EQUINE AMNIO SOLUTIONS, LLC AND AFFILIATES (COLLECTIVELY, “EAS”)
TERMS AND CONDITIONS (“TERMS AND CONDITIONS”)
The facility, veterinary provider or other such customer (collectively, “Buyer”) agrees to purchase and accept EAS products (“Products”) in accordance with these Terms and Conditions. EAS rejects and objects to any and all terms proposed by Buyer, whether contained in Buyer’s purchase order or elsewhere. If EAS and Buyer have signed a separate, written agreement governing Buyer’s purchase of Products, then the terms of such agreement shall govern.
1. INSPECTION; PRODUCT RETURN. Upon receipt of each shipment of Product, Buyer shall promptly inspect such shipment to determine whether the entire shipment was received and to confirm that the Product was shipped in validated containers (if applicable), that all observable seals were intact, and that the shipment otherwise meets the packaging and shipping specifications related to the transportation and distribution of allograft tissue, including with respect to cryopreserved Product, that it was received within the stated shipment expiry. Buyer shall inform EAS in writing of any claim(s) relating to a shipment that contains a shortage of Product, which incurred damage during shipment, or that otherwise fails to conform to the shipping and delivery specifications for the Product immediately after Buyer learns, or should reasonably have learned, of such claim. Product shall be returned to EAS by Returned Material Authorization (RMA). If Buyer does not provide such notice to EAS, Buyer shall be deemed to have accepted the shipment of Product as complete and conforming, as applicable. Upon receipt of any such notice, EAS, at its sole discretion, may either: (i) replace the shortfall and/or non-conforming Product; or (ii) credit Buyer for the shortfall and/or non-conforming Product. The foregoing shall be Buyer’s sole remedy in the event of a shortfall or non-conformance claim. Notwithstanding the foregoing, EAS shall have no liability in the event that the replacement of any Product shall have been necessitated by the fault or negligence of Buyer.
2. SHIPMENT & RISK OF LOSS. Sales shall be FOB point of shipment at EAS’ distribution facility. Buyer shall pay freight charges from the point of shipment to the point of delivery. Title and risk of loss shall pass to Buyer upon shipment to the destination indicated by Buyer.
3. PAYMENT. Payment terms are net thirty (30) days from the date of shipment. If Buyer fails to make timely payment of any amounts due, then in addition to any other rights that EAS may have, Buyer shall pay EAS a late payment charge at the lower of 1.5% per month or the highest rate permitted by Law, compounded daily and calculated on the basis of the number of days actually elapsed in a 365-day year, beginning on the due date and ending on the day prior to the day on which payment is made in full. Buyer shall be responsible for any and all costs actually incurred by EAS, including, without limitation, reasonable attorneys’ fees and costs, in collecting any sums due from Buyer to EAS.
4. COMPLIANCE WITH LAW; LICENSES. EAS and Buyer shall comply with all applicable statutes, rules, regulations and standards of any and all governmental authorities and regulatory and accreditation bodies. Any licenses, permits, certificates or other documents required by any governmental authority for the supply and use of the Products hereunder shall be the respective responsibility of EAS and Buyer. EAS is not responsible for any violation of applicable laws and regulations by Buyer with regard to the distribution and use of the Products.
5. WARRANTIES. Subject to the provisions of this Paragraph 4, EAS furnishes this Product without any expressed or implied warranties. All statements or descriptions are informational only and are not to be interpreted or implied as a warranty of the Product. The end-user is solely responsible for appropriate storage, application and usage of this Product in accordance with the Instructions For Use (IFU), as may be amended from time to time. Application and use of allograft tissue may have negative outcomes. Occurrence of complications at the affected site may transpire post-treatment without early warning signs. These include but are not limited to: (i) transmission of communicable diseases; (ii) transmission of infectious disease agents such as bacteria, fungi and viruses; and (iii) immune rejection and/or allergic reactions. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, EAS MAKES NO WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE. NOTWITHSTANDING THE FOREGOING, EAS DOES NOT EXCLUDE LIABILITY TO THE EXTENT THAT SUCH LIABILITY MAY NOT BE EXCLUDED OR LIMITED BY LAW.
6. PRODUCT RECALLS. In the event EAS believes it may be necessary to conduct a recall, field correction, market withdrawal, stock recovery, or other similar action with respect to any Product, EAS shall have sole authority with respect to such recall and the parties shall work together to safely and effectively conduct such recall as quickly and efficiently as possible. As directed by EAS, and immediately upon becoming aware, Buyer shall make every reasonable effort to comply with the action, including but not limited to discontinuing use and subsequent distribution of the Product. In the event that such recall results from the negligence or willful misconduct of Buyer, Buyer shall be responsible for the expenses of the recall.
7. INDEMNIFICATION. Buyer shall defend, indemnify and hold harmless EAS and its respective members, directors, officers, employees, consultants and agents from and against any and all liability and claims of all kinds for any injury to person(s) or property or any other claims of injury, loss, expense or damage incurred by Buyer or any third party that arises out of the Buyer’s breach of its obligations hereunder, or due to the negligent acts, omissions or intentional acts of Buyer, its employees, agents, consultants, or subcontractors.
8. EXCLUSIVE REMEDY & LIMITATION OF LIABILITY. If the Products delivered to Buyer fail to conform to these Terms and Conditions for any reason whatsoever, Buyer’s sole and exclusive remedy shall be as provided herein. Under no circumstances shall EAS be liable to Buyer for: (i) any special, exemplary or consequential damages, however caused and under any theory of liability, whether based in contract or tort or otherwise; or (ii) any claim or demand brought against Buyer by any other party, even if EAS has been advised of the possibility of such claim or demand. EAS’ liability to Buyer for any claim whatsoever related to the Products or these Terms and Conditions, including any cause of action sounding in contract, tort, indemnity, contribution or strict liability, shall in no event exceed the amount of all payments received by EAS for the Products that are subject of these Terms and Conditions.
9. FORCE MAJEURE & DELAY. EAS shall be excused for any delay in the shipment of any Products ordered due to acts of God, war, the public enemy, mobilization, riot, strike, lockouts, work stoppage or any other labor difficulties, blights, disease, excessive heat, explosion, shortage of cars or other materials, embargoes, acts of civil or military authorities, fires, floods, accidents, quarantine restrictions, carrier conditions, delays in transportation, or any other case of Force Majeure, or circumstances or causes beyond the reasonable control of EAS. In the event of such an occurrence, EAS shall give Buyer reasonable notice that there will be a delay or non-delivery of Product, upon which notification these Terms and Conditions shall be deemed terminated and EAS shall have no further obligation to deliver Product covered by these Terms and Conditions. Notwithstanding the foregoing, if Buyer agrees to a future delivery date in writing, these Terms and Conditions shall continue and EAS shall deliver the Products on such later delivery date. EAS shall make every reasonable effort to meet the shipping date specified. In no event will EAS be liable for its failure to meet such date, if the delay is caused by reasons beyond the reasonable control of EAS. Notwithstanding the foregoing, EAS shall have no obligation to obtain Product from a third party in order to replace or reimburse for any contractual shortfall.
10. ATTORNEY’S FEES. In the event legal action occurs with respect to these Terms and Conditions, including, without limitation, actions to interpret or to enforce any of the provisions herein, and if EAS prevails in such legal action, EAS shall be entitled to recover from Buyer, attorney’s fees and costs reasonably incurred by EAS in such action, unless otherwise prohibited by applicable law.
11. PROPRIETARY RIGHTS. Buyer agrees that EAS retains all right, title and interest in and to all patent rights, trademarks, trade names, inventions, copyrights, know-how and trade secrets relating to the Products and the design, processing, manufacture, operation or service of same. Buyer shall not, and shall require that its buyers (if any) do not, remove, alter, cover or obfuscate any proprietary rights notices placed or embedded by EAS in or on any Product.
12. ENTIRE AGREEMENT & SEVERABILITY. In the event of a conflict between the provisions of these Terms and Conditions and the provisions of a signed, separate written agreement between Buyer and EAS, the terms and conditions of the signed agreement shall govern. In the event that any of the terms of these Terms and Conditions is, becomes, or is declared to be invalid or void by any court of competent jurisdiction, such term or terms shall be null and void and shall be deemed severed from these Terms and Conditions and all of the remaining terms of these Terms and Conditions shall remain in full force and effect.
13. GOVERNING LAW; VENUE. These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Arizona, without giving effect to its conflict of laws principals. Any demand, suit or cause of action arising out of these Terms and Conditions shall be brought in a state or federal court located in Maricopa County, Arizona. Buyer hereby submits to the jurisdiction and venue of such court.
14. RECORD KEEPING. EAS and Buyer will keep or cause to be kept in accordance with federal law and applicable regulatory requirements, books and records regarding the purchases and sales of Products pursuant to these Terms and Conditions. Buyer shall return all tissue utilization records to EAS, as applicable.
15. NONASSIGNABILITY; AMENDMENTS. Buyer shall not assign these Terms and Conditions without the prior written consent of EAS and any attempt to assign or transfer any of the rights, duties or obligations under these Terms and Conditions without such consent shall render such transfer or assignment null and void. These Terms and Conditions may be amended and executed only in writing by EAS and Buyer.