Warranty Information for ABM Products

1.  Parties.  This Standard Warranty, Terms and Conditions, and Limitations on Use (“Standard Warranty”) is between Advanced Brain Monitoring, Inc. (ABM) and purchaser (referred to as the "Customer," "You," or "Your") for the product covered by this Standard Warranty ("Product").  The term Product includes the software and/or firmware in machine-readable form which is pre-installed on the Product.  The software and/or firmware in machine-readable form which is pre-installed on the Product is separately referred to as the Software. By your use of the Product, You agree to this Standard Warranty.  If you do not agree, do not use the Product and return it to ABM for a refund.

2.  Product Coverage. This is a limited warranty.  ABM warranties the Product to be free from defects in workmanship and to be in a condition suitable for normal use, and in material compliance with all published product specifications, from date of shipment for the periods listed in the table above.   "Normal use" is defined as regular, ordinary, and routine use of the Product under normal operating conditions as intended and/or recommended by ABM.  The following conditions or events and any resulting damage or defect are explicitly excluded from the Standard Warranty:

    a. On-Site or in-house service;

    b. The service, maintenance, repair or replacement necessitated by any loss or damage resulting from any cause other than normal usage, including without limitation, to loss or damage resulting from misuse, abuse, use outside of the specifications, or improper installation or maintenance.  Non-normal Product failures explicitly excluded from warranty coverage include:

           · Detachment of the connector(s) inside the enclosure – damage typically occurs when the cable connector is improperly forced into place;

           · Shorted microcontroller – failure can occur under extremely dry climate conditions resulting in an electro-static discharge coupled with the user not inserting or removing a cable only when the Device is OFF;

           · Items attached to the enclosure (i.e., strips, headband, and sensors).

           · Use with disposables not supplied by ABM.

    c. Service made necessary by any external cause, including fire, theft, acts of God, alteration, non-normal patient use, problems arising from software or hardware not supplied by ABM, power failures or shortages, improper shipping, common carrier equipment and/or facilities;

    d. Service or repair by persons other than those trained or authorized by ABM to service the Product;

    e. Service or repair made necessary by use of or damage caused by third party products.

3.  Sleep Profiler Software License:  The Sleep Profiler device is intended to be used with the Sleep Profiler Software.  The license for use of the Sleep Profiler Software for a single night study for a single patient is included with the purchase of each set of disposable sensors. You agree to only use the device in combination with the Sleep Profiler Software with a license from ABM obtained through the purchase of a set of disposable sensors from ABM or an authorized distributor.  Please see the Privacy Disclosure and Terms and Conditions for the Sleep Profiler Software for additional terms, conditions and information that apply to the use of the Sleep Profiler Software.

The Sleep Profiler Software is owned by ABM and is protected by United States copyright laws and international treaty provisions. You may not copy the Software or the written materials accompanying the Software. You may not decompile, disassemble, or otherwise derive Source Code from the Sleep Profiler Software.  You may not reverse engineer the Sleep Profiler Software or attempt to determine its underlying algorithms.  You may not use the Processed Data derived from the Sleep Profiler Software to assist in Your development or validation of methods, procedures, software, or commercial or non-commercial technologies intended to characterize sleep architecture or sleep continuity without ABM’s express written permission. This License is effective until terminated. This License will terminate immediately without notice from ABM or judicial resolution if you fail to comply with any provision of this License. Upon such termination, you must destroy the Sleep Profiler Software and all accompanying written materials and all copies thereof.

4.  X-Series Stat Software License: The purchase of an X-Series EEG system entitles the Purchaser to a nonexclusive, two seat software license ("Software") from Advanced Brain Monitoring, Inc. subject to the following conditions:

The Purchaser may install the Software on two computers, make one copy in machine-readable form solely for backup purposes, provided that you reproduce all proprietary notices on the copy and physically transfer the Software from one computer to another provided that the Software is used only on two computers at a time. The Purchaser may not copy, distribute, rent, lease, sub-license, transfer, or use the Software except as allowed herein. The Purchaser may not alter, modify, decompile, translate, disassemble the Program, or use it to create a derivative work. Purchaser's right to use this Software automatically terminates upon failure to comply with any provision of this License or upon Purchaser’s destruction of all copies of the Program and documentation. This license is good for two years from the date of shipment. Purchasers in good standing will be offered a two-year license extension, including any improvements or upgrades to the Software at no charge, in perpetuation. This License is deemed made, accepted, and delivered in the State of California and shall be construed, interpreted, and governed by the laws of the State of California, without regard or effect given to its or any other jurisdiction's conflicts of law jurisprudence.

5.  How to Obtain Service.  You may obtain Service for the Product, or request additional information, by contacting ABM at the phone or email listed above.  

6.  Return of Product.  To return a Product to ABM under a warranty claim or under a refusal to agree to the terms herein, the Purchaser must first contact ABM’s Customer Support at the phone or email listed above to receive a Return Merchandise Authorization (RMA) number.  Purchaser must place the RMA number on the outside of the package containing the products being returned and ship the package to ABM’s facility at your expense.  The package should contain a short description of the defect and a contact number to discuss equipment concerns with the licensee.  Any returned Product received by ABM without a RMA number shall be sent back to the Purchaser.  If a claimed problem cannot be identified or reproduced in Service, You agree to pay shipping cost for the return of the Product to you.

7.  Eligibility.  ABM reserves the right to require an inspection of the Product at Your expense prior to the acceptance of this Standard Warranty to verify that the Product is in unaltered, operable condition and in good working order suitable for normal use.  Acceptance of this Standard Warranty is expressly conditioned upon prior payment by You.  You agree to notify ABM if Product is lost, stolen, or sold.

8.  Repair or Replacement:  ABM will provide all parts and labor necessary to service and repair the Product covered under Warranty.  In the event ABM is unable to repair a defective Product, it shall, at its option, replace any Product with one of equivalent value or functionality or refund the purchase price pro rata.  In the case of a pro rata refund, the amount of the refund will be the purchase price reduced by the percentage of the warranty period that has passed (measured in days).  For example, if 146 days of a two year (730 days) warranty has passed, the refund would be the purchase price reduced by twenty percent (146 days divided by 730 days).  The foregoing remedies shall be Purchaser’s sole and exclusive remedies under this warranty. 

9.  Payment for Non-Warranty Work:  In the event a repair is not covered by the Standard Warranty, you will be notified within five (5) business days upon receipt of the Product.  If you authorize ABM to perform any services excluded under this Standard Warranty, You agree to pay ABM its usual and customary fees for such work.

10. LIMITATION OF WARRANTIES.  ABM DOES NOT REPRESENT OR WARRANT THAT THE PRODUCT WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY PROVIDED IN THIS STANDARD WARANTY, PRODUCTS ARE PROVIDED "AS IS" WITHOUT WARRANTY.  ABM DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, THAT ARE NOT EXPRESSLY PROVIDED IN THIS STANDARD WARRANTY INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

11. LIMITATION OF LIABILITY.  IN NO EVENT SHALL ABM, ITS RESPECTIVE PARENT OR AFFILIATE COMPANIES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS, BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL THEORY FOR LOST PROFITS, LOST REVENUES, LOST BUSINESS OPPORTUNITIES AND INFORMATION, BUSINESS INTERRUPTION, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER ABM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  ABM'S CUMULATIVE LIABILITY FOR ALL LOSSES, CLAIMS, SUITS, CONTROVERSIES, BREACHES, OR DAMAGES FOR ANY CAUSE WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATED TO THIS STANDARD WARRANTY) AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY SHALL BE THE AMOUNT YOU ACTUALLY PAID FOR THE PRODUCT, AS EVIDENCED BY WRITTEN RECEIPTS OR OTHER WRITTEN EVIDENCE.  BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

12. GOVERNING LAW.  This Warranty shall be governed by and construed in accordance with the laws of the State of California (without regard to its choice of law provisions).  YOU IRREVOCABLY WAIVE ANY AND ALL RIGHTS YOU MAY HAVE TO A TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY CLAIM RELATING TO OR ARISING UNDER THIS STANDARD WARRANTY.

13. DISPUTE RESOLUTION.  Any dispute, controversy, or claim against ABM or its parent or affiliate companies arising out of or relating to this Standard Warranty, its interpretation, or the breach, termination or validity thereof, or any related purchase shall be resolved exclusively and finally by arbitration administered by the American Arbitration Association (AAA) under its rules (www.adr.org).  You may file for arbitration at any AAA location in the United States upon the payment of any applicable filing fee.  The arbitration will be conducted before a single arbitrator, and will be limited solely to the dispute or controversy between you and ABM.  The arbitration shall be held in any mutually agreed upon location in person, by telephone, or online.  Any decision rendered in such arbitration proceedings will be final and binding on each of the parties, and judgment may be entered thereon in a court of competent jurisdiction.  The arbitrator shall not award either party special, exemplary, consequential, punitive, incidental or indirect damages, or attorneys' fees and each party irrevocably waives any such right to recover such damages.  The parties will share the costs of the arbitration, (including the arbitrator's fees, if any) in the proportion that the final award bears to the amount of the initial claim.  No action, regardless of form, arising out of or in conjunction with the subject matter of this Standard Warranty may be brought by either party more than one (1) year after the cause of action arose.

14.   ENTIRE AGREEMENT.  This Standard Warranty constitutes the entire agreement between you and ABM pertaining to the subject matter hereof and supersedes in their entirety all written or oral agreements between the parties pertaining to the subject matter hereof.  This Standard Warranty is intended to be understood in conjunction with the Standard Warranty, Terms, Conditions, and Limitations on Use.

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