1. General
All sales of goods and services (“Products”) by Traferox Technologies Inc. and/or Traferox Technologies Corp. (collectively, “Traferox”) to the purchaser of Products (“Customer”) in the United States are subject to the following terms and conditions.
2. Instructions for Use
Traferox sells Products that have received market authorization through agencies such as the U.S. Food and Drug Administration, Health Canada and other certification authorities. These Products are designed and authorized for use under the terms of the approved instructions for use (“IFU”). The IFU is included with and/or attached to each Product. For purposes of patient safety and efficacy, and in compliance with market authorization, it is important that all Products be used in accordance with the IFU. The use of Product in any manner not in compliance with the IFU may result in device failure, which in turn may result in patient injury, illness or death. Sterilization, where applicable for multiple use Products, in a manner inconsistent with the IFU may create a risk of contamination, infection, transmission which may result in patient injury, illness or death. Any Product sold by Traferox must be used as intended and approved, and in a manner consistent with the IFU. The Purchaser will indemnify Traferoxor all liabilities (including legal expenses), damages and costs incurred as a result of any use inconsistent with the IFU.
3. Warranty and Limitation of Liability
Traferox’s guarantee of the Products is strictly limited and is restricted to the identity of the Products, that their manufacture is in conformance with good manufacturing practices and applicable laws and that the Products are free from defects in material and workmanship. No other warranty or condition, statutory or otherwise, shall be implied, including without limitation, a warranty or condition as to the quality or fitness for a particular purpose. This warranty is limited to twelve (12) months from the date of delivery of the Products to Customer. This warranty does not apply to Products that have been subjected to alteration, misuse, damage or unauthorized, improper or inadequate servicing, maintenance, storage or otherwise used in a manner inconsistent with the Product’s IFU. Any warranty claim will be made in accordance with Traferox’s policy and procedures and subject to product qualityreview by Traferox and require Traferox’s prior written approval. Any warranty claim will be limited to Traferox providing a replacement Product or credit, as applicable. TRAFEROX’S LIABILITY ARISING IN CONNECTION WITH OR UNDER THESE STANDARD TERMS AND CONDITIONS (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT, TORT, MISREPRESENTATION, FRAUD, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LAW) WILL NOT EXCEED THE PURCHASE PRICE OF THE APPLICABLE PRODUCTS LESS DEPRECIATION OR IN THE CASE OF SERVICES, SERVICE FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM. NEITHER PARTY WILL BE ENTITLED TO ENTITLED TO, NOR WILL BE LIABLE FOR, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY NATURE, INCLUDING BUT NOT LIMITED TO, LOSS OF BUSINESS, PROFITS OR REVENUE OR BUSINESS INTERRUPTION.
4. Pricing & Taxes
All purchase orders will be filled and invoiced at the prices provided to Customer by Traferox based on the latest quotation for Products and/or Services (the “Quotation”). Prices do not include sales, use, value added, franchise, gross receipts, profits, excise, privilege, occupation, personal property, withholding and any other federal, state/provincial or local or foreign taxes, import or customs fees, tariffs and duties associated with an order (collectively “Taxes”). Customer will be liable for all Taxes applicable to the purchase of the Product.
5. Payment Terms
Unless otherwise provided on Traferox’s invoice, invoices must be paid in full by Customer thirty (30) days after the invoice date. Any amount not paid on time may be subject to a late fee of 1.5% per month prorated (18% per annum), or the maximum interest rate allowable by law, whichever is highest. Invoices are payable in full and no deductions or set-offs are permitted without prior written approval by Traferox. Traferox reserves the right, in its sole discretion, to assign Customer a credit limit and reserves the right to change the terms of payment, including requiring advance payment or cash of delivery. Customer must notify Traferox of any disputed invoice within fifteen (15) days of receipt. The notice of dispute must provide sufficient detail to Traferox regarding the basis and amount in dispute. If Customer does not provide written notice of a disputed invoice within the specified timer period, such invoice will be deemed to have been approved and accepted by Customer.
6. Order Acceptance and Supply Interruption
Traferox shall use commercially reasonable efforts to fill all purchase orders for Products. Traferox may, at its sole discretion, not accept any purchase order and/or allocate supply of Product among Customers. Traferox reserves the right to limit quantities or discontinue any Product without notice to Purchaser. Traferox is not liable for any loss resulting from its failure to supply Product to Purchaser, whether or not the inability to supply is under control of Traferox or not. Traferox reserves the right to refuse to accept orders from, or make any further sales of Product to, any Customer (and/or any of its affiliated) including failure to comply with these Standard Terms and Conditions.
7. Service Fees, Delivery Fees and Surcharges
Customer may request (i) the use of a Product in connection with organ procurement services, and/or (ii) the delivery of a Product by such authorized service providers. Customer agrees to an additional service fee being charged in addition to the pricing of the Product for such services. The standard fees are set forth in the Quotation but Customer accepts any additional non-standard fees that may be applicable to a given Customer request, including but not limited to, services being provided in remote areas and/or on an expedited/urgent basis. All service fees/surcharges are subject to change without notice. Customer will pay and reimburse Traferox for any transportation costs relating to Customer requested rush orders. Title and risk shall pass from Traferox to Customer when the Product is delivered to the Customer’s delivery location. Traferox may ship the Products at one time or in portions.
8. Precedence and Changes to terms
These Standard Terms and Conditions supersede all previous terms and are subject to change from time to time, without notice, at Traferox’s sole discretion. Traferox may provide Customers with notice of any such changes by posting updating terms and conditions, including effective date, on the Traferox website at www.Traferox.com. Traferox may assign any of its rights and obligations under these Standard Terms and Conditions without prior written consent of the Customer, including without limitation in connection with the sale or transfer of all or substantially all of its business or in connection with a merger or other consolidation with another entity.
9. Product Returns
Any and all product Returns must be pre-approved in writing by Traferox. Product returns must comply with the requirements set forth in Schedule “A”.
10. Compliance with Law
Customer represented and warrants that: (i) it will comply with all applicable laws and regulations of the various states/provinces and of the applicable country in the use of the Products, (ii) it is buying Products for internal use only and not for resale or export, and (iii) it will not, directly or indirectly, engage or assist in reverse engineering the Product or use the Product in any manner to assist the development of competitive products.
11. Miscellaneous
These Standard Terms and Conditions will be governed by and construed in accordance with the laws of the State of Delaware as applicable to all contracts made and to be performed in that state, without regard to conflicts of law principles. The Parties agree to the exclusive jurisdiction of courts in the State of Delaware. In the event that any provision of these Standard Terms and conditions is determined to be unenforceable or invalid, such provision will nonetheless be enforced to the fullest extent permitted by applicable law and such determination will not affect the validity and/or enforceability of any other remaining provisions.