Last updated: July 21, 2022

1. ACCEPTANCE OF PURCHASE ORDERS
The sale of all goods and related services (collectively, “Products”) referenced in the purchaser's ("Customer") written Purchase Order to MedWand ("Supplier") are expressly conditioned upon the Terms and Conditions set forth below. Additional or different terms specified or referenced in the Purchase Order are hereby excluded and shall not be deemed effective or binding unless expressly agreed to in writing by an authorized officer or director of Supplier. These Terms and Conditions represent the entire agreement between Customer and Supplier pertaining to the Purchase Order and shall supersede all prior oral and written agreements, proposals, communications, and documents. No Purchase Order placed by Customer shall be deemed accepted until Supplier issues Customer a written Purchase Order Acknowledgement. Any amendment, change order, revision, or termination to an already-accepted Purchase Order shall be subject to acceptance by an authorized representative of Supplier.

2. PRICES, TAXES
2.1. All prices set out in Supplier’s Quotation (“Price”) are in United States Dollars. Nothing set forth in Customer’s Purchase Order shall modify or amend the quoted Prices, quantities, delivery estimate, shipping or Payment terms unless such modifications or amendments are agreed to in writing by an authorized representative of Supplier prior to delivery to Customer of written Purchase Order Acknowledgement.
2.2. All prices are exclusive of any taxes (including, without limitation, sales, use, value added, goods and services, business, property (real or personal, tangible or intangible), license, documentation, registration, import, export, excise, franchise, stamp, or other tax), custom fees or tolls, levy, impost, withholding, fee, duty or other charge of any nature imposed by any governmental authority or other tax authority in any jurisdiction, and any and all fines, penalties, additions to tax, interest and other charges relating thereto (collectively, “Taxes”). All Taxes shall be paid by Customer in addition to the Price. If any payment by the Customer is subject to withholding tax, the Customer agrees to increase the amount of any payment which is subject to a withholding or pay an additional amount as is necessary to ensure that Supplier receives the same amount it would have received if there had been no withholding. Customer shall deliver any certifications and other documents required to demonstrate eligibility and to benefit from any exemption or other relief from any Tax.

3. PACKAGING, SHIPPING
3.1. Supplier shall pack all Products in accordance with its standard commercial practices. If Customer has any special shipping or handling requirements, Customer shall notify Supplier in a timely manner regarding any such special requirements, and Customer shall be responsible for any increase in cost to pack the Purchase Order.
3.2. The Price does not include any shipping or handling charges, and Customer shall incur both the cost and the risk for bringing the Products to their final destination. Supplier shall notify Customer when the Products are available at Supplier’s facility for pickup and Customer shall be responsible for arranging to have the Products picked up from Supplier’s facility, and whenever appropriate for completing any export documentation and clearing the Products through US Customs. In the event Customer requests Supplier to deliver Products to an agreed location within the United States, the destination address shall be clearly identified in the Purchase Order and Customer shall provide an account number that Supplier can use for the shipping costs.
3.3. In the absence of specific instructions, Supplier shall select the carrier and, at its discretion, may ship “collect”, prepaid or subject to invoice payment terms, but shall not be deemed to have assumed any liability in connection with the shipment, nor shall the carrier be construed as an agent of Supplier.

4. DELIVERY, TITLE, AND RISK OF LOSS
4.1. Supplier’s quoted delivery schedule represents its best estimate and is based on current schedules and workload. Supplier shall have no liability for delay, or any damages or losses sustained by Customer as a result of such estimate not being met. Partial deliveries shall be permitted.
4.2. Unless otherwise agreed to by Supplier in writing, delivery shall be deemed to have occurred FOB origin (Incoterms 2010) for domestic shipments and FCA Harry Reid International Airport (Incoterms 2010) for international deliveries.
4.3. Title and liability for loss or damage to the Products shall transfer from Supplier to Customer upon delivery of the Products at FOB origin for domestic shipments, or FCA Harry Reid International Airport for international shipments.

5. PAYMENT
5.1 Unless otherwise agreed in writing by an authorized representative of Supplier, Customer shall pay for all Products on receipt of Supplier’s invoice[DL1] [SE2]  prior to or coincident with release of Product for shipment. Payment shall be deemed to have been made when a check is received and cleared by Supplier or payment is received by an electronic transfer in Supplier’s bank account. 5.2 Where Supplier has agreed to accept payment later than the Product shipment date, Supplier reserves the right to assess interest on any late payments from the date due until receipt of payment in full at the lesser of (a) one and one-half percent per month compounded monthly, or (b) the maximum rate permitted by law, and to charge Customer for any collection or litigation expenses, including reasonable attorney’s fees incurred by Supplier in the collection of late payment. In addition to any remedies under law, Supplier may at its sole discretion suspend future deliveries or services until all delinquent payments due are received. Supplier may require an advance payment or milestone payments prior to beginning performance of the Purchase Order. Supplier may require Customer to obtain a letter of credit for international orders. All payments hereunder shall be paid without any deductions, set-off, or counterclaims including for any Taxes.

5.3 If Supplier requires Customer to make a deposit with Purchase Order, the deposit shall be discounted from the total Price payable for the Products at time of Invoicing. Any deposits made by Customer shall be held by Supplier in an escrow account and returned to Customer on receipt by Supplier of a written Purchase Order cancellation notice, subject to the restriction that no deposit shall be returned to Customer for any Purchase Orders cancellations that occur after Supplier has advised Customer the Products are available at Supplier’s facility for pickup.

6. FORCE MAJEURE AND EXCUSABLE DELAY
6.1. Supplier shall not be liable for any damages of any kind for delayed or non-performance if such delayed or non-performance is due directly or indirectly to:
(a) Customer, including omissions or failure to act on the part of Customer or its agents or employees;
(b) An Event of Force Majeure, defined herein as including acts of God, acts of public enemies, fires, floods or unusually severe weather conditions, strikes, lockouts, disputes with workmen or other hostilities, embargoes, wars, riots or civil disturbances, epidemics or quarantine restrictions, delays or shortages of transportation, governmental action including the government’s denial or failure to grant an export license or other needed government authorization;(c) Causes beyond Supplier’s reasonable control, including severe accidents at Supplier’s plant, unforeseen production or engineering delays or inability of Supplier or its vendors to secure adequate materials, manufacturing facilities or labor, or any other acts and causes not within the control of Supplier, which by the exercise of due diligence and reasonable effort, Supplier would not have been able to foresee, avoid or overcome.
6.2. Supplier shall notify Customer of any delayed or non-performance due to an excusable delay or Event of Force Majeure as soon as practicable. If either such event should occur, Supplier’s period of performance shall be extended for a period of time equal to the duration of either such event. If the excusable delay or Event of Force Majeure extends more than six months, Supplier and Customer may mutually agree to terminate the Purchase Order or any portion thereof impacted by the excusable delay or Event of Force Majeure, and Customer shall promptly pay Supplier for any delivered Products or services performed, any works in process, any termination costs, including vendor settlement expenses, and a reasonable profit on the terminated Purchase Order or portion thereof that Supplier and Customer agreed to terminate.

7. WARRANTY[DL3] [SE4] 

A.   Subject to the terms and conditions set forth in Article 13, Limitation of Liability, Supplier warrants that the Products manufactured by Supplier shall be free from defects, including latent defects, in material and workmanship under normal use and service when operated in accordance with Supplier’s operating instruction for twelve months from shipment for Products, and 90 days from shipment for non-warranty repairs. Supplier’s obligation and Customer’s sole remedy under the Warranty shall be limited to, at Supplier’s option, the repair or replacement of the nonconforming warranted Product, or any part thereof, FOB origin. Notwithstanding the foregoing, the Warranty shall not apply to an Event of Force Majeure, wear and tear, or to defects arising from or connected with Customer’s or any third party’s (i) improper receipt, transport, handling, storage, maintenance, testing, installation, operation or of the Product, or (ii) alteration, modification, maintenance, overhaul, repair, neglect or foreign object damage of the Product. Supplier shall have no obligation to Customer for any failure, to the extent that it is aggravated by such continued use. The Warranty does not apply to consumable items such as tubes, fuses, bulbs, and like items. Customer shall provide prompt written notice of the Product’s failure within the Warranty period, and ensure the failed Product is properly packed and returned to Supplier transportation and insurance prepaid.

B.    This 1-year Limited Warranty applies to repair or replacement of products found to be defective in material or workmanship.  This warranty does not apply to damage resulting from commercial, abusive, unreasonable use or supplemental damage.  Defects that are the result of normal wear and tear will not be considered manufacturing defects under this warranty.  MEDWAND IS NOT LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THIS PRODUCT IS LIMITED IN DURATION OF THIS WARRANTY.  Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages or limitations on how long an implied warranty lasts, so the above limitations or exclusions may not apply to you.  This warranty gives you specific legal rights and you may also have other rights which vary from jurisdiction to jurisdiction.  This warranty only applies to the original purchaser of this product from the original date of purchase.

1. At its option, Medwand will repair or replace this product if it is found to be defective in material or workmanship.

2. This warranty does not cover damage resulting from any unauthorized attempts to repair or from any use not in accordance with the instruction manual.  To make a warranty claim please enter all relevant claim information at https://medwand.com/warranty

NOTE:  IF YOU EXPERIENCE A PROBLEM WITH MEDWAND PRODUCT, DO NOT RETURN YOUR PRODUCT TO THE ORIGINAL PLACE OF PURCHASE.  DO NOT ATTEMPT TO OPEN THE DEVICE HOUSING YOURSELF, DOING SO MAY VOID WARRANTY AND CAUSE DAMAGE TO THE PRODUCT OR PERSONAL INJURY.

8. PROPRIETARY INFORMATION
For the term of Customer’s Purchase Order, Supplier and Customer, to the extent of their right to do so, may exchange proprietary and/or confidential information not generally known to the public (“Proprietary Information”), only to the extent and as reasonably required to perform its obligation hereunder. Any document marked “Confidential” or “Proprietary” and all copies made of any such document shall be returned by the receiving party (“Recipient”) of Proprietary Information to the disclosing party (“Owner”) upon completion of the purpose for which they were provided, or destroyed by Recipient at Owner’s direction. Neither Supplier nor Customer shall be liable for any disclosure if the data: (a) is generally available to the public (or becomes so) without breach of by Recipient; (b) was available to Recipient on a non-confidential basis from a source that had the right to disclose such information; (c) was rightfully in the possession of Recipient prior to receipt from Owner; or (d) was independently developed without use of Owner’s Confidential Information. No license to a party, under any trademark, patent, copyright, mask protection right or any other intellectual property right, is either granted or implied by the conveying of Proprietary Information to such party. No use of any Supplier trademark, service mark, trade name, design, logo or other trade dress may be made without the prior written consent of Supplier. Any Supplier mark or logo existing on the Product must not be altered or modified in any manner, combined with other elements, or rearranged without the prior written consent of Supplier. None of the Proprietary Information which may be disclosed or exchanged by Owner shall constitute any representation, warranty, assurance, guarantee or inducement to Recipient of any kind and, in particular, regarding the non-infringement of trademarks, patents, copyrights or any intellectual property rights, or other rights of third persons other than the rights expressly granted herein. Customer agrees that it will not attempt, nor will it direct or employ others to attempt, to reverse engineer the Product, subassemblies and/or software that is developed, manufactured or sold by Supplier. The ownership in all Proprietary Information disclosed Owner to the other pursuant to the Purchase Order shall remain with Owner unless otherwise stated in the Purchase Order. The confidentiality obligations herein shall survive for a

10. EXPORT COMPLIANCE
The Products, including any associated technology, are controlled under the Export Laws and Regulations of the United States Government, including but not limited to Export Administration Regulations and the International Traffic in Arms Regulations. The Products and any associated data cannot be exported out of the United States, re-exported or transferred to another country without the prior approval of the US Government. Customer shall first obtain Supplier’s written consent and any authorization required by the US Government, including the filling of additional export licenses or authorizations which must occur and/or be approved by the US Government prior to any export, re-export, or transfer of US original articles, data, or associated technology. If the Purchase Order requires the delivery of Product and/or performance of services outside of the United States, the Purchase Order shall be subject to the US Government approving any licenses or any other approvals or US Customs clearances required for Supplier to meet the obligations of the Agreement. Customer shall provide an end-user letter and/or non-transfer end use certificate, or other supporting documentation if requested by Supplier to accompany Customer’s export license request or any other approval as required by the US Government. In the event the US Government fails to grant any license or approval in a timely manner, the delay in the performance of the Purchase Order shall be considered an Event of Force Majeure.

11. GOVERNING LAW
These Terms and Conditions and any action related hereto shall be governed, controlled, interpreted and defined by and under the laws of the State of Nevada, USA, without regard to the conflict of laws provisions thereof. The Parties specifically disclaim application of the U.N. Convention on Contracts for the International Sale of Goods (1980) or any subsequent revision(s) thereto.

12. DISPUTES[DL5] [SE6] 
In the event of any dispute arising out of or in connection with these Terms and Conditions, such dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules of Arbitration. The place of arbitration shall be Las Vegas, NV, USA. The language of the arbitration shall be English. The arbitral award shall be final and binding upon the Parties.

13. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, AND REGARDLESS OF THE NUMBER OF CLAIMS OR THE FORM OR CAUSE OF ACTION, WHETHER IN CONTRACT, EQUITY, STATUTE, TORT, NEGLIGENCE (ACTIVE OR PASSIVE) OR OTHERWISE, SUPPLIER SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQEUENTIAL DAMAGES OF ANY KIND, AND SHALL NOT BE LIABLE TO CUSTOMER FOR LOSSES OF USE, DATA, PROFIT, REVENUE, INCOME, BUSINESS, ANTICIPATED SAVINGS, REPUTATION, AND MORE GENERALLY, ANY LOSSES OF AN ECONOMIC OR FINANCIAL NATURE, REGARDLESS OF WHETHER SUCH LOSSES MAY BE DEEMED AS CONSEQUENTIAL OR ARISING DIRECTLY AND NATURALLY FROM THE INCIDENT GIVING RISE TO THE CLAIM, AND REGARDLESS OF WHETHER SUCH LOSSES ARE FORESEEABLE OR WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES. EXCLUDING GROSS NEGLIGENCE OR WILLFULL MISCONDUCT, SUPPLIER’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH A PURCHASE ORDER SHALL IN NO EVENT EXCEED ACTUAL, DIRECT, AND PROVEN DAMAGES OF THE PRICE OF THE PRODUCT DIRECTLY PURCHASER BY CUSTOMER UNDER THE PURCHASE ORDER GIVING RISE TO THE CLAIM. THIS LIMITATION OF LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY. TO THE EXTENT THESE TERMS AND CONDITIONS CONTAIN ANY SPECIFIC REMEDIES PROVIDED BY SUPPLIER TO CUSTOMER, REGARDLESS OF FORM, SUCH REMEDIES SHALL BE PROVIDED BY SUPPLIER ON A SOLE AND EXCLUSIVE BASIS AND IN LIEU OF ANY OTHER REMEDIES, DAMAGES, OR LOSSES.

14. INSURANCE
Supplier and Customer shall each carry insurance coverage in types and amounts adequate to protect against any losses, damages, liabilities or expenses that may reasonable be expected to be incurred under a Purchase Order, and both shall keep such insurance coverage in effect until the conclusion of the Purchase Order.

15. MODIFICATION
No modification of these Terms and Conditions is authorized and no modification shall be binding on Supplier, unless such modifications are documented in writing and signed by an authorized officer or director of Supplier. Supplier's failure to object to provisions contained in any communication to Supplier from Customer, or inadvertent omission or reference to this Agreement in an Ordering Document shall not be deemed a waiver of the provisions herein.

16. ASSIGNMENT
Neither Party may assign or delegate a Purchase Order or any of its rights, duties or obligations regarding a Purchase Order to any other party without the prior written consent of the other party. Any attempt by either party to assign or delegate any of its rights, duties or obligations regarding a Purchase Order without such consent shall be void and of no effect. Notwithstanding the foregoing, Supplier shall be permitted to subcontract its rights, duties or obligations regarding a Purchase Order to another division, affiliate or wholly-owned subsidiary of Supplier and shall have the right to assign a Purchase Order to any successor by way of merger or consolidation or the acquisition of substantially all of the entire assets of Supplier relating to the subject matter of the Purchase Order; provided, however, that such successor shall assume all of the obligations of Supplier under the Purchase Order. Nothing in this provision is intended to preclude Supplier from awarding routine subcontracts or purchase orders to vendors or other suppliers.

17. AUDIT
Notwithstanding anything set forth herein to the contrary, Customer shall not be allowed or have the right to audit or examine Supplier’s books and records.

18. NO THIRD PARTY BENEFICIARIES
Except as expressly provided herein, these Terms and Conditions are for the sole and exclusive 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.

19. WAIVER
If either party, at its option, agrees to waive any of these Terms and Conditions, then such waiver shall not for any purpose be construed as a waiver of any succeeding breach of the same, or of any other of these Terms and Conditions; nor shall such a waiver be deemed as a course of conduct.

20. SEVERABILITY
If any of these Terms and Conditions are at any time held to be invalid or unenforceable, then such Term or Condition shall be construed as severable and shall not in any way render invalid or unenforceable the remainder of these Terms and Conditions, which shall remain in full force and effect.

21. PUBLIC DISCLOSURE
Except as required to obtain necessary licenses or governmental approvals, neither party shall issue any news releases, articles, brochures, advertisements, or other information releases relating to the subject matter of a Purchase Order, except as otherwise required by law, without the prior written approval of the other party.