Electro-Chemical Devices (ECD) SMS22 - Manual (Page 6)

TERMS AND CONDITIONS OF SALE
1. ACCEPTANCE. If this writing differs in any way from the terms and conditions of Buyer's order or if this writing is construed as an acceptance or
as a confirmation acting as an acceptance, then Seller’s acceptance is EXPRESSLY MADE CONDITIONAL ON BUYER’S ASSENT TO ANY TERMS AND
CONDITIONS CONTAINED HEREIN THAT ARE DIFFERENT FROM OR ADDITIONAL TO THOSE CONTAINED IN BUYER'S WRITING. Further, this writing
shall be deemed notice of objection to such terms and conditions of Buyer. If this writing is construed as the offer, acceptance hereof is EXPRESSLY
LIMITED TO THE TERMS AND CONDITIONS CONTAINED HEREIN. In any event, Buyer's acceptance of the goods shall manifest Buyer's assent to
Seller's terms and conditions. No addition to or modification of these terms will be effective, unless set forth in writing and agreed to by Seller.
2. WARRANTIES AND REMEDIES
a. Warranty. Seller warrants to Buyer that it holds and will pass marketable title to the goods sold hereunder. Seller warrants to Buyer that the
items and components manufactured by Seller will be free from defects in material and workmanship (subject, however, to tolerances and
variances permitted by the trade hereunder) for a period one (1) year for non-consumable products. Consumable electrodes and sensors have a
conditional warranty based shelf life and process conditions and is determined by Seller.
b. Exclusion and Conditions. Seller’s obligations with respect to the express warranties and remedies contained herein are conditioned on the
following: (i) Buyer's return of the non-conforming goods, if authorized by Seller: (ii) Buyer shall not assign its rights under these express warranties
and any attempted assignment shall render such warranties, but not any disclaimers or limitations, void and the goods sold shall be sold AS IS; and
(iii) all products shall be carefully inspected for damage by Buyer upon receipt, be properly calibrated for Buyer's particular use, and be used,
repaired, and maintained by Buyer in accordance with the instructions set forth in Seller’s product literature. Repair and maintenance by non-
qualified personnel, product subjected to misuse or negligence, and/or damaged during shipment will invalidate the warranty, as will the use of
non-approved consumables or spare parts. As with any other sophisticated product, it is essential, and a condition of Seller’s warranty, that all
personnel using the product be fully acquainted with its use, capabilities and limitations as set forth in the applicable product literature.
3. DISCLAIMER OF IMPLIED WARRANTIES. Seller gives no warranties except those expressly contained herein. Seller disclaims all other warranties
implied by law usage of the trade, course of dealing or course of performance including, but not limited to, the Implied warranties of
MERCHANTABILITY and fitness for a particular purpose.
4. LIMITATIONS OF LIABILITY. The following limitations of Seller's liability are acknowledged by the parties to be fair and reasonable and shall apply
to any act or omission hereunder, and to any breach of this contract of which these terms and conditions form a part:
a. Disclaimer of Damage. In no event shall Seller be liable for special, indirect, consequential or incidental damages whether arising under
contract, warranty, tort, strict liability or any other theory of liability. Such damages include but are not limited to loss of profits, loss of use of
goods, damage to property, and claims of third parties.
b. Suitability. Buyer acknowledges that it alone has determined the intended purpose and suitability of the goods sold hereunder. It is expressly
agreed by the parties that any technical or other advice given by the Seller with respect to the use of the goods or services is given without charge
and at Buyer's risk; therefore Seller assumes no obligation or liability for the advice given or results obtained.
c. Notice and Time of Claims.
i. Buyer agrees to check and inspect all products against shipping papers and for damage or shortage upon receipt of goods at destination.
ii. Every claim for shortage, damage in transit, or other cause visible upon inspection shall be deemed waived by the Buyer, or the Buyer’s customer
in the case of resale, unless delivered in writing to Seller by Buyer thirty (30) days from the tender of delivery of the goods to Buyer, provided,
however, that claims for shortage must be made within seven (7) days of receipt.
iii. The parties expressly waive the statute of limitations and agree that any legal proceeding for any breach of this contract shall be waived unless
filed within one (1) year after the accrual of the cause of action thereof.
5. FORCE MAJEURE. Seller shall not be liable for any delay in delivery, or failure to deliver, due to any cause beyond the Seller’s control including
but not limited to fires, floods, or other forces of the elements; strikes, or other labor disputes; accidents to machinery; acts of sabotage; riots;
precedence or priorities granted at the request or for the benefit, directly or indirectly of the federal or any state government or any subdivision or
agency thereof; delay in transportation or lack of transportation facilities; restrictions imposed by federal, state or other governmental legislation
or rules or regulations thereof. If Seller, in its sole discretion, determines that Seller’s performance hereunder would result in a loss to Seller’s on
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