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Terms and Conditions for Direct Sales

ALL SALES ARE SUBJECT TO AND EXPRESSLY CONDITIONED UPON THE TERMS AND CONDITIONS CONTAINED HEREIN (“TERMS AND CONDITIONS”), WHICH ARE ACCEPTED BY THE CUSTOMER UPON PLACING AN ORDER FOR PRODUCT(S) WITH VYAIRE MEDICAL, INC. (“VYAIRE”) ONCE CONFIRMED BY VYAIRE AND CONSTITUTE THE ENTIRE AGREEMENT BETWEEN VYAIRE AND CUSTOMER (EACH A “PARTY”, AND COLLECTIVELY, THE “PARTIES”). NO VARIATION OF THESE TERMS AND CONDITIONS WILL BE BINDING UPON VYAIRE, UNLESS AGREED TO IN WRITING AND SIGNED BY AN AUTHORIZED EMPLOYEE.

VYAIRE HEREBY REJECTS ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED BY CUSTOMER, WHETHER CONTAINED IN ANY FORMS OR ON CUSTOMER’S WEBSITE, AND ANY SUCH ADDITIONAL OR DIFFERENT TERMS WILL BE OF NO EFFECT.  No site usage agreement or any other click through agreement on a website will have any binding effect, regardless as to whether or not Vyaire clicks on an “ok,” “I accept”, or any similar acknowledgment. 

By placing a purchase order, Customer is deemed to have accepted these Terms and Conditions. These Terms and Conditions supersede any agreement or document, including terms and conditions that are part of a purchase order or other document, sent to Vyaire by Customer.  Notwithstanding the foregoing, if Customer’s purchase order sets forth fees or changes mandated by applicable law, Vyaire shall pay such fees or charges but all other terms and conditions contained therein shall be superseded.

  1. Orders. Customer shall comply with Vyaire’s ordering instructions, which are attached hereto and incorporated herein as Exhibit A.
     
  2. Delivery; Risk of Loss. Products are shipped FOB Origin, with freight charges prepaid by Vyaire and added to Customer’s invoice. Title and risk of loss for Products shall pass from Vyaire to Customer at the time Vyaire provides the Products to the carrier at Vyaire’s facility.
     
  3. Acceptance. Products will be deemed accepted by Customer upon delivery, unless Customer reports any damage or defective Products within ten (10) business days from Vyaire’s invoice date. All proof of delivery requests must be made within thirty (30) days of invoice date.
     
  4. Price. All prices for the Products are subject to change without notice. Pricing errors may be corrected at any time. Vyaire may, at any time and without obligation, suspend performance or require payment in cash, security, or require other adequate assurances satisfactory to Vyaire when, in the sole opinion of Vyaire, the financial circumstances of Customer warrant such action.
     
  5. 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.
     
  6. Payment Terms; Late Charge. Customer shall pay all Vyaire invoices in full within thirty (30) days from invoice date. All disputes regarding invoices must be submitted to Vyaire within thirty (30) days of invoice date. Deductions on remittances are not permitted unless accompanied or referenced by a valid Vyaire credit memorandum. 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.
     
  7. 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 in accordance with Vyaire’s material specifications 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 (not limiting any right to indemnification pursuant to Sections 10 and 11), 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.
     
  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’s accompanying documentation, and (iii) in accordance with applicable laws and regulations. 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. Returns. Product returns and replacements are subject to Vyaire’s Returned Goods Policy, attached hereto and incorporated herein as Exhibit B. 
     
  10. 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.
     
  11. 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 these Terms and Conditions 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 non infringing 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.
     
  12. Product Recall. Should a Product recall based on consumer safety issues or other regulatory concerns, as identified by the U.S. Food and Drug Administration, as cause for a Product recall occur, or as a result of Vyaire’s willful misconduct or negligence in the manufacture of the Product (“Recalled Product”), Vyaire agrees: (i) to reimburse Distributor for the Product price paid to Vyaire by Distributor pursuant to this Agreement attributable to the Recalled Product; and (ii) to pay for the return shipment from any location and destruction of the Recalled Product.  The decision to initiate a recall or to take some other corrective action, if any, shall be made and implemented by Vyaire.  Vyaire shall control such recall or corrective action and Customer shall cooperate as reasonably required by Vyaire.  Nothing herein shall be construed to require payment by Vyaire to Customer for any additional costs, fees, premiums or penalties, including but not limited to lost profits, lost market share, advertising fees, increased future costs, or compensatory, anticipatory, or other damages.
     
  13. 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.
     
  14. 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.
     
  15. 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.
     
  16. Access to Records. For a period of four (4) years after Vyaire has performed these Terms and Conditions, Vyaire shall make available, upon written request of the Secretary of the Department of Health and Human Services (“Secretary”), or upon request of the Comptroller General of the United States (“Comptroller”), 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 Conditions, then Vyaire shall obligate the subcontractor to permit Access to the Requesting Party.
     
  17. 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.
     
  18. 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.
     
  19. General. 
    (a) 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.
    (b) 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.
    (c) 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 Vyaire may assign its rights and obligations under these Terms and Conditions without the Customer’s consent: (i) to an affiliate, or (ii) incident to the transfer of all or substantially all of Vyaire’s business assets in connection with the subject matter of these Terms and Conditions.
    (d) 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.
    (e) 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.
    (f) 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.
    (g) These Terms and Conditions (including all exhibits or appendixes attached hereto), constitutes the entire agreement and understanding of the parties regarding the subject matter hereof, and supersedes all prior written and oral agreements, proposals, and understandings between the parties regarding the subject matter of as provided herein.  

EXHIBIT A

Ordering Instructions
 

  1. Purchase Orders
    a. Customer shall submit its purchase order for the Products to Vyaire.  All purchase orders shall be submitted for Products using the published unit of measure.  Unless a Product is sold in an “each” unit of measure, no Products shall be available in an each unit of measure.  
    b. Vyaire shall endeavor to ship all accepted orders within a commercially reasonable time.
    c. Vyaire reserves the right to alter orders where quantities are significantly higher than historical norms, or in times of scarce supply. Vyaire will notify Customer of any change to order quantity prior to shipment.
    d. Customer directed air shipments will be assessed additional shipping and handling charges.
    e. Order Fees: No fee shall be assessed for EDI orders; a $50 fee may be charged for all manual orders in Vyaire’s sole discretion.
    f. Refused deliveries will be subject to the twenty-five percent (25%) restocking fee. Re-delivery of refused Products will be subject to additional transportation charges.
     
  2. Minimum Order Policy
    a. Vyaire will accept orders of any size and value; however, a minimum order shipping and handling charge of $100 may be applied for orders less than $1,000 in value, including drop shipment orders in Vyaire’s sole discretion.
     
  3. Rush Orders
    a. Rush orders (overnight or second day) carry a rush shipping and handling charge. Freight will be prepaid and charged at time of invoicing. 
    b. All Rush orders must be placed as manual orders and are subject to the manual order fee. EDI is not accepted for rush orders. Priority is given to orders called in to Vyaire’s customer service.  If rush orders are placed via e-mail or fax as opposed to calling in the order, they will be processed in the order they were received, and you may experience a delay in shipping.
     
  4. Direct & Drop Ship Orders
    a. Requests for drop shipment directly from Vyaire will be accepted to ensure uninterrupted customer service. All drop ship orders shall be placed manually.
    b. Direct shipments to facilities, including drop shipments but excluding expedited shipments due to Vyaire’ s error, will be assessed shipping and handling charges, except for Products designated as drop ship only by Vyaire. Vyaire’s minimum order policy above shall apply to all drop shipments.
    c. Each drop ship order must have a Vyaire assigned ship-to account number and a complete and valid delivery address. Orders placed under a generic account with delivery address overrides will be rejected. Special requests for Saturday delivery must include contact name and telephone information. Refrigerated or make-to-order drop ships which result in a free-astray or refused delivery are not returnable and credit will not be issued.
    d. For all Products not manufactured by Vyaire and are shipped directly to Customer or drop shipped to an end user on behalf of Customer, Customer is subject to the manufacturer’s shipping terms, minimum order policy, shipping and handling charges and any other applicable service fees. 
    e. Ineligible Drop Ship Customers are defined as:
    i.    Ineligible Affiliates;
    ii.    Post Office boxes and residential addresses;
    iii.    Exporters, freight forwarders, third party logistic providers;
    iv.    Shipments outside of the 50 United States, including to U.S. Territories (including, without limitation, Puerto Rico) or U.S. overseas military locations; or
    v.    Public Warehouses, Carrier Packaging & Supplies Stores.
     
  5. Hazmat Orders
    a. Orders containing DOT-regulated hazardous materials will include a $30 hazmat charge. 
     
  6. Reporting Discrepancies
    a. Customer shall inspect all deliveries prior to acceptance from the carrier and sign the carrier bill of lading. Discrepancies should be noted on the freight document and countersigned by the carrier. 
    b. Shipping discrepancies must be reported to Vyaire within fifteen (15) business days of invoice date. Discrepancies not noted on packing slip will not be credited. 
    c. Invoice discrepancies must be reported within thirty (30) days of Vyaire’s invoice date via email to customersupport@vyaire.com and clearly identified on deductions or debit memo notifications. To the extent Customer’s purchase order has the incorrect pricing and Vyaire accepts Customer’s purchase order, Customer shall not be eligible to report an invoice or pricing discrepancy.  Failure to provide timely notification within thirty (30) days of Vyaire’s invoice date will be grounds for denial of the claim. Invoice deductions inconsistent with this paragraph will not be allowed and Vyaire reserves the right, but not the obligation, to net monies due, to offset outstanding debt due to Vyaire.
    d. When reporting claims, have available the following:
    i. Purchase information (purchase order and invoice number);
    ii. Type of discrepancy and requested action;
    iii. Product information (Vyaire catalog number, lot and/or batch number, and serial #s if applicable);
    iv. Quantity of material per the packing list unit of measure;
    v. Contact information (contact: name, email, telephone and fax number);
    vi. Copy of carrier bill of lading or delivery receipt signed by Customer receiving personnel which includes number of pallets received, any visible damage noted, and the seal number if a full truckload shipment;
    vii. If possible, include digital photos for damaged, incorrect or otherwise discrepant material
    viii. All proof of delivery requests for shipments must be made within thirty (30) days of invoice date. Any requests made after thirty (30) days will be denied and the invoice will be due and payable in full; and
    ix. To dispute or reopen a closed claim, all requests should be directed to customersupport@vyaire.com.
     

  7. Key Contact List
    a. Order Placement: orders.vyairemedical@process.esker.net  Fax: 1 (877) 781-2335, Phone:1 (833) 327-3284
    b. E-Business: Vyaire_EDI_support@vyaire.com, 
    c. Billing Inquiries: Credit.department@Vyaire.com, 
    d. Initiate a Claim, request a Return Authorization, and Dispute a Denied Claim: customersupport@vyaire.com.

EXHIBIT B

Vyaire’s Return Goods Policy
 

Return Goods 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 Goods Authorization (“RGA”) issued by Vyaire, including returns which are the result of a Vyaire error.
     
  2. In order for an RGA to be issued, the request must include the following information:
    - Purchase order number
    - Customer name and address
    - Reason for return 
    - Vyaire catalog number, lot/batch number, expiry date or serial number (if applicable)
    - Quantity per the packing list unit of measure terms
    - Contact name, email, telephone number​​ 
    - 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
    • Order Placement: orders.vyairemedical@process.esker.net  Fax: 1 (877) 781-2335, Phone: 1 (833) 327-3284
    • E-Business: Vyaire_EDI_support@vyaire.com, 
    • Billing Inquiries: Credit.department@Vyaire.com, 
    • Initiate a Claim, request a Return Authorization, and Dispute a Denied Claim: customersupport@vyaire.com.
       
  4. If such non-resale Product is returned a credit will not be issued and the Product will be destroyed.
     
  5. An RGA will only be issued to the original Customer ship-to location, or in the case of a drop ship order the Customer sold-to location that originally purchased the Product.
     
  6. Returned Product must be received in its original, unopened packaging and in salable condition within thirty (30) days of the issuance of the RGA to be eligible for full credit, minus the restocking fee. If returned Product is 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 Product is in saleable condition.
     
  7. Returns are to be shipped only to the designated Vyaire location indicated on the RGA form.  To the extent Products are not returned to the Vyaire location designated on the RGA, Customer shall not receive credit for said return.
     
  8. Customer pays the freight charges for all returns except as otherwise noted in Section 11.
     
  9. 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.
     
  10. For third party vendor drop-shipped Products, Customer is to follow all third party vendor return guidelines.
     
  11. Returns requested within one hundred eighty (180) days from Vyaire’s original shipment date are subject to a twenty-five percent (25%) restocking fee. Returns requested one hundred eighty-one (181) days or more from Vyaire’s original shipment date will be denied, such Product is not returnable, nor will credit be issued.