Belmont General Terms and Conditions for the Sale of Goods
APPLICABILITY:
(a) These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the goods (“Goods”) by Belmont Instrument, LLC (“Seller”) to the buyer referenced in the Sales Acknowledgment (“Buyer”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
(b) The accompanying Sales Acknowledgment (the “Sales Acknowledgment” and these Terms (collectively, this “Agreement”)) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. The Sales Acknowledgment prevails over these Terms to the extent they are inconsistent with one another. This Agreement prevails over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
SHIPPING TERMS:
(a) The Goods will be delivered promptly after the receipt of Buyer’s purchase order, subject to availability of finished Goods. Seller shall not be liable for any delays, loss or damage in transit.
(b) Unless otherwise agreed by the parties, Seller shall deliver the Goods to Buyer FOB Seller's loading dock (the “Delivery Point”), with title and risk of loss passing to Buyer upon delivery to the common carrier, using Seller’s standard methods for packaging and shipping such Goods.
(c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
SECURITY INTEREST:
As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Massachusetts Uniform Commercial Code.
AMENDMENT AND MODIFICATION:
These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
INSPECTION AND REJECTION OF NONCONFORMING GOODS:
(a) Buyer shall inspect the Goods within seven (7) days of receipt (“Inspection Period”). Buyer will be deemed to have received the Goods identified in the invoice, label or packaging delivered in connection therewith unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents. Goods may not be rejected if they have been opened, or the packaging has been damaged or tampered with, unless the Goods arrived in that condition.
(b) If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 5(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 5(b), all sales of Goods to Buyer are made on a final basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
PRICE:
(a) Buyer shall purchase the Goods from Seller at the prices set forth in the Sales Acknowledgment.
(b) All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
PAYMENT TERMS:
(a) Buyer shall pay all invoiced amounts due to Seller net 30 days from invoice.
(b) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for thirty (30) days following written notice thereof.
(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
INTENDED USE/TRAINING:
(a) The Goods are suitable for use in medical facilities by medical professionals only. Buyer is responsible for ensuring that the Goods are used: (i) only as documented in the instructions for use provided by Seller, and (ii) only by Buyer's personnel or agents possessing sufficient training and expertise to properly use the Goods as documented in the applicable instructions for use.
(b) Seller may provide training related to certain Goods, the form, duration, and content of which will be at Seller's discretion.
LIMITED WARRANTY:
(a) EXCEPT AS PROVIDED HEREINBELOW IN THIS SECTION 9, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(b) Notwithstanding the foregoing, Seller warrants to Buyer that the Goods shall be free from defects in material and workmanship and conform to the specifications set forth in the Instructions For Use (“IFU”) when delivered. Any claim for breach of this warranty must be made in writing within one (1) year of the delivery of the Goods (such one-year period referred to as the “Warranty Period”). Seller further warrants to Buyer that upon delivery of Goods to Buyer and payment in full therefor by Buyer, title will pass to Buyer free of all liens, claims, security interests or encumbrances.
No agent, employee or representative of Seller has any authority to bind Seller to any affirmation, representation or warranty concerning the Goods, and any affirmation/representation, or warranty made by any such agent, employee, or representative shall be void and of no legal effect.
THIS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED (INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), AND THE LIABILITY AND REMEDY STATED IN THIS LIMITED WARRANTY WILL BE THE SOLE LIABILITY OF SELLER AND REMEDY AVAILABLE TO BUYER FOR, THE GOODS, FOR ANY CLAIM WHETHER IN CONTRACT TORT OR OTHERWISE.
(c) The Seller shall not be liable for a breach of the warranty set forth in Section 9(b) unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within thirty (30) days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective.
(d) The Seller shall not be liable for a breach of the warranty set forth in Section 9(b) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow the IFU or Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.
(e) Subject to Section 9(c) and Section 9(d) above, with respect to any Goods that breach the warranty set forth above in § 9(b) during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller.
(f) THE REMEDIES SET FORTH IN SECTION 9 SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 9(b).
LIMITATION OF LIABILITY:
(a) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT;(INCLUDING PURSUANT TO ANY INDEMNIFICATION OBLIGATION), WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED TWO (2) TIMES THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.
(c) The limitation of liability set forth in Section 10(b) above shall not apply to (i) liability resulting from Party's gross negligence or willful misconduct and (ii) death or bodily injury resulting from a Party’s acts or omissions.
INTELLECTUAL PROPERTY:
The Goods have been developed and include certain intellectual property of Seller (collectively, the "Intellectual Property"). Seller retains all ownership rights in and to the Intellectual Property and nothing herein is conveying any right to Buyer in such property and Buyer shall have no right in or to the Intellectual Property. Buyer may not distribute, copy, modify, reverse engineer, decompile, translate, disassemble or create any equivalent of the Goods or allow others to do so. No implied licenses are granted hereby and all rights not expressly granted under this Agreement are reserved by Seller.
INTELLECTUAL PROPERTY INDEMNIFICATION:
Seller shall indemnify and hold harmless Buyer against any and all Losses arising out of any third-party claim brought against Buyer to the extent that such third-party claim is based on a claim that the use of the Goods as contemplated hereunder constitutes an infringement of any valid issued United States patent or United States copyright of such third party, unless such third-party claim of infringement is based on use of the Goods with any equipment or software not authorized by Seller or use of modified Goods, where Seller did not authorize such modification or use of the Goods in any manner other than as set forth in the Instructions For Use. Seller will pay any judgment for damages and costs finally awarded in any such suit or proceeding against Buyer to the extent that the damages arise from such infringement. If a notice of commencement or threatened commencement of a suit or proceeding is received by Buyer, Buyer shall provide Seller with: (i) prompt written notice of each third-party claim received; (ii) full control over the defense and settlement of such third-party claim; and (iii) full information and reasonable assistance to settle or defend any such third-party claim. The Parties agree that if the Goods become the subject of such a third-party claim, or in Seller’s judgment such is likely to occur, or a court of competent jurisdiction issues an injunction preventing use of the Goods by Buyer, Seller shall, at Seller’s option and expense, use commercially reasonable efforts to either (1) procure the right for Buyer to continue using the same, or (2) replace or modify the same such that it is not infringing (while remaining in material compliance with the specifications as set forth in the Instructions For Use), and, if despite using commercially reasonable efforts Seller is unable to procure for Buyer the right to use the Goods or replace or modify the same such that it is not infringing, Seller may terminate this Agreement and Buyer shall return the Goods to Seller and Seller shall refund to Buyer the purchase price paid by the Buyer for the applicable returned Goods.
COMPLIANCE WITH LAW:
Each party shall comply with all applicable laws, regulations and ordinances and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
TERMINATION:
In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for thirty (30) days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
WAIVER:
No waiver by either Party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by such Party. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
CONFIDENTIAL INFORMATION:
All non-public, confidential or proprietary information of Party, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by such Party ("Discloser") to the other Party ("Receiving Party"), whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Discloser in writing. Upon Discloser's request, Receiving Party shall promptly return all documents and other materials received from Discloser. Discloser shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) publicly known; (b) known to Receiving Party at the time of disclosure; or (c) rightfully obtained by Receiving Party on a non-confidential basis from a third party.
FORCE MAJEURE:
Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of such non-performing Party including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
ASSIGNMENT:
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
RELATIONSHIP OF THE PARTIES:
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
NO THIRD-PARTY BENEFICIARIES:
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
GOVERNING LAW:
All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Massachusetts or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Commonwealth of Massachusetts.
SUBMISSION TO JURISDICTION:
Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the Commonwealth of Massachusetts in each case located in the City of Boston, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
NOTICES:
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Acknowledgment or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
SEVERABILITY:
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
SURVIVAL:
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Limited Warranty, Limitation of Liability, Compliance with Laws, Confidential Information Governing Law, Submission to Jurisdiction, and Survival.
Last updated: June 22, 2020
