Next-Generation Automated Refraction and Visual Field Exam Headset

Terms & Conditions

Last updated February 2023

Each Sale, Quote, or Proposal by Xenon Ophthalmics Inc, Inc. is subject to the following Terms and Conditions:

The following terms and conditions shall apply to all sales of goods to any purchaser (“Buyer”) from Xenon Ophthalmics Inc, Inc. (“Seller”):

  1. Applicability

    1. The accompanying [purchase order or pricing quotation] (the “Confirmation Document”) and these License Terms & Conditions (“Terms”) (collectively, this “Agreement“) comprise the entire Agreement between Xenon Ophthalmics Inc, Inc. (“Xenon Ophthalmics Inc“) and the Customer named on the Confirmation Document (“Customer”) concerning the provision by Xenon Ophthalmics Inc to Customer of the Headsets (as defined in Section 2(a)), and supersede all prior verbal or written communications or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications. These Terms prevail over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms. Xenon Ophthalmics Inc and Customer are each a “Party” and, collectively, the “Parties.”  For clarity, if applicable, Xenon Ophthalmics Inc will execute and abide by the Customer’s Standard Business Agreement (“SBA”). Nothing contained in this Agreement shall limit or modify Xenon Ophthalmics Inc’s obligations under the SBA.
    2. All orders for Headsets submitted by Customers are subject to acceptance by Xenon Ophthalmics Inc.  Acceptance is limited to licensed eyecare professionals or agencies representing licensed eyecare professionals. Acceptance of Headsets by Customer constitutes an agreement by Customer to be bound by these Terms, which constitutes the only binding Terms between the Parties, even if these Terms differ from or are in addition to those on any purchase orders, SBA, or other document sent to Xenon Ophthalmics Inc by Customer.

  2. Loaned Product; Purchased Product; Licensed Product.

    1. Xenon Ophthalmics Inc may, at its discretion, loan to and deposit on consignment with, Customer several headsets (each, a “Headset”) set forth in the purchase order document for trial use during the Term (as defined in Section 12(a) if the “Headset(s) (if loaned) element is completed on the Confirmation Document. Alternatively, if the “Headset(s) (if purchased) element is completed on the Confirmation Document, Xenon Ophthalmics Inc will sell the Customer the number of Headsets outlined in such a cell of the Confirmation Document. 
    2. Customer shall be subject to and bound by the terms and conditions applicable to the use or operation of the Headset(s) and any incorporated software developed by or on behalf of the manufacturer of such Headset or any Third-Party software incorporated in such Headset(s) (“Incorporated Third-Party Software”) (collectively, “Applicable Third-Party Contractual Terms“). The Applicable Third-Party Contractual Terms may be accessed at Xenon Ophthalmics Inc. Customer acknowledges and agrees that Customer’s compliance with all the provisions of this Agreement shall be in addition to, and not in lieu of, Customer’s obligation to comply with all the Applicable Third-Party Contractual Terms. Notwithstanding the foregoing, in the event of any conflict between any Applicable Third-Party Contractual Terms and any of the terms of this Agreement, the terms of this Agreement shall supersede and control. “Third-Party” means any Person other than Xenon Ophthalmics Inc, Customer, or an affiliate of either Xenon Ophthalmics Inc or Customer. “Person” means an individual, sole proprietorship, partnership, limited partnership, limited liability partnership, corporation, limited liability company, business trust, joint stock company, trust, incorporated association, joint venture, or similar entity or organization, including a government or political subdivision, department, or agency of a government.
    3. Xenon Ophthalmics Inc hereby grants to Customer a non-exclusive, non-transferable license during the Term to access, use and operate Xenon Ophthalmics Inc’s proprietary hosted software application and the proprietary software that Xenon Ophthalmics Inc installs on the Headsets prior to delivery, as well as all related documentation and all updates, enhancements, error corrections, software fixes, release notes, upgrades, and changes to such software and documentation developed by Xenon Ophthalmics Inc from time to time during the Term and made generally available to Xenon Ophthalmics Inc customers without a separate charge (collectively, the “Software”) with the Headsets provided pursuant to Section 2(a) and any Incorporated Third-Party Software (collectively, “Products”) to evaluate and diagnose impairments in the visual field, refraction, visual alignment errors and other visual conditions or pathologies in patients. 
    4. The licenses granted by Xenon Ophthalmics Inc to the Customer with respect to the Software and the Incorporated Third-Party Software, as well as the loan and consignment by Xenon Ophthalmics Inc to the Customer of the Headsets, are limited to the Customer’s Permitted Users and Permitted Sites. “Permitted Users” means the Customer if the Customer is an eye care physician or a healthcare service provider or if the Customer is an entity that owns and operates an optometry or ophthalmology practice, those eye care providers or other healthcare service providers that work in such eye care practice and are designated by Customer in writing as “permitted users” of the Product. “Permitted Sites” means the location or locations in which Customer, or any Permitted Users of Customer, provide optometry or ophthalmology services to patients.
    5. Customer shall complete and return the user implementation plan document with the names of Customer’s initial Permitted Users and the other information to be included in the user contact log and shall update and return such user log to Xenon Ophthalmics Inc promptly following any change in the identity of Permitted Users or Permitted Sites. Following receipt from Customer of such a completed user implementation plan, Xenon Ophthalmics Inc will deliver, or cause to be delivered, the Headset(s) to Customer and Xenon Ophthalmics Inc will provide each Permitted User with a personal and non-transferable username and password to access the Software. If necessary to access, use or operate the Product or any component thereof, Xenon Ophthalmics Inc will provide each Permitted User with a non-transferrable username and password to access, use or operate any Third-Party Incorporated Software.
    6. Customer shall not:
      1. modify, disassemble, or reverse engineer any Headset (or any component thereof), modify, copy, translate, decompile, or create derivative works based on any Third-Party Incorporated Software or the Software of any other component or aspect of the Product.
      2. Rent, lease, license, loan, resell, transfer, distribute, or otherwise make the Product or any component thereof (including, without limitation, all or any portion of any Headset, any Third-Party Incorporated Software or the Software) available to any Third-Party, it being understood that this does limit use of the Product by Permitted Users concerning the diagnosis of patients.
    • Remove or alter any proprietary rights notices affixed to or contained within the Headsets, the Incorporated Third-Party Software, or the Software. 
    1. Mortgage, pledge, or encumber the Product (or any component thereof) in any way.
    2. Use or knowingly permit any security testing tools to probe, scan or attempt to penetrate or ascertain the security of the hosted Software application(s).
    3. Attempt to gain access to the hosted Software or related systems or networks in a manner not outlined in the Documentation.

  1. Product Support

    1. Xenon Ophthalmics Inc shall provide Customer Permitted Users with training, technical support, and maintenance services for the hosted software and hardware following the Documentation. “Documentation” means Xenon Ophthalmics Inc’s online or hardcopy technical and/or functional user guides for operating the Software services, as modified from time to time. Xenon Ophthalmics Inc may, from time to time, change the support services without the Customer’s consent, provided that such changes do not materially affect the nature or scope of the services or the fees outlined in the Confirmation Document.
    2. Customer will keep the Headset(s) in good condition and working order. Upon delivery of the Headset(s) to Customer and unless the Headset(s) is or are returned to Xenon Ophthalmics Inc, Customer assumes and will bear the risk of all loss or damage to the Headset(s). The Customer will promptly provide Xenon Ophthalmics Inc with written notice of any loss or damage to the Headset(s).
    3. If Customer identifies a defect or malfunction with the Headset or any Third-Party Incorporated Software, Customer shall provide Xenon Ophthalmics Inc with written notice of such defect or malfunction within two (2) business days of discovery thereof. Customer shall, within five (5) business days following the discovery of any such defect or malfunction in any Headset (including any Third-Party Incorporated Software), send via overnight courier or deliver to Xenon Ophthalmics Inc in person the defective Headset. Xenon Ophthalmics Inc will provide a replacement Headset per this section using the procedure specified for Nonconforming Headsets. Replacement shall be at no charge unless the defect or malfunction is due to
      1. damage to the Headset resulting from improper storage, misuse or abuse, mishandling, neglect, physical or electric modifications, exposure to water or other liquids, exposure to moisture, exposure to extreme conditions (e.g., heat, dirt or sand),
      2. use with a product other than the Software, 
    • use with inadequate ventilation, 
    1. use not per the provisions of Section 2, or unauthorized repairs. For clarity, any cosmetic damage (e.g., scratches) will not be deemed a defect or malfunction. For clarity, damage resulting from normal wear and tear and normal depletion of parts (e.g., batteries) unless occurring due to defective workmanship or materials in your product’s hardware. For example, only batteries that leak or exhibit fully charged capacity below a certain threshold of the actual rated capacity will be considered defective for this warranty purposes.

  1. Security; Risk of Loss

    1. The goods covered hereby shall be subject to a security interest of Seller until fully paid for in collected funds, and Buyer agrees until such full payment is made that Seller may take all action which may be necessary to perfect that security interest, including the filing of financing statements. The risk of loss of the goods shall pass to the Buyer upon delivery to the carrier from the point of shipment. Claims for loss or damage in transit should be made promptly and directly to the carrier. Any claims for shortages or errors in shipment caused by packing error and not the carrier must be filed with the Seller within 30 days of receipt of shipment.

  2. Delivery

    1. All goods shall be shipped in a reasonable time f.o.b. Seller’s origin. Unless otherwise specified on the face of Seller’s quote or order acknowledgment or Buyer’s purchase order, shipment may be made by Seller by any reasonable method it may choose. All shipment dates are approximate. Training and Installation dates and the like are only included if referenced explicitly in the Seller’s quote or order acknowledgment.
    2. Concerning the Software, Customer shall cooperate with Xenon Ophthalmics Inc in all matters relating to the provision of the Software and provide such access to Customer’s premises and such office accommodation and other facilities as may reasonably be requested by Xenon Ophthalmics Inc to provide the Software and related training (if any). 
    3. Loss, Damage, or Delay; Seller shall not be liable for loss, damage, or delay resulting from causes beyond its reasonable control, including but not limited to inability to obtain necessary labor or materials or breakdown of manufacturing facilities. In the event of delay due to any such cause, the shipment date shall be postponed to such time as may be reasonably necessary
    4. The Customer shall inspect the Headset(s) upon receipt. The Customer will be deemed to have accepted the Headsets unless it notifies Xenon Ophthalmics Inc in writing of any Nonconforming Headsets within three (5) business days following receipt. “Nonconforming Headsets” means that the product shipped is different than identified in the Customer’s Confirmation Document or that the product’s packaging incorrectly identifies its contents. If the Customer timely notifies Xenon Ophthalmics Inc of any Nonconforming Headsets, Xenon Ophthalmics Inc shall replace such Nonconforming Headsets with conforming Headsets. The Customer shall ship, at its expense and risk of loss, the Nonconforming Headsets to Xenon Ophthalmics Inc’s facility identified in the Confirmation Document. After receiving the Customer’s shipment of Nonconforming Headsets, Xenon Ophthalmics Inc shall deliver the replaced Headsets in accordance with Section 5(a).

  1. Pricing; Payment, Price Changes

    1. Terms of payment are net 30 days from the date of invoice unless otherwise agreed by parties in writing. Goods shall be invoiced as shipments are made. If the Buyer delays shipments, payments become due when the Seller is prepared to make the shipment. Unless Seller’s quote or order acknowledgment specifies that no price adjustments are applicable, if Buyer’s order or Seller’s quote contemplates shipments of items to take place more than six months after the order date, the prices of those items are subject to adjustment to Seller’s prices generally applying as of the respective date or dates of shipment; provided; however, such adjustments shall not exceed 15% of the prices generally applying at the time of the order.
    2. Customer shall pay Xenon Ophthalmics Inc for the Products, licenses and warranties, and related services as outlined in the Confirmation Document. Xenon Ophthalmics Inc shall invoice the Customer monthly electronically or in writing. Each invoice shall set forth the Confirmation Document(s) number and the amounts being billed. As reasonably requested by Customer, Xenon Ophthalmics Inc shall cooperate in good faith with Customer to promptly provide additional billing information.
    3. All payments of fees shall be made in U.S. Dollars by credit card, Automated Clearing House (ACH) transfer, or wire transfer of immediately available funds into an account designated by Xenon Ophthalmics Inc. Payments shall be due on the invoice date. Suppose Xenon Ophthalmics Inc does not receive payment of any sum due to it on or before the due date. In that case, simple interest shall, after that, accrue on the sum due until the date of payment at the per annum rate of two percent (2%) over the then prime rate quoted SOFR (Secured Overnight Financial Rate) or the maximum rate allowable by Applicable Law, whichever is lower. “Applicable Law” means all applicable statutes, ordinances, regulations, rules, or orders of any kind whatsoever of any national, federal, state, local, municipal, or other government authority of any nature (including any governmental division, subdivision, department, instrumentality, agency, bureau, branch, office, commission, council, court, or other tribunals).
    4. Customer shall reimburse Xenon Ophthalmics Inc for all reasonable costs incurred by Xenon Ophthalmics Inc in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees. If such failure continues for more than forty-five (45) days following written notice thereof, Xenon Ophthalmics Inc may suspend performance until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person because of such suspension unless Customer has complied with its obligations under Section 5(d).
    5. If Customer disputes any fees under this Agreement, it shall pay any undisputed payment obligations (including undisputed portions of a payment obligation that is subject to a dispute), and the Parties shall promptly initiate dispute resolution per Section 13(b). 

  2. Taxes

    1. Taxes arising from the activities conducted by Xenon Ophthalmics Inc and Customer according to this Agreement shall be borne and paid by the Party upon whom such tax is imposed by Applicable Law. Prices quoted do not include any state or local property, sales, use, or privilege taxes, or any export or import duties or taxes or the like. Buyer agrees to pay or reimburse any such taxes and duties required to be paid in respect of this transaction.
    2. Xenon Ophthalmics Inc may increase fees by providing written notice to the Customer at least ninety (90) days before the price increase specifying those fees for which an adjustment is being made and the scope of the adjustment, and the applicable Confirmation Document(s) will be deemed amended accordingly.

  3. Intellectual Property Rights, Patents, Trademarks

    1. No right to any trademark, trade name, patent, license, approval, or copyrighted material is granted to Buyer by Seller except as noted on the face of Seller’s quote or order acknowledgment. Seller shall have no liability for infringement of any patents, trademarks, trade names, copyrights, trade dress, trade secrets, other industrial or intellectual property rights, or similar rights (hereinafter collectively referred to as the “Intellectual Property Rights”). Seller makes no representation or warranty that the goods sold hereunder do not infringe the Intellectual Property Rights of third parties. Suppose any goods are subject to a claim that they infringe the Intellectual Property Rights of a third party. In that case, Seller may, in its sole discretion, procure for Buyer the right to continue using those goods, replace or modify the goods to make them non-infringing, or offer to accept the return of the goods and return the purchase price. The preceding provisions of this paragraph shall constitute Seller’s sole and exclusive liability and Buyer’s sole and exclusive remedy for infringement of Intellectual Property Rights.
    2. Xenon Ophthalmics Inc owns all Intellectual Property Rights in and to the Product and its components (including the Software), and full ownership of the Product (including in each case any improvements) are and shall remain the property of Xenon Ophthalmics Inc and its licensors. “Intellectual Property Rights” means all rights, title, and interest to or in patent, copyright, trademark, service mark, trade secret, business or trade name, know-how, and rights of a similar or corresponding character.
    3. All right, titles and ownership of Customer Data is and shall remain solely and exclusively vested in Customer, including all Intellectual Property Rights relating thereto. “Customer Data” means the data provided by Customer or any Permitted User to Xenon Ophthalmics Inc pursuant to this Agreement or generated, processed or analyzed by, or stored or collected in, the Product in the course of the use or operation of the Product by Customer or any Permitted Users pursuant to this Agreement; provided, however, that for purposes of this Agreement Customer Data shall not include “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d) (“HIPA”). Customer represents, warrants, and covenants that it has obtained all necessary consents (including, without limitation, all necessary consents from patients of Customer or any Permitted Users) to provide or permit access to the Customer Data to Xenon Ophthalmics Inc pursuant to this Agreement.
    4. Customer hereby grants to Xenon Ophthalmics Inc a limited, non-exclusive, non-transferable, sublicensable, worldwide, and royalty-free license to use the Customer Data in connection with the provision of the Product or any component thereof (including, without limitation, the Software) during the Term. Customer represents, warrants, and covenants that it has obtained all necessary consents (including, without limitation, all necessary consents from patients of Customer or any Permitted Users) to grant to Xenon Ophthalmics Inc the licenses and rights to set forth above in this Section 6(c).
    5. If Customer provides Xenon Ophthalmics Inc with any suggestions with respect to enhancements, changes, or adaptations for improving the Product that Customer may have, Customer hereby irrevocably assigns and agrees to assign to Xenon Ophthalmics Inc all rights, titles, and interests of Customer in and to the Feedback, and all rights to exploit the Feedback, or any parts thereof, by any and all means, whether now known or hereinafter developed, free and clear of any and all rights claimed by Customer or any Permitted User. In the event and to the extent that the Feedback cannot be assigned, the Customer grants to Xenon Ophthalmics Inc a perpetual, irrevocable, exclusive, transferable, sublicensable, worldwide, and royalty-free license for Xenon Ophthalmics Inc to use the Feedback for any purpose. Xenon Ophthalmics Inc’s use of the Feedback shall be subject to Section 7(e) with respect to Feedback that is identified as provided by the Customer.

  4. Confidentiality

    1. Buyer acknowledges that technical information contained in plans, drawings, specifications, and other documents disclosed and/or furnished to it by Sellers are the sole and exclusive property of Seller, and Buyer shall hold same in confidence.
    2. Each Party agrees that, during the Term and for a period of [five (5)] years thereafter, a Party (“Receiving Party”) receiving Confidential Information of the other Party (“Disclosing Party”) shall:
      1. Maintain in confidence such Confidential Information using not less than the efforts such Receiving Party uses to maintain in confidence its own confidential or proprietary information of similar kind and value.
      2. Not disclose such Confidential Information to any third party without the prior written consent of the Disclosing Party, except for disclosures expressly permitted below.
    • Not use such Confidential Information for any purpose except those permitted by this Agreement. Notwithstanding anything contrary in this Agreement, the obligations of confidentiality and non-use concerning any trade secret within such Confidential Information shall survive such [5-year] period for so long as such Confidential Information remains protected as a trade secret under Applicable Law. 
    1. “Confidential Information”means all proprietary information concerning the Product or any component of the Product, the Customer Data, the Feedback, the terms of this Agreement, and any other information that is confidential or proprietary provided by one Party to the other Party (“Receiving Party”) in any form.
    2. The obligations in Section 7(a) shall not apply with respect to any portion of the Confidential Information to the extent that the Receiving Party can show by competent evidence:
      1. Is publicly disclosed by the Disclosing Party, either before or after it is disclosed to the Receiving Party hereunder; 
      2. Is known to the Receiving Party or any of its Affiliates, without any obligation to keep it confidential or any restriction on its use, prior to disclosure by the Disclosing Party; 
    • Is subsequently disclosed to the Receiving Party or any of its Affiliates on a non-confidential basis by a Third-Party that, to the Receiving Party’s knowledge, is not bound by a similar duty of confidentiality or restriction on its use;
    1. Is now, or hereafter becomes, through no act or failure to act on the part of the Receiving Party or any of its Affiliates, generally known or available, either before or after it is disclosed to the Receiving Party;
    2. Is independently discovered or developed by or on behalf of the Receiving Party or any of its Affiliates without the application or use of Confidential Information belonging to the Disclosing Party; or 
    3. Is the subject of written permission to disclose provided by the Disclosing Party. 
    1. The Receiving Party may disclose Confidential Information belonging to the Disclosing Party in response to a court order or other legal requirement, provided that the Receiving Party will, except where impracticable or prohibited by Applicable Law, give reasonable advance notice to the Disclosing Party upon learning about any court order or other legal requirement that purports to compel disclosure of such Confidential Information and permits the Disclosing Party to the exercise its right to protect the confidentiality of the Confidential Information before any tribunal or governmental agency. When any Confidential Information is disclosed per this Section 7(c), such disclosure shall not cause any such information to cease to be Confidential Information except to the extent that such disclosure results in a public disclosure of such information (other than by breach of this Agreement). 
    2. Each Receiving Party shall notify the Disclosing Party promptly on discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information by the Receiving Party or any of its Affiliates, agents, or representatives.
    3. Neither Party shall make, place, or disseminate any advertising, public relations, promotional material, or any material of any kind using the other Party’s name or their trademarks without the prior written approval of the other Party. Without limiting the generality of the preceding, upon receipt of written consent from the Customer to use Feedback for testimonials, reference accounts, and marketing materials, such consent not to be unreasonably withheld, delayed, or conditioned, Xenon Ophthalmics Inc shall have to right to use the Feedback (as identified by Customer in its consent) for testimonials, reference accounts, marketing materials or other publicity purposes.

  1. Data Security; Protected Health Information

    1. During the Term:
      1. Xenon Ophthalmics Inc shall maintain administrative, physical, and technical safeguards that reasonably and appropriately protect customer data’s confidentiality, integrity, and availability. Xenon Ophthalmics Inc shall maintain complete and accurate records relating to its data protection practices and the security of Customer Data, including any backup, disaster recovery, or other policies, practices, or procedures relating to Customer Data and any other information relevant to its compliance with Section 7 and this Section 8; and upon Customer’s request, make all such records, appropriate personnel, and relevant materials available during regular business hours for inspection and audit by Customer or an independent data security expert that is reasonably acceptable to Xenon Ophthalmics Inc, provided that Customer shall:
        1. Give Xenon Ophthalmics Inc at least thirty (30) days prior notice of any such audit.
        2. Undertake such audit no more than once per calendar year, except for a good cause shown.
        3. Conduct or cause to be conducted such audit in a manner designed to minimize disruption of Xenon Ophthalmics Inc’s regular business operations, and that complies with the terms and conditions of all data confidentiality, ownership, privacy, security, and restricted use provisions of this Agreement. Customer may, but is not obligated to, perform such security audits.
      2. Any failure of Xenon Ophthalmics Inc to meet the requirements of this Agreement concerning the security of any Customer Data or other Confidential Information of Customer, including any related backup, disaster recovery, or other policies, practices, or procedures, is a material breach of this Agreement for which Customer, at its option, may terminate this Agreement on written notice to Xenon Ophthalmics Inc in accordance with Section 12(d) without any notice or cure period.
      3. Xenon Ophthalmics Inc agrees to execute and abide by Customer’s Standard Business Associate Agreement (“SBA”). Nothing contained in this Agreement shall limit or modify Xenon Ophthalmics Inc’s obligations under the SBA.

  1. Compliance; Standards

    1. Xenon Ophthalmics Inc agrees to comply with 42 U.S.C. §1320a-7b(b)(3)(A) and the “safe harbor” regulations regarding discounts or other reductions in the price set forth at 42 C.F.R. §1001.952(h). Xenon Ophthalmics Inc represents and warrants that all discounts described in this Agreement are earned based on purchases of the same good or service bought within a single fiscal year under this Agreement. Xenon Ophthalmics Inc agrees to identify each invoice, coupon, or statement in the net price and comply with such requests the Customer may make from time to time in connection with any reporting obligations or if the value of the discount is not known at the time of sale, Xenon Ophthalmics Inc shall fully and accurately report the existence of the discount program on the invoice, coupon or statement submitted to Customer and when the value of the discount becomes known to provide Customer with the documentation of the calculation of the discount identifying the specific goods or services purchased to which the discount will be applied. Xenon Ophthalmics Inc shall refrain from doing anything which would impede Customer from meeting its obligations under this Section or applicable law or the safe harbor at 42 C.F.R. §1001.952(h).
    2. Xenon Ophthalmics Inc represents and warrants that it and its directors, officers, and employees involved in the direct provision of healthcare services reimbursable under Medicare or Medicaid (if any) (i) are not currently and for the duration of this Agreement shall not be excluded, debarred, or otherwise ineligible to participate in the Federal health care programs as defined in 42 U.S.C.A. §1320a-7b(f) (the “Federal Healthcare Programs”); (ii) have not been and for the duration of this Agreement shall not be convicted of a criminal offense related to the provision of healthcare items or services but have not yet been excluded, debarred, or otherwise declared ineligible to participate in the Federal Healthcare Programs; and (iii) are not, to the knowledge of Xenon Ophthalmics Inc management, under investigation or otherwise aware of any circumstances which may result in being excluded from participation in the Federal Healthcare Programs. If Xenon Ophthalmics Inc or its directors, officers, and employees involved in the direct provision of healthcare services reimbursable under Medicare or Medicaid (if any) are excluded or threatened to be excluded from participating in or become otherwise ineligible to participate in, any such program during the term of this Agreement, Xenon Ophthalmics Inc shall notify Customer of that event immediately. Notwithstanding any other provision in this Agreement, Customer shall incur no obligation to pay for Headsets provided during any period of exclusion of Xenon Ophthalmics Inc from participation in any federal health care program or other federal or state government payment program and Xenon Ophthalmics Inc agrees to reimburse Customer for any losses, including but not limited to lost revenue, incurred by Customer as a result therefore or arising therefrom. Any breach of this Section shall give Xenon Ophthalmics Inc the right to terminate this Agreement immediately as well as any other remedies available under this Agreement or otherwise.
    3. The Parties shall comply with the provisions of Section 1861(v)(l)(I) of the Social Security Act (as amended) and any regulations promulgated thereunder, and the Parties shall make available, upon written request of the Comptroller General of the United States, the Secretary of the Department of Health and Human Services, or any of their duly authorized representatives, any books, documents, and records that are necessary to verify the nature and extent of costs incurred by either Party under this Agreement. The Parties obligation to make records available shall extend for four (4) years after the termination of this Agreement. This provision shall survive termination or expiration of this Agreement.
    4. Each Party shall be responsible for tracking and reporting transfers of value initiated and controlled by its and its affiliates’ employees, contractors, and agents pursuant to the requirements of the transparency laws of any Governmental Authority in the Territory, including Section 6002 of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, as amended, is commonly referred to as the “Sunshine Act.”

 

  1. Representations and Warranties

    1. Seller warrants to Buyer or the purchaser from a Seller-authorized dealer that upon shipment, the goods shall be as described herein and shall be free of defects in workmanship and materials. This warranty shall extend for two years and be subject to any additional terms and limitations contained in the separate warranty policy that accompanies the goods or quote for services or that is posted for the product or type of service on the Seller’s website at www.Xenon Ophthalmics Inc.com. This warranty does not cover items typically consumed or require replacement due to normal usage or wear. Replacement warranty parts and service are warranted for the balance of the original warranty term for the product in question. No other words or actions shall constitute a warranty by Seller unless contained in writing, signed by Seller, and referenced on the face of Seller’s quote or order acknowledgment. No employee or representative has authority to bind Seller to any representation, affirmation, or warranty not so specifically included herein. Except as expressly set forth herein, THERE ARE NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, AS TO MERCHANTABILITY OR FITNESS OF PURPOSE WITH RESPECT TO ANY GOODS SOLD HEREUNDER.
    2. Each Party represents and warrants to the other Party that:
      1. Such Party has the full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby and has taken all necessary corporate action to authorize the execution and delivery of this Agreement. 
      2. This Agreement is and shall be the legal, valid, and binding obligation of such Party and shall be enforceable in accordance with its terms.
    • Such Party shall comply with all applicable privacy or data protection statutes, rules or regulations governing the respective activities of that Party.
    1. Neither this Agreement nor any Confirmation Document, nor any payment thereunder, is in exchange for any explicit or implicit agreement or understanding that Xenon Ophthalmics Inc purchase, lease, order, prescribe, recommend or otherwise arrange for, or provide formulary or another preferential or qualifying status for the use of Customer products.
    2. The total payment for the Headsets represents the Fair Market Value for the Services. It has not been determined in any manner that considers the volume or value of any referrals or business between Xenon Ophthalmics Inc and the Customer. “Fair Market Value” means the compensation negotiated during an arms-length transaction in which neither Party is required to buy or sell and when both Parties have reasonable knowledge of the relevant facts.
    1. Xenon Ophthalmics Inc represents and warrants to Customer that during the Term of this Agreement:
      1. The Software shall perform substantially in accordance with the applicable Documentation when used and/or accessed in accordance with the terms and conditions of this Agreement.
      2. The functionality of the Software shall not be materially decreased.
    • The Software will be reasonably accessible by the Customer except for scheduled downtime for routine maintenance and service.
    1. Xenon Ophthalmics Inc has received clearance from the U.S. Food and Drug Administration (“FDA”) to commercially distribute, sell or market the Product in the U.S. based on a determination by the FDA of substantial equivalence (within the meaning of 21 C.F.R. § 807.100).  Xenon Ophthalmics Inc does not provide a warranty with respect to the Headsets and the Incorporated Third-Party Software components of the Product but will replace a defective Headset (including Incorporated Third-Party Software) in accordance with the provisions of Section 3(c).
    1. Customer represents and warrants to Xenon Ophthalmics Inc that during the Term of this Agreement, the Headsets shall only be used by licensed healthcare service providers to provide optometry or ophthalmology-related medical services. The Customer acknowledges that healthcare professionals (and not Xenon Ophthalmics Inc) are solely responsible for determining patients’ treatment regimens and applying and integrating the information obtained from the Product into day-to-day medical practice. The Product is not a substitute for professional medical judgment or the Customer’s experience in evaluating patients. Xenon Ophthalmics Inc shall have no obligations or liability related to any failure on the part of Customer or any Permitted User.
      1. In the case of healthcare professionals, exercise prudent professional judgment.
      2. In the case of patients, follow the advice of healthcare professionals.
    2. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 10, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES, INCLUDING ANY EXPRESS OR IMPLIED WARRANTY OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY OF NON-INFRINGEMENT Of Third-Party rights. Xenon Ophthalmics Inc and its licensors make no warranty that the PRODUCTS operation will be uninterrupted or error-free or that all defects will be corrected except to the extent that the same impact the functionality of the PRODUCTS.

  1. Limitation of Liability

    1. Seller shall, at its election and expense, repair or replace any goods or any part thereof which does not comply with one or more of the foregoing warranties, provided that such goods or part was used in a proper manner, under normal conditions, and in accordance with such directions for use as may be furnished by Seller and provided that alterations or repairs upon such goods or part by one other than Seller shall have been performed, in the sole judgment of Seller, in a proper manner and shall not have resulted in a substantial change therein. Whether or not the goods have been delivered by Seller, in no event shall Seller’s liability exceed the purchase price for the goods. SELLER SHALL UNDER NO CIRCUMSTANCES BE LIABLE TO BUYER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR INDIRECT DAMAGES ARISING OUT OF THIS TRANSACTION OR THE USE OR MISUSE OF THE GOODS OR ANY PART THEREOF, WHETHER BASED UPON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL THEORY. WITHOUT LIMITATION, SELLER SHALL HAVE NO LIABILITY TO BUYER FOR ANY DAMAGE TO THIRD PARTIES ARISING OUT OF THE USE OR OPERATION OF THE GOODS. THE REMEDIES OF THE BUYER ARISING OUT OF THIS TRANSACTION OR WITH RESPECT TO THE GOODS COVERED HEREBY SHALL BE LIMITED TO THOSE CONTAINED IN THESE TERMS AND CONDITIONS OF SALE EXCLUSIVELY AND IN LIEU OF ANY AND ALL OTHER REMEDIES, WHETHER BASED UPON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE OR ANY OTHER LEGAL THEORY. The buyer waives all remedies unless claim is made within the applicable warranty period.
    2. Except for breach of Section 7 [or Third-Party claims for indemnification under Section 11], IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR COSTS OF SUBSTITUTE SERVICES) SUFFERED BY EITHER PARTY, HOWEVER, CAUSED, REGARDLESS OF THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, PRODUCT LIABILITY OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY, OR HAS CONSTRUCTIVE KNOWLEDGE, OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.

  2. Term and Termination

    1. The term of this Agreement shall commence on the Effective Date set forth in the Confirmation Document and shall, unless earlier terminated in accordance with Section 12(b)-(d), expire on the second anniversary of the Effective Date (the “Term”).
    2. Either Party may terminate this Agreement upon at least thirty (30) days prior written notice to the other Party upon breach of this Agreement by such other Party unless the Party in breach cures the breach within the such 30-day period.
    3. Customer may terminate with notice in accordance with Section 8(b).
    4. Customer may terminate this Agreement without cause upon at least ninety (90) days prior written notice to Xenon Ophthalmics Inc.
    5. Promptly following the termination or expiration of this Agreement,
      1. Xenon Ophthalmics Inc shall, if requested by Customer, provide to Customer a copy of all Customer Data in the format then maintained by Xenon Ophthalmics Inc, excluding such Customer Data which has been aggregated and de-identified for use in accordance with Section 6(c);
      2. Customer shall return to Xenon Ophthalmics Inc the Product (including all Headsets other than those Headsets that Customer purchased in accordance with Section 2(a), and the Documentation); and (iii) each Receiving Party shall, in accordance with the Disclosing Party’s request, either return to the Disclosing Party or certify in writing to the Disclosing Party that it has destroyed all documents and other tangible items containing the Confidential Information of the Disclosing Party. For clarity, Section 12(e)
    • Shall not require Xenon Ophthalmics Inc to cease using the license granted it under Section 6(c) with respect to Customer Data which has been aggregated and de-identified for use in accordance with Section 6(c).
    1. Except as otherwise provided herein, termination or expiration of this Agreement for any reason will be without prejudice to any rights that will have accrued to the benefit of a Party prior to the effective date of such termination. The provisions of Sections 2(f), 3(b)(second sentence), 5(f), 6, 7, 10(d), 11(a), 12(e)-(f), 13(b)-(e) and 13(g)-(n) shall survive expiration or termination of this Agreement.

  1. Miscellaneous

    1. S. Government Users.If Customer is a unit or agency of the United States Government, or if a license hereunder is acquired pursuant to a contract with any such unit or agency, Customer agrees that the Software, Third-Party Included Software and Documentation are provided with Restricted Rights:  Use, duplication, or disclosure is subject to the restrictions as set forth in the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 subparagraph (c)(1)(ii), or the Commercial Computer Software — Restricted Rights at CFR 52.227-19, subparagraphs (c)(1) and (2), as applicable. The manufacturer is Xenon Ophthalmics Inc, Inc.
    2. Dispute Resolution: If Xenon Ophthalmics Inc or Customer desires to institute legal proceedings concerning the transactions contemplated by this Agreement, such Party shall provide written notice to that effect to the other Party. The Party providing such notice shall refrain from instituting said legal proceedings for a period of thirty (30) days following the date of provision of such notice. During such period, the Parties shall attempt in good faith to amicably resolve their dispute by negotiation among their respective executive officers before instituting legal proceedings. Notwithstanding the provisions of this paragraph, either Party shall have the right to seek appropriate equitable relief, including injunctive relief, specific performance, or other appropriate relief, without posting any bond or other security, (i) in the event of an actual or threatened breach of Sections 2 or 7 or (ii) as may be otherwise necessary to avoid irreparable damage or to preserve the status quo.
    3. Tribunal: Seller, at its sole option, may elect to have submitted to binding arbitration pursuant to the rules of the American Arbitration Association any disputes with Buyer relating hereto. Buyer agrees that the exclusive venue for any arbitration or litigation relating hereto shall be in Nassau County, New York. Any federal or state court or arbitration panel sitting in Nassau County, New York shall have personal jurisdiction over Buyer in connection with any litigation or arbitration relating hereto and Buyer consents to venue in such court or tribunal.
    4. Governing Law. Governing Law, the transactions between Seller and Buyer shall be governed by the laws of the State of New York without regard to that State’s conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable. EACH OF THE PARTIES EXPRESSLY ACKNOWLEDGES AND AGREES THAT BY THIS PROVISION, EACH IS WAIVING AND RELINQUISHING ITS RESPECTIVE RIGHT TO A JURY TRIAL IN ANY AND ALL DISPUTES BETWEEN THE PARTIES RELATING TO THIS AGREEMENT OR THE SERVICES CONTEMPLATED BY THIS AGREEMENT AND THAT ANY DISPUTE IN SUCH COURTS SHALL BE A BENCH TRIAL AND SHALL NOT BE A JURY TRIAL. 
    5. Amendment and Waiver. No provision of or right under this Agreement shall be deemed waived by any act or acquiescence on the part of either Party, its agents, or employees, but only by an instrument in writing signed by an authorized officer of each Party. No waiver by either Party of any breach of this Agreement by the other Party shall be effective as to any other breach, whether of the same or any other term or condition and whether occurring before or after the date of such waiver.
    6. Independent Contractors. Each Party represents that it is acting on its own behalf as an independent contractor and is not acting as an agent for or on behalf of any Third-Party. Neither Party is granted, and neither Party shall exercise, the right or authority to assume or create any obligation or responsibility on behalf of or in the name of the other Party or its Affiliates. Each Party shall be solely responsible for compensating all its personnel and for payment of all related FICA, workers’ compensation, unemployment, and withholding taxes. Neither Party shall provide the other Party’s personnel with any benefits, including but not limited to compensation for insurance premiums, paid sick leave, or retirement benefits.
    7. Customer may not assign or otherwise transfer, in whole or in part, this Agreement without the prior written consent of Xenon Ophthalmics Inc, such consent not to be unreasonably withheld or delayed. Any assignment not in accordance with this Section 13(f) shall be null and void.
    8. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed to take effect as follows: (i) upon receipt if delivered either in person on any business day (i.e., day that is not a Saturday, Sunday or national holiday in the U.S.) in the delivery location prior to 6 pm local time; or (ii) on the next succeeding business day if delivered in person on a non-business day or after 6 pm local time; or (iii) one (1) business day after having been delivered to a recognized air courier for overnight delivery (with delivery tracking provided, signature required and delivery prepaid); or (iv) if delivered by email, when the primary recipient, by an email sent to the email address for the sender stated on the Confirmation Document or by a notice delivered by another method in accordance with this Section acknowledges having received that email, with an automatic “read receipt” not constituting acknowledgment of an email for purposes of this Section 13(g), in each case, to the Parties at the addresses set forth on the signature page (or at such other address for a Party as shall be specified by notice given in accordance with this Section 13(g)).
    9. In the event, any provision of this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other term or provision hereof. The Parties agree that they will negotiate in good faith or will permit a court to replace any provision hereof so held invalid, illegal, or unenforceable with a valid provision is as similar as possible in substance to the invalid, illegal or unenforceable provision.
    10. The Section headings are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.
    11. Word Meanings. Words such as herein, hereinafter, hereof,and hereunder refer to this Agreement as a whole and not merely to a section or paragraph in which such words appear unless the context otherwise requires. The singular shall include the plural, and each masculine, feminine and neuter reference shall include and refer also to the others unless the context otherwise requires, the word “or” is used in the inclusive sense (and/or) and the word “including” is used without limitation and means “including without limitation.”
    12. Entire Agreement. These terms and conditions, and when applicable, the terms and conditions in the parties’ purchase or distributor agreement, shall be the only terms and conditions that apply to all sales of goods by Seller to Buyer. All shipments shall be deemed to have been made pursuant to these terms and conditions of sale. Other terms or additional terms on the Buyer’s business forms or otherwise are not acceptable and not binding on the Seller. All quotes and acknowledgments or confirmations of Buyer’s purchase order are expressly made conditional on assent to the terms hereof as the complete terms of the Agreement between the parties. Buyer shall be deemed to assent to the provisions hereof if Seller receives no objection to these terms within ten days of receipt of these terms and conditions by Buyer or if any shipments of goods are accepted by Buyer hereunder, or Buyer makes any payment for goods hereunder without objection to these terms and conditions. A quote by Seller is not a binding offer and shall not form a contract between Buyer and Seller unless and until Seller sends to Buyer written acknowledgment and acceptance of Buyer’s purchase order.
    13. Rules of Construction. The Parties agree that they have participated equally in the formation of this Agreement and that the language and terms of this Agreement shall not be construed against either Party by reason of the extent to which such Party or its professional advisors participated in the preparation of this Agreement.
    14. This Agreement may be executed in one or more counterparts, including by transmission of electronic or PDF copies of signature pages, each of which shall for all purposes are deemed to be an original and all of which together shall constitute one instrument.
    15. Force Majeure. Except as otherwise provided in this Agreement, in the event that a delay or failure of a Party to comply with any obligation created by this Agreement is caused by a Force Majeure condition, that obligation shall be suspended during the continuance of the Force Majeure condition.“Force Majeure” means any event beyond the reasonable control of a Party which is not attributable to a Party’s malfeasance or failure to exercise due diligence in the management of its affairs, including fire, flood, riots, strikes, epidemics, pandemics, acts of war (declared or undeclared and including the continuance, expansion or new outbreak of any war or conflict now in existence), acts of terrorism, embargoes and governmental or regulatory authority’s actions or decrees, any change of Applicable Laws that materially affects the Party’s performance of its obligations, except payment obligations, under this Agreement.
    16. FDA: Xenon Ophthalmics Inc is officially Establishment Registration & Device Listing on the FDA website: https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfRL/rl.cfm?rid=303622.
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