General Terms and Conditions of Sale

General Terms and Conditions of Sale

GTC/14D20/EN/R1.2/EN
April 2020

Acceptance of Terms.

These Terms and Conditions govern any Quotation, Acknowledgment, Invoice and any agreement, order or sale that may result herefrom and any contract is expressly limited to and made conditional upon these Terms and Conditions becoming part of the Agreement between the Buyer and the Seller. Any of the Buyer’s terms in addition to or different from those contained herein, whether contained in a Request for Quotation, Purchase Order, or other document, are hereby objected to and shall be of no effect. Any Quotation offered or submitted by the Seller is not a firm offer and may be changed or revoked at any time. Acceptance of any offer made by the Seller is expressly limited to the exact terms contained in the offer and any attempt to alter or omit any such terms shall be ineffective.

Requirements.

Seller and Buyer shall sign a technical document which shall specify, among other things, the deliverables (each a “Deliverable”), acceptance criteria (“Acceptance Criteria”), and, if applicable, milestones and key design assumptions (“Key Assumptions”) for each Deliverable. Any other Products purchased in conjunction with Deliverables shall be provided in accordance with manufacturer’s published specifications.

B. Requests for changes in the Deliverables or Acceptance Criteria or notification of changes in Key Assumptions shall be submitted in writing (each, a “Change Order”) setting forth in reasonable detail the description and reasons for the change. As soon as reasonably practical, Seller shall access whether the changes set forth in the Change Order will have an impact on the project schedule, scope of work or price. Seller shall notify Buyer in writing accordingly and shall issue a quotation for the revised scope of work, if applicable. If Buyer agrees to proceed with the project based on the revised scope of work, both Parties shall sign the Change Order which will be incorporated into this agreement and Buyer shall issue a revised purchase order for the amount quoted by Seller. 

Factory Acceptance Testing. 

Seller shall conduct factory acceptance testing (FAT) at Seller’s facility for each Deliverables to verify that it meets the Acceptance Criteria. The Deliverables will be accepted by Buyer if they meet the Acceptance Criteria as evidenced by the factory acceptance test document provided by Seller to Buyer upon completion of FAT. The time and place of FAT shall be communicated by Seller to Buyer and Buyer may attend the FAT at its own option and expense. If they Buyer waives the FAT option, the supply shall automatically be deemed accepted. No acceptance testing, modifications in Hardware, Electronics or Software, or change in scope of supply shall be permissible at the Buyers site after FAT is completed or waived off. 

Price and Terms of Payment.

All prices quoted or acknowledged are F.O.B. factory and do not include any present or future sales, use, excise or other taxes imposed upon the sale or any transportation or insurance charges. All such taxes are the responsibility of the Buyer and any tax or taxes will be added to the invoice as a separate charge to be paid by the Buyer. Prices are subject to change without notice. Buyer shall pay all invoices within thirty (30) days of receipt of an invoice, unless other terms of sales are agreed upon in writing by both parties.

Should the Buyer’s financial responsibility become unsatisfactory to the Seller, cash payment or security satisfactory to the Seller may be required by the Seller for future deliveries and for the goods theretofore delivered. In the event the Buyer does not pay for any shipment when the same becomes due, then the past due amounts are subject to service charges of 1.5 percent per month or, if lower, the maximum permitted by law and the Seller may at any time thereafter suspend shipments, demand cash payments in advance, or terminate any contract in total, and the Buyer shall be liable for all costs incurred by the Seller including, but not limited to, attorney fees and collection agency fees.

INVOICE DISPUTES.

ALL DISPUTES AS TO THE AMOUNT(S) INVOICED HEREUNDER SHALL BE MADE, IN WRITING TO THE FOLLOWING ADDRESS: DUCOM INSTRUMENTS (USA), 620 JOHNSON AVE, BOHEMIA, NY - 11716. PAYMENTS WHICH ARE INTENDED BY THE BUYER TO REPRESENT “PAYMENT IN FULL” FOR THE GOODS SOLD, AND WHICH ARE LESS THAN THE AMOUNT SHOWN ON THE INVOICE AS BEING DUE, SHALL BE SENT TO THE DUCOM ADDRESS STATED ON YOUR INVOICE. IF SAID “PAYMENT IN FULL” CHECK IS NOT MADE TO STATED ADDRESS THEN, THE ACCEPTANCE OF SAID CHECK WILL NOT ACT AS A DISCHARGE OF THE REMAINING BALANCE DUE UNDER THIS ORDER. BUYER SHALL PAY TO SELLER, AT SELLER’S BILLING ADDRESS, ALL AMOUNTS THAT IT DOES NOT DISPUTE AND NOTHING HEREIN SHALL BE CONSTRUED TO RELIEVE BUYER FROM PAYING TO SELLER ANY SUCH AMOUNTS WHICH IT DOES NOT DISPUTE. THE ACCEPTANCE OF SAID PAYMENT WILL NOT ACT AS A DISCHARGE OF THE REMAINING DISPUTED BALANCE.

Delivery and Returns.

Shipping dates are approximate and are dependent upon the prompt receipt by the Seller of all progress payments, data, and instructions for the manufacture, assembly and/or processing of the goods and all materials, supplies, and equipment required for the manufacture, assembly and processing of such goods, including, but not limited to all raw materials, component parts, packaging or other necessary products. If the Buyer delays the furnishing of any such items the dates of shipment shall be automatically extended to compensate for such delay. Unless otherwise specified by the Buyer, and accepted by the Seller in writing, the Seller will select the most economical method and route of shipment. Transit insurance is the responsibility of the Buyer. In the event that the Buyer is unable or unwilling to take delivery of all or any part of the goods, the Seller shall place them into storage with all costs, including storage, insurance, demurrage, and transportation at the Buyer’s expense. Further, the date of completion of the goods by the Seller shall be regarded as the date of shipment and payments shall be due on the terms specified in the applicable invoice related thereto. In no case are goods to be returned without first obtaining the Seller’s written permission. Goods built to order are not subject to return for credit under any circumstances. If Seller authorizes the return of goods, goods must be securely packed by the Buyer in order to reach the Seller without damage.

Nonconformity.

All goods and services sold by Seller are to be inspected within 48 hours of receipt and should any of such goods or services fail to meet the written specifications accepted by Seller, Buyer shall not return the same, but shall notify Seller, stating full particulars in supports of its claim. Seller will, at Seller’s option, either repair or replace nonconforming goods upon their return. Claims for goods or services failing to conform to Seller’s specifications, shortages, delays, or failures in shipment or delivery, or for any other cause shall be deemed waived and released by Buyer unless made in writing within thirty (30) days after receipt of goods or services.

LIMITATION OF LIABILITY.

THE SELLER’S LIABILITY (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, OR STRICT LIABILITY) FOR ITS GOODS OR SERVICES SHALL BE LIMITED TO REPAIRING OR REPLACING PARTS FOUND BY THE SELLER TO BE DEFECTIVE. THE BUYER WILL SEND, AT THE BUYER’S SOLE EXPENSE, ANY ALLEGEDLY DEFECTIVE GOODS TO THE PLANT OF THE SELLER WHICH MANUFACTURED AND/OR ASSEMBLED AND/OR PROCESSED THEM. If the Seller furnishes technical or other advice to the Buyer, whether or not at the Buyer’s request, with respect to processing, further manufacture, or other use or resale of the goods, the Seller shall not be liable for, and the Buyer assumes all risk of, such advice and the results thereof. Seller will not defend or indemnify Buyer except as expressly approved or agreed to in writing by Seller.

DISCLAIMER OF CONSEQUENTIAL DAMAGES.

IN NO EVENT SHALL THE SELLER BE LIABLE FOR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY TRANSACTION INVOLVING THE GOODS OR SERVICES PROVIDED BY SELLER, INCLUDING WITHOUT LIMITATION, BREACH OF ANY OBLIGATION IMPOSED ON THE SELLER HEREUNDER OR IN CONNECTION HEREWITH. CONSEQUENTIAL DAMAGES FOR PURPOSES HEREOF SHALL INCLUDE, WITHOUT LIMITATION, LOSS OF USE, INCOME OR PROFIT, OR LOSSES SUSTAINED AS THE RESULT OF DELAY, INJURY, (INCLUDING DEATH TO ANY PERSON) OR LOSS OF OR DAMAGE TO PROPERTY (INCLUDING WITHOUT LIMITATION PROPERTY HANDLED OR PROCESSED BY THE USE OF THE GOODS). THE BUYER SHALL INDEMNIFY THE SELLER AGAINST ALL LIABILITY, COST OR EXPENSE WHICH MAY BE SUSTAINED BY THE SELLER ON ACCOUNT OF ANY SUCH LOSS, DAMAGE OR INJURY CAUSED BY OR RELATED TO THE ACTIONS OF BUYER.\

Conditions.

All orders or contracts are accepted with the understanding that they are subject to Seller’s current manufacturing schedules, and government regulations, orders, directives, and restrictions that may be in effect from time to time. The Seller shall not be liable for delays due to circumstances or acts beyond its control including, without limiting the generality of the foregoing, accident, strike or other labor troubles or disputes, flood, fire, war, or Act of God, civil commotion, lack of or inability to obtain labor or materials, embargo, delays in transportation, or because of compliance with any law or other governmental action, requirements, regulations or restrictions.

License.

Buyer acknowledges that any software programs (the “Software”) included with the Products are licensed to Buyer under the terms and conditions of the click-through license agreement provided with the Software (“EULA”) and that title to the Software (or any copies thereof) is not transferred to Buyer.

Instrument Warranty.

Seller warrants that the instrument (the "Instrument(s)") purchased from Seller will be free from defects in materials and workmanship during the applicable warranty period, provided that the Instrument has been operated at all times in accordance with the instruction manual and user guide by a certified operator who has attended Seller's training for the Instrument. If the Instrument is installed by an authorized field service engineer of Seller (the "Seller Representative"), then the warranty period for the Instrument ends twelve (12) months after the date of installation (as certified by Seller Representative) or thirteen (13) months after the date of shipment, whichever is shorter. If the Instrument is not installed by a Seller Representative, the warranty period for the Instrument terminates twelve (12) months after date of shipment. 

Claims for defective goods, shortages, or failures in shipment or delivery, or for any other cause shall be deemed waived and released by the Buyer unless made in writing within thirty (30) days after arrival of goods. The Seller warrants that: (a) the goods to be supplied will conform to the description in the Seller’s quotation; and (b) the Seller will convey good title to the goods free from any valid security interest, lien, or other encumbrance unknown to the Buyer. Goods furnished by Seller are subject to Seller’s standard tolerances for variations. THE SELLER MAKES NO WARRANTIES EXPRESSED OR IMPLIED, INCLUDING WARRANTIES AS TO THE GOODS OR SERVICES, MERCHANTABILITY OR AS TO THE FITNESS OF THE GOODS FOR ANY PARTICULAR USE OR PURPOSE, AND SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, DIRECTLY OR INDIRECTLY, OR ARISING FROM THE USE OF SUCH GOODS OR SERVICES OR FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.

Warranty Exclusion.

The warranties provided above and the remedies provided below will not apply to any Product if:

1. Seller determines that a problem is caused by accident, abuse, misuse, negligence, misapplication, fire, earthquake, flood, other force majeure event, failure of electrical power, the use of unauthorized parts or reagents, or unauthorized repairs or modifications;
2. Seller determines that a problem is caused during or as a result of shipment or relocation;
3. Seller's serial number has been removed or defaced from the Product; or
4. a problem arises from or is based on Seller's compliance with Buyer's specifications

Service Parts Warranty.

The Seller warrants that the Instrument service parts (the "Replacement Part(s)") provided during the warranty period from Seller will be free of defects in materials and workmanship, only if such parts are installed by Sellers representative. The warranty period for the Replacement Part is the greater of:

1. the remaining warranty period of the Instrument, or
2. ninety (90) days from the date of installation of the Replacement Part

Patents.

In addition to other remedies afford Seller, Buyer shall indemnify and hold Seller harmless from, and release and not make claim or suit against Seller because of, any suits, claims, losses, expenses (including reasonable attorney fees), or other liability made against, or suffered by, Buyer arising from any claim of, or infringement of, patent, copyright, trademark, or other proprietary right, at common law, or claim of unfair trade or unfair competition, resulting from, or occasioned by, Buyer’s use, possession, sale, or delivery of the goods or services sold to Buyer by Seller under private label instructions of Buyer or in accordance to specifications provided to Seller by Buyer.

Seller’s Property.

Unless otherwise agreed in writing, all personal property used to manufacture, assemble or otherwise make or process any goods delivered to Buyer, shall remain Seller’s sole property and are retained in Seller’s possession regardless of any charges to Buyer to cover part or all of the cost of the same. The sale of goods does not transfer the ownership of any intellectual property.

Cancellation.

An order once placed with and accepted by the Seller can be cancelled only with the Seller’s consent, in writing, and upon terms that will indemnify the Seller against loss. Unless otherwise agreed, the risk of loss to the goods shall rest with the Buyer upon delivery to the carrier at the Seller’s manufacturing facility, including risk associated with any goods subsequently returned to the Seller.

Force Majeure

Any delay in the performance of any duties (except for payment of fee owed) by either party will not be considered a breach if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or other event beyond the control of such party, provided that such party uses reasonable efforts to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.

Entire Agreement, Modification and Waiver.

Upon the Seller’s acceptance of the Buyer’s order, the terms and conditions set forth herein shall constitute the entire agreement between the Buyer and the Seller and no statement, correspondence, or other terms shall modify or affect the terms hereof. No change in these Terms and Conditions will be valid unless in writing approved by the Seller. These Terms and Conditions govern and control any transaction between the Seller and the Buyer notwithstanding the Seller’s use of Buyer’s purchase order number as an accommodation to the Buyer. No waiver by the Seller of a breach of any provision hereof shall constitute a waiver of any other breach of such provision or any other provision. No change in the order will be valid unless approved by Seller in writing. If any such change causes an increase in the cost of performing the order or in the time required by its performance, an equitable adjustment will be made and the order modified in writing accordingly.

Governing Law and Severability.

Any dispute which may arise from a sales order and for any goods purchased hereunder shall be governed by the laws of the State of New York without regard to rules governing conflict of laws. Any provision hereof prohibited by law shall be ineffective to the extent of such prohibition and without invalidating the remaining provision hereof.

Forum.

It is further agreed that any action to enforce this Agreement or any invoice related hereto or any related transaction or any portion hereof shall be commenced and prosecuted in Suffolk County, NY.

Assignment.

This order is not assignable by Buyer in whole or part without prior written consent of Seller.

Due Diligence.

The responsibility of determining the suitability of product(s) or service(s) and its scope of supply for the purposes for which they are being purchased lies solely with buyer. The seller offers application guidance, product specifications and other supporting materials to aid the buyer in this determination, but assumes no responsibility of the final choices of products, services and configurations that are made by the Buyer. It shall remain the sole responsibility to the Buyer to consult with the Seller and fully determine if there is a need to modify the scope of supply or specifications to meet the Buyers requirements before placing an order with the Seller and shall be considered accepted only if the modifications are accepted in writing by both parties at the time of placing the order. Modifications in scope of supply and specifications shall be subject to the Sellers acceptance and a change request received 24 hours after an order is placed will incur a change order fee and the cost of the product(s) and service(s) themselves. 

Remote Services.

When the Buyer opts for remote services offered by the Buyer, the Seller accepts to have a qualified electrician and a technician familiar with mechanical systems available for the period during which such services are rendered. The Buyers technician and electrician must be adequately equipped to carry out basic diagnostics and troubleshooting in a safe, professional and timely manner using appropriate tools at the request of the Sellers engineers. The Buyer shall also ensure the availability of a stable internet connection, webcam, microphone, telephone and a computer at the place of installation. The facilitation of such tools and manpower in a timely manner is the sole responsibility of the Buyer. Verifying the qualification and suitability of such manpower and availability of appropriate tools shall be the responsibility of the Buyer, and, any damage caused due to improper or use of improper tools shall be the sole responsibility of the Buyer.