Terms and Conditions of Sale
1. General. The terms and conditions contained
herein, the Limited Warranty Statement as referenced in
Section 6 herein, the Order Acknowledgment, along withany additional or different terms contained in the final,
written proposal or long-term agreement, if any, provided
to Purchaser by CAIRE Diagnostics Inc. (“Seller”), whichshall be incorporated herein and control over theseterms and conditions to the extent it contains any
conflicting terms and conditions, constitute the entire
agreement (“Agreement”) between the Parties (asdefined below) with respect to the subject sale.
Acceptance by Seller of Purchaser's purchase order isexpressly limited to and conditioned upon Purchaser's
acceptance of these Terms & Conditions of Sale, which
may not be changed or waived except in writing signed
by Seller. Any additional, inconsistent or different terms
and conditions contained in Purchaser's purchase order
or any other documents supplied by Purchaser are
hereby expressly rejected. Unless the context otherwise
requires, the term “Equipment” as used herein shallmean all goods, equipment, parts, and accessories soldto Purchaser by Seller. Unless the context otherwise
indicates, the term “Services” as used herein shall mean
labor, supervision, repair and project engineering
services provided by Seller. As used herein, the term
“Purchaser” shall mean only the Party issuing thepurchase order to Seller for Equipment or Services,
regardless of whether or not the Purchaser is the end
user of the Equipment or Services, and the term“Parties” shall collectively mean Seller and Purchaser,
and individually as a “Party.”
2. Payment Terms and Invoices. Seller may, but is
not obligated to, sell Equipment to Purchaser on credit.
Unless a different payment schedule is agreed to inwriting by Seller, payment in full shall be due andpayable within thirty (30) days from the date of theinvoice. In the event Purchaser fails to pay the invoice
within thirty (30) days from the date of the invoice,
Purchaser shall pay Seller interest on such delinquent
payment at one and one-half percent (1.5%) per month,compounded monthly, or the highest rate permitted bylaw. Any checks returned for non-sufficient funds andany stopped or reversed payments shall be subject to afee. If required by Seller, Purchaser will cause anirrevocable letter of credit to be established in favor of
Seller on a bank approved by Seller. Seller is entitled tocharge costs associated with the letter of credit to
Purchaser’s account. In the event that Purchaser’s
credit risk increases, or Purchaser fails to pay timely,
Seller is entitled to suspend performance and/or require
alternate payment methods. Purchaser shall notify
Seller of any items disputed in good faith relating to an
invoice within fifteen (15) days after the invoice date inwriting specifying the nature of the disputed item, but inno event is Purchaser entitled to withhold or set off any
invoiced amounts without Seller’s prior written approval.

3. Taxes. Federal, state, local, value added, sales anduse, and other applicable taxes measured on the priceof Equipment or Services in any legal system by any
taxing authority are not included in the price unlessotherwise agreed in writing by Seller. Purchaser
acknowledges and is aware that there may be tax
consequences that result from any participation in arebate incentive program with Seller and that Purchaser
may be required to pay income tax on the value of any
rebates it receives through a rebate incentive programwith Seller, if any. Seller is not responsible for remitting
any taxes on Purchaser’s behalf, or for providing
Purchaser with tax-related documentation. Purchaser issolely responsible for ensuring that any taxes arisingfrom its participation in a rebate incentive program, ifany, is reported and paid to the appropriate tax
authority.
4. Time Limit. All quotations are valid for a period ofthirty (30) calendar days, unless otherwise extended inwriting by Seller. If this Agreement is delayed orsuspended in whole or in part by Purchaser for more than
thirty (30) days, pricing shall either be subject to renegotiation or this Agreement may be deemed cancelled
subject to Section 11 herein, at Seller’s sole option.
5. Acceptance. Acceptance of Equipment occurs at
point of Delivery. Acceptance of any Services provided
hereunder occurs at completion.
6. Limited Warranty, Exclusive Remedies andIndemnity. Seller agrees to, and shall provide toPurchaser, a limited warranty and exclusive remedies
statement relating to the Equipment sold hereunder(“Limited
Warranty
Statement”).
Purchaser
acknowledges receipt of the Limited Warranty
Statement (which is also available from Seller uponrequest) and agrees to its terms. Seller warrants its
Services against defects in workmanship for a period ofninety (90) days after the date of their completion. THE
REMEDIES AND WARRANTIES STATED IN THE
LIMITED WARRANTY STATEMENT ARE EXCLUSIVE
AND IN LIEU OF ALL OTHER REMEDIES AND
WARRANTIES GRANTED UNDER APPLICABLELAW,
INCLUDING,WITHOUT
LIMITATION,WARRANTIES OF QUALITY, PERFORMANCE AND
DESIGNS, WRITTEN, ORAL OR IMPLIED, AND ALL
OTHER WARRANTIES, INCLUDING ANY IMPLIEDWARRANTIESOFMERCHANTABILITYAND
FITNESS FOR A PARTICULAR PURPOSE OR
ARISING FROM COURSE OF DEALING OR USAGE
OF TRADE, WHICH ARE ALL HEREBY EXPRESSLYDISCLAIMED BY SELLER AND ALL EQUIPMENTMANUFACTURERS. Purchaser agrees to defend,
indemnify and hold Seller harmless from any third party
claims arising out of the use, sale, or lease of theEquipment or Services and from all expenses, losses
and other damages resulting from Purchaser’s breachof any of the terms and conditions herein.
7. Force Majeure. Seller shall have no liability for any

delay or failure in performance hereunder, in whole orin part, if such delay or failure arises from (i) compliancein good faith with any regulation, order or request of any
foreign or domestic governmental official or agent,whether or not later shown invalid, unauthorized orinapplicable; (ii) the occurrence of any contingency thenonoccurrence of which was a basic assumption at thetime this Agreement was made, including without
limitation acts of God, fire, flood, accident, riot, war,
terrorism,
sabotage,cyber-attack,quarantine,
pandemic, public health emergency, strike, lock-out,
slowdown, labor trouble or shortage, breakdown or
failure of equipment, carrier delay, or embargo; (iii)
Seller's inability to obtain any required raw material orintermediate product, energy source, equipment, labor,or transportation at prices and on terms deemed bySeller to be acceptable; (iv) Seller's incurring increased
costs for compliance with environmental protection,
health or safety regulations; or (v) any event or
occurrence not within the reasonable control of Seller,
whether or not foreseeable, that makes performance
impracticable. If any such circumstances affect only apart of Seller's capacity to perform, Seller may allocate
production and deliveries among its customers and its
own requirements as Seller may determine in its sole
discretion. At the option of either party, quantities
affected by this paragraph may be eliminated from theAgreement without liability, but the Agreement shallremain otherwise unaffected. Seller shall have nofurther obligations or liability under this Agreement if in
its sole judgment, Seller’s continued performance
under this Agreement would violate export controls,
sanctions, or other restrictions on trade imposed by any
domestic or foreign governmental authority whether
imposed prior to or after the effective date of thisAgreement.
8. Delivery and Risk of Loss or Damage. Unlessotherwise agreed in writing by Seller, all domestic
shipments are EXW or CPT, and international
shipments may be covered under FCA, FOB, EXW,
CPT, CIP, CIF, CFR, DAP, or DDP, with responsibilities
as defined in Incoterms 2010, and “Delivery” as usedherein occurs in accordance with Incoterms 2010.
Notwithstanding anything to the contrary, all lead times
quoted and accepted by Seller shall be from the dateSeller accepts Purchaser’s purchase order. If Seller
agrees in writing to prepay transportation and transit
insurance charges for the account of Purchaser, thenSeller is entitled to include shipping, handling and any
transit insurance charges on its invoice. Purchaser shallindemnify, defend and hold Seller harmless from any
claims by freight carriers for Purchaser’s failure to pay
freight charges. Claims for shortages in or damage toshipment shall be deemed waived unless made inwriting and received by Seller within ten (10) days after
receipt of Equipment by Purchaser or its designatedconsignee. Delivery dates quoted are based on Seller's
best estimate of a realistic time when shipment will bemade and are subject to change. Delivery dates will be
confirmed on Seller's acceptance of any resulting order,
and Seller will use its best efforts to meet such Delivery
date. Seller may make early shipment or partial
shipments and invoice Purchaser accordingly. Despite
any agreement with respect to delivery terms or

prepayment of transportation or transit insurance
charges, the risk of loss or damage shall pass toPurchaser in accordance with Incoterms 2010.
9. Laws, Codes and Standards. Price and Delivery
schedule are based on the applicable laws, codes, andstandards stated in the Equipment specifications in effectas of the date of Seller’s acceptance of the purchaseorder. If such laws, codes, and standards change, or if
Purchaser changes the laws, codes, and standards
stated in the Equipment specifications, and such change
increases or decreases the cost of performing the work or
impacts the Delivery schedule, then Seller will advise
Purchaser of the same, and the Parties shall promptly
negotiate in good faith and mutually agree upon any
modification to the order resulting from any such change.
Any local laws, statutes, codes or standards, orinterpretations thereof that do not match national building
codes are hereby exempt from the Agreement unlesswritten copies are presented by Purchaser to Seller as
additional specifications and accepted in writing by Seller
as part of this Agreement. Purchaser and Seller agree
that any rebates provided by Seller constitute a “discountor other reduction in price” of the Equipment or Services
under Section 1128B(b)(3)(A) of the Social Security Act,
42 U.S.C.§ 1320a-7b(b)(3)(A). Purchaser represents andwarrants that it currently complies with and will continue
to comply with all current and future applicablerequirements under federal and state law regarding thereceipt of discounts by healthcare providers, including,
without limitation, any disclosure requirements or
requirements for reporting such price reductions under
Medicare, Medicaid, and other federal and state
government health care programs.
10. Title. Title and risk of loss shall transfer to Purchaser
upon shipment of the Equipment. Seller shall retain alegal lien against the Equipment until Purchaser has paid
for such Equipment in full. Purchaser shall complete andexecute all documents required to this effect uponSeller’s request and allow Seller to enter onto
Purchaser’s premises to repossess the Equipment until
Buyer has paid for such Equipment in full in the event ofPurchaser’s failure to pay upon written notice by Seller.
11. Cancellation. Cancellation of any purchase ordermust be by written notice to Seller and will be subject toSeller's cancellation charges and fees including, but notlimited to, all costs incurred through the date ofcancellation, the cost for materials ordered that cannot
be returned, return and cancellation fees, cost to process
such cancellation, plus a reasonable profit.
12. Intellectual Property and Confidentiality. Unlessotherwise agreed to in writing signed by Seller's duly
authorized representative, all right, title and interest in any
inventions,developments,
improvements
ormodifications of the Equipment and Services made by
Seller or Purchaser as a result of this Agreement shallexclusively remain with Seller. Any design, reports, plans,drawings, standards, specifications or other information
submitted to Purchaser by Seller (“Seller Documents”)
were developed at Seller's expense and shall remain
Seller’s exclusive property. Without the express priorwritten consent of Seller, Purchaser shall not copy ordisclose Seller Documents to any third party, and shallnot use them for any purpose other than to install, own,
operate, and maintain the subject Equipment or to use theServices, including, without limitation, use with any otherproject, or for the completion of the project contemplatedby this Agreement by others. Seller Documents are notsuitable for use on any other agreement or project andany reuse of Seller Documents without the express
written consent of Seller will be at the sole risk of thePurchaser, and the Purchaser shall indemnify, defend
and hold Seller harmless from any and all claims arisingfrom Purchaser’s reuse of Seller Documents. Upon
Seller’s request at any time, Purchaser shall promptly
return all Seller Documents. If Seller's Equipment is held
to infringe a United States patent in effect as of the dateof this Agreement (other than any infringement resulting
from Seller’s compliance with Purchaser’s designs,
specifications or instructions or from the use of theEquipment in combination with other materials or theoperation of any process), then Seller may at its option
procure for Purchaser the right to use the Equipment,
modify or replace it with non-infringing Equipment;
refund the purchase price allocable to the infringing
Equipment, or settle or otherwise terminate said actions
on behalf of Purchaser. The foregoing is Seller's entire
liability and Purchaser’s sole remedy for patent
infringements of the Equipment. Purchaser shall defend,
indemnify and hold Seller harmless from all expenses,
losses and other damages resulting from any actual or
alleged infringement of intellectual property rights arisingfrom Seller's compliance with Purchaser's designs,
specifications or instructions, from the use of theEquipment in combination with other materials, or fromthe operation of any process.
13. Assignment. This Agreement may not betransferred or assigned by Purchaser by operation of law
or otherwise without the prior express written consent of
Seller. Any transfer or assignment by Purchaser of any
rights, duties or obligations without Seller's consent shallbe void.
14. Limitation of Liability. NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THISAGREEMENT, TO THE FULLEST EXTENT ALLOWEDUNDER APPLICABLE LAW, IN NO EVENT SHALLSELLER, ITS AFFILIATES, SUPPLIERS ANDSUBCONTRACTORS BE LIABLE TO PURCHASEROR TO ANY THIRD PARTY FOR ANY SPECIAL,INDIRECT,
INCIDENTAL,PUNITIVE
ORCONSEQUENTIAL DAMAGES, INCLUDING BUT NOT
LIMITED TO LOSS OF PROFITS, LOSS OF USE,
COST OF CAPITAL, COST OF SUBSTITUTE
EQUIPMENT, DOWNTIME COSTS, COST OF
DELAYS, OR FOR ANY PENALITIES, WHETHER ANY
SUCH CLAIM FOR THE SAME IS BASED ON
CONTRACT, WARRANTY, TORT, NEGLIGENCE,STRICT
LIABILITY,
INDEMNIFICATIONOROTHERWISE. NOTWITHSTANDING ANYTHING TO
THE CONTRARY IN THIS AGREEMENT, SELLER'STOTAL LIABILITY ARISING OUT OF THISAGREEMENT FOR ANY CLAIMS WHETHER IN
CONTRACT, WARRANTY, NEGLIGENCE, TORT,STRICT
LIABILITY,
INDEMNIFICATIONOROTHERWISE, OR FOR ANY LOSS OR DAMAGE
ARISING OUT OF, CONNECTED WITH THISAGREEMENT OR THE PERFORMANCE OR BREACH
THEREOF, OR FROM ANY DESIGN, SALE,INSTALLATION, OPERATION OR USE OF THE

EQUIPMENT OR PERFORMANCE OF ANY SERVICESUNDER THIS AGREEMENT,SHALL IN NO EVENT
EXCEED THE PURCHASE PRICE PAID TO SELLER BY
PURCHASER FOR THE SPECIFIC EQUIPMENT OR
PART THEREOF OR FOR THE SERVICES GIVING
RISE TO THE CLAIM.
15. Export Sales and Compliance with Trade Laws. In
no event shall Seller be required to export or deliver any
technical information, data or Equipment if such export or
Delivery is then prohibited or restricted by any law or
regulation of the U.S. Government, including
departments, agencies and sub-divisions thereof or of
any other applicable governmental agency of any country
having jurisdiction, including the country in which the
Equipment or Services to be sold will be installed, used,or performed. Should Seller’s performance of its
obligations hereunder be prohibited by any applicablegovernmental agency, in whole or in part, or if theexportation or importation of the Equipment which is the
subject of this Agreement be precluded because of theinability to obtain an export or import license within areasonable time, as appropriate, then Seller’s obligations
hereunder shall be terminated at Seller’s option, andSeller shall be entitled to reasonable cancellation
charges. Unless otherwise agreed in writing by Seller,
Purchaser accepts all responsibility for exporting andimporting any Equipment sold hereunder outside of the
U.S., will be the exporter of record and importer of record,
and will be responsible for filing any documents, obtaining
any licenses required by the U.S. or other government
agencies, and paying all duties and taxes necessary forexportation and importation. Purchaser agrees not toexport, re-export or import any Equipment, technicalinformation or data of Seller without full compliance with
U.S. and other laws of countries having jurisdiction andshall cause the end user of Equipment or Services tocomply with such applicable laws. Purchaser warrants
and represents that it is in full compliance with all suchapplicable export and import laws, including but notlimited to, the International Traffic in Arms Regulations,
the Export Administration Regulations, and all U.S. antiboycott and embargo regulations, and Purchaser shallprovide Seller with such written assurances ofcompliance as requested by Seller from time-to-time.
Specifically, Purchaser agrees not to export, re-export,sell or lease any Equipment or components thereof or
technical data supplied by Seller to a prohibited person,
to a prohibited country, or for a prohibited use under the
U.S. or any other applicable trade laws. Purchaser agrees
to indemnify and hold Seller harmless from and against
any and all damages and expenses (including attorneys’fees) resulting from Purchaser’s violation of applicable
export and import regulations.
16. Compliance with Anti-bribery Laws. Purchaser
warrants and represents that it is familiar with therequirements of the U.S. Foreign Corrupt Practices Act
and other similar anti-bribery laws, including without
limitation, the OECD Antibribery Convention and the UK
Bribery Act, that it has not and will not violate those laws
as may be amended from time-to-time, and that it neither
has nor will it offer, make, or agree to make, directly or
indirectly, any gift or payment of any kind or any politicalcontribution in violation of such laws. Purchaser shallprovide Seller with such written assurances ofcompliance with such laws as requested by Seller fromtime-to-time. Any payment, offer of payment, or
agreement to make a payment that is contrary to thelaws of the United States or the laws of the country inwhich it is made, or any other payment in conflict withthis clause, will constitute a material breach of thisAgreement, and any obligation of Seller hereunder shall
automatically terminate upon such breach without
further liability to Seller. Purchaser agrees to indemnify
and hold Seller harmless from and against any and all
damages and expenses (including attorneys’ fees)
resulting from Purchaser’s violation of the requirements
referenced in this Section.
17. Governing Law. This Agreement and any claim,
controversy or dispute arising under or related to thisAgreement, the relationship of the Parties, and theinterpretation and enforcement of the rights and dutiesof the Parties is exclusively governed by the laws of theState of Delaware, excluding its conflicts of law
principles and excluding the United Nations Convention
on Contracts for the International Sale of Goods.
Purchaser waives all causes of action arising under thisAgreement after one year from the date of theoccurrence of the event giving rise to any such claim,
waives any sovereign immunity claims or defenses, andconsents to and will not contest personal jurisdiction in
the local and federal courts of California.
18. Miscellaneous. This Agreement constitutes thecomplete and exclusive agreement between Seller andPurchaser
and
there
are
no
agreements,
understandings,
restrictions,warranties,
or

representations between Seller and Purchaser otherthan those set forth herein. If any provision, or any part
thereof, of this Agreement is found by any court or
governmental agency of competent jurisdiction to beinvalid or unenforceable for any reason whatsoever, thensuch provision shall be deemed revised and applied tothe maximum extent allowed by applicable law, and suchinvalidity or unenforceability shall not affect theremainder of such provision or any other provision here
which shall remain in full force and effect. All obligations
herein shall survive termination, expiration or completionof this Agreement. No term or condition is intended forthe benefit of any third party, and Seller and Purchaser
do not intend any term or condition to be enforceable bya third party, including any end user of Equipment orServices. Seller’s failure on any occasion to insist on
strict performance of any term or condition hereof shallnot constitute a waiver of compliance with such term or
condition on any other occasion or a waiver of any
default. References to any statutory provision,
enactment, order, regulation or other similar instrument
shall be construed as a reference to the statutory
provision, enactment, order, regulation or instrument as
amended, replaced, consolidated or re-enacted fromtime-to-time and shall include any orders, regulations,codes of practice, instruments or other subordinate
legislation made under it. The headings used throughout
are for convenience only and shall be given no legal
effect. Fax copies and portable document format (.pdf)
electronic transmissions shall be given the full force andeffect as the original.

Rev. 7/22
CAIRE Diagnostics Inc. · 7020 Koll Center Pkwy Suite 110 · Pleasanton, CA 94566 · +1 (888) 609-4839