Terms and Conditions (Invoices) | Nalu Medical

TERMS AND CONDITIONS FOR SALE OF PRODUCT MKT-000039 Rev C

01. General

ALL SALES MADE BY NALU MEDICAL, INC. (“NALU”) TO THE BUYER (“BUYER”) FOR ITEMS LISTED ON THE BILLING FORM, PURCHASE ORDER, AND/OR INVOICE (THE “PRODUCTS”) ARE EXPRESSLY CONDITIONED ON BUYER’S ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS (THESE “TERMS AND CONDITIONS”), WHICH ACCEPTANCE MAY BE MADE BY WRITTEN EXECUTION OF THESE TERMS AND CONDITIONS OR BY RECEIPT BY BUYER OF DELIVERY OF ANY PRODUCTS. THESE TERMS AND CONDITIONS, TOGETHER WITH ALL EXHIBITS ATTACHED HERETO AND APPLICABLE PRICING PROPOSALS, CONSTITUTE THE ENTIRE AGREEMENT BETWEEN NALU AND BUYER AND SUPERSEDE ALL PREVIOUS NEGOTIATIONS, DISCUSSIONS AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF. NALU WILL NOT BE BOUND BY ANY TERMS OF BUYER’S PURCHASE ORDER OR OTHER DOCUMENT THAT ARE ADDITIONAL OR INCONSISTENT WITH THESE TERMS AND CONDITIONS, AND ALL SUCH TERMS SHALL BE EXCLUDED. THESE TERMS AND CONDITIONS MAY ONLY BE AMENDED OR WAIVED BY A WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF NALU.

02. Order and Acceptance

No order shall be binding upon NALU until accepted by NALU in writing, and NALU shall have no liability to Buyer with respect to purchase orders that are not accepted. Buyer shall submit purchase orders to NALU in accordance with NALU’s then-current lead times. After acceptance by NALU, Buyer’s purchase order may not be canceled or reduced in any amount by Buyer without NALU’s written consent. Any other changes to a purchase order requested by Buyer will require the prior written approval of NALU, which approval may be subject to price adjustments as determined by NALU on a case-by-case basis.

03. Delivery, Shipping, Risk of Loss

NALU will use reasonable efforts to deliver Products at the times specified in NALU’s acceptance of Buyer’s purchase order, provided, however, that all delivery dates are estimates only and deliveries may be in installments. All Products shipped hereunder will be marked for shipment to Buyer’s address specified in Buyer’s purchase order and shipped FOB from NALU’s U.S.-based shipping point (“Delivery Point”), at which time risk of loss from any casualty and title pass to Buyer. If Buyer advises NALU in writing that Buyer will arrange and take responsibility for shipment of Products from NALU’s U.S.-based shipping point, NALU will arrange for Buyer’s freight forwarder and/or carrier(s) to transport the Products to Buyer’s specified location. In all cases of damage and/or loss to Products in transit, Buyer will be responsible for making claim(s) against the carrier; provided, however, that NALU will provide reasonable assistance with such damage and/or loss claims. Loss of or damage to Products shipped will not relieve Buyer of any obligations for payment or other obligations under these Terms and Conditions. Unless otherwise agreed by NALU in writing, shipping, freight, handling, insurance, and related costs are the sole responsibility of Buyer and will be “pre-paid and added” or otherwise invoiced to Buyer. Expedited purchase orders received and accepted by NALU by 3:00 P.M. Pacific Time will be shipped on the same business day, subject to Product availability.

04. Price

Prices for Products shall be as set forth in the applicable Pricing Proposal agreed upon in writing (“Purchase Price”). NALU has the right to revise Purchase Prices upon advance written notice to Buyer. Price changes will apply to all purchase orders received after the effective date of the price revision.

05. Disclosure of Discounts

In accordance with the discount provisions of the federal anti-kickback statute, 42 U.S.C. § 1320a-7b(b), and the discount safe harbor regulations at 42 C.F.R. § 1001.952(h), Buyer shall fully and accurately account for, and report on all applicable cost reports, the total value of any discount, rebate or other compensation paid in a manner that complies with all applicable federal, state and local laws and regulations which establish “Safe Harbor” for discounts as applicable, and as appropriate, under any applicable payer reimbursement requirements and provide information upon request to Medicare, Medicaid and other federal health care programs on all discounts and price reductions received from NALU. Buyer shall make written request to NALU in the event Buyer requires additional information from NALU in order to meet its reporting requirements. Buyer acknowledges that agreement to such reporting requirement was a condition precedent to NALU’s agreement to provide products and that NALU would not have entered into this Agreement had Buyer not agreed to comply with such obligations.

06. No Charge Product

If a Product is provided to Buyer by NALU at no charge for evaluation or demonstration purposes, Buyer agrees to not bill any third party for the no-charge product, and if covered under a government reimbursement program, Buyer will not seek reimbursement under the billing procedures applicable to the payment system.

07. Payment Terms

Provided that Buyer meets NALU’s credit requirements, payment terms shall be net thirty (30) days after the date of NALU’s invoice. Buyer will make payments in United States dollars by check or wire transfer to an account designated by NALU. Any invoiced amount not paid when due shall be subject to a service charge equal to the lesser of three percent (3%) per month or the maximum rate permitted by law. If Buyer fails to fulfill the terms of payment or does not meet NALU’s continuing credit requirements, NALU will have the option to decline to accept orders or fulfill pending orders, delay any shipment until payment for past orders is received by NALU, declare all outstanding sums immediately due and payable, and/or condition any future orders on terms specified by NALU.

08. Taxes

In addition to the Purchase Price, Buyer will be responsible for payment of all taxes (including without limitation, withholding, excise, sales, value-added, and use taxes) and customs duties paid or payable, however designated, levied, or based, but exclusive of taxes based on NALU’s net income, unless Buyer provides a certificate of tax exemption to NALU.

09. Substitutions and Modifications

NALU will have the right to make substitutions and modifications in the specifications or composition of Products or protocols related to Products sold by NALU, provided that such substitutions or modifications will not materially affect overall Product performance.

10. Ownership, No Implied License

NALU retains all proprietary rights in and to all designs, engineering details, and other technology and information pertaining to the Products. The sale of Products ordered hereunder does not grant to, convey, or confer upon Buyer or Buyer’s customers, or upon anyone claiming under Buyer, a license, express or implied, under any patent right, copyright, or other intellectual property right of NALU covering or relating to any use other than is consistent with the labeling or instructions for use thereof.

11. Software

NALU hereby grants a nonexclusive, nontransferable, limited license to use any software included within the Products, but only in conjunction with Buyer’s internal business use of the Products purchased hereunder. Purchaser receives no title or ownership rights to the software.

12. Product Training

As necessary to fulfill applicable regulatory requirements or otherwise assure the safe and effective use of the product, NALU will provide training and education to Buyer. Such training and education will be provided at no additional charge at Buyer’s location or other appropriate venue permitted by applicable law.

13. Confidentiality

Buyer shall treat as confidential and proprietary, and shall not disclose these Terms and Conditions, pricing, discounts and/or any technical information provided by NALU to Buyer to any third party or otherwise make such terms public, unless such party receives the prior written approval of NALU or such disclosure is required by law.

14. Limited Warranty

For Products purchased hereunder, NALU makes to Buyer the applicable limited warranty as set forth in Exhibit A (“Limited Warranty”). This Limited Warranty is contingent upon proper use of the Products.

15. Limited Remedy

Buyer agrees that to obtain any replacement or refund of a Product for nonconformance with the Limited Warranty, Buyer must promptly notify NALU in writing upon discovery of nonconformance.

16. Disclaimer of Warranties

EXCEPT FOR THE LIMITED WARRANTY STATED IN SECTION 14, THE PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND NALU SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

17. Mutual Indemnification

Each party shall defend, indemnify, and hold harmless the other party from and against any liability, damage, loss, or expense.

18. Insurance

Buyer shall procure and maintain in force general liability insurance including property damage, bodily injury, products liability and contractual liability, in the minimum amount of $1,000,000 per occurrence and $3,000,000 in the aggregate.

19. LIMITATION OF LIABILITY

NALU’S LIABILITY SHALL NOT EXCEED TWO (2) TIMES THE PURCHASE PRICE PAID BY BUYER FOR THE PRODUCTS GIVING RISE TO SUCH LIABILITY.

20. Security Interest

NALU reserves a purchase money security interest in Products sold and the proceeds thereof, in the amount of the Purchase Price.

21. Return Product Policy

Authorization to return Products is required for all returns.

22. Term

These Terms and Conditions apply upon written agreement to a Pricing Proposal.

23. Compliance with Laws

Buyer shall comply with all federal, state, and local laws.

24. Miscellaneous

These Terms and Conditions contain the entire agreement between the parties on the subject of the sale of the Products.

EXHIBIT A

LIMITED WARRANTY – NON-IMPLANTABLE COMPONENTS

Nalu Medical™, Inc. warrants that the temporary leads, trial cables, single-use accessories, disposable tools, chargers, and Therapy Discs included in the Nalu Neurostimulation System are free from material defects in workmanship and materials for a period of one (1) year from the date of original purchase, with the exception of TD1, which carries a two (2) year warranty.

Conditions and Limitations

  1. The product registration card for such Non-Implantable Component must be completed and returned to Nalu within 30 days.
  2. The Non-Implantable Component must be used before the “use before” date on its label.
  3. Failure must be confirmed by Nalu, in Nalu’s sole reasonable discretion.
  4. The Non-Implantable Component must be returned within 30 days after it fails to operate.

Limitations

This Limited Warranty does not include failures caused by:

Software

Nalu warrants that any and all media on which the Software is delivered shall be free of material defects for a period of ninety (90) days after delivery from Nalu. Nalu accepts no liability in respect to any loss related to computer viruses.

LIMITED WARRANTY – IMPLANTABLE COMPONENTS

Nalu warrants that the permanent leads, extensions, anchors, and Implantable Pulse Generators are free from material defects in workmanship and materials for a period of five (5) years from the date of original purchase.

Conditions and Limitations

  1. The product registration card must be completed and returned within 30 days of surgery.
  2. The Implantable Component must be used before the “use before” date on its label.
  3. Failure of the Implantable Component must be confirmed by Nalu.

Limitations

This Limited Warranty does not include failures caused by:

Special Notice for Neurostimulation Systems Nalu Neurostimulation Systems consist of implantable neurostimulators. No representation or warranty is made that failure will not occur.