Terms and Conditions of Sale (U.S.)

1. Applicability. This Agreement governs the sale or use fee of the products that will be furnished by Pulmonx to Customer. This Agreement comprises the entire agreement between the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter hereof. Pulmonx will not be bound by, and specifically objects to, any term, condition or other provision which is different from or in addition to this Agreement which is proffered by Customer in any purchase order (“Order”), receipt, acceptance, confirmation, correspondence or otherwise unless Pulmonx specifically agrees to such provision in a writing signed by Pulmonx.
2. Delivery, Title and Risk of Loss. Customer acknowledges that all of Pulmonx’s intellectual property embedded in the Product(s) remain the property of Pulmonx. Delivery of the products will be FOB Destination, with freight, insurance and handling prepaid and added to the invoice. Title and risk of loss transfer to Customer upon Pulmonx’s delivery of the Products to the “ship to” portion of Customer’s Order (the “Delivery Location”). Pulmonx shall not be liable for any delays in transit. Shipping and delivery dates are estimates only, and time is not of the essence. Pulmonx may ship all the Products at one time or in portions. Pulmonx will have the right to determine the method of shipment and routing of the Products, unless Pulmonx agrees otherwise in writing.  Pulmonx reserves the right to refuse to ship the Products to third parties.  As collateral security for the payment of the purchase price of the Product(s), Customer hereby grants to Pulmonx a lien on and purchase money security interest in and to all of the right, title and interest of Customer in, to and under all purchased Product(s), 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.
3. Customer Obligations. Customer shall operate each Product (a) according to the operating instructions provided by Pulmonx, as may be amended from time to time and made available to Customer, and (b) in accordance with all applicable laws, ordinances and regulations.
4. Inspection and Rejection of Nonconforming Product(s). Customer shall inspect the Product(s) within five (5) business days of receipt (the “Inspection Period”). Customer will be deemed to have accepted the Product(s) unless Customer notifies Pulmonx in writing of any Nonconforming Product(s) (as defined below) during the Inspection Period and furnishes such written evidence or other documentation as required by Pulmonx. “Nonconforming Product(s)” means only the following: (i) the Product shipped is different than identified in the Order; or (ii) the Product’s label or packaging incorrectly identifies its contents. If Customer timely notifies Pulmonx of any Nonconforming Product(s), Pulmonx shall, in its sole discretion, (i) replace such Nonconforming Product(s) with conforming Product(s), or (ii) credit or refund the price for such Nonconforming Product(s), together with any reasonable shipping and handling expenses incurred by Customer in connection therewith. Customer shall ship the Nonconforming Product(s) to Pulmonx’s facility located at 700 Chesapeake Drive, Redwood City, CA 94063 or any other address that Pulmonx provides. If Pulmonx exercises its option to replace Nonconforming Product(s), Pulmonx shall, after receiving Customer’s shipment of Nonconforming Product(s), ship to Customer the replaced Product(s) to the Delivery Location. Customer acknowledges and agrees that the remedies set forth in this Section 4 are Customer’s exclusive remedies for the delivery of Nonconforming Product(s). Except as provided in this Section 4, all sales of Product(s) to Customer are made on a one-way basis and Customer has no right to return Product(s) purchased under this Agreement to Pulmonx.
5. Limited Warranty; Exclusive Remedies.
   1. Pulmonx warrants to Customer that each new Product delivered pursuant to this Agreement will materially conform to Pulmonx’s specifications in effect as of the date of manufacture and will be free from material defects in material and workmanship. The applicable warranty period for any Product(s) with an expiration date shall be the date of delivery through and ending on the date of expiration of such Product(s) indicated on the Product(s)’ packaging (the “Warranty Period”); provided, however, that the applicable Warranty Period for the Chartis Pulmonary Assessment System – Console is twenty-four (24) months from the date of its initial shipment to Customer.
   2. Pulmonx shall not be liable for a breach of the warranties set forth in Section 5.1 unless: (i) Customer gives written notice of the defective Product(s), as the case may be, reasonably described, to Pulmonx within five (5) business days of the time when Customer discovers or ought to have discovered the defect; (ii) if applicable, Pulmonx is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 5.1 to examine such Product(s) and Customer (if requested to do so by Pulmonx) returns such Product(s) to Pulmonx’s place of business at Pulmonx’s cost for the examination to take place there; and (iii) Pulmonx reasonably verifies Customer’s claim that the Product(s) are defective.
   3. Pulmonx shall not be liable for a breach of the warranty set forth in Section 5.1 if: (i) Customer makes any further use of such Product(s) after giving the notice specified in Section 5.2; (ii) the defect arises because Customer failed to follow Pulmonx’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Product(s); (iii) Customer alters or repairs such Product(s) without the prior written consent of Pulmonx; (iv) the defect arises because Customer moves the Product(s) from the Delivery Location; (v) repairs are made necessary by the effects of corrosion, erosion or wear and tear or non-normal use; (vi) Customer breaches Section 3 or Section 10; or (vii) with respect to Products(s) for which Customer has not made timely payment.
   4. Subject to Section 5.2 or Section 5.3, with respect to any such Product(s) during the Warranty Period, Pulmonx shall, in its sole discretion, either: (i) repair or replace such Product(s) (or the defective part) or (ii) credit or refund the price of such Product(s) at the pro rata price provided that, if Pulmonx so requests, Customer shall, at Pulmonx’s expense, return such Product(s) to Pulmonx. Product(s) that are repaired or replaced during the Warranty Period do not carry a new warranty period, but instead carry the unexpired portion of the original Warranty Period.
   5. THE REMEDIES SET FORTH IN SECTION 5.4 SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND PULMONX’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTION 5.1.
6. Discounts. Discounts and rebates received by Customer with respect to the Products under this Agreement are “discounts or other reductions in price” under the Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)(3)(A)). Consistent with the Anti-Kickback Statute and the discount safe harbor (42 C.F.R § 1001.952(h)), if Customer reports its costs on a cost report pursuant to applicable state or federal cost reporting requirements, Customer shall fully and accurately report such discounts and other reductions in price in the applicable cost report. Customer also shall provide all information about such discounts and rebates as requested by any federal or state agency. Pulmonx will provide Customer with sales and discount information to allow Customer to comply with this section, including sufficient rebate and pricing information to enable Customer to accurately report its actual costs for all purchases of Consumables made pursuant to this Agreement.
7. Term. In addition to any remedies that may be provided under this Agreement, Pulmonx may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (a) fails to pay any amount when due under this Agreement and such failure continues for ten (10) business days after Customer’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of this Agreement, in whole or in part; or (c) 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.
8. Payment Terms. Customer shall pay all invoiced amounts due to Pulmonx within forty-five (45) days of the date of Pulmonx’s invoice. Customer shall make all payments hereunder in U.S. dollars. Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Pulmonx for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Pulmonx does not waive by the exercise of any rights hereunder), Pulmonx shall be entitled to suspend the delivery of any Product(s) if Customer fails to pay any amounts when due hereunder and such failure continues for thirty (30) days following written notice thereof. Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Pulmonx, whether relating to Pulmonx’s breach, bankruptcy or otherwise. All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Customer. If Customer claims an exemption from any tax, it must provide copies of the basis of such exemption to Pulmonx, and Customer shall be responsible for all such charges, costs and taxes; provided, that, Customer shall not be responsible for any taxes imposed on, or with respect to, Pulmonx’s income, revenues, gross receipts, personnel or real or personal property or other assets.
9. Indemnification. Customer hereby agrees to indemnify and hold harmless Pulmonx from and against any and all claims, actions, suits, proceedings, costs, expenses, damages, and liabilities, including reasonable attorneys’ fees and expenses, arising out of Customer’s (a) negligent use of or use of the Product(s) not in accordance with the instructions for use; (b) willful misconduct; (c) other acts or omissions of Customer or its personnel, agents or representatives; or (d) breach of this Agreement.
10. Representations and Covenants. Customer represents, warrants and covenants that its execution, delivery and performance of this Agreement and the operation and use by Customer of the Product(s) will not: (a) violate any provision of any law, statute, rule or regulation or any order, writ, judgment, injunction, decree, determination or awards of any court, government agency or arbitrator presently in effect having applicability to Customer; (b) violate or contravene any provision of the articles or certificate of incorporation, bylaws or other organizational documents of Customer; (c) result in a breach of, conflict with, or constitute a default under any indenture, loan or credit agreement or any other agreement, lease or instrument to which Customer is a party or by which it or any of its properties may be bound, or result in the creation of any lien thereunder; or (d) require the consent or waiver by any landlord or other third party or require the waiver of any lien. Customer represents, warrants and covenants that Customer shall not disclose any protected health information (PHI) to Pulmonx. Customer represents, warrants and covenants that it shall not modify, translate or create derivative works of the Product(s) or reverse engineer, decompile, or disassemble the Product(s).
11. Insurance, Release. Customer understands that Pulmonx does not accept any responsibility for liability for any loss or damage associated with the Customer’s use of the Product(s). Customer hereby releases Pulmonx, its directors, officers, employees, agents and others acting on Pulmonx’s behalf, from all claims, and all liability or responsibility to Customer, and to anyone claiming through or under Customer, by way of subrogation or otherwise, for any loss or damage to persons (to the extent permitted by applicable law), Customer’s business or property caused by the negligence or other act or omission of Customer or any third party.
12. Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 5, PULMONX MAKES NO WARRANTIES PURSUANT TO THIS AGREEMENT. THE PRODUCT(S) ARE PROVIDED BY PULMONX ON AN “AS IS” BASIS. PULMONX DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, DIRECT AND INDIRECT, EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF SUITABILITY, WORKMANSHIP, ADEQUACY, DURABILITY, DESIGN, OPERATION OR CONDITION OF THE PRODUCT(S) OR ANY PART THEREOF, AND MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, TRADE USAGE OR OTHERWISE. PULMONX DOES NOT WARRANT THAT THE PRODUCT(S) WILL MEET THE REQUIREMENTS OF CUSTOMER OR THAT THE OPERATION OR USE OF THE PRODUCT(S) WILL BE UNINTERRUPTED OR ERROR FREE.
13. Limitation of Liability. IN NO EVENT SHALL PULMONX BE LIABLE UNDER OR AS A RESULT OF THIS AGREEMENT: (A) FOR ANY LOST PROFITS, LOSS OF BUSINESS, LOSS OF USE, LOSS OR CORRUPTION OF DATA OR THE LIKE, OR FOR ANY CLAIM OR DEMAND AGAINST CUSTOMER BY ANY THIRD PARTY; (B) FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSSES OR SIMILAR DAMAGES OR LOSSES; AND/OR (C) IN THE AGGREGATE FOR ANY DAMAGES OR LOSSES IN EXCESS OF AMOUNTS PAID BY CUSTOMER FOR THE PRODUCTS AND SERVICES SOLD UNDER THIS AGREEMENT. THE FOREGOING APPLIES WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY, STRICT LIABILITY OR ANY OTHER THEORY, EVEN IF PULMONX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY PROVISION CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
14. Confidential Information. All non-public, confidential or proprietary information of Pulmonx, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Pulmonx to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Pulmonx in writing. Upon Pulmonx’s request, Customer shall promptly return all documents and other materials received from Pulmonx. Pulmonx shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain through no fault of the Customer; (b) known to Customer at the time of disclosure; (c) rightfully obtained by Customer on a non-confidential basis from a third party; (d) independently developed by the receiving party prior to or independent of the disclosure; (e) disclosed under requirement of law or regulation; and (f) disclosed by the receiving party with the disclosing party’s prior written approval.
15. Force Majeure. Pulmonx shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Pulmonx including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
16. Dispute Resolution; Governing Law; Other Miscellaneous. This Agreement may be modified only in writing duly executed by both parties. If any provision of this Agreement is determined to be unenforceable, it shall be stricken from this Agreement, but such unenforceability shall not invalidate any other provisions of this Agreement. No waiver by Pulmonx of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Pulmonx. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. This Agreement is governed by the laws of the State of California without reference to its conflicts of law provisions. Any party bringing a legal action or proceeding against the other party arising out of or relating to this Agreement or the transactions it contemplates shall bring the legal action or proceeding in either the United States District Court for the Northern District of California or, if there is no federal subject matter jurisdiction, in any court of the State of California sitting in the County of San Mateo. Each party this Agreement consents to the exclusive jurisdiction of (a) the United States District Court for the Northern District of California and its appellate courts, and (b) any courts of the State of California sitting in the County of San Mateo and its appellate courts, for the purpose of all legal actions and proceedings arising out of or relating to this Agreement or the transactions it contemplates. Each party agrees that the exclusive choice of forum set forth in this Section 16 does not prohibit the enforcement of any judgment obtained in that forum or any other appropriate forum. Each party waives, to the fullest extent permitted by law, (x) any objection which it may now or later have to the laying of venue of any legal action or proceeding arising out of or relating to this Agreement or the transactions it contemplates brought in the United States District Court for the Northern District of California or, if there is no federal subject matter jurisdiction, any court of the State of California sitting in the County of San Mateo, and (y) any claim that any such legal action or proceeding brought in any such court has been brought in an inconvenient forum. Notwithstanding the foregoing, Pulmonx may seek injunctive and other equitable relief in any court of appropriate jurisdiction with respect to any alleged actual or alleged breach of Pulmonx’s intellectual property or proprietary rights. THE PARTIES HERETO WAIVE ALL RIGHTS TO A JURY TRIAL FOR ANY DISPUTES ARISING UNDER THIS AGREEMENT, INCLUDING DISPUTES AS TO WHETHER ATTORNEY’S FEES OR OTHER DAMAGES ARE DUE HEREUNDER. While any dispute is pending, Customer shall return the Product(s) to Pulmonx at Customer’s expense by a Pulmonx-approved courier. Unless otherwise specified herein, all notices hereunder shall be in writing and shall be delivered personally or by fax or mailed by registered or certified mail, first class, postage prepaid, to the parties hereto at their addresses specified on the Order, subject to the right of either party to change its address by written notice. Any communication required or permitted hereunder shall be deemed delivered upon personal delivery, and faxing (with fax confirmation sheet), or 48 hours after deposit in any official post box. Those Sections of this Agreement that by their terms are intended to survive expiration or termination of this Agreement shall survive. Without limiting the generality of the foregoing, the following Sections shall survive: Sections 1, 2, 3, 5.5, 6, 8, 9, 10, 11, 12, 13, 14 and 16. Termination or expiration of these terms does not release either party from any liability or obligation that, at the time of termination or expiration, has already accrued to the other party. All rights and remedies of Pulmonx under this Agreement shall be cumulative and not exhaustive.