Terms of Sale

TERMS OF SALE

The terms and conditions of this invoice apply to all products (“Products”) and/or services (“Services”) purchased by Buyer from Seller. These “Terms of Sale” supersede the terms and conditions of any written agreement between the parties, unless such written agreement is executed by an authorized representative of Seller, any Buyer purchase order or other document, or any oral agreement between the parties. In the event of any conflict or inconsistency between these Terms of Sale and a separate document signed by both parties, the terms of the separate document signed by both parties shall control. No provision in either party’s purchase order or in any other business form employed by either party, excluding a separate document signed by both parties, will supersede these Terms of Sale. No prior course of dealing or usage of trade shall affect this invoice or be admissible to explain, modify, or contradict this invoice and the agreement arising therefrom  (collectively “Agreement”). For purposes of this Agreement, the term “Supplier” means a manufacturer, vendor, or other supplier of a Product that is purchased by Seller for distribution.

 

  1. Credit and Payment. All payments for Products and/or Services must be received by Seller immediately at the date of invoice, unless otherwise agreed to by the parties. Any invoiced amount remaining unpaid shall be "past due." Past due balances are subject to an interest charge of fifteen and one-half percent (15.5%) per month. Any interest charged and collected in excess of applicable state law shall be returned. If Buyer fails to pay any or all of the invoiced amount when due or if Buyer's credit or financial status erodes or otherwise renders Seller insecure, Seller may, in its sole discretion, without further notice immediately: (i) suspend Seller's performance or cancel all or any part of an order hereunder, (ii) change any payment term to a payment term determined by Seller (including imposing the requirement of cash payment upon delivery); (iii) pay any incentives, rebates, fees, or other discount arrangements net of any amounts due hereunder, and any unauthorized deductions and service charges and terminate and/or declare Buyer ineligible for any incentives, rebates, fees, or other discount arrangements; (iv) declare immediately due and payable all other amounts invoiced by Seller to Buyer regardless of when such payments would otherwise be due from Buyer, and/or (v) increase the prices for Products and/or Services. Any discrepancy between any order placed by Buyer and Seller's corresponding shipment(s) must be reported to Seller for resolution within three (3) days of Seller's invoice date, except for price or payment discrepancies or any claims for reimbursement, which must be reported to

Seller for resolution within thirty (30) days of Seller's invoice date. Seller shall have no obligation to resolve and Buyer shall hold Seller harmless and waives any rights to any discrepancy or to issue any credit or refund, or to replace any goods if claim therefore is not made within said applicable three (3) or thirty (30) day period. All requests for proof of delivery for reasons other than shipment, price or payment disputes must be made within forty-five (45) days of Seller’s invoice date. If the payment term due date falls on a weekend day or holiday, payment is due and payable on the succeeding business day.

 

  1. Chargebacks. In consideration of Seller allowing Buyer to purchase Products at discounted prices, Buyer agrees that Seller will be paid the difference between Seller’s acquisition cost and the full retail price of the Product from the applicable Supplier (“Chargeback(s)”). In the event Seller is denied any Chargeback from a Supplier as a result of Buyer providing incomplete, inaccurate, or incorrect information to Seller or Supplier, Buyer will be liable to Seller for such Chargeback amount including any administrative or legal costs that may arise from said Chargeback.

 

  1. Reporting and Disclosure Obligations. THE PRICES ON THIS INVOICE MAY BE SUBJECT TO REBATES, CREDITS AND OTHER PRICE ADJUSTMENTS. BUYER IS OBLIGATED TO PROPERLY DISCLOSE AND APPROPRIATELY REFLECT ALL DISCOUNTS, INCLUDING REBATES, IN CLAIMS AND COSTS SUBMITTED TO FEDERAL AND STATE GOVERNMENT HEALTH CARE PROGRAMS (INCLUDING MEDICARE AND MEDICAID), AND TO PROVIDE THIS INVOICE AND OTHER DISCOUNT DOCUMENTATION TO GOVERNMENT AUTHORITIES ON REQUEST, IN

ACCORDANCE WITH ALL APPLICABLE LAWS AND REGULATIONS, INCLUDING 42 USC 1320A-7B(B) AND THE DISCOUNT SAFE HARBOR.

 

  1. Shipment, Risk of Loss and Title. Except for Seller Product shipments to individuals made at the direction of Buyer, title and risk of loss for the Products will pass at the time the Products reach their designated destination for both outbound shipments and returns, except that drop shipments directly from a Supplier will be shipped in accordance with Supplier’s shipping policies. For Seller Product shipments to individuals made at the direction of Buyer, title to the Products will

pass to Buyer at the time the Products leave Seller’s distribution center, but risk of loss will remain with Seller until the Products reach their designated destination. The cost of shipment, if any, has been paid by Seller and added to this invoice. Emergency orders, rush orders, orders for Products not regularly stocked by Seller’s local servicing distribution center, Products dropped shipped from Supplier, and orders not regularly scheduled are subject to an added shipping and handling charge determined by Seller and disclosed to Buyer prior to or at the time of order.

Seller shall have the right to ship the Products at all times via its own vehicle or a carrier selected by Seller.

 

  1. Exchange. Exchanges are only acceptable if the Buyer has received a damaged Product and the Buyer requests an exact same Product. Buyer must notify Seller within Five (5) days of the occurrence. Seller will be responsible for all costs associated with the exchange of said transaction.

 

  1. Gift. If order is marked as “Gift” at the time of purchase and the designated destination is Buyer’s address Buyer will received a Store Credit for the value of the return as defined in the Return Goods Policy. Seller will issue a “Store Credit Memo” to the Buyer. If order is marked as “Gift” at the time of purchase and shipped to a Third Party by Buyer. Seller will notify the Buyer of issuance of “Store Credit Memo”.

 

  1. Shipping. It is the seller's responsibility to provide buyer tracking information with 24 hours of the packages being shipped. Shipping charges are non-refundable. Buyer is responsible for the difference between the shipping paid by the Seller and shipping fees collected from Buyer at the time of checkout, in the case of returns which did not result from seller's discrepancies. The difference in shipping fees shall be deducted from the Credit. Buyer is responsible for the return shipping of all returns.

 

  1. Minimum Order Requirement. Minimum orders may be subject to Seller’s minimum order requirement in effect and quoted at the time of order. For orders less than such minimum order requirement or orders placed via telephone or facsimile, Seller may add to the invoice a handling charge determined by Seller and disclosed to Buyer prior to or at the time of order.

 

  1. Product Recommendations. Seller may make available to Buyer certain recommendations concerning products that are comparable, functionally equivalent, clinically equivalent, or equivalent to other products used or identified by Buyer (“Equivalency Recommendations”). Buyer agrees and stipulates that in making any Equivalency Recommendation, Seller is relying solely on the independent skill, knowledge and judgment of its suppliers or others in the industry and is not independently providing medical product information upon which Buyer can rely in order to make its product selection decision. Buyer agrees and stipulates that in making product decisions Buyer is relying on its independent professional judgment. Buyer hereby agrees to waive, release, indemnify and hold Seller and its affiliates harmless from any claim arising from an Equivalency Recommendation. Buyer agrees and stipulates that it is a sophisticated user of medical products and it agrees and stipulates that it is a learned intermediary between Seller and the end user/patient or is a well award end user/patient. THESE EQUIVALENCY RECOMMENDATIONS MAY BE MADE VERBALLY, IN WRITING OR VIA A DATABASE. THE EQUIVALENCY RECOMMENDATIONS ARE RECOMMENDATIONS ONLY AND ARE NOT REPRESENTATIONS OR WARRANTIES CONCERNING ANY PRODUCT

PERFORMANCE OR EQUIVALENCY AND ANY SUCH REPRESENTATIONS OF WARRANTY ARE HEREBY DISCLAIMED. THESE EQUIVALENCY RECOMMENDATIONS ARE BASED UPON MATERIALS SUPPLIED BY THE BUYER’S

SUPPLIER AND OTHER INDUSTRY–AVAILABLE INFORMATION.

 

  1. Data. Buyer acknowledges that Seller will provide information and reports to Suppliers, and other third parties relating to Buyer’s purchases from Seller. Buyer

hereby waives any rights of confidentiality with respect to such information to the extent necessary to allow Seller to provide such information to Suppliers, and other third parties. This information will not include an patient information demographic, at most, will be shared if deemed necessary expressively for marketing and market evaluation purposes.

 

  1. Resale of Products. Buyer hereby certifies that it is purchasing Products from Seller for its own use and will not resell or redistribute Products, unless otherwise agreed to by the parties in writing.

 

  1. Return Goods Policy. Subject to applicable law, Seller will process returned goods for Products purchased from Seller, in accordance with its then standard Return Goods Policy. Seller’s current Return Good Policy is as follows:

All requests for the return of Products must have a return authorization number issued by Seller’s customer service department. The return authorization number can be requested by clicking the "Contact Us" link, located at the bottom of all Medsitis webpages, and providing your order number as reference.

All returned Products must be: (i) returnable to Supplier; (ii) in the original unopened packaging; and (iii) in resalable condition, unless such Products are not in original unopened packaging or resalable condition due to the fault of Seller.

Products that are: (a) special order Products; (b) custom Products; (c) Products not available for general or unrestricted distribution; (d) gift cards; (e) Products deemed unsanitary; (f) fabrics; (g) Hazardous materials; (h) flammable liquids or gases; and (i) clearance Products are not returnable.

The amount of credit on any given return, as described below, will be issued no later than thirty (30) days after the receipt of the merchandise and necessary documentation and the examination and inspection of such return at the local Seller distribution center.

Products shipped in error by Seller and nonconforming Products – FULL CREDIT – if notified within five (5) days and returned within thirty (30) days of date of invoice.

Products shipped that are damaged or do not meet Seller standard quality – FULL CREDIT – if notified within five (5) days and returned within thirty (30) days of date of invoice.

Locally or Non-locally stocked Products notified within fourteen (14) days and returned within thirty  (30) days of date of invoice – 20% RESTOCKING CHARGE.

Locally stocked Products notified after fourteen (14) days and returned after thirty (30) days of date of invoice – 40% RESTOCKING CHARGE.

Non-locally stocked Products that are notified after (14) days returned after thirty (30) days of date of invoice - 50% RESTOCKING CHARGE (plus any additional costs incurred in returning such Products to Supplier).

At anytime if the Supplier is deemed not at fault Buyer will be responsible for any shipping cost incoming and/or outgoing. Supplier will reserve the right to waive any such fees at Supplier discretion.

Notwithstanding anything above to the contrary, Buyer shall receive FULL CREDIT on any Products returned as the result of a recall or defective condition. It is the responsibility of the Buyer to report any recalls they have acquired knowledge of immediately. Any items received defective must be reported within fifteen (15) days.

Seller is not responsible for items shipped by Buyer without proper authorization or shipped to addresses not expressly instructed in writing.

Buyer is responsible for dispatching products that are rejected for non-compliance. Any package not dispatched within five (5) days from written notice will be disposed as unusable goods.

A Credit Memo will automatically be emailed to the email address provided by Buyer stating refund amount.

Buyer must provide a tracking number to Seller upon request.

Buyer is responsible for the delivery of the return to Seller’s authorized facility.

 

  1. Late or Missing Refunds. If the Buyer’s refund is not received the following steps must be taken:

Buyer must re-check statement received from their financial institution.

Contact financial institution and confirm institution polices, as some institutions take longer than others to post credits to statements.

Seller recommends, to prevent excessive efforts from all parties involved, Buyer should consult Buyer’s financial institution in an informative manner instead of a complaint as this delays any credits due to financial institute’s investigation of the incident and may cause unnecessary chargeback.

It is not the intent of Seller to prevent Buyer from initiating a chargeback; Refer to “Chargeback” section above.

Seller issues Credit Memo, only, after the Credit Memo is extended to the processor 

 

  1. Excusable Delays. If a party is unable, wholly or in part, by reason of an act of God or any other reason beyond the reasonable control of the party, including unavailability of Products, to carry out its obligations hereunder (other than the obligation to make money payments), that party shall give the other party written notice thereof with reasonable particulars concerning it. During the period of delay, the obligations of all parties hereunder (other than the obligation to make money payments), shall be suspended. The affected party shall use reasonable due diligence to continue performance as quickly as possible. Except for the obligation to pay money, a party will not be liable to the other party for any failure or delay in

performance caused by fires, shortage of materials, backorders, delay by manufacturer or transportation, government acts, acts of terrorism, or any other matters beyond the first party's reasonable control, and such failure or delay will not constitute a material breach of this Agreement.

 

  1. Taxes; Enforcement Costs. All amounts payable to Seller under this Agreement are exclusive of all sales, use, value-added, withholding, and other taxes and duties. Buyer will promptly pay, and indemnify Seller against, all taxes and duties assessed in connection with any such amounts, this Agreement and its performance by any authority within or outside of the U.S., except for taxes payable on Seller’s net income. In the event it becomes necessary for either party to take action to collect any sums due or enforce any other provisions of this Agreement, the prevailing party shall be entitled to recover all costs and expenses of collection, including without limitation, reasonable attorney’s fees and court costs.

 

  1. Time for Bringing Action. Any action of any kind arising out of or in any way connected with this Agreement, other than collection of outstanding payment obligations, must be commenced within six (6) months upon which the cause of action accrued.

 

  1. Non-Disposable Products. Non-disposable Products, such as furniture and equipment, sold by Seller may be refurbished or reconditioned. This information will be provided to the Buyer at the time of sale.

 

  1. Disclaimer. SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY OF ANY PRODUCTS OR THEIR FITNESS FOR ANY PARTICULAR USE OR PURPOSE. BUYER SHALL LOOK TO THE MANUFACTURER OF PRODUCTS AND THE PROVIDER OF SERVICE FOR ANY WARRANTY THEREON. NO AGENT, EMPLOYEE, OR REPRESENTATIVE OF SELLER HAS ANY AUTHORITY TO MAKE ANY AFFIRMATION, REPRESENTATION, OR WARRANTY CONCERNING PRODUCTS NOT SET FORTH IN THIS AGREEMENT.

BUYER SHALL NOT HOLD SELLER LIABLE FOR ANY DEFECT IN PRODUCTS OR SERVICES, REGARDLESS OF KIND. BUYER AGREES TO FILE SOLELY WITH THE MANUFACTURER OF THE PRODUCTS OR THE PROVIDER OF SERVICE ANY CLAIM OR LAWSUIT ALLEGING LOSS, INJURY, DAMAGE, OR DEATH ARISING OUT OF OR

CAUSED BY THE USE, SALE, DISTRIBUTION, OR POSSESSION OF PRODUCTS OR SERVICES. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER UNDER, IN CONNECTION WITH, OR RELATED TO THIS AGREEMENT FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY, OR OTHERWISE, (INCLUDING LOST PROFITS) FROM ANY CAUSE, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM ANY UNAVAILABILITY OF,

DEFECT IN, OR MISSHIPMENT OF PRODUCTS OR THE PROVISION OF SERVICES, AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

A REQUEST FOR CANCELLATION DOES NOT AUTOMATICALLY CONSTITUTE THE ORDER WILL BE CANCELLED. CANCELLATIONS ARE TREATED ON A CASE-BY-CASE BASES. ONCE AN ORDER IS PLACED IT SHOULD ONLY BE ASSUMED CANCELLED IF A WRITTEN CONFIRMATION IS RECEIVED BY THE CUSTOMER.

  1. Assignment. Buyer shall not assign or transfer any interest under any order accepted by Seller or delegate any obligation hereunder without the prior written consent of Seller.
  2. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Mississippi, without any construction or

 interpretation against Buyer or Seller. Buyer and Seller irrevocably consent to the exclusive jurisdiction of the state courts of Forrest County, Mississippi and the federal courts situated in Hattiesburg, Mississippi, in connection with any action to enforce the provisions of this Agreement, to recover any damages or to obtain any other relief with respect to any matter connected with or arising from this Agreement or the transactions contemplated therein, including without limitation, breach or default under this Agreement, or otherwise arising under or by reason of this Agreement. Notwithstanding the foregoing, if any terms that are unique to federal government contracting are subject to interpretation, such terms shall be construed and interpreted according to the federal law of government contracts as enunciated and applied by federal statutes, regulations, federal judicial bodies, boards of contract appeals, and other judicial and quasi-judicial agencies of the government.

 

  1. Government Contracts. Unless specifically notified and agreed to in writing by Seller, Seller will not be bound by the terms and conditions of any government contracts to which Buyer may be a party.