Sofregen Medical Inc. Terms and Conditions of Sale

  1. Acceptance:

Customer agreed to be bound by the terms and conditions of this invoice when it executed a Sofregen Medical, Inc. (“Sofregen”) credit application, thereby creating a binding contract between Sofregen and Customer. Customer separately agrees to be bound by and accepts the terms and conditions of this invoice by accepting delivery of the product(s) identified herein, unless Customer returns such product(s) to Sofregen in accordance with Sofregen’s then current Return Goods Policy. Customer acknowledges that Sofregen sells the items covered by this invoice solely pursuant to the terms and conditions set forth in this invoice. None of the terms and conditions contained in this invoice may be added to, modified, superseded, or otherwise altered except by a written document signed by an authorized representative of Sofregen. Any terms and conditions that may be contained in any purchase order or other form of Customer will be absolutely without force and effect, regardless of when received by Sofregen. Customer acknowledges that it has reviewed this invoice in its entirety for the current and applicable terms and conditions relating to this shipment of Sofregen products to Customer.

  1. Force Majeure:

Sofregen will not be liable for any delays in making delivery where occasioned by strikes, differences with workers, or any causes beyond the control of Sofregen, including but not limited to, fires, floods, accidents, action of any governmental authority, war, insurrection or riots, or shortages of labor, energy, raw materials, production facilities, or transportation. Where delays or failures of delivery are caused by labor difficulties, Sofregen will not be obligated to seek or obtain any settlement which, in Sofregen’s sole judgment, is not in Sofregen’s best interest.

  1. Warranty; Limitation of Liability:

Sofregen warrants that the goods covered by this invoice conform to their published specifications. EXCEPT AS MAY OTHERWISE BE EXPRESSLY SET FORTH HEREIN, SOFREGEN MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL SOFREGEN BE RESPONSIBLE FOR SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING LOST PROFITS OR COSTS OF REPLACEMENT, EVEN IF SOFREGEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOFREGEN’S LIABILITY FROM ANY AND ALL CAUSES PURSUANT TO THIS INVOICE WILL BE LIMITED TO GENERAL MONEY DAMAGES IN ANY AMOUNT NOT TO EXCEED THE TOTAL PURCHASE PRICE FOR THE GOODS COVERED BY THIS INVOICE, REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT AGAINST SOFREGEN.

  1. Returned Goods Policy:

Sofregen, upon issuance of a returned good authorization to the customer, will accept for credit or exchange all Sofregen products returned within sixty (60) days after date of invoice.  No credit will be issued on products returned later than sixty (60) days after date of invoice.  No credit will be issued on opened product/packaging.  Mail returns to the following address:  Sofregen Medical, c/o Kuehne+Nagel, Attn: Sofregen Returns, 1800 Waters Ridge Road, Suite 100, Lewisville, TX, 75057.  If you have any questions regarding returns, please call Sofregen’s customer service line at (617) 651-8868.

  1. Security Interest:

Sofregen reserves a purchase money security in the goods covered by this invoice in the amount of the unpaid balance of the purchase price until payment in full of the purchase price is made in accordance with the terms and conditions set forth on the front of this invoice. A financing statement under the Uniform Commercial Code may, in Sofregen’s sole discretion, be filed with the appropriate public authorities, and Customer agrees to sign any forms presented to it by Sofregen from time to time to protect Sofregen’s security interest.

  1. Price Changes:

Prices quoted in Sofregen’s product catalog are subject to change without notice at any time and from time to time. Goods are invoiced at prices prevailing on the date of shipment.

  1. Payment; Taxes:

Sofregen’s standard payment terms are net-30 days.  If payment is not made by the date set forth on the front of this invoice, interest at the maximum rate then allowed by law may be charged to Customer until payment in full is made. In addition, Sofregen reserves all other rights granted to a seller pursuant to the Uniform Commercial Code for Customer’s failure to pay for the goods or any other breach by Customer of the terms and conditions of this invoice. Customer agrees to reimburse Sofregen for any and all expenses Sofregen may incur, including reasonable attorney’s fees, in taking any action to collect any amounts due Sofregen. There will be added to the purchase price amounts equal to any sales, use, or equivalent taxes levied or based upon the goods or their value, unless Customer provides Sofregen with an appropriate exemption certificate.

  1. Cancellation:

Cancellation or modification of orders is subject to Sofregen’s prior written consent in each instance.

  1. Title and Risk of Loss:

All orders shipped within the United States will be shipped via two (2) day delivery to Customer FCA (Incoterms 2010) Sofregen’s shipping point. Sofregen and Customer will negotiate in good faith regarding any goods lost, damaged or destroyed while in transit.

  1. Indemnification:

Customer agrees to fully defend, indemnify, and hold harmless Sofregen, its subsidiaries, affiliates, parents, partners, their successors and assigns, and each of their past and present directors, officers, employees and agents, jointly and severally, from and against any and all losses, damages, liabilities, and claims of any kind, including, without limitation, reasonable attorney’s fees and expenses, arising from any use of Sofregen’s products by Customer other than in accordance with such product’s labeling or any wrongful or negligent acts or omissions of Customer in purchasing, selling or using Sofregen’s products, including, but not limited to, Customer’s failure to charge applicable sales, use, or equivalent taxes when selling such products, Customer’s failure to maintain a valid license or certification with the applicable entity that allows Customer to purchase, sell, or use such products or practice medicine, or any other acts or omissions.

  1. Order Acceptance:

Sofregen reserves the right to accept or reject any order or purchase order in whole or in part. Possession of a product catalog by Customer does not constitute an offer to sell. In addition, on orders for non-stock goods, or special orders, or where manufacturing processes make it difficult to provide the exact quantity specified, Sofregen reserves the right to under ship or over ship and invoice Customer accordingly.

  1. Mode of Packaging or Shipment:

Sofregen reserves the right to pack or ship orders in the most economical manner. However, where Customer requests special packaging or shipping, any additional cost will be billed to and be the responsibility of the Customer.

  1. Design Changes:

Sofregen reserves the right to alter, modify, or redesign its goods without any obligation to replace previous shipments to Customer.

  1. Delivery; Export Control:

Customer is advised that quoted ship dates are based on estimates at the time of quotation and that Sofregen will devote its commercially reasonable efforts to meeting such schedules. However, Sofregen assumes no liability for additional costs or damages resulting from late deliveries. In no event will Customer take any action(s) contrary to the United States export laws and regulations in effect as of the date of shipment, including without limitation, diversion of goods.

  1. No License:

The sale of goods covered by this invoice will not confer upon Customer any license to manufacture under any patents or proprietary rights owned or controlled by Sofregen, its subsidiaries, affiliates, licensors or suppliers; it being specifically understood and agreed that all such rights are reserved to Sofregen, its subsidiaries, affiliates, licensors or suppliers.

  1. Arbitration:

Any dispute, controversy, or claim arising out of or relating to this invoice will be settled by arbitration in accordance with the rules then obtaining in the American Arbitration Association. Such arbitration will be held in Boston, Massachusetts, and judgment upon the award rendered may be entered in any court having jurisdiction, and the parties consent to the jurisdiction of the state and federal courts in Massachusetts for this purpose.

  1. Entire Agreement; Headings; Validity:

Customer acknowledges that it has not been induced to purchase goods from Sofregen by any representation or warranty not set forth in this invoice. This invoice contains the entire agreement of Sofregen and Customer and supersedes all existing agreements and all other oral or written communication between them concerning its subject matter. This invoice cannot be modified in any way except by a writing signed by Sofregen and Customer. The paragraph headings contained in this invoice are intended for convenience of reference only and will not affect the interpretation of any provision. If any provision of this invoice is held to be invalid, illegal, or unenforceable, the validity, legality, or enforceability of the remaining provisions will in no way be affected or impaired. This invoice and the rights of the parties hereunder will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding any choice of law provisions that would lead to the application of the laws of another jurisdiction.