THE TERMS OF SALE SET FORTH HEREIN APPLY TO YOU (THE “BUYER”) AND GOVERN THE SALE OF ALL OF THE Q CORE’S PRODUCTS TO YOU AND THE SALE OF SUCH PRODUCTS BY YOU TO ANY THIRD PARTY. If Buyer has entered into a written agreement with Q CORE with respect to the matter hereof (“Agreement”), these Terms of Sale, which have been incorporated by reference into Q Core’s quotation and/or invoice, are subject to the terms and conditions of such Agreement. In the event of a conflict or inconsistency between the Terms of Sale and the Agreement, the Agreement shall prevail. In the absence of an Agreement, the Terms of Sale constitutes the entire agreement between the parties and supersedes all previous written or oral representations, agreements and understandings.

 

  1. SALE BY BUYER. Buyer shall be entitled, on a non-exclusive, non-transferable and a non-sub licensable basis, to sell the Products in the territory as mutually agreed upon by the parties (the “Territory”). Except as expressly set forth in these Terms of Sale, no other right or entitlement of any kind is granted to the Buyer.
  2. BUYER’S DUTIES AND RESTRICTIONS
    • Restrictions and undertakings. Buyer shall: (i) import and purchase the Products solely from Q Core all pursuant to and in accordance with these Terms of Sales; (ii) not sell the Products under any name other than the Q Core’s trademarks (the “Trademarks”); (iii) obtain and provide to Q Core a copy of, all governmental authorizations, registration licenses and approvals as necessary or advisable to perform its obligations hereunder including as an importer of the Products, comply, at its expense, with all requests of Q Core in relation to the Products and with any applicable laws and regulations with respect to the distribution of the Products in the Territory, including with the European Regulation on Medical Devices EU-MDR/2017/745 (“MDR”) including post market surveillance; (iv) all times maintain a sufficient level of training of its relevant personnel with respect to the Products, will train its customers with respect to the use of the Products and will follow Q Core’s instructions, technical manuals and health and safety guidance; and (v) ensure that the storage, handling and transport conditions of Products are in accordance with the Q Core’s specifications; (vi) take all necessary actions at its costs and expense, to implement and distribute the Products and software enhancements, corrections (including as per Section 3 below) or modification to customers of the Products in accordance with Q Core’s instructions.
    • Buyer shall enable Q Core and competent authorities to perform audits, including unannounced audits by competent authorities and notified bodies.
    • Quality, Traceability. Buyer shall maintain a detailed tracking system that enables Buyer to track Products by customer, or recipient name, address, telephone number, part number(s) shipped, serial number(s) shipped, LOT, quantity shipped and dates of shipment, product current software and former version, and shall provide such information to Q Core upon request.
    • Insurance. Buyer shall maintain via a reputable insurer and during the Term and for a period of five (5) years thereafter, at its own cost and expense, insurance coverage consistent with industry standards for businesses engaged in the distribution of infusion pumps, covering all potential liability of Buyer under these Terms of Sale.
    • End of Life. Q Core may declare an end of life of a Product, to the extent that it shall not provide service to such Product upon at least 180 days prior written notice.
  3. COMPLAINTS. Buyer shall accept notifications of the Product in the Territory regarding complaints and adverse events with respect to the Products (“Complaints”) and notify Q Core of any Complaints within twenty-four (24) hours of becoming aware of a Complaint have occurred; Buyer shall further: (i) assist Q Core to gather additional information and materials from the market place as may be required in order to investigate and resolve a complaint; (ii) implement, to Q Core’s satisfaction, a procedure and a process, including documentation, to accommodate the handling of Complaints; and (iii) comply promptly with any recalls and field safety corrective actions issued by Q Core, including but not limited to notifying customers, performing corrections and making best effort in ensuring customers’ adherence.
  4. SHIPMENTS. Q Core will deliver the Product to Buyer EX Works (Incoterms 2010) (Q Core’s or its authorized manufacturer’s facility).
  5. PAYMENT
    • Payments Delays. Buyer shall pay annual interest at the rate of LIBOR rate plus six (6%) percent (annual) on a gross up basis in respect of each payment overdue.
    • Taxes. The product’s prices do not include national, state or local excise, sales, use, value added or other taxes (“Taxes”) now or hereafter levied by any governmental authority on the sale, purchase, transport or delivery of the Products. Buyer is responsible for all Taxes associated with the PO, except those based on the Q Core net income.
  6. IP AND TRADEMARKS. Q Core exclusively owns all right, title, and interest in the Products including all intellectual property related thereto. Buyer shall have the right to distribute the Products in the Territory under the Trademarks provided by Q Core, all subject to the Trademark Use Terms provided by Q Core from time to time.
  7. TERM. These terms of sale will continue to apply as long as Q Core provides Products to the Buyer and the Buyer sells and distributes these Products in the Territory (the “Term“). Q Core shall be entitled to cease the supply of Products to the Buyer at any time. Any terms included in this document that by their nature or otherwise reasonably should survive any termination or expiration of the Term shall be deemed to survive including, without limitation, Sections ‎3, ‎6, ‎8, ‎9, ‎10 and ‎1110, to the maximum extent permitted under applicable law.
  8. CONFIDENTIALITY. Buyer shall not use any Confidential Information for any purposes other than those specifically authorized in this Terms of Sale, and shall not disclose any Confidential Information to third parties without Q Core’s prior written approval. The foregoing use and disclosure restrictions with respect to Confidential Information shall apply during the Term and for a period of five (5) years after the Termination Date. “Confidential Information” means all non-public data and information of Q Core, including any proprietary information, technical data, trade secrets or know how, communicated, orally, electronically, or in writing, to Buyer, and labeled or identified as “Confidential” or with deems to be by its nature confidential information. The foregoing provisions shall not apply, to Confidential Information that: (i) is known to Buyer at the time of disclosure to Buyer by Q Core as evidenced by written records; (ii) becomes public knowledge without a breach of confidence by Buyer or any third party; (iii) is disclosed to Buyer by a third party lawfully entitled to make such disclosure; (iv) is required to be disclosed pursuant to any statutory or regulatory provision or court order (provided that Buyer promptly notifies Q Core of such potential required disclosure and assists Q Core in preventing or limiting such disclosure, to the extent it may legally do so). The Buyer shall have the burden of establishing any of the foregoing exceptions by clear and convincing evidence. Buyer shall return or destroy all Confidential Information in Buyer’s possession within ten (10) days after the termination of these Terms of Sale.
  9. WARRANTY, LIABILITY, INSURANCE
    • Sapphire Product Warranty. The warranty period for the Sapphire pumps shall be two (2) years following delivery of the pump Products (the “Warranty Period”). Q Core warrants to Buyer that the Sapphire Products will be free from material defects in materials and workmanship and will substantially conform to Q Core’s written specifications (the “Warranty”). Q Core’s responsibility for the pump Products and accountability in connection therewith shall not exceed the time period of seven (7) years from the date of manufacture. Any Q Core sets or accessories used with Q Core’s pumps, shall solely be those provided directly by Q Core or its authorized representatives.
    • Limitations. The Warranties are the only warranties made by Q Core with respect to the Products. Buyer shall not make in the name of Q Core any warranties, representations, guarantees or statements regarding the Products that exceed the scope of the Warranties, and Buyer shall be exclusively responsible for any obligations or other liability arising from any such warranties, representations, guarantees or statements made by Buyer’s or its agents. The Warranties are not transferable to any third party. Notwithstanding the foregoing, this warranty does not cover (i) problems reported to Q Core after the end of the Warranty Period, (ii) any Product (or any part thereof) which has been misused, altered, modified or installed in an unauthorized manner or stored or transported by Buyer in contradiction with Q Core instructions for use and labeling, (iii) any problem arising from or based on the combination, operation or use of the Product with equipment, devices, products, process, or materials data or programming not supplied by Q Core where such combination is the cause of the claim; or (iv) any problem arising by causes beyond the control of Q Core. Q Core shall not be obligated under the Warranties with respect to Products located outside the Territory as a result of the Buyer’s breach of its contractual obligations.
    • Disclaimer. EXCEPT FOR THE WARRANTIES, Q CORE MAKES NO OTHER WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PRODUCTS, ANY TRAINING, AND ANY SERVICES PROVIDED HEREUNDER, AND Q CORE HEREBY DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS OF ANY NATURE, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE.
  10. LIMITATION OF LIABILITY. IN NO EVENT WILL Q CORE OR ANY PARTY ON ITS BEHALF BE LIABLE FOR LOST PROFITS OR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Q CORE’S AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS SHALL NOT EXCEED THE SUM OF ALL FEES ACTUALLY PAID TO Q CORE BY BUYER FROM PRODUCTS SALES DURING THE SIX (6) MONTHS PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE, WITH ALL PAYMENTS BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. IN NO EVENT WILL Q CORE HAVE ANY LIABILITY WHATSOEVER UNDER THESE TERMS TO CUSTOMERS.
  11. MISCELLANEOUS. These Terms of Sale (and any applicable PO) constitutes the complete understandings between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous understandings and other communications relating thereto. These Terms of Sale may be amended from time to time by Q Core upon written notice to Buyer. These Terms of Sale is governed by the laws of the State of Israel, and each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Tel Aviv, Israel to resolve any dispute arising out of or pursuant to these Terms of Sale. If performance of these Terms of Sale, or any obligation hereunder (other than payment obligations) is prevented, restricted, or interfered with by any act or condition whatsoever beyond the reasonable control of the affected party (including the failure of any suppliers to perform), the party so affected, upon giving prompt notice to the non-affected party, and only for the time in which force majeure circumstances affect the performance of its duties arising from these Terms of Sale, will be excused from such performance to the extent of such prevention, restriction, or interference.