GenX Medical LLC Standard Terms and Conditions of Sale

 GenX Medical LLC Standard Terms and Conditions of Sale

1.  INTERPRETATION.  In these terms and conditions “the Company” means GenX  Medical, LLC, the “Buyer” means the party with whom the Company is  contracting and “goods”, where the context so permits and requires,  means the goods and/or services which the Company contracts to supply  and/or to provide and “Conditions” means the following terms and  conditions of sale.

2.THESE CONDITIONS APPLY.  Unless the Company  shall otherwise expressly agree in writing, every offer, tender,  quotation, acceptance and contract for the sale or supply of goods,  including services ancillary thereto, by the Company is made subject to  these conditions and all other terms and conditions proposed by the  Buyer are expressly excluded. No modification of these terms and  conditions shall be effective unless reduced to writing and signed by a  person duly authorized by the Company. No binding contract shall be  created by the acceptance of a quotation or offer made by the Company  until notice of acceptance of the order in writing signed by a person  duly authorized shall have been given to the Company by the Buyer.

3.  PRICES.  All prices are FOB Company’s facility unless otherwise  stated.  Prices quoted by the Company excludes sales, use, excise or  other taxes, customs duties, insurance, and any other fees or charges  imposed by any governmental authority, all of which will be paid by  Buyer in addition to the price quoted. If the Company is required to pay  any such tax, fee, or charge, the Company may invoice Buyer for the  amount paid. Buyer shall pay any required withholdings on the purchase  price so that the net amount received by the Company is the full  purchase price quoted.  

4. INVOICING AND PAYMENT

4.1 The  Company will be entitled to invoice the Buyer on the date on which the  goods are dispatched. If the Company agrees at the request of the Buyer  to defer delivery of any goods or suspends delivery of any goods in  accordance with condition 4.2 or extends the delivery in accordance with  condition 4.2, the Company will be entitled to invoice the Buyer for  such goods on the date on which they would otherwise have been due for  dispatch.

4.2 Unless the Company notifies the Buyer otherwise,  payment is due, whether or not title to the goods has passed to the  Buyer, net 30 days.

4.3 Unless otherwise expressly agreed in  writing by the Company, payment in full without discount shall be made  in U.S. Dollars and the Buyer shall not be entitled for any reason to  withhold payment of the amount shown on the invoice as due.

4.4  Payment is made and received only at the time when cash is handed to a  duly authorized representative of the Company who issues an official  written receipt therefore, or when any check or draft sent or delivered  to the Company is cleared and/or the Company’s bank account credited  with the relevant amount, and not at any earlier time.

4.5 The  Company reserves the right to charge interest at the rate of one and  one-half percent (1.5%) per month, or portion thereof, compounded  monthly, or the maximum amount permitted by law, whichever is less, on  all overdue accounts from the due date until the date of actual payment.

4.6  Failure to make payment on due date shall constitute a breach of  contract and without prejudice to any other rights which it may have  against the Buyer the Company may suspend all further deliveries of  goods under all contracts then in existence between the Company and the  Buyer until payment of all sums payable by the Buyer under that contract  and of all other sums then due and payable to the Company by the Buyer  has been made in full, and/or may terminate the contract.

5. DELIVERY AND INSPECTION

5.1  Although the Company will make every effort to deliver on the agreed  date, time for delivery is not of the essence of the contract. Any  quoted delivery date or period is a business estimate only. The Company  shall be not liable for any loss or damage whatsoever caused by delayed  delivery of goods. Delay in delivery will not entitle the Buyer to  rescind the contract.

5.2 If any carrier of any consignment of  goods receives an unqualified receipt therefore by or on behalf of the  Buyer, the Company shall have no liability to the Buyer for loss of or  damage in transit to such goods or for mis-delivery or non-delivery  thereof.

5.3 The Company reserves the right to provide the quantity ordered +/- 10% and invoice Buyer for the amount shipped. 

5.4  Buyer will inspect the goods promptly upon receipt and notify the  Company in writing within seven (7) days of such receipt if any items or  components were not included in the shipment. Failure to give such  notice will constitute a waiver of any claims of shortages.

6. FAILURE TO TAKE DELIVERY

6.1  If goods are ready for delivery and the Buyer fails to take delivery at  the time required by the contract the Company shall be entitled to  invoice such goods forthwith; and to charge at rates giving an economic  return for the handling and storage of such goods, and for their  insurance, from the date of invoice to the date when the Buyer takes  delivery or the Company disposes of the same.

6.2 If the Buyer  fails to take delivery within thirty days of date of invoice it shall be  deemed to have repudiated the contract and without prejudice to any  other right which it may have against the Buyer, the Company shall be  entitled to resell the goods.

7. WARRANTY AGAINST DEFECTS

7.1  The Company warrants that at the time when they are ready to leave the  premises of the Company and for 3 months thereafter, all goods  correspond with their specification and are free from defect in material  and workmanship, provided that the Company’s liability under this  warranty shall be limited to either, at the Company’s discretion,  replacement or repair of goods free of cost to the Buyer or payment by  the Company to the Buyer of an amount not exceeding the original  purchase price of the goods in respect of which notice of the defect is  given to the Company within ten (10) days of the date of invoice and  which are returned to the Company, within seven days of the Buyer first  becoming aware of the defect, with freight prepaid.

7.2 The  warranty contained in condition 7.1 above is given in lieu of and shall  be deemed to exclude all other warranties and conditions whether express  or implied and whether arising by common law, statute or otherwise  other than relating to title to the goods.

7.3 The warranty  contained in condition 7.1 above does not apply to and the Company  accepts no responsibility for defects in goods which have been tested in  accordance with the Buyer’s express contractual requirements and have  satisfied such tests.

7.4 Unless otherwise expressly agreed by  the Company the warranty contained in condition 7.1 does not apply to  and the Company accepts no responsibility for:

7.4.1 damage occurring in transit;

7.4.2  goods which have suffered or been subject to use otherwise than in  accordance with the instructions or advice of the Company or undue wear  and tear, accident, misuse, improper application, neglect or  overloading; or

7.4.3 goods which have not been operated and  maintained in accordance with written operation and maintenance  instructions supplied by the Company.

7.5 The Buyer shall not  rely upon any representation concerning any goods supplied unless the  same shall have been made by a person authorized by the Company in  writing.  All warranties regarding the goods are contained in this  condition.

7.6 THE COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES  OF ANY KIND REGARDING THE PRODUCTS TO BUYER OR ANY OTHER PERSON OR  ENTITY, AND ALL OTHER WARRANTIES OF ANY KIND, INCLUDING WITHOUT  LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A  PARTICULAR PURPOSE, AND ANY WARRANTIES OTHERWISE IMPLIED BY A COURSE OF  DEALING OR PERFORMANCE OR USAGE OF TRADE, ARE HEREBY DISCLAIMED AND  EXCLUDED TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW.  

8. RISK. 

8.1 Risk in the contract goods shall pass to the Buyer on delivery FOB the Company’s facility.

9. LIMITATION OF LIABILITY

9.1  Except as otherwise expressly provided in these conditions, the Company  shall be under no liability in respect of the quality, condition or  description of the goods or for loss or damage, and in no event shall be  liable for any special, incidental, indirect, exemplary or punitive  damages, or consequential damages (such as lost profits) EVEN IF THE  COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER  UNDER A CONTRACT, TORT, WARRANTY, OR OTHER LEGAL THEORY. IN NO EVENT  WILL THE COMPANY’S TOTAL LIABILITY TO PURCHASER RELATING TO THE PRODUCT  OR ITS USE EXCEED THE AMOUNT PURCHASER PAYS THE COMPANY FOR THE  PRODUCT. 

10. INDEMNITY BY BUYER.  The Buyer shall indemnify the  Company against all liabilities costs and expenses which the Company may  incur by reason of any claim by any subsequent purchaser or user of the  goods or of any product incorporating the goods or by reason of any  claim by any relative or dependant of such purchaser or user arising  from any defect or alleged defect in the goods or in such product except  and to the extent that such liabilities, costs and expenses arise from a  breach by the Company of its obligations under these conditions, in  which event the Company’s liability shall be limited as provided herein.

11. RETURNED GOODS

11.1  No contract for goods ordered may be cancelled by the Buyer, and except  as otherwise provided in these conditions, no goods may be returned  without the prior written consent of the Company.

11.2 If the  Company agrees to accept return of any goods the Buyer shall be obliged  to effect the return of such goods in good condition and at its own risk  and cost, and such returned goods shall be returned in packaging which  are undamaged and which have not been opened since their dispatch by the  Company.

12. HEALTH AND SAFETY

12.1 The Company is not  responsible for any product sold, and the Buyer must make its own  determinations of its suitability and usability.  The Company takes no  responsibly of the functionality of the design, and Buyer is responsible  to conduct proper testing.

12.2 The Buyer shall be solely  responsible for biocompatibility of the product and should conduct their  own testing if necessary.

13. EXPORT.  In the case of any goods  to be exported from the U.S., the Buyer is responsible for obtaining  import authorizations, and the Company shall have no obligation to  dispatch the goods unless and until the Buyer has provided all  documentation and information necessary for export and import of the  goods to be effected.

14. TECHNICAL DATA.  While every effort has  been made to ensure the accuracy of any technical data provided to the  Buyer, the Company accepts no liability arising from errors or omissions  therein.  Illustrations, photographs, weights, dimensions and  descriptions are illustrative and for general guidance and do not form  the basis of any sale by description. Performance figures quoted by the  Company for its products are similarly illustrative and for general  guidance, are based upon experience and are not warranted.

15.  FORCE MAJEURE.  The Company shall not be liable for failure to comply  with any of its obligations under the contract in the event that  compliance is delayed or prevented by any cause whatsoever beyond its  reasonable control, including, but not limited to, war, riot, strike,  lock-out, act of God, storm, fire, earthquake, explosion, flood,  confiscation, action of any government or government agency or  shortage.  Deliveries or other performance may be suspended for an  appropriate period of time or cancelled by the Company upon written  notice to Buyer in the event of a Force Majeure.  

16. NOTICE.   Any notice under the contract shall be in writing sent by first class  prepaid postage or facsimile transmission confirmed by first class  prepaid postage. Any notice to the Company shall be addressed to the  Company at its registered office and to the Buyer at the address  notified by the Buyer to the Company for that purpose or if none is so  notified to the address of the Buyer last known to the Company.

17.  GOVERNING LAW; VENUE.  These conditions and the contract shall be  subject to and construed in accordance with U.S. law and the law of the  state of Tennessee, and the parties hereby agree to accept the exclusive  jurisdiction of the state and federal courts located in Hamilton  County, Tennessee, U.S. in all matters connected therewith or relating  thereto.

18. Proprietary Rights. Unless otherwise specifically  agreed in writing and signed by both parties, the Company retains all  proprietary rights in and to the manufacturing process and in any  modifications or improvements to the manufacturing process that may  result from suggestions or input from Buyer, including but not limited  to rights under patent, copyright, trademark and trade secret laws, in  all jurisdictions.

19. Confidentiality. If any Confidential  Information of the Company is disclosed to Buyer in the course of  providing Services to Buyer or by the Company rendering technical  support or otherwise, Buyer agrees that it will (i) use the Confidential  Information only in connection with its internal use of the goods, and  (ii) hold the Confidential Information in confidence and not disclose it  to any third party. As used above, the term “Confidential Information”  means information that is designated by the Company as confidential, or  that should otherwise be understood to be confidential due to its  nature. Confidential Information does not, however, include information  that (i) is or becomes public knowledge without the fault of Buyer, (ii)  Buyer rightfully obtains from a third party without restriction on use  or disclosure, (iii) Buyer can document was independently developed by  it without use or access to the Company’s Confidential Information, or  (iv) Buyer can document was previously known to it prior to receipt of  the Company’s Confidential Information. 

20. Export Regulations;  Anti-boycott Laws; Foreign Corrupt Practices Act. Buyer acknowledges and  agrees that the Products may be subject to US export control laws and  regulations, including without limitation, Export Administration  Regulations and International Traffic in Arms Regulations.  Buyer shall  not, and shall not permit any third parties to, directly or indirectly,  export, re-export or release any Products to any jurisdiction or country  to which, or any party to whom, the export, re-export or release of any  Products is prohibited by applicable federal or foreign law, regulation  or rule. Buyer shall be responsible for any breach of this Section by  its, and its successors’ and assigns’, parent, affiliates, employees,  officers, directors, equity holders, customers, agents, distributors,  resellers or vendors. Buyer shall comply with all applicable federal and  foreign laws, regulations and rules, and complete all required  undertakings (including without limitation, by obtaining any necessary  export license or other governmental approvals), prior to exporting,  re-exporting or releasing any Products. Buyer will execute and deliver  to the Company such letters of assurance as may be required under  applicable export regulations.  Buyer shall comply with all US  antiboycott laws and regulations, including, but not limited to, the  Export Administration Act and the Internal Revenue Code (collectively,  “Antiboycott Laws”). Buyer shall, and shall cause its Representatives  to, comply with the Foreign Corrupt Practices Act of 1977, as amended  (“FCPA”), including maintaining and complying with all policies and  procedures to ensure compliance with the FCPA.  Buyer shall indemnify  and hold harmless the Company against any loss related to Buyer’s  failure to comply with this Section.  

21. Security Interest. The  Company is hereby granted a security interest in any goods produced by  the Company on behalf of Buyer, and the proceeds thereof, to secure  payment of the purchase price and any other amounts that become due.