Terms and Conditions for the Itamar Medical Website and the Itamar Medical Online Ordering System
Itamar Medical Ltd. and its affiliates (“Itamar Medical“, “we” or “us“) welcome you to our website at http://www.itamar-medical.com/ or any Itamar Medical website under the domain Itamar-medical.com (the “Site”). The Site offers information and materials with respect to Itamar Medical’s products and the technologies incorporated therein for any medical institutions, physicians or patients interested in our products (“User” or “you”). In addition, the Site allows registered Users to order our products and goods online. Purchasing products through the Site is available only for registered Users who are physicians and customers of Itamar Medical, and any terms and conditions related to the purchasing of products online are applicable for such Users only. Each of the Site’s Users is invited to use and enjoy the Site in accordance with the terms and conditions hereunder.
The Site is not directed to children under the age of 18. If you are under 18 years old, you may browse our Site; however, you must not purchase Products (as defined herein) or provide us with any of your personally identifiable information.
THE SITE DOES NOT PROVIDE MEDICAL ADVICE OR HEALTHCARE SERVICES.
THE CONTENT ON THE SITE, INCLUDING ANY TEXT, IMAGES, PRESENTATIONS, FILES, E-LEARNING MATERIALS, MARKETING MATERIALS, BROCHURES, CLIPS AND VIDEOS (THE “CONTENT”), IS MADE AVAILABLE FOR EDUCATIONAL, DOWNLOADABLE AND MARKETING PURPOSES ONLY AND DOES NOT CONSTITUTE PROFESSIONAL MEDICAL ADVICE. ITAMAR MEDICAL IS NOT PROVIDING ANY MEDICAL CARE OR OTHER ASSISTANCE TO PHYSICIANS IN CONNECTION WITH THE SELECTION OF MEDICAL PROCEDURES AND/OR PRODUCTS AND/OR CARE OF PHYSICIANS’ PATIENTS. PHYSICIANS AND OTHER HEALTHCARE PROVIDERS SHOULD ALWAYS EXERCISE THEIR OWN CLINICAL JUDGMENT FOR ANY GIVEN SITUATION.
ALTHOUGH ACCESSIBLE BY OTHERS OUTSIDE THE UNITED STATES, CERTAIN PRODUCTS FEATURED ON THE SITE ARE INTENDED FOR USE ONLY BY MEDICAL PROFESSIONALS. BY USING THE SITE, YOU ACKNOWLEDGE THAT CERTAIN PRODUCTS, INCLUDING MEDICAL DEVICES, ARE FDA-REGULATED. ACCORDINGLY, IT IS IN YOUR RESPONSIBILITY TO ENSURE THAT THE PRODUCTS YOU BUY ONLINE ARE UTILIZED AND OPERATED IN COMPLIANCE WITH STATE AND LOCAL RULES AND REGULATIONS, INCLUDING WITH RESPECT TO THE PERSONNEL AUTHORIZED TO USE AND/OR OPERATE SUCH PRODUCTS. ADDITIONALLY, YOU HAVE THE SOLE AND ULTIMATE RESPONSIBILITY FOR THE PROVISION OF ANY MEDICAL AND/OR SURGICAL OR OTHER PROCEDURES PERFORMED THROUGH, IN CONJUNCTION WITH, OR BY THE USE IN ANY WAY, OF THE PRODUCTS AVAILABLE ON THE SITE.
WE DO NOT, EITHER EXPRESSLY OR IMPLIEDLY, ENDORSE, RECOMMEND OR IN ANY MANNER ASSUME ANY RESPONSIBILITY FOR ANY INJURY AND/OR DAMAGES ARISING OUT OF ANY DECISION MADE OR ACTION TAKEN OR NOT TAKEN IN RELIANCE ON THE CONTENT CONTAINED ON THE SITE.
1. Acceptance of the Terms
The Terms may be revised and updated from time to time, with or without any notice. Itamar Medical shall make reasonable efforts to post a prominent notice in case the Terms shall change substantially. Itamar Medical urges you to check the Last Revised date which appears at the top of the Terms and to review the Terms from time to time. You can review the most current version of the Terms at any time at: http://www.itamar-medical.com/terms-and-conditions/.
By logging-in, connecting to or using The Site, you acknowledge that the Terms constitute a binding and enforceable legal contract between Itamar Medical and you and that you possess the legal authority to enter into these Terms and to use the Site in accordance with these Terms, and to fully perform your obligations hereunder.
2. Itamar Medical and the Site
Itamar Medical is a medical device company which develops, markets and sells diagnostic medical devices based on the PAT™ (Peripheral Arterial Tone) signal. Our Site provides clinical information regarding such devices and the technologies incorporated therein via the Content available online, such as brochures, posters, presentations, videos and other marketing material. You may download and use the Content to help you learn on how to use the products. Any commercial use of the Content is strictly prohibited, without our prior explicit consent. The Site further offers to registered Users an interactive e-commerce venue for the purchase of products online, such as probes and other complementary disposable products to work with equipment they have purchased from Itamar Medical (collectively, the “Products”). Further, you may contact us with any question, submit a case for our experts’ review and reference or report a complaint or an incident that has occurred to you while using the Products.
The Content is offered online for your personal use only. You may not sell or resell any of the Content which you receive through the Site. The Site reserves the right at all times to terminate your account and cancel your order if we believe that your use of the Site may result in a breach of these Terms.
3. Permitted Uses
We authorize you to purchase our Products though the Site, and/or to view and download Content from The Site only for your use in connection with the evaluation, purchase or use of our Products and services. This authorization is not a transfer of any rights in the Content other than those expressly granted. Any copies you make of the Content (including by printing or by retaining electronic copies) are subject to the following restrictions:
• You may not remove, or disassociate, from any of the Content and/or Products any copyright, trademark or other proprietary notices contained in the materials (such as ©,™, or ®);
• You may not transfer the Content and/or Products to any other person.
4. Use Restrictions on the Site
There are certain conducts which are strictly prohibited on The Site. Please read the following restrictions carefully. Your failure to comply with the provisions set forth herein (as judged by us in our sole discretion), may result in the termination of your access to the Site and may also expose you to civil and/or criminal liability.
You may not, whether by yourself or anyone on your behalf:
• Infringe or violate any of the Terms.
• Use the Site and/or any interactions therein for any illegal, unlawful or unauthorized purposes.
• Use the Site in any form of spam, unsolicited mail or similar conduct.
• Allow access to your account to anyone other than yourself, including, without limitation, any persons who are under the age of 18 and any persons or entities which are not customers of Itamar Medical and have been registered to the Site lawfully. You accept full responsibility for any unauthorized use of the Site on your behalf.
• Use the Site for non-personal or commercial purposes without Itamar Medical’s express prior written consent.
• Interfere with or violate other Users’ rights to privacy and other rights, or harvest or collect data and information about other Users without their express consent, whether manually or automatically with the use of any robot, spider, crawler, any search or retrieval application, or use other automatic device, process or method to access the Site and retrieve, index and/or data-mine any information.
• Interfere with or disrupt the operation of the Site or the servers or networks that host the Site, or disobey any laws or regulations or requirements, procedures, policies, or regulations of such servers or networks.
• Submit or transmit to us through the Site any content, text or information that is abusive, harassing, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable or offensive, including content that infringes upon Intellectual Property rights and privacy rights, or any other unlawful content.
• Impersonate any person or entity or provide false information on the Site, whether directly or indirectly.
• Falsely state or otherwise misrepresent your affiliation with any person or entity, or express or imply that Itamar Medical or any third party endorses you, your website, your business, or any statement you make, or present false or inaccurate information about the Site.
• Bypass any measures we may use to prevent or restrict access to the Site.
• Copy, modify, alter, adapt, make available, translate, port, reverse engineer, decompile, or disassemble any portion of the Site in any way, unless permitted hereunder.
• Create a browser, frame, border environment or GUI around the Site.
• Link, including in-line linking, to elements on the Site, such as images, posters and videos,unless permitted hereunder.
5. Registration and User account on the Site
You may request to become a registered User on our Site by contacting our customer care representatives using the contact details provided at: http://www.itamar-medical.com/contact.php. We provide a user account only for Users who already exist in our database as customers of Itamar Medical. Our representatives will create a User account for you on our Site and provide you with a username and password. We reserve the right to accept or deny your request to open a User account online within 24 hours after the receiving thereof. To login to the Site, simply click on the “sign-in” button and submit the credentials provided to you by our representatives. You must safeguard and not disclose your username and password and supervise the use of your account. You hereby represent that you are solely responsible for your use of the Site. You are prohibited to allow access to your account to anyone other than yourself, including, without limitation, any persons or entities which are not customers of Itamar Medical.
You agree that you have the right to provide any and all information you submit to the Site and the information is only about yourself. You must provide Itamar Medical only with true, accurate and complete information. Otherwise, we will not be able to provide you with the Site and to contact you when necessary. You will be able to change your username and password by contacting our customer care.
6. Online Ordering and Payments
You may purchase Products online provided that you are an existing customer of Itamar Medical and you have opened a User account on the Site. To purchase Products online you need to click on the ‘Add to cart’ button for the items you would like to buy. When you are ready to finalize your purchase, you may proceed to the checkout section where you will be asked to provide your PayPal credentials, or, in the event that you do not have a PayPal account, be asked to provide PayPal with your credit card details for the purpose a single transaction. The use of the PayPal service is subject to PayPal’s legal terms and conditions and not to these Terms. To review PayPal’s terms and conditions, please visit the PayPal website at: https://cms.paypal.com/il/cgi-bin/marketingweb?cmd=_render-content&content_ID=ua/Legal_Hub_full&locale.x=en_US
The current Products’ rates are available online, as specified next to each Product posted on the Site. If no price has been specified, price shall be our price in effect at the time of delivery. All prices are quoted in U.S. Dollars, unless expressly stated otherwise. Prices are exclusive of all excise, sales, use and other taxes imposed by any federal, state, municipal or other government authority, all of which taxes shall be paid by you. Taxes will be added at check-out, according to the state zip code, as appears in your billing address. All Products offered for sale on the Site are sold subject to acceptance of the order by Itamar Medical, the availability of the Products and subject to these Terms. Payment for Products must be received by Itamar Medical prior to the acceptance of an order. If an item is out of stock you will be advised by e-mail or by telephone within 2 business days of our receipt of your order. If available, we may offer you an alternative Product. Otherwise, you may cancel your order.
We may revise or discontinue the sale of any Product at any time without prior notice to you. A change in a Product may occur after you place an order but before we ship the Product. As a result, Products you receive might display minor differences from the Products that you order.
You represent and warrant that you will pay all fees and taxes in a timely manner and in compliance with the prices posted online and payment terms. Failing to settle your payments will prevent you from receiving your order in time. We reserve the right, at our sole discretion, to delay the shipment of your order to the extent there is any overdue payment. We will deliver you the Products ordered only after we receive a confirmation from PayPal that all payments due to us have been made and accepted by PayPal.
7. Products’ Delivery
Certain Products sold by Itamar Medical require special handling as specified by federal and local regulations governing the transport of these Products. The method of shipment for these Products may be dictated by these regulations. Therefore, the shipment of certain Products to certain destinations may not be possible and shipping destinations may be changed from time to time. Therefore, we do not guarantee that your order shipment will be completed. You hereby represent and warrant that when placing an order, you will comply with all rules and regulations affecting the order shipment and you will bear all risk and liability upon yourself. We are not responsible for any loss or damages that may occur to the Products during their shipment. We shall not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond our control, including, without limitation, acts of nature, unavailability of supplies or sources of energy, riots, wars, fires, floods, epidemics, lockouts, strikes and slowdowns, delays in delivery by our suppliers, or acts or omissions of you. In the event of delay due to any such cause, time for delivery shall be extended for a period equal to the duration of the delay and you will not be entitled to refuse delivery or otherwise be relieved of any obligations as a result of the delay. If, as a result of any such cause, any scheduled delivery is delayed for a period in excess of thirty (30) days we may, at our option, by written notice to you, cancel that and all future deliveries without further liability or obligation of any kind. Products, on which delivery is delayed due to any cause within your control, may be placed in storage by us at your risk and account. You will be liable for all costs and expenses incurred by us in holding or storing Products for you or at your request.
Unless specific written instructions to the contrary are provided specifically by you, methods and routes of shipment will be selected by us but we will not assume any liability in connection with shipment nor shall the carrier be considered our agent. All shipments will be insured at your expense and made at your own risk, and you will be responsible for making all claims with carriers, insurers, warehousemen and others for miss-delivery, non-delivery, loss, damage or delay.Subject to the above sentence and to our right to stop delivery of Products in transit, title to and risk of loss for Products shall pass to you upon the earlier of delivery to you or to a carrier for shipment to you.
9. Return and Repair Policy
Please inspect any Product delivered to you upon receipt. If a Product delivered to you is not in working order, you must provide written notice to us no later than thirty (30) days from date of delivery to you. Itamar Medical reserves the right, at its sole option, to either repair or replace such Product. We will not repair or replace a Product for which a notice is not received within thirty (30) days from date of delivery to you. Any replacement Product shall be, at Itamar Medical’s sole option, new or remanufactured products. Please contact Itamar Medical customers’ service for returns by telephone: +1-888-748-2627 (US toll free) or by e-mail at: firstname.lastname@example.org. Notwithstanding the foregoing, if we receive written notice that one of our Products delivered to you is not compatible for use with the equipment you have purchased from Itamar Medical, we will be willing to replace such Product provided that the Product is undamaged, unopened and in an unused and re-saleable condition and is still wrapped in its original package. You must inform us in writing of your desire to cancel within seven (7) working days starting from the day after the Products are delivered to you. If you wish to cancel, please e-mail us at: email@example.com. Products must be returned to us at your cost and we highly recommend that when you return Products, you use a recorded/insured form of postage for your own protection. If returned Products are lost, we will not be liable for them; responsibility of the Products only returns to Itamar Medical once we have signed for receipt of the Products. Where Products which are not faulty are returned, we will refund you for the original purchase price less shipping costs and 10% re-stocking fee.
The Return Policy specified in this Section above does not cover any Product which has been (i) damaged by accident, misuse (including improper storage), abuse, in the User’s transportation of the Products, or by an act of God, (ii) modified; (iii) used in violation of our instructions for use and operation or specifications, (iv) used for any purpose other than one for which the Product was manufactured, (v) damaged by unauthorized repair, or the use of unauthorized parts.
11. Intellectual Property Rights
The Site and the Intellectual Property rights pertaining thereto, including, but not limited to, inventions, patents and patent applications, trademarks, trade names, logos, copyrightable materials, graphics, text, images, designs and any Content (including the “look and feel” of the Site), specifications, methods, procedures, algorithms, data, technical data, interactive features, source and object code, files, interface, GUI and trade secrets, whether or not registered (collectively, “Intellectual Property”), are owned and/or licensed to Itamar Medical and subject to copyright and other applicable intellectual property rights under United States laws, foreign laws and international conventions. You may not copy, distribute, display, execute publicly, make available to the public, reduce to human readable form, decompile, disassemble, adapt, sublicense, make any commercial use, sell, rent, lend, process, compile, reverse engineer, combine with other software, translate, modify or create derivative works of any material that is subject to Itamar Medical’s proprietary rights, including Itamar Medical’s Intellectual Property, either by yourself or by anyone on your behalf, in any way or by any means, unless expressly permitted in the Terms.
You are hereby prohibited from removing or deleting any and all copyright notices, restrictions and signs indicating proprietary rights of Itamar Medical, including copyright mark [©] or trademark [® or ™] contained in or accompanying the Content included on the Site, and you represent and warrant that you will abide by all applicable laws in this respect. You are further prohibited from using, diluting or staining any name, mark or logo that is identical, or confusingly similar to any of Itamar Medical’s marks and logos, whether registered or not.
12. Trademarks and Trade names
“ITAMAR MEDICAL”, “PAT”, “EndoPAT”, “WatchPAT”, Itamar Medical Corporation and Itamar Medical’s equipment and Products’ names referenced herein and all logos and other proprietary identifiers used by Itamar Medical in connection with the Site (“Itamar Medical Trademarks”) are all trademarks and/or trade names of Itamar Medical, whether or not registered. All other trademarks, service marks, trade names and logos which may appear on the Site belong to their respective owners (“Third Party Marks”). No right, license, or interest to Itamar Medical Trademarks and/or to the Third Party Marks is granted hereunder, and you agree that no such right, license, or interest shall be asserted by you with respect to Itamar Medical Trademarks or the Third Party Marks and therefore you will avoid using any of those marks, unless expressly permitted herein.
13. Links to Third Party Websites
The Site’s availability and functionality depends on various factors, such as communication networks, software, hardware and Itamar Medical’s services’ providers and contractors. Itamar Medical does not warrant or guarantee that the Site will operate at all times without disruption or interruption, or that it will be immune from unauthorized access or error-free.
15. Changes to the Site
Itamar Medical may change the Site’s layout and design from time to time, and the availability of the Content and service included therein, without giving any prior notice on the Site. You hereby agree and acknowledge that Itamar Medical is not responsible for any errors or malfunctions that may occur in connection with the performing of such changes.
16. Account Changes and Cancellation of User Account
If you wish to either change your user name or password to log-in on the Site, or cancel and remove your account from the Site and on any matters that extend the usual management of your account and the Site, you may contact Itamar Medical at: firstname.lastname@example.org with such specific request. Your account on the Site will terminate within reasonable time following your request, and from that date of termination you will no longer be able to access your account. In any other matters, we will attempt to comply with any request to the best of our capabilities.
17. Disclaimer and Warranties
ITAMAR MEDICAL DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, THE INABILITY TO USE OR OPERATE, OR THE RESULTS OF THE USE OR OPERATION OF THE PRODUCTS AVAILABLE ON THE SITE OR THE USE OF THE CONTENT AND MATERIALS AVAILABLE ON THE SITE, INCLUDING IN CONNECTION WITH ANY TAX OR CUSTOMS LAWS AND REGULATIONS IN YOUR STATE OF RESIDENCE, OR ANY OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING FDA RULES AND REGULATIONS, AND IN CONNECTION WITH SHIPMENT AND STORAGE CONDITIONS.
THE SITE, INCLUDING WITHOUT LIMITATION ANY CONTENT, DATA, PRODUCTS, MARKETING MATERIALS, E-LEARNING MATERIALS AND ANY INFORMATION RELATED THERETO, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF USE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. ITAMAR MEDICAL AND ITAMAR MEDICAL AFFILIATES, JOINTLY AND SEVERALLY, DISCLAIM AND MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY, QUALITY, AVAILABILITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, OR EFFECTIVENESS OF ANY CONTENT, REPORTS, DATA, RESULTS, OR OTHER INFORMATION OBTAINED OR GENERATED BY YOU RELATED TO YOUR USE OF THE SITE. ITAMAR MEDICAL DOES NOT ENDORSE ANY ENTITY, PRODUCT OR SERVICE MENTIONED IN ANY USER GENERATED CONTENT AVAILABLE ON THE SITE. THE USE OF THE SITE IS ENTIRELY AT YOUR OWN RISK AND NEITHER ITAMAR MEDICAL NOR ITAMAR MEDICAL AFFILIATES SHALL HAVE ANY LIABILITY RELATING TO SUCH USE.
ITAMAR MEDICAL DOES NOT WARRANT THAT THE OPERATION OF THE SITE IS OR WILL BE SECURE, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS; OR THAT ANY ERRORS IN THE SITE WILL BE CORRECTED. ITAMAR MEDICAL MAY CORRECT, MODIFY, AMEND, ENHANCE, IMPROVE AND MAKE ANY OTHER CHANGES TO THE SITE AT ANY TIME OR TO DISCONTINUE DISPLAYING OR PROVIDING ANY CONTENT OR FEATURES WITHOUT ANY NOTICE TO YOU.
ITAMAR MEDICAL DOES NOT ENDORSE OR RECOMMEND ANY SPECIFIC MEDICAL TREATMENT. THE CONTENT ON THE WEBSITE IS NOT MEDICAL ADVICE, IS NOT INTENDED TO BE USED FOR MEDICAL DIAGNOSIS OR TREATMENT AND SHOULD NOT BE USED, OR CONSTRUED AS SUCH.
YOU ASSUME AND HAVE SOLE RESPONSIBILITY FOR BUYING, USING AND OPERATING THE PRODUCTS IN COMPLIANCE WITH ALL FEDERAL, STATE AND LOCAL RULES, REGULATIONS AND ORDINANCES INCLUDING WITHOUT LIMITATION, THOSE RELATING TO THE PERSONNEL AUTHORIZED TO USE AND/OR OPERATE SUCH PRODUCTS. YOU FURTHER HAVE THE SOLE AND ULTIMATE RESPONSIBILITY FOR THE PROVISION OF ANY MEDICAL AND/OR SURGICAL OR OTHER PROCEDURES PERFORMED THROUGH, IN CONJUNCTION WITH, OR BY THE USE IN ANY WAY, OF THE PRODUCTS AND FOR THE PROVISION OF ADEQUATE AND EFFECTIVE SAFEGUARDS AND SAFETY DEVICES NECESSARY TO PROVIDE A SAFE FACILITY AND TO FULLY PROTECT ALL YOUR PERSONNEL, PATIENTS AND THIRD PARTIES THAT MAY COME IN CONTACT WITH THE PRODUCTS FROM BODILY INJURY, DEATH OR OTHER DAMAGE THAT OTHERWISE MAY RESULT FROM THE USE, OPERATION, SETUP OR MAINTENANCE OF THE PRODUCTS.
YOU AGREE AND ACKNOWLEDGE THAT THE USE OF THE SITE IS ENTIRELY, OR TO THE MAXIMUM PERMITTED BY THE APPLICABLE LAW, AT YOUR OWN RISK.
18. Limitation of Liability
IN NO EVENT SHALL ITAMAR MEDICAL, INCLUDING ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS, AGENTS, PARENT COMPANIES, SISTER COMPANIES, SUBSIDIARIES AND OTHER AFFILIATES (TOGETHER “ITAMAR MEDICAL’S AFFILIATES”) BE LIABLE FOR ANY DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTIONS RESULTING FROM OR ARISING OUT OF THE SITE, OR THE USE OR INABILITY TO USE THE SITE, THE USE OF THE CONTENT AND MARKETING AND E-LEARNING MATERIALS POSTED ON THE SITE OR THE PURCHASE, USE OR INABILITY TO USE THE PRODUCTS, THE RESULTS GENERATED FROM THE PRODUCTS, THE QUALITY OF THE PRODUCTS, ANY DEFECT IN THE PRODUCTS, FAILURE OF THE PRODUCTS TO PERFORM AS REPRESENTED OR EXPECTED, LOSS OF GOODWILL OR PROFITS, THE PERFORMANCE OR FAILURE OF ITAMAR MEDICAL TO PERFORM UNDER THESE TERMS, ANY OTHER ACT OR OMISSION OF ITAMAR MEDICAL BY ANY OTHER CAUSE WHATSOEVER; OR BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, REGARDLESS OF WHETHER ANY OF ITAMAR MEDICAL’S AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, YOUR SOLE REMEDY WILL BE LIMITED TO THE REPAIR OR CORRECTION OF DEFECTIVE PRODUCTS, OR MALFUNCTIONS, IF APPLICABLE, AS PROVIDED UNDER THE TERMS OF ANY APPLICABLE PRODUCT WARRANTY. NO ACTION MAY BE BROUGHT BY USER FOR ANY BREACH OF THESE TERMS MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION. THE AMOUNT OF THE PURCHASE PRICE FOR THE PRODUCTS IS A CONSIDERATION IN LIMITING ITAMAR MEDICAL’S LIABILITY. PLEASE NOTE THAT SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SUCH LIMITATIONS MAY NOT APPLY TO USER.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ITAMAR MEDICAL SHALL BE RELIEVED FROM ANY OBLIGATION TO REPAIR OR REPLACE A PRODUCT OR ANY LIABILITY ARISING OUT OF OR RELATING TO ANY SERVICE TO OR MODIFICATION OR ALTERATION OF THE PRODUCTS RENDERED OR PERFORMED BY ANY PARTY OTHER THAN ITAMAR MEDICAL OR ITS AUTHORIZED SERVICE REPRESENTATIVES.
THESE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SHALL APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE. THE PARTIES AGREE THAT THESE LIMITATION OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR ITAMAR MEDICAL’S SALE OF PRODUCTS OR SERVICES TO YOU, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.
You agree to defend, indemnify and hold harmless Itamar Medical’s Affiliates from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of the Site; (ii) your violation of any term of theseTerms; (iii) your violation of any third party rights, including without limitation any intellectual property rights or privacy right of such third party; and (iv) any damage of any sort, whether direct, indirect, special or consequential, you may cause to any third party with relation to the Site. It is hereby clarified that this defense and indemnification obligation will survive these Terms.
You further agree to indemnify, defend and hold Itamar Medical harmless from any and all expenses, costs and damages, including attorney’s fees, for any claims for bodily injury, death or other damage arising out of the use or operation of the Products, including, without limitation, any medical and/or surgical procedures performed by you using the Products unless said bodily injury, death or other damage is caused solely by the negligence of Itamar Medical or solely as a result of a defect in the Products to which you were not aware of before the said bodily injury.
20. Export rules
Our Products will be delivered by us to customers within any location in the US or Canada only. You agree that the Products will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States or the Canadian export laws, restrictions or regulations (collectively the “Export Laws”). In addition, if the Products are identified as an export controlled item under the Export Laws, you represent and warrant that you are not a citizen of, or located within, an embargoed or otherwise restricted nation and that you are not otherwise prohibited under the Export Laws from receiving the Products.
21. Amendments to the Terms
Any changes to these Terms will be effective upon the earlier of our dispatch of an e-mail notice to you or our posting of notice of the changes on the Site, provided that, these changes will not apply to Products purchased prior to the effective date of such changes. These changes will be effective immediately for new users of the Site and for all Products purchased after the effective date of the change, or as otherwise required by applicable law. You hereby agree and acknowledge to accept and to be bound by any of the changes made in the Terms and the accompanying policies. Should you continue to use the Site after the changes were made, it will indicate your acceptance to the new Terms. You are recommended to review the Terms from time to time, as they may change every once in a while.
22. CAN-SPAM, Telephone Consumer Protection Act and Similar Law
Your use of the Site establishes a business or other applicable relationship with us for purposes of CAN-SPAM, the Telephone Consumer Protection Act, and all other applicable law that addresses unsolicited commercial communications. By accessing, or continuing to access, the Site or sending e-mails to us, you agree that we or our agents may call, e-mail, or otherwise communicate with you regarding promotion of the sale, lease, or exchange of goods, services, real property, or any other thing of value. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
23. Account and Service Termination
At any time, Itamar Medical may block your access to the Site and/or temporarily or permanently limit, suspend or terminate your account, for any reason, at its sole discretion, in addition to any other remedies that may be available to Itamar Medical under any applicable law. Such actions by Itamar Medical may be taken if Itamar Medical deems that you have breached any of these Terms in any manner.
Additionally, Itamar Medical may at any times, at its sole discretion, cease the operation of the Site or any part thereof, temporarily or permanently, without giving any prior notice. You agree and acknowledge that Itamar Medical does not assume any responsibility with respect to, or in connection with the termination of the Site’ operation and loss of any data, as long as your pending order is handled properly.
24.1 These Terms do not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the parties hereto.
24.2 These Terms, and the rights and remedies provided hereunder, and any and all claims, disputes and controversies arising hereunder or related hereto, their interpretation, or the breach, termination or validity thereof, the relationships which result from these Terms, Itamar Medical’s advertising, or any related purchase shall be governed by, construed under and enforced in all respects solely and exclusively in accordance with the laws of the State of Israel without reference to its conflict-of-laws principles.
24.3 You expressly consent, and submit to the exclusive jurisdiction of and stipulate that venue shall be in the court of competent jurisdiction located in city of Tel-Aviv, Israel, for the adjudication or disposition of any claim, action or dispute arising directly or indirectly out of this Agreement or the Site. You further waive any objection to jurisdiction and venue of any action instituted hereunder, and further agree not to assert any defense based on lack of jurisdiction or improper venue, including forum nonconvenience and agree that process may be served in a manner authorized by applicable law or court rule.
24.4 Itamar Medical may assign its rights and obligations hereunder and or transfer ownership rights and title in the Site to a third party without your consent or prior notice to you.
24.5 Your rights and obligations under the Terms are not assignable. Any attempted or actual assignment thereof by you will be null and void without Itamar Medical’s prior explicit and written consent.
24.6 If any provision of these Terms is found to be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from this Terms and will not affect the validity and enforceability of any remaining provisions.
24.7 No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.
24.8 These Terms constitute the entire terms and conditions between you and Itamar Medical relating to the subject matter herein and supersedes any and all prior or contemporaneous agreements, understandings, promises, conditions, negotiations, covenants or representations, whether written or oral, between us, including, without limitation, those made by or between any of our respective representatives, with respect to the Products and the Site. You agree that no parol evidence shall be admitted in any judicial proceeding to establish any terms inconsistent with these Terms. You agree that you will make no claim at any time or place that these Terms have been orally altered or modified or otherwise changed by oral communication of any kind or character. You further agree that you are not relying upon any promise, inducement, representation, statement, disclosure or duty of disclosure of Itamar Medical in entering into these Terms.
24.9 The provisions of the Products’ Limited Warranty, Intellectual Property, Disclaimer and Warranties, Limitation of Liability, Indemnification and General sections, will survive the termination, or expiration of the Terms.
25. For information, questions or notification of errors, please contact:
If you have any questions (or comments) concerning the Terms or the Site, you are most welcomed to send us an email or otherwise contact us to the following address and we will make an effort toreply within a reasonable timeframe:
Headquarter – Israel:
Itamar Medical Ltd.
9 Halamish Street,
Caesarea, 38900 Israel
Tel + 972 4 6177000
Fax + 972 4 6275598
Itamar Medical Inc.
3290 Cumberland Club Drive
Atlanta, Georgia 30339, USA