- COMPLETE TERMS.
Sales and quotations by GS-Tek, a Delaware Corporation are governed by these Standard Terms and Conditions of Quotation and Sale (“Terms and Conditions”). This is an offer conditioned on GS-Tek’s customers’ (“Buyers”) acceptance of all, and only, these Terms and Conditions. This is the final and complete expression of all Terms and Conditions of the agreement. Any representations, promises, warranties, or statements that are not contained here are void. These Terms and Conditions can be modified, waived, or amended only by a written instrument signed by officers both Buyer and GS-Tek.
Orders will be initiated by Buyer issuing a purchase order (“Order”) to GS-Tek. Orderswill identify equipment manufactured, assembled, or otherwise produced by GS-Tek (“Product”), unit quantities, part numbers, descriptions, applicable prices and requested delivery dates. Orders can be submitted via telephone, mail, fax, email, or GS-Tek internet website.
- QUOTATION OF PRICE.
All written quotations of price (“Quote”) made by GS-Tek will be valid for a period of thirty (30) days without exception from time Quote has been generated by GS-Tek. GS-Tek will make every reasonable effort for timely delivery of Quote to customer however GS-Tek does not assume responsibility for delays in receipt of quotations to Buyer unless otherwise stated hereunder in these Terms and Conditions. GS-Tek under any circumstance will not honor or provide verbal quotations of price.
- TERMS OF PAYMENT.
Terms of payment shall be as set forth on GS-Tek’s documentation acknowledging Buyer’s Order or documentation provided to Buyer upon Buyer’s receipt of Products (“Invoice”). If Buyer fails to pay any sum owed hereunder when due, interest shall accrue to GS-Tek’s credit on such sum at the rate of 1½% compounded per month or the highest rate allowed by law, whichever is lower. If GS-Tek, in its sole discretion, finds it necessary to employ an attorney to collect any past due sum owed hereunder, it may collect, in addition to any other sum owed hereunder, all applicable attorney’s fees and costs. Credit cards accepted are MasterCard, Visa and American Express. COD orders have no minimum and must be paid with certified funds (certified check, money order or cashier’s check). Payment of any additional COD charges or shipping charges as a result of COD by carrier will be the sole responsibility of the Buyer. There is a $25.00 service charge on all returned checks.
Buyer may, without charge, cancel an Order for standard Products provided such order has not begun production and if cancellation request is received fourteen (14) business days prior to delivery date. Buyer requests to cancel an order for standard Products already in production or if written notice of cancellation is received by GS-Tek less than fourteen (14) days prior to delivery date in writing may be accepted by GS-Tek in its sole discretion, which acceptance will be subject to Buyer’s payment of reasonable termination charges as determined by GS-Tek. Buyer may not cancel or terminate any non-standard Products, except with written consent from GS-Tek and only then upon payment of reasonable termination charges as determined by GS-Tek.
Buyer may return Product to GS-Tek up to thirty (30) days after delivery to Buyer’s shipping address for any reason as long as Product has not been used. Upon approval by authorized GS-Tek personnel used Products may be returned to GS-Tek, by Buyer, for return. These used Products must not be damaged and must be returned in as-new, re-sellable, condition based upon inspection by authorized GS-Tek personnel. A refund totaling 85% of the returned instrument’s full purchase price will be given to Buyer via method of GS-Tek’s choosing within thirty (30) days. All returned items, including accessories, are subject to a 15% restocking fee.
- FINANCIAL RESPONSIBILITY.
Any credit terms offered by GS-Tek are available only for so long as Buyer complies with all of its obligations under these Terms and Conditions, including, without limitation, the provisions requiring timely payment of Invoices within stated terms. If credit terms are no longer available, Buyer shall pay cash in advance for all purchases. If GS-Tek shall have any doubt at any time as to Buyer’s financial responsibility, GS-Tek, at its option and its sole discretion, either may (a) decline to make further shipments except upon receipt of cash in advance or upon giving of other security satisfactory to GS-Tek, or (b) terminate this sale. Nothing in this paragraph is intended to affect the obligation of Buyer to accept and pay for the Products.
- NO DEDUCTION.
Buyer shall not be entitled to deduct from the price invoiced to it by GS-Tek the amount of any claim asserted by Buyer against GS-Tek, unless such claim shall have been allowed, in writing, by GS-Tek. The provisions of the preceding sentence are of the essence of this sale.
- LIMITED WARRANTY.
THE WARRANTIES SET FORTH IN ATTACHMENT A OF QUALITY ARE EXTENDED IN LIEU OF AND TO THE EXCLUSION OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE BELOW WARRANTIES RUN ONLY TO THE BUYER HEREUNDER; THEY ARE NOT INTENDED TO, AND DO NOT, RUN TO ANY SUBSEQUENT BUYER, NOR MAY THEY BE TRANSFERRED TO ANY OTHER PERSON, UNLESS OTHERWISE SPECIFICALLY STATED IN WRITING BY AN OFFICER GS-TEK.
GS-Tek warrants to the original purchaser that for thirty days from the date of shipment the instruments manufactured by GS-Tek shall be free from defects in materials and workmanship. Under this warranty the product will be replaced or replaced at manufacturer’s option, without charge for parts or labor when the product is carried or shipped prepaid to the factory together with proof of purchase. The foregoing shall constitute the exclusive and sole remedy of the purchaser for any breach by GS-Tek of this warranty. This warranty does not apply to any equipment which has not been installed and used in accordance with the specifications recommended by GS-Tek for the proper and normal use of the equipment. Buyer agrees hereunder that GS-Tek reserves the right to void any warranty, written or implied, if upon GS-Tek’s examination of Product shall disclose to GS-Tek’s satisfaction that the Product did not fail due to accident, misuse, neglect, abuse, alteration, improper installation, unauthorized replace or improper testing by Buyer or agent of Buyer. GS-Tek shall not be liable under any circumstances for indirect, special, consequential, or incidental damages in connection with, or arising out of, the sale, performance, or use of the equipment covered by this warranty. GS-Tek does not recommend, warrant or assume responsibility for the use of its products in medical applications or systems. GS-Tek’s warranties are herein above set forth shall not be enlarged, diminished or affected by, and no obligation or liability shall arise or grow out of GS-Tek’s rendering of technical advice in connection with Buyer’s order of the Products furnished hereunder.
Continued use or possession of Products after expiration of the applicable warranty period stated above shall be conclusive evidence that the warranty is fulfilled to the full satisfaction of Buyer. GS-Tek makes no warranty as to experimental, non-standard or developmental Products.
- EXCLUSIVE REMEDIES.
If the Products furnished by GS-Tek fail to conform to GS-Tek’s exclusive LIMITED WARRANTY, GS-Tek’s sole and exclusive liability shall be (at GS-Tek’s option) to replace or credit Buyer’s account for any such Products which are returned by Buyer during the applicable warranty period set forth above, provided that (i) GS-Tek is promptly notified in writing upon discovery by Buyer that such Products failed to conform to this contract with a detailed explanation of any alleged deficiencies, (ii) such Products are returned to GS-Tek, F.O.B. GS-Tek’s plant, and (iii) GS-Tek’s examination of such Products shall disclose to GS-Tek’s satisfaction that such alleged deficiencies actually exist and were not caused by accident, misuse, neglect, abuse, alteration, improper installation, unauthorized replace or improper testing. If GS-Tek elects to replace or replace such non-conforming Products, GS-Tek shall have a reasonable time to make such replaces or replace such Products. GS-Tek also reserves the right, at its sole discretion, to credit the Buyer’s account of any shipping charges in whole or in part incurred by the Buyer associated with the return of Products to GS-Tek’s plant. THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF GS-TEK AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN REGARD THERETO, AND IN NO EVENT SHALL GS-TEK BE LIABLE FOR SPECIAL, COLLATERAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
- PRODUCT RETURNS.
All returns will be processed at the sole discretion of GS-Tek. Buyer is deemed to have accepted the Products unless written notice of rejection is received by GS-Tek within twenty one (21) days after delivery. Buyer waives any right to reject or revoke acceptance thereafter. Buyer is responsible for all shipping costs to return Products to GS-Tek’s plant. Any loss or damage of Product during shipping from Buyer’s plant to GS-Tek’s plant will be the sole responsibility of the Buyer. GS-Tek strongly suggests that Buyer purchase insurance from carrier to insure Products during shipping. Products must be returned in new condition with all previously included paperwork and accessories.
- DATA ERRORS AND OMISSIONS.
GS-Tek makes every effort to ensure the accuracy of the information published in its catalogs, by its distributors and on its Internet site. The documents and graphics published may contain technical inaccuracies or typographical errors. GS-Tek makes no representations about the information and graphics presented. All such documents and graphics are provided “as-is” without warranty of any kind.
Buyer agrees to hold harmless, indemnify, and defend GS-Tek and any of its employees, directors, officers, agents, or successors from any and all fault, liabilities, costs, expenses, claims, demands or lawsuits asserted by any person or entity that the warranties, remedies, limitations, disclaimer of warranties and liabilities of GS-Tek are other than that as specifically set forth herein or by reason of any warranty, express or implied, or remedy for breach of warranty extended by Buyer, which is more favorable than the warranties and remedies set forth herein.
- PRODUCT APPLICATION INDEMNIFICATION.
Buyer agrees to indemnify and hold harmless GS-Tek and any of its employees, directors, officers, agents or successors from any and all fault, liabilities, costs, expenses, claims, demands or lawsuits, whether arising in tort or contract, against Buyer and/or GS-Tek, including Attorney’s fees, expenses and costs, arising out of the application of GS-Tek’s Products to Buyer’s designs and/or Products, or GS-Tek’s assistance in the application of GS-Tek’s Products.
GS-Tek shall defend any suit or proceeding brought against Buyer insofar as such suit or proceeding is based on a claim that any Products manufactured and supplied by GS-Tek to Buyer constitute direct infringement of any duly issued United States patent and GS-Tek shall pay all damages and costs finally awarded therein against Buyer, provided that GS-Tek is promptly informed and furnished a copy of each communication, notice or other action relating to the alleged infringement and is given authority, information and assistance (at GS-Tek’s expense) necessary to defend or settle said suit or proceeding. GS-Tek shall not be obligated to defend or be liable for costs and damages if the infringement arises out of compliance with Buyer’s specification (s), or from a combination with, an addition to, or a modification of the Products after delivery by GS-Tek, or from use of the Products, or any part thereof, in the practice of a process. GS-Tek’s obligations hereunder shall not apply to any infringement occurring after Buyer has received notice of such suit or proceeding alleging the infringement unless GS-Tek has given written permission for such continuing infringement. If the infringement by Buyer is alleged prior to completion of delivery of the Products under this contract, GS-Tek may decline to make further shipments without being in breach of this contract, and provided GS-Tek has not been enjoined from selling said Products to Buyer, GS-Tek agrees to supply said Products to Buyer, at Buyer’s option, whereupon the patent indemnity obligation herein stated with respect to GS-Tek shall reciprocally apply with respect to Buyer. If any suit or proceeding is brought against GS-Tek based on a claim that the Products manufactured by GS-Tek in compliance with Buyer’s specifications and supplied to Buyer directly infringe any duly issued United States patent, then the patent indemnity obligations herein stated with respect to GS-Tek shall reciprocally apply with respect to Buyer.
THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF GS-TEK FOR PATENT INFRINGEMENT AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN REGARD THERETO, AND IN NO EVENT SHALL GS-TEK BE LIABLE FOR SPECIAL, COLLATERAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
GS-Tek warrants it has and will convey Products and marketable title to the Products.
- CONFIDENTIAL INFORMATION.
GS-Tek and Buyer mutually agree to hold confidential or proprietary information or trade secrets (“Confidential Information”) in trust and confidence without restriction and mutually agree that Confidential Information shall be used only for the contemplated purposes, shall not be used for any other purpose, or disclosed to any third party unless GS-Tek or Buyer can document said Confidential Information (a) is in the public domain through no fault of either GS-Tek or Buyer, (b) was properly known to receiving party, without restriction, prior to disclosure by disclosing party, (c) was properly disclosed to receiving party by another person or entity or (d) has been subpoenaed or officially requested by a court of law or other duly authorized agent of the court. Confidential Information may be furnished in any tangible or intangible form including, but not limited to, writings, drawings, presentations, computer tapes and other electronic media, samples, demonstrations, video and verbal communications. This provision shall survive the expiration, termination or cancellation of this Agreement.
Delivery shall be F.O.B. GS-Tek’s plant (unless otherwise specified on documentation acknowledging Buyer’s order), whereupon title shall pass to Buyer. Every effort will be made to effect delivery at the desired time, but delivery dates are not guaranteed.
- SHIPMENT DAMAGE.
Product shipped from GS-Tek’s manufacturing location is carefully packed in compliance with carrier requirements. Claims for loss or damage in transit must be made with the carrier by Buyer. All shipments should be fully unpacked and inspected immediately upon receipt. It is important to keep the shipping carton, packing material and all parts intact for inspection by the carrier’s agent. Visible Loss or Damage. Any external evidence of loss or damage must be noted on the freight bill or carrier’s receipt and signed by the carrier’s agent. Failure to do this may result in the carrier refusing to honor the claim.
- DELAYS, CONTINGENCIES AND FORCE MAJURE.
In the event GS-Tek is forced to shut down or curtail its production or is unable to ship at the time specified because of fire, flood, windstorm, or other act of God, accident, fire, explosion, labor disturbance, act of any government or any agency or subdivision thereof, judicial action, sabotage, insurrection, riot or other act of civil disobedience, act of a public enemy, technical failure, shortage of raw materials, labor, machinery, energy, or transportation, including, but not limited to, railcar shortages or any cause whether or not similar to the causes listed above, beyond GS-Tek’s reasonable control, GS-Tek reserves the right, at its option, to cancel this order (in either case without any liability to GS-Tek or Buyer whatsoever). In no event shall GS-Tek be obligated to purchase material from others to enable GS-Tek to deliver Products to Buyer hereunder. During the period of such contingency, GS-Tek shall have the right to allocate its available supply among its buyers in GS-Tek’s sole discretion.
Buyer will be in default if (a) Buyer fails to pay to GS-Tek any amount when due under this agreement, (b) Buyer fails for a period of five days after receiving written notice from GS-Tek to fulfill or perform any provisions of this agreement (other than the prior provision relating to due date of payments), (c) Buyer becomes insolvent or bankrupt, or a petition therefore is filed voluntarily or involuntarily and not dismissed within thirty days from filing, or (d) Buyer makes a general assignment for the benefit of its creditors, or a receiver is appointed, or a substantial part of Buyer’s assets are attached or seized under legal process and not released within thirty days thereafter. Upon Buyer’s default, GS-Tek may, at its option, without prejudice to any of its other rights and remedies, and without demand for payments past due, (a) make shipments subject to receipt of cash in advance, (b) terminate this agreement and declare immediately due and payable the obligations of Buyer for Products previously shipped, notwithstanding any other provision in these terms and conditions, (c) demand reclamation of unpaid Product, or (d) suspend any further deliveries until the default is corrected, without releasing Buyer from its obligations under this agreement. In any event, Buyer shall remain liable for all loss and damage sustained by GS-Tek because of Buyer’s default.
All sales tax, excise taxes, or other forms of taxes levied against this transaction shall be paid by Buyer over and above all other sums Buyer is or may become obligated to pay hereunder. These taxes are in addition to the purchase price of the Products subject to an order. If you are exempt from tax, an original signed tax exemption certificate must be sent to GS-Tek. Without a valid signed tax exemption certificate on file at GS-Tek, all applicable taxes will be charged to the Buyer.
All debts and obligations of Buyer and GS-Tek to each other are mutual and subject to setoff. For purposes of this paragraph, “Buyer” and “GS-Tek” shall be deemed to include each party’s respective subsidiaries and affiliates which directly or indirectly control or are controlled by that party through 100% equity ownership.
- GOVERNING LAW.
VENUE AND JURISDICTION. All issues concerning the formation, performance, or interpretation of any contract regarding this sale shall be governed by the laws of the state of Delaware, and any dispute between GS-Tek and Buyer will be resolved in Newark, Delaware, the prevailing party in that dispute entitled to its costs and reasonable attorneys’ fees.
- SEVERABILITY OF TERMS.
If any phrase, clause or provision shall be declared void, the validity of any other provisions shall not be affected thereby.