These BrainScope Standard Terms and Conditions (collectively, the “Standard Terms”) govern the contractual relationship between BrainScope Company, Inc. (“BrainScope”) and the person or entity identified as the customer in any purchase order or other form of contract with BrainScope which states that it is subject to these Standard Terms (the “Customer” or “you”). In the event of any conflict between these Standard Terms and the provisions of any other document, these Standard Terms shall govern unless the conflicting document is mutually signed by BrainScope and Customer and such document expressly identifies the provision(s) of these Standard Terms to be superseded and expressly states the parties’ intent to supersede such provision.
1. Acceptance of these Terms.
These Standard Terms may be accepted by Customer in any manner indicating Customer’s agreement to be bound by them. For example, Customer may submit a purchase order to BrainScope which incorporates these Standard Terms by reference (or incorporates by reference a BrainScope quote that is subject to these Standard Terms), or Customer may enter into an agreement with BrainScope entirely or partially using an online process through which Customer indicates its assent to the Standard Terms.
2. Ordering and Delivery.
Subject to these Standard Terms, BrainScope will deliver to Customer the BrainScope devices (“Equipment”) and other products (collectively, together with Equipment, the “Products”) purchased by Customer, as indicated in a purchase order or other ordering document (an “Order”) submitted by Customer and accepted by BrainScope. Together these Standard Terms and the Order constitute the “Agreement.” No pre-printed or boilerplate terms of any such Order will have any force or effect, and no Order will be binding upon BrainScope unless and until BrainScope accepts that Order. BrainScope may accept an Order only by providing express notice of acceptance, by countersigning and returning a copy of the Order to Customer, or by commencing shipment of the Products requested therein, and reserves the right to reject any Order. Customer may not cancel an Order after it has been accepted unless BrainScope provides its consent. All Products shall be shipped Ex Works (INCOTERMS 2020) from BrainScope’s facilities according to BrainScope’s then-current shipping policies. BrainScope does not guarantee delivery dates. Customer acknowledges all Products are deemed accepted upon delivery, subject to applicable warranties, and that all Products are non-returnable.
3. Prices and Payment Terms.
Customer agrees to pay the applicable prices for the Products stated in the applicable Order, plus shipping charges, sales taxes, value-added taxes, import duties and other charges imposed by governmental authorities on the purchase of Products. BrainScope shall issue an invoice at the time of shipment, and Customer agrees to pay in full all invoiced amounts within thirty (30) days of the date of invoice. All Orders are subject to BrainScope’s review and approval of Customer’s credit, and BrainScope reserves the right to require full or partial payment prior to shipment.
4. Customer’s Use of Products.
Customer agrees to use the Products only in accordance with these Standard Terms and in compliance with all applicable laws and regulations. Without limiting the general application of the preceding sentence:
(a) Customer acknowledges that the Products are not designed for use other than in compliance with (i) their Intended Use(s), Indications for Use, and Directions for Use (each as set forth in the User Manual provided with the Products), and (ii) any other written instructions provided by BrainScope, and Customer agrees not to market or promote the Products in any manner inconsistent with the foregoing. Customer acknowledges that the Products are authorized for sale and use only within the jurisdictions where such sale and use has been authorized by the applicable governing authorities (e.g., U.S. FDA). Customer acknowledges that all clinical and medical treatment, diagnostic and/or billing decisions are Customer’s responsibility. Customer shall indemnify, defend, and hold harmless BrainScope, its affiliates and their respective officers, directors, employees and agents against any and all liabilities, damages and expenses (including, without limitation, attorneys’ fees) arising from any allegation or claim asserted by a third party against any of the indemnitees to the extent arising out of or relating to (i) a breach of the provisions of this Agreement by Customer; (ii) violation by Customer of applicable law; or (iii) Customer’s use or operation of the Products.
(b) As between the parties, Customer is solely responsible for compliance with the Health Insurance Portability and Accountability Act (“HIPAA”). Customer will ensure that any information or data provided to BrainScope under this Agreement will be de-identified in accordance with HIPAA provisions. Customer will not submit to BrainScope any “protected health information” (as such term is defined under HIPAA).
(c) Customer shall report to BrainScope (i) any adverse event relating to the Products and/or (ii) any and all complaints regarding any Product, by any user, patient or other third party, in each case, promptly upon becoming aware thereof and shall reasonably cooperate with BrainScope to comply with all applicable reporting obligations (including, without limitation, tracking the Products) and to resolve such complaints (as applicable).
(d) Customer acknowledges that all software embedded within the Equipment is proprietary to BrainScope and its licensors, and all such software is licensed, not sold. Customer may use such software only as embedded within the Products and only in accordance with these Standard Terms. In no event will Customer attempt to reverse engineer or modify the Products or any software therein.
5. Limited Product Warranty.
BrainScope warrants to the original purchaser only that (i) the Equipment will be free from defects in materials and workmanship for a period of one (1) year from the date of delivery, and (ii) all other products provided for use with the Equipment (e.g., disposable headsets) will substantially conform to applicable user documentation for 90 days following delivery. As BrainScope’s sole obligation and Customer’s exclusive remedy for any breach of the foregoing warranties, BrainScope will repair or replace, at BrainScope’s discretion, the Product that is subject to the warranty claim at no additional charge to Customer. Customer must notify BrainScope of the warranty claim within the applicable warranty period and must follow BrainScope’s instructions with respect to any return of Products. Customer shall bear the cost of return shipping. Notwithstanding the foregoing, in no event shall BrainScope have any obligation, and this warranty shall not apply, with respect to any Product that has been modified following delivery, used in a manner not contemplated in applicable user documentation, used in any manner that fails to comply with these Standard Terms, or, in the case of consumables or supplies (e.g., disposable headsets) provided with expiration dates, used after the applicable expiration date stated on the Product packaging. The foregoing warranties do not apply to wear and tear resulting from ordinary use. Customer may purchase an extended warranty to lengthen the limited product warranty for Equipment beyond the first year post-delivery.
6. Disclaimers and Limitations.
(a) To the maximum extent permissible under applicable law, BrainScope disclaims any and all representations and warranties in connection with the Products and/or this Agreement, whether express, implied, or statutory, including, without limitation, any warranties of merchantability, quality, fitness for a particular purpose, non-infringement, non-interference, data accuracy, and/or system integration, and all warranties that may otherwise be implied. No warranties are made on the basis of trade usage, course of trade, or course of performance.
(b) Customer acknowledges and agrees that BrainScope will not be liable for indirect, incidental, consequential, special, or punitive damages arising in connection with this Agreement, nor for loss of profits or reputational harms, regardless of the form of action or basis of the claim, and regardless of whether BrainScope is or should have been aware of the possibility of such damages. Customer acknowledges that this paragraph is an essential basis of the bargain between the parties. In no event shall BrainScope’s cumulative monetary liability in connection with this Agreement, for all claims considered in aggregate, exceed $1.
7. Miscellaneous.
BrainScope shall be entitled to refer to Customer as a customer of BrainScope in its sales and marketing materials and promotional efforts. No change or modification of any of the provisions of this Agreement shall be effective unless it is in writing and signed by a duly authorized representative of each party. If any provision of the Agreement is not enforced by BrainScope, it is not a waiver of that provision or of BrainScope’s right to later enforce it. In the event that any provision of the Agreement is deemed by a court of competent jurisdiction to be in violation of any applicable law or regulation or is otherwise declared invalid or unenforceable by such court, such provision shall be of no force or effect but the remaining provisions of the Agreement shall remain valid and in full force and effect. There are no intended third-party beneficiaries of the Agreement, and the Agreement shall be binding upon and inure to the benefit of each party and their respective affiliates, successors, legal representatives, and assignees. Customer shall not, without the written consent of BrainScope, assign or transfer the Agreement or any rights or obligations hereunder, and any attempted assignment by Customer in violation of the foregoing shall be null and void. The Agreement is governed by the laws of the State of Maryland (to the exclusion of its conflict of laws rules) and constitutes the entire agreement between the parties regarding the subject matter hereof, and supersedes all prior contracts, agreements, and understandings regarding such subject matter.
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