- AGREEMENT AND ACCEPTANCE. These Terms of Sale shall apply and shall govern the sale of all Products delivered to you by eMed. “Product(s)” shall mean diagnostic tests and/or telehealth kits and services available for sale through eMed 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in any order form issued by you, unless specifically accepted in writing by eMed, shall be null and void and entirely superseded by the terms and conditions of these Terms of Sale.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 without prior notice.
- PRICING. Prices are subject to review and approval by eMed and may be revised without notice at any time.
- AVAILABILITY; PURCHASE ORDERS; PAYMENT TERMS; SHIPPING; TAXES. All Products offered for sale by eMed are subject to availability and eMed reserves the right to impose quantity limits on any order. If any of the Products in your order are unavailable, eMed will only charge the prices, Taxes, and other applicable charges associated with the products that are included in the shipment. In the event of an error, eMed reserves the right to correct the error and revise your order accordingly (which includes charging the correct price) or to cancel the order. All Purchase Orders accepted by eMed are considered final and may not be canceled, rescinded, or modified by purchaser, without eMed’s prior written approval. Payment terms are net in advance. 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. eMed reserves the right to increase, decrease, add, or eliminate shipping and handling charges from time to time. You assume title and risk of loss to such goods, excluding equipment, when goods are delivered into custody of the carrier. All Products are shipped FOB origin. Products 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. Any delivery dates are estimates only and guaranteed. To the extent you will be redistributing Products 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 your 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 more than 48 hours after receipt.
- PRODUCT PERFORMANCE. If you experience difficulty with a Product, you can contact eMed’s Customer Support through the eMed website or call eMed Technical Support at 866-955-1173. If you experience a problem with an order or shipment, you you can contact eMed’s Customer Support through the eMed website or 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 a 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 Products obtained by using any Product 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 TERMS 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. If you fail to comply with the restriction described in this paragraph or use any product in any manner inconsistent with its intended use, eMed may, at its discretion, seek any remedies available at law. You agree and understand that the Products may contain certain components, including diagnostic tests that may require to be properly stored in accordance with the manufacturer’s instructions.
- DEPOSITS. You acknowledge and agree that the supply of Product may involve significant lead time and the expenditure by eMed of substantial resources prior to delivery. As may be required by eMed, you shall upon issuance of a Purchase Order (“PO”), and as a condition of eMed’s acceptance of such PO, pay to eMed a certain percentage of the total purchase price set forth in such PO (the “Deposit”). The Deposit shall be non-refundable and be netted against the final amount due to eMed pursuant to such PO.
- 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, 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, natural disasters, acts of war or terrorism, riots, government acts or orders, interruption of transportation, Internet disturbance, or inability to obtain material upon reasonable prices or terms.
- FDA NOTICE. Products available from eMed may contain a COVID-19 diagnostic test that has: (a) not been FDA cleared or approved; but has been authorized by FDA under an Emergency Use Authorization (EUA); (b) been authorized only for the detection of proteins from SARS- CoV-2, not for any other viruses or pathogens; and, (c) only been 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.
- CONFIDENTIALITY. The terms of Purchase Orders or any modifications thereto, 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 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.
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 arbitration, to the fullest extent permitted by applicable law. You also agree that any arbitration will take place in Miami, Florida. The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Any arbitration between you and eMed will be initiated through the American Arbitration Association (“AAA”) and will be governed by the AAA Consumer Arbitration Rules. The AAA Rules and filing forms are available at www.adr.org.
Last Modified: April 7, 2023