Terms and Conditions

THESE WALLCUR TERMS & CONDITIONS ARE EFFECTIVE AS OF MARCH 22, 2018 AND REPLACE THE PRIOR WALLCUR TERMS & CONDITIONS.

These Terms & Conditions (this “Agreement”) are between Wallcur, Inc. (“Wallcur”) and you concerning your use of Wallcur’s medical simulation products, including Practi-Products (alone “Practi-Products,” all collectively the “Products”). “You” includes any minor child or other person for whose use and on whose behalf you have the legal right to purchase a Product. By using any Product or by clicking “accept” to this Agreement, you are agreeing to this Agreement.

PLEASE READ THIS AGREEMENT CAREFULLY BECAUSE IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. IF YOU ARE VIEWING THESE TERMS & CONDITIONS ELECTRONICALLY, YOU ARE ADVISED TO PRINT A COPY OF THESE TERMS & CONDITIONS TO KEEP FOR YOUR OWN RECORDS.

1. Scope of Agreement. Wallcur is engaged in the business of producing, distributing and selling its Products to educational institutions that provide health care occupational training services, including, without limitation, nursing, medical assistant, pharmacy technician, emergency medical technician, and other allied health professional training programs. By purchasing the Products, you agree to the following terms and conditions pertaining to the use of the Products: THE PRODUCTS ARE SOLD FOR INSTRUCTIONAL PURPOSES ONLY AND ARE NOT INTENDED FOR HUMAN OR ANIMAL USE, INJECTION, APPLICATION AND/OR INGESTION. YOU FURTHER AGREE YOU WILL USE THE PRODUCTS FOR THEIR INTENDED INSTRUCTIONAL PURPOSES ONLY, IN A SAFE AND LEGAL MANNER CONSISTENT WITH ALL APPLICABLE STATE AND FEDERAL LAWS AND PURCHASER'S OWN INTERNAL HEALTH AND SAFETY POLICIES. TO USE THEM OTHERWISE IS OUTSIDE THE SCOPE AND PURPOSE FOR WHICH THEY ARE INTENDED. THE PRODUCTS ARE FOR EDUCATIONAL PURPOSES ONLY TO BE USED UNDER THE SUPERVISION OF A QUALIFIED INSTRUCTOR. YOU REPRESENT AND ACKNOWLEDGE THE PRODUCTS ARE BEING USED FOR COMMERCIAL PURPOSES AND NOT FOR PERSONAL, FAMILY, OR HOUSEHOLD USE. By entering into this Agreement and purchasing Products, you must complete and sign the “WALLCUR PRODUCTS PURCHASE AUTHORIZATION FORM”, which is incorporated into this Agreement.

2. Modification of Products/Packaging. You will not modify the Products and/or their appearance and/or packaging. This applies, in particular and without limitation, to warning labels and/or indications on possible dangers in case of inappropriate use of the Products as well as other labels and/or indications which should neither be modified nor removed. For the purpose of this Section, the term “packaging” means documentation included with the Products, including, without limitation, instructions for use, safety instructions, limited warranty information, warning and information labels, and indications fixed on the Product itself, as well as all other documents included with the delivered Products.

3. Recalls. If, due to a potential or real defect of a Product, Wallcur, in its sole opinion, elects for safety reasons to recall Products from the market (“Recall Action”), you will support Wallcur in the Recall Action by taking all measures and executing all actions as instructed by Wallcur at Wallcur’s cost.

4. Your Obligations. You shall notify Wallcur promptly in writing after learning of any complaint, claim, investigation, inquiry or review by any government agency or third party regarding any of the Products provided under or related to this Agreement or the occurrence of any other matter related to or that may affect Wallcur’s sale of the Products.

5. Indemnification. You hereby waive, release and forever discharge, and hereby agree to protect, defend, indemnify and hold harmless, Wallcur, its employees, agents, officers, directors, owners, members, managers, and affiliates (the “Released and Indemnified Parties”), from and against any and all liability, claim, loss, cost, damage and expense arising directly or indirectly out of or relating in any way to the use, misuse, possession, maintenance, operation or storage of the Products, even if that liability, claim, loss, cost, damage, or expense is based on or claimed to be based on the negligent acts or omission of any of the Released and Indemnified Parties or any other party or parties.

6. Terms & Condition of a Sale. Each sale of Wallcur’s Products is made pursuant to and is subject to the following terms and conditions:

A. Shipping. Wallcur shall deliver the Products or cause the Products to be delivered to you F.O.B. Wallcur’s shipping point in San Diego, California. You shall pay all costs and expenses of freight, transportation, taxes (including without limitation sales, use, export and import), insurance and all other costs and expenses incurred to transport the Products to you. Delivery charges will be charged to you at the standard rates of Wallcur's designated carrier in effect from time to time. Prices do not include delivery unless otherwise indicated. Shipping dates are estimates only. Changes in the shipping schedule requested by you may result in an increase in the price of the Products. Expedited orders and orders shipped on collect shipping accounts may incur additional fees. Wallcur is not responsible for broken or damaged Products due to weather conditions, nor will Wallcur replace damaged Products due to weather.

B. Title and Risk of Loss. Until the purchase price and delivery costs for the Products have been paid to Wallcur, title to the Products purchased, notwithstanding delivery, shall remain in Wallcur. Wallcur shall be entitled to file a UCC-1 Financing Statement related to the Products for information purposes, or such other documentation as Wallcur shall deem necessary or appropriate, and you shall be required to execute such documents, if necessary, and to take such further actions as Wallcur may request to accomplish any such filing. Notwithstanding the foregoing, after the Products have been delivered F.O.B. Wallcur’s shipping point in San Diego, California, risk of loss, destruction or damage to the Products and liability for all other taxes, charges and expenses of any kind automatically shall transfer to you. Claims for damages or loss of goods during shipment shall be made by you solely against the carrier.

C. Nonconforming Products. You must notify Wallcur within 30 days from the invoice date of any nonconforming Products or any deficiencies or shortages, otherwise all such claims shall be deemed waived by you. The use by you of any Product claimed to be nonconforming or defective shall constitute acceptance of such Product by you. Unless Wallcur otherwise agrees in writing, you shall have no right to withhold payment or to adjust the amount of payment to Wallcur because of any such claim, and your sole remedy shall be replacement or repair by Wallcur of the nonconforming or defective Products, which remedy shall be in lieu of any right to consequential damages or any other remedy available under applicable laws; provided, however, that Wallcur shall have no obligation to replace or repair any such Products if you are in default under any agreement between you and Wallcur. Any Products delivered to you but not accepted shall be held and stored by you in a commercially reasonable manner, and Wallcur shall be given a reasonable amount of time to recover such Products at Wallcur’s expense.

D. Personal Property. Until Wallcur receives full payment of the purchase price from you, all Products shall remain personal property and shall not become fixtures or otherwise a part of any real property, regardless of the manner in which they may be placed upon, affixed or attached to real property.

E. Liens. Prior to full payment of the purchase price of any Product, you must not permit any lien, encumbrance or security interest to attach to the Products or be levied upon the Products under legal process and shall not dispose of the Products or permit anything to be done that may impair the value of the Products.

F. Warranty and Nonconforming Products.

i. Warranties. You agree and acknowledge Wallcur makes only a limited warranty with respect to the Products. You shall not make any representations or warranties regarding the Products except as provided in Wallcur's warranties for such Products, as established by Wallcur from time to time. Wallcur is providing to you only such warranties as are included with each Product.

ii. Disclaimer and Limited Warranty. Any description or sample of the Products shown to you or contained in Wallcur's promotional materials, brochures, advertisements, website or other marketing materials is for the sole purpose of identifying the Products, is not part of the agreement between Wallcur and you and is not a representation or warranty that the Products shall conform to that description or sample. You do not have any authority to bind Wallcur to any representation or warranty concerning the Products, except in strict compliance with the following:

a) Limited Warranty for Products. Wallcur warrants that the Products provided to you shall be free from defects in materials and workmanship for a period of 12 months from the date of delivery F.O.B. Wallcur’s shipping point in San Diego, California, subject to the following terms, conditions and limitations:

1. Wallcur's liability shall be limited exclusively to repair or replacement (in Wallcur's sole discretion) of Products determined by Wallcur to contain defects in materials and workmanship. If Wallcur determines the defects in the Products are not covered by this warranty, Wallcur shall charge you the standard repair and replacement charges of Wallcur then in effect;

2. Wallcur shall be liable for repair or replacement of the Products if you notify Wallcur of defects in such Products within the warranty period and immediately after such defect becomes or should have become known to you, whichever is earlier, and only if the repair or replacement work is performed by Wallcur or Wallcur's authorized representative;

3. Transportation charges for the defective Products to and from Wallcur shall be paid by you;

4. This warranty shall not apply to any damages to the Products in transit or by misuse, neglect, accident, improper installation, alterations or repairs made by anyone other than Wallcur, the manufacturer or their authorized representatives, or use or operation of the Products in any manner other than for the purpose for which the Products were reasonably intended to be used. You will not alter or modify the Products furnished by Wallcur. Any modification of or damage to the Products caused by you, whether by misuse, negligence, unauthorized repair, improper maintenance, accident or otherwise voids any service obligation and warranty of Wallcur;

5. This warranty is given only to you and is not transferable without the prior written consent of Wallcur and shall terminate immediately upon the sale or other disposition of the Product by you; and

6. This warranty shall not apply to any goods, products, accessories, attachments or parts furnished outside Wallcur’s agreement with you, and Wallcur shall have no responsibility for such items or the design, materials, workmanship or specifications of such items.

iii. Limitation on All Warranties. All warranties contained in this Agreement or any other agreement between Wallcur and you are made on the condition that you give Wallcur written notification of any alleged breach of warranty immediately after such alleged breach becomes or should have become known to you, whichever is earlier. Wallcur shall have the sole right to determine whether a breach of warranty exists.

THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF WALLCUR AND THE RIGHTS AND REMEDIES OF YOU ARE EXCLUSIVE, AND YOU WAIVE ALL OTHER WARRANTIES, OBLIGATIONS, LIABILITIES, RIGHTS AND REMEDIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR OR INTENDED PURPOSE, ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE, ANY OBLIGATION OR LIABILITY OF WALLCUR ARISING FROM DEFECTS IN MANUFACTURE, DESIGN OR USE OF THE PRODUCTS RESULTING IN DEATH OR BODILY INJURY TO PERSONS, INJURY TO PROPERTY OR ECONOMIC LOSS, LOSS OF USE, LOSS OF REVENUE OR LOSS OF PROFIT OR FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. NO PERSON IS AUTHORIZED TO EXPAND OR IN ANY MANNER MODIFY WALLCUR'S EXPRESS OBLIGATIONS DESCRIBED ABOVE.

G. Waiver of Consequential Damages. In no event shall Wallcur be liable for any special, incidental, indirect or consequential damages arising under tort, contract, strict liability or any other legal theories, including, without limitation, loss of profit or revenue, downtime costs, loss of use of the Products or costs for any substitute Products. This waiver shall remain in full force and effect despite failure of Wallcur's efforts to repair or replace defective Products pursuant to these terms and conditions. You understand Wallcur's waiver of liability for consequential damages is part of a bargain to lower the price of the Products, and you understands the price of the Products would be higher if Wallcur was required to bear consequential damages.

7. No Third-Party Beneficiaries. This Agreement shall not confer any rights or remedies under or by reason of this Agreement to or for the benefit of any person other than the parties to this Agreement.

8. Governing Law and Venue. This Agreement shall be governed by and construed under the laws of the State of California. Any action or proceeding in connection with or arising out of this Agreement shall be commenced and maintained only in the San Diego Judicial District, San Diego County, California.

9. Severability. Each provision of this Agreement is independent, separate and divisible, and in the event any provision of this Agreement is found by the final order of an arbitrator or a court of competent jurisdiction to be invalid, unenforceable or in contravention of any applicable federal or state law or regulation, such provision shall be deemed not to be a part of this Agreement and shall not affect the validity or enforceability of the remaining provisions. Nothing contained in this Agreement shall be construed so as to require the commission of any acts contrary to law, and wherever there is a conflict between any provision of this Agreement and any present or future law or regulation, such provision shall be limited to the extent necessary to make it comply with such law or regulation.

10. Attorneys’ Fees. If any party commences or is made a party to any litigation, arbitration or other proceeding to enforce, interpret or obtain a declaration of rights under this Agreement, the prevailing party in any such proceeding shall be entitled to recover from the other party reasonable attorneys' fees and costs incurred in connection with such proceedings, any appeal of such proceeding and the enforcement of any judgment obtained in such proceeding. Any judgment or order entered in any proceeding shall contain a specific provision providing for the recovery of attorneys' fees and costs incurred in enforcing such judgment or order. This attorneys' fees provision is intended to be severable from the other provisions of this Agreement, shall survive any judgment or order entered in any proceeding and shall not be deemed merged into any such judgment or order.