REAL i-Series™ – Product Terms

REAL i-Series® – Purchase Agreement

Upon placing a purchase order with Penumbra, Inc. (“Penumbra”) for the REAL i-Series, you (“Facility”) hereby agrees to the following terms and conditions (the “Agreement”):

1. REAL i-Series. The REAL i-Series is a virtual reality system designed to support general wellness through immersive virtual experiences and should only be used in accordance with the REAL i-Series user manual, which is provided with the product and available here: https://www.realsystem.com/usermanual/.  REAL i-Series has no additional value outside of its intended use; it is not reimbursable under Medicare, Medicaid, or other health care programs; and, it is not available for resale.  The REAL i-Series is comprised of both hardware and software components:
   1. the head-mounted display (the “Hardware”), which shall be purchased outright under the terms of this Agreement; and
   2. the software necessary to operate the connectivity and core functionality of the REAL i-Series and underlying the growing library of the therapeutic and wellness applications available on the headset (the “Software”), to which Penumbra grants Facility a non-exclusive, non-transferable, revocable license, without the right to grant sublicenses (the “REAL Software License”) for use only in the United States.
2. Conditions.
   1. Penumbra may use technical measures for security, including software updates and anti-piracy systems, to prevent use of any hardware accessories not authorized or distributed by Penumbra (“Unauthorized Hardware”), and to prevent use of any software or firmware not distributed by Penumbra (“Unauthorized Software”) in conjunction with Facility’s use of the REAL i-Series.
   2. Use of any Unauthorized Software or Unauthorized Hardware or any violation of this Article 2 (i) shall be deemed a material breach of this Agreement; (ii) may cause the REAL i-Series to malfunction or stop working; and, (iii) shall void any warranty provided under the terms of this Agreement.
   3. Penumbra may update the software included in the REAL Software License from time to time without notice to Facility, for example, to include new feature enhancements, add new therapies, or update any technical limitation, security, or anti-piracy feature at a time mutually agreed upon with Facility.
   4. Facility shall not: (i) use or install any Unauthorized Software or Unauthorized Hardware with the REAL i-Series; (ii) modify, reverse engineer, decompile, or otherwise attempt to derive the source code, structure, design, or method of operation of the software included in the REAL Software License; (iii) modify, disassemble, or otherwise tamper with the Hardware or the software and firmware included in the REAL Software License; (iv) attempt to circumvent technological measures or gain unauthorized access through hacking, password mining or any other means; (v) copy, modify, distribute, sell, or use for the benefit of any third party other than patients of the REAL i-Series; or (vi) attempt to defeat or circumvent any technical limitation, security, or anti-piracy feature of the software included in the REAL Software License or REAL i-Series.
   5. Penumbra will revoke the REAL Software License if Facility attempts to circumvent any security controls of the REAL i-Series or REAL Software License or conducts any of the unauthorized actions related to the REAL Software License. Upon termination, no refunds shall be issued by Penumbra.
3. Purchase and Delivery of the REAL i-Series.
   1. Facility shall place a purchase order for the quantity of REAL i-Series it requires by using its standard purchase order form, which shall be subject to the terms and conditions herein (“Purchase Order”).
   2. Penumbra shall issue an invoice in the name of Facility at the address listed on the Purchase Order upon shipment of the ordered REAL i-Series.
   3. Penumbra will ship to the address on the Purchase Order, FCA (Incoterms^® 2020) Penumbra’s designated shipping point.  Delivery of the REAL i-Series to the carrier at Penumbra’s designated shipping point shall constitute delivery and transfer of title to and risk of loss for REAL i-Series to Facility at that time.
4. Payments. Facility may pay for the REAL i-Series either upon receipt of an invoice from Penumbra or by credit card.
   1. Invoiced Payments. Facility’s payments are due within thirty (30) calendar days from the invoice date.  Each invoice shall give a detailed account of the products purchased, the price for those and shall reference the appropriate Purchase Order number.
   2. Credit Card Payments.
      1. Facility authorizes Penumbra, its third-party payment processors and any other billing agents to charge Facility for the items included on each Purchase Order.
      2. Facility hereby authorizes the issuer of its selected payment method to pay any amounts due as described herein without requiring a signed receipt.   Facility authorizes Penumbra to continue to attempt to charge and/or place holds with respect to all sums described herein, or any portion thereof, to Facility’s payment method until such amounts are paid in full.
      3. Facility shall provide updated payment information upon request and any time the information previously provided is no longer valid. Facility represents and warrants that it has the legal right to use all payment method(s) provided hereby.  Penumbra reserves the right to reject any payment method, for any reason, including without limitation any such method for which payment will not process after two (2) attempts by Penumbra. Neither Penumbra nor any agent of Penumbra will have any liability whatsoever for any insufficient funds or other charges incurred by Facility as a result of attempts to charge, and/or place holds on, Facility’s specified payment method as contemplated herein.
   3. Credit Reports. Facility hereby authorizes Penumbra to obtain a credit report from one or more consumer credit reporting agencies for any lawful purpose, including for authentication purposes or to make credit decisions.  Facility authorizes Penumbra to verify information in its credit report and agrees that Penumbra may contact third parties to verify any such information.
5. Warranty.
   1. Penumbra hereby extends a one (1) year warranty on the REAL i-Series, warranting that the Hardware is free from defects in material and workmanship during the one (1) year period following the invoice date for such Hardware, or such longer period as indicated by the relevant product description should an extended warranty be purchased (“Warranty”). Should Facility return a REAL i-Series to Penumbra with evidence of damage covered by the Warranty, Penumbra’s sole and exclusive responsibility shall be to replace the REAL i-Series; provided, however, that: (i) the returned REAL i-Series has been operated in accordance with Penumbra’s written instructions; (ii) no repairs, alterations or replacements have been made to the returned REAL i-Series without Penumbra’s written approval; and (iii) Facility notifies Penumbra in writing within thirty (30) days after the defect becomes apparent.  In no event shall Penumbra’s aggregate liability in connection with breach of any warranty or warranties exceed the amount paid for the REAL i-Series.  Penumbra requires the return of the REAL i-Series to establish any claim of defect.
   2. a.     The foregoing warranty does not cover and shall be void for: (i) defects or damages resulting from accident, misuse or abuse, neglect, alterations, service or repair by anyone other than Penumbra, including without limitation by Facility; (ii) improper operation, maintenance, or connections; (iii) normal wear and tear; or (iv) use of Unauthorized Hardware or Unauthorized Software.
   3. a.     EXCEPT AS EXPRESSLY STATED IN THIS ARTICLE V, PENUMBRA MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE.  PENUMBRA HEREBY DISCLAIMS ALL SUCH OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS.
6. Governing Law; No Special Damages. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of California, without application of conflicts of law.  Both parties hereby consent to the jurisdiction of the federal and state courts located in the State of California.  Neither party will be liable for any special, incidental, punitive, or consequential damages for any action based on this Agreement, including, without limitation, for lost profits (even if the party has notice of the possibility of such damages).
7. Waiver; Severability. Failure of a party to insist upon the performance of the other party of any provision of the Agreement shall not be treated as a modification of the Agreement, nor shall such failure or election be treated as a waiver of the right of such party at any later time to insist upon strict performance of such provision.  If any provision of this Agreement is declared void or unenforceable, such provision shall be severed from the Agreement, which shall otherwise remain in full force and effect.
8. Communications. Facility consents to accept and receive communications from Penumbra, including e-mails and telephone calls related to the Agreement.  Such communications may include, but are not limited to, requests for secondary authentication, receipts, fee increases, reminders, notifications regarding updates or support, and marketing and promotional communications.  Facility may opt-out of receiving promotional email communications sent by Penumbra by responding to such messages with a request to opt-out or by contacting Penumbra using the Contact Info.
9. Ownership. Penumbra owns all rights, title, interest, copyright, patents, and other intellectual property rights underlying the REAL i-Series.  This Agreement does not grant any rights to Facility in Penumbra’s trademarks, service marks or other intellectual property other than pursuant to the licenses expressly granted herein.
10. Entire Agreement; Amendment. This Agreement, as to its subject matter, exclusively and completely states the rights, duties and obligations of the parties and supersedes all prior and contemporaneous representations, letters, proposals, discussions and understandings by or between the parties.No modification of or amendment to this Agreement will be effective unless in writing and signed by all parties hereto.
11. Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile or .pdf), each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.
12. Notice. Any notice required or permitted under Agreement shall be deemed properly given (i) by Penumbra, if e-mailed to the email address provided by Facility; (ii) by Facility, if emailed to askreal@realsystem.com; or (iii) if delivered by overnight carrier to either party at their business address.