TERMS AND
CONDITIONS
Pajunk Medical Systems L.P.
General Terms and Conditions for the Sale of Products
1. Applicability
(a)
These terms and conditions of sale (these “Terms” or “Agreement”) are the only terms which govern the sale of the Products (“Products”) and services (“Services”) by Pajunk Medical Systems L.P. (“Pajunk”) to the buyer of Pajunk Products or Services (“Buyer”). The receipt of Pajunk’s order confirmation or performance of Services or acceptance of shipment of Products containing a confirming invoice referencing the applicability of these Terms and subsequent use or inclusion into Buyer’s inventory of such Products shall be deemed conclusive evidence of Buyer’s acceptance of these Terms for all initial and any subsequent purchases of Products or Services.
(b)
These Terms comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the purchase of Products and Services. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms, which are hereby expressly rejected. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
(c)
Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Products or Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
2. Delivery of Products
(a)
The Products will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of finished Products. Pajunk shall not be liable for any delays, loss, or damage in transit.
(b)
Unless otherwise agreed in writing by the parties, Pajunk shall deliver the Products to FCA (Incoterms ® 2020) Pajunk’s warehouse in 4575 Marconi Dr., Alpharetta, Georgia 30005 (the “Delivery Point”) subject to Buyer’s arrangement for transportation. Any arrangement for shipment from the Delivery Point to any place designated by Buyer made by Pajunk for Buyer’s convenience shall be expressly and entirely at Buyer’s cost and responsibility, including arrangement of shipment by Pajunk for Buyer’s convenience or benefit.
(c)
Pajunk may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
(d)
Pajunk shall use reasonable efforts to meet any performance dates to render the Services specified in the Sales Confirmation, and any such dates shall be estimates only.
3. All sales are final
No Product may be returned to Pajunk without prior written authorization of Pajunk. Any Products authorized for return must be submitted in original, unopened, full packaging without markings or other blemishes in sellable condition within 90 days from the date of purchase. The lot number of the returned material must match the lot number on the box. Returned Products must have at least two (2) years shelf life remaining. Pajunk may charge a restocking fee of 15% for returned Products. Any returned Products shall be credited to the Buyer for the future purchase of Products.
4. Non-Delivery
(a)
Pajunk shall not be liable for any non-delivery of Products unless Buyer gives written notice to Pajunk of the non-delivery within ten (10) days of the date when the Products would in the ordinary course of events have been received.
(b)
Any liability of Pajunk for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered.
(c)
Buyer acknowledges and agrees that the remedies set forth in this 2are Buyer’s exclusive remedies for any non-delivery of Products.
5. Quantity
Any order below a purchase volume of $1,000 shall be subject to handling fees at the prevailing rate of Pajunk, as published from time to time on Pajunk's price lists.
6. Title and Risk of Loss
Title and risk of loss passes to Buyer upon delivery of the Products at the Delivery Point. As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to Pajunk a lien on and security interest in and to all of the right, title, and interest of Buyer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the applicable law.
7. Buyer’s Acts or Omissions
If Pajunk’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Pajunk shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
8. Inspection and Rejection of Nonconforming Products
(a)
Buyer shall inspect the Products within five (5) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Products unless it notifies Pajunk in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as required by Pajunk. “Nonconforming Products” means only the following: (i) Products shipped is different than identified in Buyer’s purchase order; or (ii) Products’ label or packaging incorrectly identifies its contents.
(b)
If Buyer timely notifies Pajunk of any Nonconforming Products, Pajunk shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the Price for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Products to Pajunk’s facility at the Port of Delivery. If Pajunk exercises its option to replace Nonconforming Products, Pajunk shall, after receiving Buyer’s shipment of Nonconforming Products, deliver to Buyer, at Buyer’s expense and risk of loss, the replaced Products to the Delivery Point.
(c)
Buyer acknowledges and agrees that the remedies set forth in herein are Buyer’s exclusive remedies for the delivery of Nonconforming Products. Except as provided under Section (b), all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products purchased under this Agreement to Pajunk.
9. Price
(a)
Buyer shall purchase the Products and Services from Pajunk at the price (the “Price”) set forth in Pajunk’s published price list in force as of the date that Pajunk accepts Buyer’s purchase order unless expressly agreed upon otherwise in writing.
(b)
All taxes assessed to any order of Product are the responsibility of Buyer whether or not invoiced, including, but not limited to, local and regional sales taxes and personal property tax, or if applicable, Buyer is to provide Pajunk with a valid tax exemption certificate. In the event that Buyer either fails to pay the tax or other charges as agreed above or fails to provide a valid exemption certificate, Buyer agrees to indemnify, defend and hold Pajunk and its affiliates harmless from any liability, cost and expense Pajunk incurs by reason of Buyer's failure, including without limitation, reasonable attorneys’ fees and expenses.
10. Payment Terms
(a)
Buyer shall pay all invoiced amounts due to Pajunk within thirty (30) days from the date of Pajunk’s invoice. Buyer shall make all payments hereunder by wire transfer in US dollars.
(b)
Buyer shall pay interest on all late payments at the lesser of the rate of 1.5 % per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Pajunk for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Pajunk does not waive by the exercise of any rights hereunder), Pajunk shall be entitled to suspend the delivery of any Products or performance of any Services and stop Products in transit if Buyer fails to pay any amounts when due hereunder and such failure continues for ten (10) days following written notice thereof.
(c)
Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Pajunk, whether relating to Pajunk’s breach, bankruptcy or otherwise.
11. Limited Warranty
(a)
EXCEPT FOR THE WARRANTIES SET FORTH IN IN THE PAJUNK LIMITED PRODUCT WARRANTY ATTACHED TO AND INCORPORATED INTO THESE TERMS, PAJUNK MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS OR SERVICES.
(b)
Products manufactured by a third party other than a Pajunk corporate affiliate (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Products. Third Party Products are not covered by the Pajunk Limited Product Warranty. For the avoidance of doubt, PAJUNK MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
(c)
Pajunk shall not be liable for a breach of the warranties set forth herein unless: (i) Buyer gives written notice of the defective Products or Services, as the case may be, reasonably described, to Pajunk within fifteen (15) days of the time when Buyer discovers or ought to have discovered the defect; (ii) if applicable, Pajunk is given a reasonable opportunity after receiving the notice of breach of Pajunk’s Limited Product Warranty to examine such Products and Buyer (if requested to do so by Pajunk) returns such Products to Pajunk’s place of business for the examination to take place there; and (iii) Pajunk reasonably verifies Buyer’s claim that the Products or Services are defective.
(d)
Pajunk shall not be liable for a breach of the warranty set forth herein if: (i) Buyer makes any further use of such Products after giving such notice; (ii) the defect arises because Buyer failed to follow Pajunk’s oral or instructions as to the storage, installation, commissioning, use or maintenance of the Products; or (iii) Buyer alters or repairs such Products without the prior written consent of Pajunk.
(e)
Pajunk sells or designates certain Products as single-use products, as described in product instructions, package inserts, product labeling, product packaging for such Products. Pajunk shall not be liable for any injuries to persons or property, or for any other damages, costs, or expenses relating to the re-use of any such single-use products
(f)
Subject to the Pajunk Limited Product Warranty, with respect to any such Products during any applicable warranty period, Pajunk shall, in its sole discretion, either: (i) repair or replace such Products (or the defective part) or (ii) credit or refund the price of such Products at the pro rata contract rate provided that, if Pajunk so requests, Buyer shall return such Products to Pajunk.
(g)
THE REMEDIES SET FORTH HEREIN SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND PAJUNK’S ENTIRE LIABILITY FOR ANY BREACH OF THE PAJUNK LIMITED PRODUCT WARRANTY.
12. Limitation of Liability
(a)
IN NO EVENT SHALL PAJUNK BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT PAJUNK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b)
IN NO EVENT SHALL PAJUNK’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO PAJUNK FOR THE PRODUCTS AND SERVICES SOLD HEREUNDER.
13. Compliance with Laws and Regulations
(a)
Buyer shall comply with all applicable laws, regulations, and ordinances and/or agencies with jurisdiction after the Products being sold under the Terms. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement, including, but not limited to, those set forth in this Section below.
(b)
Buyer shall comply with the Federal Healthcare Participation Certification and represents and warrants that neither Buyer nor any of its directors, officers, employees, or agents providing services under this Agreement: (i) are “sanctioned persons” under any federal or state program or law; (ii) have been listed in the current Cumulative Sanction List of the Office of Inspector General for the United States Department of Health and Human Services for currently sanctioned or excluded individuals or entities; (iii) have not been listed on the General Services Administration’s List of Excluded individuals or Entities; (iv) have not been listed on the General Services Administration’s List of Parties Excluded from Federal Programs; and (v) have not been convicted of a criminal offense related to health care. Buyer shall immediately notify Pajunk in the event that Buyer is no longer able to make such representations.
(c)
In the performance of the performance required under these Terms, Buyer agrees to abide by all of the applicable provisions of the Health Insurance Portability and Accountability Act (“HIPAA”), 45 C.F.R. Parts 160, 162, and 164. Additionally, Buyer agrees to sign a HIPAA-compliant business associate agreement (“BAA”) in the event the parties or their representatives determine a BAA is required based upon the products and services provided hereunder.
(d)
If and to the extent any discount, credit, rebate or other purchase incentive is applied by Pajunk with respect to the Products purchased under the Contract, such discount, credit, rebate or other purchase incentive shall constitute a “discount or other reduction in price” under the Federal Anti-Kickback Statute (42 U.S.C. Section 1320a 7b(b)(3)(A)), on the Products purchased by Buyer under the terms of the Contract. Buyer shall take all actions necessary to comply with any and all requirements imposed on buyers under the Anti-Kickback Statute discount “safe harbor” regulations (42 C.F.R. Section 1001.952(h)), including, without limitation, if Buyer is an entity which reports its costs on a cost report required by the U.S. Department of Health and Human Services or a state health care program, the obligation to fully and accurately report the discount, credit, rebate or other purchase incentive in Buyer’s applicable cost report or other reporting mechanisms, and to provide to the U.S. Department of Health and Human Services or a state agency, upon request, the information provided by Pajunk as specified in 42 C.F.R. Section 1001.952(h)(2)(ii), including, without limitation, copies of Pajunk’s invoice or statement in which such purchase incentive is set forth.
(e)
Buyer shall comply with all export and import laws of all countries involved in the sale of the Products under this Agreement or any resale of the Products by Buyer. Buyer assumes all responsibility for shipments of Products requiring any government import clearance.
14. Termination
In addition to any remedies that may be provided under these Terms, Pajunk may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement and such failure continues for ten (10) days after Buyer’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
15. Waiver
No waiver by Pajunk of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Pajunk. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
16. Confidential Information
All non-public, confidential or proprietary information of Pajunk, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Pajunk to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Pajunk in writing. Upon Pajunk’s request, Buyer shall promptly return all documents and other materials received from Pajunk. Pajunk shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (i) in the public domain; (ii) known to Buyer at the time of disclosure; or (iii) rightfully obtained by Buyer on a non-confidential basis from a third party.
17. Force Majeure
No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Pajunk hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): acts of God; flood, fire, earthquake, other potential disaster(s) or catastrophe(s), such as epidemics, explosion, war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; government order, law, or actions; embargoes or blockades in effect on or after the date of this Agreement; or national or regional emergency; or strikes, labor stoppages or slowdowns, or other industrial disturbances; or shortage of adequate power or transportation facilities, raw materials or services required for the production or storage of the Products (specifically including sterilization); or other events beyond the control of the Impacted Party. The Impacted Party shall give notice within ten (10) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) consecutive days following written notice given by it under this Section 18, either party may thereafter terminate any Purchase Order within ten (10) days’ written notice.
18. Assignment
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Pajunk. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
19. Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
20. No Third-Party Beneficiaries
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
21. Governing Law
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule (whether of the State of Georgia or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Georgia.
22. Submission to Jurisdiction
Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Georgia in each case located in the City of Atlanta, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
23. Notices
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (i) upon receipt of the receiving party, and (ii) if the party giving the Notice has complied with the requirements of this Section.
24. Severability
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
25. Survival
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction and Survival.
26. Amendment and Modification
These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.
Pajunk Limited Product Warranty
PAJUNK REPRESENTS, WARRANTS AND COVENANTS THAT, AT THE TIME OF DELIVERY TO A COMMON CARRIER, IN ALL MATERIAL RESPECTS, NO PRODUCT DELIVERED TO BUYER IS ADULTERATED OR MISBRANDED WITHIN THE MEANING OF THE FEDERAL FOOD, DRUG AND COSMETIC ACT (FDCAct), AS AMENDED, OR WITHIN THE MEANING OF ANY APPLICABLE LOCAL LAW IN WHICH THE DEFINITIONS OF ADULTERATION AND MISBRANDING ARE SUBSTANTIALLY SIMILAR TO THOSE CONTAINED IN THE FDCAct. PAJUNK HEREBY REPRESENTS, WARRANTS AND COVENANTS THAT THE DESCRIPTIONS AND DIRECTIONS FOR USE OF THE PRODUCT LABELING MEET THE REQUIREMENTS OF ALL FEDERAL LAWS AND REGULATIONS, INCLUDING THE FDCAct. SINCE PAJUNK HAS NO CONTROL OVER THE USE OR ADMINISTRATION OF THE PRODUCTS, PAJUNK DOES NOT GIVE AND HEREBY DISCLAIMS ANY WARRANTY CONCERNING THE EFFECT OF A PRODUCT OR ITS USE ON ANY PATIENT. IT IS THE RESPONSIBILITY OF THOSE PERSONS WHO PRACTICE THE MEDICAL SCIENCES TO ACT WITHIN THEIR COMPETENCE TO JUDGE FROM THE PATIENT’S DIAGNOSIS, IN LIGHT OF THE CIRCUMSTANCES OF EACH CASE, WHETHER ANY PRODUCTS SHOULD BE ADMINISTERED OR USED FOR PATIENT CARE, AND IF ADMINISTERED OR USED, HOW AND IN WHAT DOSAGE, KIND OF SURGERY PROCEDURE OR MODE OF APPLICATION, THEY SHOULD BE ADMINISTERED OR EMPLOYED, TAKING INTO CONSIDERATION THE RISKS AND BENEFITS TO ANY PATIENT. PAJUNK EXTENDS NO ADDITIONAL REPRESENTATION OR WARRANTY WITH RESPECT TO THE PRODUCT OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR ANY WARRANTY THAT THE PRODUCT IS FREE FROM A RIGHTFUL CLAIM OF ANY THIRD PARTY, BY WAY OF INFRINGEMENT OF ACTUAL OR ALLEGED INTELLECTUAL PROPERTY RIGHTS OR THE LIKE, AND ANY REPRESENTATION OR WARRANTY RELATING TO ANY SINGLE USE PRODUCT IN CONNECTION WITH ITS RE-USE. IN NO EVENT SHALL PAJUNK BE LIABLE HEREUNDER FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, MULTIPLE OR PUNITIVE DAMAGES OR ANY LOST BUSINESS, REVENUES OR PROFITS FROM ANY BREACH OF THIS AGREEMENT.
