1. GENERAL.
This agreement constitutes the entire agreement between the Customer and VIVET with respect to the purchase and sale of the products described in the EDI transmission, and only representations or statements contained herein shall be binding upon VIVET as a warranty or otherwise. Acceptance or acquiescence in the course of performance rendered pursuant hereto shall not be relevant to determine the meaning of this writing even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection. No addition to or modification of any of the terms and conditions specified herein shall be binding upon VIVET unless made in writing and signed by a duly authorized representative of VIVET. The terms and conditions specified shall prevail notwithstanding any variance from the terms and conditions of any order or other form submitted by the Customer. To the extent that this writing may be treated as an acceptance of the Customer’s prior offer, such acceptance is expressly made conditional on assent by the Customer to the terms hereof, and, without limitation, acceptance of the goods by the Customer to the terms hereof, and, without limitation, acceptance of the goods by the Customer shall constitute such assent. All cancellations and reschedules require a minimum of thirty (30) days notice.
2. DELIVERY AND RISK OF LOSS.
Unless otherwise stated, all deliveries shall be F.O.B. VIVET Medical Equipment Supply and Manufacturing facility. Risk of loss or damage to the Equipment shall pass to the Customer upon delivery of the Equipment to the carrier.
3. TERMS OF PAYMENT.
Unless otherwise stated in current contracts, payment by Customer is due thirty (30) days after the ship date appearing on VIVET Medical Equipment Supply and Manufacturing facility invoice. Any amounts payable hereunder which remain unpaid after the date shall be subject to a late charge equal to 1.5% per month from the due date until such amount is paid. The Customer is responsible for all Attorney or Agency fees incurred by VIVET due to actions taken as a result of default in payment. VIVET reserves the right at any time to change or rescind payment terms based on assessment of Customer’s financial condition or prior payment record.
4. CREDIT APPROVAL.
All shipments and deliveries shall at all times be subject to the approval of credit by VIVET Medical Corporation. VIVET Medical Equipment Supply and Manufacturing may at any time decline to make any shipment or delivery except upon receipt of payment or security or upon terms regarding credit or security satisfactory to VIVET Medical Equipment Supply and Manufacturing.
5. TAXES.
The pricing quoted does not include sales use, excise, or other similar taxes or any duties or customs charges. The Customer shall pay in addition for the prices quoted the amount of any present or future sales, excise or other similar tax or customs duty or charge applicable to the sale or use of the Equipment sold hereunder (except any tax based on the net income of VIVET Medical Equipment Supply and Manufacturing). In lieu thereof the Customer may provide VIVET Medical Equipment Supply and Manufacturing with a tax exemption certificate acceptable to the taxing authorities.
6. SHIPPING & HANDLING.
The pricing quoted does not include any shipping & handling charges. The Customer shall pay in addition for the prices quoted the amount of any shipping & handling charges.
7. WARRANTY.
(a) VIVET Medical Equipment Supply and Manufacturing warrants to the Customer that from the earlier of the date of installation or thirty (30) days after the date of shipment from VIVET Medical Equipment Supply and Manufacturing facility, the Equipment (other than accessories and electrodes) will be free from defects in material and workmanship under normal use and service for the period noted on the reverse side. Accessories and electrodes shall be warranted for ninety (90) days from the date of shipment. During such period VIVET Medical Equipment Supply and Manufacturing will at no charge to the Customer either repair or replace (at VIVET Medical Equipment Supply and Manufacturing sole option) any part of the Equipment found by VIVET Medical Equipment Supply and Manufacturing to be defective in material or workmanship. If VIVET Medical Equipment Supply and Manufacturing inspection detects no defects in material or workmanship, VIVET Medical Equipment Supply and Manufacturing regular service charges shall apply.
(b) VIVET Medical Equipment Supply and Manufacturing shall not be responsible for any Equipment defect failure of the Equipment to perform any specified function, or any other nonconformance of the Equipment caused by or attributable to (i) any modification of the Equipment by the Customer, unless such modification is made with the prior written approval of VIVET Medical Equipment Supply and Manufacturing: (ii) the use of the Equipment with any associated or complementary equipment accessory or software not specified by VIVET Medical Equipment Supply and Manufacturing, or (iii) any misuse or abuse of the Equipment: (iv) exposure of the Equipment to conditions beyond the environmental, power or operating constraints specified by VIVET Medical Equipment Supply and Manufacturing, or (v) installation or wiring of the Equipment other than in accordance with VIVET Medical Equipment Supply and Manufacturing instructions.
(c) Warranty does not cover items subject to normal wear and burnout during use, including but not limited to lamps, fuses, batteries, cables and accessories.
(d) The foregoing warranty does not apply to software included as part of the Equipment (including software embodied in read-only memory known as “firmware”).
(e) The foregoing warranty constitutes the exclusive remedy of the Customer and the exclusive liability of VIVET Medical Equipment Supply and Manufacturing for any breach of any warranty related to the Equipment supplied hereunder.
THE WARRANTY SET FORTH HEREIN IS EXCLUSIVE AND VIVET MEDICAL EQUIPMENT SUPPLY AND MANUFACTURINGEXPRESSLY DISCLAIMS ALL OTHER WARRANTIES WHETHER WRITTEN, ORAL, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. DELAYS IN DELIVERY.
VIVET Medical Equipment Supply and Manufacturing shall not be liable for any delay in the delivery of any part of the Equipment if such delay is due to any cause beyond the control of the VIVET Medical Equipment Supply and Manufacturing including, but not limited to acts of God, fires, epidemics, floods, riots, wars, sabotage, labor disputes, governmental actions, inability to obtain materials, components, manufacturing facilities or transportation or any other cause beyond the control of VIVET Medical Equipment Supply and Manufacturing. In addition VIVET Medical Equipment Supply and Manufacturing shall not be liable for any delay in delivery caused by failure of the Customer to provide any necessary information in a timely manner. In the event of any such delay, the date of shipment or performance hereunder shall be extended to the period equal to the time lost by reason of such delay. In the event of such delay VIVET Medical Equipment Supply and Manufacturing may allocate available Equipment among its Customers on any reasonable and equitable basis. The delivery dates set forth in this Quotation are approximate only and VIVET Medical Equipment Supply and Manufacturing shall not be liable for or shall the Contract be breached by, any delivery by VIVET Medical Equipment Supply and Manufacturing within a reasonable time after such dates.
9. LIMITATIONS OF LIABILITY.
IN NO EVENT SHALL VIVET MEDICAL EQUIPMENT SUPPLY AND MANUFACTURINGBE LIABLE FOR INDIRECT SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM VIVETMEDICAL CORPORATIONS PERFORMANCE OR FAILURE TO PERFORM PURSUANT TO THIS QUOTATION OR THE CONTRACT OR THE FURNISHING, PERFORMANCE, OR USE OF ANY EQUIPMENT OR SOFTWARE SOLD HERETO, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, THE NEGLIGENCE OF VIVET MEDICAL EQUIPMENT SUPPLY AND MANUFACTURINGOR OTHERWISE.
10. PATENT INDEMNITY.
VIVET Medical Equipment Supply and Manufacturing shall at its own expense defend any suit that may be instituted against the Customer for alleged infringement of any United States patents or copyrights related to the parts of the Equipment or the Software manufactured by VIVET Medical Equipment Supply and Manufacturing, provided that
(i) such alleged infringement consists only in the use of such Equipment or the Software by itself and not as a part of or in combination with any other devices or parts,
(ii) the Customer gives VIVET Medical Equipment Supply and Manufacturing immediate notice in writing of any such suit and permits VIVET Medical Equipment Supply and Manufacturing through counsel of its choice, to answer the charge of infringement and defend such suit, and
(iii) the Customer gives VIVET Medical Equipment Supply and Manufacturing all requested information, assistance and authority at VIVET Medical Equipment Supply and Manufacturing expense, to enable VIVET Medical Equipment Supply and Manufacturing to defend such suit.
In the case of a final award of damages for infringement in any such suit, VIVET Medical Equipment Supply and Manufacturing will pay such award, but it shall not be responsible for any settlement made without its written consent.
Section 10 states VIVET Medical Equipment Supply and Manufacturing total responsibility and liability’s, and the Customer’s sole remedy for any actual or alleged infringement of any patent by the Equipment or the Software or any part thereof provided hereunder. In no event shall VIVET Medical Equipment Supply and Manufacturing be liable for any indirect, special, or consequential damages resulting from any such infringement.
11. CLAIMS FOR SHORTAGE.
Each shipment of Equipment shall be promptly examined by the Customer upon receipt thereof. The Customer shall inform VIVET Medical Equipment Supply and Manufacturing of any shortage in any shipment within ten (10) days of receipt of Equipment. If no such shortage is reported within ten (10) day period, the shipment shall be conclusively deemed to have been complete.
12. RETURNS AND CANCELLATION.
(a) The Customer shall obtain authorization from VIVET Medical Equipment Supply and Manufacturing prior to returning any of the Equipment.
(b) If the Customer receives authorization from VIVET Medical Equipment Supply and Manufacturing to return a product for credit; then the Customer shall be subject to a restocking charge of twenty percent (20%) of the original list purchase price, but not less than $50.00 per product.
(c) Any change in delivery caused by the Customer that causes a delivery date greater than six (6) months from the Customer’s original order date shall constitute a new order for the affected Equipment in determining the appropriate list price. Notwithstanding the foregoing, products categorized as consumables or disposables (for example electrodes, catheters, cartridges, and related accessories) are non-returnable unless the products (a) were shipped in error by VIVET and are returned within thirty (30) calendar days of the invoice date, (b) are non-conforming or defective and returned within the applicable warranty period, or (c) are those of which VIVET specifically authorized in writing for return. Products returned without VIVET Medical Equipment Supply and Manufacturing prior written authorization shall be refused. Products authorized for return and returned within thirty (30) calendar days must be unopened, undamaged and properly packaged by the Customer to prevent damage during shipping. VIVET will not issue a return credit for products that are damaged during shipment. The customer is responsible for any return freight charges.
13. APPLICABLE LAW.
This Quotation and the Contract shall be governed by the substantive laws of the Commonwealth of Massachusetts without regard to any choice of law provisions thereof.
14. COMPLIANCE WITH LAWS.
(a) VIVET Medical Equipment Supply and Manufacturing represents that all goods and services delivered pursuant to the Contract will be produced and supplied in compliance with all applicable state and federal laws and regulations, including the requirements of the Fair Labor Standards Act of 1938, as amended.
(b) The Customer shall be responsible for compliance with any federal, state and local laws and regulations applicable to the installation or use of the Equipment furnished hereunder, and will obtain any permits required for such installation and use.
15. NON-WAIVER OF DEFAULT.
In the event of any default by the Customer, VIVET Medical Equipment Supply and Manufacturing may decline to make further shipments without in any way affecting its right under such order. If, despite any default by Customer, VIVET Medical Equipment Supply and Manufacturing elects to continue to make shipments its action shall not constitute a waiver of any default by the Customer or in any way affect VIVET Medical Equipment Supply and Manufacturing legal remedies regarding any such default. No claim or right arising out of a breach of the Agreement by the Customer can be discharged in whole or in part by waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by VIVET Medical Equipment Supply and Manufacturing.
16. ASSIGNMENT.
This agreement may not be assigned by the Customer without the prior written consent of VIVET Medical Equipment Supply and Manufacturing, and any assignment without such consent shall be null and void.
17. TITLE TO PRODUCTS.
Title to right of possession of the products sold hereunder shall remain with VIVET Medical Equipment Supply and Manufacturing until VIVET Medical Equipment Supply and Manufacturing delivers the Equipment to the carrier and agrees to do all acts necessary to perfect and maintain such right and title in VIVET Medical Equipment Supply and Manufacturing. Failure of the Customer to pay the purchase price for any product when due shall give VIVET Medical Equipment Supply and Manufacturing the right, without liability to repossess the Equipment, with or without notice, and to avail itself of any remedy provided by law.
18. TRADEMARKS.
Customer shall not use VIVET name, logo, trademarks, trade names, trade dress, design, look and feel or other proprietary rights (together “Proprietary Rights”) in any of its advertising, promotional communications, publications or other work without the prior written permission of VIVET. Any such use shall be solely for the purpose of identifying VIVET as the source of the referenced product(s) and shall not imply any other relationship between VIVET and Customer. Customer must not remove, obfuscate, deface, cover or alter any VIVET mark or other mark nor add any VIVET mark or other mark to any materials provided by VIVET nor to any Product or its packaging. Neither Customer nor its agents will register or use any trademark that may cause confusion with VIVET Proprietary Rights.
