Terms & Conditions
ALL SALES OF PRODUCTS BY INOGEN INC. (“INOGEN”) TO CUSTOMER AND CUSTOMER’S USE THEREOF ARE EXPRESSLY CONDITIONED ON CUSTOMER’S ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS, AND ACCEPTANCE OF THE PRODUCT BY CUSTOMER IS AN ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS.
“CUSTOMER” SHALL REFER TO THE PURCHASER OF PRODUCT DIRECTLY FROM INOGEN
1. Orders: Orders for products sold by Inogen to Customer (“Products”) may be placed with Inogen, via Inogen’s website or with an Inogen Client Services Representative at 877-446-6436. No orders shall be binding upon Inogen unless and until accepted by Inogen in writing, under these terms and conditions, and Inogen shall have no liability to Customer with respect to orders that are not accepted.
2. Prices: Inogen reserves the right to change prices without notice; however, prices in effect at the time of order acceptance will prevail. Written quotations are valid for thirty (30) days unless otherwise noted. Orders of $500 or greater will receive complimentary ground shipping within the USA. Customers wishing to expedite shipment of orders of $500 or greater will be billed freight charges for the difference between ground and expedited transport. Shipping charges and all applicable taxes, duties, customs and fees will be added to each invoice and shall be payable by Customer. All insurance expenses for delivery of Products shall be borne by the Customer. All amounts due shall be paid in U.S. dollars.
3. Terms: Unless otherwise noted, Inogen accepts credit cards, wire transfers, money orders, ACH transfers, and certified bank checks only and title to Products and risk of loss shall pass to Customer upon delivery of Products to the carrier at the point of shipment. Payment is due at time of order. If Inogen employs any legal process to recover any amount due and payable from Customer under the terms of these terms and conditions, Customer shall pay all costs of collection and reasonable attorney’s fees.
4. Inspection and Acceptance and Product Changes and Substitutions
4.1 Inspection and Acceptance: It is Customer’s responsibility to inspect all Products promptly upon receipt for damage attributable to the carrier and to make claim directly to the carrier for such damage. The furnishing by Inogen of a Product to Customer shall constitute acceptance of that Product unless written notice of shipping damage or quantity is received by Inogen within ten (10) business days of delivery to Customer’s designated site, unless otherwise expressly agreed to by Inogen.
4.2 Product Changes and Substitutions: Inogen reserves the right (a) to make changes to Products without notice, and without any obligation to incorporate those changes in any Products previously delivered to Customer and (b) to ship to Customer the most current Product regardless of catalog description, if applicable.
5. Returns; Repairs or Replacements Beyond Warranty
5.1 Returns: Product returns will not be accepted by Inogen unless Inogen’s written authorization has been obtained in advance in the form of a Return Material Authorization (“RMA”) number, and the items are received by Inogen in their original condition. When returning Product, Customer is required to include a copy of the original invoice or packing slip to ensure prompt issuing of credits. The RMA number must be written on the documents enclosed and on the outside of the shipping box. Customer is granted a 30-day risk-free trial period from date of delivery; subject to other conditions contained herein. During this period, Customer may return Product for a full credit equal to the invoiced product price. To be eligible for a full credit equal to the invoice price, Customer must contact Inogen within 30 days of the date of delivery to initiate the RMA process. Once the RMA is processed, Customer has 7 days to ship the product back to Inogen for a full credit. If the RMA was initiated within 30 days of the date of delivery, but the product was not shipped by Customer within 7 days of the generation of the RMA, then the credit may be subject to a $400 restocking fee. No return will be authorized after 30 days from the date of delivery. Accessories are not eligible for a return for credit unless purchased and returned along with an eligible Inogen system. The returned Product credit, minus any applicable restocking fee, will be paid within 10 business days once Inogen receives the Product back and the Product has been inspected to confirm all components are returned. If there are missing components, a partial credit may be given.
5.2 Repairs or Replacements Beyond Warranty: For Products returned for repair or replacement that are not covered under Product warranty, Customer shall contact Inogen for instructions and assistance. Products may only be returned by Customer to a designated repair facility, when accompanied by an RMA number issued by Inogen. Freight expenses for Products returned by Customer will be paid by Customer. Customer shall pay for freight cost incurred for shipment back to Customer for Products repaired or replaced outside of warranty. Inogen or Inogen’s third party contractor’s standard repair charges are the Customer’s responsibility in addition to all shipping expenses. Assemblies replaced become the property of Inogen.
6. Limited Warranty; Out of Box Product Failure; Other Product Failure; Exclusions; Delinquent Accounts
6.1 Limited Warranty: The Product is warranted by Inogen to be free from defects in materials and workmanship under normal use and service and when correctly maintained for the time period set out in the warranty statement provided with the Product, which period shall begin on the Original Shipment Date. As used herein, “Original Shipment Date” means the original date of shipment of the Product by Inogen to Customer. The warranties hereunder are granted by Inogen only to the original Customer of the Products and are non-transferable. Customer’s original purchase receipt for the Products and proof of identity are required for the limited warranties hereunder to be effective. For the limited warranty set forth herein to be effective, Customer shall inspect each Product within two (2) days of delivery and before such Product is put to use. Customer agrees that the warranties provided by Inogen with respect to the Product are subject to use of the Product in accordance with Inogen’s instructions as provided and that failure to do so shall void the warranties. Inogen’s sole liability and Customer’s sole and exclusive remedy arising out of or relating to the Products, including for a breach of warranty, is limited to, at Inogen’s sole option, repair or replacement of the Product or part thereof which is returned at Customer’s expense to Inogen. This warranty shall apply only if Customer notifies Inogen in writing of the defective Product promptly after the discovery of the defect and within the warranty period. Products may be returned only by Customer and only when accompanied by an RMA reference number issued by Inogen. Inogen will not be responsible for any alleged breach of warranty for which Inogen determines to have arisen from a cause not covered by this warranty. Inogen shall make the final determination as to the existence and/or cause of any alleged defect.
6.2 Out of Box Product Failure: For Product that does not meet the limited warranty herein within the first ninety (90) days of the Original Shipment Date for the Product (“Out of Box Period”), Customer shall contact Inogen to obtain an RMA number. Inogen will ship a replacement Product (which solely at Inogen’s discretion will be a new Product or a repaired Product built to a new specification and warranted as new) to Customer in advance of receiving the failed Product. Inogen will cover the shipping cost of the replacement Product to the Customer as well as return shipment of the failed Product to Inogen. Customer will not be charged for the replacement Product provided Customer returns the failed Product to Inogen within ten (10) business days and Inogen determines that such Product is covered by the limited warranty hereunder. If failed Product is not received within ten (10) business days from issuance of the RMA or Inogen determines that the Product is not covered by the limited warranty hereunder, Inogen will invoice Customer for the list price of the replacement Product due and payable by Customer upon receipt.
6.3 Other Product Failure: For Product that does not meet the limited warranty herein after the Out of Box Period, Customer shall contact Inogen for an RMA number and return Product to Inogen, at Customer’s risk and expense. Inogen shall examine the Product and, if the Product is covered by the limited warranty hereunder, repair or replace the Product within a reasonable time, returning the Product to Customer at Customer’s risk and expense. Customer may be offered expedited replacement service in lieu of repair at Inogen’s discretion. Contact Inogen Client Services for more information.
6.4 Exclusions: Products, or parts of Products, which have been subject to abuse, misuse, accident, alteration, neglect, negligence, improper operation, unusual physical, thermal or electrical stress, Acts of God or other acts not within the control of Inogen, or unauthorized installation, repair or modification are not covered by warranty and Inogen shall have no obligation with respect to such Products or parts of Products. If Inogen determines that the Product is not covered by the limited warranty, then Customer shall pay Inogen the charges for repair or replacement of the Product in addition to all shipping expenses. The limited warranty shall not apply to (a) normal routine service items (such as filters, etc.); (b) disposable items (such as nasal cannulas, nasal pillows, etc.); (c) use of the Product with components, accessories or parts other than those expressly approved by Inogen as discussed in the Product user manual, or (d) defects caused by effects of normal wear and tear. THE LIMITED WARRANTY SET FORTH HEREIN AND IN THE WARRANTY STATEMENT PROVIDED WITH THE PRODUCT IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO REPRESENTATION OR STATEMENT OF INOGEN MAY CHANGE OR ALTER THIS LIMITED WARRANTY, UNLESS AGREED TO AND AUTHORIZED IN WRITING BY INOGEN.
6.5 Delinquent Accounts: If Customer’s account becomes delinquent, Inogen reserves the right to not allow advance replacements and may only perform repair RMAs to limit Inogen’s exposure. An account is considered to be delinquent if there is any outstanding invoice which is 60 days past due.
7. Limitations of Liability and Force Majeure
7.1 Limitation of Liability: Inogen shall not be liable for any commercial losses, loss of revenues or profits, loss of goodwill, inconvenience, or exemplary, special, incidental, indirect, consequential or punitive damages whatsoever, or claims of third parties, regardless of the form of any claim, whether in contract or tort, whether from breach of this agreement, or defective equipment, or loss of data or from any other use, even if Inogen has been advised or should be aware of the possibility of such damage. Inogen’s liability for loss or damages shall not exceed the purchase price paid by Customer for the particular Product giving rise to such liability.
7.2 Force Majeure: Inogen shall not be responsible for delays or failures in its performance resulting from Acts of God, war, riot, fire, explosion, accident, flood, sabotage, inability to obtain fuel, power, raw material or machinery, governmental laws, regulations, or labor trouble, strike, lockout or injunction, acts or omissions beyond Inogen’s control, including delays of suppliers or technical failure. If any such delay or failure occurs, Inogen may allocate Product among Inogen’s Customers at its sole discretion.
8. Resellers Agreement; Intellectual Property; and Indemnification
8.1 Support; Resale; and International Resale: Customer agrees that the Products are for use by Customer only. Customer acknowledges that some Products purchased from Inogen are medical devices regulated by the Food and Drug Administration (“FDA”). Sale or rental in the United States of such Products require a medical prescription from an authorized medical authority. Customer agrees that it will not sell or transfer the Products to any other person. Customer agrees that it will not sell, export, or re-export, Products to any third party in any country other than the Customer’s domestic country, unless given written permission to do so by Inogen and unless Customer first obtains all appropriate U.S. and foreign government licenses and permissions. Customer agrees to comply with all state, federal, and foreign government laws and regulations governing the provision of medical devices or home oxygen. By accepting these Products, the Customer certifies it is and shall use the Products in full compliance with all applicable laws and regulations, including all state and federal regulations.
8.2 Intellectual Property: Inogen owns or licenses all right, title and interest in and to the Product trademarks, and other identifying marks and any associated goodwill (“Trademarks”). Inogen does not grant and The Products are offered for sale and are sold by Inogen subject in every case to the condition that such sale does not convey any license, expressly or by implication, to manufacture, duplicate, or otherwise copy the Products.
8.3 Indemnification: Customer shall defend, indemnify, and hold harmless Inogen from and against any liability, damage, loss, or expense (including reasonable attorneys’ fees and expenses of litigation) in connection with any claims, suits, or proceedings arising out of or relating to the use or other exploitation of the Products, unless proximately caused by the sole gross negligence or willful misconduct of Inogen.
9. Governing Law; Notices; Arbitration; Waiver; Assignment; and Entire Agreement and Amendments
9.1 Governing Law: The validity, interpretation, and performance of these terms and conditions shall be governed by and construed under the applicable laws of the State of California as if performed wholly within the state and without giving effect of the principles of conflict laws.
9.2 Notices: All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, facsimile or by registered or certified mail (postage prepaid, return receipt requested) to the other party at, in the case of Customer, the Customer’s billing address on record and, in the case of Inogen, at 600 Shiloh Road, Plano, TX 75074.
9.3 Arbitration: Except as provided otherwise herein, all disputes between the parties hereto shall be determined solely and exclusively by arbitration under, and in accordance with the rules then in effect of, the American Arbitration Association, or any successors thereto (“AAA”), in Santa Barbara County, California, unless the parties otherwise agree in writing. The parties shall jointly select an arbitrator. In the event the parties fail to agree upon an arbitrator within ten (10) days, then Inogen shall select an arbitrator and Customer shall select an arbitrator and such arbitrators shall then select a third arbitrator to serve as the sole arbitrator, provided that if either Inogen or Customer, in such event, fails to select an arbitrator within seven (7) days, such arbitrator shall be selected by the AAA upon application of either Inogen or Customer. Judgment upon the award of the agreed upon arbitrator or the so chosen third arbitrator, as the case may be, shall be binding and shall be entered into by a court of competent jurisdiction.
9.4 Waiver: The failure by Inogen to enforce at any time any of the provisions herein, or to require at any time the performance by Customer of any of the provisions herein, will not in any way be construed as a waiver of such provisions.
9.5 Assignment: Neither party may assign or delegate the contract formed by this acceptance these terms and conditions without the prior written consent of the other party, provided that Inogen may assign this contract to a person or entity into which Inogen has merged or which has otherwise succeeded to all or substantially all of Inogen’s business or assets pertaining hereto and further provided that Inogen may assign rights to receive payments from Customer to a third party.
9.6 Exception to Terms & Agreements: When Inogen has entered into a separate agreement with a distributor, customer or reseller the terms and agreements referenced within those agreements will supersede the language in this document when referencing to such items as shipping terms, finance arrangements, acceptance of product, notice of changes or substitutions, limited warranty specifications and out of box failure procedures, etc. If the Provider Agreement does not specify or make note of a specific instance or condition, this agreement will take precedent.
9.7 Entire Agreement and Amendments: These terms and conditions shall constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior and contemporaneous representations, agreements, negotiations, advertisements, statements, or understandings, whether oral or written. No amendment to these terms and conditions shall be binding on Inogen unless such amendment is in writing and executed by an authorized representative of Inogen. Any document containing conflicting terms shall not take precedence over these terms and conditions, unless otherwise agreed to in writing by Inogen. Any breach hereunder may be waived only by a writing signed by the party against whom enforcement is sought.
