Terms and Conditions of Sale
Thank you for your interest in B. Braun OEM products.
The following provisions set forth the terms and conditions on which B. Braun OEM is offering to sell its products. Pricing may be obtained by calling our Toll Free number at 866-8-BBRAUN. The prices quoted will remain valid for 30 days. Your order may be placed by calling 866-8-BBRAUN or by faxing or mailing your order to:
B. Braun Medical Inc.
824 Twelfth Avenue, Bethlehem, PA 18018
Attention: Customer Care
Fax Number: (610) 691-1785
* B. Braun OEM is a division of B. Braun Medical Inc. All references in these terms and conditions to B. Braun means B. Braun Medical Inc and B. Braun OEM.
1. Terms of Sale/Acceptance. Purchase by Buyer of any products shall be subject to and expressly limited by the terms and conditions contained herein. If additional or different terms are proposed by Buyer, such additional or different terms shall be void and of no effect.
ACCEPTANCE OF ANY OFFER MAY ONLY BE MADE ON THESE EXACT TERMS AND CONDITIONS. IF ADDITIONAL OR DIFFERENT TERMS ARE PROPOSED BY BUYER, SUCH ADDITIONAL OR DIFFERENT TERMS SHALL NOT BECOME A PART OF THE CONTRACT FORMED BY BUYER'S ACCEPTANCE OF ANY OFFER.
No changes to, or waiver of, any of these terms and conditions shall be effective unless in writing and signed by both parties. Both parties acknowledge and agree that these terms and conditions supersede the terms and conditions of any purchase order or other documentation used by Buyer, but that Buyer may place orders by use of purchase orders or other documentation for convenience purposes only. Notwithstanding the foregoing, B. Braun reserves the right at any time to amend these terms and conditions, and Buyer shall be deemed to accept such amended terms and conditions by ordering products herein offered after the date of such amendment. Additional special terms and conditions of B. Braun may be applicable with respect to certain products.
2. Prices, Taxes and Payment. All prices are firm for 30 days from the date quoted. B. Braun reserves the right to change the prices and specifications of its products at any time without notice. Any tax, duty, custom or other fee of any nature imposed upon the products, their sale, transportation, delivery, use or consumption shall be paid by Buyer in addition to the price quoted or invoiced. If B. Braun is required to prepay any such tax or fee, Buyer will reimburse B. Braun. Buyer must provide B. Braun with a resale/exemption certificate in order to avoid the withholding of applicable taxes. Proof of certification should be mailed or faxed to Customer Care at the address set forth above.
Payment terms are net 30 days from date of invoice. 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. Balances remaining unpaid at due date are subject to a interest charge of 1.5% per month or the highest rate permitted by law, whichever is lower, until paid. Any disputed amounts should be reported immediately and remitted with the undisputed amount by the payment due date. If B. Braun agrees with the billing dispute, B. Braun will credit Buyer the amount of the agreed-upon billing dispute. All billing disputes must be made within three (3) months of the applicable invoice date, or will be deemed to be waived.
B. Braun reserves the right in its sole discretion to require C.O.D. payment terms from any Buyer at any time and may refuse to sell and/or withhold further shipment until all overdue balances are made current. Buyer shall be liable for, and shall reimburse B. Braun for all costs and expenses it may incur in connection with collection of any amounts owed to B. Braun for products ordered by Buyer, including without limitation, attorneys' fees and costs, court costs, cost of collection agencies, etc.
3. Minimum Order Quantity. All products must be ordered in full case quantities, with a $500.00 minimum total order value.
4. Delivery and Shipment. Delivery terms are F.O.B. B. Braun's manufacturing facility, at which time risk of loss shall pass to Buyer. Title of products shall pass upon payment in full by Buyer to B. Braun. All shipment costs shall be paid by Buyer, and if prepaid by B. Braun, the amount thereof shall be reimbursed to B. Braun. B. Braun will make reasonable efforts to ship the products in accordance with the requested delivery date of Buyer, provided that B. Braun accepts no liability for any losses or for general, special or consequential damages arising out of delays in delivery. When expedited transportation, specialized service, or alternate transportation modes are specified, or requests made are inconsistent with efficient distribution practices, an additional charge to cover the premium expense will be added to the invoice. Inside deliveries or multiple deliveries are subject to additional charges based on current common carrier rates or hourly rates. B. Braun will provide proof of delivery upon request.
5. Inspection/Acceptance of Products. Buyer shall be responsible for inspecting all products shipped prior to acceptance; provided, however, that if Buyer shall not have given B. Braun written notice of rejection within thirty (30) days following receipt by Buyer, the products shall be deemed to have been accepted by Buyer.
6. Warranties. B. Braun warrants to the original Buyer that each product manufactured by B. Braun, when delivered, conforms to the specifications for such product. All warranty claims must be made by written notice to B. Braun no later than six (6) months from the date of shipment. B. Braun's warranty hereunder shall not apply if: (i) a product is altered or modified in Buyer's assembly or manufacturing process, (ii) any repairs, alterations or other work has been performed by Buyer or others on such item, other than work performed with B. Braun's authorization and according to its approved procedures; or (iii) the alleged defect is a result of abuse, misuse, improper maintenance, accident or the negligence of any party. The warranty set forth herein is conditioned upon proper storage, installation, use and maintenance in accordance with applicable written recommendations of B. Braun. The warranty furnished hereunder does not extend to damage to items purchased hereunder resulting in whole or in part from the use of components, accessories, parts or supplies not furnished by B. Braun.
Buyer's sole remedy in the event of a breach by B. Braun of any of the warranties contained herein shall be, at B. Braun’s option, either the repair or replacement by B. Braun of the defective product or the reimbursement to Buyer of the purchase price Buyer paid for such defective product. Buyer shall provide labor for the removal of the defective component or item and installation of its replacement at no charge to B. Braun. Buyer shall bear all risk of loss or damage to returned goods while in transit. In the event no defect or breach of warranty is discovered by B. Braun upon receipt of any returned item, the item will be returned to Buyer at Buyer's expense and Buyer will reimburse B. Braun for the transportation charges, labor and associated charges incurred in testing the allegedly defective item.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, B. BRAUN MAKES NO WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED WITH RESPECT TO ANY PRODUCTS, PARTS OR SERVICES PROVIDED BY B. BRAUN INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PRODUCTS OR COMPONENTS DISTRIBUTED, BUT NOT MANUFACTURED, BY B. BRAUN ARE NOT WARRANTED BY B. BRAUN AND BUYER MUST INSTEAD RELY ON THE REPRESENTATIONS AND WARRANTIES, IF ANY, PROVIDED DIRECTLY TO BUYER BY THE MANUFACTURER OF SUCH PRODUCT OR COMPONENT. THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY IS LIMITED TO THE REMEDIES PROVIDED IN THIS SECTION (6). B. BRAUN SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR ANY OTHER INDIRECT DAMAGES RESULTING FROM ECONOMIC LOSS OR PROPERTY DAMAGE SUSTAINED BY BUYER FROM THE USE OR SALE OF ITS PRODUCTS.
7. Returned Goods Policy. After acceptance, all sales of products shall be final. B. Braun may, in its sole discretion, authorize product returns in appropriate circumstances, subject to such conditions as B. Braun may specify. Any such return is subject to the express prior authorization of B. Braun. Buyer must notify B. Braun Customer Care at 866-8-BBRAUN and request a Returned Goods Authorization "RGA" Form. The RGA Form requires lot numbers, quantities and catalog numbers along with a specific reason for return. Customer Care will either authorize or deny the request for return. Only items appearing on an approved RGA Form are acceptable for return. Unauthorized returns will not be accepted. All authorized returned goods must be shipped Freight prepaid to the B. Braun location indicated on the RGA Form, except B. Braun will pay freight costs for product shipped-in-error. No returns will be authorized after thirty (30) days following delivery. All returns are subject to a handling/restocking charge, except for products shipped-in-error. Products authorized for return must be in their original unopened packaging to receive credit.
8. Technical Advice. B. Braun may, at Buyer's request, furnish technical assistance, advice and information with respect to the products, if and to the extent that such advice, assistance and information is conveniently available. It is expressly agreed that there is no obligation to provide such information, which is provided without charge, and at Buyer's risk. No agent, employee or other representative has the right to modify or expand B. Braun's standard warranty applicable to the products or to make any representations as to the products other than those set forth in B. Braun's product literature and any such affirmation, representation or warranty, if made, should not be relied upon by Buyer. Buyer shall be solely responsible for making its own independent determination whether products ordered will suit its needs and intended uses, and will not rely upon any representations or warranties of B. Braun except for the express warranties provided in Section 6 above.
9. Miscellaneous:
(a) B. Braun will use its reasonable efforts to fill orders, but shall not be liable for nonperformance or delays caused by a shortage of raw materials, manufacturing problems, delivery or labor problems, acts of regulatory agencies or judicial bodies, discontinuation of a product or product line, acts of God or third parties, or other causes beyond its reasonable control. In such events B. Braun may allocate products among all customers, without liability.
(b) All transactions and agreements shall be governed by the laws, but not the law of conflicts of law, of the Commonwealth of Pennsylvania. Any dispute, controversy or claim arising out of or relating to these terms and conditions or the sale of Product ("Claim") shall be settled by arbitration in Philadelphia, Pennsylvania in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The decision of the arbitrator(s) shall be final and binding upon the parties and judgment upon the award may be entered in any court having jurisdiction thereof.
(c) B. Braun shall promptly deliver written notice or verbal, followed by written, notice of any recall of product. B. Braun shall replace, to the extent reasonably possible, any such recalled products as soon as practicable with comparable products not subject to such recall. Any product complaints shall be forwarded immediately to B. Braun at 866-8-BBRAUN, and B. Braun shall process all customer complaints.
(d) Buyer may not change, adulterate, obscure, remove or deface trademarks, tradenames or labels appearing on any product. Buyer does not have, nor shall claim to have any right, title or interest in or to any trademarks or trade names of B. Braun or B. Braun Medical Inc.
(e) Buyer shall retain all documentation required to trace the distribution and sale of the products and shall comply with all other laws and regulations applicable to the marketing, distribution, sale and use of the products, including without limitation (i) the Food, Drug and Cosmetic Act, as amended, and the rules and regulationspromulgated thereunder, (ii) the Foreign Corrupt Practices Act and any other applicable national, regional, state or local anti-corruption or anti-bribery laws and regulations, (iii) U.S. and other export controls (including deemed export and reexport) requirements, embargoes, sanctions and similar laws, regulations or requirements applicable to exports, and (iv) teh requiremetns for notification of reporting discounts or other reductions in price under Section 1128(b)(3)(A) of the Social Security Act.
(f) THE TOTAL LIABILITY OF B. BRAUN, FROM ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO THE PRICE PAID FOR THE PRODUCTS OUT OF WHICH SUCH CLAIM AROSE. B. BRAUN SHALL NOT BE LIABLE TO BUYER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING ANY DAMAGE FOR LOST PROFITS) ARISING OUT OF OR IN CONNECTION WITH FURNISHING OF PRODUCTS, PARTS OR SERVICES, OR THE PERFORMANCE, USE OF, OR INABILITY TO USE ANY PRODUCTS, PARTS OR SERVICES, OR OTHERWISE, WHETHER BASED IN CONTRACT, WARRANTY, TORT, INCLUDING WITHOUT LIMITATION, NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY.
(g) Any failure by B. Braun to enforce any of its rights hereunder shall not be deemed to be a waiver of such rights, and B. Braun may, at its option, from time to time, enforce any of its rights herein.
(h) In all cases, all intellectual property rights in and to, and all technology relating to, the products supplied to Buyer, the design of the products 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 B. Braun.
(i) Any knowledge or information which Buyer may disclose to B. Braun shall not be deemed to be confidential or proprietary information, and shall be acquired by B. Braun free from any restriction, unless a confidentiality agreement is signed by B. Braun with respect to such information.