QUANTA DIALYSIS TECHNOLOGIES INC. - TERMS AND CONDITIONS OF CONTRACT

DEFINITIONS

Bespoke Goods: those Goods made to the Customer’s specification.
Conditions: these terms and conditions.
Contract: the contract between the Customer and the Supplier for the supply of Goods and/or Services in accordance with these Conditions comprising the Order and these Conditions.
Customer: Quanta Dialysis Technologies Inc. registered in Delaware whose registered office is at 71 Cherry Hill Drive, Suite 205, Beverly Massachusetts 01915 with file number 7725616.
Deliverables: all documents, products and materials developed by the Supplier or its agents, contractors, and employees as part of or in relation to the Services in any form or media, including drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).
Goods: the goods (or any part of them) set out in the Order.
Specification: any specification for the Goods and or Services agreed in writing by the Customer and the Supplier.
Order: the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s purchase order.
Services: the services, if any, to be provided by the Supplier under the Contract as set out in the Order.
Supplier: the person or firm from whom the Customer purchases the Goods and/or Services as set out in the Order.

2. BASIS OF CONTRACT

  1. The Order constitutes an offer by the Customer to purchase Goods and/or Services from the Supplier in accordance with these Conditions and shall be deemed to be accepted on the earlier of the Supplier issuing written acceptance of the Order or, any act by the Supplier consistent with fulfilling the Order, at which point and on which date the Contract shall come into existence.
  2. These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
  3. These Conditions are not intended to infringe upon the Customers Statutory Rights.
  4. The Supplier waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Supplier that is inconsistent with these Conditions.

3. SUPPLY OF GOODS & SERVICES

  1. Where the Supplier is supplying Goods, the Supplier shall ensure that the Goods shall:
    1. correspond with their description and any applicable Specification or samples;
    2. be of satisfactory quality and fit for purpose held out by the Supplier or made known to the Supplier by the Customer, expressly or by implication;
    3. be free from defects in design, materials and workmanship and remain so for 12 months after delivery or such other period specified in the Order; and
    4. comply with all applicable statutory and regulatory requirements relating to the supply of the Goods.
  2. Where the Supplier is supplying Services, the Supplier shall:
    1. cooperate with the Customer in all matters relating to the Services, and comply with all instructions of the Customer;
    2. perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;
    3. use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with the Contract;
    4. ensure that the Services will conform with all descriptions, standards and specifications set out in the Specification, and that the Deliverables shall be fit for any purpose that the Customer expressly or impliedly makes known to the Supplier;
    5. provide all equipment, tools and such other items as are required to provide the Services;
    6. use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to the Customer, will be free from defects in workmanship, installation and design;
    7. obtain and at all times maintain all licences and consents which may be required for the provision of the Services;
    8. comply with all applicable laws, regulations, regulatory policies, guidelines or industry codes which may apply from time to time to the provision of the Services, and with any policies as notified to the Supplier by the Customer;
    9. observe all health and safety rules and regulations and any other security requirements that apply at any of the Customer’s premises;
    10. hold all Customer Materials (as defined in clause 7) in safe custody at its own risk, maintain the Customer Materials in good condition until returned to the Customer, and not dispose or use the Customer Materials other than in accordance with the Customer’s written instructions or authorization;
    11. not do or omit to do anything which may cause the Customer to lose any licence, authority, consent, or permission on which it relies for the purposes of conducting its business, and the Supplier acknowledges that the Customer may rely or act on the Services; and
    12. comply with any additional obligations as set out in the Specification.

  3. The Customer shall have the right to inspect and test the Goods and/or Deliverables at any time before or after delivery and if following such inspection or testing the Customer considers that the Goods and/or Deliverables do not conform or are unlikely to comply with the Supplier’s undertakings at clause 3.1 or clause 3.2, the Customer shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.

  4. Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Goods and/or Deliverables and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Contract, and the Customer shall have the right to conduct further inspections and tests after the Supplier has carried out its remedial actions.

4. DELIVERY OF GOODS

  1. The Supplier shall deliver the Goods to the location, in the quantities, and on the date(s) as specified in the Order and time shall be of the essence for delivery.
  2. The Supplier shall ensure that:
    1. the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition; and
    2. each delivery of the Goods is accompanied by a delivery note showing the date of the Order, the Order number (if any), the type and quantity of the Goods and special storage instructions (if any).
  3. Delivery of the Goods shall be completed on the completion of unloading of the Goods at the delivery location in the Order.
  4. Title and risk in the Goods shall pass to the Customer on completion of delivery.

5. CUSTOMER REMEDIES

  1. If the Supplier fails to deliver the Goods or perform the Services as set out in the Order or the Specification, then without prejudice to any other Customer remedies, the Supplier shall reimburse to the Customer on demand any additional costs, loss or expenses incurred by the Customer arising from such failure.
  2. If the Supplier delivers Goods that do not comply with the undertakings set out in clause 3.1 or Services which do not comply with the undertakings set out in clause 3.2 and/or the Order and the Specification for the Goods or Services, then, without limiting its other rights or remedies, the Customer shall have one or more of the following rights (whether or not it has accepted the Goods and/or Services):
    1. to terminate the Contract with immediate effect by giving written notice to the Supplier;
    2. to reject the Goods (in whole or in part) or the Deliverables whether or not title has passed and to return them to the Supplier at the Supplier’s own risk and expense and/or to reject the Services;

    3. to require the Supplier to repair or replace the rejected Goods at the Supplier’s cost or, to provide a full refund of the price of the rejected Goods (if paid);

    4. to require the Supplier to re-perform the rejected Services at the Supplier’s cost to the reasonable satisfaction of the Customer or, to provide a full refund of the price of the rejected Services (if paid); and

    5. to refuse to accept any subsequent delivery of the Goods or performance of the Services which the Supplier attempts to make.

  3. These Conditions shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Supplier.

  4. The Customer’s rights under this Contract are in addition to its rights and remedies implied by statute and common law.

6. CHARGES AND PAYMENT

  1. The price for the Goods and/or Services shall be the price set out in the Order. The price for Goods set out in the order shall be inclusive of the costs of packing, packaging, insurance, carriage, fees, applicable taxes, and delivery of the Goods, including but not limited to all sales, use, or excise taxes. The price for Services shall be inclusive of every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services, including but not limited to all sales, use, or excise taxes. No additional charges shall be effective unless agreed in writing and signed by the Customer.
  2. The Supplier shall invoice the Customer in respect of the Goods on or at any time after completion of delivery of the Goods and, in respect of Services, on completion of the Services. Each invoice shall include the relevant purchase order number.
  3. In consideration of the supply of Goods and/or Services by the Supplier, the Customer shall pay the invoiced amounts at the end of the month 90 days net following the month of the invoice of the receipt by the Customer of a correctly rendered invoice to a bank account nominated in writing by the Supplier.

7. CONFIDENTIALITY & INTELLECTUAL PROPERTY

  1. Each party shall keep in strict confidence all technical, commercial, financial, marketing, and other information which is of a confidential nature and has been disclosed to it by the other party and any other confidential information concerning the other party’s business, products, or services which the other party may obtain. Each party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know for the purpose of discharging its obligations under the Contract, and shall ensure that such employees, agents, or subcontractors are subject to obligations of confidentiality corresponding to those set out herein. This clause 7.1 shall survive termination of the Contract.
  2. Any materials, including but not limited to all specifications, plans, drawings, designs, and prototypes, supplied by the Customer to the Supplier in connection with the Order or Specification and any information contained within the Order or Specification (“Customer Materials”) together with intellectual property rights subsisting in such Customer Materials are and shall remain the exclusive property of the Customer. Any and all intellectual property rights subsisting in:
    1. any Bespoke Goods;
    2. any modifications made to any Bespoke Goods (whether made by the Customer or the Supplier and whether made to the Customer’s specification or otherwise) (“Modifications”); and
    3. any materials, including any specifications, plans, drawings, designs, or prototypes, produced by the Customer or Supplier in relation to such Bespoke Goods and Modifications (“Customer Specifications”),

    all belong to and are owned absolutely by the Customer and the Supplier hereby assigns to Customer (including by way of present assignment of future intellectual property rights) all right, title and interest in and to any intellectual property rights that the Supplier may acquire in or relating to such Bespoke Goods, Modifications or Customer Specifications and the Supplier shall do all acts and things the Customer may reasonably require to give effect to this provision.

  3. The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.

  4. Any and all Customer Materials, Bespoke Goods, Modifications and Customer Specifications, together with any information derived therefrom or otherwise communicated to the Supplier in connection with the Order shall be regarded by the Supplier as secret and confidential and shall not without the consent in writing of the Customer, be published or disclosed to any third party, or made use of by the Supplier except for the purpose of implementing the Order. Any Customer Materials and Customer Specifications must be returned promptly in good order and condition upon Customer’s request.

  5. The Supplier warrants that the Goods and/or Services will not infringe the intellectual property rights of any third party.

8. INDEMNITY & INSURANCE

  1. The Supplier shall keep the Customer indemnified in full against all costs, damages and losses (whether direct or indirect), including any legal and other professional fees and expenses awarded or incurred or paid by the Customer as a result of or in connection with:
    1. any claim made against the Customer by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in Goods or Services, to the extent that the defect in the Goods or Services is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
    2. any claim made against the Customer by a third party arising out of, or in connection with, the supply of the Goods or Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents, or subcontractors; and/or
    3. any claim made against the Customer for actual or alleged infringement of a third party’s intellectual property rights arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services save where the Goods are made to the Customer’s specification.

    This clause 8.1 shall survive termination of the Contract.

  2. For the duration of the Contract, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance to cover the liabilities that may arise under or in connection with the Contract.

9. TERMINATION

  1. Without limiting its other rights or remedies, the Customer may terminate the Contract:
    1. with immediate effect by giving written notice to the Supplier if:
      1. the Supplier commits a breach of clause 3.1.d) or clause 3.2.h); or
      2.  the Supplier commits a material breach of any of its obligations under this Agreement which is incapable of remedy; or
      3. the Supplier fails to remedy where it is capable of remedy or persists in any breach of any its obligations under this Agreement after having been required in writing to remedy or desist from such breach within a period of 14 days; or
      4. if the Supplier becomes insolvent or has a receiver or administrative receiver appointed, has called a meeting of creditors, resolves to go into liquidation or has a petition for its winding up presented (except for any bona fide amalgamation of reconstruction while solvent), or
    2. for convenience by giving the Supplier 1 month’s written notice.

  2. On termination or expiry of the Contract howsoever arising (including as a result of a Force Majeure Event):

    1. the Supplier will make available to the Customer (or its carrier) all Customer equipment and tools, Customer Materials, work-in-process and completed Goods or Deliverables, and the Customer will collect them from the relevant location within 30 days of the Supplier’s written notice requesting collection;

    2. each party will:

      1. return all documents and materials (and any copies) containing the other party’s confidential information;

      2. erase all the other party’s confidential information from its computer systems (to the extent possible and subject to any on-going retention requirements under applicable laws);

      3. on request, certify in writing to the other Party that it has complied with the requirements of this clause 9.2.b); and

      4. if required, retain one copy of any relevant information to support evidence of their compliance with this Contract or applicable laws,

    3. each party will pay any sums due under this Contract at the actual date of termination howsoever arising.

10. FORCE MAJEURE

Neither party shall be liable to the other as a result of any delay or failure to perform its obligation under the Contract if and to the extent such delay or failure is caused by any circumstance which is beyond the reasonable control of that party which by its nature could not have been foreseen by such a party or if it could have been foreseen was unavoidable. If such circumstances prevent the Supplier from supplying the Goods and/or Services for more than 4 weeks, the Customer shall have the right, without limiting its other rights or remedies, to terminate this Contract immediately on giving written notice.

11. ASSIGNMENT & SUBCONTRACTING

  1. The Supplier shall not assign, transfer, charge, subcontract, or deal in any other manner with all or any of its rights or obligations under the Contract without the prior consent of the Customer. Where consent is given for the subcontracting or delegation of any of the Supplier’s obligations, the Supplier shall remain responsible for the performance of this Contract and shall be liable for the acts and omissions of any subcontractors.
  2. The Customer may assign, transfer, charge, subcontract, or deal in any manner with all or any of its rights under he Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.

12. RELATIONSHIP OF PARTIES AND THIRD-PARTY BENEFICIARIES

  1. The relationship between the parties is that of independent contractors. Nothing contained in the Contract 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.
  2. This Contract 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 this Contract.

13. SEVERABILITY

If any term or provision of this Contract is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Contract or invalidate or render unenforceable such term or provision in any other jurisdiction.

14. GOVERNING LAW & JURISDICTION

All matters arising out of or relating to this Contract are governed by and construed in accordance with the internal laws of the State of Delaware. Any legal suit, action or proceeding arising out of or relating to this Contract shall be instituted in the Federal courts of the United States of America or the courts of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware

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