These Terms and Conditions of Sale (“Terms”) are by the Syneron Candela group company named in the Purchase Agreement (“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, provincial, 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 Hong Kong Dollars by bank transfer 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, payable upon Syneron Candela demand. 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 due 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, recovery of the Equipment, 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 the Section entitled Title) 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 the Section entitled Representation and Warranties of Purchaser).
5. Delivery: All sales are DPP Syneron Candela manufacturer or distributor location (Incoterms 2010). Without in any way limiting the generality of the Section entitled Disclaimers, Syneron Candela shall not be liable for any Damages (as defined in the Section entitled Indemnification by Purchaser) 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) subject to the Section entitled Title with all remaining terms and conditions of the Related Documents remaining in full force and effect.
7. Title: Purchaser agrees that title to Equipment and Collateral (defined below) shall not transfer to Purchaser until Syneron Candela has received full payment and performance by Purchaser of its liabilities and obligations to Syneron Candela under the Related Documents or otherwise (“Purchase Obligations”). “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 amount of the Purchase Obligations, 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 shall keep Equipment separately from its own assets and equipment and identifiable as Syneron Candela's property (for the period until title to Equipment and Collateral transfers to Purchaser under these Terms). 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 title 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 protect Syneron Candela’s ownership of Collateral.
8. Limited Manufacturing Warranty: Equipment is warranted only under the Limited Warranty Schedule attached to these Terms and Conditions. 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 WARRANTIES 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, SATISFACTORY QUALITY, 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 CONSTRUED 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, INDIRECT, 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. SYNERON CANDELA IS NOT LIABLE UNDER THESE TERMS FOR ANY LOSSES OF REVENUE, BUSINESS OPPORTUNITY, PROFIT OR SAVINGS. 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 infringement of a valid patent by 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, (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: a) arising from the use or sale of products manufactured in accordance with any designs or specifications provided by Purchaser, b) modifications made to the Equipment without Syneron Candela’s specific written approval, or c) 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. Confidentiality: These Terms, together with the Purchase Agreement, are considered confidential information (“Confidential Information”) of Candela. Purchaser shall maintain all Confidential Information in strict confidence and shall not disclose Confidential Information to any third party.
15. 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 its obligations under any of the Related Documents and Purchaser shall on request execute such documents recording Syneron Candela’s transfer of such obligations.
16. 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, applicable export and import laws, 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”).
17. Governing Law, Jurisdiction, Venue, and Waiver of Jury Trial: The Related Documents and any related claims 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. Notwithstanding the foregoing, Syneron Candela reserves the right to institute proceedings against Purchaser at any time before a court of competent jurisdiction under applicable law. The parties expressly waive the applicability of the UN Convention on the International Sale of Goods 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 CONSTITUTES A SPECIFIC AND MATERIAL ASPECT OF THESE TERMS AND THAT THE PARTIES WOULD NOT HAVE ENTERED INTO THE RELATED DOCUMENTS IF THIS SECTION WERE NOT INCLUDED IN THESE TERMS.
18. 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, including the use of unauthorized parts in or service of the Equipment; (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, and any of Purchaser’s employees, contractors and agents, 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. For the avoidance of doubt, Purchaser accepts all liability and agrees to indemnify Syneron Candela for any damage to persons and/or property caused by the use of Equipment that has been serviced by unauthorized service personnel or uses unauthorized parts.
19. 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.
20. 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; (f) Purchaser and any of Purchaser’s employees, contractors and agents using the Equipment have the knowledge, training, skills, experience and qualifications to do so; and (g) Purchaser is, and will remain, in compliance with all Applicable Laws, and has, and will maintain, types and amounts of liability insurance sufficient to cover the use of the Equipment by Purchaser and its employees, contractors and agents. Purchaser shall not sell Equipment outside of the country in which it was purchased.
22. 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. The Purchaser covenants that it has not relied on any representation in entering the Purchase Agreement which is not set forth in it or these Terms. 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. These Terms benefit the Purchaser and Syneron Candela only and do not confer any benefit on any third parties.EXHIBIT A
LIMITED WARRANTY SCHEDULE
Syneron Candela grants a limited warranty as outlined below, to the original Purchaser of the new Equipment listed in the Purchase Agreement attached hereto, excluding accessories and consumable products (the “Limited Warranty”). The Limited Warranty provides that Equipment will be free from defects in material and/or workmanship for a period of one (1) year from the Purchase Date listed in the Purchase Agreement (“Warranty Period”). This Limited Warranty extends solely to the Purchaser who purchased the Equipment from Syneron Candela and is not transferable or assignable by the Purchaser.
Upon receipt of written notice of defects during the Warranty Period, Syneron Candela will, at its sole option, either repair or replace any part of the hardware components, fiber delivery system or other Equipment, if any, that it determines is defective. The Purchaser must notify Syneron Candela of any defect as soon as possible after the defect first comes to the Purchaser’s attention. Syneron Candela may replace Equipment, at its sole option, with new or remanufactured products which shall be warranted for the remainder of the original Warranty Period or thirty (30) days from the date of shipment to Purchaser, whichever is longer. This limited warranty is not transferable or assignable and is subject to the limitations herein.
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 check 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.
Purchasers are required to preserve a copy of any patient data from the device and to erase all patient information prior to any replacement of Equipment. In the event that Syneron Candela receives Equipment containing patient information protected under applicable laws, then Syneron Candela may erase such data. Syneron Candela disclaims all liability for any erased or lost patient data and information.
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 the instructions for use and operation, (iv) used for any purpose other than one for which the Equipment was manufactured, (v) repaired by an unauthorized service provider (vi) used with unauthorized parts and/or (vii) used by unauthorized persons, (collectively and individually “Warranty Exclusions”). This Limited Warranty does not cover any equipment, products or accessories sold or supplied with the Equipment which are manufactured by a third party. The occurrence of any Warranty Exclusion voids this Limited Warranty.
Fees will apply to requests for Syneron Candela service after voiding, termination or expiration of warranty or Service Agreement.