Terms and Conditions of Sale of VACUUBRAND, Inc.
These terms and conditions (these “Terms”) set forth the business terms on which VACUUBRAND, Inc., a Delaware corporation (“Seller”), agrees to sell Products (as defined herein) to the Buyer (as defined herein). These Terms may only be changed by written agreement signed by both parties. The issuance of a purchase order by Buyer for any of Seller’s products or services constitutes Buyer’s acceptance of these Terms.
Definitions: The term “Product(s)” shall refer to the materials, supplies, items and equipment covered by the related order. The term “Contract” shall refer to, collectively, an accepted order and these Terms. Other defined terms have the meanings given to them herein. The term “Buyer(s)” shall refer to the person, institute, company, organization, or corporation making the order in exchange for Product(s).
- Acceptance by VACUUBRAND, Inc.
All orders are subject to credit approval and acceptance by the Seller in Essex, CT. These Terms constitute the sole terms and conditions which govern the sale of the Product(s) covered hereby. This Contract is the sole and complete agreement between Buyer and Seller and supersedes all prior discussions, agreements, or understandings whether stated orally or in writing. No deviating or additional terms shall be binding unless expressly agreed to in writing signed by an authorized representative of Seller. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. Seller may, in its sole discretion and at any time for any reason, change these Terms or any policies or guidelines. The most current terms and conditions are available at www.vacuubrand.com which may contain additional and supplementary terms and conditions, and are hereby incorporated by reference. Buyer is responsible for reviewing these terms and conditions, the online terms, and any applicable changes.
- Shipping Terms
Delivery shall be made Ex Works Essex, CT. Payment terms shall be net 30 days for Buyers with credit approved and established prior to order and if written on face of invoice. All other shipments must be prepaid or paid by credit card. All payments shall be made in U.S. dollars. Products will only be shipped to valid addresses within the United States of America and Canada. Buyer is responsible for any federal, state, local, sales, VAT, GST, or other taxes whether or not those taxes are set forth on the applicable invoice from Seller. Seller may, at its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
- Title and Risk of Loss
Title and risk of loss passes to Buyer upon delivery of the Products. As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Connecticut Uniform Commercial Code.
- Payment Terms
Buyer shall pay all invoiced amounts due to Seller within 30 days of Seller’s invoice. Buyer shall make all payments hereunder by ACH, Wire Transfer, check, or credit card and in U.S. dollars. Past due accounts will be subject to payment of a finance charge on all late payments. Buyer shall pay interest on all late payments at the lesser of the rate of 11/2% per month (18% per annum) or the highest rate permissible under Connecticut law. In the event Buyer’s account is past due, the total amount outstanding shall be payable immediately, and Seller shall have no obligation to deliver any Products or deliveries in process. In such event Seller may demand that all outstanding orders be paid in advance of shipment. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
- Prepaid shipping charges
Buyer is responsible for all shipping, duties, customs, and brokerage fees. At the request of Buyer, Seller may prepay freight charges and include such charges on the invoice. Such prepaid charges, if paid, are an accommodation to the Buyer only, and do not modify the Ex Works Essex, CT delivery term.
- Shipping dates
Shipping dates listed on purchase orders are estimates only, and Seller shall not be liable for non-shipment or delay due to acts of God, strikes, accidents, or any other causes beyond control of Seller, whether or not similar in class or kind to those mentioned. Seller shall not be liable for delays, loss, or damage in transit.
- Inspection and claims
Claims for damage in shipment must be filed in accordance with the delivering carrier’s procedures. Claims for shortages, shipping errors, or any claim that the Products do not conform to the terms of the Contract must be submitted to the Seller in writing within five (5) days of receipt. If Buyer fails to give such notice, the Products shall be deemed in conformance with the Contract terms and accepted by Buyer, and Buyer shall pay for the Products in accordance with the Contract. Buyer waives any right to reject or revoke acceptance after such five (5) day period. All claims must be accompanied by a copy of the packing slip. [If Buyer timely notifies Seller of any nonconforming Products, Seller shall, in its sole discretion, (i) replace such nonconforming Products with conforming Products, or (ii) credit or refund the price for such nonconforming Products. Buyer acknowledges and agrees that the remedies set forth in this Paragraph 7 are Buyer’s exclusive remedies for the delivery of nonconforming Products.
Buyer has no right to return Product(s) purchased hereunder to Seller, and Seller has no obligation to accept any such returns, without Seller’s express prior written authorization, which may be withheld in Seller’s sole discretion. In the event Buyer desires to return a Product or Products, Buyer must obtain Seller’s written authorization within thirty (30) days of shipment. Unless indicated otherwise by Seller, any written authorization given to Buyer will expire within thirty (30) days of issuance. With the exception of those returns specified in Paragraph 13, returns will be accepted only if Product is in new, unused, resalable condition in the original packaging. All Product returns must be accompanied by a completed Health and Safety Declaration regarding potential contamination with hazardous materials due to Buyer’s use of the Product. In the event of a return, Seller shall be entitled to handling charges of 25% of the purchase price of the Product(s) or such greater amount as expended by Seller in connection with such returns.
- Cancellations and Modifications
In the event of cancellation of a purchase order by Buyer, Seller shall be entitled to cancellation charges of 25% of the cancelled order or such greater amount as expended by Seller in connection with such cancellations. Product appearance, catalog numbers, prices, specifications, and technical information are subject to change without notice.
- Deferred orders
Requests by Buyer for changes in a shipping schedule on an order in process are subject in all cases to approval and acceptance by Seller in writing, and will be further subject to revisions in price and/or charges for work already in progress.
- Typographical or printing errors
Any typographical, printing, stenographic, clerical, or other errors are subject to correction by the Seller.
All prices are subject to change without notice. In the event the price of a Product increases from a previously defined price, Seller will so notify Buyer prior to shipment, and Buyer shall have ten (10) days to cancel that part of the purchase order as applies to such Product if the increased price is unacceptable. All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided that Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
- Limited Warranty
Seller warrants to Buyer to the warranty period indicated, by product, at www.vacuubrand.com that its Products are free from defects in materials and workmanship as set forth in applicable operating instructions at the date of shipment to the original Buyer and will conform to the Contract specifications or such other specifications which constitute technical improvements to the Products.* The exclusive remedy of the Buyer in the event of a breach of the foregoing warranty is replacement or repair (at Seller’s option) of any defective Product. No Products shall be returned to Seller for repair or replacement pursuant to this warranty without prior written approval and accompanied by a completed health and safety declaration (as specified in Paragraph 8). All cleaning, decontamination, and shipping costs shall be the sole responsibility of the Buyer together with any damage to the Products that might occur in transit to or from Seller. Under no circumstances does Seller’s responsibility or warranty extend to Products other than those manufactured or distributed by Seller; nor does Seller’s liability extend to any Products, articles or parts which are furnished by Buyer or obtained from other manufacturers or suppliers at Buyer’s request and/or in accordance with Buyer’s specifications. In the event that Seller is unwilling or unable to repair or replace any defective or nonconforming Product due to change in technical standards, technical modifications, unavailability of material or parts, or any other reason, Buyer shall be entitled to a return of the purchase price paid for such Product as its sole and exclusive remedy. Seller assumes no responsibility for the effective performance of any specific scientific application relying on Products supplied under this Contract beyond published Product specifications at the time of sale. Seller assumes no responsibility for conformance with local building codes as they may apply in the installation of Products supplied by the Seller. Seller assumes no responsibility whatsoever for the accuracy of designs, specifications or materials furnished or specified by Buyer.
TO THE EXTENT PERMITTED BY LAW, THE LIMITED WARRANTY SET FORTH ABOVE IS IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND THAT SELLER MAKES NO OTHER WARRANTIES WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. THE BUYER ACKNOWLEDGES THAT IT IS NOT RELYING ON THE SELLER’S SKILL OR JUDGEMENT TO SELECT OR FURNISH GOODS SUITABLE FOR ANY PARTICULAR PURPOSE AND THAT THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE SET FORTH HEREIN. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SELLER BE LIABLE FOR BUYER’S LOSS OF PROFIT OR INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY KIND. THE REMEDIES SET FORTH IN THIS SECTION 13 SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF LIMITED WARRANTY SET FORTH IN THIS SECTION 13.
*All wearing and glass parts, e.g., pistons, seals, diaphragms, valves, are excluded from this warranty.
- Indemnity for nuclear uses
Buyer or lessee agrees to indemnify, defend and hold Seller harmless from any and all liability or damage arising out of the use of the equipment sold or leased hereunder in, on or with any nuclear installation, activity, use, or purpose.
- Indemnity for Products manufactured according to Buyer’s requirements
In the event Seller provides Products in accordance with drawings, models or samples provided by the Buyer, Buyer shall indemnify, defend, and hold harmless the Seller from any liability, cost, or expense suffered by Seller as a result of the violation of any law or regulation or the infringement of any industrial property right or other right of third parties (except as may have been caused by modification by Seller).
- Not for Use in Aircraft
The Products are not intended for use in aircraft of any kind, including airplanes, helicopters, drones, etc., and Buyer shall indemnify, defend, and hold harmless Seller from any liability, cost or expense suffered by Seller as a result of the use of the Products in this manner.
- Notification of Product hazards and recall of Products
Buyer will inform Seller immediately in writing about any events which indicate any hazards connected with the Product. Upon written notice of the Seller about hazards in connection with the Products or unfitness for use of the Products and recall of Products, the Buyer will immediately cease using the Products and will return the Products to the Seller upon Seller’s request. To the extent permitted by law, in the event Seller does not repair Product for any reason, the Buyer, as its sole remedy shall be entitled to compensation equivalent to the current value of the used Product, but in no event more than the purchase price.
- Limitation of Liability
In no event shall Seller be liable to Buyer or any third party for any loss of use, revenue or profit or loss of data or diminution in value, or for any consequential, indirect, incidental, special, exemplary, or punitive damages, whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damages were foreseeable and whether or not Seller has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
In no event shall Seller’s aggregate liability arising out of or related to this Contract, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the total of the amounts paid to Seller for the Products sold hereunder to 100% of the purchase price of the product.
- Compliance with Laws
Buyer shall comply with all applicable laws, regulations, and other legal requirements regarding the export, import, sale, distribution, marketing, and service of the Products and related technology, including without limitation, tax and foreign exchange legislation or regulations. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Contract and these terms and conditions.
- Applicable Law and Submission to Jurisdiction
The validity, performance and construction of this Contract shall be governed by the laws of the state of Connecticut. The parties agree to submit to the personal and exclusive jurisdiction of the courts located in Connecticut for the resolution of all legal disputes arising under the terms of this Contract.
No waiver by Seller of any of the provisions of this Contract is effective unless explicitly set forth in writing and signed by Seller. The failure of Seller to insist upon the performance of any provision of this Contract, or failure to exercise or delay in exercising any right or privilege granted to Seller under this Contract, shall not be construed as waiving any such provision, and the same shall continue in force. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Intellectual Property Rights
As used herein, “Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (i) patents; (ii) trademarks; (iii) internet domain names, whether or not trademarks, registered by any authorized private registrar or any governmental authority, web addresses, web pages, website and URLs; (iv) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programing interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (v) trade secrets, and (vi) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to applicable law.
Buyer acknowledges and agrees that: (i) any and all Seller’s Intellectual Property Rights are the sole and exclusive property of Seller or its licensors; (ii) Buyer shall not acquire any ownership interest in any of Seller’s Intellectual Property Rights under the Contract or these terms and conditions; (iii) any goodwill derived from the use by Buyer of Seller’s Intellectual Property Rights inures to the benefit of Seller or its licensors, as the case may be; (iv) if Buyer acquires any Intellectual Property Rights, rights in or relating to any Products (including any rights in any trademarks, derivative works or patent improvements relating thereto) by operation of law, or otherwise, such rights are deemed and are hereby irrevocably assigned to Seller or its licensors, as the case may be, without further action by either of the parties; and (v) Buyer shall use Seller’s Intellectual Property Rights solely for the purposes of using the Products under this Contract and only in accordance with this Contract and the instructions of Seller.
Buyer shall not (i) take any action that might interfere with any of Seller’s rights in or to Seller’s Intellectual Property Rights, including Seller’s ownership or exercise thereof; (ii) challenge any right, title or interest of Seller in or to Seller’s Intellectual Property Rights; (iii) make any claim or take any action adverse to Seller’s ownership of Seller’s Intellectual Property Rights; (iv) register or apply for registrations, anywhere in the world, for Seller’s trademarks or any other trademark that is similar to Seller’s trademarks or that incorporates Seller’s trademarks; (v) use any mark, anywhere that is confusingly similar to Seller’s trademarks; (vi) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Products or any Seller’s trademarks; (vii) misappropriate any of Seller’s trademarks for use as a domain name without prior written consent from Seller; (viii) or alter, obscure, or remove any Seller’s trademarks, or trademark or copyright notices or any other proprietary rights notices placed on Products, marketing materials or other materials that Seller may provide.
In addition to any remedies that may be provided under these Terms, Seller may terminate the Contract and these Terms with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Contract and such failure continues for 10 days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
- Confidential Information
All non-public, confidential, or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with the Contract is confidential, solely for the use of performing the parties’ obligations hereunder and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party. The confidentiality obligations set forth in this section shall survive termination of the Contract.
Buyer shall not assign any of its rights or delegate any of its obligations under the Contract without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under the Contract.
- Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in this Contract shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- No Third-Party Beneficiaries
The Contract is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice“) shall be in writing and addressed to the parties at the addresses set forth on the face of the invoice or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided under these terms and conditions, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
If any term or provision of these terms and conditions is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these terms and conditions or invalidate or render unenforceable such term or provision in any other jurisdiction.
Last revised: October 30, 2018