Last updated: November 25, 2020
Patient Safety, Inc. and/or its affiliates ("Patient Safety,” "we" or "us") operate an online store ("Patient Safety Online Store") located at https://www.marketing.patientsafetyinc.com/ and https://www.sleepsat.com/ from which you ("you,” "your,” or "Customer") may purchase products and services ("PSI Products,” PSI Products, Software and Services).
The legal agreements, terms and conditions set out below (this "Agreement") govern your use of the products, software and services ("Products") provided by PSI pursuant to your order (the "Order").
These Terms apply to the content and functionality of the Patient Safety website, SleepSat website, and to all Patient Safety Products and Subscription Services.
1. Information that you provide to us
You may choose to or we may invite you to submit comments or ideas about improvements to the Patient Safety or our products or services ("Feedback"). If you submit a Feedback to us, we will presume that your submission was voluntary, unsolicited by us, and delivered to us without any restrictions on our use of the Feedback. You also agree that Patient Safety has no fiduciary or any other obligation to you in connection with any Feedback you submit to us, and that we are free to use your Feedback without any attribution or compensation to you.
2. Products, Content and Specifications.
Details of the products and services available for purchase in the Patient Safety Online Store ("Patient Safety Products") are set out in the Patient Safety. All features, content, specifications, products and prices of products and services described or depicted in this Patient Safety are subject to change at any time without notice. Unless expressly noted, all weights, measures and similar descriptions are approximate and are provided for convenience purposes only. Packaging may vary from that shown, and the appearance of a product in reality may differ from its appearance to you on the Patient Safety due to the limitations of the systems that you use to access the Patient Safety. The inclusion of any products or services in the Patient Safety at a particular time does not imply or warrant that these products or services will be available at any time. Occasionally, the distribution of a certain product or service may be delayed for a number of reasons. In such event, we will make reasonable efforts to notify you of the delay and keep you informed of the revised delivery schedule. By placing an order, you represent that the products ordered will be used only in a lawful manner.
3. Software and Service Product Subscriptions
Subscription terms. We may offer you the ability to purchase subscriptions for Patient Safety software licenses and/or other Patient Safety services. Terms specific to a subscription will be disclosed in the product description or otherwise communicated to you at or prior to the time at which you purchase the subscription, and by purchasing the software license and / or subscription you are agreeing to those terms.
- Free trials and promotional periods. If a subscription commences with a free trial or a promotional period, you will have the right to cancel the subscription prior to the end of the trial or period. If we do not provide you with an online cancellation mechanism, then you may exercise this cancellation right by contacting us. If you do not cancel, we will bill you at the end of the free trial or promotional period, and your subsequent cancellation rights will be in accordance with the terms specific to the subscription.
- Renewals & Cancellations. Subscriptions and/or software licenses will auto-renew at the end of the term period. Although plans may offer more frequent payment options, term periods are for one (1) year. If you choose not to renew at the end of the current term period, you may notify us at any time during the current term period of your decision to cancel at the end of the term. You may exercise this right by contacting us and submitting the request in written(electronic) format. Early cancellation is not permitted. No refunds or release from payment obligation will be issued if you choose to discontinue using services during the current term.
4. Obligations of Customer
Compliance. Customer shall not make any claims or statements in its marketing materials, communications or any other materials or to its customers or any other individuals or entities regarding the use, functionality or any other aspect of PSI Software or Services that exceed or are otherwise inconsistent with the FDA allowed claims regarding the PSI Software. In using PSI Software, Customer shall comply with all FDA requirements and all other laws, rules and regulations applicable to PSI Software or the use thereof. Customer shall use PSI Products, Services, and Software in a safe and appropriate manner and shall comply with and conform to all national, state, municipal and other laws, ordinances and regulations in any way relating to the possession, use or maintenance of the Products.
Indemnification. Customer agrees to indemnify and hold PSI and its owners, employees and agents, harmless against any and all claims, demands, damages, costs, and expenses, including reasonable attorney's fees for the defense thereof, arising from or relating to the conduct or management of Customer's business, or from any breach on the part of Customer of any term or condition of this Agreement, or from any act of intentional misconduct or negligence of Customer, its agents, contractors, employees, representatives, invitees or customers. Customer shall indemnity PSI against, and hold PSI harmless from, any and all claims, actions, suits, proceedings, costs, expenses, damages, and liabilities, including reasonable attorneys' fees and costs, arising out of, connected with, or resulting from Customer's use of the Products and/or PSI Software or Services, including without limitation the manufacture, selection, delivery, possession, use, operation, or return of the same. In case of any action or proceeding brought against PSI by reason of any such claim, Customer, upon notice from PSI, covenants to defend such action or proceeding by counsel acceptable to PSI. Customer acknowledges and agrees that his/her/its credit card information shall be stored by a third party vendor, not PSI, and agrees to indemnify and hold PSI and its owners, employees and agents harmless against any and all claims, demands, damages, costs and expenses related to the use, storage, or otherwise relating to Customer's credit card or credit card information.
5. Intellectual Property and Property Rights
"PSI Confidential Information" shall mean all information existing as of the Start Date listed on the Order or thereafter developed in which PSI has a proprietary interest and that there is a legitimate business reason for guarding against unauthorized use or disclosure, including, but not limited to, trade secrets, software, formulas, patterns, compilations, programs, business practices, devices, methods, techniques or processes. Confidential Information shall be deemed to include the contents of this Agreement. Confidential Information does not include information that: (i) is or hereafter becomes generally known through no fault of, or breach of this Agreement by Customer; (ii) PSI provides to persons without restriction on disclosure; (iii) is shown to have been independently developed or created during the term of this Agreement by a third person(s) and to have become generally known; or (iv) is shown to have been independently developed or created by Customer.
Ownership. You shall not obtain any ownership rights in any PSI Confidential Information. All PSI Confidential Information is, and shall at all times be and remain, the sole and exclusive property of PSI, and the Customer shall have not right, title, or interest therein or thereto except as expressly set forth herein. If PSI shall so request, Customer shall execute and deliver to PSI such documents as PSI shall deem necessary or desirable for purposes of recording or filing to protect the interest of PSI in PSI Software or Services, and/or any PSI Confidential Information.
Reverse Engineering; Derivative Works. Customer shall not and shall not permit any other individual or entity, to: (i) reverse engineer PSI Software or Services; (ii) create any derivative works; or (iii) demonstrate or display for any purpose other than the purposes licensed under this Agreement or as otherwise approved by PSI.
Publication. Customer during and after the term of this Agreement, shall not commit, or cause to be committed, any act which constitutes "publication", as that term is defined and interpreted under 17 U.S.C. §101, of any copyrightable portion of any PSI Products, Software or Services, or any of PSI Confidential Information, without the prior written authorization of PSI.
Confidentiality and Nondisclosure. Customer's relationship to PSI and the terms of this Agreement create a relationship of trust and confidence between PSI and Customer. In the course of performance of this Agreement, PSI may disclose to Customer certain PSI Confidential Information, and Customer may otherwise learn or obtain PSI Confidential Information. Customer agrees to safeguard the confidentiality and prevent the unauthorized use or disclosure of any PSI Confidential Information, including abiding by the following specific restrictions:
Return of Materials. Unless instructed differently by PSI, Customer shall immediately return all PSI Confidential Information, and any PSI Products, Software or Services and PSI materials, supplies, documents, technical data or things in Customer's possession or under its control upon the termination of this Agreement for any reason. Thereafter, Customer shall not retain copies (in any medium) of any PSI Confidential Information. Upon request of PSI, Customer shall certify compliance with the foregoing in writing within fifteen (15) days.
LICENSE; RESTRICTIONS. PSI grants to Customer, a nonexclusive, nontransferable, nonassignable, revocable, limited license during the term of this Agreement, to access and use PSI Software or Services, for purposes of conducting Customer's own internal business and operations, including the provision of home sleep screenings to consumers using PSI Software or Services and the reports generated by PSI Software. PSI shall provide Customer with connectivity to the SatScreen Connection Center and provide support and trouble shooting with respect to any issues associated with PSI software and / or services. Except as expressly set forth herein, no express or implied license or right of any kind is granted regarding PSI Software or Services, including any right to obtain possession of any source code or other technical material relating to PSI Software or Services, or regarding PSI's trademarks or service marks. All rights not expressly granted to you are reserved to PSI.
7. Shipping Taxes and Returns
This Section 7 applies to Patient Safety Products that are physical goods. For clarity, this Section 7 applies despite any contrary terms in any invoice or purchase order.
Shipping. Orders are shipped using carriers selected by Patient Safety. The shipping fees you will be charged, if any, will be provided to you before you confirm your order. If we provide you with an estimated shipping date, the estimated delivery date is not guaranteed, and inventory shortages or events beyond our control could impact the delivery date. Patient Safety is not liable for delivery later than the estimated delivery date, or for any loss, damage, or penalty you may incur from a delay in shipment or delivery.
Taxes. You or PSI, at your expense shall report, pay and discharge when due all license and registration fees, assessments, sales, use and property taxes, gross receipts, taxes arising out of receipts from use or operation of the Products, together with any penalties or interest thereon, imposed by any state, federal or local government or any agency, or department thereof, whether or not the same shall be assessed against or in the name of PSI or yourself. You agree that you will pay applicable taxes and duties in addition to the purchase price of the goods.
Returns. See our Return Policy for returns and warranty claims.
Sanctions and export policy. You may not use the Patient Safety or purchase any Patient Safety Product in or for the benefit of a country, organization, entity, or person embargoed or blocked by any government, including those on sanctions lists identified by the United States Office of Foreign Asset Control (OFAC). We do not claim, and we cannot guarantee that the Patient Safety or any Patient Safety Product is or will be appropriate or available for any location or jurisdiction, comply with the laws of any location or jurisdiction, or comply with laws governing export, import, or foreign use.
8. Your account
We may require that you create an account to access the Patient Safety, including to make purchases. If we do so, you must provide accurate information about yourself when you create an account and ensure that you update us if that information changes. You must ensure that your login details remain confidential. You are responsible for any activity, including any purchases made, under your account. We reserve the right to terminate your account at any time and for any reason.
9. Payment and Credit Cards.
All payments shall be paid in advance on or before the first day of each month to PSI via credit card. You hereby authorize PSI to charge the credit card listed on the Order for the amount specified on such Order for the entire term of this Agreement. You agree to keep the credit card information on file with PSI current and if you fail to do so PSI, in its sole discretion, may seek any remedies available to it in law or equity, including, but not limited to demanding return of all products provided by PSI, withhold performance and discontinue service and locking/deactivating your account. In addition, if the invalid status of the credit card on file with PSI remains invalid for a period of thirty (30) days without the required updates to allow PSI to charge Customer's account, the monthly rate set forth on the Order shall be increased by fifteen percent (15%) for the remainder of the term. PSI may, in its sole discretion, levy a late payment charge of $25 per month on any amount that is overdue. Customer understands and agrees that his/her/its credit card will be billed for the fees set forth on the Order plus applicable state sales tax. Customer agrees that he/she/it will pay for all products and services purchased from PSI and that PSI may charge Customer's payment method for any for any products or services ordered and for any additional amounts (including any taxes and late fees, as applicable) that may be accrued by or in connection with any order. CUSTOMER IS RESPONSIBLE FOR TIMELY PAYMENT OF ALL FEES AND FOR PROVIDING PSI WITH A VALID PAYMENT METHOD (CREDIT CARD) FOR ALL FEES.
Default. If Customer fails to make any payment due to PSI within ten (10) days after the same is due and payable, or if Customer fails to observe, keep or perform any other provision set forth herein required to be observed, kept or performed by Customer, PSI shall have the right to exercise any one or more of the following remedies: (a) declare the entire amount of the contract immediately due and payable without notice or demand; (b) sue for and recover all rents and other payments, then accrued or thereafter accruing; (c) take possession of the Products, without demand or notice, wherever the same may be located, without any court order or other process of law and Customer hereby waives any and all damages occasions by such taking for possession; (d) withhold performance and discontinue service including locking/deactivating Customer's account and access to services; (e) terminate this Agreement; and/or (f) pursue any other remedy at law or equity. Notwithstanding any repossession or any other action, which PSI may take, Customer shall be and remain liable for the full performance of all obligations on the part of the Customer to PSI. All of PSI's remedies are cumulative and may be exercised concurrently or separately.
10. Governing Law.
This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Ohio, without regard to its rules governing conflicts of laws. The parties consent to the exclusive jurisdiction of the courts of the State of Ohio in Franklin County, and the United States District Court, for the Southern District of Ohio, Eastern Division and waive any contention that any such court is an improper venue for enforcement of this Agreement. Neither party may assert or raise a cause of action, claim, defense or counterclaim against the other party arising under this Agreement, more than one (1) year from the date that same accrued except that a claim by PSI for amounts due hereunder may not be asserted or raised more than two (2) years from the date that same accrued. In the event Customer is in breach, or threatens to breach any covenants of this Agreement, Customer acknowledges and agrees that PSI will be greatly damaged, and such breach(es) will be irreparable and difficult to quantify; therefore, PSI may apply to any court of competent jurisdiction in the United States or any other jurisdiction accepting jurisdiction under this Section 14, who, notwithstanding the provisions of this Section 14 (Governing Law), will apply the laws of its own jurisdiction in determining whether relief shall be granted to PSI, for injunctive or other equitable relief to restrain such breach or threat of breach, temporary or permanent, without impairing, invalidating, negating or voiding PSI's rights to relief either at law or in equity.
11. Electronic Contracting.
Customer acknowledges and agrees that he/she/it has the ability to enter into agreements and/or make transactions electronically, CUSTOMER ACKNOWLEDGES THAT HIS/HER/ITS ELECTRONIC SUBMISSIONS CONSTITUTE HIS/HER/ITS AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANACTIONS. CUSTOMER'S AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSATIONS ENTERED ITNO, INCLUDING NOTICES OF CANCELLATION POLICIES, CONTRACTS AND ORDERS. In order to access and retain your electronic records, Customer may be required to have certain hardware and software, which are his/her/its sole responsibility. PSI is not responsible for typographic errors.
12. DISCLAIMER OF WARRANTIES.
PSI PRODUCTS, SOFTWARE OR SERVICES AND ALL PRODUCTS IS PROVIDED "AS IS," AND PSI MAKES NO, AND HEREBY DISCLAIMS ALL, OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE PSI PRODUCTS, SOFTWARE OR SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED OR TO BE PROVIDED BY PSI, OR OTHERWISE ARISING UNDER THIS AGREEMENT. PSI DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF PSI SOFTWARE OR SERVICES SHALL BE UNINTERRUPTED OR ERROR FREE.
13. LIMITATION OF LIABILITY.
PSI'S MAXIMUM LIABILITY TO CUSTOMER ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL BE IN THE AGGREGATE OF AND LIMITED TO THE TOTAL FEES PAID BY CUSTOMER TO PSI DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL PSI, ANY PARENT, SUBSIDIARY, AFFILIATE, OR LICENSOR, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SHAREHOLDERS, OR REPRESENTATIVES, BE LIABLE TO ANY THIRD PARTY, FOR DAMAGES OF ANY KIND; OR TO CUSTOMER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, USE OR GOODWILL RELATED TO OR ARISING OUT OF THIS AGREEMENT AND/OR CUSTOMER'S USE OF PSI PRODUCTS, SOFTWARE OR SERVICES OR RESULTING FROM OR IN CONNECTION WITH PSI'S DEFAULTS HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE PSI SOFTWARE OR OTHER PRODUCTS OR SERVICES HEREUNDER; REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF PSI HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. IN NO EVENT SHALL PSI BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES. THE PARTIES AGREE THAT THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF CONSIDERATION OR OF AN EXCLUSIVE REMEDY.
14. General Provisions.
Assignment. This Agreement may not be assigned by either party without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed. Notwithstanding the foregoing, PSI may assign this Agreement without the consent of Customer, to a successor of all or substantially all of the business, stock and/or assets of PSI, regardless of how the transaction or series of related transactions is structured.
Notices. All notices or other communications required hereunder shall be made in writing to the parties at the address set forth on the Order and shall be deemed to be effectively given if made as follows: (a) if hand delivered, when received, (b) if mailed, three (3) days after being deposited postage prepaid in the United States mail or its equivalent, and sent via certified mail, return receipt requested, or its equivalent; (c) if faxed, on the date of the sending party's receipt of confirmation of transmission, or (d) if mailed for overnight delivery, when delivered by the overnight carrier. Each party may change its notices address by giving written notice in the manner set forth herein.
Press Releases, Marketing, Advertising. PSI may issue press releases, advertisements, marketing and promotional materials concerning the relationship set forth herein and the use of PSI Software or Services and/or the Products without the consent of Customer.
Independent Contractors. PSI and Customer are independent contractors under this Agreement, which shall not be construed to create any employment relationship, partnership, joint venture, franchisor/franchisee or agency relationship, or to authorize any party to enter into any commitment or agreement binding on the other party except as expressly stated herein. The parties have no authority to make statements, warranties, or representations or to create any liabilities on behalf of the other.
Severability; Waiver. If any provision of this Agreement is found by a court or arbitrators to be invalid or unenforceable the remaining provisions shall remain in full force and effect, and this Agreement shall be deemed amended to replace, to the extent legally required, the rights and obligations contained in such invalid or unenforceable provision. Any failure or delay by either party hereto to detect, protest, or remedy any breach of this Agreement, or to exercise (or any single or partial exercise of) any right or remedy shall not constitute a waiver or impairment of any such term or condition, or be deemed a waiver of any further, prior, or future right or remedy hereunder. A waiver may only occur pursuant to the prior written express permission of an authorized officer of the other party.
Entire Agreement. This Agreement constitute the entire agreement and understanding of the parties, whether oral or written, relating to the subject matter hereof; are intended as the parties' final expression and complete and exclusive statement of the terms hereof, superseding all prior or contemporaneous agreements, representations, promises and understandings, whether written or oral; and may be amended or modified only by an instrument in writing signed by both parties.
Headings. The headings used herein are provided for convenience only and shall not be used to construe meaning or intent.
15. Modification and Severability
16. Our Address
Patient Safety, Inc.
985 Schrock Rd.
Columbus, Ohio 43229