DeFelsko Corporation
Effective Date: Oct. 1, 2026 | Version 2.0
IMPORTANT. READ CAREFULLY BEFORE PLACING AN ORDER. These Terms and Conditions of Sale (these "Terms") govern the sale by DeFelsko Corporation, a New York corporation with a principal place of business at 800 Proctor Avenue, Ogdensburg, New York 13669, USA ("DeFelsko," "we," "us," or "our"), of products and related services to the purchaser (the "Buyer" or "you"). By placing an order with DeFelsko, you agree to these Terms.
"Order" means a purchase order, quotation acceptance, or other request by Buyer to purchase Products or Services that has been accepted by DeFelsko.
"Products" means the hardware instruments, gages, probes, accessories, standards, and other physical goods manufactured or distributed by DeFelsko that are the subject of an Order.
"Services" means calibration, service, repair, training, and other services offered by DeFelsko, excluding software services, which are governed by the DeFelsko End User License Agreement.
"Software" means firmware embedded in the Products and any separately-licensed DeFelsko software applications, including PosiSoft Desktop and the PosiTector mobile application, which are licensed, not sold, under the DeFelsko End User License Agreement.
"Specifications" means the technical specifications, performance parameters, and usage limits set forth in the Product documentation, datasheet, user manual, or other written materials published by DeFelsko with the Product.
An Order is not binding on DeFelsko until DeFelsko accepts it in writing (including by email) or ships the Products. DeFelsko's acceptance of an Order is expressly conditioned on Buyer's acceptance of these Terms. These Terms, together with the terms on DeFelsko's sales invoice, Product documentation, and any other documents expressly referenced, constitute the entire agreement between the parties with respect to the Products and Services and supersede any prior or contemporaneous agreements or representations, whether written or oral.
Any additional, different, or conflicting terms proposed by Buyer, whether in a purchase order, acknowledgement, or other form, are rejected and have no effect. DeFelsko's failure to object to any such terms does not constitute acceptance of them. These Terms may be modified only by a written instrument signed by an authorized representative of DeFelsko.
DeFelsko reserves the right at any time, without liability or prior notice, to (a) modify or discontinue any Product, including changes to specifications, features, materials, or design; (b) substitute Products of substantially equivalent functionality; or (c) discontinue production of any Product. DeFelsko will use commercially reasonable efforts to provide advance notice of material changes or discontinuations where practicable, but such notice is not a condition of DeFelsko’s rights under this paragraph. Orders accepted prior to any such change will be fulfilled in accordance with the specifications in effect at the time of acceptance, subject to availability.
If Buyer does not notify DeFelsko of any objection to these Terms in writing within ten (10) days from the date of DeFelsko's sales invoice, Buyer is deemed to have accepted these Terms.
Prices are those stated in DeFelsko's published price list or in a written quotation accepted by Buyer. Unless otherwise stated in writing, quotations are valid for thirty (30) days from the date of issuance and are subject to change or withdrawal prior to Buyer's acceptance. All prices are in U.S. dollars and exclude taxes, duties, shipping, insurance, and other charges unless expressly stated otherwise.
DeFelsko may correct typographical, clerical, or pricing errors in quotations, invoices, or other communications at any time before shipment. If corrected pricing is materially different from the originally quoted price, Buyer may cancel the affected portion of the Order without penalty by written notice to DeFelsko within five (5) business days after being notified of the correction.
Unless DeFelsko has separately agreed in writing to extend credit terms to Buyer, payment is due in advance of shipment. DeFelsko will reserve Products and prepare them for shipment upon receipt of payment in full. Acceptable methods of prepayment are Visa, MasterCard, American Express, Discover, wire transfer, and ACH. Certified checks and company checks are acceptable but may delay shipment until funds are confirmed.
Credit terms, where granted in DeFelsko's discretion, are stated on DeFelsko's sales invoice and are effective from the date of invoice. Credit terms are typically extended only to established distributors and to other Buyers as DeFelsko approves on a case-by-case basis. DeFelsko may modify or revoke credit terms at any time, including by requiring prepayment for future Orders.
All amounts are denominated in U.S. dollars. Buyer shall make payments free of any withholding, counterclaim, or set-off. If Buyer is located outside the United States, Buyer is responsible for currency conversion and any bank fees associated with payment.
For Buyers extended credit terms, any amount not paid when due shall bear interest from the due date until paid in full at a rate equal to the lesser of (a) one and one-half percent (1.5%) per month, or (b) the maximum rate permitted by applicable law. If Buyer fails to make timely payment, DeFelsko may, in addition to any other remedies available at law or in equity, suspend performance of any other Order, require prepayment for future Orders, revoke credit terms, and recover its reasonable costs of collection, including attorneys' fees.
Prices do not include sales, use, excise, value-added, withholding, import, export, or other taxes, tariffs, duties, or governmental charges of any kind. Where required by law, DeFelsko will collect such taxes, and they will be added to the invoice. Buyer is solely responsible for payment of all such taxes, except for taxes on DeFelsko's net income.
Buyer is responsible for all customs duties, import taxes, tariffs, and similar charges imposed on the Products upon importation into the destination country. If Buyer claims a tax exemption, Buyer shall provide DeFelsko with a valid exemption certificate acceptable to DeFelsko and applicable taxing authorities prior to invoice. If DeFelsko is later assessed any tax, duty, or similar charge that Buyer was responsible for, Buyer shall promptly reimburse DeFelsko.
The applicable Incoterm and risk allocation depends on how shipping is arranged for the specific Order. Unless otherwise agreed in writing, one of the following applies:
Prepay and add through DeFelsko's preferred carrier: Where Buyer elects to have DeFelsko arrange shipping through DeFelsko's preferred carrier on a "prepay and add" basis (shipping charges prepaid by DeFelsko and added to Buyer's invoice), the applicable Incoterm is DAP to the delivery address specified in the Order (Incoterms 2020). Under DAP terms, DeFelsko bears risk of loss or damage to the Products during transit to the named destination, and title and risk pass to Buyer upon arrival at the destination ready for unloading. Buyer remains responsible for import clearance, duties, taxes, unloading, and all costs and risks after arrival at the destination. DeFelsko selects the specific carrier and service level for prepay-and-add shipments in its reasonable discretion unless Buyer specifies otherwise in writing and DeFelsko agrees.
Buyer-arranged carrier with DeFelsko handling export clearance: Where Buyer arranges shipping using its own carrier account but DeFelsko handles U.S. export clearance, the Order is sold FCA Ogdensburg, New York, USA (Incoterms 2020). Title and risk of loss or damage pass to Buyer when the Products are delivered to Buyer's nominated carrier at DeFelsko's facility. Buyer is responsible for transportation, import clearance, insurance, and all related costs and risks from the delivery point onward. DeFelsko is responsible for export clearance from the United States.
Buyer's freight forwarder picking up at DeFelsko's facility: Where Buyer or Buyer's freight forwarder arranges pickup of the Products at DeFelsko's facility and the freight forwarder handles all export formalities, the Order is sold EXW Ogdensburg, New York, USA (Incoterms 2020). Title and risk of loss or damage pass to Buyer when the Products are made available at DeFelsko's facility. Buyer (through its freight forwarder) is responsible for export clearance from the United States, transportation, import clearance, insurance, and all related costs and risks.
DeFelsko will use commercially reasonable efforts to meet stated shipping or delivery dates, but all such dates are estimates, not guarantees. DeFelsko is not liable for any failure to meet an estimated shipping or delivery date. Partial shipments are permitted, and each shipment may be invoiced separately.
Buyer shall inspect Products promptly upon receipt. Any claim for shortage, damage in transit, or non-conformity with the Order visible on inspection must be reported to DeFelsko in writing within fifteen (15) days after receipt, with such details and evidence as DeFelsko may reasonably request. Claims not timely reported are waived.
DeFelsko warrants that, for a period of two (2) years from the date of purchase (or such other period as may be specified in the Product documentation or sales literature for the specific Product), Products manufactured by DeFelsko will be free from defects in workmanship and materials under normal use in accordance with the Specifications.
The foregoing warranty does not apply to, and DeFelsko shall have no obligation with respect to:
(a) Products that have been opened, tampered with, modified, or repaired by anyone other than DeFelsko or a DeFelsko-authorized service center;
(b) damage resulting from misuse, abuse, accident, neglect, improper storage, improper installation, or use outside the Specifications or environmental conditions stated in the Product documentation;
(c) damage resulting from exposure to corrosive environments, excessive temperature, impact, water ingress (beyond stated ingress protection ratings), electrical surge, or other conditions beyond the Specifications;
(d) normal wear of consumable or wear items, including probes, batteries, cables, membranes, sensors approaching end of specified service life, and calibration standards;
(e) cosmetic damage, including scratches, dents, and discoloration, that does not affect Product function;
(f) Products that DeFelsko distributes but does not manufacture. For such resold Products, Buyer's sole warranty, if any, shall be the warranty, if any, provided by the original manufacturer, and DeFelsko provides no warranty of any kind with respect to such Products; and
(g) Software, which is warranted, if at all, solely in accordance with the DeFelsko End User License Agreement.
In the event of a breach of the warranty in Section 7.1, Buyer's sole and exclusive remedy, and DeFelsko's sole obligation, is, at DeFelsko's option, repair or replacement of the non-conforming Product, or refund of the purchase price for the non-conforming Product. To make a warranty claim, Buyer must: (a) obtain a Return Merchandise Authorization ("RO") number from DeFelsko; (b) return the Product with proof of purchase, freight prepaid (DeFelsko does not accept collect or COD shipments); and (c) include a description of the claimed defect. DeFelsko will inspect the returned Product and determine in its sole discretion whether the Product is defective within the meaning of the warranty. Repaired or replaced Products are warranted for the remainder of the original warranty period or ninety (90) days, whichever is longer.
EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH IN THIS SECTION 7, DEFELSKO MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PRODUCTS OR SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND DEFELSKO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. DEFELSKO DOES NOT WARRANT THAT THE PRODUCTS OR SERVICES WILL MEET BUYER'S REQUIREMENTS OR THAT OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE. DEFELSKO DOES NOT WARRANT THAT MEASUREMENT DATA STORED ON OR TRANSMITTED FROM THE PRODUCTS WILL BE PRESERVED, RETAINED, OR RECOVERABLE, AND BUYER IS SOLELY RESPONSIBLE FOR MAINTAINING BACKUP COPIES OF ANY SUCH DATA. BUYER IS SOLELY RESPONSIBLE FOR DETERMINING WHETHER THE PRODUCTS ARE APPROPRIATE FOR BUYER'S INTENDED USE, INCLUDING IN REGULATED, SAFETY-CRITICAL, OR QUALITY-ASSURANCE APPLICATIONS, AND FOR VERIFYING MEASUREMENT RESULTS THROUGH APPROPRIATE PROFESSIONAL JUDGMENT AND QUALITY CONTROL PROCEDURES.
Where Buyer orders calibration, service, repair, training, or other Services from DeFelsko, the following additional terms apply:
(a) Buyer is responsible for shipping Products to DeFelsko freight prepaid and for the risk of loss or damage in transit to DeFelsko.
(b) Turnaround times quoted by DeFelsko are estimates, not guarantees. DeFelsko is not liable for any loss arising from delay in completion of Services.
(c) Calibration Services are warranted only to have been performed using calibrated reference standards traceable to national or international standards. DeFelsko does not warrant that any Product will remain within Specifications after calibration or for any particular period after calibration. Calibration certificates are provided as documentation of the calibration performed and do not constitute a guarantee of regulatory acceptance or compliance with any particular industry, customer, or governmental standard. Buyer is solely responsible for determining whether DeFelsko’s calibration services meet the requirements of any applicable regulatory body, industry standard (including ISO, ASTM, or similar standards), or customer specification.
(d) Where repair Services are performed, any replacement parts used are warranted for one (1) year from the date of return shipment to Buyer.
(e) Where DeFelsko determines that a Product is beyond economical repair, DeFelsko will notify Buyer and, at Buyer's election, return the Product as-is (at Buyer's expense) or dispose of it.
(f) Buyer is solely responsible for backing up any measurement data, settings, or other information stored on Products before sending them to DeFelsko for service. DeFelsko is not responsible for preserving data stored on Products during service, and Products may be wiped, reset, or reformatted as part of the service process. DeFelsko shall have no liability for any loss, corruption, or deletion of data stored on Products sent for service.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DEFELSKO OR ITS DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS, SUPPLIERS, OR AFFILIATES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST REVENUE, LOST PROFITS, LOST BUSINESS, LOST CUSTOMERS, LOSS OF GOODWILL, LOSS OF DATA, BUSINESS INTERRUPTION, OR COST OF COVER, ARISING OUT OF OR RELATING TO THE PRODUCTS, THE SERVICES, OR THESE TERMS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT DEFELSKO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DEFELSKO'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE PRODUCTS, SERVICES, OR THESE TERMS SHALL NOT EXCEED THE PURCHASE PRICE PAID BY BUYER FOR THE SPECIFIC PRODUCT OR SERVICE GIVING RISE TO THE CLAIM.
The limitations in this Section 9 are a fundamental element of the basis of the bargain between the parties, and the prices for the Products and Services reflect these limitations. Some jurisdictions do not allow the exclusion or limitation of certain damages, so some of the above exclusions and limitations may not apply. Nothing in these Terms excludes or limits liability that cannot be excluded or limited under applicable mandatory law.
All intellectual property rights in the Products, the Software, the Specifications, and any documentation, drawings, designs, or other materials provided by DeFelsko are and remain the exclusive property of DeFelsko or its licensors. The sale of Products does not transfer or license any intellectual property rights other than the limited right to use the Products in accordance with the Specifications, and, with respect to Software, the license rights granted in the DeFelsko End User License Agreement.
DeFelsko, PosiTector, PosiSoft, PosiTest, PosiPen, and related names and logos are trademarks of DeFelsko. Buyer shall not remove, alter, or obscure any proprietary notices, trademarks, or labels on the Products or in the documentation.
DeFelsko does not indemnify Buyer against any claim that the Products infringe any third-party intellectual property rights. Buyer assumes all risk associated with any such claim except to the extent directly caused by DeFelsko’s design or manufacturing. DeFelsko shall have no liability for any claim of infringement arising from (a) Buyer’s modification of the Products; (b) combination of the Products with other products, software, or materials not provided by DeFelsko; (c) use of the Products in a manner not contemplated by the Specifications or documentation; or (d) compliance with Buyer’s specifications or instructions.
Certain Products contain embedded firmware or ship with separately-licensed Software. All such Software is licensed, not sold, under the DeFelsko End User License Agreement available at defelsko.com/terms/eula (or its successor URL). By using the Products, Buyer agrees to the terms of that End User License Agreement. Firmware updates delivered through the Software do not extend or renew the warranty period for the Products, and any Product malfunction attributable to a firmware update is subject to the limitations and disclaimers set forth in the End User License Agreement, not the warranty provisions of these Terms.
Some Products contain software components licensed under the GNU General Public License and other open-source licenses. Notices and license texts for such components are included in the Product documentation or in the Software. For Products containing components licensed under the GNU General Public License, Buyer may obtain the complete corresponding source code for a period of three (3) years after the date of DeFelsko's last shipment of the Product, either (a) by downloading the source code from defelsko.com/opensource (or its successor URL), where available, or (b) by sending a written request to GPL Compliance Division, DeFelsko Corporation, 800 Proctor Avenue, Ogdensburg, New York 13669, USA, together with a money order or check for US$10.00 to cover the cost of media and shipping. The request must identify the Product model number and serial number.
The Products and related technical data are subject to the export control laws and regulations of the United States, including the Export Administration Regulations (EAR), and may be subject to the export or import laws of other jurisdictions. Buyer shall comply with all applicable export and import laws and regulations, and shall not export, re-export, transfer, or divert the Products, or any technical data, direct product, or derivative thereof, in violation of such laws. Buyer represents and warrants that:
(a) Buyer is not located in, nor a national or resident of, any country or territory subject to comprehensive U.S. sanctions, and is not otherwise a sanctioned or restricted party under U.S. or other applicable sanctions programs;
(b) Buyer will not sell, transfer, or divert the Products to any such country, territory, or party; and
(c) Buyer will not use the Products for any end use prohibited by applicable export control laws, including any use relating to nuclear, chemical, or biological weapons, or missile technology.
Buyer shall indemnify DeFelsko for any breach of this Section 12.
Buyer shall indemnify, defend, and hold harmless DeFelsko and its officers, directors, employees, agents, and affiliates from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (a) Buyer’s use, resale, or distribution of the Products in violation of these Terms or applicable law; (b) any modification, alteration, or combination of the Products by Buyer or any third party; (c) any representations, warranties, or commitments made by Buyer to third parties that exceed those made by DeFelsko; (d) Buyer’s violation of any applicable law, regulation, or third-party right; or (e) any claim by a third party arising from Buyer’s use of the Products, except to the extent such claim arises solely from a defect in DeFelsko’s design or manufacturing. DeFelsko may, at its option and expense, assume the exclusive defense and control of any matter subject to indemnification by Buyer, in which case Buyer shall cooperate with DeFelsko’s defense.
Buyer shall comply with all applicable anti-bribery and anti-corruption laws, including the U.S. Foreign Corrupt Practices Act (FCPA), the UK Bribery Act 2010, and similar laws of other jurisdictions. Buyer shall not, directly or indirectly, offer, promise, give, or authorize the giving of anything of value to any government official, political party, or other person for the purpose of improperly influencing any act or decision in connection with the Products, the Services, or these Terms. If DeFelsko reasonably believes that Buyer has violated any anti-bribery or anti-corruption law, or that continued performance would expose DeFelsko to liability under such laws, DeFelsko may immediately suspend or terminate any Order or these Terms without liability to Buyer.
DeFelsko shall not be liable for any delay or failure in performance of these Terms to the extent caused by events beyond its reasonable control, including acts of God, natural disasters, fire, flood, earthquake, pandemic or epidemic, war, terrorism, civil unrest, strikes or other labor disputes, governmental action (including export or import restrictions and sanctions), failure or delay of suppliers or subcontractors, shortage of materials, energy, or transportation, cyberattacks (including ransomware and denial-of-service attacks), failures of internet or telecommunications infrastructure, and other similar events. DeFelsko will use commercially reasonable efforts to notify Buyer of any force majeure event that materially affects DeFelsko’s ability to perform, and to provide periodic updates on the expected duration and resolution of the event. In any such event, DeFelsko may, at its option, (a) suspend performance for the duration of the event, (b) extend the time for performance, or (c) cancel all or part of the affected Order. If performance is suspended or delayed for more than ninety (90) days, either party may cancel the affected portion of the Order by written notice without liability, except that Buyer shall pay for Products already delivered and for costs incurred by DeFelsko on custom or non-cancellable Orders.
Once accepted by DeFelsko, Orders may not be cancelled, modified, or rescheduled without DeFelsko's written consent. DeFelsko may, as a condition of consent, charge a reasonable cancellation or restocking fee to cover its costs, including costs incurred for custom-configured Products and non-cancellable supplier commitments.
Products may be returned for reasons other than warranty only with DeFelsko's prior written consent and an RO number. Returned Products must be new, unused, in their original packaging, and in resaleable condition. A restocking fee of up to twenty percent (20%) may apply. Custom-configured, customized, or special-order Products are not returnable.
Each party shall comply with all laws, regulations, and ordinances applicable to its performance under these Terms. Buyer is solely responsible for ensuring that its use, resale, and export of the Products complies with all applicable laws, including safety, environmental, and product registration requirements in the destination jurisdiction.
If Buyer resells or distributes Products to third parties, Buyer shall (a) ensure that such third parties agree to terms no less protective of DeFelsko than these Terms, including the warranty limitations and liability exclusions; (b) require end users of Software to accept the DeFelsko End User License Agreement prior to use; (c) not make any representations, warranties, or guarantees regarding the Products that exceed those expressly made by DeFelsko in these Terms or in the Product documentation; and (d) indemnify and hold harmless DeFelsko from any claims arising from Buyer’s failure to comply with this Section or from any representations, warranties, or commitments made by Buyer to third parties that exceed those made by DeFelsko.
Any non-public information disclosed by DeFelsko to Buyer in connection with the Products or Services, including pricing (other than published list prices), technical information, and business information, is the confidential information of DeFelsko. Buyer shall hold such information in confidence, use it solely in connection with the purpose for which it was disclosed, and not disclose it to any third party without DeFelsko's prior written consent. This obligation survives termination of any Order.
These Terms, and any claim or dispute arising out of or relating to these Terms, the Products, or the Services (whether sounding in contract, tort, or otherwise), are governed by and construed in accordance with the laws of the State of New York, USA, without regard to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or to any Order.
The parties consent to the exclusive jurisdiction and venue of the state courts located in St. Lawrence County, New York, and the United States District Court for the Northern District of New York, for any action or proceeding arising out of or relating to these Terms, except that DeFelsko may seek injunctive or equitable relief in any court of competent jurisdiction, and may bring an action to collect unpaid amounts in any court with jurisdiction over Buyer.
Notwithstanding the foregoing, if Buyer is a consumer resident in a jurisdiction whose laws provide for mandatory consumer protections that cannot be waived by contract, those mandatory protections apply in addition to these Terms, and Buyer may be entitled to bring claims in the courts of its jurisdiction of residence. The jurisdiction-specific terms in the appendices to these Terms describe certain of these rights.
Before initiating any formal legal proceeding, each party shall provide the other with written notice describing the dispute in reasonable detail and a proposed resolution, and the parties shall engage in good-faith discussions for at least thirty (30) days in an effort to resolve the dispute informally. This requirement does not apply to actions for injunctive or equitable relief to protect intellectual property or confidential information, or to actions by DeFelsko to collect unpaid amounts. Class Action Waiver. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BUYER AND DEFELSKO EACH WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND IN ANY FORUM. Buyer may only bring claims against DeFelsko in Buyer’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding.
These Terms are drafted in English. DeFelsko may provide translations of these Terms for convenience. In the event of any conflict or inconsistency between the English version and any translation, the English version prevails, except where prohibited by applicable mandatory law.
These Terms, together with any quotation or sales invoice accepted by Buyer and the DeFelsko End User License Agreement for any Software, constitute the entire agreement between the parties with respect to the Products and Services and supersede all prior or contemporaneous agreements, proposals, and representations.
DeFelsko may update these Terms from time to time. The version of these Terms in effect at the time DeFelsko accepts an Order governs that Order. DeFelsko will publish the current version at defelsko.com/terms/terms-conditions (or a successor URL).
Buyer may not assign or transfer these Terms or any Order, by operation of law or otherwise, without DeFelsko's prior written consent. DeFelsko may assign these Terms without restriction. Any attempted assignment in violation of this Section is void.
If any provision of these Terms is held to be invalid or unenforceable, that provision shall be modified to the minimum extent necessary to make it enforceable, and the remaining provisions shall continue in full force and effect.
No failure or delay by DeFelsko in exercising any right under these Terms operates as a waiver of that right. A waiver is effective only if in writing and signed by an authorized representative of DeFelsko, and applies only to the specific matter waived.
The parties are independent contractors. Nothing in these Terms creates a partnership, joint venture, agency, or employment relationship.
Any provision of these Terms that by its nature should survive termination of an Order survives, including Sections 4 (to the extent of unpaid amounts), 7.4, 9, 10, 12, 12A, 13, 17, 18, 19, and 21.
The parties agree that Orders, invoices, and communications may be transmitted and retained in electronic form, and that electronic signatures and records have the same legal effect as signed originals.
Notices to DeFelsko must be sent to: DeFelsko Corporation, 800 Proctor Avenue, Ogdensburg, New York 13669, USA, Attention: Sales. Notices to Buyer may be sent to the address or email address on Buyer's most recent Order.
Section headings are for convenience only and do not affect interpretation.
Terms for Buyers in the European Economic Area and Switzerland
This Appendix A applies if Buyer is located in the EEA or Switzerland. To the extent of any conflict with the main body of these Terms, this Appendix prevails.
If Buyer is a consumer, nothing in these Terms affects the statutory rights granted to Buyer by the mandatory consumer protection laws of Buyer's country of residence, including statutory warranty rights under Directive (EU) 2019/771 (the Sale of Goods Directive) and, where applicable, the right of withdrawal for distance contracts under Directive 2011/83/EU.
Nothing in these Terms limits or excludes DeFelsko's liability for (a) death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation; (c) defective products under the EU product liability regime as in force from time to time, as implemented in Buyer's jurisdiction; or (d) any other liability that cannot be limited or excluded as a matter of applicable mandatory law. The limitations in Section 9 apply to the maximum extent permitted by applicable law.
If Buyer is a consumer, Section 18 does not deprive Buyer of protection afforded by provisions that cannot be derogated from by agreement under the law of Buyer's country of habitual residence. Buyer may bring proceedings in the courts of Buyer's jurisdiction of residence.
DeFelsko is not obligated or willing to participate in consumer arbitration board proceedings.
Terms for Buyers in the United Kingdom
This Appendix B applies if Buyer is located in the United Kingdom. To the extent of any conflict with the main body of these Terms, this Appendix prevails.
If Buyer is a consumer, Buyer has statutory rights under the Consumer Rights Act 2015 that Products be of satisfactory quality, fit for purpose, and as described. Nothing in these Terms affects those statutory rights.
Nothing in these Terms limits or excludes DeFelsko's liability for (a) death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation; or (c) any other liability that cannot be limited or excluded as a matter of English law. Subject to the foregoing, the limitations in Section 9 apply to the maximum extent permitted by applicable law.
If Buyer is a consumer resident in the United Kingdom, the mandatory consumer protection laws of the United Kingdom apply notwithstanding Section 18, and Buyer may bring any claim in the courts of the United Kingdom.
Terms for Buyers in Canada
This Appendix C applies if Buyer is located in Canada. To the extent of any conflict with the main body of these Terms, this Appendix prevails.
If Buyer is a resident of the Province of Quebec:
(a) Nothing in these Terms limits or excludes rights conferred on Buyer by the Quebec Consumer Protection Act or other applicable mandatory Quebec law, including the right to participate in class proceedings.
(b) Buyer has the right to receive these Terms and related documents in French where required by applicable law. Where applicable law requires the French version to be provided before an English-language election, Buyer may elect to be bound by the English version only after receiving the French version and expressly requesting English. Such an election does not waive any non-waivable right to receive communications in French. Lorsque la loi applicable exige la remise préalable de la version française, l'Acheteur ne peut choisir d'être lié par la version anglaise qu'après avoir reçu la version française et expressément demandé l'anglais. Ce choix ne constitue pas une renonciation à un droit auquel il ne peut être renoncé de recevoir des communications en français.
Nothing in these Terms limits or excludes liability for fraud, willful misconduct, or any other liability that cannot be excluded or limited under applicable Canadian law. Subject to the foregoing, the limitations in Section 9 apply to the maximum extent permitted by applicable law.
If Buyer is a consumer resident in Canada, the mandatory consumer protection laws of Buyer's province of residence apply notwithstanding Section 18, and Buyer may bring proceedings in the courts of that province.
Terms for Buyers in Australia
This Appendix D applies if Buyer is located in Australia. To the extent of any conflict with the main body of these Terms, this Appendix prevails.
Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled: to cancel your service contract with us; and to a refund for the unused portion, or to compensation for its reduced value. You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
Nothing in these Terms excludes, restricts, or modifies any consumer guarantee, right, or remedy conferred on Buyer by the Australian Consumer Law or any other applicable law that cannot be lawfully excluded, restricted, or modified. The limitations in Section 9 apply only to the extent permitted by the Australian Consumer Law and other applicable law.
If Buyer is a consumer resident in Australia, Buyer may bring any claim in the courts of Australia, and the laws of Buyer's state or territory of residence apply notwithstanding Section 18 to the extent those laws provide mandatory consumer protections.