Standard Terms and Conditions of Sale – Direct Customers
ALL SALES ARE SUBJECT TO AND EXPRESSLY CONDITIONED UPON THE TERMS AND CONDITIONS CONTAINED HEREIN, WHICH ARE ACCEPTED BY THE CUSTOMER UPON PLACING AN ORDER FOR PRODUCT(S) WITH VYAIRE MEDICAL, INC. (“Vyaire”) THAT IS CONFIRMED BY VYAIRE. NO VARIATION OF THESE TERMS AND CONDITIONS WILL BE BINDING UPON VYAIRE UNLESS AGREED TO IN WRITING AND SIGNED BY AN AUTHORIZED EMPLOYEE.
Vyaire reserves the right at any time to amend these standard terms and conditions of sale (these “Terms and Conditions”). Vyaire has no responsibility to notify the Customer of any changes prior to such update. Customer shall be deemed to accept such updated Terms and Conditions by ordering products offered on or after the date these Terms and Conditions are updated. “Product” means each Vyaire product/service identified in the Customer’s purchase order.
1. Purchase Orders.
- All orders must be placed in Vyaire’s saleable unit of measure quantity (case or shelf pack).
- Only the Products and quantity shall be acknowledged by Vyaire. Any modifications regarding pricing, terms of sale, specific shipping instructions or general ordering information, shall have no effect unless accepted in writing by an authorized representative of Vyaire.
- Vyaire reserves the right to alter orders where quantities are significantly higher than Customer’s historical norms, or in times of scarce supply. Vyaire will notify Customer of any change to order quantity prior to shipment.
- Scheduled deliveries may be available for Customer based on Customer’s geography, frequency and volume of purchases.
2. Expedited Orders.
- All expedited orders must be called in to Customer Support. EDI is not accepted for expedited orders. If expedited orders are placed via e-mail or fax as opposed to calling in the order, they will be processed in the order in which they were received and may cause a delay in shipping.
- Expedited orders (overnight or second day) carry an Expedited Freight shipping and handling charge calculated by Vyaire. The minimum order policy does not apply. Quantities should be limited to ten (10) Cases/Shelf Packs or less.
3. Special Services/Non-Standard Orders. Vyaire reserves the right to assess a service fee for any special service request not specifically mentioned in these Terms and Conditions.
4. Order Acknowledgement. Vyaire may refuse orders and has no obligation to supply Products unless Vyaire issues an order acknowledgement or upon the shipment of Products or commencement of services.
5. Delivery; Risk of Loss. Products are shipped FOB Origin, Prepaid and Add, risk of loss and title to transfer to Customer at the time Vyaire places the Product with the carrier at Vyaire’s facility and Customer shall be responsible for the shipping costs.
6. Acceptance. If no implementation services with respect to a Product are to be performed by Vyaire, title shall pass to Customer upon delivery of a Product at which time the Product shall be deemed accepted. Customer may reject a Product only if the Product fails to function substantially in accordance with the specifications of the applicable “Product Insert”, which may be a user guide, instructions for use or operating manual.
If implementation services with respect to a Product are to be performed by Vyaire, title shall pass to Customer upon delivery of a Product, provided, however, final acceptance of the Product shall not take place until such installation services are performed, provided that such Product functions substantially in accordance with the specifications of its Product Insert. Customer may reject a Product only if the Product fails to function substantially in accordance with the specifications of its Product Insert. Upon completion of applicable implementation services, Customer will execute Vyaire’s standard confirmation form as documentation of final acceptance as applicable.
7. Returned Goods Authorization. Product returns and replacements are subject to Schedule 1, Returned Goods Policy attached hereto and incorporated herein by reference (“Returned Goods Policy”). Customer shall request a returned goods authorization number for a Product prior to Customer delivering that Product to Vyaire for return, replacement, warranty or repair services pursuant to Vyaire’s Returned Goods Policy.
8. Restriction on Use of Products. Customer shall use each Product only: (i) for Customer’s internal use and not for resale, (ii) in the manner described in the Product Insert, and (iii) in accordance with applicable laws and regulations. Customer shall not install or use on a capital equipment Product any software other than software licensed from Vyaire for use with that Product. Customer shall not remove or alter any tags, labels or identifying markings placed by, or on behalf of, Vyaire on any Products or packaging.
9. Operating Manual. If applicable, Vyaire shall deliver to Customer, solely for Customer’s internal use, one (1) copy of the then-current operating manual (“Operating Manual”) for each Product. Customer shall not reproduce any Operating Manual.
10. Product Software. “Product Software” means all Vyaire-owned software, (e.g. application software, embedded and/or integrated software, interface software, custom drivers), and “Third Party Software” is any software distributed with the Products owned by a third party for which there is no separate license agreement between you and the owner of the Third Party Software (collectively the “Software”). Vyaire is not selling any Software and all title and intellectual property rights in and to the Software is owned by the owner of the Software. Vyaire licenses Software to Customer solely pursuant to the terms of these Terms and Conditions; there are no implied rights. Customer shall not: (i) translate, disassemble, decompile, reverse engineer, alter, modify or create any derivative work of any portion of the Software, (ii) make any copies of Software, except for one (1) copy to store for emergency back-up purposes only, or (iii) sell, assign, sublicense, distribute, rent or transfer Software to a third party.
11. Decontamination. Customer shall clean and decontaminate any previously-used Product prior to delivering or tendering that Product to Vyaire to permit Vyaire to perform implementation or repair services.
B. BILLING AND PAYMENT TERMS.
1. Prices. Unless otherwise expressly agreed to by Customer and Vyaire, Products are priced at Vyaire’s current published price.
2. Taxes. Prices and fees stated for Products do not include any taxes. Customer shall pay when due any sales, property or other taxes or other assessments of any kind (other than any tax based solely on Vyaire’s net income) and related interest and penalties arising from Customer’s acquisition or possession of the Products. If Customer is exempt from any taxes, Customer will not be relieved of its obligation to pay such taxes until Customer provides to Vyaire documentation sufficient to establish Customer’s tax-exempt status. Customer will immediately notify Vyaire in writing of any change in its tax-exempt status licenses. Customer maintains all licenses necessary for the purchase of Products (e.g., state pharmacy license, physician’s license, etc.) and will forward a copy of such licenses to Vyaire upon request. Customer hereby represents and warrants that Customer has all current licenses required to purchase Products and agrees that this representation is material consideration to Vyaire and that Vyaire is relying on such representation.
3. Payment Terms; Late Charge. Customer shall pay all Vyaire invoices in full within net thirty (30) days from Vyaire’s invoice date. All disputes regarding invoices must be submitted to Vyaire within thirty (30) days of invoice date. If Customer does not pay an amount due by the due date, then Vyaire may impose a late charge on the unpaid amount at the rate of one and one-half percent (1.5%) per month or the highest rate allowed by law (whichever is lower), prorated on a daily basis.
4. Proper Reporting of Discounts and Pricing. Product pricing and rebates (if any) may reflect “discounts or other reduction in price” as that term is used in the “safe harbor” regulations in the Medicare/Medicaid Anti-Kickback Statute, 42 C.F.R. § 1001.952(h). The Parties shall: (i) comply with all applicable laws and regulations relating to the accounting, application, and proper reporting of discounts and pricing under these Terms and Conditions, including but not limited to the requirements of the discount “safe harbor” located at 42 C.F.R. § 1001.952(h), (ii) properly report and appropriately reflect all prices paid under these Terms and Conditions net of all discounts as required by applicable laws and regulations, including but not limited to on Medicare, Medicaid and state agency cost reports, and (iii) retain a copy of these Terms and Conditions and all other documentation regarding these Terms and Conditions, together with the invoices for purchase of Products hereunder and shall permit representatives of the U.S. Department of Health & Human Services or any relevant state agency access to such records upon request.
C. WARRANTY AND LIABILITY
1. Limited Warranty. In the absence of a written Product warranty accompanying a Product or available electronically when delivered to Customer, the Products manufactured by Vyaire shall perform, for a period of one (1) year for capital equipment or for the period of a Product’s shelf-life for disposables, in accordance with Vyaire’s instructions for use for such Product (the “Limited Warranty”). If a Product fails to perform in accordance with the Limited Warranty because of a defect in workmanship or material, then, as Customer’s sole remedy, Vyaire shall promptly repair or replace, at Vyaire’s sole option, the Product, or any part thereof. EXCEPT AS EXPRESSLY SET FORTH ABOVE, VYAIRE HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES REGARDING THE PRODUCTS, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The Limited Warranty does not apply to any Product that: (i) has been modified, repaired or altered, except by Vyaire, (ii) has not been properly installed, used, handled, operated or maintained in accordance with any handling or operating instructions provided by Vyaire, or (iii) has been subjected to physical or electrical stress, misuse, abuse, negligence, accidents or causes beyond Vyaire’s reasonable control. Product warranties extend only to the original Customer and are not assignable or transferable by Customer.
2. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS OR PROFITS), WHETHER BASED IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS OF LIABILITY WILL APPLY EVEN IF THERE IS A FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THESE TERMS AND CONDITIONS. THE TOTAL LIABILITY OF VYAIRE, IF ANY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIM OF ANY KIND WHATSOEVER, REGARDLESS OF LEGAL THEORY, WILL NOT BE GREATER THAN THE ACTUAL PURCHASE PRICE OF THE VYAIRE PRODUCTS GIVING RISE TO SUCH CLAIM. NOTWITHSTANDING THE FOREGOING, THE LIMITATION OF LIABILITY SET FORTH HEREIN WILL NOT APPLY TO ANY DEATH, PERSONAL INJURY OR PROPERTY DAMAGE THAT IS CAUSED BY VYAIRE’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR STRICT LIABILITY IN TORT IN CONNECTION WITH VYAIRE PRODUCTS.
1. Customer Representation. Customer represents that it is a hospital or other health care provider or third-party service provider and/or reseller located within the fifty United States or the District of Columbia.
2. Mutual Indemnification. Each party (“Indemnifying Party”) shall indemnify and defend the other party (the “Indemnified Party”) against any demand, action, claim, suit or proceeding asserted against the Indemnified Party by a third party for losses, injuries, or damages caused by the Indemnifying Party’s negligent acts or omissions in connection with these Terms and Conditions.
3. Intellectual Property Indemnity. Vyaire shall defend Customer against any claim filed in a court of competent jurisdiction in the United States brought by a third party against Customer alleging that a Product used by Customer in accordance with this Agreement infringes any U.S. patent, copyright, trade secret or other proprietary right of a third party (each, an “Infringement Claim”). As a condition to receiving the defense, Customer will provide written notice to Vyaire promptly after Customer receives actual notice of the Infringement Claim, will allow Vyaire to have sole control of the defense and any related settlement negotiations, and will provide reasonable cooperation upon request. Vyaire will: (i) pay any damages and costs assessed against Customer (or payable by Customer pursuant to a settlement agreement agreed to in writing by Vyaire) arising out of the Infringement Claim, and (ii) reimburse Customer for its reasonable costs and expenses associated with providing reasonable cooperation. If Vyaire determines that a Product might infringe a third party’s intellectual property right, then Vyaire will have the option, at its expense and in its sole discretion, to: (a) replace the Product with a substantially equivalent noninfringing Product, (b) modify the Product in a manner that does not substantially affect the performance of the Product, or (c) obtain a license to permit Customer to continue using the Product. This Section states Customer’s exclusive remedy and Vyaire’s total liability to Customer for an Infringement Claim.
4. Option to Modify. If Vyaire determines that a Product might infringe any United States patent, copyright, trade secret or other proprietary right of a third party, then Vyaire may, at its option, replace the Product with a substantially equivalent Product or modify the Product in a manner that does not adversely affect the performance or functionality of the Product.
5. Access to Records. For a period of four (4) years after Vyaire has shipped the Products to Customer, Vyaire shall make available, upon written request of the Secretary of the Department of Health and Human Services, or upon request of the Comptroller General of the United States, or any of their duly authorized representatives (collectively, the “Requesting Party”), these Terms and Conditions, any books, documents, and records necessary to certify the nature and extent of the costs paid by Customer to Vyaire pursuant to these Terms and Conditions (“Access”). If Vyaire pays a subcontractor more than $10,000 over a twelve (12) month period to perform any services in connection with these Terms and Condition, then Vyaire shall obligate the subcontractor to permit Access to the Requesting Party.
6. Confidentiality. Customer will keep confidential any confidential information disclosed to Customer by Vyaire, including without limitation Product pricing, and will not use, publish or disclose, or cause anyone else to use, publish or disclose, Vyaire’s confidential information without prior written consent. This obligation does not extend to any information subject to disclosure by legal process or information that Customer can demonstrate with tangible evidence was already known or independently developed by Customer, or publicly available, prior to Vyaire’s disclosure. In the event of a disclosure required by law, Customer agrees to provide prompt notice to Vyaire prior to any such disclosure. Customer’s obligations, under these Terms and Conditions with respect to the Confidential Information shall survive the expiration or earlier termination of these Terms and Conditions.
7. Customer Policies. Vyaire and its employees shall comply with Customer’s reasonable security rules, policies and procedures provided in writing and agreed to in advance by Vyaire (“Customer Policies”). Customer will notify Vyaire in writing of any material changes to Customer Policies. Any terms of the Customer Policies that are in addition to or conflict with these Terms and Conditions will have no force or effect unless adopted via a written amendment to these Terms and Conditions signed by each party.
7. Force Majeure. If a party is reasonably prevented from performing an obligation of these Terms and Conditions because of fire, flood, wind, earthquake, explosion or other disaster, acts of military authorities, acts of civil authorities unrelated to any violation of law by the party, war, riot, insurrection, act of terrorism or other cause beyond the party’s reasonable control (collectively, a “Force Majeure Event”), then that party shall not be in breach of these Terms and Conditions during the period that party is prevented from performing that obligation, provided that the party: (i) promptly delivers notice to the other party identifying the Force Majeure Event, and (ii) immediately uses best efforts to perform the obligation notwithstanding the Force Majeure Event.
8. Assignment. Neither party may assign any rights or obligations under these Terms and Conditions without the other party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, provided that either party may assign such party’s rights and obligations under these Terms and Conditions without the other party’s consent: (i) to an affiliate, or (ii) incident to the transfer of all or substantially all of such party’s business assets in connection with the subject matter of these Terms and Conditions.
9. Notices. Any notice from one party to the other party related to these Terms and Conditions shall be in writing and delivered either by hand, overnight courier or first-class mail (certified or registered, return receipt requested, postage prepaid) to the receiving party’s contact address on file with the other party. A notice shall be deemed to be given when delivered if by hand or by overnight courier and three days after it is mailed if by certified or registered mail. Either party may change its notice address upon delivery of notice to the other party.
10. Severability; Non-Waiver. If a court or other body of competent jurisdiction declares any term of these Terms and Conditions invalid or unenforceable, then the remaining terms shall continue in full force and effect. No right created by these Terms and Conditions shall be deemed waived unless specifically and expressly waived in a writing signed by the party possessing the right.
11. Governing Law. These Terms and Conditions shall be governed by the laws of the state of Illinois, without regard to that state’s conflicts of law provisions.
RETURNED GOODS POLICY
Distributed Purchase Policy
Per Authorized Distributor terms if distributed.
Direct Purchase Policy
Product returns will be accepted only to the extent that such Products were purchased directly from Vyaire, and are subject to the following requirements:
1. Returns will not be accepted for full credit without a Return Good Authorization (“RGA”) issued by Vyaire, including returns which are the result of a Vyaire error.
2. All Product returns must have a copy of the RGA attached with return paperwork.
3. An RGA will not be issued, nor will credit be given by Vyaire for the following:
- Product returned WITHOUT authorization
- Product not purchased directly from Vyaire
- Products returned with conditions that prevent resale. Examples include but are not limited to:
- Obsolete or discontinued Products
- Opened or resealed Products
- Expired Products or Products outside minimum dating requirements
- Units of measure less than original unit of issue, for example partial cases/shelf packs
- If such non-resale Product is returned a credit will not be issued and the Product will be destroyed.
4. An RGA will only be issued to the original Customer ship-to location
5. Returned Product must be received in their original, unopened packaging and in salable condition within 30 days of the issuance of the RGA to be eligible for full credit, minus the restocking fee. If returned Products are received after the thirty (30) day expiration of the RGA, Vyaire reserves the right to refuse to accept the return or charge additional restocking fees, even if the Products are in saleable condition.
6. Returns are to be shipped only to the designated Vyaire location indicated on the RGA form. The Customer pays the freight charges for all returns
7. Product shipped in error by Vyaire will be accepted for return, freight-collect using a Vyaire designated carrier. Vyaire reserves the right to issue a Certificate of Destruction (COD) in place of returning said Product. Applicable credit, if any, will be issued upon receipt by Vyaire of the signed COD. The restocking fee will not apply.
8. For 3rd party vendor drop-shipped Products, Customer shall follow all 3rd party vendor return guidelines.
9. Returns requested within 0-180 Days from Vyaire’s original shipment date are subject to a 25% Restocking Fee. Returns requested 181 days or more from Vyaire’s original shipment date will be denied, such Product is not returnable, nor will credit be issued.
Last Updated on: 2018OCT03