STANDARD TERMS AND CONDITIONS OF SALE
1.0 Definitions and Agreement: These Standard Terms and Conditions of Sale (“Terms”) shall apply to each offer and each sale of products and services (“Products”) by Kurt J. Lesker Company or any of its Affiliate(s) (as defined below) (“Supplier”) to buyer (“Buyer”). Upon Buyer’s issuance of a purchase order (“Order”) to Supplier for the Products and Supplier’s written acceptance thereof, an agreement is formed between the parties based upon these Terms (“Agreement”). This Agreement is the entire agreement and understanding between Supplier and Buyer with respect to the offer and sale of the Products. Changes to this Agreement, including changes in or to the Products, must have Supplier’s prior written approval in order to become effective and part of the Agreement. For the avoidance of doubt, unless Supplier otherwise expressly agrees in writing, (a) the Terms contained in this Agreement will prevail over any conflicting terms appearing in Buyer’s Order or any other document issued by Buyer and (b) all such conflicting terms are hereby expressly rejected.
“Affiliate(s)” is defined as any other legal entity that directly or indirectly controls, is controlled by, or is under common control with Supplier, for as long as such control exists. “Control”, “controlled by” and “under common control” refers (i) to the ownership, directly or indirectly, of more than fifty percent (50%) of the outstanding voting securities or the capital stock of, or other comparable equity or ownership interest in the respective legal entity, or (ii) in the absence of such ownership interest, to the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the respective legal entity, by contract or otherwise.
2.0 Price Exclusions: Supplier’s price for the Products does not include (a) any taxes, duties and similar levies, assessments and charges, (b) shipping or handling or (c) installation or training. Unless otherwise specified in the Agreement, all of these items are in addition to Supplier’s price for the Products and are solely Buyer’s responsibility.
3.0 Payment: Unless otherwise agreed by Supplier in writing, Buyer will pay for the Products cash in advance or, upon Supplier’s approval of Buyer’s credit, within 30 days after the date Supplier transmits its invoice to Buyer. Supplier can charge and collect from Buyer a late fee equal to one and one half percent (1.5%) of any past-due amount for each month in which that amount remains unpaid, except to the extent such charge and collection is prohibited by applicable law.
4.0 Export & Import of Products: Buyer will not acquire, export, re-export, import or transfer the Products (including any technology associated therewith) in violation of any applicable laws or regulations of any country, including without limitation the United States’ Export Administration Regulations. Buyer is responsible for obtaining all necessary import clearances and licenses. Buyer will provide Supplier with appropriate end use documentation at Supplier’s request. An export license may be required for the export of the Products. Subject to Supplier’s termination rights described in sub-Section 4.0(b) below, it is in Supplier’s sole discretion as to whether it will apply for the export license. If Supplier applies for the export license, its performance of this Agreement may be delayed awaiting the outcome of such application. This Agreement may be terminated by Supplier, in its sole discretion, if (a) Supplier determines that performance hereof may violate the applicable laws or regulations of the country or countries having jurisdiction over the transaction, including without limitation the laws of the United States; (b) an export license is required and Supplier determines it is in its best interests not to apply for such export license; or (c) a governmental or other regulatory body denies export of the Products. Buyer agrees that Supplier will not be liable to Buyer or to any other party for any cost, loss, expense or damage incurred by Buyer or by any other party related to any delay or termination arising pursuant to this Section 4.
5.0 Delivery: Unless otherwise agreed by Supplier in writing, delivery will be based upon Incoterms 2020 (or the then current published edition thereof). The actual Incoterm applicable to the sale will depend on the weight and location of the Product, the location of the Buyer and Supplier, and must be agreed to in writing by Supplier. Delivery dates are approximate and assume timely receipt from Buyer of all required or necessary payments and information. Delivery may be delayed due to conditions beyond Supplier’s control. When delivery is delayed at Buyer’s request, or when delivery delay is caused by Buyer, the Products will be held at Buyer’s risk and expense and storage fees may apply. Supplier’s delay in delivery will not be a default under the Agreement nor shall Supplier incur or be assessed any penalties for delay, liquidated or otherwise.
6.1 This sub-section applies if applicable law provides (as do the laws of the United States) a purchase-money security interest, or similar rights, in favor of the seller of goods: Title and risk of loss or damage passes to Buyer when the Products are put into possession of the freight carrier for delivery to Buyer. Buyer grants to Supplier, and Supplier retains, a security interest in the Products to ensure Buyer fully pays for the Products. Buyer agrees not to take any action that would interfere with Supplier’s security interest until Buyer fully pays for the Products.
6.2 This sub-section applies if applicable law does not provide a purchase-money security interest, or similar rights, in favor of the seller of goods: Risk of loss or damage passes to Buyer when the Products are put into possession of the freight carrier for delivery to Buyer. Supplier retains sufficient title in the Products to ensure Buyer fully pays for the Products. Buyer agrees not to take any action that would interfere with Supplier’s title until Buyer fully pays for the Products.
7.0 Standard Warranty:
7.1 Warranty for non-consumables: Supplier warrants to Buyer that (a) the Products (other than software and services) are manufactured, fabricated and delivered to Buyer by Supplier free from defects in workmanship and materials, and conform to the written specifications issued by Supplier to Buyer for those Products; (b) Products consisting of software conform to the written specifications issued by Supplier to Buyer for that software; and (c) Products consisting of services conform to standards of practice generally accepted in the appropriate profession and/or industry for services of a similar nature. THIS LIMITED EXPRESS WARRANTY IS EXCLUSIVE, AND IS IN LIEU OF ALL OTHER WARRANTIES (EXPRESS, IMPLIED OR STATUTORY), INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE DISCLAIMED. Unless otherwise agreed by Supplier in writing, and subject, as applicable, to Section 11.0 Acceptance below, this warranty (a) for Products, other than services, is in effect for 12 months after delivery and (b) for services is in effect for 12 months after performance. Buyer’s right to enforce this warranty is conditioned upon Buyer notifying Supplier of the defect or non-conformity on or before the 30th day after the end of the applicable 12 month period. Buyer’s remedy, and Supplier’s liability, for defect or non-conformity is limited to (a) Supplier’s repair or replacement of the defective or non-conforming Product (other than services), (b) Supplier’s re-performance of the defective or non-conforming Product consisting of services or (c) Supplier’s refund to Buyer of the amount paid by Buyer to Supplier for that Product. Supplier has the sole right to decide whether to repair, replace, re-perform or refund. Notwithstanding anything contained herein or elsewhere to the contrary, if delivery of the Products is delayed by Buyer and such delay is not caused by Supplier, then warranty shall be deemed to have started sixty (60) days from the date that the Products were made ready for shipment.
7.2 Warranty for consumables: Supplier warrants to Buyer that when delivered, the Products will conform to the written specifications issued by Supplier to Buyer for the Products. Buyer’s right to enforce this warranty is conditioned upon Buyer notifying Supplier in writing of any non-conformity no later than the 30th day after Buyer receives the Products. Supplier has the sole right to decide whether to repair, replace, re-perform or refund. THIS LIMITED EXPRESS WARRANTY IS EXCLUSIVE, AND IS IN LIEU OF ALL OTHER WARRANTIES (EXPRESS, IMPLIED OR STATUTORY), INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE DISCLAIMED.
8.0 Limitation of Liability: SUPPLIER IS NOT LIABLE FOR ANY LOST PROFITS, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (OR OTHER DAMAGES OF THESE TYPES), WHETHER OR NOT ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY BREACH THEREOF AND WHETHER OR NOT FORESEEABLE AT THE TIME OF ENTERING INTO THIS AGREEMENT. IN NO EVENT WILL SUPPLIER’S TOTAL AGGREGATE LIABILITY TO BUYER OR ANY OTHER PARTY WITH RESPECT TO THE AGREEMENT, THE PRODUCTS, AND/OR ANY BREACH EXCEED THE AMOUNT OF MONEY PAID BY BUYER TO SUPPLIER IN CONNECTION WITH THE ORDER UNDER WHICH SUCH LIABILITY ARISES.
9.0 Return of Products: To request authorization to return Products, Buyer will need to (a) obtain Supplier’s return authorization form, (b) complete the form and (c) submit that form to Supplier. If Supplier agrees to the return, Supplier will issue Buyer a return authorization number. All returns will be governed by Supplier’s product return policy then in effect.
10.0 Intellectual Property: Supplier’s engineering and manufacturing know-how, drawings, prints, specifications and instructions (all regardless of the form in which they exist) developed and/or used by Supplier to manufacture the Products, and all software source code (collectively “Background IP”), are and will remain Supplier’s exclusive property. To the extent applicable, Supplier grants to Buyer a limited, non-transferable license in the Background IP but only to the extent necessary to enable Buyer’s use of the Products.
11.0 Acceptance: Off-the-shelf and standard Products are not subject to acceptance testing criteria. Some custom manufactured Products may be subject to acceptance testing criteria. Any such acceptance testing criteria must be agreed to in writing by Supplier and shall be the only test criteria necessary for acceptance. Acceptance tests shall be conducted and met prior to delivering the Products to Buyer. Final acceptance testing and sign-off must take place within sixty (60) days from delivery of the Product to Buyer’s site or within a timeframe otherwise mutually agreed to by Supplier and Buyer in writing.
Subject to the below exception, and notwithstanding anything contained herein or elsewhere to the contrary, warranty on a Product that is subject to mutually agreed to written acceptance testing criteria will start upon sign-off of the Product. Notwithstanding, if sign-off of the Product is delayed by more than sixty (60) days from the last date upon which it was to take place and such delay is not caused by Supplier, then warranty shall be deemed to have started sixty (60) days from the date of delivery of the Product.
12.0 Site Safety: Supplier personnel may be required to carry out activities at Buyer’s site, including for reasons related to the installation, training, service, repair, or maintenance of the Products. In such cases, it is Buyer’s responsibility for ensuring the safety and security of its site. If personal protective equipment (PPE) is required, unless Supplier agrees in writing to provide its own, Buyer shall provide the PPE and such PPE shall be in full working condition. Supplier’s personnel shall abide by all site safety and security rules made known to it by Buyer. To the extent that Supplier’s personnel believe, acting reasonably, that the work site, working conditions, or Buyer-supplied PPE is unsafe, he/she may stop work immediately and depart from Buyer’s site and will not return to Buyer’s site unless/until the unsafe condition(s) has been corrected to Supplier’s reasonable satisfaction. Supplier shall not be liable for any delays, additional costs, or failure to perform under the Agreement as a result of unsafe site conditions.
13.0 Indemnity: Buyer shall indemnify, defend, and hold Supplier harmless from any claims, damages, liabilities, or expenses (including reasonable attorney’s fees and expenses) brought against or incurred by Supplier to the extent arising from or relating to (i) personal injury, death, or property damage caused by design defects in Products that were manufactured by Supplier to Buyer’s design; (ii) Buyer’s or any other party’s misuse of the Products; or (iii) Buyer’s alleged or adjudicated infringement of a third party’s intellectual property rights.
14.0 Change Control, Material Traceability, and Regulatory Certification Requirements: Buyer and Supplier agree that change control, material traceability, or any regulatory certifications shall only apply to the Products if such requirements are explicitly agreed to in writing by Supplier and contained in the mutually agreed to written specifications for the Products.
15.0 Changes: Any changes to the Products or delivery schedule requested by Buyer will only become effective upon written acceptance thereof from Supplier and Supplier shall be entitled to an equitable adjustment in relation thereto.
16.0 Confidentiality: Buyer shall not make available to third parties technical or business information disclosed to it by Supplier and declared to be confidential.
17.0 Cancellation: All orders are “no cancel/no return”, unless otherwise agreed to in writing by Supplier. If Supplier agrees in writing to the cancellation of an order, Supplier shall be entitled to payment for work in progress and raw materials then on order, plus a reasonable amount of profit, not to exceed 25%.
18.0 Governing Law; Forum: The Agreement, and Supplier and Buyer’s respective rights, obligations, liabilities and responsibilities, will be governed by and interpreted in accordance with the substantive laws of (a) Pennsylvania, United States of America, if Kurt J. Lesker Company is the seller, (b) England and Wales, if Kurt J. Lesker Company Limited is the seller, (c) Ontario, Canada, if Kurt J. Lesker Canada Inc. is the seller and (d) People’s Republic of China, if Kurt Lesker (Shanghai) Trading Company is the seller. All claims, disputes, controversies and other matters in question arising out of or related to the Agreement or a breach of the Agreement shall likewise be determined by recourse only to the courts of that country and political subdivision whose substantive laws apply in accordance with this Section. Buyer and Supplier acknowledge and consent to the jurisdiction of said courts to decide said issues. The United Nations Convention on Contracts for the International Sale of Goods will not apply to or govern the Agreement or the sale of the Products.
19.0 Privacy: Buyer and Supplier may be subject to the European Union’s General Data Protection Regulation (EU) 2016/679 (the “GDPR”). Buyer and Supplier shall comply with all applicable provisions of the GDPR. In performing this Agreement, it may be necessary for, and Supplier has a “legitimate interest” in, “processing” Buyer’s “personal data”, as those terms are defined in the GDPR. Supplier’s Privacy Notice is available on its website, www.lesker.com.
20.0 Survival: The provisions of the Agreement shall, where the context so requires, continue in full force and effect notwithstanding any termination or suspension of the Agreement or the issuance of any payment.
21.0 Headings: The subject headings and/or titles to Sections in this Agreement are to facilitate reference only and do not form a part of this Agreement and shall not in any way affect the interpretation of this Agreement.