KAPLAN MD, INC.
Terms of Sale
All sales of products and services by KAPLAN MD, INC. (“Seller”) are made on the following terms and conditions. In these Terms of Sale, any products sold by Seller to the buyer (“Buyer”) are referred to below as “goods,” and any services sold by Seller to Buyer are called “services.”
1. Agreement. If Buyer has not otherwise agreed to these Terms of Sale, then Buyer’s acceptance of delivery of, or payment for, the goods or services will constitute Buyer’s agreement to these Terms. Seller objects to and will not agree to any terms that are additional to or different from these terms. Terms that are printed on or contained in a purchase order or other form prepared by Buyer which are additional to, in conflict with or inconsistent with those herein will be considered inapplicable and will have no force or effect.
2. Order Acceptance Policy. Buyer’s receipt of an electronic or other form of order confirmation does not signify Seller’s acceptance of Buyer’s order, nor does it constitute confirmation of Seller’s offer to sell. Seller reserves the right at any time after receipt of Buyer’s order to accept or decline Buyer’s order for any reason. Seller reserves the right at any time after receipt of Buyer’s order, without prior notice to Buyer, to supply less than the quantity ordered of any item. Seller may require additional verifications or information before accepting any order.
3. Payment Terms. Seller will have the right to increase its prices at any time without notice. Payment for the products or services will be made in full before physical delivery of goods or services.
4. Delivery and Risk of Loss. Seller or the manufacturer of the goods (“Manufacturer”) will deliver the goods to Buyer on the terms set forth in Seller’s quotation or acknowledgment, except that risk of loss of the goods will pass to Buyer upon identification of the goods to the contract between Buyer and Seller. Shipping, delivery and performance dates are estimates only, and time is not of the essence; however, we always endeavor to meet the Buyer’s requested delivery date. Seller or Manufacturer may ship all the goods at one time or in portions from time to time. Seller will have the right, but no obligation, to determine the method of shipment and routing of the goods, unless otherwise agreed to by Seller in writing.
5. Taxes. Seller’s price does not include any privilege, occupation, personal property, value-added, sales, excise, use or other taxes, and Buyer will be liable for all such taxes, whether or not Seller invoices Buyer for them. Buyer agrees to provide Seller in good faith with a tax exemption certificate as to the goods Buyer purchases from Seller, and Seller will be entitled to rely on the tax exemption certificate Buyer provides.
6. Unavoidable Delay. If Seller is not able to finish or deliver the goods to Buyer, or to perform the services, on time because of anything Seller cannot control (such as casualty, labor trouble, accidents or unavailability of goods, supplies or transportation), then the estimated delivery or performance time will be extended accordingly, and Seller will not be liable to Buyer for any damages caused by the delay.
7. Defects; Limitations. SELLER DOES NOT MAKE ANY WARRANTY AS TO THE GOODS OR SERVICES, EXPRESS OR IMPLIED, AND, IN PARTICULAR, DOES NOT MAKE ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. The only warranty applicable to the goods is the warranty (if any) provided to Buyer from Manufacturer. Buyer is solely responsible for determining the proper application and use of the goods. Seller will not have any tort liability with respect to any of the goods or services and will not be liable to Buyer or any other third party for consequential, incidental, punitive or other special damages of any kind whatsoever, including but not limited to lost profits or other financial damage, that arise from any product defect, delay, non-delivery or other breach. Buyer will not have any right of rejection or of revocation of acceptance of the goods. No person other than an officer of Seller may modify or waive these warranty limitations, and all modifications or waivers must be in writing.
8. Cancellation. Buyer does not have any right to cancel its agreement to buy the goods or services from Seller. However, Seller will consider individual cancellation requests, taking into account reasonableness and timing; such requests should be submitted to customer service as soon as possible. If Seller agrees in writing to permit cancellation, Buyer agrees that such cancellation will be subject to restocking fees, if any. If Buyer fails to pay or perform any indebtedness or obligation that Buyer at any time owes to Seller, then Seller may consider Buyer’s failure to be an anticipatory repudiation of any or all outstanding contracts that provide for Seller to sell goods or services to Buyer, and Seller may, without liability to Buyer, cancel any or all of those outstanding contracts.
9. Indemnity and Reimbursement. Buyer will indemnify and hold harmless Seller with respect to all damages, losses, claims and expenses, including consequential and incidental damages and actual attorney fees, that Seller incurs as a result of Buyer’s breach of any of Buyer’s obligations under these Terms of Sale. If Buyer brings a claim against Seller arising out of or relating to this Agreement or the goods or services, and Seller ultimately prevails or Buyer eventually elects not to further pursue the claim, then Buyer will reimburse Seller for all expenses incurred by Seller in connection with such claim, including but not limited to actual attorney fees.
10. Seller’s Rights. Seller has all rights and remedies that applicable law gives to sellers. Seller’s rights and remedies are cumulative, and Seller may exercise them from time to time. Seller’s waiver of any right on one occasion will not be a waiver of any future exercise of that right.
11. Time For Bringing Action. Any action that Buyer brings against Seller for breach of this Agreement or for any other claim that arises out of or relates to the goods or their design, manufacture, sale or delivery or the services must be brought within one year after the cause of action accrues.
12. Applicable Law. This agreement between Seller and Buyer will be considered to have been made in the State of California, and it will be governed by and interpreted according to California law. Either party may bring any action that arises out of or relates to this agreement in any federal or state court in Los Angeles County, California, that has jurisdiction of the subject matter, and Buyer irrevocably consents that any such court will have personal jurisdiction over Buyer and waives any objection that the court is an inconvenient forum.
13. Complete Agreement; Amendment. Seller’s quotation and acknowledgment and these standard Terms of Sale contain the entire agreement between Buyer and Seller as to the subject matter hereof. Any change in this agreement must be in a writing signed by an authorized officer of Seller.
SITE USE GENERALLY.
1. Limited License. KAPLANMD grants you a limited, revocable license to access and make use of the Site for your personal purposes. This license does not include, and you are expressly prohibited from: (i) collecting and using product listings, descriptions, images or prices; (ii) creating derivative works using the Site or its contents; (iii) using data mining tools, bots, or similar data gathering techniques and tools; (iv) framing or using framing techniques to enclose any Site content without our express written consent; and (v) using any meta tags or any other ‘hidden text’ that uses our name or any of our trademarks or services mark. We may terminate this license and your rights to use the Site for any reason at any time.
2. Copyright and Trademark. The Site design, text and graphics, and the selection and arrangement of such elements are copyrighted and are protected by worldwide copyright laws and treaty provisions. Unless otherwise indicated, all product and service marks and logos displayed on the Site are subject to the trademark rights of KAPLAN MD. The Site and its material may not be copied (other than page caching), reproduced, modified, published, uploaded, posted, transmitted, or distributed in any way, without our prior written permission and such actions are expressly prohibited by law, and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible. Except as expressly provided herein, KAPLAN MD does not grant any express or implied right to you under any patents, copyrights, trademarks or trade secret information.
3. Links to Other Materials. Linked sites are not under the control of KAPLAN MD and KAPLAN MD is not responsible for the content of any linked site or any link contained in a linked site. We reserve the right to terminate any link or linking program at any time. We provide such links only as a convenience to you. We have not endorsed, tested or verified any information, programs, companies, or products on sites to which it links. If you decide to access any third party sites linked to this Site, you do so entirely at your own risk.
4. Territory. The Site is a business and commercial web site. KAPLAN MD operates this Site from its office within the United States. KAPLAN MD makes no representation that content and materials on this site are legal or appropriate for use from outside the United States. If you access this Site from outside the United States, you do so at your own risk. You may not use the Site in violation of United States export laws and regulations.
5. Privacy. Please review our Privacy Notice, which also governs your use of the Site. A copy of the Privacy Notice may be here.
6. Your Account. You may choose to register at the Site. If you do register, then you will have an email address/username and password for your account. You are responsible for maintaining the confidentiality of your account, username and/or password and for restricting access to your computer. You agree to accept responsibility for all activities that occur under your account or password. You agree to provide only current, complete, accurate and truthful information. If you are accessing and using the Site on someone else’s behalf, then you represent that you have the authority to bind that person as the principal to these Terms, and to the extent you do not have such authority you agree to be bound to these Terms and to accept liability for harm caused by any wrongful use of the Site or Content resulting from such access or use. We reserve the right to refuse service and/or terminate accounts without prior notice if these Terms are violated or if we decide, in our sole discretion, that it would be in KAPLAN MD’s best interests to do so.
8. Health Information Content. This site may post articles with health information, which is provided for educational purposes only. The health information describes general principles of health care. It may not contain information that is applicable to your personal circumstances. Moreover, like any printed material, the information in these articles may become out-of-date over time. These articles are not a tool for self-diagnosis, nor are they a substitute for proper medical advice, diagnosis or treatment. Proper treatment of health conditions depends on a number of factors, such as your medical history, diet, lifestyle and the medication that you currently take. Your doctor or other licensed health care provider is in the best position to take these and other factors into account in assessing and addressing your individual health care needs. If you use the health information on this website, you agree that KAPLAN MD is not responsible or liable for any claim, loss or damage directly or indirectly resulting from this information, and that your use is subject to the disclaimers and limitations set forth below.
TERMS OF SALE.
1. Purchases. All purchases made from KAPLAN MD through the Site or otherwise will be governed by the “KAPLAN MD Inc. Terms of Sale,” as referenced above, and as they may be amended by KAPLAN MD from time to time in its sole discretion. You agree that any additional or different terms contained on your purchase order or any other form submitted by you will have no force or effect.
2. Pricing. KAPLAN MD cannot confirm the price of an item until you order. You acknowledge that occasionally an item in our catalog may be mispriced. If an item’s correct price is higher than our stated price, then we will, at our discretion, either contract you for instructions before shipping or cancel your order and notify you of the cancellation.
3. Product Descriptions. KAPLAN MD does not warrant that product descriptions or other content of this Site are accurate, complete, reliable, current, or error-free.
4. Electronic Contracting. These Terms evidence the intent of KAPLAN MD and you to create binding purchase and sale obligations electronically through the Site. A record, signature, or manifestation of assent will not be denied legal effect solely because it is in electronic form. A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation. Further, you hereby consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the Site.
DISCLAIMER OF WARRANTIES.
1. General. KAPLAN MD MAKES NO REPRESENTATIONS OR WARRANTIES THAT (i) THE SITE WILL MEET YOUR REQUIREMENTS, (ii) THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE WILL BE ACCURATE OR RELIABLE, OR (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITE WILL MEET YOUR EXPECTATIONS. KAPLAN MD UNDERTAKES NO OBLIGATION TO UPDATE, AMEND OR CLARIFY THE SITE.
2. No Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITE IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND. YOUR USE OF THE SITE IS AT YOUR SOLE RISK. KAPLAN MD EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND WITH REGARD TO THE SITE, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, TITLE, NON INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS, RESULTS, AND LACK OF NEGLIGENCE.
LIMITATION OF LIABILITY AND REMEDIES.
1. Exclusion. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL KAPLAN MD BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY (INCLUDING OF GOOD FAITH OR OF REASONABLE CARE), NEGLIGENCE, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SITE, EVEN IF KAPLAN MD KNOWS OF, OR SHOULD HAVE KNOWN OF, THE POSSIBILITY OF SUCH DAMAGES. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE, OR WITH ANY OF THE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
2. Indemnification. You agree to defend, indemnify and hold KAPLANMD harmless from and against any and all claims, liabilities, demands, penalties, forfeitures, suits, judgments and the associated costs and expenses (including attorney’s fees), which KAPLAN MD may hereafter incur, become responsible for or pay out arising out of your use of the Site or your breach of any term or provision of these Terms.
1. Modification. KAPLAN MD reserves the right at any time and in KAPLAN MD’s sole discretion to change the terms, conditions, and notices under which the Site is offered, including but not limited to the charges associated with the use of the Site. KAPLAN MD may revise the Terms at any time by updating this posting. You should visit this page from time to time to review the then-current Terms because they are binding on you. Certain provisions of the Terms may be superseded by expressly designated legal notices given to you or terms located on particular pages at the Site. KAPLAN MD also reserves the right at any time and in our sole discretion to modify or discontinue, temporarily or permanently, the Site (or any part thereof) with or without notice. You agree that KAPLAN MD will not be liable to you or to any third party for any modification, suspension or discontinuance of the Site.
2. Jurisdiction. The Terms will be governed by and interpreted according to the laws of the State of California, without regard to conflicts of law principles. KAPLAN MD and you agree that all disputes and litigation regarding the Terms, the Site, and matters connected with its performance or relating to the use of the Site will be subject to, and they each consent to jurisdiction and venue in, the state and federal courts in Los Angeles County, California. Use of the Site is unauthorized in any jurisdiction that does not give effect to all provision of these terms and conditions, including without limitation this section.
3. Equitable Relief. You recognize and acknowledge that a breach by you of any of your obligations under the Terms will cause KAPLAN MD irreparable damage, which cannot be readily remedied by monetary damages in an action at law. Accordingly, in the event of any default or breach by you, including any action by you that could cause some loss or dilution of our goodwill, reputation, or rights in the Site, KAPLAN MD will be entitled to an immediate injunction in addition to any other remedies available, to stop or prevent such irreparable harm, loss, or dilution.
4. Entire Agreement. The Terms embody the entire agreement and understanding between KAPLAN MD and you with respect to the subject matter of the Terms and supersedes all prior oral or written agreements and understandings relating to the subject matter of the Terms. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in the Terms will affect, or be used to interpret, change or restrict, the express terms and provisions of the Terms.