Purchase Order Terms and Conditions
1) DEFINITIONS. “Buyer” or “Lumenis” means Lumenis Ltd. or any of its subsidiaries or affiliates. “Seller” means the person, firm or company to whom the order is addressed. The “Order” means the purchase order to which these terms and conditions are attached, including any other attachments. “Goods” means all required materials, supplies, articles, goods, products, services and/or other deliverables constituting the subject matter of the Order. “Laws” means any laws, ordinances, regulations, standards, permits, certificates, licenses and government approvals and inspections, including, without limitation, those specified in Section 22 herein. “Export/Import Laws” means, collectively, all export/import (including re-export) laws, sanctions, regulations, orders, and authorizations, (including without limitation the Export Administration Regulations (EAR), International Traffic in Arms Regulations (ITAR), and the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) that are applicable to the export or import of goods, software, technology, or technical data or services. “Disposables Regulations” means, “RoHS” (EU Directive 2002/95/EC on Restriction on the use of certain Hazardous Substances in electrical and electronics equipment); “WEEE” (EU Directive 2002/96/EC on Waste Electrical and Electronic Equipment); “REACH” (EC Regulation No 1907/2006 on Registration, Evaluation and Authorization of Chemicals); EU Member States’ implementations of the foregoing; or other laws and regulations dealing with recycling or disposal of materials or equipment.
2) GENERAL. (a) This Order is placed, subject only to the terms and conditions included herein and any statement of work, plans, specifications, and other documents, to the extent the same are incorporated by reference on the face of this Order. The reference to any proposal from Seller (if any), is only for the purpose of specifying basic information concerning price, the description of the Goods, quantities, terms of payment and delivery and then, only as such terms are consistent with the terms and conditions herein. In the event of contradiction between these general terms and conditions and specific provisions on the face of the Order, or specific contract/agreement between the Parties, the specific provisions shall prevail. (b) Any of Seller’s terms and conditions which are in addition to or are construed as proposals for addition to this Order are hereby rejected and will not be binding unless agreed to in writing by the Buyer and appear on the Order or in its referenced attachment. (c) The earliest of the following shall constitute acceptance by Seller of these Order terms and conditions: (i) Seller’s commencement of performance under this Order, or (ii) Seller returns a signed acknowledgement of this Order, or (iii) Seller accepts any payment for the Goods or any part thereof.
3) REPRESENTATIONS. Seller represents and warrants that: (a) it has the right to enter into this Order; (b) its performance of this Order will comply, at its own expense, with the terms of any Laws to which it is or becomes subject; (c) no lien or action exists or is threatened against Seller that would interfere with Buyer’s use or sale of the Goods; and (d) the Goods are sold to Buyer free and clear of any liens, claims or encumbrances.
4) SPECIFICATION OF GOODS. Goods are to be supplied complete in all respects in accordance with the Order and in compliance with any applicable Laws. The Buyer may refuse to accept any Goods delivered which are not in accordance with original specifications or modified specifications agreed between the Buyer and the Seller in writing and/or not in compliance with the applicable Laws and/or manufactured from materials not in compliance with the applicable Laws. In such case the Buyer shall have the right to return the goods and/or withhold payment for same. Notwithstanding the above, Buyer may request Seller to promptly replace, if necessary, by most expeditious manner, such Goods, to Goods conforming to the proper and agreed specifications and/or standards in accordance with this Order. All charges, including transportation expenses for such replacement, are to be borne by the Seller. In such event, the Seller may request the Buyer to return the Goods incorrectly supplied, but in all cases the Seller shall bear all expenses involved including any repackaging and/or transportation charges. Should the Seller elect not to have such Goods returned, the Buyer may dispose of them in any manner deemed suitable by the Buyer. Should the Seller fail to promptly replace the Goods incorrectly supplied, with Goods of the proper and agreed specifications, or to make alternative arrangements mutually agreed upon in writing between the Buyer and the Seller within a reasonable time, the Buyer, at its option, may require the Seller to indemnify the Buyer for all losses or damages resulting therefrom, including without limitation, costs incurred by Buyer for the replacement or correction of such Goods. The foregoing is in addition to any other rights Buyer may have in contract or at law. Seller shall not again tender rejected or corrected Goods unless Seller discloses the former tender and rejection or requirement of correction.
5) FACILITIES AND SPECIAL EQUIPMENT. The Seller confirms that it now has, or can readily obtains, without assistance of the Buyer, all facilities tools and special equipment necessary for the timely performance of this Order. Special dies, tools, molds, patterns and the like used in manufacture of the Goods herein ordered shall be furnished by and at the expense of the Seller, unless otherwise agreed in writing with the Buyer.
6) BUYER FURNISHED PROPERTY AND/OR MATERIALS. Any materials and/or property furnished by the Buyer, on other than a charge basis, in connection with this Order, will be deemed loaned to the Seller for purposes of the Order only and title thereto shall at all times remain with the Buyer. Seller agrees to fully compensate Buyer for such materials and/or property which are not returned to Buyer either as originally loaned (except for reasonable wear and tear due to the utilization of the same in accordance with the provisions of this Order and for the purpose of this Order only) or as an integrated part of Goods ordered. Seller agrees to procure a policy or policies of insurance satisfactory to the Buyer, insuring all Buyer’s owned and supplied property and/or materials while on Seller’s premises, against loss or damage. However, the procurement of such policies shall not be deemed as releasing the Seller from its responsibilities with respect to the property of the Buyer.
7) PACKING MARKING AND SHIPPING. Unless the Seller advises the Buyer in writing to the contrary, the prices quoted by the Seller shall include the packing of the Goods in containers suitable for export via air, sea or ground freight (as applicable), as well as labelling and marking in accordance with Buyer’s requirements and delivery in accordance with the Order. Seller further agrees to bear transportation charges as per the applicable Incoterms. Seller will dispatch the Goods to the authorised shipper as per Buyer instructions appearing on the face of the Order.
8) INVOICES AND SHIPPING DOCUMENTS. With each shipments of Goods, Seller will include packing lists and invoices that will show the type and quantity of the Goods, Buyer’s order number and line item number and manufacturer’s parts numbers. One copy of the packing list must be attached to the outside of the package, and an additional copy should be placed inside the same package. Two copies of invoice (one of which should be signed original) and two copies of the packing list must be attached to airway or transportation documents accompanying shipment. One signed copy of the invoice and one copy of the packing list should also be sent via fax or e-mail directly to Buyer’s purchasing department. Failure to comply with the above will delay identifying shipments at customs, thus delaying payment by Buyer to Seller.
9) INSPECTION AND TESTING. (a) Buyer or the duly appointed representatives of the Buyer shall be entitled upon reasonable advance notice to Seller to inspect and test the Goods to be supplied, both during and after manufacture, whether at the Seller’s facilities or at the premises of any of its subcontractors. Such inspection shall in no way relieve the Seller of its responsibilities under this Order. Any Goods rejected shall be replaced at the Seller’s expense. (b) Buyer, at its sole discretion, may employ either 100% inspection or a sampling plan approved by Buyer. Lots which fail to pass such sampling plan may be subsequently 100% inspected by Buyer. Seller will be charged for all such inspection costs. (c) In addition to inspection and testing at Seller’s facility, all Goods ordered are subject to Buyer’s final incoming inspection and approval, after delivery to Buyer’s facilities. Lots which fail to pass incoming inspection test, will be returned to Seller. Rejected Goods or lots which are returned, shall be returned at Seller’s risk and expense for prompt correction and/or replacement, free of charge or for refund, at Buyer’s sole discretion. Exercise of these remedies shall not be exclusive and shall be in addition to any other remedies provided by law or equity which are available to Buyer. Notwithstanding prior payment, it is expressly agreed that payment shall not constitute final acceptance of the Goods by Buyer. (d) Seller shall maintain an effective quality assurance system for control of material quality, assembly, testing, packaging and shipping, and routines for quality verification and corrective actions which is acceptable to the Buyer and/or its customer. Unless otherwise stated on the face of this Order, such quality assurance system shall be in accordance with the requirements of most updated ISO 13485 and CAN/CSA ISO13485 (as applicable). As part of the quality requirements for Goods, Seller will include a Certificate of Compliance (COC) and/or a Certificate of Testing (COT) with each lot of Goods; (e) Seller shall not subcontract any manufacturing processes to any third party without prior approval by Buyer. (f) Seller shall keep all drawings and documents relevant to this Order for a period of seven (7) years from the last delivery.
10) CHANGES. Buyer, at any time, by written change order, may make changes to this Order, including quantities or delivery dates of Goods. If the cost or delivery time is increased or decreased as a result of such change orders, an equitable adjustment in the Order price and/or delivery schedule will be made in the change order. If a price and/or delivery adjustment is not included in the change order, no increase in price or delay in delivery will be allowed. Any claim or challenge by Seller with respect to such adjustment or non-adjustment must be asserted by Seller in writing within 30 days from the date of the change order. This Order shall not be deemed or construed to be modified, amended, cancelled or waived, in whole or in part, except by a written change order hereto signed by the Buyer’s authorised representative and nothing contained in this section shall excuse Seller from proceeding with the change order. Any major change in Seller’s production processes or any other process regarding the Goods, such as: change in production site location, design changes, replacement of major subcontractor, change in one or more production processes, change that affect the Goods FFF (fit, form and function), requires the prior written approval of Buyer.
11) DELIVERY. (a) The terms of delivery are EXW (Incoterms 2010) Seller’s facilities, unless otherwise stated on the face of this Order. (b) If Seller’s deliveries fail to meet the delivery dates specified herein and as a result Buyer requires and Seller makes express and/or air shipments, partial shipments, or both, then Seller agrees to assume all resulting excess shipping charges. Invoices covering Goods shipped in advance of requested delivery schedules will not be paid until their normal maturity after the date specified for delivery. (c) Without derogating from Buyer’s rights under this Order, or in accordance with the law as provided in article 22 herein, Buyer may, at its sole discretion, cancel this Order in whole or in part, where there is a delay in delivery for any reason, and in such case Seller shall have no right to claims against the Buyer for cancellation or any other charges. (d) Seller hereby acknowledges that the time of delivery under the Order is of the essence and that the Goods ordered are intended to be combined with other products and Goods the Buyer supplies to its customers. Therefore Seller hereby agrees to indemnify Buyer for any losses and/or damages and/or expenses incurred by Buyer due to any delay by Seller in supplying the Goods. Delivery ahead of the schedules herein specified is subject to prior written approval by Buyer. (e) Title to the Goods shall pass to Buyer, free of all liens, claims and encumbrances, upon delivery thereof in accordance with the provisions of this Order.
12) WARRANTIES. By acceptance of the Order Seller warrants all Goods supplied for a period of eighteen (18) months, except for latent defects, (unless otherwise is specified in writing in this Order) from the date of receipt of the applicable Goods by the Buyer at its warehouse, against any defect which may arise due to faulty design, workmanship, material or performance. Any defective item will be promptly replaced by Seller without cost to Buyer, and the warranty terms renewed for items replaced. The defective items will be held at the disposal of Seller for return and replacement at its expense. Upon Buyer’s request, Seller shall promptly provide Buyer with a “return of material authorization” number (RMA). If Seller fails to provide such RMA, it shall be deemed as Seller’s default.
13) INTELLECTUAL PROPERTY INDEMNIFICATION. Seller agrees to indemnify and holds Buyer, Buyer’s customers and their representatives, directors, officers, employees and agents (hereinafter the “Indemnitees“) harmless against any loss, damage or liability (including any costs and/or expenses incidental thereto) incurred on account of any infringement of any patent or other proprietary rights with respect to any Goods furnished under this Order, provided that such Goods are not manufactured solely pursuant to a design furnished to Seller by Buyer. Seller also agrees that it will, at its own expense, defend the Indemnitees against any action, suit or claim in which infringement is alleged. Buyer shall notify Seller as to such suit or claim, as soon as practicable, provided, however, that failure to notify will not relieve Seller from its indemnification obligations, except to the extent Seller’s rights and remedies were prejudiced by such failure. In case the Goods or any part thereof, are held to constitute an infringement or the use of the Goods or any part thereof is enjoined, Seller shall, at its own expense, either (1) procure for Buyer the right to continue using the Goods or any part thereof, (2) replace same with non-infringing Goods or parts thereof without impacting the form, fit or function of the Goods, or (3) modify the Goods so that they becomes non-infringing. Seller shall not be liable to Buyer only if the Seller proves that any infringement or claim thereof is based upon the use by Buyer of the Goods in combination with other items where such infringement or claim thereof would not have occurred from the normal use for which the Goods were designed.
14) LIMITATION OF LIABILITY. TO THE FULLEST EXTENT ALLOWABLE BY LAW, IN NO EVENT SHALL BUYER BE LIABLE UNDER ANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF THIS ORDER (INCLUDING ANY THEORY OF CONTRACT, TORT OR STRICT LIABILITY) FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOST REVENUE OR PROFITS, ATTORNEY’S FEES, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), EVEN IF BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15) PROPRIETARY RIGHTS, RIGHTS IN DATA AND CONFIDENTIALITY. (a) Where performance under this Order includes experimental, developmental, or research effort or non-recurring engineering work, including tooling, and such effort or work is paid for in whole or in part by Buyer, Seller agrees to disclose to Buyer all confidential processes and/or know-how and/or trade secrets and/or any invention, discovery, proprietary information and/or any tooling resulting therefrom, and all patents, copyright, trade secrets, trademarks, or other intellectual property resulting therefrom shall be the sole property of the Buyer and Seller hereby assigns to Buyer each invention and proprietary rights resulting therefrom, including without limitation any patent or patent application, without additional charge. Seller shall provide support for Buyer’s prosecution of such patent application. Buyer shall have the full right to use such property in any manner without any claim on the part of the Seller and without any duty to account to the Seller for such use. (b) Seller agrees that all information disclosed by Buyer to Seller, including without limitation information contained in drawings, specifications, or other documents, software or other items, which are submitted by Buyer to Seller under or pursuant to this Order, is proprietary to Buyer (hereinafter the “Proprietary Information“). Seller undertakes not to use such Proprietary Information, in whole or in part, except for the fulfilment of this Order, unless the Buyer otherwise approves in advance in writing, Proprietary Information shall not include information which the Seller can prove by evidence in writing to be in the public domain, other than through the fault or negligence of Seller, or which is known to Seller at the time of its disclosure without obligation of confidence, or is rightfully obtained without restriction by the Seller from a third party. Seller shall not disclose the Proprietary Information to any third party, and shall take all reasonable precautions to prevent the disclosure of the Proprietary Information to third parties. Receipt by Seller hereunder of Buyer’s Proprietary Information shall not be deemed as a grant of any right or license to Seller with respect to such information. Upon the completion and/or termination of this Order, Seller shall immediately return to Buyer the Proprietary Information and all copies thereof, or pursuant to Buyer’s request, destroy such Proprietary Information, and provide Buyer a written certificate of destruction. (c) Any advertising of this Order or any news release relating thereto or otherwise relating to Buyer or the use of Buyer’s trademarks and trade names (including the Goods supplied hereunder and pictures, descriptions or samples thereof) by Seller is prohibited, except with Buyer’s prior written approval. (d) The provisions of this Section 15 shall survive the completion and/or termination of this Order and continue to be in full force and effect for a period of ten (10) years thereafter.
16) TERMINATION. (a) Buyer reserves the right to terminate this Order, or any part hereof, and to cancel all or any part of the undelivered portion of this Order if Seller does not make deliveries as provided in this Order or if Seller otherwise breaches any of the terms hereof, including Seller’s warranties. In addition to the aforesaid Buyer shall have the right to terminate this Order or any part thereof, and cancel all or any part of the undelivered portion, in the event of the occurrence of any of the following: (i) insolvency of Seller, and/or (ii) filing of an involuntary petition to have Seller declared bankrupt, (provided it is not cancelled within thirty days from date of such filing), and/ or (iii) upon the granting of a winding-up or similar order in respect of the Seller, or if a temporary or permanent liquidator or receiver is appointed in respect of the Seller, or if a temporary or permanent attachment Order is granted on all Seller’s assets, or a substantial portion thereof, (provided such order or appointment is not cancelled within 30 days of the grant of such Order or the date of such appointment), and/or (iv) the execution by Seller of any assignment for the benefit of its creditors and/or (v) if the Seller passes a resolution for its voluntary winding-up. Buyer shall have no obligation to Seller in respect to the cancelled portion of this Order. Buyer’s liability shall be limited to payment for the delivered and accepted portion of this Order which is usable by Buyer at the rate specified on the face hereof (reflecting quantity prices as though this Order had gone to full completion). If as a result of default of performance by the Seller, this Order is terminated in whole or in part and it is necessary to procure any of the specified Goods elsewhere, then Seller shall be liable for any re-procurement charges which exceed the amount which would have been due to the Seller if it had satisfactorily completed this Order. These remedies shall be cumulative and additional to any other remedies available to Buyer in law or in equity. (b) Buyer may, for its convenience, terminate work under this Order, in whole or in part, at any time, by giving notice to Seller in writing. Seller will thereupon immediately stop work on this Order, or the terminated portion thereof, and notify any subcontractors to do likewise. Seller shall be entitled to reimbursement for its actual costs and non-cancellable commitments incurred up to and including the date of termination, provided that such costs are justified considering the relative point in time of the order execution and that title to completed and partially completed Goods, including any material required, are transferred to Buyer. Such costs and non-cancellable commitments will be determined in accordance with generally accepted accounting principles applicable to the Buyer, based on written evidence and documentation to be provided by Seller. Seller shall also be entitled to a reasonable profit on the work done prior to such termination at a rate not exceeding the rate used in establishing the original purchase price. The total of such claim shall not exceed the order price for the pro-rata portion of this Order which is cancelled, reduced by amounts previously paid to Seller hereunder.
17) PRICES. Unless otherwise specified in this Order, prices indicated in the Order are firm, fixed and final, not subject to any change or escalation and inclusive of all taxes, fees and levies.
18) PAYMENT TERMS. Payment terms shall be as agreed between Buyer and Seller and as specified in writing in the Order.
19) INDEMNITY. Seller shall indemnify and hold harmless the Indemnitees from and against all claims, judgments, liabilities, losses, injuries and damages of every and/or any nature, including without limitation, in respect of injuries or death to persons or damages to property (including all costs and expenses incidental thereto), caused by (i) the acts or omissions to act by the Seller, its officers, employees, agents, invitees or vendors, directly or indirectly arising out of the performance of this Order or any act or failure to act by subcontractors or suppliers of the Seller and/or (ii) the Goods delivered hereunder and/or (iii) the violation by Seller or its subcontractor(s) or their respective officers, employees, agents, invitees or vendors of the terms and conditions of this Order or any applicable laws, acts or regulations.
20) ASSIGNMENT. Seller shall not be entitled to assign its rights and obligations under this Order without Buyer’s prior written consent. Buyer is entitled to freely assign all or any part of rights under this Order to any parent, subsidiary or associated company.
21) TAXES. Buyer shall not be liable under or in connection with this Order for any governmental, municipal or other taxes, duties, levies and/or compulsory payments.
22) COMPLIANCE WITH LAWS. Seller and all persons controlled by Seller shall at all times comply, at their expense, with all applicable Laws. Upon request, Seller shall provide Buyer with reasonable documentation demonstrating such compliance, and Seller further agrees to indemnify, defend and hold harmless Buyer from and against any loss or expense arising from Sellers’ noncompliance with any applicable Laws. Without limiting the foregoing, Seller will comply with the following:
(i) Anti-Corruption/ Anti-Bribery- Seller shall comply with all applicable Laws relating to anti-corruption or anti-bribery, including, as applicable to Seller, but not limited to legislation implementing or the organization for Economic Co-operation and Development “Conventions on Combating Bribery of Foreign Public Officials in International Business Transactions” or other anti-corruption/anti-bribery convention, the Foreign Corrupt Practices Act, as amended (FCPA)and will not, directly or indirectly, pay, offer, give, or promise to give, anything of value to a non-U.S. public official or any person in violation of the FCPA and/or any applicable Laws relating to anti-corruption or anti-bribery. (ii) Import/ Export Compliance. In performing the obligations under this Contract, each party shall at all times comply with all Export/Import Laws. The party conducting the export or import shall obtain all export or import authorizations which are required under the Export/Import Laws for such party to execute its obligations under this Contract. Each party shall reasonably cooperate and exercise reasonable efforts at its own expense to support the other party in obtaining any necessary licenses or authorizations required to perform its obligations under this Contract. Reasonable cooperation shall include providing reasonably necessary documentation, including import, end user and re-transfer certificates. (iii) Conflict Minerals, as defined in the U.S. Dodd-Frank Wall Street Reform. Seller shall use due diligence to comply with Conflict Minerals legal requirements. Conflict Minerals include gold (Au), tantalum (Ta), tungsten (W) and tin (Sn) sourced from areas identified as conflict regions, including the Democratic Republic of the Congo (DRC) and Central Africa. Seller represents and warrants that no Conflict Minerals that originated in the DRC or an adjoining country are present in any Product. For the purposes of making such representation and warranty, Seller will use due diligence protocols, standards, and procedures that meet or exceed the reasonable country of origin inquiry described in the SEC rules and the relevant best practices developed by industry. Seller shall further assist Buyer with any requests for information, certifications, or other similar documents as Buyer may reasonably request to ensure Goods’ and Seller’s compliance with this Section and shall notify Buyer promptly upon discovering or having reason to believe that any Goods fails to comply with the representation and warranty in this Section. (iv) Disposal Regulations. For any Goods subject to Disposal Regulations, Seller: (a) represents and warrants that such Goods are correctly labeled in accordance with the Disposal Regulations; (b) agrees to assist Buyer, as necessary in Buyer’s reasonable opinion, to comply with its obligations, if any, under the Disposal Regulations; and (c) agrees to assume responsibility for taking back and disposing of Goods in the future upon the request of Buyer or its customer in accordance with the Disposal Regulations. No additional charges will be due to Seller from Buyer for Seller’s agreement to undertake these responsibilities.
23) DISPUTES. Seller hereby agrees that all disputes between the Parties hereto which cannot be settled by agreement between the Parties shall be subject to the exclusive jurisdiction of the competent court in the location (country, state, city, county or province, as the case may be) of the main place of business of the Buyer’s entity issuing this Order and in accordance with the Laws applicable in the location of such court.
24) PROHIBITED SOFTWARE. (a) This clause only applies to Goods that includes the delivery of software. (b) As used herein, “Prohibited License” means the general public license (“GPL“) or lesser/library GPL, the artistic license (e.g., Perl), the Mozilla public license, the Netscape public license, the sun community source license, the sun industry standards license, or variations thereof, including without limitation licenses referred to as “GPL-compatible, free software license. (c) “Prohibited software” means software that incorporates or embeds software in, or uses software in connection with, as part of, bundled with, or alongside any (1) open source or “free” software, library or documentation, or (2) software licensed under or subjects the software to a prohibited license, or (3) software provided under a license that requires the delivered software to be licensed for the purpose of making derivative Goods or be redistributable at no charge, or obligates Buyer to make available in any way or accessible to any third party the delivered software, in any format, or any portion thereof, any products and/or object code and/or source code formats incorporating the delivered software. (d) Unless Seller has obtained Buyer prior written consent, which Buyer may withhold in its sole discretion, Seller shall not use in connection with this Order, or deliver to Buyer, any prohibited software. Seller agrees to defend, indemnify, and hold harmless Buyer, its customers and suppliers from and against any claims, damages, losses, costs, and expenses, including reasonable attorney’s fees, relating to use in connection with this Order or the delivery of prohibited software.
25) COUNTERFEIT MATERIEL prevention. Seller represents and warrants by acceptance of the Order and certifies with each shipment of deliverables that only new and authentic materials will be used and they contain no Counterfeit Materiel. Seller shall only purchase authentic materials/components directly from the OEM’s/OCM’s or through the OEM’s/OCM’s authorized or franchised distribution chain. Seller further represents and warrants that it has (or will have) and will make available to Buyer, at Buyer’s request, all acquisition/procurement documentation from the OEM/OCM or their authorized or franchised distribution chain that authenticates traceability of each part, component, module or assembly of Seller’s products or goods back to the applicable OEM/OCM. For purposes of this paragraph, “Counterfeit Materiel” shall mean a part, component, module, or assembly or Goods whose origin, material, source of manufacture, performance, or characteristics are misrepresented. The term “Counterfeit Materiel” includes, but is not limited to, (a) parts that have been (re)marked to disguise them or falsely represent the identity of the manufacturer, (b) defective parts and/or surplus material scrapped by the original manufacturer, (c) previously used materiel pulled, repaired or otherwise reclaimed and provided as “new” or (d) materiel that have reached a design life limit.
If Counterfeit Materiel are furnished under this Order, Buyer shall have the right to act in accordance with the law including, impounding and destroying the materiel. Seller shall be liable for all costs related to the materiel impounding, destroying, removal and replacement. Buyer reserves the right to withhold payments for said materiel. Buyer also reserves the right to report and to turn over such Counterfeit Materiel to the relevant authorities. Seller shall include the terms of this article in its subcontracts to the extent relevant.
26) MISCELLANEOUS. (a) Failure of Buyer to enforce its rights under this Order shall not constitute a waiver of such rights or of any other rights under this Order or otherwise. Buyer’s rights and remedies specified herein shall be cumulative and in addition to any other rights and remedies available in law or equity. (b) The invalidity, in whole or in part, of any provision hereof shall not invalidate or otherwise affect the validity of any other provision. (c) Seller represents and warrants that this Order shall be performed by it as an independent contractor and that no employer-employee relationship shall exist in connection therewith. (d) Seller shall include this Order terms and conditions, to the extent relevant, in its subcontracts. (e) Unless otherwise agreed to in this Order, all documentation, labels, drawings, letters, and communications of any kind will be presented in the English language. (f) Buyer has the right to set-off any amounts owed to it by Seller against any amounts payable under this Order. (g) Acceptance of this Order by Seller shall deemed to be an acknowledgment by Seller that there are no end-use limitations with respect to the Goods. (h) Non-performance of either party shall be excused only to the extent that performance is rendered impossible by fire, flood, earthquake, governmental acts or orders, or other force majeure events which are beyond the reasonable control and is not caused by the negligence of the non-performing party.
27) NOTICES. Notices required or desirable to be sent to either party hereunder, shall be sent by first class pre-paid air mail or by facsimile and by e-mail, to the address or facsimile number of the relevant party as indicated on the Order, and to the attention of the contact person indicated on the Order, to the extent indicated.
Terms and Conditions of Sale
LUMENIS TERMS AND CONDITIONS OF SALE
1. Sale. When the Lumenis Sales Quotation (the “Quote”) to which these Terms and Conditions are attached is signed by Buyer, then this Purchase Agreement (this “Agreement”) shall be a binding contract for the purchase and sale of the products and/or services described in the Quote (collectively, the “Equipment”). This Agreement consists of the Quote and these Terms and Conditions. Any inconsistent terms and conditions on Buyer’s order, acknowledgement form or other forms or documents shall not apply.
2. Prices and Payment. All prices are subject to change in the event of untimely payment by Buyer. Payment is due net 30 days of invoice. Accounts 30 days or more past due shall accrue interest at the rate of 18% per annum or, if less, the maximum rate permitted by law. Deposits are non-refundable. In the event Buyer fails to make timely payment, the warranty described below shall be void and of no effect. In addition, Buyer shall reimburse Lumenis for all costs of collection, including payments to collection agencies as well as attorney fees and court costs.
3. Security Agreement. To secure the purchase price, Buyer hereby grants Lumenis a purchase money security interest in the Equipment, and the proceeds of any sale thereof. Buyer grants Lumenis a limited power of attorney coupled with an interest to execute financing statements or to take any other action on Buyer’s behalf necessary or appropriate to perfect the security interest granted herein. Buyer unconditionally agrees to execute such additional documents as may be necessary to enforce or protect Lumenis’ interests.
4. Taxes and Other Charges. Buyer shall pay all taxes, fees, duty, levy, or charges imposed by any governmental authority. Applicable sales taxes will be invoiced unless Buyer supplies a valid tax-exempt certificate prior to delivery.
5. Delivery and Claims. For all purposes of this Agreement, title and risk of loss shall pass to Buyer, and delivery shall be deemed completed, upon Lumenis’ tender of the Equipment to a common carrier. All shipments are fully insured for the benefit, and at the expense, of Buyer. In the event of loss or damage in transit, Buyer’s payment obligations will not be affected and Lumenis will act as Buyer’s agent in making any necessary insurance claim. All delivery dates are approximate. Lumenis will deliver in one shipment when possible, but reserves the right to make delivery in installments, if necessary.
6. Changes to Equipment. If the design of the Equipment is changed prior to shipment, Lumenis shall notify Buyer. Buyer shall have three (3) business days from the date of such notification to cancel delivery of the changed Equipment and receive a refund of any money paid to Lumenis for the changed Equipment. The foregoing shall be Buyer’s sole remedy for any change to the Equipment prior to shipment and Lumenis shall have no other liability whatsoever for any such change.
7. Software License. Lumenis grants to Buyer a limited, non-transferable, royalty-free and non-sublicensable license to use the software embedded in the Equipment (the “Software”). Any associated documentation provided hereunder by Lumenis to Buyer is solely for Buyer’s internal use in connection with the Equipment purchased hereunder. Buyer shall not make any copies of the Software. The sole remedy for breach of this Section shall be as set forth in Section 9.
8. Inspection; Returns. Partial shipment by Lumenis is not a basis for a non-conformity claim. Within ten (10) days of receipt of the Equipment, Customer shall inspect the Equipment, read the owner’s manual and accompanying documentation and give written notice of any error or claim that the Equipment does not conform to the Quote. Customer’s sole remedy is set forth in Section 9, below. Purchase orders may not be cancelled after shipment and Equipment may not be returned without Lumenis’ prior written consent. A Return Material Authorization (“RMA”) will be provided by Lumenis for any Equipment to be returned. Accepted returns are subject to the charges, terms and requirements notified in writing to Customer (which may include, without limitation, a 15% restocking fee). No act by Lumenis (including receipt of returned Equipment) shall constitute Lumenis’ acceptance of the returned Equipment unless Lumenis previously provided an RMA.
9. Limited Warranty. Lumenis warrants that the Equipment (excluding consumable or disposable components or accessories such as heads and fibers, which will be subject to the warranty terms, if any, included therewith) will be free from defects in materials and workmanship and will conform in all material respects to Lumenis’ technical specifications. The foregoing limited warranty shall continue for a period of time which is the shorter of (a) fifteen (15) months from the date of Buyer’s receipt of the Equipment or (b) twelve (12) months from the date of installation if the Equipment requires installation or from the date of Buyer’s receipt of the Equipment if the Equipment does not require installation. During the warranty period, Lumenis shall repair or replace the Equipment at Lumenis’ sole option. Such repair or replacement shall be Lumenis’ sole obligation and Buyer’s sole remedy hereunder, and shall be conditioned upon Lumenis receiving written notice of such claimed defect within ten (10) days after its discovery and, at Lumenis’ option, return of the Equipment to Lumenis, F.O.B. Lumenis’ facility. The foregoing limited warranty shall be void and of no effect if: (a) anyone other than Lumenis or a person acting on Lumenis’ express or written instructions, removes Equipment casing or makes or attempts to make any modifications, repairs, attachments or additions to the Equipment or installs or moves Equipment for which installation is required by Lumenis; (b) the Equipment is not maintained or operated in accordance with Lumenis’ instructions or non-Lumenis authorized / 3rd party parts or fibers (as determined by Lumenis from time to time) are used with the Equipment without Lumenis’ consent; (c) the Equipment has been subjected to misuse, abnormal conditions or negligent handling or operation; or (d) the Equipment is resold, leased or rented to or for the use by any person other than the original Buyer without Lumenis’ consent. Used and refurbished Equipment does not have any warranties, and Equipment not manufactured by Lumenis shall only have such warranties (if any) as may be provided by the manufacturer.
10. Exclusions. No representation or warranty will be implied from any description of, or claims regarding, the Equipment or its effectiveness or ability to achieve any particular clinical results, whether written or oral, contained in specifications, samples, bulletins, marketing or promotional materials or similar statements made or furnished to Buyer by any person. Use of the Equipment requires the exercise of sound medical judgment, and clinical results may vary based on operator skill and experience, patient suitability, patient response to treatment, and other factors beyond the control of Lumenis. Lumenis make no representation or warranty of revenue or profits from use of the product, and no such representation or warranty shall arise from projections, studies, illustrations, marketing or promotional material, or other statements made to Buyer.
11.Warranty Disclaimer. The above limited warranty is exclusive and in lieu of all other representations and warranties of Lumenis, express or implied, written or oral; Lumenis disclaims and excludes any implied warranty, including, without limitation, warranties of merchantability and fitness for a particular purpose. In no event shall Lumenis be liable for loss of use, loss of profits, punitive damages, attorney’s fees and expenses, consequential, incidental or special damages, or any other direct or indirect damages whatsoever.
12. Liability Disclaimer. In the event Buyer uses any 3rd party parts or fibers that are not certified or authorized in writing by Lumenis, then Lumenis is not liable for any loss or damage whatsoever that may occur after such items are used by Buyer (including any damage to the Equipment as well as personal injury and property damage). Lumenis reserves the right to determine from time to time which 3rd party parts or fibers are certified and authorized.
13. Patents, Trademarks and Copyrights. Lumenis will, at its own expense, defend any suits which may be instituted against Buyer for alleged infringement of any United States patent, trademark or copyright relating to the Equipment (without modification, alteration or improvement), expressly provided that: (a) such alleged infringement consists solely of the use of such Equipment, in Buyer’s business for any of the purposes for which the same were sold by Lumenis; (b) Buyer has made all payments then due hereunder; (c) Buyer gives Lumenis immediate notice in writing of any such suit and transmits to Lumenis immediately upon receipt all processes and papers served upon Buyer and provides all needed information, assistance and authority to enable Lumenis’ defense of such suit; (d) Buyer has not made any compromise or settlement without Lumenis’ prior written consent, and (e) such suit does not include claims for infringements of combination or process patents covering the use of the Equipment in combination with other goods or materials not furnished by Lumenis, claims for infringement of patents covering methods of use not recommended by Lumenis, or claims arising from any modifications to the Equipment by Buyer or third parties. The foregoing states the entire liability of Lumenis for infringement.
14. Proprietary Rights. The purchase and sale of the Equipment to Buyer shall in no way be deemed to confer upon Buyer any right, interest or license in any patents, patent applications, designs, copyrights, trademarks, service marks, trade names or other intellectual property rights Lumenis may have covering the Equipment. Lumenis hereby reserves all such rights. Buyer warrants that it will not, and will not permit or assist any other person or entity to, divulge, disclose, or in any way distribute or make use of such intellectual property, and that it will not, and will not engage, permit or assist any other person or entity to, modify, reverse engineer or manufacture any Equipment.
15. Financing and Assignment. This Agreement binds Buyer, regardless of any financing arrangements, subrogations or assumptions. Buyer may not assign its rights or delegate its obligations hereunder except with the prior written consent of Lumenis (which consent may be withheld in its sole discretion).
16. Certifications and Authorizations. Federal (USA) law restricts (and state law may restrict) the Equipment to sale by or on the order of a physician, dentist, veterinarian or other practitioner licensed in the state in which the Equipment is used or ordered (a “Prescribing Practitioner”). Buyer and Buyer’s Prescribing Practitioner are solely responsible for the use and operation of the Equipment in accordance with all applicable laws and regulations, and medical and treatment guidelines, and for ensuring that each operator of the Equipment is adequately trained and qualified to use and operate the Equipment safely and properly and to perform medical procedures in accordance with such laws, regulations and guidelines. Lumenis makes no representations or warranties regarding federal, state or local laws or regulations, or medical or treatment guidelines that may apply to the use and operation of the Equipment. Use of the Equipment may involve certain risks of injury to patients. Buyer and Buyer’s Prescribing Practitioner are solely responsible for ensuring that patients are informed of these risks. Improper use of the Equipment may increase the risk of injury to patients. Buyer and Buyer’s Prescribing Practitioner are solely responsible for contacting state and local licensing agencies regarding requirements applicable to the use and operation of the Equipment. Buyer is responsible for timely obtaining all necessary certifications, authorizations, permits, licenses, approvals and consents required in connection with the purchase and use of the Equipment in the State in which Customer is located and in the State in which the Equipment is used. Lumenis relies on Buyer’s commitment to fulfill such obligations, including any special certifications that may be required by the FDA.
17. Entire Agreement; Amendments. This Agreement constitutes the entire agreement between Lumenis and Buyer and supersedes all prior or contemporaneous promotional material, contracts, agreements, statements, promises, representations, warranties, purchase orders or quotations, whether written or oral. The signed Sales Quotation and these Terms and Conditions may not be amended or modified except in writing by an authorized signatory of Lumenis. No other purported additions, amendments, alterations or modifications by Buyer or any other person, whether oral or written, shall be binding on Lumenis, regardless of Lumenis’ failure to object or Lumenis’ shipment of the Equipment. In the event of a conflict between these Terms and Conditions and any other part of this Agreement, these Terms and Conditions shall govern.
18. Governing Law; Jurisdiction and Venue; Time Limit. This agreement shall be governed by and construed according to the laws of the state of California, exclusive of conflicts of law provisions that would permit or require the application of the laws of a different jurisdiction. The 1980 U.N. convention on contracts for the international sale of goods hereunder shall not govern the rights and obligations of the parties. Buyer agrees that any action for enforcement of this agreement or any other dispute arising hereunder shall be filed exclusively in courts located in Santa Clara County, California, and buyer hereby consents and waives any objection to the jurisdiction and venue of such courts. Any action hereunder for breach of warranty or contract must be commenced not later than one year from the date on which such action accrues or be forever barred.
19. Arbitration. Lumenis or Buyer may require that any claim or dispute arising out of or related to this Agreement, including but not limited to those based on or arising from any alleged injury related to the Equipment (collectively, the “Claims”) be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, conducted by three (3) arbitrators sitting in Santa Clara County, California. If any party institutes any judicial proceeding relating to any Claim, that action shall not be a waiver of the right of the other party to require submission of such Claims to arbitration so long as the other party initiates arbitration within thirty (30) days of commencement of such judicial proceeding.