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1. Conclusion of a Contract, Quality, Order Confirmation
1.1 These terms and conditions form part of every contract ("Contract'') for the sale of equipment, accessories, consumables, or services ("Products") by us to the purchaser of our Products (' Customer").
1.2 Unless otherwise expressly stated, an offer to supply Products does not constitute a binding Contract until we have confirmed the order in writing to Customer. Our written order confirmation (including these terms and conditions) is the: authoritative: document defining the scope of the parties’ respective contractual obligations.
1.3 Customer’s own terms and conditions are not recognized by us except when we have expressly agreed to them in writing. Customer’s own terms and conditions are also not recognized by us even if, in knowledge of them, we unconditionally execute the delivery of Products without expressly contradicting Customer's own terms and conditions.
1.4 Supplemental oral agreement or assurances from our employees or authorized representatives require our written confirmation to be legally binding.
2. Pricing
2.1 Unless otherwise expressly stated, all price quotes are valid for thirty (30) days only. Our prices are exclusive of any value added tax payable in the country of original delivery. Unless otherwise quoted the cost of distribution, freight, handling and/or installation will be added to the price at the rate which is valid at the date of shipment. Should Customer cause delay in delivery beyond ninety (90) days from the expected ship date of our order confirmation, we shall be entitled to charge the list prices for the Product and installation (if applicable) in effect on the actual date of delivery.
2.2 Up until four (4) weeks before the designated delivery date, Customer may request that a confirmed order is cancelled or changed. If we agree to the cancellation or change Customer shall be liable for a fee of 10% of the original value of the order (the "Fee"). The amount of the Fee shall rise to 25% of the original value of the order if the order is for specially configured Products. Any cancellation or order change made less than 4 weeks before the designated delivery date is not permitted.
3. Conditions of Payment
3.1 The price payable for Products is due immediately and payable within thirty (30) days after receipt of invoice. Payments are be made directly to us without deduction.
3.2 In the case of Customer being in default with payment, we are entitled to charge interest on demand at lower of either 1.5% interest per month, or the maximum amount allowed under applicable law. The charging of interest is without prejudice to any other rights or remedies that we may have.
3.3 Set-off or application of any right of retention arising out of counterclaims by Customer which are disputed by us and not res judicata are excluded. The application of any right of retention is also excluded where the counterclaims of Customer do not arise under the Contract.
4. Deterioration of Customer’s Assets, Contract Termination
4.1 We may by written notice terminate the Contract immediately without prejudice to any accrued rights if Customer commits a material bread of any of the terms of the Contract and, where such breach is capable of remedy, fails to remedy the same within fourteen (14) business days after receipt of a written notice from us giving particulars of the breach and requiring it to be remedied. For the purposes of this clause 4.1 failure to pay by a particular date shall be regarded as a material breach
4.2 We may by written notice terminate the Contract immediately without prejudice to any accrued right if any step, application, order, proceeding or appointment is taken or made by or in respect of Customer for a distress, execution, composition or arrangement with creditors, winding up, dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if Customer is unable to pay its debts, or if any event occurs which, under the applicable law of any jurisdiction to which it is subject, has an effect similar to that of any of the events referred to in this clause 4.2
5. Inspection and Acceptance
5.1 Customer shall inspect the Product immediately upon delivery and immediately notify the carrier in writing for any visible damage or missing packages. Copy of the damaged/missing notice, or written notice for any other discovered defect in the delivered Products, must be forwarded to us within five (5) business days. If Customer fails to give such notice, 'the Product shall be deemed accepted and to conform to the terms of the Contract.
5.2 We will not accept the return of Products, defective or otherwise, without a return authorization number issued by us. Products authorized to be returned shall be shipped to our specified location freight pre-paid (DDP Incoterms 2010).
5.3 We will reimburse Customer any transportation charges in the event that the Products returned to us are defective.
6. Delivery, Packaging and Risk of Loss
6.1 All orders will be delivered duty-paid destination (DDP Incoterms 2010) and may include a freight and handling fee to cover the cost of pick up, transportation, insurance, and delivery.
6.2 Delivery of the Products shall take place at road level, front doorsteps at Customer's premises, or any other address specified in the Contract.
6.3 Except where otherwise expressly stated in the Contract, all delivery and shipment dates are approximate and subject to our availability schedule. We will make a reasonable effort to meet the delivery dates quoted. However, we will not be liable for any failure to meet the quoted delivery dates or for any delay in performance under the Contract caused by Excusable Delay (as defined in clause 131.). Customer will be informed of the beginning and ending of these Excusable Delays as soon as practicable.
6.4 Where there is a delay in delivery caused by our negligence, our liability for resulting damages will be limited to a maximum of 5% of the total price of the Products affected by the delay.
7. Taxes
7.1 Customer is responsible for the payment of all taxes which may be based or levied on or on account of the Products sold to Customer, including, without limitation, all value added and sales taxes.
7.2 Where Customer claims that a transaction is not subject to any such tax or that we are not required to collect such tax, Customer must provide us with all documentation necessary to support such a claim and allow us to document any decision we may make not to collect such tax(es). Customer maintains full liability for, and holds us harmless against, any expenses incurred, or action raised as a result of our reliance upon Customer's statements and documents.
8. Installation and Site Preparation
8.1 Installation services are included in the purchase price of the Products only if expressly so stated in the Contract. Except as expressly stated in the Contract, installation service will only be performed in the country of original delivery.
8.2 It is the responsibility of Customer to prepare appropriate environmental conditions at the site and to provide the required service, for the duration of the installation, including whatever is required to uncrate and transport the Product to their appropriate location for use. Failure to do so, will result in a service charge by us to cover the lost time of our service personnel. If any installation services are to be carried out on a Customer' s computer system, the Customer has the full responsibility to perform an adequate data back-up to preserve the integrity of existing data. Should we be unable to perform the required installation services within twelve months of the Products’ shipment date as a result of the Customer's inability to prepare the site as required, the Customer shall be responsible for additional costs associated with any required hardware, software and firmware update. Delay of the installation will not extend the contacted warranty period.
8.3 Customer hereby undertakes to maintain its premises in a safe condition and to comply with all applicable laws governing workplace health and safety. Customer hereby accepts full responsibility for any harm or injury to, or liability arising from work performed by our service personnel while on Customer's premises, except to the extent caused solely by the gross negligence or willful misconduct of our service personnel.
8.4 Installation services will be invoiced on the basis of the time worked and material used unless otherwise agreed with Customer in writing. We will charge the then applicable hourly rate for work, travel and waiting time as well as any additional costs identified in the Contract.
8.5 Customer shall provide us with written acceptance of the installation services. Acceptance shall be deemed to have been given if the Customer has not provided us with such acceptance within two (2) weeks after completion of the installation services and within that time has not reported any defects in the Installation Services.
9. Limited Warranty
9.1 We warrant to Customer that the Products sold are, at the time of shipment to Customer from us, free from defects in material and workmanship. Unless otherwise stated in the Contract or in the applicable price list this warranty shall be valid for a period of twelve (12) months from the date of delivery to Customer.
9.2 If the warranty in clause 9.1 of these terms and conditions is breached, we agree either to repair or replace at our sole option, any part of such Products which, under proper and normal condition of use, prove(s) to be defective. Alternatively, we may at any time, in our sole discretion, elect to discharge our warranty' obligation under the Contract by accepting the return of any defective Product pursuant to these terms and condition and refunding the purchase price paid by Customer. The remedies provided in this clause 9.2 are Customer’s only remedies (to the exclusion of all others) for breach of the warranty in clause
9.1 of these terms and condition.
9.3 Except when otherwise stated in the applicable price list, we will use reasonable efforts to perform all warranty services at Customer's premises, provided, however, that we reserve the right to require that Customer return the Products to our production facility when necessary to provide proper warranty service.
9.4 We warrant newly installed parts for a period of ninety (90) days. Replaced parts will become our property and are to be handed over to us.
9.5 If an inspection of the claimed defects shows that no warranty claim exits, Customer shall be liable for all costs associated with the inspection.
9.6 It is recognized that some Products by their nature may not function for the warranty period in Clause 9.1. Therefore, all consumables’ products and other similar parts, as referenced in the applicable Product's operating manual (i.e.: chromatography columns, lamps, graphite tubes, reagents, films, etc..), arc expressly excluded from the warranty set out in clause 9.1 of these terms and conditions.
9.7 The warranty set out in clause 9.1 excludes any equipment or accessories which are identified on applicable price list, special promotional materials, or on the Contract, as items in respect of which the limited warranty in clause 9.1 may be further limited. Included within this category are items which are sold at specially reduced prices with reduced warranty protection. Third party Products will be limited to the warranty supplied by 'the original manufacturer.
9.8 The warranty in clause 9.1 does not cover loss, damage, or defects resulting from: improper or inadequate maintenance by Customer, Customer-supplied products, unauthorized modification or misuse, operation outside of the environmental specification for the Products or improper site preparation or maintenance.
9.9 No warranty is made with respect to used, reconstructed, refurbished or previously owned Products, which are sold "As is" unless otherwise indicated on the Contract.
9.10 The warranty in clause 9.1 applies only to Products located within the country of original delivery.
9.11 We warrant our software for a period of ninety (90) days. The sole and exclusive warranty applicable to software and firmware products is that they will conform to the program manual(s) current at the time of shipment to Customer when properly installed on the processor, provided, however, that we do not warrant that the operation of the processor or software or firmware will be uninterrupted or error-free.
9.12 All warranties, conditions and other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by law.
10. Limitation of Liability
10.1 The remedies provided in these terms and conditions are Customer's sole and exclusive remedies. We shall not be liable to Customer for any loss of profit, loss of opportunity, costs and fines and/or any indirect or consequential loss, whether based on contract, misrepresentation, tort (including negligence), strict liability or otherwise, arising out of the design, manufacture, sale, delivery, instillation, service or use of the Products. We neither assume, nor authorize any other person to assume for us, any other liability in connection with the design, manufacture, sale, delivery, installation, service or use of the Products.
10.2 Subject to clause 10.3 our maximum aggregate liability to Customer for any loss or damage in respect of any claims, actions or proceedings arising out of the Contract whether in contract, misrepresentation, tort (including negligence), strict liability or otherwise, shall not exceed the total amount of the price paid by Customer to us for the Products.
10.3 Nothing in these terms and conditions shall exclude or restrict either party's liability for death or personal. injury arising from its negligence or that of its employees, agents or subcontractors, or shall exclude or restrict a party’s rights, remedies or liability under the law governing these terms and conditions in respect of any fraud.
10.4 The limitation period for any claims, actions or proceedings arising out of the Contract whether in contract, misrepresentation, tort (including negligence) or otherwise, is two (2) years from the date on which the cause of action accrued.
11. Compliance with environmental Law for the Disposal of Electrical and Electronic Equipment
11.1 We are committed to comply with environmental legislation applicable to our business inducing the Israeli Environmental Law for Electrical and Electronic Equipment and Batteries (“Electronic Equipment Law") upon its entry into force and effect. Customer agrees that any expenses imposed on us pursuant to the Electronic Equipment Law, and applicable regulation enacted thereunder, inducing expenses related to disposal of any equipment at Customer's location and expenses in connection with the supply of Products to Customer, shall be borne by Customer. Customer shall cooperate with us with respect to the foregoing.
12 Export
12.1 Customer acknowledges that the Products and related technology (inducing, but not limited to, technical data and information) are subject to applicable export regulation (including but not limited to those of the United States, the European Union, Israel and or United Kingdom), which may prohibit or restrict certain operations. Customer hereby undertakes not to sell, transfer, transmit, export or to reexport products or related technology in violation of the export control regulation of the United States, European Union, Israel and/or United Kingdom.
12.2 We shall be entitled to refuse performance of our obligations under the Contract where performance would violate clause 12.1.
13 Software License and Copyright Material
13.1 We provide software products by license only. The terms of the license are available from us and are deemed accepted by Customer on delivery of licensed software.
13.2 All rights in the software remain with us or our licensors, in so far as they have not been expressly granted to Customer in these terms and conditions or by other agreements. Customer shall only be granted a limited right to use the software in accordance with the terms of the relevant software license agreement. Customer shall not reverse engineer, decompile or disassemble any software unless otherwise expressly provided in the applicable software license agreement.
13.3 Unless otherwise specified, our copyright works (including, without limitation, software, firmware, and printed documentation) may not be copied except for archive purposes, to replace a defective copy, or for program error verification by Customer.
14 Miscellaneous
14.1 The Contract (including these terms and conditions) shall be governed by, construed, and take effect in accordance with the law of the State of Israel. The courts of the State of Israel. shall have exclusive jurisdiction to settle any claim, dispute or matter of difference which may arise out of or in connection with the Contract (including claims for set-off or counterclaim) or the legal relationships established by the Contract. The UN Convention on Contracts for the International Sale of Goods is excluded (CISG).
14.2 We shall not be liable for any failure due to acts of God, acts or failures to act of Customer, acts of civil military authority, fires, strikes, floods, epidemics, attack, war, delay in transportation or other causes beyond our reasonable control, including, without limitation, delays in obtaining or inability to obtain any license that may be required by law or the necessary labor, materials, components, or manufacturing facilities (together referred to in these terms and conditions as "Excusable Delays").
14.3 Customer may not assign, transfer or delegate any of its rights or obligations under the Contract without our prior written consent, and any purported assignment of such rights or obligations without such consent shall be null and void.
14.4 Where individual provisions of these terms and conditions are invalid, the invalidity shall be limited to such provision, and the invalid provision shall be replaced with one that comes closest in a valid manner, to the economic meaning and purpose of the invalid provision.