STANDARD TERMS AND CONDITIONS OF SALE NORTH AMERICA
These Standard Terms and Conditions of Sale (the “Terms”) set forth the terms and conditions that govern purchases by any purchaser (the “Buyer”) in North America of equipment and accessories (the “Products”) and service support and repair services (the “Services”) from GERSTEL, Inc. (“GERSTEL”). GERSTEL reserves the right, at any time and in its sole discretion, to update, revise or otherwise modify the Terms without notice. The Terms and any purchase orders and other agreements regarding the purchase of the Products and/or Services shall be referred to as the “Agreement.”
1. OFFER FOR SALE.
All agreements between the Buyer and GERSTEL to purchase the Products and/or Services shall be governed by the terms and conditions herein. The Buyer and GERSTEL agree that any modifications, changes, alterations of the terms and conditions herein must be in writing and signed by the Buyer and GERSTEL. GERSTEL hereby objects to any additional or different terms which may be contained in any of the Buyer’s purchase orders, acknowledgements or other documents or any communications received from the Buyer, and the Buyer and GERSTEL hereby agree that any such attempts shall be null and void and not deemed a part of the terms and conditions hereunder or any resulting order. All purchase orders must reference the applicable GERSTEL quotation number.
Any offer hereunder shall expire thirty (30) days following its date, unless the Products and/or Services are provided by GERSTEL and accepted by the Buyer. No order may be cancelled, modified or altered by the Buyer, without written consent of GERSTEL, which may be withheld in its sole discretion.
2. PRICE AND PAYMENT TERMS.
The prices for the Products and Services are based on GERSTEL’s current prices, in effect at the time of order, for the Products and Services. All current prices are subject to change by GERSTEL at any time without prior notice.
All payments for the Products and the Services are payable in only United States Dollars. The Buyer shall make payment as follows, unless GERSTEL requires payment in advance or upon different terms:
(i) for orders greater than or equal to One Hundred Thousand Dollars ($100,000.00) in the aggregate, payment of fifty percent (50%) of the amount due at the time of order and payment of the balance of the amount due within thirty (30) days following the date of invoice, or
(ii) for orders less than One Hundred Thousand Dollars ($100,000.00) in the aggregate, payment within thirty (30) days following the date of invoice.
Payments for all Products are due as set forth above, regardless of whether or not the installation of such Products has been completed. In the United States of America, payments may be made only in cash or by wire transfer or by automated clearing house (“ACH”) transfer or by certain credit cards.In Canada, payments may be made only in cash or by ACH transfer or by certain credit cards.
Notwithstanding the foregoing, for all countries other than the United States of America and Canada, the Buyer shall make payment in full in advance by wire transfer or by ACH transfer or by certain credit cards.
Notwithstanding the foregoing, at its option at any time, GERSTEL may require the Buyer to make payment by irrevocable letter of credit or by promissory note secured by purchase money security interest, upon terms and conditions satisfactory to GERSTEL in its sole discretion, and GERSTEL may defer shipment or cancel any order if the Buyer does not promptly provide such payment.
To assure proper credit to the Buyer’s account, the Buyer is encouraged to send payment notifications, together with the applicable invoice number, to GERSTEL via email at firstname.lastname@example.org or such other mail as directed by GERSTEL.
Charges will be assessed on past due accounts as follows: (i) a late charge at a rate equal to the lesser of one and one-half percent (1.5%) each month or the highest rate permitted by applicable law and (ii) reasonable collection costs and expenses, including attorneys’ fees and court costs. The Buyer’s failure to pay in accordance with the provisions of this Section 2 shall entitle GERSTEL, without prejudice to its rights to damages, to suspend or cancel any outstanding orders or require further assurance of payment from the Buyer.
3. TAXES AND OTHER CHARGES.
The Buyer shall pay, in addition to the prices as set forth herein, any and all manufacturer’s tax, occupation tax, use tax, property tax, sales tax, excise tax, value-added tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever, except for taxes on GERSTEL’s income, imposed by any governmental authority on or measured by the transaction between GERSTEL and the Buyer. The Buyer shall indemnify, defend and hold harmless GERSTEL against all claims, losses, damages, liabilities, costs and expenses, including reasonable attorneys’ fees, to the extent such claims arise out of any breach of this Section.
The Products shall be delivered, unless otherwise agreed to by the parties, freight on board place of shipment upon delivery to the carrier designated by GERSTEL at GERSTEL’s plant in Linthicum, Maryland USA. The Buyer shall be responsible for all transportation expenses from GERSTEL’s plant or other loading point, such expenses shall be included on the applicable invoice for Products. Delivery of the Products to a carrier at GERSTEL’s plant or other loading point shall constitute delivery to the Buyer; and regardless of shipping terms or freight payment, all risk of loss or damage in transit shall be borne by the Buyer.
GERSTEL reserves the right to make delivery in partial installments, unless otherwise expressly stipulated herein. All such partial installments will be separately delivered and paid for when due, without regard to subsequent deliveries. Any delay in delivery of any partial installment shall not relieve the Buyer of its obligation to accept remaining deliveries.
The Buyer acknowledges that all delivery dates are approximate. In no event shall GERSTEL be liable for any delays in delivery of the Products and/or Services.
The method and route of shipment shall be at the discretion of GERSTEL unless the Buyer shall specify otherwise; any such additional expense of the method or route of shipment specified by the Buyer shall also be borne entirely by the Buyer.
5. INSPECTION UPON RECEIPT AND RETURNS.
The Buyer must examine the Products when they are received by the Buyer; provided however, that the Buyer must examine the system level Products only after the packaging for such Products is opened by the GERSTEL representative who will install such Products. The Buyer shall make any and all claims for shortages, defects or other errors in delivery in writing to GERSTEL within thirty (30) days of receipt of shipment. Failure to give such notice shall constitute unqualified acceptance of all shipments made prior to GERSTEL’s receipt of the Buyer’s notice of such claims, and shall constitute a waiver of all such claims by the Buyer. Any and all claims for loss or damage to the Products in transit should be made directly to the carrier and not to GERSTEL.
To make any return of the Products to GERSTEL, the Buyer must obtain a return merchandise authorization number by contacting GERSTEL, at (410) 204-7259 or email@example.com or such other emails directed by GERSTEL, prior to returning any Products to GERSTEL. The Buyer shall pay all costs and expenses related to, and bear the risk of loss and damage for, shipping of returned Products to GERSTEL. GERSTEL’s restocking fees shall apply to all returns. Any returns made on a cash on delivery basis or without a return merchandise authorization number may be refused by GERSTEL, in its sole discretion.
Notwithstanding the passing of the risk of loss and damage from GERSTEL to the Buyer as described herein, GERSTEL shall retain title to the Products until it has received payment in full of all such amounts owed by the Buyer to GERSTEL due in connection with the Products delivered hereunder or any other account.
If the Products ordered by the Buyer are not shipped within fifteen (15) days after notification to the Buyer that the Products are ready for shipment for any reason beyond GERSTEL’ reasonable control, including without limitation, the Buyer’s failure to give shipping instructions, GERSTEL may store the ordered Products at the Buyer’s risk in any warehouse or yard or upon GERSTEL’s premises, and the Buyer shall immediately pay all handling, transportation and storage charges at the prevailing commercial rates upon submission of invoices by GERSTEL for such handling, transportation and storage charges.
8. CHANGES TO PRODUCTS.
GERSTEL reserves the right to make, at any time, changes in design and construction of the Products or in the scope of the Services as GERSTEL deems appropriate, without prior notice to the Buyer; provided that such changes do not have a material adverse affect on the Products and/or the Services. For example, GERSTEL may provide to the Buyer products and/or services that have the functionality and performance of the Products and/or the Services that the Buyer ordered, but changes in what is provided and what is described in a specification sheet, catalog or description of the Products and/or Services are possible. GERSTEL may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority or non-availability of materials from suppliers.
9. LIMITED WARRANTY.
GERSTEL warrants to the Buyer that the Products are free of defects in materials and workmanship under conditions of normal use for a period of one (1) year from date of shipment. Notwithstanding the foregoing, this limited warranty shall not be applicable to: (i) small parts and accessories, (ii) consumables such as sorbent tubes and o-rings, (iii) defects resulting from customer supplied software interfaces and supplies, (iv) defects resulting from unauthorized modification of the Products, (v) defects resulting from unauthorized service of the Products, and (v) defects resulting from operation outside the published GERSTEL specifications. GERSTEL warrants to the Buyer that small parts and accessories and consumables are free of defects in materials and workmanship under conditions of normal use for a period of thirty (30) days from date of shipment. Notwithstanding the foregoing, components and other brand equipment supplied but not manufactured by GERSTEL are covered under their respective manufacturer’s warranty in lieu of such limited warranty.
GERSTEL warrants to the Buyer that the Services are free of defects in materials and workmanship under conditions of normal use for a period of thirty (30) days from date of service.
Failure to perform recommended routine maintenance, alterations or repairs made other than in accordance with GERSTEL’s directions, or removal or alteration of identification markings in any way will void this limited warranty.
GERSTEL’s sole responsibility shall be, at its option, during the warranty period either: (i) to repair or replace any defective Products, at its facility or other location approved by it, during GERSTEL’s normal working hours, at no charge to the Buyer; or (ii) to refund to the Buyer all amounts paid, less a reasonable allowance for use, for such defective Products. To make any return of the defective Products to GERSTEL, the Buyer must obtain a return merchandise authorization number by contacting GERSTEL, at (410) 204-7259 or firstname.lastname@example.org or such other email as directed by GERSTEL, prior to returning any defective Products to GERSTEL. The Buyer shall be responsible for all costs of shipping any Products to GERSTEL or other location for warranty service. Any returns made on a cash on delivery basis or without a return merchandise authorization number may be refused by GERSTEL, in its sole discretion. In the event that GERSTEL repairs or replaces any such defective Product, GERSTEL shall pay all reasonable costs and expenses for shipping to the Buyer such repaired or replacement Products. The risk of loss and damage regarding shipment of such repaired or replacement Products shall be borne by the Buyer.
THIS WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY GERSTEL, AND ITS SUPPLIERS WITH RESPECT TO PRODUCTS AND SERVICES SOLD OR PROVIDED BY GERSTEL. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, GERSTEL AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY OR COMMON LAW, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND TITLE. GERSTEL AND ITS SUPPLIERS DO NOT WARRANT THAT THE PRODUCTS WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION NOR THAT THE FUNCTIONS CONTAINED IN THE PRODUCTS WILL MEET ANY REQUIREMENTS OR NEEDS BUYER MAY HAVE.
10. LIMITATION OF LIABILITY.
EXCEPT FOR THE LIMITED WARRANTY OBLIGATIONS SET FORTH HEREIN, THE BUYER EXPRESSLY UNDERSTANDS AND AGREES THAT GERSTEL AND ITS SUPPLIERS SHALL NOT BE LIABLE TO THE BUYER OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE CONSEQUENTIAL OR EXEMPLARY DAMAGES, EVEN IF GERSTEL OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER SUCH LIABILITY IS BASED UPON CONTRACT, TORT, NEGLIGENCE OR OTHER LEGAL THEORY. EXCEPT FOR THE LIMITED WARRANTY OBLIGATIONS SET FORTH HEREIN, THE BUYER EXPRESSLY UNDERSTANDS AND AGREES THAT GERSTEL’S AND ITS SUPPLIERS’ CUMULATIVE LIABILITY TO THE BUYER OR ANY THIRD PARTY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE AMOUNT PAID TO GERSTEL UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PRIOR TO ANY CLAIM.
11. INTELLECTUAL PROPERTY.
The Buyer acknowledges that GERSTEL or its suppliers retain all right, title and interest in and to any and all copyrights, trademarks, patents, trade secrets and other intellectual property and proprietary rights related to the Products and the Services (collectively, the “Product Technology”). The Buyer agrees that it has no right, title or interest in or to the Product Technology or any copies thereof. The Buyer may not remove or obscure any copyright notice, trademark notice or other notices contained within the Product Technology. GERSTEL’s name and logo, and all related product and service names, design marks and slogans are the trademarks, service marks or registered trademarks of GERSTEL and may not be used or modified in any manner without the prior written consent of GERSTEL.
Any other use of the Product Technology other than as expressly set forth herein without GERSTEL’s prior written consent, which may be withheld at GERSTEL’s sole and absolute discretion, is strictly prohibited and all implied licenses are disclaimed.
The Buyer represents and warrants to GERSTEL that: (i) he is at least 18 years old; (ii) in the event that the Buyer is an entity, that it has the full right, power and authority to enter into this Agreement; (iii) the performance by the Buyer of its obligations and duties hereunder, do not and will not violate any agreement to which the Buyer is a party or by which the Buyer is otherwise bound; and (iv) the Buyer’s use of the Product Technology complies in all respects with all applicable laws, statutes, regulations, ordinances and other rules.
13. EXPORT RESTRICTIONS.
This Agreement is expressly made subject to any applicable laws, regulations, orders, or other restrictions on the export of the technology or information about the Product Technology which may be imposed from time to time. The Buyer shall not export the Product Technology, information about the Product Technology or any product containing the Product Technology without complying with such laws, regulations, orders, or other restrictions. The Buyer agrees to indemnify and hold harmless GERSTEL against all claims, losses, damages, liabilities, costs and expenses, including reasonable attorneys’ fees, to the extent such claims arise out of any breach of this Section.
14. GOVERNING LAW.
THE PARTIES AGREE THAT THIS AGREEMENT AND THE RELATIONSHIP BETWEEN THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND OF THE UNITED STATES OF AMERICA, WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAWS. THE PARTIES AGREE THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY TO THIS AGREEMENT. THE PARTIES AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE FEDERAL AND/OR STATE COURTS IN THE STATE OF MARYLAND FOR THE RESOLUTION OF ANY DISPUTES AMONGST THE PARTIES UNDER THIS AGREEMENT.
15. GENERAL INFORMATION.
This Agreement constitutes the entire agreement between the Buyer and GERSTEL with respect to the subject matter herein, superseding any prior agreements between the Buyer and GERSTEL. The Buyer further acknowledges and agrees that the Buyer may not assign any part of this Agreement without GERSTEL’s prior written consent, which may be withheld at its sole discretion. This Agreement shall inure to the benefit of each party’s successors and assigns. GERSTEL shall not be deemed to be in breach of the Agreement and thereby liable to the Buyer or any third party for any delays in the performance of its obligations hereunder caused by fire, explosion, act of God, strikes, war, riot, government regulation, delay in transportation, inability to obtain necessary labor, materials or manufacturing facilities or any other act or cause beyond the reasonable control of GERSTEL. The failure of GERSTEL to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement shall remain in full force and effect.
16. CONTACTING GERSTEL.
If the Buyer has any questions about this Agreement, or any question or problem regarding the Products, the Services and/or the Product Technology, the Buyer can contact GERSTEL by mail at GERSTEL, Inc., 701 Digital Drive, Suite J, Linthicum, Maryland 21090, USA or by telephone at (410) 247-5885.
Effective: September 1, 2011
The services provided by GERSTEL, Inc. (“GERSTEL”) under GERSTEL’s Service Support (the “Service Support”) are as follows:
1. Service Support provides one (1) year of service support from GERSTEL for the applicable GERSTEL products set forth on the associated quotation (the “GERSTEL Products”). The Service Support commences on the date of invoice.
2. Service Support provides for the repair or replacement of the GERSTEL Products as a result of failure of such GERSTEL Products. For purposes of clarity, Agilent branded products that are sold by GERSTEL with its GERSTEL Products are not covered under Service Support, but rather are only covered under the terms and conditions of the applicable Agilent warranty.
3. In the event that the original warranty period for the applicable GERSTEL Product has expired prior to the purchase of the Service Support, GERSTEL’s designated representative must visit the customer’s site to ensure that the existing GERSTEL Product is in a satisfactory and working condition before this Service Support will apply to such GERSTEL Product. The customer is responsible for any and all costs in connection with this customer site visit.
4. In the event that a GERSTEL Product covered under the Service Support fails, GERSTEL agrees to pay for the repair or replacement of such GERSTEL Product. Any repair or replacement of such covered GERSTEL Product may be made with an identical product or a functionally equivalent product.
5. During the term of the Service Support, the customer will have access to priority direct phone support from GERSTEL’s engineers for the Service Support provided hereunder. Service Support is available as follows: Monday through Friday, 8 a.m. to 5:00 p.m. eastern standard time, with the exception of all United States national holidays. Service requests to GERSTEL will be promptly answered during such times, and otherwise within twenty-four (24) hours during such support period. If it is determined that a GERSTEL Product needs repair or replacement, an identical product or one of functional equivalence may be shipped to the customer for temporary use. If repair is possible, the repaired GERSTEL Product will be shipped back to the customer by overnight mail.
6. Service Support does not cover GERSTEL Products that are consumables and the following: connection tubing and transfer lines, ferrules and fittings, syringes and syringe needles, TDS tubes, CIS liners, MPS syringe holder assemblies, vials, caps and septa.
7. The Service Support does not cover any failure or expenses due to, resulting from, or caused by any of the following:
– A non-covered or modified GERSTEL Product.
– Any GERSTEL Product that has not failed, but which a service technician recommends to be – repaired or replaced.
– Abuse, larceny or attempted larceny, theft, fire, explosion, or negligence. – Lack of normal maintenance (for example, failure to change liners or cleaning components as needed).
– Not using proper gases, electricity or other utilities as specified by GERSTEL. – Improper use of GERSTEL Products or use in a harsh environment.
– Failure caused by use of the GERSTEL Products in conjunction with other non-GERSTEL Products (except for use with Agilent branded products).
For purposes of clarity, while GERSTEL shall make reasonable attempts to insure the success of the customer in his or her application of the GERSTEL Products, method development is ultimately the responsibility of the customer.
8. Upon first contact from a customer, GERSTEL will determine if a customer site visit is necessary or if an issue can be solved remotely via phone and email support. A minimum of forty-eight (48) hours is required to arrange and perform a customer site service, such time following the time when it is determined that an issue cannot be resolved remotely. The response time to any service issue will be determined on the basis of urgency and available manpower and may be performed by a third party service organization. Customer site visits by Agilent engineers will be coordinated by GERSTEL through the Agilent service system and are also subject to available manpower.
9. Service Support is provided by GERSTEL in accordance with the terms and conditions of GERSTEL’s Terms and Conditions of Sale.
Effective: September 1, 2011