Last updated and effective: June 2, 2020
The terms, conditions, policies and notices contained in this document (these “Terms”) apply to the website operated by ABB/Con-Cise Optical Group LLC and/or its affiliates (collectively, “ABB”), including without limitation all services, products, content, features and functionality available through it (the “Site”). Any reference to “we”, “us”, or “our” in these Terms shall refer to ABB. Please read these Terms carefully before using the Site.
Defined terms used herein that are not otherwise defined are defined as set forth in the “Defined Terms” Section below.
ACCEPTANCE AND ACKNOWLEDGEMENT
YOU WILL BE ASKED TO REVIEW AND EITHER ACCEPT OR NOT ACCEPT THESE TERMS. IF YOU AGREE TO BE BOUND BY THESE TERMS, CLICK THE “ACCEPT” BUTTON. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THESE TERMS, ABB IS UNWILLING TO GRANT YOU ANY RIGHTS TO USE THE SITE, AND YOU MUST INDICATE YOUR REJECTION OF THESE TERMS BY CLICKING THE “DECLINE” BUTTON. BY ACCESSING OR USING THE SITE, YOU ARE ACCEPTING THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). YOU ACKNOWLEDGE AND AGREE THAT THESE TERMS ARE ENFORCEABLE TO THE SAME EXTENT AS ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU.
Except as otherwise provided by a third party, all content on the Site is © 2020 ABB and/or its licensors. The Site contains copyrighted material, trademarks, service marks, trade dress, and other proprietary content, including but not limited to, text, software, applications, sound, photographs, buttons, images, logos, video, and graphics (the “Content”), and the entire selection, coordination, arrangement and “look and feel” of the Site and the Content are copyrighted as a collective work under copyright laws (collectively, “Intellectual Property Rights”).
Neither these Terms nor your use of the Site transfers any right, title or interest in the Site, Content, or Intellectual Property Rights to you. We and our third-party licensors retain all of our and their respective right, title, and interest to the Site, Content, and Intellectual Property Rights. Any rights not expressly granted are reserved.
Except as expressly provided in these Terms, you may not use, modify, republish, frame, print, display, perform, reproduce, license, transfer, sell, assign, post, transmit, distribute, reverse engineer, create derivative works from, or otherwise exploit any Content or information from the Site, in whole or in part, without our express written permission.
The Site is available worldwide to anyone with Internet access; provided that certain functionality may not be available to you depending on where you are located. However, the Site may not be continuously available due to maintenance or repairs or due to computer problems or crashes, disruption in Internet service, or other unforeseen circumstances. Further, a reference to a product or service on the Site does not imply that the product or service is or will be available in your location. The Content of the Site is intended for use and display only where its use and display are permissible in accordance with applicable laws and regulations. The Site is provided from the United States of America, and all servers that make it available reside in the United States. The laws of other countries may differ regarding the access and use of the Site. We do not make any representations regarding the legality of the Site in any other country, and it is your sole responsibility to ensure that your use complies with all applicable laws.
Certain materials on the Site may be furnished by third parties. Certain products, services, or company designations for companies other than us may be mentioned in the Site for identification purposes only. Third-party trademarks, trade names, logos, product or services names contained on the Site are the trademarks, registered or unregistered, of their respective owners.
Nothing contained in these Terms shall be construed as conferring any other license or right, express or implied, under any of our intellectual property rights or under any third party’s intellectual property rights. Any rights not expressly granted herein are reserved.
Account Creation. In order to use certain features of the Site, you must register for an ABB Account and provide certain information about yourself as prompted by the account registration form. You acknowledge that you must be at least eighteen (18) years old to create and maintain an ABB Account on the Site. You may be asked to create a username, a password, and to provide important contact information. If you register for an ABB Account, you agree to: (i) submit truthful and accurate information; and (ii) you will update your information to maintain the accuracy of such information on an ongoing basis. You may delete your ABB Account at any time, for any reason, by emailing us at eSolutions@abboconcise.com. We may, in our sole discretion, may suspend or terminate your ABB Account for any reason, without prior notice.
Account Security. Please keep your ABB Account and Log-In Information secret and secure. You will need your Log-In Information to access the Site and place Orders. Your Log-In Information has the same effect as your written signature and can be used to access, use and modify your ABB Account and profile information and to place Orders for Products, payment for which you are solely responsible. Anyone with knowledge of your Log-In Information can gain access to your ABB Account, make changes to your ABB Account and may place Orders for Products, for which you will be solely responsible to pay. You should only provide Log-In Information or access to your ABB Account to representatives you trust and who are authorized to access, make changes and place Orders on your behalf. If any representative or personnel who has knowledge or access to your Log-In Information ends their relationship with you or changes or no longer should have access to your ABB Account, we strongly recommend that you immediately change the Log-In Information. You are responsible for protecting your Log-In Information against improper and unauthorized use, which includes access from prior representatives or personnel. No one from ABB will be authorized to provide your Password to you, but administrators of the Site may send a password reset link via email to the email on record for you to reset your password. You are also solely responsible for restricting access to any information-processing device you use to access the Site. You are solely responsible for any and all transactions, entries or instructions initiated by or through the use of your Log-In Information, and any and all claims, losses, damages, expenses and costs incurred by the improper or unauthorized use of your Log-In Information and/or the use of your Log-In Information by others. You must notify ABB immediately if you believe that your Log-In Information has been lost or stolen, that someone has improperly accessed your ABB Account without your permission, or that the security of your Log-In Information has been compromised in any way. ABB reserves the right to reset your Password.
You are responsible for maintaining a current Notice of Privacy Practices consistent with the requirements of applicable law including the HIPAA privacy rules (45 CFR Parts 160 and 164) (“NPP”) that does not restrict the ability of ABB to perform its services on your behalf and for contacting ABB to make any necessary modifications or updates to the NPP. You may request publication or updates to an existing NPP by contacting our helpline at 1-800-852-8089 or by e-mailing eSolutions@abboconcise.com.
THESE TERMS CONTAIN VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS AND EXCLUSIONS THAT MIGHT APPLY TO PURCHASES YOU MAKE FROM US THROUGH THE SITE. PLEASE READ THEM CAREFULLY.
YOU MAY NOT ORDER OR OBTAIN PRODUCTS USING THIS SERVICE IF YOU (A) DO NOT AGREE TO ALL OF THESE TERMS, (B) ARE NOT (I) AT LEAST 18 YEARS OF AGE OR (II) OF LEGAL AGE TO FORM A BINDING CONTRACT WITH ABB, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS SERVICE OR ANY OF ITS CONTENT, GOODS OR SERVICES BY APPLICABLE LAW.
Notwithstanding anything herein to the contrary, if a written contract signed by Account Holder and ABB exists covering the sale and purchase of Products (an “Other Agreement”), the terms and conditions of such Other Agreement shall prevail to the extent those terms are inconsistent with these Terms.
Order Acceptance and Cancellation. Your Order is an offer to buy the designated Product(s) under these Terms. Each Order to be valid must be accepted by us. Acceptance of your Order and the formation of the contract of sale between ABB and you will not take place until the Order has been submitted to ABB at the end of the check-out process. However, we are not obligated to accept an Order or sell Products under an Order to you.
You can cancel your Order at any time before it has been released for fulfillment by our distribution centers by calling our helpline at 1-800-852-8089. Any cancellation requests received after fulfillment are noncancelable.
Prices and Payment Terms. Pricing for Products is displayed via the Site. Note that prices posted on our Website and offered via the Site are subject to change without notice. Regardless, the price charged for a Product will be the price in effect at the time the Order is submitted through the checkout process under the Site. Posted prices do not include taxes, shipping expenses or customization charges, where applicable. Any such additional charges will be line itemed on your Order total. Sometimes our offers contain mistakes, such as, the pricing offered or typographical errors, and although we try to catch these errors, we are not responsible for such errors, and we reserve the right to cancel any Orders arising from such errors.
Determining Product pricing to your patients through the Site is your sole responsibility, and you must direct ABB on the appropriate prices to charge your patients. ABB shall not be responsible for determining the appropriate price to sell products to your patients or other customers.
Acceptance of an Order by us occurs after we receive the payment. Payment must be submitted via the payment methods offered under the checkout process of the Site. When you submit payment information, we rely on the fact your payment information is correct, and you hereby represent and warrant that (i) all of your information is true, correct and complete, (ii) you are duly authorized to use such method of payment, (iii) charges incurred by you will be honored by your bank and/or credit card company, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any.
Open Accounts. From time to time, we will permit Users to have an ‘open account’. If we accept your Order on an ‘open account’, we will notify you of such. In that case, we will submit a statement to you for payment of any Products ordered via an Order on or about the last on Friday of the month in which the Order was placed (or if such Friday is a U.S. holiday, then the following business day). Full payment under the statement must be received by us by the 10th day of the following month. If you have met or exceeded your credit limit, your Order will be placed on hold until you make all payments due in full. You may seek to increase your credit limit by calling ABB’s helpline at 1-800-852-8089. An increase to your credit limit is at ABB’s absolute and sole discretion.
For late payments, you shall pay interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. You shall also reimburse ABB for any costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms, the Other Agreements or at law (which ABB does not waive by the exercise of any rights hereunder), ABB shall be entitled to suspend or terminate the delivery of any Products if you fail to pay any amounts when due hereunder and such failure continues for five (5) days following written notice thereof.
Product Availability. The inclusion of any Products on the Site does not imply or warrant that these Products will be available at any particular time. Products included on the Site may be unavailable, may have different attributes than those listed or may actually carry a different price than that stated on the Site. In the event a Product is listed at an incorrect price due to typographical error or error in pricing or other information, we will have the right to cancel orders of any such Product, whether or not the order has been confirmed and/or your credit card or other payment method has been charged. If your credit card has already been charged for the purchase and your order is cancelled, we will refund any such charges within a commercially reasonable period after cancellation. The actual color of Products you see will depend in part on your computer system, and we cannot guarantee any color or texture, or detail of actual Products will be accurate. In no event will anything contained in these Terms or any area of the Site be construed as a representation or guarantee with respect to any content, services or products. We do not guarantee the accuracy, completeness or usefulness of any descriptions or other content. Further, we do not endorse, and are not responsible for, the accuracy and reliability of any opinion or statement made on the Site by any third party, including but not limited to, on the Forums. In addition, we may make changes to information about price, availability or other Product attributes without notice. We reserve the right, without prior notice, to limit the order quantity on any Product, to refuse service to any customer or to cancel any order, including after it is submitted.
Promotions and Coupons. Without limiting the foregoing, we reserve the right to refuse or cancel any order placed using any coupon, discount or promotion (“Coupon”) that is erroneous in any way and/or was not distributed to you, as evidenced by our records. The coupon or promotion may be subject to additional or different terms (“Coupon Terms”), and the Coupon Terms control over these Terms. If there are no Coupon Terms, these Terms apply, and the Coupon: (a) is valid only at the website identified in the Coupon and at no other store; (b) applies to in-stock merchandise only and not to gift cards or services; (c) is not valid for cash or cash equivalents; (d) is limited to one per person; (e) must be entered at checkout and/or in your account to be redeemed; (f) may not be combined with any other coupons or offers; (g) may only be used once; (h) expires on the later of one year from the date of issue or the date required by applicable law; and (i) cannot be reproduced, modified, sold or traded or used to pay any tax, such as sales tax, shipping or any value added service. We reserve the right to limit, change or cancel any Coupon or associated order, without prior notice, even after you have attempted to redeem the Coupon or placed your associated order.
Secure Ordering. Prices shown on a Product’s information page do not include any credit card or other processing fee, sales tax, or shipping fees, which will be added to your total amount owed at the time of payment processing. ABB uses Secure Socket Layer (SSL) technology for secure Internet transactions. All of your information is encrypted. To protect your information once it is received by ABB, firewalls are designed to keep information safe and inaccessible to other Internet users. To confirm that your connection is secure, look for a locked padlock icon or solid key icon at the bottom of your browser window. The letters “https” (rather than “http”) located in the URL address window at the top of your browser will indicate that you are using a secure browser. The Site connects you to a third-party site to enable you to pay for your order. Your use of such third-party site is subject to your assent to these Terms herein and any terms or policies provided by the third-party processing feature through the Site. ABB is not liable for any errors or incomplete payment processing resulting from your use of the third-party payment processing website.
SHIPMENTS; DELIVERY; TITLE AND RISK OF LOSS
Products will be shipped to the shipping destination indicated in your Order (which may be you or your customer), provided the shipping destination is in the Territory, FOB from our Shipping Location. Please check the individual Product page for specific delivery options. You will pay all shipping and handling charges specified during the ordering process.
Title and risk of loss pass to you upon our transfer of the Products under the Order to the carrier for delivery. Shipping and delivery dates are estimates only and cannot be guaranteed. In the event that we are unable, in accordance with standard common courier policies or due to supply shortage for any reason, to effect delivery at the address provided by you within thirty (30) days of shipment, we may elect to cancel your order. With respect to the shipment of products and services sold through the Site, risk of loss and title for items purchased from the Site pass to you upon delivery of the items to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments. It also is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased from the Site.
Inspection and Rejection of Nonconforming Products. Please inspect the Products within two (2) business days after you receive them (“Inspection Period”). You will be deemed to have accepted the Products unless you notify ABB in writing of any Nonconforming Products during the Inspection Period and provide a description of the nonconformity as required or requested by ABB.
If you notify ABB of any Nonconforming Products in time, ABB shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the price for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by you in connection therewith. You must ship, at your expense and risk of loss, the Nonconforming Products to the Shipping Location designated by ABB. If ABB exercises its option to replace Nonconforming Products, ABB shall ship to you at your expense and risk of loss the replaced Products to the original delivery point after receiving your shipment of Nonconforming Products.
The above credit and refund are your exclusive remedies for the delivery of Nonconforming Products. Except for Nonconforming Products or as described elsewhere in these Terms or the other agreements, all sales of Products to you are made on a one-way basis and you have no right to return Products purchased under these Terms to ABB.
Discontinue Accepting Orders and Termination. ABB may discontinue accepting your Orders via the Site at any time if (a) you fail to make any payment when due hereunder and such failure continues for five (5) days after receiving notice of same; or (b) you breach any of your representations, warranties, covenants or agreements in these Terms or the Other Agreements in any material respect. If ABB discontinues accepting your Orders or if your access to the Site is terminated for any reason, you must pay to ABB all payments due to ABB for any services, Products or materials provided prior to or after such discontinuation or termination.
Your Acts or Omissions. If you or your representative(s) or personnel in any way prevent, delay or impact our ability to perform, we won’t be liable for any resulting delay, interruption or impact relating to the Site, including for any costs, charges or losses sustained or incurred.
Returns and Refunds. ABB’s return policy mirrors the Manufacturers’ return policies. ABB accepts the return of any Product and will provide you with a credit for the purchase price paid for such Product (not including freight) if the Manufacturer of such Product would accept the return of such Product for full credit. You are responsible for all shipping and handling charges on returned items and you bear the risk 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. All returns are subject up to ABB’s then applicable restocking fee. Refunds are processed within approximately ten (10) business days of our receipt of the returned Product. Your refund will be credited back to the same payment method used to make the original purchase on the Site. WE OFFER NO REFUNDS ON ANY PRODUCTS DESIGNATED ON THE SITE AS NON-RETURNABLE.
Conditions. You acknowledge and agree that ABB cannot sell or deliver any Product to you if you are not a qualified customer of the Manufacturer of such Product, or if ABB is no longer a qualified distributor for that Product. You will cooperate, to the extent applicable, with ABB’s compliance with each Manufacturer’s policies and procedures in effect from time to time. You authorize ABB to report your purchases of Products from ABB to the applicable Manufacturers to ensure the Manufacturers properly allocate sales credit to you and your sales representatives, if applicable.
By using the Site, you agree that you shall not:
delete, modify, hack or attempt to change or alter any of the Content on the Site;
attempt to access accounts, computer systems, or networks connected to any of our servers or to the Site, through hacking, password mining, or any other means, or obtain or attempt to obtain any materials or information through any means not intentionally or readily made available through the Site;
use any device, software, or routine intended to damage, overburden, disable or otherwise interfere with the proper functioning of the Site or servers or networks connected to the Site, or take any other action that interferes with administration and operation of the Site or other parties' use of the Site;
misrepresent your identity, provide false or misleading information, impersonate another, misrepresent your affiliation with a person or entity, or attempt to use another user’s or an administrator’s account;
use any deep-link, scraping, robot, spider, or other automatic or manual device, program, algorithm or process for the purpose of accessing, copying, monitoring, harvesting or compiling information on the Site for purposes other than for a generally available search engine;
use any of our or our licensors’ or partners’ names, service marks, logos, or trademarks without our prior written consent, including without limitation as metatags, search engine keywords, or hidden text;
use any material or information, including images or photographs, which are made available through the Site in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any party;
transmit or upload files that contain viruses, Trojan horses, worms, time bombs, corrupted files, or any other similar devices, code, software or programs that may damage the operation of another’s device or property;
manipulate or otherwise display the Site or portions thereof by using framing or similar navigational technology;
probe, scan, or test the vulnerability of the Site or any network connected thereto;
use the Site for or in connection with any illegal, unlawful or immoral conduct or purpose, including without limitation to publish, transmit or otherwise disseminate pornographic, sexually explicit or violent content; or
defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights of any third party.
Except as indicated to the contrary elsewhere on the Site, you may view, copy, retransmit, and print the Content available on the Site subject to the following conditions:
you may only use the Content for personal and informational purposes;
you may not provide, sell, license, or lease the Content for any fee or other consideration;
you must ensure all copyright, trademark, and other proprietary rights notices included in the Content as presented on the Site appear on all copies;
you may not modify or alter the Content in any way; and
you may not use any graphics separately from accompanying text.
You may also link or hyperlink to the Site from any Acceptable Site (as defined below), but only if:
you do not frame the Site or any portion of the Site;
the hyperlink to the Site is not used in a way that suggests that we endorse you or your website;
the link to the Site is not used or presented in any way that disparages us or tarnishes, blurs or dilutes the quality of our names or trademarks or any associated goodwill; and
the link to the Site is not displayed on any web page that displays objectionable content or links.
An “Acceptable Site” means a website that displays no objectionable content, including, but not limited to, any content, information in any medium or format, such as text, data, graphics, audio or video, that: (A) is libelous or defamatory, pornographic, sexually explicit, unlawful or plagiarized; (B) a reasonable person would consider harassing, abusive, threatening, harmful, profane, obscene, racially, ethnically or otherwise objectionable or offensive in any way; (C) constitutes a breach of any person’s privacy or publicity rights, a misrepresentation of facts or hate speech; or (D) violates or encourages others to violate any applicable law.
OTHER SITES; THIRD-PARTY CONTENT
As a convenience to you, the Site may provide links to websites and access to content, products, and services of third parties, including our affiliates, strategic partners, and other entities with which our connection consists of only a hyperlink (“Linked Site”). All Linked Sites are provided only because they may be of interest to Site users. Information and views contained in Linked Sites are not adopted, sponsored, or endorsed by us.
TERMINATION/MODIFICATIONS OF SITE
We reserve the right to modify or terminate your access to the Site or portions of the Site, at any time, temporarily or permanently, with or without notice to you, for any reason, and are not obligated to support or update the Site. These Terms shall survive any termination. We also may impose limits on certain features and services, restrict your access to parts or the entire Site, or charge fees for access to portions of the Site without notice or liability. You acknowledge and agree that we will not be liable to you or any third party in the event that we exercise our right to modify or terminate access to the Site or portions of the Site.
MODIFICATIONS TO TERMS
We may change, modify, add and/or delete all or portions of these Terms from time to time by posting updated Terms on the Site, which shall apply to your use of the Site after such modifications have been posted. Please review these Terms periodically for any updates or changes. Your continued use of the Site following the posting of any updates or changes to these Terms constitutes your acceptance of such updates and changes. If you object to any provision of these Terms or any subsequent modifications to these Terms, your only recourse is to terminate your use of the Site immediately.
In accordance with the US Federal Digital Millennium Copyright Act (“DMCA”), we have designated an agent to receive notifications of alleged copyright infringement associated with the Site. We will, upon receiving proper notice as set forth below, use commercially reasonable efforts to investigate notices of copyright infringement and take appropriate action. If you believe that your copyrighted work or the copyrighted work of another party is being infringed, please notify us at PrivacyOfficer@abboptical.com or through the address at the end of this page. When notifying us of the alleged copyright infringement please provide us with the following information:
a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright interest that is claimed to have been infringed;
identification of the copyrighted work alleged to have been infringed;
a description of the material that is claimed to be infringing and information sufficient to locate the material on the Site;
information sufficient to contact the complaining party, such as a physical address, telephone number, and, if available, an electronic mail address;
a statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on the copyright owner’s behalf.
If we in good faith believe material to infringe a copyright or otherwise violate any intellectual property rights, we will remove or disable access to such material.
Our goal is to provide complete, accurate, and up-to-date information on the Site. Unfortunately, it is not possible to ensure that any website is completely free of human or technological errors. The Site may contain typographical mistakes, inaccuracies, or omissions, and some information may not be complete or current. We therefore reserve the right to correct any errors, inaccuracies or omissions and to change or update information at any time without prior notice.
The only warranties which apply to any Product are those provided directly by the Manufacturer of the Product to you. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE SITE AND ALL CONTENT, MATERIALS, INFORMATION, TOOLS, APPLICATIONS, PRODUCTS, AND SERVICES PROVIDED ON THE SITE, ARE PROVIDED ON AN “AS IS,” “WHERE IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. WE AND OUR SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY, AND ACCURACY, AS WELL AS ALL WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. WE SPECIFICALLY DISCLAIM ANY AND ALL LIABILITY OR LOSS ARISING OUT OF ANY ACTION TAKEN IN RELIANCE ON THE SITE AND/OR ANY CONTENT, TOOLS, APPLICATIONS, PRODUCTS, AND SERVICES PROVIDED ON THE SITE WE MAKE NO WARRANTY, AND EXPRESSLY DISCLAIMS ANY OBLIGATION, THAT: (A) THE SITE WILL MEET YOUR REQUIREMENTS OR WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (B) THE CONTENT WILL BE UP-TO-DATE, COMPLETE, COMPREHENSIVE, OR ACCURATE; (C) ANY PARTICULAR RESULTS MAY BE OBTAINED FROM THE USE OF THE SITE; (D) THE QUALITY OF ANY CONTENT, PRODUCTS, SERVICES, TOOLS, APPLICATIONS, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE SITE WILL MEET YOUR EXPECTATIONS; OR (E) DEFECTS, IF ANY, WILL BE CORRECTED.
LIMITATION OF LIABILITY
IN NO EVENT SHALL WE OR OUR SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, INCREASED, OR CONSEQUENTIAL DAMAGES INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), ARISING FROM YOUR ACCESS TO, OR INABILITY TO ACCESS OR USE THE SITE OR ANY CONTENT, INTELLECTUAL PROPERTY, APPLICATIONS, TOOLS, PRODUCTS, INFORMATION, OR SERVICES PROVIDED IN CONNECTION WITH THE SITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR LIABILITY FOR ANY TYPE OF DAMAGES SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00 USD). SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OR EXCLUSIONS OF LIABILITY IN SOME CIRCUMSTANCES. CONSEQUENTLY, SOME OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.
LIMITATION ON ACTIONS
You agree that any dispute arising out of these Terms or your use of the Site must be filed within one (1) year after the claim or cause of action arose or it shall forever be barred, notwithstanding any statute of limitations or other law to the contrary. Within this period, any failure by us to enforce or exercise any provision of these Terms or related right shall not constitute a waiver of that right or provision.
You agree that any dispute arising out of or relating in any way to your use of the Site requires that the claim be resolved exclusively by confidential binding arbitration except that, to the extent you have in any manner violated or threatened to violate Intellectual Property Rights, we may seek injunctive or other appropriate relief. The arbitration shall be conducted in accordance with the rules of the American Arbitration Association (“AAA”), as then in effect. No claims of any other parties may be joined or otherwise combined in the arbitration proceeding. Unless otherwise expressly required by applicable law, each party shall bear its own attorneys’ fees without regard to which party is deemed the prevailing party in the arbitration proceeding. Except for punitive and consequential damages (which may not be awarded), and subject to these Terms, the arbitrators shall be authorized to award either party any provisional or equitable remedy permitted by applicable law. The parties shall equally share all AAA charges and fees associated with the arbitration.
BECAUSE THE USE OF THE SITE REQUIRES THE ARBITRATION OF ANY CLAIMS OR DISPUTES EXISTING BETWEEN THE PARTIES, NEITHER PARTY WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY OR TO PARTICIPATE IN A CLASS ACTION OR ANY OTHER COLLECTIVE OR REPRESENTATIVE PROCEEDING. THE ARBITRATORS’ DECISION WILL BE FINAL AND BINDING. OTHER RIGHTS THAT EITHER PARTY WOULD HAVE IF SUCH PARTY WENT TO COURT, INCLUDING WITHOUT LIMITATION THE RIGHT TO CONDUCT DISCOVERY OR TO APPEAL, MAY BE LIMITED OR UNAVAILABLE IN ARBITRATION.
The award of the arbitrators may be enforced in any court having jurisdiction thereof. Each party consents (a) to the non-exclusive jurisdiction of the courts of the State of Delaware, or to any federal court located within the State of Delaware for any action (i) to compel arbitration, (ii) to enforce any award of the arbitrators, or (iii) at any time prior to the qualification and appointment of the arbitrators, for temporary, interim, or provisional equitable remedies, and (b) to service of process in any action by registered mail or any other means provided by law. Should this Section be deemed invalid or otherwise unenforceable for any reason, it shall be severed, and the parties agree that exclusive jurisdiction and venue for any claims will be in the state or federal courts in Delaware.
Compliance. You hereby represent, warrant and covenant that neither you nor any of your affiliates or personnel authorized to access or use your ABB Account or who have knowledge of your Log-In Information has been debarred, excluded, or otherwise determined to be ineligible to participate in any federal healthcare programs or in federal procurement programs (collectively, “Ineligible”), or criminally convicted of an offense that could result in being Ineligible. If you become Ineligible, you shall notify ABB immediately and ABB may discontinue accepting your Orders immediately upon notice to you. If ABB receives notice of criminal charges or exclusions pending or proposed against you or any of your affiliates or personnel authorized to access or use your ABB Account or who have knowledge of your Log-In Information, ABB may discontinue accepting your Orders or take other appropriate steps to protect patients and state and federal program funds.
Recalls. ABB shall promptly notify you if ABB receives any recall or safety notice for any Products purchased (each, a “Recall”). You must cooperate with and assist ABB and the Manufacturer of the recalled Products with any Recall of such Products. Your right to reimbursement for any Recall is limited to amounts that the Manufacturer pays. ABB is not obligated to make any payment or provide any remedies or redress in connection with a Recall.
Products Not for Export. You agree to comply with all applicable laws and regulations of the various states and of the United States in connection with your sale of the Products to consumers. You may not sell any Products for use anywhere other than in the Territory. You may sell Products only to end users of the Products and no to persons that intend to resell such Products. You may not export any Products outside the Territory. Your failure to comply with any of these restrictions will be a violation of your representations and warranties and a breach of the Agreement between you and ABB and ABB may seek any and all remedies, including, without limitation, refusing Orders from you and/or terminating its relationship with you.
Compliance with Law. You shall comply with all applicable laws, regulations and ordinances. You shall maintain in effect all the licenses, permissions, authorizations, consents and permits that you need to carry out your obligations under these Terms and the Other Agreements and to lawfully sell the Products to consumers. In no event shall ABB have any liability to you or any third party resulting from your failure to maintain the foregoing.
No Third-Party Beneficiaries. These Terms and the Other Agreements are for the sole benefit of ABB and you and our respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms or any of the Other Agreements.
Relationship of the Parties. The relationship between ABB and you is that of independent contractors. Nothing contained in these Terms or the Other Agreements shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between us, and neither ABB nor you shall have authority to contract for or bind the other in any manner whatsoever.
Force Majeure. ABB is not liable or responsible to any person and we will not be in breach of these Terms or any of the Other Agreements, for any failure or delay in our performance when and to the extent such failure or delay is arises 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.
Anti-Kickback. The federal anti-kickback statute, 42 U.S.C. § 1320a-7b(b), prohibits certain activities in connection with referring or arranging for business paid for by a federal healthcare program. Nothing in these Terms or the Other Agreements shall be construed as an obligation or inducement for you to recommend that health care providers or patients purchase any particular Products. Both ABB and you acknowledge that these Terms and the Other Agreements are and have been negotiated at arms-length and that the compensation paid under these Terms and the Other Agreements represents, to the best of our respective knowledge, the fair market value for the services each provides. To the extent applicable, you shall comply with the Discount Safe Harbor to the Anti-Kickback Statute, 42 C.F.R. §1001.952(h), which requires, without limitation, reporting of discounts to the government upon request and when seeking reimbursement under any governmental health care program.
Survival. Those provisions of these Terms and the Other Agreements, which by their nature should apply beyond the fulfillment of any Order, will remain in force after the Order has been fulfilled.
In addition to terms already defined, the following terms have the following meanings when used in these Terms:
“ABB Account” means the User‘s account that sets forth (a) all debits issued for Products ordered by or for the account of the User and all other items for which the User is required to pay, and (b) all credits for Product returned in accordance with these Terms, rebates, discounts and other credits of which the User is entitled.
“Account Holder”, “you”, or “your” means the person or entity primarily responsible for the payment of the ABB Account that will be debited for an Order placed through the Site, which shall be determined by the Log-In Information used to place such Order.
“Log-In Information” means the unique username and passwords used by the User to access and use the Site and place Orders for Products.
“Micro-Site” means a sub-site of “Yourlens.com” for each use by its customers.
“Manufacturer” means the manufacturer of a Product(s) and, if applicable, the seller of that Product(s) to ABB if the seller of that Product is not the manufacturer of that Product.
“Nonconforming Products” means only the following: (i) the Product shipped is different from the Product identified in the User’s Order; or (ii) the Product’s label or packaging incorrectly identifies its contents.
“Order” means an order for Products placed via the Site in accordance with the process below.
“Products” means the various contact lens products offered by ABB from time to time via the Site. ABB may change Products offered at any time.
“Shipping Location” means one of ABB’s distributions centers or the distribution center of any Manufacturer, from which Products will be shipped to the User or to the User’s Order destination.
“Territory” means the continental United States and the States of Hawaii and Alaska.
If you have any questions about these Terms, our practices, or your dealings with the Site, please contact us at eSolutions@abboconcise.com. You may also contact us to update your personal information by notifying us when you change your name or email address.