Terms and Conditions of Sale
The terms and conditions contained herein constitute the sole and entire agreement between the parties and are the only basis upon which PENTAX Medical (“PENTAX”) offers to sell goods to Buyer, unless otherwise agreed to in writing signed by a duly authorized representative of PENTAX. Buyer’s terms and conditions shall be of no effect to the extent they are inconsistent with or in addition to these terms and conditions, and notwithstanding anything to the contrary in Buyer’s purchase order, by paying this invoice Buyer accepts all of PENTAX’s terms and conditions set forth herein.
PAYMENT AND CREDIT TERMS
Standard payment terms are 1% 10, net 30 days, subject to credit approval. Otherwise terms are cash in advance. PENTAX reserves the right to revoke credit terms extended to Buyer in the event (i) Buyer fails to pay for any goods or services, previously or subsequently delivered or performed, when due, or (ii) in the sole judgment of PENTAX there has been a material adverse change in Buyer’s financial condition. Upon such determination, PENTAX shall have the right to demand payment or other assurances which it deems adequate before shipment or performance of any other goods or services. Where destination is outside the United States, terms of payment are cash in advance, by wire transfer. All payments shall be in legal currency of the United States.
TAXES AND OTHER CHARGES
In addition to the purchase price, Buyer shall pay all applicable taxes, and similar charges imposed by governmental entities, whether federal, state or local.
DELINQUENCY, FAILURE TO PAY; SECURITY INTEREST
Should Buyer become delinquent in the payment of any sum due PENTAX, PENTAX shall not be obligated to continue performance under any agreement with Buyer. In addition, Buyer shall pay PENTAX a delinquency charge on all amounts payable to PENTAX pursuant hereto which are past due at a rate equal to 10% per annum. The imposition of such delinquency charge does not imply or constitute an agreement to forbear collection of such delinquent account. Buyer shall reimburse PENTAX for all collection costs, including reasonable court costs and attorneys’ fees, incurred by PENTAX in collecting any amount past due hereunder.
Buyer hereby grants, and PENTAX hereby reserves, a purchase money security interest in products purchased pursuant hereto, and any proceeds thereof, for the amount of its purchase price.
SHIPMENT AND DELAYS
PENTAX shall ship in accordance with PENTAX’s standard practices, unless otherwise agreed to in writing between the parties. All shipments are, unless otherwise specifically provided, F.O.B. PENTAX’s facility. Shipment of any products purchased is subject to availability. PENTAX shall make reasonable efforts to meet requested delivery date(s). However, PENTAX will not be liable for any failure to meet any such date or dates. Once an order is accepted, shipment dates may not be changed by Buyer without PENTAX’s express prior written consent. All claims for breakage and damage should be made directly to the carrier, however, PENTAX will assist in securing satisfactory payment or adjustment of such claim, PENTAX shall not be liable for any delay in delivery of goods or performance of services due to causes beyond the reasonable control of PENTAX.
INSPECTION, ACCEPTANCE AND RETURNS
This shipment has been carefully inspected by trained PENTAX personnel prior to transit and should be thoroughly inspected upon receipt. Failure to reject any delivery upon receipt shall constitute acceptance of that delivery and shall be deemed a waiver of any other right to reject or revoke acceptance. All claims arising from over, short, defective or damaged goods shall be made within ten (14) days of receipt and should reference the original purchase order. PENTAX may in its discretion require payment of a restocking fee as a condition to authorizing a return. Credit cannot be allowed for merchandise returned without prior written authorization. All original containers and packing materials must be returned with a shipment to insure proper credit. Credit and/or replacement will be given against Buyer’s account; no cash refunds will be made.
LIMITED WARRANTIES AND REPAIR
PENTAX warrants to the Buyer all Products sold by PENTAX to be free of defects in material and workmanship for one (1) year from the date of shipment from PENTAX. PENTAX ’s warranty hereunder shall not apply if: (i) any repairs, alterations or other work has been performed by Buyer or others on such item, other than work performed with PENTAX’s authorization and according to its approved procedures; or (ii) the alleged defect is a result of abuse, misuse, improper maintenance, accident or the negligence of any party other than PENTAX. The warranty set forth herein is conditioned upon proper storage, installation, use and maintenance in accordance with applicable recommendations of PENTAX. The warranty furnished hereunder does not extend to damage to items purchased hereunder resulting in whole or in part from the use of components, accessories, parts or supplies not furnished by PENTAX.
PENTAX’s sole obligation under this warranty shall be to repair or replace, at PENTAX’s sole option, any defective component or item and pay transportation expenses for such replacement at no charge to Buyer. PENTAX shall provide any required labor for the removal of the defective component or item and installation of its replacement at no charge to Buyer. Buyer shall bear all risk of loss or damage to returned goods while in transit. In the event no defect or breach of warranty is discovered by PENTAX upon receipt of any returned item, the item will be returned to Buyer at Buyer’s expense, and Buyer will reimburse PENTAX for the transportation charges, labor and associated charges incurred in testing the allegedly defective item.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, PENTAX MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY GOODS, PARTS AND SERVICE PROVIDED BY PENTAX INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY IS LIMITED TO THE REMEDIES PROVIDED IN THE PARAGRAPH ABOVE.
PENTAX SHALL NOT IN ANY EVENT BE LIABLE FOR ANY MONETARY DAMAGES OR OTHER COSTS ASSOCIATED WITH THE REPLACEMENT OR REPAIR OF PRODUCTS, INCLUDING LABOR, INSTALLATION OR OTHER COSTS INCURRED BY CUSTOMER AND, IN PARTICULAR ANY COSTS RELATING TO THE REMOVAL OR REPLACEMENT OF ANY PRODUCT IN ANY PRINTED CIRCUIT BOARD, MODULE OR SYSTEM. PENTAX SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH FURNISHING OF GOODS, PARTS OR SERVICE HEREUNDER, OR THE PERFORMANCE, USE OF, OR INABILITY TO USE ANY GOODS, PARTS OR SERVICE, OR OTHERWISE, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY.
To exercise this warranty, Buyer must contact PENTAX’s Sales Department promptly, but no later than ten days preceding expiration of the warranty period, to obtain a return material authorization (RMA). No product will be accepted for return without a RMA. The repair of a product by PENTAX pursuant to this warranty is warranted for the balance of the original warranty period, or at least 90 days from date of shipment to Buyer of the repaired product.
DELAY, CANCELLATION OR DEFAULT
If Buyer requires PENTAX to delay delivery, payment for the product and the Buyer’s required inspection shall not thereby be postponed or extended. Product held for Buyer shall be at the risk and expense of Buyer. Orders may be canceled or delayed only upon (i) written notice received by PENTAX prior to ninety days before the originally scheduled delivery date for such order, and (ii) payment to PENTAX of reasonable and proper cancellation or delay charges.
CHOICE OF LAW AND JURISDICTION; COURTS
This transaction is deemed to have been made in New Jersey and shall be construed in accordance with the laws of the State of New Jersey, without reference to the conflict of laws rules thereof. All controversies, disputes and claims arising out of or relating to this transaction, or the breach or threatened breach of this document, shall be adjudicated by a court of competent jurisdiction within the State of New Jersey, except that any judgment obtained in such action may be enforced in other jurisdictions. Buyer hereby waives personal service of process provided that process is served by certified, registered mail. Buyer hereby waives any objection that it may have regarding the personal jurisdiction or venue of any of the aforesaid courts, as well as any claim that the forum or venue is inconvenient or should be transferred. Buyer agrees to pay any and all reasonable costs, legal fees, and expenses incurred by PENTAX resulting from all controversies, disputes or claims which are adjudicated or settled favorable to PENTAX.
EXPORT OF PENTAX PRODUCTS
Unless otherwise expressly agreed to by PENTAX, Buyer assumes sole responsibility for obtaining all required export authorizations for products purchased hereunder and exported from the U.S. Buyer shall not export or re-export technical data supplied by PENTAX, or any products subject to this quotation or otherwise delivered by PENTAX to Buyer, in violation of any U.S. Government law or regulation, or any other applicable export regulations.
The export from the United States of certain PENTAX products and technology to certain countries is specifically prohibited by the Export Administration Act of 1979, as amended. The export of all PENTAX products and technology must be in accordance with the applicable provisions of the United States Export Administration Regulations and the Export Regulations of the United States Department of Defense.
The transactions referenced herein (including the value of any discounts or other price concessions) is intended to reflect “a discount or other reduction in price” for purposes of the federal Anti-Kickback Statute (“AKS”) discount exception (42 U.S.C. §1320a-7b(b)(3)(A)) and the AKS discount safe harbor (42 C.F.R. § 1001.952(h)). Pursuant to the AKS discount safe harbor, customer is required by law to fully and accurately disclose the discounts, premiums, credits or other value received from PENTAX Medical in cost reports or claims submitted for reimbursement to Medicare, Medicaid, or other health care programs requiring such disclosure, and to provide such documentation to the Secretary of the Department of Health and Human Services and state agencies upon request. PENTAX Medical will provide the value of any discounts or other price concessions to you so that you can comply with your obligation to properly disclose and appropriately reflect the same on applicable cost reports or in charges to federal health care programs in accordance with the AKS.