1.   General
1.1.   Definitions: Buyer means the person, firm, company or other organization who or which has ordered Products or Services from the Company. Company means Covaris, Inc. or any subsidiary thereof. Contract means any contract, other than these Terms and Conditions of Sale, for the sale and purchase of Products or Services between the Company and the Buyer, including whichever occurs first of any written quotation of the Company which is accepted by the Buyer or any order placed by the Buyer which is accepted in writing by the Company. Products means all goods manufactured and supplied by the Company and all equipment manufactured or supplied by the Company which are of a capital nature, including without limitation, instruments, computers, printers and non-expendable accessories and parts. Services means all advice given and services performed by the Company for Buyer, including the processing of Buyer-supplied materials by Company using Company equipment and/or personnel, whether at a Company facility or a Buyer facility. Unless otherwise agreed, Buyer-supplied materials will be provided at Buyer's expense. Covaris Software means all software that is pre-loaded and installed on the Products, other than Third Party Software. Documentation means all user documentation provided by the Company to the Buyer for the Products. Third Party Software means all third party software and documentation provided by the Company to the Buyer in connection with the Products.

1.2.   The Company's sale of the Products and Services to the Buyer is subject to these Terms and Conditions of Sale, and by purchasing the Products or Services the Buyer accepts and agrees to be bound by such Terms and Conditions of Sale. To the extent any terms of these Terms and Conditions are not applicable to the Products and/or Services purchased by Buyer, such terms will not apply.

2.   Prices and Quotations
2.1.   The price of the Products and Services will be the Company's price exclusive of any sales taxes. All quotations issued by the Company for the supply of Products and Services shall remain open for acceptance for the period stated in the quotation or, if none stated, for ninety (90) days. In all other cases, prices payable are those currently in effect, but are subject to change without notice.

2.2.   Once an order has been accepted, the Company shall not modify prices at any time before delivery to the Buyer unless to reflect any changes resulting from any alteration in or addition to the Buyer's requirements. Unless otherwise agreed to in writing, extra charges will be made for all applicable handling, freight, content, packaging, insurance or other similar costs. The Buyer is liable for all taxes other than taxes on Company's income.

3.   Payment
3.1.   Unless otherwise agreed to in writing, payment in full shall be made to the Company in the currency invoiced no later than thirty (30) days from the date of invoice.

3.2.   In the event of late payment the Company reserves the right to (i) suspend deliveries and cancel any of its outstanding obligations, (ii) charge interest at an annual rate equal to 8% (or if lower, the maximum interest rate permitted under Massachusetts law) on all unpaid amounts calculated on a day to day basis until the actual date of payment, and (iii) seek any other remedies available under the law. The Buyer is liable for any fees, including attorney and collection fees, that the Company may incur in its efforts to collect any late payments from the Buyer.

4.   Changes
4.1. The Company reserves the right to make any change on prior notice in the specification of the Products which does not materially affect the installation, performance, or price thereof. The Buyer shall confirm or cancel any outstanding order promptly on receipt of such notice. If the Company does not receive a cancellation notice from the Buyer within seven (7) days of the Company's notice to the Buyer of a change in a specification, the Buyer shall be deemed to have accepted such change.

5.   Delivery
5.1.   The Company will select the method of shipment and the carrier to be used, unless otherwise agreed upon in the Contract. Unless otherwise agreed, shipment will be F.O.B. (UCC) Company's shipping point to destinations in US and Canada and EXW (Incoterms 2000) Company's shipping point for all other destinations. The Company will not be responsible for any loss or damage to the Products following delivery to the carrier. At the request of the Buyer, the Company may provide insurance coverage for the Products during transit for the benefit of the Buyer, at the Buyer's cost.

5.2.   If the Buyer fails to accept delivery of the Products within a reasonable period after receiving notice from the Company that they are ready for delivery, the Buyer shall nevertheless pay for the Products as provided in Section 3 above and the Company, in its sole discretion, may dispose of or store the Products at the Buyer's expense.

5.3.   The Company will use commercially reasonable efforts to avoid delay in delivery on the notified delivery date(s). Failure to deliver by the specified date(s) will not be a sufficient cause for cancellation, nor will the Company be liable for any direct, indirect, consequential or economic loss due to delay in delivery.

5.4.   The Buyer shall promptly and thoroughly inspect all Products shipped by the Company for damage and shortage before signing the carrier receipt, and note the nature and extent of such damage or shortage directly on such receipt. In the event of either obvious or concealed damage, the Buyer must notify the Company within three (3) working days in writing, retaining both goods and damaged packaging for possible inspection by the carrier. In the event the carrier does not issue a damage call tag, the Buyer shall return such damaged goods to the Company or to a third party as directed by the Company, packaged carefully and freight pre-paid by the Buyer, for the Company's inspection. The Company will determine, at its sole discretion, whether the Products were damaged at the time of shipment F.O.B. Company's shipping point or CIP place of destination. The Company's sole obligation shall be, at its option, to replace or repair any Products damaged at such shipping point, or refund the net invoice price, provided the above conditions have been met. This procedure applies with equal force to any Products that the Company drop-ships to Buyers. Such replacement, repair or refund will be Buyer's sole and exclusive remedy for any Product damaged at the shipping point.

5.5.   Where delivery of any Product requires an export license or other authorization before shipment, the Company shall not be responsible for any delay in delivery due to delay in, or refusal of, such license or authorization.

6.   Risk and Title
6.1.   The Buyer shall bear the risk of loss to the Products after delivery to the carrier. Title to the Products shall pass to the Buyer on delivery to the carrier. The Buyer shall not sell, market or solicit sales of the Products or Services or remove any labeling from the Products or packaging. The Buyer shall not dispose of or encumber the Products until the Company has been paid in full.

7.   Returns and Exchanges
7.1. Except as set forth in paragraph 5.4, products may only be returned at the Company's option and with the Company's prior authorization. The Company, at its sole discretion, may authorize a return, provided that (i) the Products to be returned have not been damaged or used, and are in a resalable condition, (ii) the Products to be returned are of current design and finish and are in current production (e.g., were not custom-made or from a special order), and (iii) proof of purchase is established for such returned Products. Any returned Products must be shipped properly to the Company's address within thirty (30) days from the date of invoice.

7.2.   At the Company's sole discretion, authorized Products may be returned for exchange or credit. A restocking charge will be applied to all Products returned for exchange or credit.

8.   Services
8.1.   Where the Company is to provide Services, the Buyer shall ensure that adequate and safe facilities exist at its premises and that the Company is properly notified of any relevant regulations.

8.2   Where the Company is to provide Services involving the processing of Buyer materials using Company equipment (whether performed at a Buyer facility or at a Company facility), Buyer will verify the contents of all materials to be processed and indicate whether Buyer believes the processing to be performed may cause damage or otherwise pose a hazard to Company personnel and/or equipment. "Processing" may include subjecting the Buyer materials to acoustic treatment, or mechanical crushing or other physical disruption of Buyer materials.

8.3   If in Company's sole discretion, the performance of Services presents a hazardous condition for Company personnel and/or equipment, or Buyer fails to provide, or identify a source for materials suitable for the performance of Services, Company may refuse to perform any further such Services. Upon refusal to perform Services, Company shall return Buyer materials, if any, including materials that may have been processed.

9.   Restricted Use, Health, Safety and Waste
9.1.   The Buyer will abide by all use restrictions pertaining to the Products, as set forth herein, in the Company's catalogue or on the Product and accompanying documentation, and the Buyer will not use the Products in contravention of any such restrictions. Unless otherwise provided in writing by the Company, the Buyer will only use the Products for the Buyer's internal research use. Without limiting the foregoing, the Buyer shall not: (i) use the Products in a manufacturing process or in manufactured products, (ii) use the Products in medical or clinical applications, or (iii) use the Products to provide commercial services for or on behalf of a third party. Buyer will comply with all regulatory requirements related to the Buyer's use of Products. The Buyer shall not make, use (except for demonstration), modify, reproduce, disassemble, decompile, reverse engineer, translate, reconstruct or improve the Products, or practice any intellectual property rights of the Company, except as explicitly provided hereunder. In addition, the Buyer shall indemnify the Company and hold the Company harmless from and against any and all claims, damages, losses, costs, fees, expenses and other liabilities of whatever nature that Company suffers or incurs by reason of any violation of this Section 9.1.

9.2.   The Buyer shall ensure that (i) the specification of the Products is safe for the intended use, (ii) the Products are handled in a safe manner and (iii) any waste originating from the Products is disposed of in accordance with any relevant laws and regulations.

10.   Warranty.
Unless otherwise provided in a Contract, the following will apply:

10.1.   THE COMPANY MAKES NO WARRANTY WITH RESPECT TO THE PRODUCTS OR SERVICES, EXPRESSED OR IMPLIED, AND DELIVERS ITS PRODUCTS "AS IS". THE COMPANY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALSO SPECIFICALLY DISCLAIMS ANY OTHER WARRANTY UNDER THE UNIFORM COMMERCIAL CODE AS IN EFFECT IN ANY STATE OF THE UNITED STATES. NO REPRESENTATION OR WARRANTY, INCLUDING BUT NOT LIMITED TO STATEMENTS OF QUALITY, SUITABILITY FOR USE OR PERFORMANCE, WHETHER MADE BY EMPLOYEES OR THE COMPANY OR ITS DISTRIBUTORS, WILL BE CONSIDERED A WARRANTY BY THE COMPANY FOR ANY PURPOSE OR CREATE ANY LIABILITY ON THE PART OF THE COMPANY. THE COMPANY HEREBY EXPRESSLY DISCLAIMS, AND BUYER HEREBY EXPRESSLY WAIVES, ANY WARRANTY REGARDING RESULTS OBTAINED THROUGH THE USE OF THE PRODUCTS OR PERFORMANCE OF THE SERVICES, INCLUDING WITHOUT LIMITATION ANY CLAIM OF INACCURATE, INVALID, OR INCOMPLETE RESULTS.

10.2.   THE COMPANY WILL BE UNDER NO OBLIGATION WHATSOEVER TO PROVIDE ANY REPAIR, REFUND OR REPLACEMENT, OR ANY OTHER REMEDY, TO ANY USER OF THE COMPANY'S PRODUCTS, UNDER ANY THEORY OF LIABILITY, WHETHER OR NOT SOUNDING IN TORT, PROPERTY, WARRANTY, CONTRACT OR OTHERWISE. ANY REPAIR OR REPLACEMENT OF A PRODUCT, OR REFUND OF ANY AMOUNT PAID THEREFOR, WILL BE PROVIDED IN THE COMPANY'S SOLE DISCRETION AND AT ITS SOLE OPTION. IN NO EVENT WILL THE COMPANY BE LIABLE TO ANY USER OF THE COMPANY'S PRODUCTS FOR ANY DAMAGES WHATSOEVER, WHETHER OR NOT DIRECT, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL, OR IN THE NATURE OF ADDITIONAL COSTS, LOST REVENUE OR LOST PROFITS.

10.3.   Notwithstanding 10.1 and 10.2 above, and to the extent such warranties are not able to be disclaimed, the Company herein provides all warranties to its customers as necessary to comply with applicable laws, but only to the extent such warranties are not able to be disclaimed by the Company.

10.4.   The Company warrants that all Services will be carried out with reasonable care and skill. The Company's sole liability for breach of this warranty shall be at its option to give credit for or re-perform the Services in question. This warranty shall only extend for a period of sixty (60) days after the completion of the Services.

11.  Limitation of Liability
11.1.   The Company shall have no liability under any warranties contained in Section 10.3 or 10.4 arising from: specifications or materials supplied by the Buyer; fair wear and tear; willful damage or negligence of the Buyer or its employees or agents; abnormal working conditions at the Buyer's premises; failure to follow the Company's instructions (whether oral or in writing); misuse or alteration or repair of the Products without the Company's approval; or if the total price for the Products has not been paid.

11.2.   THE COMPANY SHALL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND FROM ANY CAUSE ARISING OUT OF THE SALE, INSTALLATION, USE OR INABILITY TO USE ANY PRODUCT OR SERVICE, OR ANY FAILURE TO OBTAIN DESIRED RESULTS, OR THE DAMAGE OR OTHER LOSS OF BUYER MATERIALS DURING PERFORMANCE OF SERVICES (INCLUDING PROCESSING OF BUYER MATERIALS), INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF USE, GOODWILL OR BUSINESS INTERRUPTION, WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to the Buyer.

11.3.   IN NO EVENT WILL THE COMPANY HAVE LIABILITY (WHETHER IN AN ACTION IN NEGLIGENCE, CONTRACT OR TORT OR BASED ON A WARRANTY OR OTHERWISE) FOR ANY AMOUNT IN EXCESS OF THE AMOUNTS ACTUALLY RECEIVED BY THE COMPANY FROM THE BUYER UNDER THE CONTRACT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE APPLICABLE CLAIM OR ACTION. Some states/jurisdictions do not allow the limitation of damages, so the above limitation may not apply to the Buyer.

12.   Intellectual Property Rights
12.1. Where the Buyer supplies designs, drawings, and specifications to the Company to enable it to manufacture non-standard or custom made Products, the Buyer warrants that such manufacture will not infringe the intellectual property rights of any third party.

12.2.   All intellectual property rights and goodwill in the Products and Services, including any inventions, trade secrets, know how or other intellectual property developed or otherwise discovered in processing of Buyer materials or the provision of other Services, shall at all times remain vested in, be owned by, and inure to the benefit of the Company. The Buyer hereby assigns, and agrees to assign, to the Company any rights the Buyer may obtain in and to the Products and Services.

13.   Indemnification
13.1.   Except to the extent the claim arises as a result of the gross negligence of the Company, the Buyer shall indemnify and hold the Company harmless from and against any and all claims, damages, losses, costs, fees, expenses and other liabilities of whatever nature that the Company suffers or incurs (i) arising in connection with the Buyer's use of the Products or materials provided by the Company in connection with performing Services, (ii) alleging that the use to which the Products are put infringes or misappropriates the intellectual property rights of any third party, (iii) alleging that the use of materials supplied by the Buyer infringes or misappropriates the intellectual property rights of any third party, or (iv) arising out of the performance of Services by the Company on materials supplied by the Buyer to the extent such liability results from use of or exposure to a hazardous material provided by the Buyer.

14.   Insolvency
14.1.   In the event that the Buyer becomes bankrupt or, being a company, goes into liquidation (other than for the purposes of reconstruction or amalgamation), the Company shall be entitled immediately to terminate the Contract without notice and without prejudice to any other rights of the Company hereunder.

15.   Force Majeure
15.1.   The Company shall not be liable in respect of the non-performance of any of its obligations to the extent such performance is prevented by any circumstances beyond its reasonable control including but not limited to strikes, lock outs or labor disputes of any kind (whether relating to its own employees or others), fire, flood, explosion, natural catastrophe, military operations, blockade, sabotage, acts of terrorism, revolution, riot, civil commotion, war or civil war, plant breakdown, computer or other equipment failure and inability to obtain equipment.

15.2.   If an event of force majeure exceeds one month the Company may cancel the Contract without liability.

16.   Licenses
16.1.   The Buyer will not use any software with the Products except the Covaris Software and the Third Party Software. The Buyer agrees that all Covaris Software and Third Party Software is licensed to the Buyer, and not sold. Subject to these Terms and Conditions, the Company hereby grants the Buyer a limited, non exclusive, non-transferable, royalty free, non sublicenseable, worldwide license to use the Covaris Software solely for operating the Products as permitted under these Terms and Conditions. No rights are granted to, and the Buyer shall not, produce copies of, reverse-engineer, reproduce, disassemble, decompile, modify, reconstruct, or create any derivative works based upon the Covaris Software.

16.2.   Subject to the terms and conditions of this Agreement, the Company hereby grants the Buyer a limited, non-exclusive, royalty-free, non-transferable, non-sublicenseable, worldwide license to use, reproduce, display, distribute and modify and create derivative works of all or any portion or portions of the Documentation for purposes of creating new versions of the Documentation and to distribute such Documentation solely for use in connection with operating the Products as permitted under these Terms and Conditions.

16.3.   The Buyer acknowledges and agrees that its use of any Third Party Software is subject to the terms and conditions of separate license agreements supplied by the applicable third party licensor of such Third Party Software.

17.   Governing Law; Jurisdiction
These Terms and Conditions and any Contract shall be governed by the laws of The Commonwealth of Massachusetts (without reference to conflicts of law provisions thereof) and United States Federal law to the extent applicable. Any controversies or claims arising from, or relating to, this Agreement shall be adjudicated exclusively by the courts of the Commonwealth of Massachusetts or federal courts located in The Commonwealth of Massachusetts. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

18.   Product Specific Terms; Conflict
18.1. Additional terms and conditions govern the sale of certain Products. Such additional terms and conditions are available from the Company and shall take precedent in the event of any inconsistency with these conditions. These Terms and Conditions shall take precedent in the event of any inconsistencies with a Contract.

19.   General
19.1.   The Buyer may not assign these Terms and Conditions or any Contract, in whole or in part, without the Company's prior written consent. Any attempt to assign these Terms and Conditions or any Contract other than as permitted above will be null and void. The rights and liabilities of the Company and Buyer hereunder will bind and inure to the benefit of their respective successors and assigns.

19.2.   Any notice under this Agreement will be in writing and delivered by personal delivery, overnight courier, or certified or registered mail, return receipt requested or email, and will be deemed given upon personal delivery, two (2) days after deposit with overnight courier or five (5) days after deposit in the mail or twenty-four (24) hours after the party who provides notice receives delivery receipt confirmation. Notices will be sent to the Company or Buyer at its address and to the designee set forth in the applicable Contract or such other address and designee as the Company or Buyer may specify in writing pursuant to this Section.

19.3.   Nothing in these Terms and Conditions will be construed to imply a joint venture, partnership, or agency relationship between the Company and Buyer, and the Company will be considered an independent contractor when performing Services.

19.4.   Except as explicitly set forth herein, no failure or delay by the Company or Buyer in exercising any right, power, or remedy under these Terms and Conditions shall operate as any waiver of any such right, power, or remedy.

19.5.   If any provision of these Terms and Conditions or a Contract is held by a court of competent jurisdiction to be invalid or unenforceable for any reason, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way. The Company and Buyer agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.

19.6.   The Buyer shall not export, directly or indirectly, any Product without first obtaining an export license from the U.S. Department of Commerce or other agency of the U.S. Government, as required. The Company will comply with all import and trade laws and regulations as applicable.

19.7.   These Terms and Conditions, together with any applicable Contract, constitutes the complete and exclusive agreement between the Company and Buyer with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter.

Covaris Terms of Use