Customer Terms and Conditions of Sale
TERMS AND CONDITIONS OF SALE
1. General. Seller shall mean Biomet, Inc., an Indiana corporation, and/or any division, or subsidiary of Biomet identified on the front of the invoice (i.e., Biomet Biologics, Biomet Orthopedics, Biomet Sports Medicine, or Biomet Trauma). Buyer shall mean the person, firm or corporation executing an order for goods supplied by Seller (hereinafter "Products"). Seller shall be bound by all terms and conditions of this invoice upon the occurrence of any of the following: (a) an order or acceptance is received from Buyer in response to Seller’s quotation, (b) written acceptance of Buyer’s order is delivered to Buyer by Seller, or (c) Seller shall not have tendered refusal of such order to Buyer within thirty (30) days after receipt by Seller of such order. These terms of sale are subject to any related agreement between the Seller and the Buyer. Absent any such agreement, this instrument constitutes an offer by the Seller to sell the products covered by this invoice at the price and subject to all terms stated in this invoice. The Buyer may not modify any terms of this offer, and the Seller hereby objects in advance to any additional or different terms proposed by or on behalf of the Buyer in any instrument requesting or confirming this invoice. Acceptance by the Buyer of the products covered by the invoice will constitute an express waiver by the Buyer of any additional or different term that it had previously proposed. Except as specifically stated herein there are no audit rights under these terms of sale.
2. Adjustments. If the Buyer believes that this invoice contains any errors, it must notify the Seller’s customer service department no later than thirty (30) days after the date of the invoice if it wishes to have those errors rectified. If the Buyer wishes to make a claim for loss or damage to any products covered by this invoice as a result of shipment, it must include a copy of the delivery receipt.
3. Payment Terms. Unless otherwise indicated, this invoice shall be paid in full by Buyer net thirty (30) days. Any amount not paid on time may be subject to a late fee of 1.5% per month prorated (18% per annum), or the maximum interest rate allowable by law whichever is the highest. Additionally, Buyer may be subject to a fee of Fifty Dollars ($50.00) USD for any checks returned unpaid to Seller for any reason. In the event an attorney is employed or expense is incurred to compel payment of the invoice or to declare any action or proceeding is commenced, Buyer agrees to pay all costs and expenses associated with collection of unpaid sums, including but not limited to attorneys’ fees and costs. Seller, in its sole discretion, reserves the right to change terms of payment and/or discontinue further shipments, without prejudice to any other lawful remedy, until past due payments are made and satisfactory assurances of Buyer’s credit standing is received by Seller. Should Buyer elect to cancel its order, in whole or in part, Buyer shall be liable to Seller for reasonable cancellation charges that shall include but not be limited to all costs and expenses incurred by Seller in connection with procuring and filling Buyer’s purchase order.
4. Security Interests. The Buyer hereby grants the Seller a security interest in all products covered by this invoice as security for payment of all amounts due under this invoice. The Buyer shall assist the Seller in perfecting that security interest by signing at the Seller’s request appropriate documents (including without limitation Form UCC-1 financing statements) and cooperating with the Seller (at the Seller’s expense) in taking any further actions reasonably necessary to perfect that security interest. The Buyer’s nonpayment of any amounts due under this invoice, will entitle the Seller to all remedies of a secured creditor under the Uniform Commercial Code.
5. Inspection and Acceptance. Upon receipt of the Products, Buyer agrees to inspect and/or test the Products. The Products shall be deemed accepted by Buyer unless Buyer provides Seller a timely written notice specifically noting any defects or discrepancies in the quality or quantity of the Products received. All notices regarding nonconforming Products, shortages, rejection or revocation of acceptance must be made in writing and received by Seller no later than thirty (30) days from the date of Seller's invoice, which Buyer agrees is a reasonable time frame within which to diligently inspect and provide notice to Seller. Buyer waives any right to reject the shipment or revoke acceptance thereafter.
6. Returns. Products returned by Buyer for credit, replacement and/or repair shall be in accordance with the return policy of Seller, a copy of which may be obtained upon written request to Seller.
7. Option to Accelerate. The Seller may be written notice to the Buyer demand that the Buyer immediately pay all amounts due under this invoice if the Seller believes in good faith that the prospect of the Buyer paying those amounts has been impaired. By accepting the products covered by this invoice, the Buyer is representing that it is not then insolvent within the meaning of Title 11, United States Code, or any similar federal or state law.
8. Taxes. Unless otherwise indicated, prices do not include, and Buyer is responsible for and agrees to pay (unless Buyer shall provide Seller at the time an order is submitted with an exemption certificate or other documents acceptable to taxing or custom authorities), all sales, use, value added, excise and all other federal, state or local or foreign taxes, import or customs fees and duties associated with an order, however designated, except for Seller’s franchise taxes and taxes on Seller’s net income. If applicable, a separate charge for taxes will be shown on Seller's invoice. If the Seller is required to prepay any such tax, duty or other fee, the Buyer will reimburse the Seller the amount of that tax, duty, or other fee.
9. Cost Reporting. The Buyer acknowledges that it is required by law to disclose, an any cost reports or claims for reimbursement submitted to Medicare, Medicaid, or certain other health care programs, the cost (including, but not limited to, any discounts, rebates or other price concessions) of any product covered by this invoice and on request, provide to the U.S. Department of Health and Human Services and any state agencies any invoices, coupons, statements, and other documentation reflecting such costs. The Buyer may receive subsequent documentation under some programs reflecting adjustments or allocations to the price available hereunder. In preparing any cost reports, the Buyer may be required to evaluate as a discount the value of any product listed as $0.00 on any invoice. The Buyer should not include as a discount for cost-reporting purposes the value of any item that is designated as a sample or that the Buyer knows constitutes a sample, and it should not seek reimbursement for any such items. The Seller recommends that the Buyer retain a copy of this invoice and any other documentation provided by the Seller regarding any price concessions under this invoice. The Buyer may request additional information from the Seller to meet the Buyer’s reporting or disclosure obligations, by writing to Biomet.
10. Compliance With Law; Not For Resale Or Export. Buyer agrees to comply with all applicable laws and regulations of the various states and of the United States in the use of the products. The products covered by this invoice are intended for the Buyer’s own use in the United States only and are not for resale unless the Buyer is the Seller’s authorized distributor.
11. Product Shortages. The Seller is not liable for delays in delivery due to product shortages, acts of nature, war, terrorism, regulatory or carrier issues, or any circumstance beyond its reasonable control.
12. Single-Use Products. The Buyer shall ensure that units of any patented Single-Use Product that it purchases are used once and only once in delivering patient care and the Seller conveys no right in such patented Single-Use Product other than the right to use those units once and only once. A “Single-Use Product” means any product that is labeled “For Single Use” or “Single Use Only” or “Do Not Reuse” or otherwise labeled to indicate that the product is to be used once and only once in delivering patient care. The Seller does not grant the Buyer or any other person or entity any license to reprocess, remanufacture, or reconstruct any patented Single-Use Product. In addition to other available remedies, the sale or use of any reprocessed, remanufactured or reconstructed patented Single-Use Product will be subject to available remedies for patent infringement.
13. Shipping and Payment Terms. FOB Origin, with freight and insurance prepaid by the Seller to the final shipping point. Payment in full is due thirty (30) days from date of invoice. Buyer should identify the reason for any deductions, Seller will deny and not accept any unidentified deductions.
14. Confidentiality. The pricing and terms set forth herein are confidential and shall not be disclosed to any third party without the express written consent of Seller.
15. Warranty. Unless otherwise specified in Seller written materials pertaining to a particular Product, Seller warrants to Buyer that Products purchased under this Agreement conform to Seller's published specifications (“Specifications”) and are free from defects in workmanship and material at the time of shipment. If, upon inspection within a reasonable time after delivery and before implantation or use, Buyer discovers a failure of a Product to conform to Specifications or a defect in material and workmanship, it must promptly notify Seller in writing. Within a reasonable time after such notification, Seller will correct any failure of the Product to conform to the warranty by providing, at its option, repair of the Product, a replacement unit, or a refund of the purchase price, if applicable. The aforementioned remedies are Buyer’s exclusive remedies for breach of warranty under this Agreement.
The foregoing warranties, unless otherwise agreed by the Parties in a written addendum to this Agreement or expressly provided in the Specifications, shall extend for a period of one year commencing on the date of shipment of the Product to Buyer.
This warranty does not extend to or cover (a) any product, components, or parts not manufactured or sold by Seller, (b) damage caused by use of any Product for purposes other than those for which it was designed, (c) damage caused by unauthorized attachments or modification, (d) any other abuse or misuse by Buyer, its employees, representatives, contractors and agents, or (e) any Seller Product where the Buyer is not the first purchaser of the Product.
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THIS AGREEMENT OR THE PRODUCTS OR MATERIALS TO BE PROVIDED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL SUCH OTHER WARRANTIES AND REPRESENTATIONS ARE HEREBY DISCLAIMED.
16. Limitation of Liability. TO THE EXTENT ALLOWED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL THE LIABILITY OF SELLER TO BUYER FOR A GIVEN YEAR DURING THE TERM, ON ALL CLAIMS OF ANY KIND, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, ARISING OUT OF THE PERFORMANCE, NON-PERFORMANCE OR BREACH OF THIS AGREEMENT, EXCEED THE TOTAL PRICE OF PRODUCTS ORDERED BY BUYER FOR SUCH YEAR AT THE TIME OF A CLAIM. FURTHERMORE, TO THE EXTENT ALLOWED BY APPLICABLE LAW, IN NO CASE SHALL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES.
17. Force Majeure. Neither Party to this Agreement will be liable for any delay or failure of performance that is the result of any happening or event that could not reasonably have been avoided or that is otherwise beyond its control, provided that the Party hindered or delayed immediately notifies the other Party describing the circumstances causing delay. Such happenings or events will include, but not be limited to, terrorism, acts of war, riots, civil disorder, rebellions, fire, flood, earthquake, explosion, action of the elements, acts of God, inability to obtain or shortage of material, equipment or transportation, governmental orders, restrictions, priorities or rationing, accidents and strikes, lockouts or other labor trouble or shortage.
18. Dispute Resolution. This Agreement and the transactions contemplated hereby shall be governed by and interpreted in accordance with the laws of the State of Indiana, without regard to the choice of laws principles thereof. The Parties agree that any legal action relating to this Agreement shall be commenced and maintained exclusively before any appropriate state court of record in Kosciusko County, Indiana, or, if necessary, the United States District Court for the Northern District of Indiana, and the Parties hereby submit to the jurisdiction of such courts and waive any right to challenge or otherwise raise questions of personal jurisdiction or venue in any action commenced or maintained in such courts.