ALL SALES ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:
These terms and conditions govern all sales of products manufactured and sold by MDM Wound Ventures, LLC (“MDM”) to a purchaser of MDM’s products (“Buyer”) regardless of whether Buyer purchases products through a sale contract, written purchase orders, electronic orders, verbal or written quotations, or any other writings or communications relating to the products (“Order(s)”). “Sales Terms” refers to these terms and conditions as amended from time to time. MDM’s acceptance of any Order is expressly subject to Buyer’s assent to each and all of the terms and conditions set forth in these Sales Terms.
ORDER OF PRECEDENCE: No addition to or modification of these terms and conditions will be binding upon MDM unless specifically agreed to by MDM in writing. If the Order or other correspondence contains terms or conditions contrary to or in addition to the terms and conditions contained in these Sales Terms, acceptance of any Order by MDM will not be construed as assent to such contrary or additional terms and conditions, or constitute a waiver by MDM of any of the terms and conditions contained herein. In case of conflict with any other document, these Sales Terms will control. Any reference to the Buyer’s purchase order or any other documents by MDM will not affect or limit the applicability of these Sales Terms.
PRICE AND SHIPPING: Customer contract pricing is subject to the terms of the specific Order in which the contract pricing is contained. Unless otherwise specified (a) all Orders are F.O.B. Origin, 14401 Sovereign Road, Suite 101, Fort Worth, TX 76155, freight prepaid and added to the invoice; (b) all Orders are accepted subject to MDM’s price in effect at the time of shipment; and (c) all transportation and other charges are incurred by Buyer, including taxes and any increase or decrease in such charges prior to shipment. Orders are not binding upon MDM until accepted by MDM. Payment terms are net 30 Days from invoice date to the date payment is postmarked (excluding C.O.D. and Visa/MC/American Express orders). If Buyer has an open credit memo on its account, it should be used to reduce Buyer’s next payment. Buyer should note which invoices and credit memos are being used on a payment to help MDM maintain Buyer’s account accurately. Any discrepancy in an invoiced price and corresponding Order price must be reported to MDM Customer Care within 30 days of the date of the invoice. If Buyer fails to make payments on any Order in accordance with MDM’s Sales Terms, MDM, in addition to any other remedies available to it, may at its option (a) defer further shipment until such payments are made and satisfactory credit arrangements are reestablished; or (b) cancel the unshipped balance of any Order. Any amounts that are not paid when due shall bear interest from the date payment was due until the date payment is received by MDM, at a rate of interest equal to the lower of (i) 1.5% per month or (ii) the highest rate of interest permitted under applicable law. Buyer will be responsible for all costs of collection of unpaid invoices, including reasonable attorney’s fees.
CREDIT: All Orders are subject to the approval of MDM. MDM may at any time refuse to make shipment or delivery if Buyer fails to fulfill the terms and conditions of payment. MDM policies or practices may be changed at any time. MDM may require payment in full or other security. Without limiting the generality of the foregoing, if Buyer becomes the subject of a bankruptcy or other insolvency proceeding, or fails to pay MDM’s invoices as they become due, MDM reserves the right to: (a) cancel all or any part of an Order; (b) modify the terms of payment prior to shipment; (c) require “cash in advance” terms; or (d) delay or cancel any product shipment.
REPORTING: To the extent that any discounts and/or rebates are issued by MDM and received by Buyer with respect to products under these Sales Terms, such discounts and/or rebates may be considered “discounts or other reductions in price” as such terms are defined under the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b). MDM and Buyer agree to use their best efforts to comply with any and all requirements imposed on sellers and buyers, respectively, under 42 U.S.C. § 1320a-7b(b)(3)(A) of the Anti-Kickback Statute and the ‘safe harbor’ regulations regarding discounts or other reductions in price set forth in 42 C.F.R. § 1001.952(h). In this regard, Buyer may have an obligation to accurately disclose the net cost actually paid by Buyer for the products covered by these Sales Terms in accordance with applicable state or federal cost reporting requirements.
SHIPPING AND TITLE TO PRODUCTS: Unless otherwise agreed, MDM will be entitled to determine the method of shipment (including transport companies, dispatch route, packaging). Title and risk of loss shall pass to the Buyer upon delivery of the products to the carrier.
SHIPMENT VERIFICATION: Any discrepancy in the quantity billed and the quantity received resulting from damage (concealed or otherwise), shortages, overages, or wrong product, must be reported to MDM Customer Care within 10 days of the date a shipment is received. Any discrepancy reported after 10 days requires MDM Management authorization for credit. MDM will not provide proof of shipment delivery after 90 days. If products are received with damage to the exterior packaging, this damage must be noted on the carrier’s bill. Any loss or shortage caused by damage in transit will be for account of Buyer.
MDM warrants that the products manufactured by MDM, shall be free from defects in material and workmanship for a period of one year from the date of shipment (the “Warranty Remedy Period”).
If a nonconformity is discovered during the Warranty Remedy Period under normal and proper use, then MDM shall, at its option, either repair or replace any allegedly defective part or parts at its expense. It is a condition precedent to MDM’s undertakings that written notice of such nonconformity is provided to MDM promptly after such discovery, but in no event later than ten (10) business days thereafter, and within the applicable Warranty Remedy Period. Such notice shall describe the full extent and nature of the problem.
MDM shall have no obligation hereunder with respect to product that (i) has been improperly stored, installed, operated or maintained or has otherwise been used in a manner contrary to the instructions for use; (ii) has been repaired or altered not in accordance with the instructions for use; (iii) has been subject to misuse, unauthorized use, negligence, accident (including fire, water, explosion, smoke, vandalism, etc.), moisture intrusion during cleaning, or any other cause beyond MDM’s control.
Defective parts replaced by MDM shall be returned to the designated MDM facility at MDM’s expense. Title and risk of loss with respect to such parts shall pass to MDM upon delivery to MDM’s facility. Products or parts thereof may be returned for repair, replacement or adjustment only with MDM’s prior written consent.
TO THE EXTENT ALLOWABLE BY APPLICABLE LAW, THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, GUARANTEES, PROMISES, OR REPRESENTATIONS OF QUALITY OR PERFORMANCE WHETHER WRITTEN, ORAL OR IMPLIED, AND ALL OTHER WARRANTIES INCLUDING WARRANTIES OF MERCHANTABILITY, SATISFACTORINESS, FITNESS FOR ANY PARTICULAR PURPOSE OR USAGE OF TRADE ARE HEREBY DISCLAIMED. THE REMEDIES STATED HEREIN CONSTITUTE THE EXCLUSIVE REMEDIES AND MDM’S ENTIRE LIABILITY FOR ANY BREACH OF WARRANTY.
MDM makes no warranty with respect to any product supplied by MDM but manufactured by others. MDM will assign to the Buyer any warranty and guarantee claims it has against the relevant manufacturer.
MDM does not assume any responsibility for compliance with federal, state or local laws and regulations, except as expressly set forth herein, and compliance with any laws and regulations relating to the operation or use of the products is the sole responsibility of the Buyer.
PATENT INDEMNITY: MDM shall defend at its own expense any action brought against Buyer alleging that the products manufactured by MDM or the use of those products to practice any process for which such products are specified by MDM directly infringes any claim of a patent of the United States of America and shall pay all damages and costs finally awarded in any such action, provided that Buyer has given MDM prompt written notice of such action, all necessary assistance in the defense thereof and the right to control all aspects of the defense thereof including the right to settle or otherwise terminate such action in behalf of Buyer.
MDM shall have no obligation hereunder and this provision shall not apply to: (i) any product or process not manufactured and designed by MDM, including products or processes that have been modified or combined with other product or process not supplied by MDM; (ii) any patent issued after the date hereof; or (iii) any action settled or otherwise terminated without the prior written consent of MDM.
If, in any such action, the products are held to constitute an infringement, or the practice of any process using the products is finally enjoined, MDM shall, at its option and its own expense, procure for Buyer the right to continue using said products; or modify or replace it with non-infringing equipment or, with Buyer’s assistance, modify the process so that it becomes non-infringing; or remove it and refund the portion of the price allocable to the infringing products. THE FOREGOING PARAGRAPHS STATE THE ENTIRE LIABILITY OF MDM FOR ANY PATENT INFRINGEMENT.
To the extent that said products or any part thereof is modified by Buyer, or combined by Buyer with equipment or processes not furnished hereunder or said products or any part thereof is used by Buyer to perform a process not specified hereunder by MDM, and by reason of said modification, combination, or performance, an action is brought against MDM, Buyer shall defend and indemnify MDM in the same manner and to the same extent that MDM would be obligated to indemnify Buyer under this “Patent Indemnity” provision.
RETURNED PRODUCTS POLICY (SINGLE-USE, NON-CUSTOMIZED DEVICES AND SUPPLIES ONLY): MDM will accept returned products comprised of single-use, non-customized devices and supplies from the Buyer, for credit or exchange, under the following conditions:
- All returns must have written authorization from MDM Customer Care, (888-884-7515 or firstname.lastname@example.org).
- Credit will not be issued for products returned without proper documentation.
- Return Authorizations are valid for 30 days and product must be received at designated MDM location within 30 days from date of issue.
- Full credit, less a 30% restocking fee, will be given for all products returned with proper documentation, subject to MDM management approval, as long as the following conditions are met:
- All returned products must be in saleable condition with at least 1-year shelf life remaining and have been purchased in the last 3 months.
- No credit will be issued if the original package integrity is broken, damaged, or if the package is defaced with stickers or markers or if the product is within one (1) year of expiration date.
- Only full box quantities will be accepted. Credit will not be given for products no longer listed on www.ezdebride.com or for products that have been replaced by updated versions with significant feature changes.
- All returns are subject to MDM inspection. MDM reserves the right to destroy merchandise deemed unfit for sale, whether or not accepted for credit or exchange.
- Returns must be shipped, prepaid to: EZ Debride/MDM Wound Ventures, LLC. 14401 Sovereign Road, Suite 101, Fort Worth, TX 76155
TECHNICAL ASSISTANCE: Unless otherwise expressly agreed in writing by MDM, MDM assumes no obligation or liability for any technical advice provided by MDM with respect to the use of products furnished to Buyer, or for any results occurring as a result of the application of such advice. Buyer shall have sole responsibility for selection and specification of the products appropriate for the end use of such products.
INDEMNIFICATION: To the maximum extent allowed by law, Buyer shall defend and indemnify MDM and its employees and agents against all sums, costs, liabilities, losses, obligations, suits, actions, damages, penalties, fines, interest and other expenses (including investigation expenses and attorneys’ fees) that MDM may incur or be obligated to pay as a result of: (a) Buyer’s negligence, use, ownership, maintenance, transfer, transportation or disposal of the products; (b) Buyer’s violation or alleged violation of any federal, state, county or local laws or regulation, including without limitation, the laws and regulations governing product safety labeling, packaging and labor practices
LIMITATION ON MDM’s LIABILITY. NEITHER MDM NOR ITS AFFILIATES SHALL HAVE ANY LIABILITY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES FOR ANY REASON OR UNDER ANY THEORY OF LIABILITY WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOST PROFITS, BUSINESS INTERRUPTION, OR OTHER PECUNIARY LOSS, EVEN IF MDM OR ITS AFFILIATES HAVE BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. BUYER MAY NOT INSTITUTE ANY ACTION IN ANY FORM ARISING OUT OF ANY ORDER OR THESE SALES TERMS MORE THAN 12 MONTHS AFTER THE CAUSE OF ACTION HAS ARISEN. IN NO EVENT SHALL MDM’S LIABILITY UNDER ANY ORDER EXCEED THE PURCHASE PRICE OF THE PRODUCTS PURCHASED BY BUYER AND/OR GIVING RISE TO THE CLAIM.
FORCE MAJEURE: MDM shall not be liable for any delay in or impairment of performance resulting in whole or in part from fire, floods or other catastrophes, acts of God, strikes, lockouts or labor disruption, wars, riots or embargo delays, government allocations or priorities, raw material market conditions, shortages of transportation equipment, fuel, labor or materials, inability to procure supplies or raw materials, severe weather conditions, or any other circumstance or cause beyond the reasonable control of MDM (a “Force Majeure Event”). In the event of the occurrence of a Force Majeure event, MDM shall have the right, but not the obligation, to allocate product among its customers and potential customers in its sole discretion.
CANCELLATION. Orders cannot be canceled or modified by Buyer except with the express written consent of MDM.
TERMINATION. MDM may terminate any Order or any part thereof as allowed by these terms. Upon such termination, Buyer agrees to waive all claims for damages, including without limitation, any loss of anticipated profits, and to accept as its sole remedy for termination the reasonable incremental costs of obtaining substitute products of the same quantity and quality, provided such incremental costs do not exceed the Order price. Any claim for adjustment not asserted within 90 days from the date of such termination shall be deemed to have been waived by Buyer.
SETOFF; DEDUCTIONS: In no event is Buyer authorized to deduct any amounts from the amounts owed MDM unless specifically authorized in writing by MDM.
NOTICES. All notices must be in writing and will be deemed given only when sent by first class mail (return receipt requested), hand-delivered or sent by documented overnight delivery service to the party to whom the notice is directed, at its address indicated in the applicable Order or by written notice.
ENTIRE AGREEMENT. These Sales Terms, together with any Order, comprise the complete and final agreement between MDM and Buyer, and supersede all prior negotiations, proposals, representations, commitments, understandings or agreements between MDM and Buyer, either written or oral, on its subject. Any other representations or warranties made by any person, including employees or other agents of MDM, that are inconsistent with these Sales Terms shall be disregarded by Buyer and are not binding upon MDM.
MODIFICATIONS. No Order nor these Sales Terms may be modified or amended except in writing signed by both MDM and Buyer specifically referring to the applicable Order and/or these Sales Terms.
WAIVER. MDM’s failure to insist on performance of any of the terms or conditions in these Sales Terms or to exercise any right or privilege, or MDM’s waiver of any breach of these Sales Terms shall not waive any other terms, conditions or privileges, whether of the same or similar type.
SEVERABILITY. If any clause or provision in these Sales Terms is determined to be invalid, the remaining provisions of these Sales Terms will remain in full force and effect.
CHOICE OF LAW AND VENUE. All Orders shall be governed by and interpreted in accordance with the laws of the State of Texas without giving effect to its choice of law provisions. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply. Manufacture, shipment and delivery are subject to any prohibition, restriction, priority allocation regulation or condition imposed by or on behalf of the United States of America or any other governmental body with appropriate jurisdiction that may prevent or interfere with fulfillment of any Order. Litigation brought to contest disputes arising under any Order or these Sales Terms shall be brought only in the state or federal courts of the State of Texas sitting in Guadalupe County.
CUSTOMER SERVICE: All Orders are subject to these Sales Terms and to pricing confirmation, final acceptance and approval by MDM’s Customer Care Department by phone at 888-884-7515 or through MDM’s web store at www.ezdebride.com.