Offer and Acceptance.
This Quotation of Acknowledgement is an offer (the “Offer”) by portableultrasounds.com (“PU”) to list for sale, for Manufacturer or Seller, the goods or services referenced in the Agreement (the “Products”) to Customer. Customer may accept this Offer orally, in writing or by performance, but Customer’s acceptance, regardless of form, shall not alter these terms and conditions (“Terms”). If customer objects to any of these Terms, Customer must set forth each objection in a separate writing signed and dated by Customer and delivered to PU prior to or at the same time as the Customer’s purchase order or other forms of acceptance. Customer’s issuance of a push case order which purports to reject some or all of these Terms by virtue of standard form language shall not be sufficient objection. Any objections to which PU does not agree in writing shall be deemed rejected and shall not become a part of the parties’ agreement. PU’s failure to object to provisions in any purchase order, or other communication from Customer (including, without limitation, penalty clauses of any kind), shall not be a waiver of these Terms, nor an acceptance by PU of any such provisions. Any terms in Customer’s purchase order or any other document of acceptance which are different from or additional to these Terms are hereby rejected unless specifically accepted by PU in a separate document signed by both Customer and authorized PU representative, regardless of whether such other terms would materially alter these Terms. No course of dealing, customer or usage, which is contrary to these Terms shall apply. PU may correct any typographical or clerical errors in prices, specifications, quotations, or acknowledgements.
Product prices are subject to change without notice by the Manufacturer or Seller. PU does not set product prices. Prices are quoted in US dollars and are FOB point of shipment. Prices do not include freight or delivery charges, taxes (sales, excise, use, ad valorem, etc.), or any export or import duties unless otherwise noted on the Agreement.
To determine Customer’s creditworthiness, Manufacturer or Seller may, at its discretion, require full or partial payment in advance. Determination of financial condition is up to the Manufacturer or Seller.
All payments are to be settled directly with the Manufacturer or Seller. PU shall not be responsible for any payment handling.
PU is not responsible for product shipments. All products are shipped by the Manufacturer or Seller.
Cancellation and Returns.
Order cancellations and returns are the responsibility of the Manufacturer or Seller. PU does not accept returned merchandise and is not responsible for any merchandise that is shipped to its facilities. Customer must contact the Manufacturer or Seller directly to cancel an order.
PU shall not be liable for loss, damages, or non-performance resulting from Manufacturer or Seller delays in receipt of final specifications or instructions from Customer changes in specifications, events of force majeure, or other cases that are beyond PU’s reasonable control.
portableultrasounds.com Warranty and Customer Remedies.
PU holds no warranties about Products. Customer must check with the Manufacturer or Seller for all warranty and customer remedies details.
Limitation of Liability.
UNDER NO CIRCUMSTANCES SHALL PU BE LIABLE TO CUSTOMER FOR INCIDENTAL SPECIAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF USE ARISING DIRECTLY OR INDIRECTLY FROM ANY BREACH OF WARRANTY, BREACH OF CONTRACT, MATERIALS OR OTHERWISE, OR FROM ANY ACTS OR OMISSIONS OF PU’S EMPLOYEES OR AGENTS, TORTIOUS OR OTHERWISE. IN NO EVENT SHALL PU’S LIABILITY FOR ANY CLAIM BROUGHT BY CUSTOMER EXCEED THE PRICE OF THE DEFECTIVE PRODUCT.
Any notice required or contemplated by this Purchase Order shall be in writing and shall be delivered personally or sent by telefax or by prepaid registered mail. Notice by telefax shall be deemed to have been received when transmitted and any notice sent by registered mail shall be deemed to have been received on the second day following the day mailed.
Miscellaneous. Customer may not assign any rights arising of the parties’ business relationship or any PU duty without PU’s prior written consent. Invalidity of any provision of these Terms shall not affect the validity of any other provision and any invalid provision shall be severed from the valid provisions. No failure by PU to exercise any right accruing to it by virtue of the parties’ relationship or under any contract entered into with Customer shall operate as a waiver thereof or preclude the exercise of any other right or privilege by PU. There are no other terms and conditions applicable to the sale of the Products other than those contained in these Terms. No modification, amendment, waiver or other change of any provision of PU’s Terms shall be binding on PU without PU’s written consent.
Customer Warranty. Customer acknowledges that the equipment provided is regulated by the FDA, and that treatments may be performed only for medical purposes by certified technologists. Customer represents and warrants that treatments using equipment purchases from the Manufacturer or Seller will be performed only by a health professional for medical treatment purposes. Customer further represents and warrants that any medical equipment purchases from PU is not intended for personal or household use. Customer will defend and indemnify PU for any claims asserted against PU as a result of the breach of this warranty.
Governing Law, Venue. These Terms and the parties’ relationship shall be governed by Ohio state law, as if the relationship arose in and was to be performed entirely within the state. The exclusive venue and jurisdiction for the resolution between the parties shall be the state or federal courts for Cleveland, Ohio. Any action for a breach of contract or other claim arising out of parties’ business relationship must be commenced within one year after the cause of action has accrued.
Disclosure of Information. Any information, suggestions or ideas given by the Customer to PU in connection with PU’s performance hereunder are not secret or submitted in confidence, except as may be otherwise agreed in a separate writing signed by PU.
Attorneys’ Fees. In any action to enforce its rights arising out of the parties’ business relationship, PU shall be entitled to recover all costs incurred in connection with this action, including, without limitation, attorneys’ fees and all other litigation costs.