Brookhaven Instruments Corporation Product Terms & Conditions

General

The sale of products and or the provision of services (collectively, “Products”) by Brookhaven Instruments Corporation (“Brookhaven Instruments”) shall be governed by these terms and conditions and shall supersede any term or condition in any purchase order, confirmation or other document furnished by the customer (“Customer”) that is in any way inconsistent with these terms and conditions, and any additional terms not consistent with these terms and conditions shall not be enforceable. Trade custom, trade usage and past performance are hereby superseded and shall not be used to interpret these terms and conditions.

Offer and Acceptance

Brookhaven Instruments’ offer to sell Products to Customer is expressly limited by Customer’s acceptance of these terms and conditions, as evidenced by Customer’s issuance of a purchase order for Products, or Customer’s acceptance of or payment for any Product under the purchase order. Additional or different terms or conditions proposed by Customer (including those that may be contained in Customer’s purchase order) shall be void and of no effect unless a prior written agreement to the contrary is provided by Brookhaven Instruments.

Customer’s order for Products is binding only when accepted by an authorized representative of Brookhaven Instruments, and is accepted subject to the terms and conditions contained herein, which constitute the complete agreement between the parties. Except as set forth herein, there are no other agreements between the parties, oral or written, with respect to the Products sold by Brookhaven Instruments (including any made or implied from past dealings).

Product Specifications

Brookhaven Instruments reserves the right to make technical changes to Products at any time during the period between the acceptance of Customer’s order and Brookhaven Instruments’ delivery of such order; provided that such changes will not reduce the performance of the Products sold in any material respect. The technical documentation included with Brookhaven Instruments’ offer and/or delivery, such as illustrations, drawings, indication of weight, etc. in providing for informational purposes only and will only be binding upon Brookhaven Instruments where expressly stated.

Confidentiality

“Confidential Information” means, subject to the exceptions set forth in the following sentence, any information, materials or data disclosed by Brookhaven Instruments including without limitation information or data related to or regarding cost estimates, technical literature, drawings and other Product details provided to Customer by Brookhaven Instruments Information and data will not be deemed Confidential Information hereunder if such information becomes or is publicly known or otherwise ceases to be secret or confidential, except through a breach of these terms and conditions by Customer.

Customer acknowledges that it will have access to the Brookhaven Instruments’ Confidential Information. Customer agrees that it will not (i) use any such Confidential Information in any way, for its own account or the account of any third party, except for the exercise of its rights and performance of its obligations under these terms and conditions; or (ii) disclose any such Confidential Information to any other party. Customer agrees that it will not allow any unauthorized person access to Confidential Information, and that Customer will take all action reasonably necessary to protect the confidentiality of such Confidential Information.

Price

Any published prices are subject to change without notice. Products shall be sold and invoiced at prices established by written contract between the parties, and, in the absence of a written contract signed by both the parties, as quoted by Brookhaven Instruments to Customer; provided that Customer has issued a purchase order that has been accepted by Brookhaven Instruments prior to the expiration date of the quotation. Thereafter, proposed prices and anticipated delivery times are subject to change by Brookhaven Instruments without notice. All quotations of proposed prices and anticipated delivery times are valid for thirty (30) days from the date that Brookhaven Instruments issues such valid written quotation to Customer, unless otherwise noted in such quotation or other communication from Brookhaven Instruments; provided, however, that proposed prices and anticipated delivery times may change if the Customer desires to amend the order.

In the event of cost increases pertaining to material and/or manufacturing of Products during the period between acceptance of an order and delivery, Brookhaven Instruments reserves the right to increase the sales price accordingly.

Product Shipment Terms

All Products are sold FCA (Intercoms 2000) Brookhaven Instruments’ facility unless, otherwise specified in writing by Brookhaven Instruments. All charges, expenses, fees, duties, taxes (including VAT), expedite fee(s), and insurance related to the packing or transporting of Products to Customer’s designated site are charged to Customer. In addition to the forgoing fees, Customer will also pay any bank charges and other charges related to the purchase and delivery of the Products including, without limitation, third party inspection charges whether inspected at point of origin or point of delivery. Risk of loss and title shall pass to Customer as soon as the Products have been placed with a transport agent. The Products will be insured for transit only at Customer’s specific request, with corresponding costs being charged to Customer. Unless specified by Customer, Brookhaven Instruments will select the means of shipping and routing which it deems appropriate. Brookhaven Instruments reserves the right to make partial shipments where circumstances beyond its reasonable control may delay a portion of the order. Brookhaven Instruments does not represent that it will select the most reliable or economical method of transportation, and expressly disclaims responsibility therefore.

Minimum Order Requirements

Brookhaven Instruments sells its products both directly and through distributors to customers in the U.S. and Canada (“Domestic Regions”) and outside of Domestic Regions (“Foreign Regions”). Exclusive of shipping charges, expenses and other fees, product orders in Domestic Regions must each be for an amount greater than fifty dollar ($50) and in Foreign Regions must each for an amount greater than seventy five dollars ($75). An “order” is considered to be a single purchase of Products to be shipped to a single location.

Drop Shipments in U.S. and Canada

Upon Customer’s request, standard drop shipment orders will be shipped to Customer’s end-user in Domestic Regions. Orders usually ship within sixty (60) business days of the order date, subject to stock availability or prior notice by Brookhaven Instruments to Customer. Any expected delivery dates provided by Brookhaven Instruments shall not be held responsible or liable if shipping or Products is late due to unforeseen factors or circumstances beyond Brookhaven Instruments’ reasonable control.

Warranty; Return and Credit Policies

Limited Warranty. Brookhaven Instruments warrants that any services will be performed with reasonable care and that the Products will, in all material respects, be free from defects in material and workmanship and will conform to the Product specifications stated in the user documentation accompanying the Product, when used in accordance with, and for the period stated in, such user documentation (such period, the “Warranty Period”). Any third party components of Products or accessories supplied along with Products are not within the scope of the foregoing warranty and may subject to their respective manufacturer’s warranties. The warranties stated herein do not apply to causes other than normal use, such as accident, fault or negligence by Customer, operator error or misuse, or causes external to the Products, including, but not limited to, electrical failure, fire or water damage, or exposure to intense heat or cold.

The duration of the warranty period applicable to services is thirty (30) days from the date of the provision of such services, and the duration of the warranty applicable to Brookhaven Instruments Products (other than services) is one year from the date of shipment. In the event Customer makes a valid warranty claim within the Warranty Period, Brookhaven Instruments sole and exclusive obligation, and Customer’s sole and exclusive remedy for a breach of the applicable Product warranty, is limited to, at Brookhaven Instruments’ discretion, either repair or replacement of the Product found to be defective, or re-perform the defective services, each in accordance with customary warranty repair policies.

Returns and Restocking Charges. Customer shall not, for any reason, ship goods back to Brookhaven Instruments without Brookhaven Instruments’ prior written consent, granted at its sole discretion, and any returned goods must include a copy of such written consent. The customer must receive prior approval, evidenced by a valid return material authorization (an “RMA”), from Brookhaven Instruments to return any Product, with such approval at Brookhaven Instruments’ sole discretion. The customer is hereby instructed to contact Brookhaven Instruments within thirty (30) days of receipt of goods to request any such approval. If Brookhaven Instrument consents to such a request, it will issue the Customer an RMA. No returns will be permitted without a valid RMA or following the foregoing thirty (30) day period unless otherwise authorized in writing by Brookhaven Instruments. Brookhaven Instruments will not accept returns for consumable Products that have been opened, including, but not limited to, solutions, buffers, standards, filling solutions, small volume cells, quartz cells, filters, accessories, power cords, and interface cables. Customers are advised to contact Brookhaven Instruments’ Customer service with any questions. Any such returned goods must be new (in the box) and received by Brookhaven Instrument within ten (10) days of the Customer’s receipt of an RMA. Brookhaven Instrument reserves the right to inspect the goods at its factory and to refuse at its discretion to accept the return of any item. Within thirty (30) days of Brookhaven Instruments’ acceptance of the return, Brookhaven Instrument will credit the Customer account. Such credit will be the original price of the Product returned; provided that any item returned for credit as a result of an incorrect purchase without a corrected reorder will be subject to a twenty-five percent (25%) restocking charge based on the original domestic or international price of the Product returned. Older items, service parts, and discontinued items cannot be returned.

Short Shipments. Brookhaven Instruments assumes no responsibility or liability for any item or billing discrepancies (such discrepancy, a “Short Shipment”) discovered or reported by Customer later than thirty (30) days after Customer’s receipt of invoice. In the event that Customer reports a substantiated claim of a Short Shipment within the foregoing time period, Brookhaven Instruments will issue a credit memo to Customer and place a new order for the missing Products to which such credit will be applied.

Notice of Defects. Customer is responsible for examining the delivered Products immediately upon receipt thereof and to report to Brookhaven Instruments in writing any visible defects within ten (10) working days of such receipt. Defects that are not reasonably detected through visible inspection must be reported to Brookhaven Instruments in writing within ten (10) days after discovery of such defect. Customer’s failure to report defects within the foregoing time periods will be deemed an unqualified waiver of any and all rights to warranty claims.

Product Use

Customer understands that particle and molecular weight Products are intended for laboratory and field use only and that the well-being of individuals using these Products is dependent on the proper operation and maintenance of the Products, as well as safe laboratory and field practice. Customer will refer to the relevant owner’s guide and any other documentation for details regarding the proper use and operation of Products.

Software

With respect to any software incorporated in or forming a part of the Products sold hereunder, Brookhaven Instruments and Customer intend and agree that such software is being licensed and not sold, and that the words “purchase”, “sell”, or similar or derivative words are understood and agreed to mean “l(fā)icense,” and that the word “Customer” or similar or derivative words are understood and agreed to mean “l(fā)icensee.” Notwithstanding anything to the contrary contained herein, Brookhaven Instruments or its licensor, as the case may be, retains all rights and interest in software products provided hereunder.

Brookhaven Instruments hereby grants to Customer a royalty-free, non-exclusive, non-transferable license, without power to sublicense, to use the software provided hereunder solely for Customer’s internal business purposes on the hardware Products provided hereunder and to use the related documentation solely for Customer’s internal business purposes. This license terminates when Customer’s lawful possession of the hardware Products provided hereunder (and concerning which such software is intended to be used) ceases unless terminated earlier as provided herein or in any agreement ancillary to these terms and conditions. Customer agrees to hold in confidence and not to sell, transfer, license, loan, or otherwise make available in any form to third parties the software products and related documentation provided hereunder, other than in connection with a transfer of the applicable Products containing such software. Customer may not disassemble, decompile, reverse engineer, copy, modify, enhance, or otherwise change or supplement the software products provided hereunder without Brookhaven Instruments’ prior written consent. Brookhaven Instruments will be entitled to immediately terminate this license if Customer fails to comply with any terms or conditions herein. Customer agrees, upon termination of this license, immediately to return to Brookhaven Instruments all software products and related documentation provided hereunder and all copies and portions thereof.

Certain of the software products provided by Brookhaven Instruments may be owned by one or more third parties and licensed to Brookhaven Instruments. Accordingly, Brookhaven Instruments and Customer agree that such third partied retain ownership of and title to such software products. The warranty provisions set forth herein shall not apply to software products owned by third parties and provided hereunder.

Export Restrictions

Customer acknowledges that each of Brookhaven Instruments’ Products and any related software and technology, including technical information supplied by Brookhaven Instruments or contained in documents (collectively “Items”), is subject to export controls of the U.S. government. The export controls may include but are not limited to, those of the Export Administration Regulations of the U.S. Department of Commerce (the “EAR”), which may restrict or require licenses for the export of Items from the U.S. and their re-export from other countries. The customer shall comply with the EAR and all other applicable laws, regulations, treaties, and agreements relating to the export, re-export, and import of any Item. Customer shall not, without first obtaining the required license to do so from the appropriate U.S. government agency: (i) export or re-export any Item, or (ii) export, re-export, distribute or supply any Item to any restricted or embargoed country or to a person or entity whose privilege to participate in exports had been denied or restricted by the U.S. government. Customer shall cooperate fully with Brookhaven Instruments in any official or unofficial audit or inspection related to applicable export or import control laws or regulations and shall indemnify, defend, and hold Brookhaven Instruments harmless from, or in connection with, any violation of this subsection by Customer or its employees, consultants, agents, or customers.

Force Majeure

Brookhaven Instruments shall not be liable for failure to perform or for delay in performance due to fire, flood, strike, or other labor difficulty, act of God, act of any governmental authority, riot, embargo, fuel or energy shortage, wrecks or delays in transportation, inability to obtain necessary labor, materials, or manufacturing facilities from usual sources, or due to any cause beyond Brookhaven Instruments’ reasonable control. In the event of a delay in performance due to any such cause, the date of delivery or time for completion of performance will be extended by a period of time reasonably necessary to overcome the effect of such delay

Disclaimer of Other Warranties

THE FOREGOING EXPRESS WARRANTIES ARE THE EXCLUSIVE TERMS AVAILABLE TO THE CUSTOMER AND ARE NOT TRANSFERRABLE TO ANY OTHER PERSON OR ENTITY. THE CORRECTION OF ANY DEFECT IN OR FAILURE OF PRODUCTS BY REPAIR OR REPLACEMENT OR RE-PERFORMANCE OF SERVICES IN ACCORDANCE WITH BROOKHAVEN INSTRUMENTS’ POLICIES SHALL BE BROOKHAVEN INSTRUMENTS’ SOLE AND EXCLUSIVE OBLIGATION AND THE SOLE AND EXCLUSIVE REMEDY OF THE CUSTOMER FOR ANY AND ALL LOSSES, DELAYS OR DAMAGES RESULTING FROM THE PURCHASE OR USE OF BROOKHAVEN INSTRUMENTS PRODUCTS. OTHER THAN THE LIMITED WARRANTY SPECIFICALLY STATED HEREIN, BROOKHAVEN INSTRUMENTS DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE BROOKHAVEN INSTRUMENTS’ PRODUCTS, INCLUDING THE PERFORMANCE THEREOF AND ANY SERVICES PROVIDED TO CUSTOMER, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE.

Limitation of Liability

IN NO EVENT SHALL THE LIABIILTY OF BROOKHAVEN INSTRUMENTS WITH RESPECT TO ANY PRODUCTS SOLD HEREUNDER EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER FOR SUCH BROOKHAVEN INSTRUMENTS PRODUCTS, AND IN NO EVENT SHALL SUCH DAMAGES INCLUDE, AND BROOKHAVEN INSTRUMENTS SHALL NOT BE LIABLE FOR, ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR SPECIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, INSTALLATION, ADJUSTMENT, LOSS OF PROFIT, PROMOTIONAL OR MANUFACTURING EXPENSES, BUSINESS INTERRUPTION COSTS, LOSS OF DATA, INJURY TO REPUTATION, LOSS OF CUSTOMERS OR LIABILITIES WHICH MAY ARISE IN CONNECTION WITH ANY PRODUCTS PROVIDED TO CUSTOMER, EVEN IF BROOKHAVEN INSTRUMENTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF THE NATURE OF THE CLAIM WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE. CUSTOMER ACKNOWLEDGES THAT BROOKHAVEN INSTRUMENTS HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN CUSTOMER AND BROOKHAVEN INSTRUMENTS. CUSTOMER AND BROOKHAVEN INSTRUMENTS AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED HEREIN WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

Intellectual Property

Notwithstanding that title to a Product may pass to the Customer, Brookhaven Instruments shall remain the exclusive owner of all intellectual property rights of whatever nature including, without limitation, copyrights, patents and patentable inventions, know-how, trade secrets, trademarks, and design rights (whether registered, registrable or otherwise) embodied in or otherwise relating to the Products. Other than as permitted by applicable law, Customer shall neither reverse engineer the Products or any part thereof. Customer shall not remove any proprietary notices and/or branding contained in or otherwise affixed to the Products.

Governing Law

The quotation, these terms and conditions, and the purchase of Products by Customer shall be governed and construed in accordance with the laws of the State of New York, U.S.A., without regard to its principles of conflicts of laws principles. The parties hereby irrevocably agree that the state and federal courts of the State of New York, U.S.A shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the quotation, these terms and conditions, the purchase of Products by Customer, or their subject matter and the parties hereby submit to the non-exclusive jurisdiction of the New York courts.

Validity of Provisions

In the event any provision or portion of any provision of these terms and conditions shall be held invalid, void or otherwise unenforceable, such holding shall not affect the remaining part or portions of that provision, or any other provision hereof.