Terms and Conditions

1. Agreement: You (“Customer”) have agreed to purchase and Acertara Acoustic Labs (“Supplier”) has agreed to provide products or services, and/or license proprietary software as stated on a quotation (“Quote”) to which these terms and conditions are attached and made a part thereof, all documents taken together being referred to as the “Agreement”. The parties have caused this Agreement to be executed by its duly authorized officers or representatives. Acceptance of any Customer Purchase Order (PO) is expressly and exclusively made conditional on Customer’s assent to these contractual terms and conditions.
2. Entire Agreement: This Agreement including these terms and conditions comprise the entire Agreement between the parties and supersede all prior proposals, quotations, agreements, promises, or representations between the parties, whether verbal or written. The terms of this Agreement will prevail notwithstanding any variance with the terms of any present or future purchase or service order or request by the Customer for products or services. Supplier expressly objects to and rejects all inconsistent or additional terms, conditions and limitations contained in any Customer forms or other communications. If you do not communicate an objection to these terms and conditions in writing prior to shipment of products and provision of repair services, you will be deemed to have accepted these terms and conditions and they will control the transaction in all respects.
3. Amendment; Waiver; Survival: Terms and conditions set forth in any PO or other verbal or written communication provided by the Customer to Supplier which differ from, conflict with, or are not included in this Agreement shall not become a part of any contract between Supplier and Customer unless such terms and conditions are specifically accepted in writing by an authorized agent of Supplier. This Agreement may be amended only in writing, signed by authorized officers or representatives of both parties. Any failure to enforce any provision of this Agreement is not a waiver of that provision or of either party’s right to later enforce all provisions.
4. Prices: All published prices or prices quoted by our representatives are subject to change without notice. Written quotations expire automatically 10 calendar days from the date issued, unless expressly stated in writing and are subject to change or termination during that period. All prices are subject to adjustment on account of specifications, quantities, shipment arrangements or other terms and conditions that are not part of the original price quotation. Defective products that may have been altered or previously repaired or that may have internal damage that is not identifiable through Supplier’s standard evaluation process could require additional work and charges over and above what is reflected in the original Quote and may impact Supplier’s ability to repair the product. Therefore, Supplier reserves the right to alter the pricing quoted or to decline to repair defective products. Prices are exclusive of all excise, sales, import, use and other taxes imposed by any state, municipal or other government authority, all such taxes shall be paid by the Buyer. The Buyer shall be responsible for obtaining and providing to the Seller any certificate of exemption or similar document required for exemption from any sale from sales tax, use or similar tax liability. All prices shall be as specified by Seller or, if no price has been stated, shall be Seller’s price in effect at the time of delivery.
5. Order Placement: Customer may order products and services from Supplier by using Customer’s standard PO documentation system. Customer PO shall include a valid PO Reference Number, physical ship-to address, bill-to and contact information, valid part number and accurate product description, quantity, unit price, total PO amount, applicable sales tax information, method of shipment, courier account information and shipping insurance requirements. Written POs received by Supplier are assumed to be generated by authorized agents of Customer. Verbal POs are not considered an acceptable method for order placement.
6. Payment Terms: Invoices are payable in United States currency only. Unless otherwise expressly stated, payment terms are net cash on or before the fifteenth (15th) day following the date of invoice. Supplier reserves the right at any time to require full or partial payment in advance. Overdue payments shall be subject to finance charges computed at a periodic rate of one and one half percent (1.5%) per month or the maximum rate permitted by applicable law. Customer will reimburse Supplier for reasonable costs (including attorneys’ fees) relating to collection of past due amounts. Any credits that may be due to Customer under this Agreement or any other Supplier agreements may be applied first to any outstanding balance. All Customer orders are subject to Supplier’s ongoing credit review and approval process. Payment terms may change based on a change to Customer’s credit status with written notice from Supplier.
7. Export Controls: Equipment, software, parts and/or any technical data to be exported from the United States may be controlled under the U.S. Export Administration regulations and thus be subject to the approval of the U.S. Department of Commerce or State prior to export. Any export or re-export by Customer, directly or indirectly, in contravention of such regulations is prohibited.
8. Delivery: The Seller shall not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond the Seller’s control including, without limitation, acts of nature, unavailability of supplies or sources of energy, riots, wars, fires, epidemics, lockouts, strikes, and slowdowns, delays in delivery by the Seller’s suppliers, or acts or omissions of the Purchaser.
9. Transportation, Title and Risk of Loss: All products shipped by Supplier are shipped Free-On-Board (F.O.B) origin pursuant to Section 2-319 of the Uniform Commercial Code. Customer is responsible for payment of freight and for arranging and paying for insurance against property damage or loss until delivery to Customer. Title and risk of ownership to equipment passes to Customer at Supplier’s shipping dock.
10. Shipment: Unless specified instructions to the contrary are supplied by the Customer, methods and routes of shipment will be selected by Supplier, but by doing so Supplier will not thereby neither assume any liability in connection with shipment nor constitute any carrier as the agent of the Seller. All shipments will be insured at the Purchaser’s expense and made at the Purchaser’s risk, and the Purchaser shall be responsible for making all claims with carriers, insurers, warehouseman and others for misdelivery, non-delivery, loss, damage, or delay.
11. Core Exchanges: Unless otherwise indicated in the Quote, all orders for products which are not manufactured by Supplier under the Agreement are provided on an “Exchange” basis, and therefore require the return of an equivalent part (“Core”) to Supplier within five (5) business days of delivery of Product. Documentation provided with Core shall clearly reference Supplier RMA and be returned in Supplier’s original package using generally accepted industry standards with the RMA reference number clearly visible on the box. All shipping, handling and packing expenses relating to the return of the Core shall be the responsibility of the Customer. Core exchanges that are not returned within 10 (ten) days will be charged the applicable outright charge.

12. Loaners:The supplier may loan to Customer products for temporary use while Customer’s defective product is in transit, evaluation or repair (“Loaner”). The Loaner may be provided free of charge provided the following conditions are met: (i) if Supplier ships loaned items to Customer and the Customer’s defective product(s) is (are) received by Supplier within five (5) business days (ten business days for International shipments), (ii) if Supplier has received the Customer defective product and provided a recommended course of action for repair or exchange the defective product and the customer responds within five (5) business days and (ii) if Supplier has returned Customer product(s) and Supplier has received the loaned items within five (5) business days. If, after Supplier has recommended a course of action for repair or exchange of the defective product and customer does not respond within five (5) business days, a charge per day per loaned item ($150 per day for general, endocavitary and volumetric ultrasound transducers, $250 per day for transesophageal (TEE) ultrasound transducers) will be charged for the products until the Supplier’s items are returned.  If loaner units are not received by Supplier within thirty (30) days after Supplier recommends a course of action, Customer will be charged for the full outright market price of the loaned items.  If, after Supplier has recommended a course of action for repair or exchange of the defective product, Customer requests a return of the defective Product and rejects any service by Supplier, Customer will be charged a minimum $150 evaluation fee and the appropriate loaner fee for the use of any loaned items ($150 per day for general, endocavitary and volumetric ultrasound transducers, $250 per day for transesophageal (TEE) ultrasound transducers); if a loaner unit is damaged or is in need of repair or replacement after Customer returns to Supplier, Customer will be charged the lower of the Supplier repair list price if repairable or the market value of the loaner unit unless otherwise agreed to by Supplier in writing prior to the provision of the services.

13. Approval to Evaluate: By sending in a defective item to Supplier for repair, Customer agrees to allow Supplier to conduct an extensive evaluation of Customer’s product, which may include full disassembly of the item. Customer understands that this is necessary to provide an accurate evaluation and expressly authorizes Supplier to perform such actions. Upon request by Customer, Supplier will make reasonable efforts to restore Customer product to previous condition prior to return of item to Customer.
14. Intellectual Property: Supplier assumes no obligation of liability with respect to infringements of United States or foreign patents, copyrights, trademarks or other proprietary rights arising out of the Purchaser’s purchase use, possession, sale or delivery of any products sold hereunder. The Purchaser shall indemnify and hold the Seller harmless from any and all claims, liabilities, damages, or expenses resulting from infringements or alleged infringements of United States or foreign patents arising from compliance by Supplier with any designs or specifications provided by the Purchaser. No sale of any product shall be construed as granting to the Purchaser any license or right in or to any patent, copyright, trademark or other proprietary right applicable to the product.
15. Governing Law; Jurisdiction and Venue; Mediation: This Agreement shall be governed by, construed and enforced in accordance with the laws of the state of Colorado, United States of America. Jurisdiction and venue for the adjudication of any actions will solely lie in the state or federal courts in Denver, Colorado, at Supplier’s option. The parties agree that, except to seek injunctive relief to prevent a breach of confidentiality or intellectual property rights, they will enter into a non-binding mediation process with a well-recognized, professional mediator located in Denver, Colorado in a good faith attempt to settle any disputes under this Agreement prior to resorting to litigation.
16. Warranty: Supplier warrants that its services will be performed by qualified employees or subcontractors in a professional and workmanlike manner. Supplier warrants that products and services sold or otherwise provided hereunder will be functional under normal use for a ninety (90) day limited warranty period unless otherwise noted. THE WARRANTIES IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES. SUPPLIER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.Written warranty claims shall be made by Customer through the Supplier’s standard Return Material Authorization (RMA) process, either by calling or e-mailing Customer Service using the information on the Quote or product invoice.
17. Limitations of Remedies and Liability: Supplier will promptly re-perform any nonconforming services or replace non-conforming products provided all claims for defect or nonconformity are communicated to Supplier in writing within ninety (90) days from the date of receipt of product or service by the Customer. Supplier will, at its option, repair, replace or credit any parts which it determines is defective; provided that the Customer’s conduct has not caused or contributed to the defect. If the defect or problem is not related to specific repairs or products provided by Supplier under this Agreement, or if the damage is caused accidentally or through misuse or abuse as determined by Supplier, Supplier shall at Customer’s option: a) repair the product and charge Customer list price for repair; b) return the product to the Customer unrepaired; c) source a replacement product for Customer at current market price.Except as provided below with respect to tort liability arising from gross negligence or willful misconduct, SUPPLIER’S MAXIMUM LIABILITY UNDER THIS AGREEMENT TO CUSTOMER MAY NOT EXCEED THE PRICE OF THE SERVICE OR PARTS INVOLVED IN THE CUSTOMER CLAIM. IN NO EVENT SHALL SUPPLIER BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION, LOST REVENUES OR PROFITS, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES WHETHER ARISING FROM BREACH OF THE TERMS IN THIS AGREEMENT, BREACH OF WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY. SUPPLIER SHALL HAVE NO LIABILITY FOR ANY ASSISTANCE NOT REQUIRED UNDER THIS AGREEMENT WHICH SUPPLIER OR ITS EMPLOYEES OR SUBCONTRACTORS PROVIDED TO THE CUSTOMER.NEITHER PARTY HAS ANY TORT LIABILITY TO THE OTHER ARISING FROM THIS AGREEMENT, EXCEPT TO THE EXTENT EITHER PARTY COMMITS GROSS NEGLIGENCE OR WILFUL MISCONDUCT.
18. Acertara Bank Account Information:
    Please make payments to:

    Acertara Acoustic Laboratories, LLC

    1950 Lefthand Creek Lane

    Longmont, CO 80501

    NAME: JPMORGAN CHASE AND CO.

    ACCOUNT NUMBER: 525368061

    ABA ROUTING NUMBER: 102001017

    SWIFT CODE: CHAS US33

    ACCOUNT NAME: ACERTARA ACOUSTICS LABORATORIES, LLC

    Tax ID # 45-2377335
19. Returns: Products are not in any event to be returned to the Seller without the Seller’s prior written authorization. Returns are subject to a minimum 20% restocking fee.
20. Termination: Any order accepted by the Buyer prior to delivery shall be subject to a termination charge of not less than 10% of the order value to cover costs of processing and the order handling. No order for custom products may be terminated by Buyer except by mutual agreement. Terminations by mutual agreement are subject to the following conditions: (1) the Buyer will pay, at applicable contract prices, for all products which are completely manufactured and allocable to the Buyer at the time of the Seller’s receipt of notice of termination. (2) the Buyer will pay all costs, direct and indirect, which have been incurred by the Seller with regard to products which have not been completed manufactured at the time of the Seller’s receipt of notice of termination plus a prorata portion of normal profit on the contract (3) the Buyer will pay a termination charge on all other products affected by the termination; the Seller’s normal accounting practices shall be used to determine costs and other charges.
21. Additional or Inconsistent Terms: Terms and conditions set forth in any document provided by the Buyer to the Seller which differ from, conflict with or are not included in the terms and conditions set forth herein shall not become a part of any agreement between the Seller and the Buyer unless such terms and conditions are specifically accepted in writing by the Seller. To the extent that this document may constitute an acceptance, such acceptance is expressly conditioned on the Buyer’s assent to any additional or consistent terms and conditions set forth in this document.
22. Security Interest: Seller reserves and the Buyer grants to Seller a security interest in all products sold and all proceeds to secure the full payment and performance by the Buyer of its liabilities and obligations to Seller. The Buyer acknowledges that this document or copies of this document may be filed with the appropriate authorities as a financing statement and agrees to execute and deliver such other documents as we may request in order to perfect our security interest.
23. Specifications: All products are subject to our standard tolerance for specifications. Seller reserves the right to make substitutions and modifications in the specifications of any products provided substitutions or modifications do not materially affect the performance of the products or the purposes for which they can be used.

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