CIT Ortho, LLC 
 

1. GENERAL. CIT Ortho, LLC, an Ohio limited liability company ("CITO"), hereby offers for sale to the buyer named in the order ("Buyer") to which these terms apply, the products listed on the face thereof (the "Products") on the express condition that Buyer agrees to accept and be bound by the terms and conditions set forth herein. Any provisions contained in any document issued by Buyer are expressly rejected and if the terms and conditions set forth herein differ from the terms of Buyer's offer, this document shall be construed as a counter-offer and shall not be effective as an acceptance of Buyer's document. Buyer's receipt of Products or CITO's commencement of the services provided hereunder will constitute Buyer's acceptance of these terms. This is the complete and exclusive statement of the contract between CITO and Buyer with respect to Buyer's purchase of the Products.  CITO reserves the right to make changes to these Terms and Conditions of Sale at any time by posting such changes on its website or delivering notice to Buyer, and such changes shall apply to orders of Products made by Buyer thereafter. CITO's failure to object to terms contained in any subsequent communication from Buyer will not be a waiver or modification of the terms set forth herein. All orders are subject to acceptance in writing by an authorized representative of CITO. CITO reserves the right to reject any order for any reason. By purchasing products from CITO, Buyer agrees that it is purchasing the Products only for its own use and not for purposes of resale. Products purchased pursuant to these Terms and Conditions may not be sold or transferred to any person or entity for purposes of resale. CITO reserves the right to take any action it deems necessary to address Buyer’s violation of these terms, including, but not limited to, the suspension of Buyer’s ability to purchase Products.  CITO reserves the right to change, without prior notice, the design, construction, and type of materials used in the manufacture of any of its Products. CITO further reserves the right to discontinue, without prior notice, any of its Products and/or replacement parts therefore. CITO may further change the prices of its Products at any time and without prior notice unless otherwise agreed in writing by CITO to expressly provide prior notice to Buyer. CITO will make reasonable effort to provide advance notice when possible. Billing and payment shall be in US Dollars, unless otherwise agreed in writing by the parties

2. PRICE. All prices published by CITO or quoted by CITO's representatives may be changed at any time without notice. All prices quoted by CITO or CITO's representatives are valid for thirty (30) days, unless otherwise stated in writing. All prices for the Products will be as specified by CITO or, if no price has been specified or quoted, will be CITO's price in effect at the time of shipment. All prices are subject to adjustment on account of specifications, quantities, raw materials, cost of production, shipment arrangements or other terms or conditions which are not part of CITO's original price quotation. List prices may vary from the price displayed on the website for certain products.

3. TAXES AND OTHER CHARGES.  Prices for the Products exclude all sales, value added and other taxes and duties imposed with respect to the sale, delivery, or use of any Products covered hereby, all of which taxes and duties must be paid by Buyer. If Buyer claims any exemption, Buyer must provide a valid, signed certificate or letter of exemption for each respective jurisdiction.

4. PAYMENT.  CITO may invoice Buyer upon shipment for the price and all other charges payable by Buyer in accordance with the terms on the face hereof. If no payment terms are stated on the face hereof, payment shall be net thirty (30) days from the date of invoice. If Buyer fails to pay any amounts when due, Buyer shall pay CITO interest thereon at a periodic rate of one and one-half percent (1.5%) per month (or, if lower, the highest rate permitted by law), together with all costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) incurred by CITO in collecting such overdue amounts or otherwise enforcing CITO's rights hereunder. CITO reserves the right to require from Buyer full or partial payment in advance, or other security that is satisfactory to CITO, at any time that CITO believes in good faith that Buyer's financial condition does not justify the terms of payment specified. All payments shall be made in U.S. Dollars.

5. DELIVERY; CANCELLATION OR CHANGES BY BUYER.  

1. Delivery Terms.  The Products will be shipped to the destination specified by Buyer, ex works (Incoterms 2010) CITO's shipping point. CITO will have the right, at its election, to make partial shipments of the Products and to invoice each shipment separately. CITO reserves the right to stop delivery of Products in transit and to withhold shipments in whole or in part if Buyer fails to make any payment to CITO when due or otherwise fails to perform its obligations hereunder.

2. Inspection/Rejection.  Buyer must inspect delivered Products and report claims for defects, damages, shortages or receipt of wrong products which are discoverable on a visual inspection within 48 hours of delivery or the Products will be deemed irrevocably accepted and such claims will be deemed waived.

3. Delays.  All shipping dates are approximate only, and CITO will not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond CITO's reasonable control. In the event of a delay due to any cause beyond CITO's reasonable control, CITO reserves the right to terminate the order or any part of the order so affected, or to reschedule shipment within a reasonable period of time, and Buyer will not be entitled to refuse delivery or otherwise be relieved of any obligations as the result of such delay. Products as to which delivery is delayed due to any cause within Buyer's control may be placed in storage by CITO at Buyer's risk and expense and for Buyer's account. Orders in process may be canceled by Buyer only with CITO's written consent and upon payment of CITO's cancellation charges. Orders in process may not be changed by Buyer except with CITO's written consent and upon agreement by the parties as to an appropriate adjustment in the purchase price therefore. Credit will not be allowed for Products returned without the prior written consent of CITO.

6. TITLE AND RISK OF LOSS.  Notwithstanding the trade terms indicated above and subject to CITO's right to stop delivery of Products in transit, title to and risk of loss of the Products will pass to Buyer upon delivery of possession of the Products by CITO to the carrier; provided, however, that title to any software incorporated within or forming a part of the Products shall at all times remain with CITO or the licensor(s) thereof, as the case may be.

7. LIMITED WARRANTY. 

a.          Warranty Terms.  CITO warrants that the Products will operate or perform substantially in conformance with CITO's published specifications and be free from defects in material and workmanship, when subjected to normal, proper and intended storage and usage by properly trained personnel, for a period of one (1) year from the date of shipment to Buyer (the "Warranty Period").  CITO agrees to repair or replace, at CITO's option in its sole discretion, defective Products so as to cause the same to operate in substantial conformance with its published specifications; provided that Buyer shall (a) prior to the end of the Warranty, promptly notify CITO in writing upon the discovery of any defect, which notice shall include the product model and serial number (if applicable) and details of the warranty claim; and (b) after CITO's review, CITO will provide Buyer with service data and/or a Return Authorization, which may include product-specific handling instructions, then, if applicable, Buyer may return the defective Products to CITO with all costs prepaid by Buyer. Replacement parts may be new or refurbished, at the election of CITO. All replaced parts shall become the property of CITO. Shipment to Buyer of repaired or replacement Products shall be made in accordance with the Delivery provisions of the CITO's Terms and Conditions of Sale..  If CITO elects to repair defective medical device instruments, CITO may, in its sole discretion, provide a replacement loaner instrument to Buyer as necessary for use while the instruments are being repaired.

b.         Third Party-Supplied Items.  Notwithstanding the foregoing, Products supplied by CITO that are obtained by CITO from an original manufacturer or third-party supplier are not warranted by CITO and CITO disclaims all warranties associated with the accuracy of any original manufacturer or third-party supplier Product information, but CITO agrees to assign to Buyer any warranty rights in such Product that CITO may have from the original manufacturer or third-party supplier, to the extent such assignment is allowed by such original manufacturer or third-party supplier.

c.          Exclusions.  In no event shall CITO have any obligation to make repairs, replacements or corrections required, in whole or in part, as the result of (i) normal wear and tear, (ii) accident, disaster or event of force majeure, (iii) misuse, fault or negligence of or by Buyer, (iv) use of the Products in a manner for which they were not designed, (v) causes external to the Products such as, but not limited to, power failure or electrical power surges, (vi) improper storage and handling of the Products or (vii) use of the Products in combination with equipment or software not supplied by CITO. If CITO determines that Products for which Buyer has requested warranty services are not covered by the warranty hereunder, Buyer shall pay or reimburse CITO for all costs of investigating and responding to such request at CITO's then prevailing time and materials rates. If CITO provides repair services or replacement parts that are not covered by this warranty, Buyer shall pay CITO therefor at CITO's then prevailing time and materials rates. ANY INSTALLATION, MAINTENANCE, REPAIR, SERVICE, RELOCATION OR ALTERATION TO OR OF, OR OTHER TAMPERING WITH, THE PRODUCTS PERFORMED BY ANY PERSON OR ENTITY OTHER THAN CITO WITHOUT CITO'S PRIOR WRITTEN APPROVAL, OR ANY USE OF REPLACEMENT PARTS NOT SUPPLIED BY CITO, SHALL IMMEDIATELY VOID AND CANCEL ALL WARRANTIES WITH RESPECT TO THE AFFECTED PRODUCTS.

d.         Buyer’s Sole Remedy.  THE OBLIGATIONS CREATED BY THIS WARRANTY STATEMENT TO REPAIR OR REPLACE A DEFECTIVE PRODUCT SHALL BE THE SOLE REMEDY OF BUYER IN THE EVENT OF A DEFECTIVE PRODUCT.

e.         DISCLAIMER.  EXCEPT AS EXPRESSLY PROVIDED IN THIS WARRANTY STATEMENT, CITO DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY LAW.  CITO HEREBY DISCLAIMS, AND BUYER EXPRESSLY WAIVES, ANY WARRANTY REGARDING RESULTS OBTAINED THROUGH THE USE OF THE PRODUCTS INCLUDING, WITHOUT LIMITATION, ANY CLAIM OF INACCURATE, INVALID, OR INCOMPLETE RESULTS.

8. INDEMNIFICATION PROVISIONS.

a.         By CITO.   CITO agrees to defend, indemnify, and hold harmless Buyer from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's fees) directly caused by claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, CITO shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by CITO where the Product would not itself be infringing, (iv) compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than CITO without CITO's prior written approval. Buyer shall provide CITO prompt written notice of any third-party claim covered by CITO's indemnification obligations hereunder. CITO shall have the right to assume exclusive control of the defense of such claim or, at the option of the CITO, to settle the same. Buyer agrees to cooperate reasonably with CITO in connection with the performance by CITO of its obligations in this Section.  Notwithstanding the above, CITO's infringement related indemnification obligations shall be extinguished and relieved if CITO, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amounts paid by Buyer with respect thereto. THE FOREGOING INDEMNIFICATION PROVISION STATES CITO'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN.

b.         By Buyer.  Buyer shall defend, indemnify and hold harmless CITO, its subsidiaries, affiliates and divisions, and their respective owners, officers, directors and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by CITO where the Product itself would not be infringing; (iii) CITO's compliance with designs, specifications or instructions supplied to CITO by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than CITO without CITO's prior written approval.

9. SOFTWARE. 

a.         License Only.  With respect to any software products incorporated in or forming a part of the Products hereunder, CITO and Buyer intend and agree that such software products are being licensed and not sold, and that the words "purchase", "sell" or similar or derivative words are understood and agreed to mean "license", and that the word "Buyer" or similar or derivative words are understood and agreed to mean "licensee". Notwithstanding anything to the contrary contained herein, CITO or its licensor, as the case may be, retains all rights and interest in software products provided hereunder.

b.         License Terms.  CITO hereby grants to Buyer a royalty-free, non-exclusive, nontransferable license, without power to sublicense, to use software provided hereunder solely for Buyer's own internal business purposes on the hardware products provided hereunder and to use the related documentation solely for Buyer's own internal business purposes. This license terminates when Buyer's lawful possession of the hardware products provided hereunder ceases, unless earlier terminated as provided herein. Buyer agrees to hold in confidence and not to sell, transfer, license, loan or otherwise make available in any form to third parties the software products and related documentation provided hereunder. Buyer may not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement the software products provided hereunder without CITO's prior written consent. CITO will be entitled to terminate this license if Buyer fails to comply with any term or condition herein. Buyer agrees, upon termination of this license, immediately to return to CITO all software products and related documentation provided hereunder and all copies and portions thereof.

c.         Third Party Software.  Certain of the software products provided by CITO may be owned by one or more third parties and licensed to CITO. Accordingly, CITO and Buyer agree that such third parties retain ownership of and title to such software products. The warranty and indemnification provisions set forth herein shall not apply to software products owned by third parties and provided hereunder.

10. LIMITATION OF LIABILITY.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE LIABILITY OF CITO UNDER THESE TERMS AND CONDITIONS (WHETHER BY REASON OF BREACH OF CONTRACT, TORT, INDEMNIFICATION, OR OTHERWISE, BUT EXCLUDING LIABILITY OF CITO FOR BREACH OF WARRANTY (THE SOLE REMEDY FOR WHICH SHALL BE AS PROVIDED UNDER SECTION 7 ABOVE)) SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL PURCHASE PRICE THERETOFORE PAID BY BUYER TO CITO WITH RESPECT TO THE PRODUCT(S) GIVING RISE TO SUCH LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL CITO BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE OF FACILITIES OR EQUIPMENT, LOSS OF REVENUE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF GOODWILL), REGARDLESS OF WHETHER CITO (a) HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR (b) IS NEGLIGENT.

11. EXPORT RESTRICTIONS.  Buyer acknowledges that each Product and any related software and technology, including technical information supplied by CITO or contained in documents (collectively "Items"), is subject to export controls of the U.S. government. The export controls may include, but are not limited to, those of the Export Administration Regulations of the U.S. Department of Commerce (the "EAR"), which may restrict or require licenses for the export of Items from the United States and their re-export from other countries. Buyer shall comply with the EAR and all other applicable laws, regulations, laws, treaties, and agreements relating to the export, re-export, and import of any Item. Buyer shall not, without first obtaining the required license to do so from the appropriate U.S. government agency; (i) export or re-export any Item, or (ii) export, re-export, distribute or supply any Item to any restricted or embargoed country or to a person or entity whose privilege to participate in exports has been denied or restricted by the U.S. government. Buyer shall cooperate fully with CITO in any official or unofficial audit or inspection related to applicable export or import control laws or regulations, and shall indemnify and hold CITO harmless from, or in connection with, any violation of this Section by Buyer or its employees, consultants, agents, or customers.

12. AUTHORIZED USE OF PRODUCTS.  Products sold by CITO are intended solely for the use(s) specified by CITO and are not to be used for any other purposes including, but not limited to, unauthorized commercial purposes. Buyer warrants and represents that it will properly test, use, qualify, and/or validate each Product for intended use, in accordance with the practices of a reasonable person who is an expert in the field, and in strict compliance with all applicable national, state and local laws and regulations.

13. MISCELLANEOUS. 

1. Amendment or Modification.  Except for the rights reserved by CITO in the first paragraph of these terms, these terms may not be amended or modified except by a written agreement that specifically references these terms and is signed by each of the parties hereto.

2. Authority.  Each party hereby represents and warrants that no provision of these terms will violate (a) any other agreement or obligation that such party may have with or to any other person, firm or entity or (b) any law, rule, regulation or order to which such party is subject.

3. Entire Agreement.  This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, representations and discussions of the parties, whether oral or written, express or implied.

4. No Third Party Rights.  Nothing expressed or referred to in these terms will be construed to give any person or entity other than the parties to these terms any legal or equitable right, remedy, or claim under or with respect to these terms or any provision of these terms.  This Agreement and all of its provisions and conditions are for the sole and exclusive benefit of the parties to these terms and their respective successors and permitted assigns.

5. Remedies.  The rights and remedies provided by these terms are cumulative and the use or election of any one right or remedy by either party shall not preclude or waive its right to use any or all other remedies.  The rights and remedies provided for herein are in addition to any other rights the parties may have by law, statute, ordinance, principles of equity or otherwise.

6. Waiver.  Neither the failure nor any delay by any party in exercising any right, power or privilege under these terms will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. No waiver shall be effective unless made in writing and signed by the party against whom the waiver is sought to be enforced.

7. Severability.  The provisions of these terms are severable, and if any provision should, for any reason, be held invalid or unenforceable in any respect, it will not invalidate, render unenforceable or otherwise affect any other provision, and such invalid or unenforceable provision will be construed by limiting it so as to be valid and enforceable to the maximum extent compatible with, and possible under, applicable law.

8. Notices.  All notices and other communications hereunder will be in writing and will be sent either by (a) certified mail, postage prepaid, return receipt requested; (b) an overnight express courier service that provides written confirmation of delivery; or (c) facsimile or email with written confirmation by the sending machine or with telephone confirmation of receipt.  Any party may change its address for receiving notice by giving notice of a new address in the manner provided herein.  Any notice given under this section, will be deemed to be delivered on the third business day after the same is deposited in the United States Mail, on the next business day if sent by overnight courier, or on the same business day if sent by facsimile before the close of business of the recipient, or the next day, if sent by facsimile after the close of business of business of the recipient.

9. Jurisdiction; Service of Process.  The parties hereby irrevocably agree that any action or proceeding seeking to enforce any provision of, or based on any right arising out of, these terms must be brought exclusively in the courts of the State of Ohio located in Cuyahoga County, Ohio, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of Ohio.  Each of the parties hereto irrevocably consents and submits itself to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and irrevocably waives any objection it may now or hereafter have to the placing of venue in any such courts and any right to remove any such action or proceeding to another court.  Process in any action or proceeding referred to in the preceding sentence may be served on any party anywhere in the world.

10. Governing Law.  This Agreement will be governed by the laws of the State of Ohio, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction.

11. Confidentiality; IP Rights.  Except for information that Buyer demonstrates was in Buyer’s possession prior to receipt from CITO, Buyer agrees that all information of CITO, whether written or oral, that is furnished by CITO to Buyer concerning the business, affairs or Products of CITO or is learned by Buyer during discussions or communications between Buyer and CITO, is proprietary to CITO, and Buyer will hold such information in confidence and will not use or disclose such information without CITO’s prior written consent, except for the fulfillment of these terms.  All intellectual property rights in the Products is, and shall at all times remain, vested in CITO and/or its licensors and no transfer or other assignment of any of CITO’s intellectual property is being made.

12. Medical Diagnosis and Treatment. All clinical and medical treatment, diagnostic and/or billing decisions are Buyer’s sole responsibility.

14. REGULATORY REQUIREMENTS. 

1. Discounts; Reporting.  It is the intent of Buyer and CITO to comply with the Anti-Kickback Statute (42 U.S.C. §1320a-7b(b)) and the Discount Safe Harbor and Warranties Safe Harbor regulations set forth in 42 C.F.R. 1001.952(h) and (g), respectively. Buyer acknowledges that it is informed about and agrees to fully and accurately account for, and report on its applicable cost report, the total value of any discount, rebate or other compensation paid hereunder in a way that complies with all applicable federal, state and local laws and regulations which establish "Safe Harbor" for discounts.  Without limiting the foregoing, such laws may require, among other things, that Buyer fully and accurately report on any claim or request for payment it submits to Medicare and Medicaid the actual purchase price paid by Buyer for products, net of any discounts, rebates or allowances provided hereunder. Buyer may also be required, upon request, to provide documentation of the discount or other reduction in price to the Secretary of Health and Human Services.  Buyer shall make written request to CITO in the event Buyer requires additional information from CITO in order to meet its reporting requirements. Buyer will be solely responsible for determining whether any savings or discount or warranty item it receives must be reported or passed on to payors.  Buyer acknowledges that agreement to such reporting requirement was a condition precedent to CITO's agreement to provide Products and that CITO would not have entered into transactions with Buyer had Buyer not agreed to comply with such obligations.

2. Devices Act.  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 CITO within ten (10) days of the occurrence of any event identified in the Devices Act imposing a reporting obligation on Buyer and/or CITO (except for events representing an imminent hazard that require notification to the United States Food and Drug Administration (the "FDA") within seventy-two hours, in which case, such notice will be delivered to the other party immediately). Buyer shall maintain adequate tracking for the products to enable CITO to meet the FDA requirements applicable to the tracking of medical devices.

3. Other.  In addition to the foregoing, Buyer agrees to comply with all applicable laws, rules and regulations in connection with the purchase, use and charging of patients with respect to the Products.