For purposes of these terms and conditions of sale, the term “contract” shall mean the agreement between “PURCHASER” and “CAMAG” arising as a result of your submission of an order for CAMAG Products described on the face of our quote and your order. Any such contract shall be deemed to incorporate and be governed by these terms and conditions. These terms and conditions shall take precedence over any terms and conditions which appear in your order or in any documents incorporated by reference in your order. No term or condition in addition to or different from the terms and conditions contained herein shall become part of any such contract unless explicitly referenced and agreed to in writing by our authorized officer at our principal office in Muttenz, Switzerland. Our failure to object to any provision contained in any communication from you shall neither be construed as a waiver of these terms and conditions nor as an acceptance of any such provision.
IF THESE TERMS AND CONDITIONS ARE NOT ACCEPTABLE AS PART OF A BINDING SALES CONTRACT BETWEEN YOU AND US, YOU MUST SO NOTIFY US AT ONCE IN WRITING. Retention by you of any products, or payment by you of any invoice under the contract, shall be conclusively deemed acceptance of these terms and conditions.
Prices quoted in price lists and offers are without engagement unless a period of validity is expressively stated. CAMAG reserves the right to cancel offers for products for which the supplier changes his terms in the time between CAMAG`s issuing a quotation and receiving the order.
All orders received without CAMAG’s previous valid quotation become legally binding only upon CAMAG’s written acknowledgment by our authorized officers at our principal office in Muttenz, Switzerland, or at shipping the goods, respectively. The PURCHASER accepts CAMAG’s terms and conditions of sale by passing the order. Amendments from the terms and conditions are only valid with CAMAG’s written confirmation. Cancellation of orders may be accepted by CAMAG before the date of shipment to PURCHASER. Orders cannot be cancelled after shipment.
3. PRICES AND TERMS OF PAYMENT
Unless otherwise stated in the applicable quotation, terms of payment shall be net thirty (30) days from date of invoice. If PURCHASER fails to pay the price or any other payment promptly or when due, CAMAG may recover, in addition to the price or payment, interest thereon at a rate of 5% per year. Terms of payment hereunder may be changed by CAMAG at any time. All payments by the PURCHASER shall be made as stated on the invoice and shall be paid fully net, without set-off, deduction or counterclaim.
4. DELIVERY AND PACKAGING
Dates of all shipments are estimated and not guaranteed. Products will be shipped postage prepaid to you at your cost and may be so tendered in several lots. In the absence of specific instructions, we will select the carrier and ship freight prepaid, the cost of which will be added to our invoice.
Any insurance for shipments the PURCHASER wishes to obtain under CAMAG’s standard all risk policy will be at the PURCHASER’s sole expense and added to the invoice. CAMAG will not be deemed to assume any liability in connection with any shipment because of the selection of a carrier. Risk of loss or damage to each of the products will pass to the PURCHASER when delivery is made to the possession of the carrier.
CAMAG shall not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond our control, including, by way of illustration but not limitation, war (whether an actual declaration thereof is made or not), sabotage, insurrection, riot or other act of civil disobedience, act of a public enemy, failure or delay in transportation, act of any government or any agency or subdivision thereof, judicial action, labor dispute, accident, fire, explosion, flood, storm, shortage of labor, fuel, raw material or machinery or technical failure. If any such contingency occurs, we may allocate production and deliveries among our customers.
We reserve, and by receipt of each product delivered to you, you hereby grant to us, a purchase money security interest in each of the products as security for the due and punctual performance of all of your obligations under the contract. This interest will be satisfied by payment in full unless otherwise provided for in any other payment agreement.
CAMAG may modify the specifications of any of the products furnished under the contract, provided the modifications do not adversely affect the performance of the products. In addition, CAMAG may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by government authority or non-availability of materials from suppliers.
7. RESTRICTION OF USE
Purchaser is responsible for using the products in compliance with all applicable laws and regulations, including, without limitation, applicable human health and animal welfare laws and regulations. The products have not been approved for human diagnostic use by the United States Food and Drug Administration or any other regulatory or governmental body in the United States or abroad and should NOT be used for any purpose for which such approval is required. Such use will void all warranties. To the extent allowable under applicable laws, you agree to indemnify, defend and hold harmless us and our officers, employees, directors, representatives, suppliers and agents from and against all damages, losses, expenses (including without limitation legal expenses), claims, demands, suits or other actions in any way arising from your use or disposal of the products in violation of any law, regulation or provision of the agreement.
We warrant to you that title to all products sold to you is good and the transfer rightful, subject to the paragraph entitled “CONTINGENCIES.” We warrant to you that each product manufactured by or for us will be free from defects in material and workmanship in normal use and service for two (2) years from the date of delivery to you as the original purchaser, if used according to the user manual delivered with CAMAG Products. This warranty does not cover, and no warranty is provided for, parts which by their nature are normally required to be replaced periodically consistent with normal maintenance and use, including, without limitation, syringes, air filters, and consumable products. If any product covered by this warranty is returned to the original shipping point, transportation charges prepaid, within the applicable warranty period set forth above and upon examination we determine to our satisfaction that such product was defective in material or workmanship at the time of delivery to you, we will, at our option, repair or replace the product or the defective part thereof or refund the original purchase price of the product.
The foregoing notwithstanding, we will not be responsible for damage to any product resulting from misuse, negligence or accident or resulting from repairs, alterations or installation made by any person or firm not duly authorized by us in writing. We shall not be liable for failure to comply with statutes relating to safety and health.
If you fail to pay when due any portion of the purchase price of any product or any other payment required from you to us, whether under the contract or otherwise, all warranties and remedies granted hereunder and all of our warranties and obligations to service, repair, replace, correct or otherwise remedy defects, errors or failures under any other contract between you and us may, at our option, be terminated.
THE WARRANTIES IN THIS PARAGRAPH ARE THE ONLY WARRANTIES GIVEN BY US WITH RESPECT TO THE PRODUCTS PROVIDED WITH THE PRODUCTS AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF NONINFRINGEMENT, TITLE, MERCHANTABILITY, COURSE OF DEALING, USAGE OF TRADE, AND FITNESS FOR A PARTICULAR PURPOSE. YOUR EXCLUSIVE REMEDIES AND OUR SOLE LIABILITY FOR ANY NON-CONFORMITY OR DEFECT IN THE PRODUCTS SHALL BE THOSE EXPRESSED HEREIN.
With respect to products provided to you by us but not manufactured by or for us or, in the case of related documentation thereof provided to you but not developed by or for us, WE MAKE NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, but will make available to you, to the extent permitted by law and relevant contracts, the warranties of the manufacturer of the relevant product or the provider of the software upon your timely written request, and, if required, upon your return of the faulty product to us, postage prepaid.
9. LIMITATION OF LIABILITY
An essential purpose of the limited exclusive remedies provided in the paragraphs entitled “WARRANTY” and “PATENTS” is allocation of risks between you and us, which allocation of risks is reflected in the purchase price for the products. UNDER NO CIRCUMSTANCES SHALL OUR LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT, OUR PERFORMANCE OR FAILURE TO PERFORM HEREUNDER, OR THE PERFORMANCE OR FAILURE TO PERFORM OF ANY PRODUCT, IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE PURCHASE PRICE OF THE PRODUCT, EXCEPT AS SPECIFICALLY PROVIDED IN THE PARAGRAPH ENTITLED “PATENTS”. IN NO EVENT SHALL WE BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, TORT OR ANALOGOUS DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM LOSS OF USE, LOSS OF PROFITS, LOSS OF BUSINESS OR LOSS OF GOODWILL, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
In no event shall we be liable for any damages caused by your failure to perform your responsibilities, for any damage to any person or property or for any claim against you by any other party.
Goods shall be checked by the purchaser immediately after delivery. Notice of any deficiencies shall be given within one week after receiving of the goods, or, if a defect becomes apparent only later, within one week after its detection. All claims for damage or partial loss during transport must be submitted immediately to the carrier used for the last leg of shipping.
11. RETURN OF PRODUCTS
All sales are final. Subject to the paragraph entitled “WARRANTY”, no product will be accepted for return and no credit will be allowed on any product returned unless we have granted prior written permission. We will require a restocking charge of 20% of the invoice price with respect to any restocking requested by you.
All goods supplied by us remain our property until they are paid for in full.
13. PROPRIETARY RIGHTS
You acknowledge that all intellectual property rights in or to the products are owned by us. You are authorized to use the products only pursuant to this contract and agree that you shall not infringe the intellectual property rights in or to the products or acquire or obtain any right, title or interest therein.
14. NON-WAIVER OF DEFAULT, REMEDIES
In the event of any default by you under the contract or any other contract between you and us, we may decline to make any or all shipments to you, and you will pay all costs incurred by us in connection with enforcement of any of our rights under such contract, including, without limitation, reasonable attorneys’ fees. If we elect to continue to make shipments, our action will not constitute a waiver of any default by us or in any way affect our legal rights or remedies for any such default. All of our rights and remedies under the contract shall be cumulative, non-exclusive and in addition to all other rights and remedies available, at law, in equity, by contract or otherwise, and may be exercised singularly or concurrently.
CAMAG reserves the right to correct all typographical and clerical errors which may be present in the prices or specifications contained herein.
16. AMENDMENT OF TERMS
CAMAG reserves the right to amend or to supplement these terms for all or part of our products.
17. PARTIAL INVALIDITY OF TERMS
Should for any reason part of these terms become void this will not inflict the validity of the remaining conditions.
If any term or condition of this contract is determined to be or becomes invalid, illegal or otherwise unenforceable, then such provision will instead be construed to give effect to its intent to the maximum extent possible, and the validity, legality and enforceability of the other provisions of this contract shall not be affected thereby. If, after application of the immediately preceding sentence, any term or condition of this contract is determined to be or becomes invalid, illegal or unenforceable, such provision shall be severed, and after any such severance, all other provisions hereof shall remain in full force and effect.
The validity, construction and interpretation of the contract and your and our rights and duties shall be governed by the laws of Switzerland without regard to its principles of conflicts of laws. In addition, the general and further rules of Swiss law, especially of the Swiss code of obligations (Obligationenrecht), shall be applicable for the whole contract. The parties agree that the local court of the district of Arlesheim located in Arlesheim (Switzerland) and the higher instances provided for appeals against the decisions of the court of Arlesheim shall have sole and exclusive jurisdiction over any disputes arising under the terms of this contract.
Except as otherwise expressly provided herein, this contract constitutes the entire agreement between us as seller and you as purchaser relating to the sale of the products and contains the final, complete and exclusive statement of representations made by us. We shall not be bound by any representation, promise or inducement of any kind unless set forth herein and shall not be bound except to you as purchaser by any representation or promise made herein.
No waiver, alteration or modification of, or addition to, any of the provisions of the contract shall be binding upon us unless in writing and signed by our duly authorized representative and by you.
The contract will be binding upon, and inure to the benefit of, you and us and your and our respective legal representatives, successors and permitted assigns. The contract is personal to you, and you may not assign any of your rights or delegate any of your obligations thereunder, in whole or in part, without our prior written consent which may be withheld for any reason.