General Terms and Conditions of Sales

Effective for sales on or after July 15, 2022

Transcend Inc. does business with its Customers under these General Terms and Conditions of Sale (“Terms”). In these Terms “we,” “our,” “us” and “Transcend” refer to Somnetics International, Inc. a Minnesota corporation which does business as Transcend Inc.  The term “Customer” shall mean any entity that is listed on any purchase order for the purchase of Products from Transcend (including, but not limited to, any order placed on our e-commerce website).  These Terms constitute an agreement between Transcend and Customer regarding the Products and Product Related Services.

1. Product: The term “Product” shall mean any medical devices and other products manufactured or sold (including accessories, consumables and spare parts) by Transcend. The term Product shall include all applicable manuals and other written instructions about any Product given by Transcend.  The term “Product Related Services” shall include without limitation all services rendered or advice given by Transcend or its representatives in relation to the sale of Products.  These Terms supersede those contained in any Customer purchase order, request for quotation, acceptance or other purchasing documents concerning any Product” which are inconsistent with, different from, or in addition to these Terms.
2. Applicability: These Terms shall be applicable to all purchases of Products by the Customer and all Product Related Services offered by Transcend to Customer unless they are explicitly altered in writing by the Parties.
3. Approval of Orders: Customer will place a purchase order via Transcend’s online store at MyTranscend.com unless otherwise agreed with Transcend (a “Purchase Order”). Customer Purchase Orders for Products are subject to acceptance by Transcend, including approval by Transcend’s Credit Department.  A Purchase Order will be accepted in any of the following ways: (a) express acceptance of the Purchase Order in writing or (b) shipment of the Products referred to in the Purchase Order.  Any statement in a Customer’s Purchase Order or other document, including any contrary terms or conditions, not expressly approved or acknowledged in writing by Transcend is not included in these Terms and any acceptance of a Purchase Order shall only be on these Terms.  All sales orders are subject to Product availability.  The Customer may not cancel or alter a Purchase Order once it has been accepted.
4. Credit: Transcend may (a) extend credit to qualified Customers after approval of credit application; or (b) reject, delay or cancel any order based on credit requirements, including failure to pay invoices when due. Transcend will not be bound by credit terms not confirmed in writing by Transcend. Invoices will be issued when Products ship. Customer may not take deductions or offsets unless Customer has complied with a written credit memorandum or other documentation from Transcend. If Customer’s check is returned because of insufficient funds or for any other reason, additional fees will be assessed.
5. Payment, Finance Charge, Costs of Collection: Payment must be made via ACH or check. ACH payments should be made via instructions on our invoice.  Checks should be mailed to our invoice address. Transcend’s invoice is past due if not fully paid within the stated payment terms. If Customer fails to timely pay an invoice, then, in addition to any other remedies allowed by law, Transcend reserves the right to charge Customer an additional monthly interest charge equal to one and one-half percent (1.5%) per month of all outstanding amounts due, or the maximum interest rate allowable under applicable law, whichever is lower, from the date such payment was due until the date paid in full.
6. Taxes: Prices are exclusive of taxes. Customer is responsible for all federal, state and local taxes, levies and assessments (including sales or use taxes) (collectively, Taxes) associated with the purchase of Products. Transcend will charge taxes as required by applicable law or regulation. If Customer provides Transcend with valid and complete tax exemption certificates, Transcend shall exclude qualifying taxes from the invoice.
7. Pricing, Changes and Cancellations: Customer shall be provided with confidential Transcend pricing information. Our prices for the Products are always exclusive of any freight cost.  Transcend may change prices on any Product at any time without prior notice, except for orders which have been accepted by Transcend before the change. Transcend may change prices for Products included in an accepted order by giving Customer prior notice. Customer may, as its sole remedy, cancel a pending order, to the extent not fulfilled, by giving Transcend written notice within ten (10) days of a price change notice. Customer requests for order changes and cancellations may be canceled at Transcend’s discretion. Transcend reserves the right to charge a restocking fee if the order has already been processed.
8. Shipping: Requests for specific shipping dates will be reasonably honored. Transcend will choose the carrier. Transcend may make partial shipments. Delay in shipment or delivery of any particular installment shall not relieve Customer of its obligation to accept remaining shipments. Transcend will accept requests for a proof of delivery (P.O.D.) up to sixty (60) days after the invoice date. TRANSCEND SHALL NOT BE LIABLE FOR ANY DAMAGES, WHETHER INCIDENTAL, CONSEQUENTIAL OR OTHERWISE, FOR FAILURE TO FILL ORDERS, DELAYS IN DELIVERY OR ANY ERROR IN FULFILLING ORDERS.
9. Title and Risk of Loss: Title and risk of loss passes from Transcend to Customer upon shipment from Transcend’s warehouse (FOB Origin).
10. Non-Exclusive Sales; Unauthorized Distribution: All sales by Transcend are non-exclusive. Unless authorized by Transcend in writing in advance: (a) Customer agrees not to resell, ship, or distribute Products to anyone other than patients; (b) not to purchase or exchange Transcend Products from any source other than Transcend; and (c) not to resell or distribute Transcend Products outside the U.S. The sale of Transcend Products in violation of this section voids Transcend’s written and implied warranties where permitted by law.
11. Relationship of the Parties: Customer and Transcend are independent contractors, and are not authorized to act as an agent of the other. Customer will indemnify, defend and hold harmless Transcend against any and all liability—including costs, expenses and reasonable attorneys’ fees—for injury, loss, claims or damages arising from the negligent operation, acts or omissions of Customer or its employees, agents and contractors.
12. Returns and Replacements: All sales are final. Customer must report any discrepancies (e.g., over shipments, under shipments, short shipments, misdelivery, damaged goods, duplicate orders, late shipments) within ten (10) days after receipt or Customer will be deemed to have accepted the Products as shipped. Customer discrepancy returns are subject to Inspection and approval by Transcend.

Other than discrepancy returns and warranty returns, all other returns will be subject to restocking fees in the amount of twenty percent (20%) of the invoice price of the returned Product.

The procedure for returns is as follows:

a) Request a returned goods authorization (RGA) number from Transcend’s Customer Service before returning the Product. When requesting an RGA, provide the Product serial number(s). When returning non-serialized Products, provide the part number(s) and at least one of the following: the original purchase order number; the Transcend confirmation number; or the invoice number.

b) Mark the RGA number clearly on the outside of all returned boxes and ship to Transcend freight prepaid. If Customer fails to do so, Transcend reserves the right to refuse the shipment and direct that the shipment be returned to Customer at Customer’s expense. The issuance of any credit for returned Product is subject to approval by Transcend

13. Handling of Products: 

1. 1. Customer shall transport, handle and store the Products with proper care and always in accordance with professional standards and the instructions of Transcend. Customer undertakes not to change the Products, remove or change any trademarks, names or any other markings concerning the Products or alter the Product’s packaging or repack the Products in non-approved non-Seller packaging.
   2. Customer shall, when marketing and selling the Products, not to give any information about the Products or make any warranties or representations as to the Products, its nature, or use that is contrary to or goes further or beyond the instructions, information, warranties or representations given by Transcend. The same applies when Customer is educating its customers about the use of the Products. Customer shall indemnify and hold Transcend harmless from any and all damages in the event Transcend suffers damage as a result of breach of these undertakings.
   3. Customer may not remove references to the capacity of Transcend as manufacturer or other references or instructions for use or serial numbers or distribute Products without such references and instructions for use.
   4. Customer acknowledges and agrees (a) not to sell or offer for Products on any third-party e-commerce platforms or marketplaces, and (b) to provide reasonable post-sales services to end users
   5. In the event that Customer sells or contemplates to sell Products through e-commerce, Customer shall conduct such e-commerce business under the name with which Customer purchases product from Transcend. If Customer conducts business through a pseudo name, Customer shall inform Transcend of such pseudo name.

14. Regulatory Compliance: Customer represents and warrants that Customer will abide by all applicable laws related to sale of the Products, including but not limited to verification of prescription or other required documentation, and will maintain all applicable licenses or certifications required by law. Customer further agrees to comply with all statutes, laws, regulations and instructions relating to: (a) storage and distribution of medical products, (b) medical device record-keeping requirements (including but not limited to collection of prescriptions); and (c) maintaining records of serial and or batch numbers of Products dispensed to patients. Customer further agrees to immediately notify Transcend of any circumstance that suggests that a Product, for any reason, (a) may have caused or contributed to a death or serious injury or (b) has malfunctioned and such malfunction would belikely to cause or contribute to a death or serious injury if the malfunction were to occur again. Specifically, Customer agrees to:
    1. promptly inform Transcend of any complaint of injury, safety, Product performance, or an adverse event involving Products;
    2. report to Transcend all complaints received from customers, including any written, electronic or oral communication, that alleges (i) deficiencies related to the identity, quality, durability, reliability, safety, effectiveness or performance of a Product or (ii) inadequacies in the labeling or instructions for use of a Product;
    3. maintain records of (i) name of the Product (ii) date the complaint was received (iii) serial and or lot numbers of Product (iv) name, address, and telephone number of the complainant and (v) nature of the complaint;
    4. follow Transcend’s instructions with respect to any recall, field action, upgrade or other safety action with respect to Products;
    5. in the event Company is unable to comply with subsection (c) (iii) above, provide Transcend, for the sole purpose of notification, with a complete list of names and addresses of all patients of the Product affected by a recall, field action, upgrade or other safety action; and
    6. sell the Products without any modifications to the Products, the Product labels or the instructions for use.

In order to ensure quality service and maintain record keeping requirements, Customer agrees to maintain the records required herein for a period of five (5) years.

15. Data Protection: Each Party agrees to comply with all privacy laws, rules and regulations that protect personal data and privacy including but not limited to the Health Insurance Portability and Accountability Act of 1996 (HIPAA).
16. Changes in Products and Policies: Transcend may add, change or stop selling any Product without notice. Customer shall have no claim for Transcend’s failure to sell the model, design or type of Products previously sold or for failure to modify Products previously sold.
17. Limited Warranty: The sole and exclusive warranty regarding each Product is the limited warranty found at MyTranscend.com. The limited warranty is extended exclusively to authorized Customers and their patients and is not transferable or extended to unauthorized purchasers or their customers. Any claim a Customer submits under Transcend’s limited warranty must be on behalf of the initial patient-user of the Transcend Product.
18. Disclaimer of Warranties: EXCEPT FOR THE LIMITED WARRANTY REFERENCED IN SECTION 14 ABOVE, TRANSCEND HEREBY DISCLAIMS AND EXCLUDES ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESSED OR IMPLIED, OF ANY TYPE WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, OR ANY REPRESENTATION OR WARRANTY AS TO THE DESIGN, CONDITION, QUALITY, CAPACITY, MATERIAL, EQUIPMENT OR WORKMANSHIP IN OR OF ANY TRANSCEND PRODUCT. TRANSCEND FURTHER DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT TRANSCEND PRODUCTS ARE COMPATIBLE WITH ANY COMBINATION OF NON-TRANSCEND PRODUCTS USED IN CONNECTION WITH THE TRANSCEND PRODUCTS.
19. Limitation of Liability: THE TOTAL LIABILITY OF TRANSCEND, IF ANY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIM OF ANY KIND WHATSOEVER, REGARDLESS OF LEGAL THEORY, WILL NOT BE GREATER THAN THE ACTUAL PURCHASE PRICE OF THE TRANSCEND PRODUCTS WITH RESPECT TO WHICH SUCH CLAIM IS MADE. ALSO, UNDER NO CIRCUMSTANCES WILL TRANSCEND BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES IN CONNECTION WITH THE TRANSCEND PRODUCTS, ANY ORDER FOR TRANSCEND PRODUCTS, THE FURNISHING OF EQUIPMENT, GOODS, PARTS OR SERVICES HEREUNDER, OR THE PERFORMANCE, USE OF, OR INABILITY TO USE ANY EQUIPMENT OR ANY OTHER GOODS, PARTS OR SERVICES, OR ANY OTHER MATTER RELATING TO THE FOREGOING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL OR EQUITABLE THEORY, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR COMPENSATION, REIMBURSEMENT OR LOSS OF PRESENT OR PROSPECTIVE PROFITS, EXPENDITURES, INVESTMENTS, COMMITMENTS, OR CLAIMS OF ANY THIRD PARTY, WHETHER MADE IN THE ESTABLISHMENT, DEVELOPMENT OR MAINTENANCE OF BUSINESS REPUTATION OR GOODWILL, COST OF CAPITAL OR ANY OTHER REASON WHATSOEVER. THIS LIMITATION WILL NOT AFFECT CUSTOMER’S RIGHT TO SEEK APPROPRIATE RELIEF ARISING FROM OR INCIDENT TO ANY DEATH, PERSONAL INJURY OR PROPERTY DAMAGE CONNECTED TO TRANSCEND’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR STRICT LIABILITY IMPOSED BY LAW.
20. Intellectual Property Ownership: “Intellectual Property” means patents (including utility patents), design patents, design rights, copyrights, rights in databases, trademarks, trade secrets, know-how, trade names, websites, domain name registrations, applied for, owned, used or claimed now or in the future by Transcend, its affiliates, subsidiaries or licensors. Customer agrees that it does not have any property interest in the Intellectual Property.  Beside the marketing and sale of Products according to the Terms, these Terms entail no license to or transfer of ownership of any Intellectual Property from Transcend to Customer, provided however that Transcend hereby grants to Customer a limited, revocable, non-exclusive, non-transferable license to use Transcend’s trademarks for the Products in connection with the marketing and sale of the Products in accordance with these Terms.
21. Force Majeure: Transcend and Customer will be excused from any default in their obligations hereunder, other than the payment of money due, resulting from any act or event beyond their reasonable control or responsibility, including, but not limited to, acts of God, accident, fire, flood, storm, riot, war, sabotage, explosion, strike, lockout, labor disturbance, national defense requirement, governmental action, law ordinance, rule or regulation, whether valid or invalid, inability to obtain or curtailment of electricity or other types of energy, raw material, labor, component products or transportation, failure of normal sources of supply, or any similar or different contingency that would make performance or timely performance commercially impracticable. The party relying on any of these acts or events of force majeure must give the other notice thereof promptly after it becomes known to that party. If any of these acts or events of force majeure exceed sixty (60) continuous or cumulative days within a quarter, then either party may, as its sole remedy, cancel outstanding orders to the extent not previously fulfilled by giving written notice. neither party will be liable for damages resulting from such cancelation.
22. Communications: Customer grants permission to Transcend to communicate with Customer by mail, email, text, telephone, or facsimile, for the purpose of providing Customer with information about Transcend’s Products, pricing and promotions. Customer also grants Transcend permission to monitor and record calls between Transcend and Customer for quality assurance and training.
23. Waiver: Either Transcend’s or Customer’s waiver of the other’s default hereunder will not in any way limit or affect that party’s right to enforce and compel strict compliance at any other time or with any other term or condition.
24. Default, Termination and Other Remedies: In addition to any other remedies otherwise available to Transcend, all of which are expressly reserved, Transcend may immediately terminate these Terms and accelerate any payment owed by Customer following an Event of Default. Upon any termination of these Terms, all rights and obligations of Customer and Transcend will cease except those rights and obligations that have accrued before the termination, including but not limited to payment of any amounts due. The following will constitute an Event of Default; (a) Customer’s breach, violation, or failure to perform any of its obligations under any agreement with Transcend; (b) Customer’s failure to comply with any applicable policy set forth by Transcend; (c) Customer’s insolvency, dissolution or merger with or acquisition by another entity; (d) Customer making an assignment for the benefit of creditors; or ceasing to do business as a going concern; (e) the instituting by or against Customer of any action of bankruptcy, reorganization, receivership, conservatorship or insolvency; or (f) Customer failing to pay any sum owed to Transcend upon acquisition of any assets or equity of another Transcend customer. Customer agrees to pay all costs and attorneys’ fees for collection, appeal, or execution of judgment.
25. Confidentiality: Transcend may disclose confidential information to Customer, including but not limited to invoice terms, Product pricing, and new product introduction. Customer will not use, publish or disclose, or cause anyone else to use, publish or disclose, confidential information without Transcend’s prior written consent except information subject to legal process or if Customer can demonstrate the information was already known to, independently developed by, or publicly available to Customer prior to Transcend’s disclosure. If disclosure is required by law, Customer agrees to provide prompt notice to Transcend before any disclosure.
26. Choice of Law; Jurisdiction; Venue: These Terms are the entire understanding and agreement between Customer and Transcend and supersede any prior oral or written agreements, representations, understandings or discussions between Customer and Transcend. These Terms shall be governed by and interpreted in accordance with the laws of the United States and the State of Minnesota, excluding choice of law. If any provision of these Terms is held invalid or unenforceable by any court, in whole or in part, that term or condition will be construed and enforced to the greatest extent possible and the validity of the remaining terms and conditions will not be affected. Any action or proceeding between the parties shall be brought in the state or federal court in Hennepin County, Minnesota. The parties submit to the exclusive jurisdiction and venue of the state and federal courts in Hennepin County, Minnesota for any action and agree that service of process may be effected by delivery to the address used for communications. The parties expressly waive (a) any right to a trial by jury in any and all actions and proceedings and (b) any right to participate in a class action or consolidated action regarding a dispute by joining a disputed claim with the disputed claim of any other person or entity or to assert a disputed claim in a representative capacity on behalf of anyone else in any lawsuit or other proceeding.
27. Exclusive Agreement: These Terms are the exclusive agreement between the parties relating to the subject matter hereof and supercede all prior agreements, communications or promises, whether written or oral, between the parties.