SCITON Standard Terms and Conditions
LAST REVISED 9/2/20
- LIMITS OF AGREEMENT
These purchase and shipment standard terms and conditions as set forth herein, as well as any additional terms and conditions that may appear on any Sciton quote, invoice, Sciton purchase order, and/or Sciton’s Return Material Authorization paperwork, and/or any amendments thereto, shall constitute the entire agreement between Sciton, Inc. (“Seller”) and Buyer, unless the parties agree in writing to otherwise these terms and conditions. Seller will not be bound by any terms of Buyer’s order that are inconsistent with the terms herein, unless the parties agree in writing to alter or amend these terms. Acceptance of Buyer of these terms may be made either (a) by written acceptance, (b) signature on the quote and/or invoice, or (c) by receipt by Buyer of delivery of any products described on the face of this Form (“Products”) and failure by Buyer to return the Products within five (5) days following such delivery. The terms and conditions shall not be modified except in writing, signed by the parties hereto. No waiver by Seller of any default of provision hereof shall be deemed a waiver of any subsequent default or provision. “The term “in writing,” “written,” and/or any other derivatives of the word “write” that are used in this Agreement mean any communication that is in writing either handwritten, typed, printed, and/or electronically delivered to the other party as provided herein and as permitted by applicable law.” This Agreement and the related pricing are limited to the Site as listed on the Quoter/Contract, applicable solely to this deal, and are neither transferable nor assignable to third parties without Sciton’s prior written consent.
- PRODUCTS PROVIDED AND PRICE
- Unless otherwise provided on the front of this form, products furnished hereunder shall be newly manufactured products but may contain components that have been previously used in other product units. Such previously used components have been disassembled, reprocessed and reassembled, as appropriate, and meet or exceed the Seller’s specifications for newly manufactured components.
- All transportation shall FOB Shipping Point (which is defined as at the place of manufacture or warehouse location, namely at the address set forth on the face hereof) and all related expense shall be borne by the Buyer unless otherwise agreed to in writing. Seller reserves the right to ship Products freight collect and to select the means of transportation and routing. Unless otherwise advised, Seller may insure to full value of the Products or declare full value thereof to the transportation company at the time of delivery and all such freight and insurance costs shall be for Buyer’s account and shall be included in the invoice/quote. Alternatively, if the parties elect to transfer risk of loss or damage to BUYER upon delivery of the Products to Buyer at the FOB Destination, then same will be reflected in the price of the product on the quote, and shall be agreed to in writing. The cost of packaging for normal domestic shipment is included in the invoice price. Where special domestic or export packaging is specified, involving greater expense, a charge will be made to cover such extra expense.
- Prices and orders do not include Federal, State of local excise, sales, use or local excise, sales, use or other taxes now or hereinafter enacted, which are applicable to the Products sold hereunder or this transaction (excluding only taxes based on Seller’s income), which tax or taxes will be added by Seller to and paid by Buyer when Seller has the legal obligation to collect the same and will be invoiced to and paid by Buyer, unless Buyer provides Seller with a proper tax exemption certificate. In the event Seller is required to pay any such tax, fee or charge at the time of sale or thereafter, the Buyer shall reimburse Seller therefore.
- Prices quoted are for the Products and services described on the face hereof only and do not include technical data, proprietary rights of any kind, patent rights, qualification, environmental or other than Seller’s standard tests unless expressly agreed to in writing by Seller.
- Unless otherwise stated by seller in writing, all quotations are firm for, and expire, thirty (30) days after date thereof and constitute offers.
- Unless otherwise stated by seller in writing, all prices are firm for, and expire, 60 days after date of receipt of signed offer from buyer and deposit from buyer; buyer must be willing to accept delivery within 60 days after date of receipt of signed off and all deposits are non-refundable upon payment to Sciton.
- Clinical training by a certified Sciton clinical trainer is provided for each system upgrade containing a light module with a selling price exceeding $50,000 USD (not including tax and handling). Any purchase below $50,000 USD will require an additional fee for a clinical inservice. Training is scheduled after completion of the sale of a new system or module with Sciton’s Clinical Education Department. Clinical training may take approximately a full day depending on the system configuration and the customer’s experience. Additional training will be scheduled by Sciton at the customer’s request for a standard fee.
- Sciton reserves the right to collect system usage data from time to time for the purpose of running diagnostics and improving usability and performance of the system. Data collected will not contain any patient identification information.
- PAYMENT TERMS
- Unless otherwise stated on the front of this form, payment is due prior to delivery and acceptance. Seller reserves the right to require alternative payment terms, including, without limitation, sight draft, letter of credit, etc. All payments shall be made to Seller at its principal office in Palo Alto, California, or such other office as designated on the face hereof. Interest accrues on overdue invoices at the rate of 1.5% per month, but not more than the amount allowed by law, on the unpaid balance from the original due date of the invoice. A late fee of $100 will accrue for each month past the due date until the entire balance is paid. Payment shall not be withheld for delay in installation if at Buyer’s request nor for delay in delivery or required documentation unless a separate price is stated therefore, and only to the extent of the prices stated. Buyer is authorized to use his/her/its credit card in order to complete Payment under this Agreement. Buyer acknowledges that Seller will impose a surcharge of 3.0% on Buyer for credit card charges above $10,000 (USD)— to the extent consistent with applicable California law. A surcharge is an additional amount imposed at the time of the transaction by Seller that increases the charge to Buyer for using a credit card. The surcharge is intended to reimburse Seller for the processing fees incurred by Buyer’s credit card company.
- All orders are subject to, and the obligation of Seller to make deliveries is subject to, the right of the Seller as provided in paragraph 11, to require of the Buyer payment of all or any part of the purchase price in advance of delivery or to make shipment C.O.D. If the Buyer fails to make advance payment when requested by Seller, or if the Buyer becomes delinquent in the payment of any sum due Seller (whether or not arising out of this order) or refuses to accept C.O.D. shipment, then Seller shall have the right, in addition to any other remedy to which it may be entitled in law or equity, to cancel the sales order, refuse to make further deliveries, and declare immediately due and payable all unpaid amounts for goods previously delivered to the Buyer. Partial shipments made under any order shall be treated as a separate transaction and payment thereof shall be made accordingly. However, in the event of any default by Buyer, Seller may decline to make further shipments without in any way affecting its rights under such order.
- Seller reserves a purchase money security interest in the Products sold hereunder and the proceeds thereof, in the amount of the purchase price. In the event of default by Buyer on any of its obligations to Seller. Seller will have the right to repossess the goods sold hereunder without liability to Buyer. In such event, Buyer agrees to make the Products available to Seller so that Seller can repossess them without a breach of the peace. This security interest will be satisfied by payment in full. A copy of the invoice may be filed with appropriate authorities at any time as a financing statement and/or chattel mortgage to perfect Seller’s security interest. Buyer shall cooperate fully with Seller to execute such other documents and to accomplish such filings and/or recordings thereof as Seller may deem necessary for the protection of Seller’s interests in the Products furnished hereunder.
- Buyer, at its expense, shall fully insure Products against all loss or damage until Seller has been paid in full therefore, or the Products have been returned, for whatever reason to Seller. This requirement may be met through self-insurance.
- TRANSPORTATION AND RISK LOSS
Unless otherwise agreed to in writing by Seller, all transportation shall be at the expense of Buyer, Seller reserving the right to ship Products freight collect and to select the means of transportation and routing. Unless otherwise agreed to in writing, Seller may insure to full value of the Products or declare full value thereof to the transportation company at the time of delivery and all such freight and insurance costs shall be for Buyer’s account. Risk of loss or damage shall pass to Buyers upon delivery of the Products to the transportation company at the FOB shipping point, whether or not installation is provided by or under supervision of Seller—unless otherwise agreed to in writing pursuant to Section 2b above.
Seller may at its option obtain insurance for its Products covering their delivery to Buyer and Buyer agrees to reimburse Seller for the cost of providing such insurance. Alternatively, if Buyer has not been notified of the existence of insurance coverage and provides his/her/its own insurance for such shipment, then Seller will waive its insurance charge.
Confiscation or destruction of, or damage to Products shall not release, reduce or in any way affect the liability of Buyer therefore. Notwithstanding any defect or nonconformity, or any other matter, such risk of loss shall remain in Buyer until the Products are returned at Buyer’s expense to such place as Seller may designate in writing. Buyer, at its expense, shall fully insure Products against all loss or damage until Seller has been paid in full therefore, or the Products have been returned, for whatever reason to Seller.
Seller will attempt to meet shipment schedules. However, any shipment quotation or forecast on an order acknowledgement is only an estimate of the time required to make shipment and Seller will not assume liability, consequential or otherwise, because of any delay or failure to deliver all or any part of any order for any reason, including its active or passive negligence. Seller reserves the right to allocate inventories and current production in any way it deems desirable.
- INSPECTION AND ACCEPTANCE
The Buyer shall have the right to inspect the goods upon tender of delivery. Failure of the Buyer to inspect the goods and give written notice to the Seller of any alleged defect or non-conformity within thirty (30) days after tender of delivery shall constitute an irrevocable acceptance by Buyer of the goods delivered to him; provided that goods for which Seller agrees in writing to provide installation by its personnel, shall be deemed accepted by Buyer of the goods delivered to him upon completion by Seller of its applicable acceptance tests or execution of Seller’s acceptance form by Buyer. Notwithstanding the foregoing, use of any such goods by Buyer, its agents, employees or licensees, for any purpose after delivery thereof, shall constitute acceptance of goods by Buyer.
Prior to return of any Products to Sciton for any reason, Sciton Service will provide a prepaid return FedEx label to Buyer. The Product to be returned must be placed in the FedEx package with the prepaid return label as said packaging contains the Return Material Authorization (“RMA”) notation for Sciton Service purposes.
Buyer shall promptly ship all returns to Sciton in the provided packaging. Return shipment must be in the provided package as said packaging displays the appropriate RMA Number reference. Failure to make the return shipment will result in Sciton generating an invoice for payment to the Buyer.
In all cases of returns, final approval by Sciton as to credit, or replacement in the case of Products returned under a Sciton Warranty, may be withheld pending inspection and/or testing of the returned Product by Sciton and verification of the pertinent facts. If Sciton determines after inspection that a warranty claim is invalid, Sciton may charge Buyer for the costs incurred by Sciton related to such inspection and shipping/insurance.
All returned parts must be marked new or used when returned to Sciton. Buyer must return alleged defective parts within thirty (30) days of receiving replacement parts or additional charges will apply. Additionally all returned parts must reference the proper RMA number as assigned by Sciton. If the return part is serialized, and Buyer returns the part, then Sciton expects that the serial number on the returned part will match the serial number identified by Buyer at the time the part is requested for replacement. No other serialized part can be substituted at the time of the return of the alleged defective part.
If Sciton determines that a unit has parts or components that do not match its list of original manufacturer equipment in terms of serialized parts, then Sciton reserves the right to reject the return and Buyer must pay to have the unit inspected and brought back to Sciton’s specifications and also pay retail price for the replacement part, as Sciton does not service units that have been serviced by non-Sciton certified service technicians due, in part, to the risk that such repairs pose to unit buyers and patients undergoing treatment with said units.
Any order for a standard Product with a published price accepted by Seller and terminated by Buyer prior to shipment, shall be subject to a termination charge of not less than ten percent (10%) of the order value to cover costs or processing and order handlings; termination thereof within thirty (30) days before shipment shall be subject to a written acceptance by Seller and termination charge of not less than twenty percent (20%) of the order value; thereafter no such order may be terminated except by mutual agreement in writing. No order for non-standard products or products without a published price may be terminated by Buyer except by mutual agreement in writing. Terminations by mutual agreement are subject to the following conditions:
- Buyer will pay, at applicable contract prices, for all Products that are completely manufactured and allocable to Buyer at the time of Seller’s receipt of notice of termination;
- Buyer will pay all costs, direct and indirect, which may have been incurred by Seller with regard to Products which have not been completely manufactured at the time of Seller’s receipt of notice of termination, plus a pro rata portion of the normal profit on the contract;
- Buyer will pay a termination charge on all other Products affected by the termination. Seller’s normal accounting practices shall be used to determine costs and other charges. To reduce termination charges, Seller will divert completed parts, material or work-in-progress from terminated contracts to other customers whenever, in the Seller’s sole discretion, it is practicable to do so. In the event of a termination, Buyer will have no rights in partially completed goods.
- LIMITED WARRANTY – LIMITATION OF REMEDIES
- Except as otherwise specified herein, Seller warrants the Products commencing after full payment has been received by the Seller:
- i) To be free from defects in material and workmanship for a period of time specified on the front of this form and under such conditions as specified in Seller’s warranty for the individual Product, or until twelve (12) months from shipment unless the deal paperwork (including but not limited to the invoice and/or quote) specifies a different warranty term in this regard, and
- ii) To perform in the manner and under the conditions as specified in Seller’s warranty for the individual Product or until twelve (12) months from shipment unless the deal paperwork (including but not limited to the invoice and/or quote) specifies a different warranty term in this regard.
- No representative or person is authorized to bind Seller for any obligations or liabilities beyond this warranty in connection with the sale of Seller’s goods. This warranty is made to the original purchaser only at the original location and is non-transferable, and may only be modified or amended by a written instrument signed by a duly authorized officer of Seller.
- i) Goods or parts that are replaced or repaired under this warranty are warranted only for the remaining unexpired portion of the original warranty period applicable to the specified product.
- ii) Goods or parts that are replaced or repaired under this warranty because of normal wear or use, such as contact plates, wear surfaces, and flashlamps are warranted on a monthly pro-rated basis only for the remaining portion of the warranty as credit toward new replacement goods or parts.
iii) Optical coatings, filters, lenses, and mirrors will be repaired or replaced under this warranty if kept clean according to manufacturer’s instructions. Dirt or debris on the surface of such an item during usage may cause thermal damage and void the warranty for such item.
- iv) Third party items are warranted by their manufacturers and are not covered by the Sciton system warranty.
- These remedies are available only if Buyer notifies Seller in writing promptly upon discovery of the defect, and in any event within the warranty period for the Individual Product. The warranty shall be null and void (i) where the goods are unpacked, worked on, altered, serviced, modified, and/or repaired by person(s) not authorized by Seller so as, in Seller’s sole judgment, to injure the stability, reliability, or proper operation of such goods; (ii) where service is required due to the Buyer’s failure to operate or maintain the goods in a manner consistent with the specifications and guidelines set forth in the Product’s operator manual; (iii) if the goods are subject to misuse, negligence or accident; and/or (iv) where the goods are connected, installed, dismantled, disassembled, used or adjusted otherwise than in accordance with the instructions furnished by Seller.
- All Products not requiring fixed installation which Buyer considers defective shall be returned to Seller’s office as designated on the face hereof transportation costs prepaid and borne by Buyer (unless otherwise provided on the face hereof). The risk of loss of the goods shipped or delivered to Seller’s plant for repair or replacement will be borne by Buyer.
- This warranty only applies to devices and components sold by Seller to the Buyer and is expressly voided to the extent any component and device is purchased by a Buyer from a third party used laser broker. Any component part purchased from Seller that malfunctions due to a part or device purchased by the Buyer from a third party used laser broker will void the warranty in that component part.
- If it is found that any Product has been returned without cause and is still serviceable, Buyer will be notified and the Product returned at Buyer’s expense. In addition, a charge for testing and examination may, in Seller’s sole discretion, be made on Products so returned.
- NOTWITHSTANDING THE FOREGOING, IN NO EVENT WILL SELLER BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF USE OR LOSS OF PROFITS) OR FOR ANY DAMAGES SUFFERED BY ANY THIRD PARTY.
- THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES (EXCEPT FOR SPECIFIC WRITTEN PRODUCT PERFORMANCE GUARANTEES) WHETHER WRITTEN, ORAL OR IMPLIED, INCLUDING ANY WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND SHALL BE THE BUYER’S SOLE REMEDY AND SELLER’S SOLE LIABILITY ON CONTRACT OR WARRANTY OR OTHERWISE FOR THE PRODUCT.
- SELLER’S RIGHTS TO SUBCONTRACT
Seller may subcontract any portion of the work on any item subject to this Agreement, but Seller’s obligations and rights hereunder shall not thereby be limited or affected.
- BANKRUPTCY OR INSOLVENCY OF BUYER
If the financial condition of the Buyer at any time is such as to give Seller in its judgment, reasonable grounds for insecurity concerning Buyer’s ability to perform its obligations under this Agreement, Seller may (a) by notice in writing to Buyer, cancel this Agreement, without judicial intervention or declaration of default of Buyer and without prejudice to any right or remedy which may have accrued or may accrue thereafter to Seller, (b) require full or partial payment in advance and suspend any further deliveries (or continuance of the work, to be performed by Seller) until such payment has been received or (c) make shipments C.O.D.
- PATENT PROTECTION
- Except as set forth in 12 (b) below, Seller will defend Buyer at its own expense, as set forth herein, against any claim that the design or manufacture of any standard Product furnished hereunder, constitutes an infringement of any United States patents or other industrial property rights. Buyer shall notify Seller promptly in writing of any such claim of infringement and shall give Seller full authority, information and assistance in settling or defending such claim. Seller shall have no liability whatsoever with respect to any claims settled by Buyer without Seller’s prior consent. Seller shall not have any liability to the Buyer under any provision of this clause if any patent infringement, or claim thereof is based upon the use of the goods as modified by any person other than the Seller or in combination with equipment or devices not made by Seller or in a manner for which the goods were not designed.
- Unless otherwise specified on the front of this form, the purchase price for the Products includes licensing fees payable to Sciton, Inc. If such fees are included within the purchase price of the Products, Seller makes the following representations:
Seller will hold Buyer harmless for any claim that the design or manufacture of the Products furnished hereunder constitutes infringement of U.S. patents Nos. 4,053, 045; 4,704,583; and 4,746, 201. In addition, Seller will hold Buyer harmless for any claim that the use of the product furnished hereunder constitutes infringement of U.S. Patent No. 4,161,436 except if the Product is used to manufacture or master laser discs, compact discs, laser memories, or similar products on which the Product is used to record sound, visual matter, or data. Seller shall not have any liability to the Buyer for any claim that the use of the Product constitutes patent infringement with respect to the U.S. Patent 4,161,436, to the extent that claim is based upon parts, equipment or devices added to the Product not supplied by the Seller. These rights granted hereunder are limited solely to the patents enumerated herein.
- In case the Products furnished by Seller with respect to any such claim are held in and of themselves to constitute infringement and their use is enjoined, Seller within a reasonable time, shall, at its option, either (a) secure for Buyer the right to continue using the Products by suspension of the injunction, by procuring for the Buyer a license or by some other means, or (b) at Seller’s own expense, replace the Products with non-infringing goods, or (c) remove the enjoined Products and refund the sums paid therefore. The foregoing states the entire liability of Seller with respect to infringement of intellectual property rights by the goods or any part thereof or by their operation. These provisions, however, shall not apply to any equipment, device or parts specified by Buyer but not manufactured by Seller. THE FOREGOING STATES SELLER’S ENTIRE LIABILITY AND OBLIGATION (EXPRESS, STATUTORY, IMPLIED OR OTHERWISE) WITH RESPECT TO INTELLECTUAL PROPERTY INFRINGEMENT OR CLAIMS THEREFORE.
- PROPRIETARY RIGHTS
The 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 or patent applications or design copyrights the Seller may have covering the Products. Seller retains for itself all proprietary rights in and to all designs, engineering details, and other data and materials pertaining to any Products supplied by Seller and to all discoveries, inventions, patents and other proprietary rights arising out of the work done by Seller in connection with the Products or with any and all Products developed by Seller as a result thereof, including the sole right to manufacture any and all such Products. Buyer warrants that it will not divulge, disclose, or in any way distribute or make use of such information, and that it will not manufacture or engage to have manufactured such Products.
- EQUAL OPPORTUNITY
Sciton, Inc., certifies that it has developed and has on file affirmative action programs as required by the rules and regulations of Executive Order 11246, as amended, and 41 C.F.R. Chapter 60-2.2, issued by the Department of Labor. In addition, Sciton, Inc., is in full compliance with section 503 of the Rehabilitation Act of 1973 and section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974.
Stenographic and clerical errors are subject to correction.
- APPLICABLE LAW; JURISDICTION AND VENUE
The laws of the State of California will govern this Agreement. Any Arbitration will be governed by California’s Uniform Arbitration Act, and will take place in Santa Clara County, California. Any Arbitration will be subject to a separate agreement prepared by the parties but will include that any selected Arbitrator shall use as a guide in the Arbitration, the Federal Rules of Evidence and the California Rules of Civil Procedure, that the parties waive a trial by jury in lieu of binding Arbitration, and that the parties agree that the Courts of Law in Santa Clara County, California shall retain jurisdiction over the parties to enforce the arbiter’s decision until performance in full, and confidentiality. The parties agree that the State and Federal Courts in Santa Clara County, California have exclusive jurisdiction over the parties in any action seeking legal and/or equitable relief.
- LIMITATION OF LIABILITY
- Seller will not be liable for any loss, damages or penalty resulting from delay in delivery of the Products when such delay is due to causes beyond the reasonable control of Seller, including without limitation, supplier delay, force majeure (an event of force majeure is an event or circumstance which is beyond the control and without the fault or negligence of the Seller and which by the exercise of reasonable diligence the Seller was unable to prevent provided that event or circumstance includes the following, but is not limited to: a widespread epidemic, pandemic, a public health emergency, acts of God, labor unrest, fire, flood, explosion, earthquake, riot, war, invasion, acts of terrorism, civil or military disturbances, business interruptions experienced by Buyer or Seller related to any force majeure event, or any changed circumstances experienced by Seller that renders its performance commercially unreasonable or impossible) (“Force Majeure Event”). In any such event, the delivery date will be deemed extended for a period equal to the delay.
- Except as set forth in section 24, SELLER’S LIABILITY UNDER, FOR BREACH OF, OR ARISING OUT OF THIS AGREEMENT AND/OR SALE WILL BE LIMITED TO REPAIR OR REPLACEMENT OF ANY DEFECTIVE PRODUCTS OR A REFUND OF THE PURCHASE PRICE OF THE PRODUCTS, AT SELLER’S SOLE OPTION, INCLUDING ANY AWARD OF LEGAL FEES. AS SET FORTH IN PARAGRAPH 9 ABOVE, IN NO EVENT WILL SELLER BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTED PRODUCTS BY BUYER, NOR WILL SELLER BE LIABLE FOR ANY SPECIAL, BUSINESS INTERRUPTION, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT) WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR OTHERWISE. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD-PARTY CLAIMS AGAINST BUYER. THE PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF SELLER ARISING OUT OF THIS AGREEMENT AND/OR SALE.
- Suitability for a particular use shall be determined solely by the Buyer and the Buyer’s agents, and Seller is not liable for the consequence of such decisions. The Seller cannot, and does not, undertake to supplant or discharge the Buyer’s duties and responsibilities with regard to the qualities, appropriateness, or use of the Product, or of any substance or other product which may form a part of the Buyer’s use of the Product. The parties agree to defend, indemnify, and hold harmless each other, their parent companies, affiliates and their respective, officers, directors, employees, and agents, from and against all actions, causes of action, claims and demands whatsoever, and from all costs, damages, expenses, charges, debts and liabilities related to a breach by the other party of any representation, warranty, covenant, or terms and conditions under this Agreement, and/or the negligence or intentional misconduct by the other party. If the party seeking indemnification (“moving party”) also acted (or is claimed to have acted) negligently or engaged in intentional misconduct, there is no duty to indemnify between the parties. This clause applies to claims between the parties and claims brought by third parties against the Buyer and/or Seller hereto. The liability limitation set forth in section 17(b) shall also apply to Seller’s indemnity obligation herein. The Parties’ obligation to indemnify including, but not limited to, any related dispute resolution clauses, shall survive the expiration or termination of this Agreement and shall not be subject to the limitations above.
Any rights and obligations under this Agreement, which by their nature should survive, shall survive the expiration or termination of this Agreement.
- RECERTIFICATION AND TRANSFER OF OWNERSHIP
Sciton’s recertification and transfer of ownership policies may be found in Seller’s Service Contract Terms and Conditions. A full copy of Sciton’s policies are available to Buyer upon request.
- SUCCESS BUILDER POINTS
Some sales are subject to Success Builder Points. The terms and conditions can be found on the ScitonPro website and/or will be furnished to applicable Buyers upon request. Such points are not guaranteed and the program may be discontinued by Sciton at any time without notice to the Buyer. Sciton utilizes third party vendors like Google Analytics and Marketo to handle Buyer’s data, who have confirmed are GDPR-compliant. Buyer consents to Sciton sharing Buyer’s name and contact information to Sciton’s third party vendors in connection with Sciton’s Success Builder Program.
- CONCIERGE SERVICE AND SUBSCRIPTION AGREEMENT.
In connection with this purchase, Buyer is authorized to sign up for the professional services offered under Sciton’s Concierge Service and Subscription Agreement. Additional terms and conditions for The Concierge Service and Subscription Program (“Concierge Program”) may apply and those are incorporated herein to the extent Buyer elects to enroll in the Concierge Program.
- SCITON PROFESSIONAL WEBSITE
- SUBSTITUTIONS AND MODIFICATIONS
Seller will have the right to make substitutions and modifications in the specifications of Products sold by Seller, provided that such substitutions or modifications will not materially affect overall Product performance.
- ATTORNEY’S FEES AND COSTS
Reasonable attorneys’ fees and costs will be awarded to the prevailing party in the event of litigation involving the enforcement or interpretation of this Agreement. “Prevailing Party” means the net winner of an enforcement proceeding, taking into account the claims pursued, the claims on which the moving party was successful, the amount of money sought, the amount of money awarded, any non-monetary relief, equitable or otherwise, awarded, and offsets or counterclaims pursued (successfully or unsuccessfully) by the party against whom enforcement is sought.”
- COMPLIANCE WITH STATE LAW REGARDING LASER DEVICES
Owners of laser and laser-based devices in Illinois (IL), Arizona (AZ), Texas (TX), Georgia (GA), Florida (FL), Massachusetts (MA), and New York (NY) may be required to register certain laser or laser-based devices with the applicable state agency. Responsibility for compliance with any state-specific requirements pertaining to laser ownership, including but not limited to, laser registration, rests exclusively with the device owner, and not with Sciton.
- INDEMNIFICATION UPON ACTION BY FDA
Except as set forth in 17 (b) and (c), in lieu of litigation, and in the event that any state or federal agency forces the Seller to recall the device for any reason and/or the FDA finds that the device is being promoted off label by the Seller simultaneously and Buyer’s state law subjects Buyer to liability for using and/or promoting devices for the alleged off label purposes identified by the FDA, the parties hereby agree to the following remedy and recognize that this term is intended to protect Buyer’s investment and to also limit Sciton’s liability to Buyer in the event of any regulatory and/or other legal or administrative decision outside of Sciton’s control: Sciton hereby agrees to indemnify Buyer for the purchase price of the device/accessory purchased under this Agreement, either by: 1) return of the purchase price as reflected in the Buyer signed quote and invoice less revenue earned by the Buyer from use of the device calculated up to the date when the parties agree to exchange consideration and trigger the indemnity; or 2) by way of an in-kind comparably priced product exchange— at Seller’s exclusive option at the time that indemnity is triggered. Indemnity is triggered when a state and/or federal agency forces the Seller to recall the device and/or when the FDA finds that the device is being marketed off label by the Seller and the Buyer’s state law subjects Buyer to liability for the use and/or promotion of the device for such off label purpose, with such time when the indemnity is triggered to be determined solely at the Seller’s option. Buyer must submit a Notice of Dispute to Sciton notifying Sciton of its intent to seek indemnification from Sciton.
This is Buyer’s exclusive remedy and precludes Buyer from participating in any other related litigation. Buyer agrees that it will not bring or participate in any class, collective, or representative action, as a plaintiff or a class member, against Sciton which asserts, in whole or in part, any claim(s), even if Buyer does not know about the claim(s) at this time, whether or not such claims are specifically covered by this Agreement. Buyer further agrees that if it is included within any class, collective, or representative action, Buyer will take all necessary steps to opt-out of the action or refrain from opting in.
If the dispute is not resolved through the indemnification provisions above, in sixty (60) days from the date Sciton receives Customer’s Notice of Dispute, or by a separate date mutually agreeable to both parties, either party may invoke arbitration by providing written notice to the other, and by submitting such dispute to binding Arbitration before a mutually agreed-upon Arbiter. The claims brought by Buyer will be brought in Buyer’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Any Arbitration will be governed by California’s Uniform Arbitration Act, and will take place in Santa Clara County, California. Any Arbitration will be subject to a separate agreement prepared by the parties but will include that any selected Arbitrator shall use as a guide in the Arbitration, the Federal Rules of Evidence and the California Rules of Civil Procedure, that the parties waive a trial by jury in lieu of binding Arbitration, and that the parties agree that the State and Federal Courts in Santa Clara County, California shall retain jurisdiction over the parties to enforce the arbiter’s decision until performance in full, and confidentiality. The parties agree that the State and Federal Courts in Santa Clara County, California have exclusive jurisdiction over the parties in any action seeking legal or equitable relief.
This term consists of a compromise by the Parties and a release given by each Party relinquishing all potential claims set forth in this section against the other Party that could have been asserted in litigation, in exchange for a remedy set forth herein.
- COUNTERPARTS AND ELECTRONIC SIGNATURES
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail or other transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and effective for all purposes. In accordance with the U.S. federal ESIGN Act of 2000, California’s Uniform Electronic Transactions Act (Cal. Civ. Code Section 1633.1, et seq.), and any other applicable law or regulation of any kind concerning the use of electronic signatures, the parties expressly agree to the use of electronic signatures to execute this Agreement. An electronic signature includes any symbol or series of symbols, including an individual’s initials, that has been executed, adopted, or authorized by an individual to be the legally binding equivalent of the individual’s handwritten signature. Each person executing this Agreement represents and warrants that he or she is the person stated and has full and legal authority to execute this Agreement for and on behalf of the respective party for which he or she is executing this Agreement and to bind that party in accordance with this Agreement. Each party further represents and warrants that it has not altered or modified this Agreement in any way from the agreement to which the parties agreed.
- DATA PRIVACY
- Sciton is committed to protecting the privacy of your personally identifiable information to the extent possible. Sciton maintains reasonable security measures to protect sensitive personally identifying information and only uses/collects personal information in a lawful and fair manner. You represent that you are in compliance with any relevant data protection laws.
- Personal Information. Sciton collects personal information from agreements, e-mails, faxes, telephone inquiries, correspondence, web forms, surveys, and other means of communication. Sciton collects such information when you agree to purchase or order or avail yourself of goods or services, registration for a service (e.g. user groups, seminars, and tradeshows), to track warranty rights and obligations, to provide product information, and other lawful purposes. “Personal Information” means information that can be used to identify a specific individual, such as your name, address, e-mail address, phone number, birth date, credit card information, etc.
- Withdrawing Consent/Data Deletion Request. You may opt to withdraw consent at any time. If you wish to review, modify, delete, or otherwise express your concerns about any personally identifying information that you previously provided, you can do so at any time by contacting:
925 Commercial Street
Palo Alto, CA 94303
Toll Free: +1.888.646.6999
- Third-Party Service Providers. To build a great product for you and provide exceptional customer service, we need partners. We utilize third party vendors like Google Analytics and Marketo to handle your data, who have confirmed are GDPR-compliant. Except for the disclosure of Buyer’s name and contact information to Sciton’s third party vendors in conjunction with Sciton services like Sciton Pro, Sciton’s Success Builder Program, and The Concierge Service and Subscription Program, Sciton does not disclose or sell personal information to third parties; however, should this policy change, Sciton will notify you of same prior to disclosing any information to third parties. If Sciton must disclose personal information to a third-party, Sciton will require by contract that the third party implement and maintain reasonable security procedures and practices appropriate to the nature of the information, to protect the personal information from unauthorized access, destruction, use, modification, or disclosure.
- Disposal of Data. Sciton will take all reasonable steps to erase or arrange for the destruction of all sensitive personally identifying information contained in records when the records are no longer to be retained pursuant to applicable law, regulations, or business needs.
- Breach of Security. In the event there has been a breach of security in relation to your personally identifying information, and the state in which you reside requires notice upon discovery of the breach, Sciton, without delay and as soon as reasonably practicable, and in accordance with any applicable law, will notify you, in writing, and conduct an investigation of same, and report to the appropriate authorities/agencies, if applicable.
- E-mail Scams. There are various scams designed to steal your personal information. If you receive an e-mail that looks like it is from Sciton asking you for your personal information, please notify us as provided in this section.
To the extent this sale involves a leasing company, lessee/ buyer agrees that California law and California Courts will govern any claim or other cause of action between Sciton and the end user of the device, namely lessee/buyer. Any choice of law or venue clauses in terms and conditions between lessor and lessee do not apply to claims between lessee/buyer and Sciton.