The Physicians Resource for Medical Equipment, Inc.
Standard Terms and Conditions for Use and Access of Website
Use of The Physicians Resource for Medical Equipment, Inc. (hereinafter, the "Company") website signifies your agreement with the following terms and conditions of use. The terms and conditions of use as well as the content of this website are subject to change at any time without prior notice.
The Company may change these terms and conditions of use at any time, without prior notice. If you access or use the website after the Company posts a change, you accept that change. If you do not accept the change, do not access or use the website. You should check these terms and conditions of use periodically.
Access and Use of This Website The Company grants you a limited license to access and use the website, including to display, copy, distribute and download its content only for your personal, non-commercial use and provided that you do not modify the website, its content or any copyright or other proprietary notices. This license terminates automatically if you breach any of these terms and conditions of use. Upon termination, you must immediately destroy all copies of the website in your possession, whether maintained in electronic or paper format.
Unauthorized use of the website or any content may violate copyright laws, trademark laws, the laws of privacy and publicity and communications regulations and statutes.
Restrictions on Use of the Website Except as expressly authorized above, you may not copy, modify, distribute, download, display, transfer, post or transmit the website or its content in any form without the Company's prior, written permission.
The following activities are also expressly prohibited without the Company's prior, written permission: Any non-personal or commercial use; use of any robot, spider, other automatic device or manual process to monitor or copy the website or any of its content; "mirroring" the website or any content on any other server; collection or use of product listings, descriptions or prices for a supplier of competitive or comparable prices; and any action that imposes an unreasonable or disproportionately large load on the website or otherwise interferes with its functioning.
Accuracy of Information and Disclaimer of Warranty The Company has made every effort to present the content of the website accurately, but additions, deletions and changes may occur. Content on the website is provided "as is"; neither the Company nor its representatives make any representation ro warranty with respect to the content.
Although every effort has been made to provide complete and accurate information, the Company and its representatives specifically disclaim to the fullest extent permitted by law, and make no warranties, express or implied, relating to the website or its content, including, but not limited to, implied warranties of merchandise ability, completeness, timeliness, correctness, non-infringement or fitness for any particular purpose. The Company assumes no liability or responsibility for any errors or omissions in the information contained in the website or the operation of the website.
By using the Company website, you assume all risks associated with the use of this site including any risk of your computer, software or data being damaged by a virus, software, or any other files which might be transmitted or activated via the Company website. The Company expressly disclaims any liability for any special, incidental, or consequential damages, including without limitation, lost revenues, or lost profits, resulting from the use or misuse of the information contained in the website.
Limitation of Liability Under no circumstances will the Company or its affiliates have any liability with respect to any claims or damages (whether or indirect, special incidental, consequential or punitive), as a result of your access or use of (or inability to access or use) this website or its content even if they have been advised of the possibility of such damages. Your access and use this website at your own risk.
Indemnification You agree to defend, indemnify and hold the Company harmless from and against any and all claims, damages, costs including attorneys' fees, arising from or related to your use of the website.
Links to other Websites This website contains links to other Internet sites and information provided by persons not affiliated with the Company. Such links are not endorsements or referrals of any products, services or information contained in such websites, and no information in any such web site has been endorsed or approved hereby. No claims, promises, or guarantees about the completeness, accuracy, currency, content or quality of information contained in the links to and from this web site are made. Information provided and opinions expressed by others do not necessarily represent the opinion of the Company. The Company expressly disclaims any and all liability resulting from reliance on such information or opinions.
The Company does not review or control third party websites that link to or from this website, is not responsible for their content, and does not represent that their content is accurate or appropriate. Your use of such third party site is on your own initiative and at your own risk and may be subject to the other site's terms of use.
Miscellaneous THESE TERMS AND CONDITIONS WILL BE GOVERNED BY THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN LUZERNE COUNTY, PENNSYLVANIA, AND CUSTOMER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. IF IT SHOULD BECOME NECESSARY FOR THE COMPANY TO ENFORCE ANY OF THE TERMS OF THIS AGREEMENT BY INITIATING LEGAL ACTION, THE CUSTOMER SHALL PAY ALL COLLECTION AND/OR LITIGATION COSTS, PLUS REASONABLE ATTORNEYS' FEES OF SUCH ACTION.
Privacy Policy At the Company, we are committed to safeguarding the privacy of our visitors. Our business relationships are built on trust and we will never do anything to violate that trust. When you visit our website, no personally identifying information about you is gathered, unless you choose to voluntarily provide such information.
The only information we gather are website stats to help us continually improve the usability of our website such as page views, time spent on each page, etc. We may also collect information about your computer or other access device (such as IP address and domain) to mitigate risk and for fraud prevention purposes. The Company does not rent, trade, loan, or sell your personal information, or any other information which may identify you, to third parties.
Email Announcements You may opt-in to receive periodic email newsletters from The Company. At any time, you may opt-out from receiving these email announcements and you will be permanently removed from the mailing list. All information collected is stored on a secure, encrypted server. We will never sell, barter, or trade your email address with any third party.
Cookies We send a "session cookie" to your computer when you log in to your account. This type of cookie helps us to recognize you if you visit multiple pages on our site during the same session, so that we don't need to ask you for your password on each page. Once you log out or close your browser, this cookie expires and no longer has any effect. You are free to decline our cookies if your browser permits, but doing so may interfere with your use of our website.
The Physicians Resource for Medical Equipment, Inc. Standard Terms and Conditions for Sales
The following Terms and Conditions constitute a binding contract between you, the "Customer", and The Physician's Resources for Medical Equipment, Inc. (the "Company") and are referred to hereinafter as either "Terms and Conditions" or this "Agreement". By making a purchase from or placing an order with the Company in any manner, including through the Company's Website (the "Site"), by accepting delivery of products from the Company identified in any invoice, statement of work or other documentation provided in connection with sales of products or services to you, or otherwise requesting products ("Products") or engaging the Company to perform or procure any Services (as this and all capitalized terms are defined herein), you agree to be bound by this Agreement unless you and the Company have signed a separate agreement altering these terms and conditions, in which case the separate agreement will govern. These Terms and Conditions are subject to change without prior notice, except that the Terms and Conditions posted on the Site at the time you places an order or sign a statement of work will govern the order in question, unless otherwise agreed in writing by the Company and Customer.
Customer consents to receiving electronic records, which may be provided via an Internet web browser or e-mail application connected to the Internet; individual consumers may withdraw consent to receiving electronic records or have the record provided in non-electronic form by contacting the Company. Electronic signatures (or copies of signatures sent via electronic means) are the equivalent of written and signed documents.
Additional or different terms and conditions contained in any purchase order generated by Customer will be null and void. Modification of any of these Terms and Conditions directed by Customer shall only become binding if consented to in writing by the Company. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these Terms and Conditions or any purchase order or invoice, or any document in electronic or written form that is signed and delivered by each of the parties for the performance of Services. This Agreement contains the entire understanding of the parties with respect to the matters contained herein and supersedes and replaces in its entirety any and all prior communications and contemporaneous agreements and understandings, whether oral, written, electronic or implied, if any, between the parties with respect to the subject matter hereof.
Returns Returns will not be accepted without prior authorization from the Company. Contact must be made within five (5) business days from delivery of merchandise. When returning an item, please contact our customer service department for a return authorization code (hereinafter "Return Code"). Include a copy of your invoice and Return Code with returned items to ensure proper credit to your account. The Company will not accept returns of special order items, items that have been marked or engraved, items not returned in original packaging, items that were sold for resale, items determined not to be in resalable condition, sterile items that have been opened, and merchandise that has been delivered to you twenty (20) or more days from the date merchandise is shipped back to the Company. The Company will not accept return of any "one-time use" items, including but not limited to, opened consumables as defined by the Company (including for example, electrodes, batteries, cables and lead wires), opened CPR kits and opened CDs, DVDs, and manuals. If returning diagnostic or therapy related devices, the price of used accessories will be deducted from the refund. FDA tracked devices are not returnable if more than twenty (20) days has passed since original delivery date. All returned items must be sent freight pre-paid and received in new, resalable condition in original packaging. Returns, if approved, may be subject to restocking and or handling charges. Shipping costs for return items are solely at customer's expense. All returns should be insured and must be packaged as to avoid damage in shipping, and shipped via nationally recognized overnight courier; items damaged in shipping will not be credited. Send returns to: 306 Country Club Drive, Mountain Top, Pennsylvania 18707.
If the Company makes an error in your order, or your receive damaged equipment, please call us within twenty-four (24) hours of receipt at (800) 866-6689.
FDA-Rated Devices Before the Company is able to ship any FDA-rated devices to you (such as ET tubes, Nasal Cannulas, Non-Rebreather Masks, intravenous catheters, sets, defibrillators, infusion pumps, etc.) we may require that you provide authorization from your medical director or provide your state license number. To comply with applicable FDA regulations we request that you contact us and request a medical authorization form and fax or mail it back to us.
Governing Law THESE TERMS AND CONDITIONS, ANY STATEMENTS OF WORK, THE SERVICES HEREUNDER AND ANY SALE OF PRODUCTS HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN LUZERNE COUNTY, PENNSYLVANIA, AND CUSTOMER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. IF IT SHOULD BECOME NECESSARY FOR THE COMPANY TO ENFORCE ANY OF THE TERMS OF THIS AGREEMENT BY INITIATING LEGAL ACTION, THE CUSTOMER SHALL PAY ALL COLLECTION AND/OR LITIGATION COSTS, PLUS REASONABLE ATTORNEYS' FEES OF SUCH ACTION. Except in the case of nonpayment, neither party may institute any action in any form arising out of these Terms and Conditions within the shorter of (i) more than two (2) years after the cause of action has arisen, or (ii) the applicable statute of limitation to such action. The rights and remedies provided Company under these Terms and Conditions are cumulative, are in addition to, and do not limit or prejudice any other right or remedy available at law or in equity.
Risk of Loss If Customer provides Company with Customer's carrier account number or selects a carrier other than a carrier that regularly ships for Company, title to Products and risk of loss or damage during shipment pass from Company to Customer upon delivery to the carrier (F.O.B. Origin, freight collect). For all other shipments, title to Products and risk of loss or damage during shipment pass from Company to Customer upon delivery to the specified destination (F.O.B. Destination, freight prepaid and added). Notwithstanding the foregoing, title to any licensed software will remain with the applicable licensor(s), and Customer's rights therein are contained in the license agreement between such licensor(s) and Customer. A purchase money security interest is retained in the Products to secure payment in full. Customer authorizes Company to file a financing statement reflecting such security interest, and, if requested, Customer will record such purchase money security interest on its books.
Services Customers may order services (collectively, "Services") from or through Company from time to time. Certain Services, including, but not limited to, extended warranty service by manufacturers, are sold by Company as a distributor or sales agent ("Third Party Services").
In the case of Third Party Services, the third party shall be the party responsible for providing the services to the Customer and Customer will look solely to the third party for any loss, claims or damages arising from or related to the provision of such Third Party Services. Customer hereby releases Company and the entities that control, are controlled by, or are under common control with Company ("Affiliates") from any and all claims arising from or relating to the purchase or provision of any such Third Parties Services. Any amounts, including, but not limited to, taxes, associated with Third Party Services which may be collected by Company will be collected solely in the capacity as an independent sales agent.
Where Services are ordered in a statement of work and/or purchase order, each statement of work and/or purchase order hereby incorporates these Terms and Conditions and constitutes a separate agreement with respect to the Services performed. In the event of an addition to or a conflict between any term or condition of the statement of work and these Terms and Conditions, the terms and conditions of this Agreement will control, except as expressly amended in the applicable statement of work and/or purchase order by specific reference to this Agreement. Each such amendment will be applicable only with respect to such statement of work and/or purchase order and not to future statements of work and/or purchase orders. Changes to the scope of the Services described in a statement of work or purchase order will be made only in a writing executed by authorized representatives of both parties. Company will have no obligation to commence work in connection with any such change, unless and until the change is agreed upon in that writing executed by both parties. All such changes to the scope of the Services will be governed by these Terms and Conditions and the applicable statement of work and/or purchase order. Each statement of work and/or purchase order may be signed in separate counterparts each of which shall be deemed an original and all of which together will be deemed to be one original.
Cooperation In addition to any specific Customer duties set forth in any applicable order form, Customer agrees to cooperate with Company in connection with performance of the delivering Products and Services by providing (i) timely responses to Company's inquiries and requests for approvals and authorizations, (ii) reasonable access to any information or materials reasonably requested by Company which are necessary or useful as determined by Company in connection with providing the Products or Services, including, but not limited to, physical access to Customer's location(s), and (iii) any Required Consents necessary for Company to provide the Services. "Required Consents" means consents or approvals required to give Company, its affiliates, and its and their subcontractors the right or license to access, use and modify all data and third party products. Customer acknowledges and agrees that the Products and Services are dependent upon the completeness and accuracy of information provided by Customer and the knowledge and cooperation of the agents, employees or subcontractors ("Personnel") engaged or appointed by Customer who are selected by Customer to work with Company.
Company will follow all reasonable Customer security rules and procedures, as communicated in writing by Customer to Company from time to time.
Access When the Services are performed or Product's installed at Customer's premises, Company will attempt to perform such Services or install Product's within Customer's normal business hours unless otherwise jointly agreed to by the parties. Customer will provide Company access to Customer's Personnel and any other Customer resources (and when Services or Products are provided at another location designated by Customer, the staff and resources at such location) that Company determines are useful or necessary for Company to provide the Services or install the Products.
Payment Orders are not binding upon Company until accepted by Company. Customer agrees to pay the total purchase price for the Products plus shipping (to the extent shipping is not prepaid by Customer), including shipping charges that are billed to Company as a result of using Customer's carrier account number. Terms of payment are within Company's sole discretion. In connection with providing Services or Products, Customer will pay for the Services and/or Products in the amounts and in accordance with any payment schedule set forth in the applicable invoice. If no payment schedule is provided, Customer will pay for goods and/or services as invoiced by Company. Invoices are due and payable within the time period specified on the invoice, measured from the date of invoice, subject to continuing credit approval by Company. Company, or any of its Affiliates on behalf of Company may issue an invoice to Customer. Company may invoice Customer separately for partial shipments, and Company may invoice Customer for all of the Services and/or Products or any portion thereof. Customer agrees to pay interest on all past-due sums at the lower of fifteen percent (15%) per year or the highest rate allowed by law. Customer will pay for, and will indemnify and hold Company and its Affiliates harmless from, any applicable sales, use, transaction, excise or similar taxes and any federal, state or local fees or charges (including, but not limited to, environmental or similar fees), imposed on, in respect of or otherwise associated with any statement of work, the Products or the Services. Customer must claim any exemption from such taxes, fees or charges at the time of purchase and provide Company with the necessary supporting documentation. In the event of a payment default, Customer will be responsible for all of Company's costs of collection, including, but not limited to, court costs, filing fees and attorneys' fees. In addition, if payments are not received as described above, Company reserves the right to suspend Services until payment is received.
Except as otherwise specified on an applicable statement of work or invoice, Customer may be required to reimburse Company for reasonable out-of-pocket expenses incurred by Company in connection with the performance of the Services or provision of Products, including, but not limited to, travel expenses.
Warranties Customer understands that Company is not the manufacturer of the Products purchased by Customer hereunder and the only warranties offered are those of the manufacturer, not Company or its Affiliates, unless otherwise stated. In purchasing the Products, Customer is relying on the manufacturer's specifications only and is not relying on any statements, specifications, photographs or other illustrations representing the Products that may be provided by Company or its Affiliates. COMPANY AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES EITHER EXPRESS OR IMPLIED, RELATED TO PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF NON-INFRINGEMENT, OR ANY WARRANTY RELATING TO THIRD PARTY SERVICES. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY MANUFACTURER'S WARRANTY. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIVE OF COMPANY OR OF ITS AFFILIATES IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY ON BEHALF OF COMPANY OR ANY OF ITS AFFILIATES THAT IS NOT IN THIS AGREEMENT OR IN A STATEMENT OF WORK OR INVOICE EXPRESSLY AMENDING COMPANY'S WARRANTY. Customer expressly waives any claim that it may have against Company or its Affiliates based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property rights (each a "Claim") with respect to any Product and also waives any right to indemnification from Company or its Affiliates against any such Claim made against Customer by a third party.
Company warrants that the Services will be performed in a good and workmanlike manner. Customer's sole and exclusive remedy and Company's entire liability with respect to this warranty will be, at the sole option of Company, to either (a) use its reasonable commercial efforts to re-perform or cause to be re-performed any Services not in substantial compliance with this warranty or (b) refund amounts paid by Customer related to the portion of the Services not in substantial compliance; provided, in each case, Customer notifies Company in writing within five (5) business days after performance of the applicable Services. EXCEPT AS SET FORTH HEREIN, OR IN ANY STATEMENT OF WORK OR INVOICE THAT EXPRESSLY AMENDS COMPANY'S WARRANTY, AND SUBJECT TO APPLICABLE LAW, COMPANY MAKES NO OTHER, AND EXPRESSLY DISCLAIMS ALL OTHER, REPRESENTATIONS, WARRANTIES, CONDITIONS OR COVENANTS, EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DURABILITY, TITLE, ACCURACY OR NON-INFRINGEMENT) ARISING OUT OF OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY RELATING TO THIRD PARTY SERVICES, ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN PERFORMING SERVICES AND ANY WARRANTY CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIVE OF COMPANY OR OF ITS AFFILIATES IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY ON BEHALF OF COMPANY OR ANY OF ITS AFFILIATES THAT IS NOT IN THIS AGREEMENT OR IN A STATEMENT OF WORK EXPRESSLY AMENDING COMPANY'S WARRANTY.
Company will not be responsible for and no liability shall result to Company or any of its Affiliates for any delays in delivery or in performance which result from any circumstances beyond Company's reasonable control, including, but not limited to, Product unavailability, carrier delays, delays due to fire, severe weather conditions, failure of power, labor problems, acts of war, terrorism, embargo, acts of God or acts or laws of any government or agency. Any shipping dates or completion dates provided by Company or any purported deadlines contained in a statement of work or any other document are estimates only.
Pricing Information; Availability Disclaimer Company reserves the right to make adjustments to pricing, Products and Service offerings for reasons including, but not limited to, changing market conditions, Product discontinuation, Product unavailability, manufacturer price changes, supplier price changes and errors in advertisements. All orders are subject to Product availability and the availability of Personnel to perform the Services. Therefore, Company cannot guarantee that it will be able to fulfill Customer's orders. If Services are being performed on a time and materials basis, any estimates provided by Company are for planning purposes only.
Limitation of Liability UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL COMPANY, ITS AFFILIATES OR ITS OR THEIR SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS , EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH CUSTOMER'S IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BY COMPANY OR ITS AFFILIATES BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE PRODUCTS OR SERVICES; OR (D) ANY UNAVAILABILITY OF THE PRODUCT FOR USE OR ANY LOST, DAMAGED OR CORRUPTED DATA OR SOFTWARE. IN THE EVENT OF ANY LIABILITY INCURRED BY COMPANY OR ANY OF ITS AFFILIATES, THE ENTIRE LIABILITY OF COMPANY AND ITS AFFILIATES FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM OR THE SPECIFIC SERVICES GIVING RISE TO THE CLAIM; OR (B) $10,000.00.
Limited License Customer's sole rights to the work product, materials and other deliverables to be provided or created (individually or jointly) in connection with any Services, including but not limited to, all inventions, discoveries, methods, processes, formulas, ideas, concepts, techniques, know-how, data, designs, models, prototypes, works of authorship, computer programs, proprietary tools, methods of analysis and other information (whether or not capable of protection by patent, copyright, trade secret, confidentiality, or other proprietary rights) or discovered in the course of performance of this Agreement that are embodied in such work or materials ("Work Product") will be, upon payment in full, a non-transferable, non-exclusive, royalty-free license to use such Work Products solely for Customer's internal use. Customer will have no ownership or other property rights thereto and Customer shall have no right to use any such Work Product for any other purpose whatsoever. Customer acknowledges that Company may incorporate intellectual property created by third parties into the Work Product ("Third Party Intellectual Property"). Customer agrees that its right to use the Work Product containing Third Party Intellectual Property may be subject to the rights of third parties and limited by agreements with such third parties.
Confidential Information Each party anticipates that it may be necessary to provide access to information of a confidential nature of such party, the Affiliates or a third party (hereinafter referred to as "Confidential Information") to the other party in the performance of this Agreement and any statement of work. "Confidential Information" means any information or data in oral, electronic or written form which the receiving party knows or has reason to know is proprietary or confidential and which is disclosed by a party in connection with this Agreement or which the receiving party may have access to in connection with this Agreement, including but not limited to the terms and conditions of each statement of work. Confidential Information will not include information which: (a) becomes known to the public through no act of the receiving party; (b) was known to the receiving party, or becomes known to the receiving party from a third party having the right to disclose it and having no obligation of confidentiality to the disclosing party with respect to the applicable information; or (c) is independently developed by agents, employees or subcontractors of the receiving party who have not had access to such information. To the extent practicable, Confidential Information should be clearly identified or labeled as such by the disclosing party at the time of disclosure or as promptly thereafter as possible, however, failure to so identify or label such Confidential Information will not be evidence that such information is not confidential or protectable.
Each party agrees to hold the other party's Confidential Information confidential for a period of three (3) years following the date of disclosure and to do so in a manner at least as protective as it holds its own Confidential Information of like kind but to use no less than a reasonable degree of care. Disclosures of the other party's Confidential Information will be restricted (i) to those individuals who are participating in the performance of this Agreement or the applicable statement of work and need to know such Confidential Information for purposes of providing or receiving the Products or Services or otherwise in connection with this Agreement or the applicable statement of work, or (ii) to its business, legal and financial advisors, each on a confidential basis. Each party agrees not to use any Confidential Information of the other Party for any purpose other than the business purposes contemplated by this Agreement and the applicable statement of work. Upon the written request of a party, the other party will either return or certify the destruction of the Confidential Information of the other party.
If a receiving party is required by law, rule or regulation, or requested in any judicial or administrative proceeding or by any governmental or regulatory authority, to disclose Confidential Information of the other Party, the receiving party will give the disclosing party prompt notice of such request so that the disclosing party may seek an appropriate protective order or similar protective measure and will use reasonable efforts to obtain confidential treatment of the Confidential Information so disclosed.
Termination Either party may terminate performance of a Service or a statement of work for cause if the other party fails to cure a material default in the time period specified herein. Any material default must be specifically identified in a written notice of termination. After written notice, the notified party will, subject to the provision of warranties herein, have thirty (30) days to remedy its performance except that it will only have ten (10) days to remedy any monetary default. Failure to remedy any material default within the applicable time period provided for herein will give cause for immediate termination, unless such default is incapable of being cured within the time period in which case the defaulting party will not be in breach (except for Customer's payment obligations) if it used its reasonable efforts to cure the default. In the event of any termination of the Services or a statement of work, Customer will pay Company for all Services performed and expenses incurred up to and including the date of termination, plus any termination fee if one is set forth in the applicable statement of work. In such event, Customer will also pay Company for any out-of-pocket demobilization or other direct costs resulting from termination, including costs of collections (which shall include reasonable attorney's fees and court costs, if applicable). Upon termination, all rights and obligations of the parties under this Agreement will automatically terminate except for any right of action occurring prior to termination, payment obligations and obligations that expressly or by implication are intended to survive termination (including, but not limited to, limitation of liability, indemnity, confidentiality, or licensing of Work Product and this survival provision).
Miscellaneous Company may assign or subcontract all or any portion of its rights or obligations with respect to the sale of Products or the performance of Services or assign the right to receive payments, without Customer's consent. Customer may not assign these Terms and Conditions, or any of its rights or obligations herein without the prior written consent of Company. Subject to the restrictions in assignment contained herein, these Terms and Conditions will be binding on and inure to the benefit of the parties hereto and their successors and assigns. No provision of this Agreement or any statement of work will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties. The relationship between Company and Customer is that of independent contractors and not that of employer/employee, partnership or joint venture. If any term or condition of this Agreement or a statement of work is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or conditions hereof or thereof or the whole of this Agreement or the applicable statement of work. Notices provided under this Agreement will be given in writing and deemed received upon the earlier of actual receipt or three (3) days after mailing if mailed postage prepaid by regular mail or airmail or one (1) day after such notice is sent by courier or facsimile transmission. Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter enforce such rights.
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Use of The Physicians Resource for Medical Equipment, Inc. (hereinafter, the "Company") website signifies your agreement with the following terms and conditions of use. The terms and conditions of use as well as the content of this website are subject to change at any time without prior notice.
The Company may change these terms and conditions of use at any time, without prior notice. If you access or use the website after the Company posts a change, you accept that change. If you do not accept the change, do not access or use the website. You should check these terms and conditions of use periodically.
Access and Use of This Website The Company grants you a limited license to access and use the website, including to display, copy, distribute and download its content only for your personal, non-commercial use and provided that you do not modify the website, its content or any copyright or other proprietary notices. This license terminates automatically if you breach any of these terms and conditions of use. Upon termination, you must immediately destroy all copies of the website in your possession, whether maintained in electronic or paper format.
Unauthorized use of the website or any content may violate copyright laws, trademark laws, the laws of privacy and publicity and communications regulations and statutes.
Restrictions on Use of the Website Except as expressly authorized above, you may not copy, modify, distribute, download, display, transfer, post or transmit the website or its content in any form without the Company's prior, written permission.
The following activities are also expressly prohibited without the Company's prior, written permission: Any non-personal or commercial use; use of any robot, spider, other automatic device or manual process to monitor or copy the website or any of its content; "mirroring" the website or any content on any other server; collection or use of product listings, descriptions or prices for a supplier of competitive or comparable prices; and any action that imposes an unreasonable or disproportionately large load on the website or otherwise interferes with its functioning.
Accuracy of Information and Disclaimer of Warranty The Company has made every effort to present the content of the website accurately, but additions, deletions and changes may occur. Content on the website is provided "as is"; neither the Company nor its representatives make any representation ro warranty with respect to the content.
Although every effort has been made to provide complete and accurate information, the Company and its representatives specifically disclaim to the fullest extent permitted by law, and make no warranties, express or implied, relating to the website or its content, including, but not limited to, implied warranties of merchandise ability, completeness, timeliness, correctness, non-infringement or fitness for any particular purpose. The Company assumes no liability or responsibility for any errors or omissions in the information contained in the website or the operation of the website.
By using the Company website, you assume all risks associated with the use of this site including any risk of your computer, software or data being damaged by a virus, software, or any other files which might be transmitted or activated via the Company website. The Company expressly disclaims any liability for any special, incidental, or consequential damages, including without limitation, lost revenues, or lost profits, resulting from the use or misuse of the information contained in the website.
Limitation of Liability Under no circumstances will the Company or its affiliates have any liability with respect to any claims or damages (whether or indirect, special incidental, consequential or punitive), as a result of your access or use of (or inability to access or use) this website or its content even if they have been advised of the possibility of such damages. Your access and use this website at your own risk.
Indemnification You agree to defend, indemnify and hold the Company harmless from and against any and all claims, damages, costs including attorneys' fees, arising from or related to your use of the website.
Links to other Websites This website contains links to other Internet sites and information provided by persons not affiliated with the Company. Such links are not endorsements or referrals of any products, services or information contained in such websites, and no information in any such web site has been endorsed or approved hereby. No claims, promises, or guarantees about the completeness, accuracy, currency, content or quality of information contained in the links to and from this web site are made. Information provided and opinions expressed by others do not necessarily represent the opinion of the Company. The Company expressly disclaims any and all liability resulting from reliance on such information or opinions.
The Company does not review or control third party websites that link to or from this website, is not responsible for their content, and does not represent that their content is accurate or appropriate. Your use of such third party site is on your own initiative and at your own risk and may be subject to the other site's terms of use.
Miscellaneous THESE TERMS AND CONDITIONS WILL BE GOVERNED BY THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN LUZERNE COUNTY, PENNSYLVANIA, AND CUSTOMER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. IF IT SHOULD BECOME NECESSARY FOR THE COMPANY TO ENFORCE ANY OF THE TERMS OF THIS AGREEMENT BY INITIATING LEGAL ACTION, THE CUSTOMER SHALL PAY ALL COLLECTION AND/OR LITIGATION COSTS, PLUS REASONABLE ATTORNEYS' FEES OF SUCH ACTION.
Privacy Policy At the Company, we are committed to safeguarding the privacy of our visitors. Our business relationships are built on trust and we will never do anything to violate that trust. When you visit our website, no personally identifying information about you is gathered, unless you choose to voluntarily provide such information.
The only information we gather are website stats to help us continually improve the usability of our website such as page views, time spent on each page, etc. We may also collect information about your computer or other access device (such as IP address and domain) to mitigate risk and for fraud prevention purposes. The Company does not rent, trade, loan, or sell your personal information, or any other information which may identify you, to third parties.
Email Announcements You may opt-in to receive periodic email newsletters from The Company. At any time, you may opt-out from receiving these email announcements and you will be permanently removed from the mailing list. All information collected is stored on a secure, encrypted server. We will never sell, barter, or trade your email address with any third party.
Cookies We send a "session cookie" to your computer when you log in to your account. This type of cookie helps us to recognize you if you visit multiple pages on our site during the same session, so that we don't need to ask you for your password on each page. Once you log out or close your browser, this cookie expires and no longer has any effect. You are free to decline our cookies if your browser permits, but doing so may interfere with your use of our website.
The Physicians Resource for Medical Equipment, Inc. Standard Terms and Conditions for Sales
The following Terms and Conditions constitute a binding contract between you, the "Customer", and The Physician's Resources for Medical Equipment, Inc. (the "Company") and are referred to hereinafter as either "Terms and Conditions" or this "Agreement". By making a purchase from or placing an order with the Company in any manner, including through the Company's Website (the "Site"), by accepting delivery of products from the Company identified in any invoice, statement of work or other documentation provided in connection with sales of products or services to you, or otherwise requesting products ("Products") or engaging the Company to perform or procure any Services (as this and all capitalized terms are defined herein), you agree to be bound by this Agreement unless you and the Company have signed a separate agreement altering these terms and conditions, in which case the separate agreement will govern. These Terms and Conditions are subject to change without prior notice, except that the Terms and Conditions posted on the Site at the time you places an order or sign a statement of work will govern the order in question, unless otherwise agreed in writing by the Company and Customer.
Customer consents to receiving electronic records, which may be provided via an Internet web browser or e-mail application connected to the Internet; individual consumers may withdraw consent to receiving electronic records or have the record provided in non-electronic form by contacting the Company. Electronic signatures (or copies of signatures sent via electronic means) are the equivalent of written and signed documents.
Additional or different terms and conditions contained in any purchase order generated by Customer will be null and void. Modification of any of these Terms and Conditions directed by Customer shall only become binding if consented to in writing by the Company. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these Terms and Conditions or any purchase order or invoice, or any document in electronic or written form that is signed and delivered by each of the parties for the performance of Services. This Agreement contains the entire understanding of the parties with respect to the matters contained herein and supersedes and replaces in its entirety any and all prior communications and contemporaneous agreements and understandings, whether oral, written, electronic or implied, if any, between the parties with respect to the subject matter hereof.
Returns Returns will not be accepted without prior authorization from the Company. Contact must be made within five (5) business days from delivery of merchandise. When returning an item, please contact our customer service department for a return authorization code (hereinafter "Return Code"). Include a copy of your invoice and Return Code with returned items to ensure proper credit to your account. The Company will not accept returns of special order items, items that have been marked or engraved, items not returned in original packaging, items that were sold for resale, items determined not to be in resalable condition, sterile items that have been opened, and merchandise that has been delivered to you twenty (20) or more days from the date merchandise is shipped back to the Company. The Company will not accept return of any "one-time use" items, including but not limited to, opened consumables as defined by the Company (including for example, electrodes, batteries, cables and lead wires), opened CPR kits and opened CDs, DVDs, and manuals. If returning diagnostic or therapy related devices, the price of used accessories will be deducted from the refund. FDA tracked devices are not returnable if more than twenty (20) days has passed since original delivery date. All returned items must be sent freight pre-paid and received in new, resalable condition in original packaging. Returns, if approved, may be subject to restocking and or handling charges. Shipping costs for return items are solely at customer's expense. All returns should be insured and must be packaged as to avoid damage in shipping, and shipped via nationally recognized overnight courier; items damaged in shipping will not be credited. Send returns to: 306 Country Club Drive, Mountain Top, Pennsylvania 18707.
If the Company makes an error in your order, or your receive damaged equipment, please call us within twenty-four (24) hours of receipt at (800) 866-6689.
FDA-Rated Devices Before the Company is able to ship any FDA-rated devices to you (such as ET tubes, Nasal Cannulas, Non-Rebreather Masks, intravenous catheters, sets, defibrillators, infusion pumps, etc.) we may require that you provide authorization from your medical director or provide your state license number. To comply with applicable FDA regulations we request that you contact us and request a medical authorization form and fax or mail it back to us.
Governing Law THESE TERMS AND CONDITIONS, ANY STATEMENTS OF WORK, THE SERVICES HEREUNDER AND ANY SALE OF PRODUCTS HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN LUZERNE COUNTY, PENNSYLVANIA, AND CUSTOMER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. IF IT SHOULD BECOME NECESSARY FOR THE COMPANY TO ENFORCE ANY OF THE TERMS OF THIS AGREEMENT BY INITIATING LEGAL ACTION, THE CUSTOMER SHALL PAY ALL COLLECTION AND/OR LITIGATION COSTS, PLUS REASONABLE ATTORNEYS' FEES OF SUCH ACTION. Except in the case of nonpayment, neither party may institute any action in any form arising out of these Terms and Conditions within the shorter of (i) more than two (2) years after the cause of action has arisen, or (ii) the applicable statute of limitation to such action. The rights and remedies provided Company under these Terms and Conditions are cumulative, are in addition to, and do not limit or prejudice any other right or remedy available at law or in equity.
Risk of Loss If Customer provides Company with Customer's carrier account number or selects a carrier other than a carrier that regularly ships for Company, title to Products and risk of loss or damage during shipment pass from Company to Customer upon delivery to the carrier (F.O.B. Origin, freight collect). For all other shipments, title to Products and risk of loss or damage during shipment pass from Company to Customer upon delivery to the specified destination (F.O.B. Destination, freight prepaid and added). Notwithstanding the foregoing, title to any licensed software will remain with the applicable licensor(s), and Customer's rights therein are contained in the license agreement between such licensor(s) and Customer. A purchase money security interest is retained in the Products to secure payment in full. Customer authorizes Company to file a financing statement reflecting such security interest, and, if requested, Customer will record such purchase money security interest on its books.
Services Customers may order services (collectively, "Services") from or through Company from time to time. Certain Services, including, but not limited to, extended warranty service by manufacturers, are sold by Company as a distributor or sales agent ("Third Party Services").
In the case of Third Party Services, the third party shall be the party responsible for providing the services to the Customer and Customer will look solely to the third party for any loss, claims or damages arising from or related to the provision of such Third Party Services. Customer hereby releases Company and the entities that control, are controlled by, or are under common control with Company ("Affiliates") from any and all claims arising from or relating to the purchase or provision of any such Third Parties Services. Any amounts, including, but not limited to, taxes, associated with Third Party Services which may be collected by Company will be collected solely in the capacity as an independent sales agent.
Where Services are ordered in a statement of work and/or purchase order, each statement of work and/or purchase order hereby incorporates these Terms and Conditions and constitutes a separate agreement with respect to the Services performed. In the event of an addition to or a conflict between any term or condition of the statement of work and these Terms and Conditions, the terms and conditions of this Agreement will control, except as expressly amended in the applicable statement of work and/or purchase order by specific reference to this Agreement. Each such amendment will be applicable only with respect to such statement of work and/or purchase order and not to future statements of work and/or purchase orders. Changes to the scope of the Services described in a statement of work or purchase order will be made only in a writing executed by authorized representatives of both parties. Company will have no obligation to commence work in connection with any such change, unless and until the change is agreed upon in that writing executed by both parties. All such changes to the scope of the Services will be governed by these Terms and Conditions and the applicable statement of work and/or purchase order. Each statement of work and/or purchase order may be signed in separate counterparts each of which shall be deemed an original and all of which together will be deemed to be one original.
Cooperation In addition to any specific Customer duties set forth in any applicable order form, Customer agrees to cooperate with Company in connection with performance of the delivering Products and Services by providing (i) timely responses to Company's inquiries and requests for approvals and authorizations, (ii) reasonable access to any information or materials reasonably requested by Company which are necessary or useful as determined by Company in connection with providing the Products or Services, including, but not limited to, physical access to Customer's location(s), and (iii) any Required Consents necessary for Company to provide the Services. "Required Consents" means consents or approvals required to give Company, its affiliates, and its and their subcontractors the right or license to access, use and modify all data and third party products. Customer acknowledges and agrees that the Products and Services are dependent upon the completeness and accuracy of information provided by Customer and the knowledge and cooperation of the agents, employees or subcontractors ("Personnel") engaged or appointed by Customer who are selected by Customer to work with Company.
Company will follow all reasonable Customer security rules and procedures, as communicated in writing by Customer to Company from time to time.
Access When the Services are performed or Product's installed at Customer's premises, Company will attempt to perform such Services or install Product's within Customer's normal business hours unless otherwise jointly agreed to by the parties. Customer will provide Company access to Customer's Personnel and any other Customer resources (and when Services or Products are provided at another location designated by Customer, the staff and resources at such location) that Company determines are useful or necessary for Company to provide the Services or install the Products.
Payment Orders are not binding upon Company until accepted by Company. Customer agrees to pay the total purchase price for the Products plus shipping (to the extent shipping is not prepaid by Customer), including shipping charges that are billed to Company as a result of using Customer's carrier account number. Terms of payment are within Company's sole discretion. In connection with providing Services or Products, Customer will pay for the Services and/or Products in the amounts and in accordance with any payment schedule set forth in the applicable invoice. If no payment schedule is provided, Customer will pay for goods and/or services as invoiced by Company. Invoices are due and payable within the time period specified on the invoice, measured from the date of invoice, subject to continuing credit approval by Company. Company, or any of its Affiliates on behalf of Company may issue an invoice to Customer. Company may invoice Customer separately for partial shipments, and Company may invoice Customer for all of the Services and/or Products or any portion thereof. Customer agrees to pay interest on all past-due sums at the lower of fifteen percent (15%) per year or the highest rate allowed by law. Customer will pay for, and will indemnify and hold Company and its Affiliates harmless from, any applicable sales, use, transaction, excise or similar taxes and any federal, state or local fees or charges (including, but not limited to, environmental or similar fees), imposed on, in respect of or otherwise associated with any statement of work, the Products or the Services. Customer must claim any exemption from such taxes, fees or charges at the time of purchase and provide Company with the necessary supporting documentation. In the event of a payment default, Customer will be responsible for all of Company's costs of collection, including, but not limited to, court costs, filing fees and attorneys' fees. In addition, if payments are not received as described above, Company reserves the right to suspend Services until payment is received.
Except as otherwise specified on an applicable statement of work or invoice, Customer may be required to reimburse Company for reasonable out-of-pocket expenses incurred by Company in connection with the performance of the Services or provision of Products, including, but not limited to, travel expenses.
Warranties Customer understands that Company is not the manufacturer of the Products purchased by Customer hereunder and the only warranties offered are those of the manufacturer, not Company or its Affiliates, unless otherwise stated. In purchasing the Products, Customer is relying on the manufacturer's specifications only and is not relying on any statements, specifications, photographs or other illustrations representing the Products that may be provided by Company or its Affiliates. COMPANY AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES EITHER EXPRESS OR IMPLIED, RELATED TO PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF NON-INFRINGEMENT, OR ANY WARRANTY RELATING TO THIRD PARTY SERVICES. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY MANUFACTURER'S WARRANTY. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIVE OF COMPANY OR OF ITS AFFILIATES IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY ON BEHALF OF COMPANY OR ANY OF ITS AFFILIATES THAT IS NOT IN THIS AGREEMENT OR IN A STATEMENT OF WORK OR INVOICE EXPRESSLY AMENDING COMPANY'S WARRANTY. Customer expressly waives any claim that it may have against Company or its Affiliates based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property rights (each a "Claim") with respect to any Product and also waives any right to indemnification from Company or its Affiliates against any such Claim made against Customer by a third party.
Company warrants that the Services will be performed in a good and workmanlike manner. Customer's sole and exclusive remedy and Company's entire liability with respect to this warranty will be, at the sole option of Company, to either (a) use its reasonable commercial efforts to re-perform or cause to be re-performed any Services not in substantial compliance with this warranty or (b) refund amounts paid by Customer related to the portion of the Services not in substantial compliance; provided, in each case, Customer notifies Company in writing within five (5) business days after performance of the applicable Services. EXCEPT AS SET FORTH HEREIN, OR IN ANY STATEMENT OF WORK OR INVOICE THAT EXPRESSLY AMENDS COMPANY'S WARRANTY, AND SUBJECT TO APPLICABLE LAW, COMPANY MAKES NO OTHER, AND EXPRESSLY DISCLAIMS ALL OTHER, REPRESENTATIONS, WARRANTIES, CONDITIONS OR COVENANTS, EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DURABILITY, TITLE, ACCURACY OR NON-INFRINGEMENT) ARISING OUT OF OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY RELATING TO THIRD PARTY SERVICES, ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN PERFORMING SERVICES AND ANY WARRANTY CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIVE OF COMPANY OR OF ITS AFFILIATES IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY ON BEHALF OF COMPANY OR ANY OF ITS AFFILIATES THAT IS NOT IN THIS AGREEMENT OR IN A STATEMENT OF WORK EXPRESSLY AMENDING COMPANY'S WARRANTY.
Company will not be responsible for and no liability shall result to Company or any of its Affiliates for any delays in delivery or in performance which result from any circumstances beyond Company's reasonable control, including, but not limited to, Product unavailability, carrier delays, delays due to fire, severe weather conditions, failure of power, labor problems, acts of war, terrorism, embargo, acts of God or acts or laws of any government or agency. Any shipping dates or completion dates provided by Company or any purported deadlines contained in a statement of work or any other document are estimates only.
Pricing Information; Availability Disclaimer Company reserves the right to make adjustments to pricing, Products and Service offerings for reasons including, but not limited to, changing market conditions, Product discontinuation, Product unavailability, manufacturer price changes, supplier price changes and errors in advertisements. All orders are subject to Product availability and the availability of Personnel to perform the Services. Therefore, Company cannot guarantee that it will be able to fulfill Customer's orders. If Services are being performed on a time and materials basis, any estimates provided by Company are for planning purposes only.
Limitation of Liability UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL COMPANY, ITS AFFILIATES OR ITS OR THEIR SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS , EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH CUSTOMER'S IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BY COMPANY OR ITS AFFILIATES BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE PRODUCTS OR SERVICES; OR (D) ANY UNAVAILABILITY OF THE PRODUCT FOR USE OR ANY LOST, DAMAGED OR CORRUPTED DATA OR SOFTWARE. IN THE EVENT OF ANY LIABILITY INCURRED BY COMPANY OR ANY OF ITS AFFILIATES, THE ENTIRE LIABILITY OF COMPANY AND ITS AFFILIATES FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM OR THE SPECIFIC SERVICES GIVING RISE TO THE CLAIM; OR (B) $10,000.00.
Limited License Customer's sole rights to the work product, materials and other deliverables to be provided or created (individually or jointly) in connection with any Services, including but not limited to, all inventions, discoveries, methods, processes, formulas, ideas, concepts, techniques, know-how, data, designs, models, prototypes, works of authorship, computer programs, proprietary tools, methods of analysis and other information (whether or not capable of protection by patent, copyright, trade secret, confidentiality, or other proprietary rights) or discovered in the course of performance of this Agreement that are embodied in such work or materials ("Work Product") will be, upon payment in full, a non-transferable, non-exclusive, royalty-free license to use such Work Products solely for Customer's internal use. Customer will have no ownership or other property rights thereto and Customer shall have no right to use any such Work Product for any other purpose whatsoever. Customer acknowledges that Company may incorporate intellectual property created by third parties into the Work Product ("Third Party Intellectual Property"). Customer agrees that its right to use the Work Product containing Third Party Intellectual Property may be subject to the rights of third parties and limited by agreements with such third parties.
Confidential Information Each party anticipates that it may be necessary to provide access to information of a confidential nature of such party, the Affiliates or a third party (hereinafter referred to as "Confidential Information") to the other party in the performance of this Agreement and any statement of work. "Confidential Information" means any information or data in oral, electronic or written form which the receiving party knows or has reason to know is proprietary or confidential and which is disclosed by a party in connection with this Agreement or which the receiving party may have access to in connection with this Agreement, including but not limited to the terms and conditions of each statement of work. Confidential Information will not include information which: (a) becomes known to the public through no act of the receiving party; (b) was known to the receiving party, or becomes known to the receiving party from a third party having the right to disclose it and having no obligation of confidentiality to the disclosing party with respect to the applicable information; or (c) is independently developed by agents, employees or subcontractors of the receiving party who have not had access to such information. To the extent practicable, Confidential Information should be clearly identified or labeled as such by the disclosing party at the time of disclosure or as promptly thereafter as possible, however, failure to so identify or label such Confidential Information will not be evidence that such information is not confidential or protectable.
Each party agrees to hold the other party's Confidential Information confidential for a period of three (3) years following the date of disclosure and to do so in a manner at least as protective as it holds its own Confidential Information of like kind but to use no less than a reasonable degree of care. Disclosures of the other party's Confidential Information will be restricted (i) to those individuals who are participating in the performance of this Agreement or the applicable statement of work and need to know such Confidential Information for purposes of providing or receiving the Products or Services or otherwise in connection with this Agreement or the applicable statement of work, or (ii) to its business, legal and financial advisors, each on a confidential basis. Each party agrees not to use any Confidential Information of the other Party for any purpose other than the business purposes contemplated by this Agreement and the applicable statement of work. Upon the written request of a party, the other party will either return or certify the destruction of the Confidential Information of the other party.
If a receiving party is required by law, rule or regulation, or requested in any judicial or administrative proceeding or by any governmental or regulatory authority, to disclose Confidential Information of the other Party, the receiving party will give the disclosing party prompt notice of such request so that the disclosing party may seek an appropriate protective order or similar protective measure and will use reasonable efforts to obtain confidential treatment of the Confidential Information so disclosed.
Termination Either party may terminate performance of a Service or a statement of work for cause if the other party fails to cure a material default in the time period specified herein. Any material default must be specifically identified in a written notice of termination. After written notice, the notified party will, subject to the provision of warranties herein, have thirty (30) days to remedy its performance except that it will only have ten (10) days to remedy any monetary default. Failure to remedy any material default within the applicable time period provided for herein will give cause for immediate termination, unless such default is incapable of being cured within the time period in which case the defaulting party will not be in breach (except for Customer's payment obligations) if it used its reasonable efforts to cure the default. In the event of any termination of the Services or a statement of work, Customer will pay Company for all Services performed and expenses incurred up to and including the date of termination, plus any termination fee if one is set forth in the applicable statement of work. In such event, Customer will also pay Company for any out-of-pocket demobilization or other direct costs resulting from termination, including costs of collections (which shall include reasonable attorney's fees and court costs, if applicable). Upon termination, all rights and obligations of the parties under this Agreement will automatically terminate except for any right of action occurring prior to termination, payment obligations and obligations that expressly or by implication are intended to survive termination (including, but not limited to, limitation of liability, indemnity, confidentiality, or licensing of Work Product and this survival provision).
Miscellaneous Company may assign or subcontract all or any portion of its rights or obligations with respect to the sale of Products or the performance of Services or assign the right to receive payments, without Customer's consent. Customer may not assign these Terms and Conditions, or any of its rights or obligations herein without the prior written consent of Company. Subject to the restrictions in assignment contained herein, these Terms and Conditions will be binding on and inure to the benefit of the parties hereto and their successors and assigns. No provision of this Agreement or any statement of work will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties. The relationship between Company and Customer is that of independent contractors and not that of employer/employee, partnership or joint venture. If any term or condition of this Agreement or a statement of work is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or conditions hereof or thereof or the whole of this Agreement or the applicable statement of work. Notices provided under this Agreement will be given in writing and deemed received upon the earlier of actual receipt or three (3) days after mailing if mailed postage prepaid by regular mail or airmail or one (1) day after such notice is sent by courier or facsimile transmission. Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter enforce such rights.
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