ENDOSCOPY CORPORATION OF AMERICAN, INC.
TERMS AND CONDITIONS

1. GENERAL. These Terms and Conditions (“Terms”) govern all sales of products and services by Endoscopy Corporation of America, Inc. (“ENDOCORP”) to the purchaser (“Purchaser” or “Customer”). These Terms apply to all quotations, repair estimates, sales orders, purchase orders, invoices, shipments, repairs, and services provided by ENDOCORP, and shall be incorporated therein, unless otherwise expressly agreed in a written agreement signed by a duly authorized officer of ENDOCORP. All agreements, covenants, warranties, and provisions of these Terms shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, successors, assigns, administrators, and personal representatives.

2. PRODUCTS AND SERVICES OFFERED. ENDOCORP offers: (i) reconditioned OEM replacement parts for flexible and other endoscopes; (ii) repair and reconditioning services for replacement parts, assemblies, and sub-assemblies; and (iii) pre-owned and refurbished endoscopes and related equipment. Unless otherwise stated, products sold by ENDOCORP consist primarily of reconditioned OEM replacement parts and pre-owned or refurbished endoscopes and associated equipment. The reconditioning and refurbishment process performed by ENDOCORP includes inspection, evaluation, repair as deemed appropriate by ENDOCORP, replacement of worn or faulty components when necessary, and calibration intended to restore the device to substantially conform to applicable OEM performance specifications at the time of sale.

Purchaser acknowledges that it is purchasing reconditioned OEM replacement parts and/or pre-owned refurbished endoscopes and associated endoscopy devices. Cosmetic variations, signs of prior use, or minor wear may be present. Purchaser agrees that such cosmetic conditions do not constitute defects and do not, by themselves, affect the intended functionality or performance of the product as expressly warranted herein. Purchaser further acknowledges and agrees that ENDOCORP is not a remanufacturer of the products it sells, as that term is used in FDA regulations and guidance. All products are sold subject solely to the limited warranties expressly set forth in these Terms. All other warranties, expressed or implied, are specifically rejected and disclaimed herein.

3. BINDING AGREEMENT AND ACCEPTANCE. These Terms constitute the exclusive basis upon which ENDOCORP offers to sell and provide goods and services, unless otherwise expressly agreed in a written agreement signed by a duly authorized representative of ENDOCORP. Any terms or conditions contained in Purchaser’s purchase order, confirmation, acknowledgment, or other document that are inconsistent with, additional to, or different from these Terms are expressly rejected and shall be of no force or effect, notwithstanding any acceptance, acknowledgment, or performance by ENDOCORP. Purchaser’s acceptance of these Terms shall be conclusively deemed to occur upon any of the following: issuance of a purchase order, written or electronic approval, payment of any invoice, acceptance of delivery, or use of any product or service provided by ENDOCORP.

4. ELIGIBILITY FOR MEDICAL DEVICE PURCHASES. Purchaser represents that it is legally authorized to purchase medical devices or is purchasing on behalf of a licensed end user. Purchaser is solely responsible for verifying eligibility and regulatory compliance and agrees to indemnify, defend, and hold harmless ENDOCORP from claims arising from failure to meet such requirements. Purchaser further agrees to waive any and all claims, causes of actions, damages (including, but not limited to, consequential damages and/or loss of use) or liabilities of any kind or nature against ENDOCORP, which may arise as a result of failure by Purchaser and/or end user the Purchaser represents to comply with eligibility requirements.

5. CLEANING, DISINFECTION, AND STERILIZATION. Purchaser shall be responsible for all cleaning, disinfecting, and sterilization of all products sold by ENDOCORP upon receipt, and prior to, as well as after each use, on patients in accordance with OEM’s “reprocessing’ procedures. ENDOCORP expressly does not represent it complies with, and assumes no responsibility for any reprocessing procedures, including those set forth by any OEM, or any applicable regulatory agency. Purchaser agrees to indemnify, defend, and hold ENDOCORP harmless from claims, damages, or liabilities arising from improper cleaning, disinfection, sterilization, transport, storage, or use, whether by Purchaser or a downstream customer of Purchaser. Purchaser further agrees to waive any and all claims, causes of actions, damages (including, but not limited to, consequential damages and/or loss of use) or liabilities of any kind or nature against ENDOCORP, which may arise or be related to the disinfection, sterilization, transport, or storage of the products sold by ENDOCORP.

6. WARRANTIES.

A. Limited Warranty – Replacement Parts (Non-CCD). ENDOCORP warrants reconditioned OEM and new aftermarket replacement parts to be free from defects in materials and workmanship for fifteen business (15) days from Purchaser’s receipt. ENDOCORP’s sole obligation under this warranty is repair or replacement, at its discretion.
a. This warranty is void if damage results from improper installation, misuse, neglect, modification, or improper handling, as determined by ENDOCORP in its sole judgment. Defective replacement parts are not eligible for refunds.

B. Limited Warranty – CCDs. CCDs are subject to special handling and inspection requirements. ENDOCORP performs and documents pre-shipment video inspection of CCD functionality.
a. Purchaser has two (2) business days from receipt to inspect and test CCDs. If defective, Purchaser may request a credit memo or exchange following ENDOCORP’s re-inspection.
b. The CCD warranty is void if the CCD is handled without ESD-protected equipment, installed or used prior to inspection, or damaged by electrostatic discharge or improper handling, as determined by ENDOCORP in its sole judgment.

C. Limited Warranty – Endoscopes and Medical Devices. Pre-owned endoscopes and related medical devices are warranted for fifteen (15) business days from Purchaser’s receipt. ENDOCORP’s sole obligation is repair or replacement.
a. This warranty excludes damage caused by wear and tear, misuse, fluid invasion, patient bites, improper reprocessing, improper transport or storage, unauthorized repairs, or use of non-OEM-approved accessories or supplies, as determined by ENDOCORP in its sole judgment.

D. Limited Warranty – Repairs. Repairs performed by ENDOCORP are warranted for ninety (90) days from completion for defects directly related to the specific repair performed. This warranty excludes damage caused by misuse, abuse, fluid invasion, improper cleaning, failure to follow OEM procedures, or unauthorized repairs as determined by ENDOCORP in its sole judgment.

E. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, THE GOODS AND SERVICES TO BE PURCHASED UNDER ANY AGREEMENT TO WHICH THESE TERMS FORM A PART OF, ARE FURNISHED AS-IS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMTED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY. ENDOCORP DOES NOT EXTEND TO PURCHASER ANY OEM WARRANTIES WHICH MAY OR MAY NOT EXIST ON THE GOODS. ENDOCORP MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO ANY PRODUCT COMPLIANCE WITH ANY GOVERNING ENTITY, INCLUDING, BUT NOT LIMITED TO, THE UNITED STATES FOOD & DRUG ADMINISTRATION. PURCHASER ACKNOWLEDGES IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY PROVIDED BY ENDOCORP WHICH IS NOT CONTAINED WITHIN THESE TERMS AND PURCHASER REPRESENTS IT HAS CONDUCTED ITS OWN DILIGENCE ON THE GOODS AND SERVICES AND SUCH GOODS AND SERVICES MEET WHATEVER QUALITY STANDARDS ARE APPLICABLE TO PURCHASER OR PURCHASER’S END-USER CUSTOMERS.

7. RETURNS AND REFUNDS. All returns require prior Return Merchandise Authorization (“RMA”).

A. CCDs. Inspection and notice within two (2) business days.

B. Replacement Parts (non-CCD). Inspection and notice within fifteen (15) business days.

C. Endoscopes and Related Devices. Inspection within fifteen (15) business days.

D. Special-Order Items. Non-returnable.

Failure to notify ENDOCORP within the applicable timeframe constitutes irrevocable acceptance. Once ENDOCORP receives your returned item(s), ENDOCORP will inspect and notify Purchaser on the status of their refund. If Purchaser’s return is approved, ENDOCORP will initiate a refund to Purchaser’s original method of payment (minus a 25% restocking fee). Purchaser is responsible for paying shipping costs for all returned items. It is highly recommended that Purchaser obtain insurance and tracking on any return shipments. ENDOCORP is not responsible for items lost in return shipment and will not issue a refund or credit for returned items it did not receive.

8. LIMITATION OF LIABILITY. ENDOCORP’s total aggregate liability for any claim, damages, or loss arising out of or related to any product or service shall not exceed the invoice amount paid for the product or service giving rise to the claim, damages, or loss.

NOTWITHSTANDING ANY PROVISION HEREIN OR IN ANY QUOTE OR OTHER DOCUMENT EXCHANGED BETWEEN ENDOCORP AND PURCHASER, TO THE CONTRARY, IN NO EVENT SHALL ENDOCORP BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS), SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES IN CONNECTION WITH THE SERVICES OR GOODS PROVIDED HEREUNDER, EVEN IF NOTICE WAS GIVEN OF THE POSSIBLITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE.

9. INDEMNIFICATION. Purchaser agrees to indemnify, defend, and hold harmless ENDOCORP, its affiliates, officers, employees, and agents from any claims, damages, losses, liabilities, costs, and attorney’s fees arising from Purchaser’s purchase, use, resale, handling, compliance failures of the products or services purchased by Purchaser, or Purchaser’s breach of these Terms.

10. SHIPPING AND RISK OF LOSS. All shipments are FOB shipping point. Risk of loss passes to Purchaser upon tender to the carrier. Purchaser is responsible for shipping insurance. ENDOCORP is not responsible for carrier delays, loss, or damage.

11. TAXES. Prices exclude all applicable taxes, duties, tariffs, and fees, which shall be added at time of invoice, unless Purchaser provides a valid exemption certificate.

12. ORDER CANCELLATION. Orders canceled more than three (3) days after ENDOCORP’S acceptance are subject to a twenty-five percent (25%) cancellation fee.

13. PAYMENT TERMS. Unless otherwise agreed in writing, payment is due upon delivery. ENDOCORP may require deposits or advance payment as a pre-condition to sale of any good or services, payable in advance of shipment. All pricing and payments shall be made in U.S. Dollars, unless otherwise agreed to in writing by the parties.

14. LATE PAYMENTS & SECURITY INTEREST. Any payment not made when due shall accrue interest at a rate of one and a half percent (1.5%) per month. Purchaser grants ENDOCORP a security interest in all goods until all amounts owed are paid in full. ENDOCORP is authorized to file one or more financing statements with the appropriate governmental authorities to perfect and evidence this security interest.

If Purchaser fails to make payment within a commercially reasonable time after the payment obligation arises, ENDOCORP may exercise any and all remedies available under applicable law, including, without limitation, repossession of unpaid goods. Purchaser shall be responsible for all costs incurred in the collection of unpaid amounts, including, but not limited to, collection costs, attorneys’ fees, repossession expenses, and auction fees.

15. FORCE MAJEURE. ENDOCORP shall not be liable for any delay or failure in the manufacture, delivery of goods, or performance of services caused by events beyond its reasonable control (“Force Majeure”), including, without limitation: (i) fire, storm, flood, accident, strike, lockout, war, terrorism, riot, civil disturbance, embargo, or pandemic; (ii) any law, regulation, order, or restriction of any governmental authority; (iii) ENDOCORP’s inability to obtain raw materials, products, energy, equipment, labor, or transportation from its customary or alternative sources on terms ENDOCORP deems commercially reasonable; or (iv) any other cause beyond ENDOCORP’s reasonable control or that renders performance commercially impracticable or unfeasible.

Neither party shall be liable to the other for failure to perform during the continuation of a Force Majeure event. ENDOCORP shall have no obligation to procure substitute goods or services from third parties during any Force Majeure event. Quantities affected by Force Majeure may, at either party’s option, be reduced or eliminated from the applicable quote or purchase order without liability. Notwithstanding the foregoing, Purchaser’s obligation to make timely payment shall not be excused.

16. GOVERNING LAW AND VENUE. These Terms are governed by the laws of the State of Michigan. The Purchaser agrees that any action or proceeding rising out of or related in any way to this agreement shall be brought solely in a lower or higher court of competent jurisdiction sitting in Wayne County, Michigan, USA. The Purchaser hereby irrevocably and unconditionally consents to the jurisdiction of any such court and hereby irrevocably and unconditionally waives any defense of an inconvenient forum to the maintenance of any action or proceeding in any such court, any objection to venue with respect to any such action or proceeding and any right of jurisdiction on account of the place of residence or domicile of any party thereto. The Purchaser hereby irrevocably and unconditionally waives the right of a jury trial in connection with any claim arising out of or related to this agreement, the information, or the transaction

17. EXPORT COMPLIANCE. Purchaser hereby certifies that any purchase made by Purchaser will not violate any of the US Export Control Laws and agrees that it shall not re-export any item or equipment in violation of the US Export Laws. Purchaser further represents and warrants that (a) Purchaser and each person or entity owning an interest in Purchaser is (i) not currently identified on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, Department of the Treasury (“OFAC”) and/or on any other similar list maintained by OFAC pursuant to any authorizing statute, executive order or regulation (collectively, the “List”), and (ii) not a person or entity with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States; or (b) Purchaser has implemented procedures, and will consistently apply those procedures, to ensure the foregoing representations and warranties remain true and correct at all times.

18. SEVERABILITY. If any provision of these Terms, or any document or contract subject to these Terms, is held unenforceable, the remaining provisions remain in full force and effect.

19. ENTIRE AGREEMENT. These Terms, along with any agreement they are attached to or incorporated in, constitute the entire agreement between the parties and supersede all prior agreements or understandings. Any modification must be in writing and signed by an authorized representative of ENDOCORP.