Patient Terms and Conditions
Revised as of May 15, 2022
THIS DOCUMENT CONTAINS IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU, PLEASE READ IT CAREFULLY.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
BY PLACING AN ORDER FOR PRODUCTS FROM ELECTROCORE, YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS. YOU MAY NOT ORDER OR OBTAIN PRODUCTS FROM ELECTROCORE IF YOU DO NOT AGREE TO THESE TERMS.
These Terms and Conditions apply to the license of the GammaCore Sapphire Product Line Nos. 13016-04001, 13016-04002, 13016-04005 (collectively, the “Licensed Products”) and Purchased Products (Purchased Products together with the Licensed Products, the “Products”) from electroCore. These Terms and Conditions are subject to change by electroCore at any time and, to the extent that such changes are made, will be in effect as of the “Last Date Revised” referenced on the Site. All capitalized terms not otherwise defined shall have the meanings given to them in Section 14 of these Terms and Conditions.
- PRICE, PAYMENTS & CHARGES
- Patient shall purchase the Purchased Products from electroCore at the prices determined by electroCore, which are subject to change without notice.
- Patient shall license the Licensed Products for the fee determined by electroCore for the License Period.
- Patient represents and warrants that (i) the credit card information supplied is true, correct, and complete, (ii) Patient is duly authorized to use such credit card for the purchase, (iii) charges incurred will be honored by Patient’s credit card company, and (iv) Patient will pay charges incurred at the posted prices, including all applicable taxes, if any.
- LICENSED PRODUCTS
- During the License Period, electroCore grants a revocable, non-exclusive, non-transferable, limited license to Patients for their exclusive use.
- Licensed Products are not intended to be shared and are limited to one user.
- The “License Period” shall commence upon delivery of the Licensed Products to the Patient, and continue until the earlier of:
- the expiration date of the Licensed Products; or
- the date electroCore requests in writing that Patient return the Licensed Product.
- Patient shall, upon request for any reason by electroCore in its sole discretion, return the Licensed Products to electroCore pursuant to instructions provided by electroCore with its request. Patient’s failure to return the Licensed Product to electroCore pursuant to such written instructions shall be liable to electroCore for the Value of the Licensed Products.
- DELIVERY, OWNERSHIP OF THE PRODUCTS & RISK OF LOSS.
- Upon receipt of the purchase price set forth by electroCore and a valid prescription for the Patient ordering the Products, the Products will be shipped to Patient.
- Ownership of the Purchased Products shall pass to Patient upon delivery of the Products to the carrier.
- electroCore shall retain full ownership of any Licensed Products.
- Risk of loss of Products shall pass to Patients upon delivery of the Products to the carrier and electroCore shall not be liable for any damage to Products, including during shipment.
- electroCore is not liable for any delays in shipments.
- Products shall be deemed accepted by Patient unless he/she affirmatively rejects the Products by written notice provided within three (3) business days of receipt stating the reason for its rejection of the Products.
- TRAINING. Patients shall follow any reasonable requests and directions of electroCore in relation to training.
- REPRESENTATIONS, WARRANTIES, COVENANTS AND NOTIFICATIONS
- Patient covenants that the Products shall not be resold, bartered, or traded, or offered for resale, bartered or traded to any third parties, including but not limited to distributors, pharmacies, or healthcare providers.
- Patient shall promptly notify electroCore in writing if it becomes aware of any issue with a Product, including relating to regulatory compliance, safety or efficacy of a Product. Patient 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.
- USE OF TRADEMARKS. electroCore is the owner of the Trademarks.
- PRODUCT STANDARD & WARRANTY
- Products supplied to Patients 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.
- Patients shall not service, repair, modify, alter, replace, reverse engineer or otherwise change any Products.
- If electroCore receives a notice 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. 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 Patient directly or indirectly because of a defect, damage or discrepancy in a Product. For the avoidance of doubt, sales of Purchased Products to Patient are made on a one-way basis and Patient has no right to return Purchased Products to 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 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 SET FORTH HEREIN SHALL BE THE ONLY REMEDIES AVAILABLE TO PATIENTS. 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.
- LIMITATION OF LIABILITY
THE REMEDIES DESCRIBED ABOVE ARE A PATIENT’S SOLE AND EXCLUSIVE REMEDIES AND ELECTROCORE’S ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH ABOVE. ELECTROCORE’S LIABILITY WILL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL PURCHASE PRICE PAID FOR THE DEFECTIVE PRODUCTS FROM ELECTROCRE, NOR WILL ELECTROCORE BE LIABLE FOR ANY LOSS OF WORK, DATA, USE, BUSINESS, REPUTATION, REVENUE, COSTS OF REPLACEMENT PRODUCTS, OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OR LOSSES, WHETHER DIRECT OR INDIRECT. 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.
- 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.
- DISPUTE RESOLUTION AND BINDING ARBITRATION.
- PATIENTS AND ELECTROCORE ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT PATIENT WOULD HAVE IF PATIENT WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT, OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES FROM ELECTROCORE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
- The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Section 11. (The AAA Rules are available at adr.org or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section. The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Terms and Conditions is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
- Patients agree to an arbitration on an individual basis. In any dispute, NEITHER PATIENTS NOR ELECTROCORE WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER PATIENTS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
- If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
- EFFECT OF EXPIRATION OR TERMINATION.
- Expiration or earlier termination of the License Period does not affect any rights that accrued before the expiration or earlier termination.
- On the expiration of the License Period, Patients shall, in electroCore’s sole discretion, 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 Patient fails to return the Licensed Products to electroCore as set forth in Section 2.d of these these Terms and Conditions, or the Licensed Products are returned damaged or other than in good working condition (as determined by electroCore) Patient shall be liable to electroCore for the Value of the Licensed Products.
- Entire Agreement. These Terms and Conditions constitute the sole and entire agreement between electroCore and Patient 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. electroCore may provide any notice to a Patient under these Terms and Conditions by: (i) sending a message to the email address such Patient provides; or ii) providing an automated telephone message at the number provided by Patient; or (iii) posting to the Site. Notices sent by email or automated telephone message will be effective when electroCore sends the email or automated telephone message, and notices provided by posting will be effective upon posting to the Site. It is the Patient’s responsibility to keep his/her email address or telephone number current. To give electroCore notice under these Terms and Conditions, Patients must contact electroCore as follows: (i) by facsimile transmission to email@example.com; or (ii) by personal delivery, overnight courier or registered or certified mail to 200 Forge Way, Suite 205, Rockaway, NJ 07866. electroCore may update the facsimile number or address for notices to us by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by facsimile transmission or overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
- 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 these Terms and Conditions shall apply equally to both the singular and plural forms of the terms defined. The headings in these Terms and Conditions are for reference only and do not affect the interpretation of these Terms and Conditions.
- Severability. If any term or provision of these Terms and Conditions is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability does not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Waivers and Consents. 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.
- No Third-Party Beneficiaries. These Terms and Conditions do not and are not intended to confer any rights or remedies upon any person other than the applicable Patient and electroCore.
- electroCore Assignment. electroCore may assign any of its rights or delegate any of its obligations without the consent of the Patients. Patients may not assign these Terms and Conditions 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, these Terms and Conditions and all of the transactions it contemplates, including without limitation its validity, interpretation, construction, performance, and enforcement.
Capitalized terms used in these Terms and Conditions shall have the meanings set forth below or otherwise as set forth herein:
- “electroCore” means electroCore, Inc.
- “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);
- “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);
- “Personnel” means any officer, director, partner, member, shareholder, employee, agent, affiliates, associate, or other designee of electroCore;
- “Products” shall mean Purchased Products and Licensed Products.
- “Purchased Products” shall mean gammaCore Sapphire 3M Refill Kit, product lines: 10016-40302; 10016-43131; 10009-40601; 11016-40301; 11016-40305; 11016-40306; 12016-04002; 12016-04531; 12016-04593; 14016-04001; 14016-04502; 13016-04501; 13016-04502; 13016-04504 “Representatives” means affiliates, employees, officers, directors, partners, shareholders, agents, attorneys, third-party advisors, successors, and permitted assigns of electroCore or Patients as the context so implies;
- “Trademarks” means any trademark or tradename involving the names “electroCore” and “gammaCore”, 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;
- “Site” means electroCore.com/Patient-Terms-and-Conditions; and
- “Value” means the value of the Licensed Products which will not at any time be less than $1,125.00 per Licensed Product.