Terms & Conditions

ALPHA DIAGNOSTIC INC(ADI) TERMS AND CONDITIONS OF SALES

1- ACCEPTANCE Entire AGREEMENT: Commencement of performance of this purchase order shall constitute acceptance hereof by the Seller. Acceptance of this purchase order shall be unqualified, unconditional and subject to and expressly limited to the terms and conditions hereof. ADI shall not be bound by any provisions additional to or at variance with the terms hereof that may appear in Seller’s quotation, acknowledgement, confirmation, invoice or in any other communication from purchaser(s) to ADI unless such provision is expressly agreed to in a writing signed by an authorized agent of ADI. ADI’s acceptance of or agreement for material shipped shall constitute agreement of such a transaction subject to the provisions hereof only, and shall not constitute acceptance of any counter proposal submitted by purchaser(s) not otherwise accepted in writing signed by an authorized agent of ADI.. Upon acceptance, this purchase order shall constitute the entire agreement between ADI and buyer, shall supersede all prior negotiations, discussions and dealings between ADI and buyer, and may not be modified or rescinded except by a writing signed by both buyer and ADI.

2. INVOICES AND PRICES:  Each invoice submitted by Seller must reference the applicable purchase order number and line item detail with pricing. ADI reserves the right to hold the order(s) for all incorrect PO or non-payment. All prices are firm unless otherwise agreed in writing, in which event ADI shall advise the buyer in writing thirty (30) days in advance of any price change, together with Seller’s stated reason(s) for said price change. The price includes all applicable taxes and charges imposed by any governmental authority. The entire amount of the invoice should be pre-paid in full, including shipping and handling. Sales and use taxes.

3. EXTRA CHARGES: Any extra charges of any kind, including without limitation charges for boxing, packaging, loading, bracing, cartage, fuel, duties, taxes or extra insurance, will be billed if there is any.

4. TRANSPORTATION - RISK OF LOSS - TITLE TO GOODS: All goods shall be shipped by FedEx/DHL freight paid and billed to invoice(s) or on buyer(s) collect accounts.

5. DELIVERY DATE AND SHIPMENT: Goods shipped from ADI at the earliest date available or delivery date is specified in a purchase order issued by buyer(s) the order shall be filled promptly. If no other method of delivery is specified, ADI must utilize a carrier identified on the ADI Shipping Guidelines.

Seller shall package all items in suitable containers to permit safe transportation and handling in compliance with current U.S. Department of Transportation regulations. Each delivered container must be labeled and marked to identify contents without opening and all boxes and packages must contain packing sheets listing contents. Alpha Diagnostic Inc.(ADI). Buyer purchase order number must appear on all shipping containers, packing sheets, delivery tickets and bills of lading. Material Safety Data Sheets may be supplied with the shipment of hazardous materials, and these sheets shall otherwise be available upon request.

6. DELAYS IN DELIVERY: ADI is not responsible for any delay in delivery, lost and or damages of packages. Once its shipped out our from ADI locations, it is responsibility of the buyer(s) to file claim with the respected carrier for any claim(s).

7. SPECIFICATIONS: ADI expressly warrants that all goods and services covered by this purchase order will conform to the specifications, drawings, samples or other description(s) furnished or adopted by ADI and made known to buyer and will be of good quality, material and workmanship and free from defects.

8.WARRANTY: ADI warrants with respect to any goods, that: (I) it has good title to the goods, or will have at the time title is to pass, (2) the goods are free from encumbrances, (3) the goods are fit for the purpose for which bought, (4) the goods are merchantable, (5) the goods have no latent defect, ( 6) the goods are of good material and workmanship, (7) the goods comply with and have been manufactured in compliance with all applicable laws, orders and regulations, and (8) that no goods are adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act ("Act") or within the meaning of any other applicable law in which the definition of adulteration or misbranding are substantially the same as those contained in the Act, as such laws are constituted and effective at the time of shipment or delivery, or as an article which may not, under the provisions of Section 404 or 505 or the Act be introduced into interstate commerce.

Seller warrants that with respect to any services it provides to buyer it shall perform the services in accordance with standards of care, skill and diligence consistent with (i) recognized and sound industry practices, procedures and techniques, (ii) all applicable laws, orders and regulations, (iii) the specifications. documents and procedures applicable to the services, and (iv) the degree of knowledge, skill and judgment customarily exercised by professional firms with respect to services of a similar nature.

Replacement or repaired goods and re-performed services shall be warranted for the same length of time as new goods or originally performed services. All warranties shall extend to buyer, its customers and to users of the goods or services.

This warranty shall survive inspection, acceptance and payment.

9. REJECTIONS:  If any of the goods are found by buyer within a reasonable time after delivery (as appropriate for the goods at issue) to destination to be defective in material or workmanship, or otherwise not in conformity with the requirements of this purchase order, in addition to any other rights which it may have under warranty or otherwise, buyer have the right to reject and return such goods at buyer expense, which goods shall not be replaced by buyer, without written authorization from an authorized agent of ADI. Buyer shall pay all expenses, including demurrage, handling and storage charges, and freight both ways on rejected goods.

10.ALPHA DIAGNOSTIC INC.(ADI) PROPERTY: Unless otherwise agreed in writing, all tools, equipment or material of every description furnished to buyer by ADI or specifically paid for by ADI, and any replacement thereof, or any materials affixed or attached thereto, shall be and remain the sole property of ADI. Such property (a) shall be clearly marked "Property of ADI ’(b) shall not be used except in filling buyer orders; (c) shall be held at buyer’s risk; and (d) shall be delivered without cost to ADI promptly at its written request. Any specifications, drawings, sketches, models, samples, tools, technical information or data, written, oral or graphic or other tangible form shall be immediately returned to ADI without cost upon its request. The information shall be kept confidential by Seller, shall be used only in the filling of buyer orders, or in performing hereunder, and may be disclosed or used for other purposes only upon such time as may be agreed between ADI and buyer in writing. No information furnished by buyer to ADI or in contemplation hereof shall be considered to be confidential or proprietary except as specifically agreed to in writing.

I I. NON-ASSIGNMENT: Non-assignment of any purchase order or any interest herein or any payment due or to become due hereunder, without the written consent of an authorized agent of ADI, shall be void and of no effect.

12. SUBCONTRACTING: The buyer shall not subcontract or delegate performance of all or any part of the work called for under this purchase order without the prior written consent of an authorized agent of ADI.

13. SET-OFF: ADI shall be entitled at all times to set off any amount owing at any time from buyer.

14. COMPLIANCE WITH LAWS: Seller warrants that goods manufactured or services performed pursuant to this purchase order are performed or manufactured and shipped in compliance with all applicable federal, state and local laws, rules and regulations, including but not limited to the Toxic Substances Control Act, the Occupational Safety and Health Act, the Clean Air Act, the Federal Water Pollution Control Act, the Solid Waste Disposal Act, the Resource Conservation and Recovery Act and the Hazardous Materials Transportation Act.

15. FAIR LABOR STANDARDS ACT: In accepting any order, Seller warrants that the goods or services to be furnished hereunder were or will be produced in compliance with the requirements (on the date of shipment or performing) of the Fair Labor Standards Act of 1938, as amended, and unless otherwise agreed in writing Seller shall insert a certificate on all invoices submitted in connection with its purchase order stating that the goods or services covered by the invoice were produced in compliance with the requirements of such Act, including without limitation, Sections l 2(a) and l 5(a) thereof.

16. INSIGNIA: Material rejected or not purchased by buyer which utilizes or carries any ADI name, trade names, trademarks, insignia, symbols, decorative designs or evidences of ADI’s inspection (all hereinafter designated "insignia") shall have all such insignia removed by buyer prior to any further sale, use or disposition thereof. Buyer agrees to indemnify and hold ADI harmless from any claim, loss or damage arising out of Seller’s failure to do so. This clause shall in no way modify provisions hereof relating to the use of information.

17. WORK ON ADI’S OR ITS Vendor’s PREMISES: If Seller’s performance under any purchase order involves operations by buyer on the premises of ADI or one of its vendors, Buyer shall comply with applicable provisions of federal, state and local laws and regulations and shall take all necessary precautions to prevent the occurrence of any injury to persons or property during the progress of such performance. Except to the extent that any such injury is due solely and directly to ADI’s or the negligence of one or more of ADI’s vendors, as the case may be, buyer shall indemnify Alpha Diagnostic Inc.(ADI) and its vendors against all loss which may result from any act or omission of buyer, its agents, employees, or subcontractors. BUyer shall maintain such Public Liability, Property Damage, Personal Injury and Employee’s Liability and Compensation insurance in an amount not less than $1,000,000.

18. TERMINATION: If Seller ceases to conduct its operations in the normal course of business (including inability to meet its obligations as they mature) or if any proceeding under bankruptcy or insolvency laws is brought by or against Seller, or a receiver for Seller is appointed or applied for, or an assignment for the benefit of creditors is made by Seller, then in any such event buyer may terminate all outstanding purchase orders without liability except for conforming deliveries previously made or for conforming goods covered by this purchase order then completed and subsequently delivered promptly in accordance with the terms of this purchase order.  In addition, buyer shall have the right to terminate any purchase order and its related agreement(s) immediately upon written notice in the event that Seller is in breach of Article 32 hereof.

19. NON-WAIVER: The failure by buyer to enforce at any time or for any period of time any of the provisions hereof shall not be a waiver of such provisions nor of the right of ADI thereafter to enforce each and every such provision.

20. CANCELLATION: Buyer may cancel any purchase order prior to shipment by written notice to ADI if items are not custom made and all returns or cancelation are subject to a return fee of 25%.

21. INFRINGEMENT: The following terms apply to any infringement, or claim of infringement, or any patent, trademark or copyright based on the manufacture, normal use or sale of any material or equipment furnished to ADI hereunder or in contemplation hereof. BUyer shall indemnify ADI and its vendors for any loss, damage, expense or liability that may result by reason of any such infringement or claim (including without limitation attorney’s fees and expenses), and shall defend or settle, at its own expense, any action or suit for which it is responsible hereunder. Buyer shall notify Seller of any claim of infringement of which ADI becomes aware and, where commercially feasible, shall cooperate with Seller to facilitate Seller’s defense of any such claims.

22. DRAWINGS: ADI review and approval of drawings submitted by buyer will be for and will cover only general conformity to specifications. Such approval will not constitute approval of any dimensions, quantities or details of the material shown by such drawings, and shall not relieve the buyer of its responsibilities for meeting all specifications of this purchase order. ADI retains rights of final approval for all finished products pursuant to Section 9 hereof.

23. GOVERNING LAW: The contract resulting from acceptance of this purchase order by buyer shall be governed and construed by the laws of the State of Texas.

24. NON-DISCRIMINATION IN EMPLOYMENT: The Seller in performing the work required by this order, shall not discriminate against any person in the employment process because of race, creed, color, sex, age, religion. national origin and veteran or handicap status. The employment process includes but is not limited to employment advertising, job postings, interviews, testing, recruiting, pay, promotion, transfer, demotion, hiring, educational opportunities, lay-offs and recall.

25. CHANGES CONTROL· QUALITY OBLIGATIONS: ( a) Change Control: Buyer agrees not to make any such modification to the goods, including changes in the goods’ components,  manufacturing methods, materials,  manufacturing  sites, equipment, testing protocols, control systems, and any other aspect of the goods’ configuration or performance that affect its form, fit or function, without ADI prior written consent. Buyer will apply all reasonable efforts to provide ADI with as much advance notice as possible.

26. INDEMNIFICATION: Buyer shall indemnify, defend, and hold harmless each of ADI, its affiliates, subsidiaries, divisions, distributors, employees, agents, representatives and customers, and its or their respective successors and assigns (each an "Indemnified Party") from and against, and in respect of, any and all actions. claims, suits, judgments, damages, liabilities. losses, costs, and expenses (including, without limitation, attorneys’ fees) of every kind whatsoever (collectively, "Damages") arising in any manner out of or from, or in connection with any actual or alleged (i) patent, copyright or trademark infringement, or violation  of any other proprietary right, arising out of the purchase, sale, distribution or use of any goods. (ii) breach by Seller of any term or condition of this agreement, (iii) personal injury, wrongful death or property damage arising out of or relating to any goods or services, (iv) any violation on the part of the Seller of any and all federal, state, county, or municipal laws, ordinances, regulations and orders in respect to any goods or services, including, without limitation, United States import or export control law, regulation, treaty or other international agreement to which the United States adheres or complies or any applicable export, import or other laws of any other jurisdiction; and (v) wrongful or negligent act or omission by Seller or its officers, directors, shareholders, employees. agents, representatives or subcontractors.

27. FORCE MAJEURE: Neither party shall be liable for any delay or failure of performance due to causes beyond its reasonable control provided it shall have given notice of any such cause and shall have used its best efforts to mitigate said delay or failure. The Parties shall use due diligence and all commercially reasonable efforts to promptly address, remedy and/or remove any cause of a force majeure event.

28. PUBLICITY: Buyer shall make no reference, advertisement, or promotion regarding or mentioning ADI without the prior written consent of ADI.

29. LIMITATION OF LIABILITY: IN NO EVENT WILL ADI BE LIABLE TO buyer FOR INDIRECT, SPEClAL, INCIDENTIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE, OR OTHER ECONOMIC LOSS.

30. CONFIDENTIALITY: Buyer shall keep confidential and secret any and all Confidential Information of ADI or its affiliates that may be disclosed by or ’on behalf of ADI. "Confidential Information" shall consist of trade secrets, know-how, proprietary information, formula, processes, records, techniques, specifications, information relating to the ADI or its affiliates’ past, present and future marketing and research and development activities and any other information that should reasonably be understood to be confidential that are disclosed to buyer by ADI or its affiliates, whether disclosed in writing, verbally or by any other means.

31. Independent Contractor Relationship: ADI will act solely as an independent contractor in relation to performance under this Agreement, and nothing herein shall be construed to create the relationship of employer and employee, partnership, or joint venture between Alpha Diagnostic Inc.(ADI) and buyer, or ADI and buyer’s officers, directors, employees or agents.

32. Compliance Obligations: ADI intends to conduct its business in accordance with environmental, labor and social standards and to abide by the standards. ADI shall comply, and shall ensure that its subcontractors comply, with reasonably comparable environmental, labor and social standards. ADI acknowledges that it is aware of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and shall comply, and shall ensure that its subcontractors comply, with its principles. Seller shall not offer, promise, give, authorize or consent to the giving of money or anything of material value to any person (i) with the purpose or effect of securing any improper advantage in order to obtain or retain business or (ii) to induce or prevent the performance of an individual’s duties in violation of Applicable Law. Should ADI discover that buyer(s) are in breach of the foregoing, ADI may terminate this Agreement immediately upon written notice. In addition, Seller acknowledges that: (a) ADI is a U.S. corporation or is an affiliate of a U.S. corporation, and, as such, may be subject to the provisions of the Foreign Corrupt Practices Act of 1977 of the United States of America, 91 Statutes at Large, Sections 1495 et seq. (the "FCPA"); and, (b) ADI is subject to other bribery and corruption laws, including without limitation the local laws for the jurisdictions covered by this Agreement. Under the FCPA it is unlawful to pay or to offer to pay anything of value to foreign government officials, government employees, political candidates, or political parties, or to persons or entities who will offer or give such payments to any of the foregoing, in order to obtain or retain business or to secure an improper commercial advantage. Seller further acknowledges that it is familiar with the provisions of the FCPA, the applicable local bribery and corruption laws, and shall not take or permit any action that will either constitute a violation under, or cause ADI to be in violation of, the provisions of the FCPA or applicable local bribery and corruption law.