ONLINE SALES AGREEMENT
By proceeding to the Online Purchase section of this Vertical Foot Alignment System Pty Ltd website (www.verticalfas.com), you agree that any and all purchases you may make are subject to the Terms and Conditions in this Agreement. The act of proceeding past this screen and the act of making any purchase each indicates your explicit acceptance of these terms. If you do not agree to be bound by these terms, you may not purchase any products from us.
This Online Sales Agreement (this "Agreement") is hereby made by and between You (the "Purchaser" and "you") and Vertical Foot Alignment System Pty Ltd, ACN 102 600 484 of 46 Sydney Street, Marrickville, NSW 2204, Australia (the "Company", "us" or "we") and becomes effective when you click the "Accept" button adjacent on the screen to this Agreement.
You hereby agree as follows:
1. GENERAL SALES CONTRACT CONDITIONS
1. 1 The purchase of any Products by you from us shall be made pursuant to the terms and conditions of this Agreement.
1.2 You acknowledge that you will be required to confirm your acceptance with the terms of purchase each time you purchase products from our website. You acknowledge that the terms of the Agreement may change from time to time and that it is your responsibility to review the agreement with each order before you click the "Accept" button.
1.3 Any descriptions, drawings, or photos of goods displayed on the www.verticalfas.com website are subject to change. We shall not be bound by any descriptions, drawings, or photos of goods displayed on the website, until such time they are confirmed by us to you in writing.
1.4 Any and all of our Products that you purchase are solely for use in the practice, business, clinic, university or organisation which is a licensed user of the Vertical Foot Alignment System (VFAS) orthotic prescription device and of which you are an authorized representative. You are explicitly forbidden to supply our Products to any third party other than a direct patient of your practice, business, clinic, university or organisation, whether for money or other consideration or for any other reason.
2. PRICES, DELIVERY, ACCEPTANCE, DAMAGED GOODS
2.1 Any and all prices and delivery times stated on our website in respect to Products offered by us for purchase are current at the time of purchase by you, but shall not be binding upon us, and are subject to change until such time as the price and delivery costs are confirmed by us to you in writing.
2.2 All prices and delivery costs stated in this Agreement are in US dollars unless otherwise noted. Any and all prices stated on our website are exclusive of all required sales tax and import and export costs. If you are a US purchaser, we assert that our Company has complied with the provisions of the US Inland Revenue Service in respect of withholding tax, that we have has completed the W8-BEN form and that you as Purchaser are not required to withhold and remit to IRS any portion of the purchase prices of our products.
2.3 Delivery times - Although we attempt to fulfil all orders within 5 working days, we do not guarantee that we have sufficient inventory of every product you may order from us. Since we use commercial carriers to deliver products to you, we cannot and do not guarantee that delivery to you will be timely. You indemnify us against any claims that may result from our inability to supply particular products or to supply within a particular timeframe.
3. CHANGES, CANCELLATIONS AND REFUNDS
3.1 If you make an error in an order you placed, we will change the composition of the order provided that (a) you email us with your preferred composition before your original order has been despatched to you from our warehouse, and (b) the total price of your order is not altered.
3.2 We do not accept cancellations or provide refunds once you have completed payment. If you feel you have made an error in placing an order, please contact us via email and we will consider your request.
3.3 You hereby agree that you shall not hold us responsible or liable for any loss caused by the cancellation of any purchase by you.
3.4 We may at our sole discretion accept emailed request for refunds of returned Product items you have purchased from us.
4.1 We will only accept orders for Products that you wish to purchase from us once you have made payment for the Products. We do not offer any credit facility.
4.2 All payments shall be in US Dollars unless specified.
4.3 We accept payment only via Paypal accounts or credit cards processed by the Paypal gateway. We do not accept payment by way of cash, certified check, or bank transfers.
5. LOSS OF OR DAMAGE TO PRODUCTS
5.1 The Products you purchase from us shall be shipped to you by whichever carrier or other shipping means we select. You must sign to accept delivery of your order.
5.2 Risk of loss of Products in transit is carried by us until such time as you sign to accept delivery.
5.3 It is your responsibility to examine the Products to confirm they are in good condition. You shall have three (3) days following receipt of the Products to notify us of any deficiency in the Products. If you do not provide notice of any fault in the products within the three (3) day period, the Products shall be deemed to be in good condition and accepted by you as such.
5.4 In the event that the purchased Products you receive are damaged, and that you so notify us within three (3) days of receipt, you may return them to us, unused and in their original packaging, within five (5) days of their receipt. We will replace Products returned to us that are clearly damaged. We will credit your account for the reasonable price of postage of the Products you returned to us.
6. LIMITED REPLACEMENT GUARANTEE
6.1 We offer a Limited Replacement Guarantee for the Products once you have customised them for your patients.
6.2 We will replace any Product we have supplied to you if, within 3 months of the date of delivery:
(a) the product splits, or
(b) the layers of the template become unstuck, or
(c) some other fault appears which we in our sole discretion acknowledge as a fault.
6.3 This Limited Replacement Guarantee excludes reasonable wear and tear expected with any orthotics and specifically does not apply to any of the following:
Loss of shape – this may occur with heavier patients and we recommend for such patients you add EVA filler to the base surface of the orthotic templates to provide extra strength.
Discoloration of the top cover of the orthotic.
6.4 If you wish to make a claim for replacement under this Limited Replacement Guarantee you agree to follow the steps outlined in Appendix A of this Agreement.
6.5 In the event of any failure of the Products whatsoever, our sole liability and your sole and exclusive remedy will be for us to refund or replace the Products at our expense.
6.6 This Limited Replacement Guarantee does not exclude any consumer guarantees you have by law.
7. DISCLAIMER AND NON-LIABILITY
7.1 You acknowledge that we make no representations or warranties in respect to the information on our website being accurate or up-to-date. You acknowledge that all information on our website is provided on an "as is" basis, without any implied or express warranties.
7.2 THE PRODUCTS ARE PROVIDED ON AN "AS IS" BASIS TO YOU. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 6 ABOVE, WE MAKE NO REPRESENTATIONS, WARRANTIES, CONDITIONS, OR GUARANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, ORAL OR WRITTEN, REGARDING THE PRODUCTS OR THIS AGREEMENT. WE DO NOT WARRANT THAT THE PRODUCTS WILL OPERATE UNINTERRUPTED OR ERROR-FREE OR THAT THEY WILL MEET EVERY ORGANIZATION'S NEEDS. WE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. PURCHASER ASSUMES SOLE AND EXCLUSIVE RESPONSIBILITY FOR THE USE OF THE PRODUCTS.
7.3 You acknowledge that you, not the Company, are solely responsible for:
determining your patients' conditions, pre-existing or otherwise,
determining whether orthotics are appropriate for your patients,
deciding whether you will use our Products for any particular patient,
selecting which product from our Product range is appropriate for your patient,
correctly following the procedures as outlined in our training materials,
judging the appropriate amount of adjustment required for your patient,
correctly heating, molding and cooling the Product,
deciding whether to make any adjustments to the Product, and
providing instructions to your patient on their usage of the completed orthotics.
7.4 You acknowledge that in the event that your patient is dissatisfied with the orthotics you produce, or feels discomfort, pain, injury or any ailment subsequent upon your provision of our Products to them, we have no way of determining whether there is any causal relationship between their condition and your use of our Products.
7.5 For these reasons we specifically disclaim any and all responsibility and liability for any claim any of your patients or any other party may make against you, our Products, our Company, our staff, or any of our agents, suppliers, importers, advisors, officers whatsoever.
8.1 You indemnify, defend, and hold Company and its officers, directors, employees, independent contractors, suppliers, importers, representatives and agents harmless for any loss, liability, damage, or expense (including reasonable attorneys' fees) arising from (a) claim of bodily injury by a third party including any patient of yours as a result of the use of the Products; (b) any acts or omissions of you or any other person using the Products we supplied to you; or (c) any tortious acts or acts of disparagement by you or any officer, director, employee, independent contractor, supplier, importer, representative, patient or agent against Company or the Products. In any such case, Company shall promptly notify you in writing of the claim, provide you sole control of the defense and settlement; and provide all reasonable assistance requested by you in the defense and settlement of the claim.
9. TRADEMARKS, INTELLECTUAL PROPERTY
9.1 For the avoidance of doubt, Company shall retain all right, title, and interest in the intellectual property rights in the Products, including but not limited to any and all patents, copyrights, trademarks, and trade secrets.
9.2 You acknowledge our trademarks in the names Vertical Foot Alignment System, VFAS, Foot Alignment System, Foot Aligners and Foot Aligner.
9.3 You agree that you shall not, or knowingly allow others to, reverse engineer, decompile, disassemble, modify, adapt, create derivative works from or otherwise attempt to duplicate the Products or the Vertical Foot Alignment System in any manner.
9.4 You may not sell, rent or otherwise make available our Products to any parties other than your patients, or, if you are a teaching institution, to students for the purposes of demonstrating the Vertical Foot Alignment technique and allowing students to practice the technique.
9.5 You acknowledge the Products are sold for your use only in conjunction with the Vertical Foot Alignment System which you have rented from us. Use of the Products with any other orthotic prescription method is not permitted. Similarly, you acknowledge that use of the Vertical Foot Alignment System with orthotic products other than those Products available from us is not permitted.
9.6 You acknowledge that the Products and their pricing are designed for use in conjunction with the VFAS device and that you are not permitted to use any orthotic templates in conjunction with the VFAS other than the Products you purchase from us. You recognise that the combination of design, specifications, materials, manufacturing present in the VFAS and orthotic templates represents intellectual property owned by us and that any attempt to use third party products in conjunction with our Products is theft of and damage to our intellectual property. You acknowledge that if you violate this provision or facilitate other parties to undermine this agreement may give rise to us seeking damages from you and that if you aid or facilitate other parties to undermine this provision, the damages.
9.7 You agree that you shall keep confidential both your User Name and Password for our website and you indemnify us for any claim arising from use of your User Name and Password by someone other than you.
10. CONSEQUENTIAL DAMAGES; LIMITATION OF LIABILITY
10.1 TO THE EXTENT PERMITTED BY LAW, NEITHER COMPANY NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AND REPRESENTATIVES SHALL BE LIABLE TO PURCHASER FOR ANY CONSEQUENTIAL, PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF GOODWILL OR BUSINESS REPUTATION, COST OF PROCUREMENT OR REPLACEMENT GOODS AND SERVICES, COVER, RELIANCE DAMAGES, OR ANY OTHER TANGIBLE LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INFRINGEMENT OF INTELLECTUAL PROPERTY, OR OTHERWISE, AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. EACH PARTY AGREES THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. Company's total aggregate liability to Purchaser from all causes of action and under all theories of liability will be limited to and will not exceed the total amount of all Product Purchase fees paid by Purchaser for the Purchase Order from which the claim arose. This limitation will apply notwithstanding the failure of the essential purpose of any remedy hereunder.
11. DISPUTE RESOLUTION
11.1 All disputes arising under this Agreement that cannot be resolved by Purchaser and Company shall be submitted to arbitration under the rules and regulations of the laws of the governing jurisdiction. Either Purchaser or Company may invoke this paragraph after providing thirty (30) days' written notice to the other party. All costs of arbitration shall be divided equally between the parties. Any award may be enforced by a court of law of competent jurisdiction.
12. GENERAL PROVISIONS
12.1 This Agreement constitutes the entire agreement between you and Company in respect of the Products. This Agreement is entered into on the basis that you have also entered an Agreement with us in regards to use of the VFAS device.
12.2 This Agreement may be modified or amended, if the amendment is made in writing and is signed by both parties.
12.3 This agreement provides specific disclaimers, limitations of liability, indemnities and protections of our rights. While there is no specific provision for termination of this agreement, clause 1.4 and clauses 7 to 10 shall survive any purported termination or actual termination imposed by a court with relevant jurisdiction or by a competent authority.
12.4 If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but, by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
12.5 The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement.
12.6 This Agreement shall be governed by the laws of the State of New South Wales, Australia.
This Agreement becomes effective at the date and time on which you click the "Accept" button.
APPENDIX: RETURNING DAMAGED PRODUCTS UNDER THE LIMITED REPLACEMENT GUARANTEE
If a Product supplied by us to you develops a fault within 3 months of delivery, we will replace it under the following process:
1. Please email a photo of the defective product to us.
2. In the email provide include the following information:
(a) the date you purchased the Product from us
(b) the date you used the Product to create an orthotic
(c) advise whether the Product was used by you or a staff member who has completed all VFAS training
(d) the patient's approximate height, weight and age
(e) the nature of the patient's condition
(f) the primary adjustment you made in customizing the template for the patient
(g) any alterations you made to the orthotic (eg use of shell fill, deflections or domes)
(h) any other information you feel relevant
Our purpose in asking you to provide this information is firstly to confirm the fault and secondly to understand potential causes so we may improve the quality of the Products and training.
3. We may ask you to send us the orthotic itself (at our cost).
The free replacement Product will be included in the next order we ship to you.