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Definitions; Terms. "Accuray Products" means all products manufactured by Accuray Incorporated ("Accuray") including, but not limited to, Accuray-produced hardware, software, and firmware. "Accuray Services" means services of Accuray related to the warranty provided herein, but shall not include any services relating to a Periodic Maintenance and Service Contract between the Customer and Accuray, which shall be governed by the terms of such separate Periodic Maintenance and Service Contract. "Specifications" means the user manuals, reference guides, and configuration documentation provided by Accuray to the Customer in writing, as updated from time to time by Accuray. All Accuray Products and Accuray Services (collectively, "Accuray Deliverables") are furnished only on the terms and conditions stated herein. Any different or additional terms contained in the Customer's purchase order, or similar documents shall not bind Accuray.
Terms of Payment.
1. Purchase Price; Payment Schedule. The Purchase Prices for the Accuray Deliverables are as set forth in the Quote to which these terms are attached (the Quote, together with these Terms and Conditions of Sale, the "Agreement"). Purchase Prices are valid only for the item on which such prices are specified. The Customer shall pay for the Accuray Deliverables in accordance with the payment schedule set forth above and the terms of this Section 2. If the delivery of an Accuray Deliverable is delayed by the Customer for reasons not attributable to Accuray, the Customer shall pay Accuray's reasonable cost to store such deliverable (including, but not limited to, insurance and demurrage charges). Accuray's performance hereunder is subject to Accuray's approval of the Customer's credit.
2. Invoices; Late Payments. If the Customer's internal payment processing procedure requires the Customer to receive an invoice before paying amounts due hereunder, the Customer shall request such invoice sufficiently in advance to make the payment in accordance with the payment schedule set forth above. Past due balances shall incur a 2% late fee and bear interest at the rate of 1% per month or, if lower, the maximum amount permitted by applicable law. Accuray may suspend its performance under this Agreement if payments are not made in accordance with the payment schedule set forth above. the Customer shall pay Accuray's reasonable costs of collecting amounts due hereunder that are more than 30 days past due.
3. Security Interest. Until the Purchase Price is paid in full to Accuray, Accuray shall have a security interest in all Accuray Deliverables and proceeds generated therefrom, for the purpose of securing payment for such deliverables. The Customer authorizes Accuray to file, and shall execute upon Accuray's request, documents and related filings and recordings thereof as necessary for Accuray to perfect the foregoing security interest under the Uniform Commercial Code or any similar domestic or foreign laws. The Customer shall maintain the Accuray Deliverables in good condition and keep such deliverables free of any liens until payment is made in full. All security interests shall be released once Accuray has received all payments owed hereunder for all Accuray Deliverables.
4. Taxes. All payments from the Customer to Accuray under this Agreement are exclusive of taxes (e.g. sales, use, VAT, rental or similar taxes), duties, license or other fees. If the use or possession of the Accuray Deliverables by the Customer pursuant to this Agreement results in the imposition of any taxes, duties, or other fees, or requires the issuance of any permits or licenses, such taxes, duties or fees (other than taxes upon Accuray's net income) shall be paid, and such permits and licenses applied for and maintained, by the Customer. Any such sales taxes (a) due with respect to payments made on or before the date of delivery, shall be due on the delivery date and (b) due with respect to payments made following the date of delivery, shall be due together with payment of the underlying amount.
5. Method of Payment. All payments by the Customer shall be made by wire transfer or check.
Shipment. the Customer shall inspect arriving shipments and report any visible damage or shortages to Accuray within 48 hours after delivery and any concealed damage within 10 days after delivery. If the Customer does not report damage in accordance with the previous sentence, the Customer shall bear the risk of loss with respect to such damage. For shipments outside the United States, the Customer shall procure all necessary permits and licenses for such shipments and for compliance with any government regulations applicable at the destination.
1. Local Requirements. the Customer shall be responsible for obtaining all permits and for meeting all requirements relating to state and local codes, registration, regulations and ordinances applicable to the Customer's use of the Accuray Deliverables. Accuray has no responsibility for compliance by the Accuray Deliverables with such requirements.
Warranty.
1. Warranty. All purchased consumables, tools, spare parts, and related services outside of covered conditions are under a 90-day warranty, commencing upon time of purchase.
2. Warranty Remedy. If the Customer notifies Accuray during the Warranty Period of a defect in an Accuray Deliverable that causes such deliverable to fail to conform to the foregoing warranty, Accuray shall at its option either repair or replace the defective deliverable. This Section 4.2 sets forth the Customer's sole and exclusive remedies with respect to a breach of the warranty specified in Section 4.1.
3. Conservation of Materials. In the interest of conservation of scarce materials, and of efficient utilization of high value parts, the Accuray Deliverables may contain re-manufactured parts. Such parts are subject to the same standards of quality control applied to other parts and are covered by the warranty in this Section 4.
4. Scope of Warranty. The warranty services described in this Section 4 shall not apply to defects or non-conformities caused by: (i) abuse, accident, misuse or neglect of an Accuray Deliverable; (ii) modification of an Accuray Deliverable (including any software therein) without Accuray's express written authorization; (iii) use in an operating environment other than the operating environment described in the Specifications; or (iv) any component of an Accuray Deliverable that has been superseded by a update made available to the Customer without charge by Accuray. In-warranty repair or replaced parts are warranted only for the unexpired portion of the original Warranty Period.
5. OTHER WARRANTIES. EXCEPT AS SET FORTH IN THIS SECTION 4, ACCURAY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, AND OF FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Damages. IN NO EVENT SHALL ACCURAY BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCURAY'S AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE PAYMENT RECEIVED BY ACCURAY FOR THE ACCURAY DELIVERABLE RESULTING IN THE LOSS OR DAMAGE CLAIMED.
Cancellations. All payments made hereunder are non-refundable and no order accepted by Accuray may be canceled by the Customer without Accuray's prior written consent. If the Customer requests cancellation of any order and Accuray consents to such request, the Customer agrees to pay Accuray a charge determined by Accuray to cover the reasonable costs of order processing, handling, re-testing, shipping, storage, repackaging and similar activities incurred by Accuray in connection with such cancellation.
Miscellaneous
1. Dispute Resolution. Any dispute between Accuray and the Customer arising from or related to this Agreement, excluding disputes regarding payment or the Customer's unauthorized use or disclosure of Accuray Confidential Information or intellectual property, shall be settled as follows. The party initiating the dispute shall provide written notification to the other party identifying in detail the nature of the dispute. The other party shall respond in writing to the notification within 30 calendar days from the date of receipt of the notification. The party initiating the dispute shall have an additional 30 calendar days after the receipt of the response to either accept the resolution offered by the other party or escalate the matter. If the dispute is not resolved within the foregoing 30-day period, the parties shall escalate the claim to the Chief Executive Officer of Accuray and the Chief Executive Officer of the Customer. Each shall negotiate in good faith and use his or her best efforts to resolve such dispute or claim. If the dispute is not resolved within 15 calendar days after escalation to the Chief Executive Officers as described above, then either party may pursue resolution by any means available at law or equity.
2. Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for the payment of money) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strike, lockout, riot, war, fire, acts of God, accident, failure or breakdown of components necessary for order completion; subcontractor or supplier caused delays; curtailment of or failure to obtain sufficient electrical or other energy, raw materials or supplies; or compliance with any law, regulation or order, whether valid or invalid.
3. Governing Law. The rights and obligations of the parties under this Agreement shall be governed in all respects by the laws of the the Customer without regard to conflicts of laws principles that would require the application of the laws of any other jurisdiction. No action, regardless of form, arising out of or related to any Accuray Deliverable may be brought by the Customer more than 1 year after the Customer has or should have become aware of the cause of action.
4. Waiver. The waiver of any breach or default of any provision of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent breach or default.
5. Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
6. Amendments. Any amendment or modification of this Agreement must be made in writing and signed by duly authorized representatives of each party. For Accuray, a duly authorized representative must be any of the following: CEO, CFO, General Counsel or Associate General Counsel.
7. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
8. Entire Agreement. This Agreement contains the entire agreement of the parties hereto with respect to the subject matter hereof, and supersedes all prior understandings, representations and warranties, written and oral. In the event of a conflict or inconsistency between the terms stated in a purchase order or other similar document and this Agreement, the terms of this Agreement shall govern.

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