Terms and Conditions

1. By ordering Products (as defined below) from MediBeacon Inc., its subsidiaries and/or affiliates, as may be applicable (collectively, “Company”), the purchaser(“Customer”) agrees to be bound by and accept the terms and conditions contained herein (these “Terms and Conditions”). Customer’s acceptance of or payment for Products will conclusively confirm Customer’s assent to these Terms and Conditions. No terms and conditions printed on any purchase order or other document submitted by Customer to Company in connection with the transactions contemplated by these Terms and Conditions shall be of any force or effect, and are hereby expressly rejected by Company unless Company’s acceptance thereof is in writing and specifically refers to each such additional or conflicting term. In the event of any conflict or inconsistency between these Terms and Conditions and any terms or conditions set forth in an agreement between the Customer and Company for the purchase and sale of Products (a “Purchase Agreement”) the terms and conditions set forth in the Purchase Agreement shall prevail. For purposes hereof, “Products” means any products sold by Company.
2. Payment and Delivery. Company reserves the right to verify Customer’s credit before shipping the Products to Customer. Customer will pay invoiced amounts within thirty (30) days of the date of the invoice. Prices are exclusive of all taxes, fees, duties, levies or other governmental assessments (“Taxes”), all of which may be separately billed to Customer. All Taxes related to Products shall be paid by Customer unless Customer provides Company with a valid tax exemption certificate acceptable to the relevant taxing authorities. If Customer fails to make any payment when due, Company will have the right to take whatever action it deems appropriate or necessary (including removing the Products). All payments shall be made by automated clearing house transfer, unless otherwise agreed to in writing by Company (e-mail being sufficient). Any amount not paid when due shall bear an interest charge, until paid, at the rate of one and one-half percent (1.5%) per month (18% per annum) or, if lesser, the maximum amount permitted by law. Payment of late charges shall not foreclose any other right that Company may have as a consequence of late payment. Customer shall reimburse Company for all reasonable costs (including reasonable attorneys’ fees) incurred in collecting late payments from Customer. Except as specifically provided in these Terms and Conditions, each Party shall be responsible for all costs and expenses incurred in connection with its performance hereunder. The MediBeacon® Preclinical MX, along with any preclinical accessories / disposables to be used with the Preclinical MX, shall be shipped CPT, destination, freight prepaid by Company and added to the invoice. All other MediBeacon Products shall be shipped FOB, destination, freight and insurance prepaid by Company and not added to the price of the Products for standard shipping.  Customer shall bear all expenses for expedited or special shipping.  No purchase order may be canceled or amended by Customer once Products have shipped.  Company may make delivery in installments, and each installment shall be deemed to be a separate sale. Company may render a separate invoice for each installment, which invoice shall be paid without regard to prior or subsequent installments. Company shall not be liable for any losses suffered by Customer as a result of any failure or delay in the delivery of any Products.
3. Use. Customer shall not use the TGFR™ System Products until a Customer representative has received training from a Company representative. Customer will use the TGFR System Products (a) in accordance with Company’s specifications and instructions, including but not limited to the TGFR Fact Sheet for Healthcare Providers, the Lumitrace® injection package insert, and the TGFR Instructions for Use available at https://ifu.medibeacon.com, and (b) only with accessories supplied by Company or intended for use with the Products. Customer shall provide a TGFR Patient Fact Sheet to each patient before dosing, also available at https://ifu.medibeacon.com/.
4. Software License and Updates. Customer is authorized to use any and all software programs embedded in and necessary to operate the Products and shall receive updates as such updates become generally available to other users of such Products without incurring additional licensing, upgrade, or maintenance fees.
5. Limited Warranty. Specific Products shall be covered by the limited warranty set forth at https://www.medibeacon.com/warranty/, as updated by the Company from time to time (the “Limited Warranty”).
6. DISCLAIMERS. EXCEPT AS SPECIFICALLY STATED IN THESE TERMS AND CONDITIONS AND THE LIMITED WARRANTY, THE PRODUCTS ARE PROVIDED BY COMPANY “AS-IS” WITHOUT WARRANTY OF ANY KIND. COMPANY EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE PRODUCTS WILL MEET CUSTOMER’S REQUIREMENTS OR WILL ACHIEVE ANY RESULT OR OUTCOME. COMPANY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS OR USE OF THE PRODUCTS, INCLUDING ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. COMPANY HAS NOT AUTHORIZED ANYONE TO MAKE ANY REPRESENTATION OR WARRANTY OTHER THAN AS PROVIDED ABOVE.
7. Compliance. Any discount, free goods or other reduction in price received as a result of the purchase of Products under these Terms and Conditions may involve a discount or other reduction in price under federal law at 42 U.S.C. §1320a-7B(b)(3)(A) and regulations issued thereunder. The prices reflected Company’s invoices incorporate discounts, as applicable, to Company’s list prices for the named products. Consistent with Company’s understanding of the requirements that apply to purchases of discounted products under 42 U.S.C. §1320a-7b(b)(3)(A) or 42 C.F.R. §1001.952(h), listing of these charged prices on invoices constitutes Company’s notice to Customer of the amount and value of all discounts given on these products. Any charged prices less than Company’s list prices are “discounts” within the meaning of any safe harbors or other applicable protections regarding discounted product pricing (including the statute and regulation cited above), whether or not the invoice or any other statement from the Company includes language indicating that a price is “discounted.” Accordingly, insofar as required by applicable law, Customer agrees that it shall fully and accurately report in accordance with all applicable laws and regulations (including the provisions of the discount safe harbor exception at 42 C.F.R. §1001.952(h)) and provide information upon request to Medicare, Medicaid and other federal and state health care programs on all discounts and price reductions under these Terms and Conditions, including, without limitation, disclosing and accurately reflecting where appropriate, and as appropriate, to the applicable reimbursement methodology, Customer’s use of Products at discounted rates.  If the services provided by Customer using the Products purchased hereunder require the reporting of costs on a cost report, then Customer must claim the benefit of the discount in the fiscal year in which the discount is earned or the following year and must fully and accurately report the discount in the applicable cost report.  If the services are reflected in a cost report or based on charges through the submission of a fee for service claim, Customer agrees to provide information documenting the discount upon request of the Secretary of the U.S. Department of Health and Human Services or by the appropriate state agency. Customer agrees that it is solely responsible for any such reporting, allocation(s) and/or classification(s).   Customer will comply with all applicable adverse event reporting requirements regarding its use of the Products, including requirements of the U.S. Food and Drug Administration at 21 C.F.R. Part 803, Subpart C.
8. Limitation of Liability. IN NO EVENT SHALL COMPANY BE LIABLE FOR REPROCUREMENT COSTS, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF USE, OR INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY NATURE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.  THESE INCLUDE DAMAGES RELATED TO, ARISING OUT OF, OR IN CONNECTION WITH THE SALE, DELIVERY, USE, LOSS OF USE, POSSESSION, TRANSPORTATION, DISPOSAL OR PERFORMANCE OF THE PRODUCTS, INCLUDING ALL ADDITIONS TO AND REPLACEMENTS OF THE PRODUCTS, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT SHALL COMPANY’S LIABILITY ARISING IN CONNECTION WITH ANY PRODUCT(S) SOLD OR TO BE SOLD HEREUNDER (WHETHER SUCH LIABILITY ARISES FROM A CLAIM UNDER CONTRACT, WARRANTY, TORT, OR OTHERWISE) EXCEED THE ACTUAL AMOUNT PAID BY CUSTOMER TO COMPANY FOR THE PRODUCT(S) INVOLVED IN SUCH CLAIM.
9. Miscellaneous. Any knowledge or information that Customer may disclose to Company shall be deemed not to be confidential or proprietary information of Customer and shall be acquired by Company free from any restriction. For example purposes only, Company reserves the right to use Customer’s feedback on the use of the Products to make improvements to its products or for regulatory purposes. As used in these Terms and Conditions, the word “including” is not limiting and means including, without limitation. Claims that may arise under these Terms and Conditions that cannot be settled amicably between the Parties will be tried by a court and not a jury. Customer expressly and unconditionally waives its right to a jury trial to settle any such claim. Waiver of any breach will not be deemed a waiver of the same provision in the future or a waiver of any other provision. Any provision of these Terms and Conditions which is void or unenforceable in any jurisdiction shall be severable and shall not invalidate the remaining provisions hereof.