Terms
1. Terms of Acceptance. Caliper will ship the ordered goods to YOU subject to this agreement and the associated pricing in effect at that time. “YOU” means the legal entity employing the individual person placing the order for these goods, except that if there is no such employer, then it means the individual person placing the order. Caliper’s failure to object to provisions contained in any purchase order or other form issued by YOU shall not be considered as a waiver of any terms of this agreement, nor an acceptance of any conflicting or additional terms in such document. This agreement, the associated price, and any specific terms of a purchase order or similar document that are consistent with this agreement or separately agreed to by Caliper in writing, shall constitute the entire agreement between the Parties, and shall supersede all other written or oral agreements, relating to this subject matter. If any provision is or becomes invalid or is ruled invalid by any court of competent jurisdiction or is deemed unenforceable, it is the intention of the parties that the remaining provisions shall not be affected so long as the essential benefits remain enforceable and obtainable.
2. Definitions. As used herein, the term “Product(s)” shall mean all items available for sale through this website that may be purchased by accepting the terms and conditions herein.
3. Delivery and Title. Delivery terms shall be F.O.B. point of distribution by Caliper. Identification of the Products shall occur when they leave Caliper’s point of distribution, at which time title and risk of loss shall pass to YOU. Caliper will make reasonable efforts to ship the Products in accordance with its standard lead times, provided that Caliper accepts no liability of any losses for general, special or consequential damages arising out of delays in delivery. YOU are responsible for ensuring availability and timeliness of proper storage upon delivery of Product(s), if applicable. If multiple Products are ordered, Caliper reserves the right to make delivery in installments, each separately invoiced and to be paid for when due.
4. Safety. YOU have the responsibility to conduct any research necessary to learn the hazards involved for any of your uses of the Products and to warn YOUR employees and any auxiliary personnel of any risks involved in using or handling the Products. The Products may be experimental in nature and may have unknown characteristics. YOU therefore agree to use prudence and all reasonable care in the use, handling, storage, transportation and disposition and containment of the Products, to comply with instructions for use of the Products, if any, not to misuse the Products, and to maintain them under suitable containment conditions in compliance with all applicable national, state and local laws, regulations, rules and ordinances.
5. Payments and Taxes. Amounts due are payable in U.S. dollars. In consideration for delivery of the Products, if YOU have not paid by credit card at Caliper’s on-line store, Caliper will bill YOU for the Products at the price in effect at the time of the order, plus shipping costs. YOU are responsible for any sales tax, use tax, excise tax, customs duty (including any applicable V.A.T. tax) or other tax imposed or levied on the transaction contemplated hereunder. If YOU are being billed, payment terms are net 30 days after the date of invoice. An interest charge equal to the lesser of 1 1/2% per month or the greatest amount allowed by law will be added to past due invoices. Caliper reserves the right, in its sole discretion, to require C.O.D. payment terms from YOU.
6. Warranty Disclaimer. The Product(s) shall conform to the terms of the applicable Caliper standard warranty as set forth in the documentation accompanying the Product. THE PRODUCTS ARE PROVIDED “AS-IS,” AND CALIPER MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO THE PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CALIPER DISCLAIMS ANY WARRANTY THAT THE PRODUCTS OR THE USE THEREOF WILL NOT INFRINGE ANY PATENT OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY. IN NO EVENT WILL CALIPER BE LIABLE UNDER ANY LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO, CONTRACT, NEGLIGENCE OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING LOST PROFITS), EVEN IF CALIPER HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. Customer’s remedies under Caliper’s warranty shall be limited to repair or replacement of the Product or component that fail to conform to Caliper’s standard warranty therefor.
7. Caliper’s Right of Possession. YOU hereby grant Caliper a purchase money security interest in the Products purchased by YOU in this website to secure the due and punctual payment of the purchase price specified. In the event of default by YOU in any payment due Caliper, Caliper shall have the right, in addition to any other remedies it may have at law or in equity, to set off any amounts owed by YOU to Caliper, to withhold shipment, to recall Products in transit and retake the same, to repossess any Products or goods which may be stored with Caliper for YOUR account, without the necessity of Caliper, initiating any other proceedings. In addition, Caliper shall have all of the rights and remedies of a secured party under the Massachusetts Uniform Commercial Code and may exercise all such rights and remedies in accordance therewith.
8. Indemnification. YOU agree to indemnify, defend and hold Caliper and its directors, officers, employees and agents (the “Indemnitee(s)”) harmless from and against any and all liabilities, claims, demands, expenses (including, without limitation, attorneys and professional fees and other costs of litigation), losses or causes of action (each, a “Liability”) arising out of or relating in any way to YOUR possession, propagation or use of the Products, whether based on negligence, product liability or otherwise, or any breach of this agreement by YOU, except to the extent, in each case, that such Liability is caused by Caliper’s gross negligence or willful misconduct as determined by a court of competent jurisdiction. Notwithstanding the above, YOU shall not enter into any settlement or other agreement that makes any admission of negligence or wrongdoing on the part of any Indemnitee without Caliper’s prior written consent. YOU agree to notify Caliper promptly of any incident of Liability or potential Liability.
9. Limitation of Liability. CALIPER SHALL NOT BE LIABLE FOR ANY LOSS, CLAIM, DAMAGE, OR LIABILITY OF ANY KIND THAT MAY ARISE FROM, OR IN CONNECTION WITH, USE OF THE PRODUCT(S). NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, ITS EMPLOYEES, REPRESENTATIVES, AGENTS, SUPPLIERS, OR SUBCONTRACTORS FOR ANY ANTICIPATED PROFITS OR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES REGARDLESS OF THE THEORY OF LIABILITY, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, A PARTY’S LIABILITY FOR ANY CLAIM ARISING DIRECTLY OR INDIRECTLY UNDER OR IN CONNECTION WITH THE ORDER REPRESENTED BY THIS QUOTATION SHALL IN NO EVENT EXCEED THE COST OF THE GOODS GIVING RISE TO THE CLAIM. NEITHER PARTY SHALL HAVE LIABILITY FOR PENALTIES OF ANY KIND.
10. Export. With respect to export of the Products from the United States, as well as use of the Products by foreign nationals, YOU are responsible for observing all applicable provisions of the International Traffic in Arms Regulations (ITAR), the Export Administration Regulations, Patriot Act and Bioterrorism Safety Act with respect to the Products and related technical data.
11. Applicable Law. The contract formed by acceptance of these terms shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts as applied to transactions taking place wholly within Massachusetts between Massachusetts residents.
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