DEFINITIONS: “Agreement” means the “Sale Agreement” to which this document is attached, these Terms & Conditions of Sale as described below and the addenda checked “Included” on the face of the Sale Agreement (collectively, “Seller Terms and Conditions”) when accepted and executed by Seller. “Buyer” means the party placing an order for Seller’s products. “Product(s)” means any components, items, replacement items or any other materials, and any part thereof supplied to Buyer pursuant to the Agreement. “Seller” means The Caregiver Company, LLC.
TERMS AND CONDITIONS BINDING: The terms and conditions of any purchase of Products from Seller are strictly limited to the Seller Terms and Conditions, including without limitation, any Included Addenda. Any attempt by Buyer to attach or insert additional, different or inconsistent terms and conditions of sale in its request for a quotation, acknowledgement or acceptance of an Agreement or otherwise, are rejected and will be void and of no effect. No amendment, changes or additions of any kind to the Seller Terms and Conditions and no purported waiver of any kind will be binding on Buyer unless agreed to in a writing signed by an authorized representative of Buyer. Seller will not be obligated to sell any other or additional Products to Buyer upon the terms and conditions set out herein. Any further order of Products must be accepted by Seller upon terms and conditions applicable to any further orders.
PRICES: Prices are subject to change after 30 days from contract acceptance by Seller unless the Agreement designates prices as “firm.” Prices are based on quantities specified within the quotation and any change to the quoted bill-of-materials may affect quoted prices and delivery commitments. Minimum lot charges for orders requiring non-standard parts or in minimal quantities are stated in the Agreement along with any price adjustment terms for an Agreement requiring deliveries over an extended period. Stated prices do not include applicable sales, use, excise or similar taxes.
PAYMENT: Unless other payment terms are stated on the face of the Agreement or provided in a Payment Addendum initialed by the parties and attached to the Agreement, payment must be made in United States dollars within the terms specified within Agreement and stated on Seller’s invoice. Seller reserves the right to charge a late payment fee equal to the lesser of (i) one and one half percent (1 ½ %) per month or (ii) the maximum rate allowed by law. Buyer agrees to reimburse Seller for any and all costs and expenses (including without limitation reasonable attorneys’ fees) incurred by Seller to collect any amount owed to it, enforce any of its rights or seek any of its remedies hereunder. If Seller has agreed to invoice amounts due hereunder to another person or organization Buyer will remain liable for payment hereunder. The Invoices provided to Seller may not reflect all discounts, rebates or other reductions in the price of Products and the net cost of the Products to Buyer. Customer must make written request to Seller for additional information if required for Buyer’s compliance with Medicare, or Medicaid or other healthcare programs requiring special disclosures.
TAXES: All taxes applicable to the sale of Products are payable by Buyer unless other payment terms are set out on the Agreement and may at Seller’s election be made a condition of shipment. If Buyer claims a tax exemption it must provide Seller a tax exemption certificate or other appropriate evidence of qualification for tax exemption.
SHIPMENTS; ACCEPTANCE OF PRODUCTS: Prices quoted, unless otherwise stated on the face of the Agreement, include the cost of shipping to Buyer’s designated point of delivery. Unless otherwise stated on the face of the Agreement, the means and method of shipment will be in Seller’s discretion, including the decision to make partial shipments. Risk of loss and damage to Products passes to Buyer upon acceptance of the Products as provided below. If Seller makes partial shipments, Seller may invoice each shipment separately. All Products must be inspected upon receipt and claims for transit damage (concealed or external) must be filed with Seller in writing within two business days of delivery of the Products to Buyer’s point of delivery. If a written claim of damage or Product nonconformity is not received by Seller within the two-business day period, acceptance of the Products by Buyer in good condition will be deemed complete. Buyer must accept delivery of all conforming Products subject to the Agreement within ninety (90) days of Seller’s acceptance of the Agreement, unless Buyer and Seller agree to a different delivery plan in an addendum initialed by both parties and attached to the Agreement.
PERFORMANCE: Seller’s quoted lead-time is an estimate only, based on shop load and material lead-time at the time of quotation, and is not guaranteed. Seller will make reasonable efforts to make shipments as scheduled and may make partial shipments. Seller will not be liable to Buyer for any loss or delay attributable to acts of God or the public enemy, fires, floods, unusually severe weather, delays caused by governments (including government priorities, preferences or allocations), delays of suppliers in furnishing materials and services, work stoppage or labor slowdowns or other actions, and any other causes beyond Seller’s control.
INSTALLATION: Buyer will be responsible for proper installation of the Products in compliance with instructions provided by Seller and the Product manufacturer unless Seller agrees to install the Products in an Installation Addendum attached to the Agreement and initialed by the parties. Buyer will be responsible for ensuring that any equipment and accessories not supplied by Seller that are used with Products are properly installed to interface or operate with the Products. Seller will not be liable to Buyer or any third person for personal injury or property damage arising from the use of third party equipment and accessories not supplied by Seller.
All Products will conform to Seller’s currently published specifications. The metal frame and will be free from defects in materials and workmanship for lifetime of the Products to Buyer. Gas spring and plastic components of the Products will be free from defects in materials and workmanship for ten years from delivery to Buyer. Seller’s responsibility with respect to the steel and plastic components will be limited, at Seller’s election, to repairing or replacing any defective components. Labor required for repair or replacement of steel and plastic components will be charged at Seller’s regular labor rates. Seller’s responsibility with respect to gas spring components will be replacement of the defective gas spring and a $25 credit toward labor charges. Seller does not separately warrant the mattress or mattress cover but will pass the manufacturer’s warranty to the Buyer and will assist Buyer in making warranty claims with the manufacturer. Seller reserves the right to use remanufactured or used components that meet new component specifications and are warranted the same as new components. Warranty rights will not cover accidents or normal wear and tear and will not apply if the Product is not paid for and properly installed as provided in the Product’s installation instructions, or if the Product is improperly operated or maintained, or if the Product has been modified or repaired by unauthorized persons. Seller will determine in its sole discretion if the Product is defective and covered by this limited warranty. Written notice of Product defect must be received by Seller within the warranty period. Buyer must pay packing, crating and transportation costs to and from the factory.
THE FOREGOING LIMITED WARRANTY AND A WARRANTY OF TITLE ARE THE ONLY WARRANTIES MADE BY SELLER WITH RESPECT TO THE PRODUCTS AND ARE MADE IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES. SELLER HEREBY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL STATUTORY AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SELLER ALSO DISCLAIMS ALL WARRANTIES REGARDING ANY ANCILLARY SERVICES PROVIDED TO BUYER.
LIMITATION OF DAMAGES: IN NO EVENT WILL SELLER BE LIABLE, IN CONTRACT, TORT, STRICT LIABILITY, LAWS RELATING TO THE PROTECTION OF THE ENVIRONMENT, OR UNDER ANY OTHER LEGAL THEORY, FOR INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DELAYS REGARDLESS OF WHETHER SELLER WAS INFORMED ABOUT THE POSSIBILITY OF SUCH DAMAGES, AND IN NO EVENT WILL SELLER’S LIABILITY EXCEED AN AMOUNT EQUAL TO THE SALES PRICE OF THE PRODUCCT THAT IS THE SUBJECT OF ANY CLAIM. NO EMPLOYEE OR AGENT OF SELLER IS AUTHORIZED TO CHANGE SELLER’S LIMITED WARRANTY OR TO GRANT ANY OTHER WARRANTY OR CHANGE THIS LIMITATION OF DAMAGES.
SECURITY INTEREST, DEFAULT AND INSURANCE: Buyer grants Seller a security interest in the Products until Seller has received full payment for the Products, including taxes. Buyer agrees to sign and deliver to Seller any additional documents required by Seller to perfect and protect its security interest in the Products. If Buyer defaults or Seller deems its security interest in the Products insecure, the full unpaid balance of the purchase price for the Products will be immediately due and payable at the option of Seller and upon notice to the Buyer, Seller may take possession of the Products wherever located without court order and can resell or retain the Products for Buyer’s account according to the laws or the state where Products are located. The Products will not be considered fixtures if attached to real property. Buyer assumes all risk of loss to the Products upon delivery and acceptance and will provide adequate casualty insurance therefore at all times until the full purchase price for the Products has been paid in full. Seller reserves the right to request proof of such insurance at any time prior to full payment for the Products, along with a statement from the insurer providing that no cancellations or changes to the policy will not be made without ten (10) days’ prior written notice to Seller.
SPECIFICATIONS. All Product specifications and drawings and all technical and other information provided to Buyer about the Products will remain the exclusive property of Seller and Buyer will return all copies of such information to Seller at any time at Seller’s request. Buyer will not use or disclose such information for the manufacture or remanufacture of any products. Seller reserves the right to amend its specifications for the Products at any time without notice.
CANCELLATION: Orders accepted by Seller may not be modified or canceled, except with Seller’s written consent and provided that Buyer pays any cancellation charge. The cancellation charge must protect Seller against all costs and losses incurred by cancellation of the Purchase Order. Seller reserves the right to cancel any sale hereunder without liability to Buyer (except for refund of monies already paid for Products that have not been delivered pursuant hereto), if the manufacture or sale of the goods is or becomes technically or economically impractical, including, without limitation, any case where Buyer requests substantial delays in deliveries of a multi-unit purchase of Products.
RETURNED PRODUCTS: No Product may be returned without prior written approval of Seller and issuance of a Return Goods Authorization (RGA) number. The authorized RGA number must appear on all forms accompanying all returns. Products that have not been authorized for return, or that do not bear the RGA number, may be refused at Seller’s discretion. If replacement is requested by the Buyer, the replacement part will be invoiced to the Buyer. Credit for the original parts will be issued against the original invoice based on the condition of the returned goods.
GOVERNING LAW: The Agreement will be governed exclusively by the laws of the State of Kansas, excluding its rules pertaining to the conflicts of laws. Buyer will indemnify and hold Seller harmless from any damages or liability incurred by Buyer by reason of a violation of any applicable laws by the Buyer or by reason of the Buyer’s obligations under such laws.
ARBITRATION: Any controversy or claim arising out of or relating to this Agreement or its performance or breach thereof, which cannot be resolved amicably, will be settled by arbitration. This agreement to submit to arbitrate will be specifically enforceable under the prevailing arbitration law. The award of the arbitrator will be final, and a judgment may be entered upon it by any court having jurisdiction. A party desiring to invoke this arbitration provision will serve written notice upon the other party of its intention to do so. Within thirty (30) days of the date of such notice, each party must serve upon the other the name of one impartial individual, knowledgeable in matters pertaining to the hospital furnishings industry to serve as an arbitrator.
WAIVER OF BREACH: Seller reserves the right to waive any breach of these Seller’s Terms & Conditions of Sale by Buyer. Seller’s failure to assert any right is not a waiver of that right or any other right at a future time.
MODIFICATIONS: Waivers, alterations, or modifications of the Agreement will be binding on Seller only when agreed upon in writing by a duly authorized officer of Seller.
NOTICES: All notices required to be given under this Agreement must be given in writing and will be effective when a record has been actually delivered, three days after it is deposited in the United States mail, first class, postage prepaid, addressed to the party to whom the notice is to be given at the address shown upon the Purchase Order, received by Fax, or received through the internet verified with a delivery receipt. Any party may change its address for notices under this agreement by giving formal written notice to the other party, specifying that the purpose of the notice is to change the party’s address.