Terms and Conditions
Application of Terms. These terms and conditions apply to any sale or delivery by Haag-Streit USA, Inc. (“Haag-Streit”) of Surgical products and services (the “Products”). Any additional or conflicting term from those in these terms and conditions in an offer or acceptance by Buyer is expressly objected to by Haag-Streit and shall not be deemed accepted by Haag-Streit or to be part of any contract with Haag-Streit unless Haag-Streit, in a duly executed writing, specifically accepts such additional or conflicting term.
Acceptance; Agreement to Buy. Any order for the Products (“Order”) is subject to acceptance by Haag-Streit. Orders shall constitute a firm and binding agreement of Buyer to buy the Products in the quantities and at the prices listed in the Order. An Order may only be cancelled by written agreement of Buyer and Haag-Streit, and Haag-Streit reserves the right to charge a cancellation fee equal to 20% of the Order price. Prices listed in the Order are valid only for the period specified in the quotation provided to Buyer by Haag-Streit (the “Quote”). If no period is specified, the prices are valid only for 30 days. Except as set forth herein, Haag-Streit reserves the right to make changes at any time without notice in prices, design, models or specifications, and to discontinue Products.
Pricing. Prices for Haag-Streit equipment include standard packaging, but DO NOT include installation unless specified in the Order. Any discounts applicable to Orders made by eligible teaching institutions must be set forth in writing by Haag-Streit on the invoice. Haag-Streit is required to collect taxes unless a tax exempt certificate is provided by the Buyer. Buyer is responsible for payment of all taxes associated with the purchase of the Products.
Trade-in Equipment. Trade-in equipment may be accepted by Haag-Streit in its sole discretion, subject to Haag-Streit’s inspection and final acceptance. Trade-in equipment must be provided to Haag-Streit no later than 60 days after installation of Products. Buyer agrees to allow Haag-Streit to adjust pricing on the Order if Trade-in equipment is not provided, is not complete, or is not acceptable by Haag-Streit for any reason. Trade-in equipment must include all components including hardware and software as detailed on the Quote.
Assignment. Buyer shall not assign the Order or any interest therein without the prior written consent of Haag-Streit. Any such actual or attempted assignment without Haag-Streit’s prior written consent shall be invalid and ineffective and shall entitle Haag-Streit to cancel the Order upon notice to Buyer.
Payment. Payment is due in full in U.S. Dollars within twenty (20) days from the date of invoice, at: 3535 Kings Mills Road, Mason, OH 45040, unless otherwise specified in the Order or unless otherwise specified in the Quote or in writing by Haag-Streit. Late payments are subject to interest at a rate of 11/2% per month or the highest rate permitted by applicable law. As collateral security for the payment of the purchase price of the Products and performance in full of all the obligations of Buyer, Buyer hereby grants to Haag-Streit a lien on and security interest in and to all of the right, title and interest of Buyer in the Products, wherever located, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing, whether cash or non-cash (collectively, the “Collateral”). The security interest granted under this provision constitutes a purchase money security interest under the Ohio Uniform Commercial Code (the “UCC”), and will entitle Haag-Streit to all rights of a secured party under the laws of the State of Ohio. Buyer irrevocably authorizes Haag-Streit at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings), amendments thereto and renewals thereof that contain the information required by Article 9 of the UCC in each applicable jurisdiction for the filing of any financing statement, amendment or continuation statement relating to the Collateral. Haag-Streit may further evidence and perfect such security interest by providing prior written notice of this purchase money security interest to any creditors of Buyer or third-parties having or asserting a prior existing security interest in the Collateral. In addition to any other legal remedies, Buyer agrees to defend, indemnify, and hold harmless Haag-Streit against all damages, losses and expenses, including, but not limited to, attorneys’ fees and expenses, arising out of Buyer’s breach of any provision in these Terms and Conditions including, but not limited to, non-payment. In the event of bankruptcy filing by Buyer, indemnification by Buyer to Haag-Streit specifically includes all expenses incurred by Haag-Streit in connection with that proceeding.
Delivery/Risk of Loss. Unless otherwise stated in the Order or otherwise agreed to in writing, all goods are delivered F.O.B. Mason, Ohio. Risk of loss and title (excepting title to software) shall pass to Buyer upon Haag-Streit’s delivery to the carrier. Unless otherwise specified, all orders are shipped, freight prepaid, via the most economical surface method, with shipping charges added to the invoice. Risk of loss passes to the Buyer upon delivery of the Products to the carrier. Transportation shall be at Buyer’s sole risk and expense, and any claim for loss or damage in transit shall be against the carrier only. Insurance may be procured by Buyer at its discretion. Any shipping dates are estimated. Failure to deliver within the time estimated shall not be a breach of contract on Haag-Streit’s part and in no event will Haag-Streit be responsible for, or Buyer be entitled to, any direct or indirect, incidental, exemplary, or consequential damages, including, but not limited to, claims for labor or loss of profits arising out of or relating to any delay in delivery. If failure to deliver or perform by Haag-Streit is due to an act of God, war, riot, embargo, act of civil or military authority, fire, flood, quarantine, storm, strike, labor dispute, delay in transport or supply, shortage of fuel, labor or material, or other cause beyond the reasonable control of Haag-Streit, Haag-Streit may, at its option, extend the delivery time or cancel the Order, in whole or in part.
Software License. Any software listed in the Order is licensed, not sold, to Buyer. Any software listed in the Order proprietary to a third party supplier is provided to Buyer subject to the terms and conditions established by the third party supplier. Except to the extent covered under a separate software license identified in the Order or included with the Products, the following license terms apply to any software listed in the Order that is proprietary to Haag-Streit.
(a) Haag-Streit grants Buyer a non-exclusive license to use any Haag-Streit software product listed in the Order on the number of individual workstations or view-stations identified in the “Quantity” column on the Order. If Buyer intends to install Haag-Streit software on a LAN or other system such that it may be accessed by multiple workstations or view-stations, Buyer must have acquired licenses in a quantity equal to the number of workstations or view-stations connected to the LAN or other system. Buyer shall not make any copies of the software, other than back-up or archival copies. Buyer shall not modify, alter, adapt, merge, decompile, disassemble or reverse engineer the software.
(b) No transfer of the license to use Haag-Streit software is permitted without the written consent of Haag-Streit. In no event is Buyer permitted to grant any sublicense to use Haag-Streit software to a third party or otherwise make Haag-Streit software or the use of Haag-Streit software available to any other person without the written consent of Haag-Streit.
(c) All licenses to use Haag-Streit software are perpetual, except that Haag-Streit reserves the right to terminate any license if Buyer breaches the license terms described in this Order.
(d) Haag-Streit provides limited warranty support for its software as described below. Haag-Streit assumes no obligation to provide any updates or upgrades to its software.
Installation and Training. If installation and/or training services are listed in the Order, these services will be scheduled at the mutual convenience of Buyer and Haag-Streit as soon as possible after Buyer has received the Products. Installation services are the services that in Haag-Streit’s experience are sufficient to install the Haag-Streit products and software in an environment complying with the requirements described below under “Limited Warranty.”
Limited Warranty. Haag-Streit warrants to the Buyer that the Products and Haag-Streit proprietary software listed in the Order will be free from material defects in materials and workmanship for a twelve month period starting on the date of Buyer’s receipt of the Products and/or software (the “limited warranty period”). During the limited warranty period, Haag-Streit will, at its discretion, either at an authorized Service Center or on site, repair or replace the necessary components, parts or subassemblies necessary to correct material defects in materials and workmanship in the Products and/or software or, if for any reason Haag-Streit determines that it is unable to correct any such defect, accept the return of the Products and/or software covered by this Order and refund the purchase price paid by Buyer. This limited warranty does not apply to damages caused by the following: accidents, acts of God, misuse, alterations, repairs or modifications not performed by an authorized Haag-Streit representative, the failure to maintain a suitable installation environment (including electrical power, humidity control, temperature control, space, and computer platform and capacity), relocation, the use of supplies, materials or third party software not meeting Haag-Streit specifications or the use of the products and/or Haag-Streit proprietary software for purposes other than those for which they were specifically designed. In addition, this limited warranty does not apply to any software product that is proprietary to a third party supplier. (The limited warranty with respect to any such software product, if any, is the limited warranty provided by the third party provider of that product.) This limited warranty does not cover consumable parts and supplies (i.e., paper, light bulbs, printer ribbons, ink cartridges, storage media, fuses, etc.) used with the Products and software. THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF, AND HAAG-STREIT HEREBY DISCLAIMS AND THERE SHALL BE EXCLUDED FROM THE RELATIONSHIP BETWEEN BUYER AND HAAG-STREIT, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. This limited warranty does not constitute a warranty that procedures performed using the Products and software covered by the Order will be subject to reimbursement by any insurance carrier. Buyer is responsible for the protection and integrity of all patient data and Haag-Streit will not be liable for any loss or compromise of patient data.
If Buyer needs limited warranty service, Haag-Streit will assist Buyer with the necessary arrangements to have the equipment shipped to an authorized service center. Shipping will be paid for by Haag-Streit. For limited warranty service or technical support, call Haag-Streit at (888) 848-8923, 8:00 am to 5:00 EST. Haag-Streit provides post-limited warranty period service of its instruments pursuant to a separate “Instrument Service Agreement.”
Returned Goods. No goods or equipment may be returned to Haag-Streit without prior written authorization by Haag-Streit. Upon receipt of a “Return Goods Authorization” form from Haag-Streit, returns must be shipped and prepaid to Haag-Streit at the address in the Order and a 20% restocking fee may be applied. Merchandise held longer than thirty (30) days from the installation date, special order items and discontinued products may not be returned. Returned items must be unused and in salable condition. If items must be refurbished or repackaged, Haag-Streit reserves the right to either reject acceptance of the return or accept the return and offset the costs of refurbishing or repackaging from the credit or refund to be given to Buyer for the returned goods or equipment. Special order items and discontinued products may not be returned.
Exclusive Remedy. Buyer’s remedies for the failure of any Products and software listed in the Order are exclusively set forth below in the “Limited Warranty” section. Such remedies shall not be deemed to have failed of their essential purpose so long as Haag-Streit is willing and able to repair or replace the Products and/or software or refund the purchase price paid by Buyer on a reasonably prompt basis. HAAG-STREIT WILL NOT UNDER ANY CIRCUMSTANCES BE RESPONSIBLE FOR ANY OTHER DAMAGE, INCLUDING ANY DIRECT OR CONSEQUENTIAL DAMAGE OR LOSS, ARISING FROM CONTRACT OR OTHERWISE, INCLUDING WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, INJURY TO PERSONS, DAMAGE TO TANGIBLE PROPERTY OR DAMAGES RESULTING FROM ANY INABILITY TO USE ANY HAAG-STREIT PRODUCT OR SOFTWARE.
Integration. The Order embodies the entire agreement and understanding between the parties with respect to the Products, software and services covered by the Order, and supersedes all prior agreements and understandings relating to the subject matter hereof, whether oral or written. The Product provided to Buyer is in its complete and finished form. No future changes, additions or enhancements can be provided without a written agreement signed by an authorized representative of Haag-Streit. These terms and conditions will not be amended, modified or rescinded except by written agreement signed by an authorized representative of each party expressly referring hereto. If any provision of these terms and conditions shall be held by a court of competent jurisdiction to be contrary to any law, the remaining provisions shall remain in full force and effect with such contrary or unenforceable provision limited or excluded to the minimum extent required under applicable law.
Governing Law/Jurisdiction/Jury Waiver. These terms and conditions and the Order shall be governed by, and construed in accordance with, the laws of the State of Ohio, without application of the conflict of law principles thereof. Any claim or dispute arising from the Order or these terms and conditions may only be brought in a court with jurisdiction over claims arising in Warren County, Ohio, and Buyer expressly waives any objection to such venue.
BUYER VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER BASED ON CONTRACT, TORT OR OTHERWISE, BETWEEN OR AMONG BUYER AND HAAG-STREIT, ARISING OUT OF OR IN ANY WAY RELATED TO ORDER, OR ANY PRODUCTS, SERVICES OR SOFTWARE LISTED IN THE ORDER.
Non-Waiver. Any failure by Haag-Streit to exercise any of its rights shall not constitute or be deemed a waiver or forfeiture of such rights or any other rights.
Limitations. Any cause of action arising from the arrangement between Haag-Streit and Buyer or any breach of Haag-Streit’s obligations to Buyer must be commenced within one year after the event giving rise to the cause of action has occurred or it shall be deemed irrevocably waived and time-barred.