Terms and Conditions of Sale
- GOVERNING TERMS: The Terms and Conditions of Sale (“Terms”) shall exclusively govern the sale of equipment, components and related services by Nephros, Inc. (“Nephros”) to any customer (“Buyer”) with notice of these Terms, however gained, including the use of Nephros’ website. Acceptance of Nephros’ offer contained in any Nephros proposal, quotation, or sales contract (“Sale Contract”) by acknowledgment is expressly limited to these Terms and those terms stated in the Sales Contract, which together constitute the entire agreement (the “Agreement”) between the parties. Nephros hereby rejects any contradictory terms and conditions in any purchase order, acceptance acknowledgment, or other standard form used in the performance of this Agreement. Buyer’s written acknowledgment of a Sale Contract or commencement of performance, including Buyer’s use of any equipment or components provided by Nephros, will constitute acceptance of the terms and conditions of this Agreement. Notwithstanding the foregoing, if Nephros and Buyer are parties to a specific written agreement under which the parties have agreed on terms and conditions related to the sale of equipment or components (an “Existing Agreement”), in the event that any term, condition or provision of these Terms conflict with any term, condition or provision of such Existing Agreement, the Existing Agreement shall govern and control.
- PRICING: Pricing is as stated in the Sale Contract. Unless otherwise stated therein, prices quoted are valid for acceptance within 30 days of a Nephros quote. Typographic or other errors in pricing are subject to correction. If Buyer causes or requests delays in shipment or performance of services beyond 3 months from acceptance of the Sale Contract, Nephros shall have the right to increase prices based on actual escalation in labor, material, overhead, and component costs, if applicable.
- PAYMENT TERMS: Nephros will invoice Buyer upon shipment of goods or performance of services, as applicable. Payment of the purchase price, and any other amounts incurred by Nephros on behalf of Buyer, shall be due in full within 30 days from the invoice date, unless otherwise specified in writing. Based on Buyer credit rating and/or past payment history, Nephros may require upfront payment, prior to the shipment of any goods. Invoices issued by Nephros for whole or partial shipments of goods shall be paid by Buyer regardless of disputes relating to other invoices, and Buyer waives the right to assert offsets or counterclaims with respect to such invoices. Buyer shall promptly notify Nephros’ customer service personnel of any disputed invoice. Late payments shall be subject to a finance charge computed daily at a rate equal to the lower of 1.5% per month or the highest rate permissible under applicable usury law. Buyer agrees to pay Nephros’ reasonable attorneys’ fees and other costs incurred in collection of any amounts not paid when due.
- TAXES: Unless otherwise indicated on the Sale Contract, pricing does not include sales, use, excise or similar taxes. Buyer shall pay directly or reimburse Nephros for payment of any and all applicable sales, use, excise or other taxes. Buyer is responsible for and bears the risk of establishment of a valid exemption from any tax and shall indemnify defend and hold Nephros harmless from any loss, cost or expense related to exemptions.
- SHIPPING: All product and components will ordinarily be shipped in one lot by the lowest cost method at discretion of Nephros. Additional shipments requested by Buyer shall be subject to additional shipping and handling charges. If Buyer has not specified a carrier, Nephros may select the carrier but will not be deemed thereby to assume any liability in connection with the shipment nor will the carrier be construed to be an agent of Nephros. Unless otherwise indicated on the Sale Contract, (i) all shipments to Buyer locations within the United States of America shall be made F.O.B. origin (under U.C.C. shipping terms) Nephros’ warehouse, and (ii) all shipments to Buyer locations outside the United States of America shall be made FCA Nephros’ docks (under Incoterms® 2020). Title to and all risk of loss concerning the goods shall pass to Buyer upon the delivery of the goods to the carrier. The reasonable cost of shipping and insurance, if requested by Buyer, will be billable to Buyer at cost as a prepay and add line item on the final invoice. Any extra charge incurred for additional services, including loading, storage and handling, will be paid by Buyer.
- DELIVERY DATES: Unless otherwise specified by Buyer, Nephros policy is to ship immediately after receipt of an order, subject to product and accessories availability and stock levels. Delivery dates and times are estimated and are not guaranteed by Nephros. Nephros will use every reasonable effort to meet estimated delivery dates, but under no circumstances shall Nephros be liable for any direct, or indirect, consequential, incidental, liquidated or other damages for delay in delivery.
- GOODS ACCEPTANCE: All equipment and components delivered to the original receiving location should be duly inspected upon receipt, and any shortage or visible damages noted on way-bill and followed up with a full inspection within a period not to exceed two weeks from delivery date. If a written report is not submitted to Nephros within this period it is assumed that the equipment is received and meets the specifications of the order and is duly accepted by Buyer. Buyer’s rejection of any equipment shall not shift risk of loss of the equipment until the equipment is returned to Nephros, freight prepaid, pursuant to Nephros’ written authorization.
- CANCELLATIONS AND RETURNS: Buyer may cancel or terminate its order without penalty if the order has not shipped. Buyer may return unused product, freight prepaid, within 30 days from the date of original purchase subject to inspection and approval by Nephros. Product must be unopened, unused, undamaged, and in sellable condition. Sterile product packaging must be intact. To initiate a return, Buyer must contact Nephros, either by email, or phone at (201) 343-5202, to arrange for a Returned Goods Authorization. Returns are subject to a 15% return and stocking fee per company policy.
- LIMITED WARRANTY: Nephros warrants to Buyer that the products and accessories furnished will conform to the published specification of the applicable product and be and remain free from defects in workmanship and materials for a period of (a) 12 months from completion of installation or (b) 18 months from the date of delivery to Buyer, whichever expires first for accessories and components. Notwithstanding the foregoing, Nephros filters are excluded from the foregoing warranty and are instead subject to the terms and conditions outlined in the specific filter’s limited warranty published on Nephros’ website. Nephros will replace, at its sole discretion, any such defective component at no charge provided that Nephros is notified promptly in writing of any claimed defect and if requested by Nephros, any part or component is returned to Nephros, freight pre-paid. Nephros will be responsible for replacing the defective product or component and is not responsible for any on-site plumbing work related to modifications or changes. This warranty does not apply to any defect or malfunction arising out of failure to store, install, operate or maintain the equipment in accordance with instruction by Nephros or its operation under conditions other than those defined by Nephros. Any unauthorized modification or alteration of the product or repair or replacement of components may void this warranty, at the sole option of Nephros. THE WARRANTIES STATED IN THIS SECTION ARE GIVEN IN PLACE OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE AND ALL SUCH OTHER WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. NO PROMISE OR AFFIRMATION OF FACT MADE BY ANY AGENT OR REPRESENTATIVE OF NEPHROS SHALL CONSTITUTE A WARRANTY BY NEPHROS OR GIVE RISE TO ANY LIABLITY OR OBLIGATION.
- EXCLUSIVE REMEDIES: Buyer acknowledges that its sole and exclusive remedy for breach of the Limited Warranty shall be replacement by Nephros of any defective part or component. This remedy does not include any other consequential, incidental, special or other form of damages or extraordinary costs for removal or re-installation.
- LIMITATION OF LIABILITIES: In no event shall Nephros be liable to Buyer or to any third party for any consequential, indirect, incidental, special, exemplary, punitive, or enhanced damages, loss of use, cost of cover, extraordinary removal or re-installation costs, or governmental fines or penalties arising out of, or relating to, or in connection with failure of its equipment to meet the Limited Warranty, late shipment, errors or omissions in installation or any other breach or failure to perform whatsoever, regardless of (a) whether such damages were foreseeable, (b) whether or not Nephros was advised of the possibility of such damages, (c) the legal or equitable theory (contract, tort or otherwise) upon which the claim is based, and (d) the failure of any agreed or other remedy of its essential purpose. Under no circumstances shall Nephros’ aggregate liability arising out of or related to this Agreement exceed the purchase price of the equipment or services in respect of which the claim is made. No action may be brought by Buyer against Nephros after 18 months from the date of delivery of the equipment and/or services, and Buyer acknowledges and agrees that this provision shall be grounds for dismissal of any suit or claim asserted by Buyer after such time.
- FORCE MAJEURE: Nephros shall not be liable to Buyer for any delay or failure of delivery of any of the goods or other nonperformance caused in whole or in part by any contingency or event beyond Nephros’ reasonable control, including, without limitation, acts of any government or any agency or subdivision thereof, war, riots, acts of God, pandemic or epidemic, machinery breakage, or any shortage of or inability to secure labor, transportation facilities, fuel, energy, raw materials, or supplies at reasonable prices or from regular sources. In the event of the occurrence of any of the foregoing, Nephros may distribute its available goods and material among its customers on such a basis as Nephros shall deem fair and equitable, without liability to Buyer.
- GOVERNING LAW: The validity, operation, and performance of this Agreement (including all matters arising out of or relating to this Agreement) shall be governed by, construed and enforced in accordance with the laws of the State of Delaware without regard to its conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Any claim, cause of action, suit or demand allegedly arising out of or related to this Agreement shall be brought exclusively in the state or federal courts located in the State of Delaware, and the parties irrevocably consent to jurisdiction in, and venue of such courts. BUYER IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
- MODIFICATION AND WAIVER: No addition to, or modification or waiver of, any provision of this Agreement shall be binding upon Nephros unless specifically accepted in writing by an authorized representative of Nephros. Any waiver shall be limited to the circumstance or event specifically referenced in the written waiver document and shall not be deemed a waiver of any other term of this Agreement or of the same circumstance or event upon any recurrence thereof.
- ASSIGNMENT: Buyer shall not assign any of its rights or obligation without the express prior written consent of Nephros, which consent may be withheld, delayed or conditioned in Nephros’ sole discretion. The transaction between Buyer and Nephros shall not be construed to confer or create a third-party beneficiary relationship with any other entity.
- SEVERABILITY: In the event that any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future law, rule or regulation, such provision will be deemed stricken from this Agreement, but such illegality, invalidity or unenforceability will not invalidate any of the other provisions of this Agreement.
Last updated: June 14, 2022