Terms and Conditions of Sale
Last Updated December 1, 2021
1. Applicability and Acceptance of Terms. These Terms and Conditions of Sale (these "Sale Terms") apply to all purchases made by a person or entity (collectively, "Purchaser" or "you") purchasing products ("Products") from Bethyl Laboratories, Inc. ("Bethyl") whether via the Internet at https://www.fortislife.com (or any page thereunder) or any other Internet site at which Bethyl offers and sells its products that is expressly made subject to these Sale Terms (each a "Site"). If you are accessing a Site to purchase Products on behalf of your employer or some other entity, then (a) the terms "Purchaser" or "you" when used elsewhere in these Sale Terms shall also refer to your employer or such other entity, (b) by creating an account at the Site, you further represents and warrant that you possess the legal right and ability to agree to these Sale Terms on your behalf and on behalf of your employer or such entity, and (c) you and your employer or such other entity are bound by these Sale Terms.
2. Supplementary Terms. Additional terms and conditions may apply to the sale of certain Products, including without limitation software ("Supplementary Terms"). Any Supplementary Terms may be made available in a quotation, order acknowledgment, Product insert, or written agreement that accompanies or is associated with the Products. Applicable Supplementary Terms are also available from Bethyl Customer Service. If you are purchasing Products at a Site, the Site Use Terms apply and shall be deemed Supplementary Terms. These Sale Terms and the Supplementary Terms (if any) are collectively and individually referred to herein as the Agreement (the "Agreement").
In the event of a conflict between the Sale Terms and the Supplementary Terms, the Supplementary Terms shall control, except that the Sale Terms shall govern in the event of any conflict with any Site Use Terms applicable to a Site. All sales are expressly conditioned on Purchaser's assent to the Agreement. By opening an account at a Site, you agree to be bound by the Sale Terms. Bethyl will not be bound by, and specifically objects to and rejects, any term, condition, or other provision which is different from or in addition to the provisions of the Agreement (whether or not it would materially alter this Agreement) which is proffered by Purchaser whether in an order, receipt, acceptance, confirmation, correspondence, or otherwise, unless Bethyl has specifically agreed to such provision in a written instrument signed by an authorized representative of Bethyl. Bethyl may periodically add to, modify, revise or otherwise update the Sale Terms at its sole discretion. It is your responsibility to review the Sale Terms for any additions, modifications, revisions or updates each time that you make a purchase. Your use of any Site and/or purchase of Products following any additions, modifications, revisions or updates to the Sale Terms constitutes your acceptance of any such new, modified, revised or updated Sale Terms.
3. Orders. By adding desired Products to your cart and submitting all required information during the checkout process you have placed an order with Bethyl (an "Order") and are bound by such Order, subject to the availability of the Products ordered. Bethyl will confirm receipt of your online Order by sending you an email. All Orders are subject to acceptance by Bethyl either in writing or by shipping Products. Bethyl may accept or reject any Order in whole or in part.
4. Transfer Prohibited. In the absence of an express written agreement to the contrary, (a) the purchase of a Product only conveys the nontransferable right to use the purchased Product in compliance with these Sale Terms and any applicable Supplementary Terms; and (b) all Products are sold by Bethyl for the exclusive use of the Purchaser, and Purchaser has no right to resell, transfer, or convey to any other party, in whole or in part, any Products purchased hereunder. No other right or license is granted to Purchaser, explicitly, by implication, by estoppel or otherwise. Without limiting the foregoing, Purchaser may transfer information acquired or materials made through the use of a Product to a scientific collaborator, provided that such transfer is for non-commercial purposes only, and that such collaborator agrees in writing (i) not to transfer such information or materials to any third party, and (ii) to use such transferred information or materials solely for research and for non-commercial purposes only.
5. Product Use and Restrictions.
- Research Use Only. Purchaser acknowledges and agrees all Products sold by Bethyl are for in vitro activities, animal studies in laboratory settings and INTERNAL RESEARCH ONLY and are not intended for use in the diagnosis of disease or other conditions, including a determination of the state of health, in order to cure, mitigate, treat or prevent disease.
- No Regulatory Review. No Product has been:
- submitted for regulatory review;
- validated for diagnostic, prophylactic, therapeutic, or clinical use, safety and effectiveness; or
- otherwise validated for any other specific use or application unless expressly stated in the applicable Product technical data sheet ("Technical Data Sheet ").
- Purchaser Responsibilities. Purchaser is solely responsible for proper selection, application, processing and use of any Product, and for adopting safety precautions as may be necessary. Purchaser is solely responsible for complying with, and shall handle and use all Products (and the results obtained from using all Products) in conformity with (1) good laboratory practice; (2) all applicable laws, regulations, and governmental rules and policies; and (3) any necessary approvals, permissions, authorizations and/or licenses as may be required for Purchaser’s research and other intended uses, including any rights to use intellectual property rights of a third party.
- No Reverse Engineering. As a material condition to Bethyl providing Products to Purchaser, Purchaser agrees that it shall not, directly or indirectly, attempt to reverse engineer, disassemble, or otherwise perform any compositional, structural, functional or other analyses directed to learning the methodology, components, formulae, processes, make-up, or production of any Product or any portion thereof.
- Compliance with Law. Purchaser shall not use or permit a Product to be used in any manner that does not comply with all applicable laws. Any warranty granted by Bethyl with respect to Product shall be deemed void if any Product covered by such warranty is used for any purpose not permitted hereunder or otherwise in violation of any use restrictions referred to in the Agreement.
- Requirement of Approval for other Uses. Any use of Product for diagnostic, prophylactic or therapeutic purposes, or any purchase of a Product for resale (alone or as a component) or other commercial purpose, requires a separate license or agreement from Bethyl.
6. Shipment, Risk of Loss and Passage of Title. Bethyl will pack the Products for shipment in a commercially reasonable manner and in accordance with any applicable Technical Data Sheet(s). Bethyl may select the method of shipment and the carrier but will not be deemed thereby to assume any liability in connection with the shipment, nor will the carrier be construed to be an agent of Bethyl. Product prices do not include -- and you are responsible for paying -- all shipping costs. Delivery of all Products is EXW (Incoterms 2020) Bethyl’s facility with risk of loss and title passing to Purchaser upon shipment. Bethyl will use commercially reasonable efforts to complete shipments within the time (if any) indicated in the Order, but Purchaser hereby acknowledges that all delivery dates and shipment schedules are approximate and agrees that Bethyl shall not be liable for any damages or penalties for delay in delivery or for failure to give notice of delay for any reason.
7. Price. Purchaser shall pay the prices specified on the Site or, if no price is specified, the price set forth in Bethyl’s standard price list in effect on the date that Bethyl accepts the Order. All prices are subject to change without notice. Bethyl cannot confirm the price of any Product until Purchaser has completed their Order and Bethyl reserves the right to revise prices at any time prior to Purchaser completing an Order. Despite Bethyl’s efforts, Products listed on a Site or in a catalog may be mispriced and Bethyl reserves the right to change or update information to correct errors, inaccuracies, or omissions at any time without prior notice. If a Product’s correct price is higher than the stated price, Bethyl will, in its sole discretion, either contact Purchaser for instructions before shipping or cancel your Order and notify Purchaser of such cancellation.
8. Tax. Product prices do not include -- and you are responsible for paying -- all applicable sales, use, excise, Value-Added Tax and other taxes related to your purchase. Applicable taxes will be added to the Order or invoice when Bethyl is responsible for collecting such tax unless Purchaser has valid evidence of a tax exemption on file with Bethyl. Purchaser agrees to indemnify Bethyl for any liability, including costs and attorneys’ fees if such tax is not properly paid by Purchaser. Purchaser is responsible for confirming that its account is set up properly and that any applicable tax exemption documents are provided. Purchaser should contact Bethyl to correct or update its account information and should note any updates to this effect on applicable Orders.
9. Payment. For purchases made on a Site, payment information and credit card authorization must be included with the Order. Otherwise, standard payment terms are net 30 days from the date of invoice and in the currency specified on the invoice. Purchaser will only be charged for Products shipped. Products placed on back order will be charged when shipped. Payments are not subject to any claim or counterclaim or set-off by Purchaser. In the event of late payment, Bethyl may, without affecting any other rights or remedies, suspend production, shipment and/or deliveries, cancel Orders, reject future orders, and/or charge a late payment fee, from the due date until paid, at the rate of one and a half percent (1.5%) per month (18% per year) or such lesser amount as is the maximum rate of interest allowed by law. Purchaser shall pay any and all reasonable costs, including attorneys’ fees, incurred by Bethyl in collecting any delinquent balance.
10. Inspection and Returns.
- Return Authorizations. Within 7 business days from the day Purchaser received the applicable Products, Purchaser may request from Bethyl Customer Service a return authorization (a "Return Authorization") for the return of Products that were damaged or defective when delivered. If Purchaser does not timely notify us of a deficiency as required herein, the subject Product shall be deemed accepted. Bethyl will not accept returns, and no credit/refund will be issued, without a Return Authorization. Products must be returned within thirty (30) calendar days of receiving a Return Authorization and must be in their original containers with the original labels. Return shipping must be pre-paid and all shipping costs incurred with a return are the responsibility of Purchaser. Upon receipt of Products that have a Return Authorization, a credit/refund for the original purchase price less a fifteen percent (15%) returned products charge (the "Returned Products Charge"). If the Products are returned due to a failure to conform to the Limited Warranty set forth in Section 12.a (Warranty), as determined by Bethyl in its reasonable discretion, Bethyl will credit/refund the return shipping costs for the returned Product and waive the Returned Products Charge.
- Reporting of Issues. Non-delivery must be reported to Bethyl within ten (10) calendar days of the date of the invoice. Purchaser must report receipt of incorrect Products to Bethyl within three (3) business days from the day Purchaser received the Products. If an error by Bethyl results in non-delivery or shipment of incorrect Products, Bethyl will, at its sole option, either ship, at no charge, the correct Products per Purchaser’s Order or credit Purchaser’s account for the original purchase price of the Products that were not shipped or were shipped in error, plus shipping charges.
- Shipment Errors. If an error by Purchaser results in the shipment of incorrect Products and is reported to Bethyl within ten (10) business days from the day Purchaser received the Products, Purchaser may request a Return Authorization. Where Bethyl determines that the Product cannot be shipped back safely, Bethyl may, at its option, refuse to issue a Return Authorization or to issue any credit. Products must be returned within thirty (30) calendar days of receiving a Return Authorization and must be in their original containers with the original labels and unaltered in form and content. Upon Bethyl’s receipt of such Products, Purchaser will receive a credit for the original purchase price, less applicable Returned Products Charges.
- Custom Products, Damage in Transit and Distributors. Notwithstanding the foregoing, (i) Orders for custom Product are non-cancelable and non-returnable; (ii) claims for loss or damage of Products which Bethyl determines occurred in transit must be made to the carrier and not to Bethyl; and (iii) discrepancies with items ordered through a Bethyl distributor must be handled with the distributor.
11. Export Controls and Related Regulations. Products and information that Purchaser receives from Bethyl are subject to United States export control laws and regulations. Purchaser may not, directly or indirectly, sell, export, re-export, import, transfer, divert, or otherwise dispose of any Product or information (including products derived from or based on Products or information received from Bethyl) to any destination, entity, or person prohibited by United States laws or regulations (or the laws or regulations of any jurisdiction). Purchaser represents and warrants that it is not designated on, or associated with any party designated on, any of the United States government restricted parties lists, including without limitation, the United States Commerce Department Bureau of Industry and Security ("BIS") Denied Persons List; Entity List or Unverified List; the United States Treasury Department Office of Foreign Assets Control ("OFAC") Specially Designated Nationals and Blocked Persons List; or the United States State Department Directorate of Defense Trade Controls ("DDTC") Debarred Parties List. Purchaser shall comply with all applicable United States economic sanctions and export control laws and regulations, including without limitation, the regulations administered by OFAC, the Export Administration Regulations administered by BIS, and the International Traffic in Arms Regulations administered by DDTC. Bethyl may terminate this Agreement and discontinue any ongoing supply to or business with Purchaser immediately, without notice and without liability, upon Bethyl becoming aware that Purchaser, or any party associated with Purchaser, is named on any restricted party list.
12. Limited Warranty and Disclaimer.
- Warranty. Bethyl warrants to the original Purchaser only, that at the time of shipment and for thirty (30) days thereafter, each Product will meet the specifications covering the Product stated on the Site (if any) or Technical Data Sheet included with the Product (if any) when used appropriately under normal laboratory conditions (the "Limited Warranty"). The Limited Warranty extends only to the original Purchaser and cannot be transferred to any other party.
- Exclusions. Notwithstanding anything to the contrary herein, Bethyl shall have no liability under any of its representations or warranties with respect to: (i) the use of Product in combination with any software, tools, hardware, equipment, supplies, accessories or any other materials or services not furnished by Bethyl or expressly intended for use with the Product as set forth in any other documentation supplied by Bethyl with the Product ("Documentation"); (ii) any defect in the Products arising from specifications or materials supplied by Purchaser; (iii) ordinary wear and tear; (iv) fraud, negligence or willful misconduct of Buyer or any of its affiliates or representatives; (v) shipping, storage or conditions after delivery of the Products to the Purchaser; (vi) failure to follow Product use restrictions, recommendations or instructions; (vii) any alteration, modification, repair or enhancement of the Product by Purchaser or any third party without Bethyl's prior written consent; (viii) any misuse of the Products or Purchaser’s use of the Products not in accordance with its specifications; (ix) any allegation that Purchaser’s use of the Products infringes the intellectual property rights of any third party; (x) any Product damaged or lost as a result of any Force Majeure Event (as defined in Section 17 below); or (xi) any Product, if the price payable for such Product has not been paid in full in accordance with these Sale Terms.
- Warranty Claims. Any warranty claim hereunder must be delivered in writing to Bethyl within the above warranty period or be forever waived. Purchaser’s sole and exclusive remedy and Bethyl’s sole and exclusive liability for any warranty claim hereunder is limited to repair, replacement, credit or refund of the invoiced price (exclusive of shipping charges) at Bethyl’s sole discretion. Purchaser shall return the defective Product pursuant to the "Inspection and Returns" section of these Sale Terms. This remedy is Purchaser’s sole and exclusive remedy and Bethyl’s sole and exclusive liability for claims of defective Product.
- DISCLAIMER. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 13.a, BETHYL MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR NATURE, AND HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE (WHETHER EXPRESS OR IMPLIED), INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INFRINGEMENT, AND ANY OTHER WARRANTIES (WHETHER IMPLIED, STATUTORY, ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE). TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BETHYL EXPRESSLY DISCLAIMS, AND PURCHASER EXPRESSLY WAIVES, ANY WARRANTY REGARDING RESULTS OBTAINED THROUGH THE USE OF THE PRODUCTS INCLUDING, WITHOUT LIMITATION, ANY CLAIM OF INACCURATE, INVALID, OR INCOMPLETE RESULTS.
13. Limitations on Remedies.
- Exclusion of Consequential Damages. IN NO EVENT SHALL BETHYL BE LIABLE TO PURCHASER OR ANY OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, INDIRECT OR EXEMPLARY DAMAGES OF ANY KIND, OR LOST PROFITS OR REVENUE, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT BETHYL WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT WILL BETHYL BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS.
- Limitation on Monetary Recoveries. NOTWITHSTANDING ANY OTHER PROVISIONS OF THESE TERMS AND/OR ANY OTHER AGREEMENT BETWEEN BETHYL AND PURCHASER FOR THE PURCHASE OF THE PRODUCTS, BETHYL’S TOTAL LIABILITY ARISING FROM OR IN RELATION TO THE AGREEMENT OR THE PRODUCTS, WHETHER ARISING IN CONTRACT, TORT, STATUTE OR OTHERWISE, SHALL BE LIMITED TO THE TOTAL AMOUNT PAID BY PURCHASER TO BETHYL FOR THE APPLICABLE PRODUCTS.
14. Indemnification. Purchaser shall hold harmless and indemnify Bethyl and its affiliates, and their respective directors, employees, agents and representatives (collectively the "Indemnified Parties"), from any and all damages, liabilities, costs and expenses (including, but not limited to, costs of litigation, attorneys’ fees and any other costs and expenses), fines, or losses -- and further Purchaser shall (if requested by Bethyl) defend the Indemnified Parties in connection with any threatened, initiated or asserted claims, actions, demands, investigations, or suits (including, but not limited to, claims, actions, demands, investigations or suits threatened, initiated or asserted by third parties) – in each such case that arise out of any of the following: (a) Purchaser’s negligent or willful acts, or those of its employees and/or agents; (b) any repair of alteration of any Product by any person or entity other than Bethyl (unless expressly authorized in writing by Bethyl); (c) Purchaser’s modification, or combination of any Product with any non-Bethyl goods or products (including if such modification or combination results in the actual or alleged infringement of any intellectual property rights of any third party); (d) Products produced by Bethyl according to Purchaser’s specifications; (e) Purchaser’s violation of any law or regulation (including, but not limited to export control laws); or (f) Purchaser’s breach of the Agreement. At Bethyl's option, Bethyl will be entitled to retain separate counsel to investigate, respond to or defend any claim, action, demand, investigation or suit and all reasonable expenses and costs of such counsel shall be paid by Purchaser.
15. Confidentiality and Intellectual Property.
- Confidentiality. "Confidential Information" means any information that Bethyl reasonably considers to be confidential, privileged or proprietary, including without limitation business information, specifications and all related writings, drawings, designs and similar works or any other information which is disclosed by Bethyl to Purchaser. Confidential information shall not include information which: (i) is already known to Purchaser; (ii) is or becomes part of the public domain through no breach of Purchaser’s obligations to Bethyl; (iii) is lawfully disclosed to Purchaser by a third party that is under no obligation of confidentiality; or (iv) is independently developed by or for Purchaser without use of the Confidential Information. All Confidential Information is the exclusive property of Bethyl, and Bethyl retains all of its rights, title and interests therein. Purchaser agrees to use Confidential Information for the exclusive purpose of performing this Agreement. Purchaser shall not disclose or provide any Confidential Information to any third party and shall take all necessary measures to prevent any such disclosure by its employees, agents, contractors or consultants. Upon request of Bethyl, Purchaser shall return all Confidential Information to Bethyl.
- Intellectual Property. Purchaser acknowledges that as between Purchase and Bethyl, all intellectual property rights (patent, trademark, copyright, trade secret or otherwise) relating to the Products and the Documentation, are solely and exclusively owned by Bethyl. Bethyl’s sale or transfer of Product to Purchaser grants to Purchaser a limited non-transferable right (i) to use the quantity of Product purchased under this Agreement only as authorized by these Sale Terms, and (ii) to use the applicable Documentation and content contained therein (e.g., protocols, validation data and images) solely for Purchaser’s authorized use of the Product and for no other purpose. The sale or transfer of a Product to Purchaser does not grant Purchaser any other license rights to Bethyl’s intellectual property, including, without limitation, the right to make or have made any Product or any portion thereof, and the right to reproduce, display, redistribute copies, create derivative works or otherwise use the Documentation and content thereof.
16. Force Majeure. Bethyl shall not be liable for any failure of or delay in performing any of its obligations under this Agreement and shall not be deemed to be in breach of any of its obligations hereunder when such failure, delay or breach is due to circumstances beyond its reasonable control, including, without limitation, war, terrorism, riots, fire, explosion, flood, earthquake, insurrection, embargo, strikes of employees, currency restriction, shortage of transport, inability to obtain power or fuel, general shortage of material, acts or omissions of governments or failure of public utilities or common carriers, epidemic, pandemic, quarantine, shortage of or inability to obtain supplies (each, a "Force Majeure Event"). Such delay or non-performance will be excused for as long as such Force Majeure Event shall be continuing.
17. Governing Law/Disputes. All disputes with Bethyl including all claims relating to this Agreement shall be governed by the laws of the Commonwealth of Texas, without regard to provisions on the conflict of laws. The parties hereby submit to the sole and exclusive jurisdiction of the state courts located in Montgomery County, Texas and the federal courts located in the Southern District of Texas (and the appellate courts having jurisdiction over such state and federal courts). The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement or any other written agreement with Bethyl unless expressly stated otherwise. Any cause of action brought by Purchaser arising out of or relating to this Agreement or to Products purchased from Bethyl, must be brought within one year after such cause of action arose. Actions not commenced by Purchaser within one year are permanently barred. This paragraph shall survive expiration or termination of this Agreement.
18. Notices. Except as otherwise expressly set forth in the Agreement, all notices to be given under the Agreement shall be in writing and shall be given as follows:
- To Bethyl, at the following address via overnight courier or U.S. certified mail (return receipt requested):
Bethyl Laboratories, Inc.
P.O. Box 850
Montgomery, TX 77356
Attn: John Carwile
(or such other address as Bethyl may expressly indicate for notices at a Site).
- to Purchaser, via overnight courier, U.S. certified mail (return receipt requested) or email (which shall be deemed a writing) at any address provided by Purchaser to Bethyl and set forth in (i) the account profile at the Site, (ii) any address to which Purchaser directs Bethyl to ship Products, or (iii) any other address as Purchaser may, from time to time, designate by giving written notice to Bethyl in accordance with this Section.
19. Miscellaneous. Purchaser may not assign, delegate or otherwise transfer its rights and obligations in whole or part, or any right, remedy, obligation or liability arising hereunder, except with the prior written consent of Bethyl. All provisions set forth herein that would, by their nature, survive termination including without limitation the Sections of these Sale Terms entitled "Product Use and Restrictions", "Limited Warranty and Disclaimer", "Limitation on Remedies", "Indemnification" "Confidentiality and Intellectual Property", "Governing Law/Disputes", and "Miscellaneous" will survive any termination or expiration of this Agreement. In the event that any provision of the Agreement is held to be illegal, invalid or unenforceable under any present or future law, rule or regulation, such provision will be deemed stricken from the Agreement but such illegality, invalidity or unenforceability will not invalidate any of the other provisions of the Agreement.