Terms of Sale
eMed Labs, LLC (“eMed”) – 990 Biscayne Blvd., Suite 1501, Miami, FL 33132
By submitting an order or accepting or using Products, you acknowledge that you agree to be bound by these terms and conditions (the “Terms of Sale”) in their entirety.
- AGREEMENT AND ACCEPTANCE. To the extent that you do not have an Existing Agreement with eMed for Products being purchased, these Terms of Sale shall apply and shall govern the sale of all Products delivered to you by eMed. “Existing Agreement” shall mean any existing agreement currently entered between you and eMed. “Product” shall mean the BinaxNOW COVID-19 Ag Card Home Test referenced in any order form submitted by you to eMed. All terms and conditions contained in any order form issued by you, unless specifically accepted in writing by eMed, shall be null and void and entirely superseded by the terms and conditions of these Terms of Sale. eMed reserves the right to accept or reject orders.
- PRICING. Prices are subject to review and approval by eMed and may be revised without notice.
- PURCHASE ORDERS; PAYMENT TERMS; SHIPPING; TAXES. All Purchase Orders accepted by eMed are considered final and may not be cancelled, rescinded, or modified, without eMed’s prior written approval. Payment terms are net fifteen (15) days. Past due balances are subject to a service charge of one and one-half percent (1 1⁄2%) per month or the highest rate allowed by law, whichever is lower. eMed ships goods with shipping charges prepaid and added to each invoice. You assume title and risk of loss to such goods, excluding equipment, when goods are delivered into custody of the carrier. All tests are shipped FOB origin. Tests are only shipped Monday through Thursday. Shipment transit time is limited to 2 calendar days. Ground shipments that exceed two calendar days will be upgraded to 2-day service. To the extent Company will be redistributing tests to participants, you must adhere to product specifications in regard to shipment transit times. Absent any written agreement to the contrary, eMed reserves the right to ship all orders during the month in which the Purchase Order was received and accepted. Unless you are fully exempt from all taxes, you are required to pay all federal, state and local taxes that may be imposed on the use, possession, ownership, or rental or lease of any product. eMed shall add any such tax to the invoice. You shall reimburse eMed for any such taxes paid by eMed. If you are tax-exempt, you must provide eMed with a copy of tax-exempt certification.
- RETURNS. Products damaged in transit, delivered in error or found to be incomplete or defective will be replaced at no charge and a delivery pick-up ticket will be issued for the damaged, erroneously delivered or defective product. Claims for damage, shipping error or product issue must be reported immediately, but no less than 48 hours after receipt.
- PRODUCT PERFORMANCE. If you experience difficulty with a Product, you should call eMed Technical Support at 866-955-1173. If you experience a problem with an order or shipment, you should call Customer Service at 866-955-1173. All returns shall be governed by eMed’s return policy, which eMed shall provide to you upon request.
- WARRANTY. eMed warrants and represents that Products delivered to carrier for shipment to you, or delivered directly to you, will commence on acceptance of Product and continue for the shelf life of the Product: (1) materially conform to published specifications set forth in the applicable eMed package insert(s) for such Product; (2) not be adulterated or misbranded within the meaning of the U.S. Food, Drug and Cosmetic Act; and (3) be of good quality and free from defects in materials and workmanship. Except as to warranties specifically set forth in this paragraph, the only other warranties made by eMed with respect to Products are those specifically and expressly stated as warranties in the eMed package insert specifications and manuals. EMED MAKES NO OTHER WARRANTIES; EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY OTHER MATTER. Notwithstanding the foregoing, any warranties provided by eMed will not apply to any Product if (a) it has been misused, altered, damaged or used other than in accordance with the applicable eMed package insert and/or operating manual (including product dating); (b) it has been used in combination with other articles, substances or reagents (or any combination thereof) (collectively, “Substances”) not provided or recommended for use by eMed with such Product; (c) the serial or lot number of any Product has been altered, defaced, or removed; or if any repair is attempted by personnel who has not been authorized by eMed to perform such repair; or (d) the Product was purchased from an unauthorized distributor (subsections (a) through (d), collectively, “Warranty Exclusions”). If any Product does not comply with the warranty set forth in this paragraph, as your sole and exclusive remedy, eMed shall, at its discretion, repair or replace the applicable Product at no additional expense to you.
- DISCLAIMER. You assume all risk for the suitability of the test results obtained by using any Product and/or equipment hereunder, and the consequences which flow therefrom. You assume all risk when any of the Warranty Exclusions apply to the Products and/or equipment. EMED'S AGGREGATE LIABILITY UNDER THESE TERM OF SALE WILL NOT EXCEED THE PRICE PAID FOR THE PRODUCTS GIVING RISE TO THE CLAIM. IN NO EVENT SHALL EMED BE LIABLE FOR ANY PUNITIVE, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES OR LOSSES OF ANY NATURE WHATSOEVER (INCLUDING WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS, OR LOST BUSINESS) ARISING OUT OF THESE TERMS OF SALE OR THE USE OF PRODUCTS, EQUIPMENT, SERVICES, OR MISCELLANEOUS PURCHASES OR ANY FAILURE BY eMed TO SUPPLY PRODUCTS, EQUIPMENT, SERVICES, OR MISCELLANEOUS PURCHASES HEREUNDER.
- USE OF PRODUCTS. The Products purchased under these Terms of Sale are for your own use and not for resale or distribution to any third party. You agree not to (1) resell the products; and (2) use the products, as applicable, past their expiration date. Upon reasonable notice, eMed or its designee may, at its expense, audit all of your relevant books and records to confirm your compliance with the restriction on resale set forth herein. Any such audit shall be conducted during your normal business hours. If your fail to comply with the restriction described in this paragraph or uses any product in any matter inconsistent with its intended use, eMed may, at its discretion, seek any remedies available at law. You agree and understand Products are required to be properly stored, in a temperature-controlled environment between 2 and 30 degrees Celsius (35.6 – 86 degrees Fahrenheit).
- MISCELLANEOUS. These Terms of Sale constitute the entire understanding between you and eMed with respect to the subject matter contained within the Terms of Sale. Written notice to eMed shall be addressed to: eMed Labs, LLC, 990 Biscayne Boulevard, Suite 1501, Miami, FL 33132, ATTN: Legal Department. You may not assign or transfer these Terms of Sale without eMed’s prior written consent. eMed may assign any of its rights and/or obligations under these Terms of Sale Agreement to an affiliate or parent of eMed. These Terms of Sale shall be governed by and construed in accordance with the laws of the State of Florida, excluding choice of law provisions. eMed shall not be liable for any failure to supply due to events outside its reasonable control, including strikes (legal or illegal), lockouts, fires, floods, or water damage, riots, government acts or orders, interruption of transportation, or inability to obtain material upon reasonable prices or terms.
- FDA NOTICE. This Product has not been FDA cleared or approved; but has been authorized by FDA under an Emergency Use Authorization (EUA); This Product has been authorized only for the detection of proteins from SARS- CoV-2, not for any other viruses or pathogens; and, This Product is only authorized for the duration of the declaration that circumstances exist justifying the authorization of emergency use of in vitro diagnostics for detection and/or diagnosis of COVID-19 under Section 564(b)(1) of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 360bbb-3(b)(1), unless the declaration is terminated or authorization is revoked sooner.
- PRESCRIPTION REQUIREMENT. You acknowledge the BinaxNOW COVID-19 Ag Card Home Test is authorized for prescription use only. Accordingly, you agree to ensure that each End User has a valid prescription from a duly licensed healthcare professional and is otherwise eligible to obtain and use the Home Test Kits, which prescription shall be provided in accordance with Applicable Law and Regulatory Approvals. Nothing whatsoever in this Agreement is intended to influence or instruct any health care professional’s decision to write a prescription, and any decision to prescribe is based solely upon the medical judgment of the individual health care professional .For the avoidance of doubt, eMed shall not provide (and the duties and obligations to be performed by eMed hereunder shall not include) any act that would violate the corporate practice of medicine rules or regulations under the applicable state law in which eMed is performing services, or the applicable jurisdiction in which eMed is providing services, and eMed assumes no responsibility for such. eMed shall have no control or direction over the delivery or provision of professional medical services.
- CONFIDENTIALITY. The terms of these Terms of Sale are confidential and, except as otherwise required by law, you shall not disclose such terms to any third party without eMed's prior written consent, provided that you shall be permitted to disclose the terms of these Terms of Sale to the extent required by applicable law or as reasonably required by your attorneys, accountants and other professional advisors, who are under an obligation of confidentiality to you. The provisions of this paragraph shall survive termination or expiration of these Terms of Sale.
- ALTERNATIVE DISPUTE RESOLUTION. Any dispute or claim arising out of or in connection with these Terms of Sale initiated by either party shall be resolved by binding Alternative Dispute Resolution.