1. Governing Provisions: In these Terms and Conditions (“Conditions”) “we,” “us,” and “our” means ANDalyze, Inc. (“ANDalyze”), and “you” and “your” means the person, company or other entity that orders products from us, and both our and your successors and/or assigns. We ship products you ordered (“Products”) subject to these Conditions. These Conditions, including all writings incorporated herein by reference, any quotation issued to you by ANDalyze, and the terms of your purchase order or ordering document that identify the type and quantity of Product ordered, constitute the entire contract between you and ANDalyze (“Contract”), and supersede all prior agreements and understandings between you and ANDalyze, whether written or oral, relating to the subject matter hereof. In the event of a conflict, a quotation takes precedence over these Conditions, and a written contract signed by both parties takes precedence over both. Your orders are binding upon you, and shall cease to be binding only if and when expressly rejected by us. Only accepted orders shall be binding upon us. We may accept orders either in writing, or by shipping the ordered products. The terms of your purchase order or other ordering document, except for the identity and quantity of the Product ordered and the address for delivery, are expressly rejected by both you and us, and our failure to object to such provisions shall not be construed as a waiver of these Conditions nor an acceptance of any such provision.
2. Delivery: All sales are FCA our shipping point (Incoterms 2010). We may deliver in installments, each separately invoiced and paid for when due. Upon your receipt of a Product, you shall inspect the Product and notify us of any claims for shortages, defects or visible damage. If you don’t notify us within 7 days of receipt, the Product is deemed to conform to the Contract and accepted by you. Authorization for returns must be approved by us. Items authorized for return must arrive in a state satisfactory for resale to be eligible for product credit, in which case we will issue a credit for the amount you paid. Shipping charges are not credited. No credit is available if a past due balance is outstanding on your account.
3. Payments: Products are billed at the price in effect at the time shipment is made, and prices shall be subject to change without notice. Except as otherwise required or permitted by us, you must pay each invoice within 15 days of its date in U.S. Dollars. You may make no offset upon any amounts due to us. If you default in making payment when due, we may, at our option and without prejudice to our other lawful remedies, defer deliveries, cancel the order, and/or impose a late fee equal to the lesser of 1.5% per month, or the maximum rate allowable by law, accruing daily. Any use tax, sales tax, excise tax, duty, or any other governmental tax, fee or charge by the transaction between you and us shall be paid by you. If we are required to pay any such tax, fee or charge, you shall reimburse us or provide us at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
4. Warranty: We warrant to you that (i) each Product will meet the warranty described in the ANDalyze Product Warranty documentation that accompanies our delivery of the Product to you, for the time period or shelf life identified therein, and subject to the exceptions and requirements set forth therein; or (ii) for a Product that is not accompanied by an ANDalyze Product Warranty, we warrant that such Product will, at the time of delivery, substantially conform to the description of that Product in our published catalog (in each case, the “Warranty”). THE WARRANTY IS EXCLUSIVE, AND WE MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE. Our sole and exclusive liability and your sole and exclusive remedy with respect to Product proved to our satisfaction to fail to meet the Warranty shall be replacement free of charge (including free shipping) upon receipt of such Product in accordance with our instructions, although at our discretion we may provide a credit or refund.
5. Limitation of Liability: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE UNDER ANY LEGAL THEORY OR FORM OF ACTION (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST DATA, OR COST OF SUBSTITUTE GOODS) ARISING OUT OF OR RELATED TO THE PRODUCTS OR THEIR DELIVERY, OR OTHERWISE RELATING TO THE CONTRACT, EVEN IF WE HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OUR TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THE PRODUCT OR OTHERWISE RELATING TO THE CONTRACT, EXCEED YOUR DIRECT DAMAGES CAPPED AT THE AMOUNTS PAID BY YOU UNDER THE ORDER UNDER WHICH THE LIABILITY AROSE. We shall not be liable for any damages caused by late delivery.
BECAUSE SOME JURISDICTIONS LIMIT OR DO NOT ALLOW CERTAIN EXCLUSIONS OR LIMITATIONS OF WARRANTIES OR LIABILITY, SECTIONS 4 AND/OR 5 MAY NOT PARTIALLY OR ENTIRELY APPLY TO YOU. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
6. Restrictions and Export: You may use the Product for your own internal purposes only and may not resell Products, and you must use the Products in accordance with all applicable laws. You represent and warrant to us that you will not, directly or indirectly: (1) sell, export, reexport, transfer, divert, or otherwise dispose of Products to any destination, entity, or person prohibited by the laws or regulations of the United States, or (2) use Products for any use prohibited by the laws or regulations of the United States and/or your local jurisdiction. Products embody and are covered and protected by our intellectual property rights, which may include patent rights. We grant you a limited right to use Products in accordance with the Contract, and no other right or license is granted to you or any third party under our intellectual property rights, by implication or estoppel or otherwise. ANDalyze reserves all rights not expressly granted herein.
7. Indemnity: You shall indemnify and hold harmless ANDalyze and its officers, directors, employees and agents, from and against any and all third party demands, claims, actions, causes of action, proceedings, suits, assessments, losses, damages, liabilities, judgments, fines, penalties, settlements, interest, cost and expenses (including reasonable attorneys’ fees) arising out of or in connection with an allegation based upon (i) your use or distribution of the Product; (ii) your combination of the Product with non-ANDalyze products or materials; and/or (iii) your breach of Section 6. You shall defend us from such claims at our direction. You shall notify us promptly of any incident involving Products resulting in personal injury or damage to property, and you shall fully cooperate with us in the investigation of such incident and provide us with all related statements, reports and tests available to you.
8. ANDalyze Rights: To secure payment of amounts due by you, we retain a security interest in Products delivered to you, and the Contract shall be deemed a security agreement under the Uniform Commercial Code as adopted by Illinois. If we request, you will execute all documents necessary to perfect this security interest. We shall have a security interest in, and a lien upon, Products until you have paid for them in full. If you default in any payment for a Product, you will make such Product available to us for repossession immediately upon receipt of notice. If any claim is made or likely to be made by a third party alleging that the manufacture, use or sale of a Product infringes such third party’s intellectual property rights, then we may, at our discretion and expense, (i) procure a license for you to continue using the allegedly infringing Product, or (ii) instruct you to return the Product at our expense (in which case you will promptly return the Product) in which case we will either deliver a replacement Product, or return amounts paid by you for the returned Product, less reasonable depreciation.
9. Miscellaneous: If one or more of these Conditions are held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remaining Conditions shall be unimpaired. We shall not be liable for any loss, damage or penalty as a result of any delay or failure due to any cause beyond our reasonable control. The Contract shall be governed by and construed in accordance with the laws of the State of Illinois, without giving effect to any principles of conflicts of laws, and any and all suits hereunder shall be brought and resolved solely and exclusively in, and the parties hereby irrevocably consent to the exclusive jurisdiction and proper venue of, the state and federal courts located in Chicago, Illinois, U.S.A., and waive any objections thereto based on any ground including improper venue or forum non-conveniens. Notwithstanding the foregoing, we may enforce judgments or seek injunctive relief for an infringement or threatened infringement of intellectual property rights in any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Contract. Our failure to exercise any rights shall not constitute a waiver of our rights to seek damages and shall not constitute a waiver of any subsequent failure, delay, or breach. Our relationship with you is solely that of independent contractors, and neither of us shall be considered employees, agents, partners, franchisees, owners, joint venturers or representatives of the other. Any notices or consents under this Agreement to either party must be in writing and personally delivered or sent by certified or registered mail, return receipt requested, or by nationally recognized overnight express courier, to the address specified above or such other address as a party may specify in writing. Such notices will be effective upon receipt, which may be shown by confirmation of delivery. Notices to ANDalyze shall be sent to the attention of its Chief Executive Officer.
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