TERMS AND CONDITIONS
These Terms and Conditions (“Terms”) shall govern all purchases of products and services from ArteMedics L.L.C. (“ArteMedics”), described in the applicable estimate (the “Estimate”) agreed to by the customer identified therein (“Customer”). These Terms and the Estimate are collectively referred to herein as the “Agreement.” In the event of a conflict between the Estimate and these Terms, the Estimate shall control.
1. Agreement. For the avoidance of doubt, the Agreement shall not be binding on ArteMedics unless the Estimate is expressly accepted by ArteMedics, and when accepted it shall bind Customer to purchase the applicable Products or Services, subject to the terms of the Agreement. By signing the Estimate or otherwise communicating your agreement in writing, you agree to be bound by these Terms and the Estimate without limitation or qualification.
2. Pricing and Payment.
2.1 Invoices. ArteMedics shall invoice Customer the applicable purchase price for the Products or Services (as defined below). Unless otherwise specified on the applicable invoice or Estimate, invoices are due thirty (30) days from the date of the invoice. As between ArteMedics and Customer, Customer shall be exclusively responsible for payment of any applicable international, federal, state and local taxes and assessments on the purchase of the Products and Services; provided that Customer shall not be liable for any taxes based on ArteMedics’ net income. All payments shall be made in USD. Subject to Section 8, all amounts paid are nonrefundable.
2.2 Payment. If Customer disputes any portion of any invoice, Customer shall notify ArteMedics in writing within five (5) business days from the date of the invoice with sufficient detail to allow the parties to resolve the dispute in good faith; otherwise, such invoice shall be deemed approved for all purposes. Overdue fees shall bear interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate allowed by applicable law, until paid. Customer shall be responsible for all charges, fees and expenses (including, but not limited to, reasonable attorney’s fees) incurred by ArteMedics in enforcing or attempting to enforce the Agreement (including, without limitation, payment obligations), regardless of whether suit is commenced. ArteMedics shall have the right to suspend or cancel delivery of the Products or Services if any invoice becomes more than thirty (30) days overdue or Customer is otherwise in default under the Agreement. ArteMedics shall have no liability with respect to any such suspension or cancellation.
2.3 Methods of Payment. If Customer elects to make payment by credit or debit card or ACH transfer, and such method of payment is allowed by ArteMedics, in its sole discretion, (i) Customer is responsible for providing a valid credit or debit card number or ACH account number at the time Customer submits payment, (ii) Customer represents and warrants that Customer (and the individual submitting payment) is an authorized user of the credit or debit card number or ACH account number provided, and Customer agrees to pay all charges resulting from Customer’s use of such method of payment, including, but not limited to, any unauthorized charges, and (iii) Customer agrees that ArteMedics may pass Customer’s credit, debit and ACH information to its designated service provider(s) for their use in processing such payments.
2.4 Credit. ArteMedics may, in its sole discretion, establish a credit limit for Customer and adjust such credit limit from time to time. ArteMedics shall have no obligation to accept or confirm Estimates and may suspend or cancel delivery of the Products or Services if such credit limit is or would be exceeded by Customer. ArteMedics shall have no liability with respect to any such non-acceptance, non-confirmation, suspension or cancellation. Customer agrees to provide all documentation and information reasonably requested by ArteMedics in conjunction with establishing or adjusting such credit limit, including, without limitation, credit references and financial information. In addition, Customer shall complete, sign and deliver a credit application upon ArteMedics’ request.
2.5 Shipping and Packaging. Customer shall be responsible for payment of shipping, crating, freight and related charges, regardless of whether Customer or ArteMedics provides or arranges for shipment or such charges are incurred in connection with a return allowed by ArteMedics. All Products to be shipped shall be shipped FOB ArteMedics’ facility and title and risk of loss shall pass to Customer when the Products are loaded for shipping, and all Products to be shipped internationally shall be shipped EXW (Incoterms® 2010) ArteMedics’ facility and title and risk of loss shall pass to Customer when the Products are made available for shipping. Customer agrees and acknowledges that any delivery dates or deadlines contained in an Estimate or otherwise are approximate and not guaranteed. If ArteMedics accepts the return of a Product, in its sole discretion, such return shall be subject to a reasonable re-stocking fee.
3. Termination. ArteMedics may terminate the Agreement or just the applicable Estimate for cause if Customer (i) breaches a material term or condition and fails to cure such breach within ten (10) days of the date that written notice of the breach is provided, (ii) makes an assignment of all or part of its assets for the benefit of creditors, or becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors (collectively “Petitions”), if such Petitions are not dismissed within sixty (60) days of filing, or (iii) fails to inform ArteMedics of any Petition in writing within five (5) days of the filing of such Petition. These Terms shall survive termination or expiration with respect to all Estimates accepted by ArteMedics prior to the effective date of termination or expiration. Customer shall pay for all fees, charges or expenses related to the purchase of Products or performance of Services up to and including the effective date of termination. Upon termination of the Agreement, Customer shall return to ArteMedics all documents and other tangible manifestations in whatever form of ArteMedic’s Confidential Information (as defined below) and all copies and reproductions thereof and certify such return to ArteMedics.
4. Animal Use. ANY DEVICE, PRODUCT OR MATERIAL PROVIDED BY ARTEMEDICS (“PRODUCTS”) IS INTENDED ONLY FOR USE ON ANIMALS. CUSTOMER AGREES AND ACKNOWLEDGES THAT PRODUCTS AND SERVICES SHALL NOT BE USED IN CONNECTION WITH HUMANS.
5. Services. ArteMedics may agree to provide services (“Services”) from time to time as set forth in the applicable Estimate. Customer agrees to pay ArteMedics standard hourly rates for such Services to the extent such rates are not specified in the Estimate. ArteMedics may subcontract any Services without Customer approval. To the extent Services result in Work Product (as defined below), Customer acknowledges and agrees that as between Customer and ArteMedics, ArteMedics is and shall remain the exclusive owner of Work Product and all patent, copyright, trade secret, trademark and other intellectual property rights therein. Subject to Customer’s strict compliance with the Agreement and full and prompt payment of any fees, charges or expenses owed ArteMedics for Services and/or Work Product, Customer is granted a limited, nonexclusive, nontransferable license to use Work Product to the extent necessary to achieve the purpose for which Work Product was created. “Work Product” means any processes, prototypes, equipment, methods and apparatus, data, reports, analyses, writings, materials, deliverables, materials, samples, components, tools, operating devices, engineering models, and all derivatives, modifications and products of the foregoing, at all stages of development and upon completion, that are developed, discovered or created by ArteMedics in connection with or as a result of Services performed for Customer (including that which is collectively developed, discovered or created by ArteMedics and Customer in connection with the Agreement).
6. Third Party Products. Certain Products or Services may incorporate components, subparts, products or services from third parties that are not specifically manufactured or performed by ArteMedics (“Third Party Products”). ArteMedics shall have no liability with respect to Third Party Products nor an obligation to provide support or maintenance relating to Third Party Products. ArteMedics will pass through to Customer any standard warranties provided by the manufacturer, vendor or supplier of the Third Party Product.
7. Nonconforming Products and Warranty. Customer shall have thirty (30) days from receipt of the Products or Services to notify ArteMedics of any nonconformity; otherwise, such Products and Services shall be deemed to have conformed with all requirements, quantities and specifications for all purposes.
8. Product Warranty. ArteMedics warrants that all Products manufactured by ArteMedics shall be free from material defects for one (1) year from the date of shipment (the “Warranty”); provided Customer (i) is not in default under the Agreement, (ii) provides detailed written notice of the alleged defect within thirty (30) days of discovery and one (1) year from the date of shipment, and (iii) at ArteMedics option, either allows ArteMedics to inspect the applicable Product in the state and/or configuration that the defect was discovered (at a location acceptable to ArteMedics), or ships the Product back to ArteMedics for inspection, at Customer’s sole cost. The Warranty shall not apply to the extent defects are caused by (a) normal wear and tear (for Products normally designated as consumables), (b) Customer’s misuse, negligence, accident or failure to follow any guidelines or instructions made available by ArteMedics, (c) abnormal environmental conditions, or (d) use in connection with (or within) any product, system, component or device not provided by ArteMedics. The Warranty shall only apply to Customer and shall not cover or apply to any subsequent owner, user or recipient of the Product, or any Third Party Products. In the event ArteMedics determines a Product, or component thereof, has a material defect covered by the Warranty, ArteMedics will repair, replace or refund the amounts paid for the Product or defective component, in its sole discretion. ArteMedics repairing, refunding or replacing the Product or a component thereof is not an admission of liability. THIS SECTION 8 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND ARTEMEDIC’S SOLE LIABILITY FOR CLAIMS THAT THE PRODUCTS ARE DEFECTIVE.
EXCEPT FOR THE WARRANTIES EXPRESSLY INCLUDED IN THESE TERMS, ARTEMEDICS DOES NOT MAKE AND HEREBY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT) WITH REGARD TO ANY PRODUCTS, SERVICES, THIRD PARTY PRODUCTS OR ANY MATERIALS OR INFORMATION RELATED TO OR PROVIDED THROUGH ANY PRODUCTS, SERVICES OR THIRD PARTY PRODUCTS, AND ALL SUCH PRODUCTS, SERVICES, THIRD PARTY PRODUCTS, MATERIALS AND INFORMATION ARE PROVIDED ON AN “AS IS” BASIS.
9. Representations and Warranties. Each party represents and warrants that (i) the Agreement has been validly signed and/or agreed to in writing and constitutes the legal, valid and binding obligation of such party enforceable against such party in accordance with its terms, subject to the principles of equity, bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, (ii) such party has all requisite authority to enter into the Agreement and to carry out the transactions contemplated by the Agreement, (iii) such party’s signature and delivery of the Agreement and performance and compliance with the terms of the Agreement will not conflict with, result in a breach of, constitute a default under or require the consent of any third party under any license, sublicense, lease, contract, agreement or instrument to which such party is bound or to which such party’s properties are subject, and (iv) there are no pending or threatened lawsuits, actions or any other legal or administrative proceedings against such party which, if adversely determined, would have a material adverse effect on the validity of the Agreement or such party’s ability to perform such party’s obligations under the Agreement. Customer further represents and warrants that (v) any information provided to ArteMedics in connection with the purchase of any Products or Services is truthful and accurate, (vi) he, she or it understands that ArteMedics has relied upon the data and information furnished by or on behalf of Customer with respect to the safety aspects of the Products or Services, (vii) he, she or it will only use the Products, Services and Work Product as intended, in a safe manner, and only on, or in connection with, animals and not humans, (viii) he, she or its use of the Products, Services or Work Product will comply with all applicable laws, regulations, codes, as well as any applicable professional standards or best practices, and (ix) he, she or it will not resell any Products, Services or Work Product except in connection with the treatment for which it was purchased.
10.1 Confidential Information. “Confidential Information” shall mean all nonpublic, confidential and/or proprietary materials, information or data disclosed or otherwise made available by ArteMedics to Customer, including, without limitation, financial plans, ideas, concepts, drawings, designs, software, inventions, discoveries, Work Product, improvements, specifications, trade secrets, prototypes, recipes, processes, notes, memoranda, lists and reports concerning ArteMedics’ past, present or future research, technology, know-how, computer programs, products, subscribers, customers, prospective customers, suppliers, vendors, employees and/or contractors, sales and marketing plans, financial statements, business plans, loan information, product plans, costs and/or prices. Confidential Information shall also include any other information, in any form, which should reasonably be considered confidential or proprietary. Confidential Information shall not include information which was previously lawfully known to Customer free of any confidentiality obligation or information which is or becomes publicly available other than by unauthorized disclosure. Customer shall bear the burden of proof for relying on one of these exceptions.
10.2 Use and Disclosure. Customer shall (i) keep all Confidential Information confidential and not use Confidential Information except as necessary in the course of performing Customer’s obligations under the Agreement, (ii) use the same degree of care Customer uses to protect its own proprietary information (but in no event less than a reasonable degree of care) to prevent the unauthorized use or disclosure of Confidential Information, (iii) not “reverse engineer,” make derivatives or adaptations of, duplicate or copy in any fashion any Confidential Information, in whole or in part, without the prior written consent of ArteMedics, (iv) immediately notify ArteMedics of any use or disclosure of Confidential Information not permitted by the Agreement of which Customer becomes aware, and (v) not disclose or otherwise make available any Confidential Information to any third party. Customer will abide by any of ArteMedics’ policies and procedures related to the protection of its Confidential Information and/or proprietary information, as may be adopted or modified from time to time.
10.3 Compelled Disclosure. Notwithstanding anything to the contrary, in the event that Customer is legally compelled to disclose any Confidential Information pursuant to a subpoena, order, process or other requirement of a judicial or other governmental agency, Customer may disclose such Confidential Information provided that Customer (i) notifies ArteMedics as soon as practicable prior to making such legally compelled disclosure, (ii) provides any reasonably requested assistance to ArteMedics in obtaining a protective order, and (iii) only discloses that portion of Confidential Information that, in the opinion of Customer’s legal counsel, Customer is legally required to disclose.
11. Additional Rights. Unless otherwise requested by Customer in writing, ArteMedics may publicize Customer’s selection to do business with ArteMedics, including Customer’s name and Customer’s logos and/or marks. ArteMedics agrees that all uses of such names, logos and marks shall inure solely to Customer’s benefit.
12. Ownership. Customer acknowledges and agrees that as between Customer and ArteMedics, ArteMedics is and shall remain the exclusive owner of Work Product, its Confidential Information and all patent, copyright, trade secret, trademark and other intellectual property rights therein. Except as expressly recited herein, no rights or obligations are to be implied from the Agreement and no license is hereby granted, directly or indirectly, under any patent, trade secret, copyright or other intellectual property right now held by, which may be obtained by or which are or may be licensable by ArteMedics. ArteMedics expressly reserves all rights not expressly set forth in the Agreement. Customer shall not, and shall not allow or assist any third parties to, (i) sublicense, rent, lease, use, permit use of, modify, create derivatives of or make available any part of the Confidential Information or Work Product except as expressly permitted in the Agreement; (ii) decompile or reverse engineer any Work Product, Third Party Products or Confidential Information; (iii) use the Products, Services or Work Product other than in accordance with the Agreement.
13. Customer Responsibility. Customer understands the risks associated with use of the Products and Services. Customer acknowledges that Customer is using the Products at Customer’s own risk and Customer is personally responsible for verifying their suitability for Customer’s needs.
14. Indemnification. Customer agrees to indemnify, defend and hold ArteMedics, its affiliates, agents, suppliers, successors and assigns harmless from and against any and all losses, liabilities, damages, penalties, claims, and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to Customer’s (i) breach of the Agreement, (ii) negligent act or omission, and (iii), use of the Products, Services or Work Product in connection with humans or in violation of the law, except if such losses, liabilities, damages, penalties, claims, and expenses result solely from ArteMedics’ gross negligence or willful misconduct.
15. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ARTEMEDICS OR ITS AFFILIATES, AGENTS, SUPPLIERS, SUCCESSORS AND ASSIGNS BE LIABLE UNDER ANY LEGAL THEORY FOR (I) ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, THE SERVICES, THIRD PARTY PRODUCTS, WORK PRODUCT OR PRODUCTS, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, INTEREST OR INTERRUPTION OF BUSINESS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) ANY DAMAGES EXCEPT TO THE EXTENT OF ACTUAL, DIRECT DAMAGES INCURRED BY CUSTOMER, NOT TO EXCEED THE FEES PAID BY CUSTOMER FOR THE APPLICABLE PRODUCTS OR SERVICES IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE EXISTENCE OF MULTIPLE CLAIMS SHALL NOT INCREASE THIS LIMIT. Any claims arising in connection with the Agreement, except for claims arising out of Customer’s nonpayment, must be brought within one (1) year of the date of the event giving rise to such action occurred.
16. Acknowledgement. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH SECTIONS 8, 14, AND 15 ARE FUNDAMENTAL ELEMENTS OF THE AGREEMENT AND THE PRODUCTS AND SERVICES WOULD NOT BE PROVIDED TO CUSTOMER ABSENT SUCH DISCLAIMERS AND LIMITATIONS OF LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OF CERTAIN LIABILITIES, SO THE ABOVE MAY NOT APPLY TO CUSTOMER.
17. Governing Law and Disputes. The Agreement shall be governed by, construed and enforced according to the laws of the State of Minnesota, without regard to its conflict or choice of law principles. Any action arising out of or relating to the Agreement shall be brought only in the state or federal courts of Minnesota, and all parties expressly consent to such courts’ jurisdiction and irrevocably waive any objection with respect to the same, including any objection based on forum non conveniens.
18. Force Majeure. Neither party shall be responsible for delays or failures of performance resulting from acts beyond the reasonable control of such party, except for payment obligations. Such acts shall include, but are not limited to, acts of God, strikes, public internet and private internet connection failures, lockouts, riots, acts of war, acts of terror, epidemics, government regulations, fire, communication line failures, power failures, earthquakes and other disasters.
19. Successors and Assigns. Customer may not assign the Agreement, or any of Customer’s rights or obligations hereunder, without the prior written consent of ArteMedics. Any attempted assignment in violation of the foregoing shall be null and void. ArteMedics may freely assign the Agreement, or any of its rights or obligations hereunder. All of the terms and provisions of the Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
20. Notices. Notices shall be in writing and shall be deemed given when (i) delivered personally, (ii) three (3) business days after the date sent by certified mail, postage prepaid with return receipt requested, or (iii) sent via electronic mail, in each instance to the contact information provided in the Estimate. Either party may update its contact information by providing advanced written notice to the other party.
21. Miscellaneous. The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior agreements, negotiations and discussions, whether oral or written, of the parties with respect to the subject matter hereof. There are no warranties, representations or agreements among the parties with respect to subject matter hereof, except as set forth or referred to herein. The Agreement may not be modified, altered or amended except in a writing that is duly signed by the parties hereto. Provisions in the Agreement that by their nature should reasonably be considered to survive termination or expiration of the Agreement shall so survive, including, but not limited to, indemnification, warranties, disclaimers, limitations of liability, and confidentiality provisions. Any other terms and conditions supplied by or through Customer (e.g., terms contained on a purchase order), shall be of no force or effect and are superseded by the Agreement. Customer has been represented by independent legal counsel or acknowledges that he, she or it has been afforded the opportunity of representation by independent legal counsel. Therefore, no provision of the Agreement shall be construed against the drafting party. Should any provision of the Agreement be held invalid or unenforceable, such invalidity will not invalidate the whole of the Agreement, but rather that invalid provision will be amended to achieve as nearly as possible the same effect as the original provision and the remainder of the Agreement will remain in full force and effect. Should any provision of the Agreement be held invalid or unenforceable, such invalidity will not invalidate the whole of the Agreement, but rather that invalid provision will be amended to achieve as nearly as possible the same effect as the original provision and the remainder of the Agreement will remain in full force and effect. No waiver of any provision of the Agreement nor consent to any departure herefrom shall in any event be effective unless the same shall be in writing and signed by the waiving party, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.
Last Updated: March 1, 2019