Terms and Conditions

Article I. Our contract with you

1. 1. 1. These General Terms and Conditions of Sale (“Terms”), together with the purchase order, constitute the agreement between the purchaser (“You” or “Buyer”) and Signifier Medical Technologies LLC (“Seller,” “Us,” “We,” or “Our”) (the “Agreement”). This Agreement constitutes the parties’ entire agreement which supersedes any previous oral or written representations, including but not limited to provisions in Seller’s quotations, proposals, acknowledgments or other documents. The terms of this Agreement may not be varied or modified in any manner, unless in a subsequent writing signed by an authorized representative of each party. This Agreement governs the sale of our services, our eXciteOSA device (“Device”), including – unless otherwise stated – any software embedded in the Device, and our mouthpiece used in conjunction with the Device (the “Mouthpiece”) (hereinafter, our “Products”).
      2. These Terms apply to our Business customers only. If you wish to purchase or use our Products for your individual or household use, our Consumer Terms and Conditions of Sale will apply.
      3. We reserve the right to reject your order if you attempt to order as a business and we determine in our sole discretion that you are acting in your capacity as an individual consumer.
      4. As you use the Site and our services, and when you order other products from us, we may collect personal data from you. Our collection and use of your personal data is explained in our Privacy Policy, which is incorporated by reference as part of these Terms. We refer to these Terms and the Privacy Policy together as the “Agreement.”
      5. We reserve the right to amend these Terms from time to time. Any amendment to these Terms becomes effective when we publish the amended Terms on Our Site or on Our invoice. Sales of our Products are governed by the version of the Terms published on Our Site at the time of order. Buyer further acknowledges and agrees to the terms contained in Seller’s Minimum Advertised Price Policy (“MAP Policy”), attached hereto as Exhibit 1 and accessible at https://exciteosa.com/minimum-advertised-price-policy/.

      We will not supply Products to You if You or We terminate the Agreement in accordance with these Terms. In that case, we will issue You with a full refund in relation to any Products You have paid for but not yet received.

Article II. Orders

1. 1. Purchase Orders. Buyer shall order Products in accordance with the terms and conditions of this Agreement. Orders for the purchase of Products (“Purchase Orders”) must be submitted to Us by Buyer via Our Site at https://exciteosa.com/b2b.
   2. Purchase Orders are subject to acceptance by Us. We reserve the unconditional right to reject for any reason any Purchase Order, in whole or in part. Purchase Orders submitted by Buyer shall not be binding on Us until the earlier of written acceptance by Us or shipment, and acceptance by shipment shall only be binding as to the portion of the Purchase Order actually shipped by Us. Any automatic or computer-generated response to a Purchase Order by Our Site or otherwise shall not be deemed acceptance of a Purchase Order. Notwithstanding the foregoing, We reserve the right to refuse, cancel or delay any Purchase Order placed by Buyer and accepted by Us when Buyer is delinquent in payments or when Buyer has failed to perform any of its obligations under this Agreement.
   3. If We are unable to accept your order, We will inform you of this in writing and will not charge you for the Product.
   4. We may withdraw any Product at any time. If We are going to stop providing a Product that We have agreed to provide on an ongoing basis, We will endeavor, subject to legal or regulatory requirements, to provide You with 30 days written notice of cancellation of your order and will refund any sums You have paid in advance for Products which will not be provided.
   5. For safety and hygiene reasons, the useful life of each Mouthpiece is 90 calendar days from the date of activation. After this time, the Mouthpiece will be deactivated and the patient will need to purchase a replacement Mouthpiece to continue utilizing the Device.
   6. Invoices and Payment Terms. We shall send Buyer invoices via mail, email, or facsimile for each shipment of Products. Unless otherwise agreed in writing by Us, invoices are due and payable within thirty 30 days from the date of invoice or such other period agreed between Seller and Buyer in writing. We reserve the right to change or modify payment terms upon thirty (30) days’ notice to Buyer. Buyer shall have no right of offset or withholding under this Agreement. Any amounts not paid by Buyer when due to Us shall be subject to interest charges, from the date due until paid, at the rate of one and one half percent (1.5%) per month or the highest interest rate allowable by law (whichever is less), payable monthly. If any amounts due to Us from Buyer, for any reason, become past due, We may at Our option and without further notice withhold further shipment of Products until all invoices have been paid in full and We may, at Our election, terminate this Agreement upon sixty (60) days written notice to Buyer. Upon such termination, all sums owed by Buyer shall become immediately due and payable regardless of the payment terms set forth elsewhere in this Agreement.
   7. Credit Terms. We may, but shall not be obligated to, grant credit terms to Buyer. In the event We do grant Buyer credit terms, We reserve the right, in Our sole discretion and without prior notice, to deny, change or limit the amount or duration of credit to be allowed Buyer, either generally or with respect to a particular Purchase Order. Any changes to credit terms and/or any withholding or delay of shipment of Products by Us resulting from such changes or credit limitations will not be construed as a cancellation or breach of this Agreement by Us. Buyer agrees to provide Us with financial statements and such other evidence of corporate and financial standing as We may reasonably request from time to time during the term of this Agreement to evaluate Buyer’s credit risk.
   8. Prices; Price Changes. Buyer agrees that Signifier establishes the prices for Products as described in the MAP Policy.
   9. Taxes. Buyer shall be responsible for any national, state or local sales, use, value added or other tax, tariff, duty or assessment levied or imposed by the United States or any other governmental authority arising out of or related to any of the transactions contemplated by this Agreement including all sales tax, other than taxes based upon Our income. Unless Buyer has provided a certificate demonstrating Buyer’s exemption from sales or such other tax, Buyer must pay directly, or reimburse Us for the amount of such sales, use, value added or other tax, tariff, duty or assessment which Buyer is obligated to pay or collect or that We are at any time obligated to pay or collect.

Article III. Shipment of Products and Delivery

1. 1. Shipment Terms. All Products purchased by Buyer under this Agreement will be marked for shipment to Buyer at the address specified in the Purchase Order. We shall use commercially reasonable efforts to ship Products to Buyer on or before the requested receipt date designated in a Purchase Order. The Parties agree, however, that shipment of any Products ordered from Us under this Agreement may be delayed for a period of time sufficient to allow Us to manufacture and assemble or otherwise acquire the Products for Buyer, and the Parties further agree that We shall not be held liable to Buyer or any other party for any delay in shipment of any Purchase Order.
   2. Title and Risk of Loss. Title and risk of loss will pass on delivery to Buyer’s designated shipping address (“Delivery Point”). Buyer will be responsible for paying all freight, shipment, and insurance charges associated with shipment of the Products at, from and after the Delivery Point, even if the order is rejected upon delivery.
   3. Signifier’s Right to Delay, Cancel or Allocate. Should any Purchase Order for Products exceed Our available inventory, We shall in Our sole discretion determine how to allocate Our available inventory without liability to Buyer on account of the method of allocation determined or its implementation.
   4. Acceptance of Shipments. Buyer shall have three (3) working days from the date of arrival of the shipment of the Products to the Delivery Point to inspect the Products and notify Us of any discrepancies with respect to shipments of Purchase Orders including, but not limited to, any discrepancies in the quantity or quality of the Products. Notices of any discrepancies shall be in writing and provided to Us via email at [email protected]. Unless a notice of a discrepancy is reported to Us in the manner required herein, all shipments of Products will be deemed accepted by the Buyer.
   5. We are not responsible for delays due to force majeure or otherwise outside of Our reasonable control, as described in Article 19.1 below. If Our supply of the Products is delayed by an event outside Our control, We will contact You as soon as possible to let You know and We will take reasonable steps to minimize the impact of the delay.
   6. Buyer shall maintain full traceability for all goods received and returned (including product, quantity and serial number), and all order records and distribution records. Order and distribution records shall contain at a minimum: location, name, address of initial consignee, device or product code, number of devices and any control numbers used, including the serial number.
   7. In the event of a recall, Buyer will support Us in a timely manner. Buyer shall provide Us with the distribution details (e.g. customer information, delivery address, quantity, serial number, date of dispatch) of impacted Products. We will be responsible overall for ensuring that a recall is efficiently and correctly carried out.
   8. Storage and Handling. Buyer is responsible for ensuring that Our Products are stored in accordance with their defined storage requirements.

Article IV. Warranty

1. 1. • Warranty – We make no representations or warranties to Buyer or any other person with respect to the Products or any service provided to Buyer or any other person, except as set forth in Our Limited Warranty described below (the “Limited Warranty”). All sales to Buyer shall include and be subject to Our standard Limited Warranty, warranty disclaimers and limitations on liability in effect for the Products at the time of shipment of the Products to Buyer, unless expressly agreed otherwise in a separate document referencing this Agreement and signed by authorized representatives of the Parties. We reserve the right to change any of the terms of the Limited Warranty at any time, upon notice to Buyer.

       

      THE LIMITED WARRANTY REFERRED TO IN THIS SECTION IS THE ONLY WARRANTY, EXPRESS OR IMPLIED, THAT SIGNIFIER MAKES WITH RESPECT TO THE PRODUCTS. SIGNIFIER SPECIFICALLY DISCLAIMS ALL OTHER IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

   2. Limited Warranty – We provide a manufacturer’s limited warranty to Buyer and patients who subsequently purchase Products from Buyer confirming that the Product will be free from defects in its material, components and workmanship for a period of (i) for each Mouthpiece, ninety (90) days from the date the mouthpiece is first used by such Product’s first end user and (ii) for each Device, one (1) year from the date of receipt of the Device by Buyer.  The Limited Warranty does not cover normal “wear and tear” that would occur with normal usage, or damage resulting from any misuse or abuse of the Product, such as dropping or immersing the Device in water or other liquid or tampering with the Device. To make a claim on the Limited Warranty, contact us via email at [email protected]. Buyer must return the defective Product(s) to Us, at your own expense and in its original packaging, to 109 Highland Avenue Suite 303, Needham, MA 02494, USA, to be received by Us within the fourteen (14) days starting the day after You contact Us saying that You want to claim under the Limited Warranty. Provided your application for a refund complies with the conditions above, We will repair or replace the Products not meeting the Limited Warranty or, in Our discretion, refund the original purchase price, not including the delivery charge.

Article V. Limitation of Liability

1. 1. We are not liable for business losses under these Terms.We will have no liability to You for any loss of profit, loss of business, business interruption, loss of business opportunity, or for any incidental, special or consequential damages, all of which are hereby disclaimed and excluded.

Article VI. Buyer’s Obligations to End-Users

1. 1. Buyer is responsible for providing the end-user of the Product with any and all written materials, including user instructions that accompany the Products at the time the Products are sold to Buyer.
   2. Buyer is responsible for providing the end-user with the correct warranty information as described in Article IV. Buyer agrees not to make any other warranty on Signifier’s behalf other than what is contained in Article IV.
   3. At or before the time Buyer sells the Products to any end-user, Buyer agrees to provide reasonable training and education, including but not limited to demonstration of the Product, to the end-user so that the end-user is informed about the correct usage of the Product.
   4. For safety and hygiene reasons, the useful life of each Mouthpiece is 90 calendar days. Buyer agrees to ensure that, at the time of purchase of the Device, each patient is aware that, after 90 calendar days following the date of first use, their Mouthpiece will be deactivated and they will need to purchase a replacement Mouthpiece to continue utilizing the Device.

Article VII. Intellectual Property

1. 1. Subject to the terms and conditions of this Agreement, during the term of this Agreement Signifier hereby grants to Buyer a revocable, non-transferable, non-exclusive, limited license to use Signifier’s logos, trademarks, and trade names (collectively the “Signifier Marks”), solely in connection with the marketing, advertisement and sale of the Products. Such license shall immediately terminate upon the expiration or termination of this Agreement. Buyer shall strictly comply with all standards of use for the Signifier Marks and must at all times display appropriate trademark and copyright notices as instructed by Signifier. All media advertising, printed materials, and electronic documents in which a Signifier Mark is used must be submitted to Signifier for review in advance and must not be distributed or used in any manner without the prior written approval of Signifier. Buyer acknowledges and agrees that the Signifier Marks and other intellectual property provided to Buyer by Signifier, if any, are the sole and exclusive property of Signifier. Buyer shall not acquire any right, title or interest under this Agreement in any patent, copyright, Signifier Mark or other intellectual property right of any kind of Signifier. No implied license, patent, copyright or other intellectual property right of Signifier is granted under this Agreement or otherwise. During the term of this Agreement and thereafter, Buyer shall not do anything that will in any manner infringe, impeach, dilute or lessen the value of the Signifier Marks, patents, copyrights or other intellectual property of Signifier or the goodwill associated therewith or that will tend to prejudice the reputation of the Signifier or the sale of any Signifier products.
   2. Subject to the terms and conditions of this Agreement, during the term of this Agreement Signifier hereby grants to Buyer’s end-user a revocable, non-transferable, non-exclusive, limited license to use Signifier’s software embedded in the Device.
   3. The Buyer agrees not to (and agrees not to assist or facilitate any third party to) copy, reproduce, transmit, publish, display, distribute, reverse engineer, commercially exploit or create derivative works of such material and content.
   4. You acknowledge that, on purchasing our Products, you do not obtain any rights to use them except to the extent necessary to use the Products for their intended purpose.

Article VIII. Data Ownership and Privacy

1. 1. Signifier collects certain personal information such as Buyer’s name, phone number, e-mail address, shipping and billing address and other information so we can fulfil Your order. Signifier also collects information about Your Site usage, device information, location information and web navigational data to enable us to enhance Your experience on our digital platforms.
   2. Signifier also collects various personal information of its end-users via the mobile application related to use of the Products. For more information about Signifier’s privacy practices, please read our https://exciteosa.com/privacy-policy/.

Article IX. Confidential Information

1. 1. Confidential Information. Buyer acknowledges and agrees that during the term of this Agreement, it may receive confidential information from Signifier, including but not limited to, information relating to contractual agreements, pricing and price lists. (“Confidential Information”). Buyer shall maintain such information in confidence and disclose such Confidential Information only to its employees on a need-to-know basis and to fulfill the transactions between the Parties contemplated by this Agreement. Buyer shall remain responsible for breaches of this Agreement arising from the acts of its employees. Buyer agrees to use Signifier’s Confidential Information only to fulfill the transactions contemplated by this Agreement, and, if applicable in sales discussions with end users of the Product. (“Permitted Purposes”). Buyer agrees not to use Confidential Information for any purpose other than the Permitted Purposes, without Signifier’s prior written approval. In the event Buyer becomes aware of any improper use or disclosure of Confidential Information, it shall immediately notify Signifier and shall take all available measures to prevent any further misuse or improper disclosure of the Confidential Information.
   2. Equitable Relief. Buyer agrees and acknowledges that any breach or threatened breach of Article IX (“Confidential Information”) will result in irreparable harm to Signifier for which there may be no adequate remedy at law. In such event, Signifier shall be entitled to injunctive relief, without the necessity of posting a bond and without having to establish any actual damages.

Article X. Indemnification

1. 1. To the fullest extent permitted by law, Buyer agrees to indemnify, hold harmless and defend Signifier and its affiliated companies, their directors, officers, employees, agents and customers (“Indemnitees”) from and against any loss, liabilities, costs, expenses, suits, actions, claims and all other obligations and proceedings, including without limitation all judgments rendered against, and all fines and penalties imposed upon, Indemnitees and all attorney’s fees and any other cost of litigation (“Liabilities”) arising out of Buyer’s breach hereof, from Buyer’s unauthorized claims pertaining to Our Products, from Buyer’s violation of applicable law, or arising from Buyer’s negligence or misuse of the Product or in connection with providing incorrect or misleading information to end-users regarding the use or nature of the Products.

Article XI. Profile, Password, Security

1. 1. Buyer and end-user are responsible for (a) maintaining the confidentiality of its user ID, password or any other confidential information relating to its profile; and (b) all activities that occur under Your password or profile. If anyone else learns of Buyer’s profile access details, or Buyer suspects any unauthorized use of its password or profile, Buyer must contact Signifier as soon as possible. Signifier is not responsible for any loss or damage You suffer as a result of someone using contact details obtained from Buyer to access Your profile up to the time You alert us. Buyer agrees to cause the end-user to agree to the terms contained in this paragraph. Buyer shall instruct end-user of these responsibilities.
   2. Buyer agrees that any information it provides to Signifier regarding or pertaining to end-users will be accurate, complete and not misleading. Buyer agrees to promptly update Signifier with any changes to information previously provided to Signifier regarding its end-users. Signifier is not responsible for any loss or damage Buyer or any end-user may suffer as a result of providing incorrect information or failing to update information.

Article XII. No Medical Advice

1. 1. Signifier does not give medical advice or diagnoses. Buyer agrees not to rely on information provided by Signifier as medical advice, nor shall you characterize such information as medical advice to end users of the Device and/or Mouthpiece. Signifier does not guarantee any particular results from the use of its Products, regardless of whether the user follows all the recommendations contained in the instructions for the use of the Products.

Article XIII. Governing Law; Jurisdiction

1. 1. This Agreement is governed by the laws of the State of Delaware and, subject to the terms in Article XV, you can bring legal proceedings in respect of the Products or the Agreement in the courts of Delaware.

Article XIV. Dispute Resolution and Arbitration

1. 1. Informal Resolution. If any dispute or controversy arises between the Parties in relation to this Agreement, the Parties agree to a period of informal settlement negotiations.  The negotiation period will begin when the Plaintiff (“Plaintiff”) gives written notice (“Notice of Intent”) to the other Party (“Defendant”) of the dispute or controversy.  Such notice will set forth all facts known to or suspected by the Plaintiff that give rise to his claim for relief and all substantive laws on which Plaintiff anticipates basing his requested relief. Plaintiff may not rely on any fact, law, or basis for relief not listed in the Notice of Intent that is known to Plaintiff at the time the Notice of Intent is delivered to Defendant.  The Parties will engage in good faith negotiations for a period of thirty (30) days after the Notice of Intent is received by Defendant.  If the dispute is unable to be settled via informal settlement negotiations within the thirty (30) day period, then the parties shall participate in nonbinding mediation in Boston, Massachusetts using a mediator that is jointly agreed to among the Parties.  The mediation shall take place no later than forty-five (45) days after the Notice of Intent is received by Defendant.
   2. • If the Parties cannot resolve their disputes via the informal resolution process then the dispute shall be settled by binding arbitration by a single arbitrator experienced in medical device distribution agreements in Boston, Massachusetts in accordance with the laws of the State of Massachusetts and under the then current rules of the Commercial Arbitration Rules of the American Arbitration Association (or any successor thereto).  The determination of the arbitrator in any such proceeding shall be final and binding on both Parties and shall not be appealable by any of the parties.  Any court of competent jurisdiction may enter judgment upon an award rendered by the arbitrator(s).  The parties agree that they will not publish or cause to be published any disparaging statement regarding one another as a result of any dispute that may arise.  Notwithstanding the foregoing, this Section 13.2 shall not preclude either party from seeking equitable relief from any court of competent jurisdiction, including injunctive relief as contemplated herein.

      EACH OF THE PARTIES HERETO KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY COURSE OF CONDUCT RELATING TO THE FOREGOING.

Article XV. Compliance with Laws

1. 1. Compliance with Laws; Notification. Buyer represents, warrants and covenants that it shall comply with all applicable international, national, state, regional and local laws and regulations, including, without limitation, the United States Foreign Corrupt Practices Act of 1977 and the Export Control Act, as may be amended from time to time, in performing its duties hereunder and in any of its dealings with respect to the Products. Buyer shall promptly notify Signifier in the event Buyer knows or has reason to believe that any act or refrainment from acting required by or contemplated by this Agreement violates any applicable law, rule, or regulation (whether criminal or non-criminal) or if it becomes aware that any Products contain a defect which could create a substantial product hazard or an unreasonable risk of serious injury or death.
   2. Compliance with U.S. Export Laws. Buyer acknowledges and understands that the Products may be subject to restrictions upon export from the United States and upon resale after export. Buyer therefore represents and warrants that it shall comply fully with all relevant regulations of the U.S. Department of Commerce, with the U.S. Export Administration Act, and with any other import and/or export control laws or regulations of the United States or the Territory. Buyer, upon the request Signifier, shall execute and deliver to Signifier a letter of written assurance concerning technical data and U.S. Export Administration Regulations. If Signifier is aware that any of the Products are subject to such export laws, it shall so advise Buyer.

Article XVI. Severability

1. 1. Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.

Article XVII. No Waiver

1. 1. Our failure to enforce, at any time or for any period, any one or more of these Terms, shall not constitute a waiver of those Terms or of the right at any time to subsequently enforce or exercise Our rights under those Terms. For example, if You miss a payment and We do not request payment again but we continue to provide the Products, We can still require You to make the payment at a later date.

Article XVIII. Assignment and Transfer of the Agreement

1. 1. The Agreement between Buyer and Signifier may not be assigned or transferred without Our prior written consent. We may transfer Our rights and obligations under this Agreement to another person or entity. We will provide written notice to You upon such transfer.

Article XIX. Force Majeure

1. 1. We shall not be liable for any delay or failure to perform any of our obligations if the delay or failure results from events or circumstances outside our reasonable control, including but not limited to acts of God, strikes, pandemics, lock outs, delays in or unavailability of shipping or other transportation resources, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply. We shall be entitled to a reasonable extension of our obligations. If the delay persists for such time as we consider unreasonable, we may, without liability on our part, terminate the contract for the sale of Devices and/or Mouthpieces between you and us.

Article XX. Third Party Rights

1. 1. This Agreement is between You and Us. No other person shall have any rights to enforce any of its terms.