Acceptance, Agreement to Buy, Payment. This sales order ("Order") is subject to acceptance by Optovue, Inc. ("Optovue") with its principal place of business in Fremont, California. Acceptance by Optovue shall be deemed to have occurred if Optovue does not advise the person or entity identified in the "Bill To" box on the front of the Order ("Buyer") to the contrary within three (3) business days of receiving a signed Order. During the three-day period following the signing of the Order, Buyer may cancel the Order by notifying Optovue in writing at the address shown below or as indicated in the Order, or by telephone directly to a staff at Optovue. After the three-day period, this Order shall constitute a firm and binding agreement ("Agreement") of Buyer to buy and of Optovue to sell the products and/or software licenses covered by the Order, and shall not be cancelable by either party without the agreement of the other party, unless the other party breaches a material obligation described in the Order. Buyer may cancel Agreement after shipment prior to installation and return all products and systems for a full refund less a 10% restocking fee. Buyer may cancel Agreement within 90 days after installation and initial training and return all products and systems for a full refund less a 20% restocking/installation fee. Buyer will receive no refunds for returns after 90 days post installation and initial training. Payment is due per terms set forth on the front of the associated sales order. Payment may be made by check or wire transfer, except for the first 10% of the purchase which may be paid by credit card. Unpaid balance due that is more than thirty (30) days from date of installation and training is subject to interest of 1½ % per month. This is an annual percentage rate of 18% per year.
Installation and Training. Installation and training services are provided for in each sale unless specified otherwise. These services will be scheduled at the mutual convenience of Buyer and Optovue as soon as possible after Buyer has received the products. Installation services provided for on this Order are the services that in Optovue's experience are sufficient to install the Optovue product(s) in an environment complying with the requirements described under "Domestic Warranty Terms and Conditions", and for the basic operation of the device in a clinical setting. Optovue personnel do not and are not responsible for training site personnel on interpretation of scans or images, nor are they responsible for any diagnosis of scans or images, as these are the domain and responsibility of a trained and licensed clinician. Initial training is included with the system price. Additional training is available, and may be subject to a charge.
Restrictions on the Use of the Products and Systems.
(a) Sale of Optovue's system or products (collectively "Products") does not convey any license, expressly or by implication, to manufacture, duplicate, or otherwise copy or reproduce the Products.
(b) Buyer may not sell, donate or otherwise transfer Products unless Optovue has provided its prior written consent to such sale, donation or transfer, such consent not to be unreasonably withheld. Except where such restriction is prohibited by law, Buyer, its affiliate or agent is prohibited from tampering with or attempting to reverse engineer the Products. MODIFYING OR ALTERING THE PRODUCTS MAY ENDANGER PATIENT SAFETY AND VOID THE PRODUCT WARRANTY.
(c) The Products may only be used by a trained clinician or technician (collectively "Authorized Users"). ALLOWING THE USE OF THE PRODUCTS BY PERSONS OTHER THAN AUTHORIZED USERS UNDER THE ACTIVE SUPERVISION OF A LICENSED PHYSICIAN MAY VIOLATE APPLICABLE LAW AND MAY ENDANGER PATIENT SAFETY. For the purposes of clarification, "Active Supervision" shall mean having a licensed physician or technician available during the performance of any procedure using the Product(s) on a patient. Buyer shall indemnify, defend and hold Optovue harmless from and against any and all liabilities, losses, damages, settlements, claims, actions, suits, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys' fees and other expenses of litigation, arbitration or mediation) incurred, relating to, arising from or occurring as a result of any use of the Products by any person or entity other than Buyer, its affiliate or agent.
(d) Buyer agrees and acknowledges that: (i) Buyer will use the Products only for their intended and approved uses and in accordance with all Optovue documentation, including, without limitation, the Optovue System Technical User's Manual and any updates, revisions, or technical bulletins related thereto (collectively "Documentation"); (ii) Buyer will ensure and represents and warrants that its employees, agents and any other users of the Products will comply with all terms and conditions of this Agreement and all Documentation in their use of the Products; and (iii) Optovue reserves the right to modify or replace, at its sole expense, the Products as Optovue deems necessary in its sole discretion and Buyer shall make them reasonably available to Optovue for such modification or replacement.
(e) Optovue reserves the rights not to provide the Products to any entity or person that it reasonably believes is using the Products in violation of the terms of this Agreement, including the restrictions set forth above. WITHOUT LIMITING THE FOREGOING, OPTOVUE RESERVES THE RIGHTS TO NOT SELL ANY OF THE CONSUMABLE PRODUCTS NECESSARY FOR THE CONTINUED USE OF THE SYSTEM.
Licenses and Ownership. No license is to be implied from any term or provision of this Agreement except as required to operate the Products as provided in the Documentation. All software and firmware in the Products are Optovue's copyrighted software and firmware ("Software") and notwithstanding anything else in this Agreement, the Software is licensed to, and not sold to, Buyer. Subject to Buyer's compliance with this Agreement, Optovue grants to Buyer a non-exclusive, non-transferable license to use the Software solely for use in connection with the authorized and intended use of the Products in accordance with the accompanying Documentation. Optovue retains sole title of all patents, copyrights, trade secret rights and other intellectual property rights associated with its Software, Products and all components therein. Optovue will provide updates to the Software ("Software Updates") at no charge; Software Updates include bug fixes and safety enhancements.
Title and Risk of Loss. Optovue's shipping terms are FOB shipping point. Title and risk of loss transfer to the Buyer at the time the Product is accepted by a common carrier for transport to the destination specified by the Buyer.
Governing Law. This Agreement shall be construed in accordance with, and disputes shall be governed by, the laws of the State of California, excluding its conflict of law rules. The superior Court of the County of Alameda or the United States District Court for the Northern District of California shall have jurisdiction and venue over all controversies arising out of, or relating to, this Agreement.
Signature on the front of the sales order form acknowledges receipt and understanding of these Terms and Conditions of Sale.