1. Acceptance Of Orders/Terms
All orders are subject to acceptance by aqua-tools, Incorporated ("aqua-tools") at its office located 50 Milk Street, 16th floor, Boston MA 02109 in the State of Massachusetts, USA. aqua-tools reserves the right to reject any order. Possession of a price list does not constitute an offer to sell. Acceptance of any order by aqua-tools is expressly conditioned on Customer's assent to the terms and conditions set forth herein ("Terms") and the waiver by Customer of any terms and conditions contained in any order form, confirmation, or any other communication of Customer, whether previously or hereafter delivered to aqua-tools, which either add to, differ from, modify, conflict with or are otherwise inconsistent with any term or condition herein. aqua-tools hereby gives notice of its objection to any additional or different terms or conditions in any such order form, confirmation or communication. Customer's failure to object in writing to these Terms prior to the earlier of Customer's acceptance of the products ordered or fifteen (15) days after delivery thereof to Customer will constitute agreement by Customer to these Terms.
2. Product Changes
aqua-tools reserves the right to discontinue the manufacture or sale of any product at any time or to alter, modify or redesign its products.
All prices are subject to change without notice. Should any governmental action or request prevent aqua-tools from implementing any price or continuing any price already in effect, aqua-tools may at its option cancel Customer's order or any part thereof.
All federal, state or local sales, use or other taxes, and all duties, import fees or other assessments imposed on materials sold hereunder, or on the manufacture, sale or delivery thereof, shall be for Customer's account.
5. Credit Approval
Customer credit approval is required prior to any shipment. If aqua-tools determines at any fines that Customer's financial condition does not justify the extension of credit to Customer, then aqua-tools may at its option require cash payments in advance or other satisfactory security prior to delivery.
6. Cancellation/Change Orders
Orders for standard products may only be revised or cancelled by Customer prior to the date of loading at the place of shipment, and only with aqua-tools’ prior consent. Orders for nonstandard or custom products may only be revised or cancelled by Customer prior to the commencement of production, and only with aqua-tools’ prior consent. Any product which aqua-tools has the capability of producing but does not inventory, or does not have the capability of producing is considered a nonstandard or custom product.
7. Packaging/Shipping/Risk of Loss
Unless otherwise agreed by aqua-tools in writing (i) aqua-tools shall select the method of shipment, (ii) aqua-tools shall skip materials FOB (aqua-tools’ point of shipment), and (iii) costs for special packaging and/or handling requested by Customer shall be the responsibility of Customer. In the event of any general freight increase or any governmental ruling or regulation that results in increased freight costs, such additional costs shall be for Customer's account. Title to, and the risk of loss, damage or shortage of, such materials shall pass to Customer upon delivery to the carrier regardless of notice to Customer. aqua-tools assumes no responsibility for insuring shipments unless specifically agreed to in writing by aqua-tools, in which case the cost of insurance shall be for Customer's account.
Quoted shipping and/or delivery dates are based on estimates at the time of quotation. aqua-tools shall use reasonable commercial efforts to meet such shipping and/or delivery dates, but aqua-tools shall not be liable for any direct or indirect costs or damages, including without limitation incidental or consequential damages, resulting from late deliveries. For orders with indefinite delivery dates, aqua-tools shall have the right to manufacture or procure the materials covered thereby and hold such materials for Customer's account pending receipt of definite shipping instructions. Except as expressly provided otherwise herein, Customer agrees to purchase and pay for all material ordered.
9. Claims for Loss, Damage or Shortage
Upon delivery, shipments must be inspected by Customer for damage, loss or shortage prior to acceptance from the carrier. If damage, loss or shortage exists with respect to any shipment and it is not concealed, Customer shall secure a notation of such damage, loss or shortage from the carrier on the freight bill or delivery receipt. If damage, loss or shortage is concealed, Customer must notify the carrier within 15 days, hold the merchandise for its inspection and secure a signed report from the carrier acknowledging the damage, loss or shortage. No claims for damage, loss or shortage will be allowed unless they are accompanied by an inspection report or signed delivery receipt noting such damage, loss or shortage signed by a representative of the carrier and forwarded to aqua-tools within thirty (30) days of the invoice date. Any claims for damage, loss or shortage should also be filed by Customer with the carrier in writing immediately upon receipt of the materials. In no event shall aqua-tools be liable for damage or loss to a shipment caused by a carrier.
All invoices, whether partial or in full, shall be due and payable in full by Customer net thirty (30) days from the date of shipment unless otherwise agreed to in writing by aqua-tools. All past due, unpaid balances will bear a service charge of the lesser of two percent (2 %) per month or the maximum interest rate permitted by applicable law. If Customer (i) becomes insolvent, files or has filed against it a petition in bankruptcy, makes any assignment for the benefit of creditors, or has a receiver or trustee appointed for it or its property, (ii) takes action to liquidate or otherwise cease doing business as a going concern, (iii) undergoes a change in ownership, (iv) fails to provide adequate assurance or security for credit extended, or (v) takes any other action that aqua-tools determines in its sole discretion adversely impacts the conditions under which credit was extended, then all amounts outstanding from Customer hereunder shall at aqua-tools’ option become immediately due and payable.
ALL PAYMENTS, WHETHER UNDER THE STANDARD PAYMENT TERMS OR OTHERWISE, SHALL BE CONSIDERED RECEIVED BY AQUA-TOOLS AS FOLLOWS: (A) FOR PAYMENTS BY CHECK, WHEN THE CHECK IS RECEIVED AT AQUA-TOOLS’ DESIGNATED PAYMENT LOCATION, AND (B) FOR PAYMENTS BY ELECTRONIC FUNDS TRANSFER, THE BUSINESS DAY IMMEDIATELY FOLLOWING THE DAY ON WHICH THE FUNDS ARE IMMEDIATELY AVAILABLE TO AQUA-TOOLS.
Credit card payments are subject to acceptance by Company and limited to payments of twenty-five thousand United States Dollars $ 25,000.00 or less.
Customer shall pay all undisputed invoices regardless of any dispute that may exist as to other delivered or undelivered goods. With respect to any disputed invoice, Customer shall pay all amounts not in dispute. Customer expressly waives the right to assert any offset or counterclaim with respect to amounts due under any invoice issued by aqua-tools hereunder.
11. Returned Materials
Material may only be returned with the prior approval of aqua-tools. Material returned without such approval will not be accepted and such approval may be conditioned upon Customer paying a restocking charge of up to Twenty-Five (25%) and freight costs of returned material (and out-freight if applicable). All returned materials must arrive at the point of return designated by aqua-tools in saleable condition, as determined by aqua-tools' Quality Management Department before any credit will be issued.
If a shipping error occurs due to aqua-tools’ error, aqua-tools will pay freight both ways for return/exchange of Products. If an ordering facility error occurs, the ordering facility will pay return freight.”
12. WARRANTY/LIMITATION OF LIABILITY
EXCEPT FOR PRODUCTS FOR WHICH AQUA-TOOLS HAS ESTABLISHED A SPECIFIC WRITTEN WARRANTY, THE GOODS DELIVERED HEREUNDER ARE SOLD BY AQUA-TOOLS WITHOUT ANY GUARANTY AND/OR WARRANTY, ORAL OR WRITTEN (WHETHER OR NOT SUCH GOODS REMAIN IN THE FORM IN WHICH THEY ARE ORIGINALLY DELIVERED TO CUSTOMER OR ARE FABRICATED BY CUSTOMER OR ANY OTHER PARTY TO PRODUCE A FINISHED PRODUCT). THE PRODUCT-SPECIFIC WRITTEN WARRANTIES REFERENCED ABOVE AND HEREBY INCORPORATED HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, ORAL OR WRITTEN, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL AQUA-TOOLS BE RESPONSIBLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY EXPENSE FOR REMOVAL OR REINSTALLATION RESULTING FROM ANY DEFECT, INCLUDING ANY DIMENSIONAL DEFECT INVOLVING NONSTANDARD PRODUCTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR OF ANY EXPRESS OR IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER. THE WARRANTY PROVIDED BY AQUA-TOOLS GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. NO FIELD REPRESENTATIVE, DISTRIBUTOR OR DEALER OF AQUA-TOOLS IS AUTHORIZED TO MAKE ANY CHANGE OR MODIFICATION TO THESE WARRANTIES.
Product Warranty for sale to Government Entities
If the Customer is a government entity such that the sale of the Products to the Customer is governed by the Federal Acquisition Regulation (FAR), then notwithstanding anything to the contrary in this Section 11, the warranty of the Products shall be governed by the following provisions, which are incorporated by reference to these Terms:
FAR 52.212-4 (o) Warranty: The Contractor warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this contract. In the event that the terms of the contractor’s standard commercial warranty conflict with the warranty terms contained in this clause, the terms of this clause will govern this contract, unless some other resolution is specified in the award document.
13. REMEDIES FOR NON-WARRANTY CLAIMS
THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER AND THE SOLE AND EXCLUSIVE OBLIGATION OF AQUA-TOOLS IN CONNECTION WITH CLAIMS RELATING TO MANUFACTURING DEFECTS ARE SET FORTH IN SECTION 12. THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER AND THE SOLE AND EXCLUSIVE OBLIGATION OF AQUA-TOOLS FOR ANY BREACH OF CONTRACT CLAIM THAT MATERIALS DELIVERED DO NOT OTHERWISE CONFORM TO THE ACCEPTED ORDER SHALL BE EITHER THE RETURN OF CONSIDERATION PAID BY CUSTOMER TO AQUA-TOOLS RELATED TO THE BREACH, OR UPON AQUA-TOOLS’ ELECTION, THE DELIVERY OF CONFORMING PRODUCTS TO CUSTOMER. WITH RESPECT TO AQUA-TOOLS’ NONCOMPLIANCE WITH ANY OTHER OBLIGATION OF AQUA-TOOLS HEREUNDER, THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER AND THE SOLE AND EXCLUSIVE OBLIGATION OF AQUA-TOOLS WILL BE AS AQUA-TOOLS IN ITS DISCRETION WILL DETERMINE AS FOLLOWS: (I) AQUA-TOOLS MAY ELECT TO CURE SUCH NONCOMPLIANCE WITHIN A REASONABLE PERIOD OF TIME, OR (2) IF AQUA-TOOLS FAILS TO CURE SUCH NONCOMPLIANCE, CUSTOMER MAY RECOVER AN EQUITABLE AMOUNT NOT TO EXCEED SUCH CHARGES AS WERE PREVIOUSLY PAID TO AQUA-TOOLS BY CUSTOMER HEREUNDER. CUSTOMER WAIVES ALL OTHER REMEDIES, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE REMEDIES OF SPECIFIC PERFORMANCE AND REPLEVIN. ANY ACTION BROUGHT BY CUSTOMER IN CONNECTION WITH AQUA-TOOLS' PERFORMANCE HEREUNDER MUST BE COMMENCED WITHIN SIX (6) MONTHS AFTER SUCH CAUSE OF ACTION ACCRUES OR IT WILL BE DEEMED WAIVED. AQUA-TOOLS' LIABILITY TO CUSTOMER, REGARDLESS OF WHETHER SUCH LIABILITY ARISES IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, SHALL IN NO EVENT EXCEED AMOUNTS PAID BY CUSTOMER TO AQUA-TOOLS FOR THE PRODUCTS INVOLVED, AND CUSTOMER RELEASES AQUA-TOOLS FROM ALL CLAIMS AND LIABILITIES IN EXCESS OF THIS LIMITATION. IN NO EVENT SHALL AQUA-TOOLS BE RESPONSIBLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES OF ANY KIND.
14. Excused Performance
aqua-tools shall not be liable for nor be deemed to be in default of these Terms on account of any failure to perform its obligations or attempt to cure any breach thereof if aqua-tools has been delayed or prevented from doing so by any cause or condition beyond aqua-tools' reasonable control. If aqua-tools determines that its ability to supply the total demand for the products, or obtain any or a sufficient quantity of any material used directly or indirectly in the manufacture of the products, is hindered, limited or made impracticable, aqua-tools may allocate its available supply of the products or such material (without obligation to require other supplies of any such products or material) among itself and its customers as aqua-tools determines in its sole discretion without liability for any failure of performance which may result there from. Delivery suspended or not made by reason of this action shall be cancelled without liability, but these Terms shall otherwise remain unaffected.
15. Change In Terms And Conditions Of Sale
The terms and conditions contained herein constitute the entire agreement between aqua-tools and Customer and supersede any and all prior representations, agreements or understandings, whether oral or written, relative to the materials delivered hereunder. No course of dealing or usage of trade shall be relevant to supplement or explain any of these terms or conditions. No modification of these terms and conditions shall be effective unless made in writing and executed by aqua-tools.
This agreement shall not be assigned by Customer without the prior written consent of aqua-tools, and any assignment made without such consent shall be null and void. This agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns. This agreement shall be governed by and construed in accordance with the laws of the State of Massachusetts, without giving effect to its conflicts of law provisions. The courts located in Massachusetts shall have exclusive jurisdiction of all matters relating to or arising out of any sale of materials by aqua-tools to Customer hereunder, and Customer hereby consents to the jurisdiction of such courts.
17. Force Majeure
Neither Party shall be liable for any delay or failure to perform its obligations hereunder as a result of any Force Majeure Event; provided, however, that a Force Majeure event shall not relieve Customer’s obligations to pay amounts which accrued prior to such Force Majeure Event for which aqua-tools invoices the Customer within a reasonable time frame after occurrence of a Force Majeure Event. Each Party shall notify the other within seventy-two hours of the occurrence of any Force Majeure which affects its ability to perform its obligations hereunder. If the Force Majeure Event lasts for more than six (6) months than either party shall have the right to cancel the Purchase Order.
The limited warranty set forth above shall not be deemed to cover conditions which would otherwise be deemed to be Defects arising out of (i) wear and tear, willful or negligent damage to the Products by a party other than Company, abnormal or unauthorized use of the Products, mishandling of the Products, damage to the Products which occurs during shipping or storage, damage from Force Majeure Events, or failure to comply with Company’s written instructions regarding use of the Products; (ii) Customer’s use, installation, or integration of the Products with anything other than Customer Products; (iii) any attempt by Customer to install, re-install, move, the Products, except in accordance with the Company’s written instructions; (iv) damage by third parties not in privity with or under control of Company; (v) Customer’s storage of the Products with an inadequate manner; (vi) use of Products, that, according to documentation accompanying the Products, are intended for research use only, for any other purpose, which includes but is not limited to, unauthorized commercial uses, in vitro diagnostic uses, ex vivo or in vivo therapeutic uses or any type of consumption by or application to humans or animals; an use of the Products beyond the shelf life or expiration date of the Product as set forth in the applicable published specifications or labels of such Products.