1. Agreement. These standard terms and conditions of sale (“Agreement”), together with any other document(s) that Acumen Technology (“Acumen”) has attached hereto or executed that specifically reference this Agreement constitute the entire agreement between Acumen and you (“Buyer”) regarding your purchase and use of Acumen’s products, services and support (collectively, “Products”) and supersede all other agreements and understandings, whether written or oral, between the parties with respect to such Products. By accepting delivery of the Products, Buyer agrees to be bound by and accept the terms and conditions of this Agreement. These terms and conditions are subject to change at any time in Acumen’s sole discretion upon written notice. This Agreement may NOT be altered, supplemented or amended by the use of any other document(s) unless otherwise agreed to in a separate written agreement signed by Acumen. If Buyer does not wish to be bound by this Agreement, Buyer must promptly notify Acumen. Products must remain in the boxes in which they were shipped and Buyer must notify Acumen immediately to arrange a Product return, FOR WHICH BUYER WILL BE RESPONSIBLE FOR SHIPPING & HANDLING CHARGES. THIS AGREEMENT SHALL APPLY UNLESS YOU HAVE A SEPARATE WRITTEN AGREEMENT WITH ACUMEN THAT EXPRESSLY REPLACES THIS AGREEMENT.
2. Price. Prices are based on standard domestic packaging and do not include the cost for special packaging or other requirements, which shall be at Buyer’s expense. All prices are subject to change without notice. All prices exclude applicable United States federal, state, or local taxes, which shall be added to the price or billed separately to Buyer where Acumen has the legal obligation to collect the taxes. Buyer must provide Acumen with a resale/exemption certificate in order to avoid the withholding of applicable taxes. No refund or adjustment to previously withheld taxes will be made by Acumen more than sixty (60) days after the invoice date. Proof of certification should be mailed to Acumen Technology. Acumen reserves the right to charge at any time a monthly service charge of one and one-half percent (1.5%) or the highest rate allowed by law, whichever is lower, on accounts that are not paid when due, effective the first day after the due date. Minimum order amount: $50.00.
3. Payment Terms. Payment may be made by credit card (at the time of order) or on open account (subject to approval). Upon the approval of Acumen’s credit department, open account terms are net thirty (30) days after date of Acumen’s invoice, unless otherwise agreed to in writing. All payments shall be made in quoted currency. If Buyer fails to fulfill the terms of payment or if Acumen shall have any doubt at anytime as to Buyer’s financial condition, Acumen may decline to make further deliveries except upon receipt of cash or satisfactory security. This requirement will not release Buyer from any previous obligation. Buyer will pay invoices rendered by Acumen covering Products not in dispute regardless of disputes relating to other invoices. Buyer’s obligation to pay outstanding invoices and all other amounts is absolute and unconditional and is not subject to any abatement, reduction, set-off, defense, counterclaim, interruption, deferment or recoupment for any reason whatsoever. Buyer shall be liable to Acumen for all costs incurred by Acumen in its collection of any amount owed by Buyer that are not paid when due, including collection agencies’ and attorneys’ fees and expenses, regardless of whether an actual lawsuit is commenced.
4. Security for Payment of Purchase Price. Buyer hereby grants to Acumen a purchase money security interest and lien on any and all of Buyer’s rights, title and interest in the Products, wherever located, and all replacements or proceeds of the Products until the invoice for the applicable Products is paid in full, including any late charges and costs of collection. Upon Acumen’s request, Buyer shall execute suitable financing statements for filing and, in applicable jurisdictions, Buyer grants to Acumen the right to file financing statements without Buyer’s signature thereon. Acumen may file this Agreement as a financing statement.
5. Force Majeure. Acumen shall not be liable for any delays in the delivery of orders, due in whole or in part, directly or indirectly, to fire, act of God, strike, shortage of raw materials, supplies or components, retooling, upgrading of technology, delays of carriers, embargo, government order or directive, terrorist activities or any other circumstance beyond Acumen’s reasonable control.
6. Orders; Delivery Terms. After acceptance by Acumen, Buyer’s order shall not be subject to cancellation, termination or reduction in any amount without Acumen’s prior written consent. Unless otherwise provided on Acumen’s acknowledgement form or other document accepted by Acumen in writing, all shipments shall be shipped by Acumen Ex-Post Factory (Acumen or Acumen Supplier facility) and title transfers at time of shipment. The carrier shall be deemed to be Buyer’s agent and Buyer shall make all claims with respect to damage in transit against the responsible carrier. Delivery dates provided by Acumen are estimates only and Acumen’s failure to meet the same shall not be deemed a breach of this Agreement.
7. Taxes. Unless Buyer provides Acumen with a valid and correct tax-exemption certificate applicable to the Product ship-to location at the time of purchase, Buyer will be responsible for sales, goods and services, as well as all other similar taxes and fees associated with the order, however designated.
8. Inspection and Acceptance; Installation. Buyer must inspect delivered Products and report claims for defects, damages or shortages which are discoverable on a visual inspection in writing within ten (10) days of delivery or the Products shall be deemed irrevocably accepted and such claims shall be deemed waived. However, shipping damage claims must be made by Buyer directly with the shipping company in accordance with their policies which generally require such claims to be made prior to the time the carrier of the Product(s) leaves the delivery destination. Buyer shall advise Acumen of such claims. Buyer will be solely responsible for installation and servicing of the Products unless Buyer purchases such services from Acumen.
9. Technical Information. Information on corrosion, pressures, and temperatures may be used as a guide and as a basis for recommendations and should not be interpreted as a guarantee. Products should be tested by Buyer under actual service conditions.
10. Duty to Select Material. To the best of Acumen’s knowledge, the information contained in its publications is correct. All information is based upon tests performed by and data collected by Acumen and third party providers. Acumen does not assume any liability whatsoever for the accuracy or completeness of such information. Final determination of suitability is the sole responsibility of the Buyer and the user of the Product. The manner of use is the sole responsibility of the Buyer, user and/or their engineer.
11. Medical Devices. If any of the Products are medical devices, Buyer acknowledges that it is familiar with the Safe Medical Devices Act of 1990 (the “Devices Act”) and the reporting obligations imposed on device users thereunder. In this regard, Buyer agrees to notify Acumen within ten (10) days of the occurrence of any event identified in the Devices Act imposing a reporting obligation on Buyer and/or Acumen [except for events representing an imminent hazard that require notification to the United States Food and Drug Administration (the “FDA”) within seventy-two (72) hours, in which case, such notice will be delivered to the FDA and Acumen within said period]. Buyer shall maintain adequate tracking for the Products to enable Acumen to meet the FDA requirements applicable to the tracking of medical devices.
12. 510(k) Disclaimer. Acumen has 510(k) pre-market notifications for all systems it designs and installs for dialysis except for M4 models. The purchase of parts and system components from Acumen does not provide 510(k) compliance for Buyer’s system.
13. Limitation of Warranties.
Non-Acumen Products. All Products not manufactured by Acumen carry the original manufacturer’s warranty, copies of which are available on request. Unless otherwise advised, Acumen will permit Buyer to submit warranty claims regarding such Products to Acumen, which will then proceed against the original manufacturer on behalf of Buyer in accordance with such manufacturer’s warranty policy. Acumen MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS NOT MANUFACTURED BY Acumen.
Acumen Products. Acumen warrants to Buyer that Products manufactured by Acumen that are sold to Buyer will be free of defects in material and workmanship under normal use and service at the time of shipment from Acumen. The warranty period for products (other than parts) shipped by Acumen without any installation by Acumen is one (1) year. The warranty period for products (other than parts) installed at a customer site by Acumen is the lesser of one (1) year from installation or fifteen (15) months from shipment. The warranty period for parts is ninety (90) days from shipment or, if installed by Acumen, the lesser of ninety (90) days from installation or 180 days from shipment. Service is warranted for ninety (90) days from performance of services. Acumen’s warranty hereunder will not apply: (i) if a product is not used in accordance with its instructions or if it is used for a purpose not indicated on the labeling, (ii) to any repairs, alterations or other work performed by Buyer or others on such item, other than work performed by Acumen or with Acumen’s prior written authorization and according to its approved procedures; or (iii) if the alleged defect is a result of abuse, misuse, improper maintenance or storage, accident or the negligence of any party other than Acumen. The limited warranty furnished hereunder does not extend to damage to items purchased hereunder (i) resulting in whole or in part from the use of components, accessories, parts or supplies not furnished by Acumen or (ii) caused by improper use or installation, or improper thermal or electrical capacity. In addition, the limited warranty is conditioned upon proper storage, installation, use and maintenance of the product in accordance with applicable written recommendations of Acumen.
Notice of a defective product must be given to Acumen in writing within ten (10) days following the discovery of such defect. No allowance for, or replacement of, defective Products covered by warranty will be made unless the alleged defects are established to the satisfaction of Acumen. If any such defect is so established, Acumen’s SOLE LIABILITY shall be, at Acumen’s option, to either replace or repair the Products involved or refund the purchase price to Buyer. The return of defective Products is subject to the terms and conditions of Section 15 below.
ACUMEN’S LIMITED WARRANTY HEREUNDER IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO ANY PRODUCTS PROVIDED BY Acumen AND Acumen DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR PARTICULAR USE, AS WELL AS WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE. INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Any oral or written statement concerning the Products inconsistent with the limited warranty set forth above shall be of no force or effect.
14. Limitation of Actions. Any actions or claims by Buyer regarding the sale of Products by Acumen must be brought within 12 months after the date of shipment of the Products by Acumen. However, any billing disputes must be made within one (1) month of the applicable invoice date or will be deemed to be waived.
15. Intellectual Property/Trademarks. All intellectual property rights in and to, and all technology relating to, the Products supplied to Buyer, their design and all improvements thereto or thereof, whether or not such product, design or improvement is made pursuant to Buyer’s specifications or at Buyer’s expense shall be and remain the exclusive property of Acumen. The sale of its Products by Acumen does not constitute a license, implied or otherwise, for the use of any patents or know-how of others, nor does it constitute a license implied or otherwise on patents or know-how of Acumen except as such Product itself is the subject of the claims of a Acumen patent. Buyer shall not change, adulterate, obscure, remove or deface trademarks, trade names or labels appearing on any product of Acumen.
16. Installment. In the event any purchase of Products by Buyer is deemed or interpreted to be an installment contract, Acumen’s failure to deliver when due, or nonconformity of, any installment will not substantially impair the value of the overall contract as a whole and shall not constitute a breach of the contract.
17. Limitation of Liabilities and Remedies.Acumen and its affiliates shall not have any liability for damage to facility or property due to floods or leaks caused by or related to the Products provided hereunder. All water systems must be protected from water hammer, have required safety relief valves, vacuum breakers and leak detectors. Floors and walls must be sealed and sloped to adequate floor drains. In addition, Buyer is responsible for meeting all federal, state and local laws, rules and regulations regarding the monitoring of supplied equipment, including ozone equipment.
UNDER NO CIRCUMSTANCES SHALL Acumen OR ITS AFFILIATES HAVE ANY LIABILITY TO BUYER AND BUYER HEREBY EXPRESSLY WAIVES ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY DESCRIPTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING OUT OF WARRANTY OR CONTRACT, NEGLIGENCE OR OTHER TORT, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, FORESEEABLE BUSINESS LOSSES, LOSS OF PROFITS AND RELIANCE DAMAGES. BUYER AGREES THAT UNDER NO CIRCUMSTANCES SHALL Acumen’S LIABILITY RELATING TO ITS SALE OF PRODUCTS TO BUYER FOR ANY CAUSE EXCEED THE PURCHASE PRICE PAID BY BUYER FOR THE PRODUCTS. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY EVEN IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
18. Headings. The section headings used herein are for convenience of reference only and do not form a part of these terms and conditions, and no construction or inference shall be derived there from. If any provision of this Agreement is void or unenforceable, the remainder of this Agreement will remain in full force and will not be terminated. Neither party will be liable for any delay resulting from circumstances or causes beyond the party’s reasonable control.
20. Applicable Law. This Agreement, any sales thereunder, and any claim, dispute or controversy between Buyer and Acumen arising from or relating to this Agreement, its interpretation, or the breach, termination, or validity thereof, shall be governed by and construed in accordance with the internal laws of the State of Minnesota, without regard to conflicts-of-law rules. Any and all disputes arising under this Agreement shall be dealt with under the exclusive jurisdiction and exclusive venue of the federal or state courts located in Hennepin County, Minnesota, to the exclusion of all other courts. Buyer expressly agrees to submit to the jurisdiction of such courts.
21. Modification and Waiver. No purported amendment, modification or waiver of any provision hereof shall be binding unless set forth in writing and signed by an officer of Acumen. Any waiver shall be limited to the circumstance or event specifically referenced in the written waiver document and shall not be deemed a waiver of any other term of this Agreement or of the same circumstance or event upon any recurrence thereof. The failure of Acumen to enforce any provision of this Agreement at any time shall not be construed to be a waiver of such provision nor of the right of Acumen thereafter to enforce such provision.
22. Validity. If any provision of these Terms and Conditions of Sale is found to be invalid or unenforceable in any respect, the validity and enforceability of the remaining Terms and Conditions of Sale shall not be affected.
23. Storage and On Hold Orders Policy. If Buyer requests that Acumen delay or defer the shipment of equipment (or otherwise causes a delay of shipment) for more than fifteen (15) days beyond the scheduled ship date, then Acumen may store such equipment at Acumen’s premises or in a contracted warehouse or yard at Buyer’s risk and expense. When equipment is placed in storage, it will be deemed to have been shipped for invoicing and warranty purposes and Buyer is considered to have accepted the equipment. Buyer will be solely responsible for all handling, transportation and storage charges prevailing at commercial rates calculated by cube and/or weight upon submission by Acumen of invoices thereof. Buyer may not obtain any delay or deferment of delivery unless Acumen agrees thereto in writing. In no event will Acumen agree to any such delay or deferment unless Buyer establishes good and sufficient cause thereof to Acumen’s satisfaction of Acumen, and unless Buyer agrees in writing to terms acceptable to Acumen. In no event may any period of delay or deferment requested by Buyer exceed 60 days.
24. Supplemental Terms. On custom orders and certain special orders additional terms and conditions may apply. Such terms and conditions, if applicable, will be set forth in a separate Supplemental Terms addendum attached hereto and will be deemed a part of this Agreement.
