Buyer acknowledges that by: (a) signing this Quote/Order/Purchase Agreement (hereinafter the “Agreement”) and delivering it to Medical Laser Sales (hereinafter “MLS”); and/or (b) paying the purchase price to MLS for the products and/or services set forth above, Buyer has accepted the terms and conditions contained in this Agreement. By signing this Agreement, Buyer also represents, knowing that MLS is relying thereon, that: (a) the credit card information Buyer provided to MLS above is for a credit card that Buyer owns, controls and/or has the authority to use for this transaction; and (b) Buyer shall promptly pay MLS for all of the costs, losses and expenses it incurs (including, without limitation, actual attorney fees and collection agency fees) if Buyer’s above referenced representation regarding the credit card is false and/or MLS is forced to engage in collection efforts to receive the purchase price in full. MLS will not accept the return of any Products as settlement for the debt incurred hereunder and will only accept payment in full.
MLS objects to any attempt by Buyer to insert any additional or different terms pertaining to the sale of the products and/or services hereunder. Buyer agrees that no such attempts by Buyer can be construed as MLS’s acceptance of any additional or different terms. Buyer and MLS agree that the terms of this Agreement can only be changed, altered, modified, amended or added to by a subsequent writing that specifically refers to this Agreement and which is signed by an authorized representative of Buyer and MLS’s CEO or President. Any purported changes, alterations, modifications, amendments, or additions to this Agreement that do not precisely fulfill this requirement are not valid.
MLS’s Limited Warranty
Unless a different time period is expressly stated in writing in this Agreement, MLS warrants that the product(s) being sold to Buyer identified above (hereinafter “Product” or “Products”) will be in good working order upon Delivery (as that term is defined below) and for a period of thirty (30) days immediately following the date of Delivery (hereinafter the “Warranty Period”).
Buyer acknowledges that MLS’s above referenced Limited Warranty will be invalidated if any Product is: (1) installed, modified or repaired by anyone other than a facility or technician approved by MLS in writing in advance of the installation, modification and/or repair; (2) handled, maintained or used in a manner that is inconsistent with and/or contrary to the original manufacturer’s and/or MLS’s recommended procedures and/or instructions; (3) damaged through misuse, negligence, accident or abuse by Buyer, its employees, agents or representatives; and/or (4) damaged by any external causes outside of MLS’s control, including but not limited to, damage due to moving the Products from one location to another, power failure, earthquake, flood or fire.
Buyer acknowledges that the Products being sold are medical lasers, acquired by MLS in used condition and are being resold by MLS in their “as is” condition. Buyer acknowledges that MLS is not bound by any warranty that may be set forth in the manufacturer’s written materials that would have applied had Buyer purchased the Products directly from the manufacturer in their unused state. Other than the Limited Warranty set forth above, MLS EXPRESSLY DIMLSAIMS AND EXCLUDES ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND/OR IMPLIED FROM A COURSE OF
DEALING OR COURSE OF PERFORMANCE. Buyer acknowledges that Buyer has not relied upon any warranty other than the Limited Warranty set forth above.
To be eligible for the service under MLS’s Limited Warranty set forth above, Buyer must, within forty-eight (48) hours after discovering that the Product(s) are not in good working order and within the Warranty Period: (i) notify MLS in writing which specific Product(s) or part are not in good working order and describe the facts and circumstances relating to the alleged failure of the Product(s) or part (hereinafter “Warranty Notice”); and (ii) return such Product(s) or part to MLS within thirty (30) days of the Warranty Notice for inspection and evaluation through MLS’s designated custom broker to an authorized MLS service location, unless MLS expressly advises Buyer in writing that it is not required to return such defective Product(s) or part.
Before returning any Product or part to MLS, Buyer must obtain a return authorization number from MLS. Buyer shall return the Product(s) or part in their original packaging marked with the return authorization number and in resalable condition. At MLS’s sole discretion, MLS may evaluate and/or service the defective Product(s) or part at Buyer’s place of business.
Upon receipt, inspection and/or evaluation of the defective Product(s) or part, MLS will determine, in its sole discretion, whether to: (i) repair the Product(s) or part; (ii) replace the Product(s) or part; and/or (iii) refund an equitable portion of the purchase price Buyer paid for the Product(s) or part. MLS will notify Buyer in writing of the election it makes. The foregoing remedies are MLS’s sole obligation and Buyer’s sole remedy for any claim made under the Limited Warranty set forth in this Agreement. Buyer acknowledges that unless MLS states in writing otherwise, MLS will utilize used parts to make any necessary repairs or replacements.
If MLS elects to repair or replace any defective Product(s) or part Buyer returns to MLS, MLS shall, within a reasonable time after receiving those Product(s) or part, make such replaced or repaired Product(s) or part available for shipment to Buyer Ex Works from MLS’s facility. If MLS elects to refund an equitable portion of the purchase price of such Product(s) or part, as determined by MLS in its reasonable discretion, MLS will issue that refund to Buyer within a reasonable time after MLS has received the returned Product(s) or part from Buyer.
Provided Buyer has given MLS Warranty Notice within the 48 hour period referenced above and the Products are not in good working order upon Delivery (as that term is defined below), MLS will make the shipping arrangements for the Products and pay for all of the shipping costs to and from the Buyer for service under MLS’s Limited Warranty. Similarly, provided: (a) Buyer has given MLS Warranty Notice within the 48 hour period referenced above, (b) Buyer has paid MLS to install the Products; (c) said installation takes place within two weeks of the date of Delivery; and (d) the Products are not in good working order within said two week time frame, MLS will make the shipping arrangements for the Products and pay for all of the shipping costs to and from the Buyer for service under MLS’s Limited Warranty. In all other situations in which Buyer has timely given MLS Warranty Notice and timely returned the Products, Buyer shall make the shipping arrangements for the Products and pay for all of the shipping costs to MLS for service under MLS’s Limited Warranty, and MLS shall make the shipping arrangements for the Products and pay for all of the return shipping costs to Buyer. Do not dispose of your packaging!
All prices are quoted in U.S. Dollars and are exclusive of taxes, including state and local use, sales, property (ad valorem), and similar taxes. Buyer will pay and indemnify MLS for such taxes (except taxes levied against MLS’s income) unless Buyer has provided MLS in advance of the purchase with a valid exemption resale certificate, or such sale is otherwise exempt from such taxes. Buyer’s purchase order is subject to cancellation by MLS, at MLS’s sole discretion. MLS is not responsible for pricing, typographical, or other errors in any quote by MLS and reserves the right to cancel any orders resulting from such errors. All quotes are subject to product availability and/or prior sale. Buyer is responsible for obtaining all required licenses and selecting and paying any freight, packing, shipping, insurance, customs, duties, taxes, and broker fees.
Payment and Security Terms
Buyer will pay the purchase price in U.S. Dollars by wire transfer, credit card, cashier’s or company check, or other prearranged payment method, at MLS’s sole discretion. Terms of payment are within MLS’s sole discretion, and unless otherwise specified in this Agreement or agreed to in writing by MLS, Buyer will pay MLS in full prior to MLS making the Product available for shipment. MLS hereby agrees, in consideration of Buyer’s payment of a nonrefundable deposit, to withdraw said asset(s) from the market until the above date and to transfer its ownership interest to Buyer upon receipt of payment in full.
If MLS has agreed to ship the Products upon Buyer’s payment of a deposit, which shall be nonrefundable, the balance is due prior to Delivery (as that term is defined below).
Buyer hereby grants, and MLS reserves, a purchase money security interest in each Product purchased, and in any proceeds thereof, for the amount of the purchase price. MLS’s security interest is strictly that of a creditor and not as owner or principal. Buyer agrees to sign any and all documents MLS requires to perfect such security interest and/or appoints MLS as Buyer’s attorney-in-fact to sign such documents on Buyer’s behalf should Buyer fail to do so within a reasonable time after MLS asks Buyer to do so.
In the event Buyer fails to pay MLS any amounts owed when due, interest shall accrue on such amounts from the date due until paid in full at 1½% per month. Buyer will reimburse MLS for all costs and expenses MLS incurs (including but not limited to actual attorney fees and collection agency fees) in its efforts to collect such unpaid amounts.
Shipments, Title, Risk of Loss, Insurance
All Product delivery dates are estimated. MLS is not liable for any damages, costs or losses incurred by Buyer or others for failure to meet such delivery date (s).
All of MLS’s deliveries of Products are Ex Works at MLS’s designated facility. Title to the Products (except software products and documentation) and risk of loss and damage shall pass to Buyer when the Products are delivered and accepted by Buyer per the signed shipment waybill (hereinafter “Delivery”). Title to software products and documentation shall remain with the applicable licensors.
Buyer must notify MLS, in writing, upon signing and presenting this Agreement to MLS, of any delayed or exceptional shipping requirements Buyer may have, including, but not limited to, facility availability or unique delivery requirements and pay for all of the additional costs MLS incurs because of them. If Buyer fails to notify MLS of such requirements at the time Buyer signs and presents this Agreement to MLS, MLS will follow its typical order processing and delivery procedures and will not be liable for any exceptional shipping, delivery and/or storage costs, all of which shall be Buyer’s sole responsibility.
Buyer shall obtain and maintain, at its sole expense, from the time of Delivery until payment by Buyer of the full amount due hereunder, insurance for the Products against loss, theft, damage or destruction for such Products’ full replacement value, with loss payable to MLS or its assignee.
Buyer acknowledges that the Products have been sold to Buyer pursuant to the Buyer’s verified medical license. If, however, Buyer does not have a medical license, Buyer is responsible for purchasing and operating the Products in accordance with all applicable state and local laws and regulations, including where appropriate, ensuring that the Products are operated under the supervision of a licensed medical practitioner. Buyer represents that its license is that of the licensed medical practitioner, is in good standing and has satisfied all relevant state and local requirements that pertain to the purchase and operation of the prescription Products. If the Products are sold to a distributor, the distributor will verify that all purchasers are duly licensed to purchase and possess such prescription medical devices in accordance with the applicable state and local laws and regulations. In addition, the distributor shall retain proof that the purchaser possesses the necessary valid and active state license to purchase prescription medical devices. The distributor will not solicit or encourage purchases by individuals who do not possess the requisite state license to prescribe and/or possess prescription medical products.
Buyer will indemnify, defend and hold harmless MLS, its directors, officers, employees and agents, from any and all liabilities, damages, losses, claims or expenses, including court costs, expert witness fees and reasonable attorneys’ fees (hereinafter “Losses”) arising out of or in connection with (i) any willful or negligent use of the Products by Buyer and/or any of its employees, contractors or representatives; (ii) Buyer’s use, sale, lease, transfer or other exploitation of any Product in a manner not authorized by this Agreement; (iii) any injury or death of person or damage to property to the extent caused by or arising out of any acts or omissions of Buyer, its agents, employees, and contractors, or in connection with Products handled, stored, sold, applied or otherwise utilized by Buyer; (iv) Buyer’s breach of this Agreement; and (iv) any failure by Buyer, its employees, agents or contractors, to comply with the terms of this Agreement, or applicable federal, state and local laws, regulations and guidance’s.
Limitation of Liability
In no event will MLS, its officers, directors, employees, contractors or agents, be liable under any theory of recovery, whether based in contract, tort (including negligence and strict liability), warranty or otherwise, for any INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOSS OF PROFITS, LOSS OF USE, COST OF COVER), OR PUNITIVE DAMAGES. Under no circumstances will MLS’s aggregate liability under any theory of recovery exceed the price paid for the products or services at issue. The prices and limitations of liability set forth in this Agreement reflect the allocation of risk agreed to by the Buyer and MLS. Buyer acknowledges that MLS would not sell Products without these limitations on its liability and that these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
The Products may include technology that is subject to the customs and export control laws and regulations of the United States and may also be subject to the customs and export control laws, orders and regulations of the country in which the Products are manufactured and/or used. Buyer is solely responsible for and shall fully comply with such laws, orders and regulations. Not limiting the foregoing, Buyer will not use for the benefit of, or sell, lease, export, re-export or otherwise transfer Products to restricted end-users (including those on the U.S. Department of Commerce, Bureau of Industry and Security “Entity List” and other lists of denied parties) or to restricted or boycott countries identified by the U.S. Department of State or the U.S. Treasury Department. Buyer will obtain all necessary licenses and other governmental approvals prior to exporting or re-exporting the Products. Buyer and MLS hereby disclaim the applicability of the 1980 U.N. Convention on the International Sale of Goods.
MLS’s performance hereunder is subject to postponement or cancellation, in its sole discretion, for any cause beyond MLS’s reasonable control, including without limitation: inability to obtain or transport safely any Products or necessary materials and components; strikes, labor disturbances, and other unavailability of workers; fire, flood, and other acts of God; war, domestic or international terrorism, riot, civil insurrection, and other disturbances; production or engineering difficulties; and governmental regulation, orders, directives, and restrictions.
The parties agree that any and all claims, demands, disagreements, controversies or disputes arising out of or relating to this transaction (collectively “Claims”) shall be governed by and construed in accordance with the laws of the State of Utah and adjudicated exclusively in Summit County, Utah County Court or District Court, which courts shall have the sole and exclusive jurisdiction and venue for adjudication of all Claims. The parties hereby agree upon, consent and stipulate to the jurisdiction and venue of the aforementioned courts for the adjudication of all Claims, to the exclusion of all other courts, forums and venues whatsoever.
Any required notices shall be provided in writing to Buyer at the address or by email or fax as set forth in this Agreement, and to MLS by email to email@example.com or by overnight carrier to Medical Laser Sales, 7950 E. Acoma Drive, Suite 100, Scottsdale, AZ 85260, or to such other address as either party may substitute by written notice to the other.
Buyer will not assign or transfer any of the rights, duties, or obligations herein without MLS’s prior written consent and any purported attempt to do so will be null and void.
If any court shall determine that any provision herein is unenforceable, the parties agree that any such provision, or part thereof, shall be reformed and construed consistent with the apparent purpose of the provision in order to avoid its unenforceability, or, in the event that reformation is not possible, the provision shall be severed and all remaining provisions shall remain in full force and effect.
By signing below, Buyer acknowledges that: (a) Buyer has read, understands, and is bound by the Credit Card Authorization and all of the terms and conditions of this Agreement; (b) the terms and conditions contained in this Agreement are the sole and total agreement of Buyer and MLS; (c) there are no covenants, promises, agreements or representations other than as contained in this Agreement; and (d) in accepting the terms of this Agreement, Buyer has not relied upon any promises, covenants, agreements or representations other than as expressed in this Agreement.