Terms and Conditions (effective 03/01/08)

The following terms and conditions shall apply to all Products provided by Solstice to Purchaser. These terms and conditions, together with the Purchase Order, if any, shall be referred to as the “Agreement.” PURCHASER HAS READ AND AGREES TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS AND THAT SUCH TERMS AND CONDITIONS SHALL GOVERN AND THAT ANY ADDITIONAL OR CONFLICTING TERMS IN ANY PURCHASER-DRAFTED PURCHASE ORDER OR OTHER DOCUMENT SHALL BE OF NO FORCE OR EFFECT. PURCHASER HAS FIVE (5) DAYS FROM RECEIPT OF THESE TERMS AND CONDITIONS TO NOTIFY SOLSTICE THAT PURCHASER DOES NOT WANT TO PURCHASE AND RECEIVE THE PRODUCTS IN ACCORDANCE WITH THE FOLLOWING TERMS AND CONIDTIONS. NOTWITHSTANDING THE FOREGOING, PURCHASER HERBY ACKNOWLEDGES AND AGREES THAT ANY ORDER FOR NEXT DAY DELIVERY SHALL BE AUTOMATICALLY SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS AND THAT BY PLACING SUCH ORDER PURCHASER IS DEEMED TO HAVE ACCEPTED THE SAME.

1. New Account Set Up. Purchaser is required to set up an account with Solstice prior to any orders being placed. Purchaser must contact Solstice at 1-888-461-2255 to set up a new account. Purchaser must have the following information available when calling: (i) billing and shipping address; (ii) tax ID # of legal entity responsible for paying invoices; (iii) shipping address(es); (iv) physician information (for accounts associated with a physician) including: (a) name; (b) address (if different that billing and or shipping address); (c) state license number and expiration date thereof. Changes in any account information, including, without limitation, billing and shipping addresses will require written confirmation. Any such charges should be faxed to 1-888-343-3275. Additional shipping addresses can be added to the account by calling 1-888-461-2255.
2. Credit Limits. Based on the account type and information provided to Solstice during account set up process, a credit limit will be established in an amount to be determined in the sole discretion of Solstice. Orders that place the Purchaser’s account balance over his, her or its established credit limit will not be released for shipping until arrangements are made for payment of outstanding invoices and/or adjustment of credit limits. Once such adjustments are made, orders may be released for delivery. Credit limits may be adjusted based on a Purchaser’s payment history and other criteria. Such adjustments are at the sole discretion of Solstice.
3. Prices. Orders will be invoiced at published prices in effect at the time the order is received by Solstice. All prices are subject to change without notice. All requests for price quotations shall be addressed to Solstice at 1-888-461-2255. Purchaser is responsible for providing information on all discounts and rebates to government health care programs (including Medicare and Medicaid) and other entities concurrently with each order placement or as otherwise may be required under all applicable laws and regulations, including, with limitation, 42 C.F.R.§ 1001.952 (h).
4. Taxes. The prices charged for the Products do not include any foreign, federal, state or local taxes that may be applicable to the sale of the Products to Purchaser. If and when Solstice has the legal obligation to collect such taxes, the appropriate amount shall be added to Purchaser’s invoice and paid by Purchaser, unless Purchaser provides Solstice with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. Payment Terms. All invoices shall be paid in full by Purchaser to Solstice within ninety (90) days of the date of each such invoice, regardless of third-party reimbursement status. Remittances should be sent to the address indicated on the invoice. Payment is recognized on the date received by Solstice or the date the credit card transaction is authorized and the credit card is charged. Invoices may be settled by check or credit card. Credit card transactions may be handled in the following manner: (i) by completing a credit card payment form; or (ii) by providing credit card information when the order is placed. Credit cards accepted are MasterCard, Visa and American Express. Purchaser acknowledges that payment is an independent obligation of Purchaser and is not contingent or dependent upon the services and performance of any third party.
6. Shipping; Inspection. Products will be shipped by priority overnight delivery. Solstice reserves the right to change the Product delivery method without notice. Any such changes will be communicated to Purchaser at the time the order is received by Solstice. Orders received by Solstice after 2:00 pm Pacific Standard Time may not be available for delivery the following business day. Purchaser may be assessed additional shipping and handling charges for orders requiring special and/or expedited delivery. Immediately after each delivery to Purchaser’s possession, Purchaser or its personnel shall inspect the delivered items. If after the inspection, it is determined that the amount or quality of the Products are not in conformity with the order, Purchaser will notify Solstice of the shortage or non-conformity of the shipment within five (5) working days after delivery by calling 1-888-461-2255. Solstice will ship missing or conforming items within thirty (30) days of receipt of notice. If Purchaser fails to notify Solstice within the foregoing five (5) day period, the Products and the shipment thereof shall be deemed accepted by Purchaser.
7. Return Policy. The Products are not returnable for credit under any condition, including, without limitation, that any of the Products have been mishandled or has expired. For assistance with disposal of expired Products, please contact Solstice at 1-888-461-2255. For all other Product-related issues, please contact Solstice at 1-888-461-2255 within thirty (30) days of purchase.
8. Title to Products. Title to each Product shall pass to Purchaser only upon full payment, but risk of loss shall pass upon its delivery by Solstice to the carrier (regardless of whether payment has been made).
9. Use of Products. Purchaser shall use the Products in accordance with the documentation supplied with the Products and all applicable laws, licenses and other restrictions. Purchaser shall not remove or modify any proprietary notices of Solstice or any of its third party vendors from Products. In addition, Purchaser may not, without Solstice’s prior written authorization, add any proprietary or other notices to the Products. Purchaser is fully responsible for complying with all federal, state and local laws and regulations relating to the storage, handling and distribution of the Products and Purchaser shall indemnify, defend and hold Solstice and its affiliates harmless from any and all liability arising out of, directly or indirectly, Purchaser’s storage, handling and distribution of the same.
10. Expiration Date. All of the Products carry an expiration date. Solstice does not recommend the use of any Product after the expiration date printed on the Product Label.
11. Security Interest. Purchaser hereby grants to Solstice a security interest in the Products and in all components, devices, features and accessories thereto, and in any proceeds therefrom to secure payment in full of all sums due under the Agreement. Failure of Purchaser to pay the aforesaid sums when due hereunder, or the insolvency, bankruptcy, assignment for the benefit of creditors, or dissolution or termination of the existence of Purchaser, shall afford to Solstice all the remedies of a secured party under the Uniform Commercial Code of the State of California. Purchaser further agrees and does hereby grant and authorize Solstice to execute, and to file with the appropriate governmental authority, any and all financing statements (and other documents) on behalf of Purchaser necessary to perfect Solstice’s security interest in the Products and, for this purpose only, hereby appoints Solstice, its representatives and designees as attorneys-in-fact, agents and authorized signatories of Purchaser for such financing statements. If Solstice shall be required to regain possession by judicial process, Purchaser expressly waives any right to require Solstice to post any security as a precondition to securing a judicial order granting immediate repossession.
12. Limited Warranty. Solstice hereby represents and warrants that, no Product that falls within the scope of the Federal Food, Drug and Cosmetic Act (the “Act”) (i) is or has been adulterated or misbranded within the meaning thereof to the extent that the Act is effective as of the date of the order; or (ii) is an article which may not under the provisions of section 505 of the Act be introduced into interstate commerce. Solstice further represents and warrants that the product has been manufactured or produced in substantial conformity with the provisions of the Fair Labor Standards Act of 1938 as amended.
13. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN AND ANY AND ALL DOCUMENTATION DELIVERED WITH THE PRODUCTS, THE PRODUCTS ARE PROVIDED “AS IS,” WITH ALL FAULTS. EXCEPT AS EXPRESSLY SET FORTH HEREIN AND FOR WARRANTIES DELIVERED IN WRITING WITH PRODUCTS, SOLSTICE MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED WITH REGARD TO THE PRODUCTS. EXCEPT AS EXPRESSLY SET FORTH HEREIN AND EXCEPT FOR THE WARRANTIES DELIVERED IN WRITING WITH PRODUCTS, SOLSTICE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICUALR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND TITLE/NON-INFRINGEMENT. PURCHASER ASSUMES TOTAL RESPONSIBILITY AND RISK FOR ITS PURCHASE, SALE, DISTRIBUTION AND USE OF THE PRODUCTS. NOTHING IN THIS AGREEMENT SHALL BE INTERPRETED AS A WARRANTY, EITHER EXPRESS OR IMPLIED, BY SOLSTICE THAT WOULD EXPAND IN ANY WAY THE WRITTEN WARRANTIES PROVIDED WITH THE PRODUCTS.
14. Limitation of Liability. IN NO EVENT SHALL SOLSTICE OR ITS AFFILIATES, VENDORS, LICENSORS AND OTHER RELATED THIRD PARTIES BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF GOODWILL OR BUSINESS REPUTATION, BUSINESS INTERRUPTION, LOSS OF DATA, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF OR CONNECTED IN ANY WAY WITH THE PRODUCTS AND/OR THIS AGREEMENT, OR FOR ANY CLAIM BY ANY THIRD PARTY (INCLUDING FOR INTELLECTUAL PROPERTY INFRINGEMENT), EVEN IF SOLSTICE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOLSTICE DOES NOT AND IS NOT PROVIDING MEDICAL ADVICE OR DIAGNOSIS AND PURCHASER IS SOLELY RESPONSIBLE FOT ITS DECISION TO PURCHASE, DISTRIBUTE AND USE THE PRODUCTS. SOLSTICE WILL NOT BE LIABLE FOR ANY INJURIES OR MEDICAL MALPRACTICE OR CLAIMS FOR REMUNERATION ASSOCIATED WITH ANY FORM OF DAMAGES, FORSEEN OR UNFORSEEN, INCURRED AS A RESULT OF PURCHASER’S OR ANY THIRD PARTY’S USE OF THE PRODUCTS. SOLSTICE DOES NOT ENDORSE ANY OF PURCHASER’S OR ANY OTHER THIRD PARTY’S MEDICAL TREATMENTS. PURCHASER’S AND ANY OTHER THIRD PARTY’S REMEDY FOR DISSATISFACTION WITH THE PRODUCT IS TO STOP USING THE PRODUCT. THE TOTAL LIABILITY OF SOLSTICE TO PURCHASER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT [INCLUDING NEGLIGENCE], OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY PURCHASER FOR THE PRODUCTS.
15. Force Majeure. Neither party will be deemed to be in default hereunder for failure to perform any of its non-monetary obligations under this Agreement, provided such failure results from acts or omissions of the other party or third parties or for any failure of performance due directly to causes beyond its control, acts of God, fires, floods, or other catastrophes, riots, war, civil disorder, strikes, lockouts, work stoppages, or other labor difficulties, court order or any other causes beyond that party’s reasonable control and which it could not have prevented by reasonable precautions or could not have remedied by the exercise of reasonable efforts.
16. Governing Law; Miscellaneous. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania and constitutes the entire agreement and understanding between Purchaser and Solstice with respect to the purchase and sale of the Products. Except for the actions seeking injunctive relief (which may be brought in any appropriate jurisdiction) suit under this Agreement shall only be brought in a court of competent jurisdiction in the Commonwealth of Pennsylvania. This choice of venue is intended by the parties to be mandatory and not permissive in nature, and to preclude the possibility if litigation between the parties with respect to, or arising out of, this Agreement in any jurisdiction other than that specified in this Section. Each party waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this Section. This Agreement shall not be modified or amended unless by a writing executed by an officer of Solstice or an officer, a partner or the principal of Purchaser, whichever is the party against whom the modification or amendment is sought to be enforced.

See Important Safety Information below.