1. Acceptance of Orders. All products and services of Sonex Health, Inc. (“Company”) are furnished to the buyer identified in a quote, price list or other order form (“Buyer”) only on the terms and conditions stated below (“Terms”) and in such quote, price list or other order form (together, the “Agreement”). Each order from the Buyer shall be subject to these Terms, and acceptance of an order by Company and Company’s performance under the terms of the Agreement is expressly conditioned on the Buyer’s assent to such Terms. Any additional or conflicting terms shall have no effect. Orders are non-cancellable. In the event Buyer requests that an order for Products which it has placed with Company be cancelled prior to shipment, such cancellations are subject to Company’s written approval and Buyer shall be liable to Company for all costs incurred by Company as a result of such cancellation, including but not limited to, cancellation costs to suppliers and unreimbursed advances on goods, if any, together with any specifically identifiable incidental and consequential expense.
2. Prices. All prices are firm unless otherwise agreed to in writing. Company agrees to provide Buyer any pricing offered by Company to such Buyer in a written quote provided that such quote is accepted in writing by Company prior to the expiration date of such quote and such are orders are intended for shipment within 60 days thereafter. Any additions to outstanding orders will be at Company’s then current pricing when such additions are accepted by Company.
3. Changes. Company may at any time make such modifications or changes in design and construction of the Products, components or parts as Company deems appropriate, without notice to the Buyer, subject to applicable governmental regulations.
4. Delivery, Claims and Delay. All delivery dates are approximate and will be contingent upon Company’s receipt of confirmed orders and approval by Company of credit information. Company will not be liable for any failure to meet shipping or delivery schedules or for any damages caused as a result of any delay in delivery or failure to deliver. Delivery of Products shall be FOB Company’s facility. The risk of loss or damage to the Products shall be assumed by Buyer upon the shipment of the Products from Company’s facility. Shipping charges are not included in the price quoted for the Products, but will be added to the final invoice for the Products unless otherwise agreed to by the parties in writing.
Company’s Products will be shipped standard ground service, unless otherwise specified. Expedited shipping is available upon request at an additional fee. Company reserves the right to make delivery in installments. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve the Buyer of its obligation to accept remaining deliveries. Claims for shortages or other errors in delivery must be made in writing to Company within 10 days after receipt of shipment. Damage or destruction of the Products after delivery shall not release the Buyer from its obligation to pay for such Products.
5. Payment Terms. The terms of payment for Products shall be net cash, net 30 days after shipment of the Products. Company reserves the right to require pre-paid payment terms from any Buyer whose account is overdue for a period of more than 30 days or who has an unsatisfactory credit or payment record. Company may also refuse to sell to Buyer until overdue accounts are paid in full.
6. Taxes and Other Charges. Any manufacturer’s tax, retailer’s occupation tax, use tax, sales tax, excise tax, value-added tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever, imposed by any governmental authority, on or measured by any transaction between Company and the Buyer, shall be paid by the Buyer in addition to the prices quoted or invoiced, unless Company specifically states in writing that such taxes or charges are included in such price. If applicable, the Buyer shall provide written evidence of its tax exempt status.
7. Limited Warranties and Remedies. Company warrants all Products manufactured by it and supplied hereunder to be free from defects in material and workmanship and shall meet the published technical and performance specifications for the Products for a period of one (1) year from the date of delivery or the expiration of a Product’s shelf life, whichever is shorter. The Product is designed for single use only and is not reusable. If the Product fails through no fault of Buyer, the Product will be replaced by Company. All returns based on defect must be accompanied by a complaint number, available by calling Company’s Customer Service Department at 888-518-8780 and shipping all authorized returns to the main office address above within 10 days and accompanied by the appropriate RMA number and complaint number. This warranty shall not apply to Products that are re-used or defects or damage resulting from: fire; misuse; abuse; accident; neglect; improper care and/or maintenance; lack of care and/or maintenance; Buyer-supplied products or equipment used in connection with the Product; modification or repair of which is not authorized by Company; permitting any substance whatsoever to contaminate or otherwise interfere with the Product; and any other cause outside the control of Company.
Unless otherwise agreed in writing, the Buyer’s sole and exclusive remedy under the above warranty is limited to replacing, free of charge, a Product which is reported to Company’s Customer Service Department and which is thereafter returned with the appropriate RMA number and complaint number, not later than 10 days after the expiration date of the applicable warranty, to the Company’s Customer Service Department, transportation charges prepaid, and which, upon Company’s examination, is found not to conform with above warranties. Company does not accept returned goods for a cash refund.
If the Buyer transfers, sells or assigns the Products other than to an affiliate of the Buyer, all obligations under this warranty will terminate unless the Buyer receives the prior written consent of Company for the transfer, sale or assignment.
THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, WRITTEN OR UNWRITTEN, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE, AND WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OF TRADE OR ANY OTHER MATTER. COMPANY SHALL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES WHATSOEVER WITH RESPECT TO PRODUCTS, PARTS OR SERVICES MANUFACTURED OR FURNISHED BY IT, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. ANY REMEDIES UNDER THE TERMS OF THIS SECTION ARE SUBJECT TO THE TERMS AND LIMITATIONS IN SECTION 8 BELOW.
8. Damages and Liability. COMPANY’S TOTAL LIABILITY IN DAMAGES OR OTHERWISE FOR ANY CLAIM ARISING FROM OR IN CONNECTION WITH THE PRODUCTS SHALL NOT EXCEED THE PAYMENT, IF ANY, RECEIVED BY COMPANY FOR THE PRODUCTS THAT FORM THE BASIS FOR THE CLAIM. COMPANY SHALL NOT BE SUBJECT TO AND DISCLAIMS ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHER THEORIES OF LAW, WITH RESPECT TO PRODUCTS SOLD BY COMPANY, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO.
IN NO EVENT SHALL COMPANY BE LIABLE FOR AND DISCLAIMS ANY PENALTIES, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONTINGENT, OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOSS OF USE, LOST REVENUES, LOST PROFITS, DAMAGE TO ASSOCIATED EQUIPMENT OR FACILITIES, AND ANY SIMILAR DAMAGES, EXPENSES, OR LOSSES, AND REGARDLESS OF HOWEVER CAUSED, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY. THE PARTIES EXPRESSLY AGREE THAT THE LIMITATIONS TO DAMAGES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SHALL SURVIVE THE DETERMINATION OF ANY COURT OF COMPETENT JURISDICTION THAT ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
9. Governing Provisions. The Agreement, including these Terms, shall constitute the entire agreement between the Buyer and Company, and hereby supersedes and replaces any previous agreements with regards to these matters. THE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF MINNESOTA (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS).
In the event of any ambiguity or conflict between or among these Terms, and any other agreement or writing signed by Company, the order of document precedence shall be as follows:
i. The provisions of the Agreement, any Company quote, price list or other order form;
ii. The provisions of the Terms; and
iii. The provisions of any other agreement or writing signed by Company relating to the subject matter in question.
10. Performance; Force Majeure. Neither party shall be liable for any delay in delivery or other default in performance that is due to unforeseen circumstances, or to causes beyond its reasonable control and without the fault or negligence of such party. Such causes and circumstances include, without limitation, labor disputes, unforeseen action or inaction of civil or military authorities, or of contractors or subcontractors, or of other third parties (other than those contractors, subcontractors, or third parties under the control of the nonperforming party), civil unrest, epidemics, natural causes or acts of God, including but not limited to fire, flood and storms, and any other cause or condition beyond the parties’ reasonable control. Provided any such delay or default is neither material nor indefinite, the time for performance shall be extended for a commercially reasonable period of time and thereafter the other party shall accept performance hereunder. The Buyer’s exclusive remedy for other delays and for Company’s inability to deliver for any reason shall be rescission of the Agreement.
11. Default. The Buyer’s failure to either make any payment when due or comply with any other material term or condition of these Terms shall constitute default. If the Buyer has not cured the default within 30 days after Company gives written notice of such default, Company may, in addition to any other rights and remedies for damages provided herein or under law, terminate the Agreement between itself and the Buyer and terminate its obligations to perform thereunder by giving the Buyer written notice to take effect upon receipt. An interest charge equal to 1 1/2% per month (18% per year) or the highest rate allowable by applicable law, whichever is less, will be added to invoices outstanding beyond 30 days after shipment.
12. Assignment. The Buyer may not assign any of its rights or delegate any of its duties hereunder, except to a majority-owned and controlled affiliate of the Buyer, without the prior written consent of Company, such consent not to be unreasonably withheld.
13. Waiver. The failure of the Buyer or Company at any time to require the performance of any obligation will not affect the right to require such performance at any time thereafter. The waiver of any remedy with respect to any default will not be taken as a waiver of any remedy for any succeeding default.
14. Invalidity and Interpretation. The invalidity or unenforceability of any provision hereof, whether in whole or in part, for any reason, will not affect the remaining provisions, and all Terms will be construed in all respects as if any such invalid or unenforceable provision(s) were omitted. If any part of this Agreement shall be determined to be invalid, illegal or unenforceable, such part shall be reformed, if possible, to conform with any applicable laws.