Terms and Conditions
1. Sale of Products. Products furnished by ReShape Lifesciences™ (the “Company”) to you (“Buyer”) are sold only on the Terms and Conditions set forth herein. Buyer shall issue written purchase orders that shall, among other things, set forth the number of units of the products being purchased by Buyer, the proposed delivery schedule and the place of delivery. Acceptance by the Company of the Buyer’s order will give rise to a binding contract between the parties which, except as otherwise specifically provided herein, may not be canceled or modified by either without the consent in writing of the other. In the event Buyer fails to accept materials ordered or advises the Company of its intention not to accept deliveries, Buyer shall be liable for the Company’s cancellation charges which shall not exceed the purchase price of the undelivered materials. Notwithstanding any terms and conditions on Buyer’s purchase order, the Company’s performance of any purchase order or contract is expressly made conditional on Buyer’s agreement to these Terms and Conditions unless otherwise specifically agreed to in writing by the Company. Buyer acknowledges and agrees that only licensed physicians trained by the Company on the proper use of the products furnished by the Company hereunder are permitted to use such products.
2. Prices: Buyer shall pay the Company for the products according to the Company’s then current prices. Prices indicated on any price lists are exclusive of all federal, state, municipal and all other governmental excise, medical device, sales, use, and similar taxes, VAT, duties, or tariffs, which will be charged to Buyer, and Buyer agrees to pay all such taxes, duties, and tariffs. Buyer must provide the Company with written certification for any claim of tax or other exemption prior to shipment of Buyer’s order. If the Company is required to pay additional taxes, fees or charges at the time of sale or thereafter, Buyer shall immediately reimburse and hold the Company harmless for all such taxes, fees and charges.
3. Payment Terms: Upon approved credit, payment is due net 30 days from the date of the Company’s invoice, at the address specified on such invoice or at such other address as the Company may specify. All invoices and payments will be in USD$. Acceptable forms of payment are check, ACH, or wire transfer drawn on a U.S. financial institution or by credit cards accepted by the Company (American Express, Visa, MasterCard or Discover). Overdue payments are subject to finance charges at the lower of the rate of one and one-half percent (1.5%) of the invoice amount per month or the maximum rate permitted by applicable law. Buyer’s obligations to pay the invoiced amount shall be absolute and unconditional and are not subject to any abatement, set-off, defense or counterclaim for any reason whatsoever. In the event Buyer fails to fulfill previous terms of payment or in case the Company shall have any doubt at any time as to Buyer’s financial responsibility, the Company may decline to make further deliveries except upon receipt of cash or other special arrangements. In the event Buyer shall default in its obligations hereunder and the Company commences any action or otherwise seeks to enforce this agreement against Buyer, Buyer agrees to pay the Company’s cost of collection, including, without limitation, reasonable attorneys’ fees, court costs and other expenses incurred by the Company.
4. Delivery and Shipment: Delivery of products shall be F.O.B. shipping point, at which time title and risk of loss shall pass to Buyer. The Company will select a carrier in its sole discretion to ship the products to Buyer at the place of delivery designated on the subject purchase order, but in no event shall the Company be liable for any delay in delivery or assume any liability in connection with the shipment. Buyer shall pay all shipping and insurance charges, and other similar charges, in connection with the transportation of the products to the place of delivery. The Company reserves the right to ship items in a single shipment or in multiple shipments. Delivery schedules for the products are subject to the Company’s then-current lead times and product availability. The Company will make reasonable efforts to meet delivery dates quoted or acknowledged, but shall in no event be liable for failure to meet any such date(s).
5. Acceptance: Buyer will have the right to visually inspect the products upon delivery by the Company. Buyer shall have the right to reject each shipment within two (2) business days of delivery if the product is damaged or if the product type or quantity does not conform to the purchase order. If Buyer receives the products or takes possession of them without inspecting, this will constitute a waiver of its right to inspect. All products shall be deemed accepted by Buyer, unless Buyer provides the Company with notice of receipt of damaged products and Buyer’s rejection specifies the specific nature of the damage, within two (2) business days of delivery of the products, by calling the Company’s Customer Service Department at 1-800- LAPBAND
6. Returns: The return of any products will be accepted only with prior authorization by the Company’s Customer Service Department, who may issue Buyer a Return Goods Authorization (RGA) number. Returned items must be in original, unopened shipping cartons in saleable condition and must be accompanied by the RGA number. Buyer should not assume the right to return any product at any time. Credit may be issued only for items returned with the Company’s approval. No credit will be issued on opened or damaged product boxes. Return and Credit will be allowed on product return requests communicated to ReShape Lifesciences within 30 days after date of invoice. All products must then be returned within ten (10) business days of receiving a Returned Goods Authorization from ReShape Lifesciences. ReShape Lifesciences reserves the right to destroy, without notification, credit, exchange or return to the customer, any returned product that does not conform to these terms. Exchanges may only be made for products in the same class and price, and may not be made for new technologies. Buyer shall be responsible for all costs of such return shipments and shall bear the risk of loss.
Limited Warranty. Upon receipt of an order, the buyer has the right to refuse a shipment if the product expiration date is not acceptable to the facility. If an order is received and accepted by the facility, and at a later date wants to return expired product, the facility should contact Customer Service. Customer Service will then verify the lot number and expiration date. Upon verification, Customer Service will authorize the exchange if the facility has followed FIFO inventory procedures and the product has not been previously replaced for expiration. Products which do not conform to the published specifications (as the Company may revise from time to time) or which are defective in material or workmanship will be replaced or, at the Company’s option, credit for their original purchase price will be allowed provided the Company is notified of such defect within 30 days after delivery and Buyer returns such products in accordance with the Company’s instructions. It is Buyer’s responsibility to check the products upon receipt before putting into process. This warranty does not cover damage caused by use of the product for any purpose for which it was not designed, damage caused by unauthorized modifications, damage during shipping or storage, or any other abuse or misuse by Buyer.
THE WARRANTIES IN THIS SECTION ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; PROVIDED, THAT NOTHING IN THESE TERMS AND CONDITIONS SHALL BE DEEMED TO EXCLUDE OR LIMIT ANY LIABILITY UNDER ANY LAW OR STATUTE WHICH, UNDER SUCH LAW OR STATUTE, CANNOT BE EXCLUDED OR LIMITED. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE PRODUCTS, WHETHER MADE BY THE COMPANY’S EMPLOYEES OR OTHERWISE, SHALL BE DEEMED TO BE A WARRANTY OR SHALL GIVE RISE TO A LIABILITY OF THE COMPANY UNLESS CONTAINED IN THESE TERMS AND CONDITIONS.
7. Limitation of Liability. THE COMPANY SHALL HAVE NO LIABILITY FOR LOSS ARISING FROM ANY CLAIM MADE AGAINST BUYER, OR FOR SPECIAL, INDIRECT, RELIANCE, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF USE, PROFITS, REVENUES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS BASED ON ANY BREACH OR DEFAULT OF THE COMPANY, HOWEVER CAUSED, AND UNDER ANY THEORY OF LIABILITY. BUYER’S SOLE REMEDY AND THE COMPANY’S SOLE AND TOTAL LIABILITY FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT (INCLUDING BREACH OF WARRANTY) OR TORT (INCLUDING NEGLIGENCE OR MISREPRESENTATION) OR UNDER STATUTE OR OTHERWISE SHALL BE LIMITED TO AND SHALL NOT EXCEED THE AGGREGATE AMOUNTS PAID BY BUYER TO THE COMPANY FOR PRODUCTS WHICH GIVE RISE TO CLAIMS. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8. Indemnity. Buyer shall indemnify and hold harmless the Company from any and all claims, damages, losses or expenses, which are caused by or arise out of any act or omission of Buyer, or Buyer’s agents, employees or subcontractors, in the handling, storage or use of the products in a manner inconsistent with applicable guidelines, including the instructions for use for such product.
9. Intellectual Property Infringement. The Company will defend or settle at its own expense any suit or action which may be brought against Buyer for alleged infringement of any U.S. patents or other intellectual property of third parties by reason of Buyer’s proper use of the Company’s products and will indemnify and hold Buyer harmless from and against all damages and costs which may be adjudged or decreed against Buyer on account of such infringement in any such suit or action and actually paid by Buyer; provided, however, that Buyer shall have given prompt written notice to the Company of any claim of such alleged infringement and of the commencement, or any written threat of commencement, of any such suit or action, and shall permit the Company to have full control over the defense or settlement of the same; and provided further, that Buyer shall not settle or compromise any such suit or action without the prior written consent of the Company. The remedies set forth in this paragraph shall constitute Buyer’s sole and exclusive remedy and the Company’s sole liability in connection with alleged infringement of any third party intellectual property rights.
10. Confidential Information. The information and material contained herein is submitted in confidence and with the condition that it will not be copied or otherwise reproduced and will not be used or disclosed to anyone outside Buyer’s company except as authorized in writing by the Company. Buyer acknowledges that by reason of its agreements with the Company hereunder, it will have access to certain information and materials concerning the Company’s products that are confidential and of substantial value to the Company, which value would be impaired if such information were disclosed to third parties. Buyer agrees that it will not use in any way for its own account or the account of any third party, nor disclose to any third party, any such confidential information revealed to it by the Company.
11. Changes; Discontinued Products. The Company reserves the right at any time, without notice, to make changes in design or additions to or improvements in its products without liability or obligation to install such change, addition, or improvement in any product manufactured prior thereto. The Company reserves the right to discontinue or withdraw any products without notice.
12. Force Majeure. The Company shall not be liable for delays in the performance of any purchase order arising out of causes beyond the control and without the fault or negligence of the Company. Causes beyond the Company’s control shall include, but not be limited to, government action or failure of the government to act where such action is required, strike or other labor trouble, fire or unusually severe weather.
13. Miscellaneous. Except as otherwise agreed by the Company and the Buyer in a writing signed by an authorized Company representative, these Terms and Conditions and any document to which these Terms and Conditions are attached by the Company constitute the entire agreement between the Company and the Buyer with respect to the sale of the accompanying products. No modification hereof shall be of any force or effect unless in writing and signed by the party claimed to be bound thereby, and no modification shall be effected by the acknowledgement or acceptance of purchase order forms stipulating different conditions. In the event of any conflict of the terms of a purchase order and these Terms and Conditions, these Terms and Conditions shall prevail. All of the provisions of these Terms and Conditions are separate and severable. If any provisions of these Terms and Conditions are held invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the other portions hereof. The waiver by the Company of any term, provision, or condition hereunder must be in writing and shall not be construed to be a waiver of any other term, condition or provision hereof, nor shall such waiver be deemed a waiver of a subsequent breach of the same condition or provision on any order. The validity, interpretation, construction and performance of these Terms and Conditions shall be governed and construed in accordance with the laws of the State of California, except its conflict of laws principles. Buyer may not, directly or indirectly, assign its rights or delegate its duties under these Terms and Conditions without the prior written consent of the Company.