Terms and Conditions
1. Sale and Purchase
These terms and conditions (“Terms”) shall apply in the absence of a signed sales agreement between Seller and Buyer. Except for such signed sales agreement, there shall be no force or effect to any different or additional terms of any communication, purchase order, confirmation, or similar form, even if in writing and signed by the parties before or after the date hereof. Subject to the unqualified acceptance of these Terms by Buyer, Seller will use reasonable commercial efforts to sell to Buyer and Buyer will purchase from Seller the Seller’s Products in the quantities specified in the quote sent to Buyer (“Orders”). Provision of any Product to or on behalf of Buyer is conditioned on, and Buyer’s order or taking delivery of or otherwise accepting, using, or paying for any Product shall constitute, Buyer’s unqualified assent to and acceptance of these Terms to the exclusion of all other terms. If these Terms are considered an offer, acceptance is expressly limited to these Terms. The Orders and these Terms may be referred to collectively as the “Agreement.”
Quotations are only valid in writing and for 30 days from the date of the quotation. All quotations are subject to change or withdrawal without prior notice to Buyer. Seller may refuse Orders and has no obligation to supply Products or Seller’s Services unless Seller issues an order acknowledgement or upon the shipment of Products or commencement of Services.
3. Payment and Delivery
Prices are quoted in U.S. Dollars in the United States and are subject to change without notice. Buyer shall pay to Seller the prices specified in the quote provided. All payments due hereunder to Seller shall be paid to Seller in US dollars and paid in advance of delivery. Product prices do not include transportation charges, costs of compliance with export and import controls and regulations, insurance premiums, or sales, use, privilege, excise or any other tax, duty, tariff or assessment that may arise from the sale of the Products pursuant to this Agreement. In the event Seller becomes liable to pay or bear the burden of any such aforementioned costs, the amount shall be added to the purchase price of the Products and shall be paid for by Buyer. All applicable costs charged to Buyer shall be listed as a separate line item on Seller’s invoice. Products shall be shipped ex-works Seller’s shipping point. Products shall be packed, packaged, and crated in accordance with Seller’s standard commercial practices and include all necessary shipping documents. Title to and risk of loss of the Products shall pass to Buyer upon transfer of the products to the common carrier at Seller’s shipping point.
4. Product Use
Products purchased under this Agreement are for Buyer’s own internal use for laboratory research purposes only. Buyer is solely responsible for determining if a Product is fit for a particular purpose and suitable for Buyer’s method of application. Accordingly, and due to the nature and manner of use of Seller’s Products, Seller is not responsible for the results or consequences of use, misuse, or application of its Products. All physical properties, statements, and recommendations are either based on the tests or experience that Seller believes to be reliable, but they are not guaranteed. Buyer has the responsibility to verify the hazards and to conduct any further research necessary to learn the hazards involved in using Products purchased from Seller. Buyer accepts the duty to warn Buyer’s employees, those associated with Buyer, and any auxiliary personnel (such as freight handlers, etc.) of any risks involved in using or handling the Products.
5. Product Designations
Buyer shall not (and shall not permit anyone to) remove any names, designations, or notices from any Product. Buyer shall not reverse-engineer, reproduce, alter, change, modify, or analyze the Product in any way or otherwise perform tests upon the Product to determine the composition, structure, makeup, and/ or configuration of the Product. Buyer shall not file any patent application containing any claim to any subject matter derived about the Product, which includes but is not limited to the field of undercooled metal or metal alloy particles.
Any specified shipment dates are estimates only and do not represent a promise by Seller to deliver Products at a date certain. Seller shall not be liable for any loss, damage, or penalty as a result of any delay in or failure to manufacture, deliver, or otherwise perform hereunder due to any cause beyond Seller’s reasonable control, including, without limitation, unsuccessful reactions, act(s) of Buyer, embargo or other governmental act, regulation or request affecting the conduct of Seller’s business, fire, explosion, accident, theft, vandalism, riot, acts of war, strikes or other labor difficulties, lightning, flood, windstorm, or other acts of God, delay in transportation, or inability to obtain necessary labor, fuel, materials, supplies, or power at prevailing prices. In the event of delays in delivery or performance caused by force majeure or by Buyer, the date of delivery or performance shall be extended by the period of time Seller is actually delayed or as mutually agreed. If any such event continues for longer than 180 days, either Buyer or Seller may terminate the Order and Buyer will pay Seller for work performed and costs incurred towards the Order prior to termination. If Seller should default or not deliver Products for reasons other than the foregoing, Buyer’s sole remedy against Seller is an option to cancel the Order through prior written notice to Seller.
7. Resale, Distribution, and Export Prohibited
Buyer warrants to Seller that Buyer will use the Products directly and as permitted by this Agreement. Buyer further agrees that the Products may not be marketed, distributed, resold, or exported by Buyer for any purpose.
Seller warrants only to Buyer that the Products, when shipped to Buyer by Seller, will conform in all material respects to the applicable specification sheets shipped with the Products. Such warranty does not apply to units that have been damaged, mishandled, mistreated or used or maintained or stored other than in conformity with such specifications and Seller’s instructions. EXCEPT FOR BODILY INJURY, BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE FOREGOING WARRANTY SHALL BE THE REPLACEMENT OF OR (AT SELLER’S OPTION OR IF REPLACEMENT IS IMPRACTICAL) REFUND FOR RETURNED NON-CONFORMING UNITS OF PRODUCT FOR WHICH FULL DOCUMENTATION AND PROOF OF NON-CONFORMITY IS PROVIDED TO SELLER WITHIN ONE (1) MONTH AFTER THE ORIGINAL NON-CONFORMING UNITS (BUT NOT REPLACEMENTS) ARE SHIPPED BY SELLER. EXCEPT FOR THE FOREGOING WARRANTIES, SELLER DOES NOT MAKE (AND HAS NOT AUTHORIZED ANYONE TO MAKE) ANY EXPRESS OR IMPLIED WARRANTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. SELLER HAS NOT AUTHORIZED ANYONE TO MAKE ANY REPRESENTATION OR WARRANTY OTHER THAN AS PROVIDED ABOVE.
9. Limited Liability
EXCEPT FOR BODILY INJURY, SELLER WILL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE AMOUNTS PAID TO SELLER HEREUNDER OR (II) ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR (III) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES. SELLER SHALL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND ITS REASONABLE CONTROL OR FOR ANY ALLOCATION OF PRODUCTS BETWEEN ITS CUSTOMERS IN THE EVENT OF A SHORTAGE.
BUYER WILL ISOLATE THE PRODUCTS FROM HUMANS, ANIMALS AND THE ENVIRONMENT BEFORE, DURING AND AFTER USE AND, NOTWITHSTANDING ANYTHING ELSE, WILL INDEMNIFY SELLER FROM ANY DAMAGES, LIABILITY, COST, EXPENSE OR ATTORNEY FEES IN CONNECTION WITH ANY ALLEGATION OF OR RELATING TO EXPOSURE OF HUMANS, ANIMALS OR THE ENVIRONMENT TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY BODILY INJURY.
11. FCPA and Export Control
Buyer shall comply with the U.S. Foreign Corrupt Practices Act (regarding, among other things, payments to government officials) and all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and not export, or allow the export or re-export of any Product (or any product incorporating such Product) in violation of any such restrictions, laws or regulations (including, without limitation, export or re-export to destinations prohibited either in Country Groups Q, S, W, Y or Z country specified in the then current Supplement No. 1 to Section 770 of the U.S. Export Administration Regulations (or any successor supplement or regulations), or the OFAC regulations found at 31 C.F.R. 500 et seq.)
Seller may assign this Agreement in whole or in part. The failure of either Buyer or Seller to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. This Agreement supersedes all proposals, oral or written, all negotiations, conversations, or discussions between or among parties relating to the subject matter of this Agreement and all past dealing or industry custom. Seller at its sole discretion may update and publish the Terms of this Agreement from time to time, after which such updated Terms shall be the only terms and conditions in force and effect regarding this Agreement. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with the laws of the State of Iowa (without regard to the conflicts of laws provisions thereof or the UN Convention on the International Sale of Goods). Buyer and Seller expressly consent to the jurisdiction and venue of the state and federal courts sitting in the State of Iowa with respect to any dispute arising from this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys fees.