Terms & Conditions for Sale

These general terms and conditions of sale only apply to purchases of Baylis Medical Technologies Inc. (“BMT”) branded products, BMT Products that are branded with Baylis Medical Company Inc. (“BMC”) branding, third-party branded products purchased directly from BMT, and related services made directly from BMT. Purchases made from appointed distributors or other independent resellers will be subject to terms and conditions of sale as may be separately established by each such distributor or reseller, which will in no event be binding upon BMT unless otherwise expressly agreed to. However, BMT extends the Limited Warranty set forth below to Customers purchasing new BMT branded products, BMT Products that are branded with BMC branding and related services from their local authorized BMT distributor. Such manufacturer’s Limited Warranty is in lieu of all other express or implied warranties, including warranties of merchantability and fitness, which are expressly disclaimed.

These terms and conditions are in effect at the time of sale. Terms and conditions are subject to change for future transactions.

1. GENERAL

These general terms and conditions of sale (along with any associated written specification, quotation and/or supplemental terms and conditions provided by BMT) exclusively will govern the sale or licensing by BMT of all goods and services (including without limitation, equipment, products listed in Appendix “A” (if applicable), accessories, training, programming, maintenance, engineering, parts, repair and remanufacturing services, hereinafter, “Products”) furnished to Customer hereunder, whether such sale or licensing is effected by paper-based transactions or via facsimile or other forms of electronic data interchange (“EDI”) or electronic commerce, and represents the entire agreement between Customer and BMT with respect thereto. Customer’s receipt or acceptance of delivery of any of the Products ordered or purchased hereunder will constitute its acceptance of these terms and conditions. No addition or modification to these terms and conditions will be binding on BMT unless agreed to in writing signed by an authorized representative at BMT’s headquarters located at 2645 Matheson Blvd. East, Mississauga, Ontario, Canada L4W 5S4. BMT objects to and rejects other terms and conditions that may be proposed by Customer or that appear on or are referenced in Customer’s purchase order or requisition that are in addition to or otherwise not consistent with the terms and conditions set forth or referenced herein.

Compliance with Law – The parties hereto agree to comply with all applicable federal, state and local laws, regulations, rules, and orders (“Laws”) in the performance of this Agreement, including without limitation the Federal health care programs anti-kickback statute (“AKS”) (42 U.S.C. § 1320a-7b(b)). The parties agree that sales of Products during the Term of this Agreement may include a “discount or other reduction in price,” as such terms are defined under the discount exception of the AKS and the “safe harbor” regulations regarding discounts or other reductions in price set forth in 42 C.F.R. § 1001.952(h). In accordance with such provisions, Customer shall fully and accurately report all prices paid net of discounts where appropriate, and as appropriate, under any applicable payer reimbursement requirements and provide information upon request to Medicare, Medicaid, and other federal health care programs on all discounts and price reductions received from BMT, including, without limitation, disclosing receipt of Equipment (if applicable) at no charge. The Agreement (if applicable) includes List Prices and Contract Prices for each Product to assist Customer in fulfilling its reporting requirements.

Change in Law – In the event there is a change in such Laws or the interpretation thereof by judicial authority or by a governmental agency authorized to enforce any such Laws, such that the provision of the Product or sale of Products pursuant to this Agreement would then be deemed to violate then applicable Law, the parties agree to take no action deemed to be in violation of Law and to enter into good faith negotiations, for such period as the parties may agree, but for no greater than ninety (90) days (the “Renegotiation Period”), to renegotiate the terms of this Agreement in good faith to restructure their relationship to comply with Law and to fulfill, to the maximum extent possible the legitimate expectations of the parties as of the Effective Date of this Agreement. If any such restructuring is not agreed to after good faith negotiations within the Renegotiation Period, this Agreement will terminate at the end of the Renegotiation Period, or sooner upon agreement of the parties.

2. PAYMENT TERMS

Net thirty (30) days from date of invoice with ongoing approved credit as determined by BMT. BMT may render partial invoices and require progressive payments. BMT reserves the right to render invoices electronically and to receive payment by way of electronic funds transfer. Payment by credit card, when permitted, is subject to credit card validation and authorization both at time of agreement and immediately prior to shipment. BMT reserves the right to suspend any further performance hereunder or otherwise in the event payment is not made when due. No payment by offset is permitted. Interest charges will be added to overdue invoices at the rate of one and one half percent (1.5%) per month (subject to any limit imposed by applicable law).

3. DELIVERY TERMS

Delivery terms are FOB BMT’s plant or warehouse or as otherwise agreed to as evidenced by BMT’s order acknowledgment. In all cases title transfers to Customer upon the earlier of BMT’s delivery to Customer or receipt by the first carrier for transport to Customer, except that title to all intellectual property rights associated with the Products remains with BMT or its suppliers and licensors. Acknowledged shipping dates are approximate only and based on prompt receipt of all necessary information from Customer. BMT disclaims all liability for late delivery. BMT shall prepay for shipping, freight, handling, and other related costs for the Products and add such costs to the respective invoice to be paid by the Customer. Customer may be subject to charges related to Chamber of Commerce export document certification.  

4. INDEMNITY (INCLUDING INTELLECTUAL PROPERTY)

Except as excluded herein, BMT shall defend any suit or proceeding brought against Customer arising out of a claim that the design or construction of the Products sold or licensed hereunder by BMT knowingly infringes any patent, copyright or trademark granted or registered in the country of BMT’s shipping destination, provided (a) Customer promptly notifies BMT in writing of any such claim and any suit or proceeding; (b) at BMT’s expense, Customer gives BMT the sole right to defend, settle and control the defence of the suit or proceeding; (c) Customer provides all necessary information and assistance for such defence or settlement; and (d) Customer takes no position adverse to BMT in connection with such claim. In the event BMT is obligated to defend such suit or proceeding, BMT shall pay all costs and damages finally awarded or agreed upon by BMT that are directly related thereto. BMT’s obligations under this paragraph will be fulfilled if BMT, at its option and expense: (i) procures for Customer the right to continue using such Products; (ii) replaces the same with non-infringing equipment/software having functionality similar to that of the Products; (iii) modifies the Products to make them non-infringing while retaining similar functionality; or (iv) if (i)-(iii) are not commercially practicable, refunds to Customer the purchase price of the affected Products in exchange for their return. BMT shall have no obligation to defend or for any other liability with respect to: [a] any suit or proceeding to the extent based on or arising out of a configuration or modification made, specified or requested by Customer and which is incorporated into or constitutes the Products; [b] the use of the Products in a process or application specified, requested, or controlled by Customer or any third parties; or [c] the use of the Products in combination with other equipment, software or materials not supplied by BMT. As used in this paragraph, the term “Products” shall mean only BMT’s standard hardware and software that are generally commercially available, and expressly excludes third-party-branded equipment/software. This exclusion does not apply to BMT Products that are branded with BMC branding. THIS PARAGRAPH IS IN LIEU OF ALL WARRANTIES OR REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, THAT THE PRODUCTS WILL BE FREE OF THE RIGHTFUL CLAIM OF ANY THIRD PARTY BY WAY OF INFRINGEMENT OR THE LIKE.

For any products not manufactured by BMT, the manufacturer’s indemnification, insurance, and warranty policies shall govern. For clarity, BMT shall not indemnify, insure, or warrant Customer for any products that are not manufactured by BMT.

Customer shall indemnify, defend, and hold harmless BMT and its respective affiliates, officers, directors, and employees from and against all third party claims, liabilities, damages, or other expenses, including reasonable attorneys’ fees, whether to person (including bodily injury or death) or property, to the extent that such damage or injury is related in any manner to: (i) the negligent or intentional acts or omissions of the Customer, its officers, agents, employees, independent contractors or assigns; (ii) the breach of the terms and conditions of this Agreement by the Customer, or (iii) any use of resterilized single use consumable Products.

5. RESALE OF THIRD-PARTY BRANDED PRODUCTS AND SERVICES

NOTWITHSTANDING ANY OTHER PROVISION HEREIN, BMT MAKES NO REPRESENTATIONS, PROVIDES NO INDEMNITIES (INTELLECTUAL PROPERTY OR OTHERWISE), AND DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED AND INCLUDING ANY IMPLIED WARRANTY OF MECHANTABILITY OR FITNESS, RELATIVE TO ANY THIRD-PARTY BRANDED PRODUCT OR SERVICE (INCLUDING TRAINING) WHICH MAY BE RESOLD OR SUBLICENSED BY BMT AS A DISCRETE ITEM HEREUNDER. THIS EXCLUSION DOES NOT APPLY TO BMT Products that are branded with BMC branding.

6. PACKING AND MARKING

Customer-specified packing or marking may be subject to additional charges not otherwise included in the price of the Products.

7. WEIGHTS AND DIMENSIONS

Published or advertised weights and dimensions are estimates or approximations only and are not warranted.

8. PRICES

Prices and other information shown in any BMT publication (including product catalogues and brochures) are subject to change without notice and to confirmation by specific quotation. Such publications are not offers to sell and are maintained only as a source of general information. Prices do not include sales, use, excise, customs, value-added or similar taxes. Customer shall pay or reimburse BMT for all such taxes as may be applicable. Time and material services will be provided in accordance with BMT’s published service rates (including applicable overtime and travel expenses) in effect as of the date such services are provided, unless otherwise confirmed by BMT’s written quotation or order acknowledgment. Billable service time includes travel time to and from the job site and all time BMT’s representatives are available for work and waiting (whether on or off the job site) to perform the services.

9. CHANGES AND SUBSTITUTIONS

Customer-requested order changes, including those affecting the identity, scope, and delivery of the Products, must be documented in writing and are subject to BMT’s prior approval and adjustments in price, scheduling, and other affected terms and conditions. In any event, BMT reserves the right to reject any change that it deems unsafe, technically inadvisable, or inconsistent with established engineering or quality guidelines and standards, or incompatible with BMT’s design or manufacturing capabilities. BMT further reserves the right to substitute using the latest superseding revision or series or equivalent Product having comparable form, fit, and function.

10. RETURNS

All returns of Products will be pursuant to BMT’s instructions. Non-warranty returns of unused and resalable consumable Products for credit will be subject to a twenty-five percent (25%) restocking fee at BMT’s discretion and will be accepted only if the Consumable Products are returned within thirty (30) days of purchase, and the Consumable Products are in their original box with no markings (used or non-resalable Products cannot be returned to BMT). Customer shall pay for shipping charges for non-warranty consumable Product returns. Shipping terms of such non-warranty consumable Product returns shall be FOB destination. Consumable Products returned under warranty must be properly packed and shipped to BMT-specified locations. Shipping containers must be clearly marked per BMT’s instruction and shipped freight prepaid by Customer. BMT shall credit such shipping charges to Customer once warranty Consumable Products are received. Notwithstanding the foregoing, all sales of “Open Box” consumable Products are final and do not qualify for non-warranty return.

11. ORDER CANCELLATION

Cancellation by Customer prior to shipment is permitted only by written notice and upon payment to BMT of reasonable cancellation and restocking charges, including reimbursement for direct costs. Cancellation charges associated with orders for custom Products or Products specifically manufactured to Customer’s specification may equal the actual selling price of the Products. BMT has the right to cancel an order for cause at any time by written notice, and BMT will be entitled to cancellation and restocking charges as identified above.

12. FORCE MAJEUR

BMT shall not be liable for any loss, damage, or delay arising out of its failure (or that of its subcontractors) to perform hereunder due to causes beyond its reasonable control, including without limitation, acts of God, acts or omissions of Customer, acts of civil or military authority, fires, strikes, floods, epidemics, pandemics, quarantine restrictions, war, riots, acts of terrorism, delays in transportation, or transportation embargoes. In the event of such delay, BMT’s performance date(s) will be extended for such length of time as may be reasonably necessary to compensate for the delay.

13. GOVERNMENT CLAUSES AND CONTRACTS

Application of government contract regulations and clauses to the Products or the agreement evidenced by these terms and conditions are subject to the separate review and consent by an authorized representative at BMT’s headquarters. Products sold or licensed hereunder are not intended to be used, nor should they be used, in any nuclear-related application either as a “Basic Component” as defined under United States nuclear regulations or under similar nuclear laws and regulations of any other country or otherwise.

14. EXPORT CONTROL

Products and associated materials supplied or licensed hereunder may be subject to various export laws and regulations. It is the responsibility of the exporter to comply with all such laws and regulations. Notwithstanding any other provision herein to the contrary, in the event that U.S. or CDN local law requires export authorization for the export or re-export of any Product or associated technology, no delivery can be made until such export authorization is obtained, regardless of any otherwise promised delivery date. In the event that any required export authorization is denied, BMT shall be relieved of any further obligation relative to the sale and/or license and delivery of the Product(s) subject to such denial without liability of any kind relative to Customer or any other party. In any such event, BMT shall be entitled to compensation for any direct costs incurred. BMT shall not comply with boycott related requests except to the extent permitted by U.S. or CDN law and then only at BMT’s discretion.

15. DISPUTES

The parties will attempt in good faith promptly to resolve any dispute arising hereunder by negotiations between representatives of the parties who have authority to settle the dispute. If unsuccessful, the parties shall further attempt in good faith to settle the dispute by non-binding third-party mediation, with mediator fees and expenses apportioned equally to each side. Any dispute not so resolved by negotiation or mediation may then be submitted to a court of competent jurisdiction in accordance with the terms hereof. These procedures are the exclusive procedures for the resolution of all such disputes between the parties.

16. TERMINATION

BMT may terminate this Agreement in whole or in part without cause at any time and for any reason upon thirty (30) days prior written notice to the Customer. Upon notice of such termination, BMT shall immediately stop all shipments of the Products. Customer shall pay BMT for Products satisfactorily provided to the Customer.

BMT may terminate the Agreement in whole or in part for cause upon thirty (30) days written notice if the Customer fails to comply with any material term or condition of this Agreement.

17. GOVERNING LAW AND FORUM

This Agreement evidenced hereby and all disputes arising there under will be governed by and interpreted in accordance with the internal laws and will be subject to the exclusive jurisdiction of the courts of the state, province or other governmental jurisdiction in which BMT’s principal place of business resides specifically Mississauga, Ontario, Canada, but specifically excluding the provisions of the 1980 UN Convention on Contracts for the International Sales of Goods. Should any term or provision hereof be held wholly or partly invalid or unenforceable under applicable law, the remainder of this Agreement evidenced hereby will not be affected thereby.

18. ASSIGNMENT

This Agreement evidenced hereby may not be assigned by either party without the written consent of the other (which consent will not be unreasonably withheld). However, consent will not be required for internal transfers and assignments as between BMT and its subsidiaries or affiliates as part of a consolidation, merger or any other form of corporate reorganization.

19. CUSTOMER RESPONSIBILITIES

The Customer agrees to operate the consumable Product or use the radiofrequency generator (“Equipment”) in accordance with applicable laws and regulations within the Customer’s jurisdiction. This includes all relevant local, state, and federal laws and regulations.

The Customer agrees to operate, store, and maintain the consumable Products or the Equipment (if applicable) in accordance with its Instructions For Use.

Furthermore, any violation of this clause will automatically release BMT from any direct or indirect legal or statutory liability on the part of BMT.

Where and when applicable, the Customer agrees to maintain the Equipment and the consumable Products according to the preventative maintenance instructions and schedules.

Customer shall not resell or redistribute Equipment or consumable Products to entities or persons, except with BMT’s prior written consent.

Customer covenants not to use the Equipment in conjunction with any unauthorized products, items, consumables, disposables, equipment or parts. Customer specifically agrees that BMT shall not be liable for damages, personal injury or death if the Equipment is used in conjunction or with any unauthorized products, items, consumables, disposables, equipment or parts.

Customer specifically agrees that BMT shall not indemnify Customer for claims resulting in damages, personal injury or death if the Equipment is used in conjunction or with any unauthorized products, items, consumables, disposables, equipment or parts.

Customer specifically agrees and acknowledges that BMT shall not be liable for damages, personal injury or death if the Products are resterilized and re-used on end-users.

Customer specifically agrees and acknowledges that BMT shall not indemnify Customer for claims resulting in damages, personal injury or death if the Products are resterilized by a third-party and re-used on end-users.

Customer specifically agrees and acknowledges that BMT’s Product warranty is void if the Products are resterilized by a third-party and re-used on end-users.

Customer acknowledges that BMT consumables are designed for single use only.

If and when BMT maintains title to the Equipment, the Customer is financially responsible for the Equipment while it is located at the Customer. If the Equipment is misused, lost, stolen, damaged, or rendered inoperable in any manner, the Customer is responsible for its replacement or repair. The Customer will keep the Equipment free of charges or any security interests and will not pledge or grant a security interest of any kind in any Equipment to anyone.

The Customer agrees that if it joins an Independent Distribution Network (IDN), a Group Purchasing Organization (GPO), or any organization that groups them to other entities, then the Customer’s current contract with BMT shall be void and shall automatically terminate.

20. CONFIDENTIALITY

Customer and its designated representatives agree that any information regarding BMT’s operations, pricing, strategic plans, or other proprietary information to which Customer becomes privy will be considered confidential and held in confidence by Customer unless: (i) it is, or later becomes without any fault of the Customer, public domain information; (ii) it was known by Customer before disclosure; or (iii) is independently developed by Customer or independently learned from another source without an obligation of confidentiality. Customer shall not issue any press release or announcement or use BMT and BMC’s names, brands, or logos in promotional activity, or otherwise publicly announce or comment on this Agreement, without BMT’s prior written consent.

21. INSURANCE

At all times during the Term of the Agreement, BMT shall maintain, at its expense, insurance coverage for BMT’s activities. All insurance policies required shall be issued by licensed insurance companies. BMT shall provide to Customer, on request, an insurance certificate indicating the foregoing coverage.

22. LIMITED WARRANTY

1. Equipment and Foot Switch

BMT warrants the Equipment and Foot Switch against defects in materials and workmanship to the registered owner at the time of purchase. All components of the Equipment and Foot Switch are covered by the warranty as described below. Under this Limited Warranty, if any covered Equipment and Foot Switch is proved to be defective in materials or workmanship, BMT will replace or repair, in its absolute and sole discretion, any such Equipment and Foot Switch, less any charges to BMT for transportation and labor costs incidental to inspection, removal or restocking of the Equipment and Foot Switch. The length of the warranty is: (i) for the generator, one (1) year from shipment date, and (ii) for the Foot Switch, six (6) days from shipment date.

This Limited Warranty applies only to new, original factory delivered Equipment and Foot Switch that has been used for its normal and intended uses. BMT’s Limited Warranty shall not apply to BMT Equipment and Foot Switch which have been resterilized, repaired, altered, or modified in any way and shall not apply to BMT Equipment and Foot Switch which has been improperly stored or improperly installed, operated or maintained contrary to BMT’s instructions. This warranty does not apply to any Equipment and Foot Switch which has been subject to misuse, neglect, improper installation or that which has been altered, adjusted or tampered with by any person other than BMT authorized personnel.

If upon examination by authorized service personnel, it is determined that the malfunction is due to misuse or abuse, warranty provisions will not apply. An estimate of the cost of repair work will be given to the Customer prior to servicing and repairing the Equipment and Foot Switch.

The Customer is responsible for returning the defective Equipment and/or Foot Switch to BMT at 2645 Matheson Blvd. East, Mississauga, Ontario, Canada L4W 5S4 or to a specified address, if different, at Customer’s own expense. The Customer shall obtain a return authorization number before shipping the Equipment and/or Foot Switch back to BMT. BMT at its sole discretion can repair the unit or ship a new one. The Equipment and/or Foot Switch is to be shipped freight pre-paid by the Customer for both the warranty period and out of warranty. Under this Limited Warranty, if it is determined by BMT that the Equipment and/or Foot Switch is defective in materials or workmanship, BMT shall reimburse the Customer for such shipping costs incurred by the Customer.

If, upon examination, it is determined that the fault had been caused by misuse or abnormal conditions of operation, the repairs will be billed to the Customer as out-of-warranty repairs.

Disclaimer and Limitation of Liability

The Limited Warranty set forth herein is exclusive and in lieu of all other warranties, remedies, obligations and liabilities of BMT, expressed or implied, including the implied warranties of merchantability and fitness for a particular USE OR purpose. Any warranty other than set forth herein is expressly disclaimed.

The remedy set forth herein shall be the exclusive remedy for any warranty claim, and additional damages, including consequential damages OR DAMAGES FOR BUSINESS INTERRUPTION OR LOSS OF PROFIT, REVENUE, MATERIALS, ANTICIPATED SAVINGS, DATA, CONTRACT, GOODWILL OR THE LIKE (WHETHER DIRECT OR INDIRECT IN NATURE) OR FOR ANY OTHER FORM OF INCIDENTAL, OR INDIRECT DAMAGES OF ANY KIND, shall not be available. The Equipment and Foot Switch are being sold only for the purpose described herein, and such warranty only runs to the purchaser. In no event shall BMT be liable for any breach of warranty in any amount exceeding the purchase price of the Equipment and Foot Switch. BMT’S MAXIMUM CUMULATIVE LIABILITY RELATIVE TO ALL OTHER CLAIMS AND LIABILITIES, INCLUDING OBLIGATIONS UNDER ANY INDEMNITY, WHETHER OR NOT INSURED, WILL NOT EXCEED THE COST OF THE EQUIPMENT AND FOOT SWITCH GIVING RISE TO THE CLAIM OR LIABILITY. BMT DISCLAIMS ALL LIABILITY RELATIVE TO GRATUITOUS INFORMATION OR ASSISTANCE PROVIDED BY, BUT NOT REQUIRED OF BMT HEREUNDER. ANY ACTION AGAINST BMT MUST BE BROUGHT WITHIN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF ANY OTHER CONTRARY PROVISION HEREOF AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, AND FURTHER WILL EXTEND TO THE BENEFIT OF BMT’S VENDORS, APPOINTED DISTRIBUTORS AND OTHER AUTHORIZED RESELLERS AS THIRD-PARTY BENEFICIARIES. EACH PROVISION HEREOF WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY OR CONDITION OR EXCLUSION OF DAMAGES IS SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND IS TO BE ENFORCED AS SUCH.

In any claim or lawsuit for damages arising from alleged breach of warranty, breach of contract, negligence, product liability or any other legal or equitable theory, the Customer specifically agrees that BMT shall not be liable for damages or for loss of profits, whether from Customer or Customer’s customers. BMT’s liability shall be limited to the purchase cost to Customer of the specified goods sold by BMT to Customer which give rise to the claim for liability.

No agent, employee or representative of BMT has the authority to bind the Customer to any other warranty, affirmation or representation concerning the Equipment and Foot Switch.

This warranty is valid only to the original purchaser of Equipment and Foot Switch directly from a BMT authorized agent. The original purchaser cannot transfer the warranty.

Use of any Equipment and Foot Switch shall be deemed acceptance of the terms and conditions herein.

This Limited Warranty shall not apply to any products not manufactured by BMT. If applicable, the manufacturer’s warranty, liability, and insurance policies shall govern.

1. Consumables and Accessories

BMT warrants its Products against defects in materials and workmanship. BMT warrants that sterile Products will remain sterile for a period of time as shown on the label as long as the original package remains intact. Under this Limited Warranty, if any covered Product is proved to be defective in materials or workmanship, BMT will replace or repair, in its absolute and sole discretion, any such Product, . Under this Limited Warranty, if it is determined by BMT that the Product is defective in materials or workmanship, BMT shall reimburse the Customer for such shipping costs incurred by the Customer. The length of the warranty is: (i) for the sterile Products, the shelf life of the Product, and (ii) for the Accessory Products, ninety (90) days from shipment date.

This Limited Warranty applies only to new original factory delivered Products that have been used for their normal and intended uses. BMT’s Limited Warranty shall not apply to BMT Products which have been resterilized, repaired, altered, or modified in any way and shall not apply to BMT Products which have been improperly stored or improperly cleaned, installed, operated or maintained contrary to BMT’s instructions.

Disclaimer and Limitation of Liability

The Limited Warranty set forth herein is exclusive and in lieu of all other warranties, remedies, obligations and liabilities of BMT, expressed or implied, including the implied warranties of merchantability and fitness for a particular USE OR purpose. Any warranty other than set forth herein is expressly disclaimed.

The remedy set forth herein shall be the exclusive remedy for any warranty claim, and additional damages, including consequential damages OR DAMAGES FOR BUSINESS INTERRUPTION OR LOSS OF PROFIT, REVENUE, MATERIALS, ANTICIPATED SAVINGS, DATA, CONTRACT, GOODWILL OR THE LIKE (WHETHER DIRECT OR INDIRECT IN NATURE) OR FOR ANY OTHER FORM OF INCIDENTAL, OR INDIRECT DAMAGES OF ANY KIND, shall not be available. BMT’S MAXIMUM CUMULATIVE LIABILITY RELATIVE TO ALL OTHER CLAIMS AND LIABILITIES, INCLUDING OBLIGATIONS UNDER ANY INDEMNITY, WHETHER OR NOT INSURED, WILL NOT EXCEED THE COST OF THE PRODUCT(S) GIVING RISE TO THE CLAIM OR LIABILITY. BMT DISCLAIMS ALL LIABILITY RELATIVE TO GRATUITOUS INFORMATION OR ASSISTANCE PROVIDED BY, BUT NOT REQUIRED OF BMT HEREUNDER. ANY ACTION AGAINST BMT MUST BE BROUGHT WITHIN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF ANY OTHER CONTRARY PROVISION HEREOF AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, AND FURTHER WILL EXTEND TO THE BENEFIT OF BMT’S VENDORS, APPOINTED DISTRIBUTORS AND OTHER AUTHORIZED RESELLERS AS THIRD-PARTY BENEFICIARIES. EACH PROVISION HEREOF WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY OR CONDITION OR EXCLUSION OF DAMAGES IS SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND IS TO BE ENFORCED AS SUCH.

In any claim or lawsuit for damages arising from alleged breach of warranty, breach of contract, negligence, product liability or any other legal or equitable theory, the Customer specifically agrees that BMT shall not be liable for damages or for loss of profits, whether from Customer or Customer’s customers. BMT’s liability shall be limited to the purchase cost to Customer of the specified goods sold by BMT to Customer which give rise to the claim for liability.

No agent, employee or representative of BMT has the authority to bind the Customer to any other warranty, affirmation or representation concerning the Product.

This warranty is valid only to the original purchaser of BMT Products directly from a BMT authorized agent. The original purchaser cannot transfer the warranty.

Use of any BMT Product shall be deemed acceptance of the terms and conditions herein.

This Limited Warranty shall not apply to any products not manufactured by BMT. If applicable, the manufacturer’s warranty, liability, and insurance policies shall govern