This Terms of Sale sets forth the terms and conditions which will apply to you when you use the ABB Service to purchase any ABB products. This Terms of Sale is part of the Website Terms of Use, Privacy Policy and the Terms of Service, including all future amendments or modifications made to any of these agreements (collectively, the "Other Agreements"). Any terms not otherwise defined in this Terms of Sale will have the same meaning as defined in the Other Agreements.
By purchasing any products using the Service, you agree to be bound by this Terms of Sale and the Other Agreements.
1. Warnings and Disclaimers
(a) THESE TERMS OF SALE CONTAIN VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS AND EXCLUSIONS THAT MIGHT APPLY TO PURCHASES YOU MAKE FROM US THROUGH THE SERVICE. PLEASE READ THEM CAREFULLY.
(b) THE AGREEMENT REQUIRES YOU TO WAIVE JURY TRIALS WHEN RESOLVING DISPUTES.
(c) BY PLACING AN ORDER FOR PRODUCTS USING THE SERVICE, YOU ACCEPT AND ARE BOUND BY THESE TERMS.
(d) YOU MAY NOT ORDER OR OBTAIN PRODUCTS USING THIS SERVICE IF YOU (A) DO NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENT, (B) ARE NOT (i) AT LEAST 18 YEARS OF AGE OR (ii) OF LEGAL AGE TO FORM A BINDING CONTRACT WITH ABB, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS SERVICE OR ANY OF ITS CONTENT, GOODS OR SERVICES BY APPLICABLE LAW.
(e) These Terms of Sale apply to the purchase and sale of any Products using the Service. ABB may update or modify these terms without prior written notice at any time, in our sole discretion. The latest version of these Terms of Sale will be made available for registered Users, and you should review them before purchasing any Products using the Service. Your continued use of the Service after a posted change in these Terms of Sale will constitute your acceptance of and agreement to such changes. Notwithstanding anything herein to the contrary, if a written contract signed by Account Holder and ABB exists covering the sale and purchase of Products (a "Written Agreement"), the terms and conditions of such Written Agreement shall prevail to the extent those terms are inconsistent with these Terms.
2. Defined Terms. In addition to terms already defined, the following terms have the following meanings when used in these Terms of Sale or the Other Agreements:
"ABB Account" means the User's ABB Account (as defined under the Terms of Service) that sets forth (a) all debits issued for Products ordered by or for the account of the User and all other items for which the User is required to pay, and (b) all credits for Product returned in accordance with these Terms of Sale, rebates, discounts and other credits of which the User is entitled.
"Account Holder", "you", or "your" means the person or entity primarily responsible for the payment of the ABB Account that will be debited for an Order placed through the Site, which shall be determined by the Log-In Information used to place such Order.
"Log-In Information" means the unique username and passwords used by the User to access and use the Service and place Orders for Products.
"Manufacturer" means the manufacturer of a Product(s) and, if applicable, the seller of that Product(s) to ABB if the seller of that Product is not the manufacturer of that Product.
"Nonconforming Products" means only the following: (i) the Product shipped is different from the Product identified in the User's Order; or (ii) the Product's label or packaging incorrectly identifies its contents.
“Open Account” means an ABB Account for which Orders are placed using Account Holder’s line of credit with ABB, as described in Section 4(c) below.
"Order" means an order for Products placed via the Service in accordance with the process below.
"Products" means the various contact lens products offered by ABB from time to time via its Service. ABB may change Products offered at any time.
"Shipping Location" means one of ABB's distributions centers or the distribution center of any Manufacturer, from which Products will be shipped to the User or to the User's Order destination.
"Territory" means the continental United States and the States of Hawaii and Alaska.
3. Order Acceptance and Cancellation
(a) Your Order is an offer to buy the designated Product(s) under these Terms of Sale. Each Order to be valid must be accepted by us. Acceptance of your Order and the formation of the contract of sale between ABB and you will not take place until the Order has been submitted to ABB at the end of the check-out process. However, we are not obligated to accept an Order or sell Products under an Order to you.
(b) You can cancel your Order at any time before it has been released for fulfillment by our distribution centers by calling our helpline at 1-800-852-8089. Any cancellation requests received after fulfillment are non-cancelable.
4. Prices and Payment Terms
(a) Pricing for Products is displayed via the Service. Note that prices posted on our Website and offered via the Service are subject to change without notice. Regardless, the price charged for a Product will be the price in effect at the time the Order is submitted through the checkout process under the Service. Posted prices do not include taxes, shipping expenses or customization charges, where applicable. Any such additional charges will be line itemed on your Order total. Sometimes our offers contain mistakes, such as, the pricing offered or typographical errors, and although we try to catch these errors, we are not responsible for such errors, and we reserve the right to cancel any Orders arising from such errors.
(b) Acceptance of an Order by us occurs after we receive the payment. Payment must be submitted via the payment methods offered under the checkout process of the Service. When you submit payment information, we rely on the fact your payment information is correct, and you hereby represent and warrant that (i) all of your information is true, correct and complete, (ii) you are duly authorized to use such method of payment, (iii) charges incurred by you will be honored by your bank and/or credit card company, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any.
(c) Open Accounts. From time to time, we will permit Users to have an 'open account'. If we accept your Order on an 'open account', we will notify you of such. In that case, we will submit a statement to you for payment of any Products ordered via an Order on or about the last on Friday of the month in which the Order was placed (or if such Friday is a U.S. holiday, then the following business day). Full payment under the statement must be received by us by the 10th day of the following month. If you have met or exceeded your credit limit, your Order will be placed on hold until you make all payments due in full. You may seek to increase your credit limit by calling ABB's helpline at 1-800-852-8089. An increase to your credit limit is at ABB's absolute and sole discretion.
(d) For late payments, you shall pay interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. You shall also reimburse ABB for any costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under these Terms of Sale, the Other Agreements or at law (which ABB does not waive by the exercise of any rights hereunder), ABB shall be entitled to suspend or terminate the delivery of any Products if you fail to pay any amounts when due hereunder and such failure continues for five (5) days following written notice thereof.
(e) As security for any of Account Holder’s Open Accounts, including any Orders placed using an Open Account, together with any other obligations or liabilities of Account Holder, including, without limitation, late payments, owing to ABB under these Terms of Sale, the Other Agreements, or any Written Agreement, whether now existing or hereafter arising, due or not due, absolute or contingent, liquidated or unliquidated, direct or indirect, express or implied, and including all interest not paid when due and all expenses that Account Holder is required to pay or reimburse under these Terms of Sale, the Other Agreements, or any Written Agreement (collectively, the “Obligations”), Account Holder hereby grants to and creates in favor of ABB a security interest in all Products ordered by Account Holder, whether placed using an Open Account or not, whether now owned or hereafter acquired or arising, and wherever located, and all of the proceeds and products, whether tangible or intangible, of any of the foregoing, including proceeds of insurance or commercial tort claims covering any of the foregoing (collectively, the “Collateral”).
(f) Account Holder hereby irrevocably authorizes ABB at any time and from time to time to file, in any jurisdiction, UCC financing statements (including any amendments thereto) that cover the Collateral and that indicate the Collateral as the collateral. Account Holder also ratifies its authorization for ABB to have filed in any jurisdiction any like initial financing statements, continuations of, or amendments thereto if filed prior to the date hereof.
(g) Account Holder agrees to take any action reasonably requested by ABB to ensure the attachment, perfection and first priority of, and the ability of ABB to enforce, ABB’s security interest in any and all of the Collateral, including (i) securing ABB’s written consent prior to, in each instance, changing its name, jurisdiction of organization, principal place of residence or business, or its organizational identification number and (ii) complying with any provision of any statute, rule, regulation or treaty of any relevant jurisdiction as to any Collateral if compliance with such provision is a condition to attachment or otherwise required by applicable law, perfection or priority of, or ability of ABB to enforce, ABB’s security interest in such Collateral.
(h) Upon the occurrence and during the continuance of any default or breach by Account Holder of any of the terms of these Terms of Sale, the Other Agreement, or any Written Agreement, ABB may proceed to exercise any and all rights, powers, privileges, options and remedies possessed by ABB pursuant to the abovementioned agreements or any other document executed in connection with the Obligations or applicable law. In addition, upon the occurrence and during the continuance of any such default or breach, and upon demand by ABB, Account Holder shall assemble the Collateral and make it available to ABB at a place designated by ABB, all at the sole cost and expense of Account Holder.
5. Shipments; Delivery; Title and Risk of Loss
(a) Products will be shipped to the shipping destination indicated in your Order (which may be you or your customer), provided the shipping destination is in the Territory, FOB from our Shipping Location. Please check the individual Product page for specific delivery options. You will pay all shipping and handling charges specified during the ordering process.
(b) Title and risk of loss pass to you upon our transfer of the Products under the Order to the carrier for delivery. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.
6. Inspection and Rejection of Nonconforming Products
(a) Please inspect the Products within two (2) business days after you receive them ("Inspection Period"). You will be deemed to have accepted the Products unless you notify ABB in writing of any Nonconforming Products during the Inspection Period and provide a description of the nonconformity as required or requested by ABB.
(b) If you notify ABB of any Nonconforming Products in time, ABB shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the price for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by you in connection therewith. You must ship, at your expense and risk of loss, the Nonconforming Products to the Shipping Location designated by ABB. If ABB exercises its option to replace Nonconforming Products, ABB shall ship to you at your expense and risk of loss the replaced Products to the original delivery point after receiving your shipment of Nonconforming Products,.
(c) The above credit and refund are your exclusive remedies for the delivery of Nonconforming Products. Except for Nonconforming Products or as described elsewhere in these Terms of Sale or the other agreements, all sales of Products to you are made on a one-way basis and you have no right to return Products purchased under these Terms of Sale to ABB.
7. Discontinue Accepting Orders and Termination. ABB may discontinue accepting your Orders via the Service at any time if (a) you fail to make any payment when due hereunder and such failure continues for five (5) days after receiving notice of same; or (b) you breach any of your representations, warranties, covenants or agreements in these Terms of Sale or the Other Agreements in any material respect. If ABB discontinues accepting your Orders or if your Service is terminated for any reason, you must pay to ABB all payments due to ABB for any services, Products or materials provided prior to or after such discontinuation or termination.
8. Your Acts or Omissions. If you or your representative(s) or personnel in any way prevent, delay or impact our ability to perform, we won't be liable for any resulting delay, interruption or impact relating to the Service, including for any costs, charges or losses sustained or incurred.
9. Returns and Refunds. ABB's return policy mirrors the Manufacturers' return policies. ABB accepts the return of any Product and will provide you with a credit for the purchase price paid for such Product (not including freight) if the Manufacturer of such Product would accept the return of such Product for full credit. You are responsible for all shipping and handling charges on returned items and you bear the risk of loss during shipment. We therefore strongly recommend that you fully insure your return shipment against loss or damage and that you use a carrier that can provide you with proof of delivery for your protection. [All returns are subject to a 3% restocking fee.] Refunds are processed within approximately 5 business days of our receipt of the returned Product. Your refund will be credited back to the same payment method used to make the original purchase on the Service. WE OFFER NO REFUNDS ON ANY PRODUCTS DESIGNATED ON THIS SERVICE AS NON-RETURNABLE.
10. Conditions. You acknowledge and agree that ABB cannot sell or deliver any Product to you if you are not a qualified customer of the Manufacturer of such Product, or if ABB is no longer a qualified distributor for that Product. You will cooperate, to the extent applicable, with ABB's compliance with each Manufacturer's policies and procedures in effect from time to time. You authorize ABB to report your purchases of Products from ABB to the applicable Manufacturers to ensure the Manufacturers properly allocate sales credit to you and your sales representatives, if applicable.
11. Compliance. You hereby represent, warrant and covenant that neither you nor any of your affiliates or personnel authorized to access or use your ABB Account or who have knowledge of your Log-In Information has been debarred, excluded, or otherwise determined to be ineligible to participate in Federal Healthcare Programs or in Federal Procurement (collectively, "Ineligible"), or criminally convicted of an offense that could result in being Ineligible. If you become Ineligible, you shall notify ABB immediately and ABB may discontinue accepting your Orders immediately upon notice to you. If ABB receives notice of criminal charges or exclusions pending or proposed against you or any of your affiliates or personnel authorized to access or use your ABB Account or who have knowledge of your Log-In Information, ABB may discontinue accepting your Orders or take other appropriate steps to protect patients and state and federal program funds.
12. Warranties. The only warranties which apply to any Product are those provided directly by the Manufacturer of the Product to you. ABB MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ABB will perform its services hereunder consistent with reasonable professional standards. EXCEPT FOR THIS EXPRESS WARRANTY, ABB DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
13. Limitation of Liability. All limitations of liability and indemnification rights and obligations under the Other Agreements shall apply to this Terms of Sale and any activities related to this Terms of Sale.
14. Recalls. ABB shall promptly notify you if ABB receives any recall or safety notice for any Products purchased (each, a "Recall"). You must cooperate with and assist ABB and the Manufacturer of the recalled Products with any Recall of such Products. Your right to reimbursement for any Recall is limited to amounts that the Manufacturer pays. ABB is not obligated to make any payment or provide any remedies or redress in connection with a Recall.
15. Miscellaneous
(a) Account Security. Please keep your ABB Account and Log-In Information secret and secure. You will need your Log-In Information to access the Service and place Orders. Your Log-In Information has the same effect as your written signature and can be used to access, use and modify your ABB Account and profile information and to place Orders for Products, payment for which you are solely responsible. Anyone with knowledge of your Log-In Information can gain access to your ABB Account, make changes to your ABB Account and may place Orders for Products, for which you will be solely responsible to pay. You should only provide Log-In Information or access to your ABB Account to representatives you trust and who are authorized to access, make changes and place Orders on your behalf. If any representative or personnel who has knowledge or access to your Log-In Information ends their relationship with you or changes or no longer should have access to your ABB Account, we strongly recommend that you immediately change the Log-In Information. You are responsible for protecting your Log-In Information against improper and unauthorized use, which includes access from prior representatives or personnel. No one from ABB will be authorized to provide your Password to you, but administrators of the Service may send a password reset link via email to the email on record for you to reset your password. You are also solely responsible for restricting access to any information-processing device you use to access the Service. You are solely responsible for any and all transactions, entries or instructions initiated by or through the use of your Log-In Information, and any and all claims, losses, damages, expenses and costs incurred by the improper or unauthorized use of your Log-In Information and/or the use of your Log-In Information by others. You must notify ABB immediately if you believe that your Log-In Information has been lost or stolen, that someone has improperly accessed your ABB Account without your permission, or that the security of your Log-In Information has been compromised in any way. ABB reserves the right to reset your Password.
(b) Products Not for Export. You agree to comply with all applicable laws and regulations of the various states and of the United States in connection with your sale of the Products to consumers. You may not sell any Products for use anywhere other than in the Territory. You may sell Products only to end users of the Products and no to persons that intend to resell such Products. You may not export any Products outside the Territory. Your failure to comply with any of these restrictions will be a violation of your representations and warranties and a breach of the Agreement between you and ABB and ABB may seek any and all remedies, including refusing Orders from you and/or terminating its relationship with you.
(c) Compliance with Law. You shall comply with all applicable laws, regulations and ordinances. You shall maintain in effect all the licenses, permissions, authorizations, consents and permits that you need to carry out your obligations under these Terms of Sale and the Other Agreements and to lawfully sell the Products to consumers.
(d) No Third-Party Beneficiaries. These Terms of Sale and the Other Agreements are for the sole benefit of ABB and you and our respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms of Sale or any of the Other Agreements.
(e) Relationship of the Parties. The relationship between ABB and you is that of independent contractors. Nothing contained in these Terms of Sale or the Other Agreements shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between us, and neither ABB nor you shall have authority to contract for or bind the other in any manner whatsoever.
(f) Privacy. We respect your privacy and are committed to protecting it. Our Privacy Policy governs the accessing, handling and gathering of any sensitive data collected from you or your consumers in connection with any purchase of Products through the Service. We may use protected health information to create information that is deidentified in compliance with 45 C.F.R. § 164.514(a)-(b). We may use, disclose, market, or sell such deidentified information for any lawful purposes, without restriction, provided that the information does not include any key or other mechanisms that would enable the information to be identified.
(g) Force Majeure. We are not liable or responsible to any person and we will not be in breach of these Terms of Sale or any of the Other Agreements, for any failure or delay in our performance when and to the extent such failure or delay is arises from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
(h) Anti-Kickback. The federal anti-kickback statute, 42 U.S.C. § 1320a-7b(b), prohibits certain activities in connection with referring or arranging for business paid for by a federal healthcare program. Nothing in these Terms of Sale or the Other Agreements shall be construed as an obligation or inducement for you to recommend that health care providers or patients purchase any particular Products. Both ABB and you acknowledge that these Terms of Sale and the Other Agreements are and have been negotiated at arms-length and that the compensation paid under these Terms of Sale and the Other Agreements represents, to the best of our respective knowledge, the fair market value for the services each provides. You shall comply with the Discount Safe Harbor to the Anti-Kickback Statute, 42 C.F.R. §1001.952(h), which requires, without limitation, reporting of discounts to the government upon request and when seeking reimbursement under any governmental health care program.
(i) Survival. Those provisions of these Terms of Sale and the Other Agreements, which by their nature should apply beyond the fulfillment of any Order, will remain in force after the Order has been fulfilled including, but not limited to, the following provisions: Miscellaneous, Recalls, Limitation of Liability, and Indemnification.