Terms and Conditions of Sale

1. Eligibility; Account-Based Purchasing

• (a) Customer represents and warrants that it is a licensed healthcare professional, healthcare institution, hospital, clinic, ambulatory surgery center, or other qualified purchaser or medical entity; or a duly authorized distributor purchasing on behalf of such entities. Customer shall provide, upon request, professional credentials, including license numbers, NPI, or institutional affiliation, and consents to verification by ES. ES reserves the right to approve, deny, suspend, or terminate any account or order in its sole discretion. ES may, but is not obligated to, verify any credentials or information provided by Customer and shall be entitled to rely on Customer’s representations and warranties regarding its qualifications and authorization to purchase and use the Products.
• (b) Certain Products may be classified as prescription medical devices (“Rx Only Devices”). In accordance with applicable U.S. law, including regulations of the U.S. Food and Drug Administration (“FDA”), such devices are restricted to sale by or on the order of a licensed healthcare practitioner. Customer represents and warrants that it is authorized to purchase and use such Products in compliance with all applicable laws and regulations.
• (C) Customer’s submission of an order on this website is an acknowledgment by Customer of Customer's representations as set forth in (a) and (b) above.

2. Professional Use; Regulatory Responsibility.

Customer acknowledges and agrees effective on the placement of each order for Product that:

• Products are restricted under U.S. Federal Law to sale by or on the order of a physician (or properly licensed practitioner) and are not intended for consumer use.
• Customer is solely responsible for ensuring that the Products are used in accordance with the information supplied by manufacturer of the Products, applicable laws, regulations, and professional standards;
• Customer is solely responsible for ensuring that storage or transport conditions comply with the conditions set by the manufacturer of the Product.
• Customer shall ensure that all personnel using the Products are properly trained and qualified.

3. Price and Payment

• (a) All prices are Ex Works (Incoterms® 2020) ES’s shipping facility. All prices exclude applicable United States federal, state, and local taxes as well as any applicable foreign taxes, which will be the responsibility of Customer and unless Customer is exempt therefrom and ES has received proper documentation therefor, such taxes will be added to the price of the Product or billed separately to Customer where ES has the legal obligation to collect the taxes. Customer is responsible for providing valid and complete tax exemption documentation prior to purchase. In the absence of such documentation, ES shall charge applicable taxes as required by law.
• (b) All duties, freight, insurance, tariffs, shipping, and similar charges shall be the sole responsibility of Customer. Unless otherwise approved by ES in writing all payment terms are prepayment in U.S. dollars. ES reserves the right to require advance payment, suspend shipments, or revoke credit if Customer fails to meet payment obligations or ES determines that Customer’s financial condition is impaired.

4. Shipping, Risk of Loss, Delivery

Title to and risk of loss pass to Customer upon delivery of the Products to the carrier, courier service, freight forwarder, or Customer’s designated agent at ES’s facility. Delivery dates are estimates only and ES shall not be liable for delays. Customer is responsible for all freight claims and shall insure shipments as appropriate. In all cases of damage and/or loss to Products in transit, Customer will be responsible for making claim(s) against the carrier; provided, however, that ES will provide reasonable assistance with damage and/or loss claims. Loss or damage will not relieve Customer of any obligations for payment or other obligations under this Agreement.

5. Inspection; Acceptance; Returns

Customer 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. However, shipping damage claims must be made by Customer directly with the shipping company in accordance with such company’s policies, which generally require such claims to be made prior to the time the carrier of the Products leaves the delivery destination. Customer will advise ES of such claims. The terms and conditions for returning any Products purchased from ES will be those contained in ES’s Returned Material Authorization Policy (“RMA”) in effect as of the date of shipment of the Products to Customer. No returns shall be permitted without a prior RMA issued from ES. Unauthorized returns may be refused and returned at Customer’s expense. Returned Products may be subject to restocking fees. If Customer fails to accept delivery or improperly rejects Products, ES may store or dispose of such Products at Customer’s cost and risk, without limiting any other rights available to ES.

6. Force Majeure

ES shall not be liable for any delay or failure in performance caused, in whole or in part, directly or indirectly, by acts of God, fires, natural disasters, labor disputes, shortages of raw materials, supplies, or components, supply chain disruptions, retooling, upgrading of technology, delays of carriers, embargoes, government actions, terrorist activities, or any other circumstance beyond the reasonable control of ES. ES may at its option and sole discretions suspend deliveries while such event or circumstance continues, apportion available Product between its customers as it determines, or cancel affected orders without liability and with immediate effect by written notice to Customer.

7. Terms of Sale; Rejection of Customer Terms

These Terms constitute the exclusive and entire binding Agreement between ES and Customer regarding the purchase, use, and/or resale of Products, services and support from ES and supersede all prior and contemporaneous communications, agreements, and understandings, whether written or oral, between the parties. ES expressly rejects any additional or inconsistent terms contained in any purchase order, proposal, standing order, letter of authorization, or other document issued by Customer. Acceptance of any order is expressly conditioned upon Customer’s assent to these Terms. No modification shall be binding unless in a writing signed by an authorized officer of ES. No additions, conditions, amendments, alterations, or modifications by Customer or any other person, whether oral or contained in any other document submitted from Customer to ES will be binding on ES, regardless of ES’s failure to object or ES’s shipment of Products,

8. Modification of Orders

Once accepted by ES, orders may not be cancelled, rescheduled, reduced, or modified without ES’s prior written consent. ES reserves the right to adjust pricing and delivery schedules and other terms in connection with any approved modifications.

9. Professional Use; No Consumer Sales

Products are intended solely for professional use by qualified healthcare providers. Customer shall not sell or transfer Products to consumers, use Products outside approved labeling or instructions, or permit use by unqualified personnel. Customer is solely responsible for ensuring that all users are properly trained and licensed.

10. Regulatory Compliance; FDA Obligations: Compliance, Traceability, Tracking, Complaints, and Recalls

• (a) Customer shall ensure that Products are used only in accordance with applicable approvals, labeling, and instructions. For all Products that are medical devices, Customer acknowledges that it is subject to applicable U.S. laws and regulations, including the reporting requirements under the Federal Food, Drug, and Cosmetic Act and the regulations of the FDA, including, where applicable, 21 CFR Part 803 (Medical Device Reporting) and 21 CFR Part 821 (Device Tracking). Customer agrees to promptly notify ES of any complaints, adverse events, or safety-related issues involving the Products of which Customer becomes aware, including any event that may require reporting to the FDA. Customer shall cooperate with ES in connection with any regulatory reporting, investigation, or corrective action, including recalls or field safety actions, as reasonably requested by ES.
• (b) Customer shall maintain records sufficient to ensure traceability of Products, including lot and serial numbers where applicable, comply with all applicable device tracking requirements under U.S. law, promptly notify ES of any complaints, adverse events, or safety issues, and fully cooperate with ES in connection with any recall, field correction, or safety notice. Customer will cooperate fully with ES in dealing with complaints concerning the Products and will take such action to resolve such complaints as deemed necessary or appropriate by Customer or as may be otherwise reasonably requested by ES.
• (c) Customer agrees to report to ES any complaint regarding a Product of which Customer becomes aware within 5 working days of receiving the complaint or 2 calendar days if a death or serious injury is involved. Customer agrees to assist ES to facilitate the resolution of complaints. For purposes of this Agreement, a complaint can be the occurrence of any of the following: (i) receipt of any Product(s) quality claims, medical claims or complaints or other written claims or complaints; or (ii) receipt of any written communication from any applicable regulatory agency pertaining to a Product.

11. Product Specifications; Intellectual Property

All Product specifications, designs, manufacturing processes, and related intellectual property are the exclusive property of ES, its affiliates, or its licensors. Customer shall not reverse engineer, modify, or create derivative works of the Products without ES’s prior written consent. Except as necessary solely for the intended professional use of the Products, nothing herein grants Customer any license or rights, implied or otherwise, for the use of any patents, know-how, or intellectual property rights of ES, its affiliates, or its licensors.

12. Warranty Statement, Disclaimers, and Limitations

• (a)

  Limited Warranty

  ES warrants that Products shall be free from defects in materials and workmanship for a period of six months (6) months from shipment from ES’s facility.

• (b)

  Remedies

  Notice of a defective Product under warranty must be given to ES in writing within 10 days following the discovery of such defect. Any oral or written statement concerning the Products inconsistent with the limited warranty set forth herein will be of no force or effect. Any Products returned due to a defect will be subject to receipt of an RMA. ES’s SOLE LIABILITY under the warranty will be, at ES’s option, to either replace or repair the defective Product(s) or refund or credit the purchase price to Customer. This will be Customer’s exclusive remedy for a covered defect.

• (c)

  Exclusions

  The warranty does not cover and ES will have no warranty obligation whatsoever with respect to any damage to a Product caused by or associated with: (i) usage not in accordance with Product instructions, applicable regulations, or usage for a purpose not indicated on the labeling; (ii) abuse, misuse, neglect, improper installation or maintenance, storage, improper handling, accident, vandalism, or the acts, omissions or negligence of any party other than ES; (iii) external causes, including natural disasters, acts of God, power failure; (iv) use of unauthorized third party consumables and accessories with the Product; or (v) modifications, repair, use or alterations to a Product not authorized by ES.

• (d)

  Disclaimer

  EXCEPT AS EXPRESSLY PROVIDED ES MAKES NO REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, QUALITY OF INFORMATION, QUIET ENJOYMENT OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, NON- INTERFERENCE, OR NON-INFRINGEMENT WITH RESPECT TO THE PRODUCTS SOLD, OR WITH RESPECT TO ANY OTHER MATTER PERTAINING TO PRODUCTS BEING PROVIDED BY ES HEREUNDER. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, SHALL ES OR THEIR RESPECTIVE AFFILIATES BE LIABLE TO CUSTOMER, ITS AFFILIATES, AND ANY OTHER PERSON FOR ANY INCIDENTAL DAMAGES, EXEMPLARY DAMAGES, INDIRECT OR CONSEQUENTIAL DAMAGES, TO INCLUDE, BUT NOT LIMITED TO, LOSS OF PROFITS, LOST REVENUES, LOSS OF USE, RECORDS, BUSINESS, GOODWILL, DATA, AND SOFTWARE; LOSS FROM WORK STOPPAGE OR IMPAIRMENT OF OTHER GOODS OR DELIVERY OF SERVICES; AND LOSS OF ANTICIPATED SAVINGS OR OTHER ECONOMIC LOSS; INCLUDING ANY DAMAGES ARISING FROM OR WITH RESPECT TO ANY MATTER PERTAINING TO PRODUCTS BEING PROVIDED BY ES HEREUNDER, WHETHER OR NOT CUSTOMER WAS INFORMED OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED HEREIN.

• (e)

  Limitation on Damages

  ES’S TOTAL AGGREGATE LIABILITY TO CUSTOMER FOR ANY LOSSES, DAMAGES, AND CAUSES ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR SUPPLY OF THE PRODUCTS HEREUNDER, WHETHER SUCH DAMAGES ARISE BY CONTRACT, TORT (INCLUDING NEGLIGENCE), UNDER STATUTE, OR OTHERWISE, SHALL BE THE LESSER OF ES’s (i) REVENUE FROM CUSTOMER OF THE AFFECTED PRODUCTS IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE CLAIM, OR (ii) $5,000.

13. Indemnification

• (a) To the fullest extent permitted by law, Customer will indemnify, defend, and hold harmless ES, including ES’s officers, directors, agents, employees, subsidiaries, affiliates, parents, successors, and assigns, from and against any claim, demand, cause of action, debt, liability, loss, fine, damage, or expense (including reasonable attorneys’ or legal fees, expenses, and court costs) (collectively, “Liabilities”) that relates to: (i) Customer’s modification of or addition to any Product(s); (ii) Customer’s breach of these Terms; (iii) Customer’s clinical use, diagnosis, or treatment decisions; (iv) Customer’s gross negligence or willful misconduct; or (v) damage to a third party by any Products distributed or resold by Customer to the extent such claim is based on (a) Customer’s modification of or addition to the Products, misuse or abuse of the Products, or breach of any provision in these Terms; (b) Customer’s failure to abide by all applicable laws, rules, regulations, and orders that affect the Products; (c) Customer’s gross negligence or willful misconduct; or (d) intentional harm to any person or property caused by Customer.
• (b) To the fullest extent permitted by law, ES will indemnify, defend, and hold harmless Customer, including Customer’s officers, directors, agents, employees, subsidiaries, affiliates, parents, successors, and permitted assigns, from and against any Liabilities arising out of a third party claim (i) for bodily injury to or property damage to the extent caused by a defect in a Product purchased from ES; (ii) to the extent caused by ES’s breach of these Terms; or (iii) to the extent caused by ES’s gross negligence or willful misconduct. ES is not required to indemnify Customer to the extent that any claim arises out of Customer’s gross negligence or willful misconduct or use of a Product by any person or entity other than in accordance with ES-approved Product labeling, including, without limitation, any restrictions on re-use of Products.

14. No Medical Advice

ES does not provide medical advice. All clinical decisions are the sole responsibility of the licensed healthcare professionals utilizing the Products.

15. Confidential Information

Except for information that Customer demonstrates was in Customer’s possession prior to receipt from ES, Customer agrees that all information of ES, whether written or oral, that is furnished by ES to Customer concerning the business and affairs of ES or is learned by Customer during discussions or communications between Customer and ES, is proprietary to ES, and Customer will hold such information in confidence and will not use or disclose such information without ES’s prior written consent, except for the matters relating to the fulfillment of this Agreement and purchase of Product.

16. Export Controls; Sanctions

Customer agrees to comply with all applicable U.S. export control and economic sanctions laws and shall not export, re-export, or transfer Products to prohibited countries, entities, or individuals.

17. E-Commerce, Electronic Acceptance, Right to Correct Errors

Orders placed through ES’s website constitute binding electronic acceptance of these Terms and constitutes an Agreement between the parties. Customer agrees that electronic agreements are legally enforceable and that ES may rely on electronic records of transactions. ES shall not be responsible for typographical errors, inaccuracies, or omissions relating to Product descriptions, pricing, or availability displayed on its website. ES reserves the right to correct any such errors and to cancel or refuse orders based on incorrect information, including after an order has been submitted.

18. Suspension and Termination

ES may suspend or terminate Customer’s account or refuse orders at any time for breach of these Terms, regulatory concerns, or failure to meet eligibility requirements.

19. Federal Program Participation

ES represents and warrants that neither it nor any of its current directors, officers, or key personnel: (i) are currently excluded, debarred or otherwise ineligible to participate in federal health care programs as defined in 42 U.S.C. §1320a-7b(f) (the “Federal Healthcare Programs”); (ii) have been convicted of a criminal offense related to the provision of healthcare items or services during the last 5 years; or (iii) have been excluded, debarred or otherwise declared ineligible to participate during the last 5 years in Federal Healthcare Programs. ES will notify Customer of any change in the status of the representations and warranties set forth above.

20. Choice of Law and Venue

These Terms shall be governed by the laws of the State of Nevada, without regard to conflict-of-law principles. Customer irrevocably submits to the jurisdiction of the state and federal courts located in Washoe County, Nevada. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.

21. Miscellaneous

• (a) No waiver of any provision hereof will be effective unless in writing and signed by an officer of the waiving party. Any waiver will be limited to the circumstance or event specifically referenced in the written waiver document and will not be deemed a waiver of any other term of this Agreement or of the same circumstance or event upon any recurrence thereof. The failure of either party to enforce any provision of this Agreement at any time will not be construed to be a waiver of such provision nor of the right of such party thereafter to enforce such provision.
• (b) No provision of this Agreement will be deemed to create a partnership, joint venture, or other combination between ES and Customer. Customer and ES are independent contractors. Neither party will make any warranties or representations or assume any obligations on the other party’s behalf. Neither party is or will claim to be a legal representative, partner, agent, or employee of the other party. Each party is responsible for the direction and compensation, and is liable for the actions of its employees, agents, and subcontractors.
• (c) The section headings used herein are for convenience of reference only and do not form a part of this Agreement, and no construction or inference will be derived therefrom.
• (d) Customer will not assign, delegate, or permit any other transfer of this Agreement (by stock sale, merger, or otherwise) without ES’s prior written consent. Customer will not, without the prior written consent of ES, appoint any distributors or sub-distributors in connection with the performance of this Agreement.