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Terms Of Sale

ACCORA TERMS & CONDITIONS FOR SALES ORDER CONTRACT ACKNOWLEDGEMENT

Thank you for your purchase from Accora (“Supplier”). These Terms & Conditions (“Terms”) exclusively govern the sale of all Accora medical beds and related products specified in this Purchase Order Acknowledgement (collectively, “Products”). Any terms and conditions that are inconsistent with, that modify or add to, these Terms, are rejected unless and until Supplier send to Customer a modified Purchase Order Acknowledgement.

This Purchase Order Acknowledgement (“POA”) shall become a binding contract for all Product upon:

  1. Supplier transmitting this POA to Distributors; and
  2. Any of the following:
    1. The passing of twenty-four (24) hours after such transmittal;
    2. Customer’s acknowledgement of receipt of the POA without a written refusal of acceptance of this POA or any of its terms as binding;
    3. Customer giving instructions to Supplier regarding delivery, including, without limitation; instructions to Supplier to bill but hold the Products;
    4. Customer’s acceptance of delivery of all or any part of the Products specified herein;
    5. Customer’s payment to Supplier of all or any part or of the Products; or
    6. Customer’s indication of acceptance of this POA as a binding contract in any other reasonable manner.

ARBITRATION: Any controversy, claim or dispute arising out of or relating to this contract, or the interpretation, construction, or breach thereof, shall be settled by arbitration in Anne Arundel County, Maryland under the Rules then obtaining of the American Arbitration Association. The parties hereto consent to the jurisdiction of the District Court of the State of Maryland in the district in which Supplier’s below-referenced address is located or the United States District Court for the District of Maryland for all purposes, including enforcement of the arbitration agreement and proceeding for entry of any judgement on any award, and further consent that any process or notice of motion may be served either personally or by certified mail, return receipt requested, provided a reasonable time for appearance is allowed.

LIMITATION OR RIGHT TO ARBITRATE: Notwithstanding any claims Customer might otherwise be entitled to assert, Distributor shall be barred from instituting arbitration proceedings or pursuing any remedies at law or equity. Customer agrees that Supplier shall not be responsible for providing any training on the use of the Products under this contract.

SUPPLIER WARRANTIES:

  1. Supplier represents and warrants that all Products will upon delivery:
    1. be merchantable and free from any defects;
    2. be free and clear of all liens, security interests or other encumbrances; and
    3. not infringe or misappropriate any letters patent, trademark or copyright issued or granted by the United States or Canada or any other intellectual property rights of any third party. Supplier includes a written warranty in the printed materials included with the Products at the time of delivery. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE HEREBY EXCLUDED. IN PARTICULAR, SUPPLIER MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF THE PRODUCTS OR THEIR FITNESS FOR ANY PARTICULAR PURPOSE.
  2. Mattress manufacturer has included a warranty for mattresses in the mattress instruction manual included with the product(s). SUPPLIER MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING MATTRESS(ES).
  3. Supplier shall not be liable for normal manufacturing defects, for customary variations from specifications, or for any imperfections inherent in the manufacturing processes used.

‍DISTRIBUTOR WARRANTEES: Where Customer is a Distributor, Distributor represents and warrants:

  1. Customer will deliver any Products to third parties in merchantable condition, free of damage and defect, and complete with all materials, including all instruction manuals, as Products were delivered to Customer.
  2. Neither Distributor nor any of its affiliates, employees or contractors providing services with respect to the Products:
    1. have been convicted of a criminal offense related to healthcare;
    2. are listed on the Office of Inspector General’s List of Excluded Individuals/Entities, or are otherwise
    3. currently excluded, suspended or debarred from participating in any federal healthcare program;
    4. are under investigation (civil or criminal) by any federal or state enforcement, regulatory, administrative or licensing agency; or
    5. are currently listed on the General Services Administration List of Parties Excluded from the Federal Procurement and Non-Procurement Programs.
  3. Customer and its staff shall comply with and shall market all Products to be used only in compliance with, the applicable instruction manuals and other printed materials issued by Supplier relating to the use of the Products; and
  4. Customer shall not make any modifications to the Products or instruct any third parties to make any such modifications.

PRICE AND PAYMENT:

  1. Payment shall be made in United States currency. Any check received from Customer may be applied by Supplier against any obligation owing to Customer to Supplier under this or any other contract, regardless of any statement appearing on or referring to such check, without discharging Customer’s liability for any additional amounts owing to Customer to Supplier; and the acceptance by Supplier of such check shall not constitute a waiver of Supplier’s right to pursue the collection of any remaining balance.
  2. In the event that subsequent to the execution (or other manifestation of acceptance) hereof but prior to the delivery of any Products, Supplier’s costs of fulfilling the terms hereof of any duties, or local, state or federal or other government charges upon the production, sale or transportation of the Products increase or decrease, Supplier may adjust the purchase price hereunder to reflect fully such increase or decrease. Any such adjustment shall be communicated in writing promptly to Customer.
  3. Any course of dealing between the parties hereto to the contrary notwithstanding, interest on overdue payments hereunder shall be made by Customer to Supplier at an annual rate of not less than One and One-half Percent (1- ½%) over the prime rate then in effect. The acceptance of such interest on any overdue payment hereunder shall not affect any of Supplier’s right under the contract.
  4. The time and terms of payment hereunder are of the essence of this contract. If Supplier believes that Customer’s ability to make the payments called for by this contract is or may be impaired, or if Distributor fails to make any payment hereunder when due, Supplier may, in its sole discretion, cancel this contract or any remaining balance thereof, Customer remaining liable to pay for any good already shipped. Supplier’s rights hereunder shall continue notwithstanding any prior failure on the part of Supplier to exercise such rights.

ADDITIONAL FREIGHT: Except as otherwise specifically provided herein, Supplier shall not be responsible for freight, transportation, insurance, shipping, storage, HANDLING, DEMURRAGE, OR SIMILAR CHARGES. If such charges are by the terms of sale included in the purchase price of the Products, any increase in any of such charges which increase is effective after the date hereof shall be paid by and be the responsibility of Customer.

DELIVERIES:

  1. Customer is responsible for inspecting all deliveries before the carrier departs. If any Product is delivered with known and/or visible damage, it is Customer’s responsibility either to refuse acceptance of such Product or report such damage to the carrier and document same on the Bill of Lading at the time of delivery. Seller’s delivery of a shipment of Products to a carrier with instructions to transport to Customer shall constitute deliver to Customer, and title and risk of loss shall thereupon pass to Customer. Where Products are held in accordance with Customer’s instructions, or where no shipping instructions have been supplied by Customer, the mailing of an invoice shall constitute delivery, and title and risk the loss thereupon pass to Customer.
  2. Delivery of any installment of Products within thirty (30) days after the date specified therefore shall constitute a timely delivery. Delivery after thirty (30) days shall be deemed timely unless prior to shipment Supplier has received written notice of cancellation. Delay in delivery of one installment shall entitle Customer to cancel that installment only. In any event, acceptance of any shipment shall constitute A BAR TO A CLAIM OF LATE DELIVERY. Every shipment hereunder is to be considered a separate sale.
  3. Should delivery of any Products be delayed by events beyond Supplier’s control, including that not limited to strikes, natural or man-made disasters, government regulation or Supplier’s inability to obtain labor, materials or service through its regular sources, Supplier’s time for performance shall be extended by the period of delay, or Supplier may, at its option, cancel this contract without liability. Customer remains liable to pay for shipments already made.

CLAIMS AND ALLOWANCES: Claims of any kind or nature, except for latent defects, are specifically barred unless made in writing within seven (7) days after receipt of Products on the face hereof, and in any event, prior to the altering of Products in any manner whatsoever from the original condition of deliver, whichever is earlier. Claims for latent defects are barred unless in writing and received by Supplier within sixty (60) days after date of invoice. The limit of liability of Supplier for defective Products shall be the difference in fair market value on contract date of delivery between Products specified and Products actually delivered. The limit of liability of Supplier for non-delivery or late delivery shall be the difference, if any, between the contract price and the fair market value on the contract date of delivery of the Products to be delivered provided that such delivery was due to causes within Supplier’s control and Customer actually purchases replacement products. In no event shall Customer be entitled to any other damages or any incidental or consequential damages for defective or late delivery or non-delivery and in no instance shall damages include profit on contemplated use of profit of any kind or description. At Supplier’s option, it may in full satisfaction of any and all liabilities hereunder, accept return of all or part of defective Products and credit Customer with a reasonable amount in respect thereof.

INFORMATION DISCLOSED TO DISTRIBUTOR:‍

  1. Any knowledge or information which Supplier shall have disclosed or may hereafter disclose to Customer in connection within the purchase of the Products shall be deemed to be confidential and proprietary information, and shall not be disclosed at any time or for any reason whatsoever by Customer or its agents or employees to any person, firm, corporation or other entity.
  2. No rights in designs, trade names, trademarks, and patents of Products delivered hereunder shall pass to Customer and Customer agrees not to reproduce or simulate or cause or knowingly allow to be reproduced or simulated, either directly or indirectly, such designs, trade names, trademarks and patents.

TERMINATION: If Supplier believes that Customer’s ability to make the payments called for by this contract is or may be impaired, or if Customer fails to make any payment hereunder when due, or if Customer ceases to conduct its operations in the normal course of business (including its inability to meet its obligations as they mature), or if petition in bankruptcy is filed by or against Customer, or if Customer makes an assignment for the benefit of its creditors or otherwise makes application in any form for relief as a debtor or under any statute of the United States or of any State, or if receiver is appointed to take charge of any of the property of Customer, then Supplier may immediately terminate this contract and its obligations hereunder without liability of any kind or nature.

GENERAL:

  1. This contract contains the entire agreement between the parties hereto and supersedes any and all prior oral or written agreements or communications between them relating to the subject matter hereof. No oral representation shall be binding.
  2. This contract may not be assigned, modified or cancelled without Supplier’s prior written consent, and any attempt to assign, modify or cancel this contract without such consent shall be null and void.
  3. Waiver by Supplier of the operation of any provision of this contract, or of any breach by Customer, shall not constitute a continuing waiver, and Supplier shall always retain the right to insist upon the operation of all provision hereof and to enforce its rights with respect to any subsequent breach.
  4. This POA shall be governed by and construed in accordance with the laws of Maryland without regard to conflict of laws rules.
  5. If, by reason of any rule of law or public policy, any covenant or other provision of this contract is now or hereafter invalid, unlawful, or incapable of being enforced, all other conditions and provisions of this contract which can be given effect without the invalid, unlawful or enforceable provision shall nevertheless remain in full force and effect.

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QMS-ACC-TC-US Rev 02