Acceptance.
Acceptance of an order by D. A. Surgical is expressly made conditional on the Purchaser’s acceptance of these terms and is contingent on a satisfactory credit evaluation. Purchaser will be deemed to have assented to Purchaser’s completion or execution of this Agreement and Purchaser’s acceptance to this Agreement by issuance of a purchase order and subsequent acceptance in writing by D. A. Surgical. Any additional or different terms specified or referenced in Customer’s Purchase Order are hereby excluded and shall not be deemed effective or binding unless expressly agreed to in writing by an authorized representative of D. A. Surgical.
Order Cancellation Policy.
Purchaser may only cancel a purchase order if Purchaser provides written notice to D. A. Surgical at least 24 hours prior to the scheduled shipment date and with written acceptance by an authorized representative of D. A. Surgical.
Pricing.
Unless otherwise agreed to in writing or set forth in the quotation, all prices quoted by D. A. Surgical are based on U.S. dollars. Unless otherwise stated, the Quotation pricing is only valid for 30 days from original quote date. Prices are confidential and may not be published or shared with parties not listed on the quote.
Payment.
Invoices are payable net thirty (30) days from date of invoice. Payment shall be deemed to have been made when a check is received by D. A. Surgical or payment is received by an electronic transfer in D. A. Surgical’s bank account. Unless waived by D. A. Surgical in writing, overdue undisputed invoices shall be subject to a late payment charge equal to the lesser of one and one half percent (1½%) per month or the maximum rate allowed by law. Purchaser agrees to pay D. A. Surgical for any and all costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred by D. A. Surgical to collect any amounts owed to it under this Agreement. D. A. Surgical may require an advance payment or milestone payments prior to beginning performance of the Purchase Order. D. A. Surgical may require the Customer to obtain a letter of credit for international orders.
Delivery and Shipment.
Date of delivery shall be determined by mutual written agreement of the parties. No delivery date set forth in a purchase order shall be binding on D. A. Surgical unless D. A. Surgical explicitly agrees to such delivery date. Shipment of all products shall be Freight on Board (FOB) origin. Whereupon title to and all risk of loss, damage, or destruction of the products will pass to the Purchaser. All freight charges, transportation and other similar charges will be the sole responsibility of the Purchaser. In the event of any loss or damage to any of the products during shipment, Purchaser should make claim against the carrier. D. A. Surgical’s quoted delivery schedule represents its best estimate and is based on current schedules and workload. D. A. Surgical shall have no liability for delay or any damages or losses sustained by Customer as a result of such estimate not being met. Partial deliveries shall be permitted. D. A. Surgical shall pack all products in accordance with its standard design and packaging specifications or practices. Special packaging or handling requirements may be accommodated at the discretion of D. A. Surgical.
Taxes.
Purchaser shall be billed for all applicable sales and other taxes until such time as Purchaser provides a tax-exempt certificate (resale certificate) to D. A. Surgical with respect to such taxes. Applicable taxes will be calculated and billed at time of invoicing. Taxes will be in addition to the prices quoted.
Warranties.
Subject to the terms and conditions set forth, D. A. Surgical warrants that the durable Products manufactured by D. A. Surgical shall be free from defects, including latent defects, in material and workmanship for a period of 12 months from delivery and reusable products shall perform as intended under normal use and service when operated in accordance with D. A. Surgical’s operating instruction. D. A. Surgical’s obligation and Customer’s remedy under the Warranty shall be, at D. A. Surgical’s option, the repair or replacement of the nonconforming warranted Product, or any part thereof. The warranty does not apply to consumable items such as foam pillows and like items. Consumable Products manufactured by D. A. Surgical shall be free from defects, including latent defects, in material and workmanship under normal storage and handling conditions for 12 months from manufacture date of products as indicated on the labeling. D. A. Surgical’s obligation and Customer’s remedy shall be, at D. A. Surgical’s option, the destruction or replacement of the nonconforming consumable Product, or any part thereof.
EXCEPT AS SPECIFICALLY SET FORTH IN THE AGREEMENT, D. A. SURGICAL MAKES NO WARRANTIES, EXPRESS OR IMPLIED. EXCEPT AS OTHERWISE SET FORTH IN THE AGREEMENT, D. A. SURGICAL EXPRESSLY DISCLAIMS ANY WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, OF ANY KIND OR NATURE WITH RESPECT TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATION: FITNESS FOR ANY PARTICULAR PURPOSE; WORKMANSHIP; OR MERCHANTABILITY. UNLESS OTHERWISE REQUIRED BY LAW, THIS WARRANTY EXTENDS ONLY TO THE ORIGINAL PURCAHSE OF THE PRODUCTS PURCHASED FROM D. A. SURGICAL OR FROM AN AUTHORIZED D. A. SURGICAL DISTRIBUTOR. Customer shall provide written or verbal notice of the Product’s failure within the Warranty period, to D. A. Surgical Customer Service. If requested, and provided a Return Materials Authorization (RMA), Customer will ensure the failed Product is packed and returned to D. A. Surgical with transportation and insurance prepaid by D. A. Surgical.
Purchaser acknowledges that it understands its obligations under the Safe Medical Devices Act of 1990 (the “Safe Devices Act”), including, but not limited to, its reporting obligations to the U.S. Food and Drug Administration (the “FDA”). In the event Purchaser is required to file a notice with the FDA pursuant to the Safe Devices Act, Purchaser agrees to simultaneously provide D. A. Surgical a copy of such report by sending a copy of the report to: D. A. Surgical, 11110 Kinsman Rd, Ste 50, Newbury, OH 44065.
Limitation of Liability.
IN NO EVENT WILL D. A. SURGICAL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE PURCHASE, WHETHER BASED IN BREACH OF WARRANTY OR CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR ANY OTHER LEGAL THEORY, EVEN IF D. A. SURGICAL IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION: DELAYED SHIPMENT, LOST PROFITS, SAVINGS, OR REVENUE; DAMAGE TO REPUTATION; LOSS OF USE OF A PRODUCT OR ANY ASSOCIATED EQUIPMENT; COST OF CAPITAL; COST OF ANY SUBSTITUTE GOODS, EQUIPMENT, FACILITIES OR SERVICES; DOWNTIME; OR THE CLAIMS OF THIRD PARTIES INCLUDING PURCHASER’S CUSTOMERS.
Return Goods Policy.
Should D. A. Surgical ship products in error, D. A. Surgical shall arrange and pay for return shipment of the product without applying a restocking fee provided that, Purchaser notifies D. A. Surgical of the error within thirty (30) days of shipment, and the product is returned in “as shipped” condition. If Purchaser orders products in error and notifies D. A. Surgical of the error within thirty (30) days of shipment, Purchaser may return the product in “as shipped” condition at Purchaser’s cost and expense; however, Purchaser agrees to pay D. A. Surgical a restocking fee of 15% of the net price for the returned products.
Installation.
Unless otherwise agreed in writing, Purchaser shall perform any installation of products sold hereunder at Purchaser’s expense. D. A. Surgical agrees to furnish appropriate instructions and information to assist with the installation and/or operation of the products.
Product Interface.
Purchaser shall be responsible for ensuring to Purchaser’s satisfaction that any equipment and accessories not supplied by D. A. Surgical, that are used with the products, properly interface or operate with the products. D. A. Surgical shall not be liable to Purchaser or any third person for personal injury or property damage arising from the use of third-party equipment and accessories with the products.
Specifications.
Specifications and any other information shall remain the property of D. A. Surgical and are subject to recall at any time. Such information shall not be disclosed or used for manufacture of any products. In accordance with D. A. Surgical’s established policy of constant improvement, D. A. Surgical reserves the right to amend its specifications at any time without notice.
Ordering.
All purchase orders should be emailed to customerservice@da-surgical.com.
If you have any questions, please call Customer Support at (800) 261-9953.
Force Majeure.
Either party shall be excused from any delays in schedules or failure to perform any of its obligations, except payment obligations, under this Agreement caused by floods, strikes or other labor disturbances, fires, accidents, wars, delays of carriers, inability to obtain raw materials, failures of normal sources of supply, restraints of government, or any other similar or dissimilar cause beyond either party’s reasonable control. No such delay or failure shall be considered a breach of either party’s obligations under this Agreement.
Security Interest.
D. A. Surgical shall retain a security interest in the products until D. A. Surgical has received full payment including taxes. Purchaser agrees to sign and deliver to D. A. Surgical any additional documents required by D. A. Surgical to protect its security interest. If Purchaser defaults or D. A. Surgical deems itself insecure or the products in danger of confiscation, the full amount unpaid shall immediately become due and payable at the option of D. A. Surgical and on proper notice to Purchaser, D. A. Surgical may retake possession of the products wherever located without court order and can resell or retain according to the laws of the state where the products are located. The products shall not be considered a fixture if attached to any realty. Purchaser shall assume all loss relating from damage to the products occurring after the products have been delivered to Purchaser and shall provide adequate insurance therefore at all times until the purchase price shall have been fully paid. D. A. Surgical reserves the right to request proof of such insurance at any time prior to full payment along with a statement from such insurer limiting cancellation or changes to said policy within ten (10) days after written notice of same to D. A. Surgical.
Complete Agreement; Conflicting and Additional Terms.
This Agreement and Purchase Orders issued and accepted in accordance with this Agreement contain the complete agreement of the parties with respect to the subject matter hereof. All Products from D. A. Surgical will be provided on the terms and conditions set forth in this Agreement. The terms of this Agreement will govern over any conflicting terms in individual Purchase Orders, and all additional terms (other than the dates, product type and quantity terms of such order) in individual Purchase Orders will be disregarded in their entirety unless otherwise explicitly agreed to in a writing signed by an authorized representative of each party.
Amendment.
No amendment or modification of this Agreement shall be effective or binding upon either party unless committed to in writing and signed by a duly authorized representative(s) of each of the parties.
Severability.
Each and every paragraph, sentence, clause, term and provision of this Agreement shall be severable, and if any portion of this Agreement shall be held or declared to be illegal, invalid, or unenforceable, such illegality, invalidity, or unenforceability shall not affect any other portions hereof, and the remainder of this Agreement, disregarding such invalid portion, shall continue in full force and effect as though such void provision had not been contained herein.
Waiver of Damages.
In no event will either party be liable for any indirect, punitive, special, incidental or consequential damages in connection with or related to this agreement (including delayed shipment; loss of profits, use, data, or other economic advantage; damage to reputation; loss of use of a product or any associated equipment; cost of capital; cost of any substitute goods, equipment, facilities or services; downtime; or the claims of third parties including purchaser’s customers), howsoever arising, either out of breach of this agreement, including breach of warranty, or in tort (including negligence, strict liability, or otherwise), even if the other party has been previously advised of the possibility of such damage and whether or not such damages are foreseen or unforeseen.
Law and Venue.
These Terms and Conditions, and any related claims or disputes, are governed by and construed under Ohio law, notwithstanding its principles of conflicts of law. Any claim or legal action arising under these Terms and Conditions shall be commenced and maintained in the Ohio state court, located in Geauga County, Ohio, or federal court located in the U.S. District Court for the Northern District of Ohio, located in Cleveland, Ohio, respectively. The parties waive their rights to a jury trial in any such action, and agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to the purchase of goods under this.
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