Inquis Medical, Inc. Standard Terms and Conditions of Sale
1. Terms and Conditions of Supply of Products
1.1 Terms and Conditions. All sales of products (“Products”) by Inquis Medical, Inc. (“Seller”) to the Buyer (“Buyer”) are expressly conditioned on Buyer’s acceptance of the terms and conditions set forth herein (“Terms”). Seller and Buyer are individually referred to as a “Party” and collectively as the “Parties”.
1.2 Orders. All orders for Products must be initiated by written purchase orders to Seller. No written or verbal order by Buyer will be binding on Seller until accepted by Seller in writing. All purchase orders will be governed by these Terms. No order shall be binding upon Seller until accepted by Seller in writing, and Seller shall have no liability to Buyer with respect to purchase orders that are not accepted. Buyer shall submit purchase orders to Seller in accordance with Seller’s then current lead times.
1.3 Delivery. Seller will use reasonable efforts to deliver Products at the times specified in Seller’s acceptance of Buyer’s purchase order; provided, however, that all delivery dates are estimates only and deliveries may be in installments.
1.4 Shipping. All Products purchased hereunder will be shipped F.O.B. Origin, at which time title and risk of loss shall pass to Buyer. All transportation, insurance, and other costs of shipping and delivery of the Products to the delivery site shall be borne by Buyer. Buyer shall also bear all applicable taxes, duties, and similar charges that may be assessed against the Products after delivery.
1.5 Acceptance; Return Authorizations. All Products shall be deemed irrevocably accepted by Buyer upon receipt. Notwithstanding the foregoing, Buyer may submit a warranty claim for Products that do not conform to the limited Product warranty set forth in Section 6.1 by
requesting a return authorization for the Products from Seller by mail or email with an explanation of the alleged defect. Within ten (10) days of Buyer’s receipt of such a return authorization, Buyer shall return the affected Product parts or components, as applicable, to Seller (freight prepaid by Buyer). The Party shipping Products pursuant to this Section 1.5 shall bear the entire risk of loss for Products during shipment. Seller shall reimburse Buyer for any costs of transportation incurred by Buyer in connection with the proper return to Seller of defective or non-conforming Products. In the case of improperly
returned Products, Buyer shall pay transportation charges incurred in connection with such return. The Parties acknowledge and agree that Seller’s reasonable determination as to whether Products are defective or non-conforming shall be binding on the Parties Except as provided in this Section 1.5, all Products delivered under these Terms are non-returnable.
1.6 No Cancellations; No Refunds. Once accepted by Seller, a purchase order submitted by Buyer is final and shall be a binding agreement between Seller and Buyer for the sale of the Products described in the purchase order. ONCE A PURCHASE ORDER BECOMES FINAL AND BINDING AS SET FORTH IN THIS SECTION 1.6, BUYER MAY NOT CANCEL SUCH PURCHASE ORDER WITHOUT SELLER’S PRIOR WRITTEN CONSENT. EXCEPT AS EXPLICITLY SET FORTH HEREIN, NO REFUNDS WILL BE ISSUED BY SELLER TO BUYER FOR ANY AMOUNTS PAID PURSUANT TO THESE TERMS.
1.7 Substitutions and Modifications. Seller shall have the right to make substitutions and modifications in the specifications of the Products provided that such substitutions or modifications will not materially affect overall Product performance.
2. Price and Payment
2.1 Price. Prices for Products shall be Seller’s standard list price unless otherwise designated by Seller (“Purchase Price”). Seller has the right to revise the Purchase Price for Products upon notice to Buyer through written or electronic communication. Price adjustments will apply to all purchase orders received after the effective date of the price revision.
2.2 Payment Terms. Buyer shall pay all invoices within thirty (30) days after the date of Seller’s invoice. All payments shall be made in U.S. dollars. Payment methods accepted by the Seller are noted on the invoice issued to the Buyer. If Seller undertakes collection or enforcement efforts, Buyer shall be liable for all costs thereof, including attorneys’ fees.
2.3 Late Payments. Overdue payments shall be subject to a late fee charge of one and one-half percent (1.5%) per month, calculated on the number of days such payment is delinquent, or, if lower, the maximum charge permitted under applicable law. This Section 2.3 shall in no way limit any other remedies available to the Seller.
2.4 Taxes. Buyer shall, in addition to the Purchase Price, pay all sales and other taxes, federal, state, or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by these Terms, unless Buyer provides a certification of tax exemption to Seller. Without limiting the foregoing, Buyer shall promptly pay to Seller an amount equal to any such items actually paid, or required to be collected or paid, by Seller.
2.5 Security Interest. Seller reserves a purchase money security interest in Products sold and the proceeds thereof in the amount of the Purchase Price. In the event of default by Buyer in any of its payment obligations to Seller, Seller will have the right to repossess the Products sold hereunder without any liability to Buyer. Such security interest will be satisfied by payment in full. A copy of the invoice may be filed with appropriate authorities at any time as a financing statement and/or chattel mortgage to perfect Seller’s security interest. On request of Seller, Buyer will cooperate with and deliver to Seller such instruments and assurances that Seller may request to perfect Seller’s security interest including, but not limited to, executing UCC- 1 Financing Statements.
3. Use
3.1 Use of the Products. Buyer agrees to use the Products only in accordance with applicable laws and the instructions and user manual provided by Seller (“Product Documentation”). Buyer shall also procure all applicable permits and licenses necessary for the operation and use of the Products. Buyer shall not, without Seller’s written consent, make any alterations, additions, or improvements to the Products, and all right, title, and interest to all such alterations, additions, or improvements are hereby assigned by Buyer to Seller. Buyer shall use the Products solely in the conduct of its business and
in a careful and proper manner.
3.2 Supplies. Buyer acknowledges that proper operation of the Products require use of supplies specifically engineered to meet Seller’s compatibility, quality and performance standards, and accordingly agrees to use supplies provided by or expressly authorized by Seller. Purchaser’s use of supplies not provided or expressly authorized by Seller will void all warranties and extended warranties on the Products.
4. Reporting
Buyer agrees to comply with all applicable laws, rules and regulations in its use of the Products and to provide information and assistance to Seller and any regulatory authorities as is reasonably necessary to enable Seller to comply with any requirements imposed on Seller as a medical device manufacturer under applicable contracts, laws, rules and regulations. Such requirements may include, without limitation, requirements relating to
product liability, to product recalls and to medical device reporting requirements regarding adverse events, deaths and serious injuries related to the Products. Buyer shall inform Seller within seventy-two (72) hours if Buyer becomes aware of a reportable event concerning the safety of Product, including, without limitation, the use of a Product that may have caused or contributed to death or to any injury that results in permanent impairment of a bodily function.
5. Confidentiality
“Confidential Information” shall include any information disclosed by Seller, or its agents, to Buyer, and shall specifically include any patents and inventions, other intellectual property, the Purchase Price and any revisions by Seller thereto, sales, marketing, or customer lists. Confidential Information does not include any information that is publicly available or becomes publicly available through no breach of Buyer or its employees or agents. Buyer shall maintain the Confidential Information in confidence and take all reasonable precautions to protect such information (including, without
limitation, all precautions the Buyer employs with respect to its most confidential matters).
6. Warranty
6.1 Limited Warranty . Seller warrants that, at the time of shipment, the Products shipped to Buyer hereunder (i) shall be free of material defects in materials and workmanship and (ii) shall materially conform to then-current published Product specifications. This warranty shall apply to the Products until the applicable expiration date, or within 30 days post-utilization. All Buyer warranty claims shall be made in accordance with Section 1.5 above. Subject to the foregoing and to Section 6.2 and Section 6.3 below, upon Seller’s confirmation of defects in workmanship or materials or a failure of the
Products to conform to Seller’s specifications as warranted, Seller will either (at Seller’s option) repair or replace the Product (and/or any part or component thereof) or credit Buyer’s account for the Purchase Price paid for such Product.
6.2 Warranty Limitations. The warranties in Section 6.1 shall not apply to any Product which has been modified or altered in any way by anyone other than Seller, or to defects caused
(i) through no fault of Seller during shipment to or from Buyer;
(ii) by the use or operation in an application or environment other than that intended or recommended by Seller;
(iii) by modification by anyone other than employees of, or persons approved in writing by Seller; or
(iv) by accident, negligence, misuse or other causes other than normal use. Any replacement Products and/or parts or components, as applicable, supplied under this warranty shall carry only the unexpired portion of the original warranty.
6.3 Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY DESCRIBED ABOVE IN THIS ARTICLE 6, THE PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY, REPRESENTATIONS OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND SELLER SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON INFRINGEMENT. No oral or written information or advice given by Seller or its employees will create a warranty or in any way increase the scope of the limited warranties set forth herein, and Buyer may not rely on any such information or advice.
7. Indemnification; Liability
7.1 Indemnification. Buyer shall defend, indemnify, and hold harmless Seller from and against any liability, damage, loss, or expense (including reasonable attorneys’ fees and expenses of litigation) in connection with any claims, suits, or proceedings arising out of or relating to (a) any negligent actions or omissions by Buyer or any of its agents, employees, contractors, partners, shareholders, affiliates or representatives, including but not limited to the use, maintenance, repair or alteration of any Product, or the improper assembly or incorporation of the Products into any other device; (b) actual or alleged breach or violation of any contract or applicable law, statute, rule or regulation; and (c) breach of any provision of these Terms. Such obligation to defend, indemnify and hold harmless Seller shall not apply to any claims, suits or proceedings arising out of or proximately caused solely by the gross negligence or willful misconduct of Seller, or solely by Seller’s breach of the warranty provided hereunder. Buyer shall give Seller immediate written notice of any demand, investigation, inquiry, action, suit, proceeding or claim. Seller at its sole option shall have the right to defend at Buyer’s expense any such liability or claims in which either Seller or Buyer or both are named as defendants, or reasonably are expected to be named, and Seller shall not be obligated to mitigate losses. Seller’s conduct of the defense shall not diminish Buyer’s obligation to indemnify Seller hereunder.
7.2 LIMITATION OF LIABILITY. Seller’s entire liability and Buyer’s remedies arising out of or related to sale of the Products, shall not exceed the Purchase Price received by Seller for the Products giving rise to such liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, INCLUDING LOST PROFITS AND
COST OF COVER, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, REGARDLESS OF WHETHER EITHER PARTY HAS BEEN WARNED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE IN ADVANCE, NOR WILL SELLER AT ANY TIME BE RESPONSIBLE FOR PERSONAL INJURY OR THE LOSS OR DESTRUCTION OF ANY OTHER PROPERTY RESULTING FROM THE PRODUCTS.
8. Intellectual Property
8.1 Intellectual Property Rights Defined. “Intellectual Property Rights” means any and all of the following:
(i) inventions and patents and patent applications for the same;
(ii) trademarks, trade names, service marks and logos;
(iii) internet domain names registered by any authorized private registrar or governmental authority, web addresses, web pages, websites, and URLs;
(iv) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software, and firmware, data, data files, and databases and other specifications and documentation;
(v) confidential information, proprietary information, know-how and trade secrets; and
(vi) all other intellectual property rights or industrial property rights of any kind or nature (whether or not protectable under patent, copyright, trade secrecy or similar laws) that are conceived, discovered, developed, created or reduced to practice or tangible medium of expression by Seller, its employees, consultants or agents, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise
of, any of the foregoing clauses (i) through
(vi), however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the laws of any jurisdiction throughout in any part of the world.
8.2 Limited License Grant. Buyer expressly acknowledges and agrees that Seller shall, at all times, retain all right, title, interest and ownership of its Intellectual Property Rights, including all Intellectual Property Rights relating in any way to the Products and their use, manufacture, sale and offer for sale, including, without limitation, all designs, engineering details, business, marketing and sales plans, marketing, advertising and sales materials (including, without limitation, any documentation supplied with the Product ). Subject to Buyer’s compliance with these Terms, Seller grants Buyer a non- exclusive, non-transferable (with no right to sublicense) limited license to use Seller’s Intellectual Property Rights (excluding the Seller Trademarks) solely to the extent necessary to permit Buyer to use the Products in accordance with these Terms and any documentation supplied with Product. The limited license granted herein shall terminate immediately upon any breach by Buyer of these Terms.
8.3 Trademarks. Subject to Buyer’s compliance with these Terms, Seller grants Buyer a non-exclusive, non-transferable (with no right to sublicense) license to use Seller’s trademarks (registered and unregistered), service marks (registered and unregistered), trade names and logos (collectively the “Seller Trademarks”) solely in connection with the authorized use of the Products in accordance with these Terms. Buyer may use the Seller Trademarks in the advertising, marketing and promotion of Buyer’s services utilizing the Products; provided that such advertising, marketing or promotion complies with Buyer’s trademark and advertising guidelines, or any other written or oral directions from Seller and provided further that prior to using any of the Seller Trademarks in any advertising, marketing or promotional materials, Buyer has provided samples of such materials to Seller and has obtained Seller’s express written consent. Buyer’s use of the Seller Trademarks shall inure to the benefit of Seller, and Buyer shall not at any time acquire any rights in the Seller Trademarks. Buyer shall have no claim to any goodwill, reputation or ownership of the Seller Trademarks by virtue of these Terms or otherwise. Buyer agrees not to apply for, or use or create, any trademarks that are similar to, or incorporate in whole or in part, the Seller Trademarks, or to use the Seller Trademarks as part of its business name or in a domain name. The limited trademark license granted herein shall terminate immediately upon any breach by Buyer of these Terms.
9. Debarment
Seller warrants and represents that Seller and individuals of its organization involved in providing services under these Terms have not been convicted of any criminal offense relating to health care and are not debarred, excluded, or otherwise ineligible for participation in any federal or state health care program. Seller will notify Buyer in writing immediately if any occurrence comes to its attention.
10. Credentialing
Seller recognizes that vendor credentialing is important to the healthcare community and is proactively addressing the issue while at the same time balancing the privacy rights of its personnel. Seller has selected several vendor credentialing service providers, currently including Rep Trax, VCS, Status Blue, Vendor Mate, and Vendor Clear (“Seller Preferred Vendor Credentialing Providers”) with which Seller personnel will enroll. Buyer understands that it is not practical or economically feasible for all Seller personnel to be credentialed by every Seller Preferred Vendor Credentialing Provider or every other vendor credentialing service provider. Buyer, therefore, will accept as fully credentialed, any Seller personnel who have been vendor credentialed by any Seller Preferred Vendor Credentialing Provider. Alternatively, Buyer will use reasonable efforts to cause its preferred vendor credentialing service provider to accord reciprocity to any other vendor credentialing service provider with which Seller personnel have enrolled. Buyer’s need for service may be unplanned and urgent when it arises, with patients’ safety potentially at stake. Accordingly, vendor credentialing is not an obligation of Seller under these Terms.
11. Federal Audit
Until the expiration of four (4) years after furnishing services under these Terms, Seller will make available upon written request of the Secretary of the Department of Health and Human Services (the “Secretary”) or upon request of the U.S. Comptroller General, or any of their duly authorized representatives, these Terms and the books, documents, and records of Seller that are necessary to certify the nature and extent of costs for which Buyer may properly seek reimbursement. Seller will promptly notify Buyer of any requests for information made under this provision.
12. Purchaser Reporting
Buyer understands that it must properly disclose and appropriately reflect any discounts or reductions in price associated with the Products under these Terms in costs claimed or charges made by Buyer under Medicare, Medicaid, or federal and/or state healthcare programs requiring such disclosure or
reporting. See 42 U.S.C. Section 1320a-7b(b)(3)(A). Seller shall promptly provide to Buyer, upon written request, any reasonable additional information Buyer may need to meet its reporting or disclosure obligations.
Miscellaneous Provisions
These Terms constitute the entire understanding between the Parties on its subject matter and supersede and prevail over any previous understandings, whether written or oral, in respect of such subject matter, including, without limitation, any additional or conflicting terms in any purchase order or other written document submitted by Buyer to Seller, which are expressly rejected by Seller and shall be of no effect. No representations or statements, other than those expressly set forth herein, were relied upon by the Parties in entering into these Terms. These Terms shall be governed by and interpreted in accordance with the laws of the State of California without reference to conflicts-of-law principles. Any dispute arising out of these Terms shall be brought in, and the Parties consent to personal and exclusive jurisdiction of and venue in the state and federal courts within Santa Clara County, California. Failure or delay by either Party in exercising any right hereunder shall not operate as or be deemed a waiver of such right or of any other right hereunder, except
for violations which, after discussion and mutual agreement by the Parties, are waived in writing. The Parties hereto are independent contractors and nothing contained in these Terms shall be construed to place them in the relationship of partners, principal and agent, employer/employee or joint venturer. Both Parties agree that neither shall have power or right to bind or obligate the other, nor shall either hold itself out as having such authority. Except for payment obligations, neither Party shall be liable for damages for any delay arising out of causes beyond its reasonable control, including without limitation acts of God, labor disputes, riots, wars, component shortages. If any provision of these Terms are held to be invalid or unenforceable, the remainder of these Terms shall continue in full force and effect and will be interpreted to reflect the original intent of the Parties.