1. CONTRACT: All sales transactions are expressly subject to these terms and conditions. Modification or additions will be recognized only if accepted in writing by an officer of Mettler-Toledo, LLC. – Eagle Division (hereinafter referred to the “Company"), or an officially designated representative. Provisions of Buyer's Purchase Order or other documents that add to or differ from these Terms and Conditions are EXPRESSLY rejected. No waiver of these Terms and Conditions or acceptance of others shall be construed as failure of the Company to raise objections.
2. QUOTATIONS AND PUBLISHED PRICES: Quotations automatically expire 60 calendar days from the date issued unless otherwise stated in the quotation and are subject to withdrawal by notice within that period. The Company reserves the right to extend such quotation up to 6 months from the date of issuance. The Company's prices for equipment, unless otherwise specified, do not include an allowance for installation and or final on site adjustment.
3. TAXES and DUTY: The Company's prices do not include any applicable duty, inspection fees, sales, goods and services, use, excise or similar taxes, unless specifically mentioned in the quotation.
4. TERMS OF PAYMENT: Unless explicitly agreed to elsewhere in writing terms are 100% on order.
5. DELIVERY: Delivery dates indicated in the contract documents are approximate and are based on prompt receipt of all necessary information regarding the equipment covered by the contract as well as receipt of the down payment. The Company will use reasonable efforts to meet the indicated delivery dates, but cannot be held responsible for its failure to do so. Title to the equipment and risk of loss shall pass to Buyer upon delivery to a carrier at Mettler-Toledo, Inc. Tampa. In the event of a delay in shipment caused by the Buyer, the company will against Warehouse Receipt deliver the equipment to a Bonded Warehouse. The Company will in this case collect payment as referenced in Article 4 above.
6. SHIPPING AND HANDLING: Shipments are Ex Works Company. Unless the Buyer elects a freight collect shipment, shipping charges plus the applicable company handling charge will be prepaid and billed as a separate item on the equipment invoice.
7. CHANGES: Buyer may with the express written consent of the Company make changes in the specifications for equipment or work covered by the contract. In such event the contract price and delivery dates shall be equitably adjusted. The Company shall be entitled to payment for reasonable profit plus costs and expenses incurred by it for work and materials rendered unnecessary as a result of such changes and for work and materials required to effect said changes.
8. CANCELLATION and RETURN OF EQUIPMENT: Undelivered parts of any order may be canceled by the Buyer only with the written approval of the Company. In the event of any cancellation of this order by Buyer, the Buyer shall pay to the Company the reasonable costs and expenses (including engineering expenses and all commitments to its suppliers and subcontractors) incurred by the Company prior to receipt of notice of such cancellations, plus the Company's usual rate of profit for similar work. There will be a 20% restocking fee, in addition to any shipping costs incurred and our technician’s expense, if applicable, for all returned items.
9. SECURITY INTEREST: Buyer agrees to pay for the equipment according to the Company's payment terms and does hereby grant to the Company a purchase money security interest in the equipment until such time as it is fully paid. Buyer will assist the Company in taking the necessary action to perfect and protect the Company's security interest. In the event of a default by Buyer, the Company shall be entitled to any of the rights and remedies provided by law, including but not limited to repossession of the equipment.
10. DEFAULT: Upon default and placing of the buyer’s account for collection or repossession of equipment, the Buyer agrees to reimburse collection cost, legal fees, and court cost incurred by the Company in connection therewith.
11. WARRANTIES: ABSENT A SEPARATE WARRANTY ISSUED TO BUYER BY COMPANY, COMPANY EXPRESSLY WARRANTS THE EQUIPMENT MANUFACTURED AND THE SERVICES PERFORMED BY IT TO BUYER SOLELY AS SET FORTH HEREIN. COMPANY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). THESE WARRANTIES MAY BE TRANSFERRED TO A SUBSEQUENT PURCHASER OF THE EQUIPMENT ONLY WITH THE PRIOR WRITTEN CONSENT OF COMPANY. IN ADDITION, THE FOLLOWING SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDIES OF BUYER FOR ANY BREACH BY COMPANY OF ITS WARRANTY HEREUNDER.
A. PRODUCT – Company warrants that the equipment covered by this warranty will be free from defects in workmanship and materials, under normal use, for a period of 1 year from the date of original installation, or 18 months from the date of shipment to Buyer, whichever occurs first. Should any such defects be found and reported during the term of the warranty, Company will, at its option, refund the purchase price or correct such defects, furnishing replacement parts and labor free of charge to Buyer. Company will also furnish travel up to 80 kilometers (50 miles) from the nearest Company service representative or authorized Company service provider free of charge during the warranty period.
B. SOFTWARE – Company warrants that software developed by Company will perform substantially the functions described in the software documentation when properly installed. Company does not warrant that the software is error-free, that Buyer will be able to operate the software without interruption, or that the software will be free of vulnerability to intrusion or attack. The warranty period will be the same as the warranty period for the Company equipment within which the software is embedded. If the software is not embedded within Company equipment, the terms and conditions of the respective end user license agreement of Company shall apply exclusively. If no end user license agreement is applicable, the warranty period will be 90 days from the date of purchase by Buyer.
C. SERVICE – Company warrants that services will be performed in a workmanlike manner in conformity with standard industry practice. Should any nonconformity be detected within 30 days after the work is completed and prompt notification is made by Buyer in writing to Company, Company will supply the necessary service, direction or consultation to correct the nonconformity.
D. GENERAL – The foregoing warranties are further subject to the following general conditions: (1) Consumables, accessories, normal wear and tear, wear parts and perishables are expressly excluded from the foregoing warranties. (2) If Buyer requests the performance of warranty work provided for under the foregoing warranties during other than normal Company work periods, Buyer will be required to pay for all premium time. (3) These warranties will not apply where Company’s equipment and/or software has been subjected to: accident, alteration, misuse, abuse, failure on the part of Buyer to ensure proper storage, operation and/or maintenance, installation or servicing by other than Company authorized personnel, the addition or supply of equipment not approved for incorporation into Company’s product, integration into the Buyer’s environment, or Buyer/ third party supplied software or interfacing. (4) Company does not warrant the calibration of any scale. Company does however warrant the scales manufactured by it to be capable of being adjusted to meet Company’s printed specifications, if any, for weighing accuracy as to the particular model/type scale for the period of warranty above stated when properly installed and used. (5) Products of other manufacturers sold by Company as such are warranted by Company solely to the extent of any remaining warranty provided by the original manufacturer. (6) In the event equipment is repaired by Company, the performance of such repair work will not extend existing nor generate new warranty coverage for the equipment as a whole or for those parts not repaired or replaced by Company.
E. METHODS OF CORRECTION OF DEFECTS DURING WARRANTY – To correct defects Company may attempt to diagnose and resolve the defect over the telephone or electronically. Certain equipment contains remote support capabilities for direct problem reporting, remote problem determination, and resolution with Company. When Buyer contacts Company for warranty work, it must follow the problem determination, resolution and procedure that Company specifies. At any time following or to assist in problem determination, Company may require return of the part or product to depot for service. If Company determines on-site work is required, a service technician will be scheduled for on-site work. If Buyer gives notice of a defect to Company and requests Company for on-site work when the defect could have been remedied remotely, or if Company responds to Buyer’s notice of defect and no defect is found for which Company is liable, Company shall be entitled to compensation for any work performed and costs it has incurred as a result of Buyer’s request. Company encourages Buyer to use available remote support technologies. Failure to install and use available remote connectivity tools and equipment for direct problem reporting, remote problem determination and resolution may result in increased response-time and additional costs to Buyer.
F. PRO-RATED GENERATOR WARRANY – For generators, there is a pro-rated warranty that commences on the date of installation or 18 months from the date of shipment to the buyer whichever occurs first for the specified amount of time listed in the table below unless otherwise noted. The pro-rated warranty does not start over if the generator is replaced under the pro-rated warranty period. The customer has the option to purchase a new generator at the current list price to start a new pro-rated warranty period. Other associated fees are not included with the pro-rated warranty period. There is a disposal fee for defective items returned to Company.
Standard X-Ray Generator Warranty:
HR 7, HR11, HR10
1st year 100% replacement
2nd year 75% of exchange list price
3rd year 50% of exchange list price
4th year 25% of exchange list price
Hi Performance X-Ray Generator Warranty:
1st year 100% replacement
2nd year 50% of exchange list price
12. INDEMNITY: Company agrees to indemnify Buyer and hold it harmless from and against any direct loss suffered and any direct liability to third parties whenever such loss or liability is directly due to bodily injury (including death) to any third party or direct damage to any third party property occurring in the course of, and caused exclusively by, any negligent act or omission by Company on the premises of Buyer that occurs in the performance of the work contemplated herein. This indemnity shall include reasonable legal fees and settlements of claim or suit. Buyer shall provide prompt written notice to Company of any actual or anticipated claims against it that might trigger the foregoing indemnity; failure to do so waives Buyer’s right to indemnification hereunder. Following such written notice, Company shall have the sole and exclusive right to manage the defense of any indemnified claims and shall be authorized to settle or compromise such claims at its sole and exclusive discretion. Buyer shall cooperate in the defense of all indemnified claims as deemed necessary by Company.
13. PATENT INFRINGEMENT: Company shall defend any suit or proceeding brought against Buyer so far as the same is based on a valid claim that any equipment of Company’s design furnished hereunder, or any part thereof, constitutes an infringement of any applicable patent, if notified promptly in writing and given authority, information and assistance (at Company’s expense) for the defense of the same and if such alleged infringement is not the result of a design or other special requirement specified by Buyer or the result of the application of the use to which such equipment is put by Buyer or others. Company will pay all damages and costs finally awarded in such suit or proceeding against Buyer provided that Company has the sole and exclusive right to defend, settle or compromise any suit or proceedings and Buyer takes no action that would materially detract from Company’s ability to conduct an effective defense, settlement or compromise. In such case equipment or part in such suit held to infringe any such patent and the use thereof is enjoined, Company will at its expense either, at its option; (a) obtain for Buyer the right to continue using such equipment or part or; (b) replace the same with non infringing equipment, or; (c) modify the same so that it becomes non infringing or; (d) remove said equipment and refund the purchase price and the transportation and installation costs thereof. The foregoing states the entire liability of Company to Buyer for patent infringement.
14. REGULATORY LAWS AND OR STANDARDS: The performance of the parties hereto is subject to the applicable laws of the United States or Canada, depending on the location of delivery of the product or service. The Company takes reasonable steps to keep its products in conformity with various nationally recognized standards and such regulations, which may affect its products. However, the Company recognizes that its products are utilized in many regulated applications and that from time to time standards and regulations are in conflict with each other. The Company makes no promise or representation that its product will conform to any federal, provincial, state or local laws, ordinances, regulations, codes or standards except as particularly specified and agreed upon for compliance in writing as a part of the contract between Buyer and the Company. The Company prices do not include the cost of any related inspections or permits or inspection fees.
15. INTELLECTUAL PROPERTY: The sale and delivery of Company’s equipment and/or software to Buyer will in no way transfer to Buyer any right of ownership in any patents, copyrights, trademarks, technologies, designs, specifications, drawings, or other intellectual property incorporated into the equipment and/or software.
16. DISCLAIMER OF DAMAGES: IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY TYPE OF SPECIAL CONSEQUENTIAL, INCIDENTAL OR PENAL DAMAGES, WHETHER SUCH DAMAGES ARISE OUT OF OR ARE A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. Such damages shall include but not be limited to loss of profits or revenues, loss of use of the equipment or associated equipment, cost of substitute equipment, facilities, down time costs, increased construction costs or claims of Buyer's customers or contractors for such damages. Buyer agrees that in the event of a transfer, assignment, or lease of the equipment sold hereunder Buyer shall secure for the Company the protection afforded to it in this paragraph.
17. LIMITATION OF LIABILITY: Company will not be liable for any loss, claim, expense or damage caused by, contributed to or arising out of the acts or omissions of Buyer and third parties, whether negligent or otherwise. In no event will Company’s aggregate liability for any and all types of damages or losses related to this agreement or the products or services sold or delivered pursuant hereto exceed the cost of the item giving rise to the claim, whether based in contract, warranty, indemnity, or tort (including negligence). Any suit arising hereunder must be commenced within one year from the date on which the cause of action accrues.
18. NO RESPONSIBILITY FOR GRATUITOUS INFORMATION OR ASSISTANCE: If Company provides Buyer with assistance or advice which concerns any parts, products, service supplied hereunder or any system or equipment in which any such part product service may be installed and which is not required pursuant hereto, the furnishing of such assistance or advice shall not subject Company to any liability, whether based in contract warranty, tort (including negligence) or otherwise.
19. INTERPRETATION: Should any term or provision contained in the contract contravene or be invalid under applicable law, the contract shall not fail by reason thereof but shall be construed in the same manner as if such term or provision had not appeared therein.
20. INSURANCE: Upon request, Company shall provide evidence of insurance in accordance with its standard coverage and limits. Company does not provide third parties direct access to its insurance or give additional rights to its insurance, such as naming additional insured parties.
21. FORCE MAJEURE: The inability of Company to fulfill its obligations required under these terms and conditions resulting from defaults or delays caused by conditions beyond Company’s reasonable control including, but not limited to strikes, insurrection, acts of God, war, terrorist activities, emergencies, shortages or unavailability of materials, weather, change in law or other similar causes, will extend the period for the performance of the obligations for the period equal to the period(s) of any such delays(s) and Buyer will not have the right to termination; provided that Company will continue to perform to the extent feasible in view of such force majeure.
22. EXPORT CONTROL: Buyer acknowledges that the equipment may include technologies and software that are subject to export control regulations in Europe or the United States of America or countries in which the equipment is delivered or used. The Buyer is solely responsible for adherence to these restrictions in case the Buyer exports or re-exports the equipment and the Buyer agrees to indemnify and hold Company harmless from, or in connection with, any violation of such export restrictions by Buyer, or its employees, consultants, agents, or customers.
23. GOVERNING LAW AND PLACE OF JURISDICTION: The legal relationship between Buyer and Company shall be governed by the laws of the United States of America. Exclusive place of jurisdiction shall be Tampa, Florida. Company however reserves the right to initiate court proceedings against the Buyer at any other court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is explicitly excluded.