Terms and Conditions of Sale
Unless otherwise expressly provided with respect to a particular sale, all quotations and sales are made in accordance with and subject to the following terms and conditions.
1. Prices: All prices published by us or quoted by our representatives may be changed at any time without notice. Unless otherwise stated, written quotations expire automatically thirty (30) days from the date issued. All prices are subject to adjustment on account of specifications, quantities, shipment arrangements or other terms and conditions, which are not part of the original price quotation. Prices are exclusive of all excise, sales, use and other taxes imposed by any federal, state, municipal or other government authority, all of which taxes shall be paid by the purchaser. The purchaser is responsible for obtaining and providing to us any certificate of exemption or similar document required to exempt any sale from sales, use, or similar tax liability. All prices shall be as specified by us, or, if no price has been specified, shall be our price in effect at the time of delivery.
2.a. Terms of Payment: Unless otherwise expressly stated in writing, terms are pre-payment by credit card. We reserve the right at any time to require full or partial payment in advance, or to revoke any credit previously extended, if, in our judgment, the purchaser’s financial condition does not warrant proceeding on the terms specified. Overdue payments shall be subject to financial charges computed at a periodic rate (to the extent permitted by law) of 1 1/2% per month (18% per year). Amounts owed by the purchaser with respect to which there is no dispute shall be paid without setoff for any amounts which the purchaser may claim are owed by us and regardless of any other controversies which may exist.
2.b. Zimmer MedizinSystems’s Remedies if Purchaser Fails to Pay: In addition to finance charges stated above, in the event the purchaser fails to pay all amounts when due, then Zimmer MedizinSystems may, with or without notice, take any and all actions available to collect said amounts, including but not limited to enforcement of its security interest, referral to outside collection agencies and/or commencement of legal action. Zimmer MedizinSystems’s rights shall be cumulative, and it shall not be required to have recourse to any collateral before taking any other collection actions. The purchaser agrees to pay all costs of collection, including but not limited to reasonable attorney fees, which may be incurred by Zimmer MedizinSystems, or any assignee.
3. Delivery: Unless otherwise specified, all sales are F.O.B. shipping point, at the place of manufacture or warehouse location which is the address set forth herein, exclusive of insurance cost. Without in any way limiting the generality of paragraph 10, we shall not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond our control, including, without limitation, acts of nature, unavailability of supplies or sources of energy, riots, wars, fires, floods, epidemics, lockouts, strikes and slowdowns, delays in delivery by our suppliers, or acts or omissions of the purchaser. In the event of delay due to any such cause, time for delivery shall be extended for a period equal to the duration of the delay and the purchaser shall not be entitled to refuse delivery or otherwise be relieved of any obligations as a result of the delay. If, as a result any such cause, any scheduled delivery is delayed for a period in excess of thirty (30) days we may, at our option, by written notice to the purchaser, cancel that and all future deliveries without further liability or obligation of any kind. Products on which delivery is delayed due to any cause within the purchaser’s control may be placed in storage by us at the purchaser’s risk and for its account. The purchaser shall be liable for all costs and expenses incurred by us in holding or storing products for the purchaser or at the purchaser’s request.
4. Shipment: Unless specific instructions to the contrary are supplied by the purchaser, methods and routes of shipment will be selected by us but we will not assume any liability in connection with shipment nor constitute any carrier as our agent. All shipments will be insured at the purchaser’s expense and made at the purchaser’s risk, and the purchaser shall be responsible for making all claims with carriers, insurers, warehousemen and others for miss-delivery, non-delivery, loss, damage or delay.
5. Title and Risk of Loss: Subject to paragraph 6 and to our right to stop delivery of products in transit, title to and risk of loss for products shall pass to the purchaser upon the earlier of delivery to the purchaser or to a carrier for shipment to the purchaser.
6. Security Interest: We reserve and the purchaser grants to us a security interest in all products sold and all proceeds to secure the full payment and performance by the purchaser of its liabilities and obligations to us. The purchaser acknowledges that this document or copies of this document may be filed with the appropriate authorities as a financing statement and agrees to execute and deliver such other documents as we may request in order to perfect our security interest.
7. Cancellation Charges and Return Goods Policy: In the event purchaser (i) cancels any order or portion thereof, or (ii) fails to meet any obligation hereunder, causing cancellation or rescheduling of any order or portion thereof, purchaser agrees to pay us cancellation charges, said charges having been agreed upon, not as a penalty, but as a result of the difficulty of computing actual damages. Such charges are as follows:
Cancellation notice received prior to shipment ........................$250.00
The purchaser may not return any product without prior written approval from Zimmer MedizinSystems. All returned goods will incur a 25% restocking charge unless otherwise noted in writing by Zimmer MedizinSystems.
8. Installation: Installation of each system is not included in the purchase price.
9. Specifications: All products are subject to our standard tolerances for specification. We reserve the right to make substitutions and modifications in the specifications of any products provided that such substitutions or modifications do not materially affect the performance of the products of the purposes for which they can be used.
10. Claims: All claims for non-conforming or defective products must be made in writing within 10 days after delivery to the purchaser, and any claims not made within that period shall be deemed waived and released. Our sole responsibility with respect to such claims shall be, at our option, to repair or replace any product or component which we determine to be defective. IN NO EVENT SHALL WE BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES DUE TO ANY CAUSE WHATSOEVER. No suit or action shall be brought against us more than one year after the related cause of action has occurred.
THE FOREGOING CONSTITUTES OUR SOLE LIABILITY AND THE PURCHASER’S SOLE REMEDY WITH RESPECT TO PRODUCTS SOLD BY US. EXCEPT AS PROVIDED HEREIN, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
11. NEW SYSTEM WARRANTY: Zimmer MedizinSystems warrants to the original purchaser that the new hardware system, excluding instruments, accessories, and consumable products, will be free from defects in material and/or workmanship for 2 (two) years from the date of installation ( 1 (one) year from date of installation for Cryo Mini). If Zimmer MedizinSystems receives notice of defects during the warranty period, Zimmer MedizinSystems will, at its option, either repair or replace the hardware components that prove to be defective. The customer must notify Zimmer MedizinSystems of any defect within seven (7) business days after the defect first comes to the customer’s attention. Any replacement products shall be at Zimmer MedizinSystems’s option be new or remanufactured products, and are warranted for the remainder of the original warranty or thirty (30) days, whichever is longer. This warranty is not transferable and is subject to limitations.
COVERAGE: The warranty covers any defects of material and workmanship but not abuse, damage by force, failure to perform routine maintenance, cosmetic damage or any of the accessories and external parts (hose, filter, glass top, support arm, focusing tip, condensation container and other external parts and accessories). Zimmer MedizinSystems will repair or replace the unit at their discretion during this warranty period. The warranty will cover the following: replacement unit or loaner unit, all repairs and labor by Zimmer MedizinSystems authorized service technicians, and all internal parts necessary to return the unit to manufacturer’s specifications. The warranty will also cover all shipping costs related to the repair. In the event the defective unit is replaced by Zimmer MedizinSystems, the warranty coverage period defaults back to the original date the new Zimmer MedizinSystems unit was purchased and is not extended due to replacement of defective unit. Please note that preventative maintenance and accessories, which include the treatment hose, power cable, condensation filter, container, wheel covers, treatment arm and its accessories, are not covered under warranty. Zimmer MedizinSystems reserves the right to determine whether to repair or replace the Zimmer MedizinSystems unit. A RMA must be provided by Zimmer MedizinSystems before any unit is to be replaced or serviced internally.
EXPECTATION: In the event of a device failure, Zimmer MedizinSystems will make its best effort to provide the customer with a replacement unit within 48 business hours, excluding weekends and holidays. Service issues must be reported to Zimmer MedizinSystems before 11:30am PST in order to arrange transport if defective Zimmer MedizinSystems device is to be replaced. Please be aware the replacement unit will be a used unit and may or may not have minor cosmetic scratches on external housing, which will not affect performance of the replacement unit. Zimmer MedizinSystems will not replace a replacement unit due to minor cosmetic scratches. Zimmer MedizinSystems reserves the right to determine whether to repair or replace the Zimmer MedizinSystems unit. A RMA must be provided by Zimmer MedizinSystems before any unit is to be replaced or serviced internally.
CUSTOMER SERVICE: Contact Zimmer MedizinSystems at (800) 327-3576 to report any service issues with your Zimmer MedizinSystems device. Please have your device's serial number when calling in order to expedite the process.
NEW APPLICATOR WARRANTY: Applicator lifetime is a function of usage patterns and handling. The applicator is warranted from defects in materials and workmanship for two million shots from date of shipment. Warranty coverage is subject to evaluation by Zimmer MedizinSystems. The applicator warranty does not cover misuse and abuse. If Zimmer MedizinSystems receives notice of defects during the warranty period, Zimmer MedizinSystems will, at its option, either repair or replace the hardware components that prove to be defective. The customer must notify Zimmer MedizinSystems of any defect within seven (7) business days after the defect first comes to the customer’s attention. Any replacement products shall be at Zimmer MedizinSystems’s option be new or remanufactured products, and are warranted for the remainder of the original warranty or thirty (30) days, whichever is longer. This warranty is not transferable and is subject to limitations. Under no circumstances shall Zimmer MedizinSystems be liable for any special, incidental, or consequential damages based upon breach of warranty, breach of contract, negligence, strict liability, or any other legal theory. Such uncovered damages include, but are not limited to, loss of profits, loss of revenue, loss of use of the hardware system or any associated equipment, cost of capital, cost of substitute or replacement equipment, facilities or services, down time, purchaser’s time, the claims of third parties, including customers, and damages to any real or personal property.
THE WARRANTY STATED ABOVE IS THE ONLY WARRANTY APPLICABLE TO THIS PRODUCT. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED (INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), ARE HEREBY DISCLAIMED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ZIMMER MEDIZINSYSTEMS CORPORATION, ITS AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ZIMMER MEDIZINSYSTEMS SHALL BE RELIEVED FROM ANY OBLIGATION UNDER THE FOREGOING WARRANTY IN THE EVENT OF, AND SHALL NOT BE LIABLE FOR ANY BREACH THEREOF ARISING OUT OF OR RELATING TO ANY SERVICE TO OR MODIFICATION OR ALTERATION OF THE HARDWARE SYSTEM RENDERED OR PERFORMED BY ANY PARTY OTHER THAN ZIMMER MEDIZINSYSTEMS OR ITS AUTHORIZED SERVICE REPRESENTATIVES.
12. Patents: We hold the purchaser harmless from all claims, liabilities and damages, and defend all actions, based on a claim that this product (when used for an application for which it was marketed and sold), infringes a United States patent, provided that the purchaser shall have promptly advised us in writing of any such claim, action or liability and shall cooperate fully with us in its defense or settlement. We shall have control of the defense of any such action and of all negotiations for its settlement or compromise. This indemnity shall not apply to claims arising in respect of the use or sale of products manufactured in accordance with any designs or specifications provided by the purchaser. The purchaser shall indemnify and hold us harmless from any and all claims, liabilities, damages or expenses resulting from infringements or alleged infringements of United States or foreign patents, copyrights, trademarks or other proprietary rights arising from compliance by us with any designs or specifications provided by the purchaser. No sales of any product shall be construed as granting to the purchaser any license or other right in or to any patent, copyright, trademark or other proprietary right applicable to the product.
13. Assignment: The purchaser shall not delegate any duties nor assign any rights or claims under this document without our prior written consent, and any such attempted delegation or assignment shall be void.
14. Compliance with Laws: The purchaser shall carry out the transactions contemplated by the sale and shall otherwise deal with the products sold in conformity with all applicable laws, rules, and regulations of all governmental authorities, including, without limitation, the Export Administration Act, and shall obtain all permits and licenses required in connection with the purchase, installation, sale, shipment or use of any of the products.
15. Governing Law, Jurisdiction and Venue: Any contract regarding a particular sale shall be governed by and interpreted, construed and enforced in accordance with the laws of the State of California, without reference to its’ conflict of law provisions.
b. If legal action is commenced to enforce any contract regarding a particular sale, then the purchaser consents to personal jurisdiction in the State of California, and further agrees to bring any such action in, or (at Zimmer MedizinSystems’s option) consents to have any such action brought in the courts of the State of California.
16. Additional or Inconsistent Terms: Terms and conditions set forth in any document provided by the purchaser which differ from, conflict with or are not included in the terms and conditions set forth in this document shall not become a part of any agreement between us and the purchaser unless such terms and conditions are specifically accepted by us in writing. To the extent that this document may constitute an acceptance, such acceptance is expressly conditioned on the purchaser’s assent to any additional or inconsistent terms and conditions set forth in this document.