SCE MEDICAL TERMS & CONDITIONS OF SERVICE
Effective from (15/Nov/2020)
Please read these Terms of Service (“Terms”) carefully as they contain important information about your legal rights, remedies, and obligations. By accessing or using SCE Medical Services (as defined below), you agree to comply with and be bound by these Terms.
All orders placed by the individual or entity (“Buyer”) for any standard products or custom products, generally referred to as products (“Products”) or services (“Services”) of SCE Medical (“Seller”) are subject to these Terms and Conditions of Service (these “Terms”), the order confirmation from Seller, if any, accepting the order for Products and/or Services (the “Confirmation”), the Custom Order (as hereafter defined), if any, and the Services Instrument (as hereafter defined), if any, whether or not specifically referenced therein. These Terms, together with any Confirmation, Custom Order and Services Instrument are, collectively, the “Agreement.” If any provision in a Confirmation, Custom Order or Services Instrument is inconsistent with these Terms, the provision in the Confirmation, Custom Order or Services Instrument, as applicable, shall govern. No order is binding upon Seller until received and accepted by an authorized representative of Seller. Seller accepts an order by issuing a Confirmation or by beginning to fulfil the order.
All prices quoted for Custom Products shall be effective for thirty (30) days only and are subject to change thereafter without notice. All prices for Standard Products and Services are subject to change at any time without notice, provided that Seller shall not change the prices of any Products and/or Services that are subject to an accepted order. Any prices listed in Seller publications and materials are intended as a source of general information only and not as an offer to sell, and all prices contained therein are subject to confirmation by Seller. Prices do not include transportation charges, insurance costs, export/import duties, licenses or fees, or any tax or governmental charge of any nature whatsoever.
- PAYMENT TERMS
All accepted orders are conditioned upon credit approval. Unless otherwise specified by Seller, all Products and Services shall be invoiced upon shipment to Buyer or upon completion of performance, as applicable. Payment terms for Custom Products, unless otherwise specified by Seller, shall be payable within 30 days from the date of invoice. All other amounts owed under any order are due within 30 days from the date of invoice. Any unpaid amount that is past due will bear interest at the lesser of 1.5% per month or the highest rate allowed by applicable law. Buyer shall reimburse Seller for all reasonable expenses, including attorneys’ fees and court costs, incurred in enforcing the collection of any amount past due. In addition to all other remedies available under the Agreement or at law, Seller is entitled to suspend the delivery of any Products or the provision of any Services, under this Agreement or any other agreement between the parties, if Buyer fails to pay any amount when due hereunder and such failure continues for 5 days following notice thereof. Buyer shall make all payments hereunder in U.S. dollars unless otherwise agreed by both parties in writing.
A written, purchase order signed by both parties is required for any Custom Products (each, a “Custom Order”). Cancellation, waiver or alteration of a Custom Order may only be made with the written consent of Seller and, in any event, is subject to an additional charge of 35% of the purchase price under the original Custom Order if cancellation, waiver or alteration occurs after design completion and submittal approval. In addition, Buyer will reimburse Seller for any non-recoverable costs and/or the amount of any fabrication incurred by Buyer in the performance of the Custom Order prior to cancellation, waiver of alteration.
Buyer may not return any Products without specific written authorization from Seller, and any return made without such authorization will be rejected. Seller is not responsible for any transportation or other charges incurred by Buyer due to failure to comply with this Section. All Products to be returned must have a Return Material Authorization (“RMA ‘) number. To be considered for credit, such Products must be in original, new condition. Products that are damaged or special ordered shall not be accepted for return and no credit will be issued. Returned Products must be shipped prepaid within 30 days of the RMA date in order for Buyer to be eligible for credit. No credit will be provided for Custom Products or for any Products which Seller has discontinued manufacturing.
Please refer to the warranty issued with and for the specific Product purchased. EXCEPT AS SET FORTH IN THE WARRANTY REFERENCED IN THE PRECEDING SENTENCE, SELLER MAKES NO WARRANTY WITH RESPECT TO THE PRODUCTS OR SERVICES, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Products manufactured by or Services performed by a third party (“Third Party Products”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Products and/or Services. Third Party Products are not covered by the warranty referenced above. Any warranties made or given by such third parties for the Third-Party Products which are assignable by their terms are hereby assigned by Seller to Buyer. FOR THE AVOIDANCE OF DOUBT, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Unless otherwise expressly agreed, all Products are delivered ex works Seller’s facility. If Products are delivered ex works, Seller will provide written notice to Buyer that the Products are available for shipping at the delivery point (the “Availability Notice”). Buyer shall take delivery of the Products within 7 days of Seller’s Availability Notice. If, for any reason, Buyer fails to accept delivery of any Products on the date fixed pursuant to the Availability Notice, or if Seller is unable to deliver the Products to the delivery point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations:
- risk of loss to the Products shall pass to Buyer;
- the Products shall be deemed to have been delivered; and
- Seller, at its option, may store the Products until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). Unless route and carrier are specifically stated, Seller reserves the right to route shipments at its discretion.
Seller will use reasonable efforts to comply with the delivery date specified in an accepted order or Confirmation (if any), but any such date is an estimate only, unless otherwise agreed in writing by the parties. Seller reserves the right to make delivery in instalments. All such instalments will be separately invoiced and paid for when due, without regard to subsequent deliveries.
Title to Products shall pass to Buyer upon delivery to Buyer at the Delivery point. Claims for shortages or other errors must be made in writing to Seller within 10 days of Buyer’s receipt of shipment and failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Buyer.
Prices do not include any federal, state or local sales, use, excise, value added or similar taxes (collectively, “Taxes”). Buyer shall pay any and all Taxes applicable to the sale, repair, inspection, maintenance, modification, or use of the Products (other than any Taxes payable on Seller’s net income), or, in lieu thereof, Buyer shall provide Seller with a tax exemption certificate acceptable to the relevant taxing authorities.
Seller will provide Services as specified in the quotation, if applicable, and in accordance with any other document signed by the parties with respect to Seller’s provision of Services (a “Services Instrument”). Buyer must contact Seller to schedule the performance of any Services at least four weeks in advance. Seller will perform Services during normal business hours (Monday through Friday from 8:00 am until 4:30 pm CST). If Buyer requests Services outside of these parameters, additional charges will apply.
LIMITATION OF LIABILITY
SELLER SHALL NOT BE RESPONSIBLE TO BUYER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF WHATSOEVER NATURE, OR FOR ATTORNEYS’ FEES. LOSS OF USE, LOSS OF MARKET SHARE, OR LOST PROFITS HOWSOEVER THESE MAY BE CHARACTERIZED. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY AMOUNT WHICH IN COMBINATION WITH ALL CLAIMS BY BUYER AGAINST SELLER RELATED TO THE AGREEMENT EXCEEDS THE PRICE OF THE PRODUCTS AND/OR SERVICES.
BUYER SHALL INDEMNIFY AND HOLD HARMLESS SELLER, AND ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES AND EXPENSES (INCLUDING ATTORNEYS’ FEES AND OTHER COSTS OF DEFENDING ANY ACTION) THAT IT MAY SUSTAIN OR INCUR AS A RESULT OF THE USE, OPERATION OR POSSESSION OF THE PRODUCTS AND/OR SERVICES BY BUYER OR ITS AFFILIATES, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES, THE NEGLIGENT OR WILLFUL ACT OR NEGLIGENT OR WILLFUL OMISSION OF BUYER OR ITS AFFILIATES, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES OR THE ALTERATION OR MODIFICATION OF THE PRODUCTS AND/OR SERVICES OR THE USE OR COMBINATION OF THE PRODUCTS AND/OR SERVICES WITH OTHER PRODUCTS, DEVICES OR SERVICES BY BUYER OR ITS AFFILIATES, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES.
As collateral security for the payment of the purchase price of the Products and/or Services, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Products sold hereunder, 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 section constitutes a purchase money security interest under the applicable Uniform Commercial Code.
A party (the “Receiving Party”) shall keep in strict confidence all information which is of a confidential nature (including any technical or commercial knowhow, specifications, inventions, processes or initiatives) and has been disclosed to the Receiving Party by the other party (the “Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain (collectively, “Confidential Information”). The Receiving Party shall restrict disclosure of the Disclosing Party’s Confidential Information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Agreement, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. The Receiving Party shall remain liable for a breach of such obligations by the Receiving Party’s employees, agents and subcontractors. The Receiving Party shall only use or make copies of Confidential Information (including any reproductions, extracts or analyses thereof) in connection with and to the extent necessary for the purposes of the Agreement.
Receiving Party agrees to comply with all applicable laws and to direct its representatives to comply with all applicable laws, with respect to all information provided to it and its representatives by Disclosing Party and its representatives.
All intellectual property rights in, or relating to, the Products and/or Services, including any modifications, enhancements, improvements or derivative works therein or thereto, are owned by or licensed to Seller and nothing herein shall have the effect of transferring the ownership of such intellectual property rights to Buyer. If, by operation of law or otherwise, Buyer is deemed to own any such intellectual property rights, Buyer hereby assigns any and all such rights to Seller. In no event shall Buyer duplicate, attempt to duplicate, reverse engineer, disassemble or decompile the Products. In the event of any third party demand, claim or action alleging that the proper use of the Products and/or Services by Buyer in accordance with any instructions or directions issued with or in relation to such Products and/or Services by Seller infringes any third party patent or other intellectual property right, Buyer shall: (i) promptly notify Seller in writing of such claim; (ii) not make any admission in relation to or attempt to settle or compromise the claim; (iii) give Seller express authority to conduct all negotiations and litigation, and to settle all litigation, arising from such claim; and (iv) provide Seller with all available information, documents and assistance as Seller may reasonably require, including without limitation ceasing to use the Products and/or Services if deemed reasonably necessary by Seller until the infringement claim is resolved.
Seller may also, at any time, at its option: (i) procure for Buyer the right to continue to use the Products and/or Services in question, free of any liability for such infringement; or (ii) direct Buyer to cease use of and not market or sell such Products and/or Services and (a) modify the Products and/or Services in question so that they become non-infringing; (b) substitute the Products and/or Services in question with functionally equivalent non-infringing Products and/or Services; or (c) refund the price paid by Buyer for the infringing Products and/or Services. This section states the entire liability of Seller for any infringement of third party intellectual property rights. Buyer shall indemnify Seller from and against all losses, damages, costs, liabilities and expenses (including legal expenses) arising out of or in connection with any third-party demand, claim or action alleging that any Product manufactured, or Service provided by Seller in accordance with designs and/or specifications provided to Seller by Buyer infringes any patent or other intellectual property right belonging to a third party.
Seller will not be liable for any delay or failure in the performance under the Agreement, if such delay or failure is, directly or indirectly, caused by, or in any manner arises from, fires, floods, accidents, civil unrest, acts of God, war, strikes, labor difficulties, shortage of labor, fuel, power, materials, or supplies, transportation delays, any law, order, regulation, direction or request of any governmental authority having or claiming to have jurisdiction over Seller, insurrection, riots, national emergencies, terrorism, or any other causes beyond Seller’s reasonable control.
COMPLIANCE WITH LAW
In performing its obligations and exercising its rights under the Agreement, Buyer shall, at all times, act ethically and in compliance with all applicable laws of Georgia, Turkey or Romania and any jurisdiction in which Buyer is established or conducts operations relating to the Agreement, including (without limitation) any applicable laws in force from time to time regarding bribery, fraudulent acts, corrupt practices and/or money laundering and any applicable laws in force from time to time regarding import/export regulations, tax and/or customs and duties (the “Import/Export Legislation”). Any orders for Products to be exported from Georgia, Turkey or Romania shall be accepted subject to Government approval for export in such country where applicable.
Buyer expressly acknowledges that a Product (including any technical information related to such Product) may also be subject to the Import/Export Legislation of the country into which the Product is sold, and the Buyer shall abide by such Import/Export Legislation. Buyer shall ensure that the Products (including any technical information related to such Product), and any other products or technology acquired from Seller under the Agreement, will not be exported, sold, diverted, transferred or otherwise disposed of in violation of the Import/Export Legislation, either in their original form or after being incorporated into other products or as part of a resale by Buyer.
Buyer’s obligation shall be governed by, and construed in accordance with, the internal laws of ____________, without regard to conflicts of law rules. Buyer hereby irrevocably agrees that all disputes arising out of or relating to the Agreement or the Products sold hereunder that cannot be resolved by the parties shall be resolved only by the State or federal courts located in ______________. Buyer hereby consents and submits to the exclusive jurisdiction and venue of such State and federal courts and waives any objection or right to contest said jurisdiction or venue or that any such action or proceeding was brought in an inconvenient court.
It is agreed that either party may communicate with the other by electronic means. In the case of a controversy or dispute between a translation of the Agreement and the English language original, the English language original shall control for all purposes. Each party agrees that electronic copies, facsimiles or other reliable reproductions of these Terms may be substituted in lieu of the original writing for any and all purposes for which the original writing could be used, provided that such copy, facsimile or other reproduction is a complete reproduction of the entire original writing.
This Agreement shall not be assigned by either party without the prior written consent of the other party; provided, however, that Seller may assign or transfer this Agreement to any third party in connection with a merger, acquisition, reorganization, sale or substantially all its assets or stock or any similar event, without the consent of Buyer.
CLASS ACTION WAIVER
You understand and agree that you and SCE Medical may each bring claims in arbitration against the other only in an individual capacity and not on a class, collective action, or representative basis (“class action waiver”). You understand and agree that you and SCE Medical both are waiving the right to pursue or have a dispute resolved as a plaintiff or class member in any purported class, collective, or representative proceeding.
The arbiter shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbiter shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. The arbiter may award declaratory or injunctive relief only in favour of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claims.
The Agreement is the entire agreement with respect to the subject matter of any order. NO ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS, OR ANY MODIFICATIONS, CHANGES OR AMENDMENTS TO THE AGREEMENT SHALL BE BINDING ON BUYER, EXCEPT THOSE THAT AN AUTHORIZED REPRESENTATIVE OF SELLER EXPRESSLY AGREES TO IN WRITING. Any additional or different terms or conditions already or hereafter proposed by Buyer on any purchase order, in any other writing or communication, or otherwise, are hereby rejected and shall not apply. The lack of specific objection by Seller to any additional, modifying or deleting provisions contained in any communications from Buyer shall not be construed either as a waiver of the terms of the Agreement or as an acceptance by Seller of any deviation from the terms of the Agreement. The issuance of any order by Buyer shall be deemed to be Buyer’s agreement to be bound by the terms and conditions of the Agreement. Notwithstanding anything to the contrary herein, any clerical and or typographical errors in the Agreement are subject to correction by Seller without notice to Buyer.