General Terms & Conditions of Sale and Delivery (T&Cs)
General Terms & Conditions of Sale and Delivery (T&Cs)
GENERAL TERMS AND CONDITIONS
PRODUCTS FURNISHED BY HPC STANDARDS INC ARE FOR LABORATORY USE ONLY! OUR PRODUCTS MAY NOT BE USED AS DRUGS, COSMETICS, AGRICULTURAL OR PESTICIDAL PRODUCTS, FOOD ADDITIVES OR AS HOUSEHOLD CHEMICALS.
These terms and conditions, together with all relevant documentation such as offers, estimates or quotations (including referenced documents) (collectively these "Terms") apply to the purchase and sale of products and services through hpc-standards.us (the "Site") or any other outlet or method as determined by HPC Standards Inc from time to time. These Terms are subject to change by HPC Standards Inc (referred to as "us", "we", or "our" as the context may require) without prior written notice at any time, in our sole discretion. The latest version of these Terms will be posted on this Site, and you should review these Terms before purchasing any product or services. Your continued use of this Site after a posted change in these Terms will constitute your acceptance of and agreement to such changes.
2. Order Acceptance.
You agree that your order is an offer to buy, under these Terms, all products and services listed in your order. All orders must be accepted by us or we will not be obligated to sell the products or services to you. We may choose not to accept any orders in our sole discretion. After having received your order, we may send you an order confirmation with your order number and details of the items you have ordered. Acceptance of your order and the formation of the contract of sale between us and you will not take place unless and until you have received your order confirmation.
Once accepted by us, orders may not be cancelled or varied by the you without the consent of us in writing. We reserve the right to correct any significant errors or omissions in our order confirmations or invoices. Any other terms and conditions contained in any order or other document issued by you will not form part of the contract between us and you unless they are expressly signed and accepted by us. Notwithstanding the foregoing, in case of a cancellation, we may charge Five Percent (5%) of the order value or any higher amount of damages suffered through such a cancellation to you.
All prices for products are subject to change without notice. The price charged for a product or service will be the price in effect at the time the order is placed and will be set out in your order confirmation. Unless otherwise agreed to, prices are in US Dollars. Prices are exclusive of all charges or levies of any nature, including all federal, state, municipal or other governmental excise, sales, use, occupational or like taxes now in force or enacted in the future and, therefore, are subject to an increase in amount equal to any tax we may be required to collect or pay upon the sale of products purchased. If a certificate of exemption or similar document is required in order to exempt the sale from sales or use tax liability, you will obtain and furnish evidence of such exemption at time of placement of order. Notwithstanding the foregoing, if prices are based on our then current price lists, and delivery upon your request occurs more than three (3) months after the order confirmation, then you may, subject to written notice within one (1) week of receipt of the new price, terminate the order if the listed prices increased by more than Ten Percent (10%) of the original order value.
5. Payment Terms.
(a) Unless otherwise agreed between the parties or explicitly stated on the Site, all payments are due in full, payable to us within thirty (30) days from the invoice date ("Due Date"). We reserves the right to require an advanced deposit of up to 100% of the purchase price at the time of order, or any time prior to delivery, as a condition of sale. In the event that you fail to pay for an order, or are overdue on payments, we may hold any orders that have been placed, but not yet shipped. Additionally, we may change your terms, and reserves the right to require pre-payment for future orders.
(b) All payments must be received by the Due Date, even if the delivery of products is delayed for reasons, for which we are not responsible, or slight corrections are necessary.
(c) Should you fail to pay for the products within the time frame specified herein, we may: (i) impose a service charge on the unpaid balance at eight (8) percentage points of the applicable base lending rate, or the maximum rate permitted by law, from the Due Date until the invoice and all service charges thereon have been paid in full. If allowed by applicable law, you shall also pay on demand any costs incurred by us (including reasonable attorney’s fees and legal expenses) in connection with the collection of any amounts due from you to us which are not paid as agreed herein; (iii) refuse to make any further deliveries until the amount due has been fully paid; and/or (iv) treat your failure to make payments as a repudiation of the order if the amount due remains unpaid after providing seven (7) days' notice to you of such breach and an opportunity to rectify the breach. Such repudiation shall entitle us to elect, without prejudice to any other rights, to terminate an order in whole or in part (including any order or part thereof) and, in either case, to recover damages for the breach of these Terms.
(d) You are not entitled to withhold any payment as set off, counterclaim or retention unless the terms and conditions of such set off or retention are agreed to in writing by us prior to the sale of products or provision of services.
(e) You are required to consult and become familiar with our current shipping and handling costs, which are available by clicking here.
6. Shipments; Delivery; Title and Risk of Loss.
(a) Unless otherwise agreed to, we will supply the products on the basis of EXW our facility (Incoterms). Partial deliveries are permitted. We may deliver products in advance of the scheduled delivery. Unless otherwise agreed in writing between the parties, our principal office is the place of performance.
(b) We will use reasonable endeavors to meet any delivery or completion date quoted but such date or time is a bona fide estimate only according to information available to us and is not to be construed as a fixed date or time unless specifically agreed to by us in writing.
(c) Delivery dates are considered adhered to if, prior to their expiration, the notification of dispatch or readiness for acceptance of us has been sent to you.
(d) Any delivery or completion date shall be extended in respect of any delay relating to either instructions given by, or lack of instructions from, you, or any other acts or omissions of you or those for whom you are responsible.
(e) Risk of loss or damage for all products will pass to you upon our delivery of the products to the carrier. In case of a delay at no fault of us, you risk of loss or damage for all products will pass to you upon our readiness to ship. Any products stored by us due to no fault of our own, incur a weekly storage fee of Zero Point Two Five Percent (0.25%) of the order value. Unless otherwise agreed to in writing, we will not insure any products.
7. Transfer, retention of title, and security interest
(a) You (a) agree that title in the products remains with us until you have fully paid to us all amounts due or to become due for the products, in each case in good, collected and indefeasible funds (the "Release Date"); and (b) acknowledge that, until the Release Date, you are in possession of the products for and on behalf of us as a bailee.
(b) As security for all of your obligations hereunder, you further grant to us a security interest in (i) all products purchased in accordance with the Terms; (ii) without in any way limiting any restrictions herein, any and all leases, chattel paper, instruments, accounts and security deposits relating in any way to such products; and (iii) in all proceeds thereof (the "Collateral"). You acknowledges that the security interest granted under these Terms is a purchase money security interest under the Uniform Commercial Code as enacted in the State of Georgia ("UCC").
(c) You expressly authorize, ratify and confirm past or future filings of one or more UCC financing statements or other documents by us or our designees to the extent deemed necessary or desirable by us. Such financing statements or documents may describe the Collateral in the manner in which we determine best protects our interests in the Collateral and facilitates the future sale of products.
(d) You shall not sell, pledge, transfer or assign the products (for security or otherwise) until the Release Date without our written consent.
(e) Until the Release Date, you shall carefully store, maintain, and insure the delivered products; shall protect such products against theft, breakage, fire, water and other risks, and moreover shall take all reasonable measures in order that our rights and interests in such products are neither compromised nor cancelled. Until the Release Date, you must keep the products identifiably separate from other goods not supplied by us.
(f) In the event of a breach, we may utilize any remedies available to us at law or in equity. In all cases, you will be responsible for our costs and expenses in exercising our rights.
You shall inspect the products supplied by us under the Terms within seven (7) days of the products being delivered and notify us of any defects in writing. Otherwise, we will deem the products to be accepted. If, upon inspection of the products after delivery, minor defects are detected, you shall be deemed to have accepted the products. We shall subsequently remedy the detected minor defects. If, during the acceptance inspection, major defects are detected, acceptance is postponed. We shall promptly remedy such detected defects and notify you of a new acceptance date.
9. Returns and Refunds.
Except for any products designated as non-returnable, you may return the product, subject to our previous written consent, for a refund of your purchase price, less the original shipping and handling costs, provided such return is made within thirty (30) days of delivery and provided such products are returned in their original condition. To return products, you must email us at Returns Department at firstname.lastname@example.org to obtain a return merchandise authorization ("RMA") before shipping your product. No returns of any type will be accepted without an RMA. You are responsible for all shipping and handling charges on returned items. You bear the risk of loss during shipment. All returns may subject to a restocking fee as determined by us.
(a) In addition to any other remedies that we may have in law, we may terminate or suspend any order or any part thereof if you: (i) fail to pay any amount and such failure continues for fourteen (14) days after the your receipt of a written notice demanding payment ("Notice of Demand") from us; (ii) have not otherwise performed or complied with any of the terms and conditions of these Terms in whole or in part; and/or (iii) become 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.
(b) If an order (or parts thereof) is terminated, as specified in this Section 10, we will have an immediate right to re-possession of the products held by you and for which the full purchase price has not been paid as of the date of termination; and all other outstanding amount owed to us by you shall be due and payable by you on demand by us, per the terms of the Notice of Demand.
11. LIMITED WARRANTY.
(a) We warrants that the products will conform to any description contained in the relevant order confirmation and with the standard specification for the products. Products shall be delivered free from defects in material, workmanship and title and services shall be performed in a competent and diligent manner in accordance with any mutually agreed specifications.
(b) If the products supplied or services performed by us do not satisfy the warranties specified herein, you shall promptly notify us in writing prior to expiration of the warranty period. We may at our sole discretion and no cost to you rectify such defects.
(c) The warranty does not apply in respect of defects due to or arising from incorrect or negligent handling, disregard of operating or maintenance instructions, accident, neglect, acts of God, causes beyond our control, and unauthorized repairs or alterations.
(d) This express warranty only applies if (i) the products have been properly handled, located, used, maintained and stored; (ii) defects occur within twelve (12) calendar months of the transfer of risk; (iii) we are notified in writing within seven (7) days of the alleged defect first coming to your notice; and (iv) you fulfilled all of his contractual obligations under the Terms.
(e) Notwithstanding Section 11(d), the warranty period for chemical or physical qualities is shortened if the substance has a use-before date of less than one (1) year. In that case, the warranty is up to the given use-before date.
(f) THE EXPRESS WARRANTIES AND EXPRESS REPRESENTATIONS SET FORTH IN THESE TERMS ARE IN LIEU OF, AND WE DISCLAIM, ANY AND ALL OTHER WARRANTIES, CONDITIONS OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE GOODS OR SERVICES HEREUNDER, INCLUDING ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE, WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE. WE HEREBY EXPRESSLY DISCLAIM ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN YOU.
12. LIMITATION OF LIABILITY.
THE REMEDIES DESCRIBED ABOVE ARE YOUR SOLE AND EXCLUSIVE REMEDIES AND OUR ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF THIS LIMITED WARRANTY. NOTWITHSTANDING ANYTHING ELSE CONTAINED HEREIN TO THE CONTRARY, WE SHALL NOT BE LIABLE (TO THE FULLEST EXTENT PERMITTED AT LAW) WHETHER BY WAY OF INDEMNITY, GUARANTEE, OR BY REASON OF ANY BREACH OF CONTRACT, OR OF STATUTORY DUTY OR BY REASON OF TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR ANY OTHER LEGAL PRINCIPLE OR DOCTRINE FOR: (A) ANY CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES; (B) ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE OR LOSS OF ANTICIPATED SAVINGS OR FOR ANY FINANCIAL OR ECONOMIC LOSS (WHETHER DIRECT OR INDIRECT) OR FOR ANY CONSEQUENTIAL OR INDIRECT LOSS OR DAMAGE WHATSOEVER; OR (C) ANY OTHER AMOUNT IN AGGREGATE WITH ANY OTHER LIABILITY (BEING ANY PAST, PRESENT OR FUTURE LIABILITY) TO WHICH THIS SECTION APPLIES, THAT EXCEEDS THE AGGREGATE VALUE OF ALL PAYMENTS OF THE ORDER VALUES MADE BY YOU IN THE PRECEDING TWELVE (12) MONTHS. WE FURTHER DISCLAIM ANY AND ALL LIABILITY RELATING TO A PATENT INFRINGEMENT ARISING OUT OF OR RELATING TO THE USAGE OF THE PRODUCTS HEREUNDER. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
You shall keep us, as well as our employees and agents indemnified against all costs, claims, demands, expenses and liabilities of any nature, including, without prejudice to the generality of the foregoing, claims of death, personal injury, damage to property and consequential loss (including loss of profit) which may be made against us or which we may sustain, pay or incur as a result of or in connection with the manufacture, sale, export, import or use of the products or provision of the services unless such costs, claims, demands, expenses or liabilities are directly and solely attributable to any breach of the Terms or guarantee by, or gross negligence of, us or our duly authorized employees or agents.
14. Use of Products.
Our products are intended only for laboratory use and, unless otherwise indicated on our invoice, other writings, or on product labels, are not to be used for other purposes, including but not limited to as, or a component in a food, drug, medical device (including in vitro diagnostic reagents) or cosmetics as defined in the Federal Food, Drug and Cosmetic Act ("FDA"), as amended, nor as a pesticide unless otherwise stated by us in writing furnished to you. You expressly represent and warrant to us that you will properly test, use, manufacture and market any products purchased from us and any final articles made from them in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with all applicable federal and state food, drug, device and cosmetic and other relevant laws and regulations, now and hereinafter enacted. You further warrant to us that any of our products shall not be adulterated or misbranded within the meaning of the FDA and shall not be products which may not be introduced into interstate commerce. You agree to comply with instructions, if any, furnished by us relating to the use of the products and not misuse the products in any manner. You acknowledge (a) that our products are small quantities solely for purposes of scientific experimentation, or analysis, or chemical research and intended only for laboratory use by technically qualified individuals, (b) that the products will be used only for such purposes, and by such qualified individuals and, (c) that some of our products may not be on the Inventory of Existing Chemical Substances defined pursuant to the Toxic Substances Control Act ("TSCA"). We assumes no responsibility to assure that products purchased hereunder may be used in a commercial application under the provisions of TSCA and regulations promulgated under TSCA. We will provide a Material Safety Data Sheet ("MSDS") to you which will inform persons using the product of the health risks which we have reason to believe may be associated with the product. You agree to inform your employees that some of our products may not be on the Inventory of Existing Chemical Substances defined pursuant to the TSCA and that a current MSDS is available to any and all employees or other personnel working, handling and/or in contact with or proximity to our products for which an MSDS is required. You agree that you will comply with all provisions of 29 C.F.R. Part 1910. If the products purchased from us are to be repackaged, relabeled, or used as starting material or components of other products, you will verify our assay of the product and accept its obligations to conform to the requirements of TSCA. You agree that you have the responsibility to verify the hazards and to conduct any further research necessary to learn the hazards involved in using products purchased from us. You shall also warn your employees, customers and any auxiliary personnel (such as freight handlers, etc.) of any risks involved in using or handling the products.
15. Force Majeure.
(a) We shall not be held responsible for failure to perform or delay in performing any of its contractual obligations if such failure or delay is due to unforeseeable events beyond our reasonable control ("Force Majeure"), including but not limited to acts of God, war, insurrection, epidemics, sabotage, labor disputes, strikes, lock-outs, shortages of labor, interruption or delays in transportation, fire, explosion, equipment or machinery breakdown, failure or delays of our source of supply, shortage in material or energy, acts, orders or priorities of any government, embargo and any other cause whether arising from natural causes, human agency or anything beyond our reasonable control.
(b) We shall notify you in writing within one (1) week following the occurrence of any event of Force Majeure citing this Section 15 in said notice and shall supply all relevant information about its effects on the performance under the Terms.
(c) Unless otherwise agreed in writing between the parties hereto, if we are unable to perform because of Force Majeure, we are temporarily excused from performance while the incident of Force Majeure is occurring and shall perform as soon as reasonably possible after the incident ends. The duration of the incident of Force Majeure shall be added to the time of performance granted to us. We shall not be subject to damage claims.
(d) In case the duration of Force Majeure exceeds six (6) months, the parties will have the right to terminate any order hereunder immediately. Contractual obligations performed up to such date of termination shall be remunerated. If the purchase price has been paid by you in full, we will refund the purchase price less the accrued cost and expenses of the contractual obligations.
16. Emerging Intellectual Property Rights.
Any and all intellectual property rights (copyrights, patent rights etc.) that are created during the performance hereunder are the exclusive property of us.
(a) Both parties hereto shall treat in strict confidence all information which is neither generally known nor generally accessible, and shall use it only for the purpose of fulfilling the respective responsibilities hereunder. The parties shall ensure the confidential treatment of all information relating hereto by their personnel and consulted specialists. In case of doubt, all information is to be treated confidentially.
(b) Confidential information of a party does not include information which; (i) was already known to the other party, before it was made accessible by the disclosing party, (ii) is or becomes generally known without the other party’s responsibility, (iii) was disclosed to the other party by a third party without any transfer restriction, (iv) was developed by the other party itself without using or referring to the confidential information of the protected party; and/or (v) has to be disclosed based on a legally binding decision of a court, administrative or other authority. In this case the party under the obligation to disclose shall inform the other party immediately about the decision and consider protective measures the other Party may want implement.
(c) This obligation of confidentiality already exists prior to the conclusion of the contractual relationship between the parties hereto and remains valid for a period of three (3) years after termination of the contractual relationship. Any information concerning a party's trade secret shall be kept confidential as long as such a trade secret remains valid.
(d) Notwithstanding the limitation set forth herein, we may disclose confidential information to its affiliates as well as subsidiaries, and enlisted specialists (lawyers, auditors, experts).
(e) Without the written approval of us, you may not advertise the fact that a collaboration between the parties exists or existed, and may not give us as a reference.
18. Compliance with Law.
The parties hereto comply with applicable law, regulations and legal standards.
You shall not assign any of its rights hereunder, except with the prior written consent of us. The preceding sentence applies to all assignments of rights, whether they are voluntary or involuntary, by merger, consolidation, dissolution, operation of law or any other manner. Any change of control transaction is deemed an assignment hereunder. Any purported assignment of rights in violation of this Section 19 is void.
Unless notice specifically allows email as provided in such section, all communications or notices required or permitted hereunder shall be in writing and shall be deemed to have been given (i) on the date of personal delivery to an officer of or personally to the other party, or (ii) the day following deposit when properly deposited for overnight delivery with a nationally recognized commercial overnight delivery service, prepaid, and addressed as provided in the Terms or order confirmation, unless and until either of such parties notifies the other in accordance with this Section 20 of a change of address.
No waiver by us of any of the provisions herein is effective unless explicitly set forth in writing and signed by us. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Terms operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Provisions of the Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration the relationship between you and us, including but not limited to Sections 11, 13, 14 and 17.
23. No-Third Party Beneficiaries.
The Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Terms
24. Governing Law.
Any claims, disputes or controversies arising between the parties hereunder shall be governed by and construed in accordance with the internal laws of the State of Georgia, without regard to conflicts of laws that would require the application of the laws of another jurisdiction.
25. Dispute Resolution.
The parties shall attempt to resolve any dispute, controversy, or claim arising under or relating to the Terms, or to a material breach, including its interpretation, performance, or termination. If the parties are unable to resolve such dispute, either party may refer the dispute to arbitration. The arbitration shall be conducted in accordance with the Commercial Rules of the American Arbitration Association, which shall administer the arbitration and act as appointing authority. The arbitration, including the rendering of the decision and/or award, shall take place in Atlanta, Georgia, and shall be the exclusive forum for resolving the dispute, controversy, or claim. The arbitrator shall make the final determination as to any discovery disputes between the parties. The award or decision of the arbitrator shall state the reasons upon which the award or decision is based, and shall be final and binding upon the parties. The prevailing party shall be entitled to compensation for the expense of the arbitration, including, but not limited to, the award of reasonable attorneys’ fees, at the discretion of the arbitrator. Both parties waive their right to any appeal under any system of law. The award shall be enforceable before any court of competent jurisdiction upon the application to such court by either party. The arbitrator shall have no authority to award any of the types of damages excluded by hereunder, and shall be so instructed by the parties.
If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.
27. Entire Agreement.
The Terms may only be amended or modified in a writing by an authorized representative of us.