Terms & Conditions
These Terms of Purchase (“Terms”) govern your purchases of products (the “Products”) from insEYEt, LLC, a California limited liability company (“Company”). By purchasing Company’s Products, you agree to be bound by these Terms. For the purposes of these Terms and any Sales Order Form, “You” “Your” and “Customer” all mean you as the customer.
1. Definitions.
“Agreement” means, collectively, these Terms and the sales order page of your processed Order for the purchase of the Products.
“Intellectual Property Rights” shall mean, on a world-wide basis, any and all now known or hereafter known tangible and intangible (i) rights associated with works of authorship including, without limitation, copyrights, moral rights and mask-works, (ii) trademark and trade name rights and similar rights, (iii) trade secret rights, (iv) patents, designs, algorithms, computer programs and other industrial property rights, (v) all other intellectual and industrial property rights of every kind and nature and however designated, whether arising by operation of law, contract, license or otherwise, and (vi) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter existing, made, or in force (including any rights in any of the foregoing).
“Online Order(s)” means your Order of Products from the Company’s website at www.SimulEYE.com
“Order” means when you place an order and purchase the Product(s) either through an Online Order or a Wholesale Order.
“Sales Order Form” means the mutually executed sales order form between you and the Company for Wholesale Orders to which these terms are attached and incorporated therein by reference.
“Wholesale Order(s)” means your Order of Products placed through a Purchase Order for wholesale bulk purchases and confirmed by mutual execution of Company’s Sales Order Form which incorporates these terms.
2. Authorized Uses. The Products are designed for very limited uses and Company does not make any representations or advise using the Products in any manner except as set forth herein. The Products are solely intended for the following applications and shall not be permitted for any others:
- Medical device and equipment manufacturers may utilize the Products to:
· test their devices/equipment
· demo and showcase their other products for marketing and sales purposes
· train their customers (surgeons and medical staff) and to train students (residents and other trainees).
- Doctors may utilize the products to self-train and practice surgical procedures
- Medical residency programs, teaching institutions, Training centers, etc... may use the Products to train students and professionals
- Medical distribution companies may utilize the Products to:
· test their devices/equipment
· demo and showcase their other products for marketing and sales purposes
· train their customers (surgeons and medical staff) and to train students (residents and other trainees).
3. Warranty Disclaimers. THE PRODUCTS ARE OFFERED, AND YOU ACCEPT THE PRODUCTS, “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Company HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE PRODUCTS REMAIN WITH YOU.
4. Shipping, Packaging and Risk of Loss.
Online Orders: For Online Orders, Company is responsible for shipping and insurance and such costs will be included in your Online Order, along with a handling fee. Risk of Loss passes upon delivery to your designated shipping address.
Wholesale Orders: All shipments for Wholesale Orders will be made F.O.B. InsEYEt, LLC’s origin location. Delivery will be deemed complete, and risk of loss or damage to the Products will pass to you upon delivery to the carrier. All claims for damage in-transit shall be addressed with the carrier.
International Orders: Company will not be responsible for collecting customs or duties related to international orders, nor shall it be responsible for issues with customs attributed to any Orders. You agree to assume the sole risk related to customs issues in your country of origin.
5. Product Shelf Life Disclosure. The Company advises that some of the Products are made to order and have a very limited shelf life. Therefore, you should use them within the prescribed schedule set forth below. The Company makes no guarantee or warranties regarding the shelf-life or utility of any Products beyond this period.
Product Name Shelf-Life
Rhexis Kit 60 days from delivery
A-Vit 60 days from delivery
miLOOP lenses 30 days from delivery
All other Products shall not be subject to any shelf life limitations.
6. Intellectual Property. The Products, and all Intellectual Property Rights therein, belong exclusively to the Company. You are only granted the limited license to use the Products solely as authorized under Section 2 above and not for any other purpose. You will not reverse engineer, disassemble, modify, re-purpose or create derivative works or any other products from the Products and any such activities are hereby expressly prohibited. You agree that a breach of threatened breach of the preceding sentence will cause irreparable harm to the Company and which monetary damages would be difficult to prove. As such, you agree that the Company will be entitled to seek ex parte injunctive relief, without posting bond, to enforce its rights hereunder. Company will also be entitled to recover attorneys’ fees and costs associated with such action.
7. Limitations of Liability. IN NO EVENT SHALL Company BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES, WHETHER BY COMMON LAW OR STATUTE, ARISING HEREFROM OR RELATED HERETO IN ANY CAUSES OF ACTION OF ANY KIND, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Company’S TOTAL LIABILITY TO YOU FOR EVERY REASON SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE PRODUCTS YOU PURCHASED WITHIN THE THREE (3) MONTH PERIOD PRIOR TO THE TIME THE CLAIM AROSE.
8. Restrictions on Resale; Liquidated Damages. In no event shall you directly or indirectly re-sell the Products and all such activities are expressly prohibited. If the Company determines, in its sole discretion, that you are attempting to re-sell its Products, it will immediately terminate your ability to order Products in the future. Only authorized distributors that have signed Company’s distributor agreement are allowed to re-sell Company’s Products. Additionally, you agree that your resale of the Company’s Products in violation of this Section 8 would cause irreparable damage to Company’s good will and the public perception of quality as to the source of the Products. As such, as liquidated damages, and not as a penalty, you agree to pay Company the sum of One Thousand Five Dollars ($1,500.00) per each unit of Product you resell in violation of this Section 8. You agree that this amount is a reasonable assessment of the loss of good will and potential dilution of Company’s Intellectual Property Rights and hereby expressly waive any rights to require further proof thereof.
9. Defective Products; Replacement. The Company does not offer refunds on defective Product. In the event of a defect, you must report the defect to Company in writing within five (5) days of delivery to info@simuleye.com stating, with specificity: Your notice should provide your order number, contact information, identification of defective Products (including quantity), and a full explanation of the defect or deficiency (i.e. damage in shipment for Online Orders, missing components, etc.…). a Company representative will respond to you within five (5) business days of your notice for further investigation. Upon satisfactory determination of a defect that is based upon Company’s fault, as determined in Company’s sole discretion, Company will send you replacement Products.
10. Indemnification.
(a) You agree to defend, indemnify, and hold harmless Company and its respective directors, officers, employees, representatives, subsidiaries, affiliates, successors, permitted assigns and agents from and against any and all claims, suits, actions, demands, and legal proceedings (collectively “Claims”) and all liabilities, damages, losses, judgments, authorized settlements, costs and expenses including, without limitation, reasonable attorneys’ fees and expenses of litigation and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, arising out of, related to, or in any way connected with: (a) any of your alleged or actual acts or omissions related to your use of the Products; (b) any Claim that your use or misuse of the Products has caused bodily injury including, without limitation, death or has damaged real or tangible personal property.
(b) The Company shall notify you in writing of any Claim and cooperate with you at your sole cost and expense. You shall immediately take control of the defense and investigation of such Claim and shall employ counsel to handle and defend the same, at your sole cost and expense. Such counsel must be agreed upon in writing between the parties prior to any defense or investigation commencing of such Claim. If the parties are unable to agree upon counsel within a reasonable amount of time, then Company shall employ counsel at its sole discretion and at your sole cost and expense. You shall not settle any Claim in a manner that adversely affects the rights of Company without Company’s prior written consent. Company’s failure to perform any obligations under this Section 10 shall not relieve your of your obligations under this Section 10 except to the extent that you can demonstrate that you have been materially prejudiced as a result of such failure.
11. Miscellaneous.
(a) This Agreement constitutes the entire agreement between Company and you with respect to the subject matter hereof and supersedes all prior understandings, communications, and agreements between them, written or oral, regarding such subject matter.
(b) This Agreement shall not be modified, nor shall any provision hereof be waived or amended, except by a written amendment duly executed by you and an authorized representative of the Company.
(c) A waiver of any provision hereof with respect to one event shall not be construed as continuing, or as a bar to or waiver of any right or remedy as to subsequent events.
(d) If any provision hereof shall be held to be invalid or unenforceable, then such provision shall be reformed to the extent necessary to make such provision valid and enforceable when so applied.
(e) This Agreement shall be construed in accordance with the laws of the State of California applicable to contracts entered into and wholly to be performed therein, without regard to conflicts of laws provisions.
(f) You hereby irrevocably consent to the state and federal courts in Los Angeles, California as the sole and exclusive jurisdiction to adjudicate any disputes arising between the Company and you under these Terms.
(g) Any written notices to be given to Company hereunder shall be delivered via Certified US Mail:
insEYEt, LLC
Attn: Legal
5776-D Lindero Canyon Road #205
Westlake Village, CA 91362