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Standard Terms and Conditions of Sale – Direct Customers

ALL SALES ARE SUBJECT TO AND EXPRESSLY CONDITIONED UPON THE TERMS AND CONDITIONS CONTAINED HEREIN (“TERMS AND CONDITIONS”), WHICH ARE ACCEPTED BY THE CUSTOMER UPON PLACING AN ORDER FOR PRODUCT(S) WITH Trinity Medical Devices Inc. (“TMDI”) ONCE CONFIRMED BY TMDI AND CONSTITUTE THE ENTIRE AGREEMENT BETWEEN TMDI AND CUSTOMER (EACH A “PARTY”, AND COLLECTIVELY, THE “PARTIES”). NO VARIATION OF THESE TERMS AND CONDITIONS WILL BE BINDING UPON TMDI, UNLESS AGREED TO IN WRITING AND SIGNED BY AN AUTHORIZED EMPLOYEE.
 
TMDI HEREBY REJECTS ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED BY CUSTOMER, WHETHER CONTAINED IN ANY FORMS OR ON CUSTOMER’S WEBSITE, AND ANY SUCH ADDITIONAL OR DIFFERENT TERMS WILL BE OF NO EFFECT.  No site usage agreement or any other click through agreement on a website will have any binding effect, regardless as to whether or not TMDI clicks on an “ok,” “I accept”, or any similar acknowledgment.
 
By placing a purchase order, Customer is deemed to have accepted these Terms and Conditions. These Terms and Conditions supersede any agreement or document, including terms and conditions that are part of a purchase order or other document, sent to TMDI by Customer.  Notwithstanding the foregoing, if Customer’s purchase order sets forth fees or changes mandated by applicable law, TMDI shall pay such fees or charges but all other terms and conditions contained therein shall be superseded.


1.  Orders. Customer shall comply with TMDI’s ordering instructions, which are attached hereto and incorporated herein as Exhibit A.

2.  Delivery; Risk of Loss. Title and risk of loss for Products shall pass from TMDI to Customer at the time TMDI provides the Products to the carrier at TMDI’s facility.
3.  Acceptance. Products will be deemed accepted by Customer upon delivery, unless Customer reports any damage or defective Products within ten (10) business days from TMDI’s invoice date. All proof of delivery requests must be made within thirty (30) days of invoice date.

4.  Price. All prices for the Products are subject to change without notice. Pricing errors may be corrected at any time. TMDI may, at any time and without obligation, suspend performance or require payment in cash, security, or require other adequate assurances satisfactory to TMDI when, in the sole opinion of TMDI, the financial circumstances of Customer warrant such action.

5.  Taxes. Prices and fees stated for Products do not include any taxes. Customer shall pay when due any sales, property or other taxes or other assessments of any kind (other than any tax based solely on TMDI’s net income) and related interest and penalties arising from Customer’s acquisition or possession of the Products. If Customer is exempt from any taxes, Customer will not be relieved of its obligation to pay such taxes until Customer provides to TMDI documentation sufficient to establish Customer’s tax-exempt status. Customer will immediately notify TMDI in writing of any change in its tax-exempt status.
6.  Payment Terms; Late Charge. Customer shall pay all TMDI invoices in full within thirty (30) days from invoice date. All disputes regarding invoices must be submitted to TMDI within thirty (30) days of invoice date. Deductions on remittances are not permitted unless accompanied or referenced by a valid TMDI credit memorandum. If Customer does not pay an amount due by the due date, then TMDI may impose a late charge on the unpaid amount at the rate of one and one-half percent (1.5%) per month or the highest rate allowed by law (whichever is lower), prorated on a daily basis.

7.  Limited Warranty. In the absence of a written Product warranty accompanying a Product or available electronically when delivered to Customer, the Products manufactured by TMDI shall perform in accordance with TMDI’s material specifications for such Product (the “Limited Warranty”). If a Product fails to perform in accordance with the Limited Warranty because of a defect in workmanship or material, then, as Customer’s sole remedy (not limiting any right to indemnification pursuant to Sections 10 and 11), TMDI shall promptly repair or replace, at TMDI’s sole option, the Product, or any part thereof. EXCEPT AS EXPRESSLY SET FORTH ABOVE, TMDI HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES REGARDING THE PRODUCTS, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The Limited Warranty does not apply to any Product that: (i) has been modified, repaired or altered, except by TMDI, (ii) has not been properly installed, used, handled, operated or maintained in accordance with any handling or operating instructions provided by TMDI, or (iii) has been subjected to physical or electrical stress, misuse, abuse, negligence, accidents or causes beyond TMDI’s reasonable control. Product warranties extend only to the original Customer and are not assignable or transferable by Customer.
8.  Restriction on Use of Products. Customer shall use each Product only: (i) for Customer’s internal use and not for resale, (ii) in the manner described in the Product’s accompanying documentation, and (iii) in accordance with applicable laws and regulations. Customer shall not remove or alter any tags, labels or identifying markings placed by, or on behalf of, TMDI on any Products or packaging.
9.  Returns. Product returns and replacements are subject to TMDI’s Returned Goods Policy, attached hereto and incorporated herein as Exhibit B.
10.  Mutual Indemnification. Each Party (“Indemnifying Party”) shall indemnify and defend the other Party (the “Indemnified Party”) against any demand, action, claim, suit or proceeding asserted against the Indemnified Party by a third party for losses, injuries, or damages caused by the Indemnifying Party’s negligent acts or omissions in connection with these Terms and Conditions.
11.  Product Recall. Should a Product recall based on consumer safety issues or other regulatory concerns, as identified by the U.S. Food and Drug Administration, as cause for a Product recall occur, or as a result of TMDI’s willful misconduct or negligence in the manufacture of the Product (“Recalled Product”), TMDI agrees: (i) to reimburse Distributor for the Product price paid to TMDI by Distributor pursuant to this Agreement attributable to the Recalled Product; and (ii) to pay for the return shipment from any location and destruction of the Recalled Product.  The decision to initiate a recall or to take some other corrective action, if any, shall be made and implemented by TMDI.  TMDI shall control such recall or corrective action and Customer shall cooperate as reasonably required by TMDI.  Nothing herein shall be construed to require payment by TMDI to Customer for any additional costs, fees, premiums or penalties, including but not limited to lost profits, lost market share, advertising fees, increased future costs, or compensatory, anticipatory, or other damages.
12.  Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS OR PROFITS), WHETHER BASED IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS OF LIABILITY WILL APPLY EVEN IF THERE IS A FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THESE TERMS AND CONDITIONS. THE TOTAL LIABILITY OF TMDI, IF ANY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIM OF ANY KIND WHATSOEVER, REGARDLESS OF LEGAL THEORY, WILL NOT BE GREATER THAN THE ACTUAL PURCHASE PRICE OF THE TMDI PRODUCTS GIVING RISE TO SUCH CLAIM. NOTWITHSTANDING THE FOREGOING, THE LIMITATION OF LIABILITY SET FORTH HEREIN WILL NOT APPLY TO ANY DEATH, PERSONAL INJURY OR PROPERTY DAMAGE THAT IS CAUSED BY TMDI’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR STRICT LIABILITY IN TORT IN CONNECTION WITH TMDI PRODUCTS.
13.  Proper Reporting of Discounts and Pricing. Product pricing and rebates (if any) may reflect “discounts or other reduction in price” as that term is used in the “safe harbor” regulations in the Medicare/Medicaid Anti-Kickback Statute, 42 C.F.R. §1001.952(h). The Parties shall: (i) comply with all applicable laws and regulations relating to the accounting, application, and proper reporting of discounts and pricing under  these Terms and Conditions, including but not limited to the requirements of the discount “safe harbor” located at 42 C.F.R. §1001.952(h), (ii) properly report and appropriately reflect all prices paid under these Terms and Conditions net of all discounts as required by applicable laws and regulations, including but not limited to on Medicare, Medicaid and state agency cost reports, and (iii) retain a copy of these Terms and Conditions and all other documentation regarding these Terms and Conditions, together with the invoices for purchase of Products hereunder and shall permit representatives of the U.S. Department of Health & Human Services or any relevant state agency access to such records upon request.
14.  Access to Records. For a period of four (4) years after TMDI has performed these Terms and Conditions, TMDI shall make available, upon written request of the Secretary of the Department of Health and Human Services (“Secretary”), or upon request of the Comptroller General of the United States (“Comptroller”), or any of their duly authorized representatives (collectively, the “Requesting Party”), these Terms and Conditions, any books, documents, and records necessary to certify the nature and extent of the costs paid by Customer to TMDI pursuant to these Terms and Conditions (“Access”). If TMDI pays a subcontractor more than $10,000 over a twelve (12) month period to perform any services in connection with these Terms and Conditions, then TMDI shall obligate the subcontractor to permit Access to the Requesting Party.
15.  Confidentiality. Customer will keep confidential any confidential information disclosed to Customer by TMDI, including without limitation Product pricing, and will not use, publish or disclose, or cause anyone else to use, publish or disclose, TMDI’s confidential information without prior written consent. This obligation does not extend to any information subject to disclosure by legal process or information that Customer can demonstrate with tangible evidence was already known or independently developed by Customer, or publicly available, prior to TMDI’s disclosure. In the event of a disclosure required by law, Customer agrees to provide prompt notice to TMDI prior to any such disclosure.
Customer Policies. TMDI and its employees shall comply with Customer’s reasonable security rules, policies and procedures provided in writing and agreed to in advance by TMDI (“Customer Policies”). Customer will notify TMDI in writing of any material changes to 16.  Customer Policies. Any terms of the Customer Policies that are in addition to or conflict with these Terms and Conditions will have no force or effect unless adopted via a written amendment to these Terms and Conditions signed by each Party.
17.  General.

a. Customer Representation. Customer represents that it is a hospital or other health care provider or third-party service provider and/or reseller located within the fifty United States or the District of Columbia.
b. Force Majeure. If a Party is reasonably prevented from performing an obligation of these Terms and Conditions because of fire, flood, wind, earthquake, explosion or other disaster, acts of military authorities, acts of civil authorities unrelated to any violation of law by the Party, war, riot, insurrection, act of terrorism or other cause beyond the Party’s reasonable control (collectively, a “Force Majeure Event”), then that Party shall not be in breach of these Terms and Conditions during the period that Party is prevented from performing that obligation, provided that the Party: (i) promptly delivers notice to the other Party identifying the Force Majeure Event, and (ii) immediately uses best efforts to perform the obligation notwithstanding the Force Majeure Event.
c. Assignment. Neither Party may assign any rights or obligations under these Terms and Conditions without the other Party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, provided that TMDI may assign its rights and obligations under these Terms and Conditions without the Customer’s consent: (i) to an affiliate, or (ii) incident to the transfer of all or substantially all of TMDI’s business assets in connection with the subject matter of these Terms and Conditions.
d. Notices. Any notice from one Party to the other Party related to these Terms and Conditions shall be in writing and delivered either by hand, overnight courier or first-class mail (certified or registered, return receipt requested, postage prepaid) to the receiving Party’s contact address on file with the other Party. A notice shall be deemed to be given when delivered if by hand or by overnight courier and three days after it is mailed if by certified or registered mail. Either Party may change its Notice Address upon delivery of notice to the other Party.
e. Severability; Non-Waiver. If a court or other body of competent jurisdiction declares any term of these Terms and Conditions invalid or unenforceable, then the remaining terms shall continue in full force and effect. No right created by these Terms and Conditions shall be deemed waived unless specifically and expressly waived in a writing signed by the Party possessing the right.
f. Governing Law. These Terms and Conditions shall be governed by the laws of the state of Delaware, without regard to that state’s conflicts of law provisions.

These Terms and Conditions (including all exhibits or appendixes attached hereto), constitutes the entire agreement and understanding of the parties regarding the subject matter hereof, and supersedes all prior written and oral agreements, proposals, and understandings between the parties regarding the subject matter of as provided herein. 

EXHIBIT A - Ordering Instructions
 
1. Purchase Orders

a. Customer shall submit its purchase order for the Products to TMDI.  All purchase orders shall be submitted for Products using the published unit of measure.  Unless a Product is sold in an “each” unit of measure, no Products shall be available in an each unit of measure. 

b. TMDI shall endeavor to ship all accepted orders within a commercially reasonable time.

c. TMDI reserves the right to alter orders where quantities are significantly higher than historical norms, or in times of scarce supply. TMDI will notify Customer of any change to order quantity prior to shipment.

d. Customer directed air shipments will be assessed additional shipping and handling charges.

e. Refused deliveries will be subject to the twenty-five percent (25%) restocking fee. Re-delivery of refused Products will be subject to additional transportation charges.

 2. Minimum Order Policy

a. TMDI will accept orders of any size and value; however, a minimum order shipping and handling charge of $100 may be applied for orders less than $1,000 in value, including drop shipment orders in TMDI’s sole discretion.

 3. Rush Orders

a. Rush orders (overnight or second day) carry a rush shipping and handling charge. Freight will be prepaid and charged at time of invoicing.

4. Direct & Drop Ship Orders

a. Requests for drop shipment directly from TMDI will be accepted to ensure uninterrupted customer service.

b. Direct shipments to facilities, including drop shipments but excluding expedited shipments due to TMDI’ s error, will be assessed shipping and handling charges, except for Products designated as drop ship only by TMDI. TMDI’s minimum order policy above shall apply to all drop shipments.

c. Special requests for Saturday delivery must include contact name and telephone information.

5. Reporting Discrepancies

a. Customer shall inspect all deliveries prior to acceptance from the carrier and sign the carrier bill of lading. Discrepancies should be noted on the freight document and countersigned by the carrier.

b. Shipping discrepancies must be reported to TMDI within fifteen (15) business days of invoice date. Discrepancies not noted on packing slip will not be credited.

c. Invoice discrepancies must be reported within thirty (30) days of TMDI’s invoice date via email to customerservice@trinitymdi.com and clearly identified on deductions or debit memo notifications. To the extent Customer’s purchase order has the incorrect pricing and TMDI accepts Customer’s purchase order, Customer shall not be eligible to report an invoice or pricing discrepancy.  Failure to provide timely notification within thirty (30) days of TMDI’s invoice date will be grounds for denial of the claim. Invoice deductions inconsistent with this paragraph will not be allowed and TMDI reserves the right, but not the obligation, to net monies due, to offset outstanding debt due to TMDI.

d. When reporting claims, have available the following:
   i. Purchase information (purchase order and invoice number);
   ii. Type of discrepancy and requested action;
   iii. Product information (TMDI catalog number, lot and/or batch number, and serial #s if applicable);
   iv. Quantity of material per the packing list unit of measure;
   v. Contact information (contact: name, email, telephone and fax number);
   vi. Copy of carrier bill of lading or delivery receipt signed by Customer receiving personnel which includes number of pallets received,  any visible damage noted, and the seal number if a full truckload shipment;
   vii. If possible, include digital photos for damaged, incorrect or otherwise discrepant material
   viii. All proof of delivery requests for shipments must be made within thirty (30) days of invoice date. Any requests made after thirty (30) days will be denied and the invoice will be due and payable in full.

EXHIBIT B - TMDI’s Return Goods Policy
 
Return Goods Policy: Product returns will be accepted only to the extent that such Products were purchased directly from TMDI, and are subject to the following requirements:

1. Returns will not be accepted for full credit without a Return Goods Authorization (“RGA”) issued by TMDI, including returns which are the result of a TMDI error.

2. In order for an RGA to be issued, the request must include the following information:
- Purchase order number
- Customer name and address
- Reason for return
- TMDI catalog number, lot/batch number, expiry date or serial number (if applicable)
- Quantity per the packing list unit of measure terms
- Contact name, email, telephone number​​
- All Product returns must have a copy of the RGA attached with return paperwork.

 
3. An RGA will not be issued, nor will credit be given by TMDI for the following:
- Product returned WITHOUT authorization
- Product not purchased directly from TMDI
- Products returned with conditions that prevent resale.
- Hydrogel-based products with less than a twelve (12) month shelf life remaining.

 4. If such non-resale Product is returned a credit will not be issued and the Product will be destroyed.

 5. An RGA will only be issued to the original Customer ship-to location, or in the case of a drop ship order the Customer sold-to location that originally purchased the Product.

 6. Returned Product must be received in its original, unopened packaging and in salable condition within thirty (30) days of the issuance of the RGA to be eligible for full credit, minus the restocking fee. If returned Product is received after the thirty (30) day expiration of the RGA, TMDI reserves the right to refuse to accept the return or charge additional restocking fees, even if the Product is in saleable condition.

7. Returns are to be shipped only to the designated TMDI location indicated on the RGA form.  To the extent Products are not returned to the TMDI location designated on the RGA, Customer shall not receive credit for said return.
 
8. Customer pays the freight charges for all returns except as otherwise noted in Section 11.

9. Product shipped in error by TMDI will be accepted for return, freight-collect using a TMDI designated carrier. TMDI reserves the right to issue a Certificate of Destruction (“COD”) in place of returning said Product. Applicable credit, if any, will be issued upon receipt by TMDI of the signed COD. The restocking fee will not apply.
 

10. Returns requested within one hundred eighty (180) days from TMDI’s original shipment date are subject to a twenty-five percent (25%) restocking fee. Returns requested one hundred eighty-one (181) days or more from TMDI’s original shipment date will be denied, such Product is not returnable, nor will credit be issued.Type your paragraph here.