Terms and conditions
BAM Medical Ltd, dba Liper (“Liper” or “us”, “our”, “we”) designed and manufactures the TongueGym, an innovative tongue exercises product (the “Product”) the first product created for at-home tongue exercises. You may order Products through this website via a designated Purchase Order (the “Purchase Order”). Any customer listed in the Purchase Order shall be referred to as a “Customer” and any of Customer’s personnel or Customer’s affiliates’ personnel who are specifically authorized will be referred to as “Representatives”.
- Prices, Purchase Orders and Delivery.
- Purchase Orders will specify the Products ordered, requested quantities, delivery dates, prices as agreed in this Agreement, and such other details as Liper may reasonably request. Unless otherwise advised by Liper, delivery and return of Products ordered pursuant to an Accepted Order (as defined below) shall be subject to the Liper’s Shipping and Returns Policy which may be found here: shipping-terms (the “Shipping and Return Policy”). All Purchase Orders placed hereunder will be subject to the approval or rejection of Liper, such approval or rejection to be communicated to Customer by electronic means within 5 business days. Where Liper approves a Purchase Order, it will be deemed to be an “Accepted Order”. In the event of a conflict between the provisions of these Terms and the terms and conditions of any Purchase Order, the terms of these Terms will govern, and no changed or additional terms or conditions from such Purchase Orders, order acknowledgement or other written communication will have any effect unless agreed in writing by the parties.
- The Products will be delivered Ex Works (Incoterms 2020) to the designated shipment location of Customer. For the sake of clarification: we will not be responsible for any local customs charges, import taxes or duties or any similar charges related to your shipments. You must figure out whether any of these charges will become due and arrange for their payment.
- In the event that Customer does not initiate a return process according to the Shipping and Return Policy, the relevant Products will be deemed accepted by Customer. THE ARRANGEMENTS SPECIFIED IN THE SHIPPING AND RETURN POLICY SHALL BE CUSTOMER’S SOLE REMEDY IN THE EVENT OF NON-CONFORMITY WITH AN ACCEPTED ORDER. In all events, Products that are to be returned to Liper per the Shipping and Return Policy, must be returned in their original packaging, unused, free of damage (other than damage caused prior to Delivery), in a factory-shipped and merchantable condition. All Products returned will be shipped to the location designated by Liper in writing.
- Fees and Payment
In consideration for the Products and rights granted thereto, Customer shall pay Liper the fees listed in the applicable Purchase Order (the “Fees”) as condition to shipment of any Product. Except to the extent set forth otherwise in the Purchase Order, amounts due hereunder do not include VAT (except for an individual’ order of Products to EU jurisdiction involving Fees of under 150 Euro in aggregate) and other taxes, and Customer shall make payment in respect of such taxes in addition to other amounts due hereunder.
Customer shall not, and shall not allow any Representative or third party to (a) rent, lease, modify, copy, loan, transfer, sublicense, distribute or create derivative works of the Products; (b) disassemble or reverse engineer the Products; (b) modify or manipulate the Products in any way; (c) use, market or advertise the Products except as expressly permitted by Liper hereunder; (e) remove or obscure any copyright or other notices from the Products; (f) circumvent any security mechanisms of the Website; (g) use the Website to transmit or distribute any unsolicited or unauthorised advertising, marketing or promotional material or other form of solicitation (spam); (g) use the Website to transmit or distribute any virus and/or other code that has contaminating or destructive elements; (h) otherwise engage in any unlawful activity; and/or (i) attempt to override or circumvent any of the usage rules embedded into the Website. Customer shall inform Liper in writing in each instance prior to engaging in such activities. Customer shall inform Liper if it has reason to believe any end user or customer is engaging in any of the foregoing prohibited activities.
- Website Use.
We have made and will continue to make efforts to include accurate and up-to-date information on this Website. However, we cannot guarantee that the information posted on this Website is accurate, complete or suitable for any purpose. All the information and content posted on the Website are provided for informational purposes only and on an “as is” and “as available” basis without any warranty or condition, express, implied or statutory. The content of this Website contains general information and may not reflect current developments. Such content is designed only to give general information. In addition, we cannot guarantee that the content posted on this Website has not been affected by technical malfunctions or unauthorized tampering or that material on this Website will be free from infection, viruses, worms, Trojan horses and/or other code that has contaminating or destructive properties. Liper does not warrant that use of the Website will be uninterrupted, timely, secure, or error-free. It is your responsibility to take protective steps such as virus checking. We may alter or remove materials from this Website at any time.
We are not a health care provider. The content of this Website is not intended to be – and cannot serve as – a substitute for professional medical advice, diagnosis, or treatment. You should always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition or any health-related questions.
- This section applies to any person or entity who purchases our products and resells them whether or not authorized (a “Reseller”).
- Restrictions: Subject to the terms and conditions of the Agreement, Liper hereby grants to Reseller a non-exclusive, non-transferable right to resell the Products solely to purchasers located in the territory of the country designated by Reseller for delivery of Products as part of a Purchase Order.
- Resell Prices: Products may not be resold at prices lower than the recommended retail price per unit or quantity prices according to the prices advertised on the Website.
- Audit: Any Reseller will keep accurate records of the particulars of any resale of the products as well as the name, address and other contact information of each purchasers to whom the Products are sold. A Reseller will make such records available to Liper, upon its reasonable request. The section shall survive termination of this Agreement for any reason for a period of 3 years.
- Indemnification: Reseller will promptly indemnify, hold harmless and, at the option of Liper, defend Liper (and its affiliates, employees, officers, directors, partners and agents) from and against any and all third party allegations asserted in any claim, action, lawsuit, investigation or proceeding (including reasonable legal fees), whether actual or alleged, arising out of or related in any way to (a) Reseller’s reselling of the Products not in compliance with the terms and/or by providing warranties or undertakings exceeding those explicitly set out herein or in any separate documentation provided by Liper; (b) failure to maintain and operate the Products only in accordance with Liper’s labeling, instructions for use, and operating manual and notices relative to the Products, which Liper’s has or may in the future provided to Customer, (c) any alterations or modifications to the Products, including removal, concealment or modifications to any notices or legends placed the Products. Reseller may participate in the defense of any such claim with counsel of its own choice.
- Identification Obligations: Sales agents of all types (as described in the title of this section) are obligated to provide the minimum identification information on the product’s package.
The identification data shall include the contact information of the agent, so that it can be easily identified and contacted, this including but not limited to the name and address of the agent and where applicable a website. The particulars may be abbreviated using the relevant space on the package to stamp or apply a sticker with the relevant information.
- Safety Obligations:
- Within the limits of their respective activities, the above-mentioned resellers shall provide any their buyer with the relevant information to enable them to assess the risks inherent in a product throughout the normal or reasonably foreseeable period of its use, where such risks are not immediately obvious without adequate warnings, and to take precautions against those risks.
- Within the limits of their respective activities, resellers shall adopt measures commensurate with the characteristics of our products which they supply, enabling them to: (i) be informed of risks which these products might pose; (ii) inform the manufacture in order to initiate the appropriate internal investigation; (iii) choose to take appropriate action including, if necessary to avoid these risks, withdrawal from the market, adequately and effectively warning consumers or recall from consumers. These actions shall be undertaken on a voluntary basis or at the request of the competent authorities.
- Resellers shall act with due care to help to ensure compliance with the applicable safety requirements, in particular by not supplying products which they know or should have presumed, on the basis of the information in their possession and as professionals, do not comply with those requirements.
- Resellers, within the limits of their respective activities, shall participate in monitoring the safety of products placed on the market, especially by passing on information on product risks, keeping and providing the documentation necessary for tracing the origin of products, and cooperating in the action taken by producer and competent authorities to avoid the risks.
- If Resellers know or ought to know, on the basis of the information in their possession and as professionals, that a product that they have placed on the market poses risks to the buyers that are incompatible with the general safety requirement, they shall immediately inform the competent authorities of the Member States giving details of action taken to prevent risk to the consumer.
- Resellers shall, within the limits of their respective activities, cooperate with the competent authorities, at the request of the latter, on action taken to avoid the risks posed by products which they supply or have supplied.
- Title to the Product passes to Customer upon Customer’s full payment of their associated Fees.
- Liper does not grant to Customer any express or implied intellectual property or other rights in or to the Products or in any methods of making or using the Products, except for the right to use the Products as outlined herein. All such rights shall vest exclusively with Liper or its licensors, and nothing contained herein will, or is deemed to, convey any claim, title or ownership interest therein to Customer or its affiliates or their personnel. Customer agrees to respect all confidentiality, copyright, trademark notices or legends placed on the Products, including all enhancements, improvements and modifications thereof, and all right, title and interest in and to Products, as well as all intellectual property rights in all of the foregoing. Should the Customer and/or any Representatives provide Liper with any feedback regarding the Products and/or Website, Liper may use all such feedback without restriction and shall not be subject to any non-use obligations in respect of such feedback. Customer agrees to respect all confidentiality notices or legends placed on the Products and not to conceal from view any copyright, trademark or confidentiality notices placed on the Products.
Liper hereby represents and warrants to Customer as follows:
- The Products have been designed, manufactured, labeled, packaged and sold by Liper in a manner consistent with good commercial practice and FDA Low Risk General Wellness Products and the General Product Safety Directive (GPSD). Aside from the foregoing, Customer shall be responsible for all local country regulatory compliance for use and certification for the Products in the local jurisdiction and Liper will have no responsibility in that regard.
- To the best of its knowledge, the Products do not infringe the intellectual property rights of any third party.
- Except as expressly set forth herein, the Solution is provided “As-Is” and Liper disclaims all implied and statutory warranties in respect of the Products and WEBSITE including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose or non-infringement. IN PARTICULAR, THE EFFICACY OF THE PRODUCTS DEPENDS ON MANY FACTORS OUTSIDE THE CONTROL OF LIPER, AND LIPER CANNOT THEREFORE GUARANTEE THE SUCCESS OF ANY TREATMENT APPLICATION. WE MOREOVER RECOMMEND THAT IF YOU OR SOMEONE ON YOUR BEHALF REQUIRE TONGUE EXERCISES, THAT YOU CONSULT WITH A MEDICAL PROFESSIONAL OR ANY CAREGIVER SPECIALIST ABOUT THE SPECIFIC EXERCISE REGIMEN RECOMMENDED FOR YOU.
- Representations by the Customer.
The Customer represents and warrants to the Company that: (i) the execution, delivery and performance of this Agreement will not result in the breach or violation of any law or regulation applicable to it or any contract or commitment by which it is bound; and (ii) it is not required to obtain any permit, authorization, license or consent from any person or entity (including any governmental authorities) in connection with the execution and delivery of this Agreement or the consummation or performance of any of the transactions contemplated hereunder.
Either party (“Disclosing Party“) may disclose to the other party (“Receiving Party“) certain confidential or proprietary information of the Disclosing Party (“Confidential Information“). The Receiving Party agrees to keep confidential and not disclose or use any Confidential Information except in order to comply with its obligations in the Agreement, and all subject to applicable law. Confidential Information shall not include information that the Receiving Party can show: (a) was already lawfully known to the Receiving Party, (b) was independently developed by the Receiving Party without access to or use of Confidential Information, (c) was received from any third party without restrictions, (d) is publicly and generally available, free of confidentiality restrictions, or (e) is required to be disclosed by court order or law, provided that the Receiving Party provides the Disclosing Party with prompt notice of such requirement and cooperates (at the expense of the Disclosing Party) in order to minimize such requirement, to the fullest extent permitted by such order or applicable law. The Receiving Party shall restrict disclosure of Confidential Information of the Disclosing Party to those of its employees and/or independent contractors and/or any third parties on its behalf, with a reasonable need to know such information for the purposes outlined herein. For the avoidance of doubt: the terms of this Agreement are the Confidential Information of both parties. The confidentiality obligations hereunder shall survive for a period of five (5) years following the termination or expiration of the Agreement for any reason. Following the termination or expiration of this Agreement, the Receiving Party shall, at Disclosing Party’s discretion, return or destroy any Confidential Information in its possession or control and provide the Disclosing Party written confirmation thereof; provided that: (i) one copy of any information may be maintained for audit and/or regulatory purposes in accordance with applicable law, and (ii) Receiving Party will not be required to destroy or return information that is contained on back-up media and other storage devices that are not readily accessible in the ordinary course of business. Such retained information shall continue to be subject to the foregoing obligations, for as long as such information is in Receiving Party’s possession or control. Confidential Information may be disclosed as part of, or during negotiations of, any merger, sale of Liper shares and/or assets or acquisition and provided that any recipients are subject to reasonable confidentiality undertakings no less stringent than those set out herein.
- Limitation of Liability.
TO THE GREATEST EXTENT ALLOWED UNDER APPLICABLE LAW, AND EXCEPT IN CASES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, EITHER PARTY NOR ANY OF ITS AFFILIATES, LICENSORS, SUPPLIERS OR ANY OF THEIR RESPECTIVE REPRESENTATIVES OR AGENTS BE LIABLE HEREUNDER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OR LOSSES, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH, THIS AGREEMENT, THE Products, the website OR Liper’s PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, EVEN IF IT HAS BEEN ADVISED, IS AWARE, OR SHOULD REASONABLE BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF, OR RELATED TO, THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE GREATER OF THE AMOUNT ACTUALLY PAID BY CUSTOMER TO Liper UNDER THIS AGREEMENT ATTRIBUTABLE TO THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT, ACT, OR OMISSION GIVING RISE TO SUCH LIABILITY. Liper WILL NOT BE RESPONSIBLE FOR ANY DAMAGES THAT CUSTOMER MAY INCUR FROM DELAYED SHIPMENT OR PRODUCT SELECTION, WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT, WARRANTY, OR OTHERWISE. THE FOREGOING LIMITATIONS SHALL NOT APPLY IN CASE OF FRAUD OR AN INTENTIONAL BREACH OF THIS AGREEMENT.
Liper shall have no liability with respect to any Products that (a) have been damaged by improper operation, tampering with, improper maintenance, misuse, accident, or neglect; (b) have been used in a manner not in accordance with the instructions supplied by Liper; (c) have had changes or repairs made without written authorization of Liper to do so, including by persons other than Liper‘s authorized service personnel or with parts not provided or approved by Liper; (d) were incorporated into another product without the prior written approval of Liper; (e) were stored in conditions and/or for a period of time contrary to the guidelines of Liper; and/or (f) negligence of Customer or the negligent operation or use of the Products by Customer and/or its representatives and end customers.
- Term and Termination
The Purchase Order shall become effective upon the date listed therein and continue in effect until the earlier of the date of (a) transfer of title in the relevant Products after receipt of full payment for such Products, or (b) termination pursuant to this section. Either party may terminate any Purchase Order for the material breach of the other party of any portion of the Agreement (including any other Purchase Order), where such breach has not been cured within 15 days of the provision of written notice thereof. Except as otherwise set forth herein, each party may terminate any Purchase Order in the event the other party: (i) makes a general assignment for the benefit of its creditors, (ii) applies for, consents to, or acquiesces to the appointment of a receiver, trustee, custodian, or liquidator for its business or assets, or (iii) files, consents to, or acquiesces in a petition seeking relief or reorganization under any bankruptcy or insolvency laws.
These Terms shall be in effect with respect to Website use for as long as you continue making use of the Website.
- Effects of Termination.
The termination or expiration of this Agreement shall not affect any obligations which have accrued prior to the effective date of such termination or expiration. The provisions of sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14 and 15 shall survive the termination or expiration of this Agreement for any reason.
Liper shall have the right to include a reference to the Customer, its official name and logo on its website, marketing literature, labeling and in its promotional materials.
- Notices. Any and all notices and communications hereunder shall be in writing and shall be deemed to have been duly given when delivered personally or by mail or courier or, with respect to Customer, to the email address of Customer provided to Liper.
- Relationship of Parties. Liper and the Customer, including any of its Representative, are and intend to remain independent parties. Nothing contained in this Agreement shall be deemed or construed to create the relationship of principal and agent or of partnership or joint venture, and neither party shall hold itself out as an agent, legal representative, partner, subsidiary, joint venturer, servant or employee of the other.
- Entire Agreement; Modification, Amendment, Waiver; Severability. The Agreement and its exhibits constitute the entire and sole agreement and understanding between the parties hereto with respect to the subject matter hereof and supersede any prior or contemporaneous understanding, agreements, representations or warranties, whether oral or written, with respect to the subject matter. No party shall be deemed to have waived compliance by any other party with any provision of the Agreement unless such waiver is in writing, and the failure of any party at any time to enforce any of the provisions of the Agreement shall in no way be construed as a waiver of such or any other provision and shall not affect the rights of any party thereafter to enforce such provisions in accordance with their terms. No waiver of any breach of any provision of the Agreement shall be deemed the waiver of any subsequent breach thereof or of any other provision of the Agreement. In the event that any provision of the Agreement is held invalid or unenforceable in any circumstances by a court of competent jurisdiction, such section shall be interpreted to give maximum effect to its terms as possible under law, and the remainder of the Agreement, and the application of such provision in any other circumstances, shall not be affected thereby.
- Assignment; Successors. The Customer shall not assign any of its rights or obligations hereunder without the prior written consent of Liper, and any assignments in violation of the foregoing shall be void. Liper may assign its rights or obligations hereunder.
- Governing Law.
The Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Israel without regard to principles of conflict of laws. Any action, suit or other proceeding arising under or relating to the Agreement shall be brought in a court of competent jurisdiction in the city of Tel-Aviv, and the parties hereby consent to the sole jurisdiction of such courts. Notwithstanding the foregoing, Liper may seek injunctive relief in any jurisdiction in order to enforce the Agreement.
Last updated: May 24, 2022