Terms & Conditions
1. (a) Determination of the suitability of the goods described herein for the use contemplated by Buyer or Buyer’s customers for such goods is the sole responsibility of Buyer or Buyer’s customers, whichever the case may be, and Gelest, Inc. shall have no responsibility in the connection therewith. Buyer assumes all risk and liability for loss, damage or injury to property of Buyer or others arising out of the use or possession of the goods furnished.
(b) Except as expressly stated herein, the seller does not warrant the material covered by this agreement in any manner whatsoever and no warranty, express, implied or statutory, is made by the seller. Seller makes no representation or warranty that the material is merchantable or fit for a particular purpose.
(c) Seller in no event shall be liable for incidental or consequential damages in connection with this contract. Consequential damages shall include loss of use, income or profit.
(d) The maximum liability of the seller or producer, if any, on account of inferior quality, defective condition, delay, unsuccessful reactions, failure to ship or from any other cause shall be to refund if paid, or otherwise credit buyer the purchase price of that part of the material which is subject to the condition or cause on which claim is based.
2. Acceptance of this order is expressly conditioned upon the terms and conditions contained herein and buyer agrees to comply with said terms and conditions unless otherwise agreed to in writing by the Seller and Buyer.
3. The terms of sale are NET 30 days of the date of the invoice unless otherwise stated. If the financial condition of the Buyer results in the insecurity of the Seller, the Seller at its discretion, may without notice to Buyer postpone delivery of the goods and Seller, at its option, is authorized to change the terms of payment by Buyer. Buyer will incur a finance charge of eighteen percent per annum (1.5% per month) for unpaid invoices beyond the stated terms. Buyer agrees to pay all costs, including but not limited to attorney fees or other expenses of collection resulting from any default by Buyer.
4. Buyer may not modify or cancel an order already confirmed by Seller without Seller’s express written consent. Modification or cancellation may require payment by Buyer of certain costs incurred by Seller.
5. Title and risk of loss shall pass to Buyer as soon as the materials delivered on board common carrier or other carrier specified by Buyer at our warehouse or delivered on board common carrier at other specified EXW point, unless alternative Incoterms are quoted by the Seller.
6. Carrier weights at point of shipment shall govern. Shortages of more than one percent (1%) of the net weight will not be allowed.
7. Buyer will examine and test each shipment on arrival at destination. Any claims against Seller or producer will be waived unless made in writing and received by Seller within fifteen days (15) after the arrival of the material at the destination. No claim shall be allowed for any cause as to material which has been treated or processed in any manner. No material shall be returned for credit by Buyer without prior written consent of Seller.
8. Buyer assumes all risks and liability for results of the use of the material, including any changes made in the composition or form thereof or its use in combination with other materials.
9. The goods sold are for research and development use or for manufacturing use in compliance with EPA regulations. Buyer realizes that, since Seller’s products are, unless otherwise stated, intended for research purposes, they may not be on the Toxic Substances Control Act (TSCA) inventory. Buyer assumes responsibility to assure that the products purchased from Seller are approved for use under TSCA, if applicable. The goods are not to be used in foods, as drugs, as medical devices for human or animal consumption.
10. Buyer assumes all responsibility for the safe handling and utilization of the goods sold. Buyer is responsible to take all appropriate precautions against possible dangers arising out of any unknown hazard or toxicity of the goods. Buyer has the sole responsibility of disposing of any waste associated with material purchased including containers in full compliance with federal, state, or other governing regulations.
11. Seller, upon Buyer’s request, may furnish technical advice with reference to the use of the material sold hereunder, but it is expressly agreed that there is no obligation to furnish any such advice and, if any such advice is furnished, it shall be given and accepted at Buyer’s sole risk. Buyer agrees to indemnify and save harmless Seller from costs, fees or losses resulting from claims or suits brought by third parties claimed to be based upon advice by seller.
12. Seller shall not be held responsible for failure or delay in shipping or delay in manufacture of the goods. Any shipment made by Seller before receipt of written notice from Buyer that the latter cannot accept shipments shall be accepted by Buyer and in any event paid for by Buyer.
13. Prices are subject to change by Seller without notice. Pricing for orders accepted for shipment within sixty days will be invoiced at the price stated at the time of acceptance of the order. On any order or any part of an order actually shipped sixty days or more after the date of acceptance, prices in effect at the time of shipment will apply. Before making any shipment at a price in excess of that stated in the accepted order, Seller will notify Buyer and thereupon Buyer shall have the right to cancel the part of the order to which the increased price applies.
14. Gelest, Inc. warrants only that the goods supplied shall meet the description stated herein. Buyer’s exclusive remedy and Gelest, Inc. exclusive liability shall be limited to the refund of the purchase price of, or replacement of, all goods shown to be otherwise than as warranted and Gelest, Inc. shall in no case be liable otherwise for incidental or consequential damages. If the goods are considered unsatisfactory for any reason, Gelest, Inc. must be notified within 15 days of receipt at Buyer’s location. Failure by Buyer to give said notice shall constitute a waiver by Buyer of all claims hereunder with respect to said goods. If requested by Gelest, Inc., Buyer shall promptly return to Gelest, Inc. plant by the method designed by Gelest, Inc. all unconsumed goods alleged by Buyer to be otherwise than warranted and Gelest, Inc. will pay freight thereon.
15. Seller reserves the right to change specifications and process(es) without notice unless Buyer and Seller otherwise agree in writing.
16. Seller makes no express or implied representation that 1) the goods sold do not infringe on any existing or pending patent, or 2) patents covering the goods do not exist, or 3) the goods are sold pursuant to a license held by the Seller under any existing or pending patent. Buyer assumes all responsibility for determining if patents or pending patents exist which cover the goods sold.
17. Seller reserves the right to refuse sale of any materials if the user is unable to demonstrate that professional supervision is available to provide compliance with EPA, OSHA, Right to Know Laws, other existing regulations, or to handle materials of unknown safety and toxicity potential.
18. This agreement shall be deemed separable as to the materials sold. Buyer may not refuse to accept any lot or portion of the material shipped hereunder on the ground that there has been a failure to deliver any other lot or material if any other lot was nonconforming.
19. Seller has the right to correct any stenographical or clerical errors in any of the writings issued by it. The terms and conditions of sale and any description on the Seller’s order acknowledgement form constitute a complete and exclusive statement of the terms and conditions of the sale of goods by Seller to Buyer. There are no other promises, conditions,
understandings, representations or warranties. This agreement may be modified only in a writing signed by the Seller. No waiver of any right will be effective against Seller unless supported by consideration and expressly stated in the writing signed by the Seller. The failure of Seller to enforce any right will not be construed as a waiver of Seller’s right to performance in the future. This agreement shall supersede the Seller’s obligation to sell or deliver products under any prior agreements.
20. All orders are subject to written acceptance and confirmation by the Seller at its Office in Morrisville, Pennsylvania. Changes to the contract shall be made only in writing signed by duly authorized representatives. This contract shall be governed and construed according to the Uniform Commercial Code as adopted in the Commonwealth of Pennsylvania.