Important Safety Information | NIOX VERO® User Manual (PDF)

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NIOX Terms and Conditions of Sale.

Last updated: 3/7/2022

  1. GENERAL: The following Terms and Conditions of Sale (“Terms”) govern all sales of products (“Products”) by Circassia Inc., a member of the Circassia Group of companies (“Circassia”) to a purchaser of the Products (“Customer”) regardless of whether Customer purchases the Products through written purchase orders, electronic orders, verbal or written quotations, or any other writings or communications from Circassia and/or Customer relating to the Products (collectively or individually, an “Order”). Acceptance of any Order is expressly conditioned upon Customer’s consent to these Terms. All sales are subject to written confirmation by Circassia. Receipt by Customer of Circassia’s acknowledgement of an Order without prompt written objection thereto or Customer’s acceptance of all or any part of the Products ordered shall constitute acceptance by Customer of these Terms. No addition, interlineations, deletions, modifications or amendments of these Terms shall be binding upon Circassia unless specifically agreed to by Circassia in writing.  Circassia objects to any terms or conditions contrary to or in addition to the terms and conditions in these Terms that may be proposed by Customer or otherwise contained in any correspondence or documentation of Customer, and acceptance of any Order by Circassia shall not be construed as assent to such contrary or additional terms and conditions, or constitute a waiver by Circassia of any of the terms and conditions contained in these Terms. 
  2. PRODUCT PRICE QUOTATIONS: Product quotations are not a firm commitment. No contract for sale shall arise until a written acknowledgement from Circassia accepting the Customer’s Order, is sent by Circassia to the Customer.
  3. DELIVERY: Circassia shall ship all items when and as specified in the Order. Unless otherwise specified by Circassia in writing, the Product(s) shall be delivered FOB Destination, Freight Prepaid and Added.
  4. DELAYS IN DELIVERY: Delivery periods and deadlines stated are subject to timely deliveries made to Circassia by its suppliers, which are not guaranteed. All standard shipping is FedEx or UPS Ground, 3-5 business days. Expedited shipping is available upon request at an additional charge. Ground and Expedited shipping is not guaranteed by the carrier and Circassia will not be responsible for carrier delays. Under no circumstances shall Customer be entitled to any actual, liquidated, consequential or any other direct or indirect damages of any kind arising from Circassia’s failure to ship on time or its carriers’ failure to deliver on time.
  5. PRICE OF PRODUCT: Unless otherwise stated in an Order, Circassia’s list price in effect at the time of order acceptance shall apply. List prices are subject to change at Circassia’s sole discretion. Unless otherwise stated in an Order, the price of the Product(s) shall include items as listed on the packing slip or Order; interior and exterior packaging and necessary documentation for shipment from Circassia. Special packaging is not included. Additional cost shall be added to the price when the Customer requests that the Product be packaged or shipped in a special manner.
  6. TERMS OF PAYMENT:
    1. Circassia shall promptly invoice the Customer for all items shipped to Customer pursuant to an Order, without set-off, counterclaim, reduction or diminution of any kind. Unless agreed to in writing by Circassia upon acceptance of an Order, Customer shall pay each invoice for items shipped pursuant to an Order within thirty (30) days after the date of the invoice. In the event payment is not received when due, interest shall accrue at the rate equal to the lower of (i) 1.5% per month or (ii) the highest rate of interest permitted under applicable law on the unpaid portion of the invoice sum for each period of thirty (30) days or part thereof from the due date. Customer shall be liable and pay all of Circassia’s costs of collection of any amounts past due, including, but not limited to reasonable attorney’s fees and court costs.
    2. All Orders are subject to the approval of Circassia’s credit department. Circassia’s credit policies or practices may be changed at any time.If at any time Customer fails to fulfill the terms and conditions of payment, fails to provide security in compliance with Circassia’s credit policies, or Circassia otherwise deems itself insecure concerning payment by Customer, Circassia reserves the right to (a) cancel all or any part of an Order; (b) modify the terms of payment or required security prior to shipment; (c) require “Cash in Advance” or letter of credit payment terms; (d) delay or cancel any Product shipment; or (e) refuse to provide Product support. 
    3. Circassia is required to collect applicable taxes on Product sales at the rate in force from time to time. If Customer has been granted tax exempt status under applicable laws, Customer shall provide current certificate of exemption to Circassia at the time the Order is placed. No adjustments will be made if a certificate of exemption is not provided until after the sale is complete.
    4. As collateral security for the payment of the purchase price of the Products, Customer hereby grants to Circassiaa lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the North Carolina Uniform Commercial Code.
  7. INSPECTION; RETURNS: Unless Circassia receives a written complaint with full particulars from Customer regarding any defective Product(s) or other complaints within five (5) business days from the date the Product(s) arrive at the destination indicated on the Bill of Lading, the Product(s) shall be deemed to have been delivered in good condition and that the delivery is accepted.
  8. LIMITED WARRANTY: Subject to the conditions set out herein, Circassia warrants the Product to be free from defects in material and workmanship (a) with respect to the NIOX VERO® device for a period of twelve (12) months after original delivery; and (b) with respect to the NIOX VERO sensor, for a period of twelve (12) months after the date the NIOX VERO sensor is activated or the stated expiration date of the NIOX VERO sensor, whichever occurs earlier (the “Warranty Period”). If, during the Warranty Period, the Product fails to operate under normal use due to defects in materials or workmanship, Circassia will, at its sole discretion, replace, repair or credit the non-functioning Product in accordance with the terms and conditions stipulated herein. In addition, the following limitations will apply:
    1. This Limited Warranty is not transferable and may only be invoked by the original Customer of the Product.
    2. The Limited Warranty is valid only if the original proof of purchase issued to Customer by Circassia, specifying the date of purchase and serial number(s), is presented with the Product to be replaced, repaired or credited. Circassia reserves the right to refuse warranty replacement, repair or credit if the said Product information has been removed or changed after the original purchase of the Product from Circassia.
    3. If Circassia replaces or repairs the Product, the replaced or repaired Product shall be warranted in accordance with this Limited Warranty (a) for the remaining time of the original Warranty Period, or (b) for three (3) months after the date of delivery of the replaced or repaired Product. With regards to a NIOX VERO® device under warranty, for which a replacement or repaired Product is not provided, the Customer will be credited 90% of original invoice by Circassia if less than twelve (12) months after original delivery. With regards to a NIOX VERO sensor under warranty, all remaining, unused measurements will be credited on the replacement invoice or with the corresponding number of measurements on a new NIOX VERO sensor. Replacement of Product(s) may involve the use of functionally equivalent reconditioned units at Circassia’s sole discretion.
    4. The warranty only applies if the instructions for use set forth in the User Manual have been followed. The User Manual instructions stipulate that the device must not be cleaned with products that contain alcohol. Failure to follow the cleaning instructions in the User Manual will invalidate the Limited WarrantyThis Limited Warranty does not cover any failure of the Product due to misuse, including but not limited to use in other than the normal and customary manner, in accordance with the User Manual instructions for use, maintenance and storage of the Product, or as a result of accidental damage, including, without limitation, damage from being dropped or from exposure to liquids of any kind.
    5. This Limited Warranty does not cover Product failures which have been caused by use of accessories or other peripheral devices which are not approved by Circassia for use with the Product.
    6. Product(s) returned under this Limited Warranty must be packed and returned as instructed by Circassia. If Customer fails to ship Product(s) as instructed by Circassia this Limited Warranty is voided.
    7. Customer is responsible for the shipping cost the defective Product to Circassia. Circassia will bear the cost of shipping to Customer a replacement Product, if applicable.
    8. THE EXPRESS TERMS OF THIS LIMITED WARRANTY ARE IN LIEU OF ANY OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE WARRANTIES OF MECHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE HEREBY EXCLUDED. THE REMEDIES PROVIDED UNDER THIS LIMITED WARRANTY SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND CIRCASSIA’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THESE TERMS.
  9. EXTENDED PRODUCT WARRANTY: If this Purchase includes an extended warranty, the Limited Warranty (above) on the NIOX VERO® monitor only is extended from one (1) year to either three (3) years from purchase or life of device depending on the period for which the extended warranty is purchased. This extended warranty does not apply to NIOX VERO® sensors nor to any accessories including but not limited to breathing handles, cables and storage cases.
  10. DATED PRODUCT DISCLOSURE: Customer acknowledges that NIOX VERO® sensors are expiration dated. If all tests within the sensor are not used by the expiration date, Customer understands there is no recovery from Circassia, Circassia will not compensate, reimburse, or otherwise provide remedy for unused expired product.
  11. TERMINATION: In addition to any remedies that may be provided in these Terms, Circassiamay terminate any Order with immediate effect upon written notice to Customer, if Customer: (i) fails to pay any amount when due under an Order; (ii) has not otherwise performed or complied with any of the terms of any Order or these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
  12. FORCE MAJEURE: Circassia shall not be responsible to Customer, or be deemed to have defaulted under or breached any Order or these Terms, if it is prevented or delayed in fulfilling by conditions beyond its control (each a “Force Majeure Event”) that occur after an Order has been acknowledged, including, but not limited to, labor disputes, fires, wars, or unforeseen acts by the military authorities, requisition, arrests, currency restrictions, insurrection and riots, contagion, requirements of law, or national regional emergency, acts of terrorism, shortages of means of transportation or raw materials or components, general shortages of goods, destruction of large quantities of Products, restrictions in the use of power, extensive damage to or destruction of machinery or other important equipment for production as well as stocks of raw material or components, and defects in or delay of deliveries from suppliers. Written notice of such a Force Majeure Event arising upon Circassia shall be given to Customer in good faith. If Circassia’s performance is prevented or Circassia determines in its discretion that its performance will be unreasonably delayed or encumbered by a Force Majeure Event, Circassia may cancel any Order without future liability upon notice to Customer.
  13. LIMITATION OF LIABILITY: IN NO EVENT SHALL CIRCASSIA BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, ENHANCED OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR REVENUES, DIMINUTION OF VALUE OR ANY OTHER ECONOMIC COMMERCIAL LOSS, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORSEEABLE, WHETHER OR NOT CIRCASSIA WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL CIRCASSIA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO AN ORDER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO CIRCASSIA UNDER THE ORDER.
  14. INSTALLATION: Customer shall be responsible for installation. A company representative and/or technical assistance may be available upon request.
  15. GOVERNING LAW: These Terms and all transactions between Circassia and Customer are governed by the laws of North Carolina, without regard to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. These Terms are subject to the mandatory requirements of any applicable federal or state procurement regulations.
  16. VENUE: Litigation brought to contest disputes arising under any Order or these Terms shall be brought only in the state or federal courts of the State of North Carolina. EACH PARTY IRREVOCABLY: (A) SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS; AND (B) WAIVES ANY OBJECTION TO SUCH COURTS BASED ON VENUE OR INCONVENIENCE. Service of process, summons, notice or other document by certified or registered mail, return receipt requested and postage prepaid shall be effective service of process for any suit, action, or other proceeding brought in any such court.
  17. RETURN GOODS POLICY:
    1. All returns or issues with shipment of product must be reported to Circassia at +1 866 630-6469, Option 3, between the hours of 08:00 am and 6:00 pm or email: sales.us@circassia.com.
    2. Additionally, our policy is:
      1. No returns will be accepted unless there is a shipping error or the item is damaged upon receipt. Shortage or missing items in a shipment must be reported to Circassia within five (5) days of receipt of shipment which is calculated by the date on the Packing Slip.
      2. All returns of goods must be authorized in advance, assigned a Return Goods Authorization Number by Circassia which can be contacted as per above.
      3. Purchaser must provide name, address, account number, quantity and description with serial numbers from equipment and a written complaint with full particulars regarding any defective Product(s) or other complaints.
      4. Return Authorization is only valid for five (5) days after receipt of the Return Goods Authorization Number.