LAST UPDATED: JULY 21, 2021.
PLEASE READ THE FOLLOWING TERMS OF SALE CAREFULLY. THEY CONTAIN IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT APPLY TO OUR PRODUCTS, INCLUDING ANY EXCHANGED OR REPAIRED PRODUCTS (COLLECTIVELY, THE “GOODS”), MANUFACTURED BY AND/OR DIRECTLY OR INDIRECTLY PURCHASED OR RECEIVED FROM BE HEALTHCARE LLC (THE “COMPANY” OR “WE”).
IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU CANNOT PURCHASE OR USE THE GOODS.
1. TERMS AND CONDITIONS OF SALE
The following terms and conditions govern your purchase and use of the Goods. By ordering, receiving, and/or using the Goods, you agree to these terms (“Terms of Sale”) between you and us, which may be reviewed at any time at https://omnimask.com/termsofsale (“Site”). The Terms of Sale shall supplement and prevail in the event of any conflict with any other third-party terms or conditions, including those associated with a purchase order, whether or not such third-party terms or conditions are signed or otherwise acknowledged by us.
We reserve the right to change these Terms of Sale at any time. Please review the then-current Terms of Sale each time prior to making a purchase from us. Every time you order Goods from us, the Terms of Sale in force at that time will apply between you and us.
2. ORDER ACCEPTANCE POLICY
Payment shall be made by credit card or other electronic means, such as PayPal, or by an approved purchase order signed by an authorized purchasing agent. Your receipt of an electronic or other form of order acknowledgement does not constitute either our acceptance or confirmation of your order or our offer to sell. We reserve the right, without prior notification, to accept or decline your order or limit the order quantity for any reason. For credit card and other electronic payments, such payment is subject to the approval of the financial institution issuing the credit card or otherwise performing the transaction and we shall not be liable in any way if such financial institution refuses to accept or honor the credit card or perform the transaction for any reason. For purchase orders, acceptance is at our sole discretion. Except by special arrangement, we do not accept orders through the Site in excess of $10,000, including taxes and freight charges. Please contact our Sales department if you need to place an order over $10,000. We may require additional verification or information before accepting any order.
3. TYPOGRAPHICAL ERRORS
In the event Goods are listed at an incorrect price or with incorrect information due to typographical error, we shall have the right to refuse or cancel any orders placed for such Goods, regardless of whether or not the order has been confirmed and your credit card or other form of payment has been charged or transacted. If payment has already been made for the purchase and your order is cancelled, we shall immediately issue a credit in the amount of the charge in the same manner in which payment was made.
We cannot guarantee availability of Goods, and Goods shown or listed as available may nonetheless not be available for immediate delivery. We reserve the right, without liability or prior notice, to revise, discontinue, or cease to make available any or all Goods or to cancel any order. If there is any revision, discontinuance, or cessation, we may, in our discretion, cancel your order or ship Goods with functionality and specifications substantially similar to the Goods ordered.
5. SHIPPING AND DELIVERY
Goods ordered via the Site are shipped from our facilities in the United States. We use various courier companies and customs agencies for deliveries. Although we endeavor to ship same day, Order processing can take 1 to 3 business days. Charges and estimated timeframes for shipment by standard and expedited service are shown on the Site. Delivery may be delayed due to causes beyond our control, including, but not limited to, the unavailability or refusal of a person to accept delivery of the shipment, disruptions in the air or ground transportation network (such as weather phenomena), and natural disasters. We are not responsible for any shipping problems and shall not be held liable for any reasonable delay beyond our advertised delivery timeframes.
6. PRE-ORDERS AND BACK ORDERS
Please feel free to order Goods indicated as "Pre-Order" or "Back Ordered", but keep in mind that we will not deliver within typical shipping time-frames; nor can we set expectations of delivery timeframes at the time of order.
Payment for Goods purchased via the Site can be made by credit card or other electronic means indicated on the Site. All Goods selected will be charged in U.S. dollars. Shipping, handling and taxes will be charged based on the shipping address. We do not accept payment by check or money order for orders placed through the Site.
8. SHIPPING CHARGES AND TAXES
Shipping is your responsibility, unless stated otherwise on the Site at the time of your order. Unless you provide us with a valid and correct tax exemption certificate applicable to the Goods ship-to location at the time of purchase, you will be responsible for sales tax and all other taxes associated with the order, however designated.
9. UPDATES, REVISIONS, AND DISCONTINUATIONS
We may revise and discontinue Goods at any time without notice to you. We will ship Goods that have the functionality and performance of the Goods ordered, but changes between what is shipped and what is described in a specification sheet or catalog are possible.
10. TITLE; RISK OF LOSS; INSURANCE
Title to the Goods passes from us to you on shipment from our facilities or our third-party manufacturer’s facilities. You are responsible for all losses or damage that occur during shipping. You are advised to purchase your own insurance to cover any losses that may occur during shipping.
11. LIMITED WARRANTY
The terms and conditions of our limited warranty and (if available) extended warranties may be found on our Site and are incorporated herein by reference.
12. WARRANTIES AND DISCLAIMERS
EXCEPT TO THE EXTENT SET FORTH IN SECTION 11 (LIMITED WARRANTY) TO THE MAXIMUM EXTENT PERMITTED BY LAW, BE HEALTHCARE LLC PROVIDES THE SITE ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SITE, WHETHER ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS, QUIET ENJOYMENT, AND ACCURACY. NO REVISION IN LIMITED WARRANTIES WILL AFFECT GOODS ALREADY ORDERED BY YOU.
IN SO FAR AS SUCH WARRANTIES CANNOT BE DISCLAIMED, TO THE EXTENT PERMITTED BY LAW BE HEALTHCARE LLC LIMITS THE DURATION AND REMEDIES OF SUCH WARRANTIES FOR THE GOODS TO THE DURATION OF ITS EXPRESS LIMITED WARRANTY (SEE SECTION 11) AND, AT THE COMPANY’S OPTION, TO THE REPAIR OR REPLACEMENT OF THE GOODS DESCRIBED THEREIN.
WITHOUT LIMITING THE GENERALITY OF THE DISCLAIMERS ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW YOU USE THE GOODS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND THE COMPANY DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO YOUR PERSON OR OTHER PERSONS OR PROPERTY, RESULTING FROM YOUR USE OF THE GOODS.
13. LIMITATION OF LIABILITY
IN ADDITION TO THE ABOVE WARRANTY DISCLAIMER, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL: (A) BE HEALTHCARE LLC, ITS MEMBERS, PARTNERS, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, AFFILIATES, PARENTS, SUCCESSORS, ASSIGNS, LICENSORS, SUPPLIERS, AND RESELLERS (COLLECTIVELY, “OMNIMASK PARTIES”) BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR PERSONAL INJURY OR LOST DATA, PROFITS, EQUIPMENT OR PROPERTY, ARISING FROM OR RELATING TO THE GOODS, EVEN IF THE OMNIMASK PARTIES KNEW OF, SHOULD HAVE KNOWN OF, OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) THE TOTAL CUMULATIVE LIABILITY OF THE OMNIMASK PARTIES ARISING FROM OR RELATED TO THE GOODS, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES, IF ANY, ACTUALLY PAID BY YOU TO THE COMPANY OR OUR AUTHORIZED RESELLERS FOR THE GOODS AT ISSUE IN THE PRIOR TWELVE (12) MONTHS. THIS LIMITATION APPLIES NO MATTER HOW MANY GOODS YOU OWN AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THIS WARRANTY AND THE REMEDIES SET FORTH ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED.
SOME STATES, COUNTRIES, AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS AND/OR EXCLUSIONS DESCRIBED ABOVE MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY BETWEEN STATES, COUNTRIES, AND JURISDICTIONS. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
14. YOUR INDEMNITY TO US
To the maximum extent permitted by law, you will indemnify, defend and hold the OmniMask Parties harmless from any and all claims, demands, causes of action, debts or liabilities (including reasonable attorneys' fees, expenses and court costs) arising from: (a) your modification, misuse, and/or addition to the Goods; (b) your breach of the Terms of Sale including but not limited to your obligations under Section 18 (Export Compliance); (c) your omissions, misrepresentations, and/or negligence including but not limited to mis-maintenance of the Goods; and/or (d) Goods sold by you that cause damage to a third party to the extent such claim is based your breach of (a) thru (c) of this Section. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify the Company and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without prior written consent by the legal department of Be Healthcare LLC. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
15. DISPUTE RESOLUTION
You and the Company each agree to attempt to resolve any claim, dispute or controversy between us (including disputes involving any of the OmniMask Parties) whether in contract, tort or otherwise, arising out of or relating to the Terms of Sale, advertising by any of the OmniMask Parties, or any related purchase (a “Dispute”) through face-to-face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator, rather than through litigation. If you and we are unable to resolve the Dispute through negotiation or mediation within a reasonable time after written notice from one party to the other that a Dispute exists, the Dispute will be settled by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association, which can be reviewed at any time at www.adr.org. The arbitration will be conducted before a single arbitrator mutually acceptable to the parties or, if the parties are unable to agree on an arbitrator, selected pursuant to the Commercial Arbitration Rules. The arbitrator shall arbitrate arbitrability. The arbitration hearing shall take place in Contra Costa County, California. The arbitrator shall base its award on the Terms of Sale and will follow the law and judicial precedents of the State of California and federal law (including the Federal Arbitration Act) as applicable. The arbitrator shall render its award in writing and will include the findings of fact and conclusion of law upon which the award is based. Any court of competent jurisdiction may enter judgment upon the arbitration award. The existence or results of any negotiation, mediation or arbitration will be treated as confidential except to the extent necessary to enforce the ruling. Notwithstanding the foregoing, you and we will have the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction or other equitable relief to preserve the status quo or prevent irreparable harm, although the merits of the underlying Dispute will be resolved in accordance with this Section.
16. CLASS-ACTION WAIVER
You and the Company each agree that any proceedings to resolve or litigate any dispute between us (including disputes involving any of the OmniMask Parties), whether in arbitration, in court, or otherwise, will be conducted solely on an individual basis, and that neither you nor we will seek to have any dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which you or we act or propose to act in a representative capacity. You and we further agree that no arbitration or proceeding will be joined, consolidated, or combined with another arbitration or proceeding without the prior written consent of you, us, and all parties to any such arbitration or proceeding.
17. GOVERNING LAW
The Terms of Sale, and any claim, dispute or controversy relating to the Terms of Sale, are governed by the laws of California, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction, and by applicable federal law, including the Federal Arbitration Act. Any nonarbitrable Dispute must be brought in a federal or state court located in Contra Costa County, California, or the Northern District of California, and you and we irrevocably submit to the jurisdiction and venue of any such court in any such action or proceeding, except that we may seek injunctive relief in any court having jurisdiction to protect our intellectual property or confidential information.
18. EXPORT COMPLIANCE
The Goods are currently licensed for sale, evaluation and/or use only in the United States. You acknowledge that the Goods sold or licensed under the Terms of, and the transactions involving these Goods, are subject to the customs and export control laws and regulations of the United States and may also be subject to the customs and export laws and regulations of the country in which the Goods are manufactured and/or received. You acknowledge that it is your sole responsibility to comply with and abide by those laws and regulations. Further, under U.S. law, the Goods shipped pursuant to the Terms of Sale may not be sold, leased or otherwise transferred to restricted countries or utilized by restricted end users or an end user engaged in activities related to weapons of mass destruction, including without limitation, activities related to the design, development, production or use of nuclear weapons, materials, or facilities, missiles or the support of missile projects, and chemical or biological weapons. You agree not to provide any written regulatory certifications or notifications on behalf of us.
If you are a legal entity or unincorporated association, by purchasing any of our Goods you grant us the right to identify you as a customer (and to use your logo solely for that purpose) on the Site and in our marketing literature without reservation or limitation provided, however, we will not issue a press release identifying you as a customer or otherwise expressly claim an endorsement of our Goods by you without your written permission.
20. GENERAL PROVISIONS
The Terms of Sale constitute the final, complete, and exclusive agreement between you and us regarding the Goods and supersede all prior or contemporaneous agreements, understandings, and communication, whether written or oral. The right and obligations of the Terms of Sale are personal to you. Any attempt by you to assign, transfer or delegate the Terms of Sale without the express written permission of us shall be null and void. Except as otherwise provided in this Section, no amendment to the Terms of Sale is valid unless in a hand-signed writing executed by you and us. If any provision of the Terms of Sale is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. All waivers by us will be effective only if in writing. Any waiver or failure by us to enforce any provision of the Terms of Sale on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Any notice to you may be provided by email to the address that you registered with us. The section headings in the Terms of Sale are included to help make the agreement easier to read and have no binding effect. You agree that regardless of any statute or law to the contrary, unless otherwise barred by law, any claim or cause of action arising out of or related to your purchase or use of the Goods must be filed within one (1) year after such claim or cause of action arose or is forever barred. Provided, however, that the limitation in the foregoing sentence shall not apply to any claim or cause of action arising out of or related to infringement of our copyright, patent, trademark or other intellectual property rights.
If you have any questions regarding the Terms of Sale, please contact us through the support link on our Site.