Purchase Agreement

Smart Vision Labs, Inc.

Purchase Agreement

Last Updated February 8, 2016

PLEASE READ THE TERMS OF THIS PURCHASE AGREEMENT (“AGREEMENT”) CAREFULLY. THIS AGREEMENT GOVERNS YOUR, AND YOUR AUTHORIZED USERS, USE OF THE SMART VISION ONE DEVICE (THE “DEVICE”), THE IPHONE, CHARGING CABLE(S), CONNECTING CASING, AND ACCESSORIES (COLLECTIVELY, THE “THIRD PARTY HARDWARE”) AND THE ASSOCIATED IPHONE APPLICATION (THE “APP”) PROVIDED TO YOU BY SMART VISION LABS, INC. (“SVL”). THE DEVICE, THE THIRD PARTY HARDWARE, AND THE APP ARE COLLECTIVELY REFERRED TO HEREIN AS THE “PRODUCT.”

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY EXECUTING A PURCHASE ORDER THAT REFERENCES THIS AGREEMENT, OR USING THE PRODUCT, YOU ARE REPRESENTING THAT: (1) YOU ARE AT LEAST 18 YEARS OF AGE, (2) YOU HAVE THE RIGHT AND AUTHORITY TO LEGALLY BIND YOURSELF, AND (3) YOU ARE AGREEING TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU ARE REPRESENTING THAT YOU HAVE THE RIGHT AND AUTHORITY TO LEGALLY BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY OR DO NOT AGREE TO ALL THESE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PRODUCT.

This Agreement is effective between SVL and You as of the date You accept this Agreement (the “Effective Date”).

  1. The Product.
  • Subject to the terms and conditions of this Agreement (i) You agree to purchase the Product(s) from SVL, and (ii) SVL hereby grants, and You hereby accept, a non-exclusive, non-transferable, non-sublicensable (except as expressly set forth below) license to use the App and the software or other technology embedded in the Device and the Third Party Hardware solely as necessary for the purpose of operating the Product in accordance with the SVL Guidelines (defined below). Your license includes the right to authorize Your employees and individuals working with You as independent contractors (“Authorized Users”) to use the App and such software and technology, but You are responsible to SVL for ensuring that your Authorized Users comply with this Agreement.
  • You will not (and shall ensure that Your Authorized Users and any third parties do not): (i) download, install or use any Third Party App (as defined below) on the Device and the Third Party Hardware; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Product; (iii) modify, adapt, or translate the Product; (iv) make any copies of the Product; (v) resell, distribute, or sublicense the Product; (vi) make the Product available on a “service bureau” basis, or otherwise allow any third party to use or access any of the foregoing; (vii) remove or modify any proprietary marking or restrictive legends placed on the Product; (viii) use the Product in violation of any applicable laws or for any purpose not specifically permitted in this Agreement; or (ix) introduce into the Product any software,  virus, worm, “back door,” Trojan Horse, or similar harmful code.
  • As between SVL and You, SVL retains title to and ownership of the Product, the SVL Guidelines, and any and all patent, copyright and other intellectual property rights therein or relating thereto. You will have no rights with respect to the Product or the SVL Guidelines other than those expressly granted under this Agreement.
  • As between SVL and You, You own all data collected, transmitted and/or stored by You on or through the Product (collectively, the “Your Data”). Your use of the App will be governed by the App terms and conditions which You will be required to accept when you sign up to use the App.
  1. Payment Terms. For each Product you purchase, You agree to pay SVL the total purchase price quoted to You by SVL when You submit Your request to purchase the Product (the “Purchase Price”).  SVL will charge the full purchase price including any applicable sales tax upon shipment of the Product.  Duty or Import taxes and any customs brokerage fees will be the sole responsibility of the purchaser.
  • For the purposes of this Agreement, “Confidential Information” means: (a) with respect to SVL, the Product and any and all intellectual property rights embodied therein or related to, and non-public information or material regarding SVL’s legal or business affairs, financing, customers, properties or data, and (b) with respect to You, Your Data and any non-public information or material regarding Your legal or business affairs, financing, customers, properties or data.  Notwithstanding any of the foregoing, Confidential Information does not include information which:  (i) is or becomes public knowledge without any action by, or involvement of, the party to which the Confidential Information is disclosed (the “Receiving Party”); (ii) is documented as being known to the Receiving Party without any obligation of confidentiality prior to its disclosure by the other party (the “Disclosing Party”); (iii) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (iv) is obtained by the Receiving Party without restrictions on use or disclosure from a third person who did not receive it, directly or indirectly, from the Disclosing Party.

(b)   The Receiving Party will (i) protect the Disclosing Party’s Confidential Information using the same degree of care that it uses to protect its own confidential information (but no less than a reasonable degree of care),  (ii) use such Confidential Information only in connection with its performance of this Agreement; (ii) restrict disclosure of such Confidential Information to its employees and contractors who have a need to know such Confidential Information in connection with the Receiving Party’s performance of this Agreement and who are bound to at least the same level of confidentiality required by this Section, and have agreed in writing to the same level of confidentiality as set forth here, and (iii) not disclose such Confidential Information to any third party without the Disclosing Party’s prior written consent.

  • If a party is requested to disclose any of the other party’s Confidential Information pursuant to any judicial or governmental order, that party will not disclose the Confidential Information without first giving the other party written notice of the request and sufficient opportunity to contest the order, to the extent such notice and opportunity to contest may be lawfully given.
  1. Warranty; Disclaimer.
  • The Device is a FDA Class I medical device intended for use by licensed medical professionals. The Product is available for sale in the United States. SVL warrants the Device (including the wavefront aberrometer, and eyepiece), and the Third Party Hardware provided by SVL that is contained in the original packaging against defects in materials and workmanship when used normally in accordance with SVL’s technical specifications, users manuals and service communications (“SVL Guidelines”) for a period of ONE (1) YEAR from the date of original purchase by You (“Limited Warranty Period“). SVL DOES NOT WARRANT THAT THE DEVICE, THE THIRD PARTY HARDWARE AND/OR THE APP WILL OPERATE WITHOUT INTERRUPTION OR WILL BE ERROR-FREE, OR THAT ALL ERRORS MAY BE CORRECTED. If your Device is within the limited warranty and meets the above stated conditions, you may request repairs by contacting Smart Vision Labs at support@smartvisionlabs.com or by calling (212) 796-6124.
  • SVL warrants that the App substantially conforms to the SVL Guidelines during the Limited Warranty Period.
  • The foregoing warranties set forth in Sections 4(a) and 4(b) do not apply to any non-SVL branded software, iPhone applications or features that You download or add to the Device (“Third Party App”). The suppliers, manufacturers or providers of such Third Party Apps may provide their own warranties to you – please contact them for further information. SVL is not responsible for damage arising from failure to follow SVL Guidelines relating to the use of the Device. SVL cannot be held liable for lost or stolen Device(s). This limited warranty does not apply: (a) to consumable parts, such as batteries or protective coatings that are designed to diminish over time, unless failure has occurred due to a defect in materials or workmanship; (b) to cosmetic damage, including but not limited to scratches, dents, and broken plastic or rubber; (c) to damage caused by use with another product; (d) to damage caused by accident, abuse, misuse, liquid contact, fire, earthquake or other external cause; (e) to damage caused by operating the Device not in accordance with the SVL Guidelines; (f) to damage caused by service (including upgrades and expansions) performed by anyone who is not a representative of SVL; (g) to the Device that has been modified to alter functionality or capability without the written permission of SVL; (h) to defects caused by normal wear and tear or otherwise due to the normal aging of the Device, (i) if any serial number has been removed or defaced from the Device; (i) to any damage other than the damage to the physical iPhone or the Device; or (j) to damage arising or resulting from disconnecting the Device from the iPhone.
  • Your sole and exclusive remedy for a breach of these limited warranties set forth in Sections 4(a) and 4(b), and SVL’s sole and entire liability is, at SVL’s option, to (i) exchange the defective Device with a device that is new (or equivalent to new in performance and reliability) and is at least functionally equivalent to the original Device, (ii) repair the defective Device, or (iii) refund your Purchase Price for the defective Device.
  • EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 4, THE PRODUCT IS PROVIDED “AS IS” AND “AS AVAILABLE.” SVL MAKES, AND YOU EXPRESSLY WAIVE, ANY AND ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE DEVICE INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SVL OR ANY SVL AUTHORIZED REPRESENTATIVE SHALL CONSTITUTE A WARRANTY. YOU ASSUME ALL RESPONSIBILITIES FOR SELECTION OF THE PRODUCT TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE USE OF THE PRODUCT. SVL MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE PRODUCT FOR ANY PURPOSE, OR THAT ANY DEVICE CAN BE REPAIRED OR REPLACED WITHOUT RISK TO OR LOSS OF DATA OR INFORMATION STORED IN THE DEVICE. Some jurisdictions do not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, so such limitations or exclusions may not apply to you. The warranty in this Section 4 gives you specific legal rights and you may also have other rights which vary from jurisdiction to jurisdiction.
  1. Limit of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, SVL WILL (1) IN NO EVENT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST REVENUES OR PROFITS; LOSS OF GOODWILL OR REPUTATION; LOSS OF, DAMAGE TO, COMPROMISE, OR CORRUPTION OF DATA) ARISING FROM OR RELATING TO THE PRODUCT OR ITS USE, WHETHER CLAIMED IN AN ACTION UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER THEORY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE AND (2) IN NO EVENT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ACTUAL DAMAGES ARISING FROM OR RELATING TO THE PRODUCT OR ITS USE, IN EXCESS OF THE PRICE PAID BY YOU FOR THE PRODUCT.  YOU ASSUME ALL RISK OF PERSONAL INJURY TO YOU, OR ANY THIRD PARTY ASSOCIATED WITH THE USE OF THE PRODUCT.  Some states and/or jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.  You may also have other legal rights that vary from state to state.
  1. Returns and Refunds.

SVL offers a 14-day, money-back guarantee trial period (“14-day Money Back Guarantee Period”); provided the Product is clean and undamaged (excluding manufacturing damage or damage caused during shipping), and the Buyer has retained the original packaging and materials. The 14-day Money Back Guarantee Period starts from the day of confirmed delivery to the provided shipping address. Buyer may assign an Authorized User to receive the unit on Buyer’s behalf. Then, and only then, will Buyer be eligible for a refund upon return of the Product.

A refund request must be submitted by the Buyer to Customer Service by calling (212) 796-6124 and speaking with a representative, or by emailing support@smartvisionlabs.com. Approval must be given for the return, and a Return Authorization Number must be issued to the case.

Should Buyer decide to return the Product and request a refund, the Product – along with all pertinent documentation, both charging cables, the adapter, the original carrying case, and any other hardware supplied with the Product – must be shipped back no later than 14 days from the date of issuance of a Return Authorization Number to the below address:

Smart Vision Labs, Inc.
335 Madison Ave.
Floor 16
New York, NY 10017

After SVL approves a return, SVL will send Buyer an electronic shipping label. Buyer should use the label to return Buyer’s Product in the original packaging. Once SVL receives and reviews Buyer’s return, SVL will refund Buyer the Purchase Price less any applicable shipping costs. Improper repackaging may result in a voiding of the claim. All freight fees will be the responsibility of the Buyer.

A FIVE HUNDRED DOLLAR ($500) RESTOCKING FEE APPLIES TO ALL RETURNS. The refund, less the restocking fee, will be issued to the Buyer upon confirmation of receipt of the returned unit to the SVL facilities.

Additionally, failure to return all components will result in a minimum One Hundred Dollars ($100) replacement fee deducted from the refund. SVL is not responsible for fulfilling return requests if the request is made after the 14 day period has expired. SVL may, at our sole discretion, choose to extend the deadline for the 14-day trial period on a case-by-case basis, but such exemptions are only valid for the individual for which they were intended and only when provided by a SVL representative in writing. For questions regarding SVL’s return policy, please call (212) 796-6124 or e-mail support@smartvisionlabs.com

Return Instructions:

  • All returns require a Return Authorization number whether the return is for warranty, repair, replacement or refund.  Returns without an RA number will be refused.
  • Customer must call Smart Vision Labs support at (212) 796-6124 or contact us through email at support@smartvisionlabs.com to obtain an RA number.
  • The following information is required when an RA is requested:
    • Original customer purchase order number and date
    • Date product was received by customer
    • Product description, model, serial number.
    • Reason for return
    • Contact information, including updated mailing address
  • Carefully pack unit in a suitable container or in the original container with all original components included.  Improper packaging may void a warranty claim.
  • Mark box or label with the Return Authorization number

Freight charges on all products returned to Smart Vision Labs shall be paid by the customer.  Collect shipments will be refused.

Please note: Custom-made items may not be returned.  Please contact us if you have any questions regarding this policy.
For additional terms, please visit https://smartvisionlabs.com/terms

  1. Miscellaneous. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.  If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.  You may not assign any of Your rights or obligations under this Agreement without SVL’s prior written consent. SVL may freely assign its rights or obligations under this Agreement without Your prior written consent, including to a purchaser of all or substantially all of SVL’s assets or business or in connection with SVL’s merger, consolidation, change of control or similar transaction. This Agreement shall be governed by and construed in accordance with the laws of the state of New York without regard to the conflict of laws provisions thereof.  All claims or disputes arising out of or in connection with this Agreement shall be heard exclusively by any of the federal or state courts of competent jurisdiction located in the State of New York.  The parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement.  Any modification to this Agreement must be in a writing signed by both parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has any authority of any kind to bind the other party in any respect whatsoever.