MARCO OPHTHALMIC, INC.
STANDARD PURCHASE TERMS AND CONDITIONS
(1) This order is accepted on and subject to the following terms and conditions which may not be modified except in writing signed by Marco Ophthalmic, Inc. (“Seller”) or its duly authorized agent. Seller objects to any different or additional terms contained in any purchase order, offer or confirmation sent or to be sent by Buyer, which are expressly rejected.
(2) Seller shall not be responsible for freight transportation, insurance, shipping, storage, handling, demurrage or similar charges. If such charges are by the terms of sale included in the price, any increase in rates becoming effective after the date these terms and conditions are delivered or deemed delivered shall be for the account of the Buyer. All sales, excise and similar taxes which the Seller may be required to pay or collect with respect to the equipment covered by this order shall be for the account of the Buyer, except as otherwise provided by law.
(3) Seller shall not be liable for delays in delivery or any failure to deliver due to causes beyond Seller’s control.This includes but is not limited to acts of God, war, riots, embargoes, domestic or foreign governmental regulation or orders, fires, floods, labor difficulties, or inability to obtain shipping space or transportation.
(4) ALL EQUIPMENT IS WARRANTED BY SELLER AGAINST DEFECTIVE MATERIAL, AND WORKMANSHIP UNDER NORMAL USE FOR A PERIOD OF ONE YEAR FROM THE DATE OF SHIPMENT TO THE END USER. SELLER HAS THE OPTION TO REPAIR OR REPLACE ANY DEFECTIVE INSTRUMENT UNDER THIS WARRANTY.
THIS WARRANTY APPLIES ONLY TO NEW INSTRUMENTS AND EQUIPMENT AND DOES NOT APPLY TO DEMO OR USED EQUIPMENT OR INSTRUMENTS. FURTHER, THIS WARRANTY DOES NOT APPLY TO INSTRUMENTS OR EQUIPMENT WHICH HAVE BEEN TAMPERED WITH OR ALTERED IN ANY WAY, OR MISUSED OR DAMAGED BY ACCIDENT, CARELESSNESS OR NEGLIGENCE, OR INSTALLED OR OPERATED IN ANY IMPROPER MANNER, OR SERVICED OR REPAIRED OTHER THAN BY THE SELLER OR AN AUTHORIZED SELLER REPRESENTATIVE. EXPENDABLE PARTS, SUCH AS LAMPS, ARE NOT WARRANTED HEREBY.
ALL CLAIMS UNDER THIS WARRANTY MUST BE IN WRITING DIRECTED TO THE SELLER OR THE AUTHORIZED DISTRIBUTOR MAKING THE ORIGINAL SALE AND MUST BE ACCOMPANIED BY A COPY OF THE ORIGINAL INVOICE.
ORIGINAL WARRANTY SERVICE INCLUDES PARTS AND LABOR FOR REPAIR OF THE INSTRUMENT AT A MARCO OR AUTHORIZED DISTRIBUTOR SERVICE DEPOT. BUYER WILL BE RESPONSIBLE FOR FREIGHT OF THEIR INSTRUMENT TO THE SERVICE DEPOT (NO COD’S ACCEPTED) AND ANY COSTS INCURRED FOR USE OF LOANERS AND/OR SHIPPING BOXES.
THE SELLER WILL NOT BE LIABLE FOR ANY EXPENSE OR LOSS ARISING FROM THE USE OF ANY INSTRUMENTS OR EQUIPMENT IN THE MANUFACTURE, SALE, HANDLING, REPAIR OR REPLACEMENT OF ANY PRODUCTS OR FROM THE USE OR INABILITY TO USE THE EQUIPMENT OR INSTRUMENTS FOR ANY PURPOSE, NOR WILL SELLER BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES RELATING THERETO.
BUYER ACCEPTS THE TERMS OF THIS WARRANTY AND AGREES THAT THIS WARRANTY SHALL APPLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WHICH EXCEED THE ABOVE OBLIGATION HEREBY ARE DISCLAIMED AND EXCLUDED, AND NO REPRESENTATIVE IS AUTHORIZED OR ALLOWED TO MAKE ANY OBLIGATION FOR THE SELLER NOT IN ACCORD WITH THIS WARRANTY.
(5) There are no warranties, express or implied, which extend beyond the description expressly provided herein.
(6) Buyer is required to give written notice to Seller of any claim regarding any equipment promptly upon receipt of the equipment and in any event with fifteen (15) days thereafter, and Seller shall thereupon be afforded a reasonable opportunity to inspect the equipment.
(7) If the equipment delivered to Buyer is defective, Seller shall have the right, in its discretion, either to repair the equipment or to refund the purchase price. Equipment shall not be returned to Seller without Seller’s written consent. In no event shall Seller be liable for the costs of processing, lost profits, injury to goodwill, or any other special or consequential damages.
(8) If Seller accepts equipment for return for credit to Buyer, Seller will apply a reduction to the credit of 10% of the purchaser’s invoice cost as a restocking charge plus all costs and expenses incurred by Seller to return the equipment to its original factory new condition. Buyer shall be obligated to pay all costs of freight and Buyer’s other expenses. Seller shall have no obligation to accept returned merchandise except by express written consent.
(9) Unless otherwise indicated in the invoice or purchase agreement (and in the case of a conflict between the invoice and the purchase agreement, the invoice shall prevail), the balance of your order must be paid in full within 30 days from delivery of your order.
(10) If Buyer fails to make payment hereunder when due and payable, Buyer agrees to pay Seller all costs, including reasonable attorney fees expended in collecting overdue amounts and a late payment charge of 1.5% per month on the unpaid balance.
(11) If your order is for the purchase of a MARCO refraction system (i.e., EPIC-XXXX), it is non-returnable. It is at Marco’s discretion to accept the return of an EPIC refraction system. If a unit is returned and Marco resells the refraction system, the original deposit may be refunded less any costs incurred by Marco (including any reduction from original sales price) in reselling the system.
(12) Buyer grants the Seller a security interest in the products sold herein and proceeds thereof to secure full payment therefore. Buyer agrees upon request of Seller, to execute and deliver to Seller a financing statement regarding such products.
(13) This agreement shall be governed by and construed according to the laws of the State of Florida. ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY MAY BE INSTITUTED IN THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA OR THE COURTS OF THE STATE OF FLORIDA IN EACH CASE LOCATED IN THE CITY OF JACKSONVILLE AND COUNTY OF DUVAL, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM AND CONSENT TO THE SERVICE OF PROCESS BY MAIL.
(14) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(15) Buyer acknowledges and agrees that the Seller may assign its obligations to fulfil, and Seller’s right to receive payment for, any order or portions of an order to one of its authorized distributors who agrees to fulfil such order or portion of an order. In the event of any such assignment, Seller shall provide written notice of such assignment (which may be provided via email to a recognized email address of the Buyer) and after delivery of such notice, Buyer shall look to such distributor for fulfilment of the order or portion of the order assigned to the distributor. Seller shall be relieved of all liability or obligations for fulfilment of any order or portion of an order assigned to an authorized distributor who agrees to fulfill such order or portion of an order in accordance with this paragraph.