Terms and Conditions of Sale

All quotations, products and services provided by CIVCO Medical Instruments Co., Inc., d/b/a “CIVCO Medical Solutions,” ( “CIVCO”) or its representatives to any customer, distributor, original equipment manufacturer, end-user or other purchaser (“Buyer”) are furnished only on the terms and conditions herein (“Terms”). By ordering and accepting delivery of products and/or services (“Products”) from CIVCO, Buyer accepts these Terms and agrees that, unless modified by separate negotiated agreement as provided below, these Terms, together with the item, quantity, price, and similar terms as confirmed in CIVCO’s written quotation, order acknowledgement and/or invoice, constitute the parties’ entire agreement, superseding all other communications and documentation. CIVCO expressly rejects any different or additional terms, preprinted or otherwise, contained or referenced in any purchase order or other documentation furnished by Buyer, whether before or after delivery of Products, even if receipt thereof is acknowledged by signature or otherwise. No modification of these Terms shall be effective unless set out in a separate negotiated agreement signed by an authorized officer of CIVCO.

1. Quotations & Prices.

All prices are in US Dollars and, unless otherwise specified by CIVCO in a separate written agreement or quotation, are subject to change without notice. Quotations are valid only for the period stated therein and may be withdrawn at any time prior to acceptance. Quotations to non-U.S. Buyers are solicitations for offers to purchase. Clerical or typographical errors are subject to correction. Quoted prices and delivery dates are valid only for the quantities, terms and payment schedule specified. Prices do not include any applicable federal, state, local, or foreign sales, use, excise, value added, goods and services, property, customs, documentary, import/export, or similar taxes, tariffs, fees, duties, or charges pertaining to the Products which, if paid by CIVCO, will be invoiced and paid by Buyer in addition to the Product price unless Buyer provides an exemption certificate acceptable to the applicable taxing authority. Buyer acknowledges its responsibility for reporting the dollar value of any discounts or price reductions in any costs claimed or charges made to Medicare, Medicaid, and any other U.S. or foreign federal, state, or local program providing reimbursement to Buyer.

2. Orders & Acceptance.

Orders must be presented in writing or via electronic means acceptable to CIVCO and will be binding on CIVCO only when accepted by written or electronic acknowledgment. CIVCO reserves the right, at its option and without liability, to refuse any order in whole or in part or to specify an alternate delivery schedule if orders from all sources exceed its inventory or ability to deliver in its normal course of business. CIVCO may allocate available inventory and production in its sole discretion. Where orders are placed, acknowledged, and/or invoiced by electronic transmission, the data transmitted will be deemed “in writing” and “signed;” and any printout of electronic transmissions maintained in the ordinary course will be considered an “original” and admissible as between the parties to the same extent as other business records maintained in documentary form. CIVCO shall be entitled to assume that all persons placing orders on behalf of Buyer are authorized to and do so and to accept these Terms.

3. Change & Cancellation.

Any changes requested by Buyer must be submitted in writing and are subject to written acceptance by an authorized representative of CIVCO. Costs and/or delays resulting from such changes will be solely determined by CIVCO and binding on Buyer. Provided that CIVCO receives adequate written notice, Buyer may cancel or suspend performance of any order for CIVCO-standard products for convenience, subject to payment of CIVCO’s associated costs, which may include, without limitation, special tooling, and work-in-progress expenses. CIVCO, with reasonable cause, may cancel or suspend performance of any order if Buyer fails to meet any of its obligations herein.

4. Payment Terms.

For customers without approved credit terms, all orders require payment prior to shipment by COD, letter of credit, or other payment method approved by CIVCO. Credit terms, if any, require CIVCO’s written approval and are measured from date of invoice. Deposits or stage payments, if any, are non-refundable; no discount for early payment is authorized without CIVCO’s written consent. Customers may pay for products using check, electronic fund transfer, Ghx ePay or other approved payment portals. Visa, MasterCard, Discover and American Express are also accepted for orders less than $10,000 with payment processed at time of shipment. Payment terms will not be affected by any delay in delivery, installation or acceptance. Partial shipments are billed as made and payable as set out above. Notwithstanding credit approval, CIVCO reserves the right to modify payment terms or require advance payment, letter of credit, or COD when, in the opinion of CIVCO, Buyer’s financial condition or previous payment record so warrants. If Buyer is delinquent in any payment due, CIVCO in its discretion may exercise any and all remedies permitted by law, including set off, and may suspend production and/or institute credit hold procedures on all open orders. Future orders will not be confirmed until Buyer’s account is brought current. A service charge not to exceed 1.5% per month may be charged on all past due balances, and if referred to an agent or attorney for collection, all costs and expenses of collection (including, without limitation, reasonable attorneys’ fees) will be charged to Buyer’s account, up to the maximum allowed by law.

5. Shipment & Inspection.

CIVCO will endeavor to deliver accepted orders promptly; it is understood, however, that projected delivery dates represent best current estimates only and CIVCO will have no liability for failure to perform within such dates. Unless otherwise agreed in CIVCO’s written order acknowledgement, all shipments are Ex Works (Incoterms 2010). Title will pass upon issuance of the carrier’s bill of lading (subject to CIVCO’s rights as an unpaid creditor) and, if not previously accepted, receipt of delivery by or on behalf of Buyer will constitute acceptance of these Terms. Buyer bears all risk and expense for delivery of goods, including without limitation shipping, loading, unloading, storage, freight, and insurance. Any shipping contracts made by Seller are for Buyer’s account and, if paid for by Seller, will be invoiced to Buyer in addition to the product price. Products will be packaged for shipment in accordance with CIVCO’s standard commercial practices, but CIVCO will not be responsible for loss or damage in transit. Buyer must inspect all items upon arrival and provide written notice to CIVCO, within 5 business days, of any claim for shortage or other nonconformance. If Buyer fails to give timely notice, all products will be deemed to conform to the order and, unless installation is required as provided below, will be deemed accepted. Use or resale of products in any manner after delivery will also constitute acceptance, regardless of whether installation has occurred. Claims for loss or damage in transit should be made directly to the delivering carrier and will not affect Buyer’s payment obligations to CIVCO. Buyer’s acceptance of items tendered as provided herein shall be final and irrevocable; any claims by Buyer thereafter must be in accordance with CIVCO’s Warranty, below.

6. Installation.

Where installation and acceptance are specified in CIVCO’s quotation or acknowledgment, CIVCO will coordinate with Buyer regarding delivery and installation schedule and requirements. Buyer is responsible for providing a safe and suitable site with all required equipment and service ready to receive the Products not later than the scheduled delivery date. Unless otherwise specified in CIVCO’s quotation or acknowledgement, (i) Buyer will be responsible for transporting the Products to the installation location, (ii) installation will be performed under the supervision of CIVCO’s installation technician, and (iii) Buyer will have a representative present at all times during the installation and capable of assisting as necessary. Buyer is responsible for taking all necessary precautions to prevent injury to CIVCO’s employees, agents, or contractors at Buyer’s premises. Upon completion of installation, the technician will demonstrate that the Product performs according to published specifications. Upon completion of such demonstration, the Product shall be deemed accepted and Buyer shall execute CIVCO’s acceptance letter evidencing such acceptance. Buyer shall reimburse CIVCO at its standard rates for any extra time, travel, or expense resulting from inadequacy of rescheduling arrangements or other delay or prolongation of installation caused by Buyer or its representatives.

7. Specifications and Validation.

All Products, when delivered by CIVCO, will conform to specifications as set out in CIVCO technical files; however, Buyer is responsible for validation of each specific Product application and any use of Products in conjunction with, physically installed on, or as a component of any hardware, software, services, components, accessories, attachments, interfaces, or consumables not supplied or specified by CIVCO for such purpose, including all necessary testing and qualification, and will put in place all necessary protections to ensure that any failure or defect relating to Products will not result in any other or further liability, damage, or safety issues. Any description, sample, or model is for identification or illustrative purposes only and should not be construed as a warranty that the Products will conform to the description, sample, or model. CIVCO’s responsibility shall in all events be limited to repair or replacement of the failed or defective Product, and excludes any further liability for or arising out of any non-CIVCO products in which or with which CIVCO’s Products may be installed, combined, or used. CIVCO reserves the right to discontinue or change the design or specifications of its Products at any time, and will use commercially reasonable efforts to notify Buyer of any discontinuation or any material change in specifications affecting form, fit or function.

8. Software & Firmware.

Any software provided by CIVCO, including without limitation internal system code, firmware, and/or operating system software (“Software”) is licensed, not sold, and is provided upon the terms and subject to the conditions in the applicable license agreement, the terms of which will prevail over any contrary terms herein. Buyer will be deemed to have agreed to the terms of any applicable license(s) by opening the media envelope or installing or using the Software or the Product in which it is installed. Unless otherwise provided in the applicable license agreement, CIVCO grants Buyer, only for so long as Buyer owns the Product, a limited, personal, non-transferable, nonexclusive license to use the Software only in machine readable form and only as part of the normal operation and maintenance of the Product(s) with which it is provided. All rights in and to such Software not expressly granted to Buyer are expressly reserved. Buyer may not copy or duplicate Software, in whole or in part (other than one back-up copy, bearing all original copyright notices, for archival purposes), or transfer, sublicense, distribute, sell, lease, rent, or otherwise provide or disclose any Software, or portion thereof, to any third party, including without limitation any use over the Internet or through an application service provider model. Buyer may not circumvent any usage or other restrictions imposed by any license manager, or use Software for application development purposes. The license granted to Buyer will terminate when Buyer discontinues use of the Products with which the Software is provided.

9. Return Policy.

Except in the case of valid warranty claims, Products may be returned for refund or credit only with advance written approval and a Return Material Authorization (RMA) number from CIVCO. The RMA number is valid for 30 days from issuance and must appear on all shipping documents and related correspondence. Products returned without an RMA number may be returned to Buyer freight collect. Returned Products must have been purchased within 30 days prior to the date of return and must be unused, in the same condition as when they were shipped by CIVCO, and in their original, unopened packaging. No Product may be returned if such Product has expired according to Product labels, if the seal or package integrity has been compromised. Products must be returned freight prepaid and properly boxed to prevent damage in transit. CIVCO WILL NOT ACCEPT C.O.D. PARCELS. CIVCO will inspect returned Products and issue any applicable credits based on the terms of this policy. For stock items returned, a restocking fee of up to twenty percent (20%) of the invoice price may be charged. Special order or custom Products may be returned only if agreed by CIVCO in writing and subject to payment of CIVCO’s reasonable costs associated with such Products and their return. After 30 days, all sales are final.

10. Limited Warranty.

CIVCO Products are warranted in accordance with the applicable limited warranty set out below (“Warranty”). The Warranty is effective only upon payment in full for the Product(s) to be warranted, extends only to the original Buyer, and my not be transferred to third parties by operation of law or otherwise. The Warranty may be altered or terminated by CIVCO in whole or in part for future sales at any time, without prior notice. No employee, agent, dealer, reseller, or other person is authorized to modify, vary, or extend the Warranty or to assume for CIVCO any other liability in connection with its Products.

CIVCO Products: Products manufactured by CIVCO are warranted against defects in materials and workmanship under normal use for a period of 12 months from date of invoice, unless otherwise stated on the Product labeling and/or instructions. The warranty does not include water and air filters, test strips, and other consumables or maintenance items. CIVCO further warrants that all sterile disposable Products will be sterile for not less than 12 months from date of invoice unless otherwise stated on the Product labeling and/or instructions.

CIVCO Software & Media. CIVCO warrants that any media on which CIVCO Software is furnished will be free from defects in materials and workmanship, and the Software, when properly installed, will perform substantially in accordance with the operational features of CIVCO’s published specifications at time of sale, in each case under normal use in accordance with CIVCO’s Product instructions, for a period of 12 months from date of invoice. Buyer is responsible for providing and maintaining current back-ups and industry standard, updated, virus protection and firewall programs for its systems and data. CIVCO does not warrant that the operation of the Software will be uninterrupted or error free.

Third party Products. Items not manufactured by CIVCO are warranted only by the original manufacturer and only if and to the extent set forth in the original manufacturer’s warranty. CIVCO will not be liable for any damage or loss of any nature with respect to third party products or failure of any such supplier to perform under its warranty.

Limited Remedy: Any breach of the foregoing warranties must be reported prior to expiration of the warranty period, and Buyer’s exclusive remedy and CIVCO’s entire liability for such breach will be repair or replacement, at CIVCO’s option, of the non-conforming Product or part or, if neither is in CIVCO’s opinion commercially feasible, refund of an amortized portion of the purchase price paid for the Product. Such obligation will be subject to CIVCO being granted the reasonable opportunity to inspect, at CIVCO’s expense, the non-conforming Product at the location of its use or storage or, at CIVCO’s request, return of the Product to CIVCO. Replacement of Products may be made by substitution of similar or upgraded Products having the same or similar functionality. Replacement parts will be provided on an exchange (refurbished) or new part basis, as determined by CIVCO. For CIVCO Software, CIVCO will provide support, updates and upgrades for the duration of the warranty period during normal working hours or at an additional charge outside normal working hours. CIVCO will not provide support or upgrades for software not representing the then-current or most recent upgrade for the Product to be serviced. Service required beyond the normal scope of warranty (see Exclusions below) or after expiration of the warranty period will be billable repairs, and CIVCO will charge its then-current rates and prices for parts, labor and transportation. For certain high level disinfection products, prepaid service contracts may be purchased within three (3) months of the equipment purchase date.

Exclusions: CIVCO’s Warranty does not cover defects or problems caused by Buyer’s acts or failure to act, the acts of others, or other events beyond CIVCO’s reasonable control. Without limiting the foregoing, any warranty claim, support claim, or liability is excluded, and Buyer will be solely responsible, for any problem, failure, malfunction, defect, claim, damage, liability, or safety issue arising out of (1) inadequate or faulty installation (unless performed by CIVCO) or failure to provide a suitable installation environment; (2) accident, abuse, damage, extraordinary wear and tear, or neglect, including without limitation damage in transit or improper or inadequate handling, storage, care or maintenance; (3) misuse, improper use, misapplication, or other failure to follow CIVCO’s Product instructions and safety precautions, including without limitation use of Products that have expired according to Product labels, or use outside of normal or specified operating conditions or in a manner not authorized in the Product documentation; (4) use of Products in conjunction with, physically installed on, or as a component of non-CIVCO products, software, services, accessories, attachments, interfaces, or consumables, other than those supplied or specified by CIVCO for such purpose; and/or (5) computer viruses, failure of electrical power, excess or insufficient water pressure, and other changes to the operating system or environment that adversely affect the Product(s), including without limitation acts of God, explosion, fire, flood, power surges, or other causes external to the Products. Modification, disassembly, rewiring, re-engineering, recalibration, and/or reprogramming of Products (unless specifically authorized by CIVCO in writing) is prohibited and will void all warranties.

TO THE FULL EXTENT ALLOWED BY LAW, THE WARRANTY AND REMEDIES SET OUT HEREIN ARE EXCLUSIVE AND EXPRESSLY IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES, TERMS, OR CONDITIONS, WRITTEN OR ORAL, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED. When, under applicable law, implied warranties are not allowed to be excluded in their entirety, such warranties will be limited to the duration of the applicable written warranty. For European customers, any terms herein limiting CIVCO’s liability shall not apply insofar as they conflict with mandatory statutory provisions of the Product Liability Act.

11. Use Restrictions & Requirements.

Buyer is responsible for compliance with all applicable laws, regulations, codes, recommendations, and requirements of government authorities and for obtaining all licenses and permits pertaining to the purchase, installation, operation, and/or use of the Products or their subsequent sale, shipment, or disposition, including any use or sale with or as a component of non-CIVCO products, it being understood that CIVCO makes no warranty of any kind regarding compliance with such requirements. Buyer may not (1) modify, alter, disassemble, or make changes to any Products, documentation, or other items provided by CIVCO, including but not limited to Product packaging, labels, and instructions, or permit any other person to do so, without CIVCO’s prior written consent; or (2) import, export, sell, transfer, service, store, handle, distribute, or use the same in any manner prohibited by applicable law, including applicable export control laws, restrictions and regulations, or contrary to any written warning or instruction given by CIVCO herein, in the Product documentation, on CIVCO’s website, or otherwise. Unless prohibited by applicable law, Buyer agrees to hold CIVCO harmless from all liabilities, claims, losses, damages, and expenses (including without limitation reasonable attorneys’ fees and expenses) arising out of Buyer’s breach of these terms and conditions.

12. Proprietary Information.

Buyer acknowledges that CIVCO’s Products are based upon and embody various confidential and/or proprietary technology, processes, methods, information, and trade secrets of CIVCO and its suppliers and licensors. CIVCO and its suppliers or licensors (as applicable) shall exclusively own all inventions, technology, know-how, trade secrets, and other proprietary information of any kind used or embodied in the Products, documentation, drawings, designs, specifications, Software, and other items furnished by CIVCO, all intellectual property rights with respect thereto, and all reproductions or derivatives thereof in any form (“Proprietary Information”). Buyer shall neither acquire nor claim any right, title, or interest in, and shall exercise reasonable care to maintain the confidentiality of, CIVCO’s Proprietary Information and shall use the same solely as required for its authorized use of the Products supplied hereunder. Buyer may not directly or indirectly (1) copy, adapt, develop, disassemble, reverse engineer, recast, compile, decompile, translate, or create derivative works from any Proprietary Information, or permit any other person to do so, (2) remove, alter, or obscure any copyright, trademark, patent, logo, government restricted rights, or other notices or legends from items provided by CIVCO, or (3) disclose or use CIVCO’s Proprietary Information for commercial purposes or in a manner detrimental to CIVCO. Disclosures of Proprietary Information may be made only to Buyer’s personnel having a specific need to know and a written obligation to protect such information no less restrictive than the restrictions herein, and Buyer will be responsible for any breach by its personnel. It is agreed that any breach of this Section may cause CIVCO irreparable harm for which recovery of damages would be inadequate, and that immediate injunctive or other equitable relief is appropriate and available to CIVCO to prevent any violation, threatened or actual, in addition to other remedies and without proof of actual damage.

13. Limitation of Liability.

Neither party will be liable for non-performance or delay in performance of any obligation (other than payment of monetary sums due) to the extent caused by events or circumstances beyond its reasonable control and without negligence on its part. For delays resulting from such causes, performance will be correspondingly extended. Any action against CIVCO arising from or relating to the Products or transactions to which these Terms apply must be brought within 2 years after the cause of action arises or performance hereunder is completed or terminated, whichever first occurs. With respect to bodily injury liability to third parties, each party will be responsible in such proportion as reflects its relative fault for damages arising from or related to the use or operation of CIVCO’s Products; provided, that CIVCO will have no responsibility whatsoever and, unless prohibited by applicable law, Buyer will defend and hold harmless CIVCO from and against, all losses, liabilities, damages or injuries arising out of (1) handling, storage, installation, operation, service, or use of any Product in violation of these Terms, or (2) any non-CIVCO or custom design, manufacture, or installation of Products pursuant to Buyer’s requirements, specifications or designs. IN NO EVENT WILL CIVCO BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER INDIRECT LOSSES OR DAMAGES, HOWEVER CAUSED, WHETHER OR NOT FORESEEABLE, AND EVEN IF ADVISED OF THE POSSIBILITY THEREOF. CIVCO’S AGGREGATE LIABILITY IN DAMAGES OR OTHERWISE FOR ANY AND ALL CAUSES SHALL NOT EXCEED THE PURCHASE PRICE PAID OR PAYABLE FOR THE APPLICABLE PURCHASE ORDER. THESE LIMITATIONS WILL APPLY REGARDLESS OF THE FORM OF ACTION AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. FOR EUROPEAN CUSTOMERS, THE FOREGOING SHALL BE MODIFIED SOLELY AS REQUIRED UNDER THE PRODUCT LIABILITY ACT, IT BEING AGREED THAT CLAIMS OVER AND ABOVE THOSE UNDER THE PRODUCT LIABILITY ACT WILL NOT BE MADE AGAINST CIVCO, AS MANUFACTURER, UNDER ANY THEORY OF LIABILITY, INCLUDING BY MEANS OF INDEMNIFICATION OBLIGATIONS.

Buyer acknowledges that these limitations of liability are a material part of the bargain between the parties and are reflected in Product pricing, which would be higher without these limitations.

14. Governing Law.

Except where expressly prohibited by statutory or constitutional restrictions governing choice of law by a political subdivision or instrumentality, these Terms, all transactions to which they apply, and any disputes arising out of Products supplied hereunder shall be governed by and construed and enforced in accordance with the laws of the State of Delaware, USA, excluding its conflict of law provisions. The UN Convention on Contracts for The International Sale of Goods, the Uniform Law on the Formation of Contracts for the International Sale of Goods, and any applicable international discovery and service of process conventions will be inapplicable.