Media Duplication Systems (MDS) Terms and Conditions of Sale
PLEASE READ THIS DOCUMENT VERY CAREFULLY.
THESE TERMS AND CONDITIONS OF SALE APPLY TO ANY AND ALL PURCHASES OF PRODUCTS OR SERVICES BY YOU (â€œCUSTOMERâ€) FROM MDS. BY PLACING AN ORDER ON MDS'S WEBSITE (THE â€œSITEâ€) OR, IF CUSTOMER PLACED AN ORDER BY OTHER MEANS, BY ACCEPTING DELIVERY OF THE PRODUCTS AND SERVICES DESCRIBED IN MDS'S INVOICE OR OTHER MDS'S DOCUMENTATION, CUSTOMER ACCEPTS AND AGREES TO THE TERMS AND CONDITIONS CONTAINED HEREIN, UNLESS CUSTOMER AND MDS HAVE SIGNED A SEPARATE WRITTEN AGREEMENT OF PURCHASE AND SALE, IN WHICH CASE SUCH AGREEMENT WILL GOVERN.
These terms and conditions of sale, together with your order information, constitute the entire agreement between Customer and MDS with respect to the purchase of products or services by Customer from MDS on the Site and constitute a binding contract between Customer and MDS. Any additional or different terms in any forms delivered by Customer are hereby deemed to be material alterations and notice of objection to them and rejection of them is hereby given and any such attempt to alter, modify or replace these terms and conditions will be null and void and of no effect, unless explicitly agreed to by MDS in writing. Customer consents to receiving electronic records, which may be provided via a Web browser or e-mail application connected to the Internet; individual consumers may withdraw consent to receiving electronic records or have the record provided in non-electronic form by contacting MDS at the address provided below. Customer may issue a purchase order for administrative purposes only. Any terms and conditions contained in any such purchase order will be null and void. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these terms and conditions of sale or any purchase order or invoice related thereto.
Title; Risk of Loss
If Customer provides MDS with Customer's carrier account number or selects a carrier other than a carrier that regularly ships for MDS, title to products and risk of loss or damage shall pass from MDS to Customer upon shipment from MDS's facility. For all other shipments, title to products and risk of loss or damage shall pass from MDS to Customer upon receipt by Customer. Notwithstanding the foregoing, title to any and all software products will remain with the applicable licensor(s) and Customer's rights therein are contained in the license agreement between such licensor(s) and Customer. MDS retains a security interest in the products until payment in full is received. Customer will be responsible for all shipping and related charges.
Products obtained from MDS by Customer may be subject to U.S. or Canadian government export control laws and regulations. Customer will comply with such regulations whenever it exports or re-exports controlled products or technical data obtained from MDS. In addition, Customer acknowledges that, manufacturers' warranties for products may vary or may be null and void for products exported or used by Customer outside of USA and Canada.
International Product Shipment
- All purchases from Customer with a "Ship To" address outside of the United States or Canada will be made pursuant to the following INCOTERMS 2010 term: "DAT (airport terminal, airport in country of importation), seller responsible for delivery to buyer's door at buyer's risk, after buyer has satisfied all customs formalities in country of importation."
Title to the Products will transfer from Seller to Customer when the Products reach the designated terminal at the designated airport in the country of importation.
- Risk of loss of or damage to the Products will also transfer from Seller to Customer when the Products reach the designated terminal at the designated airport in the country of importation.
- Seller will use commercially reasonable efforts to arrange for the delivery of the Products to Customer's location. However, Customer will bear all risk of loss of or damage to the Products from the point when the Products reach the designated terminal at the designated airport in the country of importation until the point when the Products reach Customer's location.
- All shipping charges will be paid by Customer and will include insurance for the Product while in transit.
- Customer must obtain, at its own risk and expense, any import license or other official authorization required by the country of importation.
- Customer must pay any duty, excise tax or other comparable fees and carry out all customs formalities for the import of the Products, in the country of importation.
- The Terms and Conditions of Sales and Services and the Terms and Conditions of International Product Shipment will govern Product(s) shipped outside the United States regardless of any other agreement between Customer and Seller.
Warranties on products not manufactured by MDS: Customer understands that MDS is not the manufacturer of the products purchased by Customer hereunder and the only warranties offered are those of the manufacturer, not MDS and not any affiliate of MDS. In purchasing the products, Customer is relying on the manufacturer's specifications only and is not relying on any statements, specifications, photographs or other illustrations representing the products that may be provided by MDS or any of its affiliates. In connection with services, neither affiliates of MDS nor third party service providers are agents of MDS and MDS has no obligation or liability arising from any services performed by or any warranty, if any, made by, such service providers. MDS AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, OR CONDITIONS RELATED TO PRODUCTS SOLD OR SERVICES PROVIDED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR THAT THE PRODUCTS OR SERVICES WILL MEET CUSTOMER'S NEEDS OR WILL BE ERROR FREE. THIS DISCLAIMER DOES NOT AFFECT THE TERMS OF THE MANUFACTURER'S WARRANTY, IF ANY. Pricing Information; Availability Disclaimer All pricing is subject to change. MDS reserves the right to make adjustments to pricing, products and service offerings for reasons including, but not limited to, changing market conditions, product discontinuation, product unavailability, manufacturer price changes and errors in advertisements. All orders are subject to product availability. Therefore, MDS cannot guarantee that it will be able to fulfill Customer's orders. Website Currency; Currency accepted on this store is United States Dollars only. Any other currencies shown are for your information only as payment will always be processed in USD.
Limitation of Liability
NEITHER MDS NOR ITS AFFILIATES WILL BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS, OR ANY CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. NEITHER MDS NOR ITS AFFILIATES WILL BE LIABLE FOR PRODUCTS NOT BEING AVAILABLE FOR USE OR FOR LOST OR CORRUPTED DATA OR SOFTWARE OR THE PROVISION OF SERVICES BY THIRD PARTIES. CUSTOMER AGREES THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCTS OR SERVICES PROVIDED BY MDS OR ITS AFFILIATES, NEITHER MDS NOR ITS AFFILIATES WILL BE LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES IN EXCESS OF THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCT(S) OR SERVICE(S) GIVING RISE TO THE CLAIM; OR (B) $50,000.00 (IN Rs.3,482,424.04).
MDS will not be responsible for any delays in delivery which result from any circumstances beyond its control, including without limitation, product unavailability, carrier delays, delays due to fire, severe weather conditions, failure of power, labour problems, acts of war, terrorism, general insurrection, acts of God or acts of any government or agency. Any shipping dates provided by MDS are estimates only.
Third Party Services
Customer acknowledges and agrees that, in some instances, MDS is a reseller of services and is not the provider of those services. In those cases, the third party service provider is the only party responsible for providing services to Customer. In those cases, Customer will look solely to the third party service provider for any loss, claims or damages arising from or relating to the purchase or provision of such services. Customer hereby releases MDS and its affiliates from any and all claims arising from or relating to the purchase or provision of any such services by third party service providers.
Any claim, dispute, or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including, but not limited to, statutory, common law, intentional tort and equitable claims) arising from or relating to the Products, the Services, the interpretation or application of these Terms and Conditions or any Statement of Work or the breach, termination or validity thereof, the relationships which result from these Terms and Conditions or any Statement of Work (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories hereto), or Seller's or any of its Affiliates' advertising or marketing (collectively, a "Claim") WILL BE RESOLVED, UPON THE ELECTION OF ANY OF SELLER, CUSTOMER OR THE THIRD PARTIES INVOLVED, EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. If arbitration is chosen, it will be conducted pursuant to the Rules of the American Arbitration Association. If arbitration is chosen by any party with respect to a Claim, neither Seller nor Customer will have the right to litigate that Claim in court or to have a jury trial on that Claim or to engage in pre-arbitration discovery, except as provided for in the applicable arbitration rules or by agreement of the parties involved. Further, Customer will not have the right to participate as a representative or member of any class of claimants pertaining to any Claim. Notwithstanding any choice of law provision included in these Terms and Conditions, this arbitration agreement is subject to the United States Federal Arbitration Act (9 U.S.C. Â§Â§ 1-16) or Arbitration Act, 1991 (Ontario). Any court having jurisdiction may enter judgment on the award rendered by the arbitrator(s). Each party involved will bear its own cost of any legal representation, discovery or research required to complete arbitration. The existence or results of any arbitration will be treated as confidential. Notwithstanding anything to the contrary contained herein, all matters pertaining to the collection of amounts due to Seller arising out of the Products or Services will be exclusively litigated in court rather than through arbitration.
Orders; Payment Terms; Interest; Taxes
Orders are not binding upon MDS until accepted by MDS. Terms of payment are within MDS's sole discretion. Invoices are due and payable within the time period specified on the invoice, measured from the date of invoice. MDS may invoice Customer separately for partial shipments. Customer agrees to pay interest on all past-due sums at the lower of: two percent (2%) per month (24% per year); or at the highest rate allowed by law. Customer is responsible for, and will indemnify and hold MDS harmless from, any applicable sales, use, value-added, goods and services, harmonized sales or other taxes or any fees, assessments, levies or other amounts, including without limitation any environmental fees or waste disposal assessments or levies, whether State, Provincial, Federal or other applicable governmental level, associated with the order. Customer must claim any exemption from tax and, if applicable, from any fees, assessments or levies, at the time of purchase and provide the necessary supporting documentation. Any sales, use, value-added, goods and services, harmonized sales or other applicable tax and any fees, assessments or levies are based on the location to which the order is shipped. In that regard, MDS may require Customer to provide a declaration declaring and certifying the location of the supply of the product. In the event of a payment default, Customer will be responsible for all of MDS's costs of collection, including court costs, filing fees and legal fees.
- Please contact MDS Customer Service at firstname.lastname@example.org, Monday - Friday from 10:00am - 5:00 pm (EST) to obtain a Return Merchandise Authorization (RMA) before returning your product. This will expedite and help ensure the proper action or credit upon processing.
- In order to expedite a return, please have the following information on hand when requesting an RMA number: Customer number, invoice number, serial number, reason for return, and whether the box has been opened or is manufacturer sealed.
- Please return all products 100% complete including all original manufacturer boxes with the UPC code and packing materials, all manuals, blank warranty cards, accessories and any other documentation included with the original shipment. RMA approval is partially contingent upon products being 100% complete.
- Customer is responsible for shipping charges for all products being shipped for return.
- Customer is responsible for all risk of loss and damage to products being shipped for return. Please fully insure return shipment in case of loss or damage. Please use a carrier that is able to provide you with proof of delivery and tracking capabilities. This is for your protection as well as to ensure quick action on your return.
- Return privileges vary by manufacturer and include but not limited to:
- No returns accepted with no exceptions,
- Returns for repair or exchange,
- Returns with restocking fee applied if product still sealed/not opened,
- Returns with re-stocking fee applied if product opened, and
- Returns with no restocking fee applied. There are no refunds for services rendered. Shipping and Insurance fees are buyers responsibility and are not refundable. Absolutely no refunds and/or credits after 30 (thirty) days from date of invoice. Please contact MDS Customer Service at email@example.com or 954.320.6045 for details.
- Return shipping address will be provided by customer service representative after RMA is granted.
- Failure to return a product within the applicable return period will be deemed to be an acceptance of the product.
If Customer receives damaged products; please refuse the products upon original delivery attempt. If damaged products are accepted from the carrier, such damage should be noted on the carrier delivery record. Please save the product and the original box and packaging and notify MDS immediately to arrange for a carrier inspection and a pick up of damaged products. Please notify MDS Customer Service at firstname.lastname@example.org or 954.320.6045 of damaged products WITHIN 48 HOURS of receipt. Timely receipt of this information is necessary to successfully file a damage claim with the carrier.
Use of Personal Information
BY INSTALLING OR USING MANUFACTURED MDS PRODUCTS, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IN NO EVENT WILL MDS BE LIABLE (WHETHER UNDER THIS AGREEMENT, RESULTING FROM THE PERFORMANCE OR USE OF MDS PRODUCTS, OR OTHERWISE) FOR ANY AMOUNTS REPRESENTING LOSS OF PROFITS, LOSS OR INACCURACY OF DATA, LOSS OR DELAYS OF BUSINESS, LOSS OF TIME, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY, PROPERTY DAMAGE, OR INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF A PURCHASER OR USER OF MDS PRODUCTS OR ANY THIRD PARTY. MDSâ€™S AGGREGATE LIABILITY IN CONTRACT, TORT, OR OTHERWISE (WHETHER UNDER THIS AGREEMENT, RESULTING FROM THE PERFORMANCE OR USE OF MDS PRODUCTS, OR OTHERWISE) TO A PURCHASER OR USER OF MDS PRODUCTS SHALL BE LIMITED TO THE AMOUNT PAID BY THE PURCHASER FOR THE MDS PRODUCT. THIS LIMITATION OF LIABILITY WILL BE EFFECTIVE EVEN IF MDS HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. MDS MAKES EVERY EFFORT TO ENSURE PROPER OPERATION OF ITS PRODUCTS. HOWEVER, THE PURCHASER IS RESPONSIBLE FOR VERIFYING THAT THE OUTPUT OF A MDS PRODUCT MEETS THE PURCHASERâ€™S REQUIREMENTS. THE PURCHASER FURTHER ACKNOWLEDGES THAT IMPROPER OPERATION OF MDS PRODUCTS CAN CAUSE LOSS OF DATA, DEFECTIVE FORMATTING, OR DEFECTIVE DATA LOADING. MDS WILL MAKE EFFORTS TO SOLVE OR REPAIR ANY PROBLEMS IDENTIFIED BY PURCHASER, EITHER UNDER THE WARRANTY SET FORTH BELOW OR ON A TIME AND MATERIALS BASIS.
FOR ONE YEAR FROM THE DATE OF SALE (THE â€œWARRANTY PERIODâ€) MDS WARRANTS THAT THE PRODUCT (EXCLUDING CABLES, ADAPTERS, AND OTHER â€œCONSUMABLEâ€ ITEMS) IS FREE FROM MANUFACTURING DEFECTS IN MATERIAL AND WORKMANSHIP. THIS LIMITED WARRANTY COVERS DEFECTS ENCOUNTERED IN THE NORMAL USE OF THE PRODUCT DURING THE WARRANTY PERIOD AND DOES NOT APPLY TO: PRODUCTS DAMAGED DUE TO PHYSICAL ABUSE, MISHANDLING, ACCIDENT, NEGLIGENCE, OR FAILURE TO FOLLOW ALL OPERATING INSTRUCTIONS CONTAINED IN THE OPERATING MANUAL; PRODUCTS WHICH ARE MODIFIED; PRODUCTS WHICH ARE USED IN ANY MANNER OTHER THAN THE MANNER FOR WHICH THEY WERE INTENDED, AS SET FORTH IN THE OPERATING MANUAL; PRODUCTS WHICH ARE DAMAGED OR DEFECTS CAUSED BY THE USE OF UNAUTHORIZED PARTS OR BY UNAUTHORIZED SERVICE; PRODUCTS DAMAGED DUE TO UNSUITABLE OPERATING OR PHYSICAL CONDITIONS DIFFERING FROM THOSE RECOMMENDED IN THE OPERATING MANUAL OR PRODUCT SPECIFICATIONS PROVIDED BY MDS; ANY PRODUCT WHICH HAS HAD ANY OF ITS SERIAL NUMBERS ALTERED OR REMOVED; OR ANY PRODUCT DAMAGED DUE TO IMPROPER PACKAGING OF THE WARRANTY RETURN TO MDS. AT MDSâ€™S OPTION, ANY PRODUCT PROVEN TO BE DEFECTIVE WITHIN THE WARRANTY PERIOD WILL EITHER BE REPAIRED OR REPLACED USING NEW OR REFURBISHED COMPONENTS AT NO COST. THIS WARRANTY IS THE SOLE AND EXCLUSIVE REMEDY FOR DEFECTIVE PRODUCTS. IF A PRODUCT IS HAS BECOME OBSOLETE OR IS NO LONGER SUPPORTED BY MDS THE PRODUCT MAY BE REPLACED WITH AN EQUIVALENT OR SUCCESSOR PRODUCT AT MDSâ€™S DISCRETION. THIS WARRANTY EXTENDS ONLY TO THE END PURCHASER OF MDS PRODUCTS. THIS WARRANTY DOES NOT APPLY TO, AND IS NOT FOR THE BENEFIT OF, RESELLERS OR DISTRIBUTORS OF MDS PRODUCTS. UNLESS OTHERWISE AGREED IN WRITING BY MDS, NO WARRANTY IS PROVIDED TO RESELLERS OR DISTRIBUTORS OF MDS PRODUCTS. IN ORDER TO RECEIVE WARRANTY SERVICES CONTACT MDSâ€™S TECHNICAL SUPPORT DEPARTMENT VIA PHONE OR E-MAIL. PRODUCTS RETURNED TO MDS FOR REPAIR UNDER WARRANTY MUST REFERENCE A MDS RETURN MATERIAL AUTHORIZATION NUMBER (â€œRMAâ€). ANY PRODUCT RECEIVED BY MDS WITHOUT AN RMA# WILL BE REFUSED AND RETURNED TO PURCHASER. THE PURCHASER MUST CONTACT MDSâ€™S TECHNICAL SUPPORT DEPARTMENT VIA E-MAIL (SUPPORT@mdsfirst.COM) OR VIA PHONE AT +1.954.320.6045 TO OBTAIN A VALID RMA#. THE PURCHASER MAY BE REQUIRED TO PERFORM CERTAIN DIAGNOSTIC TESTS ON A PRODUCT PRIOR TO MDS ISSUING AN RMA#. THE PURCHASER MUST PROVIDE THE PRODUCT MODEL, SERIAL NUMBER, PURCHASER NAME AND ADDRESS, EMAIL ADDRESS AND A DESCRIPTION OF THE PROBLEM WITH AS MUCH DETAIL AS POSSIBLE. REASONABLE TELEPHONE AND EMAIL SUPPORT ARE ALSO AVAILABLE FOR THE LIFE OF THE PRODUCT AS DEFINED BY MDS. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT, MDS PRODUCTS ARE PROVIDED AS-IS AND AS-AVAILABLE, AND MDS DISCLAIMS ANY AND ALL OTHER WARRANTIES (WHETHER EXPRESS, IMPLIED, OR STATUTORY) INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.