TERMS AND CONDITIONS OF SALE
- OFFER AND ACCEPTANCE. The terms and conditions set forth below, in the quote, invoice and in the product manual, as applicable, contain the entire agreement between Medical Positioning, Inc., a Missouri corporation (“Company”), and the purchaser designated on the order (“Purchaser”), and becomes a binding contract on the earlier of (i) signed acknowledgement by Purchaser, (ii) submission of a purchase order, (iii) commencement of performance by Company, or (iii) shipment according to schedule of any or all the goods covered hereby. No change shall be made to these terms and conditions unless agreed to in writing by Company. Failure of either party to enforce any of such party’s rights hereunder shall not constitute a waiver of any of such rights or any other rights, whether hereunder or otherwise.
- TERMS OF PAYMENT. Payment terms are net 30 calendar days unless otherwise indicated on the quote or invoice, as applicable. In the event of conflict of terms between the quote and invoice, the quote shall govern unless mutually agreed by the parties. Company reserves the right, among other remedies, either to terminate this order or to suspend further deliveries upon Purchaser’s failure to make any payment as herein provided. Late payments shall bear interest until paid at the lesser of (i) 18% per annum and (ii) the highest rate permitted by applicable law. Purchaser shall pay all reasonable costs of collection incurred by Company in seeking or collecting any sums hereunder, including attorney’s fees and expenses.
- Insecurity. If in Seller’s sole judgment, Buyer’s financial condition or any other circumstance causes Seller to be insecure with respect to Buyer’s performance of any obligation under this Agreement (or any other agreement with Seller), Seller may accelerate and demand immediate payment of any amounts owed Seller, suspend performance, cancel an order, or require cash payment or satisfactory security before shipment.
- TAXES. All sales, use, excise or other taxes, and all penalties and interest arising therefrom, are strictly Purchaser’s responsibility and for Purchaser’s account. Wherever applicable, any tax or taxes will be added to the invoice as a separate charge to be paid by the Purchaser.
- DELIVERY. Unless otherwise specified, Purchaser is responsible for all shipping costs which will be prepaid and added to the invoice. All Products will be packaged, marked and prepared in accordance with good commercial practices to obtain the lowest shipping rates. All risk of loss, shall pass from Company to Purchaser upon loading by carrier at Company’s facility.
- DELAY. Company shall not be responsible for nonperformance or delay of performance resulting from any cause beyond the reasonable control of Company, including labor difficulty, government action or inaction, delay of a vendor, supplier or carrier, weather, war, civil disturbance, or acts of God. Any delay resulting from any such cause shall effect a corresponding extension of any date on which Company’s performance may be due. Purchaser shall pay reasonable storage charges to Company for Product ready for delivery from Company’s premises but not shipped within a reasonable time therefrom as a result of delay attributable to Purchaser.
- INSPECTION AND REJECTION. Any goods not rejected, in writing, within thirty calendar days after delivery by carrier shall be deemed accepted by Purchaser. Any goods rejected as aforesaid shall be available for pick-up within ten calendar days of rejection, unless otherwise unanimously extended by the parties, all at Purchaser’s expense. Purchaser will be responsible for a 30% restocking fee and all applicable duties, taxes, transportation costs and handling costs. In no case shall rejected goods be returned without first obtaining Company’s permission. Only unused goods will be considered for such return and are subject to a quality inspection by Company.
- CANCELLATION. An order may be cancelled by Purchaser only with Company’s consent and then upon terms that will indemnify Company against all loss.
- SPECIFICATIONS. Company reserves the right to change specifications for any goods, provided that such changes do not materially adversely affect Purchaser.
- COMPLIANCE. Purchaser will observe and comply with all applicable laws, rules, regulations and ordinances of the United States or any state, municipality or other governmental authority or agency that may apply to the goods the subject of this order.
- GOVERNING LAW; VENUE. These terms and conditions shall be governed by and construed, interpreted, and enforced in accordance with the laws of Missouri, without reference to its conflicts of law principles, and shall be binding upon and inure to the benefit of the respective heirs, successors, and assigns of each of the parties hereto. Purchaser shall, however, make no assignment of any right, obligations, or duties hereunder without Company’s prior written consent and any attempted assignment without Company’s prior written consent shall be void. All disputes arising out of or relating to this Agreement, or the breach or default of this Agreement, will be determined solely by a state court located in Missouri or a federal court located in Missouri, and Purchaser hereby irrevocably submits itself to the jurisdiction and venue of any such court and waives any and all objections to venue or convenience therein. Purchaser consents to service by mail at its address designated on the quote and invoice, such service to be effective three (3) regular business days after deposit in the United States mail, addressed as aforesaid, postage prepaid.
- WARRANTIES. NO EXPRESS WARRANTIES AND NO IMPLIED WARRANTIES WHETHER OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR OTHERWISE, OTHER THAN THOSE EXPRESSLY PROVIDED WITH ANY APPLICABLE PRODUCT MANUAL(S) (WHICH ARE MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES), SHALL APPLY TO PRODUCTS SOLD BY COMPANY, AND NO WAIVER, ALTERATION, OR MODIFICATION OF THE FOREGOING CONDITIONS SHALL BE VALID UNLESS MADE IN WRITING AND SIGNED BY AN EXECUTIVE OFFICER OF COMPANY.
- SEVERABILITY. The provisions of these terms and conditions, including any warranty in applicable product manual(s), will be deemed severable, and the invalidity or unenforceability of any one or more of the provisions hereof will not affect the validity and enforceability of the other provisions hereof.
- LIMITATION OF ACTION AND REMEDIES. Any and all claims, actions or suits by Purchaser in any way arising out of these terms and conditions (or the goods the subject thereof) shall be barred unless commenced within one (1) year after date hereof. Company shall not be liable for any consequential, incidental or exemplary damages arising out of any breach or nonperformance of this agreement. In no event shall Company’s liability for any breach or nonperformance exceed the contract price. Company may commence any action against Purchaser for nonpayment of any account or sum due at any time within any applicable statute of limitation.
- CONSENT TO CONDUCT BUSINESS ELECTRONICALLY. The parties may use and rely upon electronic records and electronic signatures (i) for the execution and delivery of the order and any other agreements, undertakings, notices, disclosures or other documents, communications or information of any type sent or received in accordance with these terms and conditions, and (ii) in providing their obligations or exercising their rights under these terms and conditions.
