Effective July 1, 2016
2. Orders and Releases
Once accepted by Seller, an order or release from Buyer for Products or Services may be suspended, delayed or cancelled by Buyer only with the written approval of Seller. Seller may impose cancellation and other charges in connection with the suspension, delay or cancellation of an order or release for Products and Services, and, in addition to any other rights and remedies, may require that Buyer (i) purchase from Seller any and all completed custom or non-standard Products produced for such order or release, and any quantities of other completed Products produced for such order or release that exceed the quantities of such other Products that can be readily sold by Seller to third parties, and (ii) reimburse Seller for its inventory cost of any and all work-in-process, materials, components or parts for such order or release that cannot be readily used or reworked for other products that can be readily sold by Seller to third parties, any reworking costs related to reworking work-in-process, materials, components or parts for such order or release, and any cancellation and other charges payable to suppliers of materials, components or parts for such order or release.
3. Price and Surcharges
The prices and surcharges for Products and Services shall be the relevant prices and surcharges set forth in or determined in accordance with the Final Proposal. Unless stated otherwise in the Final Proposal, all prices are FCA (Incoterms 2010) Seller’s facility, and all prices are net prices to Seller and do not include any freight, shipping, special packaging or handling, insurance, or taxes, levies, duties, tariffs, customs or other fees or charges of any nature imposed by any governmental authority, all of which (including any related withholding) will be the sole responsibility of and be required to be paid by Buyer. In the event Seller pays any freight, shipping, special packaging or handling, insurance, or taxes, levies, duties, tariffs, customs or other fees or charges that are the responsibility of Buyer, Seller may invoice Buyer therefor. Buyer’s refusal or inability to accept or take delivery of Products shall not excuse Buyer from making payment for Products.
4. Payment Terms
Seller may invoice Buyer for Products upon shipment, and Seller may invoice Buyer for Services upon performance; provided, however, that (i) if Buyer requests a delay in shipment of Products, Seller may invoice Buyer for such Products prior to shipment, and (ii) if Buyer requests a delay in performance of Services, Seller may invoice Buyer for or such Services prior to performance. Unless provided otherwise in the Final Proposal, all payments must be made to Seller in the same currency as the relevant prices. If payment terms are stated in a Final Proposal, the payment terms for Products and Services shall be the payment terms stated in the Final Proposal. If payment terms are not stated in a Final Proposal, the payment terms for Products and Services shall be net thirty (30) days after date of invoice. Whether or not payment terms are stated in a final Proposal, Seller reserves the right, in its sole discretion, to require payment for Products in advance of production, in advance of shipment (e.g., C.I.A.), or upon delivery (e.g., C.O.D.) and to require payment for Services in advance of performance, if and whenever the account of Buyer or any of its affiliated entities with Seller or any of its affiliated entities is not current or Seller feels insecure concerning its receipt of payment. Payments by wire transfer shall be made in accordance with the wire transfer instructions set forth in Seller’s invoice. Payments by check shall be sent to the payment location specified in Seller’s invoice and otherwise be made in accordance with the payment instructions set forth in Seller’s invoice. Each shipment of Products shall be considered a separate and independent transaction for which Buyer must make payment. If any amount payable to Seller by Buyer is not paid when due, Seller shall be entitled to recover from Buyer all attorneys fees and other costs and expenses it may incur in seeking to collect such past due amount and shall have the right to impose on Buyer a late charge on the past due amount from the date due until paid at the rate of 2% per month or, if less, the highest rate permitted by law. Seller may pursue a collection action against Buyer in any court of competent jurisdiction to collect any past due amount.
5. Security for Payment
To secure the due and punctual payment of the price for Products and Services and other amounts payable to Seller by Buyer, Seller shall have and retain, and Buyer grants to Seller, a first lien and security interest in all Products, in all Other Products (as defined in Paragraph 9 (Other Products) below), and in all proceeds in respect of Products and Other Products. If the price for any Products or Services or any other amount payable to Seller by Buyer is not paid when due, Seller shall have and may exercise any and all rights and remedies of a secured party under Applicable Law and any and all other rights and remedies it may have by contract, at law or in equity. In addition to the rights and remedies it may have under Applicable Law or otherwise have by contract, at law or in equity, Seller shall have the right to withhold shipment of Products, to recall and retake Products, to repossess Products, to take possession of Other Products, and to direct Buyer’s customers to make payment directly to Seller for Products and Other Products, all without notice to Buyer and without initiating any legal proceedings. Seller shall have the right to execute such documents, make such filings and take such other actions in its own name and/or in the name of Buyer and to require Buyer to make such filings, execute such documents and take such other actions, as Seller may deem necessary or appropriate from time to time to evidence and confirm its first lien and security interest and exercise its rights and remedies as a secured party.
6. Shipment, Delivery, and Performance
Seller will ship Products to the address and endeavor to use the carrier specified by Buyer in the relevant Buyer Documentation. If the relevant Buyer Documentation specifies “common carrier” or no carrier is specified, the Products will be shipped via such means as Seller selects in its sole discretion. All quoted, proposed, agreed and scheduled shipment, delivery and performance dates are merely estimates, and Seller shall have no liability or responsibility for any penalties or damages in connection with late shipment or delivery of Products or late performance of Services. If any export approvals, authorizations licenses or permits are required in respect of any Products or Services, Seller shall not be required to ship such Products or perform such Services unless and until all such required export approvals, authorizations licenses and permits have been obtained. Shipments and deliveries of Products and performance of Services may be made in installments in Seller’s sole discretion. Title and all risk of loss or damage to each Product shall pass to Buyer upon deposit of such Product with the carrier for shipment, and Seller shall have no liability or responsibility for any loss or damage to a Product after such Product is deposited with the carrier for shipment. If Buyer requests a delay in shipment of Products, Seller may impose storage and handling charges in connection with the delay. Any claim that the wrong Product or the wrong quantity of Product was shipped must be asserted within 30 days of the date of shipment, and, unless written notice of a wrong Product or a wrong quantity of Product is received by Seller within 30 days after the date of shipment, Buyer shall be barred from asserting any claim for wrong Product or wrong quantity of Product in connection with a shipment.
To the extent that any Product or Service includes software in any form, including firmware (“Software”), such software is not sold to Buyer or its customers, but is only licensed on a limited, non-exclusive basis in the form delivered by Seller for use by Buyer and its customers with such Products or Services. In the case of Software, all references in these Terms and Conditions or any offer, quote or other proposal to “sell,” “purchase” or the like will be deemed to mean a license to use such Software as provided in this Paragraph 7. Buyer shall not, and Buyer shall take reasonable measures to ensure that its customers do not, duplicate, distribute, modify, reverse-engineer or derive the source code for any Software, remove any copyright or other notices from any Software, or use any Software in any way except as authorized by Seller.
8. Prototypes, Drawings, Etc.
As between Buyer and its customers, on the one hand, and Seller and other IDEX Health & Science Units, on the other hand, Seller and/or another IDEX Health & Science Unit shall own and retain all right, title and interest in and to all prototypes, drawings, schematics, designs, specifications, samples, molds and other tooling, and technical documentation that may be prepared, created or provided wholly or partially by Seller and/or another IDEX Health & Science Unit in connection with any Products or Services (“Prototypes, Drawings, Etc.”), notwithstanding any suggestion or other contribution that Buyer or any of its customers may make relative to improvements in, or changes with respect to, such Prototypes, Drawings, Etc. Prototypes, Drawings, Etc, may be used only for Products supplied by Seller and/or another IDEX Health & Science Unit and Services provided by Seller and/or another IDEX Health & Science Unit and only as authorized by Seller and/or another IDEX Health & Science Unit, and Buyer shall not, and Buyer shall take reasonable measures to ensure that its customers do not, attempt to use Prototypes, Drawings, Etc. other than for Products supplied by Seller and/or another IDEX Health & Science Unit and Services provided by Seller and/or another IDEX Health & Science Unit or in any other manner attempt to misuse or misappropriate any Prototypes, Drawings, Etc..
9. Other Products
In the event that any Product is incorporated or installed in, or combined with, another product, material, component or part (“Other Product”): (i) Seller shall have no risk, liability, obligation or responsibility of any kind with respect to such Other Product, and (ii) Buyer shall be solely liable, obligated and responsible for all Other Products in which it may incorporate or install, have a third party incorporate or install, or authorize a third party to incorporate or install any Products and/or with which it may combine, have a third party combine, or authorize a third party to combine any Products.
10. Limited Warranty – Products
|IDEX Health & Science LLC||All Products||12 Months|
|EC KK||All Products||12 Months|
|CVI Laser, LLC dba Melles Griot||Lasers||12 months or 5,000 operating hours, whichever occurs first|
|All Other Products||12 Months|
|Semrock, Inc||Sputtered Optical Filters (excluding High Energy Optical Filters)||10 Months|
|All Other Products||12 Months|
The warranty period for all Products commences on the date the Product is deposited by Seller with the carrier for shipment.
11. Limited Warranty – Services
12. Disclaimers and Limitations
13. Intellectual Property Rights
As between Buyer and its customers, on the one hand, and Seller and the other IDEX Health & Science Units, on the other hand, Seller and/or another IDEX Health & Science Unit shall own and retain all right, title and interest in and to all ideas, concepts, inventions, patents, copyrights, trademarks, trade secrets and other intellectual property and proprietary rights in connection with the Products and Services (“Intellectual Property”), notwithstanding any suggestion or other contribution that Buyer or any of its customers may make relative to improvements in, or changes with respect to, the Products or Services. Intellectual Property may be used only as authorized by Seller and/or another IDEX Health & Science Unit, and Buyer shall not, and Buyer shall take reasonable measures to ensure that its customers do not, attempt to duplicate or reverse-engineer the Products or in any other manner attempt to misuse or misappropriate any Intellectual Property.
Products may contain one or more trademarks of Seller and/or another IDEX Health & Science Unit (“Trademarks”). Buyer shall have a non-exclusive, revocable license to use Trademarks in referring to Products in manuals, instructions, procedures and other related documents and materials and in promotional and marketing documents and materials pertaining to such Products and/or to Other Products in which such Products are incorporated or installed, or with which such Products are combined; provided, however, that Buyer shall (i) not alter or modify any Trademark, (ii) affix the appropriate trademark symbol (™ or ®) to the most prominent usage of each Trademark in all documents and materials, (iii) attribute ownership of each Trademark to Seller and/or another IDEX Health & Science Unit as directed by Seller in all documents and materials, (iv) notify Seller in advance of each proposed use of a Trademark, and (v) if requested by Seller, allow Seller to review and approve in advance each proposed specific use of a Trademark. As between Buyer and its customers, on the one hand, and Seller and the other IDEX Health & Science Units, on the other hand, all use of Trademarks shall insure solely to the benefit of Seller and/or another IDEX Health & Science Unit. Buyer and its customers shall use Trademarks only as authorized by Seller and/or another IDEX Health & Science Unit, and Buyer shall not, and Buyer shall take reasonable measures to ensure that its customers do not, do any thing or take any action that could reduce, diminish or impair the right, title and interest of Seller or any other IDEX Health & Science Unit in and to any Trademark.
Seller may from time to time, in its sole discretion, authorize or require that Products be returned to it. All such returns shall be subject to such conditions as Seller may specify. All such returns shall be subject to and must be in compliance with Seller’s Return Goods Policy as in effect at the time of the return. Among other conditions for return of Products for any reason, Seller may require that (i) a Return Goods Authorization (RGA) be obtained from Seller prior to the return, (ii) Buyer or its customer pay all freight and shipping in connection with the return, (iii) Buyer or its customer bear all risk of loss or damage during shipment, (iv) no Product be returned unless and until it has been flushed clean of chemicals, solvents and buffers, (v) no Product be returned if such Product or any Other Product in which it is incorporated or installed or with which it is combined has been used in connection with any hazardous, corrosive or radioactive substances, and (vi) Buyer and/or its customer certify compliance with the requirements of clauses (iv) and (v) above. Among other conditions for the return of Products for credit, Seller may require that (i) the returned Products be products that Seller currently offers for sale as a standard Product, be in new, unused and undamaged condition, be returned in the original packaging, and be returned in a complete condition with all accessories, manuals and other documentation, and (ii) Buyer pay a restocking charge. Custom and non-standard Products may not be returned for credit.
16. Employees, Agents, Etc.
No employee, agent, distributor or representative of Seller or any other IDEX Health & Science Unit has the right or power to modify or expand any of the warranties, liabilities, obligations, rights or remedies set forth in Paragraphs 10 (Limited Warranty – Products) and 11 (Limited Warranty – Services) above or to make or enter into any other warranty, representation, agreement or commitment in the name or on behalf of Seller and/or another IDEX Health & Science Unit with respect to any Products or Services, beyond or in addition to the express warranties, representations, agreements and commitments set forth in the Agreement. Any such modification, expansion, warranty, representation, agreement or warranty, if made, should not be relied upon by Buyer or its customers and shall not be binding upon or enforceable against Seller or any other IDEX Health & Science Unit.
17. Relationship of the Parties
Buyer and Seller shall be independent contractors with respect to all Products and Services, and nothing contained in the Agreement is intended to or shall be deemed to create any partnership, joint venture, principal agent, employer-employee or other similar arrangement or relationship between Buyer and Seller. Neither Buyer nor Seller shall be responsible for any act or omission of the other party, and neither Buyer nor Seller shall have any power or authority to speak for, represent or obligate the other party in any way.
No failure to exercise and no delay in exercising any right, remedy, or power under or in respect of the Agreement shall operate as a waiver thereof, and no single or partial exercise of any right, remedy or power under or in respect of the Agreement shall limit or preclude any other or further exercise thereof or the exercise of any other right, remedy, or power under or in respect of the Agreement.
19. Applicable Law
|Applicable Law shall be:||Whenever the following Unit is Seller:|
|The laws of the United States and the State of Delaware||IDEX Health & Science LLCCVI Laser, LLC dba Melles GriotSemrock, Inc.|
|The laws of Japan||ERC KK|
If and to the extent Products and related technical information, data, documents and materials are subject to United States, European, Japanese and/or other export controls and/or trade embargoes, Buyer shall strictly comply with all such export controls and trade embargoes, shall fully cooperate with Seller and any other IDEX Company in any official or unofficial investigation, audit or inspection that relates to any of such export controls or trade embargoes, and shall not export, re-export, divert or transfer, directly or indirectly, any Products or related technical information, data, documents or materials to any party on any applicable denied party list or destination subject to an embargo or for any use that is otherwise prohibited pursuant to such export controls and/or trade embargoes, unless and until Buyer obtains any and all required United States, European, Japanese and/or other governmental and regulatory approvals, authorizations, licenses and permits. If requested by Buyer, Seller shall provide Buyer with the following information relating to Products: (i) the appropriate ECCN numbers appearing in the Export Administration Regulations administered by the U.S. Department of Commerce, and (ii) the appropriate commodity numbers appearing in the current edition of the Bureau of the Census publication, Schedule B, Statistical Classification of Domestic and Foreign Commodities Exported from the United States (Schedule B numbers). These items are controlled by the U.S. Government and authorized for export only to the country of ultimate destination for use by the ultimate consignee or end-user(s) herein identified. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end-user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the U.S. government or as otherwise authorized by U.S. law and regulations.
21. Indemnity by Buyer
Buyer shall defend, indemnify, and hold Seller and the other IDEX Health & Science Units harmless from and against any and all liability, judgment, loss, damages, costs, and expenses (including but not limited to attorneys’ and experts’ fees) which any of them may hereafter suffer or pay out to a third party by reason of any claim, action, or right of action of a third party, at law or in equity, to the extent that any such claim, action, or right of action arises out of or relates to (i) Buyer’s breach of Paragraph 13 (Intellectual Property Rights), 14 (Trademarks) or 20 (Export) above, (ii) Other Products, (iii) High Risk Applications, or (iv) compliance with any design, specification or requirement of Buyer.
22. Patent Infringement
Buyer and each of its customers shall permit Seller and the other IDEX Health & Science Units to take any or all of the following actions, at their option, in connection with any Product that is claimed to infringe or misappropriate any patent, copyright, trade secret or other proprietary right:
23. Interim Relief
Seller shall have the right to seek and obtain from any court of competent jurisdiction a temporary restraining order and/or preliminary injunction to enjoin Buyer from violating or breaching Paragraph 7 (Software), 13 (Intellectual Property Rights), 14 (Trademarks) or 20 (Export) above.
24. Force Majeure
Seller shall have no liability for any failure to perform, or for any delay in performance, to the extent caused by circumstances beyond its reasonable control, including but not limited to, the elements, acts of God, acts of nature, acts of Buyer or third parties, floods, fire, energy shortages or interruptions, communication delays and interruptions, earthquakes, explosions, war or military mobilization, armed hostilities, riots, terrorism, governmental action or inaction, request of governmental authority, shortages of, delays in obtaining, or inability to obtain materials, components or parts, transportation shortages, delays and interruptions, interruption in electricity or other utilities, epidemic or widespread illness or disease, and strikes, lockouts, labor disturbances or other differences with workers.
If any provision of the Agreement is held to be illegal, invalid, void or in any way unenforceable, such provision will be limited or eliminated to the extent, and only to the extent necessary, for the Agreement to otherwise remain in full force and effect, legal, valid and enforceable.
Neither the Agreement nor any right, liability or obligation under or in respect of the Agreement may be assigned by Buyer or Seller, whether voluntarily, by operation of law or otherwise, without the other party’s written consent, and any such assignment that is attempted without such consent shall be null and void; provided, however, that no such consent shall be required for (i) any assignment by Buyer or Seller to a successor to all or substantially all of the business and assets of such party or (ii) any assignment by Seller to another IDEX Health & Science Unit.
27. Parties Bound
The Agreement shall be binding upon and enforceable against, and insure to the benefit of and be enforceable by, Buyer and Seller and, subject to Paragraph 26 (Assignment) above, their respective successors and assigns.
The liabilities and obligations of each IDEX Health & Science Unit are several and not joint, and no IDEX Health & Science Unit shall have any liability or obligation with respect to any act, omission, breach, default or non-performance of any other IDEX Health & Science Unit. Only the specific IDEX Health & Science Unit that is Seller shall have any liability or obligation in connection with any Agreement or any Products supplied or Services provided by or through such IDEX Health & Science Unit.
IDEX Health & Science