Terms and Conditions
These terms & conditions are hereby incorporated into any transaction involving the sale, lease, rental, loan or licensing of Products, as defined below, by myoscience, Inc.
“Authorized User” will mean a Licensed Physician or professional with substantial medical education and training who both: (a) possesses the training and qualifications required by applicable law to use the Products in accordance with this End User Agreement (the “Agreement”) and (b) will use the device under company supervision until all training required by myoscience, Inc. (“Company”) for the safe and proper use of the Products has been successfully completed within 90 days from Agreement execution and prior to reorder of Smart Tips.
“Country of Use” will mean the country to which a Product was originally shipped by Company to the customer (“Customer”).
“Licensed Physician” will mean a medical doctor in good standing that is licensed to practice medicine in the relevant jurisdiction at the time of the sale of the Products.
“Products” will mean all products, supplies, documentation, training and other items purchased from Company by Customer and may be new or refurbished. Company is under no obligation to continue the manufacture of any Product.
2. Purchase of Products. Customer agrees to purchase and use Products in accordance with this Agreement. The purchase price for Products will be as communicated by Company from time to time and is subject to change at Company’s sole discretion. Prices are exclusive of all taxes (including any excise, sales, use, value added, withholding and other taxes), import/export fees, customs duties and tariffs (“Taxes”), all of which will be Customer’s responsibility. If Company is required to pay any Taxes, Customer will reimburse Company for all amounts paid. All payments will be made by means acceptable to Company in accordance with Company’s then-current policies in.
3. Purchase Orders. This Agreement will exclusively govern all of Customer’s orders for Products and will supersede any terms and conditions contained in Customer’s purchase orders and other business forms, regardless of any failure of Company to object thereto. Customer will order all Products through a means acceptable to Company. No order will be binding on Company until accepted by Company in writing or Company ships the applicable Products.
4. Use of Products. (a) The Products will be used only by an Authorized User in the Country of Use. Any Authorized User who is not a Licensed Physician will use the Products only under the active supervision of a Licensed Physician. Allowing the use of any Products by any person other than an Authorized User who is, or is acting under the active supervision of a Licensed Physician may violate applicable law and may endanger patient safety. For purposes hereof, “active supervision” means having a Licensed Physician available during the performance of any procedure using the Products. (b) Customer will use, and will ensure that its employees and agents use, the Products only for their intended and approved uses and in accordance with this Agreement and all Company documentation and any updates thereto. (c) Customer will not sell, donate or otherwise transfer any Product to any third party, or export or re-export any Product or any Software contained therein, without Company’s prior written consent and without all necessary United States and foreign government consents and licenses. (d) Customer will not tamper with, modify or assist any third party in modifying any Product. Company reserves the right not to sell any Products necessary for the continued use of any Products previously purchased if Company believes the Products are being used in violation of this Agreement.
5. Adverse Events. Customer will promptly (and in any event within two days) report to Company’s Customer Service Department any malfunction of a Product or any injury arising out of use of a Product and provide all related information requested by Company.
6. Proprietary Rights. Company retains all proprietary rights, including all patents, copyrights and trade secrets, in and to all designs, engineering details and other technology and information pertaining to the Products. In furtherance of the foregoing, Company retains sole and exclusive ownership of all software included in or provided in connection with the Products (the “Software”), and Company hereby grants to Customer a non-exclusive, non-transferable license to use the Software as incorporated into, and solely for use in connection with, the Products in accordance with this Agreement. For clarity, the Software is licensed, and not sold, to Customer; any references to “sale” or “purchase” in this Agreement with respect to the Software mean the sale or purchase of such license. Customer will not (a) disassemble, decompile or otherwise reverse engineer the Software or any Product or (b) modify, copy, sell, rent, transfer, reproduce or distribute the Software. Upon at least 10 days notice, Customer will grant Company access to Products to install any new versions, updates or upgrades of the Software.
7. Trademarks and Advertising. Customer will comply with Company’s trademark and advertising guidelines made available with Company’s practice marketing kit and upon request. All goodwill derived from the use of Company trademarks will inure solely to the benefit of Company.
8. Delivery. Products will be shipped to Customer Ex Works (Incoterms 2010) Company’s shipping point, at which time title and risk of loss will pass to Customer. Customer will be responsible for all shipping, clearance and forwarding costs. Company will not be liable for any delay in delivery.
9. Training. Customer will ensure that Customer and its employees and agents are fully trained with respect to the Products, and that Customer and its employees and agents comply with all applicable laws and regulations, including those of medical agencies and certification boards. Customer will ensure that its Authorized Users attend all training offered by or on behalf of Company that relates to safe use of the Products.
10. Warranty. Company warrants to Customer that the Products will be free from significant manufacturing defects in materials and workmanship during the Company’s standard manufacturer’s warranty period stated on the Sales/Lease Order Request. The sole and exclusive remedy of Customer for Company’s breach of the foregoing warranty will be, at Company’s option, the repair or replacement of a confirmed defective unit and such replacement may be with new or refurbished units. Except with respect to confirmed defective Products in breach of the foregoing warranty, Company conveys no right of return to Customer and no returns will be accepted. The foregoing warranty is contingent upon proper use of the Products by trained and authorized personnel in their intended and approved uses, and the foregoing warranty will not apply to items that were modified or otherwise altered or changed without Company’s prior written approval, that were repaired by persons not authorized by Company, that were subjected to unusual physical, electrical or environmental stress or that were damaged during shipment to Customer. Except for the foregoing warranty, Company makes no warranty, express, implied or statutory, as to any matter whatsoever, including any warranty of merchantability, fitness for a particular purpose or non-infringement. The foregoing warranty applies only in favor of Customer who is the end user and original purchaser of the Products and is not transferable. Return of defective Products must be made according to Company’s then-current return goods authorization procedures. Company will not accept any returns of sterile Products if the original packaging has been tampered with or opened, without Company’s prior approval.
11. Limitation of Liability. Company’s total aggregate liability arising out of this Agreement will be limited to the amount of the purchase price for the Product in question. Under no circumstances will Company be liable for any incidental, consequential, indirect, exemplary, punitive or special damages, including damages for lost revenue, profits or business opportunities, the cost of procurement of substitute goods or services or other financial losses. These limitations apply even if Company has been advised of the possibility of such damages, notwithstanding any failure of essential purpose of any limited remedy and regardless of the theory of liability.
12. Term and Termination. This Agreement will commence on the date of the last signature below and will continue in force until Company gives notice of termination. Sections 4–7, 11, and 13–15 will survive any termination, as well as all payment obligations incurred prior to termination.
13. Dispute Resolution. Any claim or dispute arising out of or relating to a Product or this Agreement will be resolved by binding arbitration conducted in the English language by a single arbitrator in San Francisco, California in accordance with the International Arbitration Rules of the American Arbitration Association. Judgment upon the arbitration award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Pending final determination of a claim through arbitration, a party may seek interim or provisional relief from a court of competent jurisdiction as necessary to protect the rights or property of such party.
14. Indemnity. Each party will indemnify the other party against all liabilities, claims and expenses (including reasonable attorneys’ fees and other litigation expenses) incurred by that party against third parties arising from any breach or alleged breach of this Agreement by the respective party.
15. Miscellaneous. This Agreement sets forth the entire agreement of the parties regarding its subject matter, and supersedes all prior agreements and understandings relating to such subject matter. This Agreement will be governed by the laws of the State of California, U.S.A., without reference to principles of conflicts of law of any jurisdiction. This Agreement may not be assigned by Customer, by operation of law or otherwise, without Company’s prior written consent. Company has the right to assign this Agreement without notice or consent. Any attempted assignment in violation of the foregoing will be null and void. No amendment of this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing signed by both parties. If any provision of this Agreement is found to be invalid or unenforceable, the remainder of this Agreement will remain in full force and effect and be interpreted so as best to reasonably effect the intent of the parties.