COVID-19 Emergency Supply Chain
EFFECTIVE DATE OF TERMS AND CONDITIONS; MODIFICATION; EXIOM WEBSITE.
These Terms and Conditions of Sale (“Terms”) are effective for all Purchase Orders (defined below) placed by any buyer (“Buyer”) with Exiom Health Services, (US) LLC (“Exiom”) on or after April 01, 2020 (the “Effective Date”). Except as to any security agreements, or unless otherwise agreed in writing by Exiom, on and after the Effective Date, these Terms will supersede all prior terms and conditions regarding the purchase by Buyer and sale by Exiom of and any all medical equipment and other medical products manufactured or sold by Exiom (the “Products”). Exiom reserves the right to further modify these Terms from time to time (the “Modified Terms”) either upon written notification to Buyer by U.S. Mail, electronic mail or by posting any changes on the Exiom website (https://exiomhealth.com) (the “Exiom Website”), with the most current Terms on the Exiom Website and the Effective Date of these Terms to be at the time Buyer thereafter places a Purchase Order. THE MODIFIED TERMS SHALL BE EFFECTIVE FOR ALL PURCHASE ORDERS PLACED BY BUYER WITH EXIOM ON OR AFTER THE EFFECTIVE DATE SET FORTH THEREIN. BUYER SHALL BE DEEMED TO HAVE ACCEPTED THESE TERMS AND ANY MODIFIED TERMS UPON THE EARLIER TO OCCUR OF (I) BUYER SIGNING OR OTHERWISE AUTHENTICATING THESE TERMS, OR (II) BUYER CONTINUING TO USE THE EXIOM WEBSITE AND/OR PLACING A PURCHASE ORDER WITH EXIOM BY ANY METHOD AFTER THE APPLICABLE EFFECTIVE DATE. PLEASE NOTE THAT BY ACCESSING OR USING ANY PART OF THE WEBSITE OR PLACING ANY PURCHASE ORDERS, BUYER AGREES THAT BUYER HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY THESE TERMS AND ANY MODIFIED TERMS, INCLUDING THE DISPUTE RESOLUTION PROCEDURES. IF BUYER DOES NOT AGREE TO BE SO BOUND, BUYER SHOULD NOT ACCESS OR USE THE WEBSITE OR PLACE ANY PURCHASE ORDERS.
Buyer may order Products and parts by telephone (Exiom’s invoice to Buyer for the Products without further written confirmation shall be conclusive evidence of such order), online through the Exiom Website or other written communication except as provided below (each, a “Purchase Order”), identifying the Products or parts by number, quantity, purchase price, address for delivery, requested date of shipment and any special shipping instructions. All Purchase Orders are subject to acceptance by Exiom in its sole discretion. Any terms or conditions in any Purchase Order, which are inconsistent with, or are in addition to these Terms, shall be null and void. Exiom shall use reasonable efforts to timely fill orders accepted by Exiom subject to availability, demand, inventory and other factors. On any Purchase Order accepted by Exiom, but not yet shipped, Exiom shall use its reasonable efforts to accommodate Buyer’s request for cancellations or alterations; provided that Exiom may impose a reasonable material, labor, storage or cancellation charges.
PRODUCTS AND PRICING.
Exiom reserves the right to change, without prior notice, the design, construction, and type of materials used in the manufacture of any of its Products. Exiom further reserves the right to discontinue, without prior notice, any of its Products and/or replacement parts therefore. Exiom may further change the prices of its Products at any time and without prior notice unless otherwise agreed in writing by Exiom to expressly provide prior notice to Buyer. Exiom will make reasonable effort to provide advance notice when possible. Billing and payment shall be in US Dollars, unless otherwise agreed in writing by the parties. PAYMENT TERMS. Buyer must pay for all Products in accordance with the payment terms set forth on Exiom’s invoice unless otherwise agreed in writing by Exiom. Any payment not made when due shall accrue interest up to the rate of 1.5% per month (18% A.P.R.) until paid in full. In the event Buyer fails to make a payment when due, Buyer shall pay all reasonable costs of collection, including reasonable attorneys’ fees. Buyer agrees to pay a $25.00 service charge on any returned check. Exiom reserves the right to institute a fee to be paid by the buyer for using a credit or debit card to pay
for the product. In the event that Exiom does start to charge Buyer a fee for paying for a product by credit or debit card Exiom will notify the Buyer in advance, within a reasonable period of time, of said charges. If a payment is not made in accordance with the applicable payment terms, Exiom may suspend all further deliveries, or require full or partial payment in cash, in advance, on new orders. All prompt pay discounts must be taken at the time of payment of the invoice, with no backdating allowed. Credit card payments will not apply to or be eligible for prompt pay discounts. Any rehabilitation Product “secondary discounts” will apply only if payment is made within the applicable payment terms. Unless specifically directed to the contrary, all payments will be applied to the oldest unpaid invoice first. Manufactured in China by validated companies all with appropriate certifications.
FREIGHT AND HANDLING TERMS.
All freight and handling terms applicable to the purchase of Products and parts by Buyer from any division of Exiom shall be posted on the Exiom Website (https://exiomhealth.com) and available to Buyer upon Buyer’s request and may be modified by Exiom from time to time without additional notice to Buyer. The applicable freight and handling terms for each order shall be the freight and handling terms posted on the Exiom website on the date the goods are ordered.PARTIAL SHIPMENTS. Exiom will attempt to combine multiple orders for a single shipment. However, Exiom reserves the right to make delivery in installments, which will be separately invoiced, and Buyer shall make payment for installment per invoice terms without regard to subsequent deliveries. Delay in delivery of any installments shall not relieve Buyer of its obligations to accept remaining deliveries.
DELIVERY AND RISK OF LOSS.
Unless otherwise agreed in writing by Exiom and Buyer, all Products will be sold “Ex works,”. Delivery of Products to Buyer's carrier shall constitute delivery to Buyer; thereafter, all risk of loss or damage shall be Buyer’s responsibility, with claims submitted to Buyer’s carrier.INSPECTION. Claims for shortages, errors in delivery or defects apparent on visual inspection must be made in writing to Exiom within five (5) days after receipt of shipment. Buyer’s failure to give timely notice of the same shall constitute unqualified acceptance of such shipment.
Buyer shall be responsible for any duty tax, fee or charge of any nature imposed by any governmental authority upon the sale of Products to Buyer. In the event Exiom is required to pay such tax, fee or charge, Buyer shall reimburse Exiom within five (5) days.
ANY PROMISE OF WARRANTY IS THE SOLE RESPONSIBILITY OF THE MANUFACTURERS. IF THE BUYER SHOULD REQUEST WARRANTY INFORMATION, THEY MUST DO SO WITHIN WRITING TO THE CUSTOMER SERVICE EMAIL PROVIDED. EXIOM WILL NOT BE HELD ACCOUNTABLE FOR ANY WARRANTY PROMISED MADE ON BEHALF OF THE MANUFACTURER.
LIMITATIONS OF LIABILITY.
EXCEPT AS EXPRESSLY PROVIDED IN EXIOM'S WRITTEN WARRANTY STATEMENT FOR THE PRODUCT AND THIS AGREEMENT, THE PRODUCT IS SOLD “AS IS”, AND EXIOM MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, AND THE PARTIES EXPRESSLY EXCLUDE ALL WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND PRODUCT QUALITY. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY INDEMNIFICATION OR OTHERWISE, SHALL EXIOM BE LIABLE TO BUYER OR ANY CUSTOMER OF BUYER FOR ANY, DIRECT (EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT) INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR DAMAGES OF ANY KIND ARISING OUT OF THE SALE, FUNCTIONING, OR THE USE OF ANY OF THE PRODUCT PROVIDED HEREUNDER, EVEN IF EXIOM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Exiom SHALL HAVE NO LIABILITY TO BUYER (EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT) OR TO ANY CUSTOMER OF BUYER HEREUNDER, AND BUYER AGREES TO HOLD HARMLESS AND INDEMNIFY EXIOM FOR ANY SUCH CLAIMS. In addition to the foregoing, Exiom shall not be liable for (a) any claims arising by reason of death or personal injury except so far as the death or injury is attributable to a failure by Exiom to exercise reasonable care; or (b) any lost profits; or (c) any lost revenue or goodwill. As more fully set forth in Exiom’s warranty policy, Exiom warranty obligations shall not apply to the negligence of Buyer, or end-users of the Products, including
without limitation: (i) any use, modification, maintenance, repair or combination with other devices not in accordance with written instructions; (ii) exposure of the Product to accident or natural causes (such as fire, flood, wind, water, power failure); or (iii) operation of the Product beyond its normal useful life.
ACCEPTANCE OF ORDERS:
Exiom reserves the right to accept or reject any order at our discretion. Any such additional, conflicting, or altered Terms are hereby rejected. None of Exiom Terms and Conditions of Sales may be added to, modified, superseded, or otherwise altered, except by an authorized Exiom manager. If any of these Terms and Conditions is invalid or unenforceable, the invalidity or unenforceability shall not affect the remaining Terms and Conditions which shall continue in full force and effect.
ALL PROCESSED SALES ARE FINAL. Any request to return orders will be denied. Purchase implies Buyer’s agreement to these terms and conditions.CHANGES:Exiom reserves the right to make reasonable changes of any kind in its products and/or its packaging and correct any printed pricing error without notice. The need for continuing improvement of products and other factors require the making of changes from time to time in product design, material specifications, and product dimensions.
ORDERS CANNOT BE CANCELLED ONCE PLACED. Due to the nature of the emergency demand of the products on Exiom’s website, the Buyer agrees to accept full financial responsibility of any order that is placed, and agrees to consider all possible outcomes of placing an order before doing so.
Buyer agrees to indemnify, defend and hold Exiom and its parent, subsidiary, or affiliated companies (“Affiliates”), shareholders, directors, officers, employees, agents and assignees harmless from and against any expenses incurred by or claims made against Exiom arising out of any negligent actions of Buyer including but not limited to the maintenance, repair or alteration of any Product, or the improper assembly or incorporation of the Product into any other device, actual or alleged breach or violation of any contract, law, rule, regulation, or by-law; libel, slander or other form of defamation; breach of any provision of these Terms; and acts, errors or omissions of Buyer or any of its agents, servants, employees, contractors, partners, shareholders, Affiliates or representatives. For purposes of this indemnification, the term “expenses or claims” shall mean and include (i) all losses, obligations, expenses, actual and consequential damages, taxes and costs reasonably incurred in preparing for, defending or settling any demand, investigation, suit, action, claim, inquiry or proceeding, whether or not a formal inquiry, proceeding or investigation had been commenced; and (ii) reasonable accountants’, legal and expert witness fees, costs of investigation and proof of facts, court costs, other litigation expenses and travel and living expenses. Buyer shall give Exiom immediate written notice of any demand, investigation, inquiry, action, suit, proceeding or claim. Exiom at its sole option shall have the right to defend at Buyer’s expense any such liability or claims in which either Exiom or Buyer or both are named as defendants, or reasonably are expected to be named, and Exiom shall not be obligated to mitigate losses. Exiom’s conduct of the defense shall not diminish Buyer’s obligation to indemnify Exiom hereunder. This indemnity shall continue in full force and effect subsequent to and notwithstanding any termination of these Terms.
Exiom shall not be liable for any damage as a result of any delay in performance or nonperformance due to any cause beyond Exiom’s reasonable control, including, without limitation, an act of God, act of the Buyer, delays caused by Exiom’s suppliers or subcontractors, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown, war, riot, delay in transportation, or inability to readily obtain necessary labor, materials or manufacturing facilities.
Exiom may terminate any credit availability within its sole discretion. Buyer understands that Exiom is relying on the truth and accuracy of the information provided to Exiom in any application for credit, as well as any other information provided to Exiom such as financial statements. Buyer authorizes Exiom to conduct any credit investigation of Buyer deemed necessary, including, but not limited to personal credit information about guarantors, general partners, proprietors and individual applicants. Buyerhereby explicitly authorizes trade and bank references to release credit information to Exiom.
These Terms, any Modified Terms and any other agreement between Buyer and Exiom shall be construed in accordance with the laws of the State of California without regard to conflicts of laws. At the election of Exiom, any legal action or proceeding with respect to the enforcement of these Terms, the Modified Terms or any agreement between Buyer and Exiom may be brought in the state or federal courts in San Diego, California, or Denver, Colorado, or wherever Exiom chooses to bring such action. Buyer and any surety or guarantor of Buyer’s obligations to Exiom submits to the exclusive jurisdiction of the state and federal courts in the aforesaid courts, and further waives diligence, demand, presentment for payment, notice of nonpayment and protest, and expressly waives all right to the benefit of any statute of limitations, reinstatement, marshaling, forbearance, extension, redemption, offset, setoff and appraisement, as well as any right to trial before a jury with respect to any action or proceeding brought by Exiom to the fullest extent permitted by law. Buyer shall be further responsible for Exiom’s attorneys’ fees and expenses incurred in enforcing these Terms, the Modified Terms or any agreement between Buyer and Exiom, and all such terms shall be binding upon the parties and their respective heirs, executors, administrators, successors and assigns. These Terms, the Modified Terms and any other written agreement between Buyer and Exiom contain the entire agreement between the parties related to the transactions contemplated hereby. Failure of Exiom to object to provisions contained in any Purchase Order or other communication from Buyer shall not be construed as a waiver of these Terms or the Modified Terms, or an acceptance of any other terms. Any term or condition, which by its nature survives the termination or expiration of these Terms, including but not limited the provisions on warranty, limitation of liability, indemnity, intellectual property and confidential information, shall survive the termination or expiration of these Terms.