These Terms and Conditions (“Terms”) establish the rights and obligations of StimLabs LLC’s (“StimLabs” or “Manufacturer”) provision of products (“Products”) to its customers (referred to individually as “Customer”) and the facilities Customer owns, manages or controls (referred to herein as “Facility” or “Facilities”).These Terms apply unless otherwise specified in a separate written agreement signed by an officer or duly authorized representative of StimLabs or as otherwise specifically set forth herein. These Terms may be revised or updated at any time, with or without notice, at StimLabs’ sole discretion. Such revision or update shall be effective upon the posting of the modified Terms on StimLabs’ website at www.stimlabs.com.
1. Orders and Shipping
A. Requests for StimLabs Products (“Orders”) will be submitted to StimLabs through telephone orders placed by StimLabs’ sales representative. StimLabs will ship orders to Customer at the location on file with StimLabs’ Customer Service or as otherwise designated in writing by the Customer. The date on which StimLabs’ sales representative enters the order into the StimLabs order management system is the “Order Date”. StimLabs will ship all orders within a minimum of two (2) business days of the Order Date, provided that quantities are reasonable and available at the time of the order.
B. Title to Products and risk of loss of Products shall pass to Customer upon shipment by StimLabs to the location on file with StimLabs’ customer service or the location designated by the Customer in writing. Receipt of the Order by Customer will be considered Customer’s acceptance of the order. Customer will have three (3) business days after receipt to inspect the contents of the order and notify StimLabs of any damage, non-conformance or missing products, at which time StimLabs will review Customer’s notice.
C. Shortages, overages or other discrepancies in the order must also be reported to StimLabs within three (3) business days of Customer’s receipt of Product.
D. Any Products offered by StimLabs for office-based accounts wherein title does not pass to Customer upon shipment by StimLabs must be stored in proper conditions and may be held by the Customer for no more than 45 days, at which point the Products must be returned to StimLabs pursuant to Sections 5 and 6 below. Failure to return Product(s) after 60 days shall result in the issuance of an invoice and the Terms of this agreement applicable to invoicing and payment terms shall apply. Customer shall use a first-expiring first-out process for such Products.
E. Any and all Products shall be used solely for application to patients of Customer in the United States. Distribution, redistribution, transshipment, freight forwarding, and exportation of Products is not authorized by StimLabs and is cause for immediate termination of any agreement with StimLabs.
2. Pricing
A. Prices for Products shall be at the price currently offered by StimLabs on the Order Date, or at the applicable contracted price specified in a written agreement signed by Customer and StimLabs. StimLabs shall use reasonable efforts to provide notice of change in pricing, if any, but reserves the right to revise pricing in its sole discretion, unless otherwise agreed to in writing. StimLabs may change the specific Product availability (either by adding or removing Products) and shall use reasonable efforts to provide Customers with notice of any such change. Customers are responsible for any and all taxes however designated in connection with a Product purchase (except for any taxes based on StimLabs’ income).
B. Absent a separate written agreement, the price as reflected on the invoice is net of taxes required to be collected by StimLabs and any discount or other reduction in price. Notice is hereby provided that the net price and discount may be reportable under federal regulations set forth at 42 C.F.R. § 1001.952(h) (the “Discount Safe Harbor”) and Customer agrees that it shall fully and accurately report any discount received by Customer as required by the applicable regulations set forth in the Discount Safe Harbor.
3. Payment Terms and Responsibilities
A. Payment shall be due on or before the thirty (30) days from the date of StimLabs’ invoice, absent an express agreement with StimLabs extending the payment date. Customers shall have thirty (30) days following receipt of invoice to dispute any alleged errors in the invoice. Disputes made following such period shall be deemed waived by the Customer.
B. StimLabs may assess a late payment charge of 1.5% per month (but in no event, more than the maximum amount permitted by law) to any amount for which payment is not received by the due date. Customer shall be responsible for any and all costs incurred by StimLabs, including without limitation, attorneys’ fees, fees of collection agents, and related costs and expenses, in collecting amounts due from Customer to StimLabs.
C. StimLabs reserves the right, in its sole discretion, to suspend deliveries to any Customer who has accounts receivables outstanding for more than ninety (90) days.
D. Customer is solely responsible for payment to StimLabs for the purchase price for all Products ordered. In no event shall Customer’s payment to StimLabs be contingent on insurance reimbursement by any governmental or third-party payor and any representation to such effect shall be null and void.
E. Customer shall be solely responsible for obtaining reimbursement, if any, from Medicare, Medicaid or any other third-party payor for amounts paid to StimLabs for Products ordered by Customer. Customer shall further be solely responsible for obtaining all information and documentation necessary to bill and collect from any payor pursuant to the requirements of such payor.
F. In the event StimLabs makes available insurance verification (“IVR”) services to Customers, such services shall apply solely for StimLabs’ Products. Customer must comply with all requests made by the IVR Team in order to be eligible for Product credits.
G. Credit issued by StimLabs shall expire if not used within 180 days of issuance.
4. Limited Warranty, Product Recalls
A. StimLabs warrants to Customer that the Product shall (i) comply with and perform in accordance with StimLabs’ written specifications for the Product and (ii) be produced, labeled and packaged in compliance with all applicable Federal and State laws and regulations in effect as of the date of delivery to the Customer. Customer’s exclusive remedy and StimLabs’ sole liability under this warranty shall be to replace any non- complying Product, or at StimLabs discretion, to refund the purchase price paid by Customer. StimLabs’ warranty as expressed herein shall not apply to Products which have been (a) subject to abuse, misuse, or mishandling, (b) modified or altered by anyone other than StimLabs, (c) subject to applications, environments, or other conditions not intended or recommended by StimLabs, (d) improperly stored, transported or applied, (e) used for any purpose not consistent with the Food and Drug Administration (“FDA”) regulations and not specified on the Product’s labeling or as otherwise permitted by applicable law, or (f) had its identification markings altered or removed. EXCEPT AS EXPRESSLY PROVIDED HEREIN, STIMLABS MAKES NO OTHER WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY, ARISING BY CUSTOM, TRADE USAGE OR COURSE OF DEALING, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND STIMLABS HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
B. In the event of a recall, whether directed by the FDA or undertaken voluntarily by StimLabs, StimLabs shall, at Customer’s discretion, either replace the Product, if possible, or refund all amounts paid by Customer for the applicable Product subject to the recall and held by Customer as of the first day of the recall. Customer shall cooperate with StimLabs in effecting such recall as StimLabs may reasonably request, including (a) the return of any recalled Product to StimLabs at StimLabs’ sole cost and (b) information pertaining to patient usage and related information required for StimLabs to comply with all Federal and State recall or withdrawal requirements.
5. Product Returns
A. Subject to Section 5.E., StimLabs will issue a credit or replacement to Customer for unused Product returned in accordance with the Terms set forth herein. Unused credits will expire if not used within 180 days of issuance.
B. StimLabs will issue a replacement for Product shipped to Customer that is damaged during shipment and Product that is unusable for reasons related to Product complaints consisting of package integrity and product quality or appearance. To qualify for a replacement, Products must be returned unused and accompanied by the original packaging.
C. Subject to Section 5.E, StimLabs will accept returns of Products ordered in error only if Customer notified StimLabs of the alleged error in writing within thirty (30) calendar days of Customer’s receipt of Product shipment.
D. Subject to Section 5.E., Customer may, within thirty (30) days from the original invoice date, return Product for a full refund subject to verification of product package and label integrity (free from damage/adulteration) as well as verification (including acceptable documentation) of maintenance of proper storage conditions according to product labeling.
E. StimLabs will not be responsible for Product that is not returned together with its original packaging and/or not bearing its original label; Product that has deteriorated due to circumstances beyond StimLabs’ control, including without limitation, improper storage, fire, flood or natural disaster; Product that has a remaining shelf-life of less than six (6) months; and Product discarded by Customer.
F. All returns must be issued a pre-approved Return Goods Authorization number (RGA#) before shipment to StimLabs. The RGA number may be obtained by contacting StimLabs Customer Service at 888-346-9802 or customerservice@stimlabs.com.
6. Return Goods Process
A. Customer must contact Customer Service to obtain a Return Goods Authorization (“RGA”) form and a shipping return label within the time periods set forth above. Customer must return any Product subject to return to StimLabs within twenty (20) days of RGA along with the Product and a copy of the RGA.
B. Customer account will be credited upon StimLabs’ verification of the Product and RGA match and a quality verification of Product packaging and label integrity; maintenance of proper storage conditions and a remaining shelf-life of at least six months at the time for Product return. If any Product is returned without an RGA or if the returned Product doesn’t match the RGA issued, that returned Product will be considered unauthorized and no credit will be issued.
7. Indemnification
Customer shall defend, indemnify and hold harmless StimLabs and its respective members, directors, officers, employees and agents from and against any liabilities to and claims by third parties for an injury to persons or property or any other claims of injury, loss, expense or damage not caused by the gross negligence or other wrongful conduct of StimLabs, arising out of (a) the Customer’s use of StimLabs’ Product and (b) any actual or asserted violation of federal, state, or local law or regulation by Customer in connection with Customer’s use of Product.
8. Force Majeure
Notwithstanding anything to the contrary, StimLabs shall not be responsible or liable for any loss, damage, delay or failure to perform in whole or in part resulting from causes beyond StimLabs’ reasonable control, including without limitation, acts of God, war, fires, strikes, lockouts, work stoppage or other labor difficulties, riots, embargos, acts of civil or military authorities, quarantine restrictions, pandemics, endemics or other declared public health emergencies, carrier conditions, delays in transportation or any other case of Force Majeure.
9. No Relationship
These Terms do not create and shall not be deemed to create a relationship of partners, joint venturers, associates or principal and agent between the Customer and StimLabs, and the Customer and StimLabs acknowledge that they are each acting as principals hereunder. Nothing in these Terms, their provisions or the transactions, obligations and relationships created hereby shall, in and of itself, create an agency, or employee or other legal representative relationship for any purpose whatsoever. Customer shall not hold itself out as having any such relationship to StimLabs.
10. Limitation of Liability/Exclusive Remedy
STIMLABS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, REGARDLESS OF WHETHER STIMLABS HAS RECEIVED NOTICE OF THE POSSIBLITY OF SUCH DAMAGES. STIMLABS’ AGGREGATE LIABILITY FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE FROM ANY CAUSE WHATSOEVER RELATING TO OR ARISING UNDER THESE TERMS SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE QUANTITY OF THE SPECIFIC PRODUCT DIRECTLY GIVING RISE TO THE LIABILITY.
11. Intellectual Property
Customer agrees that StimLabs retains all right, title and interest in and to all patents, trademarks, trade names, inventions, copyrights, know- how and trade secrets relating to the Products as well as the design, processing, manufacture, operation or services of the Products. Customer agrees that in its use of the Product, it will not remove, alter, cover or in any way obfuscate the intellectual property noticed placed on the Product by StimLabs.
12. Compliance with Laws
Customer and StimLabs agree to comply with all applicable statutes, rules and regulations of any governmental authority, including (without limitation) laws and regulations related to privacy, fraud and abuse, or physician self-referral.
13. Governing Law; Venue
These Terms are governed by and shall be construed in accordance with the laws of the State of Georgia without reference to its choice of law rules. Disputes arising in connection with these Terms shall be brought in a state or federal court located in Fulton County, Georgia and each party irrevocably submits to the exclusive jurisdiction of, and venue in, the state and federal courts located in Fulton County.
14. Entire Agreement
These Terms set forth the entire agreement between StimLabs and Customer concerning the subject matter hereof and supersede all prior and contemporaneous written and oral negotiations and agreements between them concerning the subject matter hereof. Except as herein provided, modifications of these Terms must be in writing and signed by both parties. Any different, conflicting or additional terms in a purchase order, invoice, confirmation, or other writing or communication from Customer are superseded by these Terms and shall be of no force or effect. Notwithstanding the foregoing, in the event of a conflict between the Terms and the provisions of a signed, separate written agreement between StimLabs and Customer, the terms and conditions of the signed agreement shall control so long as such agreement remains in place.
15. Non-waiver
The waiver from time to time by StimLabs of any of its rights or its failure to exercise any right or remedy shall not operate or be construed as a continuing waiver of same or of any other of StimLabs’ rights or remedies provided herein. No waiver by StimLabs of a particular provision, right or remedy shall be effective unless in writing and signed by an authorized representative of StimLabs.
16. Successors and Assigns
These Terms shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. Neither party shall have the right to assign the rights and obligations under these Terms without the prior written consent of the other party.
17. Severability
If any provision of these Terms are held to be illegal, invalid or unenforceable under present or future law effective during the term hereof, such provision shall be fully severable and these Terms shall be construed and enforced as if such illegal, invalid or unenforceable provision never comprised a part hereof, and the remaining provisions hereto shall remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its severance here from.
18. Notices
Any notice required or permitted by these Terms shall be in writing and delivered by the following means and effective as follows: (a) upon receipt if delivered by personal delivery; (b) by reputable overnight delivery courier upon verification of receipt; (c) by telecopy or facsimile transmission upon confirmation of receipt; or (d) by certified or registered mail, return receipt requested, upon verification of receipt. All notices to StimLabs must be sent to the corporate offices at 1225 Northmeadow Parkway, Suite 104, Roswell, Georgia, 30076 and to the Customer at the address StimLabs has on file with Customer Service, or as otherwise agreed to in writing by the parties.
19. Confidential Information
Customer agrees to protect all confidential information received by Customer from StimLabs to the same extent it protects its own confidential information and in no event, less than a reasonable standard of care. Customer shall neither disclose, nor use for Customer’s own benefit, such confidential information except as necessary to lawfully use StimLabs’ Products. These obligations shall not apply to disclosures required pursuant to a demand from a governmental agency or pursuant to a legally required disclosure; provided, however, Customer shall provide StimLabs with prior written notice of any such demand or disclosure and provide StimLabs with the opportunity to seek a protective order or arrange for appropriate safeguards. In the event of a required disclosure, Customer shall provide only that portion of the confidential information which is it is legally required to disclose.
20. No Third-party Beneficiaries
Unless otherwise set forth herein, no provision of these Terms shall grant rights, remedies or benefits to any person or entity other than Customer and StimLabs.
