EXTREMITY CARE, LLC – GENERAL TERMS OF SALE
1. Sales Terms: All sales of product by Extremity Care, LLC (“EC”) to a customer (“Customer”) shall be placed with EC by the submission of a sales order and confirmed by the issuance by EC of an invoice (the “Invoice”). All sales of product by EC are subject to the specific terms of sale described in the relevant sales order and Invoice as well as these General Terms of Sale which may change from time to time without notice. In the event of an inconsistency between the terms of the relevant invoice and any other document, the terms of the invoice shall prevail. No modifications or other changes of terms of the Invoice nor these General Terms of Sale are binding on EC unless expressly approved in a writing signed by EC. Any and all product warranties are provided by the product manufacturer, not EC. EC makes no warranties of any nature concerning the products and EXCEPT AS SPECIFIED BY THE MANUFACTURER IN WRITING, ALL OTHER WARRANTIES, CONDITIONS, STATEMENTS OR REPRESENTATIONS ORAL OR IN WRITING OF ANY NATURE, EXPRESS OR IMPLIED, ARE EXCLUDED INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING, LAW, USAGE OR TRADE PRACTICE TO THE FULLEST EXTENT PERMISSIBLE. This disclaimer and exclusions apply even if an express warranty fails of its essential purpose.
2. Payment: All payments due pursuant to an Invoice shall be paid within thirty (30)) days of the date of the Invoice unless otherwise specified in such Invoice. In any case EC may decide not to extend credit and may require payment up front or may give shorter payment terms. No discounts, cash or otherwise, shall be allowed or authorized, unless expressly included in writing on the Invoice. Any sales tax applicable on the sale or other tax, levy, duty or other charge imposed by any governmental authority concerning this sale of products shall be the responsibility of Customer. Customer’s failure to make any payment when due shall, at the option of EC, cause any unpaid indebtedness or other amounts due from Customer to become immediately due and payable. EC shall also be entitled, in addition to any other remedy available to it, to interest on all sums due but unpaid at the highest rate permitted by law from the date such sums were due. In the event EC has extended credit to Customer and Customer fails to timely make any required payments or, if in the sole discretion of EC there has been an adverse change in Customer’s financial condition, EC may cancel the sale and/or revoke credit terms and all sums due from Customer to EC may be immediately demanded unless Customer provides such additional security and/or additional assurance to EC as EC requires before any further shipment or release of product.
3. Claims; Remedies: Any claim by Customer concerning discrepancies or errors must be made by Customer in writing to EC’s sales department within forty eight (48) hours of receipt of the sales order or Invoice as applicable or such discrepancy shall be deemed waived. At all times all product must be properly protected and maintained in accordance with EC’s instructions and prudent measures under industry standards. All product received by Customer whether by common carrier, Customer’s vehicle, warehouse transfer or an additional method, must be examined by Customer concerning quantity, quality and any other conformance issue within ten (10) business days of Customer’s right to take possession of the product. Signature by Customer or Customer’s agent on the carrier’s bill of lading or warehouse delivery ticket without exceptions noted thereon constitutes conclusive proof that the product has been received by Customer in good condition. In the event Customer reasonably believes that all or a portion of the product does not meet the quality or quantity specifications stated on the Invoice, Customer shall submit a claim with EC’s sales department in writing in such form as required by EC and with such supporting documentation as requested by EC within such ten (10) day time period. In the event Customer does not object to all or a portion of the product represented by the Invoice in writing to EC within ten (10) days of Customer’s right to take possession of it, the product received shall be deemed to be in complete conformity with Invoice specifications and Customer shall be deemed to have accepted such product. In the event of Customer’s timely objection, EC reserves the right to conduct third party or internal product evaluations concerning any properly documented product complaints. The cost of such inspections and/or evaluations shall be borne by the Customer unless the product fails to meet Invoice specifications in which event EC shall bear such inspection costs. In the event EC agrees that some or all of the product represented by the Invoice is non-conforming, EC shall escalate such claim to the product manufacturer which, at its sole option, may replace the non-conforming product with conforming product, or issue a refund to Customer concerning the non-conforming product. Only unused and unopened product in its original undamaged packaging may be returned. Replacement or refund as determined by the product manufacturer is Customer’s sole remedy in the event of a valid discrepancy between the product described on the Invoice and the product received by Customer. UNDER NO CIRCUMSTANCES SHALL EC OR THE PRODUCT MANUFACTURER HAVE RESPONSIBILITY OR LIABILITY WHATSOEVER FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES HOWEVER CAUSED, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS. The aggregate liability, if any, shall not exceed the Invoice value as paid by the Customer.
4. Delivery: Unless otherwise specified on the Invoice, all sales are made ex-warehouse designated by EC. Customer assumes the risk of loss or damage to the product after it is made available for loading by Customer or its designated common carrier. In the event EC stores product at the request of Customer, such storage is at the risk and expense of Customer including storage charges. In the event EC arranges shipping, all product is shipped uninsured unless so designated on the Invoice and the cost of same is paid by Customer. If, however, all sums due EC under the Invoice have not been paid to EC prior to EC’s making such product available for pick-up by Customer or the common carrier, Customer must insure the product for the full purchase price against loss by accident or intentional misconduct with EC named as an additional insured. If Customer has not insured the product to the satisfaction of EC, EC may insure same at Customer’s expense. In addition, if all sums due EC under the Invoice have not been paid to EC prior to EC’s making the product available to Customer or the common carrier, Customer hereby grants to EC a purchase money security interest in and to all Customer products until payment is received by EC in full with EC having all creditors’ rights available to it in accordance with the Uniform Commercial Code and otherwise in accordance with applicable law. Further, unpaid for product shall be deemed to be under EC’s control and Customer agrees that on EC’s unilateral direction to the warehouse or other custodian of the products, EC may elect and the warehouse or custodian is authorized to transfer such product to the account of EC, re-sell the product to a third party or sell the product at auction, it being understood that EC is permitted to purchase such product at such sale or auction. If the unpaid balance plus applicable interest and any other sums due to EC from the Customer is not satisfied from the net proceeds of such sale or auction after deducting transfer and storage fees, taxes, reasonable attorneys’ fees and costs and other expenses incurred in connection therewith, Customer shall pay any deficiency. If Customer has requested a specific common carrier, delivery of product is subject to such carrier’s schedule and EC is not responsible for same. Delivery of all product is subject to force majeure including but not limited to Acts of God, strikes, worker disputes, flood, accidents, transportation delays, fuel or material shortages and any other causes beyond EC’s reasonable control.
5. Compliance: Customer is aware of and certifies that this sale is in compliance with all applicable law. Customer acknowledges that it will comply with applicable export laws in the event it wishes to export the product from the US and is responsible for all aspects of such export, including but not limited to compliance with US export and local import laws. In the event EC has extended credit to Customer, Customer will pay EC in full for the product prior to taking any action concerning the export or import of same and regardless of the status of approvals of such export or import. Customer further certifies and agrees that Customer will be solely responsible for any documentation or other requirements associated with any export or import of the Product by Customer or any other action requiring regulatory notice or approval, and hereby releases and holds EC harmless concerning export or import of the Product or any other action requiring regulatory action or approval.
6. Applicable Law; Venue, Dispute Resolution: This transaction and the products sold hereunder are deemed to have been made in the State of Florida and Customer consents to the personal long-arm jurisdiction of the courts of the State of Florida. These General Terms of Sale and any other documents between the parties shall be construed in accordance with the laws of the State of Florida, without regard to conflict of laws principles. The provisions of the United Nations Convention on contracts for the International Sale of Goods shall not apply to these General Terms of Sale, the Invoice, any documentation between EC and Customer or the relationship between Customer and EC. Venue for all actions hereunder may lie in the State and Federal Courts of Miami-Dade County. The prevailing party in any dispute, whether pursuant to arbitration or in litigation, will be entitled to recover its reasonable attorneys’ fees and costs. Customer hereby consents to personal service of process provided that process is served by certified, registered or express overnight mail or Federal Express or like courier service. Any action by Customer arising out of this transaction must be commenced within one (1) year from the date of the Invoice or it shall be deemed waived for all purposes.
7. Miscellaneous: Customer may not assign or delegate any of its responsibilities under these General Terms of Sale without the express written consent of EC. All terms set forth herein are binding upon and enforceable upon the heirs, executors, administrators, successors and assigns of Customer. These General Terms of Sale may only be modified in a writing signed by both parties. In the event any term herein is declared invalid or unenforceable, the remaining terms shall be unaffected and continue valid and enforceable. Failure to enforce any term once or on a number of occasions shall not be deemed a waiver of enforcement of that term or any other term in the future.