STANDARD TERMS AND CONDITIONS
1. Conditions of Transaction. By submitting payment for an invoice (“Invoice”), Customer agrees the terms and conditions set forth below shall apply to the products (“Products”) to which the Invoice relates and Customer further agrees to be bound by such terms and conditions. Emergent Respiratory expressly rejects Customer’s purchase order, or any other document or instrument issued by Customer that is not agreed to in writing by Emergent Respiratory.
2. Contract Documents. To the extent there is not already an existing contract signed by Customer relating to the sale of the Products reflected in the Invoice, the Invoice and these Standard Terms and Conditions comprise the complete and final agreement between Emergent Respiratory and Customer (the “Contract Documents”) concerning its subject matter, and supersede all prior negotiations, proposals, representations, commitments, understandings, or agreements between the parties, either written or oral. No other agreement, quotation, or acknowledgment in any way modifying any of the Contract Documents will be binding upon Emergent Respiratory unless made in writing and signed by Emergent Respiratory’s authorized representative. Content on a purchase order submitted by Customer shall be non-binding.
3. Compliance with the Law. Customer agrees that it will comply with all applicable laws, statutes, rules, regulations or orders of the jurisdiction where performance hereunder is carried out, as well as all applicable laws of the United States of America, including but not limited to the U.S. Foreign Corrupt Practices Act.
4. Compliance with Food and Drug Agency (FDA): FOR CLARITY, YOU AGREE THAT YOU AND YOUR ORGANIZATION ARE AUTHORIZED TO USE THE PRODUCTS OF EMERGENT RESPIRATORY AND ARE UNDER THE DIRECTION OF AN AUTHORIZED PARTY SUCH AS A MEDICAL DIRECTOR OR PRESCRIBING PHYSICIAN AND THAT YOU COMPLY WITH ALL FOOD AND DRUG AGENCY RULES, LAWS AND REGULATIONS. ADDITIONALLY, YOU AGREE THAT YOU WILL COMPLY WITH ANY AND ALL APPLICABLE LOCAL, STATE AND FEDERAL LAWS AS THEY PERTAIN TO THE USE OF EMERGENT RESPIRATORY PRODUCTS. YOU FURTHER AGREE THAT YOU HAVE RECEIVED THE APPROPRIATE TRAINING TO UTILIZE THE PRODUCTS OF EMERGENT RESPIRATORY AND COMPLY TO USE THE PRODUCTS AS THEY ARE DESIGNED FOR USE.
5. Warranty and Limitation of Liability. New Products purchased as reflected on the Invoice carry only those warranties as offered by the applicable manufacturer. Emergent Respiratory offers no additional warranties relating to new Products.
Unless otherwise noted on the Invoice, recertified Products carry the following warranty:
There will be no charge for parts or labor to repair a recertified Product during the warranty period. Replacement parts may, at Emergent Respiratory’s sole discretion, be new, used, reconditioned or refurbished. In the event Emergent Respiratory elects to replace a Product, the replacement unit may, at Emergent Respiratory’s sole discretion, be new, used, reconditioned or recertified so long as the replacement unit is functionally equivalent as the original recertified Product. Repaired or replaced Products are warranted for the remaining portion of the original recertified Product’s warranty period.
Warranties offered by Emergent Respiratory do not apply to abuse, accident, acts of God, consumable parts, accessories, improper installation or operation, and/or normal wear and tear or aging.
EXCEPT AS SET FORTH HEREIN, THERE ARE NO OTHER EXPRESSED OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANT ABILITY OR FITNESS FOR A PARTICULAR PURPOSE AS IT RELATES TO THE PRODUCTS. EMERGENT RESPIRATORY’S SOLE OBLIGATION AND CUSTOMER’S EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY OR FOR ANY BREACH OF THE CONTRACT DOCUMENTS SHALL BE, AT COMPANY’S OPTION, TO REPAIR OR REPLACE THE PRODUCT, OFFER A CREDIT OR OFFER A REFUND.
EMERGENT RESPIRATORY SHALL NOT BE LIABLE FOR ANY OTHER DAMAGES INCLUDING, BUT NOT LIMITED TO, INDIRECT, INCIDENTAL, CONSEQUENTIAL, LOST PROFITS, SPECIAL, PUNITIVE, OR
EXEMPLARY DAMAGES REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. IN NO EVENT SHALL EMERGENT RESPIRATORY’S LIABILITY FOR ANY CLAIM RELATING TO A PRODUCT PURCHASED BY CUSTOMER EXCEED THE AMOUNT CUSTOMER PAID FOR SUCH PRODUCT.
6. Rewards/Free Use Program. Customer shall be responsible for all regular service and maintenance of any Product placed through the Emergent Respiratory’s rewards and/or free use program.
7. Delivery. Unless stated otherwise agreed to in writing by Emergent Respiratory or specified otherwise on the Invoice, all Products shall be shipped FOB Origin, Freight Pre-Paid and Added to Invoice. Title to Products shall transfer to Customer at the time Products are delivered to the carrier, at which point Customer shall assume the risk of loss to Products. Additional handling charges may apply and will be prepaid and added to the Invoice of all open account and credit card purchases.
For international shipments, Emergent Respiratory will only be responsible for clearing Products for export outside of the United States. Customer shall remain responsible for (i) any and all shipping, freight and transportation costs; and (ii) licensing, fees, taxes, duties, assessments, paperwork, clearance of Products for import. Title to Products shall transfer to Customer at the time Products are delivered to the carrier, at which point Customer shall assume the risk of loss to Products.
Orders less than $150.00 are subject to a $10.00 small order handling fee. Orders subject to multiple handling fees will be charged only one fee, whichever is greatest.
8. Payment Terms and Taxes. Amounts payable under the Invoice are to be remitted by Customer to Emergent Respiratory within 30 calendar days after the date of the Invoice, is payable in U.S. dollars. Unless specified otherwise on the face of the Invoice, Customer shall be responsible for all federal, state, and local taxes, including income, excise, use, and sales taxes, and customs and import duties.
9. No Assignment. Customer shall not assign or transfer its rights, delegate or sublet its performance in whole or in part under the Contract Documents, or assign or transfer funds due hereunder, without Company’s prior written consent. Any attempted assignment or delegation without prior written consent shall be void and shall constitute a material breach of Contract Documents. The Contract Documents shall be binding upon Customer and its respective successors and permitted assigns.
10. Indemnity. TO THE MAXIMUM EXTENT ALLOWED BY LAW, CUSTOMER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS EMERGENT RESPIRATORY AND ITS OWNERS, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS AS WELL AS AFFILLIATES AGAINST ALL LOSS, DAMAGE, LIABILITY, COSTS, AND EXPENSE (INCLUDING REASONABLE ATTORNEYS’ FEES, ANY INJURY OR DEATH TO ANY PERSON, OR DAMAGE TO ANY PROPERTY) RESULTING FROM OR IN ANY WAY CONNECTED WITH (I) THE NEGLIGENCE OR WILLFUL ACT, OR OMISSION OF CUSTOMER OR CUSTOMER’S EMPLOYEE, AGENT, OR REPRESENTATIVE; AND (II) CUSTOMER’S USE OF ANY OF THE PRODUCTS. COMPANY SHALL HAVE THE RIGHT BUT NOT THE OBLIGATION, TO CONTROL THE DEFENSE OR SETTLEMENT OF ANY CLAIM OR LAWSUIT COVERED BY CUSTOMERS INDEMNITY HEREUNDER AND, AT EMERGENT RESPIRATORY’S OPTION, CUSTOMER SHALL AT CUSTOMER’S EXPENSE (A) DEFEND ALL ACTIONS BASED THEREON, OR (B) PAY COMPANY ALL ATTORNEYS’ FEES AND ALL OTHER COSTS AND EXPENSES ARISING FROM THE DEFENSE AND SETTLEMENT THEREOF BY EMERGENT RESPIRATORY -INDEMNIFIED PARTIES.
11. Governing Law. This Contract Document and the rights and obligations of Emergent Respiratory and Customer shall be governed and construed according to the laws of the United States of America and the State of California, without giving effect to its conflict of laws principles. Customer irrevocably agrees that any legal action, suit or proceeding brought by it in any way arising out of this Agreement must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal courts in San Diego, California. The United Nations Convention on Contracts for the International Sale of Goods, 1980 as amended, shall not apply to the Contract Documents.
12. EEO Compliance. Customer agrees to comply with all federal, state and local laws respecting discrimination in employment and non-segregation of facilities including, but not limited to, requirements set out at 41 CFR 60 – 1.4. Customer shall abide by the requirements of 41 CFR 60-300.5(a). This regulation prohibits discrimination against qualified veterans, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans. Customer shall abide by the requirements of 41 CFR 60-741.5(a). This regulation prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities.
13. Miscellaneous. No course of dealing between the parties or any waiver of a breach of any provision of the Contract Documents shall constitute a waiver of any other breach of such provision. Should any provision of the Contract Documents be held invalid or unenforceable, the remaining terms will remain in full force and effect, consistent with the terms of the Contract Documents taken as a whole. Each party shall be deemed an Independent Contractor of the other. Neither party shall be deemed an agent of the other. This agreement shall be governed, interpreted and construed in the English language hereof, regardless of any translations that may be made into any other language.
ORDERS AND PLACE OF SALE
We reserve the right to accept or reject any and all orders, regardless of the manner in which the order is made. Orders become valid, and the sale shall be deemed made in Carlsbad, San Diego County CA (as applicable) subject to the terms set forth herein. No change, modification or revision of your order shall be valid unless agreed to in writing by Emergent Respiratory.
Government agencies and municipalities may purchase on open account. All others may apply for open account status by completing a Credit Application. Individuals may purchase by prepaid orders (Money Order), Master Card, VISA, Discover, American Express or other authorized methods presented to you at check-out. If in our opinion the financial condition of the purchaser at any time does not justify continuance of shipment on the terms of payment specified, we may require full or partial payment in advance.
Accounts delinquent over 30 days will be charge at a rate the lesser of (i) 1.5% per month (or 18% per annum) or (ii) the maximum amount permitted by law. Accounts past due 45 days revert to C.O.D status.
PRODUCT RETURN POLICY
Prior to returning a product, please contact the Emergent Respiratory Customer Service Department at 1-866-411-4368 to obtain a return merchandise authorization (RMA) number. This will help us to expedite your return and allow us to give you the proper credit. Once you have received your RMA number please follow the return policy guidelines.
If Emergent Respiratory makes an error in fulfilling or shipping your order, we will promptly rectify the mistake at no cost to you. If we have made an error and you wish to return the product(s) to us, notification must be received within 15 days. Following the initial error notification, please follow the return policy guidelines:
Non-returnable Items Include:
1. Items that are special order items.
2. Items that are buy-to-order (BTO) items.
3. Items that have been marked or engraved.
4. Items returned with broken packaging or not in original packaging or otherwise not in resalable condition.
5. Customized items, any sterile product that has been opened or items determined by Emergent Respiratory not to be in resalable condition.
6. Product that is more than 30 days older than the invoice/purchase date.
7. Recertified equipment.
Return Policy Guidelines:
1. Items returned within 30 days of the invoice date will be subject to a 10% restocking fee.
2. Items returned 31 - 60 days than the invoice date will be subject to a 15% restocking fee.
3. Items older than 60 days from the invoice date will not be accepted in our warehouse and will be returned to the customer.
4. Please write the RMA number clearly on the package label.
5. Enclose a copy of the original invoice or packing list in the box.
6. Send the package freight prepaid (Or as authorized by Emergent Respiratory Customer Service).
7. Returns must be received by Emergent Respiratory within 15 days of issuance of RMA number.
8. Items received without a RMA number will not be eligible for credit.
RETURN FOR REPAIRS
Items to be returned for repair must be prepared according to the most recent OSHA requirements. Items must be properly cleaned and verified with a statement on the outside of the package. Proof of purchase must be included with all manufacturer warranty repairs. Please contact our Customer Service Department for additional information. All returns for repairs must be approved in advance by Emergent Respiratory.
Claims for damage occurring in transit must be made upon receipt of goods by customer directly to the carrier if shipment was a collect shipment. Claims for all other types of shipments should be reported to Emergent Respiratory Customer Service. Please save all boxes and packing material. All shipment errors must be reported immediately upon receipt to Emergent Respiratory Customer Service. If Possible please document damage to the shipping container via photograph.
The prices shown on this web catalog are to be considered current daily. However, because of fluctuating prices, pricing may change at any time without notification. Every effort has been made to insure content on this web catalog is correct and up-to-date. Emergent Respiratory is not responsible for typographical errors or other labeling errors contained on this web catalog.
Questions about the Terms of Service should be sent to us at email@example.com.