1. PRICE. The price for ASC's products are specified unless otherwise agreed by ASC and the purchaser as reflected in ASC's invoice. All prices are exclusive of transportation and insurance costs, duties, and all taxes.
2. DELIVERY AND RISK OF LOSS. Unless otherwise agreed in writing, sales are FCA 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. Unless otherwise agreed in writing, delivery dates are estimates and delivery time is not of the essence. Unless otherwise agreed in writing, ASC does not accept liability for any loss arising from delay in delivery of products. Orders received prior to 4.00 pm EST will ship same day (subject to availability). All orders are shipped ground service unless specified by the purchaser.
3. PAYMENT TERMS. Unless otherwise agreed in writing, payment terms shall be net thirty (30) days from the date of invoice, 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. 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. RETURN POLICY. ASC accepts the return of unopened product boxes within 90 days of the shipment date. There is a 25% restocking fee for all returns and the purchaser assumes all shipping expenses.
5. LIMITED WARRENTY. American Surgical Company (“ASC”) warrants that its devices are free from defects in material and workmanship at the time of delivery to Customer. The devices have been manufactured in the USA subject to USFDA and ISO 13485:2012 control. In the event of a breach of the foregoing warranty, ASC will either (a) repair or furnish a replacement for such defective device or (b) issue a credit for the purchase price of the defective device. The foregoing warranty is in lieu of all other warranties, expressed or implied, and ASC expressly disclaims all other warranties including, without limitation, warranties of merchantability AND warranties of fitness for a particular purpose, and no warranties shall be created under the uniform commercial code, custom or usage in the industry or any course of dealing between the parties. The user of these medical devices must determine their suitability for any medical procedure.
IN NO EVENT SHALL ASC be liable whether for breach of warranty or any other breach of this Agreement, and regardless of whether the form of action is based on contract, tort (including negligence), strict liability, statute, or otherwise, FOR loss of production and profits, lost revenues, lost business operations or any incidental, indirect, consequential, or other damages incurred by customer or any third party.
American Surgical Company’s agreement to provide the devices at the price and on the terms set forth herein reflects such allocation and limitation.
The allocation of liability and limitation of liability set forth above represents the agreed upon and bargained for understanding of the parties as to the matters referred to herein.
6. LIMITATION OF LIABILITY. The liability of ASC for any claim arising out of or in connection with a breach of warranty or any other claim relating to the ASC product shall not exceed the amount paid to ASC by purchaser with respect to the sale of the specific product or products cited in such claim. In no event shall ASC be liable to purchaser for loss of profits, or for incidental, indirect, special, consequential or other similar damages, even if ASC has been advised of the possibility of such damages or losses.
7. APPLICABLE LAW. All matters and issues 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 conflicts of law principles. Venue and jurisdiction of all actions relating to the performance or interpretation of this Agreement may be brought only in the courts of The Commonwealth of Massachusetts located in Boston, Massachusetts. The parties consent to personal jurisdiction in the courts described in this section for the purpose of all actions, and waive all objection to venue and the right to assent that a court chosen under this section is improper based on the doctrine of forum non conveniens.