SELLER TERMS AND CONDITIONS
GENERAL: These terms and conditions constitute an integral part of the Agreement between the parties to sell/purchase the Equipment and shall govern the rights and responsibilities of the parties. To the extent that any rights or responsibilities are addressed in the signed portion of this Agreement, those terms will supersede these online terms and conditions.
ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the parties, and supersedes any and all statements, descriptions of Equipment, course of dealing, or usage of trade previously existing between the parties with respect to such subject matter. Any acceptance of this Agreement is expressly limited to the terms of this Agreement. After the contract is formed, it may only be modified by written Change Order, in a form prescribed by DirectMed Parts & Service, LLC, which has been signed by the parties’ authorized representatives. Neither Seller nor Buyer hereto has entered into this agreement in reliance upon any representation, warranty, condition, or undertaking of any other party which is not set out in this Agreement.
AS IS, WHERE IS: All used Equipment is sold “As Is, Where Is Condition”, and SELLER disclaims any and all warranties expressed or implied, including but not limited to implied warranties of merchantability and/or fitness for a particular purpose.
INSPECTION & DEPOSIT:BUYER will submit a refundable deposit in order to hold Equipment for inspection. BUYER must approve or reject Equipment within five business days of inspection. If BUYER approves Equipment, BUYER’s deposit becomes a non-refundable down payment. If BUYER rejects Equipment, then SELLER shall refund all deposits paid to the BUYER within five business days following the rejection of Equipment. If no response is received within five business days Equipment will be presumed to have been rejected. BUYER shall have the right to cancel this agreement prior to the inspection deadline date and receive a refund of deposit(s) paid.
CONDITION OF EQUIPMENT: Equipment will be maintained in the condition that SELLER represented it at the time of the execution of this Agreement, and in the condition BUYER inspected it. In the event that it is not in such condition, BUYER will have the following options: (1) BUYER may reject the Equipment and SELLER shall immediately refund to BUYER 100% of any moneys paid by BUYER within ten days, (2) The purchase price of the Equipment will be reduced by the amount equal to the cost of all repairs and work necessary to restore the Equipment to the condition and specifications outlined in this agreement or observed at the inspection.
COMPUTERS & SOFTWARE: SELLER understands that the Equipment requires functional computers and related software for operation. In the event SELLER elects to erase the data and/or software from the computer, SELLER agrees it will re-order and re-install the manufacturer’s software prior to the scheduled removal date.
TITLE: SELLER warrants that it is the lawful owner of this Equipment and that it is free of any and all encumbrances. Title will pass to BUYER or its designated agent upon receipt of payment in full. Title to the Equipment will then belong wholly and exclusively to BUYER or its designated agent/customer. Upon receipt of payment in full, and upon BUYER’s request, BUYER will be issued a Bill of Sale from SELLER. Title will remain with SELLER until full payment has been made.
TAXES: All sales and use taxes are BUYER’s responsibility. BUYER shall provide SELLER with a tax exemption certificate acceptable to the taxing authorities.
REMOVAL COSTS: BUYER is financially responsible for the costs incurred in the removal of the Equipment, including but not limited to providing labor, rigging, packing, shipping, and all bonding and insurance. BUYER is responsible for any damage to Equipment during the de-installation process. SELLER is responsible for providing a clear path for the removal of Equipment, and for any extraordinary costs required for removal including any construction costs, floor shoring, demolition, reconstruction, elevator-involved removals, crane rentals or delays in preparing facility for removal.
REMOVAL LIABILITY: BUYER shall be liable for any injury, including property damage and personal injury, caused by the gross negligent acts of BUYER, during de-installation and removal of Equipment.
DATE MODIFICATION: In the event that the Equipment removal is delayed by SELLER for more than 30 days from the date defined in this agreement, BUYER shall have the option of either canceling this agreement and receiving a full refund, or re-negotiating the purchase price. Time is of the essence in performance of this Agreement.
EXPENSES:Except as otherwise specifically provided herein, each party to this Agreement shall pay its own expenses (including the fees and expenses of their representatives, accountants and counsel) incidental to the preparation and carrying out of this Agreement, and the consummation of the transaction set forth herein.
CANCELLATION PENALTY: SELLER understands that BUYER is in the business of remarketing Equipment. In the event that BUYER’s client cancels its contract or commitment to buy from BUYER, BUYER may terminate this agreement, so long as it is at least 10 days prior to removal deadline date with no liability. The maximum liability to the BUYER for any cancellation beyond 10 days shall be the deposit(s) paid.
SCOPE OF AGREEMENT: The signing of and the execution of this Agreement shall constitute the entire agreement between the parties and supersedes any and all prior agreements. No amendment or variation of this Agreement shall be valid unless mutually agreed upon in writing and signed by authorized officers of both the SELLER and the BUYER. This Agreement shall be binding upon and inure to the benefit of the parties, their successors and assigns.
WAIVER: Failure by a party to assert its rights upon any default of this Agreement shall not be deemed a waiver of such rights, nor shall any waiver be implied from the making of any payment hereunder.
GOVERNING LAW AND VENUE: This Agreement shall be governed, interpreted and construed in accordance with the laws of California and the laws of the United States of America. Any suit brought hereon shall be brought in the state or federal courts sitting in San Diego County, California, and the parties hereto hereby waiving any claim or defense that such forum is not convenient or proper. The provisions of the United Nations Convention on Contracts for the International Sale of Goods, and any conflict-of-laws provisions that would require application of another choice of law, are excluded.
DISPUTE RESOLUTION: If any dispute relating to this Agreement arises between BUYER and SELLER a party may send written notice to the other party within thirty (30) days of discovering the dispute, outlining the nature and extent of the problem. Said statement will contain all written documentation and supporting documents germane to the dispute. Representatives of the parties will then arrange to meet to discuss the dispute. If the meeting does not occur within thirty (30) days of the receipt of the initial notice, or if the meeting between the parties does not sufficiently resolve the dispute, a party may request a meeting between the executive officers of BUYER and SELLER. These officers shall have thirty (30) days after the receipt of this second notice and request to resolve the dispute, after which time, or if no resolution of the dispute is reached within sixty (60) days of receipt of the initial notice, a party may pursue its remedies at law. The parties may extend these time periods by mutual written assent in furtherance of obtaining a mutually acceptable resolution, and in order to permit the parties’ officers to meet to obtain such resolution. If a resolution of the dispute is obtained through any means described herein, the parties shall reduce such resolution to writing and/or amend the Agreement to include the resolution. Regardless, before a party may commence any litigation against the other party, a separate thirty (30) days written notice of the dispute and intent to file a lawsuit shall be provided to the other party.
NOTICE: Unless otherwise provided by applicable law, any notice required to be given under these terms
and conditions shall be given in writing and shall be effective when actually delivered. For notice purposes Seller agrees to keep Buyer informed at all times of Seller’s current address. Any party may change its address for notices under this Agreement by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party’s address. Unless otherwise provided or required by law, if there is more than one Seller, any notice given by Buyer to Seller is deemed to be
notice given to all Sellers.
COUNTERPARTS AND EMAIL SIGNATURES: This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same Agreement. For purposes of this Agreement, signatures sent via scanned email copies or facsimile shall be deemed originals and shall have the same force and effect as if they were originals. This agreement will not be binding until signed by both parties, and can be withdrawn at any time prior to its signature by BUYER.
SEVERABILITY:If a court of competent jurisdiction finds any provision of this Agreement to be illegal, invalid, or unenforceable as to any circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other circumstance. If feasible, the offending provision shall
be considered modified so that it becomes legal, valid and enforceable. If the offending provision cannot be so modified, it shall be considered deleted from these terms and conditions. Unless otherwise required by law, the illegality, invalidity, or unenforceability of any provision of this Agreement shall not affect the legality, validity or enforceability of any other provision of this Agreement.
FORCE MAJEURE: Neither party shall be liable in damages and either party shall have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to Acts of God, government
restrictions (including the denial or cancellation of any licenses), wars, adverse weather conditions, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected.
CONFIDENTIALITY: The terms and condition of this Agreement are confidential and shall not be disclosed except as necessary to the performance of this Agreement or as required by law. SELLER’s communications with BUYER’s agents and customers are to be handled exclusively through BUYER unless otherwise directed by BUYER in writing. SELLER agrees to limit any discussion during inspection or in the course of due diligence to technical or logistical issues, and further expressly agrees to NOT discuss any financial issues with BUYER’s prospective customers.