Vanduzen Inc. dba MedCAD

TERMS AND CONDITIONS

BY PAYING FOR AND ACCEPTING ANY SHIPMENT OF GOODS, OR ANY PROVISION OF SERVICES, FROM MEDCAD (HEREIN “SELLER”), THE ACCEPTOR THEREOF (HEREIN, “BUYER”) AGREES TO THESE TERMS AND CONDITIONS, TOGETHER WITH (I) THE CUSTOMER REQUEST DOCUMENTATION (II) THE PURCHASE ORDER, AND/OR (III) ANY SHEETS OF ADDITIONAL SPECIFICATIONS (I-III, COLLECTIVELY, THE “ORDER DOCUMENTS”).

1. TERMS

Buyer and Seller agree that these TERMS AND CONDITIONS (collectively, the “T&Cs”) shall govern and control with respect to all purchases by Buyer from Seller. In the event these T&Cs conflict with any prior agreement between Buyer and Seller, including, but not limited to, the Order Documents, these T&Cs shall prevail. Any modifications to these T&Cs must be in writing executed and delivered by Seller.

2. PRICES AND TAXES

Unless otherwise specified, the prices set forth by Seller do not include applicable federal, state and local taxes, impositions, charges, tariffs and extractions. Billed charges shall not include taxes or charges for which Buyer has been furnished a valid exemption certificate. Buyer shall be responsible and shall indemnify and hold harmless Seller from and against, all such taxes, impositions, tariffs, extractions and charges.

3. INVOICES

Seller will submit invoices to Buyer showing the following information: Buyer supplied purchase order number (if applicable), item(s) delivered reference number (if applicable), description of item(s), quantity of item(s), unit prices, each applicable tax (to the knowledge of Seller), and any other information specified elsewhere herein. Unless otherwise agreed to by Buyer and Seller in writing, all invoices will be payable net thirty (30) days from the invoice date as shown on the applicable invoice. Any invoice not paid, in full, may, at Seller’s sole discretion, begin to accrue interest, at the lesser of (i) two percent (2%) per month or (ii) the highest monthly interest rate allowable by applicable law, beginning on the thirty first (31^st) from the applicable invoice date. If Buyer fails to make timely payment more than twice, Seller may terminate any outstanding agreements with Buyer; provided, however, that such termination shall not relieve Buyer of its payment obligations, including interest, pursuant to these T&Cs and any other agreement. Buyer hereby agrees that any items delivered by Seller to Buyer, and not subsequently used by Buyer in a timely manner, will be returned to Seller and Seller may, in Seller’s sole and absolute discretion, refund up to fifty percent (50%) of the cost of such items. For avoidance of doubt, non-use will not relieve Buyer of its obligation to make timely payment pursuant to this Section 3.

4. PACKING AND SHIPMENT

Prices quoted by Seller will not include all shipping and handling charges unless clearly stated in the applicable Order Documents. Unless otherwise specified, Seller will package and pack all goods in a manner that is: (a) in accordance with good commercial practice and (b) acceptable to common carriers for shipment at the lowest rate for the goods being delivered. Seller will mark all containers with lifting, handling, and shipping information as needed, and with an externally accessible or visible purchase order number, packing list of contents, and date of shipment. No partial or complete delivery will be made prior to the due date or dates shown unless requested by Buyer and agreed to by Seller.

5. F.O.B. POINT

Unless otherwise specifically provided in the applicable Order Documents, the products and services ordered hereunder will be delivered freight on board (F.O.B.) origin and only insured to the extent requested and paid for by Buyer.

6. OVERSHIPMENTS

Buyer will pay only for maximum quantities ordered. Over-shipments will be held by Buyer at Seller’s risk and expense for a reasonable time awaiting return shipping instructions. Return shipping charges for excess quantities will be at Seller’s expense.

7. MATERIAL FURNISHED BY BUYER

Any material furnished by Buyer, on an other-than-a-charge basis, shall be deemed as held by Seller upon consignment. Seller shall keep such material insured while in its possession.

8. WARRANTY

Seller warrants that all goods delivered will (a) be free from material defects in workmanship, material, and manufacture; (ii) comply with the requirements of these T&Cs and any applicable Order Documents, including any drawings or specifications incorporated herein or samples furnished by Seller; (iii) where design is Seller’s responsibility, be free from material defects in design. Seller further warrants that all goods and services delivered to Buyer will be in compliance with all applicable laws and regulations EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THESE T&Cs, SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE GOOD AND SERVICES DELIVERED TO BUYER, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.

9. INSPECTION AND ACCEPTANCE

All goods will be subject to final inspection and acceptance by Buyer within forty-eight (48) hours after delivery. In case any item does not meet the warranties specified herein or is otherwise not in conformity with the requirements of these T&Cs, Seller shall, in Seller’s sole discretion, (a) correct any defective or nonconforming item(s) by repair or replacement at no cost to Buyer; (b) direct Buyer to return any defective or nonconforming item(s), at Seller’s risk and expense, for full credit of items returned; or (c) permit Buyer to retain the goods and refund to Buyer the value of the defective or nonconforming item(s).

10. CHANGE ORDERS

(a) Buyer may request to suspend performance hereunder, increase or decrease the ordered quantities, change the due date or make changes in any one or more of the following:

(i) applicable drawings, designs, item(s) to deliver or specifications;

(ii) method of shipment or packing; and/or

(iii) place of delivery.

(b) If Seller elects to accept Buyer’s changes, in whole or in part, it will notify Buyer in writing of such acceptance. If the changes cause an increase in the cost or the time required by Seller for performance of such changes, and Seller so notifies Buyer, then Seller shall adjust the order price, delivery schedule or both to reflect such changes.

11. TERMINATION

Either party may terminate any agreement for the provision of goods and services by Seller to Buyer (a) any time prior to acceptance; (b) if proceedings in bankruptcy are instituted by or against the other party, or against the other party’s property or (c) upon giving ten (10) days’ written notice to the other party if the other party materially breaches any obligation under these T&Cs and the breach is not cured to the party’s satisfaction by the end of such ten (10) day period. If any agreement is terminated pursuant to this Section 11, other than by Buyer pursuant to subsection (b) or (c), Buyer shall pay Seller, in full, for the good and services in the applicable Order Documents.

12. WAIVER

The failure of Seller to enforce at any time any of the provisions of these T&Cs, to exercise any election or option provided herein or to require at any time the performance by Buyer of any of the provisions herein will not in any way be construed to be a waiver of such provisions.

13. INTELLECTUAL PROPERTY

Seller warrants that the goods and services described herein, and the sale or use of such in their intended manner, will not infringe any intellectual property rights. Seller agrees to indemnify and hold harmless Buyer, its agents, customers, successors, and assigns against any and all loss, damage, and liability (including costs and expenses) for actual infringement of any patent, copyright, trademark or other third party right arising out of the use or sale of the goods by Buyer, its agents or customers for their intended purpose. If any injunction is issued as the result of any such infringement, Seller shall, at Seller’s option, (i) refund to Buyer the amounts paid to Seller for the goods covered by the injunction or (ii) furnish Buyer with acceptable and non-infringing goods.

14. NON-DISCLOSURE OF CONFIDENTIAL MATTER

All specifications, drawings, samples and other data furnished by Buyer or Seller, when clearly identified as CONFIDENTIAL, will be treated by Buyer and Seller as confidential information, will be used only for the purposes set forth in any applicable Order Documents, will remain Buyer’s and Seller’s respective property and will be returned when requested. The provisions of this section shall survive the completion or termination of any applicable Order Documents.

15. ASSIGNMENTS

No right or obligation under these T&Cs may be assigned by either party without the prior written consent of the other party and any purported assignment without such consent will be void. 

16. FORCE MAJEURE

If either party is prevented from complying with obligations hereunder, other than payment obligations, due to events beyond their reasonable control, including, but not limited to, by reason of fires, explosions, floods, earthquakes, acts of God, war, invasion, terrorism, labor strikes, changes in law or regulation, global pandemics or freight embargoes, then upon prompt written notice to the other party, such obligations shall be suspended during the period of such disability. The disabled party shall make all reasonable efforts to remove such disability within twenty (20) days of giving such notice. If the disability is not removed within such time period, the non-disabled party shall have the right to immediately terminate any applicable Order Documents upon written notice. In addition, during the period of disability, the non-disabled party may seek to have its needs met by others without liability to the disabled party or any extension of the term of any applicable Order Documents.

17. SEVERABILITY.

If any portion of this AGREEMENT is invalid or unenforceable, the remainder of this AGREEMENT shall not be affected, and the remaining terms will continue in effect and be binding on the parties.

18. ENTIRE AGREEMENT

These T&Cs, including all Order Documents, and together with any other documents incorporated by reference, constitute the entire agreement between Buyer and Seller, superseding all prior oral or written communications regarding the subject matter hereof.

19. APPLICABLE LAW

These T&Cs will be governed by the laws of the State of Texas, without reference to its conflict of laws principles.

20. VENUE AND JURISDICTION

THE PARTIES CONSENT TO THE EXCLUSIVE VENUE AND PERSONAL JURISDICTION, IN ANY ACTION BROUGHT IN ANY COURT, FEDERAL OR STATE, OF THE FEDERAL OR STATE COURT LOCATED IN DALLAS, TEXAS HAVING SUBJECT MATTER JURISDICTION OVER THE MATTER IN DISPUTE. THE PARTIES IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM, OR ANY OBJECTION THEY MAY NOW, OR HEREAFTER HAVE, THAT VENUE IS NOT PROPER WITH RESPECT TO ANY SUCH SUIT ACTION OR PROCEEDING BROUGHT IN SUCH A COURT IN DALLAS, TEXAS, INCLUDING ANY CLAIM THAT SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM AND ANY CLAIM THAT A PARTY IS NOT SUBJECT TO THE PERSONAL JURISDICTION OR SERVICES OR PROCESS IN SUCH FORUM.

21. WAIVER OF JURY TRIAL

EACH PARTY HEREBY WAIVES THEIR RESPECTIVE RIGHT TO TRIAL BY JURY FOR ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. EACH PARTY AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION WITH BE TRIED BY A COURT TRIAL WITHOUT A JURY.

MC-173, Rev. B Page 1 of 1