TERMS & CONDITIONS
1. AGREEMENT These Standard Terms and Conditions of Sale (“Terms and Conditions”) are a part of the written order (“Order”) between the purchaser specified in the Order (“Buyer”) and The Seaberg Company, Inc. d/b/a “SAM Medical Products” (“SAM Medical”) for Buyer’s purchase of products (“Products”) from SAM Medical. SAM Medical will not be bound by any term, condition, or provision which is different from or in addition to these Terms and Conditions which is proffered by Buyer in any purchase order, receipt, acceptance, confirmation, correspondence, or otherwise, unless SAM Medical agrees to such provision in writing. SAM Medical’s acceptance of any Order by Buyer is expressly conditioned on Buyer’s agreement to these Terms and Conditions. Buyer acknowledges that Product specifications are subject to change at any time without notice to Buyer.
2. PURCHASE AND SALE SAM Medical will sell to Buyer, and Buyer will accept and pay for all Products ordered by Buyer pursuant to an Order which has been accepted by SAM Medical. All Orders are subject to acceptance by SAM Medical in writing. Buyer agrees to a two percent (2%) shortfall on SAM Splints that require private labeling on the quantity of Products set forth in any Order submitted by Buyer.
3. SHIPPING AND DELIVERY Unless otherwise agreed to by SAM Medical in writing, all Orders submitted by Buyer will be shipped FOB point of shipment using a commercial carrier selected by SAM Medical.
4. DISTRIBUTOR PRICE AND PAYMENT Buyer will pay SAM Medical the prices specified in SAM Medical’s Distributor Pricelist in effect on the date that the Order is accepted by SAM Medical. All prices are in United States dollars, FOB point of shipment, and do not include any sales, use or other taxes. Buyer will pay or reimburse SAM Medical for all shipping costs, taxes and other amounts payable to governmental authorities in connection with the applicable transactions or will provide SAM Medical with an exemption certificate satisfactory to SAM Medical. Prepayment is required for the first two orders submitted by Buyer (Visa®, MasterCard®, or American Express®). After establishing credit, asset forth above, Buyer will pay the amount set forth on SAM Medical’s invoice within thirty (30) days from the date of such invoice. Any amount not paid within such thirty (30) day period will be subject to a finance charge equal to 1.5%, determined and compounded daily from the date due until the date paid. Payment of such finance charges will not excuse or cure Buyer’s breach or default for late payment. Buyer will reimburse any costs or expenses (including reasonable attorneys’ fees) incurred by SAM Medical to collect any amount not paid when due. SAM Medical may accept any payment in any amount without prejudice to SAM Medical’s right to recover the balance of the amount due or to pursue any other right or remedy.
5. MINIMUM SALES PRICE Buyer agrees not to advertise or sell any of the Products below the lowest allowable retail price listed in SAM Medical’s Distributor Pricelist. This includes, but is not limited to, sales and advertising utilizing print, web, radio, television and other media, and includes sales and advertising at tradeshows and conventions.
6. LIMITED WARRANTY; REMEDIES AND RETURNS SAM Medical warrants each Product to be free from defects in performance for its intended use for a period of one (1) year (the “Warranty Period”) from its initial sale to Buyer. In the event of failure of a Product during the Warranty Period, SAM Medical will, at its option, repair or replace such failed Product free of charge except where a Product has been subject to abuse, accident, alteration, medication, tampering, negligence or misuse. Products returned to SAM Medical by Buyer shall be accepted only with a returned material authorization number obtained from SAM Medical subject to the following: (a) Products returned after thirty (30) days are subject to a twenty percent (20%) restocking charge; (b) Products returned must be shipped to SAM Medical freight prepaid and must be in sellable condition and in current stock by SAM Medical; (c) Products held for more than one hundred eighty (180) days from the date of invoice by SAM Medical may not be returned by Buyer; (d) Products with an expiration date held for more than sixty (60) days from the date of invoice by SAM Medical may not be returned by Buyer; and (e) Products that are custom labeled and/or packaged may not be returned by Buyer. Damages or shortages should be noted on all freight bills and reported immediately to SAM. If damage is discovered upon opening containers, buyer should notify the freight company and request a concealed damage inspection report. No adjustment by means of credit or a duplicate shipment can be made until SAM received the damaged
shipment or proper documentation of shortage. Orders placed for custom labeled and/or packaged products are noncancelable. Additionally, customer must take delivery of finished goods produced under custom orders within 60 days of being manufactured.
7. PRODUCT LIABILITY INDEMNIFICATION SAM Medical will defend and indemnify Buyer against any third party claim arising out of bodily injury or death, if and to the extent
caused by any defect in the design or manufacture of the Products, provided that Buyer: (a) gives SAM Medical prompt written notice of the claim; (b) allows SAM Medical to assume control of the defense and settlement of the claim; (c) assists and cooperates with SAM Medical in connection with the defense and settlement of the claim; and (d) does not settle the claim without SAM Medical’s prior written consent. This paragraph will not apply to any claim arising out of the negligence of Buyer or any third party.
8. DISCLAIMER AND RELEASE The warranties, obligations, and liabilities of SAM Medical and the remedies of buyer set forth in these terms and conditions are exclusive and in substitution for, and buyer hereby waives, releases and disclaims, all other warranties, obligations and liabilities of SAM Medical and all other rights, claims and remedies of buyer against SAM Medical, express or implied, arising by law or otherwise, with respect to the products and any other goods or services delivered under these terms and conditions, including, but not limited to: (a) any implied warranty of merchantability or fitness for a particular purpose; (b) any implied warranty arising from course of performance, course of dealing or usage of trade; (c) any obligation, liability, right, claim or remedy in tort, whether or not arising from the negligence (active, passive or imputed), product liability or strict liability of SAM Medical; and (d) any obligation, liability, right, claim or remedy for infringement.
9. EXCUSED PERFORMANCE SAM Medical will not be responsible for or be considered to be in breach of or default under these Terms and Conditions on account of any cause beyond SAM Medical’s reasonable control or not occasioned by SAM Medical’s fault or negligence (including, but not limited to, SAM Medical’s inability to procure materials, parts, equipment or services.)
10. LIMITATIONS OF LIABILITY SAM medical’s liability (whether in contract, tort or otherwise, and notwithstanding any fault, negligence, strict liability or product liability of SAM Medical) with regard to any product or other goods or services furnished under these terms and conditions will not exceed the purchase price paid by buyer to SAM Medical for the same. Further, SAM Medical will not be liable for any special, incidental, consequential or indirect damages, or for loss of revenue, loss of business or other financial loss, arising out of or in connection with any product or other goods or services furnished under these terms and conditions.
11. INTELLECTUAL PROPERTY RIGHTS The products involve valuable patent, copyright, trademark, trade secret and other intellectual property rights of SAM Medical. SAM Medical reserves all such rights. No title to or ownership of any intellectual property rights related to any Product is transferred to Buyer pursuant to these Terms and Conditions. Buyer will not attempt to reverse engineer any Product or component thereof or to otherwise misappropriate, circumvent or violate any of SAM Medical’s intellectual property rights.
12. SEVERABILITY The invalidity or unenforceability of any provision of these Terms and Conditions will not affect the other provisions hereof, and these Terms and Conditions will be construed in all respects as if such invalid or unenforceable provision were replaced with a valid and enforceable provision as similar as possible to the one replaced.
13. NONWAIVER Any failure by SAM Medical to insist upon or enforce performance by Buyer of any of these Terms and Conditions or to exercise any right or remedy under these Terms and Conditions or applicable law will not be construed as a waiver or relinquishment to any extent of SAM Medical’s right to assert or rely upon any such provision, right or remedy in that or any other instance.
14. ASSIGNMENT These Terms and Conditions will inure to the benefit of and be binding upon SAM Medic al and Buyer and their respective successors, assigns and legal representatives.
15. GOVERNING LAW These Terms and Conditions will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of Oregon, without reference to its choice of law principles.
16. ENTIRE AGREEMENT These Terms and Conditions constitute the entire agreement between SAM Medical and Buyer with regard to the Products and any Orders submitted by Buyer. No amendment, modification, or waiver of these Terms and Conditions will be valid unless set forth in writing by SAM Medical.
Placement of an order indicates acceptance of the terms and conditions listed on this site.
- Misprints - Merchandise, prices and specifications are subject to change without notice. Descriptive, typographic, or photographic errors are subject to correction at any time without notice.
RX Only Product - Customers buying prescription-only (Rx) devices acknowledge they are licensed and/or certified to make these purchases and assume all liability associated with their purchase and use.
The sale, use, application or operation of the medical device being or to be purchased may be subject to certain laws, rules and regulations promulgated by federal, state and local regulatory agencies, and, in the case of overseas customers, the sale, use, application, operation and import may also be subject to certain laws, rules and regulations by similar and/or other governmental agencies having jurisdiction.
By buying or accepting to buy this medical device through this site you acknowledge and represent that you are a legally authorized purchaser, and licensed to use this medical device for your own use, and/or you are authorized to purchase this medical device on behalf of another person or entity legally authorized to purchase or use this medical device.
You are solely responsible for compliance verification from government agencies having jurisdiction, including, but not limited to those mentioned above, to determine your eligibility or of the end-user you represent for the purchase and use of this medical device.
You agree to release, hold harmless and waive any and all claims, causes of actions, damages, including consequential damages and/or loss of use, or liabilities of any kind or nature against SAM Medical, which may arise as a result of failure by you or the end user you represent to comply with any eligibility requirements and the use or misuse of this medical device
US Distribution Only - Customers acknowledge they are not distributing purchased product outside of the United States. Customers outside the US should contact SAM Medical to find a local distributor.
- Not for Resale - Customers acknowledge they are purchasing product for their personal and professional use and not for resale.
- Coupon Codes - Coupon codes must be added at time of purchase to receive discount. Only one coupon code may be applied per order.
DISCLAIMER AND RELEASE. THE WARRANTIES, OBLIGATIONS, AND LIABILITIES OF SAM MEDICAL AND THE REMEDIES OF BUYER SET FORTH IN THESE TERMS AND CONDITIONS ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND BUYER HEREBY WAIVES, RELEASES AND DISCLAIMS, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF SAM MEDICAL AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF BUYER AGAINST SAM MEDICAL, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE PRODUCTS AND ANY OTHER GOODS OR SERVICES DELIVERED UNDER THESE TERMS AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; (C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE (ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY OR STRICT LIABILITY OF SAM MEDICAL; AND (D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR INFRINGEMENT.
LIMITATIONS OF LIABILITY. SAM MEDICAL’S LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE, AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY OF SAM MEDICAL) WITH REGARD TO ANY PRODUCT OR OTHER GOODS OR SERVICES FURNISHED UNDER THESE TERMS AND CONDITIONS WILL NOT EXCEED THE PURCHASE PRICE PAID BY BUYER TO SAM MEDICAL FOR THE SAME. FURTHER, SAM MEDICAL WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, OR FOR LOSS OF REVENUE, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS, ARISING OUT OF OR IN CONNECTION WITH ANY PRODUCT OR OTHER GOODS OR SERVICES FURNISHED UNDER THESE TERMS AND CONDITIONS.
GOVERNING LAW; VENUE. These Terms and Conditions will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of Oregon, without reference to its choice of law principles. To the extent the parties are permitted under these Terms and Conditions to initiate litigation in a court, both you and SAM Medical agree that all claims and disputes arising out of or relating to these Terms and Conditions will be litigated exclusively in either a small claims court of competent jurisdiction or the state or federal courts located in Portland, Oregon.
DISPUTE RESOLUTION. Please read the following arbitration agreement carefully (the “Arbitration Agreement”). It requires you to arbitrate disputes with SAM Medical and limits the ways in which you can seek relief from SAM Medical.
a. Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of this website, to any products sold or distributed through the website, or to any aspect of your consumer relationship with SAM Medical, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or SAM Medical may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). THIS ARBITRATION AGREEMENT SHALL APPLY, WITHOUT LIMITATION, TO ALL CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THESE TERMS AND CONDITIONS OR ANY PRIOR VERSION OF THESE TERMS AND CONDITIONS.
IF YOU AGREE TO ARBITRATION WITH SAM MEDICAL, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST SAM MEDICAL ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE COMPANY IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS THESE TERMS AND CONDITIONS, INCLUDING THIS ARBITRATION AGREEMENT.
b. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim and the relief sought to our registered agent at The Seaberg Company, Inc. d/b/a SAM Medical Products, c/o Larry D. Moomaw, 4145 SW Watson Ave., Ste. #515, Beaverton, OR 97005. The arbitration will be conducted by the Arbitration Service of Portland (“ASP”), an established alternative dispute resolution provider. Disputes shall be subject to ASP’s Procedural Rules available for review at http://www.arbserve.com/pages/proceduralrules14.htm (the “Rules”). The Rules are also available at www.arbserve.com or by calling ASP at 800-423-1216. If ASP is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay ASP’s filing, administrative, hearing, and/or other fees and cannot obtain a waiver from ASP, SAM Medical will pay them for you. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
c. Authority of Arbitrator. The arbitrator, and not any federal, state, or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and SAM Medical. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Terms and Conditions (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
d. Waiver of Jury Trial. YOU AND SAM MEDICAL HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and SAM Medical are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section (a) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms and Conditions as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
e. Waiver of Class or Consolidated Actions. YOU AND SAM MEDICAL AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR REPRESENTATIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If this paragraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead disputes shall be resolved in a court as set forth in Section (a) above.