TERMS AND CONDITIONS
AGREEMENT. These Terms and Conditions (including attached exhibits, schedules and annexes) will apply to and control the terms of Buyer’s purchase of equipment, Systems (as defined herein), item(s) and/or service(s) (individually, “Products” and “Services,” respectively, or collectively, “Products and/or Services”) from Vue Imaging, Inc. (“Supplier”) and shall supersede all prior written or oral discussions, Terms & Conditions and understandings of the parties, if any, relating to the Products and/or Services. These Terms & Conditions shall be binding and effective upon the execution by Buyer of Supplier’s quote for goods or services as attached hereto or upon issuance of a purchase order by supplier (collectively “Purchase Order”). In the case of any inconsistency or conflict between these Terms and Conditions herein with respect to any Products and/or Services ordered by Buyer and any terms and conditions set forth on the Purchase Order, Hardware Warranty Agreement or the Software Support Agreement, the terms of these Terms and Conditions shall prevail. No course of dealing, no usage of trade and no acceptance or acquiescence to any course of performance shall modify, alter or be relevant to explain these Terms and Conditions. The preprinted terms and conditions of any purchase order or purchase change order and the preprinted or other terms and conditions of any quote, acknowledgment, bill of lading, confirmation, invoice or other document or course of dealing or practice between the parties shall not be binding on the parties or constitute a modification or amendment of these Terms and Conditions or the Purchase Order unless or to the extent that a written agreement signed by authorized representatives of both parties expresses the intent of the signing parties to be bound thereby. Buyer expressly and irrevocably waives any claim or right to assert any claim based on an oral modification of the terms hereof or oral promises or representations relating to Supplier’s sale or provision of equipment, parts, other Products or Services hereunder. Until executed by the Buyer, any quotation constitutes an offer to be accepted by Buyer. Unless otherwise agreed in writing, the quotation is valid for no more than thirty (30) days from the issue date of that quotation and Supplier may withdraw the quotation at any time prior to Buyer’s acceptance.
NO CANCELLATIONS OR REFUNDS. PURCHASE ORDERS MAY NOT BE CANCELLED BY BUYER FOR ANY REASON. ALL DEPOSITS AND PREPAYMENTS UNDER THESE TERMS AND CONDITIONS ARE NON- REFUNDABLE EXCEPT AS EXPRESSLY PROVIDED IN PARAGRAPH 7 HEREIN.
PRICE. The price of a Product(s) and/or Service(s) shall be as set forth on the face of a duly authorized Purchase Order (the “Price”). Buyer shall pay all applicable taxes (including, but not limited to, sales, use, value-added and any other applicable taxes), except where Buyer timely provides Supplier with a valid tax exemption certificate. Buyer shall not be responsible for any penalties or other assessments relating to the collection of any taxes or other charges invoiced to Buyer to the extent that such penalties or assessments result from Supplier’s failure or delay to invoice Buyer as provided herein, unless such failure or delay to invoice is due to no fault on the part of Supplier. In the event any tax included in an invoice was not required and was paid by Buyer, Supplier agrees to reasonably cooperate with Buyer to procure a refund and, if received by Supplier, will pay it to Buyer.
PAYMENT. Unless stated otherwise on the Suppliers Purchase Offer document, Payment is due in U.S. dollars worldwide as follows: (A) with respect to new Systems (capital equipment in Supplier’s standard product line), Products or Services: 100% of the purchase price shall be payable upon placement of a Purchase Order; and (B) with respect to all other parts, products and services, 100% no later than the date of shipment or performance.
SECURITY INTEREST. Buyer grants Supplier a continuing first security interest and lien, or the equivalent in anon-U.S. jurisdiction (“Lien”), upon any System or Products Supplier ships to Buyer hereunder, and in the proceeds and products thereof (collectively the “Collateral”), until Buyer makes full payments required hereunder. Buyer agrees, as reasonably necessary, to execute further documents and to take all actions Supplier requests to protect and perfect this Lien. Buyer irrevocably appoints Supplier as Buyer’s limited attorney-in-fact to execute and file on behalf of Buyer a UCC-1 financing statement, or the equivalent in a non-U.S. jurisdiction, describing the Collateral. California law, without regards to conflict of laws provisions, governs the creation, perfection and enforcement of this Lien and rights there under. All Supplier’s rights and remedies shall be cumulative.
DELIVERY; TITLE AND RISK OF LOSS; RESCHEDULING. All deliveries of Product(s) and/or Service(s)shall be in strict conformance with these Terms and Conditions and the Purchase Order, except to the extent that the parties have agreed otherwise. Delivery of all Product(s) shall be made FOB Origin, as of the first date available for shipment. Title and risk of loss or damage shall pass to Buyer upon shipment. Supplier reserves the right to make partial shipment or partial performance, which Supplier may separately invoice. Delay in shipment shall not relieve Buyer of its obligation to pay for Products or to accept subsequent shipments. Supplier shall not be liable for any costs, losses, damages, claims or liabilities (“Damages”) due to non-performance caused by events beyond its reasonable control. In such instance, Supplier may, at its sole option (1) extend the shipment date for a time equal to the period of the delay and/or (2) allocate its available supply among its customers when it is unable to supply its total demands and/or commitments. Supplier is not obligated to procure products, services or other items from others to enable it to perform.
INSTALLATION; ACCEPTANCE. Unless otherwise specified in the Purchase Order, Buyer will be responsible for the uncrating, unpacking, assembly and set-up of the Product(s) in the environment in which it is to operate. In any event, Buyer shall examine all Systems and Products (not subject to a pre-agreed installation and acceptance procedure performed by Supplier) upon receipt and must notify Supplier in writing immediately of any complaint or grounds for rejection. Unless, supplier is immediately notified in writing of the grounds for rejection, or it is otherwise agreed in writing by the parties, any Systems or Products not returned to Supplier within ten (10) days after original shipment to Buyer shall be deemed unqualifiedly Accepted as of the thirtieth day. SYSTEMS AND PRODUCTS MAY BE REJECTED AND/OR RETURNED ONLY IN THE EVENT OF DEFECTS IN WORKMANSHIP THAT SUBSTANTIALLY IMPAIR THE VALUE OF THE SYSTEMS, OR IN THE EVENT OF AN OVER-FULFILLMENT OF AN ORDER, TO THE EXTENT OF THAT OVER- FULFILLMENT. SUPPLIER RESERVES THE RIGHT TO CURE ANY SUCH DEFECT IN WORKSMANSHIP OR QUANTITY. PRODUCTS INSTALLATION AND REMOVAL OF EXISTING SYSTEMS, AND THE NETWORKING OF SERVERS TO EXISTING SYSTEMS IS NOT INCLUDED IN THE PRICE QUOTED. IF REQUESTED TO PERFORM ANY OF THESE, OR OTHER, ADDITIONAL SERVICES, LABOR AND MATERIAL CHARGES WILL APPLY AT $200 PER HOUR WITH A 1 HOUR MINIMUM.
WARRANTIES. Supplier’s products are subject to a limited Hardware Warranty and a Software Agreement(where applicable). THE REMEDIES SET FORTH IN THESE TERMS & CONDITIONS AND SUPPLIER’S EXPRESS HARDWARE WARRANTY AND THE SOFTWARE AGREEMENT SHALL CONSTITUTE BUYER’S SOLE AND EXCLUSIVE REMEDIES FOR SUPPLIER FURNISHING DEFECTIVE OR NON-CONFORMING PRODUCTS, GOODS, SYSTEMS,MATERIALS, SPARE PARTS, SERVICE OR SOFTWARE. SUPPLIER DISCLAIMS ALL OTHER WARRANTIES WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL OTHER SUPPLIER OBLIGATIONS OR LIABILITIES APPLIED BY LAW.
SOFTWARE. Supplier hereby grants to Buyer a revocable, limited, non-exclusive, worldwide, royalty-free, non-assignable, personal license to use all operating software, source code and other software contained in or used by the Product(s) and/or furnished by Supplier (the “Software”), which includes any documentation accompanying the Software and all updates, enhancements, revisions, corrections or new developments to the Software or the documentation. Supplier or its licencors shall retain sole and exclusive ownership of all right, title and interest in and to the Software, subject only to Buyer’s expressly granted rights herein, and no transfer of title, other ownership interest, right to sub-license or any other rights whatsoever are granted or implied. This license is strictly limited to use of the Software exclusively by Buyer and exclusively on the specific System or Product with which it was supplied. Buyer agrees not to, and not to permit others to, copy, modify, duplicate, decompile, disassemble, translate or reverse-engineer the Software (and accompanying manuals) in any manner or form. Buyer agrees not to sell, assign, distribute or otherwise transfer any Software. Buyer may make one backup or archival copy only of the Software in object code or other machine-readable form. Buyer will return or destroy all copies of software upon cessation of related product usage. All software furnished by Supplier is to be considered confidential information and will be held by Buyer in strict confidence and disclosed on a need-to-know basis, or as required by law, to only those of its employees who have agreed in writing to maintain the confidentiality of Buyer provided third party confidential information.
ALLOCATION OF RISK. These Terms & Conditions allocate the risk of Product failure between Supplier and Buyer. The allocation is recognized by both parties and reflected in the price of the Products.
DISPUTES, APPLICABLE LAW AND FORUM. Any dispute or claim arising out of this Agreement, or the goods or services provided hereunder, shall be decided by binding arbitration in accordance with the rules of the judicial arbitration and mediation service (JAMS), using a single arbitrator whose judgment may be entered in any court having jurisdiction. If the parties cannot agree on an arbitrator, the Superior Court of the county of venue shall appoint an arbitrator with at least ten years’ experience resolving commercial disputes in San Luis Obispo County, State of California. Filing a judicial action for recording a notice of pending action, order of attachment, receivership, injunction or other provisional remedies, shall not waive these arbitration rights nor is recourse to such provisional relief precluded by the availability of arbitration hereunder. The parties shall split the arbitrator’s fees. In any judicial or arbitration proceeding arising out of these Terms and Conditions or any written purchase order or quotation controlled by these Terms and Conditions, the prevailing party in any such action or proceeding shall be entitled to recover from the other party all reasonable costs and expenses, including but not limited to reasonable attorney fees or other professionals (“Expenses”). These Terms and Conditions shall be governed in accordance with the internal laws of the State of California, without giving effect to its choice or conflict of laws provisions. The Uniform Law on the International Sale of Goods shall not apply to these Terms and Conditions or any written purchase order controlled by these Terms and Conditions. Each party irrevocably and unconditionally submits to the exclusive jurisdiction and venue of the state courts located in the State of California, County of San Luis Obispo in connection with any proceeding arising out of or related to the interpretation or implementation of these Terms and Conditions; except that Supplier may take action in any jurisdiction to realize on the Collateral or any other security for Buyer’s obligations hereunder, prevent disclosure of confidential Supplier information, or enforce a judgment or other decision.
WAIVER OF JURY/LIMITATION OF ACTIONS AND LIABILITY. Buyer and Supplier hereby agree, to the fullest extent permitted by law, to waive any right to adjudication by jury of any claim or cause asserted against the other and arising hereunder and, further, that any such claim or cause if not brought within two (2) years of the event from which the claim or cause arises, shall be forever waived and time-barred. NOTWITHSTANDING ANYTHING OTHERWISE TO THE CONTRARY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS), OR FOR ANY AMOUNT GREATER THAN THE ACTUAL PRICE OR FEE ALLOWABLE TO THE SYSTEM, PRODUCT OR SERVICES PAID FOR BY BUYER UNDER THIS AGREEMENT, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PURCHASE ORDER, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED IN CONTRACT OR TORT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ENTIRE AGREEMENT. Supplier’s quote, and these terms and conditions contain the entire and only agreement between Supplier and Buyer with respect to the subject matter covered. No salesman, agent or distributor of the Supplier is authorized to make any representations or warranties regarding the products listed on Supplier’s quotation, or on any other of Supplier’s products except for those representations and warranties stated in writing and incorporated or made a part of these Terms & Conditions.
MISCELLANEOUS. TIME IS OF THE ESSENCE hereunder for the performance of all covenants and conditions contained herein. These Terms and Conditions may be modified, supplemented or changed only by an agreement in writing that makes specific reference to these Terms and Conditions and that is signed by a representative of each party who is authorized to amend these Terms and Conditions. No waiver, or failure by either party at any time to enforce any of its rights hereunder, shall constitute a continuing waiver for any particular breach or a waiver of any subsequent or different breach. In the event that any provision contained in these Terms and Conditions is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining terms shall be construed and carried out according to their original terms. The provisions of Sections 1-3, 5 and 8-12 shall survive the completion or termination of the Purchase Order or these Terms & Conditions.
The foregoing Terms and Conditions are accepted and agreed to by the parties upon execution by Buyer of Supplier’s quote
for goods or services as attached hereto or upon issuance of a purchase order by supplier