EndocorpUSA’s Proposal, Sales Order, Repair Estimate Form, and any other related forms that may be attached hereto, accepted and signed by buyer (customer), in addition to the general terms and conditions contained herein shall constitute the sole and entire agreement (binding contract) between EndocorpUSA and buyer and are the only basis upon which EndocorpUSA offers to sell goods and services, unless otherwise agreed to in subsequent written agreement signed by a duly authorized representative of EndocorpUSA. Buyer’s terms and conditions and/or Purchase Order shall be of no effect to the extent they are inconsistent with or in addition to any provisions in the entire agreement, and not withstanding anything to the contrary in buyer’s Purchase Order, by paying the invoice, buyer accepts all of EndocorpUSA’s terms and conditions set forth herein.
Purchaser, represents that he/she is eligible to purchase, and licensed to use pre-owned medical equipment purchased from EndocorpUSA for his/her Own use, and/or is purchasing said equipment on behalf of another person or entity eligible to purchase and licensed to use them. Buyer is responsible for compliance verification to determine his/her eligibility and/or of end-user he/she represents for purchase and use of said equipment prior to entering into a purchase agreement with EndocorpUSA or its authorized representatives. Buyer agrees to release, hold harmless and waive any and all claims, causes of actions, damages (including consequential damages and/or loss of use) or liabilities of any kind or nature against EndocorpUSA, which may arise as a result of failure by buyer and/or end user the buyer represents to comply with eligibility requirements.
INSPECTION AND DELIVERY ACCEPTANCE
This shipment has been carefully inspected by trained EndocorpUSA personnel prior to transit and should be thoroughly inspected by customer upon receipt. Failure to reject any delivery upon receipt shall constitute acceptance by customer of the delivery and shall be deemed a waiver of any other right to reject or revoke acceptance.
CLEANING AND STERILIZATION
Buyer shall be responsible to clean, disinfect and sterilize all such items upon receipt, and prior to as well as after each use on patients in accordance with OEM’s “reprocessing’ procedures. Buyer agrees to indemnify, defend and hold EndocorpUSA, its officers, employees, and agents harmless from any and all claims for any damages arising from end-user’s non-adherence to infection control procedures instituted by the authorities having jurisdiction over the buyer or his/her end-user in connection with any medical equipment, instrument or consumables being sold by EndocorpUSA.
CUSTOMER SATISFACTION AND RETURNS
If buyer is not satisfied with the quality of pre-owned medical equipment pursuant to customer’s acceptance of delivery, EndocorpUSA will, at customer’s option, replace the said equipment with another of the same make and model, or issue a credit towards the customer’s account of an amount equal to the returned equipment purchase price (minus shipping, duty fees, taxes and other charges, as may be applicable), provided equipment is returned unused and with the same original containers and packing materials within Five (5) business days of the date and time first attempted delivery for local customers, and within Ten (10) business days of the date and time first attempted delivery for international customers. Should customer decline the replacement option within the allocated time limitation, EndocorpUSA will refund, in the form of cash payment, the said credit minus 25% of original purchase price for restocking fee. Should EndocorpUSA fail to provide the said replacement within two weeks from customer’s notification, EndocorpUSA will refund the customer full credit of an amount equal to the original purchase price. Item(s) must be physically at EndocorpUSA’s facility at the due times stated above to qualify for one-to-one replacement or for partial refund. Customer must obtain a Return Authorization Number (RA No.) from EndocorpUSA for all returns. Non-authorized returns will be returned to customer by collect freight.
STANDARD LIMITED WARRANTY ON PURCHASES
Subject to the exclusions or limitations and upon the conditions stated in this and other clauses in this “General Terms and Conditions”, EndocorpUSA warrants that the pre-owned equipment sold to Purchaser, if and when sold to Purchaser in a patient-ready condition, is in good working condition, is free from defects in materials or workmanship, significantly conforms to the Original Equipment Manufacturer’s (OEM) performance specification, and shall function properly under normal use and service for the Limited Warranty duration term indicated to Purchaser at time of sale, or as stated on the “Warranty Certificate” issued by EndocorpUSA. If sold equipment should prove to be defective within said period, Purchaser must return the equipment to EndocorpUSA and EndocorpUSA agrees, at its option, and at no cost to buyer, either to (i) to repair the defect using refurbished, reconditioned and/or serviceable original used parts or new parts of equal quality to original or (ii) to replace said endoscope or equipment with equivalent one, provided that EndocorpUSA investigation and inspection disclose that such defect(s) is developed under normal and proper use. Purchaser shall obtain Return Merchandise Authorization Number (RMA No.) from EndocorpUSA prior to shipment of warranted equipment to EndocorpUSA’s facility by calling 1-800- 789-7802. Excluded from this Warranty and not warranted by EndocorpUSA in any fashion, either expressed or implied are defect(s) or damage(s) to said equipment resulting from wear and tear, misuse, misapplication, mishandling, accidental or intentional dropping or knocking of said equipment, abuse, negligence, improper storage, improper transit, or use of accessories, consumables or supplies not approved by OEM- and additionally, where sold equipment is an endoscope, also excluded from this warranty, patient’s bites, fluid invasion caused by any of the previous factors or non-adherence to OEM’s leak test, cleaning, sterilization,
transport or storage procedures, misuse of biopsy forceps, cleaning brushes or other insertion methods leading to puncturing the internal tubing of endoscope. The Standard Limited Warranty shall be null and void if and when determined by EndocorpUSA that sold equipment has been disassembled, repaired, tampered with, altered, changed, or modified by persons other than those of EndocorpUSA, unless any such action is made with the written consent of EndocorpUSA.
All repairs are covered with ninety (90)-day warranty, which is only applicable to the specific repair completed by EndocorpUSA. Warranty excludes those repair “redos” determined by EndocorpUSA to be caused i) by fluid invasion caused by customer’s failure to use soaking cap during equipment cleaning procedure, or medical procedure, ii) by customer’s misuse or mishandling of equipment, iii) from improper storage procedure, iv) from excessive wear and tear, v) from accidental damage such as dropping or knocking equipment, or vi) from customer’s non-adherence to any of the OEM’s instructions related to the proper use and handling of said equipment.
EndocorpUSA makes no and disclaims all representations and warranties, either expressed or implied, with respect to the sold product or service, or concerning any patents, technology or design used or included in such product and service sold or distributed by EndocorpUSA, including without limitation any implied warranties of merchantability or fitness for a particular purpose or use. Buyer acknowledges and agrees that EndocorpUSA shall not be responsible for any damages buyer and/or the end-user buyer represents may incur from lost shipment during transit, delayed shipment, product failure, product design, repair failure, personal injury or from any other cause. Buyer agrees to indemnify, defend and hold EndocorpUSA, its officers, employees, and agents harmless from any and all claims for damages including, but not limited to, court costs, attorney fees, loss of data, loss of income, loss of profits arising or alleged to have risen out of EndocorpUSA’s sale of good and services forming part of this agreement and caused in whole or part by EndocorpUSA’s negligent. In the event that the buyer shall bring any suit, cause of action, claim or counterclaim against EndocorpUSA to the extent that EndocorpUSA shall prevail in such suit, cause of action, claim or counterclaim, the party initiating such action shall pay to EndocorpUSA the costs and expenses incurred by EndocorpUSA to answer and/or defend such suit, cause of action, claim or counterclaim, including attorney’s fees, court costs, witness fees and all other related expenses. Not withstanding other provisions, both the buyer and EndocorpUSA agree that they will not be liable to each other, under any circumstances, for special, indirect, consequential, or punitive damages arising out of, or related to this agreement.
The Buyer, whether the end-user or representative of an end-user, entering into this agreement with EndocorpUSA agrees to limit EndocorpUSA’s total liability to him or herself and to all parties buyer may represent, on this sale such that the total aggregate liability of EndocorpUSA to all those named shall not exceed the invoice value of goods or services rendered. The buyer further agrees to require of all the parties buyer may represent an identical limitation of EndocorpUSA’s liability for damages suffered by same arising from, but not limited to, EndocorpUSA’s errors, omissions, negligence, strict liability, or breach of contract or breach of warranty.
SHIPPING AND DELIVERY CHARGES
Not withstanding any other provision to the contrary, buyer shall be responsible for the freight charges to and from destination country for equipment purchases, equipment replacement or exchanges, warranty and non-warranty returns, or repair services. When returning an item for warranty purposes, exchange/replacement or repairs, customer shall return such items with proper insurance value placed on them. In the event of loss or damage to shipment, EndocorpUSA will assist the customer in processing the claim with the shipping carrier, and will immediately refund the exact claim value to customer upon its receipt from insurance carrier, unless directly advanced to the customer. EndocorpUSA shall not be held responsible for loss of or any damages incurred to any item during shipping to EndocorpUSA’s facility caused by customer’s failure to secure proper insurance on said item(s).
Prices do not include applicable sales, excise, use, value added or other taxes, custom duties, custom broker charges or any other similar charges or fees in effect or hereafter levied which EndocorpUSA may be required to pay or collect and all applicable duties and taxes, whether or not expressly set forth herein or in any of the other contract documents attached herewith. Buyer shall promptly pay for such costs to EndocorpUSA upon demand.
All sales orders cancelled by buyer three (3) days after signing this agreement shall be subject to 25% cancellation fee due and payable immediately upon demand. Clause 14 shall apply in the event buyer fails to pay the cancellation fee.
PAYMENT TERMS AND SECURITY DEPOSIT
Unless otherwise agreed to in writing with customer, payment terms on all goods and services purchased from EndocorpUSA are cash on delivery (COD). By signing this agreement, customer promises to accept and pay for purchased items or services forming part of this agreement upon delivery. Failure by buyer to accept and pay for purchased goods or services upon its delivery shall constitute a breach of contract. Further, EndocorpUSA, at its option, may require a security deposit as a pre-condition to any sale of good or services payable in advance of shipment, unless otherwise noted in the contract documents.
EXTENDED PAYMENT OPTION AND CREDIT TERMS
EndocorpUSA may, at its option, offer an extended payment plan of which exact payment terms shall be as specified in the proposal. Payment terms offered to buyer is subject to Buyer maintaining credit arrangements satisfactory to EndocorpUSA. EndocorpUSA reserves the right to revoke credit terms extended to Buyer in the event (i) Buyer fails to pay for any goods or services, previously or subsequently delivered or performed, when due, or (ii), in the opinion of EndocorpUSA there has been a material adverse change in Buyer’s financial condition. Upon such determination, EndocorpUSA shall have the right to demand payment or assurances, which it deems adequate before shipment or performance of any other goods and services.
FAILURE TO PAY AND SECURITY INTEREST
Failure to make any payment when due shall cause the entire amount of the unpaid debt to become immediately due and payable, at the option of EndocorpUSA. In addition to any other rights of EndocorpUSA, EndocorpUSA may, upon default of the Buyer in payment, (a) apply a service charge at the rate of one and one half percent (1-1/2%) per month on any unpaid balance and/or (b) remove the product and hold it or sell it at public auction or private sale, it being understood that EndocorpUSA is permitted to purchase at any public sage. If the unpaid balance plus interest and/ or service charges is not satisfied from the net proceeds of such sale (after deducting reasonable removal, storage, taxes and attorneys’ fees and other ordinary or necessary expenses incurred in connection therewith), the Buyer shall pay on demand any such deficiency as liquidated damages for breach of contract, along with all agency, attorneys’ fees and court costs incurred by EndocorpUSA in the collection of delinquent payments. Buyer hereby grants EndocorpUSA a security interest in the product and any proceeds (including accounts receivable) as security for its obligations hereunder and will execute any document required to perfect this security interest.
EndocorpUSA is organized under the laws of the State of Michigan (Michigan), USA. All agreements or contracts shall be governed by, construed and enforced in accordance with the laws of Michigan. The buyer agrees that any action or proceeding rising out of or related in any way to this agreement shall be brought solely in a lower or higher court of competent jurisdiction sitting in Wayne County, Michigan, USA. The buyer hereby irrevocably and unconditionally consents to the jurisdiction of any such court and hereby irrevocably and unconditionally waives any defense of an inconvenient forum to the maintenance of any action or proceeding in any such court, any objection to venue with respect to any such action or proceeding and any right of jurisdiction on account of the place of residence or domicile of any party thereto. The buyer hereby irrevocably and unconditionally waives the right of a jury trial in connection with any claim arising out of or related to this agreement, the information, or the transaction.
If any of the provisions contained in this document or other documents forming part of the agreement between EndocorpUSA and buyer should for any reason be held to be illegal, invalid, or unenforceable in any respect, such illegality, invalidity, or unenforceability shall not affect any other of the terms and conditions hereof and the terms and conditions hereof shall thereafter be construed as if such invalid, illegal, or unenforceable terms and conditions had never been contained herein.
All agreements, covenants, warranties, and provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, successors, assigns, administrators, and personal representatives.
SOLE AND ABSOLUTE DISCRETION
Notwithstanding anything herein to the contrary, whenever EndocorpUSA is entitled to exercise its “sole and absolute discretion”, such discretion may be exercised by EndocorpUSA for any reason or for no reason, whether such discretion is arbitrary, uncontrolled or unreasonable. EndocorpUSA’s exercise of its “sole and absolute discretion” shall be final and shall not be subject to appeal or be subject to adjudication by a court of law, arbitration, mediation, or otherwise.
WAIVER OF BREACH
Either party may specifically waive any breach of the terms and conditions hereof by the other party, but no waiver specified in this paragraph shall constitute a continuing waiver of similar or other breaches of terms and conditions hereof. A waiving party may at any time upon written notice to the breaching party, direct future compliance with the waived terms and conditions hereof, and the breaching party shall thereafter comply as directed from such time forward. All remedies, rights, undertakings, obligations, and agreements contained herein shall be cumulative and not mutually exclusive.
US EXPORT CONTROL LAWS
The buyer hereby certifies that any purchase made by buyer will not violate any of the US Export Control Laws and agrees that it shall not re-export any item or equipment in violation of the US Export Laws.
END OF STANDARD TERMS AND CONDITIONS
WEBSITE STANDARD TERMS AND CONDITIONS
These Website Standard Terms And Conditions (these “Terms” or these “Website Standard Terms And Conditions”) contained herein on this webpage, shall govern your use of this website, including all pages within this website (collectively referred to herein below as this “Website”). These Terms apply in full force and effect to your use of this Website and by using this Website, you expressly accept all terms and conditions contained herein in full. You must not use this Website, if you have any objection to any of these Website Standard Terms And Conditions.
This Website is not for use by any minors (defined as those who are not at least 18 years of age), and you must not use this Website if you a minor.
INTELLECTUAL PROPERTY RIGHTS
Other than content you own, which you may have opted to include on this Website, under these Terms, EndocorpUSA and/or its licensors own all rights to the intellectual property and material contained in this Website, and all such rights are reserved.
You are granted a limited license only, subject to the restrictions provided in these Terms, for purposes of viewing the material contained on this Website,
You are expressly and emphatically restricted from all of the following:
- publishing any Website material in any media;
- selling, sublicensing and/or otherwise commercializing any Website material;
- publicly performing and/or showing any Website material;
- using this Website in any way that is, or may be, damaging to this Website;
- using this Website in any way that impacts user access to this Website;
- using this Website contrary to applicable laws and regulations, or in a way that causes, or may cause, harm to the Website, or to any person or business entity;
- engaging in any data mining, data harvesting, data extracting or any other similar activity in relation to this Website, or while using this Website;
8. using this Website to engage in any advertising or marketing;
Certain areas of this Website are restricted from access by you and EndocorpUSA may further restrict access by you to any areas of this Website, at any time, in its sole and absolute discretion. Any user ID and password you may have for this Website are confidential and you must maintain confidentiality of such information.
In these Website Standard Terms And Conditions, “Your Content” shall mean any audio, video, text, images or other material you choose to display on this Website. With respect to Your Content, by displaying it, you grant EndocorpUSA a non-exclusive, worldwide, irrevocable, royalty-free, sublicensable license to use, reproduce, adapt, publish, translate and distribute it in any and all media.
Your Content must be your own and must not be infringing on any third party’s rights.EndocorpUSA reserves the right to remove any of Your Content from this Website at any time, and for any reason, without notice.
This Website is provided “as is,” with all faults, and EndocorpUSA makes no express or implied representations or warranties, of any kind related to this Website or the materials contained on this Website. Additionally, nothing contained on this Website shall be construed as providing consult or advice to you.
LIMITATION OF LIABILITY
In no event shall EndocorpUSA, nor any of its officers, directors and employees, be liable to you for anything arising out of or in any way connected with your use of this Website, whether such liability is under contract, tort or otherwise, and EndocorpUSA, including its officers, directors and employees shall not be liable for any indirect, consequential or special liability arising out of or in any way related to your use of this Website.
You hereby indemnify to the fullest extent EndocorpUSA from and against any and all liabilities, costs, demands, causes of action, damages and expenses (including reasonable attorney’s fees) arising out of or in any way related to your breach of any of the provisions of these Terms.
If any provision of these Terms is found to be unenforceable or invalid under any applicable law, such unenforceability or invalidity shall not render these Terms unenforceable or invalid as a whole, and such provisions shall be deleted without affecting the remaining provisions herein.
VARIATION OF TERMS
EndocorpUSA is permitted to revise these Terms at any time as it sees fit, and by using this Website you are expected to review such Terms on a regular basis to ensure you understand all terms and conditions governing use of this Website.
EndocorpUSA shall be permitted to assign, transfer, and subcontract its rights and/or obligations under these Terms without any notification or consent required. However, .you shall not be permitted to assign, transfer, or subcontract any of your rights and/or obligations under these Terms.
These Terms, including any legal notices and disclaimers contained on this Website, constitute the entire agreement between EndocorpUSA and you in relation to your use of this Website, and supersede all prior agreements and understandings with respect to the same.
GOVERNING LAW AND JURISDICTION
These Terms will be governed by and construed in accordance with the laws of the State of Michigan, and you submit to the non-exclusive jurisdiction of the state and federal courts located in Michigan for the resolution of any disputes.