TERMS AND CONDITIONS OF SALE TO END USERS
The following terms and conditions will apply to the sale by iMed Biomedical., (“iMed Biomedical”) to the buyer (“Buyer”), of any products and/or services (the “Product(s)”), unless modified by a separate written agreement between iMed Biomedical and Buyer. iMed Biomedical expressly conditions its sale of the Products on Buyer’s assent to these terms notwithstanding any differences, additions or conflicting terms contained in any purchase order or other terms proposed by Buyer. The Buyer may not sell, distribute, convey, barter or otherwise transfer the Products purchased from iMed Biomedical except to individual persons in the course of providing health care services without the express written agreement of iMed Biomedical.
1 PRICES. Prices do not include, and Buyer will pay or reimburse iMed Biomedical for, any and all taxes (other than iMed Biomedical’s income taxes) and other governmental fees, assessments, duties and charges that are payable as a result of this transaction. Buyer shall be responsible for maintaining current state tax exemption certificates where applicable, and shall forward copies to iMed Biomedical upon request.
2 SHIPMENTS, DELIVERY AND INSPECTION. Unless agreed otherwise in writing by iMed Biomedical and Buyer, the Products shall be shipped CPT Buyer’s facility (Incoterms 2000, as updated from time to time) with freight collect if applicable. Delivery shall occur and title and risk of loss shall pass to Buyer upon iMed Biomedical’s placement of the Products with carrier for shipment to Buyer. The shipping terms for IMed Biomedical. are as follows:
All product brands
iMed Biomedical will use the customer’s provided freight account number to charge the cost for ground freight for orders shipped within the contiguous USA.
The Buyer will bear all costs, insurance premiums, freight and other expenses incurred after iMed Biomedical has placed Products in the custody of the carrier. The standard insurance charge is $100. The buyer will be given the option to decline insurance or increase value.
iMed Biomedical shall use its reasonable commercial efforts to deliver the Products to Buyer by the date set out in Buyer’s purchase order, but time for delivery shall not be of the essence. If Buyer’s order is for multiple types of Products, such Products may be shipped in lots of similar Products, as reasonably determined by iMed Biomedical, and each such lot will be paid for separately. No nonconformity or defect in any lot will constitute a breach of Buyer’s entire purchase order, and any lots whose conformity and condition Buyer does not dispute will be paid for in accordance with these terms and conditions, regardless of any dispute concerning other shipments or undelivered Products.
Buyer will promptly inspect all Products delivered to it. Any claim against iMed Biomedical under the Warranty in section 6 below or otherwise for shortages or for damages to or defects in the delivered Products that are observable in a reasonable visual inspection will be deemed waived unless the claim is made to iMed Biomedical within 30 days after such delivery. Buyer shall request any proof of delivery within 30 days of delivery.
3 ORDERING PROCESS The following information must be included in every purchase order:
• Customer/Buyer name
• Bill to address
• Complete delivery address
• Purchase order number or Product Reorder number
• Date by which the product is required
• Shipping preference
• Item, quantity and unit price
• Total price per line
• Contact name, phone number, fax number or email address
Orders may be placed as follows:
Mail Orders Attention Customer Service: 1555 Valwood Pkwy. #110, Carrollton, TX 75006
Phone Orders 1-888-965-4633
Email Orders firstname.lastname@example.org
4 PAYMENTS. If the full payment of the purchase price is not received when due as specified by iMed Biomedical or, if not so specified, within 30 days after the shipment date, iMed Biomedical reserves the right to charge interest on any unpaid balance at a rate of up to 1½% per month (or the highest rate permitted by applicable laws, if lower) from the due date. Buyer also agrees to pay all collection costs, expenses and reasonable attorneys’ fees for collection of any amount due and unpaid. iMed Biomedical may suspend or cancel deliveries of ordered Products if Buyer fails to pay when due any amount owed by it to iMed Biomedical for any goods or services. iMed Biomedical also reserves the right to require from Buyer, at any time, satisfactory assurance of performance of Buyer’s payment obligations to iMed Biomedical, and refusal or failure promptly to furnish such assurance will entitle iMed Biomedical to suspend or cancel further deliveries to Buyer.
5 CANCELLATIONS AND RETURNS. Any order by Buyer may be cancelled or changed only with the consent of iMed Biomedical. Prior consent from iMed Biomedical is required before a return will be accepted. If a Product is returned with such consent, it shall thereupon become the property of iMed Biomedical. Products other than hardware items have a 90-day return period from the date of invoice unless otherwise specified in your contract. All returns must be accompanied by a valid Return Authorization Number received from iMed Biomedical’s returns department. Returned Product must be sent freight prepaid to the appropriate address indicated by iMed Biomedical’s returns department. iMed Biomedical accepts no responsibility for Product returned without prior authorization. Any unauthorized returned Product will be returned to Buyer at Buyer’s expense.
6 WARRANTY, INSPECTION AND CLAIMS. iMed Biomedical warrants exclusively to Buyer that each Product sold hereunder will be free from defects in material and workmanship under normal use, if used in accordance with its labeling for the period specified in the operators’ manual, the packaging inserts or other documents accompanying the Product. iMed Biomedical will have the right at its expense to inspect and have returned any Product claimed by Buyer to violate this “Warranty.” iMed Biomedical’s sole obligation and Buyer’s exclusive remedy for any breach of the Warranty will be the repair or replacement, at iMed Biomedical’s option, of the defective Product.
Any replacement or repaired Product will be covered by the Warranty only for the remainder of the original warranty period as detail in Buyer’s specific contract guidelines, if applicable. If iMed Biomedical determines that such repair or replacement is not economical or feasible or such remedy fails of its essential purpose, Buyer’s exclusive alternate remedy and iMed Biomedical’s sole obligation for any such breach will be the return to Buyer of the purchase price paid to iMed Biomedical for the Product, in which case iMed Biomedical may repossess the Product. The Warranty will apply only if: (i) the delivered Product is not altered or damaged and is properly installed, stored, handled, maintained and used in accordance with the Product’s normal usage and any iMed Biomedical published instructions; and (ii) Buyer notifies iMed Biomedical of the defect in writing not more than one year after its delivery to Buyer and not more than 30 days after Buyer first learns of the defect.
EXCEPT FOR THIS EXPRESS WARRANTY AND IMED BIOMEDICAL’S STATUTORY WARRANTY OF GOOD TITLE, IMED BIOMEDICAL MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING THE PRODUCTS COVERED HEREBY INCLUDING (WITHOUT LIMITATION) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. NO EMPLOYEE, AGENT, OR REPRESENTATIVE OF IMED BIOMEDICAL IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY ON BEHALF OF IMED BIOMEDICAL EXCEPT TO THE EXTENT SPECIFICALLY STATED HEREIN.
NO WARRANTIES EXTEND TO ANY PRODUCTS NOT PURCHASED DIRECTLY FROM IMED BIOMEDICAL OR FROM AN AUTHORIZED IMED BIOMEDICAL DISTRIBUTOR. IMED BIOMEDICAL’S WARRANTIES EXTEND ONLY TO THE ORIGINAL PURCHASER OF THE PRODUCTS.
7 LIMITS ON LIABILITY. IN NO EVENT, WHETHER BASED ON BREACH OF WARRANTY OR CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR ANY OTHER LEGAL THEORY, WILL IMED BIOMEDICAL BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR COST OF “COVER” ARISING OUT OF THE SELECTION, ORDERING, PURCHASE, USE, RESALE OR DISTRIBUTION OF THE PRODUCTS COVERED HEREBY, OR OTHERWISE, EVEN IF IMED BIOMEDICAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN PARTICULAR IMED BIOMEDICAL WILL NOT BE LIABLE FOR LOSS OF PROFITS, SAVINGS OR REVENUE; DAMAGE TO REPUTATION; LOSS OF USE OF A PRODUCT OR ANY ASSOCIATED EQUIPMENT; COST OF CAPITAL; COST OF ANY SUBSTITUTE GOODS, EQUIPMENT, FACILITIES OR SERVICES; DOWNTIME; AND THE CLAIMS OF THIRD PARTIES INCLUDING BUYER’S CUSTOMERS.
8 FORCE MAJEURE AND SHORTAGES. iMed Biomedical will not be liable for loss or damage of any kind resulting from any delay in delivery or failure to supply ordered Products or otherwise carry out its obligations under this agreement due to causes beyond its control, and no such event will relieve Buyer of its obligations to make payments for other deliveries under this agreement. iMed Biomedical reserves the right, in its sole judgment and without liability to Buyer, reasonably to allocate its available production capacity and Product inventories as may be necessary or equitable in the event of any shortages of production capacity or Products at any time.
9 DISCOUNTS AND REBATES. The dollar value of discounts and rebates (if any) provided by iMed Biomedical to the Buyer are intended to be discounts or reductions in price described in and in accordance with 42 U.S.C. Section 1320a-7b(b)(3)(A) and 42 C.F.R. Section 1001.952(h). Buyer has an obligation to accurately record and may have an obligation to report all such reductions in purchase price to the Department of Health and Human Services (“DHHS”) or other federal agency, state agencies, or other payers, as applicable. Buyer may also be required to submit other information required by 42 C.F.R. Section 1001.952(h) to DHHS or other federal agencies, state agencies, or other payers, as applicable, upon request. Buyer acknowledges that this section is sufficient to effectively advise Buyer of its obligations under the laws noted above.
10 PRESCRIPTION LICENSES. Buyer will maintain all licenses and consents required for the purchase of prescription products, and upon reasonable notice Buyer shall furnish copies of such licenses to iMed Biomedical.
11 COMPLIANCE WITH LAWS AND REGULATIONS. Buyer will comply with all federal, state and local laws, regulations and ordinances applicable to its business and activities and will indemnify iMed Biomedical for any and all claims, damages, penalties, assessments and liabilities imposed on iMed Biomedical relating to or resulting from Buyer’s failure to comply with such applicable laws, regulations and ordinances.
12 ASSIGNMENT. Any assignment of Buyer’s rights or obligations hereunder will be void without iMed Biomedical’s prior written consent.
13 MODIFICATION. These terms and conditions may be amended or terminated at any time by iMed Biomedical. Further, iMed Biomedical reserves the right to modify or discontinue any of its products at any time.
14 THIRD PARTY BENEFICIARIES. Nothing in these terms and conditions is intended to benefit any person other than the Buyer and iMed Biomedical.
15 CODE OF CORPORATE RESPONSIBILITY. iMed Biomedical is committed to conducting its business ethically and lawfully. To that end iMed Biomedical maintains a Code of Corporate Responsibility and Business Ethics and mechanisms for reporting unethical or unlawful conduct. iMed Biomedical expects that Buyer also will conduct its business ethically and lawfully. If Buyer has cause to believe that iMed Biomedical or any employee or agent of iMed Biomedical has behaved unethically or unlawfully under, or in connection with these terms and conditions Buyer is encouraged to report such behavior to IMed Biomedical.
16 GOVERNING LAW AND JURISDICTION. This agreement, and any claims or disputes related to this agreement, will be governed by the laws of the state in which the iMed Biomedical facility to which the Buyer purchase order is addressed or sent. Such laws shall exclude conflict of law provisions and, with respect to a U.S. state, the U.N. Convention on Contracts for the International Sale of Goods. All actions or proceedings under or relating to this agreement will be subject to the exclusive jurisdiction of a state, federal or comparable court located in that jurisdiction; provided, however, that in iMed Biomedical’s discretion such an action may be heard in some other place designated by it if necessary to acquire jurisdiction over third persons so that the dispute can be resolved in one action. Buyer hereby agrees to appear in any such action, consents to the jurisdiction of such courts, and waives any objections it might have as to venue in any such court. Both parties hereby knowingly and willingly waive their respective right to a trial by jury in any actions or proceedings under or relating to this agreement.