ACCEPTANCE.
The following Standard Terms and Conditions are applicable to all quotations and orders between Integrated Micro-Chromatography Systems, Inc. (“Supplier”) and any buyer (“Buyer”) of any products of Supplier (“Products”). These Standard Terms and Conditions are the only terms and conditions, oral or written, applying to the sale of Products to Buyer except for additional terms consistent with these Standard Terms and Conditions on prices, quantities, delivery schedules, and the description and specifications of the Products as set forth in an order form issued by Supplier (“Supplier Order Form”). Any specifications for a Product shall be only as set forth in a Supplier Order Form (“Specifications”). Supplier hereby objects to and rejects any other terms or conditions appearing on, incorporated by reference in or attached to any purchase order, acceptance, acknowledgment, invoice, transmittal or another document other than a Supplier Order Form. Supplier’s failure to object to any provision contained in a document or communication from Buyer shall not be a waiver of these Standard Terms and Conditions or any Supplier Order Form. All proposals, negotiations, representations, quotations or agreements, if any, written or oral, regarding the sale of any Products and made prior to or contemporaneous with the date of these Standard Terms and Conditions are merged herein. Acceptance of these Standard Terms and Conditions and any Supplier Order Form, both or either of which may be delivered to Buyer in electronic form by Supplier shall be deemed to have occurred upon the earlier of (i) executing or accepting these Standard Terms and Conditions, (ii) executing or accepting any Supplier Order Form, (iii) when Buyer is aware that Supplier has commenced performance thereunder or (iv) taking delivery of any Products. Accepted Supplier Order Forms may not be modified, canceled or rescheduled without Supplier’s written consent and are subject to modification, cancellation or reschedule charges determined by Supplier.
PRICES AND PAYMENT TERMS.
The prices for the Products are as set forth in an applicable Supplier Order Form and are payable in U.S. dollars. Any acceptance or issuance by Supplier of a Supplier Order Form does not provide Buyer with any price protection on Products that would be shipped more than 30 days after the date of the Supplier Order Form. The price of Products is subject to monthly adjustments unless fixed price standing order is agreed upon by the Supplier. Payment terms are specified in a Supplier Order Form. For U.S. and Canadian customers, unless otherwise specified payment term is a credit card or net 30 days from the date of shipment of Product under a supplier Order Form. Payments must be made by company check, credit card, automated clearing house (ACH) or wire transfer and received in Supplier’s account in U.S. dollars no later than thirty days from the shipment of the product. For international customers payments, unless otherwise agreed upon, must be made by wire transfer and received in Supplier’s account in U.S. dollars on or before the date of shipment of Product. Buyer will incur all charges, if any, related to the wire or ACH transfer of the funds to Supplier’s account. Prices exclude any tax or duty now or hereafter imposed upon the production, transportation, export, import, storage, delivery, sale, or use of Products. Any changes to any Specifications, payment terms or other matters in a Supplier Order Form may result in Supplier modifying pricing on the applicable Products. Without waiving any other rights or remedies available to Supplier under applicable law or otherwise, Supplier may, at its option, defer shipment or deliveries of Products until all past-due accounts of Buyer to Supplier have been satisfied in full. Buyer shall pay Supplier any and all governmental taxes, charges or duties of every kind (excluding any tax based upon Supplier’s income) that Supplier may be required to pay with respect to the production, transportation, export, import, storage, delivery, purchase, sale or use of the Products. Buyer shall provide Supplier, on request, with properly completed exemption certificates for any tax or duty from which Buyer claims an exemption.
SHIPMENT; RISK OF LOSS AND INSPECTION.
Shipment dates are approximate only. Unless different terms are specified in a Supplier Order Form, title and risk of loss shall pass to Buyer as follows: (1) with respect to domestic shipments, FOB Origin (Supplier shipping point), regardless of whether Supplier or Buyer pays for actual freight delivery charges, and (2) with respect to international shipments, Delivered at Place Intercoms (2010). Buyer shall inspect the Products for failure to conform to the quantity, quality, and other Specifications within 24 hours upon receipt of the Products. If Buyer fails to immediately report any non-conformity to Supplier, then Buyer shall have been deemed to have accepted that the Products are fully in conformity with the quality, quantity, and Specifications for the Products under the Supplier Order Form.
WARRANTY; DISCLAIMER OF WARRANTY.
Supplier warrants that each Product will conform in all material respects to its Specifications in a Supplier Order Form for the warranty period applicable to such Product as set forth in the Product documentation in all material respects; provided that the products are not altered, opened or otherwise affected due to action or omission of Buyer and otherwise stored and handled by the Buyer in accordance with the applicable Products requirements. Buyer’s exclusive remedy for Supplier’s breach of any warranty shall be for Supplier to, at Supplier’s election, provide to Buyer replacement product or issue Buyer a credit for the purchase price paid for the Product. No claim for breach of the warranty will be valid if made after the Product has been altered or used. Buyer shall afford Supplier a prompt and reasonable opportunity to inspect any Product for which a breach of the warranty claim is made. No Product shall be returned without Supplier’s express consent and the issuance of a return authorization and return instructions per Supplier’s customer return policy. EXCEPT FOR THE WARRANTIES IN THE IMMEDIATELY PRECEDING PARAGRAPH, SUPPLIER EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, CORRESPONDENCE WITH DESCRIPTION OR QUALITY, TITLE, QUIET POSSESSION AND NON-INFRINGEMENT.
LIMITATIONS OF LIABILITIES.
In no case shall Supplier be liable for any special, incidental or consequential damages based upon breach of contract, negligence, strict liability, tort, or any other legal theory, even if Supplier is notified of the possibility of such damages. In all cases, Supplier’s maximum liability arising out of or relating to these Standard Terms and Conditions and any Supplier Order Form, regardless of the legal theory, shall not exceed the contract price actually paid by Buyer in respect of the Products supplied by Supplier to which such liability relates. Supplier shall not be liable for any loss, damage, detention or delay due directly or indirectly to causes beyond its reasonable control, such as acts of God, acts of Buyer, acts of civil or military authority, fires, strikes, floods, epidemics, war, riot, delays in transportation, government restrictions or embargoes, or difficulties in obtaining necessary labor, materials, manufacturing facilities or transportation due to such causes. Supplier further reserves the right to allocate inventories and current production and to substitute suitable materials when, in its opinion, circumstances warrant such allocation or substitution.
CONFIDENTIALITY; NO REVERSE ENGINEERING.
Buyer acknowledges that the Products and all related formulas, recipes, techniques, processes, works of authorship, know-how, ideas, designs, drawings, models, specifications, practices, flow charts, and other information and intellectual property (collectively, “Confidential Information”) are confidential and proprietary products and information of Supplier and contain trade secrets and other proprietary and valuable information of Supplier. Therefore, Buyer shall only use the Products internally and for the purposes sold, will keep the Products and other Confidential Information strictly confidential and will not otherwise provide or make available or disclose the Products or any other Confidential Information to any third party. Without limiting the foregoing, Buyer agrees not to chemically analyze, disassemble, decompile or otherwise reverse engineer any or all of the Products or other Confidential Information of Supplier.
GENERAL TERMS.
These Standard Terms and Conditions do not constitute an agency relationship between the parties and neither party shall hold itself out to be the legal representative, agent, or employee of the other party for any purpose whatsoever. Neither these Standard Terms and Conditions nor any Supplier Order Form, nor any term or provision hereof or thereof may be modified, amended, or waived by Buyer, except by a writing duly executed by Supplier. These Standard Terms and Conditions and any Supplier Order Form shall be binding upon and inure to the benefit of Supplier and Buyer and each of their respective successors and permitted assigns. Neither party shall assign or delegate its rights or responsibilities under these Standard Terms and Conditions or applicable Supplier Order Form, or any portion thereof, without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, that Supplier may assign these Standard Terms and Conditions and any Supplier Order Form in connection with a merger, a sale of all or substantially all of its assets or a reorganization without the consent of Buyer by providing notice to Buyer.
If any provision of these Standard Terms and Conditions or any Supplier Order Form shall be held invalid or unenforceable by any court of competent jurisdiction, such provision shall be deemed deleted from these Standard Terms and Conditions or any Supplier Order Form and replaced by a valid and enforceable provision which, so far as possible, achieves the same economic and other benefits for the parties as the severed provision was intended to achieve, and the remaining provisions of these Standard Terms and Conditions and any applicable Supplier Order Form shall continue in full force and effect. These Standard Terms and Conditions together with any Supplier Order Forms represent the entire integrated contract of the parties with respect to the terms of purchase and sale of the Products, and supersedes all previous agreements and understandings between the parties with respect to the subject matter of these Standard Terms and Conditions, and may not be modified except by an instrument in writing signed by the duly authorized representatives of the parties. These Standard Terms and Conditions and all Supplier Order Forms shall be governed by, construed and interpreted in accordance with the laws of the State of South Carolina, without reference to (a) the conflicts of laws principles thereof and (b) the United Nations Conventions on Contracts for the International Sale of Goods. Any claim, action, suit or other proceeding initiated under or in connection with these Standard Terms and Conditions or any Supplier Order Form may be asserted, brought, prosecuted and maintained only in any federal or state court in the State of South Carolina having jurisdiction over the subject matter thereof, and the parties hereto hereby waive any and all right to object to the laying of venue in any such court and to any right to claim that any such court may be an inconvenient forum. The parties hereto submit themselves to the jurisdiction of each such court and agree that service of process on them in any such action, suit or proceeding may be affected by the means by which notices are to be given to it under these Standard Terms and Conditions. Any claim, action, suit or other proceeding initiated by Buyer in connection with these Standard Terms and Conditions must be brought within one year after delivery to Buyer of the applicable Products to which such claim, action, suit or other proceeding relates.
