BIBAWO Medical Inc and BIBAWO Medical A/S (collectively, “BIBAWO”).
Website Terms of Sale
This Agreement is between BIBAWO Medical Inc and BIBAWO Medical A/S (collectively, “BIBAWO”). and the individual or entity (“Customer”) purchasing a product (including, but not limited to, pharmaceutical products, compounded pharmaceutical products, allergenic extracts, allergy supplies, skin testing supplies, syringes, vials, or any other product) sold by BIBAWO (“Product” or “Products”) on http://188.8.131.52 (the “Site”).
Customer is legally bound by this Agreement and should read it carefully. When prompted, Customer must check the appropriate box to accept the terms of this Agreement before purchasing any Product. If Customer does not indicate his/her/its acceptance of these terms by checking the appropriate box, Customer will not be able to purchase the selected Product or Product
1. Personal Information
All orders for a Product received by BIBAWO through the Site (a “Purchase Order”) are subject to acceptance by BIBAWO and the terms of this Agreement as well as any terms set forth on the Site (including, but not limited to, price). BIBAWO may reject any Purchase Order for any reason, in its sole discretion. After Customer submits a Purchase Order, Customer will receive an email message that such Purchase Order has been received by BIBAWO. Any such Purchase Order is deemed accepted when Customer receives a second email message from BIBAWO confirming acceptance of, or shipping information for, such Purchase Order. If any Purchase Order relates to a Product that is unavailable or is otherwise rejected, Customer will be so notified in an email message.
In submitting a Purchase Order that is accepted by BIBAWO, Customer’s purchase is subject to the terms of this Agreement. Customer must provide BIBAWO with complete and accurate information in submitting each Purchase Order, which must include (a) the specific Product being ordered and (b) the quantity of Product ordered. Any Product sold on the Site is only for purchase, distribution, and use by a licensed medical professional or medical facility. No such Product shall be used for resale or any other purpose.
Customer will be invoiced for the Products in a Purchase Order (an “Invoice”) upon shipment of the Product. Payment is due within 30 days of BIBAWO’s (or BIBAWO’s designee) shipping of the Product. If available to Customer on the Site, Customer may remit payment by using a valid credit card or other payment option offered through the Site that Customer is authorized to use. All information provided by Customer to BIBAWO (or one or more of BIBAWO’s Third-Party Vendors) regarding such credit card must be complete and accurate in all respects.
5. Shipping, Acceptance, and Return of Products
BIBAWO shall use commercially reasonable efforts to deliver the Products in the quantities specified in the relevant Purchase Order or as otherwise agreed in writing by BIBAWO. Any dates posted on the Site for shipping or receiving a Product are only estimates and BIBAWO is not responsible for any failure to ship such Product, or any failure of Customer to receive such Product, on or before any such date posted on the Site.
Products will be shipped to Customer FOB (Incoterms® 2010) loaded at BIBAWO’s facilities (or E BIBAWO’s designee). BIBAWO will endeavor to provide notice of shipment to Customer when the Products are shipped.
If Customer determines in good faith that Products delivered pursuant to this Agreement are damaged, defective, or otherwise do not conform to the Products listed in the applicable Purchase Order, Customer may either (a) reject such Products for a refund of the purchase price therefore, plus any shipping, handling, and transportation charges paid by Customer with respect to such Purchase Order, or (b) replace such Products. Customer has seven days following receipt of the Products to provide written notice to BIBAWO that such Products are rejected by Customer. If Customer fails to provide such notice within seven days, the Products are deemed accepted.
Products consisting of allergenic extracts and pre-filled vials with diluents may not be returned for a refund if such Products are not rejected by Customer pursuant to the immediately preceding paragraph. Non-drug Products (including but not limited to skin testing supplies, syringes, and empty vials) may be returned for a refund within fourteen days of delivery so long as the Product is in its original packaging. Prior to any return, Customer must first receive from BIBAWO a “return merchandise authorization” in writing (including email).
In submitting a Purchase Order through the Site for a Product, Customer must establish an account with BIBAWO that is accessible using a user name and password selected by Customer. Customer’s user name and password must comply with whatever protocol is from time-to-time established by BIBAWO for user names and passwords, and must not be disclosed by Customer to third parties. Customer (a) is responsible for maintaining the confidentiality of Customer’s user name and password, and (b) must immediately notify BIBAWO in writing of any loss, or any unauthorized access, disclosure or use, of Customer’s user name or password. BIBAWO will not have any liability to Customer or any third party arising from Customer’s failure to keep Customer’s user name or password confidential and may at any time, in its sole discretion and without notice to Customer, terminate or temporarily disable Customer’s access to such account. In addition, BIBAWO may rely on any use of Customer’s user name or password, whether by Customer or any third party, as having been authorized by Customer, unless (a) Customer previously notified BIBAWO in writing of any loss, or any unauthorized access, disclosure or use, of Customer’s user name or password, (b) BIBAWO has had a reasonable opportunity of not less than five days to act on such notice, and (c) BIBAWO’s acting on such notice would have clearly avoided any third-party use of such account that was not authorized by Customer.
In submitting a Purchase Order through the Site for a Product, Customer represents and warrants that each such Purchase Order is placed by a duly licensed medical professional or other individual authorized to place such orders.
All right, title and interest in any content (including, but not limited to, all logos, artwork, graphics, icons, insignia, names, marks, and all intellectual property rights therein) made available through the Site or associated with a Product (collectively “Content”) belong to, or are licensed by, BIBAWO, unless stated otherwise in writing by BIBAWO. No licenses or rights to any Content are granted to Customer by use of the Site, purchasing a Product, entering into this Agreement, or otherwise by implication.
8. Third-Party Vendors
BIBAWO may rely on Third-Party Vendors, and BIBAWO will have no responsibility or liability with respect to Third-Party Vendors or their products, services, or content. Third-Party Vendors may impose additional terms upon Customer’s use of such products, services, and content, and Customer will be bound by such terms just as though they are set forth in this Agreement in their entirety.
9. Third-Party Sites
The Site may contain links to other websites that are not maintained by BIBAWO. BIBAWO is not responsible for any content contained on such other websites or otherwise with respect to such other websites. No link from the Site to another website, or from another website to the Site, is an endorsement, sponsorship, or recommendation by BIBAWO of such other website and the link is provided only for Customer’s convenience. BIBAWO will have no responsibility or liability to Customer or any third party arising from any link between the Site and another website.
All sales and use taxes, plus any other federal, state, county or local duty, surcharge, tax, tariff or other government-imposed fee (except for any tax on the income of BIBAWO) assessed or payable upon an order for a Product or otherwise relating to this Agreement shall be payable by Customer, even if such government-imposed fee is not collected by BIBAWO at the time an order for a Product is submitted to BIBAWO.
Customer shall indemnify, defend and hold harmless BIBAWO from all costs, damages, expenses, fines, liabilities, losses, penalties and other payments (including, but not limited to, fees and disbursements of counsel to BIBAWO) resulting from, or relating to, (a) Customer’s failure to perform any obligation or assume any responsibility pursuant to this Agreement, (b) any warranty or representation made by Customer in this Agreement being untrue or misleading in any respect, (c) any unauthorized use of a Product by Customer (or Customer’s designee), (d) any unauthorized use by a third-party of Customer’s account, user name or password (except as set forth in Section 6), (e) any products, services or content of Third-Party Vendors, or (f) Customer’s use of the Site or a Product or Customer’s purchase of a Product.
BIBAWO warrants only to Customer that all Products shipped to Customer will have been prepared in accordance with this Agreement and all applicable laws in effect at the time of shipping of the Product, and all Products shipped to Customer shall, when shipped, not be misbranded or adulterated.
EXCEPT AS EXPRESSLY STATED IN THE IMMEDIATELY PRECEDING PARAGRAPH, A PRODUCT IS MADE AVAILABLE TO CUSTOMER “AS IS” AND WITHOUT ANY WARRANTY OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS OR IMPLIED (INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE).
13. Limitation of Liability
IN NO EVENT SHALL BIBAWO BE LIABLE TO CUSTOMER OR ANY THIRD PARTY WITH RESPECT TO A PRODUCT, THE SITE, THIS AGREEMENT OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES. IN NO EVENT WILL ANY LIABILITY OF BIBAWO WITH RESPECT TO A PRODUCT, THE SITE, THIS AGREEMENT OR OTHERWISE EXCEED THE LESSER OF (A) ALL DIRECT DAMAGES ACTUALLY INCURRED BY CUSTOMER OR (B) THE TOTAL AMOUNT PAID BY CUSTOMER TO BIBAWO FOR A PRODUCT (NOT INCLUDING ANY CHARGES FOR SHIPPING). THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF ANY THEORY OF LIABILITY (INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT), EVEN IF THE POSSIBILITY OF ANY DAMAGES SHOULD HAVE BEEN FORESEEN BY BIBAWO, AND EVEN IF ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If, however, any such provision is prohibited by or invalid under such law, it will be deemed modified to conform to the minimum requirements of such law, or if for any reason it is not deemed so modified, it will be prohibited or invalid only to the extent of such prohibition or invalidity without the remainder of such provision, or any other provision of this Agreement, being prohibited or invalid.
This Agreement will not be amended by any conduct pursued by the parties or any third party, but may only be amended in a writing signed by BIBAWO and Customer or as otherwise set forth herein. Any terms (including, but not limited to, price) relating to an order for a Product through the Site after the effective date of this Agreement may be unilaterally amended by BIBAWO, in its sole discretion, at any time and such amendment will apply to each Purchase Order submitted by Customer through the Site after the date of such amendment.
Customer must send all written notices to BIBAWO relating to a Product or this Agreement by either regular mail as follows: Attn: Legal Department, BIBAWO Medical A/S, Klintehoej Vaenge 6, DK-3460 Birkeroed, Denmark , or by e-mail to firstname.lastname@example.org. Any such notice will be effective upon actual receipt by BIBAWO. BIBAWO may send notices to Customer through e-mail, regular mail, or a general posting on the Site. Any such notice will be effective (a) immediately upon BIBAWO’s sending such notice to the address it has in its records for Customer in the case of e-mail, (b) five days after BIBAWO’s sending such notice to the address it has in its records for Customer in the case of regular mail, and (c) immediately upon Customer’s entering the Site after such notice is posted on the Site.
No failure of BIBAWO to exercise, and no delay by BIBAWO in exercising, any right or remedy under this Agreement shall be a waiver of such right or remedy. No waiver of any such right or remedy shall be effective unless made in a writing signed by BIBAWO, and specifically referring to each such right or remedy being waived.
18. Governing Law
This Agreement will be governed by and construed in accordance with the laws of the State of New York and controlling United States federal law, notwithstanding any conflict of laws provisions or doctrines of such state or any other jurisdiction to the contrary. Customer agrees to submit to the jurisdiction of the courts situated in Onondaga County, New York with respect to any claim, cause of action or dispute related to or involving the Site, Customer’s access or use thereof, this Agreement, and/or Customer’s purchase or use of a Product.
19. Third-Party Beneficiaries
There are no third-party beneficiaries of this Agreement, and no provision of this Agreement can be enforced or relied upon by any third party.
Customer represents and warrants to BIBAWO that Customer (1) has carefully read this Agreement, (2) is entering into this Agreement on Customer’s own behalf, and (3) has sufficient capacity and authorization to enter into this Agreement.
After reading this Agreement carefully, Customer must click “I Agree” below to accept the terms of this Agreement. If Customer does not accept the terms of this Agreement, Customer must click “I Decline” below or exit the Site, in which case Customer will not be able to order a Product.