Valid for transactions after January 16, 2017.
APPLICABILITY OF TERMS. These terms and conditions have been presented as an integral part of an offer for the sale of medical imaging equipment components (“Items” or “Equipment”) by Meditegic, LLC (“Seller”). Whether provided through email, fax or other communication, the price quoted and the offer for sale is made subject to the following terms and conditions. Acceptance of the offer will be effectuated by any of the following: making payment to Seller, transmitting shipping instructions, transmitting a purchase order, or otherwise communicating assent, and is EXPRESSLY CONDITIONAL on these terms and conditions, to the exclusion of any different or additional terms.
These terms and conditions, or as modified by the particular terms of the quote, constitute the entire agreement between the parties for the sale/purchase. No course of dealing or usage of trade shall control this transaction. Any purchase order or other confirming document transmitted with an acceptance is for Buyer’s accounting purposes only, the terms of which are intentionally excluded from this Agreement. Neither Seller nor Buyer has entered into this agreement in reliance upon any representation, warranty, condition, or undertaking of any other party which is not set out in this Agreement.
EXCHANGE CONDITION. If an Item is quoted on an “Exchange” basis, the price in the quote is a discounted rate, conditioned upon Buyer delivering a like, repairable item to Seller within fifteen (15) days from Seller’s shipment of the sold Item. If Buyer fails to return a like, repairable item within fifteen (15) days, Buyer agrees to pay the full retail price for the Item, up to the full OEM replacement cost. Buyer agrees to remove all personal health information from exchange items prior to sending them to Seller.
PAYMENT TERMS. Unless otherwise indicated on the quote, payment will be due once the Item is available to ship. Any balance remaining unpaid for more than fifteen (15) days from the date due shall accrue interest at a rate of the lesser of one and one-half (1.4%) percent per month or the highest rate allowed by law. In the event of any good faith dispute with regard to a portion of an invoice, the undisputed portion shall be paid as provided herein. Upon resolution of the disputed portion, any amounts owed to Seller shall be paid with interest at the rate set forth above accruing from the date such amounts were originally due. Upon any default of the Payment Terms of this Agreement, Seller may commence collection activities for all sums due or to become due hereunder, all at Buyer’s expense, including but not limited to costs and expenses of collection, collection agency fees, and reasonable attorneys’ fees, and pursue any other remedies permitted by law.
LICENSED PRODUCTS. Seller claims no right, title or interest in or to any software or other licensed products (“Products”) that may be attached to or necessary for the operation of the Equipment that is the subject of this Agreement, and further, Seller disclaims any responsibility for procuring for Buyer from the owner or owners of such Products the legal right to use such Products, whether by assignment of any licenses or other conveyance, and such Products will at all times remain the property of the owner or owners thereof. Buyer is solely responsible for obtaining or causing to be obtained the proper legal authority to use such Products from the owner or owners thereof, and Buyer shall indemnify and hold Seller harmless from and against all claims by others arising from allegations of Buyer’s wrongful use thereof, or from Buyer’s failure to properly observe all copyright restrictions, and any other proprietary interests claimed by others in connection with such Products.
WARRANTY. All Equipment and services are provided As-Is, Where-Is, unless stated otherwise in this Agreement. If a warranty is expressly included in the quote, it is a LIMITED WARRANTY, requiring Seller to take commercially reasonable steps to repair or replace an Item that fails if: 1) the failure was not due to some force external to the Item (e.g. power surge, physical impact, or other system failure – to be determined in Seller’s discretion); 2) the failure was not in any way due to an act or omission of Buyer; 3) the failure occurs within the warranty period; and 4) Seller receives notice of the failure within 72 hours. The parties agree that Seller will not be responsible for any shipping, labor, installation, engineering costs, downtime, temporary equipment, or INCIDENTAL OR CONSEQUENTIAL costs or damages, even if Seller is made aware of their possibility. Any warranty for a piece of Equipment will be void if any of the seals or warranty stickers have been removed or tampered with in any way.
ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND NONINFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM THE COURSE OF DEALING AND PERFORMANCE OR OTHERWISE ARE WAIVED BY SELLER AND BUYER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SELLER SPECIFICALLY DISCLAIMS ANY WARRANTIES OR GUARANTEES WITH RESPECT TO OUTCOME RESULTING FROM ANY SERVICES. BUYER’S EXCLUSIVE REMEDY, AND SELLER’S SOLE OBLIGATION, FOR ANY BREACH OF THIS OR ANY OTHER WARRANTY HEREUNDER SHALL BE FOR SELLER, UPON RECEIPT OF WRITTEN NOTICE, TO USE COMMERCIALLY REASONABLE EFFORTS TO CURE THE BREACH AT ITS OWN EXPENSE, AND FAILING THAT, TO RETURN ANY FEES PAID TO BUYER FOR THE EQUIPMENT OR SERVICES RELATED TO SUCH BREACH.
FORCE MAJUERE. Seller shall not be liable for any failure to perform under this Agreement due to circumstances outside of Seller’s exclusive control.
BUYER’S REPRESENTATIONS. Buyer represents and warrants to Seller that neither the Equipment nor its component parts shall be: (i) used for anything other than its intended medical use; (ii) directly or indirectly implemented in or used for the manufacture, development or dissemination of any type of weapon; (iii) transported in violation of United States or other import or export laws, including but not limited to the regulations of the Office of Foreign Asset Control, Bureau of Industry and Security or the Japanese Foreign Trade and Foreign Export Trade Control Orders. Buyer also represents that: (i) Buyer will comply with all laws; (ii) Buyer will pay or reimburse Seller for any taxes for which this transaction is eligible (iii) Buyer will obtain any software licenses required by law or necessary for the operation or continued use of the Equipment; (iv) Buyer will provide and maintain a safe and professional work environment in which Seller is to perform any installation services; (v) Buyer will assume responsibility for the preservation of all data and patient information; and (vi) Buyer has not provided Seller any reason to believe these representations are false. Seller makes the subject of this agreement for sale on the basis of Buyer’s representations and warranties being true and Seller’s obligation to perform are conditioned on same.
DESTINATION CONTROL. Buyer agrees that these Items are controlled by the U.S. Government and authorized for export only to the country of ultimate destination for use by the ultimate consignee or end-user(s) herein identified. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end-user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the U.S. government or as otherwise authorized by U.S. law and regulations.
LIMITATIONS OF LIABILITY. In no event shall Seller be liable for any special, consequential, incidental or punitive damages. THIS LIMITATION INCLUDES, but IS NOT limited to: loss of profit or revenue; loss of use of the products or any associated equipment; damage to associated equipment; cost of capital, substitute products, STAFF, facilities, services, replacement power, OR down time; or claims of Buyer’s customer for such damages, EVEN IF SELLER IS ADVISED OF THE POSSIBILITY OF AFOREMENTIONED DAMAGES. In no event shall Seller’s liability to Buyer for any loss of damage arising out of, or resulting from this Agreement, or from its performance of breach, or from the Equipment or services furnished hereunder, exceed the Purchase Price of the specific Equipment which give rise to the claim. If Seller furnished Buyer with advice or other assistance which concerns any Equipment supplied hereunder or any system or equipment in which any such Equipment may be installed and which is not required pursuant to this Agreement, the furnishing of such advice or assistance will not subject Seller to any liability, whether in contract, warranty, tort (including negligence and strict liability) or otherwise. The parties agree that any claim, lawsuit, or arbitral proceeding relating to the Agreement must be commenced no more than twelve (12) months after the earlier to occur of: (1) delivery of the Equipment; or (2) the accrual of the cause of action that is the subject of the proceeding. Each of the parties waives any statute of limitations to the contrary. Buyer will indemnify, defend and hold Seller harmless from and against any and all liabilities, claims, judgments, settlements, losses, damages, penalties, obligations, and expenses, including attorneys’ fees, incurred by Seller, arising out of any loss, damage or injury that occurs related to the subsequent use, installation and operation of the Equipment.
NON-WAIVER. Failure of Seller to enforce any provision of this Agreement shall not constitute a waiver of the provision. Seller’s waiver shall only be effective if evidenced by a writing signed by Seller.
GOVERNING LAW; DISPUTE RESOLUTION; JURISDICTION. This transaction and the terms and conditions of the transaction are governed according to the laws of the State of Texas. The provisions of the United Nations Convention on Contracts for the International Sale of Goods, and any conflict-of-laws provisions that would require application of another choice of law, are excluded. In the event of any dispute arising from or relating to the Agreement, the parties hereto shall initially use their best efforts to amicably settle the dispute. To this effect, they shall consult and negotiate with each other in good faith and attempt to reach a mutually satisfactory solution. If they do not reach such an acceptable resolution, then, upon notice by either party to the other, all disputes, claims, questions, or differences regarding the Agreement, or any other disputes between the parties, will be finally resolved by binding arbitration, conducted in the English language using a single arbitrator. Unless otherwise agreed by Seller: (1) if the arbitration involves only United States parties, it will be conducted under the Commercial Arbitration Rules of the American Arbitration Association (AAA) in force as of the date of the request for arbitration, which rules are deemed to be incorporated by reference into this clause; (2) if the arbitration involves any parties not domiciled in the United States, it will be conducted under the International Arbitration Rules of the American Arbitration Association (AAA) in force as of the date of the request for arbitration, which rules are deemed to be incorporated by reference into this clause; (3) the arbitration will be conducted at Seller’s offices in Hidalgo, TX, USA; (4) the arbitrator shall award reasonable attorney’s fees and interest when appropriate; and (5) the award of the arbitrator will be enforceable in any court of competent jurisdiction.
RETURN POLICY. Items sold with installation services may not be returned. Buyer shall have five days from receipt of an Item to notify Seller, in writing, of the material non-conformity with the quote and reject the Equipment. After such time, all Items shall be deemed to have been accepted and non-returnable. Buyer may return unused Equipment, after obtaining prior approval from Seller, within five (5) days from receipt of shipment. Any authorized returns shall be for credit against future purchases only and subject to a 25% re-stocking fee; no refunds will be given. Items returned without authorization or returned after five (5) days will not be accepted and Buyer shall be responsible for the full sales price.
CREDITS. Any credit for future purchases, whether issued for returns, warranty replacements or for any other reason arising out of this transaction, expire one year from the date they are issued and must be used before that date. Any unused and expired credit balances will be forfeited by Buyer to seller.