All quotations, products and services provided by CIVCO Medical Instruments Co., Inc., MEDTEC, Inc., and/or SINMED, B.V., d/b/a “CIVCO Medical Solutions” (collectively, “CIVCO”) to any customer, distributor, original equipment manufacturer, end-user or other purchaser (“Buyer”) are furnished only on the terms and conditions stated herein. By acceptance of products or services from CIVCO, Buyer accepts and agrees to be bound by these Terms and Conditions and agrees that, unless otherwise specified by separate written agreement between Buyer and CIVCO, these terms and conditions, together with the item, quantity, delivery and other terms in CIVCO’s order acknowledgment, shall constitute the entire agreement between the parties on the subject matter hereof, superseding all other communications, documentation and negotiations. Without limiting the foregoing, Buyer’s acceptance of products or services hereunder shall be deemed a waiver of, and CIVCO hereby expressly rejects, any different or additional terms, preprinted or otherwise, in any purchase order or other documentation furnished by Buyer, whether before or after delivery of the products or services, and regardless of whether CIVCO has acknowledged receipt thereof by signature or otherwise. No modification of these terms and conditions shall be valid against CIVCO unless the modifications appear in negotiated agreement signed by an officer of CIVCO.
1. Quotations & Prices. Quotations furnished by CIVCO expire on the dates specified therein, and may be changed or withdrawn by CIVCO at any time prior to written acceptance by Buyer and by an authorized representative of CIVCO. Quotations to non-U.S. customers are solicitations for offers to purchase. Clerical or typographical errors are subject to correction. Quoted prices and delivery dates are subject to product availability and receipt of prior orders, and prices are valid only for the quantities, terms and payment schedule specified. Unless otherwise specifically agreed by CIVCO in a separate written agreement or quotation, all prices are subject to change at any time without notice. Prices do not include, and Buyer shall be responsible for, any applicable sales, use, excise, value added, property, customs, import/export, and similar taxes or duties; costs for freight, transportation, inspection, and insurance; and any itemized delivery, expediting, installation, special packaging, or service charges, all of which, if paid or provided by CIVCO, will be added to the applicable invoice and paid by Buyer in addition to the product price. If Buyer asserts that any transaction is tax exempt, Buyer shall provide to CIVCO 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. Acceptance and Cancellation of Orders. Orders for products must be presented in writing or via electronic means acceptable to CIVCO, and will be considered accepted only by written or electronic confirmation or by shipment of the products ordered. 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 CIVCO’s inventory or ability to deliver. CIVCO may allocate available inventory and production in its sole discretion. Accepted orders may be cancelled by Buyer only if written notice is provided to CIVCO prior to shipment of any part thereof and only upon payment of such reasonable cancellation charges as CIVCO may request, which may include but not be limited to tooling and work-in-progress expenses. CIVCO's performance is subject to approval of Buyer's credit, and CIVCO, with reasonable cause, may cancel any order placed by Buyer or refuse or delay the shipment thereof if Buyer fails to meet any of its obligations as provided herein.
3. Payment Terms. Unless otherwise specified in CIVCO’s order acknowledgment, payment terms for U.S. customers are net 30 days from date of invoice, in U. S. dollars, subject to approved credit at the time of order invoicing. Deposits or down payments, if any, are non-refundable, and no discount for early payment is authorized without CIVCO’s written consent. Orders from outside the U.S. require advance remittance by wire transfer. Alternate international payment terms are considered upon request. Visa, MasterCard, Discover and American Express are accepted. No transaction fee applies for payments made by credit card at the time of order placement; however, a 4% transaction fee will be charged for credit card payments requested on open invoices. Payment terms shall not be affected by any delay in delivery, installation or acceptance. Partial shipments are billed as made and payable upon the terms above. CIVCO reserves the right to modify payment terms or require prior payment, letter of credit or COD when, in the opinion of CIVCO, Buyer’s financial condition or previous payment record so warrants. Should Buyer become delinquent in any payment due, CIVCO in its discretion may institute credit hold procedures on all open orders. Future orders will not be confirmed until Buyer’s account is brought current, including any outstanding interest charges. CIVCO may set off against any sum otherwise due from CIVCO to Buyer or its affiliates any sums or amounts then due from Buyer and its affiliates to CIVCO.
4. Shipment & Inspection. Unless otherwise specified in CIVCO’s order acknowledgement, products will be shipped using CIVCO’s designated carrier, CIP Destination, per Incoterms 2010. Taxes, duties, freight, insurance and shipping charges, including fees and import/export duties, will be invoiced to Buyer and are subject to all terms and conditions of payment herein. Products will be packaged for shipment in accordance with standard commercial practices; however, CIVCO will not be responsible for delays, loss or damage in transit. Buyer shall inspect all products upon arrival and provide written notice to CIVCO, within five (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 terms of Buyer’s order and, unless installation or acceptance is required as provided below, will be deemed accepted. Use or resale of products in any manner following delivery shall also constitute acceptance by Buyer. Any claim for loss or damage in transit should be made directly to the delivering carrier.
5. Delivery and Installation. CIVCO will endeavor to deliver accepted orders promptly; it is understood, however, that dates indicated for delivery or performance represent CIVCO’s best current estimates only and failure to perform within such dates will not subject CIVCO to liability. Where installation and acceptance terms are specified in CIVCO’s quotation or acknowledgment, CIVCO will provide an estimated delivery and installation schedule, and final coordination of installation requirements will be made by Buyer and CIVCO no later than one (1) month prior to the scheduled date, unless otherwise agreed by CIVCO in writing. Buyer is responsible for having the building, equipment, and service ready to receive the products on the estimated delivery date, and for providing all necessary labor to unload the products at the delivery site and transport them to the installation location, unless otherwise mutually agreed. Installation will be performed under the supervision of CIVCO’s installation technician, unless otherwise specified by CIVCO, and Buyer shall provide a representative who will be present at all times during the installation and capable of assisting where necessary. Buyer shall take all precautions reasonably necessary to prevent personal injury to CIVCO’s employees, agents or subcontractors at Buyer’s premises. Upon completion of the installation, CIVCO’s installation technician will demonstrate the Product. Upon completion of such demonstration showing that the Product performs according to published specifications, the Product shall be deemed accepted by Buyer, and Buyer shall execute CIVCO’s acceptance letter evidencing such acceptance. Use of the Product by Buyer or any of its employees, officers, directors, agents, representatives, contractors, licensees, or affiliates (“Representatives”) for any purpose after delivery thereof, without CIVCO’s express written consent, shall also constitute acceptance of the Product by Buyer. Buyer shall reimburse CIVCO at CIVCO’s standard rates for any extra time, travel, or expense resulting from absence or inadequacy of rescheduling arrangements or other delay or prolongation of installation caused by Buyer or its Representatives.
6. Product Specifications and Validation. All products, when delivered to Buyer hereunder, shall conform to specifications as set out in CIVCO technical files; however, Buyer shall be responsible for validation of each specific Product application and any use of products as a component of or in conjunction with any products not provided by CIVCO for such purpose. CIVCO reserves the right to discontinue or change the design or specifications of any Product or component at any time, and will use commercially reasonable efforts to notify Buyer of any decision to discontinue products or material changes in specifications affecting form, fit or function. CIVCO shall deliver products with a minimum shelf life of twelve (12) months.
7. Return Policy. Other than returns pursuant to valid warranty claims, products may be returned for refund or credit only with advance written approval and a Return Material Authorization (RMA) number obtained from CIVCO Customer Service. The RMA number is valid for 30 days from issuance and must appear on all shipping documents and related correspondence. Products returned without such approval 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, or if such Product or has not been used, handled or stored in accordance with all applicable Product instructions and documentation. Returned products must be sent by Buyer freight prepaid and properly boxed to prevent damage in transit. CIVCO WILL NOT ACCEPT ANY C.O.D. PARCELS. CIVCO will inspect returned products upon receipt and issue any applicable credits based on the age and condition of the products and the terms of this policy. For any stock items returned, a restocking fee of up to twenty-five percent (25%) of the invoice price may be charged. Special order or custom products may be returned only if agreed by CIVCO in writing and upon payment of CIVCO’s reasonable costs associated with such products and their return. After 30 days, all sales are final.
8. Limited Warranty; Disclaimer.
Products Manufactured by CIVCO: CIVCO warrants that products manufactured by CIVCO will be free from defects in materials and workmanship under normal use for a period of 12 months from the date of invoice by CIVCO unless otherwise stated on the Product labeling and/or instructions. CIVCO further warrants that all sterile disposable products will be sterile for not less than 12 months from the date of invoice by CIVCO unless otherwise stated on the Product labeling and/or instructions.
CIVCO Software & Media. CIVCO warrants that the media on which any CIVCO software is furnished will be free from defects in materials and workmanship, and that the software will perform substantially in accordance with the operational features of CIVCO’s published specifications at the time of sale, in each case under normal use in accordance with CIVCO’s Product manuals and instructions for use, for a period of 12 months from date of invoice by CIVCO. 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 makes no warranty that the operation of any software, firmware or data archiving utilities will be uninterrupted or error free.
Products Not Manufactured by CIVCO: Products, software and media 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 have no warranty liability with respect to components, software or products supplied by third parties, 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 breach of the foregoing warranties 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. Any replacement of products or software may be made by substitution of similar or upgraded products having the same or similar functionality. For CIVCO software, CIVCO will provide software 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. After expiration of the warranty period, CIVCO will charge Buyer its then-current prices for parts, labor and transportation or, upon request, will furnish quotes for prepaid service contracts for further service and support.
Exclusions from Coverage: Any warranty claim, support claim, or liability is excluded where such claim or liability is not caused by CIVCO and arises out of (1) accident, theft, misuse, or neglect; (2) products that have expired according to product labels, or use of products outside of normal operating conditions, specifications, or environment or in a manner not authorized by CIVCO in the applicable Product documentation and instructions; (3) products that have been improperly handled or stored, including lack of routine care or maintenance as indicated in the applicable product documentation and instructions, or maintenance by an unauthorized third party service provider; (4) user modification or relocation of any product; (5) computer viruses, failure of electrical power, and other changes to the operating system or environment that adversely affect the product, including without limitation acts of God, electrical power surges, or other causes external to the products; (6) defects, problems, or failures created by third party products (except those comprising parts or components of CIVCO products) or their use or interface with CIVCO products; or (7) latent defects discovered after expiration of the applicable warranty period.
TO THE FULL EXTENT ALLOWED BY LAW, THE FOREGOING LIMITED WARRANTIES AND REMEDIES ARE EXCLUSIVE AND EXPRESSLY IN LIEU OF ALL OTHER EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, TERMS, OR CONDITIONS, WRITTEN OR ORAL, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES, TERMS, OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, CORRESPONDENCE WITH DESCRIPTION, AND NONINFRINGEMENT, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED. IN NO EVENT WILL CIVCO OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER INDIRECT LOSSES OR DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF BUSINESS OR PROFITS, OR LOSS OF OR DAMAGE TO DATA, HOWEVER CAUSED, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR OTHER LEGAL THEORY, WHETHER FORESEEABLE OR NOT, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. CIVCO'S AND ITS SUPPLIERS’ AND LICENSORS’ TOTAL LIABILITY IN DAMAGES OR OTHERWISE WILL NOT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE FOR THE PRODUCT(S) THAT GAVE RISE TO THE CLAIM. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 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.
Certain Legal Limitations: The foregoing warranties give Buyers specific legal rights which may vary based on local law. Some countries, states, or provinces do not allow the exclusion or limitation of implied warranties or the limitation of incidental or consequential damages for certain products supplied to consumers or the limitation of liability for personal injury, so the above limitations and exclusions may be limited in their application to certain Buyers. 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.
9. Calibration and Radiation Delivery. Buyer will be responsible for calibration of all radiation producing equipment. The dose rate and integrated dose measured by the accelerator transmission ionization chamber and dosimetry electronics must be calibrated by a qualified radiological physicist prior to use of any CIVCO Product for patient treatment. Buyer will be responsible for testing and calibrating equipment on a regular basis. Buyer will also be responsible for any radiation surveys required by applicable law or regulation or necessary to establish that radiation does not exceed safe levels. BUYER RETAINS FULL RESPONSIBILITY FOR THE ACCURATE CALIBRATION AND SAFE TRANSMISSION OF RADIATION TO ANY THIRD PARTY, WITH OR WITHOUT CIVCO'S PRODUCT IN PLACE.
10. Software & Firmware. Any software provided by CIVCO is provided upon the terms and subject to the conditions set forth in the applicable license agreement provided with the product, the terms of which will prevail over any contrary terms and conditions herein. Products may also contain internal system code that executes below the external user interface and which is integral to the operation of the Product (“Firmware”) and/or operating system software. If any products either constitute or comprise computer software (including operating system software) or firmware, Buyer will be deemed to have agreed to the terms of any applicable software licenses by installing or using the software or the product in which the software or firmware is installed. CIVCO or its suppliers or licensors own all such software and firmware and, 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 such software and/or firmware only in machine readable form and only as part of the normal operation and maintenance of the product(s) with which it is provided. Any rights in and to such software or firmware that are not expressly granted to Buyer are expressly reserved. Buyer may not copy any software or firmware provided by CIVCO, in whole or in part, or transfer, sublicense, distribute, sell, lease, rent, or otherwise provide or disclose any such software or firmware, or any 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 modify, adapt, copy, recast, alter, compile, decompile, translate, or create any derivative work based on such software or firmware, or use the same for application development purposes. The license granted to Buyer will terminate when Buyer discontinues use of the products with which such software or firmware is provided.
11. Confidential Information. Buyer acknowledges that the products and all related software, documentation and technology are based upon and embody various confidential and/or proprietary technology, processes, methods, information, and trade secrets of CIVCO and its suppliers and licensors. Buyer will maintain the confidentiality of all such confidential and proprietary information and trade secrets, including product designs, software, specifications, drawings, sourcing, materials, components, processes, and pricing (“Confidential Information”) using the same degree of care used to protect its own similar confidential information, but not less than reasonable care. Buyer may disclose such Confidential Information only to its Representatives having a need therefor in connection with the transactions covered hereby and bound by written agreement to maintain the confidentiality thereof, and Buyer shall be responsible for any breach by those to whom it provides such information. It is agreed that any breach of this Section may cause CIVCO and its suppliers or licensors irreparable harm for which recovery of damages would be inadequate, and that such parties will be entitled to seek injunctive relief to prevent any violation, threatened or actual, of this article, even if monetary damages are available and readily quantifiable, and without proof of actual damage.
12. Proprietary Rights. CIVCO and its suppliers or licensors shall exclusively own all ideas, inventions, technology, patents, patent applications, copyrights, trademarks, trade names, trade secrets, know-how and other intellectual property and proprietary rights and interests used or embodied in the products, drawings, designs, specifications, documentation, and software furnished by CIVCO to Buyer, and all derivatives thereof in any form, and Buyer will not acquire any right, title, or interest therein or any right to use the same without the express written agreement of CIVCO or the third party that owns them. Buyer agrees that it will not directly or indirectly create, or attempt to create, by disassembling, reverse engineering or otherwise, or from any instructions, manuals, schematics, or other information provided or made available by or on behalf of CIVCO, any products, parts, systems, software, technologies, ideas, items, or concepts comparable to or competing with those provided hereunder, or any part thereof, or disclose or use any such information for commercial purposes or in a manner detrimental to CIVCO. Buyer shall not remove, alter, or obscure any copyright, trademark, trade name, logo, government restricted rights, or other proprietary or confidentiality notices or legends from any products, packaging, labels, documentation, or other materials provided by CIVCO, and shall not, directly or indirectly, take, authorize or permit any action, or use any procedure or process in any jurisdiction, to assert, register, file, publish, confirm, perfect or claim any right in any intellectual property or proprietary rights of CIVCO, its suppliers or licensors.
13. Use Restrictions & Requirements. Buyer is responsible for obtaining all permits and meeting all applicable codes, regulations, recommendations and requirements of competent health, radiation-protection, and other authorities pertaining to the products, their installation and use (it being understood that CIVCO makes no warranty of any kind regarding compliance with such requirements). Buyer may not (a) alter, copy, adapt, develop, modify, reverse engineer, disassemble, create derivative works from, or make any changes to any products or materials provided by CIVCO, including but not limited to product software, firmware, packaging, labels, and instructions for use, or permit any distributor, agent, representative, or end-user to do so, without prior written consent from CIVCO; (b) import, export, sell, transfer, service, store, or otherwise handle, distribute or use any product, software, or documentation in any manner prohibited by applicable laws and regulations, including all applicable export control laws, restrictions and regulations, or contrary to any written warning or instruction given by CIVCO or its suppliers or licensors with respect to such product, its handling, storage, or use in the product documentation, on CIVCO’s website, or otherwise; or (c) make any representations or warranties on behalf of CIVCO as to the quality, merchantability, fitness for a particular use, or other features of the products. Buyer acknowledges and agrees that the products and related technology are subject to trade compliance and other laws and regulations, and agrees to comply with all applicable laws, regulations and governmental requirements in connection with the purchase, shipment, import, export, and/or delivery of products from or into any jurisdiction, including payment of all applicable taxes or duties, obtaining all required governmental permits, licenses and approvals, and compliance with all requirements necessary to use and/or conduct medical device sales of products in any jurisdiction, including any use, distribution, or sale thereof as a component of any Buyer or third party products. 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.
14. Bodily Injury. 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 in any way related to the use or operation of any CIVCO product; provided, however, that CIVCO will have no responsibility whatsoever for, and, unless prohibited by applicable law, Buyer will defend, indemnify, and hold harmless CIVCO from and against all losses, liabilities, damages or injuries caused by or arising out of (1) the use, operation, storage, or service of any product in violation of these Terms and Conditions, or (2) claims or damages associated with any non-CIVCO design, manufacture, or installation of any product or any custom design, manufacture, or installation by CIVCO that is performed pursuant to Buyer’s specifications or designs. This Section states each party’s entire liability for bodily injury.
15. Governing Law. These Terms and Conditions and all transactions to which they may apply, including without limitation any disputes arising out of deliveries by CIVCO to Buyer, shall be governed by and construed and enforced in accordance with the laws of the State of Delaware and the United States of America, without giving effect to any conflict of law provision that would cause the application of the laws of any other jurisdiction, except where expressly prohibited by applicable law or constitutional provisions restricting choice of law by a political subdivision, agency or instrumentality. To the extent that the United Nations Convention on Contracts for The International Sale of Goods could be applicable by operation of the laws of the United States and the State of Delaware, the Parties hereby opt out of the application of the Convention, and any applicable international discovery and service of process conventions will be inapplicable.
16. Finance Charges and Collection Expenses. Any amounts due to CIVCO that are not paid when due will bear interest from the date due until paid in full at the lower of 1.5% per month or the highest legal rate, compounded monthly. If CIVCO deems it necessary to refer an account 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 and accrue interest at the rate stated above, unless prohibited by applicable law. CIVCO may set off against any sum otherwise due from CIVCO to Buyer or its affiliates any sums or amounts then due from Buyer and its affiliates to CIVCO, and will retain a purchase money security interest in all products sold (and proceeds thereof) until receipt of full payment, including interest and collection costs. Buyer agrees to sign and authorizes CIVCO to file financing statements as necessary to perfect such security interest.
17. Force Majeure. 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 such party’s reasonable control and without negligence on its part, provided that the party so affected uses reasonable efforts to avoid or remove any causes of nonperformance and continues performance with reasonable dispatch whenever such causes are removed. For delays resulting from any such causes, performance will be correspondingly extended.
18. Limitation of Claims. No claims, regardless of form, arising out of or in any way connected with the transactions, products, or services to which these Terms and Conditions apply may be brought by Buyer more than one year after the cause of action has accrued or performance hereunder has been completed or terminated, whichever is earlier.
19. Miscellaneous. CIVCO's rights and remedies herein are cumulative and in addition to all other rights and remedies available at law or in equity. Failure to enforce any provision of these Terms and Conditions will not be construed as a waiver of such provision or any other provision nor of the right to enforce such provisions. The invalidity, in whole or in part, of any provision hereof will not affect the remaining provisions. Any waiver or renunciation of a claim or right arising out of breach must be in writing and signed by the injured party. Section headings are for convenience only, and may not be used in the interpretation hereof. These Terms and Conditions will remain in effect for a period of five (5) years following completion of the transactions to which these Terms and Conditions apply.