Terms of Service
Updated: Jan 11, 2024
This Service agreement (“Agreement”) entered between, FYF Medical, LLC and its agents, affiliates, and/or subcontractors (“Service Provider”, “We”, “Us”, “Our”) and you and your agents, your affiliates, and/or your subcontractors, excluding your customers (“Customer”, “You”, “Your”) for products related to human cell and tissue, and any other medical products and/or services (“Products and Services”) as outlined in Our quote form, Our order form, or Our purchase order form (collectively the "Order Form") as required by You and agreed to by both parties shall be effective on the earliest of (a) the date You click a button or link indicating Your agreement with the terms of this Agreement; or (b) You enter into or sign the Order Form, or a similar written or electronic form from Us or Our affiliates or agents that references, links, or otherwise incorporates this Agreement.
If You are entering into this Agreement on behalf of Your organization, that organization is deemed to be the Customer and You represent that You have the power and authority to bind Your organization to this Agreement.
PRODUCT AND SERVICES
Now therefore, the parties agree as follows:
PRODUCT PRICE. Product means the human cell and tissue products offered by Service Provider. The Invoice Price is the agreed price for each Product. Customer acknowledges that Service Provider may change its collection of Products and Product Prices (collectively, “Product Catalog”) from time to time due to market conditions and other factors (“Product Catalog Update”). Service Provider shall notify Customer thirty (30) days prior to Product Catalog Update and obtain Customer approval before Product Catalog Update becomes effective.
INSURANCE VERIFICATION. Customer agrees to utilize Service Provider’s Insurance Verification Request form (IVR) prior to ordering and using Products.
ORDER FULFILLMENT. After Customer submits an IVR and receives confirmation of patient’s benefits, the Customer places an order and Service Provider accepts the order and generates an Invoice, which will reflect that the Customer has agreed to purchase the Products identified on the Invoice and the terms of the purchase. Service Provider shall, on Customer’s behalf, promptly pack and ship the Products identified on the Invoice for delivery to the Customer using second-day delivery. Service Provider shall provide delivery status information from the carrier to the Customer for shipment.
PRODUCT USAGE. After receiving Product(s), Customer will treat the patient as medically necessary. Customer and Service Provider acknowledge that use of any Product is at the sole discretion of the treating provider, pursuant to his or her professional medical judgement.
INVOICES & PAYMENT. Service Provider will develop and deliver an Invoice to Customer that identifies the Products ordered are shipped. Customer agrees to pay Service Provider the balance due amount stated in each Invoice within thirty (30) days after product shipment.
DURATION. Duration Period shall mean the period starting on the executed date of this agreement and for 24 months thereafter. During the Duration Period, Customer will not directly or indirectly, through any employee, and will not permit any of its employees to solicit, initiate or encourage, any offers or proposals relating to the purchase of the mentioned product/s in this agreement or any other skin substitute for the treatment of chronic wounds non-operatively from a vendor that is not Service Provider. Service Provider hereby gives Customer the exclusive right to purchase the Product/s upon the terms in this agreement, for the Duration Period.
GENERAL TERMS AND CONDITIONS
This Agreement and its enforcement shall be governed by the state where the Service Provider is headquartered. You consent to resolving any disputes of any claims under this Agreement to take place in the state and federal courts located where the Service Provider is headquartered.
You agree that any dispute (other than our efforts to collect an outstanding invoice) that may arise regarding the meaning, performance or enforcement of this Agreement, will, prior to resorting to litigation, be submitted to mediation, and that the parties will engage in the mediation process in good faith once a written request to mediate has submitted by Us or You. Any mediation initiated shall take place where the Service Provider is headquartered and by a mediator chosen by Us. The results of any such mediation shall be binding only upon agreement of both parties. The participating parties shall share the costs of any mediation proceeding equally.
This Agreement may be executed in one or more counterparts each of which will be deemed an original but all of which when taken together will constitute one and the same instrument. This instrument sets forth the entire Agreement between Us and You and may not be contradicted by any oral understanding or Agreement not reflected herein. This Agreement may not be altered, changed, modified or waived in whole or part except by an Agreement in writing signed by Service Provider and You. An executed electronic copy of this fully executed Agreement shall be deemed an original.
You agree that the terms of this Agreement are not assignable in whole or in part by any party without the prior written consent of Service Provider.
In the event that You fail to provide any of the items herein stated, fail to make payments in a timely manner, or breach any of the other conditions set forth in the Agreement, Service Provider may immediately enforce any and all remedies available to it under law or equity. This event is non-cancellable.
In the event any breach or cancellation of this Agreement by You, any unpaid balance for Services rendered shall become due and payable immediately to Service Provider.
Notwithstanding any other provision of this Agreement, in the event that the performance of any obligation under this Agreement by either party is prevented due to acts of God, weather or natural disaster, pandemic, failure or inadequacy of utility services, exchange controls, export or import controls, supply chain disruption, government mandated shut downs/lock downs/restrictions on business operations, terrorist attacks, lockouts, failure or delay of transportation not within either party's reasonable control, absence of power or other essential services, failure of technical facilities, inclement weather, or any other cause beyond the reasonable control of a party (“Force Majeure”), such party shall not be responsible to the other parties for failure or delay in performance of its obligations under this Agreement. Each party shall promptly notify the other parties of such Force Majeure condition. The terms of this Clause shall not exempt, but merely suspend, any party from its duty to perform the obligations under this Agreement until as soon as practicable after a Force Majeure condition ceases to exist.
Accordingly, any financial or other accommodation offered by Service Provider in the event of an event of Force Majeure is non-obligatory and will be offered only at the sole and absolute discretion of Service Provider, which may be granted or withheld in its sole discretion.
(A) Each party to this Agreement shall each indemnify, release, defend and hold harmless the other party, its directors, officers, agents, affiliates, subcontractors, and employees from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses, including without limitation, reasonable attorneys' fees and costs, arising out of a third party claim, action, or proceeding, based directly or indirectly on any breach of its obligations, representations or warranties contained in this Agreement or arising from or relating to its performance under this Agreement. (B) The party claiming indemnification under this Section shall promptly notify the other party when it has knowledge of circumstances or the occurrence of any events which are likely to result in an indemnification obligation under this section or when any action, suit, arbitration, or judicial or administrative proceeding covered by this section is pending or threatened. (C) Neither party shall be liable to the other for punitive, exemplary, special, indirect, or consequential damages including, without limitation, lost profits, each party's aggregate liability being limited to the other party's direct monetary damages. In the event of a claim from a third party, either party may, at their own expense, assist in the defense if each so chooses, provided that: (i) the ultimate party against whom the claim is asserted shall control such defense and all negotiations relative to the settlement of any such claim; and (ii) any settlement intended to bind the claimant party shall not be final without the claimant party's written consent. (D) In the event of a claim from a third party which entitles either Service Provider or You to claim indemnification under this Section, either party may, at their own expense, assist in the defense of such claim if each so chooses, provided that: (i) the ultimate party against whom the claim is asserted shall control such defense and all negotiations relative to the settlement of any such claim, subject to its obligation to indemnify under this Section; and (ii) any settlement intended to bind the indemnifying party shall not be final without the indemnifying party's written consent. (E) The party to whom the indemnification obligation is owed under this Section shall be required to provide reasonable cooperation to the indemnifying party in the defense of any claim hereunder.