Terms & Conditions

TERMS & CONDITIONS OF SALE FOR Hach Lange NZ Limited PRODUCTS AND SERVICES

This document sets forth the Terms & Conditions of Sale ("Terms") for goods manufactured and/or supplied, and services provided, by Hach Lange NZ Limited of Penrose, Auckland—New Zealand ("HPNZ") and sold to the original purchaser thereof ("Buyer"). Unless otherwise specifically stated herein, the term "HPNZ" includes only HPNZ Company and none of its affiliates. Unless otherwise specifically stated in a previously-executed written purchase agreement signed by authorized representatives of HPNZ and Buyer, these Terms establish the rights, obligations and remedies of HPNZ and Buyer which apply to this offer and any resulting order or contract for the sale of HPNZ's goods and/or services ("Products").

  1. APPLICABLE TERMS:

    These Terms are contained directly and/or by reference in HPNZ's offer, order acknowledgment, and invoice documents. The first of the following acts constitutes an acceptance of HPNZ's offer and not a counteroffer and creates a contract of sale ("Contract") in accordance with these Terms: (i) Buyer's issuance of a purchase order document against HPNZ's offer; (ii) acknowledgement of Buyer's order by HPNZ; or (iii) commencement of any performance by HPNZ pursuant to Buyer's order. Provisions contained in Buyers purchase documents (including electronic commerce interfaces) that materially alter, add to or subtract from the provisions of these Terms are not a part of the Contract.

  2. CANCELLATION:

    Buyer may cancel goods orders subject to fair charges for HPNZ's expenses including handling, inspection, restocking, freight and invoicing charges (typically, 30% on stock items), provided that Buyer first obtains HPNZ's written approval and then returns the goods to HPNZ at Buyer's expense within 30 days of delivery in the same condition as received including original packaging. Credit on Indent goods will be accepted at the discretion of HPNZ management. Buyer may cancel service orders on ninety (90) day's prior written notice and refunds will be prorated based on the duration of the service plan. Inspections and re-instatement fees may apply upon cancellation or expiration of service programs.

  3. DELIVERY; DAMAGE & INSURANCE; ADDITIONAL SERVICE TERMS:

    All goods are at Buyer's risk from the time of delivery or collection from HPNZ's premises and such goods shall be fully insured by Buyer until HPNZ is paid. HPNZ will use commercially reasonable efforts to deliver the Products ordered herein within the time specified on the face of this Contract or, if no time is specified, within HPNZ's normal lead-time necessary for HPNZ to deliver the Products sold hereunder. Upon prior agreement with Buyer and for an additional charge, HPNZ will deliver the Products on an expedited basis. ADDITIONAL SERVICE TERMS: Payment in full is due at the time of agreement activation. Standard service delivery hours are 8 am – 5 pm Monday through Friday, excluding holidays. Any travel over and above two hours total will be charged at normal HPNZ rates and is calculated from the nearest HPNZ service centre, which are located in Sydney, Brisbane and Melbourne. Minimum contract value per visit applies. Service Plus Conditions: WRTUPG (Warranty Upgrade): Warranty Upgrade program must be purchased within 30 days of instrument purchase; for free onsite startup customer must have the unit mounted, plumbed and electrically connected. FSP (Field Service Partnership): Units will be evaluated on first visit and any repairs/parts required above preventative maintenance will be billed separately.

  4. INSPECTION:

    Buyer will promptly inspect and accept any Products delivered pursuant to this Contract after receipt of such Products. In the event the Products do not conform to any applicable specifications, Buyer will promptly notify HPNZ of such nonconformance in writing. HPNZ will have a reasonable opportunity to repair or replace the nonconforming product at its option. Buyer will be deemed to have accepted any Products delivered hereunder and to have waived any such nonconformance in the event such a written notification is not received by HPNZ within thirty (30) days of delivery.

  5. PRICES & ORDER SIZES:

    All prices are in New Zealand dollars and are based on delivery as stated above. Prices do not include any charges for services such as insurance; brokerage fees; sales, use, inventory or excise taxes; import or export duties; special financing fees; value added taxes; income or royalty taxes imposed outside the U.S.; consular fees; special permits or licenses; or similar charges imposed upon the production, sale, distribution, or delivery of Products hereunder. Buyer will either pay any and all such taxes and charges or provide HPNZ with acceptable exemption certificates, which obligation survives performance under this Contract. HPNZ reserves the right to establish minimum order sizes and will advise Buyer accordingly.

  6. PAYMENTS:

    All payments must be made in New Zealand dollars. For Internet orders, the purchase price is due at the time and in the manner set forth at www.hachpacific.co.nz. Invoices for all other orders are due and payable (1) NET 30 DAYS from date of the invoice without regard to delays for inspection or transportation, with payments to be made by check to HPNZ at the above address or by wire transfer to the account stated on the front of Hach's invoice, or (2) for customers with no established credit, HPNZ may require cash or credit card payment in advance of delivery. In the event payments are not made or not made in a timely manner, HPNZ may, in addition to all other remedies provided at law, either: (1) declare Buyer's performance in breach and terminate this Contract for default; (2) withhold future shipments until delinquent payments are made; (3) deliver future shipments on a cash-with-order or cash-in-advance basis even after the delinquency is cured; (4) charge interest on the delinquency at a rate of 1-1/2% per month or the maximum rate permitted by law, if lower, for each month or part thereof of delinquency in payment plus applicable storage charges and/or inventory carrying charges; (5) repossess the Products for which payment has not been made; (6) recover all costs of collection including reasonable attorney's fees; or (7) combine any of the above rights and remedies as is practicable and permitted by law. Buyer is prohibited from setting off any and all monies owed under this from any other sums, whether liquidated or not, that are or may be due Buyer, which arise out of a different transaction with HPNZ or any of its affiliates. Should Buyer's financial responsibility become unsatisfactory to HPNZ in its reasonable discretion, HPNZ may require cash payment or other security. If Buyer fails to meet these requirements, HPNZ may treat such failure as reasonable grounds for repudiation of this Contract, in which case reasonable cancellation charges shall be due HPNZ. Buyer grants HPNZ a security interest in the Products to secure payment in full, which payment releases the security interest but only if such payments could not be considered an avoidable transfer under the U.S. Bankruptcy Code or other applicable laws. Buyer's insolvency, bankruptcy, assignment for the benefit of creditors, or dissolution or termination of the existence of Buyer, constitutes a default under this Contract and affords HPNZ all the remedies of a secured party under the U.C.C., as well as the remedies stated above for late payment or non-payment.

  7. LIMITED WARRANTY:

    HPNZ warrants that Products sold hereunder will be free from defects in material and workmanship and will conform to any express written warranty pertaining to the specific goods purchased, which for most HPNZ instruments is for a period of twelve (12) months from delivery. HPNZ warrants that services furnished hereunder will be free from defects in workmanship for a period of ninety (90) days from the completion of the services. Parts provided by HPNZ in the performance of services may be new or refurbished parts functioning equivalent to new parts. Any non-functioning parts that are repaired by HPNZ shall become the property of HPNZ. No warranties are extended to consumable items such as, without limitation, reagents, batteries, mercury cells, and light bulbs. All other guarantees, warranties, conditions and representations, either express or implied, whether arising under any statute, law, commercial usage or otherwise, including implied warranties of merchantability and fitness for a particular purpose, are hereby excluded. The sole remedy for Products not meeting this Limited Warranty is replacement, credit or refund of the purchase price. This remedy will not be deemed to have failed of its essential purpose so long as HPNZ is willing to provide such replacement, credit or refund.

  8. INDEMNIFICATION:

    Indemnification applies to a party and to such party's successors-in-interest, assignees, affiliates, directors, officers, and employees ("Indemnified Parties"). HPNZ is responsible for and will defend, indemnify and hold harmless the Buyer Indemnified Parties against all losses, claims, expenses or damages which may result from accident, injury, damage, or death due to HPNZ’s breach of the Limited Warranty. This indemnification is provided on the condition that the Buyer is likewise responsible for and will defend, indemnify and hold harmless the HPNZ Indemnified Parties against all losses, claims, expenses or damages which may result from accident, injury, damage, or death due to the negligence or misuse or misapplication of any goods or services by the Buyer or any third party affiliated or in privity with Buyer.

  9. PATENT PROTECTION:

    Subject to all limitations of liability provided herein, HPNZ will, with respect to any Products of HPNZ’s design or manufacture, indemnify Buyer from any and all damages and costs as finally determined by a court of competent jurisdiction in any suit for infringement of any U.S. patent (or European patent for Products that HPNZ sells to Buyer for end use in a member state of the E.U.) that has issued as of the delivery date, solely by reason of the sale or normal use of any Products sold to Buyer hereunder and from reasonable expenses incurred by Buyer in defense of such suit if HPNZ does not undertake the defense thereof, provided that Buyer promptly notifies HPNZ of such suit and offers HPNZ either (i) full and exclusive control of the defense of such suit when Products of HPNZ only are involved, or (ii) the right to participate in the defense of such suit when products other than those of HPNZ are also involved. HPNZ's warranty as to use patents only applies to infringement arising solely out of the inherent operation of the Products according to their applications as envisioned by HPNZ's specifications. In case the Products are in such suit held to constitute infringement and the use of the Products is enjoined, HPNZ will, at its own expense and at its option, either procure for Buyer the right to continue using such Products or replace them with non-infringing products, or modify them so they become non-infringing, or remove the Products and refund the purchase price (prorated for depreciation) and the transportation costs thereof. The foregoing states the entire liability of HPNZ for patent infringement by the Products. Further, to the same extent as set forth in HPNZ's above obligation to Buyer, Buyer agrees to defend, indemnify and hold harmless HPNZ for patent infringement related to (x) any goods manufactured to the Buyer's design, (y) services provided in accordance with the Buyer’s instructions, or (z) HPNZ's Products when used in combination with any other devices, parts or software not provided by HPNZ hereunder.

  10. TRADEMARKS AND OTHER LABELS:

    Buyer agrees not to remove or alter any indicia of manufacturing origin or patent numbers contained on or within the Products, including without limitation the serial numbers or trademarks on nameplates or cast, molded or machined components.

  11. SOFTWARE.

    All licenses to HPNZ's separately-provided software products are subject to the separate software license agreement(s) accompanying the software media. In the absence of such terms and for all other software, HPNZ grants Buyer only a personal, non-exclusive license to access and use the software provided by HPNZ with Products purchased hereunder solely as necessary for Buyer to enjoy the benefit of the Products. A portion of the software may contain or consist of open source software, which Buyer may use under the terms and conditions of the specific license under which the open source software is distributed. Buyer agrees that it will be bound by any and all such license agreements. Title to software remains with the applicable licensor(s).

  12. NONDISCLOSURE AND NON-USE OF PROPRIETARY INFORMATION:

    "Proprietary Information" means any information, technical data or know-how in whatever form, including, but not limited to, documented information, machine readable or interpreted information, information contained in physical components, mask works and artwork, which HPNZ considers proprietary or Proprietary, including but not limited to HPNZ's service and maintenance manuals. Buyer and its customers, employees and agents will keep confidential all such Proprietary Information obtained directly or indirectly from HPNZ and will not transfer or disclose it without HPNZ's prior written consent, or use it for the manufacture, procurement, servicing or calibration of Products or any similar products, or cause such products to be manufactured, serviced or calibrated by or procured from any other source, or reproduce or otherwise appropriate it without HPNZ's prior written consent. All such Proprietary Information remains property of HPNZ. No right or license is granted hereby to Buyer or its customers, employees or agents, expressly or by implication, with respect to the Proprietary Information or any patent, patent application or other proprietary right of HPNZ, except for the limited use licenses implied by law.

  13. CHANGES AND ADDITIONAL CHARGES:

    HPNZ reserves the right to make changes in design or additions or improvements to any products of the same general class as Products being delivered hereunder without liability or obligation to incorporate such changes, additions or improvements to Products ordered by Buyer unless specifically agreed upon in writing reasonably in advance of such Products' delivery date. Services which must be performed as a result of any of the following conditions are subject to additional charges for labor, travel and parts: (a) equipment alterations not authorized in writing by HPNZ; (b) damage resulting from improper use or handling, accident, neglect, power surge, or operation in an environment or manner in which the instrument is not designed to operate or is not in accordance with HPNZ's operating manuals; (c) the use of parts or accessories not provided by HPNZ; (d) damage resulting from acts of war, terrorism or nature; or (e) services outside standard business hours.

  14. SITE ACCESS / PREPARATION / WORKER SAFETY / ENVIRONMENTAL COMPLIANCE:

    In connection with services provided by HPNZ, Buyer agrees to permit prompt access to equipment. Buyer assumes full responsibility to back-up or otherwise protect its data against loss, damage or destruction before services are performed. Buyer is the operator and in full control of its premises, including those parts of the premises where HPNZ employees or contractors are performing service, repair and maintenance activities. Buyer will ensure that all necessary measures are taken for safety and security of the working conditions and environment during the performance of services. Buyer is the generator of any wastes, including without limitation hazardous wastes, resulting from such services, repair and maintenance. Buyer is solely responsible to arrange for the disposal of any wastes at its own expense. Buyer will, at its own expense, provide HPNZ employees and contractors working on Buyer's premises with all information and training required under applicable safety compliance regulations and Buyer’s policies. If the instrument to be serviced is in a Confined Space (as defined under OSHA regulations), Buyer is solely responsible to make it available to be serviced in an unconfined space. HPNZ service technicians will not work in Confined Spaces. In the event that a Buyer requires HPNZ employees or contractors to attend safety or compliance training programs provided by Buyer, Buyer will pay HPNZ the standard hourly rate and expense reimbursement for such training attended. The attendance at or completion of such training does not create or expand any warranty or obligation of HPNZ and does not serve to alter, amend, limit or supersede any part of this Contract.

  15. LIMITATIONS ON USE:

    Buyer will not use any Products for any purpose other than those identified in HPNZ's catalogs and literature as intended uses. Unless HPNZ has advised the Buyer in writing, in no event will Buyer use any Products in drugs, food additives, food or cosmetics, or medical applications for humans or animals. In no event will Buyer use in any application any Product that requires FDA 510(k) clearance unless and only to the extent the Product has such clearance. Any warranty granted by HPNZ is void if any goods covered by such warranty are used for any purpose not permitted hereunder.

  16. EXPORT AND IMPORT LICENSES AND COMPLIANCE WITH LAWS:

    Unless otherwise specified in this Contract, Buyer is responsible for obtaining any required export or import licenses. HPNZ represents that all Products delivered hereunder will be produced and supplied in compliance with all applicable laws and regulations. Buyer will comply with all laws and regulations applicable to the installation or use of all Products, including applicable import and export control laws and regulations of the U.S., E.U. and any other country having proper jurisdiction, and will obtain all necessary export licenses in connection with any subsequent export, re-export, transfer and use of all Products and technology delivered hereunder. Buyer will not sell, transfer, export or re-export any HPNZ Products or technology for use in activities which involve the design, development, production, use or stockpiling of nuclear, chemical or biological weapons or missiles, nor use HPNZ Products or technology in any facility which engages in activities relating to such weapons. Buyer will comply with all local, national, and other laws of all jurisdictions globally relating to anti-corruption, bribery, extortion, kickbacks, or similar matters which are applicable to Buyer's business activities in connection with this Contract, including but not limited to the U.S. Foreign Corrupt Practices Act of 1977, as amended (the "FCPA"). Buyer agrees that no payment of money or provision of anything of value will be offered, promised, paid or transferred, directly or indirectly, by any person or entity, to any government official, government employee, or employee of any company owned in part by a government, political party, political party official, or candidate for any government office or political party office to induce such organizations or persons to use their authority or influence to obtain or retain an improper business advantage for Buyer or for HPNZ, or which otherwise constitute or have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining business or any improper advantage, with respect to any of Buyer’s activities related to this Contract.

  17. FORCE MAJEURE:

    HPNZ is excused from delays in delivery and performance of other contractual obligations under this Contract caused by acts or omissions that are beyond the control of HPNZ, including but not limited to Government embargoes, blockages, seizures or freeze of assets, delays or refusals to grant an export or import license or the suspension or revocation thereof, or any other acts of any Government; fires, floods, severe weather conditions, or any other acts of God; quarantines; labor strikes or lockouts; riots; strife; insurrections; civil disobedience or acts of criminals or terrorists; war; material shortages or delays in deliveries to HPNZ by third parties. In the event of the existence of any force majeure circumstances, the period of time for delivery, payment terms and payments under any letters of credit will be extended for a period of time equal to the period of delay. If the force majeure circumstances extend for six months, HPNZ may, at its option, terminate this Contract without penalty and without being deemed in default or in breach thereof.

  18. NON ASSIGNMENT AND WAIVER:

    Buyer will not transfer or assign this Contract or any rights or interests hereunder without HPNZ’s prior written consent. Failure of either party to insist upon strict performance of any provision of this Contract, or to exercise any right or privilege contained herein, or the waiver of any breach of the terms or conditions of this Contract will not be construed as thereafter waiving any such terms, conditions, rights, or privileges, and the same will continue and remain in force and effect as if no waiver had occurred.

  19. LIMITATION OF LIABILITY:

    None of the HPNZ Indemnified Parties will be liable to Buyer under any circumstances for any special, treble, incidental or consequential damages, including without limitation, damage to or loss of property other than for the Products purchased hereunder; damages incurred in installation, repair or replacement; lost profits, revenue or opportunity; loss of use; losses resulting from or related to downtime of the products or inaccurate measurements or reporting; the cost of substitute products; or claims of Buyer's customers for such damages, howsoever caused, and whether based on warranty, contract, and/or tort (including negligence, strict liability or otherwise). The total liability of the HPNZ Indemnified Parties arising out of the performance or nonperformance hereunder or HPNZ’s obligations in connection with the design, manufacture, sale, delivery, and/or use of Products will in no circumstance exceed in the aggregate a sum equal to twice the amount actually paid to HPNZ for Products delivered hereunder.

  20. APPLICABLE LAW AND DISPUTE RESOLUTION:

    The construction, interpretation and performance hereof and all transactions hereunder shall be governed by the laws of New Zealand, without regard to its principles or laws regarding conflicts of laws. If any provision of this Contract violates any federal, provincial or local statutes or regulations of any countries having jurisdiction of this transaction, or is illegal for any reason, said provision shall be self-deleting without affecting the validity of the remaining provisions. Unless otherwise specifically agreed upon in writing between HPNZ and Buyer, any dispute relating to this Contract which is not resolved by the parties shall be adjudicated in order of preference by a court of competent jurisdiction (i) in Penrose, Auckland if Buyer has sufficient contacts with Auckland, (ii) elsewhere in New Zealand if Buyer has sufficient contacts with New Zealand but not Auckland, or (iii) in a neutral location if Buyer does not have sufficient contacts with New Zealand.

  21. ENTIRE AGREEMENT & MODIFICATION:

    These Terms constitute the entire agreement between the parties and supersede any prior agreements or representations, whether oral or written. No change to or modification of these Terms shall be binding upon HPNZ unless in a written instrument specifically referencing that it is amending these Terms and signed by an authorized representative of HPNZ. HPNZ rejects any additional or inconsistent Terms offered by Buyer at any time, whether or not such terms or conditions materially alter the Terms herein and irrespective of HPNZ's acceptance of Buyer's order for the described goods and services.