These Terms and Conditions (the “Terms”) to any sale or delivery by Haag-Streit USA, Inc. (“Haag-Streit”) of Haag-Streit and/or VRmagic products and services including but not limited to Lenstar®, Octopus®, and EyeSuite® products. All references to Haag-Streit in these terms and conditions shall be construed as a reference to VRmagic and vice versa except where otherwise specified. Any additional or conflicting term from those in these terms and conditions in an offer or acceptance by a customer (“Buyer”) is expressly objected to by Haag-Streit and shall not be deemed accepted by Haag-Streit or to be part of any contract with Haag-Streit unless Haag-Streit, in a duly executed writing, specifically accepts such additional or conflicting term. Haag-Streit may update these Terms at any time without notice to Buyer and such updated Terms shall be binding on Buyer. The Haag-Streit Privacy Policy can be found HERE (the “Privacy Policy”). The Privacy Policy governs Haag-Streit’s use of Buyer’s data and is incorporated herein by reference. The Privacy Policy may be updated from time to time without notice to Buyer.

Any direct order for a Haag-Streit or VRmagic product or service is subject to acceptance by Haag-Streit and may be cancelled by either party within three (3) days of the date on which the Quote/Sales Order (“Order”) is signed on behalf of Buyer. Buyer may only cancel a direct Order by notifying Haag-Streit in writing at the address shown on the Order during that three (3) day period. After that, any Order shall constitute a firm and binding agreement of Buyer to buy the products and software licenses in the quantities and at the prices listed in the Order. Prices listed in the Order are valid only for the period specified in the Order. If no period is specified, the prices are valid only for 30 days. Except as set forth herein, Haag-Streit reserves the right to make changes at any time without notice in prices, design, models or specifications, and to discontinue products. Haag-Streit will not accept an Order for a Lenstar® product unless the order is made by a physician. Haag-Streit reserves the right to require any physician ordering a product to produce proof of his or her validly held license to practice medicine if Haag-Streit determines, in its sole discretion, that such license must be held in order to use or own the product.

Buyer shall not assign the Order or any interest therein without the prior written consent of Haag-Streit. Any such actual or attempted assignment without Haag-Streit’s prior written consent shall be invalid and ineffective and shall entitle Haag-Streit to cancel the Order upon notice to Buyer.

To the extent Buyer does not issue a written purchase Order to Haag-Streit, Haag-Streit will collect a 10% deposit at the time of Order entry and will apply the deposit to the total purchase price. Payment is due at the time of installation unless otherwise specified in the Order. Late payments are subject to interest at a rate of 1.5% per month or the highest rate permitted by applicable law. Haag-Streit retains the right to maintain a security interest in the products listed in the Order until such time as Buyer has fully paid for the Order. Until Buyer has fully paid for the Order, Buyer will keep the products and software covered by the Order free from any lien or other encumbrance unless the Buyer has received the prior written consent of Haag-Streit to subject the Order to such lien or encumbrance. In the event of non-payment, Buyer agrees to pay all collection expenses, including court costs, legal and administrative expenses and attorneys’ and other fees paid or incurred by Haag-Streit.

Unless otherwise stated in the Order or Haag-Streit otherwise agrees in writing, all goods are delivered F.O.B. Mason, Ohio, unless otherwise agreed to by the parties in a written and executed Order. Risk of loss and title (excepting title to software) shall pass to Buyer upon Haag-Streit’s delivery to the Buyer. Unless otherwise specified, all orders are shipped, freight prepaid, via the most economical surface method, with shipping charges added to the invoice. Any shipping dates are estimated. Failure to deliver within the time estimated shall not be a breach of these Terms or an Order and in no event will Haag-Streit be responsible for, or Buyer be entitled to, any direct or indirect, incidental, exemplary, or consequential damages, including, but not limited to, claims for labor or loss of profits arising out of or relating to any delay in delivery.

If installation and/or training services are listed in the Order, these services will be scheduled at the mutual convenience of Buyer and Haag-Streit as soon as practicable after Buyer has received the products. Installation services are the services that in Haag-Streit’s experience are sufficient to install the Haag-Streit products and software in an environment complying with the requirements described in Section 8 (“Limited Warranty”).

Any software listed in the Order is licensed, not sold, to Buyer. The use of the term “Buyer” shall not be construed to grant ownership rights to any Buyer of Haag-Streit who has purchased a license to use Haag-Streit’s proprietary software. Any software listed in the Order proprietary to a third party supplier is provided to Buyer subject to the terms and conditions established by the third party supplier. Haag-Streit provides Limited Warranty support for its software as described in Section 8 of these terms and conditions.

a. General Software Terms. This Section 7(a) sets forth the terms that govern the use and licensing of Haag-Streit proprietary software. Additional software-specific terms are set forth in Section 7(b) (“EyeSuite Software License”) and Section 7(c) (“VRmagic Software License”). By using any Haag-Streit proprietary software, Buyer accepts these terms and conditions.

i. Non-Exclusive License. Haag-Streit grants Buyer a non-exclusive license to use any Haag-Streit software product listed in the Order on the number of individual workstations or view-stations identified in the “Quantity” column on the Order. If Buyer intends to install Haag-Streit software on a LAN or other system such that it may be accessed by multiple workstations or view-stations, Buyer must acquire licenses in a quantity equal to the number of workstations or view-stations connected to the LAN or other system.

ii. No Copies or Modifications. Buyer shall not make any copies of the software, other than back-up or archival copies. Buyer shall not modify, alter, adapt, merge, decompile, disassemble or reverse engineer the software.

iii. No Transfer of License. Buyer may not transfer the license of Haag-Streit software to a third party, unless Buyer receives the prior written consent of Haag-Streit. In no event is Buyer permitted to grant any sublicense to use Haag-Streit software to a third party or otherwise make Haag-Streit software or the use of Haag-Streit software available to any other person without the written consent of Haag-Streit.

iv. Perpetual Licenses. Licenses to use Haag-Streit software are perpetual, except that Haag-Streit reserves the right to terminate any license if Buyer breaches the license terms described in this License Agreement.

v. Buyer is Government Entity. If the Buyer is an agency of the United States Government, notice is hereby given that all Haag-Streit software is a commercial product, not developed at Government expense, provided with RESTRICTED RIGHTS and use, duplication and disclosure by the Government are limited as set forth under DFARS 252.227-7013 or FAR 52.227-19, or any successor provisions, as applicable.

vi. HAAG-STREIT HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THIRD-PARTY SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. HAAG-STREIT SHALL NOT BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, CONSEQUENTIAL, PUNITIVE OR OTHERWISE, RESULTING FROM BUYER’S USE OF OR INABILITY TO USE THE THIRD-PARTY SOFTWARE, OR ANY DEFECT THEREIN.

vii. Limited Warranty. Haag-Streit provides the Limited Warranty for Haag-Streit software as described in Section 8, which may include issuance of Software updates at no additional charge; otherwise, Haag-Streit assumes no obligation to provide any updates to its software. During or after the warranty period, Haag-Streit may issue optional software upgrades that contain new or enhanced functionality, and additional fees may apply if Buyer elects to install such upgrades.

b. EyeSuite® Software License. In addition to the terms set forth in Section 7(a), the terms set forth in this Section 7(b) specifically govern the licensing of the EyeSuite® proprietary software (“EyeSuite® Software”) accompanying Buyer’s purchase from Haag-Streit or its authorized dealer of a new, unused Lenstar® or Octopus® product (“Product”).

i. EyeSuite® Software License. The EyeSuite® Software is licensed, not sold, to Buyer. Any other software proprietary to a third party supplier included with a Lenstar® or Octopus® product (the “Product”) is not licensed under this Agreement, is not included within the capitalized term “EyeSuite® Software” and is provided to Buyer subject to the terms and conditions established by the third party supplier, as further set forth in Section 7(b)(iv)-(v) below. The Limited Warranty in Section 8 to these Terms applies to the Product.

ii. Computer, Product, and EyeSuite® Software. EyeSuite® Software is required on a computer physically attached to the Product (the “Control Computer”) in order to utilize the Product. The EyeSuite® Software is also capable of being installed on compatible personal computers (provided by Buyer) other than the Control Computer, for the purpose of viewing and analyzing data collected by the Control Computer (each such additional computer being referred to as a "view station"). The Control Computer is provided with pre-installed EyeSuite® Software by Haag-Streit and is installed together with the Product. Haag-Streit grants to Buyer a non-exclusive, non-transferable license to use the EyeSuite® Software on the Control Computer and on as many view stations as desired (solely for its internal use in connection with Product-generated data), provided that the number of initial view station installations is reported at time of installation. Buyer shall restrict use of the Product and the EyeSuite® Software to its employed or on-staff, properly trained medical personnel. No subsequent Control Computer or view station installations of EyeSuite® Software are permitted without obtaining additional licensing from Haag-Streit (fees may apply). Buyer shall not make any copies of the EyeSuite® Software except for authorized view station installations and a reasonable number of back-up or archival copies, and the copyright and other proprietary notices included in the Software shall be included in all copies. If after purchase, Buyer decides to use the EyeSuite® Software at any additional view station, please contact Haag-Streit at (888) 849-8923 for additional licensing.

iii. Third-Party Software. Haag-Streit may install software applications owned by third parties ("Third-Party Software") along with the EyeSuite® Software, or any other licensed Haag-Streit software, on the computer system that the Buyer has designated. In such a case, Third-Party Software is licensed to Buyer by the applicable manufacturer or distributor and not by Haag-Streit. Upon request, Haag-Streit will provide to Buyer copies of applicable license agreements for Third-Party Software, or the Internet addresses from which they can be obtained. Buyer authorizes Haag-Streit to accept the applicable third-party license agreements on Buyer’s behalf by clicking "Accept" or other appropriate means at the time of installing the Third-Party Software on Buyer’s computer, and Buyer agrees to comply with all third-party license terms. Haag-Streit does not provide configuration, training, software updates or any other services for Third-Party Software beyond the initial setup for connectivity to Eyesuite®, if required.

c. VRmagic Software License. In addition to the terms set forth in Section 7(a), the terms set forth in this Section 7(c) specifically govern the licensing of all proprietary software originally distributed by VRmagic, Inc. (“VRmagic Software”) that may accompany Buyer’s purchase from Haag-Streit or its authorized dealer.

i. Limitations on Use. Buyer may only install and use VRmagic Software on or with VRmagic products. Buyer may not uninstall any VRmagic Software that is pre-installed on a VRmagic product. Use of the VRmagic Software is limited to the site where the VRmagic product is located with which the VRmagic Software is used. Buyer may not license, market, distribute, sell, rent, lease, lend, redistribute, transfer, disclose, reproduce, copy or sublicense the VRmagic Software or any portion thereof. Buyer may not copy the VRmagic Software except to make archival or backup copies, provided that the backup copy must include all copyright or other proprietary notices contained on the original. Buyer may not copy the related explanatory written materials.

ii. Restrictions on Transfer and Removing Product Identification. Buyer may not transfer or assign this license or any other rights to, or make available or accessible, the VRmagic Software and related explanatory written materials to another person or legal entity and any such transfer or assignment shall be void. Buyer may not remove any product identification, trademark, copyright, patent or other notices or markings contained in or on the Software, or publish or disclose the results of any benchmarking or comparison of the features, functionalities or performance of the Software compared to any other software or system. Buyer shall not allow any other person, including any employee of Buyer’s company, to take any of the actions prohibited in this Section 7(c)(iii). Upon request by Haag-Streit, Buyer shall certify to Haag-Streit that the use of the Software is and has been in material compliance with this Agreement.

The following Limited Warranty applies to all Haag-Streit products and software, including the software set forth in Sections 7(b) and 7(c) of these terms and conditions.

a. Repairs and Returns. Haag-Streit warrants to the Buyer that the products and Haag-Streit proprietary software listed in the Order will be free from material defects in materials and workmanship for a twelve month period starting on the date of Buyer’s receipt of the products and/or software (the “Limited Warranty Period”). During the Limited Warranty Period as defined by the Order, but in no case longer than one (1) calendar year from the date of purchase (excluding each day that the product is out of Buyer’s possession due to replacement or repair), Haag-Streit will, at its discretion, either at an authorized Service Center or on site, repair or replace the necessary components, parts or subassemblies necessary to correct material defects in materials and workmanship in the products and/or software or, if for any reason Haag-Streit determines that it is unable to correct any such defect, accept the return of the products and/or software covered by this Order and refund the purchase price paid by Buyer.

b. Covered Entities. This Limited Warranty extends only to the original Buyer of the product. This warranty is not transferable to any subsequent purchaser, consumer, user, or other person. References to “you,” “your,” and “Buyer” in this Limited Warranty refer only to persons covered under this warranty. ALL OTHER PROVISIONS OF THIS DOCUMENT, INCLUDING THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS, APPLY TO BUYER AND ANY OTHER PERSON WHO MAY ASSERT CLAIMS AGAINST HAAG-STREIT OR ITS AFFILIATES OR ITS SUPPLIERS.

c. Exceptions to Limited Warranty. This Limited Warranty does not apply to damages caused by the following: accidents, acts of God, misuse, alterations, repairs or modifications not performed by an authorized Haag-Streit representative, the failure to maintain a suitable installation environment (including electrical power, humidity control, temperature control, space, and computer platform and capacity), relocation, the use of supplies, materials or third party software not meeting Haag-Streit specifications or the use of the products and/or Haag-Streit proprietary software for purposes other than those for which they were specifically designed. In addition, this Limited Warranty does not apply to any software product that is proprietary to a third party supplier. (The limited warranty with respect to any such software product, if any, is the limited warranty provided by the third party provider of that product.) This Limited Warranty does not cover consumable parts and supplies (i.e., paper, light bulbs, printer ribbons, ink cartridges, storage media, fuses, etc.) used with the products and software. This Limited Warranty does not constitute a warranty that procedures performed using the products and software covered by the Order will be subject to reimbursement by any insurance carrier. Buyer is responsible for the protection and integrity of all patient data and Haag-Streit will not be liable for any loss or compromise of patient data.

d. Other Warranties. OTHER THAN AS EXPRESSLY SET FORTH IN THE ABOVE LIMITED WARRANTY, HAAG-STREIT DOES NOT EXTEND ANY EXPRESS OR WRITTEN WARRANTIES, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DISCLAIMS ALL OTHER EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF NON-INFRINGEMENT, WITH RESPECT TO ALL PERSONS. ALL IMPLIED OR EXPRESS WARRANTIES THAT CANNOT BE DISCLAIMED HEREIN UNDER APPLICABLE LAW, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE AND THE WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, SHALL BE LIMITED IN DURATION TO THE ONE-YEAR TERM OF THE ABOVE LIMITED WARRANTY PERIOD.

 e. Exclusivity of Limited Warranty. THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF, AND HAAG-STREIT HEREBY DISCLAIMS AND THERE SHALL BE EXCLUDED FROM THE RELATIONSHIP BETWEEN BUYER AND HAAG-STREIT, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Any other warranty not expressly set forth herein that Haag-Streit is found by a competent court not to have disclaimed but to have extended to Buyer, whether express or implied, shall be limited to, shall be subject to and shall be qualified by the knowledge of Haag-Streit. The knowledge of Haag-Streit is limited to the actual knowledge of Haag-Streit’s officers at the time such warranty is first given. This Limited Warranty, and any other warranty not expressly set forth herein that Haag-Streit is found by a competent court not to have disclaimed, expressly excludes, and does not cover, any defects or damages resulting from any of the conditions described in Section 8(c), “Exceptions to Limited Warranty.”

 f. Reimbursement by Government or Insurance. Haag-Streit makes no representation or warranty that procedures performed using the Product or Software will be subject to reimbursement by any government program or insurance carrier.

 g. Limited Warranty Service. If Buyer needs Limited Warranty service, Haag-Streit will assist Buyer with the necessary arrangements to have the equipment shipped to an authorized service center. Shipping will be paid for by Haag-Streit. For Limited Warranty service or technical support, call Haag-Streit at (888) 848-8923, 8:00 am to 5:00 EST.

No goods or equipment may be returned to Haag-Streit without prior written authorization by Haag-Streit. Upon receipt of a “Return Goods Authorization” form from Haag-Streit, returns must be shipped and prepaid to Haag-Streit at the address in the Order. Haag-Streit reserves the right to require a minimum 20% restocking fee for returns within 30 days of installation date. Merchandise held longer than thirty (30) days from the installation date, special order items and discontinued products may not be returned.

Buyer’s remedies for the failure of any products and software listed in the Order are exclusively set forth under Section 8 of these terms and conditions. Such remedies shall not be deemed to have failed of their essential purpose so long as Haag-Streit is willing and able to repair or replace the products and/or software or refund the purchase price paid by Buyer on a reasonably prompt basis.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S AGGREGATE AND CUMULATIVE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATING TO THESE TERMS AND ANY ORDER FORM HEREUNDER, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT, STATUTE, OR OTHERWISE, WILL NOT EXCEED THE TOTAL AMOUNT PAID TO HAAG-STREIT UNDER THE APPLICABLE ORDER. NOTWITHSTANDING ANYTHING TO THE CONTRARY, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES SUFFERED BY SUCH PARTY RESULTING FROM OR ARISING OUT OF THIS AGREEMENT.

To the extent that Haag-Streit has expressly agreed in writing to indemnify Buyer and/or hold Buyer harmless from a third party claim related to any product including, without limitation, any third party claim for infringement of a patent or other intellectual property right, the terms in this Section 11 will apply.

 a. Buyer’s Obligations in Seeking Indemnification. Buyer will not be entitled to be indemnified, held harmless, or defended, unless Buyer: (i) gives Haag-Streit prompt written notice, such notice to be delivered no later than thirty (30) days after Buyer has received notice thereof, of any action, proceeding, or threatened action or proceeding, and the ground(s) asserted therefor; (ii) gives Haag-Streit, in writing, the sole control of the defense of such action or proceeding and the authority to settle and compromise such action or proceeding (unless Buyer is the U.S. government or any agency or instrumentality thereof), provided that Haag-Streit will not settle or compromise any claim, action, or proceeding unless Haag-Streit either obtains (1) Buyer’s written consent which consent Buyer shall not unreasonably withhold or delay; or (2) with respect to a claim for monetary damages only, a complete release of liability for Buyer and no admission of wrongdoing by Buyer; and (iii) cooperate with Haag-Streit at Haag-Streit’s expense in its defense of such a claim, action, or proceeding.

 b. Haag-Streit’s Rights when Buyer Seeks Indemnification. If Buyer is enjoined from using any Haag-Streit product or any Haag-Streit product becomes, or in the reasonable opinion of Haag-Streit is likely to become, the subject of a claim involving infringement of a third party’s intellectual property rights, Haag-Streit will have the right to (i) seek to procure, at no cost to Buyer, the right to continue to use such product, or (ii) replace or modify, at Haag-Streit’s expense, such product without a material loss of functionality, or (iii) require Buyer to return the product, in which case Haag-Streit will refund the purchase price paid by Buyer therefor as depreciated from the date of delivery of the product to Buyer on a straight-line thirty-six (36) month basis and Buyer will promptly cease all uses of the product and return such product to Haag-Streit, at Haag-Streit’s expense, upon Haag-Streit’s demand, provided, however, that Haag-Streit will remain liable to Buyer in respect of its express indemnification, hold harmless and/or defense obligations concerning a third party claim involving such infringement to the extent that Buyer continues to have liability with respect to such third party claim after Buyer has complied with the foregoing provisions.

c. Exceptions to Indemnification. Buyer will not be entitled to be indemnified, held harmless or defended if the third party claim results from (i) a material modification or alteration, misapplication, misuse, unauthorized repair or improper installation of any Haag-Streit product done or made by persons other than Haag-Streit without Haag-Streit’s written approval; (ii) Buyer’s negligence, willful misconduct or bad faith or that of Buyer’s employees or contractors or affiliates; (iii) any of the conditions set forth under Section 7(c); (iv) with respect to a third party claim of infringement of intellectual property rights, continuation of the allegedly infringing activity by Buyer after Haag-Streit has notified Buyer to cease such activity or has provided Buyer with a substitute or modification(s) that would have avoided the alleged infringement.

The Order embodies the entire agreement and understanding between the parties with respect to the products, software and services covered by the Order, and supersedes all prior agreements and understandings relating to the subject matter hereof, whether oral or written.

These terms and conditions will not be amended, modified or rescinded except by written agreement signed by an authorized representative of each party expressly referring hereto. If any provision of these terms and conditions shall be held by a court of competent jurisdiction to be contrary to any law, the remaining provisions shall remain in full force and effect with such contrary or unenforceable provision limited or excluded to the minimum extent required under applicable law. The product provided to Buyer is in its complete and finished form. No future changes, additions or enhancements can be provided without a written agreement signed by an authorized representative of Haag-Streit.

These terms and conditions and the Order shall be governed by, and construed in accordance with, the laws of the State of Ohio, without application of the conflict of law principles thereof. Any claim or dispute arising from the Order or these terms and conditions may only be brought in a court with jurisdiction over claims arising in Warren County, Ohio, and Buyer expressly waives any objection to such venue.

BUYER VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER BASED ON CONTRACT, TORT OR OTHERWISE, BETWEEN OR AMONG BUYER AND HAAG-STREIT, ARISING OUT OF OR IN ANY WAY RELATED TO ORDER, OR ANY PRODUCTS, SERVICES OR SOFTWARE LISTED IN THE ORDER.

Any failure by Haag-Streit to exercise any of its rights shall not constitute or be deemed a waiver or forfeiture of such rights or any other rights.

Any cause of action arising from the arrangement between Haag-Streit and Buyer or any breach of Haag-Streit’s obligations to Buyer must be commenced within one (1) year after the event giving rise to the cause of action has occurred or it shall be deemed irrevocably waived and time-barred.

The parties shall not be liable for the failure or delay in performing any obligation under this Agreement, except that this provision shall not apply to payment obligations pursuant to an Order, if and to the extent such failure or delay is due to: (a) acts of God; (b) unusually severe weather condition, fire or explosion; (c) war, terrorism, invasion, riot or other civil unrest; (d) the issuance, adoption or enactment of any governmental laws, orders, restrictions, actions, embargoes or blockades; or (e) any other event which is beyond the reasonable control of the affected Party and could not have been avoided by using commercially reasonable efforts (each such event, a “Force Majeure”); provided, however, that the party affected shall promptly notify the other Party of the Force Majeure condition and shall provide the other party, from time to time, with its best estimate of the duration of such Force Majeure event.