1. Shipment. All shipments shall be FOB Marina’s Sunrise, FL facility or such other facility that Marina may designate. Effective October 10th, 2012, all customers have the option to pick up their order rather than have it shipped. By being given this option, the state of Florida allows Marina Medical to not charge sales tax on the shipping.
2. Payment. Payment terms are Net 30 days. Prices are subject to change at any time at the sole discretion of Marina.
3. Claims. Customer shall have the obligation to examine each shipment of Marina Product, promptly upon Customer’s receipt thereof ; and, unless Customer notifies Marina in writing within five calendar days of delivery to Customer for the shipment in question, Customer shall be deemed to have waived all claims for shortage and non-conformities that Customer should reasonably have discovered as a result of the examination.
4. Credits and Returns. Customer may not return any Marina Product shipped hereunder without first obtaining Marina’s written authorization. Any product received as a result of an error made by Marina may be returned for replacement or credit. Marina may, at its sole discretion, authorize returns of Products not otherwise returnable under the terms of this agreement. In such cases, Marina shall issue Customer a credit for such returns, less fifteen percent (15%) restocking charge if within 30 days and less a twenty-five percent (25%) restocking charge thereafter. All returns and evaluations must be in sellable condition. Marina retains the right to refuse the return of Product that has been with the Customer for 90 days or longer.
5. Default. In the event Customer fails to provide payment of any sum to be paid hereunder, or fails to perform in accordance with any provision hereof, or should Customer become insolvent or file a petition in bankruptcy or insolvency proceeding, then, Marina may, at its option, declare Customer in default of its obligations hereunder and terminate this Agreement upon written notice to customer. In the event of such termination, Customer shall pay Marina a sum not to exceed all amounts owing hereunder. Notwithstanding the foregoing, Marina reserves all rights and remedies available at law or in equity against customer. Customer shall be liable for any and all costs, expenses, and damages, including without limitation reasonable attorney’s expenses, which Marina may sustain by default by Customer.
6. Specification and Warranty. All Marina products shall conform to applicable specifications therefore in effect from the invoice date to the end of the Warranty Period, and Marina reserves the right to change such specifications at any time with or without notice. The Warranty Period for Marina Products shall be as follows calculated from the date of invoice: Stainless Steel instruments (two years), Single Use Products (ninety days). Marina’s sole liability to Customer for nonconformity of any Products to the specifications, therefore, for any claim arising out of or in any way connected with the manufacture, sale, handling, or use of the Products, or for any other reason, shall be, at Marina’s sole option, limited to (i) the refund of the full purchase price for such Products, plus any invoice shipping charges, or (ii) replacement thereof, free of charge to Customer, with products conforming to the then current specifications, therefore. The parties agree that these remedies shall be exclusive. MARINA, AND ITS AFFILIATES, SHALL HAVE NO LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY KIND OR, EXCEPT AS PROVIDED ABOVE, FOR ANY CAUSE ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE MANUFACTURE, SALE HANDLING OR USE OF SUCH PRODUCTS, EXCEPT AS SPECIFICALLY SET FORTH IN THIS PARAGRAPH, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND THE FOREGOING PROVISIONS OF THIS PARAGRAPH ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.
7. Use of Product. Customer is solely responsible for the proper use of the Products. Customer understands that from time to time, Marina may provide Customer with opinions regarding the possible clinical use of the Products, the potential reimbursement regarding Products by third party payors, or possible methods of cleaning Products. Customer agrees that any such advice is advisory only and will not constitute instructions for use, representatives or warranties, or an inducement to make any claim for reimbursement from a third party payor. Customer will make an independent determination of such opinions.
8. Liability. Customer shall, and does hereby agree to, defend, indemnify and save Marina harmless of any and all loss, cost, expenses, claims (including without limitation, actual attorney’s fees), demands, actions, or proceedings arising out of, or in connection with this Agreement and the performance hereunder, unless caused by the sole negligence of Marina. Customer shall maintain adequate liability insurance with limits of at least $5,000,000 to satisfy the same.