These Terms and Conditions of Sale (“Terms”) apply to the sale by MDE Medical LLC (“Company”) to the buyer (“Buyer”) of medical and surgical products and services (“Product” or “Products”), unless otherwise agreed in writing by Company, these Terms will supersede all prior terms and conditions regarding the purchase by Buyer and sale by Company Products. Company reserves the right to further modify these Terms from time to time (the “Modified Terms”) either upon written notification to Buyer by U.S. Mail, electronic mail or by posting any changes on the Company website (www.HemBand.com) (the “Company Website”), with the most current Terms on the Company Website and the Effective Date of these Terms to be at the time Buyer thereafter places a Purchase Order. BY ACCESSING OR USING ANY PART OF THE WEBSITE OR PLACING ANY PURCHASE ORDERS, BUYER AGREES THAT BUYER HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY THESE TERMS AND ANY MODIFIED TERMS, INCLUDING THE DISPUTE RESOLUTION PROCEDURES. IF BUYER DOES NOT AGREE TO BE SO BOUND, BUYER SHOULD NOT ACCESS OR USE THE WEBSITE OR PLACE ANY PURCHASE ORDERS.
Company reserves the right to change, without prior notice, the design, construction, and type of materials used in the manufacture of any of its Products. Company further reserves the right to discontinue, without prior notice, any of its Products and/or replacement parts therefore. Company may further change the prices of its Products at any time and without prior notice unless otherwise agreed in writing by Company to expressly provide prior notice to Buyer. Company will make reasonable effort (but not required) to provide advance notice when possible. Company`s Prices and rates exclude taxes, duties, and are without discount unless or otherwise agreed in writing by Company. Company cannot confirm the availability or price of a Product until Buyer place an order. Despite Company’s best efforts, sometimes a Product in Company’s catalog may not be available, the offer may have been misstated, or an item may be mispriced. For any of these reasons, Company may cancel your order or Company may contact Buyer for instructions on the order.
Buyer must pay for all Products in accordance with the payment terms set forth on Company’s invoice or order confirmation unless otherwise agreed in writing by Company. The date of receipt of a payment by Company shall determine whether this deadline has been met. Any overdue payments shall bear interest at a rate equal to the lesser of: (i) 1.5% per month (18% A.P.R.), or (ii) the maximum amount permitted by law, assessed from the day payment was initially due. In the event Buyer fails to make a payment when due, Buyer shall pay all reasonable costs of collection, including reasonable attorneys’ fees.
Buyer agrees to pay a $25.00 service charge on any returned check. Company reserves the right to institute a fee to be paid by Buyer for using a credit or debit card to pay for product. In the event that Company does start to charge Buyer a fee for paying for product by credit or debit card Company will notify Buyer in advance, within a reasonable period of time, of said charges. If a payment is not made in accordance with the applicable payment terms, Company may suspend all further deliveries, or require full or partial payment in cash, in advance, on new orders. All prompt pay discounts must be taken at the time of payment of the invoice, with no backdating allowed. Credit card payments will not apply to or be eligible for prompt pay discounts. Unless specifically directed to the contrary, all payments will be applied to the oldest unpaid invoice first.
The Products will be shipped “F.O.B. shipping point,”. Company has the right to determine the carrier, method and routing of shipment. Time for delivery is not of the essence. All shipping damage claims must be made directly to the carrier. The applicable freight and handling terms for each order shall be posted on the order form.
The Shipping and Delivery rates mentioned on the order form or published elsewhere on Company documents and website are minimum shipping rates for that shipping method and carrier. Actual Shipping costs vary depending on a variety of factors, from package measurements, shipment type, weight, location, and more. Once these variables are calculated, Company will put a price on your shipment. Some shipping carriers does not deliver to PO Box/APO address. Also, carrier service restriction applies. Company does not provide or commit Saturday or Sunday Delivery. All orders placed after 1pm EST will be processed the next business day.
Company reserves the right to make delivery in instalments.
Buyer will inspect the Products promptly upon receipt for non-conformity for quality, quantity, and damages. Buyer should give a notice to Company for any non-conformity related matter no later than 7 (Seven) business days following its date of delivery. If Buyer has not given notice within such time period, Products shall be deemed accepted by Buyer at the end of the Seventh (7th) business day. Use of the Products, or failure to reject for non-conformity within 7 days of receipt, will not constitute a breach of Buyer’s entire purchase order, and any subset of Products on a purchase order Buyer does not dispute will be paid for in accordance with these Terms.
Cancellations or changes to orders by Buyer require Company’s prior written consent. Only products originally purchased from Company or from an authorized supplier (drop-ship) will be considered for return to Company. Products have a return period of up to (30) days from the date of purchase. For a return to be processed, Buyer must request a Return Material Authorization (“RMA”). Any return must be in the original packaging and in unused condition except if approved for failure analysis/warranty evaluation by a Company via RMA. All Approved Returns must be shipped at Buyer’s cost. Product returns which are not Approved Returns, not prepaid, or not otherwise consistent with the Company’s Return Policy will not be accepted by Company.
Company gives a warranty on its Products against defects in materials and intended workmanship under normal use and service conditions for a period until expiration date displayed on the product label. Company will, at his discretion, either repair the defective Product or supply a replacement against the return of the defective unit. Company is not liable for any other costs or loss of business however incurred, in particular Company is not responsible for any misuse of the products by the Buyer. This warranty becomes void if the Products are mishandled or damaged by malpractice or not used according to instructions or used other than for its indicated use.
IN NO EVENT, WHETHER BASED ON BREACH OF WARRANTY OR CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR ANY OTHER LEGAL THEORY, WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS TERMS AND CONDITIONS OF SALE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING FOR, WITHOUT LIMITATION: DELAYED SHIPMENT,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; OR THE CLAIMS OF THIRD PARTIES, INCLUDING BUYER’S CUSTOMERS.
Buyer agrees to indemnify, defend and hold Company and its parent, subsidiary, or affiliated companies (“Affiliates”), shareholders, directors, officers, employees, agents and assignees harmless from and against any expenses incurred by or claims made against Company arising out of any negligent actions of Buyer including but not limited to the maintenance, repair or alteration of any Product, or the improper assembly or incorporation of the Product into any other device, actual or alleged breach or violation of any contract, law, rule, regulation, or by-law; libel, slander or other form of defamation; breach of any provision of these Terms; and acts, errors or omissions of Buyer or any of its agents, servants, employees, contractors, partners, shareholders, Affiliates or representatives. For purposes of this indemnification, the term “expenses or claims” shall mean and include (i) all losses, obligations, expenses, actual and consequential damages, taxes and costs reasonably incurred in preparing for, defending or settling any demand, investigation, suit, action, claim, inquiry or proceeding, whether or not a formal inquiry, proceeding or investigation had been commenced; and (ii) reasonable accountants’, legal and expert witness fees, costs of investigation and proof of facts, court costs, other litigation expenses and travel and living expenses. Buyer shall give Company immediate written notice of any demand, investigation, inquiry, action, suit, proceeding or claim. Company at its sole option shall have the right to defend at Buyer’s expense any such liability or claims in which either Company or Buyer or both are named as defendants, or reasonably are expected to be named, and Sunrise shall not be obligated to mitigate losses. Company’s conduct of the defence shall not diminish Buyer’s obligation to indemnify Company hereunder. This indemnity shall continue in full force and effect subsequent to and notwithstanding any termination of these Terms.
Company shall not be liable for any damage as a result of any delay in performance or nonperformance due to any cause beyond Company’s reasonable control, including, without limitation, an act of God, act of the Buyer, delays caused by Company’s suppliers or subcontractors, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown, war, riot, delay in transportation, or inability to readily obtain necessary labor, materials or manufacturing facilities.
Buyer may become familiar with trade secrets and confidential information of Company which derive independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from their disclosure or use (“Confidential Information”). Buyer agrees not to disclose or utilize any Confidential Information, including without limitation, Product specifications, prices, discounts, manufacturing costs, ideas, technical data, customer lists and sales reports to which Buyer has been privy. Buyer agrees not to disclose quotes, price, discounts and rebates received from Company is solely for Buyer and is consider a confidential information. Buyer should not disclose such information to others.
Nothing in these Terms is intended to benefit any person or entity other than Buyer and Company.
These Terms, and any related claims or disputes, will be governed by laws of the Delaware State, without giving effect to its principles of conflict of laws. Any claim or legal action arising under these Terms will be commenced and maintained in the state or federal court located in the Delaware State. The Parties agree to appear and consent to such jurisdiction, and waive any objections as to venue. Both Parties waive their respective right to a trial by jury in any actions relating to Products purchased under these Terms.
If any clause or portion of these Terms is held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining clauses or portions will remain in full force and effect.