These Terms and Conditions of Sale and Service (“Terms”) govern all sales of products, equipment, supplies and services (collectively, “Products” or “Services”) by the entity identified on the invoice (“Company,” “we,” “us” or “our”) to the customer or insurer identified on the invoice (“Customer,” “you” or “your”). By accepting delivery of Products, receiving Services, or paying any invoice, Customer agrees to be bound by these Terms. These Terms supersede any conflicting terms in Customer’s purchase orders, acknowledgments or other documents.
Payment Due Date. Unless otherwise specified in writing by Company, all invoices are due and payable net thirty (30) days from the invoice date. Payment shall be made in U.S. dollars by check, wire transfer, ACH or such other method as Company may designate.
Application of Payments. Company may apply payments received to any outstanding invoices or balances owed by Customer in Company’s sole discretion, regardless of any contrary designation by Customer.
Credit Terms. Company reserves the right to modify, suspend or revoke credit terms at any time without prior notice and may require payment in advance, letters of credit or other security as a condition of sale.
Late Fees. Any amount not paid when due shall bear interest at the rate of one and one-half percent (1.5%) per month (eighteen percent (18%) per annum), or the maximum rate permitted by applicable state and federal law, whichever is greater, calculated from the due date until paid in full.
Suspension of Services. Company may, without liability, suspend or terminate any Services, withhold future shipments, or exercise any other remedies available at law or equity if Customer fails to pay any amount when due.
Collection Fee. If any amount remains unpaid more than sixty (60) days after the due date, Customer shall pay a collection fee equal to twenty percent (20%) of the outstanding balance, plus all actual costs incurred by Company in collecting such amounts, including but not limited to collection agency fees, skip tracing fees, credit reporting fees, and administrative costs, or the maximum amount permitted by applicable state and federal law, whichever is greater.
Attorneys’ Fees and Litigation Expenses. If Company commences any legal action, arbitration, or other proceeding to collect amounts owed or to enforce these Terms, Customer shall pay all of Company’s costs and expenses, including reasonable attorneys’ fees, expert witness fees, court costs and other litigation expenses. In no event shall such fees and costs be less than thirty percent (30%) of the total amount in dispute, plus all fixed costs and disbursements, or the maximum amount permitted by applicable state and federal law, whichever is greater.
Dispute Notice. Customer must notify Company in writing of any dispute, error or discrepancy regarding an invoice within fifteen (15) days of the invoice date. Any dispute notice must specify in reasonable detail the nature of the dispute and the amount in question. Failure to provide timely written notice shall constitute Customer’s waiver of any objection to the invoice and acceptance of the invoiced amounts as correct.
Payment Pending Dispute. Any undisputed portion of an invoice must be paid when due regardless of any pending dispute. A dispute does not excuse Customer’s obligation to pay the undisputed amounts.
Resolution. Company shall review any timely dispute notice and provide a written response within thirty (30) days. Company’s determination shall be final and binding absent manifest error.
Taxes Customer Responsibility. All prices are exclusive of, and Customer shall pay, all applicable federal, state and local sales, use, excise, value-added and other taxes, duties and governmental charges (however designated) arising from or related to the sale of Products or Services, excluding only taxes based on Company’s net income. If Customer claims a tax exemption, Customer must provide Company with a valid exemption certificate acceptable to the relevant taxing authority prior to purchase.
Indemnification for Taxes. Customer shall indemnify, defend and hold harmless Company from and against any claims, liabilities, penalties, interest and expenses arising from Customer’s failure to pay applicable taxes or from invalid or improper exemption claims.
Pricing. All prices are subject to change without notice. Prices in effect at the time of shipment or service delivery shall apply. Quotes and estimates are valid for thirty (30) days unless otherwise specified and do not constitute binding offers.
Scope of Services. The scope of Services is limited to those expressly described on the applicable invoice, quote or work order. Any additional work requested by Customer or required due to circumstances beyond Company’s control shall be billed at Company’s then-current rates.
Changes and Modifications. Company reserves the right to modify specifications, discontinue Products or change the scope of Services at any time. Company shall not be liable for any costs or damages arising from such changes.
Title Reservation. Notwithstanding delivery, title to all Products shall remain with Company until Customer has paid in full all amounts owed to Company, including without limitation, the purchase price, interest, late fees, collection costs and any other amounts due under these Terms or any other agreement between the parties.
Security Interest. Customer hereby grants Company a purchase money security interest in all Products sold hereunder and all proceeds thereof to secure payment of all amounts owed. Customer authorizes Company to file financing statements and take any other actions necessary to perfect such security interest.
Risk of Loss. Notwithstanding retention of title, risk of loss shall pass to Customer upon delivery of Products to the carrier or, if Company delivers directly, upon arrival at Customer’s designated location.
Limited Warranty. Company warrants that Products sold hereunder will conform to their published specifications at the time of shipment. This warranty does not apply to Products that have been modified, misused, damaged or subjected to abnormal conditions. Company’s sole obligation and Customer’s exclusive remedy for breach of this warranty shall be, at Company’s option, repair, replacement or credit for the defective Product.
Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1, COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT PRODUCTS OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE.
Affiliated Entities Disclosure. Customer acknowledges and agrees that Company is part of a group of affiliated entities (collectively, “Affiliated Entities”) that may conduct business with each other and share resources, personnel, facilities, inventory and services. Company and its Affiliated Entities structure their business relationships and transactions to maximize operational efficiency, minimize costs and liabilities and maximize profits. Such arrangements may include, without limitation: (a) intercompany sales, leases and licenses of products, equipment and intellectual property; (b) shared services arrangements for administrative, technical and support functions; (c) allocation of personnel and resources among entities; (d) intercompany financing and treasury management; and (e) centralized purchasing, distribution and fulfillment operations.
No Assumption of Affiliate Liability. Customer agrees that each Affiliated Entity is a separate legal entity and that Company’s obligations hereunder are solely those of the specific entity identified on the invoice. Customer shall have no claim against any Affiliated Entity other than the invoicing entity, and no Affiliated Entity shall have any liability for the obligations of any other Affiliated Entity. Customer waives any right to assert claims against Affiliated Entities based on alter ego, veil piercing, single enterprise, joint venture, agency or similar theories.
Inquiry Invitation. Customer is encouraged to direct any questions regarding Company’s relationships with Affiliated Entities, vendors, suppliers or other third parties to Company’s designated representative. Company will endeavor to provide responsive information to the extent permitted by applicable confidentiality obligations and business considerations.
Exclusion of Consequential Damages. IN NO EVENT SHALL COMPANY OR ITS AFFILIATED ENTITIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST REVENUE, LOST SAVINGS, LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION OR COST OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR RELATED TO THESE TERMS OR ANY PRODUCTS OR SERVICES, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Limitation on Direct Damages. COMPANY’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OR ANY PRODUCTS OR SERVICES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO COMPANY FOR THE SPECIFIC PRODUCTS OR SERVICES GIVING RISE TO THE CLAIM DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY.
Essential Basis of Bargain. Customer acknowledges that the limitations of liability set forth in this Section 10 are a material inducement for Company to enter into transactions with Customer and that Company’s pricing reflects this allocation of risk. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
RMA Required. No Product may be returned without Company’s prior written authorization and issuance of a Return Merchandise Authorization (“RMA”) number. Unauthorized returns will be refused and returned to Customer at Customer’s expense.
Non-Returnable Items. The following are non-returnable and non-refundable under any circumstances: (a) Services once performed or commenced; (b) disposable items, consumables and single-use products; (c) shipping, freight, handling and delivery charges; (d) special order, custom or modified Products; (e) Products opened, used, installed or removed from original packaging; and (f) any item identified as non-returnable at the time of sale.
Rental Returns. All rentals are billed in full calendar month increments. Partial month returns will not be credited. Rental equipment must be returned in the same condition as delivered, normal wear and tear excepted. Customer shall be responsible for repair or replacement costs for any damage, loss or excessive wear.
Credit Conditions. No credit for returned Products shall be issued until: (a) the returned Product has been received and inspected by Company; (b) all outstanding invoices owed by Customer to Company have been paid in full or paid as agreed pursuant to a written payment arrangement; and (c) any applicable restocking fee (up to twenty-five percent (25%) of the original purchase price) has been deducted.
Order Cancellation. Orders may only be cancelled with Company’s prior written consent and may be subject to cancellation charges of up to one hundred percent (100%) of the order value, depending on the stage of fulfillment and the nature of the Products ordered.
Governing Law. These Terms and all disputes arising out of or related to these Terms, any Products or any Services shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflicts of law principles.
Jurisdiction and Venue. Customer hereby irrevocably and unconditionally: (a) submits to the exclusive personal jurisdiction and venue of the state and federal courts located in the State of Minnesota for any action or proceeding arising out of or relating to these Terms; (b) waives any objection to the laying of venue in such courts; (c) waives any claim that such courts are an inconvenient forum; and (d) consents to service of process by any means permitted by applicable law.
Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THESE TERMS OR ANY PRODUCTS OR SERVICES.
Entire Agreement. These Terms, together with any invoice, quote, work order or other document expressly incorporating these Terms, constitute the entire agreement between Company and Customer with respect to the subject matter hereof and supersede all prior and contemporaneous agreements, proposals, negotiations, representations and understandings, whether written or oral.
Rejection of Customer Terms. Any additional or different terms contained in Customer’s purchase orders, acknowledgments, confirmations or other documents are hereby rejected and shall be of no force or effect, regardless of when received by Company. Company’s failure to object to such terms shall not constitute acceptance thereof.
Order of Precedence. In the event of any conflict between these Terms and any other document, the order of precedence shall be: (a) any written agreement signed by both parties that expressly modifies these Terms; (b) these Terms; (c) Company’s invoice; and (d) any other applicable document. No term in any Customer document shall modify or supersede these Terms.
Modification. These Terms may not be amended, modified or waived except by a written instrument signed by an authorized representative of Company. Company reserves the right to update or modify these Terms at any time, and such updated Terms shall apply to all transactions occurring after the effective date of such update. Updated Terms are available at the following URL: advancedrecover.com/terms-conditions.
Blue Pencil. If any provision of these Terms is held to be invalid, illegal or unenforceable, the remaining provisions shall continue in full force and effect. If any provision is held to be excessively broad, such provision shall be reformed and construed by limiting and reducing it to the minimum extent necessary to render it valid and enforceable while preserving to the maximum extent the original intent of the parties.
Severability. If any provision of these Terms is held by a court of competent jurisdiction to be invalid, illegal or unenforceable, such holding shall not affect the validity of the remaining provisions, which shall remain in full force and effect. The invalid or unenforceable provision shall be deemed modified to the minimum extent necessary to make it valid and enforceable while preserving the intent of the parties.
No Waiver. No failure or delay by Company in exercising any right, power or remedy under these Terms shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All waivers must be in writing and signed by an authorized representative of Company to be effective.
Cumulative Remedies. All remedies available to Company under these Terms or at law or equity are cumulative and may be exercised concurrently or separately. The exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.
Assignment. Customer may not assign or transfer these Terms or any rights or obligations hereunder without Company’s prior written consent. Company may freely assign these Terms or any rights or obligations hereunder to any Affiliated Entity or to any successor in interest by merger, acquisition or sale of assets.
Force Majeure. Company shall not be liable for any delay or failure in performance resulting from causes beyond its reasonable control, including but not limited to acts of God, natural disasters, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, flood, pandemic, epidemic, labor disputes, supply chain disruptions, shortage of materials, transportation delays or any other similar cause.
Notices. All notices required or permitted under these Terms shall be in writing and shall be deemed given: (a) when delivered personally; (b) when sent by confirmed email; (c) one (1) business day after deposit with a nationally recognized overnight courier; or (d) three (3) business days after mailing by certified or registered mail, return receipt requested. Notices to Company must be sent to the address shown on the invoice.
Relationship of Parties. The relationship between Company and Customer is that of independent contractors. Nothing in these Terms shall be construed to create any partnership, joint venture, agency, franchise or employment relationship between the parties.
Survival. The provisions of these Terms that by their nature are intended to survive termination or expiration, shall survive any termination or expiration of these Terms. These Terms shall be construed without regard to any presumption or rule requiring construction against the drafting party. The headings are for convenience only and shall not affect the interpretation of these Terms. BY ACCEPTING PRODUCTS OR SERVICES OR PAYING ANY INVOICE, CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS.
