1902 Fox Drive, Suite F
Champaign, IL 61820
OtoSight Middle Ear Scope Terms and Conditions of Sale
PhotoniCare, Inc. (“PhotoniCare”) offers for sale to the buyer named in the order (the “Buyer”) the products listed in such order or other contract between PhotoniCare and the Buyer (the “Products”) on the express condition that the Buyer will be bound by the terms and conditions set forth in these Terms and Conditions (these “Terms”). Any provisions contained in any document issued by the Buyer are expressly rejected and if these Terms differ from the terms of the Buyer’s offer, these Terms shall control and constitute a rejection of the Buyer’s proposed terms. The Buyer’s receipt of Products or PhotoniCare’s commencement of the services provided under these Terms will constitute the Buyer’s acceptance of these Terms. Notwithstanding the foregoing, Seller reserves the right to make changes to these Terms at any time by posting such changes to PhotoniCare’s website, and such changes shall apply to orders of Products made by the Buyer after the effective date of any such change. PhotoniCare’s failure to object to terms contained in any subsequent communication from the Buyer will not be a waiver or modification of the terms set forth in these Terms. By purchasing products from PhotoniCare, the Buyer affirms that it is purchasing the Products only for its own use and not for purposes of resale. Products purchased pursuant to these Terms may not be sold or transferred to any other person or entity for any purpose.
1. Prices. All prices published by PhotoniCare or quoted by PhotoniCare’s representatives may be changed at any time without notice, provided that a written quote will be valid for thirty (30) days, unless otherwise stated in writing. All prices for the Products will be as specified by Seller in a written quote, or, if no price has been specified or quoted, will be at PhotoniCare’s price in effect at the time of shipment. All prices are subject to adjustment on account of specifications, quantities, raw materials, cost of production, shipment arrangements or other terms or conditions that are not part of PhotoniCare’s original price quote. List prices may vary from the price displayed on the website and all prices may be adjusted at any time by PhotoniCare in its sole discretion.
(a) Payment shall be made by the Buyer to Seller in United States Dollars no later than thirty (30) days from the date of invoice. Any payment not made on time will incur interest at a rate of one and one half percent (1.5%) per month from the date of the invoice until paid in full. If PhotoniCare is required to pursue any collection action to obtain payment, then the Buyer shall be responsible for all costs and expenses of such collection, including attorneys’ fees and court costs.
(b) Taxes. All payments due and payable by the Buyer to PhotoniCare are exclusive of any value added tax, sales and use tax, goods and services tax, and any other similar taxes. In the event that any taxes are properly due under any applicable law, regulation, or otherwise, such taxes will be charged by PhotoniCare in addition to any other payment(s) due under these Terms and shall by payable by the buyer in connection with the applicable invoice, unless the Buyer provides PhotoniCare with valid exemption documentation allowing PhotoniCare to not charge such taxes.
3. Delivery, Cancellation, and Acceptance.
(a) All Products will be shipped F.O.B. PhotoniCare’s warehouse.
PhotoniCare will select the method of shipment and carrier to be used. Risk of loss and title shall pass to the Buyer upon leaving PhotoniCare’s warehouse. The Buyer will be responsible for all costs of shipping, which costs will be added to the applicable invoice. Partial deliveries shall be permitted.
(b) PhotoniCare will use reasonable efforts to deliver the Products on the estimated delivery date set forth on the applicable order. Failure to deliver by the estimated delivery date will not be cause for (i) imposition of any penalties, (ii) cancellation of the order, or (iii) any other termination of the relationship between the parties.
(c) The Buyer may only cancel an order with PhotoniCare’s written consent and upon payment of any cancellation or other charges imposed by PhotoniCare.
(d) The Buyer shall notify PhotoniCare, in writing, within five (5) business days of delivery of any Product. The Buyer must notify PhotoniCare of any defects with the Products in the timeframe stated in this Section. If the Buyer does not notify PhotoniCare of any defect, then the Buyer will be deemed to have accepted the Product. In the event a defect is identified, PhotoniCare’s sole obligation shall be, at its option, to replace or repair a defective Product.
(e) If the Buyer is permitted to return a Product for credit, the Buyer shall be charged a twenty percent (20%) restock charge.
4. Product Changes. PhotoniCare reserves the right, subject to prior written notice to the Buyer, to make changes in the specifications of the Products that do not materially affect the use or performance of the Products.
5. Conditions of Use and Compliance.
(a) If PhotoniCare imposes a restriction on the use of any Product, honoring such restriction is a condition of selling such Product to the Buyer under these Terms. Any such restrictions may be set forth in specifications for the applicable Product, documentation, or any other place identified by PhotoniCare.
(b) The Buyer shall not use or permit the Products to be used in any manner that does not comply with applicable laws or regulations. Any warranty granted by PhotoniCare under these Terms shall be void and of no further force or effect if the Buyer uses a Product for any purposes not permitted under these Terms or any other documentation or specification set forth by PhotoniCare concerning such Product.
(a) Product Warranty. PhotoniCare warrants that each Product will be free from defects in material and workmanship under normal use and service for a period of one (1) year from the date of delivery by PhotoniCare to the Buyer (the “Product Warranty Period”). If a defect occurs during the Product Warranty Period, the Buyer must directly notify PhotoniCare. PhotoniCare, at is sole election and as the sole remedy available to the Buyer, will arrange for
repair or replacement of the Product, which repair or replacement may use certified refurbished components. The Product must be promptly returned and properly packaged. Loss or damage during the return shipment to PhotoniCare will be at the Buyer’s sole risk.
(b) Software Warranty. PhotoniCare warrants, for a period of ninety (90) days after delivery, that the software contained in a Product will substantially conform to PhotoniCare’s published specifications and that the media on which such software resided will be free from defects in material and workmanship under normal use. PhotoniCare does not warrant that the software is error free or that the Buyer will be able to operate the software without problems or interruptions. PhotoniCare’s sole liability and the Buyer’s exclusive remedy for any warranty claim under this Section is limited to repair, replacement, or refund, at PhotoniCare’s sole option.
(c) Any warranty claims under these Terms must be made in writing to PhotoniCare within the warranty periods set forth in this Section. The Buyer’s sole and exclusive remedy (and PhotoniCare’s sole and exclusive liability) for any such warranty claim is limited to PhotoniCare’s obligation to repair, replace or refund the Products or software, as applicable, of which each remedy will be determined by PhotoniCare in its sole discretion. Any remedies available or provided will not extend an applicable warranty period.
(d) The warranties set forth in these Terms exclude the following: (i) the repair, replacement or disposal of any accessories, power supply equipment, computers, or other similar components included with the Products, or (ii) consumable items or parts, if any.
(E) PHOTONICARE EXPRESSLY DISCLAIMS ALL OTHER
WARRANTIES, REPRESENTATIONS, TERMS AND CONDITIONS (STATUTORY, EXPRESS, IMPLIED, OR OTHERWISE) AS TO THE QUALITY, CONDITIONS, DESCRIPTION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PHOTONICARE EXPRESSLY DISCLAIMS, AND THE BUYER EXPRESSLY WAIVES, ANY WARRANTY REGARDING RESULTS OBTAINED THROUGH THE USE OF THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY CLAIM OF INACCURATE, INVALID, OR INCOMPLETE RESULTS.
(f) Notwithstanding anything to the contrary in these Terms, PhotoniCare shall have no liability under any of its representations or warranties with respect to: (i) the use of the warranted Product in combination with any software, tools, hardware, equipment, supplies, accessories or any other materials or services not furnished by PhotoniCare or recommended in writing by PhotoniCare; (ii) any defect in the Products arising from specifications or materials supplied by Buyer; (iii) fair wear and tear; (iv) fraud, negligence or willful misconduct of Buyer or any of its affiliates or representatives; (v) shipping, storage or working conditions after PhotoniCare’s delivery of the Products to the Buyer; (vi) failure to follow PhotoniCare’s use restrictions, recommendations or instructions; (vii) any alteration, modification, repair or enhancement of the warranted Product by Buyer or any third party without PhotoniCare’s prior written consent; (viii) any misuse of the Products or Buyer’s use of the Products not in accordance with PhotoniCare specifications; (ix) any allegation that Buyer’s use of the Products infringes the intellectual property rights of any third party; (x) any Product damaged or lost as a
result of a force majeure event; or (xi) any Product, if the price payable for such Product has not been paid in full in accordance with the terms of the Contract.
7. Intellectual Property Rights.
(a) All right, title, and interest in any intellectual property rights in or associated with the Products shall remain solely with PhotoniCare and/or its licensors. Any user license that may be granted to the Buyer under these Terms shall be non-transferable, non exclusive, and only used for the Buyer’s internal business purposes and subject to other restrictions or obligations as may be set out in these Terms. Any such license shall terminate upon any expiration or termination of these Terms, or as otherwise set forth in these Terms.
(b) Any developments, improvements, modifications, enhancements, or derivative works to the Products shall be the sole and exclusive property of PhotoniCare. The Buyer shall not claim any right, title, or interest in any such property and shall take all reasonable actions identified by PhotoniCare to confirm PhotoniCare’s ownership.
8. Software License.
(a) With respect to any software incorporated in or forming a part of the Products, such software is only licensed and not sold, and that with respect to such software the words “purchase”, “sell” or similar or derivative words are understood and agreed to mean “license”, and that the word “Buyer” or similar or derivative words are understood and agreed to mean “licensee.” Notwithstanding anything to the contrary contained in these Terms, PhotoniCare or its licensor, as the case may be, retains all rights and interest in software products provided hereunder.
(b) PhotoniCare hereby grants to the Buyer a royalty-free, non-exclusive, nontransferable license, without power to sublicense, to use any software provided under these Terms solely for Buyer’s own internal business purposes on the Products provided under these Terms and to use the related documentation solely for the Buyer’s own internal business purposes. This license will terminate when the Buyer’s lawful possession of the Products ceases or the license to use the software expires, unless earlier terminated as provided in these Terms. The Buyer will hold in confidence and not sell, transfer, license, loan or otherwise make available in any form to third parties the software and related documentation.
(c) The Buyer shall not: (i) use the software for purposes other than those for which it was designed; (ii) use the software in connection with any other manufacturers’ products unless such connectivity is authorized in the Product documentation; (iii) grant, assign, transfer, or otherwise make available to any third party any right whatsoever in the software; (iv) disclose to any third party any information contained in the software; (v) copy or reproduce the software; (vi) alter or modify the software; (vii) reverse engineer (or use sequence(s) or other methods in an attempt to reverse engineer), decompile, disassemble or create any derivative works based upon the software; or (viii) transfer the software outside the country of delivery.
(d) Certain of the software products or components provided by PhotoniCare may be owned by one or more third parties and licensed to PhotoniCare. Accordingly, it is acknowledged that such third parties retain ownership of and title to such software. The
warranty and indemnification provisions set forth in these Terms shall not apply to software products owned by third parties and provided under these Terms.
(e) Use of any software embedded in the Products may require creation of a user account. The Buyer shall be responsible for: (i) all activity conducted through each user account associated with the Buyer, (ii) maintaining the privacy and security of each username and password, (iii) any action taken by any of the Buyer’s users; and (iv) any fees associated with access by users.
(a) Indemnification by PhotoniCare. PhotoniCare will indemnify, defend and hold the Buyer, its officers, directors, and employees harmless from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney’s fees) (“Indemnified Items”) for (i) injury to or death of persons or damage to property to the extent caused by the gross negligence or willful misconduct of PhotoniCare, its employees, agents or representatives or contractors in connection with the performance of services at the Buyer’s premises under these Terms and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, PhotoniCare shall have no liability under this Section to the extent any such Indemnified Items are caused by (i) the negligence or willful misconduct of the Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by PhotoniCare where the Product would not itself be infringing, (iv) use of the Product in an application or environment for which it was not designed or (v) modifications of the Product by anyone other than PhotoniCare without PhotoniCare’s prior written approval. The Buyer shall provide PhotoniCare with prompt written notice of any third party claim covered by PhotoniCare’s indemnification obligations under this Section. PhotoniCare shall have the right to assume exclusive control of the defense of such claim or, at the option of PhotoniCare, to settle the same. The Buyer will cooperate reasonably with PhotoniCare in connection with the performance by PhotoniCare of its obligations in this Section. Notwithstanding the foregoing to the contrary, PhotoniCare’s infringement related indemnification obligations shall be extinguished and relieved if PhotoniCare, at its discretion and at its own expense (a) procures for the Buyer the right, at no additional expense to the Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refunds to the Buyer the amortized amounts paid by the Buyer with respect to the infringing Product, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES PHOTONICARE’S ENTIRE LIABILITY TO THE BUYER FOR THE CLAIMS DESCRIBED IN THIS SECTION.
(b) Indemnification by the Buyer. The Buyer shall defend, indemnify, and hold PhotoniCare its affiliates, and their officers, directors, employees (the “Photon Indemnified Parties”) harmless from and against any and all damages incurred or suffered by the Photon Indemnified Parties, directly or indirectly, from: (i) any claim that the Buyer’s use of the Products infringes the intellectual property rights of any third party; (ii) medical diagnosis or treatment decisions; and/or (iii) use of the Product in a manner or environment, or for any
purpose, for which PhotoniCare did not design it, or in violation of PhotoniCare’s written recommendations or instructions.
(c) Notwithstanding any other term of this Section 9, the indemnifying party shall not be liable for damages caused by the indemnified party. Neither Party will be responsible for any settlement of a suit or proceeding made without its prior written consent.
(D) IN NO EVENT SHALL PHOTONICARE BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES OF ANY KIND HOWEVER CAUSED (INCLUDING FAULT OR NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THE BUYER’S USE OF THE PRODUCTS OR THESE TERMS, INCLUDING THE SALE, INSTALLATION, USE OR INABILITY TO USE ANY PRODUCT, INCLUDING WITHOUT LIMITATION, DATA LOSS, LOSS OF PROFITS, GOODWILL OR BUSINESS INTERRUPTION.
(e) The total liability of PhotoniCare arising under or in connection with these Terms or the Products, whether in contract, tort (including negligence), statute or otherwise shall, to the extent permitted by applicable law, BE LIMITED TO DAMAGES in an amount equal to the amount paid to PhotoniCare by the Buyer to acquire the Products or under these Terms.
10. Data and Security.
(a) Protected Health Information. PhotoniCare will not create, receive, maintain, transmit or otherwise have access to Protected Health Information as such term is defined in 45 C.F.R. § 160.103 (“PHI”), of the Buyer. If the Buyer needs to return any Product to PhotoniCare for any reason, it is the Buyer’s sole responsibility to ensure that all PHI is removed from any such Product before sending to PhotoniCare.
(b) Data Rights. PhotoniCare and its subcontractors may collect, prepare derivatives from and otherwise use non‐PHI data related to Products for such things as training, demonstration, research, development, benchmarking, continuous improvement and facilitating the provision of its products, software and services. PhotoniCare will own all intellectual property and other rights that could result from such collection, preparation and use. The non‐ PHI data will not be used to identify the Buyer, nor will it be sold by PhotoniCare without the Buyer’s consent. PhotoniCare shall comply with all laws and regulations applicable to the use of, access to and confidentiality of such non-PHI data.
11. Government Purchases. The parties expressly agree that any requirements, certifications or representations, referenced in any purchase order provided in connection with these Terms that specify any federal, state, or local government regulations, laws, requirements, obligations, or commitments applicable as a result of funding by a federal, state, or local government entity or agency, or the flow‐down of similar requirements from the Buyer’s customer’s contracts, are not applicable under these Terms and are expressly rejected.
12. Leases. If the Buyer is acquiring use of the Products through an equipment lease (“Lease”) with an equipment lessor (“Lessor”), certain provisions of these Terms (including, but not limited to, terms related to payment, title transfer, warranties, and software licenses) may be modified as agreed to in writing between PhotoniCare, the applicable Lessor, and/or the Buyer,
as the case may be. Acceptance of the Products as between PhotoniCare and Lessor will be defined by these Terms; acceptance of the Products as between Lessor and the Buyer will be defined by the applicable lease agreement between Lessor and the Buyer. Notwithstanding the foregoing, if the Lessor does not comply with these Terms, the Buyer shall continue to be responsible for any applicable payment obligations under these Terms.
(a) Entire Agreement. Unless otherwise specified in these Terms, these Terms represent the entire agreement between the parties and supersede in their entirety all prior agreements concerning the subject matter of these Terms, and no modification, amendment, revision, waiver, or other change shall be binding on either party unless consented to in writing by both parties. Any oral or written representation, warranty, course of dealing, or trade usage not contained or referenced in these Terms (including the Buyer’s terms and conditions) shall not be binding on either party.
(b) Force Majeure. PhotoniCare shall not be liable for any failure of or delay in performing any of its obligations and shall not be deemed to be in breach of any of its obligations, if such failure, delay or breach is due to any cause beyond the reasonable control of PhotoniCare, including, without limitation, war, terrorism, riots, fire, explosion, flood, earthquake, insurrection, embargo, strikes of employees, currency restriction, shortage of transport, inability to obtain power or fuel, general shortage of material, acts or omissions of governments in their sovereign capacity or failure of public utilities or common carriers, embargoes, shortage of or inability to obtain supplies (each, a “Force Majeure Event”). Such non‐performance will be excused for as long as such Force Majeure Event shall be continuing. PhotoniCare shall give prompt written notice to the Buyer of such Force Majeure Event. In the event of a Force Majeure Event, PhotoniCare, at its sole option, may cancel any purchase or extend the delivery date for a period of time equal to any time lost as a result of the delay caused by the Force Majeure Event.
(c) Export. The Buyer shall not export, or re-export, the Products supplied by PhotoniCare in violation of any applicable export regulations. If the Buyer does export any of the Products outside of the United States, the Buyer assumes all responsibility for obtaining any necessary or required export authorizations and for payment of any and all associated fees.
(d) No Third Party Beneficiaries. These Terms may be enforced only by PhotoniCare and the Buyer and do not confer on any other person any rights, remedies, obligations or liabilities under or by reason of these Terms.
(e) Notices. All notices, requests and other communications shall be in writing and shall be deemed to be received when personally delivered or three (3) business days after being sent by certified mail, postage prepaid, to a party at the address specified by such party, which may be changed from time to time by the applicable party.
(f) Relationship. The relationship of the parties is that of independent contractors. Nothing in these Terms create a partnership, joint venture or similar relationship between the parties and no party shall be deemed to be the agent of the other party.
(g) Severability. If any provision of these Terms or the application of such provision in any particular circumstance is held illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall not affect any other provision of these Terms and the remaining provisions of these Terms shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
(h) Waiver. Failure by either party to enforce any rights under these Terms shall not be construed as a waiver of such rights nor shall a waiver by either party in one or more instances be construed as constituting a continuing waiver or as a waiver in other instances. (i) Governing Law and Jurisdiction. These Terms shall be governed by the internal laws of the States of Delaware without regard to its conflicts of laws provisions. The parties consent to the venue and jurisdiction for any dispute or matter relating to these Terms in the state or federal courts located in the County of Champaign, Illinois. The rights and obligations of the parties shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods.