Terms and conditions of product purchases

  1. Acceptance of Terms — By purchasing and accepting delivery of products supplied by EcoMag Limited  (“Products”) you agree to be bound by these terms and conditions (the “Terms and Conditions”).
  2. Changes — Once submitted, any change(s) to your order(s) may be made only with advance written approval of EcoMag Limited and such changes may require different terms, including a change in the price and/or time of delivery.  Once submitted, you may not cancel any order unless cancellation is expressly approved by EcoMag Limited in writing, which approval may be contingent on your payment of EcoMag Limited’s costs or other charges, including, but not limited to, storage and shipment costs, costs of producing non-standard materials, costs of purchasing non-returnable materials, cancellation costs imposed on EcoMag Limited by its suppliers, and any other costs resulting from cancellation.  A verified bill of costs issued by an officer or other authorised representative of EcoMag Limited shall be conclusive as to the amount of such costs.  EcoMag Limited reserves the right to cancel any order, in whole or in part, upon your breach of these terms and conditions or your bankruptcy, insolvency, dissolution, receivership proceedings, or upon the occurrence of any event leading EcoMag Limited to reasonably question your willingness or ability to perform.
  3. Delivery, claims — All sales will be delivered from EcoMag Limited shipping point unless otherwise noted.  If shipping and handling charges are quoted or invoiced, they will include charges in addition to actual freight costs.  Delivery of Products to the carrier at EcoMag Limited’s shipping point shall constitute delivery to you and you shall bear all risk of loss or damage in transit.  The general method of shipment for each item is listed in EcoMag Limited’s product directory.  However, EcoMag Limited reserves the right, in its sole discretion, to determine the exact method of shipment for any particular shipment.  EcoMag Limited reserves the right to make delivery in instalments, all such instalments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries.  Delay in delivery of any instalment shall not relieve you of your obligations to accept remaining deliveries.  Immediately upon your receipt of any Products shipped hereunder, you shall inspect the same and shall notify EcoMag Limited in writing of any claims for shortages, defects or damages and shall hold Products for EcoMag Limited’s written instructions concerning disposition.  If you fail to so notify EcoMag Limited within five days after the Products have been received by you, such Products shall conclusively be deemed to conform to the terms and conditions hereof and to have been irrevocably accepted by the you.
  4. Delays — Any specified delivery dates are estimates only and do not represent a promise by EcoMag Limited to deliver Products at a date certain.  EcoMag Limited shall not be liable for any loss, damage or penalty as a result of any delay in or failure to manufacture, deliver or otherwise perform hereunder due to any cause beyond EcoMag Limited’s reasonable control, including, without limitation, unsuccessful reactions, act(s) of you, embargo or other governmental act, regulation or request affecting the conduct of EcoMag Limited’s business, fire, explosion, accident, theft, vandalism, riot, acts of war, strikes or other labor difficulties, lightning, flood, windstorm or other acts of God, delay in transportation, or inability to obtain necessary labor, fuel, materials, supplies or power at current prices.  If any such event continues for longer than 180 days, either party may terminate your order and you will pay EcoMag Limited for work performed prior to termination and all reasonable expenses incurred by EcoMag Limited as a result of termination.  In the event of delays in delivery or performance caused by force majeure or by you, the date of delivery or performance shall be extended by the period of time EcoMag Limited is actually delayed or as mutually agreed.  If, for reasons other than the foregoing, EcoMag Limited should default or delay or not deliver Products, your sole remedy against EcoMag Limited is an option to cancel your purchase order, through prior written notice to EcoMag Limited.
  5. Allocation of Products — If EcoMag Limited is unable for any reason to supply the total demands for Products specified in your order, EcoMag Limited may allocate its viable supply among any or all customers on such basis as EcoMag Limited may deem fair and practical, without liability for any failure of performance which may result therefrom.
  6. Payment  — Unless otherwise stated, payment in full shall be made at time of order.
  7. Taxes and other charges — EcoMag Limited shall not be responsible for the payment of any use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between, with the sole exception of any Goods and Services Tax (GST) invoiced and collected from you by EcoMag Limited.  All other such charges (if any) must be paid by you separately and in addition to the prices quoted or invoiced.
  8. Pricing — Any quotation provided by EcoMag Limited is firm only if you place a corresponding order within the time specified on the quote or, if no time period is mentioned, within 30 days.  You must request shipment of the entire quantity of Products ordered within 6 months from the date of order, otherwise, EcoMag Limited’s standard prices at time of shipment may apply, at EcoMag Limited’s option, to future deliveries.
  9. Warranties — EcoMag Limited warrants that its products shall, at the time of delivery, conform to the description of such products as provided to you by EcoMag Limited through EcoMag Limited’s product directory, analytical data or other then-current literature.  THIS WARRANTY IS EXCLUSIVE, AND ECOMAG LIMITED MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF ANY THIRD-PARTY PATENT OR INTELLECTUAL PROPERTY RIGHTS. EcoMag Limited’s warranties made in connection with this sale shall not be effective if EcoMag Limited has determined, in its sole discretion, that you have misused the Products in any manner, have failed to use the Products in accordance with industry standards and practices, or have failed to use the Products in accordance with instructions, if any, furnished by EcoMag Limited.  ECOMAG LIMITED’S SOLE AND EXCLUSIVE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO PRODUCTS PROVED TO ECOMAG LIMITED’S SATISFACTION TO BE DEFECTIVE OR NONCONFORMING SHALL BE REPLACEMENT OF SUCH PRODUCTS WITHOUT CHARGE OR REFUND OF THE PURCHASE PRICE, IN ECOMAG LIMITED’S SOLE DISCRETION, UPON THE RETURN OF SUCH PRODUCTS IN ACCORDANCE WITH ECOMAG LIMITED’S INSTRUCTIONS.  ECOMAG LIMITED SHALL NOT IN ANY EVENT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCTS, EVEN IF ECOMAG LIMITED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, COST OF CAPITAL, LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALISE SAVINGS, ANY LIABILITY OF BUYER TO A THIRD PARTY, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH PRODUCT INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY OR PROPERTY DAMAGE UNLESS SUCH PERSONAL INJURY OR PROPERTY DAMAGE IS CAUSED BY ECOMAG LIMITED’S GROSS NEGLIGENCE.  THE EXCLUSION OF SUCH DAMAGES AND/OR CLAIMS SHALL BE DEEMED INDEPENDENT OF, AND SHALL SURVIVE, ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY ARISING FROM THE PURCHASE AND/OR THESE TERMS AND CONDITIONS.  ECOMAG LIMITED’S LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO CASE EXCEED THE PURCHASE PRICE FOR THE SPECIFIC PRODUCTS THAT GIVE RISE TO THE BREACH.  THESE EXCLUSIONS AND LIMITATIONS ON DAMAGES SHALL APPLY REGARDLESS OF HOW THE LOSS OR DAMAGE MAY BE CAUSED AND AGAINST ANY THEORY OF LIABILITY, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY.  ALL CLAIMS MUST BE BROUGHT WITHIN ONE (1) YEAR OF SHIPMENT, REGARDLESS OF THEIR NATURE.
  10. Your Use of Products — EcoMag Limited’s Products are intended primarily for laboratory research purposes and, unless otherwise stated on product labels, in EcoMag Limited’s product directory or in other literature furnished to you, are not to be used for any other purposes, including but not limited to, in vitro diagnostic purposes, in foods, drugs, medical devices or cosmetics for humans or animals or for commercial purposes.  You acknowledge that the Products have not been tested by EcoMag Limited for safety and efficacy in food, drug, medical device, cosmetic, commercial or any other use, unless otherwise stated in EcoMag Limited’s literature furnished to you.  You expressly represent and warrant to EcoMag Limited that you will properly test, use, manufacture and market any Products purchased from EcoMag Limited and/or materials produced with Products purchased from EcoMag Limited in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with all applicable laws and regulations, now and hereinafter enacted.You assume responsibility to assure that the Products purchased from EcoMag Limited are approved for use under government chemical regulations in Australia, if applicable.  You have the responsibility to verify the hazards and to conduct any further research necessary to learn the hazards involved in using Products purchased from EcoMag Limited.  You also assume the duty to warn your employees, those associated with you and any auxiliary personnel (such as freight handlers, etc.) of any risks involved in using or handling the Products.  You agree to comply with instructions, if any, furnished by EcoMag Limited relating to the use of the Products and not misuse the Products in any manner.  If the Products purchased from EcoMag Limited are to be repackaged, relabeled or used as starting material or components of other products, you agree that you will verify EcoMag Limited’s assay of the Products.  No Products purchased from EcoMag Limited shall, unless otherwise stated, be considered to be foods, drugs, medical devices or cosmetics.
  11. Resale, Distribution and Export Prohibited — You warrant to EcoMag Limited that you will use the Products directly and as permitted by Section 10 above, and you further agree that the Products may not be marketed, distributed, resold or exported by you for any purpose.
  12. Patent disclaimer — EcoMag Limited does not warrant that the use or sale of the Products delivered hereunder will not infringe the claims of any Australian or other patents covering the product itself or the use thereof in combination with other products or in the operation of any process.
  13. Returns — Products may not be returned for credit except with EcoMag Limited’s permission, and then only in strict compliance with EcoMag Limited’s return shipment instructions.  You must obtain advance written authorisation from EcoMag Limited and a written return authorisation document in the form then in use by EcoMag Limited, prior to returning any Products.  Certain items and quantities may not be returned for credit or under any circumstances.  These items include, but are not limited to: diagnostic reagents, refrigerated or frozen products; reagents and standards which have passed their expiration dates; custom products or special orders and products missing labels, parts.  Any returned items may be subject to a 20% processing fee and must be returned within 90 days of purchase.
  14. Technical Assistance — At your request, EcoMag Limited may, in EcoMag Limited’s sole and absolute discretion, furnish technical assistance and information with respect to EcoMag Limited’s Products.  ECOMAG LIMITED MAKES NO WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, WITH RESPECT TO TECHNICAL ASSISTANCE OR INFORMATION PROVIDED BY ECOMAG LIMITED OR ITS PERSONNEL.  ANY SUGGESTIONS BY ECOMAG LIMITED REGARDING USE, SELECTION, APPLICATION OR SUITABILITY OF THE PRODUCTS SHALL NOT BE CONSTRUED AS AN EXPRESS WARRANTY UNLESS SPECIFICALLY DESIGNATED AS SUCH IN A WRITING SIGNED BY AN OFFICER OR OTHER AUTHORISED REPRESENTATIVE OF ECOMAG LIMITED.
  15. Miscellaneous — EcoMag Limited’s failure to strictly enforce any particular term or condition contained herein or to exercise any right with respect to your order shall not constitute a waiver of EcoMag Limited’s right to strictly enforce such terms or conditions or exercise such right thereafter.  All rights and remedies are cumulative and are in addition to any other rights and remedies EcoMag Limited may have at law or in equity.  Any waiver of a default by you shall be in writing and shall not operate as a waiver of any other default or of the same default thereafter.  If any of these terms shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby.  The section headings herein are for convenience only; they form no part of the Terms and Conditions and shall not affect their interpretation.  These Terms and Conditions shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto, and their respective heirs, personal representatives, successors and assigns.
  16. Indemnity and Insurance — You shall indemnify and hold EcoMag Limited, its corporate affiliates, agents, employees and representatives harmless from and against any and all claims, damages, losses, costs or expenses (including attorney’s fees) resulting from your (a) sale or use of the Products, (b) breach of the provisions and representations contained in the Terms and Conditions or (c) negligence, recklessness or misconduct. You shall maintain: workers’ compensation insurance with statutory limits; (ii) employers’ liability insurance for bodily injury as required by law; and (iii) comprehensive general liability insurance for death, bodily injury and property damage, including products liability coverage, as required by law.