EFFECTIVE AS OF MARCH 3rd, 2019
By accessing the Website and/or placing an order, you agree to be bound by these TCS.
ALL SALES OF PRODUCTS BY OXYENSURE INC. (“OXYENSURE”) TO YOU AND YOUR USE ARE EXPRESSLY CONDITIONED ON YOUR ACCEPTANCE OF THE FOLLOWING TCS, AND ACCEPTANCE OF THE PRODUCT BY YOU IS AN ACCEPTANCE OF THE FOLLOWING TCS. “YOU” SHALL REFER TO THE PURCHASER OF PRODUCT DIRECTLY FROM OXYENSURE
Please read these TCS carefully and make sure that you understand them before ordering any Products from our Website. Please note that before placing an order you will be asked to agree to these TCS. If you refuse to accept these TCS, you will not be able to order any Products from our Website.
The Website is operated by Expedite LLC dba Oxyensure.
Customer acknowledges that some Products purchased from Oxyensure are medical devices regulated by the Food and Drug Administration (“FDA”). Sale in the United States of such Products require a medical prescription from an authorized medical authority. You agree that you will not sell or transfer the Products to any other person. You agree that you will not sell, export, or re-export Products to any third party in any country other than your domestic country, unless given written permission to do so by Oxyensure and unless you first obtain all appropriate U.S. and foreign government licenses and permissions. You agree to comply with all state,federal, and foreign government laws and regulations governing the provision of medical devices or home oxygen. By accepting these Products, you certify you shall use the Products in full compliance with all applicable laws and regulations, including all state and federal regulations.
A PRESCRIPTION IS REQUIRED FOR THE SALE OF THE PRODUCTS. FAILURE TO PROVIDE A PRESCRIPTION WILL VOID THE SALE.
- This Website is intended only for consumers wishing to order Oxyensure Products and Services online for delivery in the United States. Orders for delivery outside the United States will not be accepted. Commercial resales of the Oxyensure Products are prohibited; commercial resale will void the warranty set forth below
- The packaging of the Products may vary from that shown on images on our site.
2.ORDERING FROM US
- You are deemed to place an order with us by ordering via our online checkout process. As part of our checkout process you will be given the opportunity to check your order and to correct any errors. We will send you an order acknowledgement detailing the Products you have ordered. Please note orders cannot be expedited after placed online.
- Our acceptance of an order takes place when we ship the order. We will send you a shipping confirmation by email. When we send the order the purchase contract will be complete, unless we have notified you that we do not accept your order, are unable to fulfil your order, or you have cancelled your order.
- We may refuse to accept an order:
- where Products are not available;
- where we cannot obtain authorization for your payment;
- if there has been a pricing or Product description error; or
- if you do not meet any eligibility criteria set out in our TCS, including designating a delivery address outside the United States.
- If we are unable to supply you with a Product, for example because that Product is not in stock or no longer available or because we cannot meet your requested delivery date or because of an error in the price on the Website, we will inform you of this by e-mail and we will not process your order. If you have already paid for the Products, we will refund you the full amount including any delivery costs charged as soon as possible.
- Please take the time to read and check your order at each page of the order process.
- Prices, offers, and Products are subject to availability and may change before (but not after) we accept your order. If something becomes unavailable we may offer you an alternative
- We accept payment by credit or debit card or such other means as may be specified on the Website. If you pay by credit or debit card, payment is authorized and deducted upon acceptance of your order. If you use another method of payment as offered on the Website, the time of payment may differ.
- Prices for our Products may change from time to time, but changes will not affect any order you have already placed.
- It is possible that, despite our reasonable efforts, some of the Products or Services on our site may be incorrectly priced. If we discover an error in the price of the Products orServices you have ordered we will contact you to inform you of this error and we will give you the option of continuing to purchase the Product at the correct price or cancelling your order. We will not process your order until we have your instructions. If we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you in writing via email. Please note that if the pricing error is obvious and unmistakable and could have reasonably been recognized by you as a mispricing, we do not have to accept your request or provide the Products to you at the incorrect (lower) price.
- Delivery will be to the address specified on your order, which must be within the United States. We do not deliver to PO boxes.
- The delivery charges specified as part of your order will apply.
- Once your order has been shipped from our warehouse, you will receive an automated email with the invoice and tracking reference, allowing you to track your order. Title to Products and risk of loss shall pass to you upon delivery of Products to the carrier at the point of shipment.
- We do everything we can to meet the delivery times specified in this section. However, occasionally delivery times may be affected by factors beyond our control and therefore they cannot be guaranteed.
- You must comply with all applicable laws and regulations of the United States. We will not be liable or responsible if you break any such law.
5. 30-DAY SATISFACTION GUARANTEE POLICY AND RETURNS
- It is your responsibility to inspect all Products promptly upon receipt for damage attributable to the carrier and to make claim directly to the carrier for such damage. The furnishing by Oxyensure of a Product to Customer shall constitute acceptance of that Product unless written notice of shipping damage or quantity is received by Oxyensure within ten (10) business days of delivery to Customer’s designated site, unless otherwise expressly agreed to by Oxyensure.
- Product returns will not be accepted by Oxyensure unless Oxyensure’s written authorization has been obtained in advance in the form of a Return Material Authorization (“RMA”) number, and the items are received by Oxyensure in their original condition. When returning Product, you are required to include a copy of the original invoice or packing slip to ensure prompt issuing of credits. The RMA number must be written on the documents enclosed and on the outside of the shipping box. All return shipments are to be paid by you. Oxyensure provides a 30-day risk free trial period from date of shipment; subject to other conditions contained herein. During this period, you may return Product for full credit equal to the invoice price. Credit is not eligible for Product returned after 30 days from invoice date. Accessories are not eligible for a return for credit unless purchased and returned along with an eligible Oxyensure portable oxygen concentrator bundle. This credit will be paid once Oxyensure receives the Product back and the Product has been inspected to confirm all components are returned. If there are missing or damaged components, a partial credit may be given. This may take up to (ten) 10 business days after receipt of Product at Oxyensure’s facilities.
- Oxyensure warrants that your Oxyensure Product will be free from defects in material and workmanship from the date of purchase for the period specified below.
Item Warranty period Portable oxygen concentrator (POC) 5 years Sieve bed
Battery – internal and external/supplemental
Accessories – excluding cannulas
- This warranty is only available to you as the initial consumer. It is not transferable.
- If the product fails under conditions of normal use, Oxyensure will repair or replace, at its option, the defective product or any of its components.
- This Limited Warranty does not cover: (i) any damage caused as a result of improper use, abuse, modification or alteration of the product; (ii) repairs carried out by any service organization that has not been expressly authorized by Oxyensure to perform such repairs; and (iii) any damage or contamination due to cigarette, pipe, cigar or other smoke.
- Warranty is void on product sold, or resold, outside the United States.
- Warranty claims on defective product must be made by you at the point of purchase.
- This warranty replaces all other expressed or implied warranties, including any implied warranty of merchantability or fitness for a particular purpose. Some regions or states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you.
- Oxyensure will not be responsible for any incidental or consequential damages claimed to have resulted from the sale, installation or use of any Oxyensure product. Some regions or states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation may not apply to you.
- This warranty gives you specific legal rights, and you may also have other rights which vary from region to region. For further information on your warranty rights, contact your local Oxyensure dealer or Oxyensure office.
- Products, or parts of Products, which have been subject to abuse, misuse, accident, alteration, neglect, negligence, improper operation, unusual physical, thermal or electrical stress, Acts of God or other acts not within the control of Oxyensure, or unauthorized installation, repair or modification are not covered by warranty and Oxyensure shall have no obligation with respect to such Products or parts of Products. If Oxyensure determines that the Product is not covered by the limited warranty, then you shall pay Oxyensure the charges for repair or replacement of the Product in addition to all shipping expenses. The limited warranty shall not apply to (i) normal routine service items (such as filters, etc); (ii) disposable items (such as nasal cannulas, etc); (iii) use of the Product with components, accessories or parts other than those expressly approved by Oxyensure as discussed in the Product user manual, or (iv) defects caused by effects of normal wear and tear.
- If Customer’s account becomes delinquent, Oxyensure reserves the right to not allow advance replacements and may only perform repair RMAs to limit Oxyensure’s exposure. An account is considered to be delinquent if there is any outstanding invoice which is 60 days past due.
- THE LIMITED WARRANTY SET FORTH HEREIN AND IN THE WARRANTY STATEMENT PROVIDED WITH THE PRODUCT IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NO REPRESENTATION OR STATEMENT OF OXYENSURE MAY CHANGE OR ALTER THIS LIMITED WARRANTY, UNLESS AGREED TO AND AUTHORIZED IN WRITING BY OXYENSURE.
- You agree to defend, indemnify, and hold harmless Oxyensure from and against any liability, damage, loss, or expense (including reasonable attorneys’ fees and expenses of litigation) in connection with any claims, suits, or proceedings arising out of or relating to the use or other exploitation of the Products, unless proximately caused by the sole gross negligence or willful misconduct of Oxyensure.
- We only supply the Products for private use. You agree not to use the Products for any commercial, business or resale purposes, and we have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
8.EVENTS OUTSIDE OUR CONTROL
- We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a Contract that is caused by an Event Outside Our Control. An Event Outside Our Control is defined below in Clause 8.b).
- An “Event Outside Our Control” means any act or event beyond our reasonable control, including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.
- If an Event Outside Our Control takes place that affects the performance of our obligations under these TCS:
- we will contact you as soon as reasonably possible to notify you; and
- our obligations will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. Where the Event Outside Our Control affects our delivery of Products to you, we will arrange a new delivery date with you after the Event Outside Our Control is over.
- You may cancel an order affected by an Event Outside Our Control which has continued for more than 30 days. To cancel, please contact us. If you opt to cancel, you will have to return (at our cost) any relevant Products you have already received and we will refund the price you have paid, including any delivery charges.
9.GOVERNING LAW AND JURISDICTION
- The validity, interpretation, and performance of these TCS shall be governed by and construed under the applicable laws of the State of California as if performed wholly within the state and without giving effect of the principles of conflict laws.
- All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, facsimile or by registered or certified mail (postage prepaid, return receipt requested) to the other party at, in the case of Customer, the Customer’s billing address on record and, in the case of Oxyensure, 8910 University Center Lane Suite 400, San Diego, CA 92122
- Except as provided otherwise herein, all disputes between the parties hereto shall be determined solely and exclusively by arbitration under, and in accordance with the rules then in effect of, the American Arbitration Association, or any successors thereto (“AAA”), in Santa Barbara County, California, unless the parties otherwise agree in writing. The parties shall jointly select an arbitrator. In the event the parties fail to agree upon an arbitrator within ten (10) days, then Oxyensure shall select an arbitrator and Customer shall select an arbitrator and such arbitrators shall then select a third arbitrator to serve as the sole arbitrator, provided that if either Oxyensure or Customer, in such event, fails to select an arbitrator within seven (7) days, such arbitrator shall be selected by the AAA upon application of either Oxyensure or Customer. Judgment upon the award of the agreed upon arbitrator or the so chosen third arbitrator, as the case may be, shall be binding and shall be entered into by a court of competent jurisdiction.
- The failure by Oxyensure to enforce at any time any of the provisions herein, or to require at any time the performance by Customer of any of the provisions herein, will not in any way be construed as a waiver of such provisions.
- Neither party may assign or delegate the contract formed by this acceptance of these TCS without the prior written consent of the other party, provided that Oxyensure may assign this contract to a person or entity into which Oxyensure has merged or which has otherwise succeeded to all or substantially all of Oxyensure’s business or assets pertaining hereto and further provided that Oxyensure may assign rights to receive payments from Customer to a third party.
- When Oxyensure has entered into a separate agreement with a distributor, customer or reseller the terms and agreements referenced within those agreements will supersede the language in this document when referencing to such items as shipping terms, finance arrangements, acceptance of product, notice of changes or substitutions, limited warranty specifications and out of box failure procedures, etc. If the Provider Agreement does not specify or make note of a specific instance or condition, this agreement will take precedent.
- These terms and conditions shall constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior and contemporaneous representations, agreements, negotiations, advertisements, statements, or understandings, whether oral or written. No amendment to these terms and conditions shall be binding on Oxyensure unless such amendment is in writing and executed by an authorized representative of Oxyensure. Any document containing conflicting terms shall not take precedence over these terms and conditions, unless otherwise agreed to in writing by Oxyensure. Any breach hereunder may be waived only by a writing signed by the party against whom enforcement is sought.
10. OTHER IMPORTANT TERMS
- You may not assign, sub-license or otherwise transfer any of your rights under these TCS.
- If any provision of these TCS is found by any court of competent jurisdiction to be invalid, the invalidity of that provision will not affect the validity of the remaining provisions which shall continue to have full force and effect.
- Only the parties to these TCS may seek to enforce them.
- Oxyensure owns or licenses all right, title and interest in and to the Product trademarks, and other identifying marks and any associated goodwill (“Trademarks”). Oxyensure does not grant and Customer shall not receive any right, title or interest in or to any of the Trademarks. Furthermore, Oxyensure and its licensors retain all proprietary rights in and to all designs, engineering details, and other technology and information pertaining to the Products. The Products are offered for sale and are sold by Oxyensure subject in every case to the condition that such sale does not convey any license, expressly or by implication, to manufacture, duplicate, or otherwise copy the Products.