Acuutech General Terms and Conditions for The Sale of Goods and Services

1 Applicability.
i These terms and conditions of sale (these “Terms“) are the only terms which govern the sale of the goods (or any part of them) (“Goods“) and services to be provided by Acuutech under this Agreement including any project as described in the Scope Of Works (“Project”) (“Services“) by Acuutech Ventures Inc. (“Acuutech” or “Seller“) to any customer referred to in Seller’s purchase order, other confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing (“Customer“). Notwithstanding anything herein to the contrary, if alongside a purchase order, a written contract signed by both parties is in existence covering the sale of the Goods and Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
ii The Customer’s order for Goods and/or Services on Acuutech’s standard form (the “Purchase Order“) and these Terms (collectively, this “Agreement“) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Customer’s general terms and conditions of purchase regardless whether or when Customer has submitted its purchase order or such terms. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
iii The plan describing the Project and setting out the estimated timetable and responsibilities of each of the parties for, or in connection with, the provision of the Services by Acuutech shall be referred to in these Terms as the “Scope of Works”.
iv Notwithstanding anything to the contrary contained in these Terms, Seller may, from time to time change the Services without the consent of Customer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Purchase Order.
2 Delivery of Goods and Performance of Services.  
i The Purchase Order constitutes an offer by the Customer to purchase the Services or Goods specified in it on the terms of this Agreement. The signing and return of the acknowledgement copy of the Purchase Order form by Acuutech, or Acuutech’s commencement of the Services or delivery of Goods pursuant to the Purchase Order, shall establish a contract for the supply and purchase of those Services or Goods on these conditions.
ii Acuutech shall provide the Goods as described in the Purchase Order but does not guarantee the availability of the Goods. If Acuutech cannot supply the Goods within a reasonable period of time, it shall be entitled to cancel this Agreement without any liability.
iii The Goods will be delivered within a reasonable time after the receipt of Customer’s purchase order. Seller shall not be liable for any delays, loss or damage in transit.
iv Unless otherwise agreed in writing by the parties, Seller shall ensure that the Goods are delivered to the location set out in the order or such other location as the parties may agree (the “Delivery Location“) using Seller’s standard methods for packaging and shipping such Goods. Customer shall take delivery of the Goods within 5 days of Seller’s written notice that the Goods have been delivered to the Delivery Location. Customer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Location.
v Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Customer’s purchase order.
vi Acuutech may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
vii Each delivery of the Goods is accompanied by a delivery note that shows the date of the order, the type and quantity of the Goods (including the code number of the Goods, where applicable) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
viii Delivery is completed after unloading of the Goods at the Delivery Location at which time risk in the Goods shall pass to the Customer.
ix Any dates quoted for delivery are approximate only. Time of delivery is not of the essence.
x Acuutech shall not be liable for any delay in delivery of the Goods that is not caused entirely by Acuutech or is due to the Customer’s failure to provide Acuutech with adequate delivery instructions or any other instructions relevant to the supply of the Goods. If for any reason Customer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Location, or if Seller is unable to deliver the Goods at the Delivery Location on such date because Customer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Customer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Customer picks them up, whereupon Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
xi With respect to the Services, Seller shall use reasonable efforts to: (i) manage and complete the Project, and to deliver all products and materials developed by or provided by Acuutech in relation to the Project in any media, including computer programs, data, diagrams, reports and specifications (including drafts) (“Deliverables”) to the Customer, in accordance with the Scope Of Works; (ii) meet any dates by which a part of the Project is estimated to be performed and/or completed (but any such dates shall be estimates only and time shall not be of the essence of the Agreement) (“Project Milestones”) specified in the Scope of Works, and any such dates shall be estimates only.
xii Acuutech shall appoint a project manager who shall oversee and manage the Project. Acuutech shall use reasonable endeavours to ensure that the same person acts as throughout the Project, but may replace him or her where reasonably necessary in the interests of Acuutech’ s business.
xiii Customer shall (i) cooperate with Seller in all matters relating to the Services and provide such access to Customer’s premises, and such office accommodation and other facilities as may reasonably be requested by Seller, for the purposes of performing the Services; (ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Seller to perform Services in accordance with the requirements of these Terms; (iii) provide such customer materials or information as Seller may request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
3 Shipping Terms. Unless otherwise agreed in writing by the parties Delivery of the Goods shall be made FOB the location set out in the order or such other location as the parties may agree (“Delivery Location) at any time after Acuutech notifies the Customer that the Goods are ready.
4 Title and Risk of Loss. Title and risk of loss passes to Customer upon delivery of the Goods at the Delivery Location. As collateral security for the payment of the purchase price of the Goods, Customer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code.
5 Customer’s Acts or Omissions. If Seller’s performance of its obligations under these Terms is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, Seller shall not be deemed in breach of its obligations under these Terms or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
6 Inspection and Rejection of Nonconforming Goods.  
Customer shall inspect the Goods within three days of receipt (“Inspection Period“). Customer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Customer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
If Customer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Customer in connection therewith. Customer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility at the location specified by the Seller at the time of Customer’s notification. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Customer’s shipment of Nonconforming Goods, ship to Customer, at Customer’s expense and risk of loss, the replaced Goods to the Delivery Location.
Customer acknowledges and agrees that the remedies set forth in Section 6(ii) are Customer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 6(ii), all sales of Goods to Customer are made on a one-way basis and Customer has no right to return Goods purchased under these Terms to Seller.
7 Change of Services
i The Customer’s designated “Project Manager” shall meet as and when requested by Acuutech to discuss matters relating to the Project. If, notwithstanding 1.iv above, either party wishes to change the scope of the Services, it shall submit details of the requested change to the other in writing.
ii If either party requests a change to the scope or execution of the Services, Acuutech shall, within a reasonable time, provide a written estimate to the Customer of:
1 the likely time required to implement the change;
2 any variations to Acuutech’s charges arising from the change;
3 the likely effect of the change on the Scope of Works; and
4 any other impact of the change on the terms of the Agreement.
iii If Acuutech requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.
iv If the Customer wishes Acuutech to proceed with the change, Acuutech has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Scope Of Works and any other relevant terms of the Agreement to take account of the change.
8 Price.  
i Customer shall purchase the Goods and Services from Seller at the prices (the “Price[s]“) set forth in Seller’s Purchase Order.
ii Customer agrees to reimburse Seller for (i) all reasonable travel and out-of-pocket expenses incurred by Seller in connection with the performance of the Services and (ii) the cost of any materials or services reasonably and properly provided by third parties required by Acuutech for the supply of the Services.
iii Where the Services are provided for a fixed price, the total price for the Services shall be the amount set out in the Scope of Works. The total price shall be paid to Acuutech as set out in the Scope of Works or on achieving the corresponding Project Milestone. On achieving a Project Milestone, Acuutech shall invoice the Customer for the charges that are then payable, together with expenses and the costs of materials calculated in accordance with the Contract.
iv All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs and taxes; provided, that, Customer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personal or real property, or other assets.
9 Payment Terms.  
i Any quotation given by the Acuutech shall not constitute an offer, and is only valid for a period of 7 Business Days from its date of issue
ii Customer shall pay all invoiced amounts due to Seller within 14 days from the date of Seller’s invoice in cleared funds, or as otherwise agreed to in writing by Seller. Customer shall make all payments hereunder by ACH, wire transfer or check and in US dollars.
iii Where the Services are provided on a time-and-materials basis, unless stated otherwise in the Scope Of Works:
1 the charges payable for the Services shall be calculated in accordance with Acuutech’s standard daily fee rates as amended from time to time;
2 Acuutech’s standard daily fee rates are calculated on the basis of an eight-hour day worked between 8.00 am and 5.00 pm on weekdays (excluding weekends and public holidays);
3 Acuutech shall be entitled to charge at an overtime rate of 50% of the normal rate for part days and for time worked by members of the project team outside the hours referred to in section 9(iii)2 on a pro-rata basis;
4 Acuutech shall ensure that all members of the project team complete time sheets recording time spent on the Project, and Acuutech shall use such time sheets to calculate the charges covered by each monthly invoice referred to in section 9(iii)5; and
5 Acuutech shall invoice the Customer weekly or when it considers it appropriate for its charges for time, expenses and materials for the period concerned, calculated as provided in this section 9. Any expenses, materials and third-party services shall be invoiced by Acuutech and separately itemised.
iv Where the Services are provided for a flat rate, the total price for the Services shall be the amount set out in the Scope Of Works. The total price shall be paid to Acuutech as set out in the Scope Of Works or on achieving the corresponding Project Milestone. On achieving a Project Milestone, Acuutech shall invoice the Customer for the charges that are then payable, together with expenses and the costs of materials calculated in accordance with the Agreement.
v Any fixed price contained in the Scope Of Works excludes:
1 the cost of travelling and any other ancillary expenses reasonably incurred by the project team in connection with the Services, and the cost of any materials or services reasonably and properly provided by third parties required by Acuutech for the supply of the Services; and
2 federal or state taxes, if applicable, which Acuutech shall add to its invoices at the appropriate rate.
vi Time for payment shall be of the essence of the Agreement. Acuutech reserve the right to immediately cease any Services without notice if any payment is outstanding.
vii Without prejudice to any other right or remedy that Acuutech may have, if the Customer fails to pay Acuutech on the due date Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods or performance of any Services if Customer fails to pay any amounts when due hereunder and such failure continues for 10 days following written notice thereof.
iii The price of the Goods shall be the price set out in the Purchase Order, or, if no price is quoted, the price set out in Acuutech’s published price list in force as at the date of delivery.
ix Acuutech may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
1 any factor beyond Acuutech’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
2 any request by the Customer to change the delivery date(s), quantities or type of Goods ordered;
3 any delay caused by any instructions of the Customer or failure of the Customer to give Acuutech adequate or accurate information or instructions;
4 any costs and charges of packaging, insurance and transport of the Goods.
x All payments payable to Acuutech under the Agreement shall become due immediately on termination of the Agreement, despite any other provision. This section is without prejudice to any right to claim for interest, or any such right under the Agreement.
xi All amounts due under these Terms shall be paid by the Customer to Acuutech in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). Acuutech may, without prejudice to any other rights it may have, set off any liability of the Customer to Acuutech against any liability of Acuutech to the Customer.
xii At any time, Seller may change the terms of Customer’s credit, require financial data from Customer for verification of Customer’s creditworthiness, or require a bank guarantee or other security.
10 Intellectual Property Rights
i For the purposes of this Agreement, Intellectual Property Rights means: (a) all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications, and patent disclosures, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and re-examinations thereof, (b) all trademarks, service marks, trade dress, logos, trade names, and corporate names, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith, (c) all copyrightable works, all copyrights, and all applications, registrations, and renewals in connection therewith, (d) all mask works and all applications, registrations, and renewals in connection therewith, (e) all trade secrets and confidential business information (including ideas, research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals), (f) all computer software (including data and related documentation), (g) all other proprietary rights, and (h) all copies and tangible embodiments thereof (in whatever form or medium).
ii All Intellectual Property Rights and all other rights in the Deliverables shall be owned by Acuutech. Acuutech licenses all such rights to the Customer free of charge and on a non-exclusive, non-transferable and worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services as is envisaged by the parties. If Acuutech terminates the Agreement, this licence will automatically terminate.
iii The Customer acknowledges that the Customer’s use of rights in any materials which existed before the commencement of the Project is conditional on Acuutech obtaining a written end-user licence (or sub-licence) of such rights from the relevant licensor or licensors on such terms as will entitle Acuutech to license such rights to the Customer.
11 Limited Warranty.
i Seller’s Goods and Services are subject to Seller’s standard warranty terms which terms are incorporated herein by this reference.  The duration of the warranty is set forth in the Purchase Order.
ii Seller warrants to Customer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a workmanlike manner in accordance with generally recognized industry standards for similar services.
iv Products manufactured by a third party (“Third Party Product“) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are covered by the manufacturer’s warranty,  the terms of which should be retained and reviewed and are expressly not covered by the warranty in Section 11(i). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
12 Limitation of Liability.  
iii The limitation of liability set forth in Section 11(ii) shall not apply to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions.
13 Compliance with Law.
i Customer shall comply with all applicable laws, regulations and ordinances. Customer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Customer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Customer. Customer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
ii The parties shall comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption.
14 Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
15 Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
16 Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Customer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.
17 Data and Privacy. The Customer shall comply with any of Acuutech’s relevant business policies as notified to the Customer and will approve and sign any data protection policies or documents provided by Acuutech and which are relevant to the Services.
18 Force Majeure. The Seller shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
19 Assignment.
i Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
ii Acuutech may at any time assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
20 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
21 Customer Obligations. The Customer shall not, without the prior written consent of Acuutech, at any time from the date of the Agreement to the expiry of one year after the completion of the Services, solicit or entice away from Acuutech or employ or attempt to employ any person who is, or has been engaged as an employee or subcontractor of Acuutech or whom assisted in any Project.
22 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
23 Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York.
24 Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the United States District Court located in the Borough of Manhattan in The City of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
25 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
26 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
27 Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction and Survival.
28 Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.