Published Feb 24, 2019
Any order by the original Buyer (“Buyer”) of the goods and/or services specified in this quotation (“Quotation”) issued by or on behalf of NanoScience Instruments, Inc. or its affiliates or subsidiaries (“Seller”) is subject to the following terms and conditions. Quotation is valid for the time stated on the quote. Any quotation missing such information is valid thirty (30) days from the date of issuance.
The Quotation, including this Confirmation of Purchase Terms and Conditions of Sale, contains all agreements of the parties with respect to goods and services provided by Seller to Buyer (“Agreement”) and are in lieu of all other agreements (oral or written), guarantees, promises, representations or warranties expressed or implied and shall not be amended or revised by purchase order or other purchase document. This Quotation supersedes all preceding quotations. The Agreement may be amended or modified only by a specific amendment referencing this Agreement executed by authorized personnel of the parties.
“Product” means the goods and services ordered hereunder.
Prices do not include any duties, freight, shipping, insurance, VAT or taxes. Buyer shall pay such amounts directly or reimburse Seller for all such amounts, whether imposed on Buyer, required to be collected by Seller or imposed on the Product or Seller in connection with this sale.
Transportation from Seller’s premises (factory or warehouse) shall be at Buyer’s expense. Transportation charges shall be collect, or prepaid by Seller and billed to Buyer at Seller’s option. Standard shipping terms are FOB Destination, Shipping Prepaid and Additional, unless otherwise agreed upon and documented on the quote by Seller.
5. Payment Terms
Unless Seller, in its sole discretion, extends credit to Buyer, Seller shall invoice Buyer for one hundred percent (100%) of the purchase price upon acceptance of this sales quotation. If Seller, in its sole discretion, extends credit to Buyer, then the Seller shall invoice Buyer upon shipment for the full purchase price. All payments are due within thirty (30) days of the date of the invoice. Delays in installation, training, or customer acceptance shall not extend the payment terms. In case of late payment, Buyer shall pay Seller interest on unpaid invoices at the rate of one and one-half percent (1½%) per month (18% per annum) (but in no event greater than the maximum rate allowed under applicable law) for any amount payable by Buyer not paid when due under such invoices. If Seller does not extend credit to Buyer, then Seller reserves the right to delay shipping of Products until receipt of the full purchase price.
6. Risk of Loss and Title Transfer
Risk of loss or damage transfers upon delivery at Buyer’s shipping dock. Title transfers at the same point that risk of loss transfers.
Seller warrants to the original Buyer of New Product sold by Seller that the Product will be free from material defects for a period of twelve (12) months from the date of delivery in accordance with the shipping terms (“Warranty Period”). Consumables will only be replaced under the warranty if they have failed prior to the end of their ordinary useful life. Any Product repaired or replaced under this warranty is warranted only for the unexpired part of the original Warranty Period applicable to that Product. Warranties for third party items are the responsibility of the third party vendor. The warranty set forth above (“Warranty”), if any, does not apply and shall be of no force and effect if Buyer (or Buyer’s agents, employees or contractors) modifies, maintains or repairs Product with other than Seller-supplied parts and Seller-authorized personnel. In addition, the Warranty shall not apply to, and Seller shall have no responsibility for, defects caused in whole or in part by accident, vandalism, other than normal use, abuse, wrongful act, neglect, failure to use proper operational and safety procedures, or improper integration, installation, application or maintenance, contamination or damage of equipment caused by Buyer samples. In the event Seller determines that the product repairs were not covered under this warranty, Buyer shall be responsible for the cost of the repair, including parts, labor, shipping and insurance costs related to the repair, which amounts shall be due net thirty (30) days. Seller’s sole obligation under the Warranty is to provide one of the following remedies, in Seller’s sole discretion: repair, replacement or removal and refund of purchase price. No modification of the Warranty shall be binding on Seller unless agreed to by Seller in a writing referencing this Agreement signed by an authorized representative of Seller. In no event shall Buyer have the right to “cover” by procuring substitute Product at the cost or expense of Seller. THE WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE PRODUCT. NO WARRANTIES SHALL ARISE UNDER THIS AGREEMENT FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. SELLER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR ANY PARTICULAR PURPOSE.
a) Definitions: (i) “Maintenance” means the services provided by Seller or its representative under Seller’s Maintenance Policy in effect at the time such services are ordered, (ii) “Maintenance Fee” means the fee charged Buyer by Seller for Maintenance, (iii) “Maintenance Period” means a period during which Seller makes Maintenance available (which is ordinarily a one (1) year, renewable period), except as otherwise specified by Seller, (d) “Service Maintenance Agreement” means Seller’s Maintenance Agreement regarding the applicable Product (which may differ by type of product and service level), initially as in effect on the date of this Quotation and as may be modified from time to time thereafter as set forth herein. The current Maintenance Agreement is available upon request to the Seller. b) Seller’s standard level Maintenance services applicable to the Product, if any, will be provided to Buyer at no additional charge during the Warranty Period, if any. For as long as Seller provides Maintenance for the Product, Seller will make Maintenance available to Buyer for purchase. Seller reserves the right to alter its standard Maintenance Agreement from time to time, but will not reduce the level of Maintenance for which a Maintenance Fee has been paid.
Seller will provide installation of the products for an additional fee. Buyer agrees to provide a safe and suitable location for installation and operation of the Products in accordance with Seller’s standard specifications and facility requirements. Seller will provide Buyer with all requirements and procedures. Buyer shall be responsible for any modifications required to meet the facility requirements before the schedule installation. Seller may allow Buyer to self install, thereby waiving the additional installation fee. Seller shall provide phone based support during installation to assist Buyer with the installation and training process. The Warranty does not apply and shall be of no force and effect if Buyer (or Buyer’s agents, employees, or contractors) installs the Product with other than Seller-supplied requirements and procedures. Best effort will be made by Buyer to schedule the installation in a timely manner and not to withhold payment due to delays.
ANY OFFER TO ACQUIRE ANY PRODUCT FROM SELLER, AND ANY SALE OF PRODUCT BY SELLER, WILL BE MADE ON THE TERMS AND CONDITIONS CONTAINED HEREIN. ANY OFFER TO SELL IS EXPRESSLY LIMITED TO ACCEPTANCE OF ALL SUCH TERMS, AND SELLER HEREBY SPECIFICALLY OBJECTS TO AND REJECTS ANY TERMS AND CONDITIONS OF BUYER’S OFFER THAT ARE IN CONFLICT WITH, DIFFERENT FROM OR IN ADDITION TO THESE TERMS AND CONDITIONS. THIS AGREEMENT SHALL BE BINDING ON SELLER ONLY AFTER ACCEPTANCE BY SELLER. IN THE EVENT THAT SELLER HONORS ONE OR MORE TERMS IN BUYER’S PURCHASE ORDER THAT IS (ARE) IN CONFLICT WITH THIS AGREEMENT, SUCH ACTION DOES NOT CONSTITUTE SELLER’S ACCEPTANCE OF ANY OTHER TERMS IN THE PURCHASE ORDER.
If Buyer terminates this Agreement prior to shipment, then Buyer shall pay Seller an amount equal to twenty percent (20%) of the total contract amount not including installation and delivery charges. Because of the difficulty of determining Seller’s actual damages upon termination by Buyer, Seller and Buyer agree that the above amounts are reasonable estimates of actual damages and constitute liquidated damages and not penalties.
IN NO EVENT SHALL SELLER OR ITS LICENSORS BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF CLIENTS AND LOSS OF GOODWILL, ALTHOUGH SELLER MAY BE INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SELLER DISCLAIMS ALL OTHER LIABILITY TO BUYER OR ANY OTHER PERSON IN CONNECTION WITH THIS AGREEMENT OR THE DELIVERY OR NON-DELIVERY, SALE, MAINTENANCE, USE OR PERFORMANCE OF PRODUCT, INCLUDING SPECIFICALLY, BUT WITHOUT LIMITATION, LIABILITY FOR NEGLIGENCE OR STRICT LIABILITY IN TORT. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL SELLER’S OR SELLER’S LICENSORS’ TOTAL AGGREGATED LIABILITY UNDER THIS AGREEMENT EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCT BY THE BUYER, REGARDLESS WHETHER SUCH LIABILITY EXISTS OUT OF AN OBLIGATION TO PAY DAMAGES OR REPAYMENT OF ANY AMOUNT RECEIVED FROM THE BUYER IN RELATION TO THE CONFIRMATION OF PURCHASE TERMS AND CONDITIONS OF SALE, ANY AGREEMENT AND/OR ANY ENSUING AGREEMENT. BUYER ACKNOWLEDGES THAT THE PRICING OF THE PRODUCT AND THE OTHER TERMS AND CONDITIONS OF THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT SELLER WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF ITS LIABILITY.
13. Force Majeure
In addition to any excuse provided by applicable law, Seller shall be excused, and free from liability for, any non-delivery, delay in delivery or failure otherwise to perform arising out of any event beyond Seller’s reasonable control, whether or not foreseeable by either party, including, but not limited to, labor disturbance, strike, war, fire, accident, adverse weather, inability to secure transportation, governmental act or regulation, inability of Seller to obtain raw materials, denial of export license and other causes or events beyond Seller’s reasonable control, whether or not similar to those enumerated above.
a) This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns, provided, however, neither party shall have the right to assign or transfer in whole or in part, by operation of law or otherwise, its rights or obligations hereunder without the consent of the other party. b) If any term or provision of this Agreement or the application to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby, and each such term and provision of this Agreement shall be valid and shall be enforced to the fullest extent permitted by law. c) All notices required to be sent hereunder shall be in writing and a notice shall be deemed to have been given upon (i) the date sent by confirmed facsimile, (ii) on the date it was delivered by recognized express courier or by hand delivery, or (iii) if by certified mail return receipt requested, on the date received, addressed to the address stated on the face of this Agreement for the party to which the notice or communication is being given. Either party may change its notice address by giving notice of change of address to the other party in accordance with this section. d) No waiver of any provision of this Agreement shall be deemed, or shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed directly by the party making the waiver. e) This Agreement may not be amended or modified except by a written agreement executed by Seller and Buyer. f) Buyer shall not be entitled to withhold payment for the Product due to matters unrelated to the Product or this Agreement. g) If an action, suit or proceeding is commenced to enforce this Agreement or with respect to this Agreement, the prevailing party shall be reimbursed by the other party for all costs and expenses incurred in connection with the action, suit or proceeding, including without limitation reasonable attorneys’ fees at the trial level and on any appeal. h) Buyer will comply with applicable export laws. i) This Agreement has been drafted in English, at the express request of the parties.
With prior approval of Buyer, which Buyer shall not unreasonably withhold, Seller may identify Buyer as a user of Seller’s products or services in: (a) communications with other customers, potential customers, industry analysts, financial analysts and the like; and (b) in press releases, sales materials, sales brochures, advertising, on any Seller website, and in other similar ways. Further, Buyer will serve as a reference account for Seller upon Seller’s request and to make its personnel reasonably available for communications with other customers and potential customers concerning use of Seller products and solutions.
This Agreement and/or any ensuring agreement shall be construed and enforced in accordance with the laws of the State of Arizona regardless of any Arizona choice of law provisions. The parties consent to the exclusive venue and jurisdiction of the Superior Court of the State of Arizona, County of Maricopa, and the United States District Court for the District of Arizona. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement or sales made pursuant hereto.
Buyer shall keep confidential all confidential and proprietary information of Seller, including, but not limited to, the Product, Software, documentation, formulas, methods, know how, processes, designs, new products, developmental work, marketing requirements, marketing plans, customer names, prospective customer names, the terms and pricing under this Agreement, and the results of any comparative or other benchmarking tests with respect to the Product, in each case regardless of whether such information is identified as confidential (“Confidential Information”). Confidential Information shall include (a) any information that is clearly identified in writing at the time of disclosure as confidential, (b) any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential, or (c) all information of third parties that Seller is obligated to treat as confidential. Buyer shall not to make Confidential Information available in any form to any third party or to use Confidential Information for any purpose other than in the performance of this Agreement. Buyer shall take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in breach of this Agreement. Seller shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it might have at law or under this Agreement, for any violation of this provision. The aforesaid obligations shall not apply to Confidential Information, which (i) is or becomes generally available to the public without Buyer being responsible for such disclosure; (ii) becomes available to Buyer on a non-confidential basis from a third party which was not itself bound by a confidentiality obligation and was entitled to disclose the information; (iii) has already been known by Buyer prior to its disclosure under the Agreement without an obligation of confidentiality.