Life Science Refrigeration (“Seller”) hereby offers for sale to the buyer (” Buyer”) of its products listed on the face hereof (the “Products”) on the express condition that Buyer agrees to accept and be bound by the terms and conditions set forth herein. Any provisions contained in any document issued by Buyer are expressly rejected and if the terms and conditions in this Agreement differ from the terms of Buyer’s offer, this document shall be construed as a counter offer and shall not be effective as an acceptance of Buyer’s document. Buyer’s receipt of Products or Seller’s commencement of the services provided hereunder will constitute Buyer’s acceptance of this Agreement. Notwithstanding the foregoing, this Agreement shall not govern (i) sales pursuant to a separate fully integrated written agreement executed by signature by the Authorized Representative of Seller unless this Agreement is incorporated by reference therein) or (ii) to the extent, and only to the extent, the terms of this Agreement conflict with Buyer’s buying under Group Purchasing Organizations (“GPOs”) with the GPO terms and conditions accepted by Seller. With respect to sales to Buyer’s purchasing under GPOs, the terms and conditions of this Agreement will continue to govern unless the GPO terms and conditions are in direct conflict with any provision of this Agreement. Except as specifically provided above, this is the complete and exclusive statement of the contract between Seller and Buyer with respect to Buyer’s purchase of the Products. No waiver, consent, modification, amendment or change of the terms contained herein shall be binding unless in writing and signed by Seller and Buyer; provided however that Seller may update these terms and post them on Seller’s website and all orders issued after the date of updating Buyer will be governed by such updated terms. Seller’s failure to object to terms contained in any subsequent communication from Buyer will not be a waiver or modification of the terms set forth herein. All orders are subject to acceptance in writing by an authorized representative of Seller.
All prices published by Seller or quoted by Seller’s representatives may be changed at any time without notice. All prices quoted by Seller or Seller’s representative are valid for thirty (30) days, unless otherwise stated in writing. All prices for the Products will be as specified by Seller, or, if no price has been specified or quoted, will be Seller’s price in effect at the time of shipment. All prices are subject to adjustment on account of specifications, quantities, raw materials, cost of production, shipment arrangements or other terms or conditions which are not part of Seller’s original price quotation.
TAXES AND OTHER CHARGES
Prices for the Products exclude all sales, value added and other taxes and duties imposed with respect to the sale, delivery, or use of any Products covered hereby, all of which taxes and duties must be paid by Buyer. If Buyer claims any exemption, Buyer must provide a valid, signed certificate or letter of exemption for each respective jurisdiction.
Seller may invoice Buyer upon shipment for the price and all other charges payable by Buyer in accordance with the terms on the face hereof. If no payment terms are stated on the face hereof, payment shall be net thirty (30) days from the date of invoice. If Buyer fails to pay any amounts when due, Buyer shall pay Seller 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 Seller in collecting such overdue amounts or otherwise enforcing Seller’s rights hereunder. Extension of payment terms is subject to credit approval. Seller reserves the right to require from Buyer full or partial payment in advance or other security that is satisfactory to Seller, at any time that Seller believes in good faith that Buyer’s financial condition does not justify the terms of payment specified. Seller may place a credit hold and refuse to accept or fill any purchase orders issued by Buyer until all past due amounts are paid.
DELIVERY; CANCELLATION, CHANGES BY BUYER, OR RETURNS
The Products will be shipped to the destination specified by Buyer, F.O.B. Seller’s shipping point. Seller will have the right, at its election, to make partial shipments of the Products and to invoice each shipment separately. Seller reserves the right to stop delivery of Products in transit and to withhold shipments in whole or in part if Buyer fails to make any payment to Seller when due or otherwise fails to perform its obligations hereunder. All shipping dates are approximate only, and Seller will not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond Seller’s reasonable control. In the event of a delay due to any cause beyond Seller’s reasonable control, Seller reserves the right to terminate the order or to reschedule the shipment within a reasonable period of time, and Buyer will not be entitled to refuse delivery or otherwise be relieved of any obligations as a result of such delay. Products as to which delivery is delayed to any cause within Buyer’s control may be placed in storage by Seller at Buyer’s risk and expense and for Buyer’s account. Orders in process may be canceled only with Seller’s written consent and upon payment of Seller’s cancellation charges. Seller reserves the right to apply cancellation charges based on (i) the amount of work already performed, (ii) the type of Product or service, (iii) costs Seller has incurred, (iv) the applicability of restocking fees, (v) cancellation charges may amount to 100% of the sale price of the Product or Service. Orders in process may not be changed except with Seller’s written consent and upon agreement by the parties as to an appropriate adjustment in the purchase price therefore. Products may be returned for a credit under the following conditions: the Product is new and unused, a return authorization has been issued by Seller’s Technical Service Department within ninety (90) days after shipment, the equipment is received at Life Science Refrigeration within thirty (30) days of issuance of the return authorization, the equipment is returned in original packaging or Life Science Refrigeration issue packaging at the customer’s expense, the freight cost to return the Product is the responsibility of the customer, a 20% restocking fee plus any additional return costs will be deducted from the credit, the credit will be issued at the time equipment is inspected by Life Science Refrigeration and deemed in good condition, special request and/or customized units are not returnable.
The Seller prefers to receive payment via ACH or other electronic interface methods that directly exchange funds between the Buyer’s and Sellers’ bank accounts. The Seller also accepts checks mailed to its remittance location. The Seller does accept credit card payments.
Seller warrants that the Products will operate or perform substantially in conformance with Seller’s published specifications and be free from defects in material and workmanship, when subjected to normal, proper and intended usage by properly trained personnel, for the period of time set forth in the product documentation, published specifications, or package inserts. If a period of time is not specified in Seller’s product documentation, published specifications or package inserts, the warranty period shall be two (2) years from the date of shipment to Buyer for equipment (the “Warranty Period”). Seller agrees during the Warranty Period, to repair or replace, at Seller’s option, defective Products so as to cause the same to operate in substantial conformance with said published specifications; provided that Buyer shall (a) promptly notify Seller in writing upon the discovery of any defect, which notice shall include the product model and serial number (if applicable) and details of the warranty claim; and (b) after Seller’s review, Seller will provide Buyer with service data and/or a Return Material Authorization (“RMA”), which may include biohazard decontamination procedures and other product-specific handling instructions, then, if applicable, Buyer may return the defective Products to Seller with all costs prepaid by Buyer. Replacement parts may be new or refurbished, at the election of Seller. All replaced parts shall become the property of Seller. Shipment to Buyer of repaired or replacement Products shall be made in accordance with the Delivery provisions of the Seller’s Terms and Conditions of Sale. Consumables are expressly excluded from this warranty. If Seller elects to repair defective medical device instruments, Seller may, in its sole discretion, provide a replacement loaner instrument to Buyer as necessary for use while the instruments are being repaired.
Notwithstanding the foregoing, Products supplied by Seller that are obtained by Seller from an original manufacturer or third-party supplier are not warranted by Seller, but Seller agrees to assign to Buyer any warranty rights in such Product that Seller may have from the original manufacturer, or third-party supplier, to the extent such assignment is allowed by such original manufacturer or third-party supplier.
In no event shall Seller have any obligation to make repairs, replacements or corrections required, in whole or in part, as the result of (i) normal wear and tear, (ii) accident, disaster or event of force majeure, (iii) misuse, fault or negligence of or by Buyer, (iv) use of the Products in a manner for which they were not designed, (v) causes external to the Products such as, but not limited to, power failure or electrical power surges, (vi) improper storage and handling of the Products or (vii) use of the Products in combination with equipment or software not supplied by Seller. If Seller determines that Products for which Buyer has requested warranty services are not covered by the warranty hereunder, Buyer shall pay or reimburse Seller for all costs of investigating and responding to such request at Seller’s then prevailing time and materials rates. If Seller provides repair services or replacement parts that are not covered by this warranty, Buyer shall pay Seller therefor at Seller’s then prevailing time and materials rates.
ANY INSTALLATION, MAINTENANCE, REPAIR, SERVICE, RELOCATION OR ALTERATION TO OR OF, OR OTHER TAMPERING WITH, THE PRODUCTS PERFORMED BY ANY PERSON OR ENTITY OTHER THAN SELLER WITHOUT SELLER’S PRIOR WRITTEN APPROVAL, OR ANY USE OF REPLACEMENT PARTS NOT SUPPLIED BY SELLER, SHALL IMMEDIATELY VOID AND CANCEL ALL WARRANTIES WITH RESPECT TO THE AFFECTED PRODUCTS.
THE OBLIGATIONS CREATED BY THIS WARRANTY STATEMENT TO REPAIR OR REPLACE A DEFECTIVE PRODUCT SHALL BE THE SOLE REMEDY OF BUYER IN THE EVENT OF A DEFECTIVE PRODUCT, EXCEPT AS EXPRESSLY PROVIDED IN THIS WARRANTY STATEMENT, SELLER DISCLAIMS ALL OTHER WARRANTIES, WHERE EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE. SELLER DOES NOT WARRANT THAT THE PRODUCTS ARE ERROR-FREE OR WILL ACCOMPLISH ANY RESULT.