Terms and Conditions
of sale to end users - USA Only
TERMS AND CONDITIONS OF SALE TO END USERS
USA ONLY
The following terms and conditions will apply to the sale by Smiths Medical ASD, Inc., Smiths Medical MD, Inc., and Smiths Medical PM, Inc (“Smiths Medical”) or any of them to the buyer ("Buyer"), of any products and/or services (the "Product(s)") provided by Smiths Medical, unless modified by a separate written agreement between Smiths Medical and Buyer, and Smiths Medical expressly conditions its sale of the Products on Buyer’s assent to these terms notwithstanding any differences, additions or conflicting terms contained in terms proposed by Buyer. The Buyer may not act as a distributor of the Products purchased hereunder without the express written agreement of Smiths Medical.
1 PRICES. Prices do not include, and Buyer will pay or reimburse Smiths Medical for, any and all taxes (other than Smiths Medical’s income taxes) and other governmental fees, assessments, duties and charges that are payable as a result of this transaction. Buyer shall be responsible for maintaining current state tax exemption certificates where applicable, and shall forward copies to Smiths Medical upon request.
2 SHIPMENTS, DELIVERY AND INSPECTION. Unless agreed otherwise in writing by Smiths Medical and Buyer, the Products shall be shipped FOB point of shipment from Smiths Medical. Delivery shall occur and title and risk of loss shall pass to Buyer upon Smiths Medical’s placement of the Products with carrier for shipment to Buyer. The shipping terms for Smiths Medical ASD, Inc, Smiths Medical MD, Inc and Smiths Medical PM, Inc vary as follows:
| Smiths Medical ASD,Inc. | Smiths Medical MD,Inc. | Smiths Medical PM,Inc. |
| Smiths Medical shall bear the cost for ground freight unless the order value is less than US$300, in which event Smiths Medical may charge Buyer freight and service. The service charge is referred to below. | Smiths Medical shall bear the cost for ground freight unless the order value is less than US$250, in which event Smiths Medical may charge Buyer the service charge referred to below. | Buyer will bear all costs, insurance premiums, freight and other expenses incurred after Smiths Medical has placed Products in the custody of the carrier. |
| Orders of US$300 or less shall be subject to a service charge of $50. | Orders of US$250 or less shall be subject to a service charge of $20. | Orders of US$100 or less shall be subject to a service charge of $25. |
Smiths Medical shall use its reasonable commercial efforts to deliver the Products to Buyer by the date set out in Buyer’s purchase order, but time for delivery shall not be of the essence. If Buyer's order is for multiple types of Products, such Products may be shipped in lots of similar Products, as reasonably determined by Smiths Medical, and each such lot will be paid for separately. No nonconformity or defect in any lot will constitute a breach of Buyer's entire purchase order, and any lots whose conformity and condition Buyer does not dispute will be paid for in accordance with these terms and conditions, regardless of any dispute concerning other shipments or undelivered Products.
Buyer will promptly inspect all Products delivered to it. Any claim against Smiths Medical under the Warranty in section 6 below or otherwise for shortages or for damages to or defects in the delivered Products that are observable in a reasonable visual inspection will be deemed waived unless the claim is made to Smiths Medical within 30 days after such delivery. Buyer shall request any proof of delivery within 30 days of delivery.
3 ORDERING PROCESS The following information must be included in every purchase order:
- Customer name
- Bill to address
- Complete delivery address
- Purchase order number or Product Reorder number
- Requested delivery date
- Shipping preference
- Item, quantity and unit price
- Total price per line
- Contact name, phone number, fax number or email address
- Special instructions
Orders may be placed as follows:
| Smiths Medical ASD, Inc. | Smiths Medical MD, Inc. | Smiths Medical PM, Inc. | |
| Mail Orders | Attention customer service: 5200 Upper Metro Place Ste 200, Dublin, OH 43017 | Attention customer service: 1265 Grey Fox, St Paul, MN 55112 | Attention customer service: N7 W22025 Johnson Drive, Waukesha WI 53186 |
| Phone Orders | 1-800-258-5361 (8:00AM – 8:00PM) EST |
1-800-426-2448 (7.00am to 5.30pm) CST |
1-800-558-2345 or 262542-3100 (7.00am to 5.00pm) CST |
| Fax Orders | Attention customer service - 1-800-621-2590 | Attention customer service - 1-651-628-7485 | Attention customer service - 1-262-542-0718 |
| Email Orders | Not Available | info@md.smiths-medical.com | Not Available |
4 PAYMENTS. If the full payment of the purchase price is not received when due as specified by Smiths Medical or, if not so specified, within 30 days after the shipment date, Smiths Medical reserves the right to charge interest on any unpaid balance at a rate of up to 1½% per month (or the highest rate permitted by applicable laws, if lower) from the due date. Buyer also agrees to pay all collection costs, expenses and reasonable attorney’s fees for collection of any amount due and unpaid. Smiths Medical may suspend or cancel deliveries of ordered Products if Buyer fails to pay when due any amount owed by it to Smiths Medical for any goods or services. Smiths Medical also reserves the right to require from Buyer, at any time, satisfactory assurance of performance of Buyer's payment obligations to Smiths Medical, and refusal or failure promptly to furnish such assurance will entitle Smiths Medical to suspend or cancel further deliveries to Buyer.
5 CANCELLATIONS AND RETURNS. Any order by Buyer may be cancelled or changed only with the consent of Smiths Medical. Prior consent from Smiths Medical is required before a return will be accepted. Smiths Medical accepts no responsibility for Product returned without prior authorization. Product must be returned in saleable condition within the following time periods:
| Smiths Medical ASD,Inc. | Smiths Medical MD,Inc. | Smiths Medical PM,Inc. |
| 120 days from the date of invoice | 30 days from the date of invoice | 30 days from the date of invoice |
Products will not be accepted for return if they are damaged or used; custom manufactured for the Buyer; not in their original packaging (unopened); not purchased from Smiths Medical or are otherwise not capable of being resold by Smiths Medical.
When Products are authorized to be returned for any reason other than for breach of warranty, the amount of credit will be subject to a minimum restocking charge of 20%. Returned Product must be sent freight prepaid to the appropriate address indicated by Smiths Medical’s returns department. Any unauthorized returned Product will be returned at Buyer’s expense. If a Product is returned with such consent, it shall thereupon become the property of Smiths Medical. All returns must be accompanied by a valid Return Authorization Number received from Smiths Medical’s returns department.
6 WARRANTY, INSPECTION AND CLAIMS. Smiths Medical warrants exclusively to Buyer that each Product sold hereunder will be free from defects in material and workmanship under normal use, if used in accordance with its labeling for the period specified in the operators manual, the packaging inserts or other documents accompanying the Product. Smiths Medical will have the right at its expense to inspect and have returned any Product claimed by Buyer to violate this "Warranty." Smiths Medical's sole obligation and Buyer's exclusive remedy for any breach of the Warranty will be the repair or replacement, at Smiths Medical's option, of the defective Product.
Any replacement or repaired Product will be covered by the Warranty only for the remainder of the original warranty period. If Smiths Medical determines that such repair or replacement is not economical or feasible or such remedy fails of its essential purpose, Buyer's exclusive alternate remedy and Smiths Medical's sole obligation for any such breach will be the return to Buyer of the purchase price paid to Smiths Medical for the Product, in which case Smiths Medical may repossess the Product. The Warranty will apply only if: the delivered Product is not altered or damaged and is properly installed, stored, handled, maintained and used in accordance with the Product's normal usage and any Smiths Medical published instructions; and Buyer notifies Smiths Medical of the defect in writing not more than one year after its delivery to Buyer and not more than 30 days after Buyer first learns of the defect.
EXCEPT FOR THIS EXPRESS WARRANTY AND SMITHS MEDICAL'S STATUTORY WARRANTY OF GOOD TITLE, SMITHS MEDICAL MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING THE PRODUCTS COVERED HEREBY INCLUDING (WITHOUT LIMITATION) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. NO EMPLOYEE, AGENT OR REPRESENTATIVE OF SMITHS MEDICAL IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY ON BEHALF OF SMITHS MEDICAL EXCEPT TO THE EXTENT SPECIFICALLY STATED HEREIN.
7 LIMITS ON LIABILITY. IN NO EVENT, WHETHER BASED ON BREACH OF WARRANTY OR CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR ANY OTHER LEGAL THEORY, WILL SMITHS MEDICAL BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR COST OF "COVER" ARISING OUT OF THE SELECTION, ORDERING, PURCHASE, USE, RESALE OR DISTRIBUTION OF THE PRODUCTS COVERED HEREBY, OR OTHERWISE, EVEN IF SMITHS MEDICAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN PARTICULAR SMITHS MEDICAL WILL NOT BE LIABLE FOR LOSS OF PROFITS, SAVINGS OR REVENUE; DAMAGE TO REPUTATION; LOSS OF USE OF A PRODUCT OR ANY ASSOCIATED EQUIPMENT; COST OF CAPITAL; COST OF ANY SUBSTITUTE GOODS, EQUIPMENT, FACILITIES OR SERVICES; DOWNTIME; AND THE CLAIMS OF THIRD PARTIES INCLUDING BUYER'S CUSTOMERS.
8 FORCE MAJEURE AND SHORTAGES. Smiths Medical will not be liable for loss or damage of any kind resulting from any delay in delivery or failure to supply ordered Products or otherwise carry out its obligations under this agreement due to causes beyond its control, and no such event will relieve Buyer of its obligations to make payments for other deliveries under this agreement. Smiths Medical reserves the right, in its sole judgment and without liability to Buyer, reasonably to allocate its available production capacity and Product inventories as may be necessary or equitable in the event of any shortages of production capacity or Products at any time.
9 DISCOUNTS AND REBATES. The dollar value of rebates (if any) provided by Smiths Medical to the Buyer are intended to be discounts or reductions in price in accordance with 42 U.S.C. Section 1320a-7b(b)(3)(A) and 42 C.F.R. Section 1001.952(h). Customer has an obligation to report all such discounts and reductions in purchase price to the Department of Health and Human Services (“DHHS”) or other federal agency, state agencies, or other payers, as applicable. Customer may also be required to submit other information required by 42 C.F.R. Section 1001.952(h) to DHHS or other federal agencies, state agencies, or other payers, as applicable, upon request.
10 PRESCRIPTION LICENSES. Buyer will maintain all licenses and consents required for the purchase of prescription products, and upon reasonable notice Buyer shall furnish copies of such licenses to Smiths Medical.
11 EXPORT. Buyer will only sell Products into the territory or territories agreed by the parties. Buyer may not export Products without the express written agreement of Smiths Medical, and it may not sell in the US where it has been expressly agreed that the Products are sold for export only. Where the Products are to be exported, Buyer shall furnish documentary proof of export upon Smiths Medical’s reasonable request.
All exports and re-exports of the Products are subject to US export control laws and regulations, including without limitation the US Export Administration Act and its associated regulations, and may be subject to export or import regulations in countries other than the United States. Accordingly, Buyer and its employees shall not export or re-export the Products or import the products into the agreed territories without first obtaining an appropriate license, exemption or similar authorization in accordance with all applicable US export control laws or regulations.
Buyer agrees that it will not directly or indirectly export or re-export, or otherwise transmit or retransmit, the Products or related technical data (or any part thereof) or any service that is the directly related to the Products, to any country which such export, re-export, transmission or retransmission is restricted by any applicable US export control laws or regulations without the prior written consent, if required, of the Bureau of Export Administration of the US Department of Commerce or such other government entity as may have jurisdiction over such export, re-export or transmission.
12 ASSIGNMENT. Any assignment of Buyer's rights or obligations hereunder will be void without Smiths Medical's written consent
13 MODIFICATION. These terms and conditions may be amended or terminated at any time by Smiths Medical. Further, Smiths Medical reserves the right to modify or discontinue any of its Products at any time.
14 THIRD PARTY BENEFICIARIES. Nothing in these terms and conditions is intended to benefit any person other than the Buyer and Smiths Medical.
15 CODE OF CORPORATE RESPONSIBILITY. Smiths Medical is committed to conducting its business ethically and lawfully. To that end Smiths Medical, through its ultimate parent company, Smiths Group plc, maintains a Code of Corporate Responsibility and Business Ethics and mechanisms for reporting unethical or unlawful conduct. Smiths Medical expects that Buyer also will conduct its business ethically and lawfully. If Buyer has cause to believe that Smiths Medical or any employee or agent of Smiths Medical has behaved unethically or unlawfully under, or in connection with these terms and conditions Buyer is encouraged to report such behavior to Smiths Medical or to Smiths Group plc. Smiths Group plc’s Code of Corporate Responsibility and Business Ethics and mechanisms for making such reports are available on www.smiths-group.com
16 GOVERNING LAW AND JURISDICTION. This agreement, and any claims or disputes related to this agreement, will be governed by the laws of the state in which the Smiths Medical facility to which the Buyer purchase order is addressed or sent. Such laws shall exclude conflict of law provisions and, with respect to a U.S. state, the U.N. Convention on Contracts for the International Sale of Goods. All actions or proceedings under or relating to this agreement will be resolved in a state, federal or comparable court located in that jurisdiction; provided, however, that in Smiths Medical's discretion such an action may be heard in some other place designated by it if necessary to acquire jurisdiction over third persons so that the dispute can be resolved in one action. Buyer hereby agrees to appear in any such action, consents to the jurisdiction of such courts and waives any objections it might have as to venue in any such court.
