VisEn Standard Terms and Conditions of Sale

Binding Contract; Sole Terms.  These standard terms and conditions below, together with VisEn's Quotation (VisEn's Quotation), any applicable label, license or written Product warranty, all riders and attachments hereto, and any other terms and conditions expressly agreed to in writing by an authorized representative of VisEn (collectively, Terms), govern the purchase and sale of VisEn's products (Product(s)) and constitute the entire agreement and understanding of the purchaser of the Products (Buyer) and VisEn Medical (VisEn).  VisEn's offer to sell is expressly limited to the Terms.  Buyer's issuance of a purchase order to VisEn or acceptance of delivery for any Products provided hereunder shall constitute Buyer's acceptance of all Terms without modification or supplementation.  The Terms shall take precedence over and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, and any of Buyer's additional or different terms and conditions, which are hereby rejected and shall be void.  If Buyer's purchase order or any other document or instrument delivered by Buyer to VisEn contains provisions inconsistent with or in addition to the Terms, the Terms shall prevail. 

Price.  The price for any Product shall be the price stated in VisEn's Quotation.  VisEn's Quotations are valid for 30 days unless otherwise stated in VisEn's Quotation.  Prices stated are exclusive of all taxes, fees, licenses, duties or levies and, unless otherwise stated in VisEn's Quotation, transportation charges, freight and insurance.

Taxes and Other Charges.  Any use tax, sales tax, excise tax, duty, inspection or testing fee, or any other tax, fee or charge imposed by any governmental authority on or measured by the purchase of any Products, as well as any fee, license, duty, levy or transportation, freight or insurance charge applicable to such Products, is the responsibility of the Buyer, and will be billed in addition to the prices quoted or invoiced.  If applicable, the Buyer is responsible for providing VisEn at the time the order is submitted with an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.

Payment Terms.  Payment Terms for all Products are net 30 days from the date of invoice.  Late charges may be added to invoices not paid within the 30 day time period at a rate of 1% per month or the maximum legal rate, whichever is the lower rate.   Payment to VisEn for Products purchased must be made by check or bank transfer to the address or bank account (as appropriate) on the invoice.  Payment must be in US dollars; however, Buyer may request payment in other currency, which is subject to pre-approval by VisEn. VisEn reserves the right, prior to shipment or installation, to require from Buyer satisfactory security for Buyer's payment obligations.  If Buyer fails to provide satisfactory security, VisEn reserves the right to cancel any order without any penalty to VisEn whatsoever. VisEn's rights and remedies in this Section 4 are in addition to any other rights and remedies at law or in equity.

Delivery, Title, and Risk of Loss.  VisEn will use reasonable efforts to ship Products within a reasonable time after ordered, or, if a shipment date is indicated in VisEn's Quotation, on or before such date. VisEn may make delivery in installments, and each installment shall be deemed to be a separate sale for which VisEn may invoice, and Buyer shall pay separately.  Any quoted delivery date is only an estimate and not a guarantee.  Unless indicated otherwise in VisEn's Quotation, title and risk of loss or damage with respect to all Products shall pass from VisEn to Buyer when Products are delivered by VisEn to the carrier for shipment to Buyer.  Any and all claims by Buyer for damage, loss or delays in transit shall be made by Buyer against the carrier (with notice thereof to VisEn), and VisEn shall have no responsibility or obligations with respect to any such damage, loss or delay.

Rejection.  Any claims for damaged, missing or defective Product must be reported in writing by Buyer within 15 days from the date of receipt of Product.  In addition, Buyer must promptly return a rejected Product to VisEn, C.O.D, accompanied by a valid return authorization number obtained from VisEn. VisEn may refuse any Product not timely rejected or sought to be returned without a valid return authorization number. For any valid claim timely made, VisEn, at its option, may repair Product or replace Product with an identical or substantially similar product or refund the purchase price actually paid for the Products. THESE ARE BUYER'S SOLE AND EXCLUSIVE REMEDIES FOR DAMAGED OR MISSING PRODUCTS, AND, EXCEPT FOR EXPRESS WARRANTY RIGHTS, FOR DEFECTIVE PRODUCTS.

Warranty; Disclaimer.  VisEn makes only those warranties with respect to any Product expressly identified as "warranties" and set forth in the specific written warranty included with and covering that Product, if any.  ANY PRODUCT NOT COVERED BY A WRITTEN WARRANTY IS SOLD "AS IS."  VisEn expressly disclaims all other warranties, express or implied, including without limitation, implied warranties of merchantability, fitness for any particular purpose and, subject to the provisions of Section 11 below, noninfringement.  VisEn Products may be used for a wide range of imaging applications.  Some applications may require licenses from third parties.  VisEn's sale or other transfer of its Products does not convey any right or license under any third party patent or other intellectual property right.  Buyer is advised to consult with counsel to determine whether any license from third parties may be required in order to practice a particular imaging application.  VisEn disclaims any and all responsibility for any rights or licenses to patents or other intellectual property that may be required from third parties, and/or liability with respect to such third party patents or other intellectual property.

Prohibited Activities.  Buyer shall not : (i) resell, distribute, supply, license or otherwise commercialize any of the Products; (ii) use of any of the Products to carry on or conduct any service business, including, without limitation, any commercial fee-for-service in vivo animal imaging business; (iii) alter, modify or reverse engineer any of the Products; (iv) decompile, disassemble or otherwise attempt to derive any source code of any software included in any of the Products; (v)  use any of the Products in any research and development program or activities for the purpose of discovering, creating or inventing improvements or modifications to any of the Products or for the purpose of developing for commercial purposes any new imaging equipment or new reagents, kits or consumables; or (vi) use the Products other than by Buyer as an end user thereof to conduct in vivo animal imaging research and development activities at Buyer's premises for the benefit of Buyer and in no event on behalf of any person other than Buyer.  Notwithstanding these prohibitions, to the extent that any know-how, trade secrets, copyrightable materials, information, design, documentation, drawings, source code or invention(s) directly relating to any Product or any improvements to any Product is created, conceived, reduced to practice or otherwise developed by Buyer as a direct result of Buyer's use of any Product(s), Buyer agrees to assign to VisEn all of Buyer's right, title and interest to any and all of such rights, including without limitation, all intellectual property rights therein.  VisEn hereby grants to Buyer a limited right and license to use all of such for the sole purpose of using the Products as contemplated by VisEn and these Terms.  The provisions of this Section 8 shall be binding and enforceable against Buyer's direct and indirect parent companies, subsidiaries, affiliates, sublicensees, successors and assigns and shall inure to the benefit of any successor or assignee of Buyer, regardless of whether such succession or assignment is voluntary or by operation of law. 

Research and Development Use Only and Validation.  Except as expressly provided by separate written contract, Products ordered from VisEn are sold only for use by the Buyer as an end user in connection with in vivo animal imaging research and development activities by Buyer. They are not intended for any human, food, drug, household, agricultural or cosmetic use and may not be used in clinical trials.   Buyer agrees that if it elects to use Products for a purpose that would require Buyer to obtain any governmental, agency or other third party approval under the laws of any applicable jurisdiction, Buyer shall be solely responsible for obtaining such required approvals and otherwise ensuring that its use of any Products complies with such laws.  Buyer agrees that it is the Buyer's responsibility, and not VisEn's, to validate the performance of Products for any specific use or application and to ensure that Products meet applicable regulatory, certification, validation or its other requirements, since the use and performance characteristics of Products have not been validated by VisEn for any specific use or application, except as may be otherwise expressly set forth by VisEn in writing. Products should be used in strict accordance with applicable instructions, warnings and other information in user manuals and other Product documentation.

Force Majeure.  VisEn shall not be liable for any delay or failure of performance, including without limitation failure to deliver or failure to install, where such delay or failure arises or results from any cause beyond VisEn's control, including, but not limited to, flood, unusually severe weather, earthquake or other act of God, power loss, strike, boycott, or other labor disputes, embargo, governmental regulation or an inability or delay in obtaining materials. In the event of any such delay or failure of performance, VisEn shall have such additional time within which to perform its obligations hereunder as may be reasonably necessary under the circumstances; and VisEn shall also have the right, to the extent necessary in VisEn's reasonable judgment, to apportion Products then available for delivery fairly among its various customers in such manner as VisEn may consider equitable.

 Infringement of Intellectual Property.  If the intended use as set forth in the Terms or user documentation of any Product sold by VisEn to Buyer becomes the subject of a third party suit alleging that such use infringes a valid U.S. patent of such third party or constitutes a misappropriation of a trade secret of such third party ("Infringement Claim"), Buyer shall promptly notify VisEn in writing of such Infringement Claim, and upon receipt of which, VisEn shall, at its sole discretion, have the right to: (i) procure for Buyer the right to continue practicing the intended use of the VisEn Product; or (ii) replace or modify any VisEn Product so that the intended use becomes non-infringing; or (iii) require Buyer to return any VisEn Product that is the subject of the Infringement Claim and upon return, refund to Buyer the price actually paid by Buyer for the returned Product, pro rata based on the period of time from receipt of the VisEn Product by Buyer to return using three-year straight-line depreciation.  Further, if, in VisEn's opinion, the intended use of the VisEn Product is likely to become the subject of an Infringement Claim, VisEn may also, at its sole discretion but without obligation, in accordance with (i), (ii) or (iii) so procure continuing rights, replace or modify, or pro rata refund the price actually paid.  In addition to, and not in limitation of, the provisions of Section 7, above, VisEn shall have no liability or obligation under this Section 11 for any Infringement Claim based upon, arising from or caused by: (a) the use of any VisEn Product in combination with any system, reagent, or material not provided by VisEn or not intended for use with VisEn Products, or based upon any modification to any VisEn Product made by Buyer or a third party, if such Infringement Claim would not have occurred but for such combination or modification; (b) any modification to any VisEn Product, whether made by VisEn, Buyer, or any third party, and made at the request or direction of Buyer; or (c) any use of any VisEn Product other than for the express use for which such VisEn Product is sold by VisEn as set forth in the Terms or user documentation; or (d) Buyer's continued use of any VisEn Product subsequent to Buyer's receipt of notice of an Infringement Claim.  The foregoing states the entire liability of VisEn, and the exclusive remedy of buyer, for any infringement or claimed infringement of any patent or other intellectual property right, or misappropriation or claimed misappropriation of any trade secret, by any and all VisEn products or any part thereof or use thereof.

Limitation of Liability.  To the maximum extent permitted by applicable law, in no event shall VisEn be liable, whether in contract, tort (including without limitation, negligence), warranty, or under any statute or on any other basis for: (i) special, incidental, indirect, punitive, multiple or consequential damages sustained by buyer or any other person or entity arising out of, resulting from or relating to the manufacture or sale of products, VisEn's performance or failure to perform its obligations, the possession or use of any product, or the performance by VisEn of any services, whether or not foreseeable and whether or not VisEn is advised of the possibility of such damages, including without limitation damages arising out of, resulting from or related to loss of use, loss of data, downtime, loss of revenue, profits, goodwill, or business or other financial loss, and (ii) except for VisEn's indemnification obligations under section 11, aggregate damages for any and all claims arising out of, resulting from or relating to the manufacture or sale of products, VisEn performance or failure to perform its obligations, the possession or use of any product, or the performance by VisEn of any services, in excess of the price received by VisEn from buyer for the affected product or service.

Export Laws.  Buyer agrees to comply with all export laws and restrictions and regulations of the United States Department of Commerce or other United States or other sovereign agency or authority, and not to export, or allow the export or re-export to any country, or release to a national of a restricted country, of any technical data or any direct product thereof in violation of any such restrictions, laws or regulations, or unless and until all required licenses and authorizations are obtained to the countries specified in the applicable U.S. Export Administration Regulations (or any successor supplement or regulations).

Covenant Not to Enforce or Sue.  Buyer hereby agrees that it shall not assert or enforce in any manner (including, in any action, suit, arbitration or other proceeding) any intellectual property rights that directly relate to or that are developed as a result of Buyer's access to the Products and that are owned, licensed or otherwise controlled by Buyer, against VisEn or any of its sublicensees, distributors or contractors or any of the customers of VisEn or its sublicensees, distributors or contractors, for the purpose of (i) restraining, limiting or prohibiting the manufacture, use, sale or other commercialization of any of the Products by VisEn or any other person for any and all uses, fields of use, methods of use or applications or (ii) seeking monetary damages or other compensation from VisEn or any other person for any such manufacture, use, sale or other commercialization.  The provisions of this Section 14 shall be binding and enforceable against Buyer's direct and indirect parent companies, subsidiaries, affiliates, sublicensees, successors and assigns and shall inure to the benefit of any successor or assignee of Buyer, regardless of whether such succession or assignment is voluntary or by operation of law.

No Grant of Rights. Nothing in this Agreement shall be interpreted expressly or impliedly as: (i) granting either Buyer or VisEn any license or other rights except as expressly set out in this Agreement, including, without limitation, the right to be supplied with, or to manufacture or to have manufactured, any Products by a third party; or (ii) granting Buyer the right to resell or convey in any manner the Products to any third party anywhere in the world.

Choice of Law.  Any contract between VisEn and Buyer relating to Product(s), including the Terms, and any disputes relating thereto, shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, U.S.A., excluding its choice of law provisions, the UN Convention on Contracts for the International Sale of Goods.

Publicity.  Buyer agrees that VisEn may publicly identify Buyer as a user of its Products.  VisEn and Buyer agree not to disclose any financial terms of the Terms to any third party without the prior written consent of the other party, except as required by securities or other applicable laws or in connection with obtaining financing.

Miscellaneous.  The waiver of performance of any of the terms or conditions herein shall not be construed as a waiver of subsequent obligations to perform the same or additional terms and conditions.  Should any provision of the Terms be held invalid or void for any reason, the remaining provisions shall remain in full force and effect.  The headings are for convenience only and shall not be used in construing the Terms.