ALL SALES ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:
AGREEMENT: Except as otherwise set forth in a written sales agreement (a “Sales Contract”), if any, executed by EndoChoice, Inc. (together with its affiliates and subsidiaries, “EndoChoice”) and a purchaser of EndoChoice’s products (a “Buyer”), these terms and conditions govern all sales of products and/or services (“Products”) manufactured and sold by EndoChoice to a Buyer regardless of whether Buyer purchases Products through the medium of a Sales Contract, or through written purchase orders, electronic orders, verbal or written quotations, or any other writings or communications from EndoChoice and/or Buyer relating to the Products (collectively or individually, an “Order”). “Sales Terms” refers to these terms and conditions as amended from time to time. EndoChoice’s acceptance of any Order is expressly subject to Buyer’s assent to each and all of the terms and conditions set forth in these Sales Terms. Buyer’s assent to these terms and conditions shall be conclusively presumed from Buyer’s failure to submit written objection thereto, or from Buyer’s acceptance of all or any part of the Products ordered.
ORDER OF PRECEDENCE: No addition to or modification of these terms and conditions will be binding upon EndoChoice unless specifically agreed to by EndoChoice in writing. If the Order or other correspondence contains terms or conditions contrary to or in addition to the terms and conditions contained in these Sales Terms, acceptance of any Order by EndoChoice will not be construed as assent to such contrary or additional terms and conditions, or constitute a waiver by EndoChoice of any of the terms and conditions contained herein. In case of conflict with any other document, these Sales Terms will control. Any reference to the Buyer’s purchase order or any other documents by EndoChoice will not affect or limit the applicability of the terms and conditions contained in these Sales Terms.
PRICE: Current list and promotional prices may be found at www.endochoice.com. EndoChoice reserves the right to revise prices at any time without notice. Customer contract pricing is subject to the terms of the specific Order or Sales Contract in which the contract pricing is contained. Unless otherwise specified (a) all prices, quotations, shipments and deliveries by EndoChoice are F.O.B. Origin, Alpharetta, GA, freight prepaid and added to the invoice; (b) all Orders are accepted subject to EndoChoice’s price in effect at the time of shipment; and (c) all transportation and other charges are for the account of Buyer, including any increase or decrease in such charges prior to shipment. Orders are not binding upon EndoChoice until accepted by EndoChoice. Any quotations given by EndoChoice will be valid for the period stated on the quotation.
TAXES: Any tax which EndoChoice may be required to pay or collect through assessment or otherwise under any existing or future law upon or with respect to the sale, purchase, delivery, transportation, storage, processing, use or consumption of any Products described herein, including without limitation, taxes upon or measured by receipts from sales, shall be for the account of Buyer and may be added to the price of such Products. Buyer shall promptly pay the amount thereof to EndoChoice upon demand but may, in lieu of such payment, furnish tax exemption certificates acceptable to the appropriate taxing authorities to EndoChoice.
PAYMENT TERMS: Payment terms are Net 30 Days from invoice date to the date payment is postmarked (excluding C.O.D. and Visa/MC/American Express orders). If Buyer has an open credit memo on its account, it should be used to reduce Buyer’s next payment. Buyer should note which invoices and credit memos are being used on a payment to help EndoChoice maintain Buyer’s account accurately. Credit memos expire one year from the original date. Any discrepancy in an invoiced price and corresponding Order or Sales Contract price must be reported to EndoChoice Customer Care within 30 days of the date of the invoice. If Buyer fails to make payments on any Order or Sales Contract between Buyer and EndoChoice in accordance with EndoChoice’s terms, EndoChoice, in addition to any other remedies available to it, may at its option (a) defer further shipment until such payments are made and satisfactory credit arrangements are reestablished; or (b) cancel the unshipped balance of any Order. Any amounts that are not paid when due shall bear interest from the date payment was due until the date payment is received by EndoChoice, at a rate of interest equal to the lower of (i) 1.5% per month or (ii) the highest rate of interest permitted under applicable law. Buyer will be responsible for all costs of collection of unpaid invoices, including reasonable attorney’s fees.
CREDIT: All Orders are subject to the approval of EndoChoice’s Finance Department. EndoChoice may at any time refuse to make shipment or delivery if Buyer fails to fulfill the terms and conditions of payment or fails to provide security in compliance with EndoChoice’s credit policies. EndoChoice policies or practices may be changed at any time. EndoChoice may require payment in full or other security in advance. Without limiting the generality of the foregoing, if Buyer becomes the subject of a bankruptcy or other insolvency proceeding, or fails to pay EndoChoice’s invoices as they become due, EndoChoice reserves the right to: (a) cancel all or any part of a Sales Contract or Order; (b) modify the terms of payment prior to shipment; (c) require “Cash in Advance” terms; or (d) delay or cancel any Product shipment.
REPORTING: To the extent that any discounts and/or rebates are issued by EndoChoice and received by Buyer with respect to Products under these Sales Terms, such discounts and/or rebates may be considered “discounts or other reductions in price” as such terms are defined under the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b). EndoChoice and Buyer agree to use their best efforts to comply with any and all requirements imposed on sellers and buyers, respectively, under 42 U.S.C. § 1320a-7b(b)(3)(A) of the Anti-Kickback Statute and the 'safe harbor' regulations regarding discounts or other reductions in price set forth in 42 C.F.R. § 1001.952(h). In this regard, Buyer may have an obligation to accurately disclose the net cost actually paid by Buyer for the Products covered by these Sales Terms in accordance with applicable state or federal cost reporting requirements.
SHIPPING AND TITLE TO PRODUCTS: Unless otherwise agreed, EndoChoice will be entitled to determine the method of shipment (including transport companies, dispatch route, packaging). Title and risk of loss shall pass to the Buyer upon delivery of the Products to the carrier.
SHIPMENT VERIFICATION: Any discrepancy in the quantity billed and the quantity received resulting from damage (concealed or otherwise), shortages, overages, or wrong Product, must be reported to EndoChoice Customer Care within 10 days of the date a shipment is received. Any discrepancy reported after 10 days requires EndoChoice Management authorization for credit. EndoChoice will not provide proof of shipment delivery after 90 days. If Products are received with damage to the exterior packaging, this damage must be noted on the carrier's bill. Any loss or shortage caused by damage in transit will be for account of Buyer. Claims for non-delivery must be reported to EndoChoice Customer Care within 10 days from the date of invoice, failing which, EndoChoice shall be under no liability for non-delivery.
EXPRESS LIMITED WARRANTY: EndoChoice warrants that on the delivery date (a) the Products delivered under the Order or Sales Contract will be free from defects in material and workmanship and (b) EndoChoice will transfer good title to the Products to the Buyer. Notwithstanding anything herein to the contrary, EndoChoice does not provide any warranty for products manufactured by a third-party, and Buyer’s only recourse for defects in such products will be against the product’s original manufacturer.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ANY OTHER WARRANTIES OF ANY KIND (WHETHER ARISING BY IMPLICATION OR BY OPERATION OF LAW) WITH RESPECT TO THE PRODUCTS. ENDOCHOICE HEREBY DISCLAIMS ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.
EXCLUSIVE REMEDY: The warranty remedy period for Products (excluding spare parts and refurbished or repaired parts) shall end 12 months after date of shipment, whichever first occurs, the warranty remedy period for new spare parts shall end 6 months after date of shipment and for refurbished or repaired parts shall end 90 days after date of shipment (the “Warranty Remedy Period”). If Buyer discovers that any of the Products fail to meet the warranties provided herein during the applicable Warranty Remedy Period, Buyer shall provide EndoChoice with written notice of such nonconformity promptly after such discovery and within the applicable Warranty Remedy Period. If requested by EndoChoice, the Buyer shall return the non-conforming Product to EndoChoice. If EndoChoice determines that the Products are in breach of the express limited warranty, then EndoChoice shall, at its sole discretion, either (i) repair or replace the nonconforming portion of the Products or (ii) refund the portion of the price applicable to the nonconforming portion of Products. If any portion of the Products so repaired or replaced fails to conform to the foregoing warranty, and written notice of such nonconformity is provided to EndoChoice promptly after discovery and within the original Warranty Remedy Period applicable to such Products or 30 days from completion of such repair or replacement, whichever is later, EndoChoice will repair or replace such nonconforming Products. The original Warranty Remedy Period shall not otherwise be extended. SUCH REPLACEMENT OR REFUND IS THE SOLE LIABILITY OF ENDOCHOICE AND THE EXCLUSIVE REMEDY OF BUYER FOR ANY BREACH OF THE EXPRESS LIMITED WARRANTY. In no event shall any Products be returned, reworked or scrapped by Buyer without the express written authorization of EndoChoice.
CONDITIONS TO EXPRESS LIMITED WARRANTY: EndoChoice shall not be responsible for providing working access to the nonconforming Products or for providing transportation to or from any repair facility, all of which shall be at Buyer's risk and expense. Products will not be deemed to be in breach of the express limited warranty if: (i) the non-conformity of the Products resulted from damages occurring after EndoChoice’s delivery of the Products; (ii) the Products have been improperly stored, installed, operated, maintained, repaired or altered; (iii) the Products have been subjected to improper or excessive use, misuse, negligence or accident; (iv) the Products have been used in a manner contrary to EndoChoice's instructions; (v) damage is caused by liquids; (vi) the Products have failed as a result of ordinary wear and tear; or (vii) the non-conformity of the Products has not been reported to EndoChoice in writing within the earlier to occur of 10 days after the Buyer has learned of the non-conformity of the Products or 45 days after delivery of the Products to Buyer. Without limiting the generality of the foregoing, should dampness be found in the mechanical and/or optical system upon receipt of defective Products, EndoChoice shall not be responsible for repair or replacement of components, other than those that are replaced in the ordinary course of the repair. Repair work on certain flexible endoscopes requires work near or with the fibre-optic image guides or light guides (e.g. assembly of a new insertion shaft). In the event that this causes breakage in the glass fibres, the Buyer will not be entitled to any warranty. If Buyer alters or modifies the Products without EndoChoice’s prior written consent, and any claims are asserted against EndoChoice by reason of such alteration or modification, Buyer shall defend, indemnify, and hold EndoChoice harmless against any and all damages, liabilities, expenses and costs in connection therewith or resulting therefrom.
EndoChoice makes no warranty with respect to the Products supplied by EndoChoice but manufactured by others, including, without limitation, the instruments, optics, cameras, monitors and accessories built into the Products comprised of endoscopes. EndoChoice will assign to the Buyer any warranty and guarantee claims it has against the relevant manufacturer.
EndoChoice does not assume any responsibility for compliance with federal, state or local laws and regulations, except as expressly set forth herein, and compliance with any laws and regulations relating to the operation or use of the Products is the sole responsibility of the Buyer.
PATENT INDEMNITY: EndoChoice shall defend at its own expense any action brought against Buyer alleging that the Products or the use of the Products to practice any process for which such Products are specified by EndoChoice (a “Process”) directly infringes any claim of a patent of the United States of America and to pay all damages and costs finally awarded in any such action, provided that Buyer has given EndoChoice prompt written notice of such action, all necessary assistance in the defense thereof and the right to control all aspects of the defense thereof including the right to settle or otherwise terminate such action in behalf of Buyer.
EndoChoice shall have no obligation hereunder and this provision shall not apply to: (i) any other equipment or processes, including Products or Processes which have been modified or combined with other equipment or process not supplied by EndoChoice; (ii) any patent issued after the date hereof; or (iii) any action settled or otherwise terminated without the prior written consent of EndoChoice.
If, in any such action, the Products are held to constitute an infringement, or the practice of any Process using the Products is finally enjoined, EndoChoice shall, at its option and its own expense, procure for Buyer the right to continue using said Products; or modify or replace it with non-infringing equipment or, with Buyer's assistance, modify the Process so that it becomes non-infringing; or remove it and refund the portion of the price allocable to the infringing Products. THE FOREGOING PARAGRAPHS STATE THE ENTIRE LIABILITY OF ENDOCHOICE FOR ANY PATENT INFRINGEMENT.
To the extent that said Products or any part thereof is modified by Buyer, or combined by Buyer with equipment or processes not furnished hereunder or said Products or any part thereof is used by Buyer to perform a process not specified hereunder by EndoChoice, and by reason of said modification, combination, or performance, an action is brought against EndoChoice, Buyer shall defend and indemnify EndoChoice in the same manner and to the same extent that EndoChoice would be obligated to indemnify Buyer under this "Patent Indemnity" provision.
INVENTIONS AND INFORMATION: Unless otherwise agreed in writing by EndoChoice and Buyer, all right, title and interest in any inventions, developments, improvements or modifications of or for Products shall remain with EndoChoice. Any design, drawings or other information submitted to the Buyer remains the exclusive property of EndoChoice. Buyer shall not, without EndoChoice's prior written consent, copy or disclose such information to a third party. Such information shall be used solely for the operation or maintenance of the Products and not for any other purpose, including the duplication thereof in whole or in part.
RETURNED PRODUCTS POLICY (SINGLE-USE, NON-CUSTOMIZED DEVICES AND SUPPLIES ONLY): EndoChoice will accept returned Products comprised of single-use, non-customized devices and supplies from the Buyer, for credit or exchange, under the following conditions:
1. All returns must have written authorization from EndoChoice Customer Care, (1-888-682-3636). This authorization is an estimate, pending inspection by EndoChoice of returned Products.
2. Credit will not be issued for Products returned without proper documentation.
3. Return Authorizations are valid for 30 days and Product must be received at designated EndoChoice location within 30 days from date of issue.
4. Full credit will be given for items shipped in error by EndoChoice if returned within 30 days from date of invoice.
5. Full credit, less a 25% restocking fee, will be given for all Products returned with proper documentation, subject to EndoChoice management approval, as long as the following conditions are met:
a. All return Products must be in saleable condition with at least 1 year shelf life remaining and have been purchased in the last 3 months.
6. All returns are subject to EndoChoice inspection. EndoChoice reserves the right to destroy merchandise deemed unfit for sale, whether or not accepted for credit or exchange.
b. No credit will be issued if the original package integrity is broken, damaged, or if the package is defaced with stickers or markers or if the Product is within one (1) year of expiration date.
c. Only full box quantities will be accepted. Credit will not be given for Products no longer listed on www.endochoice.com or for Products that have been replaced by updated versions with significant feature changes.
7. Returned Products deemed resalable will be valued at the original cost.
8. Returns must be shipped, prepaid to:
11810 Wills Road
Alpharetta, GA 30009
TECHNICAL ASSISTANCE: Unless otherwise expressly agreed in writing by EndoChoice, EndoChoice assumes no obligation or liability for any technical advice provided by EndoChoice with respect to the use of Products furnished to Buyer, or for any results occurring as a result of the application of such advice. Buyer shall have sole responsibility for selection and specification of the Products appropriate for the end use of such Products.
INDEMNIFICATION: To the maximum extent allowed by law, Buyer shall defend and indemnify EndoChoice and its employees and agents against all sums, costs, liabilities, losses, obligations, suits, actions, damages, penalties, fines, interest and other expenses (including investigation expenses and attorneys’ fees) that EndoChoice may incur or be obligated to pay as a result of: (a) Buyer’s negligence, use, ownership, maintenance, transfer, transportation or disposal of the Products; (b) Buyer’s violation or alleged violation of any federal, state, county or local laws or regulation, including without limitation, the laws and regulations governing product safety labeling, packaging and labor practices; or (c) Buyer’s breach of a Sales Contract, Order or these Sales Terms.
Limitation on EndoChoice’s Liability. NEITHER ENDOCHOICE NOR ITS AFFILIATES SHALL HAVE ANY LIABILITY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES FOR ANY REASON OR UNDER ANY THEORY OF LIABILITY WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOST PROFITS, BUSINESS INTERRUPTION, OR OTHER PECUNIARY LOSS, EVEN IF ENDOCHOICE OR ITS AFFILIATES HAVE BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. BUYER MAY NOT INSTITUTE ANY ACTION IN ANY FORM ARISING OUT OF ANY SALES CONTRACT, ORDER OR THESE SALES TERMS MORE THAN 12 MONTHS AFTER THE CAUSE OF ACTION HAS ARISEN. IN NO EVENT SHALL ENDOCHOICE’S LIABILITY UNDER ANY SALES CONTRACT OR ORDER EXCEED THE PURCHASE PRICE OF THE PRODUCTS GIVING RISE TO THE CLAIM.
FORCE MAJEURE: EndoChoice shall not be liable for any delay in or impairment of performance resulting in whole or in part from fire, floods or other catastrophes, acts of God, strikes, lockouts or labor disruption, wars, riots or embargo delays, government allocations or priorities, raw material market conditions, shortages of transportation equipment, fuel, labor or materials, inability to procure supplies or raw materials, severe weather conditions, or any other circumstance or cause beyond the reasonable control of EndoChoice (a “Force Majure Event”). In the event of the occurrence of a Force Majeure event, EndoChoice shall have the right, but not the obligation, to allocate Product among its customers and potential customers in its sole discretion.
CANCELLATION. Orders cannot be canceled or modified by Buyer except with the express written consent of EndoChoice.
TERMINATION. EndoChoice may terminate any Order or any part thereof as allowed by these terms. Upon such termination, Buyer agrees to waive all claims for damages, including without limitation, any loss of anticipated profits, and to accept as its sole remedy for termination the reasonable incremental costs of obtaining substitute Products of the same quantity and quality, provided such incremental costs do not exceed the Order price. Any claim for adjustment not asserted within 90 days from the date of such termination shall be deemed to have been waived by Buyer.
SETOFF; DEDUCTIONS: In no event is Buyer authorized to deduct any amounts from the amounts owed EndoChoice unless specifically authorized in writing by EndoChoice.
ASSIGNMENT. No part of any Order may be assigned by Buyer without prior written approval of EndoChoice. EndoChoice will be entitled to cancel any Order upon written notice to Buyer in the event Buyer assigns or attempts to assign such Order without EndoChoice’s prior written consent.
NOTICES. All notices must be in writing and will be deemed given only when sent by first class mail (return receipt requested), hand-delivered or sent by documented overnight delivery service to the party to whom the notice is directed, at its address indicated in the applicable Order or Sales Contract or by written notice.
ENTIRE AGREEMENT. These Sales Terms, together with the Order or Sales Contract, if any, comprise the complete and final agreement between EndoChoice and Buyer, and supersede all prior negotiations, proposals, representations, commitments, understandings or agreements between EndoChoice and Buyer, either written or oral, on its subject. Any other representations or warranties made by any person, including employees or other agents of EndoChoice, that are inconsistent with these Sales Terms shall be disregarded by Buyer and are not binding upon EndoChoice.
MODIFICATIONS. No Order nor these Sales Terms may be modified or amended except in writing signed by both EndoChoice and Buyer specifically referring to the applicable Order and/or these Sales Terms.
WAIVER. EndoChoice’s failure to insist on performance of any of the terms or conditions in these Sales Terms or to exercise any right or privilege, or EndoChoice’s waiver of any breach of these Sales Terms shall not waive any other terms, conditions or privileges, whether of the same or similar type.
SEVERABILITY. If any clause or provision in these Sales Terms is determined to be invalid, the remaining provisions of these Sales Terms will remain in full force and effect.
CHOICE OF LAW AND VENUE. All Orders shall be governed by and interpreted in accordance with the laws of the State of Georgia without giving effect to its choice of law provisions. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply. Manufacture, shipment and delivery are subject to any prohibition, restriction, priority allocation regulation or condition imposed by or on behalf of the United States of America or any other governmental body with appropriate jurisdiction that may prevent or interfere with fulfillment of any Order. Litigation brought to contest disputes arising under any Order or these Sales Terms shall be brought only in the state or federal courts of the State of Georgia sitting in Fulton County.
SURVIVAL: The terms of a Sales Contract or Order and these Sales Terms that by their nature are reasonably intended by the parties to survive its expiration or earlier termination, survive such expiration or termination.
ATTORNEYS FEES: If either party commences an action against the other to interpret or enforce the Order or these Sales Terms or as a result of a breach by the other party of the Order or these Sales Terms, the prevailing party shall be entitled to recover from the nonprevailing party reasonable attorneys’ fees, costs and expenses incurred by the prevailing party in connection with such action.
CUSTOMER SERVICE: All Orders are subject to these Sales Terms and to pricing confirmation, final acceptance and approval by EndoChoice’s Customer Care Department by phone at 1-888-682-3636 or through EndoChoice’s web store at www.endochoice.com. For convenience, Orders are also accepted via telefax at 1-866-567-8218.
11810 Wills Road
Alpharetta, GA 30009
Customer Service Department: Telephone: 1-888-682-3636
Customer Service Department: Telefax: 1-866-567-8218
Visit EndoChoice’s Web site: www.endochoice.com for additional information.
FUSE™ LIMITED WARRANTY:
(a) EndoChoice warrants that the Fuse™-related products and accessories manufactured by EndoChoice, including the Fuse™ endoscope(s), FuseBox™ and FuseCart™, shall be free from defects in material and workmanship for a period of two years from the date of shipment, all other EndoChoice products shall be free from defects in material and workmanship for a period of one year from the date of shipment (as applicable, the “Warranty Remedy Period”). All Fuse™ components manufactured by third parties are subject to the applicable manufacturer's warranties.
(b) If a nonconformity is discovered in a product during the Warranty Remedy Period under normal and proper use, then EndoChoice shall, at its option, either repair or replace any allegedly defective part or parts at its expense. It is a condition precedent to EndoChoice’s undertakings that written notice of such nonconformity is provided to EndoChoice promptly after such discovery, but in no event later than ten (10) business days thereafter, and within the applicable Warranty Remedy Period. Such notice shall describe the full extent and nature of the problem.
(c) EndoChoice shall have no obligation hereunder with respect to any product that (i) has been improperly stored, installed, operated or maintained or has otherwise been used in a manner contrary to the instructions for use; (ii) has been repaired or altered not in accordance with the instructions for use; (iii) has been subject to misuse, unauthorized use, negligence, accident (including fire, water, explosion, smoke, vandalism, etc.), moisture intrusion during cleaning, or any other cause beyond EndoChoice’s control; or (iv) has failed as a result of ordinary wear and tear. Without derogating from the above, the warranty for the products is void if at any time anyone other than EndoChoice’s authorized personnel removes a product casing and/or attempts to make or makes any internal changes, removals, attachments or additions to the product or components thereof.
(d) Defective parts replaced by EndoChoice shall be returned to the designated EndoChoice facility at EndoChoice’s expense. Title and risk of loss with respect to such parts shall pass to EndoChoice upon delivery to EndoChoice’s facility. Products or parts thereof may be returned for repair, replacement or adjustment only with EndoChoice’s prior written consent, or in accordance with the FuseCare™ Global Service Program terms. No credit allowances will be given or replacements shipped unless defects are verified by EndoChoice or EndoChoice’s authorized personnel.
(e) TO THE EXTENT ALLOWABLE BY APPLICABLE LAW, THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, GUARANTEES, PROMISES, OR REPRESENTATIONS OF QUALITY OR PERFORMANCE WHETHER WRITTEN, ORAL OR IMPLIED, AND ALL OTHER WARRANTIES INCLUDING WARRANTIES OF MERCHANTABILITY, SATISFACTORINESS, FITNESS FOR ANY PARTICULAR PURPOSE OR USAGE OF TRADE ARE HEREBY DISCLAIMED. THE REMEDIES STATED HEREIN CONSTITUTE THE EXCLUSIVE REMEDIES AND ENDOCHOICE’S ENTIRE LIABILITY FOR ANY BREACH OF WARRANTY.