General Terms and Conditions
IMPORTANT: THIS AGREEMENT IS A CONTRACT BETWEEN YOU AND PROTIFI™, LLC (hereafter referred to as “ProtiFi,” collectively referred to as the “Parties”). PLEASE READ THIS LICENSE CAREFULLY BEFORE BUYING OR USING ProtiFi PRODUCTS. ALL SALES ARE SUBJECT TO AND EXPRESSLY CONDITIONED UPON THE TERMS AND CONDITIONS CONTAINED HEREIN, AND UPON THE BUYER’S ASSENT THERETO. SALES INCLUDE THE REQUEST AND ACCEPTANCE OF SAMPLES. NO VARIATION OF THESE TERMS AND CONDITIONS WILL BE BINDING UPON PROTIFI UNLESS AGREED TO IN WRITING AND SIGNED BY AN OFFICER OR OTHER AUTHORIZED REPRESENTATIVE OF PROTIFI.
Tryp-N, S-Trap, Si-Trap, SimpliFi and ProtiFi and their respective logos (including and not limited to “Bringing precision omics to life,” “Innovative omics solutions”) are trademarks of ProtiFi, LLC and may not be used without the express written permission of ProtiFi. All other brands, product names, company names, trademarks, and service marks are the properties of their respective owners.
Restrictions and Liabilities
This document is provided “as is.” ProtiFi assumes no responsibility for any typographical, technical, or other inaccuracies in this document or other documents, protocols, manuals, other written material or materials in other formats such as videos. ProtiFi reserves the right to periodically change information that is contained in this and other documents; however, ProtiFi makes no commitment to provide any such changes, updates, enhancements, or other additions to this document to you in a timely manner or at all.
OTHER THAN THE EXPRESS LIMITED WARRANTY SET FORTH IN THIS AGREEMENT, PROTIFI MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR COVENANTS, EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, MERCHANTABILITY, DURABILITY, TITLE, OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF ANY PRODUCT REFERENCED HEREIN OR PERFORMANCE OF ANY SERVICES REFERENCED HEREIN). PROTIFI SHALL NOT IN ANY EVENT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCTS, EVEN IF PROTIFI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, LOSS OF PRODUCTS OF BUYER OR OTHER USE OR ANY LIABILITY OF BUYER TO A THIRD PARTY ON ACCOUNT OF SUCH LOSS, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH PRODUCT INCLUDING PERSONAL INJURY OR PROPERTY DAMAGE FOR ANY REASON. All claims must be brought within one (1) year of shipment, regardless of their nature.
This document might contain references to third-party sources of information, hardware or software, products or services and/or third-party websites (collectively the “Third-Party Information”). ProtiFi does not control, and is not responsible for, any Third-Party Information, including, without limitation the content, accuracy, copyright compliance, compatibility, performance, trustworthiness, legality, decency, links, or any other aspect of Third-Party Information. The inclusion of Third-Party Information in this document does not imply endorsement by ProtiFi of the Third-Party Information or the third party in any way. ProtiFi does not in any way guarantee or represent that you will obtain satisfactory results from using ProtiFi Products as described in ProtiFi documentation. The only warranties provided to you are Limited Warranty of this document. You assume all risk in connection with your use of ProtiFi Products and/or Services.
Conditions of Use
ProtiFi Products and Services are for life science research use only and subject to the use restrictions as contained in this Agreement. You are responsible for understanding and performing the protocols or instructions described within. ProtiFi does not guarantee any results you may achieve. These protocols are provided as ProtiFi ‘s recommendations based on its use and experience.
ProtiFi Products are manufactured in the United States of America.
© 2020 ProtiFi, LLC. All rights reserved. This document and all other ProtiFi materials may not be reproduced, distributed, modified or publicly displayed without the express written permission of ProtiFi, LLC.
Version 2.0: June 2020
Limited Use License
By purchasing ProtiFi Products, you agree that this Agreement is a legally binding and valid contract between you and ProtiFi, and you agree to be bound by it. You agree to abide by all intellectual property laws and all terms and conditions of this Agreement. This Agreement and the terms and conditions contained herein constitute the entire agreement between the Parties and supersedes all communications, negotiations, arrangements and agreements, whether oral or written, between the Parties with respect to the subject matter of this Agreement. Your use of ProtiFi Products and/or Services indicates your acceptance of this Agreement in its entirety. This Agreement applies to all past, current and future Products and/or Services. ProtiFi reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify this Agreement and to impose new or additional rules, policies, terms, or conditions on the use of ProtiFi Products and/or Services. Such updates, revisions, supplements, modifications, and additional rules, policies, terms, and conditions (collectively referred to in this Agreement as “Additional Terms”) will be effective immediately and incorporated into this Agreement. Your continued use of ProtiFi Products and/or Services following any Additional Terms will be deemed to constitute your acceptance of any and all such Additional Terms. All Additional Terms are hereby incorporated into this Agreement by this reference. Use of ProtiFi Products and/or Services signifies acceptance of this Agreement inclusive of any Additional Terms. The purchase of Products and/or Services from ProtiFi, LLC, its affiliates, licensees and licensors, or its authorized resellers and distributors (collectively hereafter, “ProtiFi”) conveys to the Customer a non-exclusive, limited, non-transferable license to use the purchased amount of Products and components of Products and/or Services only in internal research conducted by the Customer (whether the Customer is an academic or for-profit entity, whether or not for cash or other consideration) in accordance with the terms of this agreement.
The Customer shall use Products purchased from ProtiFi in a responsible, safe and legal manner in accordance with all applicable Laws, Regulations, Ordinances, Statutes, Codes, Protocols or Guidelines, whether they be of international, national, state, regional, local or institutional origin and not for any unlawful or prohibited purpose or in any illegal manner, for any illegal purpose, or in any manner inconsistent with or in violation of this Agreement. Products, their components or their derivatives may not be used for therapeutic or prophylactic purposes in humans or animals. ProtiFi products and Services are intended primarily for laboratory research purposes and are not to be used for any other purposes, including but not limited to, in vitro diagnostic purposes, in foods, drugs, medical devices or cosmetics for humans or animals or for commercial purposes. The Customer acknowledges that the products have not been tested by ProtiFi for safety and efficacy in food, drug, medical device, cosmetic, commercial or any other use, unless otherwise stated in writing. The Customer expressly represents and warrants to ProtiFi that the Customer will properly test, use, manufacture and market any products purchased from ProtiFi and/or materials produced with products purchased from ProtiFi in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with all applicable laws and regulations, now and hereinafter enacted. The Customer further warrants to ProtiFi that any material produced with products from Seller shall not be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act and shall not be materials which may not, under Sections 404, 505, or 512 of the Act, be introduced into interstate commerce. Customer realizes that, since ProtiFi’s products are, unless otherwise stated, intended primarily for research purposes, they may not be on the Toxic Substances Control Act (TSCA) inventory. Customer assumes responsibility to assure that the products purchased from ProtiFi are approved for use under TSCA, if applicable. Customer has the responsibility to verify the hazards and to conduct any further research necessary to learn the hazards involved in using products purchased from ProtiFi. Customer also has the duty to warn Customer’s customers and any auxiliary personnel (such as freight handlers, etc.) of any risks involved in using or handling the products. Customer agrees to comply with instructions, if any, furnished by ProtiFi relating to the use of the products and to not misuse the products in any manner. Customer agrees that neither Customer, nor Customer’s employees, independent contractors nor other agents shall not (a) reverse engineer, decompile or otherwise disassemble or otherwise alter or modify or recreate ProtiFi Products from ProtiFi Products or services themselves or from any other information available to them, public or not; (b) otherwise use any of the information or training or materials ProtiFi provides to support, maintain or otherwise service a third party’s products or services. The Customer shall not create or attempt to create a same or similar product or service, give, sell or in any way transfer ProtiFi Products to a third party. The Customer shall use Products specifically in accordance with the Protocols, documentation and usage instructions provided with Products and available online at www.protifi.com/pages/resources. The Customer is responsible for understanding and performing the Product Protocols. ProtiFi does not guarantee any results you may achieve; protocols and instruction and information are provided as ProtiFi’s recommendations based on its experience, testing and results and are subject to change. No other right, express or implied, is conveyed by the sale of Products. In particular, no right to make, have made, offer to sell, or sell the Products is implied by the sale or purchase of the Products. The Customer cannot sell or otherwise transfer (a) Products, (b) their components, or (c) derivatives made of Products or their components to a third party or otherwise use Products or their components or materials or derivatives of Products or components for Commercial Purposes including and not limited to resale of Product or their components, whether or not Products or their components are resold for use in research without ProtiFi’s prior written consent. The product use license granted herein does not imply or convey the right to use the Products or Services in combination with any other product(s) whose manufacture, sale, or use is covered by any patent. Any use of Products or Services other than for internal research requires a license from ProtiFi. Further information on purchasing licenses of ProtiFi intellectual property may be obtained by contacting the Business Development Department, ProtiFi, LLC, PO Box 2317, Huntington NY 11743, Email: info@ProtiFi.com. Customer acknowledges that Products may be subject to U.S. export control laws and regulations. Customer represents and warrants that it is the ultimate end-user of the Products, and further represents and warrants that it will not knowingly sell, export, re- export, transfer, divert, or otherwise dispose of Products (including other materials or goods derived from or based on the Products) subject to U.S. export control laws or regulations to any other destination, entity, or person without the prior authorization of any relevant U.S. federal government agency and ProtiFi.
Customer acknowledges that the Products provided to Customer embody Intellectual Property deemed to be of significant value to ProtiFi, its licensees and licensors, and that such intellectual property may be protected by the law of patents, copyrights, trade secrets, and other laws and forms of protection. Customer acknowledges and agrees that neither this Agreement nor the purchase of the Products by Customer shall be construed as a transfer of any title or the grant of any rights in and to the Intellectual Property embodied in the Products owned, developed or licensed by ProtiFi. Products may be patented, patent pending or trade secret. In this Agreement, “Intellectual Property” means all copyrights and copyrightable materials in any form, inventions patented, patentable and unpatented, trade secrets, research, formulas, formulations, methods, techniques, patents and patent applications and all their content regardless of country or status of publication, sequences of protein and nucleic acids, designs, registered or not, research results tangible or not, design rights, database rights and copyrights, software and code, know-how and show-how, internet names, domain names, email addresses, customer identities and databases, business names, trade- or service marks whether registered or unregistered, brand names, trade names, trade dress(es), other intellectual property rights, logos, color schemes and other source identifiers (whether registered or not) and/or slogans used by ProtiFi in connection with its Products from time to time and the goodwill therein and any rights or forms of protection of a similar nature and having equivalent or similar effect to any of them which may relate to the Products provided under this Agreement. As described herein, Customer has a limited license to use the Products containing ProtiFi Intellectual Property subject to the use restrictions described herein. Customer hereby grants to ProtiFi a perpetual, royalty-free, fully paid up, non-exclusive, worldwide, unlimited license to use for any purpose any and all improvements made by Customer to the Intellectual Property embodied in the Products, in particular derivatives and modifications of device or product or formula or protein form, function and sequence. ProtiFi has no knowledge that the use or sale of the products or services delivered, themselves or in combination with other products or services, or in the operation of any process, under this agreement is infringement of any patent claims covering the product and services in any country. ProtiFi does not warrant that the use or sale of its Products or services, themselves or in combination with other products or services, or in the operation of any process, under this agreement will not infringe on any patent claims covering the product and services in any country.
The Customer shall indemnify, hold harmless, and defend ProtiFi, its subsidiaries and affiliates and each of its respective current and future employees, agents, officers, directors, owners, partners, principals, representatives, managers and distributors against any and all claims, proceedings, causes of action, suits, losses, liabilities, demands, costs and expenses (including and not limited to attorney’s fees) resulting from or in any way connected with your use of ProtiFi Products and/or for any breach or violation of the terms of this Agreement. In no event (including, without limitation, in the event of negligence) shall ProtiFi or its current and future employees, agents, officers, directors, owners, partners, principals, representatives, managers and distributors be liable for any consequential, compensatory, incidental, indirect, special, punitive or other damages whatsoever (including, without limitation, damages for injury, damages to business, business interruption, loss of profits, loss of use, loss of information or data, pecuniary loss, loss of revenues or goodwill of any party hereto, or for any special, consequential, or incidental damages), in connection with or arising out of or related to this Agreement, Products or services, or the use or inability to use Products or services or the furnishing, performance or use of any other matters hereunder whether based upon warranty, contract, tort or any other theory including and not limited to breach of warranty, breach of contract, repudiation of contract, termination, negligence, or otherwise, even if it shall have been advised of the possibility of such damages. ProtiFi’s entire liability, without exception, is limited to the customers’ reimbursement of the purchase price of the Products (maximum being the lesser of the amount paid by you and the suggested retail price as listed by ProtiFi) in exchange for the return of the Products, their Components, their Derivatives and all protocols, usage instructions, papers and manuals, and all materials that constitute a transfer of limited use license from the customer back to ProtiFi.
Except as expressly stated in writing, ProtiFi makes no representation or warranties in respect of Products and expressly excludes all other warranties, expressed or implied, oral or written, including, without limitation, any implied warranties of merchantable quality or fitness for a particular purpose. ProtiFi reserves the right to make changes in design, production, manufacture, or characteristics of Products or to improve Products at any time and in any way, without incurring any obligations to replace or modify any Products previously sold. Deviations from the product specification that impair the use of fitness of Products (hereafter referred to as “material defects”) may be present. Should you encounter a material defect, you shall immediately notify ProtiFi in writing, specifying how the material defect manifests itself, what effect it has and under what circumstances it occurs; emailing email@example.com is the preferred method of communication. Having received notification of the material defect and having established that a material defect actually exists, ProtiFi may, at its sole option and discretion, remedy such material defect. You acknowledge and agree that any Feedback you may provide to ProtiFi shall be ProtiFi’s sole and exclusive property, and you hereby irrevocably assign to ProtiFi all of your rights, title and interests in and to all such Feedback. “Feedback” includes, without limitation, suggestions, comments, ideas or know how in direct or indirect connection with your testing, evaluation and/or use (whether presented orally, in written form or otherwise). ProtiFi makes no warranty of any kind or nature, neither express nor implied, for any Products or part of Products that are not manufactured by ProtiFi. Any Products, or other such part or accessories to Products shall have the warranty, if any, that is offered and granted by the manufacturer of such other products and accessories.
Orders, product form, returns
Orders arising hereunder may be changed or amended only by written agreement signed by both Customer and ProtiFi, setting forth the particular changes to be made and the effect, if any, of such changes on the price and time of delivery. Customer may not cancel this order unless such cancellation is expressly agreed to in writing by ProtiFi. In such event, ProtiFi will advise Customer of the total charge for such cancellation, and Customer agrees to pay such charges, including, but not limited to, storage and shipment costs, costs of producing non-standard materials, costs of purchasing non-returnable materials, cancellation costs imposed on ProtiFi by its suppliers, and any other cost resulting from cancellation of this order by Customer which is permitted by ProtiFi. Certification of such costs by ProtiFi's independent public accountants shall be conclusive on the parties hereto. Customer acknowledges and agrees that ProtiFi may fill Customer’s order with any number of units of Products. Such units may be more units than Customer ordered. Customer will not be charged extra for any adjustments made by ProtiFi. In the event that activity is significantly different between lots, ProtiFi reserves the right to fill the order with that number of units which is sufficient to fill Customer’s order and such adjustments shall not constitute a breach of the warranty herein. Products may not be returned for credit except with ProtiFi’s permission, and then only in strict compliance with ProtiFi’s return shipment instructions. Any returned items may be subject to a 20% processing fee and must be returned within 90 days of purchase.
Delivery, claims, delays
All sales are EXW from ProtiFi’s shipping point unless otherwise noted. If Shipping and Handling Charges are quoted or invoiced, they will include charges in addition to actual freight costs. Delivery of the Products to the carrier at ProtiFi’s shipping point shall constitute delivery to Customer and Customer shall bear all risk of loss or damage in transit. The general method of shipment for each item is provided on ProtiFi’s website. However, ProtiFi reserves the right, in its discretion, to determine the exact method of shipment. ProtiFi 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 Customer of Customer’s obligations to accept remaining deliveries. Immediately upon Customer’s receipt of any Products shipped hereunder, Customer shall inspect the same and shall notify ProtiFi in writing of any claims for shortages, defects or damages and shall hold the Products for ProtiFi’s written instructions concerning disposition. If Customer shall fail to so notify ProtiFi within five days after Customer has received the Products, such Products shall conclusively be deemed to conform to the terms and conditions hereof and to have been irrevocably accepted by the Customer. ProtiFi 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 including, without limitation, unsuccessful reactions, act of Customer, embargo or other governmental act, regulation or request affecting the conduct of ProtiFi’s business, fire, explosion, accident, theft, vandalism, riot, acts of war, strikes or other labor difficulties, lightning, flood, windstorm or other acts of God, delay in transportation, or inability to obtain necessary labor, fuel, materials, supplies or power at current prices.
Terms of sale are net 30 days of date of invoice, unless otherwise stated. If the financial condition of Customer results in the insecurity of ProtiFi, in its sole and unfettered discretion, as to the ultimate collectability of the purchase price, ProtiFi may, without notice to Customer, delay or postpone the delivery of the products; and ProtiFi, at its option, is authorized to change the terms of payment to payment in full or in part in advance of shipment of the entire undelivered balance of said products. In the event of default by Customer in the payment of the purchase price or otherwise, of this or any other order, ProtiFi, at its option, without prejudice to any other of ProtiFi’s lawful remedies, may defer delivery, cancel this Contract, or sell any undelivered products on hand for the account of Customer and apply such proceeds as a credit, without set-off or deduction of any kind, against the contract purchase price, and Customer agrees to pay the balance then due to ProtiFi on demand. Customer agrees to pay all costs, including, but not limited to, reasonable attorney and accounting fees and other expenses of collection resulting from any default by Customer in any of the terms hereof. If payment is not made when due, ProtiFi is entitled to charge at any time from the invoice date interest of 1.5% per month (18% per year) on the amount outstanding. In addition, Customer shall pay ProtiFi collection expenses in the amount of US$40.00 for the first and any subsequent payment reminder. ProtiFi also reserves the right to claim from the Customer compensation for any further damages including but not limited to collection agency or legal fees. Any use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between ProtiFi and Customer shall be paid by Customer in addition to the prices quoted or invoiced. In the event ProtiFi is required to pay any such tax, fee or charge, Customer shall reimburse ProtiFi therefore; or, in lieu of such payment, Customer shall provide ProtiFi at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge. Product prices are in US dollars unless otherwise stated and are subject to change. Shipment will be made promptly even if prices have been nominally increased. Price reductions will be automatically applied to your invoice.
Compliance with laws, regulations
ProtiFi certifies that to the best of its knowledge its products are produced in compliance with applicable requirements of the Fair Labor Standards Act, as amended, and the Occupational Safety and Health Standards Act of 1970 and regulations, rules and orders issued pursuant thereto.
At Customer’s request, ProtiFi may, at ProtiFi’s discretion, furnish technical assistance and information with respect to ProtiFi’s Products and/or services. PROTIFI MAKES NO WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, WITH RESPECT TO TECHNICAL ASSISTANCE OR INFORMATION PROVIDED BY PROTIFI OR PROTIFI’S PERSONNEL. ANY SUGGESTIONS BY PROTIFI REGARDING USE, SELECTION, APPLICATION OR SUITABILITY OF THE PRODUCTS SHALL NOT BE CONSTRUED AS AN EXPRESS WARRANTY UNLESS SPECIFICALLY DESIGNATED AS SUCH IN A WRITING SIGNED BY AN OFFICER OR OTHER AUTHORIZED REPRESENTATIVE OF PROTIFI.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York of the United States applicable therein, without regard to any choice of law principles. This Agreement may not be assigned or transferred by either party without the other party’s prior written consent. You hereby irrevocably attorn and submit to the non-exclusive jurisdiction of the courts of New York State in Nassau or Suffolk Counties. If any provision of this Agreement shall be held, considered or become invalid, unlawful, void or otherwise unenforceable, then that provision shall be deemed severable from this Agreement and not affect the validity and enforceability of any other provisions. Both Parties agree to replace the invalid provision with a valid provision, which most closely approximates to the commercial objective of the Parties. The same applies to eventual loopholes in this Agreement. No failure to exercise, nor any delay in exercising, on the part of ProtiFi, any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further exercise thereof or the exercise of any other right or remedy. The waiver by ProtiFi of any breach shall not be deemed a waiver of any subsequent breach of the same or any other term of this Agreement. ProtiFi’s failure to strictly enforce any term or condition of this order or to exercise any right arising hereunder shall not constitute a waiver of ProtiFi’s right to strictly enforce such terms or conditions or exercise such right thereafter. All rights and remedies under this order are cumulative and are in addition to any other rights and remedies ProtiFi may have at law or in equity. Any waiver of a default by Customer hereunder shall be in writing and shall not operate as a waiver of any other default or of the same default thereafter. This Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto, and their respective heirs, personal representatives, successors and assigns. The paragraph headings herein are for convenience only; they form no part of the terms and conditions and shall not affect their interpretation.