SURPLUS MATERIALS TERMS AND CONDITIONS
These terms and conditions are
agreed to this date
1. Agreement to Purchase. Purchaser hereby agrees to purchase from Bayer HealthCare LLC, a Delaware limited liability company, with offices located at 6 West Belt, Wayne, NJ 07470 94710 (hereinafter called Seller), AS IS, each and any of the following described items which Seller has agreed to sell (hereafter, individually Surplus Material and collectively Surplus Materials) upon the terms set forth herein and in each Rider, if any, listed below, which Riders are hereby made a part hereof:
2. Purchasers Representations, Warranties and Responsibilities to Warn.
(a) PURCHASER REPRESENTS AND WARRANTS THAT IT UNDERSTANDS THE NATURE AND CHARACTERISTICS OF EACH SURPLUS MATERIAL, IS AWARE THAT SURPLUS MATERIALS MAY BE, BEAR OR CONTAIN HAZARDOUS MATERIALS AND IS FAMILIAR WITH ANY HEALTH, SAFETY AND/OR ENVIRONMENTAL HAZARDS ARISING OUT OF OR RESULTING FROM THE POSSESSION, USE, STORAGE, TRANSPORTATION, MAINTENANCE, HANDLING, TREATMENT AND DISPOSAL OF SUCH MATERIALS OR SURPLUS MATERIAL.
(b) PURCHASER REPRESENTS AND WARRANTS THAT IT IS ACCUSTOMED TO HANDLING ITEMS SIMILAR TO SURPLUS MATERIAL AND TO HANDLING MATERIALS BEARING OR CONTAINING HAZARDOUS MATERIALS AND THAT IT HAS THE NECESSARY EXPERTISE, EQUIPMENT AND FACILITIES TO SAFELY AND LAWFULLY CONDUCT ALL OF PURCHASERS ACTIVITIES INVOLVING SURPLUS MATERIALS, INCLUDING, TRANSPORTATION, HANDLING, STORAGE, DISPOSAL, TREATMENT AND USE, AND WILL SO CONDUCT SUCH ACTIVITIES.
(c) PURCHASER REPRESENTS AND WARRANTS THAT IT HAS READ AND UNDERSTANDS ALL INFORMATION RELATING TO SURPLUS MATERIALS LISTED ABOVE WHICH IS CONTAINED IN ANY MATERIAL SAFETY DATA SHEETS AND OTHER DOCUMENTS WHICH ARE ATTACHED HERETO AND MADE A PART HEREOF. PURCHASER AGREES TO PROVIDE ALL INFORMATION SUPPLIED TO IT BY SELLER WITH RESPECT TO ANY SURPLUS MATERIAL SOLD HEREUNDER TO ANY SUBSEQUENT PURCHASERS OF SUCH SURPLUS MATERIAL, IF ANY SURPLUS MATERIALS TO WHICH THIS AGREEMENT APPLIES ARE TO BE RELABELED BY PURCHASER, SUCH RELABEL MUST INCLUDE, AS A MINIMUM, ALL THE SAFETY INFORMATION ON SELLERS LABEL AND BE LABELED IN ACCORDANCE WITH ALL APPLICABLE LOCAL, STATE AND FEDERAL LAWS AND REGULATIONS.
(d) PURCHASER REPRESENTS AND WARRANTS THAT SURPLUS MATERIALS ARE BEING PURCHASED FOR COMMERCIAL USE ONLY AND WILL NOT BE RESOLD, DONATED OR OTHERWISE MADE AVAILABLE TO INDIVIDUALS FOR PERSONAL USE.
(e) PURCHASER AGREES TO WARN ALL PERSONS (INCLUDING, BUT NOT LIMITED, TO PURCHASERS EMPLOYEES, SUBCONTRACTORS AND CUSTOMERS) WHO MAY BECOME EXPOSED TO SURPLUS MATERIAL, OF THE HAZARDS ASSOCIATED THEREWITH (INCLUDING, BUT NOT LIMITED TO, ANY HAZARDS INDICATED IN THE DOCUMENTS REFERENCED HEREIN OR ATTACHED HERETO), AND PURCHASER AGREES TO TAKE ALL ACTION NECESSARY TO PROTECT SUCH PERSONS FROM SAID HAZARDS.
3. Claims. Purchasers receipt, or receipt by Purchasers agent or carrier, of Surplus Materials delivered hereunder shall be an unqualified acceptance of, and a waiver by Purchaser of its rights to make any claim with respect to, such Surplus Materials, unless Purchaser gives Seller written notice of any claim within thirty (30) days of any such receipt. Purchaser assumes all risks with respect to the use of Surplus Materials after delivery by Seller to Purchaser or its contracted representative or its carrier. Title to, and risk of loss of, Surplus Materials delivered hereunder shall pass to Purchaser upon such delivery. No claim of any kind, whether or not as to Surplus Materials delivered or for non-delivery of Surplus Materials, and whether or not based on negligence or otherwise, shall be greater in amount than the price of the claimed portion of the Surplus Materials plus any transportation paid by Purchaser in respect of which such claim is made. In no event shall Seller be liable for special, indirect, punitive or consequential damages, howsoever arising and whether or not caused by or resulting from the negligence of Seller.
4. Force Majeure. Neither Purchaser nor Seller shall be liable for its failure to perform hereunder if said performance is made impracticable due to any occurrence beyond its reasonable control, including act of God, fires, floods, wars, sabotage, accidents, labor disputes or shortages, governmental laws, ordinances, rules and regulations, whether valid or invalid, and any other similar or different occurrence. In no event shall Seller be obligated to purchase or manufacture/generate Surplus Materials or other materials in order to enable it to deliver Surplus Materials to Purchaser.
5. Warranty. Purchaser understands and agrees that Seller sells Surplus Materials AS IS and WHERE IS. THERE ARE NO EXPRESS WARRANTIES OTHER THAN SELLERS WARRANTY OF TITLE. NO WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SHALL BE IMPLIED.
6. Non-Waiver. Failure of Seller to exercise any right under this Agreement upon one occasion shall not waive the right to exercise the same on another occasion.
7. Compliance with Laws.
(a) All permits, licenses and governmental approvals of whatever nature relating to the purchase, possession, transportation, storage, processing, maintenance, handling, labeling, use and/or disposition of Surplus Materials after delivery to Purchaser shall be obtained by Purchaser, at its own expense, and Purchaser hereby represents that it has obtained and will maintain all such permits, licenses and governmental approvals and will furnish copies of same to Seller upon request.
(b) Purchaser shall comply with all laws and ordinances and all governmental orders, rules and regulations relating in any way to its purchase, possession, transportation, storage, processing, maintenance, handling, labeling, use and/or disposition of Surplus Materials; to the labor, equipment and facilities used in connection therewith; and to the protection of the public health, safety or environment with respect to its transportation, handling, use or disposition of Surplus Materials. Purchaser shall indemnify and hold harmless Seller against all fines, penalties, assessments, damages and other liability of whatever nature arising out of or resulting from Purchasers failure to comply with this paragraph 7.
8. Indemnity. Purchaser shall indemnify, defend and save harmless Seller, its affiliates, employees and agents, from and against all claims, liabilities, losses, damages, fines, penalties and expense of every character whatsoever (including, but not limited to, liability for pollution, environmental damage or restoration, nuisance, bodily injury, sickness and/or disease, including death, and loss of or damage to property), which are caused by, or arise out of or relate in any way, directly or indirectly, to Surplus Materials, after delivery to Purchaser of Surplus Materials at Place of Delivery, whether such liability is based on contract, WARRANTY, tort (including negligence and strict liability), statute, or otherwise. Purchaser understands and intends that this indemnity provision includes all such claims, damages, losses and expenses, including reasonable attorneys fees, regardless of whose actions, omissions or negligence may have caused the incident and includes incidents caused partly or wholly by any failure, omission or negligence of Seller.
(a) The validity, interpretation and performance of this Agreement with respect to Surplus Materials delivered or to be delivered hereunder shall be governed by the laws of the state of New York. This Agreement contains all of the representations and agreements of the parties hereto pertaining to the subject matter hereof, and there are no oral understandings, representations or warranties affecting it. This Agreement shall be binding upon and endure to the benefit of the respective successors and assigns of each of the parties hereto, but any assignment hereof by Purchaser without the prior written consent of Seller shall be void. No modifications of this Agreement or waiver of the terms or conditions hereof shall be binding upon Purchaser or Seller unless approved in writing by an authorized representative, or shall be effected by the acknowledgment or acceptance of purchase order forms containing other or different terms or conditions whether or not signed by an authorized representative of Purchaser or Seller. Neither course of performance nor course of dealing nor usage of trade shall be used to interpret, construe, qualify, explain or supplement any of the terms of this Agreement.
(b) The Additional Terms attached hereto, together with any Riders listed below, are part of this Agreement as effectively as though they preceded the signatures of Purchaser and Seller. In case of conflict between the terms of this Agreement and any additional terms the terms in this Agreement shall prevail.
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IN WITNESS WHEREOF the Purchaser has executed these terms and conditions as indicated by its signature below.
LIST OF RIDERS
The Surplus Materials being sold have been used by Seller in testing or manufacturing biological, chemical, and / or pharmaceutical products. Although Seller has made commercially reasonable efforts to clean the Surplus Materials, including the portion(s) directly in contact with biological products, biological agents, chemicals and potentially harmful materials (collectively Contact Agents), there is some possibility that one or more Contact Agents remain present somewhere in or on the Surplus Materials. Purchaser acknowledges and shall take all appropriate, commercially reasonable steps in hand and using the Surplus Materials.