Pre-Order Terms and Conditions
These Pre-Order Terms and Conditions (“Terms”) govern the placing of orders and pre-orders with Phitonex, Inc. (“we”, “ us”, or “Phitonex”) for our Products. By submitting your Pre-Order, you agree to be legally bound by these terms.
- Purpose of Agreement. This Agreement is for the sale to Customer of Phitonex’s conjugated antibodies, fluorescent labels, conjugation kits and other accessories (collectively, “Products”). All sales of Products to Customer are subject to the terms and conditions of this Agreement. Customer acknowledges and agrees that it is purchasing physical materials only. Customer further acknowledges and agrees that this Agreement does not grant Customer or anyone else a license under any of Phitonex’s patents or other intellectual property rights other than a limited license for Customer to use the Products in accordance with the terms and conditions of this Agreement.
- Payment. You will be charged the full price of the Products on the Effective Date. If Phitonex is unable to commence shipping the Products on or before the six-month anniversary of the Effective Date, you may request a full refund from Phitonex.
- Price. Prices quoted are exclusive of all excise and similar taxes, including, without limitation, taxes on manufacture, sales, receipts, and all costs of transportation, packaging, insurance and other costs, including export and import duties, and associated fees if applicable. All such taxes and costs will be paid directly by you or added to the invoice as a separate charge and paid by you.
- Delivery Schedule. Phitonex will make efforts to begin delivering Products to you by the date indicated herein. You understand and agree that all periods stated for delivery of Products are not guaranteed, are to be treated as estimates only, and are subject to change. In the event that a delay arises and the estimated shipment and/or delivery of Products is not met, Phitonex is not responsible for any damages that may occur, nor shall Phitonex be obligated, except as expressly set forth herein, to provide any discounts, refunds, or credits due to any such delays or non-delivery. At Phitonex’s discretion, Phitonex will aim to provide periodic updates with respect to the delivery schedule for Products.
- Cancellation. If Phitonex cancels your order you will receive a full refund of the purchase price without interest (and you will not pay any processing fee).
- Restrictions on Your Use of Products. The Products are sold to you for your personal use only and subject to you complying with the terms and conditions of this Agreement. You may not, directly or indirectly: (i) remove any proprietary markings or notices from the Products; (ii) cause, permit or authorize any modification, creation of derivative works, translation, reverse engineering, decompiling or disassembling of the Products; (iii) sell, assign, transfer, sublicense, or otherwise grant rights in the Products to anyone else; (iv) use the Products for the purpose of developing a competing service or product; (v) file any patent applications or seek any other intellectual property protection related to the Products or use of the Products; or (vi) use the Products to, or in any way that would, violate any applicable law.
- Phitonex’s Ownership of Intellectual Property Rights in the Products. Your purchase and use of the Products are subject to you respecting all patents and other intellectual property rights in the Products. You acknowledge that the Products and/or the methods associated with use of the Products may fall within the scope of one of more patents, patent applications or other intellectual property owned by Phitonex and/or its licensors, that Phitonex is not licensing any intellectual property to you or anyone else as part of this Agreement (other than granting you a non-assignable, non-transferable, non-sublicensable right for you to use the Products for your personal use in accordance with the terms and conditions of this Agreement), and that Phitonex and/or its licensors retain all patent and other intellectual property rights in the Products and use of the Products. You agree not to challenge any of Phitonex’s or its licensors’ intellectual property rights relating to or associated with the Products or use of the Products.
- DISCLAIMER. PHITONEX DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS AND/OR USE OF THE PRODUCTS.
- LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL PHITONEX BE RESPONSIBLE FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OR RELATED TO THIS AGREEMENT, THE PRODUCTS, OR ANY USE OF THE PRODUCTS. IN THE EVENT PHITONEX IS HELD LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE PRODUCTS, OR ANY USE OF THE PRODUCTS, THE SOLE AND EXCLUSIVE REMEDY WILL BE THE FULL REFUND TO YOU OF YOUR PURCHASE PRICE WITHOUT INTEREST.
- Miscellaneous. This Agreement constitutes the entire agreement between the parties pertaining to its subject matter and supersedes all prior agreements, representations, and understandings of the Parties pertaining to such subject matter. This Agreement shall be governed by and shall be construed in accordance with the laws of the State of Delaware, USA. The Parties agree that any suit, action or proceeding arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts in Wilmington, Delaware, and both Parties hereby consent to jurisdiction and venue in such courts for purposes of any suit, action or proceeding arising out of or relating to this Agreement. Phitonex may assign this Agreement in its discretion without your consent. You may not assign this Agreement without Phitonex’s prior written consent. Both Parties represent and warrant they have the right to enter into this Agreement and perform their respective obligations under this Agreement.
- FORCE MAJEURE. Force Majeure of any kind, unforeseeable production, traffic or shipping disturbances, war, acts of terrorism, fire, floods, unforeseeable shortages of labor, utilities or raw materials and supplies, strikes, lockouts, acts of government, pandemics, and any other hindrances beyond the control of the Party obliged to perform which diminish, delay or prevent production, shipment, acceptance or use of the Products, or make it an unreasonable proposition, shall relieve such Party from its obligation to supply or take delivery, as the case may be, as long as and to the extent that the hindrance prevails. If, as a result of the hindrance, supply and/or acceptance of Products is delayed by more than six months from the Effective Date, either Party shall have the right to cancel the order(s) of Products affected by the delay.