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TERMS OF SALE
The terms and conditions of this invoice apply to all (“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. 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”).
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. Any invoiced amount remaining unpaid after thirty (30) days shall be "past due." Past due balances are subject to a service 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 hereunder, (ii) change any payment term (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 under this Agreement 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.
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 the 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, Risk of Loss and Title. 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 the vendor’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 the vendor, 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. Orders are subject to Seller’s minimum order requirement in effect 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 such Buyer (“Equivalency Recommendations”).
By Buyer’s use of the Equivalency Recommendations or acceptance of any Equivalency Recommendations, such Buyer agrees and stipulates that Seller relies solely on the independent skill, knowledge and judgment of suppliers or others in the industry to make the Equivalency Recommendations. Such Buyer agrees and stipulates that Seller does not and will not independently provide medical product information upon which such Buyer bases a product selection decision and in making product decisions such Buyer is relying on its independent professional judgment. Such Buyer hereby agrees to waive, release, indemnify and hold Seller and its affiliates harmless from any claim arising from an Equivalency Recommendation. Such 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 THE VENDOR AND OTHER INDUSTRY– AVAILABLE INFORMATION.
7. Data. Buyer acknowledges that Seller will provide information and reports to group purchasing organizations, vendors, 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 such group purchasing organizations, vendors, 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:
All requests for return of Products must have a return authorization number issued by Seller customer service department.
All returned Products must be: (i) returnable to vendor; (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.
Products that are: (a) special order Products; (b) custom Products; or (c) Products not available for general or unrestricted distribution are not returnable.
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.
Products shipped in error by Seller and nonconforming Products – FULL CREDIT – if returned within thirty (30) days of date of invoice.
Products shipped that are damaged or do not meet Seller standard quality – FULL CREDIT – if returned within thirty (30) days of date of invoice.
Locally stocked Products returned within thirty (30) days of date of invoice – FULL CREDIT.
Locally stocked Products returned after thirty (30) days of date of invoice – 15% RESTOCKING CHARGE.
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 vendor).
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 any party is unable, wholly or in part, by reason of an act of God 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.
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 THE VENDOR 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.
BUYER SHALL NOT HOLD SELLER LIABLE FOR ANY DEFECT IN PRODUCTS OR SERVICES, REGARDLESS OF KIND. BUYER AGREES TO FILE SOLELY WITH THE VENDOR 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, 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. Cancellation. Seller reserves the right to cancel all or any part of this order if Buyer fails to make timely payment hereunder or under any other invoice to Buyer; becomes insolvent or unable to pay its debts as they come due; or causes Seller to be insecure.
16. 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.
17. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without any construction or interpretation against Buyer or Seller. Buyer and Seller irrevocably consent to the exclusive jurisdiction of the state courts of Henrico County, Virginia and the federal courts situated in Richmond, Virginia, 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.
Additional Terms and Conditions of Sale for Equipment.
In addition to the terms above, the following shall apply to any Equipment purchases:
18.1. Contract Terms. Seller objects to any additional or different terms, including any terms contained in any purchase order, receipt, acceptance, confirmation, correspondence or otherwise. Equipment may contain new, used, or refurbished parts and components. Buyer acknowledges that this is a commercial and not a consumer transaction.
18.2. Acceptance. Acceptance of an order shall be binding on Seller only after credit approval and acceptance by Seller at its corporate offices. Acceptance is expressly made conditional to Buyer's acceptance of the terms of this Agreement.
19.1. Quotations. Buyer shall be responsible for payment of freight, handling and packaging fees. Unless otherwise stated, such prices are firm for sixty (60) days from the date of a quotation.
19.2. Delay in Acceptance of Delivery. Should the agreed delivery date of Equipment be postponed by Buyer, Seller shall have the right to deliver Equipment to a storage area at Buyer's risk and expense, and payments due upon delivery shall become due when Seller is ready to deliver to such storage area.
19.3. Escalation. Unless otherwise agreed to in writing, except for Equipment to be delivered within ninety (90) days of Seller’s acceptance of Buyer's order, Seller reserves the right to increase its prices to those in effect at the time of shipment.
20. TERMS OF PAYMENT.
20.1. Payment is Due Upon Installation. Should any special terms or payment provide for either full or partial payment upon installation or completion of installation or thereafter and the installation or completion is delayed for any reason for which Seller is not responsible, the Equipment shall be deemed installed upon delivery, and if no other terms were agreed upon in writing signed by the parties, the balance of payments shall be due no later than thirty (30) days from the date of delivery regardless of the actual installment date.
21. DELIVERY DATE. Delivery and completion schedules are approximate only and are based on conditions at the time of acceptance of Buyer's order.
22. SECURITY INTEREST/FILING. Seller shall have a purchase money security interest in the Equipment (and all proceeds thereof) from the point that title passes to Buyer and until payment in full by Buyer is received. Buyer hereby authorizes Seller to file, and irrevocably appoints Seller its agent and attorney-in-fact to execute Buyer's name and file, all U.C.C. financing statements deemed necessary by Seller to protect its interest in the Equipment and the terms of this Agreement.
22. DESIGNS AND TRADE SECRETS/LICENSE.
22.1. Any drawings, data, designs, software programs or other technical information supplied by Seller to Buyer in connection with the sale of Equipment shall remain Seller or the licensor’s property and be held in confidence by Buyer. Such information shall not be reproduced or disclosed to others without Seller’s prior written consent.
22.2. Subject to the payment of any applicable annual license fee(s) and to Buyer’s compliance with all of the obligations set forth herein, Seller or, if applicable, its licensor or supplier, hereby grants to Buyer a paid-up, nonexclusive and nontransferable (except as expressly provided in the terms of this Agreement) limited license to use the software provided by Seller under the terms of this Agreement solely for Buyer’s own use on the applicable Equipment and to use the documentation in support of Buyer’s authorized use of the software, for the purpose of operating the applicable Equipment in accordance with the instructions set forth in the user’s manual supplied with Equipment and for no other purpose whatsoever. A separate license is required for each Equipment on which the software is to be used. Buyer may make the software and documentation (including any copies) available only to its employees and other persons on Buyer’s premises to whom such disclosure is necessary to enable Buyer to use the software or documentation within the scope of the license provided in the terms if this Agreement.
22.3. Ownership of and title to the software and documentation and all copies, in any form, licensed under the terms of this Agreement are and will remain in Seller or its licensors or suppliers at all times. Buyer shall not: (i) remove any copyright, trade secret or other proprietary right notices contained on or in the software or documentation as provided by Seller; (ii)reproduce or modify any software or documentation or copy thereof; (iii) reverse assemble, reverse engineer or decompile any software, or copy thereof, in whole or in part (except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation); (iv) sell, transfer or otherwise make available to others the software or documentation, or any copy thereof, except as expressly permitted by the terms of this Agreement; or (v) apply any techniques to derive any trade secrets embodied in the software or documentation. In the event that Buyer becomes aware that any software or documentation or copies are being used in a manner not permitted by the license, Buyer shall immediately notify Seller in writing of such fact and shall use reasonable efforts to terminate such impermissible use. Buyer will fully cooperate with Seller or its licensors so as to enable Seller or its licensors to enforce its proprietary and property rights in the software. Buyer agrees that Seller or its licensors shall have immediate access to the software at all times and that Seller or its licensors may take immediate possession thereof upon termination or expiration of the associated license or the terms of this Agreement. Buyer’s obligations under this Section 28.3 shall survive any termination of a license or the terms of this Agreement.
24. WAIVER OF JURY TRIAL. THE PARTIES HERETO WAIVE ALL RIGHTS TO A JURY TRIAL IN ANY LITIGATION ARISING FROM OR RELATED IN ANY WAY TO THIS AGREEMENT, OR THE TRANSACTION CONTEMPLATED HEREBY.