These Terms and Conditions (“Agreement”) apply to the pre-sale of the product described below (“Product”) by Holland Bloorview Kids Rehabilitation Hospital and its affiliated entities (“Seller”). Seller is offering the Products for pre-sale on Indiegogo, a crowdfunding platform (“Website”). This Agreement may be amended from time to time without notice, and is binding on Buyer as of the date of posting.
The Product, Hummingbird, will allow children who are non-verbal to harness vibrations through humming sounds and use it as a switch for access to communication software and environmental controls.
1. Limited Warranty
Seller warrants good and free title in the Product and that the Product will conform to Seller’s published specifications, if any exist, or to such other quality standards and/or measurements it chooses to publish. Seller has based any recommendations to Buyer for the use of the Product upon information that Seller considers reliable, but Seller makes no warranty as to any results Buyer might obtain in Buyer’s use(s) for the Product. These warranties extend only to Buyer, and not to third parties. Seller makes no representation or warranty of any kind with respect to the Product, whether express or implied, respecting merchantability or fitness for any particular purpose. Seller makes no other warranties extending beyond the description of the Product, whether used alone or in combination with any other process.
2. Limitation of Liability
Buyer will examine Product promptly after receipt for damage and defects. Buyer must give Seller written notice of the existence of each claim involving Product (whether based in contract, breach of warranty, negligence, strict liability, other tort or otherwise) within the earlier of thirty (30) days after receipt of the quantity of Product forming the basis for the claim, if any. A failure by Buyer to give such notice within the applicable time constraint will constitute an absolute and unconditional waiver of all such claims. Buyer assumes all risk of patent infringement by reason of any use Buyer makes of the Product in combination in the operation of any process, and all infringement arising out of Seller’s compliance with Buyer’s designs, specifications or instructions, and Buyer shall defend, indemnify and hold Seller harmless from and against the same. Seller’s entire liability to Buyer for damages, whether under breach of warranty or any other cause whatsoever, and whether under this contract or otherwise, shall in no event exceed that part of the purchase price applicable to the portion of Product giving rise to Buyer’s claim for such damages. In no event will either party have liability to the other for any incidental, consequential, exemplary or special damages.
3. Product Availability and Prices
The advertisements on the Website are invitations to you to make offers to purchase products and services on the Website and are not offers to sell.
Seller strives to ensure that products are available in the quantities ordered and are of expected quality. Seller also strives to ensure that information and prices quoted are up to date. However, errors, misprints, inaccuracies and incomplete information may occur and Seller does not guarantee or warrant that the content of the Website including, without limitation, pricing, product descriptions or photographs, are current, accurate or complete.
Prices on the Website are stated in Canadian Dollars (CAD). All prices are subject to applicable taxes, handling charges and shipping charges. We have made every effort to display as accurately as possible the colors and images of our products that appear on the Website. We cannot guarantee that your computer monitor’s display of any color will be accurate. We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at anytime without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited.
We do not warrant that the quality of any products, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Service will be corrected.
4. Title & Risk of Loss
Title and risk of loss to the Product shall pass to Buyer at Seller’s point of shipment. Buyer assumes all risks and liabilities arising out of unloading, discharge, storage, handling and use of the Product, or arising out of compliance or non-compliance with federal, state, municipal or local laws and regulations governing or controlling such activity, except to the extent, if any, attributable to Seller’s gross negligence or willful misconduct. Seller has no liability for the failure of discharge or unloading equipment or materials used by Buyer, whether or not supplied by Seller. Except to the extent attributable to the Product failing to meet the express warranties set forth in paragraph 1, Buyer will indemnify, defend and hold Seller harmless from all costs, expenses, damages, judgments or other loss, including costs of investigation, litigation and reasonable legal fees, arising out of Buyer’s selection, use, sale and further processing of the Product.
5. Force Majeure
Except with respect to default of subcontractors, Seller shall not be liable for any delay in or failure of performance if the failure to perform arises out of causes beyond the control and without the fault or negligence of Seller including acts of God or of the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, pandemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather, but in every case the failure to perform must be beyond the control and without the fault or negligence of Seller. If the failure to perform is caused by the default of a subcontractor, and if such default arises out of causes beyond the control of both the Seller and subcontractor and without the fault or negligence of either of them, Seller shall not be liable for any delay or failure to perform, unless the supplies or services to be furnished by the subcontractor were obtainable from other sources in sufficient time to permit Seller to meet the required delivery schedule.
6. Indemnity
Buyer agree to indemnify, defend and hold harmless Seller and its subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable legal fees, whether in respect of any infringement of Seller’s intellectual property in the Product, or made by any third-party due to or arising out of Seller’s breach of this Agreement, including with respect to Seller’s violation of any law or the rights of a third-party.
7. Shortage of Product
During periods when demand for Product exceeds Seller’s available supply, whether due to a force majeure or otherwise, Seller may distribute Product among itself for its own manufacturing uses, its customers, and Buyer in such manner as Seller deems fair and practicable. Buyer will accept, as full and complete performance by Seller, deliveries in accordance with such determinations as Seller may make. Except in the case of a force majeure, if not satisfied with Seller’s determination, Buyer as its sole remedy shall have a right to terminate this contract without further obligation upon: (i) 10 days written notice; and (ii) payment for all Product received to date.
8. Integration
This Agreement shall apply to all sales of the Product by Seller. No statement of agreement, oral or written, made before or at the signing of this contract shall vary or modify the written terms hereof, and neither party shall claim any amendment, modification or release from any provision hereof unless such change occurs in a writing signed by the other party and specifically identifying it as an amendment to this contract. No modification or addition to this Agreement shall occur by the acknowledgment or acceptance by Seller of a purchase order, acknowledgment, release or other form submitted by Buyer containing additional or different terms or conditions, and Seller hereby gives Buyer notice of the rejection of such additional terms and conditions. A provision elsewhere in this Agreement that conflicts with a provision in these general terms and conditions will govern.
9. Severability
In the event of illegality or invalidity of a provision of this contract under the law of a particular jurisdiction, the parties shall deem that provision stricken in its entirety; the balance of this contract shall remain in full force and effect.
10. Applicable Law
This Agreement and all related matters are governed solely by the laws of Ontario, Canada and applicable federal laws of Canada, excluding any rules of private International law or the conflict of laws which would lead to the application of any other laws.
11. Export/Re-Export
Buyer shall not sell, export, import, re-export, distribute, transfer or otherwise deal with or dispose of the Product, whether directly or indirectly, without first obtaining all necessary written consents, permits and authorizations and completing such formalities as may be required by any applicable such laws, rules and regulations. Failure by Buyer to comply with such laws, rules and regulations shall constitute a material default under the contract. Buyer agrees to impose this same compliance requirement in its contracts with third parties pertaining to the Products.
12. Loss or Failure of the Product
Buyer agrees that they have considered and accept the consequences (physical, emotional, financial or otherwise) of use, and any subsequent loss or failure of the Product.
13. Product not a Medical Device
Buyer acknowledges Seller’s position that the Product is as assistive device, and not a “device” as defined in the Food and Drugs Act (Canada) and therefore is not subject to medical device licensing requirements.
14. Privacy
Seller will hold any personal information it collects from a Buyer in accordance with applicable privacy laws.
15. Questions and Complaints
Any questions or comments about the Product should be sent to hello@myhummingbird.ca.