Terms of Surplus Purchase

SURGICAL PRODUCT SOLUTIONS LLC
STANDARD Terms and Conditions of PURCHASE
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 CONDITION OF SURPLUS PURCHASE
    SURPLUS PURCHASE TERMS

    The Agreement, these Terms and Conditions of Surplus Purchase (“Surplus 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 purchase of Product by SPS 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. SURPLUS INVENTORY

    For purposes of these Surplus Terms and Conditions, all Products, defined as supplies previously owned and held in procession by the Customer that have been transferred to and received at the SPS facilities shall be referred to as "surplus inventory".

    (a) Surplus Inventory Early Identification Services. Customer grants SPS permission to have access to Customer’s supply chain management team during predetermined, re-occurring appointments either on site or via teleconference to assist Customer in identifying surplus inventory within but not limited to the operating room inventory supply rooms. These appointments will be scheduled on an as needed basis, agreed to by both Parties, and by set appointment only. If SPS is to meet on site, SPS agrees to meet the specified Customer credentials required by the Seller to access such facilities. If the Seller requires additional credentials that are specific to the Seller’s compliance manuals, then the Seller shall provide access to those credentials to SPS.

    (b) Surplus Inventory Purchase / Non-fixed Rate. SPS shall purchase, transfer title, and take into possession certain specified Products supplied by Seller. All Products deemed as re-sellable surplus product shall be available for direct purchase by SPS at time of inspection and identification. SPS and Seller must mutually agree on which Products will be purchased by SPS under this Agreement as well as the resale price for which the items will be purchased by SPS before the Products are transferred to SPS's Facility. SPS shall store the Products at the SPS Facility. Once the Product is identified by SPS, SPS reserves the right to thoroughly inspect the Product and accept or decline the Product based on a result of that inspection.

  2. DELIVERY OF PRODUCT

    (a) Freight and Risk of Loss. If Customer does not transfer the Product to SPS at the time of inspection and identification then the Product shall be shipped by SPS CIF (cost, insurance, freight). Risk of loss to the Product shall pass to SPS when Customer makes the Product available for delivery through SPS’s carrier account. Title to the Product shall pass to SPS when SPS pays for the Product. Except as otherwise provided herein, SPS 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.

    (b) Product Markings and Coding. Prior to delivering the Product to SPS, Customer shall separate the Product or clearly mark on the packaging of each unit of Product as being in route to SPS in an attempt to limit the Product from being used by Customer.

    (c) SKU / LOT Tracking. SPS shall maintain and track all SKU & LOT numbers of the Product from time of release.

  3. FEES; PAYMENT TERMS

    (a) Fees. Fees for all services provided by SPS under this Agreement shall be free of charge granted that Customer allows SPS to take possession of the mutually agreed upon Products upon purchase by SPS.

    (b) Cash Payment. For the purpose of this Agreement, a cash payment is defined as payment issued for Product by SPS to Customer in the form of cash, check, wire, or credit card. Once Customer agrees to sell the Product to SPS for a cash payment by evidence of an accepted purchase order issued by SPS to Customer and signed for by Customer, cash payment terms are net 30 from when the Product is received in the SPS warehouse, quality inspected and accepted by SPS. SPS can issue cash payment via check, wire, or credit card payment based on Customer’s preference.

    (c) Credit Payment. For the purpose of this Agreement, a credit payment is defined as payment issued for Product by SPS to Customer in the form of a credit memo to be used by Customer to purchase available inventory for sale from SPS. Once Customer agrees to sell the surplus inventory to SPS for credit payment by evidence of an accepted purchase order issued by SPS to Customer and signed for by the Seller, credit payment terms are immediate following the receipt of the surplus inventory by SPS and completion of the SPS quality inspection of the surplus inventory. A formal credit memo will be issued to Customer by SPS for immediate use by Customer to purchase Products from the available inventory SPS has for sale. Each Credit Memo is valid for 12 months.

    (d) Stop Payments. Buyer reserves the right to stop payment on any check that has not been cashed within 3 months of issuance. It is the responsibility of the Seller to cash checks in a timely manner to avoid any stop payment actions. In addition, if a Stop Payment is required for any reason outside of the quarterly check stops, the Buyer reserves the right to deduct a fee in the amount of $25.00 or the imposed fee from Buyer's issuing bank, whichever is greater.

    (e) Credit Expiration. Buyer reserves the right to expire any credits that are not used within one year of their effective date. It is the responsibility of the Seller to redeem any credits before the expiration date or to request an extension, subject to Buyer approval.

  4. RECORDS

    SPS shall keep accurate records of all Product sales and monthly inventory reports. SPS shall reconcile its account Customer upon end of term or termination of the Agreement. SPS shall respond to any Customer request for reconciliation within thirty (30) days.

  5. PRODUCT PURCHASES

    (a) Product. Customer agrees to make available by consignment and / or sell to SPS such Products held in surplus inventory as agreed by the Parties during the inventory inspection period. SPS and Customer shall mutually agree on which Products will be purchased by SPS or consigned to SPS under this Agreement before the Products are transferred to SPS's facilities.

    (b) Sales and Selling Price. SPS's purchase price of each Product shall be as stated on a Purchase Order to Customer. SPS's Product resale price shall be solely within its discretion.

    (c) Sales Reports. SPS shall make available to Customer via quarterly reports a standard point of sale report if requested by Customer in writing.

  6. ACCEPTANCE OF PURCHASE ORDERS

    SPS's commitment to purchase Products from Customer arises only upon SPS's issuance of a Purchase Order to Customer and Customer’s acceptance or deemed acceptance of such Purchase Order. Any forecasts, commitments, projections, representations about quantities to be purchased or other estimates provided to Customer are for planning purposes only and shall not be binding upon SPS, and SPS shall not be liable for any amounts incurred by Customer in reliance on such estimates. Acknowledgement of a Purchase Order by written acceptance or by supply of the Product called for by a Purchase Order, shall be deemed acceptance of such Purchase Order. The terms set forth in a Purchase Order take precedence over any alternative terms in any other document connected with the applicable transaction except in the case of a direct conflict with the Agreement, in which case this Agreement shall prevail unless the parties have expressly and specifically agreed in writing that the conflicting Purchase Order terms are intended to override this Agreement in the event of a conflict. Reference in a Purchase Order to any such offer to sell, quotation or proposal shall in no way constitute a modification of any of the terms of this Agreement or such Purchase Order. ANY ATTEMPTED CONFIRMATION OR ACKNOWLEDGMENT BY CUSTOMER THAT CONTAINS TERMS INCONSISTENT WITH OR IN ADDITION TO THE TERMS OF THE APPLICABLE PURCHASE ORDER OR THIS AGREEMENT IS NOT BINDING UNLESS SPECIFICALLY ACCEPTED BY SPS IN WRITING. THE AGREEMENT EXPRESSLY LIMITS ACCEPTANCE TO THE TERMS OF THE APPLICABLE PURCHASE ORDER, AND SPS HEREBY OBJECTS TO AND REJECTS ANY DIFFERENT OR ADDITIONAL TERMS CONTAINED IN ANY RESPONSE TO ANY OF ITS PURCHASE ORDERS. EXCEPT AS STATED ABOVE, THE TERMS OF THE AGREEMENT ARE THE SOLE AND EXCLUSIVE TERMS ON WHICH SPS AGREES TO BE BOUND.

  7. LIMITED WARRANTY

    CUSTOMER AGREES TO PASS ALONG ANY WARRANTIES, UNLESS OTHERWISE PROHIBITED BY THE ORIGINAL PURCHASE DOCUMENTATION. EXCEPT AS SET FORTH ABOVE, EXCEPT AS OTHERWISE PROVIDED HEREIN, CUSTOMER 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 SPS’ 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. Customer covenants and represents to SPS, that all goods supplied by Customer and the use, design, construction, assembly, production, shipment, sale, packaging, labeling, packing, advertising, instructions and warnings or lack thereof and other printed matter furnished or authorized by Customer, shall abide by the product integrity standards set forth on the Exhibit C, Processes, Quality Control.

  8. CHANGES

    Any changes to a Purchase Order, once accepted by Customer, must be in writing and agreed to by both Parties.

  9. ORDER POSTPONEMENT

    SPS may request Customer postpone shipment of Products covered by one or more Purchase Orders, and Customer shall postpone shipment for a period not to exceed seven (7) days. In the event SPS requests postponement of shipping Products governed by take all reasonable steps to minimize costs during such suspension.

  10. ORDER TERMINATION

    SPS may terminate a Purchase Order after acceptance, only with Customer’s prior written consent.

  11. RIGHT OF INSPECTION

    Products will be subject to SPS’s inspection on arrival. Defective Products will be returned at Customer’s expense and credit taken on settlements. SPS shall have the right to reject and refuse Products that are not in strict accordance with the terms of a Purchase Order or which are different in quality or quantity from that ordered, or which are believed by SPS to violate a third party's rights. Any claims made by SPS for defective goods, shortages, returns, damages, or other claim of set off asserted as a result of Customer’s failure to comply with a Purchase Order or the Agreement will be charged back to Customer and the amount thereof deducted from payments to be made to Customer or, at SPS’s option, will be promptly refunded to SPS. Any rejected or returned Products shall be at Customer’s risk and expense, and Customer shall be responsible for all freight and handling charges.