Terms & Conditions
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this document:
Contract means each agreement for the sale of Products entered into between Post Medical and the Customer.
Customer means any person who acquires or agrees to acquire Products from Post Medical.
Distributor Agreement means, where applicable, an agreement that exists between the Customer and Post Medical under which the Customer is appointed a distributor of Products on the terms and conditions of that agreement.
Post Medical means Post Medical Inc. and any related or associated company, together with its agents, servants and employees.
Order means any sales order form or order provided by the Customer to Post Medical for the purchase of Products and includes any acceptance by the Customer of a tender, quotation or offer made by Post Medical.
Products means the products specified in the Order.
Terms and Conditions means these terms and conditions of sale.
1.2 Interpretation
In this agreement, except where the context otherwise requires: a) the singular includes the plural and vice versa, and a gender includes other genders; b) another grammatical form of a defined word or expression has a corresponding meaning; c) a reference to a clause or paragraph is to a clause or paragraph of this agreement; and d) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re enactments or replacements of any of them.
2. FORMATION AND SCOPE OF THE CONTRACT
2.1 Terms and Conditions applicable
Unless there is express written agreement to the contrary (including any Distributor Agreement), the parties agree that any Order placed by the Customer is made subject to these Terms and Conditions. Any contrary terms printed on or accompanying the Customer’s order documentation will not apply in any circumstances. The Contract is the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.
2.2 Application of Distributor Agreement
If the Customer is a distributor of Products pursuant to a Distributor Agreement, these Terms and Conditions only apply in addition to the terms of the Distributor Agreement. If there are any inconsistencies between these Terms and Conditions and the Distributor Agreement, the terms of the Distributor Agreement will override these Terms and Conditions.
2.3 Confirmation of Orders
The parties agree that no Order placed by the Customer is binding on Post Medical unless and until Post Medical accepts the Order. Once accepted, a Contract exists which incorporates these Terms and Conditions. Post Medical may accept an Order by taking any steps to satisfy the Order. For any Orders received or accepted, Post Medical, in its sole discretion, reject any Orders, prioritize shipments of Orders and/or allocated Products among Orders. Post Medical will not be liable for any delay in or failure to fill any Order. Subject to any rights that the Customer may have against Post Medical for a material breach of these Terms and Conditions, any Order which has been accepted by Post Medical may not be cancelled by the Customer, except with the agreement in writing of Post Medical and, in such circumstances, only on the basis that the Customer must indemnify Post Medical in full against all reasonable loss, costs, damages, charges and expenses incurred by Post Medical as a result of such cancellation.
3. PRICE, SALES TERMS
All Orders will be invoiced to the Customer at the prices in effect at the time the Order is placed by the Customer or as otherwise agreed between the parties in writing. Prices for Products, sales terms and shipping terms may be changed by Post Medical at any time and from time to time without prior notice and the Customer may at any time request a copy of the then applicable price list, sales terms and shipping terms for Products at any time. Customer shall pay any taxes imposed on the sale of, or otherwise, with respect to the Products purchased hereunder. No claims, credits or offsets may be deducted by the Customer form any invoice amount.
4. PAYMENT AND DEFAULT
4.1 Payment
Unless expressly agreed otherwise in writing, the acceptance by Post Medical of the Customers initial order will be subject to the satisfactory completion, in Post Medical sole discretion, of the company’s standard credit approval process, such that: a) a Customer with a successful credit application will be entitled to terms for payment of the full amount of the Order strictly 30 days from the invoice date; b) a Customer with an unsuccessful credit application will be required to pay for the Order prior to delivery of products. Post Medical may change, suspend or revoke credit terms at any time.
4.2 Interest charge
Where the purchase price is not paid in full on the due date, Post Medical has the right to charge interest on the balance outstanding at the maximum rate allowed by law. Post Medical has the right to accelerate all balances outstanding on every invoice to the Customer if any amount is not received by the due date. Post Medical right to require payment of interest under this clause does not affect any other rights or remedies it may have relating to any failure by the Customer to pay an amount due under any Contract.
4.3 Indemnity for debt recovery
The Customer indemnifies Post Medical against all reasonable costs and disbursements which Post Medical may incur in recovering any sums due to be paid by the Customer to Post Medical under any Contract, including but not limited to any debt recovery agency fees, court fees or legal fees.
4.4 Right to cancel
Post Medical has the right to cancel the remainder of the Contract or to suspend deliveries of Products if the Customer does not strictly observe the terms of pricing and payment set out in this clause 4.
5. DELIVERY AND RISK
5.1 Delivery, transport and insurance
a. Post Medical will use reasonable commercial endeavors to achieve any delivery times stated by Post Medical but Post Medical will not be liable to the Customer or be deemed to be in breach of these Terms and Conditions, the Contract and any Order by reason of any delay in performing, or any failure to perform, any of Post Medical obligations in relation to the Products, if the delay or failure was due to any cause beyond Post Medical reasonable control.
b. Unless expressly agreed otherwise by Post Medical, and subject to clause 5.2, all Products sold to the Customer are delivered on the basis that Post Medical is responsible for arranging transportation from Post Medical premises to the Customer’s premises or other place as specified on the order form. Post Medical shall arrange insurance if the Customer so requests in writing, but the Customer is otherwise responsible for insuring the Products. Risk in such Products shall pass to the Customer upon the loading of the Products on the carrier.
c. Post Medical may invoice the Customer for the costs of freight and insurance (if applicable), or estimate thereof, of Products up to the time of delivery to the Customer’s premises or other place as specified on the order form.
5.2 Customer’s responsibility for regulatory compliance and taxes
The Customer is responsible for:
a. complying with any legislation and regulations governing the importation of the Products in the country or state of destination; and
b. paying all taxes, duties and tariffs, including but not limited to sales, use, property, licence, value added, customs, excise, import or similar taxes and duties, whether federal, state, local or foreign, imposed upon or with respect to the Products or the delivery, sale, use, ownership or possession.
5.3 Ownership of Products
The Customer acknowledges that, irrespective of the time when risk in the Products passes; that
a. ownership of the Products remains with Post Medical until the Customer has made payment in full to Post Medical of the purchase price and any other indebtedness of the Customer to Post Medical ;
b. pending payment in full of the purchase price, the Customer must store the Products only at the Customer’s place of business in such a manner that they are readily identifiable as Post Medical ‘s property and such Products must be marked accordingly. The Products must be adequately insured by the Customer against all insurable risks from the date Products are delivered to the Customer pending the passing of ownership to the Customer and the Customer must produce the insurance policy and latest premium receipt for inspection at the request of Post Medical;
c. if the Customer defaults in payment of the purchase price the Products must be delivered up to Post Medical on demand and/or Post Medical and its employees or agents have the right to enter upon the Customer’s premises or any other premises where the Products are known to be stored, to repossess the Products;
d. if, prior to payment, the Customer sells the Products to a third party and defaults in payment of the purchase price, Post Medical is entitled to so much of the proceeds of such sales (which must be kept separate and identifiable) as represent the purchase price or balance of the purchase price remaining unpaid. The Customer assigns to Post Medical the right to receive payment from the third party for the Products.
5.4 Claims
The Customer shall have fourteen (14) days from the date of delivery to inspect the Products. No claims will be recognised in respect of any mistake or shortage or over supply of Products if the claim is made after fourteen (14) days from the date of delivery.
6. CUSTOMER’S REPRESENTATIONS AND ACKNOWLEDGMENTS
6.1 Notification of requirement for particular purpose
Except for any purpose stated by the Customer to Post Medical in writing, and accepted by Post Medical prior to formation of the Contract, the Customer warrants that it has not advised Post Medical of any particular purpose for which it requires the Products. The Customer is not entitled to refuse to accept the Products or pay the purchase price, nor will Post Medical be liable in any way if the Products fail to comply with any requirements not disclosed by the Customer in writing to Post Medical, and accepted by Post Medical prior to the formation of the Contract. The Customer indemnifies Post Medical in full against any loss or damage suffered by Post Medical however arising out of any failure to comply with any requirements not disclosed in writing to Post Medical by the Customer prior to the formation of the Contract.
6.2 Customer acknowledgment
The Customer acknowledges that:
a. it has selected the Products from a range of products offered by Post Medical and the Customer has satisfied itself that the Products meet the Customer’s requirements;
b. no oral or written information, representation or advice given by or on behalf of Post Medical, other than as contained in the Contract, creates a warranty or in any way increases the scope of the Contract; and
c. unless expressly agreed otherwise in writing, the Customer has not relied on any information, representation or advice given by or on behalf of Post Medical in selecting the Products;
d. Post Medical makes no representation that its Products conform to country, state or local laws, ordinances, regulations, codes or standards (except as may otherwise be agreed to in writing by Post Medical) and the Customer is responsible for complying with all local laws relating to use of the Products at its own cost and expense; and
e. subject to any manufacturing defects, the Customer accepts all risk and responsibility for consequences arising from use of the Products, whether singly or in combination with other Products or products.
7. RECALL
Post Medical may, at its discretion or if required to do so by any regulatory authority, recall any Products already sold to the Customer (whether for a refund, credit or replacement of the Products) and the Customer must comply with any notice issued by Post Medical for such recall.
8. PRODUCT WARRANTY
8.1 No exclusion of statutes or laws
This clause does not exclude, restrict or modify the application of any applicable statutory provision to the extent where to do so would contravene that statute or cause any part of this clause to be void.
8.2 12 months warranty for certain defects
Post Medical warrants that, subject to clause 8.3 and 8.4, Products manufactured by Post Medical will be free from defects in materials and workmanship for a period of 12 months from the date an invoice is issued by Post Medical to the Customer. Should any fault occur within that period as the result of such defect and notice is given to Post Medical within 30 days of the defect occurring, Post Medical will make all necessary repairs, or at Post Medical ‘s sole discretion, replace the Products at no charge to the Customer.
8.3 Limitation of warranty and exclusion of liability
To the fullest extent permitted by law:
a. In the case of Products not manufactured by Post Medical, Post Medical ’s warranty in clause 8.2 is limited to the warranties implied by law and any further warranty contained in any manufacturer’s warranty for those Products, the benefit of which can be passed on to the Customer;
b. Post Medical ’s liability for breach of a condition or warranty implied by law, including any incidental or consequential loss which the Customer may sustain or incur is limited to one of the following, at the sole discretion of Post Medical (i) replacement of Products; (ii) repair of the Products; (iii) payment of the cost of replacing the Products or acquiring equivalent Products; or (iv) payment of the costs of having the Products repaired;
c. In addition to the limitation of warranty contained in this clause 8.3, Post Medical excludes liability for any other loss, damage or expense including(but not limited to) any special , incidental, consequential(including lost profits), multiple or punitive damages, that arises directly or indirectly in respect of the Products or otherwise in connection with the Contract, any breach of the Contract or any negligence by or on behalf of Post Medical , any negligent misrepresentation, or any other legal theory; and
d. Except for the express conditions and warranties contained in this Contract, all other conditions and warranties (whether as to the quality, fitness for particular purpose or any other matter) expressed or implied by statute, the common law, equity, trade custom, usage or otherwise are expressly excluded.
8.4 Warranty not applicable
The warranty contained in clause 8.2 does not apply in the following circumstances:
a. in respect of loss or damage caused by the installation, configuration, commission or use of the Products other than strictly in accordance with the Operators Manual, including without limitation loss or damage caused as a result of a failure to service, maintain, store or use the Products in accordance with Post Medical ‘s instructions, or caused by improper, inappropriate negligent or reckless handling of the Products;
b. the use of any consumables or accessories which are not approved or recommended by Post Medical for use with the Products;
c. the modification, alteration or adjustment of any Products without the written approval of Post Medical ;
d. the use of spare parts other than those supplied by Post Medical;
e. the use of repair services other than Post Medical (or a repairer specified by Post Medical); and
f. in respect of loss or damage caused by an act of God or any other cause not within Post Medical ‘s control or otherwise not related to the Products.
9. RETURN OF PRODUCTS
9.1 Procedure for return
a. If a Product is to be returned to Post Medical the Customer must first obtain a Returned Goods Authorisation (RGA) from Post Medical and must quote the RGA at the time of returning the Product.
b. If a Product is returned by Customer in accordance with the warranty in clause 8.2 and the warranty is not void for any reason:
c. Post Medical will not charge Customer for replacement or repair of the Product, as the case may be; and
d. Post Medical is responsible for all delivery and insurance costs incurred for the delivery of the Product to Post Medical ‘s place of business and for the return of the Product to the Customer.
e. If the repair or replacement of the Product does not fall within the warranty clause 8.2, or if the warranty is void for any reason, Customer will bear the costs of any replacement or repair of the Product, and will also be responsible for all delivery and insurance costs incurred for the delivery of the Product to Post Medical ‘s place of business and for the return of the Product to the Customer.
f. If the Customer returns any Products to Post Medical either under warranty (clause 8) or under this clause 9, it must use its best efforts to decontaminate the Products in strict compliance with any instructions or guidelines provided to the Customer by Post Medical.
9.2 Return Policy
b. Reasons for Returns. Any Customer may return a Product to Supplier for 100% credit, at the Customer’s option, if the Customer determines in good faith that any of the following conditions are met:
- Supplier shipped the Product in error;
- The Product is damaged before it is accepted by the Customer;
- The Product packaging or crating is damaged before it is accepted by the Customer;
- The Product does not materially perform to performance specifications provided by Supplier or the manufacturer of the Product;
- The Product does not meet industry quality standards related to performance specifications and data submissions required by the FDA or FDA approval of the Product;
- The Product is outdated or expired when delivered to the Customer; or
- Supplier gives prior written approval, which must not be unreasonably withheld.
- At Supplier’s discretion, returns can be accepted outside of the reasons listed above upon acceptance of a 25% restocking fee.
c. Manner of Return. Where possible, a Customer must return a Product in its original packaging or crating and in a saleable condition. Even if product is shipped in error on the part of the Supplier, the expectation would be for Customer to obtain RMA authorizing the return and then credit would be given to Customer upon Supplier’s inspection of the product returned.
10. INTELLECTUAL PROPERTY RIGHTS
Post Medical retains all of its intellectual property rights, including copyright, trademarks, trade secrets, patents and designs, and know-how relating to the Products manufactured or supplied by Post Medical (‘Intellectual Property Rights’). The Customer acknowledges Post Medical ‘s license to use or ownership of the Intellectual Property Rights and, in particular, agrees that neither the Customer, nor its servants or agents, will take any action or omit to take any action in relation to any of Post Medical ‘s Intellectual Property Rights which may render the Customer or a third party liable to Post Medical for violation or infringement of Post Medical ‘s Intellectual Property Rights.
11. INDEMNITY
The Customer indemnifies and holds Post Medical and its directors, officers, employees, agents and assignees harmless from and against any and all losses, costs and expenses of Post Medical and its directors, officers, employees, agents and assignees, including legal fees and expenses, arising directly or indirectly out of, relating to, or incurred in connection with:
a. any use of Products not in compliance with these Terms and Conditions or the Operators Manual;
b. any failure by the Customer or employees, agents or representatives to comply with surgical or medical practices that are consistent with industry practice, laws, guidelines or decisions in the handling or use of the Products;
c. any failure by the Customer or employees, agents or representatives to decontaminate the Products prior to returning the Products to Post Medical ;
d. any violation or infringement of any patent or other proprietary rights of third parties by the Customer or employees, agents or representatives in the handling or use of the Products; or
e. any modifications, alterations or adjustments to any Products made by the Customer or any other person;
f. any breach of the Contract by the Customer; or
g. any negligent act or omission by the Customer.
12. GENERAL
a. This agreement may be altered only in writing signed by each party.
b. Failure by Post Medical to insist upon strict performance of any term, warranty or condition of this Contract not deemed to be a waiver of any term, warranty or condition, or of any rights Post Medical may have and no express waiver is deemed a waiver of any subsequent breach of any term, warranty or condition.
c. All or part of any provision of these Terms and Conditions that is illegal or unenforceable may be severed from these Terms and Conditions and the remaining provisions of these Terms and Conditions will continue in force.
d. The Customer is not entitled to assign any of its rights or obligations under this Contract.
e. These Terms and Conditions, the Contract and any Order shall be construed, interpreted and enforced according to the laws of the State of Georgia, with regard to conflict of laws principles. The Customer agrees to comply with any and all applicable laws and regulations.
