2. Buyer’s Assent. Buyer’s transmission to Seller of an order (“Buyer’s Order”) for any items (“Purchased Items”) shall constitute Buyer’s irrevocable acceptance of the terms and conditions set forth herein. Notwithstanding Seller’s tentative or provisional acceptance of Buyer’s Order, Seller may withdraw or modify such acceptance at any time prior to Buyer’s acceptance of Purchased Items.
  3. Modification. No modification, amendment, extension, renewal, rescission, discharge, abandonment, waiver or other change or alteration shall be valid, enforceable or binding on Seller unless agreed to in writing by Seller. Seller shall not be bound by any additional or different terms, whether printed or otherwise, in Buyer’s Order or any other communication from Buyer to Seller unless specifically agreed to by Seller in writing. Prior courses of dealing, usage of the trade, and verbal agreements not reduced to writing and signed by Seller, to the extent that they modify, add to, or detract from the Agreement, shall not be binding on the Seller. Seller may, at its option, treat any attempted modification, termination or repudiation by Buyer to which Seller does not assent as a breach of the entire Agreement and claim all proper damages.
  4. Change/Termination. In the event that Buyer shall cancel or change Buyer’s Order for any, some, or all Purchased Items other than custom products, Buyer shall pay charges as follows:
    4.1 Standard Products:
    Order released to production, but not started: 10%
    Order started but not yet calibrated: 20%
    Order calibrated and final tested but not delivered: 40%Buyer and Seller agree that damages to Seller in the event of such a change would be difficult to ascertain and that the foregoing percentages represent their reasonable estimate of the damages to Seller in the event of such a change. In the event that Buyer is in default under this Agreement and Seller elects to declare a termination of all or any portion of this Agreement, Seller may elect, in its discretion, to treat such a termination as if Buyer had cancelled the relevant outstanding orders.
  5. Payment Terms and Security Interest. Unless provided otherwise on the face of this Agreement, Buyer shall pay the purchase price in full within 30 days from date of shipment. All invoices not paid when due will thereafter be subject to a monthly service charge of one and a half percent (1½%) of the unpaid balance, or the maximum rate allowed by law, whichever is less. If, in Seller’s opinion, there is a material, adverse change in Buyer’s financial condition or if Buyer has not, within the agreed time, fully paid for Purchased Items shipped under this or any other agreement with Seller, Seller reserves the right to revoke Buyer’s credit, to require shipment C.O.D., and/or suspend performance on this and/or other Agreements and/or future shipments. Buyer hereby grants Seller a purchase money security interest in the equipment until the full purchase price is paid, and Buyers appoints Seller as its attorney-in-fact for the purpose of filing any documents necessary or desirable to perfect such security interest in any applicable jurisdiction.
  6. Shipment. Terms are F.O.B. Seller’s place of business at Anaheim, California. Buyer shall pay all shipping, packing and handling costs and shall bear the risk of loss after Seller completes delivery of the Purchased Items to the carrier. Buyer shall have five (5) days after any full or partial delivery to notify Seller if Buyer’s count of delivered Purchased Items does not comport with Seller’s count as identified in the itemized packing list accompanying the shipment.
  7. Sales or Use Taxes. The price shown on the face hereof does not include any tax or other governmental charge upon the sale, shipment or use of the Purchased Items which Seller is required to pay or collect from the Buyer. Any such tax or charge shall be paid by Buyer unless Buyer furnishes Seller with exemption certificates acceptable to the appropriate taxing authority.
  8. Time of Delivery. Shipment schedules are approximate and are based on conditions existing at the time of Seller’s conditional acceptance of Buyer’s Order. Buyer acknowledges Wedgwood’s ability to allocate inventory and/or manufacturing capability in any way it sees fit in the event of inventory shortages or other conditions of scarcity. Seller shall in good faith attempt to effect delivery by the date specified, but Buyer agrees that Seller shall not be responsible or liable for any damages, including special or consequential damages, arising from any shipment of nonconforming Purchased Items, or any delay in delivery, or any failure to deliver Purchased Items in quantities and at times specified. In such cases, Seller reserves the right to terminate the Agreement or to reschedule delivery within a reasonable time, and Buyer agrees that such termination or rescheduling shall not be considered a breach of the Agreement. In no event shall Seller be liable for incidental or consequential damages resulting from failure to meet requested delivery schedules.
  9. Return for Restock. All returns for restock must be approved by the factory management prior to acceptance. Return approval will only be considered for current standard products within 120 days of date of invoice. Returns must be received unused, in good working order and with all original documentation (especially certifications if applicable). Returns will be subject to a 45% restocking charge. A Returned Material Authorization (RMA) number, provided by Customer Support/Technical Service, must accompany all returned goods. All transportation costs on authorized returns must be prepaid by Buyer.
  10. Custom Products. Buyer may not cancel orders for custom products. In the event that Buyer attempts to cancel an order for custom products, Seller shall nevertheless be entitled to payment for the full purchase price of the custom products covered by the cancelled orders.
  11. Minimum Order Amount. The minimum order amount is $50.00
  12. Expedite Fee. Expedite requests will be considered by Seller. If Seller agrees to expedite an order, Seller shall use reasonable efforts to accelerate production and delivery of the relevant Purchased Items to accommodate the requested delivery date. An expedite fee of 10% of the net order value, or $50.00, whichever is greater, will apply. Notwithstanding the foregoing, Seller shall in no event be liable for any failure to meet the expedited date or any other date and Seller’s liability for any such failure shall in any event be limited as set forth elsewhere in this Agreement, including without limitation Section 8.
  13. Storage Fees. If Buyer requests deferral of shipment, or fails to provide information, material, or documentation required by this Agreement and as a result Purchased Items are placed in storage, storage fees will commence immediately following the scheduled ship date unless extended in writing. The Buyer will be charged a storage fee at Seller’s prevailing rate at the time. These charges will be invoiced to Buyer separately from the actual shipment, and shall be paid in full by Buyer within thirty (30) days of date of invoice.
  14. Specifications. Purchased Items shall be deemed to be in conformity herewith if they conform to the specifications provided by Buyer. In the event ambiguities, discrepancies, or express conflicts exist between the specifications and any other item purporting to describe or define the Purchased Items, including, but not limited to, any drawings, photographs, models or other documentation, the specifications shall control unless otherwise agreed to in writing by Seller. Buyer agrees that Seller shall have no responsibility to identify, or notify Buyer of, any such ambiguity, discrepancy, or conflict.
  15. Nonconforming Goods. Seller reserves the right to cure any shipment of nonconforming Purchased Items, and Buyer’s remedies for nonconforming Purchased Items shall be limited to, at the option of the Seller, return of the goods and repayment of any portion of the purchase price paid or the repair or replacement of the nonconforming Purchased Items. Purchased Items shall be deemed accepted when received by Buyer and any revocation of acceptance must be made in writing within five (5) days after receipt of the Purchased Items, specifying the reason for revocation of acceptance.
  16. Seller’s Express Warranty. Seller warrants the Purchased Items to be free from defects in materials and workmanship under normal use and service for a period of one (1) year from date of invoice for electrochemical electrodes (unless otherwise stated) and for a period of one (1) year from date of invoice for all other Purchased Items (consumables excluded), irrespective of whether Purchased Items have been purchased for end use, for resale, or for incorporation into other devices to be sold to Buyer’s customers. This warranty does not apply to consumables (i.e. lamps, gaskets, o-rings, seals, etc.).Wet chemical analyzers have a one-year limited warranty covering parts and labor. Under this analyzer warranty, there will be no charge to the buyer for parts and labor to repair an analyzer due to faulty parts or workmanship. Seller’s exclusive liability is limited to repair or replacement of defective analyzers and Seller is not liable for consequential damages. During the first 90 days after the analyzer warranty period commences, all travel and living expenses incurred for a Endress+Hauser Conducta Inc. service engineer to perform warranty repairs will be paid by Endress+Hauser Conducta Inc. During the remaining 9 months of analyzer warranty coverage, travel and living expenses for on-site repairs will be paid by the Buyer.This warranty runs solely to Buyer and not to any person purchasing from Buyer or Buyer’s resellers. In the event that a Purchased Item which is defective has been resold by Buyer or included in a product delivered by Buyer to another person, Buyer may obtain the defective Purchased Item from the end user and submit such defective Purchased Item to Seller (under Seller’s applicable RMA procedures) within the warranty period. In no event shall Seller be responsible for dealing with any person other than Buyer.Buyer agrees that it has the sole responsibility for the proper selection, application, installation and/or use of the Purchased Items and for instructions to ultimate users, if any, concerning use, application, periodic maintenance, and cautions regarding the Purchased Items.Buyer agrees that the warranty provided herein shall not apply to any Purchased Item which:1 has been repaired or altered outside of Seller’s factory in any way so as, in Seller’s judgment, to affect such Purchased Item’s reliability;2 has been subject to misuse, negligence, or accident; or3 has been operated other than in accordance with the printed instructions prepared by Seller and provided by Seller with the Purchased Item.
  17. Seller’s Exclusive Obligations Under Warranty. Seller may, at its option, repair or replace, or refund the purchase price of Purchased Items which shall be returned to Seller, no later than one month after the expiration of the applicable warranty period in the manner set forth in this clause, and which Seller’s examination shall disclose to Seller’s satisfaction to be defective as specified in the warranty clause hereof. All allegedly defective Purchased Items shall be returned to the Seller at Buyer’s expense and risk.
  18. Warranty Return. All such Purchased Items shall be returned to Seller at Anaheim, California, freight prepaid, accompanied by a factory Return Material Authorization (RMA) number with a particularized statement of the claimed defect. Under such circumstances, freight charges, both to and from Seller, and risk of loss shall be borne by Buyer, but Seller shall bear the cost of repair or replacement and the risk of loss while the Purchased Items are in Seller’s possession at Seller’s plant. If Purchased Items are returned without an RMA and without being preceded or accompanied by a statement of the claimed defect, Seller shall hold the Purchased Items pending receipt of Buyer’s a statement of defect, provided that, prior to such receipt, risk of loss of the Purchased Items shall remain with the Buyer. SELLER’S OPTION TO REPAIR, REPLACE OR REFUND THE PURCHASE PRICE FOR PURCHASED ITEMS IS BUYER’S EXCLUSIVE REMEDY AGAINST SELLER WITH RESPECT TO THE PURCHASED ITEMS AND SELLER SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES.
  20. Non-warranty repair/return: Endress+Hauser Conducta Inc. has full discretion as to whether to repair or replace out-of-warranty items at any price it determines. All authorized returns for non-warranty repair require a Seller purchase order in order to proceed with repairs. Claims for non-warranty repair must reference the original sales order and /or customer purchase order, as well as model number and/or part number on the return materials request form.
  21. Buyer’s Indemnification of Seller for Infringement. Buyer agrees to indemnify and hold harmless Seller against all damages, costs, expenses and attorney’s fees arising from claims of infringement of patents, designs, copyrights or trademarks with respect to all Purchased Items manufactured or assembled either in whole or in part to Buyer’s specifications, and agrees that such infringement shall be deemed a breach of the Agreement. Seller further reserves the right to terminate the Agreement for Purchased Items which, in the opinion of Seller, infringe upon any patent, design, copyright or trademark in their manufacture, sale and/or use, and Buyer agrees that such termination shall not be considered a breach by Seller of the Agreement.
  22. Seller’s Indemnification of Buyer for Infringement. Seller shall indemnify and hold harmless Buyer against any rightful claim of a third person for infringement of a United States Patent by the Purchased Items covered by the Agreement which are not, either in whole or in part, manufactured or assembled to the Buyer’s specifications: provided, however, that the foregoing undertaking of Seller shall not apply unless Seller shall have been informed as soon as practicable by Buyer of the charge or suit alleging such infringement and shall have been given the opportunity to take over the defense thereof, and provided, further, that it shall not apply if the alleged infringement results from the use of the Purchased Items in combination with equipment which is not part of the Purchased Items where such infringement would not have occurred from the use of the Purchased Items not in combination with such equipment. Except as provided in this paragraph, Seller makes no warranty that the Purchased Items will be delivered free of the rightful claim of any third party by way of infringement or the like.
  23. Indemnification. Seller shall indemnify and hold harmless Buyer from and against all personal or property injuries, losses or damages to third parties (specifically excluding claims of Buyer and all of its present of future agents, employees, officers, servants, representatives, directors, and affiliates) solely caused by the negligence of Seller provided that Buyer notifies Seller in writing within ten (10) days of Buyer’s receipt of notice of any claim or action alleging that any injury, loss or damage to a third party was caused by the negligence of Seller. Seller reserves the right to assume responsibility for the defense of any such claim or action, and upon assumption by Seller of its right to defend, Seller shall have control of the defense of such claim or action. Seller shall be relieved from its obligation to indemnify if Buyer fails to cooperate fully in the defense of any such action. Buyer agrees, however, that Seller shall not in any case be liable to Buyer, its present or future agents, employees, officers, servants, representatives, directors or affiliates for loss of use, revenue, or profit or for injury to person or property, or for any other consequential or incidental damages caused by the negligence of Seller. Buyer agrees that Seller shall not be liable under this provision if the Purchased Items are altered or modified in any manner after Seller delivers such Purchased Items to the carrier for delivery to Buyer.
  24. Default. Seller shall have the unrestricted right, upon written notice to Buyer, to declare a default hereunder and to terminate this Agreement if any of the following events occur:1 Buyer’s failure to comply with any of the provisions, terms and conditions of this Agreement, including without limitation, Buyer’s failure to timely pay for any Purchased Items delivered to Buyer;2 Dissolution, insolvency, appointment of a receiver, assignment for the benefit of creditors or the commencement of any proceeding under any bankruptcy or insolvency laws by or against the Buyer; or3 Seller’s determination, in its sole discretion, that Buyer’s financial condition is such as to endanger Buyer’s performance hereunder.
  25. Remedies Upon Buyer’s Default. Upon Buyer’s default and Seller’s written notice thereof to Buyer, every obligation of Seller hereunder shall immediately terminate and Seller shall have all rights and remedies existing at law or in equity, including but not limited to those provided by the laws of the State of California.
  26. Reservation of Rights. Buyer agrees that Seller’s forbearance, delay or failure to exercise any right or remedy hereunder shall not constitute a waiver of such right or remedy and that Seller’s exercise or partial exercise of any right or remedy shall not preclude further exercise of such right or remedy or any other right or remedy.
  27. Costs of Enforcement. Buyer agrees to pay Seller’s reasonable expenses, including reasonable attorney’s fees, incurred in enforcing the terms herein.
  28. Applicable Law. The Agreement shall be governed by the laws of the State of California excluding its choice of law provisions.
  29. Severability of Clauses. Buyer agrees that the invalidity or unenforceability of any of the clauses or terms herein shall not affect the validity or enforceability of any other clauses or terms hereof.
  30. Disclaimer of Damages: IN NO EVENT SHALL THE SELLER BE LIABLE FOR ANY TYPE OF SPECIAL CONSEQUENTIAL, INCIDENTAL OR PENAL 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 agrees that in the event of a transfer, assignment, or lease of the equipment, or lease sold hereunder Buyer shall secure for the Seller the protection afforded to it in this paragraph.
  31. Limitation of Liability: The Seller shall 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 shall the Seller’s liability for any cause of action whatsoever exceed the price paid by Buyer for the item-giving rise to the claim, whether based in contract, warranty, indemnity or tort (include negligence). Any suit arising hereunder must be commenced within one (1) year from the date in which the cause of action accrues. Except as provided in article 23, the Seller shall not indemnify any party.
  32. Regulatory Laws and/or Standards: The performance of the parties hereto is subject to the laws of the United States. The Seller takes reasonable steps to keep its products in conformity with various nationally recognized standards and such regulations, which may affect its products. However, the Seller recognizes that its products are utilized in many regulated applications and that from time to time standards and regulations are in conflict with each other. The Seller makes no promise or representation that its product will conform to any federal, 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 Seller. The Seller prices do not include the cost of any related inspections or permits or inspection fees.
  33. General Provisions: A contract will become binding only when a written acceptance of Buyer’s order is sent to Buyer by Seller and will be governed by the laws of the State of California. This contract will represent the entire agreement between the parties. Neither party may assign unless mutually agreed. All rights and remedies conferred under the contract or by any instrument of the law shall be cumulative and may be exercised singularly or concurrently. Failure by any party to enforce any contract term shall not be deemed a waiver of future enforcement of that or any other terms. The provisions of this contract are declared to be severable.