TRANSACTIONAL TERMS AND CONDITIONS
Updated: June 30, 2020
Transactional Terms & Conditions
The following terms and conditions (“Terms and Conditions”) govern all transactions involving the sale of any goods, products, systems, software, or services (collectively and singularly referred to herein as “Goods”) between EHOB Inc (“EHOB” or “Seller”) and any customer (“Customer” or “Customers”) unless expressly agreed by the parties to the contrary. These Terms and Conditions are incorporated by reference into all purchase orders submitted by Customers, all EHOB order acknowledgements, and all EHOB invoices as if expressly set forth therein.
1. Orders: Shipping. All orders are subject to final acceptance by EHOB. At Seller’s option, in the event Seller is unable to ship all of the Goods ordered, Seller may ship a partial order, in which event Customer shall pay Seller for the Goods received. Shipments to Customer will be made in accordance with the provisions of EHOB’s order acknowledgement and invoice. The failure to ship Goods within the time period specified in the order acknowledgement or invoice shall not be a ground for Customer’s rejection of the Goods, unless Customer gives notice of cancellation of the order, prior to EHOB’s shipment of the Goods. Unless otherwise specified in the Quote, all shipments by EHOB are F.O.B. origin (250 N. Belmont Ave., Indianapolis, IN, 46222), with all costs of transportation being prepaid by EHOB and added to the invoice.
2. Excess Charges. In addition to the actual invoice cost, Customer shall be assessed a late fee of one and one-half percent (1.5%) per month, for each month during which Customer’s payment of an invoice is overdue. Purchases shall be net thirty (30) days from the date of the invoice, unless otherwise stated on the face of the order acknowledgment or invoice. Customer is responsible for a twenty (20) percent re-stocking fee on all returns. Customer shall be liable for all sales and use taxes assessed on the Goods.
3. Inspection of Goods: Acceptance. Customer shall be allowed a period of thirty (30) days, following receipt of the Goods by Customer, in order to inspect the Goods and reject it for nonconformance. The failure to notify EHOB of the nonconformance of the Goods within thirty (30) days of their delivery shall be conclusive to establish Customer’s acceptance of the Goods.
4. Returns. Returned merchandise will be accepted only with a Returned Goods Authorization (RGA) number from EHOB Customer Service. Returns for credit or exchanges must be made within 90 days from the invoice date, excluding DermaCare foam products, and are subject to a 20% minimum restocking charge. Returns for credit and exchanges on DermaCare foam products must be made within 30 days from the invoice date. The RGA number must be clearly marked on the exterior of the container or shipment may be refused. The merchandise must be unopened, undamaged, in saleable condition, and must be in full case quantities. Custom and special-order items cannot be returned.
5. Warranty. For a period of thirty (30) days, or ninety (90) days, or one hundred eighty (180) days, or one year from the date of purchase and dependent upon the product purchased which dictates the warranty period, EHOB warrants the Goods against defects in material, workmanship, design and manufacturing, and that the Goods shall be safe for their intended use, but excluding defects caused by misuse of the Goods and/or improper or insufficient training regarding use of the Goods. If any Goods are defective and a claim is made by Customer on account of such defect, EHOB shall, at the option of the Customer, and as its sole remedy, either replace the defective Goods or credit the Customer in the amount of the purchase price of the defective Goods. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EHOB MAKES NO OTHER WARRANTIES OR CONDITIONS (EXCEPT THOSE PROVIDED IN THIS SECTION), EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, AND EHOB SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE; THE REMEDIES PROVIDED FOR HEREIN ARE THE SOLE AND EXCLUSIVE REMEDIES OF CUSTOMER.
6. Indemnification. Customer agrees to defend, indemnify and hold harmless EHOB from any liability, loss, expense, cost, claim or judgment (including reasonable attorneys’ fees), incurred by EHOB, its directors, officers, employees, representatives, and/or agents, arising out of: (A) any claim relating to, caused by, and/or arising out of the negligent and/or intentional acts or omissions of Customer or any of its directors, officers, employees, representatives, and/or agents; (B) Customer’s violation of any law, ordinance or regulation.
7. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR THE OTHER’S SPECIAL, CONSEQUENTIAL, PUNITIVE, INCIDENTAL OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, except as may be covered by a Party’s insurance policies, or as may arise from a Party’s gross negligence, willful misconduct, fraud or violation of applicable law. IT IS UNDERSTOOD AND AGREED THAT EHOB’S LIABILITY WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE SHALL NOT EXCEED AMOUNTS PAID TO EHOB BY CUSTOMER FOR THE GOODS DURING THE TWELVE (12) MONTHS IMMEIDATELY PRIOR TO THE ACT/EVENT THAT GAVE RISE TO CUSTOMER’S CLAIM AGAINST EHOB.
8. Force Majeure. Any delay or failure of either party to perform its obligations hereunder shall be excused if Seller is unable to produce, sell or deliver, or if Customer is unable to accept delivery, buy or use, the Goods, as a result of an event or occurrence beyond the reasonable control of the applicable party and without its fault or negligence, including, but not limited to, acts of God, actions by any governmental authority (whether valid or invalid), illegality or regulatory restriction, fires, floods, windstorms, explosions, riots, epidemics, natural disasters, wars or other casualty, sabotage, labor problems (including lockouts, strikes and slowdowns), inability to obtain power, material, labor, goods and/or services, energy, utilities or transportation, or court injunction or order; provided that written notice of such delay (including the anticipated duration of the delay) shall be given by the affected party to the other party as soon as possible after the event or occurrence. Notwithstanding the foregoing, under no circumstance will any of the foregoing events or occurrences excuse Customer’s obligations to make payments when due under this Agreement.
9. Assignment. Any right or obligation or performance hereunder or under the order acknowledgement or invoice is not assignable or delegable by Customer without the prior written consent of EHOB, and any such attempted assignment or delegation shall be void and ineffective for all purposes.
10. Non Waiver. Each party’s right to require strict observance or performance of each of the terms and provisions hereof shall not be affected by concurrent waiver of any other term or provision or by any previous waiver.
11. Headings. The section headings have been inserted for convenient reference and shall not be considered in any question of interpretation or construction of these Terms and Conditions.
12. Applicable Law: Venue. Customer and EHOB expressly agree that all rights and duties under the order acknowledgment, invoice, these Terms and Conditions, and any other contract arising therefrom shall be governed by and construed in accordance with the laws of the State of Indiana. Further, EHOB and Customer both expressly agree that Marion County, Indiana shall be the exclusive State and County of venue, for any litigation arising between the parties.
13. No Deductions Against Seller’s Invoices. Customer’s payment obligations to EHOB shall not be subject to deduction for any valid claim of Customer against EHOB arising from this or any other transaction; provided, however, that a final, non-appealable judgment in favor of Customer and against EHOB may be applied as an offset against Customer’s payment obligation to EHOB.
14. Severability. If any provision of this agreement shall be deemed invalid or unenforceable, then this agreement shall be construed as though such provision does not appear herein and shall be otherwise fully enforceable.
15. Notices. All notices, consents, demands and other communications with respect hereto shall be in writing and sent first class mail, postage prepaid, to EHOB, 250 N. Belmont Ave., Indianapolis, IN 46222, and if to Customer addressed as indicated on the face of the purchase order or such other address as Customer provides to EHOB in writing.
16. Non-Exclusive Agreement. This is not an exclusive agreement. Customer is free to engage others to perform services or provide goods the same as or similar to EHOB. Similarly, EHOB is free to offer and sell, to other parties, goods which are the same or similar to those which have been purchased from EHOB by Customer.
17. Entire Agreement: Priority. Subject to any provisions to the contrary, the materials referenced in the introductory paragraph above and these Terms and Conditions constitute the entire agreement of the parties, and incorporates all prior negotiations and understandings, unless otherwise mutually agreed by the parties in writing. No alteration, amendment, change or addition to this agreement shall be binding upon any party unless in writing and signed by the party to be charged. In the event and to the extent of any inconsistencies between the order acknowledgement or invoice and these Terms and Conditions, the terms of the order acknowledgement or invoice, as applicable, shall be controlling.
18. No Third Party Beneficiary Rights. Neither the Contract nor these Terms and Conditions are intended to and shall not be construed to give any third party any interest or rights (including, without limitation, any third party beneficiary rights) with respect to or in connection with any agreement or provision contained herein or contemplated hereby.
19. Customer’s Inconsistent Terms Ineffective. All order acknowledgments and invoices submitted by EHOB to Customer have been expressly conditioned upon the acceptance, in their entirety, of the terms and conditions herein, it being the intention of the parties that EHOB’s order acknowledgment, invoice, and this agreement shall constitute all of the terms of agreement of the parties. Accordingly, Customer acknowledges and agrees that any additional or contrary terms, provisions or conditions contained in purchase orders or other documents submitted to EHOB by Customer shall be of no force or effect.