VisEn Standard Terms and Conditions of Sale

2. Binding Contract. These standard terms and conditions below, together with VisEn's Quotation, any applicable label, license or other written conditions of use 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 (Products) and along with all riders and attachments hereto, constitute the entire agreement and understanding of the purchaser of the Products (Buyer) and VisEn Medical (VisEn). If Buyer's purchase order contains provisions inconsistent with or in addition to the provisions hereof, the Terms shall prevail. 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 by any terms or conditions set forth in Buyer's purchase order or any other document or instrument delivered by Buyer to VisEn.
5. Price. The price for any Product shall be the price stated in VisEn's Quotation (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.
8. 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.
11. Payment Terms. Payment Terms for VisEn for Products that are either instruments or hardware shall be 50% of the total payment due upfront and paid net 30 days from the date of initial VisEn invoice, and 50% of the payment due after installation of such instruments or hardware (or delivery if no installation is required) and net 30 days from the date of invoice. Payment Terms for all Products that are reagents, kits or consumables (collectively, "Consumables") 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 a check in US dollars, drawn on a US bank, or by bank transfer to the address on the invoice.
14. 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.
17. Cancellation and Deferral. Unless otherwise stated in VisEn's Quotation, Buyer may defer the shipment date one time for up to 60 days for instruments and other hardware, and 30 days for reagents, consumables and other tangible products, by giving written notice to VisEn at least 30 days before the scheduled shipment date for instruments and other hardware, and at least 10 days before the scheduled shipment date for other products. If a purchase order is cancelled by Buyer, Buyer will be liable for a 30% re-stocking fee.
20. 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 FOR DAMAGED OR MISSING PRODUCT, AND, EXCEPT FOR EXPRESS WARRANTY RIGHTS, FOR DEFECTIVE PRODUCT.
23. Warranty. VisEn makes only those warranties with respect to Product expressly identified as "warranties" and set forth in VisEn's current operating manual or catalog, or in a specific written warranty included with and covering Product, if any. ANY PRODUCT NOT COVERED BY A WRITTEN WARRANTY IS SOLD "AS IS. Visen does not warrant or guarantee that its products are merchantable or satisfactory for any particular purpose and there are no warranties, express or implied, to such effect. VisEn will not be liable for any incidental, consequential or contingent damages involving their use. Our responsibility is limited only to replacement of items ordered.
26. Prohibited Activities. Buyer shall not engage in any of the following activities, all of which are hereby strictly prohibited and forbidden: (i) resell, distribute, supply, license or otherwise commercialize any of the Products; (ii) any 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) reverse engineer any of the Products; (iv) decompile any software included in any of the Products; (v) any use of any of the Products in any research and development program or activities for the purpose of discovering, creating or inventing improvements 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) any use other than use of the Products by the 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.
29. Research and Development Use Only and Validation. Except as provided by written contracts, 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.
32. 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 Product then available for delivery fairly among its various customers in such manner as VisEn may consider equitable.
35. Intellectual Property Infringement Indemnity. If any Product or any portion thereof is subject to a suit or other legal proceeding claiming that the Product infringes a third party's intellectual property right, or in VisEn's opinion is (are) likely to become subject of such a claim, VisEn shall, at its option, have the right to either: (i) procure for Buyer the right to continue using the Product; or (ii) replace or modify the Product so that it becomes non-infringing; or (iii) require Buyer to return the Product and upon return, refund to Buyer the price actually paid by Buyer for the Product, less a reasonable amount for use, damage or obsolescence; or (iv) substitute for the infringing Product other suitable, non-infringing products. VisEn shall have no liability or obligation hereunder for any infringement based upon: (i) the use of Product in combination with any product not provided by VisEn or intended for use with Product, or based upon any modification to Product made by Buyer or a third party, if such claim would not have occurred but for such combination or modification; (ii) any modification, marking or branding applied to Product by VisEn at the request of the Buyer; or (iii) for any use of Product other than for the express use for which such Product is sold by VisEn as set forth in the Terms. THE FOREGOING STATES THE ENTIRE LIABILITY OF VISEN, AND THE EXCLUSIVE REMEDY OF BUYER, FOR ANY INFRINGEMENT OR CLAIMED INFRINGEMENT OF PATENT, COPYRIGHT, TRADE SECRET OR ANY OTHER INTELLECTUAL PROPERTY RIGHT BY PRODUCT OR ANY PART THEREOF OR USE THEREOF. Buyer must notify VisEn in writing of any claim or any action, suit or proceeding by a third party against Buyer to the extent that such claim, action, suit or proceeding is based on an allegation that the use of Product by Buyer, or the manufacture and sale of Product by VisEn, infringes any United States or foreign patent, copyright, trademark or other intellectual property right of such third party.
38. Limitation of Liability. IN NO EVENT SHALL VISEN BE LIABLE, WHETHER IN CONTRACT, TORT, WARRANTY, OR UNDER ANY STATUTE OR ON ANY OTHER BASIS FOR SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, MULTIPLE OR CONSEQUENTIAL DAMAGES SUSTAINED BY BUYER OR ANY OTHER PERSON OR ENTITY ARISING OUT OF VISEN'S PERFORMANCE OR FAILURE TO PERFORM ITS OBLIGATIONS RELATING TO THE PURCHASE OF PRODUCTS OR PERFORMANCE OF SERVICES, 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 FROM OR RELATED TO LOSS OF USE, LOSS OF DATA, DOWNTIME, OR FOR LOSS OF REVENUE, PROFITS, GOODWILL, OR BUSINESS OR OTHER FINANCIAL LOSS.
41. 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 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).
44. Intellectual Property Rights. All know-how, trade secrets, intellectual property, information, design, documentation and drawings, as well as all trademarks, service marks, trade names, trade dress, slogans, logos, patent rights, copyrights and other similar proprietary rights or markings (whether or not registered) in respect of the Products, any improvements thereto, or any equivalent modifications or related applications thereof, shall be the sole property of VisEn, and Buyer hereby agrees to assign to VisEn all of Buyer's right, title and interest to any and all of such rights covered by this Section 15. VisEn hereby grants to Buyer a limited right and license to use all of such know-how, trade secrets, intellectual property, information, design, documentation, drawings and software for the sole purpose of using the Products as contemplated by VisEn and these Terms.
47. 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 16 shall be binding and enforceable against Buyer's direct and indirect parent companies, subsidiaries, affiliates, sublicensees, successors and assigns. The provisions of the foregoing sentence shall apply to any successor or assignee of Buyer, regardless of whether such succession or assignment is voluntary or by operation of law.
50.

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.
53.

Sole Terms. The Terms constitute the complete, exclusive and entire agreement between VisEn and Buyer with respect to purchases of Product (unless other terms and conditions are expressly designated to be applicable in writing), and VisEn's offer to sell is expressly limited to the Terms. The Terms shall take precedence over and supercede 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. Buyer's submission of a purchase order or other document or instrument regarding the purchase of Product in response to VisEn's Quotation shall be deemed acceptance of these Terms to the exclusion of any other terms and conditions.
56. Choice of Law. Any contract between VisEn and Buyer relating to Product, 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 both its choice of law provisions and the UN Convention on Contracts for the International Sale of Goods.
59. 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 this agreement to any third-party without the prior written consent of the other party, except as required by securities or other applicable laws.