AMERICAN SURGICAL COMPANY
STANDARD TERMS AND CONDITIONS OF SALE
These Standard Terms and Conditions of Sale (“Terms”) govern all sales of products by American Surgical Company (“ASC”) to the purchaser identified in the applicable purchase order or invoice (“Purchaser”). By submitting a purchase order or accepting delivery of any ASC product, Purchaser agrees to be bound by these Terms. These Terms supersede any conflicting or inconsistent terms in any Purchaser document.
1. PRICE
The price for ASC’s products shall be specified in ASC’s then-current price list or as otherwise agreed in writing between ASC and Purchaser, as reflected in ASC’s invoice. All prices are exclusive of transportation costs, insurance, duties, and all applicable federal, state, local, or international taxes, including without limitation sales tax, use tax, or value-added tax (“VAT”). Any such taxes, duties, or charges imposed on the transaction shall be the sole responsibility of Purchaser.
ASC reserves the right to adjust pricing with reasonable notice to reflect changes in raw material costs, regulatory requirements, tariffs, or other market conditions. Quoted prices are valid for thirty (30) days from the date of quotation unless otherwise stated in writing.
2. DELIVERY AND RISK OF LOSS
Unless otherwise agreed in writing, sales are made on FCA (Free Carrier) terms at ASC’s place of business, meaning that the title and risk of loss transfers when the products are delivered to the common carrier at ASC’s place of business, that the cost of shipping is the purchaser’s responsibility, with shipping being arranged either by purchaser or by ASC on the purchaser’s behalf; however, such arrangement does not alter the transfer of risk
Unless otherwise agreed in writing, delivery dates are estimates and delivery time is not of the essence. ASC shall not be liable for any loss, damage, or expense arising from delays in delivery, including delays caused by carriers, supply chain disruptions, or other circumstances beyond ASC’s reasonable control. Partial shipments are permitted unless expressly prohibited in writing.
Purchaser must inspect all shipments upon receipt and must notify ASC in writing of any claim for shortage, damage, or nonconforming product within five (5) business days of receipt. Failure to provide timely notice shall constitute acceptance of the shipment as delivered.
3. PAYMENT TERMS
Unless otherwise agreed in writing, payment terms shall be net thirty (30) days from the date of invoice. Purchaser agrees to pay interest on any past due amounts at a rate equal to the lesser of one and one-half percent (1.5%) per month and the maximum amount permitted by law, calculated on a daily basis from the invoice due date until the date of payment.
Unless otherwise agreed in writing, all payments are to be in United States dollars. For contracts outside the United States, ASC may require payment to be secured by an irrevocable letter of credit or a bank guarantee acceptable to ASC. Where payment is made by letter of credit, all costs of collection shall be for purchaser’s account.
ASC reserves the right to (a) modify Purchaser’s payment terms or credit limit based on Purchaser’s creditworthiness or payment history, (b) require prepayment or other security before accepting or processing any order, and (c) suspend shipment of any pending or future orders if Purchaser has any outstanding past-due balance. ASC’s exercise of any of these rights shall not constitute a breach of contract or waiver of any other rights or remedies.
In the event that ASC is required to bring legal action to collect delinquent accounts, the purchaser agrees to pay ASC’s reasonable attorney’s fees.
4. PURCHASE ORDERS AND ORDER ACCEPTANCE
All purchase orders submitted by Purchaser are subject to written acceptance by ASC and shall not be binding on ASC until ASC issues a written order confirmation or ships the products, whichever occurs first. ASC reserves the right to accept or reject any purchase order, in whole or in part, at its sole discretion.
Submission of a purchase order constitutes Purchaser’s unconditional agreement to these Terms in their entirety. Any additional, different, or conflicting terms or conditions contained in any Purchaser purchase order, acknowledgment, or other document are hereby rejected and shall be of no force or effect, unless expressly agreed to in a separate written agreement signed by an authorized officer of ASC. The parties expressly intend that these Terms shall prevail in any “battle of the forms” scenario.
No modification, amendment, or waiver of these Terms shall be binding on ASC unless made in writing and signed by an authorized officer of ASC. No course of dealing, course of performance, or trade usage shall operate to modify these Terms.
Once a purchase order has been accepted and confirmed in writing by ASC, Purchaser may not cancel or modify the order without ASC’s prior written consent. If ASC consents to a cancellation or modification, Purchaser shall be liable for all reasonable costs and expenses incurred by ASC up to the date of such cancellation or modification, including costs of materials, labor, overhead, and any applicable cancellation or restocking fees. Cancellation of confirmed orders for custom or discontinued products shall not be permitted under any circumstances, unless the product is defective or the return is caused by an ASC error.
5. RETURN POLICY
To initiate a return, Purchaser must send an email to customerservice@americansurgical.com to receive a Return Merchandise Authorization (“RMA”) number. The following information must be included in the request:
- ASC Invoice Number
- Customer PO Number
- Product Number
- Lot Number
- Quantity To Be Returned
- Reason for Return
- Contact Information
ASC accepts the return of unopened and unused product in it’s original, undamaged packaging within thirty (30) days of the shipment date, provided a valid RMA number has been issued. The box seal must not be broken. No returns will be accepted without a valid RMA number visibly marked on the outside of the return package. An RMA will be voided if product is not received within 30 days of the date the RMA is issued. Shipments with an invalid or expired RMA number will be refused and returned to shipper, freight collect.
A restocking fee of ten percent (10%) of the original invoice value applies to all returns of non-defective products. Purchaser is responsible for all return shipping expenses. Under no circumstances will a return of non-defective products be accepted after sixty (60) days from the original invoice date. Discontinued or custom products are not eligible for return unless the product is defective or the return is caused by an ASC error. Credits issued for approved returns will be applied within fifteen (15) business days of ASC’s receipt and inspection of the returned product.
For defective product returns, Purchaser should call 1-800-343-0060 or email Customer Service at customerservice@americansurgical.com for instructions. ASC will cover shipping expenses for replacement products and returned defective products. Purchaser may elect to receive either replacement products or a credit memo for defective products. There is no restocking fee for defective products or returns caused by an ASC error.
Product recalls, if applicable, will be handled in accordance with ASC’s recall procedures and applicable regulatory requirements. Recall-related returns are not subject to standard return policy restrictions.
6. LIMITED WARRANTY.
ASC warrants that these devices are of merchantable quality and free from material defects as of the date of delivery. This warranty is conditioned upon products being used in accordance with ASC’s applicable instructions for use and being stored and handled appropriately. THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NONE SHALL BE CREATED WHETHER UNDER THE UNIFORM COMMERCIAL CODE, BY CUSTOM OR USAGE IN THE INDUSTRY, OR COURSE OF DEALINGS.
ASC’s products are medical devices regulated under applicable law. The user of these medical devices is solely responsible for determining the suitability of any product for any particular medical procedure, patient, or clinical application. ASC makes no representation that any product is appropriate for any specific use or patient population. ASC’s products comply with applicable FDA regulatory requirements as of the date of manufacture.
Warranty claims must be submitted to ASC within the applicable warranty period as specified in product documentation, or if not specified, within thirty (30) days of discovery of the alleged defect. Warranty claims must be accompanied by a description of the defect and the relevant ASC invoice information.
7. LIMITATION OF LIABILITY.
The total aggregate liability of ASC for any claim arising out of or in connection with a breach of warranty or any other claim relating to an ASC product shall not exceed the amount actually paid by Purchaser to ASC with respect to the specific product or products giving rise to such claim.
IN NO EVENT SHALL ASC BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR OTHER SIMILAR DAMAGES, EVEN IF ASC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
The limitations set forth in this Section 7 shall apply to the fullest extent permitted by applicable law, regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise.
8. FORCE MAJEURE.
ASC shall not be liable for any failure or delay in performance under these Terms to the extent such failure or delay is caused by circumstances beyond ASC’s reasonable control, including without limitation acts of God, natural disasters, fire, flood, epidemic, pandemic, war, terrorism, government action, labor disputes, supplier failures, transportation disruptions, or shortages of materials or energy (each, a “Force Majeure Event”).
Upon the occurrence of a Force Majeure Event, ASC shall notify Purchaser in writing as soon as reasonably practicable and shall use commercially reasonable efforts to resume performance. If a Force Majeure Event continues for more than sixty (60) days, either party may terminate any affected order upon written notice without liability to the other party, except for amounts already due and owing.
9. COMPLIANCE WITH LAWS.
Purchaser shall comply with all applicable federal, state, local, and international laws and regulations in connection with the purchase, handling, storage, distribution, and use of ASC’s products, including without limitation laws governing medical devices, healthcare, export controls, anti-bribery and anti-corruption, and data privacy.
Purchaser represents and warrants that it is not subject to any sanctions, trade restrictions, or export control prohibitions that would prohibit it from receiving or using ASC’s products. Purchaser shall not export or re-export any ASC product in violation of applicable export control laws or regulations.
10. APPLICABLE LAW AND VENUE.
These Terms and all matters arising out of or relating to the purchase and sale of products from ASC shall be governed by and construed in accordance with the laws of The Commonwealth of Massachusetts, without reference to its conflicts of law principles.
All legal actions or proceedings arising out of or relating to these Terms shall be brought exclusively in the state or federal courts located in Boston, Massachusetts. The parties hereby irrevocably consent to the personal jurisdiction of such courts and waive all objections to venue, including any objection based on the doctrine of forum non conveniens.