LEGAL Terms and Conditions
- Entire Agreement. By purchasing products and/or services from Novir, LLC, its subsidiaries and/or affiliates, as may be applicable (collectively, “Novir”), you agree to be bound by and accept the terms and conditions contained herein (this “Agreement”). If you have signed a formal written agreement between you and Novir governing your purchases, that written agreement shall govern your purchases, including purchases from our secure website(s) (the “Ordering Site”), except as otherwise provided for in any such agreement. In the absence of such an agreement or in the event such agreement is silent as to a particular term or condition, the terms and conditions contained in this Agreement shall control and shall apply to all of your purchases, including, but not limited to, online purchases from our Ordering Site, and may NOT be altered, supplemented, or amended by you through the use of any other document(s) unless otherwise set forth herein. These terms and conditions constitute the final written expression of the agreement between you and Novir regarding the products and/or services and are a complete exclusive statement of those terms. Any attempt to alter, supplement, or amend this Agreement, or to enter an order for product(s) which is (are) subject to additional or altered terms and conditions, will be null and void without the need for further action by Novir, unless otherwise agreed to in a written agreement signed by both you and Novir. Any terms, conditions, negotiations or understandings between you and Novir which are not contained herein shall have no force or effect unless in writing and signed by an authorized representative of Novir and expressly stating Novir’s intent to modify these terms and conditions. This Agreement does not supersede, waive or otherwise affect any security agreements, guarantees, credit applications or other agreements between you and Novir, none of which may be amended except by a writing signed by each party. You acknowledge and agree that Novir reserves the right to amend these terms and conditions in its sole discretion as it sees fit from time to time.
- Acceptance. If this document is deemed an acceptance of a prior offer by you, such acceptance is limited to the express terms and conditions contained herein. Novir’s acceptance of your prior offer is expressly conditioned on your assent to all of the terms and conditions set forth herein. You shall be deemed to have made an unqualified acceptance of these terms and conditions on the earliest to occur of the following: (a) Novir’s receipt of a copy of these terms and conditions or a document incorporating them, signed by you; (b) your acknowledgment of, or submission of a purchase order in response to, Novir’s quotation, acknowledgment, invoice, or terms and conditions; (c) your payment of any amounts due hereunder; (d) your delivery to Novir of any material to be furnished by you; (e) Novir’s delivery of the products, or of your products or parts on which services were performed; (f) failure by you to notify Novir to the contrary within ten (10) days of receipt of these terms and conditions or a document incorporating them; or (g) any other event constituting acceptance under applicable law.
- Price. All prices are F.O.B. Novir’s shipping point, unless otherwise stated on the quotation or acknowledgment. Prices are subject to change by Novir without notice. Any additional costs incurred by Novir in connection with or arising out of the manufacture, sale or distribution of product, including, but not limited to, increases in labor, freight and materials cost before shipment of order and applicable overhead, may be invoiced to you and you agree to pay same. Premium time as required by you will be invoiced as an extra item. You will pay when due any sales, use, excise, gross receipts, or value-added taxes, or other federal, state, or local taxes or other surcharges or assessments (other than any tax based on the net income of Novir or imposed upon inventory held by Novir in its warehouses) that Novir is at any time obligated to pay or collect based on, or in any way levied on, the sale of products and/or services, or the products or any services related thereto. In addition, you will be obligated to pay all interest or penalties assessed by reason of your failure to comply with your obligations hereunder. If Novir pays any amounts which you are obligated to pay, then you will promptly reimburse Novir in an amount equal to the amount so paid by Novir, in addition to any other charges as applicable.
- Pricing Errors. Pricing errors may occur on the Ordering Site from time to time, on items sold by Novir, or items sold by third-party sellers. Novir attempts to correct all pricing errors promptly after discovery or after Novir receives notice of an error. Novir reserves the right to cancel any orders containing pricing errors, with no further obligations to you, even after your receipt of an order confirmation or shipping notice from Novir. Any payments you make to Novir for orders that are cancelled due to pricing errors will be refunded.
- Payment Terms. All payments shall be made in full, in good funds, and in accordance with the payment terms on your invoice, via ACH direct debit or other payment forms acceptable to Novir. Novir’s acceptance of partial or delinquent payment shall not constitute Novir’s waiver of its rights under this Agreement. Until product is paid for in full, Novir retains, and you hereby grant to Novir, to the extent allowed by law, a security interest in the ordered product. You agree to execute such documents and take such actions as may be required by Novir to perfect the security interest granted herein and Novir’s interest. Novir may assess a service charge calculated at the rate of 1.5% per month (or the maximum rate allowed by law, if such rate is less than 1.5% per month) on any amount not paid to Novir when due. Failure or delay by Novir to invoice you for any such service charge will not waive Novir’s right to receive the same. In the event of default in payments on any invoices, Novir shall have the right to: (a) terminate Novir’s obligations hereunder; (b) declare all invoices immediately due and payable; (c) suspend or discontinue any future work; and/or (d) repossess the products or parts on which services were performed. You agree to pay all out-of-pocket expenses, including attorneys’ fees and costs, incurred by Novir to collect any amounts due from you or to otherwise enforce any of the terms stated herein. Novir (including its affiliates, subsidiaries, parent or related entities, individually or collectively) may exercise a right of set-off against any and all amounts due to you. Novir shall be deemed a single creditor for purposes of this section.
- Shipment and Delivery. Orders are not binding upon Novir until accepted by Novir. Novir reserves the right to refuse service to anyone. Novir will indicate its acceptance of an order by issuing an invoice or by shipping the ordered product to you. Title to and all risks of loss or damage to the products to be sold by Novir to you shall pass to you F.O.B. shipping point. In the absence of specific instructions, Novir shall select the carrier in its sole discretion. You assume all risk of loss in shipping and all liability for loss or damages, whether direct, indirect, consequential or otherwise, due to delays once the products have been delivered to the carrier. Shipment dates are Novir’s best estimate of the time of shipment from its factor. Novir will use reasonable efforts to meet the scheduled dates, but does not guarantee to do so. Time for delivery shall not be of the essence. Failure by Novir to make any shipment as scheduled does not constitute a cause for cancellation and/or damages.
- Contingencies. Novir shall be excused from its obligations hereunder in whole or in part to the extent its performance is delayed or prevented by strikes, work stoppages or disputes, epidemic and/or pandemic including COVID-19, fires, floods, war (declared or undeclared), riots, loss or destruction of product, non-availability or delays of transportation, embargoes, accidents, delay or failure of Novir ‘s suppliers to make delivery of material, shortages of material or labor, restrictions, limitations, obligations, taxes, assessments, duty or fee imposed by any government or governmental authority, domestic or foreign, or any other cause beyond Novir’s control. In such circumstances Novir ‘s obligations hereunder shall be suspended for so long as any such contingency continues, and you agree to extend, and are deemed to extend, for a corresponding period, any letters of credit or trade acceptance opened by you in respect to such shipment or delivery, provided, however, that if any shipment or delivery hereunder shall be so prevented for more than ninety (90) days, either Novir or you shall have the right to cancel the contract, but only with respect to such shipment or delivery, by written notice to the other.
- Cancellation. Orders once placed with and accepted by Novir may be cancelled only with the written approval of an authorized representative of Novir, subject to any other cancellation permitted in this Agreement. In the event of cancellation of this order by either party, you shall pay to Novir its reasonable costs and expenses (including restocking costs), plus Novir’s usual rate of profit for similar work. Novir may, from time to time, change the services without consent of you, provided that such changes do not materially affect the nature or scope of the services, or the fees or any performance dates set forth in Novir’s order confirmation. Novir reserves the right to change the price, terms of payment and delivery dates for any products or services affected by any modifications to which it consents.
- Termination. Novir may terminate any order for products placed with Novir pursuant to separate agreement to the extent allowed under such agreement or applicable law. Upon such termination, you agree to waive all claims for damages and accept as your sole remedy for termination the refundable portion (if any) of any amounts paid for the purchase of Novir’s products and/or services that have not been delivered and/or performed, provided such costs do not exceed the agreed-upon price pursuant to such agreement. Any claim for payment not asserted within ninety (90) days from the date of such termination shall be deemed to have been waived by you.
- Credit. Novir may at any time, in its sole discretion, limit the amount of credit to be extended to you and cancel any order with respect to all or any undelivered product if Novir shall deem such action advisable for credit reasons. You hereby represent and warrant that you are solvent and agree that such representation and warranty shall be deemed repeated upon each order and/or delivery hereunder.
- Quality Assurance; Assistance. Novir shall have no obligation to ensure that any products purchased from Novir meet any special quality assurance specifications and/or other requirements unless such specifications and/or other requirements are required by law or are set forth in a separate agreement and expressly agreed-upon by Novir. Unless otherwise required by law or expressly agreed in writing by Novir, Novir assumes no obligation or liability for any advice (technical or otherwise) provided by Novir with respect to the use of such products or for any results occurring as a result of the application of such advice.
- Generic Substitutions. You hereby authorize Novir to substitute one generic manufacturer’s product for the equivalent product of another generic manufacturer without prior notice to you.
- Returns. You agree that any products that are returned will be handled in accordance with, and shall be subject to, Novir ‘s applicable then-current Returned Goods Policy. Any products not returned shall remain your full responsibility and shall be deemed to have been provided in good and acceptable condition.
- Use of Products. You warrant that you have all required governmental licenses, permits and approvals required to purchase, use and/or store the products you purchase from Novir and that all your purchases from Novir are for your “own use”, as such term is defined in judicial or legislative interpretation. Novir may immediately terminate your ability to make purchases if Novir determines that you or any facility owned, operated, or managed by you, directly or indirectly, has breached this “own use” limitation. You agree to comply with all laws, rules and regulations applicable to the possession and use of the products purchased hereunder.
- Indemnity. To the maximum extent allowed by law, you agree to defend and indemnify Novir and its employees and agents against all sums, costs, liabilities, losses, obligations, suits, actions, damages, penalties, fines, interest and other expenses (including investigation expenses and attorneys’ fees) that Novir may incur or be obligated to pay as a result of your (a) negligence, use, ownership, alteration, modification, transfer, transportation or disposal of any products purchased from Novir; (b) violation or alleged violation of any Federal, state, county or local laws or regulation; (c) breach of this Agreement or any other agreement between you and Novir; or (d) death of or bodily injury to Novir Personnel (as defined below) while performing any services at your premises to the extent caused by your negligence, gross negligence, or willful misconduct in your maintenance of your premises. This provision shall survive this Agreement or any other agreement between you and Novir to the fullest extent of time allowed under any applicable statute of limitations.
- Insurance. If you have selected one or more of Novir’s services that require Novir Personnel to be physically present at your premises, you shall maintain each of the following policies of insurance: (i) workers’ compensation insurance (including employers’ liability insurance) as required by applicable Laws; (ii) comprehensive general liability insurance, endorsed to include products and completed operations, advertising liability, bodily injury, property damage and contractual liability coverage for at least $2,000,000 per occurrence and $3,000,000 in the aggregate, at all times during the term of any and all agreements and/or open orders with Novir that require Novir Personnel to be physically present at your premises.
- Warranty. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE, WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. FURTHER, NOVIR MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO PERFORMANCE OR CAPABILITIES OF PRODUCTS, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
- Limitation of Liability. IN NO EVENT SHALL NOVIR BE LIABLE, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OR LOSSES OF ANY NATURE OR FOR LOST REVENUE, LOST PROFITS, LOST BUSINESS OR LOSS OF DATA OR DIMINUTION IN VALUE, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER NOVIR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF YOUR PURCHASES FROM NOVIR, THE USE OF PRODUCTS, OR NOVIR’S FAILURE TO DELIVER ORDERED PRODUCTS. IN NO EVENT SHALL NOVIR’S LIABILITY FOR ANY ORDER OR PRODUCT OR SERVICES UNDER THIS AGREEMENT EXCEED THE FEES ACTUALLY PAID BY YOU FOR SUCH ORDER OR PRODUCT OR SERVICES. THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN YOU AND NOVIR. THE PRICE PAID FOR THE PRODUCTS/SERVICES PROVIDED TO YOU BY NOVIR REFLECTS THE ALLOCATION OF RISK AND BUT FOR THIS ALLOCATION AND LIMITATION OF LIABILITY, NOVIR WOULD NOT HAVE ENTERED INTO SUCH AGREEMENTS BETWEEN YOU AND NOVIR. NOVIR’S SOLE OBLIGATION AND YOUR EXCLUSIVE REMEDY FOR BREACH HEREUNDER WILL BE, AT NOVIR’S OPTION, TO REPAIR OR REPLACE THE PRODUCT. NOVIR’S LIABILITY TO YOU SHALL CEASE ONCE ANY FURTHER PROCESSING, ASSEMBLING OR ANY OTHER WORK HAS BEEN UNDERTAKEN BY YOU OR ANY THIRD PARTY.
- Discount Disclosure. If you receive any “discounts or other reductions in price” under Section 1128B(b)(3)(a) of the Social Security Act (42 U.S.C.1320- 7b(b)(3)(a)) from Novir, you may be required to disclose the discounts or reductions in price under any state or federal program which provides cost or charge-based reimbursement to you for the products or services you buy from Novir, or as otherwise requested or required by any governmental agency.
- Data Ownership. You acknowledge and agree that all information and data generated in the performance of Novir’s services shall be proprietary to and owned exclusively by Novir unless otherwise set forth in such agreement. You agree not to share or disclose such information and data to any third party without Novir’s prior written consent, or as otherwise required or permitted by applicable laws or such agreement by you and Novir, unless otherwise set forth in such agreement. Upon request, Novir will provide you with a de-identified aggregate data set for the services provided.
- HIPAA. If Novir determines that you are a “Business Associate” of Novir, within the meaning of HIPAA, then you will agree to enter into Novir’s standard “Business Associate Agreement” as also defined and described under HIPAA.
- Access to Premises. If you have selected one or more of Novir’s services that require Novir and its employees, agents and/or independent contractors (collectively, “Novir Personnel”) to be physically present at your premises, you hereby grant the Novir Personnel prior authorization, permission, and a license to enter the premises that you may from time to time designate for the purpose of the Novir Personnel performing services. You will provide the premises at which any testing or vaccination will occur in a condition that is compliant with all Laws, including, without limitation, providing private areas within your premises, and the placement of screens or temporary privacy structures.
- Confidential Information. You acknowledge that all Confidential Information which may be disclosed to you by Novir shall at all times, both during and after termination of this Agreement or of any agreement between you and Novir for any reason, remain Novir’s exclusive property and you shall not acquire any interest in it. “Confidential Information” means (a) trade secrets and all knowledge and information, not generally known in the industry, which provides Novir with a competitive advantage or relating to its products, services, production methods, designs, specifications, processes, formulations, technology, sales methods, customer lists, customer uses and requirements and other confidential business information; (b) any information Novir provides to you, or which you otherwise access, perceive or observe in connection with any agreement between you and Novir, including, but not limited to, client lists, client information, research, product or service plans, business practices, agreement terms, products, services, employees, suppliers, customers, technology or other strategic partners, stockholders, markets, software, know-how, developments, inventions, processes, designs, drawings, engineering, marketing, finances, analyses or studies and all tangible and intangible embodiments thereof of any kind whatsoever; and (c) all information on our Ordering Site, this Agreement, and your purchase terms, including, but not limited to, price. Except as necessary to perform your duties hereunder, you shall not use or disclose any Confidential Information. Nothing herein shall limit or negate the common or statutory law of torts or trade secrets where it provides Novir with broader protection than that provided herein. Upon Novir’s written request, you agree to promptly return to Novir all tangible items containing or consisting of the Confidential Information and all extracts and copies thereof (including electronic copies) or, at Novir’s option, to destroy or delete, as appropriate, all such tangible items, extracts and copies and to provide written certification to Novir of such action. That portion of the Confidential Information or any modification thereof which consists of analyses, compilations, studies or other documents prepared by or for you and that is not returned to Novir will be destroyed and no copy thereof will be retained and you (or any authorized officer supervising such destruction) will certify in writing that such destruction has occurred.
- Intellectual Property Rights. All of Novir’s Intellectual Property Rights are and shall remain Novir’s sole property and you agree not to take or permit any action contradicting Novir’s rights thereto. Except as specifically provided below, no licenses, express or implied, are provided to Novir’s Intellectual Property Rights. “Intellectual Property Rights” include, without limitation, any copyright, patent, registered or unregistered design, logo, trademark, trade dress, trade name or other designation, translation of trade name into another language, technology, know-how, and any similar rights or applications for rights in any of the foregoing in any part of the world owned or used by Novir or any of its affiliates, and any goodwill relating thereto. Novir’s rights under this Agreement (including the Intellectual Property Rights) shall be enforceable by injunctive relief and/or a decree of specific performance. Such remedy is cumulative and nonexclusive. Nothing in this Agreement is meant to restrict established patent exhaustion or first sale principles.
- Dispute Resolution. This Agreement will be governed and interpreted in accordance with the laws of the State of Wisconsin as if entirely made therein. If a dispute arises out of this Agreement, you and Novir will attempt to resolve it through informal, good faith negotiation. If you and Novir are unable to do so within 90 days (or such other period of time as agreed), you or Novir may initiate arbitration proceedings as described herein. All claims and disputes (together, “Disputes”) arising between you and Novir out of this Agreement, including this agreement to arbitrate, will be submitted to final and binding arbitration conducted by a single arbitrator under the Rules for Commercial Arbitration of the American Arbitration Association. The arbitrator will be selected as permitted under such rules and you and Novir may elect to conduct arbitration remotely or virtually if and as permitted. Arbitration awards may be enforced in any court of competent jurisdiction. Any arbitration arising out of or relating to this Agreement shall be in Milwaukee, Wisconsin.
- Notice. Any notice or other document required or permitted to be given to Novir hereunder will be in writing and will be sent by email (courtesy copy only) and first-class mail or express courier, to Novir at the following address. Any notice given hereunder will be deemed to be effective only upon receipt by Novir:Novir, LLC
309 N. Water St., Suite 370
Milwaukee, WI 53202
Attn: Alexander Kempe, President
- Governing Law. This Agreement and all communications, disputes and performance related hereto shall be governed by and construed according to the internal laws of the State of Wisconsin without regard to conflict of laws principles.
- Assignment. No rights hereunder or arising out of these terms and conditions may be assigned by you without the express written consent of Novir. Novir may assign this Agreement without your consent. This Agreement will bind and inure to the benefit of you and Novir and such successors and permitted assigns.
- No Waiver. No waiver by Novir of any default or failure by Novir to enforce a right hereunder shall be deemed a waiver of any right or prior or subsequent default.
- Severability. If any term, condition or provision of this Agreement is held to be illegal, invalid or unenforceable, the applicable term, condition or provision will be construed in accordance with applicable Laws as nearly as possible to reflect the original intentions of you and Novir, and the remainder of the provisions will remain in full force and effect.
- Independent Contractor. You are and shall remain an independent contractor and neither you nor any of your employees or agents shall be considered an employee of Novir. Unless explicitly set forth in a written agreement with Novir, no agreement with Novir will create or is intended to create any other relationship between you and Novir, including any partnership, agency, joint venture, franchise, sales representative or employment relationship.
- Amendment. This Agreement may be amended by Novir at any time without prior notice or consent.
- Miscellaneous. Capitalized terms defined in their singular form will be considered defined in their plural form and vice versa. You and Novir use the term “will” to indicate a future mandatory obligation. Section headings are for convenience only and will not affect interpretation of this Agreement. You acknowledge that Novir may maintain a copy of this Agreement in electronic form and agree that a copy reproduced from such electronic form or by any other reliable means (for example, photocopy, image or facsimile) shall in all respects be considered equivalent to an original. Furthermore, you agree that a copy of this Agreement shall be admissible evidence irrespective of the best evidence rule or any other state or federal evidence rules.