Customer agrees to purchase and accept Merit products in accordance with these terms and conditions. Merit objects to and rejects any and all terms proposed by Customer, whether contained in Customer’s purchase order or elsewhere. If Merit and Customer have signed a separate, written agreement governing Customer’s purchase of Merit products (“Contract”), then the terms of that Contract shall govern.
Prices and Taxes
Prices are in U.S. Dollars and exclude all taxes, duties or assessments (“Taxes”). Any Taxes which Merit may be required to pay or collect may be added to each invoice or separately invoiced by Merit and promptly paid by Customer.
Customer shall make full payment for all products within thirty (30) days of the invoice date without any offsets or credits, and Merit may suspend production, shipment or delivery of any additional products until such payments are made. Past due invoices shall bear interest at the rate of one and one-half percent per month, but not in excess of the maximum lawful rate, until paid in full.
Title; Shipping and Storage Charges
Title to the products and risk of loss shall pass to Customer at Merit’s shipping point. Customer shall be responsible for shipping charges and Merit assumes no liability in connection with shipment, nor shall any carrier be construed to be an agent of Merit. Freight charges are based on standard rates before volume or other discounts. Freight charges may also include a uniform handling charge of $3.00 per package. Merit shall have the right to assess a storage and handling charge for product left in Merit’s possession after notification to Customer that the products are available to ship. Products held for Customer due to such delay shall be held at Customer’s risk.
Time of Shipment and Shipping
Lead time requirements and delivery dates will vary according to manufacturing and other conditions. Each shipment is to be considered a separate sale.
Until the purchase price for the product has been paid in full, Customer grants Merit a security interest in the products, together with any proceeds, including accounts receivables. Customer authorizes Merit to file any necessary financing statements or other documents to evidence and perfect such security interest.
Cancellation of Purchase Orders
Purchase orders may be cancelled for non-custom products within the same business day, provided that the order has not yet been processed. Purchase orders are non-cancellable for custom products and custom volumes once production of the custom order has been started.
All returns are subject to Merit’s prior approval and shall be governed by Merit’s Product Return Policy (“Return Policy”) in effect at the time of such return. The Return Policy is located at www.merit.com or is available upon request and may change from time to time. Merit reserves the right to evaluate all returns and its decision concerning damage or defects shall be conclusive. Merit will then, at its option, either repair or replace such products or credit Customer’s account in the amount of the original invoice price.
In the event Merit is required by a regulatory agency to recall products, or Merit voluntarily initiates a recall of products, Customer agrees to cooperate with and assist Merit in locating and retrieving the recalled products. Customer shall promptly report to Merit any complaints or other information regarding the products of which it becomes aware that could reasonably be expected to lead to recall or other regulatory action.
Customer shall be in default hereunder if any one or more of the following events occur: (a) Customer shall default in not timely performing or providing any of its obligations to Merit; (b) a receiver, liquidator or trustee of Customer, or any of its property, is appointed by court order; (c) Customer is adjudicated bankrupt or insolvent; (d) any property of Customer is sequestered by court order; (e) a petition is filed by or against Customer under any bankruptcy, reorganization, dissolution or liquidation law of any jurisdiction; (f) Customer becomes insolvent; or (g) in the event that delivery is dependent on Customer’s cooperation, Customer fails to cooperate in effecting delivery at the time agreed upon, or absent such agreement, at the time fixed by Merit. In the event of any such default, all unpaid payments shall become immediately due and payable and Merit shall have the right to consider its contract with the Customer cancelled and to recover damages and shall further have all rights and remedies provided by applicable law.
In connection with Customer’s purchase of products from Merit, Merit may disclose to Customer confidential information of Merit, including without limitation, information pertaining to customers, vendors, products, product specifications, product concepts, pricing, finances, business, marketing, plans, sales, which is the confidential, proprietary information of Merit (the “Confidential Information”). Customer shall not, under any circumstance, use, disclose or make available to any person or entity any of Merit’s Confidential Information except for the limited purpose of the transactions contemplated by Customer’s order of product from Merit and Customer agrees that it shall never use or exploit any such Confidential Information to the detriment of Merit.
Limited Warranty and Disclaimer
Merit represents and warrants that the products shall materially conform to the specifications at the time of shipment to Customer and will remain materially free of defects in materials and workmanship for the period specified on the written limited warranty separately provided with each product. This warranty shall not apply to products that have been (i) modified, changed, repaired, refurbished, reprocessed, or altered by anyone other than Merit; (ii) subjected to misuse, mishandling, re-use, re-sterilization, accident, abuse, neglect or tampering; (iii) damaged by excessive physical, environmental or electrical stress; or that have had a serial number altered, defaced or removed; (iv) combined with any other product; (v) used outside the approved “Indications for Use” as cleared by the relevant competent authority, used contrary to the use outlined in the product specifications or in an application or environment for which such product was not designed or contemplated. Any technical product advice furnished by Merit is provided without duty or compensation and Merit assumes no obligation or liability, all such advice being given and accepted at Customer’s risk. EXCEPT AS EXPRESSLY SET FORTH HEREIN MERIT MAKES NO REPRESENATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, TO CUSTOMER, ITS END-USERS OR ANY THIRD PARTIES WITH RESPECT TO THE PRODUCTS. MERIT DISCLAIMS AND EXCLUDES ANY AND ALL OTHER EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES AGAINST INFRINGEMENT, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL MERIT BE LIABLE TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED UPON LOST GOODWILL, LOST RESALE PROFITS, WORK STOPPAGE, PRODUCT FAILURE, IMPAIRMENT OF OTHER PRODUCTS OR OTHERWISE AND WHETHER IN A CONTRACT, TORT OR OTHER ACTION FOR OR ARISING OUT OF BREACH OF WARRANTY, BREACH OF CONTRACT, DELAY, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE.
In the event Merit Medical’s performance is delayed or made impossible or commercially impracticable due to causes beyond Merit Medical’s reasonable control, such as acts of God; increased costs of materials and/or supplies; fire; explosion; shortages of energy sources, facilities, material or labor; delay or lack of transportation; temporary or permanent plant shutdown; breakdown or accident; compliance with or other action taken to carry out the intent or purpose of any law, regulation or other requirement of any governmental authority, Merit Medical shall have additional time to perform this contract as may be reasonably necessary under the circumstances. However, the obligation of Customer to pay for delivered products is never suspended. In addition, if Merit Medical is unable to produce sufficient product to meet all demands from customers and internal uses, Merit Medical shall have the right to allocate production among its customers in any manner which Merit Medical determines to be equitable.
Customer will comply fully at all times with all applicable laws, including obtaining licenses and other import certifications. Customer will not assist or engage in the diversion of products to any country to which the U.S. has embargoed or restricted the export of goods or services. Customer agrees not to export or re-export U.S.-origin products to any person or entity that has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. Customer represents and warrants that neither the U.S. Bureau of Export Administration nor any other U.S. federal agency has suspended, revoked, or denied its export privileges.
Customer represents and warrants that it will comply fully at all times with the U.S. Foreign Corrupt Practices Act and shall not offer, promise or give, directly or indirectly through a third party or otherwise, anything of value to any government official, political party official or candidate, or any relative, business associate or employee thereof, for the purpose of obtaining or retaining any business involving Merit or its products.
Each party will comply with all applicable laws, regulations, rules, requirements or ordinances of all governmental authorities, including but not limited to ISO requirements, the U.S. Food and Drug Administration, or its foreign equivalent, applicable to the use, re-use, manufacture, sale, distribution, transportation, exportation or importation of products for its particular roles and responsibilities hereunder.
All notices shall be in writing. Customer may not assign its rights or obligations hereunder without the prior written consent of Merit, which consent shall not be unreasonably withheld. These terms and conditions shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns. Merit and Customer are independent contractors, and their relationship is not one of principal and agent. Waiver by Merit of any breach of these provisions shall not be construed as a waiver of any other breach. These terms and conditions shall be interpreted and enforced in accordance with the internal laws of the State of Utah and Customer hereby submits to the personal jurisdiction of the state or federal courts situated in Salt Lake County, Utah. If Merit has to take legal action to collect any amount due hereunder or to enforce these terms and conditions, Customer shall pay all court costs plus reasonable attorneys’ fees incurred by Merit in bringing such legal action. If any provision of these terms and conditions is held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such adjudication shall not affect or modify any other provision of these terms and conditions. The U.N. Convention on the International Sale of Goods (“CISG”) does not apply to the purchase of products. The parties hereby incorporate the requirements of 41 C.F.R §§ 60-1.4(a)(7), 60-250.5(d) and 60-300.5(d), if applicable.