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NATUS MEDICAL INCORPORATED TERMS AND CONDITIONS OF SALE
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1. General: Unless Natus has a separate written agreement with Buyer,
these Terms and Conditions of Sale and the separate Natus Software License
Agreement (“NSLA”) constitute the entire agreement between Natus and Buyer. Any
additional or different terms, including but not limited to those on Buyer’s
purchase order or other forms, are hereby objected to by Natus. Natus’ failure
to object to provisions contained in any communication from the Buyer shall not
be deemed an acceptance of such provisions or a waiver of the terms and
conditions contained herein. Any changes in the terms and conditions of sale
contained herein must specifically be agreed to in writing by a duly authorized
officer of Natus before becoming binding upon Natus. In the event Natus and
Buyer have executed and entered into a corporate account contract covering
Buyer’s purchase of the goods, the terms and conditions contained in such
agreement shall take precedence over those herein.
2. Prices and Taxes: Prices shown on the face of this Acknowledgement are
in U.S. dollars. Irrespective of any prices quoted by Natus or listed in Buyer’s
order, an order is accepted only at the prices shown on the face of this form.
Prices quoted for the terms described on the face of this form are firm and not
subject to re-determination. Prices are exclusive of any other amount including
without limitation fees for export, customs duties, tariffs, special packaging,
transportation, insurance and all federal, state and local charges, fees and
excise, sales, use and other taxes. Any such amount including taxes, fees or
charges imposed by any governmental authority on, or measured by, the
transaction between Natus and Buyer will be paid by Buyer in addition to the
price specified herein. In the event that Natus is required to pay any amount in
addition to the prices on the face of this form, Buyer will reimburse Natus
therefore. If Buyer is exempt from any such amount, Buyer must provide Natus
with a valid exemption.
3. Terms and Method of Payment: Provided that Buyer establishes and
maintains open account credit to Natus’ satisfaction and within credit limits
established by Natus, the invoiced amount shall be due and payable in full and
in U.S. dollars 30 days after the invoice date. Accounts outstanding for more
than 30 days will be subject to a monthly service charge at the rate of 1.5% per
month or the maximum amount permitted by applicable law, whichever is less.
Natus may terminate a Buyer’s open account credit at any time without advance
notice to Buyer.
4. Title, Shipment, Delivery and Risk of Loss: For domestic deliveries,
all deliveries are F.O.B. point of shipment. For international deliveries, all
deliveries are Ex Works point of shipment (Incoterms 2000). For all deliveries,
(i) delivery will be deemed to have occurred upon making the goods available to
a carrier at the shipping point; (ii) title to the goods ordered will pass to
Buyer upon delivery of the goods by Natus to the carrier. Freight and insurance
will be added to invoice as a separate line item. In the event of a loss or
damage of Product shipped, Buyer shall bear complete and exclusive
responsibility to notify Natus within 14 days and Natus shall provide the Buyer
with replacement Product at no charge and Natus will receive any payment from
the insurer. Natus shall arrange for and select the method and route of
shipment. Unless otherwise specified, the goods will be shipped in standard
commercial packaging. When special or export packaging is requested, or in the
opinion of Natus, required under the circumstances, the cost of the same, if not
set forth on the invoice, will be separately invoiced. While Natus may prepay
transportation, insurance and freight charges, all such charges shall be paid by
Buyer and Buyer shall reimburse Natus therefore. Natus reserves the right to
make partial deliveries and to ship as product becomes available. Natus will use
its reasonable commercial efforts to meet estimated delivery times, but Natus
shall not be responsible for any amount, loss, damage, penalty or liability
suffered by Buyer as a result of delay in or failure to deliver the goods.
5. Acceptance: Product shall be deemed accepted upon shipment unless it
is shipped in error. Product shipped in error should be returned by notifying
Natus and receiving a return authorization number. Acceptance of Products
requiring installation by Natus shall be deemed to have occurred when Natus has
completed installation and demonstrated to the Buyer that the Product(s) is/are
(a) operating according to Specifications and (b) completely ready for clinical
use.
6. Limited Product Warranty: Product purchased hereunder may be subject
to a limited product warranty that, if applicable, accompanies the goods and is
available at www.natus.com and is incorporated herein by reference.
7. Limitation of Liability: NATUS’ LIABILITY ARISING OUT OF OR RELATED TO
(I) ANY GOODS; AND (II) THIS AGREEMENT AND/OR SALE SHALL BE LIMITED TO REFUND OF
THE PURCHASE PRICE OF SUCH GOODS. IN NO EVENT SHALL NATUS BE LIABLE FOR LOST
USE, PROFITS, REVENUE, COST OF PROCUREMENT OF SUBSTITUTE GOODS, OR ANY OTHER
SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED
AND UNDER ANY THEORY OF LIABILITY. THE FOREGOING LIMITATIONS SHALL APPLY
REGARDLESS OF WHETHER NATUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND
REGARDLESS OF WHETHER SUCH DAMAGES ARISE OUT OF THIRD-PARTY CLAIMS AGAINST
BUYER.
8. Software/Firmware: Portions of the goods supplied are proprietary to
Natus and others. Buyer is hereby granted a license to use the software sold
with the goods on the terms contained in the NSLA. Natus and such entities,
however, retain for themselves all rights, title, ownership and interest in and
to all proprietary information and other intellectual property rights pertaining
to any goods sold, including without limitation worldwide copyright, trade
secret, patent, trademark and any other proprietary rights. The goods are
offered for sale and are sold by Natus subject in every case to the condition
that such sale does not convey any license, expressly or by implication,
estoppel or otherwise, under any copyright, trade secret, patent, trademark or
other proprietary right, including any right with respect to which Natus can
grant licenses covering complete equipment, or any assembly, circuit
combination, method or process in which any such goods are used as components.
Natus expressly reserves all its rights under such copyrights, trade secrets,
patents, trademarks and other proprietary rights. Buyer covenants that Buyer
will not and will not assist or encourage others to attempt to disassemble, peel
semiconductor components, decompile or otherwise reverse engineer all or any
portion of the goods. Buyer shall not modify, reproduce, sublicense, distribute
or create derivative works from or otherwise provide to third parties the goods,
in whole or in part.
9. Bankruptcy: If Buyer (i) becomes bankrupt or insolvent, (ii) compounds
with its creditors, (iii) commences to be wound up, or (iv) suffers a receiver
to be appointed, Natus will be at liberty by notice in writing to cancel this
contract without judicial intervention or declaration of default by Buyer and
without prejudice to any right or remedy that may have accrued or may accrue
thereafter.
10. Health Information/Indemnification: Buyer shall comply with all laws,
rules and regulations relating to the confidentiality of the physical or mental
health or condition of an individual, the provision of health care to an
individual or payment for the provision of health care to an individual. Buyer
shall indemnify and defend Natus in respect of and hold Natus harmless against
any and all debts, obligations and other liabilities (whether absolute, accrued,
contingent, fixed or otherwise, or whether known or unknown, or due or to become
due, or otherwise), monetary damages, fines, fees, penalties, interest
obligations, deficiencies, losses and expenses (including without limitation
amounts paid in settlement, interest, court costs, costs of investigators, fees
and expenses of attorneys, accountants, financial advisors and other experts,
and other expenses of litigation) incurred or suffered by Natus or any affiliate
thereof resulting from, arising out of, relating to or constituting any
allegation that Buyer’s act or failure to act is a violation of such laws, rules
or regulations, or that such act or failure to act caused or contributed to
Natus' violation of such laws, rules or regulations.
11. Excusable Delays: If the performance of any obligation of Natus is
prevented, restricted or interfered with by reason of any act or condition
whatsoever beyond Natus’ reasonable control (including without limitation,
strike, fire, riot, war, rebellion, insurrection, acts of God, failure or
shortage of transportation, materials or facilities, or governmental
regulations), Natus upon giving prompt notice shall be excused from such
performance to the extent of such prevention, restriction or interference.
12. General: None of the goods or underlying information or technology
may be exported or reexported, directly or indirectly, contrary to any law or
export control. THESE TERMS AND CONDITIONS ARE GOVERNED BY THE LAWS OF THE STATE
OF CALIFORNIA, WITHOUT REFERENCE TO CONFLICT OF LAW PRINCIPLES. The federal and
state courts within the State of California will have exclusive jurisdiction to
adjudicate any dispute arising out of these Terms and Conditions of Sale. These
Terms and Conditions of Sale may not be modified, supplemented, qualified or
interpreted by any trade usage or prior course of dealing not made a part of the
contract by its express terms. The invalidity or unenforceability of any
provision herein shall not affect the validity of these Terms and Conditions of
Sale as a whole and any such provision should be enforced, and reconstructed if
need be, to apply to the maximum extent allowable. The failure of Natus to
enforce at any time any of the provisions herein, to exercise any election or
option provided herein or to require at any time the performance of any of the
provisions herein will not be construed as a waiver of such provisions. The
Buyer shall not assign this agreement or the NSLA without the prior written
consent of Natus.
13. Notification of Discount: Buyer’s price paid to Natus for goods or
services hereunder, or Natus’ provision of goods or services to Buyer,
particularly pursuant to any promotional Program or other discount, may
constitute a “discount or other reduction in price” for purposes of the federal
anti-kickback statute, 42 USC §1320a-7b(b). To the extent required by the
statute or by the discount safe harbor regulations at 42 CFR §1001.952(g)-(h), a
Buyer hospital will be responsible for fully and accurately reporting in
applicable cost reports and providing information upon request to Medicare,
Medicaid and other federal health care programs on all discounts or other price
reductions provided under this agreement. Consistent with the discount safe
harbors, Natus will inform a Buyer hospital of the price reduction of any items
purchased or any free items it provides to a hospital as part of any similar
program and also will inform a hospital of the price discounts related to the
purchase of Natus products or services. |
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