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terms and conditions

America Cryo General Terms and Conditions of Sale


These general terms and conditions of sale only apply to purchases of America Cryo branded products and related services made directly from America Cryo Company Inc. (“America Cryo”). Purchases made from appointed distributors or other independent resellers will be subject to terms and conditions of sale as may be separately established by each such distributor or reseller, which will in no event be binding upon America Cryo unless otherwise expressly agreed to. However, America Cryo extends the Limited Warranty set forth below to customers purchasing new America Cryo branded products and related services from their local authorized America Cryo distributor. To the extent permitted by applicable law such Limited Warranty is in lieu of all other express or implied warranties, including warranties of merchantability and fitness, which are expressly disclaimed.

These terms and conditions are in effect at the time of sale. Terms and conditions are subject to change for future transactions.

1. GENERAL

These general terms and conditions of sale (along with any associated written specification, quotation and/or supplemental terms and conditions provided by America Cryo) exclusively will govern the sale or licensing by America Cryo of all goods and services (including without limitation, capital equipment (“Equipment”), products listed in Appendix “A” (if applicable), accessories, training, programming, maintenance, engineering, parts, repair and remanufacturing services  furnished to Customer hereinafter “Products”) , whether such sale or licensing is effected by paper-based transactions or via facsimile or other forms of electronic data interchange (“EDI”) or electronic commerce, and represents the entire agreement between Customer and America Cryo with respect thereto. Customer's receipt or acceptance of delivery of any of the Products ordered or purchased hereunder will constitute its acceptance of these terms and conditions. No addition or modification to these terms and conditions will be binding on America Cryo unless agreed to in writing signed by an authorized representative at America Cryo's headquarters located at 51575 Avenida Navarro La Quinta, CA 92253. America Cryo objects to and rejects other terms and conditions that may be proposed by Customer or that appear on or are referenced in Customer's purchase order or requisition that are in addition to or otherwise not consistent with the terms and conditions set forth or referenced herein.

Compliance with Law -The parties hereto agree to comply with all applicable federal, state and local laws, regulations, rules, and orders (“Laws”) in the performance of this Agreement. The Agreement (if applicable) includes List Prices and Contract Prices for each Product to assist Customer in fulfilling its reporting requirements.

Change in Law - In the event there is a change in such Laws or the interpretation thereof by judicial authority or by a governmental agency authorized to enforce any such Laws, such that the provision of the Product or sale of Products pursuant to this Agreement would then be deemed to violate then applicable Law, the parties agree to take no action deemed to be in violation of Law and to enter into good faith negotiations, for such period as the parties may agree, but for no greater than ninety (90) days (the “Renegotiation Period”), to renegotiate the terms of this Agreement in good faith to restructure their relationship to comply with Law and to fulfil, to the maximum extent possible the legitimate expectations of the parties as of the Effective Date of this Agreement. If any such restructuring is not agreed to after good faith negotiations within the Renegotiation Period, this Agreement will terminate at the end of the Renegotiation Period, or sooner upon agreement of termination by the parties.


2. PAYMENT TERMS

Net thirty (30) days from date of invoice with ongoing approved credit as determined by America Cryo. America Cryo may render partial invoices and require progressive payments. America Cryo reserves the right to render invoices electronically and to receive payment by way of electronic funds transfer. Payment by credit card, when permitted, is subject to credit card validation and authorization both at time of agreement and immediately prior to shipment. Without prejudice to any other right or remedy, America Cryo reserves the right to suspend any further performance hereunder or otherwise in the event payment is not made when due. To the extent permitted by applicable law, no payment by offset is permitted. Interest charges will be added to overdue invoices at the interest rate of 1.5% per month (subject to any limit imposed by applicable law) as well as any necessary recovery costs provided by the applicable law.

3. SHIPPING

We can ship to virtually any address in the world. Note that there are restrictions on some products, and some products cannot be shipped to international destinations.

When you place an order, we will estimate shipping and delivery dates for you based on the availability of your items and the shipping options you choose. Depending on the shipping provider you choose, shipping date estimates may appear on the shipping quotes page.

Please also note that the shipping rates for many items we sell are weight-based. The weight of any such item can be found on its detail page. To reflect the policies of the shipping companies we use, all weights will be rounded up to the next full pound.

4. INDEMNITY (INCLUDING INTELLECTUAL PROPERTY)

Except as excluded herein, America Cryo will defend any suit or proceeding brought against Customer arising out of a claim that the design or construction of the Products sold or licensed hereunder by America Cryo knowingly or unknowingly but with gross negligence infringes any patent, copyright or trademark granted or registered in the country of America Cryo’s shipping destination, provided (a) Customer promptly notifies America Cryo in writing of any such claim and any suit or proceeding, (b) at America Cryo’s expense, Customer gives America Cryo the sole right to defend, settle and control the defence of the suit or proceeding, (c) Customer provides all necessary information and assistance for such defence or settlement, and (d) Customer takes no position adverse to America Cryo in connection with such claim. In the event America Cryo is obligated to defend such suit or proceeding, America Cryo will pay all costs and damages finally awarded or agreed upon by America Cryo that are directly related thereto. America Cryo’s obligations under this paragraph will be fulfilled if America Cryo, at its option and expense: (i) procures for Customer the right to continue using such Products, (ii) replaces the same with non-infringing equipment/software having functionality similar to that of the Products, (iii) modifies the Products to make them non-infringing while retaining similar functionality, or (iv) if (i)-(iii) are not commercially practicable, refunds to Customer the purchase price of the affected Products in exchange for their return. America Cryo will have no obligation to defend or for any other liability with respect to: [a] any suit or proceeding to the extent based on or arising out of a configuration or modification made, specified or requested by Customer and which is incorporated into or constitutes the Products, [b] the use of the Products in a process or application specified, requested or controlled by Customer or any third parties, or [c] the use of the Products in combination with other equipment, software or materials not supplied by America Cryo  . As used in this paragraph, the term “Products” shall mean only America Cryo’s standard hardware and software that are generally commercially available, and expressly excludes third-party-branded equipment/software TO THE EXTENT PERMITTED BY APPLICABLE LAW., THIS PARAGRAPH IS IN LIEU OF ALL WARRANTIES OR REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, THAT THE PRODUCTS WILL BE FREE OF THE RIGHTFUL CLAIM OF ANY THIRD PARTY BY WAY OF INFRINGEMENT OR THE LIKE.

Customer shall indemnify, defend, and hold harmless America Cryo and its respective affiliates, officers, directors, and employees from and against all third party claims, liabilities, damages, or other expenses, including reasonable attorneys’ fees, whether to person (including bodily injury or death) or property, to the extent that such damage or injury is related in any manner to: (i) the negligent or intentional acts or omissions of the Customer, its officers, agents, employees, independent contractors or assigns; or (ii) the breach of the terms and conditions of this Agreement by the Customer or (iii) any use of resterilised single use medical devices.

5. RESALE OF THIRD-PARTY BRANDED PRODUCTS AND SERVICES

NOTWITHSTANDING ANY OTHER PROVISION HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AMERICA CRYO MAKES NO REPRESENTATIONS, PROVIDES NO INDEMNITIES (INTELLECTUAL PROPERTY OR OTHERWISE), AND DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED AND INCLUDING ANY IMPLIED WARRANTY OF MECHANTABILITY OR FITNESS, RELATIVE TO ANY THIRD-PARTY BRANDED PRODUCT OR SERVICE (INCLUDING TRAINING) WHICH MAY BE RESOLD OR SUBLICENSED BY AMERICA CRYO   AS A DISCRETE ITEM HEREUNDER.

6. PACKING AND MARKING

Customer-specified packing or marking may be subject to additional charges not otherwise included in the price of the Products.

7. WEIGHTS AND DIMENSIONS

Published or advertised weights and dimensions are estimates or approximations only and are not warranted.

8. PRICES

Prices and other information shown in any America Cryo publication (including product catalogues and brochures) are subject to change without notice and to confirmation by specific quotation. Such publications are not offers to sell and are maintained only as a source of general information. Prices do not include sales, use, excise, customs, value-added or similar taxes. Customer will pay or reimburse America Cryo for all such taxes as may be applicable. Time and material services will be provided in accordance with America Cryo’s published service rates (including applicable overtime and travel expenses) in effect as of the date such services are provided, unless otherwise confirmed by America Cryo’s written quotation or order acknowledgment. Billable service time includes travel time to and from the job site and all time America Cryo’s representatives are available for work and waiting (whether on or off the job site) to perform the services.

9. CHANGES AND SUBSTITUTIONS

Customer-requested order changes, including those affecting the identity, scope and delivery of the Products, must be documented in writing and are subject to America Cryo’s prior written approval and adjustments in price, scheduling and other affected terms and conditions. In any event, America Cryo   reserves the right to reject any change that it deems unsafe, technically inadvisable or inconsistent with established engineering or quality guidelines and standards, or incompatible with America Cryo’s design or manufacturing capabilities. America Cryo further reserves the right to substitute using the latest superseding revision or series or equivalent Product having comparable form, fit and function.

10. RETURNS

You may return most new, unopened items within 14 days of delivery for a full refund, except the deduction of the shipping cost if you receive free shipping at the time of your order.

Any device or body wraps that has been used cannot be returned.

You should expect to receive your refund within three weeks of giving your package to the return shipper, however, in many cases you will receive a refund more quickly. This time period includes the transit time for us to receive your return from the shipper (5 to 10 business days), the time it takes us to process your return once we receive it (3 to 5 business days), and the time it takes your bank to process our refund request (5 to 10 business days).

If you need to return an item, simply login to your account, view the order using the "Complete Orders" link under the My Account menu and click the Return Item(s) button. We'll notify you via e-mail of your refund once we've received and processed the returned item.

11. ORDER CANCELLATION

Cancellation by Customer prior to shipment is permitted only by written notice and upon payment to America Cryo of reasonable cancellation and restocking charges, including reimbursement for direct costs. Cancellation charges associated with orders for custom Products or Products specifically manufactured to Customer's specification may equal the actual selling price of the Products. America Cryo has the right to cancel an order for cause at any time by written notice, and America Cryo will be entitled to cancellation and restocking charges as identified above.

12. FORCE MAJEURE

America Cryo will not be liable for any loss, damage or delay arising out of its failure (or that of its subcontractors) to perform hereunder due to causes beyond its reasonable control, including without limitation, acts of God, of civil or military authority, fires, strikes, floods, epidemics, pandemics, quarantine restrictions, war, riots, acts of terrorism, delays in transportation, or transportation embargoes. In the event of such delay, America Cryo’s performance date(s) will be extended for such length of time as may be reasonably necessary to compensate for the delay.

13. GOVERNMENT CLAUSES AND CONTRACTS

Application of government contract regulations and clauses to the Products or the Agreement evidenced by these terms and conditions are subject to the separate review and consent by an authorized representative at America Cryo’s headquarters. Products sold or licensed hereunder are not intended to be used, nor should they be used, in any nuclear-related application either as a "Basic Component" as defined under United States nuclear regulations or under similar nuclear laws and regulations of any other country or otherwise.

14. EXPORT CONTROL

Products and associated materials supplied or licensed hereunder may be subject to various export laws and regulations. It is the responsibility of the exporter to comply with all such laws and regulations. Notwithstanding any other provision herein to the contrary, in the event that U.S. or California or Nevada local law requires export authorization for the export or re-export of any Product or associated technology, no delivery can be made until such export authorization is obtained, regardless of any otherwise promised delivery date. In the event that any required export authorization is denied, America Cryo will be relieved of any further obligation relative to the sale and/or license and delivery of the Product(s) subject to such denial without liability of any kind relative to Customer or any other party. In any such event, America Cryo shall be entitled to compensation for any direct costs incurred. America Cryo will not comply with boycott related requests except to the extent permitted by U.S. law and then only at America Cryo’s discretion.

15. DISPUTES

The parties will attempt in good faith promptly to resolve any dispute arising hereunder by negotiations between representatives of the parties who have authority to settle the dispute. If unsuccessful, the parties further will attempt in good faith to settle the dispute by non-binding third-party mediation, with mediator fees and expenses apportioned equally to each side. Any dispute not so resolved by negotiation or mediation may then be submitted to a court of competent jurisdiction in accordance with the terms hereof. Notwithstanding the dispute resolution procedure outlined in this section, America Cryo has the right to take any action at its discretion for any injunctive, interim or interlocutory relief in any jurisdiction without having to complete all or any part of the dispute resolution procedure. These procedures are the exclusive procedures for the resolution of all such disputes between the parties.

16. TERMINATION

America Cryo may terminate this Agreement in whole or in part without any cause at any time and for any reason upon thirty (30) days prior written notice to the Customer. Upon notice of termination, America Cryo shall immediately stop all shipments of the Products. Customer shall pay America Cryo for Products satisfactorily provided to the Customer.

America Cryo may terminate the Agreement in whole or in part for cause upon thirty (30) days written notice if the Customer fails to comply with any material term or condition of this Agreement.

17. GOVERNING LAW AND FORUM

The Agreement evidenced hereby and all disputes arising there under will be governed by and interpreted in accordance with the internal laws and will be subject to the exclusive jurisdiction of the courts of the state, province or other governmental jurisdiction in which America Cryo’s principal place of business resides specifically 51575 Avenida Navarro, La Quinta, CA 92253, but specifically excluding the provisions of the 1980 UN Convention on Contracts for the International Sales of Goods. Notwithstanding the exclusive jurisdiction outlined in this section, America Cryo has the right to take action in any other jurisdiction as its discretion for any injunctive, interim or interlocutory relief in any jurisdiction. Should any term or provision hereof be held wholly or partly invalid or unenforceable under applicable law, the remainder of the Agreement evidenced hereby will not be affected thereby.

18. ASSIGNMENT

The Agreement evidenced hereby may not be assigned by either party without the prior written consent of the other (which consent will not be unreasonably withheld). However, consent will not be required for internal transfers and assignments as between America Cryo   and its parent company, subsidiaries or affiliates as part of a consolidation, merger or any other form of corporate reorganization.

19. CUSTOMER RESPONSIBILITIES

The Customer agrees to operate the Equipment in accordance with applicable laws and regulations within the Customer’s jurisdiction. This includes all relevant local, state, and federal laws and regulations.

The Customer agrees to operate, store, and maintain the medical devices or the Equipment (“if applicable”) in accordance with its Instructions For Use (“IFU”).

Furthermore, any violation of this clause will automatically release America Cryo from any direct or indirect legal or statutory liability on the part of America Cryo.

Where and when applicable, the Customer agrees to maintain the Equipment and the medical devices according to the preventative maintenance instructions and schedules.

Customer will not resell or redistribute Equipment or medical devices to entities or persons, except with America Cryo’s prior written consent.

Customer covenants not to use the Equipment in conjunction with any unauthorized products, items, consumables, disposables, equipment or parts. Customer specifically agrees that America Cryo shall not be liable for damages, personal injury or death if the Equipment is used in conjunction or with any unauthorized products, items, consumables, disposables, equipment or parts.

Customer specifically agrees that America Cryo shall not indemnify Customer for claims resulting in damages, personal injury or death if the Equipment is used in conjunction or with any unauthorized products, items, consumables, disposables, equipment or parts.

Customer specifically agrees and acknowledges that America Cryo shall not be liable for damages, personal injury or death if the Products are resterilized and re-used on end-users.

Customer specifically agrees and acknowledges that America Cryo shall not indemnify Customer for claims resulting in damages, personal injury or death if the Products are resterilized by a third-party and re-used on end-users.

Customer specifically agrees and acknowledges that America Cryo’s Product warranty is void if the Products are resterilized by a third-party and re-used on end-users.

If and when America Cryo maintains title to the Equipment, the Customer is responsible for the Equipment while it is located at the Customer. If the Equipment is misused, lost, stolen, damaged, or rendered inoperable in any manner, the Customer is responsible for its replacement or repair. The Customer will keep the Equipment free of charges or any security interests and will not pledge or grant a security interest of any kind in any Equipment to anyone.

20. CONFIDENTIALITY

Customer and its designated representatives agree that any information regarding America Cryo’s operations, pricing, strategic plans, or other proprietary information to which Customer becomes privy will be considered confidential and held in confidence by Customer unless: (i) it is, or later becomes without any fault of the Customer, public domain information; (ii) it was known by Customer before disclosure without any obligation of confidentiality; or (iii) is independently developed by Customer or independently learned from another source without an obligation of confidentiality. Customer shall not issue any press release or announcement or use America Cryo’s name, brand, or logo in promotional activity, or otherwise publicly announce or comment on this Agreement, without America Cryo's prior written consent.

21. INSURANCE

At all times during the Term of the Agreement, America Cryo shall maintain, at its expense, insurance coverage for America Cryo's activities that are insurable and are customarily insured by most manufacturers. All insurance policies required shall be issued by licensed insurance companies. America Cryo shall provide to Customer, on request, an insurance certificate indicating the foregoing coverage.

 

22. TRAINING

America Cryo will provide training for the customer’s ground personnel with regard to operating and maintenance of the equipment. The training is a combination of online documents/videos and zoom training offered by America Cryo as an after sale service to the customer. For the medical devices and machines, training is mandatory.

22. WARRANTY

The provisions hereunder do not cover the legal guarantee, which should apply according to the applicable law.
To the extent permitted by law, this Warranty is valid only to the original purchaser of America Cryo Products directly from a America Cryo authorised agent. The original purchaser cannot transfer the Warranty.

Equipment

America Cryo warrants the Equipment against defects in materials and workmanship to the registered owner at the time of purchase. All components of the equipment are covered by the warranty. Under this Limited Warranty, if any covered Product is proved to be defective in materials or workmanship, America Cryo will replace or repair, in its absolute and sole discretion, any such Product, less any charges to America Cryo for transportation and labor costs incidental to inspection, removal or restocking of the Product. The length of the warranty is two (2) years from shipment date for the machines and devices, and six ( 6 ) months for the accessories. 

This Limited Warranty applies only to new, original factory delivered Products that have been used for their normal and intended uses. America Cryo’s limited warranty shall not apply to America Cryo Products which have been resterilized, repaired, altered, or modified in any way and shall not apply to America Cryo Products which have been improperly stored or improperly installed, operated, or maintained contrary to America Cryo’s instructions.
This warranty does not apply to any unit which has been subject to misuse, neglect, improper installation, or that which has been altered, adjusted, or tampered with by any person other than America Cryo authorized personnel.

If upon examination by authorized service personnel, it is determined that the malfunction is due to misuse or abuse, warranty provisions will not apply. An estimate of the cost of repair work will be given to the Customer prior to servicing and repairing the unit.

The Customer is responsible for returning the defective Product to America Cryo at Huck Med Tech, attn : America Cryo. 111 Cash street, Jacksonville, 75766, TX or to a specified address if different at his or her own expense. If customer is returning medical devices, the Customer shall obtain a return authorization number before shipping the units back. If customer is returning equipment, a service call is required prior to shipping the equipment. America Cryo at its sole discretion can repair the unit or ship a new one. The units are to be shipped freight pre-paid for both the warranty period and out of warranty. Under this Limited Warranty, if it is determined by America Cryo that the Product is defective in materials or workmanship, costs of shipping will be covered by America Cryo.

If, upon examination, it is determined that the fault had been caused by misuse or abnormal conditions of operation, the repairs will be billed to the Customer as out-of-warranty repairs.

Products repaired under America Cryo standard repair program will be issued a thirty (30) day warranty against defects in both materials and workmanship, provided the original warranty period has passed. Products submitted due to defects in materials and workmanship during the thirty (30) day warranty period will be repaired at no charge to the Customer, and costs of shipping will be covered by America Cryo.


(i)    Disclaimer and Limitation of Liability

To the extent permitted by applicable law: (i) the Limited Warranty set forth herein is exclusive and in lieu of all other warranties, remedies, obligations and liabilities of America Cryo, expressed or implied, including the implied warranties of merchantability and fitness for a particular USE OR purpose and (ii) any warranty other than set forth herein is expressly disclaimed.

The remedy set forth herein shall be the exclusive remedy for any warranty claim, and additional damages, including consequential damages OR DAMAGES FOR BUSINESS INTERRUPTION OR LOSS OF PROFIT, REVENUE, MATERIALS, ANTICIPATED SAVINGS, DATA, CONTRACT, GOODWILL OR THE LIKE (WHETHER DIRECT OR INDIRECT IN NATURE) OR FOR ANY OTHER FORM OF INCIDENTAL, OR INDIRECT DAMAGES OF ANY KIND, shall not be available to the extent permitted by applicable law. These Products are being sold only for the purpose described herein, such warranty only runs to the purchaser, unless otherwise provided by law.  Unless prohibited by applicable law, i America Cryo cannot be liable for any breach of warranty in any amount exceeding the purchase price of the Product. AMERICA CRYO  'S MAXIMUM CUMULATIVE LIABILITY RELATIVE TO ALL OTHER CLAIMS AND LIABILITIES, INCLUDING OBLIGATIONS UNDER ANY INDEMNITY, WHETHER OR NOT INSURED, WILL NOT EXCEED THE COST OF THE PRODUCT(S) GIVING RISE TO THE CLAIM OR LIABILITY. AMERICA CRYO   DISCLAIMS ALL LIABILITY RELATIVE TO GRATUITOUS INFORMATION OR ASSISTANCE PROVIDED BY, BUT NOT REQUIRED OF AMERICA CRYO   HEREUNDER. ANY ACTION AGAINST AMERICA CRYO   MUST BE BROUGHT WITHIN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF ANY OTHER CONTRARY PROVISION HEREOF AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, AND FURTHER WILL EXTEND TO THE BENEFIT OF AMERICA CRYO'S VENDORS, APPOINTED DISTRIBUTORS AND OTHER AUTHORIZED RESELLERS AS THIRD-PARTY BENEFICIARIES, UNLESS OTHERWISE REQUIRED BY LAW. EACH PROVISION HEREOF WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY OR CONDITION OR EXCLUSION OF DAMAGES IS SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND IS TO BE ENFORCED AS SUCH.

In any case, America Cryo will not be held responsible for any loss or liability caused by any of customer’s act or omission.

To the extent permitted by applicable law, in any claim or lawsuit for damages arising from alleged breach of warranty, breach of contract, negligence, product liability or any other legal or equitable theory, the Customer specifically agrees that America Cryo shall not be liable for damages or for loss of profits, whether from Customer or Customer’s customer. America Cryo’s liability shall be limited to the purchase cost to Customer of the specified goods sold by America Cryo to Customer which give rise to the claim for liability, except in cases such limitations are prohibited by law.

No agent, employee or representative of America Cryo has the authority to bind the Company to any other warranty, affirmation or representation concerning the Product. Use of any America Cryo   Product shall be deemed acceptance of the terms and conditions herein.

This Limited Warranty shall not apply to any products not manufactured by America Cryo. If applicable, the manufacturer’s warranty, liability, and insurance policies shall govern.