I. Scope of application
These General Terms and Conditions ("GTC") shall apply for all business relations between us, Elementar Americas, Inc., 119 Comac Street, Ronkonkoma, NY 11779 (hereinafter also referred to as “EAI” "we" or "us") and our customer (the "Customer"). Effective May 15, 2021. EAI reserves the right to revise these GTC at any time.
Individual agreements shall have priority over these GTC. The agreements are to be recorded in writing as proof.
Except in those instances where EAI and the Customer enter into a separate written contract for the purchase of products and/or services providing for separate terms of sale, these GTC apply exclusively. General Terms and Conditions of the Customer that deviate from or add to these shall only apply if and to the extent that we have expressly agreed their validity in advance, at least in text form. The General Terms and Conditions of the Customer shall also apply if we had knowledge of the General Terms and Conditions of the Customer and knowingly accepted the Customer’s order without reservations.
Unless directly amended or excluded in these GTC, the applicable New Jersey law shall apply.
The GTC in their respective versions shall also apply to future contracts with the same customer, without us referring to them in each individual case.
II. Order, conclusion of contract
The Customer’s purchase order shall constitute an offer for services and/or goods. EAI shall accept by sending a confirmation, and/or in the case of products considered consumables, alternatively by sending the delivery item. EAI’s fulfillment of Customer’s order does not constitute acceptance of any of the Customer’s terms and conditions and does not serve to modify or amended these GTC.
III. Delivery, default of acceptance
Unless explicitly agreed otherwise, shipments are F.O.B point of shipment. Title and risk of loss for the Goods shall pass to the Buyer upon the transfer of the Goods to the freight carrier. EAI shall not be liable for any delays, loss or damage in transit. EAI may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Customer’s purchase order. As collateral security for the payment of the purchase price of the Goods, Customer hereby grants to EAI a lien on and security interest in and to all of the right, title and interest of the Customer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing.
This excludes the commissioning at the premises of the Customer if EAI have agreed to this.
In case of delivery from our registered office, if the Customer does not collect the product on the delivery date agreed as binding or immediately after receipt of the notification that the product is ready for dispatch (default of acceptance), EAI shall be entitled to demand compensation for damages or any additional expenses (e.g. storage costs) incurred as a result of this
IV. Delivery dates, product availability
Delivery dates shall only be binding if EAI have confirmed the date with the Customer in writing (e.g. in the order confirmation) and confirmed that the products are readily available. If the delivery date has not been confirmed in writing, the delivery time is within a reasonable period of time from dispatch of the order confirmation or upon receipt of notification for payment of the applicable down payment.
EAI will do its best to keep the Customer informed, in writing, if the product is not available, deliverable or delivery is delayed. If the product is not available, deliverable or delivery is delayed due to a force majeure or other events beyond our control, the delivery period shall automatically be extended to a reasonable period of time. If the product is not available for the foreseeable future for any reason or otherwise is delayed more than thirty (30) days, EAI reserves the right to withdraw from the contract and EAI will refund any payments made by the Customer.
V. Transfer of risk
Risk shall be transferred to the Customer when the product leaves our registered office. This shall equally apply for entitled partial deliveries as well as for the acceptance of packaging, transport, shipping and / or insurance costs by us. COD shipments are not permitted.
In the event of default of acceptance, risk shall be transferred to the Customer upon the expiration of the contractually agreed delivery date / receipt of the notification that the deliverable is ready for dispatch.
VI. Prices, other costs, terms of payment
The price of Goods is defined by EAI’s quotation and/or order confirmation provided to the Customer. Any prices referred to in or on the website are subject to change without notice. Quotations expire thirty (30) calendar days after the date of issue. All prices in USD unless otherwise stated. All prices are exclusive of all packaging, transport, shipping, insurance costs and / or sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by the Customer. The Customer shall be responsible for all such charges, costs and taxes.
The Customer shall be responsible for the payment of all applicable sales tax, or for providing a valid sales tax exemption certificate. When sending the offer, the Customer shall indicate which products is tax exempt.
Payments are to be made within 30 days of the invoice date even if the products are late or partially delivered. If the Customer shall fail to make payment within 30 days of the invoice date, EAI may make all other invoices due and owing from the Customer to EAI immediately due and payable. The Customer shall reimburse EAI for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which EAI does not waive by the exercise of any rights hereunder), EAI shall be entitled to suspend the delivery of any Goods if the Customer fails to pay any amounts when due hereunder and such failure continues for thirty (30) calendar days following written notice thereof. The receipt by the Customer of any partial payment shall not constitute a waiver or modification of any of the Customer's rights set forth herein or provided by law, including the right to terminate performance. Any time after 30 days of the invoice date, without further notice, EAI shall charge interest on the outstanding amount at the lesser of: (i) the rate of two percentage points above the prime rate set forth by Citibank, N.A.; or (ii) the highest rate permissible under applicable law, calculated daily and compounded monthly. If the amounts owing are in a currency other than U.S. dollars, interest on past due accounts will be charged at the rate of interest customarily charged by EAI on credit sales to its customers in the currency specified. EAI also reserves that right to withdraw from the contract and demand the return of the delivery products or demand the assignment of any claims the Customer may have against third parties. After taking back the products, EAI shall be entitled to dispose of them. The proceeds from the sale shall be offset against the Customer's liabilities, minus reasonable sellng cost.
EAI reserves the right to assert further damages caused by delay.
VII. Retention of title, software, resale
Until our claims arising from a delivery contract or an ongoing business relationship with the Customer have been met in full, EAI shall remain the owner of all products. EAI shall retain an ongoing intellectual property right or rights in the products. Any commercial resale of any product shall require EAI’s prior written consent.
Catalogues, product descriptions and information, assembly and operating instructions and quotation letters, in any form, shall remain our intellectual property even after transfer and/or providing to the Customer. EAI are entitled to any and all intellectual property rights of use for these exclusively and with no exception. The Customer shall need to obtain written consent from us in advances of distributing, sending and/or directing any person or entity links to our website, to use this in another way for its own purposes or to distribute any of the documents, either partially or wholly
VIII. Quality and Defect Rights and Return Policy
In general, a guarantee and/or warranty are not provided unless a warranty is explicitly stated in the order confirmation for the respective product. Further, EIA only provides products and services for use in business or government. Goods may constitute, contain, be contained in, incorporated into, attached to or packaged together with, products manufactured by a third party (”Third Party Product”). Third Party Products are not covered by the warranty set forth herein or under any warranty provided by EAI with a particular order or purchase. For the avoidance of doubt, EAI MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Due to technical circumstances, products may deviate slightly from their descriptions and/or representations in catalogues and other documents (also in electronic form), for example in color and dimensions. Minor deviations do not constitute a material defect. EAI reserves the right to make quality improvements.
EAI shall be liable for material defects and defects of title in accordance with the applicable New Jersey law at the time of delivery of the product or completion of service. . If applicable, the warranty period and the limitation period shall be twelve (12) months from the time of delivery of the product or performance of the service. In case of an alleged defect, EAI shall inspect the Goods within five (5) business days of receipt (the “Inspection Period”). The Customer will be deemed to have accepted the Goods unless it notifies EAI in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by EAI.
“Nonconforming Goods” means only the following: (i) Goods shipped are different than identified in Buyer’s purchase order; or (ii) Goods’ label(s) or packaging incorrectly identifies its contents.
(b) If the Customer timely notifies EAI of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods. The Customer shall ship, at it’s expense, the Nonconforming Goods to EAI’s facility. If EAI exercises its option to replace Nonconforming Goods, EAI shall, after receiving the Customer’s shipment of Nonconforming Goods, ship to the Customer, at EAI’s expense and risk of loss, the replaced Goods.
(c) Other than Nonconforming Goods, any Goods returned for the Customer’s convenience will be subject to a twenty percent (20%) restocking fee ($100 minimum) and with all shipping costs borne by the Customer. The Customer must contact EAI’s customer support (via firstname.lastname@example.org) for a Return Authorization Number (RA #) within five (5) business days of receipt of shipment to be eligible for return credit. The Customer must return the Goods within ten (10) business days of receiving RA #. Goods must be in new and unused condition, packed in original packaging and container, and include all manuals, peripherals, and accessories.
For instrument orders, a cancellation fee of thirty percent (30%) shall apply.
Customer shall not assign any order, or any interest therein, without the prior written consent of EAI. Assignments will be limited to the extent that our interests are not unreasonably impaired by the assignment. Any actual or attempted assignment without EAIs prior written consent shall entitle EAI to cancel such order upon notice to Customer and is subject to restocking fees and other charges. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the Customer of any of its obligations under these GTCs.
In the event of alleged strict liability, negligence and/or breach of implied warranty EAI shall only be liable for damages in accordance with the applicable New Jersey law, including but limited to, N.J.S.A. 2A:58C-1, et seq. All other liability and/or damages are hereby waived.
Jurisdictions have varying laws, codes and regulations governing construction, installation, and/or use of products for a particular purpose. Certain products may not be available for sale in all areas. EAI does not guarantee compliance or suitability of the products it sells with any laws, codes or regulations, nor does EAI accept responsibility for construction, installation and/or use of a product.
The Customer shall comply with all applicable laws, regulations and ordinances. The Customer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. The Customer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by the Customer. The Customer assumes all responsibility for shipments of Goods requiring any government import clearance. The Customer may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
Information about products in EAI’s catalogs, website and/or brochures are for illustrative purposes only. EAI does not intend to misrepresent any information provided, however, this information cannot be replied on and may not be identical to the specifications and operations of the product. Contact EAI representatives for exact manufacturer specifications and product details. EAI is not liable for the Customer’s misuse or reliance on the information provided about the products in EAI’s catalogs, website and/or brochures.
If Customer should violate any of these GTC, the Customer must indemnify EAI for any losses or damages that EAI incurs as a result.
XI. Force Majeure
EAI shall not be liable or responsible to the Customer, nor be deemed to have defaulted or breached these GTCs and/or any other agreement, for any failure or delay in fulfilling or performing any term when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of EAI including, without limitation, acts of God, labor disruptions, acts of war, acts of terrorism (whether actual or threatened), governmental decrees, controls or acts of authority, terrorist threats or acts, riot, or other civil unrest, national emergency, states of emergency, insurrections, epidemics, pandemics, quarantines, shortages, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), communication or power failures, fires, accidents, explosions, inability to procure or ship product or obtain permits and licenses, inability to procure supplies or raw materials, severe weather conditions, catastrophic events, or any other circumstance or cause beyond the reasonable control of EAI in the conduct of its business.
XIII. Dispute Resolution – Arbitration and Choice of Law
Any controversy or claim arising out of or relating to this contract, or the breach thereof, , including any matters or disputes relating to or arising from the purchase or use of any product, service, or information offered or made available through EAI, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
Customer acknowledges and agrees that it is waiving the right to sue or go to court to secure relief. These GTC and all legal relationships between us and the Customer are subject to the laws of the State of New Jersey. EAI and Customer agree that all transactions for products and services shall be governed by the laws of the State of New Jersey. However, EAI shall also be entitled to make claims for damages against the Customer in the general legal venue of the Customer.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages).
To begin an arbitration proceeding, Customer must send a letter requesting arbitration and describing its claim to EAI registered office.
Payment for all filing, administration and arbitrator fees will at the Customer’s expense. EAI will reimburse those fees for claims totaling less than $5,000 unless the arbitrator determines the claims are frivolous. Likewise, EAI will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. For claims totaling less than $5,000, Customer may choose to have the arbitration conducted by telephone, or based on written submissions. For all other claims, the proceeding will be conducted in person. EAI and Customer both agree that either party may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
XIII. Final provisions
Unless otherwise stipulated in these GTC, declarations that have to be issued after conclusion of the contract (e.g. reminders, setting of deadlines, notifications of defects, declarations of withdrawal) require at least written notice from the Customer to be effective.
The Customer hereby waives the right to withhold payments, to recoup monies or to set off any amount due and owing based on any alleged defaults and/or breaches of this contract. . Any warranty rights according to Section VIII remain unaffected hereby.
For any reason, the Customer may contact EAI as follows:
Phone: 856 787 0022
EAI may modify or update this GTC from time to time to reflect the changes in our business and practices, and you should review this page periodically. EAI will update the ‘last modified’ date at the bottom of this page when we post changes to the GTC. If you object to any changes, you may close your account. Continuing to use our website, catalogs and/or brochures after EAI publish changes to this GTC means that you are consenting to the changes.
If any portion of these terms and conditions is found to be invalid or unenforceable, the invalid or unenforceable term shall be severed from these terms and conditions, and the remaining terms and conditions shall be valid and fully enforceable as written.
Updated: May, 2021