Terms & Conditions
Last updated: October 2022
These terms and conditions, along with any applicable terms stated in any price list or fee schedule, govern the sale by Artivion, Inc. and its affiliates (collectively, the “Company”) of its products and tissue services. By ordering products or tissue services from Company, you (the “Customer”) are agreeing to the terms and conditions set forth herein. No terms stated in Customer’s purchase order or other document or communication related to any order shall be binding upon Company if inconsistent with or in addition to the terms stated herein unless accepted by Company in writing. If, however, a written contract exists between Company and Customer covering the purchase of Company’s products or tissue services covered by these terms, the contract terms shall govern to the extent inconsistent with these terms. Acceptance of these terms and conditions is considered confirmation that the Customer has no special requirements for the product or tissue services. Customers with special requirements should contact customer service prior to placing an order.
2. PRODUCTS AND TISSUE SERVICES
The products or tissue services Customer is purchasing from Company are those stated on the invoice on the front side of these terms and are subject to availability. All references to tissues or tissue services as set forth in these terms do not refer to the purchase and sale of human tissue, but instead refer to the payment of recovery and processing fees for the tissue by Customer to Company and the distribution of tissue from Company to Customer; tissues are not a “good” subject to Article II of the Uniform Commercial Code and may not be sold. For autologous tissues, customer agrees to follow the IFU, any additional instructions provided, and any applicable protocols or procedures promulgated by The American Association of Tissue Banks.
3. RETURN OF PROCESSED TISSUE
Company may in its sole discretion accept return of tissue if: (a) the scheduled surgical case related to the tissue is canceled; (b) Customer immediately notifies Company and receives a return material authorization number (“RMA”); (c) the tissue is returned to Company in the original sealed shipping container within the time stamped on container; and (d) there is no damage to the tissue. Upon such return, Customer shall pay return shipping fees and the quality re-inspection and regulatory compliance fee published on Company’s website (www.artivion.com/Fees-Reinspection) as of the date of the return. Tissue not meeting Company’s specifications when delivered to the shipping point may be returned with a RMA and Customer will receive, at Company’s option, either a credit of fees paid or replacement.
4. RETURN OF PRODUCTS
Company may in its sole discretion accept the return of certain unused products if: (a) Customer obtains an RMA, (b) the return is completed within thirty (30) days of Customer’s initial receipt of the products; and (c) products are in the original packaging with seals and/or pouches unopened and are in saleable condition. Upon such return, Customer shall pay return shipping fees and the quality re-inspection and regulatory compliance fee published on Company’s website (www.artivion.com/Fees-Reinspection) as of the date of the return. Products not meeting Company’s specifications when delivered to the shipping point, or shipped at Company’s error, may be returned with a RMA and customer will receive, at Company’s option, either a credit of fees paid or replacement.
5. RISK OF LOSS AND TITLE
Products are sold FOB Shipping Point, and therefore title is transferred to Customer and Customer bears all risk of loss upon delivery of such Products to the shipping point.
Customer shall pay the amounts stated on the invoice on the front side of these terms within thirty (30) days of the date of the invoice. Any balance not paid when due shall bear interest at the rate of eighteen percent (18%) per annum or the maximum amount allowed by law, whichever is less, until paid in full. Quoted prices for products do not include shipping and handling or any taxes due.
7. DEFAULT AND SECURITY INTEREST
In the case of default of breach by Customer in its performance hereunder, Company may cancel any outstanding orders and have all remedies afforded by law or equity. Shipments and deliveries by Company shall at all times be subject to the approval of and requirements of the credit department of Company, including the requirement that Customer pay all or part of the purchase price in advance if required. Company retains a purchase money security interest in all products not paid for in full, notwithstanding that the goods have been delivered to Customer, and Customer hereby authorizes Company to execute and file financing statements and other documents to evidence Company’s security interest.
Customer shall obtain its own licenses, permits, certificates, or other documents required by any governmental authority for the supply, use, and implantation of the products or tissues. Company is not responsible for any violation of applicable laws, rules, or regulations by Customer with regard to the use or implantation of any products or tissues.
COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESSED, IMPLIED, OR OTHERWISE, REGARDING THE PRODUCTS, OR TISSUES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY THAT FAILURE OF THE PRODUCTS WILL NOT OCCUR OR THAT THE BODY WILL NOT REACT ADVERSELY TO THE PRODUCTS. COMPANY FURTHER EXPRESSLY DISCLAIMS RESPONSIBILITY FOR ANY MEDICAL COMPLICATIONS, INCLUDING DEATH, RESULTING FROM THE USE OR IMPLANTATION OF THE PRODUCTS OR TISSUES. CUSTOMER IS RESPONSIBLE FOR REVIEWING ALL APPLICABLE INSERTS, LABELS, INSTRUCTIONS FOR USE, AND OTHER INFORMATION MADE AVAILABLE BY THE COMPANY FOR THE PRODUCTS OR TISSUES.
10. EXCLUSIVE REMEDY
If the products or tissues fail to conform to their published specifications for any reason whatsoever, Customer’s sole and exclusive remedy shall be to return the products or tissues as provided herein.
11. LIMITATION OF LIABILITY
Company shall not under any circumstances be liable to Customer for: (a) lost profits, or any special, indirect, exemplary, consequential, punitive, or other similar damages, however caused, or (b) any claim or demand brought against Customer by any other party, even if Company has been advised of the possibility of such claim or demand. Company’s liability to Customer for any claim whatsoever related to the products or tissues shall not exceed the amount paid by Customer to Company for such products or tissue services.
Customer shall defend, indemnify and hold harmless Company from all liability and claims of all kinds for any injury to persons or property, or any other claims of injury, loss, expense, or damage incurred by any employee, patient, or customer of Customer or any third party that are related to or arise from Customer’s use of the products or tissues or any third party acts or omissions.
13. ATTORNEY’S FEES
Company shall be entitled to recover from Customer any attorney’s fees and other costs reasonably incurred by Company in any action, suit, or claim related to the products or tissues or enforcement of these terms.
14. GOVERNING LAW; VENUE
These terms and conditions shall be governed by and construed in accordance with the laws of the State of Georgia, without giving effect to its conflict of laws. Any demand, suit, or cause of action arising out of these terms and conditions shall be brought exclusively in a court located in Georgia. Customer hereby submits to the jurisdiction and venue of such court.
15. ENTIRE AGREEMENT
These terms and conditions, including any additional terms applicable as stated in Paragraph 1 above, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede any and all previous or contemporaneous agreements between the parties, both written and oral.
16. FORCE MAJEURE
Except for failure to pay amounts due, neither party shall be liable to the other for any delay or failure to perform that results from any event or cause that is beyond the reasonable control of the party obligated to perform.
17 ADVERSE EVENTS
Customer shall advise the Company as soon as possible, but no later than five (5) days, of any information regarding an actual, reported, or potential adverse event or complaint relating to the use of the products or tissues, which comes to the attention of Customer, including those reported to any of their employees or agents.