE MAKE NO WARRANTIES TO THOSE DEFINED AS "CONSUMERS" IN THE MAGNUSON-MOSS WARRANTY-FEDERAL TRADE COMMISSION IMPROVEMENTS ACT. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.
11. LIMITATIONS OF LIABILITY. Auviva, Inc. does not assume any responsibility, or will not be liable, for any damages to, or any viruses that may infect, your computer, telecommunication equipment, or other property caused by or arising from your access to, use of, or browsing this Web Site, or your downloading of any information or materials from this Web Site. IN NO EVENT WILL AUVIVA, VIAPEP, GMAX MICROPROTEINS (GMAX MP) OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, SUCCESSORS OR ASSIGNS, NOR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR TRANSMISSION OF THIS WEB SITE, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THIS WEB SITE, ANY WEB SITES LINKED TO THIS WEB SITE, OR THE MATERIALS, INFORMATION OR SERVICES CONTAINED ON ANY OR ALL SUCH WEB SITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.
IN THE EVENT OF ANY PROBLEM WITH THIS WEB SITE OR ANY CONTENT, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THIS WEB SITE. IN THE EVENT OF ANY PROBLEM WITH THE PRODUCTS OR SERVICES THAT YOU HAVE PURCHASED ON OR THROUGH THIS WEB SITE, YOU AGREE THAT YOUR SOLE REMEDY, IF ANY, IS FROM THE MANUFACTURER OF SUCH PRODUCTS OR SUPPLIER OF SUCH SERVICES, IN ACCORDANCE WITH SUCH MANUFACTURER'S OR SUPPLIER'S WARRANTY, OR TO SEEK A RETURN AND REFUND FOR SUCH PRODUCT OR SERVICES IN ACCORDANCE WITH THE RETURNS AND REFUNDS POLICIES POSTED ON THIS WEB SITE.
12. Revisions to these Terms and Conditions. These Terms and Conditions may be revised at any time and from time to time by updating this posting. You should visit this page from time to time to review the then current Terms and Conditions because they are binding on you. Certain provisions of these Terms and Conditions may be superseded by legal notices or terms located on particular pages of this Web Site.
13. Choice of Law; Jurisdiction. These Terms and Conditions supersede any other agreement between you and Auviva, Inc. to the extent necessary to resolve any inconsistency or ambiguity between them. These Terms and Conditions will be governed by and construed in accordance with the laws of the state of Delaware, without giving effect to any principles of conflicts of laws. Any action seeking legal or equitable relief arising out of or relating to this Web Site will be brought only in the federal or state courts of the state of Delaware. A printed version of these Terms and Conditions will be admissible in judicial and administrative proceedings based upon or relating to these Terms and Conditions to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
14. Termination. You or we may suspend or terminate your account or your use of this Web Site at any time, for any reason or for no reason. You are personally liable for any orders placed or charges incurred through your account prior to termination. We reserve the right to change, suspend, or discontinue all or any aspect of this Web Site at any time without notice.
15. Health Related Information. The information contained in the Web Site is provided for informational purposes only and is not meant to substitute for the advice provided by your doctor or other health care professional. You should not use the information available on or through the Web Site for diagnosing or treating a health problem or disease, or prescribing any medication. Information and statements regarding dietary supplements have not been evaluated by the Food and Drug Administration and are not intended to diagnose, treat, cure, or prevent any disease. You should read carefully all product information prior to use.
16. Indemnity. You agree to indemnify and hold Auviva, Inc., the Viapep or GMax Microproteins (GMax MP) brands and affiliates, subsidiaries, officers, directors, employees, successors and assigns, harmless from any claim, loss or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of our Web Site, your connection to our Web Site, your violation of these Terms and Conditions, or your violation of any rights of another party. This indemnity survives termination of these Terms and Conditions.
17. Domestic Use; Export Restriction. We control the Web Site from our offices within the United States of America. We make no representation that the Web Site or its content (including, without limitation, any products or services available on or through the Web Site) are appropriate or available for use in other locations. Users who access the Web Site from outside the United States of America do so on their own initiative and must bear all responsibility for compliance with local laws, if applicable. Further, the United States export control laws prohibit the export of certain technical data and software to certain territories. No content from the Web Site may be downloaded in violation of United States law.
18. General. Our failure to exercise or enforce any right or provision of these Terms and Conditions shall not constitute a waiver of such right or provision by us. If any provision of these Terms and Conditions is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of our Terms and Conditions remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Web Site or our Terms and Conditions must be filed within one (1) year after such claim or cause of action arose or be forever barred.
19. Additional Assistance. If you do not understand any of the foregoing Terms and Conditions or if you have any questions or comments, we invite you to contact Auviva, Inc. at contact@auviva.com.
Updated: 26 December 2015
TERMS AND CONDITIONS OF SALE
1. Acceptance of Terms — By purchasing and accepting delivery of products supplied by Auviva, Inc. (“Products”) you agree to be bound by these terms and conditions (the “Terms and Conditions”). Terms or conditions contained in any order form or other document submitted by you which are inconsistent with, or in addition to, these Terms and Conditions are rejected, objected to and shall be deemed void and of no force or effect.
2. Changes — Once submitted, any change(s) to your order(s) may be made only with advance written approval of Auviva, Inc. and such changes may require different terms, including a change in the price and/or time of delivery. Once submitted, you may not cancel any order unless cancellation is expressly approved by Auviva, Inc. in writing, which approval may be contingent on your payment of Auviva, Inc.’s costs or other charges, including, but not limited to, storage and shipment costs, costs of producing non-standard materials, costs of purchasing non-returnable materials, cancellation costs imposed on Auviva, Inc. by its suppliers, and any other costs resulting from cancellation. A verified bill of costs issued by an officer or other authorized representative of Auviva, Inc. shall be conclusive as to the amount of such costs. Auviva, Inc. reserves the right to cancel any order, in whole or in part, upon your breach of these terms and conditions or your bankruptcy, insolvency, dissolution, receivership proceedings, or upon the occurrence of any event leading Auviva, Inc. to reasonably question your willingness or ability to perform.
3. Delivery, claims — All sales will be delivered Ex Works Auviva, Inc.'s shipping point unless otherwise noted. If shipping and handling charges are quoted or invoiced, they will include charges in addition to actual freight costs. Delivery of Products to the carrier at Auviva, Inc.'s shipping point shall constitute delivery to you and you shall bear all risk of loss or damage in transit. The general method of shipment for each item is listed in Auviva, Inc.'s product directory. However, Auviva, Inc. reserves the right, in its sole discretion, to determine the exact method of shipment for any particular shipment. Auviva, Inc. reserves the right to make delivery in installments, all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve you of your obligations to accept remaining deliveries. Immediately upon your receipt of any Products shipped hereunder, you shall inspect the same and shall notify Auviva, Inc. in writing of any claims for shortages, defects or damages and shall hold Products for Auviva, Inc.'s written instructions concerning disposition. If you fail to so notify Auviva, Inc. within five days after the Products have been received by you, such Products shall conclusively be deemed to conform to the terms and conditions hereof and to have been irrevocably accepted by the you.
4. Delays — Any specified delivery dates are estimates only and do not represent a promise by Auviva, Inc. to deliver Products at a date certain. Auviva, Inc. shall not be liable for any loss, damage or penalty as a result of any delay in or failure to manufacture, deliver or otherwise perform hereunder due to any cause beyond Auviva, Inc.'s reasonable control, including, without limitation, unsuccessful reactions, act(s) of you, embargo or other governmental act, regulation or request affecting the conduct of Auviva, Inc.'s business, fire, explosion, accident, theft, vandalism, riot, acts of war, strikes or other labor difficulties, lightning, flood, windstorm or other acts of God, delay in transportation, or inability to obtain necessary labor, fuel, materials, supplies or power at current prices. If any such event continues for longer than 180 days, either party may terminate your order and you will pay Auviva, Inc. for work performed prior to termination and all reasonable expenses incurred by Auviva, Inc. as a result of termination. In the event of delays in delivery or performance caused by force majeure or by you, the date of delivery or performance shall be extended by the period of time Auviva, Inc. is actually delayed or as mutually agreed. If, for reasons other than the foregoing, Auviva, Inc. should default or delay or not deliver Products, your sole remedy against Auviva, Inc. is an option to cancel your purchase order, through prior written notice to Auviva, Inc..
5. Security Interest in Unsold Inventory — To secure your obligation to pay Auviva, Inc. for the purchase of products, you grant to Auviva, Inc. a purchase money security interest in all products purchased from Auviva, Inc., and in all proceeds thereof. You agree to execute UCC Financing Statements and such other documents as may be necessary from time to time and to otherwise assist Auviva, Inc. in perfecting its security interest, if requested.
6. Allocation of Products — If Auviva, Inc. is unable for any reason to supply the total demands for Products specified in your order, Auviva, Inc. may allocate its viable supply among any or all customers (including Auviva, Inc.’s distributors) on such basis as Auviva, Inc. may deem fair and practical, without liability for any failure of performance which may result therefrom.
7. Payment and Interest — Unless otherwise stated, payment in full shall be made within 30 days of invoice. Auviva, Inc. reserves the right to require an advanced deposit of up to 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 Auviva, Inc., in its sole and unfettered discretion, deems the ultimate collectability of the purchase price to be in doubt, Auviva, Inc. may, without notice to you, 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. In the event of default by you in the payment of the purchase price or otherwise, Auviva, Inc., at its option, without prejudice to any other of Auviva, Inc.'s lawful remedies, may defer delivery, cancel your order and any other order of you, or sell any undelivered products on hand for the account of you and apply such proceeds as a credit, without set-off or deduction of any kind, against the agreed upon purchase price, and you agree to pay the balance then due to Auviva, Inc. on demand. You agree to pay all costs, including, but not limited to, reasonable attorney and accounting fees and other expenses of collection resulting from any default by you in any of the terms hereof. Invoices remaining unpaid after their due date will be subject to an interest charge of 1.5% per month (or the maximum rate allowed by law). You must pay all costs of collection on unpaid amounts, including (without limitation) attorneys’ fees and related costs.
8. Taxes and other charges — Auviva, Inc. shall not be responsible for the payment of any use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between, with the sole exception of any sales taxes invoiced and collected from you by Auviva, Inc.. All other such charges (if any) must be paid by you separately and in addition to the prices quoted or invoiced. In the event Auviva, Inc. is required to pay any such tax, fee or charge, you shall reimburse Auviva, Inc. therefore; or, in lieu of such payment, you shall provide Auviva, Inc. at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
9. Pricing — Any quotation provided by Auviva, Inc. is firm only if you place a corresponding order within the time specified on the quote or, if no time period is mentioned, within 30 days. You must request shipment of the entire quantity of Products ordered within 6 months from the date of order, otherwise, Auviva, Inc.’s standard prices at time of shipment may apply, at Auviva, Inc.’s option, to future deliveries.
10. Price Changes — Shipment will be made promptly even if prices have been nominally increased. Price changes will be automatically applied to your invoice. Notwithstanding any price quotation or prices listed by Auviva, Inc., if at any time prior to delivery Auviva, Inc.’s costs of materials have increased by 10% or more, then Auviva, Inc. may cancel any accepted but undelivered orders or condition the continuance of any order on your agreement to a corresponding increase in price.
11. Warranties — Auviva, Inc. warrants that its products shall, at the time of delivery, conform to the description of such products as provided to you by Auviva, Inc. through Auviva, Inc.'s product directory, analytical data or other then-current literature. THIS WARRANTY IS EXCLUSIVE, AND AUVIVA, INC. MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF ANY THIRD-PARTY PATENT OR INTELLECTUAL PROPERTY RIGHTS. Auviva, Inc.'s warranties made in connection with this sale shall not be effective if Auviva, Inc. has determined, in its sole discretion, that you have misused the Products in any manner, have failed to use the Products in accordance with industry standards and practices, or have failed to use the Products in accordance with instructions, if any, furnished by Auviva, Inc.. AUVIVA, INC.'S SOLE AND EXCLUSIVE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO PRODUCTS PROVED TO AUVIVA, INC.’S SATISFACTION TO BE DEFECTIVE OR NONCONFORMING SHALL BE REPLACEMENT OF SUCH PRODUCTS WITHOUT CHARGE OR REFUND OF THE PURCHASE PRICE, IN AUVIVA, INC.'S SOLE DISCRETION, UPON THE RETURN OF SUCH PRODUCTS IN ACCORDANCE WITH AUVIVA, INC.'S INSTRUCTIONS. AUVIVA, INC. SHALL NOT IN ANY EVENT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCTS, EVEN IF AUVIVA, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, COST OF CAPITAL, LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, ANY LIABILITY OF BUYER TO A THIRD PARTY, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH PRODUCT INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY OR PROPERTY DAMAGE UNLESS SUCH PERSONAL INJURY OR PROPERTY DAMAGE IS CAUSED BY AUVIVA, INC.’S GROSS NEGLIGENCE. THE EXCLUSION OF SUCH DAMAGES AND/OR CLAIMS SHALL BE DEEMED INDEPENDENT OF, AND SHALL SURVIVE, ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY ARISING FROM THE PURCHASE AND/OR THESE TERMS AND CONDITIONS. AUVIVA, INC.’S LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO CASE EXCEED THE CONTRACT PRICE FOR THE SPECIFIC PRODUCTS THAT GIVE RISE TO THE BREACH. THESE EXCLUSIONS AND LIMITATIONS ON DAMAGES SHALL APPLY REGARDLESS OF HOW THE LOSS OR DAMAGE MAY BE CAUSED AND AGAINST ANY THEORY OF LIABILITY, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY. ALL CLAIMS MUST BE BROUGHT WITHIN ONE (1) YEAR OF SHIPMENT, REGARDLESS OF THEIR NATURE.
12. Your Use of Products — Auviva, Inc.'s Products are intended primarily for laboratory research purposes and, unless otherwise stated on product labels, in Auviva, Inc.'s product directory or in other literature furnished to you, are not to be used for any other purposes, including but not limited to, in vitro diagnostic purposes, in foods, drugs, medical devices or cosmetics for humans or animals or for commercial purposes. You acknowledge that the Products have not been tested by Auviva, Inc. for safety and efficacy in food, drug, medical device, cosmetic, commercial or any other use, unless otherwise stated in Auviva, Inc.'s literature furnished to you. You expressly represent and warrant to Auviva, Inc. that you will properly test, use, manufacture and market any Products purchased from Auviva, Inc. and/or materials produced with Products purchased from Auviva, Inc. 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, now and hereinafter enacted. You further warrant to Auviva, Inc. that any material produced with Products from Auviva, Inc. shall not be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act and shall not be materials which may not, under Sections 404, 505, or 512 of the Act, be introduced into interstate commerce.
13. You realize that, since Auviva, Inc.'s Products are, unless otherwise stated, intended primarily for research purposes, they may not be on the Toxic Substances Control Act (TSCA) inventory. You assume responsibility to assure that the Products purchased from Auviva, Inc. are approved for use under TSCA, if applicable. You have the responsibility to verify the hazards and to conduct any further research necessary to learn the hazards involved in using Products purchased from Auviva, Inc. You also assume the duty to warn your employees, those associated with you and any auxiliary personnel (such as freight handlers, etc.) of any risks involved in using or handling the Products. You agree to comply with instructions, if any, furnished by Auviva, Inc. relating to the use of the Products and not misuse the Products in any manner. If the Products purchased from Auviva, Inc. are to be repackaged, relabeled or used as starting material or components of other products, you agree that you will verify Auviva, Inc.'s assay of the Products. No Products purchased from Auviva, Inc. shall, unless otherwise stated, be considered to be foods, drugs, medical devices or cosmetics.
14. Resale, Distribution and Export Prohibited — You warrant to Auviva, Inc. that you will use the Products directly and as permitted by Section 12 above, and you further agree that the Products may not be marketed, distributed, resold or exported by you for any purpose.
15. Patent disclaimer — Auviva, Inc. does not warrant that the use or sale of the Products delivered hereunder will not infringe the claims of any United States or other patents covering the product itself or the use thereof in combination with other products or in the operation of any process.
16. Returns — Products may not be returned for credit except with Auviva, Inc.'s permission, and then only in strict compliance with Auviva, Inc.'s return shipment instructions. You must obtain advance written authorization from Auviva, Inc. and a written return authorization document in the form then in use by Auviva, Inc., prior to returning any Products. Certain items and quantities may not be returned for credit or under any circumstances. These items include, but are not limited to: diagnostic reagents, refrigerated or frozen products; reagents and standards which have passed their expiration dates; custom products or special orders; products missing labels, parts, or instruction manuals; and books, computer software and equipment removed from their original packaging. Any returned items may be subject to a 20% processing fee and must be returned within 90 days of purchase.
17. Technical Assistance — At your request, Auviva, Inc. may, in Auviva, Inc.'s sole and absolute discretion, furnish technical assistance and information with respect to Auviva, Inc.'s Products. AUVIVA, INC. 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 AUVIVA, INC. OR ITS PERSONNEL. ANY SUGGESTIONS BY AUVIVA, INC. REGARDING USE, SELECTION, APPLICATION OR SUITABILITY OF THE PRODUCTS SHALL NOT BE CONSTRUED AS AN EXPRESS WARRANTY UNLESS SPECIFICALLY DESIGNATED AS SUCH IN A WRITING SIGNED BY AN OFFICER OR OTHER AUTHORIZED REPRESENTATIVE OF AUVIVA, INC.
18. Miscellaneous — Auviva, Inc.'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 Auviva, Inc.'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 Auviva, Inc. 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. If any of these terms shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. The section headings herein are for convenience only; they form no part of the Terms and Conditions and shall not affect their interpretation. These Terms and Conditions 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.
19. Governing Law, Disputes — All disputes allegedly arising from the legality, interpretation, application, or performance of your order, the Products or any of these Terms and Conditions shall be governed by the laws of the State of Delaware including its conflict of laws principles. Each party agrees that any dispute arising between them which results in either party instituting court proceedings shall be governed by and construed in accordance with the laws of the state of Delaware, without giving effect to any principles of conflicts of laws. Any action seeking legal or equitable relief arising out of or relating to these Terms and Conditions will be brought only in the federal or state courts of the state of Delaware. Notwithstanding the foregoing, nothing in this section shall prevent Auviva, Inc. from bringing a claim in any court having jurisdiction over you to enjoin infringement of Auviva, Inc.’s trademark, patent or other intellectual property rights, or to prevent irreparable harm to Auviva, Inc. 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.
Updated: 26 December 2015