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This document sets forth the Terms & Conditions of Sale for goods manufactured and/or supplied, and services provided, by Hach Company of Loveland, Colorado (“Hach”) and sold to the original purchaser thereof (“Buyer”). Unless otherwise specifically stated herein, the term “Hach” includes only Hach Company and none of its affiliates. Unless otherwise specifically stated in a previously-executed written purchase agreement signed by authorized representatives of Hach and Buyer, these Terms & Conditions of Sale establish the rights, obligations and remedies of Hach and Buyer which apply to this offer and any resulting order or contract for the sale of Hach’s goods and/or services (“Products”).
These Terms & Conditions of Sale are contained directly and/or by reference in Hach’s offer, order acknowledgment, and invoice documents. The first of the following acts constitutes an acceptance of Hach’s offer and not a counteroffer and creates a contract of sale (“Contract”) in accordance with these Terms & Conditions: (i) Buyer’s issuance of a purchase order document against Hach’s offer; (ii) acknowledgement of Buyer’s order by Hach; or (iii) commencement of any performance by Hach pursuant to Buyer’s order. Provisions contained in Buyer’s purchase documents (including electronic commerce interfaces) that materially alter, add to or subtract from the provisions of these Terms & Conditions of Sale are not a part of the Contract.
Buyer may cancel goods orders subject to fair charges for Hach’s expenses including handling, inspection, restocking, freight and invoicing charges as applicable, provided that Buyer returns such goods to Hach at Buyer’s expense within thirty (30) days of delivery and in the same condition as received. 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. Seller may cancel all or part of any order prior to delivery without liability if the order includes any Products that Seller determines may not comply with export, safety, local certification, or other applicable compliance requirements.
Delivery will be accomplished FCA Hach’s facility located in Ames, Iowa or Loveland, Colorado, or Romeoville, Illinois United States (Incoterms 2020). Legal title and risk of loss or damage pass to Buyer upon transfer to the first carrier. Hach 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 Hach’s normal lead-time necessary for Hach to deliver the Products sold hereunder. Upon prior agreement with Buyer and for an additional charge, Hach will deliver the Products on an expedited basis. Standard service delivery hours are 8 am – 5 pm Monday through Friday, excluding holidays.
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 Hach of such nonconformance in writing. Hach 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 Hach within thirty (30) days of delivery.
All prices are in U.S. 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; VAT, income or royalty taxes imposed outside the U.S.; consular fees; special permits or licenses; or other charges imposed upon the production, sale, distribution, or delivery of Products. Buyer will either pay any and all such charges or provide Hach with acceptable exemption certificates, which obligation survives performance under this Contract. Hach reserves the right to establish minimum order sizes and will advise Buyer accordingly.
PAYMENTS: All payments must be made in U.S. dollars. For Internet orders, the purchase price is due at the time and manner set forth at www.hach.com. Invoices for all other orders are due and payable NET 30 DAYS from date of the invoice without regard to delays for inspection or transportation, with payments to be made by check to Hach at the above address or by wire transfer to the account stated on the front of Hach’s invoice, or for customers with no established credit, Hach 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, Hach may, in addition to all other remedies provided at law, either: (a) declare Buyer’s performance in breach and terminate this Contract for default; (b) withhold future shipments until delinquent payments are made; (c) deliver future shipments on a cash-with- order or cash-in-advance basis even after the delinquency is cured; (d) charge interest on the delinquency at a rate of 1-1/2% (one and one half percent) 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; (e) repossess the Products for which payment has not been made; (f) recover all costs of collection including reasonable attorney’s fees; or (g) 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 Hach or any of its affiliates. Should Buyer’s financial responsibility become unsatisfactory to Hach in its reasonable discretion, Hach may require cash payment or other security. If Buyer fails to meet these requirements, Hach may treat such failure as reasonable grounds for repudiation of this Contract, in which case reasonable cancellation charges shall be due Hach. Buyer grants Hach 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 Hach 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. See for further wire transfer requirements.
Hach warrants that Products sold hereunder will be free from defects in material and workmanship and will, when used in accordance with the manufacturer’s operating and maintenance instructions, conform to any express written warranty pertaining to the specific goods purchased, which for most Hach instruments is for a period of twelve (12) months from delivery. Hach 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 Hach in the performance of services may be new or refurbished parts functioning equivalent to new parts. Any non-functioning parts that are repaired by Hach shall become the property of Hach. 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 Hach is willing to provide such replacement, credit or refund.
Indemnification applies to a party and to such party’s successors-in-interest, assignees, affiliates, directors, officers, and employees (“Indemnified Parties”). Hach 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 Hach’s breach of the Limited Warranty. Buyer is responsible for and will defend, indemnify and hold harmless the Hach Indemnified Parties against all losses, claims, expenses or damages which may result from accident, injury, damage, or death due to negligence, misuse or misapplication of any goods or services, violations of law, or the breach of any provision of this Contract by the Buyer, its affiliates, or those employed by, controlled by or in privity with them. Buyer’s workers’ compensation immunity, if any, does not preclude or limit its indemnification obligations.
Subject to all limitations of liability provided herein, Hach will, with respect to any Products of Hach’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 Hach 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 Hach does not undertake the defense thereof, provided that Buyer promptly notifies Hach of such suit and offers Hach either (i) full and exclusive control of the defense of such suit when Products of Hach only are involved, or (ii) the right to participate in the defense of such suit when products other than those of Hach are also involved. Hach’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 Hach’s specifications. In case the Products are in such suit held to constitute infringement and the use of the Products is enjoined, Hach 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 Hach for patent infringement by the Products. Further, to the same extent as set forth in Hach’s above obligation to Buyer, Buyer agrees to defend, indemnify and hold harmless Hach 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) Hach’s Products when used in combination with any other devices, parts or software not provided by Hach hereunder.
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.
All licenses to Hach’s separately-provided software products are subject to the separate software license agreement(s) accompanying the software media and/or included as an Appendix to these Terms & Conditions of Sale. Except to the extent such express licenses conflict with the remainder of this paragraph, the following also applies relative to Hach’s software: Hach grants Buyer only a personal, non-exclusive license to access and use the software provided by Hach 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 all such license agreements. Title to software remains with the applicable licensor(s). In connection with Buyer’s use of Products, Hach may obtain, receive, or collect data or information, including data produced by the Products. In such cases, Buyer grants Hach a non-exclusive, worldwide, royalty-free, perpetual, non-revocable license to use, compile, distribute, display, store, process, reproduce, or create derivative works of such data, or to aggregate such data for use in an anonymous manner, solely to facilitate marketing, sales and R&D activities of Hach and its affiliates.
“Proprietary Information” means any information, technical data or know-how in whatever form, whether documented, contained in machine readable or physical components, mask works or artwork, or otherwise, which Hach considers proprietary, including but not limited to service and maintenance manuals. Buyer and its customers, employees and agents will keep confidential all such Proprietary Information obtained directly or indirectly from Hach and will not transfer or disclose it without Hach’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. All such Proprietary Information remains Hach’s property. No right or license is granted to Buyer or its customers, employees or agents, expressly or by implication, with respect to the Proprietary Information or any patent right or other proprietary right of Hach, except for the limited use licenses implied by law. Hach will manage Customer’s information and personal data in accordance with its Privacy Policy, located at http://www.hach.com/privacypolicy.
Hach reserves the right to make design changes or improvements to any products of the same general class as Products being delivered hereunder without liability or obligation to incorporate such changes or improvements to Products ordered by Buyer unless agreed upon in writing before the 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 Hach; (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 Hach’s operating manuals; (c) the use of parts or accessories not provided by Hach; (d) damage resulting from acts of war, terrorism or nature; (e) services outside standard business hours; (f) site prework not complete per proposal; or (g) any repairs required to ensure equipment meets manufacturer’s specifications upon activation of a service agreement.
In connection with services provided by Hach, 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 areas where Hach employees or contractors are performing service, repair and maintenance activities. Buyer will ensure that all necessary measures are taken for safety and security of working conditions, sites and installations during the performance of services. Buyer is the generator of any resulting wastes, including without limitation hazardous wastes. Buyer is solely responsible to arrange for the disposal of any wastes at its own expense. Buyer will, at its own expense, provide Hach 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 that term is defined under OSHA regulations, Buyer is solely responsible to make it available to be serviced in an unconfined space. Hach service technicians will not work in Confined Spaces. In the event that a Buyer requires Hach employees or contractors to attend safety or compliance training programs provided by Buyer, Buyer will pay Hach 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 Hach and does not serve to alter, amend, limit or supersede any part of this Contract.
Buyer will not use any Products for any purpose other than those identified in Hach’s catalogs and literature as intended uses. Unless Hach 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. Buyer will not sell, transfer, export or re-export any Hach 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 Hach Products or technology in any facility which engages in activities relating to such weapons. Unless the “ship- to” address is in California, U.S.A., the Products are not intended for sale in California and may lack markings required by California Proposition 65; accordingly, unless Buyer has ordered Products specifying a California ship-to address, Buyer will not sell or deliver any Hach Products for use in California. Any warranty granted by Hach is void if any goods covered by such warranty are used for any purpose not permitted hereunder.
Unless otherwise specified in this Contract, Buyer is responsible for obtaining any required export or import licenses. 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 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 Hach, 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. Hach asks Buyer to “Speak Up!” if aware of any violation of law, regulation or our Standards of Conduct (“SOC”) in relation to this Contract. See https://www.veraltointegrity.com/ and https://www.veralto.com/integrity-compliance for a copy of the SOC and for access to our Helpline portal.
Buyer is not an agent or representative of Hach and will not present itself as such under any circumstances unless and to the extent it has been formally screened by Hach’s compliance department and received a separate duly-authorized letter from Hach setting forth the scope and limitations of such authorization.
Hach is excused from performance of its obligations under this Contract to the extent caused by acts or omissions that are beyond its control of, 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 Hach 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, Hach may, at its option, terminate this Contract without penalty and without being deemed in default or in breach thereof.
Buyer will not transfer or assign this Contract or any rights or interests hereunder without Hach’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.
None of the Hach Indemnified Parties will be liable to any Buyer Indemnified Parties 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 any Buyer Indemnified Parties’ 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 Hach Indemnified Parties arising out of the performance or nonperformance hereunder or Hach’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 Hach for Products delivered hereunder.
The construction, interpretation and performance hereof and all transactions hereunder shall be governed by the laws of the State of Colorado, without regard to its principles or laws regarding conflicts of laws. If any provision of this Contract violates any Federal, State 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 Hach 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 the State of Colorado, U.S.A. if Buyer has minimum contacts with Colorado and the U.S., (ii) elsewhere in the U.S. if Buyer has minimum contacts with the U.S. but not Colorado, or (iii) in a neutral location if Buyer does not have minimum contacts with the United States.
Conditions of Sale constitute the entire agreement between the parties and supersede any prior agreements or representations, whether oral or written. Upon thirty (30) days prior written notice, Hach may, in its sole discretion, elect to terminate any order for the sale of Products and provide a pro-rated refund for any pre-payment of undelivered Products. No change to or modification of these Terms & Conditions shall be binding upon Hach unless in a written instrument specifically referencing that it is amending these Terms & Conditions of Sale and signed by an authorized representative of Hach. Hach rejects any additional or inconsistent Terms & Conditions of Sale offered by Buyer at any time, whether or not such terms or conditions materially alter the Terms & Conditions herein and irrespective of Hach’s acceptance of Buyer’s order for the described goods and services.
If checked, the following Appendices are attached hereto and incorporated by reference into these Terms & Conditions of Sale:
CLAROS SOFTWARE AS A SERVICE SUBSCRIPTION AGREEMENT
If Buyer has ordered Real Time Control Services (RTC Services), the following particular Terms and Conditions for RTC Services shall apply in addition to the Terms and Conditions for Sale of Hach Products. The terms and definitions of the Terms and Conditions for Sale of Hach Products shall apply. In case of any contradictions or inconsistencies, these Particular Terms and Conditions for RTC Services shall prevail.
IFor RTC Services, Hach will remotely monitor Buyer's sensor equipment and RTC modules and review certain sensor and RTC data to provide Buyer with guidance on maintenance of the sensor equipment and RTC modules.
Hach remote Services include: plant and RTC modules monitored remotely with active feedback on warnings and errors; quick support on Hach sensor equipment for technical defects or issues with remote troubleshooting from dedicated Hach Technical Support experts; access to on-going Hach Technical support for RTC solutions; preventive maintenance reminders; review and recommendations on likely adjustments of the RTC settings; software updates (when necessary); back-up of the system and Sensor Data storage.
Remote connectivity is achieved via TeamViewer© or via CLAROS.
If Buyer has ordered CLAROS Services, the particular terms and conditions for CLAROS Services ( https://www.hach.com/claros/terms) will apply (“CLAROS Terms”) and are incorporated herein by reference and made part of the terms and conditions.
Buyer agrees to permit Hach to connect to and to access the Buyer RTC system remotely to be able to deliver these Services. To the extent possible, if applicable, Hach shall notify Buyer in advance of any remote connection to the RTC system.
Buyer Responsibilities
7.1 Analytical Instrumentation: Selection of the appropriate measurement technology, correct installation and appropriate operation and maintenance of the analytical instrumentation is critical to obtaining accurate measurement data. These tasks are solely the responsibility of Buyer.
7.2 Connectivity to Internet: Remote access to and interaction with the RTC system requires the RTC modules to connect with the Hach Service department through the Internet. Connectivity to the internet is solely the responsibility of Buyer.
Under consideration of any limitation of liability set out in the Terms and conditions for Sale of Hach Products, with regard to the RTC Services, Hach will in particular not assume any liability for any damages, claims, penalties or expenses resulting from or connection with (1) any failure in or for operation by Buyer of the facility, equipment or plant, (2) any operational results, (Sensor) data, values, indicators of the facility, equipment or plant of the Buyer, (3) any faulty or incomplete integration concept (e.g. missing implementation of fallback levels in PLC programs processing RTC setpoints) of the RTC system into the Buyer’s plant or equipment, (4) any unauthorized access of third parties regarding any Sensor Data, values, indicators or operation of the facility, equipment or plant of the Buyer.
If Buyer has subscribed to Hach's Pick and Ship Subscription Ordering Program, the following Special Terms and Conditions for Pick and Ship (“Terms for Pick and Ship”) shall apply in addition to the General Terms and Conditions of Sale for Hach Company Products and Services (“General Terms and Conditions”). The terms and definitions of the General Terms and Conditions shall apply. In the event of any inconsistency or contradictions between the General Terms and Conditions or these Terms for Pick and Ship, these Terms for Pick and Ship shall prevail.
Each order placed under Pick and Ship constitutes an offer by Buyer to purchase a Pick and Ship subscription product. If Buyer has subscribed for Pick and Ship products, products will be automatically delivered to Buyer at the delivery frequency Buyer selected at the time Buyer subscribed, without any further action on Buyer's part.
The prices, taxes, availability and (shipping) charges of the Pick and Ship subscriptions and included Products may change as Buyer receives deliveries over time. Each Pick and Ship subscription order is subject to the applicable subscription and product details in the Hach.com online store.
Prior to the shipment of each Pick and Ship subscription order, Buyer will receive a reminder via email specifying all details of the order and instructions on how to cancel or modify the order ("Order Reminder Email"). The prices listed in the online store, the Order Reminder email, the Order Confirmation email (email confirming the respective automatic order placement) and the Sales Order Acknowledgement email (email confirming receipt of respective automatic order placement) represent an estimate for the Products based on the current price lists at the time of order. At the time of actual shipment Buyer will receive a shipment confirmation email specifying all details of the order.
The purchase contract for each Pick and Ship subscription product is concluded when the product is shipped to Buyer. Buyer's Pick and Ship subscription will continue and automatically create a new order according to Buyer's chosen delivery schedule, until Buyer cancels. Pick and Ship subscriptions are limited to products showing the Pick and Ship subscription option in the Hach.com online store. Subscriptions are valid while supplies last.
The total cost charged to Buyer´s payment method for each Pick and Ship subscription order will be the cost of the product determined on the day of actual shipment along with shipping and transportation charges according to the Hach Shipping and Transportation Policy. Additionally, Hach is entitled to impose a temporary surcharge if the supply chain costs (e.g., material, labor and freight costs) significantly increased since entering into the Pick and Ship subscription. The cost of each delivery of a Pick and Ship product will be billed through the payment method used to create Buyer's subscription, or as otherwise directed by Buyer.
Buyer's subscription will remain in effect until it is cancelled. Buyer can cancel its Pick and Ship subscriptions at any time through the subscription items page in Buyer's Account on www.hach.com. The cancellation or change does not affect Pick and Ship subscription orders that have already been shipped to Buyer. Hach, at its sole discretion may terminate Buyer's subscriptions at any time without notice and without reasons. If Hach cancels Pick and Ship subscriptions, Buyer will only be charged for orders which have already been shipped to Buyer.
Hach may change these Terms for Pick and Ship from time to time in its sole discretion. All changes will apply to current subscriptions and future orders. In case of material changes Hach will provide 30-day prior notice to Buyer. Buyer's continued participation in the Pick and Ship Subscription Ordering Program after expiry of the notice period shall constitute a deemed acceptance of such changes. If Buyer does not agree to any changes to these Terms for Pick and Ship, Buyer must cancel its Pick and Ship subscriptions as set forth in No. 3 above. If any change to these Terms for Pick and Ship is found invalid, void, or for any reason unenforceable, that change is severable and does not affect the validity and enforceability of any remaining changes or conditions.
Customer shall pay all Fees specified in US dollars. Except as provided below, Fees are non-refundable.
HACH COMPANY shall invoice Customer monthly in advance and Customer shall pay HACH COMPANY fees for the Services in the amount and on the following terms, free and clear of, and without any reduction for, any and all taxes (the “Fees”). Fees are due thirty (30) days from the invoice date. Delinquent payments shall bear interest at the rate of one and one half percent (1.5%) per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Payments may be applied first against interest and collection costs and then Fees. Customer agrees to pay all late charges imposed and all reasonable expenses (including attorneys’ fees) incurred by HACH COMPANY in collecting unpaid or delinquent amounts.
If Customer’s account is thirty (30) or more days overdue, in additional to any of its other rights and remedies, HACH COMPANY may suspend Customer’s access to the Data Delivery Services without liability to Customer. Customer shall pay any taxes, including sales, use, personal property, value-added, excise, customs fees, import duties or stamp duties or other taxes and duties imposed by governmental agencies of whatever kind with respect to the Services, including penalties and interest, but specifically excluding taxes based upon HACH COMPANY’s net income. When HACH COMPANY has the legal obligation to pay or collect such taxes, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides HACH COMPANY original or certified copies of all tax payments or other evidence of payment of taxes by Customer.
This Agreement is effective on the date set forth in the Proposal, and shall continue for the term set forth therein. After the initial term, this Agreement shall continue on a month to month basis at HACH COMPANY’s then current applicable rates unless terminated by either party upon thirty (30) days written notice to the other party given prior to the expiration of the applicable term. Either party may terminate this Agreement in the event the Data Delivery Services are not accessible by Customer at least ninety-five (95%) percent of the time during three (3) consecutive months of any term. Should HACH COMPANY contract with third parties for the provision of Services to Customer, the term shall continue for the length of any such third party contracts.
Except as otherwise provided for herein, either party may terminate this Agreement upon the material breach of the other party, if such breach remains uncured for thirty (30) days following written notice to the breaching party. The foregoing notwithstanding, HACH COMPANY may terminate immediately upon Customer’s breach of Sections 2, 3, 4, 6, 7, or 8.
Upon any termination of this Agreement, all rights to access the Data Delivery Services and Customer’s Web Page terminate. Customer shall provide to HACH COMPANY secure, safe and free access to the Monitoring Site for the purpose of retrieving the Flowmeter Equipment for a period of ninety (90) days from the date of notice of termination. HACH COMPANY shall have no obligation to refund to Customer any Fees and any unpaid Fees shall immediately be due and payable upon termination. The foregoing notwithstanding, should either party terminate due to the unavailability of the Data Delivery Services as provided in this Section 5 above, Customer shall not be obligated to pay Fees for the pertinent months and if already paid, HACH COMPANY agrees to refund to Customer Fees paid during the period of unavailability. The foregoing shall be HACH COMPANY’s sole obligation and Customer’s exclusive remedy. HACH COMPANY may destroy all backup and stored Customer Data within thirty (30) days of the expiration or termination of this Agreement. Termination of this Agreement for cause shall not limit HACH COMPANY from pursuing other remedies available to it, including equitable relief, nor shall such termination relieve Customer of its payment obligations hereunder.
Customer Data is confidential and proprietary information to Customer. HACH COMPANY acknowledges that it will have access to Customer Data in the course of providing the Services and agrees to hold Customer Data in confidence and not to release or give access to Customer Data to any third party unless such individual or entity has a need for such knowledge to perform Services in the furtherance of this Agreement. HACH COMPANY further agrees not to make use of Customer Data for its own benefit or for the benefit of any third parties, other than for the performance of this Agreement. Notwithstanding the foregoing, HACH COMPANY may retain Customer Data for the purpose of analysis and research and to aggregate it with that of other HACH COMPANY customers for statistical analysis, trends or other industry-related purposes so long as such use does not result in the identification of Customer.
The Flowmeter Equipment and all components thereof, such as the Flo-Dar appliance, antennae, related software and documentation, Data Delivery Services technology and architecture, terms of this Agreement, Service Order Form including pricing, and any information that comes into Customer’s possession of knowledge in connection with HACH COMPANY’s processes, methods, equipment, architecture, formulae, financial information, forecasts or marketing and sales information (collectively “HACH COMPANY Confidential Information”) consists of confidential and proprietary information of HACH COMPANY, its affiliates, licensors, or third parties. Customer agrees to hold HACH COMPANY Confidential Information in confidence and agrees not to release such information to any individual whether employee, subcontractor or subcontractor employee, customer unless such individual has a need for such knowledge either during the term or after the termination of this Agreement. Customer further agrees not to make use of HACH COMPANY Confidential Information for its own benefit or for the benefit of any third parties other than as specifically required in the performance of this Agreement.
The above limits on disclosure do not include information which (A) is or becomes known publicly through no fault of a party; (B) is learned by a party from a third party entitled to disclose it; (C) is already known to a party before receipt from the disclosure; or (D) is independently developed by a party.
In the event of any breach of these confidentiality obligations, each party acknowledges that the non-breaching party would be irreparably injured and shall be entitled to seek equitable relief, including injunctive relief and specific performance, in any court of competent jurisdiction. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement.
Upon termination of this Agreement, such Confidential Information shall, upon request of the party who disclosed the information, be returned thereto. The party receiving and returning such Confidential Information may make one copy for its own files before returning the information to the disclosing party. The terms of this Section shall survive the termination of this Agreement.
HACH COMPANY warrants that the Services will be performed in a professional and workmanlike manner and will be of a quality conforming to general standards of care.
CUSTOMER’S EXCLUSIVE REMEDY AND HACH COMPANY’S ENTIRE LIABILITY FOR ANY BREACH OF THIS WARRANTY SHALL BE RE-PERFORMANCE OF THE SPECIFIC NON-CONFORMING SERVICE.
HACH COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Customer for itself and on behalf of its Administrator and each Authorized Customer User represents and warrants to HACH COMPANY that:
Customer shall and hereby does defend, indemnify and hold HACH COMPANY and its suppliers and licensors harmless from and against any and all claims, losses, damages, liabilities, obligations, judgments, causes of action, costs, charges and expenses (including without limitation, reasonable attorneys’ and consultants’ fees and such fees and penalties as any third party licensors may impose) arising out of or in connection with: (i) any breach of this Agreement by Customer and/or its Authorized Customer Users; (ii) any civil and/or criminal suit alleging that HACH COMPANY had no right or authority to access the Monitoring Sites; (iii) any Customer and/or Authorized User negligence, recklessness or willful misconduct; or (iv) any violation of, or non-compliance with laws. Customer’s obligations under this Section do not apply to the extent that claims are directly caused by the gross negligence of HACH COMPANY.
IN NO EVENT SHALL HACH COMPANY, ITS SUPPLIERS, LICENSORS OR SUBCONTRACTORS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, CORRUPT DATA OR USE, LOSS OF CUSTOMER DATA, CORRUPT OR UNAVAILABLE CUSTOMER DATA, LOSS OF USE OF CUSTOMER DATA, LOST OPPORTUNITY, TRANSACTION LOSSES, OPPORTUNITY COSTS, INTERRUPTION OF BUSINESS OR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES OR FOR INTERRUPTED COMMUNICATIONS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICES, THE FLOWMETER EQUIPMENT, DATA DELIVERY SERVICES OR CUSTOMER’S WEB PAGE AND INCURRED BY CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, WARRANTY, TORT OR STRICT LIABILITY, EVEN IF HACH COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.THE FOREGOING NOTWITHSTANDING, IN NO EVENT SHALL HACH COMPANY’S LIABILITY FOR DAMAGES HEREUNDER TO CUSTOMER EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER PURSUANT TO THE APPLICABLE SERVICE ORDER UNDER THIS AGREEMENT FOR THE SIX (6) MONTH PERIOD PRIOR TO THE CLAIM GIVING RISE TO THE LIABILITY. CUSTOMER HEREBY INDEMNIFIES, HOLDS HARMLESS AND AGREES TO DEFEND HACH COMPANY AGAINST ANY THIRD PARTY CLAIM.
THE FOREGOING LIMITATION OF LIABILITY SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE FOREGOING DISCLAIMERS AND LIMITATIONS SHALL SURVIVE TERMINATION OR EXPIRATION OF THIS AGREEMENT.