GENERAL TERMS AND CONDITIONS FOR PRODUCT SALES

The products being sold by Heath Consultants Incorporated (“Heath”) to Buyer are referred to herein as “Products.” The sale of Products contemplated hereby is referred to as the “Order”

  1. Offer and Acceptance: 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.
  2. Title and Delivery: Shipments inside the U.S. shall be delivered FCA Heath’s shipping dock. The provisions of the “Incoterms” (published by International Chamber of Commerce) valid at the date of this Order shall apply insofar as the same are not inconsistent with the terms and conditions stated herein. Title and liability for loss or damage shall pass to Buyer upon Heath’s delivery to the 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.
  3. Payment Terms:

a. Remittance: Invoice are due and payable in full in Houston, Harris County, Texas in U.S. currency. All payments should be made within 30 days after the date of the invoice. Buyer shall pay the price of the Products without setoff, counterclaim, or any other rights which Buyer may have against Seller. If payment is due on a non-banking day when banks are not open to transmit or receive funds, payment shall be remitted on the banking day immediately preceding the due date.

b. Late Payment. If Buyer fails to pay by the due date thereof any sum required to be paid by Buyer to Heath, Buyer will pay to Heath delinquent payment interest on the delinquent amount from the due date thereof until the date paid at the rate of the lesser of (i) 1½% per month (18% per annum) or (ii) the maximum amount permitted by applicable law. Buyer shall also pay Heath all reasonable costs and expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Heath in connection with Heath’s efforts to collect such delinquent payment or payments.

c. Taxes. Prices do not include applicable taxes or duties. Buyer shall bear and pay all taxes (excluding Seller’s income taxes), duties, levies and other similar charges imposed, levied by any government arising out of this Order, including, without limitation, withholding, sales, use, value added, registration, excise, documentary taxes, duties, levies and other charges.

  1. Returns. No returns allowed unless authorized by Heath in writing
  2. Contingencies: Heath shall not be in breach of this Order 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, epidemic, 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.
  3. Warranties and Related Remedies:

a. 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.

b. 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.

c. 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.

  1. Indemnity, Limitations, and Damages Disclaimer:

a. 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 ORDER OR THE USE OF THE PRODUCTS 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.

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 ORDER, OR THE USE OF ANY HEATH PRODUCT PROVIDED HEREUNDER, EXCEED THE TOTAL AMOUNT PAID TO HEATH FOR THE PARTICULAR PRODUCTS SOLD UNDER THIS ORDER WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED. THE EXISTENCE OF MORE THAN ONE CLAIM AGAINST THE PARTICULAR PRODUCTS SOLD TO BUYER UNDER THIS ORDER SHALL NOT ENLARGE OR EXTEND THIS LIMIT.

b. Indemnity. Subject to Subsections 7.a and 7.b hereof, each party to this Order shall defend, indemnify, and hold harmless the other party, its affiliates and each of their respective officers, directors, employees and agents from all losses, liabilities, costs, and expenses of any kind, including reasonable attorneys’ fees, which one party, its agents, employees, and subcontractors may incur, become legally responsible for, or pay out as a result of bodily injury, including death, to any person, damage to any property, or both, to the extent caused by the other party’s negligence or willful misconduct. In no event, shall either party be obligated to indemnify or be held responsible, in any manner whatsoever, for the negligence of the other party, or the negligence of a third party. This indemnification obligation shall survive the expiration or termination of the Agreement.

Nothing in this Order should be interpreted as requiring Heath 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 the Products in a manner that is unsafe or contrary to the instructions provided by Heath.

  1. Representation of Solvency. Buyer agrees to neither order nor accept Products from Heath while insolvent within the meaning of Section 1.201(23) of the Texas Business and Commerce Code (“UCC”). Every order placed, or delivery accepted, while insolvent shall constitute a written misrepresentation of solvency to Seller within the meaning of Section 2.702(b) of the UCC, or any successor Section of the UCC.
  2. Governing Law, Venue and Enforceability: This Order 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 Order 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 Order will continue in full force and effect. Buyer agrees that exclusive jurisdiction for any dispute arising out of or relating to this Order 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.
  3. Assignment: This Order shall not be assignable by Buyer without Heath’s prior agreed upon written consent.
  4. 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 Order. 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.
  5. Entire Agreement: This Order 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 Order 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 Order. 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 Order are for reference purposes only and shall not affect in any way the meaning or interpretation of this Order.

Rev. 1.11.23