12525 Stowe Drive

San Diego, CA, US.
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CAPITAL EQUIPMENT 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 inAs Is, Where Is Condition. SELLER makes no warranty whatsoever regarding the Equipment. SELLER DISCLAIMS ANY AND ALL WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF FREEDOM FROM PATENT INFRINGEMENT, OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, OR OTHER SIMILAR OR DIFFERENT EXPRESS OR IMPLIED WARRANTIES. De-installation, shipping, re-installation, and any other expenses associated with the purchase and removal of this Equipment is not included in this purchase agreement.  

REMOVALBUYER is financially responsible for all 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 de-installation, transport and reinstallation and will insure against any such loss. It is BUYER’s responsibility to ensure that the equipment is removed in a professional and responsible manner.  Any and all damages to the facility on the part of the BUYER during removal are the financial responsibility of the BUYER.

INSURANCE: BUYER shall provide a copy of its insurance certificate in the amount of no less than $1,000,000.00 liability coverage and upon request, agrees to include SELLER and/or facility housing the equipment on its certificate.

INSPECTION PRIOR TO SHIPMENTIt is recommended that BUYER inspect the Equipment in a timely and technically proficient manner, prior to approval of the Equipment. BUYER may inspect the Equipment before the inspection deadline date contained in the Quotation. Travel and inspection expenses are the responsibility of the BUYER.  The inspection of the Equipment by the BUYER is strictly voluntary, and BUYER may elect not to inspect the Equipment. In the event BUYER elects not to inspect the Equipment, copies of available information such as service records and photos will be provided to the BUYER upon written request. If BUYER elects to inspect the Equipment, then BUYER must inform Seller of BUYER’s final decision to purchase within 48 hours of the inspection (“inspection-reply deadline”).  Failure to notify the Seller of a decision within 48 hours of the inspection-reply deadline will qualify as an acceptance of the Equipment under the terms and conditions of this agreement, and the deposits will become non-refundable down payments.

CANCELLATION AFTER INSPECTIONIf after the inspection, and prior to the inspection-reply deadline, BUYER elects to reject the Equipment and cancel the purchase, then all deposits from the BUYER will be refunded within ten days. After the inspection-reply deadline, neither party may cancel the purchase or sale without the written agreement of both parties.

TITLE: Upon receipt of payment in full, title shall pass to BUYER.  SELLER certifies that the Equipment is free and clear of any encumbrances.  Title will remain with SELLER or the agent, facility/owner, or vendor until full payment has been made.

EQUIPMENT USE PROVISION: BUYER represents and warrants that the Equipment being sold under this agreement will be used solely and exclusively for medical purposes.  Under no circumstances will Equipment be used for non-medical purposes, including, but not limited to, industrial, military, government, or scientific research.  Furthermore, BUYER agrees that if the Equipment is re-sold, that BUYER/Customer will perform due diligence and take reasonable measures to ensure that the Equipment continues its use in the medical field, and that at its end-of-life, it be disposed in accordance with local, state, and federal law.

TAXES:  All sales and use taxes are BUYER’s responsibility.  Unless the sale is executed in California, the invoices from SELLER do not include local, state and federal taxes, and such taxes are the BUYER’s responsibility to file.  Consequently, in addition to the prices specified herein, the amount of any present or future sales, use, or similar tax application to the installation of Equipment herein or to the use of such Equipment by the BUYER shall be paid by the BUYER or, in lieu thereof, the BUYER shall provide SELLER with a tax exemption certificate acceptable to the taxing authorities. The BUYER shall defend, indemnify and save the SELLER harmless from and against any sales, use or excise taxes of any kind or nature asserted by any jurisdiction for the Equipment and services that are the subject of this Agreement.

PRIOR SALE: Equipment shall be subject to prior sale and this Agreement shall in no way be binding upon SELLER until the required deposit and signed Purchase Agreement are received and accepted.  Acceptance is defined as signatures and delivery by both parties. In the event that SELLER has sold Equipment to another party prior to receiving BUYER’s deposit and signed agreement, or is unable to deliver Equipment to BUYER for any reason, SELLER’s maximum liability will be the deposit(s) BUYER has placed for the purchase.

NO LIENS: While BUYER is engaged in the de-installation and removal of the Equipment, it shall promptly pay all of its contractors, suppliers and workers for any work materials or services which may be supplied or performed at any time in respect thereof, and BUYER shall do all things necessary to ensure that no lien attaches to any property of the SELLER, or any subsidiary or affiliate of the SELLER or of the facility housing Equipment, and if any lien arises, or is filed or registered, BUYER shall discharge it or cause it to be discharged forthwith, at BUYER’s sole expense.

PRICEThe price contained in the Equipment Quotation is valid for the amount of time indicated in this agreement.

PAYMENT: The BUYER shall pay the price at the times and in the amounts set forth in the Equipment Quotation in full. If part of an order is shipped, the BUYER shall pay the full price for the items shipped. Overdue invoices will bear interest at the rate of 18% per year. The BUYER will reimburse the SELLER for all costs of collection, including but not limited to attorney’s fees. The BUYER will also pay and hold the SELLER harmless from all sales, use, excise and other similar taxes. Following the initial deposit, in the event that BUYER does not meet payment deadline, all claim and interest in Equipment reverts back to SELLER and BUYER may be required to forfeit all or a portion deposit funds paid. If the BUYER does not pay an invoice for the Equipment or for any other item sold or service rendered by SELLER, or if at any time the BUYER indicates that it is unable or unwilling to pay an invoice, SELLER may suspend performance and refuse to ship the Equipment to the BUYER. The time for payment is of the essence of this contract.

NON-CIRCUMVENTION: BUYER’s communications with the facility/owner are to be handled exclusively through SELLER unless otherwise directed by SELLER in writing.  BUYER will limit any discussions during inspection or in the course of due diligence to technical and logistical issues, and further expressly agrees to not discuss financial issues with the facility/owner. It is also agreed that any and all details specific to the Equipment, including but not limited to location, ownership, price, condition, etc. are confidential to SELLER, and that BUYER will not violate this confidentiality in any manner whatsoever.  In the event BUYER declines the Equipment for any reason, BUYER agrees not to circumvent SELLER in the purchase of Equipment either directly or through any other agent, broker, affiliate, organization or entity. Should BUYER reject Equipment, BUYER and/or BUYER’s agent(s) agree NOT to communicate with the facility/owner for any reason for a period 18 months from the inspection date. This clause will survive this agreement if it is canceled or voided. Should BUYER violate this clause and purchase Equipment independently of SELLER, then SELLER shall be entitled to 50% of the sales price of the Equipment.

STATE & FEDERAL COMPLIANCE: The BUYER is solely responsible for compliance with all state and federal requirements for shielding, licensing, installation and registration, as applicable.

EXPORT COMPLIANCE: BUYER acknowledges and agrees that the Equipment is subject to the export controls laws, regulations and executive orders of the United States and the import laws of the country in which the BUYER is located. BUYER agrees to comply with all international and national laws, regulations and executive orders that apply to the Equipment including, without limitation, the U.S. Export Administration Act, the Arms Export Control Act, and the International Emergency Economic Powers Act. BUYER agrees that it will use its best efforts to ensure that the Equipment is not (a) sold, transferred or delivered to any U.S. or E.U. sanctioned or embargoed country (including but not limited to Cuba, Iran, Sudan and Syria) unless authorized by a U.S. export license or regulation, (b) sold, transferred or delivered to any person or entity listed in the U.S. Department of Commerce Denied Persons List or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals List, the U.S. Department of State’s Debarred Parties listing, or any E.U. or local country listing of sanctioned persons or entities, (c) sold, transferred of delivered to any nuclear weapons, nuclear power, nuclear research, chemical/biological weapons, or missile/rocket technology end-user or (d) sold, transferred or delivered in violation of any other applicable import or export laws, regulations, license or government orders. This Quotation and any resulting agreement are contingent on the issuance of any applicable export license required by the U.S. and any other applicable government.  The BUYER will defend, indemnify and hold SELLER harmless from and against all claims, demands, suits, actions and causes of action, fines and penalties arising from or related to any breach of this section. This section shall survive termination of this Agreement.

EX-WORKS SALES: Where the Equipment is sold with a shipping term of ExW, Inco Terms 2010 are modified to the extent this section conflicts.  Risk of Loss passes to BUYER upon receiving notice that the Equipment is available for de-installation/removal from its current location.  BUYER is responsible for any and all de-installation, removal, transportation, crating, shipping and re-installation.  BUYER shall coordinate only with SELLER with respect to de-installation of the Equipment, including without limitation, the date and time of de-installation, and shipping of the Equipment. BUYER is fully responsible for its acts or omissions at the Equipment’s current facility and will cause such de-installation to be performed in a timely and workmanlike manner, subject to the instructions and rules of the facility at which the de-installation is performed. BUYER shall leave any facility it enters broom clean. BUYER shall maintain liability insurance (with coverage no less than $1 million dollars Each Occurrence and $2 million General Aggregate) which covers all of BUYER’s activities in ExW sales, including but not limited to the Equipment’s facility, and injuries to persons or property.  The policy shall extend coverage to BUYER’s agents or subcontractors and name SELLER as an additional insured.  Prior to de-installation, BUYER shall provide SELLER with a certificate of insurance as evidence of same.  If BUYER fails to provide proof of such insurance, SELLER may request BUYER pay SELLER a premium, to be determined in SELLER’s sole discretion, for SELLER’s increased liability exposure.  BUYER will indemnify, defend, subrogate its insurance and hold SELLER harmless from and against any and all liabilities, judgments, settlements, losses, damages, penalties, obligations, insurance claims and expenses, including attorneys’ fees, incurred by SELLER, arising out of any loss, deinstall/removal/pick-up, damage and injury that occurs during a de-installation performed by BUYER or its agent.

LICENSES, FEES, PERMITS: BUYER shall, at its own expense, obtain all necessary licenses, fees, permits, etc., as required by local, state or federal law, for the purchase, site preparation, installation and operation of the EQUIPMENT. BUYER shall be bound by its obligations of payment under this Agreement regardless of its compliance with the foregoing requirements.

DELAYSAll removal and installation dates are estimates based upon conditions at the time of purchase. SELLER shall not bear any liability for any delay in shipment, delivery or de-installation for any reason whatsoever, including but not limited to fire, embargo, strike, differences with employees, accidents, acts of God, failure or inability to secure parts or materials from usual sources of supply, or any other circumstances, either of the foregoing nature or any other nature. The BUYER shall hold SELLER harmless for any additional costs and expenses arising from changes or delays to the original removal date caused by the BUYER.  In the event the Equipment becomes unavailable to SELLER, then SELLER will provide a full refund of all deposits paid. SELLER shall have no liability in the event that this should occur. Time is of the of essence in performance of this Agreement.

DELIVERY:  BUYER and SELLER may agree on a “Delivery Target” date.  Otherwise, SELLER will simply notify BUYER when a system is available (either for SELLER to deliver or BUYER to pick up – depending on the shipping terms). Delivery Target and availability are dependent on numerous factors, some of which are outside of SELLER’s control. SELLER will use its commercially reasonable efforts to meet quoted delivery dates but will not be responsible for any delays in performance, damages, or losses due to (but not limited to): fires, floods, earthquakes or other acts of God, accidents, riots, wars, acts of terrorism, operation of law, government regulations or requirements, strikes, labor difficulties, shortages of fuel, power, materials or supplies, unavailability of transportation, system availability delays, or other acts or circumstances that are not within reasonable control of SELLER. BUYER agrees that SELLER may extend the time to deliver for a reasonable amount in the above circumstances. The shipping terms from Inco Terms 2010 apply to this transaction.  Once BUYER takes delivery of the Equipment, BUYER agrees to indemnify and hold SELLER harmless for any change in the Equipment’s condition.  Unless SELLER has agreed otherwise in writing, SELLER shall have no responsibility whatsoever for the performance of, or the cost of, the installation of the Equipment.

INSTALLATIONIf SELLER has agreed to perform installation services, the terms of this section shall apply. BUYER agrees that the installation site will be ready for equipment installation no later than the “Site Readiness” date defined on the Agreement.  BUYER is solely responsible for making the installation location suitable for the Equipment’s installation, including but not limited to room access/ingress, size, configuration, support, power, HVAC, shielding, environmental, and manufacturer requirements.  BUYER agrees to reimburse SELLER for all costs associated with a site’s unpreparedness including but not limited to: (i) a minimum of $1,500 per day that SELLER’s engineer is deployed but unable to work to complete the installation; (ii) Travel and time costs associated with having to redeploy SELLER’s engineer; (iii) Any additional transportation and storage charges for the Equipment; and (iv) Any additional charges for requested return trips.  BUYER agrees to provide a qualified representative to certify the condition of installation meets the criteria of the Sales Agreement.  If BUYER fails to provide a qualified representative or fails to provide SELLER with written notice of a problem with 48 hours, the BUYER agrees to conclusively waive any claims arising from the Equipment’s installation.  Any warranty terms shall go into effect on the date the installation is completed.  However, if installation is delayed for any reason other than SELLER’s delay and the Equipment is located at the BUYER’s site, any warranty or service coverage shall go into effect on the day of delivery. Unless otherwise agreed, BUYER is responsible for Network connections to the equipment and BUYER’s performance of this requirement will be determined in SELLER’s sole discretion. Any requirement of SELLER to provide network connectivity in this Agreement is subject to BUYER providing a compatible network and a qualified person with the ability to configure the facility network (including, but not limited to routers, switches, and firewalls) to work in conjunction with the installing engineer. Network connectivity will be determined in SELLER’s sole discretion.  SELLER may demonstrate connectivity by transmitting images over a test network SELLER provides. Subsequent service or testing for network issues may result in charges to BUYER.

INDEMNITY: BUYER hereby agrees to defend and hold harmless SELLER and its respective subsidiaries, affiliates, directors, officers, employees, agents, representatives, and their respective successors and assigns from and against any and all loss, liability, damages, claims, causes of action, costs, and expenses, including but not limited to attorney’s fees and any other types of liability, whether accrued, absolute, contingent or otherwise, arising out of or related to the purchase, removal, ownership or use of any of the Equipment at any time.  Following the removal, the entire risk of the condition, quality, and performance of Equipment shall rest solely with BUYER. BUYER alone is responsible for all costs required to remedy all defects and/or to comply with all requirements imposed by law or regulation relating in any way to personal safety prior to use or operation of Equipment.

SOFTWAREBUYER agrees to adhere to the software licensing policies of the manufacturer or licensor of software being sold with the Equipment.  All software licensing and registration fees are the responsibility of the BUYER.

MARKETING: SELLER reserves the right to utilize logo’s associated with partners, customers & vendors who have conducted business with SELLER on all marketing, social media, website and platforms at SELLER’s discretion.  SELLER also reserves the right to publish testimonials from partners, customers & vendors on all marketing, social media, website and platforms at SELLER’s discretion.  At no time shall any revenue generated from these marketing efforts, testimonials, logos, cross-branding, etc. be due back to partners, customers & vendors.  SELLER shall not need to receive a release from partners, customers and vendors in order to utilize testimonials, logos, etc. however may choose to do so at their own discretion.

INTEGRATION/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 representations and agreements. No amendment or variation of this Agreement shall be valid unless mutually agreed upon in writing and signed by authorized officers of both SELLER and BUYER.

NON-WAIVER: No failure or delay by SELLER in exercising any right under this Agreement shall constitute a waiver of such right or of any other rights afforded the SELLER in this Agreement.

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 SELLER and BUYER 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 SELLER and BUYER.  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. 

ENTIRE AGREEMENT/AMENDMENTS: This Agreement constitutes the exclusive statement of the terms and conditions of the agreement between SELLER and BUYER and supersedes all prior and contemporaneous understandings or agreements with respect to the same subject matter. No prior proposals, statements, representations or course of dealing, whether written or oral, will be part of this Agreement. No party has been induced to enter into this Agreement by, nor is any party relying on, any representations or warranty outside those expressly set forth in this Agreement. These terms and conditions may be amended by SELLER from time to time, and without actual notice to BUYER, unless BUYER and SELL have a separate signed agreement.  Any such amended terms and conditions shall be effective upon posting. SELLER is advised to regularly review any applicable terms and conditions.

COUNTERPARTS AND FACSIMILE SIGNATURES: This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which counterparts taken together shall constitute one and the same Agreement.  For purposes of this Agreement, signatures sent via facsimile or scanned email copies 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 and delivered by both parties, and can be withdrawn at any time prior to signature and delivery by both parties. This agreement may be executed by an officer of SELLER only.

ASSIGNMENT: Neither party may assign its rights or duties under this Agreement without the prior written consent of the other party.  Notwithstanding the preceding sentence, SELLER may (i) engage subcontractors to perform work required under this Agreement; and (ii) may assign specific rights and duties under this Agreement to third parties upon giving written notice to BUYER.  This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assignees.

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.

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.

CONFIDENTIALITYTHE TERMS AND CONDITIONS OF THIS AGREEMENT ARE CONFIDENTIAL AND SHALL NOT BE DISCLOSED EXCEPT AS NECESSARY TO THE PERFORMANCE OF THIS AGREEMENT OR AS REQUIRED BY LAW.

HIPAA: Both parties agree to comply with the United States Department of Health and Human Services’ Health Insurance Portability and Accountability Act privacy rule which protects “all individually identifiable health information” held or transmitted by a covered entity or its business associate, in any form of media, whether electronic, paper or oral.

LIMITATION OF LIABILITY AND REMEDIESThe total liability of SELLER to the BUYER will not under any circumstances exceed the purchase price of the Equipment. SELLER shall not bear any liability for loss of revenue or income, downtime, additional expenses, other expense or consequential, incidental, liquidated, punitive, or contingent damages, including but not limited to damage for personal injury or property damage based on breach of contract, breach of warranty, negligence, gross negligence, strict liability, products liability or any other theory of law or equity. These limitations and exclusions apply regardless of whether liability is based on the negligence or gross negligence of the SELLER or others.

NO THIRD-PARTY BENEFICIARIESExcept as expressly stated in this Agreement, the SELLER and the BUYER are the only beneficiaries of the terms of this agreement.  

HEADINGSThe section headings contained in this Agreement are inserted for reference purposes only and shall not affect in any way the meaning, construction or interpretation of this Agreement.  Any reference to the masculine, feminine, or neuter gender shall be a reference to such other gender as is appropriate. References to the singular shall include the plural and vice versa.