TERMS OF SERVICE

Last Update: October 30, 2018

This website is operated by PlenOptika, Inc. (“PlenOptika”). The terms “we”, “us” and “our” also refer to PlenOptika. These terms of service (“Terms”) govern your use of the website and our online store, (collectively, the “Website”) and the PlenOptika products and services (the “Products”) should you purchase them from the Website. We provide the Products (if you purchase them) and the Website to you conditioned upon your acceptance of the Terms.  Any new features or tools which may be added to the Products or the Website from time to time are also subject to these Terms.

Please read these Terms carefully before accessing or using the WEBSITE OR PURCHASING THE PRODUCTS. You must accept these Terms (including any additional terms and policies referenced here and/or available by hyperlink) in order to use the Website or use or buy the Products. These Terms apply to all users of the Website. BY USING THE WEBSITE, YOU AGREE TO THESE TERMS. If you do not agree to THESE TERMS, DO not use THE WEBSITE. BY PURCHASING THE PRODUCTS, YOU AGREE TO THESE TERMS.  IF YOU DO NOT AGREE TO THESE TERMS, DO NOT PURCHASE THE PRODUCTS.

We reserve the right, in our sole discretion, to update, modify, change or replace any portion of these Terms at any time by posting updates and/or changes to the Website. You should review the most current version of the Terms periodically on the Website (it is your responsibility to check for changes). If we update the Terms, we will include a notice that the terms have been updated on our Website. Your continued use of the Website following the posting of any changes signifies that you accept the changes. If you do not agree to the changes, you should discontinue your use of the Website.

These Terms are divided into several parts:

Part 1 applies to access to and use of the Website.

Part 2 applies to Product purchases made via our online store on the Website

Part 3 applies to access to and use of our Products, if you purchase them from the Website.

Part 4 applies to the Website (including the online store) and our Products.

PART 1 – USE OF THE WEBSITE

This Part 1 applies to your use of the Website, including your use of the online store.  All use of the term “Website” in this Part 1 and in these terms in general shall be deemed to include both the Website and the online store accessible via the Website.

SITE USE, CONTENT & OWNERSHIP

The Website, and the products and services offered on the Website are available to users who are over the age of 13. By using this Website, you represent and warrant that you are of legal age to form a binding contract with us and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Website.

Subject to your compliance with these Terms, you are granted a limited, revocable, non-exclusive, non-transferable, non-sub licensable license to access and use the Website for personal use only.  Our Website and the content available on our Website (“Content”) are protected by various intellectual property laws which may include patent, copyright, trade secret, trademark, and trade names protection. You agree to respect all copyright and other legal notices, information, and restrictions on the Website and contained in any Content accessed through the Website. You agree not to (or permit a third party to) change, translate, reverse engineer, create derivative works, reproduce, duplicate, transfer, mirror or frame, copy, sell, resell, lease or otherwise exploit the Website, Content, or any portion thereof, without express written permission by us. Other than as expressly set forth in these Terms, no licenses or rights are granted to you by implication, estoppel, or otherwise.  You acknowledge that your unauthorized use of the Website or Content is prohibited, may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability.

We reserve the right, in our sole discretion, to update, modify, change or replace any portion of Website or Content, at any time, without advance notice or liability.

Additional terms might apply to some Website features. All such terms are in addition to (and do not replace) these Terms. Please be sure to read any such additional terms carefully. and in the event of a conflict, the additional terms will control over these Terms. Resolutions are decided by us in our sole discretion, and all our determinations are final.

ACCEPTABLE USE & RESTRICTIONS

You may not use the Website or Content for any illegal, unlawful or unauthorized purpose, or to solicit others to perform or participate in any unlawful acts. In the using the Website, you warrant that you will not violate any international, federal, state or local laws, rules, regulations or ordinances. You must not upload or transmit any worms, viruses, bots, Trojans, back doors, or any malicious or destructive code of any kind, or any code that will affect the functionality or accessibility of the Website.  You will not use the Website or Content to harass, abuse, bully, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, disability, or disease, or to attempt to do harm to any individuals.  You will not use the Website or Content to (a) submit false or misleading information (such as using a false e-mail address or pretending to be someone other than yourself); (b) collect or track the personal information of others; (c) spam, phish, pharm, pretext, spider, crawl, or scrape; (d) to interfere with or circumvent the security features of the Website. You will not frame or utilize framing techniques to enclose any Content (including images, text, or page layout).  You will not use the Website or Content in connection with any (i) activity that is fraudulent, misleading, inaccurate, dishonest, impossible or imitating any other person; (ii) activities with, in, or involving countries, regions, governments, persons, or entities that are subject to U.S. and other economic sanctions under applicable law; or (iii) any other activity that we may deem in our sole discretion to be unacceptable. You will not use the Content in such a manner that suggests an unauthorized association with us. A breach or violation of any Terms may result in an immediate suspension or termination of your ability to access the Website and Content.  We may immediately suspend or terminate the general availability of the Website and Content in whole or in part, for any reason, in our sole discretion, without advance notice or liability.

THIRD PARTIES

Certain aspects of our Website may require you to register with, and agree to the terms of, third party service providers in order to utilize such Website.  For example, Shopify provides our payment services (among other things). Shopify Pay Services and other services provided by Shopify are subject to Shopify’s terms and conditions, and you agree to comply with the terms and conditions set forth at https://www.shopify.com/legal/terms and https://pay.shopify.com/en/tos-privacy-policy#terms-of-service.  Please review these terms and conditions, and please note that PlenOptika is not a party to these terms and conditions.

We may also provide links or other access to other third party service providers as a convenience to you.  Any use by you of the services of any third party service providers is at your sole risk. We have no liability whatsoever arising from or relating to your use of any such third party services, and we make no representations or warranties with respect to such third party services.  Please be sure to read any terms and policies that may apply to the third party services.

We may exchange information with third party service providers in order to facilitate the provision of Website (and related third party services). Where such information consists of Personal Data (as defined in the privacy policy), it will only be shared in accordance with the privacy policy.

SOCIAL MEDIA & LINKING

The Website may provide certain social media features. You may use these features solely as they are provided by us and solely with respect to the Content with which they are displayed. We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Website and to use the social media features so long as: (a) the links only incorporate text, and do not use any of our trademarks; (b) the links and the content on your website and social media do not suggest any affiliation with PlenOptika or cause any other confusion; and (c) the links and the content on your website or social media do not portray PlenOptika or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party. You must not establish a link to this Website from any website or social media account that is not owned by you, or for which you lack proper legal authority to establish a link. The Website must not be framed on any other site, nor may you create a link to any part of the Website other than the homepage. We reserve the right to suspend or prohibit linking to the Website for any reason, in our sole discretion, without advance notice or any liability of any kind to you or any third party. We may disable all or any social media features and any links at any time without notice in our sole discretion.

DISCLAIMERS

Use of the Website is not meant to serve as a substitute for professional medical advice. Your physician or health care practitioner should address any and all medical questions, concerns and decisions regarding the possible treatment of any medical condition. YOUR ACCESS AND USE of the WEBSITE IS AT YOUR SOLE RISK. The Website AND CONTENT are provided “as-is” and “as available” without warranty of any kind. TO THE FULLEST EXTENT PERMISSABLE BY LAW, WE AND OUR EMPLOYEES, DIRECTORS, SHAREHOLDERS, VENDORS, LICENSORS, SUCCESSORS AND ASSIGNS HEREBY DISCLAIM AND MAKE NO REPRESENTATIONS, WARRANTIES, ENDORSEMENTS, OR PROMISES, EXPRESS OR IMPLIED, AS TO (i) THE WEBSITE, (ii) the CONTENT, OR (iII) FUNCTIONS, FEATURES OR OTHER ELEMENTS MADE AVAILABLE THROUGH THE WEBSITE. We do not guarantee, represent or warrant that your use of the Website will be uninterrupted, timely, secure or error-free. We do not warrant that the Website will be accurate, COMPLETE, or reliable. We do not waRrant that the WEBsITE OR CONTENT will meet your requirements. You agree that from time to time we may remove the WEBSITE for indefinite periods of time or cancel the WEBSITE at any time, without notice to you.  WITHOUT LIMITING THE FOREGOING, WE DISCLAIM ANY AND ALL WARRANTIES, express OR IMPLIED, including but not limited to all implied warranties or conditions of merchantability, merchantable quality, quiet enjoyment, fitness for a particular purpose, durability, title, and non-infringement, and ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.  Some jurisdictions do not allow the disclaimer of implied or other warranties, so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.

PART 2 – PURCHASES MADE VIA THE ONLINE STORE

This Part 2 applies to purchases of Products made via our online store on Website.

PRODUCT AVAILABLITY

You may place orders for Products at our online store via the Website.  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. We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance.

Occasionally there may be information on our Website that contains typographical errors, inaccuracies or omissions that may relate to Product descriptions, pricing, promotions, offers, Product shipping charges, shipping times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information is inaccurate at any time.

PRICING

PlenOptika reserves the right to change its prices at any time without notice. All prices are in United States Dollars (USD). Prices are exclusive of shipping and handling charges and applicable taxes. Buyer is 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. Buyer acknowledges that certain taxes will be charged at the time the order is processed. A payment receipt and estimated delivery date will be emailed to you at the email address you provide via the Website at the time the order is processed.

CREDIT CARD PAYMENTS VIA THE WEBSITE

If you place an order via our online store, we will ask you for your name, phone number, e-mail address, shipping and billing address, and other information so we can fulfill your order. Please note that we use a third party payment service provider, and by providing this information to us, you are simultaneously providing the same information to our provider.

You understand that payment processing and storage of your credit card information are handled by Shopify, Inc. via Shopify Pay Services.  Shopify, Inc. in turn uses Stripe, Inc. to process payments.  All of the information that is provided to Shopify is also provided to Stripe. Shopify/Stripe will collect your credit card information and charge your credit card for the order, as further detailed below.

By using your credit card to make a payment on this website, you agree to comply with the terms and conditions set forth at https://www.shopify.com/legal/terms and https://pay.shopify.com/en/tos-privacy-policy#terms-of-service. Please review these terms and conditions, and please note that PlenOptika is not a party to these terms and conditions.

For more information about Shopify’s privacy practices, you should review https://www.shopify.com/legal/privacy and for more information about Stripe’s privacy practices, you should review https://stripe.com/us/privacy. Reviewing these policies will help you understand how these entities collect, use and safeguard the information you provide as part of a credit card transaction on our Website.

You agree to provide current, complete and accurate credit card and account information for all purchases made on our Website. You agree to make all payments for any order placed by you.

Neither Shopify nor Stripe is a bank or a money services business (“MSB”) nor do they offer banking or MSB services as defined by the United States Department of Treasury.

Shopify/Stripe may add or remove one or more types of cards as a supported payment card any time without prior notice to you, including, without limitation, any international credit cards. If you are paying for your order with a credit card issued outside of the United States, and such credit card is accepted by Shopify/Stripe, your purchase price may change with the exchange rate, and you may be charged a conversion fee by your bank or credit card.  Please contact your back or credit card company for more information regarding their specific policies for international purchases.

PlenOptika, Shopify and Stripe maintain commercially reasonable administrative, technical and physical procedures to protect all the personal information regarding that is stored in their servers from unauthorized access and accidental loss or modification. However, PlenOptika, Shopify, and Stripe cannot guarantee that unauthorized third parties will never be able to defeat those measures or use such personal information for improper purposes. You acknowledge that you provide this personal information regarding at your own risk.

Some or all of the payment services may be provided from systems located within the United States or countries outside of the United States. As such, your cardholder data may be transferred, processed and stored outside of the United States and may be subject to disclosure as required by applicable law.

ORDER ACCEPTANCE

Our Products are for use by and sale to medical professionals, medical researchers, medical students, universities offering medical studies, health care organizations, vision scientists, vision researchers, non-profit organizations, and other individuals or organizations of a similar nature.  If you have questions about whether you are an authorized user or not, please contact us at legal@plenoptika.com. We further reserve the right to request information about your medical practice and medical license at any time and may reject an order in our sole discretion if such information is not provided.

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.

SHIPPING

PlenOptika will ship Product: a) DAP (Incoterms 2010), (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 at the time the order is placed; b) FCA, Madurai, India (Incoterms 2010) for all other international sales outside the USA.

PlenOptika will 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. PlenOptika will use commercially reasonable efforts to meet the estimated delivery date, however we are not responsible or liable for any late deliveries.

All Products are subject to U.S. and other applicable export control laws.

PART 3 – THE PRODUCTS

This section of the Terms is only applicable to you if you have purchased our Products. If you have purchased the Products, you are referred to in this Section as “Buyer”.

RIGHT TO USE

Buyer shall use, store and handle (collectively, “Use”) the Products for its own internal use only, and only in accordance with the manual and labeling accompanying the Products (the “Documentation”). Buyer shall comply with all applicable international, federal, state, and local laws and regulations in Using the Products. Buyer shall only use the Products if Buyer is a licensed medical professional, medical researcher, medical student, university offering medical studies, health care organization, vision scientist, vision researcher, non-profit organization, or other individual or organization of a similar nature. We grant to Buyer a non-exclusive, non-transferable, restricted license to use (a) the firmware within the Product (“Firmware”), and (b) the software within the Product and our web and mobile applications (the “Software”); in each case solely as incorporated in the Product. 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 its own expense to access the Internet and pay any service fees associated with such access.

RESTRICTIONS ON USE

Buyer shall not (or permit any third party to) Use the Products for any purpose other than as specified in the Documentation. Buyer shall not (or permit any third party to) Use the Products with any other device, product, source, instrument. 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; (d) create any derivative work of the Product, Firmware or Software, (e) access the Product, Firmware, or Software in order to copy or  build a product or service using similar 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.

Buyer shall comply with all United States and other applicable export laws and regulations, and shall not export or re-export the Products, Firmware, or Software to any restricted countries. Buyer will not 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 intercept communication or 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.

PROPRIETARY RIGHTS, MODIFICATIONS

All rights not expressly granted to Buyer hereunder are reserved. Software and Firmware are licensed and not sold.  All right, title and interest in and to the Firmware and Software, including all proprietary rights in and to all designs, engineering details, know-how, ideas, methodologies, concepts, and other technology and information pertaining to Product, Software, and Firmware; 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 Product does not convey or confer upon Buyer (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 Firmware and Software.

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.

BUYER DATA

As between the parties, all data directly or indirectly submitted, uploaded, provided, or otherwise transmitted by Buyer on or through the Software (“Buyer Data”) shall be owned exclusively by Buyer. Buyer hereby grants to PlenOptika nonexclusive, royalty-free, right and license to use, process, and transmit such Buyer Data in order to provide Products and services to Buyer. Buyer shall not provide PlenOptika with any data beyond the data described in the Privacy Terms (as defined in Part 4 below), and Buyer shall be responsible and liable for the violation of any laws or regulations associated with any such unauthorized transmittal. Specifically, and without limitation, Buyer will not provide any patient names or other personally identifiable information related to any such patients. Subject to applicable laws, regulations, and the Privacy Terms, PlenOptika also may collect, develop, analyze, disclose, and use anonymized (i.e., de-Identified) or aggregated Buyer Data, or data derived from Buyer Data or Buyer’s use of the Software and Products to provide and improve the Products and Software.

PRODUCT WARRANTY

The Product (excluding the Software and Firmware) is warranted solely to Buyer against defects in materials and manufacturing for a period of twelve (12) months (or 24 or 36 months, if an extended warranty is purchased as an add-on via the online store) from the shipping date. This period of time is known as the warranty period. PlenOptika warrants solely to Buyer that Firmware and Software will substantially conform with the applicable Documentation for a period of ninety (90) days from the shipping date. Buyer’s sole and exclusive remedy for any breach of the foregoing warranties shall be for PlenOptika to repair or replace, at its election, the defective Product, Software or Firmware (each as applicable); provided that Buyer complies with the return policy stated below. The warranties exclude any malfunctions or damage resulting from (a) Buyer’s 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 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) any actions beyond PlenOptika’s reasonable control. PlenOptika reserves the right to use “good-as-new” parts in servicing the Product.

RETURN POLICY

Please contact PlenOptika before returning any Product by emailing returns@plenoptika.com. PlenOptika will not accept the return of any product if PlenOptika has not approved the return in advance and provided you with a Returned Materials Authorization number (“RMA”). All returns must be packaged as instructed by PlenOptika and labeled with the assigned RMA number. Products are to be returned only in the country or region in which they were originally purchased.

Claims for shortages, errors in delivery, or defects apparent on visual inspection 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.

If you purchase the Products via PlenOptika’s online store, you will have a period of seven (7) days from the date of delivery to return the Products for any reason or no reason. You must (i) contact PlenOptika at the email address above and receive an RMA before the conclusion of the seven (7) day period, and (ii) bring the Product to an approved carrier for return shipment within five (5) business days of receipt of an RMA number in order to qualify for a refund. The refunded amount shall be the purchase price less any shipping and handling fees.

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 Product covered by the warranty described above; provided that Buyer returns the Product within ten (10) business days of issuance of an RMA number. PlenOptika reserves the right to refuse any return of Product(s) 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 Product, the refunded amount shall be the purchase price less any shipping and handling fees, taxes, royalties or other payments made by PlenOptika, and any amount commensurate with any damage to the defect enacted by Buyer.

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

DISCLAIMERS

EXCEPT FOR THE LIMITED WARRANTY STATED ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS, ALL PARTS (INCLUDING REPLACEMENT PARTS THERETO), AND ALL FIRMWARE AND SOFTWARE 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 IS NOT 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 is solely responsible for determining whether use of the Product, Firmware, and 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.

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. 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; and Buyer agrees not to use the Product, Firmware, or Software for any such purpose. All Products are authorized for use only in strict compliance with their instructions, precautions, and guidelines.

CONFIDENTIAL INFORMATION

“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, as it relates to Buyer’s use of the Products, the receiving party will promptly return or destroy all of the disclosing party’s Confidential Information in its possession.

INDEMNIFICATION

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 claims, suits, or proceedings arising out of or relating to Buyer’s use of the Products, Firmware, Software, or Buyer Data, including, without limitation: negligence or willful misconduct, or use of the Products, Software, or Firmware to the extent such use violates any applicable law, regulation, or court or administrative order. 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.

 

PART 4 – APPLICABLE TO THE WEBSITE AND PRODUCTS

Part 4 is applicable to any use of the Website, including the online store, as well as purchase of the Products via the online store, and access to and use of the Products following purchase from the online store.

PRIVACY

Privacy. Use of the Website and Products (and the use of any information collected by us through your use of the Website and Products) is subject to PlenOptika’s privacy policy: https://plenoptika.com/privacy-policy/, and, to the extent applicable to your use and the data provided, any sub links contained therein (the “Privacy Terms”). Your use of the Website or your purchase of the Products via our online store (as applicable) signifies your acceptance of the privacy policy.

FEEDBACK

If you send us creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, ‘comments’), you agree that we may, at any time, without restriction fully exploit in any medium any comments that you provide to us.  Comments are not confidential. We are and shall be under no obligation (1) to pay compensation for any comments; or (2) to respond to any comments.

LIMITATION OF LIABILITY

In no case shall PlenOptika, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers or licensors be liable for any DEATH, PERSONAL injury, loss, claim, or any indirect, incidental, punitive, special, exemplary or consequential damages of any kind, including, without limitation: COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LOST PROFITS, LOST DATA, LOST BUSINESS OPPORTUNITIES, computer damage, system failure, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability, product liability, or otherwise, arising from (A) your use of the Website OR CONTENT, including, but not limited to, any errors or omissions in any content, OR IN THE SITE’S TECHNICAL OPERATION, (B) ANY DAMAGE TO ANY COMPUTER, HARDWARE, SOFTWARE OR OTHER EQUIPMENT OR TECHNOLOGY, INCLUDING DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, FRAUD, ERROR, OMISSION, INTERUPTION, DEFECT, OR TECHNICAL MALFUNCTION; (C) YOUR PURCHASE AND USE OF the PRODUCTS; or (D) THE PERFORMANCE BY PLENOPTIKA OF ANY OF ITS OBLIGATIONS HEREUNDER; IN ANY CASE even if WE haVE been advised of the possibility of such damages, and even if a limited remedy set forth herein is found to have failed of its essential purpose. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, the above limitations may not apply to you. In any such jurisdictions, our liability shall be limited to the maximum extent permitted by law. IN NO EVENT WILL OUR TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF THE WEBSITE EXCEED FIVE HUNDRED DOLLARS (US$500.00); AND THE TOTAL CUMULATIVE LIABILITY OF PLENOPTIKA TO A BUYER OF THE PRODUCTS FOR ANY AND ALL CLAIMS AND DAMAGES, WHETHER ARISING BY STATUTE, CONTRACT OR OTHERWISE, WILL NOT EXCEED THE AMOUNTS PAID BY BUYER 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 IN THE ONLINE STORE REFLECTS THIS ALLOCATION OF RISK WITH RESPECT TO PURCHASE AND USE OF THE PRODUCTS AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.

INDEMNIFICATION

You agree to release, defend, indemnify, and hold PlenOptika and its affiliates and their officers, employees, directors, agents, partners, contractors, licensors, service providers, and subcontractors harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, costs, awards, fines, damages, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Website, any Content, your violation of these Terms, your violation of any rights of a third party, or your violation of any applicable law. If you are a California resident, you waive California Civil Code Section 1542, and if you are a resident of another jurisdiction, you waive any comparable statute or doctrine.

TERMINATION

These Terms are effective until terminated.

With respect to your use of the Website, you may terminate these Terms at any time by stopping your use of our Website. If you violate these Terms, we may terminate these Terms and/or suspend or terminate your use of the Website immediately without notice and without liability to you or any third party.

With respect to a Buyer’s use of the Products, either party may terminate an order and these Terms for material breach by the other party by providing the other party with 30 days notice of such material breach, such termination to be effective at the conclusion of such 30 day period, if the material breach is not cured within such 30 day period.  Upon any termination or expiration of these Terms as they relate to a Buyer’s use of the Product, (i) all applicable licenses and rights granted hereunder to the Software and Firmware shall terminate and PlenOptika shall no longer provide the Software or Firmware (or updates thereto) to Buyer, and (ii) if such termination is due to Buyer’s material breach, Buyer shall cease using the Product and promptly return the Product to PlenOptika, at Buyer’s expense.

Except as expressly provided herein, termination is a non-exclusive remedy for breach by you and will be without prejudice to any other right or remedy of PlenOptika. Provisions which by their nature should survive termination of this Agreement shall survive any such termination.

WAIVER OF INJUNCTIVE OR EQUITABLE RELIEF

IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE WEBSITE OR PRODUCTS, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF THE PRODUCTS, WEBSITE OR CONTENT.

MOBILE SERVICES

Please be aware that if you access the Website via your mobile phone or provide a mobile phone number to us in order to be contacted by voice or text message, your carrier’s normal rates and fees, such as text messaging fees or data charges, may apply.

GOVERNING LAW

These Terms shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to any conflict of laws provisions. The parties agree that the Convention on Contracts for the International Sale of Goods does not apply. 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.

MISCELLANEOUS

Except as otherwise stated herein, these Terms constitute the entire agreement and understanding between you and us and govern your use of the Website and your purchase and use of the Products (if you are a Buyer), superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms). The failure of PlenOptika to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. In the event that any provision of these Terms is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms, and such determination shall not affect the validity and enforceability of any other remaining provisions. These Terms are personal to you. You can’t assign them, transfer them, or sublicense them unless you get our prior written consent. We have the right to assign, transfer, or delegate any of its rights and obligations under these Terms without your consent. 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. In the event of a conflict between these the English language version of the Terms and any foreign language translation versions thereof, the English language version of the Terms shall govern and control. All disputes, claims and causes of action (and related proceedings) will be communicated in English. PlenOptika shall not be liable for damages for any delay arising out of causes beyond its reasonable control, including without limitation acts of God, labor disputes, riots, wars, and component shortages.

COOPERATION WITH AUTHORITIES

We will cooperate with law enforcement authorities as required by law and in any investigation of alleged illegal activity regarding the use of the Website or Products. YOU WAIVE AND US HOLD HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY US DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER THE COMPANY OR LAW ENFORCEMENT AUTHORITIES. All subpoenas must be properly served on us, preferably by mailing to the address below.  We do not accept service via email or fax.

PlenOptika, Inc.

955 Massachusetts Ave

#339

Cambridge, MA 02139

 

CALIFORNIA RESIDENTS

Under California Civil Code Section 1789.3, residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 1625 North Market Blvd., Suite 112, Sacramento, California 95834, or by telephone at (916) 445-1254. Their website is located at: http://www.dca.ca.gov.

 

CONTACT US

Questions about these Terms should be sent to: legal@plenoptika.com or (617) 862-2203