Thank you for your interest in purchasing our products. We value your business, and our goal is to make your purchasing experience as smooth as possible. Unless otherwise expressly agreed in writing, your purchase of products is subject to the following terms and conditions:
- Agreement Terms
1.1 General Terms. These terms and conditions (“Terms”), our quotation (if any) and any document between you and the authorized TopAir distributor comprise the agreement (“Agreement”) between you and TopAir Systems, Inc. (“TopAir”, “We“ or “Us”). Unless your order is subject to a valid, written, executed agreement between you and TopAir Systems, Inc. in which case such agreement applies, or if you receive ordering or sales documents that reference these Terms, these Terms and Conditions are the complete and exclusive contract between us with respect to your purchase of the products. As part of the sales process, TopAir’s duly authorized distributor will provide you with these Terms and Conditions or refer you to these Terms and Conditions on our website.
1.2 Terms Conflict. All sales made or negotiated by TopAir or an authorized TopAir distributor shall be subject to the terms and conditions set forth herein, which may be added to, modified, superseded or otherwise altered only by written instrument signed by authorized executives of TopAir. Failure of TopAir to object to any provisions that may be contained in any order or other document of Buyer shall not be construed as a waiver of these Terms and Conditions or as an acceptance of any such provision.
- Price
2.1 Determining Price. We may change our prices at any time without notice. Prices that We, or our authorized distributor quote you are valid for 30 days, unless we state otherwise in writing. If no price has been specified or quoted to you, the price will be the product price on TopAir’s published price list. Our prices do not include installation services.
2.2 Taxes and Fees. Our product prices do not include any sales taxes or other government fees that may apply to your order. If they apply, it will be your responsibility to pay them. If We or the distributor pays them, they will add them to your invoice. If you claim any exemption, you must provide a valid, signed certificate or letter of exemption for each respective jurisdiction.
2.3 Delivery Fees; Freight Policy. You are also responsible for standard delivery and handling charges, if applicable, and our product prices do not include such charges unless expressly stated. If We pay such charges, We will also add these to your invoice.
- Cancellation and Changes
Once you have placed your order, you cannot cancel or change it without our written consent.
- Payment
Payment Terms. Payment terms are as agreed between you and a TopAir authorized Distributor, If you purchase products directly from TopAir, we will provide you with payment terms.
- Delivery; Risk of Loss
Unless otherwise specifically agreed, delivery terms are Ex Works TopAir’s warehouse (Incoterms 2010). Our authorized distributor will assume all risk of loss or damage upon delivery to carrier, even if other delivery terms are arranged by TopAir for your benefit. Shipping dates are approximate and are based upon prompt receipt of all necessary information. We shall not be liable for delays in delivery or failure to manufacture or deliver due to causes beyond our control, such as but not limited to acts of God, acts of purchaser, delays in transportation, etc. in which case, the date of delivery shall be extended for a period equal to time lost by reason of the delay.
- Title
Excluding software incorporated within or forming part of a product, which We or our licensors continue to own, title to products will pass to you when We receive full payment for the products.
- Returns
TopAir’s return policy is strictly limited to products purchased directly from TopAir’s inventory. If this applies to your purchase, please contact Customer Service.
- Warranties
8.1 Limited Warranties for General Labware and Furniture. We warrant that each item of general labware will meet its specifications in our published catalogs.
8.2 Limited Warranty for Spare Parts. We also warrant that spare parts you purchase from us and that we install or are installed by a company we have certified as an authorized installer, will be free of defects in materials and workmanship for three (3) months from the date we deliver them, or, if longer, the original warranty period of the instrument in which the part is installed. We do not provide warranties for parts that you do not purchase from Us or that We do not install. These parts are provided “as is.”
8.3 Exclusions. Our warranties do not apply to (a) if product was not installed by a an authorized distributor and/or was not properly maintained and/or operated by you and/or was repaired by a person other than an authorized distributor and/or has been subjected to misuse, neglect, negligent handling or operation, damage or mishandling while in transit, damaged by the application of force or any act of tampering or vandalism, or has been repaired or altered in any way other than by an authorized distributor and/or if used with other than genuine TopAir parts, accessories and/or components; (b) Any wear and tear of parts that require routine or regular maintenance and/or replacement to ensure the proper functioning of the Product: (c) damages or defects caused by or resulting from shipping or unauthorized service, repair or alteration to any part performed by anyone other than an authorized distributor or service person authorized by an authorized distributor; or (e) Purchases that are not verified by proper proof of purchase. ADDITIONALLY, ANY INSTALLATION, MAINTENANCE, REPAIR, SERVICE, RELOCATION OR ALTERATION TO OR OF, OR OTHER TAMPERING WITH, THE PRODUCTS PERFORMED BY ANY PERSON OR ENTITY OTHER THAN US WITHOUT OUR PRIOR WRITTEN APPROVAL, OR ANY USE OF REPLACEMENT PARTS WE HAVE NOT SUPPLIED, WILL IMMEDIATELY VOID AND CANCEL ALL WARRANTIES WITH RESPECT TO THE AFFECTED PRODUCTS.
8.4 Ductless Fume Hood. The TopAir Ductless Fume Hood is a portable hood that operates where the air, saturated with chemicals, passes through a filter system that includes a filter and a blower. The air is then returned to the laboratory space and is not vented outside the building. Therefore, it is important to point out that the filtration system in a portable hood is not absolute, and that some materials are not filtered and return to the laboratory. Since it is possible that some of the chemicals will not be filtered and will return to the room, it is your responsibility as the customer to check and confirm that this type of hood meets your needs and is safe for use in your laboratory environment.
We also offer a variety of filters suitable for different types of chemical containers. It is your responsibility to order the proper filter adapted to the types of chemical containers with which they work. Our distributors and representatives are able to provide guidance on the appropriate filter, but ultimately it is your decision and responsibility. We will have no liability with respect to your choice of filters and use of an inappropriate filter will void any warranty provided by Us.
In addition, it is your responsibility in consultation with your safety advisors, to know that the product is suitable and meets the requirements of the standards in the country in which it operates; that the chemicals used in the product are suitable for the product and do not have a level of toxicity and risk that require emission outside the building; and that the process carried out in the hood is suitable for a portable hood of this type and does not create a risk of fire or exposure to dangerous substances that return to the laboratory after the filtering process.
8.5 If We determine that products for which you requested warranty services are not covered by the warranty, or if We provide repair services or replacement parts that are not covered by this warranty, you will pay or reimburse us for all costs of investigating and responding to such request at our then prevailing time and materials rates.
8.6 Limitations.
(A) OUR WARRANTIES EXTEND ONLY TO YOU, THE ORIGINAL PURCHASER AND YOU CANNOT TRANSFER THEM. OUR OBLIGATION TO REPAIR OR REPLACE A PRODUCT IS YOUR SOLE REMEDY.
(B) EXCEPT AS OTHERWISE STATED, WE DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES (a) OF MERCHANTABILITY; (b) OF FITNESS FOR ANY PARTICULAR PURPOSE; AND/ OR (c) THAT THE PRODUCTS ARE ERROR-FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.
8.7 Remedies. During the applicable warranty period only, for products not meeting our warranty, We agree, in our sole discretion, to repair or replace the non-conforming product on-site and/or provide additional parts as reasonably necessary to comply with our warranty obligations, but you must first promptly notify us in writing when you discover any defect or non-conformance, and include in the notice clear details of your warranty claim and allow our engineers access to the defect product on-site during mutually agreed times. You may
need to decontaminate the product prior to our engineer’s visit. We will ship your repaired or replacement products according to our Delivery terms in Section 5 of these Terms.
- Indemnification
9.1 Our Indemnity.
(A) Our Infringement Indemnity. We will defend and indemnify you against infringement damages finally awarded in any legal action brought by a third party against you alleging infringement of any intellectual property rights owned by third parties arising directly and solely from a product, as manufactured and provided by us to you, but always excluding use and/or combination of such product with other products or components. This infringement indemnity does not apply to (a) claims that arose based on your failure to comply with the Agreement; (b) claims that arose based on your failure to acquire any applicable additional intellectual property rights related to your use of the products (“Additional Rights”); (c) products that We made, assembled or labeled in reliance upon your instructions, specifications, or other directions; (d) your use or resale of products; (e) modifications made by you or any third party; or (f) products originating from third parties.
THIS INDEMNITY IS OUR ONLY LIABILITY TO YOU, YOUR ONLY REMEDY, FOR ANY INFRINGEMENT OR CLAIMED INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS BY OR IN CONNECTION WITH ANY PRODUCT.
(B) Conditions to Our Indemnity. As a condition to our indemnification obligations you must (a) notify us in writing, as soon as you become aware of any claim; (b) not admit any liability or take any other action in connection with the claim that could affect the defense; (c) allow us to solely control the defense or settlement of the claim; (d) give us your reasonable information, co-operation and assistance; and (e) take all reasonable steps to mitigate losses incurred, including allowing us to exercise any and all of options set out in Section 11.3 of these Terms.
9.2 Your Indemnity of Us. If a third party makes a claim against us for infringement of its intellectual property rights based on (a) our manufacture or sale of a product or custom product We make under your instructions, specifications, or other directions, or using materials that you provide to us (b) your failure to comply with the Agreement, (c) your failure to acquire any applicable Additional Rights, or (d) your modification, use or resale of a product, then you will indemnify and hold us harmless from and against any and all claims, losses, damages, liabilities and expenses (including reasonable attorneys’ fees and other costs of defending and/or settling any action) that we may have to pay as a result of the claim.
- Software
10.1 Definitions. With respect to any software products incorporated in or forming a part of our products, you understand and agree that We are licensing such software products and not selling them, and that the words “purchase”, “sell” or similar or derivative words are understood and agreed to mean “license”, and that the word “you” is understood and agreed to mean “licensee”. We, or our licensor, as applicable, retain all rights and interest in software products We provide to you.
10.2 License. We hereby grant to you a royalty-free, non-exclusive, nontransferable license, without power to sublicense, to use software We provide to you under this Agreement solely for your own internal business purposes on the hardware products We provide you hereunder, and to use the related documentation solely for your own internal business purposes. This license will automatically terminate when your lawful possession of the associated hardware products provided hereunder ceases, unless earlier terminated as provided in this Agreement.
10.3 Restrictions. You agree to hold in confidence and not to sell, transfer, license, loan or otherwise make available in any form to third parties the software products and related documentation provided hereunder. You may not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement the software products provided hereunder without our prior written consent. We will be entitled to terminate this license if you fail to comply with any term or condition herein.
- Intellectual Property
11.1 Use Limitations. As between you and Us, We exclusively own all intellectual property rights relating to our products and services. Our sale of products to you grants you only a limited, nontransferable right under our intellectual property to use the quantity of products purchased from us for your internal purposes. No right to transfer, reverse engineer, decompile, disassemble, distribute, or resell our products or any of their components is conveyed expressly, by implication, or by estoppel. Unless expressly permitted by us in writing, you will not modify, change, remove, cover or otherwise obscure any of our brands, trade or service marks on the products. Nothing in the Agreement limits our ability to enforce our intellectual property rights.
11.2 Intellectual Property Ownership. Unless otherwise specified in applicable Supplementary Terms, We exclusively own all intellectual property rights in any inventions (patentable or otherwise), discoveries, improvements, data, know-how, or other results that are conceived, developed, discovered, reduced to practice, or generated by or for us, or jointly by you and us, in relation to processes, designs and methods utilized in manufacture of a custom product. You agree to transfer and assign to us all your right, title, and interest in and to
any joint intellectual property. At our request and at our expense, you will help us secure and record our rights in such intellectual property.
11.3 Intellectual Property Infringement. We want to avoid claims of intellectual property infringement. If We believe a product We have sold to you may be subject to a claim for intellectual property infringement, you must allow us (at our option) to either (a) secure for you the right to continue using the product; (b) substitute the product with another suitable product with similar functionality; or (c) tell you to return the product to us and We will refund to you the price you paid.
- Limitations and Exclusions of Liability
(A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE WILL NOT BE LIABLE UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, MULTIPLE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ALL COSTS OF COVER, LOST PROFITS, LOST DATA, LOSS OF BUSINESS, LOSS OF GOODWILL OR LOSS OF REVENUE) THAT YOU MIGHT INCUR UNDER THE AGREEMENT, OR THAT MAY ARISE FROM OR IN CONNECTION WITH OUR PRODUCTS OR SERVICES, EVEN IF WE HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
(B) IN ADDITION, OUR MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, OR ANY PRODUCT UNIT OR SERVICE, IS LIMITED TO THE AMOUNT YOU PAID TO US FOR THE SPECIFIC PRODUCT PURCHASED THAT GAVE RISE TO THE LIABILITY.
(C) THE PROVISIONS ABOVE IN THIS SECTION 14 DO NOT LIMIT OUR LIABILITY THAT CANNOT BE LIMITED BY LAW, INCLUDING BUT NOT LIMITED TO LIABILITY FOR FRAUD AND DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE.
- Miscellaneous
13.1 No Assignment. You may not delegate any duties nor assign any rights or claims hereunder without our prior written consent, and any such attempted delegation or assignment will be void.
13.2 Governing Law. The Agreement and performance under it will be governed by the laws of the C o m m o n w e a l t h of Massachusetts. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Boston, Massachusetts before one arbitrator with expertise in laboratory equipment agreements and commercial contracts. The arbitration shall be administered by JAMS pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Notwithstanding the foregoing, either party may seek injunctive relief or specific performance in any court that has jurisdiction. Any action arising under the Agreement must be brought within one year from the date that the cause of action arose. The U.N. Convention on Contracts for the International Sale of Goods is hereby expressly excluded.
13.3 Regulatory Restrictions. In addition to the restrictions set out in Section 11 of these Terms: (a) you must use our products in accordance with our instructions; (b) you are solely responsible for making sure that the way you use our products complies with applicable laws, regulations and governmental policies; (c) you must obtain all necessary approvals and permissions you may need; and (d) it is solely your responsibility to make sure the products are suitable for your particular use.
13.4 Uncontrollable Circumstances. We will not be responsible or liable for failing to perform our obligations under the Agreement to the extent caused by circumstances beyond our reasonable control. In certain situations, We may use our reasonable judgment and apportion products then available for delivery fairly among our customers.
13.5 No Waiver; Invalidity. Our failure to exercise any rights under the Agreement is not a waiver of our rights to damages for your breach of contract and is not a waiver of any subsequent breach. If any provision or part of the Agreement is found by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions of the Agreement. No person other than you or us will have any rights under the Agreement.
13.6 Headings. Headings are for convenience only and shall not be used in the interpretation of these Terms.
13.7 Confidentiality. You agree to keep confidential any non-public technical information, commercial information (including prices, without limitation) or instructions received from us as a result of discussions, negotiations and other communications between us in relation to our products or services.
13.8 Notices. Any notice or communication required or permitted under these Terms must be in writing and will be deemed received 3 business days after being sent by certified mail, postage prepaid, to a party’s specified address or by email to [email protected] so long as recipient acknowledges receipt of such communication.
13.9 Requirement to Reduce to Writing. No waiver, consent, modification, amendment or changes to the terms of the Agreement will be binding unless in writing and signed by both of us. Our failure to object to terms contained in any subsequent communication from you will not be a waiver or modification of our Agreement.
13.10 Severability. Any provision of the Agreement which is prohibited, or which is held to be void or unenforceable shall be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.