ORDER CONFIRMATION TERMS AND CONDITIONS OF SALE
TERMS. Customer agrees to purchase and accept the Products in accordance with this Order Confirmation. THIS ORDER CONFIRMATION IS EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS STATED HEREIN. This Order Confirmation constitutes Seller’s acceptance of Customer’s order and this acceptance is expressly made conditional on Customer’s assent to the terms and conditions of this Order Confirmation as the only terms and conditions for this purchase and sale, unless Seller and Customer have a signed Supply Agreement in place that governs the terms and conditions of sale of the Products, in which case the Supply Agreement will govern. Acceptance of the Products sold hereunder by Customer shall constitute assent to these terms and conditions, and Seller hereby objects to and rejects any and all additional or different terms proposed by Customer, whether contained in Customer’s purchase order or shipping release forms or elsewhere. All proposals, negotiations and representations, if any, made prior hereto are superseded hereby.
PRICES AND TAXES. Except as otherwise specifically set forth on this Order Confirmation, prices quoted are in U.S. Dollars, F.O.B. shipping point. Prices exclude all applicable sales, use, excise or other taxes, duties or assessments, and the amount of any such taxes, duties or assessments which Seller may be required to pay or collect may be added to each invoice or separately invoiced by Seller to, and promptly paid by, Customer.
PAYMENT. Customer will pay Seller the full amount of each invoice when due without any offsets, deductions, or credits. Unless otherwise agreed in writing by Seller, all payments will be due net 30 days from the date of Seller’s invoice. If, in Seller’s judgment, Customer’s financial condition poses risk of payment, then Seller may make such shipment on a cash-in-advance basis, suspend its performance, or revoke its acceptance of Customer’s order. If Customer delays a shipment, then Seller shall have the right to demand payment 30 days from the date Seller is prepared to make shipment. Products held for Customer because of such delay in delivery shall be held at the risk and expense of the Customer. Past due invoices shall bear interest at the rate of one and one-half percent per month, or the maximum rate permitted by law, until paid in full. Customer shall be responsible for all costs and expenses incurred by Seller, including attorneys’ fees and costs of collection or enforcement of this Order Confirmation, whether incurred with or without litigation, on appeal or otherwise.
DELIVERY. Except as otherwise specifically set forth in this Order Confirmation, delivery will be made to Customer F.O.B. Seller’s warehouse (“Delivery”), with all shipping arrangements to be made, all shipping insurance to be obtained, and all shipping charges to be paid by Customer. ALL DELIVERY DATES ARE ONLY ESTIMATES. SELLER SHALL NOT BE LIABLE FOR ANY DELAY IN SHIPPING. SELLER WILL USE COMMERCIALLY REASONABLE EFFORTS TO FILL CUSTOMER’S ORDERS IN A TIMELY MANNER. LEAD TIME REQUIREMENTS AND DELIVERY DATES WILL VARY ACCORDING TO MANUFACTURING AND OTHER CONDITIONS. EACH SHIPMENT SHALL BE CONSIDERED A SEPARATE SALE. DELAY IN DELIVERY OF ANY SHIPMENT SHALL NOT RELIEVE CUSTOMER OF ITS OBLIGATION TO ACCEPT SUCH SHIPMENT. Seller assumes no liability in connection with shipment, nor shall any carrier be construed to be an agent of Seller. Customer shall pay a storage and handling charge for any Product left in Seller’s possession after notification to Customer that the Product is available to ship. In addition, Customer agrees to accept receipt of Product up to 10 days prior to the delivery due date.
TITLE AND RISK OF LOSS. Title to and risk of loss or damage to the Products will pass to Customer upon delivery to the carrier at the Delivery point. Until the purchase price for the Product has been paid in full, Customer grants Seller a security interest in the goods, as a whole and individually, together with any proceeds, including accounts receivable therefrom. In furtherance thereof, Customer authorizes Seller to file any necessary financing statements or other documents to evidence and perfect such security interest.
INSPECTION. Within 60 days after Customer’s receipt of Products, Customer will inspect all Products and immediately notify Seller of any Product defects. Failure to notify Seller in writing of any defects within such period will constitute conclusive proof that the Products were received by Customer without defects. Seller will not be responsible for any Product damage or loss that occurs during shipment. It is Customer’s sole responsibility to file any appropriate claims with the carrier and/or insurer for reimbursement or redress. Within 30 days after Customer’s receipt of Product, Customer will inspect such Products and immediately notify Seller in writing of any shortages or overages in the quantity of Products received. Such notice will reference Seller’s invoice or packing slip number. Seller shall not be liable for any shortages or overages that are not reported within such 30 day period.
SHORTAGES OR OVERAGES. Customer agrees to accept shortages and overages of up to 10% of the order quantity as specified in Customer’s purchase order. By way of clarification, if Customer’s purchase order is for 1000 Products, and Seller delivers 900 or 1100 Products to Purchaser, then Customer agrees to accept such shortage or overage.
PRODUCT RETURNS. All returns are subject to Seller’s approval and to the terms and conditions of Seller’s Product Return Policy. If Customer desires to return any Products, then subject to Seller’s Product Return Policy, and upon receipt of the Products in their original condition, Seller will credit Customer’s account, less a restocking fee, provided that the Products are returned with Merit’s written authorization within 45 days from invoice date of the original Delivery. The Products must be accompanied by the original packing slips and must include the Return Goods Authorization (“RGA”) number on the outside of the box. Customer shall package the Products in their original packaging, if possible, and in any event so as to prevent damage in shipping and shall insure against damage and loss. Seller will not charge a restocking fee to Customer if Seller determines that (i) the Products were defective at the time of Deliver, (ii) were shipped due to Seller’s error, or (iii) are subject to a recall required by a regulatory agency, unless the recall resulted from Customer’s actions and/or product(s). Seller will not accept the return of any Products that have been modified or refurbished. Customer may not return any Product without a RGA. Seller reserves the right to evaluate all returned Product and its decision concerning damage or defects shall be conclusive. If Seller determines that the Products were defective at the time of Delivery, then Seller will, at Seller’s option, either credit Customer’s account according to Seller’s then effective Product Return Policy, and in the amount of the invoice price paid by Customer, or ship replacement Products to Customer at Seller’s own expense as soon as reasonably practicable.
PRODUCTS ELIGIBLE FOR RETURN. Seller may accept the return of standard, unopened, non-tampered and non-expired products that Seller receives within 45 days from the invoice date of the original shipment order and that Seller determines to be in re-salable condition. Due to limited market demand, Seller will not accept the return of any custom products, which shall include products developed solely for Customer’s individual needs, special order products, including custom kits, custom parts, any Product with a non-standard or non-catalogued part number; or custom volumes of Products. Obsolete products, sterile products or discontinued products are not returnable.
CANCELLATION OF PURCHASE ORDERS. Subject to the terms and conditions of Seller’s Product Return Policy, Customer’s order for products may be cancelled within the same business day and without any expense to Customer, provided that the order has not yet been processed. The effective date of such termination is the date on which Seller receives a written termination notice from Customer. Customer will promptly pay for all Products delivered or services performed prior to the effective date of the termination. Customer will also pay Seller (a) the full contract price for all completed items as set forth on this Order Confirmation, (b) the actual costs incurred by Seller in proportion, under Seller’s accounting practices, to the terminated portion of such order, plus any special services, developing special tooling, purchasing special supplies and the like incurred in connection with the terminated order, and (c) all costs incurred by Seller as a result of such termination, including, but not limited to, Seller’s expenses, if any, incurred prior to receipt, or which cannot be reasonably avoided after receipt, of such notice of non-acceptance, repudiation or cancellation by Customer.
PRODUCT RECALL AND COMPLAINTS. Seller may be required by a United States federal, state, or local agency, or European agency, or other foreign regulatory agency to recall Product, or Seller may voluntarily initiate a recall of the Product. Customer and Seller each agree to immediately report to the other any complaints or other known information regarding the Product that may be caused by the manufacturing or distribution or that may lead to recall or other regulatory action. Seller requires the Customer to report all product complaints related to supplied Product and provide details as requested to facilitate failure investigations, including possible adverse event reports (MDR, MDVR and MPR). The Parties agree to keep each other fully informed of the progress and issues throughout any product recall; and to work together and assist each other in the recall or other quality-related issue, including without limitation, making all applicable records available for examination and copying. Customer shall pay for all of Seller’s direct reasonable costs associated with the recall to the extent the recall is due to the actions or omissions of Customer.
CONFIDENTIAL INFORMATION. In connection with Customer’s purchase of Products from Seller, Seller may disclose to Customer confidential business information of Seller, including, but not limited to, customer and prospective customer information, specifications of Seller’s Products, product concepts, marketing and strategic plans, pricing information, sales and financial information, future plans, and other marketing and business information which is the confidential, proprietary business information of Seller (the “Confidential Information”). Customer shall not, under any circumstance, reveal or make available to any person or entity any of Seller’s Confidential Information except for the limited purpose of the transactions contemplated by Customer’s order of Product from Seller and Customer agrees that it shall never use or exploit any such Confidential Information to the detriment of Seller.
LIMITED WARRANTY AND DISCLAIMER. Seller makes no representation or warranty of any kind, express or implied, with regard to Products sold by Seller hereunder except that such Products shall materially conform to Seller’s specifications (“Product Specifications”) at the time of delivery to Customer and will remain materially free from defects in workmanship and material for the period specified in the Product Specifications. Seller hereby objects to and rejects any and all specifications of Customer (“Customer Specifications”), unless such Customer Specifications have been expressly agreed to by Merit. Seller’s sole obligation and liability for, and Customer’s exclusive remedy with respect to any Product which, in Seller’s judgment, fails to meet such Warranty shall be to, at Seller’s option, either repair or replace such Product at the Delivery point at no charge to Customer or to issue Customer a credit for any such Product in the amount of the original invoice price. Such obligation shall be conditioned upon receipt by Seller of written notice from Customer of any alleged nonconformance to Product Specifications within 45 days after Delivery to Customer and of any alleged defect in material or workmanship within 45 days after Customer receives the Product. Claims must be made promptly within such period and Seller must be given a reasonable opportunity to investigate and cure such nonconformance or defects. Products which Seller consents or directs in writing to be returned shall be returned to Seller, freight prepaid, F.O.B. Seller’s warehouse or other destination directed by Seller in accordance with Seller’s standard return policies. The foregoing warranty is expressly conditioned upon, and shall not apply to, Products that have been repaired, refurbished or reprocessed, other than with Seller’s written authorization and by Seller’s approved procedures, that have been (i) altered, changed or modified other than by Seller, (ii) repaired other than by Seller or with Seller’s authorization and by Seller’s approved procedures, (iii) subjected to misuse, abuse, tampering, neglect, improper maintenance, negligence or accident, (iv) damaged by excessive physical, environmental or electrical stress, (v) combined with any other product, (vi) used contrary to use in the Product Specifications or in an application or environment for which such Product was not designed or contemplated, or (vii) that have had a serial number or any part thereof altered, defaced or removed. Customer agrees that any technical product advice furnished by Seller with reference to the use of the Products is provided without warranty, duty or compensation of any kind and Seller assumes no obligation or liability therefor, all such advice being given and accepted strictly “AS IS” and at Customer’s sole risk. THE FOREGOING WARRANTY IS EXCLUSIVE AND SELLER MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER TO CUSTOMER, ITS END-USERS OR ANY THIRD PARTIES WITH RESPECT TO THE PRODUCTS AND HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF NON-INFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EVEN IF SELLER IS AWARE OF SUCH PURPOSE.
LIMITATION OF LIABILITY. SELLER’S SOLE AND EXCLUSIVE LIABILITY FOR ANY BREACH OF THIS ORDER CONFIRMATION OR ANY OTHER CLAIMS RELATING TO THE PRODUCTS SHALL BE LIMITED TO EITHER REPAIR OR REPLACEMENT OF ANY DEFECTIVE PRODUCTS AS PROVIDED HEREIN, OR A REFUND OF THE PURCHASE PRICE, AT SELLER’S OPTION. UNDER NO CIRCUMSTANCES, REGARDLESS OF THE FORM OF ACTION, SHALL SELLER BE LIABLE TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED UPON LOST GOODWILL, LOST RESALE PROFITS, WORK STOPPAGE, PRODUCT FAILURE, IMPAIRMENT OF OTHER PRODUCTS OR OTHERWISE AND WHETHER ARISING OUT OF BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE.
FORCE MAJEURE. Seller shall not be liable for damage or loss occurring as a result of any delay or failure of performance due to any cause beyond Seller’s control, including, without limitation, any act of God, act of Customer or any of its representatives or agents, embargo or other governmental act, regulation or order, fire, flood, freezing, storm, accident, explosion, strike, slow down, labor disturbance, war (whether declared or not), riot, delay in transportation, inability to obtain necessary labor, materials, fuel or manufacturing facility problems or any other circumstance whether similar or dissimilar to the foregoing. In the event of such delay or failure, the date of delivery shall be extended for a period equal to the time lost by reason of such delay or failure. In no event shall the obligation of Customer to pay for delivered Products be suspended. In addition, if due to any such cause Seller is unable to produce sufficient goods to meet all demands from customers and internal uses, Seller shall have the right to allocate production among its customers and plants in any manner which Seller may determine to be equitable.
INDEMNIFICATION. Subject to the conditions set forth in this paragraph, Seller shall, at its own expense, defend or, at its option, settle, any claim, suit or proceeding brought against Customer claiming that any Product supplied by Seller to Customer in accordance with this Order Confirmation infringes on any valid United States patent. Seller’s obligations contained in this paragraph shall be subject to the conditions that Customer (a) promptly notify Seller in writing of any such claim, suit or proceeding promptly after Customer shall have received notice or obtained knowledge thereof, and (b) at Customer’s expense, provide Seller full information and assistance as requested by Seller in such defense. In the event of any such claim, suit or proceeding, Seller reserves the right, at its option and in lieu of any other obligations or responsibilities under this paragraph, to modify or replace the affected Product to eliminate the alleged infringement, to obtain a license to cure the alleged infringement or to give Customer a refund of the price of the affected Product less an appropriate amount for depreciation. Seller shall have no liability under this paragraph or otherwise for any alleged infringement arising out of: (i) the combination of any Product with any other product whether or not furnished to Customer by Seller; (ii) the modification of any Product unless such modification was made by Seller; (iii) use of any Product in an application or environment for which such Products were not designed or contemplated; or (iv) any claim of infringement of a patent in which Customer or any affiliate of Customer has an interest or license. SELLER SHALL NOT BE LIABLE FOR ANY COSTS OR EXPENSES INCURRED WITHOUT SELLER’S WRITTEN AUTHORIZATION, AND IN NO EVENT SHALL SELLER’S TOTAL LIABILITY TO CUSTOMER UNDER, OR AS A RESULT OF COMPLIANCE WITH, THE PROVISIONS OF THIS PARAGRAPH EXCEED THE AGGREGATE SUM PAID TO SELLER BY CUSTOMER FOR THE ALLEGEDLY INFRINGING PRODUCT. The foregoing states the entire responsibility of Seller, and the exclusive remedy of Customer, with respect to any alleged intellectual property right infringement or violation by a Product, and Seller shall in no event be liable for loss of use or for incidental, indirect or consequential damages, whether in contract or in tort, by virtue of any such infringement or violation. No sale of Products to Customer shall convey any license by implication, estoppel or otherwise under any proprietary or patent rights of Seller, all of which are exclusively retained by Seller.
TERMINATION BY SELLER. Time is of the essence as to the Customer’s performance of its obligations hereunder. Seller may, in addition to its other rights and remedies at law or in equity, immediately terminate any obligation to Customer with respect to the sale of the Products by notice to Customer if in
Seller’s judgment: (a) Customer fails to make any payment on the date due or to accept delivery of any shipment; (b) Customer makes a general assignment for the benefit of creditors; (c) Customer admits in writing its inability to pay its debts as they mature; (d) a trustee or receiver of all or a substantial part of Customer’s assets is appointed by any court; (e) any bankruptcy or reorganization proceeding is instituted by or against Customer; (f) Customer becomes insolvent or unable to pay its debts as they mature; (g) in the event delivery is dependent on Customer’s cooperation, Customer fails to cooperate in effecting delivery at the time agreed upon, or absent such agreement, at the time fixed by Seller; or (h) Seller has reasonable basis for insecurity with respect to Customer’s performance of its obligations to Seller and Customer fails to provide to Seller adequate assurance of Customer’s performance within 10 days of Seller’s demand for such assurance. Seller may also terminate any such obligation to Customer on 10 days’ notice for any failure of Customer to comply with any of its other obligations to Seller contained in this Order Confirmation; provided that such failure shall not have been corrected during such 10-day period. Seller, at its option and in addition thereto, may also make all unpaid amounts immediately due and payable. The occurrence of any of the foregoing shall be a material breach by Customer of this Order Confirmation. Seller shall be entitled to pursue all of its rights and remedies against Customer arising out of any such breach and/or termination, and Customer shall be responsible for all costs and expenses incurred by Seller, including attorneys’ fees and costs of collection or enforcement of this Order Confirmation, whether incurred with or without litigation, on appeal or otherwise.
EXPORT/ IMPORT CONTROLS. Customer will comply with all applicable export/import laws, including obtaining licenses and other import certifications. Customer will not assist or engage in the diversion of products to any country to which the U.S. has embargoed or restricted the export of goods or services. Customer agrees not to export, directly or indirectly, U.S.-origin products to any person or entity that has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. Customer warrants and represents that neither the U.S. Bureau of Export Administration nor any other U.S. federal agency has suspended, revoked, or denied its export privileges.
REGULATORY COMPLIANCE. The Parties will comply with all applicable laws, regulations, rules, requirements and ordinances of all governmental authorities, including but not limited to ISO requirements, the U.S. Food and Drug Administration (or its foreign equivalent) applicable to the use, re-use, manufacture, sale, distribution, transportation, exportation or importation of Products for its particular roles and responsibilities hereunder. Customer is solely and exclusively responsible for complying with all regulatory obligations for sale and/or use of Products. Customer represents and warrants that it will maintain all applicable licenses, permits and other approvals necessary to sell, manufacture, distribute, transport, export, import and ship the Products; pack and ship the Products only to authorized purchasers and end-users at authorized locations in accordance with all applicable governmental authority requirements, including but not limited to those concerning labeling, advertising, off-label uses, promotion tracking and reporting and record keeping (e.g. complaints, adverse reactions, recall information); and ensure that the packaging and labeling, and transportation method and carrier chosen are appropriate for each Product. It shall be Customer’s obligation to ensure that the Products are qualified for sale and use in the applicable territories and Customer shall not sell any Products until such Products are fully qualified under all applicable law for sale and use within each applicable territory. Additionally, Customer shall ensure that the Products are not used outside Merit’s intended use, which includes the prohibition of Product re-use.
MISCELLANEOUS. All notices shall be in writing. Customer may not assign any of its rights or interest under this Order Confirmation without the prior written consent of Seller. This Order Confirmation shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns. Seller and Customer are independent contractors, and their relationship is not one of principal and agent. No act or obligation of either party is in any way binding upon the other party. In the event of any default by Customer, Seller may decline to make further shipments. If Seller elects to continue to make shipments, such action shall not constitute a waiver of any default by Customer or in any way affect Seller’s legal remedies for any such default. No failure by Seller to enforce at any time any provision of this Order Confirmation shall be construed as a waiver of Seller’s right thereafter to enforce each and every such provision. This Order Confirmation contains all of the terms and conditions governing the sale and purchase of the Products and may not be modified or amended except by an agreement duly executed by the parties and specifically stating that it is a modification of the terms and conditions in the Order Confirmation. No course of prior dealings between the parties and no usage of trade shall be relevant or admissible to supplement, explain or vary any of the terms and conditions set forth herein. No representations, understandings or agreements have been made or relied upon other than those specifically set forth herein. The sale of Products shall be governed by the laws of the State of Utah and any action arising out of or related to such sale shall be brought and maintained exclusively in the state and federal courts situated in Salt Lake County, Utah. If any provision of this Order Confirmation shall be adjudged by any court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such adjudication shall not affect or modify any other provision of this Order Confirmation.