"the Company" means Echo Healthcare Incorporated.
"the Customer" means any party contracting with the Company.
"Goods" means any equipment or other article or product to be sold by the Company to the Customer.
The terms set out hereunder shall apply to any contract made between the Company and the Customer. These terms to the exclusion of all other terms and conditions constitute the entire contract between the Company and the Customer. No person other than a Director of the Company shall have the authority on behalf of the Company to vary, waive or add to these terms or to make any agreement or give any consent referred to therein and no such variation waiver addition or agreement or consent shall be binding upon the Company unless it is in writing and signed by a director.
(i) No quotation made by the Company shall constitute an offer to contract with the Customer. Any order placed by the Customer in response to such a quotation shall constitute an offer made to the Company on the terms set out herein and shall be binding on the Company only if it is accepted by the Company in writing.
(ii) In any event without prejudice to the preceding sub-clause the supply of the Goods shall only be upon the terms set out herein (subject to any variation waiver addition or agreement made in accordance with Clause 2) and acceptance of delivery of the Goods shall be confirmation of the agreement of the Customer thereto in default of any prior agreement.
(i) The Company's prices are quoted in United States Dollars unless otherwise indicated on the quotation and are exclusive of all government duties and taxes relating to the supply for which the Customer will remain liable at the relevant rate.
(ii) Until an order is binding on the Company in the terms set out in Clause 3 all prices are subject to variation without notice.
(iii) Requests by the Customer to modify or vary specifications must be agreed in writing by the Company and made subject to the Customer paying any resulting additional costs or price increases.
(iv) The Company reserves the right to modify quoted prices whether before or after the order is binding on the Company if prices of components imported from outside the United States or Canada are affected by changes in exchange rates or government duties or taxes to take account of any other variation in costs including without limitation variation in the cost to the Company of supplies, materials, labor, operation or transport provided that in the event of any such changes in price after the purchase order has been placed by the Customer the Customer shall be entitled to cancel the order within 7 days of being notified of the change and each party shall thereupon be discharged from any further liability in relation to the order.
(v) Cost, Insurance and Freight: The cargo insurance and delivery of goods to the named port of destination (discharge) and shipping charges will be at the buyer's expense. Buyer is responsible for the import customs clearance and other costs and risks.
(i) Each consignment shall be invoiced to the Customer together with the cost of carriage where appropriate on the acceptance of an order and except as otherwise agreed the Goods shall not be delivered before payment is made.
(ii) The Company reserves the right to charge interest at Bank of America base rate from time to time plus 3% on all overdue accounts.
(i) Notwithstanding delivery of the Goods or of any document representing the Goods the property in each item of the Goods shall remain with the Company until full payment has been received by the Company for all goods whatsoever supplied by the Company to the Customer under this or any other contract.
(ii) Until such receipt by the Company the Customer shall:
(a) (unless otherwise agreed by the Company in writing) ensure that the Goods are properly stored separately or marked so that they may be readily identified as the property of the Company;
(b) keep the Goods in its possession and control intact and in a good state of repair and condition;
(c) keep the goods insured to their full value against all risks,
(d) keep the Goods free from any charge, pledge lien or other encumbrance and from any distress, execution or other legal process; and
(f) upon request inform the Company of the whereabouts of the Goods and procure that the Company shall have access thereto at all times on reasonable notice;
(e) not sell assign or let the Goods or any interest therein.
(iii) In the event that payment for Goods is overdue in whole or in part or the Customer becomes bankrupt or has a receiver, liquidator or administrator appointed in respect of it's business or is otherwise shown to be insolvent, the Company may (without prejudice to its other rights) recover or resell the Goods or any of them and may enter upon the Customer's premises for that purpose.
(i) The Customer is responsible for obtaining all import licenses and indemnifies the Company for losses incurred in respect of Goods shipped without valid import licenses.
(ii) Delivery is subject to the granting of all necessary export licenses and the Company accepts no liability arising from any delay in obtaining such licenses.
(i) Delivery of the Products will be arranged by the Company on or as close as possible to the Customer's requested delivery date subject to the Company's existing priorities and schedules. The Customer will be advised of Company's estimated time or date for delivery which is an estimate only and may be cancelled or revised at the Company's option. The Products comprised in any order may be delivered and invoiced in installments, at the Company's discretion.
(ii) If the Customer fails to take delivery of the goods or fails to give the Company adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer's reasonable control or by reason of the Company's fault) then, without prejudice to any other right or remedy available to the Company, the Company may; (a) store the goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage or (b) sell the goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the contract and in addition the Customer shall indemnify the Company against all costs claims expenses (including without limitation demurrage) or damages howsoever arising as a result of the Customer's failure to take or delay in taking delivery.
The Customer shall inspect the Goods on delivery at its destination and the Company shall not be liable for any damage to or defect in the Goods or for any shortage on arrival at its destination for which it would otherwise be liable hereunder unless the Customer shall have notified the Company and the carrier within 7 days of arrival and shall have given the Company reasonable opportunity to inspect the Goods concerned.
(iii) The Company excludes all other terms conditions and warranties whether express or implied and whether arising by statute or otherwise relating to the capacity, quality, description, state or condition of the Goods or to their merchantability or fitness for the particular or any purpose for which they are or may be required and the Customer shall be taken to have satisfied itself as to the fitness of the Goods for that purpose.
(iv) The Goods are sold solely for the purpose of training.
The Company retains full ownership of all inventions, designs, copyrights and processes relevant to the Goods created by or for the Company. Any drawings, specifications or manuals issued by or on behalf of the Company are copyright and confidential and the Customer may not reproduce the same or divulge the same to any third party without the Company's prior written consent. All rights subsisting in such drawings, specifications and manuals are reserved.
If any of the Goods have been designed, manufactured or processed either wholly or in part to the Customer's specification the Customer shall indemnify the Company against all claims arising from infringement of patents, designs and copyright with respect thereto.
If the Company's ability to perform its obligations hereunder is limited, delayed or prevented in whole or in part by any reason whatsoever not reasonably within its control, including without limitation fire storm and tempest, war invasion act of foreign enemy, hostilities (whether war be declared or not), civil war, rebellion civil strife, strikes and/or Industrial disputes or any law, rule, regulation order or other actions by any public authority, transportation delays or the refusal or delay in granting any necessary export license, the Company shall be excused, discharged and released without penalty from performance of the contract to the extent that such performance is limited, delayed or prevented. In the event that the Goods or any part thereof have been delivered the Customer shall pay to the Company the proportion of the contract price appropriate to what has been delivered. In the event that nothing has been delivered and the Contract becomes impossible to perform for reasons not reasonably within the Company's control, the Company's liability shall be limited to repayment to the Customer of any relevant sums paid by him to the Company.
Neither this contract nor any of the rights or obligations hereunder shall be assigned by the Customer without the prior written consent of the Company.
Where the sales relates to more than one item it shall be a separate and severable contract in relation to each item.
The contract shall be governed and construed in all respects in accordance with the laws of United States.