Terms of Sale

Unless otherwise expressly provided with respect to a particular sale, all quotations and sales by Digital Scepter Corporation (“Digital”) are made in accordance with, and subject to the following terms and conditions:

1. Prices

No quoted or published prices constitute offers for sales or completed sales until this instrument is signed by authorized representatives for Digital and the customer. All quoted and published prices may be changed at any time without notice. Unless otherwise stated, written quotations expire automatically thirty (30) days from the date issued. Prices are exclusive of excise, sales, use, and other taxes imposed by any foreign, federal, state, municipal, or other governmental authority, all of which shall be paid by the customer.

2. Terms of Payment

Unless otherwise agreed upon in writing, terms are net cash thirty days from the date of invoice in US dollars. Digital reserves the right at any time to require full or partial payment in advance or to revoke any credit previously extended. Overdue payments shall be subject to finance charges computed at a periodic rate (to the extent permitted by law) of 1.5% per month (18% per year). All fees, charges, or other sums payable hereunder shall be customer’s unconditional obligation, to be made without right of abatement, reduction, or set-off of any nature unless approved in writing by a Digital corporate officer.

3. Delivery

Unless otherwise specified in writing, all sales are F.O.B. carrier, at place of manufacture, or warehouse location, exclusive of insurance cost. Title to and risk of loss for products shall pass to the customer upon the earlier of delivery to the customer or a carrier for shipment to the customer. Without in any way limiting the generality of section 8 below, Digital shall not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause. If any scheduled delivery is delayed over thirty days, Digital may, at Digital’s option, by written notice to the customer, cancel that and all future deliveries without further liability or obligation of any kind. The customer shall be liable for all costs and expenses for Digital’s holding or storing of products if delivery is delayed by or at the request of the customer.

4. Shipment

Unless otherwise agreed upon in writing, transportation and delivery expenses shall be paid by the customer. Digital may select methods and routes of shipment but will not assume any liability in connection with shipment, nor constitute any carrier as Digital’s agent. All shipments will be insured at the customer’s expense and made at the customer’s risk, and the customer shall be responsible for making all claims with carriers, insurers, warehousemen and others for misdelivery, nondelivery, loss, damage, or delay. Shipping dates are approximate and based upon prompt receipt from customer of all necessary information. Partial deliveries shall be permitted.

5. Indemnification

The customer agrees to indemnify Digital against all claims where the product was repaired, altered, abused or misused by the customer, its employees and agents, or a third party to this agreement. No suit or action shall be brought against Digital more than one (1) year after the cause of action has accrued.

6. Cancellation Charges and Returned Goods Policy

No product or order may be returned or cancelled without written notice to Digital and prior written approval by a Digital corporate officer. If approved, Digital will issue a return authorization, which is required of all approved returns, and such goods will incur a fifteen percent (15%) restocking charge if written cancellation was received by Digital after shipment. If, before shipment, (i) Digital receives in writing the cancellation of this order or portion thereof, or (ii) the customer fails to meet any obligation hereunder, causing cancellation of any order or portion thereof, customer agrees to pay Digital cancellation damage charges of $500.00 US dollars. Said restocking and cancellation charges are agreed upon, not as a penalty, but as a result of the difficulty of computing actual damages. This document or copies hereof may be filed with the appropriate authorities as a financing statement to pursue such charges.

7. Specifications

All products are subject to Digital’s standard tolerances for specification. Digital reserves the right to make substitutions and modifications in the specifications of any products.

8. Limited Warranty and Claims

The warranties of this agreement are not transferable. Unless otherwise expressly agreed to in writing by a Digital corporate officer, Digital warrants, to the original customer of the following products only (excluding consumables), that the products will be free from defects in material and workmanship under normal use and service:

(a) Manufacturer’s Warranty applies. Digital’s obligation under this warranty is limited, in its exclusive option, to repair or replacement of parts and materials. A warranty period is not tolled or extended for any period during which product is being repaired by Digital or if it is replaced by Digital during the warranty period. Unless specified above, all other parts and accessories are consumables warranted to have been shipped from Digital in functional condition, but no additional warranty shall apply.

Happening of one or more of the following events will serve to void all warranties and remedies, including any obligations to service, repair, replace or otherwise remedy defects, errors or failures, and Digital shall be in no way responsible for:

• Failure or damage resulting from negligence, alteration, or modification, abuse or misuse of the product, or operation of the product inconsistent with Digital’s published operating instructions;
• Removal, alteration, or effacement of the serial number on the product, unauthorized attempted or actual dismantling, disassembling, service, repair, or improper maintenance of the product, or additions or modifications to the product not authorized by Digital;
• Failure to pay all amounts due to Digital, including any portion of the purchase price or other payment due, whether under contract or otherwise;
• Abrasive wear and tear, or use under abnormal conditions, including environments which are unclean, dusty, or in extremes of electromagnetic radiation, temperature, or humidity;
• Use for other purposes than that for which the product or part is designed;
• Damage during movement of product or damage resulting from an event outside of Digital’s control including, without limitation, fire, flood, lightning, or vandalism;
• Damage to or failure of the product caused by (a) a failure or fault in the premises accommodating the product or (b) use of or with a third party product, part, or component not approved in writing by Digital, including, but not limited to, new, used, or refurbished systems or handpieces manufactured, sold, or repaired by a third party;
• Refusal or failure by or on the part of the customer or its agent(s) to cooperate with Digital in carrying out any necessary repairs or deal in conformity with applicable law, rule, regulation or requirement, including without limitation, the US Export Administration Act; and
• Resale, lease, loan, or renting for use by anyone other than the customer.

In any of the above situations, the product may be serviced, if at all, in Digital’s sole discretion, at customer’s request and expense at Digital’s then prevailing rates for labor, travel, transportation, service, and materials. Digital reserves the right, without liability, not to service product that includes or uses unauthorized or counterfeit parts or components.

All merchandise should be inspected for obvious damage upon arrival. If merchandise has been damaged in transit, Digital’s Service Department must be notified within 72 hours. Digital shall not be responsible for delays or failure to render service or products due to strikes, fires, floods, acts of God, terrorism, or war, government regulations, acts of the federal or any state or local government or agency thereof, judicial action, civil disorder, curtailment of transportation facilities, disaster, or any other cause beyond Digital’s control.

All claims for nonconforming or defective product must be made in writing within ten (10) days after delivery to the customer, and any claims not made within that period shall be deemed waived and released. IN NO EVENT SHALL DIGITAL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, DIRECT, SPECIAL OR CONTINGENT DAMAGES, LOSS OF PROFITS, REVENUE, OR USE, OR ANY OTHER DAMAGES DUE TO ANY CAUSE WHATSOEVER EVEN IF DIGITAL HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. In no case shall the damages exceed the replacement value of the product.

THE FOREGOING CONSTITUTES DIGITAL’S SOLE LIABILITY AND THE CUSTOMER’S SOLE REMEDY WITH RESPECT TO PRODUCTS SOLD BY DIGITAL. EXCEPT AS THUS PROVIDED, DIGITAL DISCLAIMS ALL OTHER REPRESENTATIONS, AGREEMENTS, GUARANTEES, CONDITIONS, AND WARRANTIES, ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY DIGITAL PRODUCT, OTHER GOODS, AND SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. IT IS AGREED THAT DIGITAL’S LIABILITY IS SO LIMITED.

Following expiration of these limited warranties, it is customer’s responsibility to contact Digital’s Service Department to inquire of service agreements that may be purchased, if available. Products not passing directly from these limited warranties to a service agreement shall be subject to inspection and, if necessary, repaired to Digital’s satisfaction at customer’s expense prior to inclusion under any service agreement. Customer shall bear all inspection fees and repair costs, charged at the then-prevailing Digital rates for labor, shipping, parts, and materials.

9. Patents

No sales of any product shall be construed as granting to the customer any license or other right in, or to, any patent, copyright, trademark, or other proprietary right applicable to the product.

10. Assignment

The customer shall not delegate any duties nor assign any rights or claims under this document without Digital’s prior written consent, and any such attempted delegation or assignment shall be void.

11. Compliance with Laws

The customer shall carry out the transactions contemplated by this sale, otherwise deal with the products sold in conformity with all applicable laws, rules, and regulations, of all government authorities, including without limitation, the Export Administration Act, obtain all permits and licenses required in connection with the purchase, installation, sale, shipment, or use of the products, and be solely responsibility to fully understand and comply with laws, rules, and regulations. Any information provided by Digital is given as a convenience only.

12. Governing Law

The application of the UN Convention on Contracts for the International Sale of Goods is expressly excluded. This agreement and matters connected with the performance thereof or otherwise arising out of this agreement shall be construed, interpreted, applied and governed and enforced in all respects by the laws of California. Customer consents to the exclusive jurisdiction of the courts of San Diego, California, agrees to accept service of process by mail and waive any jurisdiction or venue defenses otherwise available.

13. Disclaimer about Third Party Products

With regard to any third party products, services, and/or marketing programs listed on this quotation (each, a “Third Party Product”), customer agrees that it shall enter into a separate contract with such third party and Digital shall have no obligation or liability to customer with respect thereto. Digital does not endorse or guarantee the quality, accuracy, appropriateness, or effectiveness of any Third Party Product. Participation in, use of, or reliance on any Third Party Product is at customer’s own risk. Customer agrees that its execution of this quotation is not contingent on the purchase, entry into or use of any Third Party Product.

14. Additional or Inconsistent Terms

This instrument contains the entire, only agreement between the parties hereto relating to the subject matter hereof, and any unincorporated representation, affirmation of fact, course of prior dealings, promise or condition in connection therewith, or usage of the trade shall not be binding on either party. This instrument is not binding until signed by authorized representatives of Digital and customer. Terms and conditions set forth which differ from, conflict with or are not included in the terms and conditions set forth in this document shall not be part of any agreement between Digital and the customer unless both parties specifically accept such terms and conditions in writing. If any part of this instrument is held to be void, illegal or unenforceable, then it shall be deemed to be severed from this Agreement and the remaining provisions shall continue in full force and effect. The English language is the official language of this Agreement and shall prevail in the event of any discrepancy with an interpretation in another language.

15. Attorney’s Fees

In the event that any party institutes any legal suit, action, or proceeding, including arbitration, against the other party arising out of or relating to this Agreement, the prevailing party in the suit, action, or proceeding shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action, or proceeding, including actual attorneys’ fees and expenses and court costs.