gConcierge Terms and Conditions
These Terms and Conditions apply to the purchase and license of GammaCore Sapphire Products from electroCore under the gConcierge Order Form signed by Customer and electroCore “Order Form”. These Terms and Conditions are subject to change by electroCore and, to the extent that such changes are made, will be in effect as of the “Last Date Revised” referenced on the Website.
- PRICE, PAYMENTS & CHARGES
- Customer shall purchase the Purchased Products from electroCore at the Product Price and may resell the Products to Patients for not less than the Minimum Patient Price.
- Customer shall license the Licensed Products for the License Fee during the License Period (as set defined below).
- Customer shall be liable for payment of shipping charges, insurance costs, taxes (including sales taxes) and other similar charges associated with the Products.
- Payments shall be made prior to shipment of the Products as set forth in Form of Payment in the Order Form, without right of set-off or counterclaim and clear of and without deduction for any other charges of any kind.
- LICENSED PRODUCTS
- During the License Period, electroCore grants a revocable, non-exclusive, non-transferable, limited license to Customer for Customer to provide the Licensed Product to its Patients for their exclusive use.
- Licensed Products are not intended to be shared and are limited to one user.
- The license period “License Period” shall commence upon the Effective Date and continue until:
- the expiration of the License Period set forth in the Order Form; or
- the date electroCore requests in writing that Customer return the Licensed Products.
- Customer acknowledges and agrees that electroCore may request the return of the Licensed Products for any reason in its sole discretion, including because the Customer has not purchased Refill Therapy of for a period of sixty (60) days.
- DELIVERY, OWNERSHIP OF THE PRODUCTS & RISK OF LOSS.
- Upon receipt of the Payment Price, electroCore shall ship the Products to Customer using the shipping method of electroCore’s choosing.
- Ownership of the Purchased Products shall pass to Customer upon electroCore’s delivery of the Products to the carrier.
- electroCore shall retain full ownership of any Licensed Products.
- Risk of loss of Products shall pass to Customer on electroCore’s delivery of the Products to the carrier and electroCore shall not be liable for any damage to Products, including during shipment.
- Customer shall be responsible for insurance of the Products while in transit and any Licensed Products in Customer’s possession.
- Products shall be deemed accepted by Customer unless Customer affirmatively rejects the Products by written notice, stating the reason for its rejection of the Products.
- MARKETING, TRAINING & SUPPORT
- Customer shall at its own expense promote, sell, market, and distribute the Products to Patients.
- Customer shall ensure that any Personnel selling the Products are familiar with technical information relating to the Products and sufficiently knowledgeable about the industry and products that are competitive with each Product (including specifications, features, and benefits) so as to be able to explain in detail to Patients the differences between the Products and competing products, and information on standard protocols and features of Products.
- Customer shall follow any reasonable requests and directions of electroCore in relation to training and shall use only promotional information and material for the Products which have been provided and approved by electroCore.
- To the extent permitted by Law, Customer shall notify electroCore of the contact details of each Patient that uses the Products to enable electroCore to provide technical support and training to such Patients.
- REPRESENTATIONS, WARRANTIES, COVENANTS AND NOTIFICATIONS
- Customer represents and warrants that it is a licensed prescriber.
- Customer covenants:
- that it shall dispense Products by prescription only;
- that the Products shall only be purchased and/or licensed for use by Patients and will be prescribed only when medically appropriate for a use cleared or authorized by the Federal Drug Administration;
- that Customer shall comply with all Federal Drug Administration regulations regarding notification of adverse events and complaints;
- that Customer or a healthcare provider in Customer’s practice, will supervise Patient’s treatment;
- that Customer shall not sell the Products below the Minimum Patient Price;
- that Customer shall not prescribe or distribute Products outside of the United States;
- that Customer shall not seek reimbursement for the Product from any private or public insurance company or insurance coverage program, including TRICARE or from the Department of Defense, Veterans Affairs, or any state patient assistance or healthcare program;
- that the Agreement is not provided in consideration of any new or additional prescriptions of the Product, nor as a reward for past prescriptions, and that Customer is under no obligation to use/prescribe or continue to use and/or prescribe the Products;
- that the Products may not be resold, bartered, or traded, or offered for resale, barter or trade to any third parties, including but not limited to distributors, pharmacies, or other healthcare providers; and
- that the information provided in this Agreement is complete and accurate to the best of Customer’s knowledge.
- Each Party shall promptly notify the in writing if it becomes aware of any issue with a Product, including relating to regulatory compliance, safety or efficacy of a Product. Customer shall notify electroCore immediately if it becomes aware of any death or bodily injury caused by a Product (or suspected to be caused by a Product) or any malfunction of a Product.
- electroCore shall be responsible for responding to all issues relating to Products, including to Governmental Authorities. Customer shall not make any representation or filing with respect to any Product to any Governmental Authority without electroCore’s prior written approval.
- Customer shall, at its own expense, obtain and maintain required licenses, certifications, credentials, and permits (“Licenses”) necessary to conduct business in accordance with this Agreement and shall immediately notify electroCore if it no longer holds the necessary Licenses.
- On reasonable request during the Term and within one (1) year after the Effective Date, electroCore may audit Customer’s files relating to its sales, marketing, and inventory of Products regarding transactions that took place in the preceding twelve (12) months.
- USE OF TRADEMARKS
- electroCore is the owner of the Trademarks and may, by written notice and in its sole discretion, grant Customer a royalty-free, non-exclusive, non-transferable and non-assignable license to use electroCore’s Trademarks solely as necessary to promote, market and sell the Products (“Trademark License”).
- Customer acknowledges that, if granted a Trademark License, it shall be authorized only to use the Trademarks as preapproved by electroCore in writing and, except as expressly set out in this Agreement, electroCore grants no right or license to Customer, by implication, estoppel, or otherwise, to the Products or any Intellectual Property Rights of electroCore. All goodwill associated with Customer’s use of the Trademarks shall inure to the benefit of and be the property of electroCore, and Customer hereby assigns and agrees to assign all goodwill created by Customer’s use of the Trademarks to electroCore.
- At the expiration of the License Period, or otherwise if notified by electroCore, Customer’s rights under this Section shall cease and Customer shall immediately cease all display, advertising, promotion, and use of all of the Trademarks and shall not thereafter use, advertise, promote, or display any trademark, trade name, or product designation or any part thereof that is similar to or confusing with the Trademarks or with any trademark, trade name, or product designation associated with electroCore.
- PRODUCT STANDARD & WARRANTY
- Products supplied to Customer by electroCore shall be manufactured, labeled, packaged and tested (while in the possession or control of electroCore), substantially free from defects in materials and workmanship; and compliant with all Laws, being the product standard (“Product Standard”).
- electroCore guarantees against any out of box failures and warrants that the Products shall meet the Product Standard. The warranty does not apply to any Product that :(i) has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions, or use contrary to any instructions issued by electroCore; or (ii) has been reconstructed, repaired, or altered by persons other than electroCore or its authorized Representative. Customer shall not service, repair, modify, alter, replace, reverse engineer or otherwise change any Products.
- If electroCore receives a notice from Customer alleging a Product does not meet the Product Standard, electroCore shall, in its sole discretion elect whether to repair or replace such Product or issue a refund to Customer. If electroCore elects to repair or replace a Product, electroCore shall bear the costs of shipment. In no event shall electroCore be liable for any additional costs, expenses or damages incurred by Customer directly or indirectly because of a defect, damage or discrepancy in a Product. For the avoidance of doubt, sales of Products to Customer are made on a one-way basis and Customer has no right to return Products to electroCore.
- Customer is not authorized to make and agrees that it shall not make any other warranty, representation or commitment, whether written or oral, on electroCore’s behalf unless authorized in writing by electroCore.
- EXCEPT FOR THE LIMITED WARRANTY PROVIDED IN THIS SECTION AND SUBJECT TO APPLICABLE PRODUCT LIABILITY LAW, THE PRODUCTS AND ANY TECHNICAL INFORMATION AND ASSISTANCE PROVIDED BY ELECTROCORE ARE PROVIDED AS IS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TYPICALITY, SAFETY, ACCURACY AND NON-INFRINGEMENT, AND ELECTROCORE GRANTS NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, BY STATUTE, IN ANY COMMUNICATION WITH CUSTOMER OR patients, OR OTHERWISE REGARDING THE PRODUCTS, THEIR FITNESS FOR ANY PURPOSE, THEIR QUALITY, OR THEIR MERCHANTABILITY. ELECTROCORE NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME ANY OTHER LIABILITIES ARISING OUT OF OR IN CONNECTION WITH THE SALE OR USE OF ANY PRODUCT. THE REMEDIES OF CUSTOMER SET FORTH HEREIN SHALL BE THE ONLY REMEDIES AVAILABLE. SAVE AS PROVIDED FOR BY MANDATORY PRODUCT LIABILITY LAW, ELECTROCORE SHALL IN NO EVENT BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST REVENUES OR PROFITS, WHETHER A CLAIM FOR SUCH DAMAGES IS BASED UPON WARRANTY, CONTRACT, TORT, COMMON LAW, STATUTE OR OTHERWISE.
- If electroCore discloses or makes Confidential Information available to Customer in connection with the sale of its Products, Customer shall: (i) protect and safeguard the confidentiality of electroCore’s Confidential Information with at least the same degree of care it would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use electroCore’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any person, except to Customer’s Representatives who need to know the Confidential Information to assist Customer, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
- Customer shall be responsible for any breach of the confidentiality obligations under this Agreement by any of its Representatives. Upon electroCore’s written request, Customer shall, promptly return or destroy (as directed by electroCore) all Confidential Information, including copies, that it has received under this Agreement. Upon request, Customer shall promptly provide electroCore with written certification of its having complied with the requirements of this Section.
- Subject to the terms and conditions of this Agreement, Customer shall indemnify, defend, and hold harmless electroCore and its parent, officers, directors, partners, members, shareholders, employees, agents, affiliates, successors, and permitted assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees, and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, (collectively, “Losses”), arising out of or relating to (i) breach or non-fulfillment of any representation, warranty, or covenant under this Agreement by Customer or its Personnel; (ii) any act or omission of Customer or its Personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; or (iii) any bodily injury, illness or death of any person or damage to real or tangible personal property caused or contributed to by the acts or omissions of Customer or its Personnel; (iv) any failure by Customer or its Personnel to comply with any applicable Laws; (v) allegations or claims that Customer breached its agreement with a third party because of or in connection with entering into, performing under or terminating this Agreement.
- electroCore shall promptly notify Customer in writing of a claim for indemnification under this Section.
- Notwithstanding anything to the contrary in this Agreement, Customer is not obligated to indemnify or defend electroCore for Losses to the extent that such Losses arise out of or result from electroCore or its Personnel’s: (i) negligent act or omission (including recklessness or willful misconduct); (ii) bad faith failure to comply with any of its obligations set out in this Agreement; or (iii) failure of electroCore to promptly notify Customer of a claim for which indemnification is sought; provided, however, that such Losses will be reduced only to the extent that Customer is prejudiced by electroCore’s failure to notify.
- LIMITATION OF LIABILITY
IN NO EVENT IS ELECTROCORE OR ITS REPRESENTATIVES LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF: (i) WHETHER THE DAMAGES WERE FORESEEABLE; (ii) WHETHER OR NOT ELECTROCORE WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES AND (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
Customer shall, at its own expense, maintain and carry in full force and effect, subject to appropriate levels of self-insurance, commercial general liability (including product liability) insurance with financially sound and reputable insurers in an amount sufficient to cover all claims for the acts or omissions of such Customer and its Representatives, evidence of which shall be provided to electroCore upon reasonable request. Customer shall require its insurer to waive all rights of subrogation against electroCore and its insurers.
- FORCE MAJEURE
electroCore shall not be liable for any failure or delay in fulfilling or performing any term of this Agreement to the extent such failure or delay is caused by or results from circumstances beyond electroCore’s control including: labor disputes, power failures, lightning, fire, atmospheric disturbances, legal enactment, government action, war, pandemic, strikes or similar causes, possible blackouts, disruptions in web hosting services.
- TERM AND TERMINATION
- The term of the Agreement shall commence on the Effective Date and continue until the expiration of the License Period, if no Licensed Products are to be provided under the Agreement, a period of 60 days (“Term”) from the Effective Date.
- Notwithstanding the foregoing, either Party may terminate this Agreement:
- for any reason upon thirty (30) days written notice;
- immediately if the other Party goes into liquidation either voluntary or compulsory (except for the purpose of amalgamation or reconstruction previously approved of in writing) or makes any assignment for the benefit of creditors or cease or threaten to cease to carry on business or is unable to pay its debts as they fall due, the Party shall each have the right to terminate this Agreement effective immediately upon written notice; provided, however, the Parties hereby acknowledge and agree that the licenses granted hereunder are licenses of intellectual property under Section 365(n) of the U.S. Bankruptcy Code, and each Party as licensee shall retain their respective rights thereunder; or
- immediately, in the event a Party is in breach of this agreement and fails to cure such breach within 60 days written notice from the other Party.
- EFFECT OF EXPIRATION OR TERMINATION.
- Expiration or earlier termination of the Term does not affect any rights of a Party that accrued before the expiration or earlier termination.
- On the expiration of the License Period, Customer shall return the Licensed Products to electroCore as soon as is reasonably practicable (not to exceed 60 days) using the shipping method directed by electroCore.
- If Customer fails to return the Licensed Products to electroCore as set forth in Section 14(b) or the Licensed Products are returned damaged or other than in good working condition (as determined by electroCore) Customer shall be liable to electroCore for the MSRP set forth in the Order Form.
- References. electroCore and Customer are jointly referred to as “Parties” and individually as “Party”.
- Entire Agreement. This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
- Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement must be in writing and addressed to the other Party at its address as set out forth in Customer Information in the Order Form, or as otherwise notified by a Party.
- The meaning of general words is not limited by specific examples introduced by ‘including’ or similar expression. The definitions given for any defined terms in this Agreement shall apply equally to both the singular and plural forms of the terms defined. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
- Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. On a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to, or the court may, modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Amendments, Waivers, and Consents. Any amendment to this Agreement shall be signed by electroCore’s Chief Executive Officer or Chief Financial Officer, or his designee, and an authorized representative of Customer. No waiver of any provision or consent to any action shall constitute a waiver of any other provisions or consent to any other current or future action or omission, whether or not similar. No waiver or consent shall constitute a continuing waiver or consent, except to the extent expressed in writing and signed by electroCore’s Chief Executive Officer or Chief Financial Officer, or his designee, and an authorized representative of Customer.
- Relationship of the Parties. The Parties are independent contractors and nothing in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency relationship, franchise, or business opportunity between electroCore and Customer. Neither Party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party.
- Successors and Assigns; electroCore Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their successors and permitted assigns. electroCore may assign any of its rights or delegate any of its obligations without the consent of Customer. Customer may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of electroCore.
- Governing Law, Jurisdiction, and Venue. The substantive Laws of the State of New Jersey, excluding its conflict of law rules to the extent such rules would apply the law of another jurisdiction, govern all matters arising out of, or relating to, this Agreement and all of the transactions it contemplates, including without limitation its validity, interpretation, construction, performance, and enforcement. The courts located in the State of New Jersey shall have exclusive jurisdiction and be proper venue over any dispute between the Parties related to this Agreement, and each of the Parties hereby consent to the jurisdiction of such courts and agree not to contest such jurisdiction and venue. The Parties agree that the United Nations Convention on Contracts for the International Sale of Products does not apply to this Agreement.
- Counterparts and Electronic Execution. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement A signed copy of this Agreement delivered by e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
The capitalized terms used in this Agreement shall have the meanings set forth below or otherwise as set forth within this Agreement:
- “Confidential Information” means confidential information including information about its business affairs, products, and services, information and materials comprising or relating to Intellectual Property Rights, trade secrets, third-party confidential information, the terms of this Agreement and other sensitive or proprietary information; whether orally or in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” and excludes information that, at the time of disclosure:: (i) is or becomes generally available to and known by the public, other than as a result of, directly or indirectly, a breach of this Agreement; (ii) is or becomes available on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was known prior to being disclosed under this Agreement; (iv) was or is independently developed by the without reference to or use of, in whole or in part, any of Discloser’s Confidential Information; or (v) must be disclosed under applicable Laws, provided that Recipient provides prior written notice of such disclosure to Discloser and takes reasonable and lawful actions to avoid and/or minimize the extent of such disclosure;
- “Customer” means the Customer as set forth on the Order Form;
- “Effective Date” means the date the Order Form is signed by the last Party to sign the Order Form;
- “Governmental Approval” means any required certifications, credentials, licenses, and permits necessary to conduct business in accordance with this Agreement of notification, registration, or approval is required in a jurisdiction to give legal effect to this Agreement or the transactions contemplated under this Agreement;
- “Governmental Authority” means any governmental authority including any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction);
- “Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (i) Patents; (ii) Trademarks; (iii) internet domain names, whether or not Trademarks, registered by any authorized private registrar or Governmental Authority, web addresses, web pages, website, and URLs; (iv) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software, and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (v) Trade Secrets; and (vi) all industrial and other intellectual property rights, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights or forms of protection under the Laws of any jurisdiction throughout in any part of the world;
- “Law” means any law, statute, ordinance, regulation, rule, code, order, constitution, treaty, common law judgment, decree, other requirement or rule of a Governmental Authority applicable in the United States or other place in which the Products are manufactured, marketed, sold, tested, investigated or otherwise regulated;
- “License Period” has the meaning set forth in Section 2(c);
- “Patents” means all patents (including all reissues, divisionals, provisionals, continuations, and continuations-in-part, re-examinations, renewals, substitutions, and extensions thereof), patent applications, and other patent rights and any other Governmental Authority-issued indicia of invention ownership (including inventor’s certificates, petty patents, and patent utility models);
- “Patient” means a patient who purchases the Products from Customer;
- “Personnel” means any officer, director, partner, member, shareholder, employee, agent, affiliates, associate, or other designee of a Party;
- “Product” shall mean a Purchased Product and Licensed Product as described in Schedule 1, Product Information.
- “Representatives” means affiliates, employees, officers, directors, partners, shareholders, agents, attorneys, third-party advisors, successors, and permitted assigns of a Party as the context so implies;
- “Trademarks” means any trademark or tradename involving the names “electroCore”, “gammaCore”, gConcierge and all rights in and to electroCore’s US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names, and domain names and other similar designations of source, sponsorship, association, or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world;
- “Trade Secrets” means all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures, and other confidential and proprietary information and all rights therein; and
- “Website” means electroCore.com/gconcierge-terms-and-conditions.
Last Date Revised 7/30/2021