Unless otherwise expressly agreed in a writing signed by an officer of Probitas Promotions ("Seller"), all sales are subject to the following terms and conditions ("Standard Terms") . These Standard Terms are incorporated by this reference into every offer to sell, Quote, Order, purchase, Order Acknowledgement and invoice issued by Seller.
(a) A "Buyer" is defined as the person or entity named in any Online Order, or in a Quote or Order Acknowledgement, or named in any purchase order or other form prepared by such person or entity, relating to the purchase of the Products.
(b) An "Online Order" is an Order submitted at the Website (as defined below) by the Buyer which has been accepted by Seller in writing.
(c) An "Order" is any offer to purchase the Products made by a Buyer that is accepted in writing by Seller and subject solely to the provisions of these Standard Terms and no other terms of the Buyer (unless otherwise agreed by Seller in writing).
(d) An "Order Acknowledgement" is a final written acknowledgement issued by the Seller with respect to the terms of an Order accepted by the Seller.
(e) "Products" are all of the goods and/or services to be sold by Seller that are referred to in an Order.
(f) A "Quote" is a written final quotation for the sale of Products issued by the Seller.
(g) The "Website" is any website operated by Seller where Products may be purchased.
2. ACCEPTANCE OF ORDER & STANDARD TERMS
Buyer agrees to all of these Standard Terms, and an Order is deemed final and legally binding between Buyer and Seller, once any of the following occurs: (a) Submission of an Online Order by Buyer that has been accepted by Seller in writing; (b) Buyer’s acceptance of Seller’s Quote for the Products; (c) issuance of an Order Acknowledgement by Seller; (d) issuance of a purchase order by the Buyer for the Products; (e) payment by Buyer for all or part of the Products or the payment of any deposit; or (f) acceptance of delivery of all or any part of the Products. Seller objects to and will not agree to any terms that are additional to or different from these Standard Terms. Terms that are printed on or contained in a purchase order or other form prepared by Buyer which are in addition to, in conflict with, or inconsistent with, these Standard Terms shall be deemed material alterations within the meaning of the Uniform Commercial Code and are objected to and rejected, and shall be considered to be inapplicable, and shall have no force or effect. All orders are subject to the written approval of Seller. Seller may refuse or limit any Order for any reason.
3. ENTIRE CONTRACT
The Order, including any final Quote of Seller and/or Order Acknowledgement of Seller associated with the Order, and any non-disclosure agreement entered into between Seller and Buyer relating to such Order (" NDA "), constitutes the final, complete and exclusive statement of all the terms of agreement between Seller and Buyer, and no prior oral or written agreement, or prior purchase order or form shall be a part of or a modification of the Order. No change, modification or waiver of any of the terms of agreement between Seller and Buyer after acceptance of the Order by Seller in writing shall be binding upon Seller unless agreed to in a writing signed by an officer of Seller.
The price for a Product shall be the price stated at the Website or in Seller’s final Quote for the Product or in Seller’s Order Acknowledgement; provided, however, that prices are subject to change without notice until such time as Seller finalizes and accepts an Order in writing. Unless otherwise stated in a Quote, prices for the Product which are stated in a Quote are valid for thirty (30) days from the Quote date. Buyer shall pay any extra costs incurred by Seller as a result of any changes or modifications to Product specifications requested by Buyer. Prices are exclusive of all taxes, fees, duties, levies or other governmental assessments ( "Taxes" ) and, unless otherwise stated at the Website or in a Quote, also exclude costs including but not limited to shipping and handling charges, freight, insurance and other costs which may be separately billed to Buyer. All Taxes related to Product shall be paid by Buyer, or in lieu thereof, Buyer shall provide Seller with a tax exemption certificate acceptable to the relevant taxing authorities.
5. PAYMENT TERMS
For Online Orders payment terms shall be as set forth at the Website. For all other Orders, payment shall be due as set forth in Seller’s Quote, Order Acknowledgement or invoice. If no such payment date is specified, then payment will be due thirty (30) days after the date of Seller’s invoice. All payments must be made in U.S. Dollars. Seller reserves the right to charge at any time a monthly service charge of one and one-half percent (1.5%) or the highest rate allowed by law, whichever is lower, on outstanding amounts that are not paid when due, effective as of the first day after the due date. If Buyer fails to fulfill the terms of payment or does not meet Seller’s continuing credit requirements, Seller will have the option to do one or more of the following: (a) decline to accept an Orders or fulfill pending Orders; (b) require all pending and future Orders to be on a prepaid basis; (c) delay any shipment until payment is received by Seller or further assurances asked for by Seller are received; (d) declare all outstanding sums immediately due and payable; or (e) require payment for all Products delivered hereunder to be made by irrevocable letter of credit in a form approved by Seller. All Orders are subject to current credit approval. From time to time, Seller may review Buyer’s creditworthiness. Buyer agrees to provide Seller with all credit information reasonably requested, and Buyer represents and warrants to Seller that each time Buyer places an Order, all information Buyer has provided is true and correct. All amounts due Seller herein shall not be subject to deduction or offset by Buyer by reason of any counterclaim arising out of this or any other transaction between Seller and Buyer.
6. DELIVERY TIME; TITLE; RISK OF LOSS
Shipping, delivery and performance dates are estimates only, calculated from the date of receipt of Buyer’s Order and any drawings, specifications, designs, samples or other information reasonably requested by Seller to manufacture or source the Products, and time is not of the essence. Seller shall not incur any liability, nor shall any Order be canceled, because or as a result of any delays in meeting shipping or delivery dates or schedules. Seller reserves the right to recalculate any projected shipping, delivery or performance dates upon finalization of Buyer’s Order or at anytime thereafter. Seller may ship all the Products at one time or in portions from time to time. Unless otherwise agreed by Seller in writing, all shipments to points in the U.S. will be delivered by Seller FOB Seller’s facility or other location designated by Seller, and all shipments to points outside the U.S. will be delivered by Seller EXW Seller’s facility (as such term is defined in Incoterms 2010) or other location designated by Seller; provided, however, that unless Buyer advises Seller that it will arrange and take responsibility for shipment of Products from Seller’s facility or other location designated by Seller, Seller will arrange for its freight forwarder and/or carrier(s) to transport the Products to Buyer’s specified location at Buyer’s cost. Title to and risk of loss or damage for all Products will pass to Buyer upon Seller’s delivery of the Products to the carrier or as otherwise provided above. In all cases of damage and/or loss to Products in transit, Buyer will be responsible for making claim(s) against the carrier; provided, however, that Seller will provide reasonable assistance with damage and/or loss claims. Loss of or damage to Products after Products are delivered to the carrier will not relieve Buyer of any obligations for payment or other obligations in the Order. Unless otherwise agreed by Seller in writing, shipping, freight, handling, insurance, and related costs are the sole responsibility of Buyer.
Buyer must inspect delivered Products and report claims for damages, shortages or receipt of wrong products which are discoverable on a visual inspection within 48 hours of delivery (or within five  days if the damage or defect is not discoverable on a visual inspection) or the Products will be deemed irrevocably accepted and such claims will be deemed waived. However, shipping damage claims must be made by Buyer directly with the shipping company in accordance with such company’s policies, which generally require such claims to be made prior to the time the carrier of the Products leaves the delivery destination. Buyer will advise Seller of any such claims. For any valid claim timely made that does not result from the actions of a carrier, Seller, at its option, may repair the Product, or replace the Product with an identical or substantially similar product, or refund or credit the purchase price to Buyer for the affected Product. THESE ARE BUYER’S SOLE AND EXCLUSIVE REMEDIES WITH RESPECT TO SELLER FOR DAMAGED OR MISSING PRODUCT. For defective product, the warranty remedies described herein, if any, shall apply.
8. RETURN & REFUND POLICY
UNLESS OTHERWISE AUTHORIZED BY SELLER IN WRITING, ALL SALES ARE FINAL AND NO RETURNS OR REFUNDS ARE ALLOWED OTHER THAN AS PROVIDED HEREIN . For damaged or missing Product, see Section 7 herein. For defective Product, see Section 11 herein.
After acceptance by Seller, Buyer may not cancel or reduce an Order without Seller’s written consent. Any other changes to an Order requested by Buyer will require the prior written approval of Seller, which approval may be subject to price adjustments or changes to delivery dates as determined on a case-by-case basis. Buyer assumes all responsibility for errors in specifications and Buyer Materials provided to Seller and/or for Products approved by Buyer. Clerical errors in Orders are subject to correction by Seller. Seller may, with or without notice, cancel all or any part of an Order at any time (including after an Order has been submitted or accepted) without liability to Buyer except to refund to Buyer any amounts paid by Buyer for Product not delivered by Seller.
10. FORCE MAJEURE
Seller shall not be labile for any delay or failure of performance where such delay or failure arises from a cause beyond Seller’s reasonable control (a "Force Majeure Event" ). In such event Seller may, at its option and without obligation or liability to Buyer (except to refund to Buyer any amounts paid by Buyer for Product not delivered by Seller), cancel all or any part of an Order, or may delay delivery of Products. Causes beyond Seller’s reasonable control shall include, but not be limited to, fires, floods, severe weather, earthquakes, accidents, riots, civil disorder, acts of war or terrorism, strikes or other labor difficulties, disease, viruses, epidemics, contamination, equipment failure, utilities interruption, inability or delay in obtaining materials or products, carrier delays, embargoes, or any law, order, regulation or other action adopted or taken by any governmental authority, or any other cause not reasonably within Seller’s control, whether or not specifically mentioned herein.
SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCTS NOT MANUFACTURED BY SELLER. Such Products carry the original manufacturer’s warranty (if any) and Buyer must submit warranty claims regarding such Products to the original manufacturer in accordance with such manufacturer’s warranty policies. With respect to Products that are manufactured solely by Seller, Seller warrants to Buyer that such Products will be free from defects in material and workmanship under normal use for a warranty period of ninety (90) days following shipment from Seller. Any disposable Products manufactured by Seller are warranted for single use only. The warranty does not cover and Seller will have no warranty obligation whatsoever with respect to any damage to a Product caused by or associated with: (a) usage not in accordance with Product instructions or usage for a purpose not indicated on the labeling; (b) abuse, misuse, neglect, improper maintenance or storage, accident, vandalism, or the negligence of any party other than Seller; (c) a Force Majeure Event; (d) use of unauthorized third party consumables and accessories with the Product; or (e) modifications or alterations to a Product not authorized by Seller. Seller’s obligations under this limited warranty are contingent on Buyer’s full payment of the Product purchase price. SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE, AND SELLER DOES NOT REPRESENT OR WARRANT THAT ANY PRODUCT WILL MEET BUYER’S REQUIREMENTS. Notice of a defective Product under Seller warranty must be given to Seller in writing within ten (10) days following the discovery of such defect. Any oral or written statement concerning the Products inconsistent with the warranty set forth herein will be of no force or effect. Seller’s sole liability, and Buyer’s exclusive remedy, for a defect in a Product manufactured solely by Seller that is covered under the warranty will be, at Seller’s option, for Seller to either replace or repair the defective Product(s), or refund or credit the purchase price to Buyer.
12. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR, AND EACH PARTY HEREBY EXPRESSLY WAIVES, ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY DESCRIPTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING OUT OF WARRANTY OR CONTRACT, NEGLIGENCE OR OTHER TORT, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, FORESEEABLE BUSINESS LOSSES, LOSS OF PROFITS, AND RELIANCE DAMAGES. BUYER AGREES THAT UNDER NO CIRCUMSTANCES WILL SELLER’S LIABILITY RELATING TO ITS SALE OF PRODUCTS TO BUYER FOR ANY CAUSE EXCEED THE PURCHASE PRICE PAID BY BUYER FOR THE PARTICULAR PRODUCTS INVOLVED.
13. COMPLIANCE WITH LAWS
Unless otherwise expressly stated in writing by Seller, no claim or representation is made or intended (a) that any Product has been cleared, approved, registered or otherwise qualified by Seller with any federal, state, local, provincial, foreign or any other governmental or quasi-governmental agency or regulatory body (collectively, " Regulatory Agencies ") or under any laws, rules or regulations, including but not limited to those governing healthcare and medical products (collectively, " Regulatory Laws "), (b) that any Product will satisfy the requirements of any Regulatory Agencies or Regulatory Laws, or (c) that any Product or its performance is suitable, safe or effective, or has been validated for, any specific use or application. Nothing herein or in any Order shall require Seller to violate any applicable law.
14. RESALE & EXPORT
Unless otherwise agreed by Seller in writing, Buyer agrees that it is purchasing the Products for its own use and not for resale. Accordingly, unless otherwise agreed by Seller in writing, Products purchased pursuant to an Order may not be sold or transferred to any person or entity for purposes of resale. Buyer acknowledges that the Products sold under an Order, and the transaction contemplated by an Order, may be subject to U.S. customs and export control laws and regulations (including but not limited to restrictions on persons, entities and countries who may receive the Products), as well as customs and export laws and regulations of the country in which the Products are received. Buyer acknowledges and agrees that it is Buyer’s sole responsibility to comply with and abide by all such applicable laws and regulations and that Buyer will not export or transfer Products for export in violation of any such laws.
15. MEDICAL DEVICES
If the Product requires medical device registration with the U.S. Food and Drug Administration (is a " Medical Device "), then in addition to the other terms and conditions herein: (a) Buyer must ensure that the Medical Device users are fully qualified in the use and operation of the Medical Device; (b) all clinical and medical treatment, diagnostic and cost reporting and billing decisions regarding the Medical Device are Buyer’s sole responsibility; and (c) Buyer represents and warrants that it is, and at all times will be, in full compliance with all applicable Regulatory Laws regulating healthcare, medical products and Medical Devices.
16. BUYER REPRESENTATIONS & WARRANTIES
Buyer represents and warrants that (a) Buyer will comply with all applicable national, state and local laws, orders, rules and regulations (including but not limited to any applicable Regulatory Laws, export control laws, the Foreign Corrupt Practices Act, anti-corruption and anti-bribery laws, and anti-kickback laws) with respect to the purchase, sale, marketing, distribution and use of the Products; (b) any Licensed Material (as defined herein) provided by Buyer to be applied to the Products shall not infringe or violate any patents, copyrights, trademarks, trade names, or other intellectual property rights of any third party; (c) Buyer will use all Products in accordance with the packaging labeling and instructions of the manufacturer; (d) if the Products are not already subject to Regulatory Laws, shall not market, sell, distribute or use the Products in a manner which would require approval of Regulatory Agencies; and (e) if the Products are already subject to Regulatory Laws, shall not market, sell, distribute or use the Products in a manner which would require additional approvals by Regulatory Agencies.
Buyer shall defend, indemnify and hold the Seller, and its officers, directors, employees and agents (hereafter collectively, including the Seller, the " Seller-Affiliated Entities "), harmless from and against any and all losses, damages, liabilities, claims, demands, lawsuits and expenses, including court costs and attorneys' fees (collectively, " Claims "), that such entities may incur arising out of or in any way resulting from, whether directly or indirectly: (a) Buyer’s sale, marketing, distribution or use of the Products; (b) any act or omission of Buyer, its affiliated companies, or the officers, directors, employees, agents, representatives, subcontractors or distributors of each; (c) any breach of an Order or these Standard Terms, or the representations and warranties of Buyer herein; (d) any storage or use of Products that is not in accordance with the packaging labeling and instructions of the manufacturer; (e) any specifications or requirements furnished by Buyer for the Product; (f) any negligent act, omission or intentional misconduct on the part of Buyer, its affiliated companies, or the officers, directors, employees, agents, representatives, subcontractors or distributors of each; or (g) any cleaning, sterilization of or modifications to the Product or any combination of the Product with any other products, materials or chemicals. Upon the commencement of any Claim to which this indemnification applies, Seller shall promptly notify Buyer, and Buyer shall assume and diligently conduct the entire defense thereof, including any appeals, at its own sole cost and expense, and shall pay and discharge any and all settlement amounts, judgments or decrees which may be rendered; provided, however, that Buyer shall not enter into any settlement or compromise of a Claim without Seller’s prior written consent, which consent shall not be unreasonably withheld. Without releasing any obligation, liability or undertaking of Buyer, Seller, insofar as its interests are affected, may at its sole election supersede Buyer in any such defense and thereafter assume and conduct the same according to its sole discretion in which event Buyer shall cooperate with Seller in such defense in such manner as Seller shall require.
18. SELLER'S INTELLECTUAL PROPERTY
Buyer shall not use, either directly or indirectly, in whole or in part, any character, design, symbol, logo, trademark, service mark, trade name, corporate name, or other mark, name, title, visual or audio representation, copyright, patent or other intellectual property rights that are owned or licensed by Seller (collectively, " Seller Materials ") except in the manner and to the extent that Seller may specifically authorize in writing prior to any such use. An Order does not convey any right, title, interest or license (either explicitly, by implication or estoppel) relative to the Seller Materials or the intellectual property rights of any manufacturer of Products. All Seller Materials and the intellectual property rights of any manufacturer of Products will remain the property of Seller or the manufacturer, as applicable.
During the course of Buyer’s dealings with Seller with respect to an Order or potential Order, Buyer may gain access to sensitive and/or proprietary or confidential proprietary information relating to the business of Seller, its parent, subsidiaries and affiliated companies, and/or their actual or potential clients, customers, suppliers, distributors or vendors, including, but not limited to the identity of such entities and the pricing and availability of Seller’s products (collectively, " Confidential Information "). Buyer agrees that neither it nor any of its representatives will, at any time, directly or indirectly: (a) make use of any Confidential Information except for the execution and fulfillment of an Order with Seller; or (b) disclose any Confidential Information to any other person or entity other than as authorized by Seller in writing. More specifically, but without limitation, Buyer agrees that neither Buyer nor its representatives will, either directly or indirectly, attempt to contact, contact, correspond or communicate with, solicit, or enter into any contract or agreement with, any client, customer, supplier, distributor or vendor, or potential client, customer, supplier, distributor or vendor, of Seller with respect to the products that are referred to in the Order without the prior written authorization of Seller. If Buyer has not done so already, and if requested by Seller, Buyer agrees to sign Seller’s standard mutual non-disclosure agreement (" Seller NDA ") and return such signed document to Seller within the time requested by Seller. Buyer agree to disclose Confidential Information to its employees and representatives on a need-to-know basis only. The obligations of this Section shall remain in effect until rescinded in writing by Seller.
Buyer shall have no right, either voluntarily or by operation of law, to assign, sublicense, subcontract, transfer or otherwise dispose of all or any part of its interests, obligations or rights under any Order without the prior written consent of Seller. Any such attempted act by Buyer without such consent shall be void and shall constitute a material default and breach of any outstanding Orders. Seller shall have the right, either voluntarily or by operation of law, to assign, sublicense, subcontract, transfer or otherwise dispose of all or any part of its interests, obligations or rights under an Order (including the right to receive payment), without the prior written consent of Buyer. Each Order is entered into solely by and between, and may be enforced only by, the Buyer and Seller (and the Seller’s permitted assigns) and, except to the extent expressly provided for herein, is not intended to confer on any other person any rights, remedies, obligations or liabilities under or by reason of the Order.
21. GOVERNING LAW
It is agreed that the substantive and procedural laws of the State of Illinois (except for its conflict of laws provisions) shall apply in all respects to the interpretation and enforcement of each Order. Buyer irrevocably consents to the jurisdiction of the courts of the State of Illinois, with venue in Cook County or, in the alternative and to the extent that a basis for federal jurisdiction exists, in the United States District Court for the Northern District of Illinois. Buyer waives its objection to such forums, whether on the basis of inconvenience, lack of personal jurisdiction or otherwise. Buyer agrees that any action or lawsuit resulting from any breach or alleged breach of an Order by Seller, or with respect to any Products, must be commenced within one year after the cause of action has accrued.
22. ENFORCEMENT OF ORDER OR THESE STANDARD TERMS
In the event of any dispute between the parties concerning the terms and provisions of an Order or these Standard Terms, or if it becomes necessary for Seller to undertake collection efforts against Buyer, then the prevailing party in any legal action shall be entitled to collect from the other party all third-party fees, costs and expenses incurred in such dispute, including without limitation, the recovery of reasonable fees and expenses of third-party attorneys, accountants and experts, and all fees, costs and expenses of any appeals. Buyer will be liable to Seller for all costs of collection incurred by Seller (including but not limited to collection agency fees and costs as well as reasonable attorneys’ fees and expenses), regardless of whether a lawsuit is commenced.
All representations and warranties, and all indemnification and confidentiality obligations herein, shall survive the expiration or termination of any Order. Nothing in any Order shall be construed so as to constitute Seller and Buyer as partners, joint venturers, or agent and principal, and neither party shall have any authority to obligate or bind the other party. No release, discharge or waiver of any provision hereof shall be enforceable against or binding upon either party hereto unless in writing and signed by an officer of both Buyer and Seller. The failure to insist upon strict performance of any of the agreements, terms, covenants or conditions hereof shall not be deemed a waiver of any rights or remedies that either party hereto may have or a waiver of any subsequent breach or default in any of such agreements, terms, covenants and conditions. Further, no waiver by either party of any breach or default by the other party shall constitute a waiver of any other breach or default of the same or any other provision of these Standard Terms or an Order. If any of the provisions of these Standard Terms or an Order contravene or are invalid under the law, then it is agreed that such contravention or invalidity will not invalidate the whole Standard Terms or Order, but the Standard Terms or Order, as applicable, will be construed as if not containing the particular provisions or provisions held to be invalid, and the rights and obligations of the parties will be construed and enforced accordingly.
LICENSE AGREEMENT (If applicable)
- If, and only if, under the terms of an Order Seller will be applying any character, design, symbol, logo, trademark, service mark, trade name, corporate name, or other mark, name, title, visual or audio representation, copyright, patent or other intellectual property rights, information or materials that are owned or licensed by Buyer (collectively, "Buyer Materials") to the Product, then Buyer hereby grants Seller a limited license to reproduce the Buyer Materials specifically identified on the Order (the “Licensed Material”), solely for application to the Products specified in the Order. Seller shall not, without Buyer’s prior written consent (which consent may be withheld at Buyer’s sole discretion), sell, trade or otherwise dispose of Products containing the Licensed Material to any third party.
- As a condition to the grant of this Limited License, Seller agrees to permanently affix proprietary notices (e.g. copyright, trademark, etc.) in a form supplied by Buyer to each reproduction of the Licensed Material.
- Any limited license granted to Seller herein is personal and Seller may not assign, sub-license or transfer these rights to anyone without Buyer’s written consent, which consent may be withheld in Buyer’s sole discretion.
- Except for any license granted herein, an Order does not convey any right, title, or interest relative to the Buyer Materials and all Buyer Materials will remain the property of Buyer.
Effective as of September 23, 2020