1. Applicability. These terms and conditions of sale (“Terms”) are the only terms which govern the sale of the goods (“Goods”) by Medifab Limited Partnership (“Medifab”) to the buyer named on the purchase order (“Buyer”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. These Terms, together with any quotation, written contract, purchase order, confirmation or invoice submitted by Medifab, comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms are exclusive and prevail over any of the terms and conditions of purchase or similar document provided by Buyer, even if they purport to supersede these Terms. Fulfillment of Buyer’s purchase order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
2. Acceptance and Delivery. Medifab shall not have any obligations under a purchase order for Goods submitted by Buyer unless and until Medifab acknowledges its acceptance of the purchase order in writing. If a purchase order has been accepted by Medifab, the Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order. Buyer may not cancel any legally binding order for Goods without Medifab’s consent, which consent may be granted on such terms as determined at Medifab’s discretion. Medifab shall not be liable for any delays, loss or damage in transit. Unless acknowledged otherwise by Medifab in writing, Medifab shall deliver the Goods Ex Works (“EXW” Incoterms 2010) at Medifab’s facility in Rolleston, New Zealand (“Delivery Point”) using Medifab’s standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods within 10 days of Medifab’s written notice that the Goods have been made available at the Delivery Point. Medifab may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order. If for any reason Buyer fails to accept delivery of any of the Goods, or if Medifab is unable to deliver the Goods at the Delivery Point because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) the Goods shall be deemed to have been delivered; (ii) the risk of loss to the Goods shall pass to the Buyer; and (iii) Medifab, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
3. Purchase Money Security Interest. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Medifab a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Delaware Uniform Commercial Code.
4. Inspection and Rejection of Nonconforming Goods. Buyer shall inspect the Goods within 10 days of receipt (“Inspection Period”). Buyer shall be deemed to have accepted the Goods unless it notifies Medifab in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Medifab. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents. If Buyer timely notifies Medifab of any Nonconforming Goods, Medifab shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods. Buyer shall ship or dispose of any Nonconforming Goods at the direction and expense of Medifab. Buyer acknowledges and agrees that the remedies set forth in this Section 4 are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under this Section 4, Buyer has no right to return Goods purchased under these Terms to Medifab.
5. Purchase Price. The Purchase Price for the Goods shall be as specified by Medifab in its quotation. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Medifab’s income, revenues, gross receipts, personnel or real or personal property or other assets. If Buyer submits a claim or request for Medicare or Medicaid payment for Goods purchased from Medifab, Buyer is responsible for fully and accurately reporting to applicable government agencies all discounts, rebated, incentive payments, bonuses and the like applicable to such Products, including those reflected herein and others which may apply.
6. Payment Terms. Buyer shall pay all invoiced amounts due to Medifab as set forth in its quotation. Buyer shall make all payments hereunder by wire and in US dollars. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Medifab for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Medifab does not waive by the exercise of any rights hereunder), Medifab shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Medifab, whether relating to Medifab’s breach, bankruptcy or otherwise.
7. Intellectual Property. Intellectual Property means any and all patents, copyrights, trademarks, trade names, trade secrets, and other proprietary rights of Medifab or its affiliates, and all applications and registrations therefore. Medifab is the exclusive owner or licensee of all rights, title, and interest in and to the Intellectual Property embodied in, related to, or associated with the Goods.
8. Limited Warranty. Medifab’s exclusive Limited Warranty for the Goods is set forth on https://www.spexseating.com/us/warranty/
9. Compliance with Laws. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations to Medifab. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under these Terms or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Medifab may terminate the sale of Goods to Buyer if any governmental authority imposes antidumping or countervailing duties or any other penalties or restrictions on the Goods.
10. In addition to any remedies that may be provided under these Terms, Medifab may terminate the sale of Goods to Buyer if Buyer: (i) fails to pay any amount when due under these Terms; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
11. No waiver by Medifab of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by Medifab. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
12. Confidential Information. All non-public, confidential or proprietary information of Medifab, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Medifab to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with these Terms is confidential and may not be disclosed to third parties unless authorized in advance by Medifab in writing. Upon Medifab’s request, Buyer shall promptly return all confidential documents and other materials received from Medifab. Medifab shall be entitled to injunctive relief for any violation of its obligations under this Section 11. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure, and can be so proven by documentary evidence; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party, and can be so proven by documentary evidence.
13. Force Majeure. Medifab shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached its obligations to Buyer, for any failure or delay in fulfilling or performing any obligation when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Medifab including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 90 days, Buyer shall be entitled to give notice in writing to Medifab to terminate its obligations under a purchase order.
14. Buyer shall not assign any of its rights or delegate any of its obligations to Medifab without the prior written consent of Medifab. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations to Medifab.
15. No Third-Party Beneficiaries. These Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
16. Governing Law. These Terms are governed by and shall be construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware. The UN Convention on Contracts for the International Sale of Goods (CISG) is disclaimed by the parties and shall have no effect on the purchase and sale of the Goods.
17. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of Buyer’s purchase order or to such other address that may be designated by the receiving party in writing, or via e-mail to the e-mail addresses designated by the parties. If delivered via mail, all Notices shall be delivered by Fedex or DHL. Except as otherwise provided in these Terms, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
18. If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.