Terms and Conditions

TERMS AND CONDITIONS OF EQUIPMENT PURCHASES

As of January 1, 2024

TERMS AND CONDITIONS OF EQUIPMENT PURCHASE

This EQUIPMENT SALE AGREEMENT (this “Agreement”) is made effective as of the Effective Date by and between Seller and Buyer (as each of those terms is defined below). Seller and Buyer may be individually referred to in this Agreement as a “party” and collectively as the “parties.” This Agreement is composed of the Estimate set forth below and the attached Terms and Conditions (the “Terms and Conditions”). In the event of a conflict between the Estimate and the Terms and Conditions, the Terms and Conditions shall prevail. All capitalized terms used but not defined in this Estimate shall have the meanings ascribed to them in the Terms and Conditions.

1. FOB. Seller ships freight on board (“FOB”) destination.  In FOB destination, title transfers at time and place of arrival at the Buyer’s location.  Purchasing FOB destination means responsibility of Seller as the seller ceases when the Equipment arrives at the Buyer’s warehouse. Should damage or loss occur during transport, it is between the Seller and the transportation company to settle. 
2. Delays. Any specified delivery dates are estimates only and do not represent a promise by Seller to deliver Equipment at a certain date. If Seller should default or delay or not deliver the Equipment, Buyer’s sole remedy against Seller is an option to cancel this Agreement, through written notice to Seller.
3. Liability. Seller’s liability shall be limited to the amount paid by Buyer to Seller for the Equipment and the Covered Services.  Seller shall not be liable in any way shape or form for any default or delay in the performance of any obligation contained in, or related to, this contract, to the extent that performance is affected by any cause or causes beyond the control of Seller. Seller shall have no liability for any loss, damage, or injury resulting from Buyer’s or third parties’ negligence, lack of training, use or misuse, or misapplication of the Equipment. Seller’s sole and exclusive liability and Buyer’s sole and exclusive remedy with respect to Equipment proved to be defective or nonconforming with the warranties below shall be repair or replacement of such Equipment without additional charge to Buyer, or refund of the purchase price to Buyer, in Seller’s sole discretion and upon the return of such Equipment in accordance with Seller’s instructions listed in Section 10 below.

TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SELLER, ITS PARENTS, SUBSIDIARIES, AND AFFILIATES, AND EACH OF ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “SELLER PARTIES”), BE LIABLE FOR ANY LOST REVENUES OR LOST PROFITS, OR FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND RELATING TO THIS AGREEMENT OR THE EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LIABILITY FOR LOSS OF USE, COST OF CAPITAL, LOSS OF WORK IN PROGRESS, DOWN TIME, FAILURE TO REALIZE SAVINGS, ANY LIABILITY OF BUYER TO ANY THIRD PARTY, OR ANY LABOR OR OTHER EXPENSE, DAMAGE, OR LOSS OCCASIONED BY ANY PRODUCT OR SERVICE, INCLUDING WITHOUT LIMITATION PERSONAL INJURY OR PROPERTY DAMAGE, UNLESS SUCH PERSONAL INJURY OR PROPERTY DAMAGE IS CAUSED BY SELLER’S GROSS NEGLIGENCE. IN NO EVENT WILL THE SELLER PARTIES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID OR PAYABLE UNDER THIS AGREEMENT.

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF THE EQUIPMENT IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY SELLER, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE EQUIPMENT.

THE EXCLUSION OF THE FOREGOING DAMAGES AND/OR CLAIMS AND THE OTHER LIMITATIONS ON LIABILITY SET FORTH HEREIN SHALL BE DEEMED INDEPENDENT OF, AND SHALL SURVIVE, ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THESE EXCLUSIONS AND LIMITATIONS ON DAMAGES SHALL APPLY REGARDLESS OF HOW THE LOSS OR DAMAGE MAY BE CAUSED AND AGAINST ANY THEORY OF LIABILITY, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY. ALL CLAIMS MUST BE BROUGHT WITHIN ONE (1) YEAR OF SHIPMENT OF EQUIPMENT.

4. Indemnification. Buyer agrees to indemnify, defend, and hold harmless Seller, its employees and its agents from any claims, damages and actions of any kind or nature arising from or caused by Buyer’s use or misuse of the Equipment, by Buyer’s purchase, acceptance or receipt of Equipment not in compliance with local, state, company or purchasing entity, or national government laws or regulations, and by Buyer’s failure to comply with any such entity’s contracting requirements.
5. Service Warranty. For Equipment shipped to locations within the United States of America and during the first 12 months after Buyer’s receipt of equipment (“Covered Services Term”), in exchange for Buyer’s payment of the agreed to fee, Seller shall provide to Customer certain services for the Equipment (such services, the "Covered Services"). Such Covered Services may include:

Repair. Seller shall repair or otherwise correct any material reproducible failure or malfunction subject to the Service Limitations paragraph below. A failure or malfunction shall be "material" if it represents a substantial nonconformity with manufacturer's current published specifications for the Equipment, and Customer reasonably determines (and notifies Seller) that such error or malfunction is substantial.

Preventative Maintenance. Prior to shipping the Equipment to Buyer, Seller will perform an initial preventative maintenance on the Equipment as set forth in Seller's current published preventative maintenance procedures and instrument service specifications.

Telephone and email of customer support shall be provided by Seller during Seller’s normal business hours. Service tickets will be opened only if requested by an authorized employee of Customer.

Service Limitations. Customer agrees to follow the operation procedures published by the manufacturer of the Equipment, including procedures for routine maintenance. Notwithstanding anything herein, the Covered Services shall not include, and Seller shall have no obligation to provide, support resulting directly or indirectly from any of the following:

Neglect, misuse, accidents, willful damage, or the failure to comply with Seller's schedule of preventative maintenance checks and/or other routine operational maintenance as directed by the manufacturer;

Improper or inadequate adjustment, calibration or operation of the Equipment by Customer or its designee, including failure to perform proper installation tasks;

Modifications made to the Equipment without the prior written approval of Seller;

Relocation of the Equipment without the prior written approval of Seller;

Failure or fluctuation of electrical power, lightning or static, fire, water spill, flooding, chemical spill, earthquake, military or civil disturbance, or acts of God;

The use of media, supplies or other products not supplied or approved by the manufacturer;

The use of any equipment, software, or peripherals, which are not part of the Equipment;

Any software, computer, or related hardware, unless otherwise noted on the Estimate; or

Any consumable items or parts as defined by the manufacturer.

Limitations. Any and all instruments, software, other products, or any parts or subassemblies of the foregoing that are not provided in the Service Warranty by Seller shall be deemed "Non-Covered Equipment." Seller shall have no obligations with respect to Non-Covered Equipment; moreover, and notwithstanding anything herein to the contrary, Seller shall have no obligation to provide Covered Services in connection with any Equipment:

That have been altered by Customer, including, without limitation, removal of any serial numbers or other identifying markings;

That do not incorporate all of the manufacturers engineering improvements or other fixes that Seller requests Customer to implement;

That incorporate Non-Covered Equipment or have Non-Covered Equipment attached to them;

That have been operated in conditions outside of manufacturer's environmental or electrical site specifications as defined in the product operations, installation or maintenance manuals provided with the Instruments or System;

That have been operated in hazardous environments or used to analyze hazardous materials that may cause residual contamination; or

That have been repaired or maintained by anyone other than Seller except such routine operational maintenance as set forth in the product operation, installation or maintenance manuals provided by the manufacturer.

Access and Service Safety. Customer will provide Seller reasonable and safe access to all Instruments and Systems for the provision of any services and for any audit of compliance with Seller's installation and operational guidelines. If environmental or operational contamination creates a hazard for Seller personnel, Seller may supervise Customer's execution of service procedures. Customer is responsible for proper disposal of all contaminated material and contaminated parts that cannot be safely returned to Seller.

Limited Warranty. Seller warrants that it will render the Covered Services hereunder in a good and workmanlike manner. As Seller's sole responsibility and Customer's exclusive remedy in the event of any material failure to meet such standard, Seller shall make a reasonable effort to remedy any resulting discrepancies. Any claim based on the foregoing warranty must be submitted in a reasonably detailed writing to Seller within ten (10) days after delivery or the date of the required delivery of the pertinent services at issue. EXCEPT AS EXPRESSLY SET FORTH IN THIS PARAGRAPH, Seller MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION, THE SERVICES, Seller SPECIFICALLY DISCLAIMS, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.

Overseas Sales.  For Equipment shipped to a location outside the Unites States of America, the Seller does not provide any implied or express warranty of any kind except for a limited warranty on the functionality of parts (“Parts Warranty”) used for the first 30 days after Buyer’s receipt of Equipment (“Parts Warranty Period”). Parts Warranty resolution involves only the exchange of the malfunctioning part. Buyer may return the malfunctioning part to Seller’s location and Seller will ship a replacement part upon receipt of the returned part with no restriction on fulfilment time. The Parts Warranty Period begins upon the date the Equipment is received by Buyer. Seller will be responsible for the cost of returning the malfunctioning part and shipping a replacement part. This Parts Warranty assumes normal and routine use of the item(s) supplied and routine maintenance. Misuse or use of item(s) provided or use by inadequately trained personnel or use outside original manufacturer intent for use/operation voids warranty. Buyer’s warranty is only valid if Buyer has paid its invoice in full. Connection to electrical supply source other than what supplied instrumentation was originally configured for by the original manufacturer voids the warranty. Installation not conforming to the original manufacturer’s guidelines voids the warranty unless Seller has pre-approved such installation in writing.  Any use by untrained operator voids the warranty.

6. Disclaimer of Other Warranties. Except as expressly set forth above, Seller expressly disclaims any warranty of the Equipment, express or implied, or statutory, or arising from course of dealing, or otherwise, including without limitation warranties of fitness and merchantability, fitness for any purpose, or non-infringement of any third-party patent or other intellectual property rights.  Seller hereby disclaims all other warranties and equitable indemnities. Seller makes no assurances as to the previous use of any refurbished (previously owed) items, supplies, or items sold (all items have been previously used & pre-owned unless stated otherwise elsewhere) and make no statements or guarantees as to its safety, appearance or prior use.  If the Equipment is used in a process, production, or sample testing, Seller shall have no liability for process, product, or results of tests.  Buyer acknowledges that it has not relied upon any representation or warranty made by Seller, or any other person on Seller’s behalf, except as specifically provided in this Agreement.
7. Indemnification. The Customer shall, to the fullest extent permitted by law and at its own cost and expense, defend, indemnify and hold the Vendor Parties harmless from and against any and all claims, loss, (including attorneys' fees, witnesses' fee and all court costs), damages, expense and liability (including statutory liability), resulting from injury and for death of any person or damage to or loss of any property arising out of negligent or wrongful act, error or omission or breach of contract, by the Customer.     
8. Software. Occasionally, Seller may supply an ORIGINAL software license document, original software registration article, or original manufacturer software media with an instrument and/or computer containing installed software supplied to Seller at time of instrument acquisition by Seller to our customer free of charge - for testing purposes only.  It is the Buyer’s responsibility to read, understand, and comply with original manufacturer EULAs (End-User License Agreements) and to obtain current revision software, software updates, or valid current software licenses directly from the OEM when and where applicable.  Seller shall bear no liability for Buyer’s negligence in any non-compliance with any EULA at any time.  Seller is only able to supply current revision software, software updates, and valid software licenses from an OEM or distributor for which Seller is an authorized agent/distributor. 
9. No Relationship with Original Manufacturers. Seller makes no claims of special affiliation with or special sanctions with the original manufacturers of the Equipment or with their respective trademarks, copyrighted material, or intellectual property.  The appearance of those names is not intended to imply that Seller is an officially authorized dealer or distributor for those manufacturers.
10. Returns. Return must occur within 14 days of receipt by Buyer with accompanying RMA & Decontamination Certificate (“RMA”) affixed to original packaging.  Items sent back “blind” with no RMA WILL NOT be accepted and WILL be rejected at Seller.  After 14 days, item(s) are not returnable.  Seller is not responsible for customer packaging negligence or carrier inflicted damage on/for any returned item.  Customer will be billed for repair of item(s) damaged during return. 
11. Cancellations. Cancelled orders on shipped instruments, items delivered, replacement parts—rejected OR returned—for any reason other than defect are subject to up to fifty percent restocking charge equal to 25% of the price of the Equipment.  In the event order has shipped, Buyer will be responsible for restocking charge and all shipping charges incurred (outbound and return to Seller facility). 
12. Payment; Taxes and Other Charges. Payment must be received by Seller in full prior to the shipment of the Equipment. In the event payment terms are provided in the Estimate and/or the Equipment is received by Buyer prior to Buyer’s payment in full, any amounts remaining outstanding shall be due and payable within 30 days of the date the Equipment is received by Buyer. A late fee of $150.00 will be added if payment is not made by the due date.   In addition, unpaid or late invoices will be assessed a 1.5% per month surcharge from date of invoice if not paid in full by indicated terms.  Seller shall be responsible for the payment of any use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between, including any sales taxes invoiced and collected from Buyer by Seller. Any applicable sales taxes, tariffs, or fees are not included in the purchase price and shall be charged in addition to named prices if applicable. When applicable, Buyer shall provide Seller at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
13. Rental. Any late rental payment will put rental in default and subject rented equipment to repossession of said equipment by Seller and a bill for all incurred recovery expenses along with invoice for balance of all remaining payments.  Any “credit” earned (see original quote if applicable) against purchase of rented equipment at end of rental term can be applied against specific instrument rented and NOT applied to other instruments with Seller. 
14. Import/Exports. Seller complies with US Commerce and Trade restrictions and export controls.  Ultimate country of destination must be declared at time of order along with intended use(s) of ordered instrumentation.  If Buyer is a reseller, you as exporter, will be responsible for ALL shipping arrangements.  Additionally, Buyer may be asked to complete and sign a Domestic Use Statement. 
15. Arbitration. Any controversy or claim arising out of or relating to this Agreement, or any breach hereof, including, without limitation, any claim that this Agreement, or any part thereof, is invalid, illegal or otherwise voidable or void, shall be submitted exclusively to final and binding arbitration before JAMS in New York, New York, in accordance with the Comprehensive Arbitration Rules of JAMS then in force except as otherwise set forth herein. Judgment upon the award may be entered in any court having jurisdiction thereof; provided, however, that this clause shall not be construed to limit any rights which Seller may have to apply to any court of competent jurisdiction for injunctive or other provisional relief. The arbitrator shall determine the arbitrability of any dispute. This arbitration provision shall be deemed self-executing, and in the event that either party fails to appear at any properly noticed arbitration proceeding, an award may be entered against such party notwithstanding failure to appear. The parties agree that the arbitrator shall not have the power to award punitive damages against any party. The prevailing party in any such dispute shall be entitled to recover from the losing party its fees and costs, including without limitation its attorney and expert fees.
16. Entire Agreement. These terms and conditions constitute the entire agreement between the parties and no other promises or agreements shall be of any force or effect unless otherwise put in writing and signed by both parties. 
17. Governing Law. This Agreement is made in the State of Connecticut and governed by the laws thereof, without giving effect to conflicts of law principles, and the United Nations Convention on Contracts for the International Sale of Goods shall not apply to such contract.