Acceptance of Terms
- These terms and conditions of sale (the "Terms") shall apply to all quotations made for the sale of goods or services by Spectrum, Inc. ("Spectrum") to you ("buyer") and to any purchase order issued by buyer to Spectrum irrespective of terms set forth in purchase order agreement submitted by buyer. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the goods and services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
- The accompanying quotation/sales order confirmation/invoice and these Terms comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.
Delivery, and Shipment
- Spectrum makes every effort to deliver goods in a timely manner; the delivery schedule is subject to availability of finished goods and is only an estimate. Spectrum will make every effort to notify buyer of any delays it deems longer than reasonable.
- All shipments are made Ex-Works, and charges are Prepay and Add unless Spectrum is notified by buyer that a collect account shipment is required. Buyer agrees to provide Spectrum with a valid UPS® or FedEx® collect account number.
- Unless otherwise agreed in writing by the parties, Spectrum shall deliver the goods to Spectrum's delivery point using Spectrum's standard methods for packaging and shipping such goods.
- Spectrum does not accept liability for items damaged during transit, and title and risk of loss passes to buyer upon delivery of the goods at Spectrum's delivery point.
- Unless otherwise notified by the buyer that a "Complete Shipment" is required Spectrum may, in its sole discretion, without liability or penalty, make partial shipments of goods to buyer. Each shipment will constitute a separate sale, and buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of buyer's purchase order.
- Buyer shall purchase the goods and services from Spectrum at the prices set forth in Spectrum's price list and or any quotations in effect as of the date that Spectrum accepts buyer's purchase order, prices are only valid for the period defined in the quotation. Prices are subject to change without prior notice.
- Spectrum does NOT accept returns for any reason unrelated to defects in the products or warranty claims. No exceptions to the return policy can be made due to Spectrum's internal lot control guidelines. Buyer is responsible for reviewing all purchase orders for accuracy before submitting them to Spectrum.
- Unless otherwise agreed to in writing by Spectrum, all invoices must be paid within 30 days from date of issue. Spectrum does not accept discount terms unless explicitly agreed to in writing by Spectrum. Buyer understands that any purchase orders submitted to Spectrum with terms other than Net 30, that have not been explicitly agreed to by Spectrum in writing, will be invoiced with Net 30 terms.
- Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Spectrum for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under these Terms or at law (which Spectrum does not waive by the exercise of any rights hereunder), Spectrum shall be entitled to suspend the delivery of any goods or performance of any services if buyer fails to pay any amounts when due hereunder and such failure continues for 15 days following written notice thereof.
- Buyer may not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Spectrum.
- Sales tax will be charged for orders delivered to the following states: California, Washington, Illinois, Texas, Maryland and Massachusetts. It is the buyer's responsibility to submit a resale or tax exempt certificate to claim an exemption. Spectrum will maintain a copy of the certificate on file for future reference.
- Purchase orders may not be changed or cancelled without the prior written consent of Spectrum. Spectrum reserves the right to charge buyer a reasonable fee for any losses that result from a cancellation.
- Standard Limited Warranty: Spectrum's standard limited warranty covers the replacement of a defective consumable product manufactured by Spectrum (e.g., hollow fiber process filter and dialysis membrane) for a period of one hundred twenty (120) days after shipment to an authorized distributor or for a period of ninety (90) days after shipment to buyer, whichever occurs first. Spectrum agrees to, at its option, repair or replace defective non-consumable products that it manufactures (e.g., filtration pump system and hardware component) for a period of two (2) years following the date of shipment to buyer. This warranty is contingent upon proper use of a product in the application for which it was intended, and does not cover products which have been modified without Spectrum's written approval or that were subjected by buyer to unusual physical stress. The remedies set forth in this Section 7.a. shall be buyer's sole and exclusive remedy and Spectrum's entire liability for any breach of the limited warranties set forth herein.
- Warranty: EXCEPT FOR THE EXPRESS WARRANTY SET FORTH ABOVE, MANUFACTURER GRANTS NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE REGARDING THE PRODUCTS, THEIR FITNESS FOR ANY PURPOSE, THEIR QUALITY, THEIR MERCHANTABILITY, OR OTHERWISE.
Limitation of Liability
- Spectrum's liability to buyer shall be limited to a refund of buyers original purchase price. IN NO EVENT SHALL SPECTRUM BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SPECTRUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- Buyer agrees that it shall not, without a license or license exception, export or re-export from abroad or within the United States, items produced by Spectrum or its affiliates.
- All non-public, confidential or proprietary information of Spectrum, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Spectrum to buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" is confidential and may not be disclosed or copied unless authorized in advance by Spectrum in writing. This Section does not apply to information that is: (a) in the public domain; (b) known to buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.