Equipment Lease End User License Agreement
v.1.1
EQUIPMENT LEASE END USER LICENSE AGREEMENT
THIS EQUIPMENT LEASE END USER LICENSE AGREEMENT (the “Agreement”) is a binding legal agreement between the person, company or organization who is leasing, renting, operating or otherwise using this Equipment (as defined below) (“You” or “Your”) and Optomed USA Inc, a Delaware corporation, with a place of business at 11675 Great Oaks Way, Ste 110, Alpharetta, GA 30022, USA (“Optomed”), with Optomed and You each a “Party” and together, the “Parties”.
BY CLICKING “ACCEPT” AND/OR BY YOUR USE OF THE EQUIPMENT, YOU REPRESENT AND WARRANT THAT: (1) YOU ARE DULY AUTHORIZED TO ENTER INTO THIS AGREEMENT; AND (2) YOU HAVE READ AND UNDERSTOOD THIS, AGREEMENT AND YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU DO NOT HAVE PERMISSION TO USE THE EQUIPMENT AND MUST IMMEDIATELY RETURN IT TO OPTOMED.
Your use of the Equipment is and shall be subject to the following terms, conditions, restrictions and acknowledgements during the term of this Agreement and thereafter:
Optomed owns all right, title and interest in and to certain proprietary retinal imaging devices, software and solutions, including, but not limited to, hand-held fundus cameras (the “Equipment”), as more fully described at Optomed’s webstore at https://www.optomed.com/us/buy-now (the “Webstore”). You operate, work for and/or are associated with a clinic/medical practice (the “Practice”). You desire to lease from Optomed, and Optomed desires to lease to You, the Equipment for use by You in connection with the Practice.
Optomed and/or its technology partners provide proprietary retinal screening services for use in connection with the Equipment that You may sign up for at the Webstore (the “Services”). The Services are subject to a separate written agreement between You and Optomed. Such agreement can be found at the Webstore.
SECTION 1
RENTAL
During the Term (as defined below) and subject to Your compliance with the terms and conditions of this Agreement, Optomed hereby grants to You a limited, non-exclusive, nontransferable, non-sublicensable right and license to use the Equipment. The rights granted to You hereunder are personal and shall not be assigned or transferred to any other party by operation of law or otherwise.
SECTION 2
RENTAL TERM
This Agreement shall commence on the date the Equipment is delivered to You (the “Delivery Date”) and continue for a period of four (4) years (the “Term”) (, unless earlier terminated in accordance with Section 14 due to a Party’s breach of this Agreement or for convenience by giving to the other party written notice of termination no later than ninety (90) days before any annual recurrence of the month and day of the Delivery Date.
SECTION 3
RENT AND INSTALLATION OF EQUIPMENT; TRAINING
(a) You shall pay Optomed rent for the Equipment throughout the Term as set forth at the Webstore, together with sales tax applicable to such Equipment, without deduction or offset. In the event You are in default in the payment of any rent due under this Agreement, You shall pay Optomed, as additional rent, to the extent permitted by law, from the original due date to the date of payment at an amount equal to such overdue amount of rent multiplied by a rate of 2% per annum or the maximum contract rate permitted by applicable law, whichever is lower determined on the basis of the actual days elapsed.
(b) Subsequent to Your lease and receipt of the Equipment, Optomed shall install the Equipment and provide initial training to You in the use of the Equipment. Such installation and training shall be subject to the terms at the Webstore.
SECTION 4
OPTOMED EQUIPMENT OWNERSHIP; YOUR OBLIGATIONS
(a) During the Term of this Agreement and thereafter, the entire right, title and interest in and to the Equipment and all intellectual property rights therein and relating thereto shall remain property of Optomed or its licensors. You shall, by the terms of this Agreement, obtain no property or ownership interest in the Equipment other than the right to possess and use the Equipment in the Practice during the Term, all as set forth under the terms of this Agreement. You shall obtain and maintain all permits, approvals and licenses necessary for the operation, possession and use of the Equipment. You shall comply with all laws, rules and regulations applicable to the operation, possession and use of the Equipment. You shall not: (a) sublease the Equipment; (b) open the Equipment’s electronic housing or modify, disassemble or reverse engineer the Equipment; (c) copy or otherwise reproduce the Equipment in whole or in part or modify, adapt or alter the Equipment; (d) remove, modify or otherwise tamper with notices or legends or labeling on the Equipment; or (e) cause any third party to engage in any of the restricted activities herein.
(b) Your obligations hereunder shall be Your unconditional obligations and shall be fulfilled without abatement, reduction or setoff of any nature, including any arising out of any present or future claim that You may have against Optomed or any of its successors or assigns or the manufacturer, distributor or vendor of the Equipment. Your obligations under this Agreement are absolute and unconditional and shall continue in force and effect regardless of Your inability to use the Equipment because of any reason whatsoever, including but not limited to war, act of God, government regulations, strike, loss or damage, obsolescence, or breach of contract, and Your obligations shall not abate due to any claim or setoff against Optomed.
SECTION 5
PROTECTION OF EQUIPMENT
You shall keep and maintain the Equipment in good condition and working order, shall keep the Equipment free and clear of all liens, encumbrances and claims, shall pay all taxes and other charges relating to the Equipment, shall pay all costs and expenses of every character occasioned by or arising out of the use and maintenance of the Equipment, and, on expiration or termination of this Agreement, shall, at Optomed’s written option, either destroy, or immediately return at Optomed’s cost, the Equipment to Optomed in the same condition as received, reasonable wear, tear and depreciation resulting from proper use thereof alone excepted.
SECTION 6
WARRANTY, EXCLUSIONS AND DISCLAIMER
(a) Warranty. Subject to Section 6(b) and Section 7 below, Optomed warrants that the Equipment shall be free from defects in materials and workmanship during the Term. Subject to the exclusions in Subsection (b) below, in the event the Equipment and/or battery fails to function in accordance with the warranty provided herein, Optomed shall repair or replace the Equipment and/or battery at Optomed’s expense (including reasonable shipping costs).
(b) Exclusions. The warranty set forth above in Section 6(a) shall not apply to: (i)
Equipment that has been subjected to abuse, accident, alteration, modification, tampering, misuse (including any use other than in accordance with the documentation for the Equipment), faulty installation, lack of reasonable care, repair or service in any way that is not contemplated in the documentation for the Equipment, or if the model or serial number has been altered, tampered with, defaced or removed; (ii) damage caused by dropping the device or damage caused by normal wear and tear, lack of reasonable care, disassembly, upgrade, or any phase out-parts; (iii) any issue related to the stickers attached to the device coming off; or (iv) repair or service performed to the Equipment by a non-Optomed certified service facility.
(c) DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH ABOVE IN SECTION 6(a) OPTOMED LEASES THE EQUIPMENT TO YOU “AS IS” AND HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, CONDITION OR SUITABILITY OR FITNESS OF THE EQUIPMENT FOR YOUR USE OR ANY OTHER WARRANTY OR REPRESENTATION WITH RESPECT THERETO. OPTOMED SHALL NOT BE LIABLE TO YOU FOR ANY LOSS, CLAIM, DEMAND, LIABILITY, COST, DAMAGE OR EXPENSE OF ANY KIND CAUSED, OR ALLEGED TO BE CAUSED, DIRECTLY OR INDIRECTLY, BY OR TO EQUIPMENT, OR BY ANY INADEQUACY THEREOF FOR ANY PURPOSE, OR BY ANY DEFECT THEREIN, OR THE USE OR MAINTENANCE THEREOF, OR ANY DELAY IN PROVIDING OR FAILURE TO PROVIDE THE SAME, OR ANY INTERRUPTION OR LOSS OF SERVICE OR USE THEREOF, OR ANY LOSS OF BUSINESS, PROFITS, REVENUE, CONSEQUENTIAL OR OTHER DAMAGE OF ANY NATURE, IT BEING AGREED THAT ALL SUCH RISKS, AS BETWEEN OPTOMED AND LESSEE ARE TO BE BORNE BY LESSEE. THE MAXIMUM AGGREGATE LIABILITY OF OPTOMED FOR ALL CLAIMS UNDER THE AGREEMENT IS LIMITED TO DIRECT DAMAGES UP TO THE TOTAL AMOUNT RECEIVED BY OPTOMED AS RENT FROM LESSEE FOR THE EQUIPMENT THAT GAVE RISE TO THE LIABILITY DURING THE 6-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO LIABILITY. ALL CLAIMS AGAINST OPTOMED MUST BE MADE WITHIN 6 MONTHS FROM THE EVENT THAT GAVE RISE TO THE CLAIM.
(d) You acknowledge and agree that, except as expressly provided in Section 6(a), Optomed has made no representation or warranty of any kind, nature or description, express or implied, with respect to the Equipment.
SECTION 7
MAINTENANCE OF EQUIPMENT; REIMBURSEMENT OF OPTOMED
(a) You shall comply with all laws, ordinances, regulations, requirements, and rules with respect to the use, maintenance, and operation of the Equipment; and
(b) take good and proper care of the Equipment and make all repairs and replacements necessary to maintain, preserve, and keep the Equipment in good condition and working order. You shall not make any alterations, additions, or improvements to the Equipment without the prior written consent of Optomed in each instance. All repairs, replacements, parts, devices, accessories, and improvements of whatsoever kind or nature furnished or affixed to the Equipment shall belong to and become part of the property of Optomed.
(c) In the event that You fail to preserve and maintain the Equipment, discharge all taxes, liens or charges, or pay all costs and expenses, as provided in this Agreement, Optomed, at its option, may do so. All such advances by Optomed shall be payable by You to Optomed on demand, together with interest thereon at the highest legal contract rate until paid.
SECTION 8
NOTICES
All notices from You relating to this Agreement shall be delivered to Optomed by email to orders.us@optomed.com or mail certified or registered, postage prepaid, at Optomed’s address shown in the first paragraph of this Agreement.
SECTION 9
USE, LOCATION, REMOVAL AND INSPECTION
Optomed shall have the right to inspect the Equipment during Your normal business hours and upon reasonable written notice.
SECTION 10
TAXES AND LICENSES
You shall pay all taxes, license fees and assessments and any penalties or interest for late payment, levied on the Equipment, or relating to this Agreement, exclusive of taxes measured by the income of Optomed. You shall provide Optomed receipts or other evidence of the payment of any such obligations. You shall file all returns required for the Equipment and furnish copies of all returns to Optomed.
SECTION 11
ASSIGNMENT BY OPTOMED
Optomed shall have the right to assign by operation of law or change of control its rights and obligations under this Agreement and to the Equipment without notice to You or Your consent. On any such assignment, the assignee shall succeed to all of Optomed’s rights in respect thereto. Such assignment shall relieve Optomed of its obligations to You hereunder and shall be construed as being an assumption of such obligations by the assignee. In addition, Optomed shall have the right to assign this Agreement as security or mortgage the Equipment, or both, in whole or in part, without notice to You or Your consent.
You agree to execute and deliver to Optomed promptly upon request an appropriate estoppel certificate to any secured party or mortgagee of any of the Equipment. If You are given notice of such assignment, You shall acknowledge receipt thereof in writing. Each such assignee, secured party, and/or mortgagee for security shall have all of the rights, but none of the obligations, of Optomed under this Agreement.
SECTION 12
RESTRICTIONS ON YOUR ASSIGNMENT
WITHOUT OPTOMED’S PRIOR WRITTEN CONSENT, WHICH MAY BE WITHHELD IN THE SOLE DISCRETION OF OPTOMED, YOU SHALL NOT ASSIGN, TRANSFER, PLEDGE, MORTGAGE, HYPOTHECATE, SELL, ENCUMBER OR OTHERWISE DISPOSE OF THIS AGREEMENT OR ANY INTEREST THEREIN OR SUBLET OR LEND THE EQUIPMENT OR PERMIT IT TO BE USED BY ANYONE OTHER THAN YOU AND YOUR EMPLOYEES.
SECTION 13
YOUR REPRESENTATIONS
You represent and warrant as follows:
(1) You acknowledge that the Equipment is a medical device and shall be used only according to its label, instructions for use, and directions. If the Equipment is to be used by someone other than You, You shall properly instruct the end user on proper utilization of the Equipment.
(2) You shall make no changes or modifications to the Equipment that could affect the Equipment’s safety, efficacy, or intended use, or otherwise alter the Equipment’s regulatory status with the United States Food and Drug Administration.
(3) You shall notify Optomed in writing of any complaints or adverse events potentially associated with the Equipment within seven working days of the applicable incident. Both You and Optomed shall comply with regulatory requirements applicable to each including, but not limited to, reporting to the appropriate regulatory authorities. You shall assist Optomed, as needed, in any investigations or requests for information.
(4) You shall immediately notify Optomed in writing of any inquiries or inspections by regulatory authorities relating to Equipment. You agree that Optomed shall have the sole right to handle discussions with regulatory bodies.
(5) You possess the requisite training, including all online training, to use Equipment properly and instruct any end user about appropriate Equipment usage. Furthermore,
You shall ensure that You have complied with applicable rules and regulations concerning any online orders You make through Optomed’s website.
SECTION 14
DEFAULT
Any of the following events or conditions shall constitute an event of default by You under this Agreement:
(a) Default in the payment of any sums due hereunder for a period of five (5) days after the same becomes due;
(b) Any other breach of any material term or condition of this Agreement;
(c) If any writ or order of attachment, execution or other legal access against You is levied on any or all Equipment and not released or satisfied within ten (10) days;
(d) If any certificate, statement, representation or warranty furnished by You or any of Your guarantors, if any, proves to be false in any material respect; or
SECTION 15
REMEDIES
Upon the happening of any event of default as set forth in Section 14, Optomed shall have the right to do any or all of the following without demand or notice of any kind:
(e) Declare due, sue for, and receive from You the sum of all amounts due and owing under this Agreement.
(f) Retake possession immediately of all Equipment and/or to remove the same from the Premises. You shall cooperate with and assist Optomed in connection with Optomed’s exercise of the foregoing rights and shall in no event seek to oppose or interfere with Optomed. Without limiting the generality of the preceding sentence, You shall not in any event oppose any application made by Optomed seeking relief from any automatic stay or otherwise seek to prevent Optomed from taking possession of the Equipment. Optomed shall be entitled to recover from You its other direct losses, expenses and damages and, in this regard, Optomed’s costs incurred in breaking down, packing, moving and reassembling the Equipment so that the Equipment is able to be used by Optomed or its assignee. For such purpose, Optomed may enter upon any premises where such Equipment is located and remove same therefrom without being liable to any suit, action or other proceeding by You. You shall be liable for Optomed’s direct expense of retaking possession, the removal of the Equipment, and the legal fees and expenses with respect thereto. YOU WAIVE ANY AND ALL RIGHTS TO A JUDICIAL HEARING WITH RESPECT TO THE REPOSSESSION OF THE EQUIPMENT BY OPTOMED.
(g) Terminate this Agreement as to any or all Equipment.
(h) Pursue any other remedies at law or in equity.
SECTION 16
FINANCING STATEMENTS
You hereby create and grant to Optomed a security interest in the Equipment, together with all replacements and proceeds thereof and all attachments and accessories now or hereafter installed therein or affixed thereto, in order to secure Your obligations as provided herein and all of Your additional indebtedness, costs, obligations and expenses provided in this Agreement. In addition to all remedies provided herein to Optomed, upon Your default, Optomed may exercise its rights of enforcement and shall have all remedies under the Uniform Commercial Code (the “UCC”) applicable in any jurisdiction (or any successor legislation to any such statute) as Optomed be required by law. It is understood that the above security interest has been granted in excess of caution in the event this Agreement should be construed by a court of competent jurisdiction as an installment sale. Accordingly, provisions of this Section 16 shall not lessen or restrict, but shall be in addition to, all of Your other obligations under this Agreement.
You irrevocably and unconditionally authorizes Optomed (or its agent) to file at any time and from time to time as Optomed may require such financing statements with respect to the Equipment, together with all replacements and proceeds thereof and all attachments and accessories now or hereafter installed therein or affixed thereto, naming Optomed (or its agent) as the secured party and You as the debtor, together with any amendments and continuation with respect thereto, which authorization shall apply to all financing statements filed on, prior to or after the date hereof. This is a true lease; any filing is solely precautionary.
You shall execute and deliver to Optomed, upon Optomed’s request, such instruments and assurances as Optomed deems necessary for the confirmation or perfection of this Agreement and Optomed’s right hereunder. In furtherance thereof, Optomed may file or record this Agreement or a financing statement with respect thereto as to give notice to any interested parties. Any such filing or recording shall not be deemed evidence of any intent to create a security interest under the UCC or other applicable law as required in such jurisdiction.
SECTION 17
ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties and shall not be modified except by a written instrument signed by each of the Parties.
SECTION 18
SEVERABILITY
If any provision of this Agreement is prohibited by law in any applicable jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such prohibition without invalidating the remaining provisions hereof.
SECTION 19
INDEMNITY
You shall indemnify Optomed against and hold Optomed harmless from any and all claims, actions, damages, costs, including reasonable attorney’s fees, obligations, liabilities, and liens (“Claims”) arising out of the lease, use, possession, storage, delivery or return, operation, maintenance, renting, control or other disposition of the Equipment, or in any way connected therewith, except to the extent such Claims are the result of the negligence or misconduct of Optomed or its employees or agents. Upon institution of any action against Optomed for any claim, action, damages, obligation, liability, or lien, You shall assume full responsibility for the defense thereof. The provisions of this Section 19 shall survive termination of this Agreement.
SECTION 20
GOVERNING LAW; JURISDICTION;
VENUE; WAIVER OF JURY TRIAL
(a) This Agreement and any dispute, claim or controversy arising out of or relating to this Agreement, or the breach, termination or validity thereof, are governed by the laws of the State of New York without regard to its principles and rules on conflict of laws.
(b) You hereby irrevocably (i) agrees that any suit, action or other legal proceeding brought by or on behalf of Optomed, its successors or assignees, arising out of or relating to this Agreement be brought in any state or federal court in New York, (ii) consents to the jurisdiction of each such court in any such suit, action or proceeding and (iii) waives any objection which it may have to the laying of venue of any such suit, action or proceeding in any of such courts and any claim that any such suit, action or proceeding has been brought in an inconvenient forum.
(c) THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT.
SECTION 21
BUSINESS PURPOSES
You represent that the Equipment is being leased for business purposes, and agree that under no circumstances shall this Agreement be deemed or construed as a consumer contract.
END OF AGREEMENT