Terms and Conditions of Sale

Receipt by Rohrer of the electronically-executed attached quote, Rohrer’s standard purchase order form, or other acceptable confirmation of sale provided to Customer by Rohrer (the “Order Form”), which expressly incorporate these Terms by reference, is required prior to the sale of Products or services by Rohrer. In the circumstance of an inconsistency between the terms of an Order Form and these Terms, the provisions of these Terms shall control. No communication, prior or subsequent hereto, shall act to modify, amend, or reject any term or condition stated in these Terms or in the Order Form, unless expressly agreed in writing by a duly authorized officer of Rohrer. The parties acknowledge that Rohrer’s receipt of an electronically-signed Order Form from Customer constitutes a binding legal commitment between the parties and is not subject to cancellation absent Rohrer’s written consent.

All prices and fees shall be as set forth on the Order Form, unless specified otherwise by Rohrer. Customer acknowledges that certain fees, sales taxes, logistics expenses, or other similar charges specified on the Order Form are only an estimate and will be calculated at the time of shipment and/or invoicing and will be charged to the credit card or other payment method provided. Customer shall pay all applicable taxes, duties, tariffs and any other governmental charges incurred, imposed, charged or assessed to either party in connection with the sale of the Products, whether set forth on the Order Form or otherwise, except taxes on income to Rohrer. If Rohrer is required to pay any such taxes, fees, duties, tariffs, or charges (other than taxes on income to Rohrer), Customer shall reimburse Rohrer therefor upon request. Customer shall be required to timely remit full payment, a non-refundable deposit, or partial payment prior to shipment of the Products, in Rohrer’s discretion and as set forth on the Order Form or a separate payment plan. Unless otherwise set forth on the Order Form, Customer shall pay all invoiced amounts in full and on time. All checks must be payable to: Rohrer Aesthetics, Inc. unless specified otherwise by Rohrer in writing. Customer acknowledges and agrees that all deposits, pre-payments, and any subsequent payments are non-refundable unless otherwise set forth in the Order Form. Payment is due from Customer net 30 days from the invoice date. Invoices aged past thirty (30) days from the invoice date will be assessed a late payment fee in the amount of 5.0% of the outstanding invoice amount, which Rohrer may assess in addition to, and not substitution of, any other rights and remedies it may have under law, equity or under these Terms, including any interest authorized under applicable law or its rights under these Terms. Customer shall pay any amounts incurred by Rohrer in the collection of past due amounts owed including, without limitation, reasonable attorneys’ fees and collections costs. A 3.0% surcharge, or such other percentage as may be set forth in the Order Form, will be added to all balances that are paid by credit card. Further, Customer shall, upon request of Rohrer at any time, provide to Rohrer credit card or similar banking information reasonably necessary to permit Rohrer to charge open balances under the Order Form and these Terms and authorizes any payments due to be charged to any credit card on file including all open balances on Customer’s account and any and all additional fees and surcharges set forth in these Terms or otherwise agreed upon by the parties. Customer acknowledges and agrees that Rohrer or its designee, has the authorization to bill or charge Customer for any outstanding balances or amounts owed and, to the extent necessary, perform a credit check or any other reasonable credit inquiry at any time. This authorization shall remain in effect until all outstanding balances are paid in full.

Delivery of the Products shall be made under the delivery terms set forth in the Order Form. If no terms are indicated in the Order Form, the terms shall be Ex Works (Rohrer Facility) (Incoterms 2020). All delivery dates are estimates only. Unless specified otherwise by Rohrer in the Order Form, all transportation, shipping and handling charges shall be paid by Customer. Rohrer has the right to determine the carrier, method and routing of shipment. All risk of loss for the Products shall transfer to Customer upon tender of the Products at Rohrer’s facility as set forth in this Section. Customer acknowledges that the Products are custom medical devices and may not be returned to Rohrer under any circumstances other than as a result of Rohrer’s request or by the express written agreement and approval of a duly authorized Rohrer Finance and Accounting representative.

Rohrer Aesthetics will provide a clinical training with the purchase of certain Rohrer Products. Customer and Rohrer shall work expeditiously and in good faith to set up a clinical training date. The Customer acknowledges and agrees Customer shall not use or allow applicable Rohrer Products to be used until Customer completes all relevant clinical training for applicable Products. For the avoidance of doubt, Customer’s failure to comply with the training requirement or inability to use the Product for any reason shall not relieve Customer of its obligation to make full and timely payments for the Products.

Rohrer reserves the right to make changes to services and/or products built and/or sold by Rohrer at any time without incurring any obligation to make the same or similar changes on products or services previously built and/or sold to Customer or otherwise. Rohrer may change any of its programs or services, including but not limited to cancellation, in whole or in part, of any existing offerings, for any reason, provided Rohrer will provide advance notice of any such change if it materially impacts Customer. For regulatory compliance, medical oversight, and training purposes, Rohrer documents and tracks the Product(s) delivered to Customer. Customer shall ensure that all Products are operated in accordance with all labels, instructions for use and other instructional and training material provided by Rohrer or its designee to Customer and in accordance with Customer’s applicable state medical regulations and all other applicable state and federal laws. Customer acknowledges that refurbished Products are not FDA-cleared, do not meet the strict manufacturing and quality controls of Rohrer, and may result in patient safety concerns. Customer further acknowledges that Rohrer is the only authorized service provider for the Products, unless specified otherwise, and that use of an unauthorized service provider will immediately void any and all warranties (including, without limitation, the Manufacturer’s Warranty and/or Extended Warranty), or Service Agreements (as each of those terms are defined below) in effect. Customer agrees that, to the extent Customer uses Products that have been serviced by anyone other than Rohrer or have been refurbished, Rohrer disclaims, to the fullest extent permitted under applicable law, any and all liability for any claims, losses, damages, and/or adverse events that occurs. In addition, because Rohrer is unable to regulate the quality of refurbished Products, Customer acknowledges that Rohrer is required to notify the FDA of any known violations, as well as any individuals suspected of being involved in these unlawful practices. Customer shall cause its personnel and agents to comply with these Terms and all applicable laws and regulations in connection with any use, storage, and maintenance of the Products, and shall be liable for all breaches and non-compliances hereunder. Customer acknowledges that it relies solely on its own skill and judgement in all respects and in particular: (i) in its decision to purchase the Products or use of the Products, and (ii) that the Products are fit for the purpose for which they are being acquired. It shall be Customer’s sole responsibility to ensure that the Products are fit for the purpose intended. Rohrer disclaims all responsibility and liability for any products or equipment purchased by Customer or by Rohrer on Customer’s behalf from any third parties. The terms and conditions of such third party covering such products or equipment shall be applicable to and controlling on Customer, and Customer’s sole and exclusive warranty and remedies with respect to such products or equipment shall be set forth in Customer’s agreement with the applicable third party.

As security for the payment of the purchase price of the Products and performance in full of all the obligations of Customer under these Terms, Customer hereby grants to Rohrer, and Rohrer shall retain, a purchase money security interest in and to any Products presently in the possession of, or hereafter acquired by, Customer, and if Customer shall have sold the Products to any third party, the proceeds of resale (or claim thereto) shall belong to Rohrer. Customer hereby appoints Rohrer as its attorney in fact to file any document, including without limitation a UCC-1 financing statement, with any state or other governmental authority, as is necessary or desirable to perfect, continue, modify or terminate this security interest. Customer grants to Rohrer and Rohrer reserves the unconditional and irrevocable right to enter the premises where the Products are located and take all necessary action to take control of and repossess any of the Products. Customer shall be solely responsible for and waives all claims for damages and losses, physical or pecuniary, caused thereby whether suffered by Customer or a third party, and shall pay all costs and expenses incurred by Rohrer in repossessing the Product. Further, Rohrer retains the right to report Customer’s failure to pay to the appropriate credit reporting service(s) and/or Credit Bureaus.

1. Device Warranty. Rohrer’s warranty(ies) to Customer with respect to any purchased Products that are deemed Warranted Devices (as that term is defined in Attachment 1) are set forth in Attachment 1 attached hereto and incorporated herein by reference (the “Warranty Terms”), and Customer acknowledges and agrees that Rohrer’s obligations to Customer under the Warranty Terms are subject to the terms and conditions set forth herein and the Warranty Terms. For the avoidance of doubt, all references to “Products” throughout these Terms and the Warranty Terms shall be deemed to include “Warranted Devices.”
   
2. Accessory Warranty. For consumables, accessories, or any other parts, Rohrer warrants to Customer that such consumables, accessories, and parts shall conform in all material respects to manufacturer’s specifications from delivery through any expiration date or period stamped or as otherwise specified with respect to such consumable or accessory or, if no such expiration date or period is specified, as of delivery of such consumable or accessory.
   
3. Service Agreement. Rohrer may offer agreed upon repair and maintenance services for certain Products after the expiration of the Manufacturer’s Warranty and/or Extended Warranty (as those terms are defined in the Warranty Terms), if applicable, which can be purchased by Customer subject to the terms and conditions of a service agreement provided to Customer by Rohrer at such time (a “Service Agreement”) including, without limitation, Customer’s timely payment of the annual price(s) for such Service Agreement. Any and all Service Agreements pertaining to Products purchased by Customer under these Terms shall be subject to and governed by these Terms, unless specified otherwise in the Service Agreement. Any inconsistencies between the terms of any such Service Agreement and the terms herein shall be resolved in favor of the terms set forth in such Service Agreement.
   
4. EXCEPT FOR AS SET FORTH IN THIS SECTION AND THE WARRANTY TERMS, ROHRER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO ANY PRODUCTS SOLD BY ROHRER OR ON ROHRER’S BEHALF, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, NON-INFRINGEMENT, OR OTHERWISE, AND EXPRESSLY DISCLAIMS THE SAME. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND ROHRER’S SOLE LIABILITY, FOR BREACH OF ANY OF THE WARRANTIES IN THESE TERMS SHALL BE, IN ROHRER’S SOLE DISCRETION, PROMPT REPAIR OR REPLACEMENT OF THE DEFECTIVE PRODUCTS, PROVIDED CUSTOMER NOTIFIED ROHRER IN WRITING OF THE NONCONFORMITY OR DEFECT WITHIN FIVE (5) DAYS OF CUSTOMER’S DISCOVERY OF THE DEFECT OR NONCONFORMITY AND ROHRER DETERMINED THAT SUCH NONCONFORMITY OR DEFECT WAS NOT A RESULT OF ANY ACTS OR OMISSIONS OF CUSTOMER, CUSTOMER PERSONNEL, ANY WARRANTY EXCLUSIONS, ANY EVENTS NEGATING THE WARRANTY, OR ANY THIRD-PARTY OUTSIDE ROHRER’S CONTROL, OR ANY THIRD-PARTY OUTSIDE ROHRER’S CONTROL.
   
5. Limitation of Liability: TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ROHRER, ITS AFFILIATES, PARENTS, SUBSIDIARIES, SUPPLIERS, LICENSORS, OR EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (“ROHRER PARTIES”) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THE PRODUCTS, SERVICES, ORDER FORM, THESE TERMS, OR THE SALE OF ANY PRODUCTS, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, EVEN IF ROHRER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY APPLIES TO ALL CLAIMS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE OF ROHRER OR ROHRER PARTIES), OR ANY OTHER LEGAL THEORY, INCLUSIVE OF ANY CLAIMS OF THIRD PARTIES, INCLUDING CUSTOMER’S CLIENTS. IN NO EVENT SHALL ROHRER’S OR ROHRER PARTIES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, THE WARRANTY TERMS OR ANY SERVICE AGREEMENT, OR OTHERWISE IN CONNECTION WITH THE PRODUCTS OR SERVICE, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE OF ROHRER OR ROHRER PARTIES), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO ROHRER FOR THE PRODUCTS OR SERVICES TO WHICH THE CLAIM RELATES.
   
6. Indemnification. At all times, Customer shall be solely responsible for determining the appropriate use of the Product for each patient or customer, including treatment choices, and cannot hold Rohrer liable for any medical, aesthetic, or cosmetic decisions made based on the Product’s information or functionality. Customer agrees to indemnify, defend and hold harmless Rohrer and Rohrer Parties from and against any losses, claims, obligations, lawsuits, demands, assessments, penalties, liabilities, costs, damages, expenses (including reasonable attorneys’ fees, expert fees, and costs of pursuing insurance coverage or reimbursement) and all other claims asserted against or incurred by Rohrer or Rohrer Parties by reason of or resulting from: (1) any acts or omissions (including but not limited to negligence and intentional misconduct) of Customer or any of its agents, employees, contractors or personnel (“Customer Personnel”); (2) any use, handling, misuse or mishandling of the Products (including but not limited any marketing, communications with customers, patients, and other third parties, labeling, regulatory compliance, inspection, repair, and maintenance of the Products) by Customer or Customer Personnel; (3) violation of laws by Customer or Customer Personnel, (4) sale or use of the Products to the extent stemming from licensing requirements, prescriptive authority, or legal ability to operate any individual Product under any state or federal board rules, regulations or guidelines; and/or (5) breach of any representation, warranty or covenant contained in the Order Form, these Terms, or any other agreement between Rohrer and Customer.
   
7. Compliance with Laws. Customer shall comply with all applicable laws in the conduct of its business and all Rohrer instructions, labels, applicable laws and regulatory obligations in connection with Customer’s purchase, use, handling, and storage of the Products. Federal, state or local law may restrict the sale of a Product to or at the order of a physician, healthcare professional, dentist, veterinarian or other practitioner licensed in the jurisdiction in which such Product is used or ordered (each, a “Restricted Product”). Any Customer that orders any Restricted Product warrants and represents either that (a) Customer is a practitioner licensed by the laws of the jurisdiction in which the Customer practices to use, or order the use of, each Restricted Product ordered by such Customer or its designee (an “Authorized Practitioner”), or (b) Customer is purchasing each Restricted Product pursuant to a prescription or other order issued by an Authorized Practitioner. Customer is solely responsible for knowing the licensing requirements by any applicable state or federal governing board or regulatory body, with regard to the ownership, operation and use of all Rohrer Products, including any and all procedures performed with such Products at all times. Further, in the jurisdiction in which any Product will be used, Customer warrants and represents that Customer has had opportunity to investigate such requirements, as well the opportunity to consult with legal counsel or independent advisers on these matters and is choosing to purchase the Products based upon their own judgment, research and/or advice. No communication (written or oral) that the Customer has received from Rohrer, its parents, employees, principals, or agents shall be deemed to be an assurance or guarantee that Customer or any third party can legally operate or use the Products and Customer is not relying on any such communication in choosing to purchase the Products. Customer further agrees to ensure that at all times, any Customer Personnel allowed to access or use any Product have been properly and adequately trained to use such Product by Customer. Customer will ensure that, when necessary, each Product will only be operated or utilized under proper supervision or at the required direction of a medical or health care practitioner in accordance with all applicable laws, rules and regulations. Customer accepts sole responsibility for ensuring that any operator of a Product is licensed and qualified to use and operate the Product safely and properly in a clinical setting and to perform medical procedures in accordance with all laws, rules, regulations and guidelines applicable to such Product in the jurisdiction in which the Product will be used. Further, no amounts paid or payable hereunder are intended, nor shall be construed to be, an inducement or payment for referral of or recommending referral of, patients by Customer to Rohrer, or by Rohrer to Customer, or for ordering, leasing or purchasing any item, product or service covered by any governmental or private health care payment program. If Customer files with the FDA an FDA Form 3500A or a similar form or medical device report with respect to any Product or any part of a Product, then Customer will simultaneously provide a copy to Rohrer. Customer shall be responsible for maintaining all permits, licenses, registrations, certifications and approvals necessary for its intended use of the Products. Without limiting the generality of the foregoing, it is the intent of Customer and Rohrer to comply with the Anti-Kickback Statute (42 U.S.C. §1320a-7b(b)) and the Discount Safe Harbor and Warranties Safe Harbor regulations set forth in 42 C.F.R. 1001.952(h) and (g), respectively. The prices listed on an Order Form may constitute a ‘discount or other reduction in price’ under the Anti-Kickback Statute. Customer acknowledges that, if applicable, Customer will be obligated to fully and accurately report all discounts or other price reductions, including warranty items, in the costs claimed or charges made under any Federal or State healthcare program and provide information upon request to third-party reimbursement programs.
   
8. Intellectual Property. Customer hereby acknowledges and agrees that the Products represent and include valuable intellectual property owned by or licensed to Rohrer, and that Rohrer and/or its licensors retain the entire right, title, and interest in and to the intellectual property (including without limitation all copyrights and improvements thereto) related to any item of hardware, software and related documentation which Rohrer provides to Customer, and Customer shall not itself, or grant others a right to: (a) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of any such software; (b) remove, obscure, or alter any copyright, trade secret, trademark, patent, or other proprietary rights notice affixed to or displayed on any such software or related documentation, or affixed to or printed on any of its factory packaging; (c) challenge any right, title, or interest of Rohrer in or to its intellectual property rights related to the Products; or (d) take any other action that may interfere with any of Rohrer’s rights in or to its intellectual property rights related to the Products, including Rohrer’s ownership or exercise thereof. Nothing in these Terms shall be construed as an assignment, grant, option, license or other transfer of any right, title or interest whatsoever in any intellectual property of Rohrer or its licensors to Customer or any third party. Customer is responsible for obtaining all requisite software licenses related to any Products supplied hereunder. Customer’s use of such third party software shall be governed by the terms and conditions of the applicable third party license agreements and Rohrer disclaims all liability thereunder. Customer acknowledges that its unauthorized use of any of Rohrer’s or its licensor’s intellectual property would cause immediate, material, and irreparable harm to Rohrer. In the event of any violations of this Section, in addition to any other remedies available to Rohrer, Rohrer may refuse to sell future Products to Customer or refuse to service any Product, without any liability to Customer. Customer agrees that all Rohrer-furnished information, manuals, and all other materials which are identified as “confidential” information or should reasonably be deemed confidential, contain Rohrer’s valuable proprietary information, and Customer shall hold such information in confidence and not use, reproduce or distribute it except to Customer’s employees (and agents who agree to this provision) who may use it strictly as part of their duties.
   
9. Miscellaneous. If any provision of these Terms, including any attachments, shall be held or made invalid by a court decision, statute or rule, or shall be otherwise rendered invalid, the remainder of these Terms shall not be affected thereby. No delay or failure on the part of Rohrer in exercising any right, privilege or remedy, shall operate as a waiver of such, or any other, right, privilege or remedy, and no waiver whatsoever shall be valid against Rohrer unless made in writing by the duly authorized representative of Rohrer. These Terms, together with the Order Form, all attachments (including, if applicable, the Warranty Terms), any financing or internal payment plan agreements between the parties related to the Products, and any effective Service Agreement effective between the parties, collectively contain the entire understanding and agreement of the parties as to the subject matter hereof. Rohrer’s performance under these Terms shall be excused for any delay or inability resulting directly or indirectly from economic downturn, supply chain disruptions, material shortages, cyberattacks, foreign or domestic embargo, product detention, seizure, severe weather, act of God, insurrection, war, terrorism, the passage or enactment of any law or order interfering with manufacture or delivery of products, government action, public health emergencies, riot, strike or other casualty or acts of nature or man that are beyond the control of Rohrer.These Terms will be construed under and governed by the laws of the State of New York, United States of America. Any disputes arising from this document will be resolved through friendly negotiations. If the dispute or controversy remains unresolved for a period longer than thirty (30) days the parties shall submit the dispute or controversy to be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and all such arbitration proceedings shall occur in New York County, NY. Judgment on the award rendered by one or three arbitrators (as determined by Rohrer) may be entered in any court having competent jurisdiction thereof. Nothing herein shall prevent Rohrer from seeking provisional, injunctive, or emergency relief prior to proceeding to arbitration. The arbitrator(s) will have no authority to award punitive damages, and their decision must be consistent with these Terms. Each party will pay its own expenses and attorney’s fees. The relationship between the parties is that of independent contractors. Nothing contained in these Terms, or the Order Form shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. Customer may not assign, transfer, delegate or subcontract any of its rights or obligations under these Terms or any Order Form without Rohrer’s prior written consent. Any purported assignment or delegation not in conformance with this clause is null and void. These Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

The following warranty terms (these “Warranty Terms”) set forth the warranties provided by Rohrer to Customer with respect to certain Warranted Devices (as defined below) and are subject, and in addition, to Rohrer’s General Terms and Conditions of Sale (the “Terms”) to which these Warranty Terms are attached and into which these Warranty Terms are fully incorporated by reference. Terms not defined herein shall have the same meanings as is given to them in the Terms.

I. SYSTEM WARRANTY TERMS.

a. Excluding accessories, consumables, or replacement parts, Rohrer represents and warrants thatall Rohrer’s laser and radio-frequency microneedling device systems including, without limitation, the following: Pixel8, PICOLAZER, SPECTRUM, PIX:E, Phoenix, Bodytone, and Ultralight (collectively, “Warranted Devices”), shall, at the time of delivery and for a period of one (1) year after such delivery, materially conform to the published manufacturer’s specifications in effect at the time of shipment (the “Manufacturer’s Warranty”).

b. Customer may purchase additional warranty services for the agreed upon time set forth in the Order Form to extend coverage for any Warranted Device after the expiration of the Manufacturer’s Warranty, subject to terms and conditions of the Terms and these Warranty Terms (the “Extended Warranty”). The Extended Warranty must be purchased and paid for at the time of the original purchase of the Warranted Device or, if authorized by Rohrer in writing, any time prior to the termination or expiration of the Manufacturer’s Warranty.

c. Customer acknowledges and agrees that Rohrer’s obligations to Customer with respect to any warranty provided herein or any warranty services or replacements provided pursuant to these Warranty Terms are subject to Customer’s obligation to ensure that the Warranted Devices are used, stored, transported, and handled at all times pursuant to all applicable Rohrer specifications, design and use parameters set forth in Rohrer’s manual, labels, instructions for use or reprocessing, and other similar guidelines. These Warranty Terms shall be deemed null and void if a Warranted Device is used, stored, transported, or handled other than in accordance with Rohrer specifications, design and use parameters set forth in Rohrer’s manual, labels, instructions for use or reprocessing, and other similar guidelines. As a condition to Rohrer’s obligation to provide the services described in these Warranty Terms, Rohrer reserves the right to perform an inspection of any Warranted Device prior to the provision of any services by Rohrer contemplated under these Warranty Terms. Rohrer shall not be obligated to provide any services or replacements described herein with respect to any Warranted Device, which, in its sole opinion, fails to conform to documented standards of configuration, performance, manner of use, installation, or negligent or unauthorized acts of Customer with respect to the Warranted Device. The Manufacturer’s Warranty and the Extended Warranty (if applicable) are each personal to Customer and are non-transferrable and applies only to Warranted Devices which are owned and operated in the United States. Rohrer shall further not be obligated to perform any services described herein if any person or entity, including Customer, other than Rohrer or a person designated by Rohrer, maintains, services, repairs, tampers with or attempts to maintain, service, repair or tamper with, the Warranted Device. In the event any of the foregoing occurs, Rohrer may, at its option, terminate these Warranty Terms immediately without any refund to Customer and without any ongoing liability of Rohrer to Customer hereunder.

d. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE TERMS OR THESE WARRANTY TERMS, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND ROHRER’S SOLE LIABILITY, FOR BREACH OF THE MANUFACTURER’S WARRANTY AND/OR THE EXTENDED WARRANTY, IF APPLICABLE, SHALL BE, IN ROHRER’S SOLE DISCRETION, PROMPT REPAIR OR REPLACEMENT OF THE DEFECTIVE WARRANTED DEVICE, PROVIDED CUSTOMER NOTIFIES ROHRER IN WRITING OF THE NONCONFORMITY OR DEFECT WITHIN FIVE (5) DAYS OF CUSTOMER’S DISCOVERY OF THE NONCONFORMITY OR DEFECT, AND ROHRER HAS DETERMINED, IN ITS SOLE DISCRETION, THAT SUCH NONCONFORMITY OR DEFECT WAS NOT A RESULT OF ANY ACTS OR OMISSIONS OF CUSTOMER, CUSTOMER PERSONNEL, OR ANY THIRD PARTY, OR ANY OTHER EVENTS THAT NEGATE THE MANUFACTURER’S WARRANTY AND/OR THE EXTENDED WARRANTY. THESE WARRANTY TERMS DO NOT APPLY TO ANY PRODUCTS MANUFACTURED OR SOLD BY ANY THIRD-PARTY. ANY DELAY IN NOTIFICATION EXCEEDING FIVE (5) DAYS FROM CUSTOMER’S DISCOVERY OF THE APPLICABLE NONCONFORMITY OR DEFECT WILL VOID COMPANY’S OBLIGATIONS UNDER THE WARRANTIES SET FORTH HEREIN.pany’s obligations under the WARRANTIES SET FORTH HEREIN.

II. REQUESTED SERVICE. Rohrer agrees to use commercially reasonable efforts to provide an initial written or telephonic response within 24 hours (except weekends and holidays) after Customer submits a report to Rohrer informing Rohrer of an issue with the Warranted Device in violation of the warranty set forth in Article I of these Warranty Terms. Rohrer shall investigate the issues, provide reasonable support and, if determined to be necessary in Rohrer’s sole discretion, use commercially reasonable efforts to send replacement parts or accessories to Customer’s facility within 72 hours. If it is determined that a service engineer needs to travel to the Customer’s facility, Rohrer will use commercially reasonable efforts to do so within 5-7 business days. All services under these Warranty Terms shall be performed on the Customer’s premises, except in those cases where Rohrer determines more efficacious results may be obtained by conducting services at an alternative location, during normal daytime business hours. Any service requested by Customer to be performed at an alternative location or outside of normal business hours will be billed at a per then-current hourly rate provided by Rohrer.

III. REPLACEMENT PARTS. Services provided by Rohrer pursuant to these Warranty Terms may include the replacement of all failed parts of the applicable covered Warranted Device including, without limitation, any included laser tubes, except those that (a) fail because of abuse, accident, catastrophe, disaster, acts of God, acts of war or terrorism and environmental problems, abnormal usage, or improper operation or maintenance of the Warranted Device by any individual not authorized by Rohrer, or (b) are otherwise excluded pursuant to these Warranty Terms. Defective parts may either be repaired or replaced with new or remanufactured parts at Rohrer’s discretion. Defective parts, for which replacements have been provided by Rohrer, shall, at Rohrer’s option, become the property of Rohrer. All retuned parts must have a Rohrer-issued RMA number, authorizing the return of those items, without which, such parts shall be returned or destroyed at Customer’s sole expense, but strictly in accordance with Rohrer’s instructions and all applicable laws in all instances. Customer shall contact Rohrer for, and receive, this authorization prior to returning any parts to Rohrer.

IV. BILLABLE REPAIRS. Notwithstanding anything in these Warranty Terms or the Terms, any repairs which, in Rohrer’s sole opinion, were necessitated because of abuse, accident, catastrophe, disaster, acts of God, acts of war or terrorism and environmental problems, abnormal usage, improper operation or maintenance of the Product(s) by the Customer or third party (“Billable Repairs”) are not eligible for coverage under these Warranty Terms. Should Customer request Rohrer to perform Billable Repairs, Customer will be responsible for paying any and all fees and expenses necessary in connection with such Billable Repairs and, should Rohrer choose to approve Customer’s request for Billable Repairs, Rohrer’s performance of such Billable Repairs will be conditioned upon Customer’s providing to Rohrer a means of payment satisfactory to Rohrer, to cover the cost of the repair, labor, travel and any parts required.

V. CUSTOMER RESPONSIBILITY. Customer shall provide, free of charge and with ready access, adequate working space that is safe for laser use, free of traffic, with adequate light, heat ventilation, electrical current and outlets and any other reasonable accommodation as may be requested by Rohrer for the use of the Rohrer service engineer. All laser accessories must be made available to ensure system alignment to final application conditions. Delays incurred at the Customer’s facility greater than 30 minutes will be charged to owner at the rate communicated to Customer by Rohrer or, if no such rate is provided, the prevailing labor rate. Customer alone is responsible for the supervision, management and control of Warranted Device use, including, without limitation, providing all controls and review of techniques and other measures for promptly detecting and minimizing the effects of any errors, failures or interruptions that may occur during use. Customer shall clean, maintain, store and use the Warranted Device consistent with the instructions provided in any and all documentation provided by Rohrer including any operating manuals, product labeling, or published supplements thereto.

VI. LIMITATION OF LIABILITY. Without limiting and in addition to any other rights, remedies, or privileges provided under these Warranty Terms or under the Terms, Rohrer shall have no responsibility or liability for any delays in the performance of these Warranty Terms, however caused and Customer shall hold any and all Rohrer Parties harmless from any damage or injury in any way related to any failure or neglect of the Customer, its employees, agents or licensees. Rohrer’s sole liability in connection with these Warranty Terms shall be the performance of the repair and maintenance services described in these Warranty Terms.

VII. TRANSFERABILITY. Customer’s rights and obligations under these Warranty Terms are not transferable and Rohrer shall not be required to render any services described hereunder except as expressly set forth herein. These Warranty Terms are for the sole benefit of Rohrer and Customer, and Customer acknowledges and agrees that Rohrer shall have no obligation to any subsequent owners should Customer sell or transfer ownership of any Warranted Device to any other party.

VIII. GENERAL. Rohrer shall provide Customer contact information for the authorized Rohrer representative to contact for service. Customer shall provide to Rohrer the names of representatives authorized by Customer to request, acknowledge and authorize payment for service. Rohrer and Customer shall notify each other in writing in advance of changes in authorizations. At any time following the expiration of the Manufacturer’s Warranty, Rohrer may elect to discontinue service under these Terms when the total value of service(s) performed pursuant to these Warranty Terms exceeds three times the Price set forth above. No refund will be made on cancellations.

IX. INCLUSIONS/EXCLUSIONS. For the avoidance of doubt, the following listed items or terms are not included in the services described in these Warranty Terms: preventative maintenance checks, any Billable Repairs, consumables, and disposables.