1. Contract. Each sale of Midmark products and services ("Products") and the acceptance of any purchase order submitted by a purchaser of Products ("Purchaser") is expressly made conditional on Purchaser's assent to these Terms and Conditions of Sale (“Agreement”), and Midmark agrees to furnish the Products only upon the terms and conditions of this Agreement. Any additional, different, or conflicting terms and conditions set forth in any documents issued by a Purchaser at any time, including without limitation any purchase orders and any specifications are hereby objected to by Midmark, shall be wholly inapplicable to any sale of Products and shall not be binding in any way on Midmark. No waiver or amendment to the terms and conditions of this Agreement shall be binding on Midmark unless made in a writing expressly stating that it is such a waiver or amendment and signed by Midmark.
2. Payment. Midmark may, but is not obligated to, sell Products to a Purchaser on credit. In the event that Midmark sells Products on credit, then: (a) payment in full shall be due and payable thirty (30) days from the date of invoice; (b) in the event Purchaser fails to pay Midmark the purchase price within thirty (30) days of the date of invoice, Purchaser shall pay Midmark interest on such delinquent payment at one and one-half percent (1.5%) per month, compounded monthly, or the highest rate permitted by law. Purchaser shall pay all collection expenses, including but not limited to attorney's fees, incurred by Midmark in the collection of amounts owed by Purchaser.
3. Limited Warranty. Each Product sold by Midmark is accompanied by one of the following limited warranties, unless otherwise specified by Midmark (click on applicable limited warranty):
THE APPLICABLE WARRANTY ABOVE IS MIDMARK'S ONLY WARRANTY AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. MIDMARK DISCLAIMS ALL IMPLIED WARRANTIES OF ANY KIND, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
THE EXCLUSIVE REMEDIES UNDER THE APPLICABLE WARRANTY ARE REPAIR OR REPLACEMENT OF DEFECTIVE PARTS. THE APPLICABLE WARRANTY AND THE REMEDIES SPECIFIED HEREIN ARE THE SOLE REMEDIES OF PURCHASER, WHETHER UNDER THEORIES OF BREACH OF CONTRACT, BREACH OF
WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY.
4. Delivery and Acceptance. Midmark will make reasonable efforts to notify Purchaser of the anticipated delivery date of the Products. Purchaser shall be on site upon delivery and shall be responsible for unloading the Products. If within forty-eight (48) hours of delivery Purchaser has not provided Midmark an itemized written notice of an objection to the condition of the Products, Purchaser shall be deemed to have accepted the Products as satisfactory in all respects.
5. No Damages for Delay. Although Midmark will attempt to meet shipment and delivery schedules, Midmark will not be liable to Purchaser for any damages resulting from late shipment or delivery, including but not limited to direct, indirect, economic, incidental, or consequential damages, including without limitation lost profits or income, loss of use, downtime, cover, and employee or independent contractor wages, payments, and benefits.
6. Transportation Expenses. All transportation expenses shall be paid by Purchaser. Purchaser shall be responsible for making all in-transit damage claims to the shipper or carrier.
7. Risk of Loss. The risk of loss, theft, destruction, or damage to the Products shall pass to Purchaser F.O.B. Midmark’s applicable manufacturing facility.
8. Taxes. The purchase price does not include sales, use, excise, or similar taxes. Consequently, in addition to the purchase price for Products, the amount of any present or future sales, use, excise, or other tax applicable to the sale or use of the Products sold hereunder shall be paid by Purchaser, or in lieu thereof, Purchaser shall provide Midmark with a tax-exemption certificate acceptable to the taxing authorities. Purchaser shall indemnify, defend, and hold Midmark harmless from all such taxes.
9. Limitation of Liability. Midmark's liability for any claim of any kind, including negligence and breach of warranty, for any loss or damage resulting from, arising out of, or relating to the manufacture, sale, delivery, resale, repair, or use of the Products shall in no case exceed the purchase price for the Products which give rise to the claim.
10. Force Majeure. Midmark shall not be liable for any actions or failure to act due to causes beyond its reasonable control, or due to acts of God, acts of Purchaser, acts of civil or military authority, priorities, fires, strikes, floods, epidemics, quarantine restrictions, war, riots, delays in transportation, car shortages, and inability due to causes beyond its reasonable control to obtain necessary labor, materials, or processing facilities.
11. Security Interest. Midmark retains a security interest in the Products to secure all obligations owed by Purchaser to Midmark. Purchaser authorizes Midmark to file Uniform Commercial Code financing statements and to take such other actions as Midmark determines to be appropriate to perfect its security interest. Failure to make any payment as provided herein or any other amounts due Midmark from Purchaser, or any other credit concerns of Midmark, shall entitle Midmark to cease and stop shipments without notice to Purchaser, and Purchaser consents that Midmark, its successors and assigns, shall be and are hereby authorized to retake possession and custody of any shipments already made and/or received by Purchaser and upon written notice to Purchaser, cancel the balance and/or unexecuted portion of this Agreement and hold Purchaser liable for any and all damages incurred as a result of or in any manner growing out of the default or failure to so pay on the part of Purchaser.
12. Termination, Reduction in Quantity, Rescheduling Delivery. In the event Purchaser desires to terminate any part or all of its purchase order, reduce the quantity of the Products ordered, or reschedule the delivery, fair compensation shall be made to Midmark which shall take into account, among other things, expenses incurred and commitments already made by Midmark, reasonable costs and expenses incurred by Midmark in making settlement hereunder, the increased costs incurred by Midmark by reason of a revision in the delivery schedule, and in the case of termination or reduction in the quantity of Purchaser’s purchase order, the profit reasonably anticipated by Midmark. Unless in a writing duly executed by Midmark, no revisions or amendments to the agreement of the parties described in Section 12 or 13 hereunder shall affect any rights of Midmark under this agreement or applicable law.
13. RETURN OF MERCHANDISE –
(A) RETURN OF ITEMS OTHER THAN DIAGNOSTIC PRODUCTS – Authorization must be obtained for the return of any item. If return is authorized, transportation charges must be prepaid. Risk of loss with respect to returned goods shall remain with the purchaser until receipt by Midmark. Items returned for credit are subject to a charge of 25% or more to cover inspection, damage in transit, reconditioning and repacking. Items may be returned within six (6) months (except Service Parts within ninety (90) days) from the original ship date if it is in its original packaging, unused and unopen. Return merchandise authorization number (RMA #) should be written on the outside of the packaging.
(B) RETURN OF DIAGNOSTIC PRODUCTS – Authorization must be obtained for the return of any item. If return is authorized, transportation charges must be prepaid. Risk of loss with respect to returned goods shall remain with purchaser until receipt by Midmark. Items returned for credit are subject to a charge of 25% to cover inspection, damage in transit, reconditioning and repacking. Items may be returned within thirty (30) days (except Service Parts within ninety (90) days) from the original ship date if it is in its original packaging, unused and unopened. Return merchandise authorization number (RMA #) should be written on the outside of the packaging.
(C) NON-REFUNDABLE ITEMS – Certain items are not eligible for return or refund, including but not limited to: software, consumables (e.g. electrodes, prep kits, pneumotach mouthpieces, temperature probe covers, nose clips, thermal paper), all disposable items, specials, Synthesis® cabinetry, Care Exchange® workstations, discontinued items or parts, items with custom or non-standard colors, and items purchased at a price of less than $50 USD.
14. Remedies. In the event of Purchaser's default under these Terms and Conditions of Sale or in the performance of any purchase order, Midmark shall have available all rights and remedies at law or in equity. Purchaser agrees to pay Midmark all costs and expenses, including attorney's fees, incurred by Midmark in exercising any of its rights and remedies. No failure on the part of Midmark to exercise and no delay in exercising any right or remedy shall operate as a waiver thereof. No waiver by Midmark of any default shall constitute a waiver by Midmark of any additional or subsequent default.
15. Entire Agreement. All agreements and understandings of any character heretofore made between Midmark and Purchaser are embodied herein, and no changes shall be made hereto unless the same shall be in writing and duly signed by an authorized representative of both Midmark and Purchaser. No terms or provisions contained in any purchase order submitted by Purchaser shall apply.
16. Severability. In the event any provision of these Terms and Conditions of Sale is held or determined by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions hereof shall remain in full force and effect.
17. Arbitration. Midmark may, at its discretion, settle any claim or controversy arising out of or relating to any purchase order, or the breach of non-performance of any provision hereof, by arbitration in accordance with the Arbitration Rules of the American Arbitration Association in effect at the time such claim or controversy arises. Purchaser and Midmark agree that any arbitration shall be administered and conducted at Dayton, Ohio.
18. Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with the internal laws of the State of Ohio without reference to its conflict of laws provisions. Purchaser hereby submits to the exclusive jurisdiction of courts of competent jurisdiction in Darke County, Ohio with respect to any claim or controversy arising out of or relating to this Agreement, or the breach of non-performance of any provision hereof. The United Nations Convention for the International Sale of Goods shall not be applicable to this Agreement.