Terms of Product Sales
THE TERMS RELATED TO PRODUCT SALES ARE LIMITED TO THOSE SET OUT IN THIS DOCUMENT, AND/OR ON COMPUGEN’S INVOICE IN RESPECT OF THE SALE.
BY ACCEPTING DELIVERY OF THE PRODUCTS OR BY ENGAGING COMPUGEN INC ("COMPUGEN") TO PROVIDE PRODUCTS, CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS UNLESS CUSTOMER AND COMPUGEN HAVE SIGNED A SEPARATE PURCHASE AGREEMENT, IN WHICH CASE THE SEPARATE AGREEMENT WILL GOVERN.
ORDERS PLACED BY CUSTOMER ARE NOT BINDING UNTIL ACCEPTED BY COMPUGEN. ORDER DELIVERY TIMES ARE ESTIMATES ONLY AND COMPUGEN IS NOT LIABLE FOR ANY DELAYS THAT ARE BEYOND ITS CONTROL. THESE TERMS ARE SUBJECT TO CHANGE WITHOUT PRIOR NOTICE.
Important Information About These Terms
The Customer acknowledges that these Terms constitute a binding contract between Customer and COMPUGEN and are referred to herein as either "Terms " or this "Agreement". Customer accepts these Terms by making a purchase from or placing an order with COMPUGEN or shopping on any COMPUGEN Website or Mobile Application (each, a ‘’Site") or otherwise requesting Products.
Customer consents to receiving electronic records related to its transactions with Compugen, which may be provided via a Web browser or e-mail application. Customers may withdraw consent to receiving electronic records or have the record provided in non-electronic form by contacting COMPUGEN. Customer acknowledges and agrees that electronic signatures (or copies of signatures sent via electronic means) are the equivalent of written and signed documents.
Customer may issue a purchase order for administrative purposes only. Terms set forth in such purchase orders other than those required to identify the Customer, the Products and the quantity ordered contained in any such purchase order will be null and void. This Agreement contains the entire understanding of the parties with respect to the terms in respect of Products and supersedes and replaces in its entirety any and all prior communications and contemporaneous agreements and understandings, whether oral, written, electronic or implied, if any, between the parties with respect to the subject matter hereof.
Products as used herein, refers to goods and services that Compugen resells from Third-Party Providers, including but not limited to hardware, software, subscription services, updates, bug fixes, maintenance services, support services, warranty services and professional services that Customers may order (collectively, "Products"). “Third-Party Providers” for which Compugen acts as a reseller or sales agent includes but is not limited to manufacturers, distributors, licensors or providers of the Products. In purchasing the Products, Customer is relying on the Third-Party Provider’s specifications only and is not relying on any statements or documents that may be provided by Compugen. In the case of Products of Third-Party Providers, Customer acknowledges and agrees that: (i) the Products purchased by Customer are resold by Compugen for Customer’s use only (unless otherwise stated in any separate written agreement entered into by Customer and Compugen); and (ii) Compugen is not the creator, manufacturer, distributor or licensor of the Products. Customer hereby releases COMPUGEN from any and all claims arising from or relating to the purchase or provision of any such Third-Party Provider Products.
IN THE EVENT THAT COMPUGEN PROVIDES SERVICES TO THE CUSTOMER THAT ARE NOT THIRD-PARTY SERVICES, THE TERMS APPLICABLE TO THE PROVISION OF SUCH SERVICES SHALL BE THOSE SET OUT IN THE DOCUMENT ENTITLED “TERMS FOR THE SUPPLY OF SERVICES” AS PUBLISHED FROM TIME TO TIME ON COMPUGEN’S WEBSITE: https://www.compugen.com/en/service_terms
Title; Risk of Loss
If Customer provides COMPUGEN with Customer’s carrier account number or selects a carrier other than a carrier that regularly ships for COMPUGEN, title to Products and risk of loss or damage during shipment pass from COMPUGEN to Customer upon delivery to the carrier (F.O.B. Origin, freight collect). For all other shipments, title to Products and risk of loss or damage during shipment pass from COMPUGEN to Customer upon delivery to the specified destination (F.O.B. Destination, freight prepaid and added). Notwithstanding the foregoing, title to software will remain with the applicable licensor(s), and Customer's rights therein are contained in the license agreement or subscription agreement between such licensor(s) or software publisher(s) and Customer.
Customer agrees to pay the total purchase price for the Products plus shipping and other costs identified on the invoice delivered from time to time by Compugen. Customer will pay any applicable sales, use, goods and services, transaction, excise or similar taxes and any federal, provincial, local fees or charges (including, but not limited to, environmental or similar fees), imposed on, in respect of or otherwise associated with all of the Products.
Terms of payment are within COMPUGEN's sole discretion. Customer will pay for the Products as invoiced by COMPUGEN. Invoices are due and payable within the time period specified on the invoice unless otherwise specified in writing by agreement between Customer and Compugen in advance, measured from the date of invoice, subject to continuing credit approval by COMPUGEN.
COMPUGEN may invoice Customer separately for partial shipments. Customer agrees to pay interest on all past-due sums at one and one-half percent (1.5%) per month, (18% per annum) calculated monthly.
In the event payments are not received in accordance with COMPUGEN’s approved terms of payment, COMPUGEN may suspend or terminate the provision of Products (including subscriptions) upon notice to the Customer.
Customer must claim any exemption from such taxes, fees or charges at the time of purchase and provide COMPUGEN with the necessary supporting documentation. In the event of a payment default, Customer will be responsible for all of COMPUGEN’s costs of collection, including, but not limited to, court costs, filing fees and lawyers' fees. All references to money amounts are to lawful currency of Canada or as otherwise stipulated in the invoice.
Customer agrees that it will not divert, use, export or re-export such items contrary to any federal, state or provincial laws in Canada or the United States. Customer expressly acknowledges and agrees that it will not export, re-export, or provide such items to any entity or person within any country that is subject to Canadian or United States economic sanctions imposing comprehensive embargoes without obtaining prior authorization from the applicable authority. Customer also expressly acknowledges and agrees that it will not export, re-export, or provide such items to entities and persons that are ineligible under Canadian or United States law to receive such items.
If applicable and permitted by the Third-Party Provider, COMPUGEN will pass through to Customer any warranties provided to COMPUGEN by the Third-Party Provider for a Product. This limited obligation to pass through warranties provided by the Third-Party Provider to Customer is Customer’s sole remedy and COMPUGEN'S sole obligation in connection with representations, warranties and conditions related to Products. COMPUGEN MAKES NO WARRANTIES OR REPRESENTATIONS IN CONNECTION WITH THE PRODUCTS WHETHER EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABLE QUALITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. THE PARTIES HEREBY EXPRESSLY EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS AND ANY LOCAL IMPLEMENTING LEGISLATION RELATED THERETO. Customer acknowledges that no employee of COMPUGEN is authorized to make any representation or warranty on behalf of COMPUGEN that is not in this Agreement.
Pricing Information; Availability Disclaimer
COMPUGEN reserves the right to make adjustments to pricing for reasons including, but not limited to, changing market conditions, Product discontinuation, Product unavailability, manufacturer price changes, supplier price changes and errors in advertisements. All orders are subject to Product availability. Therefore, COMPUGEN cannot guarantee that it will be able to fulfill Customer’s orders.
Limitation of Liability
COMPUGEN’S TOTAL AND AGGREGATE LIABILITY FOR ANY LOSS, DAMAGE, COST OR EXPENSE SUFFERED OR INCURRED BY CUSTOMER ARISING OUT OF OR IN CONNECTION WITH THE CUSTOMER’S ORDER OR PURCHASE OF PRODUCTS, COMPUGEN’S SUPPLY OF PRODUCTS OR THIS AGREEMENT IS HEREBY LIMITED TO THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCT GIVING RISE TO THE CLAIM; OR (B) TEN-THOUSAND ($10,000.00) CANADIAN DOLLARS.
IN NO EVENT SHALL COMPUGEN BE LIABLE TO THE CUSTOMER FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES. COMPUGEN SHALL HAVE NO LIABILITY FOR THE FOLLOWING: (I) LOSSES OF REVENUE, INCOME, PROFIT OR SAVINGS; (II) LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF SYSTEMS OR NETWORK(S, OR THE RECOVERY OF SUCH; (III) LOSS OF BUSINESS OPPORTUNITY; (IV) BUSINESS INTERRUPTION OR DOWNTIME; (V) CYBERSECURITY BREACHES (VI) LOSS OF GOODWILL OR REPUTATION; OR (VII) PRODUCTS NOT BEING AVAILABLE FOR USE OR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR OTHER GOODS.
The foregoing limitations, exclusions and disclaimers shall apply to any and all claims, regardless of whether the alleged or actual damages were foreseeable or a claim for such damages is based in contract, warranty, strict liability, negligence, tort or otherwise. Insofar as applicable law prohibits any limitation on liability herein, the parties agree that such limitation will be automatically modified, but only to the extent so as to make the limitation compliant with applicable law. The parties agree that the limitations on liabilities set forth herein are agreed and bargained-for allocations of risk and Compugen’s compensation for the Products reflects such allocations. Such limitations will apply notwithstanding the failure of the essential purpose of this Agreement or any remedy contained herein and even if a party has been advised of the possibility of any such failure or liability.
Approvals for unused, unopened returns are subject to manufacturer return policies and guidelines and Compugen’s ability to return Product to its vendors. Such Products must be complete and in manufacturer’s original packaging, with no visible damage. Compugen will not be required to accept any return of sold Products without an approved return merchandise authorization (“RMA”) number, which may be obtained by contacting RMARequests@compugen.com. An RMA number is valid for five (5) days from Compugen issuance date unless other arrangements are made between the parties at the time of Compugen’ s RMA approval. The Compugen RMA number is to be clearly noted on a shipping label affixed to the outer shipping box and any items received into a Compugen return facility without an RMA number or after the elapsed time period will be sent back to the Customer at the customer’s expense, unless otherwise agreed. Except in the event of a Compugen or vendor error, Customer will be responsible for shipping charges associated with any Products being shipped for return, exchange or replacement, unless otherwise agreed by Compugen. Products exchanged or replaced will be shipped back to Customer, at Customer’s expense. At Compugen’ discretion, restocking fees may be charged for items which do not qualify for return under this policy. Some manufacturers require that defective or Dead on Arrival (DOA) Products be returned directly to them, or they may limit the timeframe in which Products can be returned; therefore, Products that are inoperable at initial use may be eligible for DOA return to or replacement by the manufacturer, subject to the manufacturer’s product defective/DOA return policies. If the Product is not returnable under manufacturer guidelines, Compugen will make every attempt to repair or replace the Product through the manufacturer’s warranty and Compugen will work with its vendors to facilitate returns for the Customer.
Any claim, dispute, or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including, but not limited to, statutory, common law, intentional tort and equitable claims capable in law of being submitted to binding arbitration) arising from or relating to the Products sold pursuant to this Agreement, the interpretation or application of these Terms or the breach, termination or validity thereof, the relationships which result from these Terms (including, to the full extent permitted by applicable law, relationships with third-parties who are not signatories hereto), or COMPUGEN's or any of its Affiliates' advertising or marketing (collectively, a “Claim”) WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION BY A SINGLE ARBITRATOR CONDUCTED PURSUANT TO THE NATIONAL ARBITRATION RULES OF THE ADR INSTITUTE OF CANADA, INC. Neither COMPUGEN nor Customer will have the right to litigate that Claim in court or to have a jury trial on that Claim or to engage in pre-arbitration discovery, except as provided for in the applicable arbitration rules or by agreement of the parties involved. Further, Customer will not have the right to participate as a representative or member of any class of claimants pertaining to any Claim. Notwithstanding any choice of law provision included in this Agreement, this arbitration is subject to the Arbitration Act, 1991 (Ontario), as amended. The arbitration will take place exclusively in Toronto, Ontario. The language of the arbitration shall be conducted in English. Any court having jurisdiction may enter judgment on the award rendered by the arbitrator. Each party involved will bear its own cost of any legal representation, discovery or research required to complete arbitration. The existence or results of any arbitration will be treated as confidential. Notwithstanding anything to the contrary contained herein, all matters pertaining to the collection of amounts due to COMPUGEN arising out of the Products will be exclusively litigated in court rather than through arbitration.
These terms and any sale of products hereunder will be governed by the laws of the province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of laws rules. Any arbitration, enforcement of an arbitration or litigation will be brought exclusively in Toronto, Ontario and Customer consents to the non-exclusive jurisdiction of the courts of Ontario with respect to any subject matter arising hereunder or relating thereto and waives the right to change venue. The rights and remedies provided by COMPUGEN under these Terms are cumulative, are in addition to, and do not limit or prejudice any other right or remedy available at law or in equity.
COMPUGEN may assign or subcontract all or any portion of its rights or obligations with respect to the sale of Products or assign the right to receive payments, without Customer's consent. Customer may not assign its rights or obligations under these Terms without the prior written consent of COMPUGEN. Subject to the restrictions in assignment contained herein, these Terms will be binding on and ensure to the benefit of the parties hereto and their successors and permitted assigns. No provision of this Agreement will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties. If any term or condition of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or conditions hereof or thereof or the whole of this Agreement. Notices provided under this Agreement will be given in writing at the address of Compugen and the Customer set out in the invoice for the Product and deemed received upon the earlier of actual receipt, the date of transmission of a notice sent by email or five (5) days after mailing if mailed postage prepaid by regular mail or one (1) day after such notice is sent by courier. Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter enforce such rights.
Version Date: Compugen May 24, 2022