Vitalograph Inc. - Conditions of Business

1. GENERAL

(a) Quotations by Vitalograph Inc. (“the Company”) are not offers and may be withdrawn without notice.

(b) Any contract made between the Company and the Customer shall incorporate and be subject to the following conditions. All other terms and conditions whatsoever are excluded from the contract or any variation thereof unless expressly accepted by the Company in writing.

2. PRICES

(a) Unless otherwise agreed in writing by the Company all prices are quoted net ex works.

(b) The cost of any special packaging required by the Customer shall be charged extra.

(c) If delivery and performance are postponed or delayed at the request or by reason of the Customer as the case may be, the Customer shall pay all costs and expenses thereby incurred by the Company together with a reasonable charge for storage.

(d) If delivery and performance are postponed or delayed at the request or by reason of the default of the Customer as the case may be, the Customer shall pay all costs and expenses thereby incurred by the Company together with a reasonable charge for storage.

(e) Unless otherwise agreed in writing the Customer shall be charged extra for any tests or inspections or certifications he requires beyond those specified in the contract

(f) All prices quoted for goods or services are subject to fluctuations in the cost of labor materials and overheads, currency exchange rates and taxation whether new or existing, and any increase in such costs after the date of quotation shall be added to the contract price. In the absence of agreement a Certificate of the Company's Auditors certifying the amount of such increase shall be conclusive and binding on the Customer and the Company on all matters of fact and opinion

3. RISK

(a) (i) Notwithstanding risk in the goods passing to the Customer, title in the goods shall not pass to the Customer until payment is received by the Company for the goods, the subject matter of this contract, and there are no other amounts then being outstanding from the Customer to the Company in respect of any other goods supplied by the Company

(ii) The Customer is licensed by the Company to use and to agree to sell the goods delivered to the Customer but, subject thereto, until title in the goods passes, the goods shall be stored in such a way as to be clearly identifiable as belonging to the Company and the Company shall be entitled to enter upon the premises where the goods are stored to reclaim possession

(b) Risk shall pass to the Customer on delivery.

4. DELIVERY

(a) Unless otherwise agreed in writing by the Company delivery shall be made ex works. Dates given by the Company for delivery and performance are statements of expectation and shall not be binding. Failure by the Company to meet any such dates shall not entitle the Customer to any damages for loss of profits or of production or any other consequential loss or damage (including but not restricted to loss of contracts, goodwill or market share) which he may sustain or to treat the contract as repudiated or to rescind it or any related contract.

(b) Without prejudice to the provisions of Clause 4(a) above where the Company has agreed to deliver goods at any place other than its works the Company undertakes to replace or at its option repair free of charge any such goods lost or damaged in transit to the contracted place of delivery if the Customer shall have given written notice of such loss or damage to the Company within 14 days of delivery of the goods in which event the time for delivery of the lost or damaged goods shall be extended for such period as the Company reasonably requires for such replacement or repair. Failure by the Customer to comply with the provisions hereof or, if requested by the Company, to return the goods to the Company's works within one month of delivery shall render the Customer liable for such loss or damage notwithstanding the provisions of Clause 3(b) hereof

5. TERMS OF PAYMENT

(a) Unless otherwise agreed by the Company in writing, all accounts shall be paid within 30 days of the date of the Company invoice

(b) Time for payment shall be of the essence or the contract and the Company shall be entitled to charge interest at the rate of 2 per cent per month or the highest rate permitted by law, whichever is less on all overdue accounts and in addition may suspend work and postpone the fulfillment of its obligations until such overdue payment is made

(c) No disputes as to quality or performance of the goods or services shall entitle the Customer to delay payment unless the Company shall agree liability thereon in an agreed sum or shall have been found liable by a Court of competent jurisdiction

(d) (i) ) If the sales order value of this contract equals or exceeds US $30,000 or equivalent (excluding sales tax) the Customer shall with its order documentation pay one-third of such sales order value (including any sales tax due thereon) to the Company ("the advance payment")

(ii) If the advance payment is not paid on time it shall bear interest under Clause 5(a) and (b) above as if the Company had rendered an invoice to the Customer 30 days before the date of the Company's receipt of the Customer's order documentation

(iii) Without prejudice to Clause 10 below in the event that the Customer wrongfully terminates or purports to cancel the contract without the consent of the Company before the Company has commenced work on the contract, the Company shall be entitled to retain the advance payment as liquidated damages and the parties hereto confirm that such sum and interest as aforesaid is a reasonable pre-estimate of the Company's likely losses in that event

(iv) Where the Company has commenced work the advance payment shall be deemed to be the minimum loss sustained by the Company

(v) The provisions of this Clause 5(d) may be waived wholly or in part at the Company's absolute discretion without affecting the Company's rights in respect of any other past or future contract with the Customer

(vi) No total or partial waiver of this Clause 5(d) shall be of any effect unless in writing and signed by a Director of the Company

(vii) Where the contract is part of a series of contracts this Clause 5(d) shall operate if the aggregate sales order value exceeds the sum or sums referred to at (i) above

6. WARRANTY

The Company undertakes to repair or to replace at its option free of charge any goods supplied by it which are returned to the Company's works by the Customer carriage paid within 12 months from the date of their original dispatch and which are shown to the Company's satisfaction to be defective by reason of faulty workmanship material or design.

7. LIABILITY

a) The Customer shall operate and use the goods strictly in accordance with the directions for use issued by the Company, and the best professional practice.

(b) To the full extent allowed by law, the Company shall not be liable in contract tort or otherwise for any direct or indirect costs damages or expenses relating to damage to property or injury or loss to any person, firm or company arising out of or occasioned by an error in design or manufacturer or any defect in or failure of the goods or services supplied by the Company or occasioned by reason of any act or omission in its performance of any contract whether of manufacturer, supply, design, repair or otherwise whatsoever and the Customer shall indemnify the Company in respect of any claims relating thereto.

9. COPYRIGHT ETC.

(a) Copyright in all original work executed by the Company shall remain the sole property of the Company unless otherwise agreed in writing.

(b) The Customer shall indemnify the Company in respect of any claims costs and expenses arising out of any infringement of patent copyright design or other exclusive right by the company as a result of goods or services supplied to the Customer's specifications.

10. CANCELLATION

(a) The Customer shall not be entitled to cancel any contract

(b) Without prejudice to the generality of Clause 5 and Clause 10(a) above the Company may in its absolute discretion agree to accept cancellation of a particular contract on condition that all costs and expenses and loss of profits and other loss or damage sustained by the Company shall be reimbursed by the Customer to the Company forthwith insofar as such exceed any advance payment actually made.

(c) Such acceptance of cancellation shall be of no effect unless in writing and signed by a Director of the Company

(d) In the absence of agreement a certificate of the Company's Auditors certified the amount of all such costs, expenses, loss of profits and other loss or damage as are referred to in Clause 10(b) above shall be conclusive and binding upon the Customer and the Company upon all matters of fact and opinion

11. FORCE MAJEURE

The Company shall be under no liability for any delay loss or damage caused wholly or in part by an act of God, governmental restriction condition or control, or by reason of any act done or not done pursuant to a trade dispute whether such dispute involves the Company's employees or not or by reason of any other act, matter or thing beyond the reasonable control of the Company.

12. LAW AND JURISDICTION

(i) This contract shall be governed by and construed in all respects in accordance with the State of Kansas.

(ii) All disputes under or otherwise arising from this contract shall be subject only to the jurisdiction of the laws of the State of Kansas.

(iii) Nothing in sub-clause (ii) above shall prevent the Company from pursuing any claims rights or relief under or arising out of this Contract in any Court or Tribunal where the Company would have been entitled so to do but for such sub-clause.

13. SEVERANCE

If any provision or condition herein shall be deemed void for any reason whatsoever, but would be valid if part of the wording herein were deleted such condition or provision shall apply with such modification as shall make it valid and effective

14. NOTICE

Any notice to be given hereunder shall be in writing and shall be deemed to have been duly given if sent or delivered to the party concerned at its address specified overleaf or such other address as the party may from time to time notify in writing and shall be deemed to have been served, if sent by post, 48 hours after posting

15. WAIVER

The rights and remedies of the Company shall not be diminished, waived or extinguished by the granting of any indulgence, forbearance or extension of time by the Company nor by any failure or delay by the Company in asserting or exercising any such rights or remedies

16. HEADINGS

The headings of these Conditions are for convenience only and shall have no effect on their interpretation

17. INDEMNITY

The Customer hereby agrees fully and completely to indemnify the Company in respect of all claims (and any related damages, losses, costs or expenses or like matters) made by any person or body whatsoever (other than the Customer itself) for injury to person or property or any other loss or damage caused by or in connection with or arising out of the use of the goods, the subject matter of this contract

18. IMPORTANT NOTICE TO CUSTOMER

Certain of the provisions of these Conditions of Business may in certain circumstances reduce, control or exclude obligations and liabilities between the Company and the Customer. Without giving any warranty, representation or assurance the Company proposes to arrange its affairs (including but not restricted to not seeking greater insurance cover or greater charges from the Customer) on the basis that these Conditions of Business are fully effective between the Company and the Customer. If the Customer is not content to be bound fully by these Conditions of Business it should, before entering into the contract in question, discuss with the Company whether any different terms can be agreed and if they are more favorable to the Customer the amount of any increase in the price to be charged to the Customer. Any variations from these Conditions of Business will only take effect if in writing and signed by a Director of the Company. The Customer should, in any event, obtain and maintain adequate insurance in respect of any loss that might arise to it from any negligence, delay or failure to perform on the part of the Company its servants or agents.

Legal Information

Trademarks

Vitalograph®, Spirotrac® and Safetway® are registered trademarks of Vitalograph Ltd. and associated companies. ALPHA™, asma-1™, asmaPLAN™, BreathCO™, BVF™, COMPACT™, copd-6™, Gold Standard™, In2itive™, Pneumotrac™, PowerSAFE™, ResusBag™ and VitaloJAK™ are trademarks of Vitalograph Ltd. and associated companies.

Microsoft® and Windows® are registered trademarks of Microsoft Corporation. EMIS® is a registered trademark of Egton Medical Information Systems Ltd. Bluetooth® is a registered trademark of the Bluetooth SIG.

Copyright

Vitalograph is the owner of all copyright material on this site, unless otherwise advised.

Legal Status

Vitalograph Inc. is a US company registered in the state of Kansas. Vitalograph Inc. is an affiliate company of Vitalograph Limited (UK).