GENERAL TERMS AND CONDITIONS OF SALE
Status: November 2018
sfm medical devices USA, Inc., a Virginia corporation ("sfm medical") and the customer ("Purchaser") hereby agree that these General Terms shall govern all of Purchaser’s purchases of Products from sfm medical, and shall also apply to all quotations, orders and contracts for sfm medical’s Products. These General Terms are hereby incorporated into and made a part of any other future contract which will be entered into by and between the parties by this reference, and the defined terms contained in these General Terms shall have the meaning ascribed to them in any other contract by and between the parties.
1. ACCEPTANCE OF GENERAL TERMS/CONTROLLING PROVISIONS
sfm medical's sale of any and all Products to Purchaser is expressly made conditional upon Purchaser’s agreement to and acceptance that these General Terms set forth the sole and exclusive agreement (the "Contract") between Seller and Purchaser, and shall supersede all prior agreements, understandings and representations, whether oral or written, between the parties. Such agreement and acceptance shall be deemed given unless Purchaser notifies sfm medical in writing of its objection to any term or condition stated herein within ten (10) business days following Purchaser’s receipt of (i) sfm medical’s written sales acknowledgement or order confirmation, or (ii) the Products, whichever is earlier. THE CONDITIONS CONTAINED HEREIN SHALL TAKE PRECEDENCE OVER ANY OTHER CONDITIONS AND NO CONTRARY, ADDITIONAL OR DIFFERENT PROVISIONS OR CONDITIONS SHALL BE BINDING ON SFM MEDICAL UNLESS EXPRESSLY ACCEPTED BY SFM MEDICAL IN A WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SFM MEDICAL. In the case of sales outside of the United States of America, Purchaser and sfm medical expressly agree that the provisions of the U. N. Convention on the Sale of Goods (C.I.S.G.) are herewith excluded.
2. RETENTION OF TITLE
sfm medical shall retain title of ownership to all Products that it delivers until Purchaser settles all of sfm medical’s accounts and claims in full. Until Purchaser settles all of sfm medical’s accounts and claims in full, such goods shall be considered “Reserved Goods”. sfm medical’s retention of title shall also extend to Reserved Goods that Purchaser has subsequently sold if sfm medical has pending claims against Purchaser. If Purchaser sells the Reserved Goods without first settling its account with sfm medical, Purchaser will be deemed to have assigned the amount of the Price to sfm medical plus and additional ten percent (10%) to cover the costs of collection and processing. Any disposition of the Reserved Goods, including but not limited to liens, assignments by way of security, or surrender by barter, shall not be permitted until Purchaser has paid sfm medical in full for the Products, or unless sfm medical otherwise consents in writing. Purchaser agrees to notify sfm medical of any seizure by third-parties of any Reserved Goods. Purchaser shall bear the cost of any actions which may be required to pay sfm medical for the Price of the Products. If sfm medical determines that Purchaser’s ability to pay the Price is at risk, sfm medical shall be entitled to request the return of the Reserved Goods. Purchaser agrees to insure all Reserved Goods at its expense for loss. Purchaser agrees to provide sfm medical any and all information and documents which are necessary for the collection of sfm medical’s claims. Purchaser shall immediately notify sfm medical of any claims to be made against sfm medical’s Reserved Goods. Purchaser agrees to assign to sfm medical any claims against third-parties for damage to delivered Reserved Goods, and Purchaser agrees to cooperate with sfm medical in pursuit of these claims.
3. PACKAGING AND SHIPPING
The Parties agree that sfm medical will not credit Purchaser for the return of disposable packaging. sfm medical agrees to provide Purchaser with pallets and other returnable packaging solely on a loan basis. sfm medical reserves the right to select shipping routes and methods which sfm medical decides will incur the lowest costs.
4. DELIVERY AND TRANSFER OF RISK
For all sales under these General Terms, the Products shall be deemed delivered as soon as the goods leave sfm medical’s dock (ex works). The risk of loss or damage shall transfer to the shipping agent or to Purchaser as soon as the goods leave sfm medical’s dock. sfm medical shall have no obligation to provide insurance. IN THE EVENT THAT SFM MEDICAL MAKES PARTIAL SHIPMENTS, FAILS TO COMPLY WITH DESIGNATED DELIVERY DATES, OR OTHERWISE FAILS TO PERFORM ITS OBLIGATIONS FOR REASONABLE SHIPMENT OR DELIVERY OF PRODUCTS IN ACCORDANCE WITH ANY TIME LIMITS SET FORTH HEREIN, SFM MEDICAL SHALL NOT INCUR ANY LIABILITY WHATSOEVER FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS OR PURCHASER’S CUSTOMER’S CLAIMS ARISING OUT OF, OR RELATING TO, CHANGES IN DELIVERY DATES, PARTIAL SHIPMENTS OR UNTIMELY PERFORMANCE) WHICH MAY BE INCURRED BY PURCHASER, EVEN IF PURCHASER WAS AWARE OF OR HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
Unless otherwise agreed, we additionally reserve the right to deliver quantities within a tolerance of ±10% of the ordered quantity for orders of customer specific products.
5. PRODUCT INSPECTION AND ACCEPTANCE
Purchaser shall be obligated to diligently check and verify the type, quantity and quality of Products delivered in a timely manner and without undue delay following the receipt of delivered Products. Purchaser shall be obligated to provide written notice to sfm medical of Product defects within five (5) calendar days after the discovery of any defect. If a defect cannot be promptly identified when the Product is delivered, Purchaser shall notify sfm medical of the defect reasonably promptly after the defect becomes known to Purchaser but in all cases within thirty (30) days after delivery, after which Products shall be deemed to have been delivered free of defects. Purchaser shall only be permitted to assert a defect notification if the defect asserted affects the usability of the Product, and shall not be permitted to assert claims for minor deviations from the quality agreed upon by the Parties or if there is not material impairment of usability. If Purchaser gives a notification of defects which is subsequently found to be unwarranted or without justification, sfm medical shall be entitled to request and be reimbursed for all expenses incurred by it as a result of such notification.
6. RETURN OF PRODUCTS
Purchaser may not return Products unless it has first obtained sfm medical’swritten approval to accept such Products, which sfm medical shall not unreasonably withhold. sfm medical is entitled to refuse to accept Products returned without its prior written approval. Products shall be returned at Purchaser’s expense. Purchaser shall bear all costs for repairs conducted outside of the warranty period or not otherwise covered by the warranty.
7. PRODUCT WARRANTY CLAIMS
To the extent that sfm medical receives a defect notification from Purchaser, sfm medical shall have the option to remedy the defect at its expense or substitute delivery of other Products. sfm medical shall bear the expenses required for remedying a material defect, including the costs for work and material and for transport of Products to Purchaser, provided that such costs do not increase due to having to transport the Product to a location other than the business offices of Purchaser initially specified in the confirmed Purchase Order. Purchaser may only assert a claim for damages and not for specific performance to remedy any Product defect. sfm medical shall have the right to reduce the purchase price in connection with an asserted claim for a Product defect, or, if the defect is material and not subject to remedy to limit damages to the purchase price of the Product in question. Purchaser’s aforesaid remedies are exclusive, and Purchaser shall not be entitled to any other remedies or damages. sfm medical shall not be liable for defects in quality which are due to design or manufacturing specifications of Purchaser. Furthermore, sfm medical shall not be liable for defects in any sterile Products which are meant to be single or one-time use Products („Disposable Products“), if and when such Disposable Products are being re-used by Purchaser or any third party. sfm medical shall likewise not be liable for damage which results from the fact that Purchaser integrates or combines the Products into/with its end products. Furthermore, the warranty provided by these General Terms does not cover damages or defects that arise, are caused by or result from (i) unauthorized alternations, repairs, or maintenance of the Products, (ii) negligence, accident, misuse, or improper, unsuitable or abnormal usage of the Products, (iii) failure to conform strictly to sfm medical’s specifications in connection with the installation, operation, maintenance or repair of the Products, (iv) unauthorized modification of the Products, or (v) exposure of the Product to unreasonable temperature or conditions, including but not limited to any vandalism, riots, or explosions. In the event that the Products are altered, modified or repaired by Purchaser or any other third party without the prior written approval of sfm medical, all warranties hereunder shall be terminated and of no effect. Purchaser agrees and acknowledges that any and all modifications to the Product, even if expressly authorized by sfm medical, are made at Purchaser’s sole risk and responsibility. All product information in sfm medical’s brochures, price lists, advertising or other materials shall not be deemed to make any warranty, express or implied. Any samples furnished by sfm medical to Purchaser are solely for the purpose of evaluating the suitability of such material or potential use and, as such, are not intended to serve as warranties of any type, either express or implied. Tolerances or variations normal in the trade with regard to dimensions, quantities, weight, quality, color, etc. shall not warrant justification for complaints under this Warranty.
8. CHANGES IN/DISCONTINUATION OF PRODUCTION
Notwithstanding any obligation to supply Products for confirmed Purchase Orders, sfm medical may, at its option and sole discretion, either discontinue the production of specific Products, no longer supply Purchaser with any Products, or reduce its supply of Products to Purchaser, by providing Purchaser with six (6) months written notice of its intent to do so.
9. INTELLECTUAL PROPERTY
All right, title, and interest in and to all intellectual property, including, without limitation, all copyright, trademark, patent, trade secret, and all other proprietary rights therein disclosed or provided to Purchaser pursuant to these General Terms, and all derivatives thereof, shall remain the sole and exclusive property of sfm medical. Furthermore, the Parties agree that sfm medical shall not be liable for infringements of third party intellectual property rights of any kind (including but not limited to patents, utility models etc.) which are related to or caused by Purchaser’s Product specifications, which result from the incorporation of the Products into End Products, or which result from any alteration of the Products by Purchaser. sfm medical shall also not be liable for any claim or expense related to any unforeseeable use of the Product. Unless agreed otherwise in writing, Purchaser shall also be obligated to ensure that no intellectual property rights are infringed in the country of delivery and Purchaser agrees to indemnify sfm medical for any cost of/defense against infringement. If Purchaser informs the supplier of any infringement of intellectual property rights prior to the delivery of the Products, sfm medical shall, at Purchaser’s expense, take reasonable steps to modify the Products so that such intellectual property rights are no longer infringed or cooperate with Purchaser, again at the expense of Purchaser, to obtain other relief to permit use of the Products. Purchaser hereby represents and warrants that all Products which it orders shall not infringe any intellectual property rights of any third parties, and agrees to indemnify sfm medical against all claims of third parties and all costs relating to the defense against all such claims. Purchaser agrees to inform sfm medical in writing as soon as possible point if a third party claims or asserts any infringement or violation of intellectual property rights with respect to the Products. Sfm medical shall be permitted at the expense of Purchaser to respond to any such infringement claim independently and to assert a defense against any such claims.
Purchaser shall hold in confidence and not use or disclose Confidential Information of sfm medical or the terms of these General Terms, except (a) for the limited purpose(s) for which the disclosure of such Confidential Information was made; (b) upon written consent of sfm medical; (c) as may be required by law; or (d) in connection with outside attorneys, accountants, insurers, or auditors of Purchaser when such disclosure is necessary and appropriate under the circumstances. For purposes of these General Terms, "Confidential Information" shall mean all information, data, specifications, documents, analyses, compilations, studies, records, reports, plans, correspondence (including correspondence between the parties), reports and other materials concerning these General Terms or sfm medical or sfm medical’s business, trade secrets, proprietary information, operations, business information, financial information, shipping information, cost data, pricing information, customer and/or consumer information or data, marketing information, supplier information, systems, processes, programs, physical, compositional and performance specifications, designs, products (specifically including those products sold to Purchaser pursuant to these terms), product formulae, manufacturing conditions, techniques, drawings, samples, prototypes, models, machines, tooling, artwork, product ideas, concepts, and knowhow, whether or not speculative or experimental in nature.
11. INJUNCTIVE RELIEF
Purchaser acknowledges and admits that there may be no adequate remedy at law available to sfm medical for Purchaser’s failure to comply with the provisions of these General Terms. Accordingly, Purchaser agrees that, in the event of any such failure by it, sfm medical shall be entitled to seek equitable relief by way of temporary restraining order, preliminary injunction or permanent injunction and such other and further relief as any court with jurisdiction may deem just and proper without the necessity of posting any bond or proving actual damages.
12. COMBINATION OF PRODUCTS WITH OTHER PRODUCTS OR DEVICES
The integration or combination of sfm medical's products with other devices, components, materials or elements shall be the sole responsibility of Purchaser, and Purchaser shall ensure that provide written confirmation to the satisfaction of sfm medical that the integrated device (i.e. the combination of all components) meets industry safety and efficacy standards after being subjected to a complete engineering risk analysis and all applicable testing. Notwithstanding any other provision in these General Terms, Purchaser agrees to indemnify and hold sfm medical harmless for any claim arising from any injury, loss or damage which occurs or is alleged to be caused by a defect in sfm medical’s Product which is integrated or combined with another device, component, material or element. Except as otherwise provided in this paragraph, each Party disclaims any claims for indemnity against the other for any liabilities arising out of current or future sales of Products under these General Terms. To the extent that any disclaimer of indemnity is limited by applicable law, the Parties hereby disclaim any claims for indemnity to the greatest extent permitted by applicable law.
13. WARRANTY PERIOD
sfm medical provides limited warranty cover for twelve (12) months from the date of delivery of a Product to Purchaser. If Purchaser requests service outside of a good faith warranty claim, sfm medical reserves the right to invoice Purchaser for all resulting costs.
14. LIMITED WARRANTY, LIMITATION OF LIABILITY AND EXCLUSION OF DAMAGES
EXCEPT AS SET FORTH INTHESE GENERAL TERMS, SFM MEDICAL MAKES NO EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, SAFETY OR USE OF SFM MEDICAL'S GOODS, OR ANY WARRANTY AS TO THE QUALITY OR CORRESPONDENCE WITH ANY DESCRIPTION OR SAMPLE, AND SHALL HAVE NO LIABILITY IN RESPECT THEREOF. TO THE EXTENT THAT APPLICABLE LAW FORBIDS SFM MEDICAL’S LIMITATION OF THESE WARRANTIES, SFM MEDICAL LIMITS THESE WARRANTIES TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, SFM MEDICAL SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES INCLUDING BUT NOT LIMITED TO LOST PROFITS), WHETHER BASED UPON BREACH OF WARRANTY OR CONTRACT, TORT, USE OR OPERATION OF THE PRODUCTS, OR ANY OTHER LEGAL THEORY OR GROUNDS, AND INCLUDING WITHOUT LIMITATION THE FAILURE OF ANY WARRANTY REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE. EXCEPT FOR ANY FRAUD OR WILLFUL ACTS OR OMISSIONS BY SFM MEDICAL, SFM MEDICAL'S OVERALL LIABILITY SHALL BE LIMITED TO THE LOSS FORESEEABLE AT THE TIME OF ORDER PLACEMENT AND SHALL NOT EXCEED FIVE HUNDRED THOUSAND US DOLLARS ($500,000..00). Any action for breach of the General Terms, including but not limited to any breach of warranty hereunder, must be commenced within one (1) year from the date the breach occurred.
15. FORCE MAJEURE, OTHER IMPEDIMENTS TO THE CONTRACT
A force majeure of any kind shall suspend Either Party's obligation to perform any agreements made under these General Terms. A force majeure includes but is not limited to the following examples: Acts of God; war (declared or undeclared); mobilization; acts of a public enemy; acts of a Government of any country, state, or political subdivision or regulatory agency thereof or entity created thereby; political unrest; official measures; embargoes, terrorism or sabotage; strike; lock-out or labor stoppage of any kind; labor shortage; energy shortage; transport hindrances; fire; flood; water damage; inclement weather; explosions; operational disruptions; material difficulties; or the occurrence of any other unforeseeable impediment or catastrophe which is beyond either Party’s reasonable control. The failure of sfm medical’s suppliers to deliver in conformity with contracts shall also constitute a force majeure. Whenever a force majeure occurs, the aggrieved Party may extend the delivery period or cancel the contract, either in whole or in part.
16. GOVERNING LAW, VENUE AND JURISDICTION/WAIVER OF JURY; ESCALATION AND MEDIATION.
These General Terms and all purchases made pursuant thereto shall be governed by and interpreted for all purposes in accordance with the laws of the Commonwealth of Virginia without regard to this state’s or any other jurisdictions’ conflict of laws rules. In case the parties are unable to resolve any material dispute regarding any matter related to this Agreement or the performance hereunder, the parties shall attempt to resolve such matter by sending a written notice to the other, and each party shall cause its delegate with decision-making authority to communicate regarding the substantive (rather than procedural) matters in dispute, or meet, with the other party in order to discuss and attempt in good faith to reach agreement on the matter(s) in question. If the parties, within ten (10) days of their initial meeting or substantive (rather than procedural) communication, or after such other longer period as the parties may agree upon in writing, are unable to reach agreement on such matter(s) to the reasonable satisfaction of both parties, either party may submit the dispute for resolution by mediation. The mediation shall be conducted in the city of Richmond, Virginia, by JAMS. Mediation will continue for at least fifteen (15) business days unless the mediator chooses to withdraw sooner. At the request of either party, the mediator will be asked to provide an evaluation of the dispute and the parties’ relative positions. Each party shall bear its own costs of mediation effort. If the dispute cannot be resolved through mediation, either Party may commence an action to ultimately resolve the dispute by referring the matter to the following venue and jurisdiction, as follows. Purchaser and sfm medical stipulate and agree that the court of competent subject matter jurisdiction for Henrico County, Virginia, U.S.A., shall have jurisdiction and both parties agree that such venue is proper in such courts for all actions or proceedings with respect to these General Terms. The prevailing party shall be entitled to recover from the other party its actual costs and expenses (including allowable attorney’s fees and expenses) incurred in connection with any litigation between the parties relating to or arising under this Agreement.