STANDARD TERMS AND CONDITIONS (SALE OF GOODS)

These STANDARD terms and conditions (sale of goods) (“Terms and Conditions”) are the only terms which govern the SALE of the goods (“PRODUCTS”) by endoscopy development company AND/or its affiliate as listed on the related order (“SELLER”) from the BUYER named on the first page (“BUYER”) of the related ORDER (DEFINED BELOW) AND ARE INCORPORATED INTO THE TERMS OF SUCH ORDER BY THIS REFERENCE.

 

  1. Product; Specifications. From time to time, Buyer may provide Seller with purchase orders (the “Purchase Order(s)”) that set forth the description of the Product(s) ordered, specifications, volume, pricing, requested delivery dates, and any other specific instructions that may be agreed in advance between the parties. These Terms and Conditions shall apply to all such Purchase Orders. Additionally, Buyer may establish a Purchase Order with requested partial shipments, which will cover a requested schedule of partial releases of the volume ordered over a set time period and Buyer will place releases (each a “Release”) against this total volume. By issuing a Purchase Order or Release (collectively with these Terms and Conditions; an “Order”) to Seller, Buyer makes an offer to purchase Product meeting the requirements and quality standards set forth in the related Order (the “Specifications”) on a non-exclusive basis, pursuant to the terms of the Order, including these Terms and Conditions. Seller shall confirm to Buyer the receipt of the Order issued hereunder (each, an “Acknowledgement”) within three (3) business days following Seller’s receipt thereof in written form via facsimile or e-mail. Each Acknowledgement shall reference Buyer’s Order number and confirm acceptance of the Order or advise Buyer of Seller’s rejection of such Order. Once accepted by Seller, any changes to the Order must be agreed to in writing by both parties (including but not limited to email), except that Buyer may cancel or change quantities on Orders under the conditions set forth herein. A copy of these Terms and Conditions has been provided to Seller, and Seller, by submitting any Order, acknowledges and agrees to these Terms and Conditions without the need for any additional action on the part of either Buyer or Seller.
  2. Quantity. Unless otherwise agreed to in writing, no variation greater than + 5% in the quantities specified in Orders will be accepted. Buyer may return goods shipped in excess of the +5% of the quantity designated in the Order at Seller’s expense or withhold payment on the excess Product shipped until the due date that would have applied for such shipment if it had been delivered on time. Buyer shall have no obligation to issue any Orders or to purchase any minimum quantity or dollar amount of any Product under these Terms and Conditions.
  3. Changes. With respect to any unfilled Orders, Buyer, by written notice to Seller at least two (2) weeks prior to the delivery date requested in the applicable Order, may reduce any quantity of Products to be supplied under an Order, and the Order price will be equitably reduced, or Buyer may order an increase in Products to be supplied at the unit prices stated under any unfilled Order, taking into account any quantity discounts set out in the Order. In case of an increase in the quantity of Products, the parties shall mutually agree on an extension of the delivery date requested in the applicable Order and impact, if any, on any future scheduled Releases.
  4. Price. The price of the Product is as quoted by Seller (“Price”) and no other price stated on the face of the Order shall have any effect. Unless otherwise specified in the Order, the Price stated excludes any taxes, duties, non-standard packaging, transportation and insurance. The parties agree to cooperate in a reasonable manner in order to minimize all sales tax and to assist in obtaining resale certificates whenever possible so that taxes would not be incurred. Taxes shall be separately stated on all invoices. No increase in the Price is effective with respect to any unfilled Orders previously accepted by Seller.
  5. Delivery; Risk of Loss; Title. Seller may, in its sole discretion, without liability or penalty, make partial shipment of Products to Buyer. Seller will deliver Products Ex Works Seller’s Earth City Facility (Incoterms® 2010) unless otherwise provided in a Quote, subject to the terms and conditions set forth in these Terms and Conditions. Risk of loss and title to Products shall pass to Buyer upon delivery of Product by Seller in accordance with shipping terms.
  6. Delivery Schedule. Scheduled delivery dates are estimates only. Subject to Seller’s standard lead time by Product, Seller will use commercially reasonable efforts to comply with the requested delivery dates established by the Order and related Releases, if applicable, or as otherwise agreed, from time to time, in writing between the parties.
  7. Quality. Seller shall maintain quality control for production of Products in accordance with industry standards that assure that Seller meets Buyer’s reasonable quality expectations as well as the Specifications. Seller shall provide to Buyer, on a timely basis, any required Product certifications and quality test data (in a format, typically via secured electronic transmission, and using test protocol acceptable to Buyer) as required by the Specifications, as applicable.
  8. Inspection and Testing. Buyer has the right to inspect the Products within a reasonable period after delivery not later than five (5) business days after delivery in accordance with the shipping terms. Buyer, at its sole option, may inspect all or a sample of the Products, and may reject all or any portion of the Products if it determines the Products are defective in material, workmanship, or design, or not in conformity with the Specifications or otherwise nonconforming with the requirements of the Order, subject to these Terms and Conditions (along with Products not meeting warranty requirements under Section 9, collectively, “Defective Product”). If Buyer rejects any portion of the Products, Seller, at its option, may (a) rescind the Order in its entirety and refund any respective amounts paid in respect thereto; or (b) provide replacement of the rejected Products.
  9. Warranty. In addition to Buyer’s inspection rights pursuant to Section 9 above, Seller warrants that the Product will (a) conform to the Specifications and (b) be free from defects in material (other than materials supplied by Buyer or supplied by vendors required by Buyer) and workmanship. In the event that Buyer determines that any delivery hereunder includes Defective Product, Buyer will so notify Seller and, if requested, provide to Seller reasonable documentation to support its determination, and Seller, at its option may: (a) if Seller has a supply of non-defective Product sufficient to replace the Defective Product, provide such non-defective Product to Buyer at Seller’s entire expense regarding freight; (b) if Seller does not have a supply of non-defective Product sufficient to replace the Defective Product, Seller shall reimburse Buyer for any amounts previously paid for such Defective Product. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN THIS SECTION 9, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER PERSON ON SELLER’S BEHALF. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY PRODUCTS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY SELLER, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE PRODUCTS.
  10. Payment. Buyer shall pay all invoiced amounts due to Seller within thirty (30) days after the date of invoice. There is no right of set-off at any time of any amount owing to Buyer by Seller under any Order.
  11. General Provisions. Buyer acknowledges that the PRODUCTS are to be used for Repair (replacement of broken or worn parts) of OEM (Original Equipment Manufacturer) devices and not for Reconstruction of OEM devices. Buyer further acknowledges that any patented OEM device being repaired is not subject to a limited license from the OEM to the original purchaser.
  12. Entire Agreement. Any other documents referred to in these Terms and Conditions are fully incorporated herein by reference and form an integral part of any Order. In the event of any inconsistency or conflict between the terms in the body of these Terms and Conditions and any other documents, including the terms of the front page of any Order, or any applicable programs or policies, the terms regarding the Product Specifications and quantity set on the front page of any Order shall take precedence over the body of these Terms and Conditions and the terms set forth in the body of these Terms and Conditions shall take precedence over any attachments or other documents, or programs or policies applicable to Seller. Seller expressly rejects any additional, inconsistent or different terms and conditions which appear in any other document provided by Buyer. The applicable Order, including these Terms and Conditions, constitutes the sole and entire agreement of the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, both written and oral, with respect to such Order. These Terms and Conditions shall supersede any and all other agreements that have been executed between Buyer and Seller with respect to the applicable Order, unless otherwise agreed to in writing by both parties. No modification of these Terms and Conditions with respect to any Orders placed shall be of any force or effect unless reduced to writing, expressly referencing the section to be affected and signed by both parties.
  13. Assignment and Subcontracting. Any assignment of the Order, including these Terms and Conditions or any rights or obligations under these Terms and Conditions by Buyer without the prior written consent of Seller shall be null and void.
  14. Limitation of Liability. NEITHER PARTY IS LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY THE OTHER PARTY OR COULD HAVE BEEN REASONABLY FORESEEN REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
  15. Confidentiality. In the course of performing its obligations under this Order, each party (as the “Receiving Party”) may have access to the other party’s (as the “Disclosing Party”) non-public, confidential, or proprietary information (collectively “Confidential Information”). Confidential Information includes, without limitation, Specifications, drawings, samples, client lists, confidential information of customers of the Disclosing Party, plans, business operations, pricing, or other business information, whether oral or written in electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential”. The Receiving Party shall use the Disclosing Party’s Confidential Information solely for purposes of performing its obligations or exercising its rights related to the Order and shall not disclose or otherwise use Disclosing Party’s Confidential Information except upon Disclosing Party’s prior written consent. Upon Disclosing Party’s request, Receiving Party shall promptly return all documents and other materials received from Disclosing Party. Disclosing Party shall be entitled to seek injunctive relief for any violation of this Section. This Section shall not apply to information that is (a) in the public domain (b) known to the Receiving Party at the time of disclosure, or (c) developed by a party without use of the other party’s Confidential Information; or (d) rightfully obtained by the Receiving Party on a non-confidential basis from a third party. Any existing confidentiality agreements between the parties shall remain in full force and effect.
  16. Force Majeure. Except with respect to payment obligations, neither party hereto shall be liable to the other for default or delay in performing its obligations hereunder if caused by fire, strike, riot, war, act of God, governmental order or regulation, and/or any other similar or different occurrence beyond the reasonable control of the party so defaulting or delaying (each an “Event”). Notwithstanding the above, in the event that the Seller’s inability to perform its obligations continues for more than fifteen (15) days or is projected to continue for fifteen (15) days or more after notification of the Event, either party shall have the right, in its sole discretion, to terminate any outstanding Orders, upon prompt written notice, without penalty for such termination.
  17. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms and Conditions shall be construed as creating any agency, partnership, joint venture, employment or other relationship between the parties and neither shall have the authority to contract for or bind the other party in any manner whatsoever.
  18. Waiver. No waiver by any party of any of the provisions of these Terms and Conditions shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Agreement, no failure to exercise or delay in exercising any right shall operate or be construed as a waiver thereof.
  19. Governing Law. Each Order, including these Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Missouri, U.S.A., excluding: (a) its conflicts of laws principles; and (b) the United Nations Convention on Contracts for the International Sale of Goods.
  20. Construction. Should any provision of any Order be held to be void, invalid or unenforceable, the remaining provisions shall not be affected and shall continue in full force and effect as though such unenforceable provision(s) had never been included.
  21. Survival. These Terms and Conditions which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms and Conditions.
  22. Notices. Any notice or communication provided for hereunder (each a “Notice”) is required to be in writing and will be deemed given and received (a) upon delivery, if delivered personally, by email transmission or by a reputable overnight courier (with all fees prepaid). Except as otherwise provided in these Terms and Conditions, a Notice is effective only (a) upon deemed receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.