Terms and Conditions of Sale
Terms and Conditions. These Terms and Conditions govern the sales made by IV Labs, Inc. d/b/a Inorganic Ventures (“Company”) to Customer. These Terms and Conditions constitute an integral part of the sales contract between Company and Customer for the sale and purchase of the Product set forth in the Quotation. By accepting the Quotation, Customer shall be deemed to enter into a purchase order for the subject Product and any associated services and these Terms and Conditions shall govern. Any and all subsequent orders for the Product or any other goods or services provided by Company shall also be subject to these Terms and Conditions. Company’s failure to object to provisions contained in any communication from Customer shall not be deemed a waiver of these Terms and Conditions. Any changes in the terms and conditions contained herein must be specifically agreed to in writing and signed by an authorized officer of Company. In the event of a conflict between these Terms and Conditions and different terms and conditions set forth on the Quotation, these Terms and Conditions shall prevail.
Quotation. The Quotation is firm for sixty (60) days from the Quotation Date as set forth on the Quotation. The pricing in the Quotation applies only to the Product type and quantity set forth in the Quotation. Company may, at its option, change the Product pricing and other terms for any subsequent sales of the Product or any other goods or services offered by Company.
Prices. The applicable prices are only those specified in the Quotation and, unless expressly specified, do not include applicable destination charges or taxes. Prices and lead times are subject to revision due to interruptions, delays, or engineering changes.
Taxes. In addition to the prices set forth on the Quotation, Customer agrees to pay an amount equal to any and all applicable federal, state and local taxes, duties and other levies, which amounts shall be an additional charge to Customer.
Packaging. Company shall bear the packaging costs of the Product specified in the Quotation. Company shall be responsible for any delay, breakage or damage prior to delivery to the common carrier as set forth below.
Title and Delivery. Unless otherwise set forth on the Quotation, deliveries shall be FOB Company and risk of loss shall pass to Customer upon delivery of the units of Product ordered to a common carrier selected by Company. Company shall prepay the shipping costs and invoice such shipping costs to Customer. Title shall pass to Customer upon Company’s receipt of full payment on all outstanding invoices for the Product and shipping costs.
Payment. Terms of payment shall be net thirty (30) days from date of invoice unless other arrangements have been agreed upon by both parties. Interest on late payments may accrue at a rate of 1.5% per month. In case of a partial return of the Product by Customer owing to defects covered by warranty, the invoice shall be paid within the term stated for the amount corresponding to the quantity of Product accepted. Customer shall not make reductions on the invoice unit price or quantities without prior written approval of Company.
Cancellation/Reschedule. Once accepted by Customer in writing: (i) any custom order for Product pursuant to the Quotation is firm and non-cancelable once manufactured in whole or part; and (ii) any order of stock Product pursuant to the Quotation is firm and non-cancelable once delivered to the common carrier for shipping.
Limited Warranty/Disclaimer. Company warrants only that Product sold or delivered shall conform to the standard physical characteristics for that Product as defined within the applicable Product specifications supplied by Company in connection with the Quotation.
If, during the Warranty Period, any Product is found to be defective in material or workmanship, Company shall replace the defective Product; provided, however, that such replacement is Customer’s sole and exclusive remedy for receipt of a defective Product. This warranty is non-transferable upon unauthorized resale of the Product. This warranty does not extend to damage or wear caused by misuse, negligence, accident, corrosion, modification by the customer, loss of product, or tampering in a manner to impair normal operation of the Product. COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, ARISING BY LAW, CONTRACT OR OTHERWISE, INCLUDING WARRANTIES ARISING UNDER THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INTEROPERABILITY OR NON-INFRINGEMENT, ALL OF WHICH ARE SPECIFICALLY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
Technical Advice. COMPANY’S WARRANTIES AS HEREIN SET FORTH SHALL NOT BE ENLARGED, DIMINISHED, OR OTHERWISE AFFECTED BY, NOR SHALL ANY OBLIGATION OR LIABILITY OF COMPANY ARISE OUT OF COMPANY’S RENDERING OF TECHNICAL ADVICE.
Ownership. The formulas used to create and/or synthesize the Product are proprietary to Company and title thereto remains with Company. Customer acknowledges that (a) all copyrights, trademarks, patents, trade secrets and other proprietary rights in or related to the Product are owned by Company and (b) that any changes or modifications that Company makes to the Product as a result of any testing conducted by Customer shall be owned solely and exclusively by Company and shall not confer upon or convey to Customer any ownership or other rights in the Product.
LIMITATION OF LIABILITY. COMPANY’S LIABILITY TO CUSTOMER FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ANY ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE SHALL BE LIMITED TO THE PRICE SPECIFIED IN THE QUOTATION FOR THE SPECIFIC PRODUCT THAT CAUSED THE DAMAGES OR THAT IS THE SUBJECT MATTER OF, OR IS DIRECTLY OR INDIRECTLY RELATED TO THE CAUSE OF ACTION. EXCEPT FOR BREACHES OF THE CONFIDENTIALITY AND/OR INTELLECTUAL PROPERTY PROVISIONS HEREOF, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF USE OR OTHER SPECIAL, COLLATERAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION THEREOF, WHETHER IN CONTRACT OR IN TORT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ASSUMES ALL LIABLITY FOR ANY AND ALL DAMAGES ARISING FROM OR IN CONNECTION WITH, THE USE OR MISUSE OF THE PRODUCTS BY CUSTOMER, ITS EMPLOYEES, OR OTHERS. IN NO EVENT MAY ANY ACTION BE BROUGHT AGAINST COMPANY ARISING OUT OF ANY CONTRACT, AGREEMENT OR SALE COVERED BY THESE TERMS AND CONDITIONS MORE THAN ONE (1) YEAR AFTER THE CLAIM OR CAUSE OF ACTION ARISES, DETERMINED WITHOUT REGARD TO WHEN CUSTOMER SHALL HAVE LEARNED OF THE DEFECT, DAMAGE, INJURY OR LOSS.
Force Majeure. Company will not be responsible or liable for any delay or failure in performance arising as a result of fire, accident, acts of God, acts of public enemy, war, labor disputes, failure or delays, transportation, inability to secure product, raw materials or machinery for the manufacturing process, requirements or acts of any government or agency thereof, judicial action or other causes beyond Company’s control. In such event, Company may defer performance for a period equal to the time lost by reason of the delay. If such time exceeds forty-five (45) days, Company may by written notice to Customer cancel the Quotation as to any Products then undelivered without liability to Customer.
Confidentiality. Customer acknowledges that the Product (and each unit thereof) contains valuable trade secrets and confidential information owned by Company (collectively, “Confidential Information”). Confidential Information includes but is not limited to the functionality of the Product and the formulas used to create and/or synthesize the Product. All drawings, diagrams, Product specifications, instructions, renderings, technical information and other material furnished by Company in connection with the Product (and all copies thereof) likewise constitute Confidential Information, as do the terms and conditions of the Quotation (including, without limitation, pricing information). Customer agrees to take all reasonable precautions to secure and protect such Confidential Information in a manner consistent with the maintenance of Company’s rights therein (but in no event, using anything less than the care taken to protect Customer’s proprietary data) and to ensure that all its employees or consultants who are permitted access to such Confidential Information understand that it is Confidential Information and agree in writing to abide by the terms and conditions of this Confidentiality provision. Any tests conducted by Customer and the results thereof shall be deemed confidential information and the property of Customer. No other party shall be given the results of such tests by the Customer without written approval of Company. Violation of any provision of this paragraph shall cause immediate and irreparable harm to Company and Customer agrees and acknowledges that Company shall be entitled to seek and secure the remedy of injunctive relief, as well as other applicable legal or equitable relief, without the necessity of posting a security or bond. Notwithstanding the foregoing, Confidential Information shall not include application and test data regarding the performance of Customer’s products or information about a Product made public by the Company.
Assignment. Customer will not assign or subcontract its order, any interest therein or any right therein without the prior written consent of Company.
Governing Laws; Disputes. Any dispute regarding this Agreement or any Order will be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to its conflict of laws provisions. All disputes arising out of or in connection with this Agreement, if involving a Reseller based in a country, other than the United States of America, shall be resolved under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with said Rules of Arbitration. In the event a dispute arises under this Agreement or any Order related to a Reseller based within the United States of America, such dispute shall be brought in the federal courts located in the Commonwealth of Virginia. The United Nations Convention on the International Sale of Goods shall not apply to this Agreement or any Order. In the event a dispute arises under this Agreement or any Order, the prevailing party in such dispute shall be entitled to recover its attorneys’ fees, court or arbitration costs.
Export Control. Customer will comply fully with all export control laws and regulations of the United States Government and with any applicable laws and regulations of any other country and will indemnify, if requested, Company for any failure.
Data Protection. The Customer owns the rights to its data as data controller, and the Company acts as data processor on the Customer’s behalf. All processing by the Company of personal data and other data provided by the Customer shall be in accordance with the applicable laws. The Company’s processing of personal data on behalf of the Customer shall therefore only be done in order to provide the Product and shall be subject to the Customer’s written instructions. Furthermore, the parties obligations regarding the processing of personal data are regulated in the Data Processing Addendum set out in Exhibit A. By accepting these Terms and Conditions, the Customer also accepts the terms of the Addendum attached hereto.
Severability of Provisions. In the event of any one or more of the provisions contained herein shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this contract will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
Independent Contractors. The relationship of the parties is that of individual independent contractors or of vendor and vendee and nothing contained herein shall be deemed to (i) create a joint venture or partnership among Company and Customer, or (ii) cause either party or any of their respective officers, agents or employees to be or become the agent or employee of the other party for any reason.
Complete Agreement. The Quotation, including these terms and conditions and all attachments and documents incorporated by reference herein, constitutes the complete and exclusive statement of the terms and conditions of the sale contract between Company and Customer and supersedes all prior or contemporaneous agreements, representations and/or communications, either oral or written, between the parties hereto or any representative of such parties with respect to the subject matter hereof. No change to this contract or waiver of any provision hereof will be binding on Company unless made in writing and signed by a duly authorized representative of Company.
DATA PROCESSING ADDENDUM
To the extent that Inorganic Ventures will process any Customer Personal Data (each as defined below) and (i) the Customer Personal Data relates to individuals located in the EEA; or (ii) Customer is established in the EEA, the provisions of this Data Processing Addendum (“DPA”) shall apply to the processing of such Customer Personal Data. In the event of any conflict between the remainder of the Terms and Conditions and the DPA, the DPA will prevail.
1.1. The following capitalized terms used in this DPA shall be defined as follows:
(a) “Controller” has the meaning given in the GDPR.
(b) “Data Protection Laws” means the EU General Data Protection Regulation 2016/679 (“GDPR“), any applicable national implementing legislation in each case as amended, replaced or superseded from time to time, and all applicable legislation protecting the fundamental rights and freedoms of persons and their right to privacy with regard to the Processing of Customer Personal Data.
(c) “Data Subject” has the meaning given in the GDPR.
(d) “European Economic Area” or “EEA” means the Member States of the European Union together with Iceland, Norway, and Liechtenstein.
(e) “Processing” has the meaning given in the GDPR, and “Process” will be interpreted accordingly.
(f) “Processor” has the meaning given in the GDPR.
(g) “Security Incident” means any confirmed accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, any Customer Personal Data.
(h) “Standard Contractual Clauses” means the Standard Contractual Clauses (processors) approved by European Commission Decision C(2010)593 or any subsequent version thereof released by the European Commission (which will automatically apply).
(i) “Subprocessor” means any Processor engaged by Inorganic Ventures who agrees to receive from it Customer Personal Data.
(j) “Customer Personal Data” means the “personal data” (as defined in the GDPR) described in the Annex and any other personal data provided by Customer in connection with the provision of products.
(k) “Supervisory Authority” has the meaning given in the GDPR.
2. Data Processing
2.1. The Parties acknowledge and agree that for the purpose of the Data Protection Laws, the Customer is the Controller and Inorganic Ventures is the Processor.
2.2 Instructions for Data Processing. Inorganic Ventures will only Process Customer Personal Data in accordance with Customer’s written instructions. The parties acknowledge and agree that the Terms and Conditions (subject to any changes agreed to between the parties) and this DPA shall be Customer’s complete and final instructions to Inorganic Ventures in relation to the processing of Customer’s Personal Data.
2.3. Processing outside the scope of this DPA or the Terms and Conditions will require prior written agreement between Customer and Inorganic Ventures on additional instructions for Processing.
2.4. Required consents. Where required by applicable Data Protection Laws, Customer will ensure that it has obtained/will obtain all necessary consents and complies with all applicable requirements under Data Protection Laws for the Processing of Customer Personal Data by Inorganic Ventures in accordance with the Agreement.
3. Transfer of Personal Data
3.1. Authorized Subprocessors. Customer agrees that Inorganic Ventures may use the following as Subprocessors to Process Customer Personal Data:
|Subprocessor||Description of Processing|
|Backup of Inorganic Ventures Data|
3.2. Customer agrees that Inorganic Ventures may use subcontractors to fulfil its contractual obligations under the Terms and Conditions. Inorganic Ventures shall notify Customer from time to time of the identity of any Subprocessors engaged. If Customer (acting reasonably) objects to a new Subprocessor on grounds related to the protection of Customer Personal Data only, then without prejudice to any right to terminate the Agreement, Customer may request that Inorganic Ventures move the Customer Personal Data to another Subprocessor and Inorganic Ventures shall, within a reasonable time following receipt of such request, use reasonable endeavors to ensure that the original Subprocessor does not Process any of the Customer Personal Data. If it is not reasonably possible to use another Subprocessor, and Customer continues to object for a legitimate reason, either party may terminate the Agreement on thirty (30) days written notice. If Customer does not object within thirty (30) days of receipt of the notice, Customer is deemed to have accepted the new Subprocessor.
3.3. Save as set out in clauses 3.1 and 3.2, Inorganic Ventures shall not permit, allow or otherwise facilitate Subprocessors to Process Customer Personal Data without Customer’s prior written consent and unless Inorganic Ventures:
(a) enters into a written agreement with the Subprocessor which imposes equivalent obligations on the Subprocessor with regard to their Processing of Customer Personal Data, as are imposed on Inorganic Ventures under this DPA; and
(b) shall at all times remain responsible for compliance with its obligations under the DPA and will be liable to Customer for the acts and omissions of any Subprocessor as if they were Inorganic Venture’s acts and omissions.
3.4. International Transfers of Customer Personal Data. To the extent that the Processing of Customer Personal Data by Inorganic Ventures will involve the export of such Customer Personal Data to it or a third party in a country or territory outside the EEA, such export shall be to a country or territory ensuring an adequate level of protection for the rights and freedoms of Data Subjects as determined by the European Commission.
4. Data Security, Audits and Security Notifications
4.1 Inorganic Ventures Security Obligations. Inorganic Ventures will implement and maintain appropriate technical and organizational security measures to ensure a level of security appropriate to the risk, including as appropriate, the measures referred to in Article 32(1) of the GDPR.
4.2 Upon Customer’s reasonable request, Inorganic Ventures will make available all information reasonably necessary to demonstrate compliance with this DPA.
4.3 Security Incident Notification. If Inorganic Ventures becomes aware of a Security Incident, it will (a) notify Customer of the Security Incident within 72 hours, (b) investigate the Security Incident and provide Customer (and any law enforcement or regulatory official) with reasonable assistance as required to investigate the Security Incident.
4.4 Inorganic Ventures’ Employees and Personnel. Inorganic Ventures will treat the Customer Personal Data as confidential, and shall ensure that any employees or other personnel will protect the confidentiality and security of Customer Personal Data.
4.5 Audits. Inorganic Ventures will, upon Customer’s reasonable request and at Customer’s expense, allow for and contribute to audits, including inspections, conducted by Customer (or a third party auditor on Customer’s behalf and mandated by Customer) provided (i) such audits or inspections are not conducted more than once per year (unless requested by a Supervisory Authority); (ii) are conducted only during business hours; (iii) are conducted in a manner that causes minimal disruption to Inorganic Ventures’ operations and business; and (iv) following completion of the audit, upon request, Customer will promptly provide Inorganic Ventures with a complete copy of the results of that audit.
5. Access Requests and Data Subject Rights
5.1 Data Subject Rights. Where applicable, and taking into account the nature of the Processing, Inorganic Ventures will use reasonable endeavors to assist Customer by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of its obligation to respond to requests for exercising Data Subject rights laid down in the Data Protection Laws.
6. Data Protection Impact Assessment and Prior Consultation
6.1 To the extent required under applicable Data Protection Laws, Inorganic Ventures will provide Customer with reasonably requested information regarding its website and services to enable Customer to carry out data protection impact assessments or prior consultations with any Supervisory Authority, in each case solely in relation to Processing of Customer Personal Data and taking into account the nature of the Processing and information available to Inorganic Ventures.
7.1 Deletion or return of data. Subject to 7.2 below, Inorganic Ventures will, at Customer’s written request and within 90 (ninety) days of the date of termination of the Agreement:
(a) make available for retrieval all Customer Personal Data Processed by Inorganic Ventures (and delete all other copies of Customer Personal Data Processed by Inorganic Ventures following such retrieval); or
(b) delete the Customer Personal Data Processed by us.
7.2 Inorganic Ventures and its Subprocessors may retain Customer Personal Data to the extent required by applicable laws and only to the extent and for such period as required by applicable laws and always provided that Inorganic Ventures ensures the confidentiality of all such Customer Personal Data and shall ensure that such Customer Personal Data is only Processed as necessary for the purpose(s) specified in the applicable laws requiring its storage and for no other purpose.
8. Governing law
8.1 This DPA shall be governed by, and construed in accordance with the laws of the Commonwealth of Virginia. Each of the parties irrevocably submits for all purposes (including any non-contractual disputes or claims) to the non-exclusive jurisdiction of the courts in Virginia.
Details of the Processing of Customer Personal Data
This Exhibit includes certain details of the processing of Customer Personal Data as required by Article 28(3) of the GDPR.
Subject matter and duration of the Processing of Customer Personal Data
The nature and purpose of the Processing of Customer Personal Data
The types of Customer Personal Data to be processed
The Customer Personal Data concern the following categories of data: names; email addresses; personal and professional information; and any other personal data provided by the Customer in connection with its purchase of product from Inorganic Ventures.
The obligations and rights of the Customer
The obligations and rights of the Customer are as set out in this DPA.