Watson-Marlow, Inc. Terms and Conditions of Sale

Watson-Marlow, Inc.

Terms and Conditions of Sale

Revision 1.0


  1. Applicability. These terms and conditions of sale (these "Terms") are the only terms which govern the sale of the goods ("Goods") by Watson-Marlow, Inc. (“Seller”) to a person or firm who purchases Goods from the Seller ("Buyer"). Notwithstanding anything to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of that contract shall NOT prevail to the extent they are inconsistent with these Terms. The accompanying confirmation of sale ("Order Confirmation") and these Terms comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer's general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order (“Order”) or such terms. Fulfillment of an Order does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms. Materially different or additional terms contained in an Order are rejected and not binding on Seller unless accepted in writing by Seller. Orders must be sent to the Seller’s designated address and are valid only after receipt of an Order Confirmation by Seller.

  2. Payment. The price, taxes, and charges as stated on the Order Confirmation and/or invoice shall be paid before shipment or according to Buyer's account credit limit and payment terms established with Seller. Payment terms are typically 100% Net 30 for standard products. Environmental Project (the “Project”) or Custom Goods orders may be subject to milestone payment terms and bonds, as defined by Seller at time of Order Confirmation, with final payments due at completion of start-up.  Title and possession are delivered Ex Works with packing list, and related documentation. Payments may be made electronically to Seller’s Citizens bank account (A.B.A ACH 211070175 A.B.A. Wire 011500120 SWIFT CTZIUS33 Account 1134078894) or to Seller's designated address (Watson Marlow, Inc., P.O. Box 536285, Pittsburgh, PA 15253-5904). Payments may not be made directly to company representatives. Offsets are not allowed. Seller may refuse an Order if an account is in arrears. Seller may assess interest on all amounts past due at the highest lawful rate, or an annual rate of eighteen percent (18%), whichever rate is lower. Buyer will pay all costs and expenses, including reasonable attorney’s fees, incurred by Seller in collecting any amounts due, including interest.

  3. Project Bonds. For Project orders over $50,000, upon Seller’s request Buyer shall furnish to Seller a payment bond (“Bond”) in an amount equal to the greater of (a) the full amount of the Buyer’s payment obligations under the Order or (b) the total amount of all payment obligations under the Project in which the equipment to be sold by Seller to Buyer hereunder is to be used or incorporated. The Bond shall guarantee to the Seller the Buyer’s prompt and full payment and full performance of all the terms and conditions of the Order. The terms of the Bond shall provide that Seller shall have the right to demand payment by the issuer of the Bond directly to Seller of all outstanding amounts payable by Buyer to Seller under the Order (including purchase price, service and installation charges, and cancellation fees) ninety (90) days or less after the due date thereof. The Bond shall be executed in a form and by a surety or sureties reasonably satisfactory to the Seller. Bond premiums are the sole responsibility of the Buyer. The Bond shall be security for the performance by Buyer of its obligations and liabilities under the Order, and shall not relieve Buyer from any of such obligations and liabilities. Failure to deliver the Bond in compliance with these Terms shall be deemed a material breach by Buyer under the Order. Delivery of the Bond shall be a condition to commencement or performance by Seller of its obligations under this Order, provided that such commencement or performance by Seller shall not be deemed a waiver of any of Seller’s rights or Buyer’s obligations under these Terms. Prior to the installation of the equipment sold by Seller under the Order and its incorporation into the Project, such equipment shall be subject to a security interest in favor of Seller to secure all obligations and liabilities of Buyer under the Order. Seller is hereby authorized to take such action, including filing of financing statements under the Uniform Commercial Code covering such equipment, as Seller shall deem necessary and appropriate to evidence and perfect such security interest.

  4. Returns. Returns are only authorized by express consent of Seller and in accordance with Seller’s return process and policy. Each return must be accompanied with a Return Material Authorization number and, to ensure the safety of Seller’s employees and to minimize environmental risks, Seller will require a Certificate of Decontamination or other documentation prior to authorizing the return.

  5. Taxes and Assessments. Prices quoted exclude assessments, sales, use, value added or excise taxes, freight, duties, imposts, and other charges which are the sole liability of Buyer. If Buyer asserts no sales tax is due, Buyer shall furnish, a tax exemption certificate for the jurisdiction where the sale deemed is made, prior to Seller accepting the Order from Buyer.

  6. Delivery, Title, Shipment, and Risk or Loss. Date of delivery requested in the Order may be modified by the Acknowledgment or by occurrence of a Force Majeure event. Risk of loss passes on delivery Ex Works. Unless otherwise stated in writing by Buyer: (i) Seller may select packing, shipment, routing and carrier; (ii) goods will be packaged according to industry standards and special packaging or designated carriers will be subject to additional charges; (iii) Buyer shall inspect goods within 10 days of receipt; Any claim for quality or shortages must be made in writing within ten (10) days after Buyer receives a shipment, and if not made, shall be deemed waived. If Buyer wrongfully fails to accept a shipment after placing an order, Buyer shall be deemed in default of these Terms and the goods may be held at Buyer’s expense in a third party facility and disposed per applicable law without prejudice to Seller’s remedies. Buyer shall bear all risk of and responsibility for damage or loss to the equipment after Seller delivers the equipment to the carrier at its point of shipment. Buyer agrees to provide and maintain adequate insurance for the equipment supplied under the Order to fully protect Seller’s interest during the time between delivery and final payment. Loss or damage by fire or other causes during such period shall not relieve Buyer from its obligations under the Order.

  7. Performance and Medical Application. Equipment performance is not warranted or guaranteed unless separately agreed to in a special agreement between Buyer and Seller .  Performance curves and other information submitted to Buyer are approximate and no warranty or guarantee shall be deemed to arise as a result of such submittal. All testing shall be done in accordance with Seller’s pre-approved method as agreed upon with Buyer. Seller’s products are not to be used in or resold for use in medical or therapeutic devices unless Buyer signs and Seller at its discretion accepts Seller’s standard Buyer’s Assumption of Liability for Medical Applications form and Buyer complies with the requirements of that form.

  8. Force Majeure. Seller shall not be responsible for any delays or non-performance caused by strikes, accidents, embargoes, fire, floods, inability to obtain materials, labor or services, conditions arising from government orders or regulations, war or national emergency, Acts of God, and any other similar events which are deemed beyond Seller's reasonable control as events of Force Majeure. Buyer may not refuse delivery on grounds of commercial frustration of purpose or impracticability.

  9. Security Interest. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer 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. The security interest granted under this provision constitutes a purchase money security interest. Buyer agrees Seller may record its interest on public records evidencing such interest of Seller. Buyer shall, on request of Seller, execute any instrument required to perfect, maintain or enforce such security interest. Seller shall release such security interest upon payment of the purchase price in full by the Buyer.

  10. Limited Warranty and Remedy. Seller warrants from date of shipment equipment (and its component parts) of its own manufacture against defects in materials and workmanship under normal use and proper maintenance for a period of 12 months or in accordance with the published product manuals at the time of purchase, whichever is longer. Excluded from warranty are consumable items such as fuses, rollers or shoes and tubing. Seller does not warrant accessories or components that are not manufactured by Seller. However, to the extent possible, Seller agrees to assign to Buyer its rights under the original manufacturer’s warranty, without recourse to Seller. Buyer must give Seller notice in writing of any alleged defect covered by this warranty (together with all identifying details, including the serial number, the type of equipment, and the date of purchase) within thirty (30) days of the discovery of such defect during the warranty period. No claim more than 15 days after the expiration of the warranty period shall be valid. If requested by Seller, any equipment (or its component parts) must be promptly returned to Seller (in accordance with Article 4 of these Terms) prior to any attempted repair, or sent to an authorized service station designated by Seller, and Buyer shall pay all shipping expenses for equipment to be returned to Seller. Seller shall not be liable for any loss or damage to goods in transit, nor will any warranty claim be valid unless the returned goods are received intact and undamaged as a result of shipment. If the equipment is covered under warranty, it shall be returned to Buyer at Seller’s expense, otherwise, shipping charges will be the responsibility of the Buyer. Seller will not give Buyer credit for parts or equipment returned to Seller, and will not accept delivery of any such parts or equipment, unless Buyer has obtained Seller’s approval in writing. The warranty extends to repaired or replaced parts of Seller’s manufacture for ninety (90) days or for the remainder of the original warranty period applicable to the equipment or parts being repaired or replaced. This warranty applies to the repaired or replaced part and is not extended to the product or any other component of the product being repaired. Seller may substitute new equipment or improved part(s) of any equipment judged defective without further liability. All repairs or services performed by Seller, which are not covered by this warranty, will be charged in accordance with Seller’s standard prices then in effect. During the warranty period for Project orders, upon request by Buyer and approval by Seller, Seller will provide a factory authorized field service technician for labor to repair or replace the damaged product on site. Should the damage not be covered under warranty, the Buyer is responsible for all travel and labor costs associated with the on-site service. All costs associated with on-site service performed by someone other than an authorized Seller field service technician is the sole responsibility of the Buyer. THIS WARRANTY IS THE SOLE WARRANTY OF SELLER AND SELLER HEREBY EXPRESSLY DISCLAIMS AND BUYER WAIVES ALL OTHER WARRANTIES EXPRESSED, IMPLIED IN LAW OR IMPLIED IN FACT, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SELLER’S SOLE OBLIGATION UNDER THIS WARRANTY SHALL BE, AT ITS OPTION, TO REPAIR OR REPLACE ANY EQUIPMENT (OR ITS COMPONENT PARTS) WHICH HAS A DEFECT COVERED BY THIS WARRANTY, OR TO REFUND THE PURCHASE PRICE OF SUCH EQUIPMENT OR PART. UNDER THE TERMS OF THIS WARRANTY, SELLER SHALL NOT BE LIABLE FOR (A) CONSEQUENTIAL, COLLATERAL, SPECIAL OR LIQUIDATED LOSSES OR DAMAGES; (B) EQUIPMENT CONDITIONS CAUSED BY NORMAL WEAR AND TEAR, ABNORMAL CONDITIONS OF USE, ACCIDENT, NEGLECT, OR MISUSE OF SAID EQUIPMENT; (C) THE EXPENSE OF, AND LOSS OR DAMAGE CAUSED BY, REPAIRS OR ALTERATIONS MADE BY ANYONE OTHER THAN THE SELLER; (D) DAMAGE CAUSED BY ABRASIVE MATERIALS, CHEMICALS, SCALE DEPOSITS, CORROSION, LIGHTNING, IMPROPER VOLTAGE, MISHANDLING, ADVERSE ENVIRONMENTS OR OTHER SIMILAR CONDITIONS; (E) ANY LOSS, DAMAGE, OR EXPENSE RELATING TO OR RESULTING FROM INSTALLATION, REMOVAL OR REINSTALLATION OF EQUIPMENT; (F) ANY LABOR COSTS OR CHARGES INCURRED IN REPAIRING OR REPLACING DEFECTIVE EQUIPMENT OR PARTS, INCLUDING THE COST OF REINSTALLING PARTS THAT ARE REPAIRED OR REPLACED BY SELLER; (G) ANY EXPENSE OF SHIPMENT OF EQUIPMENT OR REPAIRED OR REPLACEMENT PARTS; OR (H) ANY OTHER LOSS, DAMAGE OR EXPENSE OF ANY NATURE. UNDER NO CIRCUMSTANCES SHALL THE SELLER HAVE ANY LIABILITY UNDER THE ORDER OR OTHERWISE FOR LIQUIDATED DAMAGES OR FOR COLLATERAL, CONSEQUENTIAL OR SPECIAL DAMAGES OR FOR LOSS OF PROFITS, OR FOR ACTUAL LOSSES OR FOR LOSS OF PRODUCTION OR PROGRESS OF CONSTRUCTION, REGARDLESS OF THE CAUSE OF SUCH DAMAGES OR LOSSES. IN ANY EVENT, SELLER’S AGGREGATE TOTAL LIABILITY UNDER THE ORDER OR OTHERWISE SHALL NOT EXCEED THE CONTRACT PRICE. BUYER AGREES TO INDEMNIFY AND HOLD HARMLESS SELLER FROM ALL CLAIMS BY THIRD PARTIES IN EXCESS OF THESE LIMITATIONS.

  11. Intellectual Property. The Buyer acknowledges that the intellectual property rights in the Goods and any materials prepared by the Seller or on its behalf which relate to the Goods and their development (including, without limitation, drawings, designs, samples, models and similar items) (“Goods Materials”) are the property of the Seller or the third party manufacturers of the Goods (as applicable). The Buyer shall not use or seek to register any trade mark or trade name (including any company name) which is identical to, confusingly similar to, or incorporates any trade mark or trade name which the Seller owns or claims rights in anywhere in the world. In the event Buyer supplies designs, specifications or instructions which are incorporated into the goods sold hereunder, or modifies any goods or combines them with other products, Buyer warrants that such goods will not infringe any patent, trademark, copyright or other intellectual property of another. Buyer shall claim no interest in the intellectual property rights, drawings, marks, patents of Seller.

  12. Postponement and Cancellation. No Order shall be cancelled by the Buyer except with the Seller’s prior consent in writing. In the event of the Seller agreeing to the Buyer cancelling all or any part of the Order, the Seller may, without prejudice to any other rights against the Buyer which it may have, require the Buyer to pay a cancellation charge. Any cancellation charge will correspond to the type of contract being cancelled and will be notified in writing to the Buyer within 7 days of its request for cancellation. Contracts for specialized or tailored Goods may be subject to a cancellation charge of 100% of the price of the Order after the Confirmation has been sent. Seller may terminate an Order with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under an Order and such failure continues for 7 days after Buyer's receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

  13. Law. The parties incorporate the Massachusetts Uniform Commercial Code (UCC) trade terms and definitions and exclude the United Nations Convention on the International Sale of Goods. The parties submit to the exclusive personal and exclusive subject matter jurisdiction of the laws and courts of Massachusetts. Seller may exercise all remedies available at law or in equity cumulatively, without election, at any time and combination allowable by law. If Seller believes the financial condition of Buyer does not justify shipment within Terms, Seller may make a written demand for adequate assurance of due performance, including a demand for full or partial payment in advance, suspend its performance until such payment is received or cancel any Order without liability. Late payments are subject to service charges per Article 2 of these Terms.

  14. General. This document represents the integrated agreement of the parties. No modification shall be effected by any receipt or acknowledgement of Seller of any Order containing additional or different terms. If any provision herein shall be held to be invalid, illegal or unenforceable, these Terms shall be construed as if such provision is not contained herein, and such offending provision shall be stricken. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order.

  15. Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with an Order is confidential, solely for the use of performing the Order and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Article. This Article does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.

  16. Anti-Corruption.

    1. Neither party will:

      1. Resort to fraudulent practices in relation to the obtaining or execution of any Order especially by deceit concerning the nature, quality or quantity of the Goods supplied or to be supplied or the methods or processes of manufacture employed;

      2. Offer to give or agree to give to any employee of the other party, any gift or consideration of any kind as an inducement or reward for doing or omitting to do or for having done or omitting to do any act in relation to the obtaining or execution of the Order; and

      3. Commit any offence:

        1. Under the Prevention of Corruption Acts 1889-1916 or US Foreign Corrupt Practices Act of 1977 (FCPA) (15 U. S. C. § 78dd-1, et seq. ) or UK Bribery Act 2010;

        2. Under any law creating offences in respect of fraudulent acts; or

        3. Of defrauding, attempting to defraud or conspiring to defraud.

    2. In the event that any party is in breach of the provisions of this Article, the other party will be entitled to terminate the Order and all Orders in writing with immediate effect.

  17. Trade Prohibitions. The Buyer undertakes to the Seller that the Buyer shall not re-sell or otherwise supply the Goods to a third party which is the subject of any statutory trade prohibition of the United States of America or a member state of the European Union or the United Kingdom or the United Nations (“Sanctioned Third Party”). Without prejudice to the foregoing, if the Seller shall have notice of or reasonable grounds to believe that the Buyer intends to re-sell or otherwise supply the Goods to a Sanctioned Third Party the Seller may upon giving notice thereof to the Buyer refuse to deliver the whole or any part of the Goods and shall have no liability to the Buyer for such refusal. The Seller shall have the right to refuse to supply or complete an Order without liability where it reasonably determines that the Buyer is subject to any of the above sanctions. The party which is exporting, in the case of exports, or the party which is importing, in the case of imports, will be responsible for obtaining all necessary licenses, or other governmental authorizations required in connection with any export, re-export, or imports, as the case may be, under the Order. The parties will co-operate with each other in securing any such licenses or authorizations as may be required and each will provide such statements, certificates and assurances regarding transfer, use, disposition, end-use, source of supply, nationalities and re-export of the Goods as may be required in connection with each party’s application for any required license or governmental authorization. Any government fees or charges in connection with obtaining such licenses or authorizations will be the responsibility of the party which is exporting, in the case of exports, and the party which is importing, in the case of imports, the Goods. The Buyer undertakes will indemnify the Seller for all liabilities, loss, damages, costs and expenses awarded against or incurred by the Seller arising out of in connection with any breach of the Buyer’s obligations contained in this Article. The Buyer agrees to provide the Seller with any information the Seller reasonably requires concerning the destination and use of the Goods, to allow the Seller to comply in full with any relevant export legislation.

  18. Instructions and Health and Safety at Work.

    1. The Buyer shall observe strictly the provisions of the Seller’s instructions in writing regarding use and application of the Goods together with any revisions thereof and shall ensure that any person other than the Buyer who acquires or has access to the Goods is furnished with and observes such instructions.

    2. The Buyer shall be solely responsible for and shall keep the Seller indemnified against all Losses incurred by the Seller in relation to any use of the Goods other than in strict accordance with the Seller’s installation, operating, and maintenance instructions.


    This document was last reviewed October 2018

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