1. General
a. These terms and conditions of sale (“Terms “) are applicable to all sales of products (“Products”) and services (“Services”) by QUEL Imaging LLC (“QUEL”) to the buyer (“Buyer”). BUYER’S PLACEMENT OF A PURCHASE ORDER FOR PRODUCTS OR SERVICES SHALL CONSTITUTE BUYER’S ACCEPTANCE OF THESE TERMS. IN NO EVENT SHALL ANY CONFLICTING OR ADDITIONAL TERMS SET FORTH IN BUYER’S PURCHASE ORDER (OR ANY OTHER DOCUMENT) APPLY TO QUEL’S SALE OF PRODUCTS AND/OR SERVICES TO BUYER, UNLESS SPECIFICALLY AGREED TO BY QUEL IN A SIGNED WRITING. THESE TERMS, DATED JANUARY 24, 2024, SUPERSEDE ALL PREVIOUS COMMUNICATIONS ON THIS SUBJECT. QUEL reserves the right to amend these Terms at any time.
b. QUEL shall have no obligation to sell any Products or Services to Buyer unless and until QUEL has issued an order acknowledgement or similar document expressly confirming QUEL’s acceptance of Buyer’s purchase order. Thus, the parties’ agreement regarding the sales of Products and/or Services shall consist solely of (i) these Terms; (ii) provisions set forth in an order acknowledgement or similar document issued by QUEL; (iii) Product or Service description and number, the price, units of Products or Services, and delivery dates and shipment instructions set forth in Buyers purchase order, provided such terms are accepted in QUEL’s order acknowledgement; and (iv) any other provisions set forth in a writing signed by both parties. Such documents are collectively referred to herein as this “Agreement.”
2. Prices; Cancelation Policy
All prices shall be Ex Works (Incoterms, latest issue), including standard packaging, in U.S. Dollars without any deductions whatsoever. Any and all additional charges, such as, but not limited to, freight charges, fees for export, transit, import and other permits, as well as for certifications, shall be borne by the Buyer. The Buyer shall be solely responsible for the payment of any and all taxes, fees, levies, customs duties and the like which are due as a result of, or are levied out of or in connection with the sale of Products and Services by QUEL.
3. Terms of Payment
Payment shall be made via credit card at time of order, or, subject to credit approval by QUEL, on N30 terms. Overdue payments shall be subject to interest with effect from the date on which the payment was due at a rate of 1.5% per month.
4. Risk of loss
Title to the Products and risk of loss passes to Buyer on the date of shipment from QUEL’s plant of manufacture or other facility.
5. Forwarding, transport and insurance
a. Buyer’s purchase order shall specify any requirements regarding forwarding, transport and insurance. All shipments shall be Ex Works (Incoterms, latest issue) at Buyer’s expense and risk. Objections regarding forwarding or transport shall upon receipt of the Products or of the shipping documents be immediately submitted by the Buyer to the last carrier.
b. In no event shall QUEL be deemed to assume any liability in connection with any shipment. Buyer shall be solely responsible for procuring insurance against all risks.
6. Inspection and acceptance of products and services
a. According to its own practices, QUEL shall inspect the Products before shipment, and shall inspect its work after fulfilling the Services.
b. The Buyer shall inspect the Products and Services within 3 business days following arrival at Buyer’s premises (or completion of the Services as the case may be), and shall immediately notify QUEL in writing of any failure of the Products or Services to conform to the requirements of this Agreement. If the Buyer fails to provide such notice within such time period, the Products and Services shall be deemed to have been accepted.
c. After having been notified of any such failures, QUEL shall use commercially reasonable efforts to remedy such failures within a reasonable period of time, and Buyer shall cooperate with QUEL’s efforts to do so. After remedying such failures, further acceptance testing may be performed by Buyer in accordance with Section 7.b. If QUEL is not able, despite commercially reasonable efforts, to remedy any such failures, QUEL shall replace the Products at issue or re-perform the Services at issue, which shall be QUEL’s sole liability, and Buyer’s sole remedy, for QUEL’s failure to remedy any such failures.
d. Acceptance shall be automatically deemed to have occurred without further action by Buyer as soon as Buyer commences use of the Products or Services (including partial delivery of Products or partial delivery of Services).
7. Warranty and liability
a. Warranty Period
The warranty period applicable to the Products and Services (“Warranty Period”) shall, (i) in the case of Products, be a 7-day period commencing upon delivery of the Products, except in the case of LED products, which shall be 6 months, and the calibration file for LED products, which shall be 12 months, and (ii) in the case of Services, shall be a 12-month period commencing upon QUEL’s completion of the Services.
With respect to any replacement or repaired parts provided by QUEL pursuant to Section 7.c, the Warranty Period shall be the original Warranty Period applicable to the Products that were the subject of such replacement or repairs. The Warranty Period will be deemed ended, and QUEL shall have neither liability nor obligation to provide any remedy in the event: (i) Buyer or a third party performs any repairs or modifications to the Products without QUEL’s prior written authorization; (ii) Buyer fails to mitigate any damage resulting from a failure of any Product or Service to conform to its warranties; or (iii) Buyer fails to give QUEL timely notice of a failure of a Product or Service to conform to its warranties, or fails to give QUEL the opportunity to remedy any breach of warranty.
b. Warranty
During the Warranty Period, QUEL warrants that (i) the Products will be free from defects in materials and workmanship, and (ii) the Services will be performed in a good and workmanlike manner.
c. Remedy For Breach of Warranty
In the event of any breach by QUEL of any warranty set forth in Section 7.b, QUEL shall, at its sole option, either replace or repair the Products, or repair or re-perform the Services. Such remedies shall be QUEL’s sole liability and Buyer’s sole remedy for breach of any warranty set forth in Section 7.b.
d. Exclusions from Warranty
The warranties set forth in Section 7.b do not cover any condition(s) (i) which cannot be proved to have its origin in defective materials or workmanship; (ii) which results from normal wear and tear, exposure to light, environmental pollution, neglect, failure to use the Products in strict conformity with instructions provided by QUEL; (iii) which result from failure to store Products in accordance with QUEL’s storage requirements or (iv) any other cause beyond QUEL’s reasonable control.
e. No Other Warranties
THE WARRANTIES SET FORTH IN SECTION 7.b ARE EXCLUSIVE AND IN LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO COURSE OF DEALING AND NO PRODUCT DESCRIPTION SHALL BE DEEMED A WARRANTY OF ANY PRODUCTS DELIVERABLE BY QUEL.
8. Limitation of liability
THE LIABILITY OF QUEL WITH RESPECT TO A CLAIM OF ANY KIND, WHETHER AS TO QUALITY OR AMOUNT OF PRODUCTS OR SERVICES DELIVERED OR FOR A NON-DELIVERY OF PRODUCTS OR SERVICES, SHALL NOT EXCEED THE INVOICE PRICE OF THE QUANTITIES OF PRODUCTS OR SERVICES AS TO WHICH THE CLAIM IS MADE. THIS LIMITATION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE. IN NO EVENT WILL QUEL BE LIABLE TO BUYER FOR ANY LOST PROFITS, LOST SAVINGS, COST OF COVER, INCIDENTAL DAMAGES OR OTHER CONSEQUENTIAL DAMAGES.
9. Indemnification
Buyer assumes all responsibility and liability for injury or damages resulting from its handling, possession, use or sale of Products or Services supplied hereunder, including, but not limited to any injury or damage resulting from the use of Products in Buyer’s operations or in combination with other substances or products, and agrees to hold harmless, defend and indemnify QUEL from and against all claims, losses, liabilities and expenses (including attorney’s fees and other litigation or settlement costs) arising out of such handling, possession, use or sale. The foregoing duty of Buyer to hold harmless, defend and indemnify QUEL shall not apply to the extent such claim, loss, liability or expense results from the willful misconduct or gross negligence of QUEL.
10. General
This Agreement shall be governed by the substantive laws of the State of Vermont, without regard to the conflicts of laws rules thereof. The UN Convention on Contracts for The International Sale of Goods shall not apply to this Agreement. Buyer agrees to waive its rights to a trial by jury in any dispute under this Agreement. The parties hereby submit to the jurisdiction of any Vermont state or federal court sitting in Vermont over any action or proceeding arising out of or relating to this Agreement. There