US Dry Needling and Physio Products, LLC Terms and Conditions of Sale These Terms and Conditions of Sale which include all exhibits and other attachments attached hereto (the “Agreement”), govern the sale of any Products sold by US Dry Needling and Physio Products, LLC. (“Seller”) and any customer placing said order, whether via email, fax, mail, phone, or the Seller’s Website (“Buyer”).
1. Entire Agreement and Amendment. This Agreement supersedes all prior written and oral agreements, quotes, commitments, purchase orders, acknowledgements, understandings and representations between the Buyer and the Seller. Any additional terms or conditions (preprinted or otherwise) proposed by Buyer shall not become a part of this Agreement. Terms or conditions contained in Buyer’s purchase order or other form containing terms and conditions shall have no force or effect. No provision of this Agreement shall be waived, amended, modified, superseded, canceled, terminated, renewed or extended except in a written document signed by an authorized representative from both Parties. Any waiver is limited to the particular instance and for the particular purpose when and for which it is given.
2. Quotations & Prices. Quotes furnished by Seller may be changed or withdrawn by Seller at any time prior to written acceptance by Buyer. Clerical or typographical errors are subject to correction. Quoted prices and delivery dates are subject to product availability and receipt of prior orders, and prices are valid only for the quantities, terms and payment schedule specified. All prices are subject to change at any time without notice. Prices do not include, unless specifically quoted, any applicable sales, use, excise, value added, property, similar taxes or duties; costs for shipping, freight, transportation, inspection, and insurance; and any itemized delivery, expediting, installation, special packaging, or service charges, all of which, if paid or provided by Seller, will be added to the applicable invoice and paid by Buyer in addition to the product price.
3. Tax Exempt. If Buyer asserts that any transaction is tax exempt, Buyer shall provide to Seller an exemption certificate acceptable to the applicable taxing authority. Buyer acknowledges its responsibility for reporting the dollar value of any discounts or price reductions in any costs claimed or charges made to Medicare, Medicaid, and any other U.S. or foreign federal, state, or local program providing reimbursement to Buyer.
4. Acceptance and Cancellation of Orders. Orders for products must be presented in writing or via electronic means acceptable to Seller, and will be considered accepted only by written or electronic confirmation or by shipment of the products ordered. Seller reserves the right, at its option and without liability, to refuse any order, in whole or in part, or to specify an alternate delivery schedule if orders from all sources exceed Seller’s inventory or ability to deliver. Seller may allocate available inventory and production in its sole discretion. Accepted orders may be cancelled by Buyer only if written notice is provided to Seller prior to shipment of any part thereof. Seller's performance is subject to approval of Buyer's credit, and Seller, with reasonable cause, may cancel any order placed by Buyer or refuse or delay the shipment thereof if Buyer fails to meet any of its obligations as provided herein.
5. Payment. For orders placed online, Buyers agree to pay at the time the order is placed. For any order that is invoiced, Buyer agrees to pay invoices Net thirty (30) days from the invoice date. Seller will charge interest on all amounts not paid by the due date, at twelve percent per annum. Prices for Products exclude all insurance, freight, federal, state and local taxes, fees, and other governmental assessments, all of which shall be paid by Buyer directly or, if paid by Seller, shall be paid by Buyer to Seller within thirty (30) days of invoice of the same delivered by Seller to Buyer.
6. Delivery and Delays. Seller will endeavor to deliver accepted orders promptly; The parties understand that the dates indicated for shipment, delivery or performance represent Seller’s best current estimates only and failure to perform within such dates will not subject Seller to liability. Some examples of reasons for a delay include, but are not limited to, shortage of product, labor difficulties, floods, fires, actions taken or threatened by any governmental agencies, acts of God or other contingencies or acts not within the sole control of Seller. In the event of a shortage of product, Seller reserves the right: a. during the period of any shortage to allocate its available supplies it may determine equitable without any liability to Buyer, and b. to make substitutions and modifications in the specification of any Product, provided such substitutions or modifications do not materially affect the performance of Products.
7. Shipment. Shipment shall be scheduled upon receipt by Seller of this Agreement, or if required by Buyer, upon acceptance of Buyer’s purchase order. All Products may be shipped to any destination in the United States and will be arranged by the Seller. The Buyer will be responsible for all shipment costs regardless of any provisions for payments of freight or insurance, or selection of carrier by Seller, or the form of shipping documents. If a product is damaged during shipment, the Buyer must inform the Seller immediately to request a refund or replacement of the items. The Seller may require evidence of the damage, or may require the Buyer to return the items to the Seller before issuing any replacement products or refund of the purchase price.
8. Returns. The Seller may elect, in its sole discretion, accept a return for a refund for any Product. Before any product is returned, the Buyer must notify the Seller of its request for a return and explain the reasons for the refund. Any product or invoice may include a different return policy. All returns are subject to a 15 percent restocking fee.
9. Warranty and Limitation of Liability. The seller makes no representation or warranty of any kind whatsoever, express or implied on the product. Seller specifically disclaims all implied warranties of merchantability and fitness for a particular purpose, title and non-infringement whether arising from a statute or otherwise in law, equity or from a course of dealing or usage of trade. In no event shall seller be liable to Buyer or any third party for special, incidental, consequential, exemplary, punitive, multiple or other indirect damages, or for loss of profits, loss of data or loss of use damages, arising out of the product(s), sale, or supply of the product(s) or its use or disposition, even if seller has been advised of the possibility of such damages or losses. Seller’s liability arising out of the manufacture, sale or supply of the product(s) or its use or disposition, whether based upon warranty, contract, tort or otherwise, will not exceed the actual purchase price paid by Buyer for the product.
10. Choice of Law and Enforcement. Any disputes arising in connection with this Agreement will be governed by and construed in accordance with the laws of the of the State of Washington, excluding its conflicts of laws principles and excluding the United Nations Convention on Contracts for the International Sale of Goods. The parties acknowledge that the courts within the State of Washington will have the sole and exclusive jurisdiction over any disputes under this Agreement.
11. Bankruptcy. Except as may be prohibited by applicable bankruptcy laws, in the event of any insolvency or inability to pay debts as they become due by a party hereto, or voluntary or involuntary bankruptcy proceeding by or against a party hereto, or appointment of a receiver or assignee for the benefit of creditors, the other party may elect to cancel any unfulfilled obligations hereunder.
12. Notices. Any required notices will be given in writing to Seller at and to Buyer at the address or email address as evidenced on the face of the applicable Sales Order Form or provided on the website, or to such other address as either party may substitute by written notice to the other party.
13. Assignability, Waiver and Severability. Buyer may not assign any interest in an accepted order without the prior written consent of Seller. Subject to the foregoing, the rights and obligations herein will be binding upon the successors and assigns of both Seller and Buyer. Seller’s failure to exercise any of its rights will not constitute or be deemed a waiver or forfeiture of any rights hereunder. If any of these provisions are held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired.
14. Compliance with Laws. Seller and Buyer agree to comply with all federal and state laws that govern the enforceability and performance of this Agreement.
15. Representations and Warranties of the Buyer. In the event that the Product sold by the Seller is a prescription or legend medical device, the Buyer will represents and warrants to the Seller that the Buyer is either: a. a practitioner licensed by the State in which they reside or practice to use or dispense the Product purchased and they have provided their license number or registration number to the Company; or b. A medical facility, clinic, pharmacy, or hospital that is authorized to purchase and/or dispense the Product for the use of practitioners authorized by State Law to use the Product.
16. Confidential Information and HIPAA Compliance. Both parties agree to hold in strict confidence the terms of this Agreement and all information provided by a party (the “disclosing party”) to the other party (the “receiving party”) in connection with the performance of their respective obligations under this Agreement that is either marked or identified as the confidential information of the disclosing party, or which, by its nature, the receiving party would reasonably deem to be confidential, including the Software, financial information and pricing information (“Confidential Information”), except to the extent that disclosure is required by applicable law. Either party may disclose the terms of this Agreement and/or Confidential Information of a disclosing party to its employees, professional advisors, agents or independent contractors that are providing services for such party, require the knowledge of such terms or Confidential Information, and are subject to applicable confidentiality obligations or non-disclosure agreements. The receiving party agrees not to use any Confidential Information of the disclosing party for any purpose except in the performance of its obligations hereunder or as otherwise permitted hereunder. The foregoing restrictions on disclosure shall not apply with respect to any information which: a. was or becomes generally known or publicly available through no act or failure to act of the receiving party; b. is known by the receiving party without restrictions on disclosure at the time of receiving such information; c. is rightfully furnished to the receiving party without restrictions on disclosure by a third party without a breach of such third party’s obligations of confidentiality; or d. is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party. Both parties agree to comply with the applicable provisions of the Administrative Simplification section of the Health Insurance Portability and Accountability Act of 1996, as codified at 42 U.S.C. Section 1320d through d-8, as amended from time to time (“HIPAA”). Seller agrees that should it inadvertently gain access to Protected Health Information (“PHI”) during any interaction with Buyer, it will keep the PHI confidential in accordance with the Agreement.
17. Acceptance and Counterparts. This Agreement will be deemed accepted by placing an order for Product either by fax, mail, phone, or online. Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of such together shall constitute one and the same instrument.
18. Use Restrictions & Requirements. Buyer is responsible for obtaining all permits or licenses and meeting all applicable codes, regulations, recommendations and requirements of competent health, pertaining to the products, their use (it being understood that Seller makes no warranty of any kind regarding compliance with such requirements). Buyer may not (a) alter, copy, adapt, develop, modify, reverse engineer, disassemble, create derivative works from, or make any changes to any products or materials provided by Seller, including but not limited to packaging, labels, and instructions for use, or permit any distributor, agent, representative, or end-user to do so, without prior written consent from Seller; (b) import, export, sell, transfer, service, store, or otherwise handle, distribute or use any product or documentation in any manner prohibited by applicable laws and regulations, or (c) make any representations or warranties on behalf of Seller as to the quality, merchantability, fitness for a particular use, or other features of the products. Buyer acknowledges and agrees that the products are subject to trade compliance and other laws and regulations, and agrees to comply with all applicable laws, regulations and governmental requirements in connection with the purchase, shipment and/or delivery of products from or into any jurisdiction, including payment of all applicable taxes or duties, obtaining all required governmental permits, licenses and approvals, and compliance with all requirements necessary to use and/or conduct medical device sales of products in any jurisdiction, including any use, distribution, or sale thereof as a component of any Buyer or third party products.
19. Bodily Injury. With respect to bodily injury liability to third parties, each party will be responsible in such proportion as reflects its relative fault for damages arising from or in any way related to the use or operation of any Seller product; provided, however, that Seller will have no responsibility whatsoever for, and, unless prohibited by applicable law, Buyer will defend, indemnify, and hold harmless Seller from and against all losses, liabilities, damages or injuries caused by or arising out of the use, operation, storage, or service of any product in violation of these Terms and Conditions or negligence of the Buyer. This Section states each party’s entire liability for bodily injury.
20. Limitation of Claims. No claims, regardless of form, arising out of or in any way connected with the transactions, products, or services to which these Terms and Conditions apply may be brought by Buyer more than one year after the cause of action has accrued or performance hereunder has been completed or terminated, whichever is earlier. In no event may a claim exceed the value of the individual order for a Product which serves as the basis for the claim.
21. Indemnification. Unless prohibited by applicable law, Buyer agrees to indemnify and hold Seller harmless from all liabilities, claims, losses, damages, and expenses (including without limitation reasonable attorneys’ fees and expenses) arising out of Buyer’s breach of these terms and conditions.
22. Miscellaneous. Seller's rights and remedies herein are cumulative and in addition to all other rights and remedies available at law or in equity. Failure to enforce any provision of these Terms and Conditions will not be construed as a waiver of such provision or any other provision nor of the right to enforce such provisions. The invalidity, in whole or in part, of any provision hereof will not affect the remaining provisions. Any waiver or renunciation of a claim or right arising out of breach must be in writing and signed by the injured party. These Terms and Conditions will remain in effect for a period of six (6) years following completion of the transactions to which these Terms and Conditions apply.
Version: April 17, 2015