Terms of Service
Terms of Service
Welcome to Ostomysecrets®, a Convatec brand website. Please carefully review the following Terms of Service, together with our Privacy Policy and any applicable Additional Terms (collectively, “Terms”) which govern your use of our Services. As used herein, “Service” or “Services” means any online or digital product or service owned or operated by Convatec Inc., or its affiliates (“Convatec” or “us” or “we”), including our websites (including www.ostomysecrets.com, (collectively, “Websites”), mobile applications (“Apps”), features, widgets, plug-ins, applications, communications (including chats and emails), content, downloads, platform and other product and services that post or link to or are otherwise stated to be governed by, these Terms. These Terms do not apply to any Third Parties or their services. Convatec in the United States (U.S.) is the owner, administrator, and operator of this website.
Convatec will provide notice of material changes to these Terms by posting the revised Terms on the Websites with a ‘Last Updated’ date and, for registered users, by sending an email to the address associated with your account at least thirty (30) days before the effective date of any material change. Your continued use of the Websites or Services after the effective date of the revised Terms constitutes your acceptance of such revised Terms. If you do not agree to the revised Terms, you must discontinue use of the Websites and Services before the effective date.
By accessing or using the Websites and/or any Service in any way or by providing information to Convatec, and/or by making a purchase, you are agreeing to be bound by and comply with the Terms (as set forth below), including the Privacy Policy, which may be updated from time to time. In addition, when using particular parts of the Websites or Services, such as shopping, forums, watching videos, blogs or the like, you agree to abide by any applicable posted guidelines for those services. Should you object to any of these Terms or the conditions of the Privacy Policy, you may not access or use the Websites or Services and you should not provide information to Convatec nor make any purchases. If you are under the age of majority, you may use the Services and purchase products only with involvement of a parent or guardian who agrees to these Terms and to be responsible for your use and purchases.
In some instances, additional or different terms and/or conditions will apply to your use of the Services or to a service or product offered via the Services (in each such instance, and collectively (“Additional Terms”). To the extent there is a conflict between the Terms of Service and any Additional Terms, these Terms of Service will control unless the Additional Terms expressly state otherwise. References to “these Terms” herein includes any applicable Additional Terms that may apply, unless stated otherwise.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION AFFECTING YOUR RIGHTS UNDER THESE TERMS OF SERVICE. ANY DISPUTE BETWEEN YOU AND CONVATEC IS SUBJECT TO A CLASS ACTION WAIVER, AND, EXCEPT FOR THOSE DISPUTES FILED IN SMALL CLAIMS COURT, MUST BE RESOLVED THROUGH INDIVIDUAL ARBITRATION RATHER THAN IN COURT.
1. What is Convatec’s Ostomysecrets® website used for?
This website offers a full line of stylish and functional undergarments, swimwear and skin care designed to support an individual’s ostomy system.
2. Who can access this website?
This website may be accessed and browsed by individuals who are 13 years of age or older with the consent and supervision of a parent or guardian who agrees to these Terms and to be responsible for your use, but placing an order or creating an account can only be done by persons who are at least 18 years of age or the age of majority in their jurisdiction of residence.
3. Territory, Intended Audience, and International Restrictions.
The Websites, Services, products, product information, prices, promotions, and offers are intended for individuals located in the United States and Puerto Rico, unless Convatec states otherwise in writing. The products and information available through the Websites are designed for use in accordance with U.S. requirements and U.S. product labeling. Convatec does not represent that the Websites, Services, products, product information, prices, promotions, or offers are appropriate, available, approved, cleared, registered, or lawful for use, access, purchase, import, or distribution in any jurisdiction outside the United States and Puerto Rico.
If you access the Websites or Services from outside the United States or Puerto Rico, you do so on your own initiative and are responsible for complying with applicable local laws. Convatec may restrict access to the Websites or Services, reject account registrations, refuse or cancel orders, or limit shipments where Convatec determines that doing so is necessary or appropriate for legal, regulatory, operational, fraud-prevention, product-availability, or compliance reasons.
You may not use the Websites or Services, or purchase or export products from the Websites, in violation of any applicable export-control, sanctions, import, customs, or other trade-compliance laws. You are responsible for ensuring that any products purchased through the Websites are used only as permitted by applicable law and product labeling.
4. Your information
Treating your personal data with care is important to Convatec. Please confirm you have read our Privacy Policy which is how we protect, use, and store your personal data. Convatec will monitor access to the Websites and may close your account if you do not sign into the Websites during a consecutive 12-month period or if you have violated Convatec’ s Terms of Service. Convatec reserves the right to notify you via email in advance of account termination and will remove your personal information (e.g., name, profile) from the Websites accordingly.
You must provide accurate and complete information if you register for an account to use the Websites or Services, and any time you use your account. It is your responsibility to also provide a true, accurate, and complete e-mail address, physical mailing address, phone number and other information related to your account, and to maintain and update promptly any changes in this information.
You may also request that your account be closed, and personal information deleted by emailing dataprivacy@Convatec.com with your username (i.e., email address). Please clearly identify the account you wish to be closed.
5. Data Protection Accountability and Confidentiality
Protecting your privacy in accordance with our Terms and Privacy Policy is important to us. The Website collects contact information to process and ship your order. By using the Websites and Services, you acknowledge that your purchase of products from this Website may reveal information about your health condition. For information about how Convatec collects, uses, stores, and discloses your personal data, please review our Privacy Policy. Convatec does not condition access to the Websites or Services on the waiver of any rights you may have under applicable health-privacy laws.
6. Children’s Privacy
Convatec’s Ostomysecrets® service offerings are not intended for children under 13 years of age. We do not knowingly collect or use personal information from children under 13 years of age, and no part of our Services are directed to children. If you learn that a child has accessed the website and provided us with personal information in violation of Convatec’s Privacy Policy, then you may contact us at cic@Convatec.com or 1-800-422-8811.
7. Keeping your Account Information Safe
To keep your data on the website protected, please do not share your personal login and password information with anyone. You are responsible for maintaining the confidentiality and security of your password, third-party login credentials, and account, and you are fully responsible for all activities that occur under your password, third-party login credentials, or account. You agree to (a) immediately notify Convatec of any unauthorized use of your password, third-party login credentials, or account or any other suspected breach of security. Convatec shall not be liable for any loss or damage arising from your failure to comply with these Terms.
The following actions are expressly prohibited by Convatec’s terms of use:
· Sharing, disclosing, permitting access to or otherwise facilitating the use by any other person of your username and password or third-party login credentials;
· Using your username and password or third-party login credentials to cache the Services in such a manner as to be accessible by persons who have not registered an account with Convatec; or
· Interfering with or disrupting the proper operation of the Services, with or without the use of your username, password, and/or third-party login credentials.
If you have forgotten your username or password, we will use an email address provided by you to send your username or temporary password. If you registered using a third-party login (such as Apple or Google sign-in), you must manage your credentials through that provider. You understand that others using the same email address will be able to gain access to your account information if they are able to provide the correct answers to your security questions. You further understand that by logging in through Apple or Google, you may be sharing information with them in accordance with their terms of use, but Convatec is not liable for information that you may share with third parties as a result.
Your use of the Websites and Services and any content accessed through the Services must comply with all applicable laws, regulations, and ordinances, including any laws regarding the export of data or software. You must be an adult of the legal age of majority or otherwise authorized under the governing law to make purchases on the Websites. If you are under the age of 18, your parent, authorized adult, or legal guardian must purchase products on the Websites on your behalf. By placing an order or creating an account, you represent and warrant that you are at least 18 years of age or the age of majority in your jurisdiction of residence.
7. Website Limitations and Maintenance
A. Convatec strives to provide continuous access to the Website(s) but reserves the right to apply interruptions or limitations in the functionality of the Website(s) due to technical reasons.
B. Technical limitations or interruptions may also occur on the device on which the Website(s) is being accessed on, which may result in the temporary unavailability of certain products and/or services of the Website(s). Convatec will strive to ensure that restrictions on the use of the Website(s) or technical interruptions are minimal.
C. Convatec is not responsible for the malfunction of the Website(s) or any technical interruptions in operation of the Website(s) when the interruption occurred for reasons beyond Convatec’s control.
D. Convatec is not responsible for the correct operation of the Website(s) in the user’s device or for the lack of such correctness of operation.
E. Convatec reserves the right to suspend at any time and for any reason the operation of the Website(s) or individual functionalities, as well as the right to change, withdraw or add new products and/or services.
F. Convatec may issue additional terms and conditions governing the use and services provided through the Website(s).
8. Prohibited uses
In using the Websites and Services, you agree not to:
· Send or otherwise transmit to or through the Websites and Services any unlawful, infringing, harmful, harassing, defamatory, threatening, hateful or otherwise objectionable material of any kind, any material that can cause harm or delay to the Websites or computers of any kind, and any unsolicited advertising, solicitation or promotional materials;
· Misrepresent your identity or affiliation in any way;
· Restrict or inhibit any person from using the Websites or Services, disclose personal information obtained from the Websites or Services or collect information about users of the Websites or Services;
· Reverse engineer, disassemble or decompile any section or technology on the Websites or Services, or attempt to do any of the foregoing;
· Gain unauthorized access to the Websites or Services, to other users’ accounts, names, personally identifiable information or other information, or to other computers or websites connected or linked to the Website or Services;
· Launch or use any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” that access the Websites in a manner that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional web browser;
· Send or otherwise transmit to or through the Websites and Services chain letters, unsolicited messages, so-called “spamming” or “phishing” messages, or messages marketing or advertising goods and services;
· Post, transmit or otherwise make available any virus, worm, spyware or any other computer code, file or program that may or is intended to damage or hijack the operation of any hardware, software or telecommunications equipment;
· Violate any applicable laws or regulations in any way;
· Alter or modify any part of the content or Services offered on or through the Websites;
· Allow any other person to use the Websites or Services with your registration or login information;
· Breach or otherwise circumvent Convatec’s security or authentication measures; and
· Assist or permit any persons in engaging in any of the activities described above.
9. Intellectual Property
The trademarks, service marks, trade names, trade dress and products featured on the Websites and Services are protected in the United States and globally. All trademarks relating to Convatec products or services are owned by Convatec.
The Websites and Services, which includes the graphic, textual, visual and audiovisual materials presented, film, sound, their layout and functionalities, system solutions, and related product algorithms belong to Convatec or third parties cooperating with Convatec and are protected under applicable U.S. law. It is forbidden to modify, copy, distribute, transmit, present, reproduce, reengineer, publish, license, or use any rights or information available on the Websites or Services for commercial purposes. No part, or all, of the content you have used may be reproduced or distributed, in any form or by any other means (electronic or mechanical), including copying and posting on the Internet.
No use of any of the Websites’ or Services’ functions or attributes may be made without the prior, written authorization of Convatec, except to identify the products or services of Convatec. The rights of all other trademark proprietors are fully recognized. Nothing contained in these Terms transfers any right, title, or interest in the Websites or the content of the Services to you. All copyright, trademark and other proprietary notices must be kept intact, and Convatec is acknowledged as the source of the content.
1. User Content, Reviews, and Testimonials.
The Websites or Services may allow you to submit, post, upload, display, transmit, or otherwise provide content, including product reviews, testimonials, comments, photographs, questions, survey responses, feedback, ideas, or other materials (“User Content”). You are responsible for any User Content you submit. By submitting User Content, you represent that your User Content is truthful, accurate, based on your own experience, not misleading, and that you have all rights and permissions necessary to submit it.
You retain ownership of your User Content, but you grant Convatec and its affiliates a non-exclusive, worldwide, royalty-free, transferable, sublicensable, perpetual, and irrevocable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, display, and otherwise use your User Content in connection with the Websites, Services, products, marketing, advertising, research, product improvement, and other lawful business purposes, in any media now known or later developed, subject to our Privacy Policy and applicable law.
Please do not submit User Content that includes sensitive personal information, medical records, health insurance information, financial information, account credentials, or personal information about another person unless you have that person’s permission and the disclosure is lawful. Public reviews and testimonials should not include information that you do not want other users to see. If you choose to share health-related information, you understand that it may reveal information about your health condition.
You agree not to submit User Content that is unlawful, false, misleading, defamatory, harassing, threatening, obscene, discriminatory, infringing, promotional without authorization, unrelated to the product or Service, or otherwise objectionable; that contains malware, spam, or links to unsafe websites; that impersonates another person; that discloses another person’s personal information without permission; or that makes claims about product performance, safety, diagnosis, treatment, cure, prevention of disease, or other health outcomes that are not consistent with applicable product labeling and law.
Convatec may, but is not required to, monitor, review, edit, reject, remove, disable, or refuse to post any User Content at any time and for any reason, including where Convatec believes the User Content violates these Terms, applicable law, product labeling, moderation guidelines, or the rights of any person. Convatec does not endorse User Content and is not responsible for User Content submitted by users. Reviews and testimonials reflect the views and experiences of the person who submitted them and may not reflect the experience of all users.
If you receive any incentive, discount, product, payment, or other benefit in connection with a review, testimonial, or other User Content, you must clearly and conspicuously disclose that connection when submitting the User Content. Convatec may require additional disclosures or refuse to use User Content where required to comply with applicable advertising, endorsement, consumer-protection, medical-device, or other laws.
10. Orders, Pricing, and Payment.
All orders placed through the Websites are offers to purchase and are subject to acceptance by Convatec. Your receipt of an order confirmation, order number, or payment authorization does not mean that Convatec has accepted your order. Convatec accepts an order when the order is processed for shipment. Convatec reserves the right to refuse, or cancel, or limit any order, in whole or in part, for any lawful reason, including where products are unavailable, discontinued, subject to quantity limits, listed with incorrect pricing orerrors, product information, affected by a website error, unavailability, or suspected to involve fraud or misuse, or placed in breach. Prices displayed on the Websites are in U.S. dollars and do not include applicable taxes, shipping, or handling charges, which will be calculated and displayed at checkout. Despite reasonable efforts to ensure pricing accuracy, errors may occur. In the event of a pricing error, Convatec will notify you and provide the option to confirm or cancel your order at the corrected price. Payment is due at the time of these Terms. Order placement. Convatec accepts Visa, Mastercard, Discover and American Express credit and debit cards, Diners Club, Shop pay, Google Pay and accepted HSA/FSA cards. By placing an order, you consent to receive electronic records of your transactions in accordance with applicable law
Products, colors, sizes, styles, prices, promotions, and availability may change without notice. Convatec may update, suspend, discontinue, or stop offering any product or product variation at any time. We do not guarantee that any product shown on the Websites will be available when you place an order or after an order is submitted. If an item becomes unavailable after you place an order, we may cancel the affected item or order and issue any applicable refund.
Convatec may set or enforce limits on quantities purchased per person, per household, per account, per payment card, per billing or shipping address, or per order. Convatec may also restrict sales where products appear to be ordered for resale, diversion, misuse, or other purposes inconsistent with personal use. If we apply an order limit or cancel part of an order, we will use reasonable efforts to notify you using the contact information provided with your order.
Convatec will not substitute a different product, size, color, or style unless you have selected or approved the substitution or unless the substitution is clearly identified before you complete your purchase. If an unavailable item cannot be fulfilled and no approved substitution is available, Convatec may cancel that item and issue any applicable refund.
Prices displayed on the Websites are in U.S. dollars and do not include applicable taxes, shipping, or handling charges, which will be calculated and displayed at checkout. Despite reasonable efforts to ensure product and pricing accuracy, errors may occur. Convatec may correct any errors, inaccuracies, or omissions at any time, including after an order has been submitted. If a pricing or product-information error affects your order, Convatec will notify you and provide the option to confirm the order at the corrected price or with the corrected information, or to cancel the affected item or order.
Payment is due at the time of order placement. Convatec accepts major credit and debit cards (including Visa, and Mastercard), electronic funds transfer (EFT/ACH), wire transfer, and any other payment methods made available at checkout. By placing an order, you represent that you are authorized to use the payment method provided and consent to receive electronic records of your transactions in accordance with applicable law.
11. Promotions, Discounts, and Marketing Communications.
From time to time, Convatec may offer promotions, discount codes, coupons, free-shipping offers, bundles, loyalty offers, limited-time offers, or other promotional activity through the Websites, email, SMS, social media, advertising, or other channels. Promotions are subject to any stated terms, conditions, eligibility requirements, product exclusions, territory limits, quantity limits, expiry dates, and availability restrictions.
Unless the promotion states otherwise, promotional offers are valid only for purchases made through the Websites, are not transferable, may not be redeemed for cash or applied to previous purchases, and may not be combined with other offers, discounts, or promotions. Promotional codes must be entered at checkout to apply. Convatec is not responsible for lost, stolen, expired, mistyped, delayed, misdirected, or undeliverable promotional codes or communications.
Convatec may change, suspend, extend, withdraw, or cancel any promotion at any time where permitted by law, including where a promotion is affected by technical issues, fraud, misuse, product unavailability, pricing or website errors, operational constraints, or circumstances outside Convatec’s reasonable control. If a promotion is affected by an error, Convatec may correct the error and may cancel or adjust affected orders in accordance with these Terms.
If you choose to receive marketing communications from Convatec, we may send you promotional emails, SMS/text messages, abandoned basket reminders, product updates, offer reminders, or similar communications, subject to our Privacy Policy and applicable law. Abandoned basket messages may remind you about items left in your shopping basket or checkout process and may include product information or promotional offers.
You do not need to agree to receive marketing emails or SMS/text messages in order to make a purchase. You may opt out of marketing emails by using the unsubscribe link in the email or by following any other instructions provided in the communication. You may opt out of SMS/text messages by replying STOP or by following the instructions provided in the message. Message and data rates may apply to SMS/text messages, and message frequency may vary.
Transactional communications related to your account, order, payment, shipment, return, product safety, service messages, or changes to these Terms are not promotional marketing communications and may still be sent to you even if you opt out of marketing communications. Convatec will not use health-related purchase information for advertising or marketing purposes without your express consent, as described in the Privacy Policy and these Terms.
12. Shipping and Delivery.
Orders are packaged and shipped during our normal business hours, Monday through Friday, 9:00 a.m. to 5:00 p.m. Eastern Time, excluding holidays. Orders are shipped by the United States Postal Service or UPS. UPS shipments cannot be delivered to P.O. Boxes. Shipping and product sales through the Websites are currently limited to addresses in the United States and Puerto Rico.
Available shipping methods and costs will be shown at checkout. Standard ground shipping is available for a flat rate, and expedited shipping options may be available for orders placed before 2:00 p.m. Eastern Time. Shipping charges are in addition to product prices and any applicable taxes, unless a valid free-shipping promotion applies.
You will receive an email confirmation when your order has shipped. Delivery dates are estimates only and are not guaranteed. Shipping times may be affected by carrier delays, weather, technical issues at our fulfilment center, supply constraints, holidays, or other events outside Convatec’s reasonable control. If we become aware of a material delay affecting your order, we will use reasonable efforts to notify you.
Title to products passes to you when the products are delivered to the carrier for shipment. Risk of loss passes to you when the carrier confirms delivery to the shipping address provided at checkout. Please ensure that your shipping address is accurate and complete before submitting your order. Convatec is not responsible for delays, failed deliveries, or lost packages caused by an incorrect or incomplete shipping address provided by you.
If your order tracking shows that a package has been delivered but you have not received it, please first check the delivery location, household members, neighbors, building reception, mailroom, or parcel locker, and then contact the carrier promptly. If you still cannot locate the package, contact us at 1-877-613-6246 or info@ostomysecrets.com so that we can help you review the shipment status. Convatec does not guarantee replacement or refund of packages marked as delivered by the carrier, but we will review lost-package concerns in good faith.
If an item arrives damaged, defective, incomplete, or materially different from what you ordered, please contact us promptly at 1-877-613-6246 or info@ostomysecrets.com and keep the product, packaging, and shipping materials so that we can review the issue and work with you on an appropriate resolution.
13. Returns and Exchanges.
To help ensure you order the correct size and can use your Ostomysecrets® products as soon as they arrive, we recommend that you review our sizing charts and measuring guides before placing an order. If you have questions about sizing or returns, please contact the Ostomysecrets® team at 1-877-613-6246 before placing your order or starting a return.
If you are not satisfied with an item, eligible products may be returned or exchanged if they are returned to us within thirty (30) days of our shipping date, in their original, new condition, with all tags attached, in their undamaged packaging, and packaged to protect their shape. For hygiene and health reasons, Convatec reserves the right to refuse any return or exchange that does not meet these requirements.
By law, intimate garments containing a crotch cannot be returned once they have been worn or tried on next to skin. Please try these items on over your own underwear. Items that have been worn, washed, altered, damaged, or returned without required tags or packaging may not be eligible for return or exchange.
To start a return or exchange, please contact an Ostomysecrets® sales consultant at 1-877-613-6246 if you have questions, complete the applicable return form, and include the completed form with the product you are returning or exchanging. Returns and exchanges should be shipped to: Ostomysecrets Processing, 1100 Route 130 South, Robbinsville, NJ 08691, or such other return address as Convatec may provide at the time of return.
Refunds for eligible returned purchases will be credited to the original payment method, usually within ten (10) business days after we receive and process the return. Return shipments are at your expense unless otherwise required by applicable law or expressly stated by Convatec. Convatec is not responsible for returns lost in transit, and we strongly recommend that you track and insure your return shipment. C.O.D. deliveries will not be accepted.
14. Force Majeure.
Convatec shall not be liable for any delay or failure in performance of its obligations under these Terms resulting from causes beyond its reasonable control, including but not limited to acts of God, natural disasters, pandemics, epidemics, government actions or orders, supply-chain disruptions, labor disputes, transportation failures, or interruption of utility services. In the event of a force majeure event affecting order fulfillment, Convatec will use commercially reasonable efforts to notify affected customers and will offer, at the customer’s election, a full refund or fulfillment upon cessation of the force majeure event.
15. Legal Notices
REGULATORY INFORMATION.
The products available for purchase on the Websites are regulated medical devices cleared or registered with the U.S. Food and Drug Administration (FDA). These products are intended for use as described in their labeling and instructions for use. No information provided on the Websites is intended to serve as a substitute for the professional judgment of a qualified healthcare provider. You should always consult your physician, ostomy care nurse, or other qualified healthcare professional before using any medical device purchased from the Websites. Convatec makes no representation that the information on the Websites complies with the laws or regulations of jurisdictions outside the United States.
PROMOTIONAL AND EDUCATIONAL CONTENT.
Content on the Websites and Services, including articles, videos, product descriptions, sizing guidance, lifestyle content, FAQs, blogs, reviews, testimonials, marketing materials, and other educational resources, is provided for general informational and educational purposes only. It is not intended to diagnose, treat, cure, prevent, or manage any disease or health condition, and it is not a substitute for professional medical advice, diagnosis, treatment, product fitting, stoma assessment, or the judgment of a qualified healthcare professional.
Reviews, testimonials, case examples, images, or user stories reflect individual experiences only. They are not guarantees of results, clinical outcomes, comfort, fit, performance, or suitability for any particular person. Individual results and experiences may vary depending on anatomy, stoma type, skin condition, body shape, activity level, product fit, product use, and other factors.
DISCLAIMER OF WARRANTIES
YOU AGREE THAT USE OF THE WEBSITES AND SERVICES IS ENTIRELY AT YOUR OWN RISK. THE WEBSITES AND SERVICES ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND. ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE FULLEST EXTENT PERMITTED BY LAW, CONVATEC DISCLAIMS ANY WARRANTIES FOR THE SECURITY, RELIABILITY, TIMELINESS, ACCURACY, AND PERFORMANCE OF THE WEBSITES OR SERVICES. TO THE FULLEST EXTENT PERMITTED BY LAW, CONVATEC DISCLAIMS ANY WARRANTIES FOR OTHER SERVICES OR GOODS OFFERED BY THIRD PARTIES, RECEIVED THROUGH OR ADVERTISED ON THE WEBSITES OR SERVICES, OR ACCESSED THROUGH ANY LINKS ON THE WEBSITES. TO THE FULLEST EXTENT PERMITTED BY LAW, CONVATEC DISCLAIMS ANY WARRANTIES FOR VIRUSES OR OTHER HARMFUL COMPONENTS IN CONNECTION WITH THE WEBSITES OR SERVICES. THE FOREGOING LIMITATIONS OF LIABILITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
THE PRODUCTS SOLD THROUGH THE WEBSITES ARE PROVIDED ‘AS IS.’ TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CONVATEC DISCLAIMS ALL WARRANTIES WITH RESPECT TO PRODUCTS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS DISCLAIMER DOES NOT AFFECT ANY STATUTORY RIGHTS THAT CANNOT BE WAIVED OR LIMITED BY CONTRACT
LIMITATION ON LIABILITY AND INDEMNITY OF CONVATEC
CONVATEC WILL USE REASONABLE EFFORTS TO INCLUDE UP-TO-DATE AND ACCURATE INFORMATION ON THE WEBSITES AND SERVICES. CONVATEC SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS, EXPENSES, LOSSES (INCLUDING, WITHOUT LIMITATION, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF GOODWILL OR REPUTATION, LOSS OF ANTICIPATED SAVINGS, LOSS OF DATA, OR FOR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, IN EACH CASE HOWSOEVER ARISING, WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES AND WHETHER ARISING IN OR CAUSED BY BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE) OR INJURY RESULTING FROM YOUR ACCESS TO, OR INABILITY TO ACCESS, THE WEBSITES OR SERVICES, OR FROM YOUR RELIANCE ON ANY INFORMATION (BE IT MEDICAL INFORMATION OR FINANCIAL INFORMATION OR OTHERWISE) PROVIDED ON THE WEBSITES OR SERVICES.
YOUR SOLE REMEDY IS TO DISCONTINUE USING THE WEBSITES AND SERVICES. THE USE OF ANY MEDICAL DEVICE REFERRED TO ON THE WEBSITES OR SERVICES IS FOR INFORMATIONAL PURPOSES ONLY, AND ON NO ACCOUNT SHOULD YOU RELY ON THE CONTENT OF THE WEBSITES OR SERVICES TO DICTATE WHAT MEDICAL DEVICE YOU OR ANYONE ELSE SHOULD USE OR STOPS USING. THE WEBSITES AND SERVICES ARE NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY QUESTIONS OR CONCERNS ABOUT THE HEALTH CONDITION OF A PATIENT YOU ARE CARING FOR OR HAVE RESPONSIBILITY OVER PLEASE REFER TO YOUR AFFILIATED MEDICAL INSTITUION FOR GUIDANCE IN ACCORDANCE WITH YOUR TREATMENT PROTOCOLS.
THE FOREGOING LIMITATIONS OF LIABILITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
YOU AGREE TO INDEMNIFY AND HOLD HARMLESS CONVATEC AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS, AND ASSIGNS FROM AND AGAINST ANY THIRD-PARTY CLAIM, LIABILITY, DAMAGE, LOSS, AND EXPENSE (INCLUDING REASONABLE ATTORNEYS' FEES) ARISING OUT OF OR RELATED TO: (A) YOUR VIOLATION OF THESE TERMS; (B) YOUR VIOLATION OF ANY APPLICABLE LAW OR REGULATION; (C) YOUR INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD PARTY'S RIGHTS; OR (D) ANY CONTENT OR INFORMATION YOU SUBMIT, POST, OR TRANSMIT THROUGH THE WEBSITES OR SERVICES. THIS INDEMNIFICATION OBLIGATION SHALL NOT APPLY TO THE EXTENT THAT ANY CLAIM ARISES FROM THE SOLE NEGLIGENCE OR WILLFUL MISCONDUCT OF CONVATEC.
CONTRACTUAL LIMITATIONS PERIOD
Except as otherwise prohibited by law, any claim or dispute must be brought within one (1) year from the date the cause of action arises. This one-year limitations period shall not apply to claims for bodily injury or death arising from the use of any Convatec Product; such claims shall be governed by the applicable statute of limitations under the law of the jurisdiction in which the claim arises.
11. Disputes and Arbitration Agreement
ARBITRATION AGREEMENT. These Terms include an Arbitration Agreement that governs any disputes between you and us. This Arbitration Agreement and other provisions will:
Eliminate your right to a trial by jury to the extent allowable under applicable law; and
Substantially affect your rights, including preventing you from bringing, joining, or participating in class or consolidated proceedings.
DISPUTE RESOLUTION
A. Generally
You and we (referred to individually in this Section (“Arbitration Agreement”) as “party” and collectively as “parties”) each agree that any and all controversies, disputes, allegations, or claims at law or equity that have arisen or may arise between you and us relating in any way to or arising out of this or previous versions of these Terms, your use of or access to the Websites or Services, the content, or your user generated content (“Dispute”), SHALL BE RESOLVED INDIVIDUALLY AND EXCLUSIVELY THROUGH FINAL AND BINDING ARBITRATION, rather than through other legal proceedings in court. You and we agree to give up the right to go to court to assert or defend rights under these Terms of Service and with respect to any Dispute. Arbitration is more informal than a lawsuit filed in court. It uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to limited review by courts.
The parties clearly and unmistakably agree that the arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any and all threshold disputes relating to this Arbitration Agreement, including but not limited to: (i) whether any particular Dispute is subject to arbitration; (ii) the scope, interpretation, applicability, validity, unconscionability, and enforceability of this Arbitration Agreement or any portion thereof (other than the Class Action Waiver as expressly stated below); (iii) the formation and existence of this Arbitration Agreement; and (iv) any defense to arbitration, including waiver, delay, laches, or estoppel. This delegation is intended to be enforced to the maximum extent permitted under the Federal Arbitration Act, 9 U.S.C. § 2, and the laws of the State of Delaware. This delegation shall be severable from the remainder of this Arbitration Agreement and shall survive any finding that any other provision of this Arbitration Agreement is unenforceable. Any challenge to this delegation clause must be directed specifically to the delegation clause itself and not to the Arbitration Agreement as a whole. The incorporation of the NAM Rules, which empower the arbitrator to determine jurisdictional and arbitrability issues, provides additional clear and unmistakable evidence of the parties' intent to delegate such questions to the arbitrator.
If for any reason a Dispute or claim proceeds in court rather than in arbitration, WE BOTH HEREBY WAIVE ANY RIGHT TO A JURY TRIAL.
Waiver of Right to Bring Class Actions and Representative Claims
ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT AS A REPRESENTATIVE PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION.
The arbitrator is empowered to resolve the Dispute with the same remedies available in court. However, any relief must be individualized to you and shall not affect any other customer. You and we agree that each may bring claims against the other in arbitration only in your or Convatec’s respective individual capacities and in so doing you and we hereby waive the right to a trial by jury, to assert or participate in a class action lawsuit or class action arbitration (either as a named-plaintiff or proposed class member), and to assert or participate in any joint or consolidated lawsuit or joint or consolidated arbitration of any kind. If it is decided that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim, then that claim (and only that claim) must proceed in court and be severed from any arbitration.
B. Informal Dispute Resolution First
i. You and we agree that, prior to initiating an arbitration or other legal proceeding, you and we will attempt in good faith to negotiate an informal resolution of the Dispute. To begin this process, and before initiating any arbitration or legal proceeding against us, you must send a Notice of Dispute (“Notice”) by certified mail to the attention of our Legal Department at Convatec Inc., 200 Connell Drive, Suite 1000, Berkeley Heights, NJ 07922, Attention: Legal Department .
ii. Your Notice to us must contain all of the following information: (1) your full name, address, and the email address and phone number associated with your use of the Websites or Services or any Services account or that you have otherwise used to transact with us; (2) a detailed description of the nature and basis (including relevant documentation) of the Dispute; (3) a description of the relief you want, including any money damages you request; and (4) your signature verifying the accuracy of the Notice and, if you are represented by counsel, authorizing us to disclose information about you to your attorney.
iii. After receipt of your Notice, you and we shall engage in a good-faith effort to resolve the dispute for a period of 60 days, which both sides may extend by written agreement (“Informal Dispute Resolution Period”). During the Informal Dispute Resolution Period, neither you nor we may initiate an arbitration or other legal proceeding. Both you and we agree that this dispute resolution procedure is a condition precedent which must be satisfied prior to initiating any arbitration or filing any claim against the other party
iv. If the Dispute is not resolved during the Informal Dispute Resolution Period, you may initiate an individual arbitration as provided below (or if your Dispute is excluded from the Arbitration Agreement pursuant to Section 11(I), you may initiate your Dispute in the appropriate venue).
C. Arbitration Procedures
i. The assigned independent arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any Dispute arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, any part thereof, including, but not limited to, any claim that all or any part of these Terms are void or voidable.
ii. Conducting Arbitration and Arbitration Rules. Any arbitration must be initiated with and conducted by National Arbitration & Mediation (“NAM”) pursuant to its Comprehensive Dispute Resolution Rules and Procedures and/or its Mass Filing Supplemental Dispute Resolution Rules and Procedures (together, the “NAM Rules”), except as modified by these Terms. The NAM Rules are available at www.NAMADR.org, by calling NAM at 1-800-358-2550. In any instance where the applicable NAM Rules and these Terms are inconsistent, these Terms shall control.
iii. An arbitration demand filed with NAM must include a certification signed by the filing party verifying compliance with the Initial Dispute Resolution requirements and other requirements set out in this Arbitration Agreement.
iv. If NAM fails or declines to conduct the arbitration for any reason, you and we will mutually select a different arbitration administrator. If we cannot agree, a court will appoint the arbitration administrator. If you initiate an arbitration against Convatec, you will be responsible for the nonrefundable individual’s initial filing fee. To the extent the filing fee for the arbitration exceeds the filing fee to file the case in a court of competent jurisdiction embracing the location of the arbitration, the arbitrator may require Convatec to reimburse you for the excess amount you paid to NAM. If the arbitrator finds that NAM’s filing, administrative, hearing, and/or other fees would be prohibitive for you as compared to the costs of litigation, the arbitrator may require Convatec to reimburse as much of the filing, administration, hearing, and/or arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive to you.
v. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, groundless, or brought or continued in bad faith, you agree to reimburse Convatec for all fees associated with the arbitration paid by us on your behalf that you otherwise would be obligated to pay under NAM Rules. You further agree that if your arbitration claim is filed at or around the time of other similar claims by the same or related counsel, you agree that your claim may be temporarily stayed or phased to allow the NAM to establish efficient and fair adjudication procedures. The arbitrator’s award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. The arbitrator may, in the arbitrator’s discretion and to the extent authorized by applicable law, include in the award rendered by the arbitrator costs of arbitration, reasonable attorneys’ fees, and reasonable costs, including costs for expert and other witnesses, to the prevailing party, and the arbitrator shall include in such analysis whether any claims made in the arbitration were frivolous or were brought or continued in bad faith.
vi. Any arbitration hearing will take place in or nearest to the county or municipality where you live, unless you and we agree to a different location or to a virtual hearing.
D. Additional Procedures for Mass Arbitration.
i. To the extent permitted by applicable law, you and we agree that these “Additional Procedures for Mass Arbitration” in this Section (D) shall also apply if you or we are subject to twenty-five (25) or more individual arbitration demands of a substantially similar nature within 180 days with the assistance of the same law firm, group of law firms, or organizations (“Mass Arbitration”). For the avoidance of doubt, this includes where you choose to participate in a Mass Arbitration against us; for example, where your counsel asserts your Dispute against us in a Mass Arbitration. Please be aware that if you do so, the resolution of your Dispute might be delayed and ultimately proceed in court. You and we agree that as part of these procedures, the parties’ counsel shall meet and confer in good faith in an effort to resolve the Disputes, streamline procedures, address the exchange of information, modify the number of Disputes to be adjudicated, and conserve the parties’ and the arbitrator’s resources.
If the parties disagree about whether a Mass Arbitration has been instituted, either party may request that the arbitration provider determine that a Mass Arbitration has been instituted and that the procedures below are applicable. For purposes of making this determination, the parties agree that arbitration demands are of a “similar nature” if they arise out of or relate to a similar factual scenario and raise the same or similar legal issues and seek the same or similar relief.
From the date of agreement that a Mass Arbitration has been filed, or if the arbitration provider determines that a Mass Arbitration has been filed, either party may opt-out of arbitration within thirty (30) days of the determination and proceed individually in a court of competent jurisdiction in Delaware. You may opt out of arbitration by providing written notice of your intention to opt out to the arbitration provider and to us, at Convatec, 200 Connell Drive, Suite 1000, Berkeley Heights, NJ 07922 , ATTN Legal Office. We may opt out of arbitration by sending written notice of our intention to opt out to the arbitration provider and to you or your attorney, agent, or representative if you are represented.
The limitations period(s) applicable to each arbitration demand within a Mass Arbitration, including any applicable statutes of limitations and the requirement to file within one (1) year shall remain tolled from the time a party makes a pre-arbitration demand to the time when that party files the arbitration demand with the arbitration provider.
If the parties proceed with the Mass Arbitration, they agree that the following terms and procedures shall apply.
ii. STAGE ONE: the parties agree to the following bellwether protocols intended to reach a fair and speedy resolution of all claims in the Mass Arbitration. The arbitration provider shall randomly select four (4) demands for arbitration to proceed, and then claimants and respondents shall each select three (3) demands for arbitration to proceed, for a total of ten (10) arbitrations (“Bellwether Arbitrations”). While the Bellwether Arbitrations are adjudicated, all remaining demands for arbitration comprising the Mass Arbitration shall be held in abeyance and stayed, and no party shall be responsible for paying any additional administration or arbitrator fees (other than initial filing/administrative fees for the Bellwether Arbitrations and the abeyance fees) while the Bellwether Arbitrations are adjudicated. Any applicable statute of limitations regarding those demands shall be tolled beginning from the date of determination there is a Mass Arbitration. The parties agree that these bellwether procedures are designed to achieve an overall faster, more efficient, and less costly mechanism for resolving Mass Arbitrations, including claims that are not selected for Bellwether arbitrations.
Accordingly, following the resolution of all of the Bellwether Arbitrations, the parties shall engage in a global mediation of all remaining demands for arbitration comprising the Mass Arbitration. The mediation shall be administered by the arbitration provider, or a mutually agreeable other mediator.
iii. STAGE TWO: If the parties are unable to reach a global resolution following the above Bellwether Arbitrations and global mediation, the following batching provisions shall apply to the remaining claims:
1. The parties shall cooperate to group the arbitration demands into randomized batches of no more than 100 demands per batch. To the extent there are fewer than 100 arbitration demands left over after the batching previously described, a final batch shall consist of the remaining demands.
2. The arbitration provider shall treat each batch of demands as one case, with each case having one demand for arbitration, one appointed arbitrator, and one set of administrative documents, and administrative arbitrator, and filing fees per batch.
3. This batching process shall not impact the nature of these actions as individual in nature, including that the arbitrator will make a separate determination for each claimant, nor shall it change the burden of proof on each individual claimant.
You agree to cooperate in good faith with Convatec and the arbitration provider to implement such a batch approach to resolution. Disagreements over the applicability of this batch arbitration process will be settled in a single, consolidated arbitration proceeding that includes all affected parties and is resolved by a single arbitrator subject to the requirements of this section. If NAM is unable or unwilling to administer the Dispute in accordance with the terms set forth in this section, the parties shall agree to another arbitration provider that is willing and able to administer the Mass Arbitration pursuant to the Bellwether Arbitration and batch approach outlined in the terms above.
E. Severability of Arbitration Agreement
If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from this Arbitration Agreement; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
F. Other Terms
The parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that it shall be governed by, and interpreted, construed, and enforced in accordance with, the Federal Arbitration Act. The terms of the Arbitration Agreement provisions shall survive after this Agreement terminates or your use of the Websites and Services ends. Except as set forth above, if any portion of this Arbitration Agreement is deemed invalid or unenforceable, it will not invalidate the remaining portions of the Arbitration Agreement.
G. Costs of Arbitration
Payment of all filing, administration and arbitrator fees will be governed by the NAM Rules. For claims under $10,000, we will reimburse you for all arbitration fees, including the initial filing fee, if you are deemed the prevailing party by the arbitrator. For the global mediations (if any) that take place according to this Arbitration Agreements, we will pay the mediator’s fee.
H. Exceptions to Arbitration
This Arbitration Agreement shall not require arbitration of the following types of claims brought by either you or Convatec: (i) small claims court actions, if the requirements of the court are met and the claims are only on an individual basis; and (ii) claims pertaining to intellectual property rights, including trademarks, trade dress, domain names, trade secrets, copyrights and patents.
I. Opt-Out Procedure
You may opt out of this Arbitration Agreement. If you do so, neither party can force the other party to arbitrate. To opt out of this Arbitration Agreement, you must notify us in writing no later than thirty (30) calendar days upon the earlier of either notice to you or posting updated terms to any of the Websites. If you opt out of the Arbitration Agreement, the class action waiver shall continue to apply. Your opt-out notice and must be sent via email and U.S.Mail, postage prepaid, to the attention of our Legal Department at Convatec Inc., 200 Connell Drive, Suite 1000, Berkeley Heights, NJ 07922 and Legal.Office@Convatec.com and shall include your name, address, and the same email address you used to create an account with us (if you created an account with us) and a statement that you wish to opt out of this Arbitration Agreement. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may enter into in the future with us.
12. Governing Law; Venue; Entire Agreement
To the fullest extent permitted by law, these Terms of Service and any claim or dispute arising out of or relating to the Services, these Terms of Service, the PRIVACY POLICY, or your use of the Websites, will be governed by and construed in accordance with the State of Delaware, without regard to its choice of law provisions, and not by the 1980 U.S. Convention on Contracts for the International Sale of Goods. Any claim or dispute arising out of or relating to our services, these Terms of Service, the PRIVACY POLICY or your use of the Websites shall be subject to the exclusive jurisdiction of state or federal courts in the State of Delaware and you hereby consent and submit to the personal jurisdiction of such courts. These Terms of Service constitute the entire agreement between you and Convatec with respect to the subject matter of the Terms of Service.
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