Please read these Terms and Conditions (“Terms” or “Terms and Conditions”), as they apply to all purchases of Products made by any Customer from MEDICAL SUPPLIES CO. (an assumed name of VER Holdings, LLC, a Kentucky limited liability company).
TERMS AND CONDITIONS OF SALE
1. Payment Terms
1.1 Customer agrees to pay all sums within thirty (30) days of the date of any invoice. Should Customer pay an invoice within ten (10) days of the date of any invoice, Customer may deduct from payment 1% of the total invoice amount. Medical Supplies Co. may commence collections proceedings at any point after thirty (30) days of non-payment from the date of any invoice. For any invoice not paid within thirty (30) days of the date of any invoice, Customer agrees to pay a monthly late charge on past due balances of 1.5% (annual rate of 18%) or the maximum rate otherwise allowed by law; Customer further agrees to pay reasonable attorneys’ fees, expenses, and costs incurred in enforcing this Agreement, including without limitation, fees and costs incurred in a bankruptcy proceeding, whether or not a lawsuit is filed.
1.2 If Customer fails to pay any or all of the invoiced amount when due, or if Customer’s credit or financial status erodes or otherwise renders Medical Supplies Co. insecure, Medical Supplies Co. may, without further notice immediately:
(i) Suspend Medical Supplies Co.’s performance hereunder; and/or
(ii) Declare due and payable all other amounts invoiced by Medical Supplies Co. to Customer regardless of when such payments would otherwise be due from Customer.
2. Non-Conforming Goods
Any discrepancy between any order placed and Medical Supplies Co.’s corresponding shipment or shipments, including damages, must be reported to Medical Supplies Co. for resolution within ten (10) days of Medical Supplies Co.’s invoice date. The only exception being for price discrepancies that must be reported to Medical Supplies Co. for resolution within thirty (30) days of Medical Supplies Co.’s invoice date. Medical Supplies Co. shall have no obligation to resolve, and Customer holds Medical Supplies Co. harmless and waives any rights to any discrepancy or to issue any credit or refund, or to replace any goods, if a claim therefore is not made within said applicable ten (10) or thirty (30) day period.
3. Shipment, Risk of Loss, and Title.
Shipment of Products per routine order to Buyer and subsequent back orders related to the original shipment shall be shipped FOB Destination. The cost of shipment, if any, has been paid by Medical Supplies Co. and added to the corresponding invoice. Emergency, rush orders, and orders not regularly scheduled are subject to an added shipping charge determined by Medical Supplies Co. All orders are subject to a handling charge and will be added to the corresponding invoice. Medical Supplies Co. shall have the right to ship the Products at all times via its own vehicle or a carrier selected by Medical Supplies Co. Medical Supplies Co. is not responsible for any duty or customs fees and the buyer may be invoiced separately for these charges. Upon signature of receipt, damage to goods becomes the responsibility of the Customer. All goods must be inspected prior to disposing of packaging materials. Damaged goods must be reported to Medical Supplies Co. immediately upon receipt with all packing materials still in Customer’s possession. Ten (10) days after Medical Supplies Co.’s invoice date, damaged goods become solely Customer’s responsibility.
All delivery dates quoted are estimates only. Medical Supplies Co. has the option to make partial deliveries and Customer shall accept these unless otherwise specifically agreed to by Medical Supplies Co.
4. Return of Products.
ALL REQUESTS FOR RETURN OF PRODUCTS MUST BE AUTHORIZED BY MEDICAL SUPPLIES CO. PRIOR TO RETURNING PRODUCTS. All returned Products must be in original packaging and in resalable condition, unless such Products are not in original packaging or resalable condition due to the fault of Medical Supplies Co. The amount of credit on any given return is based upon the following:
5. Excusable Delays.
If any party is unable to carry out its obligations hereunder (other than the obligation to make money payments), wholly or in part, by reason of an act of God or any other reason beyond the reasonable control of the party, including unavailability of Products, natural causes (fire, storms, floods), governmental or societal actions (war, invasion, civil unrest, labor strikes), infrastructure failures (transportation, energy), epidemics, pandemics and quarantines, etc., that party shall give the other party written notice thereof with reasonable particulars concerning it. During the period of delay, the obligations of all parties hereunder (other than the obligation to make money payments), shall be suspended. The affected party shall use reasonable due diligence to continue performance as quickly as possible.
When in the sole opinion of Medical Supplies Co. there is a shortage of supply of Products for any reason, Medical Supplies Co. may allocate its available supply among any or all of its various Customers upon such basis as Medical Supplies Co. shall deem fair and practicable, with no liability on its part for failure to deliver the quantity or any portion therein specified.
When applicable, sales tax shall be included in the price of Products and invoiced to Customer. Depending upon the purchase location or the shipping location, Medical Supplies Co. may be obligated to collect taxes on both the price of Product and shipping and handling charges. All other taxes (other than income or excess profit taxes) which may be imposed by any taxing authority on the sale, delivery or use of Products and for which Medical Supplies Co. may be held responsible for collection or payment, shall be paid to Medical Supplies Co. upon demand, unless Buyer has furnished to Seller an appropriate valid certificate of exemption issued by or acceptable to the tax authority in question. Seller currently collects sales tax in the following states: Kentucky (list subject to change, or be enforced without updated). If Seller does not collect tax in the Buyer’s state, the Buyer may be responsible to pay such tax in its own state, county, or municipality.
8. Disclaimer; No Warranties.
Medical Supplies Co. makes no representation or warranty of any kind, express or implied, as to the merchantability of any Products or their fitness for any particular use or purpose. Customer shall look to the manufacturer of products for any warranty thereon. No agent, employee, or representative of Medical Supplies Co. has any authority to make an affirmation, representation, or warranty concerning products not set forth in these Terms.
Customer shall not hold Medical Supplies Co. liable for any defect in products, regardless of kind, unless such defect results from the willful default or gross negligence of Medical Supplies Co. Customer agrees to file solely with the manufacturer of the products any claim or lawsuit alleging loss, injury, damage, or death arising out of or caused by the use, sale, distribution, or possession of products.
In no event shall Medical Supplies Co. be liable to Customer for incidental or consequential damages (including lost profits) from any cause, including, without limitation, damages resulting from any unavailability of, defect in, or misshipment of Products.
9. Pricing of Products.
Medical Supplies Co.’s product pricing is subject to change at any time and for any reason without notice to Customer. Previous catalog or website prices will not be honored for any reason. Pricing will be quoted and confirmed by Medical Supplies Co. at time of sale.
It is the intent of the parties to comply with the Federal anti-kickback statute’s safe harbor regulation regarding discounts or other reductions in price set forth at 42 C.F.R. § 1001.952(h). Medical Supplies Co. will fully and accurately report such discounts or other reductions in price on an invoice or statement submitted to the Customer. Medical Supplies Co. will also inform the Customer in a manner that is reasonably calculated to give notice to the Customer of Customer’s obligations to report such discounts or other reductions in price and to provide information upon request by the Federal or State agencies. Customer may have an obligation to report the discounts or other reductions in price and must provide information upon request by the Federal or State agencies.
11. No Resale.
Customer may not list or resell any of Medical Supplies Co.’s Products to any third party without Medical Supplies Co.’s prior written consent.
12. Government Contracts.
If the Products are to be used by Customer in connection with any contract with the United States or other government, then all terms and conditions required by the government contract or by applicable law or regulation with respect to the Products (“Government Terms”) are incorporated herein by reference. In particular, the Walsh-Healey Act (41 U.S.C. §§ 34-35); the equal employment opportunity and affirmative action clause set forth in Section 202 of Executive Order No. 11248; Section 503 of the Rehabilitation Act of 1973 (38 U.S.C. § 2012), all as amended; the Federal Contractor Certification as to Forced or Indentured Child Labor under Executive Order No. 13126 and Federal Acquisition Regulation (FAR) 52.222-18, and similar anti-forced and child labor rules of other countries and international bodies (“International” laws); and all regulations issued pursuant to such acts, are incorporated by reference, and Medical Supplies Co. shall include this incorporation in any subcontracts. If any provision of these Terms is inconsistent with any Government Term, the Government Term will control. Non-compliance with any United States or International law, executive order, or regulation referenced herein constitutes both a breach of these Terms and delivery of non-conforming goods and/or services by Medical Supplies Co., and entitles Customer to all remedies available as described in these Terms and Conditions.
13. No Waiver of Rights.
Medical Supplies Co.’s failure to insist upon performance of any of these Terms and Conditions, or to exercise any right or privilege, or Medical Supplies Co.’s waiver of any breach hereunder shall not thereafter waive any of the terms, conditions or provisions, whether of the same or similar type. The invalidity, in whole or in part, of any provisions hereof shall not affect the validity of any other provision.
14. No Assignment
This any order for Products is not assignable or transferable by Customer, in whole or in part, except by the written consent of Seller.
15. Governing Law and Forum.
Customer consents to the personal jurisdiction of the courts of the Commonwealth of Kentucky and agrees that venue may be placed in Fayette County, Kentucky, at the option of Medical Supplies Co. and waives any objection Customer may have to such personal jurisdiction and/or venue. This agreement and the Terms and Conditions will be construed, and the rights, duties, and obligations of the parties will be determined in accordance with the laws of the Commonwealth of Kentucky, without regard to its conflicts of law principles