US Terms & Conditions

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”) to the buyer ("Buyer"), of any products and/or services (the "Product(s)"), unless modified by a separate written agreement between Smiths Medical and Buyer. 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 any purchase order or other terms proposed by Buyer. The Buyer may not sell, distribute, convey, barter or otherwise transfer the Products purchased from Smiths Medical except to individual persons in the course of providing health care services 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 CPT Buyer’s facility (Incoterms 2020, as updated from time to time) with freight collect if applicable. 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. are as follows:

All product brands except SurgiVet SurgiVet brand only
Smiths Medical shall bear the cost for ground freight for orders shipped within the contiguous USA unless the order value is less than US$300, in which event Smiths Medical will charge Buyer freight. For shipments to points in Alaska and Hawaii, the freight terms are "Freight Prepay and ADD." 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 US$100. Orders of US$100 or less shall be subject to a service charge of US$25.

 

Subject to Product availability and lead times, Smiths Medical shall provide Customer with an estimated shipping date, but time for delivery shall not be of the essence. All shipping dates and/or delivery times provided by Smiths Medical are estimates only and Smiths Medical shall not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Products. 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/Buyer name
Bill to address
Complete delivery address
Purchase order number or Product Reorder number
Desired Delivery Date
Shipping preference
Item, quantity and unit price
Total price per line
Contact name, phone number, fax number or email address

 

Orders may be placed as follows:

Mail Orders Attention Customer Service:
5200 Upper Metro Place Ste 200, Dublin, OH 43017
Phone Orders 1-800-258-5361 (8:00AM–8:00PM) ET
Fax Orders Attention customer service – 1-800-621-2590
Email Orders info.asd@smiths-medical.com
EDI Orders Contact customer service: 1-800-258-5361 (8:00AM – 8:00PM EST)

 

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 attorneys’ 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. If a Product is returned with such consent, it shall thereupon become the property of Smiths Medical. Except for Warranty claims pursuant to Section 6 and as required by applicable law, under no circumstances will Smiths Medical accept returns of Products more than (a) 90 days from the date of invoice for Products other than hardware items, and (b) 45 days after date of invoice for hardware products including pumps, monitors, and fluid warmers. All products must be returned in saleable condition. Smiths Medical will not accept Products for return if they contain drugs, are damaged or used; custom manufactured for the Buyer; expired; not in their original packaging, opened; not in full case quantities; not originally purchased from Smiths Medical; and are otherwise not capable of being resold by Smiths Medical. All returns must be accompanied by a valid Return Authorization Number received from Smiths Medical’s returns department.

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. Smiths Medical accepts no responsibility for Product returned without prior authorization. Any unauthorized returned Product will be returned to Buyer at Buyer’s expense. 

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: (i) 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 (ii) 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.

NO WARRANTIES EXTEND TO ANY PRODUCTS NOT PURCHASED DIRECTLY FROM SMITHS MEDICAL OR FROM AN AUTHORIZED SMITHS MEDICAL DISTRIBUTOR. SMITHS MEDICAL’S WARRANTIES EXTEND ONLY TO THE ORIGINAL PURCHASER OF THE PRODUCTS. 

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 discounts and rebates (if any) provided by Smiths Medical to the Buyer are intended to be discounts or reductions in price described in and in accordance with 42 U.S.C. Section 1320a-7b(b)(3)(A) and 42 C.F.R. Section 1001.952(h). Buyer has an obligation to accurately record and may have an obligation to report all such reductions in purchase price to the Department of Health and Human Services (“DHHS”) or other federal agency, state agencies, or other payers, as applicable. Buyer 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. Buyer acknowledges that this section is sufficient to effectively advise Buyer of its obligations under the laws noted above.

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. COMPLIANCE WITH LAWS AND REGULATIONS. Buyer will comply with all federal, state and local laws, regulations and ordinances applicable to its business and activities and will indemnify Smiths Medical for any and all claims, damages, penalties, assessments and liabilities imposed on Smiths Medical relating to or resulting from Buyer’s failure to comply with such applicable laws, regulations and ordinances.

12. ASSIGNMENT. Any assignment of Buyer's rights or obligations hereunder will be void without Smiths Medical's prior 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 subject to the exclusive jurisdiction of 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. Both parties hereby knowingly and willingly waive their respective right to a trial by jury in any actions or proceedings under or relating to this agreement.

17. EXPORT AND IMPORT CONTROLS, ECONOMIC SANCTIONS; NOTIFICATION. Buyer acknowledges and agrees that the ultimate destination of the Products sold hereunder is in the United States of America, unless otherwise stated in writing. Buyer shall not authorize or permit its employees, distributors, customers, brokers, freight forwarders, and/or agents to transfer, export, re-export, or import any of the Products to any person without complying with applicable export, import, and economic sanctions laws and regulations of the United States, the European Union, or any other applicable jurisdictions. Buyer agrees to notify Smiths Medical immediately if Buyer or the end-user (if not the Buyer and known) is specifically or otherwise effectively listed on any relevant government restricted or prohibited parties lists, including the Denied Persons List, Entity List, Sectoral Sanctions Identifications List, or Specially Designated Nationals List, or if the export privileges of Buyer or any relevant third party whom Buyer will involve in this transaction (including its customer, if applicable), are otherwise denied, suspended or revoked in whole or in part by any relevant government authority. Buyer shall ensure that the Products are not used in relation to chemical, biological or nuclear weapons, or missiles capable of delivering such weapons. Buyer shall indemnify Smiths Medical against any and all direct, indirect and punitive damages, loss, costs (including attorney’s fees and costs) and other liability arising from claims resulting from Buyer’s breach of this clause.

18. SOFTWARE. All software provided hereunder is licensed to Buyer pursuant to the limited license contained in the applicable operators’ manual, the packaging inserts or other documents accompanying the Product or software, except where Buyer and Smiths Medical are parties to a separate software license agreement concerning such software. All Software is licensed, not sold.