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    IHS TERMS & CONDITIONS OF SALE

    IHS TERMS & CONDITIONS OF SALE

     

    1. Acceptance. Orders from a customer (“Buyer”) are subject to acceptance by Innovative Health Solutions, Inc. (“Seller”). Acceptance by Buyer of any goods from Seller shall constitute acceptance of these Terms and Conditions of Sale (“Terms and Conditions”). The following conditions apply to all invoices issued to Seller by Buyer (“Invoice”) as an agreed part of the Agreement. No terms appearing in Buyer’s Invoice that are in variance with or contrary to these Terms and Conditions shall be binding upon Seller unless specifically agreed to in a writing signed by Seller.
    2. Sale. These Terms and Conditions of Sale (this “Agreement”) shall be a binding contract for the purchase and sale of the product (“Product”) as described in the Invoice. This Agreement consists of the Invoice and these Terms and Conditions. In the event the terms of the Invoice conflict with the Terms and Conditions, the Terms and Conditions shall govern.
    3. Acceptance. Orders may not be cancelled after shipment, and delivered Products may not be returned unless they are defective. Buyer shall be deemed to have accepted the Product and agreed that the Product is free from defects in materials and workmanship and conforms in all material respects to Seller’s technical specifications on the date of delivery for the Product.
    4. Inspection and Returns. Buyer shall inspect each Product prior to using the product and shall give written notice to Seller of any error or claim that the Product is defect and return such defective Product to the Seller. Upon receipt of the defective Product, Seller shall replace the defective Product and ship it to Buyer together with Buyer’s next order of Product. If the Buyer shall fail to give such notice the goods shall be deemed to comply in all respects with the contract and the Buyer shall be bound to accept and pay for the same accordingly.
    5. Prices and Payment. Payment in full is due prior to Seller’s shipment of the Product. Due to manufacturers’ price increases or decreases or other events outside of Seller’s reasonable control, pricing is subject to change without prior notification. Seller shall have the right, among other remedies, either to terminate this agreement or to suspend further performance under this in the event Buyer fails to make any payment when due.
    6. Taxes and Other Charges. Buyer shall pay all taxes, fees, duty, levy, or charges imposed by any governmental authority. Applicable sales taxes will be invoiced unless Buyer supplies a valid tax-exempt certificate prior to delivery.
    7. Delivery and Claims. Seller will use its reasonable commercial efforts to deliver Products on or before the estimated delivery date, but shall not be liable in damages or otherwise for failure to do so, regardless of the cause. For all purposes of this Agreement, title and risk of loss shall pass to Buyer, and delivery shall be deemed completed, upon Seller’s tender of the Product to a common carrier. All shipments are fully insured for the benefit, and at the expense, of Buyer. In the event of loss or damage in transit, Buyer’s payment obligations will not be affected and Seller will act as Buyer’s agent in making any necessary insurance claim. All delivery dates are approximate. Seller will deliver in one shipment when possible, but reserves the right to make delivery in installments, if necessary.
    8. Warranty. Seller makes no warranty with respect to the Product. The only warranty applicable to the Product is the warranty provided by the manufacturer with respect to the Product, as stated in any warranty accompanying the Product.
    9. EXCLUSIONS. NO REPRESENTATION OR WARRANTY SHALL ARISE FROM ANY DESCRIPTION OF, OR CLAIMS REGARDING, THE PRODUCT OR
      ITS EFFECTIVENESS OR ABILITY TO ACHIEVE ANY PARTICULAR CLINICAL RESULT(S), WHETHER WRITTEN OR ORAL, CONTAINED
      IN SPECIFICATIONS, SAMPLES, BULLETINS, MARKETING OR PROMOTIONAL MATERIALS OR SIMILAR STATEMENTS MADE OR
      FURNISHED TO BUYER BY ANY PERSON. USE OF THE PRODUCT REQUIRES THE EXERCISE OF SOUND MEDICAL JUDGMENT,
      AND CLINICAL RESULTS MAY VARY BASED ON OPERATOR SKILL AND EXPERIENCE, PATIENT SUITABILITY, PATIENT RESPONSE
      TO TREATMENT, AND OTHER FACTORS BEYOND THE CONTROL OF SELLER. SELLER MAKES NO REPRESENTATION OR WARRANTY
      OF REVENUE OR PROFITS FROM USE OF THE PRODUCT, AND NO SUCH REPRESENTATION OR WARRANTY SHALL ARISE FROM
      PROJECTIONS, STUDIES, ILLUSTRATIONS, MARKETING OR PROMOTIONAL MATERIALS, OR OTHER STATEMENTS OR MATERIALS
      MADE OR FURNISHED TO BUYER BY ANY PERSON.
    10. WARRANTY DISCLAIMER. SELLER MAKES NO WARRANTIES OR REPRESENTATIONS CONCERNING THE SERVICES OR ANY RESULTS TO BE ACHIEVED
      THROUGH USE OF THE SERVICES. SELLER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES
      OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL IMPLIED WARRANTIES ARISING FROM A COURSE
      OF DEALING, USAGE, OR TRADE PRACTICE.
      IN NO EVENT SHALL SELLER BE LIABLE FOR LOSS OF USE, LOSS OF PROFITS,
      PUNITIVE DAMAGES, ATTORNEY’S FEES AND EXPENSES, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, OR ANY OTHER
      DIRECT OR INDIRECT DAMAGES WHATSOEVER.
    11. LIMITATION OF LIABILITY. SELLER WILL NOT BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL,
      INDIRECT OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUE, LOSS OF DATA, TECHNOLOGY,
      RIGHTS OR SERVICES, INTERRUPTION OF BUSINESS, OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES),
      EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT, OR OTHER
      THEORY
      SELLER’S LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO DIRECT DAMAGES. THESE LIMITATIONS ARE AN ESSENTIAL BASIS
      OF THE PARTIES’ AGREEMENT.
    12. Sales records. Buyer agrees to keep comprehensive records on the Product delivered. They must contain adequate information to allow a complete and fast withdrawal of the medical products from the market. The buyer must store all records for at least 10 years from the date of delivery of the Product.
    13. Recall. Buyer is obliged to provide its sales records to Seller and the manufacturer of the Product if there is a recall. These records must contain the device’s serial number, Buyer’s name and address and the date the device was set up.
    14. Proprietary Rights. The purchase and sale of the Product hereunder to Buyer shall in no way be deemed to confer upon Buyer any right, interest or license in any patents, patent applications, designs, copyrights, trademarks, service marks, trade names or other intellectual property rights Seller may have covering the Product. Seller hereby reserves all such rights. Buyer warrants that it will not, and will not permit or assist any other person or entity to, divulge, disclose, or in any way distribute or make use of such intellectual property, and that it will not, and will not engage, permit or assist any other person or entity to, modify, reverse engineer or manufacture any such products.
    15. Financing and Assignment. This Agreement binds Buyer, regardless of any financing arrangements, subrogations or assumptions. Buyer may not assign its rights or delegate its obligations hereunder except with the prior written consent of Seller (which consent may be withheld in its sole discretion).
    16. Entire Agreement; Amendments. This Agreement constitutes the entire agreement among Seller and Buyer and supersedes all prior or contemporaneous promotional material, contracts, agreements, statements, promises, representations, warranties, purchase orders or quotations, whether written or oral. The Invoice and these Terms and Conditions may not be amended, altered or modified except in writing by an authorized
      signatory of Seller. No other purported additions, amendments, alterations or modifications by Buyer or any other person, whether
      oral or written, shall be binding on Seller, regardless of Seller’s failure to object or Seller’s shipment of products. In the event of a
      conflict between these Terms and Conditions and any other part of this Agreement, these Terms and Conditions shall govern.
    17. Governing Law; Jurisdiction and Venue; Time Limit. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO
      THE LAWS OF THE STATE OF INDIANA, EXCLUSIVE OF CONFLICTS OF LAW PROVISIONS THAT WOULD PERMIT OR REQUIRE THE
      APPLICATION OF THE LAWS OF A DIFFERENT JURISDICTION. BUYER AGREES THAT ANY ACTION FOR ENFORCEMENT OF
      THIS AGREEMENT OR ANY OTHER DISPUTE ARISING HEREUNDER SHALL BE FILED EXCLUSIVELY IN COURTS OR BEFORE
      ARBITRATORS SITTING IN RIPLEY COUNTY, INDIANA, AND BUYER HEREBY CONSENTS AND WAIVES ANY OBJECTION TO THE
      JURISDICTION AND VENUE OF SUCH COURTS AND ARBITRATORS. ANY ACTION HEREUNDER FOR BREACH OF WARRANTY OR
      CONTRACT MUST BE COMMENCED NOT LATER THAN ONE YEAR FROM THE DATE ON WHICH SUCH ACTION ACCRUES OR BE
      FOREVER BARRED.
    18. Arbitration. Seller or Buyer may require that any claim or dispute arising out of or related to this Agreement, including but not limited to those based on or arising from any alleged injury related to the products sold hereunder (collectively, the "Claims"), be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the "AAA"), conducted by three (3) arbitrators sitting in Ripley County, Indiana. If any party institutes any judicial proceeding relating to any Claim, that action shall not be a waiver of the right of any party to require submission of such Claims to arbitration.

    19. Force Majeure. Neither party will be liable for failure to perform its obligations hereunder (other than payment obligations) if such performance is prevented, hindered or delayed by reason of any cause or causes beyond its reasonable control, including without limitation any act of God, war or other violence, civil disturbance, strike, work stoppage, or other labor difficulties, transportation contingency, accident, failure of its suppliers to perform their contractual obligations, power failure, law, regulation or ordinance, or act or order of any governmental agency or authority.

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    21. Severability. If any provision of this Agreement is held to be unenforceable for any reason, it will be modified rather than voided, if possible, in order to achieve the intent of the parties to the extent possible. Any provision held overbroad as written will be deemed amended to narrow its application to the extent necessary to make the provision enforceable under applicable law, and enforced as amended. All other provisions of this Agreement will be deemed valid and enforceable to the full extent.

       

       

       

    Innovative Health Solutions © 2014

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