Terms & Conditions of Sale for PolyScience Products

This document sets forth the Terms & Conditions of Sale for goods manufactured and/or supplied, and services provided, by PolyScience (a division of Preston Industries, Inc.) of Niles, IL ("PolyScience") and sold to the original purchaser thereof ("Buyer"). Unless otherwise specifically stated in a written agreement signed by authorized representatives of PolyScience and Buyer, these Terms & Conditions of Sale establish the rights, obligations and remedies of PolyScience and Buyer which apply to this offer and any resulting order or contract for the sale of PolyScience’s goods and/or services ("Products").

1. TERMS & CONDITIONS

These Terms & Conditions of Sale are contained directly and/or by reference in PolyScience’s offer, order acknowledgment, and invoice documents. The first of the following acts constitutes an acceptance of PolyScience’s offer and not a counteroffer and creates a contract of sale (“Contract”) in accordance with these Terms & Conditions: (i) Buyer’s issuance of a purchase order document against PolyScience’s offer; (ii) acknowledgement of Buyer’s order by PolyScience; or (iii) commencement of any performance by PolyScience pursuant to Buyer’s order. Provisions contained in Buyer’s purchase documents (including electronic commerce interfaces) that materially alter, add to or subtract from the provisions of these Terms & Conditions of Sale are not a part of the Contract.

2. CANCELLATION:

Buyer may cancel orders for standard products (subject to a deduction for PolyScience’s expenses including handling, inspection, restocking, and freight), provided that Buyer returns such goods to PolyScience at Buyer’s expense within 30 days of delivery and in the same condition as received. Custom products including Chillers that are 3 HP in size and larger and PC boards are non-cancelable and non-returnable.

3. DELIVERY:

Delivery will be accomplished EXW PolyScience’s facility located in Niles, IL, United States (Incoterms 2010). PolyScience will use commercially reasonable efforts to deliver the Products ordered herein on the date specified on the Contract or, if no time is specified, within PolyScience’s normal lead-time.

4. INSPECTION:

Buyer will promptly inspect and accept any Products delivered pursuant to this Contract after receipt of such Products. In the event the Products do not conform to any applicable specifications, Buyer will promptly notify PolyScience of such nonconformance in writing. PolyScience will have a reasonable opportunity to repair or replace the nonconforming product in its sole discretion, and which shall be Buyer’s only recourse for such nonconformance. Buyer will be deemed to have accepted any Products delivered hereunder and to have waived any such nonconformance in the event such a written notification is not received by PolyScience within thirty (30) days of delivery. In the case that Buyer discovers or suspects freight damage, Buyer shall cease unpacking, request immediate inspection from the carrier responsible for delivery, and notify PolyScience of the damage.

5. PRICES & ORDER MINIMUM:

All prices are in U.S. dollars and are based on delivery as stated above. Prices do not include any charges for insurance; brokerage fees; sales, use, inventory or excise taxes; import or export duties; special financing fees; VAT, income or royalty taxes imposed outside the U.S.; consular fees; special permits or licenses; or other charges imposed upon the production, sale, distribution, or delivery of Products. Buyer will either pay any and all such charges or provide PolyScience with acceptable exemption certificates, which obligations survive performance under this Contract.

Each order must be at least US$25.00.

6. PAYMENTS:

All payments must be made in U.S. dollars. For Internet orders, the purchase price is due at the time and manner set forth at www.polyscience.com. Invoices for all established accounts are due and payable according to the payment terms agreed upon and from the date of the invoice without regard to delays for inspection or transportation. All payments are to be made by check to PolyScience at the above address or by wire transfer to the account stated on the front of PolyScience’s invoice, or for customers with no established credit, PolyScience may require cash or credit card payment in advance of delivery.

In the event payments are not made or not made in a timely manner, PolyScience may, in its sole discretion and in addition to all other remedies provided at law, either: (a) declare Buyer’s performance in breach and terminate this Contract for default; (b) withhold future shipments until delinquent payments are made; (c) deliver future shipments on a cash-with-order or cash-in-advance basis even after the delinquency is cured; (d) repossess the Products for which payment has not been made; (e) recover all costs of collection including reasonable attorney’s fees; or (f) combine any of the above rights and remedies as is practicable and permitted by law. Buyer is prohibited from setting off any and all monies owed under this from any other sums, whether liquidated or not, that are or may be due Buyer, which arise out of a different transaction with PolyScience. Should Buyer’s financial responsibility become unsatisfactory to PolyScience in its reasonable discretion, PolyScience may require cash payment. If Buyer fails to meet these requirements, PolyScience may treat such failure as reasonable grounds for repudiation of this Contract, in which case reasonable cancellation charges shall be due PolyScience. Buyer grants PolyScience a security interest in the Products to secure payment in full, which payment releases the security interest but only if such payments could not be considered an avoidable transfer under the U.S. Bankruptcy Code or other applicable laws. Buyer’s insolvency, bankruptcy, assignment for the benefit of creditors, or dissolution or termination of the existence of Buyer, constitutes a default under this Contract and affords PolyScience all the remedies of a secured party under the U.C.C., as well as the remedies stated above for late payment or nonpayment.

7. LIMITED WARRANTY:

The manufacturer agrees to correct for the original user of the product, either by repair (using new or refurbished parts), or at the manufacturer’s election, by replacement (with a new or refurbished product), any defects in material or workmanship which develop during the warranty period. The standard warranty is twenty-four (24) months after delivery of the product and is non-transferable from the original purchaser. In the event of replacement, the replacement unit will be warranted for the remainder of the original warranty period or ninety (90) days, whichever is longer. For purposes of this limited warranty, “refurbished” means a product or part that has been returned to its original specifications. In the event of a defect, these are your exclusive remedies.

If the product should require service, contact the manufacturer’s/supplier’s office for instructions. When return of the product is necessary, a return authorization number is assigned and the product should be shipped, transportation charges pre-paid, in either its original packaging or packaging affording an equal degree of protection to the indicated service center. To insure prompt handling, the return authorization number must be placed on the outside of the package. A detailed explanation of the defect should be enclosed with the item.

The warranty shall not apply if the defect or malfunction was caused by accident, neglect, unreasonable use, improper service, acts of God, modification by any party other than the manufacturer, or other causes not arising out of defects in material or workmanship.

EXCLUSION OF IMPLIED WARRANTIES. THERE ARE NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WHICH EXTEND BEYOND THE DESCRIPTION AND TIME PERIOD AS STATED IN THE OPERATOR’S MANUAL INCLUDED WITH EACH PRODUCT.

LIMITATION ON DAMAGES. THE MANUFACTURER’S SOLE OBLIGATION UNDER THE WARRANTY IS LIMITED TO THE REPAIR OR REPLACEMENT OF A DEFECTIVE PRODUCT AND THE MANUFACTURER SHALL NOT, IN ANY EVENT, BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND RESULTING FROM USE OR POSSESSION OF THIS PRODUCT.

Some states do not allow: (A) limitations on how long an implied warranty lasts; or (B) the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. This warranty gives you specific legal rights and you may have other rights that vary from state to state.

8. INDEMNIFICATION:

Indemnification applies to a party and to such party’s successors-in-interest, assignees, affiliates, directors, officers, and employees (“Indemnified Parties”). PolyScience is responsible for and will defend, indemnify and hold harmless the Buyer Indemnified Parties against all losses, claims, expenses or damages which may result from accident, injury, damage, or death due to PolyScience’s breach of the Limited Warranty. This indemnification is provided on the condition that the Buyer is likewise responsible for and will defend, indemnify and hold harmless the PolyScience Indemnified Parties against all losses, claims, expenses or damages which may result from accident, injury, damage, or death due to any reason other than due to PolyScience’s breach of the Limited Warranty.

9. PATENT PROTECTION:

Subject to all limitations of liability provided herein, PolyScience will, with respect to any Products of PolyScience’s design or manufacture, indemnify Buyer from any and all damages and costs as finally determined by a court of competent jurisdiction in any suit for infringement of any U.S. patent (or European patent for Products that PolyScience sells to Buyer for end use in a member state of the E.U.) that has issued as of the delivery date, solely by reason of the sale or normal use of any Products sold to Buyer hereunder and from reasonable expenses incurred by Buyer in defense of such suit if PolyScience does not undertake the defense thereof, provided that Buyer promptly notifies PolyScience of such suit and offers PolyScience either (i) full and exclusive control of the defense of such suit when Products of PolyScience only are involved, or (ii) the right to participate in the defense of such suit when products other than those of PolyScience are also involved. PolyScience’s warranty as to use patents only applies to infringement arising solely out of the inherent operation of the Products according to their applications as envisioned by PolyScience’s specifications. In case the Products are in such suit held to constitute infringement and the use of the Products is enjoined, PolyScience will, at its own expense and at its option, either procure for Buyer the right to continue using such Products or replace them with non-infringing products, or modify them so they become non-infringing, or remove the Products and refund the purchase price (prorated for depreciation) and the transportation costs thereof. The foregoing states the entire liability of PolyScience for patent infringement by the Products. Further, to the same extent as set forth in PolyScience’s above obligation to Buyer, Buyer agrees to defend, indemnify and hold harmless PolyScience for patent infringement related to (x) any goods manufactured to the Buyer’s design, or (y) PolyScience’s Products when used in combination with any other devices, parts or software not provided by PolyScience hereunder.

10. TRADEMARKS AND OTHER LABELS:

Buyer agrees not to remove or alter any indicia of manufacturing origin or patent numbers contained on or within the Products, including without limitation the serial numbers or trademarks on nameplates or cast, molded or machined components.

11. SOFTWARE.

All licenses to PolyScience’s separately-provided software products are subject to the separate software license agreement(s) accompanying the software media. In the absence of such terms and for all other software, PolyScience grants Buyer only a personal, limited, non-exclusive, non-assignable license to access and use the software provided by PolyScience with Products purchased hereunder solely as necessary for Buyer to enjoy the benefit of the Products. A portion of the software may contain or consist of open source software, which Buyer may use under the terms and conditions of the specific license under which the open source software is distributed. Buyer agrees that it will be bound by any and all such license agreements. Title to software remains with the applicable licensor(s).

12. NONDISCLOSURE AND NON-USE OF PROPRIETARY INFORMATION:

“Proprietary Information” means any information, technical data or know-how in whatever form, including, but not limited to, documented information, machine readable or interpreted information, information contained in physical components, mask works and artwork, which PolyScience considers proprietary or Proprietary, including but not limited to PolyScience’s service and operators manuals. Buyer and its customers, employees and agents will keep confidential all such Proprietary Information obtained directly or indirectly from PolyScience and will not transfer or disclose it without PolyScience’s prior written consent, or use it for the manufacture, procurement, servicing or calibration of Products or any similar products, or cause such products to be manufactured, serviced or calibrated by or procured from any other source, or reproduce or otherwise appropriate it without PolyScience’s prior written consent. All such Proprietary Information remains property of PolyScience. No right or license is granted hereby to Buyer or its customers, employees or agents, expressly or by implication, with respect to the Proprietary Information or any patent, patent application or other proprietary right of PolyScience, except for the limited use licenses implied by law.

13. CHANGES AND ADDITIONAL CHARGES:

PolyScience reserves the right to make design changes or improvements to any products of the same general class as Products being delivered hereunder without liability or obligation to incorporate such changes, or improvements to Products ordered by Buyer unless agreed upon in writing before the Products’ delivery date. Services which must be performed as a result of any of the following conditions are subject to additional charges for labor, travel and parts: (a) equipment alterations not authorized in writing by PolyScience; (b) damage resulting from improper use or handling, accident, neglect, power surge, or operation in an environment or manner in which the instrument is not designed to operate or is not in accordance with PolyScience’s operating manuals; (c) the use of parts or accessories not provided by PolyScience; or (d) damage resulting from acts of war, terrorism or nature.

14. LIMITATIONS ON USE:

Buyer will not use any Products for any purpose other than those identified in PolyScience's catalogs and literature as intended uses. PolyScience products are not intended and are not to be used for diagnostic or clinical purposes. Any warranty granted by PolyScience is void if any goods covered by such warranty are used for any purpose other than those for which such product is expressly intended.

15. EXPORT AND IMPORT LICENSES AND COMPLIANCE WITH LAWS:

Unless otherwise specified in this Contract, Buyer is responsible for obtaining any required export or import licenses. PolyScience represents that all Products delivered hereunder will be produced and supplied in compliance with all applicable laws and regulations. Buyer will comply with all laws and regulations applicable to the installation or use of all Products, including applicable import and export control laws and regulations of the U.S and any other country having proper jurisdiction, and will obtain all necessary export licenses in connection with any subsequent export, re-export, transfer and use of all Products and technology delivered hereunder. Buyer will not sell, transfer, export or re-export any PolyScience Products or technology for use in activities which involve the design, development, production, use or stockpiling of nuclear, chemical or biological weapons or missiles, nor use PolyScience Products or technology in any facility which engages in activities relating to such weapons. Buyer will comply with all local, national, and other laws of all jurisdictions globally relating to anti-corruption, bribery, extortion, kickbacks, or similar matters which are applicable to Buyer’s business activities in connection with this Contract, including but not limited to the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”). Buyer agrees that no payment of money or provision of anything of value will be offered, promised, paid or transferred, directly or indirectly, by any person or entity, to any government official, government employee, or employee of any company owned in part by a government, political party, political party official, or candidate for any government office or political party office to induce such organizations or persons to use their authority or influence to obtain or retain an improper business advantage for Buyer or for PolyScience, or which otherwise constitute or have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining business or any improper advantage, with respect to any of Buyer’s activities related to this Contract.

16. FORCE MAJEURE:

PolyScience is excused from performance of its obligations under this Contract to the extent caused by acts or omissions that are beyond its control, including but not limited to Government embargoes, blockages, seizures or freeze of assets, delays or refusals to grant an export or import license or the suspension or revocation thereof, or any other acts of any Government; fires, floods, severe weather conditions, or any other acts of God; quarantines; labor strikes or lockouts; riots; strife; insurrections; civil disobedience or acts of criminals or terrorists; war; material shortages or delays in deliveries to PolyScience by third parties. In the event of the existence of any force majeure circumstances, the period of time for delivery, payment terms and payments under any letters of credit will be extended for a period of time equal to the period of delay. If the force majeure circumstances extend for six months, PolyScience may, at its option, terminate this Contract without penalty and without being deemed in default or in breach thereof.

17. NON ASSIGNMENT AND WAIVER:

Buyer will not transfer or assign this Contract or any rights or interests hereunder without PolyScience's prior written consent. Failure of either party to insist upon strict performance of any provision of this Contract, or to exercise any right or privilege contained herein, or the waiver of any breach of the terms or conditions of this Contract, will not be construed as thereafter waiving any such terms, conditions, rights, or privileges, and the same will continue and remain in force and effect as if no waiver had occurred.

18. LIMITATION OF LIABILITY:

PolyScience will not be liable to any of the Buyer Indemnified Parties under any circumstances for any special, treble, incidental or consequential damages, including without limitation, damage to or loss of property other than for the Products purchased hereunder; damages incurred in installation, repair or replacement; lost profits, revenue or opportunity; loss of use; losses resulting from or related to downtime of the products or inaccurate measurements or reporting; the cost of substitute products; or claims of Buyer's customers for such damages, howsoever caused, and whether based on warranty, contract, and/or tort (including negligence, strict liability or otherwise). The total liability of the PolyScience Indemnified Parties arising out of the performance or nonperformance hereunder or PolyScience's obligations in connection with the design, manufacture, sale, delivery, and/or use of Products will in no circumstance exceed in the aggregate a sum equal to the amount actually paid to PolyScience for Products delivered hereunder.

19. APPLICABLE LAW AND DISPUTE RESOLUTION:

The construction, interpretation and performance hereof and all transactions hereunder shall be governed by the laws of the State of Illinois, without regard to its principles or laws regarding conflicts of laws. If any provision of this Contract violates any Federal, State or local statutes or regulations of any countries having jurisdiction of this transaction, or is illegal for any reason, said provision shall be self-deleting without affecting the validity of the remaining provisions. Unless otherwise specifically agreed upon in writing between PolyScience and Buyer, the parties agree that any dispute relating to this Contract which is not resolved by the parties shall be adjudicated in order of preference by a court of competent jurisdiction in the city of Chicago, State of Illinois, U.S.A.

20. ENTIRE AGREEMENT & MODIFICATION:

These Terms & Conditions of Sale constitute the entire agreement between the parties and supersede any prior agreements or representations, whether oral or written. No change to or modification of these Terms & Conditions shall be binding upon PolyScience unless a written instrument specifically referencing and amending these Terms & Conditions of Sale signed by an authorized representative of PolyScience. PolyScience rejects any additional or inconsistent Terms & Conditions of Sale offered by Buyer at any time, whether or not such terms or conditions materially alter the Terms & Conditions herein and irrespective of PolyScience's acceptance of Buyer's order for the described goods and services.