Effective Date: August 5, 2022
1.01 Definitions. “Agreement” means these Terms together with the Order for sale of the Products accepted by Company and any other applicable agreement signed by Purchaser and a duly authorized representative of Company in connection with the sale of Products. “Company” means Sight Sciences, Inc. and its subsidiaries. “Products” means medical products for the treatment of glaucoma and any related equipment purchased by Purchaser from Company under this Agreement. “Purchaser” means any buyer of Products. “Order” means a separate purchase and sale agreement between the Company and Purchaser or a quotation issued by Company or a purchase order issued by Company or Purchaser, in each case in connection with the sale of Products to Purchaser. “Terms” means these Terms and Conditions of Sale.
1.02 Binding Effect. Company and Purchaser agree that the Agreement shall govern the sale of the Products, whether or not enclosed with the Products. Purchaser shall be deemed to have accepted these Terms if it does any of the following: (a) accepts these Terms in writing (including through the execution of an Order that references these Terms); (b) pays (in part or whole) for any Products; or (c) receives delivery of any Products and fails to return them within five (5) days following receipt thereof. Any term, condition, or other provision (including any prior or subsequent understanding, agreement, or trade custom) that is different from, inconsistent with or in addition to these Terms, whether in an Order, receipt, acceptance, confirmation, correspondence, or otherwise, shall not apply to the sale of Products and are hereby rejected, unless the parties expressly agree otherwise in a writing signed by both parties.
2. Orders, Acceptance, and Delivery.
2.01 Orders. All Orders for the Products, whether solicited by Company or issued by Purchaser, are offers by Purchaser to purchase the Products.
2.02 Acceptance. Company reserves the right to accept or reject each such offer. Company’s acceptance of each such offer can be in writing, by electronic record delivered to Purchaser, or by Product delivery, and is conditional on Purchaser’s unqualified assent to these Terms in lieu of any terms in Purchaser’s offer or other communications.
2.03 Delivery. Company will make commercially reasonable efforts to meet any delivery dates scheduled or acknowledged in connection with accepted Order but will not be liable for any failure to meet such dates. Company will deliver all Products Ex Works point of origin (Incoterms 2022), unless the parties specifically agree otherwise in a writing signed by both parties. Unless otherwise agreed by the parties, delivery shall be deemed to occur when the Products are placed at Purchaser’s disposal at Company’s place of business or such other shipping point as Company may reasonably select. Except with respect to any consignment products (which shall be the subject of a separate agreement signed by both parties), all title, risk of loss, and risk of damage for the Products shall pass to Purchaser at delivery.
2.04 Packing and Shipment. Company shall select the carrier unless Purchaser indicates a preferred carrier and provides Company with its account information for such carrier; provided, however, if Company pays the carrier, Purchaser shall promptly reimburse Company for all costs related to such shipment, including, but not limited to, all shipping charges, freight insurance premiums, inspection fees, assessments, other costs and Company’s reasonable shipping and handling charges. Unless otherwise requested by Purchaser and agreed in writing by Company, all Products will be packaged and shipped in the manner deemed suitable by Company.
3. Product or Order Changes.
3.01 Product Changes. Company may, without notice, make changes in design, additions to, or improvements in Products without liability or obligation to install such change, addition, or improvement in any Product previously manufactured. Company may discontinue or withdraw any Product without notice. Company may revise or modify Product information without notice.
3.02 Order Changes. Any item additions, quantity changes, or other material changes made to accepted Orders will generate a new acknowledgment for the entire order and a new scheduled delivery date. If Purchaser requests that Company hold or cancel delivery of Products previously ordered, Company may require payment and Purchaser shall pay for such Products based upon the original anticipated delivery date.
4. Prices and Payment.
4.01 Prices. Unless the parties specifically agree otherwise in a writing signed by both parties, the purchase prices for the Products shall be as specified in the Order as agreed to by the Company. Acceptance by Company of any Order does not obligate Company to accept any future orders for Products, and Company reserves the right to increase the purchase prices for the Products with sixty (60) days’ prior written notice to Purchaser.
4.02 Taxes. The prices payable under Section 4.01 do not include sales, goods and services, value-added, or other taxes. Except where the law provides otherwise, Purchaser shall be responsible for, and shall pay or reimburse Company for, all such taxes, duties, assessments, and other governmental charges, however designated, on account of the sale of any Product delivered hereunder. If applicable, Purchaser shall provide to Company a tax exemption certificate acceptable to Company and to the applicable taxing authorities. Any duties and costs incurred importing or exporting Products into any countries shall be the sole responsibility of Purchaser.
4.03 Payment. Company may invoice for all amounts due for the Products as of the date of delivery of the Products. Purchaser shall pay for all Products in full within thirty (30) days from the date of invoice therefor, unless the parties specifically agree otherwise in a writing signed by both parties (the “Due Date”). All amounts payable under this Agreement are denominated and shall be paid in United States dollars.
4.04 Late Payments. If Purchaser fails to pay any invoices in full on or before the Due Date, Company shall have the right to assess interest on unpaid balances at the lesser of 1.5% per month or the maximum rate permitted by law, for each month or fraction thereof, until paid in full. In addition, Purchaser agrees to pay Company’s reasonable attorneys’ fees and other costs incurred in collection of any amounts not paid on or before the Due Date, regardless of whether litigation or other proceedings have been commenced.
4.05 Disputed Charges. If Purchaser objects to or otherwise disputes any charges set forth in an invoice, Purchaser must provide to Company a documented claim regarding the disputed amount within thirty (30) days of the invoice date. Any invoice to which Purchaser has not objected within such 30-day period shall be deemed irrevocably accepted and all claims by Purchaser regarding disputed charges not submitted within such 30-day period are deemed waived. Upon receipt of any objection, Company will promptly investigate such objection and notify Purchaser of the results of its investigation. Payment of any amounts that Company determines to be owed as a result of its investigation shall be made within fifteen (15) days after notice to Purchaser. Purchaser is required to pay all invoices to which no objection has been made regardless of the existence of disputes relating to other invoices, and Purchaser is not entitled to make setoffs with respect to amounts owed to Company.
4.06 Purchaser’s Financial Condition. If Company determines that Purchaser’s financial condition or any other circumstances cause Company to be insecure with respect to Purchaser’s performance of any obligation under this Agreement or if Purchaser fails to comply with any terms of this Agreement, Company may, without liability, accelerate and demand immediate payment of any amounts owed Company, suspend performance, or cancel any accepted order, including any remaining installments of multiple installment orders.
4.07 Discount Safe Harbor. The Parties agree that, if applicable, any discounted pricing provided by Company hereunder may constitute a “discount or other reduction in price” under Section 1128B(b)(3)(A) of the Social Security Act, 42 U.S.C. §1320a-7b(b)(3)(A). Purchaser is responsible for reporting and/or providing accurate information on all claims for reimbursement, including any and all discounts or price reductions, to reimbursing agencies (including Medicare and Medicaid) and other entities in accordance with all applicable laws and regulations, including, without limitation, 42 C.F.R. §1001.952(h). Company shall refrain from taking any actions that will impede Purchaser from meeting its obligations under 42 C.F.R. §1001.952. In the event that any Products sold pursuant to this Agreement are sold at a discount, Company shall fully and accurately report such discount on the invoice or statement submitted to Purchaser. If the value of the discount is not known at the time of the sale, Company shall fully and accurately disclose the existence of a discount program on the invoice or statement and, when the value of the discount becomes known, provide Purchaser with documentation of the calculation of the discount identifying the specific goods or services purchased to which the discount will or has been applied. The Parties hereby acknowledge and agree that pricing under this Agreement is the result of a bona fide, arm’s-length negotiation and, to the best of the Parties’ knowledge, represents a commercially reasonable and fair market value discount pricing for the Products.
5. Inspection; Return of Products.
5.01 Inspection by Purchaser. Purchaser shall inspect each shipment of Products promptly upon arrival and promptly notify Company in writing of any shortages, erroneous shipments, or other failure to conform to the specifications of this Agreement that is reasonably discoverable upon arrival. In any event, Purchaser shall notify Company, within thirty (30) days from the receipt of any Products, of any defect pertaining to the Products or other failure to conform to the specifications of this Agreement. Purchaser’s failure to provide notice within such time period and/or Purchaser’s failure to allow Company a reasonable opportunity to inspect such Products to verify any alleged nonconformity shall constitute an irrevocable acceptance of the Products and a waiver of any claims relating to any such nonconformity.
5.02 Return Authorization. Written authorization is required prior to returning any Product. Purchaser may return Product in compliance with the Company’s Product return procedures as communicated to Purchaser.
5.03 Credit for Returns. If Company grants return authorization, credit will be issued as follows: for Products authorized for return, Purchaser will receive credit for the amount paid by Purchaser for such Product; provided, however, that any Product that has been defaced in any way will receive such credit less the greater of a 10% processing charge or the cost to Company to return the Product to usable condition. The Company is responsible for the transportation costs of any returned Products. All Products returned to Company for replacement shall become Company’s property.
6. Limited Warranties and Liability.
6.01 Limited Warranty to Purchaser. Company warrants to Purchaser that for one (1) year from the date of delivery to Purchaser, the Products will conform to the specifications therefor provided by Company to Purchaser and will be free from defects in materials and workmanship.
6.02 Disclaimer and Release. THE WARRANTIES SET FORTH IN THIS SECTION 6 ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND PURCHASER HEREBY WAIVES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE PRODUCTS AND ANY OTHER GOODS OR SERVICES DELIVERED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO: (1) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND (2) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. For the avoidance of doubt, except as otherwise set forth in this Section 6, descriptions and specifications included in any literature or documentation published or provided by Company are intended as general descriptions and shall not constitute express warranties made by Company. In the event that Company provides any technical advice, training, or support with respect to the Products, such advice, training, and support is provided without any warranties and, to the extent permitted by applicable law, Company shall have no liability whatsoever in connection with such advice, training, and support.
6.03 Implied Warranties. This Agreement may be subject to laws in the territories applicable to the sale of the Products by Company to Purchaser (the “Territories”), which impose implied warranties, conditions, or obligations that cannot be excluded, restricted, or modified (or can be excluded, restricted, or modified only to a limited extent). To the greatest extent allowed by such laws, the provisions of Sections 6.02 and 6.04 and Section 7 shall apply.
6.04 Sole Remedies. Except to the extent prohibited by applicable law, Company’s entire liability, and Purchaser’s sole and exclusive remedies, for breach of the warranties in Section 6.1 shall be limited to either (in Company’s sole discretion): (1) the correction of the defect that caused the breach of warranty; or (2) the replacement of the defective Product. Company will have no obligations under this Section 6 if the breach of warranty is: (1) reported to Company after the conclusion of the applicable warranty period; or (2) caused by abuse, misuse, alteration, neglect, accidental damage or unauthorized repair or modification of the Product, or the storage or use of the Product other than in accordance with the applicable documentation or instructions for storage and use provided by Company or other than in accordance with applicable regulatory requirements. Replacement or repair of the Product does not extend its warranty period beyond the original warranty expiration date.
7. Limitation of Liability.
7.01 EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL (A) COMPANY HAVE ANY OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (INCLUDING ACTIVE, PASSIVE, OR IMPUTED NEGLIGENCE, STRICT LIABILITY, OR PRODUCT LIABILITY) OR OTHERWISE, FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR LOSS OF USE, LOSS OF REVENUE, LOSS OF BUSINESS, LOST PROFIT, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH ANY PRODUCT OR OTHER GOODS OR SERVICES FURNISHED UNDER THIS AGREEMENT, REGARDLESS OF WHETHER OR NOT COMPANY WAS AWARE OF THE POSSIBILITY OF THE SAME (OTHER THAN ARISING FROM COMPANY’S WILLFUL MISCONDUCT); AND (B) COMPANY’S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT, PRODUCTS, AND ANY RELATED SERVICES EXCEED THE TOTAL AMOUNTS ACTUALLY RECEIVED BY COMPANY FROM PURCHASER DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. PURCHASER ACKNOWLEDGES THAT COMPANY HAS SET ITS PRICES AND AGREED TO SELL PRODUCTS TO PURCHASER IN RELIANCE UPON THE LIMITATIONS OF LIABILITY, DISCLAIMER OF WARRANTIES, EXCLUSION OF DAMAGES AND EXCLUSIVE REMEDIES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH COMPANY WOULD NOT HAVE AGREED TO SELL PRODUCTS TO PURCHASER. PURCHASER AGREES THAT SUCH PROVISIONS SHALL SURVIVE AND APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.
8. Compliance with Laws; Indemnity.
8.01 Compliance with Laws. Each party covenants and agrees that it shall comply with all applicable federal, state, and local laws, regulations, or ordinances, including, with respect to Purchaser, those relating to the use or operation of the Products.
8.02 Indemnity. Each party shall indemnify and hold the other party (and its affiliates) harmless for all third-party claims, demands, damages, costs (including reasonable attorneys’ fees and court costs), fines, penalties, and all other expenses arising from the indemnifying party’s breach of this Agreement.
9. Reporting, Recordkeeping, and Recall.
9.01 Reporting and Recordkeeping. Company and Purchaser agree to provide to each other, upon request, any information reasonably necessary for the other to comply with any applicable governmental reporting or recordkeeping requirements, including, but not limited to, the United States Food and Drug Administration’s Medical Device Reporting Regulations and all similar laws or regulations insofar as they are applicable where the Products are used. When requesting such information, the requesting party shall inform the other what information is required for these purposes, and, promptly after being made aware of any such required information, the recipient of the request shall supply the other with responsive information necessary to enable the requesting party to comply with such requirements. Purchaser also agrees to provide to Company all information that may be required by law or regulation regarding whether any Product(s) may have caused or contributed to the death or serious injury of an individual or has malfunctioned, and whether the Product(s) would be likely to cause or contribute to death or serious injury of another if the malfunction were to recur.
9.02 Recalls. In the event of a Product recall, Purchaser shall cooperate with Company in conducting such recall.
9.03 FDA Reporting. If Purchaser files with the U.S. Food and Drug Administration (“FDA”) an FDA Form 3500A or a similar form or medical device report under the Safe Medical Devices Act of 1990, or any similar statute or regulation, with respect to the Products, then Purchaser shall simultaneously provide a copy of the form or report to Sight Sciences, attn: Quality Assurance: 4040 Campbell Avenue, Suite 100, Menlo Park, CA 94025.
10.01 Liability Insurance. Company shall maintain Products Liability insurance written on a claims-made basis with minimum limits of Two Million Dollars ($2,000,000) per occurrence and Two Million Dollars ($2,000,000) annual aggregate. If requested by Purchaser, Company shall deliver to Purchaser current certificates of insurance for the required forms and amounts of insurance coverage.
11.01 Notices. All notices required or permitted by this Agreement shall be in writing and shall be delivered to the other party: (i) in person; (ii) by certified or registered mail, return receipt requested, postage prepaid; or (iii) by a reputable national or regional courier with tracking capabilities, postage prepaid. Such notices shall be delivered to the addresses set forth by each party in this Agreement or to such other address as either party may designate in writing pursuant to this Section 11.01. All notices shall be deemed effective upon sending in accordance with this paragraph.
11.02 Additional Restrictions. Federal law restricts sale of Products for prescription use to licensed physicians only. Purchaser acknowledges familiarity with, and agrees to comply with, the Safe Medical Devices Act of 1990, including, without limitation, its reporting requirements imposed on device users, relating to use of the Products. Purchaser shall cause the Products to be used only in strict compliance with the instructions for use and other protocols, directions and guidelines for handling, storage, use, disposal and other topics that are specified by Company, including as specified in Company’s website from time to time, and only in connection with properly obtained informed consent of the patients as may be required or advisable under applicable law or professional practices. Purchaser warrants that Purchaser will use the Products directly and further agrees that the Products may not be marketed, distributed, resold or exported by Purchaser for any purpose.
11.03 Debarment. Purchaser represents and warrants that neither it nor any of its current directors, officers, employees, contractors or agents: (i) is currently excluded, debarred, or otherwise ineligible to participate in the Federal Healthcare Programs; (ii) has been convicted of a criminal offense related to the provision of healthcare items or services during the last five (5) years; or (iii) has been excluded debarred, or otherwise declared ineligible to participate, during the last five (5) years in the Federal Healthcare Programs. If Purchaser or any of its directors, officers, employees, contractors or agents is excluded from participation under any Federal Healthcare Program during the Term of the Agreement, then it shall promptly notify the Company, and the Company shall have the option to terminate the Agreement without penalty.
11.04 Proprietary Information and Intellectual Property. The information and material contained in this Agreement or that Purchaser otherwise obtains in connection herewith is Company’s proprietary and confidential information and is made available to Purchaser in confidence and with the condition that it will not be copied or otherwise reproduced and will not be used or disclosed to anyone outside Purchaser’s company, except as authorized in writing by Company. The sale of the Products shall not confer upon Purchaser any license to manufacture or sell under any patents or proprietary rights owned or controlled by Company, its subsidiaries, affiliates, or suppliers. Any and all drawings, tooling, equipment, procedures, data, engineering changes, specifications, and documentation made, acquired, used or supplied by Company in connection with any Product shall be and remain the exclusive property of Company, and Company owns all intellectual property rights in the Products. Purchaser acknowledges that the Products contain and embody trade secrets belonging to Company and that this Agreement does not entitle Purchaser to any right to, and Purchaser shall not unless such restriction is not permitted under applicable law, reverse engineer the Products sold hereunder. Sight Sciences, OMNI® Surgical System and any other of Company’s trademarked Product names are trademarks owned by Company and may not be used without Company’s prior written consent.
11.05 Excused Performance. Neither party will be responsible for or be considered to be in breach of or default under this Agreement on account of any cause beyond such party’s reasonable control or not occasioned by such party’s fault or negligence, including but not limited to, acts of God, war, terrorism, sabotage, civil commotion, pandemic, governmental action, fire, storm, flood, unusually severe weather, casualty, explosion, strike, walkout, other industrial disturbance, inability to procure materials, components, or transportation from usual sources, unforeseen operating or shipping difficulties, or any other cause beyond the party’s control. In the event Company, due to a supply constraint, is unable to fulfill Purchaser’s accepted order(s) and the orders of other parties to which Company is committed to supply, Company will allocate supply among its customers, in its sole discretion, based on outstanding firm purchase obligations from Purchaser and the other parties that Company is obligated to supply. Such allocation will be Company’s sole obligation and Purchaser’s sole remedy for delivery delays and delivery shortages during a supply constraint period.
11.06 No Waiver. No failure or delay by any party hereto in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
11.07 Assignment. Purchaser may not assign (directly or indirectly, by operation of law or otherwise) or delegate this Agreement or its rights or obligations under this Agreement without written consent of Company. Company may freely assign and delegate this Agreement, and this Agreement shall bind and inure to the benefit of Company’s successors and assigns, including without limitation, any entity into which Company shall merge or consolidate.
11.08 Amendments. No amendment, modification, or waiver of this Agreement will be valid unless set forth in a written instrument signed by both parties. Company reserves the right to further modify this Agreement from time to time either upon written notification to Purchaser or by posting any changes on the Company’s website with the most current Terms on the Company’s website and the effective date of these Terms to be at the time the Purchaser thereafter places a Purchase Order. Purchaser shall be deemed to have accepted these terms and any modified terms upon Purchaser by placing a purchase order with Company by any method after the applicable effective date.
11.09 Severability. In the event any one or more of the provisions contained in this Agreement is deemed illegal or unenforceable, such provision (a) shall be automatically construed and adjusted in a manner which enables it to be valid and enforced to the extent permitted by applicable law and which most nearly effects the parties’ intent in entering into this Agreement, and (b) shall not affect the validity and enforceability of any other provision of this Agreement.
11.10 Governing Law. This Agreement shall be governed by the laws of the State of California without regard to conflict of law rules. Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction and venue of the state courts within the County of San Francisco, California and the federal courts of the Northern District of the State of California, and each party hereby consents to personal jurisdiction in such forum, for any actions, suits or proceedings arising out of or relating to this Agreement (and agrees not to commence any action, suit or proceeding relating thereto except in such courts). Notwithstanding the foregoing, nothing in this Agreement will prevent Company from pursuing an injunctive relief or filing any action to recover amounts owed to Company by Purchaser in any court having jurisdiction over Purchaser.