Customer Terms and Conditions

1. GENERAL.  These Terms and Conditions apply to Diba Industries, Inc. d/b/a Arcmed (“Seller”) sale of goods, services, products to Buyer.  These Terms and Conditions supersede any prior or contemporaneous oral or written agreements or communications between them relating to the subject matter hereof.  Additionally, any terms in Buyer's purchase order or any other customer document which are in addition to, or are different or contrary to these terms, are hereby rejected.  The terms of these Terms and Conditions shall extend to Affiliates of Seller.  An “Affiliate” means Bio-Chem Fluidics, Inc. and Diba Industries LTD. (collectively with Diba Industries, Inc., the “Arcmed Group”) and any other entity, including without limitation, any individual, corporation, company, partnership, limited liability company or group, that directly, or indirectly through one or more intermediaries, controls, that is or hereafter becomes a member of the Arcmed Group.  In the event that any Seller Affiliate issues, or is issued, a  purchase order pursuant to these Terms and Conditions, such purchase order: (i) shall incorporate by reference the terms of these Terms and Conditions; (ii) shall be deemed a separate contract between the parties who sign it, with all rights and obligations applicable to Seller hereunder applying instead and solely to the applicable Seller Affiliate; and (iii) is an independent contractual obligation from any other purchase order.  These Terms and Conditions do not transfer ownership of, or grant Buyer any rights to Seller's intellectual property.  As between the parties, all intellectual property rights inherent in and appurtenant to the goods, including all copyrights, trademarks, patents, trade secrets, and all other proprietary rights, shall remain the sole and exclusive property of Seller.  Fulfilment of Buyer's order does not constitute Seller’s acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms and Conditions.
2. DELIVERY, TITLE AND RISK OF LOSS: Except as expressly set forth on the face hereof, the following shall apply: all prices do not include the cost of freight or handling, or costs or charges for insurance or any production, sales, use, transfer, transportation, excise or other tax, tariffs, or custom duties, and Buyer shall pay directly or be charged by Seller for all such costs and/or charges in addition to the price(s) of the product supplied hereunder and Buyer shall be obligated to pay such charges and costs on the same terms as apply to payment of the price(s) hereunder. Seller will select a carrier and arrange shipment F.O.B. Seller’s plant.  Risk of loss and title shall pass to Buyer upon delivery of product to the carrier.  Unless specifically otherwise set forth, Seller shall not be responsible for any loss or liability suffered by Buyer as a result of failure or delay in the delivery of Products.  In the alternative, Seller or Seller’s Affiliates may elect that the products supplied hereunder will be Delivered Ex Works (as such term is defined in Incoterms 2020) at the location specified by Buyer.  Delivery of the products will be deemed to occur when the Seller, or Seller’s Affiliate, as applicable, completes its Delivery obligations under that Incoterm.  To the extent that the products will be Delivered pursuant to an Incoterm 2020, and where there is any conflict or inconsistency between Incoterms 2020 and these Terms and Conditions, Incoterms 2020 will take precedence.
3. PAYMENT TERMS: Terms of payment, unless otherwise agreed in writing, are net 30 days from invoice date, in U.S. dollars. Seller may change such terms of sale at any time upon prior notice to Buyer. If, by the terms of sale, credit is extended to Buyer, Seller reserves the right to revoke credit if Buyer fails to pay for any goods previously delivered as due or if in the judgment of the Seller there has been a material adverse change in Buyer's financial condition and thereupon Seller shall have the right to demand payment or other assurance which it deems adequate before shipment of any further goods. Seller reserves the right to charge interest on delinquent accounts at the lesser of the rate of 12% per annum or the highest rate permitted by applicable law, calculated daily and compounded monthly.  Buyer agrees to pay all costs of collection including reasonable attorney's fees.  As collateral security for the payment of the purchase price of any goods, services or products by Buyer hereunder, 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 all goods and products, 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 Connecticut Uniform Commercial Code.  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.
4. QUOTATION AND ACCEPTANCE: Any quotation submitted by the Seller shall, unless otherwise stated, be open for acceptance within thirty (30) days from the date of the quotation.  A quotation by the Seller does not constitute an offer and the Seller reserves the right to withdraw or revise a quotation at any time prior to the Seller’s acceptance of the Buyer’s order. Seller reserves the right to requote with any change in specifications, quantities, lead time, or payment terms and on a regular basis.
5. CANCELLATIONS: On goods or products fabricated, manufactured or produced to individual Buyer requirements, drawings, specifications or design, Seller reserves the right to fabricate, manufacture or products the entire quantity ordered in one production run, unless shipments will be made in accordance with Buyer's requested schedule.  In the event of cancellation of such non-standard goods, any raw material components, sub-assemblies or finished assemblies on quantities equivalent to the full production run for the entire quantity ordered plus normal overrun shall be as part of applicable cancellation charges.
6. ORDER QUANTITIES: For custom product, Buyer is to accept quantities of articles shipped, so long as quantity is within 10% of the purchase order quantity for each line item.  Seller reserves the right to enforce minimum order quantities.
7. INSPECTION AND REJECTION OF NONCONFORMING PRODUCTS.  Buyer shall inspect the products within thirty (30) days of receipt ("Inspection Period").  Buyer will be deemed to have accepted the products unless Buyer notifies Seller in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. "Nonconforming Products" means only the following: (i) product shipped is different than identified in Buyer's purchase order; or (ii) product's label or packaging incorrectly identifies its contents.  If Buyer timely notifies Seller of any Nonconforming Products, Seller shall, in its sole discretion, (i) replace such Nonconforming Products with conforming products, or (ii) credit or refund the price for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith.  Buyer shall ship, at its expense and risk of loss, the Nonconforming Products to Seller's designated facility.  If Seller exercises its option to replace Nonconforming Products, Seller shall, after receiving Buyer's shipment of Nonconforming Products, ship to Buyer, at Buyer's expense and risk of loss, the replaced Products.  Buyer acknowledges and agrees that the remedies set forth in this Section are Buyer's exclusive remedies for the delivery of Nonconforming Products, and except as provided under this Section and for any express warranty herein, all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return products purchased under these Terms to Seller except to extent expressly set forth herein.
8. WARRANTY: Seller warrants for the applicable period set forth on Table 1 attached hereto and incorporated herein that its products purchased hereunder shall, at the time of shipment, materially conform to Seller's stated specifications and shall be materially free from defects in materials and workmanship.  Products manufactured by a third party ("Third Party Product") may constitute, contain, be contained in, incorporated into, attached to or packaged together with goods, services and products.  Third Party Products are not covered by the foregoing warranty and Seller makes no representations or warranties with respect to any Third Party Products.  Furthermore, Seller makes no representation or warranty, either expressed or implied, that any product is compatible with any particular chemical used by Buyer and chemical compatibility is not covered by the foregoing warranty. Seller's sole liability and obligation under this warranty shall be to replace/repair any product that fails to conform to this warranty.  Seller may, at its sole option, issue a credit to Buyer in the amount of the price hereunder of any product that does not conform to this warranty in lieu of replacement of such product.  NO product shall be returned to Seller except in accordance with Seller's Return Goods Policy as in effect from time to time, which is specifically incorporated herein by reference.  Seller may change its return goods policy upon ninety (90) days’ notice to Buyer.  SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, OF THE PRODUCT SUPPLIED HEREUNDER, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED. SELLER SHALL HAVE NO LIABILITY FOR LOSS OF PROFITS, OR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY CIRCUMSTANCES OR LEGAL THEORY, WHETHER BASED ON NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY, TORT, CONTRACT, OR OTHERWISE. SELLER SHALL IN NO EVENT BE LIABLE IN RESPECT OF THIS ORDER AND/OR PRODUCT DELIVERED ON ACCOUNT OF THIS ORDER FOR ANY AMOUNT GREATER THAN THAT PAID TO SELLER ON ACCOUNT OF THIS ORDER.  Seller shall not be liable for a breach of the warranties set forth in this Section unless: (i) Buyer gives written notice of the defective good or product, reasonably described, to Seller within thirty (30) days of the time when Buyer discovers or ought to have discovered the defect.  The Seller shall not be liable for a breach of the warranty set forth in this Section if: (x) the defect arises because Buyer failed to follow Seller's oral or written instructions as to the storage, installation, commissioning, use or maintenance of such good or product; (y) Buyer alters or repairs such good or product without the prior written consent of Seller; or (z) Buyer is unable to provide Seller with a lot number for any defective good or product.
9. LIMITATION OF LIABILITY: In no event shall Seller be liable to Buyer or any other person for reprocurement costs, lost profits, business interruption, loss of use, punitive, or incidental, special, indirect, or consequential damages of any nature even if Seller has been advised of the possibility thereof.  These include damages related to, arising out of, or in connection with the sale, delivery, installation, use, loss of use, repair, possession, transportation, chemical incompatibility, disposal or performance of the products, including all additions to and replacements of the products.  In no event shall Seller's liability arising in connection with any product(s) sold or to be sold hereunder (whether such liability arises from a claim under contract, warranty, tort, or otherwise) exceed the actual amount paid by Buyer to Seller for the product(s) involved in such claim.
10. PATENT INDEMNITY: Seller warrants that the sale of goods pursuant to these Terms and Conditions, except goods made in compliance with specifications supplied by Buyer, is not an infringement of any valid U.S. patent; provided, however, that Seller's liability hereunder shall be limited to not more than the purchase price of any shipment(s) found to infringe.  This warranty is given upon the condition of Buyer's prompt notification to Seller when any such infringement is alleged or threatened and, if Seller is affected, that Buyer permit Seller complete control of the defense and settlement of any such allegation of threat of infringement. Seller does not warrant that any use of goods sold hereunder by Buyer or any purchaser from or through Buyer, in combination or not in combination with other material, is not an infringement of any patent of any country. Buyer shall indemnify Seller for any and all expenses, direct or indirect, arising when any patent infringement is alleged or threatened because of goods made in compliance with specifications supplied by Buyer.  This section states Seller's sole and exclusive liability for any claim of any third party by way of infringement or the like.
11. CORRECTIONS: Stenographical or clerical errors (including, without limitation, invoice amounts) are subject to correction and must be made within thirty (30) days of error or shall be deemed waived.
12. EXCUSABLE DELAYS: If the performance of any obligation, except payment of moneys due, is prevented, delayed, restricted, or interfered with in any way by reason of any force majeure, act of terrorism (whether actual or threatened), fire, flood, explosion, failure of machinery, strikes, lockouts, or labor trouble, supply of fuel, power, materials, containers or transportation, epidemic or pandemic, or any other act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the party to whom the performance is due, shall be excused from such performance to the extent of such interference. Each party shall use reasonable efforts to remove or resolve such interference with performance as promptly as reasonably possible.
13. HALMA GROUP CODE OF CONDUCT POLICY: Seller has a Code of Conduct policy that is published on its parent company website (www.halma.com) and Buyer is expected to apply broadly similar ethical standards in their operations. In particular, Seller has a zero-tolerance policy towards any bribery or corrupt practices in its business dealings. Buyer represents and warrants to Seller that it has not engaged in business practices which violate any applicable local, state, federal and foreign laws, orders, rules and regulations regarding bribery and corruption, including the U.S. Foreign Corrupt Practices Act (15 U.S.C. §§ 78dd-1, et seq.) (the “FCPA”). Except in compliance with the FCPA, neither Buyer nor any individual acting on its behalf has: (a) given or offered or promised to give, for or on behalf of Buyer, either directly or through a consultant or other third party, anything of value, whether monetary or non-monetary (whether a gift, travel, lodging, meal, payment or otherwise), to or for the benefit of any of the persons or entities listed below; or (b) authorized or approved any of the foregoing: (i) any political party, employee of a political party, or candidate for political office; (ii) any government official, government employee, employee of a government-owned or government-controlled entity, or person acting in an official capacity for or on behalf of the government; or (iii) any official or employee of an international organization (e.g., the Red Cross or the United National), or person acting in an official capacity for or on behalf of such an organization. Buyer shall remain in compliance with this clause during the term of any agreement with Seller and while conducting any business dealings with on behalf of Seller. In the event Buyer breaches this clause, Seller may, in its sole discretion, terminate any agreement with Buyer without penalty and without any compensation to Buyer. Buyer shall indemnify and hold Seller harmless for all claims, demands, damages, costs, fines, penalties, attorney’s fees, and all other expenses arising from failure of the Buyer to comply with this clause.
14. GOVERNING LAWS: These Terms and Conditions of Sale shall be governed by and interpreted in accordance with the substantive laws of the State or Country of the Seller Affiliate issuing, or being issued, a purchase order pursuant to these Terms and Conditions.  For reference, these Terms and Conditions shall be governed by and interpreted in accordance with the substantive laws of (i) the State of Delaware, U.S.A. for Bio-Chem Fluidics, Inc., (ii) the State of New York, U.S.A. for Diba Industries, Inc., and (iii) the laws of England and Wales for Diba Industries LTD.
15. MISCELLANEOUS: Buyer may not assign its rights or delegate its obligations hereunder without Seller’s prior written consent. No waiver of any provision herein shall constitute a waiver of any other provision (whether or not similar) nor shall such waiver constitute a continuing waiver unless otherwise expressly provided in writing. In the event of a conflict between these Terms and Conditions and a separate written agreement, the provisions of such separate agreement will prevail. These Terms and Conditions do not transfer ownership of, or grant Buyer any rights to Seller's intellectual property. As between the parties, all intellectual property rights inherent in and appurtenant to the goods, including all copyrights, trademarks, patents, trade secrets, and all other proprietary rights, shall remain the sole and exclusive property of Seller. In the event that any portion of these Terms and Conditions should, for any reason, be held by a court of competent jurisdiction to be illegal, invalid, unenforceable, or contrary to public policy, then the remainder of these Terms and Conditions shall remain in full force and effect.
16. SEVERABILITY: If any provision or portion hereof is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions or portions of these Terms and Conditions shall remain in full force and effect and shall in no way be affected, impaired or invalidated.  IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THESE TERMS AND CONDITIONS WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES, IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS SUCH.
17. CONFIDENTIALITY:  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 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 these Terms is confidential, solely for the use of performing these Terms and Conditions 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 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 prior to disclosure without restriction prior; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.

Table 1

Warranty Period