Aesculight’s Warranty Provisions

Aesculight’s Warranty for Aesculight Products.

Aesculight warrants that, for a period of 12 months (but only 3 months for used or refurbished products) after the delivery date, the Product or Equipment purchased (not including consumable or disposable components or accessories) will be free of defects in materials and workmanship and will function in substantial conformity with Aesculight’s specifications. This warranty shall not apply to (and Aesculight shall have no obligation with respect to) any alleged defect to the extent of: (i) any alteration, addition, attachment to, or modification of the Equipment not authorized in advance in writing by Aesculight that interferes with normal and satisfactory operation or maintenance; (ii) noncompliance with instructions for use or environmental specifications for the Equipment; (iii) use of any accessories to the Equipment not supplied by Aesculight; (iv) repair or maintenance of the Equipment by any party not authorized in advance in writing by Aesculight; (v) neglect, misuse, accidents, failure of electrical power, air conditioning, humidity control, or other acts or conditions not within the reasonable control of Aesculight; (vi) any defect in connection with which Customer fails to notify Aesculight of the defect within 10 days of the date the defect was or should have been discovered. During the warranty period, products will be repaired or replaced at Aesculight’s sole option. Such repair or replacement shall be Aesculight’s sole obligation and Customer’s sole remedy. Products replaced under this warranty shall be warranted for the remaining unexpired period of warranty only. No representation or warranty shall arise from any description of, or claims regarding, the product or its effectiveness or ability to achieve any particular clinical results or financial results, whether written or oral, contained in specifications, samples, bulletins, marketing or promotional materials or similar statements made or furnished to Customer by any person.

Warranty for Products or Accessories Manufactured by Others.

Aesculight makes no warranty as to any equipment, parts or accessories sold to Customer which have been manufactured by others (other than goods that have been refurbished by Aesculight). For products not manufactured by Aesculight, it extends to the Customer only the warranties, if any, provided by the manufacturer, which are capable of being passed on to the Customer.

Disclaimer of Other Warranties.

AESCULIGHT MAKES NO OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND WHATSOEVER, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES AS TO WORKMANSHIP, SUITABILITY OF MATERIALS, MERCHANTABILITY, OR THAT THE MATERIALS PROVIDED ARE FIT FOR, OR MAKE THE PRODUCT SUITABLE FOR A PARTICULAR PURPOSE.

Warranty Claims.

All claims for alleged defects in goods shall be deemed waived unless made in writing and delivered to Aesculight within ten (10) days after receipt of goods by the Customer. Aesculight’s liability, if any, shall be limited to the stated selling price of any defective goods. Goods shall not be returned to Aesculight without Aesculight’s prior written permission.

Aesculight’s Terms and Conditions of Sale

Sale.

This Purchase Agreement (“Agreement”) consists of page 1 detailing the list and prices of the products and/or services included in this purchase and sale, and these Terms and Conditions. When signed by Buyer and by Aesculight on page 1, this Agreement shall be a binding contract for the purchase and sale of products and/or services described on page 1.

Taxes and Other Charges.

Buyer shall pay all taxes, fees, duty, levy, or charges imposed by any governmental authority. Applicable sales taxes will be invoiced unless Buyer supplies a valid tax-exempt certificate prior to delivery. Buyer shall reimburse Aesculight for all taxes, excise or other charges which Aesculight may be required to pay to any government upon the sale or transportation of the products or services sold.

Security Agreement.

To secure the purchase price, Buyer hereby grants Aesculight a first-priority security interest in the equipment, parts and accessories, and the proceeds thereof, purchased pursuant to this Agreement. Buyer grants Aesculight a limited power of attorney, coupled with an interest, to execute financing statements and other documents or to take any other action in the name of Buyer necessary to perfect the security interest granted herein. Buyer unconditionally agrees to execute such other or additional documents as may be necessary for the enforcement or protection of Aesculight’s security interest.

Prices and Payment.

Payment is due as set forth on page 1 of this Agreement. All credit card payments are subject to 3% financial fee charge. Accounts 30 days or more past due shall accrue interest at the rate of 12% p.a. or, if less, the maximum rate permitted by law. Buyer shall pay all reasonable costs and fees (including attorney’s fees) incurred in collecting monies due or to become due hereunder. In the event Buyer fails to fulfill the terms of payment or in case Aesculight shall have any doubt at any time as to Buyer’s financial responsibility, Aesculight may decline to render further services and to make further deliveries except upon receipt of cash or satisfactory security.

Delivery.

Buyer is responsible for freight charges. All shipments are insured for the benefit, and at the expense, of Buyer. If Buyer cancels an order before delivery, Buyer shall pay a 15% cancellation charge and other expenses incurred. The title and risk of loss shall pass to Buyer, and delivery shall be deemed completed, upon Aesculight’s tender of the product to a common carrier.

Risk of Loss.

The acceptance of shipments of products by first carrier shall constitute a delivery to the Buyer, and title transfers and the risk of loss transfers to the Buyer at that point; the carrier is deemed to be the Buyer’s agent.

Limited Warranty.

Aesculight warrants that its products will be free from defects in materials and workmanship and will conform to Aesculight’s technical specifications. This Limited Warranty shall continue for a period of time specified in on page 1 of this Agreement, or if no such period is specified, for twelve (12) months. During the warranty period, products will be repaired or replaced at Aesculight’s sole option, which shall be Aesculight’s sole obligation and Buyer’s sole remedy hereunder, and shall be conditioned upon Aesculight receiving written notice of such claimed defect within ten (10) days after its discovery and, at Aesculight’s option, return of such products at Buyer’s risk and expense to Aesculight’s facility. This warranty covers laser loaner use; loaner ships the same day if requested before 12pm PST; loaner shipping is not covered by this warranty. Loaner late return fee $99.00 per day applies if loaner is not shipped back to Aesculight within two (two) business days upon receipt of repaired laser. This warranty shall not apply to any alleged defect to the extent of: (i) any alteration of the product not authorized in advance in writing by Aesculight; (ii) noncompliance with instructions for use and storage; (iii) use of any accessories to the product not supplied by Aesculight; (iv) repair or maintenance of the product by any party not authorized in advance in writing by Aesculight; (v) neglect, misuse, accidents, failure of electrical power, air conditioning, humidity control, or other acts or conditions not within the reasonable control of Aesculight; (vi) any defect in connection with which Buyer fails to notify Aesculight of the defect within ten (10) days of the date the defect was or should have been discovered; (vii) the product is resold, leased or rented to or for the use by any person other than the original Buyer. Products replaced under this warranty shall be warranted for the remaining unexpired period of warranty only. Aesculight makes no warranty as to its accessories sold to Buyer, except for warranty stated in the user’ manual of such accessories. Aesculight makes no warranty as to any equipment, parts or accessories sold to Buyer which have been manufactured by others. The above limited warranty is exclusive and in lieu of all other representations of Aesculight, expressed or implied, written or oral; Aesculight disclaim and exclude any implied warranty, including, without limitation, warranties of merchantability and fitness for a particular purpose. In no event shall Aesculight be liable for loss of use, loss of profit, punitive damages, attorney’s fees, consequential, incidental or special damages, or any other direct or indirect damages whatsoever.

Exclusions.

No representation or warranty shall arise from any description of, or claims regarding, the product or its effectiveness to achieve any particular clinical result(s), whether written or oral, contained in specifications, samples, bulletins, marketing or promotional materials or similar statements made or furnished to Buyer. Use of the product requires the exercise of sound medical judgment, and clinical results may vary based on operator’s skill and experience, patient suitability, patient response to treatment, and other factors beyond the control of Aesculight. Aesculight make no representation or warranty of revenue or profits from use of the product, and no such representation or warranty shall arise from projections, studies, illustrations, marketing or promotional materials, or other statements or materials made or furnished to Buyer.

Warranty Claims, Inspection and Returns.

Products shall not be returned to Aesculight without Aesculight’s written permission. Buyer shall inspect each product and read the owner’s manual (and accompanying documentation) upon arrival and shall, within 10 days after receipt, give written notice to Aesculight of any error or claim that the product does not conform to terms of this Agreement. Buyer’s failure to give such written notice shall constitute Buyer’s unqualified acceptance and waiver of all non-conformity claims, including any right to revoke acceptance. Orders may not be cancelled after delivery, and delivered products may not be returned without Aesculight’s prior written consent, and at Aesculight’s sole discretion. Accepted returns are subject to the charges, terms and requirements notified in writing to Buyer (which may include, without limitation, a 15% restocking fee). No acts on the part of Aesculight, including but not limited to, Aesculight’s receipt of a returned product from Buyer, shall constitute Aesculight’s approval and acceptance of a returned product or cancelled order, unless Aesculight has provided its prior written consent to Buyer.

Indemnification by Buyer.

Buyer agrees to indemnify and defend Aesculight (including its parent, subsidiaries, and related companies and its and their officers, directors, employees, agents, and consultants) from and against all losses, expenses, damages, demands, claims, suits, and other liabilities (including, without limitation, reasonable attorneys’ fees) arising out of (i) any bodily injury, death, or property damage which occurs, either directly or indirectly, in connection with Buyer’s possession, handling, or use of the product, and (ii) any fine or penalty for Buyer’s violation of any law or regulation applicable to Buyer’s possession, handling, or use of the product.

Limitations on Aesculight’s Liability.

Aesculight warrants its products and services to be as specified, and it shall be liable (i) only for the actual cost of further repair time or replacement of products which do not conform to specifications, or (ii) at Aesculight’s sole option, to refund the amount paid by Buyer. Aesculight’s liability, if any, shall be limited to the stated selling price of any defective products. Buyer’s remedies set forth herein are exclusive, and under no circumstances shall Aesculight be liable for any consequential (including lost profits), incidental, indirect, special or punitive damages, bodily injury or property damage arising out of this Agreement or as a result of any defect or failure of any item or workmanship or treatment for any reason, whether or not such loss or damage is based on breach of contract, warranty, negligence, indemnity, strict liability or otherwise. Buyer is fully responsible for ensuring that the equipment is used only in a safe and proper manner, by properly trained and licensed individuals. Buyer’s use of the equipment is at its own risk.

Risks Associated with Use of Medical Devices.

Aesculight is only willing to sell its products on the condition that the Customer assumes all risks associated with the use or misuse of such products. Customer acknowledges that the equipment consists of sophisticated electronic equipment capable of emitting powerful laser energy. If the equipment is not used properly, severe injury and/or property damage, including death, could result. As such, Customer is fully responsible for ensuring that the equipment is used only in a safe and proper manner, by properly trained and licensed individuals, and in full compliance with all instructions for use provided by Aesculight. Customer’s use of the equipment is at its own risk. Aesculight cannot and does not make any recommendations of a medical nature or any recommendations for the use of any particular item of equipment for any medical procedures. Aesculight does not provide or make any assurances regarding the efficacy of medical treatment with its products. The sale of certain medical devices is regulated by the U.S. Food and Drug Administration (FDA) and/or state and local regulatory agencies. Certain medical devices can only be used by appropriately licensed individuals. If you have questions about legal obligations regarding sales or uses of medical devices, you should consult with the FDA’s Center for Devices and Radiological Health.

Proprietary Rights.

The purchase and sale of the products hereunder to Buyer shall in no way be deemed to confer upon Buyer any right, interest or license in any patents, patent applications, designs, copyrights, trademarks, service marks or trade names Aesculight may have covering the products. Buyer warrants that it will not, and will not permit or assist others to, divulge, disclose, or in any way distribute or make use of such proprietary information, and that it will not, and will not permit or assist others to, modify, reverse engineer or manufacture any such products.

Financing and Assignment.

This Agreement binds Buyer, regardless of any financing arrangements, subrogations or assumptions. Buyer may not assign its rights or delegate its obligations hereunder except with the prior written consent of Aesculight.

Lease Finance Transactions.

In the event Buyer chooses to finance the purchase of the products pursuant to a finance lease, true lease or similar transaction resulting in a contract for sale being entered into between Aesculight and a third party for purposes of financing, Buyer agrees to the following additional provisions: (A) Solely as an accommodation to Buyer, Aesculight may contract with a third party providing Buyer a lease or similar financing of the products. In the event any third party contracting to take title to the products for lease to Buyer should fail to pay Aesculight for the products, for any reason other than Aesculight’s failure to perform hereunder, Buyer shall remain liable to Aesculight for each and every obligation under this Agreement including the obligation to pay for all products purchased under this Agreement in a timely manner. (B) Notwithstanding any provision of any lease entered into by Buyer, or any agreement for purchase of the products entered into for purposes of financing between Aesculight and any third party, Buyer agrees to adhere to the terms and time deadlines for inspection described in above in this and other paragraphs, and specifically covenants with Aesculight to provide Buyer’s lessor and Aesculight with any acceptance and delivery certificate or similar document required by such lessor within ten (10) days after receipt of the products, absent a claim of error or non-conformity as permitted by above in this and other paragraphs.

Dispute Resolution.

Any dispute shall be determined by binding and non-appealable arbitration under the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by a single arbitrator chosen by the parties, or, if the parties cannot agree upon a single arbitrator within thirty (30) days, then by a single arbitrator appointed by the Seattle, WA office of such association. The arbitration shall be conducted through the Seattle, WA office of such association, and shall take place at a location in King County, WA. The arbitration costs shall be divided and borne equally by the parties. This Agreement shall be governed by and construed according to the laws of the State of Washington, exclusive of conflicts of law provisions that would permit or require the application of the laws of a different jurisdiction. The 1980 U.N. Convention on Contracts for the International Sale of Goods hereunder shall not govern the rights and obligations of the parties. Any action for breach of this Agreement must be commenced within one (1) year from such breach or be barred forever.

Entire Agreement.

This Agreement constitutes the entire agreement among Aesculight and Buyer and supersedes all prior or contemporaneous promotional material, contracts, agreements, statements, promises, representations, warranties, purchase orders or quotations, whether written or oral. By confirming the order in writing on page 1 of this Agreement, Buyer acknowledges that have Buyer have read and understood these Terms and Conditions. No modifications of this Statement of Terms and Conditions shall be binding unless in writing and signed by Aesculight’s authorized agent, regardless of Aesculight’s failure to object or Aesculight’s shipment of products.