ALL SALES ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:
AGREEMENT: The terms and conditions set forth herein govern all sales of products and/or services (“Products”) manufactured and sold by Neural Analytics to a purchaser of Products (a “Buyer”) regardless of whether Buyer purchases Products through the medium of a written sales agreement (a “Sales Contract”), or through written purchase orders, electronic orders, verbal or written quotations, or any other writings or communications from Neural Analytics and/or Buyer relating to the Products (collectively or individually, an “Order”). “Sales Terms” refers to these terms and conditions as amended from time to time. Neural Analytics acceptance of any Order is expressly subject to Buyer’s assent to each and all of the terms and conditions set forth in these Sales Terms. Buyer’s assent to these Sales Terms shall be conclusively presumed from Buyer’s failure to submit written objection thereto, or from Buyer’s acceptance of all or any part of the Products ordered.
ORDER OF PRECEDENCE: No addition to or modification of these terms and conditions will be binding upon Neural Analytics unless specifically agreed to by Neural Analytics in writing. If the Order or other correspondence contains terms or conditions contrary to or in addition to the terms and conditions contained in these Sales Terms, acceptance of any Order by Neural Analytics will not be construed as assent to such contrary or additional terms and conditions, or constitute a waiver by Neural Analytics of any of the terms and conditions contained herein. In case of conflict with the Order, Sales Contract or any other document, these Sales Terms will control. Any reference to the Buyer’s purchase order or any other documents by Neural Analytics will not affect or limit the applicability of the terms and conditions contained in these Sales Terms.
PRICE: Neural Analytics reserves the right to revise prices at any time without notice. Customer contract pricing is subject to the terms of the specific Order or Sales Contract in which the contract pricing is contained. Unless otherwise specified (a) all prices, quotations, shipments and deliveries by Neural Analytics are F.O.B. Origin, location as set forth in the applicable Sales Contract or Order, freight prepaid and added to the invoice; (b) all Orders accepted are subject to Neural Analytics’ price in effect at the time of shipment; and (c) all transportation and other charges are for the account of Buyer, including any increase or decrease in such charges prior to shipment. Orders are not binding upon Neural Analytics until accepted in writing by Neural Analytics. Any quotations given by Neural Analytics will be valid for the period stated on the quotation.
TAXES: Any tax which Neural Analytics may be required to pay or collect through assessment or otherwise under any existing or future law upon or with respect to the sale, purchase, delivery, transportation, storage, processing, use or consumption of any Products described herein, including without limitation, any manufacturer’s tax, occupation tax, use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other taxes, fees, interest or charges imposed by a governmental authority upon or measured by receipts from sales, shall be for the account of Buyer and shall be in addition to the price of such Products. Buyer shall promptly pay the amount thereof to Neural Analytics upon demand but may, in lieu of such payment, furnish tax exemption certificates acceptable to the appropriate taxing authorities to Neural Analytics. In the event Neural Analytics is required to pay any such taxes and other charges, Buyer shall immediately reimburse Neural Analytics therefore.
PAYMENT TERMS: Except as otherwise set forth in the applicable Sales Contract or Order, Payment terms are Net 45 Days from invoice date to the date payment is postmarked (excluding C.O.D. and Visa/MC/American Express orders). If Buyer has an open credit memo on its account, it should be used to reduce Buyer’s next payment. Buyer should note which invoices and credit memos are being used on a payment to help Neural Analytics maintain Buyer’s account accurately. Credit memos expire one year from the original date. Any discrepancy in an invoiced price and corresponding Order or Sales Contract price must be reported to Neural Analytics Customer Care within 30 days of the date of the invoice. If Buyer fails to make payments on any Order or Sales Contract between Buyer and Neural Analytics in accordance with Neural Analytics’ terms, Neural Analytics, in addition to any other remedies available to it, may at its option (a) defer further shipment until such payments are made and satisfactory credit arrangements are reestablished; or (b) cancel the unshipped balance of any Order. Any amounts that are not paid when due shall bear interest from the date payment was due until the date payment is received by Neural Analytics, at a rate of interest equal to the lower of (i) 1.5% per month or (ii) the highest rate of interest permitted under applicable law. Buyer will be responsible for all costs of collection of unpaid invoices, including reasonable attorney’s fees.
CREDIT: All Orders are subject to the approval of Neural Analytics’ Finance Department. Neural Analytics may at any time refuse to make shipment or delivery if Buyer fails to fulfill the terms and conditions of payment or fails to provide security in compliance with Neural Analytics’ credit policies. Neural Analytics policies or practices may be changed at any time. Neural Analytics may require payment in full or other security in advance. Without limiting the generality of the foregoing, if Buyer becomes the subject of a bankruptcy or other insolvency proceeding, or fails to pay Neural Analytics’ invoices as they become due, Neural Analytics reserves the right to: (a) cancel all or any part of a Sales Contract or Order; (b) modify the terms of payment prior to shipment; (c) require “Cash in Advance” terms; or (d) delay or cancel any Product shipment.
REPORTING: To the extent that any discounts and/or rebates are issued by Neural Analytics and received by Buyer with respect to Products under these Sales Terms, such discounts and/or rebates may be considered “discounts or other reductions in price” as such terms are defined under the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b). Neural Analytics and Buyer agree to use their best efforts to comply with any and all requirements imposed on sellers and buyers, respectively, under 42 U.S.C. § 1320a-7b(b)(3)(A) of the Anti-Kickback Statute and the ‘safe harbor’ regulations regarding discounts or other reductions in price set forth in 42 C.F.R. § 1001.952(h). In this regard, Buyer may have an obligation to accurately disclose the net cost actually paid by Buyer for the Products covered by these Sales Terms in accordance with applicable state or federal cost reporting requirements.
SHIPPING AND TITLE TO PRODUCTS: Unless otherwise agreed, Neural Analytics will be entitled to determine the method of shipment (including transport companies, dispatch route, packaging). Title and risk of loss shall pass to the Buyer upon delivery of the Products to the carrier.
SHIPMENT VERIFICATION: Any discrepancy in the quantity billed and the quantity received resulting from damage (concealed or otherwise), shortages, overages, or wrong Product, must be reported to Neural Analytics Customer Care within 10 days of the date a shipment is received, and failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Buyer. Neural Analytics will not provide proof of shipment delivery after 90 days. If Products are received with damage to the exterior packaging, this damage must be noted on the carrier’s bill. Any loss or shortage caused by damage in transit will be for account of Buyer. Claims for non-delivery must be reported to Neural Analytics Customer Care within 10 days from the date of invoice, failing which, Neural Analytics shall be under no liability for non-delivery.
EXPRESS LIMITED WARRANTY: Neural Analytics warrants that on the delivery date (a) the Products delivered under the Order or Sales Contract will be free from defects in material and workmanship during the Warranty Remedy Period; and (b) Neural Analytics will transfer good title to the Products to the Buyer. Notwithstanding anything herein to the contrary, all equipment or components manufactured by a party other than Neural Analytics is sold “as is” and without any warranties, express or implied. Neural Analytics does not provide any warranty for products manufactured by a third-party, and Buyer’s only recourse for defects in such products will be against the product’s original manufacturer. This express limited warranty shall be voided if the product is resold or leased to any party other than the original Buyer.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ANY OTHER WARRANTIES OF ANY KIND (WHETHER ARISING BY IMPLICATION OR BY OPERATION OF LAW) WITH RESPECT TO THE PRODUCTS. Neural Analytics HEREBY DISCLAIMS ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. IN NO EVENT SHALL NEURAL ANALYTICS BE LIABLE FOR LOSS OF USE, LOSS OF PROFITS, PUNITIVE OR OTHER CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES WHATSOEVER.
EXCLUSIVE REMEDY: The warranty remedy period for Products (excluding spare parts and refurbished or repaired parts) shall end 12 months after date of shipment, the warranty remedy period for new spare parts shall end 6 months after date of shipment and for refurbished or repaired parts shall end 90 days after date of shipment (the “Warranty Remedy Period”). If Buyer discovers that any of the Products fail to meet the warranties provided herein during the applicable Warranty Remedy Period, Buyer shall provide Neural Analytics with written notice of such nonconformity promptly after such discovery and within the applicable Warranty Remedy Period. If requested by Neural Analytics, the Buyer shall return the non-conforming Product to Neural Analytics. If Neural Analytics determines that the Products are in breach of the express limited warranty, then Neural Analytics shall, at its sole discretion, either (i) repair or replace the nonconforming portion of the Products or (ii) refund the portion of the price applicable to the nonconforming portion of Products. If any portion of the Products so repaired or replaced fails to conform to the foregoing warranty, and written notice of such nonconformity is provided to Neural Analytics promptly after discovery and within the original Warranty Remedy Period applicable to such Products or 30 days from completion of such repair or replacement, whichever is later, Neural Analytics will repair or replace such nonconforming Products. The original Warranty Remedy Period shall not otherwise be extended. SUCH REPLACEMENT OR REFUND IS THE SOLE LIABILITY OF Neural Analytics AND THE EXCLUSIVE REMEDY OF BUYER FOR ANY BREACH OF THE EXPRESS LIMITED WARRANTY. NEURAL ANALYTICS SHALL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHER THEORIES OF LAW, WITH RESPECT TO PRODUCTS SOLD OR SERVICES RENDERED BY NEURAL ANALYTICS, OR ANY UNDER¬TAKINGS, ACTS OR OMISSIONS RELATING THERETO. Without limiting the generality of the foregoing, Neural Analytics specifically disclaims any liability for property or personal injury damages, penalties, special or punitive damages, damages for lost profits or revenues, loss of use of products or any associated equipment, cost of capital, cost of substitute products, facilities or services, down time, shut down or slow down costs, or for any other types of economic loss, or for claims of Buyer’s customers or any third party for any such damages. NEURAL ANALYTICS DISCLAIMS AND SHALL NOT BE LIABLE FOR ANY AND ALL CONSEQUENTIAL, INCIDENTAL AND CONTINGENT DAMAGES WHATSOEVER. In no event shall any Products be returned, reworked or scrapped by Buyer without the express written authorization of Neural Analytics.
CONDITIONS TO EXPRESS LIMITED WARRANTY: Neural Analytics shall not be responsible for providing working access to the nonconforming Products or for providing transportation to or from any repair facility, all of which shall be at Buyer’s risk and expense. Products will not be deemed to be in breach of the express limited warranty if: (i) the non-conformity of the Products resulted from damages occurring after Neural Analytics’ delivery of the Products; (ii) the Products have been improperly stored, installed, operated, maintained, repaired or altered; (iii) the Products have been subjected to improper or excessive use, misuse, negligence or accident; (iv) the Products have been used in a manner contrary to Neural Analytics’ instructions; (v) damage is caused by liquids; (vi) the Products have failed as a result of ordinary wear and tear; or (vii) the non-conformity of the Products has not been reported to Neural Analytics in writing within the earlier to occur of 10 days after the Buyer has learned of the non-conformity of the Products or 45 days after delivery of the Products to Buyer. Without limiting the generality of the foregoing, should dampness be found in the mechanical and/or optical system upon receipt of defective Products, Neural Analytics shall not be responsible for repair or replacement of components, other than those that are replaced in the ordinary course of the repair. If Buyer alters or modifies the Products without Neural Analytics’ prior written consent, and any claims are asserted against Neural Analytics by reason of such alteration or modification, Buyer shall defend, indemnify, and hold Neural Analytics harmless against any and all damages, liabilities, expenses and costs in connection therewith or resulting therefrom.
Neural Analytics makes no warranty with respect to the Products supplied by Neural Analytics but manufactured by others, including, without limitation, Neural Analytics will assign to the Buyer any warranty and guarantee claims it has against the relevant manufacturer.
Neural Analytics does not assume any responsibility for compliance with federal, state or local laws and regulations, except as expressly set forth herein, and compliance with any laws and regulations relating to the operation or use of the Products is the sole responsibility of the Buyer.
INVENTIONS AND INFORMATION: The sale of the Products hereunder to Buyer shall in no way be deemed to confer upon Buyer any right, interest or license in any patents or patent applications or design copyrights Neural Analytics may have covering the Products. Neural Analytics retains for itself all proprietary rights in and to all designs, engineering details, and other data and materials pertaining to any products supplied by Neural Analytics and to all discoveries, inventions, patents and other proprietary rights arising out of the work done by Neural Analytics in connection with the Products or with any and all products developed by Neural Analytics as a result thereof, including the sole right to manufacture any and all such products. Buyer warrants that it will not, and will not permit or assist any other person or entity to, divulge, disclose, or in any way distribute or make use of such information, and that it will not, and will not permit or assist any other person or entity to, reverse engineer, manufacture or engage to have manufactured such products.
1. All returns must have written authorization from Neural Analytics Customer Care, 1-877- 638-7251 ext. 3. This authorization is an estimate, pending inspection by Neural Analytics of returned Products.
2. Credit will not be issued for Products returned without proper documentation.
3. Return Authorizations are valid for 30 days and Product must be received at designated Neural Analytics location within 30 days from date of issue.
4. Full credit will be given for items shipped by Neural Analytics if returned within 30 days from date of invoice.
5. Full credit, less a 25% restocking fee, will be given for all Products returned with proper documentation, subject to Neural Analytics management approval, as long as the following conditions are met:
a. All return Products must be in saleable condition and have been purchased in the last 3 months.
b. No credit will be issued if the original package integrity is broken, damaged, or if the package is defaced with stickers or markers or if the Product is within one (1) year of expiration date.
c. Only full box quantities will be accepted. Credit will not be given for Products no longer listed on www.Neural Analytics.com or for Products that have been replaced by updated versions with significant feature changes.
6. All returns are subject to Neural Analytics inspection. Neural Analytics reserves the right to destroy merchandise deemed unfit for sale, whether or not accepted for credit or exchange.
7. Returned Products deemed resalable will be valued at the original cost.
8. Returns must be shipped, prepaid to:
Neural Analytics, Inc.
2440 S Sepulveda Blvd.
Los Angeles, CA 90064
TECHNICAL ASSISTANCE: Unless otherwise expressly agreed in writing by Neural Analytics, Neural Analytics assumes no obligation or liability for any technical advice provided by Neural Analytics with respect to the use of Products furnished to Buyer, or for any results occurring as a result of the application of such advice. Buyer shall have sole responsibility for selection and specification of the Products appropriate for the end use of such Products.
INDEMNIFICATION: To the maximum extent allowed by law, Buyer shall defend and indemnify Neural Analytics and its employees and agents against all sums, costs, liabilities, losses, obligations, suits, actions, damages, penalties, fines, interest and other expenses (including investigation expenses and attorneys’ fees) that Neural Analytics may incur or be obligated to pay as a result of: (a) Buyer’s negligence, use, ownership, maintenance, transfer, transportation or disposal of the Products; (b) Buyer’s violation or alleged violation of any federal, state, county or local laws or regulation, including without limitation, the laws and regulations governing product safety labeling, packaging and labor practices; (c) modification to or alteration of any Product sold hereunder; or (d) Buyer’s breach of a Sales Contract, Order or these Sales Terms, provided that Buyer shall not indemnify Neural Analytics for claims based on Product defects proven to have been caused solely by Neural Analytics’ negligence.
Limitation on Neural Analytics’ Liability. NEITHER Neural Analytics NOR ITS AFFILIATES SHALL HAVE ANY LIABILITY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES FOR ANY REASON OR UNDER ANY THEORY OF LIABILITY WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOST PROFITS, BUSINESS INTERRUPTION, OR OTHER PECUNIARY LOSS, EVEN IF Neural Analytics OR ITS AFFILIATES HAVE BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. BUYER MAY NOT INSTITUTE ANY ACTION IN ANY FORM ARISING OUT OF ANY SALES CONTRACT, ORDER OR THESE SALES TERMS MORE THAN 12 MONTHS AFTER THE CAUSE OF ACTION HAS ARISEN. IN NO EVENT SHALL Neural Analytics’ LIABILITY UNDER ANY SALES CONTRACT OR ORDER EXCEED THE PURCHASE PRICE OF THE PRODUCTS GIVING RISE TO THE CLAIM.
FORCE MAJEURE: Neural Analytics shall not be liable for any delay in or impairment of performance resulting in whole or in part from fire, floods or other catastrophes, acts of God, strikes, lockouts or labor disruption, wars, riots or embargo delays, government allocations or priorities, raw material market conditions, shortages of transportation equipment, fuel, labor or materials, inability to procure supplies or raw materials, severe weather conditions, or any other circumstance or cause beyond the reasonable control of Neural Analytics (a “Force Majeure Event”). In the event of the occurrence of a Force Majeure event, Neural Analytics shall have the right, but not the obligation, to allocate Product among its customers and potential customers in its sole discretion.
CANCELLATION. Orders cannot be canceled or modified by Buyer except with the express written consent of Neural Analytics.
TERMINATION. Neural Analytics may terminate any Order or any part thereof as allowed by these terms. Upon such termination, Buyer agrees to waive all claims for damages, including without limitation, any loss of anticipated profits, and to accept as its sole remedy for termination the reasonable incremental costs of obtaining substitute Products of the same quantity and quality, provided such incremental costs do not exceed the Order price. Any claim for adjustment not asserted within 90 days from the date of such termination shall be deemed to have been waived by Buyer.
SETOFF; DEDUCTIONS: In no event is Buyer authorized to deduct any amounts from the amounts owed Neural Analytics unless specifically authorized in writing by Neural Analytics.
ASSIGNMENT. No part of any Order may be assigned by Buyer without prior written approval of Neural Analytics. Neural Analytics will be entitled to cancel any Order upon written notice to Buyer in the event Buyer assigns or attempts to assign such Order without Neural Analytics’ prior written consent. NOTICES. All notices must be in writing and will be deemed given only when sent by first class mail (return receipt requested), hand-delivered or sent by documented overnight delivery service to the party to whom the notice is directed, at its address indicated in the applicable Order or Sales Contract or by written notice.
ENTIRE AGREEMENT. These Sales Terms, together with the Order or Sales Contract, if any, comprise the complete and final agreement between Neural Analytics and Buyer, and supersede all prior negotiations, proposals, representations, commitments, understandings or agreements between Neural Analytics and Buyer, either written or oral, on its subject. Any other representations or warranties made by any person, including employees or other agents of Neural Analytics, that are inconsistent with these Sales Terms shall be disregarded by Buyer and are not binding upon Neural Analytics.
MODIFICATIONS. No Order, Sales Contract nor these Sales Terms may be modified or amended except in writing signed by both Neural Analytics and Buyer specifically referring to the applicable Order, Sales Contract and/or these Sales Terms. No sales representative or other agent or representative of Seller is authorized to modify or alter the Sales Terms. Failure of Neural Analytics to object to handwritten additions or modifications hereof made by Buyer (or Buyer’s agent), or to provisions of any Order or other communication from Buyer, shall not constitute amendment, alteration or modification of all or any portion of this Sales Contract.
WAIVER. Neural Analytics’ failure to insist on performance of any of the terms or conditions in these Sales Terms or to exercise any right or privilege, or Neural Analytics’ waiver of any breach of these Sales Terms shall not waive any other terms, conditions or privileges, whether of the same or similar type.
SEVERABILITY. If any clause or provision in these Sales Terms is determined to be invalid, the remaining provisions of these Sales Terms will remain in full force and effect.
CHOICE OF LAW AND VENUE. All Orders shall be governed by and interpreted in accordance with the laws of the State of California without giving effect to its choice of law provisions. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply. Manufacture, shipment and delivery are subject to any prohibition, restriction, priority allocation regulation or condition imposed by or on behalf of the United States of America or any other governmental body with appropriate jurisdiction that may prevent or interfere with fulfillment of any Order. Litigation brought to contest disputes arising under any Order or these Sales Terms shall be brought only in the state or federal courts of the State of California sitting in Los Angeles County. Any action for breach of the Sales Contract, Order or Sales Terms must be commenced not later than one year from the date on which such action accrues or be forever barred.
SURVIVAL: The terms of a Sales Contract or Order and these Sales Terms that by their nature are reasonably intended by the parties to survive its expiration or earlier termination, survive such expiration or termination.
ATTORNEYS FEES: If either party commences an action against the other to interpret or enforce the Order or these Sales Terms or as a result of a breach by the other party of the Order or these Sales Terms, the prevailing party shall be entitled to recover from the nonprevailing party reasonable attorneys’ fees, costs and expenses incurred by the prevailing party in connection with such action.
CUSTOMER SERVICE: All Orders are subject to these Sales Terms and to pricing confirmation, final acceptance and approval by Neural Analytics’ Customer Care Department by phone at 1-877-638-7251 ext. 3 or through Neural Analytics’ web store at www.NeuralAnalytics.com. For convenience, Orders are also accepted via telefax at 1-877- 638-7251.
Neural Analytics, Inc.
2440 S Sepulveda Blvd.
Los Angeles, CA 90064
Customer Service Department: Telephone: 1-877-638-7251 ext. 3
Customer Service Department: Telefax: 1-877-638-7251