Terms & Conditions

These Terms and Conditions of Sale (“Terms”) apply to all product, equipment, or system sales arrangements between Probo Medical (together with its affiliates "Seller") and customer, distributor, end-user or other purchaser as listed on Seller's order acknowledgment or sales quote ("Customer").

1. By acceptance of any products or services from Seller, Customer accepts and agrees to be bound by these Terms and agrees that, unless otherwise agreed in a separate agreement signed by Customer and an authorized representative of Seller, these Terms, together with Seller's order acknowledgment or sales quote, constitute the entire agreement ("Purchase Agreement" or “Agreement”), and supersede all other communications and documentation, of the parties with respect to the subject matter hereof. Customer's acceptance of any product or service shall be deemed a waiver of, and Seller hereby expressly rejects, any different or additional terms, preprinted or otherwise, in any purchase order or other documentation furnished by Customer, whether before or after delivery of the applicable product or service. References in this Agreement to "product,” “equipment,” or “system” means the equipment purchased by Customer as identified in a sales quote (“Equipment” or “product”) and references to "service(s)" means any warranty or installation services provided by Seller to Customer.
2. Refurbished Equipment. Customer acknowledges that the products may be previously owned and may have received mechanical, electrical and/or cosmetic reconditioning. Customer shall be deemed to have accepted any nonconforming products unless Customer notifies Seller of such nonconformity within seventy-two (72) hours of delivery.
3. Unavailable Products. Customer acknowledges that Seller may quote the same product simultaneously to several customers and that all sales are subject to product availability at the time of Customer's acceptance of a quote. If any product becomes unavailable before Customer places an order, Seller will attempt to identify a substitute product to meet Customer's needs or, if a substitute product is not available, Seller will cancel Customer's order and refund any deposit received. This will be Customer's sole remedy with respect to any unavailable product.
4. All prices published or quoted by Seller may be changed from time to time without notice. All prices for any Equipment or services will be as specified by Seller in its order acknowledgment or quote to Customer. If no price has been specified or quoted, the price will be Seller's list price in effect at the time of shipment. Quoted prices are based on the assumption that orders of multiple products will be shipped at one time and the shipping date will be no more than thirty (30) days after the date of the quote. Failure to make timely payment for any Equipment or Service shall constitute a material breach of the Agreement, for which (in addition to other available remedies) Seller may suspend performance under the current Agreement until all past due amounts are brought current. In the event of a breach of this Agreement, interest shall accrue on all past-due amounts at a rate equal to the lesser of 1.5% per month or the maximum rate permitted by applicable law. Customer shall be responsible for Seller's costs (including but not limited to attorney fees and court costs) relating to collection of past due amounts. Customer shall not withhold payment of any amounts due and payable by reason of set-off of any claim or dispute with Seller.
5. Trade-In. If Customer is trading-in any full imaging system ("Trade-In") as part of an equipment sale, by providing such Trade-In, Customer represents, warrants and agrees that: (i) Customer has good and marketable title to such Trade-In, free and clear of all liens; (ii) Title to the Trade-In shall pass from Customer to Seller upon Seller's receipt of the Trade-In; (iii) Customer has removed or de-identified all Protected Health Information ("PHI") from the Trade-In prior to its delivery to Seller and, to the extent Customer has not done so, Customer agrees to reimburse Seller for any out-of-pocket costs incurred by Seller to remove or de-identify PHI from the Trade-In; (iv) if the condition of the Trade-In is not substantially the same when Seller receives the Trade-In as it was when Seller quoted the Trade-In value, or if Seller does not receive such Trade-In within ten (10) business days of Customer's receipt of the product for which the Trade-In was traded, Seller may reduce the price quoted for such Trade-In or cancel the Trade-In and Customer will pay the adjustment amount within thirty (30) days of receipt of invoice; (v) Trade-In does not contain any material that infringes any third-party intellectual property rights or that was obtained by gaining unauthorized access to any third-party materials or network or by circumventing any third-party security measures; and (vi) Trade- In is free from stored or transmissible malicious code, including code, files, scripts, agents or programs intended to do harm, including for example, viruses, worms, time bombs and Trojan horses.
6. Order Cancellation or Modification. In the event of cancellation or alteration by Customer of any purchase order, Customer shall pay to Seller: (i) the contract price for any Equipment which shall have been completed and/or shipped prior to receipt of notice of cancellation or alteration; and/or (ii) any costs incurred by Seller in connection with any incomplete portion of the purchase order, plus 20% of such costs as partial liquidated damages. Such costs shall include any cancellation charges, overhead and costs of material in process of purchase for processing of the order.
7. Seller may provide (or may have an authorized third party provide) Equipment installation assistance for a separate fee, upon request. Seller will not be responsible for (and Customer hereby releases Seller from) any claims or liability arising out of any such third party's services.
8. Unless otherwise specified, the products shall be delivered EXW (Incoterms 2010) Seller's facility, and all prices are quoted on this basis. Unless otherwise specified, all shipping, insurance, brokerage, license fees, customs, duties, VAT, GST, export and import clearance costs and documentation and other such charges shall be paid by Customer. All stated delivery dates are approximate. If Customer fails to schedule delivery within three (3) months of placing an order, Seller may cancel Customer's order, in which case Customer will forfeit (and Seller will retain) any deposit or pre-paid funds. If Customer requests that delivery be postponed or delayed after the ordered Equipment is in the process of being procured by Seller or is ready for delivery, an additional charge of one percent (1%) of the total price shall be assessed for each additional month or part thereof that delivery is postponed to cover storage costs of Seller.
9. Title and Risk of Loss. Title to products passes to Customer upon delivery at the point of shipment. Customer is responsible for arranging and paying for insurance against property damage or loss in transit. Seller retains, until Customer performs all of its obligations hereunder, a security interest and right of title in all products. Customer agrees, upon demand by Seller, to promptly execute any security agreement, financing statement, application, registration or other documents necessary and to take any other action deemed necessary or desirable by Seller in order to evidence or perfect Seller's security interest. Customer agrees to keep Equipment in good order and repair, and to not attempt to transfer an interest in the products, until the purchase price has been paid in full.
10. Good Parts/Return Credits/Restock Fees. The following rates apply if a part purchased by Customer in an imaging part sale transaction is returned in the same condition in which it was sent, in the sole discretion of Seller. If the part is returned and found to be defective or tampered with, return credit will not apply. Restock rates vary, based on the following conditions: (i) Parts returned within 15 days, 75% return credit (25% restock fee); (ii) Any parts returned within 16-45 days may qualify for a 65% return credit (35% restock fee); and (iii) Any parts returned after 45 days shall not qualify for return credit.
11. DOA Parts. Dead on arrival (“DOA”) imaging parts must be reported within three (3) days of receiving the part(s). Damage in shipping must be reported on the delivery ticket. The part must be received back by Seller within seven (7) days of receipt of the part to be eligible for credit. The reference numbers (waybill and invoice/packing list) must appear on the box or be with the shipment. The part must be received unaltered. Parts that are tampered with, in the sole discretion of Seller, will not be credited. The Exchange/Returns Survey must be completed with details describing the failure of the part(s) in order to be eligible for full credit. Upon inspection and testing, if the failure is verified, full credit will be issued.
12. Exchange Parts. If an imaging part sale transaction with Seller was made on an exchange basis, then a qualifying exchange part is required to be returned to Seller. To be a “qualifying part,” it must be complete with all components, and of the same part number as the part(s) sold, unless otherwise approved by Seller. All exchange parts are subject to review, and additional billing may occur for parts that do not meet the set criteria. If the exchange received is deemed not to be a qualifying exchange, in the sole discretion of Seller, the full price of the part shall be billed to the Customer. The non-qualifying part may be returned at the Customer’s request and expense, or it will become the property of Seller. All exchange parts must be received by Seller within thirty (30) days, or the full price will be billed to the Customer. By default, and unless otherwise agreed, the full price shall be equal to two times the exchange price.
13. Procedures for Returns. All exchanges and returns should be sent to Seller. All returns are to be packed properly and insured. Shipping and insurance costs are the responsibility of the customer except in the case of DOA Parts. Customer is responsible for all insurance claims on return or exchange parts that are damaged in shipping. If Customer chooses not to insure and damage occurs during shipment, then warranty credit or replacements may not be issued. Special crates or packages must be returned to avoid additional charges.
14. Credits. All credits received will be applied to Customer’s account unless otherwise requested. If an unpaid balance exists on the account, any credits received will be applied as payment towards this balance. If the above conditions are not met, then credit may not be issued or may be delayed.
15. Seller warrants that, in normal use, the products will be free from defects in material and workmanship for the term specified in this Agreement. Seller assumes no responsibility for any loss or damage resulting from the handling or use of the products by the Customer. SELLER MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN THIS SECTION. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE EXPRESSLY DISCLAIMED INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR 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.
16. Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, PROFIT, DATA, 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 PROBO MEDICAL 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 PROBO MEDICAL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO PROBO MEDICAL PURSUANT TO THE APPLICABLE PRODUCTS OR SERVICE IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
17. Copyright Protection. Customer acknowledges that it has purchased system and/or Equipment may contain copyright-protected software owned by third parties. Customer acknowledges and agrees that it does not have any rights to modify, reverse engineer, copy or create derivative works of any such software; cannot remove or modify labels or notices of proprietary rights related to the software or its documentation, and cannot circumvent any security measures related to such software.
18. Regulatory Compliance; Export. Customer agrees to comply with all applicable laws and regulations in connection with its use of the products, including without limitation, U.S. and foreign medical device laws, environmental laws, import/export laws and product safety laws. Customer acknowledges that the products are medical devices regulated by the U.S. Food and Drug Administration and may only be used by or on the order of a licensed health care provider. If Customer re-sells the products to a third party, Customer shall indemnify Seller against any damages or costs incurred by Seller as a result of such sale. Customer assumes sole responsibility for obtaining any required export authorizations in connection with Customer's export of the products.
19. Customer shall indemnify Seller and its successors and assigns and each of their respective employees, agents, officers, and directors for any claim or loss directly or indirectly attributable to Customer's acquisition, use, or sale of Equipment, except to the extent that such claim or loss is caused solely by Seller's willful misconduct.
20. Force Majeure; Delays. Each party shall be excused from performing its obligations (other than payment obligations) arising from any delay or default caused by events beyond its reasonable control including, but not limited to, acts of God, epidemics, acts of any civil or military authority, fire, floods, war, embargoes, labor disputes, acts of sabotage, riots or civil commotion, accidents, delays of carriers, subcontractors or suppliers, voluntary or mandatory compliance with any government act, regulation or request, shortage of labor, materials or manufacturing facilities. Further, Seller shall not be liable for any loss or damage resulting from delays in receipt of instructions from Customer, changes requested by Customer, or other causes beyond Seller's reasonable control.
21. Assignment; Binding Effect. Customer may not assign any of its rights or obligations under this Agreement without the prior written consent of Seller, which consent shall not be unreasonably withheld or delayed so long as any assignee agrees, in writing, to be bound by the terms of this Agreement. Subject to such limitation, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
22. Amendment; Waiver; Validity; Survival. This Agreement may be amended only in writing signed by both parties. Any failure to enforce any provision of this Agreement is not a waiver of that provision or any party's right to later enforce that or any other provision. If any provision(s) of this Agreement shall be held to be invalid, illegal or unenforceable, the remaining provisions shall remain in effect. The terms of this Agreement that by their nature are intended to survive its expiration will continue in full force and effect after the expiration or termination of this Agreement.
23. Governing Law; Waiver of Jury. This Agreement shall be governed by and construed under the laws of the State of Florida, excluding its choice of law rules. Customer consents to the exclusive jurisdiction and venue of Florida courts located in Hillsborough County. EACH PARTY EXPRESSLY WAIVES ALL RIGHTS TO A JURY TRIAL IN CONNECTION WITH ANY DISPUTE ARISING UNDER THIS AGREEMENT. Any action for a breach of contract or other claim arising out of the parties' business relationship must be commenced within one year after the cause of action has accrued.
24. Extended Warranty. Seller warrants that, in normal use, the Equipment will be free from defects in material and workmanship for an agreed upon warranty coverage period, including all parts and labor, where such coverage period begins on the installation complete date. Such extended warranty terms include quality assured parts, on-call remedial service as required due to Equipment malfunction, part replacement, service calls during primary service hours, local engineer, phone support, same day service when available, next day parts delivery when available, shipping, travel and labor within primary service hours. Customer’s sole and exclusive remedy for breach of the warranty set forth in this Section shall be the repair and maintained services pursuant to the Section. All other terms in the Agreement apply to the extended warranty period.