HUG-U-VAC TERMS AND CONDITIONS OF SALE
1. PRICES; INVOICES. Prices are subject to change without notice. Amounts reflected in invoices issued by HUG-U-VAC Surgical Positioning Systems, Inc. ("Seller") will be deemed accepted and conclusively binding upon Customer as an account stated unless Customer notifies Seller in writing within 30 days after the date of the invoice.
2. ACCEPTANCE OF TERMS. Customer's placement of a purchase order constitutes Customer's acceptance of these Terms, and Seller's acceptance of Customer's purchase order is expressly conditioned upon Customer's agreement that its purchase orders will be governed by these Terms. These Terms take precedence over any terms and conditions in Customer's purchase order or any of Customer's other documents. Nothing in these Terms obligates Seller to accept Customer's purchase orders and Seller may reject any purchase order in Seller's sole discretion.
3. DELIVERY. The goods offered for sale by Seller (the "Products") are sold FOB Seller's loading dock.
4. TERMS OF PAYMENT. Prices for the Products are exclusive of sales taxes, shipping and handling, and Customer will pay those taxes and charges. Unless Seller expressly agrees otherwise, Products sold on open account will be due and payable 30 days after the invoice date. Any sums not paid when due are subject to a service charge of 1.5% per month (18% per annum) or the maximum rate permitted by law, whichever is lower. If Customer breaches these Terms, Seller may cancel any or all of Customer's outstanding purchase orders, refuse shipment, stop delivery in transit, reclaim any Products for which payment has not been made, and exercise all other legal rights and remedies.
5. LIMITED WARRANTY. Unless expressly provided otherwise in a written document signed by Seller, Seller warrants that at the time of shipment each Product will be free from defect in materials and workmanship. SELLER MAKES NO OTHER WARRANTY, EXPRESS, IMPLIED OR STATUTORY, AND SELLER EXPRESSLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. This warranty does not apply to Products that have been (a) subject to misuse, neglect, abuse or accident; (b) used contrary to Seller's instructions; or (c) repaired or altered by anyone other than Seller. This warranty is not assignable.
6. LIMITED REMEDY; LIMITATIONS ON DAMAGES; STATUTE OF LIMITATIONS. IF ANY PRODUCT FAILS TO CONFORM TO THE LIMITED WARRANTY DESCRIBED IN SECTION 5, SELLER WILL, AT ITS OPTION, AND AS CUSTOMER'S EXCLUSIVE REMEDY, REPAIR OR REPLACE THAT DEFECTIVE PRODUCT, OR REFUND THE AMOUNT CUSTOMER PAID FOR THAT DEFECTIVE PRODUCT, BUT ONLY IF CUSTOMER PROMPLTY GIVES SELLER WRITTEN NOTICE SPECIFYING IN DETAIL THE NONCONFORMITY OR DEFECT, BUT IN ANY EVENT WITHIN ONE YEAR AFTER DELIVERY OF THE PRODUCT THAT IS THE SUBJECT OF THE WARRANTY CLAIM (the "Warranty Period"). CUSTOMER MUST RETURN THE DEFECTIVE PRODUCT TO SELLER WITHIN SEVEN DAYS FOLLOWING THE LAST DAY OF THE WARRANTY PERIOD IN ACCORDANCE WITH SECTION 7 BELOW. SELLER WILL NOT BE LIABLE FOR INJURY TO, OR THE DEATH OF, ANY ANIMAL, FOR ANY PROPERTY DAMAGE OR FOR ANY LOST PROFITS, INTERRUPTION OF BUSINESS OR ANY SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES SUFFERED OR SUSTAINED BY CUSTOMER, WHETHER ARISING UNDER CONTRACT, TORT OR ANY OTHER THEORY, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. IN NO EVENT WILL SELLER BE LIABLE TO CUSTOMER FOR AN AMOUNT GREATER THAN THE AMOUNT CUSTOMER PAID FOR THE PRODUCT GIVING RISE TO THE WARRANTY CLAIM. THESE LIMITATIONS WILL APPLY EVEN IF THE LIMITED REMEDY IN THIS SECTION FAILS OF ITS ESSENTIAL PURPOSE.
7. CANCELLATION AND RETURN POLICY. Seller must pre-approve all returns. Customer may return a new and unused Product in its original packaging within 30 days of delivery for a full refund, provided Customer pays all return freight charges. Seller will not accept returns of used Products unless (a) they are defective and (b) Customer has complied with the conditions described in Section 6 above. If Customer returns a defective Product, Seller will reimburse Customer's reasonable freight charges.
8. FORCE MAJEURE. Any obligation to deliver Products will be extended to the extent that delivery is delayed by reason of fire, flood, sabotage, war, riot, strike, labor dispute, natural disaster, material shortages, power failure, machinery breakdowns, delay of carriers, acts of terrorism or any other event beyond Seller's reasonable control.
9. SAFETY. Customer will cause each person who receives or uses a Product to read and comply with all safety instructions provided by Seller, including all product safety notices, warnings, instructions and training materials, manuals, video tapes (whether on CDs or available through Seller's website) or similar materials (collectively, the "Safety Documentation"). Customer will instruct each user in the proper use of the Products and will implement and enforce the safety provisions in the Safety Documentation. Customer will be solely responsible for complying with local, state and federal or provincial laws, codes or regulations relating to safety of the workplace where the Products are used.
10. OWNERSHIP. Seller, and not Customer, owns all rights in and to any patents, know-how, inventions, discoveries and improvements, and all technical information, drawings, data, ideas, designs, formulae, processes, procedures, works of authorship, confidential information and all other intellectual property rights in any way associated with the Products, and reserves all rights with respect to that intellectual property. Customer will not reverse engineer the Products.
11. INDEMNITY. Customer will indemnify, defend and hold Seller, its directors, officers, employees, agents, affiliates and insurers harmless and its and their successors and assigns harmless from and against any and all actions, claims, demands, lawsuits, losses, expenses, damages, injuries, expenses and liabilities (including collection agency fees and costs, arbitrator fees and costs and attorney fees and cost at trial or on appeal) arising from or related to: (a) Customer's breach of these Terms; (b) any improper alteration, installation, repair or maintenance of the Products, including removing or defeating safety devices; (c) any use of the Products contrary to the Safety Documentation or any of Seller's other instructions or applicable law; (d) any use of the Products other than for the purpose for which the Products were designed; (e) any other misuse of the Products; and (f) any failure to provide, implement or enforce the Safety Documentation. TO THE EXTENT NECESSARY TO PERFORM ITS OBLIGATIONS UNDER THIS SECTION, EACH PARTY EXPRESSLY WAIVES ANY IMMUNITY OR EXEMPTION FROM LIABILITY FOR THE PERSONAL INJURY OR DEATH OF ITS EMPLOYEES THAT MAY EXIST UNDER, OR ANY RIGHT TO RECEIVE CONTRIBUTION FROM THE OTHER PARTY CREATED BY, THE WORKER'S COMPENSATION LAWS OF THE STATE WHERE THE INJURY OCCURRED OR THE EMPLOYEE IS LOCATED.
12. MISCELLANEOUS. Any portion of these Terms that is found to be unenforceable will not invalidate the remainder of these Terms. Any delay in enforcing or any failure to enforce any provision of these Terms will not be deemed a waiver of any other or subsequent breach of these Terms unless such waiver is in writing and is signed by an officer of Seller. Caption headings are for convenience of reference only and will not affect the interpretation of these Terms. Ambiguous terms will be construed without regard to authorship. The terms "including" and "includes" are not limiting in any way.
13. GOVERNING LAW; CONSENT TO JURISDICTION. Oregon law, without resort to its choice of law provisions, will govern (except that the United Nations Convention on Contracts for the International Sale of Products will not apply). Customer irrevocably consents to the jurisdiction of and venue in any state or federal court located in Marion County, Oregon for any legal action arising out of or in relation to any Products or these Terms, and agrees that Customer will not initiate any action against Seller in any other jurisdiction.
14. ENTIRE AGREEMENT; MODIFICATIONS. These Terms and Customer's credit application contain the entire understanding between the parties, and will apply to all Products sold or offered for sale by Seller. These Terms may not be amended orally.