top of page

TERMS & conditions of sale

TERMS & CONDITIONS. These Terms and Conditions govern the sales made by I.V. Labs, Inc. d/b/a MERGE Chemistry (“Company”) to Customer. These Terms and Conditions constitute an integral part of the sales contract between Company and Customer for the sale and purchase of the Product set forth in the Quotation. By accepting the Quotation, Customer shall be deemed to enter into a purchase order for the subject Product and any associated services and these Terms and Conditions shall govern. Any and all subsequent orders for the Product or any other goods or services provided by Company shall also be subject to these Terms and Conditions. Company’s failure to object to provisions contained in any communication from Customer shall not be deemed a waiver of these Terms and Conditions. Any changes in the terms and conditions contained herein must be specifically agreed to in writing and signed by an authorized officer of Company. In the event of a conflict between these Terms and Conditions and different terms and conditions set forth on the Quotation, these Terms and Conditions shall prevail.

QUOTATION. Except as otherwise stated therein, the Quotation is firm for sixty (60) days from the Quotation Date as set forth on the Quotation. The pricing in the Quotation applies only to the Product type and quantity set forth in the Quotation. Company may, at its option, change the Product pricing and other terms for any subsequent sales of the Product or any other goods or services offered by Company. 

Prices. The applicable prices are only those specified in the Quotation and, unless expressly specified, do not include applicable destination charges or taxes. Prices and lead times are subject to revision due to interruptions, delays, or engineering changes.

Taxes. In addition to the prices set forth on the Quotation, Customer agrees to pay an amount equal to any and all applicable federal, state and local taxes, duties and other levies, which amounts shall be an additional charge to Customer.

 

PACKAGING. Company shall bear the packaging costs of the Product specified in the Quotation. Company shall be responsible for any delay, breakage or damage prior to delivery to the common carrier as set forth below.

TITLE AND DELIVERY. Unless otherwise set forth on the Quotation, title and risk of loss shall pass to Customer upon delivery of the Product to Company’s common carrier collecting the Product from Company’s facility. As collateral security for the payment of the purchase price of the Product, Customer hereby grants to Company a lien on and security interest in and to all of the right, title, and interest of Customer in, to, and under the Product, 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. The security interest granted under this provision constitutes a purchase money security interest under the Virginia Uniform Commercial Code. Company shall prepay the shipping costs and invoice such shipping costs to Customer. 

PAYMENT. Terms of payment shall be net thirty (30) days from date of invoice unless other arrangements have been agreed upon by both parties. Interest on late payments may accrue at a rate of 1.5% per month. In case of a partial return of the Product by Customer owing to defects covered by warranty, the invoice shall be paid within the term stated for the amount corresponding to the quantity of Product accepted. Customer shall not make reductions on the invoice unit price or quantities without prior written approval of Company.

ADDITIONAL FEES. Company may charge the following additional fees in the circumstances provided for below: 

(i) Returned Check Fee. In the event that any payment made by check is returned to Company due to insufficient funds or for any other reason, Customer shall be responsible for a returned check fee of $50. This fee will be added to the outstanding balance and must be paid in addition to the original amount owed.

(ii) Storage Fees. Company shall charge Customer for any and all fees incurred by Company for orders not timely picked up by Customer. For all orders shipped under Ex-Works terms, if the goods are not picked up within 7 business days from the date of shipment, a storage fee of $60 per pallet will be applied. This fee is intended to cover storage costs and will be added to the total amount due by Customer for the order.

CANCELLATION/RESCHEDULE. Once accepted by Customer in writing: (i) any custom order for Product pursuant to the Quotation is firm and non-cancelable once manufactured in whole or part; and (ii) any order of stock Product pursuant to the Quotation is firm and non-cancelable once delivered to the common carrier for shipping.

LIMITED WARRANTY/DISCLAIMER. Company warrants only that Product sold or delivered shall conform to the standard physical characteristics for that Product as defined within the applicable Product specifications supplied by Company in connection with the Quotation.

If, during the Warranty Period, any Product is found to be defective in material or workmanship, Company shall replace the defective Product; provided, however, that such replacement is Customer’s sole and exclusive remedy for receipt of a defective Product. This warranty is non-transferable upon unauthorized resale of the Product. This warranty does not extend to damage or wear caused by misuse, negligence, accident, corrosion, modification by the customer, loss of product, or tampering in a manner to impair normal operation of the Product.  

COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, ARISING BY LAW, CONTRACT OR OTHERWISE, INCLUDING WARRANTIES ARISING UNDER THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INTEROPERABILITY OR NON-INFRINGEMENT, ALL OF WHICH ARE SPECIFICALLY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.

TECHNICAL ADVICE. COMPANY’S WARRANTIES AS HEREIN SET FORTH SHALL NOT BE ENLARGED, DIMINISHED, OR OTHERWISE AFFECTED BY, NOR SHALL ANY OBLIGATION OR LIABILITY OF COMPANY ARISE OUT OF COMPANY’S RENDERING OF TECHNICAL ADVICE.

OWNERSHIP. The formulas used to create and/or synthesize the Product are proprietary to Company and title thereto remains with Company. Customer acknowledges that (a) all copyrights, trademarks, patents, trade secrets and other proprietary rights in or related to the Product are owned by Company and (b) that any changes or modifications that Company makes to the Product as a result of any testing conducted by Customer shall be owned solely and exclusively by Company and shall not confer upon or convey to Customer any ownership or other rights in the Product.

LIMITATION OF LIABILITY. COMPANY’S LIABILITY TO CUSTOMER FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ANY ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE SHALL BE LIMITED TO THE PRICE SPECIFIED IN THE QUOTATION FOR THE SPECIFIC PRODUCT THAT CAUSED THE DAMAGES OR THAT IS THE SUBJECT MATTER OF, OR IS DIRECTLY OR INDIRECTLY RELATED TO THE CAUSE OF ACTION. EXCEPT FOR BREACHES OF THE CONFIDENTIALITY AND/OR INTELLECTUAL PROPERTY PROVISIONS HEREOF, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF USE OR OTHER SPECIAL, COLLATERAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION THEREOF, WHETHER IN CONTRACT OR IN TORT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ASSUMES ALL LIABLITY FOR ANY AND ALL DAMAGES ARISING FROM OR IN CONNECTION WITH, THE USE OR MISUSE OF THE PRODUCTS BY CUSTOMER, ITS EMPLOYEES, OR OTHERS. IN NO EVENT MAY ANY ACTION BE BROUGHT AGAINST COMPANY ARISING OUT OF ANY CONTRACT, AGREEMENT OR SALE COVERED BY THESE TERMS AND CONDITIONS MORE THAN ONE (1) YEAR AFTER THE CLAIM OR CAUSE OF ACTION ARISES, DETERMINED WITHOUT REGARD TO WHEN CUSTOMER SHALL HAVE LEARNED OF THE DEFECT, DAMAGE, INJURY OR LOSS.

FORCE MAJEURE. Company will not be responsible or liable for any delay or failure in performance arising as a result of fire, accident, acts of God, acts of public enemy, war, labor disputes, failure or delays, transportation, inability to secure product, raw materials or machinery for the manufacturing process, requirements or acts of any government or agency thereof, judicial action or other causes beyond Company’s control. In such event, Company may defer performance for a period equal to the time lost by reason of the delay. If such time exceeds forty-five (45) days, Company may by written notice to Customer cancel the Quotation as to any Products then undelivered without liability to Customer.

CONFIDENTIALITY. Customer acknowledges that the Product (and each unit thereof) contains valuable trade secrets and confidential information owned by Company (collectively, “Confidential Information”). Confidential Information includes but is not limited to the functionality of the Product and the formulas used to create and/or synthesize the Product. All drawings, diagrams, Product specifications, instructions, renderings, technical information and other material furnished by Company in connection with the Product (and all copies thereof) likewise constitute Confidential Information, as do the terms and conditions of the Quotation (including, without limitation, pricing information). Customer agrees to take all reasonable precautions to secure and protect such Confidential Information in a manner consistent with the maintenance of Company’s rights therein (but in no event, using anything less than the care taken to protect Customer’s proprietary data) and to ensure that all its employees or consultants who are permitted access to such Confidential Information understand that it is Confidential Information and agree in writing to abide by the terms and conditions of this Confidentiality provision. Any tests conducted by Customer and the results thereof shall be deemed confidential information and the property of Customer. No other party shall be given the results of such tests by the Customer without written approval of Company. Violation of any provision of this paragraph shall cause immediate and irreparable harm to Company and Customer agrees and acknowledges that Company shall be entitled to seek and secure the remedy of injunctive relief, as well as other applicable legal or equitable relief, without the necessity of posting a security or bond. Notwithstanding the foregoing, Confidential Information shall not include application and test data regarding the performance of Customer’s products or information about a Product made public by the Company.

ASSIGNMENT. Customer will not assign or subcontract its order, any interest therein or any right therein without the prior written consent of Company.

GOVERNING LAWS; DISPUTES. Any dispute regarding these Terms and Conditions will be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to its conflict of laws provisions. All disputes arising out of or in connection with these Terms and Conditions, if involving a Customer based in a country, other than the United States of America, shall be resolved under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with said Rules of Arbitration. In the event a dispute arises under these Terms and Conditions related to a Customer based within the United States of America, such dispute shall be brought in the federal or state courts located in the Commonwealth of Virginia. The United Nations Convention on the International Sale of Goods shall not apply to these Terms and Conditions. In the event a dispute arises under these Terms and Conditions, the prevailing party in such dispute shall be entitled to recover its attorneys’ fees, court or arbitration costs. 

EXPORT CONTROL. Customer will comply fully with all export control laws and regulations of the United States Government and with any applicable laws and regulations of any other country and will indemnify, if requested, Company for any failure.

Data Protection. All processing by the Company of personal data and other data provided by the Customer shall be in accordance with applicable laws. The Company’s processing of personal data on behalf of the Customer shall be solely for the purpose of providing the Product and shall be in accordance with the Company’s privacy policy.

Severability of Provisions. In the event of any one or more of the provisions contained herein shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this contract will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.

INDEPENDENT CONTRACTORS. The relationship of the parties is that of individual independent contractors or of vendor and vendee and nothing contained herein shall be deemed to (i) create a joint venture or partnership among Company and Customer, or (ii) cause either party or any of their respective officers, agents or employees to be or become the agent or employee of the other party for any reason.

COMPLETE AGREEMENT. The Quotation, including these Terms and Conditions and all attachments and documents incorporated by reference herein, constitutes the complete and exclusive statement of the terms and conditions of the sale contract between Company and Customer and supersedes all prior or contemporaneous agreements, representations and/or communications, either oral or written, between the parties hereto or any representative of such parties with respect to the subject matter hereof. No change to these Terms and Conditions or waiver of any provision hereof will be binding on Company unless made in writing and signed by a duly authorized representative of Company. 

bottom of page