1. PRICE
All prices quoted are exclusive of all taxes (except taxes levied against Seller’s income) including state and local use, sales, property and similar taxes. Buyer shall be responsible for all such taxes, including sales, use and similar taxes. All prices are exclusive of transportation charges, insurance, and all freight, customs or license fees which are the responsibility of Buyer. All sales are subject to the approval of Seller’s credit department.
2. PAYMENT AND SECURITY TERMS
a. Unless otherwise agreed in writing, full payment is due thirty (30) days from the date of invoice.
b. If Buyer fails to pay any charges when due and payable, Buyer agrees that Seller shall have the right to invoice Buyer for, and Buyer will pay, all costs, including reasonable attorney fees, expended in collecting overdue charges plus a late payment charge to the maximum extent permitted by law but not to exceed 1.5% per month on the unpaid balance.
3. DELIVERY DATES
Seller shall use reasonable efforts to ship the goods prior to the proposed delivery date, but will not be liable for delays in meeting such date. Shipment and installation are, inter alia, subject to Seller’s production schedule and Buyer’s site preparation.
4. SHIPMENT AND RISK OF LOSS
a. All goods are shipped Ex Works Seller’s facility in Burlington, Massachusetts.
b. Title (other than software, which is licensed, not sold, and for which Seller retains all ownership rights) shall pass upon payment in full. BR c. Seller shall not be liable for any delay in performance hereunder due to unforeseen circumstances or due to causes beyond its control, including, but not limited to, acts of nature, acts of government, labor disputes, delays in transportation, and delays in delivery or inability to deliver by Seller’s suppliers.
5. RETURNS
Goods may not be returned to Infraredx under any circumstances without obtaining a Return Merchandise Authorization (“RMA”) number from the Infraredx. A re-stocking charge may be applicable.
6. INSPECTION, ACCEPTANCE AND TRAINING
a. Any claims for defective, damaged, or missing goods or components must be reported in writing by the Buyer within five (5) business days from date of discovery. For any claims validly and timely made, Seller shall reserve the right to repair or replace the defective, damaged or missing goods. Seller may use refurbished parts for repairs or replacement.
b. At no charge, Seller will provide in-service training at Buyer’s facility, necessary for the operation of the device. Completion of training shall be evidenced by the signature of the trainees of the Seller’s Customer Training Record. Additional training may be provided upon request, subject to approval by Infraredx.
7. WARRANTY
a. Seller hereby warrants that all goods sold by Seller are free from defects in material and workmanship. Seller warrants that under normal circumstances, durable equipment will remain free of defects for a period of one (1) year from installation and all disposable goods will remain free from defects for a period of ninety (90 days) from shipment.. Seller will repair or replace, at its discretion, all defective components during this warranty period. Any such replacement may include refurbished parts or components. After the termination of the warranty period, repair services may be purchased from Seller at its published rates. Extended warranty and service may, at Sellers option, be offered for an additional charge, in which event separate or additional terms and conditions may apply. This sub-section states Seller’s entire liability for Product warranty claims.
b. Seller shall make all necessary adjustments and repairs to keep the Equipment in good operating condition during Seller’s regular business hours. Service requested by Buyer to be performed at times other than Seller’s regular business hours shall be subject to Seller’s personnel availability and charged to Buyer at Seller’s overtime rate on the date such service is performed. Seller’s representatives shall have full access to the Equipment in order to effect the necessary adjustments and repairs.
c. Any applicable warranty period under this Section will begin on the date of initial installation as set forth in the Service Report Form signed by the parties upon installation of the Equipment.
d. The above warranties shall not apply to defects or damage resulting from misuse, negligence or accident, including, without limitation: operation by untrained operators; operation outside of the environmental specifications for the Equipment; improper or inadequate maintenance by the user; installation of software or interfacing not supplied by Seller; making of modifications to the instrument or the software not authorized by Seller; and making of repairs by anyone other than Seller or an authorized repair agent of Seller. If Seller determines that a repair or replacement claim was not caused by Seller or Seller’s authorized service personnel, then Buyer shall pay Seller for all related costs incurred by Seller. This warranty is not transferable without the express written consent of Seller. Seller is under no obligation to provide any services not specified in this Agreement.
e. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO WARRANTY, WHETHER EXPRESS OR IMPLIED, IS MADE WITH RESPECT TO THE EQUIPMENT OR DISPOSABLES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED BY SELLER.
8. LIMITATION OF LIABILITY
SELLER SHALL NOT HAVE LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING BUT NOT LIMITED TO ANY LIABILITY FOR THE EQUIPMENT NOT BEING AVAILABLE FOR USE, MISS DIAGNOSIS, LOST PROFITS, LOSS OF BUSINESS OR FOR LOST OR CORRUPTED DATA OR SOFTWARE. SELLER WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. IN NO EVENT SHALL SELLER BE LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AMOUNT INVOICED FOR THE GOODS WITH RESPECT TO WHICH DAMAGES ARE SOUGHT.
9. CLAIMS-NOTICE OF DEFECTS
In no event shall Seller be liable on any claims unless written notice of the claim is received by Seller within the following limitations: for shortages in weight and count, 15 days after delivery; for goods labeled with an expiration date, 15 days after use provided that such use occurs prior to the expiration date; for replacement parts, 15 days after discovery of defect or 120 days after installation, or 18 months from date of delivery, whichever is earlier; and for all other claims, 15 days after discovery of defect or 12 months from date of delivery, whichever is earlier. Buyer shall afford Seller prompt and reasonable opportunity to inspect all goods as to which any claim is made. If Seller and Buyer are unable to reach settlement of any claim relating to goods covered hereby, Buyer shall institute legal action against Seller within one year after such claim arises and thereafter all such claims shallbe barred notwithstanding any statutory period of limitations.
10. INDEMNIFICATION
a. Buyer and Seller shall indemnify, hold harmless and defend each other from and against any and all actions, suits, liabilities, claims, fines, damages, losses and expenses including reasonable attorney’s fees and expenses of litigation (the “Losses”), related to or arising from a) the injury of any person or the injury or destruction of any property arising out of and caused by the negligent acts or omissions of such party, any of its employees, subcontractors or authorized agents (collectively “Staff”); b) the material breach by such party of the terms and conditions of this Agreement; or c) violation of any law by such party or its Staff.
b. The indemnified party shall give the indemnifying party prompt notice of any claim that could give rise to a claim for indemnity under this Agreement and the indemnified party shall cooperate with the indemnifying party in the defense of any claim for which indemnity is provided. The indemnifying party shall be permitted to defend the claim and make all decisions thereto, including but not limited to hiring counsel of its choosing. The indemnifying party shall also have the sole right to settle any indemnified legal claim provided that it obtains a complete release for the indemnified party. This Section shall survive the termination or expiration of this Agreement for any reason.
11. LICENSES
All software is provided to the Buyer under a non-transferable and non-exclusive license for use by Buyer solely in connection with the use of the Equipment, The price of the license fee is included in the price of the Equipment. No title to or ownership of the software or any part thereof is hereby transferred to Buyer.
12. MISCELLANEOUS
a. Any required notices shall be given in writing to Seller at its facility at 34 Third Avenue, Burlington, Massachusetts 01803, Attn: VP of Sales and Marketing, and to the Buyer at the address as evidenced on the face hereof.
b. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided that the Seller may assign this Agreement and its obligations hereunder to any successor to its business by merger or consolidation or to any party acquiring substantially all of the assets of the Seller. Subject to the foregoing, the rights and obligations hereunder shall be binding upon the successors and assigns of both Seller and Buyer.
c. A party’s failure to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights or any rights hereunder. All Provisions of this Agreement are severable. If any provision or portion hereof is determined to be unenforceable by a court of competent jurisdiction, such provision or portion shall be modified to give the fullest possible effect to such provision and the remainder of this Agreement shall remain in full effect, provided that the general purposes of this Agreement remain reasonably capable of being effected.
d. If the Buyer exports from the U.S. the Equipment purchased hereunder, it shall assume all responsibility for obtaining any required export authorization and shall comply with all the applicable laws, rules and regulations of all governmental authorities, including, without limitation, the Export Administration Act. Buyer shall not export or re-export technical data supplied by Seller, or the direct product of such data in violation of applicable export regulations.
e. BUYER AGREES AND ACKNOWLEDGES THAT IT MAY USE THE EQUIPMENT ONLY FOR UNITED STATES FOOD & DRUG ADMINISTRATION (FDA)-APPROVED INDICATIONS.
f. Any disputes arising in connection herewith will be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts. The courts within the Commonwealth of Massachusetts shall have jurisdiction of all disputes hereunder and all objections to venue are hereby waived by Buyer. Buyer consents to service of process by certified mail addressed to the same address as that address designated for delivery of the goods purchased hereunder.
g. This Agreement may only be modified in writing signed by both of the parties authorized representatives, and which specifically purports to modify this Agreement.
h. Buyer is aware of its obligations and responsibilities under Federal and State laws (including Stark) with respect to “fraud and abuse” and the related Opinions and Guidelines of the DHHS Office of the Inspector General. Buyer hereby represents and warrants that to the best of Buyer’s knowledge, after due inquiry, its purchase of and payment for the Equipment pursuant hereto comply with, and its use of the Equipment hereafter will comply with, all applicable laws, rules and regulations.
i. Each party warrants that said party is not debarred or otherwise ineligible to participate in federal health care programs.
j. If Buyer’s purchase order contains a U.S. government contract number and orders goods to be used in the performance of said contract, those clauses of applicable U.S. government procurement regulations mandatorily required by federal statute to be included in U.S. government subcontracts shall be incorporated herein by this reference.
k. Buyer acknowledges and agrees that all transactions in connection with this Agreement are made in good faith on the basis of arms-length negotiation.
l. Buyer agrees that all pricing and other terms set forth in this Agreement are confidential and shall not be disclosed, disseminated, used or otherwise made available to any third party for any purpose including use as a basis for competitive solicitation.
13. CONDITIONS OF SALE
All sales and licenses of goods by Seller are subject to these Terms and Conditions. By submitting an order to Seller or by accepting delivery of goods or a component thereof, Buyer agrees to be subject to these Terms and Conditions. Any provision of Buyer’s order which is inconsistent with or in addition to these Terms and Conditions shall not be binding upon Seller unless Seller expressly agrees in writing to such provision. All quotations issued by Seller are subject to these Terms and Conditions. No quotation shall be valid unless in writing, and signed by Seller.
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