GENERAL CONDITIONS OF SALE 

Version V02.00.00 – last updated: 10/10/2017

  1. Applicability.  

 These terms and conditions of sale (these “Terms“) are the only terms which govern the sale of the goods (“Goods“) and services (“Services“) by DEPISTEO, LLC (“Seller“) to the buyer named on the reverse side of these Terms (“Buyer“). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods and Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.

  • The accompanying invoice (the “Sales Confirmation“) and these Terms (collectively, this “Agreement“) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
  • Notwithstanding anything to the contrary contained in this Agreement, Seller may, from time to time change the Services without the consent of Buyer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Sales Confirmation.
  1. Delivery of Goods and Performance of Services.  
    • The Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of finished Goods. Time is not of the essence and all delivery dates are good faith estimates.  Any failure to deliver by an estimated date does not constitute a breach of Seller’s obligations. 
    • Quotes for orders are valid for thirty (30) days from the date of the quote.
    • Orders will be processed in the order of receipt by the Seller. Seller shall not be liable for any delays, loss or damage in transit.
    • Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to [Depisteo Customer Service, 112 Skyline Drive, Arlington WI 53911, USA] (the “Delivery Point“) using Seller’s standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods within two (2) business days of Seller’s written notice that the Goods have been delivered to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.
    • Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
    • If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
    • Seller shall use reasonable efforts to meet any performance dates to render the Services specified in the Sales Confirmation, and any such dates shall be estimates only.
    • With respect to the Services, Buyer shall (i) cooperate with Seller in all matters relating to the Services and provide such access to Buyer’s premises, and such office accommodation and other facilities as may reasonably be requested by Seller, for the purposes of performing the Services; (ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Seller to perform Services in accordance with the requirements of this Agreement; (iii) provide such customer materials or information as Seller may request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
  2. Non-Delivery.  
    • The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
    • Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within ten (10) business days of the date when the Goods would in the ordinary course of events have been received.
    • Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
    • Buyer acknowledges and agrees that the remedies set forth in Section 3 are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 3(c), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
  3. Quantity.

If Seller delivers to Buyer a quantity of Goods of up to five percent (5%) more or less than the quantity set forth in the Sales Confirmation, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the Sales Confirmation adjusted pro rata.

 

  1. Shipping Terms.

Shipping, packing and insurance shall be at the Buyer’s expense pursuant to Ex Works terms, unless otherwise agreed in a separate writing signed by authorized representatives of both parties.

 

  1. Title and Risk of Loss.

Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Georgia Uniform Commercial Code.  Buyer agrees to file such documents as are necessary to perfect Seller’s aforementioned interest.

 

  1. Buyer’s Acts or Omissions.
    • If Seller’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants or employees, Seller shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.

 

(b)                              Only persons agreed upon expressly by Seller are authorized to carry out work on Seller equipment without jeopardizing the CE marking. Seller has designed and made available utility software required for the maintenance of its devices. Non-authorized persons, and thus those not referenced by Seller, do not have in their possession this software.

  1. Inspection and Rejection of Nonconforming Goods.  
    • Buyer shall inspect the Goods within two (2) business days of receipt (“Inspection Period“). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.

 

  • If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility located at [Depisteo Customer Service, 112 Skyline Drive, Arlington WI 53911, USA]. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
  • Buyer acknowledges and agrees that the remedies set forth in Section 8(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 8(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
  1. Price.  
    • Buyer shall purchase the Goods and Services from Seller at the price[s] (the “Price[s]“) set forth in Seller’s published price list in force as of the date that Seller accepts Buyer’s purchase order.

 

  • Buyer agrees to reimburse Seller for all reasonable travel and out-of-pocket expenses incurred by Seller in connection with the performance of the Services.

 

  • All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.

 

  1. Payment Terms.  
    • Buyer shall pay all invoiced amounts due to Seller within thirty (30) days of Seller’s invoice. Buyer shall make all payments hereunder by wire transfer and in US dollars.

 

  • Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods or performance of any Services if Buyer fails to pay any amounts when due hereunder and such failure continues for forty-eight (48) hours days following written notice thereof.

 

  • Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.

 

  1. Limited Warranty.  
    • Seller warrants to Buyer that for a period of two (2) years from the date of shipment of the Goods (“Warranty Period“), that such Goods, except the TABATABA (which has a one (1) year warranty), shall be free from material defects in material and workmanship (“Warranty”).
    • Warranty claims do not extend the Warranty Period. Certain Goods are not subject to the Warranty, including but not limited to: Pipette, trapper and transportation elements. Buyer shall seek confirmation from Seller to clarify if the Warranty applies to the particular Goods ordered by Buyer.
    • Warranty Exclusions. The Warranty does not cover (A) patent defects; (B) defects or deteriorations caused by (I) force majeure; (II) normal wear and tear of mechanical parts; (III) negligence, faulty maintenance or abnormal use (however momentary) of the product after delivery to the Buyer; or (C) modifications or repairs were made by persons other than the Seller’s authorized personnel.
    • EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 11(A), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
    • Products manufactured by a third party (“Third Party Product“) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty in Section 11(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
    • The Seller shall not be liable for a breach of the Warranty set forth in Section 11(a) unless: (i) Buyer gives written notice of the defective Goods or Services to the Seller’s customer service department in Wisconsin, indicating the serial number of the device and an accurate as possible description of the nature of the problem, to Seller within ten (10) business days of the time when Buyer discovers or ought to have discovered the defect; (ii) if applicable, Seller is given a reasonable opportunity after receiving the notice of breach of the Warranty set forth in Section 11(a) to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods or Services are defective. The product must be returned in its original packaging and include the entire product and all accessories.  Shipping, transport and insurance shall be paid by the Buyer.  Buyer shall notify Seller if Buyer no longer has the original packaging.  Seller shall ship at Buyer’s cost replacement packaging.  If Buyer declines to pay for such replacement packaging, Buyer accepts responsibility for all damage resulting from packaging. Seller shall pay the shipping, transport and insurance for the return cost for material exchanged or repaired during the Warranty Period due to defects.
    • The Seller shall not be liable for a breach of the Warranty set forth in Section 11(a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.
    • Subject to Section 11(f) and Section 11(g) above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller.
    • THE REMEDIES SET FORTH IN SECTION 11(H) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTION 11(A). 
  2. Limitation of Liability.  
    • IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT [OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    • IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS AND SERVICES SOLD HEREUNDER.
    • The limitation of liability set forth in Section 12(b) shall not apply to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions.
  3. Insurance.

During the term of this Agreement and for the duration of any applicable Warranty Period, Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability, as well as fire, theft and water damage) in a sum no less than one million dollars ($1,000,000), with financially sound and reputable insurers. Upon Seller’s request, Buyer shall provide Seller with a certificate of insurance from Buyer’s insurer evidencing the insurance coverage specified in these Terms. Buyer shall provide Seller with thirty (30) days’ advance written notice in the event of a cancellation or material change in Buyer’s insurance policy. Except where prohibited by law, Buyer shall require its insurer to waive all rights of subrogation against Seller’s insurers and Seller.

 

 

 

 

  1. Compliance with Law.

Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.

 

  1. Traceability and Recordkeeping.
    • In order to ensure a proper record of provenance and tracking of the Goods so that any recall can be conducted in a swift manner, Buyer shall keep proper written records of all Goods and Services received from Seller and any Goods Buyer provides or sells to a third party. All Buyers who conduct distributor sales and deliveries are responsible for keeping proper records of traceability to the final customer, including in relations to follow-ups for stock returns, standard exchanges and/or updates.  
    • So as not to effect the traceability system of the Seller, or the performance of Seller devices, distributor Buyers agree not to carry out interventions on the devices.
    • Buyer shall not transfer or sell any of the Goods outside the continental United States of America.
    • All transfers of ownership rights of equipment or its place of use shall be communicated to Seller for the purposes of updating traceability files. This transfer shall only be authorized by Seller if the product concerned was returned to Seller’s After Sales Service for annual servicing and the new owner or user has at their disposal the device user manual, its software and the approved license contract. Maintenance contracts may be transferred on the condition that they have been paid in whole. All software updates shall be applied according to the conditions in the license contract. All supplied updates must be installed immediately upon receipt by the user, otherwise the Seller After Sales guarantee shall be void.
    • All software updates shall be applied according to the conditions in the licence contract. All supplied updates must be installed immediately upon receipt by the user, otherwise the FIM MEDICAL After Sales guarantee will become void.
  2.  

Distributor Buyers agree (i) not to distribute any documentation about the Goods other than documentation provided by the Seller; (ii) not to translate and distribute any documentation about the Goods provided the Seller.

 

  1. Termination.

In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount within 48 hours of a request for payment under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) 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.  Seller has the right to suspend any unpaid orders in progress while payment remains outstanding.

 

  1. Waiver.

No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. 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.

 

  1. Confidential Information.

All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.

 

 

  1. Force Majeure.

The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions (including government shutdowns or sequesters), war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.

 

  1. Relationship of the Parties.

The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

 

  1. No Third-Party Beneficiaries.

This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

 

  1. Governing Law.

All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule (whether of the State of any other State in the United States or any other jurisdiction, including outside the United States) that would cause the application of the laws of any jurisdiction other than those of the State of Georgia.

 

  1. Arbitration.

Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be determined by final and binding arbitration administered by the American Arbitration Association (“AAA”), such arbitration to be held in the City of Atlanta and applying the law of the State of Georgia.  Each party shall bear its own arbitration costs.

 

  1. Notices.

All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice“) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

 

  1. Severability.

If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

 

  1. Survival.

Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions: Insurance, Compliance with Laws, Confidential Information, Governing Law, Arbitration and Survival.

 

  1. Amendment and Modification.

These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.

 

  1. After Sales Services

All After Sales Service returns must have an RMA attributed.  

Seller proposes After Sales Services standard rates depending on the date of last return of the device to the After Sales Service department. Rates include checking device parts and vital functions, verification and calibration, firmware and external software update, replacement of used parts (with the exception of certain parts listed above), labor costs and shipping costs to a US mainland address. Not included are rates for replacing the following parts:

– VT1®: different electronic boards, optical motors;

For this case, an extra quote will be sent.

In the event of breakdown, whether during or outside of the guarantee period, Seller will make its best endeavor and take any action necessary to service such breakdowns with all due dispatch. However, under no circumstances may Seller be held liable for any delay whatsoever nor assume any costs or consequences whatsoever in connection with the length of immobilization of the equipment within its departments.

  1. Client Claims and incidents

Seller must be informed of all client claims and incidents as soon as possible. Contact the switchboard.