GenX Medical LLC Standard Terms and Conditions of Sale
1. INTERPRETATION. In these terms and conditions “the Company” means GenX Medical, LLC, the “Buyer” means the party with whom the Company is contracting and “goods”, where the context so permits and requires, means the goods and/or services which the Company contracts to supply and/or to provide and “Conditions” means the following terms and conditions of sale.
2.THESE CONDITIONS APPLY. Unless the Company shall otherwise expressly agree in writing, every offer, tender, quotation, acceptance and contract for the sale or supply of goods, including services ancillary thereto, by the Company is made subject to these conditions and all other terms and conditions proposed by the Buyer are expressly excluded. No modification of these terms and conditions shall be effective unless reduced to writing and signed by a person duly authorized by the Company. No binding contract shall be created by the acceptance of a quotation or offer made by the Company until notice of acceptance of the order in writing signed by a person duly authorized shall have been given to the Company by the Buyer.
3. PRICES. All prices are FOB Company’s facility unless otherwise stated. Prices quoted by the Company excludes sales, use, excise or other taxes, customs duties, insurance, and any other fees or charges imposed by any governmental authority, all of which will be paid by Buyer in addition to the price quoted. If the Company is required to pay any such tax, fee, or charge, the Company may invoice Buyer for the amount paid. Buyer shall pay any required withholdings on the purchase price so that the net amount received by the Company is the full purchase price quoted.
4. INVOICING AND PAYMENT
4.1 The Company will be entitled to invoice the Buyer on the date on which the goods are dispatched. If the Company agrees at the request of the Buyer to defer delivery of any goods or suspends delivery of any goods in accordance with condition 4.2 or extends the delivery in accordance with condition 4.2, the Company will be entitled to invoice the Buyer for such goods on the date on which they would otherwise have been due for dispatch.
4.2 Unless the Company notifies the Buyer otherwise, payment is due, whether or not title to the goods has passed to the Buyer, net 30 days.
4.3 Unless otherwise expressly agreed in writing by the Company, payment in full without discount shall be made in U.S. Dollars and the Buyer shall not be entitled for any reason to withhold payment of the amount shown on the invoice as due.
4.4 Payment is made and received only at the time when cash is handed to a duly authorized representative of the Company who issues an official written receipt therefore, or when any check or draft sent or delivered to the Company is cleared and/or the Company’s bank account credited with the relevant amount, and not at any earlier time.
4.5 The Company reserves the right to charge interest at the rate of one and one-half percent (1.5%) per month, or portion thereof, compounded monthly, or the maximum amount permitted by law, whichever is less, on all overdue accounts from the due date until the date of actual payment.
4.6 Failure to make payment on due date shall constitute a breach of contract and without prejudice to any other rights which it may have against the Buyer the Company may suspend all further deliveries of goods under all contracts then in existence between the Company and the Buyer until payment of all sums payable by the Buyer under that contract and of all other sums then due and payable to the Company by the Buyer has been made in full, and/or may terminate the contract.
5. DELIVERY AND INSPECTION
5.1 Although the Company will make every effort to deliver on the agreed date, time for delivery is not of the essence of the contract. Any quoted delivery date or period is a business estimate only. The Company shall be not liable for any loss or damage whatsoever caused by delayed delivery of goods. Delay in delivery will not entitle the Buyer to rescind the contract.
5.2 If any carrier of any consignment of goods receives an unqualified receipt therefore by or on behalf of the Buyer, the Company shall have no liability to the Buyer for loss of or damage in transit to such goods or for mis-delivery or non-delivery thereof.
5.3 The Company reserves the right to provide the quantity ordered +/- 10% and invoice Buyer for the amount shipped.
5.4 Buyer will inspect the goods promptly upon receipt and notify the Company in writing within seven (7) days of such receipt if any items or components were not included in the shipment. Failure to give such notice will constitute a waiver of any claims of shortages.
6. FAILURE TO TAKE DELIVERY
6.1 If goods are ready for delivery and the Buyer fails to take delivery at the time required by the contract the Company shall be entitled to invoice such goods forthwith; and to charge at rates giving an economic return for the handling and storage of such goods, and for their insurance, from the date of invoice to the date when the Buyer takes delivery or the Company disposes of the same.
6.2 If the Buyer fails to take delivery within thirty days of date of invoice it shall be deemed to have repudiated the contract and without prejudice to any other right which it may have against the Buyer, the Company shall be entitled to resell the goods.
7. WARRANTY AGAINST DEFECTS
7.1 The Company warrants that at the time when they are ready to leave the premises of the Company and for 3 months thereafter, all goods correspond with their specification and are free from defect in material and workmanship, provided that the Company’s liability under this warranty shall be limited to either, at the Company’s discretion, replacement or repair of goods free of cost to the Buyer or payment by the Company to the Buyer of an amount not exceeding the original purchase price of the goods in respect of which notice of the defect is given to the Company within ten (10) days of the date of invoice and which are returned to the Company, within seven days of the Buyer first becoming aware of the defect, with freight prepaid.
7.2 The warranty contained in condition 7.1 above is given in lieu of and shall be deemed to exclude all other warranties and conditions whether express or implied and whether arising by common law, statute or otherwise other than relating to title to the goods.
7.3 The warranty contained in condition 7.1 above does not apply to and the Company accepts no responsibility for defects in goods which have been tested in accordance with the Buyer’s express contractual requirements and have satisfied such tests.
7.4 Unless otherwise expressly agreed by the Company the warranty contained in condition 7.1 does not apply to and the Company accepts no responsibility for:
7.4.1 damage occurring in transit;
7.4.2 goods which have suffered or been subject to use otherwise than in accordance with the instructions or advice of the Company or undue wear and tear, accident, misuse, improper application, neglect or overloading; or
7.4.3 goods which have not been operated and maintained in accordance with written operation and maintenance instructions supplied by the Company.
7.5 The Buyer shall not rely upon any representation concerning any goods supplied unless the same shall have been made by a person authorized by the Company in writing. All warranties regarding the goods are contained in this condition.
7.6 THE COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND REGARDING THE PRODUCTS TO BUYER OR ANY OTHER PERSON OR ENTITY, AND ALL OTHER WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES OTHERWISE IMPLIED BY A COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE, ARE HEREBY DISCLAIMED AND EXCLUDED TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW.
8.1 Risk in the contract goods shall pass to the Buyer on delivery FOB the Company’s facility.
9. LIMITATION OF LIABILITY
9.1 Except as otherwise expressly provided in these conditions, the Company shall be under no liability in respect of the quality, condition or description of the goods or for loss or damage, and in no event shall be liable for any special, incidental, indirect, exemplary or punitive damages, or consequential damages (such as lost profits) EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER A CONTRACT, TORT, WARRANTY, OR OTHER LEGAL THEORY. IN NO EVENT WILL THE COMPANY’S TOTAL LIABILITY TO PURCHASER RELATING TO THE PRODUCT OR ITS USE EXCEED THE AMOUNT PURCHASER PAYS THE COMPANY FOR THE PRODUCT.
10. INDEMNITY BY BUYER. The Buyer shall indemnify the Company against all liabilities costs and expenses which the Company may incur by reason of any claim by any subsequent purchaser or user of the goods or of any product incorporating the goods or by reason of any claim by any relative or dependant of such purchaser or user arising from any defect or alleged defect in the goods or in such product except and to the extent that such liabilities, costs and expenses arise from a breach by the Company of its obligations under these conditions, in which event the Company’s liability shall be limited as provided herein.
11. RETURNED GOODS
11.1 No contract for goods ordered may be cancelled by the Buyer, and except as otherwise provided in these conditions, no goods may be returned without the prior written consent of the Company.
11.2 If the Company agrees to accept return of any goods the Buyer shall be obliged to effect the return of such goods in good condition and at its own risk and cost, and such returned goods shall be returned in packaging which are undamaged and which have not been opened since their dispatch by the Company.
12. HEALTH AND SAFETY
12.1 The Company is not responsible for any product sold, and the Buyer must make its own determinations of its suitability and usability. The Company takes no responsibly of the functionality of the design, and Buyer is responsible to conduct proper testing.
12.2 The Buyer shall be solely responsible for biocompatibility of the product and should conduct their own testing if necessary.
13. EXPORT. In the case of any goods to be exported from the U.S., the Buyer is responsible for obtaining import authorizations, and the Company shall have no obligation to dispatch the goods unless and until the Buyer has provided all documentation and information necessary for export and import of the goods to be effected.
14. TECHNICAL DATA. While every effort has been made to ensure the accuracy of any technical data provided to the Buyer, the Company accepts no liability arising from errors or omissions therein. Illustrations, photographs, weights, dimensions and descriptions are illustrative and for general guidance and do not form the basis of any sale by description. Performance figures quoted by the Company for its products are similarly illustrative and for general guidance, are based upon experience and are not warranted.
15. FORCE MAJEURE. The Company shall not be liable for failure to comply with any of its obligations under the contract in the event that compliance is delayed or prevented by any cause whatsoever beyond its reasonable control, including, but not limited to, war, riot, strike, lock-out, act of God, storm, fire, earthquake, explosion, flood, confiscation, action of any government or government agency or shortage. Deliveries or other performance may be suspended for an appropriate period of time or cancelled by the Company upon written notice to Buyer in the event of a Force Majeure.
16. NOTICE. Any notice under the contract shall be in writing sent by first class prepaid postage or facsimile transmission confirmed by first class prepaid postage. Any notice to the Company shall be addressed to the Company at its registered office and to the Buyer at the address notified by the Buyer to the Company for that purpose or if none is so notified to the address of the Buyer last known to the Company.
17. GOVERNING LAW; VENUE. These conditions and the contract shall be subject to and construed in accordance with U.S. law and the law of the state of Tennessee, and the parties hereby agree to accept the exclusive jurisdiction of the state and federal courts located in Hamilton County, Tennessee, U.S. in all matters connected therewith or relating thereto.
18. Proprietary Rights. Unless otherwise specifically agreed in writing and signed by both parties, the Company retains all proprietary rights in and to the manufacturing process and in any modifications or improvements to the manufacturing process that may result from suggestions or input from Buyer, including but not limited to rights under patent, copyright, trademark and trade secret laws, in all jurisdictions.
19. Confidentiality. If any Confidential Information of the Company is disclosed to Buyer in the course of providing Services to Buyer or by the Company rendering technical support or otherwise, Buyer agrees that it will (i) use the Confidential Information only in connection with its internal use of the goods, and (ii) hold the Confidential Information in confidence and not disclose it to any third party. As used above, the term “Confidential Information” means information that is designated by the Company as confidential, or that should otherwise be understood to be confidential due to its nature. Confidential Information does not, however, include information that (i) is or becomes public knowledge without the fault of Buyer, (ii) Buyer rightfully obtains from a third party without restriction on use or disclosure, (iii) Buyer can document was independently developed by it without use or access to the Company’s Confidential Information, or (iv) Buyer can document was previously known to it prior to receipt of the Company’s Confidential Information.
20. Export Regulations; Anti-boycott Laws; Foreign Corrupt Practices Act. Buyer acknowledges and agrees that the Products may be subject to US export control laws and regulations, including without limitation, Export Administration Regulations and International Traffic in Arms Regulations. Buyer shall not, and shall not permit any third parties to, directly or indirectly, export, re-export or release any Products to any jurisdiction or country to which, or any party to whom, the export, re-export or release of any Products is prohibited by applicable federal or foreign law, regulation or rule. Buyer shall be responsible for any breach of this Section by its, and its successors’ and assigns’, parent, affiliates, employees, officers, directors, equity holders, customers, agents, distributors, resellers or vendors. Buyer shall comply with all applicable federal and foreign laws, regulations and rules, and complete all required undertakings (including without limitation, by obtaining any necessary export license or other governmental approvals), prior to exporting, re-exporting or releasing any Products. Buyer will execute and deliver to the Company such letters of assurance as may be required under applicable export regulations. Buyer shall comply with all US antiboycott laws and regulations, including, but not limited to, the Export Administration Act and the Internal Revenue Code (collectively, “Antiboycott Laws”). Buyer shall, and shall cause its Representatives to, comply with the Foreign Corrupt Practices Act of 1977, as amended (“FCPA”), including maintaining and complying with all policies and procedures to ensure compliance with the FCPA. Buyer shall indemnify and hold harmless the Company against any loss related to Buyer’s failure to comply with this Section.
21. Security Interest. The Company is hereby granted a security interest in any goods produced by the Company on behalf of Buyer, and the proceeds thereof, to secure payment of the purchase price and any other amounts that become due.
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