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Terms & Conditions of Sale

Effective Date: April 2, 2010

Please review the following terms and conditions carefully, as they shall govern your (“Buyer”) order and purchase from MM Herman & Associates, LLC (“Seller”):

  1. If a product appears to be damaged and/or defective, or if an order appears to be non-conforming, in any way, Buyer shall either (a) notify Seller with particularity regarding the alleged damage and/or defect and/or non-conformity in writing within seventy-two business hours of receiving the disputed product and/or order; or (b) irrevocably accept said product(s), and thereby waive all rights and remedies in connection with the alleged damage and/or defect and/or non-conformity.  
  2. Buyer shall not hold Seller responsible for the performance of any product or any defect in a product’s manufacture, design, materials, workmanship, or packaging.
  3. All purchases are final.  No returns, exchanges, or refunds. Buyer may not cancel order for any reason.
  4. If Seller cannot fulfill Buyer’s order for reasons beyond its control, the obligations of the Seller shall be suspended.
  5. Buyer shall release, indemnify, defend, and hold harmless Seller - including Seller’s agents, representatives, employees, ventures, parents, subsidiaries, third-party providers, contactors, directors, joint ventures, executives, officers, shareholders, and advisers (Seller’s “affiliates”) - in connection with any actual or alleged injury, damage, loss, suit, cause of action, claim, award, liability, counterclaim, dispute, judgment, or expense (including reasonable attorneys fees, litigation costs, and consultancy fees), whether asserted by Buyer or a third party, that may arise from: (a) Buyer’s order/purchase; (b) any of the products included in Buyer’s order/purchase, including without limitation any actual or alleged injury, damage, loss, suit, cause of action, claim, award, liability, counterclaim, dispute, judgment, or expense that may arise from the use/misuse or function/malfunction of a product; (c) the fulfillment, shipment, and/or delivery of Buyer’s order/purchase; and/or (d) any other act or omission of Seller and/or its affiliates in connection with Buyer’s order/purchase.
  6. Seller shall have the right to represent itself or obtain its own representation in connection with any actual or alleged injury, damage, loss, suit, cause of action, claim, award, liability, counterclaim, dispute, judgment, or expense that may arise from: (a) Buyer’s order/purchase; (b) any of the products included in Buyer’s order/purchase, including without limitation any actual or alleged injury, damage, loss, suit, cause of action, claim, award, liability, counterclaim, dispute, judgment, or expense that may arise from the use/misuse or function/malfunction of a product; (c) the fulfillment, shipment, and/or delivery of Buyer’s order/purchase; and/or (d) any other act or omission of Seller and/or its affiliates in connection with Buyer’s order/purchase.  Seller’s decision to represent itself or obtain its own representation, as opposed to strictly using representation offered by Buyer or a third-party, shall in no way prejudice Seller regarding any of its rights under these Terms & Conditions of Sale, nor shall it relieve Buyer of any of Buyer’s obligations under these Terms & Conditions of Sale
  7. Buyer shall assume the full cost and expense of any and all services, repairs, corrections, debts, liabilities, or otherwise that may arise from: a) Buyer’s order/purchase; (b) any of the products included in Buyer’s order/purchase, including without limitation any services, repairs, corrections, debts, liabilities, or otherwise that may arise from the use/misuse or function/malfunction of a product; (c) the fulfillment, shipment, and/or delivery of Buyer’s order/purchase; and/or (d) any other act or omission of Seller and/or its affiliates in connection with Buyer’s order/purchase.
  8. Even if Seller and/or its affiliates were advised as to the possibility of damage(s), under no circumstances, including negligence, will Seller or its affiliates be liable for any penalties (including without limitation administrative and/or civil penalties) or damages - including but not limited to statutory, direct, indirect, special, incidental, consequential, special, and/or punitive damages - that may arise from: a) Buyer’s order/purchase; (b) any of the products included in Buyer’s order/purchase, including without limitation any damages or penalties that may arise from the use/misuse or function/malfunction of a product; (c) the fulfillment, shipment, and/or delivery of Buyer’s order/purchase; and/or (d) any other act or omission of Seller and/or its affiliates in connection with Buyer’s order/purchase.  Buyer acknowledges and allows that, without limitation, Seller specifically disclaims any liability for: loss of profit and/or revenue; loss of use of products and/or any associated equipment; cost of capital, facilities, services, labor, and/or salaries; downtime, shut-down, and/or slowdown costs; spoilage of materials; and/or any other alleged economic loss.
  9. These Terms & Conditions of Sale supersede any conflicting agreements or terms of agreement – however and whenever established – between Seller and Buyer.  Seller rejects any term or condition of Buyer, however and whenever set forth, that conflicts with any term or condition herein listed.  Buyer hereby agrees that any term or condition of Buyer, however and whenever set forth, that conflicts with any term or condition herein listed shall be void and of no force or effect.
  10. Seller may, without liability, amend, suspend or cancel Buyer’s order/purchase without cause at any time.  In the event that Seller cancels a portion of an order/purchase for which has Buyer already paid, Seller will refund Buyer that amount already paid – if need be, Buyer’s refund will be prorated to account for any portion of the order/purchase already fulfilled.  If an amendment or suspension is of a significant magnitude, as determined solely by Seller, then Seller, in its sole discretion, may allow Buyer to revise or cancel its order.
  11. Prices, products, and product design are subject to change at any time without notice.  “Hold to Release” orders will be billed at prices in effect at time of shipment.
  12. Compliance with anti-kickback laws:  Invoice prices may be subject to a discount programs.  If so, the value of the discount, and the products to which the discount applies, will be provided to Buyer by Seller in the ordinary course of business.  It is Buyer’s responsibility to fully and accurately disclose such discount, among other requirements, in accordance with the Social Security Act § 1128B and its implementing regulations under 42 C.F.R. § 1001.952(h).
  13. Any tax, interest, penalty, fee, or change of any nature whatsoever imposed by any government authority on or measured by the transaction between Buyer and Seller shall be paid by Buyer in addition to any prices quoted or invoiced.  In the event that Seller is required to pay any such tax, fee, or charge, Buyer shall reimburse Seller for said payment.
  14. Seller retains the right to solely decide, for any reason, whether to extend Buyer credit or demand from Buyer full payment on an order prior to delivery.  If the Seller chooses to extend Buyer credit, Seller retains full control over the nature and terms of that credit extension and may demand payment in full at any time.   
  15. Past due invoices are subject to a service charge, calculated on the outstanding balance at the lesser of (a) the rate of two percent (2.0%) per month; or (b) the highest allowable rate by law.
  16. Risk of loss of goods shall pass to Buyer upon the earlier of Seller’s delivery to the carrier or delivery into storage, regardless of (a) whether the transportation medium or storage facility is owned and/or operated by Seller and/or its affiliates; (b) whether Seller and/or its affiliates charges Buyer for storage; and (c) any agreed-upon freight terms b/w Seller and/or its affiliates and Buyer, whenever and however established.
  17. Buyer will use any credit balance within 180 days of receiving that credit, or will otherwise forfeit said credit balance in its entirety.
  18. Any claims for loss or damage in transit shall be made by Buyer directly against the carrier.  Buyer agrees that Seller shall not be responsible for bringing or defending against any such claims.
  19. All products are sold by Seller on an “as is” and “as available” basis, without warranties of any kind, express or implied.  To the fullest extent permissible under law, Seller disclaims all warranties, express or implied, including without limitation implied warranty of merchantability, implied warranty of fitness for a particular purpose, and any other implied warranty that may arise from the course of dealing, usage, performance, or trade.
  20. Seller does not warrant or make any representations regarding the use, efficacy, or results of the use of any product or group of products. 
  21. Seller handles private, financial, and otherwise sensitive information with the utmost level of security and care.  However, Seller cannot and does guarantee that any transaction or transfer or storage of information is 100% secure; Seller therefore disclaims all liability in connection with any undesired usage of Buyer’s private, financial, or otherwise sensitive information.
  22. It is entirely Buyer’s responsibility to assess the viability and appropriateness of each product ordered, particularly as it relates to the intended user’s specific needs.
  23. Buyer shall hold confidential, and shall not without Seller’s express written consent use, copy or disclose - except to its personnel as necessary in the course of Buyer’s performance of its obligations in connection with Buyer’s order/purchase - any actual or potential designs, technical information, technical data, drawings, specifications, manufacturing processes, methods, terms and conditions, purchasing information, pricing information, product information (including without limitation product availability), shipping/delivery schedules and data, stratagem, ventures, partnerships, strategic relationships, trade secrets or other proprietary information and/or data that Seller and/or its affiliates has/have disclosed to Buyer.  In addition, Buyer shall not - without Seller’s express written consent - advertise, publish or release any statement concerning Buyer, including without limitation any advertisement, publication, or statement regarding the fact that Seller has furnished or contracted to furnish Buyer with goods and/or services.
  24. Seller and its affiliates reserve the right to bring any claim, dispute, cause of action, disagreement or legal proceeding in any court of competent jurisdiction.  Buyer agrees that any claim, dispute, cause of action, disagreement or legal proceeding against Seller and/or its affiliates must commence within one year after the cause of action arises and shall be submitted exclusively to the jurisdiction of a state or federal court located in San Francisco, California.  Buyer hereby agrees to submit to the personal jurisdiction of the courts located within San Francisco, California for the purpose of litigating any claim, dispute, cause of action, disagreement or legal proceeding that may arise from: a) Buyer’s order/purchase; (b) any of the products included in Buyer’s order/purchase, including without limitation any claim, dispute, cause of action, disagreement or legal that may arise from the use/misuse or function/malfunction of a product; (c) the fulfillment, shipment, and/or delivery of Buyer’s order/purchase; and/or (d) any other act or omission of Seller and/or its affiliates in connection with Buyer’s order/purchase.  Moreover, all matters concerning Buyer’s order/purchase shall be governed in all respects by the laws of the State of California as they apply to agreements entered into, to be performed in, and/or performed entirely within California between California residents.  Buyer hereby waives any claims, rights, or arguments regarding conflict of law and hereby agrees that any conflicting choice of law provision, whenever and however set forth, shall be of no force or effect.
  25. Any failure by Seller to require Buyer’s strict adherence to any term herein shall in no manner be construed as a waiver of any rights, nor shall such a failure be construed to remove or dilute the effect of any term, condition, or requirement.
  26. Seller reserves a security interest in the product(s) sold as part of Buyer’s order/purchase and proceeds to secure the purchase price of said goods.
  27. Buyer may not assign, delegate, or transfer its rights and responsibilities in connection with Buyer’s order/purchase unless Buyer receives Seller’s prior express written consent.  Any purported assignment, delegation, or transfer – however and whenever attempted – shall be void, and shall have no force or effect.
  28. No modification of these Terms & Conditions of Sale shall be valid unless committed to writing and signed by both Buyer and Seller.
  29. If any of the terms herein shall be held unenforceable, the remainder of the terms herein shall nevertheless remain in full force and effect.  Buyer’s jurisdiction may not allow the disclaimer of certain warranties or limitations of certain types of damages.  Thus, it is possible that portions of the above may not apply to Buyer; however, the limitation or exclusion of a particular disclaimer or limitation shall in no manner impact any other provision herein, nor shall it affect the validity or force of that limitation or disclaimer in other jurisdictions.