Terms and Conditions of Sales
January 9, 2020
PERIGEE MEDICAL Standard Terms and Conditions of Sale In effect as of January 1, 2019:
- LIMITS OF AGREEMENT. The terms and conditions as set forth herein as well as any additional terms and conditions that may appear on the face hereof shall constitute the entire agreement between Perigee Medical LLC (“Seller”) and Buyer. Seller will not be bound by any terms of Buyer’s order that are inconsistent with the terms herein. Acceptance of Buyer of these terms may be made either (a) by written acceptance, or (b) by receipt by Buyer of delivery of any products described on the face of an order, quote, or invoice referring to these Terms and Conditions. The Agreement shall not be modified except in writing, signed by the parties hereto. No waiver by Seller of any default of provision hereof shall be deemed a waiver of any subsequent default or provision.
- PRODUCTS PROVIDED AND PRICE.
- The price of all Products unless otherwise specifically stated on the sales order, quote, or invoice hereof is F.O.B. carrier, at the place of manufacture, or warehouse location, at the PERIGEE Medical address in California, exclusive of insurance cost. The cost of packaging for normal domestic shipment is included in the invoiced price. Where special domestic or export packaging is specified, involving greater expense, a charge will be made to cover such extra expense.
- Prices and orders do not include Federal, State or local excise, sales, use or other taxes now or hereinafter enacted, which are applicable to the Products sold hereunder or this transaction (excluding only taxes based on Seller’s income), which tax or taxes will be added by Seller to and paid by Buyer when Seller has the legal obligation to collect the same and will be invoiced to and paid by Buyer, unless Buyer provides Seller with a proper tax exemption certificate. In the event Seller is required to pay any such tax, fee or charge at the time of sale or thereafter, the Buyer shall reimburse Seller therefore. Estimated sales tax may be included on the invoice to be corrected before payoff.
- Prices quoted are for the Products and services described on the face hereof only and do not include technical data, proprietary rights of any kind, patent rights, qualification, environmental or other than Seller’s standard tests.
- Unless otherwise stated by /seller in writing, all quotations are firm for, and expire, ten (10) days after date thereof and constitute offers
- Unless otherwise provided on the front of this form, products furnished hereunder shall be newly manufactured products but may contain components that have been previously in other new unused product units. Such components have been disassembled, reprocessed and reassembled, as appropriate, and meet or exceed the Seller’s specifications for newly manufactured components. Newly manufactured products may have been tested or demonstrated to establish satisfactory performance.
- PAYMENT TERMS
- Unless otherwise stated on the front of this form, the terms of the sale are balance due prior to shipment. Seller reserves the right to require alternative payment terms, including, without limitation, sight draft, letter of credit or payment in advance. All payments shall be made to Seller at its principal office in San Francisco, California, or such other office as designated on the face hereof. Interest accrues on overdue invoices at the rate of 1.5% per month, but not more than the amount allowed by law, on the unpaid balance from the original due date of the invoice. Payment shall not be withheld for delay in installation if at Buyer’s request, nor for delay in delivery or required documentation unless a separate price is stated therefore, and only to the extent of the prices stated.
- All orders are subject to, and the obligation of Seller to make deliveries is subject to, the right of the Seller as provided in paragraph 6, to require of the Buyer payment of all or any part of the purchase price in advance of delivery or to make shipment C.O.D. If the Buyer fails to make advance payment when requested by Seller, or if the Buyer becomes delinquent in the payment of any sum due Seller (whether or not arising out of this order) or refuses to accept C.O.D. shipment, then Seller shall have the right, in addition to any other remedy to which it may be entitled in law or equity, to cancel the sales order, refuse to make further deliveries, and declare immediately due and payable all unpaid amounts for goods previously delivered to the Buyer. Partial shipments made under any order shall be treated as a separate transaction and payment thereof shall be made accordingly. However, in the event of any default by Buyer, Seller may decline to make further shipments without in any way affecting its rights under such order.
- Seller reserves a purchase money security interest in the Products sold hereunder and the proceeds thereof, in the amount of the purchase price. In the event of default by Buyer on any of its obligations to Seller. Seller will have the right to repossess the goods sold hereunder without liability to Buyer. In such event, Buyer agrees to make the Products available to Seller so that Seller can repossess them without a breach of the peace. This security interest will be satisfied by payment in full. A copy of the invoice may be filed with appropriate authorities at any time as a financing statement and/or chattel mortgage to perfect Seller’s security interest. Buyer shall cooperate fully with Seller to execute such other documents and to accomplish such filings and/or recordings thereof as Seller may deem necessary for the protection of Seller’s interests in the Products furnished hereunder.
- TRANSPORTATION AND RISK LOST. Unless otherwise agreed to in writing by Seller, all transportation shall be at the expense of Buyer, Seller reserving the right to ship Products freight collect and to select the means of transportation and routing. Unless otherwise advised, Seller may insure to full value of the Products or declare full value thereof to the transportation company at the time of delivery and all such freight and insurance costs shall be for Buyer’s account. Risk of loss or damage shall pass to Buyers upon delivery of the Products to the transportation company at the FOB point, whether or not installation is provided by or under supervision of Seller. Seller may at its option obtain insurance for it’s Products covering their delivery to Buyer and Buyer agrees to reimburse Seller for the cost of providing such insurance. If buyer has not been notified of the existence of insurance coverage and provides their own insurance for such shipment Seller will waive their insurance charge. Confiscation or destruction of, or damage to Products shall not release, reduce or in any way affect the liability of Buyer therefore. Notwithstanding any defect or nonconformity, or any other matter, such risk of loss shall remain in Buyer until the Products are returned at Buyer’s expense to such place as Seller may designate in writing. Buyer, at its expense, shall fully insure Products against all loss or damage until Seller has been paid in full therefore, or the Products have been returned, for whatever reason to Seller.
- SHIPMENT. Seller will attempt to meet shipment schedules. However, any shipment quotation or forecast on an order acknowledgement is only an estimate of the time required to make shipment and Seller will not assume liability, consequential or otherwise, because of any delay or failure to deliver all or any part of any order for any reason, including its active or passive negligence. Seller reserves the right to allocate inventories and current production in any way it deems desirable.
- INSPECTION AND ACCEPTANCE. The Buyer shall have the right to inspect the goods upon tender of delivery. Failure of the Buyer to inspect the goods and give written notice to the Seller of any alleged defect or nonconformity within ten (10) days after tender of delivery shall constitute an irrevocable acceptance by Buyer of the goods delivered to him; provided that goods for which Seller agrees in writing to provide installation by its personnel, shall be deemed accepted by Buyer of the goods delivered to him; upon completion by Seller of its applicable acceptance tests or execution of Seller’s acceptance by Buyer. Notwithstanding the foregoing, use of any such goods by Buyer, its agents, employees or licensees, for any purpose after delivery thereof, shall constitute acceptance of goods by Buyer.
- The Products may not be returned to Seller without first obtaining Sellers consent. The requests for return and credit must be filed with and shall include purchase order number, approximate date shipped and any and all other identifying numbers (such as invoice number, date of invoice, P.O. numbers, etc). Each request for return of Products for credit should state the type and quantity of goods, the part numbers and the reasons for the return. If return authorization is granted, Products shall be returned in a clean, well-‐packaged condition. No credit allowance on defectives will be made and no replacement for defectives will be shipped in any event, unless the alleged defectives are, among other things, established to Seller’s satisfaction after suitable testing and inspection by Seller.
- Returns from Rentals or loaned times must include all non-consumable accessories. Allowance will be made for normal wear and tear of the rental period. Renter agrees that all damage other than that covered under warranty will be charged to the Renter from credit authorization on file or deducted from any deposit. Renter agrees that consumable items cannot be returned for credit.
- TERMINATIONS. Any order for a standard Product with a published price accepted by Seller and terminated by Buyer within 10 days prior to shipment, may be subject to a termination charge of not less than ten percent (10%) of the order value to cover costs or processing and order-handling; thereafter no such order may be terminated except by mutual agreement in writing. No order for non-‐standard products or products without a published price may be terminated by Buyer except by mutual agreement in writing. Terminations by mutual agreement are subject to the following conditions:
- Buyer will pay, at applicable contract prices, for all Products that are completely manufactured and allocatable to Buyer at the time of Seller’s receipt of notice of termination;
- Buyer will pay all costs, direct and indirect, which may have been incurred by Seller with regard to Products which have not been completely manufactured at the time of Seller’s receipt of notice of termination, plus a pro rata portion of the normal profit on the contract;
- Buyer will pay a termination charge on all other Products affected by the termination.Seller’s normal accounting practices shall be used to determine costs and other charges. To reduce termination charges, Seller will divert completed parts, material or work-‐in-‐ progress from terminated contracts to other customers whenever, in the Seller’s sole discretion, it is practicable to do so. In the event of a termination, Buyer will have no rights in partially completed goods.
- SELLER’S RIGHTS TO SUBCONTRACT. Seller may subcontract any portion of the work on any item subject to this Agreement, but Seller’s obligations and rights hereunder shall not thereby be limited or affected.
- BANKRUPTCY OR INSOLVENCY OF BUYER. If the financial condition of the Buyer at any time is such as to give Seller in its judgment, reasonable grounds for insecurity concerning Buyer’s ability to perform its obligations under this agreement, Seller may:
- by notice in writing to Buyer, cancel this agreement, without judicial intervention or declaration of default of Buyer and without prejudice to any right or remedy which may have accrued or may accrue thereafter to Seller,
- require full or partial payment in advance and suspend any further deliveries (or continuance of the work, to be performed by Seller) until such payment has been received or
- make shipments C.O.D.
- EQUAL OPPORTUNITY. Perigee Medical LLC certifies that it has developed and has on file affirmative action programs as required by the rules and regulations of Executive Order 11246, as amended, and 41 C.F.R. Chapter 60-‐2.2, issued by the Department of Labor. In addition, Perigee Medical LLC is in full compliance with section 503 of the Rehabilitation Act of 1973 and section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974.
- ERRORS. Stenographic and clerical errors are subject to correction.
- APPLICABLE LAW; JURISDICTION AND VENUE. The laws of the State of California will govern this agreement (or, if there is exclusive federal jurisdiction, the United States District Court for the Northern District of California) will have exclusive jurisdiction and venue over any dispute arising out of this agreement, and Buyer hereby consents to the jurisdiction of such courts.
- LIMITATION OF LIABILITY.
- Seller will not be liable for any loss, damages or penalty resulting from delay in delivery of the Products when such delay is due to causes beyond the reasonable control of Seller, including without limitation, supplier delay, fore majeure, act of God, labor unrest, fire, explosion or earthquake. In any such event, the delivery date will be deemed extended for a period equal to the delay.
- SELLER’S LIABILITY UNDER, FOR BREACH OF, OR ARISING OUT OF THIS AGREEMENTAND/OR SALE WILL BE LIMITED TO REPAIR OR REPLACEMENT OF ANY DEFECTIVE PRODUCTS OR A REFUND OF THE PURCHASE PRICE OF THE PRODUCTS, AT SELLER’S SOLE OPTION. AS SET FORTH IN PARAGRAPH 9 ABOVE, IN NO EVENT WILL SELLER BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTED PRODUCTS BY BUYER, NOR WILL SELLER BE LIABLE FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT) WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR OTHERWISE. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD-PARTY CLAIMS AGAINST BUYER. The foregoing shall not eliminate or otherwise limit Seller’s responsibility for damages resulting from its negligence. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF SELLER ARISING OUT OF THIS AGREEMENT AND/OR SALE.
- SUBSTITUTIONS AND MODIFICATIONS. Seller will have the right to make substitutions and modifications in the specifications of Products sold by Seller, provided that such substitutions or modifications will not materially affect overall Product performance and materials shall be of equal or better quality.
- ATTORNEY’S FEES AND COSTS. In the event of litigation involving the enforcement or interpretation of this agreement, parties agree to pay their own costs of litigation.