General Terms and Conditions
1.APPLICABILITY OF GENERAL TERMS AND CONDITIONS.
These General Terms and Conditions shall be applicable to Customer's purchase order and to all subsequent purchase orders received by BMDS from Customer, whether received by mail, by telephone or by electronic means, from the date of receipt by Customer of these General Terms and Conditions until such time as Customer receives a revised edition of these General Terms and Conditions or other notice of revocation of the same. Said General Terms and Conditions shall apply to all transactions between BMDS and Customer until such further notice.
Within this document the following terms shall have the meanings hereinafter specified:
“Customer” means the person or entity however constituted to whom Products and/or Services are sold.
“Delivery” means the date of Customer's receipt of Product or completion of Services at Customer's designated location.
“BMDS” means Bio Medic Data Systems, Inc. or its designated affiliates.
“Price Quotation” means BMDS' document that provides a summary of Product and/or Services offered for sale and pricing corresponding to the said Product and/or Services to be sold.
“Product” means equipment of BMDS' design and manufacture, or other manufacturer's equipment offered for sale by BMDS to Customer. Product does not include Standard Software.
“Purchase Order” means Customer's document for the acquisition of Product and/or Services, exclusive of all printed terms and conditions contained therein.
“Purchase Order Acknowledgment” means a document entitled Purchase Order Acknowledgement furnished by BMDS acknowledging the receipt of the Purchase Order and BMDS' agreement to supply Product and/or Services stated therein under the terms and conditions stated herein and in the Purchase Order Acknowledgment.
“Purchase Price” means the price charged by BMDS to Customer for Products and/or Services covered by the Purchase Order and the Purchase Order Acknowledgement.
“Services” means various types of services as provided by BMDS to Customer covering items such as training, maintenance services, on-site support, applications engineering, site engineering and installation. Services are not Product. Additional fees apply for Services.
“Shipment Date” means the date on which BMDS has scheduled shipment of Product to Customer.
“Standard Software” means a set of instructions which allows hardware/non-intelligent Products to store, manipulate and/or process information.
3. ACCEPTANCE OF PURCHASE ORDERS.
All Purchase Orders are subject to written acceptance by BMDS, at its sole discretion, even if received elsewhere by a salesperson, selling agent or representative. No Purchase Order will be binding upon BMDS until BMDS issues its written Purchase Order Acknowledgment.
4. PURCHASE ORDER CHANGES.
Customer may not change its Purchase Order without BMDS' written consent. Any revision in drawings, designs, specifications, shipment completion dates or Purchase Order termination requested by Customer may result in additional cost to Customer. Any additional cost to Customer will be at BMDS' standard rates in effect at the time of Customer's request. BMDS' performance of Customer's request shall commence only upon the issuance of a new Purchase Order or written amendment to an existing Purchase Order authorizing the applicable charge.
Customer's oral requests for Services shall be binding on Customer and deemed by BMDS as valid Purchase Orders, governed by these terms and conditions. Customer further agrees, as a result of any request made hereunder, to pay any and all charges associated with such Service request. Customer-requested changes in performance of Services shall be reviewed upon BMDS' receipt of Customer's request to determine if additional charges are applicable.
5. PURCHASE PRICE.
The purchase price for Product and/or Services are based on BMDS' published list prices in effect at time of BMDS' receipt of the Purchase Order unless otherwise set forth in the Purchase Order Acknowledgment, or a valid issued Price Quotation or proposal. A Price Quotation or proposal is valid for a period of thirty (30) days from date of issue unless otherwise indicated on the face thereof. Errors or omissions in price are subject to correction by BMDS.
All published list prices are subject to change by BMDS without notice. BMDS retains all rights to change Product and/or Services or may discontinue any Product and/or Services at BMDS' sole discretion.
Customer's payment obligations are stated on BMDS' invoices or Price Quotation.
Except as otherwise provided on the face hereof or on the Price Quotation, the Purchase Price shall be paid within thirty (30) days of receipt of any of Product and/or Services, in United States dollars, regardless of controversies relating to other orders or other delivered or undelivered goods. Checks or remittances received from or for the account of Customer may be applied against amounts owing by Customer, without accord and satisfaction of Customer's liability, regardless of writings, legends or notations on such check or remittance or of other writings, statements or documents. BMDS may apply payments against outstanding balances in such order as BMDS shall deem advisable. Discounts, if given, do not apply to taxes or freight. If all sums owed hereunder are not paid when due, Customer shall, in addition, pay a sum equivalent to one and one-half (1 ½%) percent per month on the unpaid amount owed from the date due until payment. BMDS shall have the right to increase the unit price and Purchase Price of Product and/or Services upon written notice to Customer in the event of any increase of BMDS' cost of acquisition or production, or in the event legal/regulatory changes occur after issuance of the Price Quotation for Product and/or Services. Customer may refuse Product and/or Services at the increased price by notifying BMDS by certified mail, return receipt requested, postage prepaid, to BMDS' address set forth above, to that effect within seven (7) days from receipt or tender of BMDS' notice of increase.
In addition to the Purchase Price for Product or Services paid by Customer, Customer will pay BMDS the amount of all taxes, excises, or other governmental charges that BMDS may be required to pay with respect to the production, sale, license, or transportation of any Product delivered hereunder, including the performance of any Services, except taxes on or measured by BMDS' net income. If Customer claims exemption from any taxes, Customer will provide BMDS with documentation required by the taxing authority to support the exemption.
7. DELIVERY DATE.
Any delivery date, whether set forth in a Purchase Order or Purchase Order Acknowledgment or other document, will vary depending upon manufacturing, product availability and other conditions and the delivery date is approximate only, is not guaranteed, and may be extended by BMDS for a reasonable time if conditions in BMDS' sole discretion warrant. Delay in Delivery of any shipment shall not relieve Customer of its obligations to accept shipment of Product and/or Services. BMDS shall notify Customer in the event of Product shortage for any reason. BMDS shall have the right to allocate Products among its present and future customers and Customer, in BMDS' sole discretion. BMDS shall in no event be liable for loss, damage, destruction, expense, liability or claim (direct, special, incidental or consequential) resulting from failure to meet delivery schedules. Customer shall not refuse to take Delivery of any of Product and/or Services due to delay in receipt of documents if BMDS has made reasonable efforts to dispatch such documents through regular channels.
8. SHIPPING INSTRUCTIONS.
All Product shall be suitably packed for shipment. BMDS may charge for packing and/or packaging including special documentation to comply with Customer requirements. Unless complete and specific shipping instructions are received from Customer substantially before Shipment Date, BMDS may use its best judgment in selecting the appropriate means of shipment. BMDS may make partial shipments and invoice the Customer therefore. If shipment of any Product ordered is delayed by Customer, all Product held by BMDS or Services to be performed by BMDS shall be at the risk and expense of Customer.
9. SHIPMENT COSTS.
Except as otherwise provided on the face hereof, all Product shall be shipped F.O.B. place of shipment and Customer shall pay the cost of such carrier. Upon delivery of Product by BMDS to a carrier for shipment to Customer, all risk of loss, damage, destruction, expense, liability and claim and other incidents of ownership shall immediately pass to Customer, subject to all of BMDS' rights until paid in full.
10. ACCEPTANCE OR REJECTION OF PRODUCT/ SERVICES.
After the Delivery of Product, or the performance of Services, Customer will inspect Product/Services for conformity to the Purchase Order or Price Quotation (as the case may be) or for failing to conform to specifications or Customer's instructions within fifteen (15) calendar days (hereinafter “Acceptance Period”). Acceptance of Product/Services by Customer shall automatically occur after the passage of the Acceptance Period stated herein unless BMDS is advised otherwise in writing within the stated Acceptance Period. BMDS' invoice weights, tares, volumes, quantities and sizes shall govern.
If any Product or Service does not substantially conform to the Purchase Order or Price Quotation (as the case may be) Customer shall notify BMDS in writing of the details of the nonconformance, and for Product, obtain an authorization for return, and return such Product to BMDS for correction or completion as required. With respect to Services, BMDS shall, at no additional charge (if determined by BMDS to be BMDS' fault), take reasonable action to correct such unsatisfactory Services.
In the event that BMDS supplies any samples of Product to Customer, BMDS shall retain title to any and all such samples. Customer shall indemnify and hold harmless BMDS from any disability, loss, damage, expense and claim, special, incidental and consequential, including without limitation, BMDS' attorneys' fees related to the use of the samples.
12. SIZES, TOLERANCES.
The sizes and dimensions of Product are subject to industry accepted tolerances and variances unless otherwise agreed to in writing.
13. INTELLECTUAL PROPERTY RIGHTS.
All drawings, data, designs, tooling, equipment, procedures, engineering changes, inventions, trade secrets, copyrights, mask works, source code, object code, patents, patent applications, know-how, computer and/or Product software and all parts thereof, trademarks and all other information, technical or otherwise which was developed, made or supplied by or for BMDS in the production of any Product or the performance of any Service sold, rendered or licensed hereunder will be and remain the sole property of BMDS (or its licensors, if any). Customer agrees not to reverse engineer any Products purchased hereunder.
14. PRODUCT FAILURE.
Customer acknowledges that a percentage of Product will fail due to defects, handling, lack of training, excess noise, lack of maintenance, internal or external hostile environment or improper use. Such product failure should be anticipated by the Customer when using Product or conducting research studies.
15. REQUEST FOR AUDIT.
It is BMDS' policy to respond to reasonable requests for information regarding the technical features and operation of its Products, including the quality assurance/quality control measures undertaken for BMDS' Products. Such requests should be in writing, and BMDS retains sole discretion to determine whether responding to such requests would disclose confidential business information about BMDS, its Products or its customers. This policy does not create any right of inspection or audit of BMDS' operations or facilities.
Except for Customer's internal use of BMDS' trademarks, Customer will not use any BMDS trademark or trade name for any other purpose whatsoever without the express written consent of BMDS.
17. SOFTWARE LICENSE.
BMDS licenses to Customer, Standard Software, when included with a Product sale or when purchased separately, in accordance with the terms of BMDS' Software license.
18. INDEMNIFICATION OF BMDS.
By ordering Product and/or Services made to individual specifications, Customer undertakes to indemnify and hold BMDS harmless from all loss, damage, destruction, liability, expense and claims of infringement (including all attorneys' fees and costs of investigating and litigating claims) occasioned by or resulting, directly or indirectly, from the manufacture, use and/or sale of such Product and/or Services, and to promptly assume the defense and preparation for the defense of any suit or threatened suit to be brought against BMDS. The sale of Product and/or Services by BMDS shall not be deemed to convey any license or right (whether expressly, by implication, estoppel or otherwise) under any patent claim of BMDS or of any other person, firm, corporation or government.
19. TERMINATION BY BMDS.
BMDS, at any time, in BMDS' sole discretion, may terminate or suspend all or a portion of performance hereunder and shall not be liable for any loss, damage, destruction, expense, liability or claim (direct, special, incidental or consequential). If performance hereunder is suspended or terminated, Customer will take Delivery of and make payment for such Product and/or Services or parts thereof as have been completed and such as are in process on the date notice of the occurrence of the contingency is received by BMDS.
Customer's wrongful non-acceptance of Product and/or Services or cancellation or repudiation of any Purchase Order or shipment shall entitle BMDS to recover, in addition to any incidental damages: (1) the full Purchase Price of such Product and/or Services; or (2) in the case of Product and/or Services for which other customers exist or where an action for the Purchase Price is prohibited by law, damages equal to the profit (including reasonable overhead) which BMDS would have realized had Customer fully performed. For Purchase Orders of custom or semi-custom Product and/or Services, BMDS shall also be entitled to recover BMDS' expenses incurred prior to receipt by BMDS of notice of a non-acceptance, repudiation or cancellation by Customer in connection with procuring or providing special services, special tooling, special supplies and the like.
20. TERMINATION BY CUSTOMER.
Customer may not cancel, terminate or modify the Purchase Order except with the prior written consent of BMDS. BMDS' failure at any time to enforce any rights strictly in accordance herewith shall not be construed as creating a waiver or modification in any way or manner contrary to the specific terms and provisions hereof. Waiver of any default shall not constitute waiver of any subsequent default. BMDS' rights and remedies are cumulative and not alternative. No action arising hereunder may be brought by Customer more than one (1) year after the accrual of the cause of action.
Any of the following, at BMDS' option, shall be a default: (i) Customer fails or refuses to accept any of Product and/or Services ordered when tendered for Delivery by BMDS; (ii) Customer breaches or fails to perform (whether material or not) any of the other terms, conditions or warranties hereof; (iii) any case or proceeding in liquidation, bankruptcy, reorganization, arrangement, debtor rehabilitation, creditor adjustment, or insolvency, State or Federal, is commenced by or against Customer; (iv) Customer makes or proposes an assignment for the benefit of creditors or enters into a composition agreement with all or a part of Customer's creditors; (v) a judgment not adequately covered by insurance is recorded or recovered against Customer; (vi) Customer ceases operations other than in the ordinary course of business; (vii) BMDS reasonably deems itself insecure; or (viii) a trustee, receiver, conservator, liquidator, administrator, or other judicial representative, similar or dissimilar, is appointed for Customer or any of Customer's assets. On Customer's default, BMDS, in addition to all BMDS' remedies, may (a) without liability for any loss, damage, destruction, liability or claim (direct, special, incidental or consequential), refuse shipment of Product and/or Services and/or cancel BMDS' obligations under all or any part hereof; and/or (b) (whether or not BMDS cancels) require Customer to indemnify BMDS and hold BMDS harmless from all liability, loss, damage, expense and claim, special, incidental and consequential, including, without limitation, all BMDS' attorneys' fees, BMDS' reason-able profits and costs of investigating and litigating claims resulting directly or indirectly from Customer's default; and/or (c) enter on any premises where Product and/or Services may be located and repossess and remove same without liability for damage or conversion occasioned thereby, for which Customer shall indemnify and hold BMDS harmless; and/or (d) sell any Product and/or Services at public or private sale upon five (5) days prior written notice which is agreed to be commercially reasonable. Customer shall continue performance of any part hereof which is not canceled.
22. CONFIDENTIAL INFORMATION.
Customer will not disclose to any person or entity any information or data fixed in a tangible medium and marked as the confidential or proprietary information (hereinafter referred to as “Confidential Information”) of BMDS, or if provided orally, confirmed in writing to be confidential or proprietary, unless such information was generally known to the public prior to the disclosure thereof to Customer, or is otherwise or previously known to Customer, or until the same later becomes generally known to the public, or is disclosed by a third party who has the right to do so.
Notwithstanding the provisions herein, if Customer receives Confidential Information it shall treat such Confidential Information as confidential, prohibit recopying and use such Confidential Information only in connection with fulfilling its obligations under the Purchase Order. Customer will return all Confidential Information to BMDS upon completion of such obligations for its use, or upon the request of BMDS.
Customer recognizes and agrees that the unauthorized use or disclosure of the Confidential Information would cause irreparable injury to BMDS for which it would have no adequate remedy at law, and that any actual or contemplated breach of this clause will entitle BMDS to obtain immediate injunctive relief prohibiting such breach, in addition to any other rights and remedies available to it. The obligations herein contained will expressly survive the final payment of any/or all Purchase Orders.
23. FORCE MAJEURE.
BMDS shall not be liable for any loss, delay or failure to perform if BMDS is limited in or is unable to perform hereunder because of any casualty, interruption of business, event or circumstance beyond BMDS' control, including, without limitation, riots, bombings, terrorist acts, insurrections, civil commotions or wars; labor disputes, strikes, lockouts, boycotts, picketing or other industrial disturbances; acts of God or other force majeure; flood, fire, severe weather or water damage; delays in transportation, delays in delivery of material or services by suppliers, delays or failure in procuring any licenses or other documents or authorizations deemed necessary or desirable by BMDS for the consummation of the sale of Product and/or Services; shortages of labor, fuel, material or supplies; failure, curtailment or delay of BMDS' operations; accidents to machinery; imposition of governmental embargoes or priorities, laws, regulations, restrictions, price limitations or controls (suggested or mandatory); and inability to obtain suitable parts, supplies, equipment, fuel, inventory, labor or any Product and/or Services at reasonable prices in relation to the Purchase Price. Any delivery date may be extended, at BMDS' option, to the extent of any delay resulting from a force majeure event. In the event of any such delay, the date for shipment or performance of Services will be extended correspondingly. BMDS retains the right to determine the allocation of its inventory of Product among itself, its present and future customers and Customer. In the event BMDS partially fills the Purchase Order, Customer shall, nonetheless, continue to make payments on BMDS' invoices during the period in which the delay is in effect for those Products and/or Services delivered. If an event of force majeure prevents or delays BMDS' performance, BMDS shall have the right to terminate the applicable Purchase Order, with immediate effect.
24. GOVERNING LAW.
The parties consent to the non-exclusive jurisdiction and venue of the federal and state courts of the State of Delaware in any and all actions, disputes, or controversies relating to this acknowledgment or any contract resulting herefrom and irrevocably consents to service of process by certified or registered mail, return receipt requested, mailed to its address on BMDS' books and records.
25. DOCUMENT INTERPRETATION.
Interpretation within this document is defined as follows:
1. headings are for convenience only and do not affect interpretation;
2. the singular includes the plural and conversely;
3. all words used herein shall be construed to be of such gender and number as the circumstances require;
4. reference to a party means BMDS and Customer exclusively;
5. any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation of this document; and
6. in the event of a conflict between the Purchase Order or associated documents and the terms and conditions herein, the terms and conditions herein including the Price Quotation and Purchase Order Acknowledgment shall govern.
If any provision of these terms and conditions is held by a court, government agency or other legal authority of competent jurisdiction to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not invalidate, void or render unenforceable any other portion of these terms and conditions but rather these terms and conditions shall be construed as if it did not contain the particular invalid, illegal or unenforceable provision or provisions, and the rights and obligations of the parties shall be construed and enforced accordingly.
27. SURVIVAL OF TERMS.
The termination or cancellation of any Purchase Order or any relationship created hereunder between the parties or the Delivery of Product or performance of Services under the Purchase Order shall not affect each party's obligations and rights under these terms and conditions, which by their nature, survive, notwithstanding such termination, cancellation, Delivery or performance.
No waiver will be valid unless in writing, signed by an authorized representative of BMDS and no waiver granted will release Customer from subsequent strict compliance herewith.
These General Terms and Conditions and the terms and conditions of the Purchase Order Acknowledgement supersede all prior purchase orders, negotiations, proposals, or communications between the parties, and, together with the Price Quotation and Purchase Order, contain the entire agreement of parties and may not be amended or modified orally. Any acceptance of the Purchase Order is expressly made conditional on Customer's assent to all terms, warranties and conditions contained herein and in the Purchase Order Acknowledgment which are additional to, different from, or conflicting with the terms of any purchase order or other communication received from Customer. BMDS specifically rejects and Customer disclaims any printed provisions in Customer's printed purchase orders including associated forms and/or documents. Neither the failure by BMDS to object to the Purchase Order or any other communication from Customer, nor any research on, or development, manufacture, shipment or otherwise of, Product and/or Services shall be deemed an acceptance of any terms, warranties or conditions which are additional to, different from, or conflicting with the terms, warranties and conditions contained in these General Terms and Conditions or in the Purchase Order Acknowledgment.
BMDS may assign its rights and obligations by giving Customer written notice thereof but without being obligated to obtain Customer's consent prior thereto.
Customer may not assign its rights nor delegate its obligations under any or all of its Purchase Orders without BMDS' written consent, which consent shall not be unreasonably withheld. Any such assignment or delegation without such consent shall be void.
This contract shall bind the heirs, personal representatives, successors and assigns of the parties hereto.
31. COMPLIANCE WITH APPLICABLE LAWS.
Customer will comply with all applicable laws affecting the purchase and use of Product. Customer agrees to maintain all registrations with governmental agencies, commercial registries, chambers of commerce, or other offices which may be required under law in order to properly conduct commercial business.
Prior to the date specified in the Price Quotation, Customer will (a) obtain and pay for all governmental or third party consents, permits, approvals, licenses and public and private easements necessary for BMDS' unrestricted access to any site or location needed for performance of the Services and Delivery of Product, and (b) will notify BMDS in advance of any requirements including all local laws, regulations, ordinances and the like to which BMDS is or will be required to comply in the rendering of Services and in the supplying of Product hereunder.
When required, Customer will comply with United States laws applicable to the use, sale or license of Product, including but not limited to the Foreign Corrupt Practices Act and the Export Administration Act.