Vanduzen Inc. dba MedCAD
TERMS AND CONDITIONS
BY ACCEPTING THE SHIPMENT(S) OF GOODS AND SERVICES, BUYER AGREES TO THE TERMS AND CONDITIONS OF PURCHASE SET FORTH ON CUSTOMER REQUEST DOCUMENTATION AND/OR PURCHASE ORDER AND ON ANY SHEETS OF ADDITIONAL SPECIFICATIONS, TERMS, AND CONDITIONS ATTACHED HERETO.
Customer (“Buyer”) and MedCAD (“Seller”) agree that these TERMS AND CONDITIONS (“AGREEMENT”) shall govern and control with respect to all purchases by Buyer from Seller. In the event these AGREEMENT of purchase conflict with prior AGREEMENT issued by Seller or any terms of a purchase order, the AGREEMENT herein shall prevail. Any modifications must be provided and agreed upon by other party in writing and signed by authorized representatives.
2. PRICES AND TAXES
Unless otherwise specified, the prices set forth by Seller under Agreement do not include applicable federal, state and local taxes, impositions, charges, tariffs and extractions. Billed charges shall not include taxes or charges for which Buyer has been furnished a valid exemption certificate.
Seller will submit invoices showing the following information: Buyer supplied purchase order number, item(s) delivered reference number, description of item(s), quantity of item(s), unit prices, each applicable tax, extended totals and any other information specified elsewhere herein. Payment of an invoice will not constitute acceptance of goods or services and will be subject to adjustment for errors, shortages, defects in the goods or other failure of Seller to meet the requirements of this AGREEMENT. Unless otherwise stated by AGREEMENT or herein, all invoices will be payable net thirty (30) days from the invoice date as shown on the applicable invoice.
4. PACKING AND SHIPMENT
Prices quoted by Seller may not include all shipping and handling charges. Unless otherwise specified, Seller will package and pack all goods in a manner that is: (a) in accordance with good commercial practice; (b) acceptable to common carriers for shipment at the lowest rate for the particular goods; and (c) adequate to insure safe arrival of the goods at the requested destination. Buyer may deduct from amounts owed to Seller any losses Buyer incurs for loss or damage to goods during the shipping process. Seller will mark all containers with necessary lifting, handling, and shipping information as needed and with an externally accessible or visible purchase order number(s), packing list of contents and date of shipment. No partial or complete delivery will be made prior to the due date or dates shown unless Buyer has requested this delivery or given consent.
5. F.O.B. POINT
Unless otherwise specifically provided on the face of this AGREEMENT, the products and services ordered hereunder will be delivered free/freight on board (F.O.B.) origin and insured if requested and paid for by Buyer.
6. RISK OF LOSS OR DAMAGE
Notwithstanding any prior inspections and irrespective of the F.O.B. point named herein, Seller will bear all risk of loss, damage or destruction to the ordered goods until final acceptance of the goods by Buyer at destination. Seller will bear the same risk with respect to any goods rejected by Buyer.
Buyer will pay only for maximum quantities ordered. Over-shipments will be held by Buyer at Seller’s risk and expense for a reasonable time awaiting return shipping instructions. Return shipping charges for excess quantities will be at Seller’s expense.
8. MATERIAL FURNISHED BY BUYER
Any material furnished by Buyer on other than a charge basis shall be deemed as held by Seller upon consignment and Seller agrees to pay for all such materials spoiled by it or not otherwise satisfactorily accounted for. Seller shall keep such material insured for benefit of Buyer at all times while in its possession.
(a) Seller warrants that all goods delivered will (i) be free from defects in workmanship, material, and manufacture; (ii) comply with the requirements of this AGREEMENT, including any drawings or specifications incorporated herein or samples furnished by Seller; (iii) where design is Seller’s responsibility, be free from defects in design. Seller further warrants that all goods and services delivered will be in compliance with all applicable laws and regulations, that Seller has good title to the goods furnished hereunder and that all goods purchased hereunder will be of merchantable highest quality and will be fit for the purposes intended. The foregoing warranties constitute conditions to this AGREEMENT. They are in addition to all other warranties, whether expressed or implied, and will survive any delivery, inspection, acceptance or payment by Buyer. All warranties run to the benefit of Buyer and its agents and customers.
(b) Buyer’s approval of Seller’s services, goods, or design will not relieve Seller of any warranties.
10. INSPECTION AND ACCEPTANCE
Notwithstanding any prior inspection or payments, all goods will be subject to final inspection and acceptance by Buyer within a reasonable time after delivery. In case any item does not meet the warranties specified herein or is otherwise not in conformity with the requirements of this AGREEMENT, Buyer will have the right to (a) require Seller to correct any defective or nonconforming item(s) by repair or replacement at no cost to Buyer;
(b) return the same at Seller’s risk and expense for full credit of items returned; (c) retain the goods and collect damages from Seller limited by the value of the unacceptable items or otherwise make an equitable adjustment in the pricing terms of the AGREEMENT; (d) cancel this AGREEMENT in whole or in part; (e) correct the defective or nonconforming goods itself and charge Seller with the cost of such correction.
11. CHANGE ORDERS
(a) Buyer may at any time request to suspend performance hereunder, increase or decrease the ordered quantities, change the due date or make changes in any one or more of the following:
(i) applicable drawings, designs, item(s) to deliver or specifications;
(ii) method of shipment or packing; and/or
(iii) place of delivery.
(b) If the change causes an increase in the cost or the time required by Seller for performance of this change and Seller so notifies Buyer, then an equitable adjustment will be made in the order price or delivery schedule or both. No claim by Seller for such an adjustment will be valid unless approved of or requested by Buyer.
(c) Nothing in this Section is intended to excuse Seller from proceeding with this AGREEMENT as a changed or amended AGREEMENT.
Buyer reserves the right to cancel any portion of this AGREEMENT (a) any time prior to acceptance; (b) if not shipped on or prior to the date specified; (c) if proceedings in bankruptcy are instituted by or against Seller, or against Seller’s property or (d) upon giving ten (10) days’ written notice to Seller if Seller breaches any obligation under this AGREEMENT and the breach is not cured to Buyer’s satisfaction by the end of the ten
(10) day notice period. If this AGREEMENT is terminated by Buyer, any dispute or claim for damages must be submitted in writing to Buyer within sixty (60) days after the effective date of the termination and no claim by Seller may exceed quoted or invoiced amounts for the item(s) provided and the additional costs Seller has incurred in the performance of this AGREEMENT; provided, however, that if this AGREEMENT is terminated by Buyer for breach, Buyer shall not be liable to Seller for any amount.
The failure of Buyer to enforce at any time any of the provisions of this AGREEMENT, to exercise any election or option provided herein or to require at any time the performance by Seller of any of the provisions herein will not in any way be construed to be a waiver of such provisions.
14. INTELLECTUAL PROPERTY
Seller guarantees that the goods and services described herein, and the sale or use of them, will not infringe any intellectual property rights. Seller agrees to indemnify and hold harmless Buyer, its agents, customers, successors, and assigns against any and all loss, damage, and liability (including costs and expenses) for actual or alleged infringement of any patent, copyright, trademark or other third party right arising out of the use or sale of the goods by Buyer, its agents or customers. If any injunction is issued as the result of any such infringement, Seller agrees, at Buyer’s option, to (i) refund to Buyer the amounts paid to Seller for the goods covered by the injunction or (ii) promptly furnish Buyer with acceptable and non-infringing goods. With respect to inventions made by Seller in the performance of this AGREEMENT, Seller grants to Buyer a permanent, fully paid up and irrevocable license to make or use goods incorporating such inventions.
(a) Seller agrees to indemnify and hold harmless Buyer its agents, customers, successors, and assigns against any and all loss, damage and liability (including costs and expenses) resulting from injury, including death, to persons or property related to actions of Seller or its sub-contractors incident to the performance of this AGREEMENT.
(b) Seller agrees to indemnify Buyer its agents, customers, successors, and assigns against any and all loss, damage and liability (including costs and expenses) resulting from any alleged defect in the goods, whether latent or patent, including allegedly improper construction and design or from the failure of the goods to comply with specifications.
(c) Seller warrants that there are no liabilities for royalties, mechanics liens or other encumbrances on the goods supplied and agrees to indemnify Buyer its agents, customers, successors, and assigns against any and all loss, damage and liability (including costs and expenses) against any such liabilities.
(d) Seller agrees to indemnify Buyer its agents, customers, successors, and assigns against any and all loss, damage and liability (including costs and expenses) arising out of or in connection with any breach by Seller of any of the AGREEMENT contained in this AGREEMENT.
The above indemnifications are in addition to all other rights of indemnification of Buyer against Seller. The provisions of this section shall survive the completion or termination of this AGREEMENT.
16. NON-DISCLOSURE OF CONFIDENTIAL MATTER
All specifications, drawings, samples and other data furnished by Buyer or Seller when identified as CONFIDENTIAL clearly identified will be treated by Seller and Buyer as confidential information, will be used only for the purpose of this AGREEMENT, will remain Buyer’s and Seller’s property as applicable and will be returned when made available to other party upon request. The provisions of this section shall survive the completion or termination of this AGREEMENT.
17. INDEPENDENT CONTRACTORS
Seller and any sub-contractor shall at all times be deemed independent contractors. In no event shall Seller or its agents, representatives or employees be deemed to be agents, representatives or employees of Buyer.
No right or obligation under this AGREEMENT (including the right to receive monies due) may be assigned by Seller without the prior written consent of Buyer and any purported assignment without such consent will be void. If any goods are to be made to Buyer’s design, all sub-contracting by Seller with respect thereto shall be subject to Buyer’s prior written consent.
Seller shall not use, nor refer to in advertising, publicity, promotion, marketing, client listings, or other public activities, any name, trade name, trade or service mark or any other designation of Buyer without express written permission from Buyer. Seller shall not advertise nor publish the fact that Seller has contracted to furnish Buyer the goods or services herein. Should Seller fail to observe this provision, Buyer shall have the immediate right to cancel this AGREEMENT without further liability.
Seller will carry insurance policies, including but not limited to product liability, commercial general liability, automobile liability and worker’s compensation. Seller will produce certificates evidencing such coverages upon request of Buyer. Such certificates shall provide that no expiration, termination or modification of the insurance coverage shall take place without giving thirty (30) days prior written notice to Buyer. Seller agrees to require its sub-contractors to comply with these insurance requirements as well.
21. FORCE MAJEURE
If either party is prevented from complying with obligations hereunder by reason of fires, explosions, floods, earthquakes, acts of God, war, invasion, terrorism, labor strikes, or freight embargoes, then upon prompt written notice to the other party, such obligations shall be suspended during the period of such disability. The disabled party shall make all reasonable efforts to remove such disability within twenty (20) days of giving such notice. If the disability is not removed within such time period, the non-disabled party shall have the right to immediately terminate this AGREEMENT upon written notice. In addition, during the period of disability, the non-disabled party may seek to have its needs met by others without liability to the disabled party or any extension of the term of this AGREEMENT.
22. NOTICE OF DELAYS
Whenever any event delays or threatens to delay the timely performance of this AGREEMENT, Seller will immediately notify Buyer of such event and furnish all relevant details. Receipt by Buyer of such notice will not constitute a waiver of the due dates hereunder.
23. TIME IS OF THE ESSENCE
Time is of the essence for this AGREEMENT.
If any portion of this AGREEMENT is invalid or unenforceable, the remainder of this AGREEMENT shall not be affected, and the remaining terms will continue in effect and be binding on the parties.
The remedies stated herein are in addition to all other remedies at law or in equity.
26. ENTIRE AGREEMENT
This AGREEMENT, including all purchase orders, together with any other documents incorporated by reference, constitute the entire agreement between Buyer and Seller, superseding all prior oral or written communications regarding AGREEMENT.
27. APPLICABLE LAW
This AGREEMENT will be governed by the laws of the State of Texas, without reference to its conflict of laws principles.
MC-173, Rev. B Page 1 of 1