TERMS AND CONDITIONS OF DIRECT SALE
Mindray DS USA, INC.
DESIGNATIONS. For the purpose of these conditions, Mindray Ds USA, Inc. shall be referred to as "SELLER". The purchaser shall be referred to as "Buyer".
TITLE, RISK OF LOSS AND INSURANCE. Title to each shipment of the product sold hereinafter and risk of loss thereon passes to Buyer when such products are delivered ex works. However, the goods will remain subject to Seller's rights of stoppage in transit and of reclamation. If a strike, embargo, governmental action, or any other cause beyond Seller's control prevents delivery to Buyer or his Agent, or if shipping instructions for any shipment are not received before shipment date, or if payment is to be made on or before delivery, title and risk of loss passes as soon as the shipment has been set aside by Seller and invoiced to Buyer (subject to Seller's rights as any unpaid Seller) and payment shall be made in accordance with invoice as though the products had been shipped and accepted by Buyer and Seller shall be under no duty to carry insurance thereafter.
PRICES AND TERMS-SALE WITHIN THE UNITED STATES. All prices quoted with respect to any product to be delivered within the United States of America are F.O.B. point of shipment, and Seller's regular terms of Net 30 days, subject to the approval of its credit department shall apply. Pro rata payments shall become due as shipments are made. If shipments are delayed by Buyer, payments shall become due from date when Seller is prepared to make a shipment. In the case of products manufactured to special order, if manufacture is delayed by Buyer, payment shall be made based on the correct price and percent of completion. Buyer shall be liable for the price of all products substantially conforming to Seller's published specifications, notwithstanding that Buyer may not have accepted or may have revoked acceptance for same. Seller, may, at any time and from time to time, at its sole discretion, limit or cancel the credit of Buyer as to time and amount and as a consequence, may demand payment in cash before delivery of any unfilled portion of this contract, and failure of the Buyer to make any such payment within 30 days after demand shall constitute a default under this contract. Approval of credit of one or more deliveries or contracts shall not deemed a waiver of the provisions of this paragraph. Buyer hereby represents to Seller that it is now solvent and agrees that each acceptance of delivery of the products sold hereunder shall constitute reaffirmation of this representation at such time. Terms as stated above shall apply unless otherwise stated by Seller on the face of this form.
PRICES AND TERMS-SALE OUTSIDE OF THE UNITED STATES. All prices quoted with respect to any product to be delivered outside of the United States of America are for delivery EX Works. Seller's regular terms of Net 30 days, subject to the approval of its credit department shall apply. Pro rata payments shall become due as shipments are made. If shipments are delayed by Buyer, payments shall become due from date when Seller is prepared to make a shipment. In the case of products manufactured to special order, if manufacture is delayed by Buyer, payment shall be made based on the correct price and percent of completion. Buyer shall be liable for the price of all products substantially conforming to Seller's published specifications, notwithstanding that Buyer may not have accepted or may have revoked acceptance for same. Seller, may, at any time and from time to time, at its sole discretion, limit or cancel the credit of Buyer as to time and amount and as a consequence, may demand payment in cash before delivery of any unfilled portion of this contract, and failure of the Buyer to make any such payment within 30 days after demand shall constitute a default under this contract. Approval of credit of one or more deliveries or contracts shall not deemed a waiver of the provisions of this paragraph. Buyer hereby represents to Seller that it is now solvent and agrees that each acceptance of delivery of the products sold hereunder shall constitute reaffirmation of this representation at such time. Terms as stated above shall apply unless otherwise stated by Seller on the face of this form.
SALES AND SIMILAR TAXES. Unless otherwise stated, the Seller's prices do not include sales, use, excise or similar taxes. Consequently, in addition to the prices specified herein, the amount of any applicable present or future sales, use, excise or other similar tax applicable to the sale of the products hereunder shall be paid by Buyer. Import duties and taxes levied in the country of destination shall be charged to Buyer. Further, Buyer must bear the cost of any customs, duties and taxes that may be levied by reason of exportation.
DELIVERY. Seller shall not be liable for delay in performance or inability to perform occasioned by any cause beyond its control or beyond the control of its suppliers or contractors including but not limited to strike, embargo, governmental regulation or inability to obtain materials. If, performance by Seller is delayed by reason thereof, it shall notify Buyer, and time for performance shall be extended for the period of such contingency. If, as a result of any such contingency, Seller is unable to perform this contract in whole or in part, then to the extent that it is unable to perform the contract shall be deemed terminated without liability to either party, but shall remain in effect as to the unaffected portion thereof if any.
CLAIMS. The remedies provided for herein are the sole and exclusive remedies of Buyer.
(a) Buyer shall be deemed to have accepted any product and his right to cancel, reject or claim damages for breach of warranty or otherwise therefore shall expire: (1) in the case of a patent defect, 14 days after arrival of shipment or (2) in the case of latent defect, 30 days after invoice date or (3) in any event when the product shall have been altered from its original state.
(b) If within the periods of time specified in subparagraph (a) Buyer notifies Seller in writing sent by registered mail, of a claimed defect, then (1) Buyer shall, together with this notice of claim, offer Seller in writing prompt opportunity to examine the product and failure to do so constitutes acceptance and waiver of all claims for defect; (2) if Seller determines the claim to be valid, it may elect to replace defective products within a reasonable time by so advising Buyer in writing within 20 days of such determination.
(c) If not so replaced, Seller's liability for damages on account of any claimed defect on any product delivered by Seller shall be limited to the purchase price of the product on which the claim is based. Specifically, and without limiting the generality of the foregoing. Seller shall not be liable for damage relating to any instrument, equipment, or apparatus with which the product sold hereunder is used, nor for loss of profit or any incidental, consequential or special damages.
SEVERABILITY OF BREACH. Any defect in quality, or delays in delivery or non-delivery shall effect only the particular installment so defective or delayed and shall not affect the balance of the contract. Any delivery not in dispute shall be paid for on the due date, as provided in this contract without offset, defense or counterclaim and regardless of controversies relating to other delivery or undelivered product.
DEFAULT BY BUYER. If buyer fails, with or without cause, to furnish Seller with specifications and/or instructions for, or refuses to accept deliveries of any of the products herein sold or is otherwise in default under or breaches or repudiates this or any other contract with Seller or fails to pay when due any invoice under said contracts, then, in addition to any and all other remedies which Seller may have hereunder or by law, Seller without notice (1) may bill and declare due and payable all undelivered products under this or any other contract with Seller and/or (2) may defer shipment hereunder and under any other contract until such default, breach or repudiation is removed and/or (3) may cancel any undelivered portion of this and/or any other contract in whole or in part (Buyer remaining liable for damages). Buyer agrees to reimburse Seller for all costs, including attorney's fees and collection agency charges, incurred by Datascope in collecting payments that are past due.
PACKING. All products shall be suitably packed for shipment, unless otherwise requested by Buyer and agreed to in writing by Seller.
INDEMNITY. Buyer will indemnify and hold Seller harmless from any and all injury to person or property (or suits or claims resulting therefrom) where such injury results, whether directly or indirectly, from the sale or use of the product sold by Seller or Buyer hereunder. This indemnity shall not apply if the injury is caused by the sole negligence of Seller.
PRODUCTS SOLD. Any product that becomes obsolete before shipment under this Sales Order may be substituted for by SELLER at time of shipment. In addition any product that is sold as new under this Sales Order may contain refurbished parts that meet the same quality and control procedures and warranty as for new products.
INSTALLMENT DELIVERY. At the discretion of the SELLER, delivery under this Sales Order may be made, unless otherwise stated, in installments.
POSTPONED DELIVERY. Any postponed delivery, for more than (90) days requested by the BUYER is subject to increase in pricing as in effect on the new delivery date.
ACCEPTANCE OF PRODUCT. Except as otherwise specifically stated in writing, BUYER shall have been deemed to have accepted the product stated in this Sales Order upon the earlier of (5) days after the date SELLER notifies BUYER that the product is operating in accordance with the product’s specification, BUYERS’S first use of the product or thirty (30) days after the date BUYER receives the product form SELLER.
DELAYED PAYMENT. All outstanding balances due to SELLER from BUYER for product under this Sales Order after the date listed for payment shall accrue interest at the highest rate allowable by law.
WARRANTY, SELLER HEREBY EXPRESSLY EXCLUDES ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS, except such warranties as may be set forth in Seller's current operating manual catalog or written guaranty covering such product. Damage to any product or parts through misuse, neglect, accident, or affixing any non-standard accessory attachments or by any customer modification voids any warranty. Seller makes no warranty whatever in regard to trade accessories, such being subject to the of their respective manufacturers. A condition of any warranty is that the equipment or any accessories which are claimed to be defective be returned, when authorized by Seller, freight prepaid to Seller. Seller shall not have any responsibility in the event of loss or damage in transit. SELLER ALSO HEREBY EXCLUDES ANY WARRANTY THAT THE PRODUCTS SOLD HEREUNDER SHALL BE FREE OF THE RIGHTFUL CLAIM OF ANY THIRD PERSON BY WAY OF PATENT INFRINGEMENT OR THE LIKE.
WAIVER. Waiver by Seller of a breach by Buyer of any provision of this contract shall not be deemed a waiver of future compliance therewith, and such provision, as well as all other provisions hereunder, shall remain in full force and effect.
DISPUTES. Any disputes arising from a contract to which the Present TERMS and CONDITIONS apply in full or in part, or arising from further agreements proceeding from such contract, shall be settled exclusively in the courts in the State of New Jersey or the courts of the United States of America located in the state of New Jersey.