SIMBUS Terms of Sale

Date of Last Update: September 1, 2020

 

These terms of sale (the “Terms”) apply to all online orders accepted by Medical Technology Solutions, LLC (“MTS”) for the license of the SIMBUS Software (the “Software”) – except in the case that you and MTS have executed a written agreement that supersedes these Terms.  The Software is licensed to you, not sold, and only in accordance with the End User License Agreement (the “EULA”) located at www.medtechsolutions.com/legal.

 

Orders

We will ask you for your name, phone number, e-mail address, shipping and billing address and other information so we can fulfill your order.  When you place an order, MTS’s third-party payment service provider will collect your credit card details and charge your credit card account in connection with the order, and you agree to make all applicable payments in connection with any order placed by you.  For information on MTS’s data use practices please see MTS’s Privacy Policy located at www.medtechsolutions.com/legal.

By placing an order, you agree that: (i) any credit card information supplied by you is true and complete; and (ii) you will pay the applicable price listed, as well as any shipping and handling charges and applicable taxes.

 

Pricing and Fees

The Software is provided by MTS as a membership product which may include a setup fee and includes an ongoing monthly or annual fee.  By purchasing a membership to use the Software, you give us access to charge your credit card on file with MTS each month or each 12-month period. This monthly or annual fee will continue until cancelled.  You hereby authorize MTS to charge the initial membership payment and any recurring fees using the payment information you provide.  Access to your private dashboard and all content will continue until canceled by you or terminated by MTS.  We will take every effort to notify you via email if there are any billing issues. MTS reserves the right, in its sole discretion, to discontinue your membership and access to the Software after 3 failed attempts to collect the monthly or annual fee.

MTS reserves the right, in its sole discretion, to withdraw and/or stop the sale and/or licensing of its products and services, including, but not limited to the Software, at any time and for any reason. Prices listed through our website are stated in U.S. dollars, and do not include any shipping and handling charges or applicable taxes, unless otherwise stated.  All shipping and handling charges and taxes will be communicated to you before you place an order and you are responsible for paying such charges and taxes to MTS.  You agree to indemnify and hold MTS harmless from and against any liabilities, interest, penalties or fees assessed against MTS arising from your failure to pay any such taxes and charges.  All prices are subject to change at any time, in our sole discretion.

 

Acceptance and Fulfillment

MTS, in its sole discretion, reserves the right not to accept your order for any reason or no reason. MTS reserves the right to restrict multiple quantities of a product being sold and/or licensed to any one customer or postal address. Unless expressly agreed to in writing by MTS, neither these Terms nor any purchase order hereunder may be cancelled by a buyer.

 

Resale

All memberships of Software licenses are intended for end users only and are not authorized for resale.

 

COMPATIBILITY

You acknowledge that you have verified the compatibility of the Software with other required equipment (e.g., ensuring that your computers, mobile devices and/or operating systems are compatible with the Software).  You are solely responsible for determining the compatibility of the Software with other equipment, and you accept that lack of compatibility is not a valid claim under any warranty provided with the Software and does not otherwise constitute a basis for receiving a refund.

 

Limitations on Liability

YOU AGREE THAT OUR ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, IN LAW, IN EQUITY, OR OTHERWISE, WITH RESPECT TO ANY PRODUCTS AND SERVICES PROVIDED UNDER THESE TERMS AND THE EULA AND/OR FOR ANY BREACH OF THESE TERMS AND THE EULA IS SOLELY LIMITED TO THE AMOUNT YOU PAID FOR SUCH PRODUCTS AND SERVICES DURING THE TERM OF THE EULA.

YOU AGREE THAT MTS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE PRODUCT AND SERVICES OR FOR COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS AND SERVICES OR RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE PRODUCT AND SERVICES OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE, EVEN IF MTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

YOU FURTHER AGREE THAT MTS. SHALL NOT BE HELD LIABLE FOR ANY DAMAGES ARISING FROM, THE INTERRUPTION, SUSPENSION OR TERMINATION OF PRODUCTS AND SERVICES, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER SUCH INTERRUPTION, SUSPENSION OR TERMINATION WAS JUSTIFIED OR NOT, NEGLIGENT OR INTENTIONAL, INADVERTENT OR ADVERTENT.

 

Software License

The Software is subject to the EULA located at www.medtechsolutions.com/legal, along with any product guides, operating manuals or other documentation included with the Software, including any license terms with third parties related to third party products.  You expressly agree to be bound by EULA and any applicable third party licenses. MTS reserves all rights and licenses in and to the Software not expressly granted to you under these Terms or the EULA.

 

Governing Law and Dispute Resolution

In the event of a dispute related to or arising from our Terms and the EULA, you and MTS agree to submit to resolution by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Such arbitration shall be binding and final. However, MTS is not required to submit to arbitration any claim for unpaid fees and expenses if the amount involved is $2,000 or less.

Our Terms and the EULA is made, or to be performed, in Orange County, California, and shall be interpreted, construed and enforced in accordance with California law. In the event that any dispute arises under these Terms and the EULA, or relating to our obligations to each other, you consent to jurisdiction in Orange County, California. We both agree to waive our right to a jury trial.

You further agree that you may only resolve disputes with MTS on an individual basis and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action.  Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed under our Terms and the EULA.

 

General Provisions

The parties expressly disclaim application of the United Nations Convention on Contracts for the International Sale of Goods.

You may not assign or transfer these Terms, or any order accepted by MTS hereunder, in whole or in part, by operation of law or otherwise, without MTS’s express prior written consent.  Any attempt to do so, without MTS’s consent, will be null and of no effect. MTS may freely assign these Terms.

MTS will not be responsible for any failure or delay in its performance under these Terms due to causes beyond its reasonable control, including, but not limited to, pandemics, earthquakes, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, or acts of God.

The failure by MTS to enforce any provision of these Terms will not constitute a waiver of future enforcement of that or any other provision. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

These Terms and the EULA constitute the complete and exclusive agreement between MTS and you regarding its subject matter and supersedes all prior or contemporaneous quotations, agreements, communications or understandings, whether written or oral, relating to its subject matter.  Any waiver, modification or amendment of any provision of these Terms will be effective only if in writing and signed by duly authorized representatives of each party.

You will not export or re-export, directly or indirectly, the Software, or any technical information related thereto, or any direct products thereof, to any destination or person prohibited or restricted by the export control laws and regulations of the United States, without the prior authorization from the appropriate governmental authorities.

All notices required or permitted to be given under these Terms will be in writing and will be deemed given: (i) upon actual delivery, if made by personal service; (ii) three (3) days after mailing, if made by U.S. certified or registered mail; (iii) one (1) business day after delivery to the courier or overnight delivery service, if made by courier or overnight delivery service; and (iv) upon receipt if sent via email. All notices will be addressed to such address as the party who is to receive the notice so designates by written notice to the other.

These Terms and EULA contains the entire agreement between You and MTS related to your access and use of the Software.  Any modifications to these Terms of the EULA shall be noticed by the posting of new terms and conditions within your dashboard in the profile section. Any changes to these Terms or the EULA shall become effective thirty days after their posting. You may reject the amendments by providing written notice to MTS and terminating your access and use of the Software (without penalty).

These Terms and the EULA are agreed to and accepted by you and MTS.  IF YOU DO NOT AGREE TO ALL OF THE FOREGOING TERMS AND THE EULA, CLICK DECLINE. YOUR USE OF THE SOFTWARE CONSTITUTES YOUR AGREEMENT, FOR YOU AND YOUR COMPANY, TO BE BOUND BY THESE TERMS AND THE EULA.