4. RETURNS. All Product returns, whether for defect or otherwise, require the prior written authorization of AERIN, which must be obtained through AERIN’s customer service team. If the return is authorized, AERIN shall provide Customer a return authorization, and Customer must return the Product to AERIN within thirty (30) days of receipt of such return authorization. Any Product returned after thirty (30) days shall be addressed by AERIN, which shall at its discretion have the ability to charge the customer a price up to the then list price for such Products. Credit shall be issued only after Product is received by AERIN and then examined and determined to be returnable by AERIN’s return goods department. Customer shall not make any changes to the return authorization without receiving prior approval through AERIN’s customer service team.
Returns may only be made subject to the following limitations:
- Product is still listed on AERIN’s current product list; and
- AERIN reserves the right to destroy Product shipped to AERIN that it deems unfit for sale.
AERIN shall not accept returns for Product:
- Not in standard Aerin packaging;
- Purchased through anyone other than AERIN;
- With unauthorized labels or that has been defaced;
- That is a temperature controlled product; or
- That is obsolete, discontinued, special price, damaged or in broken lots or cases.
5. CAPITAL PLACEMENT. AERIN agrees to make available to the Customer an AERIN RF Console System, Part Number CAT305–02 (the “Equipment”), for Customer’s sole use in performing Aerin Vivaer® Nasal Airway Remodeling procedures (the “Purpose”), upon receipt of an executed Equipment Use Agreement (the basic terms of which are outlined below). This bailment is one at–will. Furthermore, the Equipment is made available solely in connection with Customer’s use of AERIN Products for the Purpose. No financial consideration for the Equipment is due. Title to the Equipment shall be, and at all times will remain, with AERIN, but risk of loss shall pass to Customer upon delivery. Customer shall maintain adequate liability insurance with respect to its use of the Equipment. Customer shall also insure the Equipment against all common risks (e.g., fire, flood, theft, etc.) at its expense and for the lesser of either $15,000 or full replacement value of the Equipment. At the request of AERIN, Customer shall provide AERIN with an insurance certificate evidencing such insurance coverage. The delivery of the Equipment to the Customer facility and return of the Equipment to AERIN, shall be completed by AERIN at its own expense. Customer shall be solely responsible for obtaining and maintaining any and all licenses and other consents and approvals that may be required for the use and/or operation of the Equipment at its facility.
For the term of this Agreement, Customer agrees that:
(a) It will use the Equipment in the proper manner and with appropriate care, pursuant to all instructions, training and manuals which will be provided to Customer by AERIN.
(b) It will immediately report to AERIN or its designee any malfunction or defect, whatever the nature or cause.
(c) It will ensure that any necessary repair, modification or service will be carried out by AERIN. AERIN agrees to use its commercially reasonable efforts to repair or replace, at AERIN’s sole discretion, the Equipment as needed in a prompt and timely fashion, following a reported malfunction.
(d) It will not move the Equipment from its facility without AERIN’s prior written consent.
(e) It will return the Equipment to AERIN, in the same condition as when delivered to Customer (ordinary wear and tear excepted), upon request by termination of the Equipment Use Agreement.
(f) It will use the Equipment only for the Purpose and no other application.
All Equipment Use Agreements shall commence as of the effective date stipulated on the agreement and shall continue until terminated by one or both parties. Either party may terminate the Equipment Use Agreement for any reason or no reason. In the event of termination by AERIN, AERIN agrees to provide thirty (30) days’ prior written notice to Customer. Customer shall be liable for all damages and injuries caused to the Equipment or to persons using or being examined with the Equipment, and shall indemnify, protect and hold harmless AERIN from any claim or action arising therefrom, if and to the extent that such damage or injury is the result of the negligent acts or omissions of Customer, its officers, employees, agents, or third parties for which it is responsible. AERIN shall be liable for all damages and injuries to persons being examined with the Equipment, and shall indemnify, protect and hold harmless Customer from any claim or action arising therefrom, if and to the extent such damage or injury is the result of the negligent acts or omissions of AERIN, its officers, employees, agents, or third parties for which it is responsible. NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, UNFORESEEN OR INCIDENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION. AERIN MAKES NO WARRANTY CONCERNING THE EQUIPMENT, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6. COMPLIANCE. Each party shall conduct its business and affairs in an ethical manner and comply with all applicable laws, regulations, and industry codes. Any breach by Customer or its representatives or agents shall entitle AERIN to terminate this agreement immediately upon AERIN’s written notice to Customer. All transactions between Customer and AERIN in connection with this agreement are made in good faith on the basis of arms–length negotiation, and all prices are consistent with fair market value. The prices reflected on AERIN invoices incorporate applicable discounts to AERIN’s list prices for the named Products. Consistent with AERIN‘s understanding of the requirements that apply to purchases of discounted Products under 42 U.S.C. § 1320a–7b(b)(3)(A) or 42 C.F.R. § 1001.952(h), listing of these invoice prices constitute AERIN’s notice to Customer of the amount and value of all discounts given on these Products. Customer may be responsible for reporting prices, discounts, and rebates to third parties under laws and regulations that apply to Customer’s business, and for providing information to certain third parties in accordance with those laws and regulations. Any invoice prices less than AERIN’s list prices are “discounts” within the meaning of any safe harbors or other applicable protections regarding discounted product pricing (including the statute and regulation cited above), whether or not the invoice includes language indicating that a price is “discounted.”
7. LIMITED PRODUCT WARRANTY – AERIN Products are warranted to conform in all material respects to AERIN’s standard specification for a particular product in effect at the time of product delivery to the buyer (including any tolerance parameters) for one year (the “Warranty Period”). For any Products found to not be in conformance with this warranty during the Warranty Period, this warranty provides and is restricted to, as elected by AERIN, either (i) repair or replacement of such products without charge and within a reasonable period of time or (ii) a refund or credit in the amount of the purchase price of such Products. If AERIN repairs or replaces Product under this warranty and requests Customer to return such Product, Customer must ship such Product to AERIN with freight prepaid by AERIN. Customer shall be invoiced for any replacement Product if Customer does not return the requested replaced Product within thirty (30) days after AERIN’s shipment of the replacement Product. This warranty does not cover and is voided by any of the following: (i) Product packaged or labeled by someone other than AERIN or its authorized agents; (ii) Product not used in compliance with the specifications, instructions or claims for use of the Product; (iii) equipment Product used in conjunction with disposables or accessories not specified for use with such equipment; (iv) equipment Product used in conjunction with reprocessed disposables or accessories; (v) modification of Product; (vi) Product past its expiration date; (vii) normal wear and tear; (viii) damage due to misuse, reprocessing, alteration, unauthorized repair or negligent handling or damage due to lack of care by the owner, user or handler of the Product including but not limited to storage, handling or cleaning; or (ix) any other damage inflicted to Products by the owner, user or handler. This warranty applies only to the original buyer from AERIN (or its authorized distributor) and is not transferable. EXCEPT TO THE EXTENT PROHIBITED OR OTHERWISE REQUIRED BY APPLICABLE LAW, THIS WARRANTY IS THE SOLE WARRANTY OF AERIN, AND ALL OTHER WARRANTIES OF ANY KIND OR DESCRIPTION WHATSOEVER, INCLUDING WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, EXPRESSED OR IMPLIED, ARE EXCLUDED.
8. LIMITATION OF LIABILITY. WITH THE EXCEPTION OF ITS GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT, BREACH OF ANY CONFIDENTIALITY PROVISION OF THIS AGREEMENT, LIABILITY OWED TO THIRD PARTIES OR FOR DEATH OR PERSONAL INJURY, OR AS OTHERWISE PROHIBITED BY LAW: (I) IN NO EVENT SHALL AERIN BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE OR SIMILAR TYPES OF LOSS OR DAMAGE OF ANY KIND, OR FOR ANY LOST OR ANTICIPATED PROFITS OR SAVINGS, COST OF COVER FOR REPLACEMENT OR ALTERNATIVE PRODUCT OR DAMAGE TO REPUTATION OR GOODWILL, ARISING FROM THIS AGREEMENT; (II) CUSTOMER’S SOLE REMEDY FOR AERIN’S BREACH OF ANY PRODUCT WARRANTY SHALL BE THE REPAIR, REPLACEMENT OR REFUND BY AERIN AS PROVIDED IN THE WARRANTY; AND (III) IN NO EVENT SHALL THE TOTAL LIABILITY OF AERIN UNDER ANY THEORY OF LIABILITY EXCEED THE PURCHASE PRICE PAID FOR THE APPLICABLE PRODUCT(S). THE PARTIES EXPRESSLY ACKNOWLEDGE THAT THE PRECEDING LIMITATIONS ON LIABILITY ARE A FAIR COMPROMISE AND WAIVE ANY RIGHT TO LATER CHALLENGE THEM AS UNREASONABLE, UNCONSCIONABLE OR OTHERWISE.
9. GOVERNING LAW; JURISDICTION; JURY WAIVER. This agreement shall be construed and enforced in accordance with the laws of the State of Texas, without regard to or application of conflict of law principles. If any legal action, proceeding or other dispute arises relating to this agreement, the prevailing party shall be entitled to recover its costs and expenses associated with same, including, but not limited to, reasonable fees and costs for attorneys, accountants, collection, and other professionals. The commencement of any civil action or other proceeding or the assertion of any setoff relating to this agreement or any act or omission relating to its performance or subject matter must occur no later than three (3) years of the breach, act, omission, condition, or event in dispute, notwithstanding any longer statute of limitation or repose, or doctrine postponing or tolling a claim’s accrual for non–discovery, to the contrary; or else such proceeding shall be barred. The parties, after consultation with respective counsel, waive trial by jury in any proceeding or counterclaim brought by either party against the other on any matters arising out of or in any way connected to this agreement, the relationship between the parties, or any injury or damage claim.
10. MISCELLANEOUS. AERIN reserves the right to discontinue Products or change specifications or designs from time to time. Neither party is liable for delays or failures in performance (other than payment obligations) due to causes beyond its reasonable control. In the event of such delay, the time for performance shall be extended as reasonably necessary to enable performance. No modified, additional or different terms or conditions proposed by Customer, verbally or in writing, including without limitation any terms set forth in Customer’s RFP or purchase order, shall apply and are expressly rejected by AERIN. Any waiver of any breach of any provision of this agreement shall not be a waiver of any subsequent breach of the same or of any other provision of this agreement. Customer will keep all terms of this Agreement confidential and will not disclose, disseminate, use or otherwise make them available to any third party for any purpose, including use as a basis for competitive solicitation. The terms hereof will not be construed to create between the parties the relationship of principal and agent, joint venturers, partners or any other similar relationship, the existence of which is expressly denied by each party. If a court of competent jurisdiction finds any provision of this agreement is invalid or unenforceable, such finding shall not affect the remainder of these terms and conditions and otherwise shall remain in full force and effect. These Terms and Conditions of sale are subject to change by AERIN.