Syneron Candela Terms and Conditions of Sale
These Terms and Conditions of Sale (“Terms”) are by Syneron Candela (“Syneron Candela”) to the purchaser (“Purchaser”) under the Purchase Agreement (“Purchase Agreement”) to which these Terms are attached and incorporated by this reference.
1.Equipment Purchase: Syneron Candela agrees to sell and Purchaser agrees to purchase the equipment, products and services listed on the Purchase Agreement (collectively, the “Equipment”).
2.Purchase Price: The purchase price for the Equipment is set forth in the Purchase Agreement (the “Purchase Price”), which Purchase Price is exclusive of all excise, sales, use and other taxes imposed by any federal, state, municipal or other government authority (collectively, the “Taxes”), all of which Taxes shall be paid by Purchaser unless Purchaser has provided to Syneron Candela a valid certificate of exemption from any such Taxes on the purchase of the Equipment.
3.Terms of Payment: Purchaser will pay Syneron Candela’s invoice in full in U.S. Dollars, by bank transfer, cash, or certified check. Syneron Candela shall be entitled to require full or partial payment in advance. Syneron Candela reserves the right to withhold warranty service and any extended warranty services, to the extent any payments are overdue. Overdue payments shall be subject to finance charges, computed at a periodic rate equal to the lesser of (i) Libor + 2% per month; or (ii) the highest rate permitted under applicable law. All amounts owed by Purchaser shall be paid in full without setoff. Purchaser shall pay Syneron Candela the sum of Fifty Dollars ($50.00) per check for any check returned to non-sufficient funds.
4.Event of Default; Remedies: In the event Purchaser fails to pay the Purchase Price or any other amount when due or perform its other obligations under these Terms or as otherwise mutually agreed in writing between Purchaser and Syneron Candela (each such event, an “Event of Default”), then Syneron Candela may take any and all actions available under law or equity to collect said amounts with a ten (10) day prior written notice, including, but not limited to, enforcing its security interest, accelerating the payment of and declaring immediately due and payable any unpaid balance of the Purchase Price, referral to outside collection agencies and/or commencement of legal action. Syneron Candela’s rights shall be cumulative, and it shall not be required to have attempted to realize upon to any Collateral (as defined in Section 7 below) before taking any other collection actions. Syneron Candela may require that Purchaser assemble and return any or all of the Collateral to Syneron Candela and, in the event Purchaser fails to return such Collateral peaceably, enter upon the premises where such Collateral is located, with or without legal process, and repossess such Collateral. Upon the occurrence of an Event of Default, Purchaser agrees to pay upon Syneron Candela’s demand: (i) all costs and expenses incurred by Syneron Candela or its assignee in connection with the enforcement of any remedies, including all expenses incurred in connection with the return, sale, release or other disposition of the Collateral; (ii) reasonable attorneys’ fees and other costs incurred by Syneron Candela or its assignee in enforcing or defending its rights and remedies under these Terms, in any other written agreement between the Purchaser and Syneron Candela or the Related Documents (as defined in Section 19 below).
5.Delivery: All sales are FCA Syneron Candela manufacturer or distributor location (Incoterms 2010). Without in any way limiting the generality of Section 10, Syneron Candela shall not be liable for any Damages (as defined in Section 16 below) resulting from any delay in delivery that is due to any cause beyond Syneron Candela’s reasonable control or any acts or omissions of Purchaser. In the event of such delay, time for delivery shall be extended for a period equal to the duration of the delay and Purchaser shall accept delivery when made. If, as a result of any such cause, any scheduled delivery is delayed for a period in excess of thirty (30) days, Syneron Candela may, at Syneron Candela’s option, by written notice to Purchaser, cancel that delivery and future deliveries without further liability or obligation to Purchaser of any kind. Equipment on which delivery is delayed at the request of Purchaser or due to any cause within Purchaser’s control may be placed in storage by Syneron Candela at Purchaser’s risk and expense.
6.Third-Party Financing. In the event that Purchaser finances its acquisition of the Equipment with a third party, Purchaser may direct Syneron Candela to transfer title to the Equipment to such third party financing company (in lieu of transfer to Purchaser) with all remaining terms and conditions of the Related Documents remaining in full force and effect.
7.Security Interest: Purchaser hereby grants to Syneron Candela a first priority, purchase money security interest in the Collateral (defined below) to secure the full payment and performance by Purchaser of its liabilities and obligations to Syneron Candela under the Related Documents or otherwise. “Collateral” consists of the Equipment, including all parts, accessories, attachments, peripherals and software related thereto, and all products and proceeds thereof. Until Syneron Candela receives full payment of the Purchase Price for the Equipment, Purchaser shall keep the Equipment free and clear of all liens and encumbrances and shall not sell or transfer any interest in the Equipment to any third party. Purchaser hereby authorizes and appoints Syneron Candela as Purchaser’s attorney-in-fact to execute, deliver and file at any time, any financing statement and/or take any other action permitted by applicable law to perfect, enforce, continue and amend, Syneron Candela’s security interest in any jurisdiction deemed appropriate by Syneron Candela. Purchaser also agrees to execute and deliver any other documents Syneron Candela may request in order to perfect Syneron Candela’s security interest in the Collateral.
8.Limited Manufacturing Warranty:
Syneron Equipment is warranted only under the Limited Warranty Schedule – Syneron. Candela Equipment is warranted only under the Limited Warranty Schedule – Candela. UltraShape Equipment is warranted only under the Limited Warranty Schedule – Ultrashape. The applicable Limited Warranty Schedule is attached to these Terms. The applicable Limited Warranty Schedule contains the whole of the warranty applicable to the Equipment.
9.Limited Regulatory Warranty: Syneron Candela hereby warrants to the original Purchaser of the Equipment that the Equipment has been cleared for use as a medical device by the United States Food and Drug Administration (the “Limited Regulatory Warranty” and collectively with the Limited Manufacturing Warranty, the “Limited Warranties”). The Limited Regulatory Warranty is neither transferable nor assignable by the original Purchaser and is subject to the limitations set forth in these Terms.
10.Disclaimers:
THE LIMITED WARRANIES COMPRISE THE EXCLUSIVE REMEDIES AGAINST SYNERON CANDELA AND SYNERON CANDELA MAKES NO OTHER WARRANTIES FOR THE EQUIPMENT, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THE EQUIPMENT’S COMPLIANCE WITH APPLICABLE LAWS, ALL OF WHICH ARE HEREBY DISCLAIMED. ANY STATEMENTS INCONSISTENT WITH OR IN ADDITION TO THE LIMITED WARRANTIES (INCLUDING ANY SUCH STATEMENTS IN THE RELATED DOCUMENTS) ARE UNAUTHORIZED AND SHALL NOT BE BINDING UPON SYNERON CANDELA. PURCHASER ALSO HEREBY ACKNOWLEDGES AND AGREES THAT ANY ORAL OR WRITTEN STATEMENTS CONCERNING REGULATION OF MEDICAL DEVICES MADE BY SYNERON CANDELA ARE AND SHALL BE CONSTURED AS FOR INFORMATIONAL PURPOSES ONLY AND WITHOUT WARRANTY OR ASSURANCE BY SYNERON CANDELA AS TO THEIR ACCURACY OR VALIDITY. FURTHER, SYNERON CANDELA HEREBY DISCLAIMS ANY AND ALL WARRANTIES REGARDING SURGICAL, OTHER MEDICAL CARE OR ASSISTANCE, INCLUDING THE SELECTION OF MEDICAL PROCEDURES AND EQUIPMENT FOR, OR CARE OF, PATIENTS.
11.Limited Liability: NOTWITHSTANDING ANYTHING IN THE RELATED DOCUMENTS TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL SYNERON CANDELA BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING FROM, RELATED TO OR CAUSED, DIRECTLY OR INDIRECTLY, WHETHER FORESEEABLE OR NOT, BY THE EQUIPMENT, THE RELATED DOCUMENTS, THE USE OR INABILITY TO USE THE EQUIPMENT, THE RESULTS GENERATED FROM THE EQUIPMENT, ANY OTHER ACT OR OMISSION OF SYNERON CANDELA, OR BASED UPON ANY OTHER LEGAL THEORY. FURTHER, IN NO EVENT WILL SYNERON CANDELA'S TOTAL LIABILITY UNDER THE RELATED DOCUMENTS EXCEED THE PURCHASE PRICE ACTUALLY PAID TO SYNERON CANDELA BY PURCHASER FOR THE EQUIPMENT GIVING RISE TO THE CLAIM FOR WHICH DAMAGES ARE BEING SOUGHT. NO ACTION MAY BE BROUGHT BY PURCHASER FOR ANY BREACH OF THE RELATED DOCUMENTS MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION.
12.Patents and Other Proprietary Rights: As Purchaser’s sole remedy with respect to intellectual property infringement, Syneron Candela shall defend, indemnify and hold the original Purchaser harmless from all third party claims, liabilities and damages finally awarded by a court of competent jurisdiction or as finally settled by Syneron Candela that are a direct result of the Equipment, when used in accordance with the standard, written, technical specifications that were provided or made available to Purchaser and for an application for which the Equipment was marketed and sold, infringing a valid United States patent (each a “Patent Claim” and collectively “Patent Claims”), provided that the original Purchaser shall have promptly advised Syneron Candela in writing of such Patent Claim and shall cooperate fully with Syneron Candela in the defense or settlement of such Patent Claim. Syneron Candela shall have sole control of the defense of all Patent Claims and of all negotiations for their settlement or compromise. This indemnity shall not apply to Patent Claims arising from the use or sale of products manufactured in accordance with any designs or specifications provided by Purchaser, modifications made to the Equipment without Syneron Candela’s specific written approval or resulting from combinations with products not provided by Syneron Candela. No sale of any Equipment shall be construed as granting to Purchaser by Syneron Candela any license or other right in or to any patent, copyright, trademark or other proprietary right applicable to the Equipment.
13.Use of Syneron Candela Intellectual Property: Purchaser will not use any Syneron Candela intellectual property, including Syneron Candela trademarks, copyright and other protected marks, in Purchaser’s advertising in (a) any marketing service that offers its subscribers group discounts through electronic means such as email, Facebook or Twitter, (b) any group marketing service that offers subscribers a discount if a group of people buy a product or service, or (c) any e-commerce platform that connects subscribers with local merchants for the sale of products or services at a group discount, without the prior written consent of Syneron Candela. Syneron Candela reserves the right to refuse to permit the use of its intellectual property in Purchaser’s advertising for any reason.
14.Assignment: Purchaser shall neither delegate any duties nor assign any rights or claims under the Related Documents without Syneron Candela’s prior written consent, and any such attempted delegation or assignment shall be void. Syneron Candela may, at any time, without prior notice, assign or transfer any of the Related Documents.
15.Compliance with Laws: Purchaser shall carry out the transactions contemplated by the sale and shall otherwise deal with the Equipment sold in conformity with all applicable laws, rules, orders, and regulations of all governmental authorities applicable to Purchaser, including, without limitation, the Export Administration Act, and shall obtain all permits and licenses required in connection with the purchase, installation, sale, shipment or use of any of the Equipment (collectively, “Applicable Laws”).
16.Governing Law, Jurisdiction, Venue, and Waiver of Jury Trial: The Related Documents shall be governed by, construed and enforced exclusively in accordance with the laws of the Commonwealth of Massachusetts, without reference to its conflict of law provisions. Purchaser hereby consents and submits to the exclusive personal jurisdiction in, and hereby stipulates that venue shall be proper in, the state and federal courts located in the Commonwealth of Massachusetts, and further agrees to bring any such action exclusively in such courts. THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THE RELATED DOCUMENTS. THE PARTIES AGREE THAT THIS SECTION 16 CONSTITUTES A SPECIFIC AND MATERIAL ASPECT OF THESE TERMS AND THAT THE PARTIES WOULD NOT HAVE ENTERED INTO THE RELATED DOCUMENTS IF THIS SECTION 16 WERE NOT INCLUDED IN THESE TERMS.
17.Indemnification By Purchaser: Purchaser agrees to defend, indemnify, and hold harmless Syneron Candela, its officers, directors, employees, agents and independent contractors (collectively, “Syneron Candela Indemnified Parties”) from and against any and all damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under these Terms and the cost of pursuing any insurance providers, incurred or asserted against any Syneron Candela Indemnified Party (collectively, “Damages”) for (a) any breach or non-fulfillment of any representation, warranty or covenant set forth in the Related Documents by Purchaser or its personnel; (b) any negligent act or omission or willful misconduct of Purchaser or its personnel in connection with the Related Documents; (c) any bodily injury, death of any person or damage to real or tangible personal property caused by the Purchaser or its personnel; (d) any failure by Purchaser or its personnel to comply with any Applicable Laws; (e) any fraud or other intentional acts by Purchaser; and (f) the use or operation of the Equipment, including, without limitation, any medical and/or surgical procedures performed by Purchaser using the Equipment unless said Damages are caused solely by the gross negligence of Syneron Candela or solely as result of a breach by Syneron Candela of the Limited Manufacturing Warranty.
18.Software License: Syneron Candela hereby grants to Purchaser a non-exclusive, non-transferable, limited license to use the software contained or embedded in the Equipment solely in conjunction with the Purchaser’s use of the Equipment. Accordingly, Purchaser shall not: (i) sell, rent or lease the software to any third party; (ii) reverse engineering or try to decompile the source code for such software; or (iii) provide access to the software or any information related thereto to any third party without that party agreeing to comply with the terms herein.
19.Representations and Warranties By Purchaser: Purchaser represents, and warrants and covenants to Syneron Candela that: (a) the Equipment will be used for business purposes, and not for personal, family or household purposes; (b) the full and accurate legal name of Purchaser is as stated on the signature page to the Purchase Agreement; (c) Purchaser has the power and capacity to enter into the Purchase Agreement and all documents related to the purchase of the Equipment and any other documents required to be delivered in connection herewith or therewith, each including and subject to these Terms (collectively, the “Related Documents”); (d) the Related Documents do not contravene or violate any Applicable Laws or any agreement Purchaser has with any lender, vendor, or other third party; (e) the Related Documents have been duly authorized, executed and delivered by Purchaser and constitute valid, legal and binding agreements, enforceable against Purchaser in accordance with their terms; and (f) Purchaser is, and will remain, in compliance with all Applicable Laws.
20.Exclusive Agreement; Amendment; Order of Precedence and Severability: The Related Documents comprise the sole and exclusive agreement between the parties with respect to the subject matter hereof and supersede any and all other agreements, representations, references, documents, and conditions, whether oral or written, which may have been previously made with respect thereto. Terms and conditions set forth in any document provided by Purchaser that differ from, conflict with or are not included in the Related Documents shall not become a part of any agreement between Syneron Candela and Purchaser unless such terms and conditions are specifically accepted by Syneron Candela in writing. In the event of any conflict between these Terms and any other Related Document, these Terms shall govern and control. No modifications, amendment, or other alteration may be made to the Related Documents unless made in writing and signed by each party’s authorized representative. If any provision of the Related Documents is, or is declared in a future proceeding to be, invalid, unenforceable, or illegal in any jurisdiction, such provision will be ineffective in such jurisdiction only to the extent of such invalidity, unenforceability, or illegality and such invalidity, unenforceability, or illegality will not affect either the balance of such provision, to the extent it is not invalid, unenforceable, or illegal or the remaining provisions hereof or thereof nor render invalid, unenforceable, or illegal such provision in any other jurisdiction.
LIMITED WARRANTY SCHEDULE – SYNERON PRODUCTS
THE LIMITED WARRANTY IN THIS SCHEDULE APPLIES ONLY TO SYNERON EQUIPMENT.
What Is Covered. Syneron Candela grants a limited warranty for the Equipment as specified in this Schedule. This Limited Warranty covers defects in material and workmanship in the (i) Syneron Candela systems, (ii) applicators purchased at the same time that a System is purchased (the “Bundled Applicators”), and (iii) applicators purchased separately from a system (the “Stand-Alone Applicators) identified in the Equipment Schedule contained in the Sales Agreement.
Who Is Covered. This Limited Warranty extends solely to the Purchaser who purchased the Equipment from Syneron Candela. This Limited Warranty is non-transferable and non-assignable by the Purchaser. Syneron Candela shall have no obligations for claims made under a transferred warranty in the event that the Purchaser attempts an assignment of the Purchaser’s rights under this Limited Warranty.
How Long. The term of this Limited Warranty (the “warranty period”) is a period of three (3) years from the initial date Syneron Candela delivers any System(s) and any Bundled Applicator(s) to Purchaser. The warranty period for any Stand-Alone Applicator is a period of three (3) years from the initial date that Syneron Candela delivers any Stand-Alone Applicator(s) to Purchaser. To the extent that Syneron Candela determines, in its sole discretion, that it should replace any of the Equipment, Syneron Candela warrants any such replacement System, Bundled Applicator, Stand-Alone Applicator, or part for the duration of the original warranty period.
Suspension of Warranty Coverage. Service coverage under this Limited Warranty will be automatically suspended (i) during any periods of non-payment of any charges due to Syneron Candela by the Purchaser (including if a cheque does not clear); and (ii) during any period that Purchaser retains possession of a Loaner system (defined below) and is being assessed Rental Charges (defined below) by Syneron Candela. Limited Warranty service coverage shall recommence when Syneron Candela receives payment in full of any and all charges due. Note that although warranty service will not be available during any period of non-payment, the warranty period will continue to run during such time.
What Syneron Candela Will Do. Syneron Candela will, within the applicable warranty period, at Syneron Candela's sole option, repair or replace any defects in material or workmanship in the Equipment without any costs to the Purchaser for parts or labour (except as specifically stated below). To the extent that Syneron Candela determines that it should replace a System, Syneron Candela may do so using another System that is of the same model and year of manufacture and in good working order.
What Is Not Covered. This Limited Warranty does not cover any Equipment, including applicators, which has been damaged by accident, misuse (including improper storage), abuse, and/or modification of the Equipment, in the Purchaser’s transportation of the Equipment, by an act of God, use of the Equipment in violation of the instructions, the use for any purpose other than one for which the Equipment was manufactured, damage caused by unauthorized repair, or the use of unauthorized parts, or the use by unauthorized person and/or requests for repair for any problems that Syneron Candela cannot replicate or problems claimed by the Purchaser (collectively and individually “Excluded Repairs”). This Limited Warranty also does not cover any equipment, products or accessories sold or supplied with the Equipment which are manufactured by a third party. Syneron Candela will bill the Purchaser for Excluded Repairs at $150 per hour plus the costs of the parts, shipping costs and Syneron Candela’s then current handling fee for the inspection and diagnosis of each of the Excluded Repairs.
How to Obtain Service. To obtain service under this Limited Warranty, the Purchaser must first contact Syneron Candela by telephone (a “service call”), toll free +1 (866) 259-6661. In making a service call, the Purchaser must provide Syneron Candela with sufficient information to identify the Equipment for which warranty service is desired (the “affected Equipment”) including model number, serial number, specifics regarding the Purchaser’s complaint, and the Purchaser’s shipping address. The Purchaser representative placing the service call (“Purchaser’s Technician”) must have personal experience with the affected Equipment, including specific knowledge regarding both the use of the Equipment and the nature of the problems which led to Purchaser’s service call. Upon receipt of a service call, the Purchaser’s Technician and Syneron Candela’s technician must attempt to resolve the service issue through diagnostic services performed over the telephone. In the event that Syneron Candela cannot replicate the problem or problems identified by the Purchaser during the service call, the Purchaser may then ship the affected Equipment to Syneron Candela’s service centre for inspection and diagnosis.
Charges related to Service. If Syneron Candela determines that the affected Equipment is covered by this Limited Warranty, there will be no charges assessed to Purchaser for the repair or related shipping and handling of the Equipment in connection with the warranty service. If Syneron Candela cannot replicated the problem or problems identified by the Purchaser during diagnostic testing at Syneron Candela’s service centre, Syneron Candela will bill and the Purchaser agrees to pay Syneron Candela a fee of USD $1,500 (except for Aurora applicators with 2 heads or less, for which a fee of $1,000.00 will be charged) for each System returned to Syneron Candela for inspection and diagnosis. The Purchaser also will be responsible for all shipping charges (incoming and outgoing) related to the shipment of any Equipment to Syneron Candela for inspection and diagnosis. Syneron Candela will also bill the Purchaser and the Purchaser agrees to pay for shipping costs and Syneron Candela’s then current handling fee to return Equipment in cases where the Purchaser delivers the incorrect System for warranty service. If any piece of Equipment to be shipped to Syneron Candela for service under this Limited Warranty is not ready for shipment at the time the carrier designated by Syneron Candela arrives at the location designated by the Purchaser, Purchaser agrees that Syneron Candela will assess and the Purchaser will pay a charge of $20.
Service Loaner. If Syneron Candela’s technician determines that it is necessary for the Purchaser to deliver any Equipment to Syneron Candela for warranty service, Syneron Candela will use its best efforts to deliver a service loaner system (the “Loaner”) to the Purchaser within one business day following such request, provided that: (i) the Purchaser completes the telephone service call diagnostic assessment and requests a Loaner prior to 3:00 p.m. PST one business day before the next business day on which a Loaner system is scheduled for delivery by Syneron Candela; and (ii) a Loaner is available for use at the time of Purchaser’s request. As a condition of use of a Loaner, the Purchaser must deliver the affected Equipment to the designated Syneron Candela service centre for inspection and diagnosis within 24 hours of the Purchaser’s receipt of the Loaner. In the event that the Purchaser fails to deliver the affected Equipment to Syneron Candela as required, Syneron Candela shall have the right to immediately reclaim the Loaner and assess Rental Charges (described below) to the Purchaser. Except for the return of the Loaner to Syneron Candela, Purchaser may not move or relocate a Loaner, regardless of the Purchaser’s need for the Loaner at a different location. The Loaner shall at all times be considered personal property of Syneron Candela and the title to the Loaner shall not pass to Purchaser but shall remain in Syneron Candela. Purchaser shall not remove, conceal or otherwise interfere with the title or any ownership markings of Syneron Candela affixed to the Loaner. Purchaser shall keep the Loaner free from all liens, charges and encumbrances of any kind whatsoever. Syneron Candela disclaims all warranties, express or implied, with respect to the Loaner. In no event will Syneron Candela have any obligation or liability for damages, to Purchaser arising out of or in connection with the use or performance of the Loaner.
Charges Related to Service Loaner. Provided that Purchaser delivers the Equipment to Syneron Candela’s service centre within 24 hours of receipt of the Loaner, Purchaser shall be entitled to use of the Loaner free of charge until such time that Purchaser’s Equipment has been returned to Purchaser. If Purchaser does not timely deliver the Equipment to Syneron Candela’s service centre following receipt of the Loaner, Purchaser will be charged for use of the Loaner as provided below. Purchaser shall return the Loaner to Syneron Candela within 24 hours following Syneron Candela’s return of Purchaser’s System.
Failure to Return Equipment. Purchaser agrees that if Purchaser fails to deliver the affected Equipment to Syneron Candela within 24 hours after receipt of a Loaner or replacement applicator, and such failure continues for a period of 72 hours, then (i) Purchaser shall be assessed rental charges of $500 per day for each day per Syneron Candela system and $150 per day for each day per Syneron Candela applicator (“Rental Charges”) until the affected Equipment is received by Syneron Candela and such Rental Charges shall be immediately due and payable by Purchaser to Syneron Candela; (ii) Purchaser’s Limited Warranty for the System shall be suspended and be without further force and effect until the affected Equipment is received by Syneron Candela; and (iii) Syneron Candela may immediately and without notice take possession of the Loaner wherever found; and (iv) Purchaser shall reimburse Syneron Candela for all amounts expended or charges incurred by Syneron Candela, including reasonable legal fees, in connection with any action at law, in equity or otherwise by Syneron Candela to recover possession of the Loaner or otherwise enforce this Limited Warranty. All Rental Charges shall be immediately due and payable by Purchaser to Syneron Candela.
Failure to Return Loaner. Purchaser agrees to return the Loaner to Syneron Candela within 24 hours following return of Purchaser’s Equipment. In the event that Purchaser fails to return the Loaner to Syneron Candela as required and such failure continues for a period of 72 hours following the return of Purchaser’s Equipment: (i) Purchaser shall be assessed Rental Charges for each day until the Loaner is returned to Syneron Candela and such Rental Charges shall be immediately due and payable by Purchaser to Syneron Candela; (ii) Purchaser’s Limited Warranty for the System shall be suspended and be without further force and effect until the Loaner is returned to Syneron Candela; (iii) Syneron Candela may immediately and without notice take possession of the Loaner wherever found; and (iv) Purchaser shall reimburse Syneron Candela for all amounts expended or charges incurred by Syneron Candela, including additional shipping and handling costs, and reasonable legal fees, in connection with any action at law, in equity or otherwise by Syneron Candela to recover possession of the Equipment or otherwise enforce this Limited Warranty. All Rental Charges shall be immediately due and payable by Purchaser to Syneron Candela. Purchaser shall be responsible for the shipping and handling costs for shipments of a Loaner to/from a location outside Canada.
Exclusions. The Limited Warranty specified in this Schedule do not cover any Equipment, including applicators, which has been (i) damaged by accident, misuse (including improper storage), abuse, in the Purchaser’s transportation of the Equipment, or by an act of God, (ii) modified; (iii) used in violation of our instructions for use and operation, (iv) used for any purpose other than one for which the Equipment was manufactured, (v) damaged by unauthorized repair, or the use of unauthorized parts (vi) use by unauthorized person; and/or involves requests for repair for any problems that Syneron Candela cannot replicate or problems claimed by the Purchaser (collectively and individually “Excluded Repairs”). This Limited Warranty also does not cover any equipment, products or accessories sold or supplied with the Equipment which are manufactured by a third party.
Syneron’s UltraShape V3, UltraShape Power and SlimShape devices contains functionality that stores individual patient treatment-related information on the device hard drive. This enables providers to view information about past treatments when a patient returns for further treatment. This patient information may be protected under the Health Information Portability and Accountability Act of 1996 (“HIPAA”) and its implementing regulations, as amended by the Health Information Technology for Economic and Clinical Health (“HITECH”) Act. Covered entities (including covered health care providers) are not permitted to disclose patient protected health information (“PHI”) except for limited purposes. Accordingly, Syneron’s customers are required to preserve a copy of all patient data from the device and to erase all patient information from their UltraShape V3, UltraShape Power and SlimShape devices prior to sending the device to Syneron for service. Please be informed that, in the event that Syneron’s service department receives a device containing PHI, then Syneron will erase all PHI on the device prior to servicing the device. Syneron disclaims all liability for any erased or lost patient data and information.
LIMITED WARRANTY SCHEDULE – CANDELA PRODUCTS
THE LIMITED WARRANTY IN THIS SCHEDULE APPLIES ONLY TO CANDELA EQUIPMENT.
Syneron Candela grants a limited warranty for the Equipment as specified in this Section to the original Purchaser that the new Equipment, excluding instruments, accessories, and consumable products, will be free from defects in material and/or workmanship for a period of one (1) year (or, except for (i) the LPL Handpiece, which is the earlier to occur of one (1) year and 250,000 pulses; (ii) SmoothPeel Handpiece, which is the earlier to occur of one (1) year and 100,000 pulses; or (iii) a different period as otherwise set forth in the Sales Agreement, provided however the LPL and SmoothPeel timeframes cannot be modified on a Purchase Agreement) from the date of Syneron Candela’s shipment of the Equipment to the original Purchaser. If we receive written notice of defects during the warranty period, Syneron Candela will, at its sole option, either repair or replace the hardware components, fiber delivery system or other Equipment, if any, that we determine are defective. The Purchaser must notify Syneron Candela of any defect within forty-eight (48) hours after the defect first comes to the Purchaser’s attention. Any replacement Equipment shall be, at Syneron Candela’s sole option, new or remanufactured products, and are warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. This limited warranty is not transferable nor assignable and is subject to limitations.
The Candela Cool Clip shall be free from defects in material and workmanship for ninety (90) days from the date of shipment. If Syneron Candela receives notice of such defects during the warranty period, Syneron Candela will, at its option, either repair or replace the plastic components that prove to be defective. The Purchaser must notify Syneron Candela of any defect within forty-eight (48) hours after the defect first comes to the Purchaser’s attention. Any replacement products shall be at Syneron Candela’s option new or remanufactured products, and are warranted for the remainder of the original warranty or thirty (30) days, whichever is longer. This warranty is not transferable nor assignable and is subject to limitations.
All claims that the Equipment (as delivered) does not conform to technical specifications published by Syneron Candela must be made in writing within ten (10) days after delivery to the Purchaser, and any claims not made within that period shall be deemed waived and released. Our sole responsibility with respect to such claims shall be, at our sole option, to repair or replace any Equipment or component which we determine to be defective.
The limited warranty in this Schedule is not intended for Equipment used in a mobile environment. Mobile usage will require a separate special mobile warranty package. The one (1) year limited warranty on fiber systems is not subject to modification or extension. To the extent that the Sales Agreement indicates a warranty period longer than one (1) year or any other provisions inconsistent with this Limited Warranty Schedule, this Limited Warranty Schedule shall be deemed to control.
Service coverage under this Limited Warranty will be automatically suspended during any periods of non-payment of any charges due to Syneron Candela by the Purchaser (including if a cheque does not clear). Limited Warranty service coverage shall recommence when Syneron Candela receives payment in full of any and all charges due. Note that although warranty service will not be available during any period of non-payment, the warranty period will continue to run during such time.
Candela’s GentleTouch device contains functionality that stores individual patient treatment-related information on the device hard drive. This enables providers to view information about past treatments when a patient returns for further treatment. This patient information may be protected under the Health Information Portability and Accountability Act of 1996 (“HIPAA”) and its implementing regulations, as amended by the Health Information Technology for Economic and Clinical Health (“HITECH”) Act. Covered entities (including covered health care providers) are not permitted to disclose patient protected health information (“PHI”) except for limited purposes. Accordingly, Candela customers are required to preserve a copy of all patient data from the device and to erase all patient information from their GentleTouch device prior to sending the device to Candela for service. Please be informed that, in the event that Candela’s service department receives a device containing PHI, then Candela will erase all PHI on the device prior to servicing the device. Candela disclaims all liability for any erased or lost patient data and information.
In addition, the following table specifies the time periods applicable to other product-specific limited warranties. Please refer to the table for additional information pertaining to the warranty coverage for Equipment purchased.
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Limitations on Warranty Components
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Laser Model
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Years of Warranty
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Cryogen case of 12
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25pk Windows kit
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PM / DYE Kit
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Alex Laser Family:
Alex Laser
AlexTrivantage
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1 through 5
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N/A
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N/A
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N/A
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GentleLASE Family
GentleLASE
GentleLASE LE
GentleLASE PRO
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1 and 2
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1
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N/A
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N/A
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3 through 5
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5
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6
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N/A
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GentleYAG Family:
GentleYAG
GYAG PRO-U
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1 and 2
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1
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N/A
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N/A
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3 through 5
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5
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6
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N/A
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GentleMAX Family:
GentleMAX
GentleMAX 755
GentleMAX 1064
GentleMAX PRO
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1 and 2
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1
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N/A
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N/A
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3 through 5
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5
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6
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N/A
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GentleTouch
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1
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N/A
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N/A
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N/A
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VBEAM Family:
VBEAM Classic
Vbeam Perfecta
Vbeam Platinum
Vbeam Aesthetica
** The first dye kit is already installed in the laser prior to the shipment.
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1 through 3
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1
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N/A
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1/Year**
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4 and 5
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2
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N/A
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1/Year**
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The Limited Warranty herein does not cover any Equipment, including applicators, which has been (i) damaged by accident, misuse (including improper storage), abuse, in the Purchaser’s transportation of the Equipment, or by an act of God, (ii) modified; (iii) used in violation of our instructions for use and operation, (iv) used for any purpose other than one for which the Equipment was manufactured, (v) damaged by unauthorized repair, or the use of unauthorized parts (vi) use by unauthorized person; and/or involves requests for repair for any problems that Syneron Candela cannot replicate or problems claimed by the Purchaser (collectively and individually “Excluded Repairs”). This Limited Warranty also does not cover any equipment, products or accessories sold or supplied with the Equipment which are manufactured by a third party.
LIMITED WARRANTY SCHEDULE – ULTRASHAPE
THE LIMITED WARRANTY IN THIS SCHEDULE APPLIES ONLY TO ULTRASHAPE EQUIPMENT.
Syneron Candela warrants to Purchaser that, subject to Purchaser’s payment of all fees due to Syneron Candela: (i) for a period of one (1) year following delivery of the Equipment, the Equipment will conform materially to its specifications provided by Syneron Candela. Syneron Candela’s sole obligation and Purchaser’s exclusive remedy for any failure of Equipment to perform as warranted above, is the correction or replacement, at Syneron Candela’s option, of the non-conforming Equipment item, provided, however that Syneron Candela has been notified by Purchaser of the non-conformity prior to expiration of the warranty period set forth above.
Each Transducer will operate in accordance with its specifications provided by Syneron Candela for one (1) year. Syneron Candela’s sole obligation and Purchaser’s exclusive remedy for any failure of a Transducer to perform as warranted above is the refund of the pro rata portion of the purchase price paid by Purchaser corresponding to the number of pulses (or other relevant criteria under the then-applicable warranty) for which the Transducer was used relative to the maximum permitted pulses (or other criteria, as applicable), provided, however that Syneron Candela has been immediately notified by Purchaser of the non-conformity. Consumables are provided without warranty of any kind. Replaced Equipment, including Transducers or parts must be returned to Syneron Candela within thirty (30) days of a claim made under warranty in accordance with instructions provided by Syneron Candela; failure to do so will result in a full charge for the part.
Without limiting any provisions limiting Syneron Candela’s liability under the agreement for sale of the Equipment, the warranty set forth herein will not apply, and, Purchaser will reimburse Syneron Candela for any costs and expenses incurred in connection with goods or services provided in the event: (i) the Equipment or any part or component thereof has been used other than in accordance with this Agreement, the product documentation or other written operating instructions or has been subject to negligence or accident by anyone other than Syneron Candela including, with respect to Transducers, use in excess of the maximum period determined by Syneron Candela, or product or parts identification labels are removed or altered; or (ii) the Equipment or any part or component thereof has been modified, repaired, serviced, maintained or altered by anyone other than Syneron Candela; or (iii) the Equipment or any part or component thereof has been combined with software, hardware or other equipment not supplied by or Ultra Shape Ltd. (“Ultrashape”); or (iv) the Equipment or any part or component thereof has been installed not in accordance with the written installation instructions provided by Syneron Candela, or other than by Purchaser; or (v) the Equipment or any part or component thereof has been damaged by causes beyond the control of Syneron Candela; or (vi) in the event the Equipment has been modified without Syneron Candela’s consent; or (vii) in the event the Equipment has been sold by the Purchaser not in compliance with this Agreement or is sold or used on a regular basis outside Canada or by a person other than the Purchaser. Purchaser will cooperate with Syneron Candela in Syneron Candela’s evaluations of claims made under the warranty set forth herein. Purchaser will reimburse Syneron Candela for all expenses and costs involved in Syneron Candela’s efforts in the event the problem for which service is sought is not covered by the warranty set forth herein.
The provisions of the foregoing warranties and the warranties contained elsewhere in this agreement are in lieu of any other warranty, whether express or implied, written or oral (including any warranty of merchantability or fitness for a particular purpose), all of which are expressly excluded.
The Purchaser must notify Syneron Candela of any defect within forty-eight (48) hours after the defect first comes to the Purchaser’s attention. Any replacement Equipment shall be, at Syneron Candela’s sole option, new or remanufactured products, and are warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. This limited warranty is not transferable nor assignable and is subject to limitations. All claims that the Equipment (as delivered) does not conform to technical specifications published by Ultrashape must be made in writing within ten (10) days after delivery to the Purchaser, and any claims not made within that period shall be deemed waived and released. Our sole responsibility with respect to such claims shall be, at our sole option, to repair or replace any Equipment or component which we determine to be defective.
The limited warranty in this Schedule is not intended for Equipment used in a mobile environment. Mobile usage will require a separate special mobile warranty package. To the extent that the Sales Agreement indicates a warranty period longer than one (1) year or any other provisions inconsistent with this Limited Warranty Schedule, this Limited Warranty Schedule shall be deemed to control. Service coverage under this Limited Warranty will be automatically suspended during any periods of non-payment of any charges due to Syneron Candela by the Purchaser (including if a cheque does not clear). Limited Warranty service coverage shall recommence when Syneron Candela receives payment in full of any and all charges due. Note that although warranty service will not be available during any period of non-payment, the warranty period will continue to run during such time.