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GENERAL. These terms and conditions form an integral part of the Sales Agreement signed between the parties for the purchase/sale of the Equipment and will govern the rights and responsibilities of both parties.
ENTIRE AGREEMENT. This Agreement constitutes the entire agreement. Any acceptance of the Sales Agreement is limited to the terms of this Agreement. Once the Sales Agreement is signed, it can only be modified by a written amendment, in the form prescribed by the Seller, and signed by the authorized representatives of the parties. Neither the Seller nor the Buyer has entered into this Agreement based on any representation, warranty, condition, or commitment of any other party not set forth in this Agreement.
PURCHASE PRICE; PAYMENT. Unless otherwise agreed, the Purchase Price shall be paid in United States dollars (USD). The Purchase Price quoted in the Sales Agreement does not include any tax or regulatory tax, permits, duties, fees, customs entry service charges, terminal service charges, or other charges due to the execution or as a result of this Agreement. These amounts and any amount that is not specifically of the responsibility of the Seller under the Sales Agreement shall be the sole responsibility of the Buyer.
Unless otherwise agreed, no Equipment will be delivered until full payment of the purchase price, as well as any other expenses incurred by the Buyer, is received in the Seller's bank account indicated in the Sales Agreement or any other indicated by the Seller at the time and is accessible to the Seller without conditions. The title of the Equipment will pass to the Buyer only when the Seller receives the full purchase price of the same, as well as the payment for any additional costs that may arise because of the negotiation.
As long as the Seller has the equipment in its possession and 90 days have passed since the signing of the Sales Agreement, the agreement may be canceled at the Seller's sole discretion if the Buyer: a) has not yet paid the Seller in full for the equipment, including any additional costs that may have been incurred as a result of this negotiation; b) owes any amount to the Seller for any other reason; c) has not provided the Seller with shipping instructions for the purchased equipment. Cancellation of the Sales Agreement by the Seller under these conditions may result in the Seller not being obligated to deliver the equipment to the Buyer and being entitled to retain from the Buyer an amount of up to 30% of the total Sale amount as a restocking fee for damages and losses as a consequence of the cancellation of the Sales Agreement.
If at any time the Seller, at its sole discretion, feels insecure under the Agreement, the Seller may require adequate assurances from the Buyer, in a form and manner acceptable to the Seller, and the Seller may suspend its performance under this Agreement until such assurances are provided. Failure to provide such adequate assurances within ten (10) days of the request will constitute a breach by the Buyer, entitling the Seller to all its rights and remedies. Payments for the purchase of equipment, as well as any other related expenses incurred by the Buyer as a consequence of this agreement, must be made by bank transfer according to the instructions set forth in the Sales Agreement or any other instructions indicated by the Seller at the time. The Buyer will be responsible for all costs and fees generated by the payment transfer to the Seller.
In the event that the Buyer seeks financing or wishes the Seller to accept the payment of the purchase price from a third party, the following terms and conditions will apply. The Seller is not obligated to accept payments from third parties. The Buyer’s ability to obtain financing will not affect the applicability of this Agreement. All obligations of the Buyer under this Agreement will remain unchanged until the purchase price has been paid in full and the Buyer has fulfilled or waived any other obligation arising under this Agreement with the Seller. The Buyer agrees to instruct any third-party financier to make all payments as required in this Agreement and agrees to provide any third-party financier with all required documents and necessary progressive payment authorizations to finance the Seller according to the payment schedule of this Agreement.
The Seller commits to shipping the equipment to the Buyer according to the instructions given by the Buyer. All shipping costs for the purchased equipment, as per the Buyer's instructions, will be borne by the Buyer.
STORAGE COST. Starting 60 days from the signing of the Sales Agreement, the Buyer agrees to pay monthly storage costs for all equipment that: a) the Seller has already acquired and which the Buyer has not fully paid for; b) the Seller has already acquired and for which the Buyer has not provided shipping instructions for the purchased equipment.
The storage costs will be informed by the Seller to the Buyer before the 60 days after the Sales Agreement is signed. The storage cost will depend on the size and any additional specifications required by the equipment sold. The Buyer must pay the storage cost monthly to the Seller according to the instructions provided by the Seller for this purpose.
RESTOCKING FEE. In the event that the Buyer has paid in full or in part for the purchase of equipment and decides not to complete the purchase subject to the agreed terms and conditions, the Buyer agrees to pay a penalty to the Seller corresponding to 30% of the value of the equipment. This amount will be deducted from the payments received by the Seller.
TECHNICAL ASSISTANCE. The Seller agrees to provide technical assistance services for the repair of used medical equipment as agreed in this contract. Regarding the Equipment purchased by the Buyer and which are part of this contract, the Seller commits to providing up to 1 hour of technical assistance, at no cost to the Buyer, to address issues relevant to the operation of the equipment purchased that is part of this Agreement. The hourly cost for technical assistance will be as follows:
Option 1: $250 for the first 2 hours of technical assistance. The cost for each of the next 3 hours of technical assistance will be $150 each, and the cost for each additional hour thereafter will be $100 per hour of technical assistance.
Option 2: $450 for a total service of up to 3 hours of technical assistance, renewable for additional 3-hour periods at $450 each.
Payments will correspond to the technical assistance for the equipment part of this Agreement. The contracted technical assistance option will be valid for 1 calendar year from the date of the technical assistance that the Seller commits to provide as part of this Agreement.
The technical assistance does not include or form part of any supply of spare parts, software, licenses, etc., necessary for the operation of the Equipment.
The Seller agrees to provide trained and qualified personnel to perform the necessary technical assistance tasks. Both parties will agree in advance on the schedule and availability of this service.
The Buyer agrees to notify the Seller, with reasonable advance notice, of the need for technical assistance services. Likewise, the Buyer will be responsible for the costs incurred for the technical assistance service as stipulated in this Agreement. The parties agree that any changes to the terms and conditions of this technical assistance service must be in writing and signed by both parties.
LICENSED PRODUCTS. The Seller does not claim any right, title, or interest in any licensed software or other products ("Products") that may be required for the operation of the Sold Equipment, and similarly, the Seller disclaims any responsibility to acquire for the Buyer, or owners of said equipment, the legal right to use such equipment either by license assignment or other transfer, and such Products will remain at all times the property of the owner or owners thereof. The Buyer is solely responsible for obtaining or ensuring that the proper legal authority to use such Products is obtained from the owner or owners thereof, and the Buyer will indemnify and hold the Seller harmless from any claims by others arising from allegations of misuse by the Buyer, or from the Buyer's failure to comply with any copyright restrictions and any other proprietary interest claimed by others in relation to such Products.
The right to use any software or any other licensed product embedded in the Equipment will not be transferred by the Seller to the Buyer in accordance with the terms of this Agreement. The Buyer will be solely responsible for obtaining from the manufacturer of such software or licensed product embedded in the Equipment an independent license agreement covering such software or licensed product.
DISCLAIMER OF WARRANTIES. Unless otherwise stated in this Agreement, the Equipment is sold "AS IS, WHERE IS," with all defects, whether obvious or latent, that may be discovered before or after purchase by the Buyer. The Seller has not reconditioned, altered, modified, or manufactured the Equipment unless otherwise stated in this Agreement. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY RELATING TO THE ACCURACY OF THE EQUIPMENT SPECIFICATIONS OR OPERATION, NOR ARE THERE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. "First Use Warranty" means that the Equipment will operate according to or above the manufacturer's specifications in terms of image quality and performance at the time of delivery, subject to the Buyer's obligations under this Agreement; however, this is not a warranty of future performance.
The Seller represents that it has full right, title, and authority to sell the equipment to the Buyer.
RISK OF LOSS.The risk of loss or damage to the Equipment will pass to the Buyer when the equipment is delivered by the Seller to the shipping company that will transport the equipment according to the transportation instructions agreed upon with the Buyer.
SUBJECT TO AVAILABILITY. The Seller will make every effort to acquire the equipment subject to this Sales Agreement. However, the Seller's obligations under this Sales Agreement are subject to the availability of the equipment, which will be determined at the Seller's sole discretion.
PURCHASE FOR EXPORT. The Buyer must comply with all applicable local and U.S. laws, including, but not limited to, the Foreign Corrupt Practices Act. Additionally, the Buyer acknowledges that the Seller must comply with the applicable export laws and regulations related to the sale, export, transfer, assignment, disposal, and use of any Equipment acquired by the Buyer under this Agreement, including export license requirements. The Buyer agrees that such Equipment will not be used, exported, sold, transferred, assigned, or disposed of in any manner, directly or indirectly, that would result in a violation of such applicable export laws and regulations and, accordingly, agrees that if the Buyer purchases the Equipment for export, it will obtain all export licenses and other permits, licenses, and approvals that may be required to comply with all government regulations relating to the control of the Equipment's final destination and for the completion and execution of all export documentation. It will be a condition for the Seller’s continued performance of its obligations hereunder that compliance with all applicable requirements is maintained at all times of such export laws and regulations. THE BUYER AGREES TO INDEMNIFY, DEFEND, AND HOLD THE SELLER HARMLESS FROM ANY AND ALL COSTS, LIABILITIES, PENALTIES, SANCTIONS, AND FINES RELATED TO THE VIOLATION OF APPLICABLE EXPORT LAWS AND REGULATIONS.
NO CIRCUMVENTION. All or part of the Equipment described in the Agreement may be previously used equipment that the Seller has agreed to acquire from a third party (hereinafter, the "Source"). The Buyer agrees that the identity of the Seller’s Source is confidential information and the exclusive property of the Seller, which will not be disclosed to the Buyer, except when deemed necessary by the Seller, at its sole and absolute discretion, to carry out this Agreement. The Buyer, intending to be legally bound, both individually and corporately, hereby irrevocably agrees not to circumvent, avoid, or bypass the Seller, whether directly or indirectly, nor to evade the Buyer's obligations under this Agreement. Therefore, for a period of two (2) years from the date of this Agreement, if the Buyer purchases all or part of the Equipment described in the Agreement or any other equipment from the Source, directly or indirectly, the Buyer shall pay the Seller a finder's fee of 25% of the purchase price of the equipment. This term shall survive the termination of this Agreement.
BUYER REPRESENTATIONS AND BUYER REPRESENTATIONS AND RESPONSIBILITIES. The Buyer represents and warrants to the Seller that neither the equipment nor its components will be:BUYER REPRESENTATIONS AND RESPONSIBILITIES. The Buyer represents and warrants to the Seller that neither the equipment nor its components will be:
a. used for any purpose other than the intended medical use.
b. used or operated by untrained personnel.
c. deployed or used, directly or indirectly, to manufacture, develop, or disseminate any nuclear or conventional weapons.
d. transported in violation of U.S. import or export laws or other laws, including, but not limited to, regulations from the Office of Foreign Assets Control, the Bureau of Industry and Security, or Japan’s Export Control Orders and Foreign Trade Regulations.
Additionally, the Buyer represents that they will comply with all laws, regulations, and filing requirements related to the use of the purchased equipment.
The Buyer acknowledges and agrees that they are responsible for:
a. the selection of the Equipment.
b. any matters related to the construction of the facilities.
c. providing tracking and location information for the Equipment when requested.
In the event that the Buyer fails to meet any of their obligations under this Agreement, the Buyer is in "Default." If the Buyer is in Default, in addition to any other remedies provided under this Agreement or by law, the Seller may: (i) invoice and the Buyer will pay all costs incurred by the Seller in relation to the Default, including, but not limited to: materials, services, normal margins, overhead, and subcontracted materials and services; (ii) suspend performance of the Agreement; (iii) terminate the Agreement, retaining up to 25% of the Total Purchase Price or "Restocking Fee" as compensation for damages (regardless of the Seller’s ability to mitigate or find another buyer for the Equipment); (iv) accelerate and invoice any remaining payments due under the Agreement and/or (v) alter any of the shipping, installation, service, and/or warranty terms of the Agreement (including converting the Agreement to an "As Is, Where Is" sale). If the Seller exercises this option to alter the performance terms, the Seller will reduce the Total Purchase Price by a reasonable amount, determined at its sole discretion. The Buyer and the Seller agree that these remedies are reasonable given the sensitive nature of the Equipment and the unpredictable consequences of Default.
SEVERABILITY. If any provision of this Agreement is determined to be invalid, in whole or in part, it will not affect the applicability of any other provision of the Agreement, which will remain in full force and effect and unaffected by such invalidity.
ASSIGNMENT. The Buyer shall not assign this Agreement without the prior written consent of the Seller; such consent shall not be unreasonably withheld or delayed.
WAIVER. The fact that the Seller does not enforce the provisions of this Agreement shall not be construed as a waiver of such provisions, nor shall it affect in any way the Seller’s ability to enforce each of such provisions thereafter.
INDEPENDENT CONTRACTORS. Each party is an independent contractor. Neither party has the authority, express or implied, to act on behalf of the other in dealings with third parties, and neither will attempt to act as an agent or employee of the other. The Buyer and the Seller will be responsible for complying with all laws and regulations governing their respective businesses and will hold the other party harmless from any claims arising out of their business and conduct. The Seller will not be responsible for any payments due to or on behalf of the Buyer’s employees.
LIABILITY. The Seller’s liability to the Buyer for any loss or damage arising out of or resulting from this Agreement, its performance or breach, or the Equipment or services provided hereunder, shall not exceed the purchase price of the specific Equipment giving rise to the claim. If the Seller provided the Buyer with advice or other assistance related to the Equipment supplied under this Agreement or any other system or equipment under this Agreement, the provision of such advice or assistance shall not subject the Seller to any liability, whether contractual, warranty, tort (including negligence and strict liability), or otherwise. The parties agree that any claim, demand, or arbitration proceeding arising from the Agreement must be initiated no later than twelve (12) months (or the shortest time limit permitted by law) after the earliest of (i) the delivery of the Equipment to the Buyer that substantially conforms to the Agreement; or (ii) accrual of the cause of action subject to the proceeding. Each party waives any contrary statute of limitations. The Buyer will indemnify, defend, and hold harmless the Seller against all claims, liabilities, judgments, settlements, losses, damages, penalties, obligations, and expenses, including attorney’s fees, incurred by the Seller arising from any loss, damage, or injury occurring in connection with the selection, performance, subsequent use, and/or operation of the Equipment.
GOVERNING LAW; DISPUTE RESOLUTION; JURISDICTION. The Agreement will be interpreted and governed by the laws of the State of Florida and the United States of America. The provisions of the United Nations Convention on Contracts for the International Sale of Goods and any provision on conflict of laws requiring the application of a different choice of law are excluded. In the event of any dispute arising out of or related to the Agreement, the parties will first make every effort to resolve the dispute amicably. To that end, they will consult and negotiate in good faith to try to reach a mutually satisfactory solution. Upon notice by either party to the other, all disputes, claims, questions, or differences regarding the Agreement, or any other matter between the parties, will be finally resolved by binding arbitration, conducted in English using a single arbitrator (Notwithstanding the provisions in this section of the Agreement, the Seller may bring a claim for recovery in a competent court. )Unless otherwise agreed by the Seller: (1) if the arbitration involves only parties located in the United States, it will be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (AAA) in effect at the time of the arbitration request, which rules are considered incorporated by reference into this Agreement; (2) if the arbitration involves parties not domiciled in the United States, it will be conducted under the International Arbitration Rules of the American Arbitration Association (AAA) in effect at the time of the arbitration request, whose rules are considered incorporated by reference into this Agreement; (3) the arbitration will take place at the Seller's principal offices; (4) the arbitrator will be selected from a list using the selection method recommended under the applicable arbitration procedure; (5) the arbitrator's award will include costs, reasonable attorney's fees, and interest for the substantially prevailing party, but in no event will any party be awarded punitive or exemplary damages; and (6) the arbitrator's award will be enforceable in any court of competent jurisdiction.
