Terms and Conditions of Sale

  1. Applicability. These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of goods and/or equipment (“Goods”) and services (other than maintenance services) (“Services”) by AVERTIX MEDICAL, INC., Seller (“AVERTIX”) to the buyer identified on Seller’s Sales Order (“Buyer”). Unless the parties have executed a separate written agreement, these terms and conditions apply to the sale of products by Avertix. Because of differences in the physical condition of a patient, no representation or warranty is made that the body will not react adversely to the implantation or use of the implantable products and accessories, or that such products and accessories are suitable for treatment of the patient.
    Except for the limited written warranty, which may be enclosed within the product packaging, AVERTIX disclaims any representation or warranty of any kind, express or implied, whether as to merchantability, fitness for a particular purpose, or any other matter. The remedies set forth in such written warranty are the exclusive remedies available.
    Neither AVERTIX, nor any of its affiliates, agents, employees or representatives shall be liable for any loss, damage, or injury of any nature, whether direct, incidental or consequential, in connection with or resulting from, the use of products whether the claim is based on warranty, contract, tort, or otherwise.
  2. Delivery of Goods. All orders are subject to acceptance by AVERTIX. Payment is due within 30 days from date of invoice; F.O.B., Shipper.
    The Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order. Seller shall not be liable for any delays, loss or damage in transit. Unless otherwise agreed in writing by the parties, (i) Seller shall deliver the Goods to the location specified in the Sales Order (the “Destination Point”) using FedEx Ground delivery services or any other carrier selected by Seller, and (ii) Buyer shall be responsible for shipping costs associated with the delivery of the Goods and shall either pay the applicable delivery service or reimburse Seller, at Seller’s option, for same. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Destination Point. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order. If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered to the Destination Point, or if Seller is unable to deliver the Goods to the Destination Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) the Goods shall be deemed to have been delivered; and (ii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). Seller shall make delivery in accordance with the terms on the face of the Sales Order.
    AVERTIX may provide purchaser with the use of interrogation technology (the “Programmer”) for use when a patient requires device interrogation. The Programmer will remain the property of AVERTIX. AVERTIX may replace the Programmer at any time and may remove the Programmer upon giving the customer thirty (30) days’ notice thereof. Customer will, (i) store the Programmer in a secure location, and (ii) limit the use and access of the Programmer to authorized AVERTIX and customer’s employees. Customer will defend, indemnify and hold AVERTIX and its affiliates, employees, agents and representatives harmless from any unauthorized access or use of the Programmer.
  3. Return of Purchased Goods. AVERTIX may, at its sole option, accept the return of purchased goods for refund or replacement credit only. Purchased goods will be accepted for replacement credit only with the prior written authorization of AVERTIX. If AVERTIX chooses to accept the return of such goods, there will be a 25% restocking charge on each item.
  4. Payment Terms. Payments not made within the terms on the invoice are subject to late payment charges, and overdue payments will be charged at 1.5% interest per month from the due date.
  5. Price. Buyer shall purchase the Goods and Services from Seller at the prices (the “Prices”) set forth in the Sales Order. The Prices are net of discounts provided at the time of purchase. Buyer must: (a) claim the value of all discounts in Buyer’s fiscal year earned or the immediately following fiscal year; (b) properly report and appropriately reflect discounts in Medicare/Medicaid cost reports and all claims for payment filed with third party payors as required by law or contract; and (c) provide agents of the United States or a state agency with access to all information from Seller concerning discounts upon request. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personal or real property, or other assets.
  6. Acknowledgements and Covenants. Buyer acknowledges and agrees that neither Buyer nor any physician, nurse or other Health Care Professional (as defined by the AdvaMed Code of Ethics on Interactions with Health Care Professionals) affiliated with Buyer has or will receive any reimbursement or other payment for the Goods or Services provided hereunder from any governmental or third party payor and that none of Medicare, Medicaid, any of their state equivalents or any other governmental entity is or will be providing separate reimbursement or otherwise making separate payment for any of the Goods or Services. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all licenses, permissions, authorizations, consents, and permits required to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
  7. Product Traceability. Buyer is responsible to maintain product traceability for each individual Good delivered by AVERTIX. Buyer will comply with any product recalls initiated by AVERTIX and will notify AVERTIX of any customer complaints on the Goods.
  8. Indemnification. Buyer agrees to hold AVERTIX and its employees, officers, directors, agents, successors and assigns harmless from and against any and all losses, claims and damages (including reasonable fees and expenses of counsel), as they are incurred, which arise out of or are related to any claim by a third party of personal injury or other loss to the third party caused by alleged negligence on the part of Buyer, customers or their employees, agents or assigns. This provision shall survive expiration or termination of this Agreement.
  9. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
  10. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay by either party in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege by either party hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege of such party.
  11. Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, research, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, may be used by Buyer solely for the performance of this Agreement and may not be disclosed or copied by Buyer unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
  12. Governing Law and Jurisdiction. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of New Jersey without giving effect to any choice or conflict of law provision or rule (whether of the State of New Jersey or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New Jersey. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of New Jersey in each case located in the of County of Monmouth and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
  13. Force Majeure. The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
  14. Miscellaneous. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidential Information, Governing Law, Submission to Jurisdiction and Miscellaneous. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.
    The Buyer agrees to be bound by these Terms and Conditions of Sale when purchasing products from AVERTIX