The following document describes SPR Therapeutics’ Terms and Conditions for Sale of Product
- Overview and Definition of Terms. All products, components, goods, and any other items (the “Product(s)”) offered for sale by SPR Therapeutics, Inc. (“SPR”) are sold subject to these terms and conditions of sale (the “Terms and Conditions”) to a buyer (“Buyer”). The Terms and Conditions shall apply to any contract documentation to which the Terms and Conditions are attached or incorporated by reference. Except as expressly agreed by an officer of SPR in writing, no other terms and conditions, including any terms and conditions attached to, or contained within Buyer’s request for quotation, acknowledgment, purchase order or other contract documentation, shall apply or have any force or effect. Buyer’s acceptance of the Products delivered by SPR shall constitute an affirmation by Buyer that the Terms and Conditions govern the purchase and sale of the Products. SPR’s acceptance of any offer is expressly made conditional on Buyer’s assent to any additional or different terms in these terms and conditions. The Terms and Conditions are subject to change on thirty (30) days’ written notice to Buyer.
- Prices and Taxes. The Products are invoiced at the price agreed upon at the time of acceptance of the Buyer’s order. Such prices invoiced are based upon list prices in effect on the day the order is received. List prices are subject to change without notice and no adjustments will be made based on changes in list prices. Prices do not include, and Buyer will pay or reimburse SPR for, any and all taxes (other than SPR’s income taxes) and other governmental fees, assessments, duties and charges that are payable as a result of this transaction.
- Compliance with Laws. SPR and Buyer shall comply with all applicable federal and state laws and regulations, including, without limitation, the Federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b, any applicable “exceptions” or “safe harbors” under the Federal Anti-Kickback Statute with respect to the Buyer’s purchase of Products, any state laws comparable to the Federal Anti-Kickback Statute, and the U.S. Safe Medical Devices Act of 1990.
- Discounts and Reporting. Pricing terms for the Products reflected on the invoice may reflect a discount or reduction in price (including discounts, rebates, free goods and contractual allowances) that must be reported in connection with any costs claimed or charges made to federal health care programs in accordance with the provisions of 42 U.S.C. § 1320a-7b(b)(3)(A) and/or 42 C.F.R. § 1001.952(h) and any other federal, state or private payer requirements. Buyer agrees that it shall (i) fully and accurately disclose the cost of all Products (including any components) provided to Buyer, including any discounts, rebates or other price reductions, in cost reports or claims for reimbursement by Buyer to Medicare, Medicaid or other healthcare programs requiring such disclosure; (ii) provide such documentation to representatives if the Secretary of the Department of Health and Human Services or SPR, as applicable, upon request; (iii) ensure the discount, rebate or other price reduction is based on purchases of the same good bought within Buyer’s fiscal year; and (iv) claim the benefit in same fiscal year or the following year in which the discount, rebate or price reduction is earned. Unless otherwise noted, the value of any Products listed as $0.00 on any invoice may constitute a discount, which should also be evaluated by Buyer when filing such reports. Furthermore, Buyer represents and warrants that it has independently determined that the Products are in the best clinical interest of Buyer’s patients.
- Payment Terms. Provided that Buyer meets SPR’s credit requirements, payment will be due net thirty (30) days from the date of SPR’s invoice, unless otherwise agreed in writing. All payments must be made in U.S. Dollars. SPR reserves the right to charge at any time a monthly service charge of 3% or the highest rate allowed by law, whichever is lower, on accounts that are not paid when due, effective as of the first day after the due date. If Buyer fails to fulfill the terms of payment or does not meet SPR’s continuing credit requirements, SPR will have the option to decline to accept orders or fulfill pending orders, delay any shipment until payment for past orders is received by SPR, declare all outstanding sums immediately due and payable, and/or condition any future orders on terms specified by SPR. In the event of default in payment, Buyer will pay all costs of collection incurred by SPR including collection agency fees, attorneys’ fees, and court costs. All orders are subject to current credit approval.
- Delivery Terms and Title. Unless otherwise agreed by SPR in writing, all shipments to points in the U.S. will be delivered by SPR FOB from SPR’s U.S.-based shipping point. In the case that Buyer advises SPR that it will arrange and take responsibility for shipment of Products from SPR’s U.S.-based shipping point, SPR will arrange for Buyer’s freight forwarder and/or carrier(s) to transport the Products to Buyer’s specified location. Title to and risk of loss or damage for all Products will pass to Buyer upon SPR’s delivery of the Products to the carrier. In all cases of damage and/or loss to Products in transit, Buyer will be responsible for making claim(s) against the carrier; provided, however, that SPR will provide reasonable assistance with damage and/or loss claims. Loss or damage will not relieve Buyer of any obligations for payment or obligations under these Terms & Conditions. Delivery dates provided by SPR are estimates only. Unless otherwise agreed by SPR in writing, shipping, freight, handling, insurance, and related costs are the sole responsibility of Buyer and will be “pre-paid and added” or otherwise invoiced to Buyer. Expedited orders received by 12:00 P.M. Eastern Time will be shipped on the same business day subject to product availability.
- Changes to Product Order. After acceptance by SPR, Buyer’s order will not be subject to cancellation or reduction in any amount without SPR’s written consent. Any other changes to an order requested by Buyer will require the prior written approval of SPR, which approval may be subject to price adjustments as determined on a case-by-case basis.
- Return Product Policy. Authorization to return Products is required for all returns and may be withheld at the sole discretion of SPR. Defective Product must be returned to SPR within thirty (30) days from the invoice date, under a Return Goods Authorization (RGA) obtained from SPR. SPR will examine the returned Product and determine whether it is defective under the terms of the Limited Warranty below. Product that is opened (including the opening of and/or tampering with any packaging), damaged, expired or tampered with may not be returned for credit at any time except when a warranty claim is made. Shipping damage claims must be made by Buyer directly with the shipping company in accordance with such company’s policies, and Buyer will advise SPR of such claims. Products which have been opened (including Products for which the packaging has been opened or tampered with in any way) – regardless of whether they were exposed to human tissue in any way, should be returned using an SPR-provided biohazard shipping bag and box (or similar) to ensure potentially biohazardous materials are properly quarantined to prevent exposure and/or contamination of processing personnel and in compliance with SPR’s Return Goods Handling Work Instructions.
- Confidential Information. All non-public information SPR provides to Buyer, and in particular, information relating to pricing , use and support of the Products, shall be deemed “Confidential Information.” Subject to its disclosure obligations described in these Terms and Conditions, Buyer agrees not to disclose such Confidential Information to any third party, or to use such information for any other purpose. SPR is not a Business Associate as defined in the Health Insurance Portability and Accountability Act (“HIPAA”). The functions SPR performs, including providing guidance on the safe use of SPR’s Products, do not require the use or disclosure of Protected Health Information (“PHI”). To the extent any disclosure of PHI does occur, it is incidental and covered under the incidental disclosure rule found in 45 CFR § 164.502(a)(1).
- Force Majeure. Except with respect to payments owed, neither SPR nor Buyer assumes liability or will be liable to the other for any failure or any delay in fulfilling its obligations caused, in whole or in part, directly or indirectly, by fires, natural disasters, strikes, shortages of raw materials, supplies or components, retooling, upgrading of technology, delays of carriers, embargoes, government orders or directives, terrorist activities, or any other circumstance beyond their reasonable control.
- Governing Law and Venue. These Terms and Conditions, any sales of Product by SPR to Buyer, and any claim, dispute, or controversy between SPR and Buyer shall be governed by and construed in accordance with the Laws of the State of Ohio without regard to conflicts-of-law principles, and dealt with under the exclusive jurisdiction and exclusive venue of the federal or state courts located in the Northern District of Ohio. SPR and Buyer expressly and irrevocably agree to submit to the jurisdiction of such courts.
- No Resale. Buyer represents to SPR that it is purchasing the Products to provide to its patients for the patient’s own use and Buyer shall not resell the Products to any third party for sale or resale.
- Limited Warranty; Limitation of Liability. SPR warrants to Buyer that Products manufactured by SPR that are sold to Buyer will be free from defects in material and workmanship under normal use consistent with regulatory clearance for the earlier of: (a) the expiration date of the Products; or (b) one (1) year from the date of delivery of the Products (“Limited Warranty”). The sole and exclusive remedies for failure of the Product to meet the foregoing warranty are, at SPR’s option, either: (a) replacement of the defective Product; or (b) credit for the affected Product. Product complaints may be reported to SPR at any time, but to qualify for the foregoing warranty the defective Product must be returned to SPR in accordance with the return procedure described in the “Return Product Policy” above. The foregoing Limited Warranty shall be void with respect to any Product that following delivery: (a) has been subject to accident, abuse, misapplication, improper modification; or (b) has been improperly stored or used, (c) has expired; or (d) has been used for something other than the Product’s intended purpose. Buyer assumes all liability resulting from the misuse or abuse of the Product.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, SPR IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, BASED ON ANY DEFECT, FAILURE OR MALFUNCTION OF THE PRODUCT, WHETHER THE CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE, AND WHETHER OR NOT SPR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT AS EXPRESSLY PROVIDED IN THIS LIMITED WARRANTY, SPR MAKES NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF DESIGN, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, WHETHER ARISING FROM STATUTE, COMMON LAW, CUSTOM OR OTHERWISE. THIS LIMITED WARRANTY WILL NOT BE EXPANDED OR OTHERWISE MODIFIED BY SPR’S RENDERING OF TECHNICAL OR OTHER ADVICE OR SERVICE IN CONNECTION WITH THE PRODUCTS.
SPR makes no representation or warranty that the Product, in the environment of the human body, will not fail or the human body will not react adversely to the use or implantation of the Product. Suitability of the Product for a particular patient is solely a matter of the professional medical judgment of the treating medical provider(s).
This Limited Warranty is made only to, and the remedies set forth in this Limited Warranty are only available to, the original purchaser of the Product. No person has any authority to change any of the foregoing or assume or bind SPR to any additional liability or responsibility in connection with this warranty. Buyer’s use of this Product shall be deemed acceptance of the terms and conditions of this Limited Warranty.
If any part or term of this Limited Warranty is held to be illegal or unenforceable by a court of competent jurisdiction, the validity of the remaining portions of this Limited Warranty shall not be affected, and the rights and obligations shall be construed and enforced as if this Limited Warranty did not contain the part or term determined to be illegal or unenforceable.
Last Updated: May 26, 2022