Standard Terms and Conditions of Sale

Atos Medical, Inc. (“Atos Medical”) sells its products (“Products”) subject to these Standard Terms and Conditions of Sale (“Terms”).  Atos Medical represents that, at the time of sale, it has good title to the Products and the right to transfer such title free and clear of any liens or encumbrances, except as otherwise disclosed in writing.

  1. Price.  Unless otherwise agreed in writing, prices are exclusive of applicable taxes, duties, shipping, handling, and other charges, all of which are the responsibility of the customer.
  2. Payment Terms. Payment terms are net 30 days from the date of invoice or first statement, as applicable. Atos Medical accepts check, money order, bank draft, Visa, Mastercard, American Express, and Discover. Past-due amounts may accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law. The customer is responsible for reasonable collection costs, including attorneys’ fees, to the extent permitted by law. Atos Medical may suspend or cancel orders, deliveries, payment plans, or account privileges for nonpayment, credit risk, suspected fraud or abuse, regulatory concerns, or violation of these Term.
  3. Shipping. Unless otherwise agreed in writing, all Products are shipped FOB Origin from Atos Medical’s designated shipping point. Title to the Products and risk of loss or damage pass to the customer upon Atos Medical’s delivery of the Products to the carrier for shipment.
  4. Delivery. Delivery dates are estimates only and are not guaranteed. Atos Medical is not responsible for delays caused by carriers, suppliers, force majeure events, payer authorization requirements, incomplete information, or other circumstances outside Atos Medical’s reasonable control.
  5. Warranty, Atos warrants all Products sold will be free from defects in material and workmanship at time of delivery, subject to proper handling, transportation, storage and use of such Products. EXCEPT AS SET FORTH IN THE PRECEDING SENTENCE, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
  6. Indemnification. Each party will indemnify, hold harmless and defend the non-indemnifying party, its directors, officers, employees, agents, successors, and assigns from and against all third party claims, demands, actions, damages, liabilities, losses, suits, proceeding, costs, and expenses  including reasonable attorney’s fees, arising out of or resulting from bodily injury, death, or property damage to the extent caused by the indemnifying party’s negligence or willful misconduct in performing its obligations hereunder.
  7. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL ATOS MEDICAL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST REVENUE, LOSS OF DATA, LOSS OF USE, OR BUSINESS INTERRUPTION, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF ATOS MEDICAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ATOS MEDICAL’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS OR THE SALE OF PRODUCTS WILL NOT EXCEED THE AMOUNT PAID BY THE CUSTOMER FOR THE SPECIFIC PRODUCTS GIVING RISE TO THE CLAIM. NOTHING IN THESE TERMS LIMITS LIABILITY TO THE EXTENT SUCH LIMITATION IS PROHIBITED BY APPLICABLE LAW.
  8. Insurance.  Each party will maintain commercial general liability insurance covered in an amount not less than $1,000,000.00 per occurrence and $3,000,000.00 annual aggregate. Upon a party’s request, the other party will provide evidence of insurance.
  9. Compliance; No Resale or Diversion. Each party shall comply with applicable laws and regulations relating to the sale, purchase, use, billing, reimbursement, privacy, and distribution of Products. Products may not be resold, diverted, relabeled, exported, or distributed outside authorized channels without Atos Medical’s prior written consent and compliance with applicable law.
  10. Return Policy Products may be returned only with prior authorization from Atos Medical and only if the Products are in saleable condition, in their original packaging, and the packaging and contents have not been opened, altered, damaged, or tampered with, unless the return is due to an error by Atos Medical or as otherwise required by applicable law.
    - 10.1. Atos Medical reserves the right to reject any returns or exchanges if the Product or packaging appears to have been opened, altered, damaged, contaminated, or tampered with.
    - 10.2. Products in the customer’s possession longer than 90 days are not eligible for return.
    - 10.3. Business customers may be charged a restocking fee of 25% of the Product’s purchase price for eligible returns, unless the return is due to an error by Atos Medical.
    - 10.4. After return authorization is issued, the Product must be received by Atos Medical within 30 days or the return authorization will be cancelled.
    - 10.5. Shipping discrepancies must be reported within 30 days after shipment. After that period, Atos Medical may be unable to investigate or provide replacement, credit, or other adjustment.
    - 10.6. Returns should be sent to: 2230 South 162nd Street, New Berlin, WI 53151, or such other return location designated by Atos Medical.
    - 10.7. Customer is responsible for proper packaging, shipping charges, insurance, and risk of loss for return shipments, unless the return is due to an error by Atos Medical or otherwise required by applicable law.
    - 10.8. Atos Medical may change its return process from time to time, provided such changes do not affect any return rights required by applicable law.
  11. Product Changes; Recalls and Field Actions. Atos Medical may modify, discontinue, substitute, or limit availability of Products as needed, subject to applicable law and payer or clinical requirements. Customers shall reasonably cooperate with recalls, corrections, safety notices, field actions, adverse event reporting, product tracing, and similar regulatory obligations.
  12. Privacy. Atos Medical is a covered entity under the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, as applicable. Atos Medical will handle personal information and protected health information in accordance with applicable privacy laws, including HIPAA where applicable, and Atos Medical’s applicable privacy notices and patient forms.
  13. Governing Law and Venue.  This Term will be governed by and construed in accordance with the laws of the State of Minnesota, without regard to the rules or statutes of any jurisdiction with respect to conflict of laws. All disputes hereunder must be brought in State or Federal courts in Minneapolis. All disputes hereunder must be brought in State or Federal courts in Minneapolis, Minnesota, and the parties consent to the venue and jurisdiction of such courts therein.