- 1. Offer and Acceptance. This Quotation of Acknowledgement is an offer (the “Offer”) by Hyperbaricstore.com (“HBS”) to sell the goods or services referenced in the Agreement (the “Products”) to Customer. Customer may accept this Offer orally, in writing or by performance, but Customer’s acceptance, regardless of form, shall not alter these terms and conditions (“Terms”). If customer objects to any of these Terms, Customer must set forth each objection in a separate writing signed and dated by Customer and delivered to HBS prior to or at the same time as the Customer’s purchase order or other forms of acceptance. Customer’s issuance of a push case order which purports to reject some or all of these Terms by virtue of standard form language shall not be sufficient objection. Any objections to which HBS does not agree in writing shall be deemed rejected and shall not become a part of the parties’ agreement. HBS’s failure to object to provisions in any purchase order, or other communication from Customer (including, without limitation, penalty clauses of any kind), shall not be a waver of these Terms, nor an acceptance by HBS of any such provisions. Any terms in Customer’s purchaser order or any other document of acceptance which are different from or additional to these Terms are hereby rejected unless specifically accepted by HBS in a separate document signed by both Customer and authorized HBS representative, regardless of whether such other terms would materially alter these Terms. No course of dealing, customer or usage, which is contrary to these Terms shall apply. HBS may correct any typographical or clerical errors in prices, specifications, quotations, or acknowledgements.
2. Prices. Product prices are subject to change without notice. Prices are quoted in US dollars and are FOB point of shipment. Prices do not include freight or delivery charges, taxes (sales, excise, use, ad valorem, etc.), or any export or import duties unless otherwise noted on the Agreement. Those charges may be prepaid by HBS and added to Customer’s invoice.
3. Financial Condition. At HBS’s request, customer will furnish sufficient information to enable HBS to assess Customer’s creditworthiness. HBS may, in it’s discretion, require full or partial payment in advance.
4. Payments. Title and Security Interest. All payments shall be made in US dollars. All payments shall be without deductions for back-charges, other accounts between HBS and Customer, and the like, which shall be settled independently of the payment of the invoice. Payment shall not prejudice claims on account of omissions or shortages in shipment, but no such claim will be allowed unless made in writing within 96 hours after receipt of the applicable shipment by Customers. Payments shall be due 30 days from the date of the HBS invoice. Should Customer delay payment beyond the date due, HBS may charge interest on the unpaid balance at the rate of 1.5% per month. Although risk of loss passes to Customer upon shipment, title shall not pass to Customer and HBS shall have a security interested in all Products and proceeds thereof until HBS receives payment in full. Customer authorizes HBS to file any and all financing statements and other documents required to perfect HBS’s security interest.
5. Shipment. HBS shall select the method and carrier for delivery of all Products. Risk of loss or damage to the Products shall pass from HBS to Customer upon delivery to a career at point of shipment. Any shipment, delivery or performance date stated in the Offer or other contract document is approximate only and does not constitute any guarantee of shipment, delivery or performance on any particular date. Time shall not be of the essence of this agreement.
6. Cancellation and Returns. Acceptance of HBS’s Offer shall be binding on the parties. Cancellation will be accepted only upon HBS’s written consent, together with payment to HBS of a restocking fee equal to 25% of the purchase price. Within 48 hours of receipt of Products, Customer may notify HBS of any Products that are defective or that do not conform to contractual specifications. HBS may then authorize the Products and, if HBS agrees that the Products are defective, authorize Customer to return the Products. Upon receipt of an authorized return of defective Products, HBS will, at its options, repair or replace the defective Products, or provide a full refund of the purchase prices.
7. Delays. HBS shall not be liable for loss, damages, or non-performance resulting from delays in receipt of final specifications or instructions from Customer changes in specifications, events of force majeure, or other cases that are beyond HBS’s reasonable control. In the event of such a delay, the delivery date shall be extended for a period equal to the time lost by reason of the delay. HBS shall notify Customer of any significant delay and will specify the revised delivery date as soon as practical. If shipment is delayed by Customer, Customer shall arrange for and notify HBS of the place or places to which HBS shall ship the products for warehousing or storage at Customer’s expense and all risk of loss or damage to the Products shall be borne by Customer. If Customer is unwilling or unable to promptly arrange for warehousing or storage facility, HBS may do so at Customer’s expense.
8. Hyperbaricstore.com Warranty and Customer Remedies. HBS warrants that the Products will be free from materials defects in material and workmanship as specified by the manufacturer for a period of 30 days from the date of Customer’s receipt under normal working conditions.
HBS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND HBS EXPRESSLY DISCLAIMS ANY WARRANTY OR MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ALL OTHER WARRANTIES, INCLUDING ANY WARRANTIES WITH RESPECT TO INTELLECTUAL PROPERTY, ARE HEREBY EXPRESSLY EXCLUDED. Customer’s sole and exclusive remedy of breach of warranty or contract shall be the repair or replacement of defective Products, or, at HBS’s options, a refund of the purchase price; provided (1) the Product has not been altered or modified by anyone other than HBS, (2) it has been properly stored, installed, maintained and operated, and (3) Customer promptly notifies HBS of any defect. Defective Products replaced by HBS shall become the property of HBS. Repaired or replacement Products will be shipped to the Customer FOB point of shipment. HBS is not responsible for any charges relating to warranty work that have not been authorized by HBS in writing. If HBS, without separate compensation therefore, furnishes Customer with advice or other assistance concerning Product or any system or equipment in which any such Product may be installed, the furnishing of such advice or assistance will not be subject UBS to any liability whether in contract, tort (including negligence and strict liability) or otherwise.
9. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL HBS BE LIABLE TO CUSTOMER FOR INCIDENTAL SPECIAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF USE ARISING DIRECTLY OR INDIRECTLY FROM ANY BREACH OF WARRANTY, BREACH OF CONTRACT, MATERIALS OR OTHERWISE, OR FROM ANY ACTS OR OMISSIONS OF HBS’S EMPLOYEES OR AGENTS, TORTIOUS OR OTHERWISE. IN NO EVENT SHALL HBS’S LIABILITY FOR ANY CLAIM BROUGHT BY CUSTOMER EXCEED THE PRICE OF THE DEFECTIVE PRODUCT.
10. Notices. Any notice required or contemplated by this Purchase Order shall be writing and shall be delivered personally or sent by telefax or by prepaid registered mail. Notice by telefax shall be deemed to have been received when transmitted and any notice sent by registered mail shall be deemed to have been received on the second day following the day mailed.
11. Miscellaneous. Customer may not assign any rights arising of the parties’ business relationship or any HBS duty without HBS’s prior written consent. Invalidity of any provision of these Terms shall not affect the validity of any other provision and any invalid provision shall be severed from the valid provisions. No failure by HBS to exercise any right accruing to it by virtue of the parties’ relationship or under any contract entered into with Customer shall operate as a waiver thereof or preclude the exercise of any other right or privilege by HBS. There are no other terms and conditions applicable to the sale of the Products other than those contained in these Terms. No modification, amendment, waiver or other change of any provision of HBS’s Terms shall be binding on HBS without HBS’s written consent.
12. Customer Warranty. Customer acknowledges that the equipment provided is regulated by the FDA, and that hyperbaric treatments may be performed only for medical purposes by certified technologists. Customer represents and warrants that hyperbaric treatments using equipment purchases from HBS will be performed only by a health professional for medical treatment purposes. Customer further represents and warrants that any medical equipment purchases from HBS is not intended for personal or household use. Customer will defend and indemnify HBS for any claims asserted against HBS as a result of the breach of this warranty.
13. Governing Law, Venue. These Terms and the parties’ relationship shall be governed by North Carolina state law, as if the relationship arose in and was to be performed entirely within the state. The exclusive venue and jurisdiction for the resolution between the parties shall be the state or federal courts for Raleigh, North Carolina. Any action for a breach of contract or other claim arising out of parties’ business relationship must be commenced within one year after the cause of action has accrued.
14. Disclosure of Information. Any information, suggestions or ideas given by the Customer to HBS in connection with HBS’s performance hereunder are not secret or submitted in confidence, except as may be otherwise agreed in a separate writing signed by HBS.
15. Attorneys’ Fees. In any action to enforce its rights arising out of the parties’ business relationship, HBS shall be entitled to recover all costs incurred in connection with this action, including, without limitation, attorneys’ fees and all other litigation costs.