Terms Of Product Sale

SURGICAL PRODUCT SOLUTIONS LLC
STANDARD Terms and Conditions OF PRODUCT SALE
Last Updated June 1, 2024
  1. APPLICABILITY

    These general terms and conditions (these “Terms”) govern SPS’ provision of the applicable Services to Customer. The cover page these Terms and the applicable Addendum comprise the entire agreement (the “Agreement”) between the parties and supersede all prior or contemporaneous understandings agreements negotiations representations and warranties and communications both written and oral.

  2. TERM AND TERMINATION

    This Agreement commences on the Effective Date as indicated on the cover page. The Initial Term will be as indicated on the cover page. Upon the expiration of the Initial Term this Agreement will automatically renew for successive terms of twelve (12) months (each a “Renewal Term” and together with the Initial Term the “Term”). Either party may terminate this Agreement by notifying the other party in writing at least ninety (90) days prior to the expiration of the then current Term. Each party shall be responsible for the payment of applicable fees owed the other party through the termination date. In the event of a breach of the obligations of a party the non-breaching party may terminate this Agreement if the breaching party fails to cure within 30 days of written notice of the breach. Any breach of Customer’s payment obligations shall be deemed a material breach and SPS may terminate this Agreement immediately with notice. Sections including arbitration governing law indemnification confidential information compliance with applicable laws and such other sections which by their terms reasonably include performance after expiration or termination of this Agreement shall survive such expiration or termination.

  3. REPRESENTATIONS AND WARRANTIES

    Each party represents and warrants that it has the legal power and authority to enter into this Agreement.

  4. INDEMNIFICATION

    Customer shall indemnify defend and hold SPS and its officers directors employees and agents harmless from and against any and all claims costs damages losses liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with a claim brought by a third party arising directly or indirectly from (a) Customer’s negligence or misconduct (b) a breach by Customer this Agreement (c) Customer’s use of the Products off-label (d) Customer’s failure to maintain the Products or (e) Customer’s failure to use the Product in accordance with the manufacturer’s specifications. SPS shall indemnify defend and hold Customer and its officers directors employees and agents harmless from and against any and all claims costs damages losses liabilities and expenses (including reasonable attorneys’ fees and costs) arising out or in connection with a claim brought by a third party alleging personal injury including death or tangible property damage as a result of SPS’s negligence or breach of its obligations under this Agreement.

  5. DISCLAIMER OF WARRANTIES

    EXCEPT AS OTHERWISE PROVIDED HEREIN SPS MAKES NO REPRESENTATION WARRANTY OR GUARANTY AS TO THE RELIABILITY QUALITY SUITABILITY MERCHANTABILITY AVAILABILITY ACCURACY OR COMPLETENESS OF THE PRODUCTS AND/OR SERVICES; THAT THE PRODUCTS OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. ALL CONDITIONS REPRESENTATIONS AND WARRANTIES WHETHER EXPRESS IMPLIED STATUTORY OR OTHERWISE INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

  6. LIMITATION OF LIABILITY

    EXCEPT FOR ACTUAL FEE’S OWED TO A PARTY AND INDEMNIFICATION OBLIGATIONS IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER TO SPS IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING OR SUBSEQUENT TO THE EVENT GIVING RISE TO SUCH CLAIM WHICHEVER IS GREATER. IN NO EVENT SHALL CUSTOMER OR SPS BE LIABLE TO ANYONE FOR ANY INDIRECT PUNITIVE SPECIAL EXEMPLARY INCIDENTAL CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA REVENUE PROFITS USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT INCLUDING WITHOUT LIMITATION THE SERVICES OR PRODUCTS EVEN IF SUCH PARTY HAD PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  7. LAWS AND EXPORT CONTROL

    SPS sells Products that may be subject to U.S. export controls administered by the U.S. Department of Commerce the U.S. Department of Treasury Office of Foreign Assets Control and other U.S. agencies. Customer is solely responsible for compliance with all applicable laws regulations and statutes including without limitation all requirements of the United States Department of Transportation.

  8. NOTICE

    Either Party may give notice by written communication sent by first class mail or pre-paid post to the other at the address provided on the cover page or as otherwise indicated by a Party. Such notice shall be deemed to have been given upon the expiration of 96 hours after mailing or posting (if sent by first class mail or pre-paid post).

  9. MODIFICATION TO TERMS

    Neither party may modify the Agreement including these Terms without the prior written consent of the other party.

  10. ASSIGNMENT; CHANGE IN CONTROL

    This Agreement may not be assigned by Customer by operation of law change of control merger acquisition of all or substantially all of the Customer’s assets or otherwise without the prior written approval of SPS which may not be unreasonably withheld conditioned or delayed. Any purported assignment in violation of this section shall be void.

  11. CONFIDENTIAL INFORMATION

    All non-public confidential or proprietary information of the disclosing party specifications designs plans documents data business operations pricing or discounts whether disclosed orally or disclosed or accessed in written electronic or other form or media and whether or not marked designated or otherwise identified as “confidential” in connection with this Agreement is confidential solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by the disclosing party. Upon the disclosing party's request the receiving party shall promptly return all documents and other materials received from the disclosing party. The disclosing party shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; or (c) rightfully obtained by the receiving party on a non-confidential basis from a third-party. Notwithstanding anything in here to the contrary SPS shall not be responsible for the protection of any personal health information (“PHI”) or personally identifiable information (“PII”). Customer covenants that it shall not provide any PHI or PII to SPS.

  12. COMPLIANCE WITH LAWS

    Each party represents warrants certifies and covenants (collectively “Covenants”) that it will comply with all laws applicable to the goods and/or the activities contemplated or provided pursuant to this Agreement and under each Purchase Order including but not limited to any national international federal state provincial or local law treaty convention protocol common law regulation directive or ordinance and all lawful orders including judicial orders rules and regulations issued thereunder including without limitation those dealing with the health and safety records retention and the transportation or storage of hazardous materials. Each party shall also comply with good industry practices. With respect to all Product sold or otherwise transferred the selling party shall provide all relevant information including without limitation material safety data sheets in the language and the legally required format of the location to which the Products will be shipped and mandated labeling information required pursuant to applicable requirements.

  13. DISPUTE RESOLUTION

    Except for claims seeking equitable relief the parties shall attempt to amicably resolve any controversy dispute or difference arising out of the Agreement and/or a Purchase Order. Except for claims seeking equitable relief any unresolved dispute shall be referred to a qualified independent arbitrator acceptable to both parties. Any arbitration under the Agreement shall take place in Chicago Illinois. The arbitrator will have no authority to award any damages that are excluded by the terms of the Agreement. In the event that a suitable independent arbitrator cannot be identified and agreed on by both parties within twenty (20) days of the first demand by a party for arbitration then the parties agree that a single arbitrator will be appointed by the American Arbitration Association (AAA). All arbitration proceedings shall be conducted in accordance with the Commercial Arbitration Rules of the AAA but shall be administered by AAA only if AAA appoints the arbitrator. The arbitrator may award attorney’s fees and costs as part of the award. The award of the arbitrator shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. All proceedings shall be conducted in the English language unless otherwise stated in the applicable Purchase Order. The award shall be final and binding on both Customer and SPS and the parties hereby waive the right of appeal to any court for amendment or modification of the arbitrator’s award.

  14. FORCE MAJEURE

    Neither party shall be liable in any manner for failure to perform or delay in performing all or any part of this Agreement which is directly or indirectly due to any cause or circumstance beyond the control of such party including without limitation acts of God fire flood storms earthquake typhoon tidal wave plague or other epidemics governmental laws orders regulations sanctions or restrictions war (whether declared or not) armed conflict or the serious threat of the same hostilities mobilization blockade embargo detention revolution riot looting lockout strike or other labor dispute unavailability of transportation or severe economic dislocation.

  15. GENERAL

    This Agreement shall be governed by laws of the Commonwealth of Pennsylvania. No text or information set forth on any other purchase order preprinted form or document shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable then such provision(s) shall be construed as nearly as possible to reflect the intentions of the invalid or unenforceable provision(s) with all other provisions remaining in full force and effect. No joint venture partnership employment or agency relationship exists between Customer and SPS as a result of this Agreement. The failure of SPS to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by SPS in writing. This Agreement together with any applicable Purchase Order the Quality Assurance   Service Guarantee available at http://www.surgicalproductsolutions.com/docs/SPS-Quality-Assurance.pdf are incorporated herein by reference comprises the entire agreement between Customer and SPS and supersedes all prior or contemporaneous negotiations discussions or agreements whether written or oral between the parties regarding the subject matter contained herein. In the event of a conflict between these Terms and the Addendum the Addendum shall take precedence.




    ADDENDUM 1
    TERMS AND CONDITIONS OF PRODUCT SALE
    PRODUCT SALE TERMS

    The Agreement, these Terms and Conditions of Product Sale (“Sale Terms and Conditions”) along with any purchase orders or purchase offers (each, a “Purchase Order”), any releases, requisitions, work orders, shipping instructions, supplemental terms and conditions and any other document of SPS, will exclusively govern the sale of Product to Customer and represents the entire agreement between SPS and Customer. Acceptance of SPS’s Purchase Order shall constitute Customer’s agreement to comply with and be bound by the Agreement.

  1. PRODUCT

    (a) Sale. The Agreement is being entered into in connection with the proposal for the sale of the Product by SPS, which is attached hereto and made a part of the Agreement (the “Proposal”). In the event of any conflict or inconsistency between the Agreement and the Proposal, the terms of the Agreement shall govern and control. The Product specifications and requirements set forth on Exhibit A are referred to herein, respectively, as the “Specifications” and the “Requirements”. Notwithstanding anything to the contrary contained herein, the Specifications or Requirements may be modified (i) upon the mutual agreement of the parties, or (ii) by Customer upon written request to SPS, provided that Customer agrees to pay all cost increases incurred by SPS in connection with any such changes.

    (b) Installation. The sale of the Product to Customer does not include installation, training or additional services unless otherwise agreed to in writing by the parties.

    (c) Exclusions. The following are specifically excluded from SPS's obligations under this Agreement:

    (i) Any exclusions or Customer scope items identified in the Agreement or Proposal, including the exhibits and attachments.

    (ii) SPS expressly excludes from its obligations related to the Product all responsibility and liability for the performance of any required regulatory compliance analyses, and for Customer's compliance with such regulatory requirements. Customer fully indemnifies and holds harmless SPS for any and all costs, penalties, fines and expenses related to or caused by an alleged failure of owner or operator to comply with the applicable regulations.

    (iii) Changes to design, fabrication, construction and inspection which may be required by Customer will be incorporated by change order with price adjustment.

  2. PRICING

    All prices for Products set forth of this Agreement are firm through the last day of the agreement term. SPS shall have the right upon thirty (30) days' written notice to Customer, to increase all or a portion of Product prices annually.

  3. BILLING AND PAYMENT TERMS

    Delivery and payment terms shall be Ex Works SPS location with freight and insurance prepaid (Triose), net 30 days from the date of invoice. Invoices shall be issued to Customer at the address specified on the cover page of the Agreement unless notified in writing of a different address. Customer hereby agrees to be liable for any payments due hereunder to SPS for Products. All payments shall be made payable to Surgical Product Solutions by Customer. Customer shall be responsible for all taxes, including, but not limited to, state and local sales taxes, excise taxes and usage taxes. Any overdue invoices shall bear the rate of interest on the face of the invoice.

  4. GUARANTEE

    Subject to Section 6 of these Sale Terms and Conditions, SPS warrants and represents that at the time of sale, all Products sold hereunder will be free from all material defects as per SPS’s quality assurance process (Quality Assurance   Service Guarantee in Exhibit (AA)).

  5. LIMITED WARRANTY

    (a) Equipment Warranty. Except for consumable Products, as noted in (b) below SPS warrants that the Product will be free from material defects in material and workmanship for a period of fifteen (15) months from the date that SPS notifies Customer that the Product is ready for shipment (the “Warranty Period”). SPS's warranty is contingent upon (i) operation and maintenance of the Product during the entire Warranty Period in accordance with the manufacturer’s recommended operating procedures; and (ii) daily operational run logs that demonstrate proper Product operation and maintenance during the Warranty Period. Customer must notify SPS in writing within a reasonable time period, but not later than five (5) business days following Customer’s observation of non-conformity that the warranted component(s) is not in conformity with this limited warranty during the stated warranty period. SPS's obligation and Customer's sole remedy, under this limited warranty is, at SPS's option, the repair, replacement or correction of any non-conforming component of the Product, or refund of fees paid for such Product.

    (b) Consumable Items. Consumable Products are warranted for thirty (30) days from the date that SPS notifies Customer that the Product is ready for shipment or the duration of the manufacturer's warranty, whichever is greater. SPS's sole obligation under this limited consumable Product warranty is, at SPS's option, the repair, replacement or correction of any non-conforming warranted consumable or the refund of fees paid for such consumable Product. Consumable Products are defined as wear components or parts that are periodically replaced in conjunction with normal maintenance procedures. These components or parts include, but are not limited to, items such as drive belts, seals, valve seats, packings, filters, motors, etc.

    (c) Correction Period. Customer will ensure that upon SPS's request a reasonable period of time is allowed immediately following startup of the Product for SPS to repair or replace any defective Product known at that time.

    (d) Warranty Exclusions and Disclaimer. The following are not covered by SPS’s warranty:

    (i) Damage caused by use of the Product for purposes other than those for which it was designed, and/or in violation of the manufacturer’s specification. All operation of Product outside these procedures and specifications will be in violation of SPS's limited warranty and will void such limited warranties.

    (ii) Damage caused by disasters such as fire, flood, tornado, wind and lightning.

    (iii) Damage or failure caused by improper maintenance, unauthorized attachments, modifications.

    (iv) Use in a manner not in accordance with any operation manual or recommended operating procedure (as such may be amended or supplemented from time to time, with notice to Customer).

    (v) Any other abuse or misuse by Customer.

  6. CHANGES IN PRODUCTS

    If a Product is discontinued or SPS no longer acquires this Product on acquisition, SPS may delete that Product from the Product list by written notice to Customer. SPS retains the right, in its sole discretion, to modify or discontinue any Product at any time, provided however that SPS shall not cancel any shipment of Product after accepting a Customer Purchase Order without the written consent of the Parties. Additional Products may be added to this Agreement with the written consent of both parties. All Products offered pursuant to this Agreement are subject to availability.

  7. SHIPPING TERMS

    (a) The Product shall be shipped when SPS provides written notice to Customer that the Product is ready for shipment to Customer.

    (b) Shipments shall be through Riverview Health’s 3rd Party partnership with Triose unless otherwise stated by Riverview Health. Risk of loss to the Product shall pass to Customer when SPS makes the Product available for delivery through Riverview Health’s carrier account. Title to the Product shall pass to Customer when Customer pays for the Product. Except as otherwise provided herein, Customer shall be responsible for paying all costs and charges associated with the delivery of the Product, including but not limited to all freight, unloading, import/export, tariffs, taxes, duties and packaging costs.

  8. TERMINATION

    SPS may terminate this Agreement pursuant to the Sales Terms and Condition at any time and without cause or penalty by giving sixty (60) days' prior written notice to Customer, provided however that any SPS accepted Customer Purchase Order unfulfilled at the time of termination shall be fulfilled and this Agreement shall continue to apply until such time as the last remaining Customer Purchase Order is closed out.

  9. DIRECT AGREEMENT

    The Agreement is being made directly between SPS and Customer and not pursuant to any agreement with a group purchasing organization of which Customer may be a member. Accordingly, SPS shall not pay administrative fees to any group purchasing organization for any purchases made by Customer under this Agreement.

  10. RETURNED GOODS POLICY

    Contact: SPS’s Customer Service at: 412-564-1280, Monday through Friday 8:00 A.M. to 5:00 P.M. (EST).

    · All returns must be pre-approved and accompanied by a Return Merchandise Authorization ("RMA"), provided such RMA shall not be unreasonably withheld, conditioned, or delayed.

    o RMA numbers can be obtained by contacting the SPS Customer Service Department or your account manager.

    o The lot number must be provided for each item to obtain a RMA number.

    o The RMA number must be noted on the outside of the return. In the event an item is defective or damaged upon arrival, opening, or use, Buyer will contact sales representative immediately.

    o Seller will replace the item at their expense. If supply is not available, Seller will issue a full credit

    · In the event of a facility ordering error, items can be returned in the condition they were shipped for a credit within 14 days of delivery and will be subject to the following criteria.

    o Upon receipt and inspection of items, a credit will be issued less a 10% restocking fee.

    o Only items and lot numbers listed on RMA will be eligible for credit.

    o Freight charges are the responsibility of the Buyer.

    · Products must be free from damage, customer labels and markings to be eligible for credit.

    o All tamper-evident seals must be intact.

    o All products with Tag/Alert temperature monitors must display "OK".

    · All SPS provided products must have at least 6 months of shelf life remaining to be eligible for return or the sale is final.

    · Item(s) purchased that are subject to an FDA or Manufacturer recall, whether voluntary or involuntary, will be replaced with a non-recalled item at no charge. If supply is unavailable, Seller will issue a credit upon the return of items. Freight charges are the responsibility of the Seller.