SAPIYEN LLC DBA PROTOSTHETICS
TERMS AND CONDITIONS FOR THE ONLINE SALE OF GOODS AND SERVICES
THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
BY PLACING AN ORDER FOR PRODUCTS OR SERVICES FROM PROTOSTHETICS, VIA OUR WEBSITE, ANY SUBDOMAIN, ANY DEVICE APPLICATION,BY EMAIL, OR ANY OTHER ELECTRONIC MEDIUM (HEREINAFTER “ONLINE ACCESS”), AS WELL AS VIA PHYSICAL MAIL, YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS.
YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES VIA ANY ONLINE ACCESS IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE'S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.
These terms and conditions (these "Terms") apply to the purchase and sale of products and services through any Online Access portal. These Terms are subject to change by Sapiyen LLC DBA Protosthetics, a Delaware limited liability company, including its officers, directors, representatives, advisors, successors and assigns (referred to as “Protosthetics”, "us", "we", or "our" as the context may require) without prior written notice at any time, in our sole discretion. The latest version of these Terms will be posted on our website at http://www.protosthetics.com/ (the “Site”), and you should review these Terms before purchasing any product or services that are available through any Online Access. Your continued use of the Site (or any Online Access portal) after a posted change in these Terms will constitute your acceptance of and agreement to such changes.
These Terms are an integral part of the Website Terms of Use that apply generally to the use of our Site. You should also carefully review our Privacy Policy before placing an order for products or services through any Online Access (see Section 9).
You agree that your order is an offer to buy, under these Terms, all products and services listed in your order. All orders must be accepted by us or we will not be obligated to sell the products or services to you. We may choose not to accept any orders in our sole discretion. We track the status of properly placed orders. Acceptance of your order and the formation of the contract of sale between Protosthetics and you will not take place unless and until you have received your order confirmation email. You have the option to cancel your order at any time before we have sent your order confirmation email by contacting us at success@protosthetics.com.
(a) Our products and services are tailored to meet customers’ needs, and pricing is dependent upon the specific nature of the products and services requested. Each component charged for a product or service will be the price in effect at the time the order is placed. Price increases will only apply to orders placed after such changes. Unless otherwise noted, prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your merchandise total and will be itemized in your shopping cart and in your order confirmation email. We are not responsible for pricing, typographical, or other errors in any offer by us and we reserve the right to cancel any orders arising from such errors.
(b) Unless otherwise agreed in writing, terms of payment are Net 30 from the date of delivery. We accept Visa, Master Card, Discover, American Express, Diners Club, JCB Payments, or ACH Transfer for all purchases. You represent and warrant that (i) the payment information you supply to us is true, correct, and complete, (ii) you are duly authorized to use such payment method for the purchase, and (iii) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any.
(c) Customers tax exempt under Section 501(c)(3) of the Internal Revenue Code shall provide, upon our request, a copy of their Tax Determination letter (or similar evidence) of tax-exempt status.
(a) We will arrange for shipment of the products to you. Please check the individual product page for specific delivery options. You will pay all shipping and handling charges specified during the ordering process unless otherwise arranged and accepted in advance to bill your shipping account directly.
(b) Title and risk of loss pass to you upon our transfer of the products to the carrier. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments. If insurance on shipping is desired, it must be requested by the Purchaser and we will bill for that additional service.
Our products are custom designed and, therefore, are not returnable once ordered; provided that, products that do not meet our published specifications (“defective products”) or products incorrectly shipped and not in accordance with an order (“mis-shipped products”), may be returned as set forth herein. For defective products or mis-shipped products, we will issue a refund of your purchase price, less the original shipping and handling costs, provided such return is made within 30 days of shipment and provided such products are returned in their original condition. To return products, you must contact us at success@protosthetics.com.
You are responsible for all shipping and handling charges on returned items. You bear therisk of loss during shipment. We therefore strongly recommend that you fully insure your return shipment against loss or damage and that you use a carrier that can provide you with proof of delivery for your protection.
THE PRODUCTS ARE SOLD ON AN "AS IS, WHERE IS" BASIS, AND WE MAKE NO WARRANTIES, AND YOU HEREBY WAIVE, ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING OUT OF OR IN CONNECTION WITH THE PURCHASE OF PRODUCTS, OR THE USE OR PERFORMANCE THEREOF, OR THE COURSE OF DEALING OR PERFORMANCE UNDER THESE TERMS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE SHALL NOT BE LIABLE TO YOU, OR TO ANY OTHER PERSON, FOR ANY LOSS OF PRODUCTION, WORK, DATA, USE, BUSINESS, GOODWILL, REPUTATION, REVENUE OR PROFIT, ANY DIMINUTION IN VALUE, COSTS OF REPLACEMENT GOODS OR SERVICES, OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OR LOSSES, WHETHER DIRECT OR INDIRECT.
You shall indemnify and hold us harmless, on an after tax basis, from and against any and all liabilities, causes of action, claims, suits, penalties, damages, losses, costs or expenses (including reasonable attorneys’ fees and expenses), obligations, liabilities, demands and judgments (collectively, a “Liability”) to the extent resulting from: (a) your use of any product outside approved specifications; (b) your use of any product for or on behalf of any third party user or patient; (c) your failure to comply with and/or adopt industry best practices, including without limitation the modificationor adaptation any product for optimal use by any third party user or patient; (d) injury to persons, property or the environment including any Liability based on strict liability in tort, negligence, breach of warranties or your failure to comply fully with applicable law or regulatory requirements; provided, that the foregoing indemnity shall not extend to any Liability to the extent resulting from our gross negligence or willful misconduct. In addition to the foregoing, you agree to indemnify and hold us harmless against any Liability associated with or resulting from your use of any product for or on behalf of any third party medical patient, including without limitation: (i) any clinical decisions for such third-party patients, (ii) any violation of applicable federal or state healthcare laws related to patients (including but not limited to obligations under the Health Insurance Portability and Accountability Act of 1996, as amended), or (iii) use of any product outside its prescribed specifications or in a manner inconsistent with industry best practices. You further understand and agree that (A) you are solely responsible for any Liability related to third party/patient use of products (including any related medical diagnoses) for so long as our product operates within its prescribed specifications, and (B) the 3D printing industry is nascent and some products are new to the marketplace, so you are required to exercise an increased level of care and precaution to ensure the safety and health of your third-party patients or users.
You agree to comply with all applicable laws and regulations of the various states and of the United States, including all Export Regulations, as defined below. You represent and warrant that you are buying products or services from the Site for your own use only, and not for resale or export. Products and services purchased from the Site may be controlled for export purposes by export regulations, including but not limited to, the Export Control Reform Act of 2018 (ECRA) (Title XVII, Subtitle B of Pub. L. No. 115-232), the Export Administration Regulations (15 C.F.R. 768-799) for which ECRA is permanent statutory authority, the International Traffic in Arms Regulations (22 C.F.R. 120-128 and 130) and their successor and supplemental regulations (collectively, "Export Regulations").
We respect your privacy and are committed to protecting it. Our Privacy Policy, www.protosthetics.com/privacy-policy, governs the processing of all personal data collected from you in connection with your purchase of products or services through the Site.
We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware.
(a) YOU AND PROTOSTHETICS 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 OF PRODUCTS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
(b) 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 12. (The AAA Rules are available at adr.org 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 the 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.
If you prevail on any claim that affords the prevailing party attorneys' fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided by law.
(c) If the arbitration requires in person attendance, you agree that such arbitration will be located in Fargo, North Dakota.
(d) You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR PROTOSTHETICS 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 considerthe 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.
You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section 13 is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.
The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Protosthetics.
These Terms do not and are not intended to confer any rights or remedies upon any person other than you.
(a) To You. We may provide any notice to you under these Terms by: (i) sending a message to the email address you provide or (ii) by posting to the Site. Notices sent by email will be effective when we send the email and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current.
(b) To Us. To give us notice under these Terms, you must contact us as follows: (i) by email to contact@protosthetics.com; or (ii) by personal delivery, overnight courier or registered or certified mail to Sapiyen LLC DBA Protosthetics, 205 Main Ave E., West Fargo, ND 58078. We may update the facsimile number or address for notices to us by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by facsimile transmission or overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
17. Severability. If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.
18. Entire Agreement. Our order confirmation, these Terms, our Website Terms of Use and our Privacy Policy will be deemed the final and integrated agreement between you and us on the matters contained in these Terms.
