Terms & Conditions

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.

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. 

TAXES/FEES.

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.

WARRANTY. 

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.

RETURNS.

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.

CANCELLATION:

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. 

INDEMNITY.

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.

DELAYS. 

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.

CREDIT. 

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.

MISCELLANEOUS.

 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.