Sensory Medical, Inc. d/b/a Cubby Beds
Version 1.0 
Effective October 1, 2026

These terms apply to quotations, order acknowledgments, sales, shipments, and invoices for Cubby Beds products purchased by durable medical equipment dealers, distributors, resellers, providers, and other business purchasers. These terms do not apply to purchases by an individual for personal, family, or household use.

1.  Application of These Terms

1.1  Acceptance. These Standard Terms and Conditions of Sale (these "Terms") govern all quotations, order acknowledgments, Orders, sales, shipments, deliveries, and invoices for Products by Sensory Medical, Inc. d/b/a Cubby Beds, a Colorado corporation ("Cubby Beds"), to any purchaser ("Customer"). By submitting an Order after receiving or being directed to these Terms, accepting Cubby Beds’ quotation or order acknowledgment, accepting delivery of any Product, or paying any Cubby Beds invoice, Customer accepts and agrees to these Terms.

1.2  Business Purchasers Only. Products are sold under these Terms for resale, rental, or distribution to Customer’s customers and end users, or for Customer’s own business use. These Terms do not apply to a purchase by an individual for personal, family, or household use.

1.3  Order of Precedence. If Cubby Beds and Customer have a written agreement signed by authorized representatives of both parties governing the purchase of Products, that agreement controls to the extent it expressly conflicts with these Terms, and these Terms govern any matter the signed agreement does not address. Absent such a signed agreement, these Terms together with Cubby Beds’ written quotation or order acknowledgment constitute the entire agreement for the sale of Products.

1.4  No Other Terms. Cubby Beds objects to and rejects any additional or different term contained in Customer’s purchase order, request for quotation, terms of purchase, vendor portal, supplier registration, invoice-processing platform, or any other document or online interface, whether or not Cubby Beds acknowledges, references, performs against, or ships against it. No such term binds Cubby Beds unless an authorized officer of Cubby Beds agrees to it in a writing signed by both parties that expressly identifies the term and states the intent to supersede these Terms. Acknowledgment of an Order, shipment of Products, portal activity, acceptance of payment, or failure to object separately is not acceptance of Customer’s terms.

1.5  Changes to These Terms. Cubby Beds may revise these Terms at any time by posting a revised version at https://cubbybeds.com/pages/commercial-sale-terms-conditions. A revision applies only to Orders accepted on or after the effective date of that version. The version in effect on the date Cubby Beds accepts an Order governs that Order. Prior versions are available on request. 

2.  Definitions

2.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party, where "control" means ownership of more than 50% of the voting securities or the power to direct the management and policies of an entity. 

2.2 “Order” means a written purchase order (including purchase orders submitted electronically) submitted by Customer to Cubby Beds for Products in accordance with Section 3. 

2.3 “Products” means the products offered for sale by Cubby Beds, together with related parts, accessories, and embedded or accompanying software. 

2.4 “Specifications” means the written specifications, instructions for use, and technical requirements for the Products made available by Cubby Beds, as updated from time to time. 

2.5 “Territory” means the United States of America and all U.S. territories and possessions.

3.  Orders and Acceptance

3.1  Submission. Orders must be submitted in writing by email, EDI, or another method Cubby Beds designates, and must identify item numbers, quantities, ship-to address, and requested delivery date.

3.2  Acceptance. No Order is binding on Cubby Beds until Cubby Beds issues a written order acknowledgment or ships the Products. Cubby Beds may accept, decline, or partially accept any Order in its discretion.

3.3  No Verbal Orders. Cubby Beds will not fulfill verbal orders, and Customer will not place them. Cubby Beds accepts no liability for any shipment made on the basis of a verbal order.

3.4  No Minimum and No Exclusivity. Customer is not required to purchase any minimum quantity, and Cubby Beds is not required to reserve capacity or inventory. These Terms do not grant Customer any territory, exclusivity, right of appointment as a dealer or distributor, or right to any pricing beyond the Order accepted.

3.5  Changes, Cancellation, and Delay. Customer may request cancellation or change of an Order within 30 minutes of placing the order. Customer will pay for work performed, committed materials, noncancelable supplier obligations, freight, and other reasonable direct costs resulting from the cancellation or change, subject, where applicable, to the existing cancellation fee of 25% of the Order value, which Cubby Beds may waive in whole or in part in its discretion. After shipment, Orders may not be cancelled and are subject to Section 7. If Customer requests or causes delay, Cubby Beds may charge reasonable storage, handling, rescheduling, freight, and related costs.

4.  Pricing and Taxes

4.1  Prices. Prices are those set forth in Cubby Beds’ then-current published price list or written quotation applicable to Customer. Written quotations expire 90 days after issuance unless the quotation states otherwise.

4.2  Price Adjustments. Cubby Beds may adjust its list prices and any discount applicable to Customer at its discretion at any time, subject to restrictions in the event there is a written agreement to the contrary with the Customer. An adjustment applies prospectively only, to Orders accepted on or after its effective date. Orders already accepted but not yet shipped will be honored at the accepted price for 90 days following the adjustment.

4.3  Taxes. Prices exclude sales, use, excise, and similar taxes and any duties or levies. Customer is responsible for all such amounts unless Customer furnishes a valid exemption certificate acceptable to Cubby Beds before the Order is accepted. Customer will reimburse Cubby Beds for any such amount later assessed against Cubby Beds, together with related interest and penalties.

5.  Credit, Invoicing, and Payment

5.1  Credit Approval. All sales are subject to Cubby Beds’ credit approval. Cubby Beds may require financial information, trade references, prepayment, a deposit, a letter of credit, or a guaranty as a condition of acceptance, and may establish, reduce, suspend, or revoke a credit limit at any time in its discretion.

5.2  Invoicing. Except as otherwise stated in an order acknowledgment, Cubby Beds invoices Customer for each Order at the time the Products ship.

5.3  Payment Terms. Customer will pay each invoice in full within 30 days of the invoice date (Net 30), in U.S. dollars, without deduction, withholding, setoff, or recoupment unless Cubby Beds expressly states otherwise in its quotation, order acknowledgment, invoice, or any other purchasing agreement between parties. Customer may not unilaterally extend payment to 90 days or impose any other payment term through a purchase order, portal, policy, course of dealing, or other communication. Cubby Beds may assess a processing surcharge on payment card transactions where permitted by applicable law.

5.4  Late Payment. Past due amounts accrue interest from the due date at the lesser of 1.5% per month (18% per annum) or the maximum lawful rate. To the extent interest is unavailable or insufficient under applicable law, Cubby Beds may assess the maximum lawful late charge. Customer will reimburse Cubby Beds for all costs of collection, including reasonable attorneys’ fees, court costs, and collection agency fees.

5.5  Suspension of Performance. If any amount is past due, if Customer exceeds its credit limit, or if Cubby Beds revokes or reduces Customer’s credit, Cubby Beds may, without liability and in addition to its other remedies, withhold Products or shipments, suspend performance or cancel accepted Orders, require prepayment or other assurance of payment, and declare all outstanding amounts immediately due and payable. Cubby Beds may act immediately for nonpayment, insolvency, fraud, safety, recall, diversion, confidentiality, privacy or security, healthcare-program, or regulatory risk. For another breach, Cubby Beds may, in its discretion, allow a short period to cure before suspending performance or cancelling an Order.

5.6  Disputed Invoices. Customer may dispute a portion of an invoice by written notice to Cubby Beds within 30 days of the invoice date, together with reasonable supporting detail. The parties will use good-faith efforts to resolve the dispute within 15 days after Cubby Beds receives the notice. Customer will pay all undisputed amounts when due. No interest accrues on a disputed amount during good-faith resolution efforts. If payment of the resolved amount is not made within 10 days after resolution, interest accrues on that amount from the original due date at the rate in Section 5.4. Any invoice amount not disputed within 30 days is deemed correct and accepted.

5.7  No Setoff. Customer may not withhold, offset, or recoup any amount owed to Cubby Beds against any claim, including a warranty claim, a chargeback, a payer denial or recoupment, or a claim by an end user.

5.8  Security Interest. Cubby Beds retains a purchase-money security interest in each Product, and in the proceeds of its resale or rental, until the purchase price is paid in full. Customer authorizes Cubby Beds to file financing statements and any amendments necessary to perfect that interest and will execute any document Cubby Beds reasonably requests for that purpose.

6.  Shipping, Delivery, Title, and Risk of Loss

6.1  Shipping Charges. Unless otherwise stated in a quotation or order acknowledgment, standard ground freight is included in the Product price to a single destination within the continental United States excluding Alaska and Hawaii. Deliveries to Alaska or Hawaii, expedited freight, special handling, inside delivery, liftgate service, residential delivery, reconsignment, redelivery, and storage are billed to Customer at cost plus Cubby Beds’ standard handling charge.

6.2  Delivery Dates. All shipment and delivery dates are estimates. Cubby Beds will use commercially reasonable efforts to meet them but is not liable for any delay in shipment or delivery. Cubby Beds may ship an Order in installments and invoice each installment separately.

6.3  Title and Risk of Loss. Title to and risk of loss for the Products pass from Cubby Beds to Customer when the Products are loaded onto or tendered to the carrier for shipment at Cubby Beds’ shipping point (FOB Origin, Shipping Point), whichever occurs first. Customer is responsible for procuring adequate insurance for Products in transit and for filing any claim for loss or damage occurring after that transfer. Cubby Beds’ inclusion of freight in the Product price does not alter the passage of title or risk of loss or waive Cubby Beds’ security interest, right to payment, or other remedies.

6.4  Packaging. Cubby Beds will package the Products to reasonably protect them from damage in transit and is responsible for the cost of replacing and reshipping any Product damaged as a result of Cubby Beds’ defective or inadequate packaging.

6.5  Refused or Failed Delivery. If Customer or its designated recipient fails to accept delivery on the scheduled date, Customer is responsible for storage, return freight, redelivery, and any restocking fee under Section 7.4, and risk of loss remains with Customer.

6.6  Site Conditions. Where Cubby Beds or its designee performs delivery, assembly, or installation, Customer is responsible for confirming, in advance of scheduling, that the site has adequate access, clearance, floor space, and electrical service consistent with the Specifications, and that a responsible adult will be present. Customer is responsible for any charge arising from a rescheduled, aborted, or unsuccessful visit.

7.  Inspection, Rejection, and Returns

7.1  Inspection. Customer will inspect each shipment promptly and in any event within 10 business days of receipt.

7.2  Rejection. Customer will notify Cubby Beds in writing of any shortage, visible damage, mislabeling, or other nonconformity within 10 business days of receipt, with reasonable detail and supporting photographs. Failure to provide timely notice constitutes acceptance of the shipment and waiver of any claim of nonconformity, other than a claim for a latent defect covered by Section 8.

7.3  Return Authorization. No Product may be returned without a Return Material Authorization (“RMA”) issued by Cubby Beds and compliance with the warranty and returns terms incorporated under Section 8.1. Returned Products must bear the RMA number, be complete, and be shipped in original or equivalent protective packaging. Cubby Beds may refuse or return, at Customer’s expense, any Product received without an RMA. 

7.4  Non-Defective Returns. Subject to the warranty and returns terms incorporated under Section 8.1, Cubby Beds may, in its discretion, accept the return of an unused, non-defective Product within 30 days of shipment, subject to a restocking fee of 25% of the Product price plus return freight. Used Products and Products that have been placed with an end user are not returnable.

7.5  Sole Remedy. Customer’s remedies for nonconforming or defective Products are limited to those set forth in Section 8.

8.  Limited Warranty

8.1  Warranty and Returns Terms. Cubby Beds’ warranty and returns policy available at https://cubbybeds.com/pages/warranty-and-returns is incorporated into these Terms by reference. The version posted on the date of the applicable Order governs the Products purchased under that Order. Cubby Beds may update the policy prospectively, but an update will not retroactively modify the warranty or return rights applicable to a previously accepted Order. Prior versions are available on request.

8.2  Exclusive Remedy. Cubby Beds’ sole obligation, and Customer’s exclusive remedy, for breach of the warranty incorporated under Section 8.1 is, at Cubby Beds’ cost and election, repair or replacement of the nonconforming Product or refund of the price paid for the affected Product. Cubby Beds may use new, refurbished, or functionally equivalent parts. Repair or replacement does not extend the applicable warranty period beyond the greater of the remaining warranty period or 90 days from the date of repair or replacement.

8.3  DISCLAIMER. THE WARRANTY IN THIS SECTION 8 IS THE ONLY WARRANTY CUBBY BEDS MAKES AND IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. CUBBY BEDS DOES NOT WARRANT THAT ANY PRODUCT WILL PREVENT INJURY, ELOPEMENT, OR ANY OTHER OUTCOME.

8.4  Product Changes. Cubby Beds may modify a Product’s design, components, software, packaging, suppliers, or Specifications, substitute functionally equivalent components, and discontinue Products or features, provided that a change will not materially reduce core functionality stated in an accepted quotation except as reasonably required for safety, security, legal compliance, supplier availability, or obsolescence. Cubby Beds has no obligation to retrofit previously delivered Products except as required by law or the applicable warranty.

9.  Connected Features and Software

9.1  License. Cubby Beds grants Customer a limited, non-exclusive, non-transferable, revocable license to use the software embedded in or supplied with the Products, including any mobile or web application, solely in connection with the Products and in accordance with the Specifications. Software is licensed, not sold, and Cubby Beds and its licensors retain all right, title, and interest in it. Customer may sublicense end-user access solely to the extent necessary for an end user to use a Product purchased from Customer, subject to Cubby Beds’ then-current end-user terms.

9.2  Customer-Supplied Requirements. Camera, sensor, lighting, monitoring, alert, application, and other connected features may incorporate or depend on third-party hardware, software, networks, platforms, or services and require continuous electrical power and internet connectivity supplied by Customer or the end user meeting the Specifications. Cubby Beds does not supply, control, or guarantee the availability, security, speed, compatibility, or reliability of those inputs or third-party services.

9.3  No Life-Safety Reliance. The monitoring, sensor, and notification features of the Products are convenience features. They are not a medical alarm, emergency response system, nurse call system, or life-safety device, and they are not a substitute for direct supervision, caregiving, or professional medical care. Cubby Beds does not monitor any Product and does not guarantee the accuracy, transmission, receipt, or timeliness of any alert or notification. Customer will communicate the limitations in this Section 9.3 to each end user and will not represent otherwise in any marketing, training, or sales material.

9.4  Availability and Changes. Cubby Beds does not guarantee uninterrupted or error-free operation of any connected feature and may modify, update, suspend, or discontinue any feature, and may take services offline for maintenance, at any time. Cubby Beds may immediately suspend connected services for safety, security, legal, vendor, or network risk and otherwise will provide reasonable notice of a material discontinuation where practicable. Cubby Beds may discontinue support for a software version or hardware generation upon notice.

9.5  IoT Content and Data. Products may include third-party Internet-of-Things components or services, including cameras, lighting, sensors, monitoring, alerts, applications, and connected services. Except as expressly stated in the Specifications, an applicable end-user agreement, or Cubby Beds’ privacy notice at https://cubbybeds.com/policies/privacy-policy, Cubby Beds does not host, access, receive, control, monitor, or assume responsibility for end-user video, audio, images, alerts, credentials, communications, or other content or data generated by or transmitted through those components or services. Customer and each end user are responsible for securing their credentials, accounts, networks, configurations, and access controls; installing critical updates promptly; providing required notices and consents; complying with third-party terms and applicable privacy and recording laws; promptly notifying Cubby Beds of any suspected security incident affecting a Product or connected feature; and not circumventing security controls. Cubby Beds is not responsible for unsupported versions, unauthorized configurations, or Customer- or end-user-controlled systems.

10.  Customer Obligations

10.1  Obligations. Customer will: (a) market, sell, rent, ship, and distribute the Products solely within the Territory, and not sell, ship, export, divert, or otherwise make a Product available for use outside the Territory without Cubby Beds’ express prior written approval; (b) provide each end user with all literature, manuals, warnings, instructions for use, and warranty information supplied by Cubby Beds, in the form supplied; (c) not make any alteration to a Product, its packaging, or its labeling, and not repackage or private-label any Product; (d) not offer any end user a warranty on the Products other than the end-user warranty published by Cubby Beds; (e) notify Cubby Beds within 72 hours of any complaint, event, or regulator contact involving death, serious injury, fire, entrapment, elopement, or an immediate safety hazard, and report any other complaint or alleged malfunction or Product deficiency within a reasonable time period; preserve the Product, packaging, photographs, logs, records, and relevant device information; cooperate with Cubby Beds’ investigation; and not alter, destructively test, independently field-correct or recall a Product, or communicate with a regulator concerning a Product, without coordinating with Cubby Beds unless required by law; (f) maintain records sufficient to trace each Product by serial number to the end user to whom it was sold, rented, or delivered, retain those records for at least the longer of two years or the period required by applicable law, and provide the information to Cubby Beds within a prompt period of time; (g) maintain all licenses, registrations, enrollments, and accreditations required to sell, rent, service, and deliver the Products, and employ personnel trained on the Products; and (h) not offer or sell any Product through an online marketplace or third-party e-commerce platform without Cubby Beds’ prior written consent.

10.2  Restrictions and Authorized Use. Customer will not, and will not permit any third party, including any end user, to (a) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code, design, or underlying algorithms of any Product; (b) remove, alter, or obscure any patent, trademark, serial number, warning, or other proprietary notice or labeling on a Product; (c) modify, adapt, or create derivative works of a Product without Cubby Beds’ prior written consent; or (d) use a Product for any purpose other than its intended and authorized use in accordance with the Specifications, labeling, accompanying instructions for use, and applicable law. Customer is responsible for appropriate Product selection, placement, assembly, installation, operation, maintenance, and end-user instruction to the extent performed or controlled by Customer.

10.3  Trademarks. Cubby Beds grants Customer a limited, non-exclusive, revocable right to use Cubby Beds’ names, logos, and trademarks solely to market and resell Products purchased from Cubby Beds, and only in accordance with Cubby Beds’ brand guidelines as provided from time to time. Customer will not register or attempt to register any Cubby Beds mark, or any confusingly similar mark, domain name, social media account, or application name. All goodwill from Customer’s use inures to Cubby Beds. Except as stated in this Section 10.3 and Section 9.1, these Terms grant Customer no license to any Cubby Beds intellectual property.

10.4  Audit and Certification. Upon reasonable notice and during normal business hours, Cubby Beds may reasonably audit relevant records and practices, or require certification, concerning Customer’s licenses, exclusions, Product traceability, complaints, training, discount and rebate reporting, Territory restrictions, online sales, and compliance with Sections 10 through 14. No advance notice is required for an urgent safety, fraud, recall, or regulatory matter. Audits will use minimum-necessary, redacted, or de-identified information where reasonably practicable to protect protected health information and other sensitive information.

11.  Reimbursement and Payer Compliance

11.1  No Reimbursement Guarantee. Cubby Beds makes no representation or warranty regarding the coverage, coding, reimbursement, or payment of any Product by Medicare, Medicaid, a managed care organization, a commercial payer, or any other third party. Any coding reference, template, letter of medical necessity, or similar reimbursement-support material Cubby Beds provides is general information only, is not coding, billing, reimbursement, or legal advice, and must be independently verified. Cubby Beds is not Customer’s billing agent, fiduciary, joint venturer, or claims submitter. Customer may not alter or use such material inaccurately. 

11.2  Customer Responsibility. Customer is solely responsible for its own payer enrollment, licensure, and accreditation, for determining and documenting medical necessity, for selecting and substantiating codes, for obtaining prior authorization, for collecting required documentation, and for the accuracy and completeness of every claim it submits.

11.3  Payment Not Contingent. Customer’s obligation to pay Cubby Beds is absolute and is not contingent on Customer’s receipt of reimbursement or payment from any payer, referral source, or end user. Customer bears sole responsibility for any denial, recoupment, offset, audit finding, penalty, or overpayment determination relating to a claim it submits.

11.4  Discounts and Rebates. Cubby Beds may offer bona fide volume-based or other discounts or rebates only where lawful. A rebate is earned only when its stated conditions are satisfied. Customer will retain supporting documentation and accurately disclose and report each discount, rebate, credit, free item, or other price reduction as required to Medicare, Medicaid, other federal or state health care programs, commercial payers, patients, and any other person or entity entitled to that information, and will reflect its actual net acquisition cost in claims, cost reports, invoices, and other submissions whenever required by applicable law, contract, or payer rule. Cubby Beds may offset a rebate against overdue amounts and withhold or recoup a rebate for noncompliance. Any discount or rebate is conditioned on compliance by Customer and Cubby Beds with applicable requirements of the federal Anti-Kickback Statute discount safe harbor and other applicable law, including documentation, disclosure, and reporting requirements. No discount, rebate, or other remuneration is offered or may be used to induce or reward an unlawful referral, recommendation, purchase, lease, order, or arrangement for business.

11.5  Prohibited Billing Conduct. Customer will not alter or falsify any Cubby Beds invoice or documentation; bill more than once for the same Product or transaction; submit a false, duplicate, misleading, or unsupported claim; misrepresent acquisition cost, price, discount, rebate, delivery, medical necessity, coding, or other material fact; manipulate reimbursement; or request that Cubby Beds issue or endorse an inaccurate invoice, certificate, letter, or other record. Customer will not engage in conduct that could make Cubby Beds complicit in fraud, waste, abuse, a kickback, a false claim, or deception of any payer, patient, or government authority.

11.6  Compliance Remedies. Cubby Beds may refuse any request or transaction, withhold documentation or shipment, suspend performance, or terminate an Order or commercial relationship if it reasonably suspects conduct prohibited by this Section 11. Customer will maintain complete and accurate supporting records and cooperate with lawful audits and inquiries. Cubby Beds may preserve and disclose relevant information, cooperate with payers or governmental authorities, and make reports when required or otherwise legally appropriate, subject to applicable privacy and confidentiality law.

12.  Regulatory and Legal Compliance

12.1  Cubby Beds Responsibility. Cubby Beds is responsible for regulatory compliance concerning the Products as manufacturer, including applicable FDA registration and listing, adverse event reporting, and complaint handling.

12.2  Customer Representations. Customer represents, warrants, and covenants that (a) neither Customer nor any of its officers, directors, employees, or agents is excluded, debarred, suspended, or otherwise ineligible to participate in any federal or state health care program, and Customer will notify Cubby Beds in writing promptly if this ceases to be true; (b) Customer will comply with the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)), the federal False Claims Act, and analogous state anti-kickback, false-claims, self-referral, and fee-splitting laws, and will not offer, pay, solicit, or receive any remuneration, directly or indirectly, in cash or in kind, in exchange for referring, recommending, purchasing, leasing, ordering, or arranging for the purchase, lease, or order of any Product in violation of applicable law; (c) Customer will comply with the U.S. Foreign Corrupt Practices Act and other applicable anti-corruption laws, and with applicable labor, environmental, and equal opportunity laws; and (d) Customer will comply with all other laws applicable to its purchase, resale, rental, delivery, servicing, and billing of the Products.

12.3  Anti-Diversion and Export. Customer will comply with all applicable U.S. export control, anti-boycott, and economic sanctions laws and will not export, re-export, or divert any Product, directly or indirectly, outside the Territory or to any restricted party or destination.

13.  Recalls and Field Corrective Actions

13.1  Responsibility. Cubby Beds is solely responsible for any recall, field corrective action, or market withdrawal relating to a Product’s design, manufacture, or labeling and will bear the direct costs of that action, except that Cubby Beds is not liable for Customer’s indirect or consequential damages, including lost sales, lost profits, or lost rental revenue. Cubby Beds is not responsible for costs of a recall or corrective action to the extent it arises from Customer’s alteration, improper storage, improper handling, improper installation or servicing, or breach of these Terms.

13.2  Cooperation. The parties will cooperate in good faith in connection with any recall or field corrective action. Upon Cubby Beds’ request, Customer will promptly cease distribution of the affected Products, withdraw them from circulation, notify affected end users as directed, and provide traceability information under Section 10.1(f) within five business days.

14.  Intake Information, Privacy, and PHI

14.1  Intake Information. In connection with product intake, order processing, support, safety, or reimbursement assistance, Cubby Beds may collect personal information that is sensitive or potentially health-related. Cubby Beds will use reasonable administrative, technical, and physical safeguards appropriate to the sensitivity of that information and will treat potentially health-related intake information with protections appropriate for Protected Health Information (“PHI”) from the outset, consistent with the privacy notice identified in Section 9.5 and applicable law.

14.2  HIPAA Status and Disclosures. The parties acknowledge that PHI status and the application of the Health Insurance Portability and Accountability Act, as amended (“HIPAA”), depend on the facts and applicable law. Nothing in these Terms represents that Cubby Beds is a HIPAA covered entity or business associate for every transaction. Customer will disclose to Cubby Beds only the minimum information reasonably necessary for the applicable purpose, through channels Cubby Beds authorizes, and will obtain all authorizations and provide all notices required for the disclosure.

14.3  Business Associate Agreement. If and to the extent Cubby Beds performs a function that legally requires it to act as Customer’s business associate, the parties will execute an appropriate Business Associate Agreement before the applicable PHI is disclosed or handled for that function. Nothing in these Terms modifies, supersedes, or limits any Business Associate Agreement executed by the parties. If a conflict arises between these Terms and an executed Business Associate Agreement with respect to PHI, that agreement controls. 

15.  Confidentiality

15.1  Obligation. Customer will treat as confidential all non-public information of Cubby Beds disclosed in connection with the purchase, resale, or support of Products, including pricing, discounts, quotations, Specifications, product roadmaps, engineering and manufacturing information, customer and referral information, and business methods (“Confidential Information”). Customer will use Confidential Information solely to purchase, resell, rent, and support the Products, will protect it with at least a reasonable degree of care, and will not disclose it to any third party except to personnel and professional advisors who need to know it for that purpose and who are bound by obligations at least as protective as this Section 15.

15.2  Exclusions and Compelled Disclosure. Confidential Information excludes information that is or becomes public through no breach of these Terms, was lawfully known to Customer without obligation of confidence before disclosure, or is independently developed by Customer without use of Cubby Beds’ Confidential Information. If Customer is compelled by law or legal process to disclose Confidential Information, it will, where legally permitted, give Cubby Beds prompt written notice sufficient to allow Cubby Beds to seek a protective order and will disclose only the portion legally required.

16.  Indemnification

16.1  Customer Indemnity. Customer will defend, indemnify, and hold harmless Cubby Beds, its Affiliates, and their respective directors, officers, employees, and agents from and against third-party claims and resulting losses, damages, liabilities, and reasonable expenses, including attorneys’ fees, to the extent arising from (a) Customer’s breach of these Terms; (b) Customer’s negligence or willful misconduct; (c) any representation, warranty, or commitment Customer makes concerning a Product beyond those published by Cubby Beds; (d) Customer’s assembly, installation, modification, servicing, storage, handling, or unauthorized use of a Product; (e) Customer’s billing, coding, claims submissions, discount or rebate reporting, or other conduct addressed in Sections 11 and 12; (f) Customer’s or an end user’s unlawful collection, recording, access, disclosure, or use of IoT content or data; or (g) Customer’s failure to provide an end user with the literature, warnings, or instructions for use supplied by Cubby Beds.

16.2  Cubby Beds Infringement Indemnity. Cubby Beds will defend and indemnify Customer against a third-party claim that a Product, as supplied by Cubby Beds and used as authorized, infringes a U.S. patent, trademark, or copyright, and will pay damages finally awarded against Customer or amounts Cubby Beds agrees in settlement. This obligation does not apply to a claim arising from (a) combination of a Product with any product, component, or service not supplied by Cubby Beds; (b) modification of a Product; (c) use of a Product outside the Specifications; (d) Customer’s continued use after Cubby Beds notifies Customer to stop; or (e) Cubby Beds’ compliance with Customer’s designs, specifications, or instructions. If Cubby Beds reasonably believes a Product is or is likely to become the subject of such a claim, Cubby Beds may at its option and expense (i) procure the right for Customer and end users to continue using the affected Product, (ii) modify or replace the affected Product or component with a functionally equivalent, non-infringing item, or (iii) if neither is reasonably available on commercially reasonable terms, require return of the affected Product and provide a pro-rata refund of the price paid, calculated on a straight-line basis over 36 months from delivery. This Section 16.2 states Cubby Beds’ entire liability and Customer’s exclusive remedy for any claim of infringement.

16.3  Procedure. The indemnified party will give the indemnifying party prompt written notice of the claim and reasonable cooperation at the indemnifying party’s expense. The indemnifying party will have sole control of the defense and settlement, provided that it may not settle a claim in a manner that admits liability by, imposes any obligation on, or fails to unconditionally release the indemnified party without the indemnified party’s prior written consent.

16.4  Insurance. Customer will maintain commercially reasonable insurance appropriate to its activities, including commercial general liability with products-completed operations coverage, workers’ compensation as required by law, automobile liability where Customer delivers or installs Products, and cyber/privacy liability where Customer handles connected-Product or sensitive data. Customer will provide evidence of coverage on request. Cubby Beds may approve alternative limits or coverage in writing.

17.  Limitation of Liability

17.1  Exclusion of Indirect and Commercial Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUBBY BEDS WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR OTHER INDIRECT DAMAGES, OR FOR ANY LOST PROFITS, LOST REVENUE, LOST SALES, LOST RENTAL INCOME, BUSINESS INTERRUPTION, LOSS OF USE, LOSS OF DATA, LOSS OF GOODWILL, COST OF SUBSTITUTE GOODS, OR COMMERCIAL LOSS RELATING TO DELAYED, LOST, OR DAMAGED GOODS, ARISING OUT OF OR RELATING TO THESE TERMS, ANY ORDER, OR ANY PRODUCT, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF CUBBY BEDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

17.2  Commercial Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUBBY BEDS’ TOTAL AGGREGATE LIABILITY FOR CONTRACTUAL OR COMMERCIAL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS, ANY ORDER, OR ANY PRODUCT WILL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO CUBBY BEDS FOR THE PRODUCTS THAT ARE THE SUBJECT OF THE CLAIM.

17.3  Exceptions and Nonwaivable Liability. Sections 17.1 and 17.2 do not apply to Cubby Beds’ obligations under Section 13.1 or Section 16.2; to liability for bodily injury, death, or damage to tangible property to the extent caused by a defect in a Product as manufactured by Cubby Beds and imposed under applicable product-liability law; or to any other liability that cannot lawfully be limited or excluded, including liability for gross negligence, willful misconduct, or fraud. Nothing in these Terms disclaims any product-liability obligation that applicable law does not permit Cubby Beds to disclaim.

17.4  Limitations Period. Any claim arising out of or relating to these Terms, an Order, or a Product must be commenced within one year after the cause of action accrues, or it is permanently barred, except for a claim for nonpayment.

17.5  Basis of the Bargain. The limitations and exclusions in this Section 17 and the warranty disclaimer in Section 8 reflect an agreed allocation of risk that is reflected in the price of the Products, are an essential basis of the bargain between the parties, and apply even if any limited remedy is found to have failed of its essential purpose.

18.  Force Majeure

18.1  Excused Performance. Except for payment obligations, neither party is liable for any delay or failure to perform caused by an event beyond its reasonable control, including act of God, fire, flood, severe weather, earthquake, epidemic or pandemic, war, terrorism, civil unrest, labor dispute, strike, government action or order, embargo, sanctions, carrier or port delay, utility or telecommunications failure, cyberattack, and shortage or unavailability of materials, components, labor, or transportation.

18.2  Effect. The affected party will give prompt notice and use commercially reasonable efforts to resume performance. During any such event, Cubby Beds may allocate available Products among its customers in a manner it determines to be fair and reasonable. If the event continues for more than 90 days, either party may cancel the affected Order without liability, other than for Products already shipped.

19.  Suspension and Cancellation

19.1  Cubby Beds Rights. Cubby Beds may, without liability, refuse an Order, suspend performance, withhold shipment or documentation, or cancel any accepted Order if Customer breaches these Terms, is past due on any amount, exceeds its credit limit, becomes insolvent, makes an assignment for the benefit of creditors, or becomes subject to a bankruptcy or receivership proceeding, or if Cubby Beds reasonably believes Customer is violating applicable law, engaging in fraud or conduct prohibited by Section 11, creating a safety, recall, confidentiality, privacy or security, healthcare-program, or regulatory risk, or diverting Products outside the Territory. Cubby Beds may act immediately in any such circumstance involving nonpayment, insolvency, fraud, safety, recall, diversion, confidentiality, privacy or security, healthcare-program, or regulatory risk and may, in its discretion, allow a short cure period for another breach.

19.2  Accrued Obligations. Suspension or cancellation does not relieve Customer of any obligation accrued before its effective date, including payment for Products already shipped.

20.  Governing Law, Venue, and Jury Waiver

20.1  Governing Law. These Terms and each Order are governed by the laws of the State of Colorado, without regard to its conflict-of-laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply.

20.2  Venue. The parties consent to the exclusive jurisdiction and venue of the state and federal courts located in Denver, Colorado for any dispute arising out of or relating to these Terms, an Order, or a Product, and each party waives any objection to personal jurisdiction or venue in those courts.

20.3  Jury Waiver. EACH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THESE TERMS, ANY ORDER, OR ANY PRODUCT.

20.4  Equitable Relief. Cubby Beds may seek injunctive or other equitable relief, without the necessity of posting a bond, for a breach or threatened breach of Section 10.2, Section 10.3, or Section 15.

21.  General

21.1  Notices. Notices to Cubby Beds must be in writing and delivered to Sensory Medical, Inc. d/b/a Cubby Beds, 1580 N Logan St, Suite 500, Denver, CO 80203, Attn: Legal, with a copy by email to accounts@cubbybeds.com. Notices to Customer may be delivered to the mailing address or email address of record on Customer’s account. Notice by email is effective on transmission absent a delivery failure message.

21.2  Assignment. Customer may not assign these Terms or any Order, in whole or in part, without Cubby Beds’ prior written consent, including by operation of law or in connection with a change of control. Cubby Beds may assign these Terms or any Order to an Affiliate or to a successor in connection with a merger, acquisition, or sale of substantially all of its assets. Any attempted assignment in violation of this Section is void. 

21.3  Independent Contractors. The parties are independent contractors. Nothing in these Terms creates a partnership, joint venture, franchise, agency, or employment relationship. Customer has no authority to bind Cubby Beds or to make any commitment on its behalf.

21.4  No Third-Party Beneficiaries. These Terms are for the benefit of Cubby Beds and Customer only. No end user, patient, caregiver, payer, referral source, or other person has any right, claim, or cause of action under these Terms.

21.5  No Waiver. No failure or delay by Cubby Beds in exercising any right under these Terms operates as a waiver of that right, and no waiver is effective unless in a writing signed by Cubby Beds.

21.6  Severability. If any provision of these Terms is held invalid or unenforceable, that provision will be modified to the minimum extent necessary to make it enforceable, and the remaining provisions remain in full force and effect.

21.7  Survival. Sections 1, 2, 4.3, 5, 7, 8, 9, 10.1(e)–(f), 10.2, 10.3, 10.4, 11, 12, 13, 14, 15, 16, 17, 20, and 21 survive completion of any Order and any suspension or cancellation.

21.8  Entire Agreement. These Terms, together with Cubby Beds’ applicable quotation, order acknowledgment, and invoice and any written agreement signed by authorized representatives of both parties, constitute the entire agreement regarding the sale of Products and supersede all prior and contemporaneous agreements, proposals, and communications, oral or written, regarding that subject matter.

21.9  Interpretation. Section headings are for convenience only and do not affect interpretation. "Including" means including without limitation. References to a number of days mean calendar days unless business days are specified. No rule construing ambiguities against the drafter or similar concept shall apply to these Terms.

Version history

Version 1.0 · Effective upon publication · Initial publication. Prior versions of these Terms are retained and available on request.

Sensory Medical, Inc. d/b/a Cubby Beds, 1580 N Logan St, Suite 500, Denver, CO 80203.