General Terms and Conditions of Sale
ResMed Corp. and its affiliates do business with customers (Customers) under these General Terms and Conditions of Sale (Terms). These Terms supersede those contained in any Customer purchase order, request for quotation, acceptance or other purchasing documents concerning any ResMed product(s) (Product(s)) which are inconsistent with, different from, or in addition to these Terms. These Terms are available to download and are subject to change without notice.
- Approval of Orders
- Credit Policy
- Terms of Sale
- Finance Charge/Costs of Collection
- Payment and Prices
- Changes and Cancellations
- Methods and Point of Delivery
- Shipping; Title of Risk of Loss
- Non-Exclusive Sales; Unauthorized Distribution
- Relationship of the Parties
- Returns and Replacements
- Changes in Products and Policies
- Limited Warranty
- Disclaimer of Warranties
- Limitation of Liability
- Force Majeure
- Default, Termination and Other Remedies
- Choice of Law; Jurisdiction; Venue
- Regulatory Compliance
- International Regulatory Compliance
- APPROVAL OF ORDERS: All orders must be in writing or sent via EDI. All Customer purchase orders for Products are subject to acceptance by ResMed, including, if appropriate, approval by ResMed’s Credit Department. Any statement in a purchase order document that is not expressly approved or acknowledged in writing by ResMed will not be considered a part of the agreement between the parties.
Please send orders to:
ResMed Customer Service Department
9001 Spectrum Center Boulevard, San Diego, CA 92123
Phone: (800) 424-0737 Fax: (858) 836-5501
All sales orders will be subject to Product availability. ResMed will impose a separate $25.00 handling fee for orders under $200.00, exclusive of taxes and shipping charges.
- CREDIT POLICY: ResMed may, at its option, extend credit to qualified Customers upon completion of ResMed’s credit application, submission of requested financial information, and approval by ResMed’s credit department. Credit decisions are made at ResMed’s sole discretion. ResMed may, in its sole discretion, reject, delay or cancel any order or Product shipment if Customer fails to meet ResMed’s credit requirements, including but not limited to failure to pay any sum as it becomes due. Only Customers in good standing shall be eligible to participate in special sales, discounts or other programs offered by ResMed.
- TERMS OF SALE: Invoices will be issued when Products ship. Invoices may be batched and mailed following shipment. Customers to whom ResMed extends credit must pay for Products in full within established payment terms as noted on the invoice. Customers may not make deductions or offsets of any kind from payments due ResMed unless such Customer has received, and strictly complied with, a written credit memorandum or other documentation from ResMed authorizing the deduction or offset. If Customer’s check is returned because of insufficient funds or for any other reason, additional handling charges and fees will be assessed. ResMed will not be bound by any credit terms that have not been confirmed in writing by ResMed’s Credit Department.
- FINANCE CHARGE/COSTS OF COLLECTION: If Customer fails to pay ResMed for Products when due, then, in addition to any other remedies available to ResMed allowed by law for that default, Customer will pay ResMed an additional monthly financing charge for each month that payment remains due, equal to the lesser of (a) one and one-half percent (1.5%) or (b) the maximum monthly interest rate allowed by law, for any portion of Customer’s account not paid within terms stated on invoice. Customer also agrees to pay ResMed’s reasonable expenses of collection, including but not limited to attorneys’ fees, experts’ fees, and court costs. The obligation is considered past due if not paid within stated payment terms.
- TAXES: Upon submission of a valid and correct tax exemption certificate, prices for Products will exclude all taxes, including but not limited to sales, excise or use taxes. Customer shall pay all sales use, ad valorem, excise and/or any other taxes imposed on either party by virtue of Customer’s order, except for taxes based on ResMed’s net income. ResMed will invoice Customer for any of the taxes that ResMed is legally obligated to collect from Customer.
- PAYMENT AND PRICES: Payments must be made to the payment address set forth on the ResMed invoice. Current prices are available on the ResMed published price list. ResMed shall have the right to change prices on any Product at any time without prior notice, except for orders which have been accepted by ResMed prior to such price modifications. ResMed may change prices for Products included in a previously accepted order by giving Customer prior notice. If Customer does not wish to purchase Products previously ordered and accepted by ResMed because of any price increase, then Customer may, as its sole remedy, cancel its purchase, to the extent not previously fulfilled, by giving ResMed written notice within ten (10) days of its receipt of a price change notice from ResMed.
- CHANGES AND CANCELLATIONS: Requests for order changes and cancellations must be in writing and received by ResMed five (5) business days prior to requested ship date. Orders on hold may be canceled at ResMed’s discretion.
DELIVERY:Requests for specific shipping dates will be reasonably honored subject to existing circumstances. Regardless of the date of actual shipment, Customer will not be excused from its obligation to pay for Products when shipped or from any of its other obligations hereunder. RESMED SHALL NOT BE LIABLE FOR ANY DAMAGES, WHETHER INCIDENTAL, CONSEQUENTIAL OR OTHERWISE, FOR FAILURE TO FILL ORDERS, DELAYS IN DELIVERY OR ANY ERROR IN FULFILLING ORDERS.
- METHODS AND POINT OF DELIVERY: Unless otherwise agreed by the parties, ResMed will choose the carrier for shipping Products. ResMed's responsibility for delivery will cease when carrier signs for shipment to destination as specified. ResMed may make partial shipments on Customer orders, which shipments may be separately invoiced and shall be paid for when due, without regard to subsequent shipments. Delay on shipment or delivery of any particular installment shall not relieve Customer of its obligation to accept the remaining shipments. Regardless of the party paying freight charges, all risk of loss or damage in transit will be borne by Customer. All claims for damage to, or loss of, Products must be made by Customer directly to the carrier or the insurance company (as the case may be). ResMed will accept requests for a proof of delivery (P.O.D.) up to sixty (60) days after the invoice date. ResMed reserves the right to charge Customer a service charge or handling fee for each P.O.D. requested by Customer.
SHIPPING; TITLE OF RISK OF LOSS:All Products are shipped F.O.B. ResMed's warehouse. Freight charges will be prepaid by ResMed and added to Customer’s invoice(s). Title and risk of loss for Products passes from ResMed to Customer on shipment from ResMed's warehouse (i.e., F.O.B. Origin.)
- NON-EXCLUSIVE SALES; UNAUTHORIZED DISTRIBUTION: All sales by ResMed are non-exclusive. Unless authorized by ResMed in writing in advance: a) Customer agrees not to resell, ship, or distribute Products to anyone other than patients; b) not to purchase or exchange ResMed Products from any source other than ResMed; c) not to resell or distribute ResMed Products outside the country to which ResMed ships the Customer’s order; or d) not to resell or distribute ResMed Products online. The sale of ResMed Products in violation of this section voids ResMed's written warranties where permitted by law.
RELATIONSHIP OF THE PARTIES:Customer and ResMed are independent contractors, and are not authorized to act as an agent of the other. Customer will indemnify, defend and hold harmless ResMed against any and all liability arising out of, and any injury, loss, claims or damages arising from the negligent operations, acts or omissions of Customer or its employees, agents and contractors. Customer will indemnify and hold harmless ResMed against all costs and expenses, including reasonable legal expenses, incurred by, or on behalf of, ResMed in connection with the defense of such claims.
- EXPORT: Customer will not export any ResMed Products in violation of applicable US laws and regulations. Customer will be responsible for obtaining any required export licenses for Products. ResMed reserves the right to refuse to sell to Customers that sell ResMed Products for export.
- RETURNS AND REPLACEMENTS: Customer must report any discrepancies in Products received within three (3) business days of receipt or will be deemed to have accepted the Products as shipped. Customer returns are subject to these guidelines:
- Request a returned material authorization (RMA) number from ResMed's Customer Service Department before returning the Product. When requesting a RMA, be prepared to provide the Product serial number. When returning masks and other non-serialized Products, please be prepared to provide the part number(s) and at least one of the following: the original purchase order number; the ResMed confirmation number; or the invoice number.
- Mark the RMA number clearly on the outside of all returned boxes and ship to ResMed freight prepaid. If Customer fails to do so, ResMed reserves the right to refuse the shipment and direct that the shipment be returned to Customer at Customer's expense.
- The issuance of any credit for returned Product is subject to inspection and approval by ResMed. Customer will be charged with a 20% restocking fee unless the return results from a ResMed shipping error that is communicated to ResMed within ten (10) business days of receipt of the Product by Customer.
- CHANGES IN PRODUCTS AND POLICIES: ResMed may add, change or cease making available any Product without notice to Customer, and Customer shall have no claim against ResMed for failure to furnish Products of the model, design or type previously sold or for failure to install modifications in Products previously sold. In addition, ResMed may at any time change its financial requirements or its warranty or service policies without incurring any liability to Customer.
- LIMITED WARRANTY: The sole and exclusive warranty regarding the ResMed Products is the limited warranty found at ResMed.com. The limited warranty is extended exclusively to authorized Customers and their patients, and is not transferable or extended to unauthorized purchasers or their customers. Unauthorized purchasers may be required by law to inform their customers that ResMed's limited warranty is immediately and unequivocally void. ResMed reserves the right to modify its limited warranty at any time, in its sole discretion. Any claim a Customer submits under ResMed's written product warranties must be on behalf of the initial patient-user of the ResMed Product and comply with section 14 above.
- DISCLAIMER OF WARRANTIES: EXCEPT FOR THE LIMITED WARRANTY REFERENCED IN SECTION 16 ABOVE, RESMED HEREBY DISCLAIMS AND EXCLUDES ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESSED OR IMPLIED, OF ANY TYPE WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, OR ANY REPRESENTATION OR WARRANTY AS TO THE DESIGN, CONDITION, QUALITY, CAPACITY, MATERIAL, EQUIPMENT OR WORKMANSHIP IN OR OF ANY RESMED PRODUCT. RESMED FURTHER DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT RESMED PRODUCTS ARE COMPATIBLE WITH ANY COMBINATION OF NON-RESMED PRODUCTS USED IN CONNECTION WITH THE RESMED PRODUCTS.
LIMITATION OF LIABILITY: THE TOTAL LIABILITY OF RESMED, IF ANY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIM OF ANY KIND WHATSOEVER, REGARDLESS OF LEGAL THEORY, WILL NOT BE GREATER THAN THE ACTUAL PURCHASE PRICE OF THE RESMED PRODUCTS WITH RESPECT TO WHICH SUCH CLAIM IS MADE. ALSO, UNDER NO CIRCUMSTANCES WILL RESMED BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES IN CONNECTION WITH THE RESMED PRODUCTS, ANY ORDER FOR RESMED PRODUCTS, THE FURNISHING OF EQUIPMENT, GOODS, PARTS OR SERVICES HEREUNDER, OR THE PERFORMANCE, USE OF, OR INABILITY TO USE ANY EQUIPMENT OR ANY OTHER GOODS, PARTS OR SERVICES, OR ANY OTHER MATTER RELATING TO THE FOREGOING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL OR EQUITABLE THEORY, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR COMPENSATION, REIMBURSEMENT OR LOSS OF PRESENT OR PROSPECTIVE PROFITS, EXPENDITURES, INVESTMENTS, COMMITMENTS, OR CLAIMS OF ANY THIRD PARTY, WHETHER MADE IN THE ESTABLISHMENT, DEVELOPMENT OR MAINTENANCE OF BUSINESS REPUTATION OR GOODWILL, COST OF CAPITAL OR ANY OTHER REASON WHATSOEVER. This limitation of liability will in no way affect Customer’s right to seek appropriate relief at law arising from or incident to any death, personal injury or property damage that is in any way connected to ResMed’s gross negligence, willful misconduct or strict liability in tort with respect to the ResMed Products and their use.
- TRADEMARKS: Customer will have no right to or interest in any trademarks or trade names owned, used or claimed now or in the future by ResMed, its affiliates or licensors.
- FORCE MAJEURE: ResMed and Customer will be excused from any default in their obligations hereunder, other than the payment of money due, resulting from any act or event beyond their reasonable control or responsibility, including, but not limited to, acts of God, accident, fire, flood, storm, riot, war, sabotage, explosion, strike, lockout, labor disturbance, national defense requirement, governmental action, law ordinance, rule or regulation, whether valid or invalid, inability to obtain or curtailment of electricity or other types of energy, raw material, labor, component products or transportation, failure of normal sources of supply, or any similar or different contingency that would make performance or timely performance commercially impracticable. The party relying on any of these acts or events of force majeure must give the other notice thereof promptly after it becomes known to that party. If any of these acts or events of force majeure exceed sixty (60) continuous or cumulative days within a quarter, then either party may, as its sole remedy, cancel outstanding orders to the extent not previously fulfilled by giving the other written notice, and neither party will be liable to the other for damages resulting from such cancellation.
- COMMUNICATIONS: Customer grants permission to ResMed to communicate with Customer by mail, email, telephone, or facsimile, for the purpose of providing Customer with information about ResMed’s Products, pricing and promotions. Customer also grants ResMed permission to monitor and record calls between ResMed and Customer for quality assurance and training. All notices or communications required or permitted under these Terms will be given personally or in writing sent by U.S. mail with postage prepaid and return receipt requested, or by overnight delivery services.
- WAIVER: Either ResMed's or Customer's waiver of the other’s default in its obligations under any term or condition hereunder will not in any way limit or affect that party’s right to enforce and compel strict compliance with that term or condition at any other time or with any other term or condition.
- DEFAULT, TERMINATION AND OTHER REMEDIES: In addition to any other remedies otherwise available to ResMed, all of which are expressly reserved, ResMed may immediately terminate these Terms and accelerate any payment owed by Customer following an Event of Default (as defined below). Upon any termination of these Terms, all rights and obligations of Customer and ResMed will cease except those rights and obligations that have accrued or expressly survive such termination or expiration, including but not limited to payment of any amounts due. The following will constitute an Event of Default; a) Customer’s breach, violation, or failure to perform any of its obligations under this or any other agreement with ResMed; b) Customer’s failure to comply with any applicable policy set forth by ResMed; c) Customer’s insolvency, dissolution or merger with or acquisition by another entity; d) Customer making an assignment for the benefit of creditors; or ceasing to do business as a going concern; e) the instituting by or against Customer of any action of bankruptcy, reorganization, receivership, conservatorship or insolvency; or f) failing to pay any sum owed to ResMed upon acquisition of any other ResMed customer. Furthermore, Customer agrees to pay all costs and reasonable collection or attorney’s fees incurred in any collection action, including appellate proceedings and execution of any judgment.
- CONFIDENTIALITY: ResMed may disclose confidential information to Customer, including but not limited to the terms of an invoice, Product pricing, sales and new Product development information. Customer will retain such information in confidence and will not use, publish or disclose, or cause anyone else to use, publish or disclose, any confidential information supplied by ResMed without prior written permission. This obligation does not extend to any information subject to disclosure by legal process or information that Customer can demonstrate with tangible evidence was already known or independently developed by Customer, or publicly available, prior to ResMed’s disclosure. In the event of a disclosure required by law, Customer agrees to provide prompt notice to ResMed prior to any such disclosure.
- CHOICE OF LAW; JURISDICTION; VENUE: These Terms are the entire understanding and agreement between Customer and ResMed regarding its subject matter, and supersede any prior oral or written agreements, representations, understandings or discussions between Customer and ResMed. These Terms shall be governed by and interpreted in accordance with the laws of the State of California, excluding that body of law related to choice of laws, and of the United States of America. If any term or condition of these Terms is held invalid or unenforceable by any court, in whole or in part, that term or condition will be construed and enforced to the greatest extent possible and the validity or the remaining terms and conditions will not be affected thereby. Any action or proceeding brought to enforce these Terms or to adjudicate any dispute arising hereunder shall be brought in the courts of the County of San Diego, State of California. Each of the parties hereby submits itself to the exclusive jurisdiction and venue of such courts for purposes of any such action and agrees that any service of process may be affected by delivery of the summons and complaint to the address used for communications. By agreeing to these Terms, both Customer and ResMed agree to waive any right to participate in a class action or consolidated action regarding a dispute by joining a disputed claim with the disputed claim of any other person or entity or to assert a disputed claim in a representative capacity on behalf of anyone else in any lawsuit, arbitration or other proceeding.
- REGULATORY COMPLIANCE: Customer represents and warrants that Customer will abide by all the applicable laws related to its sale of the Products, including disclosure of discounts or rebates on Products reportable to government or other reimbursement programs, and will maintain all applicable licenses as required by law. Customer further agrees to comply with all laws, regulations and instructions relating to: a) storage and distribution of medical products, b) medical device record-keeping requirements; and c) maintaining records of serial and or batch numbers of Products dispensed to patients. Customer further agrees to immediately notify ResMed of any circumstance that reasonably suggests that a ResMed Product has caused or contributed to a death or serious injury, or has malfunctioned in such a way if it were to reoccur would be likely to cause harm (21 CFR 803.50), or such other law as may apply in the country in which Customer operates. Specifically, Customer agrees to:
- promptly inform ResMed of any complaint involving injury, safety, Product performance, or an adverse event involving Products;
- report to ResMed all available information with respect to the complaint, including any written, electronic or oral communication that alleges deficiencies related to the identity, quality, durability, reliability, safety, effectiveness or performance of the Product;
- maintain records of (i) name of the Product (ii) date the complaint was received (iii) serial and or lot numbers of Product (iv) name, address, and telephone number of the complainant and (v) nature of the complaint;
- follow ResMed’s instructions with respect to any recall or other safety action with respect to ResMed Products; and
- In the event Company is unable to comply with subsection (c) (iii) above, provide ResMed, for the sole purpose of notification, with a complete list of names and addresses of all patients of the Product affected by a recall.
Life support Product tracked by the Food and Drug Administration (FDA) in accordance with 21 CFR 821 have specific traceability requirements. ResMed will conduct periodic audits of Customer to assess Customer's capabilities to properly track life support Product. Customer will be required to keep accurate and current tracking information for the useful life of the life support Product and shall make any records required available to ResMed or FDA. A distributor, final distributor, or multiple distributors, after purchasing a life support Product shall promptly provide ResMed with the following information:
- The name and address of the distributor, final distributor or multiple distributors;
- The lot number, batch number, model number, or serial number of the life support device or other identifier;
- The date the life support device was received;
- The person from whom the life support device was received; and
- If applicable, the date of the patient's injury or death; or the date the life support Product was returned to the manufacturer, permanently retired from use, or otherwise permanently disposed of.
- DISCOUNTS. In some circumstances, discounts, credits, rebates or other Product incentives that are paid or applied by ResMed on the sale of Products can constitute a "discount or other reduction in price" pursuant to the Medicare/Medicaid Anti-Kickback Statute set forth in 42 U.S.C. § 1320a07b(b)(3)(A) and the discount safe harbor provisions found set forth in 42 C.F.R. § 1001.952(h). If applicable, ResMed and Customer will comply with the "safe harbor" regulations reporting such discount or reduction in price as required under the Anti-Kickback Statute and safe harbors.
- INTERNATIONAL REGULATORY COMPLIANCE. The aforementioned clauses apply to Customers outside the United States, except clause 13. Additionally, international Customers agree to comply with all laws and regulations for the country in which they operate. International Customers shall not import Products that do not have applicable regulatory approvals. Customers shall maintain all applicable business licensing in order to operate as a distributor of medical products in the country in which Customer operates. Customers shall not export or sell ResMed Products to other regions without ResMed prior written consent. Canada: All medical device distributors or importers must maintain a Medical Device Establishment License (MDEL) in accordance with section 44 of the Canadian Medical Device Regulations.