CAIRE MEDICAL JAPAN CO., LTD.
Terms & Conditions of Sale
1. General. The terms and conditions contained herein, together
with any additional or different terms contained in the proposal
provided by CAIRE Medical Japan Co., Ltd. ("Seller"), if any,
submitted to Purchaser (which proposal shall control over theseterms and conditions to the extent it contains any conflicting termsand conditions) constitute the entire agreement between the parties
with respect to the subject sale (the “Agreement”) and supersedes
all prior communications and agreements. Acceptance by Sellerof Purchaser's order and Purchaser's acceptance of Seller's
proposal is expressly limited to and conditioned upon Purchaser's
acceptance of these terms and conditions, which may not bechanged or waived except in a writing signed by both parties. Any
additional, inconsistent or different terms and conditions
contained in Purchaser's order or any other documents supplied byPurchaser are hereby expressly rejected. Unless the context
otherwise requires, the term "Equipment" as used herein includes
all goods, equipment, parts, and accessories sold to Purchaser bySeller. Unless the context otherwise indicates, the term"Services" as used herein shall mean labor, supervision, repair
and project engineering services provided by Seller. The term
"Purchaser" shall mean only the party issuing the order to Seller
for Equipment and/or Services, regardless of the end user of theEquipment and/or Services.
2. Payment Terms. Unless a different payment schedule is agreed
to in writing by Seller, payments for domestic sales are due net
thirty (30) days and shall be made by wire transfer to the bankaccount designated by Seller at the expense of Purchaser. Latepayments are subject to a 1.5% late charge per month, calculated
per diem, and Seller’s rights set forth in Section 11. Payments forexport sales to be made in accordance with the payment schedule
separately specified by Seller. If required by Seller, Purchaser willsubmit collateral satisfactory to Seller. Purchaser agrees to furnish
Seller with requested credit information. Purchaser’s credit limit
is set at Seller’s sole discretion and may be modified at any time
based upon Purchaser’s credit risk as determined by Seller. In theevent that Purchaser’s credit risk increases, Seller is entitled tomodify the payment terms and require alternate payment methods.
3. Taxes. Federal, state, local, or value added, sales taxes or any
other similar taxes imposed under any legal system measured on
the price of Equipment and Services by any taxing authority are
not included in the price and will be charged in additional to theprice if Seller is responsible for such tax to the competent taxing
authority.
4. Time Limit. All quotations are valid for a period of thirty
calendar days.
5. Acceptance. Unless otherwise provided hereunder or in
Limited Warranty Statement (hereinafter defined), acceptance ofEquipment occurs at the point of delivery and acceptance of any
Services provided hereunder occurs upon completion of theServices. Unless otherwise provided hereunder or in Limited
Warranty Statement, after acceptance occurs, Purchaser may notassert any demand, claim or legal remedies regarding the accepted
Equipment or Services against Seller.
6. Limited Warranty, Exclusive Remedies and Indemnity.
Seller agrees to and shall provide to Purchaser a limited warranty
and exclusive remedies statement relating to the Equipment soldhereunder (“Limited Warranty Statement”).
Purchaser
acknowledges receipt of the Limited Warranty Statement (whichis available from Seller upon request) and agrees to its terms.
Seller warrants its Services against defects in workmanship for aperiod of ninety (90) days from the date of their completion. THE
REMEDIES AND WARRANTIES STATED IN THE LIMITEDWARRANTY STATEMENT ARE EXCLUSIVE AND IN LIEU OF
ALL OTHER WARRANTIES AND REMEDIES 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 FOR A
PARTICULAR PURPOSE OR ARISING FROM COURSE OFDEALING OR USAGE OF TRADE ARE HEREBY EXPRESSLYDISCLAIMED BY SELLER AND ALL EQUIPMENTMANUFACTURERS. Purchaser agrees to defend, indemnify andhold Seller harmless from any third party claims arising out of theuse, sale, lease or rental of the Equipment or Services and from allexpenses, losses and other damages resulting from Purchaser’s
breach of any of the terms and conditions herein.
7. Termination. No termination of this Agreement by Purchaser
for default shall be effective unless, within fifteen (15) days after
receipt by Seller of Purchaser's written notice specifying suchdefault, Seller shall have failed to initiate and pursue correction ofsuch specified default.
8. Excusable Delays. The schedule for shipment of Equipment orperformance of Services will be modified for delays resulting fromcauses beyond Seller’s reasonable control, including but notlimited to, strikes, restrictions of the United States Government orother governments having jurisdiction, delays in transportation, orinability to obtain necessary labor, materials or manufacturing
facilities.
9. Delivery. All deliveries of Equipment are Ex Works Seller’sfacility with responsibilities as defined in INCOTERMS 2010
unless otherwise specified on Seller’s order acknowledgement. If
Seller agrees in writing to prepay transportation and insurance
charges on Purchaser’s behalf, Purchaser agrees to pay Seller thesame upon receipt of an invoice from Seller. Claims for shortages
in delivery shall be deemed waived unless made in a writingreceived by Seller within ten (10) days after delivery. Delivery
dates quoted are based on Seller's best estimate of a realistic time
when delivery will be made, and are subject to change due to priorsales. Delivery dates will be confirmed on Seller's acceptance ofany resulting order. Seller may make early delivery or partial
delivery and invoice Purchaser accordingly.
10. Laws, Codes and Standards. Except as expressly statedherein, the price and schedule included herein are based on laws,
codes, and standards in effect as of the date of the subject sale. Ifsuch laws, codes, and standards change and increase or decrease
the cost of performing the work or impact the schedule, then Seller
will advise Purchaser of the same. Purchaser and Seller shallpromptly negotiate in good faith and mutually agree upon any
modification to the order resulting from any such change.
11. Title and Risk of Loss or Damage. Despite any agreementwith respect to delivery terms or prepayment of transportation orinsurance charges, the risk of loss or damage for Equipment shallpass to Purchaser upon the earlier of payment in full or completionof delivery, and delivery shall be deemed to be completed upondelivery to a private or common carrier or upon moving intostorage, whichever occurs first, at the point of delivery. Purchaser
shall insure the Equipment upon delivery and ensure that Seller’sinterest in the Equipment is noted on the insurance policy. Seller
shall retain title to the Equipment until all invoices for such
Equipment have been paid in full. In the event of late payment,
Seller reserves the right to enter onto Purchaser’s premises torepossess the Equipment until Purchaser has paid for such
Equipment in full.
12. Installation and Field Service. Installation of Equipment
furnished hereunder shall be made by Purchaser, unless otherwise
agreed to in a writing signed by Seller's duly authorized
representative. Field service will be provided on a per diem basis
upon written authorization by Purchaser and at Seller’s rates in
effect when such services are provided.
13. Cancellation. Cancellation of any order must be by written
notice to Seller and will be subject to Seller's cancellation charges,
including without limitation all costs incurred through the date ofcancellation, cost to process such cancellation, plus a reasonableprofit of Seller.
14. Intellectual Property; Confidentiality. Purchaser shalldefend, indemnify and hold Seller harmless from all expenses,
losses and other damages resulting from any actual or allegedinfringement of patents, copyrights or trademarks arising from
Seller's compliance with Purchaser's designs, specifications orinstructions. Unless otherwise agreed to in a writing signed bySeller's duly authorized representative, all right, title and interest
in any inventions, developments, improvements or modificationsof the Equipment and Services made by Seller or Purchaser shallexclusively remain with Seller. Any design, manufacturing
drawings or other information submitted to Purchaser shall remain
the exclusive property of Seller. Purchaser shall not, without
Seller's prior written consent, copy nor disclose such information
to any person. The information, drawings, plans, standards, andspecifications furnished by Seller were developed at Seller'sexpense and may not, without Seller's prior written consent, beused nor disclosed by Purchaser for any purpose other than toinstall, own, operate, and maintain the subject Equipment. If theEquipment is held to infringe a United States patent in effect as ofthe date of this Agreement, then Seller may at its option procure
for Purchaser the right to use the Equipment; modify or replace itwith non-infringing Equipment; refund the purchase priceallocable to the infringing Equipment, or settle or otherwise
terminate said actions on behalf of Purchaser. The foregoing isSeller's entire liability on patent infringements. Purchaser shallkeep confidential and shall not without the prior written consent
of Seller disclose to any third party any technical or commercial
information which Purchaser has acquired from Seller as a resultof discussion, negotiations or other communications relating to theEquipment or this order.
15. Assignment. This Agreement or any rights, duties orobligations under this Agreement may not be transferred orassigned by operation of law or otherwise by Purchaser, without
the prior express written consent of Seller. Any transfer orassignment of this Agreement or any rights, duties or obligations
under this Agreement without Seller's consent shall be void. Seller
may transfer or assign, by operation of law or otherwise, thisAgreement or any rights, duties or obligations under thisAgreement without the consent of Purchaser.
16. Export Sales. In no event shall Seller be required to export ordeliver any technical information, data or Equipment if suchexport or delivery is then prohibited or restricted by any law orregulation of the U.S. Government or any other applicablegovernmental agency of any country having jurisdiction, and insuch cases, Seller’s obligations under such order shall beterminated at Seller’s option, and Seller shall be entitled toreasonable termination charges for the termination of the order.
All orders hereunder are subject to applicable governmental laws,regulations and rules of the Government of the United States,
including departments, agencies and sub-divisions thereof, and of
the country in which the Equipment sold hereunder will beinstalled, used, or performed. Purchaser agrees not to transfer any
Equipment, technical information or data of Seller without fullcompliance with applicable U.S. laws and those of any otherapplicable governmental agency of any country having
jurisdiction, and shall cause the end user to comply with such laws.
Purchaser warrants and represents that it is in full compliance withall applicable laws. Specifically, Purchaser shall not transfer,
export or re-export any Equipment or components thereof
supplied by Seller to a prohibited person, to a prohibited country,
or for a prohibited use under the U.S. export laws and those of any
other applicable governmental agency of any country having
jurisdiction.
17. Limitation of Liability. TO THE FULLEST EXTENTALLOWED UNDER APPLICABLE LAW, IN NO EVENT SHALLSELLER,ITSAFFILIATES,SUPPLIERSANDSUBCONTRACTORS BE LIABLE TO PURCHASER OR TO ANYTHIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTALOR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOTLIMITED TO LOSS OF PROFITS, LOSS OF USE, COST OFCAPITAL, COST OF SUBSTITUTE EQUIPMENT, DOWNTIMECOSTS, DELAYS NOR FOR ANY PENALITIES WHETHER ANYSUCH CLAIM FOR THE SAME IS BASED ON CONTRACT,WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OROTHERWISE. SELLER'S LIABILITY FOR ANY SUCH CLAIMSWHETHER IN CONTRACT, WARRANTY, NEGLIGENCE,TORT, STRICT LIABILITY, OR OTHERWISE OR FOR ANY
LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH
THIS AGREEMENT OR THE PERFORMANCE OR BREACHTHEREOF, OR FROM ANY DESIGN, SALE, INSTALLATION,OPERATION OR USE OF THE EQUIPMENT ORPERFORMANCE OF ANY SERVICES COVERED BY THISAGREEMENT, SHALL IN NO EVENT EXCEED THE
PURCHASE PRICE PAID TO SELLER BY PURCHASER FORTHE SPECIFIC EQUIPMENT OR PART THEREOF OR FORTHE SERVICES GIVING RISE TO THE CLAIM.
18. Governing Law. This Agreement (including the LimitedWarranty Statement) and any claim, controversy or dispute arisingunder or related to this Agreement, the relationship of the parties,
and the interpretation and enforcement of the rights and duties ofthe parties will be governed exclusively by the laws of Japan,
without regard to any conflicts of law principles. Purchaser agrees
that any claim, controversy or dispute arising under or related tothis Agreement shall be resolved at courts and any legal action orproceeding taken by Purchaser against Seller shall be brought in
the Tokyo District Court having the exclusive jurisdiction as courtof the first instance within one year of the date of the occurrenceof the event giving rise to any such claim. The parties agree that
the UN Convention on Contracts for the International Sale ofGoods shall not apply.
19. Headings. The headings used throughout are for convenience
only and shall be given no legal effect. Fax copies shall be given
the full force and effect as an original.
20. Entire Agreement; Severability; Third Parties. These terms
and conditions constitutes the complete and exclusive agreement
between Seller and Purchaser and except for the Limited Warranty
Statement, there are no agreements, understandings, restrictions,warranties, or representations between Seller and Purchaser otherthan those set forth herein or therein provided for in the Limited
Warranty Statement. The express terms and conditions of thisAgreement shall apply in place of all warranties, conditions,terms, representations, statements, undertakings and obligations
whether expressed or implied by statute, common law, custom,
usage or otherwise, all of which are excluded to the fullest extent
permitted by law. In the event of any terms and conditions herein
being overridden by any statutory provisions, the remaining terms
and conditions shall still have effect and the overridden provision
shall be revised to meet the original intention of such provision to
the fullest extent permitted by law. No term or condition isintended for the benefit of any third party, and Seller andPurchaser do not intend any term or condition should beenforceable by a third party, including without limitation any end
user of Equipment or Services. 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 from time to time and shall include anyorders, regulations, codes of practice, instruments or othersubordinate legislation made under it.
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