Terms of service

GENERAL TERMS AND CONDITIONS
  1. Scope
These General Terms and Conditions (“GT&Cs”) govern the purchase and sale of medical devices and related products (“Products”) by Andau Medical Inc. (“Andau”) to its customers (“Customer”). The nature of the business relationship is that of independent parties engaged in the commercial distribution, resale, and use of approved medical devices, in accordance with applicable laws and regulations.
 
These GT&Cs applies to and forms an integral part of all quotations, proposals, offers, order confirmations, invoices, deliveries, and sales of Products by Andau, unless otherwise agreed to in writing by an authorized representative of Andau. Any terms or conditions contained in the Customer’s purchase orders or other documents that are inconsistent with, or additional to, these Terms and Conditions are hereby rejected and shall be of no force or effect unless expressly accepted in writing by Andau.

  1. Independent Contractor
Andau is and shall at all times remain an independent contractor and shall not represent itself as an employee, agent, joint venture, or partner of the Customer, nor imply any relationship other than that of an independent contractor. Andau shall not make any representations or engage in any conduct that could reasonably lead a third party to believe that an agency, partnership, joint venture, or employment relationship exists between Andau and the Customer. For greater certainty, the Customer shall not be bound by any agreements, warranties, representations, or actions made by Andau to any third party, except where Andau has obtained the Customer’s prior written consent. Nothing in these GT&Cs shall be construed to create an employment relationship between Andau and the Customer.
 
  1. Regulatory Compliance
Andau represents and warrants that all Products supplied under these GT&Cs shall, at the time of delivery, comply with all applicable regulatory requirements imposed by  the US Food and Drug Administration (FDA), as applicable.
 
The Customer is solely responsible for ensuring that all Products are used, stored, handled, and resold in compliance with all applicable local laws, regulations, and professional standards within the jurisdiction in which the Products are received or used.
 
Where required by regulatory authorities, the Customer agrees to cooperate with Andau in connection with any obligations relating to post-market surveillance, adverse event reporting, product recalls, or corrective actions. The Customer shall promptly provide any information or support reasonably requested by Andau to meet these regulatory requirements.
 
  1. Ordering and Acceptance
All orders are subject to acceptance by Andau and dependent on product availability at the time of order processing. Andau reserves the right to reject or delay any order, in whole or in part, due to factors including but not limited to regulatory restrictions, supply chain disruptions, inventory shortages, or pricing errors. Confirmation of receipt of an order does not constitute acceptance.

The Customer shall inspect all Products upon receipt and shall notify Andau in writing of any alleged discrepancies in quantity, damage, or defects within five (5) business days of delivery. Failure to provide written notice within this period shall constitute full and final acceptance of the Products as delivered.
 
All claims must include reasonable supporting documentation. Any claims made after this period will be deemed waived, and the Products will be considered accepted in the condition and quantity delivered.
 
  1. Delivery and Title Transfer 
Unless otherwise agreed in writing, all shipments of Products shall be made F.O.B. Andau’s designated shipping point in the US. Risk of loss or damage to the Products transfers to the Customer upon delivery to the carrier at the shipping point. Title to the Products shall pass to the Customer only upon full payment
 
Andau shall use commercially reasonable efforts to meet agreed delivery dates; however, delivery dates are estimates only and not guaranteed. Andau shall not be liable for any losses, damages, or penalties resulting from delays in delivery, and delivery delays shall not entitle the Customer to cancel the order or terminate these GT&Cs, unless otherwise expressly stated.
 
  1. Pricing and Payment Terms 
Prices are as per the current Andau price list and are subject to change without notice unless otherwise agreed in writing. Prices do not include applicable taxes, duties, shipping, or handling fees, all of which are the responsibility of the Customer.
 
  1. Product Recalls 
In the event of a product recall, field safety corrective action, or withdrawal of Products for safety, regulatory, or quality-related reasons (each a “Recall”), Andau shall have the sole discretion to initiate or coordinate the Recall and shall notify the Customer as soon as reasonably practicable upon becoming aware of the issue.
 
The Customer agrees to cooperate fully with Andau in all aspects of the Recall. The Customer shall provide all necessary information, documentation, and assistance reasonably requested by Andau to facilitate an efficient and compliant Recall process.
 
Nothing in this clause limits Andau’s right to take immediate action to protect patient safety, comply with applicable laws, or meet its obligations to regulatory authorities.
 
  1. Liability and Indemnification
 
To the fullest extent permitted by applicable law, the total liability of Andau, whether in contract, tort, or otherwise, for any claim arising out of or in connection with the sale, delivery, use, or performance of any Product shall be limited to the purchase price paid by the Customer for the specific Product giving rise to the claim or to actual direct damages, whichever is less.
 
In no event shall Andau be liable for any indirect, incidental, consequential, special, punitive, or exemplary damages, including but not limited to loss of profits, loss of business opportunity, downtime costs, or claims of third parties, even if advised of the possibility of such damages.
 
The Customer agrees to indemnify, defend, and hold harmless Andau, its affiliates, officers, directors, employees, and agents, from and against any and all claims, liabilities, damages, losses, and expenses (including legal fees and costs) arising out of or related to:
 
  1. The Customer’s misuse, mishandling, or improper storage or application of the Products;
  2. The unauthorised resale, alteration, or modification of the Products; or
  3. The Customer’s violation of any applicable law, regulation, or third-party right in connection with its purchase, use, or distribution of the Products.
 
These limitations and indemnities shall survive termination or expiration of these GT&Cs.
 

9. Intellectual Property

 
All intellectual property rights, including but not limited to patents, trademarks, copyrights, trade secrets, designs, and know-how, in or relating to the Products supplied under these GT&Cs shall remain the sole and exclusive property of Andau or its licensors.
 
The sale or use of any Products does not grant the Customer any rights, title, or interest in or to any intellectual property owned or licensed by Andau, except as necessary for the intended use of the Products in accordance with accompanying documentation and applicable law.
 
The Customer shall not, and shall not permit any third party to, directly or indirectly:
 
  1. Reverse engineer, decompile, disassemble, or otherwise attempt to derive the composition, design, or underlying technology of the Products;
  2. Modify, replicate, reproduce, or create derivative works from any part of the Products; or
  3. Remove, obscure, or alter any proprietary notices or markings on the Products.
 
Any unauthorized use or infringement of Andau’s intellectual property shall constitute a material breach of these GT&Cs and may result in legal action, including injunctive relief and damages.

 10. Confidentiality

Each party agrees to keep confidential and not to disclose to any third party, without the prior written consent of the other party, any non-public, confidential, or proprietary information disclosed by one party to the other, whether orally, visually, electronically, or in writing, and whether marked as confidential or not, that a reasonable person would understand to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”).
 
The receiving party shall:
  1. Use the Confidential Information solely for the purpose of fulfilling its obligations under these GT&Cs;
  2. Restrict access to the Confidential Information to its employees, agents, or contractors who need to know such information for that purpose and who are bound by confidentiality obligations no less protective than those contained herein; and
  3. Protect the Confidential Information using at least the same degree of care it uses to protect its own confidential information, and in no event less than a reasonable degree of care.
 
The obligations under this clause shall not apply to information that the receiving party can demonstrate:
  1. Was already lawfully in its possession without restriction at the time of disclosure;
  2. Was or becomes publicly available through no fault of the receiving party;
  3. Was independently developed without use of or reference to the disclosing party’s Confidential Information; or
  4. Is required to be disclosed by law, regulation, or valid court order, provided that the receiving party gives prompt notice to the disclosing party (unless prohibited by law) to enable the disclosing party to seek a protective order or other appropriate remedy.
These confidentiality obligations shall survive for a period of five (5) years following termination or expiration of these GT&Cs, or such longer period as may be required under applicable law.

11. Force Majeure

 
Andau shall not be liable for any delay or failure to perform its obligations under these GT&Cs due to causes beyond its reasonable control, including but not limited to acts of God, natural disasters, pandemics, labour disputes, government actions, transportation delays, or supply chain disruptions. In such cases, Andau’s obligations shall be suspended for the duration of the event causing the delay.
 

12. Dispute Resolution

 
Any dispute, controversy, or claim arising out of or relating to these GT&Cs shall be resolved by binding arbitration in accordance with the Arbitration Act (Alberta). The arbitration shall be conducted in Alberta, in English, by a single arbitrator mutually agreed upon by the parties. The decision of the arbitrator shall be final and binding, and judgment may be entered in any court of competent jurisdiction. Each party shall bear its own legal costs, unless otherwise determined by the arbitrator.
 
13.Compliance with Laws
 
Andau represents, warrants, and covenants that it shall comply with all applicable international, federal, provincial, State, and local laws and regulations in the performance of its obligations under these GT&Cs and in all dealings related to the Products.
 

14. Indemnification

 
The Customer agrees to indemnify, defend, and hold harmless Andau, its affiliates, officers, directors, employees, and agents from and against any and all claims, liabilities, losses, damages, costs, and expenses (including reasonable legal fees) arising out of or related to:
 
  1. The Customer’s use, handling, storage, marketing, or resale of the Products in a manner inconsistent with applicable laws, product instructions, or these GT&Cs;
  2. The Customer’s breach of any term, condition, or representation contained herein; or
  3. Any third-party claim arising out of the Customer’s negligence, willful misconduct, or failure to comply with regulatory obligations.
 
This indemnity shall survive termination or expiration of these GT&Cs.
 
15. Governing Law
 
These GT&Cs, including all attachments hereto, and the performance of all obligations hereunder, as well as any civil actions, arbitrations, or causes of action arising from or related to it, shall be governed solely by and construed in accordance with the laws of the Province of Alberta, Canada.
Compliance with Laws
Each party shall comply with all applicable federal, provincial, and local laws, regulations, and ordinances in the performance of its obligations under this Agreement. The Customer is responsible for ensuring that its use, resale, or distribution of any products or services provided under this Agreement complies with all applicable laws in its jurisdiction, including but not limited to import, export, labeling, and consumer protection laws.
Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable therein, without regard to any conflict of law principles. Any disputes arising out of or in connection with this Agreement shall be submitted to the exclusive jurisdiction of the courts of the Province of Alberta, and the parties irrevocably attorn to the jurisdiction of such courts.
 

16. Miscellaneous

 
Entire Agreement: These GT&Cs supersedes and replaces all prior agreements, arrangements, discussions, correspondence, and understandings – whether written or oral – between Andau and the Customer relating to the subject matter herein. Together with any attached Schedules, these GT&Cs constitutes the entire agreement between the parties and fully expresses the terms of their relationship. Each party acknowledges that it is entering into these GT&Cs without reliance on any representation, warranty, or statement made by or on behalf of the other party that is not expressly set out in these GT&Cs.
 
Waiver: The failure of either party to enforce any provision of these GT&Cs shall not be construed as a waiver of that provision or any other rights under these GT&Cs.
 
Severability: If any provision of these GT&Cs is held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect, and the parties shall negotiate in good faith to replace the invalid provision with a valid one that most closely matches the original intent.
 
Amendments: No amendment, modification, or waiver of any provision of these GT&Cs shall be effective unless it is made in writing and signed by an authorized representative of each party. No course of conduct, dealing, or performance shall be deemed to modify, amend, or waive any provision of these GT&Cs.
 
Assignment: The Customer shall not assign, transfer, or delegate any of its rights or obligations under these GT&Cs without the prior written consent of Andau, and any such attempted assignment without consent shall be null and void. Andau may assign these GT&Cs, in whole or in part, without the consent of the Customer, including to any affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. These GT&Cs shall be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.