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| 1. |
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Any order for the purchase of products from Philadelphia Cervical Collar
Company (PCCC) shall be subject to the terms and conditions set forth herein
and no additional deletions or modifications of these terms or any matter
set forth on the face hereof proposed by Buyer in it's printed forms or
otherwise shall bind PCCC unless accepted in writing by an officer of PCCC.
Buyer understands and agrees that these terms and conditions shall apply
to all orders placed at any time by Buyer including any after the order
with respect to which these terms and conditions were first delivered to
Buyer. |
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| 2. |
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Terms of delivery are
F.O.B. point of shipment. Risk of loss/damage and title shall pass to Buyer
upon delivery of the products to the Buyer or carrier, as the case may be.
Unless specifically otherwise set forth, prices do not include the cost
of freight, which is for Buyer's account, or costs or charges for insurance
or any production, sales, use transfer, transportation, excise or other
tax, tariffs, or custom duties, and Buyer will pay directly or be charged
by PCCC for all such costs and/or charges in addition to the price(s) of
the products supplied hereunder and Buyer shall be obligated to pay such
charges and costs on the same terms as apply to payment of the price(s)
hereunder. |
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| 3. |
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Terms of payment, unless otherwise
expressly agreed in writing are net thirty (30) days from the invoice date,
in U.S. Dollars |
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| 4. |
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If Buyer fails to pay when due any amount on an
invoice issued in connection with any order, fails to pay when due any amount
owing to PCCC under any other contract or instrument, is in breach of any
Buyer's obligation to PCCC or any division or subsidiary of PCCC, or if
the financial or business condition or responsibility of the Buyer shall
become impaired or unsatisfactory to PCCC, PCCC's option, to cancel the
order without liability to Buyer, suspend work on the order and/or future
orders and /or withhold delivery of all or part of the products subject
hereto, in all cases without prejudice to any other legal or equitable remedy,
until past due payments are made and satisfactory assurances of payment
is received. Buyer agrees to pay PCCC the cost of collection of over due
invoices, including, without limitation, attorney's fees. All amounts not
paid when due shall bear interest at the lesser of eighteen percent (18.0%)
per annum or at the highest rate permitted by law. PCCC retains a security
interest in all goods delivered under this order to secure payment of amounts
due in respect thereof hereunder, PCCC shall, in addition to the rights
and remedies herein set forth, by entities to all rights and remedies provided
for in the Uniform Commercial Code and other applicable law as from time
to time amended, and at equity. |
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| 5. |
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PCCC is not responsible for delays in delivery on non-performance
resulting from causes beyond PCCC's reasonable control. PCCC's time for
delivery shall be extended by the time required to eliminate such cause
for delay. IN NO EVENT SHALL PCCC BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL,
OR SPECIAL DAMAGES ARISING OUT OF A DELAY OR FAILURE TO DELIVER. Delivery
to Buyer's designated carrier or common carrier F.O.B. point of shipment
shall constitute delivery to Buyer. |
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| 6. |
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Orders are not subject to cancellation or modification, in whole or in part,
after PCCC's acceptance, except with PCCC's written consent. If Buyer cancels
an order after acceptance by PCCC without PCCC's written consent, Buyer
agrees to compensate PCCC for costs and any loss of profits that it may
suffer as a result of cancellation. |
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| 7. |
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Buyer acknowledges that the trademarks Philadelphia Cervical Collar,
Philadelphia, Philly, 1/4", Stabilizer, A-Series, EMT's Choice, Bloc-Head,
One-Piece and Flat-2-Piece are the exclusive property of PCCC. |
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| 8. |
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PCCC
MAKES NO WARRANTY WITH RESPECT TO THE PRODUCTS, EXPRESSED OR IMPLIED, OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, EXCEPT THAT
PRODUCTS SOLD BY THE PCCC SHALL CONFORM TO THE PCCC'S STANDARD SPECIFICATIONS.
PCCC ASSUMES NO RISK WHATSOEVER AS TO THE RESULT OF THE USE OF THE PRODUCTS
PURCHASED. PCCC'S LIABILITY FOR ANY LOSS OR CLAIM INCLUDING ANY CLAIM FOR
BREACH OF ANY WARRANTY, IF APPLICABLE, SHALL BE LIMITED SOLELY TO THE REPLACEMENT
OF DEFECTIVE OR NONCONFORMING PRODUCTS OR, AT THE ELECTION OF THE PCCC,
THE RETURN OF THE PRODUCT AND REPAYMENT OF THE PURCHASE PRICE. PCCC SHALL
NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES. BUYER
SHALL BE LIABLE TO THE PCCC FOR ANY PRODUCT WHICH IS DAMAGED AFTER TITLE
AND RISK OF LOSS PASSED TO BUYER OR FOR ANY PRODUCT TO WHICH BUYER MADE
CHANGES IN FABRICATION, ASSEMBLY OR OTHERWISE. ANY COURSE OF DEALING BETWEEN
PCCC AND ANY THIRD PARTY NOTWITHSTANDING ANY CLAIM WITH RESPECT TO DEFECTIVE
OR NONCONFORMING PRODUCTS SHALL BE DEEMED WAIVED UNLESS PRESENTED IN WRITING
TO PCCC PROMPTLY UPON DISCOVERY OF THE BASIS THEREFORE, AND IN ANY EVENT
WITHIN NOT MORE THAN THIRTY (30) DAYS OF DATE OF INVOICE OF THE PRODUCT. |
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| 9.
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PCCC is under no obligation and shall not indemnify Buyer (and its owners,
directors, officers, employees, affiliates and assignees) from and against
any and all losses, damages (including incidental and consequential damages),
expenses (including court costs, reasonable attorney's fees, interest expense
and amounts paid in compromise or settlement), suits, actions, claims, penalties,
liabilities or obligations (losses) related to, caused by, arising from
or on account of the PCCC's product or PCCC's actions. |
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| 10. |
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Buyer expressly assumes all risk
of patient infringement by reason of its use of product(s) provided hereunder
in combination with other material, or in operation of any process. All
used and applications made of the products are solely at Buyer's risk and
Buyer assumes all risk and liability resulting from the use of the product(s)
delivered hereunder, whether used singly or in combination with other product(s). |
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| 11.
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Buyer agrees to inspect, test and
accept or reject product(s) delivered by or for PCCC within thirty (30)
days after invoice date and all product(s) delivered shall be conclusively
deemed accepted and to conform to contract requirements unless rejection
is made or specific objection or notice of nonconformity is given in writing
within such thirty (30) days period. Buyer must obtain a return goods authorization
(RGA) number before returning products to PCCC. Product returned due to
Buyer error, Buyer shall be charged at least fifteen percent (15%) of the
product cost for handling and restocking by the PCCC. |
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| 12. |
Any action for breach of contract
arising out of PCCC's acceptance of Buyer's orders or products supplied
by PCCC must be commenced within one (1) year of invoice date of the product
in question. |
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| 13. |
The rights and obligations of the parties
hereto and the construction and effect of any contract formed pursuant hereto
shall be governed by the laws of the State of New Jersey. |
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| 14.
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Buyer may not assign orders or any contracts resulting
from orders, in whole or part, without PCCC's prior written consent. |
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| 15. |
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No waiver or modification
of these terms and conditions shall be valid unless made in writing and
signed by an officer of the PCCC. Waiver by PCCC of any breach of any of
these terms and conditions shall not be construed as a wavier of any other
breach. |
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| 16. |
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These terms and conditions of
sale comprise the entire agreement between the Buyer and PCCC as to the
subject matter herein. |
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