This Terms and Conditions of the In-Home Trial Agreement (the “Agreement”) is by and between the customer listed in the Information Sheet of this Agreement (the “CUSTOMER”) and Ceragem International, Inc. (“CERAGEM”). This Agreement shall take effect upon CUSTOMER’s execution of the “Receipt Confirmation” portion of the Information Sheet and be in force and effect until this Agreement is expired or terminated pursuant to the terms of this Agreement.
CERAGEM hereby agrees to deliver and install the product(s) (each, the “Trial Product”) at the location(s) (each, the “Trial Location”)specified by CUSTOMER in the Information Sheet. CUSTOMER acknowledges that based on the product availabilities of CERAGEM, the Trial Product delivered and installed at the Trial Location may or may not be a new product. Notwithstanding the foregoing, however, CERAGEM hereby represents and warrants that the Trial Product shall be in good working condition and be free from any defects or malfunction at the time of delivery and installation. CUSTOMER further acknowledges and agrees that CERAGEM retains the ownership of the Trial Product at all times.
Delivery, Installation, and Removal of the Trial Product.
Upon CUSTOMER’s payment of the onetime/non-refundable Delivery and Installation Fee specified in the Information Sheet, CERAGEM shall deliver and install the Trial Product at the Trial Location. Once the Trial Product is delivered and installed by CERAGEM at the Trial Location specified in the Information Sheet, CUSTOMER shall bear the costs of removal, delivery, and installation of the Trial Product by CERAGEM in the event that CUSTOMER wishes to change the Trial Location at any time during the Term (as defined below) of this Agreement. CUSTOMER acknowledges and agrees that CUSTOMER shall not unilaterally remove the Trial Product from the Trial Location and move the same to a different location without CERAGEM’s prior consent. Upon any termination or expiration of this Agreement, the cost of removing the Trial Product from the Trial Location shall be solely borne by CERAGEM. CUSTOMER agrees to do his or her best effort to arrange for someone of eighteen years or older to be present during CERAGEM’s visits for delivery, installation and removal of the Trial Products. Multiple trips by CERAGEM to the Trial Location due to reasons attributable to CUSTOMER may result in additional Delivery and Installation Fee charged to CUSTOMER.
In-House Trial Term.
The term of this Agreement shall be for a period of TEN (10) calendar days commencing on the Trial Commencement Date and ending on the Trial Expiration Date specified in the Information Sheet (the “Term”). CUSTOMER may request early termination of this Agreement and have CERAGEM remove the Trial Product at any time prior to the expiration of the Term.
Maintenance of Trial Product.
Once the Trial Product is delivered and installed at the Trial Location by CERAGEM, CUSTOMER shall be responsible for keeping and maintaining the Trial Product during the Term of this Agreement in a good condition and state of repair, normal wear and tear excepted. CUSTOMER shall be responsible and pay CERAGEM full compensation for replacement and/or repair of the Trial Product, or any part thereof, which is not returned to CERAGEM because it is lost or stolen, or any damages to the Trial Product, or any part thereof, caused by CUSTOMER (or any user authorized by CUSTOMER) due to his or her failure to follow the product manual/instructions or other general information regarding the Trial Product provided or communicated by CERAGEM. In case of the
foregoing, CERAGEM’s invoice for the replacement or repair is conclusive as to the amount that CUSTOMER shall pay under this section for such repair or replacement. CUSTOMER hereby agrees not to analyze, disassemble and/or reverse engineer or otherwise deconstruct the Trial Product.
CUSTOMER’s Consent and Release regarding the Use of Trial Product.
By CUSTOMER’s execution of the Information Sheet, CUSTOMER, on behalf of him or herself and any user of the Trial Product authorized by CUSTOMER, does hereby consent to the use of the Trial Product at his or her own risk and further understands that (i) CUSTOMER’s use of the Trial Product is entirely voluntary and is based upon CUSTOMER’s full awareness of CUSTOMER’s responsibilities, and the benefits and the limitations of the Trial Product; (ii) CUSTOMER is free to discontinue the use of the Trial Product at any time CUSTOMER desires; (iii) every person may react or respond to the Trial Product differently depending on various factors such as pre-existing medical conditions and overall health condition; (iv) CUSTOMER is responsible for consulting with CUSTOMER’s own health care provider, especially if CUSTOMER has any contraindications against the use of the Trial product before CUSTOMER starts using the same; (v) CUSTOMER’s symptoms or conditions may fluctuate during CUSTOMER’s use of the Trial product and
that CUSTOMER is responsible for consulting with CUSTOMER’s health care provider if CUSTOMER needs to continue or discontinue the use of the Trial Products; (vi) CERAGEM and its employees and representatives are not medical professionals and that they are not responsible for the diagnosis, treatment
or overall management of CUSTOMER’s health condition; (vii) CERAGEM and its employees and representatives have not provided any medical advice or medical management of CUSTOMER’s symptoms or medical conditions; (viii) any recommendations CUSTOMER receive from CERAGEM and its
employees and representatives, including, without limitation, the use of the Trial Product and/or health and lifestyle issues are only recommendations and that they do not constitute any medical advice or management; (ix) there are no guarantees or warranties made, express or implied, made by CERAGEM or
its employees and representatives regarding the improvement of CUSTOMER’s symptoms or conditions during or after CUSTOMER’s use of the Trial Product; and (x) other than the representations and warranties contained in Section 1 above, CERAGEM does not make any warranties, express or implied, regarding the Trial Product or its use, and to the extent allowable by applicable law, disclaims any and all express or implied warranties. Accordingly, CUSTOMER HEREBY AGREES NOT TO HOLD CERAGEM, ITS EMPLOYEES, REPRESENTATIVES, SHAREHOLDERS, OFFICERS, DIRECTORS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “CERAGEM INDEMNITEES”), LIABLE FOR ANY WORSENING OF CUSTOMER’S HEALTH CONDITION DURING ORAFTER THE USE OR DISCONTINUED USE OF THE TRAIL PRODUCT, OR FOR ANY CLAIMS RELATING TO THE USE OF THE TRAIL PRODUCT. FURTHERMORE, CUSTOMER HEREBY AGREES TO INDEMNIFY AND HOLD HARMLESS THE CERAGEM INDEMNITEES FROM ANY AND ALL CLAIMS AND LIABILITIES (INCLUDING THE ATTORNEYS’ FEES) BY ANY THIRD PARTY WHO IS AUTHORIZED TO USE THE TRIAL PRODUCT BY CUSTOMER.
Collection and Use of Personal Information.
CUSTOMER hereby acknowledges and agrees that CERAGEM collects and uses certain personal information obtained from CUSTOMER. Below is a list
of brief overview as to when and how CERAGEM collects such information from CUSTOMER and uses the same. For more detailed and full notice at collection, please visit www.ceragemus.com or contact CERAGEM at firstname.lastname@example.org.
CERAGEM collects personally-identifiable information, such as name, title, company, address, email address, phone numbers, etc. when customers voluntarily provide it to CERAGEM;
CERAGEM may use CUSTOMER’s information to (a) facilitate customer service or to enable us to contact you for the purpose this Agreement; (b) to communicate marketing and advertising offers; (c) to perform research on CERAGEM users’ demographics, interests, and behavior based on the
information provided to CERAGEM when making a purchase and/or during a promotion, such as In-Home Trial program; (d) share and/or disclose information and/or aggregated user statistics to prospective business partners, advertisers, and other third parties, and for other lawful purposes;
CERAGEM may share the information CUSTOMER provides with CERAGEM’s subsidiaries, related companies, and CERAGEM’s service providers. CERAGEM does not sell CUSTOMER’s information.
This Agreement constitutes the agreement between the parties, and supersedes any earlier statement or understanding. No changes or additions to the terms of the Agreement shall be valid unless in writing and signed by both parties.
This Agreement shall be construed in accordance with and governed by the laws of the State of California without giving effect to principles of conflict of laws.
In any action or suit between the parties arising out of or relating to this Agreement, each of the parties: (a) agrees that any such action or suit shall be instituted in the state or federal courts located in the County of Los Angeles, State of California, and each party irrevocably and unconditionally
consents and submits to the jurisdiction of such state or federal court in the County of Los Angeles, State of California. Each party waives any right to demand trial by jury in any action arising out of or relating to this Agreement.
In the event of any arbitration, lawsuit, or any other legal proceedings between the parties hereto arising out of the obligations of the parties under this Agreement or concerning the meaning or interpretation of any provision contained herein, the losing party shall pay the prevailing party’s
costs and expenses of such arbitration or suit, including, without limitation, reasonable attorney’s fees.