Terms of Sale:

These terms and conditions (“Terms”) shall govern all orders and acceptances (“Order(s)”) of goods (“Goods”) sold from time to time by A.M. Bickford, Inc. (“Seller”) to its customers (“Buyer(s)”).  These Terms and any accompanying purchase order (collectively, this “Agreement”) comprise the entire agreement between the parties, and shall supersede any inconsistent terms contained in any order received by Seller unless specifically agreed to in writing by the Seller, and cancel, replace, and supersede all prior or contemporaneous oral or written correspondence, negotiations, understandings, and agreements between the parties with respect thereto.

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Payment: Unless otherwise specified by Seller, payment is due within 30 days of date of invoice.  All overdue accounts are subject to a 1½% per month service charge on the unpaid balance.

 

Prices:

All prices are F.O.B. our facility. Shipping and insurance charges as well as applicable taxes will be added to the invoice. Seller reserves the right to change prices without notice.

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Shipping: Orders are shipped daily from our warehouse (the “Delivery Point”) via UPS.  Our cut off time for orders to be shipped the same day placed on phone, fax, email, or webstore is 1:30pm EST.  If the order is urgent and/or you need to upgrade shipping please call 800-795-3062. Third party shipping account numbers are accepted.

 

Delivery:

The Goods will be delivered within a reasonable time after the receipt of Buyer's purchase order, subject to availability of finished Goods. Seller shall not be liable for any delays, loss, stolen items, or damage in transit. 

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Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order. 

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If for any reason Buyer fails to accept delivery of any of the Goods after such Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage, and insurance). 

 

Shipping Charges:

We maintain ongoing relationships with freight carrier (UPS) in order to offer our customers competitive shipping rates. For an estimate of shipping charges, please contact us at 1-800-795-3062. All shipping charges are provided for informational purposes only and are subject to modification at any time without prior notice.

 

Quantity:

If Seller delivers to Buyer a quantity of Goods of up to five percent (5%) more or less than the quantity set forth in the purchase order, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the purchase order adjusted pro rata.

 

Title and Risk of Loss:

Title and risk of loss pass to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the New York Uniform Commercial Code.

 

Limited Warranty:

Major equipment is covered by individual warranties. Other merchandise is guaranteed to be free from defects in workmanship or material for a period of 30 days. Some exceptions apply to rubber goods and plastic goods. (See “Returns” below.)

In cases where a warranty card is included with new equipment, the card must be filled out by the customer and returned to Seller in order for the warranty to be registered.

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EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

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Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Goods. Third-Party Products are not covered by the warranty in this Section. For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

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The Seller shall not be liable for a breach of the warranty set forth in this Section unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within five (5) business days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective.

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The Seller shall not be liable for a breach of the warranty set forth in this Section if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) Buyer fails to follow Seller’s oral or written instructions, or the installation or operation manual applicable for each Good, regarding the storage, installation, commissioning, use, or maintenance of the Goods; (iii) Buyer alters or repairs such Goods without the prior written consent of Seller; (iv) damage due to misuse, abuse, negligence, alteration, accident, freight damage, or tampering by any party other than Seller; (v) the Goods are of consumable nature such as rubber or plastic goods; (vi) the Goods, including accessories and parts, are not manufactured by Seller; (vii) the Goods are a specially manufactured product; (viii) the damage to the Goods is caused by animals; changes are made to the Goods (including changes by Seller’s authorized dealers) that are not previously authorized by Seller in writing; and (ix) the Goods are manufactured by others and resold by Seller (including vaporizers and medical gas products).

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Subject to the provisions in this Section above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller's expense, return such Goods to Seller.

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THE REMEDIES SET FORTH IN THE IMMEDIATE PRECEDING PARAGRAPH SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION. 

 

Inspection and Rejection of Nonconforming Goods:

Buyer shall inspect the Goods within thirty (30) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents. 

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If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility located at 12318 Big Tree Rd Wales Center, NY 14169. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer's shipment of Nonconforming Goods, ship to Buyer, at Buyer's expense and risk of loss, the replaced Goods to the Delivery Point. 

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Buyer acknowledges and agrees that the remedies set forth in this Section are Buyer’s exclusive remedies for the delivery of Nonconforming Goods.

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Returns Policies:

No merchandise may be returned for credit without prior written approval or after the Inspection Period.  

If a Good was purchased through a distributor, that distributor must be contacted first prior to contacting Seller about a return or refund. 

 

Returns are subject to a 25% handling charge which will be deducted from the original purchase price. Exceptions are those items acknowledged by Seller to be defective, or shipped in error.

 

Rubber and plastic Goods are guaranteed against defects at the time of delivery and may not be returned for credit if used or if sterile packaging is opened.  Goods that have been damaged by the Buyer can only be credited if repairs are possible. Repair charges will be paid by the Buyer as well as a 25% handling fee.  Warranty returns must have documentation that the item was purchased within the stated warranty period. If there is no defect in the item, there will be a 25% handling fee deducted from the purchase price.

 

 

Repairs:

When a customer experiences a problem with the operation of equipment, it is suggested that he/she contacts our service department via our toll free number. To assist a customer in describing perceived malfunctions in the anesthesia machine, see page 20 of our catalog for parts diagram. In some cases, assistance can be given on the phone. If this is not the case, then an instrument may be sent in for repair.  Seller realizes the importance of customers’ anesthesia equipment to the operation of their practice and the health of their patients. When equipment is received for repair, that equipment is given priority status, repaired, and returned in as little time as possible. When a repair is being sent in, it is extremely helpful if we are notified via our toll free number about the problem so we can be alerted and prepared.

Limitation of Liability:

 

IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

 

IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID FROM BUYER TO SELLER FOR THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY.

 

The limitation of liability set forth in this Section above shall not apply to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions. 

 

Confidential Information:

All non-public, confidential, or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.

 

Force Majeure:

Seller shall not be liable for any damage caused or loss of profit of the Buyer arising from a failure by Seller to comply with its obligations under an Order where that failure is attributable to circumstances beyond the reasonable control of Seller which include, but are not limited to, the following: acts of God; fire, flood or storm; epidemic, pandemic, government order, law, or actions; riot, public disorder, or any terrorist act; acts of the Buyer, inability to obtain labor or material to meet the specifications of the Buyer; strike; transportation failure; any act of war (whether declared or not) or any governmental, military, or other similar entity, exercising de facto sovereignty for the time being in any relevant jurisdiction, including any embargo or restriction upon shipping or transport.

 

Default:

The Buyer shall be deemed to be in default of its obligations to Seller, if: (a) Buyer defaults in the payment of any amount owed by or to Seller or defaults in the observance or performance of anything required under an Order and these terms and conditions; (b) any formal or informal proceedings for the dissolution of, liquidation of, or winding up of, the affairs by the Buyer is instituted by, or against, the Buyer, or where a resolution is passed or any other act undertaken for the winding up of the Buyer; or (c) Buyer is adjudged, bankrupt, or becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings related to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.  Upon any such default, in addition to any other remedies it may have at law or in equity, Seller may cancel any other outstanding Order from the Buyer, refuse to make deliveries, and declare all amounts owing to Seller to be immediately due and payable.

 

Compliance with Law:

Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.  Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance.  Seller may terminate this Agreement if any governmental authority imposes tariffs, antidumping, or countervailing duties or any other penalties on the Goods.

 

Governing Law:  

These terms and conditions shall be governed by the law of the State of New York and the federal laws of United States of America applicable therein without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York.

 

Severability:

If any provision of these terms and conditions is determined by a court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable all of the terms and conditions, but rather these terms and conditions shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of the parties shall be construed and enforced accordingly.

 

Assignment:

The Buyer shall not transfer or otherwise assign its rights and obligations under an Order and these terms and conditions, in whole or in part, without the prior written consent of Seller, which consent may be arbitrarily withheld.  Any purported assignment or transfer without Seller’s consent shall constitute a breach by Buyer of its obligations to Seller and shall entitle Seller, in addition to any other remedies it may have it at law or at equity, to terminate any and all outstanding Orders and claim for any damages thereby suffered or incurred.

 

Waiver:

No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller.  The failure of Seller to insist upon the Buyer strict performance in any of the terms and conditions hereunder or a delay by Seller in exercising any of its remedies hereunder shall not constitute a waiver of these terms and conditions or a waiver of any default or any remedy.

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Amendment and Modification:

These Terms may only be amended or modified in writing stating specifically that these Terms are amended and signed by an authorized representative of each party.

 

Entire Agreement:

The parties confirm that there are no representations, warranties, terms, conditions, collateral agreements, or understandings between the parties other than as expressly set forth in this Agreement.