ITAMARTM MEDICAL

TERMS AND CONDITIONS OF SALE

The following terms and conditions of sale, together with the terms and conditions stated on the face of the Sales Quote or Purchase Order (“Purchase Order”) (collectively these “Terms”) shall apply to the sale of products and any consumables listed in the Purchase Order (“Products”) supplied by Itamar Medical Inc., or its affiliates listed on the applicable Purchase Order (“Supplier”) to the purchaser/customer (including its affiliates) designated on the Purchase Order (“Purchaser”). Solely upon the Purchaser’s signature on the Purchase Order, and its approval by the Supplier, shall the parties be deemed to having entered into a binding contract for the manufacture, sale and supply of Products by Supplier.

1. SCOPE: All sales by Supplier of any of its Products to Purchaser are subject to these Terms. Purchaser hereby acknowledges and confirms that no terms or conditions contained in any order form submitted by Purchaser that varies from, or conflicts with, any of these Terms shall become part of the Purchase Order or these Terms or the contract for the sale of Products unless it is expressly accepted in writing and signed by Supplier’s authorized representative. Delivery of these Terms to Purchaser constitutes notification of Supplier’s objection to any terms or conditions that vary from or conflict with those contained herein. Except as set forth above, once Supplier has agreed to sell Products to Purchaser, no modification or amendment or addition to these Terms or to any other provision of the contract for the sale of Products shall be binding on either party unless it is in writing and signed by both parties. 
2. DELIVERY AND ACCEPTANCE: Delivery of all Products will be made FOB Origin and/or Ex-Works Supplier’s facilities (Incoterms 2020) (the “Delivery Location”) within fourteen (14) business days of Supplier’s acceptance of the Purchase Order. Supplier shall have the right to deliver Products earlier than any agreed upon delivery date. Supplier reserves the right to make deliveries in installments. 
3. RISK OF LOSS, TITLE AND SECURITY INTEREST: Risk of loss to Products and transfer of title shall pass from Supplier to Purchaser at the Delivery Location upon delivery. 
4. PRICES: The prices of the Products shall be as detailed in the Purchase Order.
5. TERMS OF PAYMENT: Terms of payment for the Products shall be paid thirty (30) days from invoice date, unless otherwise set forth in the Purchase Order. All payments shall be made in US dollars. In the event Supplier institutes legal action against Purchaser to collect delinquent accounts, Purchaser agrees to reimburse Supplier for reasonable legal fees and costs of the legal proceedings. In addition, all late payments shall be subject to a late payment penalty calculated at the rate of the higher of annual rate of 18%, compounded monthly (effective annual rate of 19.56%) or the highest amount permitted by applicable law, which interest shall accrue daily. All payments will be made without set-off or deduction. 
6. TAXES AND ADDITIONAL COSTS: Prices are exclusive of any applicable goods and services (“GST”), harmonized sales (“HST”), sales, use, value added, or other similar taxes, fees, levies, duties and other governmental charges (with the exception of taxes imposed on the income of Supplier), all of which will be borne exclusively by Purchaser. If any payment made by Supplier or Purchaser as a consequence of a breach, modification or termination of these terms and conditions is deemed by the Excise Tax Act (Canada) to include GST/HST, or is deemed by any applicable provincial or territorial legislation to include a similar value-added or multi-staged tax, the amount of such payment shall be increased accordingly.ס
7. PURCHASER DEFAULT: If Purchaser is in default on any provision of these Terms, all of Purchaser’s payment obligations to Supplier shall immediately become due and payable, and Supplier may, without notice, decline to make further shipments, deliveries or terminate Purchaser’s outstanding Purchase Order(s), without affecting any other right or remedy Supplier may have, including, but not limited to, any right to cancellation charges. For purposes of these Terms, a “default” shall occur in the event that Purchaser is more than five (5) days delinquent in any payment to Supplier, becomes insolvent, is adjudicated bankrupt, petitions for or consents to any relief under any bankruptcy reorganization statutes, has a receiver appointed or makes an assignment for the benefit of creditors, or is otherwise unable to meet its financial obligations as they become due. Continued shipment by Supplier following Purchaser’s default, which shall be at Supplier’s sole and absolute discretion, shall not constitute a waiver nor shall it affect Purchaser’s legal obligations hereunder.
8. PURCHASER’S REPRESENTATIONS AND WARRANTIES:
   1. Purchaser will, and will ensure all health care professionals at the Purchaser’s facilities who will use the Products,  use the Products solely in accordance with the operation manual located on the Supplier’s website: https://www.itamar-medical.com/support/downloads/ and which may be modified from time to time by the Supplier (the “Operation Manual”) and any updates as shall be provided by the Supplier and shall ensure that Purchaser’s patients are provided with instructions for proper use of the Products, customer and technical support. 
   2. Purchaser shall only use the serial number(s) assigned to the Products as a means to communicate with Supplier and shall not use such serial number(s) as an identifier in any other manner. 
   3. Purchaser shall use the Products only in the normal course of sleep testing and will not sell, convert or otherwise transfer them to any third party, except as detailed herein. Purchaser will not use the Products on any devices not covered under these Terms. 
   4. Purchaser shall have full and sole responsibility for the proper safeguarding and preservation of the Products. The Purchaser shall promptly and without any undue delay notify the Supplier of any misuse, malfunction or problems related to the Products and shall cease the use of such Products until it is repaired or replaced.
   5. The Products were either evaluated by or demonstrated to and selected by the Purchaser an