1. Acceptance - ALL SALES ARE SUBJECT TO AND EXPRESSLY CONDITIONED UPON THE TERMS AND CONDITIONS CONTAINED HEREIN, AND UPON CUSTOMER'S ASSENT THERETO. THE TERMS AND CONDITIONS CONTAINED HEREIN WILL BE CONTROLLING, AND ANY ADDITIONAL AND/OR INCONSISTENT TERMS AND CONDITIONS SET FORTH IN ANY ACKNOWLEDGMENT, PURCHASE ORDER, OR ACCEPTANCE DOCUMENTS REQUESTED FROM AND/OR PROVIDED BY CUSTOMER ARE EXPRESSLY REJECTED. NO VARIATION OF THESE TERMS AND CONDITIONS WILL BE BINDING UPON ELEVATION SUPPLY UNLESS AGREED TO IN WRITING AND SIGNED BY AN OFFICER OR OTHER AUTHORIZED REPRESENTATIVE OF ELEVATION SUPPLY.
2. Specifications - Product specifications are subject to change without prior notice.
3. Delivery - Delivery of all orders will be FCA (INCOTERMS 2010) and title of all Products shall transfer to Customer upon ELEVATION SUPPLY delivery of such Products to the carrier. Shipping and handling fees, special packaging materials (e.g., blue ice), carrier surcharges (including fuel surcharges) and hazardous material fees imposed by government regulation will be added separately to the invoice.
4. Damaged Shipments - Please inspect your ELEVATION SUPPLY shipment upon receipt. If any external damage is noticed, accept the shipment only after the driver has noted the damage on both his and your copies of the delivery receipt and you have requested an inspection by the carrier. Keep all containers and packing material for inspection. If, upon opening a shipment, you find a shortage or damage, you must request inspection by the carrier within 24 hours of delivery or you will relinquish your right to make a claim. ELEVATION SUPPLY reserves the right to repair a damaged product, where applicable, before replacement or credit is determined.
5. Payment Terms - For internet orders, payments must be made at time of order via credit card. If an order is placed via a sales representative it will be by credit card either over the phone or in person. Any other types orders (Purchase Orders or Standing Orders) will require payment terms agreed to in advance and will be subject to the following upon acceptance of order by Elevation Supply:
Customer will provide ELEVATION SUPPLY, concurrent with each payment, with remittance information in sufficient detail (to the invoice level or line level as the case may be) to allow ELEVATION SUPPLY to properly apply payments or credit memos to outstanding receivable(s) on ELEVATION SUPPLY's accounts receivable sub-ledger for Customer. Customer shall also include its account number with any remittance. Failure to supply ELEVATION SUPPLY with such remittance detail will result in additional processing delays and may affect the credit status of pending or future Customer purchase orders. When Customer wishes to apply one or more credit memos towards a payment amount owed ELEVATION SUPPLY, Customer agrees to provide ELEVATION SUPPLY, on a timely basis, the specific credit memo number(s) and amount(s) to be applied, in addition to the remittance information requirements above. If Customer does not provide such information on a timely basis, ELEVATION SUPPLY shall apply any such credit memos to outstanding receivables, beginning with the most-aged receivables first. ELEVATION SUPPLY reserves the right to furnish payment history data and related information to third party companies for fraud protection and credit risk reduction.
Customer agrees to complete, sign and submit a standard ELEVATION SUPPLY credit application to ELEVATION SUPPLY
. Customer will provide, or make available to ELEVATION SUPPLY upon request, its latest audited financial statements (or unaudited financial statements, if audits are not performed). ELEVATION SUPPLY agrees to keep such information confidential and to use it exclusively to evaluate and apply a credit score or rating to Customer for extension of credit purposes or pending transactions. Furthermore, Customer agrees to inform ELEVATION SUPPLY of any material adverse change in its business that would reasonably be expected (by an independent 3rd party) to negatively impact its outstanding or future payment obligations and the terms or conditions contained herein. A change shall include, but not be limited to, any change in Customer's credit rating as determined by any single major rating agency, including Standard & Poor's, Moody's, Fitch or Dominion Bond Rating Service.
All non-credit card orders must be paid within (30) days from date of invoice (net 30). Payments are to be made in freely available United States dollars, including applicable taxes, and other charges such as government imposed surcharges which ELEVATION SUPPLY may be required to pay or collect with respect to the sale or transportation of the Products, or the provision of Services. Payment is considered late when it is received by ELEVATION SUPPLY after the due date, which may result in an additional service charges as described further in this section. Any payments received no later than 2.00 PM Mountain Standard Time will be credited to Customer's account as of the date received, while payments received after 2.00 PM Mountain Standard Time will be credited to Customer's account the following business day. Delinquent accounts will be subject to a service charge on past due amounts of one and one-half percent (1 1/2%) per month (or, if less, the maximum amount permitted by law). Payment by credit card may be used as a prepayment method, full payment when placing orders via the website, or for past due collections.
6. Sales Tax - Sales taxes where applicable (local, state or federal) will be added to the invoice price. If you are exempt from sales taxes, please be sure to provide the proper documentation at the time of ordering.
7. Product Return Policy/Cancellation
a) All returns must be authorized by ELEVATION SUPPLY in order to insure proper credit and must be requested within 30 days of purchase. NOTE: All returns are subject to a minimum 15% restocking charge and any cancellations may be subject to an additional cancellation fee. For returns not due to ELEVATION SUPPLY error, customer is responsible for all transportation fees related to the returned product. To ensure proper credit, each Product return must include the following information: Customer Name and Address Purchase Order Number ELEVATION SUPPLY Shipping Order Number Date of Invoice Catalog Number of Returned Item(s) ELEVATION SUPPLY Return Authorization Number Reason for Return
b) Products not authorized for return include: Products not in completely resalable condition (including Products with damaged, missing or defaced labeling or packaging) Diagnostic, sterile or any controlled products (unless products do not meet specification) Products which are not inventoried by ELEVATION SUPPLY and are not able to be returned to the manufacturer Products purchased on a Special Order Basis Products not purchased from ELEVATION SUPPLY Products with an expired shelf life or an expiration date too short for resale Discontinued products
c) Shipping documents must also meet applicable transportation regulations. The product should be shipped to the indicated service center and the transportation charges prepaid. To ensure prompt handling, the return authorization number should be placed on the outside of the package.
8. Product and Service Warranties and Limitation of Liability
a) ELEVATION SUPPLY warrants to the original Customer only that: i. All Products, branded and private label, will meet the manufacturer's specifications for a term equal to the warranty period stated in the Product manufacturer's literature or sixty (60) days, whichever is longer; and ii. ELEVATION SUPPLY makes no claims or warranties concerning sustainable/green products. Any claims concerning sustainable/green products, including but not limited to, any of the following: green, recycled, recyclable, reusable, refillable, renewable, biodegradable, degradable, photodegradable, compostable, carbon footprint, renewable sources, source reduced, ozone safe, ozone friendly, environmentally friendly, no CFC.s, CRC-Free, are the sole claims of the manufacturer and not those of ELEVATION SUPPLY.
b) ELEVATION SUPPLY HEREBY DISCLAIMS ALL OTHER WARRANTIES OR GUARANTEES WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
c) The liability of ELEVATION SUPPLY under this limited warranty does not extend to any Products which are abused, altered or misused by the Customer or any other persons or entities or which become defective or non-conforming through the actions or inaction of the Customer or any other persons or entities. A defective or non-conforming Product is defined only as a Product which is outside of the manufacturer's defined Product specifications, and shall not include Products that fail to meet any fitness of use by Customer or any unique Customer operating conditions or applications.
d) If any Product or Service warranted hereunder proves defective or doe not conform to manufactures specifications, ELEVATION SUPPLY's sole liability and Customer's sole remedy hereunder shall be for ELEVATION SUPPLY, to repair or, at ELEVATION SUPPLY's option, (i) replace (or re-perform the Service), at no cost to Customer, any such defective or non-conforming Product with a non-defective or conforming Product (as applicable) or (ii) credit Customer's account for all amounts paid with respect to the defective or non-conforming Product or Service upon ELEVATION SUPPLY's receipt of the defective or non-conforming Product. In the event of replacement, the replacement Product will be warranted for the remainder of the original warranty period or ninety (90) days, whichever is longer.
e) When the return of the Product is necessary, a return authorization number will be assigned and the Product shipped, transportation charges prepaid, to the indicated location. To insure prompt handling, the return authorization number should be placed on the outside of the package and a detailed explanation of the defect enclosed with the Product.
f) IN NO EVENT SHALL ELEVATION SUPPLY HAVE ANY OBLIGATION OR LIABILITY FOR ANY EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, USE OR GOODWILL, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OR FORM OF ACTION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. THE TOTAL LIABILITY OF ELEVATION SUPPLY (INCLUDING ITS SUBCONTRACTORS AND AGENTS), IF ANY, FOR DAMAGES RELATING TO ANY PRODUCTS SOLD UNDER THIS AGREEMENT SHALL BE LIMITED TO THE PRICE PAID FOR SUCH PRODUCT(S) AND THE TOTAL LIABILITY OF ELEVATION SUPPLY (INCLUDING ITS SUBCONTRACTORS AND AGENTS), IF ANY, FOR DAMAGES RELATING TO ANY SERVICES PROVIDED UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID FOR THE SERVICE GIVING RISE TO SUCH CLAIM.
9. Export Controls - Products purchased or received under this Agreement are subject to export control laws, restrictions, regulations and orders of the United States. Customer agrees to comply with all applicable export laws, restrictions and regulations of the United States or foreign agencies or authorities, and shall not export, or transfer for the purpose of re-export, any Product to any prohibited or embargoed country or to any denied, blocked, or designated person or entity as mentioned in any such United States or foreign law or regulation. Customer represents and warrants that it is not on the Denied Persons, Specially Designated Nationals or Debarred Persons List and is not otherwise prohibited by law from purchasing the Products or services hereunder. Customer shall be responsible to obtain any license to export, re-export or import as may be required.
10. Anti-corruption – Customer represents and warrants that: (a) it is familiar with and understands the terms of the U.S. Foreign Corrupt Practices Act of 1977, as amended (“U.S. FCPA”), and that Customer will comply with the U.S. FCPA and all other applicable anti-bribery or anti-corruption laws or regulations of any other country or jurisdiction which are applicable to the parties’ business activities hereunder; (b) no principal, partner, officer, director or employee of Customer is or will become an official of any governmental body of any country or jurisdiction (other than the U.S.) that is applicable to the parties’ business activities hereunder; and (c) Customer has not and shall not offer, pay, give, or promise to pay or give, directly or indirectly (including through a third party or intermediary) any payment or gift of any money or thing of value to any government official, government employee (or employee of any company owned in part by a government), political party, political party official, or candidate for any government or political office (each, a “Government Official”) to influence any acts or decisions of such Government Official or to induce such official to use his or her influence with the local government to effect or influence the decision of such government in order to assist either ELEVATION SUPPLY or Customer in its performance of their obligations under this Agreement or to benefit the other party. Failure by Customer to comply with this section shall be deemed a material breach of a material provision of this Agreement and ELEVATION SUPPLY will have the right to immediately terminate this Agreement and its performance without any liability to Customer.
11. Proprietary Information - Each party (a "Recipient") shall maintain in confidence, not disclose to any third party, and not use, except for the specific purpose of performing under this Agreement, all proprietary information furnished to it by the other party (a "Discloser") or any Discloser Affiliate in connection with this Agreement, or derived from the Discloser or any Discloser Affiliate in performance of this Agreement, and shall return to the Discloser or a Discloser Affiliate, upon request, all copies (then in Recipient's possession) of documents and other tangible media furnished by or derived from Discloser or such Discloser Affiliate, respectively, in connection with the performance of this Agreement. The Recipient shall inform its employees, agents, and representatives of these obligations and shall require them to assume equivalent obligations.
a) Termination - This Agreement may be terminated by either party for convenience at any time upon reasonable written notice delivered to the other party. In the event of any termination or expiration of this Agreement, Customer shall be billed immediately for Products shipped through the effective date of such termination or expiration and all custom Products purchased for Customer in OLYMPUS SOLUTIONS's inventories at such date, and Customer shall pay the invoiced amount immediately upon receipt of such invoice.
b) Force Majeure - In the event either party is prevented in whole or in material part from performing its obligations under this Agreement solely as a result of force majeure, upon the prompt giving of notice to the other party detailing such force majeure event and its anticipated duration, the obligations of the party so prevented shall be excused during such period of delay, and such party shall take whatever reasonable steps are necessary to relieve the effect of such cause as rapidly as possible.
c) Merger, Modification, Waiver - No amendment, modification or waiver of these terms shall be binding on either party unless reduced to writing and signed by an authorized officer of the party to be bound, and in the case of a waiver, shall be effective only in the specific instance and for the specific purpose for which given, and shall not be construed as a waiver of any subsequent breach. The failure of either party to enforce at any time or for any period of time any of the provisions of this Agreement shall not be construed as a waiver of such provisions or of the right of such party thereafter to enforce each and every such provision. No course of dealing, usage of trade or course of performance shall supplement, explain or amend any term, condition or instruction of this Agreement, or any shipment of Products hereunder.
d) Applicable Law - This Agreement is made pursuant to, and shall be construed and enforced exclusively in accordance with, the internal laws of Utah (and United States federal law, to the extent applicable), without giving effect to otherwise applicable principles of conflicts of law.
e) Authority to Enter Into Agreement - Each party represents and warrants that it is authorized to enter into this Agreement and that in so doing it is not in violation of the terms or conditions of any contract or other agreement to which it may be a party.
f) Assignment - This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns and designees; provided, however, neither party shall have the right to transfer, assign or delegate its rights or obligations under this Agreement or any portion thereof without the prior written consent of the other party (except that either party may assign this Agreement to a parent, subsidiary or successor corporation without such consent).
g) Nature of Relationship - Neither party, its employees or permitted subcontractors or agents shall, under any circumstances, be considered to be an agent, partner, joint venturer or representative of the other party.