ATTACHMENT 1

PlenOptika General Terms and Conditions of Sale

 

  1. Effective Date of Terms and Conditions; Modification; PlenOptika Website. These Terms and Conditions of Sale and any Supplemental Terms and Conditions, the Business Associate Agreement, the Privacy Policy, the Sales & Returns Policy, and the Website Terms of Use Order(collectively the “Terms”) shall be effective for any order(s) placed by a buyer (“Buyer”) with PlenOptika, Inc. (“PlenOptika”) via this website (each an “Order”). The effective date of the Terms is the date Buyer places the Order. Buyer acknowledges and agrees that these Terms shall supersede all prior terms and conditions, whether or not signed or otherwise accepted by the parties, regarding the purchase by Buyer and sale by PlenOptika of all PlenOptika products (QuickSee® and QuickSee Flip®) hereafter referred to as “Product”, the firmware embedded within the Products (“Firmware”) and any software provided by PlenOptika for use with the Products (“Software”) and any such prior terms and conditions shall be of no force and effect as of the Effective Date of any Order referencing these Terms. PlenOptika reserves all rights to further modify these Terms from time to time (the “Modified Terms”) either upon written notification to Buyer by electronic mail or by posting any changes on the PlenOptika website (www.PlenOptika.com) (the “PlenOptika Website”). THE MODIFIED TERMS SHALL BE EFFECTIVE FOR ALL ORDERS PLACED BY BUYER WITH PLENOPTIKA ON OR AFTER THE EFFECTIVE DATE SET FORTH THEREIN. BUYER SHALL BE DEEMED TO HAVE ACCEPTED THESE TERMS AND ANY MODIFIED TERMS UPON BUYER CONTINUING TO USE THE PLENOPTIKA WEBSITE AND/OR PLACING A ORDER WITH PLENOPTIKA BY ANY METHOD AFTER THE APPLICABLE EFFECTIVE DATE. BUYER AGREES THAT BY ACCESSING OR USING ANY PART OF THE WEBSITE OR PLACING ANY ORDER(S), BUYER AGREES THAT BUYER HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THESE TERMS AND ANY MODIFIED TERMS, INCLUDING THE DISPUTE RESOLUTION PROCEDURES. IF BUYER DOES NOT AGREE TO BE SO BOUND, BUYER SHOULD NOT ACCESS, OR USE THE WEBSITE OR PLACE ANY ORDER(S).

 

  1. Use and Handling of Buyer shall use the Product only as specified in the manual and labeling accompanying the Products, and for no other purpose or use.  Buyer shall not permit any third party to use the Products in any manner not specified in the manual or labeling accompanying the Product (the “Documentation”).  Buyer shall store and handle Products in accordance with the procedures specified in the Documentation. Buyer shall not use and shall not permit any third party to use the Products purchased under these Terms with any other device or product and shall not use or permit any third party to use any other source, instrument, or device with the Products purchased under these Terms.  Buyer shall comply with all applicable international, federal, state, and local laws and regulations in using or permitting the use of, storing, and handling the Products.  Buyer shall only use the product if Buyer is an Authorized User.  For the purposes of this provision, an “Authorized User” is a licensed medical professional, medical researcher, medical student, university offering medical studies, health care organization, vision scientist, vision researcher, nob-profit organization, or other individual or organization of a similar nature.  If Buyer is unsure if Buyer is an Authorized User, Buyer may contact PlenOptika at sales@plenoptika.com.
  2. Firmware: Firmware is licensed and not sold to Buyer. Subject to the Terms, PlenOptika grants to Buyer a non-exclusive, non-transferable, restricted license to use the Firmware solely as incorporated in the Product and solely in connection with the operation of the Product as described in the Documentation and any Software solely for Buyer’s internal use.
  3. Software: Software is licensed and not sold to Buyer. Subject to the Terms, PlenOptika grants the Buyer a non-exclusive, non-transferable, restricted license to use the Software solely as incorporated in the Product and solely in connection with the operation of the Product as described in the Documentation and any Firmware solely for Buyer’s internal use.  Buyer shall be responsible for maintaining and safeguarding the security of its account passwords and shall not share its passwords with any other person or allow any third party to access the Software under Buyer’s account.  In order to use the Software, Buyer shall be responsible at Buyer’s own expense to access the Internet, either directly or through devices that access Web-based content and pay any service fees associated with such access. Buyer agrees: (a) that only authorized users are permitted to use the Software; (b) that it is responsible for authorized users’ actions or failures to act in connection with activities contemplated under the Terms; and (c) to otherwise take all commercially reasonable steps to protect the Software from unauthorized use and/or access.  For purposes of the Terms, a “user” shall mean an officer, employee, or any individual acting solely on behalf of Buyer.
  4. Restrictions on Use. Except as expressly permitted by the Terms, Buyer shall not, and shall not permit others to: (a) modify, copy, or otherwise reproduce the Product, Firmware, or Software in whole or in part; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form, or structure of the Firmware or Software; (c) sublicense, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes, or otherwise transfer the Firmware or Software or Buyer’s right to use the Firmware or Software; (d) create any derivative work of the Product, Firmware or Software, (e) access the Product, Firmware, or Software in order to build a product or service using similar ideas, features, functions or graphics of the Product, Firmware, or Software, or copy any ideas, features, functions or graphics of the Product, Firmware, or Software; or (f) remove any proprietary notices or labels on the Product, Firmware, or Software. Buyer shall strictly abide by any geographical restrictions pertaining to Product, Firmware, and Software sale, marketing, export, testing, and any kind of Product use outside of the designated area expressly permitted by PlenOptika. All rights not expressly granted to Buyer are reserved.
  5. Proprietary Rights. PlenOptika retains all proprietary rights in and to all designs, engineering details, know-how, ideas, methodologies, concepts, and other technology and information pertaining to Product. Except as expressly set forth herein, the sale of Product ordered hereunder does not grant to, convey, or confer upon Buyer or Buyer’s customers, or upon anyone claiming under Buyer, a license, express or implied, under any patent right, copyright, or other intellectual property right of PlenOptika covering or relating to any use other than is consistent with the labeling thereof to which the Product may be put. Buyer acknowledges and agrees that as between PlenOptika and Buyer, all right, title and interest in and to the Firmware and Software and all derivatives thereof (including 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’, and these Terms in no way convey any right or interest in the Firmware and Software other than a limited license to use it in accordance herewith.
  6. Health Insurance Portability and Accountability Act (HIPAA). PlenOptika may receive Protected Health Information (“PHI”) from Buyer from time to time pursuant the Business Associate Agreement.
  7. Buyer By submitting, uploading, providing, transmitting, or otherwise making available data on or through the Software, including via any third-party services, Buyer hereby grants to PlenOptika a nonexclusive, royalty-free, worldwide, perpetual, irrevocable, transferable, and sub-licensable right and license to collect, access, use, process, transmit, display, publish, adapt, and modify the data as required for PlenOptika and its subcontractors and service providers to provide, improve, and enhance the Firmware and Software, respond to service or technical problems, and to operate its business (“Buyer Data”). Buyer acknowledges and agrees that PlenOptika may collect, analyze, disclose and use anonymized or aggregated Buyer Data, or data derived from Buyer Data, as well as data about Buyer’s or its users’ access and use of the Product, Firmware, and Software, for any purpose (subject to PlenOptika’s compliance with applicable law and confidentiality obligations to Buyer and any patients), including for the purpose of providing, operating, analyzing, and improving the Software, Firmware, and Product. PlenOptika may collect and use certain data and information, including de-identified patient data, in accordance with the Business Associate Agreement and may disclose such data to certain of its subcontractors provided that PlenOptika shall ensure that its subcontractors comply with any applicable obligations set forth in these Terms.
  8. Payment Terms: Payments on the website are made via credit card as described here. All amounts payable under the Terms are denominated in United States dollars, and Buyer will pay all such amounts in United States dollars unless expressly agreed otherwise in writing.  The Buyer is responsible for the payment of all taxes applicable to Buyer’s purchase of Product, Software, Firmware, and any related services (including without limitation, withholding, excise, sales, value-added, and use taxes) and customs duties paid or payable, however designated, levied or based, but exclusive of taxes based on the PlenOptika’s net income, unless Buyer provides a certificate of tax exemption to PlenOptika.
  1. Product Pricing and Orders. Prices for Product, Software, Firmware, and any related services are listed, unless otherwise expressly stated by PlenOptika, FCA, PlenOptika Facilities (Incoterms 2010) and will be the amounts specified in PlenOptika’s then-current price list in effect at the time the order is accepted by PlenOptika.  PlenOptika reserves the right to change its prices at any time.

 

  1. Delivery Terms. Unless otherwise expressly stated in the PlenOptika sales quote PlenOptika will ship Product: a) DAP (Incoterms 2010), (Destination shall be reasonably accessible by a standard carrier, i.e., USPS or UPS otherwise special terms shall be mutually agreed between Buyer and PlenOptika) for United States of America (USA) sales and shipping costs and all associated charges will be included on Buyer’s checkout page; b) FCA, Madurai, India (Incoterms 2010) for all other international sales outside the PlenOptika will use commercially reasonable efforts to meet the delivery dates quoted or acknowledged but will not be liable for any failure to meet such dates and Buyer’s sole remedy will be to cancel the delayed order to the extent that the delivery is more than Fifteen (15) business days late.  PlenOptika will attempt to deliver orders in a single shipment. However, PlenOptika reserves the right to make delivery by installments.
  2. Substitutions and Modifications. PlenOptika shall have full right to make substitutions and modifications in the specifications or composition of Product, Firmware, or Software provided that such substitutions or modifications will not materially adversely affect overall Product performance.
  3. Warranty: Unless otherwise expressly stated in the PlenOptika Order, Product is warranted only to Buyer (and not any third party) at the single location set forth in the sales quote against defects in materials and manufacturing for a period of twelve (12) months from the shipping date. PlenOptika warrants to the Buyer that all Firmware as provided hereunder for use in conjunction with the Product will substantially conform with PlenOptika’s material published specifications for such Firmware for a period of ninety (90) days from the shipping date. As Buyer’s sole and exclusive remedy for any breach of the foregoing warranties by PlenOptika, PlenOptika will repair or replace, at its election, Product or Firmware (or both) discovered to be defective during the applicable warranty period and returned by the Buyer in accordance with PlenOptika’s return policy set forth in Section 15 below.  This warranty does not cover repair or replacement of any Product that malfunctions because of or is otherwise damaged as a result of (a) Buyer’s failure to comply with the Documentation or any other provisions and instructions contained in the manual or labeling accompanying the Product, Firmware, or Software; (b) Buyer or its permitted users combining the Product, Firmware, or Software with a third party’s product or an incompatible PlenOptika product; (c) any alteration, modification, or improper storage, handling, transporting, use, or maintenance of any part of the Product, Firmware, or Software 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) actions beyond PlenOptika’s reasonable control.
  4. Returns: PlenOptika reserves the right to refuse any return of Product that are not defective or nonconforming, not covered by the warranty described above in Section 14, or whose defects were caused by improper use, storage, or handling. Buyer shall contact PlenOptika before returning any Product for any reason. Buyer shall not have the right to return product to the PlenOptika without PlenOptika’s prior consent and without having obtained a Returned Materials Authorization number (“RMA”) from PlenOptika by emailing: returns@plenoptika.com. All returns must be packaged as instructed by PlenOptika and labeled with the assigned RMA number. PlenOptika will repair or replace (at its option) defective or nonconforming Product covered by the warranty described in Section 14 that are returned to PlenOptika within Ten (10) business days of issuance of an RMA number. Claims for shortages, errors in delivery, or defects apparent on visual inspection must be made in writing to PlenOptika 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. Product returned must be in accordance with the PlenOptika’s Shipping and Returned Materials Authorization Procedure.
  5. Warranty Disclaimer. PlenOptika’s only warranty obligation to Buyer with regard to the Product, Firmware, Software and any services provided herein and Buyer’s sole and exclusive remedy in connection with such warranty is described in Section 14 above.  PlenOptika reserves the right to use “good-as-new” parts in servicing Product.  EXCEPT FOR THE LIMITED WARRANTY STATED IN SECTION 14 ABOVE, THE PRODUCTS, ALL PARTS (INCLUDING REPLACEMENT PARTS THERETO AND ALL FIRMWARE AND SOFTWARE ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND PLENOPTIKA, ON BEHALF OF ITSELF AND ITS AFFILIATES AND THEIR RESPECTIVE SERVICE AND SUPPLY CONTRACTORS, SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE TITLE, NON-INFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR TRADE USAGE. NO WARRANTY OF ANY KIND (EXPRESS, IMPLIED, STATUTORY OR OTHERWISE) IS PROVIDED BY PLENOPTIKA TO ANY THIRD PARTY.  In jurisdictions that do not permit a disclaimer of implied warranties, such warranties shall expire 90 days after the date of purchase of the relevant Product.  No oral or written information or advice given by PLENOPTIKA or its employees shall create a warranty or in any way increase the scope of the limited warranties set forth, and Buyer may not rely on any such information or advice.

NOTWITHSTANDING ANYTHING TO THE CONTRARY STATED HEREIN, PLENOPTIKA WILL NOT BE RESPONSIBLE OR LIABLE FOR THE DELETION, CORRECTION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO TRANSMIT, STORE OR MAINTAIN ANY BUYER DATA, OR ANY OTHER DATA OR INFORMATION.  BUYER IS SOLELY RESPONSIBLE FOR SEPARATELY BACKING UP AND SECURING ALL BUYER DATA.

BUYER ACKNOWLEDGES THAT IT IS 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 BUYER’S PATIENTS, INCLUDING, WITHOUT LIMITATION, ALL OF BUYER’S ACTS OR OMISSIONS IN TREATING THE APPLICABLE PATIENT. ANY RELIANCE BY BUYER OR ITS USERS UPON THE PRODUCT, FIRMWARE, SOFTWARE AND ANY RELATED SERVICES PROVIDED BY PLENOPTIKA SHALL NOT DIMINISH THAT RESPONSIBILITY.

Buyer acknowledges that the broad applicability of the Product, Firmware, and Software may make them useful in applications for which they were not expressly designed, and which may involve dangers to human health or safety.   Buyer agree not to use the Product, Firmware, or Software for any such purpose.

Buyer acknowledge and agree that use of the Software is on an “AS IS” basis without any warranty of any kind as to compliance with applicable law or regulations.  Buyer is solely responsible for determining whether use of the Software 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.

  1. Limitation of Liability. IN NO EVENT SHALL PLENOPTIKA OR ANY OF ITS AFFILIATES 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.  IN ANY EVENT, THE TOTAL CUMULATIVE LIABILITY OF PLENOPTIKA (INCLUDING ANY OF ITS AFFILIATES, SUPPLIERS, LICENSORS AND/OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS) TO BUYER AND/OR ANY THIRD PARTY FOR ANY AND ALL CLAIMS AND DAMAGES UNDER THESE TERMS, WHETHER ARISING BY STATUTE, CONTRACT OR OTHERWISE, WILL NOT EXCEED THE AMOUNTS PAID BY BUYER TO PLENOPTIKA FOR THE PRODUCTS, FIRMWARE, OR SOFTWARE WHICH FORM THE SUBJECT OF 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.

 

  1. Infringement Indemnification. PlenOptika shall  defend and/or settle all suits or proceedings instituted against Buyer to the extent based on any third party claim that Products, Firmware, or Software sold under the Terms  constitute an infringe­ment of any U.S. patent or copyright and PlenOptika will pay damages finally awarded against Buyer in such suits or proceed­ings; provid­ed, how­ever, that Buyer (i) gives prompt written notice to PlenOptika of such suits or pro­ceedings, (ii) gives PlenOptika sole control over the defense and/or settlement of the same and (iii) gives PlenOptika all needed informa­tion, assistance, and authority to enable the PlenOptika to take the foregoing action.

Notwithstanding the above, PlenOptika shall not be obligated to indemnify or be liable or responsible for costs and damages if the infringement arises out of (a) Buyer’s contributory infringement; (b) the combination or incorporation of one or more Products, Firmware, or Software with any other products or components; (c) any use of the Product, Firmware, or Software in violation of the Terms; (d) any use of the Product, Firmware, or Software for a purpose or application not expressly contemplated in the Documentation ; or (e) modifications of the Products, Firmware, or Software unless made by PlenOptika.  PlenOptika’s obligations hereunder shall not apply to any infringement occurring after Buyer has received notice of such proceeding or other communication alleging the infringement unless the PlenOptika has given written permission for such continuing use. If the Product, Firmware, or Software are enjoined or PlenOptika reasonably believes the Products, Firmware, or Software may infringe any U.S. patent or copyright, PlenOptika may, at its option, either (i) secure for Buyer the right to continue using the Product, Firmware, or Software by procuring for the Buyer a license, or by some other means, (ii) at PlenOptika’s own expense, replace the Product, Firmware, or Software with non-infringing items, or (iii) remove the enjoined Product, Firmware, or Software and provide Buyer with a pro rata refund of the sums paid by Buyer to PlenOptika for the infringing Product, Firmware, or Software (as depreciated over a Five (5) year straight line basis from the date of initial delivery) upon Buyer’s return of the Product, Firmware, or Software to PlenOptika.  THE FOREGOING STATES PLENOPTIKA’S ENTIRE LIABILITY AND OBLIGATION (EXPRESS, STATUTORY, IMPLIED OR OTHERWISE) WITH RESPECT TO INTELLECTUAL PROPERTY INFRINGEMENT OR CLAIMS THEREFORE.  PLENOPTIKA HAS NO OBLIGATION TO INDEMNIFY ANY THIRD PARTY.

  1. Buyer Buyer agrees 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 third party claims, suits, or proceedings arising out of or relating to Buyer’s use of the Products, Firmware, Software, or Buyer Data, unless caused solely by the gross negligence or willful misconduct of PlenOptika.  Buyer 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.

 

  1. 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 of these Terms.

 

  1. Export Restrictions. Buyer acknowledge that the laws and regulations of the United States may restrict the export and re-export of certain commodities and technical data of United States origin. Buyer shall comply with all applicable export laws and regulations (including, without limitation United States export laws and regulations), and shall not export or re-export the Products, Firmware, or Software in any restricted countries.
  2. Software Restrictions. Neither Buyer nor its users shall use the Software to: (a) send, upload or otherwise transmit any Buyer Data 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 Buyer Data 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 interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (d) interfere with or disrupt the Product, Firmware, or Software; or (e) violate any applicable law or regulation.
  3. Mobile Application for Apple Devices. If any when PlenOptika offers an application for Apple (as defined below) devices, PlenOptika grants you a non-transferable, non-exclusive license to download, install and use the mobile application on a mobile device that you own or control, subject to these Terms and any additional terms and conditions governing the use of the mobile application imposed by your mobile service provider. If there is a conflict between these Terms and the terms imposed by your mobile service provider, the more restrictive provisions control. You acknowledge that your rights to access and use the mobile application is between you and PlenOptika and not with Apple Inc. or its affiliates (“Apple”) and that Apple has no responsibility for the mobile application or its content.  Your use of the mobile application on Apple devices must comply with the Apple App Store Terms of Service. You acknowledge that Apple has no obligation to furnish any maintenance or support services for the mobile application. If the mobile application fails to meet the limited warranty set forth in these Terms, you may notify Apple and Apple will, as your sole remedy for such failure, refund the purchase price paid to Apple for the mobile application to the maximum extent permitted by applicable law. Apple will have no other obligation to you for breach of the warranty applicable to the mobile application. Each party acknowledges that Apple is not responsible for addressing your claims or the claims of any third party relating to the mobile application, including (1) any product liability claim; (2) any claim that the mobile application fails to conform to any applicable legal or regulatory requirement; and (3) any claim arising under any consumer protection or similar legislation. Each party acknowledges that, in the event of a third-party claim that the mobile application or your use of the mobile application infringes any third party’s intellectual property rights, PlenOptika and not Apple is solely responsible for its investigation, defense, settlement and discharge to the extent required by these Terms. Each party agrees that Apple and its subsidiaries are third party beneficiaries to these Terms as it relates to your use of the mobile application and that, upon your acceptance of these Terms, Apple has the right (and will be deemed to have accepted the right) to enforce these Terms against you (with respect to the mobile application) as a third-party beneficiary.
  4. Miscellaneous: The  Terms contain the entire agreement and understanding between the parties on the subject of the sale of listed Product, Firmware, and Software and supersedes all prior and contemporaneous agreements and communications, whether oral or in writing, between the parties with respect to the subject matter of this sale Terms. Nothing in the 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. No modification or waiver of, addition to, or deletion from, the terms of these terms shall be effective unless reduced to writing and signed by duly authorized representatives of the parties hereto. The Terms shall be governed by and interpreted in accordance with the laws of the State 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 the 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 the Order associated with these Terms nor any interest herein may be assigned or otherwise transferred (by operation of law or otherwise) in whole or in part by Buyer. Any notice, approval, request, authorization, direction, or other communication governing any Order shall be given in writing and shall be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered personally to the party to whom the same is directed; (ii) for U.S. One (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt, or (iii) Five (5) business days after the mailing date whether or not actually received, if sent by U.S. certified mail, return receipt requested, postage and charges pre-paid or any other means of rapid mail delivery for which a receipt is available, to the address of the party set forth above.  Either party may change its address by giving written notice of such change to the other party.