THESE TERMS AND CONDITIONS CONTAIN VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.
THESE TERMS AND CONDITIONS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
THESE TERMS AND CONDITIONS APPLY ONLY TO CASH (e.g., CREDIT CARD) SALES OF THE INVACARE® PLATINUM® MOBILE OXYGEN CONCENTRATOR PRODUCT AND RELATED ACCESSORIES (“product(s)”). BY PLACING AN ORDER FOR PRODUCTS, YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS, WHICH FORM AN AGREEMENT BETWEEN INVACARE CORPORATION (“Manufacturer”, “our’, “us” or “we”) AS THE MANUFACTURER OF THE PRODUCT (REGARDLESS IF THE SALE IS MADE THROUGH A THIRD-PARTY RESELLER HAVING RIGHTS FROM US), AND THE PURCHASER OF THE PRODUCT (“you” or “your”).
- Payment and Prices. You must supply your credit card details when any product order is placed. Your credit card will be charged at the time we are prepared to ship any ordered product. We are under no obligation to complete any shipment of ordered product until: (i) your credit card issuer has authorized the use of your credit card for payment of the ordered product, and (ii) we have received a valid medical prescription for the product. We reserve the right to verify the identity of the credit card and prescription holder by requesting appropriate documentation. All prices are subject to change without notice.
- Delivery, Title, Risk of Loss and Transportation Costs. Regardless of shipping terms or freight payment, title to product and all risk or loss or damage to product, will transfer to you upon delivery of product to a carrier at our facility, or other loading point. Method and route of shipment will be at our discretion. Shipping charges vary per order based on the following:
- Inspection and Acceptance. It is your responsibility to inspect product upon receipt for damage attributable to the carrier and to make claims directly to the carrier for such product damage. Our furnishing of the product to you constitutes acceptance of the product, unless you notify us in writing of shipping damage within 10 days after receipt of shipment.
- Partial Shipments and Claims. If your product order includes a Platinum Mobile Oxygen concentrator product and accessories, we will attempt to combine the concentrator and accessories in a single shipment. However, we reserve the right to make delivery in installments and to separately charge your credit card for all such installments. You hereby authorize us to charge the credit card that you provided us at the time of ordering for any such product delivery installments. Delay in delivery of any installment will not relieve you of your obligation to accept remaining deliveries. Claims for shortages or other errors in delivery must be made in writing to us within 10 days after receipt of shipment. Failure to give such notice will constitute unqualified acceptance and a waiver of all such claims.
- Taxes and Other Charges. Any sales tax, excise tax, duties and any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, based on or measured by the purchase and sale of the product, will be paid by you. If we are required to pay such tax, fee or charge, then you will reimburse us. You hereby authorize us to charge your credit card for any such tax, fee or charge, and if applicable, any reimbursements that may become due.
- 30 Day Risk Free Trial. Under our 30 day risk free trial, which is subject to this agreement, you may return your Platinum Mobile Oxygen concentrator product to us up to 30 days from the date of invoice for a full credit of the amount invoiced for such product, less a $99.00 restocking fee. Credit is not available for any product returned after such 30 day period. If accessories were purchased at the same time you purchased the product, such credit will include the amount invoiced for such accessories only if returned with the product. Such credit less the restocking fee will be paid after we have inspected the returned product and accessories to confirm receipt of all items. We reserve the right to issue a partial credit if there are any missing items or damage. This process may take up to 30 days to complete. You are responsible for all shipping costs to return the product and accessories to us under the 30 day risk free trial and for following the return process described in this agreement.
- Return Process. Upon receiving notice from you of a product return under the 30 day risk free trial, we will provide you with a serialized return authorization. It is your responsibility to follow the return instructions that we provide you. The product must be repackaged in the original box to comply with lithium shipping regulations and prevent damage to the product. If the product is returned in a non-approved carton, service charges may apply. Shipping charges are your responsibility. DO NOT return products or components to us or any of our service centers without our prior authorization. For all other product returns, please see the Limited Warranty provided with the product (also available at futureofoxygen.com).
- Product Changes. We reserve the right to change the design and construction, and the type of materials used in the manufacture of products without notice to you.
- Warranty. The limited warranty for the product is set forth in the Limited Warranty provided with the product (also available at futureofoxygen.com). SUCH WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE APPLICATION OF ANY IMPLIED WARRANTY WHATSOEVER SET FORTH IN THE LIMITED WARRANTY DOCUMENT SHALL NOT EXTEND BEYOND THE DURATION OF THE EXPRESS WARRANTY PROVIDED HEREIN. THE LIMITATION OF HOW LONG AN IMPLIED WARRANTY LASTS MAY NOT APPLY TO YOU IF YOUR STATE DOES NOT ALLOW SUCH LIMITATIONS.
- Limitation of Liability. IN NO EVENT WILL WE BE LIABLE TO YOU FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE PRODUCT OR OUR PERFORMANCE OR FAILURE TO PERFORM ANY OF OUR OBLIGATIONS UNDER THIS AGREEMENT, WHETHER OR NOT WE HAVE BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS. THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES MAY NOT APPLY TO YOU IF YOUR STATE DOES NOT ALLOW SUCH EXCLUSIONS. Our total liability to you under this agreement will not exceed the value of the product giving rise to such liability.
- Personal Use, Export. You acknowledge and agree that: (i) the products are for personal use only, that you will not resell the product, and that you are not purchasing the product for resale or further distribution or other transfer having a commercial basis; (ii) the product is a medical device and subject to applicable regulations of the U.S. Food and Drug Administration and requires a valid medical prescription; and (iii) you will not export the product from the United States, unless such export is in compliance with all applicable export control laws or regulations promulgated and administrated by the United States government.
- Indemnification. You will indemnify and hold us harmless from any obligations, costs, claims, judgments and reasonable attorneys’ fees, arising out of or resulting from: (i) your breach of this agreement, or (ii) your negligent acts or omissions, willful misconduct, fraud, or misrepresentation; unless and to the extent caused by our gross negligence or willful misconduct.
- Intellectual Property Use and Ownership. You acknowledge and agree that we are and will remain the sole and exclusive owner of all intellectual property rights in and to the products and any related specifications, instructions, documentation or other materials, including, but not limited to, all related copyrights, patents, and trademarks and other intellectual property rights. You do not and will not have or acquire any ownership of these intellectual property rights in or to the products.
- Force Majeure. We will not be liable for failure to perform any of our obligations under this agreement during any period in which performance is delayed by fire, storm, flood, strike, lockout, accident, terrorism, civil commotion or other national disasters, cyber attack, war, riot, embargo or the action, regulation, law, order restriction of any government authority, department, commission, branch, agency, court or other similar government institutions or our inability to obtain any raw materials, equipment, labor or transportation at prices or on terms we deem practicable from our usual sources of supply provided that we notify you of such delay. We are not subject to any liability to you for failing to perform during the period such inability exists.
- Governing Law. The laws of the State of Ohio, without reference to its principles of conflicts of laws, will govern this agreement and its interpretation and construction.
- Dispute Resolution and Binding Arbitration.
- YOU AND MANUFACTURER ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OR USE OF THE PRODUCTS, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
- The arbitration will be administered by the American Arbitration Association (”AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Section 16. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section. The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or this agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
- You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR MANUFACTURER WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
- Entire Agreement. This agreement supersedes all prior oral or written agreements or understandings between the parties with respect to the subject matter hereof, including without limitation all prior or contemporaneous advertisements or statements relating to the products. No additional or different terms and conditions will be binding upon us unless specifically agreed to in a writing signed by our duly authorized personnel. Our failure to object to provisions contained in any communication from you will not be construed as a waiver of this agreement nor an acceptance of any such provisions. No supplement, modification or amendment of this agreement shall be binding unless executed in writing by both parties.
- No Third Party Beneficiaries. This agreement does not and is not intended to confer any rights or remedies upon any person other than you.
- Assignment. You may not assign any of your rights or obligations under this agreement. We may assign all or part of our rights and obligations to any of our subsidiaries, divisions or third parties selected by us.
- Waiver. No waiver of or failure to enforce any provision of this agreement will be binding unless in writing and signed by the party against whom enforcement of the waiver is sought. No waiver by any party of any provision will be deemed a waiver of any subsequent breach of that same provision or of any other provision of this agreement.
- Severability. If any provision of this agreement is held invalid, illegal, void or unenforceable, then that provision will be deemed severed from this agreement and will not affect the validity or enforceability of the remaining provisions of this agreement.
- Notices. Any notices to be given by either party to the other will be made by personal delivery or overnight courier, in writing. If we are providing notice to you, we will use the same address that we used to ship you the product. If you are providing notice to us, you will use: 1 Invacare Way, Elyria, OH 44035, Attn: Legal Dept. Either party may provide the other party notice of a different address, provided that such notice is made in writing and states that the different address is to be used for notice under this agreement.
- Section Headings. The section headings used herein are for convenience only and will not be given any legal import.