1. Application. These Standard Terms and Conditions (herein the “Terms”) apply to the transaction between the buyer (herein the “Customer”) and seller, as described on the attached purchase order. The seller is referred to herein as “ES” and may be either Entellus Medical, Inc. or its subsidiary Spirox, Inc. as specified on the purchase order. These Terms will prevail over any contrary or inconsistent terms or conditions contained in any prior or subsequent purchase order, estimate, shipment, or invoicing document of either party (herein collectively the “Related Purchase Documents”).
As used herein, the terms:
(a)“Product” or “Products” refer to any products that are sold, distributed, rented, leased, or otherwise supplied to Customer by ES;
(b)“Biomaterial Product” refers to XeroGel or LATERA Products that are sold, distributed, or otherwise supplied to Customer by ES;
(c)“Capital Equipment” refers to the Fiagon® ENT sinus navigation system, the Entellus Medical shaver system, or the Entellus wireless camera system products that are sold, distributed, or otherwise supplied to Customer by ES; and
(d)“Services” refers to services sold or provided to Customer by ES.
2. Purchase Orders. Customer will submit (directly or to an ES sales representative) purchase orders for the Products or Services by mail, telephone, facsimile, or e-mail to the following address, telephone number, facsimile number and/or e-mail address:
3600 Holly Lane North, Suite 40
Plymouth, Minnesota 55447
Each purchase order shall identify the Products or Services ordered, the quantity requested, requested delivery dates, and the instructions and address for shipping or delivery. All purchase orders are subject to acceptance by ES, which acceptance shall be confirmed by ES’s providing Customer a confirmation order number. Each purchase order, upon acceptance, shall give rise to a contract for the purchase of the applicable Products and Services under these Terms.
3. Price and Payment. All prices quoted in any Related Purchase Document are subject to change without notice from ES. ES will invoice Customer at the time of shipment for the purchase price and all freight charges, handling, and taxes (if Customer is not tax-exempt).
Payment terms are net thirty (30) days unless stated otherwise on the applicable invoice. A finance charge may be assessed on all unpaid balances over thirty (30) days equal to the lesser of 1½% per month and the maximum amount allowed by law. Customer agrees to pay any collection expenses, including reasonable attorneys’ fees and expenses, incurred by ES to secure payment of any sums due from Customer and/or to re-possess Products.
4. Security Interest. Customer hereby grants to ES a security interest in any Products not fully paid for and all proceeds therefrom, including insurer and other third-party payments for damage to or loss of said Product, to secure payment of the entire purchase price for said Product and to secure all related costs and expenses payable by Customer to ES.
5. Shipping Terms. All Products purchased by Customer will be shipped “free carrier” from ES’s facilities or the facilities of ES’s logistics partners (i.e., ES will deliver the Products to a common carrier at which time title to the Products shall transfer to Customer). Any claims of non-conformity with the applicable purchase order must be submitted by Customer to ES within seven (7) days of delivery, after which the Customer will be deemed to have waived any rights to a refund or replacement based on such non-conformity.
6. Intellectual Property. ES retains all right, title and interest in all its intellectual property but grants to Customer a non-exclusive, non-transferable, non-sub-licensable, perpetual, limited license to such intellectual property solely for use of the Products that Customer has purchased from ES. Customer has no right, title or interest in any such intellectual property and shall not copy, reproduce, reverse engineer, decompile or disassemble, in whole or in part, the Product or any component thereof. For any Products labeled as single use, any Products labeled as disposable, or any Biomaterial Product, Customer has no right to re-process, re-sterilize, re-use in more than the initial patient.
7. Limited Warranty. The warranty terms specific to each of Capital Equipment and Biomaterial Products are recited below in subsections (a) and (b) of this Section 7, respectively, while the warranty terms specific to all other Products are recited in the below subsection (c) of this Section 7. Subsection (d) of this Section 7 provides warranty terms applicable to all Products, including Capital Equipment and Biomaterial Products.
(a)Capital Equipment. Capital Equipment shall be covered by the manufacturer’s original warranty (herein the “Manufacturer’s Warranty”).
(b)Biomaterial Products. ES warrants that any Biomaterials Product will be free from defects in material and workmanship for a period of ninety (90) days from date of delivery, provided that the Biomaterials Product is stored in accordance with its instructions or specifications.
(c)All other Products. For any Products that are not Capital Equipment or Biomaterials Products, ES warrants that reasonable care has been used in the design and manufacture of the Product. ES’s obligation under this limited warranty is restricted, at ES’s option, to the repair or replacement
of the Product for a period of twelve (12) months from the date of purchase using commercially reasonable efforts within a reasonable period of time and providing that the Product in question has not expired.
(d)Additional warranty terms. In each case, the applicable warranty specified above in subsections (a)-(c) of this Section 7:
(i)is in lieu of and exclude all other warranties not expressly set forth herein, whether expressed or implied, written or oral, by operation of law or otherwise, including, but not limited to, any warranties of merchantability, warranties of fitness for a particular purpose, or warranties arising from a course of dealing, usage, or trade;
(ii)shall not extend to any abuse or misuse of the Capital Equipment, Biomaterial Product, or other Product, including, without limitation, any off-label use, accident to or neglect of the Product, failure to follow any instructions or specifications provided by ES (including, without limitation, any re-use, re-processing or re-sterilization of a Product not in accordance with such instructions or specifications), in each case whether caused or carried out by Customer or by any third party;
(iii)shall only be honored upon receipt of full payment for the Capital Equipment, Biomaterial Product, or other Product in accordance with the payment terms agreed to by ES and Customer;
(iv)shall not be extended by any repair or replacement of the Capital Equipment, Biomaterial Product, or other Product; and
(v)shall be null and void for any Capital Equipment or other Products that are repaired, modified, or altered by any person or entity other than ES or the manufacturer.
8. Return Policy. The return policy specific to each of Capital Equipment and Biomaterial Products are recited below in subsections (a) and (b) of this Section 8, respectively, while the return policy specific to all other Products are recited in the below subsection (c) of this Section 8.Subsection (d) of this Section 8 details the procedure that must be followed for returning all Products, including Biomaterial Products.
(a)Capital Equipment. Capital Equipment may not be returned for any reason. If Capital Equipment is broken or damaged, ES may repair or
replace the Capital Equipment pursuant to the Manufacturer’s Warranty or any service plan that Customer may have purchased for the Capital Equipment. ES also offers certain repair services for Capital Equipment that has suffered some form of damage that is not covered by the terms of the Manufacturer’s Warranty or a service plan. Customer may request that ES install and set up a Fiagon Sinus Navigation System and shall allow ES’s representative access to the Fiagon System to remedy any installation issues.
(b)Biomaterial Products. Biomaterial Products are made from a temperature- sensitive material that prevent Entellus from accepting returns due to quality control issues. Instead, Customer may exchange Biomaterial Products if they have a defect covered by a warranty and the Customer requests the exchange during the applicable warranty period.
(c)All other Products. For any Products other than Capital Equipment and Biomaterial Products, Customer may return unopened and undamaged Products to ES for account credit, less a 15% restocking fee, provided the Products are returned within forty-five (45) days of the date of invoice. Customer may not return any opened Products but may exchange them if the Products have a defect covered by a warranty and the Customer requests the exchange during the applicable warranty period.
(d)Return and Exchange Procedure and Additional Return Terms. To return or exchange an eligible Product, Customer must first request from ES a Returned Materials Authorization (“RMA”). ES will provide Customer with a RMA form showing the products being returned. Customer must return the Product to ES in accordance with any shipping instructions provided by ES, with the RMA number clearly marked on the shipping container, and with a copy of the RMA form in the shipping container.
9. Indemnification. Each party (the “Indemnifying Party”) will defend, indemnify and hold harmless the other party (the “Indemnified Party”), its affiliates, and its and their officers, directors, employees and agents from and against all third-party losses, damages, expenses (including reasonable attorneys’ fees and expenses), claims, suits and liabilities actually incurred by the Indemnified Party to the extent caused by the Indemnifying Party’s (or any of its officers’, directors’, employees’, or agents’) off-label use of the Product, gross negligence, or willful misconduct.
10. Limitation of Liability. In addition to any limitations of liability provided elsewhere in these Terms, in no event will either ES or Customer be liable to the other for loss of profit, goodwill or other indirect, incidental, special or consequential or other similar damages arising out of these Terms, arising out of any Related Purchase Document, or arising from the use of any Product. ES neither assumes, nor authorizes any other person to assume for it, any other or additional liability or responsibility for the Products except for those explicitly stated herein.
11. Miscellaneous. Customer and ES agree to be bound by these Terms. Customer may not assign its rights or obligations under these Terms without ES’s prior written consent and any such assignment without consent will be void. Neither ES nor Customer is liable for failure or delay in fulfilling its obligations hereunder due to causes beyond its control except for Customer’s obligation to pay invoices. These Terms are governed by the laws (but not the law of conflicts) of the State of New York. The sole venue for litigating any disputes under these Terms shall be a court of competent jurisdiction situated in Minnesota and both the Customer and ES hereby consent to such jurisdiction. If any provision of these Terms is held invalid or unenforceable, the remainder will not be affected and will be enforced to the greatest extent permitted by law. No amendment, modification or waiver of these Terms is binding upon either party unless approved in writing by both parties. Failure or delay by either party to enforce compliance with these Terms shall not constitute a waiver hereof.