All sales by Bariatric Fusion (“Seller” or “Bariatric”) shall be governed by the following terms and conditions unless otherwise expressly stated in writing to supersede these terms and conditions:
- Acceptance and Complete Agreement.
These Terms and Conditions (“Terms and Conditions”) govern all sales quotations and sales transactions of product (“Product”) from Seller to the buyer (“Buyer”), and, together with any price, shipping, and quantity terms specified in an order and confirmed or acknowledged by Seller, shall constitute the complete agreement between the parties and may not be altered or modified except in writing duly executed by each party. The parties agree that absent a Master Sales or other Agreement executed by them that expressly references these Terms and Conditions, there are and can be no agreements or other terms between the parties, oral or written, with respect to the Products (including any made or implied from past dealings) except as expressed herein or in such Agreement. Any terms or conditions on any of Buyer’s forms, correspondence, or orders that are different from or in addition to these Terms and Conditions are specifically rejected, and all quotations, acknowledgements, invoices, or other writings that in any way act as an offer or acceptance by Seller are expressly conditioned upon Buyer’s acceptance of all of Seller’s Terms and Conditions and only Seller’s Terms and Conditions. Seller’s failure to object to provisions contained in any communication from Buyer shall not be construed as a waiver of these Terms and Conditions or as an acceptance of any such provision. No order shall be binding upon Seller unless and until such order is accepted (or otherwise processed) by Seller. Buyer’s order will be deemed a representation that Buyer is solvent and able to pay for the Products ordered.
- Quotations and Proposals.
Only a written quotation or proposal shall constitute Seller’s quotation or proposal for the sale of Product, and it shall expire on the expiration date indicated on said quotation or proposal, or, if no date is specified, then thirty (30) days after the date of the quotation or proposal. Any quotation or proposal may be modified or withdrawn by Seller, in whole or in part, at any time prior to acceptance of an order by Seller.
Prices quoted, unless otherwise stated by Seller in writing, are FOB shipping point (for delivery within the United States) and do not include sales, use, excise, or similar taxes or duties, or freight. Buyer shall pay these taxes directly if the law permits or will reimburse Seller if Seller is required to pay them. Buyer will provide tax exemption certificates or evidence of tax payment on request. Unless otherwise specified, orders will be billed at prices as specified on Seller’s then current list price, which shall be subject to change from time to time.
- Terms and Methods of Payment.
All payments are to be made in U.S. Dollars. Unless otherwise specified in writing by Seller, all payments are due upon delivery of the Product. Without limiting any other remedies available to it at law or in equity, Seller shall have the right to terminate the order or to suspend further deliveries under any order with Buyer in the event that Buyer fails to make any payment to Seller when due. Seller may recover all costs of collecting past due amounts (including reasonable legal fees and expenses). Buyer acknowledges that a $25 processing fee, in addition to any applicable late penalties, will be charged for each rejected credit payment or any check that is returned by the Buyer’s bank for any reason.
Shipments shall be subject to approval of Buyer’s credit by Seller. In the case where Buyer’s credit is or has become unacceptable to Seller, in its sole discretion, Seller may, at its option, terminate the order, or refuse to make shipment, in each case unless and until payment is made by Buyer or satisfactory security for payment is received by Seller prior to shipment. In the absence of specific instructions, Seller will select the carrier but shall not be deemed thereby to assume any liability in connection with the shipment, nor shall the carrier be construed to be an agent of Seller. Unless otherwise specified in writing by Seller, Buyer is responsible for all site preparation and for receiving and storing all Product. In its sole discretion, Seller may provide a quotation for services to assist Buyer in some or all of these functions if requested.
Seller’s estimated shipping schedule is based on Seller’s prompt receipt of all necessary information from Buyer to properly process the order, and does not constitute a commitment to deliver Product in accordance therewith. Seller will use reasonable efforts to ship on or before the estimated shipping dates. Delivery will be made to Buyer’s specified address, provided that in the event that Buyer is not present at the time of delivery, Seller may leave Product at Buyer’s specified address. At Buyer’s request, Seller can attempt re-delivery at a time when Buyer will be present, provided that Buyer shall be responsible for the costs associated with Seller’s re-delivery attempt. Seller will not move Product into homes or garages or over lawns. At Buyer’s option, Buyer may pick-up the Products at Seller’s shipping point, provided that Buyer shall be responsible for loading Products into its vehicle and complying with vehicle load ratings and safe operating practices.
All products must be inspected within five (5) calendar days of receipt. If any damage is discovered, a claim must be filed with the carrier and a full report of the damage must be forwarded to Seller. If Buyer is not satisfied with the product, Seller will give Buyer a full refund (less shipping) for one opened Bariatric bottle/tub/packet, etc. and any unopened bottles/tubs/packets, etc. No refunds will be paid for claims received by Seller after 60 days from the shipping date.
- Force Majeure.
Seller shall not be liable for any delay in delivery or performance, or for non-delivery or non-performance, in whole or in part, caused by the occurrence of any contingency beyond Seller’s control, including, without limitation, riot or other act of civil disobedience, act of a public enemy, terrorism, failure or delay in transportation, act of any government or any agency or subdivision thereof, judicial action, labor dispute, accident, fire, flood, storm or other act of God, shortage of labor, fuel, raw material, ormachinery or technical failure, where Seller has exercised ordinary care in the prevention thereof. If any such contingency occurs, Seller may allocate production and deliveries among Seller’s customers in any manner deemed reasonable by Seller.
- Disclaimer of Warranties.
Buyer acknowledges that the Product is not intended to diagnose, treat, cure or prevent disease. SELLER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND WHATSOEVER, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- Trade Control Laws.
Buyer understands that exports and re-exports of the Products and any related software, technical data, service, or technical assistance (individually, an “Item” and, collectively, the “Items”) are subject to U.S. and foreign trade controls, customs, anti-boycott, and economic sanctions laws, regulations, rules and orders (collectively, “Trade Control Laws”). In addition to any other remedy it may have, Seller may suspend and/or cancel the export and delivery of any Item if (a) Seller has not received all export-related documentation requested by Seller, including end-user certificates, (b) Seller has not received the governmental approvals that Seller deems to be required, or (c) Seller believes that such activity may violate any Trade Control Laws or Seller’s own compliance policies. Buyer shall not export, re-export or otherwise transfer or provide any Item in contravention of any Trade Control Law or any end-user certificate provided by Buyer, including to an embargoed or otherwise sanctioned country (including Iran, North Korea, Syria, Sudan, and Cuba), to anyone listed on any prohibited persons list published by the U.S., or for a prohibited end-use (proliferation activities). Buyer must notify Seller before providing any technical data to Seller that is controlled under any Trade Control Law. Seller will not be liable to Buyer for any loss or expense if Buyer fails to comply with any Trade Control Law. Buyer shall indemnify Seller for all losses, costs, claims, damages and expenses (including attorney fees and expenses) arising from Buyer’s violation or alleged violation of any Trade Control Law.
Orders accepted by Seller may be canceled by Buyer only with the written consent of Seller and upon Buyer’s reimbursement of Seller for all losses, damages, costs, lost profits and expenses arising from such cancellation. Any deposits made by Buyer for orders accepted by Seller, and which are subsequently cancelled by Buyer, are not refundable. Seller shall have the right to cancel any order placed, or to refuse, or to delay, the shipment thereof for failure of Buyer to make all payments when due to Seller, or any other reasonable requirements established by Seller, or for any acts or omissions of Buyer that delay Seller’s performance. In the event of bankruptcy or insolvency of Buyer, or in the event any proceeding is brought by or against Buyer, voluntarily or involuntarily, under any provision of the U.S. Bankruptcy Code or any other insolvency law, Seller shall be entitled to cancel any order then outstanding.
- Non-Waiver of Default.
If Seller elects to continue to make shipments or perform under an accepted order, Seller’s action shall not constitute a waiver of any default by Buyer or in any way affect Seller’s legal remedies for any such default.
- Applicable Law/Forum Selection.
The validity, performance, and construction of these Terms and Conditions shall be governed by the laws of the State of New York. Unless otherwise specified in writing, all controversies and disputes arising between the parties hereto shall be resolved by the state or federal courts in Buffalo, New York. The parties consent to jurisdiction of said courts and to service of process in any manner permitted by said courts. The parties hereby acknowledge that the rules of the United Nations Convention on Contracts for the International Sale of Goods and any similar treaties governing the sale of goods shall not apply hereto and shall not be used for interpreting any transactions or the rights of the Parties.
Buyer agrees to indemnify, defend and hold Seller harmless from and against all losses, liabilities, claims, or causes of action for injuries or damages to any person or property arising out of or in any way related to Buyer’s negligence or other improper conduct, and further from and against any judgment, settlement, penalty, loss, costs, expenses, liability, damage or injury, including reasonable legal fees and disbursements, that Seller may, directly or indirectly, sustain, suffer or incur as a result thereof.
- Additional Limitations.
IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL SELLER’S LIABILITY EXCEED THE PRICE ACTUALLY PAID BY BUYER TO SELLER FOR THE SPECIFIC PRODUCTS GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. SELLER SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, WHETHER OR NOT FORESEEABLE. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF ANY TRANSACTION GOVERNED BY THESE TERMS AND CONDITIONS, MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED. The foregoing allocation of risk and limitation of liability has been agreed to by the parties and forms the basis of their willingness to transact business.
No failure to exercise and no delay in exercising on the part of Seller any right, power or privilege hereunder will operate as a waiver thereof nor will any single or partial exercise of any right, power or privilege hereunder preclude further exercise of the same right, power or privilege.
- Validity of Provisions.
Bariatric reserves the right to make changes to its site, policies, and these Terms and Conditions of Purchase at any time. In the event any provision or any part or portion of any provision of these Terms and Conditions shall be held to be invalid, void or otherwise unenforceable, such holding shall not affect any other provision hereof.
Revised as of June 11, 2013. This revision supersedes all previous revisions and versions.