TERMS AND CONDITIONS OF SALE | Double First Medical, LLC

TERMS AND CONDITIONS OF SALE

  1. TERMS AND CONDITIONS:  Any offer or order placed by Purchaser whether oral, written, by telex or telegram shall be deemed to constitute an offer by the Purchaser to enter into a contract on these Terms and Conditions of Sale (the “Terms and Conditions”), which shall be deemed to be incorporated into such offer or order.  Double First Medical, LLC (the “Company”) and Purchaser’s obligations and rights shall be governed only by the Terms and Conditions, and the provisions of any purchase order or other written or oral representation, inconsistent herewith, shall not constitute part of the contract.  The Company’s agreement to provide products and/or services is expressly conditioned on Purchaser’s assent to these Terms and Conditions.  The Purchaser shall be deemed to have made an unqualified acceptance of these Terms and Conditions on the earliest of the following to occur:  (i) the Company’s receipt of a signed Purchase Order matching this Quotation; (ii) Purchaser’s payment of any amounts due under the agreement between the Company and the Purchaser; (iii) Purchaser’s delivery to the Company of any material to be furnished by the Purchaser; (iv) Purchaser’s receipt of any products and/or services; or (v) any other event constituting acceptance under applicable law.
  2. DISCLAIMER OF IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE:  Except these warranties set forth in the standard warranty agreement, Double First Medical, LLC, makes no warranty of any kind with regard to this product, including, but not limited to implied warranties of merchantability and fitness for a particular purpose.  Double First Medical, LLC, disclaims all other express or implied warranties and assumes no responsibility for any errors or emissions that may appear in this document.  Double First Medical, LLC, makes no commitment to update nor to keep current the information contained in this document.  Double First Medical, LLC., and the Purchaser’s obligations and rights shall be subject to the Terms and Conditions previously delivered to the Purchaser.
  3. LIMITATION OF REMEDIES.  UNDER NO CIRCUMSTANCES WILL THE COMPANY BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OR EXPENSES OF ANY KIND, INCLUDING LOSS OF INCOME OR PROFITS, ARISING IN CONNECTION WITH THIS CONTRACT OR WITH USE OF OR THE INABILITY TO USE THE COMPANY’S GOODS FURNISHED HEREUNDER.  The Company’s liability and the Purchaser’s remedy for any claims arising out of a breach of warranty are as set forth in the Standard Warranty Agreement.
  4. PRICES:  The prices stated herein are F.O.B. the Seller’s plant for the quantities specified.  Such prices are subject to adjustment by the Company for any change made by the Purchaser and approved by the Company in quantities, delivery or other terms hereof.
  5. PAYMENT:  Payment terms are net thirty (30) days after shipment unless otherwise stated on the front of this quotation.  Payments not received within thirty (30) days will be subject to a late charge at the rate of one and one-half percent (1½%) of the unpaid amount per month (or such lesser amount as may be permitted by law).  Payments are to be made only as stated on the front of this quotation.
  6. TAXES AND FEES:  Prices stated herein do not include any manufacturer’s sales, use or other excise taxes, charges, or duties; the amount of any thereof which the Company is required to pay or collect will be invoiced to Purchaser.  Purchaser shall pay all such taxes, charges and duties arising by reason of this order and all other taxes, charges, and duties of whatever nature assessed upon the goods described on the front side thereof.  The Purchaser shall also pay any collection fees and reasonable attorneys’ fees incurred by the Company in collecting payment of the purchase price and any other amounts for which the Purchaser is liable under the Terms and Conditions hereof.
  7. DELIVERY:  Deliveries shall be made in accordance with the schedule, which may be revised by mutual agreement to adjust to job conditions or manufacturing requirements.  The Company cannot guarantee precise delivery dates and shall not be responsible for delays in deliveries, nor liable for any losses, or expenses or damages, including liquidated damages or penalties of any kind, which Purchaser may incur.  Acceptance of delivery by Purchaser constitutes confirmation of Purchaser’s acceptance of the delivery schedule against which the delivery was made.
  8. CHANGES:  Any changes in the order may be made only with the written approval of the Company.  Any changes in drawings, material, design quality, time for performance or other changes increasing the Company’s direct or indirect costs will require repricing.  If work has been started, the Purchaser shall pay for all work performed before written notice of changes is received by the Company.
  9. CANCELLATION OR POSTPONEMENT:
    This contract is not subject to cancellation or postponement by the Purchaser except upon written consent of an authorized officer of the Company.  Any cancellation shall provide for equitable cancellation charges to reimburse the Company for completed items at the order price, and for work in process at the order price less the cost to complete.  In the event of postponement the following shall apply:
    1. The period of postponement shall not exceed thirty (30) days.  Thereafter, the Company shall have the right to order an invoice and ship any completed portions of the order to the destination specified on the face hereof, or to warehouse such material at Purchaser’s expense.
    2. If release is not given by Purchaser within thirty (30) days the Company shall have the right to render an invoice for work in process at the order price less the cost to complete. 
    3. Material held at Purchaser’s request shall be held at the risk of the Purchaser.
    4. The price shall be increased to the extent of the Company’s increased costs.
  10.  SHIPMENT; RISK OF LOSS; TITLE:  Unless otherwise specified by the Purchaser, the Company shall place the goods in the possession of such a carrier and make such a contract for their transportation as may be reasonable having regard for the nature of the goods and good commercial standards.  The Purchaser shall bear all expenses paid or incurred by the Company in delivering the goods.  Risk of loss of the goods shall pass to the Purchaser at the time the goods are rendered for shipment.  Title to the goods shall remain with the Company until payment for the goods is received in full by the Company.RETURNS:  Customer may return any goods, other than computer software, within seven (7) days of the date specified on the face hereof for credit toward purchase of other Company goods.  The goods must be returned in new, saleable condition, or in a condition at least as good as when sold to Customer, along with original packaging, manuals and this Purchase Agreement.  Computer software programs may not be returned for credit or refund.  The Company will charge a 30% restocking fee on any and all returns.
  11. CLAIMS, CANCELLATION, MODIFICATION, SUSPENSION:  All claims must be filed within twenty (20) days after installation of the goods with respect to which the claim is made.  Cancellation, modification, suspension, or delay in shipment of the Purchaser’s order will not be accepted on terms which will not full indemnify and reimburse the Company against loss; such indemnity to include recovery of all direct costs incurred, including normal indirect and overhead charges and a normal profit.
  12. CREDIT APPROVAL:  Shipments, deliveries and performances of work shall at all times be subject to the approval of the Company’s credit department.  The Company may at any time decline to make any shipment or delivery or perform any work except upon receipt of payment or upon such other terms and conditions as are acceptable to the Company’s credit department.
  13. NOTICE:  Any notice shall be considered given when deposited in the United States mail, postage prepaid, addressed to the other party at the address given
  14. WAIVER:  No claim or right arising out of a breach of this agreement can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party.
  15. SETOFF:  The Company may set off any amount due from the Purchaser, whether or not under this agreement, against any amount which become due to the Purchaser hereunder.
  16. SECURITY INTEREST:  The Company retains a security interest in all goods sold to secure payment of the purchase price and all other indebtedness now or hereafter owing by the Purchaser to the Company.  At the Company’s request, the Purchaser will execute a financing statement or statements evidencing such security interest and will take any other action necessary to perfect the same.  In the event Purchaser defaults in payment for the goods purchased hereunder, the Company shall have all the rights of a secured party under the Texas Uniform Commercial Code.
  17. FORCE MAJEURE:  No liability shall result from delay in performance or nonperformance on the part of the Company, directly or indirectly caused by fire, explosion, accidents, flood, labor trouble or shortage, war, act or regulation of any government, inability to obtain suitable material, equipment, fuel power or transportation, or act of God; or arising from contingencies, happenings or causes beyond the control of the Company.  Quantities so affected by any such circumstances may be eliminated without liability, but this agreement shall otherwise remain unaffected.
  18. ASSIGNMENT:  The Purchaser shall not assign its right under this contract or any therein without the Company’s prior written consent.
  19. CONTROLLING LAW:  This transaction shall be governed by, and this contract shall be construed and enforced in accordance with the internal laws of Wisconsin.  If any provision, clause or part, or the application thereof under certain circumstances is held invalid, the remainder of this contract or the application of such provision, clause or part under other circumstances shall not be affected thereby.

STANDARD WARRANTY AGREEMENT

Double First Medical, LLC. (hereinafter referred to as Double First Medical) hereby warrants that individual manufacturer’s products (hereinafter referred to as the “Products”) shall be free from defects in material and workmanship under normal use, service and maintenance for the original manufacturer’s warranty period. Normal use, service and maintenance means operation and maintenance in accordance with appropriate instructions and/or information guides. This Warranty does not apply to damage to the Products caused by any or all of the following circumstances or conditions:

(a.) Freight damage;

(b.) Parts and/or accessories of the Products not obtained from or approved by the original manufacturer;

(c.) Misapplication, misuse, abuse and failure to follow the Product instruction sheets and/or information guides;

(d.) Accident, a disaster affecting the Products;

(e.) Alterations or modifications to the Products not authorized by the original manufacturer;

(f.) Other events outside of original manufacturer’s reasonable control or not arising under normal operating conditions.

The remedy under this warranty is limited to the repair or replacement without charge for labor or materials, of any Products found upon examination by the original manufacturer to have been defective. This remedy shall be conditioned upon receipt of notice by Double First Medical of any alleged defects promptly after discovery thereof within the warranty period. Double First Medical’s obligations under the foregoing warranty will further be conditioned upon the assumption by the purchase of the Products (i) of all carrier charges with respect to any Products returned to original manufacturer’s principal place or any other place as specifically designated by original manufacturer or an authorized distributor or representative of original manufacturer, and (ii) all risk of loss in transit. It is expressly agreed that the liability of Double First Medical is limited and that Double First Medical does not function as an insurer. A purchaser of a Product, by its acceptance and purchase thereof, acknowledges and agrees that Double First Medical is not liable for loss, harm or damage due directly or indirectly to an occurrence or consequence there from relating to the Products. If Double First Medical should be found liable to anyone under any theory (except the expressed original manufacturer’s warranty set forth herein) for loss, harm or damage, the liability of Double First Medical shall be limited to the lesser of the actual loss, harm or damage, or the original purchase price of the Product when sold.

Excluded from the limited warranty set forth above are consumable items such as paper, batteries, electrodes, patient cables, lead wires, and magnetic storage mediums.

Except as set forth herein with respect to reimbursement of labor charges, a purchaser’s sole exclusive remedy against Double First Medical for claims relating to the Products for any and all losses and damages resulting from any cause shall be the repair or replacement of defective Products to the extent that the defect is noticed and Double First Medical is notified with the warranty period. In no event, including the claim for negligence, shall Double First Medical be liable for incidental, special or consequential damages, or for any other loss, damage or expense of any kind, including loss of profits, whether under tort, negligence or strict liability theories of law, or otherwise. This warranty is expressly in lieu of any other warranties, expressed or implied, including, but not limited to the implied warranty of merchant ability and the warranty of fitness for a particular purpose.