CLEARPATH MEDICAL
GENERAL TERMS & CONDITIONS

 

APPLICATION; ENTIRE AGREEMENT

The following terms and conditions of sale (“the Terms”) govern the sale of goods by ClearPath Medical LLC (“CPM”) to the entity or individual (“the Customer”) named on the quotation, order acknowledgment, or invoice (hereinafter referred to as “Order”). These Terms constitute the complete and exclusive agreement between Seller and Buyer pertaining to the Products identified in the Order.  Buyer agrees to be bound by and accepts these Terms and acknowledges that any Order received and accepted by Seller shall be construed as an acceptance of seller’s offer to sell the Products in accordance with these Terms.  No different, additional, or inconsistent terms or conditions specified in any acknowledgment, purchase order, confirmation or other document pertaining to the Products shall be binding on Seller unless specifically agreed to by Seller in writing by an authorized officer; provided, however, that specific information regarding quantities, delivery dates and other miscellaneous information used to implement the purchase and sale of the Products shall apply to the extent not inconsistent with these Terms.  No previous course of dealing between the parties or trade usage may be used to interpret, limit, or otherwise impair the operation of these Terms.

 

QUOTATION & ORDER CONFIRMATION

Unless otherwise notated, written quotations provided by CPM shall be valid for thirty (30) calendar days from the date of the written quote.  CPM reserves the right to re-quote should any changes be made to the design or materials specifications.  All quotations are non-binding, and any order based upon a quotation is subject to acceptance by CPM, at its sole discretion.  Unless other arrangements are approved in writing by both parties, Customer shall transmit purchase orders by email to orders@clearpathmedical.com.  Orders are not binding on CPM unless and until accepted by way of order confirmation email.

 

TAXES & TARIFFS

Prices on Products do not include any city, state or federal excise taxes, including, without limitation: shipping and handling charges; taxes on manufacture; sales, use, receipts, excise, gross receipts, gross income, occupation, import and export taxes or similar taxes; or customs charges or duties or other charges imposed by governmental entities. Customer is responsible for all such taxes and charges.

 

Additionally, prices do not include, and Customer is responsible for payment of, all applicable import tariffs, duties, or taxes on components, materials, or goods required in the manufacture of the Products. Such import tariffs, duties, or taxes shall be invoiced as separate line items on the final invoice, in accordance with applicable laws and regulations. Customer is responsible for payment of these additional charges, which may vary based on changes in tariff rates or regulations at the time of invoicing.

 

SHIPPING

All Products are shipped F.O.B. CPM’s facility in Tustin, California. Title and risk of loss shall pass upon delivery to the carrier.  Customer shall pay all freight and insurance costs.  Additional fees may be charged by Customer to CPM in the event flatbed or other special services are requested or required.

 

PAYMENT TERMS

A 50% deposit is required for all new tooling/equipment orders.  Full payment shall be made to CPM within thirty (30) days after the date of the applicable invoice.  The preferred method of payment is ACH electronic funds transfer or some other form of electronic payment.  Payment by paper check must be delivered to CPM on or prior to the due date.  Any payment not made when due shall bear interest at the rate of one and one-half percent (1.5%) per month, or the maximum rate allowed by applicable law, whichever is less, from the due date of such payment until the date actually paid.  Customer shall be responsible for all costs and expenses incurred by CPM in enforcing this Agreement, including without limitation, attorney’s fees and costs or collection.

 

CUSTOMER DELAY 

If Buyer delays progress of the manufacture or shipment of the Products for more than 60 days, then CPM may, by written notice to Buyer, treat the applicable purchase order (or relevant part thereof) as deemed terminated by reason of “Buyer Delay” as of the date such 60 day period elapses.  Upon such deemed termination, Buyer shall immediately pay CPM for all services performed, products produced, and materials ordered or in process up to the date of termination.  Additionally, Buyer shall reimburse CPM for all reasonable storage, cancellation or other unavoidable costs incurred in connection with the termination.  CPM may deliver to Buyer any completed goods.  CPM shall not be liable for any delay or failure in performance due to Buyer Delay, and Buyer shall remain responsible for all costs and obligations.  Notwithstanding the foregoing, nothing herein shall prevent ClearPath Medical from pursuing any additional rights or remedies available under law or equity in respect of Customer Delay.

 

WARRANTIES & DISCLAIMER

CPM warrants that the goods purchased herein will be made in a workmanlike manner and in accordance with the specifications agreed upon by and between CPM and Customer.  CPM MAKES NO OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, AND CPM EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY AGAINST INFRINGEMENT OF INTELLECUAL PROPERTY RIGHTS OF A THIRD PARTY AND CPM HEREBY EXCLUDES ANY OTHER WARRANTIES OR REPRESENTATIONS THAT MAY HAVE APPEARED IN ANY OTHER DOCUMENT PROVIDED BY CUSTOMER.

 

Subject to the exceptions and upon the conditions specified herein, CPM shall correct either by repair or, at its election, by replacement, any defects of material or workmanship which is discovered within ninety (90) days from date of delivery of the goods to the original purchaser, provided that investigation and factory inspection by CPM discloses that such defect arose under normal and proper use.  Customer’s failure to give notice of claim of defect or shortage in shipment within ninety (90) days from date of delivery shall constitute a waiver by Customer of all claims in respect to such goods.  THE FOREGOING REMEDIES SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND CPM’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION.

 

All items claimed defective must be returned to CPM, transportation charges prepaid; replacement goods will be returned to Customer, transportation charges prepaid.  Good may not be returned to CPM without prior written authorization and a CPM Return Goods Authorization Number.

 

Representations and warranties made by any person, including distributors and representatives of CPM, which are inconsistent in or in conflict with these terms and conditions (including, but not limited to, the disclaimer of warranties or limitations of liability of CPM), shall not be binding upon CPM.

 

INDEMNIFICATION

CPM shall indemnify and hold Customer harmless from any and all losses, claims, suits, proceedings, expenses, recoveries and damages, including reasonable legal expenses and costs (“Losses”), arising out of (i) CPM’s negligence or willful misconduct or (ii) any and all claims of any nature alleging infringement of any patents, trade secrets or other intellectual property rights used to manufacture the product, other than as a result of Customer’s breach of its warranties and representations or its obligations under this agreement.

 

Customer shall at all times during and after the term of this Agreement be responsible for and shall defend, indemnify and hold CPM harmless from and against any and all Losses arising out of any claims by a third party relating to the Products or any aspect of the performance of this Agreement, to the extent such liability results from a patent or trademark infringement claim, from a product liability claim or from the negligence or willful misconduct of Customer, or any breach of a representation or warranty given herein by Customer.

 

LIMITATION OF LIABILITY

CPM EXPRESSLY DISCLAIMS ANY LIABILITY TO ITS CUSTOMERS, DEALERS AND REPRESENTATIVES AND TO USERS OF ITS PRODUCTS, AND TO ANY OTHER PERSON OR PERSONS FOR SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOSSES OR EXPENSES, OF ANY KIND AND FROM ANY CAUSE WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SALE OR USE OF SAID PRODUCTS REGARLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT CPM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  CPM SHALL HAVE NO LIABILITY FOR ANY ADDITIONAL COSTS NOT SPECIFICALLY IDENTIFIED IN THIS AGREEMENT.  CPM’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT IN ANY CASE EXCEED THE CONTRACT PRICE FOR THE GOODS CLAIMED TO BE DEFECTIVE OR UNSUITABLE.

 

TERMINATION

In addition to any remedies that may be provided under these Terms, CPM may terminate any Order immediately, if Customer: (i) fails to pay any amount when due; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. CPM may also terminate the Order for convenience at any time on prior written notice to Customer.

 

FORCE MAJEURE

CPM shall not be liable for failure to perform or delay in performing, or be deemed in breach or default of its obligations, if, to the extent and so long as, such failure, delay, breach or default is caused by or results from acts beyond CPM’s control, including, but not limited to (i) acts of nature, flood, fire, earthquake, or other natural disaster, (ii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, (iii) total or partial closing of supply factories, (iv) strikes, labor stoppages or slowdowns or other industrial disturbances, (v) shortages of or delays in receiving raw materials or (vi) actions by any governmental authority including prohibition of imports or exports or a substantial increase in custom duties (each, a “Force Majeure Event”).  In the event of any delay in CPM’s performance due to a Force Majeure Event, CPM shall have such additional time for performance as may be reasonably necessary under the circumstances.  Additionally, CPM may allocate its production and deliveries among all of its customers in its reasonable discretion.

 

APPLICABLE LAW

The sale of Products by CPM to Customer shall be governed by the laws of the State of California without regard to its conflict of law principles. Any legal action or proceeding arising out of or relating to the sale of Product by CPM or any provision or performance of this Agreement shall be brought in either the state or federal court of Orange County, California, which shall have exclusive jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement or the goods purchased hereunder.

 

WAIVER

No waiver by CPM of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by CPM. No failure to exercise, or delay in
exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.