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Online Purchase Agreement

NovoPulse® MKX-1 Purchase Agreement and Limited Warranty (the “Agreement”)

  1. Agreement.  This Agreement is made and entered into as of the Effective Date by and between BioMagnetic Sciences, LLC (“BMS”) and Purchaser.  By purchasing the NovoPulse MKX-1, specifically identified by the Product Serial Number listed above (the “Product”), Purchaser agrees to be bound by this Agreement. BMS and Purchaser are each referred to herein as a “Party” and collectively, the “Parties”.
  2. Purchase Price.  The purchase price for the Product (the “Purchase Price”) as noted shall be payable by Purchaser to BMS on the Effective Date.
  3. Delivery and Acceptance of the Product.  Purchaser will inspect the Product promptly upon delivery and shall notify BMS of any damage to the Product within one (1) day after delivery.  If Purchaser does not provide notification to BMS in the manner specified by BMS when the Product is delivered, Purchaser shall be deemed to have accepted delivery of the Product in good condition. Purchaser shall use the Product only for its intended purpose and shall operate the Product in compliance with the user manual, guidelines, instructions for use and specifications or other written/verbal instructions provided by BMS to Purchaser (together, the “Product Use Guidelines”) and shall not use, operate, or store the Product improperly, carelessly, or in violation of this Agreement or any applicable law, rule, regulation or government order.
  4. Limited Warranty Period and Exclusions.  BMS warrants the Product against defects in materials and workmanship when used in accordance with Product Use Guidelines for a period of one (1) year from the Effective Date or 300 hours of use (the “Warranty Period”), whichever occurs first. The limited warranty set forth in this Section shall not apply in the following cases:
    • the Product is not stored, handled and used according to the Product Use Guidelines; and/or
    • the Product is damaged due to carelessness, negligence, or other improper use by any person, as determined by BMS in its sole discretion.
  5. Defects.  If a defect arises during the Warranty Period and is not excluded under Section 4 of this Agreement, BMS will, in BMS’s sole option, repair or replace the Product (the “Repaired/Replaced Product”). In the case of the Repaired/Replaced Product, BMS warrants the Repaired/Replaced Product in accordance with Section 4 hereto for the remaining Warranty Period as calculated from the Effective Date.
  6. No General Warranty, Limitation of Damages.
    • EXCEPT FOR THE LIMTED WARRANTY CONTAINED IN SECTION 4, BMS MAKES NO WARRANTY OF ANY KIND, NATURE OR DESCRIPTION, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCT.  BMS HEREBY DISCLAIMS ALL SUCH WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE (AS APPLICABLE).  THIS DISCLAIMER BY BMS IN NO WAY AFFECTS THE TERMS OF ANY MANUFACTURER, VENDOR, OR OTHER THIRD-PARTY WARRANTIES.
    • BMS SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY DAMAGES, DIRECT OR INDIRECT, SPECIAL, CONSEQUENTIAL, OR OTHERWISE, CAUSED BY OR RESULTING DIRECTLY OR INDIRECTLY FROM BMS’ FAILURE TO COMPLY WITH THE TERMS AND PROVISIONS OF THIS AGREEMENT, OR RESULTING FROM ANY DEFECT OR NONCONFORMITY OF THE PRODUCT OR ANY OTHER MATTER, FACT, EVENT OR OCCURRENCE RELATING TO THE OPERATION, PERFORMANCE OR CONDITION OF THE PRODUCT.
  7. Acknowledgment of Instructions & Understanding of BMS Information.  Purchaser acknowledges receiving instruction on the proper use and care of the Product and represents and warrants that Purchaser understands the proper use and care of the Product.  Purchaser agrees to follow the proper use and care instructions, including, but not limited to the Product Use Guidelines.
  8. Confidentiality of Purchaser Information.  Purchaser’s personal information will be kept confidential by BMS in accordance with state and federal law and regulations that apply to BMS.  Notwithstanding the foregoing, Purchaser acknowledges and agrees that BMS is not a “health care provider” or a “covered entity” under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and, as such, is not regulated by HIPAA in its relationship with Purchaser. Purchaser authorizes the use and disclosure of de-identified personal and health information by BMS for marketing and research purposes.
  9. Confidentiality.  At all times, the Parties shall keep the terms and conditions of this Agreement confidential, meaning that neither shall disclose to any other party, except as required by law, the terms or conditions of this Agreement.  The foregoing notwithstanding, each Party may disclose the terms and conditions of this Agreement to its employees and agents on a “need to know” basis.  This Section shall survive the expiration or termination of the Agreement.
  10. Medical Emergency.  Should a life-threatening medical emergency arise, Purchaser shall contact its local emergency services number for assistance.
  11. Liability; Indemnification.  Purchaser assumes all risk and liability arising from damage, possession, and use of the Product, including injuries or death to a person or damage to property.  Purchaser shall immediately notify BMS of each claim against Purchaser pertaining in any way to the Product.  Purchaser agrees to indemnify and hold BMS harmless from and against any and all claims, losses, liabilities or expenses, including reasonable attorneys’ fees, which arise from or are related to injury or death of any person, or loss of or damage to any real or personal property to the extent caused by the possession, storage or use of the Product by Purchaser.  The provisions of this Section 11 shall survive termination of this Agreement.
  12. Entire Agreement.  This Agreement constitutes the entire agreement between the Parties and supersedes all prior or contemporaneous agreements and understandings, oral or written, between the Parties as of the Effective Date with respect to the subject matter hereof.
  13. Termination.  This Agreement shall terminate by mutual agreement of the Parties.
  14. No Practice of Medicine or Health Care.  BMS is not a medical provider and its representatives are not physicians or any other type of licensed health care provider, which means that BMS is not permitted or qualified to evaluate or opine on any individual’s condition or circumstances or whether treatment or care involving the Product is appropriate for Purchaser.  BMS makes no representations or warranties to Purchaser regarding the effectiveness of the Product or whether some other care setting or modality is more appropriate for Purchaser.  As a result, it is solely up to Purchaser and Purchaser’s physician or other qualified health care provider to determine whether use of the Product is appropriate for Purchaser.  Purchaser and Purchaser’s treating physician or other health care practitioner, based on consultations or discussions, have determined that the Product may assist Purchaser in managing a health care related condition.  Nothing in this Agreement shall be construed to permit BMS to practice medicine, health care or any healing arts, to manage, own, operate or conduct a medical office or practice, to furnish medical services, physicians, non-physician practitioners or health care or healing arts advice, to advertise under or assume the title of physicians, non-physician practitioners or equivalent title, to promote or perform any unlawful advertisement or other unlawful act prohibited by state law, or to hold itself out as being entitled or able to perform any of the foregoing.  The rendition of all professional services, including, but not limited to, the prescription or administration of medicine and drugs, and whether the Product should be used in treating the Purchaser, shall be the sole responsibility of Purchaser’s physician or other licensed health care practitioner in the exercise of his or her own independent professional judgment within the scope of their license.  BMS shall not interfere in any manner or to any extent with the performance of such physician or practitioner’s medical or professional judgment.
  15. Assignment.  Purchaser may not assign, mortgage, encumber, or transfer any rights or obligations under this Agreement in whole or in part, nor grant a license or concession in connection therewith without the prior written consent of BMS.
  16. Severability.  If any provision of this Agreement is held to be invalid or illegal in any state it shall be severed here from for purposes of enforcement in that state but shall not invalidate any of the remaining provisions herein.
  17. Applicable Law; Venue.  Purchaser agrees that this Agreement is to be construed under the laws of the State of Minnesota, and that if legal action in any way related to this Agreement or the Product is brought, that Federal District Court of Minnesota (4th Division) or Hennepin County District Court (4th Judicial District) shall have the exclusive jurisdiction and be the exclusive legal venue for such action unless BMS, in its sole discretion, commences proceedings in a different jurisdiction or venue.
  18. No Third Party Rights.  The Parties agree that they do not intend to create any enforceable rights in any third parties under this Agreement and that there are no third-party beneficiaries to this Agreement.

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