Terms US

TERMS AND CONDITIONS ADDENDUM TO CUSTOMER PURCHASE AGREEMENT BETWEEN CUSTOMER AND COMPANY

Purchase Restrictions

• All Sales are final. Company grants no right of return to Customer for any purchased items.
• Due to continuing System improvements, prices and specifications set forth in the Customer Purchase Agreement are subject to change without notice.
• Company reserves and the Customer grants to Company, a security interest in any System sold, and all proceeds to secure full payment as required under the Customer Purchase Agreement. If Customer defaults or breaches any term of the Customer Purchase Agreement or this Addendum, Company has the unconditional and irrevocable right to enter Customer’s place of business or facility and retake possession of the System or any other purchased items. Customer further agrees that while any amount due on the System is owed by Customer to Company, Customer may not transfer, pledge, hypothecate, offer as collateral or encumber the System.

General Ownership Conditions and System Use

1. FOB Origin.Customer assumes title and control of the goods the moment the carrier signs the bill of lading. Customer assumes risk of transportation and is responsible for filing claims for loss or damage, and is responsible to obtain insurance for coverage of any claims for loss or damage which may occur during transportation.
2. Customer Responsibility for System Use, Results and Care.Company makes no representations or warranties regarding compliance with federal, state or local laws, rules or regulations, or medical or treatment guidelines that might apply to the sale, use or operation of the System. Company is not providing medical care, assistance or advice to Customer or its patients or clients. Customer has the sole responsibility for the supervision and provision of any medical and/or surgical case or other procedures performed through, in conjunction with, or by the use in any way, of the System. Customer agrees to indemnify, defend, protect and hold Company free and harmless from and against any and all claims, loss or liability (including but not limited to costs, damages, expenses, attorney’s fees and costs) that may arise through any claims for bodily injury, personal harm, death or other damage arising out of the use or operation of the System.
3. Company Limitation of Liability. Limitation of Company Liability: Customer understands and agrees Company’s liability shall not under any circumstances exceed the amount of the unit price stated in the Customer Purchase Agreement or paid by Customer to Company. Customer further understands that Customer shall be fully liable for all indirect, special, incidental, consequential or exemplary damages related to Customer’s use, operation, maintenance and handling of the System, including but not limited to incidental or consequential damages for injury to person or property, lost profits, lost sales or any other incidental or consequential loss, whether foreseeable or not and whether related to any actions or conduct by Customer, or Customer’s staff, assistants, contractors or employees.
4. System Restrictions and Purchase Authority. Federal, state or local law may restrict the sale of the System to or at the order of a physician, healthcare professional, dentist, veterinarian or other practitioner licensed in the state in which the System is used or ordered. Customer warrants and represents either that (a) Customer is a practitioner licensed by the law of the State in which the Customer practices to use, or order the use of, the System (an “Authorized Practitioner”), or (b) Customer is purchasing the System pursuant to a prescription or other order issued by an Authorized Practitioner, whose license type and applicable identifier (e.g., license number) have been provided to Company in writing.Customer is solely responsible for knowing the licensing requirements by any applicable state or federal governing board or regulatory body, with regard to the ownership, operation and use the System, including all procedures performed with the System, in the state in which the System will be used. Customer warrants and represents he/she/it has had opportunity to investigate such requirements, as well the opportunity to consult with legal counsel or independent advisers on these matters and is choosing to purchase the System based upon his/her/its own judgment, research and/or advice.  No communication (written or oral) that the Customer has received from Company, its parents, employees, principals, or agents shall be deemed to be an assurance or guarantee that Customer or anyone in Customer’s practice can legally operate or use the System and Customer is not relying on any such communication in choosing to purchase the System.Customer will ensure that, when necessary, the System will only be operated or utilized under proper supervision or at the required direction of a medical or health care practitioner in accordance with all applicable laws, rules and regulations. Customer accepts sole responsibility for ensuring that any operator of the System is licensed and qualified to use and operate the System safely and properly in a clinical setting and to perform medical procedures in accordance with all laws, rules, regulations and guidelines applicable to the System in the state in which the System will be used.Customer will hold InMode harmless from any and all claims, actions or liability related to any his or her purchase, or the operator’s use, of the System, stemming from licensing requirements, prescriptive authority, or legal ability to operate the System under any state or federal board rules, regulations or guidelines.
5. Software Licensing Term for System. The System purchased by Customer may require use of System specific software. If such software is required as part of Customer’s purchase of the System, Customer acknowledges and understands that Customer will be given a license by Company to use the System specific software solely on a license basis and Customer will be given no ownership rights, proprietary rights or intellectual property rights to the software or any program coding for the software. Customer’s use of the System software for any purpose other than operation of the System will be in violation of its license and Customer has no right to transfer, sell, encumber or alter the software or any of the software’s program coding. 6. No Assignment. Except as otherwise permitted by the Customer Purchase Agreement or as agreed by Customer and Company, the Customer Purchase Agreement is not transferable or assignable by Customer. 6. No Assignment. Except as otherwise permitted by the Customer Purchase Agreement or as agreed by Customer and Company, the Customer Purchase Agreement is not transferable or assignable by Customer.
6. Third Party Products. To the extent that Customer purchases certain products or equipment from third parties, whether or not any such products or equipment are procured or ordered by Company on behalf of Customer, the terms and conditions of such third party covering such products or equipment shall be applicable to and controlling on Customer. Any such third party products or equipment ordered through Company shall be sold to Customer directly from the applicable third party and Customer’s sole and exclusive warranty and remedies with respect to such products or equipment shall be set forth in Customer’s agreement with the applicable third party.
7. Termination of Use.Customer acknowledges that its use of the System is subject to compliance with the usage and other requirements described in the Customer Purchase Agreement (including, without limitation, the “System Restrictions” provision above). Customer’s authorization to operate the System and license to the software will terminate automatically in the event Customer fails to comply with such requirements. In such event, in addition to any other remedies available to Company under applicable law, Customer expressly agrees that Company will have the right to cease selling any System or associated items to the Customer, including but not limited to supplies and consumables.
8. Attorneys’ Fees and Costs.In the event Customer or Company bring any suit, action or other legal proceeding (including arbitration) relating to the subject matter, interpretation or enforcement of Customer Purchase Agreement or these Terms and Conditions, the prevailing party (as determined by the court, agency, arbitrator or other authority before which suit, action or legal proceeding or arbitration is commenced) shall, in addition to such other relief as may be awarded, be entitled to recover reasonable attorneys’ fees, expert witness fees, statutory and non-statutory expenses, costs of suit and investigation fees incurred (including, without limitation, reasonable attorneys’ fees, expert witness fees, expenses and costs incurred in appellate proceedings, in establishing the right to indemnification, or in any action or participation in, or in connection with, any case or proceeding under Chapter 7, 11, or 13 of the Bankruptcy Code, 11 U.S.C. 101 et seq. or any successor statutes).
9. Venue for all disputes.Customer agrees that in the event there is any dispute arising out of, or relating, to the Customer Purchase Agreement and these Terms and Conditions, the venue of any such dispute will be the State of Delaware, which shall have sole jurisdiction for any dispute.

 

Warranty Information

1. Limitation on Return of System or Goods.No System that is damaged, altered, improperly maintained, or used in a manner for which it was not intended or designed, will be accepted by Company upon return shipment without prior approval from Company’s Customer Care Department, which may be contacted at +1 (855) 411-2639. Authorization for any System return is at the sole discretion of Company. All returned Systems or associated items must be accompanied by a RETURN MATERIALS APPROVAL issued by Company from its Customer Care Department.
2. System Warranty.(a) Company warrants to the original purchaser of any System, except for laser consumable/accessories, that the System is free from defects in material and workmanship, upon shipment by Company. From the date of shipment, Company will warrant the System for a period of twelve (12) months so long as the System is used by Customer as instructed and pursuant to its operational guidelines. Such warranty shall include coverage for System defects, malfunctions, failures, or operational problems.(b) This warranty will become void and unenforceable if Customer improperly uses, operates, transports, maintains or alters the System. Fractora Resurfacing consumables and accessories are warranted for a period of thirty (30) days from the date of shipment. System replacement parts other than the items stated above that are purchased outside of this warranty period are warranted for a period of thirty (30) days from the date of shipment from Company.(c) No expressed or implied warranties are made by way of these Terms and Conditions other than as stated herein, and Customer acknowledges that any additional warranty coverage provided by Company must be memorialized in a writing from the Company whether it is for goods, products or services.
3. INMODE RF & IPL & LASER Handpiece Warranty. Company warrants that the handpiece is free from defect for a period of one (1) years or 100,000 pulses, whichever comes first. All other parts of the device are covered for the remainder of the original warranty. THE OBLIGATIONS OF COMPANY UNDER THIS WARRANTY ARE LIMITED, IN ITS EXCLUSIVE OPTION, TO REPAIR OR REPLACE PARTS AND MATERIALS WHICH PROVE TO BE DEFECTIVE. Any warranty stated herein is null and void a) where the System is unpacked, installed, serviced, and/or repaired by person(s) other than an authorized Company service representative; b) where service is required due to the Customer’s failure to operate or maintain the System in an manner consistent with the specifications and guidelines set forth in the System’s operator manual; and/or c) where service is required due to attempted or actual dismantling, disassembling, alteration, and/or modification of the System by person(s) other than an authorized Company service representative. Additional services, including, but not limited to telephone support, repair, maintenance, and refurbishment of equipment, may be purchased. THE FOREGOING WARRANTIES ARE THE SOLE AND EXCLUSIVE WARRANTY OBLIGATIONS OF COMPANY AND THE REMEDY PROVIDED ABOVE IS IN LIEU OF ANY AND ALL OTHER REMEDIES. THERE ARE NO OTHER AGREEMENTS, GUARANTEES, OR WARRANTIES, ORAL, WRITTEN, EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCTS, EQUIPMENT OR SERVICES ORDERED THROUGH COMPANY ON BEHALF OF CUSTOMER AND PURCHASED BY CUSTOMER FROM THIRD PARTIES. COMPANY SHALL NOT BE LIABLE FOR LOST PROFITS OR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES DUE TO ANY CAUSE WHATSOEVER EVEN IF ADVISED AS TO HE POSSIBILITY OF SUCH DAMAGES. THE CUSTOMER AGREES THAT COMPANY’s LIABILITY IS SO LIMITED.
4. Integration Clause.These Terms and Conditions and the Customer Purchase Agreement comprise all of the terms of agreement between the Customer and the Company and no other term, provision, or arrangement may be considered

 

Terms Applicable to Launch Events

Invasix, Inc. (“InMode”) has agreed to provide certain services (the “Services”) to the Practice identified as Customer (“Customer”) in the Onsite Sales Event document provided to Customer by InMode (the “Agreement”). The Agreement sets forth details of the Services InMode will provide to Customer to assist with Customer’s launch of the InMode device that has been purchased by Customer (the “System”). The Services are subject to the terms and conditions set forth below (the “Terms”):

1. Customer agrees and acknowledges that the Services are limited to those set forth in the Agreement.
2. InMode shall have no obligation to provide any Services until the System is paid for in full. Customer’s failure to pay for the System in full shall not extend or delay the Termination Date (as defined below).
3. The Agreement will expire nine (9) months from the date of the Agreement (the “Termination Date”). InMode may, at its sole discretion, agree to, but has no obligation to provide any Services after the Termination Date.
4. The Services have no cash or monetary value. Customer’s failure to procure the Services prior to the Termination Date shall not entitle Customer to any damages, monetary or otherwise, including, but not limited to, any refund, discount, or rebate of any portion of the purchase price paid for the System or for any future device purchase.
5. The Services are for the use and benefit of Customer only and may not be transferred or assigned to any other party. In addition, purchase of a System does not entitle a person or entity to the Services. Only persons or entities that have received an Agreement identifying that particular person or entity as a Customer are eligible to receive the Services.
6. Customer will provide all information and assistance required by InMode in order for InMode to provide the Services. InMode shall not be responsible for any delays in provision of the Services (including failure to provide the Services prior to the Termination Date) arising from Customer’s failure to provide information as and when requested. Customer understands and acknowledges that Customer’s failure to provide the cooperation required in this Section 6 will impact the Services.
7. The Services are provided “AS-IS”, and In Mode makes no representations, warranties, or guarantees regarding the Services or the results thereof. TO THE FULLEST EXTENT ALLOWABLE BY APPLICABLE LAW, INMODE DISCLAIMS AND EXCLUDES ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PURPOSE.
8. INMODE SHALL HAVE NO LIABILITY TO CUSTOMER FOR ANY DAMAGES, CLAIMS, EXPENSES, COSTS, OR OTHERWISE RELATED TO OR ARISING OUT OF THE SERVICES, INCLUDING BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES DUE TO ANY CAUSE WHATSOEVER EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. Customer shall hold harmless, indemnify and defend InMode and its affiliates and its and their respective employees, officers, shareholders, members, managers, agents, representatives, and insureds from all damages (including any damage to property or personal or bodily injury or death), claims, liabilities, costs, and expenses (including costs of defense and attorneys’ fees) arising from or connected with the Services or Customer’s or its employees, agents, representatives, or invitees acts or omissions.
10. The Agreement and the Terms set forth the entire understanding of InMode and Customer with respect to the subject matter hereof and entirely supersede all prior agreements, arrangements, and communications (whether written or oral) regarding such subject matter.
11. These Terms may be amended by InMode at any time without notice to Customer. Customer should check this link regularly to determine if any updates have been made.
12. The Agreement and these Terms shall be governed by and interested in accordance with the laws of the state of Delaware. Any dispute arising out or relating to the Agreement, the Services, or the Terms shall be determined by state or federal courts in the State of Delaware.

 

Terms Applicable to Upgrade Program

The following terms (the “Upgrade Terms”) are applicable to Customer’s purchase of the Define System at the discounted price as part of the Company’s program allowing Customer’s to upgrade from the Evoke System to the Define System at a reduced price (the “Upgrade Program”) as set forth in a Customer Purchase Agreement between Company and Customer. Company has sole discretion to determine whether a Customer may participate in the Upgrade Program.

1. Customer agrees and understands that once it has paid for the Evoke System in full, as consideration for the discount provided by Company to Customer for its participation in the Upgrade Program, Customer will immediately return the Evoke System to Company as directed by Company.
2. If Customer fails to return the Evoke System as provided above or in the event of a Revocation (as defined below), Customer agrees Company shall have the following remedies:
   1. Customer shall be in breach of the Agreement and Company shall have all rights against Customer under the Agreement due to such breach (including the right to enter Customer’s place of business or facility and retake possession of the Evoke System and/or the Define System), as well as any remedies available to Company in equity or at law;
   2. Customer shall be liable for all costs incurred by Company in retaking possession of the Evoke System and/or Define System, including any shipping or handling costs incurred by Company in returning the Evoke System and/or Define System to Company, and for any restocking fee charged by Company as determined by Company in its sole discretion; and
   3. Notwithstanding anything set forth in the Customer Purchase Agreement or herein to the contrary, within five (5) business days of Customer’s breach or the Revocation, as applicable, Customer will pay to Company the full retail price of the Define System (plus any applicable sales tax) as established by Company at the time of Customer’s breach or the Revocation, as applicable, rather than the discounted price provided as part of Company’s participation in the Upgrade Program.
3. Upon Company’s request, Customer shall provide Company proof of full payment of the Evoke System.
4. Customer hereby represents and warrants to Company that, upon the execution of the Agreement and thereafter, other than any financing obtained by Customer for the purchase of the Evoke System at the time of Customer’s original purchase of the Evoke System, the Evoke System does not have any lien or other encumbrance placed upon it, Customer has clear title to the Evoke System, and Customer will not take any action or omit to take any action that would result in a lien or encumbrance being placed upon the Evoke System or that would result in Customer no longer having clear title to the Evoke System. Upon return of the Evoke System to Company, Customer represents and warrants that all payments required to be made related to the Evoke System have been made, it has full and clear title to the Evoke System, and that there are no liens or other encumbrances upon the Evoke System.
5. Company may revoke Customer’s eligibility for the Upgrade Program, at its sole discretion, in any of the following situations (each a “Revocation”):
   1. If the Evoke System returned by Customer is, in Company’s sole discretion, unacceptable, including if it is damaged, not in good working order, or has more than normal wear or tear;
   2. If Customer sells or transfers the Evoke System to any party, fails to return the Evoke System as required under these Upgrade Terms, or, upon payment in full of the Evoke System, does anything with it other than return it to Company as required under these Upgrade Terms;
   3. If Customer makes any misrepresentation to Company, including any misrepresentation related to the Evoke System, its condition, its ownership or the payment status thereof;
   4. If Customer breaches any provision of the Agreement, including these Upgrade Terms;
   5. If Customer fails to provide proof satisfactory to Company as required under Section 3; or
   6. If Customer breaches any of the representations and warranties in Section 4.
6. Customer shall indemnify, hold harmless, and defend Company, its officers, directors, managers, members, agents, representatives, and insurers from and against any and all liabilities, claims, damages, causes of action, or expenses (including attorneys’ fees and other costs of defense) which arise out of or in connection with (a) Customer’s breach of these Upgrade Terms; (b) Customer’s noncompliance with applicable law; or (c) any third party’s claim that they have title to or rights in the Evoke System.