Terms & Conditions of Sale
ALL SALES OF [MINERVA DISPOSALBE HAND PIECE, MINERVA CONTROLLER, MINERVA CONTROLLER ACCESSORIES] (“GOODS”) BY MINERVA SURGICAL, INC. (“MINERVA SURGICAL”) TO THE BUYER (“BUYER”) AND BUYER’S USE THEREOF ARE EXPRESSLY CONDITIONED ON BUYER’S ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS. MINERVA SURGICAL WILL NOT BE BOUND BY ANY TERMS OF BUYER’S PURCHASE ORDER THAT ARE INCONSISTENT WITH THE TERMS HEREIN. THESE TERMS MAY ONLY BE AMENDED OR WAIVED BY A WRITING SIGNED BY MINERVA SURGICAL.
Payment Terms. Minerva Surgical reserves the right to change the prices and specifications of Goods at any time without notice. Unless otherwise stated, terms of payment are net 30 days from date of invoice. Goods shall be invoiced as shipments are made. If shipments are delayed by Minerva Surgical, payments become due from the date Minerva Surgical makes shipment. Buyer agrees to pay interest on all past-due invoices at Minerva Surgical’s standard late payment rate then in effect or the maximum amount allowed by law, whichever
is less.
Taxes. Prices do not include any state or local property, sales, use or privilege taxes, or any export or import duties or taxes or the like. Buyer agrees to pay or reimburse any such taxes and duties required to be paid in respect of this transaction (excluding taxes based on the net income of Minerva Surgical). In the event Minerva Surgical is required to prepay any such tax or duty, Buyer will reimburse Minerva Surgical.
Shipment. All Goods shall be shipped F.O.B. Minerva Surgical’s plant. Unless otherwise specified on the face of Minerva Surgical’s quote or order acknowledgement, shipment may be made by Minerva Surgical by any reasonable method it may choose. Freight, insurance and other shipping charges will be added to the shipment invoice and borne by Buyer. All shipment dates are approximate. All Goods will be packed in Seller’s standard packaging. Once Buyer’s purchase orders are accepted by Minerva Surgical, shipments cannot be cancelled or rescheduled. Buyer shall be deemed to accept the Goods upon delivery.
Loss, Damage or Delay. Minerva Surgical shall not be liable for loss, damage or delay resulting from causes beyond its reasonable control, including but not limited to acts of God, fire, terrorism, war, industry allocation or inability to obtain necessary labor or materials or break down of manufacturing facilities. In the event of delay due to any such cause, shipment date shall be postponed to such time as may be reasonably necessary.
Security; Risk of Loss. The Goods covered hereby shall be subject to a security interest of Minerva Surgical until fully paid for in collected funds and Buyer agrees until such full payment is made that Minerva Surgical may take all action which may be necessary to perfect that security interest, including the filing of financing statements. Risk of loss and title of the Goods shall pass to Buyer upon delivery to carrier F.O.B. point of shipment. Claims for loss or damage in transit should be made promptly and directly to the carrier, and Minerva Surgical will have no liability for such loss or damage. Any claims for shortages or errors in shipment caused by packing error and not the carrier must be filed with Minerva Surgical within 30 days of receipt of shipment.
Patents, Trademarks, etc. No right to any trademark, trade name, patent, license, approval or copyrighted material is granted to Buyer by Minerva Surgical except as noted on the face of Minerva Surgical’s quote or order acknowledgement. Minerva Surgical shall have no liability for infringement of any patents, trademarks, trade names, copyrights, trade dress, trade secrets, other industrial or intellectual property rights, or similar rights (hereinafter collectively referred to as the “Intellectual Property Rights”). Minerva Surgical makes no representation or warranty that the Goods sold hereunder do not infringe the Intellectual Property Rights of third parties. If any Goods are subject to a claim that they infringe the Intellectual Property Rights of a third party, Minerva Surgical may, in its sole discretion, procure for Buyer the right to continue using those Goods, replace or modify the Goods so as to make them non-infringing, or offer to accept return of the Goods and return the purchase price. THE FOREGOING PROVISIONS OF THIS PARAGRAPH SHALL CONSTITUTE MINERVA SURGICAL’S SOLE AND EXCLUSIVE LIABILITY AND BUYER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
Warranties. Minerva Surgical, Inc., warrants the original purchase of the Goods shall be free of defects in material and workmanship when used as intended under normal surgical conditions and in conformance with their instructions for use and maintenance instructions during such Goods’ shelf life as indicated on its label or if no shelf life is indicated, the longer of either a period of one year or the minimum period required by law. The obligation of Minerva Surgical, Inc. under this warranty shall be limited to the repair or replacement of the Goods or component that failed to conform, at no charge, at the option of Minerva Surgical, Inc. within one year from date of purchase, if examination shall disclose to the satisfaction of Minerva Surgical, Inc., that the Goods do not meet this warranty.
This warranty is made in lieu of all other warranties expressed or implied with respect to the Goods or accompanying written materials. Minerva Surgical expressly excludes the warranties of merchantability and fitness for use and all other obligations and liabilities. Minerva Surgical, Inc. neither assumes nor authorizes any other person to assume for it any other liability in connection with the sale of the Goods. This warranty shall not apply to Goods or any other part thereof, which has been subject to accident, negligence, alteration, abuse, or misuse, makes no warranty whatsoever with regard to accessories or parts used in conjunction with the Goods and not supplied and manufactured by Minerva Surgical, Inc. The term “original purchaser”, as used in the warranty shall be deemed to mean that person or organization and its employees, if applicable, to whom the Goods were sold by Minerva Surgical, Inc. This warranty may not be assigned or transferred in any manner.
Should the Goods need to be returned, Buyer will contact the Minerva Surgical Customer Service Department or an Authorized Representative for instructions and a Return Good Authorization Number (RGA #). Carefully clean and repackage the Goods appropriately and return it, adequately insured and pursuant to provided instructions, to Minerva Surgical, Inc. or an Authorized Representative. Please include a note describing the defect(s), receipt showing proof of purchase, as well as a return address.
Limitation of Liability. Minerva Surgical shall at its election and expense replace any Goods or any part thereof which does not comply with one or more of the foregoing warranties, provided that such Goods or part was used in a proper manner, under normal conditions and in accordance with such directions for use as may be furnished by Minerva Surgical. The foregoing is Buyer’s sole remedy, and Minerva Surgical’s sole liability, for breach of the foregoing warranties. WHETHER OR NOT THE GOODS HAVE BEEN DELIVERED BY MINERVA SURGICAL, IN NO EVENT SHALL MINERVA SURGICAL’S LIABILITY EXCEED THE PURCHASE PRICE FOR THE GOODS. MINERVA SURGICAL SHALL UNDER NO CIRCUMSTANCES BE LIABLE TO BUYER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES ARISING OUT OF THIS TRANSACTION OR THE USE OR MISUSE OF THE GOODS OR ANY PART THEREOF, WHETHER BASED UPON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE OR ANY OTHER LEGAL THEORY. WITHOUT LIMITATION, MINERVA SURGICAL SHALL HAVE NO LIABILITY TO BUYER FOR ANY DAMAGE TO THIRD PARTIES ARISING OUT OF THE USE OR OPERATION OF THE GOODS. THE REMEDIES OF BUYER ARISING OUT OF THIS TRANSACTION OR WITH RESPECT TO THE GOODS COVERED HEREBY SHALL BE LIMITED TO THOSE CONTAINED IN THESE TERMS AND CONDITIONS OF SALE EXCLUSIVELY AND IN LIEU OF ANY AND ALL OTHER REMEDIES, WHETHER BASED UPON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE OR ANY OTHER LEGAL THEORY. Buyer waives all remedies unless a claim is made within the applicable warranty period.
Confidential Information. Buyer acknowledges that technical information contained in plans, drawings, specifications and other documents disclosed and/or furnished to it by Minerva Surgical are the sole and exclusive property of Minerva Surgical, and Buyer shall not use or disclose such information except as expressly permitted hereunder.
Governing Law. The transactions between Minerva Surgical and Buyer shall be governed by the laws of the State of California without regard to its conflicts of laws principles and without regard to the U.N. Convention on Contracts for the International Sale of Goods.
Tribunal. Minerva Surgical, at its sole option, may elect to have submitted to binding arbitration pursuant to the rules of the American Arbitration Association any disputes with Buyer relating hereto. Buyer agrees that the exclusive venue for any arbitration or litigation relating hereto shall be in Santa Clara County, California. Any federal or state court or arbitration panel sitting in Santa Clara County, California shall have personal jurisdiction over Buyer in connection with any litigation or arbitration relating hereto and Buyer consents to venue in such court or tribunal.
Controlling Terms and Conditions. Buyer acknowledges that these terms and conditions shall be the only terms and conditions applicable to all sales of Goods by Minerva Surgical to Buyer. All shipments shall be deemed to have been made pursuant to these terms and conditions of sale. Other terms or additional terms on the Buyer’s business forms or otherwise are not acceptable and not binding on Minerva Surgical. All quotes and acknowledgments or confirmations of Buyer’s purchase order are expressly made conditional on assent to
the terms hereof as the exclusive terms of agreement between the parties. Buyer shall be deemed to assent to the provisions hereof if no objection to these terms is received by Minerva Surgical within ten days of receipt of these terms and conditions by Buyer or if any shipments of Goods are accepted by Buyer hereunder or Buyer makes any payment for Goods hereunder without objection to these terms and conditions. A quote by Minerva Surgical is not a binding offer and shall not form a contract between Buyer and Minerva Surgical unless and
until Minerva Surgical sends to Buyer written acknowledgment and acceptance of Buyer’s purchase order, and Minerva Surgical shall have no liability to Buyer with respect to purchase orders that are not accepted.
Export Control. Buyer acknowledges that the Goods covered hereby may be subject to export control laws and regulations of the United States of America. Minerva Surgical will have no obligation to sell or deliver the Goods covered hereby until Buyer has obtained all required export authorizations. Buyer agrees that it will not use distribute, transfer, or transmit the Goods covered hereby except in compliance with United States laws and regulations and the laws and regulations of any other jurisdiction.
Limitations on Use. The Goods are supplied hereunder for use by Buyer and its affiliates and except as explicitly permitted pursuant to a distribution agreement between the parties, shall not be resold. Buyer will use the Goods in compliance with all applicable laws and regulations.
Buyer Indemnification. Buyer shall defend, indemnify, and hold harmless Minerva Surgical from and against any liability, damage, loss, or expense (including reasonable attorney’s fees and expenses of litigation) in connection with nay claims, suits, or proceedings arising out of or relating to the use or exploitation of the Goods, unless proximately caused by the sole gross negligence or willful misconduct of Minerva Surgical.
Assignment. Neither party may assign or delegate the contract formed by this acceptance of Buyer’s purchase order without the prior written consent of the other party, provided that Minerva Surgical may assign this contract to an entity that acquires all or substantially all of the business or assets of Minerva Surgical to which this Agreement pertains, whether by merger, reorganization, consolidation, change of control, acquisition, sale, or otherwise.
Miscellaneous. The terms and conditions set forth herein constitute the entire agreement between Minerva Surgical and Buyer with respect to the subject matter hereof. If any provision contained in these terms and conditions is or becomes invalid, illegal, or unenforceable in whole or in part, such invalidity, illegality or unenforceability shall not affect the remaining provisions and portions of these terms and conditions. The waiver by Minerva Surgical of any default by Buyer with respect to these terms and conditions will not waive subsequent defaults by Buyer of the same or a different kind.