The terms and conditions of this invoice apply to all products (“Products”) and/or services (“Services”) purchased by Buyer from Seller. These Terms of Sale supersede the terms and conditions of any written agreement between the parties, unless such written agreement is executed by an authorized representative of Seller, any Buyer purchase order or other document, or any oral agreement between the parties. In the event of any conflict or inconsistency between these Terms of Sale and a separate document signed by both parties, the terms of the separate document signed by both parties shall control. No provision in either party’s purchase order or in any other business form employed by either party, excluding a separate document signed by both parties, will supersede these Terms of Sale. No prior course of dealing or usage of trade shall affect this invoice or be admissible to explain, modify, or contradict this invoice and the agreement arising therefrom (collectively “Agreement”). For purposes of this Agreement, the term “Supplier” means a manufacturer, supplier, or other supplier of a Product that is purchased by Seller for distribution.

 

1. Credit and Payment. All payments for Products and/or Services must be received by Seller Net within thirty (30) days from the date of invoice, unless otherwise agreed to by the parties. Any invoiced amount remaining unpaid after thirty (30) days shall be "past due." Past due balances are subject to an interest charge of one and one-half percent (1.5%) per month. Any interest charged and collected in excess of applicable state law shall be returned. If Buyer fails to pay any or all of the invoiced amount when due or if Buyer's credit or financial status erodes or otherwise renders Seller insecure, Seller may, in its sole discretion, without further notice immediately: (i) suspend Seller's performance or cancel all or any part of an order hereunder, (ii) change any payment term to a payment term determined by Seller (including imposing the requirement of cash payment upon delivery); (iii) pay any incentives, rebates, fees, or other discount arrangements net of any amounts due hereunder, and any unauthorized deductions and service charges and terminate and/or declare Buyer ineligible for any incentives, rebates, fees, or other discount arrangements; (iv) declare immediately due and payable all other amounts invoiced by Seller to Buyer regardless of when such payments would otherwise be due from Buyer, and/or (v) increase the prices for Products and/or Services. Any discrepancy between any order placed by Buyer and Seller's corresponding shipment(s) must be reported to Seller for resolution within ten (10) days of Seller's invoice date, except for price or payment discrepancies or any claims for reimbursement, which must be reported to Seller for resolution within thirty (30) days of Seller's invoice date. Seller shall have no obligation to resolve and Buyer shall hold Seller harmless and waives any rights to any discrepancy or to issue any credit or refund, or to replace any goods if claim therefore is not made within said applicable ten (10) or thirty (30) day period. All requests for proof of delivery for reasons other than shipment, price or payment disputes must be made within sixty (60) days of Seller’s invoice date. If the payment term due date falls on a weekend day or holiday, payment is due and payable on the succeeding business day.

 

2. Chargebacks. In consideration of Seller allowing Buyer to purchase Products at discounted prices, Buyer agrees that Seller will be paid the difference between Seller’s acquisition cost and the discounted price of the Product from the applicable Supplier (“Chargeback(s)”). In the event Seller is denied any Chargeback from a Supplier as a result of Buyer providing incomplete, inaccurate, or incorrect information to Seller or Supplier, Buyer will be liable to Seller for such Chargeback amount.

 

3. Reporting and Disclosure Obligations. THE PRICES ON THIS INVOICE MAY BE SUBJECT TO REBATES, CREDITS AND OTHER PRICE ADJUSTMENTS. BUYER IS OBLIGATED TO PROPERLY DISCLOSE AND APPROPRIATELY REFLECT ALL DISCOUNTS, INCLUDING REBATES, IN CLAIMS AND COSTS SUBMITTED TO FEDERAL AND STATE GOVERNMENT HEALTH CARE PROGRAMS (INCLUDING MEDICARE AND MEDICAID), AND TO PROVIDE THIS INVOICE AND OTHER DISCOUNT DOCUMENTATION TO GOVERNMENT AUTHORITIES ON REQUEST, IN ACCORDANCE WITH ALL APPLICABLE LAWS AND REGULATIONS, INCLUDING 42 USC 1320A-7B(B) AND THE DISCOUNT SAFE HARBOR.

 

4. Shipment. Shipment of Products per routine order to Buyer and subsequent back orders related to the original shipment shall be shipped FOB Destination, except for drop shipments which shall be shipped in accordance with Supplier’s shipping policies. The cost of shipment, if any, has been paid by Seller and added to this invoice. Emergency orders, rush orders, orders for Products not regularly stocked by Seller’s local servicing distribution center, Products dropped shipped from Supplier, and orders not regularly scheduled are subject to an added shipping and handling charge determined by Seller and disclosed to Buyer prior to or at the time of order. Seller shall have the right to ship the Products at all times via its own vehicle or a carrier selected by Seller.

 

5. Minimum Order Requirement. Minimum orders may be subject to Seller’s minimum order requirement in effect and quoted at the time of order. For orders less than such minimum order requirement or orders placed via telephone or facsimile, Seller may add to the invoice a handling charge determined by Seller and disclosed to Buyer prior to or at the time of order.

 

6. Product Recommendations. Seller may make available to Buyer certain recommendations concerning products that are comparable, functionally equivalent, clinically equivalent, or equivalent to other products used or identified by Buyer (“Equivalency Recommendations”).

 

Buyer agrees and stipulates that in making any Equivalency Recommendation, Seller is relying solely on the independent skill, knowledge and judgment of its Suppliers or others in the industry and is not independently providing medical product information upon which Buyer can rely in order to make its product selection decision. Buyer agrees and stipulates that in making product decisions Buyer is relying on its independent professional judgment. Buyer hereby agrees to waive, release, indemnify and hold Seller and its affiliates harmless from any claim arising from an Equivalency Recommendation. Buyer agrees and stipulates that it is a sophisticated user of medical products and it agrees and stipulates that it is a learned intermediary between Seller and the end user/patient.
 

THESE EQUIVALENCY RECOMMENDATIONS MAY BE MADE VERBALLY, IN WRITING OR VIA A DATABASE. THE EQUIVALENCY RECOMMENDATIONS ARE RECOMMENDATIONS ONLY AND ARE NOT REPRESENTATIONS OR WARRANTIES CONCERNING ANY PRODUCT PERFORMANCE OR EQUIVALENCY AND ANY SUCH REPRESENTATIONS OF WARRANTY ARE HEREBY DISCLAIMED. THESE EQUIVALENCY RECOMMENDATIONS ARE BASED UPON MATERIALS SUPPLIED BY BUYER’S SUPPLIER AND OTHER INDUSTRY–AVAILABLE INFORMATION.

 

7. Data. Buyer acknowledges that Seller will provide information and reports to group purchasing organizations, Suppliers, and other third parties relating to Buyer’s purchases from Seller. Buyer hereby waives any rights of confidentiality with respect to such information to the extent necessary to allow Seller to provide such information to group purchasing organizations, Suppliers, and other third parties.

 

8. Resale of Products. Buyer hereby certifies that it is purchasing Products from Seller for its own use. Products are not for resale. Buyer shall purchase Products from Seller for its own use and shall not resell or redistribute Products.

 

9. Return Goods Policy. Subject to applicable law, Seller will process returned goods for Products purchased from Seller, in accordance with its then standard Return Goods Policy. Seller’s current Return Good Policy is as follows:
 

   (1) All requests for return of Products must be pre-approved by Seller’s customer service department. Not all items are returnable. Some items may require additional restocking fees. A credit will not be issued for items returned without pre-approval.
 

(2) All returned Products must be: (i) returnable to Supplier; (ii) in the original unopened packaging;
    and (iii) in resalable condition, unless such Products are not in original unopened packaging or

     resalable condition due to the fault of Seller.
 

(3) The amount of credit on any given return, as described below, will be issued no later than thirty (30)

   days after the receipt of the merchandise and necessary documentation and the examination and

   inspection of such return at the local Seller distribution center.
 

(4) Product that are: (a) special order Products; (b) Custom Products; or (c) Products not available for

      general or unrestricted distribution are not returnable.
 

(5) Products shipped in error by Seller and nonconforming Products – FULL CREDIT – if returned  

      within thirty (30) days of date of invoice.

 

(6) Products shipped in error by Seller and nonconforming Products not returned within thirty (30) days

      are not returnable.
 

(7) Products shipped that are damaged or do not meet Seller standard quality – FULL CREDIT – if

      returned within thirty (30) days of date of invoice.
 

(8) Products shipped that are damaged or do not meet Seller’s standard quality not returned within

      ninety (90) days of invoice are not returnable.
 

(9) Locally stocked Products returned within thirty (30) days of date of invoice – FULL CREDIT.

 

(10)Locally stocked Products returned after thirty (30) days of date of invoice – 15% RESTOCKING

      CHARGE.
 

(11)Non-locally stocked Products that are returned within thirty (30) days of date of invoice - 15%

    RESTOCKING CHARGE (plus any additional costs incurred in returning such Products to the  

    Supplier).

 

(12)Non-locally stocked Products that are not returned within thirty (30) days of date of invoice are not

      returnable.

 

(13)Returned items that require a pedigree under applicable law, such as prescription drugs, must be     
       accompanied by the appropriate signed declaration from Buyer. For Buyers in the State of Florida

       the signed declaration must be signed within seven (7) days of the original invoice date. Failure to

       comply results in NO CREDIT.

 

(14)Notwithstanding anything above to the contrary, Buyer shall receive FULL CREDIT on any  

      Products returned as the result of a recall or defective condition.

 

10. Excusable Delays. If a party is unable, wholly or in part, by reason of force majeure or any other reason beyond the reasonable control of the party, including unavailability of Products, to carry out its obligations hereunder (other than the obligation to make money payments), that party shall give the other party written notice thereof with reasonable particulars concerning it. During the period of delay, the obligations of all parties hereunder (other than the obligation to make money payments), shall be suspended. The affected party shall use reasonable due diligence to continue performance as quickly as possible.

 

Except for the obligation to pay money, a party will not be liable to the other party for any failure or delay in performance caused by fires, shortage of materials or transportation, government acts, acts of terrorism, or any other matters beyond the first party's reasonable control, and such failure or delay will not constitute a material breach of this Agreement.
 

11. Taxes; Enforcement Costs. All amounts payable to Seller under this Agreement are exclusive of all sales, use, value-added, withholding, and other taxes and duties. Buyer will promptly pay, and indemnify Seller against, all taxes and duties assessed in connection with any such amounts, this Agreement and its performance by any authority within or outside of the U.S., except for taxes payable on Seller’s net income.

 

In the event it becomes necessary for either party to take action to collect any sums due or enforce any other provisions of this Agreement, the prevailing party shall be entitled to recover all costs and expenses of collection, including without limitation, reasonable attorney’s fees and court costs.
 

12. Time for Bringing Action. Any action of any kind arising out of or in any way connected with this Agreement, other than collection of outstanding payment obligations, must be commenced within one (1) year upon which the cause of action accrued.

 

13. Non-Disposable Products. Non-disposable Products, such as furniture and equipment, sold by Seller may be refurbished or reconditioned.

 

14. Disclaimer. SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY OF ANY PRODUCTS OR THEIR FITNESS FOR ANY PARTICULAR USE OR PURPOSE. BUYER SHALL LOOK TO MANUFACTURER OF PRODUCTS AND THE PROVIDER OF SERVICE FOR ANY WARRANTY THEREON. NO AGENT, EMPLOYEE, OR REPRESENTATIVE OF SELLER HAS ANY AUTHORITY TO MAKE ANY AFFIRMATION, REPRESENTATION, OR WARRANTY CONCERNING PRODUCTS NOT SET FORTH IN THIS AGREEMENT.

 

AS SALES PRICE AND/OR AVAILABILITY OF ANY PRODUCT IS SUBJECT TO CHANGE WITHOUT PRIOR NOTICE REGARDLESS WHETHER IT IS ON-LINE OR OFF-LINE SALES, BUYER NEEDS TO IN ITS SOLE DISCRETION CONFIRM THE PRICE AND/OR AVAILABILITY OF THE PRODUCT AT THE TIME OF PURCHASE. BUYER SHALL NOT HOLD SELLER LIABLE FOR ANY SUCH CHANGE FROM THE POSTED PRICE AND/OR AVAILABILITY WHICH MIGHT HAPPEN BECAUSE OF BELATED POSTING OF THE NEW PRICE AND/OR AVAILABILITY ON SELLER WEB SITE.

 

BUYER SHALL NOT HOLD SELLER LIABLE FOR ANY DEFECT IN PRODUCTS OR SERVICES, REGARDLESS OF KIND. BUYER AGREES TO FILE SOLELY WITH MANUFACTURER OF THE PRODUCTS OR THE PROVIDER OF SERVICE ANY CLAIM OR LAWSUIT ALLEGING LOSS, INJURY, DAMAGE, OR DEATH ARISING OUT OF OR CAUSED BY THE USE, SALE, DISTRIBUTION, OR POSSESSION OF PRODUCTS OR SERVICES.

IN NO EVENT SHALL SELLER BE LIABLE TO BUYER UNDER, IN CONNECTION WITH, OR RELATED TO THIS AGREEMENT FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY, OR OTHERWISE, (INCLUDING LOST PROFITS) FROM ANY CAUSE, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM ANY UNAVAILABILITY OF, DEFECT IN, OR MISSHIPMENT OF PRODUCTS OR THE PROVISION OF SERVICES, AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
 

15. Assignment. Buyer shall not assign or transfer any interest under any order accepted by Seller or delegate any obligation hereunder without the prior written consent of Seller.

 

16. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state of California, without any construction or interpretation against Buyer or Seller. Buyer and Seller irrevocably consent to the exclusive jurisdiction of the state courts of San Bernadino County, California and the federal courts situated in San Bernadino, California, in connection with any action to enforce the provisions of this Agreement, to recover any damages or to obtain any other relief with respect to any matter connected with or arising from this Agreement or the transactions contemplated therein, including without limitation, breach or default under this Agreement, or otherwise arising under or by reason of this Agreement.