TERMS AND CONDITIONS OF
Acceptance and Restocking
Fee:
This Order becomes
a binding contract, subject to the terms and conditions hereof, when accepted by
an authorized representative of Jaken Medical Inc. (JM Inc.) and/or commencement
of performance thereon by JM, Inc. No change, modification, nor revision of this
agreement shall be valid unless in writing and signed by an authorized agent of
JM, Inc. In case of any conflicts between the terms on the face of this Order
and the terms and conditions set forth below, the terms on the face of the Order
shall control. All items returned or items cancelled will be subject to a 25%
restocking fee.
Identification-Risk of
Loss:
Identification of
the equipment under California Commercial Code Section 2051 shall occur at the
moment this Order is signed by the parties. Risk of loss of the equipment shall
pass to Buyer on identification. All Freight Damage Claims must be made at point
of delivery and itemized by freight carrier.
Disclaimer of Express
Warranties:
Seller warrants
that the equipment is as described in this Order, but no other express warranty
is made with respect to the equipment.
Disclaimer of
Warranties:
There are no
warranties that extend beyond the description on the face of this Order. Seller
disclaims any warranty, express or implied that the equipment is merchantable or
fit for any particular purpose.
Assignment of Warranty
Rights:
Seller agrees to
assign Buyer, at Buyer’s written request, all rights Seller may have against
manufacturers or distributors for breach of warranties relating to the
equipment. Seller agrees to execute any documents of assignment that Buyer may
request.
Warranty
of Title:
Seller warrants
that it has the right to transfer a good and clean title to the equipment; that
the equipment now is and on deliver will be free from all security interests and
other liens and encumbrances; that Buyer will have a peaceful possession and
quiet enjoyment of the equipment.
Trade
Usage Warranties Excluded: Seller disclaims all warranties of
the equipment (including warranties of merchantability) arising from course of
dealing or usage of any trade. Buyer acknowledges that (i) there are no
warranties implied by custom or usage in the trade of either Buyer or Seller
that have become a part of the basis of the bargain; (ii) as is customary in the
trades of Buyer and Seller to give no warranties in sales of equipment; and
(iii) Seller’s prior dealings with Seller do not imply that Seller warrants the
equipment in any way.
Seller
Warranty Against Infringement Excluded: Seller makes no warranty that the
equipment is or will be delivered free of the claims of any person by way of
patent, copyright or trademark infringement or the like. Buyer agrees to
indemnify and hold harmless Seller from any claims made against Seller for
patent, copyright or trademark infringement or the like, related to the
equipment sold to Buyer, including indemnification or reimbursement of
attorney’s fees and costs that Seller may in cur from such
claims.
Statements are Opinions, Not
Warranties:
Buyer and Seller
agree that any statements and representations made by Seller were only Sellers
opinion, were not a part of the basis of the bargain, and are not warranted to
be accurate. Buyer and Seller agree that if any statement made by Seller in this
Order or otherwise are construed as an affirmative or promise; it shall
nevertheless not constitute a warranty that the goods will conform to the
affirmation or promise.
Agent’s
Authority Negated: No agent, employee, or
representative of Seller has authority to bind Seller to any affirmation,
representation, promise, or warranty concerning the equipment. Unless an
affirmation, representation, promise, or warranty is written out in this
document and signed by an officer of JM, Inc., it is not enforceable by
Buyer.
Merger
Clause:
This document
constitutes the entire agreement of all the terms, conditions, representation,
covenants and agreements of the Order between Buyer and Seller. This Order shall
not be varied, supplemented, qualified or interpreted by any prior course of
dealing between the parties or by any usage of trade.
Remedies
Limited:
Buyer and Seller
agree that the sale and exclusive remedies for breach of any warrant concerning
the equipment shall be repair or replacement of defective parts or, at Seller’s
option, refund of the purchase price. Seller shall not be held liable for injury
to any person caused by the equipment. Seller shall not be held liable for
injury to property other than the equipment itself.
Assignment of
Delegation:
No right or
interest in this Order may be assigned by either Buyer or Seller without the
written permission of the other party. Any attempted assignment or delegation
shall be wholly void and totally ineffective for all purposes unless made in
conformity with this paragraph.
Attorney’s
Fees:
Should any
litigation be commenced between the Buyer and Seller, or their representatives,
concerning any provision of this contract or rights and duties of any provision
of this contract or the rights and duties of any person or entity in relation
thereto, including actions to collect for any outstanding balance owed by Buyer,
the party prevailing in such litigation, whether by out-of-court settlement or
final judgment, shall in addition to such other relief as may be granted or
ordered, be entitled to recover reasonable attorney’s fees, costs and expenses
incurred in such litigation and any appeals in connection therewith. In
addition, any judgment or order entered in any final judgment, shall contain a
provision providing for the recovery of all costs and expenses of suit
including, without limitation, actual attorney’s fees, costs and expenses
incurred in connection with (i) enforcing, perfecting, and executing such
judgment; (ii) post-judgment motions; (iii) contempt proceedings; (iv)
garnishment, levee and debtor and/or third party examinations; (v) discovery;
and (vi) bankruptcy proceedings.
Governing
Law:
This Order has been
entered into the State of
Captions: The captions heading the various
sections of this Order are for convenience and shall not be considered to limit,
expand, or define the contents of the respective sections.
Severability: If any term, representation,
warranty, provision, covenant, or condition of this Agreement is held to be
invalid, void or unenforceable, the remainder of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired, or
invalided.
Construction: This Agreement shall be construed
according to its fair meaning and without regard to whether it was prepared or
drafted by one party or its attorney. The language used in this Agreement will
be deemed to be the language chosen by the parties hereto to express their
mutual intent. The parties agree that any ambiguity or uncertainty existing
herein shall not be construed by one party to the detriment of the other, nor
shall any rule of strict construction be applied against either party. In
addition, as to disclaimers set forth herein, Buyer waives the benefit of any
rule that disclaimers shall be construed against Seller, and Buyer agrees that
the disclaimers in this Order shall be construed liberally in favor of
Seller.
Late
Payments:
Payments not
received by the due date shall be subject to a finance charge of 1.5% per month
of the outstanding balance until paid in full.
Training
and Installation: If Buyer requests Sellers
installation and/or training regarding the equipment, Buyer shall pay Seller at
the rate of $99.00 per hour for the provision of such services. Travel
expenses, including mileage and parking, will be billed in
addition.
(1) All parts
are warranted for 90 days under normal use.
(2) All Labor
is warranted for 30 days after original service call date.
(3) All
service calls have a minimum Zone Charge.
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