Terms & Conditions
Disclaimer of Express Warranties: IT IS THE INTENT OF THE PARTIES TO PROVIDE IN THIS AGREEMENT AN EFFECTIVE DISCLAIMER OF ALL EXPRESS WARRANTIES WITH RESPECT TO THE GOODS SOLD UNDER THIS AGREEMENT. NO STATEMENT OF FACT, PROMISE, REPRESENTATION, AFFIRMATION, OR OTHER INDICATION HAS BEEN MADE WITH RESPECT TO THE QUALITY OF THE GOODS OTHER THAN THOSE WHICH APPEAR IN THIS WRITTEN AGREEMENT. THE DESCRIPTION OF THE GOODS CONTAINED IN THIS AGREEMENT IS THE SOLE BASIS FOR THE AGREEMENT OF THE PARTIES, AND NO STATEMENTS OR REPRESENTATIONS OTHER THAN THOSE EMBODIED HEREIN HAVE BEEN MADE OR RELIEF UPON. IT IS AGREED THAT ANY OPINIONS OR STATEMENTS OF SELLER AS TO THE VALUE OR QUALITY OF THE GOODS SOLD UNDER THIS AGREEMENT DO NOT FORM A BASIS FOR THIS AGREEMENT, AND UNLESS THE STATEMENTS OR OPINIONS ARE SPECIFICALLY EMBODIED IN THIS WRITING, THEY DO NOT, IN ANY WAY, CONSTITUTE A WARRANTY. ANY MODIFICATION OF THIS AGREEMENT THAT RELATES IN ANY WAY TO A WARRANTY MUST BE IN WRITING AND SIGNED BY SELLER; OTHERWISE THE PURPORTED MODIFICATION OF THIS AGREEMENT WILL BE NULL AND VOID.
Disclaimer of Implied Warranties: THE GOODS SOLD UNDER THIS AGREEMENT ARE PURCHASED BY BUYER “AS IS” AND “WITH ALL FAULTS.” SELLER DOES NOT WARRANT THAT THEY ARE OF MERCHANTABLE QUALITY OR THAT THEY CAN BE USED FOR ANY PARTICULAR PURPOSE. IT IS AGREED THAT THE INTENT OF THE PARTIES IS TO DISCLAIM ANY AND ALL IMPLIED WARRANTIES WITH RESPECT TO THE SUBJECT GOODS INCLUDING THE WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR PARTICULAR PURPOSE. BUYER AGREES THAT BUYER WILL ACCEPT THE GOODS WITHOUT ANY WARRANTY OF MERCHANTABILITY. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE GOODS IS WITH THE BUYER. SHOULD THE GOODS PROVE DEFECTIVE FOLLOWING THEIR PURCHASE, THE BUYER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING OR REPAIR. ALL SALES ARE FINAL. IF RETURN IS GRANTED FOR ANY REASON, WE WILL CHARGE A 20% RESTOCKING FEE IN ADDITION TO SHIPPING EXPENSES.
Rejection of Additional Terms of Acceptance; Written Assent to Additional Terms of Acceptance Required: The terms and conditions of this agreement shall govern all transactions, and supersede the terms and conditions of any purchase order issued against it. Acceptance of this agreement is limited to its terms. Additional or differing terms from this agreement stated in a Buyer’s form preceding this agreement, if any, shall be deemed material alterations of this agreement within the meaning of Commercial Code 2207(2)(b), are hereby rejected, and notice of objection to them pursuant to Commercial Code Section 2207(2)(c) is hereby given. Acceptances or confirmations of this agreement that state additional or differing terms from this agreement shall be operative as acceptances; provided, however, that all additional or differing terms shall be deemed material alterations within the meaning of Commercial Code 2207(2)(b), are hereby rejected, and notice of objection to them pursuant to Commercial Code Section 2207(2)(c) is hereby given. Such additional or different terms and conditions proposed by Buyer shall be of no force or effect unless expressly agreed to in writing by Seller. There shall be no agreement except on the terms and conditions provided in this offer.
Limitation of Liability Regarding Delivery: Seller shall not be responsible for delay, nondelivery, or default in shipment in whole or in part if occasioned by any cause, contingency, or circumstance not subject to Seller’s control that prevents or hinders the manufacture or delivery of the merchandise, strike, war, riot, or revolutions, or for any delay in transportation due to demands or embargoes of the United States Government or any other government, or nondelivery or delays through fire, floods, droughts, accidents, insurrections, lockouts, breakdown of machinery, commandeering of vessels carrying goods, or for loss or damage in transit, or detention of or delay in vessels resulting directly or indirectly from acts of God, perils of the sea, stoppage of labor, shortage of carriers, or refusal of any necessary license or government restrictions considered as “force majeure,” or any other unavoidable cause other than Seller’s own negligence at any stage of the transit of goods beyond Seller’s control. In no case shall Seller be responsible after delivery of goods in good order or condition to the carrier or carriers at the point of shipment.
Risk of Loss: Buyer, at Buyer’s own expense, shall independently seek adequate insurance coverage for the goods sold under this agreement. The risk of loss shall pass to Buyer on the signing of this agreement. Buyer shall not look to Seller for any deficiency in insurance coverage, notwithstanding the fact that Buyer may have the right of rejection, or that Seller may be in breach of this agreement. The risk of loss shall not be altered by the fact that the conduct of either party may constitute a default or breach. If the goods covered by this agreement are destroyed before the time the risk of loss passes to Buyer, Seller shall be excused from performing Seller’s obligations under this agreement and the agreement shall be avoided. This provision shall apply whether or not the goods are destroyed through the negligence of Seller.
Additional Limitation of Liability: Most items sold under this agreement are previously owned and used with various chemicals. They might have come in contact with hazardous waste or dangerous chemicals including, without limitation, Penicillin. Even though the items sold under this agreement may be cleaned prior to sale, there might be residual chemicals left on the instruments. Buyer understands that all risks associated with such chemicals or processes are borne by the Buyer and that the Seller is not responsible for any decontamination or cleaning of the equipment. By purchasing the items sold under this agreement from Seller, Buyer acknowledges this fact and assumes full responsibility, and further Buyer will indemnify, defend and hold harmless Seller from any and all claims, obligations or liabilities, including, without limitation, court costs and reasonable attorneys’ fees, arising out of or relating to any issues that might arise from the matters set forth herein. In addition, it is understood and agreed that the Seller herby disclaims any and all liability including but not limited to any errors caused by such items. It is understood that Buyer is buying used equipment and accuracy is not guaranteed and should not be used for human diagnosis. Buyer shall assume all responsibility for obtaining insurance to cover losses of all types. Seller makes no warranties, express or implied, except as specifically stated herein.
[Does this clash with other provisions?] Time Limit for Notice of Rejection and Acceptance of Goods: Buyer shall have forty-eight (48) hours after receipt of the goods to inspect and reject them for material damage only. Any rejection of the goods must be made in writing specifying in detail the objections of Buyer, and must be forwarded within forty-eight (48) hours after Buyer’s receipt of the goods. The parties agree that this forty-eight (48) hour period is a reasonable time for notification of rejection. Failure to reject the goods as set forth herein within the forty-eight (48) period shall constitute an irrevocable acceptance of the goods and an admission that they fully comply with all terms, conditions, and specifications of this agreement. Any attempted notification of rejection thereafter shall be null and void.
Restriction of Revocation of Acceptance: If Buyer fails to reject goods tendered as provided under this agreement, Buyer’s acceptance shall be final and irrevocable. No attempted revocation shall have any effect whatsoever. Any attempt by Buyer to revoke acceptance for any reason whatsoever after Buyer has accepted any shipment shall constitute a breach of this agreement.
Buyer’s Duties Upon Rejection: If Buyer rejects any tender of goods under this agreement as set forth herein above, Buyer shall reship the goods to the Seller, express collect, at Buyer’s own expense within twenty-four hours after rightful rejection. This shall be Buyer’s sole option with respect to any goods that may be rejected under this agreement.
Limitation of Buyer’s Damages and Remedies: If Seller breaches or repudiates this agreement, Buyer’s right to damages shall be limited to a refund of funds from Buyer that have been actually received by Seller. Buyer shall not be entitled to recover any incidental damages as that term is defined in Commercial Code Section 2715 or otherwise. Buyer further shall not be entitled to any consequential damages as defined in the Uniform Commercial Code or otherwise. In no event shall Seller total liability to Buyer for all damages, losses and causes of action (whether in agreement, tort, or otherwise) exceed the amount actually paid by Buyer and received by Seller hereunder.
[Is this really the only use?] Limited Use: Items should only be used for research and development, any other use by Buyer is strictly prohibited and Buyer acknowledges that Buyer shall indemnify Seller from any and all claims, obligations or liabilities, including court costs and reasonable attorneys’ fees, arising out of or relating to any such unauthorized use.
Software License: If the item comes with a computer and/or software, installed and/or on a media; it is solely Buyers’ responsibility to obtain and/or maintain a proper “user agreement” with the software provider or other licensor. Most manufacturers do NOT allow sale of their software, or transfer of licenses and user agreements. Purchase DOES NOT include, unless otherwise explicitly stated, any license or end-user rights from manufacturer; contents are for reference/testing purposes only; Buyer acknowledges this condition of sale. Seller assumes no responsibility whatsoever for the compatibility, issuance of the user agreement and/or license. Due to the delicate nature of the software storage (on any media), Seller offers no guarantee for the software and/or any key media required. No proprietary software or intellectual property rights whatsoever are offered as part of sales; and no such rights shall be transferred or licensed hereby.
Taxes: Buyer understands that it must pay for all applicable taxes, sales or otherwise, incurred as a part of purchasing the equipment. Buyer shall remit such taxes to Seller. Sales tax may only be waived when the Buyer provides a current and active reseller’s certificate of if Buyer provides written documentation demonstrating exemption from such taxes under the laws of the state of California. Failure to collect sales tax from Buyer at the time of Buyer’s purchase of the equipment does not void Buyer’s responsibility to immediately pay such taxes upon written request of Seller. Unless otherwise stated, this quote does not include duties, taxes and import or export fees, and Buyer is solely responsible for these fees. Buyer does not intend to import or export the equipment, but if Buyer’s plans change, Buyer agrees to comply fully with all applicable import and export laws and regulations.
Indemnification: Buyer shall indemnify, defend and hold harmless Seller against any and all claims, obligations or liabilities including court costs and attorneys’ fees, arising out of or relating to Buyer’s tortious or unauthorized acts, misrepresentations, omissions, failure to perform its obligations hereunder, failure to follow any applicable law or regulation, or any acts not expressly authorized in writing, arising out of or related to this agreement.
Termination: This agreement may be terminated by Seller and Seller may, at its option, declare any unpaid balance and other sums payable by Buyer hereunder immediately due to payable for any one or more of the following reasons: (a) if Buyer fails to make payment when due; (b) Buyer breaches any other obligation of this agreement; and (c) Buyer dissolves, ceases to do business, is insolvent and unable to pay bills as they come due or upon the filing of bankruptcy by Buyer or its creditors.
Finality of This Writing: The parties intend this writing to be the final expression of their agreement and it is intended also as a complete and exclusive statement of the terms of their agreement. No course of prior dealings between the parties and no usage of the trade shall be relevant to supplement or explain any term used in this agreement. Acceptance or acquiescence in a course of performance rendered under this agreement shall not be relevant to determine the meaning of this agreement even when the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection.
Modification: No change or modification of this agreement shall be valid unless it is in writing and signed by all parties who are bound by the terms of this agreement.
Severability: If any provision of this agreement is held invalid, unenforceable, or void by a court of competent jurisdiction, this agreement shall be considered divisible as to provision, and the remainder of the agreement shall be valid and binding as though such provision were not included in this agreement.
No Waivers: The waiver by any party of any other party’s breach of any provision of this agreement shall not operate nor be construed as a waiver of any subsequent breach, and the waiver by any party to exercise any right or remedy shall not operate nor be construed as a waiver or bar to the exercise of such right or remedy upon the occurrence of any subsequent breach. No action on the part of either party to this agreement shall be interpreted as waiver unless such action shall be writing.
Arbitration: Any controversy or claim arising out of or relating to this agreement, or the breach thereof, other than an action for payment by Seller, shall be settled by arbitration by a single arbitrator administered by the American Arbitration Association under its Commercial Arbitration Rules, except that all discovery available under the California Code of Civil Procedure shall be allowed to each party to the arbitration. The parties agree to be bound by the award rendered by the arbitrator, and that judgment on the arbitration award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall be held in the County of San Diego, State of California. The prevailing party in the arbitration, as determined by the arbitrator, shall be entitled to recover reasonable attorney’s fees and costs incurred in the arbitration. Any rights of injunctive relief shall be in addition to and not in derogation or limitation of any other legal rights.
Venue and Jurisdiction: Should any legal action be necessary to enforce this agreement, the parties agree that jurisdiction and venue are waived and suit shall be brought in the California Superior Court for the County of San Diego, Central Division. The prevailing party shall be entitled to recover reasonable attorneys’ fees and costs incurred.
Payment Terms: A late fee equal to 5% of any outstanding invoice amount will be applied to all invoices unpaid after due date. If balance reaches 15 days past due, Seller reserves the right to pursue any and all collection efforts and practices including referring the account to a collection agency and/or attorney and reporting to the credit bureau. Buyer is responsible for all additional collection charges associated with the collection of the debt including but not limited to: collection agency fees, reasonable attorneys’ fees, court costs and all other charges allowed by law.
Unpaid and Unclaimed Items: Repaired instruments are subject to disposal if invoice remains unpaid or unclaimed after 30 calendar days. In addition to all other remedies, sales subject to invoices with a remaining balance due are subject to cancellation, without refund, if the invoices are not fully paid within five calendar days.
Governing Law: The construction and performance of this agreement, the rights and obligations of the parties under this agreement, and any dispute arising from or relating to this agreement shall be determined by the internal laws of California.
Construction: Both parties have had full access to legal counsel in negotiating any sale under the agreement, so this agreement shall not be strictly construed against the drafting party or parties.