Introduction
Welcome to www.motiva.health (the “Site”). Establishment Labs Holdings Inc (referred to as “Establishment Labs”, “we”, “us” or “our”, as applicable) provides you with access to the Site subject to the terms and conditions contained in this Terms of Use Agreement (the “Agreement’). Please read this Agreement carefully. By accessing or using this Site, you agree without restriction to be bound by this Agreement. If you do not agree to follow and be bound by this Agreement, you may not access, use or download materials from this Site.
1. GENERAL
1.1 Applicability of this Agreement. The offer and sale of the Products described in the applicable quote or similar document provided by Establishment Labs (the “Quote”), is conditioned upon the acceptance by the Purchaser of the terms and conditions set forth in this Agreement.
1.2 Purchase Orders; Acceptance. Purchaser agrees to purchase the quantity of the Products specified in purchase orders issued by Purchaser in connection with a Quote and that are accepted by Seller as set forth below (each, a “Purchase Order”). Purchase Orders may be submitted via Motiva’s Webstore application or via email to Seller. Seller may accept or reject purchase orders in its sole discretion. A purchase order will only be deemed accepted by Seller (and thereby become a Purchase Order) if Seller delivers a signed purchase order or other written confirmation to Purchaser within fifteen (15) calendar days after receipt of such Purchase Order. All terms on any Purchase Order other than the description and quantity of Products ordered will not apply to the transactions under this Agreement and are hereby rejected.
1.3 Authorized Use. Purchaser shall not modify or reverse engineer, or permit or encourage others to modify or reverse engineer, the Products. Purchaser shall not use the Products for the benefit of third parties that are not affiliated with or patients of Purchaser.
2. DELIVERY, RISK OF LOSS, PURCHASER ACCEPTANCE
2.1 Delivery Date. The requested delivery date for the Products shall be set forth by Purchaser in the applicable Purchase Order. Seller will provide an estimated delivery date to Purchaser at the time of Seller’s acceptance of the Purchase Order. Seller will use reasonable efforts to meet the delivery dates as quoted but will not be liable for any failure to meet such dates. Partial shipments may be made and invoiced and Seller will use reasonable efforts to notify Purchaser in advance of any partial shipment.
2.2 Acceptance; Risk of Loss; Title. Shipment shall occur, and title to the Products and all risk of loss, damage to or destruction of the Products shall pass to Purchaser, at the delivery point. The Products shall be deemed accepted by the Purchaser upon shipment by Seller.
3. PRICING, TERMS OF PAYMENT, TAXES
3.1 Pricing. The prices payable for the Products are listed in the invoice. Except as otherwise specified herein, (i) fees are quoted by Seller and payable by Purchaser in the applicable currency for the country; (ii) accepted Purchase Orders and payment obligations are non-cancelable and fees paid are non-refundable; and (iii) Seller reserves the right to revise prices.
3.2 Invoicing and Payment. Unless otherwise agreed to in writing by Seller and Purchaser, invoices will be generated by Seller and mailed electronically to Purchaser upon Seller’s acceptance of each Purchase Order in accordance with Section 1.2. Unless otherwise stated in an accepted Purchase Order, invoiced charges are payable thirty (30) days after the invoice date. Purchaser is responsible for timely payment of all invoiced charges and for maintaining complete and accurate billing and contact information on file with Seller.
3.3 Returns. Establishment Labs shall provide pre-paid ground shipping labels for returns of all unused implant products. Any implants not returned within fifteen (15) calendar days of the surgery date will be assumed used, and an invoice will be issued automatically. No credits will be issued for implant products returned later than fifteen (15) calendar days. Returns will only be accepted if all package seals and product integrity are intact upon return and inspection. Non-conforming product will be returned to Purchaser, product and return shipping will be invoiced to Purchaser.
3.4 Disputes. Seller must receive written notice of any disputed charges from Purchaser within fifteen (15) days after the invoice date or
Purchaser shall be deemed to have waived its right to dispute charges. Notwithstanding any dispute, Purchaser shall pay any undisputed amount of the invoice on or before the due date. The dispute notice shall set forth in reasonable detail the information concerning the disputed charges. Seller and Purchaser shall use best efforts to promptly resolve any disputed charges. Purchaser may not set off any amounts due hereunder.
3.5 Late Payment. Any fees not paid when due may accrue interest at the rate of 18% per annum, compounded monthly, or the maximum rate permitted by law, whichever is lower. In addition, in the event that Purchaser fails to make any payment to Seller when due, then Seller will have no obligation to continue performance under this or any agreement with Purchaser.
4. LEGAL COMPLIANCE. Purchaser will comply with all applicable laws and regulations with respect to the Products, including all export laws.
5. WARRANTY
5.1 Limited Warranty. Seller provides a limited warranty (See: https://motivaimplants.com/product-warranty/) with the Products solely to and for the benefit of the end-user (the “User”), as set forth and in accordance with the terms and conditions of the limited warranty to be provided in connection with the shipment of the Product (the “Limited Warranty”).
6. LIMITATIONS OF LIABILITY
THE TOTAL LIABILITY OF SELLER, INCLUDING ITS SUBCONTRACTORS OR SUPPLIERS, ON ANY AND ALL CLAIMS, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR PATENT INFRINGEMENT) OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THE PERFORMANCE OR NONPERFORMANCE OF ANY AGREEMENT RESULTING HERE FROM OR FROM THE MANUFACTURE, SALE, DELIVERY, RESALE, REPAIR, REPLACEMENT OR USE OF ANY PRODUCT RELATING THERETO SHALL NOT EXCEED THE PRICE ALLOCABLE TO THE PURCHASE ORDER WHICH DIRECTLY GIVES RISE TO THE CLAIM. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR PATENT INFRINGEMENT) OR OTHERWISE, SHALL SELLER, OR ITS SUBCONTRACTORS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR REVENUES, LOSS OF USE OF THE PRODUCT OR ANY ASSOCIATED EQUIPMENT OR SOFTWARE OR DATA, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES, SERVICES OR REPLACEMENT POWER OR DOWNTIME COSTS FOR SUCH DAMAGES, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM. PURCHASER ACKNOWLEDGES THAT THESE LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT SELLER WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
7. FORCE MAJEURE.
Seller will use reasonable efforts to complete shipment of Products in accordance with the requested delivery dates, but will not be liable for any loss or damage for delay in delivery, inability to implant or any other failure due to causes beyond its reasonable control including acts of government or compliance with any governmental rules or regulations, acts of God or the public, war, civil commotion, blockades, embargos, calamities, floods, fires, earthquakes, explosions, storms, strikes, lockouts, labor disputes, or unavailability of labor, raw materials, power or supplies.
8. CONFIDENTIAL INFORMATION.
Purchaser shall hold the following information in strict confidence and not disclose the same to any other person or entity except as provided herein: all information, pricing and terms relating to or contained in this Agreement, including any attached Purchase Orders; all data, trade secrets, financial data, pricing, business plans or any other information received from Seller in connection with this Agreement (collectively, “Confidential Information”). Notwithstanding the above, Purchaser may disclose Confidential Information: (i) to the personnel within its organization and its legal and accounting advisors that require the Confidential Information in connection with the party’s rights and obligations under this Agreement, provided that the disclosing party requires any such recipient to use the information solely for these purposes and to keep it strictly confidential; (ii) as required by law, provided that the disclosing party provides reasonable prior notice to the other party to enable such other party to attempt to prevent or limit the disclosure and the disclosing party assists the other party upon request in seeking relief from or limiting the disclosure; and (iii) with the prior written consent of Seller.
9. GENERAL
Seller retains all right, title and interest in and to any and all intellectual property rights in and covering the Products. Purchaser may not assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any rights or obligations under this Agreement without the prior written consent of Seller. Any purported assignment, transfer or delegation by Purchaser shall be null and void. Seller shall have the right to assign this agreement and/or delegate any or all of its obligations hereunder without Purchaser’s consent and without prior notice to Purchaser. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party; and no other act, document, usage or custom shall be deemed to amend or modify this Agreement. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of Belgium, without giving effect to any other choice-of-law or conflict-of-laws rules or provisions (Belgian, foreign or international) that would cause the laws of any jurisdiction other than Belgium to be applicable, and excluding the UN Convention on Contracts for the International Sale of Goods (1980) (“Vienna Convention”) (if applicable). Any dispute arising between the Parties arising out of or in connection with this Agreement and/or any contractual or non-contractual (including pre-contractual) matters in connection with its conclusion, validity, interpretation, enforcement, performance and termination will be subject to the exclusive jurisdiction of the courts of Antwerp (Belgium), without prejudice to Seller’s right to institute proceedings against Purchaser before the courts of any registered office of Purchaser instead of before the courts of Antwerp. If any provision of this Agreement is held to be illegal, invalid or otherwise unenforceable, such provision will be enforced to the extent possible, consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement will continue in full force and effect. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. Notices sent to either party shall be deemed fully and completely given (i) when delivered in person to the party to be notified, (ii) when sent by confirmed electronic mail or facsimile. All communications shall be sent to the respective parties at the address as set forth in the signature block of this Agreement or to such updated address as either party may provide from time to time in compliance with this Section 9.
This Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. In the event of any conflict or inconsistency between this Agreement and any Purchase Orders, acknowledgments, or similar documents, the terms of this Agreement shall govern.