These terms and conditions constitute the entire agreement between Alphatec Spine, Inc. (“Seller”) and the buyer (“Buyer”) identified in the Purchase Order ("Order") with respect to the products listed in the Order (“Products”) and any services listed in the Order (“Services”), unless Buyer has a current executed agreement with Seller applicable to the sale of such Products and/or Services, in which case the terms of that agreement shall govern the Order.
2. SHIPPING AND PAYMENT
2.1. Shipping, Title, and Loss. The Buyer shall assume the risk of loss for Product as soon as it leaves a Seller facility (Ex works origin). Late delivery alone shall not constitute a nonconformity for which Buyer may reject Product. Title for Products will remain with Seller until sold to the Buyer. Buyer shall pay for any Product that has been delivered to the Buyer.
2.2. Inspection. Within forty-eight hours of receipt, Buyer shall inspect the Products to resolve any discrepancies, damage, or malfunctions. If Buyer does not notify Seller of any such issues in the Products within forty-eight hours, the Products shall be deemed adequate.
2.3.Payment Terms. The Buyer shall pay all invoices delivered to it within 30 days of delivery. Amounts that are not subject to a good faith dispute that remain unpaid after its due date are subject to a late payment charge of one percent (1%) per month until fully paid. The Buyer will keep Seller updated with respect to appropriate contacts and procedures for invoice payment. Any extraordinary costs that Seller is required to incur in order to invoice the Buyer shall be borne by the Buyer. Seller is entitled to recover from Buyer its collections costs including without limitation collection commission, court or alternative dispute costs, and reasonable attorneys’ and expert witness fees, incurred in collecting amounts owed by the Buyer.
2.4. Taxes. The Price List does not include any taxes. If the Buyer has not provided documentation of its tax-exempt status, Seller may invoice the Buyer for any tax that Seller is required by law to pass through or collect from a purchaser of Products. The Buyer is solely responsible for all taxes and government fees applicable to its purchase, possession, or use of Products.
3. RETURN, LIMITED WARRANTY, SPECIAL TERMS & RECALLS
3.1. Product Returns. All sales are final upon the earlier of: (a) acceptance by Seller of an order; (b) use of the Product; or (c) loss, damage, spoilage, or waste of the Product. Seller’s return policy may be found at https://atecspine.com/product-return-policy/.
3.2. Limited Product Warranty. Seller’s “Limited Product Warranty” may be found at https://atecspine.com/limited-product-warranty/.
3.3.Product Complaints and Records. Buyer shall promptly (preferably within 24 hours) notify Seller through its customer service contacts of any complaint regarding the identity, durability, quality, reliability, safety, effectiveness, or performance of the Products (including instrumentation and disposables). Both Parties will comply with applicable law with respect to record-keeping on Products sold, used, and disposed of and the Buyer’s records will include part numbers and lot numbers. Buyer will make such records available to Seller upon request.
4. PROTECTED HEALTH INFORMATION
Seller will operate in compliance with applicable law with respect to the protection, limited use, and breach notice of protected health information and applicable identity theft protection laws.
5. TRADEMARKS AND NONDISCLOSURE OF CONFIDENTIAL INFORMATION
5.1.Ownership of Seller’s Marks. Buyer acknowledges that Seller is the sole owner of any and all intellectual property, including trademarks (the “Marks”), embodied by or applied to the Products and all rights and goodwill associated with or arising from the Marks, and Buyer shall not do anything inconsistent with such ownership. All uses of the Marks by Buyer and all rights and goodwill associated with or arising from the Marks shall inure to the benefit of and on behalf of, and be owned solely by, Seller. Buyer shall not challenge the validity of any right, title or interest of Seller in and to the Marks. Buyer agrees that it will not adopt, use, or register any name, trade name, or trademark that is identical, substantially identical, deceptively similar, or confusingly similar to the Marks. Buyer shall acquire no right, title, or interest of any kind or nature whatsoever in or to the Marks or any goodwill associated with or arising from the Marks, and Buyer shall have no right to file for any patent or any other intellectual property protection regarding the Marks. Seller reserves all rights in and to the Marks not expressly granted to Buyer under this Agreement. Buyer shall not modify, unpackage, repackage, damage, or alter in any way any Product or its packaging. Buyer shall not change, alter, or modify any printing or labeling and shall not apply stickers or labels of any kind on the containers or other packaging in which Seller supplies Products incident to the Order without the prior written consent of Seller.
5.2. Except as required by law, Buyer shall not disclose to a third party the terms of the Order, including pricing and negotiations, or issue any public statement regarding the Order without the Seller’s written consent. Seller hereby consents to the disclosure of pricing to third parties solely for the purposes of providing services to the Buyer related to the Order, including benchmarking services provided that Seller’s identity is not disclosed to such third party and the information is not used for the benefit of any other Party including a competitor of Seller.
6. LIMITATION OF LIABILITY
6.1. Type of Damages. Neither Party shall be liable under the Order for special, punitive, indirect, lost profits, lost income, loss of business opportunity, avoidable or unforeseeable losses or damages. Neither Party shall be liable for breach-of-contract or tort damages that are remote or speculative, or the non-breaching Party could not have reasonably foreseen by accepting the Order. Seller shall not be liable for any cover remedy, losses, damages, penalties, and expenses other than the actual reasonable costs of expedited shipping or delivery for the purchase of alternative Products due to Seller’s failure to make timely delivery of an accepted order, offset by any savings as a result of the purchase of the alternative Products.
6.2. Total Damages. Each Party’s total liability arising out of or related to the Order shall not exceed two times the amounts paid for Products and related services to Seller by the Buyer in the 24-months preceding the initial event which gave rise to liability.
6.3. Exclusions. Nothing in the Order is intended to exclude or limit either Party’s liability for: (a) death or personal injury; (b) malpractice, gross negligence, malice, recklessness, fraud, intentional misrepresentation, and strict liability; (c) providing an express warranty remedy; (d) violations of applicable law; (e) any implied terms which by law cannot be excluded; or (f) any liability that cannot by law be excluded or limited.
7.1.Written Changes Only. No waiver of any provision of these terms and conditions shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver of any provision of these terms and conditions shall be binding unless executed in writing by both Parties.
7.2.Law and Venue. The validity, construction, and enforcement of the Order and these terms and conditions shall be governed by the laws of the state of California.
7.3.Binding Agreement; No Assignment. The Order and these terms and conditions shall be binding upon and shall inure to the benefit of the Parties to it and their respective legal representatives, successors, and assigns. Neither Party may, in whole or in part, assign any rights derived from the Order, nor may they delegate any of the duties to be performed hereunder without the prior written consent of the other Party.