EXHIBIT A

 

TERMS AND CONDITIONS OF SALE

In these Terms and Conditions of Sale, in addition to terms defined within the body herein, these terms have the following definitions:

IHT” shall mean Invisible Health Technologies, LLC;

Customer” shall mean the addressee named as the party purchasing goods or services from IHT.

Equipment” shall mean the equipment and associated supplies and materials purchased by Customer from IHT as Authorized Reseller of such items.

  1. ACCEPTANCE OF TERMS AND CONDITIONS: Customer’s placing of an order with IHT for the delivery of Equipment to Customer shall constitute Customer’s acceptance of these IHT’s Terms and Conditions of Sale. No modifications, amendments or waiver of these Terms and Conditions of Sale shall be binding upon IHT unless IHT expressly agrees to such modifications, amendments or waivers in writing signed by a duly authorized representative of IHT. Under no circumstances will any terms and conditions contrary to and terms and conditions contained herein that are embodied in an acknowledgment, purchase order or other document provided by Customer affect or apply to this sale of Equipment.
  2. DELIVERY TERMS; PRICES: The price for all Equipment shall be the IHT prices as in effect on the date of delivery. Unless specified otherwise in the Purchase Order, all delivery terms shall be FOB Ft. Lauderdale and any specific product delivery conditions stated on the order confirmation by IHT, shall apply to all deliveries made hereunder. Customer shall engage its freight forwarder to timely collect all purchased Equipment. Customer shall pay any additional expenses or costs not covered under the relevant purchase and delivery terms in the Purchase Order such as barging, wharfage, port dues, duties, taxes fees, travel and subsistence costs where relevant and any other costs including without limitation, those imposed by governmental authorities.
    Customer acknowledges that there are inherent risks and perils associated with international and domestic shipping and transportation, and in the event that any Equipment are damaged in transit, IHT shall have no liability for any such damage.  Subject to the appropriate Incoterms in the Purchase Order, Customer’s recourse shall either be to submit a claim to the relevant insurance carrier or to request a warranty replacement from IHT subject to Section 8 below.
  1. PAYMENT:
  • Unless otherwise provided, all sales may be paid by cash, credit card, wire transfer, or ACH in advance by receipt of fifty percent (50%) upon signing the associated Purchase Order and receipt of the other fifty percent (50%) prior to shipping to Customer’s location. All letters of credit procured by Customer in favor of IHT shall be confirmed and irrevocable letters of credit in a form and substance acceptable to IHT and issued only by a bank acceptable to IHT. Such payment shall be made upon execution of the Purchase Order and IHT shall not be obligated to start performance or delivery prior to receiving payment.
  • If payment in advance is not required under the Purchase Order, Customer shall make payment in full on or before the due date, without discount, set-off, or deduction, by wire transfer, ACH, or credit card. Notwithstanding any disputes regarding quality, quantity or other matter, Customer must initially pay the full amount due, and any disputes shall be resolved between Customer and IHT after such payment has been made.
  • Without prejudice to any other rights IHT may have pursuant to any laws or hereunder, Customer agrees to pay, in addition to other charges contained herein, reasonable legal fees for the collection of any non-payment or underpayment as well as any other charges incurred by IHT in such collection including, but not limited to, the court costs, collection and debt recovery agent fees and the cost of bonds and fees associated with enforcing a lien or other available right.
  • If Customer elects to pay by credit card, an additional amount of three percent (3%) of the order amount will be charged to Customer and such payments may be subject to additional terms and conditions imposed by our payment processor.
  1. TAXES AND ASSESSMENTS: Customer will pay IHT the amount of all sales, use, value added, excise, gross receipts, import, and all other taxes and fees, however designated, other than taxes on income, paid or incurred by IHT directly or indirectly with respect to the Equipment insofar as the same are not expressly included in the price quoted. Further, Customer shall defend, hold harmless and indemnify IHT for any damages or costs IHT might incur due to Customer’s failure to comply with this requirement.
  1. AGENTS AND BROKERS: If the purchase of the Equipment is contracted for by an agent, then such agent, as well as the principal, shall be bound by and be fully liable for the obligations of Customer in the transaction, whether such principal be disclosed or undisclosed. Customer represents and warrants that there are no agents, brokers or facilitators associated with this transaction that will require payment from IHT, and that IHT shall have no responsibility for paying any such agents, brokers or facilitators.
  2. CANCELLATION FEE: If subsequent to ordering the Equipment, Customer cancels the order for any reason whatsoever, IHT, without prejudice to any other rights it may have, shall be entitled to charge as compensation, being a genuine pre-estimate of loss and not a penalty, a cancellation fee equal to the greater of ten percent (10%) of the total order amount or US$1,000.00.
  1. RISK OF LOSS; TITLE: Title and risk of loss to Equipment shall transfer in accordance with the lncoterms® 2020 shipping term identified on the Purchase Order. If Title and risk of loss pass to Customer prior to delivery at Customer’s facility under such Incoterms, Customer shall maintain at Customer’s expense adequate insurance against all risks for the Equipment at all times including but not limited to any period of time prior to the delivery of the Equipment.
  1. WARRANTY AND LIMITATIONS:

8.1  Limited Warranty. The Equipment is sold with the following limited warranty:

  • IHT warrants that it has the right and interest in the Equipment to make the sales and licenses contemplated herein. As IHT is an Authorized Reseller of all Equipment purchased by Customer hereunder which is manufactured by OmniSense Systems USA, Inc. (“OmniSense”), such Equipment comes with the OmniSense manufacturer’s warranty under which the Equipment is warranted against defects in software, design, materials and/or workmanship for one (1) year from purchase by Customer or eighteen (18) months from the initial receipt by OmniSense of such Equipment into the USA, whichever is less (the “Warranty Period”), and the Equipment is fit and safe for use consistent with their intended use and related documentation. This warranty is contingent upon proper use of each item of Equipment in the application for which it is intended and is voided if such Equipment is modified without OmniSense’s approval or is subjected to unusual physical or electrical stress. In addition, this warranty does not apply if any of the conditions in Section 8.2 are met.
  • In the event of any malfunction, you may contact IHT’s customer service hotline at (800) 406-5374 or email  service@invisiblehealthtechnologies.com with a description of the malfunction and steps to reproduce it.  IHT will attempt to troubleshoot the issue remotely with Customer’s onsite staff.  If any goods require replacement, IHT shall provide Customer with a prepaid shipping label to return the Equipment to IHT’s service center, where it will be repaired or replaced at the service center’s discretion. Repairs or replacements may use refurbished parts or devices.
  • After repair or replacement, the Equipment will be covered by this warranty for the remainder of the original Warranty Period.
  • IHT’S RESPONSIBILITY IS LIMITED TO REPAIR OR REPLACEMENT OF THE GOODS FOLLOWING THE RETURN THEREOF BY CUSTOMER TO IHT, AND IS CUSTOMER’S EXCLUSIVE REMEDY UNDER THIS WARRANTY.
  • The term “State” includes any state of the United States, Washington, D.C., or any other United States territory or possession.
  • Unless Customer purchases an Extended Warranty under a separate Master Services Agreement with IHT, no warranty of any kind will apply if any Equipment malfunctions after the Warranty Period expires. If no warranty applies, IHT may charge Customer a fee for its efforts to diagnose and service any problems and any replacements will be charged and billed at the standard market rates applicable from IHT at the time of replacement.

8.2 Warranty Exclusions.

  • This warranty does not apply if the Equipment is:
    1. Damaged by use with a third-party component or product that is incompatible with the Equipment
    2. Modified or tampered with (e.g., any attempt is made to defeat or circumvent any technical limitations or security mechanisms) or its serial number is altered or removed;
    3. Damaged by any external cause (including, e.g., by being dropped, exposed to liquid, used with inadequate ventilation, etc., or failure to follow instructions in the instruction manual);
    4. Scratched, dented, etc., or shows other cosmetic damage;
    5. Damage caused by Customer or any non-authorized third-party; or
    6. Used with any operating software other than the operating software preinstalled in the Equipment (or any updates or modifications of that operating software provided by IHT), or if Customer breaches the terms of the license agreement for the operating software herein.
  • The Equipment requires an annual calibration at OmniSense’s Laboratory which is only covered if Customer purchases the Extended Warranty from IHT under a separate Master Services Agreement, and therefore any inaccuracies resulting from lack of calibration beyond the one (1) year warranty period shall not be considered to be “defects” and therefore all required calibrations and other maintenance of the Equipment shall be a Customer responsibility beyond the one (1) year warranty period unless Extended Warranty services are purchased from IHT.
  • IHT does not guarantee that Customer’s use of the Equipment will be uninterrupted, timely, secure, or error-free, or that data loss will not occur.

8.3  Warranty Waiver. The warranty under Section 8.1 herein is IHT’s sole warranty with respect to the Equipment. ALL OTHER WARRANTIES AND CONDITIONS EITHER EXPRESSED OR IMPLIED, WHETHER ARISING UNDER LAW OR EQUITY OR CUSTOM OR TRADE, INCLUDING THE WARRANTIES OF QUALITY, MERCHANTABILITY, FITNESS FDR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, ARE, TO THE FULLEST EXTENT PERMITTED BY LAW, EXPRESSLY EXCLUDED AND DISCLAIMED. THE MAXIMUM LIABILITY OF IHT IN RESPECT OF A CLAIM RELATING TO ANY PARTICULAR GOODS OR SERVICES SUPPLIED BY IHT IS LIMITED TO THE PRICE PAID BY THE CUSTOMER FOR SUCH PARTICULAR GOODS OR SERVICES. IHT SHALL NOT BE LIABLE TO CUSTOMER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR FOR BREACH OF STATUTORY DUTY, OR OTHERWISE, OR (A) ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND WHATSOEVER HOWEVER CAUSED; (B) ANY LOSS OF BUSINESS, REVENUE, PROFIT, GOODWILL OR SAVING (IN EACH CASE WHETHER DIRECT OR INDIRECT).

8.4  Equipment Use Limitations. The Equipment is not marketed or intended to be used as medical devices or for any application that is hazardous such that the correct functioning and output of the devices are used to make life saving or other critical decisions relating to people or animals. In addition, the Equipment cannot be used to determine, and does not determine, the core body temperature of people or animals. Core body temperature can only be determined using an approved measurement device approved by the government for such purposes.

  1. OPERATING SOFTWARE:

(a)        Right to Use. Customer acknowledges and agrees that the Equipment is delivered with operating software pre-installed that is necessary for the operation of the Equipment.  Customer acknowledges and agrees that Customer does not gain any ownership right in or to the operating software by purchasing the Equipment and such operating software may be used by Customer under the terms and conditions hereunder.  Subject to the use restrictions below and the other terms and conditions of this Agreement, Customer is granted a limited, revocable, non-exclusive, non-transferrable, right to use the operating software solely in conjunction with operating the Equipment.

(b)        Use Restrictions. Customer agrees not to copy, extract, modify, reverse engineer, decompile or disassemble the Equipment or operating software, in each case  to the extent that such restriction is not prohibited by law in the jurisdiction where the Equipment is being operated.  Except for the limited rights granted in Section 9(a), IHT and its suppliers and licensors hereby retain all right, title and interest in and to all worldwide intellectual property rights in the operating software. Any usage of the operating software or the Equipment in violation of this Section 9 shall be a material breach of these Terms and Conditions of Sale which shall immediately terminate the rights granted under Section 9(a).  Customer acknowledges and agrees that use of the operating software without the rights granted above or in violation of the restrictions above infringes IHT’s and its suppliers’ and licensors’ copyright rights in the operating software.

(c)       Software Updates & Upgrades. IHT shall have no obligation to provide any updates or upgrades to the software provided with the Equipment, but in the event that it does, Customer must provide all reasonable assistance and must perform all reasonable actions to install all such updates or upgrades on all items of Equipment, and if Customer does not then the remainder of the duration any applicable warranty shall be immediately terminated and voided. All such updates or upgrades and any related documentation shall be deemed part of the operating software, and shall be subject to the terms and conditions of these Terms and Conditions of Sale.

  1. CONTINGENCIES: IHT shall not be in breach of its obligations in the event that performance is prevented, delayed, or made substantially more expensive as a result of any cause beyond its reasonable control, whether or not foreseeable. Nothing in this provision shall be deemed to excuse Customer from its obligation to make payments for Equipment received.
  2. CLAIMS:
  • Upon delivery, Customer will inspect the Equipment for quality and quantity. The acceptance of the Equipment by Customer shall be unqualified unless at the time of delivery Customer gives written notice to IHT on the face of the delivery documents detailing the nature of the claim or gives written notice to IHT within five (5) business days after delivery.
  • Any cause of action must be brought under the terms and conditions of Section 14 herein within one (1) year from the effective date of delivery of the Equipment or, to the extent allowed by law, the claim shall be deemed waived and absolutely barred. Unless defective, no merchandise will be accepted for return and credit, unless approved by an authorized IHT representative at IHT’s sole discretion.
  • Nothing in these Terms and Conditions of Sale shall exclude or limit the liability of IHT where such exclusion or limitation would be prohibited by applicable law, including as related to the limitation for personal injury or death arising from wilful misconduct, fraud, or fraudulent misrepresentation with respect to the Equipment.
  • IHT and the Customer hereby acknowledge and agree that the allocation of risk reflected in these Terms and Conditions of Sale is reasonable and is reflected in the prices for Equipment to be paid by the Customer. As a genuine pre-estimation of costs and as compensation to IHT for costs, a restocking fee will be charged in accordance with IHT’s standard price list for all returns of Equipment unless (i) such return is related to a warranty claim during the Warranty Period, or (ii) otherwise waived subject to preauthorization by an IHT representative.
  1. INDEMNITY: Customer shall defend. indemnify and hold IHT harmless with respect to any and all third party liability, loss, claims, expenses or damage IHT may suffer or incur by reason of or in any way connected with the purchase, receipt, use, storage, handling or transportation of the Equipment by Customer. Neither the sale nor any claim against IHT arising directly or indirectly out of or in connection with the Equipment shall be assignable by Customer or by operation of law without the prior written consent of IHT.
  2. WAIVER OF IMMUNITY: In the event the Customer is a State or Government owned or controlled entity, which status would otherwise entitle Customer to assert or allege the defence of sovereign immunity in any claim against it, said Customer expressly waives and agrees not to assert such a defence in any action or proceeding which may be commenced or asserted against Customer or its assets in connection with the purchase of Equipment.
  3. ARBITRATION AND GOVERNING LAW: All disputes arising from these Terms and Conditions of Sale shall be finally settled in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association (“AAA”) by one arbitrator appointed in accordance with such rules, and shall be administered by AAA at its office location in New York, New York. The arbitration shall be conducted in English. The parties shall keep confidential all materials used, or created for use in, or resulting from the arbitration. The decision of the arbitrator shall be final and judgment may be entered thereon by any court of competent jurisdiction. These Terms and Conditions of Sale shall be governed by the laws of the State of New York without giving effect to conflicts of laws principals. The venue for any equitable actions and for entry of any arbitral award shall be in any Federal or state court in New York County, New York. Applicability of the United Nations Convention on the International Sale of Goods (CISG, 1980) is explicitly excluded.
  4. CONFIDENTIALITY: Customer shall treat as confidential property and not disclose to others, including governmental agencies or other authorities, during or subsequent to the term of these Terms and Conditions of Sale, any information concerning IHT’s business or operations including without limitation any technical information, experience or data regarding services, plans, programs, plants, processes, products, costs, equipment operations or customers which may come within the knowledge of Customer, its officers or its employees in the performance of these Terms and Conditions of Sale, without in each instance securing the prior written consent of IHT.
  5. RELATIONSHIP OF THE PARTIES. The parties expressly understand and agree that each party is an independent contractor in the performance of each and every part of their agreement with one another and is solely responsible for all of its employees and agents, its labor costs and expenses arising in connection therewith and for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of that party’s activities, or those of its employees or agents, in the performance of this Agreement. Customer does not have the authority, right or ability to bind or commit the IHT in any way and will not attempt to do so or imply that it may do so.  Each party is in no manner associated with or otherwise connected with the actual performance on the part of the other party, nor with the other party’s employment of other persons or incurring of other expenses. Neither party shall have any right to exercise any control whatsoever over the activities or operations of the other.
  6. ENTIRE AGREEMENT: This document constitutes the entire agreement between IHT and Customer and is intended to be the final expression of their agreement in connection with the Equipment, notwithstanding any representation, course of dealing, conduct, usage of the trade or statement to the contrary heretofore made, but without limitation on the liability of either party for fraudulent misrepresentation. If any provision of these Terms and Conditions of Sale should be found unenforceable, such provision shall be severed from the remaining provisions, and such remaining provisions shall remain in full force and effect.
  7. DATA USE: Customer consents to its personal contact details (including the personal contact details of any of its employees, staff or officers ) being kept in IHT’s databases and used by IHT and its affiliated entities for purposes of IHT per forming its obligations hereunder and keeping Customer informed of additional IHT products and services. Customer shall not provide any personal information of its employees (other than Customer’s personal contact details), contractors, clients or other people to IHT.
  8. FCC COMPLIANCE:The Equipment complies with Part 15 of the FCC Rules. Operation is subject to the following two conditions: (1) this device may not cause harmful interference, and (2) this device must accept any interference received, including interference that may cause undesired operation
  9. PRODUCT SAFETY:Cable and Cord Safety.  Arrange all cords so that people and pets are not likely to trip over or accidentally pull on them as they move around or walk through the area.  Do not allow children to play with cords.  Take care not to pull on the cords when the Equipment are connected.  To avoid damaging the charging cords or being injured by them, take the following precautions:
    • Protect the cords from being walked on;
    • Protect cords from being pinched or sharply bent, particularly where they connect to the Equipment;
    • Do not jerk, knot, sharply bend, or otherwise abuse the cords;
    • Do not expose the cords to sources of heat;
    • Do not modify the wall adapter;
    • Keep children and pets away from the cords.  Do not allow them to bite or chew on them;
    • If a cord becomes damaged in any way, stop using it immediately; and
    • Unplug the Equipment during lighting storms or when unused for long periods of time.

    Failure to follow these precautions could result in property damage, serious personal injury, or even death caused by (1) tripping on the cords, (2) damage to the cords that results in smoke or a fire, or (3) damage to the cord that results in electrical shocks.

    Water and Moisture.  The Equipment are not waterproof.  If water or foreign objects get inside your headphones, it could cause fire or electric shock, which could result in property damage or serious personal injury.  If the Equipment get wet, water and/or other liquids may penetrate the outer shell and damage the electrical connections. If the Equipment have gotten wet or appear damaged in any way, stop use immediately.  In particular, to reduce the risk of fire or shock as a result of the Equipment being exposed to water or moisture, follow the following precautions:

    • Do not use the Equipment near water.
    • Do not expose the Equipment to rain or moisture.
    • Do not attempt to dry the Equipment with a hair dryer or a microwave oven.
    • Do not use around a sink or other water—be careful that the Equipment do not fall into a sink or container filled with water.
    • Do not use in the rain or snow or in humid locations.
    • Failure to follow these precautions could result in property damage or serious personal injury.