TERMS AND CONDITIONS – HEALTHCARE EQUIPMENT:

These terms and conditions are the only terms that govern the sale  of the goods (“Goods”) and services (“Services”) by  Consolidated Sterilizer Systems, Inc. to the buyer  Notwithstanding anything herein to the contrary, if 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.

(a) The accompanying Quotation and Sales  Confirmation and these Terms 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 Buyer’s general terms and conditions  of purchase regardless of whether or when Buyer has submitted  its purchase order or such terms. Fulfillment of Buyer’s order  does not constitute acceptance of any of Buyer’s terms and  conditions and does not serve to modify or amend these Terms.

2. Delivery of Goods and Performance of Services.

(a) Each order is custom built to Buyer’s facility and  application requirements. Delivery time will be confirmed upon  Sales Confirmation acceptance. Orders will be shipped via  common carrier unless otherwise stipulated. Delivery delayed by  the Buyer beyond the agreed shipping date will necessitate a  prorated price increase of one and one-half percent (1½%) for  each month of delay for storage fees.

(b) The delivery date(s) quoted are based on Seller’s  best estimate of a realistic time when delivery to the carrier will  be made, and are subject to confirmation at time of acceptance of  any resulting order.

3. Shipping Terms. Delivery of the Goods shall be FOB  point of manufacture (the “Delivery Point”).

4. Title and Risk of Loss. Title and risk of loss pass to  Buyer upon delivery of the Goods at the Delivery Point. As  collateral security for the payment of the purchase price of the  Goods, Buyer hereby grants to Seller a lien on and security  interest in and to all of the right, title, and interest of Buyer 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  Massachusetts Uniform Commercial Code.

5. Cancellation and Restocking Fee.

(a) Cancellation of any order must be by written notice  to Seller and will be subject to cancellation charges, which will include all expenses incurred by Seller and a reasonable profit on  the sale.

(b) Cancellation is subject to a fee calculated as  follows: (i) after receipt of the Sales Confirmation and before  approved drawings or submittal package, ten percent (10%) of the  Price; (ii) after approved drawings or submittal package and  before fabrication has begun, thirty-five percent (35%); and (iii)  after fabrication has begun, up to ninety percent (90%)  (determined by Seller).

6. Price.

(a) Buyer shall purchase the Goods and Services from  Seller at the price[s] (the “Price[s]”) set forth on the Quotation.

(b) 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 Buyer. Buyer shall be responsible for all such charges, costs,  and taxes; provided that Buyer shall not be responsible for any  taxes imposed on, or with respect to, revenues, gross receipts,  personal or real property, or other assets.

(c) Installation pricing assumes all utilities will be in  accordance with sterilizer rough-in drawings/specifications  provided by Seller and accessible within five (5) linear feet of the  unit. If installation is not performed by a Seller-authorized  representative, the cost of “equipment start-up and training”, by  an authorized Seller representative, may be added to the  invoice. Buyer must engage an authorized Seller representative  to perform final sign-off in order to activate the warranty set forth  in Section 8 hereof.

7. Payment Terms.

(a) Payment terms are 30% with order, balance due net  30 days from date of shipment without regard to installation  status. Without credit approval, the balance will be due prior to  shipment. A service charge of one and one-half percent (1½%)  per month will be imposed on all invoices not paid within thirty  (30) days. Buyer shall reimburse Seller for all costs incurred in  collecting any late payments, including attorneys’ fees.

(b) Buyer shall not withhold payment of any amounts  due and payable by reason of any set-off of any claim or dispute  with Seller, whether relating to Seller’s breach, bankruptcy, or  otherwise.

8. Limited Warranty.

(a) Seller warrants only that the Goods shall be free  from faults in workmanship and materials when used in a normal  manner for the purpose for which they were supplied; provided,  however, that this warranty shall be limited to manufacturing defects and defective parts, excluding consumables, found to be  defective within a period of (i) one (1) year from the date of  installation or 15 months from the date of shipment, whichever  occurs first, and (ii) ten (10) years on the sterilizer-chamber  and/or steam generator pressure vessel.

The foregoing warranty is contingent upon Buyer’s following  Seller’s recommendations for installation, proper use, and  preventative maintenance by a Seller-authorized service group.

(b) Seller warrants to Buyer that it shall perform the  Services using personnel of required skill, experience, and  qualifications and in a professional and workmanlike manner in  accordance with generally recognized industry standards for  similar services and shall devote adequate resources to meet its  obligations under this Agreement.

(c) EXCEPT FOR THE WARRANTIES SET  FORTH IN SECTIONS 8(A) AND (B), SELLER MAKES  NO WARRANTY WHATSOEVER WITH RESPECT TO  THE GOODS OR SERVICES, INCLUDING ANY  WARRANTY OF MERCHANTABILITY OR WARRANTY  OF FITNESS FOR A PARTICULAR PURPOSE;  WHETHER EXPRESS OR IMPLIED BY LAW, COURSE  OF DEALING, COURSE OF PERFORMANCE, USAGE  OF TRADE, OR OTHERWISE. 

(d) The Seller shall not be liable for a breach of the  warranties set forth in Sections 8(a) and (b) unless: (i) Buyer  gives written notice to Seller of the defective Goods or Services,  reasonably described, within thirty] days of the time when Buyer  discovers or ought to have discovered the defect; (ii) if applicable,  Seller is given a reasonable opportunity after receiving such  written notice to examine the applicable Goods or work product  and, in the case of Goods, Buyer (if requested to do so by Seller)  returns the applicable Goods to Seller’s place of business at  Seller’s cost for the examination to take place there; and (iii)  Seller reasonably verifies Buyer’s claim that the Goods or  Services are defective.

(e) The Seller shall not be liable for a breach of the  warranty set forth in Sections 8(a) or (b) if: (i) the defect arises  because Buyer failed to follow Seller’s oral or written instructions  as to the storage, installation, commissioning, use or maintenance  of the Goods; or (ii) Buyer alters or repairs the Goods or work  product without the prior written consent of Seller.

(f) Subject to Sections 8(e) and (f) above, (i) with  respect to any such Goods subject to a claim under Section 8(a),  Seller shall, in its sole discretion, either repair or replace such  Goods (or the defective part) or credit or refund the price of such  Goods at the pro rata contract rate; and (ii) with respect to any  Services subject to a claim under Section 8(b), Seller shall, in its  sole discretion, repair or re-perform the applicable Services or  credit or refund the price of such Services at the pro rata contract  rate.

(g) THE REMEDIES SET FORTH IN SECTION  8(G) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE  REMEDY AND SELLER’S ENTIRE LIABILITY FOR  ANY BREACH OF THE LIMITED WARRANTIES SET  FORTH IN SECTIONS 8(A) AND (B). 

9.Limitation of Liability.

(a) IN NO EVENT SHALL EITHER PARTY BE  LIABLE TO THE OTHER PARTY OR ANY THIRD  PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT,  OR FOR ANY CONSEQUENTIAL, INDIRECT,  INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE  DAMAGES WHETHER ARISING OUT OF BREACH OF  CONTRACT, TORT (INCLUDING NEGLIGENCE), OR  OTHERWISE, REGARDLESS OF WHETHER SUCH  DAMAGES WERE FORESEEABLE AND WHETHER OR  NOT SELLER HAS BEEN ADVISED OF THE  POSSIBILITY OF SUCH DAMAGES, AND  NOTWITHSTANDING THE FAILURE OF ANY AGREED  OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. 

(b) IN NO EVENT SHALL SELLER’S  AGGREGATE LIABILITY ARISING OUT OF OR  RELATED TO THIS AGREEMENT, WHETHER  ARISING OUT OF OR RELATED TO BREACH OF  CONTRACT, TORT (INCLUDING NEGLIGENCE), OR  OTHERWISE, EXCEED THE TOTAL OF THE  AMOUNTS PAID TO SELLER FOR THE GOODS AND  SERVICES SOLD HEREUNDER. 

(c) The limitation of liability set forth in Section 10(b)  shall not apply to liability resulting from Seller’s gross negligence  or willful misconduct.

10. Compliance with Law. Each party shall comply with all  applicable laws, regulations, and ordinances. Each party shall  maintain in effect all the licenses, permissions, authorizations,  consents, and permits that it needs to carry out its obligations  under this Agreement.

11. Confidential Information. All non-public, confidential  or proprietary information of Seller, including but not limited to,  information, drawings, plans, and specifications, pricing,  discounts, or rebates, disclosed by Seller to Buyer, 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, Buyer  shall promptly return all documents and other materials received  from Seller. Seller shall be entitled to seek 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 Buyer  at the time of disclosure; or (c) rightfully obtained by Buyer on a  non-confidential basis from a third party.

12. Force Majeure. No party shall be liable or responsible to  the other party, or be deemed to have defaulted under or breached  this Agreement, for any failure or delay in fulfilling or performing  any term of this Agreement (except for Buyer’s obligations to  make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the  impacted party’s (“Impacted Party”) reasonable control,  including, without limitation, strikes, restrictions of the United  State Government, or other governments having jurisdiction,  delays in transportation, unusually severe weather, war, act of  public emergency, fire, acts of God, inability to obtain necessary  labor, materials, or manufacturing facilities. The Impacted Party  shall use diligent efforts to end the failure or delay and ensure the  effects of such Force Majeure Event are minimized. The  Impacted Party shall resume the performance of its obligations as  soon as reasonably practicable after the removal of the cause. In  the event that the Impacted Party’s failure or delay remains  uncured for a period of 60 days following written notice given by  it under this Section 12, either party may thereafter terminate this  Agreement upon 10 days’ written notice.

13. Subcontractors. Nothing in this Agreement shall  prevent a party from utilizing the services of any subcontractor as  it deems appropriate to perform its obligations under this  Agreement; provided, however, that each party shall require its  subcontractors to comply with all applicable terms and conditions  of this Agreement in providing such services and each party shall  remain primarily liable to the other party for the performance of  such subcontractor.

14. Relationship of the Parties. The relationship between the  parties is that of independent contractors. Neither party shall have  authority to bind the other party.

15. No Third-Party Beneficiaries. Nothing in this  Agreement shall confer any right in any third party.

16. Governing Law. This Agreement is governed by and  construed in accordance with the laws of the State of the  Commonwealth of Massachusetts without giving effect to any  choice or conflict of law provision or rule.

17. Submission to Jurisdiction. Any 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 courts of  the Commonwealth of Massachusetts, in each case located in the  City of Boston, and each party irrevocably submits to the  exclusive jurisdiction of such courts in any such action or  proceeding.

18. 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.

19. 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.

20. Amendment.

(a) Subject to Section 20(b) below, 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.

(b) To the extent there are changes to the scope of  Services consisting of additions, deletions, or other revisions or  impacts to the performance of the Services or the schedule,  including those required by modifications to a prime contract  issued subsequent to the execution of this Agreement, the  applicable Price and schedule for the Services shall be adjusted  accordingly. Prior to the commencement of such changed or  revised Services, unless the change or revision is caused by an  emergency, Seller shall submit promptly to the Buyer written  copies of proposed change order for adjustment to the Price and  schedule. Buyer shall respond to the proposed change order  within five (5) days of receipt. Seller is under no obligation to  perform changed work until it receives a written change order  signed by Buyer.