Avive Solutions, Inc.
Terms and Conditions of Sale

GENERAL TERMS AND CONDITIONS OF SALE

1. Order and Acceptance. All sales made by Avive to Customer for Avive’s products and services (the “Products”) are subject to the terms and conditions of this General Terms and Conditions of Sale (this “Agreement”). Avive will not be bound by any terms of any other document or terms that are additional or inconsistent with this Agreement, other than those explicitly referenced in this Agreement or those otherwise agreed upon in writing by the Parties. All orders for Products may be made by one of the following methods: a) written order form which may be received via a phone order, email or Avive’s website, b) work orders pursuant to Avive’s Master Consulting Services Agreement or other Avive agreements, or c) other methods created by Avive from time to time (each an “Order”). Customers may purchase Products from Avive, and in such case this Agreement will apply to their purchase and use of the Products. Customers may authorize users to use, maintain, or hold responsibility for Avive Products, and may provide access to Products via account logins, access to data, access to reports, or other means (all such users considered a “Customer”). Additionally, Customers may elect to lease Products pursuant to Avive's LifeSaver Plan. If a Customer has selected the LifeSaver Plan, then in addition to this Agreement, the terms and conditions set forth in Exhibit A will apply to Customer's lease and use of the Products. If there is a conflict between the applicable terms and conditions of this Agreement and an Order, the terms of the Order will control.

2. Delivery, Shipping, Risk of Loss. Avive will use reasonable efforts to deliver Products at the times specified in Avive’s acceptance of Customer’s Order. All Products delivered under this Agreement will be suitably packed for shipment in Avive’s standard containers, marked for shipment to Customer’s address specified in Customer’s Order, and shipped FOB Avive’s facility or Avive’s fulfillment center (“Shipping Point”), at which point title and risk of loss to Product shall pass to Customer. All freight, insurance, and other shipping expenses, if any, associated with the transfer of Product ordered by Customer from the Shipping Point will be specified on the Order. Avive may implement a shipping charge for any of the Products.

3. Use of Product. Customer shall use all Product in accordance with all applicable laws, all instructions and inserts included with the Products, and all manufacturer guidelines, including the User Manuals found here.

1. 1. Customer agrees to comply with all U.S. or other applicable laws regarding the transmission of any information obtained from the Products, not to use the Products for illegal purposes or in a manner inconsistent with this Agreement, and not to interfere with or disrupt the networks connected to the Products.
   2. Avive is not responsible for any liabilities arising from Customer’s use, non-use, or failure to comply with any applicable laws and regulations relating to the access and use of Products. Customer is solely responsible for ensuring that all Products purchased from Avive are maintained in accordance with the accompanying manufacturer guidelines and instructions and are used, registered, or maintained in accordance with applicable federal, state, and local laws, including state prescription laws, state laws on public access to defibrillation devices, training and registration requirements, and good Samaritan laws. Customer is solely responsible for properly maintaining any Products Customer purchases from Avive, including but not limited to ensuring Customer’s Avive Connect AED has non-expired electrode pads and a charged battery. Customers with an active REALConnect subscription may monitor Avive Connect AED readiness via REALConnect. This monitoring may be in lieu of periodic visual manual checks of the Avive Connect AED device status, unless Avive Connect AED devices are not synced with REALConnect, and unless otherwise required by applicable federal, state, and local regulations. Nothing herein shall imply that Avive will be responsible or liable for Customer’s failure to properly manage and maintain its Products in accordance with the manufacturer instructions for use.
   3. Customer's use of Avive’s REALConnect platform or Avive SaaS Products and services will be governed by the Master Subscription Agreement, which can be found here.
   4. Customer shall document any and all patient or user complaints regarding the Products and shall promptly forward to Avive all such complaints and related documentation.
   5. Please note that some features of the Products and Avive's REALConnect platform or Avive SaaS Products and services are not available in all areas where Customers are located. Additionally, some features may require an opt-in or opt-out on a location-by-location, organization-by-organization, or AED-Product-by-AED-Product basis. Refunds will not be issued if certain features are not currently available in certain areas.

4. Purchase Price. Prices for the Product shall be Avive’s standard list price or as defined on Order (“Price”). Avive will invoice Customer based on the price and payment method established by the applicable Order for the Price of Product.

5. Payment Terms. Payment Terms. Customer will pay for Products per the payment terms outlined on the Order. Customer will make payments in US dollars by credit card, check, or wire transfer to an account designated by Avive. Any invoiced amount not paid when due shall be subject to interest equal to the lesser of 1.5% per month or the maximum rate permitted by law. If Customer pays any fees with a credit card, then Avive may seek pre-authorization of Customer’s credit card account prior to purchase to verify that the credit card is valid and has the necessary funds or credit available to cover the purchase. Purchases shall be shipped F.O.B. Destination, freight prepaid and charged back and made in accordance with such further terms (including returned goods policies) as set forth in Avive’s product price list in effect on the date of shipment. Order placement, confirmation, and invoices for Products shall be sent by use of electronic data interchange, except where Customer does not have such capability. Avive may suspend sales of the Products to Customer or terminate this Agreement with respect to Customer in the event that Customer delays payment or fails to pay any sum owed by Customer to Avive hereunder.

6. Limited Warranty; Limited Remedy. Avive provides a limited warranty as set forth in this Section 6 to the original Customer who purchased the Products or associated accessories directly from Avive or an authorized Avive distributor, only if such Products have been: (i) used in accordance with the Product's labeling and instructions for use, and (ii) properly maintained. Avive's limited warranty is that the Products will be substantially free from defects in material and workmanship under their normal and intended use and service for the warranty period specified herein (the "Avive Warranty"). The Avive Warranty only extends to the original Customer who is able to provide proof of purchase from Avive or an authorized Avive distributor, and may not be assigned or transferred unless with prior consent of Avive.

Avive AED Products, including the Avive Connect AED and Avive AED, are subject to the Avive Warranty for five (5) years after the date on which the device is shipped to Customer. This warranty for the Avive Connect AED will be extended to eight (8) years from the date on which the device is shipped to Customer if, within twelve (12) months of the date on which the device is shipped to Customer, (i) the Avive Connect AED is initialized, and (ii) the Avive Connect AED is registered with Avive’s REALConnect platform within an organization with at least one active user. Disposable defibrillation pads and Avive pad cartridges provided to Customer are subject to the Avive Warranty until the expiration date listed on the package. The Avive Training Cartridge is subject to the Avive Warranty for thirty (30) days from the date on which the Cartridge is shipped to Customer. All other accessories are subject to the Avive Warranty for ninety (90) days from the date on which the accessory is shipped to Customer, or the expiration date, whichever is later.

To obtain the Avive Warranty service for the product, Customer shall contact and notify Avive customer support or the authorized Avive distributor from which the Product was purchased and ship the defective Product to Avive. Avive will have the option to repair, replace, or provide a credit for the Product, at Avive’s sole discretion after receiving and inspecting the Product in accordance with Avive’s published specifications. The repaired or replaced Product will be subject to the Avive Warranty for either (a) ninety (90) days or (b) the remainder of the original warranty period, whichever is longer. At Avive’s sole discretion,  Avive may replace the Product with an upgraded or otherwise modified version of the Product. If Avive’s inspection of the returned Product detects no defects in material or workmanship, regular service charges will apply, including shipping and transportation fees, as well as inspection and replacement fees. If a replacement or loaned Product is provided to Customer pending such inspection, Customer shall have thirty (30) days from the date on which the replacement or loaned Product is shipped to return the defective Product or regular service charges will apply.

Exclusions from Coverage. Any warranty or liability is excluded where the warranty claim, in Avive’s reasonable opinion, arises out of (1) accidents, theft, misuse, tampering, abuse, fire, flood, war, acts of God, or neglect; (2) use or storage of the Product outside of normal operating conditions, specifications, environment, or in a manner not authorized by Avive; (3) lack of routine care or maintenance as indicated in any Avive operating or maintenance instructions; (4) failure to use or take any proper precautions under the circumstances; (5) user modification of Product, unauthorized repair, unauthorized modification, unauthorized alterations; (6) computer viruses and other changes to the operating system or environment which adversely affect the applicable Product; (7) defects, problems, or failures created by third party products (except those comprising parts or components of Avive’s Products) or their interface with Avive’s Products; (8) Force Majeure (as further described below); and (9) latent defects discovered after the expiration of the applicable warranty period. Use of any accessories or components with Avive’s Products other than Avive’s authorized accessories and components shall void Avive’s warranty and liability, and Avive makes no warranty with respect to the compatibility of Avive’s Products with third-party products, parts, software, supplies, interfaces, or accessories.

Immediate Void of Warranty. The Avive Warranty is immediately voided if (1) any Product or its associated accessories are serviced, repaired, or tampered with by any entity or persons not authorized by Avive; (2) any Products or their associated accessories are purchased from anyone other than Avive or an authorized Avive distributor; (3) any Product is not used in accordance with its operating or maintenance instructions; (4) any Product is not used in accordance with the FDA approved indication or Instructions for Use (4) any specified Product maintenance is not performed; or (5) any Product is used in conjunction with third party, incompatible, or unauthorized products, parts or accessories.

TO THE EXTENT PERMITTED BY LAW, THE FOREGOING LIMITED WARRANTY IS IN LIEU OF AND SPECIFICALLY EXCLUDES AND REPLACES ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

NO PERSON (INCLUDING ANY AGENT, DEALER, OR REPRESENTATIVE OF AVIVE) IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY CONCERING AVIVE PRODUCTS, EXCEPT TO REFER TO THIS LIMITED WARRANTY.

TO THE EXTENT PERMITTED BY LAW, CUSTOMER'S EXCLUSIVE REMEDY WITH RESPECT TO ANY AND ALL LOSSES OR DAMAGES RESULTING FROM ANY CAUSE WHATSOEVER SHALL BE AS SPECIFIED ABOVE. AVIVE SHALL IN NO EVENT BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, EXEMPLARY DAMAGES, PUNITIVE DAMAGES, COMMERCIAL LOSS FROM ANY CAUSE, BUSINESS INTERRUPTION OF ANY NATURE, LOSS OF PROFITS OR PERSONAL INJURY OR DEATH EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES, HOWEVER OCCASIONED, WHETHER BY NEGLIGENCE OR OTHERWISE.

7. Indemnification.

1. 1. Customer. Customer agrees to indemnify, defend, and hold Avive harmless from and against all claims, costs, damages, losses, liabilities, fines, penalties, and expenses (including without limitation reasonable attorneys’ fees) (collectively, “Liabilities”) arising as a result of or in connection with Customer’s negligence, willful default, breach of any material provisions of this Agreement, or violation of any applicable law, rule, regulation, or third party proprietary right, in connection with Customer’s use or non-use of the Products.
   2. Avive. Avive agrees to indemnify, defend and hold any Customer harmless from and against all Liabilities arising as a result of Customer’s use of the Products to the extent such claims arise out of or are based upon (i) the failure of the Products to function or perform in accordance with its specifications, (ii) defects in design, material or workmanship of the Products, (iii) injuries or damage to an ultimate user or other person caused by the Products, or (iv) other claims arising from the proper use of the Products in accordance with its documentation.
   3. Exclusions. Avive’s obligations in this Section 7 will not apply if: (i) the Products are used in any manner other than for its intended purpose, (ii) Customer does not follow the required maintenance procedures or schedule, (iii) Customer or its personnel was negligent, malicious, or illegal in its use of the Products, (iv) the Product is used with expired, used, invalid, or third party electrode pads, with depleted batteries, with non-authorized third party accessories, or with other non-functional status, or (iv) the patient is successfully defibrillated through the use of the Products.
   4. Procedure. In the event of any claim against a Party for which the Party claims a right of indemnification hereunder, the Party shall provide the indemnifying Party prompt written notice of such claim and reasonable information and assistance, at the indemnified Party’s expense, to defend or settle the claim. The indemnifying Party will have the exclusive right to defend any such claim, action or allegation and make settlements thereof at its own discretion, and the indemnifying Party, may not settle or compromise such claim, action or allegation, except with prior written consent of the indemnified Party.

8. Disclaimer of Warranties; Limitation of Liability. EXCEPT FOR THE LIMITED WARRANTIES STATED IN SECTIONS 6, THE PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND AVIVE HEREBY EXPRESSLY DISCLAIMS ANY SUCH ADDITIONAL WARRANTIES, INCLUDING BUT NOT LIMITED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN NO EVENT SHALL AVIVE BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, OR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR RELIANCE DAMAGES ASSOCIATED WITH THIS AGREEMENT OR THE PRODUCTS, REGARDLESS OF WHETHER EITHER PARTY HAS BEEN WARNED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE IN ADVANCE, NOR WILL AVIVE AT ANY TIME BE RESPONSIBLE FOR PERSONAL INJURY OR THE LOSS OR DESTRUCTION OF ANY OTHER PROPERTY RESULTING FROM THE PRODUCTS. IN NO EVENT SHALL AVIVE’S LIABILITY TO CUSTOMER EXCEED THE FEES PAID TO AVIVE IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE CLAIM.

9. Term and Termination. This Agreement shall commence on the Effective Date and shall continue in full force and effect until terminated. Either Party may terminate this Agreement upon thirty (30) days’ prior written notice to the other Party. Sections 5-19 of this Agreement shall survive any expiration or termination of this Agreement. Notwithstanding the foregoing, in the event that Customer purchases Avive's Lifesaver Plan, Customer shall remain responsible for payment of the full five year lease term payment of the Lifesaver Plan, in accordance with Exihibit A, unless Customer's termination of the Agreement is due to Avive's material breach of this Agreement.

10. Disclosure of Discounts. In accordance with the discount provisions of the federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b), and the discount safe harbor regulations at 42 C.F.R. § 1001.952(h), Customer shall fully and accurately report all prices paid net of discounts where appropriate, and as appropriate, under any applicable payer reimbursement requirements and provide information upon request to Medicare, Medicaid and other federal health care programs on all discounts and price reductions received from Avive.

11. Software Updates. During the Term, updates to the Products’ software may become available from time to time, including safety related updates required for the safe operation of the Products. Customer agrees that Avive shall have the right to remotely access the Products upon reasonable prior notice to install any and all such updates. If Customer does not permit Avive to update the software in a timely fashion, Avive may void the Products’ warranty and/or terminate this Agreement.

12. Returns. Please read our Shipping and Return Policies carefully. Any Product returns offered by Avive which are not covered by our Shipping and Return Policies must be authorized by Avive and may be subject to a 15% restocking fee. Authorization may be obtained through the Customer Service department and a Return Material Authorization (RMA) number will be issued upon approval of the return and the number must be referenced on all returned packages.

13. Confidentiality. Neither Customer nor Avive shall disclose any of these General Terms and Conditions of Sale to any third party or otherwise make such terms public, unless such Party receives the prior written approval of the other Party or such disclosure is required by law.

14. Recall. If Avive is required by a regulatory agency to recall products, or Avive voluntarily initiates a recall of products, Customer agrees to cooperate with and assist Avive in locating and retrieving the recalled products. Customer shall promptly report to Avive any complaints or other information regarding the products of which it becomes aware that could reasonably be expected to lead to recall or other regulatory action.

15. Data. Avive may collect certain information about Customer's usage of the Products, including but not limited to: a) when an AED is applied to a patient, b) when and if the user contacts 911 through the Product, c) a patient’s heart rhythm, and d) the number of times a shock is delivered to a patient (a – d collectively “Usage Data”). Avive does not collect patients’ personally identifiable information, and Customer agrees to never send such information to Avive. As between Avive and Customer, all right, title and interest in and to any such Usage Data shall be owned by Avive. Customer agrees that Avive shall have the perpetual, irrevocable and worldwide right to use, modify, license, sublicense and otherwise exploit all or part of the Usage Data or any derivative thereof for any lawful purpose, in any manner or media now known or hereafter devised and without any remuneration, compensation or credit to Customer. In addition, Avive reserves the right to share details pertaining to Customer’s acquisition of the Products, as well as ongoing Product usage, maintenance and readiness data with local authorities, Avive partners, and other entities governing the use of AEDs in Customer’s geographical region.

16. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law provisions. Any dispute between the Parties regarding this Agreement will be subject to the exclusive venue of the state and federal courts in San Mateo County, California. The Parties hereby consent to the exclusive jurisdiction and venue of such courts.

17. Compliance with Laws. Customer shall comply with all federal, state and local laws, rules and regulations applicable to the purchase and use of the Products. In addition, Customer shall obtain all permits and licenses required by federal, state or local authorities in connection with any of the Products and shall bear all expenses in obtaining such permits and licenses or in complying with any related rules, regulations, ordinances and statues. Products are subject to the export laws and regulations of the United States and other countries. Any diversion or re-export contrary to, or any violation of, applicable export control laws and regulations is prohibited. Customer acknowledges that the SaaS services provided with the Products may contain features subject to United States and local country laws governing import, export, distribution and use. Customer is responsible for compliance by the Customer and its Authorized Users with United States and local country laws and regulations and shall not export, use or transmit the SaaS services (i) in violation of any export control laws of the United States or any other country, or (ii) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Order.

18. Force Majeure. Avive will use commercially reasonable efforts to fill orders but shall not be liable for any nonperformance or delays caused by shortage of raw materials, manufacturing problems, labor problems, acts of regulatory agencies, discontinuation of a product line, acts of God, or other causes beyond Avive’s control. Customer agrees that in such events Avive may allocate products among all purchasers without liability. In the event that Avive ceases to manufacture or distribute any of the Products for any reason, Avive shall have no obligation to supply such Products.

19. Intent. The Parties do not intend that any payments made under this Agreement be in return for the purchasing or ordering of any goods or services other than the specific Products described in this Agreement.

20. Independent Contractors. The Parties are acting independently and shall at all times act as independent contractors of each other in the manufacture and sale of the goods and are not partners, joint venturers, agents, or legal representatives of each other, for any purpose. Neither Party shall have any right or power to act for or bind the other, in any respect, to pledge its credit, to accept any service of process upon it, or to receive any notices of any nature whatsoever.

21. Miscellaneous. This Agreement, together with its exhibits, contains the entire agreement and understanding between the Parties on this subject matter. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Customer, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger, or consolidation, without the prior written consent of Avive. Avive may freely assign this Agreement. This Agreement may be amended or waived only by a writing signed by an authorized representative of Avive. For purposes of this Agreement, Avive and Customer may each be referred to as a “Party” and collectively as the “Parties”. Any notice required or permitted under the terms of this Agreement or required by law must be in writing (email sufficient) and shall be deemed sufficiently given when received, if (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate at the addresses indicated in the applicable Order, or (c) sent by overnight air courier, in each case properly posted and fully prepaid to the appropriate address set forth in the applicable Order, or (d) sent to the email address indicated in the applicable Order. Either party may change its address for notice by notice to the other party given in accordance with this Section. Notices will be considered to have been given at the time of actual delivery in person, three (3) business days after deposit in the mail as set forth above, or one day after delivery to an overnight air courier service. Customer acknowledges that Company may desire to use its name in press releases, product brochures and financial reports indicating that Customer is a customer of Company, and Customer agrees that Company may use its name in such a manner, subject to Customer’s consent, which consent will not be unreasonably withheld.

 

Exhibit A

LIFESaver Plan – AED Lease Program Additional Terms

1. LEASED PRODUCTS. During the term of this Agreement, and subject to the terms and conditions of this Agreement, Avive agrees to lease to Customer, and Customer agrees to lease from Avive, certain units of the Avive Automated External Defibrillator (AED) System as set established by the applicable Order (the “Products”). Customer may sublease the Products to a sublessee provided that (i) Customer will provide Avive with prior written notice of any intended sublessee, which Avive may reject in its sole discretion, and (ii) Customer will be liable to Avive under this Agreement for the conduct of any sublessee that would have constituted a breach of this Agreement if it had been engaged in by Customer. A current list of the features and benefits of the LifeSaver Plan can be found here.

2. DELIVERY, SHIPPING AND RISK OF LOSS. Avive will use reasonable efforts to deliver Products at the times specified in Avive’s acceptance of Customer’s Order. All Products delivered under this Agreement will be suitably packed for shipment in Avive’s standard containers, marked for shipment to Customer’s address specified in Customer’s Order, and shipped FOB Avive’s facility or Avive’s fulfillment center (“Shipping Point”), at which point title and risk of loss to Product shall pass to Customer. All freight, insurance, and other shipping expenses, if any, associated with the transfer of Product ordered by Customer from the Shipping Point will be specified on the Order. Avive may implement a shipping charge for any of the Products.

3. LEASE AND PAYMENT.

1. 1. Lease. Customer shall pay Avive a lease fee established by the applicable Order for the term of this Agreement. Customer will be invoiced on an annual basis for the lease fees. All invoices are due and payable per the terms of the Order. If Customer pays any fees with a credit card, then Avive may seek pre-authorization of Customer's credit card account prior to purchase to verify that the credit card is valid and has the necessary funds or credit available to cover the fees to be charged.
   2. Taxes. Customer shall, in addition to the other amounts payable under this Agreement, pay all sales and other taxes, federal, state, or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement.

4. OWNERSHIP. Avive shall retain title to all Products provided under the LifeSaver Plan, and Customer shall keep such Products free of all security interests, liens, and other encumbrances. Customer assumes the entire risk of loss, damage, theft, or destruction of the Products while it is in the possession of Customer or any sublessee and during transportation to and from Avive’s or any sublessee’s premises. Customer will adequately insure the Products against loss or damage while such Products are in the possession or control of Customer. If requested by Avive, Customer shall furnish evidence of such insurance. Customer shall also procure all applicable permits and licenses necessary for the operation of the Products.

5. USE, REPAIR AND SERVICE

1. 1. Use of the Products. Customer agrees to use the Products only in accordance with applicable laws and as set forth in this Agreement. Customer shall not, without Avive’s written consent, make any alterations, additions, or improvements to the Products, and all right, title, and interest to all such alterations, additions, or improvements are hereby assigned by Customer to Avive. Customer shall use the Products solely in the conduct of its business and in a careful and proper manner.
   2. Maintenance. Customer agrees to maintain the Products in good repair, order, operating condition, and appearance, at Customer’s expense and pursuant to Avive’s Products care and maintenance instructions as set forth in this Agreement. In the event of any loss, theft, or damage of any kind whatsoever to the Products, Customer shall give prompt written notice to Avive of such loss, theft, or damage. Except for the limited Avive Warranty provided under Section 6, Customer shall be fully responsible for any loss, theft or damage of the Products that occurs during the term of this Agreement. Customer shall not, without Avive’s written consent, allow any third party other than Avive, a sublessee, or a party authorized by Avive to repair or service the Products.

6. TERM AND TERMINATION. Unless otherwise terminated in accordance with this Section 6, this Lease Agreement will remain in full force and effect for the term identified on the Order, but in no circumstances less than five (5) years, unless otherwise terminated by or mutually extended by the Parties hereto.

1. 1. Termination by Either Party. Each Party has the right to terminate this Agreement if the other Party is in material breach of this Agreement and the breaching Party fails to cure such breach within thirty (30) days of receiving written notice thereof from the non-breaching Party. For the avoidance of doubt, Customer’s breach of Section 3(a) shall be deemed a material breach of this Agreement.
   2. Effect of Expiration or Termination. Upon the expiration or termination of this Agreement, Customer shall, at its own cost, return the Products to Avive within thirty (30) days of the effective date of termination or expiration. In the event of early termination, Avive shall have the right to enter Customer’s premises for the purposes of repossessing the Products, and Customer hereby consents to such entry. Avive will be entitled to receive from Customer all collection costs, including attorneys’ fees, incurred in the enforcement of its rights under this Agreement. The Products shall be returned in as good a condition as when shipped to Customer, ordinary wear and tear excepted. In the event that the Products are not returned in such condition, Customer will be liable to Avive for the full replacement value of the Products. Following the termination of this Agreement, Customer will pay Avive any outstanding fees and return the Products to Avive and Sections 4, 6(b), 7, and 9 shall survive such termination.

7. WARRANTY. During the term of this Agreement, Avive warrants that, so long as Customer is not in breach of any provision of this Agreement, neither Avive nor its successors or assignees or anyone acting or claiming through Avive will interfere with Customer’s quiet enjoyment and use of the Products.

8. WAIVERS. Customer hereby specifically waives any and all rights and remedies conferred upon Customer by UCC Sections 10508 through 10522, including (without limitation) Customer’s rights to (i) cancel or repudiate this Agreement, (ii) reject or revoke acceptance of any Products, (iii) recover damages from Avive for breach of warranty or for any other reason, (iv) claim a security interest in any rejected property in Customer’s possession or control, (v) deduct from rental payments all or any part of any claimed damages resulting from Avive’s default under this Agreement, (vi) accept partial delivery of the Products, (vii) “cover” by making any purchase or lease of other property in substitution for property due from Avive, (viii) recover from Avive any general, special, incidental, or consequential damages, for any reason whatsoever, and (ix) seek specific performance, replevin, or the like for any of the Products. To the extent permitted by applicable law, Customer also hereby waives any rights now or hereafter conferred by statute or otherwise which may require Avive to sell, lease, or otherwise use any Products in mitigation of Avive’s damages or which may otherwise limit or modify any of Avive’s rights or remedies. Notwithstanding the foregoing, nothing in this Agreement shall be construed as a waiver of Customer’s right to seek a separate recovery of any rental payment that is not due and payable under this Agreement, and Customer retains the right to seek damages or other remedies on account of Avive 's failure to perform its obligations under this Agreement.

9. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, INCLUDING LOST PROFITS AND COST OF COVER, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, REGARDLESS OF WHETHER EITHER PARTY HAS BEEN WARNED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE IN ADVANCE, NOR WILL AVIVE AT ANY TIME BE RESPONSIBLE FOR PERSONAL INJURY OR THE LOSS OR DESTRUCTION OF ANY OTHER PROPERTY RESULTING FROM THE PRODUCTS. IN NO EVENT SHALL AVIVE’S LIABILITY TO CUSTOMER EXCEED THE FEES PAID TO AVIVE IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE CLAIM.

10. FURTHER ASSURANCES. Customer agrees to cooperate with and deliver to Avive such instruments and assurances as Avive deems necessary to the confirmation or perfection of its security interest in the Products including, but not limited to, executing UCC-1 Financing Statements.

11. INSPECTION. Customer will permit any authorized representative of Avive to inspect the Products and to access and copy usage information of the Products, at reasonable times and as often as Avive reasonably requests. Any such inspection will be subject to any reasonable security requirements of Customer.

12. MISCELLANEOUS PROVISIONS. This Agreement, together with all applicable attached exhibits, contains the entire agreement and understanding between the Parties on its subject matter. No representations or statements, other than those expressly set forth herein, were relied upon by the Parties in entering into this Agreement. Customer may not assign or transfer this Agreement without Avive’s prior written consent. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, U.S.A. without reference to conflicts-of-law principles. Any dispute arising out of this Agreement shall be brought in, and the Parties consent to personal and exclusive jurisdiction of and venue in, the state and federal courts within San Mateo County, California. Failure or delay by either Party in exercising any right hereunder shall not operate as, or be deemed a waiver of such right or of any other right hereunder, except for violations which, after discussion and mutual agreement by the Parties, are waived in writing. This Agreement may be amended or waived only by a writing signed by an authorized representative of Avive. Except for payment obligations, neither Party shall be liable for damages for any delay arising out of causes beyond its reasonable control, including without limitation acts of God, labor disputes, riots, wars, component shortages. If any provision of this Agreement is held to be invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect and will be interpreted to reflect the original intent of the Parties.