MaxAir Systems Standard Terms and Conditions of Official Offer
last updated November 4, 2020
1. Acceptance Limited to Terms of Offer
These “Standard Terms and Conditions of Official Offer” govern the sale of Products (“Product(s)”) between ‘Bio Medical Devices Intl, Inc. (BMDI) and its affiliates’ (“Seller”) and Buyer (“Buyer(s)”). These “Standard Terms and Conditions of Official Offer” are fully incorporated into the Offer.
Buyer’s acceptance of the Official Offer (“Offer”) presented by Seller to Buyer will be deemed accepted upon either: 1) Buyer’s submission of a purchase order matching Seller’s “Standard Terms and Conditions of Official Offer” and the written Offer that accompanies, attaches, or incorporates them; or 2) Buyer’s submission of another valid form of written acceptance matching Seller’s “Standard Terms and Conditions of Official Offer” and the written Offer that accompanies, attaches, or incorporates them.
This Offer expressly limits acceptance to the “Standard Terms and Conditions of Official Offer” and the written Offer that accompanies, attaches, or incorporates them, and hereby provides Buyer notification of objection to any different or additional terms and conditions contained in any Buyer response to the Offer that does not exactly match the “Standard Terms and Conditions of Official Offer” and the written Offer that accompanies, attaches, or incorporates them. Any purchase order, acknowledgment, or other communication issued by Buyer in connection with, or otherwise incorporated by Buyer in connection with, or otherwise incorporated by reference into, this Offer, or any order related thereto, will be for the purposes of describing in greater detail the goods to be provided or for record and accounting purposes only, and any terms or conditions set forth in such communication will not apply to this Offer or any order and will not be considered to be Buyer’s exceptions to the “Standard Terms and Conditions of Official Offer” and the written Offer that accompanies, attaches, or incorporates them, or any order. Any additional or different terms proposed by Buyer (including, without limitation, any terms contained in any document incorporated by reference into a purchase order or other form of acceptance) are objected to and rejected by Seller and will be deemed a material alteration hereof, unless expressly assented to in writing by Seller in writing. Neither Seller’s commencement of performance or delivery shall be deemed or construed as acceptance of Buyer’s supplemental or conflicting terms and conditions. Seller’s failure to object to conflicting or additional terms or conditions of Buyer will not change or add to these “Standard Terms and Conditions of Official Offer” and the written Offer that accompanies, attaches, or incorporates them.
If these “Terms and Conditions of Official Offer” and the written Offer that accompanies, attaches, or incorporates them, are construed as an acceptance, this acceptance is expressly conditioned on Buyer’s assent to any different or additional terms, express or implied, in these “Standard Terms and Conditions of Official Offer” and the written Offer that accompanies, attaches, or incorporates them.
After 24hrs. of accepting this Offer, Orders may not be cancelled or rescheduled without Seller’s written consent. Seller may in its sole discretion allocate Product among its Customers. Seller may designate certain Products and Services as non-cancelable, non- returnable (“NCNR”) and the sale of such Products shall be subject to the special terms and conditions contained in Seller’s Customer Acknowledgement or NCNR Product Form, which shall prevail and supersede any inconsistent terms and conditions contained herein or elsewhere.
The prices of the Products are those prices specified on the front of the invoice. Pricing for
undelivered Products may be increased in the event of an increase in Seller’s cost, change in market conditions or any other causes beyond the Seller’s reasonable control. The Offer will automatically expire in thirty (30) days from the date issued, or as otherwise stated in the Offer.
Unless otherwise agreed to in writing by Seller, all prices stated are exclusive of transportation and insurance costs, duties, and all taxes including federal, state and local sales, excise and value added, goods and services taxes, and any other taxes. Buyer agrees to indemnify and hold Seller harmless for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon. When applicable, transportation taxes, fees related to import/export, and other taxes shall appear as separate items on a separate Seller’s invoice.
Payment may be made by check, money order, credit card (Visa or MasterCard), or wire transfer (all fees are borne by the Buyer). Where Seller has extended credit to Buyer, terms of payment shall be net ten (10) days from date of invoice, without offset or deduction, unless stated differently in the Offer. On any past due invoice, Seller may impose interest at the rate of one and a half percent [1.5%] per month. If Buyer fails to make each payment when it is due, Seller reserves the right to change or withdraw credit and thereby suspend or cancel performance under any or all purchase orders or agreements in which Seller has extended credit to Buyer. In the event of default by Buyer, Seller shall be entitled to costs, fees, and expenses, including but not limited to recovery of attorney fees, court costs and fees, and collections costs. The maximum credit limit for any Buyer is $50,000. Payments must be paid on a per invoice basis. Net terms begin from the date the invoice is received. If applicable, where partial shipments on a single order are scheduled, separate invoices will be issued on a per shipment basis unless otherwise agreed to by the Parties in writing.
6. Delivery and Title
Domestic Offers are either F.O.B. factory Irvine, CA 92614 or F.O.B. factory Otay Mesa, CA 92154, with shipping location to be determined on an order by order basis by Bio-Medical Devices Intl. Inc. DBA MAXAIR Systems. International Offers are either FCA (Incoterms 2020) factory Irvine, CA 92614 or FCA (Incoterms 2020) factory Otay Mesa, CA 92154, with shipping location to be determined on an order by order basis by Bio-Medical Devices Intl. Inc. DBA MAXAIR Systems. Offers do NOT include freight and applicable taxes. Title and risk of loss pass to the Buyer upon delivery of the Product to the carrier. The Buyer will have five (5) days to inspect any goods shipped by Seller to Buyer. After five (5) days the goods will be deemed accepted.
Seller’s delivery dates are estimates only and Seller is not liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of the Seller, nor shall the carrier be deemed an agent of the Seller. A delayed delivery of any part of an Order does not entitle Buyer to cancel other deliveries related to said Order.
7. Returns, Refunds and Exchanges Policy
Return Material Authorization (RMA)
No Product may be returned directly to BMDI without first contacting BMDI Customer Service at 1-800-443-3842 or emailing Customer Service at email@example.com, for a Return Material Authorization (“RMA”) number. If it is determined that the Product may be defective, you will be given an RMA number and instructions for Product return. An unauthorized return, i.e. one for which an RMA number has not been issued, will be returned to you at your expense. Authorized returns are to be shipped prepaid and ensured to the address on the RMA in an approved shipping container. Please contact us for how to package your product for return.
Notification of Status of Decontamination (SOD)
A Status of Decontamination (SOD) certification, signed by the Buyer’s Institution Infection Control Director, must accompany all returned product(s) to Seller. This certification must be affixed to the outside of the box containing the returned product(s). The certification is to clearly state 1) the de-contamination status of the returned product(s) relative to their having been exposed to any pathogenic, toxic, or otherwise harmful contaminants, and 2) the list of contaminants the product(s) may have been exposed to, that could jeopardize the health of BMDI receiving personnel who would necessarily handle the product(s) during unpacking. If you are unsure if a product needs to be disinfected for shipment, please contact us.
Only products that are still under warranty, meet the warranty requirements in Section 7 of this agreement, and were originally shipped from BMDI or from an authorized supplier will be returned to BMDI. By a Customer returning products to BMDI, the Customer certifies that the products were purchased from BMDI and there has been no substitution of the product from another supplier, distributor or other source of the product. The return should be in the original packaging and in unused condition except if approved defective by a BMDI Customer Service representative via an RMA.
If the item(s) is in new condition and in the original packaging, you may exchange the item(s) for another item in the first 30 days after ship date. Defective item(s) may be exchanged/returned for the same item, and Customer will not be subject to a restocking fee in this case; however, if the item is found to have not been a defective item, the Customer will have to pay return shipping. Items purchased from BMDI that have been used or altered will not be accepted for exchange and as stated in the Non-Cancelable and Non- Returnable items section, items noted as NCNR cannot be exchanged.
Non-Cancelable and Non-Returnable Items
Products that are Sterilized, Special Order, or Custom Made are not cancelable/returnable items (“NCNR”). Some items cannot be returned if they are opened. Customer should contact BMDI at 1800-443-3842 or email firstname.lastname@example.org before making a purchase with questions regarding the return policy. Customer should read all messages on the www.maxair-systems.com product page and their quote before purchasing an item. Products listed as NCNR status, will be stated on the Quote/Product Page before you complete the order process.
Return Freight / Restocking Fee
Reasonable cancellation or restocking charges may include a minimum 20% restocking fee, this will be deducted from the Customer refund. BMDI does not refund the original shipping and handling that the Customer paid on the order. Customer must prepay the return freight charges and BMDI will not accept COD shipments.
BMDI will notify Customer upon receipt and inspection of returned item(s) and will advise of refund status. Upon approval of return and refund, BMDI will initiate a credit within 48 hours to the original method of payment. Credits to credit card can take ten (10) days to post to the account. Customer should contact Bio-Medical Devices Intl, Inc. with questions regarding returns. Please contact us at 1800-443-3842 or e-mail email@example.com.
8. Limited Warranty
The BMDI (Bio-Medical Devices Intl. Inc.) limited warranty provides that, subject to the following limitations, each MAXAIR Systems Helmet and Lithium Ion Battery will be free from defects in material and workmanship and will conform to BMDI's specification for the particular Product. This limited warranty is in effect for a period of one year (12 calendar months) from the date of shipment.
Within the limited warranty period, BMDI may elect which remedy, repair, replacement, or combination of the foregoing, to provide, in its sole discretion, as long as Buyer has not altered the said products in any way and has maintained said products in accordance with BMDI’s recommendations. BMDI shall have a reasonable time after determining that a defective Product exists to repair or replace a defective Product. BMDI's replacement Product under this limited warranty will be manufactured from new and serviceable used parts. BMDI's limited warranty applies to repaired or replaced Products for the balance of the applicable period of the original warranty or ninety (90) days from the date of shipment of a repaired or replaced Product, whichever is longer.
9. Limitation of Liabilities and Damages
BMDI’s ENTIRE LIABILITY FOR ANY DEFECTIVE PRODUCT SHALL IN NO EVENT EXCEED THE PURCHASE PRICE FOR THE DEFECTIVE PRODUCT.
THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE FACE OF THE BMDI LIMITED WARRANTY. BMDI DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS, INCLUDING: ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. THIS WARRANTY IS THE EXCLUSIVE REMEDY OF BUYER WITH RESPECT TO ANY CLAIM RELATING TO THE MAXAIR SYSTEMS HELMET AND LI-ION BATTERY, WHETHER ARISING AT LAW OR AT EQUITY, OTHER THAN CLAIMS FOR PERSONAL INJURY PROXIMATELY CAUSED BY A DEFECT IN THESE ITEMS.
BUYER SHALL NOT BE ENTITLED TO, AND SELLER SHALL NOT BE LIABLE FOR, LOSS OF PROFITS OR REVENUE, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEADS, BUSINESS INTERRUPTION COST, LOSS OF DATA, REMOVAL OR REINSTALLATION COSTS, INJURY TO REPUTATION OR LOSS OF BUYERS, PUNITIVE DAMAGES, IPR INFRINGEMENT, LOSS OF CONTRACTS OR ORDERS OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE. BUYER’S RECOVERY FROM SELLER FOR ANY CLAIM SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE AFFECTED PRODUCTS IRRESPECTIVE OF THE NATURE OF THE CLAIM WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE. BUYER WILL INDEMNIFY, DEFEND, AND HOLD SELLER HARMLESS FROM ANY CLAIMS BASED ON:
- SELLER’S COMPLIANCE WITH BUYER’S DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS;
- MODIFICATION OF ANY PRODUCTS BY ANYONE OTHER THAN SELLER; or
- USE IN COMBINATION WITH OTHER PRODUCTS
10. Export Control
Buyer certifies that it will be the recipient of the Products to be delivered by Seller. Buyer understands that the associated NIOSH approvals, CE design, and technical data (“products”) listed on their Purchase Order includes items that are governed by the U.S. Export Administration Regulations (“EAR”) and by the U.S. Foreign Assets Control Regulations (“OFAC”). The Buyer understands that its sale or distribution of said products may constitute exports or re-exports, and as such, must be in accordance with the requirements administered by Bureau of Industry and Security, Department of Treasury, and Department of State. It is understood that the country of ultimate destination, commodity classification, end-user, or end-use for any said products, could affect the applicable license requirements and exportability. The Buyer agrees to consult various resources, such as the EAR and OFAC, by the U.S. Department of Commerce’s Bureau of Industry and Security’s (“BIS”) Export Counseling Division, and other appropriate Government Sources to ensure that the sales and distribution of said products, is processed in accordance with all applicable laws. The Seller will not transfer any export-controlled products to a non “U.S. Person” without the proper authority of the United States Government, and the Buyers written approval.
Buyer agrees to comply with all Customs and International Trade Laws. Buyer covenants that it shall not directly or indirectly sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from Seller under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. Buyer agrees to indemnify, to the fullest extent permitted by law, Seller from and against any fines or penalties that may arise as a result of Buyer’s breach of this provision. This export control clause, Paragraph Six (6), shall survive termination or cancellation of this Agreement.
Buyer agrees to comply with all applicable laws and regulations in the exercise and performance of its rights and obligations under this Agreement, including the United States Foreign Corrupt Practices Act of 1977, the U.K. Bribery Act 2010, the Inter-American Convention Against Corruption, and any other Applicable Anti-Bribery or Anti-Corruption Law, rule or regulation of similar purposes and scope to which Buyer is subject, and will not engage in any illegal or unethical practices.
“Customs and International Trade Laws” means any domestic Law, license, directive, award or other decision or requirement, including any amendments, having the force or effect of law, of any Governmental Authority, concerning (a) the importation, exportation, re-exportation or deemed exportation of products, technical data, technology and/or services, and the terms and conduct of transactions and making or receiving of payment related to such importation, exportation, re-exportation or deemed exportation or (b) trade, economic or financial sanctions, embargoes or similar measures against individuals, entities or countries, including, with respect to (a) or (b) as applicable, the Tariff Act of 1930, as amended, and other Laws and programs administered or enforced by the U.S. Department of Commerce, U.S. International Trade Commission, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement and their predecessor agencies; the Export Administration Act of 1979, as amended; the Export Administration Regulations, including related restrictions with regard to transactions involving persons and entities on the U.S. Department of Commerce Denied Persons List or Entity List; the Arms Export Control Act, as amended; the International Traffic in Arms Regulations, including related restrictions with regard to transactions involving persons and entities on the Debarred List; the International Emergency Economic Powers Act, as amended; the Trading With the Enemy Act, as amended; the embargoes and restrictions administered by OFAC; orders of the president or head of state for any country regarding embargoes and restrictions on transactions with designated countries and entities, including persons and entities designated on OFAC’s list of Specially Designated Nationals and Blocked Persons; the Antiboycott regulations administered by the U.S. Department of Commerce; and the antiboycott regulations administered by the U.S. Department of the Treasury.
“Governmental Authority” means: (a) any federal, state, provincial, local, municipal, foreign or international government or governmental authority, quasi-governmental entity of any kind, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court, tribunal, organization, arbitrator or arbitral body (public or private), (b) any self-regulatory organization (including any stock exchange), or (c) any subdivision, department or branch of any of the foregoing.
“Government Instrumentality” means any public international organization or enterprise partially or wholly owned or controlled by a Governmental Authority.
“Government Official” means any official, employee or representative of any Government Authority or Government Instrumentality.
“Governmental Order” means any decision, ruling, order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Authority.
“Applicable Anti-Bribery or Anti-Corruption Law” means the United States Foreign Corrupt Practices Act of 1977, the U.K. Bribery Act 2010, the Inter-American Convention Against Corruption, and any other applicable anti-bribery or anti-corruption law, rule or regulation of similar purposes and scope to which the Business is subject.
11. Force Majeure
Seller is not liable for failure to fulfill its obligations for any accepted Order or for delays in delivery due to causes beyond Seller’s reasonable control including, but not limited to, acts of God, natural or artificial disaster, riot, war, strike, delay by carrier, shortage of Product, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, acts of terrorism, delays in transportation or inability to obtain labor, over a 10% increase in material costs, or Products through its regular sources, which shall be considered as an event of force majeure excusing Seller from performance and barring remedies for non-performance. In an event of force majeure condition, the Seller’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure condition without subjecting Seller to any liability or penalty. Seller may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to the Buyer.
If technical assistance or advice are offered or given to Buyer, such assistance or advice is given free of charge and only as an accommodation to Buyer. Seller shall not be held liable for the content or Buyer’s use of such technical assistance or advice nor shall any statement made by any of Seller’s representatives in connection with the Products or Services constitute a representation or warranty, express or implied.
12. General Provisions
i. Parties’ Relationship.
In the performance of its obligations under this Agreement, Buyer is an independent contractor to Seller. Neither Buyer nor its employees shall act or hold themselves out to third parties as a partner, employee, or agent of Seller in the provision of patient services under this Agreement. Seller will not withhold income tax or Social Security tax on behalf of the Buyer’s employees, subcontractors, or agents and none of the foregoing will have any claim under this Agreement or otherwise against Seller for vacation pay, sick leave, unemployment insurance, worker’s compensation, retirement benefits, disability benefits, or employee benefits of any kind. Buyer will have exclusive responsibility for the payment of all such taxes and arrangement for insurance coverage and will discharge such responsibility fully as applicable to its employees. Neither the Buyer nor its employees will incur any financial obligation on behalf of Seller without prior written approval of Seller except as otherwise provided herein.
Neither Party shall deny services to or otherwise discriminate in the delivery of services hereunder based on race, color, religion, sex, age, sexual preference, national origin, ancestry, physical or mental handicap or financial status or any other classes that are or may be protected under state or federal law.
Any notices pertaining to this Agreement shall be deemed made on the day: personally delivered in writing, mailed by certified mail (postage prepaid), or emailed to the other Party. The physical address(es) and email address(es) found in the Offer or purchase order shall be considered the only valid addresses for giving notice to.
The invalidity or unenforceability of any provisions of this Agreement will not affect the validity or enforceability of any other provision.
Neither Party may assign this Agreement without the prior written consent of the other Party, provided, however, that Seller may assign this Agreement (and the rights and duties hereunder) to another entity that either controls Seller or is under common control with Seller, or buys all or substantially all of the assets of Seller, without obtaining the prior written consent of the Buyer.
Any Amendments to this Agreement will be effective only if in writing and signed by both parties.
vii. Entire Agreement.
This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof.
viii. No Waiver.
No waiver of a breach of any provision of this Agreement shall be construed to be a waiver of any breach of any other provision. No delay in acting with regard to any breach of any provision of this Agreement shall be construed to be a waiver of such breach.
ix. Authorization for Agreement.
The execution and performance of this Agreement by Seller and Buyer has been duly authorized by all necessary laws, resolutions or corporate action, and this Agreement constitutes the valid and enforceable obligations of the Parties in accordance with its terms.
The Parties agree to keep the financial terms (but not the existence) of this arrangement strictly confidential. Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights, and/or user licenses.
xi. Compliance With Laws.
The Parties represent that they will use all reasonable and appropriate efforts to assure that those activities required or undertaken by them, their respective employees, representatives and contracted agents pursuant to the terms of this Agreement are in compliance with: (i) all applicable federal, state and local laws, regulations and rules; statutes that specifically apply to health care providers, including (as they are commonly known) the Anti-kickback statute and the Stark prohibitions as amended on physician ownership and self-referrals; and all employment and labor relations statutes, including affirmative action and non-discrimination statutes, as applicable; and (ii) all applicable regulatory or accrediting agencies (e.g. the Joint Commission) with jurisdiction over Seller; and (iii) any requirements of any commercially reasonable financing arrangement undertaken by Seller; and (iv) the policies, rules and regulations of Seller, including the Seller Code of Conduct.
xii. Choice of Law and Forum.
The covenants, agreements and remedies provided for in this Agreement are in addition to, and are not to be considered as a replacement for or limited by, the rights and remedies otherwise available to Principal. This Agreement and all performance hereunder shall be governed by and construed in accordance with the laws of the State of California, without regard to conflicts of laws. The exclusive forum for all disputes arising out of or relating to this Agreement shall be an appropriate state or federal court sitting in Orange County in the State of California.
xiii. Federal Exclusions.
Buyer and Seller each represent and warrant that it is not listed by a federal agency as excluded, debarred, suspended, or otherwise ineligible to participate in or bill and collect from federal programs, including Medicare and Medicaid, and is not listed, nor has any current reason to believe that during the term of this Agreement will be so listed, on the HHS-OIG Cumulative Sanctions Report or the General Services Administration List of Parties Excluded from Federal Procurement and Non-Procurement Programs. Each Party further represents and warrants that it is not listed on the Specially Designated National and Blocked Persons list by the Office of Foreign Assets Control. Either Party may terminate this Agreement, upon written notice to the other, in the event that either Party or any person providing Services under the terms of this Agreement, as appropriate, is listed on the HHS-OIG Cumulative Sanctions Report or on the General Services Administration List of Parties Excluded from Federal Procurement and Non-Procurement Programs, or on the Specially Designated Nationals and Blocked Persons list by the Office of Foreign Assets Control or has its Medicare billing privileges revoked.
xiv. Access to Records.
Upon the written request of the Secretary of Health and Human Services or the Comptroller General or any of their duly authorized representatives, the Buyer will make available those contracts, books, documents and records necessary to verify the nature and extent of the costs of providing services under this Agreement. Such inspection shall be available up to four (4) years after the rendering of such services. If the Buyer carries out any of the duties of this Agreement through a subcontract with a value of ten thousand dollars ($10,000) or more over a twelve (12) month period, then such subcontract must contain a substantially similar clause allowing HITS access to records. This section is included pursuant to and is governed by the requirements of Public Law 96-499 §952 (Section 1861(v)(1) of the Social Security Act) and the regulations promulgated thereunder.
13. Statement for Customer Usage of Website Content
Bio Medical Devices Intl., Inc. DBA MAXAIR® Systems does not make any representation or warranties with respect to the accuracy, applicability, fitness, or completeness of any Content found on its website or in any MAXAIR Systems' released publications. Content includes but is not limited to text, videos, photos, and graphics, accessible on the MAXAIR Systems' website (maxair-systems.com) or found within a MAXAIR Systems' released publication. All Content is not intended to be a substitute for MAXAIR System's NIOSH approved User Instructions. Each Content item is designed to be viewed in its entirety, so its proper context is preserved. The Content is not intended to be a substitute for guidance in the selection and safe and effective use of appropriate PPE which should be found in the using organizations' regulatory approved Respiratory Protection Program documentation.
MAXAIR Systems' customers are not required to request approval to use Content for their own, in-house training and educational purposes so long as they agree to and follow the stipulations herein and agree to leave all Content unaltered from its original state. Using organizations are also responsible for ensuring any Content gathered from an offsite MAXAIR Systems' released publication is current and was in fact released by MAXAIR Systems. MAXAIR Systems hereby disclaims any and all liability to any party for any direct, indirect, implied, punitive, special, incidental or other consequential damages arising directly or indirectly from any use of the Content, which is provided as is, and without warranties.