MYERS DRUG STORE, INC./MYODERM MEDICAL SUPPLY TERMS AND CONDITIONS OF SALE
1. Acceptance of Orders. All quotes issued by Myers Drug Store, Inc. and/or Myoderm Medical Supply (collectively, the “Company”) shall be nonbinding invitations for offers by the Customer. The Company’s acceptance of any purchase order is expressly conditioned on the Customer’s assent to any terms and conditions contained herein that are different from or additional to those contained in the Customer’s writing. The Company hereby objects to any terms and conditions of the Customer that attempt to vary or supplement the Company’s terms and conditions contained herein. To the extent that this writing is construed as an offer, acceptance hereof is expressly limited to the terms and conditions contained herein. The Customer’s acceptance of goods from the Company shall manifest the Customer’s assent to the Company’s terms and conditions. The contract formed pursuant to the terms of this paragraph shall be referred to herein as the parties’ “Agreement.”
2. Payment Terms; Late Payments. Payment shall be net thirty (30) days from the date of invoice unless otherwise specified by the Company in writing. If payments are not made in accordance with these terms, a service charge will, without prejudice to the right of Company to immediate payment, be added to the account of the Customer in an amount equal to the lower of 1 ½ % per month or the highest legal rate on the unpaid balance. The Customer’s payment obligations are absolute, unconditional, and not subject to reduction, set-off, counterclaim, or delay. The Company reserves the right to demand full or partial payment in advance if the Company reasonably determines that the Customer’s ability to pay debts as they become due in the ordinary course of business has become materially impaired.
3. Delivery and Tender. Shipment terms will be EXW (Incoterms 2010), unless the Company agrees to other terms in writing. The Customer shall be responsible for all shipping costs, insurance costs, customs and import/export duties, value-added taxes, sales and use taxes, and/or other assessments on the delivery of goods. Unless definite shipping instructions accompany the order, the method of shipment and routing will be at the Company’s discretion. The Customer will accept title for goods and risk of loss at the time the product leaves the Company’s possession. The Customer shall bear the cost of any resulting loss, deterioration or damage of the goods as may occur after title has been transferred. Shipping dates, where stated, are approximate and not guaranteed.
4. Customer’s Acceptance of Goods. The Customer shall promptly inspect all goods purchased hereunder for damages, defects, and/or non-compliance with specifications. The Customer shall be deemed to unconditionally accept all products purchased hereunder and waive every claim from any cause, including without limitation claims under the limited warranties contained herein, unless the Customer provides notice of such claim in writing to the Company within 14 days of delivery. Product returns for reasons other than damage, defects, or non-compliance with specifications shall be solely at the Company’s discretion and subject to the Customer’s payment of a restocking fee.
5. Company’s Remedies in the Event of Default. Company shall have the right, at its option, to terminate this Agreement upon the occurrence of a Default by the Customer. A “Default” includes, but is not limited to, any one or more of the following events: (i) failure to make payment when due; (ii) a material breach or repudiation of a term or condition of this Agreement, including without limitation cancellation of any product order; (iii) filing of a petition for relief under any chapter of the United States bankruptcy laws; (iv) commencement of involuntary proceedings by the Customer’s creditors under the United States bankruptcy laws; (v) the dissolution of the Customer as a going concern; or (vi) a sale, transfer, or exchange of substantially all of the assets or equity of the Customer without the prior written consent of the Company. In the event of a Default, the Company shall be entitled to withhold shipments, in whole or part; to recall goods in transit and retake same; and to repossess all goods which may be stored by the Company for the Customer’s account; in each case without the necessity of instituting any proceedings. The Customer consents that all goods that the Company elects, in the exercise of its discretion, to recall, retake, or repossess shall become the Company’s absolute property, provided that the Customer is given full credit therefor. In the event that the Customer cancels a product order, the Company shall be entitled to receive, in addition to any other available remedies: (i) compensation for any reasonably unavoidable costs, expenses, and fees associated with the cancelled order, including without limitation product acquisition costs and restocking fees; and (ii) the Company’s anticipated profit on the order, which shall be considered a lost volume sale. Notwithstanding the foregoing, in the event that the Customer fails to perform any of its obligations hereunder, the Customer shall pay the Company all reasonably incurred litigation and collection costs, including, but not limited to, payment of the Company’s attorneys’ fees. The Company’s rights as otherwise set forth in this Agreement are cumulative and in addition to any other rights the Company may have at law or in equity.
6. Limited Warranty. The goods that are the subject of this Agreement have been manufactured and supplied to the Company by third parties. The Company warrants that it will pass marketable title to the goods sold hereunder, which will be of the type and quantity described in the Customer’s purchase order. THE COMPANY DISCLAIMS AND NEGATES ANY OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR ITS EMPLOYEES SHALL CREATE A WARRANTY OR MAKE ANY MODIFICATION OR ADDITION TO THIS WARRANTY.
7. Limitation of Customer’s Remedies. THE SOLE AND EXCLUSIVE REMEDY OF THE CUSTOMER FOR A BREACH OF THIS AGREEMENT OR OF ANY WARRANTY SHALL BE, AT THE COMPANY’S SOLE DISCRETION: (A) REPLACEMENT OF ANY NON-CONFORMING GOODS; OR (B) THE CONTRACT PRICE. IN NO EVENT SHALL COMPANY, ITS EMPLOYEES, AFFILIATES, AGENTS, ASSIGNS AND/OR SUCCESSORS BE LIABLE TO THE CUSTOMER, ITS PARENTS, SUBSIDIARIES, AFFILIATES, EMPLOYEES, AGENTS, ASSIGNS AND/OR SUCCESSORS, AND/OR TO ANY THIRD PARTY, FOR ANY AND ALL DAMAGES ARISING FROM AND/OR IN ANY WAY RELATED TO: (A) THE LATE DELIVERY OF GOODS; (B) THE UNAVAILABILITY OF GOODS; AND/OR (C) ANY CONDITION OR CHARACTERISTIC OF THE GOODS THAT ARE THE SUBJECT OF THIS AGREEMENT. THE COMPANY DISCLAIMS LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUES AND/OR LOST PROFITS, EVEN IF THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS.
8. Force Majeure. The Company shall not be liable for any non-delivery or delay in delivering any of the goods hereunder, if such non-delivery or delay shall be due to causes beyond the Company’s control, including, without limitation, one or more of the following causes: acts of God; fires; floods; strikes; lockouts; labor disputes; epidemics; accidents; delays in transportation; shortage of modes of transportation, labor, fuel or materials; war blockades; embargoes; foreign or domestic governmental regulations or requirements; restraining orders or decrees of any court or judge; or any other causes whatsoever, whether similar or dissimilar to those enumerated above.
9. Cost Increases and Currency Fluctuation. If, after the Company issues a quote or the Customer places a product order, (a) there is a material increase in the Company’s product acquisition cost, or (b) the compensation to be received by Company is materially reduced by changes in currency exchange rates, the Company may, at its election: (i) terminate this Agreement in whole or in part without liability for any delay in the delivery of, or failure to deliver, the goods sold hereunder; or (ii) increase the Customer’s invoice in proportion to the increase in Company’s product acquisition cost or the change in currency exchange rates.
10. Grant of Security Interest. The Customer hereby grants to the Company a security interest in the goods covered by this Agreement and the proceeds thereof as security for the Customer’s obligations hereunder. The Customer will, at the request of the Company, execute such financing statements pursuant to the Uniform Commercial Code as the Company may reasonably request in order to perfect its security interest in the goods.
11. Complete Agreement. The terms and conditions of this Agreement constitute the entire agreement between the parties hereto and supersede any and all prior or contemporaneous communications, representations or agreements, either verbal or written, between the parties with respect to the subject matter hereof.
12. Customer’s Representations and Warranties. The Customer represents and warrants that: (i) all applications, statements and credit or financial information submitted to the Company are true and correct and made to induce the Company to enter into this Agreement; and (ii) it is solvent at the time of entering into this Agreement.
13. Confidentiality. The Company and the Customer, and their respective employees and agents, will maintain the confidentiality of all proprietary, nonpublic information disclosed by the other and will not use or disclose such information except in connection with performing their contractual obligations and/or as required by law, court order, or other legal process. Confidential information shall not include any information (i) that is in the public domain (other than through a breach of a party’s confidentiality obligations); (ii) that a party can demonstrate by written records that it already possessed prior to disclosure; or (iii) that a party independently develops without reliance on the other party’s information.
14. Mutual Indemnification. The Company and the Buyer (each, an “Indemnitor”) shall indemnify, defend, and hold harmless the other party and its officers, directors, employees, agents, successors and assigns (each, an “Indemnitee”) against any third-party claims, lawsuits, losses, or other damages (including without limitation reasonable attorneys’ fees) (collectively, a “Loss”) relating in any manner to (i) the negligence or willful misconduct of the Indemnitor or its agents; (ii) any breach of the Indemnitor’s contractual obligations to an Indemnitee; and/or (iii) any violation of laws, statutes, and/or regulations applicable to the activities of the Indemnitor. In addition, the Customer shall indemnify, defend, and hold harmless the Company Indemnitees against any Loss related to the Customer’s or its agent’s use of goods or services provided by the Company.
15. Non-Waiver. The waiver of any breach of any covenant or condition of this Agreement shall not hinder or otherwise prevent the subsequent enforcement of said covenant or condition. No course of dealing shall be, or be deemed, a waiver of any term or condition hereof.
16. Assignability. These Terms and Conditions shall be binding upon and inure to the benefit of the parties’ respective successors and permitted assigns. As a matter of right, the Company may assign the obligations and benefits of the Company under this Agreement to any successor of the Company by reorganization, merger, consolidation, or liquidation, or to the purchaser of all or substantially all of its stock or assets. Upon said assignment, the obligations and benefits of the Company under this Agreement shall be binding and inure to the benefit of the assignees. Neither this Agreement nor any right, interest or obligation hereunder may be assigned, voluntarily transferred, delegated, or transferred by operation of law by the Customer without the prior written consent of Company.
17. Time of Claims. The Customer expressly waives the statute of limitations and agrees that any legal proceeding for any breach of the Agreement shall be waived unless filed within one (1) year after the accrual of such cause of action.
18. Choice of Law; Personal Jurisdiction and Choice of Venue; Invalidity; Modification. This Agreement shall be deemed made and accepted in and governed by the laws of the Commonwealth of Pennsylvania without regard to principles of conflicts of law. The parties hereby irrevocably consent in any suit, action or proceeding arising out of or relating to this Agreement or any party’s performance hereof to the jurisdiction of the Commonwealth of Pennsylvania and to the venue of either the Court of Common Pleas of Montgomery County or the United States District Court for the Eastern District of Pennsylvania. If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future law: (a) such provision will be fully severable; (b) this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof; and (c) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom. This Agreement cannot be amended, supplemented or waived, in whole or in part, except by a written instrument duly executed by the parties.