Effective Date: December 19, 2024
UNIMED TERMS AND CONDITIONS
For the Purchase of Goods
These UNIMED Terms and Conditions For the Purchase of Goods (this “Agreement”) is made by and between UNIMED* and its subsidiaries (as applicable) (“UNIMED”) and the customer listed on the Order Form or Purchase Order (as defined below) (such counterparty, the “Customer“, and together with UNIMED, the “Parties”, and each, a “Party”).
WHEREAS, UNIMED is in the business of selling various medical supplies in the maritime marine industry; and
WHEREAS, Customer is an owner, operator or vendor in the maritime marine industry;
WHEREAS, Customer desires to purchase from UNIMED, and UNIMED desires to sell to Customer the Goods.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.Sale of Goods.
(a)UNIMED shall sell to Customer and Customer shall purchase from UNIMED the goods set forth on a product list provided by UNIMED (the “Goods”) in the quantities and at the Prices (as defined in Section 6) and upon the terms and conditions set forth in this Agreement.
(b)If a Good is supplied with an expiry date less than ten (10) months from delivery, the Goods should be approved by the Customer prior to shipping by UNIMED; provided, however, such approval prior to shipping is not required in the event the Goods are known to have a short shelf life, including but not limited to diagnostic panels and refrigeration items.
(c)Any substitutes or alternatives to the requested Good must be approved by Customer before shipping.
2.Delivery.
(a)UNIMED shall deliver the Goods to Customer at the Customer’s location listed on the applicable order form provided by UNIMED (the “Order Form”) or purchase order provided by the Customer and accepted by UNIMED (the “Purchase Order”) or, as may be required in writing, a separate third-party warehouse (such delivery location, the “Delivery Point”) using UNIMED‘s standard methods for packaging and shipping such Goods. Customer shall take delivery of the Goods at to the Delivery Point. All delivery and shipping of Goods will be performed at UNIMED’s standard Incoterms in accordance with UNIMED’s policies for the respective Goods. Customer may request specific shipping terms which UNIMED may agree to, in its sole discretion.
(b)UNIMED may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of the quantity purchased under this Agreement.
(c)If UNIMED is unable to deliver the Goods at the Delivery Point on such date because Customer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Customer; (ii) the Goods shall be deemed to have been delivered; and (iii) UNIMED, at its option, may store the Goods until Customer picks them up, whereupon Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
3.Title and Risk of Loss. Title and risk of loss pass to Customer upon delivery of the Goods at the Delivery Point when the invoice is issued by UNIMED. As collateral security for the payment of the purchase price of the Goods, Customer hereby grants to UNIMED a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Delaware Uniform Commercial Code. For EXW shipping specifically, title and risk of loss shall pass when the Goods are made available at the agreed delivery destination.
4.Inspection and Rejection of Nonconforming Goods; Expiration.
(a)Customer shall inspect the Goods within fifteen (15) days of receipt (“Inspection Period”). Customer will be deemed to have accepted the Goods unless it notifies UNIMED in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by UNIMED. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in this Agreement; (ii) is expired or (iii) the product’s label or packaging incorrectly identifies its contents.
(b)If Customer timely notifies UNIMED of any Nonconforming Goods, UNIMED shall, in its sole discretion, replace such Nonconforming Goods with conforming Goods. If agreed to by UNIMED, Customer shall ship, at UNIMED’s expense and risk of loss, the Nonconforming Goods as instructed by UNIMED to UNIMED‘s facility. If UNIMED exercises its option to replace Nonconforming Goods, UNIMED shall, after receiving Customer‘s shipment of Nonconforming Goods (if applicable), ship to Customer, in accordance with DAP shipping, the replaced Goods to the Delivery Point.
(c)Customer acknowledges and agrees that the remedies set forth in Section 4(b) are Customer‘s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 4(b), all sales of Goods to Customer are made on a one-way basis and Customer has no right to return Goods purchased under this Agreement to UNIMED.
5.Price. Customer shall purchase the Goods from UNIMED at the prices (the “Prices”) set forth on the applicable Order Form or Purchase Order. UNIMED conducts a twelve-month review of formulary and prices of the Goods, beginning at the tenth month to allow time for the review process. If a material price change of a Good, in UNIMED’s opinion, is caused by a supply chain issue, pricing of the Good(s) may be reviewed with the Customer to determine appropriate revised price. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes (as applicable), duties and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs, and taxes; provided that, Customer shall not be responsible for any taxes imposed on, or with respect to, UNIMED‘s income, revenues, gross receipts, personnel or real or personal property or other assets.
6.Payment Terms. Customer shall pay all invoiced amounts due to UNIMED within thirty (30) days from the date of UNIMED‘s invoice. Customer shall make all payments hereunder by an acceptable form of payment and in US dollars, or otherwise agreed to by the parties. Customer shall pay interest on all payments received on or after fifteen (15) days from the date due at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly and shall be in addition to any other remedy available to UNIMED. Customer shall reimburse UNIMED for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
7.No Setoff. Customer shall not, and acknowledges that it will have no right, under this Agreement, any other agreement, document or law, to withhold, offset, recoup or debit any amounts owed (or to become due and owing ) to UNIMED or any of its affiliates, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by UNIMED or its affiliates, whether relating to UNIMED‘s or its affiliates’ breach or non-performance of this Agreement or any other agreement between Customer or any of its affiliates, and UNIMED or any of its affiliates, or otherwise.
8.Warranties.
(a)UNIMED MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (iii) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(b)Products manufactured by a third party (“Third-Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. UNIMED hereby assigns to the Customer any and all warranties that the manufacturer may provide to the end user for Goods, and all claims under that warranty will be handled between the manufacturer and the Customer. For the avoidance of doubt, UNIMED MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (i) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
9.Limitation of Liability.
(a)IN NO EVENT SHALL UNIMED OR ITS AFFILIATES BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT (INCLUDING NEGLIGENCE), REGARDLESS OF (i) WHETHER SUCH DAMAGES WERE FORESEEABLE, (ii) WHETHER OR NOT UNIMED WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (iv) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b)IN NO EVENT SHALL UNIMED’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO UNIMED FOR THE GOODS SOLD HEREUNDER IN THE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM
(c)FOR UNIMED UK Entity: Except as expressly stated in this Agreement, this Agreement does not confer any rights on any person or party under the Contracts (Rights of Third Parties) Act 1999. The Parties may rescind, vary or terminate this Agreement in accordance with its terms without the consent of or notice to any person on whom such rights are conferred.
10.Compliance with Law. Customer is in compliance with and shall comply with all applicable laws, regulations, and ordinances. Customer has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
11.Indemnification. Customer shall indemnify, defend and hold harmless UNIMED, its affiliates, and its and their respective officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party, relating to/arising out of or resulting from any claim of a third party or UNIMED arising out of or occurring in connection with the products purchased from UNIMED or Customer‘s negligence, willful misconduct or breach of this Agreement. Customer shall not enter into any settlement without UNIMED‘s or Indemnified Party’s prior written consent.
12.Insurance. Customer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability and all other types of insurance with financially sound and reputable insurers that shall be considered reasonable in scope for the risks anticipated with the activities, products and services of the Customer, including that to cover negligence, gross negligence or willful misconduct of the Customer with respect to the use of the Goods.
13.Termination. In addition to any remedies that may be provided in this Agreement, UNIMED may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (i) fails to pay any amount when due under this Agreement and such failure continues for sixty (60) days after Customer‘s receipt of the invoice or (ii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
14.Confidential Information. All non-public, confidential or proprietary information of either Party, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by the disclosing Party to the receiving Party, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by the disclosing Party in writing. The receiving Party will use the same degree of care to protect the disclosing Party’s Confidential Information as the receiving Party uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. Upon the disclosing Party’s request, the receiving Party shall promptly return all documents and other materials received from the disclosing Party. The disclosing Party shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; or (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party.
15.Data Protection and Intellectual Property Rights
(a)The Parties agree to comply with all applicable domestic and international data protection laws including the General Data Protection Regulation when processing personal data in the context of this Agreement. The Parties warrant and represent that, when sharing personal data with each other, such personal data has been collected and processed in compliance with applicable data protection law.
(b)UNIMED may use Marks for marketing or promotional purposes, including, but not limited to, on Contractor’s website and social media platforms to identify the Manager or the Company (as applicable) as a customer of Contractor. Marks shall mean name, logo, trademarks, services marks and copyrights owned by a Party.
16.Entire Agreement. This Agreement, including and together with any Order Form, Purchase Order, related exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
17.Survival. Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of this Agreement; and (b) Section 6-9, 11, 12, 14, 15, 17-30 of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement.
18.Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement must be in English and writing and addressed to the other Party at its address as set forth on the Order Form or Purchase Order (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid) or email (with confirmation of transmission) (with respect to UNIMED to the designated contact email address provided by UNIMED and to Customer to the email address currently on file with UNIMED, or, in each case, such other email address(es) as may be notified by a Party to the other Party in writing from time to time). Except as otherwise provided in this Agreement, a notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
19.Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
20.Amendments. This Agreement and any modification or amendment to this Agreement will be posted online. For new Order Forms or Purchase Orders, this Agreement shall be effective as of the date posted. In the event of a modification of this Agreement during an open Order Form or Purchase Order, such modification or amendment shall be effective thirty (30) days from the effective date posted online. Any terms, provisions or conditions on a purchase order, request for services, or other similar document from Customer which relate to, or purport to modify or override, any provision of this Agreement (including any of online terms of the Customer are void. The terms hereof may be waived, only by a written document signed by each Party to this Agreement or with waiver, by the Party or Parties waiving compliance.
21.Waiver. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
22.Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.
23.Assignment. Customer shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of UNIMED. Any purported assignment, transfer, delegation or subcontract in violation of this Section shall be null and void. No assignment, transfer, delegation or subcontract shall relieve Customer of any of its obligations hereunder. UNIMED may at any time assign, transfer, delegate or subcontract any or all of its rights or obligations under this Agreement without Customer‘s prior written consent.
24.Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
25.No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
26.Choice of Law.
(a)FOR UNIMED US Entity: This Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of Delaware, United States of America, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. This Agreement shall be governed by and construed and enforced under the State of Delaware without regard to conflicts of law or principles thereof.
(b)FOR UNIMED UK Entity: This Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the England and Wales, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of England and Wales. This Agreement shall be governed by and construed and enforced under the State of Delaware without regard to conflicts of law or principles thereof.
27.Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than the courts of the State of Delaware (for UNIMED US Entity) and England and Wales (for UNIMED UK Entity) and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in the courts of the State of Delaware (for UNIMED US Entity) and England and Wales (for UNIMED UK Entity). Each Party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
28.Waiver of Jury Trial. Each Party acknowledges and agrees that any controversy that may arise under this Agreement, including exhibits, schedules, attachments, and appendices attached to this Agreement, is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, including any exhibits, schedules, attachments or appendices attached to this Agreement, or the transactions contemplated hereby.
29.Force Majeure.
(a)Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of the Customer to make payments to UNIMED), when and to the extent such failure or delay is caused by or results from acts beyond the reasonable control of the impacted Party (“Impacted Party”), including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (i) acts of God; (ii) flood, fire, earthquake, pandemics, epidemics, tsunami, hurricane, tornado or explosion; (iii) war, invasion, hostilities (whether war is declared or not), revolution, insurrection terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; (viii) shortage of adequate power or transportation facilities or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage; and (ix) other similar events beyond the reasonable control of the Impacted Party.
(b)The Impacted Party shall give notice to the other Party, as soon as practicable of the Force Majeure Event, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) days following written notice given by it under this Section, either Party may thereafter terminate this Agreement upon written notice.
30.Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Agreement.
*A note on the UNIMED contracting entity. If the Contractor on the applicable Order Form or Purchase Order lists:
UNIMED UK Entity-
UNIVERSAL MARINE MEDICAL LIMITED, a private company limited by shares incorporated under the laws of England with registered number 06626061 and whose registered office is at Unit 24a Romsey Industrial Estate, Greatbridge Road, Romsey, Hampshire, SO51 0HR
UNIMED US Entity-
UNIVERSAL MARINE MEDICAL SUPPLY INTERNATIONAL, LLC, a Delaware limited liability company located at 107 Corporate Ct Unit D, South Plainfield, NJ 07080