HEALTH CARE PROVIDER PURCHASE AND SERVICES AGREEMENT
BY ACCEPTING THESE TERMS AND CONDITIONS (“AGREEMENT”), YOU AGREE THAT THIS AGREEMENT WILL APPLY TO EACH BUSINESS TRANSACTION BETWEEN THE PARTIES FOR THE SALE OF THE NULIDS® SYSTEM (AS DEFINED BELOW) (OR ANY PORTION THEREOF) AND PERFORMANCE OF SERVICES (AS DEFINED BELOW) HEREUNDER. ANY DIFFERENT OR ADDITIONAL TERMS OF A RELATED PURCHASE ORDER, CONFIRMATION OR SIMILAR FORM SIGNED BY THE PARTIES AFTER THE DATE HEREOF SHALL HAVE NO FORCE OR EFFECT ON THIS AGREEMENT OR ITS SUBJECT MATTER, AND PRE-PRINTED OR STANDARD TERMS OF PROVIDER’S PURCHASE ORDER ARE SPECIFICALLY EXCLUDED. FOR PURPOSES OF THIS AGREEMENT, “PROVIDER” SHALL MEAN THE PERSON/ENTITY PURCHASING STARTER KITS (AS DEFINED BELOW) HEREUNDER AND “COMPANY” SHALL MEAN TEENY CLEAN, LLC D/B/A NUSIGHT MEDICAL™. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT.
1. PRODUCTS. The products covered by this Agreement include (a) the NuLids® handpiece (including charger and charger cord) (“Handpiece”) and (b) the NuLids daily disposable soft tips (each a “Disposable Tip”, and together with the Handpiece, the “NuLids® System”), as made commercially available by Company during the Term (as defined below). As of the date this Agreement is accepted by Provider (the “Effective Date”), Company has a combined initial offering to Provider that includes the Handpiece and a 30-day supply of Disposable Tips (collectively, the “Starter Kit”) to be sold by Provider to patients. The Starter Kit may be modified by Company in its sole discretion. For patients that have purchased a Starter Kit or are otherwise in possession of a Handpiece, additional Disposable Tips are offered for sale directly by Company to patients through Company’s (and/or its designees’) website(s). In the event any portion of the NuLids® System is discontinued, recalled or otherwise withdrawn from the market, Company will have no obligation to provide such item(s) to Provider (or Provider’s patients). Nothing herein shall be construed to limit or restrict Company’s right, in its sole discretion, to discontinue the manufacture, sale and/or distribution of any portion of the NuLids® System.
2. PROVIDER RIGHTS. Subject to the terms and conditions of this Agreement, Company grants to Provider a non-exclusive, non-transferable right during the Term to (a) market, promote and resell Starter Kits to its patients and (b) market and promote the Disposable Tips for direct purchase by patients through Company’s (and/or its designees’) website(s). Provider agrees that it shall not acquire any portion of the NuLids® System for (i) any unlawful purpose or use or (i) commercial resale, transfer or trade, except to Provider’s patients as expressly permitted hereunder.
3. MARKETING AND BRANDING. Provider will use commercially reasonable efforts to market and promote the NuLids® System. In connection therewith, Company grants to Provider, during the Term, a non-exclusive, non-transferable right to use those Company trademarks and trade names that Company uses to commercialize the NuLids® System (collectively, “Company Marks”) for the sole and exclusive purpose of advertising and promoting the NuLids® System. Provider acknowledges Company’s exclusive ownership of the Company Marks. Provider will not adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the Company Marks or in such a way as to create combination marks with the Company Marks. Provider will provide Company with samples of all materials that contain the Company Marks prior to their public use, distribution or display for Company’s quality assurance purposes and will obtain Company’s approval before such use, distribution or display (excluding marketing materials provided by Company to Provider which are deemed to be approved by Company). All goodwill arising as a result of the use of the Company Marks shall inure to the benefit of Company.
4. ORDER AND DELIVERY.
4.1 Ordering. Provider may order Starter Kits for resale as permitted under this Agreement through Company’s website(s) and/or submitting purchase orders to Company in accordance with Company’s then-current order processing procedures. ALL ORDERS WILL BE SUBJECT TO ACCEPTANCE BY COMPANY, IN ITS SOLE DISCRETION, BY WRITTEN ACCEPTANCE OR SHIPMENT, WHICHEVER OCCURS FIRST. Orders cannot be cancelled or rescheduled once accepted by Company.
4.2 Product Availability. Fulfillment of orders under this Agreement is subject to the availability of the items ordered. Provider acknowledges and agrees that in situations of short supply, orders may be reduced in order for Company to apportion available items among its customers.
4.3 Packaging and Delivery. Company reserves the right to pack and ship orders in the most economical manner. Company will use commercially reasonable efforts to meet desired shipment dates in accepted purchase orders, but will not be liable to Provider (or its patients) in any way for any late shipment. All orders hereunder will be delivered F.O.B. shipping point and Provider shall be responsible for all shipping costs and risk of loss during shipment. Title (excluding intellectual property rights) will pass to Provider upon Company’s delivery of the ordered items to a common carrier.
5. PRICES AND PAYMENT.
5.1 Product Prices. For each Starter Kit ordered by Provider hereunder, Provider will pay to Company a discounted wholesale price, as set forth in Exhibit A attached hereto (Company’s then-current suggested retail list price shall be referred to as the “Retail Price” and the discounted price applicable to Provider shall be referred to as the “Wholesale Price”). Company’s Retail Price as of the Effective Date is set forth in Exhibit A and may be updated from time to time by Company upon 30 days’ advance notice to Provider. Notwithstanding the foregoing, from time to time, Company may offer special promotional discount pricing or free of charge promotional items to Provider to extend to patients. Provider may resell the Starter Kit at a price that it determines, provided, however, Provider shall consider in good faith the Retail Price, and Provider (along with all other resellers of NuLids® Systems, or any portion thereof), shall be subject to the Manufacturer’s Minimum Advertised Price Policy attached hereto as Exhibit B.
5.2 Taxes. Prices exclude all applicable sales, use and other taxes, export and import fees, customs duties and similar charges (collectively, “Taxes”). Any and all Taxes, when applicable, will be paid by Provider unless Provider provides Company with a tax exemption number or, at Company’s request, a valid tax exemption certificate.
5.3 Payments. Unless alternative payment terms are agreed upon by Company in writing, the Wholesale Price is due and payable prior to shipment. If alternative payment terms are agreed upon by Company in writing, then any invoice not paid when due shall accrue interest at the rate of 1.5% per month or the highest rate allowed by law, whichever is lower. In the event that Company undertakes any action to collect any delinquent accounts, Provider agrees to pay Company’s costs of collection or attempt to collect payment thereof, including all attorneys’ fees and court costs.
6. PROVIDER SERVICES.
6.1 Services to be Provided by Provider. In consideration for Provider’s receipt of the Services Fees (as defined below), Provider (and/or Provider’s staff) will provide those services reasonably requested by Company in connection with Provider’s patients’ use of the NuLids® System, including without limitation, (a) instruction, training and customer support services related to the use of the Products, (b) monitoring patients’ use of the Products, and (c) providing to Company feedback and data reasonably requested by Company related to patients’ use of the Products (collectively, the “Services”). Without limiting the generality of the foregoing, the Services will include, but not be limited to:
(a) Registering each patient receiving a Starter Kit on Company’s NuSight™ designated web portal (the “Patient Portal”). Once registered, the patient will be eligible for coverage under the limited warranty (as described in Section 7.2). The Patient Portal will also provide the patient access to educational materials for proper use and care of the NuLids® System.
(b) Training each patient on the Patient Portal, including timely ordering and reordering of Disposable Tips and available patient education modules.
(c) Answering patient questions regarding the NuLids® System, following-up with patients to ensure proper and timely use of the NuLids® System, recommending additional education or training for patients, and otherwise assisting patients with use of the NuLids® System.
(d) Ensuring that each patient understands the risks associated with non-compliance with Company’s published documentation and instructions for use (“IFU”), including without limitation, frequency of use of the NuLids® System (as of the Effective Date Company’s recommendation of 15 seconds per eye lid margin per day is based on findings from multi-site clinical trials), SINGLE USE and IMMEDIATE DISPOSAL AFTER ONE USE of the Disposable Tips, and the risks associated with failure to use the NuLids® System as instructed (including reuse of Disposable Tips).
(e) Immediately, but in no event more than 1 business day after Provider (and/or Provider’s staff) learns of any complaint about the NuLids® System involving a real or possible defect in the NuLids® System or adverse reaction in a patient, (i) reporting such complaint to the NuSight Medical Provider Solutions desk at 1-(866)-3NULIDS and (ii) submitting a full written report concerning the complaint to Company. Without limiting the foregoing, Provider (and Provider’s staff) shall cooperate fully with Company, and any government agencies concerned, in investigating and resolving any complaint regarding the NuLids® System.
(f) Informing the patient of the limited, one-year Product Warranty (as defined below) and the Company’s return policy and procedures.
In order for Provider to provide the Services, Company will provide reasonable training for Provider and Provider’s staff on proper patient use of the NuLids® System and use of the Patient Portal through which Provider can order additional Starter Kits, register and track patients’ use of Disposable Tips, and direct additional staff and patient training.
6.2 Services Fees. In consideration of Provider’s performance of the Services, Company will pay to Provider or Provider’s designee, a services fee for each Qualified Patient (as defined below), equal to 40% of the Disposable Tips Net Sales (the “Services Fees”). For purposes of this Agreement, “Disposable Tips Net Sales” means the gross amounts actually received by Company from Qualified Patients for sales of Disposable Tips by Company to such Qualified Patients, less (i) credits and refunds actually granted, returns or rejections of such products, price adjustments and billing errors, (ii) sales taxes, value added taxes and other taxes to the extent included in the gross amount invoiced, (iii) shipping expenses, import and export duties, and similar costs applied to the sale of such products to the extent included in the gross amount invoiced. Each patient prescribed the NuLids® System by Provider (including Provider’s staff) and registered by Provider on the Patient Portal during the Term shall be considered a “Qualified Patient” hereunder for so long as (A) such patient is under the care of Provider as confirmed by such patient and/or reasonably determined by Company and (B) Provider continues to provide the Services with respect to such patient. Within 30 days following the end of each calendar quarter, Company shall provide Provider with a report detailing its calculation of the Services Fees earned by Provider for such calendar quarter and will include with such report the Services Fees payable to Provider.
7.1 Warranties by Both Parties. Each party warrants that the person signing this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement. Each party further warrants that it shall comply with all laws and regulations applicable to its performance under this Agreement, including without limitation, all consumer protection, privacy, anti-bribery and export control laws.
7.2 Company’s Warranties. Company offers the following limited warranty for the Handpiece (the “Product Warranty”) which Provider can pass-through to its patients: For a period of 1 year following a patient’s first receipt of the Handpiece (the “Warranty Period”), the Handpiece will, when used in accordance with the IFU, be free from defects in workmanship and materials and will operate in substantial conformance with the IFU. During the Warranty Period, Company will use commercially reasonable efforts to respond to service calls for critical down-time situations (which shall be defined as the inability of the Handpiece to perform in substantial conformance with the IFU). Company shall use commercially reasonable efforts to provide a response time within 8 business hours of notification between the hours of 8:00 AM and 5:00 PM PT, Monday thru Friday, excluding Company-observed holidays. Calls received after 3:00 PM PT will result in a next-day service response. Company will, at its own expense and as its sole obligation and Provider’s (and its patient’s) exclusive remedy for any breach of the foregoing warranty, as applicable (a) repair or replace the defective Handpiece or, at Company’s option, refund the amounts paid to Company for such Handpiece and/or (b) re-perform the services which gave rise to the breach; provided that Provider (or the applicable patient) notifies Company in writing of the breach within the Warranty Period, specifying the breach in reasonable detail. Any replacement parts provided in connection with the Product Warranty are covered under the Product Warranty for the remainder of the original Warranty Period, after which the Product Warranty shall expire. When and if any Handpiece is exchanged, such replaced Handpiece become the sole property of Company. Further details of the Product Warranty are set forth in the NuSight Medical Return Policy attached hereto as Exhibit C.
7.3 Disclaimer of Warranty. EXCEPT AS SET FORTH HEREIN, THE NULIDS SYSTEM™ IS PROVIDED AS-IS. THE EXPRESS WARRANTIES IN THIS SECTION 7 ARE IN LIEU OF, AND COMPANY HEREBY DISCLAIMS, ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE NULIDS SYSTEM™ AND SERVICES PROVIDED BY COMPANY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. PROVIDER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS SECTION 7.
7.4 No Inconsistent Warranties. Provider will not make or publish any representations, warranties, or guarantees on behalf of Company concerning the NuLids® System (or any portion thereof) inconsistent with the Product Warranty.
7.5 No Returns. Items may only be returned pursuant to the NuSight Medical Return Policy attached hereto as Exhibit C, as such policy may be updated from time to time by Company upon advance notice to Provider. Items may not be returned without Company’s prior written authorization. Any approved returns may be subject to restocking charges.
8. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA OR PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT, THE NULIDS SYSTEM™ AND/OR THE SERVICES PROVIDED HEREUNDER. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE NULIDS SYSTEM™ AND/OR THE SERVICES PROVIDED HEREUNDER, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE GREATER OF THE AMOUNTS PAID TO COMPANY OR TO PROVIDER UNDER THIS AGREEMENT FOR THE CALENDAR QUARTER PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY.
9. CONFIDENTIALITY. The terms of this Agreement, including all pricing and Services Fees, and any confidential and/or proprietary information of Company disclosed to Provider under this Agreement, shall be held by Provider in confidence and not disclosed to any third party during the Term and for 2 years thereafter, except to the extent required to be disclosed by law or by the order of a court or similar judicial or administrative body; provided, however, that Provider shall notify Company of such disclosure requirement immediately and in writing, and shall cooperate with Company, at Company’s expense, in the obtaining of a protective or similar order with respect thereto.
10. TERM AND TERMINATION.
10.1 Term. Unless earlier terminated pursuant to this Agreement, the initial term of this Agreement will begin on the Effective Date and will conclude after a period of 1 year (the “Initial Term”). Thereafter, the term shall automatically renew for additional periods of 1 year each (each a “Renewal Term”) unless a party provides notice to the other party of its intention not to renew at least 30 days prior to the expiration of the then-current term. The Initial Term together with all Renewal Terms shall be referred to as the “Term.”
10.2 Termination. Each party may terminate this Agreement if (a) the other party’s activities under this Agreement require it to qualify to do business under the laws of the jurisdiction(s) where such activities are conducted, and such party either fails to so qualify or, having qualified, subsequently ceases to qualify, or (b) the other party breaches any provision of this Agreement and does not, to the extent the breach can be cured, cure the breach within ten (10) days after receiving notice thereof from the terminating party. In addition, each party may terminate this Agreement for its convenience upon thirty (30) days’ advance notice.
10.3 Effects of Termination. Upon termination or expiration of this Agreement for any reason, all resale and other rights granted to Provider in this Agreement will immediately terminate and Provider must promptly discontinue all further use of the Company Marks. The expiration or termination of this Agreement shall not limit or restrict Company from directly selling the NuLids® System (or any portion thereof) to Provider patients. The following provisions will survive expiration or termination of this Agreement pursuant to their terms, together with any other provisions necessary for their construction and enforcement: Sections 6.1(e), 6.2, 7, 8, 9, 10.3 and 11. For the avoidance of doubt, upon the termination or expiration of this Agreement, Company will continue to pay to Provider the Services Fees pursuant to Section 6.2 so long as (a) the applicable patient is under the care of Provider as confirmed by such patient and/or reasonably determined by Company and
(b) Provider continues to provide the Services with respect to such patient. 11. GENERAL.
11.1 Assignments. Provider may not assign its rights or delegate its obligations under this Agreement without the prior written consent of Company, which consent shall not be unreasonably withheld or delayed. Any attempted assignment of this Agreement not in accordance with this subsection shall be null and void.
11.2 Notices. All notices required under this Agreement will be in writing (including email) and deemed effectively given: (a) upon personal delivery to the party to be notified; (b) on the date on which such notice is delivered by email with confirmation that the email has been received and read; or (c) one (1) business day after deposit with a recognized overnight courier that provides tracking and verification of delivery (e.g. Federal Express, UPS). All notices shall be sent to the addresses on file for the other party or at such other address(es) as a party may designate by advance notice to the other party.
11.3 Governing Law and Dispute Resolution. This Agreement will be governed by the laws of California, without regard for its conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. If a dispute or controversy regarding any matter under this Agreement arises between the parties which they are unable to resolve (a “Dispute”), such Dispute shall be submitted to final and binding arbitration before JAMS (formerly Judicial Arbitration and Mediation Services), or its successor. Either party may commence the arbitration process called for in this Section by filing a written demand for arbitration with JAMS, with a copy to the other party. The arbitration will be conducted in accordance with the provisions of JAMS’ Comprehensive Arbitration Rules and Procedures in effect at the time of filing of the demand for arbitration. The parties will cooperate with JAMS and with one another in selecting a single arbitrator from JAMS’ panel of neutrals, and in scheduling the arbitration proceedings, which shall take place in San Diego, California. The parties covenant that they will participate in the arbitration in good faith, and that they will share equally in its costs. The provisions of this Section may be enforced by any Court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including reasonable attorneys’ fees, to be paid by the party against whom enforcement is ordered.
11.4 Remedies. Except as otherwise expressly provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative.
11.5 Waivers. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.6 Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any applicable jurisdiction, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement will continue in full force and effect.
11.7 Construction. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted.
11.8 Force Majeure. Neither party shall be liable for any delay or failure of performance resulting from any cause beyond such party’s reasonable control, including weather, civil disturbances, acts of civil or military authorities, or acts of God.
11.9 Independent Contractors. Provider’s relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other. Provider will not have, and will not represent to any third party that it has, any authority to act on behalf of, or bind, Company.
11.10 Entire Agreement. This Agreement (including any exhibits or attachments hereto) constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior and contemporaneous agreements, understandings, marketing materials, and communications, whether written or oral. This Agreement may be amended only by a written document signed by both parties.
STARTER KIT PRICING
Wholesale Price (as of the Effective Date): $219
Retail Price (as of the Effective Date): $319*
*The Retail Price applies to Company’s Minimum Advertised Price Policy
MANUFACTURER’S MINIMUM ADVERTISED PRICE POLICY
Teeny Clean, LLC d/b/a NuSight Medical™ (“Company”) recognizes that its success is tied to the success of its network of select authorized resellers, many of which invest significant time and resources to market and promote Company’s NuLids® System (or any portion thereof). In order to discourage price-based advertising that would be detrimental to Company’s resellers, Company has unilaterally established a Minimum Advertised Price Policy (“MAP Policy”) which will be effective as of September 1, 2018. This MAP Policy is designed to preserve the premium branding and pricing associated with the NuLids® System (or any portion thereof). Any information relating the NuLids® System (or any portion thereof), in print, on display, or on an Internet website, communication or application (including on mobile) is considered to be advertising for the purposes of the policies set forth herein.
1. MAP Policy Coverage
(a) This MAP Policy applies to any person or entity that sells the NuLids® System (or any portion thereof) to customers (each a “Reseller”).
(b) This MAP Policy applies with respect to any “Handpiece” or “Starter Kit” for which a minimum advertised price (“MAP”) is specified on any price list or product list provided or otherwise made available to Resellers by Company or its distributors (the “Covered Products”).
(c) Resellers may not list, advertise or promote Covered Products for sale at prices that are below the Covered Product’s MAP, whether through traditional advertising media, or online, on the internet, or through electronic media including web sites (whether 3rd party owned or otherwise), e-mails, digital advertisements, mobile applications, social media sites or through other on-line media. Any such activity shall constitute a violation of this MAP Policy.
(d) Advertisements or promotions for Covered Products may include category, percentage or specific dollar amount discounts for such Covered Products, but if the discount(s) result in a net advertised price below the MAP for the Covered Product, then the advertisement will be a MAP Policy violation.
(e) This MAP Policy applies only to minimum advertised prices and does not establish maximum advertised prices.
(f) This MAP Policy does not apply to the price at which Covered Products are actually sold or offered for sale to a customer; provided, however, website features such as “click for price”, automated “bounce-back” pricing emails, pre-formatted email responses, forms, automated price display for any Covered Products prior to being placed in a customer’s shopping cart, and other similar features are considered to be communications initiated by the Reseller (rather than by the customer) and constitute “advertising” under this MAP Policy.
(g) It shall not be a violation of this MAP Policy to advertise that a customer may “call for price” or “email for price”, or to use similar language with respect to Covered Products so long as no price below the applicable MAP is listed.
(h) This MAP Policy also applies to any activity which Company determines, in its sole discretion, is designed or otherwise intended to circumvent the intent of this MAP Policy.
2. Unilateral Policy
(a) This MAP Policy has been unilaterally adopted by Company and will be uniformly enforced.
(b) This MAP Policy is non-negotiable and does not constitute an agreement between Company and any Reseller. Company is not seeking, and will not accept, a response or any assurance of compliance from any Reseller.
3. MAP Policy Enforcement
(a) Violations of this MAP Policy shall be determined by Company in its sole discretion.
(b) Company reserves the right, in its sole discretion, to discontinue doing business with any Reseller that advertises any Covered Product at a price lower than the applicable MAP. Without limiting the generality of the foregoing, Company reserves the right to cancel any pending orders, restrict future orders, or suspend a Reseller’s account if Company reasonably believes (i) the Reseller has violated any provision of this MAP Policy or (ii) the Reseller intends to violate this MAP Policy.
(c) Company reserves the right, in its sole discretion, to take any other action with respect to any Reseller that violates this MAP Policy, in addition to or in lieu of those described above.
(d) Enforcement of this MAP Policy may be undertaken by Company directly and/or through its authorized distributors.
(e) Company may, at any time, vary the MAP for a Covered Product, add to or delete any or all of the Covered Products, or at any time otherwise modify, suspend or discontinue this MAP Policy in whole or in part or specify certain periods (e.g. promotional periods) during which it shall be inapplicable by providing prior notice to all Resellers of such change(s).
(f) From time to time, Company may offer a direct manufacturer’s rebate to customers purchasing a Covered Product. In such event, it shall not be a violation of this MAP Policy to advertise the availability of the rebate for the Covered Product, provided that (i) the advertisement lists a MAP-compliant price, the rebate amount, and the net price after applying the manufacturer’s rebate (“Net Price”) in the same type size and style; (b) an asterisk (*) is placed next to the Net Price; and (c) “*after manufacturer’s rebate” appears in the same area of the advertisement of the Net Price.
NuSight Medical is committed to offering quality NuLids products and services at an exceptional value. Our goal is to ensure that our NuLids products and services meet or exceed your expectations on quality and performance
If your NuLids device has a defect in its materials or workmanship, you can exchange it at any time during the first year.
NuSight Medical warrants its NuLids Systems to be free from defects in materials and workmanship [subject to the terms set forth herein] when used normally in accordance with the official documentation for the applicable Warranty Period from the date of purchase. As the NuLids hand piece contains a rechargeable battery, NuSight Medical does not provide any warranty with respect to battery life, as all rechargeable batteries can be expected to lose charging capacity over time Your actual battery life will vary depending on the conditions under which it is used.
NuSight Medical may limit or refuse requests for exchanges in the event of fraud or violations of these Terms and Conditions, as determined in NuSight Medical's sole discretion. Our Return Policy is limited to products purchased directly from NuSight Medical or an authorized distributor. This warranty applies only to units that have been registered on the NuSight Medical website to patients. Demonstration units are not covered under this warranty. Please note that for items purchased from other sources, we cannot offer warranty support.
The entire product must be returned to NuSight Medical. This includes the hand piece, charger plug, and charger cord. [See the Return Instruction section below for more detailed information].
WARRANTY EXCLUSIONS AND LIMITATIONS
This Limited Warranty does not cover:
• Problems with and/or damage to the Product caused by using charger cords, charger plugs, accessories, parts, or components other than those provided in the original NuLids System Starter Kit
• Damage caused by service (including upgrades and expansions) performed by anyone other than an authorized NuSight Medical representative.
• Claims arising from any unacceptable use or care of the Product, including (without limitation) misuse, abuse, negligence, unauthorized modification or repair, unauthorized commercial use or any operation of the Product outside NuSight Medical's recommended parameters;
• Claims arising from external causes, including (without limitation), accidents, acts of God, liquid contact, fire or earthquake;
• Products with a serial number or date stamp that has been altered, obliterated or removed;
• Cosmetic damage, including normal wear and tear, including (without limitation), scratches, dents, and/or chips.
REMEDIES UNDER THIS LIMITED WARRANTY
If an eligible claim on the Limited Warranty is received by NuSight Medical within the applicable Warranty Period, NuSight Medical will (at its sole option) either:
(a) repair the Product or the defective parts at no charge, using new or refurbished replacement parts; or (b) exchange the Product with a Product that is new, or which has been manufactured from new or serviceable used parts and is at least functionally equivalent to the original Product. The Product presented for repair may be replaced by a refurbished Product of the same type rather than being repaired. Refurbished parts may be used to repair the goods. NuSight Medical reserves the sole right to determine whether a claim is eligible and/or whether the Product is defective. Where the Product is an "end of life" Product model, NuSight Medical may (at its sole option) exchange the Product with a functionally equivalent substitute model from NuSight Medical's current Product offering. NuSight Medical has the sole option to provide any other type of remedy in addition to or in substitution of the aforesaid remedies. Repaired or exchanged Products shall be warranted free from defects for a period of ninety (90) days after date of repair or exchange (as the case may be), or for the remainder of the original Warranty Period, whichever is longer.
ENTIRE LIMITED WARRANTY
ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE LIMITED TO THE DURATION OF THE APPLICABLE WARRANTY PERIOD. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, ARE DISCLAIMED. Some jurisdictions do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you. This Limited Warranty gives you specific legal rights, and you may also have other rights which vary by jurisdiction. No NuSight Medical reseller, agent, distributor, employee, or authorized prescribing doctor may alter or extend the terms of this Limited Warranty or make any representation whatsoever. NuSight Medical reserves the right to amend the terms of this Limited Warranty at any time without notice.
LIMITATION OF LIABILITY
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL NUSIGHT MEDICAL BE LIABLE FOR ANY LOST PROFIT, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES (OTHER THAN PERSONAL INJURY DAMAGES), HOWEVER CAUSED REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE A PRODUCT, EVEN IF NUSIGHT MEDICAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL NUSIGHT MEDICAL’S LIABILITY EXCEED THE AMOUNT PAID BY YOU FOR THE PRODUCT. The foregoing limitations will apply even if any warranty or remedy provided under this Agreement fails of its essential purpose. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
DO NOT SEND NUSIGHT MEDICAL ANY NULIDS PRODUCT WITHOUT A VALID RETURN MATERIALS AUTHORIZATION [RMA] NUMBER.
We advise that you select a method of shipping that is traceable (i.e. UPS, DHL, FedEx). Any expense of claiming under this Limited Warranty will be borne by the person making the claim (including any shipping and handling charges in returning the Product to NuSight Medical, as well as any applicable customs, duties or taxes in relation to the claim). If the Product is returned in accordance with the terms of this Limited Warranty, NuSight Medical will be responsible for postage expenses for shipping the Product back to you (but not any customs charges, duties, or taxes). You are responsible for ensuring that the Product is properly packaged and will bear the full risk of loss or damage for any Product that is returned improperly packaged. Risk of loss or damage in the returned Product only passes to NuSight Medical when NuSight Medical receives the Product. NuSight Medical shall not be responsible for items lost in transit to us. In the event that the procedure herein is not followed, NuSight Medical reserves the right to accept the delivery of the Product on such terms that it may determine at its sole discretion.
RETURNS NOT COVERED BY THIS LIMITED WARRANTY
If NuSight Medical receives a Product from you that does not meet the requirements of this Limited Warranty, including (but not limited to) a Product that (a) lacks a valid RMA Number, (b) or lacks a valid Proof of Purchase – if requested, (c) is no longer covered under the Warranty Period, or (d) does not have a defect covered by this Limited Warranty, you will be responsible for an assessment fee, return shipping and handling fees, and other reasonable fees as may be required by NuSight Medical prior to the Product being returned to you.
This Limited Warranty gives you specific legal rights, and you may have other rights that vary by your country, province, or state, as applicable. Other than as permitted by law, NuSight Medical does not exclude, limit, or suspend other rights you may have. For a full understanding of your rights, you should consult the laws of your state, as applicable.
This Limited Warranty applies only to the original purchaser of the Product and is non-transferable. This Limited Warranty is only valid in the United States. This Limited Warranty is governed by and construed under the laws of the United States in which the original Product purchase took place. No NuSight Medical reseller, agent, distributor, or employee is authorized to make any modification, extension, or addition to this Limited Warranty. If any term of this Limited Warranty is held to be illegal or unenforceable, the legality or enforceability of the remaining terms shall not be affected or impaired.
INITIATING A RETURN
• NuLids System [complete with the hand piece, charger cord and charger plug] must be returned directly to NuSight Medical,
• The return must come from the customer, (practice doctor, practitioner, MD or OD), who originally purchased the product,
• A valid RMA is required before shipping any product to the Company. Failure to do so, will result in a forfeiture of credit. Please call the NuSight Medical Customer Solutions Center at  468-5437 or email CS@NuSightMedical.com to request an RMA number. IMPORTANT: Items shipped without a valid RMA number will be refused by the Company.
• When requesting an RMA number, you will need to provide the doctor’s full name, address, city & state, phone, and email address. Please briefly explain the reason for the return.
1. Place the NuLids System in its original packing box using the packaging materials provided. Note: NuSight will not be responsible for any damage that may occur during shipment:
2. Secure a ‘Ship To’ label to the front of the box [Note: All returns must be addressed to NuSight Medical, 1835A. S Centre Parkway #401, Escondido, CA 92025 ATTN: Returns];
3. Place a current return address label on the box. [In the case of a warranty exchange, be sure to also include in the box the address where you would like the replacement unit shipped. Note: If the product failure is covered under the Manufacturer’s Warranty, the return shipping fee will be paid by NuSight Medical; And, 4. Put your RMA number on the outside of the box;
5. Please note that the RMA number must be noted on the outside of the returned product's package. You will be considered to have returned the said product to NuSight Medical if you have delivered the entire product to a carrier and have taken all necessary steps to ensure that the product is delivered to NuSight Medical, including paying all shipping charges in returning the product to NuSight Medical. We advise that you select a method of shipping that is traceable.
6. Risk only passes to NuSight Medical when the returned product is received by NuSight Medical and NuSight Medical shall not be responsible for items lost in transit to us.
7. You will receive an equivalent replacement for the returned product [excluding any charges for the shipping and handling of the product to you] within 45 days of NuSight Medical’s receipt of the returned product. In the event that the return procedure herein is not followed, NuSight Medical reserves the right to accept the return of the product on such terms that it may determine at its sole discretion.
It can take 7 to 14 days for the return to be processed once the unit is received and an additional 3-5 business days for the refund to be generated or the replacement shipped.
Tax refunds are governed by local laws and may vary by location and will be managed accordingly.
You will be required to return the item at your own expense. If the returned System is deemed to be defective and under warranty, you will be refunded the shipping cost when your return is processed.