Terms of Sale: This sets forth the terms and conditions pursuant to which Xcel Supply, LLC (“Xcel”) sells its products to purchaser of said products, or its successors and permitted assigns (“Buyer”) and is subject to and expressly limited by the terms and conditions contained herein. No changes to, waiver of, or addition to any of these terms and conditions shall be effective unless agreed to in writing and signed by Xcel. Xcel reserves the right at any time to amend these terms and conditions, and Buyer shall be deemed to accept such amended terms and conditions by ordering products herein offered after the date of such amendment. Additional special terms and conditions of Xcel may be applicable with respect to certain products. Price and Payment: All pricing quotes must be documented in writing and signed by Xcel to be valid. Xcel reserves the right to change the prices and specifications of its products at any time with appropriate advance notice. All prices are subject to the addition of any tax applicable to or in connection with the transaction and to any increase for any extras, including, without limitation, for additional materials not originally a part of this agreement. Unless otherwise agreed to in advance by Xcel, in writing, payment terms are net thirty (30) days from date of invoice. Credit card payments will not be accepted without prior approval from Xcel. Buyer's obligation to pay outstanding invoices and all other amounts is absolute and unconditional and is not subject to any abatement, reduction, set-off, defense, counterclaim, interruption, deferment or recoupment for any reason whatsoever. Balances remaining unpaid at due date are subject to an interest charge of 1.5% per month or the highest rate permitted by law, whichever is lower, until paid. Any discounts, rebates, administrative fees, credits, or other fees due or owed to Buyer will be applied against delinquent balances before payment or reimbursement is made. Xcel reserves the right in its sole discretion to refuse to sell and/or withhold further shipment until all accounts that are sixty (60) days or more past due are made current. Buyer shall be liable for, and shall reimburse Xcel for all costs and expenses it may incur in connection with collection of any amounts owed to Xcel or enforcement of its rights, including without limitation, reasonable attorneys' fees and expenses, court costs, and cost of collection agencies. Title: Products sold and delivered to Buyer hereunder, shall remain the sole and exclusive property of Xcel, and title therein shall not pass to Buyer, until the specified purchase price is paid in full. Xcel reserves the right to remove, retake and repossess any or all of the products supplied hereunder upon Buyer’s failure to make any payment of the purchase price when due. Xcel’s presence upon Buyer’s premises for the purpose of repossessing such products shall not be deemed a trespass nor infringement of any right of Buyer. Returned Goods Policy:Credits for returned goods are conditioned upon Xcel's inspection and approval of such goods upon their return. If Xcel determines, in its discretion, that any returned goods are not eligible for return due to any of the reasons provided in paragraph 4 below, Buyer will not receive a credit, even if a Returned Goods Authorization Form (“RGA”) was issued. No advance credits will be accepted.Product returns are subject to the following conditions.All returns are subject to the prior authorization of Xcel, in its sole discretion. Buyer must notify Xcel Customer Support at (800) 579-XCEL and complete an RGA within thirty (30) days of purchase. Only items appearing on an approved RGA Form are acceptable for return. Returns that are authorized for products ordered-in-error or shipped-in-error will not be accepted unless returned within thirty (30) days of delivery. 1) Credit will be issued at the net purchase price for all authorized returns provided: a. Products have at least one (1) year shelf-life remaining, or products with original expiration dating of eighteen (18) months or less have at least six (6) months shelf-life remaining; b. Proper authorization has been obtained prior to return of products; c. Products are in their original packaging; d. Products are current inventory items; e. The Products have been shipped and billed to Buyer by Xcel, and Buyer has paid for said products. 2) Products not eligible for return at Xcel’s sole discretion are: a. Products that have deteriorated because of improper handling, abuse or other factors; b. Products on which labels/seals have been removed or altered, or that have been partially used; c. Products that have been involved in a special promotion sale; d. Damaged or opened cases or partially used products or resealed cartons; e. Special products made to Buyer's specification. 3) Products that are to be returned for repair (e.g., medical device equipment) must be accompanied by an approved RGA Form, which clearly states the reason for return. Balloon products are subject to additional conditions available upon Buyer’s request. Warranty:With respect to disposable products, Xcel warrants to the original purchaser only that, at the time of delivery, each standard product manufactured by Xcel shall be free of defects in material and workmanship and, when used for the purposes and use described on the labeling, is fit for the particular purpose and use described thereon. All warranties for a product shall expire as of product expiration date, or if none, after one (1) year from the date of shipment from Xcel to Buyer. Xcel's warranty hereunder shall not apply if: (i) a product is not used in accordance with its instructions or if it is used for a purpose not indicated on the labeling; (ii) any repairs, alterations or other work has been performed by Buyer or others on such item, other than work performed with Xcel's written authorization and according to its approved procedures; or (iii) the alleged defect is a result of abuse, misuse, improper maintenance, accident or the negligence of any party other than Xcel. The warranty set forth herein is conditioned upon proper storage, installation, use and maintenance in accordance with applicable written recommendations of Xcel. The warranty furnished hereunder does not extend to damage to items purchased hereunder resulting in whole or in part from the use of components, accessories, parts or supplies not furnished by Xcel. Xcel's sole obligation shall be to repair or replace, at Xcel's option, any defective component or item and pay transportation expenses for such replacement. Buyer shall provide labor for the removal of the defective component or item and installation of its replacement at no charge to Xcel. Buyer shall bear all risk of loss or damage to returned goods while in transit. In the event no defect or breach of warranty is discovered by Xcel upon receipt of any returned item, the item will be returned to Buyer at Buyer's expense and Buyer will reimburse Xcel for the transportation charges, labor and associated charges incurred in testing the allegedly defective item. Except as expressly provided herein, Xcel makes no representation or warranty of any kind, expressed or implied with respect to any products, parts or services provided by Xcel including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. THE SALE OF PRODUCTS HEREUNDER IS A SALE ON AN “AS IS, WHERE IS” BASIS. Products distributed, but not manufactured, by Xcel are not warranted by Xcel and Buyer must instead rely on the representations and warranties, if any, provided directly to Buyer by the manufacturer of such product. The sole and exclusive remedy for breach of any warranty is limited to the remedies provided herein. Xcel's total liability for any claim or action shall not exceed the purchase price of the products out of which such claim or action arose. Shipping and Force Majeure: All costs of transportation and freight shall be borne by Xcel, except as may otherwise be provided and specifically noted as a term on the face hereof. Xcel will use its reasonable efforts to fill orders, but Xcel shall not be liable for nonperformance or delays caused by circumstances beyond its control, including but not limited to, a shortage of raw materials, manufacturing problems, delivery or labor problems, acts of war or terrorism, civil strife, acts of regulatory agencies or judicial bodies, discontinuation of a product line, acts of God or third parties, infringement claims, or other causes beyond its reasonable control. Xcel reserves the right from time to time to substitute a product with a product that has the same function as such product, or to delete a product. Risk of Loss and Damage/Loss in Transit: The risk of any loss, destruction, theft of or damage to any of the products set forth on the face hereof shall be borne exclusively by Buyer upon the earlier to occur of the following: (i) said goods are placed by Xcel with a carrier for delivery to Buyer; or (ii) said products reach Buyer’s premises. Said risk shall remain unaffected, notwithstanding that title to all of the products hereunder remain with Xcel until the purchase price specified herein has been paid in full. Identity of items and extent of damage or loss must be noted on Buyer's copy of delivery document by the agent of the transportation company. If damage is discovered by Buyer after receipt of shipment, the transportation company shall be notified immediately and inspection be requested and an inspection report rendered. Concealed shortages or damages within palletized shipments must be reported in writing to Xcel Customer Support within 3 business days of delivery or credit will not be allowed. Xcel will issue a credit for the loss or damage and file a claim with the carrier, providing your request is promptly forwarded to Xcel and received within ten (10) days of delivery. This claim request must be accompanied by a delivery receipt or an inspection report upon which the transportation company has properly noted such damage or loss. Send copy of carrier freight bill to Xcel Customer Support indicating item and quantity damaged or not received. All shipments must be inspected and counted before carrier departs. Damaged merchandise should not be accepted. Please forward all information to Xcel Customer Support, Xcel Supply, LLC 2201 Main Street, Evanston, IL 60202, (800) 579-XCEL. Applicable Law, Forum: The products are sold subject to Illinois law. These terms and any dispute or claim relating to these terms or the sale of products (“Claim”) shall be governed by and construed under Illinois law, notwithstanding its law of conflicts of law. The forum for any dispute arising hereunder that is subject to litigation, shall be the state or federal courts located in Cook County, Illinois. No cause of action arising out of or relating to the product or claimed breach of these terms and conditions may be asserted by Buyer, whether in contract, tort or otherwise, more than one (1) year after the date on which such cause of action first accrued. Disclosure: If the pricing offered by Xcel to a Buyer constitutes a discount or other reduction in price under Section 1128(b)(3)(a) of the Social Security Act 42 U.S.C. 1320a-7b(b)(3)(a), and C.F.R. § 1001.952(h), Buyer shall disclose the discount or reduction in price to the fullest extent required under any state or federal program that provides cost or charge-based reimbursement to Buyers for products. This act requires, among other things, that Buyer fully and accurately report on any claim or request for payment it submits to Medicare and Medicaid the actual purchase price paid by Buyer for products, net of any discounts, rebates or allowances. Buyer may also be required, upon request, to provide documentation of the discount or other reduction in price to the Secretary of Health and Human Services.
