Terms and Conditions
CONDITIONAL ACCEPTANCE AND TERMS OF SALE FOR THE USA
This document acknowledges the receipt by Endress+Hauser, Inc. ("Seller?) of the purchase
order/offer ("Purchase Order?) of the buyer named on the face hereof ("Buyer?).
Acceptance. Seller hereby accepts Buyer's Purchase Order but EXPRESSLY CONDITIONS
ITS ACCEPTANCE ON BUYER'S ASSENT TO ALL OF THE TERMS CONTAINED HEREIN.
Buyer's Assent. Shipment by Seller and acceptance by Buyer of, or payment for, all or any part
of the goods covered by the Buyer's Purchase Order (the "Purchased Items?) and services shall
constitute Buyer's assent to all of the terms hereof. Prior to acceptance of Purchased Items by
Buyer, Seller may withdraw or modify this conditional acceptance of the Buyer's Purchase Order.
Complete Agreement. This agreement between Seller and Buyer (the "Sales Contract?)
contains the complete and exclusive agreement between Seller and Buyer with respect to the
Purchased Items and supersedes all prior agreements with respect to the Purchased Items
whether written or oral.
Modification. No modification, amendment, extension, renewal, rescission, discharge,
abandonment, waiver or other change or alteration shall be valid, enforceable or binding on
Seller unless agreed to in writing by Seller. Seller shall not be bound by any additional or
different terms, whether printed or otherwise, in Buyer's Purchase Order, or any other
communication from Buyer to Seller unless specifically agreed to by Seller in writing. Prior
courses of dealing, usage of the trade, and verbal agreements not reduced to writing and signed
by Seller, to the extent that they modify, add to, or detract from the Sales Contract, shall not be
binding on the Seller. Seller may, at its option, treat any attempted modification, termination or
repudiation by Buyer to which Seller does not assent as a breach of the entire Sales Contract
and claim all proper damages.
Termination. If all or part of the Sales Contract is terminated by agreement of the parties, and if
there is no contrary written agreement between Seller and Buyer, Buyer shall pay termination
charges in the amount equal to the greater of (I) ten (10) percent of the net sales price or (II) (a)
the price provided in the Sales Contract for all Purchased Items assembled prior to the
agreement by Seller to terminate, plus (b) the actual expenditures made and liabilities incurred
by Seller in connection with any portion of the Purchased Items not yet completed, plus (c)
reasonable estimated profit on the not yet completed portion of the Purchased Items.
Payment Terms and Security Interest. Unless provided otherwise on the face of this Sales
Contract, Buyer shall pay the purchase price in full within 30 days from date of shipment.
Services not covered by the applicable warranty for the Purchased Items will be billed to Buyer
at Seller's current rates, per invoice. Buyer shall pay all charges for Services within 30 days from
the date of invoice. All invoices not paid when due will thereafter be subject to a monthly
service charge of one and a half percent (1½-%) of the unpaid balance. If, in Seller's opinion,
there is a material, adverse change in Buyer's financial condition or if Buyer has not, within the
agreed time, fully paid for Purchased Items shipped under this or any other agreement with
Seller, Seller reserves the right to revoke Buyer's credit, to require shipment C.O.D., and/or
suspend performance on this and/or other Sales Contracts and/or future shipments. Buyer
hereby grants Seller a purchase money security interest in the equipment until the full purchase
price is paid, and Buyer appoints Seller as its attorney-in-fact for the purpose of filing any
documents necessary or desirable to perfect such security interest in any applicable jurisdiction.
Shipment. Terms are F.O.B. Seller's place of business at Greenwood, Indiana. Buyer shall pay
all shipping, packing and handling costs and shall bear the risk of loss after Seller completes
delivery of the Purchased Items to the carrier. Buyer shall have five (5) days after any full or
partial delivery to notify Seller if Buyer's count of delivered Purchased Items does not comport
with Seller's count as identified in the itemized packing list accompanying the shipment.
Sales or Use Taxes. The price shown on the face hereof does not include any tax or other
governmental charge upon the sale, shipment or use of the Purchased Items, which Seller is
required to pay or collect from the Buyer. Any such tax or charge shall be paid by Buyer unless
Buyer furnishes Seller with exemption certificates acceptable to the appropriate taxing authority.
Time of Delivery. Shipment schedules are approximate and are based on conditions existing at
the time of Seller's conditional acceptance of Buyer's Purchase Order. Seller shall in good faith
attempt to effect delivery by the date specified, but Buyer agrees that Seller shall not be
responsible or liable for any damages, including special or consequential damages, arising from
any shipment of nonconforming Purchased Items, or any delay in delivery, or any failure to
deliver Purchased Items in quantities and at times specified. In such cases, Seller reserves the
right to terminate the Sales Contract or to reschedule delivery within a reasonable time, and
Buyer agrees that such termination or rescheduling shall not be considered a breach of the
Sales Contract. In no event shall Seller be liable for incidental or consequential damages
resulting from failure to meet requested delivery schedules.
Returns. All returns of Purchased Items shall be made in strict compliance with Seller's Return
Policy as may be in affect from time to time, a written copy of which is available to Buyer upon
Storage Fees. If Buyer requests deferral of shipment, or fails to provide information, material, or
documentation required by this Sales Contract and as a result Purchased Items are placed in
storage, storage fees will commence immediately following the scheduled ship date unless
extended in writing. The Buyer will be charged a storage fee at Seller's prevailing rate at the
time. These charges will be invoiced to Buyer separately from the actual shipment, and shall be
paid in full by Buyer within thirty (30) days of date of invoice.
Specifications. Purchased Items shall be deemed to be in conformity herewith if they conform
to the specifications provided by Buyer. In the event ambiguities, discrepancies, or express
conflicts exist between the specifications and any other item purporting to describe or define the
Purchased Items, including, but not limited to, any drawings, photographs, models or other
documentation, the specifications shall control unless otherwise agreed to in writing by Seller.
Buyer agrees that Seller shall have no responsibility to identify, or notify Buyer of, any such
ambiguity, discrepancy, or conflict.
Nonconforming Goods. Seller reserves the right to cure any shipment of nonconforming
Purchased Items, and Buyer's remedies for nonconforming Purchased Items shall be limited to,
at the opinion of the Seller, return of the goods and repayment of any portion of the purchase
price paid or the repair or replacement of the nonconforming Purchased Items. Purchased Items
shall be deemed accepted when received by Buyer and any revocation of acceptance must be
made in writing within five (5) days after receipt of the Purchased Items, specifying the reason for
revocation of acceptance.
Services. If specified on the face of this Sales Contract or otherwise agreed by the parties in
writing, Seller will provide services to Buyer from time to time at Buyer's request, in accordance
with the terms and conditions of this Sales Contract. However, Seller shall not be obligated to
perform services as a result of malfunctions of the Purchased Items caused by: (i) the deliberate
or negligent acts of persons other than Seller, (ii) inadequate facilities of Buyer, (iii) systems or
equipment outside Seller's control (such as provided by vendors of utilities), and (iv)
modifications to the Purchased Items made by a party other than Seller. Buyer shall provide
Seller with access to its premises as necessary for Seller to perform the Services.
Confidentiality. Buyer shall keep confidential and not disclose any information of Seller to
which it has access as a result of performance of Services by Seller, including, but not limited to
Seller's and its parent and subsidiary companies' plans, programs, processes, equipment,
instruments, costs, operations, customers, materials, and the like.
Seller's Express Warranty. Seller warrants the Purchased Items to be free from defects in
materials and workmanship under normal use and service for a period of one year from time of
purchase. Seller further warrants that it will perform the Services in a professional and
workmanlike manner. Buyer agrees that it has the sole responsibility for the proper selection,
application, installation and/or use of the Purchased Items and for instructions to ultimate users,
if any, concerning use, application, periodic maintenance, and cautions regarding the Purchased
Items. Buyer agrees that the warranties provided herein shall not apply to any Purchased Item
which: (1) has been repaired or altered outside of Seller's factory in any way so as, in Seller's
judgment, to affect such Purchased Item's reliability; (2) has been subject to misuse, negligence,
or accident; (3) has been operated other than in accordance with the applicable printed
instructions provided by Seller; or (4) has been subject to wear of wetted parts caused by
Buyer's application of the Purchased Items.
Seller's Exclusive Obligations Under Warranty. Seller may, at its option, repair or replace, or
refund the purchase price of Purchased Items which shall be returned to Seller, no later than one
month after the expiration of the applicable warranty period in the manner set forth in this clause,
and which Seller's examination shall disclose to Seller's satisfaction to be defective as specified
in the warranty clause hereof. All allegedly defective Purchased Items shall be returned to the
Seller at Buyer's expense and risk.
All such Purchased Items shall be returned to Seller at Greenwood, Indiana, freight prepaid,
accompanied or proceeded by a particularized statement of the claimed defect. Under such
circumstances, freight charges, both to and from Seller, and risk of loss shall be borne by Buyer,
but Seller shall bear the cost of repair or replacement and the risk of loss while the Purchased
Items are in Seller's possession at Seller's plant. If Purchased Items are returned without being
preceded or accompanied by a statement of the claimed defect, Seller shall hold the Purchased
Items pending receipt of Buyer's a statement of defect, provided that, prior to such receipt, risk of
loss of the Purchased Items shall remain with the Buyer.
SELLER'S OPTION TO REPAIR, REPLACE OR REFUND THE PURCHASE PRICE FOR
PURCHASED ITEMS IS BUYER'S EXCLUSIVE REMEDY AGAINST SELLER WITH RESPECT
TO THE PURCHASED ITEMS. SELLER SHALL NOT BE LIABLE TO BUYER, ITS AGENTS,
EMPLOYEES, OFFICERS OR DIRECTORS, FOR ANY CONSEQUENTIAL OR INCIDENTAL
DAMAGES, LOSS OF REVENUE OR PROFIT, OR ANY OTHER INDIRECT DAMAGES
RELATED TO THE PURCHASED ITEMS OR SERVICES.
Seller's Disclaimer of Implied Warranties. SELLER'S LIMITED EXPRESS WARRANTY IS IN
LIEU OF ALL OTHER WARRANTIES OR GUARANTIES AND SELLER HEREBY DISCLAIMS
ALL OTHER SUCH WARRANTIES WITH RESPECT TO THE PURCHASED ITEMS AND
SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, AND ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING,
COURSE OF PERFORMANCE, OR USAGE OF TRADE. BUYER AGREES THAT MODELS OR
SAMPLES SHOWN TO BUYER, IF ANY, WERE USED MERELY TO ILLUSTRATE THE
PURCHASED ITEMS AND NOT TO REPRESENT, PROMISE, OR GUARANTEE THAT ANY
PURCHASED ITEMS DELIVERED HEREUNDER WOULD CONFORM TO SUCH MODELS OR
SAMPLES. SELLER'S AGENTS HAVE NO AUTHORITY TO GIVE WARRANTIES BEYOND
THOSE PROVIDED IN THIS LIMITED EXPRESS WARRANTY.
Buyer's Indemnification of Seller for Infringement. Buyer agrees to indemnify and hold
harmless Seller against all damages, costs, expenses and attorney's fees arising from claims of
infringement of patents, designs, copyrights or trademarks with respect to all Purchased Items
manufactured or assembled either in whole or in part to Buyer's specifications, and agrees that
such infringement shall be deemed a breach of the Sales Contract. Seller further reserves the
right to terminate the Sales Contract for Purchased Items which, in the opinion of Seller, infringe
upon any patent, design, copyright or trademark in their manufacture, sale and/or use, and Buyer
agrees that such termination shall not be considered a breach by Seller of the Sales Contract.
Seller's Indemnification of Buyer for Infringement. Seller shall indemnify and hold harmless
Buyer against any rightful claim of a third person for infringement of a United States Patent by
the Purchased Items covered by the Sales Contract which are not, either in whole or in part,
manufactured or assembled to the Buyer's specifications: provided, however, that the foregoing
undertaking of Seller shall not apply unless Seller shall have been informed as soon as
practicable by Buyer of the charge or suit alleging such infringement and shall have been given
the opportunity to take over the defense thereof, and provided, further, that it shall not apply if
the alleged infringement results from the use of the Purchased Items in combination with
equipment which is not part of the Purchased Items where such infringement would not have
occurred from the use of the Purchased Items not in combination with such equipment. Except
as provided in this paragraph, Seller makes no warranty that the Purchased Items will be
delivered free of the rightful claim of any third party by way of infringement or the like.
Indemnification. Seller shall indemnify and hold harmless Buyer from and against all personal
or property injuries, losses or damages to third parties (specifically excluding claims of Buyer and
all of its present of future agents, employees, officers, servants, representatives, directors, and
affiliates) solely caused by the negligence of Seller provided that Buyer notifies Seller in writing
within ten (10) days of Buyer's receipt of notice of any claim or action alleging that any injury,
loss or damage to a third party was caused by the negligence of Seller. Seller reserves the right
to assume responsibility for the defense of any such claim or action, and upon assumption by
Seller of its right to defend, Seller shall have control of the defense of such claim or action. Seller
shall be relieved from its obligation to indemnify if Buyer fails to cooperate fully in the defense of
any such action. Buyer agrees, however, that Seller shall not in any case be liable to Buyer, its
present or future agents, employees, officers, servants, representatives, directors or affiliates for
loss of use, revenue, or profit or for injury to person or property, or for any other consequential or
incidental damages caused by the negligence of Seller. Buyer agrees that Seller shall not be
liable under this provision if the Purchased Items are altered or modified in any manner after
Seller delivers such Purchased Items to the carrier for delivery to Buyer. Buyer shall indemnify
and hold harmless Seller from and against all personal or property injuries, losses or damages to
Seller, its employees or agents, arising out of the performance of the Services and caused by the
negligence of Buyer.
Default. Seller shall have the unrestricted right, upon written notice to Buyer, to declare a default
hereunder and to terminate this Sales Contract if any of the following events occur:
a. Buyer's failure to comply with any of the provisions, terms and conditions of this Sales
Contract, including without limitation, Buyer's failure to timely pay for any Purchased Items
delivered to Buyer;
b. Dissolution, insolvency, appointment of a receiver, assignment for the benefit of creditors or
the commencement of any proceeding under any bankruptcy or insolvency laws by or
against the Buyer; or
c. Seller's determination, in its sole discretion, that Buyer's financial condition is such as to
endanger Buyer's performance hereunder.
Remedies Upon Buyer's Default. Upon Buyer's default and Seller's written notice thereof to
Buyer, every obligation of Seller hereunder shall immediately terminate and Seller shall have all
rights and remedies existing at law or in equity, including but not limited to those provided by the
Uniform Commercial Code as adopted in Indiana.
Independent Contractors. In performing its obligations to Buyer hereunder, Seller is acting as
an independent contractor, and neither party is an agent or representative of the other or is
authorized to make any representations or assume or create any obligations on behalf of the
Preservation of Rights. Buyer agrees that Seller's forbearance, delay or failure to exercise any
right or remedy hereunder shall not constitute a waiver of such right or remedy and that Seller's
exercise or partial exercise of any right or remedy shall not preclude further exercise of such
right or remedy or any other right or remedy.
Costs of Enforcement. Buyer agrees to pay Seller's reasonable expenses, including
reasonable attorney's fees, incurred in enforcing the terms herein.
Applicable Law. The Sales Contract shall be governed by the laws of the State of Indiana.
Severability of Clauses. Buyer agrees that the invalidity or unenforceability of any of the
clauses or terms herein shall not affect the validity or enforceability of any other clauses or terms