Terms and Conditions

TERMS AND CONDITIONS

These Terms and Conditions (“Terms”) sets forth the terms and conditions governing your use of the PlenOptika clinical portal and mobile applications (including without limitation the QuickSee Free Companion App or other official PlenOptika software, widgets, and online services) (collectively, the “Applications”), and the QuickSee Free and QuickSee Free Pro medical devices, including, without limitation all Software (defined below), Firmware (defined below), and Hardware (defined below) incorporated therein (collectively, the “Devices”) where the Applications and Devices are together referred to herein as the “Product(s)”. Please read these Terms carefully. 

Product Availability. Please note that Products may have limited quantities, and we reserve the right to change quantities available for purchase at any time. If your order is confirmed by us and we subsequently learn that we cannot supply the ordered Product, we will cancel the order and refund your purchase price in full. We will have no other liability for cancelling an order due to limited availability. All descriptions of Products are subject to change at any time without notice. We reserve the right to discontinue any Product(s) at any time. From time to time, PlenOptika may, without any further notice to You, remotely update, upgrade, or modify the Application(s) or Software (as defined below) embedded in the Device for any reason, including to enhance the Application(s) or Devices or system functionality or stability, or to address potential security concerns. If the Application(s) or Software embedded in Devices are updated, upgraded or modified, then this Agreement will apply to such update, upgrade or modification. We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance.

Order Acceptance. All orders are subject to acceptance by PlenOptika. We reserve the right, in our sole discretion and at any time, to refuse or cancel any order you place with us or limit the quantity of your order. This includes, but is not limited to, orders made per person, per address, per order, per account, and per credit card; as well as any order that we believe is placed by an unauthorized dealer, reseller, or distributor, or with the intent to resell, reverse engineer, or otherwise misuse the Products. Once we receive your order, we will send you an email confirmation. Please note, however, that our email confirmation is not acceptance of your order. If we cancel an order, you will receive a refund of any amounts that may have been billed to you for the canceled portion of your order. We will have no other liability for cancelling an order for any reason. All offers are void where prohibited.

Right to Use. You shall use, store and handle (collectively, “Use”) the Products for your own internal use only, and only in accordance with the manual and labeling accompanying the Products (the “Documentation”) and for no other purpose or Use. You will not permit any third party to use the Products in any manner not specified in the manual or labeling accompanying the Products. You shall comply with all applicable international, federal, state, and local laws and regulations in Using the Products. You shall only use the Products if you are a licensed medical professional, medical researcher, medical student, university offering medical studies, health care organization, vision scientist, vision researcher, non-profit organization, licensed optical retailer or optician, or other individual or organization of a similar nature (collectively “Users”). PlenOptika grants to you a non-exclusive, non-transferable, restricted license to use (a) the firmware within the Product (“Firmware”), and (b) the software within the Product (the “Software”); in each case solely as incorporated in the Product and in accordance with these Terms. PlenOptika may elect to include account credentials as part of the Product.  If you are provided account credentials, you shall be responsible for maintaining and safeguarding the security of your account password and shall not share your password with any other person or allow any third party to access the Software or Applications under your account. In order to use the Software and any Applications, you shall be responsible at your own expense to access the Internet and pay any service fees associated with such access.

Applications.  PlenOptika will use commercially reasonable efforts to provide You and Your Users with access to the Application(s) during your period of use of the Application(s) for as long as PlenOptika make such Application(s) available. The Applications may not be available in all geographic areas, and the quality of your access may be impacted by factors outside of our control, such as Your internet connection and geographic location. You are responsible for all access to or use of the Application(s) via your logins. PlenOptika will use commercially reasonable efforts to make the Application(s) available for access and use over the Internet during the applicable Subscription Term, excluding any unavailability attributable to any Service Exception. You may elect to use the Application to process information, data, and content (“Your Materials”) stored locally within your environment. You shall have the sole responsibility for the accuracy, security, quality, integrity, legality, reliability, legality, and appropriateness of all Your Materials. You are solely responsible for creating backup copies of all Your Materials at Your sole cost and expense.

Use and Handling, Restrictions on Use. You are responsible for all activities conducted under Your logins, and for any Use of the Products. You will not permit any third party to use the Products in any manner not specified in these Terms. You will store and handle Products in accordance with the procedures specified in the Documentation. You shall not (or authorize or permit any third party to) Use the Products with any other device, product, source, instrument. You shall not, and shall not authorize or permit any third party to: (a) modify, copy, or otherwise reproduce the Product in whole or in part; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form, or structure of the Product or any component thereof; (c) sublicense, assign, share, timeshare, sell, rent, lease, distribute, pledge, grant a security interest in, use for service bureau purposes, or otherwise transfer, or encumber rights to the Product; (d) make the Product or any component thereof, available to anyone other than authorized users; (e) create any derivative work of the Product or any component thereof, (f) access or use the Product for the purpose of building a competitive product or service, or in order to copy ideas, features, functions, user interfaces, or graphics of the Product or any component thereof; (g) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Product; or (h) remove any proprietary notices or labels on the Product or any component thereof.  You shall strictly abide by any geographical restrictions pertaining to Product. In order to preserve scientific integrity, You many not use the Products for purposes of benchmarking or other comparative analysis intended for publication outside of Your organization without PlenOptika’s prior written consent.

You shall comply with all United States and other applicable export laws and regulations, and shall not export or re-export the Products, or any component thereof to any restricted countries. You will not use the Products to: (a) send, upload or otherwise transmit any of Your Data (defined below) or Your Materials that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) upload or otherwise transmit, display or distribute any of Your Data or Your Materials that infringes any trademark, trade secret, copyright or other proprietary or intellectual property rights of any person; (c) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to intercept communication or interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (d) interfere with or disrupt the Products or any component thereof or (e) violate any applicable law or regulation.

Proprietary Rights. All rights not expressly granted to you hereunder are reserved by PlenOptika. You acknowledge and agree that the Products are made up of several components – Application(s), Hardware, Software, and Firmware. The Application(s), Software and Firmware are licensed and not sold.  All right, title and interest in and to the Products and the Documentation, and all proprietary rights in and to all designs, engineering details, know-how, ideas, methodologies, concepts, and other technology and information pertaining to Products; and all derivatives thereof (including in each case any and all patents, copyrights, trade secret rights, trademarks, trade names, and other proprietary rights embodied therein or associated therewith) are and shall remain PlenOptika or its licensors’. The sale of the Hardware does not convey or confer upon you, your users, customers, or any third party a license, express or implied, under any patent right, copyright, or other intellectual property right of PlenOptika (including, without limitation, any right or interest in the Products), covering or relating to any use other than is consistent with the labeling thereof to which the Hardware may be put. “Hardware” means the equipment provided by PlenOptika as described in the applicable order as part of the Device.  Subject to the terms and conditions of these Terms, PlenOptika grants to You a non-exclusive, non-transferable, restricted license to use the Applications, Firmware and Software solely as incorporated in the Product and solely in connection with the operation of the Products for Your internal use.  You shall not and shall not permit any user or other party to, directly or indirectly permit use of the Products for the development of new, or the modification of existing, products or services, whether offered by You, a user or a third party, including, without limitation, any products or services that may compete with the Products.

Personal Data. You will comply with all applicable laws relating to privacy and data protection, including, to the extent applicable, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Health Information Technology for Economic and Clinical Health (HITECH) Act, and the regulations promulgated under such Acts (collectively, “Applicable Data Laws”). Without limiting the generality of the foregoing, You shall ensure that all individuals are provided adequate notice regarding use of the Products and shall obtain any and all consents and authorizations from such individuals necessary in relation to such individuals’ use of the Products in the ways contemplated by this Agreement. You will not provide any personal information (including, without limitation, any Protected Health Information, as the term is defined by Applicable Data Laws) regarding any patient or any person who is not a User to PlenOptika. You acknowledge and agree that the Products have not been designed to process or manage personal information, including, without limitation, any Protected Health Information, and PlenOptika will not have and specifically disclaims any liability that may result from Your use of the Products to collect, process or manage any Protected Health Information or other personal information, and You shall indemnify PlenOptika for any breach of Your obligations set forth in this paragraph. For the purposes of this clause, “personal information” includes any information that may be considered personal information, personal data, or words of similar import, as defined in Applicable Data Laws.

Privacy. Use of the Products is subject to PlenOptika’s privacy policy: https://plenoptika.com/privacy-policy/. PlenOptika is not a “Business Associate” as the term is defined by Applicable Data Laws, and You shall ensure that the only personal information received by PlenOptika is related to You and Your Users.  

Your Data. As between the parties, all data directly or indirectly submitted, uploaded, provided, or otherwise transmitted by you on or through the Software (“Your Data”) and all Your Materials shall be owned exclusively by you. You hereby grant to PlenOptika nonexclusive, royalty-free, right and license to use, process, and transmit Your Data in order to provide Products and services to you. You shall not provide PlenOptika with any data beyond the data described in the Privacy Terms, and you shall be responsible and liable for the violation of any laws or regulations associated with any such unauthorized transmittal. Subject to applicable laws, regulations, and the Privacy Terms, PlenOptika also may collect, develop, analyze, disclose, and use Your Data in an anonymized (i.e., de-Identified) or aggregated format, or data derived from Your Data or Your use of the Software and Products to provide and improve the Products and Software.

Pricing & Payment. PlenOptika may change its pricing at any time. Unless otherwise set forth in the applicable order, all prices are in US Dollars (USD). Prices are exclusive of applicable taxes. You are responsible for the payment of all taxes (including without limitation, withholding, excise, sales, value-added, and use taxes) and customs duties paid or payable, however designated, levied or based. You acknowledge that certain taxes will be charged at the time your order is processed.

Non-Payment. If You fail to pay any fees due under these Terms by the due date, in addition to any other rights or remedies it may have under this Agreement or by matter of Law, (i) PlenOptika reserves the right to suspend Your access to or use of the Products upon thirty (30) days written notice, until such amounts are paid in full, and (ii) PlenOptika will have the right to charge interest at a rate equal to the lesser of one and one- half percent (1.5%) per month or the maximum rate permitted by applicable Law until You pay all amounts due; provided that PlenOptika will not exercise its right to charge interest if the applicable charges are under reasonable and good faith dispute and You are cooperating diligently to resolve the issue. You will continue to incur and owe all applicable fees irrespective of any suspension. If PlenOptika commences any collection or legal action relating to Your unpaid fees, PlenOptika is entitled to recover its reasonable attorneys’ fees and other direct costs arising in connection with any collection actions or legal proceedings.

Shipping. PlenOptika will ship Products: a) DAP (Incoterms 2020), (Destination shall be reasonably accessible by a standard carrier, i.e., USPS, UPS or other carrier selected by PlenOptika) for United States of America (USA) sales and shipping costs and all associated charges will be included in the invoice; b) DAP, Boston, United States (Incoterms 2020) for all other international sales outside the USA. All Applications shall be delivered electronically. All Products will be packed for shipment and shipped in accordance with our standard practices. PlenOptika will use commercially reasonable efforts to attempt to deliver orders in a single shipment, however, PlenOptika reserves the right to make delivery by installments. Please note that many factors and events may impact the actual delivery of your order, many of which are beyond our control once the product leaves our warehouse. All delivery dates are estimates only. PlenOptika will use commercially reasonable efforts to meet the estimated delivery date, however we are not responsible or liable for any late deliveries, or failure to give notice of late deliveries. All Products are subject to U.S. and other applicable export control laws. You will be responsible for ensuring that the Product under your Order complies with applicable import laws and for paying any applicable import duties and taxes, as well as any customs clearance fees that are levied by the importing country at the time the shipment arrives in your country. Claims for shortages or errors in delivery must be made in writing to PlenOptika by emailing returns@plenoptika.com within five (5) business days after receipt of shipment. Buyer’s failure to give timely notice of the same shall constitute unqualified acceptance of such shipment. 

Warranty. The Device (excluding the Software and Firmware) is warranted solely to you against defects in materials and manufacturing for a period of twelve (12) months (or 24 or 36 months, if an extended warranty is purchased at the time of order) from the shipping date. PlenOptika warrants solely to you that Application(s), Firmware and Software will substantially conform with the applicable Documentation for a period of ninety (90) days from the shipping date. Your sole and exclusive remedy for any breach of the foregoing warranties shall be for PlenOptika to repair or replace, at its election, the defective Device, Application, Software or Firmware (each as applicable); provided that you comply with the return policy stated on the invoice. The warranties exclude any malfunctions or damage resulting from (a) Your failure to comply with the Documentation; (b) violation of the rights and restrictions on use; (c) any alteration, modification, or improper storage, handling, transporting, use, or maintenance of any part of the Products by anyone other than PlenOptika or its service or supply contractors; (d) any external force or unusual stress such as building structural deficiency, power surge, fluctuation or failure, or climate control failure; or (e) any actions beyond PlenOptika’s reasonable control. PlenOptika reserves the right to use “good-as-new” parts in servicing the Products. 

Return Policy.

Standard Returns. During a period of seven (7) days commencing on the date of delivery of the Device, you shall be entitled to return the Device provided that you have completed training with PlenOptika personnel or representatives regarding use of the Products. . Please contact PlenOptika before returning any Device by emailing returns@plenoptika.com. PlenOptika will not accept the return of any Device if: (i) PlenOptika has not approved the return in advance and provided you with a Returned Materials Authorization number (“RMA”), and (ii) such return is not initiated within 7 days from the date of delivery of the Product. All returns must be packaged as instructed by PlenOptika and labeled with the assigned RMA number, with all contents, undamaged and in good working condition with no alterations. Devices are to be returned only in the country or region in which they were originally purchased. You shall be required to pay shipping charges for the delivery of the returned Devices. Refunds shall be less any promotional discounts and all applicable restocking fees. A restocking fee of $400 shall be charged for any return of the QuickSee Free Device. A restocking fee of $575 shall be charged for any return of the QuickSee Free Pro Device. If you do not return the Device as described above, or if you return the Device in a damaged or altered condition, we will not provide any refund.

Returns for Warranty Claims. During the warranty period (see Product Warranty section for information on the warranty period), PlenOptika will repair or replace (at its option) defective or nonconforming Device covered by the warranty described above; provided that Buyer returns the Device within ten (10) business days of issuance of an RMA number. PlenOptika reserves the right to refuse any return of Devices during the warranty period that are not defective or nonconforming, not covered by the warranty, or whose defects were caused by improper use, storage, or handling. If PlenOptika does not repair or replace the defective or non-conforming Device, the refunded amount shall be the purchase price less any shipping fees, taxes, royalties or other payments made by PlenOptika, and any amount commensurate with any damage to the defect enacted by You.  A restocking fee will not be charged for any refund issued pursuant to this Product Warranty. All refunds issued pursuant to this warranty will be processed within ten (10) business days of the date of notice from PlenOptika that it will not repair or replace the Device.

No fees or payments of any kind will be refunded by PlenOptika under any circumstances until the Devices have been received by PlenOptika.

Disclaimers. EXCEPT FOR THE LIMITED WARRANTIES STATED IN THE WARRANTY PARAGRAPH ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS, ALL PARTS (INCLUDING REPLACEMENT PARTS THERETO) AND COMPONENTS THEREOF ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. PLENOPTIKA DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR TRADE USAGE. PLENOPTIKA DOES NOT WARRANT THAT OPERATION OF ANY COMPONENT OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ALL DEFECTS WILL BE REPAIRED, AND PLENOPTIKA HAS NO RESPONSIBILITY OR LIABILITY ARISING FROM OR RELATED TO: (I) THE MISUSE, ABUSE, IMPROPER, OR UNAUHORIZED USE OF, OR INABILITY TO USE, THE PRODUCT; OR (II) THE USE OF OTHER EQUIPMENT OR PRODUCTS NOT MANUFACTURED BY OR SOLD BY PLENOPTIKA. PLENOPTIKA IS NOT RESPONSIBLE OR LIABLE FOR THE DELETION, CORRECTION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO TRANSMIT, STORE OR MAINTAIN ANY OF YOUR DATA, OR ANY OTHER DATA OR INFORMATION.  YOU ARE SOLELY RESPONSIBLE FOR SEPARATELY BACKING UP AND SECURING ALL YOUR DATA AND YOUR MATERIALS. You ARE solely responsible for determining whether use of the ProductS OR ANY COMPONENT THEREOF is permissible under applicable law and regulations, including, without limitation, state licensing, medical, and pharmacy laws, and is liable for any violation of the same. 

PLENOPTIKA AND ITS PRODUCTS DO NOT GIVE MEDICAL ADVICE, PROVIDE DIAGNOSISES, OR PRESCRIBE MEDICATION. USE OF THE PRODUCT DOES NOT SUBSTITUTE FOR THE PROFESSIONAL JUDGEMENT OF HEALTHCARE PROVIDERS IN DIAGNOSING AND TREATING PATIENTS. YOU ACKNOWLEDGE THAT YOU ARE SOLELY RESPONSIBLE FOR VERIFYING THE ACCURACY OF PATIENT INFORMATION (INCLUDING, WITHOUT LIMITATION, BY OBTAINING ALL APPLICABLE PATIENTS’ MEDICAL AND MEDICATION HISTORY (E.G., ALLERGIES), AND FOR ALL MEDICAL DECISIONS OR ACTIONS WITH RESPECT TO THE MEDICAL CARE, TREATMENT AND WELL-BEING OF YOUR PATIENTS, INCLUDING, WITHOUT LIMITATION, ALL OF YOUR ACTS OR OMISSIONS IN TREATING THE APPLICABLE PATIENT. ANY RELIANCE BY YOU OR YOUR USERS UPON THE PRODUCTS PROVIDED BY PLENOPTIKA SHALL NOT DIMINISH THAT RESPONSIBILITY. You acknowledge that the broad applicability of the Products may make them useful in applications for which they were not expressly designed, and which may involve dangers to human health or safety; and you agree not to use the Products for any such purpose.

Limitation of Liability.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PLENOPTIKA BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LOST PROFITS, LOST DATA, OR LOST BUSINESS OPPORTUNITIES OR ANY OTHER INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR RELIANCE DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. THESE LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER PLENOPTIKA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE TOTAL CUMULATIVE LIABILITY OF PLENOPTIKA TO YOU FOR ANY AND ALL CLAIMS AND DAMAGES UNDER THESE TERMS, WHETHER ARISING BY STATUTE, CONTRACT OR OTHERWISE, WILL NOT EXCEED THE AMOUNTS PAID BY YOU TO PLENOPTIKA FOR THE PRODUCTS WHICH FORM THE SUBJECT OF THE CLAIM IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE CLAIM. THE PROVISIONS OF THESE TERMS ALLOCATE RISKS BETWEEN THE PARTIES. THE PRICING SET FORTH HEREIN REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.

Indemnification. You agree to indemnify, hold harmless and defend PlenOptika and its officers, directors, and employees against any and all liability, damages, judgments, awards, or costs of defense (including without limitation reasonable attorneys’ fees and expenses of litigation or settlement) in connection with any claims, suits, or proceedings arising out of or relating to your use of the Products, Your Materials, and/or Your Data, including, without limitation: negligence or willful misconduct, or use of the Products  in violation of any applicable law, regulation, or court or administrative order. You shall not settle or dispose any matter in any manner which could negatively affect the rights or liability of PlenOptika without the PlenOptika’s prior written consent. 

Confidentiality. “Confidential Information” means non-public information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, or to which the other party may have access, or any other information which a reasonable person would consider confidential and/or which is marked “confidential” or “proprietary” or some similar designation by the disclosing party or which is of a confidential nature even though not specifically so designated. Confidential Information will not, however, include any information that (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party, as shown by the receiving party’s files and records; (iv) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.  Each of the parties agrees: (a) not to disclose any of the other party’s Confidential Information to any third parties except as mandated by law and except to those agents, advisors, or subcontractors who have a reasonable need to access such information, and who agree to be bound by confidentiality obligations no less stringent than those set forth in these Terms; (b) not to use any of the other party’s Confidential Information for any purposes except carrying out such party’s rights and responsibilities under these Terms; and (c) to keep the other party’s Confidential Information confidential using the same degree of care such party uses to protect its own confidential information; provided, however, that such party shall use at least reasonable care. If a party is required by law to disclose the other party’s Confidential Information, it will promptly notify the other party (providing notice prior to disclosure if permitted by law) and provide reasonable assistance in seeking protection of such Confidential Information. Upon termination or expiration of these Terms, the receiving party will promptly return or destroy all of the disclosing party’s Confidential Information in its possession.  This section shall survive termination. 

Termination. Either party may terminate these Terms for material breach by the other party by providing the other party with thirty (30) days’ notice of such material breach, such termination to be effective at the conclusion of such thirty (30) day period, if the material breach is not cured within such thirty (30) day period.  Upon any termination or expiration of this Agreement, (i) all applicable licenses and rights granted hereunder to the Applications, Software and Firmware shall terminate and PlenOptika shall no longer provide the Applications, Software or Firmware (or updates thereto) to you, and (ii) if such termination is due to your material breach, you shall cease using the Products and promptly return the Products to PlenOptika, at your expense. Except as expressly provided herein, termination of these Terms is a non-exclusive remedy for breach and will be without prejudice to any other right or remedy of such party.  All provisions of these Terms which by their nature are intended to survive the termination or expiration of these Terms shall survive such termination. 

Miscellaneous. These Terms and the associated invoice contain the entire agreement and understanding between the parties and supersedes all prior and contemporaneous agreements and communications, whether oral or in writing (executed or not), between the parties with respect to the subject matter of this agreement. PlenOptika shall have full right to make substitutions and modifications in the specifications or composition of Products or any components thereof. PlenOptika may change these Terms at any time. Nothing in these Terms shall confer, or be deemed to confer, any rights or benefits to any third party. No representations or statements, other than those expressly set forth herein, were relied upon by the parties in entering into these Terms. These Terms shall be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts without reference to conflicts of law principles and the parties expressly disclaim the United Nations Convention on the International Sale of Goods. Any dispute arising out of these Terms shall be brought in, and the parties’ consent to personal and exclusive jurisdiction of and venue in, the state and federal courts within Suffolk County, Massachusetts. Failure or delay by either party in exercising any right hereunder shall not operate as or be deemed a waiver of such right or of any other right hereunder, except for violations which, after discussion and mutual agreement by the parties, are waived in writing. Except for payment obligations, neither party shall be liable for damages for any delay arising out of causes beyond their reasonable control, including without limitation acts of God, labor disputes, riots, wars, and component shortages. If any provision of these Terms is held to be invalid or unenforceable, the remainder of these Terms shall continue in full force and effect and will be interpreted to reflect the original intent of the parties. Neither these Terms nor any interest herein may be assigned or otherwise transferred (by operation of law or otherwise) in whole or in part by you.