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1. CONTRACT – These terms and conditions, together with any other supplemental written terms we give you pertaining to your order or service agreement, form a contract between you, the buyer of certain equipment (including parts and other merchandise), software license, and/or services (the "Buyer"), and us, the Mettler-Toledo entity identified on the quote, order acknowledgement, service agreement, invoice, or other order document we give you ("MT"). The rights and obligations identified in this contract apply to Buyer's purchase of the equipment, software license, and services identified in the MT order documents. If Buyer's order includes software subject to an end user license agreement ("EULA"), the terms of the EULA also apply and have priority over these terms. Terms and conditions that are different or changed from these only apply if both parties agree to them in writing. Terms or conditions included on Buyer's forms, including Buyer's standard terms and conditions of purchase and documents presented to MT's field service representatives, are not part of this contract. Buyer's receipt of equipment, software license, and/or services establishes its unqualified acceptance of these terms and conditions and any applicable EULA available at www.mt.com/legal.
2. GRANT OF LICENSE – If there is no EULA, MT grants Buyer a non-exclusive, non-sublicensable, and non-transferable right to use the software ordered for Buyer's internal purposes only. Buyer may not reverse engineer, decompile, or disassemble any software it licenses from MT.
3. QUOTATIONS, PUBLISHED PRICES, AND PRODUCT INFORMATION – Quotes and other offers of sale automatically expire 30 calendar days from the date issued unless otherwise stated, and unless MT withdraws the quote or offer earlier, which it may do any time prior to Buyer's acceptance of the quote or offer. Quotes and offers relating to custom equipment or software may rely on certain information and circumstances, including information Buyer provides. If information or circumstances on which a quote or offer relies change, MT may adjust its quote or offer. Published prices are not offers to sell and may be changed without notice. MT may change equipment or software specifications without notice unless it agreed to the specification(s) in writing. Prices do not include any taxes, shipping, packaging, handling, insurance, duties, inspection fees, permit fees, installation, or other costs or services unless otherwise specified in the MT order documents. MT may choose to accept or reject any order; MT will indicate order acceptance: (a) with a written order confirmation; or (b) by executing the order. Specific product characteristics, including but not limited to product weight, dimensions, value, return on investment, load, tolerance, and other technical data are not guarantees of those characteristics and are provided for information only. Buyer is not permitted to disclose any quotes, prices, specifications, or product information to any third party without MT's prior written consent.
4. TAXES – If local law requires MT to collect any tax from Buyer it will be added to Buyer's invoice and Buyer will be responsible to pay it, unless Buyer gives MT a valid tax exemption certificate. If an exemption certificate Buyer gives MT is later determined to be invalid, then Buyer will pay the previously unpaid tax.
5. TERMS OF PAYMENT – Payment terms are stated on the MT order documents. If no payment terms are stated, payment is due net 30 calendar days from the date of invoice. Buyer may not retain any payment it owes MT under this contract, or otherwise set-off any amount it owes MT under this contract, for disputed claims.
6. SHIPPING, HANDLING, AND DELIVERY – Shipping terms are stated on the MT order documents. If no shipping terms are stated, shipping is Ex Works. Delivery and service dates are estimates unless MT expressly agrees in writing to a fixed date or schedule. MT will use commercially reasonable efforts to meet delivery and service date estimates. All delivery and service dates are conditioned on MT's timely receipt of all necessary information and approvals. If Buyer causes a delay in delivery MT will store and handle all items at Buyer's risk, and will invoice Buyer for the unpaid portion of the contract price, plus applicable storage, insurance, and handling charges. MT may make partial shipments. MT will not accept responsibility for any shortages or damages unless Buyer retains all shipping containers and packing materials for inspection.
7. RETURNS – Equipment, or licenses on software, that is engineered, modified, customized, or configured especially for Buyer cannot be returned unless there is a valid warranty claim and the equipment or software cannot be repaired. Buyer cannot return equipment that is altered, damaged, used, or previously installed. Unless MT makes a shipping error or Buyer makes a valid warranty claim, unused off the shelf equipment may be returned only if Buyer contacts MT for approval and return instructions prior to returning anything. At its discretion, MT may charge Buyer a restocking fee for any return.
8. CANCELLATION – With MT's written approval, Buyer may cancel its order prior to the shipment of equipment or software, or prior to the beginning of a service contract. MT may cancel Buyer's order or require payment in advance if Buyer transfers assets for the benefit of its creditors, or if MT has reason to believe Buyer is unwilling or unable to perform its commitments. If Buyer cancels its order other than as permitted by this section, Buyer must pay MT all amounts due pursuant to the order. If Buyer's order is cancelled for any reason Buyer will pay MT for reasonable costs and expenses (including engineering expenses and all commitments to MT's suppliers and subcontractors) incurred prior to MT receiving notice of cancellation, plus MT's usual rate of profit for similar work. The minimum cancellation charge is 15% of the price.
9. CHANGES – Buyer may make changes to its order if MT consents in writing. To accommodate Buyer's request for changes MT may change pricing and delivery schedules. If MT performed work or purchased materials in anticipation of Buyer's order, and the change Buyer requests makes that work or materials unnecessary, Buyer is still responsible for paying for them.
10. SECURITY INTEREST – Buyer grants MT a purchase money security interest in the equipment and software license it purchases, acknowledges the validity of this grant, and agrees not to challenge the legitimacy of this grant. Buyer will assist MT in taking all necessary actions to perfect and protect MT's security interest. MT is entitled to any of the rights and remedies provided by law or in equity only if Buyer defaults on its obligations to MT.
11. WARRANTIES: ABSENT A SEPARATE WRITTEN WARRANTY MT ISSUES BUYER, MT EXPRESSLY WARRANTS ITS EQUIPMENT, SOFTWARE, AND SERVICES SOLELY AS SET FORTH IN THIS SECTION. TO THE FULLEST EXTENT ALLOWED BY LAW, MT DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). THESE WARRANTIES MAY BE TRANSFERRED TO A SUBSEQUENT PURCHASER OF EQUIPMENT OR A SUBSEQUENT LICENSEEE OF SOFTWARE ONLY WITH MT'S PRIOR WRITTEN CONSENT. IN ADDITION, THE FOLLOWING CONSTITUTES BUYER'S SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH BY MT OF THIS WARRANTY.
A. EQUIPMENT – MT warrants that under normal use: (i) its equipment, except for replacement parts, will be free from defects in workmanship and materials for one year from the date of original installation/use, or 18 months from the date it is shipped from MT, whichever occurs first; and (ii) replacement parts will be free from defects in workmanship and materials for 90 days from delivery. Should the defects described be found and reported during the term of the warranty, MT will, at its option, refund the purchase price, replace the equipment, or correct the defects by furnishing replacement parts and labor free of charge. Travel up to 80 kilometers (50 miles) from our nearest service representative or authorized service provider is free of charge for valid warranty claims.
B. SOFTWARE – If it is properly installed according to specifications and system requirements, MT warrants the software it develops will perform substantially the functions described in the software documentation it provides or, in the absence of any software documentation, as otherwise agreed in writing. MT does not warrant that the software is error-free, that Buyer will be able to operate the software without interruption, that third party interfaces or systems connected to the software will operate without interruption, or that the software will be free of vulnerability to intrusion or attack. Absent a separate warranty MT communicates to Buyer in writing, the warranty period for equipment operating software is the same as the warranty period for the equipment it's purchased with. The warranty period for any other software or software feature is 90 days from the date of delivery. For avoidance of doubt, our warranty includes bug fixing, but excludes any new features. Except as may be agreed otherwise in writing, MT provides no warranty for software specifically developed, amended, or customized for Buyer. These warranties also apply to any new releases and service MT may deliver in the future.
C. SERVICE – MT warrants that services will be performed in a workmanlike manner in conformity with standard industry practice. Should any nonconformity be detected within 30 days after the work is completed and Buyer gives MT prompt written notification, MT will supply the necessary service, direction, or consultation to correct the nonconformity.
D. GENERAL – The foregoing warranties are further subject to the following general conditions: (i) Consumables, accessories, normal wear and tear, wear parts, and perishables are expressly excluded. (ii) If Buyer requests warranty work during non-standard work times Buyer will be charged for premium time. (iii) These warranties do not apply where MT's equipment and/or software has been subjected to: accident, alteration, misuse, abuse, failure by Buyer to ensure proper storage, operation and/or maintenance, installation or servicing by personnel MT doesn't authorize, the addition or supply of equipment or software not approved for incorporation into MT equipment or software, environmental or operational conditions, or software or interfacing Buyer or a third party provide and any other causes MT is not responsible for. (iv) MT does not warrant the calibration of any equipment. MT does, however, warrant its equipment to be capable of being adjusted to meet MT's printed specifications, if any, for accuracy for the period of warranty above stated when properly installed and used. (v) Products of other manufacturers that MT sells are warranted by MT solely to the extent of any remaining warranty provided by the original manufacturer. (vi) If MT repairs equipment, such repair work will not extend existing nor generate new warranty coverage for the equipment as a whole or for those parts not repaired or replaced by MT. Unless Buyer gives MT written notice in advance, and MT agrees its warranty still applies, all warranties are void if product is moved outside the country MT delivered it to..
E. METHODS OF CORRECTION OF DEFECTS DURING WARRANTY – MT may attempt to diagnose and resolve defects over the telephone or electronically. Certain equipment contains remote support capabilities for direct problem reporting, remote problem determination, and resolution. When Buyer contacts MT for warranty work, Buyer must follow the problem determination, resolution, and procedure that MT specifies. MT may require return of the part or equipment to its depot for service or to assist in problem determination. If MT determines on-site work is required, a service technician will be scheduled. If Buyer gives MT notice of a defect and requests on-site work when the defect could have been remedied remotely, or if MT responds to Buyer's notice of defect and no defect is found for which MT is liable, MT is entitled to compensation for any work performed and costs it incurred as a result of Buyer's request. Failure to install and use available remote connectivity tools and equipment for direct problem reporting, remote problem determination, and resolution may result in increased response-time and additional costs to Buyer.
12. INDEMNITY – MT will pay Buyer for Buyer's losses that arise directly from a third party's bodily injury (including death) or damage to a third party's property if the injury or damage: (i) occurred in the course of MT's work; (ii) occurred on Buyer's property; and (iii) was exclusively caused by MT's negligent act or omission. Losses MT pays for may include reasonable legal fees and settlements of claim or suit. MT's obligation to pay for Buyer's losses arise only if Buyer gives MT prompt written notice of the loss, based on when Buyer should have reasonably anticipated the loss. If Buyer asks MT to pay for its loss it gives MT the sole and exclusive right to manage the defense of any claim related to it, and MT is authorized to settle or compromise such claims at its sole and exclusive discretion; and Buyer must cooperate in the defense of all claims as MT deems necessary.
13. PATENT INFRINGEMENT – MT will defend any suit brought against Buyer if it is based on a valid claim that equipment or software of MT's design that Buyer purchased under this contract, or any part thereof, constitutes an infringement of any applicable patent. MT's obligation arises only if: (a) Buyer promptly notifies MT of the claim, in writing, and gives MT the authority, information, and assistance necessary to defend the claim; and (b) the alleged infringement is not the result of a design or other special requirement specified by Buyer, or the result of the application or the use to which Buyer or others put the equipment or software. MT will pay all damages and costs finally awarded against Buyer only if MT has the exclusive right to defend, settle, or compromise the suit and Buyer takes no action that damages MT's ability to conduct an effective defense, settlement, or compromise. Upon receiving notice from Buyer of an allegation that equipment, software, or a part infringes any patent, MT may, at its expense and option, either: (i) obtain for Buyer the right to continue using such equipment, software, or part; (ii) replace the equipment, software, or part with non-infringing equipment, software, or part; (iii) modify the equipment, software, or part so that it becomes non infringing; or (iv) remove the equipment, software, or part and refund the purchase price and all related transportation and installation costs. This is MT's entire liability to Buyer for patent infringement.
14. REGULATORY LAWS AND OR STANDARDS – MT behaves in accordance with relevant laws. MT also takes reasonable steps to keep its equipment compliant with standards and regulations that may apply to Buyer's use of MT's products. However, MT's equipment is utilized in many regulated applications and from time to time applicable standards and regulations are in conflict with each other. MT makes no promise or representation that its equipment will conform to any laws, regulations, codes, or standards, except as explicitly specified and agreed upon in writing by an authorized officer. Buyer is responsible for the correct installation, operation, and calibration of the equipment in compliance with all applicable laws and regulations.
15. PRODUCT MANUALS – It is essential for Buyer to follow the installation information, product and system manuals, operating and safety instructions, and other documentation and specifications MT provides with the equipment; MT disclaims any liability, including warranty liability, if Buyer does not.
16. INTELLECTUAL PROPERTY – Unless MT expressly agrees in a writing to the contrary, MT does not transfer to Buyer any right of ownership in any patents, copyrights, trademarks, technologies, designs, specifications, drawings, or other intellectual property relating to the equipment, software, and/or services. Except as otherwise provided in an applicable EULA, the software license rights granted are non-exclusive, non-sublicensable, non-transferable, and limited to use for agreed purposes only.
17. DISCLAIMER OF DAMAGES –IN NO EVENT WILL MT BE LIABLE TO BUYER OR ANY OTHER PARTY FOR ANY TYPE OF SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER SUCH DAMAGES ARISE OUT OF OR ARE A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND REGARDLESS OF WHETHER THE CONTRACT WOULD FAIL OF ITS ESSENTIAL PURPOSE. Such damages include but are not limited to loss of profits or revenues, loss of use of the equipment or associated equipment and software, cost of substitute equipment or software, facilities, down time costs, increased construction costs, damage to reputation, loss of customers, or claims of Buyer's customers or contractors for such damages. Buyer may not transfer, assign, or lease the equipment or software sold or licensed under this contract to any third party without first securing from them the protection afforded to MT in this section.
18. LIMITATION OF LIABILITY – MT is not liable for any loss, claim, expense, or damage caused by, contributed to, or arising out of the acts or omissions of Buyer or third parties, whether negligent or otherwise. In no event will MT's aggregate liability for any and all types of damages or losses related to this contract or the equipment, software, or services sold, licensed, or delivered pursuant hereto exceed the cost of the item giving rise to the claim, whether based in contract, warranty, indemnity, or tort (including negligence). And any suit arising hereunder must be commenced within one year from the date on which the cause of action accrues.
19. NO RESPONSIBILITY FOR GRATUITOUS INFORMATION OR ASSISTANCE – Except for fraudulent misrepresentations, MT is not responsible for any information, assistance, or advice given to Buyer if such information, assistance, or advice was not required by this contract.
20. INSURANCE – Upon request, MT will provide reasonable evidence of insurance showing its standard coverage and limits or relevant sublimits. Buyer agrees to keep such information strictly confidential. MT does not provide third parties direct access to its insurance or give additional rights to its insurance, such as naming additional insured parties.
21. FORCE MAJEURE – Except for payments owed by Buyer, the period for performance of this contract will be reasonably extended if a party defaults or is delayed in performing their obligations under this contract, for reasons beyond their reasonable control. Strikes, insurrection, acts of God, war, terrorist activities, emergencies, shortages or unavailability of materials, weather, change in law, and other similar causes are among the reasons, but are not the only reasons, that are beyond a party's reasonable control.
22. EXPORT CONTROL - Buyer acknowledges that the equipment or software may include technologies and software that are subject to export control regulations in Europe, the United States of America, or other countries in which the equipment or software is delivered or used. Buyer is solely responsible for complying with these restrictions if it exports or re-exports the equipment or software. Buyer agrees to indemnify and hold MT harmless from any violation of export restrictions by Buyer or Buyer's employees, consultants, agents, or customers cause.
23. INTERPRETATION – If any of these terms and conditions conflicts with or is invalid under applicable law, these terms and conditions will be read as if such term or provision was not included. The invalid, illegal, or unenforceable provision will be deemed automatically modified and, as so modified, included in these terms and conditions. Such modifications will be made to the minimum extent necessary to make the provision valid, legal, and enforceable. MT's waiver or excuse of any noncompliance with these terms and conditions does not constitute a waiver or excuse of any prior or subsequent noncompliance.
24. GOVERNING LAW AND PLACE OF JURISDICTION – The performance of the parties to this contract, and the relationship between the parties, is subject to the applicable laws of the country where the Mettler Toledo office identified on the MT order documents is located; if the Mettler Toledo office identified on the MT order documents is located in the United States of America, the laws of the State of Delaware apply. The exclusive venue for claims arising under this contract is the court with competent jurisdiction nearest to the Mettler Toledo office identified on the MT order documents; if the Mettler Toledo office identified on the MT order documents is located in the United States of America, the courts of the State of Delaware are the exclusive venue. However, MT reserves the right to initiate court proceedings against Buyer at any other court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is explicitly excluded.
25. WEEE – When required by applicable law, MT will dispose of electrical and electronic equipment waste (WEEE) at Buyer's costs.
26. TRACEABILITY – Buyer acknowledges that MT is entitled to retrace or recall equipment, or take other corrective actions to the equipment. Buyer will actively support MT when this need arises. If Buyer resells equipment to a third party, it will be considered the distributor of the equipment under applicable laws and must assume all obligations relating thereto, including but not limited to the following: (i) keep all documents and information necessary to retrace or recall equipment sold to third parties for a minimum of 10 years; (ii) immediately inform MT of any complaints or adverse incidents related to the equipment, and promptly comply with all directions MT gives regarding the investigation or handling of the matter; and (iii) comply with all applicable storage and transportation duties.