Unless otherwise providing in writing, these terms and conditions (“Terms”) exclusively govern the sale by Med Rep Pro, LLC (“MRP”), and the purchase and order by buyer (“Buyer”), of the goods (“Goods”) and/or services (“Services”, and collectively with Goods, “Products”) identified on the attached or accompanying quote page (“Quote”), (these Terms, together with the Quote, comprise and hereinafter are referred to as the “Agreement”). MRP shall not be bound by, and specifically objects to, any terms, conditions, or other provisions, both written and oral, which are different from, in addition to or inconsistent with the provisions of this Agreement, which is set forth in any purchase order, receipt, acceptance, confirmation, correspondence, or otherwise of, or by, Buyer. Fulfillment of Buyer’s order shall not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend the terms and conditions contained herein.
- PRODUCT AVAILABILITY. Products offered for sale are subject to availability. MRP shall not be liable in case of stock outage or unavailability of Products. MRP reserves the right to change the products offered for sale at any time and without notice. Availability of products may be determined when an order is placed, and if unavailable, MRP shall inform Buyer, offer the sale of a Special Order Product, offer another available product as substitution, or cancel the order. Such cancelled orders shall be refunded except for a Special Order (defined in Section 8(b)) which cannot be cancelled once the order is placed.
- PRICES. A quoted or published price is an offer for sale or completed sale only when Buyer signs a MRP sales agreement and it is accepted by MRP at its headquarters. All quoted and published prices may be changed at any time without notice. Unless otherwise stated on the Quote, written quotations automatically expire 10 days from the date issued. Prices do not include taxes, shipping, freight, duties, or other charges, which Buyer must pay unless waived in writing by MRP or a valid tax exemption certificate is provided.
- TERMS OF PAYMENT. Unless otherwise agreed on the Quote or in writing by MRP, prepayment in full is required, by bank transfer, cash, credit card, or certified check, and where partial prepayment is permitted, it shall be nonrefundable with balance due net 30 days from the date of invoice. MRP reserves the right to modify or revoke any credit previously extended. Past due balances shall be subject to a service charge of 1.5% per month, not to exceed the maximum amount permitted by applicable law. Buyer agrees to pay all fees, charges, or other sums payable hereunder, including collection fees incurred, with no right of set-off or reduction of any nature unless approved in writing by a MRP corporate officer (“MRP Officer”).
Buyer hereby grants, and MRP reserves, a purchase money security interest in each Good purchased, and in any proceeds thereof, until Buyer has paid in full in accordance with the terms hereof. Buyer shall cooperate fully with MRP to execute such documents and accomplish such filings and/or recordings as MRP may deem necessary for the protection of its interests in the Goods furnished to Buyer, and in the event Buyer does not aid within a reasonable time after MRP asks Buyer to do so, Buyer hereby authorizes and appoints MRP as Buyer’s attorney-in-fact to execute, deliver and file at any time, any financing statement and/or take any other action permitted by applicable law to perfect, enforce, continue and amend, MRP’s security interest in any jurisdiction deemed appropriate by MRP.
Buyer agrees that, upon non-payment of any charges due to MRP, MRP may cancel or delay delivery of Products and/or suspend any applicable service coverage, which may resume only when MRP receives full payment, and the warranty period will continue to run during such time of non-payment although warranty service will not be available.
- SHIPMENT AND DELIVERY. Delivery dates are estimated, and partial deliveries are allowed. Buyer must pay shipping and delivery expenses unless otherwise agreed by a MRP Officer. MRP neither will assume any liability if it selects the shipping methods nor implicate any carrier as MRP's agent. “Time is of the essence” terms will not apply to orders accepted by MRP. Title and risk of loss of a Good shall pass to Buyer, and delivery shall be deemed completed, when the Good is delivered to Buyer’s address. All shipments are insured for the benefit, and at the expense, of Buyer. Should loss or damage in transit occur, Buyer’s payment obligations will not be affected. Buyer is liable for all costs for MRP's holding or storing of Goods if delivery is delayed by Buyer or at its request. If delivery is delayed over 30 days, MRP may, at its option, upon notice to Buyer, cancel that and all future deliveries without further liability or obligation of any kind.
- FORCE MAJEURE. MRP shall not be responsible for delays or failure to render or service any Good due to any cause beyond MRP’s control, including, but not limited to, unavailability of labor, carriers, raw materials, power, or supplies, earthquake, flood, fire, strikes, epidemic, acts of God or the public, terrorist threats or acts, war, government law, rules, or regulations, acts of any government or agency thereof, judicial action, civil disorder, or curtailment of transportation facilities. Any delivery date may be extended, at MRP’s option, to the extent of any delay resulting from any such event.
- ACCEPTANCE; INSPECTION. Except for International Products and Special Order Products, Buyer shall inspect all Goods upon delivery and within 48 hours of delivery to Buyer shall give written notice to MRP of any error or claim that a Good does not conform to the terms of this Agreement; any claims not made within that period shall be deemed waived and released, with the Good being accepted by Buyer. Except as provided by Sections 6 and 7 hereof, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to MRP. Subject to the warranty set forth in Section 8(c)(iii), Services are deemed to be accepted by Buyer upon completion of their performance by MRP.
- CANCELLATION CHARGES AND RETURNED GOODS POLICY. Returns and cancellations are not permitted without written approval by a MRP Officer (to be made in its sole discretion.) If approved, MRP will issue a return merchandise authorization number (“RMA”) which Buyer must include in the returned packaging, and Buyer must pay MRP either a (a) 20% restocking charge on the purchase price of the item if Buyer’s written request for return or cancellation is received by MRP’s headquarters after MRP’s original shipment of the Good or (b) a 10% cancellation damages charge if Buyer’s request was received before said shipment. Said charges are agreed upon, not as a penalty, but because of the difficulty of computing actual damages, and until the applicable said charge is paid and goods have been received back to MRP in new working condition, no refund will be given. This document or copies thereof may be filed with the appropriate authorities as a financing statement to pursue such charges. In no case will shipping and freight costs be refunded.
Removed, replaced, or substituted goods and parts (“returned equipment”) shall become MRP's property with title and ownership transferring to MRP upon the earlier of its return to or replacement, with MRP owing no other obligations on the returned equipment. Buyer hereby agrees to defend, hold harmless and indemnify MRP Indemnitees from any claims, costs, losses, attorneys’ fees, and expenses related to any third party attempts to claim ownership of the returned equipment or dispute any trade-in, removal, substitution, or replacement. and the remaining provisions shall continue in full force and effect.
- WARRANTY
(a) NO WARRANTY IN GENERAL. UNLESS STATED OTHERWISE ON THE QUOTE OR IN A WRITING APPROVED BY A MRP OFFICER, BUYER AGREES THAT THE GOODS SOLD IN THIS SALES AGREEMENT ARE BEING SOLD ON AN "AS IS", "AS AVAILABLE" BASIS, SUBJECT TO SECTIONS 9 AND 10 HEREIN, AND HAVE NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER IMPLIED OR BY LAW, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, NON-INFRINGEMENT, WORKMANLIKE MANNER, QUALITY, ACCURACY, TITLE, AND/OR IMPLIED FROM A COURSE OF DEALING OR PERFORMANCE USAGE IN TRADE.
(b) INTERNATIONAL PRODUCT; SPECIAL ORDER PRODUCT. If this Agreement includes the either (i) the sale of any Good, whether a new, pre-owned, or used one, to or for a Buyer outside of the U.S.A. (an "International Product") or (ii) the sale of a Product that MRP does not have or keep in stock but is acquired from a third party specifically for Buyer (“Special Order Product”), then Buyer agrees that (i) Buyer at its sole discretion has made the selection of such Product, (ii) such Product is being acquired by MRP solely at the request of Buyer, (iii) no representation, warranty, or guarantee has been made by MRP with respect to such Product, (iv) the obligation of Buyer to pay MRP for such Product is absolute and unconditional, and (v) Buyer waives and releases MRP from all claims, damages, and losses arising out of such Product. Neither an International Product nor a Special Order Product carry any right to inspection before or after delivery, and MRP is not responsible for examining or evaluating such Products. MRP makes no warranty about International Products, Special Order Products, and offerings of the third party (including description of the Product). MRP does not assume any responsibility or liability for the actions, product, and content of all these and any other third parties. If there are any problems with a Special Order Product, Buyer must contact the manufacturer for assistance. Buyer may contact MRP for issues involving International Products.
(c) LIMITED WARRANTIES, IF ANY.
(i) Notwithstanding 8(a) and 8(b) of this Agreement, should the Quote of this Agreement specify that a Good has a warranty for a certain time (“Warranty Period”), then MRP warrants that such Good shall be in good working order under normal use for the greater of either the Warranty Period written on the Quote or 30 days, which shall commence from the date of delivery to Buyer (“Delivery Date”), unless otherwise approved by a MRP Officer in writing), except for the following:
(A) Consumable/disposable goods are warranted to have been shipped from MRP in functional condition, and no additional warranty shall apply. No service shall be provided either. These items should be inspected for obvious damage, subject to Section 6 and 8(e), to which MRP’s obligation is limited only to replacement of Goods; and
(B) New (not used or pre-owned) goods that are serviced by the manufacturer: MRP makes no warranty for any such Goods unless expressly written in the Quote. Buyer’s sole warranty for any third-party products, if any, is the original manufacturer’s warranty, which MRP agrees to pass on to Buyer, as applicable.
For the limited warranties of this section 8(c)(i), excluding 8(c)(i)(A) and 8(c)(i)(B), Buyer is entitled to telephone, e-mail, and video technical assistance by MRP and, subject to Sections 8(d) and 8(e), repair or replacement of such Goods, in MRP's sole discretion, should the Good become inoperative through normal use during the Warranty Period. Loaner equipment is not provided, but if so arranged by MRP, Buyer shall have an unconditional obligation to pay MRP the cash list price of any unreturned loaner equipment provided by MRP within 7 days of a written demand from MRP.
(ii) Repair or replacement under any limited warranty of Goods may be with parts or products that are new, used, or refurbished, carrying the same limited warranty for the remaining term of the original item. Repairs or replacements shall not interrupt, extend, or prolong the term of the warranty.
(iii) For Services purchased under the Agreement, MRP warrants that the Services shall be performed using competent personnel in a professional manner in accordance with generally recognized industry standards for similar services. Subject to Sections 6 and 8(e) herein, if any Service was not performed in accordance with the aforementioned warranty, then MRP shall, in its sole discretion, either (i) repair or re-perform the applicable Service, or (ii) credit or refund the price of such Service at the pro rata contract rate.
(d) EXCLUSIONS. MRP reserves the right, without liability, to void all warranties and remedies, including any obligation to service, repair, replace, or otherwise remedy defects, errors, or failures of a Good due to the occurrence of any of these events, and MRP shall be in no way responsible for:
(i) Handling, maintenance, or use in a manner that is inconsistent with and/or contrary to the original manufacturer’s and MRP’s recommended procedures and/or instructions, including, use of or with an unauthorized third party good or part;
(ii) Any failure or damage resulting from negligence, alteration, modification, or relocation of the Product by Buyer, its employees, agents, or representatives;
(iii) Attempted or actual unauthorized disassembling, service, repair, addition, or change of a Good, including, without limitation, the serial number or shot count;
(iv) Abnormal wear and tear, including use under abnormal conditions, e.g., unclean, dusty, or exposure to extreme electromagnetic radiation, temperature, or humidity; or
(v) Damage or failure of the Good due to an event outside of MRP's control including, without limitation, earthquake, flood, fire, lightning, vandalism, or problem in the premises of the Good.
In any of the above situations, or for any Good that has no warranty, MRP has sole discretion to service the Good, at Buyer’s expense at MRP's then-in-effect rates for service, labor, travel, shipping, and materials.
(e) NOTICE AND INSPECTION. The limited warranties are made on condition that immediate written notice of any noncompliance with the Product’s warranty be given to MRP and provided that MRP’s inspection reveals that Buyer’s claim is valid under the terms of this warranty.
- DISCLAIMERS; NO OTHER WARRANTY. EXCEPT TO THE EXTENT AS PROVIDED IN SECTION 8(c)(i)(b), BUYER ACKNOWLEDGES THAT MRP IS NOT BOUND BY ANY WARRANTY THAT MAY BE SET FORTH IN A MANUFACTURER’S WRITTEN MATERIALS THAT WOULD HAVE APPLIED HAD BUYER PURCHASED THE GOODS DIRECTLY FROM THE MANUFACTURER IN THEIR UNUSED STATE. BUYER ACKNOWLEDGES THAT BUYER HAS NOT RELIED UPON ANY WARRANTY OTHER THAN AS SET FORTH IN THIS AGREEMENT. BUYER ALSO HEREBY AGREES THAT ANY ORAL OR WRITTEN STATEMENTS CONCERNING USE AND REGULATION OF MEDICAL DEVICES SOLD BY MRP ARE AND SHALL BE CONSTRUED AS FOR INFORMATIONAL PURPOSES ONLY WITHOUT WARRANTY OR ASSURANCE BY MRP AS TO THEIR ACCURACY OR VALIDITY. MRP ALSO HEREBY DISCLAIMS ANY AND ALL WARRANTIES REGARDING OTHER MEDICAL CARE OR HELP, INCLUDING THE SELECTION OF AESTHETIC AND MEDICAL PROCEDURES AND PRODUCTS FOR, OR CARE OF, PATIENTS.
THE LIMITED WARRANTIES OF THIS AGREEMENT, IF APPLICABLE TO ANY GOOD, SERVICE, OR OTHER ITEM FURNISHED UNDER THIS AGREEMENT, CONSTITUTE THE ONLY WARRANTIES MADE WITH RESPECT TO THE PRODUCTS AND ANY DEFECT, DEFICIENCY, OR NONCONFORMITY. TO THE EXTENT PERMITTED BY LAW, SUCH WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE USAGE OF TRADE OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
- LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL MRP BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR SPECIAL DAMAGES, ARISING FROM, RELATED TO OR CAUSED, DIRECTLY OR INDIRECTLY, WHETHER FORESEEABLE OR NOT, BY THE GOODS, SERVICES, PRODUCTS, THE AGREEMENT, THE USE, OR INABILITY TO USE THE PRODUCTS, THE RESULTS GENERATED FROM THE PRODUCTS, ANY OTHER ACT OR OMISSION OF MRP, OR BASED UPON ANY OTHER LEGAL THEORY. IN NO EVENT SHALL MRP BE LIABLE FOR ANY LOSSES OF REVENUE, USE, BUSINESS OPPORTUNITY, PROFIT, SAVINGS, OR ANY OTHER DAMAGES DUE TO ANY CAUSE WHATSOEVER, EVEN IF MRP OR ITS AGENTS HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. THE FOREGOING IS A SEPARATE, ESSENTIAL TERM OF THIS AGREEMENT, AND SHALL BE EFFECTIVE UPON THE FAILURE OF ANY REMEDY, EXCLUSIVE OR NOT.
IN NO EVENT WILL MRP'S TOTAL LIABILITY UNDER THE AGREEMENT EXCEED THE PURCHASE PRICE ACTUALLY PAID TO MRP BY BUYER FOR THE SPECIFIC GOOD OR SERVICE GIVING RISE TO THE CLAIM FOR WHICH DAMAGES ARE BEING SOUGHT. NO SUIT OR ACTION MAY BE BROUGHT BY BUYER, ITS SHAREHOLDERS, DIRECTORS, MANAGERS, EMPLOYEES, OR AGENTS FOR ANY BREACH OF THE AGREEMENT MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION. IT IS AGREED THAT MRP’S LIABILITY IS SO LIMITED.
- PROPRIETARY RIGHTS. No sale shall be construed as granting to Buyer any license or other right in, or to, any technical data, proprietary rights of any kind, patent rights, or qualification, environmental or other testing applicable to the Products unless otherwise written by MRP.
- INDEMNIFICATION. Buyer agrees to indemnify, defend and hold harmless MRP and its directors, shareholders, employees, and agents (collectively, “MRP Indemnitees”) against any liability, damage, loss, or expense incurred by or imposed in connection with any claims, suits, actions, demands, or judgments arising out of (a) any fraud, negligent act or omission or willful misconduct of Buyer or its directors, managers, employees, or agents (collectively, “Buyer’s Agents”) in connection with the Agreement or the Products; (b) any breach or non-fulfillment of any representation, warranty or covenant set forth in the Agreement by Buyer or Buyer’s Agents; (c) any bodily injury, death of any person or damage to real or tangible personal property caused by the Buyer or Buyer’s Agents, including the use of unauthorized parts in or service of the Equipment; (d) any failure by Buyer or Buyer’s Agents to comply with any applicable laws; and (e) the use or operation of the Equipment, including, without limitation, any medical and/or surgical procedures performed by Buyer, and any of Buyer’s Agents, using the Products.
- DEFAULTS; REMEDIES. Should Buyer fail to pay for the order or any other amount, in whole or in part, when due or perform its other obligations under these Terms or as otherwise mutually agreed in writing between Buyer and MRP (each, a “Default”), then MRP may take any and all actions available under law or equity to collect said amounts with a 10 day prior written notice, including, but not limited to, enforcing its security interest, accelerating the payment of and declaring immediately due and payable any unpaid balance of the order, referral to outside collection agencies and/or commencement of legal action. MRP’s rights shall be cumulative, and it shall not be required to have attempted to realize upon any Goods before taking any other collection actions. MRP may require that Buyer assemble and return any or all of the Goods to MRP and, in the event Buyer fails to return such Goods peaceably, enter upon the premises where such Goods is located, with or without legal process, and repossess such Goods. Upon a Default, Buyer agrees to pay upon MRP’s demand: (i) all costs and expenses incurred by MRP or its assignee in connection with the enforcement of any remedies, including all expenses incurred in connection with the return, sale, release, or other disposition of the Goods, including attorneys’ fees and other costs incurred by MRP or its assignee in enforcing or defending its rights and remedies under the Agreement and any other written agreement between Buyer and MRP.
- COMPLIANCE WITH LAWS. Buyer shall conduct the transactions contemplated by this sale, deal with Products in conformity with all applicable laws, rules, and regulations, of all government authorities, including without limitation, export laws, obtain all permits and licenses required in connection with the purchase, shipment, installation, or use of the Products, and be solely responsibility to fully understand and comply with laws, rules, and regulations. Any information provided is as a convenience only. Buyer is a licensed health care practitioner or is buying the Goods on order of such a practitioner who will be responsible for their use in the case of any prescriptive Goods purchased.
- ASSIGNMENT. Buyer cannot delegate any duties nor assign any rights or claims under this Agreement without MRP's prior written consent, and any such attempt or assignment shall be void. Should Buyer finance its purchase with a third party, Buyer may direct MRP to transfer title to Product to such third-party financing company, with all remaining terms and conditions of the Agreement remaining in full force and effect.
- GOVERNING LAW. The application of the UN Convention on Contracts for the International Sale of Goods is expressly excluded. The parties agree that any and all claims, demands, disagreements, controversies or disputes arising out of or relating to this Agreement and any agreement or document delivered in connection herewith (collectively “Claims”) shall be governed by and construed in accordance with the laws of the State of Utah (“UT”) and adjudicated exclusively in Wasatch County, UT County Court or District Court, which courts shall have the sole and exclusive jurisdiction and venue for adjudication of all Claims. The parties hereby agree upon, consent, and stipulate to the jurisdiction and venue of the aforementioned courts for the adjudication of all Claims, to the exclusion of all other courts, forums, and venues whatsoever.
- ENTIRE AGREEMENT; ADDITIONAL OR INCONSISTENT TERMS. This Agreement contains the entire, only agreement between the parties hereto relating to the subject matter hereof, and any unincorporated representation, affirmation of fact, course of prior dealings, promise or condition in connection therewith, or usage of the trade shall not be binding on either party. Terms and conditions set forth which differ from, conflict with, or are not included in the Terms set forth in this document shall not be part of any agreement between MRP and Buyer unless both parties specifically accept such terms and conditions in writing. In the event of conflict between the Quote, written agreement by MRP, and these Terms, the order of priority shall be: () written agreement by MRP only if written by a MRP Officer, (2) Quote, and (3) Terms, and only to the extent of the direct conflict. If any part of the Agreement is held to be void, illegal, or unenforceable, then it shall be deemed to be severed from this Agreement and the remaining provisions shall continue in full force and effect. Electronic signatures have the same legal effect as ink signatures on hard copies. English is the official, governing language of this Agreement.
- Non-Disparagement; Publicity or Privately. During and after the term of the Agreement, neither party will disparage the other party or the other party's trademarks, websites, products or services, or display any such items in a derogatory or negative manner on any website or in any public forum or press release. Unless otherwise stated herein, neither party shall issue a press release or otherwise advertise, make a public statement or disclose to any third party information pertaining to the relationship arising under this Agreement, the existence or terms of the Agreement, the underlying transactions between MRP and Buyer or agent for the Buyer, or referring to the other party in relation to the Agreement without the other party's prior written approval.
