Terms and Conditions of Sale | Worldwide Life Sciences

TERMS AND CONDITIONS OF SALE

GENERAL

WorldWide Medical Products, Inc., d.b.a.WorldWide Life Sciences Division (“Seller”) offers for sale to the buyer (“Buyer”) the products listed (the “Products”) on the express condition that buyer agrees to accept and be bound by the terms and conditions set forth in this agreement (“Agreement”). These terms and conditions take precedence over Buyer’s supplemental or conflicting terms and conditions to which notice of rejection is hereby given. Neither Seller’s commencement of performance or delivery shall be deemed or construed as acceptance of Buyer’s supplemental or conflicting terms and conditions. No waiver, consent, modification, amendment or change of the terms contained herein shall be binding unless in writing and signed by Seller and Buyer. Seller’s failure to object to conflicting or additional terms will not change or add to the terms of this Agreement. Buyer’s acceptance of the Products from Seller shall be deemed to constitute acceptance of the terms and conditions contained herein.

ORDERS

All orders placed by Buyer are subject to acceptance by Seller. Orders may not be cancelled or rescheduled without Seller’s written consent. All orders must identify the products, unit quantities, part numbers, applicable prices and requested delivery dates of the Products being purchased. Seller may in its sole discretion designate certain Products as non-cancelable and non-returnable in the Seller’s Order Acknowledgement, which shall prevail and supersede any inconsistent terms and conditions contained herein or elsewhere.

PRICE

All prices published by Seller or quoted by Seller’s representative may be changed at any time without notice. All prices quoted by Seller or Seller’s representatives are valid for thirty (30) days, unless otherwise stated in writing. All prices for the Products will be as specified by Seller or, if no price has been specified or quoted, will be Seller’s price in effect at the time of shipment. All prices are subject to adjustment on account of specifications, quantities, raw materials, cost of production, shipment arrangements or other terms or conditions which are not part of Seller’s original price quotation.

TAXES

All prices quoted are exclusive of transportation and insurance costs, duties and all taxes including federal, state and local sales, excise and value added, goods and services taxes and any other taxes. All taxes and duties must be paid by Buyer. If Buyer claims any exemption, Buyer must provide a valid, signed certificate or letter of exemption for each respective jurisdiction. Buyer agrees to indemnify and hold Seller harmless for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest.

PAYMENTS

Buyer is responsible to pay the invoice according to the agreed terms. If no payment terms are stated, payment shall be net thirty (30) days from the date of the invoice. If Buyer fails to pay any amounts when due, Seller reserves its right to charge fair and reasonable interest with all costs and expenses including without limitation reasonable attorneys’ fees and disbursements and court costs incurred by Seller in the collection of such overdue amounts or otherwise enforcing Seller’s rights hereunder. Seller at its discretion may require full or partial payment in advance or other security that is satisfactory to Seller. Seller shall cooperate with Buyer to monitor invoicing accuracy and will conduct appropriate internal reviews upon request. Reviews shall be limited to once per year and shall cover the prior twelve month period. If Buyer engages external consultants to review invoice accuracy, Seller reserves the right to charge a reasonable fee for support provided to such party.

ACCEPTABLE PAYMENT METHODS

The Seller prefers to receive payment via ACH or other electronic interface methods that directly exchange funds between the Buyer's and Seller's bank accounts. The Seller also accepts checks mailed to one of its lockbox remittance locations. Although the Seller does accept credit card payments at the time of purchase, it does not accept credit card payments after the point of sale.

DELIVERY/TITLE/CANCELLATION/CHANGES

The Products will be shipped to the destination specified by Buyer, F.O.B. Seller’s shipping point. Title and risk of loss pass to the Buyer upon delivery of the Product to the carrier. Seller’s delivery dates are estimates only and Seller is not liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of the Seller, nor shall the carrier be deemed an agent of the Seller. A delayed delivery of any part of an Order does not entitle Buyer to cancel other deliveries. Seller reserves the right to terminate the order or to reschedule the shipment within a reasonable period of time and Buyer will not be entitled to refuse delivery or otherwise be relieved of any obligations as the result of such delay. Products as to which delivery is delayed due to any cause within Buyer’s control may be placed in storage by Seller at Buyer’s risk and expense. Orders in process may be cancelled only with Seller’s written consent and upon payment of Seller’s cancellation charges. Orders in process may not be changed except with Seller’s written consent and upon agreement by the parties as to an appropriate adjustment in the purchase price. Credit will not be allowed for Products returned without the prior written consent of Seller.

RETURNS/REFUNDS/EXCHANGES

Products may be returned to Seller within 30 days for replacement or adjustment.

To return an item:

contact Seller within 30 days of the ship date of the item(s) by calling our toll-free number at 1-866-889-WWMP or by emailing www.WWMPONLINE.COM;
Seller will issue a Return Material Authorization Number ("RMA") and provide Buyer with specific instructions where to mail return items(s) with the RMA;
Product must be returned within 14 days after the RMA is provided by Seller with the RMA on the return shipping documents and the reason for return; and
returns made without the RMA will be returned to Buyer, freight collect.

Seller reserves the right to reverse any credit issued to Buyer:

for any Product not returned after authorization and requested by Seller; or
upon return, such Product is determined by Seller not to be defective.

Seller will grant full credit for:

Products not supplied in accordance with Buyer's orders; or
Products which are defective at the time of receipt by the Buyer.

Seller will grant partial credit for Products ordered in error, with the exceptions noted below. Product returns for Products ordered in error are subject to a 20% restocking charge plus any applicable charges for necessary inspection, reworking or refurbishing, or for items not normally cataloged by Seller. Hazardous materials authorized for return must be packed, labeled and shipped in accordance with DOT regulations governing transportation of hazardous materials and any other applicable requirements.

Seller will not grant credit for:

Products which have been discontinued;
Products which are personalized or customized;
Products supplied to Buyer as an accommodation, including, without limitation, third party purchases;
Products not purchased from Seller;
Refrigerated or temperature controlled Products;
Products which are outdated, shelf-worn, used or defaced and, therefore, unsuitable for return to stock and resale as new;
reagents, diagnostics, or chemicals which have been opened;
Products that have been shipped outside the United States; and
certain medical device products.

WARRANTY/DISCLAIMER

Seller warrants that the Products will operate or perform substantially in conformance with Seller's published specifications and be free from defects in material and workmanship, when subjected to normal, proper and intended usage by properly trained personnel, for the period of time set forth in the product documentation, published specifications or package inserts. If a period of time is not specified in Seller's product documentation, published specifications or package inserts, the warranty period shall be one (1) year from the date of shipment to Buyer for equipment and ninety (90) days for all other products (the "Warranty Period"). Seller agrees during the Warranty Period, to repair or replace, at Seller's option, defective Products so as to cause the same to operate in substantial conformance with said published specifications; provided that Buyer shall:

(a) promptly notify Seller in writing upon the discovery of any defect, which notice shall include the product model and serial number (if applicable) and details of the warranty claim; and

(b) after Seller's review, Seller will provide Buyer with service data and/or a RMA, which may include biohazard decontamination procedures and other product-specific handling instructions, then, if applicable, Buyer may return the defective Products to Seller with all costs prepaid by Buyer.

Replacement parts may be new or refurbished, at the election of Seller. All replaced parts shall become the property of Seller. Shipment to Buyer of repaired or replacement Products shall be made in accordance with the Delivery provisions of the Seller's Terms and Conditions of Sale. Consumables are expressly excluded from this warranty. If Seller elects to repair defective medical device instruments, Seller may, in its sole discretion, provide a replacement loaner instrument to Buyer as necessary for use while the instruments are being repaired.

Notwithstanding the foregoing, Products supplied by Seller that are obtained by Seller from an original manufacturer or third party supplier are not warranted by Seller, but Seller agrees to assign to Buyer any warranty rights in such Product that Seller may have from the original manufacturer or third party supplier, to the extent such assignment is allowed by such original manufacturer or third party supplier.

In no event shall Seller have any obligation to make repairs, replacements or corrections required, in whole or in part, as the result of:

normal wear and tear;
accident, disaster or event of force majeure;
misuse, fault or negligence of or by Buyer;
use of the Products in a manner for which they were not designed;
causes external to the Products such as, but not limited to, power failure or electrical power surges;
improper storage and handling of the Products; or
use of the Products in combination with equipment or software not supplied by Seller.

If Seller determines that Products for which Buyer has requested warranty services are not covered by the warranty, Buyer shall pay or reimburse Seller for all costs of investigating and responding to such request at Seller's then prevailing time and materials rates. If Seller provides repair services or replacement parts that are not covered by this warranty, Buyer shall pay Seller at Seller's then prevailing time and materials rates. ANY INSTALLATION, MAINTENANCE, REPAIR, SERVICE, RELOCATION OR ALTERATION TO OR OF, OR OTHER TAMPERING WITH, THE PRODUCTS PERFORMED BY ANY PERSON OR ENTITY OTHER THAN SELLER WITHOUT SELLER'S PRIOR WRITTEN APPROVAL, OR ANY USE OF REPLACEMENT PARTS NOT SUPPLIED BY SELLER, SHALL IMMEDIATELY VOID AND CANCEL ALL WARRANTIES WITH RESPECT TO THE AFFECTED PRODUCTS.

THE OBLIGATIONS CREATED BY THIS WARRANTY STATEMENT TO REPAIR OR REPLACE A DEFECTIVE PRODUCT SHALL BE THE SOLE REMEDY OF BUYER IN THE EVENT OF A DEFECTIVE PRODUCT. EXCEPT AS EXPRESSLY PROVIDED IN THIS WARRANTY STATEMENT, SELLER DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. SELLER DOES NOT WARRANT THAT THE PRODUCTS ARE ERROR-FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.

INDEMNIFICATION BY SELLER

Seller agrees to indemnify, defend and save Buyer, its officer, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's fees) ("Indemnified Items") for:

injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's premises under this Agreement; and
claims that a Product infringes any valid United States patent, copyright or trade secret.

Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either:

the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors;
by any third party;
use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing;
compliance with Buyer's designs, specifications or instructions;
use of the Product in an application or environment for which it was not designed; or
modifications of the Product by anyone other than Seller without Seller's prior written approval.

Buyer shall provide Seller prompt written notice of any third party claim covered by Seller's indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Buyer agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section.

Notwithstanding the above, Seller's infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense:

(a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product;

(b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or

(c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Buyer with respect thereto, based on a five (5) year amortization schedule.

THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN.

INDEMNIFICATION BY BUYER

Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with:

the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors;
use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing;
Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer;
use of a Product intended for research only in an unauthorized commercial use;
use of a Product in an application or environment for which it was not designed; or
modifications of a Product by anyone other than Seller without Seller's prior written approval.

SOFTWARE

With respect to any software products incorporated in or forming a part of the Products hereunder, Seller and Buyer intend and agree that such software products are being licensed and not sold, and that the words "purchase", "sell" or similar or derivative words are understood and agreed to mean "license", and that the word "Buyer" or similar or derivative words are understood and agreed to mean "licensee". Notwithstanding anything to the contrary contained herein, Seller or its licensor, as the case may be, retains all rights and interest in software products provided hereunder.

Seller hereby grants to Buyer a royalty-free, non-exclusive, nontransferable license, without power to sublicense, to use software provided hereunder solely for Buyer's own internal business purposes on the hardware products provided hereunder and to use the related documentation solely for Buyer's own internal business purposes. This license terminates when Buyer's lawful possession of the hardware products provided hereunder ceases, unless earlier terminated as provided herein. Buyer agrees to hold in confidence and not to sell, transfer, license, loan or otherwise make available in any form to third parties the software products and related documentation provided hereunder. Buyer may not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement the software products provided hereunder without Seller's prior written consent. Seller will be entitled to terminate this license if Buyer fails to comply with any term or condition herein. Buyer agrees, upon termination of this license, immediately to return to Seller all software products and related documentation provided hereunder and all copies and portions thereof.

Certain of the software products provided by Seller may be owned by one or more third parties and licensed to Seller. Accordingly, Seller and Buyer agree that such third parties retain ownership of and title to such software products. The warranty and indemnification provisions set forth herein shall not apply to software products owned by third parties and provided hereunder.

LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE LIABILITY OF SELLER UNDER THESE TERMS AND CONDITIONS (WHETHER BY REASON OF BREACH OF CONTRACT, TORT, INDEMNIFICATION, OR OTHERWISE, BUT EXCLUDING LIABILITY OF SELLER FOR BREACH OF WARRANTY (THE SOLE REMEDY FOR WHICH SHALL BE AS PROVIDED UNDER THE WARRANTY SECTION ABOVE)) SHALL NOT EXCEED AN AMOUNT EQUAL TO THE LESSER OF (A) THE TOTAL PURCHASE PRICE THERETOFORE PAID BY BUYER TO SELLER WITH RESPECT TO THE PRODUCT(S) GIVING RISE TO SUCH LIABILITY OR (B) ONE MILLION DOLLARS ($1,000,000). NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE OF FACILITIES OR EQUIPMENT, LOSS OF REVENUE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF GOODWILL), REGARDLESS OF WHETHER SELLER (a) HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR (b) IS NEGLIGENT.

EXPORT RESTRICTIONS

Buyer acknowledges that each Product and any related software and technology, including technical information supplied by Seller or contained in documents (collectively "Items"), is subject to export controls of the U.S. government. The export controls may include, but are not limited to, those of the Export Administration Regulations of the U.S. Department of Commerce (the "EAR"), which may restrict or require licenses for the export of Items from the United States and their re-export from other countries. Buyer shall comply with the EAR and all other applicable laws, regulations, laws, treaties, and agreements relating to the export, re-export, and import of any Item. Buyer shall not, without first obtaining the required license to do so from the appropriate U.S. government agency:

export or re-export any Item; or
export, re-export, distribute or supply any Item to any restricted or embargoed country or to a person or entity whose privilege to participate in exports has been denied or restricted by the U.S. government.

Buyer shall cooperate fully with Seller in any official or unofficial audit or inspection related to applicable export or import control laws or regulations, and shall indemnify and hold Seller harmless from, or in connection with, any violation of this Section by Buyer or its employees, consultants, agents, or customers.

PROMOTION CODE TERMS AND CONDITIONS

Discounts are valid only on the purchase of list-price items. Discounts are valid for one-time use only. All promotions and discounts are on Worldwide Life Sciences Divisions Products only. Discounts are valid in the U.S. only. To redeem a discount, enter the promo code on the purchase order. Free shipping offers apply to standard shipping only. Not valid with any other promotion. Terms are subject to change.

PROMOTIONAL TERMS FOR HEALTHCARE PROVIDERS:

Many promotions are not available to our current or potential healthcare customers. Healthcare customers include any healthcare practitioner, other healthcare provider or any individual or organization authorized to prescribe, dispense, purchase or influence the acquisition or use of medical devices or supplies for clinical use. By participating in a promotion, Seller reserves the right to determine Buyer’s status in the event of a dispute.

If Buyer is a recipient of Medicare/Medicaid funds, Buyer acknowledges that it has been informed of and agrees to fully and accurately account for, and report on its applicable cost report, the total value of any discount, rebate or other compensation paid hereunder in a way that complies with all applicable federal, state and local laws and regulations which establish "Safe Harbor" for discounts in accordance with, including without limitation, the federal anti-kickback law (42 U.S.C. § 1320a-7b(b)(3)(A)) and regulations thereunder (42 C.F.R. §1001.952(h)).

Buyer shall make a written request to Seller in the event Buyer requires additional information from Seller in order to meet its reporting requirements. Buyer acknowledges that agreement to such reporting requirement was a condition precedent to Seller's agreement to provide Products and that Seller would not have entered into this Agreement had Buyer not agreed to comply with such obligations.

MISCELLANEOUS

(a) Assignment Buyer may not delegate any duties nor assign any rights or claims hereunder without Seller's prior written consent, and any such attempted delegation or assignment shall be void.

(b) Governing Law & Legal Proceedings The rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without reference to its choice of law provisions. Each party irrevocably consents to any causes of action arising out of or relating to this Agreement to be heard in either the state or federal courts in Pennsylvania that have jurisdiction over Bucks County, and waives any other venue to which it may be entitled by domicile or otherwise. In the event of any legal proceeding between the Seller and Buyer relating to this Agreement, neither party may claim the right to a trial by jury, and both parties waive any right they may have under applicable law or otherwise to a right to a trial by jury. Any action arising under this Agreement must be brought within one (1) year from the date that the cause of action arose. The application to this Agreement of the U.N. Convention on Contracts for the International Sale of Goods is hereby expressly excluded.

(c) Severability In the event that any one or more provisions contained herein shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall remain in full force and effect, unless the revision materially changes the bargain.

(d) Waiver Seller's failure to enforce, or Seller's waiver of a breach of, any provision contained herein shall not constitute a waiver of any other breach or of such provision.

(e) Confidential and Proprietary Information Buyer agrees that all pricing, discounts and technical information that Seller provides to Buyer are the confidential and proprietary information of Seller. Buyer agrees to (1) keep such information confidential and not disclose such information to any third party, and (2) use such information solely for Buyer's internal purposes and in connection with the Products supplied hereunder. Nothing herein shall restrict the use of information available to the general public.

(f) Notice Any notice or communication required or permitted hereunder shall be in writing and shall be deemed received when personally delivered or three (3) business days after being sent by certified mail, postage prepaid, to a party at the address specified herein or at such other address as either party may from time to time designate to the other.