Terms and Conditions for Sales
Terms and Conditions for the Sale of Products. Products furnished by the Company to Buyer are sold only on the terms and conditions stated herein (the “Terms and Conditions”). Notwithstanding any terms or conditions on Buyer’s order, the Company’s performance of any contract is expressly made conditional on Buyer’s agreement to these Terms and Conditions unless otherwise specifically agreed to in writing by the Company.
Prices. Unless the parties specifically agree otherwise in a writing signed by both parties, the purchase prices for the products shall be as specified in Buyer’s order as agreed to by the Company. Prices are exclusive of all federal, state, municipal and all other governmental excise, sales, use, and similar taxes, VAT, duties, or tariffs, which will be charged to Buyer, and Buyer agrees to pay all such taxes, duties, and tariffs. Buyer must provide the Company with written certification for any claim of tax or other exemption prior to shipment of Buyer’s order. If the Company is required to pay additional taxes, Buyer shall immediately reimburse and hold the Company harmless for all such taxes.
Terms of Payment. Payment is due NET 30 days from the date of the Company’s invoice. Buyer’s obligation to pay outstanding invoices and all other amounts is absolute and unconditional and is not subject to any abatement, reduction, set-off, defense, counterclaim, interruption, deferment or recoupment for any reason whatsoever. In the event Buyer shall default in its obligations hereunder, Buyer shall be liable for the Company’s costs of collection, including reasonable attorneys’ fees.
Shipments. The Company is responsible for all shipping, handling, and insurance costs, and any fees, taxes and duties. Unless previously agreed to by the Company, products shall be shipped in the Company’s standard packaging using a standard ground shipment delivery service or hand delivered by a Company representative. The Company reserves the right to ship items in a single shipment or in multiple shipments. The property in or title to, and the risk of loss of, purchased products, shall transfer to Buyer when such products are accepted at Buyer’s facility.
Delivery. Delivery schedules for the products are subject to the Company’s then-current lead times and product availability. The Company will make reasonable efforts to meet delivery dates quoted or acknowledged but shall in no event be liable for failure to meet any such date(s). The Company shall have the right to deliver products prior to any agreed upon delivery date. Delay in delivery or default of any installment shall not relieve Buyer of its obligation to accept and pay for remaining installments.
Acceptance. Buyer will have the right to visually inspect the products upon delivery by the Company. Buyer shall have the right to reject each shipment within 2 business days of delivery if the product is damaged or if the product type or quantity does not conform to the purchase order. If Buyer receives the products or takes possession of them without inspecting, this will constitute a waiver of its right to inspect. All products shall be deemed accepted by Buyer unless Buyer provides the Company with notice of receipt of damaged products, and Buyer’s rejection specifies the specific nature of the damage, within 2 business days of delivery of the products, by calling the Company’s Customer Service department at 1-888-715-2080, or the applicable sales representative of the Company.
Returned Products. Returned products will be accepted only with prior authorization by the Company’s Customer Service department, which may issue Buyer a Return Merchandise Authorization (RMA) number. Returned items must be in original, unopened shipping cartons in saleable condition and must be accompanied by the RMA number. Credit will be issued only for items returned with the Company’s approval.
Safe Medical Devices Act. Buyer acknowledges that it is familiar with the U.S. Safe Medical Devices Act of 1990 (the “Devices Act”) and the reporting obligations imposed on device users thereunder. In this regard, Buyer agrees that if Buyer files with the U.S. Food and Drug Administration (“FDA”) an FDA form 3500A or a similar form of medical device report under the Devices Act, regarding the products or any part of the products, then Buyer shall simultaneously furnish to the Company a copy of the form or report. Buyer will maintain adequate tracking for the products purchased by Buyer to enable the Company to meet the FDA requirements applicable to the tracking of the products.
Limited Warranty. The Company warrants that the products will be free from defects in materials and workmanship under normal conditions of use for a period of 1 (one) year after acceptance of such products. The Company’s warranty hereunder shall not apply if: (i) the product is not used in accordance with its instructions or the product is used for a purpose not indicated on its labeling; (ii) the product is repaired, modified or altered without the Company’s authorization; or (iii) the alleged defect or damage is the result of abuse, misuse, neglect, improper maintenance or storage, accident or the negligence of any party other than the Company. The warranty provided in these Terms and Conditions does not extend to damage to items purchased hereunder resulting from the use of components, accessories, parts or supplies not furnished by the Company. The foregoing warranty does not extend to any items not manufactured by the Company. Such items carry the original manufacturer’s warranty, if any, and Buyer must submit warranty claims regarding such items to the original manufacturer in accordance with such manufacturer’s policies. THE FOREGOING WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER EXPRESS OR IMPLIED WARRANTIES, ARISING BY OPERATION OF LAW OR OTHERWISE, AND the Company EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Products under the foregoing warranty, at the Company’s option, will be repaired or replaced or credit for their original purchase price will be allowed provided the Company is notified of such defect promptly after delivery and Buyer returns such products in accordance with the Company’s instructions. The foregoing constitutes Buyer’s sole remedy and the Company’s sole obligation with respect to products furnished hereunder. It is Buyer’s responsibility to check the products upon receipt before use.
Data Privacy and Security. For purposes of this Section, and as used elsewhere in this Agreement, the following definitions shall apply:
“Covered Data” means Personal Data that (i) Buyer discloses to Company in connection with providing services or treatment to a Data Subject, (ii) is entered into a Clinician Programmer by or on behalf of Buyer, or (iii) is collected or transmitted to Company through a Hub or other product that Buyer purchases pursuant to this Agreement and assigns to, implants in, or otherwise uses to treat, a Data Subject. Covered Data does not include Personal Data that Company collects through its own interactions with a Data Subject.
“Data Controller” means a person or entity that is involved in determining the purpose and means of Processing Personal Data. To the extent Data Protection Laws include the California Consumer Privacy Act of 2018, as amended (“CCPA”), “Data Controller” includes the term “business,” as defined in the CCPA.
“Data Protection Laws” means privacy or data protection laws and regulations applicable to the Processing of Covered Data.
“Data Subject” means a natural person who seeks medical advice or treatment from Buyer.
“Personal Data” means information that identifies, relates to, or can reasonably be linked to, a particular Data Subject.
“Process” or “Processing” means use, disclosure or retention of Personal Data, including any operation or set of operations that are performed on Personal Data.
Unless the parties have entered into a separate agreement concerning the Processing of Covered Data, the following terms shall govern the Processing of Covered Data.
Categories of Covered Data that may be disclosed or transferred to Company in connection with this Agreement include:
- First and Last name
- Phone number, email address, and other contact information
- Age (date of birth)
- Sex, gender
- Medical condition, symptoms or treatment information
- Device ID or serial number
- Device logs (usage patterns, technical information)
Each Party shall be an independent Data Controller, and shall comply with all applicable Data Protection Laws, with respect to the Processing of Covered Data. Accordingly, Company may Process Covered Data for its own commercial and business purposes and combine Covered Data with Personal Data collected through Company’s own interactions with a Data Subject, subject to the terms of this Agreement and Data Protection Laws. Company shall not sell Covered Data or share it with third parties for cross-context behavioral advertising purposes.
Buyer shall be solely responsible for (i) obtaining Data Subject consent or authorization for, or otherwise establishing a lawful basis for, the transfer of Covered Data to Company and the Processing of Personal Data as described herein, consistent with Data Protection Laws, (ii) the accuracy of information that a Hub or other product purchased pursuant to this Agreement transmits to Company, or that Buyer or its personnel enter into a Clinician Programmer, and (iii) the security of information that a Hub or other product purchased pursuant to this Agreement transmits to Company, or that Buyer or its personnel enter into a Clinician Programmer, including implementation and maintenance of the security controls.
If Buyer determines that it can no longer satisfy its obligations under this Agreement or comply with Data Protection Laws, it shall immediately notify Company.
Indemnity. The Company shall indemnify and hold harmless Buyer from any and all claims, damages, losses or expenses, which are solely and directly caused by the Company’s negligence.
Buyer shall indemnify, defend and hold harmless the Company from any and all claims, damages, losses or expenses, including but not limited to attorneys’ fees, which are caused by or arise out of (i) Buyer’s breach of this Agreement, (ii) Buyer’s violation of applicable laws, including but not limited to Data Protection Laws, or (iii) any act or omission of Buyer, or Buyer’s agents, employees or subcontractors, in the handling, storage or use of the products in a manner inconsistent with applicable guidelines, including the instructions for use for such product. The Company shall not be subject to any liability, whether based in contract, warranty, tort (including negligence and strict liability) or otherwise arising out of assistance or advice provided by the Company which is not expressly provided for in the Company’s quotation and Buyer’s order.
Limitation of Liability. the Company SHALL NOT BE LIABLE TO BUYER FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THE DEFECT, FAILURE OR MALFUNCTION OF ANY PRODUCT, INCLUDING BUT NOT LIMITED TO CLAIMS FOR LOST BUSINESS, LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, OR ANY OTHER TYPE OF INDIRECT DAMAGES, WHETHER A CLAIM FOR SUCH DAMAGE IS BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), COMMON LAW, STATUTE OR OTHERWISE AND WHETHER the Company HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Patents. The Company will defend or settle at its own expense any suit or action which may be brought against Buyer for alleged infringement of any U.S. patents of third parties by reason of Buyer’s proper use of the Company’s products and will indemnify and hold Buyer harmless from and against all damages and costs which may be adjudged or decreed against Buyer on account of such infringement in any such suit or action and actually paid by Buyer; provided, however, that Buyer shall have given prompt written notice to the Company of any claim of such alleged infringement and of the commencement, or any written threat of commencement, of any such suit or action, and shall permit the Company to have full control over the defense or settlement of the same; and provided further, that Buyer shall not settle or compromise any such suit or action without the prior written consent of the Company. The remedies set forth in this paragraph shall constitute Buyer’s sole and exclusive remedy and the Company’s sole liability in connection with alleged infringement of any third-party intellectual property rights.
Anti-Kickback Statute. If the price offered by the Company to Buyer constitutes a ‘discount or other reduction in price’ under the Anti-Kickback Statute (42 U.S.C. §1320a-7b(b)) and the regulations set forth in 42 C.F.R. 1001.952(h), Buyer shall disclose the discount or reduction in price to the full extent required under any state or federal program that provides cost or charge-based reimbursement to Buyer for products. If applicable, Buyer will fully and accurately report on any claim or request for payment it submits to Medicare and Medicaid the actual purchase price paid by Buyer for products, net of discounts, rebates or allowances provided by the Company. Buyer will be solely responsible for determining whether any savings or discount or warranty items it receives must be reported or passed on to payors.
Force Majeure. The Company shall not be liable for delays in the performance of any purchase order arising out of causes beyond the control and without the fault or negligence of the Company. Causes beyond the Company’s control shall include, but not be limited to, government action or failure of the government to act where such action is required, strike or other labor trouble, disease outbreak, fire or unusually severe weather.
Changes by the Company. The Company reserves the right at any time, without notice, to make changes in design or additions to or improvements in its products without liability or obligation to install such change, addition, or improvement in any product manufactured prior thereto.
Discontinued Products. The Company reserves the right to discontinue or withdraw any products without notice.
Severability. All of the provisions of these terms and conditions are separate and severable. If any provisions of these terms and conditions are held invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the other portions hereof.
Waiver. The waiver by the Company of any term, provision, or condition hereunder must be in writing and shall not be construed to be a waiver of any other term, condition, or provision hereof, nor shall such waiver be deemed a waiver of a subsequent breach of the same condition or provision on this order or on future orders.
Creditworthiness. In the event Buyer fails to fulfill previous terms of payment or in case the Company shall have any doubt at any time as to Buyer’s financial responsibility, the Company may decline to make further deliveries except upon receipt of cash or other special arrangements.
Assignment. These terms and conditions may not be assigned by Buyer without the consent of the Company. Buyer agrees that the Company shall have the right to subcontract any work provided for herein.
Integration Clause. These terms and conditions and any agreement to which these terms and conditions are attached constitute the entire contract of sale and purchase of the products named herein. No modification hereof shall be of any force or effect unless in writing and signed by the party claimed to be bound thereby, and no modification shall be affected by the acknowledgment or acceptance of purchase order forms stipulating different conditions. In the event of any conflict of the terms of a purchase order and these Terms and Conditions, these Terms and Conditions shall prevail.
Confidential Information. The information and material contained herein is submitted in confidence and with the condition that it will not be copied or otherwise reproduced and will not be used or disclosed to anyone outside Buyer’s company except as authorized in writing by the Company.
Governing Law. The validity, interpretation, construction and performance of these terms and conditions shall be governed and construed in accordance with the laws of the State of Utah, except its conflict of laws rules. Suit with respect to these terms and conditions may be brought only in Summit County, Utah.