These General Terms and Conditions of Sale ("Agreement"), together with the applicable Credit Application and Agreement ("Credit Application") and the Limited Warranty, Return & Exchange Policy ("Exchange Policy") (collectively, the "Hanna Agreements") constitute the entire agreement between Hanna Instruments United States, Inc., a Rhode Island corporation ("Hanna Instruments") and the customer listed in the Customer Agreement ("Customer") for the purchased product(s) (the "Product") described in any applicable purchase order accepted by Hanna Instruments (including any orders made by Customer on Hanna Instruments website). Customer agrees to accept and be bound by the terms and conditions set forth herein upon submission of an Order.
2. PRODUCT PRICES
- 2.1 Determination of Price. All Product prices will be the prices ("Price") listed on the Hanna Instruments website ("Website"), on a valid Hanna Instruments price list ("Price List"), or in a valid quote provided to Customer from Hanna Instruments ("Quote"). A Quote is valid for 30 days from the date that the Quote is provided to Customer. Through submission of an applicable Order, Customer agrees to the pricing listed on the Website, valid Price List, or valid Quote at the time the order is placed.
- 2.2 Taxes. Unless otherwise indicated, prices listed on the Website do not include applicable taxes, including but not limited to excise, sales or use taxes. Any taxes (other than taxes due on Hanna Instruments' net income) that are payable on transactions hereunder will be the sole responsibility of Customer. Hanna Instruments reserves the right to invoice Customer for any such taxes that are or may become payable by Hanna Instruments. The total cost of each Order is subject to increase sufficient to compensate for any tax, excise, duty or levy hereafter enacted and imposed by any government authority, or for any expenses or charges due to war, hostilities, or other disorders, domestic or foreign, whereby the cost of the production or sale of articles to which such prices apply will be increased. If Customer claims any exemption, Customer must provide a valid, signed certificate or letter of exemption for each respective jurisdiction at the time of the order.
3. TERMS OF PAYMENT.
Hanna Instruments may invoice ("Invoice") Customer upon shipment of the Product for the Price and all other charges payable by Customer in accordance with the terms contained within the Invoice. If no payment terms are stated on the Invoice, payment shall be net thirty (30) days from the Invoice date. If Customer fails to pay any amount when due, a one and one-half percent (1.5%) administrative fee will be assessed to Customer in order to cover Hanna Instrument's internal costs, and any other costs and expenses, associated with efforts in collecting payment or otherwise enforcing Hanna Instrument's rights hereunder (including, without limitation, reasonable attorney's fees, disbursements, and court costs). All payments due hereunder shall be made in United States currency.
4. ACCEPTANCE OF ORDERS AND SHIPMENT OF PRODUCTS
- 4.1 Acceptance of Orders. Hanna Instruments will not be bound by any Order for Product placed by Customer until such Order has been accepted by Hanna Instruments. Upon Hanna Instruments' acceptance of an Order by way of written confirmation, such Order will constitute a binding agreement between Hanna Instruments to sell and ship the Product designated in the applicable Order and the Customer to tender payment for the Products specified.
- 4.2 Inconsistent Terms in an Order. In the event any provisions contained in an Order provided by Customer to Hanna Instruments are inconsistent with or in addition to the provisions contained within the Hanna Agreements, whether alone or in combination, such inconsistent or additional Customer provisions are expressly rejected by Hanna Instruments, and this document shall be construed as a counter offer and shall not be effective as acceptance of Customer's Order.
- 4.3 Shipping of the Products. Hanna Instruments will ship to Customer the Product, or components thereof, set forth in the applicable Order confirmation within a commercially reasonable time frame. The Product will be shipped F.O.B Hanna Instruments' shipping point to the destination specified by Customer on Order. In the event that a delay occurs due to a cause outside of Hanna Instruments' reasonable control, Hanna Instruments reserves the right to terminate the Order or to reschedule the shipment within a reasonable amount of time.
- 4.4 Cancellation. Orders may not be canceled after shipment of Product, except upon Hanna Instrument's written consent, with Customer responsible for restocking charges that may apply. Hanna Instruments has the right to cancel any sale under this Agreement without liability to Customer (except for the refund of any funds already paid) if the manufacture or sale of any Product specified in the Order is or becomes technically or economically impractical or if the manufacturer ceases to manufacture the Product or any part thereof for any reason.
- 4.5 Acceptance of Products. Customer will inspect each shipment upon receipt to verify that the correct Products and quantities were delivered and to verify that no damage occurred during shipment. Customer will report all discrepancies and damage to Hanna Instruments within 5 business days. The Products shipped will be deemed accepted by Customer unless notice of defect is received within 5 business days of delivery and the Product in question is returned to Hanna Instruments within 30 days of delivery. Customer will only reject the Products if incorrect Product is shipped, if the Product is visibly damaged or if Product fails to conform to the published specifications. Customer's sole remedy, and Hanna Instruments' exclusive obligation, is, at Hanna Instruments' option, to repair the defective Product or replace it with an equivalent unit in accordance with the Hanna Agreements, as applicable.
5. LIMITED PRODUCT WARRANTY, RETURNS
- 5.1 Warranties. Hanna Instruments hereby warrants to Customer that the Product will perform or operate substantially in conformance with Hanna Instruments' specifications and be free of defects in material or workmanship, when subjected to normal, proper and intended use conditions in accordance with stated operating limitations and prescribed maintenance procedures for the time period explicitly stated in any product documentation (including any electronic or physical published specifications and package inserts) ("Warranty Period"). If no time period is specified in the product documentation, the Warranty Period shall be a maximum period of eighteen (18) months from the factory ship date, the factory ship date counting as the first date of the Warranty Period. Customer must notify Hanna Instruments in writing with an accompanying claim number within five (5) days of the discovery of any nonconformance or defect, which notice shall include the Product model and serial number (if applicable) and details associated with the warranty claim. Repair or replacement of Product under warranty SHALL NOT extend the warranty originally issued with the Product originally purchased by Customer.
- Hanna Instruments SHALL NOT have any obligations to make repairs, replacements or corrections to a Product that are required, in whole or in part, due to one or more of (i) normal wear and tear, (ii) accident, disaster, and/or force majeure event, (iii) abuse, misuse, fault or negligence on the part of Customer, (iv) use of Product in a manner not intended and/or for which Product was designed, (v) causes external to the Product, such as, but not limited to, power failure or electrical surged, (vi) improper handling and storage of Product, (vii) use of Product in combination with third party products not supplied by Hanna Instruments, (viii) ordinary maintenance, (ix) repairs or alternations performed by a party other than Hanna Instruments or Hanna Instrument's authorized representatives, (x) failure to maintainer Product in accordance with Hanna Instruments written instructions.
- 5.2 Exclusive Warranties. With the exception of the warranty above, Hanna Instruments makes no warranties whether express or implied with regard to the product. All implied warranties, including warranties of merchantability and warranties of fitness for a particular purpose, are hereby expressly disclaimed. All implied warranties against infringement are hereby expressly disclaimed. No dealer or distributor of Hanna Instruments product is authorized to bind Hanna Instruments to any representation or warranty other than as set forth above in Section 5.1.
- 5.3 Component Materials. Hanna Instruments hereby disclaims any and all warranties, express and implied, with respect to third party components, parts or materials that are used with the products, including the use of product as a component of a third party component, part, or material. Hanna Instruments hereby disclaims any and all warranties, express and implied, with respect to third party installations of products, additional manufacturing provided by vendors and any installation provided by installer. Customer hereby acknowledges and agrees that its sole source of remedy for any flaw or defect in the additional manufacturing is and will be through separate third party action with or against, or pursuant to warranties supplied by, the manufacturer of the component materials or applicable vendors.
- 5.4 Limited Liability. The liability of Hanna Instruments, whether based in contract, tort, or otherwise, will not exceed the price of the Products in the applicable order for which Hanna Instruments' liability is claimed, and in no event will Hanna Instruments be liable for any special, indirect, incidental, or consequential damages of any nature, whether based on contract, tort, or otherwise, that arise in connection with the products or in connection with either Hanna Instruments' failure to deliver or its late delivery of the products (including, but not limited to, loss of use of the products and loss of profits).
- 5.5 Acknowledgment. Customer acknowledges that the remedies provided herein are exclusive and in lieu of all other remedies available to customer at law or in equity.
- 5.6 Limitation on Deductions. Customer hereby agrees that, in making any and all payments to Hanna Instruments under the terms of the Hanna Agreements, no deductions for warranty or any such other claims against Hanna Instruments will be made unless Customer receives prior approval of the validity of such a claim from Hanna Instruments. Any costs for shipping defective Products to Hanna Instruments will be borne by Hanna Instruments.
- 5.7 Returns. All Product returned to Hanna Instruments, whether covered under the warranty stated in Section 5.1 or not, must have a Return Goods Authorization (RGA) number associated with it that can be obtained by contacting Hanna Instruments. Any returned Product not bearing an RGA number will be refused. The RGA number must be clearly marked on the outside of the container in which the Product is being shipped back to Hanna Instruments. Customer is responsible for any prepaid shipping costs and insurance associated with returning the Product. Product under warranty in accordance with Section 5.1 of this Agreement may be returned to Hanna Instruments for repair or replacement, at Hanna Instrument's discretion. Replacement parts may be new or refurbished, at Hanna Instrument's discretion, as long as the resultant product performs or operates substantially in conformance with Hanna Instruments' specifications. All Product returned for repair or replacement, regardless of whether it is being returned in accordance with Section 5.1 of this Agreement, must be preceded or accompanied by a proof of purchase, such as the original invoice or packing slip. All returns for which a credit is requested must be returned in the original packaging with a clearly visible and legible label. Hanna Instruments reserves the right to inspect all returned Product. Credit will only be issued for Product returned in new or like-new condition, as assessed by Hanna Instruments. Under special circumstances with respect to warranty claims, it may be deemed necessary by Hanna to issue a Return In Advance (RIA). In such cases, the defective Product must be returned to Hanna within 30 days. Product not returned within 30 days become chargeable. All returned Product must be packed with due care to avoid damage during transport, and in accordance with applicable laws, biohazard decontamination procedures, and any product-specific handling instructions provided by Hanna Instruments, the failure of which renders any warranty null and void. In the event that Product is returned to Hanna Instruments under a warranty claim and it is determined by Hanna Instruments that some or all of the work necessary to ensure that the Product performs and/or operates substantially in conformance with Hanna Instruments' specification is or will not be covered by the warranty under Section 5.1 of this Agreement, Customer is responsible for all costs of investigating and responding to the warranty claim, and for the cost of any work completed that is not covered by the warranty under Section 5.1, at the prevailing rates for time and materials.
6. INDEMNITY OBLIGATIONS:
Customer will release, protect, defend, indemnify and hold harmless Hanna Instruments, its affiliated companies, co-venturers and invitees, and the directors, officers, employees, agents, representatives and underwriters ("Hanna Indemnities") from and against any and all claims, demands, causes of action and lawsuits of every kind and character brought against Hanna Indemnities by any third party for personal injury, death or loss of or damage to property arising out of or in any way directly or indirectly related to the use of the Products by Customer, in each case except to the extent caused by the gross negligence or intentional misconduct of the Hanna Indemnities.
- 7.1 License. Any software products incorporated into or forming part of a Product ("Software") are licensed to Customer, and not sold. The words "purchase", "sell" or similar or derivative words in reference to Software are understood and agreed to by the Parties to mean "license", and that the word "buyer" or similar or derivative words are understood and agreed to by the Parties to mean "licensee". Hanna Instruments grants to Customer a nonexclusive, royalty-free, nontransferable, non-sublicensable license to use the Software, and any related documentation, for internal business purposes only.
- 7.2 Limitations. Unless otherwise expressly permitted by Hanna Instruments, Customer may not copy, modify, enhance, decompile, disassemble, or reverse-engineer the Software; determine or attempt to determine any source code, algorithms, methods or techniques embodied in any Software; misuse or use the Software for any illegal, harmful, fraudulent, or offensive purposes; or otherwise access or use any Software except as expressly authorized in Section 7
- 7.3 Ownership of Third Party Software. In the event that certain Software provided to Customer are owned by one or more third parties and licensed to Hanna Industries, the Parties agree that such third parties retain ownership of and title to such Software. The warranty and indemnification provisions set forth in this Agreement shall not apply to Software owned by third parties.
8. EXPORT RESTRICTION
Customer acknowledges and understands that each Product is intended for sale and use in the United States of America ("US") only. The warranty under subsection 5.1 does not apply to use of the Product outside of the US. Product shall not be exported unless otherwise agreed to in writing by the Parties. Product that is exported will be subject to export control of the US government.
9. Pollution; hazardous materials
- 9.1 Indemnification. Customer agrees to defend, indemnify and hold harmless Hanna Indemnitees against any loss, damage, expense, claim and any other cost or liability arising as a result of any pollution, contamination, improper handling and transport of hazardous materials, or other loss or damage attributable to the act or omission of Customer or its employees, agent or customers, which arises in connection with any Product or service provided by Hanna Instruments.
- 9.2 Shipment of Chemicals. Customer shall not ship any chemicals in connection with the Product unless the chemicals and Product are packaged and shipped in accordance with all applicable laws and any instructions provided. Only unopened chemicals and reagents may be returned to Hanna Instruments. When shipping any chemicals in connection with the Product, wherein the chemicals are not provided by Hanna Industries, Customer must provide the applicable Material Safety Data Sheet ("MSDS") in the shipment.
10. FORCE MAJEURE AND AVAILABILITY OF MATERIALS
- 10.1 Force Majeure. Except for Customer's payment obligations to Hanna Instruments, neither party will be in default in the performance of its obligations under the Hanna Agreements if such performance is prevented or delayed because of war, hostilities, revolution, civil commotion, riot, strike, labor dispute, lack or failure of transportation facilities, epidemic, fire, wind, earthquake, storm or flood, use of any law, order, proclamation, regulation or ordinance of any government, or of any subdivision thereof, because of Acts of God or for any other cause, whether similar or dissimilar to those enumerated, that is beyond the reasonable control and without the fault or negligence of the party whose performance is affected (any such act is hereinafter called "Force Majeure").
- 10.2 Notice of Event of Force Majeure. In each instance of Force Majeure, the party whose performance is affected will give the other party written notice thereof no later than five (5) days after having knowledge of the circumstances of Force Majeure or as soon as circumstances otherwise permit. Such notice will include a brief description of the events or circumstances constituting Force Majeure and an estimate of the anticipated delay in performance caused thereby. Not later than five (5) days after knowledge of the cessation of any such continuing events or of circumstances constituting Force Majeure, the party whose performance was affected will give the other party written notice of the date of such cessation.
11. ENTIRE AGREEMENT; AMENDMENT
The Hanna Agreements and applicable Order contain the entire understanding between the parties with respect to the subject manner hereof and supersedes all prior and contemporaneous written or oral negotiations and agreements between them regarding the subject matter hereof. The Hanna Agreements may be amended only by a writing signed by both of the parties.
If any provision of The Hanna Agreements is determined to be invalid or unenforceable by a court of competent jurisdiction, (a) such provision will be deemed to be severable from the remainder of the Hanna Agreements and will not cause the invalidity or unenforceability of the remainder of the Hanna Agreements in such jurisdiction and (b) the entire Agreement will remain enforceable in every other jurisdiction.
13. NO IMPLIED WAIVERS
The failure of either party at any time to require performance by the other party of any provision hereof will not affect in any way the right to require such performance at any later time nor will the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of such provision.
14. ATTORNEYS' FEES
If any legal proceeding is brought for the enforcement of the Hanna Agreements, or because of an alleged breach, default or misrepresentation in connection with any provision of the Hanna Agreements or other dispute concerning the Hanna Agreements, the successful or prevailing party will be entitled to recover reasonable attorneys' fees and other costs incurred in that proceeding, in addition to any other remedies at law.
15. SECTION REFERENCES
Any reference in the Hanna Agreements to a section or subsection will be deemed to include a reference to any subsidiary sections thereof whenever the context requires.
The captions of the sections, subsections, and subsidiary sections of this Agreement are included for reference purposes only and are not intended to be a part of the Agreement or in any way to define, limit, or describe the scope or intent of the particular provision to which they refer.
Masculine, feminine, and neuter terms will be interchangeable (and will include a corporation, a partnership, or another entity), and will be singular and plural, where context makes a change of gender or number appropriate.
18. GOVERNING LAW
The Hanna Agreements will in all respects (including, but not limited to, all matters of interpretation, validity, performance, and the consequences of breach) be construed, governed, and enforced in accordance with the internal laws (excluding all conflicts of laws rules) of the State of Rhode Island, as from time to time amended and in effect, and any applicable federal laws of the United States of America, as from time to time amended and in effect. Each party hereby consents to the exclusive jurisdiction of the state courts of the State of Rhode Island, and the United States District Court for the such district, in all matters arising out of the Hanna Agreements. Each party consents to service of process by certified mail, return receipt requested at the U.S. Address. Any suits, actions, or other legal proceedings arising hereunder will be brought only in the Federal or State courts located in the State of Rhode Island. Each of the parties hereby consents to the personal jurisdiction of each such court in any suit, action or proceeding and waives any objection which it may have to the personal jurisdiction or venue of such suit, action or proceeding in such court.