Purchase Terms and Conditions
1. Entire Agreement
By purchasing products and/or services from SMART CHOICE MEDICAL USA, LLC its subsidiaries and/or affiliates, as may be applicable (collectively, “SCM USA”), you agree to be bound by and accept the terms and conditions contained herein (this “Agreement”). If you have signed a formal written agreement between you and SCM USA governing your purchases, that written agreement shall govern your purchases, including purchases from our secure website(s) (the “Ordering Site”), except as otherwise provided for in any such agreement. In the absence of such an agreement or in the event such agreement is silent as to a particular term or condition, the terms and conditions contained in this Agreement shall control and shall apply to all of your purchases, including, but not limited to, online purchases from our Ordering Site, and may NOT be altered, supplemented, or amended by you through the use of any other document(s). Any attempt to alter, supplement, or amend this Agreement, or to enter an order for product(s) which is (are) subject to additional or altered terms and conditions, will be null and void, unless otherwise agreed to in a written agreement signed by both you and SCM USA. This Agreement does not supersede, waive or otherwise affect any security agreements, guarantees, credit applications or other agreements between you and SCM USA, none of which may be amended except by a writing signed by each party. You acknowledge and agree that SCM USA reserves the right to amend these terms and conditions in its sole discretion as it sees fit from time to time.
Prices are subject to change by SCM USA without notice. Any additional costs incurred by SCM USA in connection with or arising out of the manufacture, sale or distribution of product, including, but not limited to, increases in labor, freight and materials cost before shipment of order and applicable overhead, may be invoiced to you and you agree to pay same. Premium time as required by you will be invoiced as an extra item. You will pay when due any sales, use, excise, gross receipts, or value-added taxes, or other federal, state, or local taxes or other surcharges or assessments (other than any tax based on the net income of SCM USA or imposed upon inventory held by SCM USA in its warehouses) that SCM USA is at any time obligated to pay or collect based on, or in any way levied on, the sale of products and/or services, or the products or any services related thereto. In addition, you will be obligated to pay all interest or penalties assessed by reason of your failure to comply with your obligations hereunder. If SCM USA pays any amounts which you are obligated to pay, then you will promptly reimburse SCM USA in an amount equal to the amount so paid by SCM USA.
3. Pricing Errors
Pricing errors may occur on quoted items and on the Ordering Site from time to time, on items sold by SCM USA, or items sold by third-party sellers. SCM USA attempts to correct all pricing errors promptly after discovery or after SCM USA receives notice of an error. SCM USA reserves the right to cancel any orders containing pricing errors, with no further obligations to you, even after your receipt of an order confirmation or shipping notice from SCM USA. Any payments you make to SCM USA for orders that are cancelled due to pricing errors will be refunded.
4. Payment Terms
All payments shall be made in full at time of purchase, in good funds, and in accordance with the payment terms on your invoice, via ACH direct debit or other payment forms acceptable to SCM USA. Until product is paid for in full, SCM USA retains, and you hereby grant to SCM USA, a security interest in the ordered product. SCM USA may assess a service charge calculated at the rate of 1.5% per month (or the maximum rate allowed by law, if such rate is less than 1.5% per month) on any amount not paid to SCM USA when due. Failure or delay by SCM USA to invoice you for any such service charge will not waive SCM USA’s right to receive the same. In the event of default in payments on any invoices, SCM USA shall have the right to declare all invoices immediately due and payable. You agree to pay all out-of-pocket expenses, including attorneys’ fees and costs, incurred by SCM USA to collect any amounts due from you or to otherwise enforce any of the terms stated herein. SCM USA (including its affiliates, subsidiaries, parent or related entities, individually or collectively) may exercise a right of set-off against any and all amounts due to you. SCM USA shall be deemed a single creditor for purposes of this section.
5. Shipment and Delivery
Orders are not binding upon SCM USA until accepted by SCM USA. SCM USA reserves the right to refuse service to anyone. SCM USA will indicate its acceptance of an order by issuing an invoice or by shipping the ordered product to you. All shipments are made F.O.B. SCM USA’s shipping point unless otherwise specified. In the absence of specific instructions, SCM USA selects the carrier. Title to products and risk of loss pass to you upon delivery thereof by SCM USA to the carrier or delivery service. You assume all risk of loss in shipping and all liability for loss or damages, whether direct, indirect, consequential, or otherwise, due to delays once the products have been delivered to the carrier.
SCM USA shall be excused from its obligations hereunder in whole or in part to the extent its performance is delayed or prevented by strikes, work stoppages or disputes, fires, floods, war (declared or undeclared), riots, loss or destruction of product, non-availability or delays of transportation, embargoes, accidents, delay or failure of SCM USA’s suppliers to make delivery of material, shortages of material or labor, restrictions, limitations, obligations, taxes, assessments, duty or fee imposed by any government or governmental authority, domestic or foreign, or any other cause beyond SCM USA’s control. In such circumstances SCM USA’s obligations hereunder shall be suspended for so long as any such contingency continues, and you agree to extend, and are deemed to extend, for a corresponding period, any letters of credit or trade acceptance opened by you in respect to such shipment or delivery, provided, however, that if any shipment or delivery hereunder shall be so prevented for more than ninety (90) days, either SCM USA or you shall have the right to cancel the contract, but only with respect to such shipment or delivery, by written notice to the other.
SCM USA may at any time, in its sole discretion, limit the amount of credit to be extended to you and cancel any order with respect to all or any undelivered product if SCM USA shall deem such action advisable for credit reasons. You hereby represent and warrant that you are solvent and agree that such representation and warranty shall be deemed repeated upon each order and/or delivery hereunder. You hereby represent and warrant that you are solvent and agree that such representation and warranty shall be deemed repeated upon each order and/or delivery hereunder.
8. Generic Substitutions
You hereby authorize SCM USA to substitute one generic manufacturer’s product for the equivalent product of another generic manufacturer without prior notice to you.
You agree that any products that are returned will be handled in accordance with, and shall be subject to, SCM USA’s applicable then-current Returned Goods Policy.
10. Use of Products
You warrant that you have all required governmental licenses, permits and approvals required to purchase, use and/or store the products you purchase from SCM USA and that all your purchases from SCM USA are for your “own use”, as such term is defined in judicial or legislative interpretation. SCM USA may immediately terminate your ability to make purchases if SCM USA determines that you or any facility owned, operated, or managed by you, directly or indirectly, has breached this “own use” limitation. You will comply with all laws, rules and regulations applicable to products purchased hereunder.
THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE, WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.
12. Limitation of Liability
IN NO EVENT SHALL SCM USA BE LIABLE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OR LOSSES OF ANY NATURE OR FOR LOST REVENUE, LOST PROFITS, OR LOST BUSINESS ARISING OUT OF YOUR PURCHASES FROM SCM USA, THE USE OF PRODUCTS, OR SCM USA’S FAILURE TO DELIVER ORDERED PRODUCTS. IN NO EVENT SHALL SCM USA’S LIABILITY FOR ANY ORDER OR PRODUCT UNDER THIS AGREEMENT EXCEED THE FEES ACTUALLY PAID BY YOU FOR SUCH ORDER OR PRODUCT. SCM USA’S SOLE OBLIGATION AND YOUR EXCLUSIVE REMEDY FOR BREACH HEREUNDER WILL BE, AT SCM USA’S OPTION, TO REPAIR OR REPLACE THE PRODUCT.
13. Discount Disclosure
If you receive any “discounts or other reductions in price” under Section 1128B(b)(3)(a) of the Social Security Act (42 U.S.C.1320- 7b(b)(3)(a)) from SCM USA, you may be required to disclose the discounts or reductions in price under any state or federal program which provides cost or charge-based reimbursement to you for the products or services you buy from SCM USA, or as otherwise requested or required by any governmental agency.
This Agreement and all communications, disputes, and performance-related hereto shall be governed by and construed according to the internal laws of the State of Ohio. No rights hereunder or arising out of these terms and conditions may be assigned by you without the express written consent of SCM USA. No waiver by SCM USA of any default or failure by SCM USA to enforce a right hereunder shall be deemed a waiver of any right or prior or subsequent default. You agree that all information on our Ordering Site, this Agreement, and your purchase terms, including, but not limited to, price, are confidential and may not be disclosed to third parties.