CAIRE MEDICAL LTD.
Terms & Conditions of Sale
1. General. The terms and conditions contained herein and theLimited Warranty Statement referenced in Section 6, together withany additional or different terms contained in the final, written
proposal, if any, provided to Purchaser by CAIRE Medical Ltd.,("Seller"), which proposal shall be incorporated herein and control
over these terms and conditions to the extent it contains any
conflicting terms and conditions, constitute the entire agreement (the“Agreement”) between the parties with respect to the subject sale.
Acceptance by Seller of Purchaser's purchase order is expressly
limited to and conditioned upon Purchaser's acceptance of theseTerms & 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 purchaseorder or any other documents supplied by Purchaser are hereby
expressly rejected. Unless the context otherwise requires, the term
"Equipment" as used herein shall mean all goods, equipment, parts,and accessories sold to 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 theparty issuing the purchase order to Seller for Equipment or Services,
regardless of whether or not the Purchaser is the end user of theEquipment or Services. All references to “days” herein shall mean
calendar days unless otherwise stated.
2. Payment Terms and Invoices. Unless a different payment
schedule is agreed to in writing by Seller, payment terms are net 30days. Late payments are subject to a 1.5% monthly late charge,calculated per diem. Any checks returned for non-sufficient funds
and any stopped or reversed payments shall be subject to a fee. If
required by Seller, Purchaser will cause an irrevocable letter of credit
to be established in favor of Seller on a bank approved by Seller.
Seller is entitled to charge costs associated with the letter of credit to
Purchaser’s account. Performance schedules are conditional uponreceipt of the letter of credit within 30 days of award. Purchaser
agrees to furnish Seller with any requested credit information.
Purchaser’s credit limit will be set at Seller’s sole discretion and may
be modified at any time based upon Purchaser’s credit risk as
determined by Seller. In the event that Purchaser’s credit riskincreases or Purchaser fails to pay timely, Seller is entitled tosuspend performance and/or require alternate payment methods.
Purchaser shall notify Seller of any items disputed in good faithrelating to an invoice within 15 days after the invoice date in writing
specifying the nature of the disputed item, but in no event isPurchaser entitled to withhold or set off any invoiced amounts
without Seller’s prior written approval. In the event it becomes
necessary for Seller to refer Purchaser’s account to a third party forcollection or for Seller to take other enforcement action of thisAgreement against Purchaser, Purchaser agrees to pay any and all
attorney and arbitrator fees, lien filing fees, collection costs and legal
expenses associated therewith incurred by Seller.
3. Taxes. Federal, state, local, value added, sales and use, andother applicable taxes measured on the price of Equipment orServices in any legal system by any taxing authority are not includedin the price unless otherwise agreed in writing by Seller. Purchaser
acknowledges and is aware that there may be tax consequences that
result from any participation in a rebate incentive program withSeller and that Purchaser may be required to pay income tax on thevalue 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 is solely responsible for ensuring that anytaxes arising from 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 of thirty days,
unless otherwise extended in writing by Seller. If this Agreement isdelayed or suspended in whole or in part by Purchaser for more than
60 days, pricing shall either be subject to re-negotiation or theAgreement may be deemed cancelled for Purchaser’s convenienceand subject to Section 13, at Seller’s sole option.
5. Acceptance. Acceptance of Equipment occurs at point ofDelivery. Acceptance of any Services provided hereunder occurs atcompletion.
6. Limited Warranty, Exclusive Remedies and Indemnity.
Seller agrees to, and shall provide to Purchaser, a limited warranty
and exclusive remedies statement from the manufacturer relating to
the Equipment sold hereunder (“Limited Warranty Statement”).
Purchaser acknowledges receipt of the Limited Warranty Statement(which is also available from Seller upon request) and agrees to its
terms. Seller warrants its Services against defects in workmanshipfor a period of ninety days after the date of their completion. THE
REMEDIES AND WARRANTIES STATED IN THE LIMITEDWARRANTY STATEMENT ARE EXCLUSIVE AND IN LIEU
OF ALL OTHER REMEDIES AND WARRANTIES GRANTEDUNDER APPLICABLE LAW, INCLUDING WITHOUT
LIMITATION, WARRANTIES OF QUALITY, PERFORMANCEAND DESIGNS, WRITTEN, ORAL OR IMPLIED, AND ALL
OTHER WARRANTIES INCLUDING ANY IMPLIEDWARRANTIES OF MERCHANTABILITY AND FITNESS FORA PARTICULAR PURPOSE OR ARISING FROM COURSE OFDEALING OR USAGE OF TRADE, WHICH ARE ALL HEREBY
EXPRESSLY DISCLAIMED BY SELLER AND ALL
EQUIPMENT MANUFACTURERS. Purchaser agrees to defend,indemnify and hold Seller harmless from any third-party claims
arising out of the use, sale, or lease of the Equipment or Services andfrom all expenses, losses and other damages resulting fromPurchaser’s breach of any of the terms and conditions herein.
7. Termination. No termination by Purchaser for default shall beeffective unless, within 15 days after receipt by Seller of Purchaser's
written notice specifying such default, Seller fails to initiate andpursue correction of such specified default.
8. Excusable Delays. The schedule for Delivery of Equipment
and performance of Services will be modified for delays resulting
from causes beyond Seller’s reasonable control, including but notlimited to, acts of God, war, terrorism, strikes, restrictions of theUnited States Government or other governments having jurisdiction,
delays in transportation, or inability to obtain necessary labor,materials, or manufacturing facilities.
9. Delivery and Risk of Loss or Damage. Unless otherwise
agreed in writing by Seller, all shipments are Ex Works Seller’swarehouse with responsibilities as defined in INCOTERMS 2010,and the term “Delivery” as used herein occurs in accordance withINCOTERMS 2010. Notwithstanding anything to the contrary, alllead time quoted and accepted by Seller shall be from the date Seller
accepts Purchaser’s purchase order. If Seller agrees in writing toprepay transportation and transit insurance charges for the accountof Purchaser, then Seller is entitled to include shipping, handling andany transit insurance charges on its invoice. Purchaser shallindemnify, defend and hold Seller harmless from any claims byfreight carriers for Purchaser’s failure to pay freight charges. Claims
for shortages in or damage to shipment shall be deemed waived
unless made in writing and received by Seller within 10 days after
receipt of Equipment by Purchaser or its designated consignee.
Delivery dates quoted are based on Seller's best estimate of a realistic
time when shipment will be made 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 riskof loss or damage shall pass to Purchaser upon completion ofDelivery or upon moving the Equipment into storage, whicheveroccurs first.
10. Laws, Codes and Standards. Price and Delivery schedule arebased on the applicable laws, codes, and standards stated in theEquipment specifications in effect as of the date of Seller’sacceptance of the purchase order. If such laws, codes, and standards
change, or if Purchaser changes the laws, codes, and standards statedin the Equipment specifications, and such change increases ordecreases the cost of performing the work or impacts the Delivery
schedule, then Seller will advise Purchaser of the same, and theparties shall promptly negotiate in good faith and mutually agree
upon any modification to the order resulting from any such change.
11. Title. Seller shall retain legal and beneficial title to theEquipment until all invoices for such Equipment have been paid infull. Until title passes to Purchaser, Purchaser shall keep theEquipment separate from goods belonging to the Purchaser or thirdparties and mark them as Seller's property and shall allow Seller
access to the premises to ensure that such requirements have been
met. In the event of late payment, Seller reserves the right to enter
onto Purchaser’s or its customer’s premises to repossess theEquipment upon written notice by Seller. Upon Seller’s request,
Purchaser shall complete and execute all documents required toaffect Seller’s rights under this clause.
12. Installation and Field Service. Installation of Equipment
furnished hereunder shall be by Purchaser, unless otherwise agreed
to in writing by Seller's duly authorized representative. Field service
will be provided on a per diem basis upon written authorization byPurchaser at Seller’s rates in effect when such Services are provided.
Purchaser will provide free and unrestricted access to Seller
personnel, contractors, subcontractors, equipment and any otherpersonnel necessary in order for Seller to complete the contractedwork.
13. Cancellation. Cancellation of any purchase order must be by
written notice to Seller and will be subject to Seller's cancellation
charges and fees, including but not limited to, all costs incurred
through the date of cancellation, the cost for materials ordered thatcannot be returned, return and cancellation fees, cost to process suchcancellation, plus a reasonable profit.
14. Intellectual Property and Confidentiality. Unless otherwise
agreed to in writing signed by Seller's duly authorized representative,
all right, title and interest in any inventions, developments,improvements or modifications of the Equipment and Services madeby Seller or Purchaser as a result of the Agreement shall exclusively
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 shallremain Seller’s exclusive property. Without the express prior writtenconsent of Seller, Purchaser shall not copy or disclose Seller
Documents to any third party, and shall not use them for any purpose
other than to install, own, operate, and maintain the subject
Equipment or to use the Services, including, without limitation, usewith any other project, or for the completion of the projectcontemplated by this Agreement by others. Seller Documents are notsuitable for use on any other agreement or project and any reuse ofSeller Documents without the express written consent of Seller will
be at the sole risk of Purchaser, and Purchaser shall indemnify,defend and hold Seller harmless from any and all claims arising fromPurchaser’s reuse of Seller Documents. Upon Seller’s request at anytime, Purchaser shall promptly return all Seller Documents. If
Seller's Equipment is held to infringe a United States patent in effectas of the date of this Agreement (other than any infringement

resulting from Seller’s compliance with Purchaser’s designs,
specifications or instructions or from the use of the Equipment incombination with other materials or the operation 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, orsettle or otherwise terminate said actions on behalf of Purchaser. The
foregoing is Seller's entire liability and Purchaser’s sole remedy forpatent infringements of the Equipment. Purchaser shall defend,indemnify and hold Seller harmless from all expenses, losses andother damages resulting from any actual or alleged infringement ofintellectual property rights arising from Seller's compliance with
Purchaser's designs, specifications or instructions, from the use of
the Equipment in combination with other materials, or from theoperation of any process. All references to “days” herein shall mean
calendar days unless otherwise stated.
15. Assignment. This Agreement may not be transferred orassigned by Purchaser by operation of law or otherwise without theprior express written consent of Seller. Any transfer or assignmentby Purchaser of any rights, duties or obligations without Seller'sconsent shall be void.
16. Limitation of Liability. NOTWITHSTANDING ANYTHING
TO THE CONTRARY IN THIS AGREEMENT, TO THE
FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW,
IN NO EVENT SHALL SELLER, ITS AFFILIATES, SUPPLIERS
AND SUBCONTRACTORS BE LIABLE TO PURCHASER ORTO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT,INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES,INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSSOF USE, COST OF CAPITAL, COST OF SUBSTITUTE
EQUIPMENT, DOWNTIME COSTS, COST OF DELAYS, ORFOR ANY PENALITIES, WHETHER ANY SUCH CLAIM FORTHE SAME IS BASED ON CONTRACT, WARRANTY, TORT,NEGLIGENCE, STRICT LIABILITY, INDEMNIFICATION OROTHERWISE. NOTWITHSTANDING ANYTHING TO THECONTRARY IN THIS AGREEMENT, SELLER'S TOTAL
LIABILITY ARISING OUT OF THIS AGREEMENT FOR ANYCLAIMS WHETHER IN CONTRACT, WARRANTY,NEGLIGENCE,TORT,STRICTLIABILITY,INDEMNIFICATION OR OTHERWISE, OR FOR ANY LOSS ORDAMAGE ARISING OUT OF, CONNECTED WITH THISAGREEMENT OR THE PERFORMANCE OR BREACHTHEREOF, OR FROM ANY DESIGN, SALE, INSTALLATION,OPERATION OR USE OF THE EQUIPMENT ORPERFORMANCE OF ANY SERVICES UNDER THISAGREEMENT,SHALL IN NO EVENT EXCEED THEPURCHASE PRICE PAID TO SELLER BY PURCHASER FORTHE SPECIFIC EQUIPMENT OR PART THEREOF OR FORTHE SERVICES GIVING RISE TO THE CLAIM.
17. Export Sales and Compliance with Trade Laws. In no event
shall Seller be required to export or deliver any technicalinformation, data or Equipment if such export or Delivery is thenprohibited 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 theEquipment or Services to be sold will be installed, used, orperformed. Should Seller’s performance of its obligations hereunder
be prohibited by any applicable governmental agency, in whole or inpart, or if the exportation or importation of the Equipment which isthe subject of this Agreement be precluded because of the inability
to obtain an export or import license within a reasonable time, as
appropriate, then Seller’s obligations hereunder shall be terminatedat Seller’s option, and Seller shall be entitled to reasonable
cancellation charges. Unless otherwise agreed in writing by Seller,Purchaser accepts all responsibility for exporting and importing any

Equipment sold hereunder outside of the U.S., will be the exporterof record and importer of record, and will be responsible for filingany documents, obtaining any licenses required by the U.S. or othergovernment agencies, and paying all duties and taxes necessary forexportation and importation. Purchaser agrees not to export, reexport or import any Equipment, technical information or data ofSeller without full compliance with U.S. and other laws of countries
having jurisdiction and shall cause the end user of Equipment orServices to comply with such applicable laws. Purchaser warrants
and represents that it is in full compliance with all such applicable
export and import laws, including but not limited to, the International
Traffic In Arms Regulations, the Export Administration Regulations,and all U.S. anti-boycott and embargo regulations, and Purchaser
shall provide Seller with such written assurances of compliance asrequested 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, toa prohibited country, or for a prohibited use under the U.S. or any
other applicable trade laws. Purchaser agrees to indemnify and holdSeller harmless from and against any and all damages and expenses(including attorneys’ fees) resulting from Purchaser’s violation ofapplicable export and import regulations.
18. Compliance with Anti-bribery Laws. Purchaser warrants andrepresents that it is familiar with the requirements 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 beamended 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 ofany kind or any political contribution in violation of such laws.
Purchaser shall provide Seller with such written assurances ofcompliance with such laws as requested by Seller from time to time.
Any payment, offer of payment, or agreement to make a paymentthat is contrary to the laws of the United States or the laws of thecountry in which it is made, or any other payment in conflict withthis clause, will constitute a material breach of this Agreement, andany 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 fromPurchaser’s violation of the requirements referenced in this Section.
19. Governing Law and Arbitration. This Agreement (includingthe Limited Warranty Statement) and any claim, controversy ordispute arising under or related to the Agreement, the relationship of
the parties, and the interpretation and enforcement of the rights andduties of the parties is exclusively governed by the laws of Englandand Wales, 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
this Agreement after one year from the date of the occurrence of theevent giving rise to any such claim, waives any sovereign immunity
claims or defenses, and consents to and will not contest personal
jurisdiction in the local courts of London. Except for accountcollection disputes, any disputes, controversies or claims arising outof or relating to this Agreement, or the breach thereof which cannot
be resolved amicably within 60 days, shall be settled by bindingarbitration. This agreement to submit to binding arbitration shall be
specifically enforceable under the prevailing arbitration law. The
award of the arbitrator shall be final, and a judgment may be entered
upon it by any court having jurisdiction. A party desiring to invoke
this arbitration provision shall serve written notice upon the other of
its intention to do so and the name of an impartial individual who isknowledgeable in matters pertaining to Seller’s industry to serve as
an arbitrator. If the other party objects within 15 days to the arbitrator
proposed, and the parties fail to agree on an arbitrator within 30 days
thereafter, then the arbitrator shall be appointed by the arbitration
tribunal. The arbitration shall be conducted in accordance with theInternational Arbitration Rules then prevailing of the International
Centre for Dispute Resolution. Unless the parties agree otherwise,
all arbitrations shall be conducted, and all related documents
submitted shall be in the English language in London, England, andthe arbitrator shall apply the substantive governing laws as specifiedabove. All awards granted by the arbitrator shall be final and bindingon the parties and shall include interest from the date of any breachor default and from the date of the award until paid in full. Judgment
may be entered on any award or decision of the arbitration panel byeither party in a court of competent jurisdiction. The arbitrator may
grant emergency interim relief according to the applicable arbitration
rules, and shall award costs, fees and other expenses of thearbitration, including reasonable attorney’s fees, to the party not indefault. If Purchaser fails to promptly assume Seller’s defense whenrequested to do so as required under this Agreement, then Seller may
defend with counsel of its own choice at the expense of Purchaser.
20. Miscellaneous. With the exception of fraudulent
misrepresentations, the Agreement as defined in Section 1 (includingthe Limited Warranty Statement) constitutes the complete andexclusive agreement between Seller and Purchaser and there are noagreements,
understandings,
restrictions,warranties,
orrepresentations between Seller and Purchaser other than those set
forth herein. If any provision, or any part thereof, of this Agreement
is found by any court or governmental agency of competentjurisdiction to be invalid or unenforceable for any reason
whatsoever, then such provision shall be deemed revised and applied
to the maximum extent allowed by applicable law, and suchinvalidity or unenforceability shall not affect the remainder of suchprovision or any other provision here which shall remain in full force
and effect. All obligations herein shall survive termination,expiration or completion of this Agreement. No term or condition isintended for the benefit of any third party, and Seller and Purchaser
do not intend any term or condition to be enforceable by a third party,including any end user of Equipment or Services, whether under theContracts (Rights of Third Parties) Act 1999 or otherwise. Seller’s
failure on any occasion to insist on strict performance of any term orcondition hereof shall not constitute a waiver of compliance withsuch 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 areference to the statutory provision, enactment, order, regulation orinstrument as amended, replaced, consolidated or re-enacted fromtime to time and shall include any orders, regulations, codes ofpractice, instruments or other subordinate legislation made under it.
The headings used throughout are for convenience only and shall begiven no legal effect. Fax copies shall be given the full force andeffect as an original.
Rev 7/19