DUNE MEDICAL TERMS AND CONDITIONS OF SALE
1. Entire Agreement and Amendment. These Dune Terms and Conditions of Sale which include all exhibits and other attachments attached hereto (the “Agreement”), supersede all prior written and oral agreements, quotes, commitments, purchase orders, acknowledgements, understandings and representations between Dune Medical Devices, Inc. (“Dune”) and the customer identified on the applicable Sales Order Form (“Customer”) related to the Dune products described in this Agreement (“Products”). Any additional terms or conditions (preprinted or otherwise) proposed by Customer shall not become a part of this Agreement. Terms or conditions contained in Customer’s purchase order or other form containing terms and conditions shall have no force or effect. No provision of this Agreement shall be waived, amended, modified, superseded, canceled, terminated, renewed or extended except in a written document signed by an authorized representative from both Parties hereto. Any waiver shall be limited to the particular instance and for the particular purpose when and for which it is given.
2. Payment. Customer agrees to pay invoices Net thirty (30) days from the invoice date. Dune may charge interest on all amounts not paid by the due date, at the maximum rate permitted by law. Unless price protection is explicitly agreed to on the face of the Agreement, Dune reserves the right to increase prices on thirty (30) days written notice to Customer. Prices for Products exclude all insurance, freight, federal, state and local taxes, GST, fees, customs, duties, levies and other governmental assessments, all of which shall be paid by Customer directly or, if paid by Dune, shall be paid by Customer to Dune within thirty (30) days of invoice of the same delivered by Dune to Customer. All orders for Products are non-cancelable and non-refundable by Customer. Customer has no right to return the Product except as expressly set forth in Section 5 of this Agreement.
3. Shipment, Title and Risk of Loss. Shipment shall be scheduled upon receipt by Dune of this Agreement, or if required by Customer, upon acceptance of Customer’s purchase order. All Products will be shipped FOB Origin, regardless of any provisions for payments of freight or insurance, or selection of carrier by Dune, or of the form of shipping documents. Customer is responsible for shipping charges. Dune is responsible for the cost of insurance paid to cover any losses from Dune’s shipment point to Customer’s receipt. Dune will assist Customer in processing any loss claims and Customer will be paid directly by Dune’s insurer.
4. Software and License. The Products may include proprietary software and documentation owned by Dune (“Software”), which is hereby licensed to Customer under a non-exclusive, non-transferable license solely for Customer’s own internal business use in connection with the use of the Products and in accordance with the user documentation provided by Dune. Customer shall not (a) modify, copy, enhance, make derivative works of the Software, (b) disassemble, decompile, reverse engineer or otherwise derive human readable code from the Software, or (c) license, sublicense, lease, rent, assign, transfer, or otherwise distribute the Software. From time to time, Dune may develop new versions or updates for the Software. Customer agrees to allow Dune access to the Products in order to implement any new versions or updates to the Software. Customer may not copy or modify in whole or in part the Software nor make it available in any form to any third party. If Customer is a unit or agency of the U.S. Government or a contractor which will or may supply any Software to a unit or agency of the U.S. Government, Customer agrees that any Software included with or in the Products represents “Commercial Computer Software,” that the government’s use of such software is subject to “Restricted Rights” and that before such Software is transferred, it will be marked with the required restricted rights legend(s) as provided in the Department of Defense Federal Acquisition Regulations 52.227-7013 or corresponding government regulations. Dune shall have the right to terminate the license to the Software upon written notice to Customer if Customer fails to comply with any term or condition herein. Dune retains exclusive ownership of and title to all Software.
5. Limited Warranty. The Product is warranted against defects in workmanship and materials for twelve (12) months from the date of shipment of such Product (“Warranty Period”). Dune may periodically notify Customers of updates in the Equipment; Dune assumes no liability for Product if the Customer declines to permit Dune to update the Equipment. Dune’s sole obligation under this warranty is to repair or replace any defective Product (including the Software). Replacement parts, which may be reconditioned, are warranted from the date of installation for the remainder of the original Warranty Period. This warranty will not apply to defects resulting from misuse, negligence or accident, including, without limitation: operation outside of the environmental specifications for the Product; use of unauthorized supplies; performance of improper or inadequate maintenance by Customer or any third party; installation of software not supplied by Dune; any attempt by Customer or its agents or employees to gain access to those areas of the Product accessible only to authorized service personnel; any attempt by the Customer or its agents or employees to service those aspects of the Product that may only be serviced by authorized Dune personnel; improper use or connection to incompatible equipment; modifications to the Product not authorized by Dune; and external causes such as, but not limited to, power failure. THE FOREGOING PROVISIONS SET FORTH DUNE’S SOLE AND EXCLUSIVE REPRESENTATIONS, WARRANTIES AND OBLIGATIONS WITH RESPECT TO THE PRODUCT, AND DUNE MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED. DUNE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WHETHER ARISING FROM A STATUTE OR OTHERWISE IN LAW, EQUITY OR FROM A COURSE OF DEALING OR USAGE OF TRADE. IN NO EVENT SHALL DUNE BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, MULTIPLE OR OTHER INDIRECT DAMAGES, OR FOR LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES, ARISING OUT OF THE PRODUCT(S), THE MANUFACTURE, SALE, OR SUPPLY OF THE PRODUCT(S) OR ITS USE OR DISPOSITION, EVEN IF DUNE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. DUNE’S LIABILITY ARISING OUT OF THE MANUFACTURE, SALE OR SUPPLY OF THE PRODUCT(S) OR ITS USE OR DISPOSITION, WHETHER BASED UPON WARRANTY, CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE ACTUAL PURCHASE PRICE PAID BY CUSTOMER FOR THE PRODUCT EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN SECTION 6 BELOW. THE FOREGOING LIMITED WARRANTY IS GIVEN SOLELY TO THE ORIGINAL CUSTOMER AND IS NOT GIVEN TO, NOR MAY IT BE RELIED UPON BY, ANY THIRD PARTY INCLUDING, WITHOUT LIMITATION, CUSTOMERS OF CUSTOMER.
6. Patent Indemnity. (a) If Customer is sued by a third party alleging that Product or Customer’s authorized use thereof in accordance with this Agreement infringes a valid United States patent, Dune agrees to defend the suit at its expense, and indemnify Customer for any actual damages awarded or any settlement approved by Dune, provided Customer gives Dune (i) written notice within thirty (30) days of Customer’s receipt of notice of any suit; (ii) continuous cooperation in the defense; and (iii) complete and sole control over the defense and settlement of any such suit. Customer may retain its own counsel and participate in the suit at its sole cost and expense. (b) If Customer is enjoined by a final, unappealable court order, or by a settlement approved by Dune, from using the Product as sold by Dune, Dune, at its option and in its sole discretion, may (i) procure for Customer the right to continue using the Product, (ii) replace or modify the Product to avoid infringement, or (iii) repossess the Product in exchange for a refund of the depreciated value of the Product. Dune’s indemnification obligations set forth in this Section 6 and the remedy selected by Dune above will be Customer’s exclusive remedy for any intellectual property infringement claim with respect to the Products and for any damage, cost, or expense resulting from any court order or settlement enjoining Customer’s use of the Product. (c) Notwithstanding any other provision hereof, Dune will have no obligation to defend, and will not be liable for any costs or damages awarded, in any suit for infringement concerning (i) any Product made by Dune according to specifications supplied by Customer, (ii) any infringement alleged, based on use by Customer of the Product as sold by Dune in combination with another item not sold by Dune, where the alleged infringement arises from the combination or from the practice of a method made possible by the combination, (iii) any infringement alleged, based on any Product as modified by or used contrary to Product specifications by any party other than Dune without Dune’s permission, or (iv) any damage, cost, fee, or expense incurred in connection with, or any injunction, sanction, or other order resulting from any suit that Dune is not given the reasonable opportunity to defend.
7. Choice of Law and Enforcement. Any disputes arising in connection with this Agreement will be governed by and construed in accordance with the internal laws of the of Commonwealth of Pennsylvania, excluding its conflicts of laws principles and excluding the United Nations Convention on Contracts for the International Sale of Goods. The parties acknowledge that the courts within the Commonwealth of Pennsylvania will have jurisdiction.
8. Delays in Performance. Dune will not be liable for failure or delay in shipment due to shortage of materials, labor difficulties, floods, fires, actions taken or threatened by any governmental agencies, acts of God or other contingencies or acts not within the sole control of Dune. Dune reserves the right (a) during the period of any shortage to allocate its available supplies it may determine equitable without any liability to Customer, and (b) to make substitutions and modifications in the specification of any Product, provided such substitutions or modifications do not materially affect the performance of Products.
9. Bankruptcy. Except as may be prohibited by applicable bankruptcy laws, in the event of any insolvency or inability to pay debts as they become due by a party hereto, or voluntary or involuntary bankruptcy proceeding by or against a party hereto, or appointment of a receiver or assignee for the benefit of creditors, the other party may elect to cancel any unfulfilled obligations hereunder.
10. Notices. Any required notices will be given in writing to Dune at 43 Leopard Road, Building 2, Suite 202, Paoli PA and to Customer at the address as evidenced on the face of the applicable Sales Order Form, or to such other address as either party may substitute by written notice to the other party given in accordance with this Section 10.
11. Assignability, Waiver and Severability. Customer may not assign any interest in an accepted order without the prior written consent of Dune. Subject to the foregoing, the rights and obligations herein will be binding upon the successors and assigns of both Dune and Customer. Dune’s failure to exercise any of its rights will not constitute or be deemed a waiver or forfeiture of any rights hereunder. If any of these provisions are held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired.
12. Export. Unless otherwise agreed to by Dune, if Customer exports from the U.S. Products purchased hereunder, Customer will assume all responsibility for obtaining any required export authorization and will comply with all the applicable laws, rules and regulations of all governmental authorities, including, without limitation, the Export Administration Act. Customer will not export or re-export technical data supplied by Dune or the direct product of such data in violation of applicable export regulations and without the explicit written approval of Dune.
13. Compliance with Laws. Dune and Customer agree to comply with all federal and state laws that govern the enforceability and performance of this Agreement. Dune further agrees that it will comply with all applicable federal, state, and local laws, including, but not limited to the following: (a) Executive Order 11246 as amended, which provides in part that Dune will take affirmative action with regard to recruiting and retaining minorities in all levels of its workplace, including all requirements set forth in Section 202 of the Executive Order which are incorporated by reference; (b) laws prohibiting discrimination on the basis of an applicant’s or employee’s protected status; and (c) the requirements of Section 206, 207, and 212 of the Fair Labor Standards Act of 1938, as amended, and the regulations and orders of the Administrator of the Wages and Hour Division issued thereunder.
14. Confidential Information and HIPAA Compliance. Both parties agree to hold in strict confidence the terms of this Agreement and all information provided by a party (the “disclosing party”) to the other party (the “receiving party”) in connection with the performance of their respective obligations under this Agreement that is either marked or identified as the confidential information of the disclosing party, or which, by its nature, the receiving party would reasonably deem to be confidential, including the Software, financial information and pricing information (“Confidential Information”), except to the extent that disclosure is required by applicable law. Either party may disclose the terms of this Agreement and/or Confidential Information of a disclosing party to its employees, professional advisors, agents or independent contractors that are providing services for such party, require the knowledge of such terms or Confidential Information, and are subject to applicable confidentiality obligations or non-disclosure agreements. The receiving party agrees not to use any Confidential Information of the disclosing party for any purpose except in the performance of its obligations hereunder or as otherwise permitted hereunder. The foregoing restrictions on disclosure shall not apply with respect to any information which: (a) was or becomes generally known or publicly available through no act or failure to act of the receiving party; (b) is known by the receiving party without restrictions on disclosure at the time of receiving such information; (c) is rightfully furnished to the receiving party without restrictions on disclosure by a third party without a breach of such third party’s obligations of confidentiality; or (d) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party.
Both parties agree to comply with the applicable provisions of the Administrative Simplification section of the Health Insurance Portability and Accountability Act of 1996, as codified at 42 U.S.C. Section 1320d through d-8, as amended from time to time (“HIPAA”). Dune agrees that should it inadvertently gain access to Protected Health Information (“PHI”) during any interaction with Customer, it will keep the PHI confidential in accordance with the Agreement.
15. Debarment and Suspension. Dune hereby certifies that it is not currently a listed vendor in the Federal General Services Administration’s “List of Parties Excluded from Federal Procurement or Nonprocurement Programs” in accordance with Presidential Executive Orders 12549 and 12689, “Debarment and Suspension”.
16. Access to Books and Records. Dune agrees to maintain a copy of this Agreement and all books, documents and records reasonably necessary to certify the nature and extent of the payments made to Dune for a period of four (4) years after the date of payment by the Customer.
17. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of such together shall constitute one and the same instrument.