General Terms and Conditions of Sale
All Model 400 Patient Monitors, Extension Modules (such Model 400 Patient Monitors, Extension Modules, and all couplings are referred to herein as “Monitors”), SmartTouch™ Sensors, Patient Cables, Optical Sensors, Sensor Receptacles, accessories (such SmartTouch Sensors, Patient Cables, Optical Sensors, Sensor Receptacles, and accessories being purchased by Customer are referred to herein as the “Supplies”), Monitors and Supplies are together referred to herein as “Equipment”) furnished by ivWatch, LLC (“ivWatch”) shall be in accordance with the following terms and conditions. All entities borrowing and purchasing Equipment from ivWatch are referred to herein as “Customer.”
1) ACCEPTANCE AND COMPLETE AGREEMENT
- The General Terms and Conditions constitute the entire agreement (“Agreement”) between ivWatch and Customer. Customer acknowledges that the terms and conditions of Customer’s Purchase Order are not part of this Agreement unless completely consistent with the terms contained herein. Acceptance of products from ivWatch by Customer shall be deemed to be an acceptance of these terms and conditions. Notwithstanding the foregoing, if at the time of a loan or purchase of Equipment to Customer there is in effect a customer master agreement (such as a distributor agreement, purchasing agreement or equipment loan agreement) between ivWatch and Customer, any of these terms and conditions which are inconsistent with the provisions of such agreement shall be ineffective and the terms of the customer master agreement shall control.
- These Terms bind Customer and its successors and permitted assigns.
2) PACKAGING AND SHIPPING
- ivWatch shall be responsible for packaging, marking and designating a carrier for the Equipment in accordance with good commercial practices and all applicable laws. An itemized packing list shall accompany each shipment.
- All Equipment furnished hereunder will be shipped FOB Origin. Title in, risk of loss, and the right of possession to the Equipment shall pass to the Customer upon ivWatch’s delivery to carrier at ivWatch’s shipping facility, and ivWatch is not responsible for damage or loss in transit, regardless of whether or not Customer may have the right to reject or revoke acceptance of the Equipment. ivWatch can arrange for in-transit insurance at Customer’s expense but will not do so without Customer’s written instructions. For customers borrowing and purchasing equipment from ivWatch pursuant to an equipment loan agreement, ivWatch shall pay all expenses and costs of delivering the first shipment of Equipment to a location designated by Customer. ivWatch shall also pay all expenses and costs of recovering the Equipment surrendered by Customer. All other applicable shipping charges are the responsibility of the Customer and will be paid directly by the Customer or paid by ivWatch and invoiced to the Customer.
- Delivery dates are estimates only and are not guaranteed. ivWatch will use every commercially reasonable effort to make shipments as scheduled and reserves the right to make partial deliveries.
- The carrier shall not be construed to be an agent of ivWatch. ivWatch shall not be held responsible for delays by carrier to make deliveries for any cause.
- If the Equipment ordered is to be exported from the United States, the quoted shipping dates are subject to receipt of all export documents and authorizations. Customer agrees to provide ivWatch in writing with the ultimate destination and identity of the end-user at the time the order is placed if the Equipment is to be exported. Customer shall be responsible for all export requirements of the United States and all import requirements of any country into which Customer seeks to import the Equipment.
3) ACCOUNT ACCEPTANCE, PAYMENT, SERVICE CHARGE AND TAXES
- Customer must establish a valid purchasing account with ivWatch prior to purchase order acceptance. Orders are subject to ongoing credit review and approval.
- Payment is due net thirty (30) days from invoice date subject to credit approval.
- Service charges of 1 1/2 % per month or the maximum rate permitted by law, if lower, may be charged on past due amounts.
- Customer shall pay all sales, use, property, excise, or similar taxes, except on ivWatch’s income, levied upon the sale, use, or ownership of the Products.
4) LIMITED USE
- Possession of the Equipment does not convey any express or implied license to use the Equipment with unauthorized receptacles, or sensor cables that would, alone, or in combination with the Equipment, fall within the scope of one or more of the patents relating to the Equipment.
- Customer will not permit the Equipment to be used by anyone other than Customer’s qualified and trained personnel.
- Customer may not reverse engineer, disassemble, disable, modify, adapt, alter, access, reproduce, de-compile, re-label, loan, rent, lease, assign, transfer, sub-license, or otherwise misuse or tamper with the Equipment, including the Software or Intellectual Property, without ivWatch’s prior written consent, which may be withheld at ivWatch’s sole discretion; any attempt to do so will render the license null and void and use of the Software and Intellectual Property invalid.
- ivWatch neither represents nor warrants that the Equipment, including the Software, may be used for any processes, procedures, experiments or any other use for which the Equipment is not intended or cleared by the Food and Drug Administration (FDA), and/or applicable regulatory agencies for where the ivWatch products are registered, or in any manner inconsistent with the instructions for use or labeling.
- The Equipment contains ivWatch proprietary technology and/or software (“Software”), trade secrets and other proprietary information (collectively, “Intellectual Property”). ivWatch grants to Customer a non-exclusive, non-transferable, license to use the Software and Equipment in conformance with the instructions for use and labeling and this Agreement. Notwithstanding any other provision of this Agreement, Software and Equipment are licensed, not sold. This Agreement does not constitute a sale of the Equipment, trade secrets, any copy of the Software or any Intellectual Property.
- Equipment manufactured by ivWatch is warranted solely to the original Customer until the Equipment’s expiration date, or if none, after one (1) year from date of shipment from ivWatch when properly installed and maintained under normal use and service. Under this Warranty, ivWatch agrees to provide at no cost to Customer the following limited warranties: (i) the Equipment shall function properly in accordance with its labeling and instructions for use; (ii) the Equipment shall be free from defects in materials or workmanship; and (c) the Equipment shall conform to the published specifications (collectively, the “Warranty”). Exceptions to this Warranty are set forth in Section 6b. ivWatch’s sole obligation shall be to repair or replace, at ivWatch’s option, any defective component or item and pay transportation expenses for such replacement. Customer shall provide labor for the removal of the defective component or item and installation of its replacement at no charge to ivWatch. Customer shall bear all risk of loss or damage to returned goods while in transit. In the event no defect or breach of warranty is discovered by ivWatch upon receipt of any returned item, the item will be returned to Customer at Customer’s expense and Customer shall reimburse ivWatch for the transportation charges, labor and associated charges incurred in testing the allegedly defective item.
- This Warranty does not apply or extend to any Equipment that is (i), abused, neglected, misused, improperly operated, installed, maintained or stored, or damaged by the negligence of any party other than ivWatch; (ii) modified, disassembled, or reassembled; (iii) repaired, altered, or had other work performed thereon by Customer or others, other than work performed with ivWatch’s authorization and according to its approved procedures; (iv) used with supplies, devices or electrical work external to the Equipment or not manufactured by ivWatch; (v) used with sensor cables or any accessories other than those manufactured by ivWatch; (vi) put to a use not in accordance with its instructions, or for a purpose not indicated on the labeling, or used in environments for which it is not intended; or (vii) where the Software has been damaged, modified by anyone other than ivWatch or without the express written authorization of ivWatch, or used contrary to ivWatch’s instructions. Warranty does not extend to any equipment or software not manufactured by ivWatch. Warranty will be immediately voided by substitution of parts not approved by ivWatch. The foregoing warranty is in lieu of and excludes all other express or implied warranties, arising by operation of law or otherwise, and no other warranties exist, including, without limitation, the implied warranties of merchantability or fitness for particular purpose.
7) LIMITATION OF LIABILITY
- ivWatch shall not be liable for any special, indirect, incidental, economic or consequential damages or losses resulting from this agreement or out of the use or inability to use the products or support provided by ivWatch, including but not limited to claims for lost business, lost profits, loss of good will, loss of data, data recovery costs, or any other type of indirect damages, even if ivWatch has been advised of the possibility of such damages.
- Customer shall indemnify and hold harmless ivWatch, its affiliates, directors, officers, employees and agents from and against any suits, claims, losses, demands, liabilities, damages, costs and expenses (including costs, reasonable attorney’s fees and reasonable investigative costs) in connection with any suit, demand or action by any third party to the extent such suit, demand, or action arises out of or results from its use or sale of the Equipment purchased or borrowed by Customer from ivWatch, except to the extent that such suit, demand or action arises out of the failure of such Equipment to meet the Warranty set forth above.
- ivWatch will defend, indemnify and hold Customer harmless against infringement or alleged infringement directly resulting from Equipment furnished under this Agreement, of any patent, copyright, trademark, trade secret or any other proprietary right of any third party. In the event of such claim, ivWatch may, at its sole discretion, (i) modify the particular Equipment to make it non-infringing, (ii) obtain a license to allow the continued use of the Equipment, or (iii) terminate this Agreement, and take possession of and refund all fees paid for the infringing Equipment, and pay fair market value, but no more than the price paid by Customer for the infringing Equipment, if any.
- ivWatch shall have no liability or responsibility of any kind to Customer under this Section 8 unless Customer (i) promptly notifies ivWatch of such claims; (ii) gives ivWatch an adequate opportunity to defend, including complete control of such defense; and (iii) provides reasonable assistance to ivWatch, at ivWatch’s expense and request, in connection with the defense and settlement of any such claim. ivWatch shall have no liability for settlements made without ivWatch’s express written consent. Should Customer desire to have its own counsel participate in any such action, the cost of such counsel shall be exclusively Customer’s. Notwithstanding the above, ivWatch shall not be liable for any infringement of intellectual property rights of third parties or for any liability, loss, damages, costs or expenses which Customer may incur as a result of any injury, illness or death resulting from (i) alterations or modifications to the Equipment made by Customer or others (or by ivWatch, in the case of an infringement claim) at Customer’s request, (ii) electrical/electronics, software/firmware, sensors, or product interface not furnished by ivWatch, (iii) combination of the Equipment with other apparatus or technology not furnished or, in the case of infringement claims, specified in writing by ivWatch, (iv) use of Equipment or components not supplied by ivWatch, (v) use of Equipment not permitted under this Agreement, (vi) Equipment improperly used (including use past the expiration date where applicable) or maintained, or used where defects arose from normal wear and tear; or (vii) for any claims not related directly to the Equipment.
9) RELATIONSHIP BETWEEN PARTIES
- Nothing in this Agreement shall be construed as creating any partnership, joint venture or agency between the parties.
- All notices shall be in writing and delivered either by hand, facsimile or certified mail to ivWatch or Customer. Notice shall be deemed to have been given upon receipt if delivered by hand or facsimile, or if given by certified mail, upon expiration of seven days after mailing.
11) APPLICABLE LAW/VENUE
- This Agreement is subject to laws of the Commonwealth of Virginia. The Terms and Conditions of this Agreement and any dispute or claim arising out of or relating to these Terms and Conditions or the sale of Equipment (“Claim”) shall be governed by and construed under Commonwealth of Virginia law, notwithstanding its law of conflicts of law. Any action or proceeding relating to a Claim shall be brought against either of the parties only in the state or federal courts in Richmond, Virginia, and Customer consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and hereby irrevocably waives any objection to such jurisdiction and venue. If any Claim cannot be settled amicably between the parties, such Claim shall be tried by a court and not a jury. Customer expressly and unconditionally waives its rights to a jury trial in any such Claim.
- ivWatch reserves the right from time to time to substitute a product with a product that has the same function as such product, or to delete a product.
13) REIMBURSEMENT COVERAGE
- Customer acknowledges and confirms that: (a) Customer has reviewed and understood all rules and guidelines for Medicare and other public and private insurance reimbursement coverage applicable to ivWatch technology; (b) all reimbursements for procedures done with Equipment are subject to Customer’s compliance with requirements & policies set by Medicare and other public or private insurance carriers, and neither those requirements & policies nor Customer’s compliance with them are within ivWatch’s responsibility or control; (c) ivWatch and its representatives have made no representation, warranty or guarantee to Customer of payment or reimbursement by any public or private insurance carrier for any procedures done with Equipment, and (d) ivWatch is not responsible or liable to Customer in any way for any costs, damages, amounts, etc. that may arise or be incurred if any insurance carrier denies reimbursement for any procedure the Customer does with Equipment.
14) SALES FINAL
- All sales under this agreement are final. ivWatch will accept no equipment returns and will not be liable to customer or any third party for any consequences of any unauthorized return. Any exceptions to this paragraph must be approved by ivWatch in writing in advance.
- Pricing is confidential and shall not be disclosed to any third party.
16) SAFE HARBOR
- The terms of this Agreement are permitted under the discount safe harbor of 42 C.F.R. § 1001.952(h) which is a statutory exception to the anti-kickback law specifically where the offer and acceptance are part of an arm’s length transaction and two conditions are met, namely that (i) the discount must be fixed and disclosed in writing to Customer at the time of the transaction and (ii) Customer must disclose the arrangement to the government if requested; and a discount arrangement where ivWatch gives away or reduces the price of one piece of Equipment in connection with the acquisition of another are explicitly permitted under 64 Fed. Reg. 63530.
17) ACKNOWLEDGEMENT AND ACCEPTANCE
- ivWatch reserves the right to revoke this offer at any time prior to its acceptance. This Agreement contains the entire understanding between ivWatch and Customer; supersedes all prior understandings, written or oral, regarding the subject of this Agreement; and may only be amended, modified or superseded by a written agreement signed by ivWatch and by Customer. Only officers of ivWatch and Customer have the authority to sign such an amending document.