The OtoSense® SMS Trial Kit (“Trial Kit”) is made available by Analog Devices, Inc., a Massachusetts corporation with its principal office in Norwood, Massachusetts (“ADI”, “we” or “us”) subject to these Trial Kit and Order Terms (“Terms”) FOR TRIAL EVALUATION PURPOSES ONLY. Your use of the Trial Kit is subject to the terms set forth in Section I (Trial Terms) below, whether purchased from ADI or an ADI-authorized distributor. In addition, any order placed with ADI for purchase of a Trial Kit is subject to the terms set forth in Section II (Order Terms). ADI will not have any obligation or liability for any order placed with an ADI-authorized distributor.
PLEASE READ THESE TERMS CAREFULLY. BY ORDERING OR OTHERWISE ACCESSING OR USING ANY TRIAL KIT, you represent and warrant that you are authorized to represent the company or organization you are acting for and you conclude a legally binding contract based on these Terms with us on behalf of yourself and the company or other organization you are acting for (collectively referred to herein as “you”). If you do not agree to be bound by and comply with these Terms, do not place an order for the Trial Kit. The Trial Kit is only intended for corporate customers or prospects for trial evaluation purposes. The Trial Kit is not recommended for consumer use.
A. Use for Trial Evaluation Only. The use of the Trial Kit is limited to trial evaluation purposes only.
A.3. Trial Kit Materials. The Trial Kit, Trial Subscription, Trial Software and any documentation provided or made available by ADI in connection with any of the foregoing (collectively, “Trial Kit Materials”) are provided solely for trial evaluation of the Trial Kit that you purchased. You agree not to use the Trial kit Materials for any other purpose. Furthermore, you agree not to (i) rent, lease, display, sell, transfer, assign, sublicense, or distribute the Trial Kit Materials or use any Trial Kit Materials on behalf of any Third Party; or (ii) permit any Third Party to access or use the Trial Kit Materials without prior written consent of ADI. As used herein, the term “Third Party” includes any entity other than ADI or you or your employees, affiliates and in-house consultants.
B. Confidentiality. The Trial Kit Materials and all information regarding their evaluation, results and performance (collectively, “Confidential Information”) shall all be considered the confidential and proprietary information of ADI. You may not disclose or transfer any Confidential Information to any Third Party for any reason. Nothing in these Terms will be construed as preventing disclosure of information that is legally compelled to be disclosed by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction, provided that you promptly notify ADI of any such requirement to disclose Confidential Information to the extent legally permitted and cooperate with ADI in obtaining protective order or other available protection against such disclosure.
C. Additional Restrictions. You may not use any Trial Kit Materials for any commercial application, in any live environment, or in any other deployment setup where losses of valuable data, business interruptions, security breaches, or other physical or electronic injuries or damage may occur to humans or property. You shall be responsible for backing up any data used in connection with any Trial Kit Materials and ADI shall not have any responsibility or obligation relating thereto or for any loss thereof. You will not (and will not permit anyone else to): (i) reverse compile, decompile, disassemble, or reverse engineer any Trial Kit Materials, except to the extent any such restriction is prohibited under applicable law; (ii) copy (except as expressly permitted by ADI for installation of Trial Software), alter, modify, or create any derivative works of any Trial Kit Materials; or (iii) attempt to circumvent any security features or data encryption incorporated in any Trial Kit Materials.
D. Proprietary Rights. Except for Trial Kit hardware that you have purchased, the Trial Kit Materials are subject to license and NOT sold. ADI retains ownership of such Trial Kit Materials and all intellectual property rights. You agree not to remove or alter any trademark, copyright or other proprietary notices, legends, symbols or labels on the Trial Kit Materials. You are not obligated to provide ADI with any error reports, evaluation, suggestions, enhancements, recommendations, or other feedback (collectively referred to as “Feedback”). If you make or provide any Feedback relating to the Trial Kit Materials or any other ADI products or services, then you hereby grant to ADI a royalty-free, worldwide, transferable, sublicensable, perpetual, irrevocable, right and license to use, copy, modify, distribute and otherwise exploit without restriction any such Feedback and any products, software or services based on such Feedback. Any Feedback relating to the Trial Kit Materials will be treated as Confidential Information of ADI, which you agree to keep confidential in accordance with Section I(B) above. All rights not expressly granted by ADI are retained by ADI (or its licensors).
F. Warranty Disclaimer; Limitation of Liability. THE TRIAL KIT MATERIALS ARE PROVIDED “AS IS” AND ADI MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND WITH RESPECT TO ANY TRIAL KIT MATERIALS OR ANY USE THEREOF. ADI SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, RELATED TO THE TRIAL KIT MATERIALS INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. IN NO EVENT WILL ADI AND ITS LICENSORS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES RESULTING FROM YOUR POSSESSION OR USE OF ANY TRIAL KIT MATERIALS, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, DELAY COSTS, LABOR COSTS OR LOSS OF GOODWILL. ADI’S TOTAL LIABILITY FROM ANY AND ALL CAUSES SHALL BE LIMITED TO THE AMOUNT THAT YOU PAID TO ADI FOR PURCHASE OF THE TRIAL KIT HARDWARE OR, IF YOU DID NOT PAY ADI FOR PURCHASE OF THE TRIAL KIT HARDWARE, ONE HUNDRED US DOLLARS ($100.00).
G. General Terms
G.1. No Obligation for Costs Incurred. ADI shall not be obligated for any costs that you incur in your use of the Trial Kit Materials or compliance with these Terms.
G.2. Force Majeure. Nonperformance by either party to these Terms shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental action, failure of suppliers, earthquake, pandemic or any other reason where failure to perform is beyond the reasonable control of the non-performing party.
G.3. Choice of Law and Jurisdiction. These Terms (including validity and interpretation) will be governed by, construed and enforced in accordance with the laws of the Commonwealth of Massachusetts, without reference to any conflict of law principles. The exclusive place of jurisdiction for all disputes or other case or matter arising out of the contractual relationship between the parties shall be the Commonwealth of Massachusetts, USA; provided that ADI may seek equitable (including injunctive) relief and enforce judgements in any venue of its choosing. The parties hereto specifically exclude the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act from this Agreement.
G.4. Injunctive Relief. You agree that any breach of these Terms will result in irreparable and continuing damage to ADI for which there will be no adequate remedy at law, and ADI shall be entitled to seek injunctive relief and/or a decree for specific performance, and such other relief as may be proper (including monetary damages if appropriate).
G.5. Export. You agree not to directly or indirectly export any Trial Kit Materials to another country. You agree to comply with all applicable United States federal laws and regulations relating to exports.
G.6. Severability. If any of the provisions of these Terms are held to be not enforceable by a court or other tribunal of competent jurisdiction, then such provisions shall be reformed, limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect.
G.7. Assignability. You agree that these Terms and all incorporated agreements between you and us may be automatically assigned by us, in our sole discretion, without restrictions. You may not assign any rights or delegate any duties hereunder, and any purported assignment or delegation shall be null and void and constitute a material breach.
G.8. Subsequent Agreement. ADI is under no obligation to enter into a subsequent agreement with you following conclusion or termination of the Trial Subscription.
G.10. Privacy. Please refer to our Privacy Statement here for information about how ADI collects, uses and shares information that we receive from you in connection with your order and/or the OtoSense website, products and services.
G.11. Contact Information. All notices relating to these Terms may be posted on the OtoSense SMS Platform website or may be sent to you via email at the email address you provided when placing your order or registering for the Trial Subscription. All notices to us relating to these Terms shall be in writing and sent to the following:
One Technology Way PO BOX 9106
Norwood, MA 02062
ALL ORDERS PLACED WITH ADI FOR THE TRIAL KIT HARDWARE (“PRODUCT”) ARE SUBJECT TO THESE TERMS. ANY ADDITIONAL OR DIFFERENT TERMS SUBMITTTED BY YOU ARE EXPRESSLY REJECTED AND SHALL BE OF NO EFFECT.
A. Orders. Unless otherwise agreed by ADI, orders placed with ADI for the Product must be submitted through the OtoSense website page for ordering the Products. You agree that your order is an offer to purchase the Product on these Terms and remains subject to acceptance by ADI. You represent that all information provided by you in connection with any order is accurate and complete. ADI may verify any email, shipping address, payment method or other information before processing or accepting your order. All orders are subject to availability. ADI reserves the right to reject all or any part of an order in ADI’s sole discretion or to cancel all or any part of an order prior to shipment for any reason.
B. Payment. By providing any credit card or other payment method accepted by us, you represent and warrant that you are authorized to use that credit card or payment method and authorize us (or our third-party payment processor) to charge the full amount of your order to that credit card or payment method, including purchase price, shipping costs, taxes and other applicable charges. If the credit card or other payment method that you provide cannot be verified or processed by us (or our third-party payment processor), we may cancel your order. Payment is due at the time of order placement. Overdue payments shall be subject to finance charges computed at a periodic rate (to the extent permitted by law) of 1.5% per month (18% per year).
C. Prices and Taxes. The prices displayed are subject to change at any time without notice and do not include shipping or taxes. Information about charges for shipping and taxes will be provided at order confirmation or checkout. Any information provided prior to charging your credit card or payment method is an estimate only and subject to change. All prices are in U.S. Dollars. Prices are exclusive of all federal, state, municipal or other government excise, value added tax, sales, use, occupational or like taxes, tariffs, customs, duties and importing fees, the payment of which shall be your sole responsibility. Prices are consequently subject to increase by the amount of any such tax, tariff, duty or fee that ADI pays or is required to pay or collect upon sale or delivery. Any certificate of exemption or similar document or proceeding required to exempt from sales or use tax liability shall be obtained by you at your own expense.
D. Delivery. We may not ship to all locations. If we do not ship to the address you provided, we may cancel the order. Delivery and/or shipment dates provided in connection with any order are estimates only. Shipping of Product will be Ex Works point of origin (Incoterms 2010) unless otherwise designated by ADI. Unless you select and pay for a specific carrier at order confirmation or checkout, ADI will select the carrier and ship the address you provide for the order. ADI will not assume any liability in connection with the shipment or constitute any carrier as its agent. You shall be responsible for making all claims with carriers and others for non-delivery, loss, damage or delay. All claims for damages to the Product or shortages must be made within thirty (30) days of shipment and prior to any activation or use of the Trial Subscription for the Product. Under no circumstances shall ADI be liable for any delay either in shipment or in delivery.
E. Mistakes. We try to provide current and accurate Product and pricing information, but do not guarantee that all information will be current or accurate. If there is a mistake in the price, charges, quantity or other information, you agree that ADI will not be bound by that mistake and may cancel the order.
F. Cancellation, Returns. If we cancel your order prior to shipping and your credit card or other payment method has already been charged, we will issue a credit to your credit card or other payment method account in the amount of the charge. Any request by you for order cancellation or return must be made in writing and such action must be approved in writing by an authorized agent of ADI. ADI, at its option, may accept or reject any such request, and ADI reserves the right to impose charges in connection therewith. If approved, returns must be made within thirty (30) days after purchase and prior to any activation or use of the Trial Subscription for the Product. Participant shall not return any Product for any reason without issuance of a Material Return Authorization (MRA) number by ADI for such Product.
G. Additional Terms. Your order and any Products purchased by you are subject to the additional terms set forth in Section I (Trial Terms), including without limitation Sections I(B) (Confidentiality), I(G) (Warranty Disclaimer; Limitation of Liability) and I(H) (General Terms).
Last updated: February, 2021