This Agreement contains the terms and conditions that apply to your purchase from Strategic Business Holdings, Inc. entity named on the invoice (“SBH Surgical”) that will be provided to you (“Buyer”) on orders for surgical instruments and/or services and support sold. By accepting delivery of the surgical instruments and/or services and support described on that invoice, Customer agrees to be bound by and accepts these terms and conditions. THESE TERMS AND CONDITIONS APPLY (i) UNLESS BUYER HAS SIGNED A SEPARATE PURCHASE AGREEMENT WITH SBH Surgical, IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN; OR (ii) UNLESS OTHER SBH Surgical STANDARD TERMS APPLY TO THE TRANSACTION. These terms and conditions are subject to change without prior written notice at any time, in SBH Surgical’s sole discretion. No modification of this Agreement shall be binding on SBH Surgical unless in writing and signed by an authorized representative of SBH Surgical.
- 1 – Acceptance
Performance by SBH Surgical Surgical is expressly made conditional on Buyer’s assent to the terms and conditions of this order acknowledgement. Buyer agrees to these terms and conditions which shall prevail over any inconsistent provisions in any form or other paper submitted by Buyer. Any additional or different terms in any Buyer request for quotation, acknowledgment, commencement, or purchase order shall constitute a counteroffer and such counter offer shall not be accepted by SBH Surgical without written approval by SBH Surgical. The provisions of any existing written contract between SBH Surgical and Buyer for the same goods or services shall take precedence over any inconsistent terms or conditions contained in this Order Acknowledgement from SBH Surgical. SBH Surgical may, from time to time, change or supplement these terms and conditions. These terms and conditions may NOT be altered, supplemented, or amended by the use of any other document(s). Any attempt to alter, supplement or amend this document or to enter an order for product(s) or services and support that are subject to additional or altered terms and conditions will be null and void, unless otherwise agreed to in a written agreement signed by both Buyer and SBH Surgical. All purchases are subject to SBH Surgical approval not withstanding prior payments and, if not in accordance with the specifications, may, at SBH Surgical sole option, be returned to SBH Surgical at Buyer’s expense for transportation. SBH Surgical reserves the right to change product specifications, quantities, designs or prices without notice and without liability for such changes.
- 2 – Prices
The price(s) set forth in any SBH Surgical Order Acknowledgement are firm and shall not be changed without the prior written consent of SBH Surgical. If no price is specified in this Purchase Order, the goods shall be invoiced at the current list price. In addition to the prices stated herein, Buyer will pay to SBH Surgical any sales tax now or hereafter imposed by a state or municipality, based on or measured by the sale or use of material, product or services covered hereby. Supplier may in its sole discretion, adjust pricing in accordance with its published list prices.
- 3 – Payment
Payment will be due net thirty (30) days from receipt on approved credit. Where other payment terms are specified on the Order Acknowledgement, payment shall be made in accordance with those terms and conditions. If your credit has not been established with SBH Surgical, terms may be payment in advance or C.O.D. All shipments are F.O.B. SBH Surgical United States location. Items are shipped by express or standard method unless otherwise specified, with shipping charges and insurance prepaid and added as a separate charge on your invoice. The invoice will include, and Buyer agrees to pay, reasonable shipping and handling charges. Buyer further agrees to pay all invoices within fifteen (30) days of receipt of said invoice. A 1.5% per month service charge is added to delinquent accounts. Interest will be charged at 1.5% per month rate for all amounts outstanding more than thirty (30) days. In the event that it becomes necessary for SBH Surgical to incur collection costs or institute a suit to collect any amount due and payable, Buyer agrees to pay such additional collection costs, charges, and expenses, including attorney’s fees if the account is placed in the hands of an attorney or an agency for collection. Prices are subject to change without notice. Cancellation of orders is subject to approval by SBH Surgical. A minimum of 20% restocking/service charge will be applied. SBH Surgical reserves the right to refuse to perform under this agreement should there be any balance outstanding for more than thirty (30) days. SBH Surgical will not be in breach of this agreement by exercising this right. Buyer shall reimburse SBH Surgical for taxes, fees, surcharges or other charges imposed by legislation of regulations enacted or promulgated after the execution date of this Agreement and levied specifically upon the transportation or packaging of the products subject to this agreement. Any dispute shall be resolved in accordance with the laws of the state of California in the county of Orange.
- 4 – Shipment and Delivery
Shipment of the goods shall be made in accordance with customary shipping practices for such goods. Unless otherwise stated in the Order Acknowledgement, no charge will be allowed for packing, boxing, cartage and Buyer shall absorb and pre-pay all shipping and insurance charges. Goods ordered in error or duplicated because mailed-in order and not clearly marked “CONFIRMING” will be subject to a 20% restocking charge, if approved by SBH Surgical. Buyer shall notify SBH Surgical immediately of any situation which may delay or threaten to delay the timely acceptance of services and / or receipt of goods. SBH Surgical, at its option, may cancel all or any portion of this Order Acknowledgement without liability. Acceptance of all or part of the goods, or payment therefore, or failure to notify Buyer promptly shall not waive or affect SBH Surgical’s right to cancel the order or recover damages. SBH Surgical will make all reasonable efforts to meet Buyer’s requirement dates and to ship the products via Buyer’s choice of carriers. All products shall be properly labeled and packaged in accordance with applicable DOT regulations. Partial shipments will be accepted by the Buyer and will not be a breach of this agreement by SBH Surgical.
- 5 – Service and Support
SBH Surgical endeavors to provide the best customer and technical telephone support for ophthalmic hand-held surgical instruments. For end-user Customers, SBH Surgical promises that its support staff will attempt to handle over the telephone any problem involving SBH Surgical products. Service offerings may vary from product to product. SBH Surgical has no obligation to provide service or support until SBH Surgical has received full payment for the product or service/support contract for which service or support is requested. SBH Surgical will provide service and support to Buyer in the United States of America in accordance with the terms and conditions of the services and support policies and conditions in effect on the date purchased.
- 6 – Returns
No returns will be accepted without prior authorization, and are subject to approval by SBH Surgical. With our prior written authorization, returns may be made within 30 days of invoice date for a full credit and instruments must be in perfect condition and in their original package. If, for any reason, it is necessary to return goods to us, please contact your account manager for forwarding instructions. This procedure will prevent delays and enable us to resolve the situation to your satisfaction. SBH Surgical is not liable for goods returned without a returned goods authorization number (RGA). Returns must be sent through a traceable carrier, SBH Surgical will not refund return shipping cost. All authorized returns must be shipped to SBH Surgical within 5 business days upon authorization. SBH Surgical reserves the right to evaluate incoming returns prior to issuing any customer credit. We may implement price deductions depending on the age and condition of the instruments. A restocking and inspection charge will be applied on all authorized returns after (30) thirty days of invoice date. No returns will be accepted after 90 days of invoice date. Please contact your account manager for an RGA number prior to returning any portion of your free trial products. Shipping charges back to SBH Surgical are the responsibility of the customer. All sales are final on custom made instrumentation.
- 7 – Custom Made Instruments
Buyer must accept and pay for all customized goods. Returns will be accepted only if the manufactured product is not meeting the order specifications. Buyer shall be liable for all order specifications. Buyer can not reject goods in the case of slight tolerances. The prices of customized goods shall be based upon the original costs incurred for the particular order and which are accepted by Buyer upon placement of the order. Generally, such prices will be higher than those of comparable standard items. The actual prices, after final production, may exceed or be less than the calculated prices. These quotes shall be only approximately binding. SBH Surgical may demand 50% of the anticipated invoice value as an advance prepayment. We are not obliged to check whether third party industrial property rights are violated nor whether the prescribed design may lead to claims for compensation under liability laws. Buyer shall be solely responsible and liable for all related claims, and we hereby refuse to accept liability for products in this respect.
- 8 – Risk of Loss
Unless otherwise specified in this Order Acknowledgement, risk of loss will pass to Buyer only after shipment of the goods by SBH Surgical. Should Buyer receive damaged goods, it is imperative that Buyer save all packing materials for inspection by the carrier. Once the goods are turned over to the carrier by us, they become Buyer’s responsibility. While SBH Surgical will assist Buyer, all claims should be reported to the carrier immediately. Failure to do so makes Buyer, liable for payments of those goods should damage claims be rejected by the carrier. All claims must be made within 7 days of receipt of goods.
- 9 – Warranty
SBH Surgical products are warranted to meet the stated performance and quality and to be free of defects in material and workmanship. They are not warranted, nor does SBH Surgical assume liability, if misused. No other warranty or representation is implied or expressed by SBH Surgical for its products with respect to merchantability, fitness for a particular purpose, or any other matter. SBH Surgical shall not under any circumstances be liable for any incidental, consequential or compensatory damages arising from the use of, or in conjunction with, its products. The maximum liability that can be assumed by SBH Surgical for breach of warranty shall be the invoice price of the product. Period of warranty generally is one year from date of delivery of the goods. The terms and conditions of the manufacturer will be made available to Buyer if requested. On no account shall we be liable for defects and damage which may occur outside of our premises as a result of transportation and subsequent storage, improper handling, incorrect use, negligence, improper use, improper cleaning and handling, improper opening techniques, unauthorized repair work, caustic or abrasive cleaners,or other tampering with the supplied item that changes the guarantee or as the result of wear.
- 10 – Liability for Defects
The products offered are for surgical use only. SBH Surgical assumes no responsibility if these products are used for any other purposes, or are misused in any way. SBH Surgical products are only intended for clinical use. The information published by SBH Surgical is, to the best of its knowledge, correct and accurate but is not guaranteed to be so. SBH Surgical assumes no responsibility with respect thereto and has not verified the specifications and does not guarantee their accuracy. The sale of any product by SBH Surgical does not waive any patent restrictions connected with those products. All SBH Surgical instruments are guaranteed, with respect to material and workmanship only, for period of one year. These products are guaranteed to be free from defects in workmanship and materials. Any original product, which proves defective in workmanship or materials, will be repaired, replaced, or refund charges on any instrument (at SBH Surgical discretion), at no cost if an instrument fails to perform satisfactorily. Instruments being returned must have prior return authorization granted by SBH Surgical. Defective products must be accompanied by a written explanation of failure. Approval is subject to the following exclusions: (i). All instruments must be tested upon receipt and all deficiencies must be reported to SBH Surgical no later than 10 days after the date of receipt of the instrument. (ii). Maximum warranty period is limited to 365 days on all instruments unless previously agreed upon. However, INSTRUMENTS MAY NOT BE RETURNED FOR REFUND OR CREDIT AFTER 30 DAYS OR WITHOUT PRIOR AUTHORIZATION. (iii). Physical damage to the instruments due to misuse, abuse, or mishap, including mechanical shock. (iv). Damage to the material due to incorrect sterilization conditions, temperatures, or pressures. For products supplied by, but not manufactured by SBH Surgical, the warranty is limited by the terms of the original manufacturer’s warranty. Buyer agrees and represents that it is buying for its own end use only, and not for resale. Buyer warrants that they have sufficient knowledge, training, facilities and skills to safely use and store products provided under this agreement.
- 11 – Compliance
Buyer agrees to indemnify SBH Surgical and its customers and to hold SBH Surgical and its customers harmless against all liability and expenses, including counsel fees, if Buyer fails to comply with the applicable laws, regulations and ordinances of the States and of the United States, SBH Surgical may, in addition, cancel this Purchase Order in whole or in part, without further liability to Seller for failure to comply with this provision. Buyer will indemnify, defend and hold harmless SBH Surgical and its customers from and against all liabilities, losses and expenses, including counsel fees and disbursements, arising from the breach of any of these Terms and Conditions, or for personal injury or property damage relating directly or indirectly to the performance of any goods or service provided.
- 12 – Indemnification
Buyer agrees to indemnify, hold harmless and defend SBH Surgical from and against any and all liabilities, claims, penalties, forfeitures, suits and the costs and expenses incident thereto, including costs of defense, settlement, and reasonable attorney’s fees, which it may hereafter incur, become responsible for or pay out as a result of injury to any persons, destruction or damage to any property or any violation of governmental laws, regulations, or orders to the extent that such damage was caused by: (i) the breach by the Buyer of any term of this agreement, or (ii) any negligent or willful act or omission by the Buyer, the Buyer’s employees, officers, directors, agents, or assigns.
- 13 – Loss of Products
Buyer warrants that the products provided by SBH Surgical will be kept in a secure area under conditions appropriate for the products. In the event the products provided by SBH Surgical while in the custody of Buyer become damaged, destroyed, lost, or are otherwise unusable or unaccounted for, Buyer agrees to pay for the product as though it was used in accordance with Section 1 above.
- 14 – Excuse of Performance
The obligation of SBH Surgical to provide products and services pursuant to purchase order(s) may be suspended in the event of : (i) act of God, war, riot, fire, explosion, accident or flood; (ii) lack of adequate fuel, power, raw material, labor, containers, transportation or facilities; (iii) compliance with governmental requests, laws, regulations, orders, or other required licenses or approvals; (iv) breakage or failure of machinery or apparatus; (v) national defense requirements or any other event beyond the reasonable control of SBH Surgical; (vi) any such event that prevents the delivery, transportation, or acceptance of the products or service.