1. AGREEMENT OF SALE; APPLICATION OF TERMS AND CONDITIONS. The purchaser (the “Purchaser”) hereby agrees to purchase the products sold by InterRad Medical, Inc. (the “Seller”), in accordance with the terms and conditions set forth herein (the “Terms and Conditions”). For purposes of clarity and the avoidance of doubt, these Terms and Conditions shall apply to any Purchase Order, Quote, Acknowledgement, Invoice and/or similar instrument relating to the purchase of products by the Purchaser from the Seller (each, an “Order Document” and collectively, the “Order Documents”).
2. USE OF PRODUCTS. By execution of a final Order Document with the Seller for the purchase of products, Purchaser acknowledges and agrees that it may only use the products purchased from Seller under such applicable Order Document(s) pursuant to these Terms and Conditions and in accordance with the Instructions for Use (“IFU”) applicable to each such product, and that it has received a copy of the IFU for each such product or may access the IFU online.
3. PRICES. The prices set forth on any Quote, Acknowledgement, Invoice and/or any other Order Document other than a Purchase Order are based on the price in effect at the time of delivery against the Purchase Order, remain valid only until the date set forth in the “Valid Until” date field, and may be revised by the Seller, at any time prior to acceptance of an order and subsequent delivery to Seller. Unless otherwise explicitly set forth therein, the prices set forth on any Order Document are exclusive of all sales and use taxes, license fees, registration fees or other charges, all of which are the responsibility of Purchaser. Seller may revise any prices herein specified on any unshipped products by giving Purchaser written notice thereof. If Purchaser is unwilling to accept the revised price(s), Purchaser shall so notify Seller in writing prior to the date on which such products are shipped, otherwise, Purchaser will be deemed to have agreed to such revision. In the event Purchaser does so notify Seller that it is unwilling to accept the revised price(s), Seller shall have the option to either (i) perform delivery of the products at the original prices set forth on the applicable Purchase Order or (ii) cancel that portion of the order as it relates solely to the products which Seller has rejected in accordance with the foregoing.
4. PAYMENT. Subject to the following, the terms of payment shall be net thirty (30) days from the date of the applicable Purchase Order. In addition to any other rights that Seller may have under applicable law or other agreements, Seller may at any time after or suspend credit or refuse to ship products or cancel unfilled orders when, in Seller’s opinion, the financial condition of Purchaser or the status of Purchaser’s account warrants such action. Purchaser shall not withhold payment of the purchase price in whole or in part by way of set off of any counterclaim Purchaser may have against Seller. In the event of default, in addition to all remedies available to Seller at law or as otherwise herein, Purchaser will be responsible for all of Seller’s costs of collection, including, but not limited to, reasonable attorney’s fees and costs.
5. TITLE TO WORK; SECURITY AGREEMENT. As security for the full payment of the Purchase Price, Purchaser hereby grants to Seller a security interest in the products and all proceeds thereof. Purchaser authorizes Seller to execute and file financing statements covering the products set forth on the applicable Purchase Order. The products are held by Purchaser at its risk and expense, with no abatement in any obligation on Purchaser’s part in the event of loss or damage.
6. RISK OF LOSS; DELAYS. All orders are delivered Ex Works (https://incodocs.com/blog/exw-incoterm/), Seller’s facility in Plymouth, Minnesota. Seller shall not be liable for damages by reason of failure to or delay in delivery of the products occasioned by causes beyond Seller’s control, including strikes, lockouts or other labor trouble, accident, fire, flood or other casualties, inability to obtain labor, materials or shipping facilities, breakdowns, delay or failures of carriers or suppliers, riot, civil insurrection, or government acts or regulations. Upon the occurrence of any of the aforesaid events, Seller may cancel unfilled orders by giving written notice thereof.
7. ACCEPTANCE; RETURN OF PRODUCTS. Purchaser has the right to inspect products for a period of thirty (30) days from the date on which Purchaser takes possession of the products in accordance with Section 5 above, and Purchaser shall be deemed to have accepted the products in the event no notice to the otherwise has been provided by such date. If Purchaser rejects all or any of the products, Purchaser has the right to return the products to Seller, at Purchaser’s expense, for a full refund thereof, provided, that, (a) Purchaser receives authorization from Seller to return the applicable products prior to such return, (b) all products (including all packaging in which they were delivered) to be returned are in good, useable and re-sellable condition, sterile packaging must not be altered or damaged, and (c) Purchaser pay to Seller a re-stocking fee in an amount equal to five percent (5%) of the price paid by Purchaser for such products. Seller shall have thirty (30) days to inspect the returned product, confirm it is resellable before issuing the credit for the original order and invoice for the restocking fee.
8. LIMITATION OF LIABILITY. EXCEPT FOR THE PRODUCT WARRANTY PROVIDED BY SELLER WITH THE PRODUCTS, THE PRODUCTS ARE PROVIDED AS-IS, WITH ALL FAULTS, AND ALL ORAL OR IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED. THE MAXIMUM LIABILITY, IF ANY, OF SELLER FOR ALL DAMAGES, INCLUDING, WITHOUT LIMITATION, CONTRACT DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, INDEMNITY, BREACH OF AN OBLIGATION TO REPAIR, REPLACE OR OVERHAUL, NEGLIGENCE OR OTHER TORT, STRICT LIABILITY OR OTHERWISE, IS LIMITED TO AN AMOUNT NOT TO EXCEED THE PURCHASE PRICE OF THE PARTICULAR DEFECTIVE PRODUCT(S). NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL SELLER HAVE ANY LIABILITY TO PURCHASER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, REVENUE, OR PROFIT OR FOR ANY LOSS OF USE, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, OTHER CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE.
9. APPLICABLE LAW.
a. Governing Law; Venue. All Order Documents (including these Terms and Conditions) shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to its conflicts of laws principles. Any legal suit, action or proceeding arising out of or based upon the any Order Document or the transactions contemplated therein and/or hereby may be instituted only in the federal courts of the United States of America or the courts of the State of Minnesota in each case located in the city of Plymouth and county of Hennepin, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
b. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, SELLER AND PURCHASER HEREBY KNOWINGLY AND VOLUNTARILY WAIVE ANY RIGHTS THAT EITHER OF THEM MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY DISPUTE, CLAIM OR CONTROVERSY BASED ON ANY ORDER DOCUMENT(S) OR THE PRODUCTS, OR RELATING TO, ARISING OUT OF, UNDER, OR IN CONNECTION WITH ANY ORDER DOCUMENT(S) OR THE PRODUCTS, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (ORAL OR WRITTEN), OR ACTIONS OF SELLER OR PURCHASER RELATING TO ANY ORDER DOCUMENT(S) OR THE PRODUCTS.
10. MISCELLANEOUS.
a. Notices. Unless otherwise specified herein, all notices, requests and other communications to any party shall be in writing (including email, telecopies, facsimile transmissions, and similar writings) and shall be given to such party at the address, telephone number or email address set forth on the applicable Purchase Order, or such other address, telephone number or email address as such party may hereafter specify for that purpose by notice to the other party.
b. Severability. If any provision of any Order Document(s) and/or these Terms and Conditions conflicts with any statute or rule of law of any jurisdiction wherein it may be sought to be enforced, then such provision shall be deemed null and void to the extent that it may conflict therewith, but without invalidating the remaining provisions hereof.
c. Entire Agreement. These Terms and Conditions take precedence over Purchaser’s additional or different terms and conditions, to which notice of objection is hereby given. The applicable Order Documents (including these Terms and Conditions) sets forth the entire agreement and understanding between Seller and Purchaser regarding the subject matter hereof and supersedes and merges any, prior agreements, discussions or understandings. No modification of any Order Document shall be binding upon Seller unless it: (1) is in writing; (2) is signed by an authorized representative of Seller; and (3) refers to the specific Order Document(s) and/or the portion(s) thereof it is intended to modify. No additional or different terms set forth in any Order Document, acknowledgements or other forms of correspondence shall be of any force or effect with respect to the matters covered by any such applicable Order Document(s), regardless of whether any goods are sent or services are performed in accordance therewith.
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