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These General Terms and Conditions of Sale for Products (“Sales Terms”) apply to the sale of products (“Products”) of Excel Scientific, LLC, a Delaware limited liability company (“Excel”) to customer (“Customer”).  Excel’s offer to sell Products to Customer, and Excel’s acknowledgment of any purchase order or other Customer document (“Order”) is expressly limited to, and expressly conditioned on Customer’s acceptance of these Sales Terms.  The applicability of terms contained in Customer’s Order is limited to the identification and the quantity of Products ordered.  Excel objects to and rejects all other Customer terms, in any form, that are different from or additional to these Sales Terms.

  1. Pricing, Freight, Payment, Shipping.  
    1. Product prices are as listed in the applicable Excel price list as of the date Excel processes Customer’s Order.  For Orders specifying future-dated shipments, Excel has the sole discretion to charge the price in effect on the date of the shipment.  Standard payment terms are net 30 days from the Excel invoice date, unless a different period is stated on the invoice.  Customer may not make or take any deduction, set-off, or other adjustment without Excel’s prior written approval.  Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, whichever is higher, calculated daily and compounded monthly.  Customer shall reimburse Excel for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.  In addition to all other remedies available under these Sales Terms or at law (which Excel does not waive by the exercise of any rights hereunder), Excel shall be entitled to suspend the delivery of any Products if Customer fails to pay any amounts when due hereunder and such failure continues for 10 days following written notice thereof.
    2. Products are shipped F.O.B. point of shipment.  Title and risk of loss transfers to the Customer upon delivery to the carrier.  If Excel pays freight on the Order Excel may designate the means of transportation and routing.  If Customer requires alternative means of shipment, Customer will pay any resulting costs.  Lead times are as stated by Excel and Products may be placed on backorder at Excel’s discretion.  Where Product availability is limited for any reason, Excel may fill orders or otherwise allocate Products in any manner it deems appropriate.  Under no circumstances will Excel be liable for failure to ship, or for Customer’s failure to receive, Products by a certain date.  Excel may require prepayment of any Order.  Any credit extended to Customer is done at Excel’s discretion and subject to Excel credit requirements.  Customer must keep its account current at all times.  Excel may withhold shipments, payments, or other benefits, and/or assess late fees and interest on past due amounts until the account balance is current.
    3. The cut-off period for reporting fulfillment discrepancies (shortages, damages, etc.) is 15 working days from date received.
  2. Compliance.  Excel will manufacture and sell the Products in compliance with the federal, state, and local laws applicable to each Product.  Customer will comply with the federal, state, and local laws applicable to the handling, transportation, storage, use, processing, disposal, distribution, sale, and resale of Products and to any of Customer’s products that contain or are made by using Products.  Under no circumstances will either party offer or make any payment or give anything of value to another person or entity where such payment or action would violate an applicable law or regulation, including, but not limited to, any applicable anti-bribery, anti-corruption, or anti-kickback law.
  3. Product Information, Selection, and Use.  Excel may provide Product information, including technical information, specifications, recommendations, literature, and other materials (collectively “Product Information”) for Customer’s convenience in Customer’s selection of Products.  The accuracy or completeness of Product Information is not guaranteed and is subject to change without notice.  No license under any Excel or third party intellectual property rights is granted or implied with this Product Information.  Customer is solely responsible for evaluating and selecting Products and determining whether each Product is fit for a particular purpose and suitable for Customer’s use and method of application.  Products are not manufactured to any Customer requirements or specifications unless expressly agreed to in writing by Excel.  Products that are sold for Customer’s use or consumption may not be repackaged, resold, or redistributed in any manner without Excel’s prior written consent.
  4. Warranty, Disclaimer, Limited Remedy.  Unless a different warranty is expressly specified on the applicable Product Information or Product packaging (in which case such warranty governs), Excel warrants that each Product meets Excel’s applicable Product specifications at the time Excel ships each Product.  Excel MAKES NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ARISING OUT OF A COURSE OF DEALING, PERFORMANCE, CUSTOM, OR USAGE OF TRADE.  IF A PRODUCT DOES NOT CONFORM TO THIS WARRANTY, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IS, AT EXCEL’S OPTION, REPAIR OR REPLACEMENT OF THE NONCONFORMING PRODUCT.  CUSTOMER HAS NO RIGHT TO RETURN PRODUCTS PURCHASED UNDER THESE SALES TERMS TO EXCEL NOR TO SEEK ANY REFUND RELATING THERETO.  Excel has no obligation under this warranty with respect to Products that are modified or damaged by Customer, including through misapplication, misuse, abuse, accident, neglect, or mishandling.  Customer must notify Excel within 3 days after receipt that it believes a Product is non-conforming and, thereafter, cooperate with Excel’s investigation of such claim, otherwise Customer waives any right or claim with respect to such non-conformance.  
  5. Limitation of Liability.  Except for the limited remedy above, and except to the extent prohibited by law, Excel is not liable for direct, indirect, incidental, special, punitive, or consequential damages (including, but not limited to, lost profits, revenue, business, opportunity, or goodwill) that directly or indirectly arise from or relate to Products, regardless of the legal or equitable theory asserted, including, but not limited to, warranty, contract, negligence, fraud, or strict liability.
  6. Export Control.  Products are sold for use or consumption within the United States only.  If Excel authorizes Customer in writing to export Products outside of the U.S., Customer (a) assumes all responsibility for such Products, (b) will comply with all laws and regulations relating to the export and sale of Products outside the U.S., and (c) will adhere to all applicable Excel policies and procedures relating to the export of Products as a condition to purchase and export.
  7. Order Cancellation.  Customer may cancel an Order only with Excel’s written consent.  In the event of an approved cancellation, and where Excel has incurred costs and expenses that cannot reasonably be recovered through sale of the Products to another person or entity, Customer will pay Excel for all such costs and expenses, which may include costs of related raw materials, packaging, and other items dedicated to Products.  Excel may cancel an Order without obligation or liability upon notice to Customer.
  8. Taxes.  Product prices do not include any applicable taxes, tariffs, duties, fees, or charges of any type imposed by any governmental authority (“Transfer Taxes”).  Customer shall be responsible for all such Transfer Taxes.
  9. Effect of Other Agreements, Terms.  Where Excel and Customer have a specific agreement for the sale or supply of Products or an individual Excel business unit has issued specific terms and conditions for specific products, that agreement or the business unit specific terms and conditions (collectively “Excel Agreement Terms”) will control, as to these Sales Terms, to the extent that the Excel Agreement Terms are in addition to or conflict with these Sales Terms.  By ordering Product using an Order, Customer agrees to be bound by all terms and conditions, program requirements, and other policies set forth in the applicable Excel price pages, order forms, or order systems.
  10. Governing Law, Dispute Resolution.  Delaware law, without regard to conflicts of laws principles, shall exclusively govern Excel’s sale of Products to Customer.  Except where Excel files a claim or action to collect unpaid amounts due from Customer, all claims and disputes arising from or relating to these Sales Terms, any Order, or the Products must be resolved exclusively through the following dispute resolution processes: (a) good faith negotiations between duly authorized representatives of each party conducted within 30 days of a request for negotiations; and (b) then, litigation.  The state or federal court located within Los Angeles County, California, shall be the sole and exclusive jurisdiction and venue for any litigation between Customer and Excel.  Customer agrees to submit to the jurisdiction of such court in the event of any litigation.
  11. Waiver.  No waiver by Excel of any of the provisions of these Sales Terms is effective unless explicitly set forth in writing and signed by Excel.  No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Sales Terms operates, or may be construed, as a waiver thereof.  No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
  12. Confidential Information.  All non-public, confidential or proprietary information of Excel, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Excel to Customer, 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 these Sales Terms is confidential, solely for the use of performing these Sales Terms and may not be disclosed or copied unless authorized in advance by Excel in writing.  Upon Excel’s request, Customer shall promptly return all documents and other materials received from Excel.  Excel shall be entitled to injunctive relief for any violation of this Section.  This Section 12 does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.
  13. Force Majeure.  No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached these Sales Terms, for any failure or delay in fulfilling or performing any term of these Sales Terms (except for any obligations of Customer to make payments to Excel hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, pandemics or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions (including, but not limited to, those relating to pandemics or other health crisis); (e) embargoes or blockades in effect on or after the date of these Sales Terms; and (f) national or regional emergency; and (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of the Impacted Party.  The Impacted Party shall give notice within 30 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue.  The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.  The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.  In the event that the Impacted Party’s failure or delay remains uncured for a period of 30 consecutive days following written notice given by it under this Section 13, either party may thereafter terminate these Sales Terms upon 10 days’ written notice.
  14. Assignment.  Customer shall not assign any of its rights or delegate any of its obligations under these Sales Terms without the prior written consent of Excel.  Any purported assignment or delegation in violation of this Section is null and void.  No assignment or delegation relieves Customer of any of its obligations under these Sales Terms.
  15. Relationship of the Parties.  The relationship between the parties is that of independent contractors.  Nothing contained in these Sales Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
  16. Severability.  If any term or provision of these Sales Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Sales Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
  17. No Third-Party Beneficiaries.  These Sales Terms is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Sales Terms.
  18. Changes.  Excel reserves the right to change these Sales Terms at any time without notice.