TERMS AND CONDITIONS
All quotations, products and services provided by Retrieve Medical Equipment, LLC, an Ohio limited liability company (“RME”) to any customer, distributor, original equipment manufacturer, end-user or other Buyer (“Buyer”) are furnished only on the terms and conditions stated herein. “Equipment” means the goods, equipment, materials, parts, supplies and/or services supplied by RME to Buyer as described in this document. By acceptance of Equipment or services from RME, Buyer accepts and agrees to be bound by these Terms and Conditions and agrees that, unless otherwise specified by separate written agreement between Buyer and RME, these terms and conditions, together with the item, quantity, delivery and other terms in RME’s order acknowledgment, shall constitute the entire agreement between the parties on the subject matter hereof, superseding all other communications, documentation and negotiations. Without limiting the foregoing, Buyer’s acceptance of Equipment or services hereunder shall be deemed a waiver of, and RME hereby expressly rejects, any different or additional terms, preprinted or otherwise, in any purchase order or other documentation furnished by Buyer, whether before or after delivery of the Equipment or services, and regardless of whether RME has acknowledged receipt thereof by signature or otherwise. No modification of these terms and conditions shall be valid against RME unless the modifications appear in negotiated agreement signed by an officer of RME.
1. Quotations & Prices. Quotations furnished by RME expire on the dates specified therein, and may be changed or withdrawn by RME at any time prior to written acceptance by Buyer and by an authorized representative of RME. Quotations to non-U.S. customers are solicitations for offers to purchase. Clerical or typographical errors are subject to correction. Quoted prices and delivery dates are subject to product availability and receipt of prior orders, and prices are valid only for the quantities, terms and payment schedule specified. Unless otherwise specifically agreed by RME in a separate written agreement or quotation, all prices are subject to change at any time without notice. Prices do not include, and Buyer shall be responsible for, any applicable sales, use, excise, value added, property, customs, import/export, and similar taxes or duties; costs for freight, transportation, inspection, and insurance; and any itemized delivery, expediting, installation, special packaging, or service charges, all of which, if paid or provided by RME, will be added to the applicable invoice and paid by Buyer in addition to the Equipment price. If Buyer asserts that any transaction is tax exempt, Buyer shall provide to RME an exemption certificate acceptable to the applicable taxing authority. Buyer acknowledges its responsibility for reporting the dollar value of any discounts or price reductions in any costs claimed or charges made to Medicare, Medicaid, and any other U.S. or foreign federal, state, or local program providing reimbursement to Buyer.
2. Acceptance and Cancellation of Orders. Orders for Equipment must be presented in writing or via electronic means acceptable to RME, and will be considered accepted only by written or electronic confirmation or by shipment of the Equipment ordered. RME reserves the right, at its option and without liability, to refuse any order, in whole or in part, or to specify an alternate delivery schedule if orders from all sources exceed RME’s inventory or ability to deliver. RME may allocate available inventory and production in its sole discretion. Accepted orders may be cancelled by Buyer only if equipment fails inspection and only upon payment of such reasonable cancellation charges as RME may request. RME's performance is subject to approval of Buyer's credit, and RME, with reasonable cause, may cancel any order placed by Buyer or refuse or delay the shipment thereof if Buyer fails to meet any of its obligations as provided herein.
LIQUIDATED DAMAGES. IF THE CLOSING DOES NOT OCCUR SOLELY DUE TO BUYER’S DEFAULT UNDER THIS AGREEMENT (ALL CONDITIONS TO BUYER’S OBLIGATIONS HAVING BEEN SATISFIED OR WAIVED), IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER. THEREFORE, THE PARTIES HAVE AGREED THAT A REASONABLE ESTIMATE OF THE TOTAL DETRIMENT THAT SELLER WOULD SUFFER IN SUCH EVENT IS AND SHALL BE THE RIGHT TO RETAIN THE DEPOSIT TOGETHER WITH ANY AND ALL INTEREST THEREON AS LIQUIDATED DAMAGES, AS SELLER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT. SUCH LIQUIDATED DAMAGES ARE NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF APPLICABLE LAWS.
3. Payment Terms. Unless otherwise specified in RME’s order acknowledgment, RME requires 100% of the total amount a minimum of 5 days ahead of equipment removal in U. S. dollars. Orders from outside the U.S. require advance remittance by wire transfer. Alternate international payment terms are considered upon request. Payment terms shall not be affected by any delay in delivery, installation or acceptance. Should Buyer become delinquent in any payment due, RME in its discretion may institute credit hold procedures on all open orders. Future orders will not be confirmed until Buyer’s account is brought current, including any outstanding interest charges. RME may set off against any sum otherwise due from RME to Buyer or its affiliates any sums or amounts then due from Buyer and its affiliates to RME.
4. Shipment & Inspection. Taxes, duties, freight, insurance and shipping charges, including fees and import/export duties, if any, will be invoiced to Buyer and are subject to all terms and conditions of payment herein. Buyer shall inspect all Equipment upon de-installation and provide written notice to RME within 24 hours of any claim for shortage or other nonconformance. If Buyer fails to give timely notice, all Equipment will be deemed to conform to the terms of Buyer’s order and will be deemed accepted. Use or resale of Equipment in any manner following delivery shall also constitute acceptance by Buyer.
5. Delivery and De-Installation. RME will endeavor to schedule accepted orders promptly; it is understood, however, that dates indicated for delivery or performance represent RME’s best current estimates only and failure to perform within such dates will not subject RME to liability. Where de-installation and acceptance terms are specified in RME’s quotation or acknowledgment, RME will provide an estimated de-installation schedule, and final coordination of de-installation requirements will be made by Buyer and RME no later than 30 days prior to the scheduled date, unless otherwise agreed by RME in writing. Buyer is responsible for having the building, equipment, and service ready to deinstall and remove the Equipment on the estimated date, and for providing all necessary labor, unless otherwise mutually agreed. Use of the Equipment by Buyer or any of its employees, officers, directors, agents, representatives, contractors, licensees, or affiliates (“Representatives”) for any purpose after delivery thereof, without RME’s express written consent, shall also constitute acceptance of the Equipment by Buyer. Buyer shall reimburse RME at RME’s standard rates for any extra time, travel, or expense resulting from absence or inadequacy of rescheduling arrangements or other delay or prolongation of deinstallation caused by Buyer or its Representatives. Buyer shall be completely responsible for any damages caused solely by Buyer or its agent(s) as a direct result of the deinstallation of any Equipment. The Contractor shall repair any damages caused by the deinstallation to match the original conditions in both material and workmanship.
6. Disclaimer. TO THE FULLEST EXTENT PERMITTED BY LAW, ALL EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, TERMS, OR CONDITIONS, WRITTEN OR ORAL, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES, TERMS, OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, RECALL STATUS, CORRESPONDENCE WITH DESCRIPTION, AND NONINFRINGEMENT, ARE HEREBY EXPRESSLY DISCLAIMED. UPON TRANSFER, RME SHALL SELL AND CONVEY TO BUYER, AND BUYER SHALL ACCEPT THE EQUIPMENT “AS IS, WHERE IS, AND WITH ALL FAULTS.” BUYER HAS NOT RELIED UPON AND WILL NOT RELY UPON EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF RME WITH RESPECT TO THE EQUIPMENT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN. BUYER WILL CONDUCT SUCH INSPECTION OF THE EQUIPMENT, AS BUYER DEEMS NECESSARY TO SATISFY ITSELF AS TO THE CONDITION OF THE EQUIPMENT AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF RME. UPON CLOSING, BUYER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO, LATENT DEFECTS, MAY NOT HAVE BEEN REVEALED BY BUYER’S INSPECTIONS. BUYER, UPON CLOSING, HEREBY WAIVES, RELINQUISHES AND RELEASES RME FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT [I.E., NEGLIGENCE AND STRICT LIABILITY]), LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS’ FEES AND COURT COSTS) (COLLECTIVELY, “CLAIMS”) OF ANY KIND AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH BUYER MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER AT ANY TIME BY REASON OF OR ARISING OUT OF ANY DEFECT, THE VIOLATION OF ANY APPLICABLE LAWS AND ANY AND ALL OTHER MATTERS REGARDING THE EQUIPMENT.
7. Calibration and Radiation Delivery; Software. Buyer will be responsible for calibration of all radiation producing equipment. The dose rate and integrated dose measured by the accelerator transmission ionization chamber and dosimetry electronics must be calibrated by a qualified radiological physicist prior to use of any RME Equipment for patient treatment. Buyer will be responsible for testing and calibrating equipment on a regular basis. Buyer will also be responsible for any radiation surveys required by applicable law or regulation or necessary to establish that radiation does not exceed safe levels. BUYER RETAINS FULL RESPONSIBILITY FOR THE ACCURATE CALIBRATION AND SAFE TRANSMISSION OF RADIATION TO ANY THIRD PARTY, WITH OR WITHOUT RME'S EQUIPMENT IN PLACE. RME will not be held responsible for any licensing agreements or the transferring of any operational or service related OEM software and/or hard drives.
8. Use Restrictions & Requirements. Buyer is responsible for obtaining all permits and meeting all applicable codes, regulations, recommendations and requirements of competent health, radiation-protection, and other authorities pertaining to the Equipment, its installation and use (it being understood that RME makes no warranty of any kind regarding compliance with such requirements). Buyer is responsible for final system testing and operational verification following installation of the Equipment. Buyer agrees to complete all required documentation relating to the relocation and installation of the Equipment, including the completion and filing of the FDA2579 form. Buyer agrees to provide RME with a copy of this form upon completion by Buyer. Buyer may not (a) alter, copy, adapt, develop, modify, reverse engineer, disassemble, create derivative works from, or make any changes to any Equipment or materials provided by RME, including but not limited to Equipment software, firmware, packaging, labels, and instructions for use, or permit any distributor, agent, representative, or end-user to do so, without prior written consent from RME or the applicable supplier or OEM; (b) import, export, sell, transfer, service, store, or otherwise handle, distribute or use any Equipment, software, or documentation in any manner prohibited by applicable laws and regulations, including all applicable export control laws, restrictions and regulations, or contrary to any written warning or instruction given by RME or its suppliers, licensors or OEM with respect to such Equipment, its handling, storage, or use in the Equipment documentation, on RME’s website, or otherwise; or (c) make any representations or warranties on behalf of RME as to the quality, merchantability, fitness for a particular use, or other features of the Equipment.
Buyer acknowledges and agrees that the Equipment and related technology are subject to trade compliance and other laws and regulations, and agrees to comply with all applicable laws, regulations and governmental requirements in connection with the purchase, shipment, import, export, and/or delivery of products from or into any jurisdiction, including payment of all applicable taxes or duties, obtaining all required governmental permits, licenses and approvals, and compliance with all requirements necessary to use and/or conduct medical device and/or equipment sales of products in any jurisdiction, including any use, distribution, or sale thereof as a component of any Buyer or third party products. Unless prohibited by applicable law, Buyer agrees to hold RME harmless from all liabilities, claims, losses, damages, and expenses (including without limitation reasonable attorneys’ fees and expenses) arising out of Buyer’s breach of these terms and conditions.
9. Governing Law. These Terms and Conditions and all transactions to which they may apply, including without limitation any disputes arising out of deliveries by RME to Buyer, shall be governed by and construed and enforced in accordance with the laws of the State of Ohio and the United States of America, without giving effect to any conflict of law provision that would cause the application of the laws of any other jurisdiction, except where expressly prohibited by applicable law or constitutional provisions restricting choice of law by a political subdivision, agency or instrumentality. Each party agrees to personal jurisdiction in any action brought in any court, Federal or State, within the County of Cuyahoga, State of Ohio having subject matter jurisdiction over the matters arising under these Terms and Conditions and all transactions to which they may apply.
Any suit, action or proceeding arising out of or relating to this these Terms and Conditions and all transactions to which they may apply shall only be instituted in the County of Cuyahoga, State of Ohio. Each party waives any objection which it may have now or hereafter to the laying of the venue of such action or proceeding and irrevocably submits to the jurisdiction of any such court in any such suit, action or proceeding. To the extent that the United Nations Convention on Contracts for The International Sale of Goods could be applicable by operation of the laws of the United States and the State of Ohio, the Parties hereby opt out of the application of the Convention, and any applicable international discovery and service of process conventions will be inapplicable.
10. Finance Charges and Collection Expenses. Any amounts due to RME that are not paid when due will bear interest from the date due until paid in full at the lower of 1.5% per month or the highest legal rate, compounded monthly. If RME deems it necessary to refer an account to an agent or attorney for collection, all costs and expenses of collection (including, without limitation, reasonable attorneys’ fees) will be charged to Buyer’s account and accrue interest at the rate stated above, unless prohibited by applicable law. RME may set off against any sum otherwise due from RME to Buyer or its affiliates any sums or amounts then due from Buyer and its affiliates to RME, and will retain a purchase money security interest in all Equipment sold (and proceeds thereof) until receipt of full payment, including interest and collection costs. Buyer agrees to sign and authorizes RME to file financing statements as necessary to perfect such security interest.
11. Force Majeure. Neither party will be liable for non-performance or delay in performance of any obligation (other than payment of monetary sums due) to the extent caused by events or circumstances beyond such party’s reasonable control and without negligence on its part, provided that the party so affected uses reasonable efforts to avoid or remove any causes of nonperformance and continues performance with reasonable dispatch whenever such causes are removed. For delays resulting from any such causes, performance will be correspondingly extended.
12. Limitation of Claims and Liability. No claims, regardless of form, arising out of or in any way connected with the transactions, Equipment, or services to which these Terms and Conditions apply may be brought by Buyer more than one year after the cause of action has accrued or performance hereunder has been completed or terminated, whichever is earlier.
13. Indemnity. Buyer agrees to defend, indemnify, release and hold RME, harmless from and against all costs, damages, losses, fines, penalties, expenses (including court costs and reasonable attorney’s fees) and liabilities arising out of claims, demands, or causes of action brought by any person or entity for bodily injury to or death of, any employee of Buyer, contractor, officers, directors, shareholders, subcontractor, agent, invitee, parent, co-owner, co-venturer, co-lessor, partner, subsidiary or affiliate of Buyer (“Buyer Group”), or for damage to or loss of property owned or leased by Buyer Group, which injury, death, damage, liability, claim, demand or loss arises out of or is incidental to the performance of this Agreement, or in any way is related to the use of the Equipment whether by Buyer Group or another end user, REGARDLESS OF WHETHER CAUSED BY DEFECTS IN MATERIALS AND WORKMANSHIP OR FAILURE OF THE EQUIPMENT OR SERVICES, OR THE NEGLIGENCE, IN ANY FORM, OR FAULT, OR STRICT LIABILITY OF RME, OR ANY OTHER PERSON NATURAL OR OTHERWISE, ANY DEFECT IN ANY PREMISES WHETHER PRE-EXISTING THIS CONTRACT OR NOT AND WHETHER SUCH DAMAGES, LOSSES, INJURIES, LIABILITIES, CLAIMS OR DEMANDS ARISE FROM TORT, CONTRACT, QUASI-CONTRACT OR OTHERWISE.
The indemnification provided hereunder shall be effective to the maximum extent permitted by applicable law. The parties agree that in the event any law is enacted in any state, the laws of which are applied to this Agreement that limits in any way the extent to which indemnification may be provided to an indemnitee, then this agreement shall automatically be amended to provide that the indemnification provided hereunder shall extend to the maximum extent permitted by applicable law. The parties agree that the foregoing indemnity obligations shall be supported by equal amounts of insurance or qualified self-insurance maintained by Buyer, respectively, which shall be no less than the amounts of insurance set forth in Section 14.
14. Insurance. Buyer agree to procure and maintain, at its sole expense, policies of insurance or qualified self- insurance, no less than the following minimum limits and have RME named as additional insured: Workers Compensation Statutory; Employer’s Liability $1,000,000 per occurrence; Comprehensive General Liability Combined Single Limits for Bodily Injury and Property Damage shall be $1,000,000 per occurrence; Automobile Liability Combined Single Limit for Bodily Injury and Property Damage of $1,000,000 per occurrence.
It is understood that to the extent of Buyer’s indemnity obligations under this agreement, its policies shall be primary and shall receive no contribution from any insurance policies maintained by or on behalf of RME. Buyer, on request, shall furnish the other party with insurance certificates evidencing the aforementioned minimum limits of insurance. Such insurance certificates shall state that insurers shall endeavor to give RME thirty (30) days’ written notice in the event of any material change in or cancellation of the aforementioned insurance policies.
15. Miscellaneous. RME's rights and remedies herein are cumulative and in addition to all other rights and remedies available at law or in equity. Failure to enforce any provision of these Terms and Conditions will not be construed as a waiver of such provision or any other provision nor of the right to enforce such provisions. The invalidity, in whole or in part, of any provision hereof will not affect the remaining provisions. Any waiver or renunciation of a claim or right arising out of breach must be in writing and signed by the injured party. Section headings are for convenience only, and may not be used in the interpretation hereof.
