1. CONTRACT – Unless otherwise stated, all sales transactions are expressly subject to these Terms and Conditions. Modifications or additions will be recognized only if accepted in writing by an officer of Mettler-Toledo AutoChem, Inc. (hereinafter referred to as the “Company"), or an officially designated representative. Provisions of Buyer's Purchase Order or other documents that add to or differ from these Terms and Conditions are EXPRESSLY rejected. No waiver of these Terms and Conditions or acceptance of others shall be construed as failure of the Company to raise objections.
2. QUOTATIONS AND PUBLISHED PRICES – Quotations automatically expire 60 calendar days from the date issued unless otherwise stated in the quotation and are subject to withdrawal by notice within that period. The Company reserves the right to extend such quotation up to 6 months from the date of issuance. Prices shown on the published price lists and other published literature issued by the Company are not unconditional offers to sell, and are subject to change without notice. The Company's prices for products, unless otherwise specified, do not include an allowance for installation and/or final on-site adjustment. Prices shall be subject to adjustment to those in effect at time of shipment.
3. TAXES – The Company's prices do not include any applicable sales, goods and services, use, excise or similar taxes and the amount of any such tax which the Company may be required to pay or collect will be added to each invoice and paid by the Buyer.
4. TERMS OF PAYMENT – Unless explicitly stated elsewhere in writing, terms are cash net 30 days from date of shipment. Amounts past due are subject to a service charge of the greater of 1.5% per month (or fraction thereof) or the maximum contract rate permitted by law. By reason of the financial condition of Buyer or otherwise, the Company may require full or partial payment in advance.
Certain orders may require a deposit or progressive payments as referenced in the quote. Such deposits may be increased upon receipt of purchase order based upon the Buyer’s most current credit rating. Subject to the warranties expressly stated in 11 below, all sales are final without right of return.
5. DELIVERY – Delivery dates indicated in the contract documents are approximate and are based on prompt receipt of all necessary information regarding the product covered by the contract. The Company will use reasonable efforts to meet the indicated delivery dates, but cannot be held responsible for its failure to do so. Title to the product and risk of loss shall pass to Buyer upon delivery to a carrier.
In the event of any delay in delivery caused by the Buyer, the Company will store and handle all items ordered at Buyer's risk and will invoice Buyer for the unpaid portion of the contract price, plus storage, insurance, and handling charges on or after the date on which the product is ready for delivery. The invoice will be payable in full within 30 days from the invoice date, unless otherwise expressly agreed to in writing by Company.
The Company will not hold orders. The Company has the right to make partial shipments and bill for those shipments; the buyer will make payment in accordance with the terms referenced in 4 above.
6. SHIPPING AND HANDLING CHARGES – Shipments are F.O.B. point of shipment. Unless the Buyer elects a freight collect shipment, shipping charges plus the applicable company handling charge will be prepaid and billed as a separate item on the product invoice.
7. CHANGES – Buyer may, with the express written consent of the Company, make changes in the specifications for products or work covered by the contract. In such event the contract price and delivery dates shall be equitably adjusted. The Company shall be entitled to payment for reasonable profit plus costs and expenses incurred by it for work and materials rendered unnecessary as a result of such changes and for work and materials required to effect said changes.
8. CANCELLATION – Undelivered parts of any order may be canceled by Buyer only with the written approval of the Company. If the Buyer makes an assignment for the benefit of creditors, or in the event the Company for any reason feels insecure about Buyer's willingness or ability to perform, the Company shall have the unconditional right to cancel this sales transaction or demand full or partial payment in advance pursuant to 4 above.
In the event of any cancellation of this order by either party, Buyer shall pay to the Company the reasonable costs and expenses (including engineering expenses and all commitments to its suppliers and subcontractors) incurred by the Company prior to receipt of notice of such cancellation, plus the Company's usual rate of profit for similar work. The minimum cancellation charge shall be 25% of the contract price.
9. RETURNS – Items returned for customer convenience (and not for product or part failure or warranty issues) will be subject to a 15% restocking fee, minimum $200. METTLER TOLEDO must be contacted for a Return Materials Authorization (RMA) within 21 days of shipment (for a customer) or 30 days of shipment (for a dealer / distributor) from METTLER TOLEDO to be eligible for return credit. Customers must return items within 10 days of receiving an RMA. Item must be in new and unused condition, packed in original packaging and container, and include all manuals, peripherals and accessories.
10. SECURITY INTEREST – Buyer agrees to pay for the product according to the Company's payment terms and does hereby grant to the Company a purchase money security interest in the product until such time as it is fully paid. Buyer will assist the Company in taking the necessary action to perfect and protect the Company's security interest. In the event of a default by Buyer, the Company shall be entitled to any of the rights and remedies provided by law or in equity, including but not limited to repossession of the product.
11. DEFAULT – Upon default and placing of the buyer’s account for collection or repossession of product, the Buyer agrees to reimburse collection costs, legal fees, and court costs incurred by the Company in connection therewith. The Company’s failure to enforce or declare a default or breach with respect to any particular term or condition shall not be deemed a waiver by the Company.
12. WARRANTIES: COMPANY EXPRESSLY WARRANTS THE PRODUCT MANUFACTURED BY IT ONLY AS SET FORTH HEREIN. COMPANY MAKES NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). IN ADDITION, THE FOLLOWING SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDIES OF BUYER FOR ANY BREACH BY COMPANY OF ITS WARRANTY HEREUNDER:
A. NEW PRODUCT – The Company warrants its products against defects in materials and workmanship for twelve months from the date of installation or fifteen months from the date of shipment to Buyer’s destination, whichever is earlier, so long as all necessary maintenance has been performed on the products and said products have been used in accordance with their intended purpose. Should any product contain such defects, Buyer shall give the Company written notice of the defect during the warranty period and within fifteen days after its discovery. Thereafter, the Company will, at its option (i) repair or replace the product at no additional charge except as set forth below or (ii) refund the purchase price for such defective product after the return of the product by Buyer to the Company as set forth below. Prior to repair or replacement, the Company shall have the right to examine the equipment or the part claimed defective. Repairs may be performed at Buyer’s facility or the Company’s facility, at Company’s option. If performed at Buyer’s facility, Buyer shall pay Company’s reasonable travel time and expenses to and from Buyer’s facility. If repairs are performed at Company’s facility or Company elects to replace or refund the product, Buyer shall pay all necessary freight charges to and from Company’s facility, adequately insure the product, assume risk of loss or damage in transit and use the original padded shipping container or equivalent to return the product. The return of any product or parts thereof to Seller requires prior written authorization from Seller. Where warranty service includes replacement and return of parts, components or modules to the Company, it shall be Buyer’s obligation to perform complete decontamination of the item, as necessary, and to so certify on a document accompanying the returned item.
Unless specifically noted in product description as quoted, products are not automatically supplied with a report providing materials analysis. Such analysis is available upon special request at the time of order and will be subject to additional costs.
B. SOFTWARE - The Company warrants that software developed by the Company will be free from errors in program logic, clerical program preparation and transcription and will execute accordingly when properly installed. The warranty period for software shall be the same as the warranty period for the Company equipment with which the software is supplied. If there is a covered error in the software, and if the Buyer promptly notifies the Company and provides the description of the error and complete information about the manner of its discovery, the Company shall thereupon correct any defect or error (at its option): (a) by modifying or making available to the Buyer instructions for modifying any erroneous program, or (b) by making available necessary corrected or replacement programs. Buyer is granted a non-exclusive, limited license to use and to make copies of such programs for use only with the equipment for which such programs were acquired. If the software is not being supplied with Company equipment, the warranty provided in the terms and conditions accompanying the software shall apply. The Company does not warrant that (i) software is error free, (ii) Buyer will be able to operate the software without interruption or (iii) the software is free of vulnerability to intrusion or attack.
C. REPAIRED PRODUCT - Any covered product or part which has been the subject of warranty service by the Company carries the Company’s warranty only until the later of (i) the expiration of the original twelve month warranty period or (ii) thirty days from the date the product or part was replaced or other warranty service was performed on it. Parts repaired or replaced outside the applicable warranty period are warranted against defects in materials and workmanship for ninety days from the date of the repair and shall only apply to parts repaired or replaced by the Company. No separate warranty shall apply to repaired products as a whole or to parts not repaired or replaced by the Company.
D. SPECIAL - The foregoing warranties do not apply to all products sold by the Company. In instances where other warranties apply, the warranty will be stated at time of sale.
E. GENERAL – The foregoing warranties are further subject to the following general conditions: 1. If Buyer requests the performance of warranty work provided for under the foregoing warranties during other than normal Company work periods, the Buyer shall be required to pay for all premium time. 2. These warranties shall not apply where the Company’s equipment and/or software has been subjected to: (i) accident, neglect, alteration, misuse, and/or abuse, (ii) failure on the part of the Buyer to ensure the proper environment, electrical specifications, storage, operation, installation and/or maintenance, (iii) installation or servicing by other than Company authorized personnel, (iv) the addition or supply of equipment not approved for incorporation into the Company’s product, or (v) Buyer-supplied software, hardware, or interfacing. 3. These warranties shall not apply to parts consumed in the normal operation of the equipment, including without limitation, test tubes, filters, pipettes, gripper fingers, injection seals, valve seals, syringes and cannulas. 4. Products of other manufacturers sold by the Company as such, are warranted by the Company only to the extent of any remaining warranty provided by the original manufacturer.
13. INDEMNITY – Company agrees to indemnify Buyer and hold it harmless from and against any direct loss suffered and any direct liability to third parties whenever such loss or liability is directly due to bodily injury (including death) to any third party or direct damage to any third party property occurring in the course of, and caused exclusively by, any negligent act or omission by Company on the premises of Buyer that occurs in the performance of the work contemplated herein. This indemnity shall include reasonable legal fees and settlements of claim or suit. Buyer shall provide prompt written notice to Company of any actual or anticipated claims against it that might trigger the foregoing indemnity; failure to do so waives Buyer’s right to indemnification hereunder. Following such written notice, Company shall have the sole and exclusive right to manage the defense of any indemnified claims and shall be authorized to settle or compromise such claims at its sole and exclusive discretion. Buyer shall cooperate in the defense of all indemnified claims as deemed necessary by Company.
14. PATENT INFRINGEMENT – Company shall defend any suit or proceeding brought against Buyer so far as the same is based on a valid claim that any equipment of Company's design furnished hereunder, or any part thereof, constitutes an infringement of any applicable patent, if notified promptly in writing and given authority, information and assistance (at Company's expense) for the defense of the same and if such alleged infringement is not the result of a design or other special requirement specified by Buyer or the result of the application or the use to which such equipment is put by Buyer or others. Company will pay all damages and costs finally awarded in such suit or proceeding against Buyer provided that Company has the sole and exclusive right to defend, settle or compromise any suit or proceedings and Buyer takes no action that would materially detract from Company's ability to conduct an effective defense, settlement or compromise. In case such equipment or part in such suit held to infringe any such patent and the use thereof is enjoined, Company will at its expense either, at its option; (a) obtain for Buyer the right to continue using such equipment or part or; (b) replace the same with non infringing equipment, or; (c) modify the same so that it becomes non infringing or; (d) remove said equipment and refund the purchase price and the transportation and installation costs thereof. The foregoing states the entire liability of Company to Buyer for patent infringement.
15. REGULATORY LAWS AND OR STANDARDS – The performance of the parties hereto is subject to the applicable laws of the United States or Canada, depending on the location of delivery of the product or service. The Company takes reasonable steps to keep its products in conformity with various nationally recognized standards and such regulations, which may affect its products. However, the Company and Buyer recognize that Company’s products are utilized in many regulated applications and that from time to time standards and regulations are in conflict with each other.
The Company makes no promise or representation that its products will conform to any federal, provincial, state or local laws, ordinances, regulations, codes or standards except as particularly specified and agreed upon for compliance in writing as a part of the contract between Buyer and the Company. The Company prices do not include the cost of any related inspections, permits or inspection fees.
16. INTELLECTUAL PROPERTY – The sale and delivery of the Company’s equipment and/or software to Buyer shall in no way transfer to Buyer any right of ownership in any patents, copyrights, trademarks, technologies, designs, specifications, drawings, or other intellectual property incorporated into the equipment and/or software and Buyer shall not copy, adapt, reverse engineer, use or disclose the same for any purpose not contemplated herein.
17. DISCLAIMER OF DAMAGES – IN NO EVENT WILL COMPANY BE LIABLE TO BUYER OR ANY OTHER PARTY FOR ANY TYPE OF SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER SUCH DAMAGES ARISE OUT OF OR ARE A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. Such damages shall include but not be limited to loss of profits or revenues, loss of use of the equipment or associated equipment, cost of substitute equipment, facilities, down time costs, increased construction costs or claims of Buyer's customers or contractors for such damages. Buyer will not transfer, assign or lease the equipment sold hereunder to any third party without first securing from such party the protection afforded to Company herein.
18. LIMITATION OF LIABILITY – Company will not be liable for any loss, claim, expense or damage caused by, contributed to or arising out of the acts or omissions of Buyer or third parties, whether negligent or otherwise. In no event will Company's aggregate liability for any and all types of damages or losses related to this agreement or the products or services sold or delivered pursuant hereto exceed the cost of the item giving rise to the claim, whether based in contract, warranty, indemnity, or tort (including negligence). Any suit arising hereunder must be commenced within one year from the date on which the cause of action accrues.
19. CONFIDENTIALITY – Buyer will not disclose, publish or otherwise disseminate any information concerning the Company’s business that is known or should be known to be confidential or proprietary to the Company.
20. INTERPRETATION – Should any term or provision contained in the contract contravene or be invalid under applicable law, the contract shall not fail by reason thereof but shall be construed in the same manner as if such term or provision had not appeared therein.
21. ASSIGNMENT – This contract is not assignable by the Buyer without the prior written consent of the Company, said consent to be granted or withheld by the Company in its sole discretion. Consent granted in one instance does not waive Buyer’s obligation to obtain the Company’s consent in subsequent instances.
22. GOVERNING LAW AND PLACE OF JURISDICTION – The legal relationship between Buyer and Company shall be governed by the laws of the United States of America. Exclusive place of jurisdiction shall be Columbia, Maryland. Company however reserves the right to initiate court proceedings against the Buyer at any other court of competent jurisdiction. The United Convention on Contracts for the International Sale of Goods is explicitly excluded.
FM-CC-7.2.1-002_3_Sept_2009
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