Terms US

TERMS AND CONDITIONS ADDENDUM TO CUSTOMER PURCHASE AGREEMENT BETWEEN CUSTOMER AND COMPANY

This Terms and Conditions Addendum to Customer Purchase Agreement between Customer and Company (this “Addendum”) is incorporated into the Customer Purchase Agreement governing the purchase of System(s) from Company by Customer (and any order form, statement of work, purchase order, or other ordering document issued thereunder). Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the Customer Purchase Agreement.

As further set forth below, Company reserves the right to amend the terms of this Addendum at any time. Accordingly, Customer is directed to review the terms of this Addendum carefully, as they govern each party’s respective rights and responsibilities with respect to the purchase and maintenance of System(s).

The parties agree as follows:

I. Purchase Restrictions

All sales and purchases under the Customer Purchase Agreement are final and non-refundable. Company grants no right of return to Customer for any purchased System or other items.
Due to continuing System improvements, prices and specifications set forth in the Customer Purchase Agreement are subject to change without prior notice (to the maximum extent permitted under applicable law).
Company reserves, and the Customer grants to Company, a security interest in any System sold, and all proceeds to secure full payment of all amounts due under the Customer Purchase Agreement. If Customer defaults or breaches any term of the Customer Purchase Agreement or this Addendum, Company has the unconditional and irrevocable right to enter Customer’s place of business or facility and retake possession of the System or any other purchased items, and Customer expressly agrees to permit and cooperate with any such effort by Company (including without limitation by providing requisite access to the relevant facility). Customer further agrees that while any amount due on the System is owed by Customer to Company, Customer may not transfer, pledge, hypothecate, offer as collateral, or encumber the System.
Any payments under the Customer Purchase Agreement which are past due shall accrue interest on the unpaid amount at a rate equal to the lesser of: (i) one and one-half percent (1.5%) per month; or (ii) the highest rate permitted under applicable law. In addition, and without prejudice to any other remedy available to Company, Customer shall reimburse Company for its reasonable costs and expenses incurred in any effort to collect payments under the Customer Purchase Agreement which are past due.

II. General Ownership Conditions and System Use

FOB Origin. With respect to the System(s) and any other items purchased under the Customer Purchase Agreement, Customer assumes title and control of the goods the moment the carrier signs the bill of lading. Customer assumes all risk of loss during transportation and is responsible for filing claims for such loss or damage, and is responsible to obtain insurance for coverage of any claims for loss or damage which may occur during transportation.
Customer Responsibility for System Use, Results and Care. Company makes no representations or warranties regarding compliance with federal, state, or local laws, rules, or regulations, or medical or treatment guidelines that might apply to the sale, use, or operation of the System. Company is not providing medical care, assistance, or advice to Customer or its patients or clients. Nothing herein or in the Customer Purchase Agreement shall be construed as any substitute for the advice or analysis of any medical professional. Customer has the sole responsibility for the supervision and provision of any medical and/or surgical case or other procedures performed through, in conjunction with, or by the use in any way, of the System. Customer agrees to indemnify, defend, protect, and hold Company, its affiliates, and its and their respective employees, officers, agents, successors, and assigns (collectively, “Indemnitees”) free and harmless from and against any and all claims, loss, or liability (including but not limited to costs, damages, demands, debts, expenses, and reasonable attorney’s fees and costs) that may arise through any claims for bodily injury, personal harm, death, or other damage arising out of the use or operation of the System.
Company Limitation of Liability. Customer understands and agrees Company’s liability in any claim brought in relation to the subject matter of the Customer Purchase Agreement shall not under any circumstances exceed the amount of the unit price stated in the Customer Purchase Agreement for the System or item giving rise to said claim (or paid by Customer to Company, if different, whichever is the lower amount). Customer further understands that Customer shall be fully liable for all indirect, special, incidental, consequential, and/or exemplary damages related to Customer’s use, operation, maintenance and handling of the System, including but not limited to incidental or consequential damages for injury to person or property, lost profits, lost sales, or any other incidental or consequential loss, whether foreseeable or not, and whether related to any actions or conduct by Customer, or Customer’s staff, assistants, contractors, or employees.
System Restrictions and Purchase Authority. Federal, state, or local law may restrict the sale of the System to or at the order of a physician, healthcare professional, dentist, or other practitioner licensed in the state, territory, municipality, or other jurisdiction in which the System is used or ordered. Customer warrants and represents that Customer is either (a) a practitioner licensed by the law of the state in which the Customer practices to use, or order the use of, the System (an “Authorized Practitioner”), or (b) purchasing the System pursuant to a prescription or other order issued by an Authorized Practitioner with appropriate and applicable licensing for use of the System in Customer’s state. Customer is solely responsible for knowing the licensing requirements by any applicable state or federal governing board or regulatory body with regard to the ownership, operation, and use of the System, including all procedures performed with the System, in the state in which the System will be used. Customer warrants and represents that Customer has had opportunity to investigate such requirements, as well as the opportunity to consult with legal counsel or independent advisers on these matters, and is choosing to purchase the System based upon Customer’s own judgment, research, and/or advice. No communication (written or oral) that the Customer has received from Company, its parents, employees, principals, or agents shall be deemed to be an assurance or guarantee that Customer or anyone in Customer’s practice can legally operate or use the System, and Customer is not relying on any such communication in choosing to purchase the System. Customer will ensure that, when necessary, the System will only be operated or utilized under proper supervision or at the required direction of a medical or health care practitioner in accordance with all applicable laws, rules, and regulations. Customer accepts sole responsibility for ensuring that any operator of the System is licensed and qualified to use and operate the System safely and properly in a clinical setting and to perform medical procedures in accordance with all laws, rules, regulations, and guidelines (including without limitation industry self-regulatory guidelines) applicable to the System in the state in which the System will be used. Customer will defend, indemnify, and hold Company and its Indemnitees harmless against any and all claims, actions, or liability of any kind related to Customer’s purchase, or the operator’s use, of the System, caused by or related to licensing requirements, prescriptive authority, or legal ability to operate the System under any state, federal, or industry self-regulatory board rules, regulations, or guidelines.
Software Licensing Term for System. The System purchased by Customer may require use of System specific software. If such software is required as part of Customer’s purchase of the System, Customer acknowledges and understands that Customer will be given a license by Company to use the System specific software solely on a license basis, and Customer will be given no ownership rights, proprietary rights or intellectual property rights to the software or any program coding for the software. Customer’s use of the System software for any purpose other than operation of the System will be in violation of its license, and Customer has no right to transfer, sell, encumber, or alter the software or any of the software’s program coding. Customer acknowledges that Customer (or Customer’s authorized end users, as applicable) may be required to accept an end user license agreement or similar legal terms of use prior to accessing the features or functionalities of such software as presented therein, and expressly agrees to ensure that both Customer and its respective applicable end users comply with the terms thereof.
No Assignment. Except as otherwise permitted by the Customer Purchase Agreement or as agreed by Customer and Company in writing, the Customer Purchase Agreement is not transferable or assignable by Customer.
Third Party Products. To the extent that Customer purchases certain products or equipment from third parties, whether or not any such products or equipment are procured or ordered by Company on behalf of Customer, the terms and conditions of such third party covering such products or equipment shall be applicable to and controlling on Customer. Any such third-party products or equipment ordered through Company shall be sold to Customer directly from the applicable third party, and Customer’s sole and exclusive warranty and remedies with respect to such products or equipment (if any) shall be set forth in Customer’s agreement with the applicable third party.
Third Party Education and Training. Where Customer purchased supplemental third-party education courses or training for use of their System, Customer is advised that the information contained in such third-party education was created, designed, and written by a third-party medical professional and/or independent contractor and not a Company employee. The information provided in such education reflects his or her years of medical experience, practice, and judgment. Company makes no representations or warranties concerning this training, individual experiences, or results, which may vary, and expressly disclaims any liability arising from or relating to Customer’s purchase of or attendance at any such supplemental education. Company was not involved in the design or preparation of the supplemental educational content, which may not reflect the opinions or views of Company, its parent or affiliate companies, or any of their contractors.
Termination of Use. Customer acknowledges that its use of the System is subject to compliance with the usage and other requirements described in the Customer Purchase Agreement (including, without limitation, the “System Restrictions” provision above). Customer’s authorization to operate the System and any license granted to the software will terminate automatically in the event Customer fails to comply with such requirements.
Company’s Additional Remedies. In the event of any breach by Customer of the terms of the Customer Purchase Agreement (including without limitation this Addendum), in addition and without prejudice to any other remedies available to Company under applicable law, Customer expressly agrees that Company will have the right to (i) refuse to sell any additional System or associated items to the Customer, including but not limited to supplies and consumables; and/or (ii) withhold or delay delivery of any purchased System or associated items to the Customer, including but not limited to supplies and consumables, until such time as Customer has cured said breach in full.
Attorneys’ Fees and Costs. In the event Customer or Company brings any suit, action, or other legal proceeding (including arbitration) relating to the subject matter, interpretation, or enforcement of the Customer Purchase Agreement (including without limitation this Addendum), the prevailing party (as determined by the court, agency, arbitrator or other authority before which suit, action, or legal proceeding or arbitration is commenced) shall, in addition to such other relief as may be awarded, be entitled to recover reasonable attorneys’ fees, expert witness fees, statutory and non-statutory expenses, costs of suit, and investigation fees incurred (including, without limitation, reasonable attorneys’ fees, expert witness fees, expenses and costs incurred in appellate proceedings, in establishing the right to indemnification, or in any action or participation in, or in connection with, any case or proceeding under Chapter 7, 11, or 13 of the Bankruptcy Code, 11 U.S.C. 101 et seq. or any successor statutes).
Venue and Choice of Law for All Disputes. Customer agrees that in the event there is any dispute arising out of or relating to the Customer Purchase Agreement and/or this Addendum, the venue for any such dispute shall be within the State of Delaware, which shall have sole and exclusive jurisdiction for any dispute. The Customer Purchase Agreement and this Addendum shall be governed by and construed according to the laws of the State of Delaware, without regard to conflict of law principles thereunder.
Integration Clause. This Addendum and the Customer Purchase Agreement comprise the entire agreement and all of the terms of the agreement between the Customer and the Company governing their subject matter, and no other term, provision, or arrangement may be considered, written or oral.
Amendment. Please note that Company reserves the right to change the terms and conditions of this Amendment at any time by posting a revised set of terms to this location, or by mailing and/or emailing notice thereof to Customer (or such other method as may be required or permitted by applicable law). Customer expressly agrees to comply with the then-current version of the Addendum at all times during the term of the Customer Purchase Agreement.

III. Warranty Information

System Warranty
(a) Company warrants to Customer, as the original purchaser of the System (except for consumables and accessories), that the System materially complies with the requirements of the Customer Purchase Agreement and the specifications set forth in the System documentation provided by Company. The foregoing warranty will apply for a period of twelve (12) months from the date of Company’s first shipment of the applicable System, so long as the System is used by Customer as instructed and pursuant to its operational guidelines. Such warranty shall include coverage for System defects, malfunctions, failures, or operational problems, in each case due to the System’s noncompliance with the applicable specifications as herein stated. Customer shall promptly notify Company of any claim of a System’s noncompliance with the foregoing warranty. Following Company’s receipt of such notification and confirmation of the noncompliance, Company shall, at its option and discretion, either (i) repair the System so that it conforms to the warranty, or (ii) replace the System at no additional cost to Customer (with such replacement to be shipped in accordance with the terms of this Addendum).
(b) This warranty will become immediately and automatically void and unenforceable if Customer improperly uses, operates, transports, maintains, or alters the System, or permits or otherwise facilitates any third party’s performance of the same, including without limitation in any attempt to repair, replace, or otherwise remediate the affected System independently from Company.
(c) Consumables and accessories are warranted for a period of thirty (30) days from the date of shipment. System replacement parts other than said consumables or accessories that are purchased outside of this warranty period are warranted for a period of thirty (90) days from the date of shipment from Company.
(d) No express or implied warranties are made by way of this Addendum other than as stated herein, and Customer acknowledges that any additional warranty coverage provided by Company must be memorialized in a writing from the Company whether it is for goods, products, or services. THE FOREGOING WARRANTIES WITH RESPECT TO THE SYSTEM ARE THE SOLE AND EXCLUSIVE WARRANTY OBLIGATIONS OF COMPANY. THERE ARE NO OTHER AGREEMENTS, GUARANTEES, OR WARRANTIES, ORAL, WRITTEN, EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED BY COMPANY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. COMPANY SHALL NOT BE LIABLE FOR LOST PROFITS OR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES DUE TO ANY CAUSE, WHATSOEVER, EVEN IF ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. THE CUSTOMER AGREES THAT COMPANY’S LIABILITY IS SO LIMITED.
INMODE RF & IPL & LASER Handpiece Warranty. Company warrants that the handpiece is free from defect for a period of one (1) year or 100,000 pulses, whichever comes first. All other parts of the device are covered for the remainder of the original warranty. THE OBLIGATIONS OF COMPANY UNDER THIS WARRANTY ARE LIMITED, IN ITS EXCLUSIVE OPTION, TO REPAIR OR REPLACE PARTS AND MATERIALS WHICH PROVE TO BE DEFECTIVE. Any warranty stated herein is null and void a) where the System is unpacked, installed, serviced, and/or repaired by person(s) other than an authorized Company service representative; b) where service is required due to the Customer’s failure to operate or maintain the System in an manner consistent with the specifications and guidelines set forth in the System’s operator manual; and/or c) where service is required due to attempted or actual dismantling, disassembling, alteration, and/or modification of the System by person(s) other than an authorized Company service representative. Additional services, including, but not limited to telephone support, repair, maintenance, and refurbishment of equipment, may be purchased. THE FOREGOING WARRANTIES ARE THE SOLE AND EXCLUSIVE WARRANTY REMEDIATION OBLIGATIONS OF COMPANY FOR THESE PRODUCTS AND THE REMEDY PROVIDED HEREIN IS IN LIEU OF ANY AND ALL OTHER REMEDIES. THERE ARE NO OTHER AGREEMENTS, GUARANTEES, OR WARRANTIES, ORAL, WRITTEN, EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCTS, EQUIPMENT OR SERVICES ORDERED THROUGH COMPANY ON BEHALF OF CUSTOMER AND PURCHASED BY CUSTOMER FROM THIRD PARTIES. COMPANY SHALL NOT BE LIABLE FOR LOST PROFITS OR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES DUE TO ANY CAUSE WHATSOEVER EVEN IF ADVISED AS TO HE POSSIBILITY OF SUCH DAMAGES. THE CUSTOMER AGREES THAT COMPANY’S LIABILITY IS SO LIMITED.
Limitation on Return of System or Goods. Company may at its option and discretion elect to coordinate the return of System or other items as part of the warranty remediation procedure set forth under this Section and any other warranty documentation provide to the Customer. Customer acknowledges that no System that is damaged, altered, improperly maintained, or used in a manner for which it was not intended or designed will be accepted by Company upon return shipment without prior approval from Company’s Customer Care Department, which may be contacted at +1 (855) 411-2639. All returned Systems or associated items must be accompanied by a RETURN MATERIALS APPROVAL document issued by Company from its Customer Care Department. No returns will be accepted without the appropriate documentation.

IV. Terms Applicable to Launch Events

This section and the following terms apply only if Company has agreed in writing to assist Customer with services in support of a Launch Event for a System as part of a capital equipment sale.

Company has agreed to provide certain services (the “Services”) to Customer related to the System as part of a capital equipment sale. Company has provided Customer with the details of the Services that Company will provide to Customer to assist with Customer’s launch of the System. The Services are subject to the terms and conditions set forth below (the “Terms”):

Customer agrees and acknowledges that the Services are limited to those set forth in writing by the Company.
Company shall have no obligation to provide any Services until the System is paid for in full pursuant to the Customer Purchase Agreement. Customer’s failure to pay for the System in full shall not extend or delay the Termination Date (as defined below).
Any agreement to provide Services will expire nine (9) months from the date of the shipment of the System to Customer (the “Termination Date”). Company may, at its sole discretion, agree to, but has no obligation to provide any Services after the Termination Date.
Customer expressly acknowledges and agrees that Customer’s failure or inability to procure the Services prior to the Termination Date shall not entitle Customer to any refund, discount, or rebate of any portion of the purchase price paid for the System or for any future device purchase.
The Services are for the use and benefit of Customer only and may not be transferred or assigned to any other party. In addition, purchase of a System does not entitle a person or entity to the Services. Only persons or entities that have received a writing from the Company identifying that particular person or entity as a Customer are eligible to receive the Services.
Customer will provide all information and assistance required by Company in order for Company to provide the Services. Company shall not be responsible for any delays in provision of the Services (including failure to provide the Services prior to the Termination Date) arising from Customer’s failure to provide information as and when requested. Customer understands and acknowledges that Customer’s failure to provide the cooperation required in this Section 6 will impact the Services.
The Services are provided “AS-IS”, and Company makes no representations, warranties, or guarantees regarding the Services or the results thereof. TO THE FULLEST EXTENT ALLOWABLE BY APPLICABLE LAW, COMPANY DISCLAIMS AND EXCLUDES ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PURPOSE.
COMPANY SHALL HAVE NO LIABILITY TO CUSTOMER FOR ANY DAMAGES, CLAIMS, EXPENSES, COSTS, OR OTHERWISE RELATED TO OR ARISING OUT OF THE SERVICES, INCLUDING BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES DUE TO ANY CAUSE WHATSOEVER EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Customer shall hold harmless, indemnify, and defend Company and its affiliates and its and their respective employees, officers, shareholders, members, managers, agents, representatives, and insureds from all damages (including any damage to property or personal or bodily injury or death), claims, liabilities, costs, and expenses (including costs of defense and attorneys’ fees) arising from or connected with the Services or Customer’s or its employees, agents, representatives, or invitees acts or omissions.
The Company’s written statement of Services and these Terms set forth the entire understanding of Company and Customer with respect to the subject matter hereof and entirely supersede all prior agreements, arrangements, and communications (whether written or oral) regarding such subject matter.
This Addendum may be amended by Company at any time without notice to Customer. Customer should check this link regularly to determine if any updates have been made.
The Services and these Terms shall be governed by and interested in accordance with the laws of the state of Delaware. Any dispute arising out or relating to the Services or the Terms shall be determined by state or federal courts in the State of Delaware, which shall have sole and exclusive jurisdiction over any such dispute.

V. Terms Applicable to Upgrade Program

The following terms (the “Upgrade Terms”) are applicable to Customer’s purchase of an original system (“Original System”) at a discounted price as part of the Company’s program allowing such Customers to upgrade from the Original System to an upgraded system (“Upgraded System”) at a reduced price (the “Upgrade Program”) as set forth in a Customer Purchase Agreement between Company and Customer. Company has sole discretion to determine whether a Customer may participate in the Upgrade Program, and no purchases are deemed included in the Upgrade Program unless expressly stated in the Customer Purchase Agreement.

Customer agrees and understands that once it has paid for the Original System in full, as consideration for the discount provided by Company to Customer for its participation in the Upgrade Program, Customer will immediately return the Original System to Company as directed by Company.
If Customer fails to return the Original System as provided above, or in the event of a Revocation (as defined below), Customer agrees Company shall have the following remedies:
1. Customer shall be in breach of the Agreement and Company shall have all rights against Customer under the Agreement due to such breach (including the right to enter Customer’s place of business or facility and retake possession of the Original System and/or Upgraded System), as well as any remedies available to Company in equity or at law;
2. Customer shall be liable for all costs incurred by Company in retaking possession of the Original System and/or Upgraded System, including any shipping or handling costs incurred by Company in returning the Original System and/or Upgraded System to Company, and for any restocking fee charged by Company as determined by Company in its sole discretion; and
3. Notwithstanding anything set forth in the Customer Purchase Agreement or herein to the contrary, within five (5) business days of Customer’s breach or the Revocation, as applicable, Customer will pay to Company the full retail price of the Upgraded System (plus any applicable sales tax) as established by Company at the time of Customer’s breach or the Revocation, as applicable, rather than the discounted price provided as part of Company’s participation in the Upgrade Program.
Consumables for the Original System in Customer’s possession at the time of the upgrade will not be replaced by Company or returnable for any refund or other credit as part of the Upgrade Program.
Upon Company’s request, Customer shall provide Company proof of full payment of the Original System.
Customer hereby represents and warrants to Company that, upon the execution of the Agreement and thereafter, other than any financing obtained by Customer for the purchase of the Original System at the time of Customer’s original purchase of the Original System, the Original System does not have any lien or other encumbrance placed upon it, Customer has clear title to the Original System, and Customer will not take any action or omit to take any action that would result in a lien or encumbrance being placed upon the Original System or that would result in Customer no longer having clear title to the Original System. Upon return of the Original System to Company, Customer represents and warrants that all payments required to be made related to the Original System have been made, it has full and clear title to the Original System, and that there are no liens or other encumbrances upon the Original System.
Company may revoke Customer’s eligibility for the Upgrade Program, at its sole discretion, in any of the following situations (each a “Revocation”):
1. If the Original System returned by Customer is, in Company’s sole discretion, unacceptable, including if it is damaged, not in good working order, or has more than normal wear or tear;
2. If Customer sells or transfers the Original System to any party, fails to return the Original System as required under these Upgrade Terms, or, upon payment in full of the Original System, does anything with it other than return it to Company as required under these Upgrade Terms;
3. If Customer makes any misrepresentation to Company, including any misrepresentation related to the Original System, its condition, its ownership or the payment status thereof;
4. If Customer breaches any provision of the Agreement, including these Upgrade Terms;
5. If Customer fails to provide proof satisfactory to Company as required under Section 3; or
6. If Customer breaches any of the representations and warranties in Section 4.
Customer shall indemnify, hold harmless, and defend Company, its officers, directors, managers, members, agents, representatives, and insurers from and against any and all liabilities, claims, damages, causes of action, or expenses (including attorneys’ fees and other costs of defense) which arise out of or in connection with (a) Customer’s breach of these Upgrade Terms; (b) Customer’s noncompliance with applicable law; or (c) any third party’s claim that they have title to or rights in the Original System.