Terms Of Sale
The terms and conditions of this invoice apply to all products (“Products”) and/or services (“Services”)
purchased by Buyer from Seller. These Terms of Sale supersede the terms and conditions of any written
agreement between the parties, unless such written agreement is executed by an authorized
representative of Seller, any Buyer purchase order or other document, or any oral agreement between
the parties. In the event of any conflict or inconsistency between these Terms of Sale and a separate
document signed by both parties, the terms of the separate document signed by both parties shall control.
No provision in either party’s purchase order or in any other business form employed by either party,
excluding a separate document signed by both parties, will supersede these Terms of Sale. No prior
course of dealing or usage of trade shall affect this invoice or be admissible to explain, modify, or
contradict this invoice and the agreement arising therefrom (collectively “Agreement”). For purposes of
this Agreement, the term “Supplier” means a manufacturer, supplier, or other supplier of a Product that
is purchased by Seller for distribution.
1. Credit and Payment. All payments for Products and/or Services must be received by Seller Net
within thirty (30) days from the date of invoice, unless otherwise agreed to by the parties. Any
invoiced amount remaining unpaid after thirty (30) days shall be “past due.” Past due balances
are subject to an interest charge of one and one-half percent (1.5%) per month. Any interest
charged and collected in excess of applicable state law shall be returned. If Buyer fails to pay
any or all of the invoiced amount when due or if Buyer’s credit or financial status erodes or
otherwise renders Seller insecure, Seller may, in its sole discretion, without further notice
immediately: (i) suspend Seller’s performance or cancel all or any part of an order hereunder,
(ii) change any payment term to a payment term determined by Seller (including imposing the
requirement of cash payment upon delivery); (iii) pay any incentives, rebates, fees, or other
discount arrangements net of any amounts due hereunder, and any unauthorized deductions and
service charges and terminate and/or declare Buyer ineligible for any incentives, rebates, fees, or
other discount arrangements; (iv) declare immediately due and payable all other amounts
invoiced by Seller to Buyer regardless of when such payments would otherwise be due from
Buyer, and/or (v) increase the prices for Products and/or Services. Any discrepancy between any
order placed by Buyer and Seller’s corresponding shipment(s) must be reported to Seller for
resolution within ten (10) days of Seller’s invoice date, except for price or payment discrepancies
or any claims for reimbursement, which must be reported to Seller for resolution within thirty (30)
days of Seller’s invoice date. Seller shall have no obligation to resolve and Buyer shall hold
Seller harmless and waives any rights to any discrepancy or to issue any credit or refund, or to
replace any goods if claim therefore is not made within said applicable ten (10) or thirty (30) day
period. All requests for proof of delivery for reasons other than shipment, price or payment
disputes must be made within sixty (60) days of Seller’s invoice date. If the payment term due
date falls on a weekend day or holiday, payment is due and payable on the succeeding business
2. Chargebacks. In consideration of Seller allowing Buyer to purchase Products at discounted
prices, Buyer agrees that Seller will be paid the difference between Seller’s acquisition cost and
the discounted price of the Product from the applicable Supplier (“Chargeback(s)”). In the event
Seller is denied any Chargeback from a Supplier as a result of Buyer providing incomplete,
inaccurate, or incorrect information to Seller or Supplier, Buyer will be liable to Seller for such
3. Reporting and Disclosure Obligations. THE PRICES ON THIS INVOICE MAY BE SUBJECT
TO REBATES, CREDITS AND OTHER PRICE ADJUSTMENTS. BUYER IS OBLIGATED TO
PROPERLY DISCLOSE AND APPROPRIATELY REFLECT ALL DISCOUNTS, INCLUDING
REBATES, IN CLAIMS AND COSTS SUBMITTED TO FEDERAL AND STATE GOVERNMENT
HEALTH CARE PROGRAMS (INCLUDING MEDICARE AND MEDICAID), AND TO PROVIDE
THIS INVOICE AND OTHER DISCOUNT DOCUMENTATION TO GOVERNMENT
AUTHORITIES ON REQUEST, IN ACCORDANCE WITH ALL APPLICABLE LAWS AND
REGULATIONS, INCLUDING 42 USC 1320A-7B(B) AND THE DISCOUNT SAFE HARBOR.
4. Shipment, Risk of Loss and Title. Shipment of Products per routine order to Buyer and
subsequent back orders related to the original shipment shall be shipped FOB Destination,
except for drop shipments which shall be shipped in accordance with Supplier’s shipping policies.
The cost of shipment, if any, has been paid by Seller and added to this invoice. Emergency
orders, rush orders, orders for Products not regularly stocked by Seller’s local servicing
distribution center, Products dropped shipped from Supplier, and orders not regularly scheduled
are subject to an added shipping and handling charge determined by Seller and disclosed to
Buyer prior to or at the time of order. Seller shall have the right to ship the Products at all times
via its own vehicle or a carrier selected by Seller.
5. Minimum Order Requirement. Minimum orders may be subject to Seller’s minimum order
requirement in effect and quoted at the time of order. For orders less than such minimum order
requirement or orders placed via telephone or facsimile, Seller may add to the invoice a handling
charge determined by Seller and disclosed to Buyer prior to or at the time of order.
6. Product Recommendations. Seller may make available to Buyer certain recommendations
concerning products that are comparable, functionally equivalent, clinically equivalent, or
equivalent to other products used or identified by Buyer (“Equivalency Recommendations”).
Buyer agrees and stipulates that in making any Equivalency Recommendation, Seller is relying
solely on the independent skill, knowledge and judgment of its Suppliers or others in the industry
and is not independently providing medical product information upon which Buyer can rely in
order to make its product selection decision. Buyer agrees and stipulates that in making product
decisions Buyer is relying on its independent professional judgment. Buyer hereby agrees to
waive, release, indemnify and hold Seller and its affiliates harmless from any claim arising from
an Equivalency Recommendation. Buyer agrees and stipulates that it is a sophisticated user of
medical products and it agrees and stipulates that it is a learned intermediary between Seller and
the end user/patient.
THESE EQUIVALENCY RECOMMENDATIONS MAY BE MADE VERBALLY, IN WRITING OR
VIA A DATABASE. THE EQUIVALENCY RECOMMENDATIONS ARE RECOMMENDATIONS
ONLY AND ARE NOT REPRESENTATIONS OR WARRANTIES CONCERNING ANY
PRODUCT PERFORMANCE OR EQUIVALENCY AND ANY SUCH REPRESENTATIONS OF
WARRANTY ARE HEREBY DISCLAIMED. THESE EQUIVALENCY RECOMMENDATIONS
ARE BASED UPON MATERIALS SUPPLIED BY BUYER’S SUPPLIER AND OTHER
7. Data. Buyer acknowledges that Seller will provide information and reports to group purchasing
organizations, Suppliers, and other third parties relating to Buyer’s purchases from Seller. Buyer
hereby waives any rights of confidentiality with respect to such information to the extent
necessary to allow Seller to provide such information to group purchasing organizations,
Suppliers, and other third parties.
8. Resale of Products. Buyer hereby certifies that it is purchasing Products from Seller for its own
use. Products are not for resale. Buyer shall purchase Products from Seller for its own use and
shall not resell or redistribute Products.
9. Return Goods Policy. Subject to applicable law, Seller will process returned goods for Products
purchased from Seller, in accordance with its then standard Return Goods Policy. Seller’s
current Return Good Policy is as follows:
All requests for return of Products must be pre-approved by Seller’s customer service
department. Not all items are returnable. Some items may require additional restocking
fees. A credit will not be issued for items returned without pre-approval.
All returned Products must be: (i) returnable to Supplier; (ii) in the original unopened
packaging; and (iii) in resalable condition, unless such Products are not in original unopened
packaging or resalable condition due to the fault of Seller.
The amount of credit on any given return, as described below, will be issued no later than
thirty (30) days after the receipt of the merchandise and necessary documentation and the
examination and inspection of such return at the local Seller distribution center.
Product that are: (a) special order Products; (b) Custom Products; or (c) Products not
available for general or unrestricted distribution are not returnable.
Products shipped in error by Seller and nonconforming Products – FULL CREDIT – if
returned within thirty (30) days of date of invoice.
Products shipped in error by Seller and nonconforming Products not returned within thirty
(30) days are not returnable.
Products shipped that are damaged or do not meet Seller standard quality – FULL CREDIT –
if returned within thirty (30) days of date of invoice.
Products shipped that are damaged or do not meet Seller’s standard quality not returned
within ninety (90) days of invoice are not returnable.
Locally stocked Products returned within thirty (30) days of date of invoice – FULL CREDIT.
Locally stocked Products returned after thirty (30) days of date of invoice – 15%
Non-locally stocked Products that are returned within thirty (30) days of date of invoice – 15%
RESTOCKING CHARGE (plus any additional costs incurred in returning such Products to the
Non-locally stocked Products that are not returned within thirty (30) days of date of invoice
are not returnable.
Returned items that require a pedigree under applicable law, such as prescription drugs,
must be accompanied by the appropriate signed declaration from Buyer. For Buyers in the
State of Florida the signed declaration must be signed within seven (7) days of the original
invoice date. Failure to comply results in NO CREDIT.
Notwithstanding anything above to the contrary, Buyer shall receive FULL CREDIT on any
Products returned as the result of a recall or defective condition.
10. Excusable Delays. If a party is unable, wholly or in part, by reason of an act of God or any other
reason beyond the reasonable control of the party, including unavailability of Products, to carry
out its obligations hereunder (other than the obligation to make money payments), that party shall
give the other party written notice thereof with reasonable particulars concerning it. During the
period of delay, the obligations of all parties hereunder (other than the obligation to make money
payments), shall be suspended. The affected party shall use reasonable due diligence to
continue performance as quickly as possible.
Except for the obligation to pay money, a party will not be liable to the other party for any failure
or delay in performance caused by fires, shortage of materials or transportation, government acts,
acts of terrorism, or any other matters beyond the first party’s reasonable control, and such failure
or delay will not constitute a material breach of this Agreement.
11. Taxes; Enforcement Costs. All amounts payable to Seller under this Agreement are exclusive
of all sales, use, value-added, withholding, and other taxes and duties. Buyer will promptly pay,
and indemnify Seller against, all taxes and duties assessed in connection with any such amounts,
this Agreement and its performance by any authority within or outside of the U.S., except for
taxes payable on Seller’s net income.
In the event it becomes necessary for either party to take action to collect any sums due or
enforce any other provisions of this Agreement, the prevailing party shall be entitled to recover all
costs and expenses of collection, including without limitation, reasonable attorney’s fees and
12. Time for Bringing Action. Any action of any kind arising out of or in any way connected with
this Agreement, other than collection of outstanding payment obligations, must be commenced
within one (1) year upon which the cause of action accrued.
13. Non-Disposable Products. Non-disposable Products, such as furniture and equipment, sold by
Seller may be refurbished or reconditioned.
14. Disclaimer. SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND,
EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY OF ANY PRODUCTS OR THEIR
FITNESS FOR ANY PARTICULAR USE OR PURPOSE. BUYER SHALL LOOK TO
MANUFACTURER OF PRODUCTS AND THE PROVIDER OF SERVICE FOR ANY WARRANTY
THEREON. NO AGENT, EMPLOYEE, OR REPRESENTATIVE OF SELLER HAS ANY
AUTHORITY TO MAKE ANY AFFIRMATION, REPRESENTATION, OR WARRANTY
CONCERNING PRODUCTS NOT SET FORTH IN THIS AGREEMENT.
BUYER SHALL NOT HOLD SELLER LIABLE FOR ANY DEFECT IN PRODUCTS OR
SERVICES, REGARDLESS OF KIND. BUYER AGREES TO FILE SOLELY WITH
MANUFACTURER OF THE PRODUCTS OR THE PROVIDER OF SERVICE ANY CLAIM OR
LAWSUIT ALLEGING LOSS, INJURY, DAMAGE, OR DEATH ARISING OUT OF OR CAUSED
BY THE USE, SALE, DISTRIBUTION, OR POSSESSION OF PRODUCTS OR SERVICES.
IN NO EVENT SHALL SELLER BE LIABLE TO BUYER UNDER, IN CONNECTION WITH, OR
RELATED TO THIS AGREEMENT FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE,
OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT,
WARRANTY, TORT, PRODUCT LIABILITY, OR OTHERWISE, (INCLUDING LOST PROFITS)
FROM ANY CAUSE, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM
ANY UNAVAILABILITY OF, DEFECT IN, OR MISSHIPMENT OF PRODUCTS OR THE
PROVISION OF SERVICES, AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE.
15. Assignment. Buyer shall not assign or transfer any interest under any order accepted by Seller
or delegate any obligation hereunder without the prior written consent of Seller.
16. Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Virginia, without any construction or interpretation against Buyer or
Seller. Buyer and Seller irrevocably consent to the exclusive jurisdiction of the state courts of
Henrico County, Virginia and the federal courts situated in Richmond, Virginia, in connection with
any action to enforce the provisions of this Agreement, to recover any damages or to obtain any
other relief with respect to any matter connected with or arising from this Agreement or the
transactions contemplated therein, including without limitation, breach or default under this
Agreement, or otherwise arising under or by reason of this Agreement.
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