Terms of service
Terms and Conditions of Sale –Ekso Bionics, Inc.
1. PRICES: Buyer shall pay Seller the purchase price for the Goods/Services as set forth on the applicable Purchase Order.
2. DELIVERY, RISK OF LOSS AND ACCEPTANCE: All shipping dates as set forth on the applicable Purchase Order are approximate. All completion dates for Services as set forth on the applicable Purchase Order are approximate. All prices for Goods are F.O.B. Seller’s San Rafael, California facility, and title to all Goods and all risk of loss shall pass to Buyer at the point of departure from Seller’s facility. Buyer assumes all risk of loss and responsibility for obtaining and paying for insurance and negotiating with the carrier and/or insurer in the event of mistaken or misdirected delivery, loss or damage, regardless of the fact that insurance may have been secured by Seller at Buyer’s request. All freight charges will be paid by Buyer. In the absence of specific instructions, Seller will ship by what it deems to be the most appropriate method.
Promptly following delivery of the Goods, Buyer shall visually inspect the Goods to determine that it conforms to the packing list and shall inform Seller in writing of any issues it identifies.
3. TERMS OF PAYMENT: Payment shall be made in United States Dollars. Buyer shall pay all freight or shipping charges. Payment shall be net 30 days. If any payment owed to Seller hereunder is not paid when due, it shall accrue interest, from the date on which it is due until it is received, at a rate which shall not exceed the lesser of 1.5% per month and the maximum rate permitted by law. Seller shall have the right, among other remedies to terminate the applicable Purchase Order or to suspend further deliveries under this and/or other agreements with Buyer in the event Buyer fails to may any payment hereunder when due. Buyer shall be liable for all expenses attendant to collection of past due amounts, including reasonable attorneys’ fees.
4. EXCUSE OF PERFORMANCE: Seller shall not be liable for delays in performance or non-performance due to acts of God, war, riot, fire,
terrorism, labor trouble, unavailability of materials or components, earthquake, explosion, accident, compliance with governmental requests, laws, regulations, orders or actions, or other unforeseen circumstances or causes beyond Seller’s reasonable control.
5. LIMITED WARRANTY: Subject to the limitations contained in Section 6 herein, Seller warrants that the Goods manufactured provided by Seller will be free from defects in materials or workmanship under normal use and care until the expiration for the applicable warranty period. Seller warrants that the Services will be performed with that degree of skill and judgment normally exercised by recognized manufacturing firms performing services of a similar nature. Goods and services are warranted for twelve (12) months from the date of shipment by Seller. If Buyer discovers any warranty defects and notifies Seller by appropriate “Notice” in writing not later than fifteen (15) business days after discovery thereof during the applicable warranty period, Seller shall at its option, repair or replace F.O.B. point of manufacture that portion of the Goods found by Seller to be defective, or correct any errors that are found by Seller in the Services, or refund the purchase price of the defective portion of the Goods or Services. The foregoing “Notice” shall state with reasonable specificity the date of occurrence or observation of the deficiency or defect and the reasons supporting Buyer’s belief concerning the alleged deficiency or defect. All replacements or repairs necessitated by inadequate maintenance, normal wear and usage, unsuitable environmental conditions, accident, misuse, improper installation, modification, repair, storage or handling, or any other cause not the fault of Seller are not covered by this limited warranty, and shall be at Buyer’s expenses. . All costs of dismantling, reinstallation and freight under this warranty clause shall be borne by Buyer unless accepted in writing by Seller. Goods repaired and parts replaced by Seller during the warranty period shall be in warranty for the remainder of the warranty period or ninety (90) days, whichever is longer. THE WARRANTIES AND REMEDIES SET FORTH ABOVE ARE EXCLUSIVE. THERE ARE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR ANY OTHER MATTER WITH RESPECT TO ANY OF THE GOODS OR SERVICES.
6. LIMITATION OF REMEDY AND LIABLITY: SELLER SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE. THE REMEDIES OF BUYER SET FORTH IN THESE TERMS AND CONDITIONS ARE EXCLUSIVE. IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABLITY, OTHER TORT OR OTHERWISE), SHALL SELLER’S LIABILITY TO BUYER AN/OR ITS CUSTOMERS EXCEED 50% OF THE PRICE TO BUYER OF THE SPECIFIC GOODS MANUFACTURED OR SERVICES PROVIDED BY SELLER GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. BUYER AGREES THAT IN NO EVENT SHALL SELLER’S LIABLITY TO BUYER AND/OR ITS CUSTOMERS EXTEND TO INCLUDE INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. THE TERM “CONSEQUENTIAL DAMAGES” SHALL INCLUDE, BUT NOT BE LIMITED TO, LOSS OF ANTICIPATED PROFITS, REVENUE OR USE AND COSTS INCURRED INCLUDING WITHOUT LIMITATION FOR CAPITAL, FUEL AND POWER, AND CLAIMS OF BUYER’S CUSTOMERS.
7. PATENTS: Subject to the limitations contained in Section 6, Seller shall defend any suits brought against Buyer based on a claim that use of the Goods manufactured by Seller constitutes an infringement of a valid patent of the United States, and shall pay any damages awarded therein against Buyer, provided that Buyer: promptly notifies Seller in writing of the filing of such suit or the threat thereof; permits Seller to control completely the defense or compromise of such claim of infringement; and provides all reasonable assistance and cooperation requested by Seller for the defense of such suit. In the event that only the Goods manufactured by Seller are held to be infringing in such suit and their use is enjoined. Seller shall, at its sole option and expense, provide a commercially reasonable alternative, including, but not limited to, procuring for Buyer the right to continue using the Goods, replacing them with a non-infringing product or modifying them so they become non-infringing. Buyer agrees that Seller shall not be liable for infringement if infringement is based upon the use of Goods in connection with goods not manufactured by Seller or in a manner for which the Goods were not designed by the Seller or if the Goods were modified by or for the Buyer in a manner to cause them to become infringing.
8. SELLER’S INTELLECTUAL PROPERTY RIGHTS: Seller retains all proprietary rights in and to all intellectual property rights incorporated in the Goods, including but not limited to any know-how, processes, methodologies, specifications, designs, inventions, functionality, graphics, techniques, methods, applications, the user manuals, online documentation, products or other technology and materials of any kind, or any enhancement thereto, whether patentable or unpatentable, copyrightable or uncopyrightable, including, but not limited to, any improvement, method, process, discovery, concept, algorithm, development, secret process, machine or contribution included within the Goods made available by Seller to Buyer.
9. INSTALLATION: Other than for the services set forth on the reverse side Buyer shall be responsible for receiving, storing, installing, starting up and maintaining all Goods.
10. TAXES: Any tax or governmental charge payable by the Seller because of the manufacture, sale or delivery of the Goods, or provision of Services, may at Seller’s option be added to the price herein specified. The foregoing shall not apply to taxes based upon Seller’s net income.
11. BUYER SUPPLIED DATA; BUYER IDENTIFICATION:
To the extent that Seller has relied upon any specifications, information, representation of operating conditions or other data or information supplied by Buyer to Seller in the selection or design of the Goods and/or provision of the Services and the preparation of Seller’s quotation, and in the event that that actual operating conditions or other conditions materially differ from those represented by Buyer and relied upon by Seller, any warranties or other provisions contained herein which are adversely affected by such conditions shall be void, unless otherwise mutually agreed upon in writing. Without disclosing any confidential information of Buyer’s, Seller may identify Buyer as a customer in its marketing materials.
12. EXPORT/IMPORT: Buyer agrees that all applicable import and export control laws, regulations, orders and requirements, including without limitation those of the United States and the European Union, and the jurisdictions in which the Seller and Buyer are established or from which items may be supplied, will apply to its receipt and use of Goods and Services. In no event shall Buyer use, transfer, release, import, export or re-export Goods in violation of such applicable laws, regulations, orders or requirements.
13. CANCELLATION:
13.1 Cancellation by Seller. The applicable Purchase Order may be cancelled by Seller (a) in the event of a material breach by Buyer of any provision of the applicable Purchase Order which Buyer fails to correct within thirty (30) days of written notice; or (b) upon the bankruptcy, reorganization or assignment for the benefit of creditors of Buyer;.
13.2 Cancellation by Buyer. Buyer may cancel the applicable Purchase Order (a) in the event of a material breach by Seller of any provision of the applicable Purchase Order which breach Seller fails to correct within thirty (30) days of written notice; or (b) upon the bankruptcy, reorganization or assignment for the benefit of creditors of Seller.
13.3 Effect of Cancellation. In the event of a cancellation pursuant to Sections 13.1 or 13.2, Seller’s obligations under t h e applicable Purchase Order (including its obligations for Services shall cease as of the effective date of such cancellation.
13.4 Survival. Sections 5, 6, 8 and 10 shall survive any cancellation of the applicable Purchase Order
14. GENERAL PROVISIONS: (a) Buyer shall not assign its rights or obligations under the applicable Purchase Order without Seller’s prior written consent. (b) Absent express written agreement by Buyer and Seller, there are no understandings, agreements or representations, express or implied, not specified in the applicable Purchase Order. (c) neither party shall, for any purpose, be deemed to be an agent of the other party and the relationship between the parties shall only be that of independent contractors. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever. (d) any modification of these terms and conditions must be set forth in a written instrument signed by a duly authorized representative of Seller. (e) The Purchase Order is formed and shall be construed, performed and enforced under the laws of the State of California. (f) Any disputes arising out of or in connection with the applicable Purchase Order that cannot be resolved by good faith discussions between the parties shall be finally settled by arbitration in San Francisco, California by a single arbitrator appointed in accordance with the then current rules regarding commercial disputes of the American Arbitration Association. The parties will accept the arbitrator’s award as final and binding. (g) if any provision of the applicable Purchase Order is invalid under any statute or rule of law, such provision, to the extent only, shall be deemed to be omitted without affecting the validity of the remainder of the applicable Purchase Order. (h)The applicable Purchase Order may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a ".pdf" format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or ".pdf" signature page were an original thereof.