All orders received and all sales made by NOAH Technologies Corp. (herein called "NOAH") are expressly conditioned upon the following terms and conditions. Any additional or different terms (except additional provisions regarding shipping instructions whether or not materially different set forth in any purchase order or other communication from Buyer are objected to and shall not be binding upon NOAH unless specifically accepted in writing by an authorized representative of NOAH.
NOAH warrants that its products conform to the description of such products as provided in NOAH’s catalog, NOAH’s analytical information or other literature, if furnished to Buyer. NOAH's warranties made in connection with this sale shall not be effective if NOAH has determined, in its sole discretion; that Buyer has misused the products as provided in NOAH's catalog, NOAH's analytical information or other literature, if furnished to Buyer. NOAH's warranties made in connection with this sale shall not be effective if NOAH has determined, in its sole discretion; that Buyer has misused the products in any manner or has failed to use the products in accordance with instructions, if any, furnished by NOAH. The above warranty is exclusive, and NOAH makes no other warranty, expressed or implied, including any implied warranty or warranty of merchantability or fitness for any particular purpose. NOAH's sole and exclusive liability and Buyer's exclusive remedy with respect to products proved to NOAH's satisfaction to be conforming shall be the replacement of such products without charge or refund of the purchase price, in NOAH's sole discretion, upon the return of such products in accordance with NOAH's instructions, NOAH shall not be liable for any incidental consequential or contingent damages.
2. DELIVERY AND DELAYS:
Unless specified differently in writing, all sales are F.O.B. NOAH's shipping point. Delivery of goods to the carrier at NOAH's plant or other loading point shall constitute delivery to Buyer and the title will pass to Buyer. Regardless of shipping terms, all risk of loss or damage in transit shall be borne by Buyer. NOAH reserves the right to make delivery in installments, all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of Buyer's obligations to accept remaining deliveries. If NOAH is unable for any reason to supply the total demands for goods specified in Buyer's order, NOAH may allocate its available supply among any or all buyers on such basis as NOAH may deem fair and practical, without liability for any failure of performance which may result therefrom. NOAH shall not be liable for any loss, damage or penalty as a result of any delay in or failure to manufacture, deliver or otherwise perform hereunder due to any cause beyond NOAH's reasonable control.
Buyer may not cancel its order after shipment from NOAH's factory or warehouse. If Buyer wishes to cancel their order prior to shipment, the Buyer must notify Noah in writing. If the cancellation is accepted by Noah, Buyer will be advised of any cancellation charge incurred which shall include lost profits and all expenses incurred by NOAH in connection with the canceled order.
Buyer shall hold NOAH harmless against any expense or loss resulting from infringement of patents or trademarks arising from compliance with Buyer's designs or specifications or instructions. NOAH shall have the right but not the obligation to defend any suit or proceeding or take any action it deems proper for its defense. NOAH shall not be liable for any costs or damages incurred by Buyer as a result of any suit or proceeding brought against Buyer from infringement of trademarks or other matter where NOAH has followed the Buyer's instructions, information and specification of order. The sale of products by NOAH does not convey any license, by implication, estoppel, or otherwise, under patent claims covering the use or manufacture of any product.
Goods may not be returned for credit except with NOAH's permission, and then only in strict compliance with NOAH's return shipment instructions. Any product/shipment returned to Noah without a Return Authorization Number will be returned at Buyer’s expense.
6. TECHNICAL ASSISTANCE:
At Buyer's request, NOAH may furnish technical assistance and information with respect to NOAH's products. Unless otherwise agreed, all such technical assistance and information will be provided gratis, and Buyer assumes sole responsibility for results obtained in reliance thereon. NOAH makes no warranties of any kind or nature with respect to technical assistance or information provided by it. Any suggestions by NOAH regarding use, application or suitability of the products shall not be construed as an express warranty unless expressly designated as such in writing by NOAH.
Unless otherwise specified in writing, any variation over or under in quantities shipped not exceeding 10% of the quantities ordered shall constitute compliance with the order and the unit price will continue to apply.
8. SECURITY INTEREST:
Buyer hereby grants to NOAH a security interest in all products sold hereunder until all payments shall have been made in full. Buyer agrees to execute any financing documents and to take any other steps as may be requested by NOAH to perfect such security interest.
Terms of sale are net 10 days of date of invoice, unless otherwise stated. Materials will be billed at the price in effect at the time shipment is made. Any order for products by Buyer shall constitute a representation that Buyer is solvent. If in the judgment of NOAH, the financial condition of Buyer at any time does not justify continuance of production or shipment on the terms of payment originally specified, NOAH may require full or partial payment in advance. In the event of the bankruptcy or insolvency of Buyer or in the event any proceeding is brought by or against Buyer under the bankruptcy or insolvency laws, NOAH shall be entitled to cancel any order then outstanding at any time during the period allowed for filing claims against the estate and shall receive reimbursement for its cancellation charges. NOAH's rights under this provision are in addition to all rights available to it at law or in equity. Except to the extent otherwise specified by NOAH, prorated payments shall become due without setoff as shipments are made. If NOAH consents to delay shipments after completion of any product, payment shall become due on the date when NOAH is prepared to make shipment. In the event of any such delay, title shall pass and the product shall be held at Buyer's risk and expense.
10. SALES AND SIMILAR TAXES:
Unless otherwise stated, NOAH's prices do not include any use tax, sales tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature imposed by any governmental authority. Consequently, in addition to the prices specified herein, the amount of any present or future sales tax, as described above, shall be paid by Buyer or in lieu thereof Buyer shall provide NOAH with a tax exemption certificate acceptable to the taxing authorities.
11. PURCHASE PRICE:
Unless otherwise stated in writing by NOAH, prices, terms of payment and pricing policies will be those set forth in NOAH's pricing policies and price schedules in effect at this time of shipment.
12. BUYERS'S USE OF PRODUCTS:
NOAH's products are intended for manufacturing purposes or laboratory research purposes only and are not to be used for any other purposes which shall include but not be limited to in foods, drugs, cosmetics, for humans, or medical diagnostic purposes. Buyer acknowledges that the products have not been tested by NOAH for safety and efficacy in food, drug, device, cosmetic, diagnostic or any other use, unless otherwise stated specifically by NOAH. Designation such as NF, National Formulary, USP, United States Pharmacopia, ACS, Cosmetic Grade, Pharmaceutical Grade, Food Grade or similar terms are used to indicated the desired chemical analysis and specification and not to recommend for any use indicated above. Buyer expressly represents and warrants to NOAH that Buyer will properly test, use, manufacture and market any products purchased from NOAH and any final articles made from them in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with all applicable federal or other governmental laws and regulations, now and hereinafter enacted. Buyer has the responsibility to verify the hazards and to conduct any further research necessary to learn the hazards involved in using products purchased from NOAH. Buyer also has the duty to warn Buyer's customers, personnel, auxiliary personnel, whether employed by Buyer or not or any persons or organization who may conceivably be exposed to any hazards generated from the product of any risks involved in using, handling, or exposure to the products. Buyer agrees to comply with instruction and information, if any furnished by NOAH relating to the use of the products and not misuses the products in any manner. If the products purchased from NOAH are to be repackaged, relabeled or used as starting materials or components of other products, Buyer will verify Noah's analysis and assay of the products. Buyer agrees to indemnify and hold NOAH harmless from against any and all losses, damages and expenses (including attorney's fees and other costs of defending any action) that NOAH may sustain or incur as a result of any claim of negligence, breach of implied warranty, strict liability in tort or other theory, by Buyer, its officers, agents or employees, its successors and assigns, and its customers, whether direct or indirect, in connection with the use of NOAH's products, or by reason of Buyer's failure to perform obligations herein contained. Buyer shall notify NOAH within 15 days of Buyer's receipt of knowledge of any event, incident, matter or accident involving NOAH's products resulting in personal injury or damage to property. Buyer shall fully cooperate with NOAH in the investigation and determination of the cause of such event, incident, matter or accident, and shall make available to NOAH all reports, statements and test made by Buyer or made available to Buyer by other. The furnishings of such information to NOAH and any investigation by NOAH shall not constitute an assumption of any liability by NOAH.
13. RECEIPT AND ACCEPTANCE:
Immediately upon Buyer's receipt of any and all goods shipped hereunder, Buyer shall inspect the goods and shall notify NOAH in writing of any claims for damages, shortages, defects or deviation from specifications and shall hold the goods for NOAH's written instructions concerning dispositions. If Buyer shall fail to so notify NOAH within five (5) days after the goods have been received by Buyer, such goods shall conclusively be deemed to conform to the terms, conditions and specifications hereof and to have been irrevocably accepted by the Buyer.