Effective Date: November 1, 2021
THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS, THAT SHALL APPLY TO YOU AND YOUR PURCHASE OF AND THE SALE OF PRODUCTS AND SERVICES BY Wiscmed®, LLC (“WISCMED®”), INCLUDING ANY ONLINE ORDERS PLACED THROUGH https://www.wiscmed.com/ (THE “SITE”). BY PLACING AN ORDER FOR PRODUCTS OR SERVICES, YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS. As used below, “we,” “us” and “our” refer to WiscMed, the seller. “You” and “your” refer to you, the buyer.
SECTION A: General Terms
- Order Acceptance and Cancellation. Our sale of products and services to you is expressly conditioned on your assent to the Agreement. You agree that your order is an offer to buy all products and services listed in your order. All orders must be accepted by us or we will not be obligated to sell the products or services to you. We may choose not to accept any orders in our sole discretion. After having received your order, we will send you an Order Confirmation e-mail with your order number and details of the items you have ordered. Such email shall not be deemed to be an acceptance and we reserve the right to reject orders at our sole discretion. Acceptance of your order will not take place unless and until we have shipped out your order.
- Prices, Taxes. All prices, discounts, and promotions related to the products and services (whether posted on the Site or otherwise) are subject to change without notice. The price charged for a product or service will be the price in effect at the time the order is placed and will be set out in your Order Confirmation. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your order total and will be itemized in in your Order Confirmation. We are not responsible for pricing, typographical or other errors in any offer by us and we reserve the right to cancel any orders arising from such errors.
- Payment. Terms of payment are within our sole discretion, and unless you are purchasing the WisprMonthly® Package set forth in Section B below, payment must be received by us before our acceptance of an order. If you are purchasing the WisprMonthly® Package, please see Section B below for additional terms and conditions that apply to you. We accept certain credit cards and ACH, as set forth in the ordering process. You represent and warrant that (a) the credit card/ACH information you supply to us is true, correct and complete, (b) you are duly authorized to use such credit card/ACH for the purchase, (c) charges incurred by you will be honored by your credit card company or banking institution, and (d) you will pay charges incurred by you, including all applicable taxes, if any, for the duration of the agreement. All prices and payments shall be in US Dollars.
- Shipments; Delivery; Title and Risk of Loss. We will arrange for shipment of the products to you. Please check for specific delivery options during checkout. We retain title to the products until fully paid for by you. Risk of loss passes to you upon delivery. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments or deliveries.
- Returns and Refunds. We will accept a return of the products for a refund of your paid purchase price, less the original shipping and handling costs, provided such return is made within 30 days of your order and provided such products are returned undamaged and substantially in their original condition. To make a return, you must call 608-729-7234, option #1, live chat with one of our agents by clicking the Support icon on the Site, or e-mail our Support Department at email@example.com, to obtain a Return Merchandise Authorization (“RMA”) number before shipping your product. No returns of any type will be accepted without an RMA number.
- Warranty and Disclaimers. The only warranties on the products and services are set forth on our Site at https://wiscmed.zendesk.com/hc/en-us/articles/360037927893-WiscMed-Warranty. You hereby acknowledge that the Wispr® Digital Otoscope is designed for use solely with the speculums that are provided by or sold by us, and you agree to only use such speculums that are provided by or sold by us with the Wispr® Digital Otoscope. Use of any speculums not provided by or sold by us with the Wispr® Digital Otoscope shall void its warranty. WE EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Limitation of Liability. UNDER NO CIRCUMSTANCES WILL WE BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY LOSS OF PRODUCTION, WORK, DATA, USE, BUSINESS, GOODWILL, REPUTATION, REVENUE OR PROFIT, ANY DIMINUTION IN VALUE, COSTS OF REPLACEMENT PRODUCTS OR SERVICES, OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OR LOSSES, WHETHER DIRECT OR INDIRECT. OUR TOTAL LIABILITY WILL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL AMOUNT PAID BY YOU FOR THE PRODUCTS OR SERVICES THAT YOU HAVE PURCHASED FROM US. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU ASSUME ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY PRODUCT OR SERVICE, WHETHER IN TERMS OF GENERAL EFFECTIVENESS, SUCCESS OR FAILURE (INCLUDING, WITHOUT LIMITATION, ANY TREATMENT OF PATIENTS), AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY US, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE PRODUCTS AND SERVICES.
- You agree to defend, indemnify and hold WiscMed®, its employees, members, officers, directors, affiliates, agents, successors, and assigns harmless from and against any and all liabilities, claims, costs, expenses, fees, losses or damages of any nature whatsoever (including reasonable attorneys’ fees), arising out of or related to your acts or omissions with respect to your use of our products and services (including, without limitation, treatment of patients).
- Intellectual Property. WiscMed® and its licensors are and will remain the sole and exclusive owners of all intellectual property rights in and to each product and service made available by WiscMed® and any related software, applications, specifications, instructions, documentation or other materials, including, but not limited to, all related copyrights, patents, and trademarks and other intellectual property or proprietary rights. You do not and will not have or acquire any ownership of these intellectual property rights in or to the products or services made available by WiscMed, or of any intellectual property rights relating to those products or services.
- Products Not for Resale or Export. You agree to comply with all applicable laws and regulations of the various states and of the United States including all Export Regulations, as defined below, and shall not cause WiscMed® to be in violation of any applicable export or economic sanctions laws or be penalized by any governmental body or authority. You represent and warrant that you are buying products or services from us for business use purposes only, and not personal, family, or household use, and not for resale or export. Products and services purchased from WiscMed® may be controlled for export purposes by export regulations, including but not limited to, the Export Administration Act of 1979 (50 U.S.C. 2401-2410), the Export Administration Regulations promulgated thereunder (15 C.F.R. 768-799), and its successor and supplemental regulations (collectively, “Export Regulations”).
- General. All matters arising out of or relating to the Agreement are governed by the laws of the State of Wisconsin, without giving effect to any choice or conflict of law provision or rule. The parties agree that any action brought under or in relation to this Agreement shall be brought exclusively in, and each party agrees to and does hereby submit to the exclusive jurisdiction and venue of any state or federal court located in Dane County, Wisconsin. EACH PARTY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW THE RIGHT TO A TRIAL BY JURY. You will not assign any of your rights or delegate any of your obligations under the Agreement without our prior written consent. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves you of any of your obligations under the Agreement. The Agreement does not and is not intended to confer any rights or remedies upon any person other than you. The failure by us to enforce any right or provision of the Agreement will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by our duly authorized representative. We may provide any notice to you under the Agreement at any time by sending a message to the email address you provide us, which will be effective when we send the email. It is your responsibility to keep your email address current. If any provision of the Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such determination will not impair or affect the validity, legality or enforceability of the remaining provisions hereof, and each provision is hereby declared to be separate, severable and distinct. To the extent that any such provision is found to be invalid, illegal or unenforceable, the parties hereto will act in good faith to substitute for such provision, to the extent possible, a new provision with content and purpose as close as possible to the provision so determined to be invalid, illegal or unenforceable.
SECTION B: WISPRMONTHLY® PACKAGE
In the event you purchase the WisprMonthly® Package (“Package”), the following additional terms and conditions shall apply to you:
- WisprMonthly® Package. The WisprMonthly® Package consists of:
- one (1) WisMed® Wispr® Digital Otoscope (including applicable software updates at no additional charge for the duration of the Contract Term (defined below),
- one (1) Welch Allyn 71000-A battery handle,
- a premium carrying case, and
- a 96 Speculum starter pack. The 96 speculum starter pack is one-time, not monthly. You are responsible for the purchase of speculum after use of the starter pack speculum. Only WiscMed® speculum may be used with Wispr® digital otoscope.
In addition, all purchasers of the WisprMonthly® Package will also receive WisprCare® (defined below in Section C) for the duration of the Contract Term.
- 30 Day Risk-Free Trial. You have a 30-day risk free trial of the Package from the date of order (“30 Day Trial”). Shipment to the delivery address after order is generally less than 5 business days, but not guaranteed. Within the 30 Day Trial, if you are not fully satisfied with the Package, simply return the Package back to us pursuant to Section A(6) (Returns and Refunds) above. Your contract will be cancelled upon our receipt of the WisprMonthly® Package. There may be additional fees if any products are returned damaged or not substantially in their original condition.
- Payment and Billing. Starting the day after the 30 Day Trial ends (“Billing Date”), you agree to make the following payments to us for the Package:
|WisprMonthly® Fee||Contract Term|
|$76.50 per month||30 months starting on the Billing Date|
There is no initial deposit required. By ordering the WisprMonthly® Package, you hereby authorize us to pre-authorize your credit card for the first Monthly Fee. All payments shall be made by credit card or ACH, as designated during the ordering process. Your first payment shall be due on the Billing Date, and each month thereafter for the Contract Term. Unless earlier cancelled in accordance with Section B(5) (Cancellation) below, you hereby authorize us to charge your credit card or deduct from your bank account through ACH (as applicable) the Monthly Fee on the Billing Date and each subsequent month of the Contract Term.
- Completion of Contract Term. Upon completion of the Contract Term, and payment in full of all Monthly Fees of the Contract Term, you shall own the WisprMonthly® Package. You will no longer be covered by WisprCare® but can separately purchase WisprCare® coverage in accordance with our then current fee schedule for WisprCare®.
- You may cancel your WisprMonthly® Package at any time during the contract Term. If you want to cancel your WisprMonthly® Package, simply return the Package back to us pursuant to Section A(6) (Returns and Refunds) above. Your contract will be cancelled (and if applicable, you will receive a refund of the prorated portion of the applicable Monthly Fee for the then current month) upon our receipt of the returned package. There may be additional fees if products are returned damaged or not substantially in their original condition. For avoidance of doubt, you will continue to be charged the Monthly Fee until we receive the WisprMonthly® Package. No refunds are given for payments made prior to the cancellation of the package. By way of illustration, if you cancel after 5 months, you will be required to return the WisprMonthly® package to terminate the contract and no refund or credits will be given for any payments made.
- We may cancel your Package upon notice to you if (i) your credit card cannot be charged or ACH cannot be processed for any reason for amounts due (and you have not otherwise made the appropriate payment by the due date of any applicable renewal date); or (ii) if you breach any of the terms and conditions of the Agreement. In the event your WisprMonthly® Package is cancelled by us pursuant to this Section B(5)(b), you shall promptly return the Package to us. No refunds are given for payments prior to cancellation of the contract.
SECTION C: WISPRCARE®
This Section C governs the accidental damage protection services provided by WiscMed regarding your purchase or contract to Covered Products (defined below) (“WisprCare®” or “Plan”). In the event you purchase or subscribe to the Plan (including through the Package), the following additional terms and conditions shall apply to you:
- Plan Products. The Plan covers the following WiscMed products (“Covered Products”):
- Wispr® Digital Otoscope, and
- Welch Allyn 71000-A battery handle (if purchased from WiscMed pursuant to the Package).
- Plan and Term. Coverage begins when you purchase or subscribe to the Plan, unless cancelled in accordance with Section C(3) below, for the period of time specified in your Order Confirmation (“Plan Term”). During the Plan Term, we will repair or replace the Covered Products to be in a refurbished and “like-new” condition in accordance with the following:
|Covered Product||Coverage and Deductible|
Wispr® Digital Otoscope
|· Up to two (2) valid Claims (defined below) in each 12 month period (starting on your original purchase or contract date of the Plan). Each such Claim is subject to a $99 deductible. “Claim” means that a Covered Product has failed due to accidental damage resulting from an unexpected or unintentional external event (such as, drops and damage caused by liquid contact).
· In the event you have more than two (2) valid Claims in an applicable twelve (12) month period, each such additional Claim will be subject to a deductible of $329 each.
· Notwithstanding anything to the contrary in the Agreement, the Plan does NOT cover, and we will NOT repair or replace the Covered Products any Claim arising from or relating to use of any speculum that was not supplied by or purchased from us.
|Welch Allyn® 71000-A battery handle||· Up to two (2) valid Claims in each 12 month period (starting on your original purchase or contract date of the Plan). Each such Claim is subject to a $49 deductible.|
Any unused Claims in an applicable twelve-month period shall expire and may not be carried over, and your Claims will reset for the next twelve (12) month period of continued coverage (if applicable). To submit a Claim, please contact us at[608-729-7234, option #1, live chat with one of our agents by clicking the Support icon on the Site, or e-mail our Support Department at firstname.lastname@example.org. We will provide a return shipping label and pay standard, ground shipping to and from your address in the United States for all valid Claims.
- If you have the Plan pursuant to a Package, your Plan will terminate upon the competition or termination of the Package contract Term.
- If you purchased the Plan separately from the WisprMonthly® Package, you may cancel the Plan at any time by contacting our support team. You will receive a pro-rata refund of your pre-paid purchase price of the Plan (based on the percentage of the unexpired portion of your Plan Term), less the value of any benefits provided to you under the Plan for such Plan Term. By way of example, if you have filed a valid Claim and received a repair or replacement for a Covered Product prior to cancelling the Plan, the value of such repair or replacement shall be deducted from any pro-rated refund for such Plan Term.
- We may cancel your Plan upon notice to you: (i) if your credit card cannot be charged or ACH cannot be processed for any reason for amounts due (and you have not otherwise made the appropriate payment by the due date of any applicable renewal date), in which your Plan will cease from such applicable due date or renewal date; or (ii) for your fraud or material misrepresentation.
- We may also cancel your Plan for any reason whatsoever upon 10 days’ notice to you. In the event we cancel your Plan pursuant to this Section C(3)(d), if applicable, you will receive a pro-rata refund as set forth in Section C(3)(b)
- Changes. We may, at any time, revise any of the terms and conditions of the Plan including the price and applicable service fees, upon sixty (60) days’ notice to you (“Notice Period”). Such notice will be provided in a separate writing or email, or by other reasonable method. If you do not agree to the revised Plan terms and conditions, you may cancel the Plan without penalty in accordance with Section C(3)(b) If you do not cancel the Plan within the Notice Period, your continued payment of charges (if applicable) or request for service under the Plan after receiving notice of a change in your Plan terms and conditions, including with respect to a change in price or service fees, will be deemed consent by you to be bound by such revised Plan terms and conditions. In any event, you may cancel the Plan at any time in accordance with Section C(3) (Cancellation) above.