Terms & Conditions of Sale

SANAVITA MEDICAL LLC
STANDARD TERMS AND CONDITIONS OF SALE

1. ENTIRE AGREEMENT/ORDERS. This agreement is between SANAVITA MEDICAL LLC (“SanaVita Medical”) and Purchaser. No order for SanaVita Medical’s goods shall be binding upon SanaVita Medical until acknowledged in writing by SanaVita Medical. That acknowledgement and these Terms and Conditions constitute the entire agreement between SanaVita Medical and Any purchase order offer or counter-offer made by Purchaser before or after SanaVita Medical’s acknowledgement is rejected and all documents exchanged prior to SanaVita Medical’s acknowledgement are merely preliminary negotiations and not part of any contract between the parties. For example, orders submitted on Purchaser’s own purchase order forms modifying, adding to, contrary to, or inconsistent with these Terms and Conditions are expressly rejected and of no force or effect and acceptance is expressly made conditional uponassent to these terms. In no event will SanaVita Medical be deemed to have in any way changed, enlarged or modified its liabilities or obligations as fixed by these Terms and Conditions including, without limitation, situations in which SanaVita Medical satisfies an order submitted on Purchaser’s own purchase order form. Purchaser shall have been deemed to agree to these Terms and Conditions upon the earlier of acceptance of SanaVita Medical’s quotation, acceptance of delivery of the goods or the issuance of a purchase order to SanaVita Medical. No acknowledgement by SanaVita Medical and no provision of SanaVita Medical’s Terms and Conditions shall be subject to change in any manner except as agreed to in writing by an officer of SanaVita Medical.

 

2. All prices are subject to change without notice and quoted in U.S. dollars unless otherwise noted. All prices are quoted FOB point of shipment unless otherwise noted by SanaVita Medical. Written quotations expire thirty (30) calendar days from the date of quotation unless specified otherwise. Verbal quotations are non-binding on SanaVita Medical. Prices do not include sales, excise, municipal, state or any other government taxes. All taxes and other governmental charges upon the production, manufacture, distribution, sale or use of the goods to the extent required or not forbidden by law to be collected by SanaVita Medical from Purchaser, shall be paid by Purchaser to SanaVita Medical unless Purchaser furnishes SanaVita Medical with exemption certificates acceptable to the relevant taxing authorities. SanaVita Medical reserves the right to revise prices of work in process due to any change in the order on the part of the Purchaser. Typographical and/or clerical errors made by SanaVita Medical are subject to correction.

 

3. TERMS OF PAYMENT. Invoices are net thirty (30) days from the date of invoice unless specified otherwise and approved in writing by SanaVita Medical.Past due accounts will bear interest at the rate of 1 1/2% per month of the invoiced amount. All invoices are payable in U.S. dollars, unless specified otherwise and approved. Acceptance of bank drafts, checks or other form of payment shall be subject to immediate collection of the full face amount thereof. SanaVitaMedical may, at its discretion, impose a transaction fee on payments processed via wire transfer or by Letter of Credit. SanaVita Medical reserves the right at any time and in its sole discretion to demand full or partial payment before proceeding with a contract of sale. If delivery is delayed or deferred by Purchaser beyond the scheduled date, payment shall be due in full when SanaVita Medical is prepared to ship. The goods may thereafter, at SanaVita Medical’s option, be stored at the risk and expense of If Purchaser defaults when any payment is due, the whole contract price shall become due and payable upon demand or SanaVita Medical, at its option, without prejudice to other lawful remedies, may defer delivery or cancel the contract.

Order cancellations by the Purchaser are subject to an order cancellation fee as stated with the quotation and incorporated herein.

 

4. DELIVERY. SanaVita Medical shall not be liable for any damage as a result of any non-delivery or delay due to any cause beyond SanaVita Medical’s reasonable control, including, without limitation, an act of God; act of Purchaser; embargo; other government act, regulation or request; fire; accident; strike; war; boycott; slowdown; riot; or delay in transportation or inability to obtain necessary labor, materials, or manufacturing facilities.

 

5. SHIPMENT/RISK OF LOSS. All shipments are subject to an overrun or shortage of 5% of the quantity specified. Unless otherwise noted, all sales of goods are made FOB point of shipment. Delivery dates given in advance of actual shipment of goods or performance of services are estimates and shall not be deemed to represent fixed or guaranteed delivery dates. Method and route of shipment will be at the discretion of SanaVita Medical unless specified otherwise by Purchaser and agreed by SanaVita Medical, and any additional expense of the method or route of shipment specified by Purchaser shall be borne by Claims for shortage or other quantity errors must be made in writing to SanaVita Medical within five (5) days after receipt of shipment. Failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Purchaser.

SanaVita Medical reserves the right to make delivery of goods in installments, unless otherwise expressly stipulated in the agreement for sale. Such installments,when separately invoiced, shall be paid for when due per invoice without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Purchaser of its obligations to accept remaining deliveries.

 

6. WARRANTY/CLAIMS. Purchaser acknowledges that it has selected and ordered goods based on its own skill and judgment and agrees that it is responsible for ensuring that the goods selected are fit for Purchaser’s purpose. SanaVita Medical warrants only that such goods have been produced in accord with SanaVita Medical’s standard practices with regard to materials and workmanship and no samples or prior description of goods shall constitute anexpress warranty. If goods are non-conforming, SanaVita Medical, at its option and subject to the terms of this paragraph 6 and paragraph 8, will either

(i) allow Purchaser to return the goods and receive repayment of the price or (ii) repair or replace the goods. No goods are to be returned to SanaVita Medical without prior written consent of SanaVita Medical and the assignment of a return goods authorization number by SanaVita Medical.

 

• THIS WARRANTY IS IN LIEU OF ANY EXPRESSED OR IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY OTHER OBLIGATION ON THE PART OF THE SELLER.

 

• SanaVita Medical shall have no obligation under this warranty if damage to the good occurs because of improper handling or operation, modification of the good, abuse, misuse, unauthorized repairs made or attempted and/or where equipment is operated above rated capacity.

 

• No agent, employee or representative of SanaVita Medical has authority to bind SanaVita Medical to any affirmation, representation or warranty concerning the goods sold.

 

• Upon receipt, Purchaser shall inspect the goods. All notice of claims, including claims for alleged defective goods, must be made within fifteen (15) days of If no notice of claim is made within fifteen (15) days, the goods are irrevocably accepted by Purchaser and all claims against SanaVita Medical are waived and forever barred. Purchaser agrees that any litigation or arbitration relating to any claim must be commenced within one (1) year

 

after date of shipment by SanaVita Medical. Purchaser hereby expressly assumes all liability for all damage and injury occurring before and after said time periods if notice is not made pursuant to this agreement.

7. PURCHASER SUPPLIED MATERIALS. Purchaser warrants that any material or parts supplied to SanaVita Medical will conform to all indicated specifications and will be timely delivered. SanaVita Medical shall not be liable for any damages related to parts or materials supplied by Purchaser, including damage to the part or material itself, or damage caused by defective parts or SanaVita Medical extends no warranty and shall not be liable for any SanaVita Medical goods that are defective as a result of Purchaser supplied material or parts.

8. LIMITATION OF LIABILITY/INDEMNITY. SanaVita Medical’s liability on any claim for loss or damage arising out of this transaction or from the performance or breach thereof or connected with any goods or services supplied hereunder, or the sale, resale, operation or use of goods, whether based on contract, warranty, tort (including negligence) or other grounds, shall not exceed the price allocable to such goods or services or part thereof involved inthe claim, regardless of cause or Purchaser’s remedies are limited to the return of non-conforming goods and repayment of the price or to the repair and replacement of non-conforming goods, subject to the provisions of paragraph 6. This limitation of liability and remedies reflects a deliberate and bargained-for allocation of risks between SanaVita Medical and Purchaser and constitutes the basis of the parties’ bargain, without which SanaVita Medicalwould not have agreed to the price or terms of this transaction. SanaVita Medical shall not, under any circumstances, be liable for any charges without its prior written consent.

SanaVita Medical SHALL NOT IN ANY EVENT BE LIABLE WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHER GROUNDS FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF GOODS OR ASSOCIATED PRODUCTS, BUSINESS INTERRUPTION, COST OF CAPITAL, COST OFSUBSTITUTE GOODS, FACILITIES OR SERVICES, DOWNTIME COSTS, OR CLAIMS OF CUSTOMERS OF PURCHASER

FOR SUCH DAMAGE. In addition, if SanaVita Medical furnishes Purchaser with advice or other assistance regarding any goods or services supplied hereunder, or any system or equipment in which any such goods may be installed, and which is not required pursuant to this transaction, the furnishing of the advice or assistance will not subject SanaVita Medical to any liability, whether based on contract, warranty, tort (including negligence) or other grounds.

In the event Purchaser modifies SanaVita Medical goods or incorporates SanaVita Medical goods into another product or component part, Purchaser agrees tohold harmless and indemnify SanaVita Medical from any and all claims, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) involving personal injury or property damage. Purchaser also agrees to hold harmless and indemnify SanaVita Medical from any patent or other intellectual property claims related to any SanaVita Medical goods made in accordance with Purchaser’s designs or specifications.

9. WAIVER AND CHOICE OF LAW. The failure of SanaVita Medical to insist in any one or more instances, upon the performance of any of the Terms and Conditions as set forth herein or the failure of SanaVita Medical to exercise any of its rights hereunder shall not be construed as a waiver or relinquishment of any such terms, conditions or rights thereunder and shall not effect SanaVita Medical’s right to insist on strict performance and compliance with regard toany future performance of these Terms and All transactions shall be governed by the laws of the Commonwealth of Pennsylvania, United States of America, excluding conflict law rules. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply.

10. DISPUTE RESOLUTION/ATTORNEYS’ FEES. Any dispute, controversy or claim arising out of or related to this transaction where the matter in controversy does not exceeds the sum of $50,000, exclusive of interest and costs, shall be resolved by binding arbitration. A demand for arbitration shall be served on the other by certified Within forty-five (45) days after a party demands arbitration, the parties shall select a single arbitrator. The selected arbitrator shall conduct the arbitration in a manner substantially similar to the procedures set forth in the Commercial Arbitration Rule of the American Arbitration Association (“AAA”). If the parties are unable to agree on an arbitrator, the party demanding arbitration shall file a demand for arbitration with theAAA and the arbitration shall then proceed in accordance with the Commercial Arbitration Rules of the AAA. In all circumstances, the arbitration shall take place in Bucks County, Pennsylvania.

Any dispute, controversy or claim arising out of this transaction where the matter in controversy exceeds the sum of $50,000, exclusive of interest and costs, shall be adjudicated exclusively by a court of competent jurisdiction in Bucks County, Pennsylvania. Purchaser consents to personal jurisdiction and venue in Bucks County, Pennsylvania and agrees not to take any action to challenge such jurisdiction or venue. SanaVita Medical may bring an action against Purchaser in any jurisdiction or venue. In the event of any action or proceeding related to this transaction, and SanaVita Medical is determined to bethe prevailing party with regard to some or all claims, Purchaser agrees to pay all of SanaVita Medical’s attorney’s fees and litigation costs up through and including any appeal.

11. EXPORT Client shall comply with all applicable laws and regulations with regard to the supply, sale, transfer, export, re-transfer, or re-export of SanaVita Medical Products, including: economic sanctions; export controls; and trade embargoes (“Sanctions”) and Client shall not cause SanaVita Medical to, either directly or indirectly, risk any potential violation of any applicable Sanctions.

For the avoidance of doubt, all applicable laws and regulations shall include at least those originating out of or related to United Nation’s resolutions, or trade or economic sanctions, laws or regulations of the European Union, of the OSCE, or of the United States of America, including extra territorial Sanctions.

In addition, Client shall also respect the SanaVita Medical Positions, which may go beyond Sanctions as defined above. The list of countries to which SanaVita Medical refuses any direct or indirect sales (including transit across these countries) is as follows: Iran. This list is subject to evolutions and SanaVita Medical reserves the right to regularly notify such changes to the Client.

 

G01.01.03 (Rev 02)

Confidential: This document contains proprietary information to SanaVita Medical, LLC. This document may not be copied, distributed, modified, altered, or changed in any manner except by SanaVita Medical Document Control