Sales Terms & Conditions
UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING, ALL SALES ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:
1. GENERAL
Fisher Scientific UK Limited ("Seller") hereby offers for sale to the buyer named on the face hereof ("Buyer") the 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 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. No waiver, consent, modification, amendment or change of the terms contained herein shall be binding unless in writing and signed by Seller and Buyer. 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.
2. Price
All prices published by Seller may be changed at any time without notice. All prices quoted by Seller 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, special packaging, cost of production, shipment arrangements or other terms or conditions which are not part of Seller's original price quotation. The Seller reserves the right to designate minimum order quantities and/or minimum handling charges for any products.
3. TAXES AND OTHER CHARGES
Prices for the Products exclude all applicable VAT and other taxes or duties relating to the sale, delivery, or use of any Products. If Buyer claims any exemption, Buyer must provide a valid, signed certificate or letter of exemption.
4. TERMS OF PAYMENT
Seller may invoice Buyer upon shipment for the price and all other charges payable by Buyer. Unless otherwise agreed, payment shall be due thirty (30) days from the date of invoice. If Buyer fails to pay any amounts when due, Buyer shall pay Seller interest at the rate of 1.5% per month (or, if lower, the highest at such rate permitted by law). Seller reserves the right to require advance payment from Buyer at any time. All payments shall be made in the local currency of the Seller. Payment by credit card shall be subject to Seller’s consent.
5. DELIVERY; CANCELLATION OR CHANGES BY BUYER
Unless otherwise agreed by the Seller orders will be delivered FCA (Incoterms 2000) at Seller’s facility, and onward carriage shall be at Buyer’s cost and risk. The cost of insurance and packaging, if any, will be charged in addition to the price quoted for the goods. Seller may, at its election, make partial shipments of the Products and invoice each shipment separately. All delivery 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. Orders may be varied or canceled by Buyer only with Seller's written consent and upon payment, where applicable, of applicable charges. Product returns shall only be permitted in accordance with Seller’s Returns Policy.
6. TITLE AND RISK OF LOSS
Title to and risk of loss of the Products will pass to Buyer upon delivery; provided, however, that title to any software incorporated within or forming a part of the Products shall at all times remain with Seller or the licensor(s) thereof, as the case may be.
7. WARRANTY
Seller warrants that the Products will substantially conform to 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, the warranty period shall be one (1) year from the date of shipment to Buyer for equipment and ninety (90) days for all other non-consumable products (the "Warranty Period"). Seller shall repair or replace, at its option, defective Products during the Warranty Period 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) obtain 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. Consumables are expressly excluded from this warranty.
Where the Products have been sourced by Seller from an original manufacturer or third party supplier, Seller shall assign to Buyer any warranty rights in such Product that Seller may have (to the extent such assignment is permitted).
In no event shall Seller liability under this warranty for damage arising from (i) normal wear and tear, (ii) accident, disaster or event of force majeure, (iii) misuse, fault or negligence of Buyer, (iv) use of the Products in a manner for which they were not designed, (v) external causes such as, but not limited to, power failure or electrical power surges, (vi) improper storage and handling; (vii) use of the Products in combination with unauthorized equipment or software; or (viii) any installation, maintenance, repair, service or alterations made by any person other than the Seller, or the use of any replacement parts not supplied by Seller.
THE REMEDIES UNDER THIS WARRANTY SHALL BE THE SOLE REMEDY OF BUYER IN THE EVENT OF A DEFECTIVE PRODUCT. SELLER DISCLAIMS (TO THE EXTENT PERMITTED BY LAW) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
8. INDEMNIFICATION
8.1 By Seller. Seller shall indemnify Buyer, its officer, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney’s fees) (“Indemnified Items”) for (i) injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer’s premises under this Agreement and (ii) claims that a Product infringes any valid third party intellectual property; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) improper storage or handling of the Products or use by unqualified personnel, (iv) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing any third party rights, (v) Seller’s compliance with Buyer's designs, specifications or instructions, (vi) use of the Product in an application or environment for which it was not designed or (vii) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third party claim covered by Seller’s indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Buyer agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section.
8.2 By Buyer. Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, affiliates, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) improper storage or handling of the Products or use by unqualified personnel; (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing any third party rights; (iv) use of the Product for any purpose for which it is not designed, or by a not suitably qualified individual; (v) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (vi) use of a Product in an application or environment for which it was not designed; or (vii) modifications of a Product by anyone other than Seller without Seller's prior written approval.
9. SOFTWARE
With respect to any software products incorporated in or forming a part of the Products hereunder, Seller and Buyer intend and agree that such software products are being licensed and not sold, and that the words "purchase", "sell" or similar or derivative words are understood and agreed to mean "license", and that the word "Buyer" or similar or derivative words are understood and agreed to mean "licensee". Notwithstanding anything to the contrary contained herein, Seller or its licensor, as the case may be, retains all rights and interest in software products provided hereunder.
Seller hereby grants to Buyer a royalty-free, non-exclusive, nontransferable license, without power to sublicense, to use software provided hereunder solely for Buyer's own internal business purposes on the hardware products provided hereunder and to use the related documentation solely for Buyer's own internal business purposes. This license terminates when Buyer's lawful possession of the hardware products provided hereunder ceases, unless earlier terminated as provided herein. Buyer agrees to hold in confidence and not to sell, transfer, license, loan or otherwise make available in any form to third parties the software products and related documentation provided hereunder. Buyer may not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement the software products provided hereunder without Seller's prior written consent. Seller will be entitled to terminate this license if Buyer fails to comply with any term or condition herein. Buyer agrees, upon termination of this license, immediately to return to Seller all software products and related documentation provided hereunder and all copies and portions thereof.
Certain of the software products provided by Seller may be owned by one or more third parties and shall be supplied subject to the licence conditions of such third party. Accordingly, Seller and Buyer agree that such third parties retain ownership of and title to such software products. The warranty and indemnification provisions set forth herein shall not apply to software products owned by third parties and provided hereunder.
10. LIMITATION OF LIABILITY
(A) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE LIABILITY OF SELLER UNDER THESE TERMS AND CONDITIONS (WHETHER BY REASON OF BREACH OF CONTRACT, TORT, INDEMNIFICATION, OR OTHERWISE, BUT EXCLUDING LIABILITY OF SELLER FOR BREACH OF WARRANTY (THE SOLE REMEDY FOR WHICH SHALL BE AS PROVIDED UNDER SECTION 7 ABOVE)) SHALL NOT EXCEED AN AMOUNT EQUAL TO THE LESSER OF (A) THE TOTAL PURCHASE PRICE THERETOFORE PAID BY BUYER TO SELLER WITH RESPECT TO THE PRODUCT(S) GIVING RISE TO SUCH LIABILITY OR (B) ONE MILLION US DOLLARS (US$1,000,000) (OR EQUIVALENT IN LOCAL CURRENCY). (B) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE OF FACILITIES OR EQUIPMENT, LOSS OF REVENUE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF GOODWILL), REGARDLESS OF WHETHER SELLER HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR IS NEGLIGENT. (C) NOTHING SHALL EXCLUDE OR RESTRICT THE SELLER’S RESPONSIBILITY FOR ANY MANDATORY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
11. EXPORT RESTRICTIONS
Buyer acknowledges that each Product and any related software and technology, including technical information supplied by Seller or contained in documents (collectively “Items”), is subject to applicable export controls. Buyer shall comply with all applicable laws, regulations, laws, treaties, and agreements relating to the export, re-export, and import of any Item. Buyer shall not, without first obtaining the required license to do so from the appropriate government agency; (i) export or re-export any Item, or (ii) export, re-export, distribute or supply any Item to any restricted or embargoed country or to a person or entity whose privilege to participate in exports has been denied or restricted by the applicable authority. Buyer shall cooperate fully with Seller in any official or unofficial audit or inspection related to applicable export or import control laws or regulations, and shall indemnify and hold Seller harmless from, or in connection with, any violation of this Section by Buyer or its employees, consultants, agents, or customers.
12. MISCELLANEOUS
(a) Buyer may not assign any rights or claims hereunder without Seller's prior written consent. (b) The rights and obligations of the parties hereunder shall be governed by the laws of England and the parties irrevocably consent to the exclusive jurisdiction of the courts of England. (c) Any action arising under this Agreement must be brought within one (1) year from the date that the cause of action arose. (d) In the event that any one or more provisions contained herein shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall remain in full force and effect, unless the revision materially changes the bargain. (e) Seller's failure to enforce, or Seller's waiver of a breach of, any provision contained herein shall not constitute a waiver of any other breach or of such provision. (f) Unless otherwise expressly stated on the Product or in the documentation accompanying the Product, the Product is intended for research only and is not to be used for any other purpose, including without limitation, unauthorized commercial uses, in vitro diagnostic uses, ex vivo or in vivo therapeutic uses, or any type of consumption by or application to humans or animals. (g) Buyer agrees that all pricing, discounts and technical information that Seller provides to Buyer are the confidential and proprietary information of Seller. Buyer agrees to (1) keep such information confidential and not disclose such information to any third party, and (2) use such information solely for Buyer’s internal purposes and in connection with the Products supplied hereunder. (i) Any notice or communication required or permitted hereunder shall be in writing and shall be deemed received when personally delivered or three (3) business days after being sent by certified mail, postage prepaid, to a party at the address specified herein or at such other address as either party may from time to time designate to the other.