I. General. All quotations, products and services provided by MedCorpllc (hereinafter referred to either as “MedCorp” or “Seller”) to any customer, distributor, end-user or other purchasers (“Buyer”) for products or services are furnished only on the terms and conditions stated herein, unless otherwise altered by MedCorp by written agreement between Buyer and MedCorp. By acceptance of products or services from MedCorp, Buyer accepts and agrees to be bound by these Terms and Conditions and agrees that, unless otherwise specified by separate written agreement between Buyer and MedCorp, these terms and conditions, together with the item, quantity, delivery and other terms in MedCorp’s Order Acknowledgment or Quotation, shall constitute the entire agreement between the parties on the subject matter hereof, superseding all other communications, documentation and negotiations (the “Agreement”).
Without limiting the foregoing, Buyer’s acceptance of products or services hereunder shall be deemed a waiver of, and MedCorp hereby expressly rejects, any different or additional terms, preprinted or otherwise, in any purchase order or other documentation furnished by Buyer, whether before or after delivery of the products or services, and regardless of whether MedCorp has acknowledged receipt thereof by signature or otherwise. No modification of these terms and conditions shall be valid against MedCorp unless the modifications appear in a negotiated agreement signed by an officer of MedCorp.
References in this Agreement to the “Equipment“ or “Product” means the products purchased or leased by Buyer, as identified in the Agreement.
II. Price/Terms of Payment/Late Payment. All prices published by Seller or quoted by Seller's representatives may be changed at any time without notice prior to Buyer’s acceptance of the Product or Services. All prices for the Products or Services will be as specified by Seller in its Order Acknowledgment or Quotation to Buyer or if no price has been specified or quoted, will be Seller's price in effect at the time of shipment. All prices are subject to adjustment on account of specifications, quantities, raw materials, cost of production, shipment arrangements or other terms or conditions which are not part of Seller's original price quotation.
Failure to make timely payment is a material breach of the Agreement, for which (in addition to other available remedies) Seller may suspend performance under the current Agreement, or under any other agreements with Buyer, until all past due amounts are brought current. Upon a material breach of the Contract, interest shall accrue on past-due amounts at a rate equal to the lesser of 1.5% per month or the maximum rate permitted by applicable law. Buyer shall be responsible for Seller’s reasonable costs (including attorneys' and paralegals fees and costs) relating to collection of past due amounts. Any credits that may be due to Buyer under any agreement with Seller may be applied, in Seller’s discretion, first to any outstanding balance due hereunder.
III. Taxes. The price specified for the Product and/or Services does not include applicable sales, excise, use, value added or other taxes, duties or fees now in effect or hereafter levied which Seller may be required to pay or collect in connection with the sale of goods to Buyer, whether or not expressly set forth herein or in any Quotation furnished with respect to the Equipment. Buyer shall promptly pay all such taxes, duties and fees to Seller upon demand. Duties and fees include, but are not limited to, applicable customs duties-and custom broker charges.
IV. Remedy for Unavailable Equipment. Buyer acknowledges that the Equipment may be offered by Seller simultaneously to several customers; therefore, all sales are subject to Equipment availability at the time of Buyer's acceptance of the applicable Quotation. If the Equipment or any part thereof is no longer available, then and in that event, (a) Seller will attempt to identify substitute Equipment that meet Buyer's needs, or (b) if substitute Equipment is not available, Seller will cancel Buyer's order and refund any deposits Buyer has made for the cancelled order. This is Seller’s sole liability and Buyer’s exclusive remedy.
V. Delivery. Unless otherwise specified, the Equipment shall be delivered to Buyer F.O.B. shipping point, freight prepaid and add, UNLESS NOTED OTHERWISE. All transportation, license fees, custom duties and other such charges shall be paid by Buyer and added to the total purchase price shown in the listing UNLESS NOTED OTHERWISE. Delivery dates are approximate. If Buyer fails to schedule a delivery date with Seller within three (3) months after order entry, Seller may cancel Buyer's order upon written notice to Buyer and Buyer will forfeit and MedCorp will retain any deposit or pre-paid funds.
VI. Title and Risk of Loss. Title to the Equipment passes to Buyer upon delivery at the shipping point. Buyer is responsible for arranging and paying for insurance against property damage or loss until delivery to Buyer.
Seller retains, until Buyer performs all of its obligations hereunder, a security interest and right of title in said Product. Buyer agrees, upon demand by Seller, to promptly execute any security agreement, financing statement, application, registration or other documents necessary and to take any other action deemed necessary or desirable by Seller in order to evidence or perfect Seller’s security interest. Buyer hereby appoints Seller as its attorney-in-fact to prepare, sign and file or record for the Buyer, in Buyer’s name, any such documents. Buyer agrees to keep the Equipment in good order and repair until the full purchase price has been paid. Buyer shall not attempt to transfer an interest in the Equipment until said purchase price has been paid in full.
VII. Pre-Owned/Remanufactured Products. If applicable, Buyer acknowledges that the Equipment was previously owned and used. When delivered to Buyer, the used Equipment may have received mechanical, electrical and/or cosmetic reconditioning, as necessary, and will meet their original specifications if sold refurbished.
VIII. Inspection. The Equipment will have been inspected prior to the sale to verify that the Equipment meets all OEM specifications for image quality and condition. The Equipment shall be deemed to be satisfactory upon certification by the inspector. Buyer shall be deemed to have accepted any nonconforming Equipment unless Buyer notifies Seller within three (3) days of delivery of any such nonconformity.
IX. Acceptance of Equipment. Unless otherwise expressly provided in this Agreement, Buyer shall be deemed to have accepted the Equipment, and each part thereof, on the earlier of:
a) if Seller installs the Equipment, three (3) days after Seller notifies Buyer that it has completed installation; or
b) if Seller does not install the Equipment, three (3) days after delivery of the Equipment to Buyer or Buyer's end-user.
X. Return Policy. If Buyer notifies the Seller within 72 hours of receipt of the goods that the goods received are non-conforming or defective, the Seller shall have commercially reasonable time in which to repair or replace them with conforming goods. If Seller is unable to repair or replace the goods, then the goods may be returned to Seller only after Buyer has obtained a Return Merchandise Authorization number from Seller. No credit will be given for items returned without a Return Merchandise Authorization number. Buyer is responsible for the shipping costs related to the returned goods. Buyer will be charged a minimum 20% fee for all returned goods to cover Seller’s restocking costs and fees, shipping and other expenses incurred by the Seller as a result of this sale. Notwithstanding anything to the contrary contained herein, Buyer acknowledges that unless Buyer strictly complies with the returned goods policy set forth in this paragraph, Buyer’s purchase shall be deemed final and Buyer shall be deemed to have released Seller from (i) any claim for refund or credit, and (ii) any type of damages whatsoever.
XI. Trade - In. If Customer will be trading-in any equipment ("Trade-In"), then:
a) Buyer represents and warrants in a manner acceptable to MedCorp that Buyer has good and marketable title to such Trade-In;
b) Title to the Trade-In shall pass from Buyer to MedCorp upon MedCorp’s receipt of the Trade-In; and
c) Buyer represents and warrants that Buyer has removed or de-identified all Protected Health Information (“PHI”) from the Trade-In equipment as of the date the equipment is removed. To the extent Buyer has not done so, Buyer agrees to reimburse MedCorp for any out-of-pocket costs incurred to remove or de-identify PHI from the Trade-In.
d) If (1) the condition of the Trade-In is not substantially the same when MedCorp removes the Trade-In (ordinary wear and tear excepted) as it was when MedCorp quoted the Trade-In value; or, (2) Buyer delays the removal of the Trade-In, then MedCorp may reduce the price quoted for such Trade-In or cancel the Trade-In and Buyer will pay the adjustment amount within thirty (30) days of receipt of invoice.
e) If MedCorp does not receive possession of the Trade-In, MedCorp will charge Buyer, and Buyer will pay within thirty (30) days of receipt of invoice, the amount of the Trade-In allowance.
f) Evidence that Buyer intends to trade in an asset as part of the purchase or lease of any product(s) shall be in the form of, but not limited to: (a) receiving a trade in quote and/or authorization from MedCorp on the value of the asset to be traded in; (b) providing MedCorp with serial numbers of assets to be traded in; and/or, (c) providing MedCorp with a deinstallation date to remove an existing asset in order to install MedCorp’s quoted equipment.
XII. INDEMNITY. Buyer shall indemnify Seller and its employees, agents, officers, and directors for any claim or loss directly or indirectly attributable to Buyer's acquisition, uses, or sale of the Equipment, except to the extent that such claim or loss is caused by Seller's sole negligence or willful misconduct.
XIII. DISCLAIMER OF WARRANTIES. Other than as specified above, and subject to the inspection period described in VIII above, Buyer acknowledges that the Equipment is sold in “AS IS” condition and without any other warranty express or implied. THE SELLER SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY OR WARRANTY FOR THE PERFORMANCE OF THE EQUIPMENT (INCLUDING HARDWARE AND SOFTWARE PRODUCTS) UNLESS SPECIFICALLY NOTED IN WRITING. SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING THAT THE EQUIPMENT IS FIT FOR A PARTICULAR PURPOSE OR THAT THE EQUIPMENT IS MERCHANTABLE. BUYER AGREES THAT IT HAS SELECTED EACH ITEM OF EQUIPMENT BASED UPON ITS OWN JUDGMENT AND DISCLAIMS ANY RELIANCE UPON ANY STATEMENTS OR PRESENTATIONS MADE BY SELLER.
SELLER SHALL NOT IN ANY CASE BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR OTHER SIMILAR DAMAGES ARISING OUT OF OR RELATING IN ANY WAY TO OR FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE OR ANY OTHER THEORY, EVEN IF SELLER OR ITS AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIABILITY FOR PERFORMAING UNDER ANY MANUFACTURER WARRANTY PROGRAM RESTS SOLELY WITH THE SUBJECT MANUFACTURER AND SELLER HAS NO LIABILITY OR RESPONSIBILITY FOR PERFORMANCE THEREUNDER. THAT SELLER IS NOT RESPONSIBLE FOR ANY COST INCURRED OR AS A RESULT OF LOST PROFITS OR REVENUE, LOSS OF USE OF THE EQUIPMENT, LOSS OF DATA OR THE COST OF ANY SUBSTITUTE EQUIPMENT.
XIV. LIMITATION OF LIABILITY and DISCLAIMER. THE TOTAL LIABILITY, IF ANY, OF SELLER FOR ALL DAMAGES AND BASED ON ALL CLAIMS, WHETHER ARISING FROM BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHER TORT, OR OTHERWISE, ARISING FROM A PRODUCT, LICENSED SOFTWARE, AND/OR SERVICE IS LIMITED TO THE PRICE PAID HEREUNDER FOR THE PRODUCT, LICENSED SOFTWARE, OR SERVICE. THIS LIMITATION SHALL NOT APPLY TO THIRD PARTY CLAIMS FOR BODILY INJURY OR DEATH CAUSED BY SELLER’S NEGLIGENCE.
IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST REVENUES OR PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES WHETHER ARISING FROM BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHER TORT. THIS LIMITATION OF LIABILITY AND EXCLUSION OF DAMAGES SHALL APPLY EVEN IF THE LIMITED REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
XV. Force Majeure. Each party shall be excused from performing its obligations (except for payment obligations) arising from any delay or default caused by events beyond its reasonable control including, but not limited to, acts of God, acts of third parties, acts of any civil or military authority, fire, floods, war, embargoes, labor disputes, acts of sabotage, riots, accidents, delays of carriers, subcontractors or suppliers, voluntary or mandatory compliance with any government act, regulation or request, shortage of labor, materials or manufacturing facilities.
XVI. Copyright Protection. As the Buyer, you have purchased medical Equipment that may contain copyright protected software. This software may be subject to a licensing agreement placing restrictions on its sale and use. It is Buyer’s responsibility to ascertain and comply with any such restrictions contained in any applicable licensing agreement and to avoid violating U.S. copyright law.
XVII. Regulatory Compliance. Seller and Buyer each warrant and represent that it shall comply with all applicable laws and regulations in selling the Equipment and in purchasing and using the Equipment, including, without limitation, U.S. and foreign medical device laws, environmental laws, import/export laws and product safety laws. Buyer acknowledges that the Equipment is a medical device regulated by the U.S. Food and Drug Administration and may only be used by or on the order of a licensed health care provider. If Buyer re-sells the Equipment to a third party, Buyer (a) is responsible for ensuring that the Equipment complies with all applicable regulations; and (b) will indemnify Seller against any damages or costs incurred by Seller that are attributable to Buyer's breach of the terms of this section.
XVIII. Export. Customer shall assume sole responsibility for obtaining any required export authorizations in connection with Customer’s export of the products from the country of delivery.
XIX. Assignment; Binding Effect. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, that either party may transfer and assign this Agreement without the other party's consent to any person or entity that is an affiliate of such party through common ownership or control or that acquires substantially all of the ownership interests or assets of such party's applicable business, if any such assignees agree, in writing, to be bound by the terms of this Agreement. Subject to such limitation, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
XX. Amendment; Waiver; Survival. This Agreement may be amended only in writing signed by both parties. Any failure to enforce any provision of this Agreement is not a waiver of that provision or of either party's right to later enforce each and every provision. The terms of this Agreement that by their nature are intended to survive its expiration will continue in full force and effect after the expiration or termination of this Agreement.
XXI. No Third Party Beneficiary. Unless expressly agreed in writing hereunder, this Agreement shall not be construed to grant to any third party any rights against either party to this Agreement, it being the intention of the parties that this Agreement binds and protects only the specified parties to this Agreement.
XXII. Governing Law; Disputes; Limitation of Liability. This agreement shall be governed by and construed under the laws of the State of Florida. Buyer consents to the jurisdiction of Florida courts and further agrees that the exclusive venue for any matter relating to payment for the Equipment shall be in the courts located in Hillsborough County, Florida. EACH PARTY EXPRESSLY WAIVES ALL RIGHTS TO A JURY TRIAL IN CONNECTION WITH ANY DISPUTE ARISING UNDER THIS AGREEMENT.
XXIII. Validity. If any provision(s) of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.n(s) of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.