This document sets forth the Terms & Conditions of Sale for goods manufactured and/or supplied, and services provided, by the Hach legal entity from which you are ordering (“Hach”) (see ANNEX 1 for details specific to each Hach entity) and sold to the original purchaser thereof (“Buyer”). Unless otherwise specifically stated herein, the term “Hach” includes only the Hach legal entity from which you are ordering and none of its affiliates. Hach operates the Website www.hach.com (“the Website”). Hach is a company registered in Ireland under company number 238594 and with its registered office at Raffeen House, Ringaskiddy, Co. Cork. Hach’s VAT Registration Number is IE8238594G. Unless otherwise specifically stated in a written purchase agreement signed by authorized representatives of Hach and Buyer, these Terms & Conditions of Sale establish the rights, obligations and remedies of Hach and Buyer which apply to any contract for the sale of Hach’s goods and/or services (“Products”).
1. APPLICABLE TERMS & CONDITIONS: These Terms & Conditions of Sale are contained directly and/or by reference in Hach’s offer, order acknowledgment, and invoice documents. The first to occur of the following acts constitutes an acceptance of Hach’s offer and not a counteroffer and creates a contract of sale (“Contract”) in accordance with and incorporating these Terms & Conditions: (i) Buyer’s issuance of a purchase order document against Hach’s offer; (ii) acknowledgement of Buyer’s order by Hach; or (iii) commencement of any performance by Hach pursuant to Buyer’s order. The application of any terms and conditions, general terms of purchase or other terms of the Buyer (whether or not contained in Buyer’s purchase documents (including electronic commerce interfaces)) is hereby expressly excluded and therefore such terms do not become part of the Contract. These Terms & Conditions of Sale also govern any purchase via the Website. They are available electronically on the Website. Buyer should print a copy of these Terms & Conditions for future reference. The following shall apply to the conclusion of a Contract via the Website: The representation of the Products on Hach’s Website does not constitute a legally binding offer. Buyer makes an offer to Hach to buy the Product(s) by clicking on the “Submit” button (or other designated buttons confirming purchase) whereby Buyer also acknowledges the applicability of these Terms & Conditions. Hach will send Buyer an e-mail confirming receipt of Buyer’s order ("Order Confirmation E-mail"). The Order Confirmation E-mail is acknowledgement that Hach has received the order, and does not constitute acceptance of Buyer’s offer, unless Hach expressly accepts the order in its Order Confirmation E-mail. A Contract is only concluded when Hach expressly accepts Buyer’s offer or dispatches the Product(s) to Buyer.
2. CANCELLATION: Buyer may cancel service orders on ninety (90) days’ prior written notice and refunds will be prorated based on the duration of the service plan if such notice is given before the first preventive maintenance visit; no refunds will be made for cancellations thereafter. Inspections and re-instatement fees may apply upon cancellation or expiration of service programs. Hach may cancel all or part of any order prior to delivery without liability if the order includes any Products that Hach determines may not comply with export, safety, local certification, or other applicable compliance requirements.
3. DELIVERY: Delivery will be accomplished according to Incoterms 2010 as follows: (1) CPT named place of destination for shipments within EU and CH; and (2) EXW Hach´s manufacturing site (including applicable export documentation) for shipments outside of EU. Legal title to goods, and to any works products prepared for Buyer in the course of performing services, passes to Buyer only upon full payment of the purchase price, services fee, or other agreed compensation for these goods or services to Hach. At the request of Hach, Buyer will use commercially reasonable efforts and cooperate in order to fulfill at its costs any further requirements for such retention of title being enforceable. Unless otherwise agreed by the parties, vials used for delivery of reagents shall remain Hach´s property, and shall not be considered waste; Buyer shall keep empty vials in a place safe for storage, and shall make them available for pick-up by Hach upon reasonable notice.
4. TIME FOR DELIVERY: Hach will use commercially reasonable efforts to deliver the Products ordered herein within the time specified on the face of the Contract or, if no time is specified, within Hach’s normal lead-time necessary for Hach to deliver the Products sold hereunder. Upon prior agreement with Buyer and for an additional charge, Hach will deliver the Products on an expedited basis. Standard service delivery hours are the local office hours from Monday through Friday, excluding public holidays of the country the relevant Hach legal entity the Buyer is ordering from has its place of business (“Country of Order”).
5. INSPECTION & COSTS: Buyer will promptly inspect and accept any goods delivered pursuant to the Contract after receipt of such goods. In the event the goods do not conform to any applicable specifications, Buyer will promptly notify Hach of such nonconformance in writing. Hach will have a reasonable opportunity to repair or replace the nonconforming goods at its option. Hach will perform any repairs at Hach’s designated factory bench repair location. A Buyer seeking warranty service must contact Hach for instructions on repair location and associated logistics. In the case of nonconforming goods, Hach will cover shipping costs from / to the original purchasing address in the EU when shipment is arranged with Hach’s preferred transportation vendor; all other forms of shipment, shipments and/or repairs outside the EU, and de-installation and installation costs are at Buyer’s expense. Buyer will be deemed to have accepted any goods delivered under the Contract and to have waived any such nonconformance in the event such a written notification is not received by Hach within thirty (30) days of delivery. This does not apply to any hidden defects/nonconformances of the goods; Buyer must notify Hach in writing immediately upon Buyer’s discovery of same.
6. PRICES & ORDER SIZES: All prices are in EURO (except as stated on the order acknowledgement for shipments outside the EU) and are based on delivery as stated above. Prices do not include any charges for services such as insurance; brokerage fees; sales, use, inventory or excise taxes; import or export duties; special financing fees; VAT, income or royalty taxes; consular fees; special permits or licenses; or other charges imposed upon the production, sale, distribution, or delivery of Products. Buyer will either pay any and all such charges or provide Hach with acceptable exemption certificates, which obligation survives performance under the Contract. Hach reserves the right to establish minimum order sizes and will advise Buyer accordingly. If Buyer requests the supply of additional Products or provision of additional services, as against the amounts or types of Products or services agreed in the Contract, or where substantial changes to the Products or services are requested, Hach shall be entitled to additional fair and appropriate compensation; in this event, provisions in the Contract regarding fixed prices shall not apply.
7. PAYMENTS: All payments must be made in the currency of the Country of Order unless otherwise agreed between the parties in writing. For Internet orders, the purchase price is due at the time and manner set forth at the Website. Unless otherwise agreed between the parties, invoices for all other orders are due and payable NET 30 DAYS from date of the invoice without regard to delays for inspection or transportation, with payments to be made by check to Hach at the above address or by wire transfer to the account stated on the front of Hach’s invoice, or for customers with no established credit, Hach may require cash or credit card payment in advance of delivery.
8. WIRE TRANSFERS: Buyer and Hach both recognize that there is a risk of wire fraud when individuals impersonating a business demand immediate payment under new wire transfer instructions. To avoid this risk, Buyer must verbally confirm any new or changed wire transfer instructions by calling Hach at the appropriate number listed in ANNEX 1 and speaking with Hach’s Finance (Receivables) Department before transferring any monies using the new wire instructions. Both parties agree that they will not institute wire transfer instruction changes and require immediate payment under the new instructions but will instead provide a ten (10) day grace period to verify any wire transfer instruction changes before any outstanding payments are due using the new instructions. Buyer’s payment to any new account other than one that Hach has verbally confirmed using the above procedure will not discharge Buyer’s payment obligation to Hach.
9. DEFAULT OF PAYMENT: In the event payments are not made within 30 days upon receipt of the invoice, Hach may, in addition to all other remedies provided at law, either: (a) declare Buyer’s performance in breach and terminate the Contract for default; (b) withhold future shipments until delinquent payments are made; (c) deliver future shipments on a cash-with-order or cash-in-advance basis even after the delinquency is cured; (d) charge interest on the delinquency at a rate of 1-1/2% per month or the maximum rate permitted by law, if lower, for each month or part thereof of delinquency in payment plus applicable storage charges and/or inventory carrying charges; (e) demand a lump sum payment at the rate provided by law (f) repossess the Products for which payment has not been made; (g) recover all costs of collection including reasonable attorney’s fees exceeding the lump sum payment pursuant to (e); or (h) combine any of the above rights and remedies as is practicable and permitted by law. Buyer is prohibited from setting off any and all monies owed under the Contract from any other sums, whether liquidated or not, that are or may be due Buyer, which arise out of a different transaction with Hach or any of its affiliates. Should Buyer’s financial responsibility become unsatisfactory to Hach in its reasonable discretion, Hach may require cash payment or other security. If Buyer fails to meet these requirements, Hach may treat such failure as reasonable grounds for termination of the Contract, in which case reasonable cancellation charges shall be due Hach. Buyer’s insolvency, bankruptcy, assignment for the benefit of creditors, or dissolution or termination of the existence of Buyer, constitutes a default under the Contract and affords Hach all the remedies of a secured party under the laws of the Country of Order, as well as the remedies stated above for late payment or non-payment.
10. LIMITED WARRANTY: Hach warrants that goods sold under the Contract will be free from defects in material and workmanship and will, when used in accordance with the manufacturer’s operating and maintenance instructions, conform to any express written warranty pertaining to the specific goods purchased. The warranty period for goods is twenty-four (24) months from delivery unless a shorter or longer period is expressly stated in the applicable Hach manual for the goods in question, in which case such shorter or longer period applies. Hach warrants that services furnished under the Contract will be free from defects in workmanship for a period of ninety (90) days from the completion of the services. Parts provided by Hach in the performance of services may be new or refurbished parts functioning equivalent to new parts. Hach reserves the right to invoice at list price for any parts replaced during a service visit that are replaced due to normal wear and Buyer agrees to pay for such parts. Replacement parts are warranted against defects for the longer of ninety (90) days or the remainder of the original warranty period, if any, for the repaired goods. Any non-functioning parts that are repaired by Hach shall become the property of Hach. No warranties are extended to consumable items such as, without limitation, reagents, batteries, mercury cells, and light bulbs. All other guarantees, warranties, conditions and representations, either express or implied, whether arising under any statute, law, commercial usage or otherwise, including implied warranties of merchantability and fitness for a particular purpose, are hereby excluded. The sole remedy for Products not meeting this Limited Warranty is, at Hach´s reasonable choice, replacement, repair, credit or refund of the purchase price. See clause 5 INSPECTION & COSTS for allocation of logistics costs for repairs and replacements. This remedy will not be deemed to have failed of its essential purpose so long as Hach is willing to provide such replacement, credit or refund. Hach reserves the right to exclude any warranty for Products that have not been commissioned by Hach technicians or a certified Hach dealer; any repair of such Products will be at Buyer’s cost.
11. INDEMNIFICATION: Indemnification applies to a party and to such party’s successors-in-interest, assignees, affiliates, directors, officers, and employees (“Indemnified Parties”). Hach is responsible for and will defend, indemnify and hold harmless Buyer and the Buyer Indemnified Parties against all losses, claims, expenses or damages which may result from accident, injury, damage, or death due to Hach’s breach of the Limited Warranty. This indemnification is provided on the condition that the Buyer is likewise responsible for and will defend, indemnify and hold harmless Hach and the Hach Indemnified Parties against all losses, claims, expenses or damages which may result from accident, injury, damage, or death due to the negligence or misuse or misapplication of any goods or services by the Buyer or any third party affiliated or in privity with Buyer.
12. PATENT PROTECTION: Subject to all limitations of liability provided herein, Hach will, with respect to any Products of Hach’s design or manufacture, indemnify Buyer from any and all damages and costs as finally determined by a court of competent jurisdiction in any suit for infringement of any European patent for Products that Hach sells to Buyer for end use in the European Economic Area and Switzerland that has been issued as of the delivery date, solely by reason of the sale or normal use of any Products sold to Buyer under the Contract and from reasonable expenses incurred by Buyer in defense of such suit if Hach does not undertake the defense thereof, provided that Buyer promptly notifies Hach of such suit and offers Hach either (i) full and exclusive control of the defense of such suit when Products of Hach only are involved, or (ii) the right to participate in the defense of such suit when products other than those of Hach are also involved. Hach’s warranty as to use patents only applies to infringement arising solely out of the inherent operation of the Products according to their applications as envisioned by Hach’s specifications. In case the Products are in such suit held to constitute infringement and the use of the Products is enjoined, Hach will, at its own expense and at its option, either procure for Buyer the right to continue using such Products or replace them with non-infringing products, or modify them so they become non-infringing, or remove the Products and refund the purchase price (prorated for depreciation) and the transportation costs thereof. The foregoing states the entire liability of Hach for patent infringement by the Products. Further, to the same extent as set forth in Hach’s above obligation to Buyer, Buyer agrees to defend, indemnify and hold harmless Hach for patent infringement related to (x) any goods manufactured to the Buyer’s design, (y) services provided in accordance with the Buyer’s instructions, or (z) Hach’s Products when used in combination with any other devices, parts or software not provided by Hach under the Contract.
13. TRADEMARKS AND OTHER LABELS: Buyer agrees not to remove or alter any indicia of manufacturing origin or patent numbers contained on or within the Products, including without limitation the serial numbers or trademarks on nameplates or cast, molded or machined components.
14. SOFTWARE. All licenses to Hach’s separately-provided software products are subject to the separate software license agreement(s) accompanying the software media (which terms Hach will provide to Buyer before entering the Contract as described herein upon Buyer’s request). In the absence of such terms and for all other software, Hach grants Buyer only a personal, non-exclusive license to access and use the software provided by Hach with Products purchased under the Contract solely as necessary for Buyer to enjoy the benefit of the Products. A portion of the software may contain or consist of open source software, which Buyer may use under the terms and conditions of the specific license under which the open source software is distributed. Buyer agrees that it will be bound by any and all such license agreements. Title to software remains with the applicable licensor(s).
16. CHANGES AND ADDITIONAL CHARGES: Hach reserves the right to make design changes or improvements to any products of the same general class as Products being delivered under the Contract without liability or obligation to incorporate such changes or improvements to Products ordered by Buyer unless agreed upon in writing before the Products’ delivery date. Where Buyer requests the supply of additional or different Products, Hach is entitled to additional fair and appropriate compensation; provisions in Buyer’s order to the contrary (including, e.g., fixed prices) do not apply. Services which must be performed as a result of any of the following conditions are subject to additional charges for labor, travel and parts: (a) equipment alterations not authorized in writing by Hach; (b) damage resulting from improper use or handling, accident, neglect, power surge, or operation in an environment or manner in which the good is not designed to operate or is not in accordance with Hach’s operating manuals; (c) the use of parts or accessories not provided by Hach; (d) damage resulting from acts of war, terrorism or nature; (e) services outside standard business hours; (f) site prework not complete per proposal; or (g) any repairs required to ensure equipment meets manufacturer’s specifications upon activation of a service agreement.
17. SITE ACCESS / PREPARATION / WORKER SAFETY / ENVIRONMENTAL COMPLIANCE: In connection with services provided by Hach, Buyer agrees to permit prompt access to equipment. Buyer assumes full responsibility to back-up or otherwise protect its data against loss, damage or destruction before services are performed. Buyer is the operator and in full control of its premises, including those areas where Hach employees or contractors are performing service, repair and maintenance activities. Buyer will ensure that all necessary measures are taken for safety and security of working conditions, sites and installations during the performance of services. Buyer is the generator of any resulting wastes, including without limitation hazardous wastes. Buyer is solely responsible to arrange for the disposal of any wastes at its own expense. Buyer will, at its own expense, provide Hach employees and contractors working on Buyer’s premises with all information and training required under applicable safety compliance regulations and Buyer’s policies. If the equipment to be serviced is situated in an unsafe environment Buyer is solely responsible to make it available in an environment where the Hach service technician’s safety will be ensured and where the conditions will not interfere with his/her ability to perform the service work. Hach service technicians will not work in an unsafe environment and Buyer will bear the costs for any service visit aborted due to non-compliance with these safety responsibilities and for any return visit needed to complete the work. In the event that a Buyer requires Hach employees or contractors to attend safety or compliance training programs provided by Buyer, Buyer will pay Hach the standard hourly rate and expense reimbursement for such training attended. The attendance at or completion of such training does not create or expand any warranty or obligation of Hach and does not serve to alter, amend, limit or supersede any part of these Terms & Conditions and/or the Contract.
18. LIMITATIONS ON USE: Buyer will not use any Products for any purpose other than those identified in Hach’s catalogs and literature as intended uses. Unless Hach has advised the Buyer in writing, in no event will Buyer use any Products in drugs, food additives, food or cosmetics, or medical applications for humans or animals. In no event will Buyer use in any application any Product that requires a special medical device clearance unless and only to the extent the Product has such clearance. Any warranty granted by Hach is void if any goods covered by such warranty are used for any purpose not permitted hereunder.
19. EXPORT AND IMPORT LICENSES AND COMPLIANCE WITH LAWS: Buyer is not an agent or representative of Hach and will not present itself as such under any circumstance unless and only to the extent it has been formally screened by Hach’s Compliance department and received a separate duly-authorized letter from Hach setting forth the scope and limitations of such authorization. Unless otherwise specified in the Contract, Buyer is responsible for obtaining any required export or import licenses. Hach represents that all Products delivered under the Contract will be produced and supplied in compliance with all applicable laws and regulations. Buyer will comply with all laws and regulations applicable to the installation or use of all Products, including applicable import and export control laws and regulations of Country of Order, the U.S., E.U. and any other country having proper jurisdiction, and will obtain all necessary export licenses in connection with any subsequent export, re-export, transfer and use of all Products and technology delivered under the Contract. Buyer will not sell, transfer, export or re-export any Hach Products or technology for use in activities which involve the design, development, production, use or stockpiling of nuclear, chemical or biological weapons or missiles, nor use Hach Products or technology in any facility which engages in activities relating to such weapons. Buyer will comply with all local, national, and other laws of all jurisdictions globally relating to anti-corruption, bribery, extortion, kickbacks, or similar matters which are applicable to Buyer’s business activities in connection with the Contract, including but not limited to the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”). Buyer agrees that no payment of money or provision of anything of value will be offered, promised, paid or transferred, directly or indirectly, by any person or entity, to any government official, government employee, or employee of any company owned in part by a government, political party, political party official, or candidate for any government office or political party office to induce such organizations or persons to use their authority or influence to obtain or retain an improper business advantage for Buyer or for Hach, or which otherwise constitute or have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining business or any improper advantage, with respect to any of Buyer’s activities related to the Contract. Hach asks Buyer to “Speak Up!” if aware of any violation of law, regulation or Hach’s Standards of Conduct (“SOC”) in relation to the Contract. See http://danaher.com/integrity-and-compliance and www.danaherintegrity.com for a copy of the SOC and for access to Hach’s Helpline portal.
20. FORCE MAJEURE: Hach is excused from performance of its obligations under the Contract to the extent caused by acts or omissions that are beyond its control, including but not limited to Government embargoes, blockages, seizures or freeze of assets, delays or refusals to grant an export or import license or the suspension or revocation thereof, or any other acts of any Government; fires, floods, severe weather conditions, or any other acts of God; quarantines; labor strikes or lockouts; riots; strife; insurrections; civil disobedience or acts of criminals or terrorists; war; material shortages or delays in deliveries to Hach by third parties. In the event of the existence of any force majeure circumstances, the period of time for delivery, payment terms and payments under any letters of credit will be extended for a period of time equal to the period of delay. If the force majeure circumstances extend for six months, Hach may, at its option, terminate the Contract without penalty and without being deemed in default or in breach thereof.
21. NON ASSIGNMENT AND WAIVER: Buyer will not transfer or assign the Contract or any rights or interests thereunder without Hach’s prior written consent. Failure of either party to insist upon strict performance of any provision of the Contract, or to exercise any right or privilege contained therein, or the waiver of any breach of the terms or conditions of the Contract will not be construed as thereafter waiving any such terms, conditions, rights, or privileges, and the same will continue and remain in force and effect as if no waiver had occurred.
22. LIMITATION OF LIABILITY: None of Hach and the Hach Indemnified Parties will be liable to Buyer under any circumstances for any special, treble, incidental or consequential damages, including without limitation, damage to or loss of property other than for the Products purchased under the Contract; damages incurred in installation, repair or replacement; lost profits, revenue or opportunity; loss of use; losses resulting from or related to downtime of the Products or inaccurate measurements or reporting; the cost of substitute products; or claims of Buyer’s customers for such damages, howsoever caused, and whether based on warranty, contract, and/or tort (including negligence, strict liability or otherwise). The total liability of Hach and the Hach Indemnified Parties arising out of the performance or nonperformance under the Contract or Hach’s obligations in connection with the design, manufacture, sale, delivery, and/or use of Products will in no circumstance exceed in the aggregate a sum equal to twice the amount actually paid to Hach for Products delivered thereunder.
23. APPLICABLE LAW AND DISPUTE RESOLUTION: The construction, interpretation and performance of these Terms & Conditions of Sale and of the Contract and all transactions thereunder shall be governed by the laws of the Country of Order excluding the Convention on the International Sale of Goods (CISG) and without regard to its principles or laws regarding conflicts of laws. If any provision of the Contract and/or these Terms & Conditions of Sale violates any Federal, State or local statutes or regulations of the Country of Order, or is illegal for any reason, said provision shall be self-deleting without affecting the validity of the remaining provisions. Unless otherwise specifically agreed upon in writing between Hach and Buyer, any dispute relating to the Contract which is not resolved by the parties shall be adjudicated by a court of competent jurisdiction in the Country of Order.
24. ENTIRE AGREEMENT & MODIFICATION: These Terms & Conditions of Sale together with the Contracts formed as described herein (incorporating these Terms & Conditions) constitute the entire agreement between the parties and supersede any prior agreements or representations, whether oral or written. No change to or modification of these Terms & Conditions or any Contract shall be binding upon Hach unless in a written instrument specifically referencing that it is amending these Terms & Conditions of Sale and/or a specific Contract and signed by an authorized representative of Hach. Hach rejects any additional or inconsistent Terms & Conditions offered by Buyer at any time, whether or not such terms or conditions materially alter the Terms & Conditions herein and irrespective of Hach’s acceptance of Buyer’s order for the described goods and services.