1. Standard Terms. The following set forth the terms and conditions on which Great Lakes Imaging (“GLI”) sells products and services (the “Terms”). These Terms may be supplemented by GLI supplemental terms and conditions, as appropriate, which deal with GLI services and digital products. These supplemental terms and conditions, when appended hereto, shall be incorporated into and be a part of these Terms and Conditions as if the same document. All GLI quotations are subject to these Terms. Any additional terms or conditions that may be agreed to on the face of a quotation, proposal or purchase agreement, provided that such document has been signed or initialed by a duly authorized officer of GLI, shall also be subject to these Terms. These Terms and any other documents or supplemental terms and conditions shall be collectively referred to as the “Agreement.” In the case of any conflict between these Terms and any other document properly constituting part of the Agreement, the terms on such other docur’s obligation to make payments of fees accrued or incurred prior to the date of termination shall survive any termination of the Agreement. rent rates for parts, labor and transportation. additional or different terms, whether in writing or otherwise, in Customer’s purchase order or in any other communication from Customer to GLI. These Terms are for the benefit of GLI and Customer and not for the benefit of any third party. Notwithstanding any contrary provision in Customer’s purchase order, no action by GLI (such as delivery of any product), the rendering of any services or the commencement of work on specialty products for Customer will be deemed an acceptance by GLI of any purchase order from Customer with terms different from or additional to those contained herein.
2. Prices. GLI’s prices, quotations, and proposals are subject to change without notice. Unless otherwise stated in writing by GLI, all prices quoted are exclusive of transportation charges, taxes, and insurance. Typographical errors are subject to correction by GLI. Prices quoted are for the products specified only. UNLESS OTHERWISE SPECIFIED IN WRITING, ALL QUOTATIONS ARE FIRM FOR A PERIOD OF THIRTY (30) DAYS, EXPIRE THIRTY (30) DAYS AFTER THE DATE THEREOF, AND CONSTITUTE OFFERS. A sales quotation for GLI products and all verbal and written communication between GLI and Customer is confidential and may not be reproduced, disclosed or transmitted in any manner without first obtaining GLI’s express written permission. Budgetary quotations and estimates are provided for preliminary information only and shall not constitute offers, or impose any responsibility or liability upon GLI of any kind or nature whatsoever.
3.a). Invoices. GLI shall render an invoice to Customer: (1) for the Purchase Price set forth in the quotation or proposal upon shipment of the Products to Customer. Typographical errors shall be subject to correction by GLI.
b). Payment Terms. Unless credit terms are agreed upon in writing by GLI, payment for Products is due upon delivery. Payments by approved credit customers shall be due in full within thirty (30) days from the date of the relevant invoice. Past due balances shall be subject to a 1.5% per month (18% per year) service charge, or the highest rate permitted by applicable law, if less. GLI reserves the right to require an initial deposit from an approved credit customer. If Customer fails to pay any GLI invoice when due, or otherwise breaches these Terms, GLI shall be entitled to the reasonable costs (including attorney’s fees) incurred in collection or otherwise enforcing the Agreement.
c). Taxes. All payments shall be exclusive of all taxes and duties, including without limitation sales, use, value added and other taxes, duties or levies on transactions made under the Agreement. Customer shall pay GLI an amount equal to any tax or duty that GLI is required to collect or pay upon the sale or delivery of the Products to Customer, exclusive of GLI’s income taxes. If a certificate of exemption or similar document is required to exempt Customer from sales or use tax liability, Customer shall obtain and furnish to GLI evidence of such exemption with Customer’s order in a form reasonably satisfactory to GLI.
4. Order Submissions and Acceptance. All orders for Products by Customer shall be made using a purchase order, purchase letter or other similar document (each, an “Order Document”). No Order Document shall be binding upon GLI until it has been accepted by GLI in writing, and GLI shall not have any liability to Customer with respect to any Order Document that is not accepted by GLI. GLI shall notify Customer of any rejection of an Order Document and of the assigned delivery date for accepted orders within ten (10) business days of GLI’s receipt of the Order Document. GLI’s acceptance of any order document shall not constitute acceptance of any terms and conditions thereon, which are expressly rejected.
5. Delivery. All products shall be delivered FOB GLI’s shipping point designated by GLI at the time the order is accepted by GLI. If Customer specifies the carrier to be used, shipment may be made on a collect basis by GLI. Products shall be scheduled for shipment in accordance with GLI’s applicable shipping sequence. GLI shall not be liable for any damages or penalties arising from any delays in delivery or for any failure to give notice of any delivery delay.
6. Risk of Loss. Unless otherwise agreed upon by GLI in writing, all transportation shall be at Customer’s sole cost and expense. Risk of loss and damage shall pass to Customer upon delivery of the Products to the transportation provider at the FOB point. Unless expressly agreed to in writing by GLI, the FOB point shall be the GLI loading dock from which the Products are shipped. “Delivery” shall occur when the Products are received by the transportation provider at the FOB point. Neither confiscation nor destruction of, nor damage to any Products shall release, reduce or in any way affect Customer’s liability to GLI under the Agreement.
7. Performance. GLI shall not be liable in any way for delays due to acceptance of prior orders, technical difficulties, acts of God, labor disputes, failures of materials or facilities, acts of war or terrorism, curtailment of or failure to obtain sufficient electrical or other energy supplies, compliance with any laws, regulations or orders, whether valid or invalid, from any governmental body or instrumentality, or any other circumstance or causes beyond GLI’s reasonable control.
8. Acceptance. The furnishing by GLI of any Products to Customer shall constitute acceptance of those Products UNLESS Customer delivers written notice of a defect or nonconformity to GLI within thirty (30) days of the date on which such Products are delivered to Customer. Notwithstanding the foregoing, any use of any Product by Customer, agents or contractors, for any business purpose, after it has been delivered to Customer, shall constitute acceptance of that Product by Customer.
a). GLI warrants to Customer that, during the applicable Warranty Period each standard Product manufactured by GLI under the Agreement shall be free of defects in materials and workmanship.
b). Unless otherwise specified by GLI elsewhere in the Agreement or otherwise reduced to writing and expressly approved by an authorized officer of GLI in writing, the Warranty Period for standard Products shall be one (1) year from the installation completion date.
c). Customer’s EXCLUSIVE REMEDY, and GLI’s SOLE OBLIGATION under the foregoing warranty shall be, with respect to Products, to repair or, at GLI’s option, replace such Products, or any defective portion thereof. Notwithstanding the foregoing, GLI may, as an alternative, elect to refund an equitable portion of the purchase price of the affected Product. Items expendable in normal use (“Consumables”) are not covered by the foregoing warranty. All warranty replacement or repair of parts shall be limited to Product malfunctions, which, in the reasonable opinion of GLI, are due or traceable to defects in original material or workmanship. All replaced parts shall become the property of GLI. All obligations of GLI under this warranty shall cease in the event of abuse, misuse, accident, alteration, or neglect of the Product. In-warranty repaired or replacement parts are warranted only for the remaining un-expired portion of the original warranty period applicable to the repaired or replaced parts orr’s obligation to make payments of fees accrued or incurred prior to the date of termination shall survive any termination of the Agreement. rent rates for parts, labor and transportation.
d). Customer must use reasonable care to avoid hazards. GLI expressly disclaims any responsibility for loss or damage caused by the use of any Products other than in accordance with proper operation procedures. No warranty is provided by GLI for any products sold or provided to Customer by GLI which are not manufactured or produced by GLI, and any manufacturer’s warranty for such products, if any, shall be assigned to the Customer without recourse to GLI.
e). GLI DOES NOT WARRANT THAT ANY PRODUCT OR THE FUNCTIONS PERFORMED BY ANY PRODUCT WILL MEET THE REQUIREMENTS OF CUSTOMER OR OF ANY OF ITS CUSTOMERS, OR THAT THE OPERATION OF ANY SUCH PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE.
f). THE WARRANTIES SET FORTH IN THE AGREEMENT ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, USE OR APPLICATION, WHICH ARE EXPRESSLY DISCLAIMED, AND ALL OTHER OBLIGATIONS OR LIABILITIES ON THE PART OF GLI, UNLESS SUCH OTHER WARRANTIES, OBLIGATIONS OR LIABILITIES ARE EXPRESSLY AGREED TO IN WRITING BY AN AUTHORIZED OFFICER OF GLI. STATEMENTS MADE BY ANY PERSON, INCLUDING REPRESENTATIVES OF GLI, WHICH ARE INCONSISTENT OR IN CONFLICT WITH THE TERMS OF THE AGREEMENT SHALL NOT BE BINDING UPON GLI UNLESS REDUCED TO WRITING AND SIGNED BY AN AUTHORIZED OFFICER OF GLI.
10. Warranty-Expendable Products (“Consumables”). GLI warrants that, at the time of delivery to Customer, Consumables manufactured and sold by GLI to Customer under the Agreement will be free of defects in material and workmanship and will conform to GLI’s specifications therefor or other specifications expressly agreed to in writing by GLI. GLI SHALL HAVE NO OTHER OR FURTHER RESPONSIBILITY THEREFOR WHATSOEVER, AND GLI DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT THERETO.
11. Damages and Liability. GLI’S AGGREGATE LIABILITY TO CUSTOMER IN DAMAGES OR OTHERWISE SHALL NOT EXCEED THE TOTAL OF ALL PAYMENTS, IF ANY, RECEIVED BY GLI FOR THE PRODUCT(S) FURNISHED OR TO BE FURNISHED, AS THE CASE MAY BE, WHICH IS THE SUBJECT OF THE CLAIM OR DISPUTE. GLI SHALL NOT BE LIABLE TO CUSTOMER OR ITS AFFILIATES FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL COSTS, LIABILITIES OR DAMAGES, WHETHER FORSEEABLE OR NOT, ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY OBLIGATIONS HEREUNDER OR OTHERWISE RELATED HERETO, INCLUDING (WITHOUT LIMITATION) LOST PROFITS OR LOST DATA RESULTING FROM DELAYS, LACK OF FUNCTIONALITY, NON-DELIVERIES, MIS-DELIVERIES, SERVICE INTERRUPTIONS OR DAMAGES TO CUSTOMER’S BUSINESS. IN ADDITION. GLI SHALL NOT BE RESPONSIBLE SHOULD ANY HARDWARE SUPPLIED BY CUSTOMER OR PREPARED FOR THE INSTALLATION OF SOFTWARE NOT MEET ACCEPTABLE STANDARDS OF PERFORMANCE. No action, regardless of form, arising out ofment shall control. These Terms, together with the sales quotation, constitute GLI’s offer to sell products and services to Customer.
12. Confidentiality. Each of Customer and GLI agree not to disclose to any third party and proprietary information disclosed to it by the other party without the prior written consent of the disclosing party. Customer shall limit access to the proprietary information of GLI to those persons having a need to know such information in order to exercise Customer’s rights under the Agreement. A party’s proprietary information shall not include information that (1) is or becomes publicly available through no act or omission of the other party; (2) was in the other party’s lawful possession prior to the disclosure; (3) is lawfully and rightfully disclosed to the other party by a third party without restriction on use or disclosure; or (4) is independently developed by the other party.
13. Intellectual Property Rights. Customer acknowledges and agrees that all rights in and to the Product(s), and all patents, copyrights, trade secrets, trademarks, trade names, and any other forms of intellectual property associated therewith, will be and remain the sole and exclusive property of GLI. Customer will not remove, cover or deface the GLI name or any of GLI’s trademarks included on any of the Product(s), nor will Customer have any right to use the GLI name or any of GLI’s trademarks, or any name or mark confusingly similar thereto, in connection with its use of the Product(s).
14. Term and Termination. The Agreement will be effective as of acceptance. Customer may terminate the Agreement for a material breach of the Agreement by GLI so long as Customer gives GLI thirty (30) days prior written notice specifying the events or circumstances giving rise to the notice. GLI may terminate the Agreement for a material breach of the Agreement by Customer so long as GLI gives Customer thirty (30) days prior written notice specifying the events or circumstances giving rise to the notice. The termination shall become effective after the lapse of such thirty-day period, unless within such thirty-day period the events or circumstances specified in the notice have been remedied by Customer or GLI or a plan for remedying them has been proposed by Customer or GLI and accepted in writing by Customer or GLI. The termination of the Agreement shall not affect Customer’s rights with respect to any Product(s) purchased and paid for by Customer prior to the date of termination. The Customer’s obligation to make payments of fees accrued or incurred prior to the date of termination shall survive any termination of the Agreement.
15. Assignment or Encumbrance of GLI Products/Binding Agreement. Until such time as all payments have been made under the Agreement, Customer shall not assign, transfer, pledge, hypothecate, mortgage, charge, encumber or otherwise dispose of the GLI products or its rights under this Agreement without the prior written consent of GLI. The provisions of this Agreement are binding upon all successors, administrators, trustees and permitted assigns of Customer.
16. Gratuitous Advice. GLI may, from time to time, in response to Customer’s inquiry or otherwise, provide gratuitous advice and/or assistance concerning any Product supplied hereunder. Such advice shall not be construed as a representation of fact and should not be relied upon by Customer.
17. HIPAA. GLI acknowledges that it may be a Business Associate of Customer for HIPAA. GLI’s and Customer’s joint obligations under HIPAA shall, if applicable, be set forth in a separate Business Associate Agreement entered into by both GLI and Customer.
a). Severability. If any part, provision, or clause of the Agreement, or the application thereof to any person or circumstance, is held invalid, void or unenforceable, such holding shall not effect and shall leave valid all other parts, provisions, clauses or applications of the terms and conditions remaining, and to this end the terms and conditions contained herein shall be treated as severable.
b). Notices. Legal notices and communications given by the Customer and GLI to one another in connection with the Agreement shall be given in writing and delivered via return receipt mail or express delivery service to the parties’ respective business addresses or to such other address as the parties’ may substitute by giving notice to one another in accordance with this provision.
c). Amendments. No modification or amendment of the Agreement or waiver of any provision of the Agreement will be valid unless in writing and signed by Customer and GLI and specifically stating that it is a modification or amendment hereto.
d). Governing Law. The Agreement shall be construed and enforced in accordance with the laws of the State of New Jersey without regard to conflicts of law principles.
e). Dispute Resolution and Forum Selection. All disputes or legal proceedings related to the products or services provided by GLI and the Agreement shall be brought in the appropriate State or Federal Courts of New Jersey.
f). Product Changes. GLI reserves the right to amend the Products offered at any time; provided that GLI provides Customer with a minimum of thirty (30) days prior notice if such amendment shall affect any undelivered Product that is the subject of an outstanding invoice.