OXFORD INSTRUMENTS ASYLUM RESEARCH, INC.- TERMS AND
CONDITIONS OF QUOTATION AND SALE FOR
GOODS AND SERVICES VIA A WEBSITE
“AO” means the written confirmation of the order (if any) issued by the Company to the Purchaser following the order;
“Applicable Warranty Period” means in relation to any Goods the warranty period applicable to those Goods, subject to Sections 7.3 and 7.4 being either (i) 12 months commencing on the sooner of the date of acceptance of the Goods in question by the Purchaser or 90 days from shipment of the Goods in question or (ii) as otherwise notified in the Company’s relevant quotation or AO;
“the Company” means Oxford Instruments Asylum Research, Inc.;
“Contract” means the agreement between the Purchaser and the Company for the supply of the Goods and consisting of the documents referred to in Section 1.4 below;
“Goods” means the goods listed in the AO or which the Company otherwise agrees to supply to the Purchaser under the Contract;
“liability in relation to” means liabilities, losses, damages, costs (including without limitation legal costs on a full indemnity basis and taxes), expenses, actions, claims, proceedings and demands whatsoever arising directly or indirectly out of or in connection with;
“Purchaser” means the purchaser of the Goods as stated in any applicable AO;
“Price” means subject to these Terms, the price for the Goods as displayed on the Website and confirmed in any AO;
“Software” means any software used in the operation of the Goods; “Standard Specification” means the standard design of the Goods and/or layout of the Goods which is current at the time of the issue of an AO; and
“Website” means [https://afmprobes.asylumresearch.com/].
1.2 Any Contract provision invalid or unenforceable for any purpose shall be severed for that purpose but otherwise remain valid and enforceable and shall not affect the validity of the remainder of the Contract.
1.3 A payment shall be deemed made when credited to the payee’s bank account and is cleared funds.
1.4 Except as may be otherwise agreed in writing by the Company, the Contract shall comprise solely these Terms and any AO. In the event of any inconsistency these Terms shall prevail. Variations of the Contract shall be effective only if agreed in writing and will then prevail over these Terms.
1.5 English is the authentic text of the Contract and all notices or other communications under or relating to it shall be in writing in English. Any translation will be for guidance only.
2.1 The display of the Goods on the Website is not an offer and may be withdrawn or modified; except as otherwise agreed in writing by the Company, no contract or commitment shall exist until the Company sends its AO to the Purchaser.
2.2 The Company may alter the specification of any Goods if such alteration does not materially affect their performance or utility.
2.3 The Company may vary the design, materials or method of construction of the Goods as it reasonably considers appropriate in order to improve performance, design or construction; to respond to availability of various materials or components; or to comply with any safety or regulatory requirements. No such variation shall materially alter the size or proportions or materially worsen the performance of the Goods. The Company shall promptly notify the Purchaser of any such variations and if reasonably practicable shall consult with it upon any variations which are not immaterial.
2.4 If any variation in the Goods or the Contract is agreed or is required for compliance with any applicable law, regulation or safety recommendation, the Purchaser shall pay such additional amount as is fair and reasonable and the Company shall have reasonable additional time to perform the Contract.
3.1 Subject to any AO, the Price shall exclude sales tax and any other applicable taxes and duties, packaging, carriage, insurance, documentation and installation charges. Unless costed for in any AO, the Company may make reasonable additional charges for complying with any special requirements of the Purchaser, Payment, subject to any AO, shall be made in U.S. Dollars at the Company’s office in California, clear of any banking transaction charges and without deduction, set off or counterclaim.
3.2 The Price shall be paid when the order is placed by the Purchaser via the Website. The monies will not be taken from the Purchaser’s account until the Goods are dispatched.
4.1 Title to the Goods shall not pass until payment has been made in accordance with Section 3 of these Terms.
4.2 Risk of damage to or loss of the Goods shall pass to the Purchaser upon the Company first dispatching the Goods from its premises unless any AO specifies otherwise.
5.1 The estimated date for delivery of the Goods shall be set out in the AO. Except as otherwise agreed in writing by the Company, delivery of the Goods shall be made by the Company from its premises and so informing the Purchaser or, if some other place for delivery is stated in any AO, by the Company or its nominated carrier dispatching the Goods from its premises to the stated place. If the Purchaser fails to take delivery or to give adequate delivery instructions, the Company may (without prejudice to its other rights) store or dispose of the Goods, in which case the Purchaser shall pay to the Company upon request the amount of any reasonable storage or disposal charges. While the Company will seek to meet the stated delivery time, it is approximate and the Company shall not incur liability in relation to late delivery. If no time for delivery is agreed, the Purchaser shall accept the Goods when ready for delivery.
5.2 The Company may deliver Goods in installments constituting separate contracts and delay in delivery of any installment will not entitle the Purchaser to terminate the Contract, nor permit the set off of any payments in respect of one delivery against any claim in respect of any other delivery. Where Goods are delivered by installments, the Company may issue separate invoices.
5.3 Any delivery times quoted by the Company for the Goods are approximate and shall not be binding upon the Company.
5.4 Should the Purchaser wish to vary a delivery schedule, it shall make a request in writing to the Company. Rescheduling restrictions apply and the Company is not obligated to accept a request for a reschedule delivery of Goods. If the Company agrees in writing to amend a delivery schedule, charges may apply. Such charges shall be applied at the time the re-schedule is agreed.
Unless the Company will issue or has issued an acceptance certificate, the Purchaser shall inspect and test the Goods and within 7 days of their delivery, shall give written notice to the Company of any damage or claim. In the absence of such notice, the Goods shall be deemed to comply with the Contract and the Purchaser shall accept them. The Goods are sold as a batch and without prejudice to the Purchaser’s right to reject all the Goods the Purchaser may not reject only some of the Goods.
7.1 If, within the Applicable Warranty Period, any Goods prove defective by reason of faulty design, workmanship or materials the Company will adjust, repair or replace them as it sees fit free of charge, provided that:
(a) the Purchaser gives written notice of the defect (with reasonable relevant information) to the Company as soon as reasonably practicable and within the Applicable Warranty Period;
(b) the Goods have been used solely for their proper purpose and in accordance with the operating instructions;
(c) the defect has not been caused by fire, accident, misuse, neglect, incorrect installation by the Purchaser or its customers, agents or servants, unauthorised alteration, repair or maintenance or the use of sub-standard consumables and has not arisen from fair wear and tear;
(d) the defect has not arisen from any design, specification, component or material supplied by or on behalf of the Purchaser;
(e) no part of the Goods has been replaced with a part not supplied or approved by the Company;
(f) payment in full of all amounts due in respect of the Goods has been made;
(g) the Purchaser shall be liable for any costs incurred by the Company in responding to claims caused by operator error or incorrect application or other default of the Purchaser or other third party;
(h) the Purchaser shall accord the Company sufficient access to the Goods to enable its staff to inspect and adjust, repair, remove or replace the Goods;
(i) the costs of all consumables shall be paid by the Purchaser.
7.2 The Company may repair the Goods in situ or have them returned to its premises; if the latter, the risk in the Goods shall at all times remain the Purchaser’s and they shall be packaged as the Company instructs and dispatched at the Purchaser’s expense. Costs of carriage on the Goods’ return to the Purchaser shall be borne by the Company where the defect is covered by the warranty in this Section 7.
7.3 If the Goods incorporate goods or services provided by a third party, the obligations of the Company in respect of such goods or services shall not exceed the warranty obligations of such third party to the Company nor exceed any time limit upon those obligations.
7.4 The Applicable Warranty Period for any Goods replaced or repaired or any corrective services pursuant to the initial warranty shall be the remaining period, if any, of such initial warranty period.
7.5 This limited warranty is in lieu of any other warranty, whether express or implied, written or oral (including, without limitation, any warranty of merchantability, fitness for a particular purpose or non-infringement) with respect to the goods, the manufacture, sale, supplying or failure or delay in supplying of the goods or the use, results or disposition of the goods. The Company expressly disclaims all warranties (whether express or implied, written or oral) with respect to the results obtained from the goods. The Company does not warrant that the use of the goods shall be uninterrupted or error-free.
8.1 In an effort to keep the contract price as low as possible or any consequential, special, indirect, exemplary or punitive damages and as the purchaser is better able than the Company to quantify loss which it may suffer from a breach of contract and to insure accordingly, the purchaser agrees to the Company limiting its liability and therefore agrees that except as expressly agreed in writing or as mandatorily implied by law:
(a) the Company shall have no obligation in respect of the Goods except for its undertaking in Section 7 above (the ”Warranty”) and as expressly stated in the Contract;
(b) if the Company has repaired or replaced the Goods pursuant to the Warranty it shall have no further liability in respect of such defect or fault in the Goods unless a repair or replacement or proper performance is not possible in which case the Company’s liability shall be limited to refunding any monies paid in respect of such defective Goods;
(c) the Purchaser acknowledges that the Company’s obligations and liabilities in respect of the GOODS are exhaustively defined in these Terms and that such express obligations are in lieu of and to the exclusion of any other warranty, condition, term, undertaking or representation of any kind, express or implied, statutory or otherwise relating to the GOODS including, without limitation, as to the condition, quality, performance or fitness for the purpose of the GOODS or any part of them,
(d) the Company shall not be liable for any loss which represents or which is loss of profit, revenue, benefit, anticipated savings or goodwill, loss of use of any asset, loss of data, business interruption, management costs or third party liability or any consequential, indirect, special, exemplary or punitive damages.
8.2 The aggregate liability of the Company (whether in contract, tort, breach of statutory duty or otherwise) for all breaches under or non-performance of its obligations or contemplated by any contract shall not exceed a sum equal to one and a half times the amount paid for any goods the subject of such contract except that this shall not limit or exclude any liability of the Company which cannot be effectively excluded in law.
8.3 The Purchaser shall not rely upon any representation concerning the Goods unless made by the Company in writing in the Contract except that nothing in the Contract or these Terms shall exclude liability for fraudulent misrepresentation.
8.4 Except to the extent of any warranty stated or expressly confirmed in the AO (and so far as permitted by law), the Company shall have no liability in respect of any failure by the Goods to recognise date changes and the Purchaser shall satisfy itself in all such respects.
8.5 Any liability of the Company under any warranty, indemnity or other obligation stated or confirmed in the AO is subject to all exclusions and limitations in these Conditions.
9.1 The Purchaser represents that it is not a Restricted Party, which shall be deemed to include any person or entity: (1) located in or a national of Cuba, Iran, Libya, North Korea, Sudan, Syria, or any other countries that may, from time to time, become subject to U.S. export controls for anti-terrorism reasons or with which U.S. persons are generally prohibited from engaging in financial transactions; (2) on the U.S. Department of Commerce Denied Person’s List, Entity List, or Unverified List; U.S. Department of the Treasury list of Specially Designated Nationals and Blocked Persons; or U.S. Department of State List of Debarred Parties; (3) engaged in activities involving nuclear materials or weapons, missile or rocket technologies, or proliferation of chemical or biological weapons; or (4) affiliated with or a part of any non-U.S. military organization.
9.2 The Purchaser shall strictly comply with all applicable export laws, controls and regulations. The Purchaser shall not export, re-export, divert, transfer or disclose, directly or indirectly, any Goods or related technical data, materials or documents or any product thereof to any Restricted Party or to any country (or any national or resident thereof) which the U.S. Government determines from time to time is a country (or end-user) to which such export, re-export, diversion, transfer or disclosure is restricted, without obtaining the prior written authorization of the Company and the applicable U.S. Government agency.
10.1 The Company may terminate separately all or any of the Contract and every other contract with the Purchaser if:
(a) the Purchaser fails to make payments to the Company under any contract as they fall due or the Purchaser otherwise breaches any such contract and the breach or non-payment is not remedied within seven (7) days of notice from the Company; or
(b) the Purchaser undergoes dissolution, termination of existence, liquidation, insolvency or business failure, or a custodian or receiver is appointed for the Purchaser or any part of the property of the Purchaser if such appointment is not terminated or dismissed within thirty (30) days; or
(c) the Purchaser institutes any proceeding under the United States Bankruptcy Code or any other federal or state bankruptcy, reorganization, receivership, insolvency or other similar law affecting the rights of creditors generally or the making by either party of a composition or any assignment or trust mortgage for the benefit of creditors; or
(d) a proceeding is instituted against the Purchaser under the United States Bankruptcy Code or any other federal or state bankruptcy, reorganization, receivership, insolvency or other similar law affecting the rights of creditors generally, which proceeding is not dismissed within thirty (30) days of filing; or
(e) control of the Purchaser passes from the present shareholders, owners or controllers to other persons whom the Company in its absolute discretion regards as prejudicial to its reasonable interests; or
(f) in the reasonable opinion of the Company the Purchaser has ceased or threatened to cease to operate in the normal course of its business; or
(g) where the Purchaser is an individual or partnership, he or any partner dies or any steps are taken with a view to making a bankruptcy order against him or any partner.
10.2 If the Contract is terminated, the Company (without prejudice to its other rights but subject to any relevant mandatory laws) may do any of the following:
(h) declare immediately payable (and so interest-bearing under Section 3.2) any sums owed by the Purchaser, proceed against the Purchaser for the same and/or damages, and appropriate any payment by the Purchaser as the Company thinks fit (notwithstanding any purported appropriation by the Purchaser);
(i) suspend further performance of any Contract and/or any credit granted to the Purchaser on any account (and the time for delivery by the Company shall be extended by the period of such suspension);
(j) take possession of and deal with (including the sale of) any materials and other assets of the Purchaser held by or on behalf of the Company and apply any proceeds of sale in payment of any sums owing under or damages arising in connection with any Contract including any interest and costs arising thereon.
11.1 All inventions, designs, copyrights and processes and all and any other intellectual / industrial property rights whether or not registered or registerable and all goodwill associated thereto relevant to the Goods and all specifications, designs, programs or other material issued by or on behalf of the Company shall, as between the Company and the Purchaser remain the absolute property of the Company. The Purchaser shall not acquire any right or interest in the same except, if the AO so requires, the Company shall grant or procure the grant of a licence to (i) use relevant software with the Goods to or at the direction of the Purchaser.
11.2 The Purchaser acknowledges that all specifications, design, programs or other material including know-how, plans, drawings and price lists issued by or on behalf of the Company are confidential and agrees not to use them or any other confidential information of the Company for any purpose (other than the purpose for which the information was disclosed) nor reproduce them in any form nor disclose them to third parties. The Purchaser shall not seek to abstract from the Goods any confidential information regarding their design, construction or otherwise (and without limiting the foregoing shall not decompile any software comprised in the Goods) and all rights subsisting in such material are reserved.
11.3 The Purchaser shall obtain similar undertakings as those set out in sub-Sections 11.1 and 11.2 from its customers and indemnify the Company against any liability in relation to any failure to do so. The Purchaser shall upon request sign and/or require its customers to sign the software vendors form of non-exclusive licence to use programs necessary to operate the Goods; all obligations of the Company under any contract are conditional upon execution of such agreement and compliance with its terms.
11.4 All Software is licensed and not sold by the Company. The Company hereby grants to the Purchaser a non-exclusive, non-transferable licence to use the Software solely for the purposes of operating the Goods for their proper designed purpose, but the Purchaser shall have no right to access or use the source code of the Software and shall not copy all or part of the Software unless otherwise expressly agreed in writing by the Company
11.5 All intellectual property and other rights of whatever nature in the Software and the documentation for it are and shall remain the property of the Company or the software vendor.
The Company shall not be liable for any failure to perform its obligations hereunder by reason of any cause whatsoever beyond its reasonable control (including without limitation trade dispute; fire, flood or act of god; armed conflict; equipment or supply difficulties; any rule or action of any public authority; transportation delays; refusal or delay in granting any necessary licence or permit; or any repudiatory event by the Purchaser). In such circumstances it may terminate the Contract whereupon the Purchaser shall pay a sum equal to the costs to the Company of performing the Contract and the Company’s liability shall be limited to repayment of any sums paid in respect of undelivered Goods less such costs.
13.1 The Purchaser shall:
(a) procure that the Goods (including any goods the subject of services) are used only for the purposes and in the manner for which they were designed and supplied; that all persons likely to use or come into contact with the Goods receive appropriate training and copies of applicable literature supplied by the Company; that all third parties who use or may be affected by or rely upon the Goods are given full and clear warning of any hazards (both patent and latent) associated with them or limitations of their effectiveness and that safe working practices are adopted and complied with. Any warning notices displayed on the Goods must not be removed or obscured; the Purchaser shall procure that any third party to whom the Goods are supplied agrees not to remove or obscure such warning notices and shall take such steps as are reasonable to enforce such agreement;
(b) promptly comply with any safety recommendation made to it in respect of the Goods (including recall of them) and shall procure compliance by all relevant persons and shall pay the Company’s reasonable charges for additional or replacement parts (including installation costs) supplied by the Company for this purpose;
(c) maintain and make available to the Company all records necessary to enable Goods to be traced to their ultimate buyer or user; and
(d) indemnify the Company against any liability in relation to any breach of the Purchaser’s obligations under this Section 13.1.
14.1 The Company shall not be liable for any defect, wastage or other loss whatsoever in, of or arising from equipment, hardware or software or other items (in this Section, “equipment”) supplied or made available to the Company by the Purchaser, which equipment shall be held, worked on and used at the Purchaser’s risk. Quantities of equipment supplied by the Purchaser shall allow for normal spoilage and fair wear and tear.
14.2 The Company shall not be responsible for any loss, damage, cost or expense arising from, or from any defect, mistake or inaccuracy in any equipment specified or supplied by the Purchaser. Any loss, damage, cost or expense arising therefrom shall be for the sole account of the Purchaser who shall indemnify the Company accordingly.
14.3 The Company’s liability for equipment specified or provided to the Company by the Purchaser or otherwise held or worked on by the Company on behalf of the Purchaser shall be limited to the lesser of the basic raw material cost of the equipment or an independent external valuation of such equipment.
14.4 Prior to its delivery to the Company or to the Company being granted access to it the Purchaser shall notify the Company of the nature of any equipment to be held or worked on by the Company under the Contract, shall provide adequate warnings and instructions where such equipment is or may be hazardous to safety and shall ensure that it complies with any requirements or descriptions of or in the Contract.
14.5 The Purchaser shall indemnify the Company for any liability in relation to such equipment which could not have been prevented by the Company acting in accordance with the Purchaser’s reasonable written instructions and was not caused by the negligence or willful default of the Company or its employees.
14.6 The Purchaser shall indemnify the Company against any liability in relation to the contamination, damage or loss (due to contact with any radioactive, chemical or other hazardous materials or by the negligence of the Purchaser or its representatives) of any instruments, components, parts or materials brought by the Company to the Purchaser’s premises for the purposes of performance of the Contract.
15.1 The Purchaser shall indemnify the Company against all liability in relation to any specification, design, information or component which the Purchaser has supplied or arranged for the supply to the Company and warrants that the use of such specifications, designs, information or components will not infringe the rights of any third party.
15.2 No indulgence, forbearance, partial exercise of any right or remedy or previous waiver shall prejudice any rights or remedies. Remedies shall be cumulative and no choice of remedy shall preclude any other remedy.
15.3 The Purchaser shall not assign, mortgage, charge, sub-let or otherwise dispose of the Contract or any rights thereunder in whole or in part.
15.4 After termination (howsoever caused) or cancellation, Sections 4, 8, 11, 13 and 15 shall continue in full effect.
15.5 This Contract and any disputes between the Purchaser and the Company relating to the subject matter of this Contract shall be governed by and construed in accordance with the laws of the State of Massachusetts, excluding: (i) its conflicts of laws principles that would apply the laws of any other jurisdiction; (ii) the United Nations Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods; and (iv) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980.
15.6 The Company and the Purchaser each hereby irrevocably submits to the exclusive jurisdiction of the federal and state courts located in the State of Massachusetts. The Purchaser hereby irrevocably waives any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding relating to this Agreement in Massachusetts and further irrevocably waives any claim that Massachusetts is not a convenient forum for any such suit, action or proceeding.