Terms & Conditions of Sale

These Terms and Conditions of Sale (“Terms”) govern the sale of products (the “Products”) by Clever Carnivore, Inc. d/b/a BMEM Bio (“BMEM Bio”) to the purchaser of such Products (hereinafter, such purchaser is referred to as “Buyer”). BMEM Bio’s acceptance of any order is expressly subject to Buyer’s assent to each and all of these Terms. Buyer assents to these Terms by submitting an order or a purchase order, by accepting all or any of the Products, or by paying for all or any of the Products. No additional or different terms, conditions or warranties and no agreement or understanding, oral or written, in any way purporting to modify these Terms, whether contained in Buyer’s purchase order or other correspondence, shall be binding on BMEM Bio unless hereafter made in writing, signed by an authorized representative of BMEM Bio. Buyer is hereby notified of BMEM Bio’s express rejection of any terms inconsistent with these Terms or to any other terms proposed by Buyer. Neither BMEM Bio’s subsequent lack of objection to any terms, nor the delivery of the Products, shall constitute an agreement by BMEM Bio to any such terms. If the parties have signed a contract applicable to the sale of certain Products, the terms of such contract shall prevail to the extent they are inconsistent with these Terms.

1. Price; Payment.

a. Unless otherwise agreed to by BMEM Bio in writing, all prices quoted are exclusive of transportation, insurance, taxes, customs fees, duties, and other charges related thereto, and Buyer is solely responsible for all such taxes and charges and shall hold BMEM Bio harmless therefrom. In the event BMEM Bio pays or is required to pay any such taxes or other charges, Buyer shall reimburse BMEM Bio therefore on demand. Buyer shall provide BMEM Bio with valid, properly completed exemption certificates for any tax from which Buyer claims an exemption. Unless otherwise stated in writing by BMEM Bio, BMEM Bio reserves the right to change prices and other terms to those in effect at time of shipment with notice to you at time of shipment request. Any quote issued by BMEM Bio to Buyer will remain valid for thirty (30) days from the date of the quote, unless otherwise stated in the applicable quote.

b. Unless otherwise required or agreed to by BMEM Bio, Buyer shall pay all invoiced amounts within thirty (30) days from the date of BMEM Bio’s invoice. Payment for all online orders must be made by credit card. In no event is Buyer authorized to set off or deduct any amounts from the amounts owed BMEM Bio. All purchases and related payments will be in US Dollars. 

c. If Buyer fails to pay any amounts when due, Buyer shall pay BMEM Bio interest thereon at a periodic rate of one and one-half percent (1.5%) per month (or, if lower, the highest rate permitted by law), together with all costs and expenses (including without limitation reasonable attorneys’ fees and disbursements and court costs) incurred by BMEM Bio in collecting such overdue amounts or otherwise enforcing BMEM Bio’s rights hereunder. BMEM Bio reserves the right to require from Buyer full or partial payment in advance, or other security that is satisfactory to BMEM Bio, at any time that BMEM Bio believes in good faith that Buyer’s financial condition does not justify the terms of payment specified. In addition to all other rights and remedies available to BMEM Bio (which BMEM Bio does not waive by the exercise of any rights hereunder), BMEM Bio also reserves the right to cancel or stop delivery of Products in transit and withhold shipments in whole or in part if you do not pay us when due, or if you otherwise do not perform your obligations under these Terms. 

2. Shipment and Title. 

a. Unless otherwise agreed to by BMEM Bio in writing, BMEM Bio will deliver the Products, FCA (Incoterms® 2020) shipping point, using BMEM Bio’s standard methods for packaging and shipping same. Buyer (i) gives its consent for BMEM Bio to arrange for carriage and packaging for all Products supplied hereunder on Buyer’s behalf; and (ii) waives its right to arrange carriage or to give BMEM Bio and specific instructions regarding carriage. Buyer shall pay or reimburse BMEM Bio for all freight charges. Shipping or delivery dates are estimates only. BMEM Bio will not be liable for any delays, loss, or damage in transit, and failure to deliver within the time estimated, if any, will not be a material breach of contract on BMEM Bio’s part. Buyer shall assume all risk and liability for loss, damage, or destruction of the Products after the delivery to the carrier. 

b. BMEM Bio may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer will pay for the units shipped whether the shipment is in whole or partial fulfillment of Buyer’s order. Buyer is responsible for obtaining any import licenses and other consents. 

3. Cancellations & Changes.

Once an order has been placed, Buyer may not cancel or change the order without BMEM Bio’s prior written consent. BMEM Bio may impose cancellation and/or change fees in connection with any approved cancellation or changes. 

4. Nonconforming Products and Return.

a. As used in this section, “Nonconforming Products” means only those delivered Products, or quantity thereof, which are different than identified in the applicable invoice or order confirmation provided by BMEM Bio. Buyer shall inspect Products within three (3) business days of receipt thereof (the “Inspection Period”). If, prior to the end of the Inspection Period, Buyer fails to notify BMEM Bio in writing of any claim that received Products constitute Nonconforming Products and to furnish such evidence and/or other documentation as required by BMEM Bio, then Buyer will be deemed to have accepted the Products. BMEM Bio has the right to verify any claims and reserves the right to inspect the Products. 

b. If notified in accordance with Section 4(a) and BMEM Bio determines, in its reasonable discretion, that the Products are Nonconforming Products, then BMEM Bio shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit the price for such Nonconforming Products or, in the event of partial delivery, adjust the invoice to reflect the actual quantity delivered. At BMEM Bio’s request and direction, Buyer will return the Nonconforming Products at BMEM Bio’s expense or dispose of the Nonconforming Products in a manner approved by BMEM Bio, and upon request Buyer shall provide BMEM Bio with a certificate of destruction of such Nonconforming Product. Any returns must be in compliance with BMEM Bio’s instructions, and the returned Products must be unopened, in their original packaging with the original label affixed, and unaltered in form and content. 

c. Buyer acknowledges and agrees that the remedies set forth in Section 4(b) are Buyer’s exclusive remedies for delivery of Nonconforming Products. Except as set forth in this Section 4, Buyer has no right to return the Products to BMEM Bio.

5. Product Use; Intellectual Property. 

a. The Products are intended and sold for research use only, and are not for use in any diagnostic, manufacturing, therapeutic or commercial applications or procedures. BMEM Bio does not submit the Products for regulatory review by any governmental body or other organization, and does not validate the Products for clinical or diagnostic use, for safety and effectiveness, or for any other specific use or application. Buyer shall use the Products only for its internal research purposes. Buyer shall not transfer, resell, or otherwise distribute the Products (or any portion thereof) to any third party, or modify the Products for resale to a third party, in each case whether alone or in combination with other materials.

b. As between Buyer and BMEM Bio, BMEM Bio exclusively owns all intellectual property rights relating to the Products, including but not limited to all formulations and methods (“BMEM Bio Technology”). Nothing in these Terms or Buyer’s purchase or possession of the Products shall be deemed or construed (i) as a license to or grant of any BMEM Bio Technology or any other intellectual property, whether implied, by estoppel or otherwise, or (ii) as a license or grant of any right to manufacture or to have manufactured the Products. Buyer shall not reverse engineer, analyze or otherwise attempt to derive the properties, composition, construction or method of manufacture of any of the Products, including but not limited to, analysis by physical, chemical or biochemical means and shall not cause a third party to do the same. Buyer shall not modify, change, remove, cover or otherwise obscure any of BMEM Bio’s brands, trade or service marks on the Products. Nothing in these Terms limits BMEM Bio’s ability to enforce its intellectual property rights.

c. Buyer (i) shall use the Products solely as permitted by, and in accordance with, these Terms and all instructions and documentation provided by BMEM Bio, (ii) is solely responsible for confirming Buyer’s use of the Products complies with applicable laws, regulations and government policies, and (iii) is solely responsible for confirming the Products are suitable for Buyer’s particular purpose. 

6. Disclaimer of Warranties.

BMEM BIO SELLS ALL PRODUCTS “AS IS,” “WHERE IS,” AND “WITH ALL FAULTS,” AND BMEM BIO DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 

7. Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BMEM BIO BE LIABLE TO BUYER OR ANY OTHER PARTY, UNDER ANY CIRCUMSTANCES, FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PRODUCTION, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITY), OR ANY OTHER CLAIMS FOR DAMAGES, EVEN IF BMEM BIO IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR RELATED TO THESE TERMS OR THE USE OF, MISUSE OF, OR INABILITY TO USE THE PRODUCTS. IN ADDITION, BMEM BIO’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND/OR ANY PRODUCT IS LIMITED TO THE AMOUNT BUYER PAID FOR THE SPECIFIC PRODUCT PURCHASED GIVING RISE TO THE LIABILITY.

8. Indemnification.

Buyer shall, at its own expense, indemnify, defend and hold BMEM Bio, its directors, officers, employees, representatives, agents, licensors, successors and assigns (“BMEM Bio Indemnitees”), harmless from and against any and all liabilities, claims, losses, costs, damages and expenses (including, reasonable attorneys’ fees) (collectively, “Losses”) that the BMEM Bio Indemnitees may incur, or be liable for, in any way arising out of or relating to (a) any breach by Buyer of, or failure of Buyer to comply with, these Terms, (b) any use, misuse or modification of the Products, (c) any failure of Buyer to comply with good laboratory practice, laws, regulations, guidelines or decisions in the handling or use of the Products, (d) actual or alleged infringement from the use of Product with materials, equipment or software not supplied by BMEM Bio where the Product itself would not be infringing, or (e) the negligence, recklessness or misconduct of Buyer, its affiliates, or their respective agents, employees, representatives or contractors.

9. Export Control.

Buyer acknowledges that the Products and any related technology, including technical information supplied by BMEM Bio to Buyer, are subject to US export control laws and regulations. Buyer must comply with all applicable laws, regulations, treaties, and agreements relating to the export, re-export or import of the Products and related technology. Without limitation, Buyer will not, directly or indirectly, sell, export, re-export, or transfer any Product or related technology to any destination, entity, or person prohibited by the laws or regulations of the US. 

10. Choice of Law and Venue; Waiver of Jury Trial.

These Terms and the transactions contemplated hereunder shall be governed by the laws of the State of Illinois, without regard to its conflict of laws principles. The parties agree that any dispute arising out of or in connection or associated with these Terms and the transactions contemplated hereunder shall be brought exclusively in the state and federal courts located in Chicago, Illinois and each party hereby consents and submits to the exclusive jurisdiction of such courts. The U.N. Convention on International Sale of Goods shall not apply to these Terms and the transactions contemplated hereunder. EACH PARTY IRREVOCABLY WAIVES ITS RESPECTIVE RIGHTS TO TRIAL BY JURY IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT.

11. Entire Agreement; Amendments.

These Terms together with any quote, invoice or order confirmation issued by BMEM Bio shall constitute the entire agreement between the parties on the subject matter hereof and supersede all prior discussions, agreements and understandings of every kind and nature between the parties. No modification of or amendment to these Terms shall be effective unless in writing and signed by both parties.

12. Severability; Survival.

The illegality or unenforceability of any provision of these Terms shall not affect the validity and enforceability of the remaining provisions hereof. Should any provision of these Terms be deemed unenforceable by a court of competent jurisdiction then such clause shall be re-construed to provide the maximum protection afforded by law in accordance with the intent of the applicable provision. Any provision contained herein, which by its nature should survive any termination of these Terms shall survive, including, without limitation, Sections 5, 6, 7, 8, 10 and 12.

13. Assignment.

These Terms, and any associated rights or obligations, may not be assigned or otherwise transferred by Buyer without BMEM Bio’s prior written consent. These Terms may be assigned by BMEM Bio without restriction. These Terms are binding upon and will inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns.

14. Waiver.

The failure of BMEM Bio to enforce any of the provisions of these Terms will not be construed to be a waiver of any provisions hereunder nor will any such failure prejudice the right of BMEM Bio to take any action in the future. Any waiver must be made in writing and signed by an authorized representative of BMEM Bio.

15. Confidentiality.

All information, including but not limited to scientific, technical, financial or business information, furnished or made available by BMEM Bio to Buyer shall be held in confidence by the Buyer. Buyer agrees not to use such information or disclose such information to others (directly or indirectly) without BMEM Bio’s prior written consent. The obligations in this paragraph will not apply to any information which (a) at the time of disclosure was or thereafter becomes, generally available to the public by publication or otherwise through no breach by the Buyer of any obligation herein, (b) the Buyer can show by written records was in the Buyer’s possession prior to disclosure by BMEM Bio, or (c) is legally made available to the Buyer by or through a third party having no direct or indirect confidentiality obligation to BMEM Bio with respect to such information.

16. Notices.

All notices under these Terms shall be in English and shall be in writing and sent to the other party either by (i) overnight delivery through a reputable third-party courier; or (ii) electronic mail (email) sent “read receipt” and “delivery receipt”. With respect to BMEM Bio’s receipt of electronic notice set forth in (ii) above, such notice shall only be deemed received once Buyer receives a confirmation of “read receipt” and “delivery receipt”. Notices to Buyer shall be sent to the address and email set forth in the applicable invoice or order confirmation or to such other address/email as may be specified in writing by Buyer to BMEM Bio. Notices to BMEM Bio shall be sent to the below address and email or to such other address/email as may be specified in writing by BMEM Bio to Buyer:

1551 W Homer St.
Chicago, IL 60642
sales@BMEM.bio

17. Force Majeure.

BMEM Bio will not be responsible or liable for failing to perform its obligations under these Terms to the extent caused by circumstances or events beyond its reasonable control, including acts of God, epidemics, pandemics, acts of war whether declared or undeclared, blockades, labor disputes (whether of BMEM Bio’s employees or the employees of others), raw material shortages and material increases in costs of raw materials. BMEM Bio may, during any period of shortage due to any of the above circumstances, allocate its available supply of Products among itself and its customers in such manner as BMEM Bio, in its judgment, deems fair and equitable.