MIDMARK CORPORATION TERMS AND CONDITIONS OF SALE
1. Contract. Each sale of Midmark products and services ("Products") and the acceptance of any purchase order submitted by a purchaser of Products
("Purchaser") is expressly made conditional on Purchaser's assent to these terms and conditions, and Midmark agrees to furnish the Products only upon
these terms and conditions. Any additional, different, or conflicting terms and conditions set forth in any documents issued by a Purchaser at any time,
including without limitation any purchase orders and any specifications are hereby objected to by Midmark, shall be wholly inapplicable to any sale of
Products and shall not be binding in any way on Midmark. No waiver or amendment to these terms and conditions shall be binding on Midmark unless made in
a writing expressly stating that it is such a waiver or amendment and signed by Midmark.
2. Payment. Midmark may, but is not obligated to, sell Products to a Purchaser on credit. In the event that Midmark sells Products on
credit, then: (a) payment in full shall be due and payable thirty (30) days from the date of invoice; (b) if payment in full is made within ten (10) days
from the date of invoice, Purchaser shall be entitled to a one percent (1%) discount of the purchase price; (c) in the event Purchaser fails to pay Midmark
the purchase price within thirty (30) days of the date of invoice, Purchaser shall pay Midmark interest on such delinquent payment at one and one-half
percent (1.5%) per month or the highest rate permitted by law. Purchaser shall pay all collection expenses, including but not limited to attorney's fees,
incurred by Midmark in the collection of amounts owed by Purchaser.
3. Limited Warranty. The following limited warranties apply to Products sold by Midmark (click on applicable Products):
THESE WARRANTIES ARE MIDMARK'S ONLY WARRANTIES AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. MIDMARK MAKES NO IMPLIED WARRANTIES
OF ANY KIND, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. THESE WARRANTIES ARE LIMITED TO THE REPAIR OR REPLACEMENT
OF DEFECTIVE PARTS. THESE WARRANTIES AND THE REMEDIES SPECIFIED HEREIN ARE THE SOLE REMEDIES OF PURCHASER, WHETHER UNDER THEORIES OF BREACH OF CONTRACT,
BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY.
4. Delivery and Acceptance. Midmark will make reasonable efforts to notify Purchaser of the anticipated delivery date of the Products.
Purchaser shall be on site upon delivery and shall be responsible for unloading the Products. If within forty-eight (48) hours of delivery Purchaser has
not provided Midmark an itemized written notice of an objection to the condition of the Products, Purchaser shall be deemed to have accepted the Products
as satisfactory in all respects.
5. No Damages for Delay. Although Midmark will attempt to meet shipment and delivery schedules, Midmark will not be liable to Purchaser
for any damages resulting from late shipment or delivery, including but not limited to direct, indirect, economic, incidental, or consequential damages,
including without limitation lost profits.
6. Transportation Expenses. All transportation expenses shall be paid by Purchaser. Purchaser shall be responsible for making all
in-transit damage claims to the shipper or carrier.
7. Risk of Loss. The risk of loss, theft, destruction, or damage to the Products shall pass to Purchaser upon delivery of the Products by
Midmark to a shipper or carrier for delivery to Purchaser.
8. Taxes. The purchase price does not include sales, use, excise, or similar taxes. Consequently, in addition to the purchase price for
Products, the amount of any present or future sales, use, excise, or other tax applicable to the sale or use of the Products sold hereunder shall be paid
by Purchaser, or in lieu thereof, Purchaser shall provide Midmark with a tax-exemption certificate acceptable to the taxing authorities. Purchaser shall
hold Midmark harmless from all such taxes.
9. Limitation of Liability. Midmark's liability for any claim of any kind, including negligence and breach of warranty, for any loss or
damage resulting from, arising out of, or connected with the manufacture, sale, delivery, resale, repair, or use of the Products shall in no case exceed
the purchase price for the Products which give rise to the claim.
10. Force Majeure. Midmark shall not be liable for any actions or failure to act due to causes beyond its reasonable control, or due to
acts of God, acts of Purchaser, acts of civil or military authority, priorities, fires, strikes, floods, epidemics, quarantine restrictions, war, riots,
delays in transportation, car shortages, and inability due to causes beyond its reasonable control to obtain necessary labor, materials, or processing
facilities.
11. Security Interest. Midmark retains a security interest in the Products to secure all obligations owed by Purchaser to Midmark.
Purchaser authorizes Midmark to file Uniform Commercial Code financing statements and to take such other actions as Midmark determines to be appropriate
to perfect its security interest. Failure to make any payment as provided herein and any other credit concerns of Midmark shall entitle Midmark to cease
and stop shipments without notice to Purchaser, and Purchaser consents that Midmark, its successors and assigns, shall be and they are hereby authorized to
retake possession and custody of any shipments already made and/or received by Purchaser and upon written notice to Purchaser, cancel the balance and/or
unexecuted portion of this Agreement and hold Purchaser liable for any and all damages incurred as a result of or in any manner growing out of the default
or failure to so pay on the part of Purchaser.
12. Termination, Reduction in Quantity, Rescheduling Delivery. In the event Purchaser desires to terminate any part or all of its purchase
order, reduce the quantity of the Products ordered, or reschedule the delivery, fair compensation shall be made to Midmark which shall take into account,
among other things, expenses incurred and commitments already made by Midmark, reasonable costs and expenses incurred by Midmark in making settlement
hereunder, and the increased costs incurred by Midmark by reason of a revision in the delivery schedule.
13. Return Policy. Prior authorization must be obtained from Midmark for the return of any Product, which authorization Midmark may
withhold at its discretion. If a return is authorized, transportation charges must be prepaid by Purchaser. Items returned for credit are subject to a
charge of 25% or more to cover inspection, reconditioning, restocking, and repackaging. Returned goods must be received undamaged. Risk of loss with
respect to returned goods shall remain with Purchaser until receipt by Midmark.
14. Remedies. In the event of Purchaser's default under these Terms and Conditions of Sale or in the performance of any purchase order,
Midmark shall have available all rights and remedies at law or in equity. Purchaser agrees to pay Midmark all costs and expenses, including attorney's
fees, incurred by Midmark in exercising any of its rights and remedies. No failure on the part of Midmark to exercise and no delay in exercising any right
or remedy shall operate as a waiver thereof. No waiver by Midmark of any default shall constitute a waiver by Midmark of any additional or subsequent default.
15. Entire Agreement. All agreements and understandings of any character heretofore made between Midmark and Purchaser are embodied herein,
and no changes shall be made hereto unless the same shall be in writing and duly signed by an authorized representative of both Midmark and Purchaser. No
terms or provisions contained in any purchase order submitted by Purchaser shall apply.
16. Severability. In the event any provision of these Terms and Conditions of Sale is held or determined by a court of competent jurisdiction
to be invalid or unenforceable, the remaining provisions hereof shall remain in full force and effect.
17. Arbitration. Midmark may, at its discretion, settle any claim or controversy arising out of or relating to any purchase order, or the
breach of non-performance of any provision hereof, by arbitration in accordance with the Arbitration Rules of the American Arbitration Association in effect
at the time such claim or controversy arises. Purchaser and Midmark agree that any arbitration shall be administered and conducted at Dayton, Ohio.
18. Governing Law. These Terms and Conditions of Sale and any purchase order shall be governed by, construed, and enforced in accordance
with the laws of the State of Ohio without reference to its conflict of laws provisions. Purchaser hereby submits to the jurisdiction of the Courts of the
State of Ohio with respect to any claim or controversy arising out of or relating to this Agreement, or the breach of non-performance of any provision hereof.
