1) PURCHASE PRICE
a) Price. The price for the products shall be the price quoted by Omni-Tract Surgical to buyer in writing, or, in the event no quotation was made, at the price set forth on Omni-Tract Surgical’s price list in effect as of the date of delivery requested by buyer. Typographical errors in stated product prices are subject to correction. Omni-Tract Surgical will not accept a purchase order requesting delivery of Products of less than $30.00.
b) Shipping, Insurance and Taxes. All prices for deliveries of Products within the United States are quoted FOB Buyer’s location via ground transportation unless otherwise provided in the quotation. If the buyer requests next day, 2nd day or 3rd day air service or requests Omni-Tract Surgical use the Buyer’s carrier, Buyer will be charged shipping costs. Omni-Tract Surgical will add such costs to the invoice issued to Buyer. All prices for products which are shipped outside of the United States are quoted F.C.A. Omni-Tract Surgical’s Minnesota facility (as such term as defined in Incoterms 2000.) Omni-Tract Surgical will arrange for shipment of the Products to the international location of the Buyer and shall add to the invoice for the products the cost of shipment of such products. Except as otherwise required by applicable law, Buyer agrees to pay any federal, state or local sales or use tax, which may be imposed upon the Products ordered by Buyer from Omni-Tract Surgical.
2) PAYMENT TERMS
a) Terms of Payment. Terms of payment are net 30 days from the date of invoice unless stated otherwise on the invoice. Omni-Tract Surgical may alter or revoke credit terms at any time without notice.
b) Late Payment Fee/Collection Costs. Any amounts owing by Buyer which are not paid when due will be subject to a late payment fee computed daily at a rate equal to the lesser of one percent (1.5%) per month or the highest rate permissible under applicable usury law. In addition, Buyer shall be liable to Omni-Tract Surgical for all costs incurred by Omni-Tract Surgical in its collection of any amounts owing by Buyer which are not paid when due, including collection agencies’ and attorneys’ fees and expenses, regardless whether an actual lawsuit is commenced.
3) SHIPMENT AND DELIVERY TERMS
a) Inspection and Acceptance. Buyer shall inspect all products upon arrival and shall notify Omni-Tract Surgical in writing of any shortages, nonconformance with the purchase order or any other failures to conform to this Agreement which are reasonably discoverable upon arrival. Any such shortages and other discoverable nonconformance or other failures under this Agreement not reported within thirty (30) days after receipt of the products shall be forever waived by Buyer.
b) Return of Products. Products may only be returned in accordance with Omni-Tract Surgical’s Product return policy, which may be changed from time to time without notice to Buyer. No product may be returned without first securing a return authorization number (RA) from Omni-Tract Surgical. Omni-Tract Surgical’s current policy is to allow return of unopened, current products within ninety (90) days of the invoice date. A twenty percent (20%) net selling price restocking fee will be charged for all used items that are returned or any items returned after thirty (30) days from the original shipping date. Under Omni-Tract Surgical’s current policy, the following products are non-returnable except for failure to meet the limited warranty described in Section 4 herein:
- Sterilized product which has been opened, returned out of the original shipping package or returned after the expiration date.
- Engraved product etched by hospital
- Custom made or modified product
- Product damaged beyond repair or refurbishing
- Obsolete or discontinued product
4) SPECIFICATIONS, LIMITED WARRANTY, DISCLAIMER OF WARRANTIES
a) Changes to Products/Specifications. Omni-Tract Surgical reserves the right to make changes to the products that it manufactures and/or sells at anytime without incurring any obligation to make the same or similar changes in/on products previously manufactured or sold. The only specifications which will be part of the terms of a Product order shall be the most current written specifications, if any, developed and distributed by Omni-Tract Surgical regarding the Products. All other material describing the Products is intended only to provide Buyer with a general idea about the products and may not be relied upon as a “basis of the bargain” for the purchase of the Products.
b) Limited Warranty. Omni-Tract Surgical warrants to the Buyer that its products will be free from defects in materials and workmanship under normal use and service in their intended surgical purpose and only when maintained in accordance with recommended maintenance procedures. Product wear from normal use is excluded from the terms of this limited warranty. In addition to the limited warranty printed on this page, disposable products are warranted to be in sterile condition provided the package in which the product is contained is intake in its original sealer state and the expiration date has not been surpassed. At Omni-Tract Surgical’s option, any product that proves defective in workmanship or materials during the warranty shall be repaired or replaced. All returns require a return authorization number.
This warranty is void if failure of the product has resulted from accident, abuse, misapplication, negligence, or if the product has been damaged, repaired or altered outside of Manufacturer’s facility.
c) Disclaimer of Warranty. EXCEPT AS EXPRESSLY PROVIDED IN ITS WRITTEN LIMITED WARRANTY, OMNI-TRACT SURGICAL MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, WHETHER AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR ANY OTHER MATTER. No employee or representative of Omni-Tract Surgical shall have the authority to bind Omni-Tract Surgical to any warranty or representation, except as expressly stated herein.
5) LIMITATION OF REMEDIES
OMNI-TRACT SURGICAL SHALL HAVE NO LIABILITY TO BUYER OR ANY PERSON CLAIMING THROUGH BUYER FOR, AND BUYER HEREBY EXPRESSLY WAIVES, ALL INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY DESCRIPTION, WHETHER ARISING OUT OF WARRANTY OR OTHER CONTRACT, NEGLIGENCE OR OTHER TORT, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, FORSEEABLE BUSINESS LOSSES, LOSS OF PROFITS AND RELIANCE DAMAGES. UNDER NO CIRCUMSTANCES SHALL OMNI-TRACT SURGICAL’S LIABILITY HEREUNDER FOR ANY CAUSE EXCEED THE PURCHASE PAID BY BUYER FOR THE PRODUCTS
6) MODIFICATION AND WAIVER
No purported amendment, modification of waiver of any provision hereof shall be binding unless set forth in writing signed by an officer of Omni-Tract Surgical.
7) APPLICABLE LAW AND JURISDICTION
This Agreement shall be interpreted and governed by the laws of the State of Minnesota, without application of its conflict of law provisions.
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