Terms & Conditions of Sale
Terms. These terms and conditions (these "Terms") are deemed part of all quotations, acknowledgments, invoices, purchase orders and other documents, whether electronic or in writing, relating to the sale of products and services (collectively, the "Goods") by Omron Healthcare, Inc. ("Omron"). Omron hereby objects to any terms or conditions in Buyer's purchase orders or other documents which are inconsistent with, or in addition to, these Terms.
Pricing. All product prices are subject to change without notice. All taxes, duties and other charges imposed on the sale, delivery or use of the Goods are the responsibility of Buyer.
Payment Terms. Regular terms are net 30 days. All payment due dates are based on the Omron invoice date. Invoices are considered paid on the postmarked date on the envelope transmitting the check to Omron. All sales are FOB, Bannockburn, IL, unless otherwise stated.
RETURNS. In addition to reimbursing Buyer for the price of Products returned to Seller hereunder, Seller shall be liable to Buyer for all transportation, freight, cartage, duty, brokerage fee and shipping charges (both ways) on such returned Products together with such other damages as Buyer may sustain by any breach hereof.
Warranties. Seller warrants that all Products: (a) are merchantable and fit for the particular purpose intended by Buyer; (b) conform to applicable Specifications, including (i) all requirements or guidance of the U.S. Food and Drug Administration and U.S. Consumer Product Safety Commission; and (ii) any other Governmental Requirements, including those relating to safety, the environment and labor and employment practices; (c) will comply with all accepted models and samples and all affirmations of fact, promises or descriptions furnished by Seller; (d) do not infringe the intellectual property rights of any other person; and (e) will be free of latent and patent bugs, errors or defects in design, programming, materials or workmanship as well as in shipping, handling, packaging and processing. Seller shall indemnify Buyer (and its employees, affiliates and agents) for all claims, costs and liabilities (including labor charges and administrative and legal costs) incurred by Buyer in any way in connection with Seller's breach of such warranty, including any of the same: (i) incurred as a result of returning, disposing of, repairing or replacing any Non-complying Product; (ii) arising from Buyer Customer Claims; (iii) arising from personal injury or property damage; (iv) arising from "sales holds" or other limits on sales of Products; and (v) any of the foregoing as they relate to a recall or service campaign of any type.
Indemnities. Seller shall indemnify and hold harmless Buyer and its employees, affiliates and agents, from and against all liabilities, losses, claims, actions, costs, expenses and disbursements (including attorney's fees), related to any investigation, litigation or other proceeding which arises or is alleged to arise in connection with the Products or otherwise from Seller's acts or omissions under this Order (the same to apply whether or not (i) Buyer is a party thereto, (ii) Buyer was negligent in connection therewith or (iii) the foregoing are based on contract, tort or strict liability). Without limiting the foregoing, Seller (at its own expense) shall indemnify and hold harmless Buyer and defend or settle any action brought against Buyer to the extent that it is based on a claim that any Product (not solely designed by Buyer) infringes a patent, copyright, trademark, service mark, trade secret or other legally protected proprietary right.
Insurance. Seller shall maintain public liability, products liability, property damage and workers' compensation insurance in commercially reasonable amounts (not less than US$2 million per occurrence and US$5 million in aggregate) with reputable insurers and as approved by Buyer. All such policies of insurance shall contain appropriate endorsements naming Buyer as an additional insured and requiring the insurer to give Buyer 30 days' prior written notice of any cancellation or substantial change of coverage. Annually, Seller shall provide Buyer an insurance certificate evidencing the foregoing.
Buyer's Property. Unless Buyer agrees in writing, all tools, tooling equipment, Specifications and other materials Buyer provides to Seller shall (a) remain the sole property of Buyer, (b) be plainly marked or otherwise clearly identified by Seller as "Property of Omron" and (c) be stored, used, insured and returned to Buyer in accordance with Buyer's instructions.
Excusable Delay. Either Buyer or Seller may suspend performance during an Excusable Delay; provided that Seller may not suspend performance for more than two weeks hereunder. If Seller discovers facts which may indicate an Excusable Delay, Seller promptly shall (a) advise Buyer of the same and (b) use its best efforts reduce the effect of the Excusable Delay on Buyer. In addition, upon Buyer's request, Seller shall furnish to Buyer (i) information Buyer requests about possible Excusable Delays and (ii) Seller's assurance or contingency plans with respect thereto.
Miscellaneous. (a) Waiver. No failure or delay by Buyer in exercising any right under this Order and no course of dealing between Buyer and Seller shall constitute a waiver of any of Buyer's rights. (b) Assignment. Seller shall not assign, delegate or subcontract its rights or obligations hereunder without the written consent of an Authorized Officer. (c) Law; Etc. This Order is governed by Illinois law (without regard to conflict of law principles) and federal and state courts in Illinois shall have exclusive jurisdiction for any matter related hereto. (d) Damages. In no event shall Buyer be liable for incidental, consequential or similar damages or lost profits. (e) Amendment. This Order (and any accompanying writing signed by an Authorized Officer) constitutes the entire agreement between the parties and may not be amended, discharged or waived without the written agreement of an Authorized Officer. (f) Severability. If any provision is found to be ineffective or invalid under law, such provision shall be severed here from without affecting any other provision. (g) Setoff. All claims for money due or to become due from Buyer shall be subject to deduction or setoff by Buyer for any counterclaim arising out of this or any other transaction with Seller. (h) Delivery; Etc. Time is of the essence under this Order, and Seller shall comply strictly with Buyer's delivery schedules. (h) Definitions. "Buyer Customer Claims" means claims against Buyer made by or through Buyer's customers arising, or alleged to arise, from any Non-complying Product. "Excusable Delay" means any delay not caused by the material fault or negligence of the delayed party and which results from acts of God or public enemy, restrictions, prohibitions, priorities or allocations imposed by a Governmental Authority or embargoes, floods, fires, typhoons, earthquakes, epidemics or other like causes; provided that "Excusable Delay" shall not include lockouts, shortages of labor, lack of or inability to obtain raw materials, fuel or supplies (unless caused solely by Government Requirements) or other industrial disturbances. "Governmental Authority" means any federal, state, local, municipal or other governmental department, agency, court, tribunal or other instrumentality, domestic or foreign. "Governmental Requirements" means any laws, rules, regulations, required consents, authorizations or approvals or any other like requirements, guidelines or standards imposed by a Governmental Authority. "Including" is deemed to mean "including without limitation." "Non-complying Product" means any Product, which upon delivery to Buyer or at any time thereafter, does not comply with the Specifications, Buyer's requirements or any provision hereof. "Specifications" mean (i) drawings, descriptions, samples, models and other specifications or standards furnished by Buyer or furnished by Seller and accepted by Buyer; (ii) industry standards; (iii) quality control standards established by Buyer; (iv) Government Requirements; and (v) descriptions, schedules, affirmations of function or performance or other statements by Seller.