Ascent™ FBR System Terms and Conditions of Sale

The terms and conditions of sale contained herein shall apply to all quotations and offers to sell and purchase orders accepted by Corning Incorporated’s Life Sciences Division (“CLS”) for the Ascent™ FBR System (the “System”). CLS’ standard terms and conditions of sale set forth at https://www.corning.com/worldwide/en/products/life-sciences/support-main/terms-and-conditions.html shall apply to all quotations and offers to sell and purchase orders accepted by CLS for the Ascent® FBR System consumable products.

CLS’s acceptance of any proposal to purchase or purchase order issued by the buyer identified on the order acknowledgement or quotation to which these terms relate (hereinafter, such buyer is referred to as “you”) is expressly made conditional on the terms and conditions of sale as set forth herein, irrespective of whether you accept them in writing, by implication or by acceptance of and payment for the goods sold hereunder. There terms and conditions of sale shall govern the contractual arrangement entered into between CLS and you with respect to the System to the exclusion of any terms or conditions of purchase proposed by you.

1. Prices. Unless otherwise stated in writing by CLS, all prices quoted shall be exclusive of transportation, insurance, taxes, customs fees, duties, and other charges related thereto, and you shall report and pay any and all such charges and hold CLS harmless therefrom. Prices quoted relate only to the System and do not include intellectual property, industrial property, or patent rights of any kind. Corning Life Sciences reserves the right to increase prices with thirty (30) days advance notice.
2. Shipment and Title. The applicable delivery term for the System is Ex Works (Corning’s designated facility in the United States).  Freight and associated duties incurred by CLS in shipping the goods shall be invoiced to you.  Title to the System shall pass upon delivery of the System in accordance with the foregoing Incoterm.
3. Security Agreement. These terms and conditions shall be considered a security agreement by which you grant to CLS a security interest in the System sold pending payment in full. You hereby grant to CLS a limited power of attorney solely for the purpose of executing a financing statement or other certificate or instrument and filing the same with the appropriate official to perfect CLS’s security interest. You hereby grant to CLS a purchase money security interest in the System delivered to secure the purchase price until CLS is paid in full.
4. Termination or Change. You may not terminate, suspend performance, reschedule or cancel delivery or issue a “hold” order under this Agreement in whole or in part, without CLS’s prior written consent.
5. Payment Terms. Unless otherwise indicated on the face of this order acknowledgement, you shall pay the invoiced amount within thirty (30) days from the date of CLS’s invoice. CLS may exercise an option to assess an interest charge of up to 2.5% p.a. above the current prime rate quoted by Citibank, N.A. in New York City, New York (but not to exceed the maximum lawful rate). Unless otherwise agreed, prices shall be quoted and invoices shall be paid in US currency.
6. Taxes. Any tax or related charge that CLS shall be required to pay to or collect for any government in connection with this Agreement, including, without limitation VAT, sales tax or use tax (though excluding tax incurred based on the net income of CLS) will be billed to you and paid by you.
7. Product Warranty. CLS warrants to you only that the System is free of defects in material and when delivered to you will conform to specifications published by CLS. The foregoing warranty is valid for a period of 12 months from the date of shipment. In the event that the System shipped by CLS does not conform to the foregoing warranty, CLS will, at its option, repair the nonconforming System, provide a free replacement, or credit the applicable purchase price to you. One of these alternatives shall be your sole and exclusive remedy in the event of delivery of a non-conforming System and CLS shall not be liable to you or any other party for any other damages, whether directly or indirectly incurred. Customer shall provide Corning and its designated representatives reasonable access to the System in order to conduct any required repairs.  The warranty and remedies provided in this paragraph shall apply to the exclusion of any other warranties (express or implied, including the warranties of merchantability and fitness for a particular purpose) or remedies that might otherwise be available under applicable law. No warranty or representation or guaranty is made by CLS as a result of the delivery of any sample, prototype, product information sheet, sale or marketing material, custom, trade practice, or statement by a representative of CLS.   The warranties set forth in this Section are conditioned upon and may only be made if  (a) the System has not been moved from the specific location where the System was initially installed and (b) you have inspected, accepted, handled, stored, released, serviced, used, and otherwise cared for the System in accordance with its instruction manual, prevailing industry standards, and applicable law.   CLS reserves the right to make technical modifications to the System to the extent such changes do not alter the function and use of the System in any material respect. As a result, technical specifications, dimensions and weight may differ from previously provided specifications or other documentation upon delivery and such differences shall not be deemed a breach or used as a basis for a claim against CLS. 
8. Limitation of Liability. In no event will CLS be liable to you or any other party, under any circumstances, for any special, consequential, indirect or punitive damages such as loss of capital, loss of use, substitute performance, loss of production, loss of profits, loss of business opportunity, or any other claims for damages, even if such losses or damages are reasonably foreseeable. CLS’ maximum liability for all damages arising hereunder or relating to the purchase or sale of the System, regardless of the cause of action or the basis or type of liability, is limited to an amount not to exceed the purchase price for the System paid by Buyer to CLS.
9. Intellectual Property. With respect to intellectual property and industrial property matters, CLS’s sole and exclusive liability is to indemnify you only against valid claims based upon infringement of validly issued U.S. patents and then only with respect to the System and only in the form in which sold by CLS. CLS’s sole obligation under this indemnification shall be the assumption of the defense of any such suit brought against you. CLS shall be given exclusive control of the defense of such claim, including settlement. CLS’s total liability hereunder shall be limited to its out-of-pocket costs up to, but not exceeding, the amount paid by you as the purchase price for the goods sold hereunder. You shall not (and shall not cause any third party to) analyze, disassemble, decompile, test, reverse-engineer or otherwise deconstruct the System, unless specifically agreed to by CLS in writing.
10. Software.  You expressly agree that the use of the System is subject to the end user license agreement set forth at [_________], and you hereby agree to be bound by and comply with the terms of such end user license agreement.
11. Export Control. You acknowledge that the System sold by CLS are subject to export control laws and regulations of the United States of America. CLS will have no obligation to sell or deliver the System until you have obtained all required export authorizations, if required. You agree that you will not use, distribute, transfer, or transmit the System except in compliance with United States laws and regulations and the applicable laws and regulations of any other jurisdiction.
12. Government Subcontract. If this contract is a subcontract under a United States government prime contract, CLS accepts only those terms and conditions that are required to be included in subcontracts entered into by you with respect to such United States government prime contract and no others. CLS accepts no terms or conditions with respect to adjustment of price, patent warranty or licenses, warranty, limitation of your liability, or special tooling except as appear herein or where the subject of a separate letter agreement that has been duly executed by an authorized officer of CLS.
13. Force Majeure.  If by reason of fire, earthquake, flood, explosion, accident, strike, slow-down, lock-out or other difference with or inability to secure workmen, lack of material, lack of facilities, equipment failure, Act of God, act of any public enemy, war, terrorism, voluntary or involuntary compliance with any valid or invalid order, regulation, law or request or recommendation of any government agency or authority, lack of transportation facilities, pandemic, disease outbreak, or other cause beyond the reasonable control of CLS whether or not of the kind hereinbefore specified, CLS is delayed in performing any of its obligations such delay shall be excused during the continuance and to the extent of such cause.
14. Choice of Law. These terms and transactions contemplated hereunder shall be governed by the laws of the State of New York, without regard to its conflicts of laws principles.