ICU Medical Sales, Inc.
General Terms and Conditions of Sale

The following General Terms and Conditions of Sale (together with any attached Schedules, these "General Terms") will apply to the sale by ICU Medical Sales, Inc. or its Affiliates (“ICU Medical”) to the Customer ("Customer") of any Products (as defined below) unless subject to a separate written agreement between ICU Medical and its Affiliates and Customer. All capitalized terms used, but not otherwise defined herein are defined in Schedule 1 attached hereto.

1. Products

1.1. Customer may not sell, distribute, convey, barter or otherwise transfer the Products purchased from ICU Medical except to individual persons in the course of providing health care services for use solely at Customer’s sites without the prior express written agreement of ICU Medical.
1.2. Disposables are for use only as explicitly authorized by ICU Medical and as stated in the Product Documentation.
1.3. Customer may not export or re-export a Product.
1.4. Customer shall use the Products only in accordance with the Product Documentation.
1.5. ICU Medical may make changes to the specifications of the Products and at any time when, according to ICU Medical’s assessment, such changes are required for such Products to conform to existing or future legal, regulatory, or technological requirements. Further, Customer accepts and agrees that Disposables may be subject to minor evolutions and modifications from time to time, at ICU Medical’s discretion, and ICU Medical shall inform Customer as and when these occur.
1.6. In addition to the foregoing, ICU Medical may, immediately upon written notice to Customer, remove or cease use of a Product as may be required by ICU Medical in determination with applicable regulatory bodies or as determined to be required by counsel of ICU Medical.
1.7. ICU Medical reserves the right to delay shipping or allocate the supply of a Product, as the case may be, in the event of shortage, Force Majeure Event, or any other event which disrupts or is reasonably expected to disrupt the ongoing supply of Products, as the case may be, to Customer. ICU Medical will not be liable for loss or damage of any kind resulting from any delay in delivery or failure to supply ordered Products or otherwise carry out its obligations under this agreement due to causes beyond its control, and no such event will relieve Customer of its obligations to make payments for other deliveries under this agreement.

2. Orders

2.1. Orders shall be deemed accepted when ICU Medical issues a written confirmation or, if no confirmation is issued, upon shipment of the Products by ICU Medical.

2.2. Unless specifically provided otherwise in writing by ICU Medical, all Orders, offers, and quotes and their acceptance shall be governed by these General Terms, which shall supersede and exclude any terms and conditions proposed, stipulated or referred to by Customer.

2.3. Orders with a combined value of less than $250.00, placed by the Customer under, and subject to, these General Terms, excluding freight, will incur a minimum handling charge of $50.00.

3. Invoicing and Payments

3.1. ICU Medical shall invoice Customer for Products upon shipment.
3.2. Payment terms are net thirty (30) days paid by EFT, if available, from the date of invoice (“Due Date”). If Customer fails to pay or procure payment of the full amount when due, and without in any manner excusing such violation, Customer agrees to pay ICU Medical interest at a rate of +1.5% per month (or the highest rate permitted by applicable laws, if lower) from the invoice Due Date up to and including the date full payment is received by ICU Medical. In addition, non-payment of an invoice when due may, at the sole option of ICU Medical, result in (i) the acceleration of all outstanding invoices and (ii) the suspension or cancellation of outstanding Orders.
3.3. To the extent permitted by Applicable Law, Customer will be responsible for any and all applicable taxes, fees, and assessments due in relation to its receipt of Products. Customer will pay or promptly reimburse ICU Medical for, any and all taxes, other governmental fees, assessments, duties and charges that are payable as a result of this transaction. Customer shall be responsible for maintaining current state tax exemption certificates where applicable and shall forward copies to ICU Medical upon request.
3.4. Customer also agrees to pay all collection costs, expenses and reasonable attorneys’ fees for collection of any amount due and unpaid. ICU Medical also reserves the right to require from Customer, at any time, satisfactory assurance of performance of Customer’s payment obligations to ICU Medical, and refusal or failure promptly to furnish such assurance will entitle ICU Medical to suspend or cancel further deliveries to Customer.
3.5. Customer shall not be entitled to retain or defer payment of any sums due to ICU Medical hereunder on account of any right to counterclaim or set-off which it may allege against ICU Medical.

4. Terms of Delivery - Risk, Title, and Security

4.1 Title to, and risk of loss of Products shall pass to Customer upon shipment of such Products to Customer FOB Origin, Freight Collect in accordance with the shipping and delivery terms. As from point of shipment, any risk of and responsibility for loss, damage and/or costs in connection with such Products shall rest upon Customer including storage, cartage and transportation of the Products as well as any and all insurance, fees, charges, and taxes. Customer shall organize the pickup of Products by a reputable carrier, and shall obtain, at its cost, insurance for loss or damage to Products during shipment.

4.2 Any delivery dates are estimates only.

5. Delivery Inspection

5.1. Customer or its carrier shall make reasonable efforts to inspect the Products immediately at delivery and shall note any (i) discrepancy between the corresponding Order and the delivered Products (quantities, specifications) and (ii) any visible damage to Products or packaging (together the “Contested Products”), on the bill of lading, and shall take sufficient photos to identify any visual damage and shall advise ICU Medical in writing within five (5) days of each delivery of any Contested Products, (including all applicable ICU Medical warranties).
5.2. Except for any Contested Products identified by Customer on the bill of lading or in writing within five (5) days of delivery, Customer’s receipt of the Products shall constitute an unqualified acceptance of the delivery of such Products and a waiver by Customer of all claims with respect to such delivery. Customer’s acceptance of delivery shall in no way affect or diminish ICU Medical’s Product warranties as set out herein.
5.3. Products purchased are not refundable under any condition except as otherwise set forth herein or in ICU Medical’s Returned Goods Policy available at Returned Goods Policy. Notwithstanding the foregoing, Customer is entitled to the applicable warranty for such Products as provided herein.

6. Maintenance and Training

6.1. Customer is responsible for ensuring all preventive maintenance and repairs of Products are completed in accordance with the corresponding Product technical service manuals.

6.2. Prior to the first clinical use of any Products, Customer agrees that Customer and all of Customer’s personnel utilizing the Products are required to read all Product Documentation and complete all training provided by ICU Medical for the Products. Customer understands and acknowledges that inherent risk exists in not all of Customer’s personnel reading the Product Documentation and completing the required training as provided by ICU Medical for the Products. Customer understands that it is responsible for ensuring completion of the training by all Customer’s personnel utilizing the Products.

1. 6.2.1. Online Product Documentation and training resources are available at and for any further training for additional Products, please contact Customer Care:

7. Customer Data

7.1. To the extent that Customer data is created under these General Terms or relationship, Customer retains all rights, title, and interest thereto. Customer hereby grants the following rights to ICU Medical in relation to Customer-generated data created or stored through the use of an Infusion Pump or Equipment, to access, use, process, and disclose such Customer-generated data as may be required for ICU Medical to comply with Applicable Laws to medical Infusion Pump and Equipment manufacturers, for complaint investigation, handling and reporting, and for maintaining, developing and improving ICU Medical’s products.

8. Cleaning and Decontamination

8.1. At all times, Customer shall use ICU Medical-approved cleaning solutions and techniques for Infusion Pumps and Equipment in accordance with Product Documentation, and clean and decontaminate all Infusion Pumps and Hardware prior to the same being shipped to or handled by ICU Medical personnel. Approved cleaning solutions and disinfecting agent guides are available at Approved Cleaning Solutions and/or Disinfecting Agents.

9. Intellectual Property

9.1. All rights, title and interest in and to the Products and any associated documentation and all derivative works thereof prepared by or for ICU Medical and its Affiliates and all related know-how and all rights therein (including, without limitation, all intellectual property rights), are and shall remain the exclusive property of ICU Medical and its Affiliates. All suggestions for corrections, changes, additions or modifications to the Products provided by Customer and any other feedback provided by Customer are the exclusive property of ICU Medical and Customer hereby assigns all rights in and to any such feedback to ICU Medical, without any right to compensation or attribution.

10. ICU Warranty

10.1. Product Warranty. ICU Medical warrants that the Products sold to Customer:

10.1.1. meet both ICU Medical’s specifications, and will be manufactured in accordance with all current Good Manufacturing Practices and other Applicable Laws in effect at the time of manufacture,

10.1.2. are free of defects in workmanship and material, and

10.1.3. comply with Applicable Laws and meet stated standards and regulations.

10.2. Warranty Periods. The ICU Medical Product warranties shall apply as follows:

10.2.1. For Infusion Pumps and Equipment (which does not include batteries), for a period of twelve (12) months from the date of shipment to Customer, except for CADD^™-Solis Ambulatory Infusion Pump shall have a warranty of twenty-four (24) months from the date of shipment to Customer

10.2.2. For Accessories, Solutions, Disposables, batteries for Infusion Pumps and Equipment, Vascular Access Products, and Critical Care Products, for a period of ninety (90) days from the date of delivery to Customer.

10.3. Warranty Obligations for Products. All warranty repairs, replacements or refunds shall be limited to Product issues which are, as reasonably determined by ICU Medical, due and traceable to defects covered by the corresponding Product’s warranty. Customer’s sole and exclusive remedy, and ICU Medical’s sole obligation, under the Product warranty shall be for ICU Medical to:

10.3.1. If the Product is an Infusion Pump or Equipment or an Accessory, repair or replace the Product under warranty, or

10.3.2. If the Product is a Solution, Disposable, Vascular Access Product, or Critical Care Product, replace the Product under warranty, or

10.3.3. If, in ICU Medical’s sole opinion, the Product cannot be repaired or replaced, in particular where such actions would not be commercially reasonable or feasible, refund or credit (at ICU Medical’s discretion) any sums paid by Customer to ICU Medical for the Product under warranty.

10.4. Voiding of Warranties. The warranties set out herein shall not apply and shall be void if, and to the extent that, the corresponding Products have been:

10.

10.1.

10.2.

10.3.

10.4.

10.4.1. damaged, misused, neglected or subjected to improper storage while in Customer’s possession;

10.4.2. used, handled, maintained, or implemented other than in accordance with their Product Documentation, such prohibited uses including but not limited to:

10.4.2.1. re-use of single-use and/or single patient-use Products;

10.4.2.2. use of single-use and/or single patient-use Products beyond the indicated maximum duration of use;

10.4.2.3. use of Disposables with any Infusion Pumps or Equipment or other devices other than those explicitly authorized by ICU Medical and as stated in the Product Documentation;

10.4.2.4. use of Infusion Pumps or Equipment with any disposables other than those explicitly authorized by ICU Medical and as stated in the Product Documentation;

10.4.2.5. cleaning, modification, fitting or repair of Products with non-ICU Medical approved (i) replacement parts, (ii) accessories or components, or (iii) cleaning agents;

10.4.2.6. altered by Customer, including the alteration, defacement or removal of serial numbers;

10.4.2.7. subject to implementation, repair or attempted repair by unauthorized personnel;

10.4.2.8. resold, leased or otherwise transferred possession to the benefit of a third party;

10.4.2.9. damaged due to unsuitable power sources or other environmental conditions;

10.4.2.10. used by Customer notwithstanding the fact that Customer knew or ought to

have known the Product was defective or damaged.

10.5. Exclusion of other Warranties. EXCEPT FOR THE WARRANTIES SET FORTH IN THESE TERMS, ICU MEDICAL DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE REMEDIES SPECIFIED HEREIN ARE THE SOLE AND EXCLUSIVE REMEDIES AND APPLY REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

11. Indemnification and Limitation of Liability

11.1. Each Party (“Indemnifying Party”) shall indemnify, defend and hold harmless the other party and its authorized representatives and agents (“Indemnified Party”) from and against any and all liabilities, losses, or damages, expenses, demands, claims, suits or judgments, including without limitation reasonable attorney’s fees and expenses, which are brought by a third party against the Indemnified Party to the extent they arise from the Indemnifying Party’s (a) breach of any provision of these General Terms; (b) negligence or willful misconduct; or (c) violation of any Applicable Laws; (d) with respect to Customer as the indemnifying Party, any death, bodily injury or property damage caused by Customer; or (e) with respect to ICU Medical as the indemnifying Party, ICU Medical’s Products causing death, bodily injury, or property damage, provided that such Products, were used in accordance with the respective Product Documentation.

11.2. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, A PARTY SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE TERMS, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ICU MEDICAL’S AGGREGATE LIABILITY HEREUNDER SHALL BE LIMITED TO THE TOTAL OF ALL SUMS PAID BY CUSTOMER TO ICU MEDICAL UNDER THESE TERMS AT THE TIME OF THE EVENT OR EVENTS GIVING RISE TO THE CLAIM(S).

12. Confidentiality

12.1. Each party agrees: (a) to keep confidential all Confidential Information disclosed to it by the other party; (b) not to use the Confidential Information of the other party except to the extent necessary for the purposes of these General Terms; and (c) to protect the confidentiality of the other party’s Confidential Information in the same manner as it protects the confidentiality of its own Confidential Information. For purposes of these General Terms, Confidential Information includes any non-public technical or business information of either party, including any information relating to a party's techniques, algorithms, know-how, research, engineering, designs, financial information including pricing, customer lists, business forecasts, marketing plans, trade secrets and information or any materials marked confidential. Confidential Information shall also include any discussions or documentation relating to potential future products, software, features, and/or services. The obligations contained in this section shall survive, and continue in effect after the termination of these General Terms.

13. Disclosure and Reporting of Discounts

13.1. The purchase price under these General Terms (including the value of any discounts, rebates, or other price concessions) are intended to reflect discounts or other reductions in price within the meaning of the discount exception to the federal anti-kickback statute 42 U.S.C. Section 1320a-7b(b)(3)(A). In addition, any value provided to the Customer under the warranties in these General Terms shall be provided in accordance with the provisions of the federal anti-kickback statute warranty safe harbor regulation (42 CFR Section 1001.952(g)). Customer shall properly report, including any amendments or adjustments required to such reporting, and appropriately reflect such discounted prices on cost reports or claims submitted to any state or federal program that provides reimbursement to Customer for the items to which the discount applies. Further, Customer shall retain invoices and other price documentation and make them available to federal or state officials upon request.

14. Firmware License Only

14.1. In connection with the purchase of Infusion Pumps and subject to the terms and conditions contained in these General Terms, ICU Medical hereby grants Customer, a limited, non-transferrable, non-exclusive license to use the Firmware (in object code form) solely on the particular Infusion Pump unit onto which it is embedded solely for internal purposes at Customer sites and in accordance with the Product Documentation. Such Firmware license shall become fully paid-up upon Customer’s final payment for the purchase of the Infusion Pump on which the Firmware is embedded.
14.2. Customer agrees not to make or have made copies or derivative works of the Firmware, or to reverse engineer, decompile or dissemble the Firmware.
14.3. ICU Medical may, from time to time and at its sole discretion, develop bug fixes or patches to the Firmware, or release new versions of the Firmware (collectively, the “Firmware Updates”). During the serviceable life of the Infusion Pump (as defined in the Product Documentation and for the avoidance of doubt, no more than seven (7) years) may, from time to time and at its sole discretion, make available to Customer Firmware Updates, either via Customer self-installation or onsite installation performed by ICU Medical. To the extent such Customer self-installs the Firmware Updates, such Firmware Updates shall be provided free of additional charge. Any installation of Firmware Updates performed by ICU Medical shall be subject to an additional fee. In no event after the serviceable life of the Infusion Pump has expired, ICU Medical shall no longer provide Customer Firmware Updates.

15. Miscellaneous

15.1. Force Majeure. If either party is prevented, hindered, or delayed in performing any of its obligations under these General Terms (other than an obligation to make payment) by a Force Majeure Event then the affected party’s obligations under these General Terms shall be suspended for so long as the Force Majeure Event continues and to the extent that the party is so prevented or delayed; as soon as reasonably possible after the commencement of the Force Majeure Event.

15.2. Compliance with Laws and Regulations. Each party represents and warrants that it shall comply with all Applicable Laws in the performance of its obligations hereunder.

15.3. Assignment. Neither party may assign these General Terms or its rights hereunder, in whole or in part, without prior written consent of the other party, which shall not be unreasonably withheld or delayed, provided that each party herewith consents to any assignment by the other party of its rights and obligations: (i) to an Affiliate; or (ii) incident to the transfer of a party’s business assets (in whole or in part), or (iii) in the event of a merger, consolidation, acquisition, or internal restructuring of a party. These General Terms shall inure to the benefit of and be binding on the successors and permitted assigns of a party.

15.4. Modification. Subject to limitations of applicable law, ICU Medical may, at any time, change or remove any of the terms and conditions of, or add new terms or conditions to these General Terms. If we make such a change, you agree that ICU Medical may provide you with notice of the change by any reasonable method.

15.5. Third Party Beneficiaries. Nothing in these General Terms is intended to benefit any person other than the Customer and ICU Medical.

15.6. Waiver. Any waiver of any of the provisions of these General Terms or of a party’s rights or remedies hereunder must be in writing to be effective. Failure, neglect or delay by a party to enforce the provisions of these General Terms will not be construed or deemed to be a continuing or further waiver of such party’s rights under these General Terms and will not in any way affect the validity of the whole or any part of these General Terms or prejudice the right to take subsequent action.

15.7. Severability. If any provision of these General Terms shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these General Terms and shall not affect the validity and enforceability of any remaining provisions.

15.8. Governing Law. These General Terms shall be governed by and construed in accordance with the laws of the State of Illinois for purchases made in the U.S. or the Province of Ontario, Canada for purchases made in Canada (unless Customer is located in the Province of Quebec, then the laws of the Province of Quebec, Canada shall govern), without reference to its conflict of laws principles. The rights and obligations of the parties under these General Terms shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods.

15.9. Authority. Customer represents and warrants that (a) if it is a legal entity, it is a corporate entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization; (b) it has all requisite power and authority to execute, deliver and perform these General Terms; (c) these General Terms are a legal and valid obligation binding upon Customer and enforceable in accordance with its terms; and (d) the execution, delivery and performance of these General Terms by Customer has been duly authorized by all necessary corporate action and do not conflict with any agreement to which it is a party or by which it is bound, nor violate any applicable law or any order or award of any court or governmental body applicable to Customer.

15.10. Sole contract. These General Terms constitute the entire understanding and agreement between ICU Medical and Customer concerning the subject matter hereof, and supersedes all prior negotiations, agreements and understandings between ICU Medical and Customer, whether oral or in writing, concerning the subject matter hereof. No additional terms contained in any Customer purchase order, acknowledgment form, or other document of Customer shall be binding on ICU Medical, except that Customer’s purchase order shall be binding solely with respect to quantities and pricing of incremental purchases of Products therein. For the avoidance of doubt any Customer purchase order related to such incremental purchases of Products therein will be governed by these General Terms.

15.11. Notices. Any notices, or other information given, made or delivered to either party hereunder shall be sufficient if personally delivered, mailed, or sent by electronic transmission to the address of such party set forth on the Purchase Order.

15.12. Publicity. A party shall not make any press or other public announcement in relation to its contractual relationship with the other party without the prior written consent of such other party, whose consent shall not be unreasonably withheld or delayed; provided that ICU Medical shall be permitted to make a reasonable public announcement upon advance written notice to Customer and provided further that ICU Medical deems while acting in good faith that such public announcement is necessary for ICU Medical to comply with its securities and exchange laws and/or other similar regulations. Following the date of these General Terms and regardless of any dispute that may arise in the future, the parties agree that they will not disparage, criticize, or make statements which are negative, detrimental, or injurious to the other to any individual, entity or body.

Schedule 1

Definitions. The capitalized terms used herein are defined as follows:
1. “Accessories” means accessories purchased for use with the Infusion Pumps or Equipment, applicable only if purchased under these General Terms. The term “Accessories” does not include batteries for Infusion Pumps or Equipment.
2. “Affiliate” means, with respect to a party, any current and future business entity that directly controls, is controlled by, or is under common control of such party. As utilized herein, "control" shall mean possession, direct or indirect, of the powers to direct or cause the direction of the management and policies of an entity through ownership.
3. “Applicable Laws” means all applicable federal, state and local laws, rules and regulations in the performance of a party’s obligations hereunder.
4. “Critical Care Products” means hemodynamic monitoring systems, cardiac output monitoring sensors and catheters, triox venous oximetry catheters, thermodilution and monitoring catheters, and blood pressure monitoring products.
5. “Customer” means the party purchasing the Products hereunder and is defined on the Purchase Order.
6. “Disposables” means individual dedicated single-sterile and single-use consumables which may be used with the Infusion Pumps or hardware, or individual non-dedicated single-sterile and single-use consumables which may be used with other devices or on a standalone basis, applicable only if such Disposables are purchased under these General Terms.
7. “Equipment” means hardware sold by ICU Medical, including applicable pre-installed Firmware, applicable only if purchased under these General Terms, but does not include Infusion Pumps.
8. “Firmware” means device-specific software embedded on the Infusion Pumps and Equipment and any updates thereto provided under these General Terms. For clarity, Firmware does not include software.
9. “Force Majeure Event” means any event or cause beyond a party’s reasonable control, such as but not limited to, strikes, fires, explosion, flood, injunction, disruption of transportation infrastructure, public health emergency, epidemics, pandemics, accidents, market-wide inability to obtain supplies at reasonable prices, market-wide shortages including shortage of raw materials, war, act of governmental authority, terrorism, and acts of God.
10. “Infusion Pump” means an external infusion pump used to deliver fluids and/or medications, including applicable pre-installed Firmware, applicable only if purchased under these General Terms.
11. “Orders” means any order with a value of $250.00 minimum, placed by the Customer under, and subject to, these General Terms.
12. “Products” means Accessories, Disposables, Equipment, Infusion Pumps, Vascular Access Products, Critical Care Products, and/or Solutions, but does not include software.
13. “Product Documentation” means the product instructions for use, package inserts, product labelling, product packaging, manuals, specifications and training materials, which may include eLearning (including pre-recorded videos) if available, for any Product.
14. “Solutions” means intravenous, irrigation, and nutritional solutions, applicable only if purchased under these General Terms.
15. “Vascular Access Products” means single patient-use products utilized for venous access, including without limitation, peripheral IV catheters, midline catheters, implantable ports, blood collection and sharps safety products.

ICU Medical Sales, Inc.General Terms and Conditions of Sale