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Effective July 21, 2020; Modification; Mask On Every Face, LLC.; maskoneveryface.com
These Terms and Conditions of Sale (“Terms”) are effective for all Purchase Orders (defined below) placed by any buyer (“Buyer”) with MASK ON EVERY FACE Medical, (US) LLC (“MASK ON EVERY FACE”) on or after July 21, 2020 (the “Effective Date”). Except as to any security agreements, or unless otherwise agreed in writing by MASK ON EVERY FACE, on and after the Effective Date, these Terms will supersede all prior terms and conditions regarding the purchase by Buyer and sale by MASK ON EVERY FACE of and any all medical equipment and other medical products manufactured or sold by MASK ON EVERY FACE (the “Products”). MASK ON EVERY FACE reserves the right to further modify these Terms from time to time (the “Modified Terms”) either upon written notification to Buyer by U.S. Mail, electronic mail or by posting any changes on the MASK ON EVERY FACE website (www.MASK ON EVERY FACEmedical.com) (the “MASK ON EVERY FACE Website”), with the most current Terms on the MASK ON EVERY FACE Website and the Effective Date of these Terms to be at the time Buyer thereafter places a Purchase Order. THE MODIFIED TERMS SHALL BE EFFECTIVE FOR ALL PURCHASE ORDERS PLACED BY BUYER WITH MASK ON EVERY FACE ON OR AFTER THE EFFECTIVE DATE SET FORTH THEREIN. BUYER SHALL BE DEEMED TO HAVE ACCEPTED THESE TERMS AND ANY MODIFIED TERMS UPON THE EARLIER TO OCCUR OF (I) BUYER SIGNING OR OTHERWISE AUTHENTICATING THESE TERMS, OR (II) BUYER CONTINUING TO USE THE MASK ON EVERY FACE WEBSITE AND/OR PLACING A PURCHASE ORDER WITH MASK ON EVERY FACE BY ANY METHOD AFTER THE APPLICABLE EFFECTIVE DATE. PLEASE NOTE THAT BY ACCESSING OR USING ANY PART OF THE WEBSITE OR PLACING ANY PURCHASE ORDERS, BUYER AGREES THAT BUYER HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY THESE TERMS AND ANY MODIFIED TERMS, INCLUDING THE DISPUTE RESOLUTION PROCEDURES. IF BUYER DOES NOT AGREE TO BE SO BOUND, BUYER SHOULD NOT ACCESS OR USE THE WEBSITE OR PLACE ANY PURCHASE ORDERS.
Health Insurance Portability and Accountability Act (HIPAA)
MASK ON EVERY FACE may receive Protected Health Information (“PHI”) from you from time to time. By accepting these Terms, Buyer accepts the Business Associate Agreement executed by MASK ON EVERY FACE posted on the MASK ON EVERY FACE Website (www.MASK ON EVERY FACEmedical.com) and available to Buyer upon Buyer’s request.
Buyer may order Products and parts by telephone (MASK ON EVERY FACE’s invoice to Buyer for the Products without further written confirmation shall be conclusive evidence of such order), facsimile, online through the MASK ON EVERY FACE Website or other written communication except as provided below (each, a “Purchase Order”), identifying the Products or parts by number, quantity, purchase price, address for delivery, requested date of shipment and any special shipping instructions. All Purchase Orders are subject to acceptance by MASK ON EVERY FACE in its sole discretion. Any terms or conditions in any Purchase Order, which are inconsistent with, or are in addition to these Terms, shall be null and void. MASK ON EVERY FACE shall use reasonable efforts to timely fill orders accepted by MASK ON EVERY FACE subject to availability, demand, inventory and other factors. On any Purchase Order accepted by MASK ON EVERY FACE, but not yet shipped, MASK ON EVERY FACE shall use its reasonable efforts to accommodate Buyer’s request for cancellations or alterations; provided that MASK ON EVERY FACE may impose a reasonable material, labor, storage or cancellation charges.
Orders Internet Based Dealers
MASK ON EVERY FACE will only accept Purchase Orders from, and otherwise sell Products to Web or Internet Based Dealers subject to and conditioned upon such Buyer first meeting the additional criteria, terms and conditions of the Addendum to Terms and Conditions of Sale-Authorized On-line Retailers Agreement.
Products and Pricing
MASK ON EVERY FACE reserves the right to change, without prior notice, the design, construction, and type of materials used in the manufacture of any of its Products. MASK ON EVERY FACE further reserves the right to discontinue, without prior notice, any of its Products and/or replacement parts therefore. MASK ON EVERY FACE may further change the prices of its Products at any time and without prior notice unless otherwise agreed in writing by MASK ON EVERY FACE to expressly provide prior notice to Buyer. MASK ON EVERY FACE will make reasonable effort to provide advance notice when possible. Billing and payment shall be in US Dollars, unless otherwise agreed in writing by the parties.
Buyer must pay for all Products in accordance with the payment terms set forth on MASK ON EVERY FACE’s invoice unless otherwise agreed in writing by MASK ON EVERY FACE. Any payment not made when due shall accrue interest up to the rate of 1.5% per month (18% A.P.R.) until paid in full. In the event Buyer fails to make a payment when due, Buyer shall pay all reasonable costs of collection, including reasonable attorneys’ fees. Buyer agrees to pay a $25.00 service charge on any returned check. MASK ON EVERY FACE reserves the right to institute a fee to be paid by the buyer for using a credit or debit card to pay for product. In the event that MASK ON EVERY FACE does start to charge Buyer a fee for paying for product by credit or debit card MASK ON EVERY FACE will notify the Buyer in advance, within a reasonable period of time, of said charges. If a payment is not made in accordance with the applicable payment terms, MASK ON EVERY FACE may suspend all further deliveries, or require full or partial payment in cash, in advance, on new orders. All prompt pay discounts must be taken at the time of payment of the invoice, with no backdating allowed. Credit card payments will not apply to or be eligible for prompt pay discounts. Any rehabilitation Product “secondary discounts” will apply only if payment is made within the applicable payment terms. Unless specifically directed to the contrary, all payments will be applied to the oldest unpaid invoice first.
Freight and Handling Terms
All freight and handling terms applicable to the purchase of Products and parts by Buyer from any division of MASK ON EVERY FACE shall be posted on the MASK ON EVERY FACE Website (www.MASK ON EVERY FACEmedical.com) and available to Buyer upon Buyer’s request and may be modified by MASK ON EVERY FACE from time to time without additional notice to Buyer. The applicable freight and handling terms for each order shall be the freight and handling terms posted on the MASK ON EVERY FACE website on the date the goods are ordered.
MASK ON EVERY FACE will attempt to combine multiple orders for a single shipment. However, MASK ON EVERY FACE reserves the right to make delivery in installments, which will be separately invoiced, and Buyer shall make payment for installment per invoice terms without regard to subsequent deliveries. Delay in delivery of any installments shall not relieve Buyer of its obligations to accept remaining deliveries.
Delivery and Risk of Loss
Unless otherwise agreed in writing by MASK ON EVERY FACE and Buyer, all Products will be sold “Ex works,” MASK ON EVERY FACE’s works, factory, warehouse, or distribution center. However, MASK ON EVERY FACE shall be responsible for loading of the Products on departure to Buyer’s carrier. Delivery of Products to Buyer's carrier shall constitute delivery to Buyer; thereafter, all risk of loss or damage shall be Buyer’s responsibility, with claims submitted to Buyer’s carrier.
Claims for shortages, errors in delivery or defects apparent on visual inspection must be made in writing to MASK ON EVERY FACE within ten (10) days after receipt of shipment. Buyer’s failure to give timely notice of the same shall constitute unqualified acceptance of such shipment.
Post Audit Claims
Post-audits must be performed on transactions no older than two (2) years prior to the current date. All post-audits must include all documentation used to substantiate claims. Any pricing or promotional claims must include all invoices, purchase orders and promotion requests/deal sheets approved by our staff pertaining to each individual deduction. Postaudits submitted that do not meet these requirements will not be accepted or allowed.
Security Interest; Default Remedies
To secure all of Buyer’s obligations to MASK ON EVERY FACE hereunder and under any other agreement between Buyer and MASK ON EVERY FACE, MASK ON EVERY FACE hereby reserves and Buyer hereby grants to MASK ON EVERY FACE a purchase money security interest in all Products and parts purchased by Buyer from MASK ON EVERY FACE, all inventory consisting of Products purchased from MASK ON EVERY FACE, together with any and all proceeds and other amounts from time to time paid or payable under or in connection with any of the foregoing, upon sale, lease, rental or other disposition or otherwise, whether permanent or temporary and whether voluntary or involuntary, including, without limitation, any and all rents, lease payments, money, cash or cash equivalents, accounts receivable, contract rights, chattel paper, documents, instruments, deposit accounts and general intangibles now existing or hereafter arising from or related to such property. Buyer hereby authorizes MASK ON EVERY FACE to file any and all documents or instruments, including without limitation, financing statements and continuation statements, which are reasonably necessary to perfect or continue such security interest. Buyer may, pursuant to a separate instrument, grant MASK ON EVERY FACE a security interest in collateral other then the equipment mentioned above and, to the extent that the buyer provides this instrument, those security instruments will be in addition to, and not in conflict with, the security interest granted herein. Upon the occurrence of any default by Buyer under these Terms, the Modified Terms and/or any other agreement between Buyer and MASK ON EVERY FACE, MASK ON EVERY FACE shall have all rights provided by the California Uniform Commercial Code and otherwise available by law.
If Buyer submits a claim or request for Medicare or Medicaid payment for Products purchased from MASK ON EVERY FACE, Buyer is responsible for fully and accurately reporting to applicable government agencies all discounts, rebates, incentive payments, bonuses and the like applicable to such Products, including those reflected herein and others which may apply.
Buyer shall be responsible for any duty tax, fee or charge of any nature imposed by any governmental authority upon the sale of Products to Buyer. In the event MASK ON EVERY FACE is required to pay such tax, fee or charge, Buyer shall reimburse MASK ON EVERY FACE within ten (10) days.
A written warranty statement is supplied with each Product (“Written Warranty Statement”). A copy of the Written Warranty Statement is also available from MASK ON EVERY FACE upon request. If the condition of the Product is such as it might or would (subject to these Terms) entitle Buyer to claim damages, to repudiate the Purchase Order, or to reject the Product, Buyer shall first make written request to MASK ON EVERY FACE to fulfill any applicable warranty obligations. To the extent a valid warranty obligation exists, as determined by MASK ON EVERY FACE, MASK ON EVERY FACE shall then be entitled to take corrective actions within a reasonable time in the manner it deems appropriate, including, but not limited to repair or replacement of the Product or refund the price paid for the Product. If MASK ON EVERY FACE takes corrective action, then MASK ON EVERY FACE shall not be liable for any loss or damage of any nature whatsoever arising from and after the initial delivery of the Product or the performance of its warranty obligations. Buyer shall not extend to any end-user warranty terms, which are different than MASK ON EVERY FACE’s standard warranty terms.
Limitation of Liability
EXCEPT AS EXPRESSLY PROVIDED IN MASK ON EVERY FACE’S WRITTEN WARRANTY STATEMENT FOR THE PRODUCT AND THIS AGREEMENT, THE PRODUCT IS SOLD “AS IS”, AND MASK ON EVERY FACE MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, AND THE PARTIES EXPRESSLY EXCLUDE ALL WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND PRODUCT QUALITY. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY INDEMNIFICATION OR OTHERWISE, SHALL MASK ON EVERY FACE BE LIABLE TO BUYER OR ANY CUSTOMER OF BUYER FOR ANY, DIRECT (EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT) INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR DAMAGES OF ANY KIND ARISING OUT OF THE SALE, FUNCTIONING, OR THE USE OF ANY OF THE PRODUCT PROVIDED HEREUNDER, EVEN IF MASK ON EVERY FACE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MASK ON EVERY FACE SHALL HAVE NO LIABILITY TO BUYER (EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT) OR TO ANY CUSTOMER OF BUYER HEREUNDER, AND BUYER AGREES TO HOLD HARMLESS AND INDEMNIFY MASK ON EVERY FACE FOR ANY SUCH CLAIMS. In addition to the foregoing, MASK ON EVERY FACE shall not be liable for (a) any claims arising by reason of death or personal injury except so far as the death or injury is attributable to a failure by MASK ON EVERY FACE to exercise reasonable care; or (b) any lost profits; or (c) any lost revenue or goodwill. As more fully set forth in MASK ON EVERY FACE’s warranty policy, MASK ON EVERY FACE warranty obligations shall not apply to the negligence of Buyer, or end-users of the Products, including without limitation: (i) any use, modification, maintenance, repair or combination with other devices not in accordance with written instructions; (ii) exposure of the Product to accident or natural causes (such as fire, flood, wind, water, power failure); or (iii) operation of the Product beyond its normal useful life.
All terms applicable to the return of Products including, without limitation, authorization requirements for return, short shipment, freight damage, general return goods policy and restock fees (the “MASK ON EVERY FACE Return Policy”) shall be posted on the MASK ON EVERY FACE Website (www.MASK ON EVERY FACEmedical.com) and may be modified by MASK ON EVERY FACE from time to time without additional notice to Buyer. The applicable MASK ON EVERY FACE Return Policy shall be the MASK ON EVERY FACE Return Policy posted on the MASK ON EVERY FACE Website on the date the goods are ordered. Consistent with the MASK ON EVERY FACE Return Policy, Products may be returned to MASK ON EVERY FACE only with prior written permission from an authorized representative of MASK ON EVERY FACE (the “Approved Returns”). All Approved Returns must be shipped at Buyer’s cost as directed in the MASK ON EVERY FACE Return Policy, and must be properly packaged as instructed by MASK ON EVERY FACE. Product returns which are not Approved Returns, not prepaid, or not otherwise consistent with the MASK ON EVERY FACE Return Policy will not be accepted by MASK ON EVERY FACE.
Buyer agrees to indemnify, defend and hold MASK ON EVERY FACE and its parent, subsidiary, or affiliated companies (“Affiliates”), shareholders, directors, officers, employees, agents and assignees harmless from and against any expenses incurred by or claims made against MASK ON EVERY FACE arising out of any negligent actions of Buyer including but not limited to the maintenance, repair or alteration of any Product, or the improper assembly or incorporation of the Product into any other device, actual or alleged breach or violation of any contract, law, rule, regulation, or by-law; libel, slander or other form of defamation; breach of any provision of these Terms; and acts, errors or omissions of Buyer or any of its agents, servants, employees, contractors, partners, shareholders, Affiliates or representatives. For purposes of this indemnification, the term “expenses or claims” shall mean and include (i) all losses, obligations, expenses, actual and consequential damages, taxes and costs reasonably incurred in preparing for, defending or settling any demand, investigation, suit, action, claim, inquiry or proceeding, whether or not a formal inquiry, proceeding or investigation had been commenced; and (ii) reasonable accountants’, legal and expert witness fees, costs of investigation and proof of facts, court costs, other litigation expenses and travel and living expenses. Buyer shall give MASK ON EVERY FACE immediate written notice of any demand, investigation, inquiry, action, suit, proceeding or claim. MASK ON EVERY FACE at its sole option shall have the right to defend at Buyer’s expense any such liability or claims in which either MASK ON EVERY FACE or Buyer or both are named as defendants, or reasonably are expected to be named, and MASK ON EVERY FACE shall not be obligated to mitigate losses. MASK ON EVERY FACE’s conduct of the defence shall not diminish Buyer’s obligation to indemnify MASK ON EVERY FACE hereunder. This indemnity shall continue in full force and effect subsequent to and notwithstanding any termination of these Terms.
MASK ON EVERY FACE shall not be liable for any damage as a result of any delay in performance or nonperformance due to any cause beyond MASK ON EVERY FACE’s reasonable control, including, without limitation, an act of God, act of the Buyer, delays caused by MASK ON EVERY FACE’s suppliers or subcontractors, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown, war, riot, delay in transportation, or inability to readily obtain necessary labor, materials or manufacturing facilities.
“Intellectual Property” means any and all patents, copyrights, trademarks, trade names, trade secrets, and other propriety rights of MASK ON EVERY FACE or its affiliates, and all applications and registrations therefor. Buyer acknowledges that MASK ON EVERY FACE is the exclusive owner or licensee of all rights, title and interest in and to the Intellectual Property embodied in, related to, or associated with MASK ON EVERY FACE Products. Buyer will immediately notify MASK ON EVERY FACE of any and all suspected infringements of any Intellectual Property which may come to the attention of Buyer. MASK ON EVERY FACE will be responsible for taking any action to prevent infringement of the Intellectual Property.
Buyer may become familiar with trade secrets and confidential information of MASK ON EVERY FACE which derive independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from their disclosure or use (“Confidential Information”). Buyer agrees not to disclose or utilize any Confidential Information, including without limitation, Product specifications, prices, discounts, manufacturing costs, ideas, technical data, customer lists and sales reports to which Buyer has been privacy.
MASK ON EVERY FACE may terminate any credit availability within its sole discretion. Buyer understands that MASK ON EVERY FACE is relying on the truth and accuracy of the information provided to MASK ON EVERY FACE in any application for credit, as well as any other information provided to MASK ON EVERY FACE such as financial statements. Buyer authorizes MASK ON EVERY FACE to conduct any credit investigation of Buyer deemed necessary, including, but not limited to personal credit information about guarantors, general partners, proprietors and individual applicants. Buyer hereby explicitly authorizes trade and bank references to release credit information to MASK ON EVERY FACE.
These Terms, any Modified Terms and any other agreement between Buyer and MASK ON EVERY FACE shall be construed in accordance with the laws of the State of California without regard to conflicts of laws. At the election of MASK ON EVERY FACE, any legal action or proceeding with respect to the enforcement of these Terms, the Modified Terms or any agreement between Buyer and MASK ON EVERY FACE may be brought in the state or federal courts in San Diego, California, or Denver, Colorado, or wherever MASK ON EVERY FACE chooses to bring such action. Buyer and any surety or guarantor of Buyer’s obligations to MASK ON EVERY FACE submits to the exclusive jurisdiction of the state and federal courts in the aforesaid courts, and further waives diligence, demand, presentment for payment, notice of nonpayment and protest, and expressly waives all right to the benefit of any statute of limitations, reinstatement, marshaling, forbearance, extension, redemption, offset, setoff and appraisement, as well as any right to trial before a jury with respect to any action or proceeding brought by MASK ON EVERY FACE to the fullest extent permitted by law. Buyer shall be further responsible for MASK ON EVERY FACE’s attorneys’ fees and expenses incurred in enforcing these Terms, the Modified Terms or any agreement between Buyer and MASK ON EVERY FACE, and all such terms shall be binding upon the parties and their respective heirs, executors, administrators, successors and assigns. These Terms, the Modified Terms and any other written agreement between Buyer and MASK ON EVERY FACE contain the entire agreement between the parties related to the transactions contemplated hereby. Failure of MASK ON EVERY FACE to object to provisions contained in any Purchase Order or other communication from Buyer shall not be construed as a waiver of these Terms or the Modified Terms, or an acceptance of any other terms. Any term or condition, which by its nature survive the termination or expiration of these Terms, including but not limited the provisions on warranty, limitation of liability, indemnity, intellectual property and confidential information, shall survive the termination or expiration of these Terms.
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