Last modified: August 25th, 2021
Agreement between User and Lumenis
These Terms shall be deemed to be in addition and without prejudice to any other obligations you may have towards Lumenis under any agreement or applicable law.
This Website displays various products, and may contain materials, information, offers, campaigns or other content, pertaining to Lumenis, its devices, treatments and services and related markets and industries, including among other things, marketing materials, educational materials and service materials, posts, blogs, videos, webinars and brochures, as well as information regarding your purchase history, order status, use of award points or coupons etc. (collectively – “Content”). Parts of this Website and its Content may only be accessed by professionals who have subscribed to this Website ("Professional Users"). It your sole responsibility to assess the relevance or usefulness of any Content to your particular needs or purposes.
without providing any information or making any statement concerning Lumenis products or services other than those officially provided by Lumenis
No Professional Advice
This Website does not provide and you should not regard any Content as medical, medical practice, technical or other professional advice or recommendation to Users, whether as practitioners, patients or otherwise, even if such Content is presented as or has the appearance of an advice or opinion.
Patients must always relay on a personal qualified physician advice with respect to any medical or health issue and must not rely on any Content herein as a diagnosis, prognosis or recommendation for any treatment or of any person with respect to their medical or health issues.
Practitioners must always exercise their independent professional judgment and make their own independent examination of the suitability of the Products for their professional needs and for the patient's required treatment.
With respect to technical matters and trouble-shooting, Users must always rely on a qualified authorized Lumenis' technician and must use discretion in using any content for trouble shooting.
User Privacy Notice
Personal data provided to Lumenis by you and/or by your organization, as applicable, in connection with your registration to this Website or otherwise provided to or collected or generated by Lumenis in connection with your use of this Website, may be used by Lumenis in accordance with Lumenis’ Privacy Statement.
If you wish to share via the Website any third party personal information, you must obtain the prior consent of the relevant person.
Acceptable Use of the Website
When using the Website, you must refrain from –
- Breaching theses Terms or any other applicable rules and instructions that we may provide;
- Interfering with, burdening or disrupting the functionality of the Website;
- Breaching the security of the Website or identifying any security vulnerabilities in it;
- Circumventing or manipulating the operation, or functionality of the Website, or attempting to enable features or functionalities that are otherwise disabled, inaccessible or undocumented on the Website;
- Using or launching any automated system, including without limitation robots, crawlers and similar applications to collect and compile Content from the Website;
- Displaying the Website or any part thereof in an exposed or concealed frame, or linking to elements or portions of the Website;
- Displaying Content from the Website in any way; including by any software, feature, gadget or communication protocol which may alter the Content or its design;
- Downloading Content from the Website for any purpose, unless explicitly stated by Lumenis that such action is permitted;
- Accessing or using the Website in order to develop or create a similar or competitive product or service.
- Impersonating any person or entity, or making any false statement pertaining to your identity, employment, agency or affiliation with any person or entity;
- Collecting, harvesting, obtaining or processing personal information of or about other users of the Website;
- Engaging in any activity that constitutes a criminal offense or gives rise to civil liability; or
- Violating any applicable law.
In these Terms, "User" means each any person or entity who has access to and/or uses any part of this Website, and who has accepted these Terms, including without limitation Professional Users.
Access to and use of this Website is personal to the User and you may not permit any other person to access or use this Website through your account, if applicable, nor to share with any other person your user name, password or any other data facilitating access to your account. You are solely responsible for the activity that occurs in your User account. Lumenis will not be liable for any losses caused by any unauthorized use of your account.
You will not use this Website or any Content in any manner or for any purpose that is not business appropriate, unlawful, immoral, or adverse to or may circumvent Lumenis’ interests, products, services and brands.
Any failure by a User to follow these Terms, any abuse of the Website, any conduct detrimental to the interests of Lumenis, or any misrepresentation of any information furnished to Lumenis may result in the termination of User's account, without prejudice to any other available right or remedy.
WE MAY EMPLOY TECHNOLOGICAL MEASURES TO DETECT AND PREVENT FRAUDULENT OR ABUSIVE USE OF THE WEBSITE.
This Website is open to and intended solely for Users who are residents of the United States and are 18 years of age or older at the time of registration.
You may have received access to this Website as an employee of a business organization or otherwise on its behalf. In that case, you represent and warrant to Lumenis that you have the appropriate permission from and are duly authorized by your organization to use this Website and enter into transactions on its behalf, and to bind such organization by these Terms, and that these Terms shall be binding upon and enforceable against such organization. In such case, all references to “you” or "User" hereunder shall be deemed to be to you and/or to such organization, as the context may require.
For the avoidance of any doubt, this Website is not applicable to Lumenis employees or service providers.
Terms and Conditions of Sale
The provisions of this chapter shall apply in addition to and without limitation of any other provision of these Term:
- Purchase and Sale Agreement. When a Professional User submits an order for the purchase of Geneo Systems ("Geneo") or consumable or disposable components or accessories ("Consumables", and collectively with Geneo – "Products") through the Website ("Order"), and such order is confirmed by Seller in writing, then these Terms shall be a binding contract for the purchase and sale of the Products. In the event of any conflict or inconsistency between the provisions hereof and any other document or information displayed on the Website, the provisions hereof shall prevail.
These Terms and conditions of Sale apply to purchase and sale of Products through this Website only, and shall not apply to transactions made other than through this Website, including without limitation transactions subject to our Membership Program (which shall not be available under this Website, and which shall be governed by the applicable System Subscription Agreement executed in connection with such transactions).
- Seller. All transactions for the purchase and sale of Products, and the contract with respect thereto, are made between Lumenis Inc., of 2077 Gateway Place, Suite 300 San Jose, CA 95110 USA ("Seller") solely and exclusively, and the User, and Seller shall bear the sole liability as a seller with respect thereto. No other entity of the Lumenis group of companies, including Lumenis Ltd. and any of its other affiliates, shall be deemed to be a party to or bear any liability with respect to any such transactions and the Products, provided that such entities shall be deemed to be third party beneficiaries the provisions of these "Terms and Conditions of Sale" chapter, entitling them to the full rights and protections herein, including enforcement rights.
- Prices and Payment. All prices are subject to changes from time to time. Payment can be made by selected credit cards, full price in advance.
- Reward Points. Use and accumulation of reward points is subject to the terms and conditions of our Value-Added Benefits Program, and you subscribing to the same. Use of reward points may be limited, changed, suspended or terminated in Seller's sole discretion. Reward Points are only granted for purchase of Consumables through this Website, and may be used only against purchase of Consumables in accordance with the terms of the program.
- Taxes and Other Charges. You shall pay all taxes, fees, duty, levy, or charges, including sales taxes imposed by any governmental authority. Your obligations to pay all amounts under this Services Subscription Agreement shall not be subject to any set-off, counterclaim or abatement for any reason. Sales and use taxes are calculated based on User data, through a third party tool provided as-is. Seller does not guaranty the accuracy of such calculation.
- Delivery and Claims. For all purposes of this Agreement, title and risk of loss shall pass to you, and delivery shall be deemed completed, upon Seller's tender of the Product to a common carrier (“Delivery”). All shipments are fully insured for the benefit and at your expense. In the event of loss or damage in transit, you are entitled to replacement as provided herein. Seller will handle any necessary insurance claim. All delivery dates are approximate and shipments may be delayed due to demand or other commercially necessary reasons. Seller will deliver in one shipment when possible, but reserves the right to make delivery in installments, if necessary, at no additional cost to User.
- Software License. Seller grants to you a limited, non-transferable, royalty-free and non-sublicensable license to use the software embedded in the Product, if applicable, for its intended use (the “Software”). Any associated documentation provided hereunder to you is solely for your internal use in connection with the Product. You shall not make any copies of the Software.
- Inspection; Returns. Partial shipment by Seller is not a basis for a non-conformity claim. Within ten (10) days of receipt of the Product, you should inspect the Product, read the user manual and accompanying documentation and give written notice of any error or claim that the Product does not conform to the confirmed Order. Your sole remedy is set forth in Section 9 below. Purchase orders may not be cancelled once they are processed in our SAP. A Return Material Authorization (“RMA”) will be provided by Seller for any Product to be returned. In the event that Seller has approved a cancellation other than pursuant to Section 10, accepted returns are subject to the charges, terms and requirements notified in writing to you (which may include, without limitation, a restocking fee). No act by Seller (including receipt of returned Product) shall constitute Seller's acceptance of the returned Product unless we previously provided an RMA.
- Limited Warranty. Seller warrants that Geneo will be free from defects in materials and workmanship and will conform in all material respects to Geneo’s technical specifications. The foregoing limited warranty shall continue for a period of time which is twenty four (24) months from Delivery. During the warranty period, Seller shall repair or replace the Geneo at Seller’ sole option. Such repair or replacement shall be Seller’ sole obligation and User’s sole remedy hereunder, and shall be conditioned upon Seller receiving written notice of such claimed defect within ten (10) days after its discovery and, at Seller’ option, return of the Geneo to Seller, F.O.B. Seller’ facility. The foregoing limited warranty shall be void and of no effect if: (a) anyone other than Seller or a person acting on Seller’ express or written instructions, removes Geneo casing or makes or attempts to make any modifications, repairs, attachments or additions to the Geneo or installs or moves Geneo for which installation is required by Seller; (b) the Geneo is not maintained or operated in accordance with Seller’ instructions or non-Seller authorized / 3rd party parts Disposables (as determined by Seller from time to time) are used with the Geneo without Seller’ consent; (c) the Geneo has been subjected to misuse, abnormal conditions or negligent handling or operation; or (d) the Geneo is resold, leased or rented to or for the use by any person other than the original buyer without Seller’ consent. Used and refurbished Geneo does not have any warranties, and Products not manufactured by Seller or its affiliates shall only have such warranties (if any) as may be provided by the manufacturer.
There are no warranties for Consumables other than Out of Box Quality issues. If you ordered and/or received the wrong item or if the product has visually detectible defects upon arrival or was damaged during shipment, you can contact Seller for replacement of the items within 10 days from Delivery for an exchange in their original packaging (unopened in the case of wrong item) subject to Section 8 above.
- Liability Limitations and Disclaimers.
- No representation or warranty will be implied from any description of, or claims regarding, the Product or its effectiveness or ability to achieve any particular clinical results, whether written or oral, contained in specifications, samples, bulletins, marketing or promotional materials or similar statements displayed in the Website or otherwise made or furnished to you by any person. Use of the Products requires the exercise of sound medical judgment, and clinical results may vary based on operator skill and experience, patient suitability, patient response to treatment, and other factors beyond the control of Seller. Seller makes no representation or warranty of revenue or profits from use of the Products, and no such representation or warranty shall arise from projections, studies, illustrations, marketing or promotional material, or other statements made to you.
- THE ABOVE LIMITED WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES OF SELLER, EXPRESS OR IMPLIED, WRITTEN OR ORAL; SELLER DISCLAIMS AND EXCLUDES ANY IMPLIED WARRANTY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL SELLER OR ANY OF ITS AFFILIATES BE LIABLE FOR LOSS OF USE, LOSS OF PROFITS, PUNITIVE DAMAGES, ATTORNEY’S FEES AND EXPENSES, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, OR ANY OTHER DIRECT OR INDIRECT DAMAGES WHATSOEVER.
- Seller or its affiliates shall not be liable for any loss or damage whatsoever that may occur as a result of the misuse, mishandling, use other than in accordance with Seller’s instructions, negligent handling or operation, use by unauthorized or unqualified users, use of unauthorized parts, or any error or omission on the part of the User or its personnel. Without prejudice to the generality of the foregoing, in the event User uses any 3rd party parts or Consumables that are not certified or authorized in writing by Seller, then Seller and its affiliates are not liable for any loss or damage whatsoever that may occur after such items are used by User (including any damage to the Products as well as personal injury and property damage). The right to determine from time to time which 3rd party parts or Consumables are certified and authorized is hereby reserved for the Seller and its affiliates.
- Patents, Trademarks and Copyrights. Seller will, at its own expense, defend any suits which may be instituted against User for alleged infringement of any United States patent, trademark or copyright relating to the Products (without modification, alteration or improvement), expressly provided that: (a) such alleged infringement consists solely of the use of such Products, in User's business for any of the purposes for which the same were sold by Seller; (b) User has made all payments then due hereunder; (c) User gives Seller immediate notice in writing of any such suit and transmits to Seller immediately upon receipt all processes and papers served upon User and provides all needed information, assistance and authority to enable Seller’ defense of such suit; (d) User has not made any compromise or settlement without Seller’ prior written consent, and (e) such suit does not include claims for infringements of combination or process patents covering the use of the Product in combination with other goods or materials not furnished by Seller, claims for infringement of patents covering methods of use not recommended by Seller, or claims arising from any modifications to the Product by User or third parties. The foregoing states the entire liability of Seller for infringement and the User shall not have any claim, demand or cause of action against Seller and/or any of its affiliates other than pursuant to the foregoing.
- Financing and Assignment. These terms bind User, regardless of any financing arrangements, subrogations or assumptions. User may not assign its rights or delegate its obligations hereunder except with the prior written consent of Seller (which consent may be withheld in its sole discretion). Seller may assign these Terms in its unrestricted discretion.
- Certifications and Authorizations. User is solely responsible for the use and operation of the Products in accordance with all applicable laws and regulations, and medical and treatment guidelines, and for ensuring that each operator of the Products is adequately trained and qualified to use and operate the Products safely and properly and to perform medical procedures in accordance with such laws, regulations and guidelines. Seller makes no representations or warranties regarding federal, state or local laws or regulations, or medical or treatment guidelines that may apply to the use and operation of the Products. Use of the Products may involve certain risks of injury to patients. User is solely responsible for ensuring that patients are informed of these risks. Improper use of the Products may increase the risk of injury to patients. User are solely responsible for contacting state and local licensing agencies regarding requirements applicable to the use and operation of the Products. User is responsible for timely obtaining all necessary certifications, authorizations, permits, licenses, approvals and consents required in connection with the purchase and use of the Products in the State in which User is located and in the State in which the Product is used. Seller relies on User’s commitment to fulfill such obligations, including any special certifications that may be required by the FDA.
- Force Majeure. Timely performance of obligations hereunder is excused due to events that are unforeseeable and beyond the control of the party (“Acts of Force Majeure”). Acts of Force Majeure include, but are not limited to Acts of God or the public enemy; Acts or omissions of any government entity; Fire or other casualty for which a party is not responsible; quarantine or epidemic; strike or defensive lockout; disruption of sources or unusually severe weather conditions. The existence of any of the foregoing Acts of Force Majeure shall be determined on a day by day basis. No failure to declare an Act of Force Majeure shall constitute a waiver of either party’s right to subsequently declare or extend an Act of Force Majeure. In such event, Seller is released from fulfilling its obligations hereunder until such time the Act of Force Majeure no longer exists and shall not be liable for delay in performance. User expressly waives any objections in this regard but without prejudice to User’s right to reimbursement of any amount already paid to Seller for services not rendered or for Product that was not tendered to a common carrier for shipment to User.
This Website is a proprietary Lumenis platform, and includes parts that are not accessible to the public. The Content and the Products may include confidential information and trade secrets of Lumenis. You will keep in strict confidentiality, will not disclose to any other third party, and will not use other than other than as expressly permitted by Lumenis, information regarding this Website, and any Content or other information or material marked as confidential or which is otherwise of a confidential or proprietary nature.
This Website, the Products, the Content and all software, media, images, text, graphics, illustrations, names, marks, logos, photographs, audio, video, designs, tools, templates, forms, methods, works of authorship, inventions, techniques and know-how contained, used or described therein, and all intellectual property rights related thereto, including without limitation copyrights, patents, designs, tradenames, trademarks and trade secrets, are and shall be the exclusive property of Lumenis or its licensors.
The use of any Content on any other website or networked computer environment is prohibited.
All copyright and other proprietary notices contained in downloaded Content or in any Product must be retained.
If you choose to use, or post and share any Content intended for use/sharing, you will be solely responsible for such actions and for any content that may be personally added by you, such as personal text, including without limitation in relation to the compliance of such actions with the applicable laws and with the terms and conditions of the relevant sharing platform. You will not post any information or make any statement concerning Lumenis products or services other than in line with those officially provided by Lumenis. You may not share third party information without the consent of the relevant person.
To the extent that you upload or deliver to Lumenis any of your own content as may be applicable (“User Content”), you hereby grant to Lumenis a non-exclusive, irrevocable, transferable, sub-licensable, royalty free, worldwide license to copy, reproduce, alter and otherwise use the User Content for its own business purposes. You also waive any claim against Lumenis for such use by Lumenis, or for any copying, reproduction, alteration or use of your User Content by any other Lumenis customer.
By posting, uploading, inputting, providing or submitting User Content you warrant and represent that you own all of your User Content, or otherwise have the right to do so, and to otherwise use and grant all rights hereunder with respect to all of your User Content, including without limitation all intellectual property rights, without violating or infringing upon any third party rights and any applicable laws.
Access to this Website and the Content is provided as-is, with no warranty on the part of Lumenis, including with respect to the suitability, reliability, availability, operability, functionality, timeliness and accuracy of this Website, its features and/or the Content. Lumenis assumes no liability or responsibility for any errors or omissions in the Content.
In no event shall any part of the Content be deemed to constitute a representation or warranty on the part of Lumenis regarding the completeness, truthfulness or accuracy of the information contained therein.
Lumenis cannot guarantee the performance of any third party and shall not be liable for any act or default by a third party.
ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, ARE HEREBY DISCLAIMED.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LUMENIS AND/OR OTHER THIRD PARTIES ON ITS BEHALF BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR THE DELAY OR INABILITY TO USE THIS WEBSITE OR THE CONTECT, OR ANY INFORMATION OBTAINED THROUGH THIS WEBSITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF LUMENIS OR ANY OTHER THIRD PARTY ON ITS BEHALF HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE FOREGOING INCLUDES, WITHOUT LIMITATION, LIABILITY FOR DAMAGES TO, OR FOR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT.
You agree to indemnify, defend, and hold harmless Lumenis, its officers, directors, employees, agents, licensors and suppliers from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from any violation by you of these Terms or applicable law or otherwise from your negligent or improper act or omission or willful misconduct in connection with this Website or the Content or any Product.
No Other Relationship
Your use of the Website and the Products may be subject to United States federal, state and local, and international laws and regulations, including, but not limited to, laws regulating the privacy and security of health information, professional licensure, and the practice of medicine. You are solely responsible for the compliance of your use of this Website and the Products with all such applicable laws and regulations.
These Terms shall be governed by and construed according to the laws of the state of California, exclusive of conflicts of law provisions that would permit or require the application of the laws of a different jurisdiction. The 1980 U.N. convention on contracts for the international sale of goods hereunder shall not govern the rights and obligations of the parties. User agrees that any action for enforcement of these Terms or any other dispute arising hereunder shall be filed exclusively in courts located in Santa Clara County, California, and User hereby consents and waives any objection to the jurisdiction and venue of such courts. Any action hereunder for breach of warranty or contract must be commenced not later than one year from the date on which such action accrues or be forever barred.
Lumenis or User may require that any claim or dispute arising out of or related to These Terms, including but not limited to those based on or arising from any alleged injury related to use of the Product (collectively, the "Claims"), be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, conducted in the English language by a single arbitrator sitting in Santa Clara County, California. If any party institutes any judicial proceeding relating to any Claim, that action shall not be a waiver of the right of the other party to require submission of such Claim to arbitration so long as such other party initiates arbitration before an Answer or other response is required in such judicial proceeding. Upon initiation of arbitration, all judicial proceedings shall be stayed.
Your use of the Website may be subject to international, European Union, United States federal, state and local, and other national laws and regulations, including, but not limited to, laws regulating the privacy and security of health information, professional licensure, and the practice of medicine. You are solely responsible for the compliance of your use of this Website with all such applicable laws and regulations.