Terms & Conditions
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By visiting xenotech.com, you agree that the laws of the state of Kansas, without regard to principles of conflict of laws, will govern these Conditions of Use and any dispute of any sort that might arise between you and SEKISUI XenoTech, LLC or its affiliates. See below for further details.
Terms and Conditions – Products
Basis of Contract
These Terms and Conditions, together with Supplier’s invoice to which these terms and conditions relate (collectively, these “Terms”) govern the supply by SEKISUI XenoTech, LLC, a Kansas limited liability company (“Supplier”), to recipient (“Recipient”) and the use by Recipient of “Products” (as defined below by these Terms) to the exclusion of any inconsistent or additional terms or conditions that Recipient may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. These Terms and any related written supply or similar order submitted by Recipient to Supplier that provides for the supply of Product and that is accepted by Supplier as evidenced by Supplier’s signature on such supply or similar order (an “Accepted Supply Order”) constitute the entire “Contract between Supplier and such Recipient for the supply of the Products covered thereby; provided that any inconsistency between the terms of an Accepted Supply Order and these Terms shall be resolved in favor of these Terms; and provided further that if Recipient is a party to a Distributor, Resupply (or similar) Agreement with Supplier, such Distributor, Resupply (or similar) Agreement together with these Terms and any Accepted Supply Order shall constitute the entire “Contract” between Supplier and such Recipient for the supply of the Products covered thereby. In such case, any inconsistency between the Distributor, Resupply (or similar) Agreement, these Terms and any such Accepted Supply Order shall be resolved in the following order of priority: (a) first in favor of the terms of the Distributor, Resupply (or similar) Agreement and then (b) in favor of these Terms, unless the parties otherwise expressly agree in writing.
Recipient acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Supplier that is not set out in the Contract. Many samples, drawings, descriptive matter or advertising issued by Supplier in any descriptions or illustrations contained in Supplier’s marketing materials are issued or published for the sole purpose of giving an approximate idea of the Products described in them. They shall not form a part of the Contract or any other contract between Supplier and Recipient for the supply of Products.
As used in these Terms, the term “Products” means consumable products used in biomedical research processes, including but not limited to cells, cell lines, subcellular fractions, biological reagents derived from human and animal tissues, and chemical reagents.
Recipient acknowledges that the Products are experimental in nature, may have present hazardous properties and are provided strictly “For Research Use Only”. Recipient is prohibited from using, and agrees not to use, any Product or any component thereof in humans, in clinical trials or for diagnostic purposes involving human subjects, for any therapeutic use or investigational use, or for any purpose in contravention of any applicable international, national, regional, state or local law, ordinance, institutional review board approved protocol, or regulation, including all applicable regulatory guidelines and procedures. In the case of Product being liver-derived cells, Recipient agrees to limit use of such Product to determining the factors that influence the function, morphology and viability of liver-derived cells, the in vitro evaluation of new drugs, and biomedical research. Some Products may contain materials of animal or human origin. Products should only be handled and used by qualified personnel familiar with the potential hazards and trained in laboratory procedures. Recipient assumes all risks of use, handling, and/or disposal of all Products. Recipient shall not reverse engineer, modify or otherwise alter any of the Products in any way.
If Recipient requests to reserve a specific Product lot(s), Supplier may agree to reserve the specified lot(s) for up to sixty (60) days. Recipient agrees to make a full or partial purchase of the reserved lot(s) within sixty (60) days, after which the reservation will be cancelled.
Title and Risk
The risk in the Products shall pass to Recipient on completion of delivery. Title to the Products shall not pass to Recipient until Supplier has received payment in full (in cash or cleared funds) for the Products and all services, if any, rendered by or for Supplier in connection therewith. Until title to the Products is passed to Recipient, Recipient shall: (a) hold the Products in a fiduciary capacity as Supplier’s bailee; (b) store the Products separately from all other goods held by Recipient so that the Products remain readily identifiable as Supplier’s property; (c) not remove, deface or obscure any identifying mark or packaging on or relating to the Products; (d) maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; and (e) give Supplier such information relating to the Products as Supplier may require from time to time.
All Products must be stored according to the storage conditions listed on Product labels and/or applicable datasheets pertaining to each Product.
Price and Payment
The price of the Products shall be the price set out in the applicable Contract, and shall be paid to Supplier prior to Supplier’s release of Product for shipment to Recipient unless otherwise expressly provided in writing by such Contract.
Credit terms may be offered in Supplier’s sole discretion. When credit terms are offered, such credit terms are net 30 days of the invoice date, unless otherwise expressly provided in writing in the applicable Contract. Unless otherwise expressly provided in writing in the applicable Contract, (a) Recipient is responsible for all costs incurred, including, but not limited to, Product and shipping costs, fees, and other expenses, and (b) payments to Supplier must be in currency of the United States of America.
If Recipient defaults in the payment of the total invoice amount or otherwise, Supplier may defer delivery, cancel the Contract, or sell any undelivered Products on hand. If credit terms are offered and accepted and Recipient fails to make any payment when due to Supplier under the Contract by the due date for payment, then Supplier reserves the right to charge Recipient interest on the overdue amount at the lesser of 18% per annum or the maximum rate allowed by law. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. Recipient shall pay interest due to Supplier together with the overdue amount, and all payments will be applied first to accrued unpaid interest and then to the other overdue amount. All of Supplier’s collection costs, including reasonable attorneys’ fees, will be paid by Recipient on demand.
Taxes and Other Charges
Unless otherwise expressly provided in writing in the applicable Contract, any and all customs tariffs and duties or excise, sales, use, value-added or other taxes or levies imposed by governmental bodies in connection with the supply or shipment of the Products shall be paid by Recipient.
Shipping and Claims
Unless otherwise expressly provided in writing in the applicable Contract: (i) Supplier shall arrange for the delivery of the Products to the location set out in the Accepted Supply Order; (ii) all orders are shipped via Supplier’s recommended carrier; (iii) freight and handling charges will be added to Recipient’s invoice; and (iv) all shipment costs will be paid by Recipient. Shipping and delivery dates are approximate. The dates quoted for delivery are approximate only; the time of delivery is not of the essence. Supplier will use commercially reasonable efforts to meet stated delivery times but does not, under any circumstance, guarantee delivery by the stated time. Delays in delivery do not allow Recipient to refuse shipment.
Recipient must immediately inspect all shipments and report any damages to Supplier. Recipient shall not be entitled to reject Product if Supplier delivers up to and including 10% or more or less than the quantity of Product ordered, but a pro rata adjustment shall be made to the invoice on receipt of notice from Recipient that the wrong quantity of Product was delivered.
If Supplier fails to deliver the Product, Supplier’s liability shall be limited to Recipient’s costs and expenses incurred in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Products. Supplier shall have no liability for any failure to deliver the Product if such failure is caused by a force majeure event or Recipient’s failure to provide Supplier with adequate instructions.
Supplier is not liable for damages during or caused by shipment. All claims for damage during or caused by shipment must be submitted in writing to the carrier in accordance with the carrier’s requirements.
Supplier warrants to Recipient for a period of one year after delivery of the Product that: (a) such Product will comply with Supplier’s published specifications for such Product, and (b) such Product will be supplied to Recipient free from any lien. This warranty extends only to Recipient and cannot be transferred. EXCEPT FOR THIS WARRANTY, SUPPLIER DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, STATUTORY OR AT COMMON LAW, WITH RESPECT TO ANY OF THE PRODUCTS, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR ANY PARTICULAR PURPOSE. SUPPLIER DOES NOT WARRANT THAT THE PRODUCTS WILL ACCOMPLISH ANY PARTICULAR RESULT.
Subject to the paragraph immediately following below, If (a) Recipient gives written notice to Supplier within 10 days from the time when Recipient discovers or ought to have discovered that some or all of the Products do not comply with Supplier’s Product warranty as set out above; and (b) Supplier is given a reasonable opportunity to examine such Product; and (c) Recipient (if asked to do so by Supplier) returns such Product to Supplier’s place of business at Supplier’s cost, then Supplier shall, at its option, replace the defective Products or refund the price of the defective Products in full. This shall be Recipient’s sole and exclusive remedy for Supplier’s breach of Supplier’s Product warranty. If Supplier issues a credit to Recipient and Recipient accepts such credit as Recipient’s remedy for Supplier’s breach of its Product warranty, such credit must be used within one (1) year of its issuance date.
Notwithstanding anything to the contrary set forth in this Warranty section, Supplier shall not be liable for any Product’s failure to comply with Supplier’s Product warranty as set out above if: (a) Recipient makes any further use of such Product after giving notice in accordance with the paragraph appearing immediately above; (b) the defect arises because Recipient failed to follow any of Supplier’s instructions relating to the Product or (if there are none) good trade practice; (c) the defect arises as a result of Supplier following any specification or instruction provided by or on behalf of Recipient; (d) Recipient alters the Product without Supplier’s written consent; or (e) the defect arises as a result of fair wear and tear, willful damage, negligence, or incorrect or abnormal storage or working conditions.
International Trade Laws
The Products are subject to all applicable import, export control, and economic sanctions laws and regulations, potentially including but not limited to any requirements arising under the following laws and regulations of the United States of America: (a) laws and regulations administered by the United States Customs and Border Protection (“CBP”); (b) the Export Administration Regulations (“EAR”) administered by the U.S. Commerce Department’s Bureau of Industry and Security (“BIS”); (c) the International Traffic in Arms Regulations (“ITAR”) administered by the U.S. State Department’s Directorate of Defense Trade Controls (“DDTC”); and (d) the various economic sanctions laws and regulations administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”).
Products may be supplied only by Supplier or its authorized distributors/resuppliers. A list of authorized distributors/resuppliers can be found on Supplier’s website, www.xenotech.com. Recipient has no right to sell or otherwise transfer Product, its components, or materials made by the employment of the Product or its components to a third party unless Recipient is an authorized distributor/resupplier of Supplier. Unless Recipient is an authorized distributor/resupplier of Supplier, Recipient represents and warrants that it is the ultimate end-user of the Products, and further represents and warrants that it will not knowingly sell, export, re-export, transfer, divert, or otherwise dispose of any of the Products to any other person or entity without the prior written authorization of Supplier.
If Recipient is an authorized distributor/resupplier of Supplier, such Recipient agrees to maintain sufficient records in the English language to enable Supplier to identify all third parties receiving Product from such Recipient that was supplied to such Recipient by Supplier, which records will include the following information per shipment, and such other information as Supplier may reasonably request in writing: shipping date, lot number, Product description, and number of vials. Such Recipient shall provide to Supplier on a quarterly basis a confidential traceability report of Product shipments by such Recipient to third parties occurring during the immediately preceding calendar quarter that contain the shipment information described in this paragraph.
Limitation of Liability
Supplier shall not be liable for any damages or injury to persons or property arising from the purchase or use of any Product. In addition, Supplier is not liable for any Product that has been misused or has become unusable due to improper storage or handling by Recipient. Supplier’s total liability and Recipient’s exclusive remedy for any cause of action associated with any Product, whether based in tort, contract, strict liability of any other legal theory, is expressly limited to replacement of nonconforming Product or payment in an amount not to exceed the purchase price of the specific Product for which damages are claimed. In no event shall Supplier be liable for any other damages including, without limitation, incidental, special, punitive or consequential damages. Any action resulting from any breach of the Contract by Supplier must be commenced within one (1) year after the cause of action has accrued.
Recipient acknowledges that the Products provided to Recipient embody intellectual property deemed to be of significant value to Supplier, and that such intellectual property may be protected by the law of patents, copyrights, trade secrets, and other laws. Recipient acknowledges and agrees that the supply of Products to Recipient shall not be construed as a transfer of any title or the grant of any rights in or to the intellectual property embodied in the Products owned or licensed by Supplier.
Fair Labor and Equal Employment
Products are produced in accordance with the Fair Labor Standards Act of 1938, as amended. Supplier is an equal opportunity employer. It does not discriminate based on race, color, religion, sex, national origin, age, disability, or genetics. In addition to federal law requirements, Supplier complies with non-discrimination in employment regarding sexual orientation, gender identity or expression, disability, or veteran status.
Recipient shall indemnify, defend and hold harmless Supplier, its affiliates, and its and their respective directors, managers, officers, employees, and agents (“Supplier Indemnitees”) from and against all claims and resulting liabilities, losses, damages, costs and expenses of every kind, including reasonable attorneys’ fees (collectively “Claims”) initiated by or on behalf of third parties that are not affiliates of Supplier to the extent arising out of or in connection with (a) Recipient’s use of the Products; or (ii) Recipient’s breach of any of its obligations, warranties or representations under any Contract; or (iii) Recipient’s fraud, negligence or willful misconduct, except to the extent the Claim is caused by Supplier’s breach of the Contract or Supplier’s fraud, negligence or willful misconduct. Recipient shall not settle any Claim against Supplier without Supplier’s prior written consent.
Except for Recipient’s payment obligations hereunder, failure by either party to perform its obligations under any Contract shall not subject such party to any liability if such failure is due to causes beyond such party’s reasonable control including, but not limited to, fire, explosion, flood, drought, hurricane, war, terrorism, riot, sabotage, embargo, a declared national or state (of the affected party) health emergency, compliance with any order or regulation of any government entity acting with color of right, or any other cause beyond the reasonable control of such non-performing party and not caused by the negligence, intentional conduct or misconduct of the non-performing party (such event or cause referred to as “force majeure”). The party affected shall, as promptly as practicable, notify the other party and shall use reasonable efforts to eliminate, cure or overcome the force majeure, keeping the other party informed of its progress, and resume performance of its obligations with all possible speed. If a condition constituting force majeure exists for more than thirty (30) consecutive days, the parties shall meet and discuss in good faith, modifications to or termination of the applicable Contract.
This Agreement shall be governed by and construed under the laws of the State of Kansas without reference to conflicts of law principles. Notwithstanding the foregoing, the United Nations Convention on Contracts for the International Supply of Goods does not apply to any Contract.
Resolution of Disputes
With respect to the supply of Product to a destination located outside the United States of America and to a Recipient not organized under the laws of a particular state of the United States of America, any dispute arising under or in relation to the Contract for the supply of such Product shall be finally settled in accordance with the rules of the American Arbitration Association by one arbitrator designated in accordance with said Rules. The arbitration shall be held in Kansas City, Missouri in the English language. The arbitrator shall set forth the grounds for his or her decision in a written judgment. An arbitration award that is consistent with this Section shall be final and binding upon the parties and judgment upon such award may be entered in any court having jurisdiction. The governing law of the arbitral proceeding will be the law of the State of Kansas without regard to its conflicts of law rules. Notwithstanding anything to the contrary in this Section, the arbitrator shall have no authority to issue injunctive or other equitable relief, which remedies either party may seek from a court of appropriate jurisdiction, or to award punitive damages or any other damages not permitted by the Contract. Notwithstanding the foregoing, each party acknowledges that a breach of the Contract may result in irreparable harm to the other party, the extent of which would be difficult to ascertain, and in any event money damages would be inadequate in the event of such a breach. Accordingly, each party agrees that in the event of a breach of the Contract, the non-breaching party shall be entitled to seek injunctive or other equitable relief from any court of competent jurisdiction.
With respect to the supply of Product to a destination located within the United States of America or to a Recipient organized under the laws of a particular state of the United States of America, any dispute arising under or in relation to the Contract for the supply of such Product shall be finally and exclusively resolved (if first not resolved by the parties) by a court or courts located in the State of Kansas. Each party irrevocably submits to the jurisdiction of the State and Federal courts located in the State of Kansas and agrees that it shall not assert any objection or defense of lack of jurisdiction, improper venue or forum non conveniens in any dispute brought in such courts.
If Supplier commences litigation or arbitration to enforce or construe any provision of a Contract and is the party substantially prevailing in such action, Supplier shall be entitled to recover its reasonable attorneys’ fees and costs in such litigation and any appeal therefrom, or in such arbitration.