1. Sale. When signed by Buyer and by Lumenis Inc. (“Seller”), for itself and for Lumenis Ltd. (“LTD”), this Purchase Agreement (this “Agreement”) shall be a binding contract for the purchase and sale of the products (collectively, the “Equipment”) and/or services described in the Lumenis Sales Quotation. This Agreement consists of the Lumenis Sales Quotation (“Quote”), the Prescription Medical Device Notice above and these Terms and Conditions.
2. Acceptance. Buyer shall be deemed to have accepted the Equipment and agreed that the Equipment is free from defects in materials and workmanship and conforms in all material respects to LTD’S and Seller’s technical specifications either: (a) on the date of installation for Equipment requiring installation or (b) on the date of delivery for Equipment not requiring installation. In clarification of the foregoing, if Seller does not install the Equipment and the Equipment is shipped in installments, Buyer shall be deemed to have accepted the Equipment on the date of delivery of the last installment of Equipment.
3. Prices and Payment. All prices are subject to change in the event of untimely payment by Buyer. Payment is due: (a) net 30 days from the date of invoice of the Equipment. Accounts 30 days or more past due shall accrue interest at the rate of 18% or, if less, the maximum rate permitted by law. Deposits are non-refundable.
4. Security Agreement. To secure the purchase price, Buyer hereby grants Seller a purchase money security interest in the Equipment, and the proceeds thereof, purchased pursuant to this Agreement. Buyer grants Seller a limited power of attorney, coupled with an interest, to execute financing statements and other documents or to take any other action in the name of Buyer necessary to perfect the security interest granted herein. Buyer unconditionally agrees to execute such other or additional documents as may be necessary for the enforcement or protection of Seller’s security interest granted herein.
5. Taxes and Other Charges. Buyer shall pay all taxes, fees, duty, levy, or charges imposed by any governmental authority. Applicable sales taxes will be invoiced unless Buyer supplies a valid tax-exempt certificate prior to delivery.
6. Delivery and Claims. For all purposes of this Agreement, title and risk of loss shall pass to Buyer, and delivery shall be deemed completed, upon Seller’s tender of the product to a common carrier. All shipments are fully insured for the benefit, and at the expense, of Buyer. In the event of loss or damage in transit, Buyer’s payment obligations will not be affected and Seller will act as Buyer’s agent in making any necessary insurance claim. All delivery dates are approximate. Seller will deliver in one shipment when possible, but reserves the right to make delivery in installments, if necessary.
7. Changes to Products. Seller may from time to time change the design or construction of the Equipment. In the event the product and model purchased hereunder is changed prior to shipment, Seller shall notify Buyer, and Buyer shall be entitled to accept the changed Equipment or cancel this Agreement as to that product only and receive a refund of any monies paid to LTD or Seller in respect thereof. The foregoing shall be Buyer’s sole remedy for any change to the Equipment purchased hereunder prior to delivery, and LTD and Seller shall have no other liability whatsoever for any such change.
8. Software License. Seller grants to Buyer a limited, non-transferable, non-sublicensable license to use the software embedded in the Equipment (the “Software”) and any associated documentation provided hereunder by Seller to Buyer solely for internal use in connection with the Equipment purchased hereunder. Buyer shall not make any copies of the Software. The sole remedy for breach of this Section shall be as set forth in Section 9.
9. Limited Warranty. Except as may be stated in the Quote, LTD and Seller warrant that the Equipment (excluding consumable or disposable components or accessories, which will be subject to the warranty terms, if any, included therewith) will be free from defects in materials and workmanship and will conform in all material respects to LTD’S and Seller’s technical specifications. Lumenis may at its discretion utilize parts that are refurbished and/or as new. The foregoing limited warranty shall continue for a period of time specified in the Quote, or if no such period is specified, for twelve (12) months from the date of installation if the Equipment requires installation or from the date of Buyer’s receipt of the Equipment if the Equipment does not require installation. During the warranty period, LTD or Seller shall repair or replace the Equipment at LTD's or Seller’s sole option. Such repair or replacement shall be LTD's and Seller’s sole obligation and Buyer’s sole remedy hereunder, and shall be conditioned upon Seller receiving written notice of such claimed defect within ten (10) days after its discovery and, at Seller’s option, return of the Equipment to Seller, F.O.B. Seller’s facility. The foregoing limited warranty shall be void and of no effect if: (a) anyone other than Seller or a person acting on Seller’s express or written instructions, removes Equipment casing or makes or attempts to make any modifications, repairs, attachments or additions to the Equipment or installs or moves Equipment for which installation is required by LTD or Seller; (b) the Equipment is not maintained or operated in accordance with LTD's or Seller’s instructions, or has been subjected to misuse, abnormal conditions or negligent handling or operation; or (c) the Equipment is resold, leased or rented to or for the use by any person other than the original Buyer; (d) Buyer fails to make complete payment to Seller. Except as may be stated in the Quote, used and refurbished Equipment does not have any warranties, and Equipment not manufactured by LTD or Seller only have such warranties (if any) as may be provided by the manufacturer.
10. Exclusions. No representation or warranty shall arise from any description of, or claims regarding, the Equipment or its effectiveness or ability to achieve any particular clinical result(s), whether written or oral, contained in specifications, samples, bulletins, marketing or promotional materials or similar statements made or furnished to Buyer by any person. Use of the Equipment requires the exercise of sound medical judgment, and clinical results may vary based on operator skill and experience, patient suitability, patient response to treatment, and other factors beyond the control of LTD and Seller. LTD and Seller make no representation or warranty of revenue or profits from use of the product, and no such representation or warranty shall arise from projections, studies, illustrations, marketing or promotional materials, or other statements or materials made or furnished to Buyer by any person.
11. WARRANTY DISCLAIMER. THE ABOVE LIMITED WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES OF LTD OR SELLER, EXPRESS OR IMPLIED, WRITTEN OR ORAL; LTD AND SELLER DISCLAIM AND EXCLUDE ANY IMPLIED WARRANTY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL LTD OR SELLER BE LIABLE FOR LOSS OF USE, LOSS OF PROFITS, PUNITIVE DAMAGES, ATTORNEY’S FEES AND EXPENSES, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, OR ANY OTHER DIRECT OR INDIRECT DAMAGES WHATSOEVER.
12. Inspection and Returns. Buyer shall inspect each product and read the owner’s manual (and accompanying documentation) upon arrival and shall, within ten (10) days after receipt, give written notice to Seller of any error or claim that the Equipment does not conform with the terms of this Agreement. Partial shipment by Seller shall not constitute a basis for a non-conformity claim by Buyer. Buyer’s sole remedy in the event of such a claim is as set forth in Section 9 above. Orders may not be cancelled after shipment, and delivered products may not be returned without Seller's prior written consent, and at Seller’s sole discretion. Accepted returns are subject to the charges, terms and requirements notified in writing to Buyer (which may include, without limitation, a 15% restocking fee). No acts on the part of Seller, including but not limited to, Seller’s receipt of returned Equipment from Buyer, shall constitute Seller’s approval and acceptance of the returned Equipment or cancelled order, unless Seller has provided its prior written consent to Buyer.
13. Patents, Trademarks and Copyrights. Seller will, at its own expense, defend any suits which may be instituted by anyone against Buyer for alleged infringement of any United States patent, trademark or copyright relating to the Equipment (without modification, alteration or improvement), expressly provided that: (a) such alleged infringement consists solely of the use of such Equipment, in Buyer's business for any of the purposes for which the same were sold by Seller; (b) Buyer has made all payments then due hereunder; (c) Buyer gives Seller immediate notice in writing of any such suit and transmits to Seller immediately upon receipt all processes and papers served upon Buyer and provides all needed information, assistance and authority to enable Seller’s defense of such suit; (d) Buyer has not made any compromise or settlement without Seller’s prior written consent, and (e) such suit does not include claims for infringements of combination or process patents covering the use of the Equipment in combination with other goods or materials not furnished by Seller, claims for infringement of patents covering methods of use not recommended by Seller, or claims arising from any modifications to the Equipment by Buyer or third parties. The foregoing states the entire liability of LTD and Seller for infringement.
14. Proprietary Rights. The purchase and sale of the Equipment hereunder to Buyer shall in no way be deemed to confer upon Buyer any right, interest or license in any patents, patent applications, designs, copyrights, trademarks, service marks, trade names or other intellectual property rights Seller may have covering the Equipment. Seller hereby reserves all such rights. Buyer warrants that it will not, and will not permit or assist any other person or entity to, divulge, disclose, or in any way distribute or make use of such intellectual property, and that it will not, and will not engage, permit or assist any other person or entity to, modify, reverse engineer or manufacture any such products.
15. Financing and Assignment. This Agreement binds Buyer, regardless of any financing arrangements, subrogations or assumptions. Buyer may not assign its rights or delegate its obligations hereunder except with the prior written consent of Seller (which consent may be withheld in its sole discretion).
16. Entire Agreement; Amendments. This Agreement constitutes the entire agreement among LTD, Seller and Buyer and supersedes all prior or contemporaneous promotional material, contracts, agreements, statements, promises, representations, warranties, purchase orders or quotations, whether written or oral. The Quote, Prescription Medical Device Notice, and these Terms and Conditions may not be amended, altered or modified except in writing by an authorized signatory of Seller. No other purported additions, amendments, alterations or modifications by Buyer or any other person, whether oral or written, shall be binding on LTD or Seller, regardless of LTD’s or Seller’s failure to object or Seller’s shipment of products. In the event of a conflict between these Terms and Conditions and any other part of this Agreement, these Terms and Conditions shall govern.
17. Governing Law; Jurisdiction and Venue; Time Limit. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF CALIFORNIA, EXCLUSIVE OF CONFLICTS OF LAW PROVISIONS THAT WOULD PERMIT OR REQUIRE THE APPLICATION OF THE LAWS OF A DIFFERENT JURISDICTION. THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS HEREUNDER SHALL NOT GOVERN THE RIGHTS AND OBLIGATIONS OF THE PARTIES. BUYER AGREES THAT ANY ACTION FOR ENFORCEMENT OF THIS AGREEMENT OR ANY OTHER DISPUTE ARISING HEREUNDER SHALL BE FILED EXCLUSIVELY IN COURTS OR BEFORE ARBITRATORS SITTING IN SANTA CLARA COUNTY, CALIFORNIA, AND BUYER HEREBY CONSENTS AND WAIVES ANY OBJECTION TO THE JURISDICTION AND VENUE OF SUCH COURTS AND ARBITRATORS. ANY ACTION HEREUNDER FOR BREACH OF WARRANTY OR CONTRACT MUST BE COMMENCED NOT LATER THAN ONE YEAR FROM THE DATE ON WHICH SUCH ACTION ACCRUES OR BE FOREVER BARRED.
18. Arbitration. LTD, Seller or Buyer may require that any claim or dispute arising out of or related to this Agreement, including but not limited to those based on or arising from any alleged injury related to the products sold hereunder (collectively, the "Claims"), be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the "AAA"), conducted by three (3) arbitrators sitting in Santa Clara County, California. If any party institutes any judicial proceeding relating to any Claim, that action shall not be a waiver of the right of any party to require submission of such Claims to arbitration. The provisions of Title 9 of Part 3 of the California Code of Civil Procedure, including Section 1283.05 thereof, and successor statutes, permitting expanded discovery proceedings, shall be applicable to all disputes arbitrated pursuant to this Section 16.
NOTE: Seller is committed to the provisions outlined in the Equal Opportunity Clauses of Executive Order 11246, (41 CFR 60-1.4), section 503 of the Rehabilitation Act of 1973, (41 CFR 60-741.5(a)), section 402 of the Vietnam Era Veterans Readjustment Act of 1974, (41 CFR 60-250.5(a)), and, the Jobs for Veterans Act of 2003, (41 CFR 60-300.5(a)) as well as any other regulations pertaining to these orders.
Acknowledged and Agreed:
BUYER OR BUYER’S REPRESENTATIVE:
(Printed Name) (Date)