1.GENERAL TERMS. The goods listed in this purchase order are to be specially manufactured for the buyer and are not suitable for sale to others in the ordinary course of business of KPI. Unless otherwise specified on the face of this document, this Quotation/Order (“Agreement”) will remain valid only if accepted by Customer no later than 30 days from the date of submission to the Customer.
2.TITLE AND RISK OF LOSS. Unless otherwise specified elsewhere in this document, title and risk of loss to the Equipment purchased under this Agreement will pass to Customer (a) if KPI is to provide installation, upon KPI’s completion of installation, or (b) if KPI will not provide installation, upon delivery by KPI to a common carrier at KPI’s facility from which the Equipment is shipped.
3.TERMS OF PAYMENT. Unless otherwise specified elsewhere in this document, prices stated are FOB Riverside, California or other facilities of KPI in the USA from which the Equipment may be shipped, freight prepaid and charged. All taxes which are levied on or payable by KPI in connection with the sale, use, or possession of the Equipment to or by the Customer (excluding income taxes), and transportation charges (including rigging) for the shipment to installation site will be paid by customer in addition to the quoted price. Terms of payment are specified elsewhere in this document. All invoices paid after due date will be assessed a late payment charge of the lesser of 1½ % per month or the maximum rate permitted by law.
4.DELAYS. If Customer changes the scheduled delivery date specified on the face of this document (“Scheduled Delivery Date”) during the period of 120 days preceding such date, Customer will nevertheless pay the required delivery installment payment as specified elsewhere in this document on the Scheduled Delivery Date as if delivery had been made on such date. In addition, Customer will pay all extra costs incurred by KPI as a result of such delay, including without limitation, storage and transportation. Storage fees will be charged at commercially comparable rates for storage on KPI’s site.
5.ACCEPTANCE BY KPI. This Agreement will not be binding on KPI unless and until it is accepted by KPI as evidenced by the signature of an authorized KPI representative on the face of this document. KPI’s acceptance is expressly made conditional upon Customer’s assent to the terms and conditions which may be contained in Customer’s bid documents, purchase order or any other documents furnished by Customer are hereby objected to and deemed rejected unless accepted in writing by an authorized KPI representative.
6.EQUIPMENT INSTALLATION. If specifically requested in writing to do so, KPI may provide installation and application training for operation of its products. KPI may also provide 3rd party installation proposals at the service providers proposed cost to KPI. KPI is held harmless for the performance of said service provider. KPI reserves the right to not perform installation and application on any system sold by KPI.
7.EQUIPMENT OPERATION AND INDEMNITY. Customer agrees that all Equipment purchased under this Agreement will be operated by duly qualified technician and/or other medical doctors in a safe and reasonable manner in accordance with the manufacturer’s written instructions, applicable laws and regulations, and for the purposes for which such Equipment was intended. Customer agrees to defend, indemnify, and hold KPI and KPI’s officers, directors, and employees harmless from and against all claims, demands, lawsuits, liabilities, judgments, and costs (including reasonable attorney’s fees, expert fees, and other litigation costs) arising out of our connection with the operation of Equipment by Customer, unless caused by KPI’s sole negligence.
8.LIMITED WARRANTY AND REMEDY. For the warranty period described below by product, KPI, as its only obligation, will replace or repair, as KPI’s option and without charge to Customer during KPI’s normal working hours (if Customer requests warranty service outside such hours, customer will pay overtime premium for labor), any component of the Equipment determined by KPI to be defective in materials or workmanship, provided such defect is reported to KPI within the warranty period. KPI’s warranty period is as follows: (a) for all new equipment and systems sold by KPI, as per the warranty provided by the original equipment manufacturer to the end user, (b) for used (remarketed) ultrasound systems and transducers sold by KPI, 30 days from the date of shipment to the original purchaser only unless otherwise specified on the first page of the contract, (c) for other equipment sold by KPI, service contracts are required, as no warranty is provided for those systems. KPI’S OBLIGATION TO REPAIR OR REPLACE DEFECTIVE PARTS WILL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR A BREACH OF THE WARRANTY SET FORTH IN THIS SECTION. SUCH WARRANTY WILL BE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF THE MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The warranty ser forth in this Section will not apply to, and KPI will not be liable for any defects resulting from misuse, repairs performed by unauthorized third parties, accidents, acts of God, or neglect by anyone other then KPI.
9.LIMITATION OF LIABILITY. KPI WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR EXEMPLARY DAMAGES OR ECONOMIC LOSS ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT, EVEN IF KPI IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. IN NO EVEN WILL KPI’S LIABILITY TO CUSTOMER (WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE) ARISING OUT OF OR RELATING TO THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT ACTUALLY PAID BY CUSTOMER TO KPI UNDER THIS AGREEMENT.
10.SECURITY INTEREST. KPI hereby reserves and Customer grants to KPI a security interest pursuant to the Uniform Commercial Code, in and to the Equipment (and all products and proceeds of it) until full payment of the purchase price is received. Customer hereby grants to KPI its irrevocable special power of attorney to execute and file financing statements or other documents, on Customer’s behalf, for the purpose of protecting the security interest of KPI.
11.REMOVAL OF EQUIPMENT. Until KPI has received full payment of the purchase price, Customer will not remove any part of the equipment from the Customer’s premises, nor will customer sell, lease, transfer, or otherwise part with possession of, or permit any lien or encumbrance to be placed on all or any part of the Equipment.
12.REMDIES OF KPI. If Customer fails to make any payment when due under this Agreement or under any other agreement between Customer and KPI, or becomes insolvent or makes an assignment for the benefit of creditors, or if a petition in Bankruptcy is filed by or against Customer, or if the financial responsibility of Customer becomes impaired or unsatisfactory in KPI’s judgment, or if Customer otherwise breaches any of the terms and conditions of this Agreement, then KPI may, without prior notice or demand, defer shipments, cancel the balance of the order, suspend performance of any obligation (including without limitation, all obligations set forth under Limited Warranty and Remedy above), and/or take immediate possession of the Equipment delivered, until the full purchase price of the Equipment will be paid by Customers or, at KPI’s discretion until security satisfactory to KPI will be given by Customer. Any costs incurred by KPI as a result of suspending performance or repossession or collection will be payable by Customer.
13.ATTORNEY’S FEES AND COSTS. Customer will be liable for all attorney’s fees and litigation costs incurred by KPI to enforce any of its rights under this agreement, including, without limitation, any action or proceeding to recover delinquent accounts.
14.EXCUSED PERFORMANCES. KPI will not be liable for nonperformance or delay in performance resulting directly or indirectly from any occurrences beyond KPI’s control, including without limitation, strikes or other labor troubles, acts of God, war, accidents, fires, floods, other catastrophes, inclement weather, transportation, unavailability of materials and labor, delays caused by KPI’s suppliers, or laws, regulations or acts of any governmental agency. The foregoing provision will apply even though such cause may occur after performance of the obligations of KPI under this Agreement has been delayed for other causes.
15.SOFTWARE.All rights and interest in any software that may be furnished under this Agreement, and any updates and enhancements to it, will remain the property of KPI. Such software is being furnished to Customer under a non-exclusive license. Customer will not decompile, modify, copy, reproduce, or transcribe the software nor allow third parties to use the same without KPI’s prior written consent.
16.CANCELLATION. Customer may not cancel the order subject to this Agreement except with KPI’s prior written consent. In the event of such cancellation, KPI will be entitled to recover any and all damages suffered by it caused by the cancellation as allowed by law, but in no event less than an amount equal to twenty percent (20%) of the purchase price for restocking charge. In the event of cancellation of this purchase order by buyer after either (1) a substantial beginning of their manufacture has occurred, or (2) commitments for their procurement have been made, buyer shall nevertheless be responsible for payment in full for the goods ordered herein. UCC Sec. 2201 (3)(a).
17.ASSIGNMENT. Customer may not assign any of its obligations under this Agreement without KPI’s prior written consent.
18.EXPORT REGULATIONS. This Agreement involved products, and/or technical data that may be controlled under the U.S. Export Administration Regulations and may be subject to the approval of the U.S. Department of Commerce prior to export. Any export or reexport by Customer, directly or indirectly, in contravention of such of such regulations is prohibited
19.ENTIRE AGREEMENT. The Agreement contains the entire agreement between the parties and supersedes all prior or concurrent agreements between the parties, whether oral or written, relating to its subject matter. The provisions of this agreement may not be modified unless in writing and executed by both parties.