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These terms and conditions of sale (the “General Terms of Sale”) shall, by themselves and as part of the Final Terms of Sale, as defined in Section 12 hereof, govern all orders for purchases of, and all purchases of, products (the “Products”) and/or services (the “Services”) from GENTEGRA LLC. (“GENTEGRA”) by the buyer thereof (the “Buyer”). BY ACCEPTING ANY PRODUCT OR SERVICE FROM GENTEGRA, BUYER IS DEEMED TO HAVE AGREED TO ALL OF THESE GENERAL TERMS OF SALE WITHOUT THE NEED FOR ANY EXECUTION OR DELIVERY BY BUYER OR GENTEGRA OF ANY FURTHER INSTRUMENT OR AGREEMENT OR OTHER DOCUMENT.
1. PRICE. The price for the Product and/or Service shall be the price stated in GENTEGRA’s written quotation to Buyer for the Product and/or Service (“GENTEGRA’s Quotation”) or, if GENTEGRA has not issued a quotation, then GENTEGRA’s then-current list price of the Product and/or Service on the date that GENTEGRA receives Buyer’s purchase order. GENTEGRA’s Quotations are valid for a period of 90 days after the date of the particular GENTEGRA Quotation, unless otherwise stated therein. If GENTEGRA’s price is stated by reference to a price list, then such price shall be GENTEGRA’s then-current list price in the jurisdiction in which the relevant Product is to be delivered, or Service is to be performed, in effect on the date that GENTEGRA receives Buyer’s purchase order for such Product and/or Service. Prices stated are exclusive of all taxes, fees, licenses, duties, levies or other governmental assessments (“Taxes”) and, unless otherwise stated in GENTEGRA’s Quotation, exclusive of all shipping and handling charges, freight and insurance. All Taxes related to Products and/or Services shall be paid by Buyer (other that taxes assessed against GENTEGRA’s net income), or in lieu thereof, Buyer shall provide GENTEGRA with a tax exemption certificate acceptable to the relevant taxing authorities. Taxes and other charges payable by Buyer may be billed as separate items on GENTEGRA’s invoice to Buyer.
2. PAYMENT TERMS; COLLECTION COSTS; SECURITY TERMS. Payment terms are net 30 days after the date of GENTEGRA’s invoice for the relevant Product and/or Service. GENTEGRA at its sole discretion shall have the right to require alternative payment terms by Buyer as set forth in Section 3 hereof. Payment for partial shipments shall be based on unit or prorated prices, and payment for partially performed Services shall be based on the time actually spent by GENTEGRA thereon. If payment is not received by the due date thereof, GENTEGRA may assess, and Buyer shall pay a late payment charge at the rate of 1% per month (12% per year) or the maximum rate permitted by law, whichever is less, of the amount due from the due date to the date of payment.
If GENTEGRA retains a collection agency or attorney to collect unpaid amounts, GENTEGRA may invoice Buyer for, and Buyer shall pay, all reasonable costs of collection, including without limitation reasonable attorneys fees. Buyer hereby grants to GENTEGRA and GENTEGRA reserves a purchase money security interest in all tangible Products purchased from GENTEGRA, and in any proceeds thereof, for all amounts owing to GENTEGRA for or related to such Products. Upon request by GENTEGRA, Buyer shall sign any reasonable documents required for GENTEGRA to perfect such security interest and, to the fullest extent permitted by law, Buyer hereby expressly grants GENTEGRA authority and a limited power of attorney to file financing statements and amendments thereto for and on behalf of Buyer for such Products and any proceeds thereof. Payment in full of all amounts owed for and related to such Products shall release such security interest in the Products and proceeds for which such full payment has been made.
3. CREDIT TERMS. GENTEGRA may, at any time and in its sole discretion, limit or cancel the credit of Buyer from GENTEGRA, as to time and amount, suspend shipments, demand payment in cash before delivery of Products or performance of Services, or demand other assurances of Buyer’s performance. If Buyer fails to agree and comply with the different terms of payment demanded, or fails to give adequate assurances of performance, GENTEGRA may, without prejudice to any other right or remedy GENTEGRA may have: (a) by written notice to Buyer, treat such failure or refusal as a repudiation by Buyer of that portion of Buyer’s order not then fully performed, whereupon GENTEGRA may cancel all further deliveries, and any amounts unpaid for non-cancelled Products or Services actually performed shall immediately become due and payable; or (b) make shipments under reservation of the purchase money security interest referred to in Section 2 hereof and demand payment from Buyer against tender of title documents.
4. DELIVERY, TITLE AND RISK OF LOSS. The receipt by GENTEGRA of any purchase order or other order document from Buyer shall in each case be subject to the provisions of Section 12 hereof, captioned “SOLE TERMS; CONFLICT OF TERMS.” GENTEGRA or its designee shall use commercially reasonable efforts to ship Products and to perform Services within a reasonable time after so ordered, or, if in an order for Services, a commencement or installation date is specified in GENTEGRA’s Quotation or otherwise agreed upon in writing by an authorized representative of GENTEGRA, on or before such date. GENTEGRA may make delivery in installments, and each such installment shall be deemed to be a separate sale of Product by GENTEGRA. GENTEGRA may render a separate invoice for each such installment, which invoice shall be paid by Buyer without regard to prior or subsequent installments. Unless indicated otherwise in GENTEGRA’s Quotation, All deliveries of the Products shall be FCA (Incoterms 2010) GENTEGRA’s manufacturing or warehouse facility. GENTEGRA shall deliver each shipment to the carrier specified by Buyer in the purchase order. If GENTEGRA is installing Products as a Service, it is Buyer’s responsibility, at Buyer’s cost, to have the installation site prepared and available for installation free of hazardous or unsafe conditions and, unless GENTEGRA otherwise agrees in writing, to move the Products, uncrated, from the Buyer’s delivery dock or receiving location to the table top or other place of installation. Buyer shall not assign GENTEGRA personnel to work in biosafety level 3 or level 4 laboratories without prior written notice to GENTEGRA and without GENTEGRA’s prior written consent.
5. CANCELLATION AND DEFERRAL. BUYER MAY NOT CANCEL ANY PURCHASE ORDER FOR PRODUCTS WITHOUT THE EXPRESS PRIOR WRITTEN CONSENT OF GENTEGRA, provided that, unless otherwise stated in GENTEGRA’s Quotation, Buyer may defer the shipment date one time for up to 30 days for any Product, by giving written notice to GENTEGRA at least 10 days before the scheduled shipment date for such Products.
6. REJECTION AND RETURN OF GOODS. Any claims for damaged, missing or defective Products, or incomplete or erroneous Services, must be reported in writing by Buyer within 15 days after the date of Buyer’s receipt of the Products or GENTEGRA’s performance of the Service. In addition, Buyer must promptly return, at Buyer’s own expense, a rejected Product to GENTEGRA, C.O.D., unused and in a condition as delivered to Buyer and in the Product’s original containers and packing material, accompanied by a valid return authorization number (“RAN”) obtained from GENTEGRA. GENTEGRA may refuse any Products not timely rejected or sought to be returned without a valid RAN. In addition, GENTEGRA may require that Buyer sign and deliver a properly completed certificate of decontamination prior to returning any Products. For any valid claim timely made, GENTEGRA, at its option, may repair the Product or replace the Product with an identical or substantially similar Product, or in the case of Services, re-perform such Services. THESE ARE BUYER’S SOLE AND EXCLUSIVE REMEDIES, AND GENTEGRA’S SOLE LIABILITY, FOR DAMAGED OR MISSING PRODUCT, AND, EXCEPT FOR EXPRESS WRITTEN WARRANTY RIGHTS, FOR ANY DEFECTIVE PRODUCT, AND FOR MISSING OR ERRONEOUSLY PERFORMED SERVICES.
7. LIMITED WARRANTY. GENTEGRA makes only those warranties with respect to Products expressly identified as “warranties” and set forth in GENTEGRA’s current operating manual or catalog, or in a specific written warranty included with and covering Products, if any. Warranties are made only to the Buyer purchasing the Products directly from GENTEGRA, are not transferable and do not extend to the benefit of any other person or entity, unless otherwise expressly stated in writing by GENTEGRA. ANY PRODUCT NOT COVERED BY AN EXPRESS WRITTEN WARRANTY IS SOLD AND PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, STATUTORY, EXPRESS OR IMPLIED. Any description of Products recited in GENTEGRA’s Quotation is for the sole purpose of identifying Products, and any such description is not part of any contract between GENTEGRA and Buyer, is for illustrative purposes only, and does not constitute a warranty that Products shall conform to the affirmation or promise. Unless otherwise specified in writing in documentation shipped with Products or otherwise agreed by GENTEGRA in writing. GENTEGRA does not provide service or support for custom products or other products made to Buyer’s specifications. With respect to Services, GENTEGRA warrants that such services will be performed in a workmanlike manner in compliance with all applicable laws. SUBJECT TO THE STATUTORY LIMITATIONS IMPOSED BY APPLICABLE LAW, THE WARRANTIES DESCRIBED IN THIS SECTION 7 ARE GENTEGRA’S SOLE AND EXCLUSIVE WARRANTIES WITH RESPECT TO PRODUCT AND SERVICES, AND ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, STATUTORY, EXPRESS OR IMPLIED, ALL OF WHICH OTHER WARRANTIES AND CONDITIONS ARE EXPRESSLY DISCLAIMED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR REGARDING RESULTS OBTAINED THROUGH THE USE OF ANY PRODUCT OR SERVICE (INCLUDING WITHOUT LIMITATION, CLAIM OF INACCURATE, INVALID OR INCOMPLETE RESULTS), WHETHER ARISING BY STATUTE OR OTHERWISE AT LAW OR IN EQUITY, OR FROM A COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE.
8. INDEMNIFICATION.
8.1 INDEMNIFICATION BY GENTEGRA. Subject to the restrictions set forth in this Section 8 and provided Buyer complies with its obligations in Sections 8.1.1 through 8.1.3 hereof, GENTEGRA shall defend, indemnify and hold Buyer harmless against all liabilities, damages, costs, expenses and claims arising from or based upon any legal action or proceeding brought by a third party against Buyer to the extent that such action is based on a claim that the manufacture and/or sale of a Product to Buyer by GENTEGRA infringes any United States patent, copyright, trademark or other intellectual property right of such third party, if GENTEGRA had actual knowledge of such intellectual property right and actual knowledge of such infringement on the date that of delivery of the relevant Product(s) to Buyer. Notwithstanding the foregoing, GENTEGRA shall have no liability or obligation under this Section 8 with respect to any claim of infringement based upon: (a) modifications to any Products made by Buyer or a third party; or (b) manufacture, assembly, labeling or branding of Products by GENTEGRA pursuant to written specifications or designs or requests for specific labeling or branding furnished by Buyer (including any such specifications or designs or requests delivered to GENTEGRA by email or facsimile). Notwithstanding anything herein to the contrary, GENTEGRA shall have no indemnification obligations with respect to products or components originating from a third party and provided under these General Terms of Sale. Buyer’s sole right to indemnification with respect to such third party products shall be pursuant to the original manufacturer’s or licensor’s indemnification obligations, if any, to the extent provided by the original manufacturer or licensor. GENTEGRA’s obligations under this Section 8.1 are entirely contingent upon Buyer’s compliance with all of the following:
8.1.1 BUYER’S OBLIGATIONS. Buyer shall notify GENTEGRA in writing, in commercially reasonable detail, of any claim for which Buyer may seek defense and indemnity from GENTEGRA hereunder, within 45 days after becoming aware of such claim, make no admission of liability with respect to the claim, and cooperate with and provide reasonable assistance to GENTEGRA, at GENTEGRA’s expense with respect to reasonable out of pocket expenses paid by Buyer to third parties, in the defense or settlement of such claim. GENTEGRA shall have sole authority to defend and/or settle any claim under Section 8.1 hereof.
8.1.2 REMEDY FOR INFRINGEMENT, RIGHTS OF GENTEGRA, EXCEPTIONS. If any Product or portion thereof is subject to litigation or other legal or equitable proceeding claiming that such Product or such portion infringes a third party’s intellectual property right, or in GENTEGRA’s opinion is likely to become subject of such a claim, GENTEGRA shall, at its option, have the right to either: (a) procure for Buyer the right to continue using the Products; or (b) modify the Product or portion thereof so that it becomes non-infringing; or © require Buyer to return the Product or portion thereof and upon return, refund to Buyer the price actually paid by Buyer for the Product or portion thereof (with the refund as to any portion to be allocated reasonably by GENTEGRA in good faith), less a reasonable amount for use, damage and obsolescence; or (d) substitute for the alleged infringing Product or portion thereof other suitable, non-infringing Product or portions thereof with comparable functionality.
8.1.3 ENTIRE INDEMNIFICATION LIABILITY OF GENTEGRA. THE FOREGOING STATES THE ENTIRE LIABILITY OF GENTEGRA AS TO LIABILITY TO BUYER, AND THE EXCLUSIVE REMEDY OF BUYER, FOR ANY INFRINGEMENT OR CLAIMED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET OR ANY OTHER INTELLECTUAL PROPERTY RIGHT BY OR IN CONNECTION WITH ANY PRODUCT.
8.2 INDEMNIFICATION BY BUYER FOR BUYER’S MODIFICATIONS, SPECIFICATIONS OR USE. If Buyer (a) modifies any Product or furnishes GENTEGRA with specifications or designs or requests for specific Product labeling or branding, or (b) Buyer uses the Products in any manner inconsistent with the Specifications or these General Terms of Sale, then Buyer shall defend, indemnify and hold GENTEGRA harmless against all liabilities, damages, costs, expenses and claims arising from or based upon such modifications or GENTEGRA’s manufacture and sale of Products or other performance in compliance with such specifications, or such use by the Buyer.
8.3 INDEMNIFIED PARTIES. For purposes solely of this Section 8, the terms “GENTEGRA” and “Buyer” shall mean and include the respective members of the Board of Directors or similar governing body, and the officers, stockholders or other equity holders, and employees and agents of, the respective referenced party. Linked Websites
9. LIMITATIONS ON USE OF PRODUCT; COMPLIANCE WITH LAWS; VALIDATION. Without limiting the generality of Section 7 hereof, captioned “LIMITED WARRANTY,” unless otherwise expressly stated in writing by GENTEGRA, no claim or representation is made or intended (a) as to any clinical use of any Products (for purposes of this Section 9 including any Software (as defined below)) (whether diagnostic, prognostic, therapeutic, blood banking or any other clinical use), (b) that any Products has been cleared, approved, registered or otherwise qualified (collectively, an “Approval”) with any regulatory agency for use in any clinical procedure or for other use requiring compliance with any federal, state, local, national or trans-national law, rule or regulation, or order of any governmental agency or regulatory body regulating diagnostic, therapeutic, blood or other clinical products, medical devices or similar products (collectively, “Regulatory Laws”), (c) that any Product satisfies or shall satisfy the requirements of any governmental body or other organization including, but not limited to the International Organization for Standardization, or (d) that any Product or its performance is suitable or has been validated for any specific use or application. Products shall not be used for any purpose that would require Approval unless and until proper Approval is obtained, or in the case of use in diagnostic laboratory systems and then only to the extent permitted by law, and only if such laboratory has validated its complete system as required by the Clinical Laboratory Improvement Act of 1988, as amended, in the United States or has validated itself under equivalent regulations in other countries. Buyer shall provide any reasonable assistance required by GENTEGRA if GENTEGRA elects to obtain any regulatory markings or approvals, and to ensure compliance with import, use and sale of the Product into the Territory. If Buyer elects to use Products for a purpose that would subject Buyer, its customers or any Products to Regulatory Laws or other applicable law, Buyer shall be solely responsible for obtaining any required Approval or other approvals and otherwise ensuring that its use of any Products complies with such laws, and shall indemnify, defend and hold GENTEGRA harmless from any third party claim, demand, liability, loss or damage, including without limitation reasonable attorney’s fees, resulting from such use. Unless otherwise expressly stated in writing by GENTEGRA, Products have not been tested by or for GENTEGRA for any particular use or purpose, or for safety or efficacy. It is Buyer’s responsibility, and not GENTEGRA’s, to validate the performance of Products for any specific use or application and to ensure that Products meet applicable regulatory, certification, validation or other requirements. Products shall in all cases be used in strict accordance with applicable instructions, warnings and other information in user manuals and other Products documentation. Subject to the terms of this Agreement, Buyer shall comply with all applicable laws and regulations, including but not limited to, export laws and restrictions and regulations of the United States Department of Commerce or other United States or foreign agency or authority including but not limited to the United Kingdom, and shall not export, or participate in any transaction which may involve the export or re-export of any Products in violation of any such restrictions, laws or regulations. Buyer shall further comply with all applicable local, national and supranational laws applicable to Buyer’s use of the Products in its ordinary course of business, including those that may prohibit gratuities, inducements, or certain other payments. Buyer acknowledges that GENTEGRA may be subject to certain United States laws, including the Foreign Corrupt Practices Act of 1977 and laws within the United Kingdom including but not limited to the Bribery Act of 2010, and any amendments to the foregoing, which may apply to activities carried out by Buyer outside the United States or United Kingdom. Buyer agrees neither to take nor omit to take any action if such act or omission might cause GENTEGRA or Buyer to be in violation of any such laws. Upon written notice from GENTEGRA, Buyer shall provide such information as GENTEGRA may reasonably consider necessary to verify compliance by Buyer with the provisions.
10. FORCE MAJEURE. GENTEGRA shall not be liable for any delay or failure of performance, including without limitation failure to deliver, where such delay or failure arises or results from any cause beyond GENTEGRA’s reasonable control, including, but not limited to, flood, fire explosion, natural catastrophe, military operations blockade, sabotage, revolution, riot, civil commotion, war or civil war, acts of terrorism, plant breakdown, computer or other equipment failure, unusually severe weather earthquake or other act of God, power loss or reduction, strike, lock-out, boycott or other labor disputes of any kind (whether relating to its own employees or others), embargo, governmental regulations or any inability or delay in obtaining materials. In the event of any such delay or failure of performance, GENTEGRA shall have such additional time within which to perform its obligations hereunder as may be reasonably necessary under the circumstances; and GENTEGRA shall also have the right to the extent necessary in GENTEGRA’s reasonable judgment, to apportion Products then available for delivery fairly among its various customers in such manner as GENTEGRA may consider equitable.
11. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT SHALL GENTEGRA BE LIABLE, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, WARRANTY, OR UNDER ANY STATUTE OR ON ANY OTHER BASIS FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, MULTIPLE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM OR RELATED TO LOSS OF USE, LOSS OF DATA, DOWNTIME, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR LOSS OF REVENUE, PROFITS, GOODWILL, OR BUSINESS OR OTHER FINANCIAL LOSS, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT GENTEGRA IS ADVISED OF THE POSSIBLITY OF SUCH DAMAGES, SUSTAINED BY BUYER OR ANY OTHER PERSON OR ENTITY ARISING OUT OF OR CAUSED BY ANY PRODUCT OR SERVICE, OR BY GENTEGRA’S PERFORMANCE OR FAILURE TO PERFORM ITS OBLIGATIONS RELATING TO THE PURCHASE OF PRODUCTS OR PROVISION OF SERVICES, OR BY GENTEGRA’S BREACH OF THESE GENERAL TERMS OF SALE, OR RELATED TO THE POSSESSION OR USE OF ANY PRODUCT. GENTEGRA’S LIABILITY FOR DIRECT DAMAGES ARISING OUT OF THESE GENERAL TERMS OF SALE OR ANY PRODUCT OR SERVICE PROVIDED HEREUNDER SHALL BE LIMITED TO THE AMOUNTS THAT GENTEGRA RECEIVES FROM BUYER FOR THE APPLICABLE PRODUCT OR SERVICE.
12. SOLE TERMS; CONFLICT OF TERMS. These General Terms of Sale, together with GENTEGRA’s Quotation, any applicable label license or patent statement, or other written conditions of use provided by GENTEGRA for the relevant Products(s) or Services(s) (collectively, the “GENTEGRA Final Terms of Sale”), (a) shall constitute the complete, exclusive and entire agreement between GENTEGRA and Buyer with respect to purchase(s) of Products and Services (unless other terms and conditions are expressly designated to be applicable by GENTEGRA in writing by a duly authorized GENTEGRA representative), and GENTEGRA’s offer to sell Products or Services is expressly limited to such terms, and (b) shall control over and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, between Buyer and GENTEGRA with respect to such purchase(s), and (c) shall control over and supersede and replace, to the extent not accepted in writing by GENTEGRA as aforementioned, any additional or different terms and conditions contained in any statement in any purchase order by Buyer, which additional or different terms and conditions are hereby rejected and shall be void unless specifically so accepted in writing by GENTEGRA. To the extent Buyer’s order documents and any terms and conditions contained therein materially alter the GENTEGRA Final Terms of Sale, the GENTEGRA Final Terms of Sale shall be deemed a counter-offer to any offer made by Buyer through Buyer’s order documents. GENTEGRA reserves the right to withhold any shipment of Product until such counter-offer has been accepted by Buyer, provided, however, that Buyer’s acceptance of a shipment of Products shall be deemed final acceptance of and agreement to the terms of such counter-offer. Except as otherwise provided in these General Terms of Sale, in the event of an inconsistency between these General Terms of Sale and the terms appearing on GENTEGRA’s Quotation or other agreement signed by an authorized representative of GENTEGRA, the terms appearing on GENTEGRA’s Quotation or such other agreement shall supersede and take precedence over the inconsistent provision(s) of these General Terms of Sale, and all other provisions of these General Terms of Sale shall remain in full force and effect.
13. NO IMPLIED RIGHTS. Except as expressly set forth herein, nothing in these General Terms of Sale shall be deemed or construed (a) as a license or grant by GENTEGRA of any intellectual property rights, whether express, implied, by estoppel or otherwise; (b) to limit GENTEGRA’s rights to enforce its patent or other intellectual property rights, including, without limitation, as to use of any Products beyond uses granted under any patent or other intellectual property label license or statement applicable to the Products; © as granting Buyer any right to be supplied with any Products or component thereof, or Services, beyond those ordered by Buyer and supplied by GENTEGRA in accordance with the GENTEGRA Final Terms of Sale; or (d) as a license or grant of any right to Buyer to have manufactured any Products.
14. SOFTWARE LICENSE. If a Product purchased by Buyer incorporates GENTEGRA’s software, the following applies: GENTEGRA hereby grants to Buyer of such Product a non-exclusive license to use such software, along with all data and documentation (collectively, the “Software”) solely in connection with the operation of the Product in accordance with the Specifications and these General Terms of Sale. The Software may be installed only on a single computer. As used in this Section 14, “Software” refers to software available from GENTEGRA that is deployed on the Product delivered hereunder, or on CD-ROM, and that controls such Product. “Registration Number” refers to a personalized alphanumeric key which is entered into the Software. The terms of this license will govern any Software upgrades provided by GENTEGRA that replace and/or supplement the original Software, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern. Only one copy of the Software may be made, except that one additional copy may be made for backup purposes only. Buyer may also copy the Software onto one additional computer provided that the Software is used only on one computer at a time and always by the same person and that no other person ever uses the Software. Otherwise, a separate license is required for each single computer on which the Software will be used. Versions of the Software intended for portable media devices may be installed on a single device only and used with only one computer at a time.
GENTEGRA retains title and ownership of the Software recorded on the original media and all subsequent copies of the Software, regardless of the form or media in which or on which the original or other copies may exist. This license is not a sale of the Software or any copy. The license may be permanently transferred to another licensee if Buyer retains no copies of the Software and if the recipient agrees to all terms. However the license may not be rented or leased or otherwise transferred on a temporary basis. Buyer agrees not to disclose the Software or any Registration Numbers provided for the Software to any third party and to take all reasonable precautions to preclude access of unauthorized persons to the Software and Registration Numbers. Buyer agrees not to reverse engineer, de-compile, disassemble, or modify the Software. Buyer may not use or otherwise export or reexport the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, Buyer represents and warrants that it is not located in any such country or on any such list. Buyer also agrees that it will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons. This license shall terminate immediately if Buyer fails to comply with any of the terms of this agreement. If this license was purchased, it shall terminate immediately if GENTEGRA is not fully compensated for the agreed purchase price in a timely manner. Otherwise, this license shall remain in force until terminated by Buyer upon one month’s prior written notice.
SOFTWARE DISCLAIMER OF WARRANTY: GENTEGRA warrants to Buyer that any media on which the Software is distributed are free from defects under normal use and service for a period of ninety (90) days from the date of delivery. GENTEGRA’s entire liability and Buyer’s exclusive remedy as to the media shall be, at GENTEGRA’s option, either (a) return of any purchase price or (b) replacement of the media that does not meet this Limited Warranty. EXCEPT AS SET FORTH IN THE IMMEDIATELY PRECEDING PARAGRAPH, GENTEGRA MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THIS SOFTWARE INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. GENTEGRA DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF USE, OF THE SOFTWARE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. GENTEGRA SHALL NOT BE LIABLE FOR ERRORS OR OMISSIONS CONTAINED IN THIS SOFTWARE, ANY INTERRUPTIONS OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS AND/OR FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH FURNISHING, PERFORMANCE OR USE OF THE SOFTWARE EVEN IF GENTEGRA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SOFTWARE IS LICENSED AS IS. THE LICENSEE ASSUMES THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE.
15. CHOICE OF LAW. Any contract between GENTEGRA and Buyer relating to Products and Services, including as incorporated herein by reference and as specified at the beginning of these General Terms of Sale, and any disputes relating thereto, shall be governed by and construed in accordance with the laws of the State of California, U.S.A., excluding its choice of law provisions and excluding the applicability of the United Nations Convention on Contracts for the International Sale of Goods.
16. BINDING ARBITRATION. If any dispute arises between Buyer and GENTEGRA relating to these terms and conditions, a party’s performance hereunder or the transactions contemplated hereby (collectively, a “Dispute”), Buyer and GENTEGRA shall each make good faith efforts to negotiate an amicable settlement of such Dispute. The parties agree that, except as otherwise provided below, all Disputes shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the International Chamber of Commerce (“ICC”) in the state of California, with judgment upon the award rendered by the arbitrator to be entered in any court of competent jurisdiction. Notwithstanding the foregoing or the then-current specified Commercial Arbitration Rules, the following shall apply with respect to the arbitration proceeding:(i) the existence, subject, evidence, proceedings, and ruling resulting from the arbitration proceedings shall be deemed confidential information, and shall not be disclosed by either party, their representatives, or the arbitrator (except: (a) to the professional advisers of GENTEGRA and Buyer; (b) in connection with a public offering of securities by GENTEGRA or Buyer; (c) as ordered by any court of competent jurisdiction; or (d) as required to comply with any applicable governmental statute or regulation) and (ii) the arbitrator shall be required to prepare written findings of fact. Notwithstanding the foregoing, either party may apply to a court of competent jurisdiction for a temporary restraining order, preliminary injunction or other equitable relief, as necessary, without breach of this arbitration agreement and without abridgement of the powers of the arbitrator.
17. EXPORT CONTROLS. Buyer shall not export or transfer Products for re-export in violation of any United States laws or of the laws of any other jurisdiction, or to any denied or prohibited person, entity, or embargoed country in violation of any such laws.
18. MISCELLANEOUS. No amendment or modification of GENTEGRA’s Quotation or these General Terms of Sale shall be binding unless in writing and signed by a duly authorized representative of each of GENTEGRA and Buyer. GENTEGRA’s failure to exercise any rights hereunder shall not constitute or be deemed a wavier or forfeiture of such rights hereunder. Headings are included herein for convenience of reference only and shall not constitute a part of these General Terms of Sale for any other purpose. If any provision of these General Terms of Sale is held to be invalid or unenforceable for any reason, such provision shall, to the extent of such invalidity or enforceability, be severed from these General Terms of Sale without in any way affecting the remainder of such provision or any other provision hereof, all of which shall continue in full force and effect.