STANDARD CONDITIONS OF SALE 

             

  1. Acceptance of this Quotation: This Quotation (which includes these Standard Conditions of Sale) is an offer to sell which is not binding upon INNOVIVE until accepted by the Buyer. To accept this Quotation, Buyer must return a fully executed copy of the Quotation to INNOVIVE within thirty (30) days from the date on any Quotation document or order form. The contract shall consist of all the terms and conditions set forth herein, unless either party agrees in writing to other terms and conditions. The “Equipment” shall consist of those INNOVIVE items identified in the Quotation. Buyer agrees it will not use any third party caging with the Equipment.

  1. Delivery: INNOVIVE shall use commercially reasonable efforts to ship orders by the date agreed upon by the parties in the applicable order, but INNOVIVE SHALL NOT BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, INCIDENTAL, OR OTHERWISE, ARISING OUT OF ANY DELAY IN DELIVERY, INCLUDING FOR ANY ACTS OR OMISSIONS OF ANY THIRD-PARTY DELIVERY, FREIGHT, OR OTHER CARRIER.

  1. Spare Parts: The purchase price of the Equipment does not include any spare parts; however, upon request, INNOVIVE will furnish the Buyer with a list of any parts that can be stocked for maintenance purposes. Buyer may purchase spare parts from INNOVIVE at the prices listed on any product list given by INNOVIVE to Buyer. If Buyer orders spare parts, Buyer is solely responsible for payment of said spare parts.

  1. Equipment terms : Payment terms for Equipment shall be 50% with purchase order net seven (7) and 50% net thirty (30) days from date of invoice unless otherwise specified. All equipment deposits are not refundable.

  2. Taxes and Payments: Purchase orders submitted with payment terms between net thirty-one (31) days and net sixty (60) days will have a 3% finance charge applied; purchase orders submitted with payment terms between net sixty-one (61) days and net ninety (90) days will  have a 4.5% finance charge applied. ALL terms are subject to INNOVIVE’S credit  approval process, which INNOVIVE operates in its sole and absolute discretion. Buyer may, upon request, receive further details of INNOVIVE’s credit approval process, in INNOVIVE sole discretion. An interest charge of 2% per month (24% per year), or the  maximum allowable by law (whichever is less), will be added to all invoices ten (10)  days past due, prorated for the number of days beyond the due date. Interest will  continue to accrue on any outstanding balances until account is settled in full. Partial  payments will be applied to accrued interest prior to being applied to original  balance. Payment of any late charge will not cure or excuse any default by Buyer, and INNOVIVE’S acceptance of such late charge will not be deemed a waiver by  INNOVIVE of any default by Buyer. Buyer will be responsible for reasonable fees  incurred by INNOVIVE for collecting any overdue payments, including reasonable  attorney’s fees. Credit card orders will be charged an additional 3% convenience fee. For qualified returns of consumables shipped from INNOVIVE, there will be a 20% restocking fee applied. Consumables with less than 6 months shelf life or not in original packaging are not returnable.

  1. Safety Requirements: INNOVIVE will fully cooperate with the Buyer in the design, manufacture or procurement of additional safety features or devices which are deemed necessary under O.S.H.A. standards or any other statute, ordinance or governmental regulation. The price at which all such additional services and equipment shall be furnished by INNOVIVE will be at INNOVIVE’S standard rates or prices then in effect, or as mutually agreed to by INNOVIVE and the Buyer. The Buyer agrees, at its own cost and expense, to train all equipment users not trained by INNOVIVE to follow safe operating procedures and to understand and retain the information contained in the operating manuals, maintenance manuals and safety warning signs

  1. Permits: The Buyer shall be responsible for the procurement at its expense of any special permits required for the design, fabrication, testing, transport, installation or operation of the Equipment. INNOVIVE’s sale of the Equipment to Buyer is without any express or implied warranty that the Equipment will comply with any permitting regulations, requirements, or standards, unless otherwise noted herein or in a writing signed by INNOVIVE.

  1. Title and Access to the Equipment: Title to the Equipment shall pass from INNOVIVE to the Buyer: (i) for deliveries within the United States, at the point identified in the F.C.A. terms contained in this Quotation; or (ii) for deliveries outside of the United States, at the point identified in the F.C.A. (Incoterms 2000) terms contained in this Quotation. Prior to that time, the Buyer will be given reasonable access to the Equipment. INNOVIVE and Buyer agree that if Buyer makes or obtains goods which Buyer provides to INNOVIVE for incorporation into the Equipment (the “Incorporated Goods”), the risk of loss with respect to those Incorporated Goods shall remain at all times with Buyer. INNOVIVE hereby reserves a purchase money security interest in the Equipment sold and the proceeds thereof, in the amount of its purchase price. In the event of default by Buyer of any of its obligations to INNOVIVE, INNOVIVE shall have the right, in addition to any other remedies available to INNOVIVE at law or in equity, to repossess the Equipment sold hereunder without liability to Buyer. This security interest will be satisfied by payment in full.

  1. Warranties: INNOVIVE warrants that the Equipment shall conform, in all material respects, to the description and specifications found in this Quotation. The warranty period for equipment is five (5) years, including one (1) year labor, and begins on the date of shipment. THE EXPRESS WARRANTIES CONTAINED IN THIS QUOTATION ARE EXCLUSIVE AND GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, INNOVIVE EXCLUDES AND DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES. In order for the warranties contained in this Quotation to remain in effect, the Buyer must follow and demonstrate compliance with INNOVIVE’S and any of INNOVIVE’S suppliers recommended maintenance procedures. Any modification(s) made by the Buyer or the Buyer’s agent or contractor to the Equipment from its final accepted form, or any combination of the Equipment with parts not authorized by INNOVIVE, without prior written approval from INNOVIVE, will void any warranty pertaining to the Equipment. Equipment sold by INNOVIVE is designed SPECIFICALLY for use with Innovive caging. Equipment warranty is void if operated with caging other than that produced by Innovive.

  1. Remedies: INNOVIVE shall repair or, at its option, replace any INNOVIVE designed and manufactured item which, within five (5) years of the date of shipment, proves defective in design or workmanship. All claims relating to defects in the Equipment or in any of its parts must be submitted to INNOVIVE in writing within five (5) years of shipment. If the defective item can be sent to INNOVIVE, INNOVIVE’S responsibility to repair or replace shall be contingent upon the Buyer returning the defective item to INNOVIVE. The Buyer will be invoiced for the replacement part, and credit will be issued upon the return of the defective part to INNOVIVE. INNOVIVE’S responsibility and liability to the Buyer is limited to the repair and replacement remedy set forth in this section, provided, however, that if the cost of repair or replacement exceeds the quoted price of the Equipment, INNOVIVE may, at its option, refund the quoted price to the Buyer. These are the Buyer's sole and  exclusive remedies. If these limited remedies are held to have failed of their essential  purpose, or are otherwise held invalid or inapplicable, INNOVIVE’S liability is  limited to the purchase price of the Equipment, regardless of the legal theory of any  claim, except in cases of gross negligence. Further, INNOVIVE’s liability and obligations under this section are conditioned on Buyer’s compliance with all other sections of this Agreement, including but not limited to, Section IX.

  1. Non-Warranty Service Agreement: Service calls that are not related to warranty work will be provided under INNOVIVE’S current service rates.

  1. Third-Party Indemnification: INNOVIVE agrees, at its own cost and expense, to defend and hold the Buyer harmless from any third party claim which is caused by or arises out of a final judgment related to INNOVIVE’s infringement of said third party’s intellectual property rights in the performance of INNOVIVE’s obligations under this Agreement. Buyer shall give INNOVIVE prior written notice of any claim brought against Buyer that could result in a claim subject to this Section XII. INNOVIVE may, in its sole discretion, assume defense of any such claim. The Buyer agrees, at its own cost and expense, to defend and hold INNOVIVE harmless from any third party claim which is caused by or arises out of the intentional malfeasance or negligent acts or omissions of the Buyer related to Buyer’s purchase and use of the Equipment or any other act or omission arising out of or related to this Agreement.

 

  1. Limitation of Liability: TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, EXCEPT FOR DAMAGES ARISING FROM BODILY INJURY CAUSED DIRECTLY AND SOLELY BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF INNOVIVE: (I) IN NO EVENT SHALL INNOVIVE OR ANY OF ITS  REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH ANY EQUIPMENT INNOVIVE HAS SOLD OR OTHERWISE PROVIDED TO BUYER OR SELLS OR OTHERWISE PROVIDES TO BUYER IN THE FUTURE OR BY THE PERFORMANCE OR FAILURE OF THE EQUIPMENT TO PERFORM, OR BY ANY OTHER ACT OR OMISSION, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT INNOVIVE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED AND, (II) IN NO EVENT SHALL INNOVIVE’S TOTAL CUMULATIVE LIABILITY TO BUYER (OR ANY CUSTOMER OF BUYER) FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO ANY AGREEMENT BETWEEN BUYER AND INNOVIVE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED AN AMOUNT EQUAL TO THE AGGREGATE AMOUNT PREVIOUSLY PAID TO INNOVIVE BY BUYER PRIOR TO THE EVENT GIVING RISE TO LIABILITY.

  1. Integration and Confidentiality: This Quotation sets forth the entire understanding and agreement between INNOVIVE and the Buyer relating to the Equipment (except for any non-disclosure agreement that may have been entered into by the parties, such nondisclosure agreement to remain in effect in accordance with its terms, and such terms shall govern the exchange and protection of confidential information between the parties hereunder.). If the parties have not previously entered into a non-disclosure agreement applicable to this Quotation, then the Buyer agrees, with respect to any INNOVIVE Confidential Information (defined below): (i) not to disclose such INNOVIVE Confidential Information to any third party without INNOVIVE’S prior written consent: and (ii) not to use any such INNOVIVE Confidential Information for any purpose other than to perform the Buyer’s obligations hereunder and/or to obtain the benefits contemplated by the parties hereunder. For purposes hereof, “INNOVIVE Confidential Information” shall mean any information provided by INNOVIVE to the Buyer hereunder that is identified by INNOVIVE as being confidential either prior to or at the time of disclosure or that, should by its nature, be reasonably considered confidential or proprietary. No modification, extension, or waiver of these documents or any provision hereof shall be binding unless mutually agreed to in writing. Buyer's purchase order, or other ordering document, is solely for the purpose of requesting products, delivery dates, quantities and shipping destinations. Any provision of Buyer's purchase order (or other documents or communications) that is in any way inconsistent with or in addition to this Agreement shall not be binding on INNOVIVE and are hereby expressly rejected by INNOVIVE.

  1. Force Majeure: The obligations of INNOVIVE and the Buyer to perform, except for payment obligations, shall be excused during each period of delay caused by matters which are beyond the reasonable control of the party obligated to perform, such as strikes, shortages of raw materials, government orders, or acts of God, and the time for performance shall be extended for such period; provided that if an event of force majeure occurs, the party who is claiming to be excused from performance shall give prompt notice of the event of force majeure to the other party; and provided further that if an event of force majeure occurs which prevents performance of the contract and continues for a period  of more than one hundred twenty (120) days, either party may, at its option, cancel  the contract without further liability to the other party. Payments, if any by BUYER  to INNOVIVE will be refunded in full within thirty (30) days of cancellation.

  1. Headings: All section and paragraph titles and captions are asserted for ease of reference only and are without contractual significance or effect.

  1. Severability: If any provision of this Quotation is held unenforceable or invalid or in conflict with the law of any competent jurisdiction, such provision will be, to the extent practicable, conformed to achieve the original intent of the parties and the remaining portions of this Quotation shall remain in full force and effect.

  2. Intellectual Property: INNOVIVE retains all right, title and interest in and to the intellectual property, including but not limited to any patents, copyrights, know-how, other works of authorship, trade secrets, trademarks, trade names or the like, associated with the Equipment (“Technology”). No transfer of ownership, title, or any other rights in the Technology is made by the sale of such Equipment to Buyer, except for the right to use the Technology consistent with the terms of this Agreement. The right to use the Technology explicitly does not include the right to modify, enhance, or improve the Technology or Equipment without the express written permission of INNOVIVE. Any and all modifications, enhancements, improvements, error corrections and bug fixes, made by INNOVIVE to any Equipment shall be the sole and exclusive property of INNOVIVE. Buyer shall not,  and shall not permit any third party to, reverse engineer, reverse compile or reverse  assemble the Product(s), in whole or in part. It is recognized and understood that the  existing technology and/or already conceived inventions, discoveries and  technologies of the parties hereto are their separate property. The inventorship of any  Invention made by one or both of the parties hereto shall be determined in accordance  with United States patent law. Except as otherwise provided in the following  paragraph, the ownership of any Invention shall be determined in accordance with  inventorship (i.e. a party hereto shall solely own Inventions conceived and/or reduced  to practice solely by it or its affiliates’ employees, agents, or consultants; and the  parties hereto shall jointly own Inventions conceived and/or reduced to practice  jointly by their employees or their Affiliates’ respective employees or consultants  (“Joint Inventions''). INNOVIVE shall own all rights to all Inventions (including  Joint Inventions) conceived and/or reduced to practice solely or jointly by employees  of INNOVIVE prior to the end of the Warranty Period that are improvements to or  enhancements of a Equipment individually, the Equipment as an integrated system or  any component thereof, including, without limitation, any Equipment or Equipment  Software, or any INNOVIVE consumable (the “System Improvements”).

  1. Patents: Subject to the terms and conditions herein, Buyer is granted the right to use the Equipment solely for its internal purposes. The sale of any Equipment will not be construed as granting to Buyer any license or other right to (a) apparatus, software, or circuits in which the Equipment or parts thereof may be used, (b) a process or machine in connection with which they may be used, or (c) the process for their manufacture. The only license granted hereunder is set forth in this Section XIX of these Standard Conditions of Sale. Further, Buyer shall not resell the Equipment to any third party without INNOVIVE’s express written consent.

  1. Subcontractors: INNOVIVE may perform its obligations through one or more subcontractors, provided that (i) none of the rights of Buyer hereunder are diminished or otherwise adversely affected as a result of such subcontracting, and (ii) the subcontractor undertakes in writing obligations of confidentiality and non-use regarding confidential information which are substantially the same as those undertaken by the parties. In the event INNOVIVE performs any of its obligations through a subcontractor, then INNOVIVE will at all times be responsible for the  performance and payment of such subcontractor.

  1. Installation: If INNOVIVE is going to install the Equipment, Buyer will provide INNOVIVE with reasonable facilities and assistance to accomplish the installation of the Equipment.

  2. Assignment: Neither party shall assign or transfer this Agreement, or all or any part of its rights hereunder, by operation of law or otherwise, without the prior written consent of the other party, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, INNOVIVE may assign this entire Agreement, including all of INNOVIVE’S rights and obligations under this Agreement without the consent of Buyer: (i) to any affiliate of INNOVIVE; (ii) to the surviving entity in the event of a merger, acquisition, or consolidation involving INNOVIVE; or (iii) to the successor or purchaser of any portion of the business of INNOVIVE resulting from a reorganization, spin-off, or sale of all or a portion of all the assets of any business, division, or group of INNOVIVE, provided, however, that any such affiliate, surviving entity, successor or purchaser agrees in writing to be bound by the terms of this Agreement. In the event of any of the foregoing assignments, INNOVIVE will have no further obligations or liability to Buyer under this Agreement except for obligations and liabilities that accrued before such assignment. Notwithstanding any notice of assignment, Buyer’s tender of payment to the Seller named herein, or to any person reasonably believed by Buyer to be entitled to payment, shall fully satisfy Buyer’s obligation to pay, and in no event shall Buyer be obligated to pay twice or be liable for any damages due to failure to pay the correct party. Any unauthorized assignment or transfer shall be null and void. This Agreement shall be binding upon and inure solely to the benefit of each Party and its successors and permitted assigns.

  1. Relationship of the Parties: Nothing contained in this Agreement shall be deemed or construed as creating a joint venture, employment, franchise, agency or partnership relationship between the parties. Neither party is by virtue of this Agreement authorized as an agent, employee, or legal representative of the other party, and the relationship of the parties is, and at all times shall continue to be, that of independent  contractors.

  1. Term; Termination:  The term of this Agreement is for one (1) year from the time you submit a Quotation or other purchase order with INNOVIVE, with renewal occurring automatically at the end of each subsequent year unless a party notifies the other not less than thirty (30) days prior to the end of the then-current term that it intends to terminate this Agreement. This Agreement will continue to apply to Buyer until it expires by its terms or is terminated by either INNOVIVE or Buyer. INNOVIVE may terminate this Agreement at any time. Buyer may terminate this Agreement at any time; provided, however, that Buyer is responsible for all amounts due and outstanding at the time of termination.

  1. Governing Law: The validity, construction, and performance of this Agreement is governed by and construed in accordance with the laws of the State of California, without reference to choice of law principles. Buyer expressly agrees that exclusive jurisdiction for any claim or dispute with INNOVIVE arising out of or relating to this Agreement, resides in the federal and state courts located in San Diego County, California, and Buyer submits to and consents to jurisdiction and venue in said courts. Buyer agrees to waive any defense pertaining to jurisdiction and venue.

  2. Non-Waiver: No waiver of any provision of this Agreement constitutes a waiver of any other provision, whether or not similar, nor does any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement does not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision.

  3. INNOVIVE reserves the right to modify or change these Terms and Conditions.