Terms and Conditions of Sale
Terms and Conditions of Sale of Products and Services
Unless COSMODIC® & SCENAR® LLC and subsidiaries (hereinafter called COSMODIC® & SCENAR®) agrees in writing that other terms and conditions apply to any particular sale or supply of goods or services, the Purchaser’s order is accepted subject to the following terms and conditions, which apply to the whole or any executed part of the order.
1. Price and Payment
a. Prices for all devices, accessories, and other products supplied by COSMODIC® & SCENAR® to the Purchaser are quoted net and EXW (Incoterms, 2000) unless otherwise stated. A packing, handling and delivery charge will be applied to each order unless agreed otherwise in writing.
b. Payment for invoiced amounts is to be made in full within 30 days from invoice date unless agreed otherwise by COSMODIC® & SCENAR® and Purchaser. Until payment in full is received, the property in the Goods remains with COSMODIC® & SCENAR® and, if in the Purchaser’s possession, the Goods will be held by Purchaser as bailee and returned immediately to COSMODIC® & SCENAR® upon demand in unused and undamaged condition. The Purchaser will hold COSMODIC® & SCENAR® indemnified against any claim or liability in respect of the Goods in the meantime. If payment is not received by COSMODIC® & SCENAR® within the agreed period, COSMODIC® & SCENAR® reserves the right to charge interest to the Purchaser at the rate of 1,5% per month on the outstanding balance.
c. Purchaser shall pay all taxes, fees, duty, levy, or charges imposed by any governmental authority. Applicable sales taxes will be invoiced unless Purchaser supplies a valid tax-exempt certificate prior to delivery.
2. Goods
a. Wherever used, “Goods” includes energy healing devices and any associated Goods and accessories, as well as informational and educational products, such as books, DVDs, and such.
b. Changes to Products. COSMODIC® & SCENAR® may from time to time change the design or construction of the Goods. In the event the product and model purchased hereunder is changed prior to shipment, COSMODIC® & SCENAR® shall notify Purchaser, and Purchaser shall be entitled to accept the changed Goods or cancel this Agreement as to that product only and receive a refund of any monies paid to COSMODIC® & SCENAR® in respect thereof. The foregoing shall be Purchaser’s sole remedy for any change to the Goods purchased hereunder prior to delivery, and COSMODIC® & SCENAR® shall have no other liability whatsoever for any such change.
c. Software License. COSMODIC® & SCENAR® grants to Purchaser a limited, non-transferable, non-sublicensable license to use the software embedded in the Goods (the “Software”) and any associated documentation provided hereunder by COSMODIC® & SCENAR® to Purchaser solely for internal use in connection with the Goods purchased hereunder. Purchaser shall not make any copies of the Software.
3. Description
a. Any representation, promise, statement or description by COSMODIC® & SCENAR® or by any officer, employee, consultant, agent, or dealer of COSMODIC® & SCENAR® or any other person is expressly excluded and the Purchaser acknowledges that it has relied solely upon its own inspection, skill, and judgment in placing an order for the Goods or services and not by reason of any such representation, promise, statement or description.
b. All photographs, weights, illustrations, dimensions and any other particulars given in or accompanying a quotation, or contained in descriptive literature are approximate only and deviations therefrom shall not invalidate the contract or be made the basis of any claim made against COSMODIC® & SCENAR®. Clerical errors are subject to correction.
4. Acceptance and Delivery
a. All devices supplied by COSMODIC® & SCENAR® to the Purchaser will be delivered “Ex-Works” (EXW – Incoterms 2000), unless circumstances require that alternative arrangements be made. Such arrangements must be agreed in writing between the Purchaser and COSMODIC® & SCENAR® prior to the dispatch of any product.
b. For all purposes of this Agreement, title and risk of loss shall pass to Purchaser, and delivery shall be deemed completed, upon COSMODIC® & SCENAR®’s tender of the product to a common carrier. Shipments are insured upon specific instructions, for the benefit, and at the expense, of Purchaser. In the event of loss or damage in transit, Purchaser’s payment obligations will not be affected and COSMODIC® & SCENAR® will act as Purchaser’s agent in making any necessary insurance claim.
c. The Purchaser shall inspect all goods immediately upon their arrival and shall, within three (3) days from such inspection, give notice in writing to COSMODIC® & SCENAR® of any matter or thing by reason whereof it is alleged that the goods are not in accordance with the contract. If the Purchaser shall fail to give such notice, the goods shall be deemed to comply in all respects with the contract and the Purchaser shall be bound to accept and pay for the same accordingly.
c. All delivery dates are approximate. COSMODIC® & SCENAR® will deliver in one shipment when possible, but reserves the right, at its sole discretion, to make partial deliveries against any order placed by the Purchaser unless specifically agreed otherwise in writing at the time of order. Partial shipment by COSMODIC® & SCENAR® shall not constitute a basis for a non-conformity claim by Purchaser.
5. Warranties
a. All express or implied terms, conditions, warranties, statements, assurances or representations in relation to any goods or services ordered from, and contracted for supply by, COSMODIC® & SCENAR® are hereby expressly revoked unless:
i. they are expressed in these Terms and Conditions.
ii. they are necessarily implied under any applicable law having jurisdiction over the manufacture or supply of the goods or provision of the services.
iii. they are contained in any other terms and conditions to which COSMODIC® & SCENAR® agrees, in writing, to be bound.
b. Except as may be stated on the Order Form, COSMODIC® & SCENAR® warrants that Devices and accessories not manufactured by COSMODIC® & SCENAR® but supplied by COSMODIC® & SCENAR® to the Purchaser will be free from defects in materials and workmanship and will conform in all material respects to technical specifications in accordance with the manufacturer’s warranty that accompanies the product.
c. COSMODIC® & SCENAR® warrants that products supplied by COSMODIC® & SCENAR® will perform according to their published specifications as long as they are used on or before the specified expiry date of the product and used in accordance with the instructions for use issued by COSMODIC® & SCENAR® and/or the product’s manufacturer.
d. The foregoing limited warranty shall continue for a period of time specified on the Order Form, or if no such period is specified, for twelve (12) months from the date of Purchaser’s receipt of the Goods.
e. During the warranty period, COSMODIC® & SCENAR® shall accept the responsibility for repairing the Goods, at COSMODIC® & SCENAR®’s sole option, by facilitating the process of the actual repair (or replacement) of the Goods by their respective manufacturers. Such repair or replacement protocol shall be COSMODIC® & SCENAR®’s sole obligation and Purchaser’s sole remedy hereunder, and shall be conditioned upon COSMODIC® & SCENAR® receiving written notice of such claimed defect within ten (10) days after its discovery and, at COSMODIC® & SCENAR®’s option, return of the Goods to COSMODIC® & SCENAR®, F.O.B. COSMODIC® & SCENAR®’s facility.
d. The foregoing limited warranty shall not cover the repair of any fault or the replacement of any defective part, device, or materials and shall be void and of no effect if: (a) anyone other than COSMODIC® & SCENAR® or a person acting on COSMODIC® & SCENAR®’s express or written instructions, removes Goods casing or makes or attempts to make any modifications, repairs, attachments or additions to the Goods; (b) the Goods is not maintained or operated in accordance with COSMODIC® & SCENAR®’s instructions, or has been subjected to misuse, abuse, malpractice, abnormal conditions or negligent handling or operation by the Purchaser or its officers, employees, contractors or consultants; or (c) the Goods is resold, leased or rented to or for the use by any person other than the original Purchaser; (d) Purchaser fails to make complete payment to COSMODIC® & SCENAR®. Except as may be stated in the Order Form, used and refurbished Goods do not have any warranties, and Goods not manufactured by COSMODIC® & SCENAR® only have such warranties (if any) as may be provided by the manufacturer.
Exclusions. No representation or warranty shall arise from any description of, or claims regarding, the Goods or its effectiveness or ability to achieve any particular clinical result(s), whether written or oral, contained in specifications, samples, bulletins, marketing or promotional materials or similar statements made or furnished to Purchaser by any person. Use of the Goods requires the exercise of sound medical judgment, and clinical results may vary based on operator skill and experience, patient suitability, patient response to treatment, and other factors beyond the control of COSMODIC® & SCENAR®. COSMODIC® & SCENAR® makes no representation or warranty of revenue or profits from the use of the product, and no such representation or warranty shall arise from projections, studies, illustrations, marketing or promotional materials, or other statements or materials made or furnished to Purchaser by any person.
WARRANTY DISCLAIMER. THE ABOVE LIMITED WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES OF COSMODIC® & SCENAR®, EXPRESS OR IMPLIED, WRITTEN OR ORAL; COSMODIC® & SCENAR® DISCLAIMS AND EXCLUDES ANY IMPLIED WARRANTY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL COSMODIC® & SCENAR® BE LIABLE FOR LOSS OF USE, LOSS OF PROFITS, PUNITIVE DAMAGES, ATTORNEY’S FEES AND EXPENSES, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, OR ANY OTHER DIRECT OR INDIRECT DAMAGES WHATSOEVER.
6. Limitation of Liability
a. COSMODIC® & SCENAR® and the Purchaser hereby agree that, to the extent permitted by law, in the event of any loss, damage or claim arising out of a breach of one or more of the warranties including the manufacturer’s warranties pursuant to clauses 2 (b) and 2 (c) above, the liability of COSMODIC® & SCENAR® is limited to the replacement of the goods or the cost of replacement.
b. The Purchaser’s property under COSMODIC® & SCENAR®’s custody or control will be entirely at the Purchaser’s risk as regards loss or damage thereto or from whatsoever cause arising.
c. COSMODIC® & SCENAR® shall not be subject to nor incur, and the Purchaser hereby releases COSMODIC® & SCENAR® from, any claim, action or liability for consequential loss or damage to persons or property including, without limiting the generality of the foregoing, loss of use of the Goods or services or loss of profits or loss on resale arising by reason of delays, non-delivery, defective materials or workmanship, negligence or any act, matter, conduct or thing done, permitted or omitted by COSMODIC® & SCENAR®.
d. All rejected Goods or defective Goods shall be the property of COSMODIC® & SCENAR® to dispose of as it sees fit.
e. COSMODIC® & SCENAR® accepts no responsibility whatsoever for any Goods that have been:
i. Used for purposes other than those specified in the instructions for use that accompany the Goods.
ii. Repackaged, relabeled or supplied in any way other than in the original presentation as purchased from COSMODIC® & SCENAR®.
iii. Tampered with in any way – including the removal of seals or opening of packaging prior to delivery to the end user.
7. Guarantee and Return of Goods
a. All COSMODIC® & SCENAR® products, except Solaris Energy Blankets, SKENAR, and COSMODIC accessories, and informational products, carry 30-day Customer Satisfaction Guarantee, which can be extended to 60-90 days at COSMODIC® & SCENAR®’s sole discretion in particular circumstances. Such extension will be considered valid only if expressed in writing on the Order Form or in Purchaser’s written communication with COSMODIC® & SCENAR®.
b. During the Customer Satisfaction Guarantee period, purchased Goods can be returned for credit if they fully conform to the terms of purchase and do not carry any defects. All such returns require COSMODIC® & SCENAR®’s prior written consent. In every case, the original invoice number and date must be quoted. Purchaser will be liable for the return costs of delivery.
c. Accepted returns are subject to the charges, terms and requirements notified in writing to Purchaser. Unless agreed in writing otherwise, Purchaser will be charged a 15% restocking fee for all returned goods to cover the temporary use of Goods, COSMODIC® & SCENAR®’s restocking costs and fees and other expenses incurred by the COSMODIC® & SCENAR® as a result of this sale. No acts on the part of COSMODIC® & SCENAR®, including but not limited to, COSMODIC® & SCENAR®’s receipt of returned Goods from Purchaser, shall constitute COSMODIC® & SCENAR®’s approval and acceptance of the returned Goods or a canceled order, unless COSMODIC® & SCENAR® has provided its prior written consent to Purchaser.
d. Where Goods were originally supplied by COSMODIC® & SCENAR® in specialized packaging, any return shall be made in that original packaging and the Goods shall be in their original and unmarked condition, complete with any instructions for use supplied.
e. COSMODIC® & SCENAR® will inspect the returned Goods and issue a credit to Purchaser (minus the agreed restocking fee) ONLY if the Goods are returned fully functional and in acceptable condition. COSMODIC® & SCENAR® reserves the right to refuse return of Goods for credit if: (a) the Goods are returned after the agreed Customer Satisfaction Guarantee period; (b) the Goods were used for purposes other than those specified in the instructions for use that accompany the Goods; (c) the Goods were repackaged, relabeled, or supplied in any way other than in the original presentation as purchased from COSMODIC® & SCENAR®; (d) the Goods were tampered with in any way and anyone other than COSMODIC® & SCENAR® or a person acting on COSMODIC® & SCENAR®’s express or written instructions, removed Goods casing or seals or made or attempted to make any modifications, repairs, attachments or additions to the Goods; (e) the Goods were not maintained or operated in accordance with COSMODIC® & SCENAR®’s instructions, or have been subjected to misuse, abuse, malpractice, abnormal conditions or negligent handling or operation by the Purchaser or its officers, employees, contractors or consultants; or (f) the Goods were resold, leased or rented to or for the use by any person other than the original Purchaser.
f. In case if COSMODIC® & SCENAR® does not approve the returned goods for credit, the Purchaser will be notified in writing and the Goods will be returned to Purchaser.
g. No responsibility will be accepted for any delay in processing a credit for Goods returned caused by Goods being incorrectly branded or returned without adequate identification of both sender and Goods returned.
h. Notwithstanding anything to the contrary contained herein, Purchaser acknowledges that unless Purchaser strictly complies with the returned goods policy set forth in this section, Purchaser’s purchase shall be deemed final and Purchaser shall be deemed to have released COSMODIC® & SCENAR® from (i) any claim for refund or credit, and (ii) any type of damages whatsoever.
8. Delay in Delivery and Force Majeure
a. Delivery and availability dates of the Goods are estimated only and although COSMODIC® & SCENAR® will use its best endeavors to maintain these estimates, no liability is accepted for a delay from any cause whatsoever.
b. If for any cause beyond COSMODIC® & SCENAR®’s control, including but not limited to any act of God, war, strike, lockout, industrial dispute, governmental or semigovernmental award, enactment or order, fire, flood, storm or tempest, delay in obtaining licences, transport, labour or materials, accidents, damage to COSMODIC® & SCENAR®’s works or business or those of its suppliers, COSMODIC® & SCENAR® is prevented from making delivery or performance at the time stipulated, COSMODIC® & SCENAR® shall be entitled at its option either to extend the time for delivery or performance for a reasonable period or to terminate the contract, and the Purchaser shall not, in either case, have any claim for damages and shall pay for all deliveries made or services performed prior to the date of such termination and all expenses incurred and monies paid by COSMODIC® & SCENAR® in connection with the contract.
c. COSMODIC® & SCENAR® does not accept orders under penalty for late delivery.
9. Validity
If any provision(s) of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
10. DISCLAIMER.
COSMODIC® & SCENAR® SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY OR WARRANTY FOR THE PERFORMANCE OF THE GOODS (INCLUDING HARDWARE AND SOFTWARE PRODUCTS) UNLESS SPECIFICALLY NOTED IN WRITING. COSMODIC® & SCENAR® MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING THAT THE GOODS ARE FIT FOR A PARTICULAR PURPOSE OR THAT THE GOODS ARE MERCHANTABLE. PURCHASER AGREES THAT IT HAS SELECTED EACH ITEM OF GOODS BASED UPON ITS OWN JUDGMENT AND DISCLAIMS ANY RELIANCE UPON ANY STATEMENTS OR PRESENTATIONS MADE BY COSMODIC® & SCENAR®. COSMODIC® & SCENAR® SHALL NOT, IN ANY CASE, BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR OTHER SIMILAR DAMAGES ARISING OUT OF OR RELATING IN ANY WAY TO OR FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE OR ANY OTHER THEORY, EVEN IF COSMODIC® & SCENAR® OR ITS AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIABILITY FOR PERFORMING UNDER ANY MANUFACTURER WARRANTY PROGRAM RESTS SOLELY WITH THE SUBJECT MANUFACTURER AND COSMODIC® & SCENAR® HAS NO LIABILITY OR RESPONSIBILITY FOR PERFORMANCE THEREUNDER. This means that COSMODIC® & SCENAR® is not responsible for any cost incurred or as result of lost profits or revenue, loss of use of the Goods, loss of data or the cost of any substitute Goods.
11. Other
a. If these Terms and Conditions of Sale, which shall only be varied, modified or rescinded by written agreement (executed by COSMODIC® & SCENAR®), shall differ in any respect from the Purchaser’s order or COSMODIC® & SCENAR®’s acceptance or confirmation of order, then these Terms and Conditions of Sale shall prevail.
b. COSMODIC® & SCENAR® reserves the right to refuse at its absolute discretion to extend credit to any potential Purchaser or to proceed with any order should the Purchaser’s trade references be unsatisfactory to COSMODIC® & SCENAR®.
c. Statutory taxes and charges will be shown separately in the account for the sale of the Goods and the provision of the service. The amount of the taxes and charges payable in respect of a transaction will be payable by the Purchaser. No allowance will be made for input tax credits or similar credits available to COSMODIC® & SCENAR®. The Purchaser must indemnify COSMODIC® & SCENAR® in respect of all relevant taxes and charges paid and payable by COSMODIC® & SCENAR® in respect of Goods and services sold to the Purchaser.
d. If by any reason of any legislation, government action or other cause beyond COSMODIC® & SCENAR®’s control, any tax, impost, levy, charge, duty or expenditure of any kind, which is not at present chargeable or applicable, is imposed becomes payable or applicable, or is incurred in respect of the Goods and any services hereby sold, it will be to the Purchaser’s account and/or chargeable to the Purchaser by COSMODIC® & SCENAR®.
e. The Purchaser acknowledges and declares that the Purchaser has read and understood these Terms and Conditions prior to the delivery of Goods and any services.