Terms & Conditions
1. Term. This Agreement lasts for three (3) years from the Effective Date (the “Term”) and shall automatically renew for successive one (1) year terms (“Renewal Term”) unless earlier terminated as provided herein.
2. Purchase Orders. Account may order Products in accordance with this Agreement by submitting written purchase orders (each an “Order”) to Medaxis. No term or condition of any Order issued by Account will bind Medaxis or have any effect whatsoever except to state the type and quantity of Products being ordered. Issuance of an order confirmation number by Medaxis signifies only its receipt of the Order, and does not signify that the Order will be shipped. Medaxis reserves the right in its sole discretion not to accept any Order or portion thereof. Medaxis shall confirm, by invoice, the specifics of any accepted Order (or portion thereof), including the quantity, description of Equipment, including units assigned serial number, shipment destination, terms of payment and any other terms.
3. Shipping; Risk of Loss. Subject to Medaxis’s acceptance of the Order, Medaxis will use reasonable commercial efforts to ship the Product to Account on the shipment date specified in the Order. Shipping costs will be responsibility of Account FOB origin or Ex works. Medaxis shall add any shipping costs to the invoice or will provide an invoice for shipping costs.
4. Taxes. Account agrees to pay directly or reimburse Medaxis, at Medaxis’s option, and indemnify and hold Medaxis harmless from all liability for charges and taxes (local, state and federal) which may now or hereafter be imposed or levied upon the sale, purchase, ownership, leasing, possession or use of the Products, excluding, however, any income taxes levied on any payments made by Account to Medaxis. Unless Account has furnished appropriate evidence to Medaxis of its exemption from sales taxes, Account agrees that Medaxis may add all applicable sales taxes to the invoices. At Medaxis’s reasonable request, Account agrees to provide Medaxis with evidence of compliance with this section.
5. Payment Terms. Medaxis may offer Account credit terms upon satisfactory review of a completed commercial credit application, as provided by Medaxis, and Medaxis’s credit policies and practices in effect from time to time. Account agrees that Medaxis may make inquiries and obtain Account’s credit information as it deems appropriate. Should credit terms be awarded, Account agrees to pay any outstanding invoices within thirty (30) days of the issuance of the invoice. If no credit terms are awarded, Account must pay in advance prior to shipment by Medaxis. Account must object in writing to any item on an invoice or other statement within sixty (60) days after the date of the invoice or statement. After sixty (60) days, the invoice or statement is final and binding. Account agrees to pay interest on any amount not paid by the due date at the rate of the lower of 1.5% per month or the highest rate of interest permitted by local law. Medaxis may revoke credit terms at any time. If any portion of the account remains unpaid for more than sixty (60) days, Medaxis may, at its option, terminate this Agreement without notice.
6. Product Changes. Medaxis may discontinue the manufacture or distribution of any Products or modify their design or materials at any time.
7. Returns Goods Policy. All Product returns are subject to Medaxis’s Return Goods Policy and shall be made in accordance with a Return Merchandise Authorization (“RMA”), and Medaxis may charge Account a minimum re-stocking fee of twenty (20%) percent.
8. Termination.
8.1 Termination for Cause. Either Party may terminate this Agreement immediately for cause: (i) if the other Party fails to perform any material obligation under this Agreement and does not remedy such failure within thirty (30) days after receipt of written notice of such default; (ii) if the other Party (a) becomes insolvent, (b) is unable to pay its debts as they become due; (c) commences a bankruptcy proceeding, whether voluntary or involuntary, (d) makes an assignment for the benefit of credits or (e) becomes subject to the appointment of a receiver or liquidator; or (iii) if the other Party is found guilty of fraud or is debarred from participating in any federal or state healthcare program.
8.2 Termination for Convenience. Either Party may terminate this Agreement for any reason at any time by providing ninety (90) days’ advanced written notice to the other Party.
8.3 Remedies. Nothing in this Agreement is intended to limit remedies available to Medaxis at law or in equity. In addition, Account agrees that money damages would not adequately compensate Medaxis for a violation of Section 13 (Confidentiality) and, therefore, consents to specific enforcement of that section by a court of equity and waives any defense based on the adequacy of a remedy at law. Account will pay all reasonable attorneys, collection and court fees and expenses Medaxis incurs in its efforts to collect any sums due to Medaxis or to enforce its rights against Account.
8.4 Survival. Except as expressly provided herein, the Parties’ representations, warranties, and covenants survive termination of the Agreement.
9. Rented or Consigned Equipment. The following standard terms and conditions apply if Account rents or receives on consignment Medaxis owned Equipment.
9.1 Maintenance. Account agrees to use all Equipment in accordance with Medaxis’s instructions for use, keep all Equipment in clean condition and good working order and repair (ordinary wear and tear excepted) and check all Equipment after each use. Account agrees to notify Medaxis and not use any Equipment if (i) it appears that any Equipment is damaged or malfunctioning, or needs repair; or (ii) it has knowledge or reasonable suspicion that any Equipment has been contaminated with bio-hazardous material. Account agrees that the Equipment shall only be used at the destination listed on the packing slip. Transfer of any Equipment within Account’s location or to any other locations must be approved in writing by Medaxis before the transfer and may only be done so if the other location is registered with Medaxis. Account shall not rent the Equipment to patients. Account agrees to return all defective or inoperative Equipment to Medaxis promptly.
9.2 Records; Inspection. Account agrees to keep adequate records concerning the use of the Equipment and, upon request, provide the records to Medaxis and confirm the location of each unit of Equipment. Medaxis has the right to inspect the Equipment, Account’s business records related to the Equipment and Account’s performance of its obligations in accordance with this Agreement during business hours upon reasonable prior notice to Account.
9.3 Liability for Damaged or Lost Equipment. Account is responsible, regardless of fault, for any loss or damage to any item of Equipment after it is delivered to Account, including without limitation during return shipment, up to the then current fair market value of the Equipment at that time plus Medaxis’s related expenses, except for damage covered by Medaxis’s standard warranty. Account must notify Medaxis of any loss or damage within 60 days of its occurrence.
9.4 Returns. Account shall return all Equipment within thirty (30) days of the expiration or termination of this Agreement. Any Equipment returned to Medaxis is considered returned when it is actually received by Medaxis in the condition required by Section 9.1 of this Agreement, as determined by Medaxis’s records. Except for Equipment which is returned due to defects under Medaxis’s standard warranty, Account pays shipping charges for returning Equipment to Medaxis at the expiration or termination of this Agreement.
9.5 Title; Agency.
9.5.1 Title. (i) Title to the Equipment shall remain with Medaxis; (ii) nothing herein shall create a security interest or give Account title or other property interest in the Equipment; (iii) Account agrees not to claim the Equipment as its property, purport to subject it to any pledge, lien, security interest or other encumbrance of any kind in favor of any third party, including any general secured creditor, or remove or deface any label that may be placed on the Equipment to identify Medaxis as the owner; and (iv) if Account defaults, becomes bankrupt or insolvent, makes an assignment for the benefit of creditors or goes into liquidation, Medaxis shall have the right, upon written or verbal notice, to remove the Equipment from Account’s facility.
9.5.2. Agency. Account hereby grants to Medaxis a security interest in all Products (and the proceeds thereof) purchased by Account, and a security interest in the rents, fees or other revenue collected by Account in respect of any rented or consigned Equipment, in each case to secure Account’s obligations pursuant to this Agreement. Account agrees not to sell, transfer or dispose of, or grant, pledge or convey any other security interest or other right or interest in or to, any Equipment to any person or entity prior to the payment and discharge of all amounts due to Medaxis pursuant to this Agreement. Account agrees at all times to maintain Account’s books and records in respect of Equipment in such a way that Medaxis’s ownership or security interest in the Equipment and Products is made known to any person or entity inspecting such books and records. Medaxis has the right to create and file, or request Account to create or file, any UCC statements or other documents it deems necessary to record or notify third parties of Medaxis’s security interest in or ownership of the Products.
10. Representations and Warranties. Account represents and warrants that (i) it has full power and authority to enter into and perform this Agreement, and the person(s) signing this Agreement on Account’s behalf has been duly authorized and empowered to enter into this Agreement; (ii) it will employ or have retained qualified healthcare professionals with training in the use of the Products; (iii) the Products will be used in accordance with the terms and conditions of this Agreement, Medaxis’s cleared FDA indications for use, the instructions for use and terms of warranty furnished by Medaxis, and all applicable laws and regulations; (iii) it will provide training to all users of the Products and communicate all necessary or appropriate warnings and instructions to users based on the instructions for use provided by Medaxis; and (iv) it will not alter the Products in any way or expand or change the terms of any Product warranties or instructions provided by Medaxis; and (v) it will use and market only Medaxis Disposables for use with Medaxis Equipment to assure the quality and performance of the Products.
11. WARRANTY AND LIMITATIONS. EXCEPT AS EXPRESSLY SET FORTH IN THE WARRANTY SECTION OF THE DOCUMENTS ACCOMPANYING THE PRODUCTS OR IN ANY WARRANTY SECTION OF PRODUCT LITERATURE FURNISHED BY MEDAXIS, AS IN EFFECT FROM TIME TO TIME (THE “INSTRUCTIONS”), ALL PRODUCT IS FURNISHED ON AN “AS IS” BASIS AND MEDAXIS MAKES NO REPRESENTATION OR WARRANTY OF ANY NATURE OR KIND AS TO ANY PRODUCT. MEDAXIS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL OTHER WARRANTIES ARISING BY OPERATION OF LAW, COURSE OF DEALING, CUSTOM OF TRADE OR OTHERWISE. MEDAXIS’S SOLE OBLIGATION AND LIABILITY IN RESPECT OF ANY WARRANTY AS SET FORTH IN THE INSTRUCTIONS AND IN RESPECT OF ANY OTHER CLAIM PERTAINING TO THE PRODUCT, WHETHER ASSERTED AS A CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER TYPE OF CLAIM SHALL BE, AT ITS OPTION, TO REPAIR OR REPLACE THE RELEVANT EQUIPMENT OR PRODUCT AT ITS COSTS. MEDAXIS SHALL NOT BE LIABLE TO ACCOUNT UNDER ANY CIRCUMSTANCES FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, LOSS OF SALES, LOSS OF PROFITS, BUSINESS INTERRUPTION OR OTHER ECONOMIC LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PRODUCTS.
12. Indemnification
12.1. Medaxis shall indemnify and hold harmless Account and its Affiliates and their respective officers, directors, employees, agents and subcontractors (collectively, “Affiliates”) from and against all claims, damages, losses, costs and reasonable expenses (including reasonable attorney’s fees) (collectively, “Liabilities”) to the extent arising from or related to any misconduct or negligent act or omission in the performance of this Agreement by Medaxis or its Affiliates, or any inaccuracy in any representation or warranty made by, or breach of this Agreement by, Medaxis.
12.2. Account shall indemnify and hold harmless Medaxis and its Affiliates from and against all Liabilities to the extent arising from or related to any misconduct or negligent act or omission in the performance of this Agreement by Account or its Affiliates, or any inaccuracy in any representation or warranty made by, or breach of this Agreement by, Account.
12.3. If any claim is filed by a third party against any Party entitled to the benefit of indemnity under this Agreement, written notice shall be given to the indemnifying party as promptly as reasonably practicable; provided that the failure to give timely notice will not affect its rights to indemnification, except to the extent that the indemnifying party demonstrates actual prejudice caused by the delay. The indemnifying party shall have the right, if it so elects within thirty (30) days after notice, (i) to take control of the defense and investigation of any such third-party claim and (ii) to employ and engage counsel reasonably acceptable to the indemnified party to handle and defend the same; provided, however, that the indemnified party shall be entitled to participate in such defense at its own cost. Not withstanding the foregoing, neither Party shall, without the written consent of the other Party, settle or compromise any third-party claim for which indemnification may be sought.
13. Confidentiality. Neither Party shall disclose or permit disclosure of any Confidential Information of the other Party to third parties or to employees of other Party, other than directors, officers, employees, consultants and agents of the other Party who are required to have the information in order to use the Products or Equipment. “Confidential Information” means all non-public information, including without limitation sensitive, proprietary information, in hard copy, electronic, written, oral or any other form, obtained by the receiving party from or on behalf of the disclosing party, which concerns the business or affairs of the disclosing party or its affiliates or their respective assets, employees, officers, directors, customers, or suppliers including information which is indicated in some manner (including orally, marked with a “Confidential” label or otherwise) as being confidential or proprietary or which would logically be considered confidential, sensitive or proprietary to the disclosing party or any third party with whom the disclosing party conducts business. The terms and conditions of this Agreement along with the discussions and all past discussions between the Parties related to the Equipment and any other documentation relating thereto or terms thereof also shall be considered Confidential Information. Any Confidential Information will be used by the receiving party solely for the purpose of carrying out the receiving party’s obligations under this Agreement. Each Party agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of the other Party in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such information. Such measures shall include, but not be limited to, the highest degree of care that each Party utilizes to protect its own Confidential Information of a similar nature, which shall be no less than reasonable care. Each Party further agrees to notify the other Party in writing of any actual or suspected misuse, misappropriation or unauthorized disclosure of the other Party’s Confidential Information which may come to either Party’s attention.
14. Compliance with Laws.
14.1. In performing its obligations under this Agreement, Medaxis and Account will comply with, and will cause its affiliates, employees, and agents to comply with, the requirements of all applicable laws, rules, and regulations, including, without limitation, the Social Security Act, the Federal Stark Law, the Federal Anti-Kickback Statute, the Federal False Claims Act, the Federal Health Insurance Portability and Accountability Act (HIPAA), as amended, and all other applicable state and federal fraud and abuse laws and regulations, as each of the foregoing may be amended from time to time.
14.2. Notwithstanding any unanticipated effect of any provision herein, neither Party intends to violate the Federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)), its implementing regulations, and any interpretations thereof, as amended from time to time or any similar state statute. Each Party specifically represents and warrants that it shall comply with the Federal Anti-Kickback Statute, 42 U.S.C. §1320a-7b(b), any applicable “exceptions” or “safe harbors” under the Federal Anti-Kickback Statute, including the discount exception, 42 U.S.C. §1320a-7b(b)(3)(A), the discount safe harbor, 42 C.F.R. § 1001.952(h), the equipment rental safe harbor, 42 C.F.R. § 1001.952(c) and comparable state laws or regulations.
14.3. Account further represents and warrants that it shall comply with all applicable disclosure and other requirements set forth in 42 C.F.R. § 1001.952(h) and shall properly reflect and/or report any discount included in this Agreement and any other discount or reduction in price in its costs claimed or charges made to federal or state health care programs requiring such disclosure, in accordance with applicable billing and coding rules.
14.4. Account represents and warrants that any negotiations or discussions with Medaxis have not influenced decisions on clinical safety or efficacy of the Equipment or Products because the determination of clinical efficacy and appropriateness of medical devices and supplies, including the Equipment and Products, have been or will be made based on the best interests of patients by qualified and unbiased health care professionals and have preceded and are paramount to the considerations of any arrangements set forth in this Agreement.
14.5. Pursuant to 42 U.S.C. §1395x(v)(1)(I), until the expiration of six (6) years after its termination of this Agreement, Account shall make available, upon written request, to the Secretary of the U.S. Department of Health and Social Services, or upon written request, to the Comptroller General or any of their duly authorized representatives, the contract, and books, documents and records of Account that are necessary to certify the nature and extent of costs incurred under the Agreement.
14.6. The Agreement is the product of an arms-length transaction. The Parties acknowledge and agree that nothing contained in this Agreement shall obligate Account to purchase, lease, or order any other equipment, products, services, or other items for which payment may be made in whole or in part under Medicare, Medicaid or any other federal or state health care program nor shall this Agreement require either Party to refer business to the other Party or take into account the volume or value of referrals, nor has any unlawful remuneration been solicited or received for the furnishing, arranging, or recommending the purchase, lease or ordering of any goods or services reimbursable under any federal or state health care program.
14.7. Each Party represents and warrants that such Party has not: (a) been listed by any federal or state agency as excluded, debarred, suspended or otherwise ineligible to participate in federal or state healthcare programs; or (b) been convicted of any crime relating to any federal or state healthcare program. Each Party agrees to immediately notify the other Party in writing in the event it is listed by a federal or state healthcare agency as excluded, debarred, suspended or otherwise ineligible to participate in any federal or state healthcare programs or if it is convicted of any crime relating to any such program, or if it is being investigated by any federal or state agency in relation to any federal or state healthcare program. Either Party may terminate this Agreement immediately by notice to the other Party if the other Party is found guilty of fraud or is debarred from participating in any federal or state healthcare program.
14.8. Upon the enactment, promulgation, rescission, modification, or interpretation of any federal or state law or regulation after the Effective Date, or if any terms or conditions of this Agreement are determined by any court or by the Office of Inspector General of the Department of Health and Human Services or other government agency to be contrary to any applicable federal or state fraud and abuse laws or regulations, including, but not limited to the Federal Stark Law, the Federal Anti-Kickback Statute, the Federal False Claims Act, the Federal Health Insurance Portability and Accountability Act (HIPAA), and similar laws and regulations, the Parties agree to promptly and in good faith confer and resolve any issues so as to make the performance of this Agreement consistent with all applicable statutes and regulations and any non-compliant activities shall cease immediately. In the event the Parties are unable to agree to new or modified terms as required to bring the entire Agreement into compliance, either Party may terminate this Agreement on thirty (30) days’ written notice to the other Party.
15. Independent Contractor. The relationship of the Parties shall be that of independent contracting parties, and nothing in this Agreement constitutes the formation of an affiliation, partnership, employment relationship or agency between the Parties. Under no circumstances will Account act or attempt to act, or represent itself, directly or indirectly, as an agent of Medaxis.
16. Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by Account, by operation of law or otherwise, without the prior written consent of Medaxis, and any attempted assignment and delegation without such consent will be void and without effect. Medaxis may freely transfer, assign or delegate its rights and duties hereunder. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties hereto and their respective representatives, heirs, administrators, successors and permitted assigns.
17. Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon receipt, when delivered personally or by an internationally recognized courier, overnight delivery service, or email, if such notice is addressed to the Parties at the addresses set forth below or as the Parties may from time to time indicate in writing. Notice given by mail shall be deemed to have been served seven (7) calendar days after it was deposited in the mail. Notice given by overnight courier shall be deemed to have been served on the date on which it was delivered. Notice given by e-mail shall be deemed to have been served on the date on which it was transmitted.
If to Medaxis:
Medaxis LLC
1101 Corporate Drive
McHenry, IL 60050
commercialoperations@medaxis.com
If to Account:
_________________________
_________________________
_________________________
Attn: ____________________
Email: ___________________
18. Force Majeure. Except for payment obligations, no Party will be responsible or liable to the other Party for nonperformance or delay in performance of any terms or conditions of this Agreement due to acts of God, government-imposed embargos, wars, disruptions in telecommunications services, acts of terrorism, energy crises, riots, strikes or other labor disputes, shortages of labor or materials, disruptions to supply chain or delays due to third-parties out of the control of the Party.
19. No Waiver. Any waiver (express or implied) by either Party of any breach of this Agreement will not constitute a waiver of any other or subsequent breach. No provision of the Agreement will be waived by any act, omission or knowledge of a Party or its agents or employees except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of the waiving Party.
20. Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect.
21. Governing Law. This Agreement shall in all respects be governed by the laws of the State of Illinois without reference to its principles of conflicts of laws.
22. Jurisdiction. Each Party (a) consents to the exclusive jurisdiction and venue of the federal and state courts located in Cook County, Illinois in any action arising out of or relating to this Agreement; (b) waives any objection they might have to jurisdiction or venue of such forums or that the forum is inconvenient; and (c) agrees not to bring any such action in any other jurisdiction or venue to which either Party might be entitled by domicile or otherwise. BOTH PARTIES WAIVE A JURY TRIAL IN ANY ACTION BETWEEN THEM WHICH ARISES OUT OF THIS AGREEMENT.
23. Entire Agreement. This Agreement constitutes the entire agreement of Medaxis and Account regarding the subject matter hereof and supersedes and replaces any other prior written or oral agreement concerning such subject matter. This Agreement may be amended only by a written document executed by duly authorized representatives of Medaxis and Account. No provision of any order form, order request or other document issued by Account will be binding on Medaxis or have any effect on this Agreement except to state the type and quantity of Equipment and Products ordered by Account