These Terms and Conditions of Sale apply to the sale or use of Synaptive products, including Software as defined in paragraph 14 ("Products"), and is entered into between Synaptive Medical Inc. and the Customer (each a "Party"):

Agreement

These Terms and Conditions of Sale, along with any applicable quote(s) or other purchasing documents (“Sales Document”) executed by the Parties constitute the complete and entire agreement between Synaptive and the Customer in respect of sale or use of the Products (collectively referred to herein as the "Agreement"). The Agreement constitutes the entire agreement between the Parties and will supersede all other quotations, agreements, understandings, warranties, representations (whether written or oral), including any Customer documentation, between the Parties relating to its subject matter, unless the incorporation of any such quotations, agreements, understandings, warranties or representations into the Agreement is specifically agreed to in writing by both parties. In the event of a conflict of anything in a Sales Document and these Terms and Conditions of Sales, the terms herein shall govern unless expressly agreed otherwise by the Parties in writing. Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement. No provision shall be waived, amended, superseded, terminated or renewed except by the Parties in writing.

Prices and Payment

Prices, fees and charges for Products and related services (“Services“) shall be those stated in the Sales Document, are payable in USD and do not include any applicable taxes or shipping and/or handling charges unless indicated otherwise. Customer shall pay invoices thirty (30) days from the invoice date. Synaptive may charge interest on overdue invoices at the lesser of one percent (1%) per month and the maximum rate permitted by law.

Product Shipment and Risk of Loss

Products will be shipped FCA shipping point, freight prepaid by Synaptive and added to the invoice. Customer is responsible for shipping charges unless agreed otherwise in writing. Delivery shall be deemed to have been made when Customer’s shipment has been delivered to a carrier, selected at Synaptive’s option, title passing to the Customer upon delivery. Shipping and delivery dates are estimates only, and time is not of the essence.

Installation and Acceptance

Product orders are subject to written acceptance by Synaptive, receipt of specified deposits (if any), and credit approval. Unless otherwise specifically agreed by the Parties and subject to the Customer cooperating in preparing and maintaining the site in compliance with Synaptive specifications, Synaptive will set-up and install all Products that require installation at no charge, at the location specified in the Sales Document, which shall be complete upon operational qualification, being Synaptive’s satisfaction that the Product is operating in conformance with Synaptive’s applicable specifications (“OQ”).

WARRANTIES

1. Each Product other than consumable supplies (“Consumables”) is warranted to the original Customer to perform substantially in accordance with published product specifications until one (1) year from the date of the first OQ of such Product (“Warranty Period“). Replacement or upgraded parts are warranted for the remainder of the Warranty Period, if any. Consumables are warranted to conform to published specifications for a period ending on the expiration date shown on their respective packages, to a maximum of six (6) months from the date of shipment. Services are warranted to be performed to a standard of care conforming to generally accepted industry standards and practices. Synaptive does not warrant that use of Products will be uninterrupted or error-free, or that Products will operate with non-Synaptive products. During the Warranty Period Synaptive shall also provide the Customer with the services defined as Product Support in Section 9. SYNAPTIVE’S ENTIRE WARRANTY RESPONSIBILITY IS EXPRESSLY LIMITED TO REPAIR OR REPLACEMENT (AT SYNAPTIVE’S OPTION AND IN THE FORM ORIGINALLY SHIPPED) OF PRODUCT OR CORRECTION OF SERVICE SUBJECT TO ANY CLAIM, OR, AT SYNAPTIVE’S ELECTION, REPAYMENT OF, OR CREDITING CUSTOMER WITH, AN AMOUNT EQUAL TO THE SYNAPTIVE PRICE, FEE OR CHARGE THEREFORE. THE FOREGOING WARRANTIES ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES NOT EXPRESSLY SET FORTH HEREIN, WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANT ABILITY OR FITNESS AND/OR SUITABILITY FOR A PARTICULAR PURPOSE. SUCH LIMITED WARRANTY IS GIVEN BY SYNAPTIVE SOLELY TO THE ORIGINAL CUSTOMER, AND MAY NOT BE TRANSFERRED TO NOR MAY IT BE RELIED UPON BY ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, CUSTOMERS OF THE CUSTOMER.
2. These warranties do not apply to any item that is: (a) repaired, moved, or altered other than by Synaptive’s authorized service personnel; (b) subjected to physical (including thermal, magnetic or electrical) abuse, stress, or misuse; (c) stored, maintained, or operated in any manner inconsistent with applicable Synaptive specifications or instructions, including the Customer’s refusal to implement Synaptive-recommended Software updates or upgrades or if operated by someone who did not receive Synaptive-approved training; (d) designated as supplied subject to a non-Synaptive warranty, or on a pre-release, evaluation, or “as-is” or similar basis; or (e) on which the Customer installed anti-virus, anti-malware and data encryption software not authorized by Synaptive.
3. In the event of any warranty claim, Synaptive will replace with new or repaired items any Product part, component or Consumable that is in breach of warranty, or in the case of Software will use reasonable efforts to remedy any Software defect that prevents operation in substantial conformity with functional specifications. Alternatively, Synaptive may elect to repay or credit the Customer an amount equal to the purchase price of the defective item. Items replaced shall become Synaptive property upon shipment of replacement. All claims shall be initiated by the RMA procedure set out in Section 6 within the applicable Warranty Period and no more than thirty (30) days after discovery of the breach. Synaptive must be given reasonable access and opportunity to inspect. These remedies provided herein are the Customer’s exclusive remedies for breach of warranty. All other repairs are subject to Synaptive’s discretion and performed at Synaptive’s standard repair or exchange charges. All non-warranty repairs carry a ninety (90) day warranty. Any Product being replaced by Synaptive must be returned within thirty (30) days of receipt of the replacement Product, otherwise the Customer may be invoiced for the full list price of the replacement. Synaptive does not guarantee and may decline to repair or exchange any Product that has been repaired, attempted to be repaired, modified and/or altered by anyone other than Synaptive or an authorized agent of Synaptive.

Return Policy

‍The Customer must obtain, by telephone or written request, a return merchandise authorization (“RMA”) number from Synaptive’s Customer Support Department prior to returning any Products for exchange, repair or refund; such request must contain: (i) the Customer name and identification numbers (as it appears on the applicable invoice); (ii) telephone number and name of the Customer contact; (iii) purchase order number, if applicable; (iv) Product name or catalogue number; and (v) the reason for the requested return. The following Products may not be returned for credit or exchanged: (a) Products held for longer than sixty (60) days from OQ; (b) sterile packaged Products if the package is opened or damaged; (c) discontinued Products; (d) Products damaged by the Customer; (e) Products purchased ‘as is’ or demo products; and (f) used Products. To reduce the transmission of pathogens, all Products must be cleaned and then sterilized and/or disinfected before they are returned to Synaptive. Products not meeting these requirements may be rejected by Synaptive, and the Customer will not be entitled to a credit or exchange, or to a return of such items.

LIMIT OF LIABILITY

SYNAPTIVE SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL LOSSES, DAMAGES, OR EXPENSES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, DATA, OR USE), WHETHER FORSEEABLE OR UNFORSEEABLE, THAT ARISE DIRECTLY OR INDIRECTLY FROM THE SALE, HANDLING, SERVICE OR USE OF PRODUCTS OR SERVICES OR FROM ANY CAUSE RELATING THERETO UNLESS EXPRESSLY AGREED TO BY THE PARTIES IN WRITING. IN NO EVENT SHALL SYNAPTIVE BE LIABLE UNDER ANY LEGAL THEORY OR FOR ANY CAUSE WHATSOEVER, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, NEGLIGENCE, OR OTHER THEORY, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, FOR ANY AMOUNT IN EXCESS OF THE FEES ACTUALLY RECEIVED BY SYNAPTIVE FOR THE PRODUCT OR SERVICE IN QUESTION. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS AND DISCLAIMERS OF CERTAIN WARRANTIES OR LIMITATIONS OF LIABILITY, IN WHICH CASE THE LIMITATIONS AND/OR EXCLUSIONS SET FORTH HEREIN MAY NOT APPLY; IN SUCH EVENT, THE PARTIES AGREE SYNAPTIVE’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW IN THE SUBJECT JURISDICTION.

Technical Services Support

During the Warranty Period Synaptive will provide the Customer with the services outlined in Schedule A (“Technical Services Support”).

Onsite Clinical Support

If provided for in the Sales Document, and only for the term and at the prices outlined therein, Synaptive shall make available to the Customer an appropriately trained, knowledgeable and skilled Synaptive representative(s) (“Clinical Application Specialist” or “CAS”) to assist the Customer with the use of Products in a clinical setting (“Onsite Clinical Support”), in accordance with the terms in Schedule B.

General Service Terms

These Terms and Conditions of Sale apply to the sale or use of Synaptive products, including Software as defined in paragraph 14 ("Products"), and is entered into between Synaptive Medical Inc. and the Customer (each a "Party"):

1. The Customer shall ensure that Synaptive’s representatives are given reasonable and adequate access to the Customer’s staff and operations personnel, records, facilities, workflow, data and data formats, computer systems and all other information or materials reasonably required, plus adequate work space, power, and telephone and internet access as necessary to enable them to perform the Services in accordance with the terms of this Agreement.
2. Synaptive shall not be required to provide services on any Saturday, Sunday, or Public holiday in the Customer’s jurisdiction. Every other day shall be considered a “business day”.
3. The Customer acknowledges that Synaptive’s representatives are not medical professionals and they shall not provide any medical or diagnostic advice, and the Customer shall rely on its own skill and judgment in treating any patients.
4. The Customer acknowledges that Synaptive’s representatives shall not be required to perform Services relating to (i) connecting products to systems or equipment not specified or provided by Synaptive; (ii) electrical or other utilities external to Synaptive products; (iii) service, parts or repair required due to: having followed the instructions of the Customer, the Customer’s failure to meet its obligations in this Schedule or any other Schedule with Synaptive, or the Customer’s failure to comply with specifications applicable to the product; (iv) service, maintenance or repair of Products, or components thereof, which the Customer or someone on its behalf has installed, modified, disassembled or repaired (or has attempted to do any of the foregoing); or (v) back-up or restoration of the Customer data, information or computer programs.

Delay of Performance

If Synaptive is unable to provide any Products or Services due to events not within its reasonable control (a “Force Majeure Event”) the estimated performance time shall be varied accordingly and Synaptive shall not be liable for any delay caused by such Force Majeure Event.

Insurance

Synaptive shall at all times during the term of this Agreement maintain the following insurance: (i) worker’s compensation insurance covering any and all of its employees, agents or representatives who may be providing Services to the Customer under the terms of this Agreement, in amounts and coverage that comply with the requirements of local law; (ii) general commercial liability insurance; and (iii) product liability insurance. At the Customer’s request, Synaptive shall provide a certificate of insurance to the Customer.

Intellectual Property Indemnity

‍Synaptive will defend and indemnify the Customer against any third-party claim that the Customer’s use of Products infringes a valid patent, copyright, or trademark, provided that: (1) Products have been used for their intended purpose and in accordance with the Agreement; (2) the Customer promptly notifies Synaptive of such claim; (3) Synaptive has sole control of the defense and settlement of such claim; and (4) the Customer cooperates with Synaptive and furnishes all aid, information, and assistance requested or reasonably necessary or useful to defend such claim. This indemnity shall not extend to any claim based upon an infringement which: (i) would have been avoided but for the Customer’s failure to use the most current version and/or update of any software, (ii) results from the combination of Synaptive’s software or product with any other product not provided or specified by Synaptive, or (iii) relates to software or products that have been customized at the direction of the Customer. If an injunction is issued against Synaptive’s sale or the Customer’s use of any Product, or if in the opinion of Synaptive the Product is likely to become the subject of a successful claim, Synaptive may, at its option and in its sole discretion: (i) obtain for the Customer the right to continue using the Product; (ii) replace or modify the Product so that it becomes non-infringing; or (iii) if neither (i) or (ii) are commercially practicable, take return of such Products held by the Customer, grant a credit therefore as depreciated on a five-year straight-line basis, and terminate the Agreement without any further obligation or liability. The remedy selected by Synaptive will be the Customer’s exclusive remedy for any damage, cost, or expense resulting from any court order or settlement enjoining the Customer’s use of the Product. This Section sets out the entire liability of Synaptive for any and all actual or alleged infringement of third-party intellectual property.

Software License

‍The term “Software” includes all Synaptive and third-party software, firmware and associated documentation, whether in printed or machine-readable form, that is used in connection with or to operate Products or Services supplied under this Agreement. To the extent any Products include Software, the Customer is granted a personal, non-exclusive, limited, non-transferable (other than in accordance with the final sentence of this Section), non-sublicensable license to use Software solely on the Product on which it is first installed, but only in the form in which delivered to the Customer and for the sole purpose of using the Products in accordance with Synaptive’s written instructions in the normal course of the Customer’s business and in accordance with the Agreement, and for no other product or purpose. If the Sales Document contains a limitation on the number of user licenses being granted to Customer for a particular Software Product, Customer may only permit such number of its employees or other agents to use such Product, and only in accordance with any additional limitations identified therein. The Customer has no other right to use, sell, assign, transfer, copy, modify or sublicense Software. The Software, and all modifications, derivatives, enhancements and upgrades thereto (if any) will, at all times, remain the property of Synaptive or the applicable third-party licensor, and the Customer shall maintain all copyright, proprietary and other notices on or in the Software. Software is agreed to contain and shall be treated as confidential information, and the Customer shall not (nor permit any other person or entity to) decompile, disassemble or reverse engineer the Software. From time to time Synaptive may develop new versions or provide updates to Software, and the Customer agrees to implement any such new versions or updates recommended by Synaptive. The Customer may transfer Products to a third party provided the following: (i) the Customer must assign all the rights, duties and obligations in respect of the Software installed on the Products as provided for in this section, and the third party must agree in writing with Synaptive to be bound by the provisions of this section, (ii) such proposed transfer must not violate any applicable law, (iii) the Customer must irrevocably agree to be responsible for any breaches by the third-party.

Confidential Information

‍Both Parties agree to hold in strict confidence and only to use for the performance of their obligations or exercise of their rights under this Agreement, the terms of this Agreement (including prices), and all other information provided to the other in connection with the performance of their respective obligations under this Agreement, including without limitation financial and corporate information, except to the extent that disclosure is required by applicable law and except either Party may disclose to its employees, professional advisors, agents or independent contractors provided such other parties or individuals are under a duty of confidentiality to either Party and have a reasonable need to know such information.

Intended Uses

Products are only intended for the uses listed in the applicable operator’s manual or instructions for use. The Customer assumes all risks associated with any non-listed uses of Products and hereby agrees to indemnify and hold Synaptive harmless from any claim associated therewith.

Compliance with Laws and HIPAA Compliance

‍Synaptive and Customer shall comply with and intend that this Agreement comply with all applicable federal, state and local laws and regulations now in effect or hereinafter enacted, amended or promulgated (and their foreign analogues), including, without limitation, the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. §§ 1320d through 1320d-8 (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act as incorporated in the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5 (2009) (“HITECH”), 45 CFR Parts 160, 162 and 164 (the “Privacy and Security Rule”), and the Personal Health Information Privacy Act (Ontario).

Reporting and Disclosure

‍Synaptive and the Customer shall comply with the provisions of 42 U.S.C. §1320a-7b(b) (or analogous foreign laws) which, inter alia, prohibits the knowing or willful offer, solicitation or receipt of any remuneration, directly or indirectly, in return for purchasing or recommending purchasing any goods, services, or items for which payment may be made in whole or in part under a federal or state healthcare program. Unless otherwise noted in this Agreement, the cost of any Product training, set-up, installation, or included services shall be included in the purchase price of the Product where applicable. The dollar value of any discounts or rebates provided by Synaptive to the Customer are intended to be discounts or reductions in price as described in 42 U.S.C. §1320a-7b(b)(3)(A) and 42 C.F.R. §1001.952(h). Synaptive and the Customer shall comply with any and all obligations to accurately record and disclose, either to each other or to a third party, any information relating to such discounts or reductions in price. The Customer acknowledges that this section is sufficient to effectively advise it of its obligations under applicable federal and state laws and regulations.

Waiver and Severability

‍Any failure or delay to enforce any remedy or breach of this Agreement shall not be viewed as a waiver unless agreed to by the Parties in writing, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. Each provision of this Agreement is separate and independent from the others, and the unenforceability of any provision will not affect the enforceability of any other provision. If any provision is held to be unenforceable the parties agree such provision shall be modified accordingly so that it is enforceable to the fullest extent possible by law.

Assignment

‍The Customer may not assign or transfer the Customer’s interests, rights or obligations under this Agreement, in whole or in part, without the prior written consent of Synaptive (which consent shall not be unreasonably withheld).

Notices

‍Any required notices will be given as set forth in the Sales Document or as otherwise agreed upon by them.

Suspension by Synaptive

‍Synaptive may suspend services under this Agreement in the event of a breach by the Customer of any agreement between the Customer and Synaptive, including a breach of its payment obligations hereunder.

Governing Law

‍This Agreement shall be governed by the law of the Province of Ontario, and the federal laws of Canada applicable therein, without reference to any conflicts of laws provisions.