- “Buyer” means the customer entity on the Sales Quote or, if no Sales Quote was issued, the name of the purchaser on the Purchase Order submitted to Salimetrics to purchase the Products.
- “Documentation” means the user documentation accompanying, or provided by Salimetrics regarding, or for use in connection with, a Product.
- “Product” means each item listed in the applicable Sales Quote or, in the event a Sales Quote was not issued, listed in Salimetrics’ then-current price list and identified in a Purchase Order or Sales Invoice.
2. TERMS, CONDITIONS AND ORDERS
- Terms and Conditions. Unless otherwise agreed in writing between the parties, the sale of any Products (except OnTimePoint Software) by Salimetrics to Buyer shall be governed by these Terms and Conditions of Sale, including any addenda attached hereto (these “Terms”), together with any written sales quotation issued by Salimetrics (a “Sales Quote”), any other terms and conditions expressly agreed to in writing by an authorized Salimetrics representative expressly referencing these Terms, and Buyer’s statement of the following information, and only such information, (i) the name and identity of the Products and/or Services purchased, (ii) quantity, (iii) bill to address, (iv) ship to address, and (v) if accurate, price (items (i)-(v), collectively, the “Purchase Order Specifics”), set forth on Buyer’s purchase order or other instrument submitted by Buyer or any of its authorized representatives in any manner, and only if accepted by Salimetrics (“Purchase Order”). These Terms, the Sales Quote (if any) and the Purchase Order Specifics shall be referred to herein collectively as this “Agreement.”
- Acceptance of Orders. No Purchase Order shall be binding upon Salimetrics unless and until accepted by Salimetrics, in writing or otherwise, and Salimetrics shall have no liability or obligation to Buyer with respect to orders that are not accepted. Purchase orders placed under a Sales Quote cannot be rescheduled or cancelled without prior written approval of Salimetrics. Any provision in Buyer’s Terms (as defined below) permitting Buyer at its convenience to unilaterally change or cancel a Purchase Order (in whole or part) once accepted by Salimetrics shall be void and of no effect.
3. USE RESTRICTIONS
- Buyer acknowledges that certain Salimetrics’ Products are labeled and intended FOR RESEARCH USE ONLY (RUO). Buyer agrees that if it elects to use an RUO Product for a purpose that would subject Buyer, its customers or any RUO labeled Product to the application of regulatory agency clearance or approval, Buyer shall be solely responsible for obtaining any required approvals.
4. PRICES, TAXES AND PAYMENT
- Prices. The price for any Product or related service shall be the applicable price stated in the Sales Quote.
- Taxes; Shipping Charges. Unless otherwise expressly stated in the Sales Quote, Buyer’s purchase price does not include any taxes, duties, or other governmental assessments (“Taxes”) that may be applicable to the Products, nor does the price include freight and insurance; Buyer will be responsible for any such charges specified on Salimetrics’ invoice(s). All Taxes shall be paid or reimbursed by Buyer, or in lieu thereof, Buyer shall provide Salimetrics with a tax exemption certificate acceptable to the applicable taxing authorities. Taxes and other charges payable by Buyer may be billed as separate items on Salimetrics’ invoice.
- Payment. Unless otherwise expressly stated in the Sales Quote, Salimetrics shall invoice Buyer for Product(s), and any and all Services ordered in connection with a Product, upon shipment of the Product, and such invoice shall cover Buyer’s purchase price for the Product and any freight, insurance, taxes or other applicable costs initially paid or payable by Salimetrics to be ultimately borne by Buyer, and Buyer shall pay all such amounts. Unless otherwise expressly stated in the Sales Quote, all invoices shall be issued and payable in U.S. Dollars, and are due and payable thirty (30) days from date of invoice, subject to credit approval. Each delivery shall be considered a separate and independent transaction and payment therefor made accordingly. Amounts outstanding thirty (30) or more days from the date of invoice shall be subject to a service charge of one and one-half percent (1.5%) per month, or the maximum allowed by applicable law, if less. Buyer shall pay all of Salimetrics’ costs and expenses (including reasonable attorneys’ fees) to enforce and preserve Salimetrics’ rights under this section. If Buyer fails to make any payment when due or if Salimetrics deems Buyer to be or to have become un-creditworthy, then, without prejudice to Salimetrics’ rights, Salimetrics may, at its option, cancel and/or suspend future deliveries, and/or require prepayment, letter of credit, or other payment method(s).
5. DELIVERY AND ACCEPTANCE OF PRODUCTS
- Unless otherwise expressly stated in the Sales Quote, all deliveries to destinations within the United States are F.O.B. shipping point (ICC Incoterms 2010). Unless specific shipping instructions have been agreed to in writing between Salimetrics and Buyer, Salimetrics will ship in accordance with its standard practices. For multiple unit and/or multiple Product orders, Salimetrics may make delivery in installments, and each installment shall be deemed to be a separate sale. Salimetrics may issue a separate invoice for each installment, which invoice shall be paid without regard to prior or subsequent installments. All Products shall be conclusively and irrevocably deemed accepted without qualification by Buyer upon delivery. Buyer, however, will notify Salimetrics or its representative in writing of any nonconformity to Salimetrics’ specifications promptly after delivery. Salimetrics shall be entitled to repair or replace damaged, missing or nonconforming Products, and such repair or replacement shall constitute Buyer’s sole and exclusive remedies, and Salimetrics’ sole liability and obligation, for any damaged, missing or nonconforming Products.
6. LIMITED WARRANTIES ON PRODUCTS
- Salimetrics warrants to and only to Buyer that for the lesser of (12) months from the date of shipping or until the expiration date of the Product, the Product shall be free from defects in material and workmanship, and conform to Salimetrics’ published specifications at the time of purchase in all material respects. Buyer’s sole and exclusive remedy, and Salimetrics’ sole and exclusive liability, under the foregoing warranty shall be for Salimetrics to repair or replace Product, as determined by Salimetrics in its reasonable discretion. These warranties shall not apply to, and shall be void for, any Product that was subject to improper or abnormal use, storage, or operating environment, or any abuse, neglect, negligence or accident.
7. WARRANTY DISCLAIMERS. THE EXPRESS WARRANTIES AND THE REMEDIES SET FORTH IN SECTIONS 5 ARE IN LIEU OF, AND SALIMETRICS AND ITS LICENSORS, SUPPLIERS AND REPRESENTATIVES HEREBY DISCLAIM, ALL OTHER REMEDIES AND WARRANTIES, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OR REGARDING RESULTS OBTAINED THROUGH THE USE OF ANY PRODUCT OR SERVICE (INCLUDING, WITHOUT LIMITATION, ANY CLAIM OF INACCURATE, INVALID OR INCOMPLETE RESULTS), IN EACH CASE HOWEVER ARISING, INCLUDING WITHOUT LIMITATION FROM A COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE, OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SALIMETRICS AND ITS LICENSORS, SUPPLIERS AND REPRESENTATIVES SHALL NOT BE LIABLE FOR LOSS OF USE, PROFITS, REVENUE, GOODWILL, BUSINESS OR OTHER FINANCIAL LOSS OR BUSINESS INTERUPTION, OR COSTS OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT DAMAGES FOR BREACH OF WARRANTY. ANY PRODUCT OR SERVICE PROVIDED WITHOUT A WRITTEN WARRANTY FROM SALIMETRICS IS PROVIDED “AS IS” WITHOUT (AND SALIMETRICS HEREBY DISCLAIMS) ANY WARRANTY, STATUTORY, EXPRESS, IMPLIED OR OTHERWISE.
8. LIMITATION OF LIABILITY. SALIMETRICS’, AND ITS LICENSORS’, SUPPLIERS’ AND REPRESENTATIVES’, LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR SALE OF THE PRODUCTS OR PROVISION OF SERVICES SHALL BE LIMITED TO THE AMOUNT PAID BY THE BUYER FOR THE PRODUCTS AND/OR SERVICES TO SALIMETRICS. IN NO EVENT SHALL SALIMETRICS BE LIABLE FOR COSTS OF LOSS OF USE, PROFITS, REVENUE, GOODWILL, BUSINESS OR OTHER FINANCIAL LOSS OR BUSINESS INTERUPTION, OR COSTS OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, WARRANTY, PURSUANT TO ANY STATUTE, OR ON ANY OTHER BASIS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR SALE OF THE PRODUCTS OR SERVICES, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT SALIMETRICS IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Nothing in this Agreement shall operate so as to exclude or limit the liability of Salimetrics, its licensors, suppliers or representatives for any liability which cannot be excluded or limited by law.
9. INDEMNITY AND INSURANCE
- Indemnification of Buyer. Salimetrics agrees to defend Buyer against any third party claim, proceeding or action (“Claim”) to the extent the Claim alleges that any Product sold to Buyer hereunder, as delivered to Buyer by Salimetrics, directly infringes or misappropriates, as applicable, any patent, copyright, or other intellectual property right. Salimetrics shall have no liability or obligation pursuant to this Section 8 with respect to Claims resulting from (i) modification of the Product other than by Salimetrics or its authorized service provider, or (ii) use of the Product other than in accordance with the Documentation and this Agreement (“Excluded Causes”). Notwithstanding any other provision, the foregoing states Salimetrics’ sole liability and obligation, and Buyer’s exclusive remedy, arising out of any actual or alleged intellectual property infringement or misappropriation, as applicable, of any kind, or any actual or alleged breach of any representation or warranty (statutory, express or implied) that the Products or Services do not infringe or misappropriate, as applicable, any third party intellectual property anywhere in the world.
- Indemnification of Salimetrics. Buyer agrees to defend Salimetrics against any Claim (i) to the extent the Claim alleges infringement or misappropriation, as applicable, of any patent, copyright, or other intellectual property right as a result of any Excluded Cause, or (ii) that arises in connection with Buyer’s use of Products in violation of any applicable law or regulation.
10. INTELLECTUAL PROPERTY. Except to the extent prohibited by applicable law, Salimetrics shall retain all ownership of its intellectual property rights with respect to the Products.
- Notices. All notices and other communications required or permitted hereunder shall be in writing. Such notices shall be deemed to have been effective when delivered by mail, or if delivery is accomplished electronically, when deemed to have occurred by transmission. All notices shall be in English.
- Governing Law and Venue. This Agreement and any disputes arising out of or relating do this Agreement (including its formation or termination) or Salimetrics’ Products (“Disputes”) shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania, U.S.A.
- Export Controls. Buyer agrees that it will not export or transfer Product for re-export in violation of any United States laws or the laws of any other jurisdiction, or to any denied or prohibited person, entity, or embargoed country in violation of such laws.
- Modifications. This Agreement and any Addendum may only be amended or supplemented upon the mutual written agreement of both parties.
- Waivers. The waiver by either party of a term or provision of this Agreement or of any Addendum, or of the other party’s breach of this Agreement or of any Addendum shall not be effective unless such waiver is in writing and signed by such party. No waiver by a party of a breach by the other party of this Agreement or of any Addendum shall constitute a waiver of any other or subsequent breach by the other party.
- Severability. If any section, paragraph, provision or clause or any portion thereof in this Agreement shall be found or be held to be invalid or unenforceable in any jurisdiction in which this Agreement is being performed, the remainder of this Agreement shall be valid and enforceable and the parties shall negotiate, in good faith, a substitute, valid and enforceable provision which most nearly effects the parties’ intent in entering into this Agreement.
- Force Majeure. Except for the payment of money, neither party shall be liable to the other party for any failure or delay in the performance of any of its obligations under this Agreement for the period and to the extent such failure or delay is caused by civil unrest, threat of or actual acts of terrorism or war, embargoes, governmental actions, acts of God, earthquakes, floods, storms, fires, supplier delay, accidents, explosions, epidemics, quarantine restrictions, or other such contingencies beyond the reasonable control of the applicable party (“Force Majeure”). The party affected shall notify the other party as soon as practicable of any anticipated delay due to Force Majeure.
- No Third-Party Beneficiaries. This Agreement has been made and is made solely for the benefit of Salimetrics and Buyer and their respective permitted Subsidiaries, successors and assigns. Nothing in this Agreement is intended to (i) confer any rights or remedies under or by reason of this Agreement on any persons or entity other than the parties to this Agreement and their respective permitted successors and assigns; or (ii) relieve or discharge the obligation or liability of any third persons or entities to any party to this Agreement.
- General. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. The English language shall govern the meaning and interpretation of this Agreement. This Agreement (including without limitation all exhibits hereto and all attachments thereto, which are incorporated herein by this reference as though fully set forth in the body of this Agreement) embodies the final and complete understanding of the parties with respect to the subject matter hereof, superseding all prior oral or written communications. Neither party has entered into this Agreement in reliance on any statement or representation not expressly set out herein. No oral explanation or oral information by either party shall alter the meaning or interpretation of this Agreement.
- Authority. The individual accepting this Agreement or the applicable Sales Quote on behalf of Buyer represents and warrants that he/she is authorized and empowered to bind Buyer to all of the terms and conditions set forth in this Agreement and all applicable Addenda.
- Independent Contractors. Buyer’s relationship with Salimetrics is that of an independent contractor, and nothing in this Agreement or in any Addendum is intended to, or shall be construed to, create a partnership, agency, joint venture, employment or similar relationship.
Terms and Conditions Rev.01 23Apr2021