Customer Terms and Conditions
All sales and shipment of products (collectively, the “Products”) ordered by a customer (“Customer”) from Golden Valley Health, LLC (or its affiliates or subsidiaries, collectively “Supplier”), whether by a Sales Order, Customer purchase order, or other order method shall be covered by and subject to these Customer Standard Terms and Conditions (collectively, the “Terms andConditions”). Supplier is not bound by any printed matter on Customer’s purchase order or other documentation that imposes terms or conditions that differ, add to or modify the terms set forth in these Terms and Conditions.
1. Scope. All sales and shipment of products (collectively, the “Products”) ordered by Customer from Supplier shall be covered by and subject to this Addendum. This Addendum supersedes (a) the Agreement, (b) all terms in Customer’s purchase orders and all other confirmation documents, and (c) all other oral or written communications between the parties regarding the matters covered in this Addendum. In the event of a conflict between the terms of this Addendum and the Agreement, the terms of this Addendum shall control and superseded any conflicting terms in the Agreement. No party is entering into the Agreement or the Addendum in reliance on any oral or written promises, representations or understandings other than those in the Agreement or Addendum.
2. Forecasts.
(a) On or before the first day of each month (or more frequently as requested), Customer will provide Supplier with a rolling 90 day forecast of Customer’s anticipated orders for Products (a “Forecast”).
(b) Forecasts shall become binding purchase commitments on Company and Supplier 60 days prior to purchase order issuance. During such 60-day binding period, no changes may be made to the quantity, delivery date, or other Forecast terms without the prior mutual written agreement of Company and Supplier.
3. Pricing.
(a) Pricing. Supplier will sell the Products to Customer at the prices agreed in writing between the parties. Supplier’s prices do not include sales, use, excise or similar taxes. The amount of any present or future sales, use, excise or other similar tax that is attributable to Customer will be paid by Customer.
(b) Payment. Unless Supplier otherwise agrees in writing, Customer agrees to pay for all Products in full within 10 days of delivery to the delivery point via wire transfer.
4. Shipping. Supplier will package the Products for international shipment in accordance with standard commercial practices. Supplier will use its best efforts to deliver the Products by the date set forth in an accepted purchase order, but shall not be penalized in the event of delayed shipments. Products shipped pursuant to a valid Purchase Order, unless otherwise set forth in the Purchase Order, are delivered DDP to a single port or airport. Buyer will be responsible for title to, and risk of loss from, the Products when delivered to the delivery point. Buyer shall be responsible for all domestic freight and transfer from the delivery point. Buyer must arrange to have the Products picked up from the delivery point within 24 hours of delivery.
5. Inspection. Buyer shall have 24 hours to inspect and accept the Products after such Products are delivered to the delivery point. If the Products are not properly rejected by Buyer within such 24 hour period, they will all be deemed accepted. Within such 24 hour period, Buyer may reject any shipment of Products that do not meet the order quantity or model number set forth in Buyer’s purchase order. If a shipment is rejected, Buyer’s sole remedy is to exchange such Products for conforming Products.
6. Returns. Except for the inspection right set forth above, Customer shall have no right to return any Products. All sales are final. In the event any of the Products do not comply with Supplier provided specifications, Customer’s sole remedy shall to be to return the non-conforming Products for exchange of new Products.
7. Disclaimer of Warranty. THE PRODUCTS ARE PROVIDED “AS IS" AND SUPPLIER MAKES NO WARRANTIES, GUARANTEES OR REPRESENTATIONS, EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS, AND ALL OTHER SUCH WARRANTIES ARE HEREBY EXPRESSLY WAIVED AND EXCLUDED INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. SUPPLIER MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE QUALITY, NATURE, CONDITION, OR COMPOSITION OF THE PRODUCTS. CUSTOMER EXPRESSLY ASSUMES ALL RISKS, DANGERS, AND HAZARDS THAT MAY ARISE FROM THE USE OF THE PRODUCTS, INCLUDING EXPOSURE TO CORONAVIRUS OR OTHER PATHOGENS, WHICH COULD RESULT IN PERSONAL INJURY, LOSS OF LIFE, OR PROPERTY DAMAGE. IN NO EVENT SHALL SUPPLIER BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF THE AGREEMENT, THE ADDENDUM, THE PRODUCTS, OR ARISING OUT OF ANY THIRD-PARTY CLAIM, EVEN IF SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SUPPLIER’S LIABILITY EXCEED THE TOTAL AMOUNTS PAID TO BY CUSTOMER TO SUPPLIER DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION HAS ACCRUED.
8. Regulatory Matters.
(a) Customer acknowledges and agrees that these Products being provided for use during the COVID-19 public health emergency in accordance with the public health and medical response directives issued by WHO, the U.S. federal government, state and local governments, as well as guidances issued by the U.S. Food & Drug Administration (FDA) and the U.S. Centers for Disease Control and Prevention (CDC).
(b) Customer acknowledges that Products may not have not been approved or cleared by FDA as medical devices. Products should be used in accordance with CDC and FDA recommendations, and Products should only be used where FDA-cleared or approved equivalents of the Products are not available.
(c) Customer acknowledges and agrees that Supplier has not and will not be providing any medical advice regarding the use of the Products.
(d) Customer acknowledges and agrees to convey to the end users of the Products all instructions, warnings, user limitations, disclaimers, and other information provided on, with, or alongside the Products.
(e) Customer acknowledges and agrees that Supplier is not assuming responsibility for any aspect of Customer’s use, attempted use, or non-use of the Products. Customer assumes sole and exclusive responsibility for all aspects of Customer’s use, attempted use, or non-use of the Products.
9. Release. Customer releases Supplier from all actions, causes of actions, damages, claims or demands for any and all personal injuries, loss of life, or damage to any property or business disruption which Customer has or may incur by use of the Products. Customer is responsible for any injuries to persons or property which may be incurred in connection with the Products.
10. Confidentiality. The Agreement, Addendum, and any information marked as confidential or, regardless of form (written/electronic/oral) or marking, is of the nature that a reasonable person would understand its owner would not want it disclosed to the public will be considered to be “Confidential Information.” Further, without limiting the generality of the foregoing, Confidential Information will also include (a) any document or data transaction between the parties; (b) matters of a technical nature such as trade secret processes or devices, know-how, data, formulas, inventions (whether or not patentable or copyrighted), specifications and characteristics of products or services planned or being developed, and research subjects, methods and results; (c) matters of a business nature such as information about costs, profits, pricing, policies, markets, sales, suppliers, customers (e.g., names and addresses), product plans, and marketing concepts, plans or strategies; (d) matters relating to project initiatives and designs; and (e) other information of a similar nature not generally disclosed to the public. Each party agrees not to disclose Confidential Information except to affiliates, employees or a third-party subject to a similar confidentiality agreement, which have a need to know such information in order to perform their responsibilities. Each party agrees to take at least the same precautions to protect Confidential Information as such party would utilize to ensure the protection, confidentiality and security of its own Confidential Information. Each party, at its own expense, will properly use security procedures that are reasonably sufficient to ensure that all transmissions of documents are authorized and to protect its business records and data from improper access.
11. Survival. The expiration or termination of the Agreement or this Addendum will not terminate vested rights of either party from any liabilities or obligations incurred under the Agreement or Addendum prior to or which by their nature are intended to survive expiration or termination, including but not limited to Sections 6 - 11.
12. Waiver. The failure of a party to exercise or enforce any right under these Terms and Conditions shall not be deemed to be a waiver of that right nor operate to bar the exercise or enforcement of it at any time or times thereafter.
13. Governing Law; Dispute Resolution. These Terms and Conditions and any disputes arising hereunder shall be governed by and interpreted in accordance with the laws of the State of Minnesota, excluding any conflict of laws, rules or principles therein contained under which any other law would become applicable. The parties stipulate to the exclusive jurisdiction and venue of the courts located in Minnesota to resolve any dispute relating to these Terms and Conditions, or arising hereunder, or by virtue of the relationship of the parties. The prevailing party in any proceeding brought to enforce the provisions of the Terms and Conditions or to seek a remedy for any breach (including an arbitration action or administrative proceeding) shall be entitled to receive reimbursement of its reasonable attorneys’ fees and costs, litigation expenses and other disbursements incurred in connection with such proceeding, including fees and expenses incurred in any appellate proceeding.