Terms and Conditions

 

  1. BINDING CONTRACT. The following sets forth all of the terms and conditions of a binding contract between Ebb and Customer for the sale of the goods and/or services described in the Purchase Order entered into by Ebb and Customer. Any additional or different terms proposed by Customer (whether in any purchase order, acknowledgement or other document submitted at any time by Customer) must be expressly agreed to in writing by an authorized representative of Ebb.

 

  1. ENTIRE AGREEMENT; MODIFICATION. The Purchase Order incorporating these Terms and Conditions and, if applicable, any other written agreement entered into by Ebb and Customer, constitute the entire and only agreement between Ebb and Customer concerning the subject matter addressed in the Purchase Order, which incorporates these Terms and Conditions. No modification of these Terms and Conditions shall be binding on Ebb unless agreed to in writing by an authorized representative of Ebb. If applicable, the terms of any other written agreement entered into by Ebb and Customer control over the terms herein.

 

  1. TAXES, DUTIES AND FEES. Prices do not include applicable sales, excise, use, VAT or other taxes, duties or fees now in effect or levied in the future which Ebb may be required to pay or collect in connection with the sale of goods or services to Customer, whether or not expressly set forth in the Purchase Order or in any quotation. All such taxes, duties and fees shall be for the account of Customer, who shall promptly pay the same to Ebb upon request.

 

  1. PAYMENT; LIQUIDATED DAMAGES. Unless otherwise agreed, Customer remains fully liable for the total amount of the Purchase Price as set forth in the Purchase Order. If Customer wishes to cancel the order prior to its shipment, it must give written notice of cancellation to Ebb at its offices in Pittsburgh, Pennsylvania. If such written notice is received after shipment of any part of the order has been made, the full purchase price will be due and payable in accordance with this Agreement, and the order cannot be cancelled.  Past due amounts shall bear interest at the rate of 10% per annum or the maximum rate permitted by applicable law, whichever is less. If Ebb retains a collection agency or attorney to collect any past due payment, Ebb shall be entitled to recover the costs of collection, including attorney’s fees and expenses. Furthermore, Customer’s failure to pay any amount due under the Purchase Order shall entitle Ebb to withhold all future shipments of goods and provision of services, without notice to Customer.

 

  1. CREDIT STATEMENT. Customer certifies that the information submitted pertaining to its credit worthiness is accurate. Customer expressly authorizes consumer reporting agencies and other persons to furnish credit information to Ebb, separately or jointly with other creditors, for use in connection with the Purchase Order. Ebb and joint users of such information are authorized to receive and exchange credit information and to obtain such information as appropriate for the express purpose of assessing Customer’s credit worthiness.

 

  1. SECURITY INTEREST. Customer grants to Ebb a purchase money security interest in the goods until all payments have been made in full. Upon Customer’s default in payment, Ebb may, without notice to or demand upon Customer, declare Customer to be in default, and upon such default Ebb shall have all rights and remedies of a secured party under the Uniform Commercial Code of the Commonwealth of Pennsylvania or of any jurisdiction in which the goods are located. Without limiting the foregoing, upon default, Ebb may, without prior notice to Customer, peaceably enter any premises in which the goods may be found and render inoperable or remove the same. Customer agrees to execute any documents requested by Ebb to perfect its security interest. No exercise of any right by Ebb under the Purchase Order shall constitute an election of remedies precluding the subsequent exercise of any other rights, powers and remedies available under the Purchase Order.

 

  1. DELIVERY. All goods shall be delivered to Customer F.O.B. Ebb’s shipping points, at which time title to and risk of loss of any goods shall pass to Customer. Delivery of the goods to a common carrier will be deemed a satisfactory delivery by Ebb to Customer. All shipping costs and insurance shall be for the account of and paid by Customer. Ebb will, on behalf of and for the benefit of Customer, insure to full value the goods shipped or declare full value of such goods at the time of delivery to the common carrier selected by Ebb. Ebb will select, at its discretion, the types and amount of packaging and the carrier of any insurance. In the event of loss or damage of any of the goods during shipment, Customer’s only remedy shall be to make a claim against the carrier. Ebb shall have the right to make shipments and/or deliveries in separate lots. Ebb does not guaranty delivery by any specific date.

 

  1. INSPECTION; RETURNED GOODS. Customer shall promptly inspect the goods upon receipt. Customer will be deemed to have accepted the goods if Customer fails to give written notice of rejection within 10 business days of receipt of goods or at the end of any applicable trial period (whichever is longer).  No part of the goods may be returned to Ebb after expiration of any applicable trial period unless authorization in writing has been secured from an authorized representative of Ebb.

 

  1. DELAY. Ebb shall be excused from any delay or failure in performance of the Purchase Order due to acts of God, perils of the sea, fire, flood, epidemic, war, civil disorder, government acts or restrictions, accidents, plant conditions, strikes, labor difficulties, failure or delay in transportation, shortages of fuel, energy, labor or materials, failure of Ebb’s supplier(s) to perform its contract(s) with Ebb, or any other causes beyond Ebb’s reasonable control affecting production, transportation or delivery of the goods.

 

  1. WARRANTY; LIMITATION OF CONTRACT REMEDIES. Ebb warrants that the Products will be free from defects of workmanship and materials from the date of purchase for the periods specified below (the Warranty Period): Ebb Device – one (1) year after delivery of the goods to the end user; Disposable Kit – ninety (90) days after delivery of the goods to the end user. If the Product fails under normal conditions of use and the Product is returned to Ebb within the Warranty Period, Ebb will repair or replace the defective Product with a new or refurbished Product, at Ebb’s sole discretion. This warranty is non-transferable and only applies to the original end user of the Product. The foregoing replacement remedy will be the sole remedy for breach of the foregoing warranty. This warranty does not cover damage caused by accident, misuse, abuse, negligence, alteration, failure to use or maintain the Product under conditions of normal use and in accordance with the terms of the product literature, and other defects not related to materials or workmanship. This warranty does not apply to any Product that may have been repaired or altered by anyone other than Ebb.  Ebb disclaims all liability for economic loss, loss of profits, overhead, or indirect, consequential, special or incidental damages which may be claimed to arise from any sale or use of the Product. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. This warranty is conditioned upon Customer giving Ebb written notice of any defect prior to expiration of the warranty period. EXCEPT AS EXPRESSLY STATED IN THIS PARAGRAPH, EBB MAKES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE GOODS AND SERVICES PROVIDED UNDER THESE TERMS AND CONDITIONS, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. Ebb reserves the right to change the construction or design of the goods without notice to Customer, so long as the function and performance of the goods are not substantially altered.

 

  1. DISCLAIMER. EBB SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOST PROFITS RESULTING FROM BREACH OF WARRANTY OR ANY OTHER PROVISION OF THESE TERMS AND CONDITIONS, OR FOR ANY LIABILITY OF CUSTOMER TO ANY THIRD PARTY. In no event will any claim against or recovery from Ebb be greater in amount than the purchase price of the goods or services with respect to which such claim or recovery is made. Ebb’s warranties and obligations under these Terms and Conditions shall terminate without notice to Customer if the goods are subject to misuse, improper application or alteration or are repaired by anyone other than an Ebb authorized service representative.

 

  1. AUTHORIZED FIELD OF USE. As used in these Terms and Conditions, the term “Authorized Field of Use” shall mean and include the following: patient treatment of insomnia.

 

  1. CONDITIONAL SALE. Ebb is willing to sell the Device to sleep physicians, sleep labs, clinicians, researchers, hospitals, and other health care providers on the express condition that the Device shall be used ONLY within the Authorized Field of Use. Customer acknowledges that this condition is a material term of the contract and that absent such condition Ebb would not sell the Device to Customer at the contract price. Ebb may offer the Device for use by patients or others in other channels on different terms. Accordingly, Customer covenants and agrees that it shall use the Device only within the Authorized Field of Use, and further covenants and agrees that it shall not use or permit others to use the Device for any of the following prohibited activities: studies intended to provide a definitive assessment of efficacy for a therapeutic, vaccine, diagnostic or device (commonly referred to as Phase III clinical trials); post-launch surveillance (commonly referred to as Phase IV clinical trials); identification of patients for inclusion in or exclusion from Phase III or Phase IV clinical trials; and evaluation of patients in the course of Phase III or Phase IV clinical trials. Customer agrees that it shall give all users, research sponsors and transferees of the Device adequate prior notice of the field of use limitations set forth in paragraphs 13 through 16 of these Terms and Conditions.

 

  1. PATENT RIGHTS. The Device and certain methods of its use are covered by one or more claims under United States patent application PCT/US13/70251 (including resulting national stage applications and any extensions, continuations, continuations-in-part, divisions, reexaminations and reissues) (the “Applicable Patents”), which are owned by or licensed to Ebb. Customer is granted a non-exclusive sublicense under the Applicable Patents to use the Device and practice the methods within the Authorized Field of Use. Any use of the Device or methods outside the Authorized Field of Use is not authorized and shall be deemed to be an infringement of the Applicable Patents. The restrictions in this paragraph 15 shall terminate upon the expiration date of the last of the Applicable Patents.

 

  1. COPYRIGHTS. The Device incorporates proprietary software of Ebb (the “Software”). Ebb grants to Customer a non-exclusive, non-transferable license under applicable copyright law to use the Software within the Authorized Field of Use only. Any use of the Software outside the Authorized Field of Use is not authorized and shall be deemed to be an infringement of Ebb’s copyrights. This license does not include the right to make copies of the Software, extract, modify or incorporate any part of the Software, nor reverse engineer, decompile, or disassemble the Software. Ebb shall have no obligation to supply software upgrades (i.e., new versions, or new, or in-line releases).

 

  1. ASSIGNMENT AND TRANSFER. The Purchase Order shall be binding upon Customer and its successors and assigns. Customer may not assign or subcontract any rights or obligations under the Purchase Order, nor sell, lease, lend, donate, give or otherwise transfer (collectively “Transfer”) a Device to a person or entity other than to the Customer’s patient, without Ebb’s written consent, which shall not be unreasonably withheld. As a condition precedent to any Transfer of a Device to person other than Customer’s -patient, Customer shall require the third party to enter into a written assumption agreement, reasonably acceptable to Ebb, in which the third party agrees to assume all of Customer’s obligations under the Purchase Order, including the field of use restrictions set forth above.

 

  1. APPLICABLE LAW. Notwithstanding Customer’s acceptance of these Terms and Conditions in any other jurisdiction, these Terms and Conditions shall be governed by the laws of the Commonwealth of Pennsylvania, without regard to its conflict of law principles, and the parties expressly consent to the jurisdiction and venue of the state and federal courts located in Allegheny County of the Commonwealth of Pennsylvania. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to the Purchase

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