Terms and Conditions
PLEASE READ
PLEASE READ THESE TERMS OF USE (“TERMS OF USE”) CAREFULLY BEFORE USING THE WWW.MEDIVANCE.COM WEB SITE (THE “SITE”). BY ACCESSING THIS SITE, YOU SIGNIFY YOUR AGREEMENT TO ABIDE BY THESE TERMS OF USE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS OF USE, DO NOT ACCESS AND USE THE WEB SITE.
Thank you for your interest in Medivance Inc. (“Medivance”) products. The following provisions set forth the terms and conditions on which Medivance sells its products.
TERMS OF SALE
Purchase of any products sold by Medivance shall be subject to and expressly limited by the terms and conditions contained herein. No changes to, waiver of, or addition to any of these terms and conditions shall be effective unless agreed to in writing and signed by Medivance. Buyer acknowledges and agrees that these terms and conditions supersede the terms and conditions of any purchase order or other documentation used by Buyer and, except for delivery and billing, addresses, and quantities, prices and items ordered, any conflicting or additional terms are void and have no effect, but that Buyer may place orders by use of purchase orders and other documentation for its convenience purposes only. Notwithstanding the foregoing, Medivance reserves the right at any time to amend these terms and conditions, and Buyer shall be deemed to accept such amended terms and conditions by ordering products herein offered after the date of such amendment. Additional special terms and conditions of Medivance may be applicable with respect to certain products.
PRICES
All pricing quotes must be documented in writing and signed by Medivance to be valid. Medivance reserves the right to change the prices and specifications of its products at any time without notice.
TAX INFORMATION
Any tax, duty, custom or other fee of any nature imposed upon the products, their sale, transportation, delivery, use or consumption shall be paid by Buyer in addition to the price quoted or invoiced. If Medivance is required to prepay any such tax or fee, Buyer will reimburse Medivance. Buyer must provide Medivance with a resale/exemption certificate in order to avoid the withholding of applicable taxes. No refund or adjustment to previously withheld taxes will be made by Medivance sixty (60) days after the invoice date. Proof of certification should be mailed to: Medivance Inc., 321 South Taylor Ave., Suite 200, Louisville, CO 80027, or faxed to (720) 880-5409.
PAYMENT
Payment terms are net 30 days from date of invoice. Buyer's obligation to pay outstanding invoices and all other amounts is absolute and unconditional and is not subject to any abatement, reduction, set-off, defense, counterclaim, interruption, deferment or recoupment for any reason whatsoever. Balances remaining unpaid at due date are subject to a interest charge of 1.5% per month or the highest rate permitted by law, whichever is lower, until paid. Any discounts, rebates, administrative fees, credits, or other fees due or owed to Buyer will be applied against delinquent balances before payment or reimbursement is made.
Any disputed amounts should be reported immediately and remitted with the undisputed amount by the payment due date. If Medivance agrees with the billing dispute, Medivance will credit Buyer the amount of the agreed-upon billing dispute. All billing disputes must be made within three (3) months of the applicable invoice date, or will be deemed to be waived.
Medivance reserves the right in its sole discretion to require prepayment from any Buyer at any time and may refuse to sell and/or withhold further shipment until all overdue balances are made current. Buyer shall be liable for, and shall reimburse Medivance for all costs and expenses it may incur in connection with collection of any amounts owed to Medivance or enforcement of its rights, including without limitation, reasonable attorneys' fees and expenses, court costs, and cost of collection agencies.
RETURNED GOODS POLICY
Product returns are subject to the following conditions:
All returns are subject to the prior authorization of Medivance, in its discretion. Buyer must notify Customer Support at (877) 267-2314, Ext. 2 to obtain a Returned Goods Authorization "RGA" number, giving them the lot numbers, quantities and catalog numbers along with a specific reason for return. Customer Support will either authorize or deny the request for return. Only items appearing with an approved RGA number are acceptable for return. Unauthorized returns will be destroyed and no credit issued. All authorized returned goods must be shipped Freight prepaid to the Medivance location, except Medivance will pay freight costs for Product shipped-in-error. Returns that are authorized for Product ordered-in-error or shipped-in-error will not be accepted unless returned within 30 days of delivery.
All returns are subject to a 25% handling/restocking charge, except for Products shipped-in-error.
Credit will be issued for all authorized returns provided:
- Disposable Products have at least nine months shelf-life remaining.
- Proper authorization has been obtained prior to return of products.
- Products are in their original packaging.
- Products are current inventory items.
- The Products have been shipped and billed to Buyer by Medivance, and Buyer has paid for said Products.
Certain Products are not eligible for return. These are:
- Products that have deteriorated because of improper handling, abuse or other factors.
- Products that have been opened, partly used or which the labels or seals have been removed or tampered.
- Special products made to Buyer's specification.
Products that are to be returned for repair (e.g., medical device equipment) must be accompanied by an approved RGA number.
EXPIRATION DATE
On dated products, the expiration date is shown as a month and year, e.g., August 2009, 8/09. The date of expiration is the last day of the given month, e.g., August 31, 2009.
Credits for returned goods are conditioned upon Medivance's inspection and approval of such goods upon their return. If Medivance determines, in its discretion, that any returned goods are not eligible for return due to any of the reasons provided in paragraph 4 above, Buyer will not receive a credit, even if an RGA number was issued. No advance credits will be accepted.
LIMITED WARRANTY
With respect to disposable products, Medivance warrants to the original purchaser that, at time of delivery, each standard product manufactured by Medivance shall be free of defects in material and workmanship and, when used for the purposes and indications described on the labeling, is fit for the purposes and indications described on the labeling. All warranties for a product shall expire as of product expiration date, or if none, after one (1) year from the date of shipment from Medivance. Medivance's Limited warranty hereunder shall not apply if: (i) a product is not used in accordance with its instructions or if it is used for a purpose not indicated on the labeling, (ii) any repairs, alterations or other work has been performed by Buyer or others on such item, other than work performed with Medivance's authorization and according to its approved procedures; or (iii) the alleged defect is a result of abuse, misuse, improper maintenance, accident or the negligence of any party other than Medivance. The Limited warranty set forth herein is conditioned upon proper storage, installation, use and maintenance in accordance with applicable written recommendations of Medivance. The Limited warranty furnished hereunder does not extend to damage to items purchased hereunder resulting in whole or in part from the use of components, accessories, parts or supplies not furnished by Medivance.
With respect to disposable products, Medivance warrants to the original purchaser that, at time of delivery, each standard product manufactured Medivance's sole obligation shall be to repair or replace, at Medivance's option, any defective component or item and pay reasonable transportation expenses for such replacement. Buyer shall provide labor for the removal of the defective component or item and installation of its replacement at no charge to Medivance. Buyer shall bear all risk of loss or damage to returned goods while in transit. In the event no defect or breach of warranty is discovered by Medivance upon receipt of any returned item, the item will be returned to Buyer at Buyer's expense and Buyer will reimburse Medivance for the transportation charges, labor and associated charges incurred in testing the allegedly defective item.
MISCELLANEOUS
Any required notices shall be given in writing, in the case of Medivance, at the address set forth below, and in the case of Buyer, at the address designated on Buyer's purchase order or to such other address as either party may substitute by written notice to the other and shall be deemed given upon personal delivery, overnight delivery or three days following deposit in the mail.
Except as expressly provided herein, no changes or modifications to, or waiver of, any of these terms and conditions shall be valid or binding on either party unless in writing and signed by an authorized representative of each party. Medivance's failure or delay to exercise or enforce any of its rights hereunder shall not constitute or be deemed to be a waiver of such rights or forfeiture of such rights, and Medivance may, at its option, from time to time, exercise any of its rights or remedies.
These Terms bind Buyer and its successors and permitted assigns.
Medivance will use its reasonable efforts to fill orders, but Medivance shall not be liable for nonperformance or delays caused by a shortage of raw materials, manufacturing problems, delivery or labor problems, priorities, acts of regulatory agencies or judicial bodies, discontinuation of a product line, acts of God or third parties, infringement claims, or other causes beyond its reasonable control. Buyer agrees that in such events Medivance may allocate products among all purchasers as it deems reasonable, without liability. Medivance reserves the right from time to time to substitute a product with a product that has the same function as such product, or to delete a product.
The products are sold subject to New York law. These terms and any dispute or claim relating to these terms or the sale of products ("Claim") shall be governed by and construed under New York law, notwithstanding its law of conflicts of law.
Medivance shall promptly deliver written notice or verbal or email, followed by written, notice of any recall of Product or post such recall on a website for such purposes. Medivance shall replace, to the extent reasonably possible, any such recalled Products as soon as practicable with comparable Products not subject to such recall.
Buyer may not change, adulterate, obscure, remove or deface trademarks, tradenames or labels appearing on any Product of Medivance.
If the pricing offered by Medivance to a Buyer constitutes a discount or other reduction in price under Section 1128(b)(3)(a) of the Social Security Act 42 U.S.C. 1320a-7b(b)(3)(a), and C.F.R. § 1001.952(h), Buyer shall disclose the discount or reduction in price to the fullest extent required under any state or federal program that provides cost or charge-based reimbursement to Buyers for products. This act requires, among other things, that Buyer fully and accurately report on any claim or request for payment it submits to Medicare and Medicaid the actual purchase price paid by Buyer for products, net of any discounts, rebates or allowances. Buyer may also be required, upon request, to provide documentation of the discount or other reduction in price to the Secretary of Health and Human Services.
In all cases, all intellectual property rights in and to, and all technology relating to, the Products supplied to Buyer, their design and all improvements thereto or thereof, whether or not such Product, design or improvement is made pursuant to Buyer's specifications or at Buyer's expense, shall be and remain the exclusive property of Medivance.
Any knowledge or information that Buyer may disclose to Medivance shall not be deemed to be confidential or proprietary information, and shall be acquired by Medivance free from any restriction.
Medivance shall not in any event be liable to buyer for any indirect, incidental, special, punitive or consequential damages (including any damage for lost profits), or otherwise arising out of or in connection with furnishing of products, parts or service hereunder, or the performance, use of, or inability to use any products, parts or service, or otherwise, whether based in contract, warranty, tort, including without limitation, negligence, or any other legal or equitable theory. Medivance's total liability for any claim or action shall not exceed the purchase price of the products out of which such claim or action arose.
If any of the products are medical devices, Buyer acknowledges that it is familiar with the Safe Medical Devices Act of 1990 (the "Devices Act") and the reporting obligations imposed on device users thereunder. In this regard, Buyer agrees to notify Medivance within ten (10) days of the occurrence of any event identified in the Devices Act imposing a reporting obligation on Buyer and/or Medivance (except for events representing an imminent hazard that require notification to the United States Food and Drug Administration (the "FDA") within seventy-two hours, in which case, such notice will be delivered to the other party immediately). Buyer shall maintain adequate tracking for the products to enable Medivance to meet the FDA requirements applicable to the tracking of medical devices.
Buyer shall purchase the products for its own use only, and shall not resell the products to any other party. Buyer represents it has examined the products and that they are acceptable and clinically suitable for its intended purposes.
SHIPPING
Freight charges will be prepaid and added to the invoice when orders are shipped via a transportation mode and carrier selected by Medivance. Unless otherwise stated in an agreement, shipment will be made F.O.B. Origin.
Proof of Delivery: Medivance will provide proof of delivery upon request. If excessive proofs of delivery are requested, Medivance may charge a service fee to offset its administrative costs.
DAMAGE OR LOSS IN TRANSIT
Identity of items and extent of damage or loss must be noted on Buyer's copy of delivery document by the agent of the transportation company. If damage is discovered after receipt of shipment, notify the transportation company immediately and request that inspection be made and an inspection report rendered. Concealed shortages or damages within palletized shipments must be reported to Medivance Customer Support within 72 hours of delivery or credit will not be allowed. Medivance will issue a credit for the loss or damage and file a claim with the carrier, providing your request is promptly forwarded to Medivance and received within ten (10) days of delivery. This claim request must be accompanied by a delivery receipt or an inspection report upon which the transportation company has properly noted such damage or loss.
Send copy of carrier freight bill to Customer Support indicating item and quantity damaged or not received.
Count and inspect your freight before carrier departs. Damaged merchandise should not be accepted.
Please forward all information to Attn: Customer Support, Medivance Inc., 321 South Taylor Avenue, Suite 200, Louisville, CO 80027. (877) 267-2314, Ext. 2.
FOR ORDER PLACEMENT
Medivance welcomes orders either electronically, mail or by fax. For questions and product inquiries, please call (877) 267-2314, Ext. 2. Electronic orders should be emailed to orders@medivance.com. Fax orders, please dial (720) 880-5400.
Copyright © 2009 Medivance Inc. All rights reserved.