1.1 Invoicing and Payment. Equipment will be invoiced to Customer upon tender of delivery thereof to the carrier. The Customer shall pay the Company's invoices according to the terms specified in the Company's estimate. If no estimate or specific terms are provided, payment must be made prior to shipment. Customer may pay for Products using electronic fund transfers, ACH, or checks. Company reserves the right to add to any account outstanding for more than 30 days a service charge equal to the lesser of the maximum allowable legal interest rate or 1.5% of the principal amount due at the end of each month. Customer shall pay all costs (including attorneys ’fees) incurred by Company in attempting to collect amounts due and otherwise enforcing these terms and conditions. If requested, Company will provide appropriate lien waivers upon receipt of payment. Company may at any time decline to ship, make delivery, or perform work except upon receipt of cash payment, letter of credit, or security, or upon other terms and conditions satisfactory to Company. Customer agrees that, unless Customer makes payment in advance, Company will have a purchase money security interest in all equipment to secure payment in full of all amounts due Company and its order for the equipment, together with these terms and conditions, form a security agreement (as defined by the UCC in the United States and as defined in the Personal Property Security Act in Canada). Customer shall keep the equipment free of all taxes and encumbrances, shall not remove the equipment from its original deployment point and shall not assign or transfer any interest in the equipment until all payments due Company have been made. The purchase money security interest granted herein attaches upon Company’s acceptance of Customer’s order and on receipt of the equipment described in the accepted Proposal but prior to its deployment. The parties have no agreement to postpone the time for attachment unless specifically noted in writing on the accepted order. Customer will have no rights of set off against any amounts, which become payable to Company under this agreement or otherwise.

1.2 Ordering; Shipping Terms. Orders can be placed by telephone, facsimile, or email. All Equipment sales shall be made as follows: FOB Company’s U.S. manufacturing facility or warehouse (full freight allowed). Title and risk of loss or damage to Equipment will pass to Customer upon tender of delivery of such to carrier at Company’s U.S. manufacturing facility or warehouse.

1.3 Minimum Order. Company has a minimum purchase order requirement of $20.00.

1.4 Acceptance. These terms and conditions are an integral part of Company’s proposal and form the basis of any agreement (the “agreement”) resulting from Company’s proposal (the “proposal”) for the sale of the described commercial equipment and any ancillary services (the “equipment”). COMPANY’S TERMS AND CONDITIONS ARE SUBJECT TO PERIODIC CHANGE OR AMENDMENT. The Proposal is subject to acceptance in writing by the party to whom this proposal is made (“Customer/Entity”) delivered to Company within 30 days from the date of the proposal. If Customer accepts the proposal by placing an order, without the addition of any other terms and conditions of sale or any other modification, Customer’s order shall be deemed acceptance of the proposal subject to Company’s terms and conditions. If Customer’s order is expressly conditioned upon Company’s acceptance or assent to terms and/or conditions other than those expressed herein, return of such order by Company with Company’s terms and conditions attached or referenced serves as Company’s notice of objection to Customer’s terms and as Company’s counterproposal to provide equipment in accordance with the Proposal and the Company’s terms and conditions. If Customer does not reject or object in writing to Company within 10 days, Company’s counterproposal will be deemed accepted. Customer’s acceptance of the equipment will in any event constitute an acceptance by Customer of Company’s terms and conditions. This agreement is subject to credit approval by Company. Upon disapproval of credit, Company may delay or suspend performance or, at its option, renegotiate prices and/or terms and conditions with Customer. If Company and Customer are unable to agree on such revisions, this agreement shall be canceled without any liability.

1.5 Claims. Company will consider claims for concealed shortages in shipments or rejections due to failure to conform to an order only if such claims or rejections are made within 15 days of delivery and are accompanied by the packing list and, if applicable, the reasons in detail why the Equipment does not conform to Customer’s order. Upon receiving authorization and shipping instructions from authorized personnel of Company, Customer may return rejected equipment, transportation charges prepaid, for replacement. Company may charge Customer any costs resulting from the testing, handling, and disposition of any equipment returned by Customer which are not found by Company to be nonconforming. All equipment damaged during shipment and all claims relating thereto must be made with the freight carrier in accordance with such carrier’s policies and procedures. Claims for equipment damaged during shipment are not covered under the warranty provision stated herein.

1.6 Return of Products. Returns must have prior approval by Company and are subject to restocking charge where applicable. Equipment, material and/or parts that are not manufactured by Company are not warranted by Company and have such warranties as may be extended by the respective manufacturer. No warranty liability whatsoever shall attach to Company until Customer’s complete order has been paid for in full and Company's liability under this Warranty shall be limited to the purchase price of the Equipment shown to be defective. Again, additional warranty protection is available on an extra-cost basis and must be in writing and agreed to by an authorized signatory of the Company. EXCEPT FOR COMPANY’S WARRANTY EXPRESSLY SET FORTH HEREIN, COMPANY DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY WARRANTIES, EXPRESS OR IMPLIED CONCERNING ITS PRODUCTS, EQUIPMENT OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF DESIGN, MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE, OR OTHERS THAT ARE ALLEGED TO ARISE FROM COURSE OF DEALING OR TRADE.

1.7 Delivery and Delays. Delivery dates are approximate and not guaranteed. Company will use commercially reasonable efforts to deliver the equipment on or before the estimated delivery date, will notify Customer if the estimated delivery dates cannot be honored, and will deliver the Equipment and services as soon as practicable thereafter. In no event will Company be liable for any damages or expenses caused by delays in delivery.

1.8 Cancellation. Non-Catalog Equipment is specially manufactured in response to custom order requests. These custom non-catalog orders placed with and accepted by Company cannot be delayed, canceled, suspended, or extended except with Company's written consent and upon written terms accepted by Company that will reimburse Company for and indemnify Company against loss and provide Company with a reasonable profit for its materials, time, labor, services, use of facilities and otherwise. Customer will be obligated to accept any Equipment shipped, tendered for delivery, or delivered by Company pursuant to the order prior to any agreed delay, cancellation, suspension, or extension of the order. Any attempt by Customer to unilaterally revoke, delay or suspend acceptance for any reason whatever after it has agreed to delivery of or accepted any shipment shall constitute a breach of this Agreement. For purposes of this paragraph, acceptance occurs by any waiver of inspection, use or possession of equipment, payment of the invoice, or any indication of exclusive control exercised by Customer.

2.0 PRICING AND TAXES.

Following acceptance without addition of any other terms and condition of sale or any other modification by Customer, the prices stated are firm provided that notification of release for immediate production and shipment is received at Company’s factory not later than one month from order acceptance. If such release is received later than 30 days from order acceptance date, prices will be increased a straight 2% (not compounded) for each one-month period (or part thereof) beyond the one-month firm price period up to the date of receipt of such release. If such release is not received within six months after the date of order acceptance, the prices are subject to renegotiation or, at Company’s option, the order will be canceled. Any delay in shipment caused by Customer's actions will subject prices to increase equal to the percentage increase in list prices during that period of delay and Company may charge Customer with incurred storage fees. In no event will prices be decreased. The price of equipment does not include any present or future foreign, federal, state, or local property, license, privilege, sales, use, excise, value-added, gross receipts or other like taxes or assessments. Such amounts, if any, will be itemized separately to Customer, who will make prompt payment to Company. Company will accept valid resale & exemption documentation for such from Customer, if applicable. All prices include packaging in accordance with Company’s standard procedures. Charges for special packaging, crating, or packing are the responsibility of Customer. A 3% processing fee will be applied to credit card payments for orders over $1,500 that are not processed automatically through our website effective 6/1/2024. To avoid this fee, consider using wire transfer or ACH payment options.

3.1 General. Company represents and warrants that throughout the Term of this Agreement and any extension hereof, Company and all Products shall be and shall remain in compliance with all applicable federal, state and local laws and regulations.

Company and Customer agree and acknowledge that by entering into this Agreement they have not established, and do not intend to establish, a “business associate” relationship, as such term is defined under HIPAA. Under no circumstances will either Party request from the other Party, nor will either Party provide to the other Party, any protected health information.

4.1 Indemnification. To the fullest extent permitted by law, Company and Customer hereby agree to mutually indemnify, defend, and hold harmless each other, their respective parents, subsidiaries, affiliates, directors, officers, employees, agents, and insurers from and against any and all claims, actions, costs, expenses, damages, and liabilities, including reasonable attorneys' fees, arising out of the acts or omissions of each party and their respective employees or other authorized agents acting under their control or supervision in connection with their activities within the scope of this agreement. This indemnification shall include but not be limited to claims resulting from death or bodily injury, damage to real or personal property, or any other form of liability, to the extent caused by negligence or misconduct. Neither party shall indemnify the other against claims, damages, expenses, or liabilities to the extent attributable to the acts or omissions of the other party. If both parties are found to be at fault, the obligation to indemnify shall be proportional to their relative fault. The duty to indemnify will continue in full force and effect, notwithstanding the expiration or early termination of this agreement, with respect to any claims based on facts or conditions that occurred prior to expiration or termination. The indemnified party shall give written notice of a claim to the indemnifying party upon receipt of a notice of a claim or potential claim, and the indemnifying party shall promptly advance any and all expenses incurred by the indemnified party in connection with such claim. The indemnifying party shall not enter into any settlement agreement on behalf of the indemnified party without the prior written consent of the indemnified party.

4.2 Warranties and Published Specifications.

Company hereby warrants that all products supplied hereunder shall be free and clear of all liens and encumbrances, that Company has good and merchantable title, and that each of the products shall be free from defects in design, material, workmanship, and labeling. Furthermore, Company warrants that all products shall conform to the published specifications for such product and Company representations regarding the functions and uses for which the product is marketed.

Exceptions to this warranty include:

• A three-year warranty on all poly chart index dividers and poly stat flags products (excluding pockets).
• A two-year warranty on all porta cart and utility cart products and electric lift assemblies.
• An eighteen-month warranty on all MCB clipboards.
• A one-year warranty on Magneflex arms and electronic locks.
• A thirty-day warranty on all Service Programs.
• All original Equipment Manufacturer (OEM) Products resold by Company are warranted by the respective manufacturer, including power systems, power cords, and computer hardware.

This warranty does not cover product abuse, modification, failure to adhere to product instructions, improper operations and/or misuse. Company is not responsible for damage arising from failure to follow instructions relating to the product’s intended use or injury or loss caused by or associated with the installation and/or use of equipment in any manner other than in strict conformance with the instructions set forth in its installation manuals, supplemental assembly and installation instruction sheets, technical bulletins, and/or product literature. Customers must provide immediate written notice to Company of any personal injury resulting from the use of Company products. Company does not warrant damages or defects to the Company product under the following conditions: an Act of God, unauthorized service or repair of the Company products, damage from electrical power problems, usage of parts or components not supplied by Company, failure to follow product instructions and guidelines, unauthorized changes to the Company product, shipping damage (other than original shipment from Company), failure to perform preventative maintenance, or damage caused by peripherals or software or from other external sources.

The exclusive remedy for warranty repair includes repair or replacement of the defective unit determined to be under warranty at a designated Company location or at the customer's location, subject to Company's sole discretion. Labor costs associated with warranty repair may be the responsibility of Company if determined to be under warranty, provided that pre-approval by Company for the labor costs is received prior to repair or replacement of warranty products. A Return Material Authorization (RMA) number must be obtained from Company for warranty repairs. Repairs on products out of warranty carry a standard repair fee specific to the product and a 90-day warranty effective from the date of repair.

For non-warranty repair, customers must obtain a pre-approved RMA number from Company. Labor costs and freight charges associated with non-warranty repair are the sole responsibility of the customer, reseller, or installer/integrator. Customers may choose to upgrade to a newer, functionally equivalent product at a normal MSR list price, have the product returned, or request in writing that Company appropriately dispose of the product.

Except as expressly set forth in this Limited Warranty and to the greatest extent allowed by law, Company makes no other representations, warranties, or conditions, express or implied, including any implied representations, warranties, or conditions of merchantability, fitness for a particular purpose, non-infringement, and non-interference. No agent, employee, or representative of Company has any authority to bind Company to any affirmation, representation, or warranty concerning Company products or parts, except as stated herein. Company does not warrant that your use of the Company product will be uninterrupted or error-free. This warranty is expressly limited to purchasers of Company products from Company directly or from Company authorized resellers. The warranty is limited to Company products and components. This Limited Warranty is subject to change without notification. Company products are not intended to cure, treat, mitigate, or prevent any disease.

This Limited Warranty is available only to the original end consumer and is non-transferable. For this warranty to be valid, Company products must have been purchased directly from an authorized distributor, reseller, and/or authorized representative of Company

5.1 Definition of Confidential Information. For the purposes of this Agreement, confidential information “Confidential Information” shall mean all proprietary, secret or confidential information or data relating to Customer or Company and their respective operations, employees, services, patients or customers, including purchase data and pricing information under this Agreement.

5.2 Protection of Confidential Information. Company and Customer acknowledge that either party may disclose Confidential Information to the other in connection with this Agreement.Upon receiving Confidential Information, the receiving party shall:

(a) maintain the Confidential Information in strict confidence;

(b) Employ the same degree of care in maintaining the secrecy of the Confidential Information as it uses for its own proprietary, secret, or confidential information, but no less than a reasonable degree of care;

(c) use Confidential Information solely to fulfill its obligations under this Agreement and for internal business purposes; and

(d) Upon request by Customer or Company, return or destroy all documents, copies, notes, or other materials containing any portion of the Confidential Information.

5.3 Confidentiality. Except as otherwise permitted by this Agreement, neither Customer nor Company shall disclose the terms of this Agreement to any other person or entity outside its organization and affiliates except as required by law. For the purpose of this provision, an affiliate is defined as an entity in which Customer or Company, as appropriate, maintains an ownership position or a contractual relationship, and the disclosure is necessary for fulfilling obligations hereunder.

5.4 Limitation on Obligation. Company and Customer shall bear no obligation concerning any portion of the Confidential Information which:

(a) was known to it before receipt, directly or indirectly, from the disclosing party;

(b) is lawfully obtained, directly or indirectly, from a non-party not under an obligation of confidentiality;

(c) Becomes publicly available other than through the receiving party's act or omission;

(d) Is required to be disclosed by applicable law or legal process; or

(e) Is developed independently by the receiving party without reference to the Confidential Information disclosed by the disclosing party. The receiving party shall not disclose any portion of the Confidential Information to any person except its employees and affiliates having a need to know such information to fulfill the purposes contemplated by this Agreement.

6.1 Governing Law and Venue. This Agreement is being delivered and executed in the State of New York. Any controversy, claim or dispute arising out of or relating to this Agreement between Customer and First shall be resolved exclusively by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association (“AAA”). The arbitration shall be heard before a panel of three (3) neutral arbitrators who will have no power or authority to award treble, punitive, exemplary, consequential, or other damages not measured by the prevailing party’s actual damages. The proceeding will be held in Buffalo, New York, and the costs of the arbitration, as well as reasonable attorney’s fee as determined by the arbitrators, will be awarded to the prevailing party. The decision of the arbitrators shall be final and binding and the parties irrevocably submit to the jurisdiction of the United States District Court for the Western District of New York for enforcement of the arbitral award. The parties agree to be subject to personal jurisdiction in and consent to service of process issued by a court in which venue is proper as defined in this Section 6.1.

6.2 Modification, Waiver, and Breach.

Modification and Waiver: Any modification of this Agreement or waiver of a breach of any provision(s) shall not be effective unless made in writing and signed by all parties hereto, except as otherwise expressly permitted by this Agreement. Furthermore, any waiver of a breach of this Agreement shall not be deemed effective unless made in writing and signed by the party against whom enforcement of the waiver is sought.

Breach by Customer: The following events or conditions shall constitute a breach by Customer and shall afford Company the right, without an election of remedies, to take appropriate actions, including termination of this agreement, requiring payment prior to shipping, or suspending performance, upon delivery of written notice:

1. Failure by Customer to pay amounts when due.
2. General assignment by Customer for the benefit of its creditors, or if Customer becomes bankrupt or insolvent or takes the benefit of any statute for bankrupt or insolvent debtors, or makes or proposes to make any proposal or arrangement with creditors, or if any steps are taken for the winding up or other termination of Customer or the liquidation of its assets, or if a trustee, receiver, or similar person is appointed over any of the assets or interests of Customer.
3. Any representation or warranty furnished by Customer in connection with this agreement is false or misleading in any material respect when made.
4. Failure by Customer to perform or comply with any material provision of this agreement.

In the event of a breach by Customer, Customer shall be liable to Company for all equipment furnished and all damages sustained by Company, including lost profit and overhead.

6.3 Headings. The descriptive headings of the sections of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any provision hereof.

6.4 Assignment. Neither party may assign, subcontract, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder, nor may it contract with third parties to perform any of its obligations hereunder except as contemplated in this Agreement, without the other party's prior written consent.

6.5 Severability. If any part of this Agreement shall be determined to be invalid, illegal or unenforceable by any valid Act of Congress or act of any legislature or by any regulation duly promulgated by the United States or a state acting in accordance with the law, or declared null and void by any court of competent jurisdiction, then such part shall be reformed, if possible, to conform to the law and, in any event, the remaining parts of this Agreement shall be fully effective and operative insofar as reasonably possible.

6.6 Notices.Any notice required to be given pursuant to the terms and provisions hereof shall be in writing, postage and delivery charges pre-paid, and shall be sent by hand delivery, overnight mail service, first-class mail or certified mail, return receipt requested, to Customer or Company at the addresses set forth on the Cover Sheet. Any party may change the address to which notices are to be sent by notice given in accordance with the provisions of this section. Notices hereunder shall be deemed to have been given, and shall be effective upon actual receipt by the other party, or, if mailed, upon the earlier of the fifth (5th) day after mailing or actual receipt by the other party.

6.7 Independent Contractors. The parties' relationship hereunder is that of independent contractors. This Agreement does not create any employment, agency, franchise, joint venture, partnership or other similar legal relationship between Customer and Company. Neither party has the authority to bind or act on behalf of the other party except as otherwise specifically stated herein.

6.8 Attorneys' Fees. Should any party engage an attorney for the purpose of enforcing this Agreement or any judgment based hereon in any court, including bankruptcy court, courts of appeal or arbitration proceedings, the prevailing party in any resulting action shall be entitled to receive its reasonable attorneys' fees and costs in addition to any other relief granted.

6.9 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. If a digital signature is used to sign this Agreement, all parties agree that it will have the same value, force and effect as a written signature.

6.10 Force Majeure. The obligations of either party to perform under this Agreement will be excused during each period of delay caused by acts of God, war or terrorism, or by shortages of power or materials or government orders which are beyond the reasonable control of the party obligated to perform and prevents the party from being able to perform ("Force Majeure Event"). In the event that either party ceases to perform its obligations under this Agreement due to the occurrence of a Force Majeure Event, such party shall: (a) immediately notify the other party in writing of such Force Majeure Event and its expected duration; (b) take all reasonable steps to recommence performance of its obligations under this Agreement as soon as possible. In the event that any Force Majeure Event delays a party's performance for more than thirty (30) days following notice by such party pursuant to this Agreement, the other party may terminate this Agreement immediately upon written notice to such party.

6.11 Entire Agreement. This Agreement, including the Cover Sheet, the Additional Terms and Conditions (if any) and all Exhibits hereto, constitutes the entire understanding and agreement between Company and Customer concerning the subject matter hereof, and supersedes all prior negotiations, agreements and understandings between Company and Customer, whether oral or in writing, concerning the subject matter hereof.

6.12 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement. ;

6.13 Export Laws. The obligation of Company to supply equipment under this agreement is subject to the ability of Company to supply such items consistent with applicable laws and regulations of the United States and other governments. Company reserves the right to refuse to enter or perform any order, and to cancel any order, under this Agreement if Company in its sole discretion determines that performance of the transaction to which such order relates would violate any such applicable law or regulation. Customer will pay all handling and other similar costs from Company’s factories including the costs of freight, insurance, export clearances, import duties and taxes. Customer will be “exporter of record” with respect to any export from the United States of America and will perform all compliance and logistics functions in connection therewith and will also comply with all applicable laws, rules, and regulations. Customer understands that Company and/or the Equipment are subject to laws and regulations of the United States of America which may require licensing or authorization for and/or prohibit export, re-export, or diversion of Company’s Equipment to certain countries, and agrees it will not knowingly assist or participate in any such diversion or other violation of applicable United States of America laws and regulations. Customer agrees to hold harmless and indemnify Company for any damages resulting to Customer or Company from a breach of this paragraph by Customer.