GENERAL. These terms and conditions are integral to the agreement governing the sale and purchase of goods (“Goods”) and service (“Service”) between the seller, Ventilators Plus Inc. (“Seller”), and the customer (“Buyer”). Goods and Service are referred to herein collectively as “Products.” These terms and conditions 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 and such Buyer’s terms and conditions are hereby expressly rejected and excluded. Fulfillment of Buyer's Purchase Order does not constitute acceptance of any of Buyer terms and conditions and does not serve to modify, amend, or supplement these terms and conditions. This contract shall not be assigned, modified, or cancelled without the prior written consent of the contracting Seller, and any attempt to assign, modify, or cancel it without such consent shall be absolutely void.

 

PRICES, PAYMENT TERMS, AND TAXES.

Prices. The prices shall be as stated on the applicable quote, provided that such quote is valid at that time. In all other cases, prices are those currently in effect on Seller’s standard price list at time of shipment. Prices exclude charges for freight, handling fees, unloading, storage, insurance, taxes, duties, or other charges related to Products. Seller reserves the right to correct any pricing error, including without limitation typographical errors, formulas, discount calculations, product identification and valuation errors, or billing errors.

 

Payment Terms. Unless otherwise agreed in writing, Buyer shall make payment in full without any set-off (for any reason) no later than 30 days from the date of invoice in United States Dollars (“USD”). Partial shipments of Products shall be invoiced as shipped. Seller reserves the right to require (a) payment in advance, (b) cash on delivery, or (c) a modification of credit terms. Seller reserves the right in the event of late payment, to suspend all deliveries or Service or to cancel any of its outstanding obligations under this Agreement. If Buyer pays less than the full amount due, the payment will be applied toward the outstanding balance. Seller’s acceptance of part of the amount due shall not interfere with Seller’s right to recover the balance of the amount due or right to pursue any other right or remedy under the law.

 

Taxes. If Buyer claims a tax exemption, Buyer must provide a valid, signed certificate or letter of exemption for each respective jurisdiction. Unless otherwise specified, prices exclude all sales, use, excise, value added, taxes, and all duties, customs, import charges, and fees imposed with respect to the sale of any Products or services provided by Seller; and all such taxes, duties, and fees, where applicable, must be paid by Buyer.

 

DELIVERY. Purchase Orders designated for shipment will be shipped to the destination specified by Buyer, and unless stated otherwise in writing, shall be shipped Free on Board (“FOB”) Origin, Freight Prepaid, and Charged Back, meaning that Buyer is responsible for all packaging, shipping, handling, and processing costs, which must be paid by Buyer prior to shipment, and Buyer owns the Products and bears the risk of loss once Seller delivers the Products to the carrier. Unless otherwise specifically expressed, partial shipments shall be deemed acceptable. Seller will use commercially reasonable efforts to meet the scheduled dates for shipment and delivery but does not guarantee any delivery or completion date. Seller shall not be liable for any loss, damage, expense or charge of any kind resulting from delay in shipment or delivery.

 

TITLE AND RISK OF LOSS OR DAMAGE. Despite any agreement with respect to delivery terms or prepayment of transportation or insurance charges, the title and risk of loss or damage shall pass to Buyer, and delivery shall be deemed to be complete, upon delivery to a private or a common carrier or upon moving the Products into storage, whichever occurs first.

 

CHANGES AND CANCELLATION. Purchase Orders accepted by the Seller are not subject to changes or cancellation by the Buyer, except with the Seller’s written consent. Any attempt by Buyer to reduce, modify or cancel any order without Seller’s prior written consent shall be void and of no force and effect, and Buyer shall remain liable to pay for the order at the full agreed price. If Seller agrees in writing to any reduction or cancellation of an order, then such agreement may be conditioned upon (a) payment for non-reimbursable travel charges (b) payment of a cancellation fee determined by Seller, (c) reimbursement from Buyer to Seller for any loss on materials purchased or on contract for completion of the order and/or (d) reimbursement from Buyer to Seller for any other losses incurred by Seller. This includes, but is not limited to, all blanket orders, even those without firm release dates scheduled.

 

ACCEPTANCE. Buyer shall inspect Products received and notify Seller of any Nonconforming Products prior to acceptance. Products shall be deemed to be accepted by Buyer twenty-one (21) days from date of shipment; earlier acceptance shall occur immediately on the first day Buyer uses Products. For this purpose, “Nonconforming Products” means Products that are different from those identified on the Purchase Order confirmation or Products with label or packaging that incorrectly identifies contents. Seller shall, at its sole discretion, replace Nonconforming Products with conforming Products, credit or

 

refund the price of Nonconforming Products. Such remedy is an exclusive remedy for Nonconforming Products. Seller shall bear the shipping costs related to return and replacement of Nonconforming Products.

 

RETURNS AND RESTOCKING. No return of Products shall be accepted by Seller without a return authorization number (RA#), which shall be issued at Seller’s sole discretion. Except for eligible warranty or Nonconforming Products, if Seller accepts a return in writing, then such acceptance may be conditioned upon payment of a restocking fee of up to twenty percent (20%) of Buyer’s purchase price. For Product complaints and/or returns, contact the Seller customer service department via e-mail at CS@ventilatorsplus.com. Products returned without authorization may be subject to delay in handling or returned to Buyer, at Buyer’s expense. Except for returns under eligible warranty or Nonconforming Products, all items returned shall be (a) new and unused, (b) in their original packaging (e.g., no additional labels or over labels), (c) not damaged, altered, or impaired in any manner, and (d) otherwise in the same condition as delivered to Buyer. Seller reserves the right to issue credit for defective materials where availability makes replacement impractical. All non-complaint returns for credit are subject to a restock fee upon product inspection and approval of its return to stock.

 

WARRANTY. Seller warrants to Buyer that the Products shall be free from defects in material and workmanship for the warranty period specified within Seller’s quotation, website, and/or invoices for the Products (such warranty period shall commence from the date of the original shipment of the Products). If no period is referenced, then 90-Days after the date of original shipment. If a warranty is designated as pro-rated by Seller, warranty coverage related to refund or credit shall be pro- rata based on the number of months remaining in the warranty period.

 

INDEMNIFICATION. Buyer agrees to indemnify, defend, and hold harmless Seller, affiliates and their respective officers, directors, and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys’ fees and court costs) to the extent arising from or related to (a) Buyer’s breach of any term of this Agreement, (b) the negligence or willful misconduct of Buyer, its agents, employees, representatives, customers, or contractors, or (c) the violation of any regulation or law by Buyer, its agents, employees, representatives, customers, or contractors.

 

GOVERNING LAW AND VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Seller shall not be required to perform its obligations if Buyer has defaulted on its obligations or any other contract involving Seller (e.g., failed to pay). Buyer agrees that any litigation initiated either by Seller or Buyer shall be venued in a court located in Orange County, California, United States, and waives any argument that personal jurisdiction and/or venue in such forums is not proper or convenient.

 

NOTICES. All notices, requests, and other communications, which Buyer is required or desires to give to Supplier, shall be directed to customer service department via e-mail at CS@ventilatorsplus.com. Or notices can be in writing and shall be sent by United States mail or commercial overnight delivery to VENTILATORS PLUS INC, 541 Tamarack Avenue, Brea, CA 92821. Notices hereunder will be deemed to have been given and will be effective upon actual receipt by the other party, or, if mailed, upon the earlier of the fifth (5th) day after mailing or actual receipt by the other party.