Terms and Conditions
TERMS AND CONDITIONS
- GENERAL TERMS. The goods listed in given purchase order are to be specially manufactured for the buyer and are not suitable for sale to others in the ordinary course of business of MEDIC-ALLY INTERNATIONAL. (Hereafter Medic-Ally) Unless otherwise specified on the face of this document, this Quotation/Order (“Agreement”) will remain valid only if accepted by Customer no later than 30 days from the date of submission to the Customer.
- TITLE AND RISK OF LOSS. Unless otherwise specified elsewhere in this document, title and risk of loss to the item(s) purchased under this Agreement will pass to Customer (a) if MEDIC-ALLY is to provide installation, upon MEDIC-ALLY’s completion of installation, or (b) if MEDIC-ALLY will not provide installation, upon delivery by MEDIC-ALLY to a common carrier at MEDIC-ALLY’s facility from which the Equipment is shipped.
- TERMS OF PAYMENT. Unless otherwise specified elsewhere in this document, prices stated are EXW Mission Viejo, California or other facilities of MEDIC-ALLY in the USA from which the Equipment may be shipped, freight prepaid and charged. All taxes which are levied on or payable by MEDIC-ALLY in connection with the sale, use, or possession of the Equipment to or by the Customer (excluding income taxes), and transportation charges (including rigging) for the shipment to installation site will be paid by customer in addition to the quoted price. Terms of payment are specified elsewhere in this document. All invoices paid after due date will be assessed a late payment charge of the lesser of 1½ % per month or the maximum rate permitted by law.
- DELAYS. If Customer changes the scheduled delivery date specified on the face of this document (“Scheduled Delivery Date”) during the period of 120 days preceding such date, Customer will nevertheless pay the required delivery installment payment as specified elsewhere in this document on the Scheduled Delivery Date as if delivery had been made on such date. In addition, Customer will pay all extra costs incurred by MEDIC-ALLY as a result of such delay, including without limitation, storage and transportation. Storage fees will be charged at commercially comparable rates for storage on MEDIC-ALLY’s site.
- ACCEPTANCE BY MEDIC-ALLY This Agreement will not be binding on MEDIC-ALLY unless and until it is accepted by MEDIC-ALLY as evidenced by the signature of an authorized MEDIC-ALLY representative on the face of this document. MEDIC-ALLY’s acceptance is expressly made conditional upon Customer’s assent to the terms and conditions which may be contained in Customer’s bid documents, purchase order or any other documents furnished by Customer are hereby objected to and deemed rejected unless accepted in writing by an authorized MEDIC-ALLY representative.
- EQUIPMENT INSTALLATION. If specifically requested in writing to do so, MEDIC-ALLY may provide installation and application training for operation of its products. MEDIC-ALLY may also provide 3rd party installation proposals at the service providers proposed cost to MEDIC-ALLY MEDIC-ALLY is held harmless for the performance of said service provider. MEDIC-ALLY reserves the right to not perform installation and application on any system sold by MEDIC-ALLY
- EQUIPMENT OPERATION AND INDEMNITY. Customer agrees that all items purchased under this Agreement will be operated by duly qualified technician and/or other medical doctors in a safe and reasonable manner in accordance with the manufacturer’s written instructions, applicable laws and regulations, and for the purposes for which such Equipment was intended. Customer agrees to defend, indemnify, and hold MEDIC-ALLY and MEDIC-ALLY’s officers, directors, and employees harmless from and against all claims, demands, lawsuits, liabilities, judgments, and costs (including reasonable attorney’s fees, expert fees, and other litigation costs) arising out of our connection with the operation of Equipment by Customer, unless caused by MEDIC-ALLY’s sole negligence.
- LIMITATION OF LIABILITY. MEDIC-ALLY WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR EXEMPLARY DAMAGES OR ECONOMIC LOSS ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT, EVEN IF MEDIC-ALLY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. IN NO EVEN WILL MEDIC-ALLY’S LIABILITY TO CUSTOMER (WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE) ARISING OUT OF OR RELATING TO THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT ACTUALLY PAID BY CUSTOMER TO MEDIC-ALLY UNDER THIS AGREEMENT.
- SECURITY INTEREST. MEDIC-ALLY hereby reserves and Customer grants to MEDIC-ALLY a security interest pursuant to the Uniform Commercial Code, in and to the Equipment (and all products and proceeds of it) until full payment of the purchase price is received. Customer hereby grants to MEDIC-ALLY its irrevocable special power of attorney to execute and file financing statements or other documents, on Customer’s behalf, for the purpose of protecting the security interest of MEDIC-ALLY
- REMOVAL OF EQUIPMENT. Until MEDIC-ALLY has received full payment of the purchase price, Customer will not remove any part of the equipment from the Customer’s premises, nor will customer sell, lease, transfer, or otherwise part with possession of, or permit any lien or encumbrance to be placed on all or any part of the Equipment.
- REMDIES OF MEDIC-ALLY. If Customer fails to make any payment when due under this Agreement or under any other agreement between Customer and MEDIC-ALLY, or becomes insolvent or makes an assignment for the benefit of creditors, or if a petition in Bankruptcy is filed by or against Customer, or if the financial responsibility of Customer becomes impaired or unsatisfactory in MEDIC-ALLY’s judgment, or if Customer otherwise breaches any of the terms and conditions of this Agreement, then MEDIC-ALLY may, without prior notice or demand, defer shipments, cancel the balance of the order, suspend performance of any obligation (including without limitation, all obligations set forth under Limited Warranty and Remedy above), and/or take immediate possession of the Equipment delivered, until the full purchase price of the Equipment will be paid by Customers or, at MEDIC-ALLY’s discretion until security satisfactory to MEDIC-ALLY will be given by Customer. Any costs incurred by MEDIC-ALLY as a result of suspending performance or repossession, or collection will be payable by Customer.
- ATTORNEY’S FEES AND COSTS. Customer will be liable for all attorney’s fees and litigation costs incurred by MEDIC-ALLY to enforce any of its rights under this agreement, including, without limitation, any action or proceeding to recover delinquent accounts.
- EXCUSED PERFORMANCES. MEDIC-ALLY will not be liable for nonperformance or delay in performance resulting directly or indirectly from any occurrences beyond MEDIC-ALLY’s control, including without limitation, strikes or other labor troubles, acts of God, war, accidents, fires, floods, other catastrophes, inclement weather, transportation, unavailability of materials and labor, delays caused by MEDIC-ALLY’s suppliers, or laws, regulations or acts of any governmental agency. The foregoing provision will apply even though such cause may occur after performance of the obligations of MEDIC-ALLY under this Agreement has been delayed for other causes.
- SOFTWARE. All rights and interest in any software that may be furnished under this Agreement, and any updates and enhancements to it, will remain the property of MEDIC-ALLY. Such software is being furnished to Customer under a non-exclusive license. Customer will not decompile, modify, copy, reproduce, or transcribe the software nor allow third parties to use the same without MEDIC-ALLY’s prior written consent.
- CANCELLATION. Customer may not cancel the order subject to this Agreement except with MEDIC-ALLY’s prior written consent. In the event of such cancellation, MEDIC-ALLY will be entitled to recover any and all damages suffered by it caused by the cancellation as allowed by law, but in no event less than an amount equal to twenty percent (20%) of the purchase price for restocking charge. In the event of cancellation of this purchase order by buyer after either (1) a substantial beginning of their manufacture has occurred, or (2) commitments for their procurement have been made, buyer shall nevertheless be responsible for payment in full for the goods ordered herein. UCC Sec. 2201 (3)(a).
- ASSIGNMENT. Customer may not assign any of its obligations under this Agreement without MEDIC-ALLY’s prior written consent.
- EXPORT REGULATIONS. This Agreement involved products, and/or technical data that may be controlled under the U.S. Export Administration Regulations and may be subject to the approval of the U.S. Dept. of Commerce prior to export. Any export or re-export by Customer, directly or indirectly, in contravention of such of such regulations is prohibited
TERMS AND CONDITIONS OF WARRANTY
- CONDITIONS. Changes to coverage, terms, and/or conditions of this agreement may only be made by written amendments signed by both MEDIC-ALLY and the Customer. This contract is limited to a single designated location specified on the agreement and may not be assigned or transferred by the customer. The warranty period starts from the date of shipment. MEDIC-ALLY must be notified within said warranty period of any issues to receive coverage
- COVERAGE. This warranty contract covers only items listed. Contract covers probe replacement as listed under contract, one monitor, one power supply, one controller, and unlimited PCB’s in accordance with the terms and conditions of this agreement. On-site services will be performed during the customer’s time zone hours, between 8am and 5pm, Monday through Friday, excluding US Federal holidays. Response time is best effort. A parts and labor warranty covers the cost of parts and cost of labor as well as travel costs. A parts-only warranty covers repair of parts or exchange therein. All warranty related shipping charges as well as labor charges are responsibility of client. All depot or factory warranties cover repair of system at MEDIC-ALLY facilities. All related shipping charges are responsibility of client. Warranty does not include loaner machine for use while customer’s machine is being repaired.
- EXCLUSIONS. Contract does not cover repairs or replacements due to abuse or negligence, including but not limited to: delaminating lenses due to use of cleaning fluids/procedures; cables pulled away from probe or connector at strain relief(s); cut, scuffed, twisted, crimped or torn cables; dropped transducers; and/or broken connector pins. Contract does not cover customer transportation of equipment or unauthorized changes to software. Contract does not cover non-medical grade and/or consumer grade peripherals or peripherals not purchased from MEDIC-ALLY Contract does not cover any damages to the ultrasound unit due to deficiencies in the client’s power system, an unstable power source, power sags, spikes, etc. MEDIC-ALLY is not responsible for configuring or installing customer’s technical options, Dicom or other enabled equipment on site or at said location. For Dicom technical support or setup on site, additional charges may apply. MEDIC-ALLY is not liable for loss of use, revenue, reimbursements and/or profits. These are the customer’s sole remedies. In no event will MEDIC-ALLY be liable for direct, indirect, special, incidental or consequential damages however stated.
- CANCELLATION. MEDIC-ALLY may terminate this contract if the customer fails to make payment of fees or reconcile billable charges, and/or fails to observe the conditions of this agreement. MEDIC-ALLY may terminate this agreement for any reason at any time provided that customer’s system is operating at factory specs, in which event MEDIC-ALLY will refund the customer’s unused warranty contract balance.
- ENTIRE AGREEMENT. The Agreement contains the entire agreement between the parties and supersedes all prior or concurrent agreements between the parties, whether oral or written, relating to its subject matter. The provisions of this agreement may not be modified unless in writing and executed by both parties.