1. Sale. The buyer listed above (“Customer”) has entered into this purchase agreement (this “Agreement”) for the purchase of Cynosure equipment (“Product(s)”) and agrees to be bound by these Terms and Conditions. If Customer is a corporate entity (i.e. not a person), the person signing above on such corporate entity’s behalf agrees to be bound by these Terms and Conditions as well.
2. Prices and Payment. The quoted price is valid for 30 days from the above date. This price does not include freight or taxes. A deposit of 15% of the purchase price is due at the time of signing. The deposit may be paid by check, wire, ACH, or credit card (VISA/Mastercard/American Express accepted). Deposits are non-refundable. Customer shall pay all taxes, fees, duty, levy or charges imposed by a governmental authority. Applicable taxes will be invoiced separately and itemized unless Customer supplies a valid tax-exempt certificate prior to delivery of the Products. Payment is due net 30 days of invoice. The balance may be paid by check, wire or ACH (credit cards are only accepted for deposits). Accounts 30 days or more past due shall accrue interest at the rate of 18% per annum or the maximum rate permitted by law, whichever is lower. Payment is not contingent upon installation and/or acceptance and/or Customer’s attainment of third-party financing. In the event Customer fails to make timely payment, the warranty described below shall be void and of no effect. In addition, Customer shall reimburse Cynosure for all costs of collection, including payment to collection agencies as well as attorneys’ fees and court costs.
CUSTOMER AGREES THAT IN CONSIDERATION OF CYNOSURE’S AGREEMENT TO ACCEPT PAYMENT BY CREDIT CARD, SHOULD ANY DISPUTE ARISE BETWEEN THE PARTIES, CUSTOMER WILL NOT SUBMIT A “CHARGE BACK” OR OTHERWISE DISPUTE THE CHARGE TO THE CREDIT CARD COMPANY. ALL SUCH DISPUTES WILL BE RESOLVED BETWEEN THE PARTIES WITHOUT INVOLVEMENT OF THE CREDIT CARD COMPANY. SHOULD CUSTOMER SUBMIT A CHARGE BACK IN VIOLATION OF THIS PROVISION, CUSTOMER AGREES THAT THIS PARAGRAPH WILL BE SUBMITTED TO THE CREDIT CARD COMPANY IN RESPONSE TO SUCH CHARGE BACK AND THAT THE CHARGE BACK SHALL BE DENIED AS A RESULT.
3. Shipping. Shipping terms are FCA, Cynosure Facility, Incoterms 2020. Risk of loss, destruction of or damage to the Products shall be Cynosure’s until delivery of the Products to a common carrier at Cynosure’s facility. Unless otherwise indicated herein, all prices do not include transportation and shipping costs to Customer’s designated location via common carrier and standard ground shipping. Any extra charges for special deliveries are prepaid by Cynosure and added to Customer’s invoice.
4. All Sales Final. ALL SALES ARE FINAL. CYNOSURE GRANTS NO RIGHT OF RETURN. IF CUSTOMER REFUSES OR DECLINES DELIVERY OF PRODUCT(S) AT ANY POINT IN THE DELIVERY PROCESS, OR DECLINES OR REFUSES INSTALLATION OR TRAINING, CUSTOMER SHALL PAY CYNOSURE THE GREATER OF CYNOSURE’S ACTUAL ASSOCIATED COSTS OR $10,000 FOR COSTS RELATED TO CANCELLATION AND RESTOCKING IN ADDITION TO ANY OTHER FEES APPLICABLE UNDER THESE TERMS AND CONDITIONS.
5. Security Agreement. To secure the purchase price, Customer hereby grants Cynosure a purchase money security interest in the Products, and the proceeds of any sale thereof. Customer grants Cynosure a limited power of attorney coupled with an interest to execute financing statements or to take any other action on Customer’s behalf necessary or appropriate to perfect the security interest granted herein. Customer unconditionally agrees to execute such additional documents as may be necessary to enforce or protect Cynosure’s interests.
6. Inspection; Returns. Within three (3) days of receipt of the Products, Customer shall inspect the Products, read the owner’s manual and accompanying documentation and give written notice of any error or claim that the Equipment does not conform to this Agreement. A Return Material Authorization (“RMA”) will be provided by Cynosure for any Equipment to be returned. Accepted returns are subject to the charges, terms and requirements notified in writing to Customer (which may include, without limitation, a 35% restocking fee). No act by Cynosure (including receipt of returned Equipment) shall constitute Cynosure’s acceptance of returned Equipment unless Cynosure previously provided an RMA. Authorization for return is at the sole discretion of Cynosure. All returned Product must be returned in the same condition as it was received, including all parts, packaging and accessories.
7. Limited Warranty. Cynosure warrants to the original purchaser that the Product (excluding consumable or disposable components or accessories, such as handpieces, electrodes, forceps and probes, and any additional replacement parts, which will be subject to warranty terms, if any, included therewith) will be free from defects in materials and workmanship, under normal use and service, for the shorter of: (a) twelve (12) months from the date of installation; or (b) fifteen (15) months from the date of Customer’s receipt of the Product. A warranty period shall not be tolled or extended for any period during which any product or part is being transported, repaired, serviced, or replaced by Cynosure. Warranties are non-transferable. Removed, replaced, or substituted Products and parts (“Returned Equipment”) will become Cynosure’s property with title and ownership transferring to Cynosure upon the earlier of its return to or replacement by Cynosure who shall owe no other obligations on the Returned Equipment. Cynosure, in its sole discretion, may utilize any third party of its choosing to perform any preventative maintenance, servicing or repair of the Products.
THE OBLIGATIONS OF CYNOSURE UNDER THIS WARRANTY ARE LIMITED, IN ITS EXCLUSIVE OPTION, TO REPAIR OR REPLACE PARTS AND MATERIALS WHICH PROVE TO BE DEFECTIVE, EITHER AT THE CUSTOMER’S LOCATION OR UTILIZING A DEPOT SERVICE FACILITY, AS DETERMINED BY CYNOSURE IN ITS SOLE DISCRETION. CYNOSURE MAY USE REPAIRED, REBUILT OR REFURBISHED PARTS AS NECESSARY IN MAKING REPAIRS UNDER THIS WARRANTY.
THE FOREGOING LIMITED WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY OBLIGATION OF CYNOSURE, AND THE REMEDY PROVIDED ABOVE IS IN LIEU OF ANY AND ALL OTHER REMEDIES. CYNOSURE DISCLAIMS ALL OTHER REPRESENTATIONS, AGREEMENTS, GUARANTEES, CONDITIONS, AND WARRANTIES, ORAL, WRITTEN, STATUTORY, EXPRESS, OR IMPLIED, WITH RESPECT TO ANY CYNOSURE PRODUCT, OTHER GOODS, AND SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS. IN NO EVENT SHALL CYNOSURE OR ITS EMPLOYEES BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, DIRECT, SPECIAL DAMAGES, LOSS OF PROFITS, REVENUE, OR USE, THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, OR SERVICES, OR ANY OTHER DAMAGES DUE TO ANY CAUSE WHATSOEVER EVEN IF CYNOSURE HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO CASE WILL CYNOSURE’S MAXIMUM LIABILITY EXCEED THE TOTAL SALE AMOUNT FOR THE PRODUCTS SET FORTH IN THE PURCHASE ORDER. THE CUSTOMER AGREES THAT CYNOSURE’S LIABILITY IS SO LIMITED.
The foregoing limited warranty shall be void and of no effect if: (a) there is damage to or failure of the Product as a result of the Product being unpacked, installed, serviced, and/or repaired by person(s) other than an authorized Cynosure service representative; (b) service is required due to the Customer’s failure to operate or maintain the Product in a manner consistent with the specifications and guidelines set forth in the Product’s operator manual, as determined by Cynosure; (c) the serial number on the Product has been removed; (d) service is required due to attempted or actual dismantling, disassembling, alteration, and/or modification of the Product by person(s) other than an authorized Cynosure service representative, as determined by Cynosure; or (e) the Product is resold, leased or rented to or for the use by any other person other than the original purchaser without Cynosure’s consent.
8. Loaned Products. Should Cynosure for any reason loan any product or part (“Loaner”) to Customer which is not returned to Cynosure upon the earlier of an agreed-upon date or Cynosure’s demand, Customer will pay Cynosure the list price of the unreturned Loaner within 7 days of invoice.
9. Exclusions. No representation or warranty will be implied from any description of, or claims regarding, the Product or its effectiveness or ability to achieve any particular clinical results, whether written or oral, contained in the specifications, samples, bulletins, marketing or promotional materials or similar statements made or furnished to Customer by any person. Use of the Product requires the exercise of sound medical judgment, and clinical results may vary based on operator skill and experience, patient suitability, patient response to treatment, and other factors beyond the control of Cynosure. Cynosure makes no representation or warranty of revenue or profits from use of the Product, and no such representation or warranty shall arise from projections, studies, illustrations, marketing or promotional material, or other statements made to Customer.
THE CUSTOMER AFFIRMS THAT HE OR SHE HAS NOT BEEN INFLUENCED TO ENTER INTO THIS TRANSACTION, NOR HAS HE OR SHE RELIED IN ANY WAY UPON ANY WARRANTIES OR REPRESENTATIONS NOT SET FORTH IN THIS INSTRUMENT, INCLUDING WITHOUT LIMITATION ANY WRITTEN OR ORAL REPRESENTATIONS, STATEMENTS, TERMS, OR CONDITIONS CONCERNING THE PRODUCT(S) AND/OR SERVICE(S) TO BE PROVIDED BY CYNOSURE, THE QUALITY OF ANY SUCH PRODUCT(S) OR SERVICE(S), OR THE EXTENT TO WHICH SUCH PRODUCT(S) OR SERVICE(S) MAY GENERATE REVENUE. CUSTOMER ACKNOWLEDGES AND ACCEPTS THAT CYNOSURE DOES NOT CONFER ANY EXCLUSIVE RIGHTS UPON CUSTOMER, GEOGRAPHIC OR OTHERWISE, TO USE ANY PRODUCT OR SERVICE. CUSTOMER FURTHER ACKNOWLEDGES AND ACCEPTS THAT REFERRING PHYSICIANS AND PRACTITIONERS WITH WHOM CUSTOMER CONSULTED PRIOR TO PURCHASING THE PRODUCTS MAY HAVE A FINANCIAL RELATIONSHIP WITH CYNOSURE AND/OR ITS AFFILIATES.
10. Liability Disclaimer. Customer acknowledges that proper operation of the Product requires use of supplies specifically engineered to meet Cynosure’s compatibility, quality and performance standards. Accordingly, Cynosure products are specially designed for use with Cynosure-approved parts only and use of third party products and services are at the customer’s own risk. In the event Customer uses any third party parts that are not certified or authorized in writing by Cynosure, then Cynosure is not liable for any loss or damage whatsoever that may occur after such items are used by Customer (including damage to the Product as well as personal injury and property damage). Cynosure reserves the right to determine from time to time which third party parts are certified and authorized.
11. Services. The Customer may purchase additional services, including, but not limited to telephone support, repair, maintenance, and refurbishment of equipment. Except for any services expressly set forth in the first page of this Agreement, services related to the Products can be purchased by Customer under a separate agreement, detailing the separate terms and conditions of such services.
12. Financing and Assignment. Customer may elect, at its sole option, to obtain financing from a third party to fund its purchase of Cynosure products. Any contracts, terms or arrangements entered into between a customer and any third-party financing company are strictly between those parties, and Cynosure is not and shall not be responsible or liable for any such terms or arrangements. This Agreement binds Customer, regardless of any financing arrangements, subrogations or assumptions. Customer may not assign its rights or delegate its obligations hereunder except with the prior written consent of Cynosure (which consent may be withheld in its sole discretion).
13. Disclaimer of Liability for Third Party Marketing Products and Services. As part of its service to Customer, Cynosure may offer products or services that are provided by third-party vendors (“Third Party Services”). CYNOSURE DISCLAIMS ANY AND ALL LIABILITY, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES, WHETHER ORAL OR WRITTEN, FOR SUCH THIRD-PARTY SERVICES. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATION HAS BEEN MADE BY CYNOSURE AS TO THE FITNESS OF THE THIRD-PARTY SERVICES FOR THE CUSTOMER’S INTENDED PURPOSE. CUSTOMER ACKNOWLEDGES THAT CYNOSURE, ITS AGENTS AND EMPLOYEES MAY RECEIVE COMPENSATION FROM THIRD-PARTY VENDORS AS A RESULT OF REFERRING CUSTOMER FOR THIRD-PARTY SERVICES AND/OR A PORTION OF CUSTOMER’S TOTAL PURCHASE PRICE MAY BE UTILIZED BY CYNOSURE TO FUND THESE SERVICES. CUSTOMER FURTHER ACKNOWLEDGES THAT ANY TERMS OR ARRANGEMENTS ENTERED INTO BY CUSTOMER AND A THIRD-PARTY VENDOR REFERRED BY CYNOSURE ARE STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY VENDOR AND CYNOSURE SHALL NOT BE LIABLE FOR ANY SUCH TERMS OR ARRANGEMENTS, OR ANY POTENTIAL DAMAGES OR LOSSES SUFFERED CAUSED BY SUCH TERMS OR ARRANGEMENTS.
14. Data Collection: Cynosure reserves the right to collect system usage data from time to time for the purpose of running diagnostics and improving usability and performance of the Product. Data collected will not contain any patient identification information. Cynosure makes no commitment to review or share this information with Customer and Customer agrees that it has no expectation that this information will be reviewed or shared.
15. Geolocation. Customer hereby acknowledges and agrees to the collection of geolocation information, use of IoT and OTA, as more fully set forth in Exhibit A.
16. Privacy Notice. Customer hereby directs Cynosure to share with Cynosure’s practice transformation plan partners Customer’s information (including Customer’s business contact details, practice name and location, practice type, job title, marketing package selected, and the nature of Customer’s transaction with Cynosure) for the purposes of helping Customer market its services, including services that utilize Cynosure devices as further described in Cynosure’s Privacy Notice located at https://www.cynosure.com/privacy-policy/.
17. Use of the Product; Licenses and Authorizations. Applicable law may restrict the use of the Product to physicians, nurses or other licensed practitioners licensed in the jurisdiction in which the Product is used. Customer is solely responsible for the use and operation of the Product in accordance with all applicable laws and regulations, all applicable state medical review board guidelines, and medical and treatment guidelines, and for ensuring that each operator of the Product is adequately trained and qualified to use and operate the Product safely and properly and to treat patients in accordance with such laws, regulations and guidelines, which are subject to change. Cynosure makes no representations or warranties regarding federal, state or local laws and regulations, or medical or treatment guidelines that may apply to the use and operation of the Product. Use of the Product may involve certain risks of injury to patients. Customer is solely responsible for contacting federal, state and local licensing agencies regarding requirements applicable to the use and operation of the Product. Customer is responsible for timely obtaining all necessary licenses, certifications, authorizations, permits, approvals and consents required in connection with the purchase and use of the Product in the state in which Customer is located and in the state in which the Product is used. Customer acknowledges that its use of the Product (including the software) is subject to compliance with the usage and other requirements described in this Agreement (including, without limitation, the provisions in this paragraph). Customer’s authorization to operate the Product and license to the software will terminate automatically in the event Customer fails to comply with such requirements. In such event, in addition to any other remedies available to Cynosure under applicable law, Customer expressly agrees that Cynosure will have the right to cease selling Products to the Customer, including but not limited to replacement parts, supplies and consumables.
18. Intellectual Property. Upon completion of training, Customer shall become an authorized provider of Cynosure products and authorized in connection therewith to use Cynosure trademarks solely in its promotion and delivery of services utilizing Cynosure products, and in accordance with any guidelines provided by Cynosure from time to time. However, Cynosure strictly prohibits Customers from purchase and/or use of internet domain(s) consisting of or incorporating any of the Cynosure trademarks and Customer agrees not to purchase and/or use the same. Customer acknowledges Cynosure’s exclusive ownership of Cynosure trademarks and that its use thereof inures solely to Cynosure’s benefit. Customer shall not attempt to obtain registration of any Cynosure trademark, and shall not debrand, rebrand or private label any Cynosure product or service.
19. Confidentiality. Cynosure respects the confidentiality of contractual relationships. Customer agrees to respect this relationship by not disclosing any information regarding product pricing, discounts, rebates, payment terms, or other financial terms of this Agreement to any third party (other than Customer’s legal, financial, or tax advisors on a need-to-know basis) during the term of this Agreement and for a period of five (5) years thereafter. Customer acknowledges that any breach of this provision would cause irreparable harm to Cynosure for which monetary damages would be an inadequate remedy, and that Cynosure shall be entitled to seek equitable relief, including injunction, in addition to all other remedies available at law.
20. Force Majeure. Timely performance of the obligations hereunder is excused due to events that are unforeseeable and beyond the control of the party (“Acts of Force Majeure”). Acts of Force Majeure include, but are not limited to, acts of God, acts or omissions of any government entity; fire or other casualty for which a party is not responsible, quarantine or epidemic, strike; disruption of sources and unusually severe weather conditions. The existence of any of the foregoing Acts of Force Majeure shall be determined on a day by day basis. No failure to declare an Act of Force Majeure shall constitute a waiver of either party’s right to subsequently declare or extend an Act of Force Majeure.
21. General. This Agreement supersedes all prior and/or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter hereof. If any provision of this Agreement is for any reason found to be unenforceable, the remainder of this Agreement will continue in full force and effect to the maximum extent possible. Failure to enforce any rights hereunder, regardless, of the length of time of such non-enforcement, shall not constitute a waiver of those rights or any other rights unless in writing signed by the party waiving such rights. This Agreement shall survive a change-in-control of Cynosure. This Agreement may be executed by facsimile or electronic communications and in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.
Cynosure is an Equal Opportunity Employer.
EXHIBIT A TO PURCHASE AGREEMENT- XERF™, MOSAIC AND eCO2™
Notice and Consent to Collection of Geolocation Information, Use of IoT and OTA:
The Xerf, Mosaic and eCO2 devices include a location tracking feature that will allow Cynosure to determine the precise location of Customer’s Cynosure device. Cynosure collects this information so that Customer’s Cynosure device can be located in the event it has been stolen or misappropriated. The location tracking feature is continuously enabled while the Customer uses the Cynosure device. The Device Location Data (defined below) will be collected each time the Cynosure device changes state and, unless you withdraw your consent earlier, shall be retained until the Cynosure device next changes state and updated Device Location Data is collected. If your device is stolen or misappropriated, you may contact Cynosure at [email protected].
In addition, the Xerf, Mosaic and eCO2 devices include IoT functionality. IoT enables Cynosure to connect to the Cynosure device and exchange information with it over the internet. Cynosure uses IoT to provide remote assistance. Remote assistance support allows a Cynosure professional to access and review non-personal data from your Cynosure device to improve system performance and diagnose system faults. Remote assistance support allows the device to autonomously transmit diagnostic and telemetry information to Cynosure. The information is transmitted using an HTTPS based protocol via Wi-Fi- or a mobile network. All data is stored and analyzed using the Microsoft Azure Cloud third party server platform.
Likewise, Xerf, Mosaic and eCO2 devices include OTA functionality. OTA enables Cynosure to wirelessly deliver software or firmware upgrades, bug fixes, and new features to connected devices over the internet or cellular networks. OTA eliminates the need for physical connections like USB drives, saving time, cost, and improving security by patching issues quickly. The process involves notifying the device, downloading the (often partial) update, verifying it, and then installing it, often requiring a reboot, similar to how your phone updates.
By signing this purchase agreement, Customer gives its express consent, on behalf of itself and its users of the Cynosure device, for Cynosure: (1) to collect, use, and process the precise location data of Customer’s Cynosure device, including GPS coordinates (collectively, the “Device Location Data”), for theft prevention and device recovery purposes; (2) to collect, use and process diagnostic and telemetry information from your device to improve system performance and diagnose system faults; and (3) to wirelessly deliver software or firmware upgrades to your device. Customer, and the individual executing this Agreement as Customer’s duly authorized representative, represent and warrant that they have all requisite authority to give the foregoing consent on behalf of all of Customer’s users of the Cynosure device, that Cynosure’s use of such geolocation services, IoT and OTA will not interfere with Customer’s other devices and/or property and that Cynosure will not be held liable for any interference with Customer’s other devices and/or property.
This consent is voluntary and can be withdrawn in part or in full at any time by contacting Cynosure at [email protected]. Please note that if Customer withdraws its consent to collection of Device Location Data, Cynosure will no longer be able to assist Customer with locating the Cynosure device in the event it is stolen or misappropriated. If Customer withdraws its consent to IoT, Cynosure will not be able to provide remote assistance. If Customer withdraws consent to OTA, Cynosure will not be able to provide software or firmware upgrades wirelessly. Please review Cynosure’s full Privacy Notice at https://www.cynosure.com/privacy-policy/ for more information about its data handling practices.