Terms & Conditions
Vertiflex, Inc. Terms & Conditions
The following is a summary of several provisions of these Terms & Conditions. THIS SUMMARY IS NOT A COMPLETE LIST OF ALL PROVISIONS. BE CERTAIN TO READ THE FULL TERMS AND CONDITIONS IN DETAIL BEFORE PLACING ANY ORDER; IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THIS SUMMARY AND THE FULL TERMS AND CONDITIONS, THE FULL TERMS AND CONDITIONS WILL GOVERN.
By ordering or accepting Vertiflex products, the customer agrees:
- Purchase orders are not binding upon Vertiflex until accepted by Vertiflex in writing. Products will be invoiced upon acceptance of the order to purchase product.
- Customer accepts delivery upon receipt of products. Products may only be returned in accordance with the full Terms & Conditions and are subject to a 15% handling charge.
- Vertiflex does not grant the customer any license to Vertiflex’s intellectual property, including without limitation any patents, trademarks, trade names, and copyrights.
- Except as expressly stated in the full Terms & Conditions, (a) Vertiflex does not make any representations or warranties regarding the products, and (b) Vertiflex is not responsible for any losses or damages caused by the use of the products by customer.
- Additional terms and conditions may apply outside the United States.
Terms & Conditions:
ALL SALES MADE BY VERTIFLEX, INC. (“VERTIFLEX”) TO THE CUSTOMER ARE EXPRESSLY CONDITIONED ON THE CUSTOMER’S ACCEPTANCE OF THE TERMS AND CONDITIONS SET FORTH HEREIN. THESE TERMS AND CONDITIONS CONSTITUTE THE ENTIRE AGREEMENT BETWEEN VERTIFLEX AND THE CUSTOMER AND SUPERSEDE ALL PREVIOUS NEGOTIATIONS, DISCUSSIONS AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF. VERTIFLEX WILL NOT BE BOUND BY ANY TERMS OF THE CUSTOMER’S PURCHASE ORDER OR OTHER DOCUMENTS THAT ARE ADDITIONAL OR INCONSISTENT WITH THE TERMS HEREIN AND ALL SUCH TERMS SHALL BE EXCLUDED.
Ordering and Payments: All sales are conditioned upon the customer’s unqualified acceptance of the terms and conditions set forth herein, which may be made by written acceptance or by receipt by the customer of delivery of any products. All orders to purchase products shall be made in writing referencing these terms and conditions. No order to purchase product shall be binding upon Vertiflex until accepted by Vertiflex in writing, and Vertiflex shall have no liability to the customer with respect to orders that are not accepted. Product is invoiced upon date of acceptance of the order, and no later than the date of implantation in a patient for implant products. Net payment is due within 30 days from the date of invoice. Any unpaid due amounts will be subject to interest at 1.5% per month, or, if less, the maximum rate allowed by law. Payments will be credited first to interest due on past due amounts, and then to the underlying invoiced amount. If Vertiflex undertakes collection or enforcement efforts, the customer shall be liable for all costs thereof, including attorney’s fees. The customer will make payments in United States dollars by check or wire transfer to an account designated by Vertiflex. Prices are subject to change without notice. All orders are subject to credit approval. Until the purchase price and all other charges payable to Vertiflex have been received in full, Vertiflex shall retain, and the customer hereby grants to Vertiflex, a purchase money security interest in the products delivered to the customer and any proceeds therefrom, in the amount of the purchase price therefore. The customer agrees to promptly execute any documents requested by Vertiflex to document, perfect and/or protect such security interest. Any taxes or duties shall be paid by the customer. If Vertiflex is required to prepay any such fee the customer will reimburse any fees paid. No product credit shall be available for use if a past due balance is outstanding on the account. Any product credit not used within 6 months of the date of issue shall expire.
Shipments: Shipment schedules will be given at the time of order based on current conditions. All shipments will be F.O.B. Vertiflex’s shipping point, unless otherwise agreed in writing by Vertiflex, and at the time of delivery by Vertiflex all risk of loss and title shall pass to the customer. Vertiflex assumes no responsibility or liability for unforeseen delays in delivery. Unless shipping instructions are provided or otherwise specified by Vertiflex, orders will be shipped 2nd day delivery. All freight, insurance and other shipping expenses from Vertiflex’s shipping point will be borne by the customer. The customer will be responsible for inspecting all products received. In the event of shortages or damaged goods, a written notice must be given to Vertiflex upon receipt of shipment at customer’s facility. If the customer fails to promptly notify Vertiflex in writing of its rejection and reasons therefore, the customer will be conclusively deemed to have irrevocably accepted the products, except as set forth under “Limited Warranty and Limitation of Liability” below.
Returned Goods Policy: Returned goods are subject to a 15% handling charge. A returned goods authorization number must accompany any returned products and must be marked on the outside of the shipping container. These numbers are available through the Customer Service Department. All returns should include the following: Catalog number, product description, original price paid, Copy of original invoice, Reason for return, and Returned Goods Authorization # (RGA). Except as expressly provided herein, the customer shall not have the right to return products to Vertiflex without Vertiflex’s prior written consent.
Non-returnable items are: Products that have been removed from their original packaging, implanted in a patient or have otherwise come into contact with a patient, in customer’s possession longer than 90 days from the date of invoice, obsolete or expired, or that have been damaged, altered (including with respect to packaging or labeling), misused or otherwise deemed unsaleable by Vertiflex.
Patent Information: The products are covered by various US and foreign patent applications owned or licensed by Vertiflex.
Vertiflex retains all proprietary rights in and to all designs, engineering details and other technology and information pertaining to the products. The sale of products hereunder does not grant to, convey or confer upon the customer or its customers, or upon anyone claiming under the customer, a license, express or implied, under any patent right, copyright or other intellectual property right of Vertiflex covering or relating to the products.
Trademark Information: Vertiflex and the “X” logo are trademarks of Vertiflex. Vertiflex owns or licenses all right, title and interest in and to product trademarks, and other identifying marks and any associated good will (“Trademarks”). Vertiflex does not grant, and the customer shall not receive, any right, title or interest in or to any of the Trademarks. Furthermore, Vertiflex retains all proprietary rights in and to all designs, engineering details, and other technology and information pertaining to its products. The products are offered for sale and are sold subject in every case to the condition that, such sale does not convey any license, expressly or by implication, to manufacture, duplicate, or otherwise copy the products.
Limited Warranty and Limitation of Liability:
Vertiflex warrants to the customer that the product when delivered will be free from defects in material and workmanship for the longer of a period of one (1) year from the date such product is delivered to the customer or the minimum period required by law, provided that the product is used in accordance with the product label and all product documentation, and Vertiflex makes no warranty (express, implied or statutory) for products that are modified or subjected to unusual physical or chemical stress, misuse, improper operation, neglect, alteration, improper installation, improper repair, improper testing, use in combination with any tools or equipment other than with those for which the products were designed, use in any manner or medical procedure for which products are not indicated and/or wear and tear of the products whether normal or from mishandling or misuse.
EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, VERTIFLEX MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE, IN ANY COMMUNICATION OR OTHERWISE, REGARDING THE PRODUCTS, AND VERTIFLEX SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE OBLIGATIONS OF VERTIFLEX UNDER THE LIMITED WARRANTY SET FORTH ABOVE ARE EXPRESSLY IN LIEU OF, AND THE CUSTOMER EXPRESSLY WAIVES, ANY OTHER LIABILITY OF VERTIFLEX WITH RESPECT TO THE PRODUCTS, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENT PRODUCT DESIGN, MANUFACTURE, TESTING OR FAILURE TO WARN), BREACH OF WARRANTY OR OTHERWISE. Specifically, because Vertiflex has no control over the conditions under which products are used, the diagnosis of the patient, the skills of the user or the methods of administering or handling the products after they leave Vertiflex’s possession, Vertiflex expressly does not warrant either a beneficial effect or against an ill effect following the use of any product.
In the event that any product fails to conform to the warranty set forth above, Vertiflex’s sole and exclusive liability and the customer’s exclusive remedy shall be, at Vertiflex’s sole option and election, to repair or replace the product, or to credit the customer’s account for the amount actually paid for any such product net of any discounts or rebates, provided that (i) the customer promptly notifies Vertiflex in writing by certified or registered mail, return receipt requested, of such alleged defect and (ii) such product is returned, shipping prepaid, to Vertiflex in San Clemente, California, or as otherwise designated in writing by Vertiflex. Vertiflex will make the final determination of the existence and cause of any defect. If such product fails to so conform with the warranty, Vertiflex will reimburse the customer for the actual and reasonable shipment charges for return of the nonconforming product. Any election by Vertiflex to repair or replace any product or to credit the customer’s account therefore is not an admission that the product or any part thereof is defective or fails to conform to any warranty, or that Vertiflex has any legal responsibility to make such repair, effect such replacement or provide such credit. The customer is limited to the remedies set forth herein.
Vertiflex will not be liable for any loss, damages or penalty resulting from delay in delivery when such delay is due to causes beyond the reasonable control of Vertiflex, including but not limited to, supplier delay, force majeure, act of God, labor unrest, fire, explosion or earthquake. In any such event, the delivery date will be deemed extended for a period equal to the delay. IN NO EVENT SHALL VERTIFLEX BE LIABLE FOR LOST PROFITS, COST OF COVER OR ANY OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL OR RELIANCE DAMAGES WITH RESPECT TO THE PRODUCTS, THEIR USE OR LOSS OF USE, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND THE CUSTOMER EXPRESSLY WAIVES SUCH LIABILITY. IN ADDITION, TO THE EXTENT ALLOWABLE BY LAW, VERTIFLEX’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO SALE OF THE PRODUCTS SHALL IN NO EVENT EXCEED THE PRICE PAID BY THE CUSTOMER FOR THE PRODUCTS GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
This limited warranty provided herein applies only to products sold by Vertiflex to customers in the United States. Customers outside the United States should contact their Vertiflex representative for exact terms of the limited warranty applicable to them.
Prior to use of the products, the customer should carefully read the package insert(s) for labeling limitations, indications, contraindications, risks, warnings, precautions, potential adverse events and other important information. Vertiflex is not responsible for any failure by the customer to comply with the package insert.
With the exception of certain instruments which are reusable, the products are intended for single (one-time) use only. Do not re-implant the products into another patient. Even though the product may look undamaged, previous use in a patient can damage the product, potentially leading to patient injury. Vertiflex is not responsible for the performance of any disposable or single use product that has been reused.
The customer shall defend, indemnify and hold harmless Vertiflex from and against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) in connection with any third party claims, suits or proceedings arising out of or relating to the use of the products, unless caused by the sole gross negligence or willful misconduct of Vertiflex.
The customer shall procure and maintain in force commercial general liability insurance including property damage, bodily injury, products liability and contractual liability, in the minimum amount of $1,000,000 per occurrence and $3,000,000 in the aggregate, to cover the customer and Vertiflex for any liability related to the use of Vertiflex’s products.
The products supplied hereunder are for use by the customer and except as explicitly permitted pursuant to a distribution agreement between the parties, shall not be resold. The customer will use the products in compliance with all applicable laws and regulations.
These terms and conditions shall be governed by and interpreted in accordance with the laws of the State of California without reference to conflicts of law principles. Any dispute arising out of these terms and conditions shall be brought in, and the parties consent to personal and exclusive jurisdiction of and venue in, the state and federal courts within Orange County, California.
Last Updated: September 30, 2018