These Terms and Conditions of Purchase (the “Terms”) govern the purchase of the Nuclide, as defined in the Product Data Sheet. SHINE hereby objects to any additional or different terms provided by the company listed in the Order Form (the “Company”) or otherwise contained in any of Company’s requests, purchase orders, or other forms, or in any other correspondence from Company. These Terms, as supplemented by the Product Data Sheet, Order Form, and Pricing Term Sheet (collectively, the “Agreement”), shall constitute the entire agreement between the parties on the subject of purchases of the Nuclide by Company from SHINE, superseding all prior written and oral communications and negotiations. In consideration of the foregoing premises and the mutual covenants set forth below, and for other good and valuable consideration, the receipt of which is hereby acknowledged, Company and SHINE hereby agree as follows:
SHINE will provide Company with the Order Quantity of the Nuclide at the applicable price in the then-current Pricing Term Sheet after SHINE’s acceptance of a properly completed Order Form. The Nuclide will be made available per the Freight Terms in the Pricing Term Sheet, and if no such Freight Terms are supplied, the Nuclide will be made available DAP (Incoterms 2020) at Company’s facility identified in the Order Form. Company will pay or otherwise reimburse SHINE for all shipping costs. Following receipt of the Nuclide, Company shall use the Nuclide in compliance with all applicable laws and regulations and will not redistribute the Nuclide to any countries on the list of embargoed destinations provided in 10 CFR Part 110.28 or otherwise designated as an embargoed or restricted destination by an agency of the U.S. Government (including by not limited to on the Federal Register). Company represents and warrants that it is not on such lists of embargoed destinations. Company shall keep complete, accurate and authentic accounts, notes, data and records of the use of the Nuclide. Company’s exclusive remedy for any failure by SHINE to supply the Order Quantity of the Nuclide will be (if applicable), at SHINE’s discretion, for SHINE to refund Company’s payment or replace the Nuclide.
SHINE hereby grants to Company a limited, non-exclusive right to use the Nuclide in compliance with these Terms and the Agreement.
Any information disclosed or exchanged in connection with this Agreement, including pricing, is confidential and will be governed by the existing NDA (if any) between the parties, which remains in full force and effect. If no such NDA exists, the Company will still keep any such information confidential and protect it with the same degree of care with which it protects its own confidential information.
As between the parties, SHINE shall retain all right, title and interest in and to SHINE’s process for producing the Nuclide, including all intellectual property rights therein (“Company Background IP”). Any new intellectual property conceived, made, discovered, written, or created pursuant to this Agreement or in the production of the Nuclide do and will belong to SHINE. Nothing in the Agreement shall be construed as giving Company any license or other right under any patent, patent application, trademark, copyright, or other intellectual property right owned by SHINE or any of its affiliates. Company will take no action that does or may reasonably jeopardize or diminish he value of any of SHINE’s intellectual property.
THE NUCLIDE IS BEING SUPPLIED TO COMPANY “AS IS” AND WITH NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. SHINE MAKES NO REPRESENTATIONS THAT THE USE OF THE NUCLIDE WILL NOT INFRINGE ANY PATENT OR OTHER PROPRIETARY RIGHTS OF ANY THIRD PARTIES.
UNDER NO CIRCUMSTANCES WHATSOEVER WILL SHINE BE LIABLE TO COMPANY IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, INDEMNITY, BREACH OF STATUTORY DUTY, OR UNDER ANY OTHER THEORY OF LIABILITY FOR, IN THE AGGREGATE, AMOUNTS EXCEETING THE TOTAL AMOUNT ACTUALLY PAID BY COMPANY TO SHINE FOR NUCLIDE PURSUANT TO THE APPLICABLE ORDER FORM. UNDER NO CIRCUMSTANCES WHATSOEVER WILL SHINE BE LIABLE TO COMPANY FOR ANY DIRECT OR INDIRECT DELAY, PENALTY, LOSS OF PROFITS, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS, LOSS OF GOODWILL, OR USE OF AND/OR COSTS OF ANY SUBSTITUTE SERVICES OR NUCLIDE, ANY RELIANCE DAMAGES, OR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER OR NOT SHINE HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES OR LOSSES.
Company represents and warrants that it will not use, release, distribute, market, or sell any Nuclide (alone or as part of any product) if (i) Company has determined that the Nuclide is defective in any way or otherwise does not meet the Technical Data or Release Parameters in the Product Data Sheet or Certificate of Analysis, as applicable, or (ii) Company does not hold all necessary approvals, licenses, and permits to have, use, release, distribute, market, or sell the Nuclide (alone or as part of any product) or is not in compliance with such approvals, licenses, permits, applicable law, or this Agreement. Company further represents that it is authorized to receive and possess the Nuclide.
Company hereby agrees to indemnify, defend and hold SHINE and its affiliates, and its and their respective officers, directors, employees and agents harmless from and against any and all damages, demands, losses, claim, injuries, liabilities, costs or expenses (including attorney’s fees) suffered or incurred by any of them as a result of any claim, suit, demand, action or other proceeding brought or made by any third party to the extent arising out of or resulting from (i) any manufacture, packaging, development, commercialization, processing, modification, marketing, promotion, distribution, sale, or use of or exposure to the Nuclide, including Company’s products that incorporate the Nuclide, including without limitation product liability and strict liability claims in connection with the Nuclide, (ii) any negligence or willful misconduct of or by Company, its affiliates ,or its or their respective subcontractors, employees, or agents, (iii) Company’s breach of any of its obligations or representations and warranties under this Agreement, (iv) the content of Company’s instructions, to the extent they are followed by SHINE (including if they violate applicable laws), (v) a violation of or non-compliance with any applicable laws or any applicable permit or license by Company, its affiliates, or its or their respective subcontractors, employees, or agents in connection with this Agreement or the Nuclide, (vi) the administration of the Nuclide, either alone or as a component of a product, to humans, (vii) the infringement or alleged infringement of any patents, trade secrets, copyrights, trademarks, trade names, or other proprietary or contractual rights of any third party arising from Company’s purchase, use, or sale of the Nuclide, including products that incorporate the Nuclide.
This Agreement is governed by and shall be construed and interpreted in accordance with the laws of the State of Wisconsin, U.S.A., without giving effect to its conflicts of laws principles or rules of construction concerning the drafter hereof. The 1980 United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. All disputes arising in connection with this Agreement, which cannot be settled amicably through good faith negotiation of the parties, will be submitted to the courts in Rock County, Wisoncsin. Company hereby consents to the exclusive jurisdiction of the courts in Rock County, Wisconsin, for any legal or equitable action or proceeding arising out of or in connection with the Agreement. Company specifically waives any and all objections to venue in such courts.
The relationship of the parties is that of independent contractors, and neither party shall incur any debts or make any commitments for the other party. Nothing in this Agreement is intended to create or shall be construed as creating between the parties the relationship of joint ventures, co-partners, employer/employee, or principal and agent. Neither party shall have any responsibility for the hiring, termination, or compensation of the other party’s employees, agents, or contractors or for any employee benefits of any such employee, agent, or contractor. This Agreement shall not confer any rights or remedies upon any person or entity other than the parties named herein and their respective successors and permitted assigns.
If any provision of this Agreement is declared void or unenforceable, such provision shall be deemed excluded or modified to the extent necessary to allow enforcement hereof, and all other provisions of this Agreement shall remain in full force and effect.
Failure by SHINE to insist upon strict compliance with any term of this Agreement in any one or more instances shall not be deemed to be a waiver of its rights to insist upon such strict compliance with respect to any subsequent instances. Any waiver of breach, right, or remedy must be in writing and signed by an authorized representative of SHINE in order to be valid. The captions and headers in this Agreement are for convenience only and are not to be interpreted or construed as a substantive part of this Agreement.
