General Terms & Conditions
ISIKEL, LLC D/B/A ISIKEL MEDICAL SUPPLIES
GENERAL TERMS AND CONDITIONS OF SALE
(a) These Terms and Conditions of Sale (these “Terms”) are the only terms which govern the sale of the goods (“Goods”) by Isikel, LLC d/b/a Isikel Medical Supplies (“Seller”) to the customer named in the letter of commitment (“LOC”), purchase order, quote, confirmation of sale or invoice (in any case, the “Sales Confirmation”, and such customer, “Customer”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of such contract shall prevail to the extent they are inconsistent with these Terms.
(b) The Sales Confirmation and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. The Sales Confirmation shall take precedence over these Terms in the event of a conflict; and these Terms prevail over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms unless specifically agreed in writing by Seller. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
(a) The Goods will be delivered on or before the delivery date specified in the Sales Confirmation, and if no date is specified, then within a reasonable time after the receipt of Customer’s Sales Confirmation, subject to availability of the Goods. Seller shall not be liable for any delays, loss or damage in transit.
(b) Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods FOB Seller’s facility in Katy, Texas (the “Seller’s Facility” or the “Shipping Point”) using Seller’s standard methods for packaging such Goods. Customer shall arrange for shipment of the Goods within five business days of Seller’s written notice that the Goods have been delivered to the Shipping Point. Customer shall be responsible for all costs and expenses related to shipping and delivery to Customer’s location from the Shipping Point.
(c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Customer’s purchase order.
(a) The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Customer on delivery unless Customer can provide conclusive evidence proving the contrary.
(b) Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
If Seller delivers to Customer a quantity of Goods of up to 0.5% more or less than the quantity set forth in the Sales Confirmation, Customer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the Sales Confirmation adjusted pro rata.
5. Shipping Terms.
Delivery shall be made FOB at the Shipping Point, unless otherwise agreed that Seller shall make delivery in accordance with the terms on the face of the Sales Confirmation, at Customer’s sole cost and expense.
6. Title and Risk of Loss.
Title and risk of loss passes to Customer upon delivery of the Goods at the Shipping Point. As collateral security for the payment of the purchase price of the Goods, Customer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Texas Uniform Commercial Code.
7. Amendment and Modification; Cancellation.
These Terms may only be amended or modified in writing which specifically states that it amends these Terms and is signed by an authorized representative of each party. Cancellation of or change in any purchase order by Customer shall not be effective without notice received, agreed to, and confirmed in writing by Seller. In the event Seller in its discretion approves Customer’s cancellation of all or any part of a purchase order, Seller is entitled to charge to Customer (a) the sales price for Goods already delivered and (b) a sum equal to 15% of the total value of the purchase order to compensate any prejudice, additional costs and expenses resulting from the cancellation of the order.
8. Inspection and Rejection of Nonconforming Goods.
(a) Customer shall inspect the Goods within ten business days of receipt (“Inspection Period”). Customer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Customer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
(b) If Customer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Customer in connection therewith. Customer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s Facility. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Customer’s shipment of Nonconforming Goods, ship to Customer, at Customer’s expense and risk of loss, the replaced Goods to the Shipping Point.
(c) Customer acknowledges and agrees that the remedies set forth in Section 8(b) are Customer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 8(b) and Section 11, all sales of Goods to Customer are made on a one-way basis and Customer has no right to return Goods purchased under this Agreement to Seller.
(a) Customer shall purchase the Goods from Seller at the prices (the “Prices”) set forth in the Sales Confirmation, or if the Sales Confirmation does not so provide, in Seller’s valid and non-expired quoted price or the published price list in force as of the date that Seller accepts Customer’s purchase order.
(b) Except as otherwise specifically stated, all Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs and taxes; provided, that, Customer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
(c) Where any sale of Goods would be eligible for exemption from sales tax (or its equivalent), Seller shall apply such exemption. Customer shall promptly provide all information reasonably requested by Seller in connection with evidencing its eligibility for exemption, including written proof of export. If such information is not provided within 15 business days, Seller shall charge sale tax (or equivalent) in addition to the Price. Customer shall indemnify Seller and its affiliates against any liabilities, damages, losses and/or costs arising in connection with any failure by Customer to comply with its obligations under this clause and any sale (or equivalent) assessments relating to the sale of the Goods including, but not limited to, penalties and interest for late payment.
10. Payment Terms.
(a) Customer shall make any pre-payments for purchases of Goods prior to shipment of such Goods. With respect to Goods that are purchased on credit, payment shall be net 30 days from the date of the invoice, or as otherwise stated on the quote, purchase order, and/or invoice, in accordance therewith. Customer shall make all payments hereunder by wire transfer or ACH of immediately available funds to Seller’s specified account, or by check; all payments must be in US dollars.
(b) Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Customer fails to pay any amounts when due hereunder and such failure continues for 30 days following written notice thereof.
(c) Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
11. Limited Warranty.
(a) Seller does not manufacture or control any of the Goods. Accordingly, Seller does not provide any warranties with respect to the Goods. The Goods may carry a warranty extended by the respective supplier or manufacturer. If Customer discovers any warranty defects, Customer’s sole remedy is to contact the supplier or manufacturer directly, in accordance with the instructions included in the supplier or manufacturer’s warranty (which, if available, may be included with the Goods or on the respective supplier or manufacturer’s website), and may be subject to any limitations therein.
(b) SPECIFICALLY, AND WITHOUT LIMITING THE FOREGOING, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (iii) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
(c) CUSTOMER AFFIRMS THAT SELLER SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY BREACH OF WARRANTY CLAIMS OR FOR ANY DAMAGES ARISING OUT OF THE SUPPLIER OR MANUFACTURER’S FAILURE TO HONOR ITS WARRANTY OBLIGATIONS TO CUSTOMER.
12. Limitation of Liability.
(a) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER IN THE THREE-MONTH PERIOD PRECEDING THE DATE THAT THE CLAIM IS RECOGNIZED BY THE PARTY ASSERTING THE SAME.
(c) The limitation of liability set forth in Section 12(b) shall not apply to (i) liability resulting from the acting party’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from such acting party’s acts or omissions.
13. Customer’s Obligations.
(a) Customer shall ensure that the terms of the Sales Confirmation and any information it provides in relation to the Goods are complete and accurate.
(b) Customer will, and will procure that its employees, agents and subcontractors will, only use or apply the Goods for the purposes and in the manner expressly set out in the suppliers or manufacturer’s written instructions (including e-mail instructions) (if any) supplied to Customer in relation to the Goods (including any applicable Material Safety Data Sheets (“SDS”) or labelling information).
(c) Customer acknowledges that it is familiar with the Goods and is aware of the risks associated with handling, transporting, using, storing and disposing of the Goods, including those set out in the SDS and packaging. Customer further accepts its independent knowledge of such risks which are acknowledged and understood in Customer’s industry and assumes all risks and responsibility for the handling or use of the Goods in any way and in combination with other substances.
Each party agrees to indemnify, defend and hold harmless the other (including its officers, directors, managers, employees, and agents, collectively, the “Indemnified Parties”) from any and all liabilities, claims (founded or unfounded), losses, damages, costs and expenses (including without limitation reasonable attorney’s fees) for third-party claims of (a) personal injuries (including death) and (b) loss of, damage to, or destruction of personal property, in either case arising out of or in connection with, and to the extent of, such party’s performance under or breach of this Agreement.
15. Compliance with Law.
Each party shall comply with all applicable laws, regulations and ordinances, and maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Customer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Customer. Customer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (a) fails to pay any amount when due under this Agreement and such failure continues for 30 days after Customer’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
No waiver by either party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by the same. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
18. Force Majeure.
No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Customer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, explosion, or other disasters or catastrophes such as epidemics; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; and (f) national or regional emergency; and (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (h) shortage of adequate power or transportation facilities; and (i) other similarly impactful events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within ten business days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 90 consecutive days following written notice given by it under this Section, either party may thereafter terminate this Agreement upon ten business days’ written notice.
Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
20. Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
21. No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
22. Governing Law.
All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Texas.
23. Submission to Jurisdiction.
Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Texas in each case located in Houston, Harris County, Texas, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission, which confirmation may be automatically generated) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.