ZYTO SELECT Users Manual Copyright ©2013 All rights reserved. 02_MAN_SELECT-01en
Subscription Program. For each Select <strong>5.0</strong> system ordered, Subscriber agrees to pay ZYTO Technologies, Inc. (“ZYTO”) an initial set-up fee of $597.00, which includes the purchase of the ZYTO Hand Cradle. Beginning thirty (30) days after the signature date on this agreement, for each Select <strong>5.0</strong> system ordered, Subscriber also agrees to pay ZYTO a monthly subscription fee of $97.00 per month for a period of 24 months for a non-exclusive license to use ZYTO’s Select <strong>5.0</strong> System. Upon completion of the 24 month period, subscription service will convert to month-to-month. Subscriber will provide ZYTO a credit card to be processed for the initial set-up fee and thereafter each month for the monthly subscription fee. Provided Subscriber’s monthly subscription account is in good standing at any time during its monthly subscription service Subscriber may upgrade from the Select <strong>5.0</strong> System to purchase another system within ZYTO’s professional line of products and ZYTO will credit Subscriber’s prior three (3) monthly subscription payments towards the purchase price of any such system within ZYTO’s professional line of products. Cancellation. Subscriber may cancel his/her subscription service at any time during the first 90 days of purchase by sending written notice to ZYTO at 387 South 520 West, Suite 200, Lindon, Utah 84042, or by e-mail at support@ZYTO.com. Cancellation notices received after 90 days will be subject to a $200 cancellation fee. No refunds will be given to Subscriber upon cancellation. Cancellation will take effect at the end of the current period; no prorated refund of subscription fees already paid will be made. Warranty. As part of the subscription service, the Select <strong>5.0</strong> System is warranted to conform to the applicable specifications for a period of one (1) year for all ZYTO branded electronic components and one (1) year for all ZYTO branded mechanical parts from the date of shipment from ZYTO’s facility in Lindon, Utah. The warranty will continue for all active installations based on a current and continuous subscription. All ZYTO software updates will be available at no charge based on a current and continuous subscription. In the event subscription becomes non-continuous for any reason the hardware and electronic components will not be eligible for a continued monthly extension of warranty. In addition, ZYTO will not provide software updates without a current and continuous subscription. Non-continuous or inactive installations may replace any broken or damaged parts at current retail cost, FOB ZYTO. ZYTO shall, at its own expense and as its sole obligation and Subscriber’s exclusive remedy for any breach of the foregoing warranty, repair or replace any defective component, part or system returned (return authorization required) to ZYTO within the applicable warranty period. This warranty does not apply to any damage resulting from misuse, abuse or neglect. Parts broken due to misuse, abuse or neglect will be replaced at retail cost. THE FOREGOING WRITTEN WARRANTIES ARE IN LIEU OF ANY OTHER WARRANTY WHATSOEVER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ZYTO EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR USE, ANY WARRANTY OF MERCHANTABILITY, ANY WARRANTY OF NONINFRINGEMENT OR TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, IN EACH CASE WITH RESPECT TO ALL SERVICES, EQUIPMENT AND PRODUCTS FURNISHED HEREUNDER. Warranties - Accessory Products. Accessory Products are warranted in accordance with the manufactures original warranties. Typically these warranties conform to the applicable specifications for a period of ninety (90) days for all electronic components and ninety (90) days for all mechanical parts from the date of shipment from ZYTO’s facility in Lindon, Utah. Upon expiration of the original manufactures warranties, Accessory Products may be purchased at retail cost plus shipping. All cables are considered Accessory Products. Delivery. Delivery shall be made F.O.B. (EXW under INCOTERMS 2000) ZYTO in Lindon, Utah, USA with shipping charges to be paid by Subscriber. Adequate insurance will be arranged by ZYTO for protecting goods while in transit. In the absence of specific instructions, ZYTO will <strong>select</strong> the carrier, and will assume responsibility for follow-up of any claims of loss or damage in shipment with the carrier. Subscriber understands that he/she will be responsible for (if applicable) all shipping fees, duties, taxes, port handling fees and other customs charges. Subscriber shall inspect each item of equipment delivered pursuant to this Agreement and shall immediately notify ZYTO of any missing or damages items. If Subscriber fails to provide such notice in writing within three (3) days after the delivery of the equipment, Subscriber will be conclusively presumed to have accepted the equipment and any subsequent claim that the equipment was not provided in fully functional order will not be considered. Return of the Equipment. At the end of the subscription service, the Subscriber shall not be obligated to return the ZYTO Hand Cradle and or any Accessory Products to ZYTO. Certain Acknowledgements. Subscriber is a qualified, licensed or certified healthcare professional. Subscriber is aware that the Select <strong>5.0</strong> System is not used to diagnose, treat, or cure health conditions or diseases. Subscriber further acknowledges that learning to use and market the equipment is the responsibility of the Subscriber, and that ZYTO is not responsible for Subscriber’s ability/inability to master the necessary skills to utilize and market the technology. Indemnification. Subscriber will indemnify, defend and hold ZYTO and its officers, directors, employees, agents, affiliates and representatives (collectively “Affiliates”) harmless from and against any and all losses, damages, costs, liabilities, claims, actions and expenses TERMS AND CONDITIONS (including, without limitation, reasonable attorneys’ fees, litigation costs, court costs and amounts paid in investigation, defense or settlement of any of the foregoing, whether incurred at the arbitration, trial, appellate or administrative levels) (collectively, “Damages”), (whether or not arising out of third-party claims and whether arising in contract, tort or otherwise) arising out of or related to (i) Subscriber’s possession, use or resale of the equipment or any other goods delivered by ZYTO to Subscriber hereunder; (ii) the use of any services provided by ZYTO; or (iii) Subscriber’s breach of any term of this Agreement. Prohibition on Reverse Engineering, Decompilation, and Disassembly. Subscriber may not reverse engineer, decompile, or disassemble the Select <strong>5.0</strong> software or hardware, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. Copyright. All title, including but not limited to copyrights, in and to the Select <strong>5.0</strong> System and any copies thereof are owned by ZYTO. All title and intellectual property rights in and to the content which may be accessed through use of the Select <strong>5.0</strong> System is the property of ZYTO. This Agreement grants you no rights to use such content. All rights not expressly granted are reserved by ZYTO. Disclaimer/Limitation of Liability. IN NO EVENT SHALL ZYTO BE LIABLE TO ANYONE FOR SPECIAL, COLLATERAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF ZYTO’S PROD- UCTS, WHETHER IN AN ACTION BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ZYTO OR ANY OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUCH EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, COSTS OF REMOVAL AND REINSTALLATION OF ITEMS, LOSS OF GOOD- WILL, LOSS OF PROFITS, LOSS OF USE, AND INTERRUPTION OF BUSINESS. EXCEPT FOR PERSONAL INJURY CAUSED BY ZYTO’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE ENTIRE LIABILITY OF ZYTO AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND SUPPLIERS FOR ANY DAMAGE OR EXPENSE FROM ANY CAUSE WHATSOEVER WILL IN NO EVENT EXCEED THE CONTRACT PRICE FOR THE PARTICULAR GOODS INVOLVED. Actions, however asserted, arising out of this Agreement, shall be commenced within one (1) year from the date the cause of action accrues. Subscriber will not pursue any claims against ZYTO for any liability ZYTO may have under or relating to this Agreement until Subscriber first makes claims against Subscriber’s insurance provider(s) and such insurance provider(s) finally resolve(s) such claims. Return Policy. Subscriber acknowledges that there is a no return policy and all sales are final. Subscriber further acknowledges that any warranty issues will be handled within the terms stated under this Agreement. Collection Fees. Should collection become necessary, Subscriber hereby expressly agrees to pay all costs of collection including an additional collection of 35% whether or not the account is turned to an outside collection agency. Subscriber further agrees to pay all court costs and attorney’s fees should legal action become necessary. Excusable Delays. In the event of a delay in the performance of any obligation of ZYTO due to causes beyond the control and without the fault or negligence of ZYTO, the deliveries and performance required of ZYTO under this Agreement shall be extended by a period of time no greater than the time lost because of any such delay, and ZYTO shall make every effort to minimize the delay. Such causes include, but are not restricted to, acts of God or of the public enemy, acts of the government, acts of Subscriber, fires, floods, epidemics, quarantine restrictions, freight embargoes, trade or technology transfer restrictions, unforeseen circumstances, unusually severe weather and defaults of subcontractors or vendors (unless the contract work to be furnished by the subcontractor or vendors was attainable from other sources in sufficient time to permit ZYTO to meet the required delivery schedule). Miscellaneous. This Agreement constitutes the entire agreement between the parties. No modification or amendment of this Agreement shall be effective unless in writing and signed by both parties. This Agreement replaces any and all prior agreements between the parties pertaining to the Select <strong>5.0</strong> system. This Agreement shall be construed in accordance with the laws of the State of Utah. If any portion of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision, it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited. The failure of ZYTO to enforce any provision of this Agreement shall not be construed as a waiver or limitation of ZYTO’s right to subsequently enforce and compel strict compliance with every provision of this Agreement. Compliance with Laws. Each party will comply with all laws, rules and regulations applicable to the performance of its obligations under this Agreement. Software Installation. Subscriber is granted one license per system purchased. Subscriber may install the software on no more than two computers with the license active on only one computer at a time. Subscriber is required to sync software at least every twenty-one (21) days, at which time installation database is encrypted and backed up to a secured server and software is updated if updates are available. Software is not Mac compatible. iii
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