Terms And Conditions
APPROVAL OF ORDERS:Orders must be in writing, via the Luosh USA, LLC (Luosh USA) online store or sent via electronic data interchange. Luosh USA may also choose to accept orders by phone or email exchange. Customer purchase orders for Products are subject to acceptance by Luosh USA, including approval by Luosh USA’s Credit Department. Any statement in a Customer purchase order or other document not expressly approved or acknowledged in writing by Luosh USA is not included in the agreement between the parties.
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Luosh USA may (a) extend credit to qualified Customers after approval of credit application; or (b) reject, delay or cancel any order based on credit requirements, including failure to pay invoices when due. Luosh USA will not be bound by credit terms not confirmed in writing by Luosh USA’s Credit Department. Invoices will be issued when Products ship, but may be batched and mailed. Customers to whom Luosh USA extends credit must pay for Products in full based on payment terms on the invoice. Customer may not take deductions or offsets unless Customer has complied with a written credit memorandum or other documentation from Luosh USA. If Customer’s check is returned because of insufficient funds or for any other reason, additional fees will be assessed. Only Customers in good standing are eligible for special sales, discounts or other programs.
PAYMENT, FINANCE CHARGE, COSTS OF COLLECTION:Payment must be made to the Luosh USA invoice address. Luosh USA’s invoice is past due if not fully paid within stated payment terms. If Customer fails to timely pay an invoice, then, in addition to any other remedies allowed by law, Customer will pay Luosh USA an additional monthly finance charge for each month that any portion of the invoice remains unpaid, the lesser of (a) one and one-half percent (1.5%) or (b) the maximum monthly interest rate allowed by law. Customer also agrees to pay Luosh USA’s reasonable expenses of collection, including but not limited to attorneys’ fees, experts’ fees, and court costs.
Prices are exclusive of Taxes. Customer is responsible for all federal, state, local and foreign taxes, levies and assessments (including value added tax, excise, sales or use taxes) (collectively, Taxes) associated with the purchase of Products. Luosh USA will charge Taxes as required by applicable law or regulation. If Customer provides Luosh USA with valid and complete tax exemption certificates, Luosh USA shall exclude qualifying Taxes from invoice.
Customer shall be provided with a confidential Luosh USA price list. Luosh USA may change prices on any Product at any time without prior notice, except for orders which have been accepted by Luosh USA before the change. Luosh USA may change prices for Products included in an accepted order by giving Customer prior notice. Customer may, as its sole remedy, cancel a pending order, to the extent not fulfilled, by giving Luosh USA written notice within ten (10) days of a price change notice. Customer requests for order changes and cancellations may be canceled at Luosh USA’s discretion. Luosh USA reserves the right to charge a restocking fee if the order has already been processed.
Requests for specific shipping dates will be reasonably honored subject to existing circumstances. Regardless of the date of actual shipment, Customer will not be excused from its obligation to pay for Products when shipped. Unless specified by the purchaser with instructions and payment for shipping, Luosh USA will choose the carrier. Luosh USA may make partial shipments. Delay in shipment or delivery of any particular installment shall not relieve Customer of its obligation to accept remaining shipments. Luosh USA will accept requests for a proof of delivery (P.O.D.) up to sixty (60) days after the invoice date. LUOSH USA SHALL NOT BE LIABLE FOR ANY DAMAGES, WHETHER INCIDENTAL, CONSEQUENTIAL OR OTHERWISE, FOR FAILURE TO FILL ORDERS, DELAYS IN DELIVERY OR ANY ERROR IN FULFILLING ORDERS.
TITLE AND RISK OF LOSS:
Title and risk of loss passes from Luosh USA to Customer upon shipment from Luosh USA’s warehouse (FOB Origin). Freight charges will be added to Customer’s invoice and will include transit insurance if Customer uses Luosh USA’s carrier. If Customer elects to use a different carrier, then Customer assumes risk of insuring shipment.
NON-EXCLUSIVE SALES; UNAUTHORIZED DISTRIBUTION:
All sales by Luosh USA are non-exclusive. Unless authorized by Luosh USA in writing in advance: (a) Customer agrees not to resell, ship, or distribute Products to third parties without written consent of Luosh USA; (b) not to purchase or exchange Luosh USA Products from any source other than Luosh USA; (c) not to resell or distribute Luosh USA Products outside the country to which Luosh USA ships the Customer’s order; and (d) not to resell or distribute Luosh USA Products online. The sale of Luosh USA Products in violation of this section voids Luosh USA’s written and implied warranties where permitted by law.
RELATIONSHIP OF THE PARTIES:
Customer and Luosh USA are independent contractors, and are not authorized to act as an agent of the other. Customer will indemnify, defend and hold harmless Luosh USA against any and all liability—including costs, expenses and reasonable attorneys’ fees—for injury, loss, claims or damages arising from the negligent operation, acts or omissions of Customer or its employees, agents and contractors.
If Customer is outside the United States, and approved by Luosh USA to import Products at the final intended destination, then Customer will be responsible for obtaining required import licenses and making proper customs entry for the Products. For routed export shipments out of the United States, Customer is responsible for meeting applicable United States export regulations and declarations. Customer is not permitted to re-export any Luosh USA Products from the destination country.
RETURNS AND REPLACEMENTS:
All sales are final. Customer must report any discrepancies (e.g. over shipments, under shipments, short shipments, misdelivery, damaged goods, duplicate orders, late shipments) within ten (10) days after receipt or will be deemed to have accepted the Products as shipped. Customer returns are subject to these conditions:
- Request a returned material authorization (RMA) number from Luosh USA’s Customer Service Department before returning the Product. When requesting a RMA, provide the Product serial number. When returning masks and other non-serialized Products, provide the part number(s) and at least one of the following: the original purchase order number; the Luosh USA confirmation number; or the invoice number.
- Mark the RMA number clearly on the outside of all returned boxes and ship to Luosh USA freight prepaid. If Customer fails to do so, Luosh USA reserves the right to refuse the shipment and direct that the shipment be returned to Customer at Customer’s expense.
- The issuance of any credit for returned Product is subject to approval by Luosh USA. Luosh USA reserves the right to charge Customer a five percent (5%) restocking fee, up to two thousand five hundred dollars ($2,500) unless it is an error by Luosh USA communicated within ten (10) days of Customer’s receipt of Product.
Luosh USA reserves the right to not accept return of: (a) Products not in original, unopened packaging. Luosh USA stands behind its product unconditionally. However, obvious abuses of this policy may be denied. Returns due to warranty claims are subject to the applicable provisions of Luosh USA’s limited warranty. Products returned under warranty become the property of Luosh USA. Luosh USA may fulfill warranty requests with a new Product, in like condition, of equal or greater value. Luosh USA will honor the remainder of the warranty.
CHANGES IN PRODUCTS AND POLICIES:
Luosh USA may add, change or stop selling any Product without notice. Customer shall have no claim for Luosh USA’s failure to sell the model, design or type of Products previously sold or for failure to modify Products previously sold.
The sole and exclusive warranty regarding the Luosh USA Products is this limited warranty. The limited warranty is extended exclusively to authorized Customers and their patients (for approved medical use products), and is not transferable or extended to unauthorized purchasers or their customers. Unauthorized purchasers may be required by law to inform their customers that Luosh USA’s limited warranty is void. Luosh USA reserves the unilateral right to modify its limited warranty at any time. Any claim a Customer submits under Luosh USA’s limited warranty must be on behalf of the initial user of the Luosh USA Product.
DISCLAIMER OF WARRANTIES:
EXCEPT FOR THE LIMITED WARRANTY REFERENCED ABOVE, LUOSH USA HEREBY DISCLAIMS AND EXCLUDES ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESSED OR IMPLIED, OF ANY TYPE WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, OR ANY REPRESENTATION OR WARRANTY AS TO THE DESIGN, CONDITION, QUALITY, CAPACITY, MATERIAL, EQUIPMENT OR WORKMANSHIP IN OR OF ANY LUOSH USA PRODUCT. LUOSH USA FURTHER DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT LUOSH USA PRODUCTS ARE COMPATIBLE WITH ANY COMBINATION OF NON-LUOSH USA PRODUCTS USED IN CONNECTION WITH THE LUOSH USA PRODUCTS.
LIMITATION OF LIABILITY:
THE TOTAL LIABILITY OF LUOSH USA, IF ANY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIM OF ANY KIND WHATSOEVER, REGARDLESS OF LEGAL THEORY, WILL NOT BE GREATER THAN THE ACTUAL PURCHASE PRICE OF THE LUOSH USA PRODUCTS WITH RESPECT TO WHICH SUCH CLAIM IS MADE. ALSO, UNDER NO CIRCUMSTANCES WILL LUOSH USA BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES IN CONNECTION WITH THE LUOSH USA PRODUCTS, ANY ORDER FOR LUOSH USA PRODUCTS, THE FURNISHING OF EQUIPMENT, GOODS, PARTS OR SERVICES HEREUNDER, OR THE PERFORMANCE, USE OF, OR INABILITY TO USE ANY EQUIPMENT OR ANY OTHER GOODS, PARTS OR SERVICES, OR ANY OTHER MATTER RELATING TO THE FOREGOING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL OR EQUITABLE THEORY, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR COMPENSATION, REIMBURSEMENT OR LOSS OF PRESENT OR PROSPECTIVE PROFITS, EXPENDITURES, INVESTMENTS, COMMITMENTS, OR CLAIMS OF ANY THIRD PARTY, WHETHER MADE IN THE ESTABLISHMENT, DEVELOPMENT OR MAINTENANCE OF BUSINESS REPUTATION OR GOODWILL, COST OF CAPITAL OR ANY OTHER REASON WHATSOEVER. THIS LIMITATION WILL NOT AFFECT CUSTOMER’S RIGHT TO SEEK APPROPRIATE RELIEF ARISING FROM OR INCIDENT TO ANY DEATH, PERSONAL INJURY OR PROPERTY DAMAGE CONNECTED TO LUOSH USA’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR STRICT LIABILITY IMPOSED BY LAW.
INTELLECTUAL PROPERTY OWNERSHIP:
Subject to any license necessary for Customer’s use of a Luosh USA Product that incorporates software, no transfer of any right, interest, ownership or any intellectual property will occur under this Agreement. Luosh USA retains all interest to software, modifications, improvements, upgrades, derivative works and all other intellectual property rights in connection with the software incorporated in or used by its Products. Customer will have no right to or interest in any Luosh USA intellectual property, including but not limited to copyrights, trade secrets, know how, patents, websites, internet domain name registrations, trademarks or trade names, applied for, owned, used or claimed now or in the future by Luosh USA, its affiliates or licensors.
Luosh USA and Customer will be excused from any default in their obligations hereunder, other than the payment of money due, resulting from any act or event beyond their reasonable control or responsibility, including, but not limited to, acts of God, accident, fire, flood, storm, riot, war, sabotage, explosion, strike, lockout, labor disturbance, national defense requirement, governmental action, law ordinance, rule or regulation, whether valid or invalid, inability to obtain or curtailment of electricity or other types of energy, raw material, labor, component products or transportation, failure of normal sources of supply, or any similar or different contingency that would make performance or timely performance commercially impracticable. The party relying on any of these acts or events of force majeure must give the other notice thereof promptly after it becomes known to that party. If any of these acts or events of force majeure exceed sixty (60) continuous or cumulative days within a quarter, then either party may, as its sole remedy, cancel outstanding orders to the extent not previously fulfilled by giving written notice. Neither party will be liable for damages resulting from such cancelation.
Customer grants permission to Luosh USA to communicate with Customer by mail, email, text, telephone, or facsimile, for the purpose of providing Customer with information about Luosh USA’s Products, pricing and promotions. Customer also grants Luosh USA permission to monitor and record calls between Luosh USA and Customer for quality assurance and training. All notices or communications will be sent by U.S. mail with postage prepaid or by overnight delivery services.
WAIVER: Either Luosh USA’s or Customer’s waiver of the other’s default hereunder will not in any way limit or affect that party’s right to enforce and compel strict compliance at any other time or with any other term or condition.
DEFAULT, TERMINATION AND OTHER REMEDIES:
In addition to any other remedies otherwise available to Luosh USA, all of which are expressly reserved, Luosh USA may immediately terminate these Terms and accelerate any payment owed by Customer following an Event of Default. Upon any termination of these Terms, all rights and obligations of Customer and Luosh USA will cease except those rights and obligations that have accrued before the termination, including but not limited to payment of any amounts due. The following will constitute an Event of Default; (a) Customer’s breach, violation, or failure to perform any of its obligations under any agreement with Luosh USA; (b) Customer’s failure to comply with any applicable policy set forth by Luosh USA; (c) Customer’s insolvency, dissolution or merger with or acquisition by another entity; (d) Customer making an assignment for the benefit of creditors; or ceasing to do business as a going concern; (e) the instituting by or against Customer of any action of bankruptcy, reorganization, receivership, conservatorship or insolvency; or (f) Customer failing to pay any sum owed to Luosh USA upon acquisition of any assets or equity of another Luosh USA customer. Customer agrees to pay all costs and attorneys’ fees for collection, appeal, or execution of judgment.
CHOICE OF LAW; JURISDICTION; VENUE:
These Terms are the entire understanding and agreement between Customer and Luosh USA and supersede any prior oral or written agreements, representations, understandings or discussions between Customer and Luosh USA. These Terms shall be governed by and interpreted in accordance with the laws of the United States and the State of Georgia, excluding choice of law. If any provision of these Terms is held invalid or unenforceable by any court, in whole or in part, that term or condition will be construed and enforced to the greatest extent possible and the validity of the remaining terms and conditions will not be affected. Any action or proceeding between the parties shall be brought in the state or federal court in Marietta, Georgia. The parties submit to the exclusive jurisdiction and venue of Marietta, GA courts for any action and agree that service of process may be effected by delivery to the address used for communications. The parties waive any right to participate in a class action or consolidated action regarding a dispute by joining a disputed claim with the disputed claim of any other person or entity or to assert a disputed claim in a representative capacity on behalf of anyone else in any lawsuit or other proceeding.
The parties certify that they will comply with the federal Anti-Kickback Statute, 42 USC § 1320a-7b(b), with respect to the performance of these Terms. Customer represents and warrants that Customer will abide by all applicable laws related to sale of the Products, and will maintain all applicable licenses or certifications required by law. Customer further agrees to comply with all laws, regulations and instructions relating to: (a) storage and distribution of medical products, (b) medical device record-keeping requirements; and (c) maintaining records of serial and or batch numbers of Products dispensed to patients for non general-use products. Customer further agrees to immediately notify Luosh USA of any circumstance that suggests that a Luosh USA Product has caused or contributed to a death or serious injury, or has malfunctioned in such a way if it were to reoccur would be likely to cause harm (21 CFR 803.50), or such other law as may apply where Customer operates. Specifically,
Customer agrees to:
- Promptly inform Luosh USA of any complaint of injury, safety, Product performance, or an adverse event involving Products;
- Report to Luosh USA all available information with respect to the complaint, including any written, electronic or oral communication that alleges deficiencies related to the identity, quality, durability, reliability, safety, effectiveness or performance of the Product;
- In the case of approved medical use products, maintain records of (i) name of the Product (ii) date the complaint was received (iii) serial and or lot numbers of Product (iv) name, address, and telephone number of the complainant and (v) nature of the complaint;
- Follow Luosh USA’s instructions with respect to any recall or other safety action with respect to Luosh USA Products; and
- In the event Company is unable to comply with point 4 above, provide Luosh USA, for the sole purpose of notification, with a complete list of names and addresses of all patients of the Product affected by a recall.
- Customer shall comply with HIPAA, CAN-SPAM, TCPA, and other relevant privacy laws and regulations applicable in those countries in which Luosh USA does business and in which Customer sells Products. Unless otherwise agreed in writing, Luosh USA’s standard Business Associate.
PROHIBITION OF CORRUPT PRACTICES:
Customer represents and warrants that it has not and, to the Customer’s actual knowledge, none of its employees or agents at any time during the last five years have (i) made any unlawful contribution to any candidate for foreign office, or failed to disclose fully any contribution in violation of law, or (ii) made any payment to any government official, or other person charged with public or quasi-public duties, other than payments required or permitted by applicable law, including the Foreign Corrupt Practices Act or other law against bribery.
NOTICE OF SCREENING:
Luosh USA will periodically check applicable federal and state databases to confirm that Customer is not debarred, suspended, ineligible or excluded from participation in state or federal health care programs (Excluded Entity). Luosh USA does not do business with an Excluded Entity. If Customer is an Excluded Entity, it must immediately notify Luosh USA.
SAMPLES AND EVALUATIONS:
Evaluation products and samples may be provided to Customers in reasonable quantities so as to allow users to assess the appropriate use and functionality of the products. Customer acknowledges and agrees that it shall not sell, bill, or trade evaluation products or samples. Customer further acknowledges and agrees that the delivery or acceptance of any evaluation product or sample is not contingent on any current or future purchase of products.
In some circumstances, discounts, financing arrangements, credits, rebates or other Product incentives that are paid or applied by Luosh USA on the sale of Products can constitute a “discount or other reduction in price” pursuant to the federal Anti-Kickback Statute set forth in 42 U.S.C. § 1320a-7b(b) and the discount safe harbor provisions set forth in 42 C.F.R. § 1001.952(h). Luosh USA and Customer will comply as necessary with all elements of the discount safe harbor regulation, including satisfying all applicable reporting requirements set forth in the safe harbor. In the event Customer receives any request from the Department of Health and Human Services or any state Medicaid program, Luosh USA will provide to Customer additional detailed information as needed. Customer acknowledges that the offer of no charge financing is a convenience to Luosh USA and Customer and is not intended to induce sales of Products.
International Customers agree to comply with all laws and regulations for the country in which they operate. International Customers shall not import Products that do not have applicable regulatory approvals. Customers shall maintain all applicable business licensing in the country in which Customer operates. Customers shall not export or sell Luosh USA Products to other regions without Luosh USA prior written consent.