Terms & Conditions
Acceptance and Restocking Fee
This Order becomes a binding contract, subject to the terms and conditions hereof, when accepted by an authorized representative of Jaken Medical Inc. (JM Inc.) and/or commencement of performance thereon by JM, Inc. No change, modification, nor revision of this agreement shall be valid unless in writing and signed by an authorized agent of JM, Inc. In case of any conflicts between the terms on the face of this Order and the terms and conditions set forth below, the terms on the face of the Order shall control. All items returned or items cancelled will be subject to a 25% restocking fee.
Identification-Risk of Loss
Identification of the equipment under California Commercial Code Section 2051 shall occur at the moment this Order is signed by the parties. Risk of loss of the equipment shall pass to Buyer on identification. All Freight Damage Claims must be made at point of delivery and itemized by freight carrier.
Disclaimer of Express Warranties
Seller warrants that the equipment is as described in this Order, but no other express warranty is made with respect to the equipment.
Disclaimer of Warranties
There are no warranties that extend beyond the description on the face of this Order. Seller disclaims any warranty, express or implied that the equipment is merchantable or fit for any particular purpose.
Assignment of Warranty Rights
Seller agrees to assign Buyer, at Buyer’s written request, all rights Seller may have against manufacturers or distributors for breach of warranties relating to the equipment. Seller agrees to execute any documents of assignment that Buyer may request.
Warranty of Title
Seller warrants that it has the right to transfer a good and clean title to the equipment; that the equipment now is and on deliver will be free from all security interests and other liens and encumbrances; that Buyer will have a peaceful possession and quiet enjoyment of the equipment.
Trade Usage Warranties Excluded
Seller disclaims all warranties of the equipment (including warranties of merchantability) arising from course of dealing or usage of any trade. Buyer acknowledges that (i) there are no warranties implied by custom or usage in the trade of either Buyer or Seller that have become a part of the basis of the bargain; (ii) as is customary in the trades of Buyer and Seller to give no warranties in sales of equipment; and (iii) Seller’s prior dealings with Seller do not imply that Seller warrants the equipment in any way.
Seller Warranty Against Infringement Excluded
Seller makes no warranty that the equipment is or will be delivered free of the claims of any person by way of patent, copyright or trademark infringement or the like. Buyer agrees to indemnify and hold harmless Seller from any claims made against Seller for patent, copyright or trademark infringement or the like, related to the equipment sold to Buyer, including indemnification or reimbursement of attorney’s fees and costs that Seller may in cur from such claims.
Statements are Opinions, Not Warranties
Buyer and Seller agree that any statements and representations made by Seller were only Sellers opinion, were not a part of the basis of the bargain, and are not warranted to be accurate. Buyer and Seller agree that if any statement made by Seller in this Order or otherwise are construed as an affirmative or promise; it shall nevertheless not constitute a warranty that the goods will conform to the affirmation or promise.
Agent’s Authority Negated
No agent, employee, or representative of Seller has authority to bind Seller to any affirmation, representation, promise, or warranty concerning the equipment. Unless an affirmation, representation, promise, or warranty is written out in this document and signed by an officer of JM, Inc., it is not enforceable by Buyer.
This document constitutes the entire agreement of all the terms, conditions, representation, covenants and agreements of the Order between Buyer and Seller. This Order shall not be varied, supplemented, qualified or interpreted by any prior course of dealing between the parties or by any usage of trade.
Buyer and Seller agree that the sale and exclusive remedies for breach of any warrant concerning the equipment shall be repair or replacement of defective parts or, at Seller’s option, refund of the purchase price. Seller shall not be held liable for injury to any person caused by the equipment. Seller shall not be held liable for injury to property other than the equipment itself.
Assignment of Delegation
No right or interest in this Order may be assigned by either Buyer or Seller without the written permission of the other party. Any attempted assignment or delegation shall be wholly void and totally ineffective for all purposes unless made in conformity with this paragraph.
Should any litigation be commenced between the Buyer and Seller, or their representatives, concerning any provision of this contract or rights and duties of any provision of this contract or the rights and duties of any person or entity in relation thereto, including actions to collect for any outstanding balance owed by Buyer, the party prevailing in such litigation, whether by out-of-court settlement or final judgment, shall in addition to such other relief as may be granted or ordered, be entitled to recover reasonable attorney’s fees, costs and expenses incurred in such litigation and any appeals in connection therewith. In addition, any judgment or order entered in any final judgment, shall contain a provision providing for the recovery of all costs and expenses of suit including, without limitation, actual attorney’s fees, costs and expenses incurred in connection with (i) enforcing, perfecting, and executing such judgment; (ii) post-judgment motions; (iii) contempt proceedings; (iv) garnishment, levee and debtor and/or third party examinations; (v) discovery; and (vi) bankruptcy proceedings.
This Order has been entered into the State of California and the Order, including any rights, remedies, or obligations provided for there under, shall be construed and enforced in accordance with the laws of the State of California, without giving effect to the doctrine of conflict of laws. The parties agree that jurisdiction in any action or suit shall be commenced within the county where Seller maintains its primary place of business at the time the action or legal proceeding is commenced. Buyer waives any objection that he, she or it may have against Seller based upon lack of personal jurisdiction, venue or forum non convenience.
The captions heading the various sections of this Order are for convenience and shall not be considered to limit, expand, or define the contents of the respective sections.
If any term, representation, warranty, provision, covenant, or condition of this Agreement is held to be invalid, void or unenforceable, the remainder of this Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalided.
This Agreement shall be construed according to its fair meaning and without regard to whether it was prepared or drafted by one party or its attorney. The language used in this Agreement will be deemed to be the language chosen by the parties hereto to express their mutual intent. The parties agree that any ambiguity or uncertainty existing herein shall not be construed by one party to the detriment of the other, nor shall any rule of strict construction be applied against either party. In addition, as to disclaimers set forth herein, Buyer waives the benefit of any rule that disclaimers shall be construed against Seller, and Buyer agrees that the disclaimers in this Order shall be construed liberally in favor of Seller.
Payments not received by the due date shall be subject to a finance charge of 1.5% per month of the outstanding balance until paid in full.
Training and Installation
If Buyer requests Sellers installation and/or training regarding the equipment, Buyer shall pay Seller at the rate of $99.00 per hour for the provision of such services. Travel expenses, including mileage and parking, will be billed in addition.
- All parts are warranted for 90 days under normal use.
- All Labor is warranted for 30 days after original service call date.
- All service calls have a minimum Zone Charge.