GENERAL TERMS AND CONDITIONS FOR THE SALE OF GOODS
1. Applicability.
(a) These terms and conditions of sale (these “Terms”) are the only terms that govern the sale of the goods (“Goods”) by Kjolhede Corporation, dba Laboratory Equipment Company, a California corporation (“Seller”) to the buyer named on the Purchase Order (as defined below) (“Buyer”). Collectively, Buyer and Seller are referred to as the “Parties” and individually as “Party.”
(b) The accompanying, purchase order, quotation, or order confirmation (the “Purchase Order”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement supersedes any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Seller expressly rejects Buyer’s general terms and conditions of purchase, and fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions or serve to modify or amend these Terms. Acceptance of the Purchase Order by Buyer is a prerequisite to the purchase of the Goods and shall operate as an acceptance of these Terms which are expressly incorporated into the Purchase Order. Purchase Orders must include all items and services being purchased as priced on the corresponding Seller quote. Each equipment piece and line item should be listed individually by part number, quantity, Seller price, and extended value as quoted.
2. Delivery.
(a) The goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of the Goods. Delivery dates given by Seller are estimates only and are subject to shipping variations and requirements. Delivery dates cannot be rescheduled unless Seller agrees in writing. Seller shall not be liable for any delays, loss, or damage in transit. Freight charges are estimates and will be finalized on the applicable invoice. Liftgate, white-glove delivery, and other special delivery services must be specifically indicated on the Purchase Order and may incur additional fees based on actual job site conditions and delivery requirements.
(b) Orders are processed for immediate shipment unless stated otherwise on the Purchase Order. Delayed delivery dates must be approved by Seller and noted on the Purchase Order. The Purchase Order must specify accurate shipping information, including ship-to addresses and contact details for the name, email, and phone number of the point of contact. Incomplete information may result in deliver delays and additional charges. Any refused or held shipments will result in Buyer being responsible for any and all additional storage and delivery fees. Unless otherwise agreed in writing by the Parties in the Purchase Order, Seller shall deliver the Goods to Seller’s warehouse facility (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods within two (2) days of Seller’s written notice that the Goods have been delivered to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point. Buyer is responsible for fees associated with not taking timely delivery of the Goods, such as storage fees.
(c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods 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.
3. Returns.
All equipment returns require Seller’s prior written approval. Any approved returns require that equipment be in new condition with original packaging. Seller may refuse returns of equipment in its sole discretion, including without limitation any used or damaged equipment. Accepted returns may incur a restocking fee of up to 30% of the cost of the equipment. Buyer shall be responsible for any restocking fees, freight costs, and any other fees or costs associated with the return of equipment approved by Seller. Custom products may not be returned.
4. Title and Risk of Loss.
Title and risk of loss pass to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, 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 Goods, 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 California Uniform Commercial Code.
5. Amendment and Modification.
Except for Section 2(b), these Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each Party.
6. Inspection.
(a) Buyer shall inspect the Goods upon delivery and note any visible damage in writing on the bill of lading, and report all damage or discrepancies to Seller within 24 hours of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods (as defined below) during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in the Purchase Order; (ii) product’s label or packaging incorrectly identifies its contents; or (iii) product is visibly damaged upon delivery.
(b) If Buyer timely notifies Seller of any Nonconforming Goods (within 24 hours of receipt), Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable third-party shipping and handling expenses actually incurred and paid by Buyer in connection therewith. Buyer shall ship, at Seller’s expense and risk of loss (if notified within 24 hours of receipt), the Nonconforming Goods to Seller’s facility as directed by Seller. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Seller’s expense and risk of loss (if notified within 24 hours of receipt), the replaced Goods to the Delivery Point.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 6(b) are Buyer’s exclusive remedies for Nonconforming Goods. Except as provided under Section 6(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
7. Price.
(a) Buyer shall purchase the Goods from Seller at the prices (the “Prices”) set forth in Seller’s published price list in force as of the date of the Purchase Order, upon confirmation by Laboratory Equipment Company of the price listed on the purchase order.
(b) All Prices are exclusive of all sales, use, delivery, services 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. The Prices exclude transportation and insurance costs which are the responsibility of the Buyer.
(c) In the event that any tariffs, duties, or similar charges are imposed on the importation of the Goods after the issuance of a quotation, such charges shall be the responsibility of the Buyer and Seller reserves the right to apply a surcharge to cover these additional costs. This surcharge will be calculated as a percentage of the total order value and will be communicated to the Buyer prior to shipment.
8. Payment Terms.
(a) Buyer shall pay Seller all invoiced amounts due within the payment terms listed on the Order Confirmation by Laboratory Equipment Company, in cash before order is shipped should no terms be listed, or, if no such due in advance term is listed, on the date as shown on the Seller's invoice. All payments hereunder shall be in US dollars. Seller reserves the right to require pre-payment in its sole discretion.
(b) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder. 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. Credit card payments are subject to a 3% fee. Delays caused by Buyer-related issues, such as missing tax documentation, do not warrant payment term extensions.
9.WARRANTIES DISCLAIMER.
THE WARRANTIES FOR THE GOODS ARE THOSE WARRANTIES LISTED ON THE PURCHASE ORDER FOR THE APPLICABLE GOODS, OR PROVIDED BY THE MANUFACTURER AS SET FORTH ON SUCH MANUFACTURER’S WEBSITE OR IN THE PRODUCT WARRANTY MATERIALS FOR THE APPLICABLE GOODS. EXCEPT FOR THE EXPRESS WARRANTIES LISTED ON THE APPLICABLE PURCHASE ODER, THE SELLER MAKES NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO THE GOODS.
10. Limitation of Liability
(a) IN NO EVENT SHALL SELLER OR ANY OF ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
(b) SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER PURSUANT TO THIS AGREEMENT FOR SUCH ORDER.
11. Compliance with Law.
Buyer shall at all times comply with all laws applicable to the operation of its business, this Agreement, Buyer’s performance of its obligations hereunder, and Buyer’s use of the Goods. Without limiting the generality of the foregoing, Buyer shall (a) at its own expense, maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to the purchase or use of the Goods and (b) not engage in any activity or transaction involving the Goods, by way of shipment, use, or otherwise, that violates any law. If Buyer transfers, by any means any commodity or technical data acquired from Seller, Buyer shall comply with all applicable export control laws, rules or regulations, including, without limitation, the U.S. Export Administration Regulations.
12. Termination.
In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (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.
13. Waiver.
No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement by Seller operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder by Seller precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege by Seller.
14. 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 this Agreement is confidential, solely for the use of performing this Agreement 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.
15. Force Majeure.
Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) control, including, the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake, epidemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) order or action by any governmental authority or requirements of law; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other events beyond the control of the Impacted Party.
16. Assignment.
Buyer’s rights, interests, or obligations hereunder may not be assigned, transferred, or delegated by Buyer 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 this Agreement. Seller may assign or transfer its rights, interests, or obligations hereunder without the consent of Buyer.
17. Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement 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.
18. No Third-Party Beneficiaries.
This Agreement benefits solely the Parties to this Agreement. Nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
19. Governing Law; Jurisdiction.
This Agreement is governed by, and construed in accordance with the laws of the State of California without giving effect to any conflict of laws provisions thereof. All legal proceedings shall be instituted in the state or federal courts located in Orange County, California. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts.
20. Notices.
All notices shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order or to such other address for either party as that party may designate by written notice. All notices must be delivered by nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested).
21. Severability.
If any term or provision of this Agreement is determined to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
