Document MKT-01049, Rev A

By submitting a purchase order (“PO”) to Magnolia Medical Technologies (“Seller”), the Customer agrees to the following Terms and Conditions. These Terms and Conditions, together with any quotation provided by Seller, any applicable label license or patent statement or other written conditions of use provided by Seller for the products subject to the PO ( a ) shall constitute the complete, exclusive and entire agreement between Seller and Customer with respect to purchase(s) of such products, and Seller’s offer to sell such products is expressly limited to such terms, and ( b ) shall control over and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, between Seller and Customer with respect to such PO, and ( c ) shall control over and supersede and replace, to the extent not accepted in writing by Seller, any additional or different terms and conditions contained in any statement in the PO, which additional or different terms and conditions are hereby rejected and shall be void unless specifically accepted in writing by Seller.

To the extent Buyer’s order documents and any terms and conditions contained therein materially alter these Term and Conditions, these Terms and Conditions shall be deemed a counteroffer to any offer made by Customer through Customer’s order documents. Seller reserves the right to withhold any delivery under a PO until such counteroffer has been accepted by Customer, provided, however, that Customer’s acceptance of a shipment of products shall be deemed final acceptance of and agreement to the terms of such counteroffer.

Section 1 – Order Submission

All POs and order-related inquiries must be submitted to Customer Service at [email protected].

To ensure timely processing, PO documents must include, at a minimum:

  • Bill-to address
  • Ship-to address
  • Product SKU(s)
  • Quantity per SKU
    • NOTE: Minimum order quantity for all available SKUs is one (1) case, consisting of 100 units. Partial case shipments are not available.
  • Unit price
  • Requested delivery date (if applicable)

All orders are subject to acceptance and price confirmation by Seller. In the event of any discrepancy between the unit price stated on the PO and Seller’s then-current published or quoted price, Seller’s then-current price shall govern, and Seller will confirm pricing prior to processing.

Section 2 – Order Processing

Orders are to be processed and released for fulfillment by Seller within forty-eight (48) hours of receipt of a complete and verified PO from the Customer, subject to product availability and order verification requirements.

In the event of insufficient inventory, Seller reserves the right to allocate available product among its customers in its sole discretion, to place items on backorder, and to fulfill orders in one or more installments. Seller will use reasonable efforts to notify Customer of any material backorder or allocation.

Section 3 – Shipping

Unless otherwise specified on the PO, orders will be shipped via standard ground service.

  • Standard ground transit time is five (5) to seven (7) business days and may vary by destination.
  • All delivery dates and transit times are estimates only and are not guaranteed.
  • Expedited shipping services are subject to additional charges.
  • All orders are subject to applicable shipping and handling charges.

Section 4 – Delivery Terms

Unless otherwise agreed to in writing:

( a ) Title and Risk of Loss. All shipments are made FOB Origin (Seller’s facility). Title and risk of loss pass to Customer upon delivery of the goods to the carrier at Seller’s facility.

( b ) Freight Charges. Freight is shipped prepaid and added to Customer’s invoice, unless the PO specifies freight collect on Customer’s designated carrier account.

( c ) Carrier Claims. Because risk of loss passes at Seller’s facility, Customer is responsible for filing claims with the carrier for loss or damage occurring in transit. Seller will reasonably cooperate in the submission of such claims.

Section 5 – Order Changes and Cancellations

While orders cannot be rescheduled or canceled, Seller cannot guarantee order change requests but will make reasonable efforts to accommodate requested changes. Fulfillment timing and carrier pickup schedules may limit the ability to modify orders once processing is underway. If Seller incurs additional costs as a result of a requested change, such additional costs will be borne by Customer.

Section 6 – Payment Terms

Unless otherwise agreed to in writing, payment terms are Net 30 days from invoice date.

Seller accepts payment via ACH transfer only. Credit card payments are not accepted.

Orders are subject to credit approval, and Seller may require prepayment, deposits, or other assurances of payment at its discretion. Past-due amounts shall accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by law. If Customer’s account becomes past due, Seller may, without liability, place the account on credit hold and suspend, withhold, or cancel pending shipments until the account is brought current. Customer shall be responsible for all costs of collection, including reasonable attorneys’ fees. To the extent permissible under applicable law, Customer hereby grants to Seller a purchase money security interest in all goods delivered by Seller to Customer, and in any proceeds from the sale thereof, for all amounts owing to Seller for or related to such goods.

Section 7 – Sales Tax

The Customer is responsible for all applicable federal, state, and local sales taxes unless appropriate tax exemption documentation is provided to the Seller prior to order processing and fulfillment. Applicable taxes will be charged on invoices unless a current and valid exemption certificate is on file.

Section 8 – Shipping Discrepancies and Damages

The Customer must promptly, but in no event later than ten (10) business days after delivery, report any shipping discrepancies, shortages and overages. Visible loss or damage must be noted on the carrier’s delivery receipt at the time of delivery and reported to Customer Service within five (5) business days. Claims for goods damaged in transit are governed by Section 4 ( c ).

If Customer does not timely notify Seller of damage, discrepancy, shortage or overage, then Customer will be deemed to have accepted the goods delivered, and Seller may in its discretion deny any claim for return, credit or other adjustment.

Section 9 – Force Majeure

Seller shall not be responsible for delays or failures in performance caused by circumstances beyond its reasonable control, including acts of God, natural disasters, government actions, epidemics or pandemics, labor disruptions, carrier delays, supply chain interruptions, or other unforeseen events. In the event of any such delay or failure of performance, Seller shall have such additional time within which to perform its obligations hereunder as may be reasonably necessary under the circumstances.

Section 10 – Acceptance

The Terms and Conditions in effect on the date a PO is submitted shall govern that order. Seller reserves the right to amend these Terms and Conditions at any time, with the current version available on Seller’s website; any such amendment applies prospectively to POs submitted after the amendment’s effective date.

Section 11 – Limited Warranty and Disclaimer

Seller warrants that, at the time of delivery, the products will conform to Seller’s published specifications and will be free from defects in material and workmanship under normal use and storage until the labeled expiration date. Customer’s sole and exclusive remedy, and Seller’s entire liability, for breach of this warranty shall be, at Seller’s option, replacement of the nonconforming product or a credit or refund of the purchase price.

EXCEPT FOR THE EXPRESS LIMITED WARRANTY ABOVE, SELLER MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND SELLER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

Section 12 – Limitation of Liability

IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR FOR LOST PROFITS, BUSINESS, GOODWILL OR REVENUE, ARISING OUT OF OR RELATING TO THE PRODUCTS OR THESE TERMS, EVEN IF CUSTOMER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO ANY ORDER SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCTS GIVING RISE TO THE CLAIM.

Section 13 – Regulatory and Product Use

Products are sold for use by or on the order of a licensed healthcare professional in accordance with the product’s labeling and Instructions for Use. Customer shall ( a ) use, handle, and store products in accordance with the labeling and applicable law, and not engage in any “off-label” or other uses inconsistent with its labeling; ( b ) not relabel, repackage, alter, or resell products except as authorized in writing; ( c ) comply with all applicable FDA and other regulatory requirements; and ( d ) maintain records sufficient for lot traceability.

Section 14 – Recall and Field Action Cooperation

In the event of a recall, correction, removal, market withdrawal, advisory notice, or other field corrective action, Customer shall cooperate fully with Seller, including by ceasing distribution of affected product, returning or quarantining affected product as directed, and providing distribution and lot records to enable traceability.

Section 15 – Returns

All sales are final, and products may not be returned.

Section 16 – General

( a ) Governing Law; Dispute Resolution. These Terms are governed by the laws of the State of Washington, without regard to its conflict-of-laws principles.

Any dispute, claim, or controversy arising out of or relating to these Terms or the sale of products, including the breach, termination, enforcement, interpretation, or validity thereof, shall be finally resolved by binding arbitration administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules then in effect. The arbitration shall be conducted before a single arbitrator, seated in Seattle, Washington, and conducted in English. Judgment on the award may be entered in any court of competent jurisdiction. The arbitrator shall have no authority to award punitive, exemplary, indirect, or consequential damages, or any damages excluded or in excess of the limitations set forth in Section 12. Each party shall bear its own costs and attorneys’ fees except as otherwise provided in these Terms or awarded by the arbitrator. The existence and content of any arbitration, including the award, shall be kept confidential.

Notwithstanding the foregoing, either party may seek temporary or preliminary injunctive or other equitable relief in any court of competent jurisdiction, to prevent irreparable harm, and Seller may bring an action in any court to collect past-due amounts owed by Customer.

( b ) Indemnification. Customer shall defend, indemnify, and hold harmless Seller and its affiliates, and their respective officers, directors, employees, and agents, from and against any third-party claims, damages, liabilities, losses, and expenses (including reasonable attorneys’ fees) arising out of or relating to (i) Customer’s breach of these Terms; (ii) Customer’s negligence or willful misconduct; (iii) any use, handling, storage, resale, relabeling, or distribution of the products by Customer or its employees, contractors, advisors, or customers that is not in accordance with the product labeling, Instructions for Use, or applicable law; or (iv) any modification of the products by anyone other than Seller. This obligation does not apply to the extent a claim arises from a product defect for which Seller is responsible under the limited warranty in Section 11, or from Seller’s gross negligence or willful misconduct.

( c ) Insurance. Each party shall maintain, at its own expense, commercially reasonable insurance coverage appropriate to its obligations, including commercial general liability coverage, and shall provide certificates of insurance upon reasonable request.

( d ) Compliance with Laws. Each party shall comply with all applicable laws in connection with these Terms, including the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)), the Physician Payments Sunshine Act / Open Payments requirements, and applicable anti-corruption and healthcare-fraud laws. Nothing in these Terms is intended to induce or reward the referral, purchase, or ordering of any item or service reimbursable under any federal or state healthcare program.

( e ) Assignment. Customer may not assign or transfer any order or these Terms, in whole or in part, by operation of law or otherwise, without Seller’s prior written consent. Any attempted assignment in violation of this section is void. Seller may assign these Terms to an affiliate or in connection with a merger, acquisition, or sale of substantially all of its assets. These Terms bind and benefit the parties and their permitted successors and assigns.

( f ) Severability. If any provision of these Terms is held invalid, illegal, or unenforceable, that provision shall be modified to the minimum extent necessary to make it enforceable, or if it cannot be so modified, severed, and the remaining provisions shall remain in full force and effect.

( g ) No Waiver. No failure or delay by Seller in exercising any right under these Terms operates as a waiver of that right, and no single or partial exercise of any right precludes any further exercise. Any waiver must be in writing and signed by Seller, and applies only to the specific instance for which it is given.

( h ) Notices. All notices under these Terms must be in writing and delivered to the receiving party’s designated address by hand, nationally recognized overnight courier, certified mail (return receipt requested), or email with confirmation of receipt. Notices to Seller shall be sent to Customer Service at [email protected], or such other address as Seller designates in writing. Notices are effective upon receipt.

( i ) Relationship of the Parties. The parties are independent contractors. Nothing in these Terms creates any partnership, joint venture, agency, or employment relationship between them.

( j ) Survival. Any provision that by its nature should survive completion, cancellation, or termination of an order shall survive, including the opening paragraphs hereof, Sections 6 (Payment), 8 (Discrepancies), 11 (Warranty and Disclaimer), 12 (Limitation of Liability), 13 (Regulatory and Product Use), 14 (Recall), 15 (Returns), and 16 (General).