Applicability. All sales of goods and/or services (herein after referred to as the “Products”) by Belair Instrument Company LLC dba Avantik (“Avantik”) to a buyer (“Buyer”) are subject only to the following standard terms and conditions (herein after referred to as the "Terms"), notwithstanding anything to the contrary in any purchase order or other document issued by Buyer, provided, however, if Avantik and Buyer have executed an alternate written agreement which governs the sale of Products, then such agreement’s terms and conditions shall supersede these Terms. To the extent such agreement is silent as to certain Terms contained herein, then these Terms shall apply. These Terms shall constitute a contract between the parties (hereinafter referred to as the “Contract”) and Buyer shall be deemed to have accepted and agreed to these Terms contained in this Contract by and upon its issuance of a purchase order or upon Buyer’s receipt and acceptance of the goods and/or upon completion of services by Avantik.
Prices. Price and availability of Products are subject to change without notice, including but not limited to changes caused by the fluctuations in market price, availability, or quality of any of the items employed in the manufacture or delivery of the Products described herein. Avantik may increase the prices for Products under this Contract by providing the Buyer with at least five (5) days’ prior written notice. Such increased prices shall be deemed to be accepted by the Buyer unless, before the effective date of such increase, the Buyer notifies Avantik in writing to the contrary, whereupon Avantik shall have the right to terminate this Contract with respect to such Products.
Payment Terms. Unless otherwise provided on the face hereof, payment hereunder shall be due net thirty (30) days from the date of invoice. Payment for all Products related to the COVID-19 pandemic are as follows: a 50% deposit shall be due to Avantik upon receipt of Buyer’s purchase order and the balance shall be due upon delivery. All amounts past due shall bear interest at the rate equal to the lower of (a) 1.5% per month or (b) the maximum rate allowable by applicable law. Buyer agrees to make all payments without set-off, deductions or counterclaims. Buyer shall promptly reimburse Avantik for all costs and expenses (including, without limitation, reasonable attorneys’ fees, or other legal fees) incurred by Avantik in connection with the collection of any overdue payments. Avantik’s obligation to produce or deliver hereunder is conditioned upon the continued good credit of Buyer and upon Buyer’s payment when due of any sum owing by Buyer to Avantik under any agreement between the parties. Based on Avantik’s reasonable judgment, if Buyer’s financial condition at the time the goods are ready for shipment and/or service is requested does not justify the terms specified, Avantik reserves the right to change these terms to require full or partial payment in advance, or to ship the goods Cash On Delivery. All credit card payments will incur a 1.5% processing fee. Buyer shall verbally verify any change in Avantik’s banking information which impacts Payment by calling 800-783-9424.
Taxes. Any taxes or other government levy or charge (or any increase in same) which Avantik may be required to pay or collect, under any existing or future law, upon or with respect to the sale, purchase, delivery, storage, processing, use, or consumption of any of the Products covered hereby, including taxes upon or measured by the receipts from the sale thereof, shall be for the account of Buyer, and may, at Avantik’s option, be added to the price of the Products provided hereunder. Avantik will waive sales tax charges upon receipt of a valid tax exempt or resale certificate from Buyer.
Shipments and Completion of Service. Unless otherwise stated, shipment dates and/or service completion dates are estimates and Avantik shall not be held liable for any loss incurred by Buyer in the event of a delay. Delay by or on behalf of Avantik shall not be grounds for termination of this Contract.
Delivery and Performance in Installments. Avantik reserves the right to make delivery and performance in installments, unless otherwise expressly stipulated herein. All such installments may be separately invoiced and paid for when due, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept remaining deliveries or performance.
Delay; Force Majeure. Avantik shall not be liable for delays in performance caused by force majeure, act of God, fire or other casualty, accident, strike, boycotts, pandemic, epidemic, shortage of labor or materials, governmental action, declared state of emergency, or other cause beyond Avantik’s reasonable control; and the time for Avantik’s performance shall be extended by the period of any such delay. Avantik reserves the right to apportion its Products among its customers as it may determine.
Limited Warranty. (a) EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 8(b) OR 8(c) HEREIN, OR IN ANY OTHER SEPARATE WRITTEN WARRANTY PROVIDED BY AVANTIK WITH RESPECT TO A SPECIFIC PRODUCT, IF ANY, AVANTIK MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. No agent, employee, or representative of Avantik has any authority to bind Avantik to any affirmation, representation or warranty concerning the Products sold pursuant to the Terms hereof, and unless an affirmation, representation or warranty made by an agent, employee or representative is specifically included herein, it is not deemed part of the basis of this bargain and shall not in any way be enforceable. (b) Avantik extends a limited one (1) year warranty to Buyers who purchase any instrumentation from Avantik that was manufactured new elsewhere or rebuilt by Avantik. Avantik warrants to Buyer that the mechanical, electrical, and electronic parts will be free of defects in material and workmanship under normal use and maintenance for a period of one (1) year, beginning from the date Buyer receives the instrument (the “Warranty Period”). During the Warranty Period, Avantik will cover the cost of labor and parts to repair any mechanical, electrical, and electronic parts which are defective in material and/or workmanship, contingent on the instrument being used and maintained in accordance with the original instrument manufacturer’s operations manual. Buyer agrees to comply with all procedures contained in the operations manual and any additional instructions supplied by Avantik and further agrees that its operators will be trained in the proper operation and maintenance of any instrument supplied to it by Avantik. By purchasing the instrument, Buyer agrees that it will indemnify Avantik and hold it harmless from any liability, claim, loss, cost, or expenses caused by the misuse of the instrument by Buyer and/or its operator. The warranty outlined herein does not cover: (i) the cost of parts, travel, and labor incurred by Avantik or an Avantik authorized service provider in resolution of any instrument issue resulting from operator error, misuse, lack of required maintenance, or inadequate operator training; (ii) issues arising from applications, processes, protocols, or techniques applied by the operator which are not considered to be within the scope of normal operating procedures or conditions as established by either the original instrument manufacturer or Avantik, or (iii) damage which occurs as a result of electrical, power, or similar facility issues. In the event that Avantik or an authorized Avantik service provider does incur expense in the resolution of an instrument issue that an Avantik authorized service engineer determines has resulted from any of the scenarios described in subparagraphs (i) or (ii) above, the Buyer will be liable for: cost of all parts replaced; labor time, travel time, and travel expenses incurred during the Warranty Period. (c) Avantik warranties service and repair workmanship for a period of thirty (30) days. Maintenance, service and replacement parts are warrantied for thirty (30) days or as defined by the manufacturer of the part. Avantik will only be liable to replace parts which were installed by Avantik that are deemed to be defective by Avantik at its own discretion, or if the service provided by Avantik did not resolve the original issue for which service and repair was provided. Issues covered in the thirty (30)-day period are only for those with the same root cause as the original service. This warranty does not cover any other issues that come up within a thirty (30) day period. Avantik shall have no liability for any incidental or consequential damages. Avantik's liability shall be limited to repairing or replacing any part or service which was supplied by Avantik, and which may be defective in material or workmanship while such item is under warranty.
Liability. Except to the extent that such is solely and directly caused by Avantik’s breach of its obligations hereunder, Buyer assumes all liability arising out of compliance with any laws, rules or regulations relating to any Product. In no event shall Avantik be liable for incidental, consequential or other damages from alleged negligence, breach of warranty, strict liability or any other theory, arising from the use or handling of the Products. The sole liability, if any, of Avantik for any claims arising out of the manufacture, use or sales of its Products shall be expressly limited to the purchase price of the particular Products of which any claim is made. In accepting the Products described herein, Buyer shall be deemed to have declared itself familiar with the nature, hazards and use of the Products and their containers and shall assume all liability resulting from or in any way connected with the unloading, discharge, storage, handling, possession, use and disposal of any Product or container therefore, including, without limitation, the use of such Product or container alone or in combination with other substances, except to the extent that such liability results from Avantik’s gross negligence or willful misconduct. Avantik shall not be liable for any damage, injury or loss of any indirect or consequential nature suffered by Buyer, however and whenever caused, including, without limitation, loss of sales, revenue or profit.
Indemnification. Buyer shall defend, indemnify and hold Avantik and its officers, directors, employees and agents harmless from and against any and all claims, actions, liability, expenses, costs (including, without limitation, expenses, court costs, and reasonable attorneys’ fees), or losses arising from (i) Buyer’s improper use of the Product; (ii) Buyer’s combination or use of the Products with third party products; (iii) misuse of any Product by an end user; (iv) the acts or omissions of Buyer hereunder; (v) any breach by Buyer of its obligations hereunder, and (vi)any Buyer’s materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Buyer. This Section shall survive termination and cancellation of this Contract.
Inspection; Claims. Buyer shall examine goods upon receipt or completion of services and shall notify Avantik, in writing, of any non-conforming Products within ten (10) days. Failure to timely give such notice shall constitute an irrevocable acceptance of the Products. No claims, of any kind, by Buyer shall be valid without notice, as specified. Buyer shall afford Avantik a reasonable opportunity to inspect the material and repair or replace any Products determined by Avantik to be non-conforming. No orders may be cancelled without Avantik approval following shipment of the Product or five (5) days after confirmation of the order, whichever comes first. No goods shall be returned without Avantik’s consent. Notwithstanding any other Avantik terms and conditions of sale, any order of goods related to COVID-19 pandemic, including, but not limited to, VTMs (Viral Transport Medium), pipette tips, viral swabs, rapid tests, etc. may not be cancelled and the goods may not be returned except due to the receipt of incorrect goods. All returns deemed to be authorized by Avantik shall be subject to a 15% restocking fee.
Remedy for Non-Conforming Products. If the Products furnished to Buyer shall fail to conform to this Contract, Avantik, at its discretion, shall, within thirty (30) days of notice of said non-conformity, issue credit for or shall replace such non-conforming Products at the original point of delivery and shall furnish instructions for the disposition of the non-conforming Products. Any transportation charges involved in such disposition shall be for Avantik’s account. Buyer’s exclusive and sole remedy on account of or in respect to the furnishing of Products that do not conform to this Contract shall be to secure credit or replacement thereof as aforesaid. Avantik shall not, in any event, be liable for any special, direct, indirect, incidental, or consequential damages to anyone by reason of the fact that such Products do not conform to this Contract, or to any express or implied warranty herein.
Risk of Loss. All shipments will be F.O.B. departure origin unless otherwise specified in writing. Risk of loss of or damage to the goods passes to Buyer upon F.O.B. departure origin. Title remains with Avantik unless and until Avantik receives payment in full for said goods, including any and all additional costs such as interest and expenses Avantik may be entitled to hereunder.
Responsible Care. Both parties agree to handle, store, transport, and dispose of the Products in reasonable manner with appropriate regard for the safety of their employees and the general public, and agree to comply with all applicable environmental, transportation and safety regulations. Buyer acknowledges that Avantik cannot anticipate all conditions under which its Product may be used, and therefore Buyer agrees to conduct its own tests to determine the safety and suitability of the Products for Buyer’s purposes. Any information provided by Avantik is without warranties, either express or implied.
Confidentiality. All information and materials (including the Products thereof or the terms of any other agreement or arrangement relating to the Products) provided by Avantik to Buyer are confidential and may not be disclosed by Buyer to any third parties, without Avantik’s prior written consent.
Termination. Without prejudice to any other remedy, Avantik may immediately suspend or cease any further performance or delivery of Products; demand return and take repossession of any delivered goods which have not been paid for; and/or terminate this Contract and any other agreement with Buyer should Buyer fail to timely perform any obligation hereunder.
Governing Law. This Contract and any disputes relating hereto shall be governed by and construed under the laws of the State of New Jersey, without regard to the conflicts of law principles.
Non-Waiver. Failure by Avantik to enforce any right it may have in any instance shall not be deemed a waiver of any right it may have in any other instances.
Assignment. This Contract shall inure to the benefit of and be binding upon the parties and their respective successors and assigns. This Contract is not assignable by Buyer without the Avantik’s prior written consent but may be assigned by Avantik without Buyer’s consent.
Acceptance of These Terms. The specifications on the face hereof, together with the Terms contained herein constitute the entire agreement between Avantik and Buyer., These Terms are deemed to be a part of, and incorporated into, every sales transaction for Products sold by Avantik. Neither Avantik’s correspondence nor shipment of any goods is an expression of acceptance or a written confirmation of any terms added by a party outside of Avantik on Buyer’s purchase order unless otherwise confirmed or acknowledged by Avantik in writing.
Miscellaneous. Avantik may amend or modify these Terms at any time and without notice to Buyer. Whenever possible, each provision of herein shall be interpreted in such a manner as to be effective and valid under applicable law. The determination by any court of competent jurisdiction that one or more section(s) or provision(s) is unenforceable shall not invalidate the remainder of the sections or provisions herein, and the decision of such court shall be given effect so as to limit to the extent possible the sections or provisions which are deemed unenforceable.