Terms of Sale
SI-BONE TERMS OF SALE
(updated June 25, 2015)
- Product Orders and Shipping. Institution (“Buyer”) will order SI-BONE, Inc. (“SI-BONE”) product (“Product”) via email or telephone or as otherwise agreed. Buyer will promptly provide a Purchase Order for each order. Product will be deemed accepted upon delivery. By accepting Product, Buyer agrees to these terms of sale (“Terms of Sale”). The Request for Purchase Order (“RPO”) accompanying the Product and these Terms of Sale (collectively the “Agreement”) constitute the entire agreement of the parties with respect to the purchase of Product and may only be modified or amended in a writing expressly signed by an authorized SI-BONE representative. Conflicting, differing or additional terms contained in any other document (including but not limited to purchase orders, quotations, order acceptances or confirmations) are hereby rejected and shall have no effect unless expressly agreed to in a writing signed by an authorized SI-BONE representative. SI-BONE may refuse any Product order in its sole discretion. SI-BONE will not be liable for any loss or damage caused by non-acceptance of orders or delays in making shipments. Product may not be returned.
- Payment. Buyer will pay SI-BONE for Product at the prices set forth in the RPO. The price includes the use of instrumentation for non-disposable implants. Such instrumentation is solely for use with SI-BONE products. SI-BONE must receive payment within 30 days of each invoice date. Invoices not paid when due will bear interest from the due date until payment in full at the rate of 1.5% per month (or any portion thereof) or the highest rate allowed by law, whichever is less.
- Product Re-Use. Buyer is prohibited from: (a) reselling or otherwise distributing Product; (b) using Product that has become desterilized (even if re-sterilization is attempted); and (c) reusing Product that has been explanted.
- Product Support. In its discretion, SI-BONE or its authorized representative will provide reasonable support and guidance limited to (a) that requested by a physician regarding the appropriate use, implantation, calibration or adjustment of the Product, and (b) consultation, advice or assistance where a physician, in his/her professional judgment, believes that it will assist with a patient’s treatment.
- Confidential Patient Information. Buyer may provide to SI-BONE incidental access to patient data that is protected by various laws, including the Health Insurance Portability & Accountability Act of 1996 (“HIPAA”) as amended (collectively “Personal Data”). Personal Data includes all “Protected Health Information” as defined in 45 C.F.R. § 160.103. Buyer will at all times act in accordance with all applicable laws governing Personal Data and will use reasonable efforts to safeguard and prevent the unnecessary disclosure of Personal Data to SI-BONE.
- Discounts. The pricing may be considered a “discount” within the meaning of 42 U.S.C. Section 1320a-7b(b)(3)(A) of the Social Security Act and the regulations promulgated at 42 C.F.R. Section 1001.952(h). Buyer agrees to (a) properly disclose and appropriately reflect any and all discounts, rebates, no-charge Product or other price reductions on any and all cost reports, claims or other requests for payment it submits to Medicare, Medicaid, or other federal or state health care programs, and as required by private payors and (b) retain copies of this Agreement, invoices and all other documentation of discounts and make them available to federal and state agencies or private payors upon request.
- Indemnification. Each party (the “Indemnifying Party”) agrees to indemnify and hold the other party, its affiliates, officers, directors, agents and employees (“Indemnitees”) harmless from and against all actions, liabilities, losses, damages, claims and demands whatsoever, including, but not limited to, attorney fees and other expenses that are brought or threatened against the Indemnitees by a third party (“Third Party Claims”) and are related to the Indemnifying Party’s (a) violation of any law or regulation or (b) negligence, recklessness or willful misconduct. The duty to indemnify will not apply to the extent that any such Third Party Claim arises from the negligence, recklessness, or willful misconduct of an Indemnitee.
- LIMITED WARRANTY. SI-BONE represents and warrants that, at the time of shipment, the Products: (i) conform to their published specifications as revised from time to time; (ii) are free of material defects in materials and workmanship; and (iii) are manufactured in accordance with GMP. This warranty applies only for a single use with one patient. SI-BONE may, at its option, repair or replace any Products that do not meet the preceding warranty, or refund the Product price. This warranty does not apply to (a) Products that have been modified or altered in any manner by anyone other than SI-BONE or (b) Product defects caused (i) through no fault of SI-BONE during shipment or otherwise; or (ii) by using the Product in a manner, application or environment other than that intended or recommended by SI-BONE; or (c) by negligence, misuse, or other causes other than normal and intended use.
- WARRANTY DISCLAIMER. THE WARRANTIES SET FORTH IN SECTION 8 ARE THE EXCLUSIVE WARRANTIES WITH RESPECT TO THE PRODUCTS, AND ARE GIVEN AND ACCEPTED IN LIEU OF ANY AND ALL OTHER WARRANTIES, GUARANTEES, CONDITIONS AND REPRESENTATIONS EXPRESS OR IMPLIED, CONCERNING THE MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING THE FOREGOING, SI-BONE DOES NOT EXCLUDE OR LIMIT LIABILITY TO THE EXTENT THAT SUCH LIABILITY MAY NOT BE EXCLUDED OR LIMITED BY LAW.
- LIABILITY LIMITATION. IN NO EVENT SHALL ANY PARTY HEREUNDER BE LIABLE TO ANY OTHER PARTY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BY STATUTE OR OTHERWISE). IN NO EVENT SHALL SI-BONE BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS BY BUYER. THESE LIMITATIONS SHALL APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. NOTHING IN THIS SECTION OR ELSEWHERE IN THIS AGREEMENT IS INTENDED TO LIMIT OR DIMINISH ANY INDEMNIFICATION OBLIGATION OTHERWISE SET FORTH IN THIS AGREEMENT.
- Insurance. Buyer agrees to secure and maintain in full force and effect the following insurance coverage with insurers having a minimum AM Best rating of A-VIII: Commercial General Liability Insurance with a minimum limit of $1,000,000 each occurrence, Statutory Workers’ Compensation and Employers’ Liability Insurance in an amount of $1,000,000 each accident and disease, and Professional Liability/Professional Errors and Omissions insurance with a minimum limit of $1,000,000 each occurrence and $3,000,000 annual aggregate. Buyer agrees to provide insurance certificates evidencing all such coverage upon request of SI-BONE.
- Proprietary Rights. SI-BONE retains all proprietary rights in and to all intellectual property, including designs, engineering details and other data pertaining to all Products.
- Confidentiality. Buyer agrees to keep confidential the terms and conditions of this Agreement, including but not limited to the identity of the items, prices and quantity.
- General Provisions. If any provision of this Agreement is declared invalid, illegal, or unenforceable, such provision will be severed and all remaining provisions will continue in full force and effect. No failure or delay to exercise any right, power or privilege hereunder will operate as a waiver thereof, and no single or partial exercise thereof will preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. This Agreement will be governed by and constructed in accordance with the laws of the State of California without regard to conflicts of the law principles. Headings herein are for convenience of reference only and will in no way affect interpretation of this Agreement.