- Offer and Acceptance: Heath Consultants Incorporated (“Heath”) offers to sell and deliver products in accordance with the terms and conditions set forth herein. Acceptance of this offer is expressly limited to such terms. Heath hereby objects to and rejects any additional or different terms proposed by Buyer, including those contained in Buyer’s purchase order, unless Heath expressly agrees to such terms in writing.
- Title and Delivery: Shipments inside the U.S. shall be delivered F.O.B. Heath’s shipping dock. Title and liability for loss or damage shall pass to Buyer upon Heath’s delivery to Buyer’s designated carrier. Any subsequent loss or damage shall not relieve Buyer from its contractual obligations. Heath shall not be liable for any damages, losses or expenses of any kind incurred by Buyer if Heath fails to meet estimated delivery dates.
- Payment Terms: F.O.B. Company’s warehouse unless otherwise specified. No returns allowed unless authorized by this office in writing. Invoice due and payable in full in Houston, Harris County, Texas in U.S. currency. All invoices shall be due within 30 days of receipt. Interest shall accrue 30 days from the invoice date at the rate of 2% per month, or the maximum legal rate. Prices do not include applicable taxes or duties. Buyer is solely responsible for paying all applicable taxes and duties.
- Contingencies: Heath shall not be in breach of this contract and shall not be liable for any non-performance or delay in performance if such non-performance or delay is due to a force majeure event of any kind or other circumstances beyond Heath’s reasonable control, including but not limited to, shortages of labor, energy, fuel, machinery or materials, technical or yield failures, war, civil unrest, any government act, law or regulation, including any judicial order or decree, any communication or power failure, labor dispute, natural disaster, fire, flood, earthquake, explosion, terrorist act or Act of God.
- Warranties and Related Remedies:
5.1 Heath warrants that Heath products will conform either to Heath’s published specifications for such product or other mutually agreed upon written specifications signed by an authorized Heath representative. For finished products, this warranty lasts for one year after the date Heath ships such products to Buyer. Notwithstanding the foregoing, Heath shall not be liable for any defects that are caused by neglect, misuse or mistreatment by an entity other than Heath, including improper installation or testing, or for any products that have been altered or modified in any way by an entity other than Heath. Moreover, Heath shall not be liable for any defects that result from or relate to Buyer’s design, specifications or instructions for such products. Testing and other quality control techniques are used to the extent Heath deems necessary in its sole discretion. Unless mandated by government requirements, Heath is under no obligation to, and may not, test all parameters of each product.
5.2 EXCEPT AS SET FORTH ABOVE, PRODUCTS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” HEATH DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5.3 Buyer agrees that prior to using or distributing any systems that include Heath products, Buyer will thoroughly test such systems and the functionality of such Heath products as used in such systems. Heath may, at its option, provide technical, applications or design advice, or other services. Buyer agrees that providing these services shall not expand or otherwise alter Heath’s warranties, as set forth above, and no additional obligations or liabilities shall arise from Heath providing such services.
- Indemnity, Limitations, and Damages Disclaimer:
6.1 General Limitations. IN NO EVENT SHALL HEATH BE LIABLE FOR ANY SPECIAL, COLLATERAL, INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS CONTRACT OR THE USE OF THE GOODS PROVIDED HEREUNDER, REGARDLESS OF WHETHER HEATH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO CLAIM, SUIT OR ACTION SHALL BE BROUGHT AGAINST HEATH MORE THAN ONE YEAR AFTER THE RELATED CAUSE OF ACTION HAS OCCURRED.
6.2 Specific Limitations. IN NO EVENT SHALL HEATH’S AGGREGATE LIABILITY FROM ANY WARRANTY, INDEMNITY, OR OTHER OBLIGATION ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT, OR THE USE OF ANY HEATH PRODUCT PROVIDED HEREUNDER, EXCEED THE TOTAL AMOUNT PAID TO HEATH FOR THE PARTICULAR UNITS SOLD UNDER THIS CONTRACT WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED. THE EXISTENCE OF MORE THAN ONE CLAIM AGAINST THE PARTICULAR UNITS SOLD TO BUYER UNDER THIS CONTRACT SHALL NOT ENLARGE OR EXTEND THIS LIMIT.
6.3 INDEMNITY. TO THE FULLEST EXTENT PERMITTED BY LAW, BUYER SHALL DEFEND, INDEMNIFY AND HOLD HEATH AND ITS AGENTS, EMPLOYEES, PARTNERS, PARENTS, SUBSIDIARIES, INSURERS AND AFFILIATES HARMLESS FROM ANY LOSSES, COSTS, CLAIMS (INCLUDING CLAIMS OF BUYER’S EMPLOYEES), EXPENSES (INCLUDING ATTORNEYS’ FEES AND COURT COSTS), SUITS, ACTIONS, JUDGMENTS, FINES, PENALTIES OR DAMAGES OF EVERY NATURE AND DESCRIPTION (COLLECTIVELY “LOSSES”) ARISING OUT OF OR RESULTING FROM THE PRODUCTS SUPPLIED BY HEATH UNDER THIS AGREEMENT, EXCEPT THAT BUYER’S OBLIGATION TO INDEMNIFY HEATH SHALL NOT APPLY TO ANY LOSSES OR LIABILITIES ARISING FROM HEATH’S SOLE NEGLIGENCE, OR THAT PORTION OF ANY LIABILITIES THAT ARISE OUT OF HEATH’S CONTRIBUTING NEGLIGENT ACTS OR NEGLIGENT OMISSIONS.
HEATH SHALL DEFEND AND INDEMNIFY BUYER AND ITS AGENTS, EMPLOYEES, PARTNERS, PARENTS, SUBSIDIARIES, INSURERS AND AFFILIATES FROM ANY LOSSES, COSTS, CLAIMS (INCLUDING CLAIMS OF COMPANY’S EMPLOYEES), EXPENSES (INCLUDING ATTORNEYS’ FEES AND COURT COSTS), SUITS, ACTIONS, JUDGMENTS, FINES, PENALTIES OR DAMAGES OF EVERY NATURE AND DESCRIPTION (COLLECTIVELY “LOSSES”) ARISING OUT OF OR RESULTING FROM THE PRODUCTS SUPPLIED BY HEATH UNDER THIS AGREEMENT, EXCEPT THAT HEATH’S OBLIGATION TO INDEMNIFY BUYER SHALL NOT APPLY TO ANY LOSSES OR LIABILITIES ARISING FROM BUYER’S SOLE NEGLIGENCE, OR THAT PORTION OF ANY LIABILITIES THAT ARISE OUT OF BUYER’S CONTRIBUTING NEGLIGENT ACTS OR NEGLIGENT OMISSIONS.
NOTHING IN THIS SECTION 6.3 ENTITLED “INDEMNITY” SHALL BE CONSTRUED TO EXPAND THE LIABILITY OF HEATH AS SET FORTH IN THIS AGREEMENT. SPECIFICALLY, NOTHING IN SECTION 6.3 SHALL BE CONSTRUED TO NEGATE ANY LIMITATION OF HEATH’S LIABILITY SET FORTH IN THIS AGREEMENT, INCLUDING SECTIONS 6.1 AND 6.2 OF THIS AGREEMENT.
- Governing Law, Venue and enforceability: This contract shall be governed by and interpreted in accordance with the laws of the State of Texas, without reference to conflict-of-laws principles. Buyer agrees to comply with all appropriate legal, ethical and compliance requirements. If for any reason a court of competent jurisdiction finds any provision of this contract to be unenforceable, that provision will be enforced to the maximum extent possible to effectuate the intent of the parties, and the remainder of this contract will continue in full force and effect. Buyer agrees that exclusive jurisdiction for any dispute arising out of or relating to this contract lies within courts located in the State of Texas and consents to venue in Harris County, Texas. Notwithstanding the foregoing, any judgment may be enforced in any United States or foreign court, and Heath may seek injunctive relief in any United States or foreign court.
- Assignment: This contract shall not be assignable by Buyer without Heath’s prior agreed upon written consent.
- Export Control. Buyer agrees to obtain any necessary export license or other documentation prior to the exportation or re-exportation of any product acquired from Heath under this contract. Accordingly, Buyer shall not sell, export, re-export, transfer, divert or otherwise dispose of any such product, technical data, software or software source code directly or indirectly to any person, firm, entity, country or countries prohibited by the United States (“U.S.”) or applicable non-U.S. laws.
- Entire Agreement: This contract constitutes the entire agreement between the parties relating to the sale of the products and supersedes all previous communications, representations, or agreements, either oral or written, with respect to the subject matter hereof. No prior representations or statements relating to the sale of the products made by any Heath representatives, which are not stated herein, shall be binding on Heath. No addition to or modification of any provision of this contract shall be binding upon Heath unless made in writing and signed by a duly authorized Heath representative. No course of dealing or trade usage or course of performance shall be relevant to explain or supplement any term in this contract. These terms and conditions shall prevail not withstanding any different, conflicting or additional terms and conditions that may appear on any purchase order or other writing not expressly incorporated herein, including but not limited to data sheets, application notes and purchase order acknowledgements. The section headings contained in this contract are for reference purposes only and shall not affect in any way the meaning or interpretation of this contract.
- Nothing in this agreement should be interpreted as requiring Heath Consultants to indemnify a purchaser or any of its indemnitees, (including a third party), of its products (either in whole or in part) and/or for any harm caused by the improper calibration, use or maintenance of its products, or using said products in a manner that is unsafe or contrary to the instructions provided by Heath Consultants.