TERMS AND CONDITIONS ADDENDUM TO CUSTOMER PURCHASE AGREEMENT BETWEEN CUSTOMER AND COMPANY
• 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 Use1. 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 federal, state or local laws, rules or regulations, or medical or treatment guidelines that might apply to the use and operation of the System. Company is not providing medical care or 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 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 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 acknowledges that Customer is authorized by law to make the System purchase and 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 is also solely responsible for the use and operation of the System in accordance with all medical and treatment guidelines and for ensuring that any operator of the System is adequately trained 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.
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.
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 Information1. 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 MERCHANT ABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 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 THE 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 part of these Terms