SWABTEK TERMS AND CONDITIONS OF SALE
Thank you for purchasing products from Veriteque USA, Inc. (“Swabtek”, “we”, and “us”). Unless otherwise agreed in writing by us, your purchase and use of Swabtek products (“Products”), and our supply of Products to you, are exclusively subject to and governed by these terms and conditions (“Terms”).
- Contract Terms. These Terms constitute the entire contract between you and Swabtek (“Agreement”), and supersede all other representations and understandings between the parties, whether written or oral, with respect to the subject matter of these Terms. When you place an order for Products (each an “Order”), this constitutes your commitment to purchase the Products identified in your order, and by ordering Products from us, you accept and are bound by these Terms. This Agreement is created when we accept your Order, either by sending a written confirmation or by shipping the ordered Product.
- Payment. You must pay for all Products in full at the time of your Order; we will not ship Products for which we have not received payment in full.
- Delivery. We deliver all Products FCA (INCOTERMS 2020) our shipping point. We may, in our discretion, make partial shipments and invoice each shipment separately. Our delivery dates are approximate only, and we are not liable for any penalty, loss or damage resulting from any delay in delivery. If we delay delivery for a cause beyond our reasonable control, we may terminate the affected Order or reschedule the delivery within a reasonable period of time. You may not refuse delivery or otherwise be relieved of any obligations as the result of a delay. Once you have placed your Order, you cannot cancel or change it unless we consent in writing, in which case you will pay cancellation charges or an adjustment in the purchase price, as specified by us. You may not return Products without our prior written consent. Products are considered delivered when we load them onto the commercial carrier at origin. At this point, you are responsible for risk of loss and damage, and title to purchased Products will pass to you.
- NOTICE TO USERS. You are solely responsible for your use of Products and for making sure that the way you use Products complies with applicable laws, regulations and governmental policies an Product documentation. You must obtain all necessary approvals and permissions you may need to use the Products. It is your responsibility to make sure the Products are suitable for your particular use. You may not resell Products.
Results of Products are presumptive only and, as such, they indicate the presumed presence of chemical groups and precursors which may be present in a given sample. ALL RESULTS SHOULD BE CONFIRMED BY AN APPROVED ANALYTICAL LABORATORY. All Products must be administered in strict accordance with the specific instruction and reference materials that accompany the products for best results. Swabtek cannot anticipate all conditions for use of Products and does not accept responsibility for use or misuse in any particular application. Products have been designed for a variety of applications, under a variety of conditions, but are not designed or manufactured as a product for lethal or harmful purposes.
You must exercise your reasonable judgment to determine Product suitability for any specific use-case, and application of the Products’ presumptive analysis for their particular purposes. We advise you to review the reference materials relevant to the Product and complete the online training and certification process prior to use of any Product. Reference materials are available for all of Veriteque USA, Inc.'s products at the following link: www.swabtek.com/resources. Veriteque USA, Inc.'s online training and certification portal is available at the following link: www.swabtek.com/certification.
If Swabtek’s test swabs are used to collect a sample from a consumable item such as plant material or food, such item should NOT be consumed, regardless of outcome of the test, and should be disposed of in accordance with applicable laws. If Swabtek’s test swabs are used to collect a sample from a reusable product that users come into direct contact with such as a vape pen or pipe, such item should be cleaned thoroughly with soap and wiped dry prior to use.
Limited Warranty and Disclaimers.
- We warrant to you, our direct customer, that each Product manufactured by us and sold to you under these Terms will be free from material defects in workmanship and materials under normal use for one (1) year from the date of delivery (“Warranty”). You may not return a Product unless authorized by our Returns Authorization (RA) Department. If you believe your Product does not meet the Warranty, cease use immediately and contact Swabtek. If a Product proves to be defective in materials or workmanship within the Warranty period, we will repair or replace the defective Product and send it to you at our expense.
- The Warranty does not cover, and we have no responsibility, liability or obligation with respect to: (a) normal wear and tear, including chemical corrosion or decomposition; (b) accident, disaster or acts of nature (including extreme temperature, humidity, abrasives, dirt or corrosive material); (c) your fault or negligence or use of the Product other than as expressly permitted herein, or use in contravention of its documentation; (d) causes external to the Products; (e) storage, or handling in an improper, inadequate, or unapproved manner; or (f) modifications to or tampering with the Products.
- The Warranty extends to only the original purchaser. The remedies identified in this Section 5 are your sole and exclusive remedies, and our only liabilities, under the Warranty. EXCEPT FOR THE WARRANTY DESCRIBED IN THIS SECTION 5, WE DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO PRODUCTS, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR RELATING TO CUSTOM, USAGE OR TRADE. WE DO NOT WARRANT THAT PRODUCTS ARE ERROR-FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT. You acknowledge that you are responsible for your use of Products, including reliance upon results from such use, and that you will use professional care and judgment in using our Products and relying upon results. We have no liability or responsibility with respect to your reliance upon results from use of Products. You agree that you are not purchasing any Product from us in reliance upon any representation or warranty not specifically set forth in this Agreement, nor on the completion of the representations and warranties set forth herein or in any document or instrument referred to herein.
- Your Indemnity. You will indemnify, defend with competent and experienced counsel acceptable to us, and hold us and our subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders, agents and employees, harmless from and against any and all damages, liabilities, causes of action, suits, claims, demands, losses, fines, penalties, costs and expenses (including without limitation reasonable attorneys' fees) suffered or incurred by any of the foregoing entities or individuals arising from or in connection with (a) your negligence, misconduct, violation of applicable laws, breach of this Agreement, or noncompliance with Product documentation; (b) your misuse of Products.
- Intellectual Property. As between you and us, we exclusively own all intellectual property rights relating to, covering, claiming, included and/or embodied in, our Products. Our license, sale, loan or lease of Products to you grants you only a limited, nontransferable right under our intellectual property only for the specific intended use of the Products you bought, licensed, borrowed or leased from us and strictly in accordance with and for the term of this Agreement. You will not modify, change, remove, cover or otherwise obscure any trademarks, logos, trade or service marks on Products, and you will not reverse engineer Products. Nothing in this Agreement limits our ability to enforce our intellectual property rights.
- Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SWABTEK WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, COSTS OF COVER, LOST PROFITS, LOST DATA, LOSS OF BUSINESS, LOSS OF GOODWILL OR LOSS OF REVENUE, THAT YOU OR A THIRD PARTY MIGHT INCUR UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THAT MAY ARISE FROM OR IN CONNECTION WITH OUR PRODUCTS, EVEN IF WE HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT THIS SENTENCE WILL NOT LIMIT DAMAGES CAUSED BY OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. IN ADDITION AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, SWABTEK’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR ANY PRODUCT, IS LIMITED TO THE AMOUNT YOU PAID TO SWABTEK UNDER THE ORDER UNDER WHICH THE LIABILITY AROSE.
- Export Restrictions. You acknowledge that each Product and any related technology, including technical information we supply you, including those contained in product documents (collectively “Items”), is subject to U.S. government export controls. The export controls may include, among others, those of the Export Administration Regulations of the U.S. Department of Commerce (the “EAR”), which may restrict or require licenses for the export of Items from the United States and their re-export from other countries. You must comply with the EAR and all other applicable laws, regulations, laws, treaties, and agreements relating to the export, re-export, and import of any Item.
- Miscellaneous. This Agreement is made and entered into for the sole protection and benefit of the parties hereto, and no other person or entity shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with this Agreement. The Agreement and performance under it will be governed by the laws of the State of California, United States, without reference to choice of law provisions, and all actions brought to enforce or interpret the Agreement and any all disputes hereunder or in connection herewith, including any negotiations relating thereto, shall be heard exclusively in the state and federal courts located in San Diego, California, which courts have exclusive jurisdiction over all disputes relating hereto. The U.N. Convention on Contracts for the International Sale of Goods is hereby expressly excluded. IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT TO THE MAXIMUM ALLOWED BY APPLICABLE LAW. We will not be responsible or liable for failing to perform our obligations under the Agreement to the extent such failure is caused by, or to the extent we cannot perform due to, circumstances beyond our reasonable control, including without limitation acts of God and nature, embargoes, war, acts of war (whether war be declared or not), terrorism, insurrections, riots, civil commotions, strikes, lockouts, or other labor disturbances, government actions, fire, earthquakes, floods, epidemics, pandemics (whether declared or not), and any actions we take to comply with applicable laws, directives, pronouncements or guidelines issued by a governmental entity relating to pandemics, such as quarantines and sheltering in place. In certain situations, we may use our reasonable judgment and apportion Products then available for delivery fairly among our customers, or may terminate your order without liability to you. Our failure to exercise any rights under the Agreement is not a waiver of our rights to damages for your breach of contract and is not a waiver of any subsequent breach. If any provision or part of the Agreement is found by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions of the Agreement. This Agreement binds the parties’ successors and permitted assigns. Headings are for convenience only and shall not be used in the interpretation of these Terms. Any notice or communication required or permitted under these Terms must be in writing and will be deemed received when delivered by commercial courier, or 3 business days after being sent by certified mail, postage prepaid, to a party’s specified address. Notices to Swabtek must be sent to the attention of its General Counsel. No waiver, consent, modification, amendment or changes to the terms of this Agreement will be binding unless in writing and signed by both parties. Our failure to object to terms contained in any subsequent communication from you is not a waiver or modification of this Agreement.