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 Standard Terms and Conditions of Sales

  1. Scope of Agreement All shipments, services, sales and  quotations  between INGENIOUS MEDICAL (INGENIOUS) and the purchaser (“Buyer”) are subject to the general terms and conditions of business contained herein (“General Terms and Conditions”), and receipt by Buyer of the General Terms    and  Conditions without  immediate  written  objection  thereto  and/or  acceptance by Buyer of an order of Products (as hereinafter defined) which is confirmed or accompanied by the General Terms and Conditions, shall constitute an acceptance by Buyer of the General Terms and Conditions and any additional terms and conditions of INGENIOUS set forth on any attachment(s)  hereto  or on  the reverse  side  hereof.   Any additional or different terms and conditions contained  in any response hereto by Buyer or in Buyer’s  initial  offer  shall  be deemed rejected by INGENIOUS  without  the need for further notice of rejection and shall be of no effect and shall not be in any circumstances binding upon INGENIOUS, except as set forth in Section 18 herein.  The General  Terms  and Conditions  shall govern any such order and all future business transactions between INGENIOUS and  Buyer  relating  to  the  purchase  and sale of goods manufactured by or for INGENIOUS and any other related parts and/or  accessories (hereinafter collectively referred to as “Products” or individually as a “Product”), even in cases where the General Terms and Conditions are not expressly re-agreed upon.

 

  1. Acceptance of Order. Each order of Products shall not become effective and shall not be binding on INGENIOUS until the earlier of (i) shipment by INGENIOUS of Products conforming to such order or (ii) transmittal by INGENIOUS  of  a  written acceptance of such order to

 

  1. Cancellation; Indemnification. An order placed with and accepted by INGENIOUS can be canceled by Buyer only with the prior written consent of INGENIOUS and only upon terms that will indemnify INGENIOUS for all losses incurred by INGENIOUS associated with Buyer’s cancellation, including but not limited to, the costs already incurred by INGENIOUS in performance of INGENIOUS contractual duties and any profits which INGENIOUS would have received had the contract been completed. If Buyer makes an assignment for the benefit of creditors, if a petition or other proceeding, voluntary or involuntary, is filed by  or   against   Buyer under applicable   bankruptcy, reorganization or other insolvency laws, if Buyer generally becomes unable to pay its debts as they become due, or if Buyer fails to remit payment to INGENIOUS for Products in accordance with the terms hereof, INGENIOUS may, at its option, cancel all deliveries of undelivered Products or any confirmed orders effective immediately by giving Buyer written notice of such

 

  1. Product Descriptions. All references in sales brochures, technical data sheets and offers as to size, weight, technical specifications, price and other details of the Products are approximate and shall not be binding on INGENIOUS unless expressly incorporated in an accepted order. INGENIOUS reserves the right, from time to time, to  modify,  in  whole  or  in  part,  any  one  or  more  of the Products or specifications thereof, to substitute new products in lieu of any one or more of the Products, and to add new products to the Products, whereupon in each case the term of Products as  used in this  Agreement shall  be  deemed automatically to reflect such

 

  1. Taxes. Prices quoted by INGENIOUS for the Products do not include applicable sales, use, excise and similar taxes. In addition to the amount quoted by INGENIOUS for the Products, Buyer shall pay all such taxes which under applicable statutes are required to be paid as a result of the sale to Buyer regardless of the party upon whom the obligation to pay is placed. Taxes may   be included on INGENIOUS´s invoice with Products or may be separately invoiced at the discretion of INGENIOUS; any such invoice shall specify each category of taxes which Buyer is required to pay.

 

  1. Shipment; Installments. Buyer will give INGENIOUS reasonable notice regarding Buyer's requirements for time and delivery of the Products unless otherwise specified in a writing signed by INGENIOUS. Buyer understands and agrees that INGENIOUS will use INGENIOUS’s reasonable efforts to ship the Products approximately on the estimated supply date set forth in an accepted order. INGENIOUS ensures that the Products will be packaged and prepared for shipment to Buyer in a reasonable manner such as to prevent damage and shall comply with applicable regulations. INGENIOUS shall not be responsible for any delays in shipment beyond INGENIOUS's reasonable control but shall notify Buyer of any anticipated delays. It is expressly understood  that INGENIOUS  may delay  release  of  the  Products  to  Buyer  or  Buyer’s agents until such time as payments due, as set forth herein, have been received by INGENIOUS.  INGENIOUS reserves the right to make delivery in installments unless otherwise expressly stipulated to the contrary in a writing signed by INGENIOUS.  Delay in delivery of any one or more installments shall not relieve Buyer of   Buyer’s obligation to accept remaining deliveries.
  2. Paymen Payment terms shall be in advance from the date of invoice unless otherwise specified on the invoice. Invoices for equipment and materials Shall be payable only in Euro currency.   INGENIOUS  may from  time to  time demand different  terms  of  payment  from  those  specified  herein whenever  it reasonably appears   that Buyer's financial condition requires such change, and may demand assurance of Buyer's ability to pay whenever it reasonably appears that such ability is in doubt. INGENIOUS may, upon making of such demand, stop production and suspend shipments hereunder. If, within the period stated in such demand, Buyer fails or refuses such different terms of payment, or fails or refuses to give adequate assurance of its ability to pay, INGENIOUS may at INGENIOUS’s option treat such failure or refusal as a repudiation of any portion of an accepted order that has not been fully performed. In all events, time shall be of the essence with regard to Buyer’s payment obligations to INGENIOUS hereunder. Any amount not paid by Buyer when due shall accrue interest at the lower of eighteen percent (18 %) per annum or the highest legal rate allowed under applicable law.  In addition, Buyer agrees to pay all reasonable costs and expenses of collection of amounts past due hereunder (including any interest thereon), including, but not limited to, actual fees and expenses of INGENIOUS´s attorney, and other legal and court costs. The foregoing rights of INGENIOUS shall be in addition to, and not in lieu of, any other rights or remedies INGENIOUS may have at law or in equity. With respect to amounts properly invoiced or otherwise payable hereunder, Buyer shall have no right of offset by virtue of any claim against INGENIOUS, unless and until such claim has been finally adjudicated in favor of Buyer by a court of competent jurisdiction and such adjudication is not subject to appeal, or INGENIOUS has acknowledged the validity and amount of such claim in writing.
  3. Grant of Security Interest. Buyer hereby grants INGENIOUS a security interest in the Products and all proceeds thereof to secure Buyer’s obligation to INGENIOUS. As a secured party, INGENIOUS shall be entitled to exercise all rights and remedies available to a secured creditor under applicable law. To assist INGENIOUS in protecting INGENIOUS’s interest, Buyer agrees to execute any and all documents necessary to perfect INGENIOUS’s interest, including all financing statements. Buyer further appoints INGENIOUS as Buyer’s attorney in fact for the purpose of executing all documents on Buyer’s behalf which are necessary to perfect and maintain INGENIOUS’s security interest in the
  4. Carrier and Routing. Unless the parties agree otherwise, INGENIOUS shall have the right to select the carrier(s) and routing of shipment. Products sold herein are sold EX WORKS (INCOTERMS in their applicable current version) INGENIOUS’s place of business in FREIBURG, Germany Buyer assumes all responsibility for payment of freight, and all costs associated therewith, which freight charges and other  costs  are  not,  unless  specifically  set  forth  in  a writing signed by INGENIOUS, reflected in the prices quoted by INGENIOUS. INGENIOUS may, at INGENIOUS’s option, prepay freight and seek reimbursement from Buyer.  Unless requested in writing by Buyer, INGENIOUS will not insure the Products against loss during transit. If INGENIOUS so insures any Products at Buyer’s request, the cost of such insurance shall be the sole responsibility of Buyer.

 

  1. Title and Risk of Loss. Title to and risk of loss in the Product shall pass to Buyer upon   delivery   of   the   Product   by   INGENIOUS (or INGENIOUS's agent  or representative) to the carrier at the shipping point

 

  1. Warranties

 

  • Except as provided herein below, INGENIOUS makes NO Warranty, express or implied, concerning the Product(s) and expressly disclaims all other warranties, whether expressed or implied, specifically including, without LIMITATION,  IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY,  AND   NON-INFRINGEMENT.   INGENIOUS warrants, for the applicable time periods set forth below,  (i)  that  the  Products will  be  packaged and labeled in accordance with  applicable  laws;  (ii)  that  upon  payment of the purchase price by Buyer to INGENIOUS for the Product, INGENIOUS shall convey good and merchantable title to Buyer and that the Products will be delivered free from any  lawful  lien,  claim  or  encumbrance  of  any nature, kind or character, except  as  contemplated  by  this  Agreement;  (iii) the Products, when shipped, will comply in all material respects to any specifications referenced in the applicable accepted order, as modified by any  order  acknowledgement  or confirmation  issued  by INGENIOUS,  and  (iv)  that the   Products   will   be   free from   defects   in   material   or  workmanship   for  the  period  specified  for  the  applicable    The  applicable  warranty periods for the Products are as follows: 24 Months for Capital Equipment and 6 Months  for  reusable  accessorie.  Buyer  acknowledges  that   any   warranty period specified   for  the  Products  will commence on the original date of sale       of the Product. If the Product is purchased as a new Product, the original date of sale of such Product will be the invoice date to Buyer.  If  the  Product  is  purchased as  a used or refurbished Product, however, the  original  date  of  sale  of such Product will be the  date  of  delivery  of  such Product  to  its  original  buyer.  INGENIOUS reserves  the  right  from  to  time  to  make  available  extended  warranties  to  purchasers  of  designated  Products.  Any  such  extended warranty shall  be  subject  to  the  terms  and  conditions  offered  to  such  purchaser, provided that INGENIOUS confirms the applicability of such extended warranty to such Buyer in a writing signed by INGENIOUS.
  • Buyer shall make warranty complaints, if any, within the warranty period specified above for the applicable Product by notifying an INGENIOUS representative of the defect in writing and obtaining a return authorization  number (“Return Authorization Number”) to be assigned by an INGENIOUS representative within such warranty period. Buyer’s failure to give INGENIOUS written notice of any claim and to obtain a Return Authorization Number within the applicable warranty period shall constitute an absolute and unconditional waiver of such claim. Justified warranty claims shall only obligate INGENIOUS to correct the defect by repairing or replacing the defective Product(s) at INGENIOUS  sole    Buyer  shall,  at  Buyer’s  expense, return  any defective Product(s) to INGENIOUS to the location to be designated by INGENIOUS. Buyer  shall  bear  the  expense  of  removal  and  reinstallation  of any defective Product(s). INGENIOUS shall, at  INGENIOUS's  expense,  return repaired or replacement Products to Buyer and shall have the right to select the carrier(s) and routing of  shipment.  At  INGENIOUS’s  sole  option,  in lieu of repairing  or  replacing  a defective Product, INGENIOUS may elect to refund to Buyer the amount paid by Buyer to INGENIOUS for the Product, pro rated to reflect the period from delivery of the Product until receipt by INGENIOUS of the warranty complaint as compared to the applicable warranty period for the respective Product.
  • This warranty  shall  not  cover any  failure  caused,  wholly  or  in  part, by materials delivered from Buyer and incorporated in the  Products  or  by  changes or special features requested by Buyer or associated with drawings, blueprints   or  other   technical   data   delivered by   This  warranty  shall apply only if the Products were operated,  used and  stored  according  to  all  safety,   training   and   other   instructional   guidance  provided   to  Buyer.  This warranty shall not  cover damage  or  failure  caused, wholly  or  in  part,  by misuse, negligence, external electrical fault, accident, disaster, normal wear, modification, abuse, use for a purpose  other  than  that  indicated  in  the  applicable product manual, lack of service, use with improper  materials,  or improper   installation,   application,   service or  operation. Buyer acknowledges that  some  of  the  INGENIOUS  Products  are  designed  for  use  with INGENIOUS  accessories  and  parts  as  noted  in  the  applicable  product   manual  or  literature.For   products  that  indicate  that  they are    designed for use with INGENIOUS accessories or parts, failure to use such INGENIOUS accessories or parts may adversely affect the operation of the Product and may result in injury and/or undesirable patient outcomes, and in such instance, INGENIOUS shall not be responsible for any costs or damages incurred as a result thereof. Buyer shall be responsible for technical support and service costs for any claim not covered by this warranty
  • With respect to disposable accessories returned by Buyer in accordance with  the Section 11(d), INGENIOUS  will issue a credit in the amount of the purchase price of such disposable accessories minus a restocking fee in the amount of twenty-five percent (25%) of INGENIOUS original price of such disposable accessories (not taking into account any applicable discounts) to Buyer. Prior to returning any such disposable accessories to INGENIOUS, Buyer must obtain a Return Authorization Number from  an  INGENIOUS representative. All freight charges for disposable accessories returned to INGENIOUS shall be borne and paid in advance by Buyer. All such disposable accessories returned to INGENIOUS must be in new, original condition, must be unopened and in original packaging, and must have a minimum shelf life of six (6) months remaining  as determined  by  the  expiration  date  of  such  disposable accessories. INGENIOUS reserves the  right  to  refuse  to  accept  any disposable accessories  not  returned  in  accordance  with  INGENIOUS return policy, including, but not limited to, items unsuitable for resale, items returned after thirty(30) days  from  the  date  of  invoice,  special  orders,  products  not  in  standard INGENIOUS packaging, opened cases or units, or items returned without the prior issuance by INGENIOUS of  a  Return Authorization Number. For  the avoidance  of  doubt,  the provisions of this Section 11(d) are applicable to orders of disposable accessories only and are not applicable to any other Products. No Product may be returned to INGENIOUS except (i) in connection with a warranty claim submitted in accordance  with Section 11(c) above or  (ii)  for  disposable accessories returned in accordance with the terms set forth in this Section 11(d).
  • IN ALL EVENTS, THE LIABILITY OF  INGENIOUS,  WHETHER  BASED IN CONTRACT, TORT, STRICT LIABILITY  OR  OTHERWISE, SHALL NOT EXCEED THE PRICE OF THE PRODUCT WITH RESPECT TO WHICH INGENIOUS LIABILITY IS CLAIMED, AND IN NO EVENT WILL INGENIOUS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, THAT ARISE IN CONNECTION WITH THE PRODUCT OR USE THEREOF OR IN CONNECTION WITH EITHER INGENIOUS’S FAILURE TO DELIVER OR ITS LATE DELIVERY OF THE PRODUCT (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE OF THE PRODUCT, LOSS OF REVENUES, AND LOSS OF PROFITS).
  • Buyer acknowledges that the remedies provided herein are exclusive and in lieu of all other remedies available to Buyer at law or in

 

  1. Acceptance. Buyer shall inspect all shipped goods immediately following arrival thereof at the destination, and shall give written notice to INGENIOUS within ten (10) days of the receipt thereof   (i) of any   claim that the Products  are nonconforming, provided that a reasonable inspection should have revealed such nonconformity, (ii) of any shipping damage to such Products, or (iii) of any claim of shortage of Products. If Buyer shall fail to give such notice within such time period, the Products shall be deemed to conform to the terms of an accepted order, Buyer shall be deemed to have accepted the Products, and Buyer may not make any subsequent warranty claim that should have been revealed upon a reasonable inspection at the time of

 

  1. Defaults. If either party should default in the fulfillment of any obligation or condition hereunder (other than defaults in the payment of money due from Buyer to INGENIOUS hereunder, which defaults are subject to Section 7 herein), and such default is not cured within thirty (30) days after written notice specifying the nature of such default, then the non-defaulting party shall have the right to terminate an accepted order by giving notice of termination to the other. Such right of termination shall be in addition to, but not in lieu of, any other remedies that may be available at law or in

 

  1. Confidentiality and Nondisclosure. Except as required by law, Buyer shall not disclose any of the terms or conditions of an accepted order to any third party (other than a permitted successor or assign) for any reason whatsoever. All specifications, drawings, sketches, models, samples, designs, technical information or data, written, oral or otherwise furnished by or on behalf of INGENIOUS shall remain the property of INGENIOUS and shall be returned (together with all copies) promptly upon INGENIOUS request. Such information shall be treated as confidential, and shall not be used, disclosed or reproduced by Buyer, except as required in the course of performance under this Agreement. The   obligations   of confidentiality contained  herein shall extend for a period of three years beyond the expiration or termination of an accepted order; provided, however that Buyer’s obligations of confidentiality hereunder with respect to any such information which shall  rise  to  the  level  of  a  trade  secret (as defined under  applicable law)  shall remain in full force  and  effect for so  long as such information remains a trade secret under applicable law.For Purposes of this Agreement, the confidentiality obligations embodied herein do not extend to any information which, at the time of disclosure, (i) is already knownor  independently  developed  by  Buyer  as evidenced by its written records; (ii)   is in the public domain through no wrongful act of Buyer; or (iii) is received by Buyer from a third party who was under no legal obligation not to disclose such information. The parties acknowledge that the rights of INGENIOUS hereunder and in addition to those rights INGENIOUS may have under common law or applicable statutes for the protection of trade

 

  1. Force Majeure. Under no circumstances shall INGENIOUS be liable for any delay or failure to perform hereunder when such failure or delay is, directly or indirectly, caused by, or in any manner arises from fire, floods, accidents, civil unrest, acts of God, war, terrorist acts, governmental interference or embargoes, strikes, labor difficulties, shortage of labor, fuel, power, materials, or supplies, breakage of machinery or apparatus, transportation delays,  or any other cause  or  causes beyond INGENIOUS control whether or not similar in nature to any of the

 

  1. Waiver. No waiver by either party of any breach of any of the terms or conditions contained herein shall be construed as a waiver of any succeeding breach of the same or any other term or condition contained

 

  1. Severability. Any provision hereof that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction.

 

  1. Entire Agreemen These General Terms and  Conditions  supersede  all prior agreements between the parties with respect to the subject matter hereof  and constitute the entire agreement and understanding between the parties covering the sale and purchase of the Products. Except for demands by INGENIOUS under Section 7 above or other modifications as may be expressly accepted in writing by INGENIOUS, no modification hereof shall be affected by telephone or orally or by the use of purchase orders, acknowledgments, acceptances or other forms at variance with or in addition to the terms and conditions contained herein. In the event of a conflict in terms between  the preprinted terms  on  this  form  and  the terms of any attachments hereto or specific terms added to an accepted order, the specific additional terms  and/or  the terms on the attachment shall control provided such terms  were  (i) added  prior to acceptance  by  INGENIOUS  and  (ii) specifically referenced and agreed to by INGENIOUS in writing.

 

  1. Arbitration. Any controversy or claim arising out of or relating to this Agreement, the breach thereof or the purchase, delivery or use of the Products in general as well as all subsequent dealings between the parties relating to the subject matter thereof, shall be submitted to and resolved by the American Arbitration Association ("AAA"), with such arbitration to be held in Atlanta, Georgia, USA, in accordance with the AAA's Commercial Arbitration Rules then in effect. Any award or decision rendered in such arbitration shall be final and binding on both Buyer and INGENIOUS, and judgment may be entered thereon in any court of competent jurisdiction if necessary. Except as provided to the contrary hereinabove, each party hereto shall pay any and all expenses incurred by such party in connection with such arbitration proceeding, unless otherwise determined by the

 

  1. Assignability. Buyer may not assign these General Terms and Conditions, by operation of law or otherwise (excluding merger), without the express written consent of

 

  1. Governing Law.  The  rights  and  obligations  of  INGENIOUS  and  Buyer shall be governed by the laws  of  the  Federal  republic  of  Germany  without regard to principles of conflicts of laws, and INGENIOUS and Buyer shall have all rights and remedies accorded to them by the Uniform Commercial Code, except as such rights are modified by the terms