By placing a Product Order in Zageno’s Platform, you (the "Customer") agree with the following Terms of Sale (the “Contract”).
- "Affiliate” means each Affiliate of Customer which has the benefit of the Services as a third party. An Affiliate is any entity that, with respect to any other entity, is Controlled by, under common Control, or Controls, such other entity. "Control" and its derivatives means the ownership (directly or indirectly) of a majority of the voting shares of such entity or is the ability (directly or indirectly) to appoint a majority of the directors of such entity or the authority to direct the management or policies of such entity, by contract or otherwise
- “Confidential Information” means, subject to the exceptions in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within 30 days of disclosure to the other party (the “Receiving Party”); except that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified.
- “Defective” means a Product that does not meet the specifications for such Product displayed on the Platform.
- “Deliver,” or “Delivery,” as appropriate, means the delivery of Products to the destination specified in the Product Order.
- “Destination” means the Customer delivery location specified in the Product Order.
- “Product Orders” mean the orders for Products that Customer places on the Platform.
- “Platform” means Zageno’s proprietary e-commerce marketplace and procurement platform and associated software and technology.
- “Products” means the goods and services that Zageno provides to Customer.
- “Supplier” means the suppliers who sell or make the Products available for sale on the Platform.
- “Taxes” means any and all applicable sales taxes, use and other taxes or duties, however designated, including withholding taxes, royalties, know how payments, customs, privilege, excise, sales, use, value added and property taxes related to any Customer payment made to Zageno for Zageno’s provision of Products to Customer under or pursuant to this Contract; exclusive, however, of any taxes imposed upon the net income or capital of Zageno, any taxes in lieu of such net income taxes, and any other taxes that are to be borne by Zageno under Applicable Law.
- “Zageno” means Zageno Inc. and its subsidiaries and affiliated entities.
- “Applicable Laws”means all laws, regulations, statutes, or ordinances applicable to each party’s respective performance of its obligations under this Agreement.
Contract Terms; Price; Acceptance of Product Order
- All Product Orders are subject to the confirmation of the applicable Supplier. A Product Order is not confirmed until Zageno provides written confirmation to Customer (notification via email or the Platform is sufficient).
- Zageno will use reasonable efforts to confirm Product Orders within 48 hours of a Product Order’s authorization or approval pursuant to this Contract.
- Following correspondence with the relevant Supplier, Zageno may respond to a Product Order and offer, for each Product included in the Product Order, different pricing for Products, different Product volume or unit number availability, different Product shipping costs or timing, or other terms that differ from the initial Product Order (including any amounts due for: (i) Taxes; (ii) shipping and handling fees; (iii) special packaging materials; (iv) carrier surcharges (including, without limitation, fuel surcharges); (v) shipping palettes and environment-controlled shipping; and (vi) hazardous material fees imposed by government regulation). Zageno will provide notice of such different terms (such notice, the “Order Exception”) to Customer. Customer may accept the Order Exception via the Platform (in which case, such new terms supersede the prior Product Order and such new terms are deemed the Product Order), or Customer may reject the Order Exception, in which case the applicable Product Order will be cancelled.
Taxes, where applicable, will be added as a separate line item to the Product Order. Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Zageno. Customer will not withhold any Taxes from any amounts due Zageno. If any claim is made against Zageno for any such Taxes, Zageno will promptly notify Customer of the amount of such Taxes and Customer will promptly pay such amount to Zageno or its designated payee. If Customer possesses or otherwise enjoys tax-exempt status, Customer will provide a duly authorized certificate of tax exemption to Zageno prior to or at the time of order placement or as otherwise requested by Zageno.
Delivery; Inspection and Acceptance
- Shipping will be added as a separate line item to the Product Order. Domestic delivery of all Products will be FCA Incoterms 2020 Destination (unless otherwise specified in the Product Order). Delivery will not be complete until all the Products under a Product Order have been received, inspected, and accepted by Customer or the relevant Customer Affiliate. Zageno will confirm with the Supplier the carrier, forwarding company, and means of transport.
- Delivery failures. If Zageno is unable, or anticipates that the Supplier will be unable, for any reason to Deliver in whole or in part the quantities of Product required under any Product Order, Zageno will give written notice to the Customer setting out the magnitude of and reasons for such failure or shortfall.
- Title to and risk and in the Products will remain with Zageno until delivery has been completed in accordance with this clause 4, at which point they will pass to Customer or its Affiliate (as applicable).
Cancellation and Product Return Policy
Cancellations and returns of non-Defective Products are allowed only under the following conditions:
- Customer may not cancel or modify an order without the prior written consent of Zageno, which may be withheld for any reason or no reason at all, and any changes may be subject to price adjustment and cancellation fees; and
- Zageno must authorize all Product returns and Zageno reserves the right to reject any returns requested more than 30 days after the delivery date. Zageno must receive all authorized returns within 30 days of the return authorization. Zageno reserves the right to reject any return shipment of Product that has not been authorized by Zageno and to return such shipment to Customer at Customer’s expense. All returns are subject to a minimum 10% restocking charge. If Zageno authorizes a return of Products, Customer will be responsible for all disposal fees, restocking charges, repackaging costs, and all costs related with returning the Products in compliance with Applicable Laws. Customer is responsible for all transportation fees related to returned Product unless otherwise authorized in advance by Zageno.
Representations and Warranties
- Zageno representations and warranties. Zageno represents that:
- the Products will conform to the specifications listed in the Product description on the Platform at the time and place of Delivery and during the applicable warranty from the manufacturer;
- the Products will be transferred with good and merchantable title, free and clear of any encumbrances;
- to Zageno’s knowledge, all Products will be Manufactured in full compliance with all applicable Law in effect at the time and place of Manufacture of any Products and that all waste, including all hazardous waste, generated at the time of Manufacture of any Products will be disposed of in accordance with all Applicable Law;
- the Supplier has acknowledged to Zageno that it is, or is in the process of acknowledging, that it complies with anti-bribery and anti-corruption laws, that it does not use child labor that could hinder the normal development of such child, that it does not use forced labor in any form, that it has policies in place to provide a healthy and safe workplace and to protect the environment, and that any violation of the provisions of this subparagraph; and
- Zageno will not deal in any counterfeit product. Zageno will comply with any Customer instruction to implement measures to prevent counterfeiting of a Product.
- Excluding warranties. Except as expressly set out in this Contract, all other representations and warranties which might have effect between the parties or be implied or incorporated into this Contract, whether by statute, common law or otherwise are hereby disclaimed including implied warranties of merchantability, infringement, suitability, or fitness for a particular use or purpose.
Indemnification for Products
- Customer Indemnities. Customer will indemnify, defend, and hold harmless Zageno, each of its Affiliates, and each of their respective directors, officers, employees, and agents (each a "Zageno Indemnitee") for any loss, liability, and cost, including reasonable attorney's and expert’s fees ("Losses"), arising from or in connection with any allegation, claim or proceeding (whether actual or threatened) raised by a third party and any statutory or regulatory fines ("Claims") made against any Zageno Indemnitee:
- in respect of personal injury, death, loss, or damage to tangible property to the extent resulting from Customer's breach of this Contract or negligence; and
- to the extent resulting from Customer’s failure to comply with its data protection, confidentiality, or privacy obligations under this Contract.
- Zageno Indemnities. Zageno will indemnify, defend, and hold harmless Customer, each of its Affiliates, and each of their respective directors, officers, employees, and agents (each a "Customer Indemnitee") for any Losses arising from or in connection with any Claims made against any Customer Indemnitee:
- in respect of personal injury, death, loss, or damage to tangible property to the extent resulting from Zageno's breach of this Contract or negligence;
- to the extent resulting from Zageno’s failure to comply with its data protection, confidentiality, or privacy obligations under this Contract; and
- to the extent resulting from Zageno's breach of Applicable Law in supplying the Products.
- Indemnified Party obligations. Customer (in the context of the indemnities in the Zageno indemnities clause) or Zageno (in the context of the indemnities in the Customer indemnities clause) (each in the context of the following clauses an "Indemnified Party") will:
- promptly notify the other party (the "Indemnifying Party") when it becomes aware of any Claims raised by a third party in respect of which an indemnity is given in this clause ("Third-Party Claim"); and
- at its cost provide the Indemnifying Party with reasonable information and assistance in defending any Third-Party Claim.
- Indemnifying Party obligations. Indemnifying Party will:
- defend the Third-Party Claim at its own cost and in a competent manner (except that if it fails to comply with its obligations in this clause the Indemnified Party may take over conduct, in which circumstance the Indemnifying Party at its own expense will provide all reasonable information and assistance in defending any Third-Party Claim); and
- not settle or compromise any Third-Party Claim without the Indemnified Party's prior written consent (not to be unreasonably withheld or delayed).
Limitation of Liability
- Nothing in this Contract will limit the liability of either party in respect of death or personal injury caused by negligence; fraud or fraudulent misrepresentation; any matters in which it would be unlawful for the parties to limit their liability; wilful misconduct or gross negligence; breach of any obligations under this Contract in relation to confidentiality, data protection or privacy; and damage to tangible property caused by negligence. None of the liabilities referenced in this clause will form part of the calculation as to whether any limits on liability under this Contract have been reached.
- Subject to the Exceptions clause, in no event will the aggregate liability of either party arising out of or in connection with the Agreement (whether in contract, tort (including negligence), or otherwise) exceed 200% of the Price paid or payable for the supply of the Products under the relevant Product Order.
- SUBJECT TO THE EXCEPTIONS CLAUSE ABOVE NEITHER PARTY WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS CONTRACT FOR ANY EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUE, BUSINESS, USE, DATA, PRODUCTIVITY, OR GOODWILL OR COST OF CAPITAL, RECALL, OR COVER) WHETHER BASED ON CONTRACT (INCLUDING, WITHOUT LIMITATION, WARRANTY), TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OR FORM OF ACTION, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
Customer’s Obligations, Products
Customer represents and warrants that it is familiar with the characteristics, qualities, and uses of the Products that it is purchasing from Supplier through Zageno and acknowledges that hazards associated with the possession and use of the Products may exist. Customer is responsible for instructing and warning its employees and all other persons who may come into contact with the Products regarding such hazards. Unless otherwise expressly stated on the Products or in the documentation accompanying the Products, the Products are intended for research only and are not to be used for any other purpose, including without limitation, unauthorized commercial uses, in vitro diagnostic uses, ex vivo or in vivo therapeutic uses, or any type of consumption by or application to humans or animals, and neither Zageno nor Supplier assumes any warranty or liability for such uses unless stated on the Product or in the Product documentation.
Products purchased or received under this Contract, which may include technology and software, are subject to the customs and export control laws, restrictions, regulations, and orders of the United States of America (“U.S.”) and may also be subject to the customs and export laws and regulations of the country in which the Products are manufactured received, or both. Each party agrees to comply with all applicable export laws, rules, restrictions, and regulations of any relevant jurisdiction, including without limitation, the Export Administration Act of 1979 and the Arms Export Control Act of 1976, and represents and warrants that it will not: (i) export, or transfer for the purpose of re-export, any Product to any prohibited or embargoed country or to any denied, blocked, or designated person or entity in violation of Applicable Law; or (ii) transfer, by electronic transmission or otherwise, any software or technology to a foreign national or a foreign destination in violation of Applicable Law. Each party (and Zageno will procure that each Supplier) represents and warrants it is not on the Denied Persons, Specially Designated Nationals, or Debarred Persons List, or any equivalent list maintained by a foreign regulatory authority and is not otherwise prohibited by law from purchasing the Products under this Contract. Customer will obtain any license to export, re-export or import as may be required.
Each party (and Zageno will procure that each Supplier) represents and warrants that:
- it is familiar with and understands the terms of the U.S. Foreign Corrupt Practices Act of 1977 (“U.S. FCPA”), and that it will comply with the U.S. FCPA and all other applicable anti-bribery or anti-corruption laws or regulations of any other country or jurisdiction that are applicable to the parties’ business activities hereunder;
- no principal, partner, officer, director, or employee of either party (nor any Supplier) is or will become an official of any governmental body of any country or jurisdiction (other than the U.S.) that is applicable to the parties’ business activities hereunder; and
- it has not and will not offer, pay, give, or promise to pay or give, directly or indirectly (including through a third party or intermediary) any payment or gift of any money or thing of value to any government official, government employee (or employee of any company owned in part by a government), political party, political party official, or candidate for any government or political office (each, a “Government Official”) to influence any acts or decisions of such Government Official or to induce such official to use his or her influence with the local government to effect or influence the decision of such government in order to assist either Zageno, Supplier, or Customer in its performance of their obligations under this Contract or to benefit of another party or the Supplier.Failure by either party (or a Supplier) to comply with this section will be deemed a material breach of a material provision of this Contract and Zageno or Customer will have the right to immediately terminate this Contract and its performance without any liability the non-breaching party.
- Zageno will comply and procure that Suppliers comply with the Zageno Code of Conduct (found at https://zageno.com/zageno-supplier-code-of-conduct/).
- Zageno will comply and procure that Suppliers will comply with Applicable Law in relation to its performance under the Contract (and will perform its obligations under this Contract in a manner which enables Customer to comply with Applicable Law in receipt or use of the Products) including by obtaining and maintaining all approvals, licenses, permits and certificates necessary to supply the Products.
Each party will maintain in confidence, not disclose to any third party (except in Zageno’s case a relevant supplier whose involvement is necessary to fulfill a Product Order, and not use, except for the specific purpose of performing under this Contract, all Confidential Information furnished to it by the other party in connection with this Contract, as a result of discussions, negotiations, or other communications in relation to the Products, or derived from the performance of this Contract, and will return to the other party, upon request, all copies then in Customer’s possession of such Confidential Information, as appropriate. Each party will inform its employees, agents, and representatives of these obligations and will require them to assume equivalent obligations and Zageno will procure that the Supplier enters into similar obligations. Each party is liable for the acts and omissions of its employees, agents, and representatives with respect to Confidential Information. Each party acknowledges that the other party may not have any adequate remedy at law for the breach by the other party of any one or more of its obligations contained in this section and agrees that if any such actual or potential breach occurs, the other party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to that party.
Each party acknowledges that Supplier or its licensors own the intellectual property rights relating to the Products and the product descriptions, catalogs, images, text, links, promotional codes, specifications, and other information displayed on the Platform and that no title in such intellectual property rights is transferred to Customer pursuant to the Contract.
Zageno will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party’s financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the parties in writing, in the event such non-performance continues for a period of 30 days or more, the party not affected by the Force Majeure Event may terminate any Product Orders made under this Contract by giving written notice thereof to the other party. Upon the occurrence of any Force Majeure Event, the affected party will give the other party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform.
The Contract and its performance will be governed, interpreted, construed, and regulated by the laws of the State of New York, United States, without reference to its choice of law rules. All disputes arising out of the Contract will be resolved by arbitration in accordance with the International Arbitration Rules of the Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by a commercial arbitrator with substantial experience in resolving complex commercial contract disputes, who must be selected from the appropriate list of JAMS arbitrators in accordance with such Arbitration Rules and Procedures. All such arbitration will be conducted in New York, New York, U.S. The arbitrator will have the authority to grant specific performance as well as any other remedy authorized by Applicable Law and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator may determine. The parties will keep the arbitration confidential and will cooperate to ensure the confidentiality of the arbitration when confirming any arbitrable award. The prevailing party in the arbitration will be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection with the arbitration. Notwithstanding the foregoing, each party will have the right to institute an action for preliminary injunctive relief without first seeking recourse to arbitration to avoid immediate and irreparable harm in the state or federal courts located in New York, New York, and each party hereby submits to the in personem jurisdiction and venue of those courts and agrees that any such dispute may be filed in those courts and no other.
Updated August 23, 2022