Terms of Purchase
Freight will be added to the invoice F.O.B. Factory, unless otherwise specified. All prices and specifications are subject to change without notice. SPEX Forensics-HORIBA JOBIN YVON, INC. ("SPEX Forensics") is not responsible for any errors or omissions contained within its catalog(s). Any such purchase order will be subject to these Terms and Conditions and to any other provisions of any documents to which these Terms and Conditions are attached or in which these Terms and Conditions are incorporated, which Terms and Conditions and provisions shall take precedence over all other terms and conditions; (b) Seller will have no obligation with respect to any orders made by a purchaser unless and until such order has been acknowledged by seller in writing, and (c) all quotations of seller and seller's acknowledgement of any order, and all sales of seller, are and will be, subject to and conditioned on the acceptance by the purchaser of these Terms and Conditions without addition or modification. Seller hereby rejects any additional, contrary or different terms and conditions proposed by a purchaser (whether in a purchase order or otherwise) and in no event shall any such additional, contrary or different terms and conditions be binding on seller unless expressly accepted and agreed to by seller in writing even if seller ships products following its receipt of the purchaser's order therefore. Acceptance by the purchaser of any products or services of seller or payment therefore, shall constitute acceptance by the purchaser of these Terms and Conditions and any other provisions of any documents to which these Terms and Conditions are attached or in which these Terms and Conditions are incorporated in their entirety and without addition or modification.
Seller accepts Visa, Mastercard and American Express. Seller also allows purchase by Purchase Order by Law Enforcement Agencies and Educational Institutions, subject to prior approval.
Terms of Payment by Law Enforcement Agencies
Except as otherwise provided herein, use of a purchase order is subject to credit approval. Payment by all federal, state, county and municipal agencies and to campus police of the purchase price for Seller's products, and all other amounts payable to Seller hereunder, shall be made in full within 30 days from the date of the invoice. A monthly service charge of 1% will be added to balances extending beyond 30 days. Returned checks may be subject to a $25.00 service charge as determined by seller in its discretion. Verifiable end user information must be provided by the purchaser prior to shipment (see export license section). Seller shall have no liability or obligation under any Warranty while the purchaser is delinquent in making any payment due to seller.
Terms of Payment by Non Law Enforcement Agencies
Orders placed by individuals, private security, organizations, etc. must be paid for in advance by Visa, Mastercard, money order or certified or bank cashier's check, unless prior credit arrangements have been made with Seller.
Export orders require 100% pre-payment or an irrevocable letter of credit for the benefit of Seller from a bank or other financial institution reasonably acceptable to Seller. All banking charges, including those of negotiating and paying banks, documentation, legalization, bid bonds, performance bonds, and/or authentication charges are to be paid by the purchaser.
Some products require an export license in order to be shipped from the United States to some destinations around the world. No products of Seller will be exported outside the United States unless Seller is satisfied that such export is in compliance with the requirements of the United States Department of Commerce and/or the United States Department of State. Seller will process category requests and export license applications upon the receipt from the purchaser of a complete file of information including, but not limited to: The list of products, the country of destination, verifiable end-user information (including address, agency and phone and fax numbers), the intended use and application of the products and any other information that Seller and/or the United States Department of Commerce and/or the United States Department of State may require or deem necessary. Seller shall not be responsible for shipment delays as a result of the export license process, but late payment service charges shall not be applicable for the period during which any order and/or product is delayed by such process.
The purchaser shall be liable for payment in full of the purchase price of all products ordered, as well as for all taxes and other charges payable hereunder, and risk of loss of the products shall pass to the purchaser, as soon as the products have been delivered by Seller to the carrier. However, title to such products shall remain with Seller, and shall not pass to the purchaser, until all amounts payable with respect thereto have been paid in full.
Any tax imposed by any federal, state or other governmental authority on the sale of Seller's products, and export and other tariffs, duties and customs, shall be paid by Purchaser in addition to the purchase price. Notwithstanding anything to the contrary herein, if no sales tax is charged by Seller and the item is subject to sales tax in Purchaser's state, it is Purchaser's responsibility to, and Purchaser shall, pay such tax or reimburse Seller for any such tax paid by Seller upon receipt of Seller's invoice therefore.
Packing and Handling
A packing and handling charge of 1.5% of the invoice price of the products purchased may be payable by the purchaser.
Returns and Refunds
Returned unused products will be subject to a restocking fee of up to 25% of the purchase price for such products to be paid by the purchaser upon receipt of Seller's invoice therefor, provided that Seller may in its discretion offset any such restocking fee against any refund payable to the purchaser. Special ordered or custom products, and products that have been used, are not returnable, and no refunds shall be given therefor, under any circumstances. Refunds will be of the actual purchase price paid for the products only, not shipping or other charges.
Unless otherwise specified by Seller, and except as otherwise provided in Section 5 hereof (a) in-stock products ordered will be shipped within 24 - 48 hours after Seller's receipt of the purchaser's order (or Seller's receipt of payment therefor, if applicable), and (b) custom products will be shipped 2-4 weeks after Seller's receipt of the purchaser's order (or Seller's receipt of payment therefor, if applicable). In the case of any backorder, Seller will ship products in stock and the back-ordered products as they become available. Please notify us if your order must ship complete. Seller will use commercially reasonable efforts to effect shipment on or before the date indicated. Seller shall not be liable for delay in performance or inability to perform occasioned by any unforeseen conditions or circumstances beyond Seller's reasonably control, including, but not limited to, strike, embargo, government regulation, war, terrorist act, inability to obtain materials or services, failure of power or other utility or severe weather conditions. If performance by Seller is delayed by reason of any such unforeseen conditions or circumstance beyond its reasonable control, Seller shall notify the purchaser, and the time for performance by Seller shall be extended for the period of such delay. Delays in delivery shall not be grounds for cancellation of order or reduction of purchase price.
Quotation and Price
Unless otherwise specified, each quotation is firm for thirty (30) days.
Seller warrants that for a period of one (1) year from the date of delivery of the products, or as described below, that all components manufactured and delivered by Seller will be free of manufacturing defect in material and workmanship. Notwithstanding the above, a warranty period of only ninety (90) days shall apply to data processing equipment included as part of a system, such as computer, disk drives, printers, and the like. Seller makes no warranty with respect to components which, by their nature, are normally required to be replaced periodically consistent with normal use or maintenance, or as listed elsewhere in the applicable quotation. The above warranties do not cover components manufactured by others and which are separately warranted by the manufacturer. Seller shall cooperate with Purchaser in obtaining the benefits of the warranties by manufacturers of such items but assumes no obligation with respect thereto. This warranty shall not apply to any Seller-manufactured components that have been repaired or altered by anyone not authorized by Seller in writing. The warranty shall not apply to any components subjected to misuse due to negligence, adverse environmental conditions (refer to the specifications found in the pre-installation guide, user manual, and/or literature), or accident, nor to any components which are not operated in accordance with the printed instructions in the operation manual or good engineering and/or optical and/or electrical practice. Time, materials, and expenses shall be billed to Purchaser at the rates then in effect for non-contract purchasers on any repairs or replacements not covered by the above warranties Seller's entire liability, and Purchaser's exclusive remedy, with respect to any breach by Seller of the foregoing warranties is limited to, at Seller's discretion, (a) the return and refund of the purchase price paid, or (b) repair or replacement at Seller's factory of the products purchased, or any component thereof, which Seller has determined to be defective after inspection at Seller's factory. All defective items replaced pursuant to the above warranty become the property of Seller. Costs of shipping both defective items and replacements, therefore, shall be the responsibility of, and paid by, Purchaser.
THE ABOVE WARRANTIES ARE GIVEN EXPRESSLY IN LIEU OF ALL WARRANTIES INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE REMEDIES SET FORTH HEREIN ARE EXCLUSIVE. SELLER'S PERFORMANCE THEREOF SHALL CONSTITUTE FULFILLMENT OF ALL LIABILITIES OF SELLER WHETHER BASED ON CONTRACT, NEGLIGENCE OR OTHERWISE WITH RESPECT TO OR ARISING OUT OF SELLER'S PRODUCTS. SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES.
The limitation on damages set forth above shall apply to all aspects of these Conditions of Sale and to any other documents to which these are attached or in which these Conditions of Sale are incorporated, including, without limitation, to Seller's obligations hereunder and thereunder. Seller shall have no liability or obligation under any warranty if Purchaser is delinquent in making any payment due to Seller.
If any SPEX Forensics products are classified as hazardous goods, such products will be subject to such additional charges as may be necessary to comply with then current Department of Transportation Regulations.
Remedies of Purchaser
Purchaser may cancel an order if Seller has materially breached this Agreement and any money paid to date will be reimbursed (subject to the limitations set forth herein). The foregoing shall be the exclusive remedy of Purchaser for any breach of Seller, other than Seller cancellation.
Remedies of Seller
If Purchaser fails to pay the purchase price for products ordered or any other amount payable with respect thereto as it becomes due or wrongfully rejects the products or any part thereof, then Seller shall have the right to recover, in addition to the purchase price of the said products and services and all other amounts payable in connection therewith, all costs incurred by Seller in recovering moneys due. In addition to the foregoing and all other remedies that Seller may have hereunder or by law, Seller without notice (a) may bill and declare due and payable all amounts payable with respect to products under this or any other agreement or contract between Seller and Purchaser and/or (b) may suspend shipment hereunder and under any other agreement or contract between Seller and Purchaser until such default, breach or rejection is cured and/or (c) may cancel any undelivered portion of this and/or any other agreement or contract between Seller and Purchaser in whole or in part (provided that Purchaser shall remain liable for all products delivered and for damages) and/or (d) may offset any liabilities owed to Purchaser as part of this or any other agreement or contract between Seller and Purchaser.
12. Ability of Seller to Perform: Seller has the option to reject or cancel an order with no penalty if for any reason it becomes impractical or impossible to manufacture the ordered products.
Patents and Copyrights
If any item in Seller's products sold hereunder when used for their normal purposes are charged with an infringement of a United States patent issued on or before the date of this Agreement and if Purchaser has given prompt written notice of this charge, Seller at its option (a) shall obtain for Purchaser the right to use such item, free of charge, or (b) shall substitute for such item another equally suitable item, or (c) at Seller's expense shall institute or defend any suit or legal proceeding which may arise as a result of such charge and in any such suit or legal proceeding shall satisfy any final award for such infringement. Seller's obligations hereunder are subject to the conditions that the charged infringement not arise from the combination of the items furnished with other equipment or devices not furnished by Seller, or from modification or alteration of the equipment, or from the use of the equipment in the performance of any patented process. These provisions set forth Seller's entire responsibility for any claim or charge of patent infringement against Purchaser.
Copying of Replicating Products
The products sold are for Purchaser's individual use and may not be copied or replicated. Purchaser shall be liable for all damages, including loss of anticipatory profits, incurred by Seller as a result of such conduct.
Purchaser shall use safe operating procedures in the use of all products supplied by Seller, including Material Safety Data Sheets supplied with any chemicals that may be supplied, and the use of all safety devices and guards when operating equipment, and Purchaser shall maintain the same in proper working order. If Purchaser fails to observe the obligations contained in this paragraph, Purchaser agrees to indemnify and hold Seller harmless from any liability or obligation incurred by Seller arising out of Purchaser's use or misuse of any such products, including, without limitation, to persons injured directly or indirectly in connection with the use or operation by Purchaser of the products. The foregoing indemnification shall in no event be deemed to have expanded Seller's liability for the products. Seller's products are not for any cosmetic, drug, food, or household application. A condition of Seller's acceptance of a purchase order is that only qualified individuals, trained and familiar with procedures suitable for the products ordered, will handle them.
This Agreement and the rights and obligations of the parties hereunder shall in all respects be governed by the laws of the State of New Jersey. Each of Purchaser and Seller hereby irrevocably submits to the non-exclusive jurisdiction of any New Jersey State court or any Federal court located in the State of New Jersey as to any suit, action or proceeding arising out of or relating to this Agreement, and each also hereby agrees and consents that, in addition to any methods of service of process provided for under applicable law, all service of process in any suit, action or proceeding in any New Jersey State court or any Federal court located in the State of New Jersey may be made by certified or registered mail, return receipt requested, directed to Purchaser or to Seller, as the case may be, to the respective address indicated in this Agreement, and service so made shall be complete five (5) days after the same shall have been so mailed.
This Agreement contains the final and entire agreement between Seller and Purchaser and no understanding representations, agreements, modifications, alterations or additions shall be effective unless in writing signed by Seller and Purchaser.