Terms and Conditions

SALES ORDER TERMS AND CONDITIONS:

 1.        ACCEPTANCE OF PURCHASE ORDER:  These Terms and Conditions of Sale together with our acknowledgement of order and the terms of the Agreement (together, the "Agreement") constitute an acceptance by THIRD WAVE BIOACTIVES, LLC ("Third Wave") to provide the goods described on your ("Purchaser") purchase order (the "Products," and such purchase order, a “Purchase Order”), subject to the terms and conditions below and in our acknowledgement of order.  Third Wave's agreement to sell the Products is limited to the terms of this Agreement.  Purchaser shall be deemed to have made an unqualified acceptance of this Agreement on the earliest to occur of the following: (a) failure by Purchaser to notify Third Wave in writing of any objection which Purchaser may have to any provision of this Agreement within 5 days of receipt hereof; (b) Third Wave's first delivery of Product; or (c) any other event constituting acceptance under applicable law.  Any acceptance, confirmation, purchase order or the like sent by Purchaser with respect to this sale which states additional or differing terms from this Agreement shall operate as an acceptance of all terms and conditions hereof, and all such additional or differing terms sent by Purchaser shall be deemed proposals for material modification hereof, to which notice of objection is hereby given, and they shall not become part of this Agreement without Third Wave's express written assent thereto.

2.         PRICE: All prices are FOB Third Wave’s designated point of origin, unless otherwise specifically set forth in the applicable purchase order for Product(s). Prices stated are subject to change without notice in the event of (i) alterations in specifications, quantities, designs, or delivery schedules and/or (ii) increases in the cost of fuel, power, material supplied, or labor.

 3.        PAYMENT:  Purchaser shall pay Third Wave 100% of the invoice within 30 days from the date of invoice. Third Wave has the right to charge a late payment charge of the lesser of 18% per annum or the maximum annual rate allowed by law on any past due amounts. If Purchaser does not pay any amount due, Third Wave may, without prejudice to Third Wave's other lawful remedies: (a) declare immediately due and payable all Purchaser's obligations to Third Wave, (b) change credit or other terms for future deliveries, (c) suspend or discontinue any further deliveries until Purchaser pays all overdue amounts, or (d) repossess the Products. Purchaser agrees to reimburse Third Wave for all costs and fees incurred in collecting any sums owed to Third Wave, including reasonable attorneys' fees.

 4.        DELIVERY: Unless otherwise agreed to, delivery dates are approximate and subject to material and Product availability. Third Wave shall not be responsible for non-shipment of goods or delays in delivery or performance due to causes beyond its reasonable control, including, but not limited to, acts of God. Third Wave has the option to apply carrying charges, based on actual costs, to any unshipped balance after completion of the Agreement shipment period.

5.         LIMITED WARRANTY; DISCLAIMER OF OTHER WARRANTIES: Third Wave warrants to Purchaser that, at the time of delivery, the Products comply with the specifications for the Product, as such specifications were provided or designated by Third Wave.  Purchaser must make claims for breach of warranty in writing within 5-days of delivery.  Third Wave shall, at its option, either replace at its expense any Product(s) proved to Third Wave's reasonable satisfaction to be in breach of this section or refund to Purchaser any of the purchase price received by Third Wave for such Product(s).  Such warranty shall not apply in cases of damage in transit, negligence, abuse, failure to follow instructions, improper storage, accident, misuse, neglect or alteration by any party other than Third Wave or by physical environment.  THIRD WAVE'S AGGREGATE LIABILITY WITH RESPECT TO THIS AGREEMENT SHALL BE LIMITED AND SHALL IN NO EVENT EXCEED THE PURCHASE PRICE RECEIVED BY THIRD WAVE FOR THE DEFECTIVE PRODUCT(S).  THIRD WAVE MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, WHETHER WRITTEN, ORAL, STATUTORY, EXPRESS OR IMPLIED, CONCERNING THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.  IN NO EVENT SHALL THIRD WAVE BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER FOR BREACH OF ANY WARRANTY, FOR BREACH OR REPUDIATION OF ANY OTHER TERM OR CONDITION OF SALE, OR FOR LIABILITY ON THE BASIS OF NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF THIRD WAVE SHALL HAVE BEEN ADVISED IN ADVANCE OF THE LIKELIHOOD THEREOF.

6.         FORCE MAJEURE:  Neither party shall be in default hereunder by reason of any failure or delay in the performance of any obligation under this Agreement where such failure or delay arises out of any cause beyond the reasonable control and without the fault or negligence of such party.  Such causes shall include, without limitation, storms, floods, other acts of nature, fires, explosions, riots, war or civil disturbance, strikes or other labor unrest, embargoes and other governmental actions or regulations that would prohibit a party from ordering or furnishing Products or performing any other aspects of the obligations hereunder.  This section shall not apply to Purchaser's payment obligations hereunder.

7.         TERMINATION:  Third Wave may, upon written notice to Purchaser, immediately terminate this Agreement and any further obligations to make shipments hereunder if Purchaser fails to comply with the terms of this Agreement including (without limitation) in the event that Purchaser becomes insolvent or bankrupt, or is more than 45 days delinquent in payments to Third Wave.  Purchaser may not cancel or modify this Agreement except upon terms accepted in writing by Third Wave.  If Purchaser cancels or modifies this Agreement, Purchaser shall compensate Third Wave for all costs and damages resulting therefrom, including (without limitation) lost profits, allocable overhead, commodity market losses and all other incidental and consequential damages.

8.         MISCELLANEOUS:  No change, modification or amendment of this Agreement shall be binding upon the parties unless the same shall be in writing and signed by or on behalf of the parties hereto.  No waiver of or failure or omission to enforce any term or provision of this Agreement or any right or claim arising hereunder shall be deemed to be a waiver of any other term or provision hereof or any other right or claim arising before, concurrently with or after any such waiver, failure or omission or any event giving rise to any right or claim so waived or unenforced.  Neither party shall assign this Agreement without the prior written consent of the other party.  This Agreement shall bind and inure to the benefit of Third Wave and Purchaser and their respective successors and assigns.  The laws of the State of Wisconsin shall govern the rights and obligations of the parties hereunder without regard to conflict of laws principles.  Any cause of action, claim, suit or demand by either party shall be brought in a state or federal court situated in the State of Wisconsin.  Both parties irrevocably admit themselves to and consent to the jurisdiction of said court.  This Agreement constitutes the final written expression of the terms between the parties and is a complete and exclusive statement of those terms.