TERMS OF SALE
PLEASE READ CAREFULLY: THE FOLLOWING TERMS WILL GOVERN PURCHASES MADE VIA THE EYENETRA STORE (STORE.EYENETRA.COM).
BY USING, PURCHASING AN EYENETRA PRODUCT OR SERVICEE, OR BY CHOOSING THE "I ACCEPT" OPTION LOCATED ON OR ADJACENT TO THE SCREEN WHERE THESE TERMS MAY BE DISPLAYED, YOU AGREE TO THE TERMS BELOW. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT PURCHASE EYENETRA PRODUCTS OR SERVICES.
1. Parties. These terms represent the agreement (“Agreement”) that governs the purchase of products and services from EyeNetra, Inc. (“EyeNetra”) by the individual or entity purchasing products or services from EyeNetra (“Customer”).
2. Application. These terms apply to products, including without limitation, the NETRA Autorefractor, Netrometer, and Netropter (“EyeNetra Products”), software included in EyeNetra Products (“EyeNetra Software”), and services (“EyeNetra Services”) made available for sale from EyeNetra via the EyeNetra Store.
3. Orders. “Order” means an order placed by a Customer that has been accepted by EyeNetra, including any supporting material which the parties identify as incorporated either by attachment or reference (“Supporting Material”). Supporting Material may include (as examples) product lists, hardware or software specifications, standard or negotiated service descriptions, data sheets and their supplements, and statements of work (SOWs), published warranties and service level agreements, and may be available to Customer in hard copy or by accessing the EyeNetra Store.
4. Prices and Taxes. Prices will be as quoted as set out on the EyeNetra Store website at the time an Order is submitted to EyeNetra and accepted. Prices are exclusive of taxes, duties, and fees (including installation, shipping, and handling) unless otherwise quoted
5. Payment. Payment is due as specified in the EyeNetra web-site in U.S. Dollars. EyeNetra may suspend or cancel performance of open Orders or EyeNetra Services if Customer fails to make payments when due.
6. Title. Except as provided herein, title and risk of loss to EyeNetra Products will pass on shipment to Customer. EyeNetra Software: (1) is owned or licensed by EyeNetra; (2) is proprietary to EyeNetra and its licensors; and (3) constitutes trade secrets of EyeNetra and its licensors.
7. Delivery. EyeNetra will use commercially reasonable effort to deliver products in a timely manner. EyeNetra anticipates first delivery of EyeNetra products will take place in February of 2016.
8. Services. EyeNetra Services, including without limitation, support services will be described in the applicable Supporting Materials and Statements of Work, which will cover the description of EyeNetra’s offering, eligibility requirements, service limitations and Customer responsibilities, as well as the EyeNetra Products supported.
9. Eligibility. EyeNetra’s service, support and warranty commitments do not cover claims resulting from: (a) improper use, environmental conditions or non-compliance with applicable Supporting Material; (b) modifications or improper system maintenance or calibration not performed by EyeNetra or authorized by EyeNetra; (c) malware (e.g. virus, worm, etc.) not introduced by EyeNetra; or (d) abuse, negligence, accident, fire or water damage, electrical disturbances, transportation by Customer, or other causes beyond EyeNetra’s control.
10. Client Cooperation. EyeNetra’s ability to deliver EyeNetra Products and services will depend on Customer’s reasonable and timely cooperation and the accuracy and completeness of any information from Customer.
11. Product Performance. All EyeNetra Products are covered by EyeNetra’s limited warranty statements that are provided with the products or otherwise made available on the EyeNetra Store web-site. All EyeNetra warranties begin on the date of delivery.
12. Services Performance. Services are performed using generally recognized commercial practices and standards. Customer agrees to provide prompt notice of any such service concerns and EyeNetra will re-perform any service that fails to meet this standard.
13. Intellectual Property Rights. Except as provided herein, no transfer of intellectual property will take place upon the sale of any EyeNetra Products,
14. License Grant. EyeNetra grants Customer a non-exclusive license to use the version or release of the EyeNetra Software included in EyeNetra Products included in an Order. Permitted use is for internal purposes only (and not for further commercialization). Customer agrees that it will also not copy, modify, reverse engineer, disassemble decrypt, decompile or make derivative works of any EyeNetra Software licensed to Customer under this Agreement unless permitted by statute, in which case Customer will provide EyeNetra with reasonably detailed information about those activities. Unless otherwise specified, any license granted is perpetual, provided however that if Customer fails to comply with the terms of this Agreement, EyeNetra may terminate the license upon written notice. Immediately upon termination, Customer will either destroy all copies of the software or return them to EyeNetra.
15. Intellectual Property Rights Infringement. EyeNetra will defend and/or settle any claims against Customer that allege that an EyeNetra Product or service as supplied under this Agreement infringes the intellectual property rights of a third party. EyeNetra’s obligations under this paragraph are conditioned upon Customer’s prompt notification of the claim and cooperation with our defense. EyeNetra may modify the product or service so as to be non-infringing and materially equivalent, or may procure a license. If these options are not available, EyeNetra will refund to Customer the amount paid for the affected product in the first year or the depreciated value thereafter or, for support services, the balance of any pre-paid amount. EyeNetra is not responsible for claims resulting from any unauthorized use of EyeNetra Products or services. This paragraph constitutes Customer’s sole remedy for a claim of intellectual property rights infringement.
16. Updates. EyeNetra may make new software versions, releases or maintenance updates (“Updates”). Additional licenses or fees may apply for these Updates. Updates are subject to the license terms in effect at the time that EyeNetra makes them available to Customer.
17. Legal Compliance. Customer will be responsible for complying with applicable laws and regulations and for obtaining any required export or import authorizations. EyeNetra may cancel or suspend its performance under this Agreement to the extent required by laws applicable to either party.
18. Force Majeure. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations.
19. Termination. Either party may terminate this Agreement on written notice if the other fails to meet any material obligation and fails to remedy the breach within a reasonable period after being notified in writing of the details. If either party becomes insolvent, unable to pay debts when due, files for or is subject to bankruptcy or receivership or asset assignment, the other party may terminate this Agreement and cancel any unfulfilled obligations. Any terms in the Agreement which by their nature extend beyond termination or expiration of the Agreement will remain in effect until fulfilled and will apply to both parties' respective successors and permitted assigns.
20. General. This Agreement, along with EyeNetra’s Terms of Service and other documents referenced herein, represent our entire understanding with respect to its subject matter and supersedes any previous communication or agreements that may exist. Modifications to the Agreement will be made only through a written amendment signed by both parties. The Agreement will be governed by the laws Commonwealth of Massachusetts, without regard to conflicts of laws provisions, and the courts of that locale will have jurisdiction. Customer and EyeNetra agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. This Agreement shall be binding on each party’s successors and assigns.