Standard Terms & Conditions of Purchase
For all Orders of Products and/or Services
By reLink Medical LLC
Effective: May 19, 2016
- TERMS OF PURCHASE FOR ALL ORDERS OF PRODUCTS AND/OR SERVICES; ENTIRE AGREEMENT. These Terms and Conditions of Purchase are incorporated by reference into any and all orders placed by reLink Medical, LLC (“Buyer”) for the purchase of products and/or services (together, the “Order(s)”). All purchases, including, but not limited to, those made by purchase order (P.O.), Bill of Sale/Purchase, and/or any other documented orders from Buyer, together with these Terms and Conditions of Purchase, shall be referred to and considered the “Agreement”, and shall contain the entire agreement between the Buyer and Seller with respect to the purchase and sale of all current and future Orders. Seller is an independent contractor and under no circumstances may Seller represent itself as an agent of or for Buyer. Additionally, Seller and Buyer acknowledge and agree that the sale of the Orders described herein shall not be a consumer transaction.
- ACCEPTANCE OF TERMS AND CONDITIONS. The Agreement constitutes Buyer’s offer to Seller to purchase the Orders and shall become a binding agreement upon acceptance by Seller. Seller’s acceptance shall be indicated by (i) Seller’s written or electronic order acknowledgement and/or other acknowledgement of the order for the Orders; and/or (ii) commencement of delivery of Orders, either in whole or in part. Notwithstanding the Agreement ultimately being considered or deemed an offer, an acceptance or a confirmation, Buyer expressly conditions its purchase of the Orders on Seller’s assent to these terms, regardless of any different, additional, more restrictive and/or conflicting term(s) contained in any terms proposed by Seller, whether before or after acceptance of a Order; Buyer expressly objects to and rejects all different, additional, more restrictive and/or conflicting Seller term(s) unless expressly approved in writing by an authorized management-level representative of Buyer.
- PRICE; PAYMENT; TAXES. The price for the Orders shall not be higher than that which was quoted by Seller; and (i) shall be equal to or less than any contracted pricing, or (ii) if no contracted pricing exists, then pricing shall not exceed the lowest price last charged by Seller for a purchase of equal products or services, or current prices quoted or charged to any other customer of Seller purchasing the same volume or quantity of products/services as Buyer. Seller will promptly refund to Buyer any amounts in excess of such price. Buyer shall not be responsible for any overages unless previously agreed in writing. Unless quoted in advance, prior to placement of an order, Seller shall not add any additional fees or charges to invoices including, but not limited to, the following: medical device excise taxes, minimum order fees, handling or processing fees, credit card fees, priority fees, shipping cut-off fees, expediting fees, exchange fees, drop ship fees, or any other charges or fees; Buyer shall not be responsible for any such fees or charges added later as a line item to an invoice. Seller shall separately state on all invoices and confirmations the applicable sales taxes imposed by federal, state or local governments, unless an exemption is applicable. Unless otherwise agreed by the parties, payment for the Orders will be made within forty-five (45) days of the date of invoice (NET 45).
- All Orders completed hereunder are subject to final inspection and acceptance by Buyer and/or Buyer’s customer. Acceptance shall not alter or affect the warranties of Seller specified herein. Buyer may hold rejected products for Seller’s instructions and at Seller’s risk, or return them to Seller at Seller’s expense and require their correction or replacement. Seller shall promptly reimburse Buyer for losses sustained by Buyer or Buyer’s customer, including but not limited to freight costs, as a result of failure of Orders to conform to the provisions and specifications set forth in the Agreement.
- SHIPMENTS OF PRODUCTS. Terms of delivery of products are F.O.B. shipping point (Buyer owns and takes responsibility for products at the point they are picked up by Buyer and/or turned over by Seller to a common carrier). All products shall be prepared for shipment and appropriately packaged in order to prevent any damage or deterioration. Lowest transportation rates for the corresponding delivery timeframe must be secured, and shipments must comply with Buyer’s shipping and packaging instructions and specifications, as well as all applicable laws and regulations, including but not limited to the Department of Transportation’s Hazardous Materials Regulations. There shall be no Seller-labeled documents or literature in shipments including, but not limited to, promotional materials, invoices or packing slips. Buyer may postpone delivery of any products. Over-shipments may be returned by Buyer at Seller’s expense. Seller represents and warrants that it has removed any and all patient information and other similar identifying information from the products prior to shipment. In order to assist in potential returns, exchanges, warranty processing, and/or tracking requirements, Seller shall record the serial number or other unique identifying number prior to shipment and report this number to Buyer.
- WARRANTIES; COMPLIANCE WITH LAWS. Seller warrants that all Orders are (i) in conformance with all description(s) and condition(s) stated by Seller in conjunction with discussions, quotation and/or order placement, (ii) free from defects in material and workmanship, (iii) manufactured, remanufactured, and serviced/deinstalled in compliance with the original manufacturer’s designs and/or specifications, and in accordance with applicable descriptions, samples, drawings and other specifications, (iv) free from design defects, (v) merchantable, fit, functional and safe for the purpose for which they were originally manufactured, (vi) in compliance with FDA rules and regulations, as well as applicable federal, state and local laws and standards in effect on the date of shipment, including, without limitation, the Occupational Safety and Health Standards Act and the U.S. Food, Drug and Cosmetic Act, as amended, and (vii) provided in compliance with all applicable regulations and Seller has all appropriate and/or required permits, licenses, experience and/or expertise to provide the products/services. Seller also warrants that it has good title to products sold, and that they are free and clear from all liens and encumbrances of any kind. All warranties described herein shall survive acceptance and payment by Buyer, and shall extend to Buyer, Buyer’s customer(s) and any end-user(s) of the Orders. Any applicable warranty period(s) shall commence from the date of receipt of the Order by Buyer’s end-customer. Orders not in accordance with the warranties described herein may be returned to Seller at Seller’s expense. Buyer shall have the option of returning such Orders to Seller at any time after delivery for full credit or replacement at the price charged; payment for invoices shall be put on hold until such time as any such warranty claims, returns or related issues are resolved. Any disputes or other problems that Seller may have regarding any Orders returned under warranty must be reported to Buyer with sufficient documentation and detail within ten (10) business days of receipt by Seller of such returns, or such returns will be deemed accepted for warranty coverage by Seller. Upon contacting Buyer regarding any dispute, a dispute form and/or further documentation may be required, including test reports, photos and/or tracking, as appropriate, in order to support the Seller’s claim. Buyer will review, report back to Seller the findings, and present a resolution within ten (10) days of receiving the claim. Nothing herein shall limit any rights or remedies which Buyer may have at law or in equity. Buyer shall not be required to perform its obligations hereunder if Seller has defaulted on its obligations arising under the Order, or any existing contract, between Buyer and Seller.
- RETURNS; RESTOCKING. For a period up to ten (10) business days after original receipt of the Orders by Buyer or its customer, Buyer shall be permitted to return Orders for full reimbursement (Note: For purposes of clarification, such timeframe is not intended to apply, and thus is not applicable, for warranty returns and/or any other returns attributable to Seller fault, as described herein). Any disputes or problems that Seller may have regarding a return being acceptable must be reported to Buyer with sufficient documentation and detail within ten (10) business days of receipt of the returned Order, or the returned Order will be deemed accepted, at which time Seller shall issue credit to Buyer; if an invoice had not been issued, such invoice may be cancelled as an alternative to the issuance of a credit. Upon contacting Buyer regarding any dispute, a dispute form and/or further documentation may be required, including test reports, photos and/or tracking, as appropriate, in order to support the Seller’s claim. Buyer will review, report back to Seller the findings, and present a resolution within ten (10) days of receiving the claim.
- Seller shall indemnify, defend and hold harmless Buyer, its customers, its subsidiaries, and their respective officers, directors, agents and employees, from and against any and all loss, cost, liability, penalties, judgments, damages and expenses (including, without limitation, reasonable attorneys’ fees and other costs of litigation) suffered by Buyer and resulting from any of the following: (i) Orders provided by Seller, (ii) Seller’s performance hereunder; (iii) Seller’s negligent act or omission; and/or (iv) a breach by Seller of any representation or warranty contained in the Agreement.
- CONFIDENTIAL INFORMATION AND PUBLICITY. Seller shall hold in strict confidence any proprietary information, confidential information and/or customer information disclosed or made available by Buyer and make no use of such information other than as authorized by Buyer. Seller shall not disclose any such information to any third-parties, in whole or in part, without the express written consent of Buyer. Seller shall protect such information with the same degree of care as it uses to protect its own proprietary and confidential information, but in no case less than a reasonable degree of care. Seller shall use due care to prevent its employees, agents, representatives and affiliated organizations from disclosing such information to any unauthorized person. Advertising and promotional material (including the use of Buyer’s name) must be approved by Buyer in writing prior to release; such approval may be withheld by Buyer in its sole discretion. Seller shall not, directly or indirectly, disparage Buyer or Buyer’s relationship with its customers, or, whether for the benefit of itself or for a third-party, induce or encourage any customer or client of Buyer to sever or reduce its business relationship with Buyer.
- Upon request, Seller shall provide proof of adequate general liability insurance as will cover and include (i) the entire obligation assumed by Seller within Orders, (ii) claims and liability related to damages, including, but not limited to, personal injury and/or property damage, arising from the Orders and/or Seller’s performance hereunder, as well as (iii) claims and liability under applicable Workers’ Compensation laws if Seller has employees.
- SELLER’S CONTENT. Seller represents and warrants to Buyer that its Content (all past, present and future images, text, information, intellectual property and/or other materials which Seller provides to Buyer, permits Buyer to collect from Seller or on Seller’s website, including, but not limited to, photographs of equipment and other items): (i) is accurate and not confidential; (ii) Seller owns all right, title and interest in the Content including, without limitation, any intellectual property associated therewith; and (iii) Buyer’s use of the Content below will not violate or infringe upon the rights of any third party including, without limitation, those pertaining to intellectual property. For the purpose of selling the products/services in the world-wide medical industry Seller hereby grants to Buyer a non-exclusive, perpetual, retroactive, assignable, irrevocable, royalty-free, license to search and collect Content from Seller’s website or other platforms, pages or materials which Seller provides or makes publicly available, and to display, copy, use, distribute and/or create derivative works of such Content, or portions thereof (the “License”).
- CANCELLATION OF ORDERS. Buyer shall have the right to modify or cancel the Order or any portion thereof, to refuse delivery of any Orders, and to return to, or hold for the account of, Seller any products received by Buyer: (i) upon Seller’s failure to make any delivery in accordance with the terms of the Order or to comply with shipping and other instructions of Buyer; (ii) in the event that any Orders supplied by Seller (a) do not meet specifications, (b) are deficient, or (c) are not satisfactory to Buyer; or (iii) on account of any unforeseeable cause beyond the control of Buyer, including any act or demand of the United States or any state or local government body, act of God or of the public enemy, terrorist act, fire, flood, strike, embargo, failure of usual means of transportation and any other case which in the judgment of Buyer may adversely affect the sale/purchase of any Orders by Buyer. Buyer, in its discretion and without cause, reserves the right to cancel any Order or any portion thereof, prior to full acceptance as described herein, and Buyer’s maximum liability on account thereof to Seller shall be to pay the agreed price for the portion of such Orders as have been delivered and accepted (if any) as of the time such cancellation is effective; no allowance shall be made to Seller for any overhead or anticipated profit for undelivered Orders. Seller shall deliver to Buyer any Orders paid for by Buyer pursuant to the preceding. Restocking fees shall not apply for the return of any products for which this Section applies.
- GENERAL. (a) Waiver – A waiver of strict compliance with any provision of the Agreement shall not be deemed a waiver of any subsequent breach or failure, nor of Buyer’s right to insist on strict compliance thereafter; (b) Severability – In the event that any provision of the Agreement is for any reason held to be invalid, unenforceable or contrary to public policy, such provision shall be treated as severed from the Agreement, and all other provisions shall remain in full force and effect; (c) Assignment – Seller shall not assign any Order or the Agreement, or any portion thereof, without written consent of Buyer. Assignment shall not release Seller from its obligations; (d) Enforcement – If Buyer prevails in a legal action to enforce its rights hereunder, Seller shall reimburse Buyer for its reasonable costs and applicable expenses incurred, including, without limitation, reasonable attorneys’ fees; (e) Prompt Refund; Set-Off – Seller shall refund or otherwise issue amounts owed to Buyer within three (3) business days of receipt or within three (3) business days of the inspection periods described herein, as related to warranty and/or return transactions. Buyer shall be entitled at all times to set off any amount owed at any time by Seller to Buyer against any amount payable by Buyer to Seller; (f) Record Retention – Upon the written request of the Secretary of Health and Human Services or the Comptroller General, any of their duly authorized representatives, or any other governmental authority, Seller will make available those books, records and accounts of the transactions made with Buyer to verify the nature and extent of costs of providing Orders under this Agreement. Such inspection shall be available for four (4) years after the rendering of such services; (g) Equal Opportunity; Government Contracts – As applicable, the provisions of the Equal Opportunity Clauses pursuant to Section 202 of Executive Order 11246, as amended, and 41 CFR Section 60-1.40; as well as 29 C.F.R. Part 471, Appendix A to Subpart A, are herein incorporated by reference. Further, sellers who (1) are not otherwise exempt as provided by 41 CFR 60-1.5, (2) have 50 or more employees and, (3) have a contract, subcontract or purchase order amounting to $50,000 that is necessary to the completion of a covered federal contract or subcontract are hereby notified of their obligations to file EEO Standard Form 100 and to prepare an affirmative action plan(s) as required under the regulations set forth above. This contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals on the basis of protected veteran status or disability, and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and individuals with disabilities; Additionally, if any products provided by Seller are from end-countries restricted by and/or not accepted through contracts with the U.S. Government, Seller will notify Buyer in writing prior to purchase/shipment; (h) Governing Law – The Agreement shall be construed in accordance with and governed by the laws of the State of Ohio, without regard to its conflict of law principles. Unless agreed upon otherwise in a writing signed by both parties, this Agreement and the rights and obligations of the parties hereto, shall not be governed by the provisions of the United Nations Convention for the International Sale of Goods (CISG). Seller and Buyer consent to the exclusive personal jurisdiction of the state and federal courts in the State of Ohio in connection with the disposition of any controversy or action relating to, or in any manner arising out of, this Agreement. Seller and Buyer waive any argument that personal jurisdiction and venue in such forums is not proper or convenient for any reason, and agree that any litigation initiated either by Seller or Buyer shall be brought in Portage County or Cuyahoga County, Ohio, USA.