TERMS EXCLUSIVE. The Terms and Conditions of Sale (“Terms”) contained herein shall apply to all quotations and offers made by, purchase orders accepted by Baytems and its affiliates and the purchase of products from Baytems, except to the extent the Terms conflict with any terms set forth in a quotation issued by Baytems, acknowledgement of any order issued by Baytems and/or any sales agreement signed by Baytems and Buyer. ANY OF BUYER’S TERMS IN ADDITION TO OR DIFFERENT FROM THOSE CONTAINED HEREIN, WHETHER CONTAINED IN A PURCHASE ORDER OR OTHER BUSINESS FORM OF BUYER, ARE HEREBY OBJECTED TO AND SHALL BE OF NO EFFECT UNLESS A SEPARATE AGREEMENT HAS BEEN SIGNED BY AN AUTHORIZED REPRESENTATIVE OF Baytems. Baytems’ failure to object to provisions contained in any communication from Buyer shall not be deemed a waiver of the provisions herein. “Buyer” shall mean a customer identified in the quote and the purchase order issued by Baytems. Buyer’s order and purchase of the products shall constitute acceptance of these Terms.
ORDERS. All orders are subject to acceptance by Baytems. Baytems’ booking of an order shall constitute its acceptance of an order. Changes to orders shall not be binding unless confirmed in writing by Baytems’ appropriate representative. Baytems shall have the right to cancel any order (i) if any representation made by Buyer to Baytems is false or misleading, (ii) in the event that Buyer becomes insolvent, adjudicated bankrupt, petitions for or consents to any relief under any bankruptcy reorganization statute, or becomes unable to meet its financial obligations in the normal course of business.
DELIVERY; ACCEPTANCE; TITLE. Shipment dates are scheduled after acceptance of the orders by Baytems and receipt of necessary documents. Buyer shall inspect all products promptly upon receipt thereof at the shipping destination. Products not rejected by written notification to Seller within 30 days after delivery of the product to the first carrier at Baytems factory and shall be deemed to have been accepted by Buyer on the 31th day after delivery of the product to the first carrier at Baytems factory. For products shipped in Finland risk of loss and title shall pass per the applicable Incoterms specified in the quotation issued by Baytems. For products shipped outside Finland (i) risk of loss shall pass per the applicable Incoterms specified in the quotation issued by Baytems and (ii) title shall pass upon delivery of the products to the Buyer. Baytems shall retain security interest and right of possession in the products until full payment is received by Baytems from Buyer.
PRICES; TAXES. Prices are subject to change at any time. If an order is acknowledged at domestic prices and products are for export outside Finland, Baytems reserves the right, in its sole discretion to cancel the order or charge Buyer the then current price for the product in the applicable country. In the event of any order for several units, each unit(s) will be invoiced when shipped. Product prices are exclusive of, and Buyer shall pay, all applicable sales, use, service, value added or like taxes, unless Buyer has provided Baytems with an appropriate exemption certificate that is acceptable to the taxing authorities of the delivery destination.
PAYMENT TERMS. Buyer shall make payment in full prior to delivery of products by cashier's check, letter of credit, cash in advance, credit card, or money order, unless Baytems approves Buyer for credit terms. Where payments are made by letter of credit, all charges and costs of collection shall be for Buyer’s account. If Baytems approves Buyer’s credit application, payment shall be due no later than 30 days from the date of Baytems’ invoice. All sums not paid when due shall accrue interest daily at the monthly rate of 1.5% on the unpaid balance until paid in full. Unless otherwise agreed to in writing, all payments are to be in Euros. In the event that Baytems is required to bring legal action to collect delinquent accounts, Buyer agrees to pay reasonable attorneys fees and costs of suit.
DELAYS IN PERFORMANCE. Delivery of all or any part of the products is contingent upon Baytems’ ability to obtain the products, other goods, parts, supplies, raw materials services, labor, power, and equipment through its regular and usual sources of supply. If by reason of any contingency beyond Baytems’ control, including (but not limited to) war, governmental requests, restrictions or regulations, fire, flood, casualty, accident, or other acts of God, strikes or other difficulties with employees, delay or inability to obtain goods, parts, supplies, raw materials, services, labor, power, and equipment, through Baytems’ usual sources, failure or refusal of any carrier to transport materials, delay in transport thereof, or any other similar occurrence, Baytems is not able to meet anticipated deliveries and shipment dates or perform its obligations, Baytems shall not be liable therefor and may, in its discretion without prior notice to Buyer, postpone the delivery date(s) under this document for a time which is reasonable under all the circumstances. Baytems shall make commercially reasonable effort to notify Buyer of the delay in meeting anticipated deliveries. Baytems shall make, and Buyer shall accept, deliveries of products when such causes have been remedied. In the event Baytems is unable to perform in whole or in part because of any excusable failure to perform, Baytems may cancel orders without any liability to Buyer.
LIMITED WARRANTY, BUYER’S
(a) Hardware. Baytems warrants to Buyer that each hardware product will be free from defects in material and workmanship for a period of 1 year from the date of delivery of the product to the first carrier at Baytems factory, with the following exceptions:
The warranty for the following items embedded, included or provided with the product shall be 90 days from the date of delivery of the Product to the first carrier at Baytems’ factory: probes, cables, optical fiber and rechargeable batteries.
Repaired and replaced parts are warranted for the balance of the original warranty or for at least 90 days after delivery of such repaired and replaced parts, whichever is greater.
This limited warranty is void if failure of the products has
resulted from accident, abuse, misuse, misappropriation, improper
calibration by Buyer, use of any third party software supplied by
Buyer, utilization of improper hardware or software or unauthorized
modifications, maintenance or repair. This limited warranty does not
apply to fuses, third party software and hardware, Proprietary
Software (as defined below), non-rechargeable batteries, damage from
battery leakage, problems arising from normal wear or failure to
follow instructions regarding installation, operation and
maintenance provided by Baytems, or to products that are in any way
altered or modified by Buyer or its agents or contractors after
delivery by Baytems. Baytems’ sole obligation and Buyer’s
sole remedy with respect to the foregoing Limited Warranty shall be
to, at its option, return the fees paid or repair/replace any
defective products, provided that Baytems receives written notice of
such defects during the applicable warranty period. NO ORAL OR
WRITTEN INFORMATION (INCLUDING INFORMATION PROVIDED IN BROCHURES,
WEBSITES, ADVERTISEMENTS) OR ADVICE GIVEN BY BAYTEMS OR ANY BAYTEMS
AUTHORIZED REPRESENTATIVE, AGENT OR DISTRIBUTOR WILL CREATE A
WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
(b) Software. All software that is embedded or incorporated in and/or provided with the products (“Proprietary Software”) is licensed to Buyer under the terms of the appropriate Baytems license and the standard warranty, if any, set forth in the applicable license agreement shall apply in case of any such Proprietary Software.
Repair Services: Baytems warrants that the repair and calibration services provided by Baytems (“Repair Services”), will be performed in a good and workmanlike manner. In the event that Baytems breaches this warranty, and Buyer so notifies Baytems within 90 days after completion of the applicable Repair Service, Buyer’s sole remedy and Baytems’ exclusive liability shall be to re-perform the Repair Services which were deficient in a manner so as to conform to the foregoing warranty, at no additional cost to Buyer.
Professional Services: Baytems warrants that any service other than Repair Service provided by Baytems, including but not limited to, any support and development services (collectively “Professional Services”), will be performed in a good and workmanlike manner. In the event that Baytems breaches this warranty, and Buyer so notifies Baytems within 30 days after completion of the applicable Professional Service, Buyer’s sole remedy and Baytems’ exclusive liability shall be to re-perform the Professional Services which were deficient in a manner so as to conform to the foregoing warranty, at no additional cost to Buyer.
The Repair Services and Professional Services are hereinafter collectively referred to as “Services”.
(a) Products covered under warranty. After examining and testing a returned product, if Baytems concludes that: (i) a returned product is defective, Baytems’ sole obligation and Buyer’s sole remedy with respect to the limited warranty shall be to, at Baytems’ option, either repair or replace the defective product or return the fees paid by Buyer for the product, or (ii) a returned product is not defective, Baytems will notify Buyer, the product will be returned to Buyer at Buyer’s expense, and a charge will be made for examination and testing. The defective product must be returned to Baytems within the warranty period. Buyer shall be responsible for shipping the defective product to Baytems and for all shipping costs of such defective products to Baytems.
(b) Non-defective Product Return. Standard products may be returned to Baytems within 30 days after delivery of the product to the first carrier at Baytems factory. All such product returns are subject to a 25% refurbishment and restocking fee. No returns will be accepted after such 30 day period has expired. Buyer shall be responsible for all shipping and shipping costs for all such products to Baytems and for all refurbishment and restocking fees. Special Equipment may not be returned to Baytems, unless terms of such return are agreed to in writing by Baytems. “Special Equipment” means any application specific product or any other product that is manufactured to or configured to Buyer’s specifications or requirements, which are not part of Baytems’ standard product line offered, including any modifications and configurations to the standard products made by Baytems based on Buyer’s specifications or requirements.
(c) Method of Return. Prior to returning any products covered under warranty or returned to Baytems pursuant to Section 8(b) above, Buyer must contact Baytems Instruments Sales Office or Corporate Headquarters to obtain a Return Material Authorization number. All products returned to Baytems must be securely packaged in the original shipping materials and reach Baytems without damage. The products must contain all software and accessories that were shipped to Buyer in connection with the product.
DISCLAIMER OF WARRANTY. EXCEPT AS SET FORTH IN SECTION 7, THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND. BAYTEMS DISCLAIMS AND EXCLUDES ALL OTHER EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR OTHER WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. BAYTEMS DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE RESULTS TO BE OBTAINED FROM THE SERVICES, THE USE OF OR THE RESULTS OF THE USE OF THE PRODUCTS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE AND DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE.
LIMITATION OF LIABILITY. THE ENTIRE LIABILITY OF BAYTEMS, ITS AFFILIATES AND THEIR LICENSORS, DISTRIBUTORS, AND SUPPLIERS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS IS SET FORTH IN SECTIONS 7, 8, 9 AND 10. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL BAYTEMS AND ITS LICENSORS, DISTRIBUTORS, AND SUPPLIERS (INCLUDING ITS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS) BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING, LOST PROFITS, LOST SAVINGS, LOSS OF DATA, BUSINESS INTERRUPTION, LOST BUSINESS INFORMATION, ARISING OUT OF THE PURCHASE, USE OR INABILITY TO USE THE PRODUCTS, EVEN IF BAYTEMS OR ITS LICENSORS, DISTRIBUTORS, AND SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BUYER ACKNOWLEDGES THAT THE APPLICABLE PURCHASE PRICE FOR THE PRODUCTS REFLECTS THIS ALLOCATION OF RISK. IN NO EVENT SHALL BAYTEMS’, ITS AFFILIATES AND SUBSIDIARIES TOTAL LIABILITY TO BUYER UNDER THE TERMS, FOR BAYTEMS’ PERFORMANCE, NONPERFORMANCE AND BREACH HEREUNDER AND ARISING FROM PURCHASE, USE OR INABILITY TO USE ANY PRODUCTS OR SERVICES PROVIDED TO BUYER BY BAYTEMS, EXCEED THE PRICE PAID BY BUYER TO BAYTEMS THAT IS ALLOCABLE TO THE PRODUCT, PART OR SERVICE WHICH GAVE RISE TO THE CLAIM. No accommodation by Baytems to Buyer, whether by attempt, effort or promise to repair or replace, and whether for sales policy or otherwise shall establish any additional liability of Baytems or any contract term inconsistent with the terms herein. A suit based on any cause of action must be commenced within one (1) year after the accrual of such cause of action.
SPECIAL EQUIPMENT. Buyer shall indemnify, defend, protect, and hold harmless Baytems and its affiliates against all suits at law or in equity and from all damages, expenses (including attorneys fees), costs, claims and demands related to or arising out of any (i) use, possession and/or delivery of any Special Equipment, and/or (ii) actual or alleged infringement of any copyright, patents or misappropriation of trade secrets resulting from or occasioned by (A) Baytems’ manufacture, sale and/or delivery of such Special Equipment, and/or (B) use, possession, sale or delivery of such Special Equipment by Buyer.
EXPORT LAWS. Buyer agrees to comply fully with all laws and
regulations concerning the purchase and sale of products. Baytems
reserves the right not to ship the products ordered if, at any time,
Baytems believes that such shipment may violate any export laws.
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