Terms and Conditions of Sale
ACCEPTANCE: THE ACCEPTANCE OF CUSTOMER’S ORDER (THE “ORDER”) IS EXPRESSLY MADE CONDITIONAL ON CUSTOMER’S ASSENT TO THE TERMS AND CONDITIONS SET FORTH HEREIN, AND ARTIO MEDICAL, INC. (“ARTIO”) AGREES TO FURNISH THE MATERIALS, GOODS AND PRODUCTS (“PRODUCTS”) AND SERVICES COVERED THEREBY ONLY UPON THESE TERMS AND CONDITIONS OF SALE (THE “TERMS”). Any terms and conditions that may be contained in any Order or other form of Customer communication shall be absolutely without force and effect, regardless of when received by ARTIO. No waiver, alteration, or modification of any of the provisions hereof shall be binding on ARTIO unless made in writing and signed by an authorized representative of ARTIO. ARTIO reserves the right to accept or reject any Order in whole or in part. Possession of a product catalog by Customer does not constitute an offer to sell. ARTIO reserves the right to change these Terms at any time without notice. Any Orders placed after these Terms are changed will be subject to the amended Terms.
CANCELLATION: Cancellation or modification of Orders are subject to ARTIO’s prior written consent in each instance.
PRICE: Prices quoted in ARTIO’s price list are subject to change without notice at any time and from time to time. Products are invoiced at prices prevailing on the date of shipment. Prices do not include any applicable taxes, tariffs, duties, fees, or charges of any type imposed by any governmental authority, whether federal, state, local or foreign, in connection with the Order.
CREDIT TERMS: If Customer qualifies, ARTIO may extend credit to Customer after approval of credit application, in which case payment terms are specified in ARTIO’s invoice. If at any time Customer’s financial condition becomes unsatisfactory to ARTIO, in ARTIO’s sole discretion, or if Customer fails to make any payment when due, in addition to any other rights ARTIO may have, ARTIO may defer or decline to make any shipments hereunder or may condition any such shipments on receipt of satisfactory security or cash payments in advance.
PAYMENT/TAXES: If ARTIO extends credit to Customer for entire amount of the Order, payment terms shall be net thirty (30) calendar days from the date of ARTIO’s invoice. All payments shall be made in U.S. dollars by wire, ACH or check. Returned checks will be subject to a $50 fee. Any invoiced amount not paid when due may, in ARTIO’s sole discretion, shall accrue interest at a rate equal to the lesser of one-and- one-half percent (1.5%) per month or the maximum rate permitted by applicable law, from due date until paid, plus ARTIO’s reasonable costs of collection. Customer shall promptly notify ARTIO in writing of any disputed invoice and shall not make any discounts or setoffs against any invoices unless approved in advance by ARTIO. In addition, ARTIO reserves all other rights granted to a seller under the Uniform Commercial Code for Customer’s failure to pay for Product(s) or any other breach by Customer of these Terms. If applicable, a separate charge for any such taxes, tariffs, duties, fees or charges will be shown on ARTIO’s invoice, and Customer is responsible for, and agrees to, their payment in full (unless when the Order is submitted Customer provides ARTIO with an exemption certificate or other documents satisfactory to ARTIO and acceptable to taxing or custom authorities). Customer shall reimburse ARTIO the amount of any such taxes, tariffs, duties, fees or charges that ARTIO is required to prepay.
SECURITY INTEREST: ARTIO reserves a purchase money security interest in each Product delivered hereunder and in proceeds from the sale, exchange, collection, or disposition thereof, until Customer has made payment in full for such Product. Customer shall, upon request by ARTIO, provide all information and signatures required by ARTIO to perfect such security interest. ARTIO reserves all rights granted to a secured creditor under the Uniform Commercial Code, including the right to repossess upon default by Customer.
SHIPPING: All Products will be shipped via ARTIO designated carrier by two-day delivery unless over-night delivery is requested by Customer. ARTIO will list such costs associated with shipping as a separate line item on the applicable invoice. Customer may provide ARTIO with Customer’s carrier account number for direct billing purposes.
RESTRICTIONS: Federal law restricts ARTIO Products to sale by or on order of a physician. Customer acknowledges familiarity with, and agrees to comply with, the Safe Medical Devices Act of 1990, as amended, including, without limitation, its reporting requirements imposed on device users.
DELIVERY/EXPORT/CONTROL: Customer is advised that quoted ship dates are based on estimates at the time of quotation and that ARTIO will devote its commercially reasonable efforts to meeting such schedules. However, ARTIO assumes no liability for additional costs or damages resulting from late deliveries. In addition, on Orders for non-stock Products, or special Orders, or where manufacturing processes make it difficult to provide the exact quantity specified, ARTIO reserves the right to under-ship or over-ship and invoice Customer accordingly. In no event shall Customer take any action(s) contrary to the United States export laws and regulations in effect as of the date of shipment, including without limitation, diversion of Product(s).
DELIVERY/RISK OF LOSS: All Product(s) will be shipped FCA carrier (Incoterms® 2020) ARTIO’s shipping point and will be packed in ARTIO’s standard commercial shipping packages. Title and risk of loss or damage shall pass to the Customer when ARTIO has delivered the Products to the carrier for shipment to Customer. ARTIO shall not be liable for any Product(s) lost, damaged, or destroyed while in transit. Customer will inspect all shipments of Products promptly upon delivery. All damage shall be noted on the freight bill and reported to the carrier.
WARRANTY: Unless a more specific limited warranty is expressly granted in the Instructions for Use, or Operating Manual (if applicable), published by ARTIO for the Product (“Product Documentation”) (in which case such warranty shall govern), ARTIO warrants that, subject to the exceptions stated herein, each Product will substantially conform to the published specifications contained in the Product Documentation and will be free from defects in materials and workmanship, from the date of purchase until the expiration date printed on the Product’s packaging or, if no such expiration date applies, from one year from the date of purchase (as applicable, the “Warranty Period”). The foregoing warranty will be void and of no effect if the Product is: (a) stored, installed, maintained, operated or used in any manner inconsistent with the Product Documentation; (b) subjected to abuse, misuse, neglect, mishandling, accident or unusual physical or Product Documentation; (c) repaired, altered or modified other than by ARTIO authorized service personnel. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ARTIO MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL IMPLIED WARRANTIES ARE HEREBY DISCLAIMED AND EXCLUDED. ARTIO’S SOLE OBLIGATION AND CUSTOMER’S EXCLUSIVE REMEDY FOR BREACH OF THE FOREGOING WARRANTY IS, AT ARTIO’S OPTION, TO REPAIR OR REPLACE THE NON-CONFORMING OR DEFECTIVE PRODUCT OR TO CREDIT CUSTOMER’S ACCOUNT THE PURCHASE PRICE PAID BY CUSTOMER FOR THE NON-CONFORMING OR DEFECTIVE PRODUCT.RETURNED GOODS: Unused Product (with packaging still sealed) may be returned within ten (10) calendar days of receipt of Products. Any credit or refund for returned Products are conditioned upon ARTIO’s inspection and approval of the Products upon receipt. If ARTIO determines, at its sole discretion, that any of the Products are ineligible for return, Customer will not receive a credit and/or refund.
INDEMNIFICATION: To the fullest extent permitted by law, Customer agrees to defend, indemnify, and hold harmless ARTIO, its subsidiaries, affiliates, parents, partners, their successors and assigns, and each of their past and present directors, officers, employees and agents (collectively referred to herein as “Indemnitees”), jointly and severally, from and against any and all losses, damages, liabilities, demands, claims, actions, judgments, charges, court costs, and legal or other expenses, including, without limitation, reasonable attorney’s fees and expenses, which Indemnitees may sustain, incur, or become liable for in defending or compromising any suit, action, or other proceeding arising out of, related to, or in any way connected with Customer’s purchase, sale, or use of Product(s), including, but not limited to, Customer’s (i) misuse of such Product(s), (ii) failure to maintain a valid license or certification with the applicable entity that allows Customer to purchase, sell, or use such Product(s) or practice medicine, (iii) failure to charge applicable sales, use, or equivalent taxes when selling such Product(s), (iv) or any other acts or omissions, willful misconduct or negligent misconduct, whether active or passive, on the part of Customer; provided, however, Customer shall have no indemnity obligations under this paragraph for any losses, damages, liabilities, demands, claims, actions, judgments, charges, court costs, and legal or other expenses caused solely by the gross negligence or willful misconduct of an Indemnitee.
LIMITATION OF LIABILITY: IN NO EVENT WILL ARTIO BE LIABLE FOR SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, EVEN IF ARTIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ARTIO’S TOTAL LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO ANY PRODUCT SHALL BE LIMITED TO GENERAL MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL PURCHASE PRICE FOR THE PRODUCT GIVING RISE TO THE CLAIM, REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT AGAINST ARTIO. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL ARTIO BE LIABLE FOR ANY LOSS OR DAMAGE RESULTING FROM THE REUSE, REPROCESSING OR RESTERILIZATION OF ANY PRODUCT, OR OTHERWISE RESULTING FROM THE USE OF ANY PRODUCT IN VIOLATION OF SUCH PRODUCTS LABELING OR ARTIO’S INSTRUCTIONS.
DESIGN CHANGES: ARTIO reserves the right to alter, modify, or redesign its Products without any obligation to replace previous shipments to Customer.
NO LICENSE/INTELLECTUAL PROPERTY: The sale of Product(s) shall not confer upon Customer any license to manufacture under any patents or proprietary rights owned or controlled by ARTIO, its subsidiaries, affiliates, or suppliers; it being specifically understood and agreed that all such rights are reserved to ARTIO, its subsidiaries, affiliates, or suppliers. No transfer of any right, interest, ownership or any intellectual property will occur under these Terms. ARTIO retains all interest in modifications, improvements, upgrades, derivative works and all other intellectual property rights in connection with the Products and Customer shall have no rights or interest in any ARTIO intellectual property, including, but not limited to, copyrights, trade secrets, know-how, patents, websites, internet domain name registrations, trademarks or trade names, applied for or owned, used or claimed now or in the future by ARTIO, its affiliates or licensors.
SAFE MEDICAL DEVICE ACT: If Customer files with the U.S. Food and Drug Administration (“FDA”) an FDA form 3500A or a similar form of medical device report under the federal Safe Medical Device Act, regarding the Products or any part of the Products, then Customer shall simultaneously furnish to ARTIO a copy of the form or report. Customer shall maintain adequate tracking for the Products to enable ARTIO to meet the FDA requirements applicable in tracking the medical devices. If ARTIO recalls the Product(s) or any part of the Product(s), Customer shall cooperate fully with ARTIO in implementing the recall, including but not limited to by returning the Product(s) to ARTIO to the extend ARTIO requests.
DISCOUNT AND REPORTING OBLIGATIONS: In accordance with the discount provisions of the federal anti-kickback statute, 42 U.S.C. § 1320a- 7b(b) and the discount safe harbor regulations at 42 C.F.R. § 1001.952(h), 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 ARTIO.
FRAUD AND ABUSE: Customer represents that it has never been debarred, excluded or suspended by the Office of Inspector General of the Department of Health and Human Services; otherwise deemed ineligible to participate in federal healthcare or procurement programs, or to the extent applicable, state healthcare or procurement programs; or convicted of a criminal offense regarding health care reimbursement.
FORCE MAJEURE: ARTIO shall not be liable for any delays in making delivery where occasioned by strikes, differences with workers, or any causes beyond the control of ARTIO, including but not limited to, fires, floods, accidents, pandemics, epidemics, action of any governmental authority, war, insurrection or riots, or shortages of labor, energy, raw materials, component products, failure of normal sources of supply, inability to obtain raw materials, production facilities, or transportation and any similar or different contingency that would make performance or timely performance commercially impractical. If any of these acts or events of force majeure exceed 60 calendar days, the sole remedy of either ARTIO or Customer, shall be cancellation of such applicable outstanding Order(s) upon written notification. ARTIO will not be liable for damages resulting from such cancellation.
MISCELLANEOUS; Applicable Law and Venue: Customer acknowledges that is has not been induced to purchase any Product from ARTIO by any representation or warranty not expressly set forth herein. This document constitutes the entire agreement of the parties and supersedes all existing agreements and all other oral or written communication between them concerning its subject matter. These Terms contained herein may be added to, modified, superseded, or otherwise altered except by a written document signed by an authorized representative of ARTIO. The paragraph headings contained herein are intended for convenience of reference only and shall not affect the interpretation of any provision. If any provision of this document shall be held to be invalid, illegal, or unenforceable, the validity, legality, or enforceability of the remaining provisions shall in no way be affected or impaired. These Terms shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to conflicts of laws principles thereof. The United Nations Convention on Contracts for the International Sale of Goods will not, for any purpose, govern or apply to the sale of the Products hereunder. Any legal action relating to the Products shall be commenced and maintained exclusively before the Kansas state court of record in Johnson County, Kansas or the United States District Court for the District of Kansas. By purchasing the Products, Customer hereby submits to the jurisdiction of those courts and waives any right to challenge or otherwise raise questions of personal jurisdiction or venue in any action commenced or maintained therein. Each party waives any right to jury trial in connection with any legal action in any way arising out of or related to these Terms.