TERMS AND CONDITIONS OF SALE

1) ENTIRE AGREEMENT Any of the terms and provisions of Buyer’s order which are inconsistent with the terms and provisions hereof shall not be binding on Sonomed Escalon (Escalon Medical Corp., Sonomed, Inc., and Escalon Digital Solutions, Inc. family of companies collectively dba as “Sonomed Escalon”) and shall not be considered applicable to the sale of the products mentioned herein. No modification hereof shall be valid unless in writing and duly signed by a person authorized by Sonomed Escalon.

2) PRICES Prices are subject to change without notice. Unless otherwise specified on the order, prices are for the specific quantity stated and do not include taxes, nor charges for transportation, special packaging or marking, or testing, if applicable.

3) QUANTITY DISCOUNTS When quantity price discounts are quoted, they are computed separately for each type of product or service and are based on the quantity of each type and each size ordered at any one time for immediate delivery. If any order is reduced or cancelled (subject to Sonomed Escalon approval), it is agreed that prices will be adjusted upward to the higher prices, if applicable, for the quantity not cancelled.

4) QUALITY LEVELS Prices are based on quality levels commensurate with normal processing. If a different quality level is required, Buyer must specify requirements and pay any additional costs that may be applicable.

5) TAXES Unless prohibited by statute, Buyer agrees to pay Sonomed Escalon the amount of any Federal, State, City or other tax, import or export duty, tariff or customs charge levied by any jurisdiction either inside or outside the United States that Sonomed Escalon may be required to pay on account of the ownership at the place of installation, or the provision of service, or the manufacture, transportation, sale or use of the product or service which is the subject of this contract.

6) REPRESENTATION Buyer represents to Sonomed Escalon that Buyer:

A) Is licensed under the laws of the Buyer’s jurisdiction as a doctor of medicine or osteopathy or as an optometrist or as a medical school, college of optometry or hospital.

B Has the education, skills, knowledge and experience to use the product for its intended use.

C) Will use the product solely in accordance with its operation manual.

D) Is purchasing the product solely for use in Buyer’s medical, osteopathic or optometric practice.

E) Will not transfer the product to any other person or entity not so licensed.

F) Buyer agrees to break no seals on the product packaging or attempt to make any repairs to product, unless authorized to do so by Sonomed Escalon.

G) Buyer agrees to indemnify and defend Sonomed Escalon against all claims, cost, expense and liability incurred as a result of Buyer’s breach of any of the foregoing representations. 

7) TERMS Unless otherwise stated, payment terms shall be prepayment prior to shipment of product or provision of service, with any credit subject to approval by Sonomed Escalon of amount and terms of credit. Sonomed Escalon reserves the right to require payment in advance or C.O.D., or otherwise modify credit terms either before or after acceptance of any order if for any reason Buyer’s credit is or becomes objectionable to Sonomed Escalon. Pending correction of any objectionable credit situation, Sonomed Escalon may withhold shipments without incurring any liability to Buyer. When partial shipments are made, payments therefore shall become due in accordance with the designated terms of the invoice. If, at the request of Buyer, shipment is postponed, payment will become due immediately after notice to Buyer that products are ready for shipment. A service charge of 1.5% per month on the unpaid balance shall be imposed upon all accounts not paid when due.

8) SHIPMENT For sales agreements requiring shipment of physical product, terms within this section apply. All shipments will be made F.O.B. Sonomed Escalon facility unless otherwise specified. In the absence of specific instructions, Sonomed Escalon will select the carrier. Title to the materials shall pass to the Buyer upon delivery thereof by Sonomed Escalon to the carrier or delivery services; thereupon, the Buyer shall be responsible therefore Products held for Buyer, or stored for Buyer, shall be at the risk and expense of Buyer. Any claims against Sonomed Escalon for shortages must be made within five (5) days after arrival of shipment. Unless specifically referenced in the sales agreement, all installation and shipping expenses, as well as any miscellaneous items that were necessary to complete installation will be included in the final invoice and will be timely paid by Buyer in accordance with payment terms noted on the invoice.

9) DELIVERY Sonomed Escalon acknowledges shipping dates are approximate. If Buyer’s order does not cite desired delivery date(s) and/or does not expressly prohibit delivery in advance of schedule date(s), Buyer agrees that immediate delivery is acceptable. If conditions arise which prevent compliance with delivery schedules, Sonomed Escalon shall not be liable for any damage, and general consequential or otherwise, for delay in delivery or for failure to give notice of delay, and such delay shall not constitute grounds for cancellation. Without limiting the generality of the foregoing; Sonomed Escalon shall under no circumstances be responsible for failure to fill any orders when due to failure to obtain export licenses; fires; floods; earthquakes; riots, strikes; war; freight embargoes or transportation delays; shortage of labor; inability to secure fuel, material, supplies or power or other energy requirements or on account of shortages thereof, acts of God or of the public enemy; any existing or future laws or acts of the Federal or any other State Government (including specifically, but not exclusively, any orders, rules or regulations issued by any officials of such government) affecting the conduct of Sonomed Escalon business which Sonomed Escalon in its judgment and discretion deems it advisable to comply with either as a legal or patriotic duty, or to any other cause beyond Sonomed Escalon reasonable control. 

10) ENERGY The price, specifications and delivery schedules set forth in the order assume that materials and energy will continue to be available at not less than present levels, and that Sonomed Escalon and its sub-contractors and suppliers will continue to have unrestricted use of their facilities. Any significant reduction in the availability of any of the foregoing as a direct or indirect result of the situation commonly known as an ‘Energy Crisis’ whether resulting from Government action or otherwise, shall render this order subject to equitable adjustment as to delivery, to reflect the impact thereof. To the extent that any such reduction has material effect on Sonomed Escalon’s costs, the price will be subject to equitable adjustment.

11) ACCEPTANCE In instances where installation of product is contractually required of Sonomed Escalon, such product will be deemed to have been accepted by Buyer upon installation of product. For product which does not require installation, such product will be deemed to have been accepted by Buyer upon shipment of product. For service provided by Sonomed Escalon, such service will be deemed to have been accepted by Buyer upon provision of service.

12) MODIFICATIONS Unless otherwise provided, Sonomed Escalon reserves the right to modify product specifications of products or services ordered by the Buyer herein providing that the modification will not materially affect form, fit or function.

13) TERMINATION In the event of complete or partial termination or cancellation of this order for the convenience of the Buyer, or if the Buyer fails or refuses to accept delivery or is otherwise in default under or repudiates the purchase contained herein, or fails to pay when due any invoice, then in addition to any and all remedies allowed by law, Sonomed Escalon without notice and at its sole discretion:

A)  May bill and declare due and payable all undelivered product and service under this or any other agreement between Sonomed Escalon and the Buyer and/or;

B)  May defer shipment under this or any other agreement between the Buyer and Sonomed Escalon until such breach or repudiation is removed and/or;

C)  May cancel in whole or part an undelivered portion of this agreement and/or any other agreement between Buyer and Sonomed Escalon. No order for product(s) may be terminated by Buyer except by mutual agreement in writing. In the event Buyer attempts to terminate or cancel this order, in whole or in part, where it is not for the convenience of the Government, it shall constitute a breach of contract unless consent to such termination or cancellation is obtained by Buyer from Sonomed Escalon in writing. In any event, the price of all items delivered and all items which have been finished, but not yet delivered, will be adjusted upward to the applicable quantity break, if any, for the lower quantities.

14) GOVERNING LAWS The terms of this agreement and all rights and obligations hereunder, shall be governed in accordance with the laws of the Commonwealth of Pennsylvania. Buyer hereby consents and submits to the jurisdiction of the appropriate courts in the Commonwealth of Pennsylvania for adjudication of any question, law of fact arising hereunder.

15) LIMITATION OF LIABILITY Sonomed Escalon will not be liable for any loss, damage, cost of repairs, incidental or consequential damages of any kind, whether or not based upon express warranty or implied warranty (except for the obligations assumed by Sonomed Escalon under the Product Warranty Clause), contract, negligence, or strict liability arising in connection with the design, manufacture, sale, use or repair of the product or service. In no event will Sonomed Escalon be liable to the Buyer for any amount in excess of the purchase price of the product or service which proves to be defective.

16) WARRANTY The only warranty provided, express or written, is provided in writing within the user manual of each product. Sonomed Escalon will provide written copy of warranty prior to entering into sales agreement, upon request. The exclusive remedy related to product received by Buyer confirmed by Sonomed Escalon to be defective is repair and/or replacement, at discretion of Sonomed Escalon.

17) FORCE MAJEURE Sonomed Escalon shall not be liable for any failure, delay, or interruption in performance due to strikes, lockouts, labor disturbances, acts of God, explosions, fires, and other accidents.

18) ARBITRATION Any claims and disputes arising under or relating the Sales Agreement between Sonomed Escalon and Buyer are to be settled by binding arbitration in the governing jurisdiction as specified within section 14 of these terms and conditions. An award of arbitration may be confirmed in a court of competent jurisdiction.

19) SUPPLEMENTAL CLAUSES FOR EXPORT ORDERS In addition to all other terms and conditions stated within this document, the following terms and conditions apply to orders which are exported to locations outside of the United States:

A)  Currency: The prices quoted herein are payable in U.S. Dollars.

B)  Proof of Export: The products are to be purchased only for export and the Buyer agrees to furnish Sonomed Escalon with proof of exportation of all or any part of such products within five months from the date of the Sonomed Escalon invoices therefore or if exportation of any part shall not have occurred within that period, Buyer agrees to pay Sonomed Escalon upon demand, the amount of any manufacturer’s excise tax or other tax which now or hereafter may be imposed on the sale of such products for consumption within the United States.

C)  License and Permit Requirements:

1)  Sonomed Escalon will secure all export licenses and permits required by the United States Government and Buyer will furnish reasonable cooperation in acquiring such licenses and permits. If such licenses are not paid for by the Buyer, such payments will be added to the contract price.

2)  Buyer will secure all licenses and permits required by the foreign government and Sonomed Escalon will furnish reasonable cooperation in acquiring such licenses and permits.

3)  Failure to obtain a required license or permit in sufficient time to permit delivery within the time set forth in the contract and without fault or negligence of the contracting parties shall occasion an extension upon the contract herein until such licenses and permits are obtained, within a reasonable amount of time.

D)  Authorized Representation: Buyer will only resell product into countries for which they have been explicitly authorized to do so by Sonomed Escalon and shall in no case resell product or otherwise facilitate resale of product into any countries into which sales are restricted by the United States Government. Failure by Buyer to comply may result in immediate termination of distribution rights, legal action including compensatory damages, and other action, as deemed appropriate by Sonomed Escalon and/or legal authorities. 

20) SUPPLEMENTAL CLAUSES FOR AXIS IMAGE MANAGEMENT ORDERS In addition to all other terms and conditions stated within this document, the following terms and conditions apply to orders for AXIS Image Management (“AXIS”):

A)  Definitions: “AXIS Customer-Hosted Solution” refers to system where AXIS software and images reside on servers provided and controlled by Buyer. “AXIS Cloud Solution” refers to system where AXIS software and images reside on servers provided and controlled by Sonomed Escalon.

B)  AXIS Licensing: Use of AXIS is licensed to Buyer (“AXIS License”) and Sonomed Escalon retains all ownership rights of any AXIS-related software installed for benefit of Buyer, regardless of software physical location. Buyer and their agents agree to the AXIS End User License Agreement (“AXIS EULA”) and agrees that all users and agents of AXIS are aware and in compliance with the AXIS EULA, whether they are employees, contractors, consultants, guest users, or otherwise.

C)  AXIS License Term: An AXIS License is valid for the term stated within the order and is issued in one-year increments.

D)  AXIS License Fees: AXIS License fees are valid for the term specified and are subject to change, with written notice, including for integration of additional imaging devices. Payment terms are as specified in AXIS License renewal invoice.

E)   AXIS Cloud Solution Minimum Commitment. Buyer of an AXIS Cloud Solution acknowledges that pricing reflects a minimum commitment of two years of AXIS License unless other specified.

F)   Installation: Sonomed Escalon and Buyer will coordinate installation of AXIS as outlined within the AXIS Service Agreement. Additionally:

1)  Buyer agrees to provide and adequately maintain sufficient information technology (IT) infrastructure as specified within Axis Service Agreement and to allow Sonomed Escalon access to such IT infrastructure as is necessary for Sonomed Escalon to perform installation.

2)  Sonomed Escalon acknowledges agreed upon installation dates are approximate. If Buyer’s order does not cite desired installation date(s) and/or does not expressly prohibit installation in advance of schedule date(s), Buyer agrees that immediate installation is acceptable. If conditions arise which prevent compliance with installation schedules, Sonomed Escalon shall not be liable for any damage, general, consequential or otherwise, for delay in installation or for failure to give notice of delay, and such delay shall not constitute grounds for cancellation. Additionally and without limiting the generality of the foregoing; Sonomed Escalon shall under no circumstances be responsible for failure to fill any orders when due to failure to obtain export licenses; fires; floods; earthquakes; riots, strikes; war; freight embargoes or transportation delays; shortage of labor; inability to secure fuel, material, supplies or power or other energy requirements or on account of shortages thereof, acts of God or of the public enemy; regulatory actions; any existing or future laws or acts of the Federal or any other State Government (including specifically, but not exclusively, any orders, rules or regulations issued by any officials of such government) affecting the conduct of Sonomed Escalon’s business which Sonomed Escalon in its judgment and discretion deems it advisable to comply with either as a legal or patriotic duty, or to any other cause beyond Sonomed Escalon’s reasonable control.

3)  Buyer acknowledges the right of Sonomed Escalon to invoice for partial completion of installation upon completion of milestones.

G)  Third-Party Devices: Buyer acknowledges that successful integration of third-party devices with AXIS may be dependent upon (and directly linked to) specific versions of software which control the device. Buyer further acknowledges that Sonomed Escalon will not be responsible for failure of the Buyer to coordinate and/or verify with Sonomed Escalon regarding compatibility and installation of software upgrades and/or repairs of third-party devices. No warranty is expressed or implied regarding compatibility of AXIS with current or future upgrades of third-party devices and/or software.

H)  Service and Support: Sonomed Escalon provides support for AXIS as part of the AXIS License. Buyer agrees to treat AXIS software and related files as confidential information between the two parties and, as such, only receive support and facilitate access to such information only by Sonomed Escalon authorized service representatives. Further, Buyer agrees that Sonomed Escalon will not be held liable for any errors induced by provision of unauthorized service and that additional costs may be incurred if Sonomed Escalon expends effort to remedy any such errors. Buyer agrees to all provisions of the AXIS Service Agreement.

I)    AXIS License Renewal and Termination: Upon expiration of an AXIS License term (“Expiration Date”), the AXIS license and related support plan is automatically renewed for a one-year increment unless, within not less than ninety (90) calendar days prior to Expiration Date, either party notifies the other in writing, receipt of which is confirmed, of its intent not to renew. Either party may choose not to renew an AXIS License for any or no reason. Additionally:

1. AXIS Cloud Solution: Upon termination of an AXIS License for AXIS Cloud Solution, Sonomed Escalon will enable Buyer to download imaging data prior to Expiration Date via the AXIS interface in format in which it resides on the cloud server. Sonomed Escalon will disable Buyer access to AXIS Cloud Solution effective as of the Expiration Date and will permanently delete all associated data to ensure compliance with HIPAA and other patient security requirements.

2. AXIS Customer-Hosted Solutions: Upon termination of AXIS license for AXIS Customer-Hosted Solutions, Sonomed Escalon shall be provided reasonable access to Buyer’s server and imaging devices on and continuously for at least two (2) weeks after Expiration Date so that Sonomed Escalon may remove AXIS software. AXIS License will automatically renew if Sonomed Escalon is not provided timely access to remove AXIS software. Sonomed Escalon will not remove or copy any patient data. Following removal of AXIS software from Buyer’s server and imaging devices, Buyer is not allowed to restore AXIS software from backup copies or otherwise use AXIS in any manner without a valid AXIS License and any such attempt to do so, including through engagement of any third parties, is strictly prohibited and will be prosecuted to the full extent of the law.

3. Data Exportation: Should Buyer request Sonomed Escalon’s assistance in exporting data from AXIS following nonrenewal of an AXIS License, Sonomed Escalon reserves the right to accept or not accept the request and to charge for such services if a request is accepted. In such cases, Sonomed Escalon will provide quotation to Buyer for acceptance prior to commencing any associated work.

4. Full Term: No credit will be given or pro-rated for any partial use of AXIS License term by Buyer.

J)   Suspension of Service: Sonomed Escalon reserves the right to disable Buyer’s ability to use AXIS as a result of failure to pay any outstanding invoice balance, including for AXIS License fees, within the payment terms specified, while preserving rights to collect payment in full for any product or service previously accepted, including AXIS License renewal.

K)  Private Health Information (PHI): From time to time, technical services representatives of Sonomed Escalon may be provided access PHI of Buyer’s patients in order to support AXIS. Sonomed Escalon has information security policies and practices in place complaint to HIPAA requirements. Sonomed Escalon can enter into a separate Business Associate Agreement (BAA) with Buyer as a contracted services provider.

L)   Data Ownership: All data generated during use of AXIS is property of Buyer and shall not be retained or otherwise used by Sonomed Escalon or any third-party affiliated with Sonomed Escalon either during or after contract period(s), except for use in maintaining proper performance of the Buyer’s AXIS instance.

21) REVISION Sonomed Escalon reserves the right to modify these terms and conditions without prior notice.