Standard Terms and Conditions of Sale
Unless otherwise expressly agreed in writing by a duly authorized representative of. 5 Diagnostics (“5D”), the terms and conditions contained herein constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior communications and agreements. Acceptance by 5D of Purchaser’s order, or Purchaser’s acceptance of 5D’s proposal, is expressly limited to and conditioned upon Purchaser’s acceptance of these terms and conditions that may be changed or waived except in a writing signed by the parties. “Products” as used herein shall include products, parts and accessories furnished to Purchaser by 5D.
2. Delivery/Risk of Loss
Unless otherwise expressly agreed in writing, the Products shall be delivered F.O.B. point of shipment. 5D reserves the right to deliver in installments. Notwithstanding any agreement with respect to delivery terms or payment of transportation charges, risk of loss or damage for the Products shall pass to Purchaser and delivery shall be deemed to be complete upon delivery to a private or common carrier at the point of shipment. 5-Diagnostics reserves the right to decline orders and/or refer them to selected distributors.
Purchaser shall notify 5D, in writing, of any refusal to accept part or all of any shipment of Products delivered hereunder (including the reasons for any such refusal) within seventy-two (72) hours after delivery. Failure of such notice shall constitute Purchaser’s acceptance of the entire shipment. Upon any wrongful refusal of Purchaser to accept delivery, 5D at its election may retake or resell the Products and recover from Purchaser any damages suffered, including repossession, transportation, selling and advertising costs and the cost of any suit to enforce 5D’s rights hereunder.
Unless otherwise expressly agreed in writing, the price for the Products shall be 5D’s prevailing price at the time the Products are shipped to Purchaser. The price for the Products does not include any federal, state or local sales, use, excise, value added, gross receipts, or other like taxes which may now or hereafter be applicable to, measured by or imposed upon the Products, their purchase, sale, replacement, value or use, or any other services performed in connection therewith.
Unless otherwise expressly agreed in writing, payment is due thirty (30) days from the date of invoice. If payments are not made when due, Purchaser shall pay, in addition to the overdue payment, a late charge equal to the lesser of 1 1/2% per month or the highest applicable rate allowed by law on all such overdue amounts. Full legal and beneficial ownership of the products shall remain with 5D until 5D has received payment in full for the products.
6. Force Majeure
5D shall not be liable for loss, damage, or delay, nor be deemed to be in default from causes beyond its reasonable control or from acts of God, fire, strikes, labor difficulties, acts or omissions of any third party, any governmental authority or of Purchaser, defects or delays in the performance of its suppliers or subcontractors.
5D MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, WITH RESPECT TO THE PRODUCTS OR THEIR CHARACTERISTICS, QUALITY OR PERFORMANCE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF ANY INTELLECTURAL PROPERTY RIGHTS OF THIRD PARTIES AND ANY SUCH WARRANTIES OR REPRESENTATIONS ARE HEREBY EXPRESSLY DISCLAIMED.
8. Limitation of Liability
IN NO EVENT SHALL 5D BE LIABLE FOR SPECIAL INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE including, but not limited to, loss of profits or revenue, loss of use of the Products, delays, or claims of customers of the Purchaser or other third parties for such or other damages. 5D’s liability on all claims, whether in contract, warranty, negligence, tort, strict liability, or otherwise for any loss or damage arising out of, or connected with an order or the performance or breach thereof, or from the design, manufacture, sale, or delivery shall in no case exceed the purchase price of the Product.
9. Choice of Law
These Standard Terms and Conditions of Sale shall be governed and interpreted, and all rights and obligations of the parties shall be determined, in accordance with the laws of Switzerland, without regard to its conflicts of law principles.