Next-Generation Automated Refraction and Visual Field Exam Headset

Pre-order the XO Exam™ System

Xenon Opthalmics XO Exam System Comprehensive Automated Refraction and Visual Field Exams in One Medical-Grade Headset

Pre-orders are now open for the XO Exam™ System. Simply complete the form and payment to secure your units today. If you have any questions, please contact us at [email protected].

XO Exam™ System Features and Specifications

Includes XO Exam™ Headset, (2) Rechargeable Batteries, XO Exam™ App, Tablet (128 GB Storage), and Wireless Remote.

  • Digital Phoropter
  • Wavefront Aberrometry
  • Retinoscopy
  • Technical Specifications
  • Liquid Lens | Increments: 0.1D, 0.125D, 0.25D
  • Spherical Power Range -12
  • Diopters to +12 Diopters
  • Cylinder Power Range: -6
  • Diopter ~ 0
  • Cylinder Axis: 0 ~ 180 Degrees
  • Working Distance: 3mm to 30mm
  • Automatic Pupil Measurement
  • Interpupillary Distance (IPD) Range: 42 – 78mm
  • Custom Eye Tracking and Gaze Tracking
  • Visual Field
  • Visual Acuity
  • Color Vision Deficiency (CVD)
  • Confrontation Visual Field
  • Binocular Humphrey Esterman Visual Field (EVFT)
  • Contrast Sensitivity
  • Extraocular Motility (EOM)
  • Technical Specifications
  • Test Pattern (10-2, 24-2, 30-2, 24-2C)
  • Total Test Points: 54-198
  • Visual Field Eye Live Images
  • Stimulus Goldmann: I, II, III, IV, V
  • Visual Field Testing Distance: 300 cm to Infinity | Stimulus Duration: 200ms
  • T-24, T-10 (Threshold Adult), S (Suprathreshold Adult), TP-24, TP-10 (Threshold Pediatric)
  • Landolt C Visual Acuity Near,
    Landolt C Visual Acuity Distance, Extraocular Muscles (EOM), Confrontation Field (CF)
  • Accommodates In-Person or Remote Subjective and Objective Exams (via Secure Wireless Connection)
  • Live Patient Audio, Video, Progress, and Analysis
  • HIPPA & BAA Compliant
  • Does Not Require Trial Lenses or Glasses
  • Does Not Require a Technician in Attendance at All Times
  • Does Not Require Specific Furniture
  • No Cost Per Exam
  • Data Export File Formats: PDF, JPEG, DICOM, PNG
  • Cloud Computing (Subscription-Based SaaS Data Analytics Software)
  • Qi Wireless Charging Compatible
  • Bluetooth Communications via
  • 256-Bit Encryption

Pre-order Form

Please complete and submit the form below and your deposit payment to secure your pre-order of the XO Exam™ System.

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Early Purchase Agreement

Please carefully read the terms & condition below
  1. Applicability; Entire Agreement.
    1. These terms and conditions of purchase entitled “Early Purchase Agreement” (these “Terms”) by the party identified above (“Buyer”) from Xenon Ophthalmics Inc., a Delaware corporation (“Seller”), effective as of the first date set forth above (the “Effective Date”), are the terms which govern the purchase of the goods (“Goods”) and services relating to Seller’s proprietary intellectual property and software for which Seller is licensing and providing access to Buyer (“Services”). In addition, upon being provided to Buyer, the Services will be subject to the terms and conditions by which the Services are being licensed by Buyer in accordance with the Terms and Condition of Services that is set forth on Seller’s website, as may be updated from time to time (the “Licensing Agreement”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods and Services covered hereby, the terms and conditions of said contract (including without limitation, with respect to the Services, the Licensing Agreement) shall prevail to the extent they are inconsistent with these Terms.
    2. The accompanying purchase order annexed hereto as Exhibit A (the “Purchase Order”) and these Terms (collectively, this “Agreement”), together with respect to the Services, the Licensing Agreement, comprise the entire agreement between the parties relating to the purchase of the Goods and Services, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Seller’s general terms and conditions of sale, provided, that Seller may submit updated terms and conditions of sale to Buyer via e-mail at any time prior to delivery, which will be deemed an amendment and novation of the Terms, unless rejected by Buyer in writing (via e-mail to Seller) within ten (10) business days of receipt. This Agreement expressly limits Seller’s acceptance to the terms of this Agreement. Deposit of an initial payment relating to the Purchase Order constitutes acceptance of these Terms by Buyer; use of the Services by Buyer constitutes acceptance of the Licensing Agreement by Buyer, and acceptance of such deposit of initial payment by Seller constitutes confirmation of acceptance of this Agreement by Seller.
  2. Delivery of Goods and Performance of Services.
    1. Seller shall deliver the Goods on or before the date specified in the Purchase Order or as otherwise agreed in writing by the parties (the “Delivery Date”). If no Delivery Date is specified in the Purchase Order, the default Delivery Date will be Monday, April 3, 2025. If Seller fails to deliver the Goods on the Delivery Date, Buyer may terminate this Agreement immediately by providing written notice to Seller and Seller shall promptly return the deposit received by Seller to Buyer, less any third-party transaction processing or administrative costs and fees actually assessed or incurred by Seller, if any, in receiving or sending the deposit. In such event of breach of Seller’s performance to deliver the Goods on or before the Delivery Date, Buyer agrees and acknowledge that Buyer’s sole and exclusive remedy will be as set forth in this Section 2(b).
    2. Seller shall deliver all Goods to the address specified in the Purchase Order (the “Delivery Point”) during normal business hours, which will be deemed 9 am to 5 pm on Mondays through Friday, excepting any federally recognized holidays.
    3. Seller shall provide the Services to Buyer as described and in accordance with the schedule set forth on the reverse side of these Terms and in accordance with the terms and conditions set forth in these Terms.
    4. Buyer acknowledges that the Delivery Date is an estimated Delivery Date and that Seller has the right to extend the Delivery Date upon providing thirty (30) days’ prior written notice to Buyer, but that in the event that the Goods are not delivered on or before the original Delivery Date, Buyer will have the right to terminate the Agreement and receive a return of substantially all of Buyer’s deposit in accordance with, and qualified by, the second sentence of Section 2(a).
  3. Returns and Rejected Goods: Procedure and Conditions. Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming to the warranties set forth in Section 13(a) (“Defective”) within thirty (30) days of receipt of the Goods. Any rejected Goods shall be returned to Seller at Buyer’s sole risk and expense with the original packaging and packing slip relating to such Goods. Subject to Buyer not being in breach of this Agreement, including without limitation, being in compliance with its obligations pursuant to Section 10(a) and not being in breach of the Warranty conditions set forth in Section 13(c), Seller will accept returns for any reason or no reason within thirty (30) days of delivery of the Goods, provided, that Buyer must provide proof of purchase and ship the Goods at its own expense. Notwithstanding anything to the contrary, to initiate a return, goods must be returned in its original packaging, and must be in saleable condition and undamaged. Risk of damage, theft or loss remains with Buyer upon return of Goods untiled received by Seller. Products that do not meet these criteria will not be considered for returns.
  4. Remedies for Return or Rejection of Nonconforming Goods. If Buyer rejects the Goods, Buyer’s sole remedies are limited to one of the following rights, effective upon written notice to Seller, to: (a) rescind this Agreement in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Seller shall replace the nonconforming or shipped by Seller to Buyer pursuant to this Agreement that are Defective (“Defective Goods”). Any inspection or other action by the Buyer under this Section 4 shall not reduce or otherwise affect Seller’s obligations under the Agreement, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.
  5. Shipping Terms. Delivery to Buyer shall be made to the Delivery Point in accordance with the terms on the face of this Agreement, provided, that, notwithstanding anything to the contrary in these Terms or the Purchase Order, if the Delivery Point is outside of the continental United States, all deliveries will be made FOB origin, freight collect.
  6. Title and Risk of Loss. With respect to initial delivery of the Goods to Buyer, Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point, provided, that, notwithstanding anything to the contrary in these Terms or the Purchase Order, if the Delivery Point is outside of the continental United States, all deliveries will be made FOB origin, freight collect so that risk of loss passes to Buyer upon shipment of Goods from the origin and all freight, shipping or other transportation costs are to be solely at Buyer’s expense.
  7. The price of the Goods and Services is the price stated in the Purchase Order together with the applicable payment plan (of which at least two options are annexed hereto as Exhibit B) that is identified in the Purchase Order (including the total aggregate price for Year 1 and Year 2, the “Price”), provided, that if no payment plan is identified in the Purchase Order, the amount of the initial deposit received and accepted by Seller shall be determinative as to which payment plan was accepted and agreed by the parties. If no price is included in the Purchase Order, unless otherwise agreed in writing between Buyer and Seller, the Price shall be the price set out in Seller’s published price list in force as of Delivery Date. Unless otherwise specified in the Purchase Order, the Price includes all packaging, transportation costs to the Delivery Point, except with respect to any Delivery Point outside of the continental United States, in which case the Buyer will be solely responsible for transportation costs to the Delivery Point, insurance, customs duties and any other fees and applicable taxes, including any sales, use or excise tax.
  8. Payment Terms.
    1. Seller shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with these Terms. Buyer shall pay all properly invoiced amounts due to Seller within thirty (30) days after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith. All payments hereunder must be in US dollars and made by wire transfer, credit card or any other form of payment accepted by and agreed to by Buyer.
    2. Set-off Right.
      1. Seller’s Set-off Right. Without prejudice to any other right or remedy it may have, Seller reserves the right to set off at any time any amount owing to it by Buyer against any amount payable by Seller to Buyer under this Agreement.
      2. No Buyer’s Set-off Right. Buyer shall not, and acknowledges that it will have no right, under this Agreement, any Purchase Order, any other agreement, document, or law, to withhold, offset, recoup or debit any amounts owed (or to become due and owing) to Seller or any of its affiliates, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by Seller or Seller’s affiliates, whether relating to Seller’s or its affiliates’ breach or non-performance of this Agreement, any Purchase Order, any other agreement between (a) Buyer or any of its affiliates and (b) Seller or any of its affiliates, or otherwise.
    3. Disputes and Late Payment. In the event of a payment dispute, Buyer shall deliver a written statement to Seller no later than five (5) business days prior to the date payment is due on the disputed invoice listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed are deemed accepted and must be paid, notwithstanding disputes on other items, within the period set forth in this Section 8. The parties shall seek to resolve all such disputes expeditiously and in good faith. Without limiting any other remedies available at law or equity, under this Agreement or otherwise available to Seller, in the event of invoiced and unpaid amounts due but not paid, other than with respect to any disputes successfully disputed by Buyer and resolved with Seller, Seller (i) may suspend at any time any and all representations, warranties and/or obligations to perform any acts required under this Agreement, including delivery or use of Goods or Services by Buyer and to the fullest extent permitted by applicable law, storage of any data by Seller, if any; (ii) reject any Purchase Order; (iii) upon notice to Buyer, may impose on Buyer interest on any disputed amounts of financial obligations owed to Seller, so such disputed amounts will accrue interest at an annual rate of the prime rate as published in The Wall Street Journal (or any successor publication) plus eight (8%) percent, calculated daily and compounded monthly, from the earlier of (x) the date of Buyer’s breach or (y) the date the dispute first arose, which will increase monthly with respect to any unpaid sums at an absolute annual rate of one (1%) percent per month up to the maximum legal rate permissible under applicable law; (iv) Seller may terminate or reduce any discounts, rebates, or other special pricing applied to any of the Goods previously provided to Buyer, and/or (v) terminate this Agreement and/or the Purchase Order, and in each case of subclauses (i) through (v), Buyer hereby waives any and all liabilities or claims to be made, and agrees not to assert any claims, against Seller or its affiliates, representatives or agents in connection with the exercise of such remedies set forth in this Section 8 or otherwise pursuant to this Agreement.
    4. Purchase Money Security Interest. Buyer hereby grants Seller a security interest in all Goods purchased hereunder (including Goods, non-conforming Goods, potentially Defective Goods and Defective Goods) and the proceeds therefrom to secure Buyer’s payment obligations under this Agreement. The buyer acknowledges that the security interest granted under this Section 8.7 is a purchase money security interest under Delaware law. Seller may file a financing statement for such security interest and Buyer shall execute any such statements or other documentation necessary to perfect Seller’s security interest in such Goods.
  9. Seller’s Compliance with Law. Seller shall before the date on which the Services are to start, obtain, and at all times during the term of this Agreement, maintain, all reasonably necessary licenses and consents and comply with all relevant laws applicable to the provision of the Services.
  10. Buyer’s Obligations.
    1. and Services provided by Seller.
    2. Buyer will only use the Goods and Services for their intended authorized purposes in a safe and prudent manner, acting reasonably with reasonable care and in a manner consistent with industry practice, complying with any instructions, guidelines, limitations, precautions, or warnings issued by Seller from time to time relating to the Goods or Services, and in a manner intended to optimize the safety of end-users of the Goods and Services.
    3. Buyer will respect the intellectual property rights of Seller and not reverse-engineer, nor otherwise seek to circumvent, abrogate, or seek to infringe upon, Seller’s intellectual property rights (whether owned or licensed by Seller) relating to any Goods or Services provided by Seller.
    4. Without Seller’s explicit prior consent, Buyer will not modify, tweak, supplement or otherwise seek to materially enhance, remove or integrate with any third-party service or intellectual property that is not owned or licensed by Seller, the Goods or Services provided by Seller. In no event shall Buyer reconstruct, repair, alter or replace any Goods or Services, in whole or in part, either itself or by or through any third party.
    5. In using the Services, Buyer will comply with all obligations imposed by the Licensing Agreement.
    6. Buyer will maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement and to run its business or to engage in any business activities of Buyer.
    7. Once the Goods are purchased by Buyer, Buyer will promptly and reasonably cooperate with Seller to: (i) organize an implementation plan, which will include training provided by Seller on proper use of the Goods and/or Services; (ii) to arrange at all times for at least one person at Buyer’s practice at Buyer’s practice and offices, who must be assigned as key contact to be trained in the planning, training, operation and testing abilities of the Goods and/or Services as well as the procedures and outcomes expected in the practice; (iii) to arrange for, and to ensure that, Seller (including such contact person) periodically contact Seller on a regular and ongoing basis to review and monitor outcomes and to maximize utilization; and (iv) to provide clinical results and data to Seller in compliance with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), to Seller’s reasonable satisfaction, to comply any HIPAA-compliant periodic requests from Seller relating to clinical results and data for statistical evaluation.
  11. Intellectual Property Rights.
    1. Certain Defined Terms.
      1. Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to (i) Patents; (ii) Trademarks; (iii) internet domain names, whether or not Trademarks, registered by any authorized private registrar or Governmental Authority, web addresses, web pages, websites, and URLs; (iv) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software, and firmware, [application programming interfaces, architecture, files, records, schematics,] data, data files, and databases and other specifications and documentation; (v) Trade Secrets; (vi) semiconductor chips, mask works, and the like; and (vii) all industrial and other intellectual property rights, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the laws of any jurisdiction throughout in any part of the world.
      2. Governmental Authority” means any federal, state, local, or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations, or orders of such organization or authority have the force of law), or any arbitrator, court, or tribunal of competent jurisdiction.
  • “Patents” means all patents (including all reissues, divisional, Provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions, and extensions thereof), patent applications, and other patent rights and any other Governmental Authority-issued indicia of invention ownership (including inventor’s certificates, petty patents, and patent utility models).
  1. “Trademarks” means all rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names, and domain names, and other similar designations of source, sponsorship, association, or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals and extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world.
  2. “Trade Secrets” means all inventions, discoveries, trade secrets, business and technical information, and know-how, databases, data collections, patent disclosures, and other confidential and proprietary information and all rights therein.
  1. Buyer acknowledges and agrees that:
    1. any and all Seller’s Intellectual Property Rights are the sole and exclusive property of Seller or its licensors;
    2. Buyer shall not acquire any ownership interest in any of Seller’s Intellectual Property Rights under this Agreement or the Licensing Agreement;
  • any goodwill derived from the use by Buyer of Seller’s Intellectual Property Rights inures to the benefit of Seller or its licensors, as the case may be;
  1. if Buyer acquires any Intellectual Property Rights, rights in or relating to any Goods or Services (including any rights in any Trademarks, derivative works, or patent improvements relating thereto) by operation of law, or otherwise, such rights are deemed and are hereby irrevocably assigned to Seller or its licensors, as the case may be, without further action by either of the parties; and
  2. Buyer shall use Seller’s Intellectual Property Rights solely for purposes of using the Goods or Services under this Agreement and only in accordance with this Agreement or the License Agreement and the instructions of Seller.
  1. Prohibited Acts. Buyer shall not:
    1. take any action that might interfere with any of Seller’s rights in or to Seller’s Intellectual Property Rights, including Seller’s ownership or exercise thereof;
    2. challenge any right, title, or interest of Seller in or to Seller’s Intellectual Property Rights;
  • make any claim or take any action adverse to Seller’s ownership of Seller’s Intellectual Property Rights;
  1. register or apply for registrations, anywhere in the world, for Seller’s Trademarks or any other Trademark that is similar to Seller’s Trademarks or that incorporates Seller’s Trademarks in whole or in confusingly similar part;
  2. use any mark, anywhere that is confusingly similar to Seller’s Trademarks in whole or in confusingly similar part;
  3. engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Goods, Services or any Seller’s Trademarks;
  • misappropriate any of Seller’s Trademarks for use as a domain name without prior written consent from Seller; or
  • alter, obscure, or remove any Seller’s Trademarks, or Trademark or copyright notices or any other proprietary rights notices placed on the Goods, Services, marketing materials, or other materials that Seller may provide.
  1. Buyer must promptly reimburse Seller (in no event later than within ten (10) business days of Seller’s written notice (including reasonable back-up documentation) thereof), for any attorney’s or collection fees, disbursements and expenses, including any and all costs incurred by Seller in any action, proceeding or dispute relating to the enforcement of this Agreement, that Buyer incurs as a result of Seller’s failure to make timely payments required under, or relating to Seller’s breach of any provision or obligation in, this Agreement.
    1. Warranties relating to Goods. Seller warrants to Buyer that for a period of twelve- (12-) months from the Delivery Date (unless Buyer has purchased and maintained payment in full for an extended annual warranty, the “Warranty Period”, as such period may be extended by Buyer for such annual periods paid for by Buyer for an extended warranty), all Goods will:
    2. be free from any defects in workmanship, material, and design;
    3. conform to applicable specifications explicitly specified by Seller’s warranty policy (the “Warranty Policy”) on Seller’s website; and not intentionally infringe or misappropriate any third party’s patent or other intellectual property rights.
  3. These warranties survive any delivery, inspection, acceptance, or payment of or for the Goods by Buyer;
  4. NO IMPLIED WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE WARRANTY POLICY OR OTHERWISE EXPLICITLY SET FORTH IN THIS AGREEMENT, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER PERSON ON SELLER’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THE WARRANTY POLICY OR THIS AGREEMENT.
    1. Limitations on Warranties. Subject to applicable law, notwithstanding anything to the contrary, the warranties under this Section 13 and the Warranty Policy do not apply and will be deemed for all purposes to be null and void, where the Goods or Services have:
      1. been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental condition, use without the appropriate and updated software, use of the device with software that has been compromised by any unauthorized cybersecurity intrusions or use contrary to any instructions or parameters issued by Seller (as may be updated by Seller from time to time);
      2. with respect to the Goods, incurred damage due to transportation following delivery to Buyer;
  • with respect to the Goods, incurred damage due failure to follow the product instructions or to perform any preventive maintenance;
  1. with respect to the Goods, incurred damage due to external causes such as accidents, abuse, or other actions or events beyond Seller’s reasonable control;
  2. been used in an unauthorized manner not specifically approved for use by Seller or any governmental authority;
  3. been reconstructed, repaired, modified or altered by any person other than Seller or its authorized Representative;
  • not been paid in full on a timely basis with all payment obligations met by Buyer under this Agreement and all relevant Purchase Orders;
  • been obtained, licensed, borrowed, leased, subleased, assigned, transferred in whole or in part to any person other than Buyer or obtained by Buyer from any party other than Seller or Seller’s authorized distributor, if any; or
  1. been used with any third party product or service, hardware, software, or product or service that has not been previously approved in writing by Seller (and remains in effect).

This Section 13 and the Warranty Policy do not apply to damage to Goods that would constitute normal wear and tear.

  1. Limited to Buyer’s Benefit. Subject to applicable law, the foregoing warranties and the Warranty Policy are made only for the benefit of Buyer and are not assignable under any circumstances without the explicit prior written consent of Buyer.
  2. Statute of Limitations. Any applicable statute of limitations runs from earlier of (x) the date of Buyer’s purchase of the Goods or Services or (y) the date of delivery of the Goods or Services, with the foregoing warranties. The buyer has no right to return for repair, replacement, credit or refund any Goods except as set forth explicitly in this Agreement or under the Warranty Policy.
  3. Procedure for Defective Goods. Buyer’s remedy under this Section 13 is conditioned upon Buyer’s compliance with its obligations under Section 13(f)(i) and Section 13(f)(ii) below. During the Warranty Period, with respect to any allegedly Defective Goods:
    1. Buyer shall notify Seller, in writing, of any alleged claim or defect within ten (10) business days from the date Buyer discovers, or upon reasonable inspection should have discovered, such alleged claim or defect (but in any event before the expiration of the applicable Warranty Period;
    2. Buyer will be required to submit proof of purchase to Seller. Proof of purchase is required for any successful claim under this Warranty.
  • Buyer shall ship, at its expense and risk of loss, such allegedly Defective Goods, together with proof of purchase, to Seller’s facility located at such address provided by Seller to Buyer in writing, for inspection and testing by Seller;
  1. If Seller’s inspection and testing reveals, to Seller’s reasonable satisfaction, that such Goods are Defective and any such defect has not been caused or contributed to by any of the factors described under Section 13(c), Seller shall in its sole discretion, and at its expense (subject to Section 13(f)(ii) and Section 13(f)(iv)), (i) repair or replace such Defective Goods, or (ii) credit or refund the Price of such Defective Goods less any applicable discounts, rebates or credits;
  2. If Seller exercises its option to repair or replace, Seller shall, after receiving Buyer’s shipment of such Defective Goods, ship to Buyer, at Seller’s expense, the repaired or replaced Goods to a location designated by Seller that is inside the continental United States.
  3. Buyer’s Exclusive Remedy for Defective Goods or Services. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THIS SECTION 13 SETS FORTH BUYER’S SOLE AND EXCLUSIVE REMEDIES FOR DEFECTIVE GOODS OR SERVICES.
  • Withdrawal of Goods. If Seller determines that any Goods and/or Services sold to Buyer may be Defective, at Seller’s request, Buyer shall withdraw all similar Goods and/or Services from sale and, at Seller’s option, either return such Goods to Seller in accordance with Seller’s instructions or destroy the Goods and provide Seller with written certification of such destruction. Notwithstanding the limitations of Section 13(f), if Buyer returns all withdrawn Goods or destroys all withdrawn Goods and provides Seller with written certification of such destruction within ten (10) business days following Seller’s withdrawal request, in either case consistent with Seller’s instructions, Seller shall (a) repair or replace all such returned Goods or (b) replace such destroyed Goods, in either case pursuant to the terms of Section 13(f)(iv), Buyer’s remedy hereunder is not available if any such defect has been caused or contributed to by any of the factors described under Section 13(c). THIS SECTION 13(h) SETS FORTH BUYER’S SOLE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY GOODS THAT ARE WITHDRAWN PURSUANT TO THIS SECTION 13(h).
  1. Buyer shall promptly defend, indemnify and hold harmless Seller and Seller’s parent company, subsidiaries, affiliates, successors or assigns and each respective managers, members, directors, officers, stockholders and employees, consultants and agents (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) (A) arising out of or occurring in connection with Buyer’s breach of (x) this Agreement, (y) the License Agreement or (z) any other written agreement with Seller or any of its affiliates, or (B) in the event that any Indemnitee becomes involved in any capacity (whether as a witness, a person of interest, a person providing testimony or a party) in any action, proceeding or investigation brought by or against or relating to, Buyer or any Indemnitee, in connection with or as a result of either (x) the Goods or Services provided by Buyer pursuant to the Agreement, (y) Seller’s performance of its obligations under this Agreement, other than, in each case with respect to subclauses (A) or (B), with respect to any Losses that are finally adjudicated by a court with jurisdiction over such matters to be primarily and directly arising out of Seller’s gross negligence, willful misconduct, intentional fraud or breach of the Terms. Promptly following written demand together with reasonable documentation of expenses incurred by any Indemnitee, Buyer will reimburse each Indemnitee in a timely manner for its reasonable legal fees and all other expenses (including the cost of any investigation and preparation) incurred in connection therewith except to the extent that any such any Losses that are finally adjudicated by a court with jurisdiction over such matters to be primarily and directly arising out of an Indemnitee’s gross negligence, willful misconduct, intentional fraud or breach of the Terms (in which case such Indemnitee will promptly reimburse Buyer for any and all such advancement of expenses). Buyer may not enter into any settlement relating to any such indemnification in any manner that may be reasonably deemed detrimental to an Indemnitee’s interests or admitting any fault or responsibility, without such Indemnitee’s and Seller’s prior written consent.
  2. Intellectual Property Indemnification. Seller shall, at its expense, defend, indemnify and hold harmless Buyer against any and all Losses that are finally adjudicated by a court with jurisdiction over such matters to be arising primarily and directly out of Buyer’s or any of its assignees’, beneficiaries’ or agents’ (to the extent such persons are authorized and permitted under this Agreement or the License Agreement) use or possession, of the Goods or use of the Services infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party provided, that, (1) Buyer has notified Seller promptly in writing of any such claim, damage or liability; (2) Buyer has given Seller sole control of the defense thereof and any related settlement negotiations; and (3) Buyer reasonably cooperates with Seller in such defense (including without limitation, at its own cost and expense, by making available to Seller all documents and information in Buyer’s possession or control that are relevant to the infringement or misappropriation claims, and by making Buyer’s personnel available to testify or consult with Seller or its attorneys in connection with such defense). Seller’s indemnification obligations shall not apply to the extent a third party claim is arising out of or relating to any: (i) Buyer’s (or any agent of Buyer’s or any third party’s) misuse or modification of such Goods or Services; (ii) incorporation of intellectual property owned or licensed by Buyer into any Seller intellectual property, Goods or Services; (iii) Buyer’s failure to timely and properly implement any modifications, upgrades, replacements or enhancements made available to Buyer; (iv) Buyer’s use any Goods or Services in any manner that does not materially conform with usage instructions, guidelines, specifications of Seller or otherwise breaches or is outside the scope of the Seller’s warranties set forth in Section 13 or the Warranty Policy; (v) Buyer’s use any Goods or Services in combination with any product, materials, equipment or information not owned, developed by, or explicitly and specifically authorized for such use, manner or specified purpose by Seller with such Goods or Services, or not supplied by Seller, if the infringement would have been avoided by use of the Goods or Services not so combined; or (vi) Buyer’s marketing, advertising, promotion or sale of any product containing the Goods or Services. If any such Goods or Services is alleged to, or in Seller’s opinion is likely to be held to, constitute an infringing product, Seller shall at its expense and option either (A) procure the right for Buyer to continue using it, (B) replace it with a non-infringing equivalent, (C) modify it to make it non-infringing or (D) accept return of the deliverable item and refund to Buyer the fees paid for such Goods or Services. Promptly following written demand together with reasonable documentation of expenses incurred by Buyer, Seller will reimburse Buyer in a timely manner for its reasonable legal fees and all other expenses (including the cost of any investigation and preparation) incurred in connection therewith except to the extent that any such any Losses that are finally adjudicated by a court with jurisdiction over such matters to be primarily and directly arising out of Buyer’s gross negligence, willful misconduct, intentional fraud or breach of the Terms (in which case Buyer will promptly reimburse Seller for any and all such advancement of expenses). Seller may not enter into any settlement relating to any such indemnification in any manner that may be reasonably deemed detrimental to Buyer’s interests or admitting any fault or responsibility, without such Buyer’s prior written consent. If the Goods or Services, or any part of the Goods or Services, becomes, or in Seller’s opinion is likely to become, subject to a claim or a potential claim of a third party that qualifies for intellectual property indemnification coverage under this Section 15, Seller shall, at its sole option and expense, notify Buyer in writing to cease using all or a part of the Goods or Services, in which case Buyer shall immediately cease all such use of such Goods and/or Services on receipt of Seller’s notice. THIS SECTION 15 SETS FORTH BUYER’S SOLE AND EXCLUSIVE REMEDIES AND BUYER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT (AND THE LICENSE AGREEMENT) OR ANY SUBJECT MATTER HEREOF (INCLUDING THE GOODS, SOFTWARE OR SERVICES PROVIDED BY SELLER) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.
  3. NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES OR QUANTUM MERUIT. IN NO EVENT SHALL EITHER PARTY OR THEIR REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT A PARTY OR ITS REPRESENTATIVES WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN THE EVENT OF A DISPUTE BETWEEN THE PARTIES RELATING TO THE PERFORMANCE REQUIRED HEREUNDER, EACH PARTY AGREES TO WAIVE ITS RIGHTS TO PURSUE ANY LEGAL ACTION FOR PAYMENT PURSUANT TO OR BASED UPON THE EQUITABLE REMEDY OF QUANTUM MERUIT. NOTWITHSTANDING ANYTHING TO THE CONTRARY, TO THE EXTENT THAT APPLICABLE LAW DOES NOT PERMIT EXCLUSIONS OR LIMITATIONS OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SUCH LIMITATIONS WILL NOT APPLY.
  4. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE LICENSING AGREEMENT, A PURCHASE ORDER OR ANY OTHER WRITTEN AGREEMENT WITH SELLER, IN NO EVENT WILL SELLER’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, FOR ANY AMOUNTS IN EXCESS TO THE AMOUNT OF MONIES PAID BY BUYER TO SELLER IN THE PRIOR TWELVE- (12-) MONTH PERIOD PRIOR TO SUCH LIABILITY ARISING UNDER THIS AGREEMENT, THE LICENSING AGREEMENT, A PURCHASE ORDER OR ANY OTHER WRITTEN AGREEMENT WITH SELLER FOR GOODS OR SERVICES OR ANY INTELLECTUAL PROPERTY MATTERS ARISING UNDER THIS AGREEMENT.
  5. ASSUMPTION OF RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY GOODS OR SERVICES IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY SELLER, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE GOODS OR SERVICES.
  6. During the term of this Agreement and for a period of five- (5-) years thereafter, Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum not less than industry best practices with financially sound and reputable insurers. Upon Seller’s request, Buyer shall provide Seller with a certificate of insurance from Buyer’s insurer evidencing the insurance coverage specified in these Terms. Except where prohibited by law, Buyer shall require its insurer to waive all rights of subrogation against Seller’s insurers and Seller and any Indemnitee.
  7. Compliance with Export/Import Law. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Seller. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
  8. Buyer may terminate this Agreement or any Purchase Order at any time upon thirty (30) days prior written notice to Seller, provided, that Buyer’s initial deposit and each subsequent payment made prior to delivery of the Goods will not be refunded if Buyer terminates this agreement at any time after ten (10) business days following the Effective Date. Buyer’s payment obligations with respect to (x) fifty (50%) percent of the Price will survive if Buyer terminates this Agreement or any Purchase Order at any time subsequent to June 1, 2022, and (y) sixty-six-and-two-thirds (66-2/3%) percent of the Price if Buyer terminates this Agreement or any Purchase Order at any time subsequent to December 31, 2022. If Seller fails to deliver the Goods to Buyer on or before the original Delivery Date, Buyer may terminate this Agreement or any Purchase Order upon thirty (30) days prior written notice to Seller, and Seller shall promptly return the deposit received by Seller to Buyer, less any third party transaction processing or administrative costs and fees actually assessed or incurred by Seller, if any, in receiving or sending the deposit. If either party becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then the unaffected party may terminate this Agreement or any Purchase Order upon written notice to other party. If Seller terminates the Agreement or any Purchase Order for any reason, Buyer’s sole and exclusive remedy is return of payment for the Goods received in accordance with this Section 21.
  9. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
  10. Confidential Information. All non-public, confidential or proprietary information of Seller, that has or could have commercial value or other utility in the business or prospective business of Seller (from the reasonable standpoint of a competitor) or could be detrimental to the interests of Seller in the event of unauthorized disclosure; including but not limited to (i) specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, or (ii) certain confidential and proprietary information relating to eye-screening technology (including without limitation virtual reality, augmented reality, artificial intelligence, machine learning, image processing, data analytics, pattern recognition of archived eye exam data, equipment and devices (including without limitation, swappable housing, modular virtual or augmented reality headset, autorefractor, fundus camera, OCT, ophthalmic measuring device, portable, swappable extended head-mounted display (“HMD”), portable HMD ophthalmic device, without limitation fundus-scanning, fundus camera for HMD virtual reality, customized ophthalmic lenses, eye tracking cameras, eye tracking system with infrared emitters and light-emitting diodes (“LEDs”), and differential gear bracket for fundus camera) (such equipment and devices, “VR/AR Gear”), and related software applications to reduce time frame and enhance accuracy for performing eye screenings and examinations), disclosed or exposed by Seller to Buyer, directly or indirectly, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential”, whether before, during or after entering into this Agreement, in connection with Buyer’s use or purchase of the Goods, the Services or this Agreement is confidential, solely for the purpose of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. At Buyer’s sole expense, Seller shall be entitled to injunctive relief for any violation of this Section 23. This Section 23 does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully and lawfully obtained by Seller on a non-confidential basis from a third party who is not in breach of any confidentiality or privacy obligations. For the avoidance of doubt, the terms and conditions of this Agreement, any discussions or negotiations leading up to the execution of this Agreement, any drafts of this Agreement, are all deemed Seller’s Confidential Information.
  11. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such party’s (the “Impacted Party”) failure or delay is caused by or results from the following force majeure events (each a “Force Majeure Event”): (a) acts of God; (b) extreme weather conditions, flood, fire, earthquake; (c) pandemic, epidemic, plague, bio-terrorism, or explosion; (d) war, invasion, hostilities (whether war is declared or not), insurrection, terrorist threats or acts, riot or other civil unrest; (e) government order or advisory, law, or action (including without limitation, “shelter in place” order, declaration of (and restrictions relating to) “essential” and “non-essential” businesses or capacity limitations, disease or hazard mitigation measures); (f) embargoes or blockades in effect on or after the date of this Agreement; (g) national, regional, or municipal or local emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; (i) delay, limitations relating to, shortage of adequate power or transportation facilities or carriers; (j) default of any common carrier; (k) inability to obtain necessary (including commercially unreasonable shortages or pricing increases relating to) labor, materials, or manufacturing facilities; (l) suspension of any key exchanges or markets for the trading and pricing of any key raw materials reasonably necessary for the manufacture of Seller’s Goods; and (m) other similar events beyond the reasonable control of the Impacted Party, in each case of subclauses (a) through (m), whether or not such event or circumstances was foreseeable, and whether or not, such Party has been warned directly about such event or circumstance and had the opportunity to mitigate or limit the impact of such event or circumstances. The Impacted Party shall give notice within ten (10) business days of becoming aware of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of sixty- (60-) consecutive days following written notice given by it under this Section 24, the other party may thereafter terminate this Agreement upon ten (10) business days’ written notice.
  12. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the Purchase Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, reputable overnight courier (with all fees pre-paid), telecopy/facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid), provided, however, that any demands for meeting payment obligations in accordance with the terms of this Agreement may made by a party via e-mail so long as such email includes the header “LEGAL NOTICE / EARLY PURCHASE ORDER” in all caps and the recipient has delivered (either via email or otherwise in writing) confirmation of receipt, and shall be deemed to have been given or made when (a) delivered personally to the recipient, (b) telecopied/faxed to the recipient, or delivered by means of electronic mail if telecopied/faxed/emailed before 5:00 p.m. Eastern time on a business day, and otherwise on the next business day, or (c) one business day after being sent to the recipient by reputable overnight courier service (charges prepaid). Each party agrees to act in good faith to respond promptly as to any requests for confirmation of delivery, including confirmation of delivery by e-mail.
  13. No Grant of Ownership Right or License by License. Other than as explicitly set forth in these Terms or the License Agreement, no ownership, right, or license, either express or implied, to any property or intellectual property is granted from Seller to Buyer by this Agreement, including but not limited to under any patent, copyright, trademark, trade secret, or other proprietary right now or hereafter owned or controlled by the Seller, nor shall this Agreement grant Buyer any rights in or to Seller’s Confidential Information except as expressly set forth herein.
  14. Buyer shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section 27 shall be null and void. No assignment or delegation shall relieve Buyer of any of its obligations hereunder. Seller may at any time assign or transfer any or all of its rights or obligations under this Agreement without Buyer’s prior written consent to any affiliate or to any person acquiring all or substantially all of Seller’s assets.
  15. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
  16. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
  17. The meaning of any trade term and the rights and obligations of parties there under shall be as prescribed by the current edition of Incoterms published by the International Chamber of Commerce, Paris, France, save to the extent they are inconsistent with any of the Agreement, and in each case, irrespective of whether or not Goods are delivered in whole or in part by freight, shipping, trucking, air or other means of transportation, whether or not transported over water.
  18. Buyer Disputes and Mandatory Arbitration. The parties acknowledge and agree that most customer concerns relating to the Goods, Services, Warranty, this Agreement or the Licensing Agreement can be resolved quickly and to the customer’s satisfaction by calling Seller’s customer service department at [Insert Phone Number]. In the event that Seller’s customer service department is unable to resolve a complaint Buyer may have to Buyer’s satisfaction (or if Seller have not been able to resolve a dispute it has with Buyer after attempting to do so informally), each of Seller and Buyer agrees to resolve those disputes exclusive by (A) contacting and interacting with Seller’s customer service department first, (B) failing a satisfactory resolution of Buyer’s dispute, following the procedure set forth in the next paragraph below, and (C) failing a satisfactory resolution, through binding arbitration in accordance with the Arbitration Agreement below, instead of in courts of general jurisdiction.

If Buyer has any dispute with Seller or its affiliates arising out of or relating to this Agreement or the Licensing Agreement after being dissatisfied with Buyer’s engagement with Seller’s customer service department, Buyer agrees to notify Seller in writing with a brief, written description of the dispute and Buyer’s contact information, and Seller will have thirty (30) days from the date of receipt within which to attempt resolve the dispute to Buyer’s reasonable satisfaction. If the parties are unable to resolve the dispute through good faith negotiations during such thirty- (30-) day period under this informal process, either party may pursue resolution of the dispute exclusively in accordance with the Arbitration Agreement below, instead of in court.

Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted.

  1. Arbitration AgreementAfter providing a reasonable opportunity for customer service to resolve Buyer’s dispute and following the thirty- (30-) day procedure set forth in the paragraph above, Buyer and Seller agree to arbitrate any and all disputes and claims by and between, among or including, Seller (or its affiliates) and Buyer arising out of or relating to the Goods, the Services, this Agreement, the License Agreement or the Warranty Policy and the subject matter thereof, including claims arising in contract, in tort, by statute or otherwise and the scope or applicability of this Arbitration Agreement and provision in Seller’s Terms of Use (“Dispute”; each party hereto that is a party to such Dispute, a “Disputing Party”), shall be settled exclusively by arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules (the “Rules”).

This Agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:

  1. claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
  2. claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising);
  3. claims that are currently the subject of purported class action litigation in which Buyer are not a member of a certified class; and
  4. claims that may arise after the termination of this Agreement.

Such arbitration shall be held before a single arbitrator, to be selected in accordance with the Rules, provided, that, the arbitrator that shall be selected and shall conduct himself or herself as independent and impartial in all matters relating to the arbitration. The arbitrator shall administer and conduct any arbitration in a manner consistent with the Rules. The AAA’s rules are available at www.adr.org. A form for initiating arbitration proceedings is available on the AAA’s website at http://www.adr.org.

The arbitrator shall have sole and exclusive authority to resolve all claims covered by this Agreement, and any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator shall have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or adjudication and motions to dismiss and demurrers, prior to any arbitration hearing. The arbitrator shall have the authority to grant any relief authorized by law, including injunctive relief. Any issues involving the arbitrability of a dispute shall be governed by the Federal Arbitration Act (the “FAA”). Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereover. The place of arbitration shall be in the borough of Manhattan in New York, New York. The applicable governing law will be as set forth in Section 1 (Applicability; Entire Agreement) (provided, that, with respect to arbitrability issues, United States federal arbitration law will govern). The arbitrator shall not be bound by rulings in prior arbitrations involving different Seller users.

If the value of the relief sought is $25,000 or less, Buyer or Seller may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on Buyer and Seller subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by Buyer and/or Seller, unless the arbitrator requires otherwise.

Notwithstanding any other provision in this Agreement to the contrary, the parties expressly agree that the arbitrator shall have absolutely no authority to award consequential, incidental, special, treble, exemplary or punitive damages of any type under any circumstances regardless of whether such damages may be available under Delaware law, the FAA, the Rules or any other applicable laws (unless such damages are a part of a third-party claim for which a Person is entitled to indemnification hereunder). In the event of any conflict between Delaware law and the FAA, the FAA shall prevail.

Notwithstanding this Agreement to arbitrate or anything to the contrary in this Agreement, nothing shall bar a party from seeking temporary and emergent injunctive relief from a court of competent jurisdiction in aid of arbitration in emergent circumstances, including but not limited to circumstances involving the improper dissemination or other misuse of intellectual property.

The fees and expenses of the arbitrators shall, in the first instance, be borne equally by each Disputing Party, but, provided, that, the prevailing party in general any arbitration shall be entitled to recover its reasonable attorney’ fees and court costs from the non-prevailing party in such arbitration, and, the decision of the arbitrators will include such award of the arbitrators’ expenses and of other costs to the prevailing side as the arbitrator reasonably determines.

The arbitrator’s decision and award must be in writing stating the arbitrator’s essential findings and conclusions upon which any award is based, and will follow the terms of this Agreement, as applicable, and shall be binding upon all of the parties to the Dispute and final and non-appealable to the maximum extent permitted by law, and judgment thereon may be entered in a court of competent jurisdiction and enforced by any party to the Dispute as a final judgment of such court. A party’s right for review of the arbitrator’s decision is limited to grounds provided under applicable law.

The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator.

EACH OF BUYER AND SELLER AGREES THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, UNLESS BOTH BUYER AND SELLER AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS ARBITRATION PROVISION SHALL BE NULL AND VOID.

The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.

Each of Buyer and Seller irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any objection that either may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Agreement or any other document executed in connection herewith in any arbitral tribunal referred to in Paragraph A of this Section 31. Each of the parties hereto irrevocably waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such arbitral tribunal.

Each party hereto irrevocably consents to service of process in the manner provided for notices in Section 25 (Notices). Nothing in this Agreement will affect the right of any party hereto to serve process in any other manner permitted by applicable law. The Notice must (A) describe the nature and basis of the claim or dispute; and (B) set forth the specific relief sought (“Demand”). If Seller and Buyer do not reach an agreement to resolve the claim within thirty- (30-) days after the Notice is received, Buyer or Seller may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Seller or Buyer shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Buyer or Seller is entitled.

No information concerning any arbitration may be unilaterally disclosed by to any third party by any participating party unless it is required to do so by law or by a competent governmental, authority, regulatory or self-regulatory body and then only: (i) by disclosing no more than is legally required, and (ii) furnishing to the arbitrator and all participating parties details of the disclosure and an explanation and reason for it.

IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, EACH OF THE PARTIES HEREBY WAIVES THE RIGHT TO A JURY TRIAL.

Notwithstanding anything to the contrary in this Agreement or in any other agreement by and between Buyer and Seller, nothing in this Agreement or in any other agreement by and between Buyer and Seller shall affect any right that Seller may otherwise have to bring any action or proceeding relating to this Agreement or in any other agreement by and between Buyer and Seller against Buyer or any of Buyer’s respective properties in the courts of any jurisdiction.

  1. Governing Law; Default Jurisdiction and Venue if No Arbitration. This Agreement (together with any exhibits or schedules annexed hereto), the subject matter of this Agreement and the relationship between the parties shall be governed by, interpreted and construed in accordance with, and enforced under, the laws of the State of Delaware, without regard to its principles of conflicts of laws. If any lawsuit is permitted under or related to this Agreement in accordance with Section 31 and outside of the arbitration provisions set forth on Section 31, each party hereby agrees and consents to irrevocably submit to the exclusive venue and jurisdiction: of either (x) the Chancery Court of the State of Delaware (or if the Chancery Court is not available, the other state courts sitting in Delaware), (y) the New York State Supreme Court, Commercial Division (or if the New York State Supreme Court, Commercial Division is not available, the other state courts sitting within the borough of Manhattan in New York, New York), or (z) the federal courts sitting either in borough of Manhattan in New York, New York or the State of Delaware; together, in each case of (x), (y) or (z), with all applicable courts of appeal, if available (such courts, together with the courts identified in subclauses (x), (y) and (z), in each case, a “Proper Court”); and (iii) further consents that any summons, subpoena or other process or papers (including without limitation any notice or motion or other application to either of the aforementioned courts or a judge thereof) or any notice in connection with any proceedings hereunder, may be served inside or outside of the State of Delaware, by mail, by facsimile, by a reputable overnight delivery service, or by personal service provided a reasonable time for appearance is permitted, or in such other manner as may be permissible under the rules of said courts. Each party hereby (i) waives any objection to the laying of venue of any such action or proceeding in any Proper Court, and (i) waives, and agree not to plead or to make, any claim that any such action or proceeding brought in any Proper Court has been brought in an improper or inconvenient forum, with respect to the foregoing.
  2. WAIVER OF JURY TRIAL. Each Party waives any right to trial by jury with respect to any dispute, suit, action or proceeding arising out of or relating to this Agreement or otherwise relating to the relationship of the Parties, whether in contract, tort or otherwise.
  3. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
  4. No Third Party Beneficiaries.
    1. Subject to Section 35(b), this Agreement benefits solely the parties to this Agreement and their respective permitted successors and assigns, and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
    2. The parties hereby designate the Indemnitees as third-party beneficiaries of Section 14 having the right to enforce Section 14.
  5. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Indemnification, Intellectual Property Indemnification, Insurance, Seller’s Compliance with Laws, Compliance with Export/Import Law, Confidential Information, Force Majeure, Governing Law; Jurisdiction and Venue, No Liability for Consequential or Indirect Damages or Quantum Meruit, Assumption of Risk, No Third Party Beneficiaries, No Grant of Ownership Right or License, Limitation of Liability, Buyer Disputes and Mandatory Arbitration, Waiver of Jury Trial and Survival.
  6. Injunctive Relief. Buyer acknowledges and agrees that the breach by it of any of its obligations hereunder may cause serious and irreparable harm to Seller, which could not adequately be compensated for in damages. Buyer therefore consents to an order specifically enforcing the provisions of this Agreement, or an order of injunction being issued against it restraining it from any further breach of such provisions and agrees that such injunction may be issued against it without the necessity of an undertaking as to damages by Seller. The provisions of this Section 36 shall not derogate from any other remedy which Seller may have in the event of such a breach.
  7. Further Assurances. Upon Seller’s reasonable request, Buyer shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to this Agreement.
  8. This Agreement may be executed and delivered by facsimile signature or other electronic means and in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
  9. Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.
  10. Authorized Representatives. Each signatory to this Agreement personally represents that, he, she or it has authority to legally bind his, her or its respective party to this Agreement.
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