Terms of service

Click here to download the PDF >> AVACEN PURCHASE AGREEMENT - version 250515

1. ITEMS PURCHASED. AVACEN, Inc., dba AVACEN Medical (SELLER) with its principal address at 6451 El Camino Real, Suite C Carlsbad, CA 92011, CA 92011 agrees to sell, and BUYER with its address further defined online during order checkout or on ATTACHMENT “A”, agrees to buy, one or more AVACEN heat therapy devices or accessories defined online during order checkout or on ATTACHMENT “A” (the “GOODS”) in accordance with the terms and conditions of this Agreement.

2. PAYMENT. BUYER shall pay the amount selected on the AVACEN Medical web shopping cart or Attachment “A” (“PAYMENT”) plus shipping and applicable taxes, if any.

3. CREDIT CARD CHARGE DISPUTES. BUYER acknowledges that SELLER is accepting a credit card as payment for GOODS as a convenience to BUYER. Should the BUYER desire to not enter into this agreement, SELLER is willing to accept personal and business checks, wire transfers and cash as alternate forms of payments. BUYER also understands that a key asset of SELLER is its relationship with its Credit Card Processors such as MasterCard, Visa, American Express and Discover Card. Furthermore, BUYER realizes that the disruption of that relationship by BUYER filing a credit card dispute related to their Product purchase with the Credit Card Processor may cause irreparable damage to SELLER. Therefore, those BUYER’s who purchase GOODS using a credit card, agree that ARBITRATION, as defined below is the fair and equitable alternative to any dispute resolution.

4. DELIVERY. SELLER shall use best efforts to ship the GOODS within 5 business days, after BUYER’s payment clears, to such address as specified by BUYER.

5. DISCLAIMER.

EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHER, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR NON-INFRINGEMENT.

NOTWITHSTANDING ANYTHING ELSE IN THE PURCHASE AGREEMENT, SELLER WILL NOT BE LIABLE TO BUYER WITH RESPECT TO THE SUBJECT MATTER OF THE PURCHASE AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS IN THE AMOUNT BUYER PAID TO SELLER UNDER THIS AGREEMENT.

IN NO EVENT WILL SELLER BE LIABLE TO BUYER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS ARISING OUT OF, OR IN CONNECTION WITH, THE PURCHASE AGREEMENT, WHETHER OR NOT BUYER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

6. INSPECTION. The BUYER, upon receiving possession of the GOODS, shall have 3 days to inspect the GOODS to determine if the GOODS conform to the requirements of this Agreement. If the BUYER, in good faith, determines that all or a portion of the GOODS are non-conforming, the BUYER may return the GOODS to the SELLER. The BUYER must provide written notice to the SELLER of the reason for rejecting the GOODS. The SELLER will have 15 business days from the BUYER’s Notice to remedy such defects or refund BUYER all monies paid hereunder including the costs of return ground shipping to SELLER.

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30-DAY REFUND. Your product comes with a 30-day Money-Back Guarantee, minus a 15% restocking fee and actual shipping costs. You need to be the original purchaser and; (1) request a Return Merchandise Authorization (RMA) from AVACEN.com/Support-Central within 30 days of the AVACEN device delivery to you and ship the AVACEN device back within 5 days of receiving your RMA approval and; (2) return the AVACEN device in a “like new” condition, including manuals and re-packed in the same manner as received, in the original shipping container. An accepted Equipment Purchase Agreement (either online or written) is required prior to shipping to qualify for any refund. NOTICE: Special discount packages containing multiple devices do not qualify for 30-day return program (you should be familiar with the AVACEN device prior to ordering multiple devices). Access Our Return Policy.

7. INTELLECTUAL PROPERTY LICENSE.
a. AVACEN HOME AND R2 OR FUTURE DERIVATIVES (“CONSUMER PRODUCT”).

Subject to and conditioned on BUYER’s compliance with and acceptance of all other terms and conditions of this agreement, SELLER herby grants to BUYER a non-exclusive, non-sublicensable, revocable license, including a limited license to U.S. Patent Nos. 8,679,170, 9,066,781, 9,192,509, 9,687,385, and 10,537,464, as well as foreign equivalents to the foregoing, to use the CONSUMER PRODUCT solely for non-treatment purposes. For avoidance of doubt, the CONSUMER PRODUCT license EXCLUDES use of the CONSUMER PRODUCT for the treatment of any third party in exchange for fees or any form of compensation.

b. AVACEN PRO+ OR AVACEN R3 PRO+ OR FUTURE DERIVATIVES (“COMMERCIAL PRODUCT”).

Subject to and conditioned on BUYER’s compliance with and acceptance of all other terms and conditions of this agreement, SELLER herby grants to BUYER a non-exclusive, non-sublicensable license, including a limited license to U.S. Patent Nos. 8,679,170, 9,066,781, 9,192,509, 9,687,385, and 10,537,464, as well as foreign equivalents to the foregoing, to use the COMMERCIAL PRODUCT for the treatment of a third party in exchange for fees or any form of compensation. For avoidance of doubt, the COMMERCIAL PRODUCT license INCLUDES use of the COMMERCIAL PRODUCT for the treatment of any third party in exchange for fees or any form of compensation.

8. DEFAULT. Failure to make a required payment due hereunder by BUYER, or unlicensed use under Section 8 (a). shall constitute a material default under this Agreement and BUYER agrees to immediately return the GOODS to SELLER at BUYER’s expense. BUYER shall reimburse SELLER for all costs and expenses, including attorneys’ fees, incurred by SELLER regarding any controversies or disputes arising out of SELLER’s unlicensed use under Section 8 (a). Should BUYER use the CONSUMER PRODUCT in an unlicensed manner by charging fees or accepting any form compensation from third parties for any use, rent, or lease of the GOODS, SELLER shall be entitled to recover, among other damages, the difference in the cost between the PAYMENT under this Purchase Agreement and a reasonable payment for a commercial license grant for the AVACEN PRO+ or R3 PRO+ heat therapy device plus an annual interest rate of 18% or, if lower, the highest rate permitted under applicable law.

9. REMEDIES ON DEFAULT. In addition to any and all other rights available according to law, if either party defaults by failing to substantially perform any material provision, term or condition of this Agreement, the other party may elect to cancel this Agreement if the default is not cured within 15 business days after providing written notice to the defaulting party.

10. WARRANTIES. SELLER warrants GOODS will be free from defects in materials and workmanship under normal use for a period corresponding to the GOODS purchased from the date of its initial shipment to the BUYER. Any Extended Warranty if purchased from AVACEN, extends the terms of this Warranty. Repair or replacement of products (or parts thereof) under this Warranty does not extend the Warranty period. Use without the patented and FDA-cleared AVACEN Mitt will void the warranty.

The obligations of SELLER under this Warranty shall be limited to repair or replacement (at SELLER’s option) of any product (or part thereof) under Warranty that SELLER reasonably determines to be covered by this Warranty and to be defective in workmanship or materials. SELLER shall determine whether to repair or replace products and parts covered by this Warranty. All products or parts replaced shall become

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SELLER’s property. In the course of Warranty service, SELLER may, but shall not be required to, make engineering improvements to the warranted products or parts.

Prior to shipping BUYERS device for repair under this Warranty, BUYER MUST complete a Return Merchandise Authorization (RMA) request found at www.avacen.com/support. REPAIR RETURNS WILL NOT BE ACCEPTED WITHOUT AN RMA CLEARLY NOTED ON THE OUTSIDE OF THE RETURN PACKAGING.

Products shipped to SELLER by the BUYER under this Warranty shall be suitably packaged to protect the product (the original packaging meets the requirement). If the BUYER ships GOODS to SELLER in unsuitable packaging, any physical damage in the product not previously reported will be presumed to have occurred in transit and will be the responsibility of the BUYER. Risk of loss or damage during shipment under this Warranty shall be borne by the party shipping the product.

This Warranty shall be invalid if the warranted products (or parts thereof) have been subject to misuse, neglect, or accident; have been damaged by causes external to the warranted product; have been affixed to any nonstandard accessory attachment; have had the serial number removed or made illegible; or have been disassembled, modified, serviced, or reassembled by anyone other than SELLER, or for devices, have been used without AVACEN MITTS, unless authorized by SELLER.

THIS WARRANTY, TOGETHER WITH ANY OTHER EXPRESS WRITTEN WARRANTY THAT MAY BE ISSUED BY SELLER, IS THE SOLE AND EXCLUSIVE WARRANTY AS TO AVACEN PRODUCTS AND EXTENDS ONLY TO THE ORIGINAL BUYER AND IS EXPRESSLY IN LIEU OF ANY ORAL OR IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SELLER SHALL NOT BE LIABLE FOR ANY INJURY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL LOSS, DAMAGE, OR EXPENSE (INCLUDING WITHOUT LIMITATION LOST PROFITS) DIRECTLY OR INDIRECTLY ARISING FROM THE SALE OR USE OF ANY AVACEN PRODUCT.

DISCLAIMER OF WARRANTIES

AVACEN devices are used in extremely variable environments and physical conditions. The devices may fail to function for a variety of causes, including but not limited to the physical condition of the person or the failure of the device by breakage. In addition, despite the exercise of all due care in the design, component selection, manufacture and testing prior to sale, the devices can be damaged, before, during or after use by improper handling or other intervening acts. Consequentially, no warranty is made that failure or cessation of the function of the device will not occur or that physical complications will not follow the use of the device.

FORCE MAJEURE. If the performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party’s reasonable control, (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitations, acts of God, fire, explosion, vandalism, storm, or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or supplier failures.

12. LIABILITY AND INDEMNITY. Liability for injury, disability, or death of BUYER and other persons caused by operating, handling, or transporting the GOODS after Delivery to BUYER is the obligationof the BUYER, and the BUYER shall indemnify and hold the SELLER harmless from and against all such liability.

13. ARBITRATION. Any controversies or disputes arising out of or relating to this Agreement shallbe resolved by binding arbitration conducted by a professional arbitrator at San Diego, CA inaccordance with the generally accepted Commercial Arbitration rules.

14. NOTICES. Any notice of communication required or permitted under this Agreement shall be sufficiently given if delivered in person or by tracked delivery service to SELLER’s address above or to BUYER’s address as specified in BUYER’s online order, or to such other address as one party may have furnished to the other in writing. 220621