Web Site Use Agreement
1. Eligibility and Registration.
Access to Web site procurement services (the "Service") is available only to businesses and their authorized employees, agents and/or contractors (collectively, "Subscribers") who register with Distributor by submitting a Web site Registration Form and is limited to those Subscribers who are authorized to form legally binding contracts under applicable law on behalf of the businesses or organizations they represent. Distributor reserves the right to refuse Service to anyone or any entity at any time, in our sole discretion. Subscribers shall provide current, complete and accurate information, and then update the information (including credit card information, if applicable) as required to keep the registration information as submitted via the Registration Form current, complete and accurate. Distributor will evaluate the submitted Registration Form and will notify Subscribers in a timely manner regarding acceptance or rejection. Distributor may reject a submitted Registration Form at its sole discretion for any reason.
2. Password and Security.
You are solely responsible for maintaining the confidentiality of any Subscriber name and password and are fully responsible for all activities that occur under your password or account. You agree to (i) immediately notify Distributor of any unauthorized use of your password or account or any other breach of security, and (ii) ensure that you exit from your account at the end of each session. Distributor cannot and will not be liable for any loss or damage arising from your failure to comply with this provision.
3. Limited Use License.
4. Web Site Intellectual Property.
5. Web Site Integrity.
We do not guarantee continuous, uninterrupted or secure access to our Service, and operation of the Web site may be interfered with by numerous factors outside of our reasonable control. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Web site, or our Service. You may not take any action that imposes an unreasonable or disproportionately large load on our infrastructure. You may not disclose or share your password to any third parties or use your password for any unauthorized purpose.
6. Data Security.
This site uses Secure Sockets Layer encryption in the transmission of sensitive information. Distributor maintains a secured area on this Web site for transmission of Subscriber registration and financial data, and stores this data in a private database. Because encryption slows down the response time of Web pages, some areas of the site are not secured. Nevertheless, Distributor endeavors to ensure that all pages transmitting personal or financial information are encrypted. Please inform us immediately if any such page is not encrypted. Please refer to your browser's online help for further information on determining whether a specific page you are viewing is encrypted. We utilize security measures such as firewalls, passwords and other mechanisms on our computer systems housing all registration and financial data.
7. Breach of Use.
8. Disclaimer of Warranties.
THE WEB SITE, SERVICE AND ALL INFORMATION MADE AVAILABLE, ARE PROVIDED ON AN "AS IS", "WHERE IS", "AS AVAILABLE" BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY OF INFORMATIONAL CONTENT. DISTRIBUTOR AND ITS SUBSIDIARIES AND AFFILIATES DO NOT WARRANT THAT THE WEB SITE, THE SERVICES OR THE FUNCTIONS, FEATURES OR INFORMATION CONTAINED THEREIN OR ON ITS WEB SITE, INCLUDING WITHOUT LIMITATION ANY THIRD-PARTY SOFTWARE, PRODUCTS, ITEMS OR OTHER MATERIALS USED IN CONNECTION WITH THE SERVICES, WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. DISTRIBUTOR AND ITS SUBSIDIARIES AND AFFILIATES MAKE NO WARRANTY THAT THE WEB SITE OR THE SERVICE WILL MEET SUBSCRIBERS' REQUIREMENTS. IF SUBSCRIBER IS DISSATISFIED WITH THE WEB SITE OR THE SERVICE, ITS SOLE REMEDY IS TO DISCONTINUE USING THE WEB SITE OR THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY SUBSCRIBER FROM DISTRIBUTOR AND ITS SUBSIDIARIES AND AFFILIATES OR THROUGH USE OF THE WEB SITE OR THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. DISTRIBUTOR AND ITS SUBSIDIARIES AND AFFILIATES EXPRESSLY DISCLAIM ANY RESPONSIBILITY FOR ANY MISREPRESENTATIONS OR BREACHES COMMITTED BY ANY SUBSCRIBER. ANY INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEB SITE OR THE SERVICE IS DONE AT THE SUBSCRIBER'S OWN DISCRETION AND RISK. SUBSCRIBER SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOADING OR USE OF THE INFORMATION. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY SUBSCRIBER FROM DISTRIBUTOR OR ANY OF ITS SUBSIDIARIES OR AFFILIATES, OR THROUGH OR FROM THE WEB SITE OR THE SERVICE, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
9. Limitation of Liability.
SUBSCRIBER EXPRESSLY UNDERSTANDS AND AGREES THAT DISTRIBUTOR AND ITS SUBSIDIARIES AND AFFILIATES (INCLUDING SUPPLIERS) SHALL NOT BE LIABLE TO SUBSCRIBER OR ANY OTHER PERSON OR ENTITY FOR ANY THIRD-PARTY CLAIMS AGAINST SUBSCRIBER OR FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL OR USE, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF DISTRIBUTOR OR ANY OF ITS SUBSIDIARIES OR AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE WEB SITE, ANY SERVICES OR INFORMATION, INCLUDING: (i) THE USE OR THE INABILITY TO USE THE WEB SITE, INFORMATION OR SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE ITEMS AND SERVICES RESULTING FROM ANY ITEMS, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR COMMUNICATIONS RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE WEB SITE OR THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY COMMUNICATIONS OR INFORMATION; (iv) INFORMATION OR CONDUCT OF ANY THIRD PARTY WITH RESPECT TO THE WEB SITE OR THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE WEB SITE OR THE SERVICE PROVIDED. IN NO EVENT SHALL THE TOTAL LIABILITY OF DISTRIBUTOR AND ITS SUBSIDIARIES AND AFFILIATES TO A SUBSCRIBER FOR ALL DAMAGES, LOSSES, CLAIMS AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THIS AGREEMENT OR THE USE OF THE SERVICE OR THE WEB SITE EXCEED, IN THE AGGREGATE, ONE-HUNDRED DOLLARS ($100.00) OR, IF THE CLAIM IS RELATED TO THE PURCHASE OF A PRODUCT, THE AMOUNT PAID BY SUBSCRIBER FOR THE APPLICABLE PRODUCT. THE FOREGOING LIMITATION SHALL APPLY AND SURVIVE NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. THESE LIMITATIONS APPLY AMONG OTHER THINGS TO ANY THIRD-PARTY CLAIMS AGAINST SUBSCRIBER.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Order Placement and Charges.
Registering on our Web site is free to eligible Subscribers. Subscribers may purchase any of the Products provided on the Web site at the prices designated on the Web site by selecting Products for purchase and completing our electronic order form (an "Order"). Distributor charges Subscribers according to the terms of your written contract with Distributor, or, in the absence of any such contract, according to Distributor's practices from time to time for shipping and handling costs and applicable sales taxes. All charges for Products ordered are displayed to the Subscriber on the pending Order prior to placement of the Order by Subscriber. Distributor expressly disclaims any representation or warranty concerning "most favored customer" pricing in connection with the sale of any Products by Distributor to Subscribers.
Subscriber hereby acknowledges and agrees that all Products ordered on the Web site shall be shipped by First Coast Medical and Dental Supply LLC or drop shipped by the applicable manufacturer or other supplier using our authorized carrier or a carrier authorized by the applicable manufacturer or supplier (the "Designated Shipper") and delivered to Subscriber's designated delivery location, FOB Destination. Distributor and its suppliers cannot ship to post office boxes.
Delivery Subject to Product Availability.
Although Distributor has attempted to ensure that the inventory availability of Products is properly designated on the Web site for many Products, Subscriber acknowledges that from time-to-time even those Products designated as in inventory will not be available at time of shipment. If an Order cannot be shipped in its entirety by the close of business the day following placement of the Order, Distributor will promptly notify Subscriber, and provide an estimated shipment date for those items which are unavailable. Distributor reserves the right to substitute alternate products with equivalent specifications for those ordered. Subscriber shall have the right to return any substituted products at no charge by following the return goods policy as stated herein. Distributor further reserves the right to make delivery in installments for those items of an Order, which are available for immediate shipment, and to bill Subscriber separately for any such items delivered. Subscriber may cancel those items on the Order that are subject to the delay by notice to Distributor within 48 hours of receipt of the delay notification, provided that such Products have not yet been shipped. If Distributor receives no such notice of cancellation, the estimated product availability and shipment date will be deemed accepted. The foregoing sets forth Distributor's entire obligation with regard to Product availability and shipment delays. Distributor shall not be liable for any late shipment or any failure to ship any Product(s).
Subscriber shall make available a suitable place for equipment installation within its facilities in accordance with applicable installation specifications and procedures. Subscriber shall furnish all labor required to place the Products in the desired location. Distributor or the manufacturer, as applicable, shall install the Products in accordance with their customary procedures.
Immediately upon receipt of Products shipped hereunder, Subscriber shall inspect the Products and notify Distributor in writing of any claims for order or shipping errors, shortages, defects or damages and shall hold any such goods for Distributor's written instructions concerning disposition. If Subscriber fails to notify Distributor within five (5) days after receipt of Products, the Products shall conclusively be deemed to conform to the terms provided herein and shall be irrevocably accepted by Subscriber.
Payment for Products Ordered.
Distributor shall automatically charge Subscriber's account for all Orders. In the event Subscriber does not have an account with a chargeable balance adequate to cover the Order amount, Distributor shall charge the Order to the credit card account authorized by Subscriber. The amount of payment due shall be that amount reflected in each Order at time of Order placement by Subscriber, comprised of the price of Products ordered at the time of Order placement, applicable shipping charges, and applicable taxes reflected in the Order. Unless otherwise agreed to by the Distributor in a written contract with Subscriber, payment shall be due promptly upon the provision of ordered Products to the Designated Shipper at Supplier's shipping point. Distributor reserves the right to collect interest at a rate equal to the highest applicable lawful interest rate on invoiced amounts not paid within thirty (30) days of invoice date, with interest to accrue monthly until full payment is received. All payments will be made in U.S. Dollars.
Incomplete Transactions and Cancellations of Orders.
Termination Prior to Shipment.
Subscriber may cancel an order prior to pickup by Designated Shipper at Supplier's shipping point. In such case, no payment will be due Distributor.
Termination Subsequent to Shipment and Prior to Acceptance.
Subsequent to pickup by the Designated Shipper, but prior to Acceptance of Products, as provided above, Subscriber may cancel an Order by contacting Distributor within the five (5) day Acceptance Period provided above. Distributor will provide Subscriber with disposition instructions, and may charge the Subscriber for shipping expenses and restocking fees.
Returns After Acceptance.
After the Acceptance Period has expired, Product returns shall be governed by the warranty and return policies set forth below.
All returns, replacements, technical services and support shall be handled by Distributor's customer service organization as follows: Products described below may be returned to Distributor within 30 days for replacement or adjustment. To assure prompt handling, Subscriber must obtain a Return Goods Authorization Number ("RGA Number") from Distributor and reference this number on return shipping documents. Returns made without the RGA Number will be returned to Subscriber, freight collect. Distributor reserves the right to reverse any credit issued to Subscriber: (i) for any Product not returned after authorization and requested by Distributor; or, (ii) if, upon return, such Product is determined by Distributor not to be defective. Distributor will grant full credit for: (i) Products not supplied in accordance with Subscriber's orders; and, (ii) Products which are defective at the time of receipt by the Subscriber. Distributor will grant partial credit for Products ordered in error, with the exceptions noted below. Product returns for Products ordered in error are subject to a 15% restocking charge plus any applicable charges for necessary inspection, reworking or refurbishing, or for items not normally cataloged by Distributor. Hazardous materials authorized for return must be packed, labeled and shipped in accordance with DOT regulations governing transportation of hazardous materials and any other applicable requirements. Distributor will not grant credit for: (i) Products which have been discontinued; (ii) Products which are personalized or customized; (iii) Non-Distributor line products supplied to Subscriber as an accommodation, including, without limitation, third party purchases; (iv) Products not purchased from Distributor; (v) Refrigerated or temperature controlled Products; (vi) Products which are outdated, shelf-worn, used or defaced and, therefore, unsuitable for return to stock and resale as new;, (vii) reagents, diagnostics, or chemicals which have been opened; and (viii) Products that have been shipped outside the United States.
Product Warranty and Disclaimer.
Orders placed for Products on this Web site are subject only to the relevant manufacturer's standard commercial warranty terms in effect at the time of Order placement by Subscriber, which warranty terms shall be made available to Subscriber to the fullest extent possible through Distributor. We warrant only that the Products delivered shall conform substantially to the description of such Products as provided on our Web site. THIS WARRANTY IS EXCLUSIVE AND WE MAKE NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. Your exclusive remedy against Distributor and any Supplier with respect to Products proved to our satisfaction to be defective or nonconforming shall be the replacement of such Product without charge or refund of the purchase price, upon the return of such Product in accordance with our instructions prior to Acceptance. IN NO EVENT SHALL DISTRIBUTOR, DISTRIBUTOR'S SUBSIDIARIES OR AFFILIATES, OR ANY SUPPLIER BE LIABLE UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS), EVEN IF WE OR ANY OF OUR SUBSIDIARIES, AFFILIATES OR SUPPLIERS HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. IF WE DELIVER CUSTOM GOODS FOR YOU BASED ON INSTRUCTIONS, SPECIFICATIONS, OR OTHER DIRECTIONS YOU PROVIDE TO US, DISTRIBUTOR, OUR SUBSIDIARIES, AFFILIATES AND SUPPLIERS SHALL NOT BE LIABLE FOR THE LACK OF SUFFICIENCY, FITNESS FOR A PARTICULAR PURPOSE OR QUALITY OF THE GOODS TO THE EXTENT ATTRIBUTABLE TO SUCH INSTRUCTIONS, SPECIFICATIONS, OR OTHER DIRECTIONS.
Intellectual Property Rights in Products.
If the Products include computer programs ("Software"), the "sale" of such Software shall not constitute a sale or transfer of any proprietary rights in or to the Software but rather shall only constitute the right and license to use the Software in accordance with applicable specifications, instructions and license terms and conditions of the licensor.
We warrant to you that we are authorized to sell the Products on our Web site. If any claim is made against you or us for infringement of any patent, trademark, or copyright ("Intellectual Property") rights of any third party arising from our sale to you of Products on our Web site, we shall assume the defense of any ensuing litigation and conduct all negotiations for settlement of such claims and will bear the costs of any payment of such claims and will bear the costs of any payment made in settlement or resulting from an award; provided that you shall give us prompt notice in writing of any such claim being made or action threatened or brought against you, shall make no admission of liability or take any other action in connection with such matter and shall permit us to defend such claim and shall give all reasonable information, cooperation and assistance to us in relation thereto. The foregoing provisions describe our entire liability to you and your exclusive remedies against us in connection with claims made against you based on or resulting from such infringement of Intellectual Property rights of third parties. If any claim is made against us for infringement of Intellectual Property rights of any third party as a result of your use of Products purchased on our Web site, you shall indemnify us, defend us, and hold us harmless from and against any and all losses, damages, liabilities and expenses, including reasonable attorneys' fees and other costs of defending any action, that we may incur as a result thereof. Furthermore, you agree to fully cooperate with us in the investigation and determination of the facts relating to any such claims, and shall make available to us all statements, reports and tests made by you or made available to you by others relating thereto.
Authorized Use of Products.
Products sold on our Web site are intended solely for the use(s) specified by the manufacturer and are not to be used for any other purposes including, but not limited to, unauthorized commercial purposes. You warrant and represent that you will properly test, use, and, to the extent authorized, manufacture and market any final articles made from our Products in accordance with the practices of a reasonable person who is an expert in the field, and in strict compliance with all applicable national, state and local laws and regulations. Subscriber acknowledges and understands that the purchase of Products on our Web site only conveys to Subscriber the non-transferable right for only the Subscriber to use the Products purchased in compliance with the applicable manufacturer's Published Restricted User Statement, Limited User Statement, Limited License, if any. All such statements or licenses are incorporated by reference herein and in any Order as if set forth therein in their entirety. Subscriber is solely responsible for conducting any research necessary to learn the hazards involved for any of its intended uses of the Products purchased on our Web site and to properly warn your customers, employees and other personnel who may be exposed to such Products of any risks involved in using or handling the Products.
Indemnity for Use of Products.
Subscriber agrees at its own cost and expense to indemnify Distributor and its subsidiaries and affiliates (including but not limited to its Suppliers and including the respective officers, directors, shareholders, employees, agents and representatives of the foregoing collectively called "us" in this Section 22), defend us and hold us harmless from and against any and all losses, damages, liabilities and expenses (including reasonable attorney fees and other similar costs of defending any action) that we may incur as a result of any claim of negligence, breach of implied warranty, strict liability in tort, or other theory of law, relating to actual or alleged actions or omissions by you, your officers, agents or employees, your successors and assigns, or your customers, whether direct or indirect, in connection with the use of any Products sold to you on our Web site either as a stand-alone Product or as a component part or raw material or consumable used to manufacture a product, or by reason of your breach of or failure to perform any of your obligations hereunder. You shall promptly notify us of your receipt of knowledge of any incident involving Products sold hereto resulting in personal injury or damage to property, and you shall fully cooperate with us in the investigation and determination of the cause of such incident and shall make available to us all related statements, reports and tests made by you or made available to you by others.
General Compliance with Applicable Laws.
You shall comply with all applicable laws, statutes, ordinances and regulations in effect from time to time regarding your use of the Service and your purchase and use of Products, including, but not limited to, compliance with U.S. export control laws, including the deemed export rule and any restrictions on re-export.
You represent and warrant that all Products ordered by you are intended for delivery within the United States and that no Products will be exported or used for any purposes prohibited by any relevant United States export law or regulation. If so requested by Distributor, you will provide documentation satisfactory to verify delivery to the final destination.
Purchases for the U.S. Government.
Medicare/Medicaid Reporting Requirements.
The performance of Distributor of any covenant or obligation on its part to be performed under any agreement with Subscriber shall be excused by floods, strikes, or other labor disturbances, riots, fires, accidents, wars, embargoes, delays of carriers, failure of power, or of regular sources of supply, acts, injunctions, or restraints of government, or any other cause preventing such performance, beyond Distributor's reasonable control.
This Agreement may not be assigned or otherwise transferred by Subscriber without the express, written consent of Distributor.
Except as explicitly stated otherwise, any notices between you and First Coast Medical and Dental Supply LLC shall be sent via e-mail to First Coast Medical and Dental Supply LLC (in the case of Distributor) or to the e-mail address you provide to Distributor during the registration process (in your case), or such other address as the party shall specify. Notice shall be deemed given 24 hours after an e-mail is sent, unless the sending party is notified that the e-mail address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to Distributor during the registration process. In such case, notice shall be deemed given three (3) days after the date of mailing.
Applicable Law and Venue.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA, WITHOUT REGARD TO CONFLICT OF LAWS PROVISIONS. SOLE AND EXCLUSIVE JURISDICTION FOR ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE AN APPROPRIATE STATE OR FEDERAL COURT LOCATED IN THE STATE OF FLORIDA. You agree that any cause of action you may have with respect to your use of the Web site, the Service, or your purchase of Products on the Web site must be commenced within one (1) year after the claim or cause of action arises. The parties agree that the provisions of the 1980 United Nations Convention on Contracts for the International Sale of Goods shall not apply.
If for any reason a court of competent jurisdiction finds any provision of the Agreement, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the Agreement. The remainder of the Agreement shall be valid and enforceable to the maximum extent possible.
This Agreement and associated documents identified herein constitute the entire agreement between Distributor and you with respect to your use of the Web site, the Service, and your purchase of Products hereunder, except as the foregoing (i) may be amended from time to time by Distributor as provided for above, or (ii) as related to your purchase of Products, may be superseded by any express conflicting terms or supplemented by any express additional terms in a separate written contract signed by authorized representatives of Distributor and Subscriber.