FSS-66 - Diagnosys Systems, Inc. - GS24F0036K

Terms and Conditions of Sale

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QUOTATIONS AND PURCHASE ORDERS - Quotations submitted by Diagnosys shall be valid for the period therein stated, or where no period is stated then for a period of thirty days from date that such quotation is issued by Diagnosys. Each Purchase Order is subject to these Terms and Conditions Of Sale that may not be modified or varied without our prior written agreement. For the purpose of this Agreement the terms Goods and Services shall be defined in the Purchase Order(s). A Purchase Order is deemed to be accepted by us only after a written Order Acknowledgement has been issued to you. We reserve the right to refuse to accept any Purchase Order for whatever reason. If at any time after we receive your Purchase Order you wish to make any modifications or additions to it, we shall endeavour to comply with your request, on the understanding that any resultant variations such as price or delivery date must be accepted by us, in writing, in advance of the .change being implement.

PRICES - All prices quoted are IncoTerms 2000 Ex Works our premises and are exclusive of VAT, sales taxes, all other taxes, carriage, insurance, freight fees, export fees, custom duties, installation and commissioning and any of these items that are paid by us at your request shall be invoiced by us and repaid by you within 30 days of the issue of such invoice by us. Whilst we will endeavour to maintain any price quoted, we reserve the right to vary the price. Such variation will be notified in writing 30 days prior to implementation of such price change. Prices quoted and/or agreed with you are based on the quantities of Goods or Services intended to be ordered by you over a specific period. We reserve the right to vary the price if you fail to order such quantities.

These Terms and Conditions of Sale are the only terms and conditions by which Diagnosys (the trading name of Diagnosys Test Systems Ltd. and its subsidiary companies) shall be bound, and they supersede all other agreements between the parties (including the terms contained in your Purchase Order(s) if any). Accordingly, such terms and conditions supersede and neither party places any reliance upon all and any prior representations (not limited to but including all descriptive materials, sales literature, price lists and all other documents issued by us) and you acknowledge that save as expressly stated hereunder, you have not been induced to enter into this

Agreement by any representation whether oral or in writing by us, our employees, servants or agents and you unconditionally waive your rights to claim damages against

Diagnosys or seek to rescind this Agreement in reliance on any statement made that is not set out or referred to in these Terms and Conditions. This acknowledgement and waiver shall not apply to fraudulent misrepresentations. All conditions, warranties or other terms implied by statute or common law are hereby excluded to the fullest extent permitted by law.

c) Diagnosys shall have the right to maintain an action for price of the Goods notwithstanding that the property in the Goods shall not have passed to you

TRADE MARKS - The Purchaser agrees not to remove, alter or deface or allow to be removed altered or defaced any marks, names or numbers affixed to the goods without the written consent of Diagnosys

FORCE MAJEURE - We shall not be in default of, or liable for any delay or failure of compliance with, this Agreement due to acts of nature and/or acts of God (including but not limited to fire or flood, epidemics, wars or riots), public enemy, acts of civil or military authority (including but not limited to any government action), freight embargo, strike, acts or omissions of you or your nominated suppliers, shortage of supplies or materials, or any other cause which is beyond our control, during such happening or event

PAYMENT - All sums payable in respect of the Goods or Services invoiced by Diagnosys must be paid within 30 days from invoice date, unless otherwise agreed in writing by Diagnosys. Time shall be of the essence and interest shall accrue on all outstanding accounts from the date upon which payment falls due until the actual date of payment being received by us at a rate of 5% above the UK base bank rate from time to time and shall accrue at such rate after as well as before any judgement If you default on payment of any sums owing to us, then we shall be entitled to withhold delivery of the Goods or Services and of any further Goods or Services ordered by you and to cancel any contract for the same and to treat the Agreement as repudiated by you and to recover damages accordingly or to affirm the Agreement and to recover the purchase price from you. In the event of non-payment by you by the due date we shall be entitled, in addition to all other rights, to enter upon your land or premises where the Goods may for the time being be and recover possession of them. We may use such force as is necessary to enter the premises and remove the Goods. Without prejudice to other provisions of this clause, if Diagnosys has granted credit facilities to you and you default in any payment thereunder, Diagnosys shall be entitled to withdraw or vary such credit facility at any time by summary notice without either giving any reason for so doing or incurring any liability to you thereby. In the event that legal action is taken by Diagnosys against you for breach of any payment obligations hereunder or otherwise, you shall be responsible for all costs and disbursements incurred by Diagnosys (including, but not limited to, legal and/or attorney's fees) on an indemnity basis

DELIVERY - Any delivery date quoted in respect of your Purchase Order is our best estimate and is subject to you providing us in due time with all necessary order and shipping information. Under no circumstances shall any carrier be deemed to be an agent of Diagnosys

d) In the event of any sale or other disposition of the Goods by you, before you have paid Diagnosys, you shall hold on trust for us the whole of the proceeds of sale and/or the relevant book debt (or if the Goods have been mixed with or incorporated into other Goods, a just proportion of the proceeds of sale and/or the relevant book debt) which proceeds shall not be mixed with any other monies or paid into an overdrawn account

TITLE AND RISK

a) Title to the Goods or Services will pass to you from us on payment in full of the Purchase Price, and all risk and loss or damage to the Goods will pass to you upon handover by Diagnosys at its premises.

b) Until such time as payment has been received by us in accordance with paragraph (a) of this clause you shall:

(i) hold the Goods as our fiduciary agent and bailee

(ii) store and label the Goods in such a manner to enable the Goods to remain separate from all other goods of yours and to be clearly identifiable as the property of

Diagnosys

Diagnosys Systems Inc. 5 Lan Drive, Westford, MA 01886

Tel: 978 392-0406 Fax: 978 392-3622 Website: www.diagnosys.com

(b) Notwithstanding the generality of (a) of this clause, Diagnosys expressly excludes liability for indirect, special or consequential loss or damage, including but not limited to loss or damage to data or to other equipment or property, (whether or not the same may be in Diagnosys's care, custody or control) or for loss of profit, business, revenue, goodwill or anticipated savings

(a) Except to the extent that by the law relating to this Agreement it is not lawful to exclude such liability, Diagnosys shall not be liable to you for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with this Agreement, the Goods or Services, its use or otherwise

SUPPLIER'S LIABILITY

(b) In the absence of a Diagnosys or a third party software license being furnished to you on issue of Diagnosys's letter of acceptance or upon delivery of the software, you hereby accept a non-exclusive, non-transferable license to use the software upon the terms of this Agreement where the same shall apply including the following

(c) In the event that any exclusion of liability contained in these Terms and Conditions shall be held to be invalid for any reason and Diagnosys becomes liable for loss or damage that may be limited or capable of being limited in law, such liability shall be limited to the price of the Goods or Services specified in this Agreement

(d) Diagnosys does not exclude liability for death or personal injury to the extent that the same arises directly from the negligence of Diagnosys or its employees

(e) Diagnosys shall not be liable for any loss of and/or damage to any consigned material supplied to us by you or any third party. You shall retain title to, and be solely responsible for any and all risk in such material

CONFIDENTIALITY - Except with our written consent or as required by law you shall not use or disclose to any other person any information relating to the Goods or

Services or to this Agreement, where such information is indicated by us either expressly or by implication as being confidential, except to your employees obligated to hold such information and to whom disclosure is necessary

ASSIGNMENT - You shall not, without our prior written consent assign any of your rights or obligations hereunder to any other person or company

EXPORT CONTROL - You undertake to comply with and not to do anything, which would render us in contravention of any Export Regulations

Any extra cost or liability incurred by us due to suspension of work or rescheduling of deliveries of Goods or Services arising out of or resulting from your instructions or lack of or mistaken instructions or to any interruptions or delays attributable to you shall be added to the price of Goods or Services and paid for accordingly

SOFTWARE - With respect to all operating system software and applications to be supplied hereunder, the following provisions shall apply

(a) Where you have been furnished with a Diagnosys or a third party software license, the same must be signed and returned to us within seven (7) days or as otherwise specified in the said license unless the said license is a "shrink wrap" license. In the event that you fail to sign and return the said license in accordance with this sub-clause

(i) Diagnosys reserves the right to withhold release of the software; or

(ii) if the same has been delivered, to collect the software from you

CANCELLATION - No cancellation of any Purchase Order shall be accepted unless

(a) the cancellation is received in writing, and

(b) we accept your cancellation conditional upon you agreeing within a reasonable time to pay us

- the sales value of that part of the Goods completed and work done in connection with the Purchase Order and any components and/or materials purchased by us which cannot reasonably be used elsewhere within a reasonable period

- any other costs and liabilities which we incur by reason of your cancellation

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(ii) The license hereby granted shall continue until Diagnosys terminates the license at its sole discretion by written notice

INSTALLATION - You shall be solely responsible for installation of the Goods and Services

INTELLECTUAL PROPERTY - No transfer or license of any intellectual property right whatever is given or implied by these Terms and Conditions of Sale. If there is to be any such transfer or license by either party, it must be expressly agreed in writing by the parties, as must any dealing with any intellectual property rights which may be created by any activity by the parties under any agreement between them. Such express agreement must be made at the same time as, or before, any agreement based upon these Terms and Conditions of Sale. You undertake that you will not infringe the intellectual property in the Goods where such property belongs to Diagnosys. You undertake that you will not copy or otherwise reproduce (other than for normal system operation), translate, adapt, vary, modify, disassemble, decompile or reverse engineer the whole or part of the software save solely in the circumstances permitted by Articles 5 and 6 of Council Directive 91/250/EC of 14th May 1991 on the legal protection of Computer programs

WARRANTY - We warrant that Goods, with the exception of Software, shall be free from defects in workmanship for a period of 12 months from handover by Diagnosys at its premises. We will at our option either repair, replace or refund the price you have paid for the Goods (with the exception of Software) which have failed within the warranty period by reason of faulty design (other than any design made, furnished or specified by you) or workmanship provided that

(a) You notify us immediately of the failure and obtain authorisation from Diagnosys for prompt return of goods, carriage paid by you, with a full written report on the failure unless we agree to inspect in situ

(b) The Goods have been properly stored, installed, and maintained and used having regard in particular to the applicable specifications and instructions relating to the

Goods

(c) Our liability in the case of Goods not of our manufacture shall in no circumstances extend beyond any corresponding liability to us of the manufacturer of such goods

(i) You undertake not to copy, reproduce, translate, adapt, vary or modify the software nor to communicate the same to any third party without Diagnosys's consent and to use the software only on the equipment specified or for the use with which the software is licensed

If, upon inspection, it is found that the returned Goods are not defective within the terms of our Warranty, you shall pay our standard repair charges to repair the Goods including inspection costs and all transport and shipping costs associated with returning the Goods to you

Goods supplied under these Terms and Conditions (excluding software) either will be newly manufactured or will have been reassembled or reconditioned from serviceable new and used parts, and will have been thoroughly inspected and tested for good working order We shall not be liable for any consequential loss or damage whatsoever as a result of any defect in the Goods. We shall have no liability whatsoever for or as a result of the condition of the Goods or their fitness or suitability for any particular purpose and all conditions, warranties and representations whether express or implied by statute or otherwise are expressly excluded

CHANGES TO GOODS AND SERVICES - Diagnosys reserves the right to change any aspect of any of the Goods and Services supplied at its sole discretion, including but not limited to changes in the description, part number, catalogue details, packaging, marketing materials, specifications, instructions or technical changes within the Goods and Services themselves

INSOLVENCY - We shall have the right to terminate the Agreement forthwith if you become insolvent or bankrupt or make any arrangement with your creditors or suffer a receiver or administrative receiver to be appointed over your assets or (in the event that you are a body corporate) you enter into liquidation or suffer or allow or undergo any equivalent insolvency process under the laws of any jurisdiction throughout the world and in any such circumstances we shall have no further obligation hereunder and the price for Goods delivered shall become immediately due and payable

REPRESENTATION - Unless otherwise permitted under the terms of a separate and fully executed Distributorship Agreement entered into between you and Diagnosys, it is agreed and understood that you are not the agent or representative of Diagnosys and that you have no authority or power to bind, contract in the name of, or to create a liability against Diagnosys in any way or for any purpose and that you will not hold yourself out to third parties as having any such authority or power

COMPLIANCE WITH REGULATIONS - You warrant that you will comply with the provisions of all relevant statutes, regulations and by-laws and that you have obtained every necessary licence or consent that may be required in connection with the on-sale and or use of the equipment supplied

WAIVER - Failure of either party to enforce, at any time, any provisions, of this Agreement shall not be construed as a waiver of such provision or of any other provisions, or of the right of such party thereafter to enforce such provision

SEVERANCE - Any provision of this Agreement, which is or may be void or enforceable shall to the extent of such invalidity be deemed severable and shall not affect any other provision of this Agreement

THIRD PARTIES – A person who is not a Party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act

APPLICABLE LAW - Any controversy or claim of whatever nature arising out of or relating to this contract, its formation or breach thereof shall be governed by the Laws of

England whose Courts shall be the exclusive Courts of competent jurisdiction