MIMEDX GROUP, INC. AND SUBSIDIARIES (COLLECTIVELY, “MIMEDX”) TERMS AND CONDITIONS OF SALE
Order Entry Policy: For most efficient handling, all orders and correspondence pertaining to shipments should be communicated to:
MiMedx Customer Service Department, Tel: 866-477-4219 Fax: 770-590-3552
The Customer Service Department is open weekdays (excluding U.S. national holidays) between the hours of 8 a.m. and 7 p.m. Eastern Standard Time.
Customer agrees to purchase and accept MiMedx Products in accordance with these terms and conditions. MiMedx objects to and rejects any and all terms proposed by Customer, whether contained in Customer’s purchase order or elsewhere. If MiMedx and Customer have signed a separate, written agreement governing Customer’s purchase of MiMedx products, then the terms of that agreement shall govern.
1. INSPECTION; PRODUCT RETURN. Customer shall inspect the Products immediately upon receipt. In order to return Product that fails to conform to the warranty set forth herein, Customer shall (i) notify MIMEDX in writing that such Product failed to conform with the warranty set forth herein and furnish a detailed explanation of any alleged nonconformity, as required by MIMEDX’s then-current policy; (ii) obtain a RMA number for the nonconforming Product from MIMEDX; and (iii) within ten (10) days of receipt of the RMA number, return such Product to MIMEDX at the address specified in the RMA with the RMA number prominently displayed on the shipping carton, FCA Customer’s shipping point (Incoterms 2010). MIMEDX may refuse to accept any Product not shipped as herein provided. MIMEDX shall return to Customer, freight prepaid, all repaired or replaced Products properly returned by Customer. In the event that any returned Product is reasonably determined by MIMEDX to conform to the warranty set forth herein or to have been modified or subjected to stress, misuse or abuse, Customer shall reimburse MIMEDX for all reasonable costs and expenses related to the shipping, insurance, inspection and return of such Product to and from Customer.
2. SHIPMENT/RISK OF LOSS. Products shall be suitably packed for shipment in MIMEDX’s standard shipping cartons, marked for shipment to the destination specified in Customer’s purchase order, CIP MIMEDX shipping point (Incoterms 2010).
3. PAYMENT. Payment terms are net thirty (30) days from the date of shipment. Any unpaid balance as of the expiration of such 30 days shall bear interest at the rate of 1.5% per month, or, if lower, the highest rate allowed by applicable law. Customer shall be responsible for any and all costs actually incurred by MiMedx, including, without limitation, reasonable attorneys’ fees and costs, in collecting any sums due from Customer to MiMedx.
4. COMPLIANCE WITH LAW; LICENSES, ETC. MiMedx and Customer shall comply with all applicable statutes, rules, regulations and standards of any and all governmental authorities and regulatory and accreditation bodies relating to practitioners, hospitals, the provision of healthcare services, and the practice of medicine. Any licenses, permits, certificates or other documents that are required by any governmental authority for the supply and use of the Products hereunder shall be the respective responsibility of MiMedx and the Customer. MiMedx is not responsible for any violations of applicable laws and regulations by Customer with regard to the use of the Products.
5. WARRANITES. Subject to the provisions of this Section 5, MIMEDX warrants for a period of one (1) year after shipment that each amnion-based Product has been collected, processed and stored in compliance with all applicable laws and standards, including the AATB Standards and Title 21, Code of Federal Regulations 1271, Human Cells, Tissues, and Cellular and Tissue-Based Products, and has a shelf-life of at least two (2) years from the date of shipment to Customer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, MIMEDX MAKES NO WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE, AND MIMEDX SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING THE FOREGOING, MIMEDX DOES NOT EXCLUDE LIABILITY TO THE EXTENT THAT SUCH LIABILITY MAY NOT BE EXCLUDED OR LIMITED BY LAW.
6. EXCLUSIVE REMEDY/LIMITATION OF LIABILITY. If the Products delivered to Customer fail to conform to this Contract for any reason whatsoever, Customer’s sole and exclusive remedy shall be as provided herein. MiMedx shall not under any circumstances be liable to Customer for (i) any special, exemplary or consequential damages, however caused and under any theory of liability whether based in contract or tort or otherwise or (ii) any claim or demand brought against Customer by any other party, even if MiMedx has been advised of the possibility of such claim or demand. MiMedx’s liability to Customer for any claim whatsoever related to the Products or this Contract, including any cause of action sounding in contract, tort, indemnity, contribution or strict liability, shall not exceed the amount of all payments received by MiMedx for the Products that are subject of this Contract.
7. INDEMNIFICATION. Customer shall defend, indemnify and hold harmless MiMedx from and its respective members, directors, officers, employees and agents from and against any 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 or customer of Customer or any third party that arises out of the Customer’s breach of its obligations hereunder or is due to the negligent acts, omissions or intentional acts of Customer, its employees, agents, consultants, or subcontractors.
8. FORCE MAJEURE AND DELAY. MiMedx shall be excused for any delay in the shipment of any Products ordered due to acts of God, war, the public enemy, mobilization, riot, strike, lockouts, work stoppage or any other labor difficulties, blights, disease, excessive heat, explosion, shortage of cars or other materials, embargoes, acts of civil or military authorities, fires, floods, accidents, quarantine restrictions, carrier conditions, delays in transportation, or any other case of Force Majeure, or circumstances or cause beyond the reasonable control of MiMedx. In the event of such an occurrence, MiMedx shall give Customer reasonable notice that there will be a delay or non-delivery, upon which notification this Contract shall be deemed terminated and MiMedx shall have no further obligation to ship the Products covered by this Contract. Notwithstanding the preceding sentence, if Customer agrees to a future delivery date in writing, this Contract shall continue and MiMedx shall deliver the Products on such later delivery date. MiMedx shall make every reasonable effort to meet the shipping date specified in this Contract. In no event, however, will MiMedx be liable for its failure to meet such date if the delay is caused by reasons beyond the reasonable control of MiMedx.
9. ATTORNEY’S FEES. In the event legal action is pursued with respect to this Contract, including, without limitation, actions to interpret or to enforce any of the provisions herein, and if MiMedx prevails in such legal action, MiMedx shall be entitled to recover from Customer, attorney’s fees and costs reasonably incurred by MiMedx in such action, unless prohibited by applicable law.
10. PRODUCT RECALLS. In the event (a) any government authority issues a request, directive or order that any Product be recalled, (b) a court of competent jurisdiction orders such a recall, or (c) MiMedx reasonably determines, after consultation with Customer, that any Product should be recalled, Customer shall cooperate with MiMedx in effecting such recall as MiMedx may reasonably request. MiMedx shall have administrative responsibility for effecting any such recall.
11. PROPRIETARY RIGHTS. Customer agrees that MiMedx retains all right, title and interest in and to all patent rights, trademarks, trade names, inventions, copyrights, know-how and trade secrets relating to the Products and the design, processing, manufacture, operation or service of the Products. Customer shall not (and shall require that its customers, if any, do not) remove, alter, cover or obfuscate any proprietary rights notices placed or embedded by MiMedx on or in any Product.
12. RECORD KEEPING. MiMedx and Customer will keep or cause to be kept in accordance with FDA/AATB regulatory requirements books and records regarding the purchases and sales of Products pursuant to this Agreement. All tissue utilization records will be returned to MiMedx. Further, to the extent and only to the extent required by law, until the expiration of four years after the furnishing of the products and services provided under this Agreement, MiMedx will make available to the Secretary of the U.S. Department of Health and Human Services, the U.S. Comptroller General, and their representatives, this Agreement and all books, documents, and records necessary to certify the nature and extent of the costs of any products or services provided hereunder. If MiMedx subcontracts its duties hereunder through a subcontract worth $10,000 or more over a 12-month period with a related organization, the subcontract will also contain an access clause to permit access by the Secretary, Comptroller General, and their representatives to the related organization’s books and records.
13. ENTIRE AGREEMENT/SEVERABILITY. In the event of a conflict between the provisions of this Contract and the provisions of a signed, separate written agreement between Customer and MiMedx, the terms and conditions of the signed agreement shall prevail. In the event that any of the terms of this Contract is, becomes or is declared to be invalid or void by any court of competent jurisdiction, such term or terms shall be null and void and shall be deemed severed from this Contract and all of the remaining terms of this Contract shall remain in full force and effect.
14. GOVERNING LAW; VENUE. This Contract shall be governed by and construed in accordance with the laws of the State of Georgia, without giving effect to its conflict of laws principals. Any demand, suit or cause of action arising out of this Contract shall be brought in a state or federal court located in Fulton County, Georgia. Customer hereby submits to the jurisdiction and venue of such court.
15. NONASSIGNABILITY; AMENDMENTS. Customer shall not assign this Contract without the prior written consent of MiMedx and any attempt to assign or transfer any of the rights, duties or obligations under this Contract without such consent shall render such assignment or transfer null and void. This Contract can be amended only in writing executed by MiMedx and Customer.
16. PRICING. The pricing on the invoice reflects the net price of supplies to the purchaser. This price is net after a discount or other reduction in price, and the net price as well as any discount may be reportable under federal regulations at 42 C.F.R. §1001.952(h).