These Terms and Conditions for Personal Protective Equipment Orders (the “Terms”) apply to any order of personal protective equipment from MQ Direct LLC. or any of its parents, subsidiaries, and affiliates(“MQ Direct”). Personal protective equipment includes, but is not limited to , the following products: , face masks, hand sanitizer, face shields, medical masks, surgical masks, exam gloves, gowns, goggles, wipes or any other items that may protect, treat, diagnose or mitigate against disease or the spread of disease (collectively, “PPE”).
1. Incorporation By Reference; Precedence of Documents. These Terms are incorporated by reference to any order of PPE a customer places with MQ Direct. In the event of any discrepancy between the Terms and any existing or future document (e.g. quotes, order acknowledgments, purchase orders, agreements, invoices, terms and conditions, etc.) for PPE, the provisions of these Terms shall control. Any different terms contained in any other existing or future document (e.g. quotes, order acknowledgments, purchase orders, agreements, invoices, terms and conditions, etc.) are expressly not part of the Terms and MQ Direct hereby continuously objects to any such different terms.
2. Disclaimer. UNLESS EXPRESSLY NOTED OTHERWISE ON A MQ DIRECT PRODUCED DOCUMENT THAT MAKES DIRECT REFERENCE TO THE TERMS, CUSTOMER ACKNOWLEDGES THAT THE PPE PRODUCTS SOLD ARE NOT MEDICAL GRADE PRODUCTS AND HAVE NOT BEEN APPROVED BY THE FDA FOR USE IN A MEDICAL OR HEALTHCARE SETTING. MQ DIRECT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PPE PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY WITH RESPECT TO FITNESS FOR A PARTICULAR PURPOSE OR THAT THE PRODUCTS PREVENT INFECTION OR THE TRANSMISSION OF DISEASES. CUSTOMER AGREES THAT THE USE OF THE PPE PRODUCTS ARE AT ITS OWN RISK.
3. Cancelation. Customer acknowledges that in certain instances MQ Direct is placing deposits with the manufacturers of PPE in reliance on this order. In event of a cancellation for any reason, customer shall remain responsible for any portion of the order MQ Direct cannot cancel.
4. Delivery Schedules. MQ D irect and customer acknowledge that the combination of unprecedented demand for PPE and limited availability/capacity of freight carriers may result in delays to any delivery schedule. MQ Direct shall not be responsible for any such delays.
5. Limitation of Liability. MQ DIRECT SHALL NOT HAVE ANY LIABILITY TO CUSTOMER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, LOSS OF PROFITS, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF USE, REVENUE, BUSINESS INTERRUPTION OR LOSS OF INFORMATION), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE OR WHETHER SUCH PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BANK EXPRESS' LIABILITY TO CUSTOMER FOR ANY CLAIM RELATED TO THIS ORDER EXCEED THE TOTAL AMOUNT DUE TO BANK EXPRESS PURSUANT TO THE ORDER.
6. Force Majeure/Performance. Neither party is responsible to the other for any losses or a failure to perform under this order (other than payment obligations) attributable to war, riot, rebellion, terrorist act or other disorder; strike, or other work stoppage; disease, pandemic or epidemic; fire; change in law, regulation, order, embargo, quarantine, sanction, delay in granting an permit or approval, or other such mandate; flood; the fraudulent, illegal or bad faith acts of third parties beyond either parties’ control; or any other act not within a party’s reasonable control.
7. Arbitration. Any disputes arising from this order shall resolved by binding arbitration before a single arbitrator following the American Arbitration Association rules and located in New York, New York.
8. Miscellaneous. If any provision of these Terms is found or deemed to be invalid or unenforceable by law, then such provision will be deemed stricken and the remaining provisions will continue in full force and effect. These Terms and the order shall be governed by the laws of State of Maine