Conditions of Sale

  1. Acceptance of the Customer's order is expressly made conditional on assent to the terms and conditions set forth herein, on the Invoice appearing on the face of this Agreement, and on any other attachment(s) hereto,  all of which constitute the complete agreement between the parties hereto (this “Agreement”). These terms and conditions may not be varied or the Customer's order terminated in any manner, unless by a written agreement with legal consideration subsequently signed by an officer of Nova Biomedical Corporation (“NOVA").Other representatives of NOVA are not authorized to vary or amend any of the terms and conditions of this Agreement. These terms and conditions shall govern over any different or conflicting terms and conditions in anything submitted by the Customer to NOVA (including, without limitation, the Customer’s purchase order).  Failure to specifically dissent to these terms and conditions within a reasonable time of Customer's acceptance of any goods or services (collectively, “Products”) covered by this Agreement shall constitute acceptance of these terms and conditions, which shall be controlling in every case.

  2. Unless stated to the contrary on the face hereof, all Products furnished hereunder will be shipped F.O.B. point of shipment and title in the right of possession to such Products shall pass to the Customer upon NOVA’s delivery of the Products to carrier at point of shipment.

  3. Prices on the Products covered by this Agreement are firm for thirty days from date of the Invoice. Any Products which the Customer requires to be shipped subsequent to thirty days from the date of the Invoice are subject to price changes.  Payment terms are net thirty (30) days from the date of the Invoice, which includes applicable sales, use, or property tax.

  4. Tooling set up, fitting up, drawings, design information, and partial preparation charges when invoiced only cover part of the cost thereof to NOVA. The Customer does not acquire any right, title, or interest in any tooling set up, fitting up, drawings, design information, or inventions resulting therefrom.  All such tooling set ups, fitting ups, drawings, design information, or inventions resulting therefrom remain the exclusive property of NOVA.

  5. All shipping dates are tentative. NOVA will not be responsible for delays or non-performance directly or indirectly caused by governmental regulations or requirements, acts of God, unavailability of materials, work stoppages, slow-downs, boycotts, and other causes (whether or not similar in nature to any of the foregoing) beyond NOVA's reasonable control.  NOVA disclaims any liability for damages of delays in delivery or non-delivery of Products ordered caused in whole or in part by shortages or unavailability of energy and/or materials or supplies unless other arrangements in writing have been made with NOVA covering the Products ordered.

  6. NOVA's extensive line of Products requires close coordination of the Customer's requirements with NOVA's production schedules to avoid possible delays in shipment. Accordingly, NOVA reserves the right to ship approximately forty days in advance of shipping date.

  7. THERE IS NO WARRANTY BY NOVA THAT THE GOODS SHALL BE DELIVERED FREE FROM ANY CLAIM OF ANY THIRD PERSON BY WAY OF INFRINGEMENT.  There is no undertaking by NOVA with respect to patent or trademark infringement.

  8. NOVA warrants that the Products will be free from defects in material and workmanship and that they will conform to their respective labeled specifications from the date of delivery through the warranty period.  NOVA warrants that any Product with a stated expiration date will be free from defects in material and workmanship and will conform to its labeled specifications from the date of delivery until its respective expiration date, provided the Product has not been opened or damaged.  NOVA warrants that any non-meter Products without expiration dates will be free from defects in material and workmanship and that they will conform to their respective labeled specifications for a period of two years from the date of delivery.  NOVA further warrants that no Product bearing its name and covered by this Agreement is adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act.  THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  In the event of a breach of the foregoing, NOVA will, at its option, either replace all non-conforming Products or refund the purchase price.  Such replacement or refund shall be the Customer’s sole and exclusive remedy and in no event shall NOVA be liable to the Customer for loss of profit, loss of use, damage to persons or property, or special, incidental, or consequential damages of any kind resulting from breach of warranty or any other obligation under this Agreement. In no event shall the COMPANY be liable for INDIRECT, SPECIAL, PUNITIVE, incidental, or consequential damages.

  9. The Customer represents and warrants that it will fully comply at all times with the U.S. Foreign Corrupt Practices Act and shall not offer, promise, or directly or indirectly through a third party or otherwise, give anything of value to any government official, political party or candidate or any relative, business associate, or employee thereof, for the purpose of obtaining or retaining any business involving NOVA or its products.  The Customer further represents and warrants that it will comply with all applicable laws, regulations, rules, requirements, or ordinances of all governmental authorities, including without limitation the U.S. Food and Drug Administration, or its foreign equivalent, applicable to the use, re-use, sale, distribution, transportation, exportation, or importation of Products for its particular roles and responsibilities hereunder.

  10. To the extent applicable to its performance under this Agreement, NOVA agrees to comply with the Equal Employment Opportunity Clause required under Executive Order 11246.  The provisions of 29 C.F.R. part 470, the affirmative action commitment for disabled veterans and veterans of the Vietnam era, set forth in 41 C.F.R. 60-250.5, the affirmative action clause for disabled workers, set forth in 41 C.F.R. 60-741.5, and the related regulations of the Secretary of Labor, 41 C.F.R. Chapter 60, are incorporated by reference in this Agreement.  NOVA represents that with respect to the production of Products and/or the performance of any services, NOVA fully complies with the requirements of the Federal Labor Standards Act of 1938, as amended, and the regulations promulgated pursuant to that statute.

  11. In addition to the rights and remedies reserved herein, NOVA shall have all rights and remedies conferred by law and shall not be required to proceed with performance under this Agreement if the Customer is in default to NOVA under this Agreement or any other contract between the Customer and NOVA.

  12. Orders accepted by NOVA cannot be countermanded or shipments deferred or Products returned except with the consent of NOVA and upon terms that will indemnify NOVA against all loss, including, but not limited to, the profit on any part of the order that is canceled. When return of Products is authorized by NOVA, shipping charges on said returned Products are to be prepaid unless otherwise noted by NOVA in its authorization to return. The Customer shall indemnify, defend, and hold NOVA harmless against all claims, liabilities, damages, expenses, judgments, and losses (including reasonable attorneys’  fees) arising from (i) infringement or alleged infringement of any patent, copyright, trade secret, trademark, or other intellectual property or proprietary right as a result of NOVA's compliance with the Customer's designs, specifications, or instructions, (ii) the Customer's breach of any of its obligations hereunder, and (iii) the Customer's use and/or misuse of the Products.

  13. Unless specifically noted hereon, qualification tests and any test data are not included in the selling price. Qualifications tests may be performed by NOVA and test data supplied at the specific request and expense of the Customer. It shall be the Customer's responsibility to promptly provide NOVA with all access and information necessary, including but in no way limited to complete data for correlation studies to bring analyzer(s) on line. Alternatively, the Customer may take responsibility for this activity without participation by NOVA.  In either case, the Customer is responsible for promptly carrying out all sample analyses on the comparison analyzer.