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., (“ICU Medical”) to the buyer ("Buyer"), of any products and/or services (the "Product(s)"), unless modified by a separate written agreement between ICU Medical and Buyer. ICU 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 ICU Medical except to individual persons in the course of providing health care services without the express written agreement of ICU Medical. 

1 PRICES. Prices do not include, and Buyer will pay or reimburse ICU Medical for, any and all taxes (other than ICU 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 ICU Medical upon request.

2 SHIPMENTS, DELIVERY AND INSPECTION. Unless agreed otherwise in writing by ICU Medical and Buyer, the Products shall be shipped CPT Buyer’s facility (Incoterms 2000, 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 ICU Medical’s placement of the Products with carrier for shipment to Buyer. The shipping terms for ICU Medical ASD, Inc. are as follows:

All product brands except SurgiVet	SurgiVet brand only
ICU 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 ICU 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 ICU 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$50.	Orders of US$100 or less shall be subject to a service charge of US$25.

ICU 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 ICU 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 ICU 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 ICU 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
• Date by which the product is required 
• 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:

	ICU Medical ASD, Inc.
Mail Orders	Attention Customer Service: 5200 Upper Metro Place Ste 200, Dublin, OH 43017
Phone Orders	1-800-258-5361 (8:00AM–8:00PM) EST
Fax Orders	1-800-621-2590

4 PAYMENTS. If the full payment of the purchase price is not received when due as specified by ICU Medical or, if not so specified, within 30 days after the shipment date, ICU 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. ICU Medical may suspend or cancel deliveries of ordered Products if Buyer fails to pay when due any amount owed by it to ICU Medical for any goods or services. ICU Medical also reserves the right to require from Buyer, at any time, satisfactory assurance of performance of Buyer's payment obligations to ICU Medical, and refusal or failure promptly to furnish such assurance will entitle ICU 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 ICU Medical. Prior consent from ICU Medical is required before a return will be accepted. If a Product is returned with such consent, it shall thereupon become the property of ICU Medical. Products other than hardware items have a 90-day return period from the date of invoice. Hardware products including pumps, monitors, and fluid warmers have a 45-day return period. All products must be returned in saleable condition. ICU Medical will accept Products for return only if they do not contain drugs; are not damaged or used; not custom manufactured for the Buyer; not expired; in their original packaging, unopened; in full case quantities; originally purchased from ICU Medical; and are otherwise capable of being resold by ICU Medical. All returns must be accompanied by a valid Return Authorization Number received from ICU 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 ICU Medical’s returns department. ICU 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. ICU 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. ICU Medical will have the right at its expense to inspect and have returned any Product claimed by Buyer to violate this "Warranty." ICU Medical's sole obligation and Buyer's exclusive remedy for any breach of the Warranty will be the repair or replacement, at ICU 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 ICU 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 ICU Medical's sole obligation for any such breach will be the return to Buyer of the purchase price paid to ICU Medical for the Product, in which case ICU 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 ICU Medical published instructions; and (ii) Buyer notifies ICU 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 ICU Medical'S STATUTORY WARRANTY OF GOOD TITLE, ICU 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 ICU Medical IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY ON BEHALF OF ICU Medical EXCEPT TO THE EXTENT SPECIFICALLY STATED HEREIN.

NO WARRANTIES EXTEND TO ANY PRODUCTS NOT PURCHASED DIRECTLY FROM ICU Medical OR FROM AN AUTHORIZED ICU Medical DISTRIBUTOR. ICU 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 ICU 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 ICU Medical HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN PARTICULAR ICU 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. ICU 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. ICU 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 ICU 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 ICU 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 ICU Medical for any and all claims, damages, penalties, assessments and liabilities imposed on ICU 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 ICU Medical's prior written consent.

13 MODIFICATION. These terms and conditions may be amended or terminated at any time by ICU Medical. Further, ICU 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 ICU Medical.

15 CODE OF CORPORATE RESPONSIBILITY. ICU Medical is committed to conducting its business ethically and lawfully. To that end ICU 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. ICU Medical expects that Buyer also will conduct its business ethically and lawfully. If Buyer has cause to believe that ICU Medical or any employee or agent of ICU Medical has behaved unethically or unlawfully under, or in connection with these terms and conditions Buyer is encouraged to report such behavior to ICU 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 ICU 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 ICU 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.