Terms and Conditions

1. Orders

This order is an offer by Tracer Imaging LLC, or any of its affiliates as designated on the face of this order (collectively, “Tracer Imaging LLC”) to the parties to whom the order is addressed (“Seller”) to purchase the goods and/or services (“Products”) designated in any purchase order or otherwise attached writing and shall be the complete and exclusive agreement between Tracer Imaging LLC and Seller related to the sale and purchase of such Products. The sole manner of acceptance shall be by performance. The Terms and Conditions of Purchase supersede all prior representations, quotations, proposals, orders, agreements or understandings with the exception of supply or pricing agreements executed in writing by the Seller and Tracer Imaging LLC. By accepting Tracer Imaging LLC’s purchase order, Seller has agreed to these Terms and Conditions of Purchase in their entirety (the “Contract”). Confirmation orders, invoices or similar documents submitted by Seller that modify, add to, or are inconsistent with these Terms and Conditions of Purchase shall not constitute a counter-offer and are deemed to be material alterations of Tracer Imaging LLC’s purchase order and are expressly rejected and of no force or effect. In no event will Tracer Imaging LLC be deemed to have in any way changed, enlarged or modified its liabilities or obligations as fixed by these Terms and Conditions of Purchase except by a written amendment executed by an officer of Tracer Imaging LLC. No purchase order is valid unless:

(i) It is placed on Tracer Imaging LLC’s official purchase order form, and
(ii) Tracer Imaging LLC has not withdrawn the order.

Typographical and/or clerical errors made by Tracer Imaging LLC are subject to correction.

2. Prices.

All prices are in U.S. dollars unless otherwise noted. Payment shall be made by Tracer Imaging LLC within seventy-five (75) days of receipt of Seller’s accurate and complete invoice. Unless otherwise agreed in any purchase order, prices are quoted FOB Tracer Imaging LLC’s requested delivery destination unless otherwise noted by Tracer Imaging LLC. Prices quoted by Seller shall include sales, excise, municipal, state or any other government taxes. All taxes and other governmental charges upon the production, manufacture, distribution, sale or use of the Products, to the extent required or not forbidden by law to be paid by Seller, shall be paid by Seller.

3. Volume Projections and Quantity

Seller acknowledges that any estimates, forecasts or projections of future anticipated volume or quantity requirements for Products provided by Tracer Imaging LLC are provided for information purposes only and may change over time. If quantities and delivery schedules are not specified in the Contract, they will be as reasonably determined by Tracer Imaging LLC and stated in Tracer Imaging LLC’s firm releases issued to Seller from time to time. If Seller is supplying Tracer Imaging LLC under a vendor managed inventory system pursuant to this Contract, Seller shall maintain Tracer Imaging LLC’s supply at required levels as indicated through the vendor managed inventory system at all times during the terms of this Contract.

4. Shipping.

Seller shall use the carrier designated by Tracer Imaging LLC. Seller shall comply with all applicable regulations or other legal requirements concerning the manufacture, packaging, packing and delivery of the Products. Any additional shipping expenses as a result of Seller’s backorders or shipments of a lesser quantity than specified shall be paid by Seller unless Tracer Imaging LLC authorizes such shipping expenses in writing. The Products shall be properly packed and secured in such a manner as to reach their destination in good condition under normal conditions of transport. Seller shall mark the purchase order number on each container and enclose in each container a packing slip with the purchase order number. Seller shall mail all invoices in duplicate and shipping documents to Buyer for each shipment on the day each such shipment is made. Seller shall bear all risk of loss until Products are delivered to Tracer Imaging LLC (including off-loading and stacking) and accepted. Tracer Imaging LLC shall not be obligated to return to Seller any packaging or packaging materials for the Products, whether or not any Products are accepted by Tracer Imaging LLC.

5. Time.

Seller shall deliver the Products at the time specified in the Contract which shall be during normal business hours. Tracer Imaging LLC, without penalty or liability to Seller, shall have the right to reschedule or postpone any delivery of Products. Time shall be of the essence of the Contract. Seller understands and acknowledges that late or nonconforming delivery will obligate Seller to pay direct, incidental and consequential damages to Tracer Imaging LLC. If for any reason Tracer Imaging LLC is unable to accept delivery of the Products at the time when they are due for delivery Seller shall, if its storage facilities permit, store the Products in a secure manner until Tracer Imaging LLC is ready to accept delivery and Tracer Imaging LLC shall pay Seller’s reasonable charges for storage.

6. Cancellation and Return of Goods.

Tracer Imaging LLC may cancel any purchase order upon written notice to Seller. In the event of such cancellation, Tracer Imaging LLC is responsible to Seller for damages related to the cost of any finished goods or work in process that corresponds to Tracer Imaging LLC’s purchase order. With respect to conforming goods that have already been delivered to Tracer Imaging LLC as of the date of cancellation, Tracer Imaging LLC shall have the right to return such goods to the Seller, subject only to an obligation on the part of Tracer Imaging LLC to pay (x) the costs associated with shipping the goods back to Seller; and (y) an amount equal to the lesser of Seller’s actual costs associated with restocking the goods or ten percent (10%) of the purchase price of the returned goods.

Termination of the Contract for any reason shall be without prejudice to rights of Tracer Imaging LLC accrued prior to termination.

7. On-Site Work.

In the event that Seller or its representatives are performing installation or other on-site services related to the purchase of any goods by Tracer Imaging LLC, then Tracer Imaging LLC may issue additional specifications and conditions to such on-site services. Seller shall indemnify Tracer Imaging LLC and hold it harmless against all claims or losses resulting from any personal injury or property damage claim resulting from any work performed by Seller’s employees, agents or subcontractors at Tracer Imaging LLC’s premises.

8. Warranties.

Seller expressly warrants to Tracer Imaging LLC that all Products or goods sold shall:

(i) Conform as to quantity, quality and description with the specifications contained in the Contract;
(ii) Be free of all defects in design, materials and workmanship;
(iii) Be equal in all respects to the samples, patterns, drawings, or specification provided or given by either party;
(iv) Be capable to any standard or performance specified in the Contract;
(v) Comply with all statutory requirements and regulations relating to the Products;
(vi) If the purpose for which they are required is indicated in the Contract or known by Seller, either expressly or by implication, be fit for that purpose.

The warranties under this section will be effective for the longer of:

(a) the period provided by applicable law where the Products are used; or (b) the warranty period provided by Tracer Imaging LLC to its customers.

(vii) In addition to the remedies available to Tracer Imaging LLC through this Contract or applicable law, the Seller is liable to pay for all associated costs incurred by Tracer Imaging LLC due to the supply of non-compliant Products. These associated costs are calculated based on:
(a) a fixed administrative charge of ____________________________ to cover all handling, data entry and reporting activities resulting from the supply of non-compliant Products; and (b) any additional costs incurred by Tracer Imaging LLC in managing the non-compliant Products, including but not limited to, all reworks, investigations and other consequential costs.

Tracer Imaging LLC reserves the right to alter the fixed administration charge at anytime without notice to the Seller.

Seller shall repair any defects during the applicable warranty period at Seller’s cost and expense (including, without limitation, for all parts, labor and transportation costs) immediately after being notified of any such defect by Tracer Imaging LLC. The warranties and remedies contained herein supplement the warranties and remedies provided by the Uniform Commercial Code or other applicable law which shall not be disclaimed or limited. All warranties contained in this Contract shall run, and all remedies shall be available to, Tracer Imaging LLC, its affiliates and/or customers, and all such warranties shall survive any delivery, inspection, acceptance or payment by Tracer Imaging LLC.

9. Inspection and Testing.

(i) Before delivering the Products, Seller shall carefully inspect and test them for compliance with specifications.
(ii) Seller shall also at the request of Tracer Imaging LLC supply to Tracer Imaging LLC a copy of Seller’s test sheets and/or inspection reports certified by Seller to be a true copy. In such instances, Seller shall retain the original documents for a period of ten years.
(iii) Tracer Imaging LLC shall be entitled to inspect and test the Products during manufacture, processing or storage. If this right is exercised, Seller shall provide or shall procure the provision of all such facilities as may reasonably be required for such inspections and tests. Tracer Imaging LLC shall have 5 years from receipt of Products from Seller to bring any claim for defective or non-conforming goods.

10. Rejection.

(i) Tracer Imaging LLC may reject or revoke acceptance of the Products if Seller fails to comply with its obligations. Tracer Imaging LLC reserves the right to inspect, reject and/or revoke regardless of any prior payment for the Products or the placement of the Products into use for all defects that were not actually discovered by Tracer Imaging LLC prior to payment or use.
(ii) Tracer Imaging LLC at its sole option may return the rejected or non-conforming Products to Seller at Seller’s risk and expense. In such case, Seller shall within a reasonable time replace such rejected Products with conforming Products. Tracer Imaging LLC may alternatively require Seller to remove, repair and/or replace the defective Products or parts thereof on site without cost to Tracer Imaging LLC.
(iii) Seller shall return to Tracer Imaging LLC any amounts paid to Seller for rejected or non-conforming Products that have been returned to Seller but not replaced.
(iv) Where Tracer Imaging LLC agrees to accept delivery of the Products by installments, the Contract will be construed as a single contract. Nevertheless failure by Seller to deliver any one installment shall be a material breach of the whole Contract.
(v) The above provisions are in addition to and not in substitution for any other remedies that Tracer Imaging LLC may have under applicable law.

11. Care and Return of Patterns, Dies, etc.

(i) All patterns, dies, molds, CAD images, wireframe drawings or any other tooling and any materials supplied by Tracer Imaging LLC or prepared or obtained by Seller for and at the sole cost of Tracer Imaging LLC, shall be and remains the property of Tracer Imaging LLC.
(ii) Seller shall maintain all such items in good order and condition and insure them against all risks while in the custody and on completion of the order or as otherwise directed by Tracer Imaging LLC shall return them to Tracer Imaging LLC in good order and condition.
(iii) Seller must have, or put in place systems to ensure that Tracer Imaging LLC’s property is clearly identifiable and where possible must be physically marked as such.

12. Safety and Statutory Requirements.

(i) Seller warrants that the design, construction and quality of the Products to be supplied to Tracer Imaging LLC comply in all respects with all safety and other requirements by any statute, statutory rule or order, or other instrument having the force of law which may be in force at the time when the same are supplied. Seller shall comply with all environmental laws and regulations that apply to the Products supplied by Seller to Tracer Imaging LLC. Seller agrees to provide Tracer Imaging LLC with Material Safety Data Sheets and Certificate of Analysis when applicable. Seller shall comply with Executive Order 11246, as amended, Sec. 402 of the Vietnam Era Veterans Readjustment Act of 1974, as amended, Sec. 503 of the Rehabilitation Act of 1973, as amended, and Sec. 61-250.5(a) and Public Law 95-507 as such laws contain required contract clauses relative to equal employment opportunity and are incorporated herein by specific reference at 41 CFR 60-1.4(a, d), 60-4.3, 60-250.5(a) and 60-741.5(a).

Seller shall give Tracer Imaging LLC prior written notice of: (a) any delivery of the Products or items accompanying the Products having toxic or other hazards to the safety or health of persons or property and shall provide full details of such hazards and of all precautions which should be taken by Tracer Imaging LLC in respect of the delivery, storage, handling, installation and use of the Products or items and provide Tracer Imaging LLC with all information relating to the properties of the Products or items to enable Tracer Imaging LLC to comply with all relevant legislation relating to the Products or items and/or such hazards; and (b) any delivery of Products which are perishable or of limited lifespan and of any circumstances which may adversely affect the lifespan of such Products.

13. Infringement of Patent, Trademark and Other Rights.

Seller shall indemnify Tracer Imaging LLC against all actions, claims and demands, costs, charges and expenses arising from and incurred by reason of any infringement or alleged infringement of any intellectual property rights including patent, design patents, trademarks or copyrights by the use or sale of any Products supplied by Seller.

14.Use of Information.

All designs, drawings, specifications and information supplied by Tracer Imaging LLC in connection with any order are confidential. All such designs, drawings, specifications and information and any copies thereof must be returned to Tracer Imaging LLC on completion of the order.

15. Confidentiality.

If the parties have entered into a Confidentiality or Non-Disclosure Agreement (“NDA”), the terms and conditions of the NDA shall apply and control for confidentiality obligations between the parties. In the absence of a NDA, Seller may have access to Tracer Imaging LLC’s confidential information including, without limitation, inventions, developments, know how, specifications, business plans, results of testings, systems, financial information, product information, method of operation, customer information, supplier information and compilations of data (“Confidential Information”). Seller shall use Tracer Imaging LLC’s Confidential Information only for the purpose contemplated under this Contract and shall not disclose it to third parties or otherwise use it to its own advantage or Tracer Imaging LLC’s detriment. Confidential Information shall not include information which: (a) is or becomes publicly available without breach of this Contract by Seller; (b) was known to Seller prior to its receipt from Tracer Imaging LLC as evidenced in writing; or (c) is developed by Seller independently of its access to Confidential Information. Seller is permitted to disclose Tracer Imaging LLC’s Confidential Information to its employees and authorize subcontractors on a need to know basis only, provided that such employees or authorized subcontractors have written confidentiality obligations to Seller no less stringent than the confidentiality obligations under this section. Seller shall return Tracer Imaging LLC’s Confidential Information and shall not use Tracer Imaging LLC’s Confidential Information for its own or any third party’s benefit. Seller’s confidentiality obligations shall survive termination of the Contract for so long as Tracer Imaging LLC’s Confidential Information remains confidential. Tracer Imaging LLC shall be entitled to injunctive relief including, but not limited to, preliminary, temporary or permanent injunctions, from any court of competent jurisdiction as may be necessary to enjoin any violation of this section without the necessity of proving immediate irreparable harm or any inadequate remedy at law.

16. Assignment, Waiver, Entire Agreement, Severability.

Seller shall not assign or delegate any of its rights or obligations under this Contract without the prior written consent of Tracer Imaging LLC. If Tracer Imaging LLC consents to Seller’s subcontracting of any of Seller’s duties under this Contract, Seller will ensure that the subcontractor agrees to be bound by all the terms and conditions of the Contract. Tracer Imaging LLC may assign the Contract or any part of it to any person, firm or company without notice to Seller. Tracer Imaging LLC may terminate this Contract upon written notice to Seller without any further liability to Seller if there is a change of control of Seller. The Contract constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior oral or written representations or agreements by the parties with respect to the subject matter of this Contract. Except as authorized in Section 1, neither the Contract nor any of its provisions may be modified, amended or waived, whether orally, through the parties’ course of performance, course of dealing or course of conduct, or manifested in any other way, unless in writing and signed by authorized representatives of both parties. It is the express intention of the parties that such requirement for written modifications, amendments or waivers be strictly enforced notwithstanding judicial precedent or statutory provisions to the contrary. Any provision found invalid or unenforceable will not affect the validity or enforceability of any other provision and the invalid provision may be judicially modified to the extent enforceable. The failure of Tracer Imaging LLC to insist in any one or more instances, upon the performance of the Contract or the failure of Tracer Imaging LLC to exercise any of its rights hereunder shall not be construed as a waiver or relinquishment of any such terms, conditions or rights thereunder and shall not effect Tracer Imaging LLC’s right to insist on strict performance and compliance with regard to any future performance of the Contract.

17. Independent Contractor Status.

Tracer Imaging LLC and Seller are independent contractors. Nothing in this contract makes either party the agent or legal representative of the other party for any purpose. Neither party has authority to assume or to create any obligation on behalf of the other party.

18. Default, Bankruptcy, or Liquidation.

If Seller commits any breach of the terms and conditions of the order, becomes insolvent, is subject to the Bankruptcy courts, enters into an arrangement with its creditors, is put into liquidation or has a receiver appointed, Tracer Imaging LLC may, without prejudice to any other rights which may have accrued or which shall accrue to it:

(i) terminate the order simply by notice in writing to Seller; or
(ii) give any such receiver or liquidator or other person the option of carrying out the order on such terms as Tracer Imaging LLC may specify.

19. Indemnity and Insurance.

Seller shall indemnify Tracer Imaging LLC against all damage or injury to any person or to any property (including the goods themselves) and against all actions, suits, claims, demands, costs, charges or expenses arising out of the Products supplied by Seller. Seller shall maintain the following kinds of insurance with the minimum limits described below:

a. Commercial General Liability Insurance with a minimum Limit of Liability of $1,000,000 each occurrence, $1,000,000 Products/Completed Operations Aggregate Limit and $2,000,000 General Aggregate Limit.
b. Commercial Automobile Liability Insurance including Owned, Hired and Non-Owned Vehicles with a minimum limit of $1,000,000 each accident.
c. Workers’ Compensation Insurance, which provides Statutory Benefits and Employers Liability Insurance with limits of $500,000 (each accident and each employee by disease).
d. Any other insurance as may be required by law.

Before beginning performance of this Contract, Seller shall furnish insurance certificates as directed by Tracer Imaging LLC, satisfactory in form and substance to Tracer Imaging LLC, showing the above coverages, and identifying Tracer Imaging LLC as a certificate holder.

20. Set Off.

Tracer Imaging LLC shall be entitled to apply any sum due from Tracer Imaging LLC to Seller in settlement of any sum due from Seller to Tracer Imaging LLC or to any other company related or affiliated with Tracer Imaging LLC.

21. Force Majeure.

Neither party shall be liable to the other party for delay in scheduled delivery or failure in performance caused by acts beyond such party’s reasonable control without fault or negligence of such party, such as, without limitation, flood, war, embargo, acts of terrorism, riot or the intervention of any governmental authority (“Event of Force Majeure”), provided such party presents a claim and notice in writing to the other party within twenty-four (24) hours of such party becoming aware that an Event of Force Majeure may delay or interrupt performance hereunder. If Seller is unable to perform for any reason, Tracer Imaging LLC may purchase Products from other sources and reduce its purchases from Seller accordingly without liability to Seller.

22. Choice of Law.

All transactions shall be governed by the laws of the State of New York, United States of America, excluding conflict of law rules. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply.

23. Equal Opportunity.

Executive Order 11246, as amended, Sec. 402 of the Vietnam Era Veterans Readjustment Act of 1974, as amended, Sec. 503 of the Rehabilitation Act of 1973, as amended, and Sec. 61 250.5(a) and Public Law 95 507 contain required contract clauses relative to equal employment opportunity and are incorporated herein by specific reference at 41 CFR 60 1.4(a,d), 60 4.3, 60 250.5(a) and 60 741.5(a).

24. Dispute Resolution and Forum Selection.

Any dispute, controversy or claim arising out of or related to this transaction where the matter in controversy does not exceeds the sum of $50,000, exclusive of interest and costs, shall be resolved by binding arbitration. A demand for arbitration shall be served on the other by certified mail. Within forty-five (45) days after a party demands arbitration, the parties shall select a single arbitrator. The selected arbitrator shall conduct the arbitration in a manner substantially similar to the procedures set forth in the Commercial Arbitration Rule of the American Arbitration Association (“AAA”). If the parties are unable to agree on an arbitrator, the party demanding arbitration shall file a demand for arbitration with the AAA and the arbitration shall then proceed in accordance with the Commercial Arbitration Rules of the AAA. In all circumstances, the arbitration shall take place in the State of New York.

Any dispute, controversy or claim arising out of or related to this transaction where the matter in controversy exceeds the sum of $50,000, exclusive of interest and costs, shall be adjudicated exclusively by a court of competent jurisdiction in the State of New York. Seller consents to personal jurisdiction and venue in the State of New York and agrees not to take any action to challenge such jurisdiction or venue.

In the event of any action or proceeding related to this transaction, and Tracer Imaging LLC is determined to be the prevailing party with regard to some or all claims, Seller agrees to pay all of Tracer Imaging LLC’s attorney’s fees and litigation costs up through and including any appeal.