1. Application of Terms of Sale.
These Terms and Conditions of Sale (these “Terms”) govern all sales of products (the “Products”) by the Company to whom a Purchase Order is directed (“Seller”) by any purchaser thereof (each a “Buyer”) regardless of whether Buyer purchases the Products through the medium of written purchase orders or electronic orders (collectively, “Purchase Orders”). Upon receipt by Buyer of an express acceptance by Seller or upon commencement of performance by Seller (each an “acceptance”), these Terms and the Purchase Order, as modified by Seller’s acceptance or order acknowledgment, become a binding contract between Buyer and Seller (the “Sales Agreement”). In the event of a conflict between these Terms and the Purchase Order, these Terms shall prevail except where Seller has expressly agreed in writing to the conflicting term in the Purchase Order in its acceptance or order acknowledgment. In the case of a conflict between the Purchase Order and Seller’s acceptance or order acknowledgment, the acceptance or order acknowledgment prevails. While these Terms are fixed at the time of acceptance of a Purchase Order, these Terms are subject to change without notice from one Purchase Order to the next.
Unless specifically addressed in the Sales Agreement, any quoted price for the Products expires after thirty (30) days and does not include taxes or delivery charges. Accordingly, (i) taxes, charges, levies, duties, assessments and other fees of any kind imposed by any governmental authority and (ii) charges for handling, freight, shipping, packaging of Products or the cost of insurance from the time the Products leave Seller’s premises shall be added to the price payable by Buyer for the Products. Catalog prices are subject to change without notice.
Remuneration flowing between the parties hereunder: (i) is at fair market value for actual and necessary items furnished or services rendered; (ii) is based upon an arm’s-length transaction; and (iii) and does not take into account, directly or indirectly, the value or volume of any past or future referral or other business generated between the parties (or of any referral or business of any of their principals, affiliates, or immediate family members). The parties agree that it is not their intent that any payments made under the Sales Agreement be in return for the purchasing or ordering of any products or services other than the specific Products or services described in the Sales Agreement.
Any discount, rebate, and other price reduction (collectively “Discounts”) given by Seller to Buyer constitute a discount under applicable law (42 U.S.C. § 1320a-7b(b)(3)(A)). Seller’s invoice may detail the Discounts and the allocation of net purchase dollars appearing on that invoice. As applicable, each party hereto will report Discounts and provide information as required under 42 C.F.R. § 1001.952(h).
Payment is due in full sixty (60) days after Buyer’s receipt of Seller’s invoice for all products and thirty (30) days after Buyer’s receipt for all service and accessories. Invoices shall be issued upon or after the delivery of the Products to Buyer or Buyer’s agent; provided, however, that Seller’s credit department may, in its sole discretion, impose more stringent payment requirements, including requiring payment in advance or requiring provision of an irrevocable letter of credit.
Should Buyer become delinquent in payment of any sum due hereunder, Seller shall not be obligated to continue performance under the Sales Agreement. Any amounts not paid when due will be subject to a service charge of one and one-half percent (1.5%) of the amount due per month or the highest rate permitted by applicable law, whichever is less. Buyer shall pay all sales, use, value-added, excise, or similar taxes and duties applicable to the Products. In lieu of certain tax payments, Buyer may provide Seller with a tax exemption certificate acceptable to the taxing authorities. Buyer agrees to reimburse Seller for any such amounts which Seller incurs on behalf of Buyer. All payments to Seller shall be made in U.S. Dollars.
If any lot or parcel of Products is not accepted and/or paid for in accordance herewith, then Seller may, without prejudice to any other lawful remedy available to it, defer any further shipments until settlement is made and/or terminate the Sales Agreement.
4. Purchase Orders.
Buyer may, at its discretion, issue Purchase Orders at least ten (10) days prior to the requested delivery date; provided, however, that if Buyer issues a Purchase Order less than ten (10) days prior to the requested delivery date, or a Product is on back order, Seller will use its commercially reasonable efforts to meet such delivery date. Each Purchase Order will designate the desired quantities of Products, delivery dates, and destination. Each Purchase Order will be subject to acceptance or rejection by Seller. Seller specifically rejects any additional, different, or inconsistent terms or conditions proposed by Buyer in any Purchase Order.
Seller will deliver the Products to Buyer “Ex Works” (Incoterms 2000) Seller’s facility, freight prepaid by Buyer. Title to and risk of loss for Products will transfer from Seller to Buyer when the Products are loaded aboard the vehicle of Buyer’s designated carrier at Seller’s facility. Products may only be shipped to a single Buyer facility designated in writing to Seller and may only be changed once.
Seller may, by giving written notice of termination to Buyer, terminate and/or suspend its performance under any Purchase Order without penalty, for any reason or for no reason or if Buyer (i) fails to comply with any of Seller’s policies or any material provision of the Sales Agreement, and such condition is not promptly and fully remedied within thirty (30) days after written notice thereof; (ii) admits in writing its inability to pay its debts as they mature; or (iii) becomes bankrupt or insolvent, suffers a receiver to be appointed, or makes a general assignment for the benefit of creditors. This Section 6, Section 7 (Intellectual Property), Section 8 (Warranty and Disclaimer), Section 9 (Restrictions on Use), Section 10 (Liability), Section 11 (Confidential Information), Section 12 (Government Healthcare Programs), Section 13 (Force Majeure) and Section 14 (Miscellaneous) shall survive any termination, expiration, or cancellation of any Sales Agreement.
7. Intellectual Property.
As between Seller and Buyer, Seller retains all right, title, and interest in and to the intellectual property rights, including, without limitation, any and all patent, trade secret, copyright, trademark and service mark rights, relating to the Products, and Buyer shall have no rights with respect to such intellectual property.
8. Warranty and Disclaimer.
Seller warrants that it has not and will not provide anything under this Agreement that requires reporting under the Physician Payments Sunshine Act. Seller will provide its standard warranty support applicable to the Product(s) manufactured and branded by Seller. Products that are manufactured and branded by a company other than Seller shall be subject to the warranty and support offered by such other manufacturer, if any. If Products are purchased outside the United States or its territories, the Seller will impose a standard international warranty per Seller’s discretion.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 8: (I) SELLER PROVIDES THE PRODUCTS ON AN “AS IS” BASIS AND (II) SELLER EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND ARISING FROM OR RELATING TO THE SALES AGREEMENT, AND/OR THE PRODUCTS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
Seller’s warranty of any Product is of no effect if: (i) the Product is not stored or handled appropriately; (ii) the defect of the Product resulted from damages occurring after delivery of the Product; (iii) the defect of the Product has not been reported to Seller within warranty period; or (iv) the product was service by an unauthorized third party.
If a Product does not meet the applicable warranty and the warranty has not been invalidated by Buyer as set forth herein, then Buyer must promptly notify Seller. If Seller determines that the Product does not meet the applicable warranty, then Seller must, in Seller’s sole discretion, repair or replace the defective Product at no cost to Buyer. SUCH REPAIR, OR REPLACEMENT SHALL BE THE EXCLUSIVE REMEDY OF BUYER FOR ANY BREACH OF SELLER’S WARRANTY.
9. Restrictions on Use.
Use restrictions are conditions to the purchase of certain Products. Buyer must strictly comply with all use restrictions with respect to a Product that may be set forth in the Sales Agreement, Seller’s catalogue or website, on the Product, in any documentation or label accompanying the Product or otherwise provided in writing to Buyer (each a “Use Restriction”). For clarity, the Use Restrictions include Buyer’s compliance with all policies or procedures in effect (including, without limitation any Internet Sales Policy), all applicable federal and state laws and regulations including, without limitation, those applicable to the sale, resale and distribution of hearing devices via the Internet.
Any warranty granted by Seller with respect to the Products may be deemed void, at the sole discretion of Seller, if any Product covered by such warranty is used for any purpose not permitted hereunder or otherwise in violation of any Use Restriction.
Buyer shall not re-sell, assign, transfer or distribute the Products to any other reseller without express written permission to do so from Seller and Buyer shall not export the Products outside the country to which Seller delivers the Products.
NEITHER SELLER NOR ANY COMPANY OR PERSON AFFILIATED WITH SELLER, NOR ANY OF ITS OR THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, SELLERS OR LICENSORS (COLLECTIVELY, THE “SELLER PARTIES”) WILL BE LIABLE TO BUYER (OR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM BUYER’S RIGHTS) FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES OF ANY KIND, OR FOR ANY LOST REVENUES OR PROFITS, LOSS OF USE, LOSS OF COST OR OTHER SAVINGS, LOSS OF DATA, OR LOSS OF GOODWILL OR REPUTATION, WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING OUT OF OR RELATING TO THE PRODUCTS, THE USE THEREOF, OR OTHERWISE ARISING OUT OF OR RELATING TO THE SALES AGREEMENT, REGARDLESS OF WHETHER SELLER OR ANY OTHER SELLER PARTY WAS ADVISED, HAD REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
THE MAXIMUM, AGGREGATE LIABILITY OF SELLER AND THE OTHER SELLER PARTIES IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH ANY PRODUCT, THE USE THEREOF OR OTHERWISE ARISING FROM OR RELATING TO THE SALES AGREEMENT, WHETHER IN CONTRACT, TORT, INDEMNITY, BREACH OF WARRANTY OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL FEES PAID TO SELLER BY BUYER UNDER THE PURCHASE ORDER WITH RESPECT TO THE PRODUCT TO WHICH THE CLAIM RELATES.
Buyer shall defend, indemnify, and hold harmless the Seller Parties from and against any and all damages, losses, liabilities, costs and expenses (including reasonable attorneys’ fees) incurred or suffered by any Seller Party arising, directly or indirectly, from: (i) any fraud, negligence or misconduct by Buyer in connection with the Sales Agreement; (ii) any improper servicing, repair or transport of any Product; (iii) misuse or unintended use of any Product by Buyer; and (iv) any breach of the Sales Agreement by Buyer.
11. Confidential Information.
Buyer shall keep the Confidential Information (as defined below) of Seller in strictest confidence using a reasonable professional standard of care and in no event less than a reasonable degree of care under the circumstances and Buyer shall not, directly or indirectly, disclose any Confidential Information to any person or entity in any manner whatsoever, in whole or in part, and shall not use any Confidential Information, directly or indirectly, for any purpose other than for the sole purpose of performing in accordance with the terms of the Sales Agreement. Notwithstanding the foregoing, Buyer may disclose Confidential Information to a personal bank, trust, savings or financial institution but only to the extent necessary to obtain financing. If Buyer is requested or becomes legally compelled to disclose any Confidential Information by oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand or similar process or regulatory inquiries, Buyer shall provide Seller with prompt written notice of such event in order to afford Seller the opportunity to seek a protective order or other remedy. If such protective order or other remedy is not obtained for any reason, Buyer shall disclose only that portion of the Confidential Information that it is legally required to disclose (which determination shall be based upon the written advice of outside legal counsel) and shall exercise all reasonable means to obtain reliable assurance that confidential treatment will be accorded to the Confidential Information actually required to be disclosed.
“Confidential Information” shall mean proprietary or confidential information relating to the business of Seller that is not generally known and available to the public, other than through improper disclosures, and includes, without limitation: methods of doing business; production sources and pricing; financial statements; Discounts; budgets and projections; customer identities; affiliate identities; programs; servicing methods; manufacturing methods and costs; research and development; inventions; profit margins and pricing policies and practices; sales and marketing techniques; sales information; and information of Seller that Buyer knows or reasonably should know to be confidential or proprietary information of Seller. The Confidential Information of Seller includes, without limitation, the specifications and the pricing set forth in any Sales Agreement. Notwithstanding any other provision of the Sales Agreement, the restrictions set forth in this Section 11 shall not apply to any information that: (i) is or becomes generally known to the public through no fault of Buyer; (ii) is disclosed to Buyer by a third party legally entitled to make such disclosure; or (iii) is independently developed by Buyer without reference to any Confidential Information of Seller.
Buyer acknowledges that its breach of the provisions of this Section 11 may result in immediate and irreparable harm to Seller and that money damages alone would be inadequate to compensate Seller. Therefore, in the event of a breach of this Section 11, Seller, in addition to all other remedies available at law or in equity, immediately seek injunctive relief prohibiting the breach or threatened breach of this Section 11 or compelling specific performance without the need to post a bond or other security.
Upon the conclusion of the relationship between Buyer and Seller, Buyer will immediately destroy or return to Seller all copies of all Confidential Information.
12. Government Healthcare Programs.
Notwithstanding anything to the contrary contained in the Sales Agreement, any Products that are reimbursable by any federal or state healthcare program, including Medicare or Medicaid, are not eligible for the Discounts provided for in the Sales Agreement, if any.
Any Discounts provided for in the Sales Agreement are given in exchange for Buyer’s performance of its obligations thereunder. With respect to any Product or services provided by Seller in connection with the Sales Agreement for which payment may be made in whole or part by a federal or state healthcare program, Buyer will conduct its operations in a manner that exempts or would exempt, if the item or service was reimbursed under a federal rather than a state healthcare program, the administrative fee from the definition of “remuneration” under the Safe Harbor. In compliance with the Safe Harbor, Buyer will give notice to all persons who meet the federal definition of “provider” with respect to the rebates paid to it thereunder.
13. Force Majeure.
If the manufacture, transportation or delivery of any Products is prevented, restricted or interfered with by reason of any event or cause whatsoever beyond the reasonable control of Seller, including, without limitation, strikes, power outages, inclement weather, fire, government interference, and the like, Seller shall be excused from making deliveries hereunder to the extent of such prevention, restriction or interference. If by reason of any such event or cause, the quantities of the Products covered hereby, or of any materials used in the production thereof, reasonably available to Seller shall be less than its total needs for its own use and for sale, Seller may allocate its available supply of any such Products and materials among its existing or prospective purchasers and/or its own departments, divisions and subsidiaries in such manner as Seller deems proper, without thereby incurring liability.
a. Export Control. If applicable, each party shall comply with all applicable export control laws and regulations with respect to the Products sold hereunder.
b. Resolution of Disputes; Exclusive Forum. Any dispute, claim or controversy that directly or indirectly arises out of or relates to any Sales Agreement will be first negotiated in good faith by the parties. If such negotiations do not result in a mutually-agreeable resolution, either party may bring a claim against the other party, provided that such claim will be exclusively venued in the state or federal courts located in the State of New Jersey, U.S.A. Buyer and Seller hereby consent, agree, and submit to the exclusive jurisdiction of such courts for all suits, actions or proceedings directly or indirectly arising out of or relating to the Sales Agreement, and waive any and all objections to such courts, including but not limited to objections based on improper venue or inconvenient forum.
c. Assignment; Successors and Assigns; Third Party Beneficiaries. Buyer may not assign or otherwise transfer the Sales Agreement without the prior written consent of Seller and any purported attempt to do so shall be null and void. Notwithstanding the foregoing, Buyer may, without Seller’s consent, assign or transfer the Sales Agreement to: (i) any of its affiliates or (ii) in connection with a merger, sale of equity interests, sale of all or substantially all assets, or other change of control transaction involving Buyer or the business division of Buyer to which the Sales Agreement relates. The Sales Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Buyer and Seller are the sole beneficiaries of the Sales Agreement, and nothing in it shall be interpreted to confer a benefit upon any third party.
d. Entire Agreement. The Sales Agreement sets forth the entire understanding of the parties hereto relating to the subject matter thereof and supersedes all prior agreements and understandings between the parties relating to the subject matter thereof.
e. No Waiver; Modification. No course of dealing and no delay on the part of any party to the Sales Agreement in exercising any right, power or remedy conferred by the Sales Agreement shall operate as a waiver thereof or otherwise prejudice such party’s rights, powers and remedies conferred by the Sales Agreement or shall preclude any other or further exercise thereof or the exercise of any other right, power and remedy. No term or provision of the Sales Agreement may be amended, altered, modified, rescinded, supplemented, or terminated except by a writing signed by each of the parties thereto.
f. Severability. Any term or provision of the Sales Agreement that is invalid or unenforceable in any situation in any jurisdiction does not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision thereof is invalid or unenforceable, the parties thereto agree that the court making such determination has the power to limit the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and the Sales Agreement shall be enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties thereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that achieves, to the extent possible, the economic, business, and other purposes of such invalid or unenforceable term.
g. No Partnership. Nothing contained in the Sales Agreement will be construed to create a partnership or joint venture between the parties or to make a party an agent of the other party for any purpose.
h. Titles and Headings. The headings in the Sales Agreement are for reference purposes only, and shall not in any way affect the meaning or interpretation of the Sales Agreement.
i. Governing Law. The Sales Agreement, and any and all disputes, claims and controversies directly or indirectly arising from or relating to the Sales Agreement, will be governed by and construed under the laws of the State of New Jersey, U.S.A., without reference to its conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Sales Agreement.