Sales Agreement - Terms and Conditions

WHEREAS, in December 2019, a novel coronavirus known as SARS-CoV-2 was first detected in the People’s Republic of China, causing outbreaks of the coronavirus disease COVID-19 that has now spread globally;

WHEREAS, SARS-CoV-2, the virus that causes COVID-19, can cause a serious or life-threatening disease or condition, including severe respiratory illness or death to humans infected by this virus;

WHEREAS, on March 13, 2020, the President of the United States issued a Proclamation that the COVID-19 outbreak in the United States constitutes a national emergency; 

WHEREAS, on March 24, 2020, the United States Secretary of Health and Human Services (“HHS”) declared that circumstances exist justifying the authorization of emergency use of medical devices due to shortages during the COVID-19 pandemic pursuant to Section 564 of the U.S. Food, Drug and Cosmetic Act (“FD&C Act”);

WHEREAS, Buyer wishes to purchase, and Seller wishes to provide, the Supplies hereunder pursuant to FDA enforcement discretion;

THEREFORE, the parties agree as follows: 

1. Offer, Acceptance, and Modification. This is Seller's offer to Buyer to enter into the sales agreement described in this document, and its attachments, and it shall be the complete and exclusive statement of such sales agreement ("Sales Agreement"). Buyer shall accept the offer in writing or by paying the specified amount by the specified date. Modifications proposed by Buyer are not part of the Sales Agreement in the absence of Seller's written acceptance. This Sales Agreement is intended to cover the sale of goods and/or services, as described in this document and its attachments (“Supplies”).

2. Payment. (a) Unless otherwise specified, payment for Supplies must be made in full within 30 days of date of Seller's invoice. Seller will add state and local taxes to the price unless Buyer has provided a valid exemption certificate or direct pay permit. Additional payment terms may be specified in an attachment. (b) Buyer agrees that Seller may levy a finance change on past-due receivables and/or late payments.

3. Delivery. Seller shall deliver the Supplies in accordance with this Agreement or as otherwise set forth in an attachment. Seller will deliver the Supplies, carriage and insurance paid (CIP), to the address supplied at checkout (the “Point of Delivery”).

4. Warranty and Liability. Seller warrants that the Supplies will conform to the applicable drawings and specifications and will be free of defects in design (to the extent that Seller furnished the design), materials and workmanship. SELLER EXPRESSLY DISCLAIMS, AND DOES NOT AGREE TO PROVIDE, ANY WARRANTY REGARDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AS RELATES TO SUPPLIES.

EXCEPT AS EXPRESSLY SET FORTH HEREIN, SELLER WILL HAVE NO LIABILITY FOR ANY USE OF THE SUPPLIES IN ANY APPLICATION.

5. Excusable Delays. Neither Buyer nor Seller shall be liable for a failure to perform that arises from causes or events beyond its reasonable control and without its fault or negligence, including labor disputes of any kind.

6. Assignment and Advertising. Neither Seller nor Buyer shall assign all of its rights under this Sales Agreement without the other's written approval. Neither party shall refer to the other in advertising or public releases, or use any of the other's trademarks, without that party's prior written approval.

7. Applicable Law and Dispute Resolution. This Sales Agreement shall be governed by the law of the State of Michigan, and litigation on contractual causes arising from this Sales Agreement shall be brought only in Michigan. The Parties agree and acknowledge that this Agreement and Seller’s manufacture and production of Equipment is intended to be covered by the Public Readiness and Emergency Preparedness Act (“PREP Act”), and Seller shall be afforded immunity for any Covered Activities as defined under the PREP Act.

8. Remedies and Waiver. The individual remedies reserved in this Sales Agreement or in any document relating to this transaction will be in addition to any remedies provided by law. No waiver of any breach of any provision hereunder will constitute a waiver of any other breach of such or any other provisions.

9. Subcontracts. Seller may subcontract to another any portion of its responsibilities hereunder without the prior written consent of Buyer.

10. Resale Price Expectation. Please note and convey to your members our resale price expectation. Seller is manufacturing and selling the Supplies in order to provide a product that is vitally needed for the response to the COVID-19 pandemic. Seller intends to price near its own cost and does not intend to make a profit on the sale of the Supplies. Accordingly, while Seller is not setting a required resale price for the Supplies, Seller expects that purchasers of the Supplies will also price at or around their own cost, if they choose to resell the Supplies. To the extent that Buyer does not adhere to this expectation, Seller reserves the right to refuse to make any further sales to Buyer