1. GENERAL. These Terms and Conditions ("Terms") apply to all sales and service arrangements between Probo Medical LLC and/or any of its affiliates ("Seller") and any customer, distributor, end-user or other purchaser ("Customer") to which products or services are furnished or offered by Seller. By acceptance of any products, services or service plan from Seller, Customer accepts and agrees to be bound by these Terms and agrees that, unless otherwise agreed in a separate agreement signed by Customer and an authorized of ficer of Seller, these Terms, together with Seller's order acknowledgment or quotation, constitute the entire agreement ("Agreement"), and supersede all other communications and documentation, of the parties with respect to the subject matter hereof. Customer's acceptance of any product or service shall be deemed a waiver of, and Seller hereby expressly rejects, any different or additional terms, preprinted or otherwise, in any purchase order or other documentation furnished by Customer, whether before or after delivery of the applicable product or service. References in this Agreement to "product" means the product(s) purchased by Customer as identified in any order acknowledgement or quotation and references to "service(s)" means any repair, maintenance, warranty or installation services provided by Seller to Customer.
2. UNAVAILABLE PRODUCTS. Customer acknowledges that Seller may quote the same product simultaneously to several customers and that all sales are subject to product availability at the time of Customer's acceptance of a Quotation. If any product becomes unavailable before Customer places an order, Seller will attempt to identify a substitute product to meet Customer's needs or, if a substitute product is not available, Seller will cancel Customer's order and refund any deposit received. This will be Customer's sole remedy with respect to any unavailable product.
3. PAYMENT. All prices published or quoted by Seller may be changed from time to time without notice. All prices for any products or services will be as specified by Seller in its order acknowledgment or quotation to Customer. If no price has been specified or quoted, the price will be Seller's list price in effect at the time of shipment. Quoted prices are based on the assumption that orders of multiple products will be shipped at one time and the shipping date will be not more than thirty (30) days after the date of the quotation. Failure to make timely payment for any product or Service shall constitute a material breach of the Agreement, for which (in addition to other available remedies) Seller may suspend performance under the current Agreement, or under any other agreements with Customer, until all past due amounts are brought current. In the event of a breach of this Agreement, interest shall accrue on all past-due amounts at a rate equal to the lesser of 1.5% per month or the maximum rate permitted by applicable law. Customer shall be responsible for Seller's costs (including but not limited to attorney fees and court costs) relating to collection of past due amounts.
4. TRADE-IN. If Customer is trading-in any equipment ("Trade-In"), by providing such Trade-In, Customer represents, warrants and agrees that: (i) Customer has good and marketable title to such Trade-In, free and clear of all liens; (ii) Title to the Trade-In shall pass from Customer to Seller upon Seller's receipt of the Trade-In; (iii) Customer has removed or de-identified all Protected Health Information ("PHI") from the Trade-In prior to its delivery to Seller and, to the extent Customer has not done so, Customer agrees to reimburse Seller for any out-of-pocket costs incurred by Seller to remove or de-identify PHI from the Trade-In; and (iv) if the condition of the Trade-In is not substantially the same when Seller receives the Trade-In as it was when Seller quoted the Trade-In value, or if Seller does not receive such Trade-In within ten (10) business days of Customer's receipt of the product for which the Trade-In was traded, Seller may reduce the price quoted for such Trade-In or cancel the Trade-In and Customer will pay the adjustment amount within thirty (30) days of receipt of invoice.
5. ORDER CANCELLATION OR MODIFICATION. In the event of cancellation or alteration by Customer of any purchase order, Customer shall pay to Seller: (i) the contract price for any product which shall have been completed and/or shipped prior to receipt of notice of cancellation or alteration; and/or (ii) any costs incurred by Seller in connection with any incomplete portion of the purchase order, plus 20% of such costs as partial liquidated damages. Such costs shall include any cancellation charges, overhead and costs of material in process of purchase for processing of the order.
6. INSTALLATION. Seller may provide (or may have an authorized third party provide) product installation assistance for a separate fee, upon request. Seller will not be responsible for (and Customer hereby releases Seller from) any claims or liability arising out of any such third party's services.
7. DELIVERY. Unless otherwise specified, the products shall be delivered EXW (Incoterms 2010) Seller's facility and all prices are quoted on this basis. Unless otherwise specified, all shipping, insurance, brokerage, license fees, customs, duties, VAT, GST, export and import clearance costs and documentation and other such charges shall be paid by Customer. All stated delivery dates are approximate. If Customer fails to schedule delivery within three (3) months of placing an order, Seller may cancel Customer's order, in which case Customer will forfeit (and Seller will retain) any deposit or pre-paid funds. If Customer requests that delivery be postponed or delayed after the ordered equipment is in the process of being procured by Seller or is ready for delivery, an additional charge of one percent (1%) of the total price shall be assessed for each additional month or part thereof that delivery is postponed to cover storage costs of Seller.
8. TITLE AND RISK OF LOSS. Title to products passes to Customer upon delivery at the point of shipment. Customer is responsible for arranging and paying for insurance against property damage or loss in transit. Seller retains, until Customer performs all of its obligations hereunder, a security interest and right of title in all products. Customer agrees, upon demand by Seller, to promptly execute any security agreement, financing statement, application, registration or other documents necessary and to take any other action deemed necessary or desirable by Seller in order to evidence or perfect Seller's security interest. Customer hereby appoints Seller as its attorney-in-fact to prepare, sign and file or record for the Customer, in Customer's name, any such documents. Customer agrees to keep the products in good order and repair, and to not attempt to transfer an interest in the products, until the purchase price has been paid in full.
9. RETURNS. If Customer notifies Seller within 72 hours of receipt of a non-conforming or defective product, Seller shall have a commercially reasonable amount of time to repair or replace (at Seller's sole option) such product. If Seller is unable to repair or replace the product, it may be returned to Seller for credit upon receipt of a Return Merchandise Authorization number (RMA) from Seller. Customer is responsible for shipping costs, and may be charged a 25% restocking fee, for return of any conforming, non-defective products.
10. REPAIR, REPLACEMENT, MAINTENANCE AND WARRANTY WORK. Any replaced product shall become the property of Seller. Seller is not responsible for any third party charges relating to warranty work that have not been authorized by Seller in writing. If Seller, without express compensation therefor, furnishes Customer with advice or other assistance concerning any product or any system or equipment in which any product may be installed, the furnishing of such advice or assistance will not subject Seller to any liability whether in contract, tort or otherwise.
11. PRE-OWNED PRODUCTS. Customer acknowledges that the products may be previously owned and used and may have received mechanical, electrical and/or cosmetic reconditioning. Customer shall be deemed to have accepted any nonconforming products unless Customer notifies Seller of such nonconformity within three (3) days of delivery.
12. WARRANTY. Seller warrants that, in normal use, the products will be free from defects in material and workmanship for the term specified in this Agreement. Seller assumes no responsibility for any loss or damage resulting from the handling or use of the products by the Customer. THIS WARRANTY AND THE REMEDIES PROVIDED ARE IN LIEU OF ANY OTHER WARRANTY, OBLIGATION OR REMEDY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
13. LIMITATION OF LIABILITY. THE TOTAL LIABILITY OF SELLER FOR ANY AND ALL DAMAGES AND ANY AND ALL CLAIMS, WHETHER FROM BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHER TORT, OR OTHERWISE, ARISING FROM A PRODUCT AND/OR SERVICE IS LIMITED TO THE PRICE PAID TO SELLER FOR THE APPLICABLE PRODUCT OR SERVICE. THIS LIMITATION SHALL NOT, HOWEVER, APPLY TO THIRD PARTY CLAIMS FOR BODILY INJURY OR DEATH CAUSED BY SELLER'S SOLE NEGLIGENCE. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST REVENUES OR PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES. THIS LIMITATION OF LIABILITY AND EXCLUSION OF DAMAGES SHALL APPLY EVEN IF THE LIMITED REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
14. COPYRIGHT PROTECTION. Customer acknowledges that it has purchased products that may contain copyright-protected software. This software may be subject to a licensing agreement placing restrictions on its sale and use. It is Customer's responsibility to ascertain and comply with any such restrictions and to avoid violating U.S. copyright law.
15. REGULATORY COMPLIANCE; EXPORT. Customer agrees to comply with all applicable laws and regulations in connection with its use of the products, including without limitation, U.S. and foreign medical device laws, environmental laws, import/export laws and product safety laws. Customer acknowledges that the products are medical devices regulated by the U.S. Food and Drug Administration and may only be used by or on the order of a licensed health care provider. If Customer re-sells the products to a third party, Customer shall indemnify Seller against any damages or costs incurred by Seller as a result of such sale. Customer assumes sole responsibility for obtaining any required export authorizations in connection with Customer's export of the products.
16. INDEMNITY. Customer shall indemnify Seller and its successors and assigns and each of their respective employees, agents, officers, and directors for any claim or loss directly or indirectly attributable to Customer's acquisition, use, or sale of the products, except to the extent that such claim or loss is caused by Seller's sole negligence or willful misconduct.
17. FORCE MAJEURE; DELAYS. Each party shall be excused from performing its obligations (other than payment obligations) arising from any delay or default caused by events beyond its reasonable control including, but not limited to, acts of God, epidemics, acts of any civil or military authority, fire, floods, war, embargoes, labor disputes, acts of sabotage, riots or civil commotion, accidents, delays of carriers, subcontractors or suppliers, voluntary or mandatory compliance with any government act, regulation or request, shortage of labor, materials or manufacturing facilities. Further, Seller shall not be liable for any loss or damage resulting from delays in receipt of instructions from Customer, changes requested by Customer, or other causes beyond Seller's reasonable control.
18. ASSIGNMENT; BINDING EFFECT. Customer may not assign any of its rights or obligations under this Agreement without the prior written consent of Seller, which consent shall not be unreasonably withheld or delayed so long as any assignee agrees, in writing, to be bound by the terms of this Agreement. Subject to such limitation, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
19. AMENDMENT; WAIVER; VALIDITY; SURVIVAL. This Agreement may be amended only in writing signed by both parties. Any failure to enforce any provision of this Agreement is not a waiver of that provision or any party's right to later enforce that or any other provision. If any provision(s) of this Agreement shall be held to be invalid, illegal or unenforceable, the remaining provisions shall remain in effect. The terms of this Agreement that by their nature are intended to survive its expiration will continue in full force and effect after the expiration or termination of this Agreement.
20. GOVERNING LAW; WAIVER OF JURY. This Agreement shall be governed by and construed under the laws of the State of Indiana, excluding its choice of law rules. Customer consents to the exclusive jurisdiction and venue of Indiana courts located in Indianapolis, Indiana. EACH PARTY EXPRESSLY WAIVES ALL RIGHTS TO A JURY TRIAL IN CONNECTION WITH ANY DISPUTE ARISING UNDER THIS AGREEMENT. Any action for a breach of contract or other claim arising out of the parties' business relationship must be commenced within one year after the cause of action has accrued. FOR REPAIR, MAINTENANCE AND INSTALLATION SERVICES, INCLUDING EXTENDED WARRANTY AND SERVICE PLANS:
21. PRICING, DURATION, SCOPE. The pricing, duration and scope of the services to be provided by Seller are set forth on the initial pages of this Agreement or a separate service plan agreement.
22. EXCLUSION FROM SELLER'S RESPONSIBILITIES. Seller shall have no obligation to service or replace parts arising from any of the following: (i) any intentional or negligent acts or omissions of Customer's employees, agents or invitees; (ii) attempts to repair, service or access the internal components of the products made by persons other than Seller; (iii) use of special attachments or devices not provided by Seller in connection with the products; (iv) misuse of products including, without limitation, use of products for any application or function for which it was not designed; (v) damage resulting from use of operating supplies or consumable parts not approved by Seller; (vi) transducer failure due to events such as cracking from high impact drops, cable rupture from rolling equipment over the cable, and other accidental causes; (vii) transducer failure due to events such as damage or delaminating from cleaning with materials or methods not approved by Seller; (viii) failure or damage caused by any hardware or software not manufactured and installed by Seller that is installed on the produc ts; or (ix) maintenance required due to damage to the products resulting from: (1) transportation by Customer; or (2) causes (other than ordinary use) within the reasonable control of Customer. Seller will not replace products solely for the reason that they have discolored.
23. TERMINATION. At Seller's option, Seller may terminate any applicable service plan without liability immediately upon written notice upon the occurrence of any of (i), (ii), (iii), (iv), (viii) or (ix) above. Further, failure of Customer to perform any duties specified in any addenda hereto shall relieve Seller of its obligations under any applicable service plan. Seller may also terminate any applicable service plan if Customer fails to make payment of fees and/or fails to observe the conditions of this Agreement.