This website is operated by MyHealthcareKit LLC. Throughout the site, the terms “we”, “us” and “our” refer to MyHealthcareKit LLC. MyHealthcareKit LLC offers this website, including all information, tools and services available from this site to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here.
By visiting our site and/ or purchasing something from us, you engage in our “Service” and agree to be bound by the following terms and conditions (“Terms and Conditions”, “Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms and Conditions apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content.
Please read these Terms and Conditions carefully before accessing or using our website. By accessing or using any part of the site, you agree to be bound by these Terms and Conditions. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any services. If these Terms and Conditions are considered an offer, acceptance is expressly limited to these Terms and Conditions.
Any new features or tools which are added to the current store shall also be subject to the Terms and Conditions. You can review the most current version of the Terms and Conditions at any time on this page. We reserve the right to update, change or replace any part of these Terms and Conditions by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.
Online Store Terms
By agreeing to these Terms and Conditions, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this site.
You may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).
You must not transmit any worms or viruses or any code of a destructive nature.
A breach or violation of any of the Terms will result in an immediate termination of your Services.
We reserve the right to refuse service to anyone for any reason at any time.
You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the website through which the service is provided, without express written permission by us.
The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.
Accuracy, Completeness And Timeliness Of Information
We are not responsible if information made available on this site is not accurate, complete or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk.
This site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on our site. You agree that it is your responsibility to monitor changes to our site.
Modifications To The Service And Prices
Prices for our products are subject to change without notice.
We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time.
We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service.
Products Or Services
Certain products or services may be available exclusively online through the website. These products or services may have limited quantities and are subject to return or exchange only according to our Return Policy.
We have made every effort to display as accurately as possible the colors and images of our products that appear at the store. We cannot guarantee that your computer monitor’s display of any color will be accurate.
We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at anytime without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited.
We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Service will be corrected.
Accuracy Of Billing And Account Information
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
For more detail, please review our Returns Policy.
We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.
You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.
Any use by you of optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
We may also, in the future, offer new services and/or features through the website (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms and Conditions.
Certain content, products and services available via our Service may include materials from third-parties.
Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.
User Comments, Feedback And Other Submissions
If, at our request, you send certain specific submissions (for example contest entries) or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, ‘comments’), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.
We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms and Conditions.
You agree that your comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related website. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third-party.
Errors, Inaccuracies And Omissions
Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.
In addition to other prohibitions as set forth in the Terms and Conditions, you are prohibited from using the site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.
We do not guarantee, represent or warrant that your use of our service will be uninterrupted, timely, secure or error-free.
We do not warrant that the results that may be obtained from the use of the service will be accurate or reliable.
You agree that from time to time we may remove the service for indefinite periods of time or cancel the service at any time, without notice to you.
You can review the most current version of the Terms and Conditions at any time at this page.
Changes To Terms and Conditions
We reserve the right, at our sole discretion, to update, change or replace any part of these Terms and Conditions by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to our website or the Service following the posting of any changes to these Terms and Conditions constitutes acceptance of those changes.
Questions about the Terms and Conditions should be sent to us at email@example.com.
Terms and Conditions of Sale
The following terms and conditions form part of each sale by MyHelahtcareKit LLC, hereinafter called “Seller,” for the sale of products or services (collectively the “Contract Goods”) to a Client/Customer, hereafter called “Buyer”, and constitutes the sole contract terms and conditions (“Contract”) made by and between the parties. Any provisions or conditions of Buyer’s order which are in any way inconsistent with, or in addition to these Contract terms and conditions shall not be binding on Seller, and shall not be applicable, except with Seller’s express written acceptance. No changes in, modifications of, or additions to this Contract shall be binding on Seller unless in writing and signed by a representative of Seller duly authorized for that purpose. This Contract shall be construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania without giving effect to the choice or conflict of law provisions or rules thereof. The parties agree that any action arising out of or relating to this Contract, shall be brought only in the Court of Common Pleas of Montgomery County, Pennsylvania, or the United States District Court for the Eastern Division of Pennsylvania, and hereby consent to venue in such courts.
Warranty – Seller warrants to Buyer that the Contract Goods manufactured by it is free from defects in material and workmanship under normal use and service for a period of ninety (90) days after shipment or sixty (60) days after initial use, whichever occurs first. All auxiliary products or supplies not manufactured by Seller carries such warranty as given by the manufacturer thereof and which is hereby assigned to Buyer without recourse to Seller. Seller’s warranty for consumables shall be pro-rated over the applicable aforementioned period.
Terms – Upon discovery of defects in Contract Goods materials or workmanship during such ninety (90) days after shipment or sixty (60) days after initial use as described above, Seller shall either repair or replace the Contract Goods, on the condition that the conditions set forth immediately below are met. Even if Seller repairs or replaces the Contract Goods, its original warranty term is not extended. Seller’s obligation under this warranty is, at Seller’s sole option, to a one-time repair or replacement of any part of the Contract Goods which is shown to Seller’s reasonable satisfaction to have been defective as to material, workmanship or design, provided that:
- written notice of such defect is given to Seller within five (5) calendar days of discovery thereof;
- the Contract Goods have been used in accordance with the purpose for which they were sold and used in conformance with instructions provided by Seller;
- no alterations or substitutions have been made in the Contract Goods;
- Seller may require the return of the purported defective material to establish any claim or make repairs but in no event shall the Contract Goods be returned without Seller’s consent. All returned Contract Goods must be free from any potentially hazardous materials;
- no payment or allowances will be made for repairs or alterations in the Contract Goods unless Seller’s prior written approval has been obtained. All shipping and handling costs shall be to Buyer’s account; and
- Seller shall not be required to honor any warranty obligation until such time as it shall have been paid in full by Buyer.
Seller shall defend at its expense any suit or proceeding brought against Buyer based on any claim that the Contract Goods manufactured by Seller, except for material manufactured and/or designed to Buyer’s specifications, infringes any United States patent issued as of the date of purchase provided Buyer gives to Seller immediate notice in writing of the institution of the suit or proceedings and permits Seller, through its counsel, to defend the same and gives Seller all needed information, assistance and authority to enable Seller to do so. On any component materials or supplies manufactured by others, Seller shall pass through any patent indemnity offered by said manufacturer. Seller’s liability shall be limited to rendering reasonable assistance to Buyer to enforce said indemnity, which term shall not be deemed to include the payment of any fees or expenses of Buyer’s legal counsel or to require Seller to institute suit or to participate in any such litigation.
IMPLIED WARRANTIES AND DISCLAIMER
THE WARRANTIES FURNISHED BY SELLER AS EXPRESSLY INCLUDED HEREIN CONSTITUTE SELLER’S SOLE OBLIGATION UNDER THIS CONTRACT AND ARE IN LIEU OF ANY OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EVEN IN THE EVENT OF A FUNDAMENTAL BREACH BY SELLER.
DISCLAIMER OF WARRANTIES
SELLER SHALL NOT BE LIABLE TO BUYER OR BUYER’S CUSTOMER FOR INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, LIQUIDATED OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF CONTRACT GOODS, COSTS OF REPLACEMENT OF CONTRACT GOODS, ADDITIONAL EXPENSES INCURRED IN THE USE OF CONTRACT GOODS, OR THE CLAIMS OF THIRD PARTIES, EVEN IF SELLER HAS BEEN ADVISED OF POSSIBILITY OF SUCH DAMAGES. THIS DISCLAIMER SHALL APPLY TO INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, LIQUIDATED OR CONSEQUENTIAL DAMAGES BASED UPON ANY CAUSE OF ACTION WHATSOEVER ASSERTED AGAINST SELLER, INCLUDING ONE ARISING OUT OF PRINCIPLES OF CONTRACT, ANY BREACH OF WARRANTY, EXPRESSED OR IMPLIED, GUARANTEE, OR OTHER CONTRACT GOODS LIABILITY, NEGLIGENCE, TORT, OR ANY OTHER CAUSE PERTAINING TO PERFORMANCE OR NON-PERFORMANCE OF THE CONTRACT BY SELLER. BUYER SHALL HOLD SELLER HARMLESS FROM ANY SUCH CLAIMS BY BUYER’S CUSTOMER.
If upon receipt of the Contract Goods by Buyer, the same shall not conform to Buyer’s order, Buyer shall notify Seller in writing within five (5) days from receipt of the Contract Goods and before any part of the Contract Goods has been changed from its original condition. Such notification shall provide detailed information as to the nonconformity or shortage and Buyer shall hold the Contract Goods for Seller’s disposition and afford Seller a reasonable opportunity to inspect the Contract Goods. Seller may, at its option, replace without charge, refund the purchase price, or make a fair allowance for defects or shortages demonstrated to Seller’s satisfaction to have existed at the time of delivery. Seller may require the return of the Contract Goods to establish any claim but in no event shall Contract Goods be returned without Seller’s consent.
LIMITATION OF LIABILITY OF SELLER
Buyer expressly agrees that Buyer’s use of, or inability to use, the product is at Buyer’s sole risk, and that no guidance, medical or otherwise, has been provided to Buyer by Seller. In addition to the other limitations on Seller’s liability provided for herein, in no event will Seller’s liability to Buyer for any and all claims, including property damage, personal injury or death, claims allegedly resulting from breach of contract, warranty, indemnification obligation, strict liability, tort, or any other theory of liability involving this Contract, exceed the amount of the purchase price paid to Seller. Further, in no case shall Seller, its directors, officers, employees, affiliates, agents, contractors, interns, manufacturers, suppliers, service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, liquidated, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from Buyer’s use of any of the service or any products procured using the service, or for any other claim related in any way to Buyer’s use of the service or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the service or any content, or product, including any content posted, transmitted, or otherwise made available via the service or product, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.
Prices are F.O.B. point of shipment. Oral and written quotations are subject to acceptance within thirty (30) days from date. Any excise, sales, use taxes or other taxes imposed by Federal, State, or municipal authority and incurred by Seller applicable to the material sold, shall be to Buyer’s account and are in addition to the prices quoted, unless Buyer provides Seller with a proper tax-exemption certificate. Buyer hereby agrees to indemnify, defend and hold harmless Seller from any taxes, fines, penalties and costs, including attorneys’ fees, incurred or paid by Seller arising out of any such claim of exemption. This defense and indemnity requirement shall survive this Contract and any releases resulting from same.
As security for the payment in full for the Contract Goods, as a condition of the passage of title to Buyer for the Contract Goods as provided for in this Contract, Buyer grants to Seller a first priority security interest in the Contract Goods, wherever located, together with all Accounts, Products and Proceeds of any and all of the Contract Goods (as such terms are defined by the Uniform Commercial Code as from time to time in effect in any applicable jurisdiction). Upon default in payment by Buyer, Seller may exercise all rights of a Secured Party as provided for by the Uniform Commercial Code.
Terms of payment are ten (10) days NET from date of invoice, no discounts, unless otherwise specified. Seller may invoice on an installment basis where the Contract Goods are so delivered. For late payment, Buyer is subject to a late charge of eighteen percent (18%) of the unpaid fees per annum (1.5% per month) or the maximum allowed by law, whichever is less. If Seller does not receive payment in full for the Contract Goods and any monies otherwise due by the due date then Seller may, at its option at any time while the whole or any part of the monies due remain outstanding, take possession of the Contract Goods, or any part, delay or stop future deliveries, and terminate this Contract, in which case Seller is entitled to recover any loss, including loss of profit, which loss will carry interest under paragraph 2 of this Section. Pro rata retainage fees or backcharges will not be accepted by Seller. Buyer will be responsible for all expenses incurred from any collection proceedings.
Delivery dates are estimated by Seller on the basis of the best available information and cannot be guaranteed. Where Contract Goods are delivered in multiple deliveries, Seller may deem each delivery to be a separate contract, and no default or failure by Seller in respect of any one or more installments shall vitiate any contracts with respect to Contract Goods previously delivered or undelivered. Waiver by Seller of a breach of any of these Contract terms and conditions shall not be construed as a waiver of any other breach.
Seller shall not be liable for any loss or damage arising out of delay in shipment or delivery, or failure to manufacture, or failure of Contract Goods to operate, due to causes beyond its reasonable control, such as but not limited to, Acts of God, Acts of Buyer, Acts of Civil or Military Authority, priorities, fires, strikes, floods, pandemics, epidemics, quarantine restrictions, war, riot, delays in transportation, car shortages, and Seller’s inability to obtain necessary labor, materials, supplies or manufacturing facilities. In the event of any such delay, the date of delivery shall be extended for a period equal to the time lost by reason of the delay and Seller shall be entitled to an equitable adjustment in the sales price for increased costs incurred. All risk of loss or damage to Contract Goods furnished under this Contract shall pass to Buyer, F.O.B. point of shipment. Seller reserves the right to ship all or any part of the Contract Goods from any shipping point of any of its sources of supply other than the shipping point (if one is specified). Shipment will be made by the method or carrier deemed most feasible by Seller unless otherwise requested in writing by Buyer. Waiver by Seller of a breach of any of these Contract terms and conditions shall not be construed as a waiver of any other breach.
Cancellation of order by Buyer, or any part thereof, will not be effective unless accepted by Seller in writing. Accepted cancellation will be subject to a charge to cover all costs incurred to the date of acceptance, plus reasonable cancellation costs, plus profit on the completed work.
Waiver by Seller of a breach of any of these Contract terms and conditions shall not be construed as a waiver of any other breach. If either party breaches any of its obligations under this Contract in any material respect and the breach is not substantially cured within the cure period specified below, then the other party may terminate the order, without penalty, by giving written notice to the breaching party. With respect to Buyer’s payment obligations, the cure period shall be five (5) days. With respect to Seller’s completion of (a) manufacture and/or (b) shipment/delivery timeframes, the cure period shall be fifteen (15) days. With respect to all other obligations, unless otherwise specified, the cure period shall be thirty (30) days after receipt of written notice describing the breach, provided that, if a longer period is reasonably required to cure the breach and the cure is promptly begun, such cure period shall be extended for as long as the cure is being diligently prosecuted to completion.
This Contract states the entire understanding between the parties with respect to its subject matter, and supersedes all prior proposals, negotiations and other written or oral communications between the parties with respect to its subject matter.
Non-stock Contract Goods made specifically to order are not subject to return for credit. Any portion of non-stock Contract Goods in process of manufacture is not subject to cancellation. Any charges after manufacture has started could necessitate additional charges for work done and material consumed. Quotations are merely negotiations to trade and not offers to contract. Seller reserves the right to correct any factory, engineering, clerical and/or stenographic errors or omissions. Changes in design are made at Seller’s discretion. Seller has no obligation to incorporate these changes in units manufactured prior to the change. A determination that any term of this Contract is invalid or unenforceable shall not affect the other terms hereof. For any notice to Seller as set forth in this Contract, such notice shall be sent to firstname.lastname@example.org. For notice to Buyer, notice shall be sent to Buyer’s billing address.
Terms and Conditions of Purchase
General. MyHealthcareKit LLC’s purchase order (“Order”), together with the agreements, specifications or other documents noted therein, if any (“Additional Documents”) and including these terms and conditions (the foregoing Order, Additional Documents and all of these terms and conditions of purchase are collectively referred to herein as the “Contract”), constitutes the COMPLETE AND FINAL AGREEMENT of MyHealthcareKit LLC (“Buyer”) and the vendor or seller to whom Buyer’s Order is addressed (“Seller”) and may not be added to, modified, superseded or altered except by written agreement or modification signed by Buyer’s authorized representative, notwithstanding any additional or other proposals or terms and conditions which may now or in the future appear on Seller invoices, quotations, acknowledgment or other forms (notification of objection thereto being given hereby), and notwithstanding any acceptance of shipments, payments or other similar acts of Buyer. Any shipment, delivery or other tender of performance of Seller shall be taken as Seller’s assent to and acceptance of the Contract. In the event of any conflict between these Contract terms and any of the Additional Documents, if any, these Contract terms shall control.
Performance. Buyer shall have the right at any time to change its Order as to specifications, delivery, packaging or means of shipments. Seller’s receipt of Buyer’s notice of change without response received from Buyer or shipment or other performance reflecting the change by Buyer within ten (10) days, whichever occurs first, shall be Seller acceptance of the change without any price or other adjustment to the applicable Order. Seller shall make no change in the goods or any material, services or labor covered by any Order (all, whether or not physical property or goods, the “Goods”), whether by change in or departure from specifications, by change in design, manufacture, process, machinery, dies and molds, standard or method, or by change in material or composition, whether any such change is at the initiative of Seller or its supplier, without Buyer prior written consent. Time and quantity are the essence of any Order. Unless otherwise specified, delivery times specified are the times of delivery of the Goods at Buyer designated place of delivery or destination. Seller will pack, mail, label and ship all Goods in an appropriate and suitable manner selected by Seller which will ensure the lowest transportation cost for which Buyer is responsible, if any, in the absence of specific instructions contained herein. Buyer’s count of the Goods received will be final as to all shipments not accompanied by packing list. Seller will inform Buyer immediately of any occurrence which will or is expected to result in any delivery at any time or in any quantity not specified in the Order and also of corrective measures which Seller has taken to minimize the effect of such occurrence. In the event any such deviation result in an adverse effect to Buyer, Buyer may terminate the affected and any other outstanding Order without liability to Seller. Seller may not assign any Order or payment of any sums due thereunder. To the extent that, in connection with the Goods or otherwise, Seller employees, associates, consultants, agents or other representatives (“Seller Agents”) are on or present at any premises of Buyer, Seller shall be and is responsible for the acts and omissions of Seller Agents within or about Buyer premises and agrees to defend, indemnify and hold Buyer harmless from and against all liability for any claims or damages to property or injuries or death to persons arising out of acts or omissions of Seller Agents at Buyer premises, including without limitation (1) the failure of any of Seller Agents to comply with all applicable rules and regulations (Buyer and otherwise) governing security, maintenance and safety at or about Buyer premises, (2) any claim against Buyer by or on behalf of any of Seller Agents for injury or otherwise, or (3) any claim against Buyer resulting from Seller failure to maintain workers compensation or other public or private insurance with respect to any of Seller Agents. Seller hereby agrees to defend, indemnify and hold Buyer harmless from and against any and all threatened or actual actions, claims or proceedings, howsoever arising, whether sounding in tort, contract, warranty or otherwise, and all costs and expenses (including without limitation court costs and reasonable attorney’s fees, whether or not suit is commenced), arising out of or relating to: (a) the Goods; (b) Seller performance of any Order; (c) Seller breach of any term, provision, covenant, representation, warranty or obligation set forth in the Order or this Contract; (d) any claim asserted against Buyer alleging that Buyer use or sale of the Goods infringes any third party rights in or to any intellectual property (including any trade name, trademark, trade secret, copyright and/or patent); and (e) any claim asserted against Buyer by any third party alleging unfair competition by reason of Buyer use or sale of the Goods. Buyer liability on any claim of any kind for loss or damage arising out of or in connection with or resulting from any Order or from the performance or breach thereof, shall in no case exceed the price allocated to the Goods which gives rise to the claim. In no event shall the Buyer be liable for any cover damages, loss of profits, indirect, incidental, punitive, liquidated, special or consequential damages, howsoever arising, even if the other party has been advised of the possibility of such damage.
Seller Warranties. Seller warrants that the Goods, including material and work, furnished under any Order shall be of the highest grade and quality unless otherwise specified by Buyer in writing; shall not be less than merchantable and fit for the particular purpose(s) known by or disclosed to Seller as applicable thereto; shall meet specifications, drawings, or standards agreed upon or samples submitted or approved by Buyer; and shall conform to the Order and any Additional Documents. Seller warrants that the Goods will comply with all applicable federal and state laws and will be in compliance with all standards and agreements incorporated and made a part of all Orders. Payment by Buyer shall not constitute an acceptance of Goods or a waiver of any rights of Buyer under this Contract. In the event that any Goods are not in compliance with any state or federal law or regulation or not in compliance with any agreement or standard incorporated in this Contract, now existing or hereafter enacted or amended, or are otherwise defective, Buyer may (without limitation or exclusion of any other right of Buyer) return the defective Goods to Seller, who will refund and return to Buyer its cost plus freight to Buyer warehouse or facility and freight for return to Seller or (at Buyer option) repair or correct or replace the defective Goods at Seller cost and expense.
Prices, Taxes, Transportation, Payment. All prices shall be F.O.B. place of delivery (destination), unless otherwise specified herein; inclusive of applicable taxes, excises, duties, quotation fees or any other governmental impositions on or related to the production, sale or transportation of the Goods, except as only otherwise specified herein; in compliance with any ceiling or other limitation of price established by any governmental authority; and subject to increase only with prior written consent of Buyer. The risk of loss and the duty to insure all Goods shall remain with Seller until the Goods are delivered to Buyer designated place of delivery. To the extent that any Goods under any Order are subject to sales tax, Seller shall be responsible for remitting such tax to the applicable taxing jurisdiction. In furtherance of the foregoing, Seller shall not include any allowance or amount for sales tax payments in calculating any payments due under any Order. Buyer and Seller will cooperate upon request in obtaining and furnishing such certificates or other evidence of inapplicability of or exemption from any sales, excise or other taxes to which either of the parties may be entitled. Unless otherwise specified in any Order, the price of the Goods shall be payable net sixty (60) days from the date of the Buyer acceptance of the Goods for which payment is to be made.
Force Majeure. Either Buyer or Seller may suspend performance during the occurrence of an excusable delay, which shall mean and include any delay not occasioned by the fault or negligence of the delayed party and which results from the acts of God or public enemy, restrictions, prohibitions, priorities or allocations imposed by governmental authority, embargoes, acts of terrorism, floods, fires, typhoons, earthquakes, pandemics, epidemics, unusually severe weather, delays of similar nature or governmental causes, and strikes or labor disputes (of or involving the delayed party employees only). Excusable delays do not include lockout, shortage of labor, lack of or inability to obtain raw materials, fuel or supplies or any other industrial disturbance. Nothing contained in this paragraph shall limit Buyer rights hereunder in any way, except that, in the event of Seller excusable delay, Seller shall not be liable for Buyer incidental or consequential damages resulting from that delay.
Advertising. Without Buyer prior written consent, Seller shall not advertise or publish in any manner that Seller has contracted to, or has furnished Goods to Buyer.
Termination. Buyer may at any time prior to delivery of the Goods terminate any Order in whole or in part by written notice, whereupon Seller shall terminate work pursuant to the terms of such notice and without any further liability of Buyer or Seller. If Goods ordered under any Order are made specifically for Buyer and cannot be sold to other purchasers, upon termination by Buyer, Seller shall promptly advise Buyer of the quantities of applicable work and material on hand or purchased prior to termination and the most favorable disposition that Seller can make thereof. Seller will comply with Buyer instructions regarding disposition of such work and material. All claims by Seller based on such termination must be asserted, in writing and in full, within ten (10) days from the date of notification of the termination, or order price of finished work and the cost to Seller, excluding profit or losses, of work in process and raw material less, however: (1) the agreed value of any items used or sold by Seller with Buyer consent and (2) the reasonable value or cost (whichever is higher) of any defective, damaged or destroyed work or material and any items sold or used by Seller without Buyer consent. Buyer will make no payment for finished work, work in process or raw materials fabricated or procured by Seller unnecessarily in advance or in excess of Buyer delivery requirements. The payment provided for in this clause shall constitute Buyer only liability in the event an Order is terminated as provided herein. The foregoing provisions of this section shall not apply to any termination by Buyer for default of Seller or under the following provisions of this section. To the extent this Order covers items normally carried in inventory by Seller (as distinguished from items specially made to Buyer specifications), Buyer shall not have liability for any termination of this Order, in whole or in part, prior to actual delivery Notwithstanding the foregoing, if Seller shall become insolvent or make a general assignment for the benefit of its creditors or if a petition in bankruptcy shall be filed by or against it, or any proceedings shall be instituted by or against it for any relief under any bankruptcy or insolvency laws, or if a receiver shall be appointed or its property or assets, Buyer may, by delivery of a written notice of termination to Seller, terminate any Order and this Contract in their entirety.
Inspection and Test. All Goods ordered shall be subject to final inspection and test by Buyer. Such inspection shall be made within a reasonable time after receipt, irrespective of day of payment, and any items which are not fully conform to this Order may be rejected by notice to Seller. Said rejected items are to be replaced with applicable conforming items within the fastest reasonable time after notice of rejection to Seller or, at the option of Buyer exercised by written notice, the quantity of Goods may be reduced by the number of rejected items.
Miscellaneous. All covenants and agreements contained in this Contract by or on behalf of any of the parties hereto shall bind and inure to the benefit of their respective successors and assigns whether so expressed or not, except that Seller shall have no right to subcontract any products or services to be provided under any Order, nor assign Seller’s rights or interest under this Contract without the prior written consent of Buyer. Any attempt by Seller to subcontractor or assign its rights or obligations hereunder without the prior written consent of Buyer shall be null and void. No amendment, modification, termination or waiver of any provision of this Contract given pursuant or attendant hereto, and no consent to any departure by either party therefrom, shall in any event be effective unless the same shall be in writing and signed authorized representatives of both parties, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No notice to or demand on Seller in any event, case or occurrence, shall of itself entitle Seller to any other or further notice or demand in any similar or other circumstances. The headings of the various sections of this Contract are solely for convenience and are not part of this Contract for purposes of interpreting the provisions hereof. Terms employed in this Contract, unless otherwise defined, shall be deemed to have the meanings set forth in the Pennsylvania Consolidated Statutes, specifically the Uniform Commercial Code as enacted therein. Unless otherwise specified, the terms “herein,” “hereunder,” “hereto,” “herewith,” and words of similar import refer to this entire Contract including any Order terms and conditions and any Additional Documents; the singular includes the plural, and conversely. This Contract and any other document or instrument delivered or to be delivered pursuant hereto shall be governed by and construed in accordance with the laws of the State of Pennsylvania applicable to contracts made and performed in the State of Pennsylvania without giving effect to any conflict of law provision or rule thereof that would result in the application of the laws of any other state. If any provision hereof is or becomes invalid or unenforceable under any law of mandatory application, it is the intent of the parties hereto that such provision will be deemed severed and omitted herefrom, the remaining portions hereof to remain in full force and effect as written. All notices or other communications required or permitted to be given hereunder shall be in writing emailed to Buyer at email@example.com. Unless exempt, Seller shall comply with all applicable laws including, without limitation, the Equal Opportunity clauses set forth in 41 CFR Section 60-1.4(a), 60-741(a) – (f), 60-250.4(a) and 29 CFR Part 471, Appendix A, Subpart A. A determination that any term of this Contract is invalid or unenforceable shall not affect the other terms hereof.
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