Terms and Conditions of Sale

1. ORDER CONFIRMATION
Orders greater than $1000.00 USD must be initiated by written purchase order to Mizuho OSI. The following terms and conditions (the “Terms”) are attached to and made a part of the Quote (collectively, the “Quote”). No written or verbal confirmation by Customer will be binding on Mizuho OSI until accepted and acknowledged by Mizuho OSI through order confirmation via email or fax to Customer. All purchase orders accepted by Mizuho OSI will represent Customer’s unqualified acceptance of these Terms. No waiver, modification, or additions to these Terms will be binding unless authorized in writing by a duly authorized executive of Mizuho OSI.
 2. EQUIPMENT
The equipment covered under these Terms is limited to the equipment described on the Quote (the “Equipment”).
 3. PRICES AND TAXES
Prices are FCA Mizuho OSI facility located at 30031 Ahern Avenue, Union City, CA 94587 (“FCA Origin”), and are exclusive of all customs duties and tariffs and all national, state, and local taxes, fees or charges now in force or enacted in future. Under U.S. Federal Healthcare Program regulations, Customer is to report discounts to the appropriate third party payer, including Medicare, Medicaid, and other federally funded healthcare programs, when applicable. Any tax, fee, or charge imposed by any governmental authority pursuant to this transaction between Mizuho OSI and Customer, will be paid by Customer in addition to the prices listed in the attached Quote or invoice. Mizuho OSI will pay the medical excise tax, if assessed on the transaction. Prices do not include any federal, state or local sales, use or value-added taxes payable in connection with this order. All such taxes shall be paid by Customer. Customer shall indemnify Mizuho OSI from and against such taxes, plus interest and penalties thereon, including, but not limited to, tax, interest and penalties resulting from a failure to collect such taxes because of Mizuho OSI’s reliance upon an invalid exemption certificate provided to Mizuho OSI.
 4. DELIVERY
Unless specifically requested in Customer’s purchase order to use Customer’s third-party freight carrier, equipment will be shipped FCA Origin to Customer via designated common carrier: for freight by Mizuho OSI at such time, title to the goods and all risk of loss, damage or shortage shall pass to Customer, and any claims based thereon must be filed by Customer with the carrier, without supplemental insurance, to the “Ship To” address indicated on the purchase order. Any freight, handling, insurance, and special or export packaging (if applicable) charges will be paid by Customer. Delivery will include one (1) copy of the operator manual. Mizuho OSI shall not be liable for any damages caused by the delay in delivery of the Equipment.
 5. RETURNS
Customer shall obtain Mizuho OSI’s written consent prior to initiating request for return. Customer shall obtain a Return Goods Authorization (“RGA”) from Mizuho OSI by calling 1-800-777-4674 or (510) 429-1500 or via email at custserv@mizuhosi.com and providing the provisions of Section 9 herein apply. A Certificate of Decontamination (provided with RGA) shall be completed by Customer and included with return. A minimum 20% restocking fee is applied to all returns. Returns must be re-packed in its original packing material and crate. Replacement of packing materials will incur a minimum fee of $1,500. Customer is responsible for any damage whatsoever from time of receipt at Customer facility until returned/delivered to Mizuho OSI. Customer is strongly recommended to insure their return.
 6. TERMS OF PAYMENT
All orders are subject to Mizuho OSI credit approval. In the event Customer’s credit application is not approved, the sale will be on a Cash-In-Advance basis. Mizuho OSI reserves the right to refuse any order for any reason whatsoever. Payment for Equipment shall be made Net 30 days by credit card, letter of credit, cash or conventional credit, upon approval and acceptance of Customer’s order by Mizuho OSI. If conventional credit is approved, terms of payment are Net 30 days unless otherwise stated in writing by Mizuho OSI. Payment shall be made to Mizuho OSI at the address on the invoice or such other address as Mizuho OSI may specify. Invoices not paid when due will bear interest from the due date at the rate of 1.5% per month (or any portion hereof) or the highest rate allowed by law, whichever is less. All payments will be in U.S. Dollars.
If you require additional information about a transaction or have a question about your invoice, contact Mizuho OSI Accounts Receivable at 800-777-4674 or email at accountsrec@mizuhosi.com no later than 45 days after receipt of the invoice. Please provide the following information: your name, purchase order number, account number, the invoice number, the dollar amount of the suspected error, a description of the error, a description of the Equipment in question, or if you need more information.
 7. SECURITY INTEREST
Until receipt of payment in full for equipment sold, Mizuho OSI reserves a purchase money security interest in Equipment sold and the proceeds thereof in the amount of the purchase price. In the event of default by Customer in any of its obligations to Mizuho OSI, Mizuho OSI will have the right to repossess the equipment sold. Such security interest will be satisfied by payment in full. A copy of the invoice may be filed with appropriate authorities at any time as a financing statement to protect Mizuho OSI’s security interest. On request of Mizuho OSI, Customer will execute financing statements and other instruments that Mizuho OSI may request to protect Mizuho OSI’s security interest.
 8. PROPRIETARY RIGHTS
Mizuho OSI retains all proprietary rights in and to all intellectual property, including designs, engineering details and other data pertaining to all Equipment sold hereunder, except to the extent rights are expressly granted under a separate written agreement signed by a duly authorized executive of Mizuho OSI.
 9. EQUIPMENT WARRANTY
Mizuho OSI warrants that at the time of shipment, Mizuho OSI Equipment shall conform to the written instructions for use as set forth in the operators’ manual as Mizuho OSI may revise from time-to-time, and shall be free of defects in materials and workmanship. Mizuho OSI surgical tables include a 12-month warranty from date of shipment for defects in materials and workmanship. Customer acknowledges and agrees to use the Equipment in accordance with the operator manual accompanying the Equipment upon delivery by Mizuho OSI to Customer. Any failure by Customer to adhere to the operator manual shall void this warranty in its entirety and Mizuho OSI shall bear no liability of any kind for the Equipment. Written notice of any defect shall be given to Mizuho OSI promptly upon discovery by Customer, and shall fully describe the claimed defect. Defective parts shall be repaired or replaced FCA point of shipment, provided that inspection by Mizuho OSI verifies the claimed defect(s); this shall be Customer’s exclusive remedy. Repairs made without the prior written approval of Mizuho OSI shall void all warranties covering material and workmanship. The foregoing express warranties or those set forth elsewhere on this document are the only warranties of Mizuho OSI applicable to the Equipment sold pursuant to these Terms. All other warranties, whether verbal or written, and all warranties implied by law, including any warranties of merchantability or fitness for a particular purpose, are hereby excluded. Failure on the part of Customer or of other parties to properly maintain the Equipment or the operation of such Equipment, by Customer and/or other parties under conditions more severe than those for which such Equipment was designed, shall void all warranties covering materials and workmanship. Mizuho OSI’s warranties do not apply to defects in Equipment for which payment in full has not been received by Mizuho OSI, and said warranties do not cover normal wear and tear or the erosion, corrosion and/or deterioration of Equipment from unusual causes. Customer assumes liability for and shall bear the costs of compliance with all laws, regulations, codes standards or ordinances applicable to the location, operation and maintenance of the Equipment. No representative or agent of Mizuho OSI is authorized to enlarge upon the express warranties of Mizuho OSI.
10. APPLICABLE LAW AND ARBITRATION
This order and the transaction concerned herein shall be governed by and construed under the laws of the State of California, USA, without reference to principles of conflicts of law. Any controversy or claim arising out of any sale of equipment or any of the terms or covenants herein shall be settled by arbitration conducted in San Francisco, California, in accordance with the rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator(s) may be entered in any court having competent jurisdiction.

11. INDEMNIFICATION/LIABILITY

(A) Indemnification. Mizuho OSI shall indemnify and hold Customer its trustees, officers, employees, and agents harmless from any loss, lawsuit, liability, damage, cost and expense (including
reasonable attorneys’ fees) which may arise out of or result from (i) claims by third persons against Customer that the negligent or intentionally wrongful design or construction of the Equipment has caused damage to property or bodily injury (including death); or (ii) claims that the negligent or intentionally wrongful acts or omissions of Mizuho OSI, its agents or employees in connection with the Terms have caused damage to property (other than to the Equipment itself, as to which the Warranty remedies shall be Customer’s sole and exclusive remedy) or bodily injury (including death). Mizuho OSI’s indemnification obligations hereunder shall not apply to the extent that any claim is caused by the negligence or misconduct of Customer.
Customer shall indemnify and hold Mizuho OSI its trustees, officers, employees, and agents harmless from any loss, lawsuit, liability, damage, cost and expense (including reasonable attorneys’ fees) which may arise out of or result from (i) claims by third persons against Mizuho OSI that the negligent acts or omissions or misconduct of Customer, including use of Equipment not in accordance with operators manual, and its agents or employees in connection with the Terms have caused damage to property or bodily injury (including death). Customer’s indemnification obligations hereunder shall not apply to the extent that any claim is caused by the negligence or misconduct of Mizuho OSI.

(B) Limitation of Liability. In no event shall Mizuho OSI be liable under any legal theory or for any cause whatsoever, whether based upon warranty, contract, tort, negligence or other theory, even if advised of the possibility thereof, for any amount in excess of the purchase price of the Equipment. Neither Mizuho OSI nor Customer shall be liable to the other for any special incidental, punitive, exemplary or consequential losses, damages or expenses (including but not limited to loss of profits, data or use) arising directly or indirectly from the sale, handling,  service or use of the Equipment ordered or furnished or from any cause relating thereto, other than damages resulting from the willful misconduct of Mizuho OSI or Customer.

(C) The invalidity, in whole or in part, of any of the foregoing paragraph will not affect the remainder of such paragraph.

12. CONFIDENTIALITY
The parties shall maintain as confidential any information provided or disclosed by one party to the other party, whether disclosed in writing or disclosed orally, relating to the business of the disclosing party, its customers, or its patients, including any HIPAA related information and/or documentation, and these Terms, including any financial or pricing information (“Confidential Information”). Each party shall use the same degree of care to protect the confidentiality of the disclosed information as that party uses to protect the confidentiality of its own information, but not less than commercially reasonable care. Receiving Party’s obligations do not extend to information that is: (a) publicly known at the time of disclosure or subsequently becomes publicly known through no fault of the Receiving Party; (b) discovered or created by the Receiving Party before disclosure by Disclosing Party; (c) learned by the Receiving Party through legitimate means other than from the Disclosing Party or Disclosing Party’s representatives; or (d) is disclosed by Receiving Party with Disclosing Party’s prior written approval. Receiving Party shall hold and maintain the Confidential Information in strictest confidence for the sole and exclusive benefit of the Disclosing Party. Receiving Party shall carefully restrict access to Confidential Information to employees, contractors, and third parties as is reasonably required and shall require those persons to sign nondisclosure restrictions at least as protective as those in the Terms. Receiving Party shall not, without prior written approval of Disclosing Party, use for Receiving Party’s own benefit, publish, copy, or otherwise disclose to others, or permit the use by others for their benefit or to the detriment of Disclosing Party, any Confidential Information. Receiving Party shall return to Disclosing Party any and all records, notes, and other written, printed, or tangible materials in its possession pertaining to Confidential Information immediately if Disclosing Party requests it in writing.
13. GENERAL PROVISIONS
Customer’s order is accepted on the Terms stated herein and Mizuho OSI’s acceptance of Customer’s order is expressly made conditional upon Customer’s assent to such Terms. Any agreement or understanding, oral or written, which modifies or waives the Terms herein shall be rejected unless agreed to in writing and signed by Mizuho OSI’s authorized officer. Waiver by Mizuho OSI of any breach or default hereunder shall not be deemed a waiver by Mizuho OSI of any other or subsequent breach or default which may thereafter occur. Neither the rights nor the obligations of either Customer or Mizuho OSI are assignable without the prior written consent of the other party. The Terms of sale and all rights and obligations of Customer and Mizuho OSI shall be governed by and construed in accordance with the laws of the State of California.
14. FORCE MAJEURE
Mizuho OSI shall not be liable for delays in delivery to the extent that such delays are due to (1) causes beyond the reasonable control of Mizuho OSI, (2) acts of God, acts of civil or military authority, fire, floods, epidemic, war or riot, or (3) changes to delivery schedule initiated by Customer. In the event of any such delay, Mizuho OSI may, in its sole discretion, terminate Customer’s order or revise the date of delivery of equipment.
15. APPLICABLE LAWS
Mizuho OSI agrees to comply with all FDA and/or International Standards requirements regarding marketing and sale of the Equipment. Provisions of the Fair Labor Standards. Act of 1938, as amended and any other applicable federal state and local laws, rules and regulations, applicable provisions of Executive Order 11246 and 11375, The Rehabilitation Act of 1973, the Vietnam Era Veterans Readjustment Assistance Act of 1974 as amended by The Veterans Employment Opportunities Act of 1998 are hereby incorporated by reference.