TERMS AND CONDITION OF SALE
1. DEFINITIONS.
For the purpose of this document, the following definitions shall apply: (a)
Zeiss: Carl Zeiss Microscopy, LLC (b) Products: The equipment, parts, accessories and
services to be sold by Zeiss to Buyer and listed on the face hereof; (c) Buyer: The person or
entity listed on the face hereof who is purchasing the Products and such person's or entity's
heirs, executors, administrators, successors by merger or consolidation, or permitted assigns;
(d) Collateral: The Products and their proceeds, together with any additions, accessions,
increases, substitutions and replacements which are subject to Zeiss's security interest
pursuant to this Agreement.
2. ORDER OF PREFERENCE.
These terms and conditions of sale take precedence over and
supersede any additional or different terms and conditions set forth in any purchase order or
other communication of Buyer, to which notice of objection is hereby given by Zeiss. Zeiss's
acceptance of such purchase order is limited to these terms and conditions, which shall be
construed as a counter offer to Buyer, and is expressly made conditional on Buyer's assent to
these terms and conditions. Acceptance by Buyer of the Products or any portion thereof shall
be deemed to constitute Buyer's assent to all of the terms and conditions set forth herein.
Neither Zeiss's commencement of performance nor delivery shall be deemed or construed as
acceptance by Zeiss of Buyer's additional or different terms and conditions.
3. PRICE. --
All prices shown in the Online Shop are only valid for the United States of America!
Unless otherwise indicated on the face hereof, prices shown (i) do not include any
additional fittings or adjustments and (ii) are net prices FOB Thornwood, New York or such
other shipping point as designated by Zeiss, exclusive of delivery and installation charges
and taxes. Buyer shall pay all delivery charges including, without limitation, rigging and
transportation charges, the cost of any transit insurance and the cost of installation. Any tax,
fee, levy, assessment, exaction, imposition or other charge imposed by any local, state or
federal government now or hereafter levied upon the production, sale, use, import, export,
ownership or shipment of the Products, shall be paid for by the Buyer, except for taxes based
on Zeiss's net income.
All applicable state & and local taxes will be applied to all orders. Free shipping/handling only apply to on-line orders . Customers requesting a formal
written quotation are not eligible for free shipping/handling.
4. CLAIMS FOR DAMAGE IN TRANSIT. --
Zeiss's responsibility shall cease upon delivery of
the Products to the carrier FOB, Thornwood, New York or such other shipping point as
designated by Zeiss. Buyer shall examine all Products carefully immediately upon delivery
and before signing any receipt. If the Products are visibly damaged or there is any shortage,
Buyer shall note same on the shipping receipt and send notice of such damage or shortage
to Zeiss within three (3) days of receipt of delivery. Buyer's signature on a receipt without
notation of damage or shortage or Buyer's failure to send notice to Zeiss of damage or
shortage within such three (3) days shall constitute conclusive evidence of Buyer's receipt of
the Products in satisfactory condition. All risk of loss of or damage to the Products is
assumed by Buyer after Zeiss has made delivery of the Products to the carrier for shipment
to Buyer, and Buyers' sold recourse for any loss of or damage to the Products shall be
against the carrier.
5. DELIVERY DATES:
Delivery dates quoted or acknowledged by Zeiss are not an agreement
as to delivery by a specific date but rather are an estimate of the delivery date. Shipments of
Products purchased hereunder are subject to Zeiss's determination of availability. Zeiss shall
use reasonable efforts to meet delivery dates stated in the acknowlegment. However, Zeiss
shall not be liable for any delay in shipment or any failure to ship Products against an
accepted order or for any damages suffered thereby. Buyer's sole remedy in the event that
any delivery of Products is delayed shall be to cancel this Agreement by notice received by
Zeiss prior to shipment. Such remedy may only be exercised in the event that delivery of
Products is delayed more than sixty (60) days beyond the delivery date stated in the
acknowledgement.
6. FAILURE TO TAKE DELIVERY
In the event that Zeiss is ready to ship or has shipped
Products conforming to this Agreement to Buyer in accordance with the delivery terms stated
herein, and Buyer fails to take delivery or delays delivery or notifies Zeiss that delivery will be
delayed or rejected, Zeiss may at its election, treat such as failure delay or notice of delay or
rejection as a repudiation of this Agreement by Buyer and pursue all remedies available to it
at law, including, without limitation, storage of the Products for the account of Buyer at
Buyer's sole cost and expense in which event all risk of loss or damage to the Products shall
be assumed by Buyer and/or cancellation of this Agreement. In the event of cancellation of
this Agreement by Zeiss, Buyer shall be liable to Zeiss for its damages, including loss of
profits and Zeiss's reasonable attorneys' fees, court filing fees and other disbursements
incurred in collecting such damages.
7. FORCE MAJEURE
Zeiss shall not be liable to Buyer for any delay or failure by Zeiss to
perform its obligations hereunder when such delay or failure is directly or indirectly due to
accident (in manufacture or otherwise), fire, flood, seizure, riot, war, embargo, labor
shortages or difficulties, inadequate transportation facilities, shortage of material or supplies
delay or default on the part of Zeiss's suppliers, regulation or order by government authority,
or any other casualty or cause beyond the control of Zeiss. Zeiss may at its option cancel this
Agreement or delay performance hereunder for any period by necessary due to any of the
foregoing, during which time this Agreement shall remain in full force and effect. Zeiss shall
have the further right to allocate its available materials and products between its own uses
and its customers in such manner as Zeiss may consider fair and reasonable. Zeiss shall
have the right to make partial shipments to Buyer and invoice accordingly and Buyer shall be
obligated to pay for such partial shipments when invoiced.
8. ACCEPTANCE
Buyer shall be deemed to have accepted the Products upon the earliest of
(a) delivery to Buyer if installation by Zeiss is not included in the purchase price; or (b)
certification by Zeiss in such form as Zeiss shall prescribe that the Products have been
installed and meet Zeiss's specifications, if installation by Zeiss is included in the purchase
price; or (c) utilization of the Products or any portion thereof by Buyer for any purpose.
9. PAYMENTS
Payment for Products shipped on credit shall be made within thirty (30) days of
the shipment date without any deductions or offsets. Payment terms will be strictly enforced
on all accounts. Amounts past due are subject to a service charge at the maximum rate of
interest permitted by law until paid. Buyer shall pay all of Zeiss's costs and expenses incurred
in the collection of any outstanding amounts, including reasonable collection agency or
attorneys' fees, court filing fees and other disbursements.
10. SECURITY AGREEMENT
This is a security agreement to secure payment of the purchase
price of the Products. Buyer by its signature on the face hereof hereby grants and Zeiss
reserves, a purchase money security interest, for the full amount of the purchase price in the
Collateral. A description of the Collateral appears on the face herof. Buyer hereby authorizes
Zeiss or its assignee to sign any document required to perfect Zeiss's security interest in the
Collateral including, without limitation, financing statements under the Uniform Commercial
Code. Payment in full of the purchase price for the Products shall release the security
interest. At Buyer's expense, the Collateral shall be insured by Buyer in favor of Zeiss against
loss or damage from fire and other casualty. Buyer shall be in default under this security
agreement and Zeiss shall be entitled to enforce all of its rights and remedies including all
rights and remedies of a secured party under the Uniform Commercial Code, if (a) Buyer fails
to insure the Collateral in favor of Zeiss as required by this security agreement; or (b) Buyer
without Zeiss's express prior written consent, sells, leases, disposes of or permits the
Collateral to be encumbered in any way; or (c) Buyer fails to maintain the Collateral in good
order or repair; or (d) Buyer fails to pay Zeiss the purchase price for the Collateral when due.
11. INSOLVENCY
Except as may otherwise be prohibited by law in the event that Buyer
becomes insolvent or unable to pay its debts as they become due, or in the event of any
voluntary or involuntary bankruptcy proceedings by or against Buyer, or appointment of a
receiver or assignment by Buyer for the benefit of its creditors, Zeiss may elect to cancel any
of its obligations hereunder and all obligations of Buyer to Zeiss, whether arising out of this
Agreement or otherwise, shall immediately become due and payable in full.
12. LIMITED WARRANTY
12.1 Zeiss warrants that the Products are free from defects in
material and workmanship. Upon notice of any defect in material and workmanship, Zeiss
shall have the right to inspect the Products and to investigate all claims for the purpose of
determining whether the Products are defective. If Zeiss determines that the Products are
defective and covered by this limited warranty then Zeiss shall, at its option, have the right
either to repair or replace any defective Products. Zeiss's liability and Buyer's exclusive
remedy, for defective Products shall be limited solely to such repair or replacement. No
Products shall be returned to Zeiss without Zeiss's prior written consent.
12.2 The effectiveness of the warranty contained herein shall, with respect to any other particular
defect be conditional upon (i) Buyer's substantiation that the Products have been stored,
maintained and operated in accordance with such instructions as are given by Zeiss to Buyer
and with standard industry practice and have not been damaged as a result of negligence,
improper handling or accident on the part of any person other than Zeiss and (ii) Buyer's
payment of all invoices for the Products or other charges to which Zeiss may be entitled and
(iii) Buyer's exclusive use of persons approved or authorized by Zeiss to effect any repairs to
the Products and (iv) Buyer's substantiation that no modification or alteration of the Products
have been made without the prior written consent of Zeiss. Subject to the foregoing, the
warranty contained herein shall remain in effect for 12 months from the date that the Products
are shipped by Zeiss, unless a different warranty period shall be stated on the face hereof.
12.3 Different warranty terms are available for some product types and are incorporated
herein if noted on the face hereof. Such different warranty terms supersede the terms hereof
only to the extent that they are inconsistent herewith.
12.4 THE WARRANTY CONTAINTED IN THIS SECTION IS IN LIEU OF AN EXCLUDES ALL OTHER WARRANTIES, EXPRESS
OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
BUYER'S SOLE AND EXCLUSIVE REMEDY ON ANY CLAIM OF ANY KIND FOR ANY
LOSS OR DAMAGE ARISING OUT OF OR IN ANY WAY RELATED TO THE
MANUFACTURE , SALE, DELIVERY OR USE OF THE PRODUCTS SHALL BE AS
PROVIDED HEREIN AND SHALL IN NO CASE EXCEED THE LESSER OF THE COST OF
REPAIR OR REPLACEMENT. ZEISS SHALL NOT BE LIABLE IN CONTRACT OR IN TORT
TO BUYER OR ANY OTHER PERSON FOR ANY SPECIAL, INCIDENTAL OR
CONSEQUETIAL DAMAGES WITH RESPECT TO ZEISS'S OBLIGATIONS HEREUNDER,
SUCH AS BUT NOT LIMITED TO, DAMAGE TO, LOSS OF, OR LOSS OF THE USE OF
OTHER PROPERTY OR EQUIPMENT, LOSS OF PROFITS OR REVENUES OR CLAIMS
OF BUYER OR OF CUSTOMERS OF BUYER FOR LOSSES OF ANY KIND.
12.5 This warranty is non-transferrable and non-assignable and may be enforced only by Buyer.
12.6 Zeiss gives no warranty whatsoever with respect to parts with a limited technical lifetime such
as data discs and cassettes. Components or products produced by other manufacturers are
warranted by Zeiss only to the extent that such components are warranted by the
manufacturer supplying such components to Zeiss and to the extent that such warranties
may be assigned by Zeiss to Buyer. If Zeiss's software is included in this Agreement, Zeiss
warrants that its software, which is designed for use with a particular hardware product,
where properly installed, will not fail to execute its programming instructions due to defects in
materials and workmanship. If Zeiss receives notice of a defect during the applicable
warranty period, Zeiss will repair or replace software media which do not execute
programming instructions due to such defect. Zeiss does not warrant that the operation of the
software will be uninterrupted or error-free.
13. RETURN OF MERCHANDISE
Zeiss shall not accept any return of Products unless
previously authorized by Zeiss in writing, whether under warranty or otherwise. Any returns
other than under warranty will be subject to a reasonable restocking charge.
14. PATENT INDEMNITY
Zeiss shall defend or settle any claim made or any suit or proceeding
brought against Buyer which is based on an allegation that any Products infringe a third-party
patent, provided that Zeiss is timely notified of any such claim, suit or proceeding and is
given, by Buyer, all necessary information, cooperation and the sole authority to defend or
settle the same at Zeiss's expense. In the event that the Products are in such suit or
proceeding, held to infringe any patent and the use of such Products is enjoined or in the
case of a settlement of such suite or proceeding Zeiss shall have the option at its own
expense, (I) to procure for Buyer the right to continue the use of the Products or (ii) to modify
the same so that the Products become non-infringing or (iii) refund the depreciated value of
the Products and accept return therof. Zeiss shall have no liability for claim of infringement
resulting from compliance by Zeiss with Buyer's designs, specifications or instructions or in
the event of modification of the Products buy Buyer, or use by Buyer of the Products other
than as specified in Zeiss's publications or use by Buyer of the Products together with
products not supplied by Zeiss. In no event shall Zeiss have any liability for any infringement
in excess of the purchase price of the infringing Products.
15. NOTICES All
notices, consents, requests, instructions, approvals and other communications
hereunder shall be in writing and given by personal delivery or by certified mail return receipt
requested, or by express delivery service to the address of Buyer or Zeiss as shown on the
face hereof or to such other address as any party hereto may, from time to time, designate in
writing. Notices shall be deemed to be effective on the date personally delivered or three (3)
days after deposited in the United States mail as certified mail or one day deposited with an
express delivery service, as the case may be.
16. APPLICABLE LAW
This Agreement shall be governed by and construed under the laws of
the State of New York applicable to contracts made and to be performed wholly within the
State of New York.
17. JURISDICTION AND VENUE
Buyer hereby submits to the jurisdiction of the New York
courts for the resolution of any dispute arising directly or indirectly from this Agreement. The
exclusive venue of any action, proceeding or dispute resolution procedure arising directly or
indirectly from this Agreement shall be Westchester County, New York. Buyer waives any
objection to venue in Westchester County, New York and waives any right to assert that
Westchester County, New York is an inconvenient forum.
18. ENTIRE AGREEMENT
This writing is intended by the parties as a final expression of their
agreement and as a complete and exclusive statement of its terms. This writing supersedes
any previous or contemporaneous communications, representations or agreements by either
party whether verbal or written. No representations, understanding or agreements have been
relied upon in making this Agreement other than as specifically set forth herein. This
Agreement can only be modified in a writing signed by the parties hereto.
19. NO WAIVER
Failure or delay by Zeiss in seeking enforcement of any term or condition
hereof at one time shall not constitute a waiver of the right to enforce such term or condition
in the future, nor of Zeiss's right to enforce any other term or condition hereof.
20. SEVERABILITY OF PROVISIONS
In the event that any one or more the provisions
contained in this Agreement are determined to be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions shall not in any
way be affected or impaired thereby.
21. ASSIGNMENT
No assignment of rights or transfer of obligations under this Agreement shall
be made by Zeiss or Buyer without the prior written consent of the other party, provided
however that Zeiss may, without the consent of Buyer, assign its rights and transfer its
obligations under this Agreement to any corporation which is a parent, subsidiary or affiliate
of Zeiss.
22. QUOTATIONS
Any quotation issued by Zeiss shall not constitute an offer by Zeiss to sell the
Products to Buyer and Zeiss reserves the right to withdraw or modify any quotation issued by
it at any time without notice to Buyer. Such quotation shall constitute an invitation to Buyer to
submit a purchase order to Zeiss, which purchase order may be accepted (by Zeiss's
issuance of its acknowledgement) or rejected by Zeiss. Any contract for the purchase and
sale of the Products between Zeiss and Buyer may only result from Zeiss's issuance of a
written acknowledgment.