1. GENERAL. All sales of Products distributed by Bioventus LLC (“Bioventus”) in the United States are subject to the following terms and conditions, including the front page, (collectively, the “Invoice”). In this Invoice, goods and services sold by Bioventus are referred to as “Products” and the purchaser of the Products is referred to as the “Purchaser”. Bioventus and Purchaser are herein collectively referred to as the “Parties”. Bioventus Sales representatives are not permitted to alter the terms of the Invoice, extend credit, or accept payment for the Product.
2. PRICING & PAYMENT. Purchaser shall purchase Product at the price stated on the Invoice due either (a) as stated on the Invoice or, if not stated, (b) thirty (30) days from the Invoice date in United States Dollars. All orders are subject to credit approval by Bioventus. Bioventus may modify, suspend or withdraw the credit amount or payment terms at any time. Unless stated in writing by Bioventus, Bioventus’ prices exclude charges for insurance, taxes, excises, fees, duties or other government charges related to the Products. If Purchaser claims a tax or other exemption or direct payment permit, Purchaser will provide a valid exemption certificate or permit at the time an order is submitted and indemnify, defend and hold Bioventus harmless from any taxes, costs and penalties arising from it. Late payments may bear interest at an annual percentage rate of twelve percent (12%) or the highest rate allowed by law, whichever is lower. If Purchaser disputes all or any portion of an Invoice, it must first deliver written notice to Bioventus of the disputed amount and the basis for the dispute within twenty (20) business days of receiving the Invoice. Failure of Purchaser to timely notify Bioventus of any dispute constitutes a waiver of Purchaser’s claim.
3. DELIVERY; TITLE; RISK OF LOSS. Bioventus shall deliver Products F.O.B., Bioventus point of shipment with title and risk of loss or damage passing to Purchaser at that point. Purchaser is responsible for all transportation, insurance and related expenses. Any shipping amounts and delivery dates are estimated dates only and Bioventus reserves the right to make partial shipments and invoice accordingly. All Products will be shipped to the address indicated in the “ship to” portion of Purchaser’s purchase order. Bioventus reserves the right to refuse to ship the Products to third parties.
4. PRODUCT RETURNS. Prior to the return of any Product to Bioventus, Purchaser must identify the Product or portion thereof and obtain written authorization and shipping instructions from Bioventus. Bioventus’ authorization to return any Product to Bioventus does not relieve Purchaser of its obligation to pay for such Product. Upon receipt, inspection, and acceptance of the Product by Bioventus, Bioventus will issue a credit memo to Purchaser, less applicable re-stocking fees, if any. Return of Products is subject to the following terms based on the Product category:
5. WARRANTIES. The warranty for the Products covered by this Invoice are limited to the express written warranty contained in the Bioventus current Product packaging and labeling. Purchaser must provide written notice of any claims for breach of warranties by either the term stated in the written warranty or twelve (12) months from shipment. Purchaser’s sole and exclusive remedies for breach of the warranties are limited, at Bioventus’ discretion, to repair or replacement of the Product, or its non-conforming parts, within a reasonable time period, or refund of all or part of the purchase price. Bioventus may request the return or destruction of all exchanged Products replaced under this warranty. The warranties apply only to the original end-user purchaser of Products directly from Bioventus or its authorized distributors. Warranties are only transferable during the warranty period. THE WARRANTIES IN THIS ARTICLE 5 ARE BIOVENTUS’ SOLE AND EXCLUSIVE WARRANTIES. BIOVENTUS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, INFRINGEMENT, COURSE OF DEALING, AND USAGE OF TRADE.
6. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING IN THIS INVOICE TO THE CONTRARY, BIOVENTUS IS NOT LIABLE, WHETHER BASED IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR: LOSS OF USE, REVENUE, SAVINGS, PROFIT, INTEREST, GOODWILL OR OPPORTUNITY, OR FOR ANY TYPE OF INDIRECT, SPECIAL, LIQUIDATED, PUNITIVE, EXEMPLARY, COLLATERAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER LOSS OR COST OF A SIMILAR TYPE.
7. COMPLIANCE. Purchaser acknowledges and agrees that all transactions with Bioventus in connection with this Invoice are made in good faith on the basis of arms-length negotiation. Purchaser agrees to comply with all applicable laws in connection with the Invoice, including all standards applicable to disclosure and reporting the existence and terms of this Invoice to Medicare, Medicaid or other Federal or State health care programs in accordance with 42 C.F.R. § 1001.952(h)(1). The Parties acknowledge and agree that for purposes of 42 C.F.R. Section 1001.952(h), any reduction in the amount Bioventus charges Purchaser is a “discount or other reduction in price” to the Purchaser. Where required, Purchaser shall ensure that the value of the discount or reduction in price is accurately reflected in the purchase price reported under any state or federal program which provides cost or charge-based reimbursement to Purchaser for the Products covered by this Invoice in accordance with applicable regulations. Bioventus and Purchaser each hereby represent and warrant that they and their employees, agents or contractors involved with supplying or buying Products are not and at no time have been excluded from participation in any federally funded health care or procurement/non-procurement programs, including Medicare/Medicaid.
8. PROHIBITED PRACTICES. Purchaser agrees that it shall not engage in the following practices: (a) provide any financial inducement to or attempt any pass-through of discounts/rebates provided by Bioventus pursuant to this Invoice to any third party to induce the use, referral or recommendation of Bioventus products; or (b) engage in any policy or practice in connection with this Invoice (i) that requires use of Bioventus products; (ii) that compromises independent medical judgment;(iii) that is inconsistent with a patient’s best interests; or (iv) where purchases are not for Purchaser’s “own use” as that term is defined in Abbott Laboratories v. Portland Retail Druggist Association, Inc. 425 US 1 (1976).
9. MISCELLANEOUS. This Invoice constitutes the entire agreement between the parties with respect to the purchase of Products, and any modification or amendments must be in writing and signed by both Parties. The Invoice is in lieu of and replaces any and all terms and conditions set forth in any documents issued by Purchaser. In the event the parties enter into a written agreement with respect to the purchase of Products and there is a conflict between the written agreement and this Invoice, the terms and conditions of such written agreement shall govern. Any additional, different, or conflicting terms and conditions on any such document issued by Purchaser at any time are hereby rejected by Bioventus and will not be binding in any way on Bioventus. The Parties agree to comply with all applicable laws and regulations, including but not limited to those relating to the manufacture, purchase, resale, exportation, transfer, assignment or use of the Products. Any waiver by a Party of strict compliance with this Invoice must be in writing, and any failure by either Party to require strict compliance in one instance will not waive its right to insist on strict compliance thereafter. This Invoice may only be modified by a written instrument signed by authorized representatives of both parties. This Invoice is governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded. BOTH BIOVENTUS AND PURCHASER KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVE ALL RIGHTS TO A JURY TRIAL IN ANY ACTION OR PROCEEDING RELATED IN ANY WAY TO THIS INVOICE. If Bioventus’ performance is delayed by any cause beyond its reasonable control (regardless of whether the cause was foreseeable), Bioventus shall not be liable for delay or any consequences of the delay.