Terms and Conditions
Terms & Conditions of Sale for FermChem, LLC Products and Services
This document sets forth the Terms & Conditions of Sale for goods manufactured and/or supplied, and services provided, by FermChem, LLC of Fort Collins, Colorado (“FermChem”) and sold to the original purchaser thereof (“Buyer”). Unless otherwise specifically stated herein, the term “FermChem” includes only FermChem, LLC and none of its affiliates. Unless otherwise specifically stated in a previously-executed written purchase agreement signed by authorized representatives of FermChem and Buyer, these Terms & Conditions of Sale establish the rights, obligations and remedies of FermChem and Buyer which apply to this offer and any resulting order or contract for the sale of FermChem’s goods and/or services (“Products”).
1. APPLICABLE TERMS & CONDITIONS:
These Terms & Conditions of Sale are contained directly and/or by reference in FermChem’s offer, order acknowledgment, and invoice documents. The first of the following acts constitutes an acceptance of FermChem’s offer and not a counteroffer and creates a contract of sale (“Contract”) in accordance with these Terms & Conditions: (i) Buyer’s issuance of a purchase order document against FermChem’s offer; (ii) acknowledgement of Buyer’s order by FermChem; or (iii) commencement of any performance by FermChem pursuant to Buyer’s order. Provisions contained in Buyer’s purchase documents (including electronic commerce interfaces) that materially alter, add to or subtract from the provisions of these Terms & Conditions of Sale are not a part of the Contract.
Buyer may cancel goods orders subject to fair charges for FermChem’s expenses including handling, inspection, restocking, freight and invoicing charges as applicable, provided that Buyer returns such goods to FermChem at Buyer’s expense within 30 days of delivery and in the same condition as received. Regarding chemical and test kit subscription plans, annual subscription orders are non-refundable. Monthly and quarterly subscriptions may be canceled without any charges after three billing cycles. If monthly and/or quarterly subscriptions are canceled before three billing cycles, FermChem reserves the right to charge $100 to cover the cost of shipping and discounted pricing as part of the subscription program versus standard product pricing. Buyer may cancel service orders on ninety (90) day’s prior written notice and refunds will be prorated based on the duration of the service plan. Inspections and re-instatement fees may apply upon cancellation or expiration of service programs. Seller may cancel all or part of any order prior to delivery without liability if the order includes any Products that Seller determines may not comply with export, safety, local certification, or other applicable compliance requirements.
Delivery will be accomplished FCA FermChem’s facility located in Fort Collins, Colorado, United States (Incoterms 2010). Legal title and risk of loss or damage pass to Buyer upon transfer to the first carrier. FermChem will use commercially reasonable efforts to deliver the Products ordered herein within the time specified on the face of this Contract or, if no time is specified, within FermChem’s normal lead-time necessary for FermChem to deliver the Products sold hereunder. One-time purchases will be shipped within 3-5 business days of receiving the order. Quarterly subscriptions are shipped on an ad hoc basis, meaning that chemical shipments will be sent within 3-5 business days of receiving payment. Monthly subscriptions are shipped based on two schedules: Option 1) for every purchase completed on or between the 1st and the 15th of any given month, shipments will be sent out by the 20th of the same month; Option 2) for every purchase completed on or between the 16th and the 31st of any given month, shipments will be sent out by the 5th of the following month. Upon prior agreement with Buyer and for an additional charge, FermChem will deliver the Products on an expedited basis. Standard service delivery hours are 8 am – 5 pm Monday through Friday, excluding holidays.
Buyer will promptly inspect and accept any Products delivered pursuant to this Contract after receipt of such Products. In the event the Products do not conform to any applicable specifications, Buyer will promptly notify FermChem of such nonconformance in writing. FermChem will have a reasonable opportunity to repair or replace the nonconforming product at its option. Buyer will be deemed to have accepted any Products delivered hereunder and to have waived any such nonconformance in the event such a written notification is not received by FermChem within thirty (30) days of delivery.
5. PRICES & ORDER SIZES:
All prices are in U.S. dollars and are based on delivery as stated above. Prices do not include any charges for services such as insurance; brokerage fees; sales, use, inventory or excise taxes; import or export duties; special financing fees; VAT, income or royalty taxes imposed outside the U.S.; consular fees; special permits or licenses; or other charges imposed upon the production, sale, distribution, or delivery of Products. Buyer will either pay any and all such charges or provide FermChem with acceptable exemption certificates, which obligation survives performance under this Contract. FermChem reserves the right to establish minimum order sizes and will advise Buyer accordingly.
All payments must be made in U.S. dollars. For Internet orders, the purchase price is due at the time and manner set forth at www.FermChem.com. Invoices for all other orders are due and payable NET 30 DAYS from date of the invoice without regard to delays for inspection or transportation, with payments to be made by check to FermChem at the above address or by wire transfer to the account stated on the front of FermChem’s invoice, or for customers with no established credit, FermChem may require cash or credit card payment in advance of delivery. In the event payments are not made or not made in a timely manner, FermChem may, in addition to all other remedies provided at law, either: (a) declare Buyer’s performance in breach and terminate this Contract for default; (b) withhold future shipments until delinquent payments are made; (c) deliver future shipments on a cash-with-order or cash-in-advance basis even after the delinquency is cured; (d) charge interest on the delinquency at a rate of 1-1/2% per month or the maximum rate permitted by law, if lower, for each month or part thereof of delinquency in payment plus applicable storage charges and/or inventory carrying charges; (e) repossess the Products for which payment has not been made; (f) recover all costs of collection including reasonable attorney’s fees; or (g) combine any of the above rights and remedies as is practicable and permitted by law. Buyer is prohibited from setting off any and all monies owed under this from any other sums, whether liquidated or not, that are or may be due Buyer, which arise out of a different transaction with FermChem or any of its affiliates. Should Buyer’s financial responsibility become unsatisfactory to FermChem in its reasonable discretion, FermChem may require cash payment or other security. If Buyer fails to meet these requirements, FermChem may treat such failure as reasonable grounds for repudiation of this Contract, in which case reasonable cancellation charges shall be due FermChem. Buyer grants FermChem a security interest in the Products to secure payment in full, which payment releases the security interest but only if such payments could not be considered an avoidable transfer under the U.S. Bankruptcy Code or other applicable laws. Buyer’s insolvency, bankruptcy, assignment for the benefit of creditors, or dissolution or termination of the existence of Buyer, constitutes a default under this Contract and affords FermChem all the remedies of a secured party under the U.C.C., as well as the remedies stated above for late payment or non-payment. See ¶20 for further wire transfer requirements.
7. LIMITED WARRANTY:
FermChem warrants that Products sold hereunder will be free from defects in material and workmanship and will, when used in accordance with the manufacturer’s operating and maintenance instructions, conform to any express written warranty pertaining to the specific goods purchased, which for most FermChem instruments is for a period of twelve (12) months from delivery. FermChem warrants that services furnished hereunder will be free from defects in workmanship for a period of ninety (90) days from the completion of the services. Parts provided by FermChem in the performance of services may be new or refurbished parts functioning equivalent to new parts. Any non-functioning parts that are repaired by FermChem shall become the property of FermChem. No warranties are extended to consumable items such as, without limitation, reagents, batteries, mercury cells, and light bulbs. All other guarantees, warranties, conditions and representations, either express or implied, whether arising under any statute, law, commercial usage or otherwise, including implied warranties of merchantability and fitness for a particular purpose, are hereby excluded. The sole remedy for Products not meeting this Limited Warranty is replacement, credit or refund of the purchase price. This remedy will not be deemed to have failed of its essential purpose so long as FermChem is willing to provide such replacement, credit or refund.
Indemnification applies to a party and to such party’s successors-in-interest, assignees, affiliates, directors, officers, and employees (“Indemnified Parties”). FermChem is responsible for and will defend, indemnify and hold harmless the Buyer Indemnified Parties against all losses, claims, expenses or damages which may result from accident, injury, damage, or death due to FermChem’s breach of the Limited Warranty. Buyer is responsible for and will defend, indemnify and hold harmless the FermChem Indemnified Parties against all losses, claims, expenses or damages which may result from accident, injury, damage, or death due to negligence, misuse or misapplication of any goods or services, violations of law, or the breach of any provision of this Contract by the Buyer, its affiliates, or those employed by, controlled by or in privity with them. Buyer’s workers’ compensation immunity, if any, does not preclude or limit its indemnification obligations.
9. PATENT PROTECTION:
Subject to all limitations of liability provided herein, FermChem will, with respect to any Products of FermChem’s design or manufacture, indemnify Buyer from any and all damages and costs as finally determined by a court of competent jurisdiction in any suit for infringement of any U.S. patent (or European patent for Products that FermChem sells to Buyer for end use in a member state of the E.U.) that has issued as of the delivery date, solely by reason of the sale or normal use of any Products sold to Buyer hereunder and TERMS AND CONDITIONS OF SALE FOR FERMCHEM® PRODUCTS v. 2018-08-14 2 from reasonable expenses incurred by Buyer in defense of such suit if FermChem does not undertake the defense thereof, provided that Buyer promptly notifies FermChem of such suit and offers FermChem either (i) full and exclusive control of the defense of such suit when Products of FermChem only are involved, or (ii) the right to participate in the defense of such suit when products other than those of FermChem are also involved. FermChem’s warranty as to use patents only applies to infringement arising solely out of the inherent operation of the Products according to their applications as envisioned by FermChem’s specifications. In case the Products are in such suit held to constitute infringement and the use of the Products is enjoined, FermChem will, at its own expense and at its option, either procure for Buyer the right to continue using such Products or replace them with non-infringing products, or modify them so they become non-infringing, or remove the Products and refund the purchase price (prorated for depreciation) and the transportation costs thereof. The foregoing states the entire liability of FermChem for patent infringement by the Products. Further, to the same extent as set forth in FermChem’s above obligation to Buyer, Buyer agrees to defend, indemnify and hold harmless FermChem for patent infringement related to (x) any goods manufactured to the Buyer’s design, (y) services provided in accordance with the Buyer’s instructions, or (z) FermChem’s Products when used in combination with any other devices, parts or software not provided by FermChem hereunder.
10. TRADEMARKS AND OTHER LABELS:
Buyer agrees not to remove or alter any indicia of manufacturing origin or patent numbers contained on or within the Products, including without limitation the serial numbers or trademarks on nameplates or cast, molded or machined components.
11. SOFTWARE AND DATA.
All licenses to FermChem’s separately-provided software products are subject to the separate software license agreement(s) accompanying the software media and/or included as an Appendix to these Terms & Conditions of Sale. Except to the extent such express licenses conflict with the remainder of this paragraph, the following also applies relative to FermChem’s software : FermChem grants Buyer only a personal, non-exclusive license to access and use the software provided by FermChem with Products purchased hereunder solely as necessary for Buyer to enjoy the benefit of the Products. A portion of the software may contain or consist of open source software, which Buyer may use under the terms and conditions of the specific license under which the open source software is distributed. Buyer agrees that it will be bound by all such license agreements. Title to software remains with the applicable licensor(s). In connection with Buyer’s use of Products, FermChem may obtain, receive, or collect data or information, including data produced by the Products. In such cases, Buyer grants FermChem a non-exclusive, worldwide, royalty-free, perpetual, non-revocable license to use, compile, distribute, display, store, process, reproduce, or create derivative works of such data, or to aggregate such data for use in an anonymous manner, solely to facilitate marketing, sales and R&D activities of FermChem and its affiliates.
12. PROPRIETARY INFORMATION; PRIVACY:
13. CHANGES AND ADDITIONAL CHARGES:
FermChem reserves the right to make design changes or improvements to any products of the same general class as Products being delivered hereunder without liability or obligation to incorporate such changes or improvements to Products ordered by Buyer unless agreed upon in writing before the Products’ delivery date. Services which must be performed as a result of any of the following conditions are subject to additional charges for labor, travel and parts: (a) equipment alterations not authorized in writing by FermChem; (b) damage resulting from improper use or handling, accident, neglect, power surge, or operation in an environment or manner in which the instrument is not designed to operate or is not in accordance with FermChem’s operating manuals; (c) the use of parts or accessories not provided by FermChem; (d) damage resulting from acts of war, terrorism or nature; (e) services outside standard business hours; (f) site prework not complete per proposal; or (g) any repairs required to ensure equipment meets manufacturer’s specifications upon activation of a service agreement.
14. SITE ACCESS / PREPARATION / WORKER SAFETY / ENVIRONMENTAL COMPLIANCE:
In connection with services provided by FermChem, Buyer agrees to permit prompt access to equipment. Buyer assumes full responsibility to back-up or otherwise protect its data against loss, damage or destruction before services are performed. Buyer is the operator and in full control of its premises, including those areas where FermChem employees or contractors are performing service, repair and maintenance activities. Buyer will ensure that all necessary measures are taken for safety and security of working conditions, sites and installations during the performance of services. Buyer is the generator of any resulting wastes, including without limitation hazardous wastes. Buyer is solely responsible to arrange for the disposal of any wastes at its own expense. Buyer will, at its own expense, provide FermChem employees and contractors working on Buyer’s premises with all information and training required under applicable safety compliance regulations and Buyer’s policies. If the instrument to be serviced is in a Confined Space, as that term is defined under OSHA regulations, Buyer is solely responsible to make it available to be serviced in an unconfined space. FermChem service technicians will not work in Confined Spaces. In the event that a Buyer requires FermChem employees or contractors to attend safety or compliance training programs provided by Buyer, Buyer will pay FermChem the standard hourly rate and expense reimbursement for such training attended. The attendance at or completion of such training does not create or expand any warranty or obligation of FermChem and does not serve to alter, amend, limit or supersede any part of this Contract.
15. LIMITATIONS ON USE:
Buyer will not use any Products for any purpose other than those identified in FermChem’s catalogs and literature as intended uses. Unless FermChem has advised the Buyer in writing, in no event will Buyer use any Products in drugs, food additives, food or cosmetics, or medical applications for humans or animals. In no event will Buyer use in any application any Product that requires FDA 510(k) clearance unless and only to the extent the Product has such clearance. Buyer will not sell, transfer, export or re-export any FermChem Products or technology for use in activities which involve the design, development, production, use or stockpiling of nuclear, chemical or biological weapons or missiles, nor use FermChem Products or technology in any facility which engages in activities relating to such weapons. Unless the “ship-to” address is in California, U.S.A., the Products are not intended for sale in California and may lack markings required by California Proposition 65; accordingly, unless Buyer has ordered Products specifying a California ship-to address, Buyer will not sell or deliver any FermChem Products for use in California. Any warranty granted by FermChem is void if any goods covered by such warranty are used for any purpose not permitted hereunder.
16. EXPORT AND IMPORT LICENSES AND COMPLIANCE WITH LAWS:
Unless otherwise specified in this Contract, Buyer is responsible for obtaining any required export or import licenses. Buyer will comply with all laws and regulations applicable to the installation or use of all Products, including applicable import and export control laws and regulations of the U.S., E.U. and any other country having proper jurisdiction, and will obtain all necessary export licenses in connection with any subsequent export, re-export, transfer and use of all Products and technology delivered hereunder. Buyer will comply with all local, national, and other laws of all jurisdictions globally relating to anti-corruption, bribery, extortion, kickbacks, or similar matters which are applicable to Buyer’s business activities in connection with this Contract, including but not limited to the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”).
17. RELATIONSHIP OF PARTIES:
Buyer is not an agent or representative of FermChem and will not present itself as such under any circumstances unless and to the extent it has been formally screened by FermChem’s compliance department and received a separate duly-authorized letter from FermChem setting forth the scope and limitations of such authorization.
18. FORCE MAJEURE:
FermChem is excused from performance of its obligations under this Contract to the extent caused by acts or omissions that are beyond its control of, including but not limited to Government embargoes, blockages, seizures or freeze of assets, delays or refusals to grant an export or import license or the suspension or revocation thereof, or any other acts of any Government; fires, floods, severe weather conditions, or any other acts of God; quarantines; labor strikes or lockouts; riots; strife; insurrections; civil disobedience or acts of criminals or terrorists; war; material shortages or delays in deliveries to FermChem by third parties. In the event of the existence of any force majeure circumstances, the period of time for delivery, payment terms and payments under any letters of credit will be extended for a period of time equal to the period of delay. If the force majeure circumstances extend for six months, FermChem may, at its option, terminate this Contract without penalty and without being deemed in default or in breach thereof.
19. NON ASSIGNMENT AND WAIVER:
Buyer will not transfer or assign this Contract or any rights or interests hereunder without FermChem’s prior written consent. Failure of either party to insist upon strict performance of any provision of this Contract, or to exercise any right or privilege contained herein, or the waiver of any breach of the terms or conditions of this Contract will not be construed as thereafter waiving any such terms, conditions, rights, or privileges, and the same will continue and remain in force and effect as if no waiver had occurred.
20. FUNDS TRANSFERS (PAYMENTS):
Buyer and FermChem both recognize that there is a risk of banking fraud when individuals impersonating a business demand payment under new banking or mailing instructions. To avoid this risk, Buyer must verbally confirm any new or changed bank transfer or mailing instructions by calling FermChem at +1-970-663-1377 and speaking with FermChem’s Credit Manager before mailing or transferring any monies using the new instructions. Both parties agree that they will not institute mailing or bank transfer instruction changes and require immediate payment under the new instructions but will instead provide a ten (10) day grace period to verify any payment instruction changes before any new or outstanding payments are due using the new instructions.
21. LIMITATION OF LIABILITY:
None of the FermChem Indemnified Parties will be liable to Buyer under any circumstances for any special, treble, incidental or consequential damages, including without limitation, damage to or loss of property other than for the Products purchased hereunder; damages incurred in installation, repair or replacement; lost profits, revenue or opportunity; loss of use; losses resulting from or related to downtime of the products or inaccurate measurements or reporting; the cost of substitute products; or claims of Buyer’s customers for such damages, howsoever caused, and whether based on warranty, contract, and/or tort (including negligence, strict liability or otherwise). The total liability of the FermChem Indemnified Parties arising out of the performance or nonperformance hereunder or FermChem’s obligations in connection with the design, manufacture, sale, delivery, and/or use of Products will in no circumstance exceed in the aggregate a sum equal to twice the amount actually paid to FermChem for Products delivered hereunder.
22. APPLICABLE LAW AND DISPUTE RESOLUTION:
The construction, interpretation and performance hereof and all transactions hereunder shall be governed by the laws of the State of Colorado, without regard to its principles or laws regarding conflicts of laws. If any provision of this Contract violates any Federal, State or local statutes or regulations of any countries having jurisdiction of this transaction, or is illegal for any reason, said provision shall be self-deleting without affecting the validity of the remaining provisions. Unless otherwise specifically agreed upon in writing between FermChem and Buyer, any dispute relating to this Contract which is not resolved by the parties shall be adjudicated in order of preference by a court of competent jurisdiction (i) in the State of Colorado, U.S.A. if Buyer has minimum contacts with Colorado and the U.S., (ii) elsewhere in the U.S. if Buyer has minimum contacts with the U.S. but not Colorado, or (iii) in a neutral location if Buyer does not have minimum contacts with the United States.
23. ENTIRE AGREEMENT & MODIFICATION:
These Terms & Conditions of Sale constitute the entire agreement between the parties and supersede any prior agreements or representations, whether oral or written. No change to or modification of these Terms & Conditions shall be binding upon FermChem unless in a written instrument specifically referencing that it is amending these Terms & Conditions of Sale and signed by an authorized representative of FermChem. FermChem rejects any additional or inconsistent Terms & Conditions of Sale offered by Buyer at any time, whether or not such terms or conditions materially alter the Terms & Conditions herein and irrespective of FermChem’s acceptance of Buyer’s order for the described goods and services.