Purchase Orders - Terms and Conditions of Sale
Purchase Orders - Terms and Conditions of Sale
1. Applicability. These terms and conditions of sale (these “Terms”) are the only terms that govern the sale of products (“Products”) by Nasco Healthcare, Inc., a Delaware corporation (“Nasco”) to any buyer, whether or not identified on the face hereof, in any quotation, confirmation of sale, or invoice issued by Nasco, or otherwise (“Buyer”). Any accompanying quotations, confirmations of sale, or invoices issued by Nasco (the “Sales Confirmation” and these Terms, collectively, the “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. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Any term or condition contained in any purchase order or other communication or document of Buyer that adds to or is inconsistent with these Terms is expressly rejected. If for any reason these Terms, Sales Confirmation, or any order acknowledgement issued by Nasco is deemed to be an acceptance of a prior offer made by Buyer, such acceptance is expressly conditioned on Buyer’s assent to only these Terms.
Nasco may, in its sole discretion, accept or reject any purchase order placed or submitted by Buyer. Nasco may accept any purchase order placed or submitted by Buyer by sending a written or electronic Sales Confirmation or by commencing production of the Products, whichever the case may be. Fulfillment of Buyer’s purchase order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
IN THE EVENT BUYER HAS PURCHASED AN “ALEX” OR “AXEL” PATIENT SIMULATOR PRODUCT, ADDITIONAL SOFTWARE TERMS AND CONDITIONS SET FORTH IN SECTION 25 SHALL ALSO APPLY TO BUYER.
2. Shipping Terms and Delivery. Unless otherwise agreed in writing by the parties, Nasco shall ship all Products EXW (Ex Works as defined in INCOTERMS 2020) at a Nasco plant or facility (the “Delivery Location”) using Nasco’s standard methods for packaging and shipping such Products. Unless Buyer provides shipping instructions, Nasco is authorized to make shipping arrangements on Buyer’s behalf and Buyer shall be responsible for all costs and expenses associated therewith. Notwithstanding anything in the Agreement to the contrary, any delivery date or timeframe provided by Nasco is for informational purposes only and a good faith estimate of the expected delivery date for the Products. Nasco will use commercially reasonable efforts to fulfill orders within the timeframes stated but in no event shall Nasco be liable for any losses or damages associated with Nasco’s inability to meet any such timeframes. Nasco may, in its sole discretion, without liability or penalty, make partial shipments of Products 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.
3. Title and Risk of Loss. Title and risk of loss pass to Buyer upon delivery of the Products to the Delivery Location to the carrier for shipment.
4. Inspection and Rejection of Nonconforming Products.
(a) Buyer shall inspect the Products within five (5) days of receipt (“Inspection Period”) and either accept or, only if any such Products are Nonconforming Products, reject such Products. “Nonconforming Products” 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. Buyer will be deemed to have accepted the Products unless it provides Nasco with written notice of any Nonconforming Products prior to expiration of the applicable Inspection Period, stating with reasonable specificity all nonconformities, and furnishing such other written evidence or other documentation as may be reasonably requested by Nasco (including the subject Products, or a representative sample thereof, which Buyer contends are Nonconforming Products). All nonconformities that are not so specified will be deemed waived by Buyer, such Products shall be deemed to have been accepted by Buyer, and no attempted revocation of acceptance will be effective.
(b) If Nasco determines that such Products are Nonconforming Products, Nasco shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the Price for such Nonconforming Products. Buyer shall ship, at Nasco’s reasonable expense (in accordance with Nasco’s instructions) and risk of loss, the Nonconforming Products to Nasco’s designated facility. If Nasco exercises its option to replace Nonconforming Products, Nasco shall, after receiving Buyer’s shipment of Nonconforming Products, ship to Buyer, at Nasco’s reasonable expense and risk of loss, the replaced Products to the Delivery Location. BUYER ACKNOWLEDGES AND AGREES THAT THE REMEDIES SET FORTH IN THIS SECTION 4(b) ARE BUYER’S SOLE AND EXCLUSIVE REMEDIES FOR THE DELIVERY OF NONCONFORMING PRODUCTS.
5. Price. Buyer shall purchase the Products from Nasco at the prices (the “Prices”) set forth in Nasco’s Sales Confirmation. 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, Nasco’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
6. Payment Terms. Buyer acknowledges that Nasco may use a third-party payment processor (“Payment Processor”) and Buyer hereby agrees to Payment Processor’s applicable terms and conditions. Unless otherwise agreed to in writing by Nasco, payment must be received by Nasco (or Payment Processor) before shipment of the Products. Nasco (and Payment Processor) accepts all major credit cards for purchases. Buyer represents and warrants that (a) the credit card information Buyer supplied to Nasco (or Payment Processor) is true, correct and complete, (b) Buyer is duly authorized to use such credit card for the purchase, (c) charges incurred by Buyer will be honored by Buyer’s credit card company, and (d) Buyer will pay charges incurred by Buyer at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the Site at the time of Buyer’s order.
In the event Nasco agrees to allow Buyer to pay after the shipment of the Products, Buyer shall pay all invoiced amounts, without deduction or setoff, within 30 days from the date of Nasco’s invoice. Buyer shall make all payments hereunder as designated by Nasco and in US Dollars. 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 Nasco for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
7. Returns and Refunds. Except for any Products designated as non-returnable on the Sales Confirmation, Nasco will accept a return of the Products in accordance with Nasco’s “Refund Policy” found at https://shop.nascohealthcare.com/policies/refund-policy, provided such return is made within 30 days of delivery and provided such Products are returned in their unopened, unused, original condition and packaging. Returns may be subject to a restocking fee, as further set forth in the Refund Policy. Buyer bears the risk of loss during return shipment. For avoidance of doubt, Buyer must first contact Nasco in accordance with the Refund Policy and receive a return authorization confirmation and number from Nasco in order to initiate any return of Products.
8. Limited Warranty.
(a) The Products may come with Nasco’s applicable standard limited product warranty in effect at the time for each such Product, which will be provided either on or with the Products at delivery, or electronically through a download or link on Nasco’s website. Nasco shall not be liable for a breach of any limited Products warranty unless: (i) Buyer gives written notice of the defect, reasonably described, to Nasco within 10 days of the time when Buyer discovers or ought to have discovered the defect; (ii) Nasco is given a reasonable opportunity after receiving the notice to examine such Products and Buyer (if requested to do so by Nasco) returns such Products to Nasco’s place of business at Nasco’s reasonable cost for the examination to take place there; and (iii) Nasco reasonably verifies Buyer’s claim that the Products are defective. Notwithstanding anything in the Agreement to the contrary, the applicable limited Products warranty shall not apply if: (i) Buyer makes any further use of such Products after giving such notice; (ii) the defect arises because Buyer failed to follow Nasco’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products; (iii) Buyer alters or repairs such Products without the prior written consent of Nasco; (iv) Buyer subjects the Products to abnormal physical stress or environmental conditions; or (iv) the defect arises due to causes or conditions beyond Nasco’s control.
For avoidance of doubt, the “ALEX” and “AXEL” Patient Simulator Product limited product warranties can be found at the following: https://nascohealthcare.com/products/alex-axel/, and such warranties are incorporated into this Agreement by reference.
(b) EXCEPT FOR THE APPLICABLE LIMITED PRODUCTS WARRANTY EXPRESSLY STATED ABOVE IN SECTION 8(a), ALL PRODUCTS UNDER THE AGREEMENT ARE SOLD BY NASCO ON AN “AS IS” BASIS AND NASCO MAKES NO OTHER REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND REGARDING THE PRODUCTS, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, INCLUDING ANY EXPRESS, IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. NASCO’S SOLE OBLIGATION, AND BUYER’S EXCLUSIVE REMEDY, FOR ANY BREACH OF ANY LIMITED PRODUCTS WARRANTY SHALL BE FOR NASCO, IN ITS SOLE DISCRETION, EITHER: (i) REPAIR OR REPLACE SUCH PRODUCTS, OR (ii) CREDIT OR REFUND THE PRICE OF SUCH PRODUCTS AT THE PRO RATA CONTRACT RATE PROVIDED THAT, IF NASCO SO REQUESTS, BUYER SHALL, AT NASCO’S REASONABLE EXPENSE, RETURN SUCH PRODUCTS TO NASCO.
(c) Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Products. Third-Party Products are not covered by any limited Products warranty. For the avoidance of doubt, NASCO MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND REGARDING THE THIRD PARTY PRODUCTS, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, INCLUDING ANY EXPRESS, IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(d) WITHOUT LIMITING THE GENERALITY OF THE FOREGOING IN SECTION 8, BUYER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY PRODUCTS, WHETHER IN TERMS OF GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY NASCO, BY WAY OF TECHNICAL ADVICE, RECOMMENDATIONS, CONSULTATION, SUGGESTIONS OR OTHERWISE, RELATED TO THE USE OF THE PRODUCTS.
9. Limitation of Liability.
(a) NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL NASCO BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, ENHANCED, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING ANY LOST PROFITS OR REVENUE, DOWN TIME, LOSS OF BUSINESS OPPORTUNITY, DIMINUTION IN VALUE OR OTHER ECONOMIC LOSSES), WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT NASCO 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 NASCO’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY BUYER TO NASCO FOR THE PRODUCTS WHICH ARE THE SUBJECT OF THE APPLICABLE CLAIM.
10. Intellectual Property Rights. Nasco, its licensors and third party providers are and will remain the sole and exclusive owners of all intellectual property rights in and to each Product and any related specifications, instructions, documentation or other materials, including, but not limited to, all related copyrights, patents, and trademarks and other intellectual property rights. Buyer does not and will not have or acquire any ownership of these intellectual property rights in or to the Products, or of any intellectual property rights relating to those Products. Buyer shall not: (i) take any action that may interfere with any of Nasco’s rights in or to Nasco’s intellectual property rights in and to the Products; (ii) make any claim or take any action adverse to Nasco’s ownership of Nasco’s intellectual property rights in and to the Products; (iii) alter, obscure or remove any of trademarks, copyright notices, patent or patent pending notices, or any other proprietary rights notices or information placed on the Products or their labels, packaging or containers; or (iv) alter, adapt, copy, modify, create a work of, reverse engineer or otherwise attempt to discover any source code for any part of the Products or the intellectual property rights of Nasco.
11. Buyer Indemnification. Buyer shall defend, indemnify and hold Nasco and its parent company, affiliates and subsidiaries and their respective officers, directors, owners and agents harmless from and against any and all third-party claims, causes of action, proceedings, losses, damages, liabilities, judgment, settlements, costs and expenses (including, without limitation, actual attorneys’ fees and other costs and expenses of litigation) resulting from or otherwise connected with any of the following: (a) bodily injury, death or property damage caused by Buyer or its employees’ or agents’ acts or omissions with respect to their use of the Products; and (b) any breach of the terms and conditions of the Agreement by Buyer or its employees or agents.
12. Compliance with Law; Obligations. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under the Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Products under the Agreement (including, without limitation, US export control laws and regulations, including the Export Administration Regulations and the International Traffic in Arms Regulations). Buyer assumes all responsibility for shipments of Products requiring any government import clearance. Buyer shall not, and shall not permit any third parties to, directly or indirectly, export, reexport, release, sell, re-sell, transfer or otherwise dispose of any Products to any jurisdiction or country to which, or any person or entity to whom, the export, reexport, release, sale, re-sale, transfer or disposal of any Products is prohibited by applicable federal or foreign law, regulation, or rule.
13. Confidential Information. All non-public, confidential or proprietary information of Nasco, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, source code, software, business operations, customer lists, pricing, discounts or rebates, disclosed by Nasco to Buyer, 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 the Agreement (“Confidential Information”) is confidential, solely for the use of performing the Agreement and may not be disclosed or copied unless authorized in advance by Nasco in writing. Upon Nasco’s request, Buyer shall promptly return all documents and other materials and Confidential Information received from Nasco. Nasco shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain, other than as a result Buyer’s breach of this Section; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third-party. Buyer’s confidentiality obligations under this Section are effective as of the effective date of the Agreement and will expire three (3) years from the expiration or termination of the Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of the Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
14. Force Majeure. Nasco shall not be liable or responsible to Buyer, nor be deemed to have defaulted under or breached the Agreement, for any failure or delay in fulfilling or performing any term or condition of the Agreement, when and to the extent such failure or delay is caused by or results from the following force majeure events (each a “Force Majeure Event”): acts of God; flood, fire, explosion, tornado, earthquake, hurricane or other natural disaster; epidemic, pandemic, viral or bacterial outbreak; war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riots or other civil unrest; governmental orders, laws, emergency proclamations, or quarantine restrictions; actions, embargoes or blockades in effect on or after the effective date of the Agreement; action by any governmental authority; national or regional emergency; shortage or unavailability of materials; shortage or unavailability of labor, strikes, labor stoppages or slowdowns or other industrial disturbances; shortage or unavailability of adequate power or transportation facilities; and/or other events (whether or not foreseeable or similar in type or nature to the previously listed Force Majeure Events) beyond the control of Nasco. Nasco shall resume the performance of its affected obligations as soon as reasonably practicable after the removal of the cause of the Force Majeure Event.
15. Waiver. No waiver by Nasco of any of the provisions of the Agreement is effective unless explicitly set forth in writing and signed by Nasco. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from the 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.
16. Amendment and Modification. The Agreement may only be amended or modified in a writing which specifically states that it amends the Agreement and is signed by an authorized representative of each party.
17. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of Nasco. 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 the Agreement.
18. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the 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.
19. No Third-Party Beneficiaries. Except for indemnification under Section 11, the 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.
20. Governing Law. All matters arising out of or relating to the Agreement are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York.
21. Arbitration. Any legal suit, action, or proceeding arising out of or relating to the Agreement shall be settled by binding arbitration before a single arbitrator, with such arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules in effect on the date the proceeding is initiated. The arbitrator shall apply the substantive laws of the State of New York. The arbitration hearing and all related proceedings shall be conducted in New York, New York in English. The arbitrator shall be neutral and independent from either party and knowledgeable in the subject matter of the dispute. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. Notwithstanding anything in this Section to contrary, the parties expressly agree that a court of competent jurisdiction may enter a temporary restraining order or an order enjoining a breach of these Terms pending a final award or further decision or order by the arbitrator. Such remedy, however, shall be cumulative and nonexclusive, and shall be in addition to any other remedy to which the parties may be entitled. The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision in this Section is void, voidable or otherwise invalid. If any provision of this Section is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced. Except to the extent required by applicable law or as may be necessary to enforce their respective rights and remedies under this Section, the parties agree to keep confidential the nature of dispute to be submitted to arbitration, all submissions made by the parties in connection with any arbitration proceeding or hearing, and the content of the arbitration proceedings and hearings.
22.Notices. All notices, requests, 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 Confirmation 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), e-mail (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Additionally, all email notices to Nasco shall also be sent to [email protected]. Except as otherwise provided in the 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.
23.Severability. If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
24.Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of the Agreement including, but not limited to, the following: Sections 6 – 13 and 15 – 24.
25.ALEX/AXEL Product Software Sublicense and Renewal Fees.
(a) Nasco or its licensors exclusively own all intellectual property in the Nasco “ALEX” and “AXEL” Products (each a “Nasco Simulator”). The Nasco Simulators contain and utilize certain software (“Vendor Software”), which is owned by a third party software vendor (“Software Vendor”) and has been licensed to Nasco. Buyer’s access and use of the Vendor Software is subject to Buyer agreeing to Software Vendor’s terms and conditions for the Vendor Software, which will be provided to Buyer online or in electronic or printed form by the Software Vendor (“Software Vendor Terms”). Upon payment of all amounts and subscription fees relating to the Nasco Simulators, Buyer is granted a limited, revocable, non-sublicensable, non-exclusive sublicense to use the Vendor Software solely in accordance with and subject to this Agreement, the Software Vendor Terms, and any user documentation Nasco (or Software Vendor) may provide, including any and all updates, upgrades, new versions and replacements of the Vendor Software (all of which becomes part of the Vendor Software). Buyer may not rent, lease, sublicense or otherwise transfer any rights in the Vendor Software or the Nasco Simulators to a third party. Buyer may not alter, reproduce, adapt, distribute, display, publish, reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code which is derived from the Vendor Software or the Nasco Simulators. Buyer shall defend, indemnify, and hold Nasco harmless from any claims, liabilities, or damages, including actual attorneys’ fees, caused in whole or in part by any violation of this sublicense or any other misuse of the Vendor Software or the Nasco Simulators.
(b) Buyer acknowledges and agrees that the “ALEX” Nasco Simulators come with a subscription to the Vendor Software for five (5) years from the date of Buyer’s registration if Buyer purchased an “ALEX Lite”, “ALEX Plus”, or “ALEX Pro” Nasco Simulator (the “Initial Software License Term”). AFTER EXPIRATION OF THE INITIAL SOFTWARE LICENSE TERM, IN ORDER TO ACCESS OR USE THE VENDOR SOFTWARE WITH THE “ALEX” NASCO SIMULATORS (INCLUDING ALL ONLINE OR COMPUTERIZED SIMULATION FUNCTIONALITY AND FEATURES), BUYER MUST ADDITIONALLY PAY FOR ANNUAL VENDOR SOFTWARE SUBSCRIPTION RENEWALS, IN ACCORDANCE WITH THE THEN-CURRENT PRICING.
If you have any questions about these Terms, please contact us at: [email protected]
Last Updated: August 15, 2023