The terms and conditions contained hereafter are by and between HealthWay Home Products, Inc. (the “Company”) and the Vendor. The Purchase Order, including the “Payment and Delivery Terms”, the “Standard Terms and Conditions,” and any addendum or additional exhibits attached hereto (collectively the “Agreement”), are intended by the Company and the Vendor as a final expression of their agreement and are a complete and exclusive statement of the terms and conditions thereof. This Agreement supersedes all prior representations, understandings purchase orders or agreements between the Company and the Vendor, either written or oral, and shall constitute the sole terms and conditions of sale for products or equipment under the Agreement. The Company shall not be bound by any provisions, printed or otherwise, at variance with the Agreement that may appear on any acknowledgment, purchase order or other form used by the Vendor, such provisions being expressly rejected. No waiver, change, or modification of any terms or conditions of this Agreement shall be binding on the Company unless made in writing and signed by an authorized representative of the Company.
The Vendor will provide the product or equipment specified in the Purchase Order in accordance with the delivery schedule set out in this Agreement or any amendment or change thereto. Unless otherwise specified in this Purchase Order, all delivery will be Ex-Work Factory/Vendor’s location.
Unless otherwise provided in the Agreement, risk of loss for, and title to, the product or equipment shall pass to the Company at Ex-Work Factory/Vendor’s location.
Product or equipment delivered in accordance with this Agreement shall be subject to inspection by the Company, at Company’s destination point. If any product or equipment is found to be defective, or otherwise not in conformity with the requirements of this Agreement, then within ten (10) business days of receipt of the product or equipment, Company may, in addition to its other rights and remedies, reject the product, and require prompt correction or replacement at Vendor’s expense. In addition, acceptance of all or a part of the product or equipment, or payment therefore or failure to notify Vendor, shall not waive or affect Company’s right to cancel or return all or part of the product, or recover damages, or recover upon Vendor’s warranties or agreements of indemnity.
Unless otherwise specified in the Purchase Order, all payments due Vendor will be made within thirty (30) days from delivery and acceptance of the product or equipment, and receipt of Vendor’s invoice.
Vendor represents and warrants to the Company that all product or equipment to be delivered under this Agreement will be (a) of good quality, (b) free from any latent or patent defects, (c) will conform to the product or equipment specifications (d) will be free and clear of all security interests, liens, charges, or encumbrances of any kind, nature, or description, (e) shall be manufactured pursuant to all applicable laws, and regulations of the country where the product or equipment was manufactured and will be used, and (f) will be safe for the use intended, and does not contain any chemicals or materials that are harmful to human health and wellbeing, or the environment.
Unless otherwise specified in this Agreement, Vendor warrants that the product or equipment purchased in connection with this Agreement are free from defects for the specific period set forth in the warranty provided by the Vendor with the purchase of the product or equipment. Vendor agrees to repair any item found to be defective during the warranty period at its expense.
Vendor hereby agrees to the fullest extent permitted by law, to indemnify and hold harmless the Company and its agents and affiliates from and against claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from this Agreement, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property, but only to the extent caused by the negligent acts or omissions of the Vendor, or anyone directly or indirectly employed or contracted by them or anyone for whose acts they may be liable, or for bodily injury, sickness, disease, or death resulting from product, or equipment malfunction or failure.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, NEITHER COMPANY NOR VENDOR SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL LOSSES OR DAMAGES, WHETHER ARISING IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO LOSSES OF USE, PROFITS, BUSINESS, REPUTATION OR FINANCING.
The Vendor shall not, and shall not permit any of its subsidiaries and Affiliates or any of its or their respective directors, officers, managers, employees, independent contractors, representatives or agents (collectively, “Representatives”) to, promise, authorize or make any payment to, or otherwise contribute any item of value to, directly or indirectly, any non-U.S. government official, in each case, in violation of the U.S. Foreign Corrupt Practices Act (“FCPA”) or any other applicable anti-bribery or anti-corruption law.
With the exception of assignment to one of Company’s affiliated entities, neither Company , nor Vendor shall, without the prior written consent of the other assign, or transfer this Agreement.
If any provision or any part of a provision of this Agreement shall be determined to be invalid, illegal, or otherwise unenforceable pursuant to any applicable law, such determination shall not impair or otherwise affect the validity, legality, or enforceability of the remaining provision or parts of the provision of the Agreement, which shall remain in full force and effect as if the unenforceable provision or part were deleted.
The failure of either Company, or Vendor to insist, on one or more instances, on the performance of any of the obligations required by the other under this Agreement shall not be construed as a waiver or relinquishment of such obligation or right with respect to future performance.
The headings used in this Agreement, are for ease of reference only and shall not in any way be construed to limit or alter the meaning of any provision.
Vendor shall not be liable for any damage or penalty for delays or failure to provide the products or equipment in accordance with the Delivery date set out in this Agreement due to acts of God, acts of civil or military authorities, Government regulations, restrictions, shutdowns, or priorities, fires, pandemics, epidemics, quarantines, wars, riots, civil disobedience, or unrest, strikes, or delays in transportations. In the event of any delay cause as afore stated, the delivery date set out in the Agreement shall be extended for a period of time equal to the time of the delay, and this Agreement shall not be void or voidable as a result of such delay, provided Vendor gives Company written notice within twenty (24) hours of the event causing the delay. For purposes of this section notice shall be deemed provided if sent by certified mail, overnight-common carrier, or fax.
This Agreement shall be governed by and construed in accordance with the laws (as opposed to conflicts of law provisions) of the State of New York.
Any dispute arising out of this Agreement shall be subject to binding arbitration conducted by the American Arbitration Association in an agreed-upon location in Oswego County, New York.
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