Terms and Conditions of Sale
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
