1. GENERAL
1.1 Contract Terms. These Terms and Conditions of Sale apply to the purchase of Nonin Medical, Inc., and any Affiliate (individually and collectively, “Nonin”) Products by the purchaser (“Buyer”) identified in the invoice, quote or other Nonin document issued by Nonin for the sale of the Products by Nonin to Buyer. These Terms and Conditions of Sale, along with the invoice, quote, or other Nonin document which these Terms and Conditions of Sale accompany, are referred to as this “Agreement”. “Products” include (i) any products manufactured by Nonin Medical, Inc. directly, and (ii) any products manufactured by any Affiliate of Nonin Medical, Inc. or any third party and offered for sale directly by Nonin as part of Nonin’s portfolio of products. Products does not include Product Software. “Affiliate” means any entity that is owned or controlled by Nonin Medical, Inc., has an ownership interest in or controls Nonin Medical, Inc., or is under common ownership or control with Nonin Medical, Inc. Except as expressly provided herein or in a separate writing signed by Nonin, this Agreement shall apply to the purchase of all Products. Nonin shall not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement), whether set forth in any purchase order, receipt, acceptance, confirmation, correspondence or otherwise of or by Buyer, unless Nonin specifically agrees to any such provision in a writing signed by Nonin and such writing references this Agreement. Buyer acknowledges that this is a commercial and not a consumer transaction.
1.2 Formation of Contract. Buyer makes an offer to purchase Products when Buyer submits an order to Nonin. An order is submitted when Buyer submits to Nonin either a phone order, electronically communicated order, or written order for Products. Nonin’s acceptance of Buyer’s offer is expressly made conditional on Buyer’s assent to all of Nonin’s terms and conditions of sale herein. An order shall be binding on Nonin only after an order confirmation has been issued by Nonin to Buyer or Nonin ships Products to Buyer, whichever occurs first. Upon acceptance of an order by Nonin, Buyer may not cancel such order and shall take delivery of and pay for the Products pursuant to the terms of this Agreement.
2. PRICES
2.1 Unless other arrangements have been made, the purchase price for the Products and all other amounts due hereunder shall be in U.S. dollars, ExWorks Nonin’s designated shipping point, and include standard and customary packaging.
3. TAXES
3.1 Any sales, use, or manufacturer’s tax that may be imposed upon the sale or use of Products (including, without limitation, any goods and services tax and value-added tax), or any property tax levied after readiness to ship, or any excise tax, license or similar fee required under this transaction, shall be in addition to the quoted prices and shall be paid by Buyer.
4. PAYMENT TERMS
4.1. Payment Due Date. Payment in arrears for Products is subject to Nonin’s credit approval and Buyer’s providing complete information as requested by Nonin for such credit approval. Credit approval will be determined by Nonin in its sole discretion and may be terminated at any time upon written notice to Buyer. Payment in arrears for Products, if approved, shall be due thirty (30) days from invoice date, unless otherwise agreed in writing. Unless otherwise agreed to in writing, all amounts payable hereunder are payable in U.S. dollars, by wire transfer, Automated Clearing House (“ACH”), or eCheck to an account or accounts designated by an authorized representative of Nonin, or such other method approved by an authorized representative of Nonin. Buyer shall use any designated accounts receivable portal provided by Nonin for payment. Partial shipments of Product(s) shall be billed as shipped. In the event payment by credit card is accepted by Nonin, Buyer agrees to pay a surcharge as a percentage of the invoice at the rate then in effect and communicated by Nonin to Buyer. In addition, Nonin may add other surcharges to the invoice due to circumstances set forth in the force majeure section of this Agreement and Buyer agrees to pay such surcharges together with the purchase price for the Products.
4.2 Late Payments. A service charge of 1.5% per month, not to exceed the maximum rate allowed by law, shall be made on any portion of Buyer’s outstanding balance that is not paid by the due date, which charge shall be determined, and compounded on a daily basis from the due date until the date paid. Payment of such service charge shall not excuse or cure Buyer’s breach or default for late payment. In addition, in the event that Buyer fails to make any payment to Nonin on or before the due date, then Nonin shall have no obligation to continue performance under any agreement with Buyer.
4.3 Payment of Lesser Amount. If Buyer pays, or Nonin otherwise receives, a lesser amount than the full amount due under this Agreement, such payment or receipt shall not constitute or be construed other than as a payment toward the Buyer’s account applied first to any accrued but unpaid late payment interest, then to the earliest amount due Nonin. Nonin may accept any check or payment in any amount without prejudice to Nonin’s right to recover the balance of the amount due or to pursue any other right or remedy. No endorsement or statement on any check or payment or elsewhere shall constitute or be construed as an accord or satisfaction.
5. EXPORT TERMS
5.1 Unless other arrangements have been made, payment on export orders shall be made by irrevocable confirmed letter of credit, payable in U.S. dollars against Nonin’s invoice and standard shipping documents. Such letter of credit shall be in an amount equal to the full invoiced purchase price of the Products and shall be established in a United States bank or other financial institution acceptable to Nonin. Buyer shall procure all necessary permits and licenses for shipment and compliance with any governmental regulations concerning control of final destination of Products.
5.2 Buyer shall not, directly or indirectly, violate any United States law, regulation, order or treaty, or any other foreign or international law, regulation, order, treaty or agreement to which the United States adheres or with which the United States complies, relating to the export or re-export of any Product or associated technical data. Buyer has no authority to sell or otherwise redistribute a Product within the United States or in any other territory, country or jurisdiction. Buyer shall deliver to Nonin, upon Nonin’s request, written assurance regarding compliance with this section in form and substance acceptable to Nonin. Buyer shall defend, indemnify, and hold Nonin harmless from any loss, claim, damage, liability, or expense (including, without limitation, reasonable attorneys’ fees) arising out of or in connection with any violation of this section.
6. DELIVERY, RISK OF LOSS
6.1 Delivery. Estimated ship dates will be provided to Buyer. Nonin shall make commercially reasonable efforts to ship Products by the estimated ship dates, but shall not be liable for any failure to meet such date(s).
6.2 Risk of Loss, Title. Unless otherwise agreed to in writing, delivery shall be complete upon making the Products available to the common carrier, ExWorks Nonin’s designated shipping point, at which point title to and risk of loss to the Products shall pass to Buyer. All freight charges and other transportation, packing, and insurance costs, customs duties, and other similar charges shall be the sole responsibility of Buyer. In the event of any loss or damage to any of the Products during shipment, Buyer should make any claim against the carrier.
6.3 Acceptance of Products. All Products delivered by Nonin to Buyer hereunder shall be deemed to have been accepted by Buyer upon delivery.
7. PRODUCT CHANGES
7.1 Nonin shall have the right to change the manufacture and/or design of any Product, or to discontinue any Product, at any time without notice.
8. FORCE MAJEURE
8.1 Nonin will make commercially reasonable effort to complete shipment, but shall not be liable for any loss or damage for delay in delivery or any other failure to perform due to causes beyond Nonin’s reasonable control, including, without limitation, acts of government or compliance with any governmental rules, regulations, or orders, acts of God or the public, war, civil disturbance, fire or other casualty, pandemic or other widespread health concern, strike or labor dispute, transportation disruption, or unavailability of labor, raw materials, power or supplies. Should such a delay or failure to perform occur, Nonin may reasonably extend delivery or production schedules, or, at its option, cancel the order in whole or in part without liability other than to return any unearned deposit of prepayment. In the event any of the foregoing circumstances results in an increase in costs to Nonin, in addition to the foregoing elections, Nonin may also, upon Notice to Buyer, add any such additional costs to orders which have been accepted and for future orders.
9. WARRANTY; DISCLAIMER
9.1 Nonin warrants to Buyer that the Products are free from defects in materials and workmanship at the time of shipment from Nonin. This warranty does not cover consumable items such as, but not limited to, alkaline batteries and disposable sensors. Nonin’s obligation under this warranty is limited to the repair or replacement of, or credit for, defective parts or Products, all of which shall be determined in Nonin’s sole discretion.
9.2 No warranty extended by Nonin shall apply to any Products which are expired or exceed the shelf life date for such Product printed on the Product packaging, and/or are damaged, defective, or outside specifications due to: (a) accident, misuse, abuse, negligence, improper application, alteration or a force majeure occurrence as described herein; (b) Buyer’s failure to operate the Products in accordance with the manufacturer’s specifications, intended use, indications for use, or instructions; (c) unauthorized attempts to repair, maintain, service, add to or modify the Products by Buyer or any third party; (d) causes arising from or attributable to non-Nonin supplied or non-Nonin authorized parts or equipment; (e) failure to maintain the recommended operating environment; and/or (f) the use of cleaning agents or chemicals not approved by Nonin.
9.3 This warranty excludes cost of delivery to and from Nonin unless otherwise required by law. All units sent for repair will be delivered as directed by Nonin technical services either to Nonin or a Nonin designated technical service location. Repairs or replacements shall not interrupt, extend, or prolong the term of the warranty unless and only to the extent required by law. Buyer shall, upon Nonin’s request, return any purported defective Product or part to Nonin. Buyer shall pay Nonin’s normal charges for service and parts for any inspection, repair, or replacement that is not, in Nonin’s sole judgment, covered by the warranty set forth in this section.
9.4 This warranty is made on the condition that prompt written notice of any warranty claim be given to Nonin and Nonin’s inspection reveals that the Buyer’s claim is valid under the terms of the warranty. Prior to returning any Product, Buyer shall notify Nonin of the intended return and mark such Products (or shipping container) so returned with a return authorization number provided by Nonin. Buyer agrees not to return any Product without the prior written approval of Nonin.
NONIN MAKES NO WARRANTY OTHER THAN THE LIMITED WARRANTY SET FORTH IN THIS SECTION. SUCH WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH WARRANTIES ARE EXPRESSLY DISCLAIMED.
10. LIMITATION OF LIABILITY
10.1 In no event shall Nonin’s liability hereunder exceed the actual loss or damage sustained by Buyer, up to a maximum amount not to exceed the purchase price of the Product in question.
10.2 NONIN SHALL NOT BE LIABLE FOR ANY LOSS OF USE, REVENUE, OR ANTICIPATED PROFITS, LOSS OF STORED, TRANSMITTED, OR RECORDED DATA, OR FOR ANY INCIDENTAL, UNFORESEEN, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SALE OR USE OF THE PRODUCTS. THE FOREGOING IS A SEPARATE, ESSENTIAL TERM OF THIS AGREEMENT AND SHALL BE EFFECTIVE UPON THE FAILURE OF ANY REMEDY, EXCLUSIVE OR NOT.
11. INDEMNIFICATION
11.1 Indemnification by Nonin. Subject to the limitations and conditions set forth the foregoing sections, Nonin will defend and indemnify Buyer and hold Buyer harmless against costs, expenses, and liability upon any claim by any third party (i) directly arising from any defect in the Product or (ii) that the Product or any part thereof infringes or violates any copyright or patent of such third party. The indemnification hereunder is void unless and until the following conditions are satisfied in Nonin’s sole discretion: (a) Buyer notifies Nonin promptly in writing of any notice of such claim; (b) Buyer cooperates with Nonin in all reasonable respects in connection with the investigation and defense of any such claim; and (c) Nonin shall have such control of the defense of any action on any such claim and all negotiations for its settlement or compromise as shall be determined by Nonin.
11.2 Should the Product become, or in Nonin’s opinion be likely to become, the subject of a claim of copyright or patent infringement or trade secret misappropriation, Buyer shall permit Nonin, at Nonin’s option and expense, either to: (i) procure for Buyer the right to continue using the Product; or (ii) replace or modify the same so that it becomes non-infringing, provided such modification does not diminish the Product’s functionality. If neither of these alternatives is available on terms reasonable to Nonin, then Buyer shall return the Products to Nonin and Nonin shall refund to Buyer the purchase price paid by Buyer less reasonable depreciation for Buyer’s use of the Products.
11.3 Indemnification by Buyer. The indemnification provided by Nonin herein shall not apply to any Product, or any part thereof, manufactured to Buyer’s own design or Buyer-specific specifications, or to any Product that has been modified by or for Buyer in such a way as to cause it to become defective and/or infringing. As to such Product(s) or part(s) thereof, Nonin assumes no liability, including, without limitation, any liability for patent or copyright infringement or use of a Product past its shelf life date. Should a claim be made against Nonin with respect to such Product(s), then, except to the extent prohibited by law, Buyer shall indemnify and hold Nonin harmless against any loss, claim, damage, liability, or expense (including, without limitation, reasonable attorneys’ fees), incurred by Nonin in connection therewith.
12. SOFTWARE LICENSE/INTELLECTUAL PROPERTY LICENSE
12.1 Any drawings, data, designs, software programs, or other information (collectively, the “Product Software”) supplied by Nonin to Buyer in connection with the sale of the Products are not included in the sale of the Products to Buyer and shall remain Nonin’s property. Product Software includes any and all copies of (i) software programs consisting of a series of statements or instructions to be used directly or indirectly in a programmable controller or computer to bring about a certain result and (ii) databases consisting of systemized collections of data to be used or referenced directly or indirectly by a programmed controller or computer. Buyer shall have a license to use the Product Software as it is integrated into or associated with the Products in the ordinary course of business and for the purpose and in the manner for which the Product Software was designed and produced subject to the terms of this Agreement. Buyer will not translate, modify, reverse engineer, disassemble, decompile, or create derivative works based on any of the Product Software or permit any third party to do so. The Product Software may not be copied or transferred to another party or made commercially available in any other device.
12.2 Diagnostic and maintenance software is not included under this section, but may be available under a separate license agreement and may be subject to a licensing fee.
13. MODIFICATION
13.1 This Agreement may not be changed, modified, or amended except in writing, signed by duly authorized representatives of Nonin and Buyer, which explicitly references this Agreement.
14. WAIVER
14.1 No failure and no delay in exercising, on the part of any party, any right under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right preclude the further exercise of any other right.
15. GOVERNING LAW
15.1 This Agreement shall be governed by the laws of the State of Minnesota without giving effect to its conflict of laws provisions. All actions, suits, or proceedings arising out of or based upon this Agreement or the subject matter of this Agreement shall be brought and maintained exclusively in the federal or state courts located in Hennepin County in the State of Minnesota, and Buyer consents to the sole and exclusive jurisdiction of such courts.
16. ENTIRE AGREEMENT
16.1 This Agreement constitutes the entire agreement with respect to the subject matter hereof, and supersedes any and all prior agreements, understandings, and communications between the parties with respect to the Products; provided, however, that the terms of any written agreement already in force between Nonin and Buyer governing the purchase of Products shall not be superseded hereby and shall control over any conflicting terms of this Agreement.