The following terms and conditions (“Terms and Conditions”) shall apply to the sale of JULABO Subscription® by Julabo USA, Inc. (“Provider”) to the entity shown as Subscriber (“Subscriber”) on Subscriber’s purchase order (“Purchase Order”) or on Provider’s invoice or quote, as applicable.
1. Subscriber’s Acceptance of Provider’s Terms and Conditions. Provider’s acknowledgement and acceptance of the Purchase Order is made expressly conditional upon Subscriber’s assent to the Terms and Conditions and upon no other terms and conditions. Subscriber’s assent to the Terms and Conditions shall be conclusively presumed from the first to occur of (i) Subscriber’s execution of a credit application respecting credit with Provider; or (ii) Subscriber’s execution of any other document containing the Terms and Conditions; or (iii) Subscriber’s acceptance of delivery of any product ordered from Provider. Provider hereby objects to and rejects any terms or conditions at variance with, different from or additional to the Terms and Conditions unless such terms and conditions are hereafter set forth in a writing signed by Provider. Anything herein to the contrary notwithstanding, no amendment to, or waiver, modification or deletion of, the Terms and Conditions shall be deemed effective unless any such amendment, waiver, modification or deletion, as the case may be, shall have been approved and accepted in writing by an officer of Provider. Subscriptions are available only to subscribers located within the United States.
2. Prices. All prices will be adjusted to Provider’s prices in effect as of the date of shipment. The method of delivery and routing shall be at Provider’s discretion.
3. Taxes. Provider’s prices do not include any sales, excise or value-added taxes, import/export duties, licenses, insurance or any other federal, state or local taxes or any other government fees or charges. All of such taxes shall be calculated based on Subscriber’s delivery address. Subscriber shall be solely responsible for the payment of any sales, excise or value-added taxes, import/export duties, licenses, insurance or any other federal, state or local taxes or any other government fees or charges.
4. Payment. The terms of payment shall be as stated on the Equipment Subscription Agreement. If the full amount of each invoice is not paid by its due date, any amount outstanding shall accrue a service charge of 1.5% per month (subject to applicable law) until any such amount outstanding is paid in full. Accrued and unpaid service charges shall be added monthly to the outstanding balance due upon which such service charges accrue (and additional service charges shall accrue on the service charges so added), to the maximum extent permitted by applicable law.
Provider is authorized to apply toward any payment of any monies due Provider hereunder any sums now or hereafter owed by Provider (or any entity affiliated with Provider) to Subscriber (or any entity affiliated with Subscriber).
5. Delivery. Delivery will be made in accordance with Provider’s regular production schedule. Provider shall be excused from any failure to perform due to any actions, events, conditions, inactions or any other cause beyond Provider’s control in the reasonable operation of its business. Any and all delivery dates given by Provider constitute good faith estimates only. Provider shall not be liable for any failure to meet any specific shipping or delivery date as long as Provider acts in good faith.
6. Shortages and/or Defective or Damaged Materials. Any alleged shortages and/or defective or damaged products received by Subscriber in connection herewith must be reported in writing by Subscriber to Provider within three (3) days of receipt of such products.
7. Warranty Provisions. Provider’s Warranty Provisions are incorporated herein by reference.
8. Order Changes and Cancellation Policies.
A. Order Changes. No changes to Subscriber’s order may be made at any time without the Provider’s express, written consent, which may be granted or withheld in Provider’s sole discretion. In the event that Subscriber requests a change, and such change is approved by Provider, then Subscriber agrees to pay a fifteen percent (15%) change order fee, which fee may be imposed at Provider’s discretion based upon the total order value.
B. Cancellation Policies. Subscriber may not cancel any order for products without Provider’s express, written consent, which may be granted or withheld in Provider’s sole discretion. Any request to cancel an order, if approved by Provider, will incur a cancellation fee in the amount of twenty-five percent (25%) of the total order value, which fee may be imposed at Provider’s discretion based upon the total order value.
Provider may cancel Subscriber’s order, or any part thereof, upon the occurrence of any of the following events (“Events of Default”): (i) Subscriber fails to fully perform any of its obligations under the Terms and Conditions; or (ii) Provider, in its reasonable opinion, believes that Subscriber’s ability to perform the Terms and Conditions is in danger or impaired. If an Event of Default occurs, Provider shall be entitled to all rights and remedies set forth in the Pennsylvania Uniform Commercial Code and all other remedies available at law or in equity and the remedies herein reserved by Provider shall be cumulative and in addition to any other legal or equitable remedies.
9. Returns and Restock Fees. Requests to return unused product need to be approved by Provider. Any approved returns made if within sixty (60) days of shipment shall be subject to a restock charge of the residual lease rate for the full six months of the subscription at Provider’s sole discretion.
10. Indemnification. Subscriber assumes the entire responsibility and liability for, and agrees to release, indemnify, defend and hold harmless Provider, its affiliates and their respective officers, agents, employees, successors, and assigns, from and against any and all losses, expenses (including without limitation, reasonable attorneys’ and other professional fees), costs, damages (including consequential and incidental damages), demands, liabilities, suits and claims in connection with or arising out of any actual or alleged personal injury (including death) or damage or destruction to property (including loss of use) by whomsoever suffered, sustained or alleged to have been sustained by reason of (i) any act, error or omission, whether negligent or not, of Subscriber or its agents, employees, suppliers, subcontractors and consultants, provided that such injury, death, damage or destruction is not occasioned by the sole negligence of Provider or its agents, employees and subcontractors, or (ii) any failure of Subscriber or its agents, employees, suppliers, subcontractors, or consultants to comply with any applicable law.
11. Assignment. Subscriber shall not assign (by operation of law or otherwise) any of its rights or obligations hereunder without the prior written approval of Provider. The Terms and Conditions shall be binding upon and inure to the benefit of the parties hereto and their successors and permitted assigns.
12. Entire Agreement. These Terms and Conditions constitute the entire understanding between the parties with respect to the subject matter hereof, superseding all negotiations, prior discussions and preliminary agreements, if any. Neither of the parties relied on any promises or representations made by the other or any third party, whether written or oral, including any advertising material, as an inducement to enter into this agreement, except as may appear herein. No course of prior dealings between the parties and no usage of trade shall be relevant to supplement or explain any term herein. Provider’s acceptance or acquiescence in a course of performance rendered by Subscriber hereunder shall not be relevant to determine the meaning of this agreement even though Provider has knowledge of the nature of the performance and opportunity for objection.
13. Severability. If any term, covenant or condition of this agreement, or the application thereof to any person or circumstance, shall, to any extent, be invalid or unenforceable, the remainder of this agreement or the application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term, covenant or condition of this agreement shall be valid and shall be enforced to the fullest extent permitted by law.
14. Governing Law. The Purchase Order and the Terms and Conditions and all questions relating to their validity, interpretation, performance, and enforcement shall be construed in accordance with, and shall be governed by, the substantive laws of the Commonwealth of Pennsylvania without regard to its principles of conflicts of law. The Court of Common Pleas of Lehigh County or the Unites States District Court for the Eastern District of Pennsylvania shall have exclusive jurisdiction over any action arising hereunder. Anything herein to the contrary notwithstanding, any lawsuit brought by Subscriber against Provider, whether based on contract, tort or any other legal theory of recovery must be commenced within one (1) year from the date when the alleged cause of action accrued.
15. Attorneys’ Fees. In the event that Provider must institute a lawsuit against Subscriber to collect any monies that it is due hereunder or pursuant to any purchase order for products, or if Provider successfully defends against a lawsuit instituted by Subscriber against it hereunder, whether based on contract, tort or any another theory, then Provider shall be entitled to its costs and expenses, including reasonable attorney’s fees, incurred in connection with any such lawsuit.
16. Waiver. Any failure of the part of Provider to insist on strict compliance with the Terms and Conditions shall in no way constitute a waiver of such right. No claim or rights arising out of a breach of the Terms and Conditions by Subscriber may be discharged in whole or in part by a waiver of the claim or right, unless the waiver is in writing signed by an authorized representative of Provider. Provider’s waiver or acceptance of any breach by Subscriber of any provisions of the Terms and Conditions shall not constitute a waiver of or an excuse for nonperformance as to any other provision of the Terms and Conditions nor as to any prior or subsequent breach of the same provision.
17. Headings. The descriptive headings of the several sections of the Terms and Conditions are inserted for convenience only and shall not be deemed to affect the meaning or construction of any of the provisions hereof.
18. Warnings. Subscriber acknowledges that certain dangers including explosions, burns, and fires, may be associated with the misuse, improper installation or operation, unauthorized or improper repair, replacement, or alteration or unreasonable use or abuse of the product or the failure to follow the product’s written installation or operating instructions.
19. Installation. If Subscriber purchases, and/or receives the Installation and Operator Training service, then Subscriber must prepare the Julabo products and the intended installation site according to the Pre-Installation Checklist, incorporated herein by reference, prior to the agreed upon installation date.
20. Lawful Use. Provider’s goal is to conduct its business in a lawful manner and its expectation of Subscriber is to use equipment in a manner that conforms to governing law. Provider reserves the right to refuse to sell, to void warranty or refuse service of equipment that will not be used in a lawful manner.
WARRANTY PROVISIONS
The following Warranty Provisions shall apply to products sold in North America by Julabo USA, Inc. (“Provider”) to the entity shown as Subscriber (“Subscriber”) on Provider’s invoice.
1. Initial Warranty. Upon Provider’s receipt of payment in full for the products and subject to Subscriber’s compliance with the terms of sale and any other agreement with Provider relating to the products, Provider warrants to the Subscriber that the products manufactured by the Provider are free from defects in material and workmanship for a period not to exceed two (2) years from the date the product is shipped by Provider to Subscriber (the “Initial Warranty”).
2. EXCLUSION OF ALL OTHER EXPRESS WARRANTIES; EXCLUSION OF ALL IMPLIED WARRANTIES. OTHER THAN THE INITIAL WARRANTY, NO OTHER EXPRESS WARRANTIES ARE MADE. ALL IMPLIED WARRANTIES OF EVERY TYPE AND KIND, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, ARE EXCLUDED IN ALL RESPECTS AND FOR ALL PURPOSES. PROVIDER DISCLAIMS AND MAKES NO IMPLIED WARRANTIES WHATSOEVER.
3. Out of Box Failure Remedy. Should it be required, an Out of Box Failure (OBF) for an end user is defined as a product failure immediately following unpacking and installation of a newly delivered product. JULABO USA provides a 14-day grace period from date of receipt of shipment at address specified on the purchase order of record with JULABO USA, during which time the delivered product must be checked for defect. The same exclusions that apply to the regular warranty also apply to OBF classification.
4. Exclusions. The Initial Warranty does not include damage to the product resulting from accident, misuse, improper installation or operation, unauthorized or improper repair, replacement or alteration (including but not limited to repairs, replacements, or alterations made or performed by persons other than Provider’s employees or authorized representatives), failure to provide (or use of improper) maintenance, unreasonable or unintended use or abuse of the product, or failure to follow written installation or operating instructions. Subscriber must return the product’s record of purchase to the Provider or one of Provider’s authorized representatives within thirty (30) days of the date the product is shipped by Provider to Subscriber in order to make a claim under the Initial Warranty. Notwithstanding anything contained herein to the contrary, all glassware, including but not limited to reference thermometers, are expressly excluded from the Initial Warranty.
Bath Fluids. Bath fluids are subject to the same Initial Warranty of two (2) years from the time of receipt, if unopened (seal not broken). Bath fluids should be inspected for contamination at the time of receipt before the seal is broken. If the fluid appears to be contaminated, Provider must be notified within 14 days of receipt, and an exchange or refund will be provided. If the seal is broken and fluids poured into a bath and contamination is then discovered, the Initial Warranty for the bath fluid may be invalidated, at Provider’s discretion.
Additional Exclusions. The initial warranty does not include damage resulting from the use of improper or unauthorized cleaning/descaling agents. Provider recommends the use of fusionchef™ by Julabo Descaling Agent (Order # – 9FX1171) in all situations unless otherwise noted by the Provider’s employee or Provider’s authorized representative. Most other industrial/commercial descaling agents have a pH level that is too low (too acidic) and may cause damage to critical unit components.
5. Subscriber’s Sole Remedies; Limitations on Provider’s Liability. Subscriber’s sole and exclusive remedy under the Initial Warranty is strictly limited, in Provider’s sole discretion, to either: (i) repairing defective parts; or (ii) replacing defective parts. In either case, the warranty period for the product receiving a repaired or replaced part pursuant to the terms of the Initial Warranty shall not be extended. All repairs or replacements performed by Provider pursuant to these Warranty Provisions shall be performed at one of the Provider’s facility in Allentown, Pennsylvania, U.S.A. or at the facility of an authorized representative of Provider, which location shall be determined by Provider in its sole discretion; provided, however, that Provider may, in its sole discretion perform such repairs or replacements at Subscriber’s facility in which case Subscriber shall pay Provider’s travel, living and related expenses incurred by Provider in performing the repairs or replacements at Subscriber’s facility. As a condition precedent to Provider’s obligation to repair or replace a product part under the Initial Warranty, Subscriber shall (i) promptly notify Provider in writing of any such defect; (ii) shall have returned the product’s record of purchase to Provider or to Provider’s authorized representatives within thirty (30) days of the date the product is shipped by the Provider; and (iii) assist Provider in all respects in its attempts to determine the legitimacy and basis of any claims made by or on behalf of Subscriber including but not limited to providing Provider with access to the product to check operating conditions. If Subscriber does not provide such written notice to Provider within the Initial Warranty period or fails to return the product’s record of purchase as set forth above, Provider shall have no further liability or obligation to Subscriber therefor. In no event shall Provider’s liability under the Initial Warranty exceed the original purchase price of the product which is the subject of the alleged defect.
THE REMEDIES PROVIDED IN THE INITIAL WARRANTY ARE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO THE SUBSCRIBER. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AND EVEN IF THE SOLE AND EXCLUSIVE REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE FOR ANY REASON WHATSOEVER, IN NO EVENT SHALL PROVIDER BE LIABLE FOR SUBSCRIBER’S MANUFACTURING COSTS, LOST PROFITS, GOODWILL, OR ANY OTHER SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES TO SUBSCRIBER OR ANY THIRD PARTY AND ALL SUCH DAMAGES ARE HEREBY DISCLAIMED.
6. Assignment. Subscriber shall not assign any of its rights or obligations hereunder without the prior written approval of Provider; provided, however, that if Subscriber is a distributor of Provider, the rights and obligations of Subscriber under these Warranty Provisions shall inure to the benefit of and be binding upon Subscriber’s customers who provide the product’s proof of purchase to Provider pursuant to the terms set forth herein. Provider may assign any or all of its rights or obligations hereunder without Subscriber’s prior consent.
7. Governing Law. The Warranty Provisions and all questions relating to their validity, interpretation, performance, and enforcement shall be construed in accordance with, and shall be governed by, the substantive laws of the Commonwealth of Pennsylvania without regard to its principles of conflicts of law.
8. Waiver. Any failure of the part of Provider to insist on strict compliance with the Warranty Provisions shall no way constitute a waiver of such right. No claim or rights arising out of a breach of the Warranty Provisions by Subscriber may be discharged in whole or in part by a waiver of the claim or right, unless the waiver is in writing signed by an authorized representative of Provider. Provider’s waiver or acceptance of any breach by Subscriber of any provisions of the Warranty Provisions shall not constitute a waiver of or an excuse for nonperformance as to any other provision of the Warranty Provisions nor as to any prior or subsequent breach of the same provision.
9. Freight. Provider will arrange and pay for shipping and handling charges for the unit to be returned to the Provider. Provider will arrange and pay for shipping and handling for the return of the unit to the Subscriber.
10. Julabo Shield – Extended Warranties.
General Conditions. All of the terms and conditions of sale and Warranty Provisions are applicable to Julabo Shield Extended Warranties.
A. Extension of Initial Warranty – New Products. Provided that Subscriber is not in default of any of its obligations, the Julabo Shield Extended Warranty will continue throughout the Subscription Term to a maximum of not greater than six years from the Commencement Date.
B. Extension of the Initial Warranty for Refurbished Products and for new Products after expiration of the Initial Warranty Term. An Extended Warranty may be purchased for refurbished units during the Term of their Initial Warranty and for new units after the expiration of their Initial Warranty Term on the following terms and conditions: (i) unit eligibility for the Julabo Shield Extended Warranties shall be at the sole discretion of the Provider; (ii) conditions of eligibility include, but are not limited to, the environment in which the unit has been operated, the condition of the unit, the age of the unit, the ability to run the unit on site, the ability to test the unit on site, and the ability to obtain an open flame/hot permit on site; (iii) evaluation of the unit shall take place at Provider’s location and Subscriber shall be responsible for freight to and from Provider’s location; (iv) if the Subscriber requests evaluation of the unit to take place at the Subscriber’s location, Provider may, but shall not be required, to provide such evaluation, subject to Subscriber’s payment of all costs of Provider’s travel expenses associated with performing the evaluation at Subscriber’s location; and (v) the Provider reserves the right to refuse to provide a Shield Extended Warranty for any product in its sole discretion.
(01/31/2024)