Terms of service

These Terms and Conditions of Sale and the non-conflicting provisions in Seller’s quotation (if any), acknowledgement or invoice from Seller (collectively, the “Agreement”) govern in all respects all sales and downloads of any equipment, accessories, marketing materials or other products (collectively, “Products”) from InMode Ltd. or any affiliate thereof selling Products (“Seller”) to purchaser (“Buyer”) via the InMode Resource Center available at https://inmoderesources.com (the “eStore”). Buyer acknowledges that Seller, through its affiliates (i.e., parents, subsidiaries and other affiliates) offers expanded manufacturing capability, and Seller may in its sole discretion manufacture, supply or deliver from any location or source, including any of its affiliates, any Products and such manufacture, supply or delivery from such affiliates shall also be subject to these Terms and Conditions of Sale. These Terms and Conditions of Sale are an integral part of the InMode Terms of Use that apply generally to the website of InMode Ltd. Prior to placing an order for Products in the eStore, Buyer should review the InMode Privacy Policy available at https://inmodemd.com/privacy-policy/. In the event that Buyer has entered into or does subsequently enter into additional terms and conditions or agreements regarding other products or services provided by Seller or Seller’s affiliate, this Agreement shall continue to govern and control all purchases of Products via the eStore.

1. Prices and Taxes. Prices for Products are those in effect when an order is placed and will be sent to Buyer via a confirmation email. Seller may accept or reject purchase orders in its sole discretion. Prices posted in the eStore do not include taxes or shipping and handling charges. Buyer is responsible for any sales, use or any other local, state, provincial or federal taxes and any shipping and handling charges arising from the sale or delivery of the Products as set forth in Buyer’s eStore shopping cart and confirmation email. All prices, models and material specifications posted on the eStore are subject to change or withdrawal by Seller without notice. Seller is not responsible for pricing, typographical or other errors set forth in the eStore and reserves the right to cancel any orders arising from such errors.

2. Payment. Terms of payment are within the sole discretion of Seller and payment must be received prior to any acceptance of an order by Seller, unless otherwise agreed in writing by Seller. Seller accepts various credit card payment methods for all purchases as shown in the eStore. If applicable, Buyer represents and warrants to Seller that the credit card information it provides to Seller via the eStore is accurate and complete and that Buyer is duly authorized to use such credit card for the purchase and that Buyer shall pay in full such charges at the posted prices including any and all applicable taxes and shipping and handling charges. All prices are posted, and must be paid, in United States dollars, unless otherwise specified. If Buyer fails to make full and timely payment according to its terms, or upon such credit terms (if any) as expressly agreed to in writing by Seller, then, in addition to all other rights and remedies available to Seller: (a) Buyer is responsible for any and all commercially reasonable charges, expenses or commissions incurred by Seller in stopping delivery, transportation and storage of Products, and in connection with the return or resale of Products; (b) Seller has the right to terminate the Agreement or suspend further performance under the Agreement and other agreements with Buyer; and (c) Buyer shall be liable to Seller for all reasonable costs of collection, including reasonable attorneys’ fees. Any past due amounts are subject to service charges of the maximum amount permitted by law and, if credit terms have been agreed in writing, Seller reserves the right to charge lawful rates of interest on any outstanding balance, whether past due or not.

3. Changes. Seller may revise prices, dates of delivery, and warranties upon acceptance of requests by Buyer for modifications to Products. Seller reserves the right to change designs and specifications for Products without prior notice.

4. Shipment and Delivery. Deliveries of Products, title and risk of loss pass to Buyer upon transfer of the Products to the carrier. Title to any software provided with Products remains with Seller or its supplier. Any claims for shortages or damages suffered in transit must be submitted directly to the carrier. All shipping dates are approximate and not guaranteed. Seller reserves the right to make partial shipments. Seller is not bound to tender delivery of any Products for which Buyer has not provided shipping instructions. If shipment of Products is postponed or delayed by Buyer for any reason, including a Force Majeure Event (defined in Section 9), Seller may move Products to storage for the account of and at the risk of Buyer and the Products will be deemed delivered. Products may not be returned for any reason except with the prior written consent of Seller, which may include additional terms including, but not limited to a restocking fee of at least fifteen percent (15%). In addition to such restocking fee, Buyer shall be responsible for all return shipping charges. Unless otherwise agreed in writing by Seller, all sales are final and Buyer is not permitted to exchange or return any Products to Seller or entitled to any refund for any Products purchased via the eStore. Buyer further agrees that it is solely responsible for selecting and purchasing the correct product via the eStore.

5. Limited Warranty. (a) Seller warrants to Buyer only and to no other person or entity, whether via resale or otherwise, as follows: (i) all Products (except for instances in which a product-specific warranty applies) manufactured by Seller will conform to the specifications provided by Seller and will be free of defects in material and workmanship (“Defects”) for a period of thirty (30) days following ship date. Any resale or transfer of Products to any other person or entity shall immediately void this limited warranty. Buyer must notify Seller of any Defect promptly upon discovery and if such notification occurs within the applicable warranty period, Seller shall remedy such Defect by, at Seller’s option, adjustment, repair or replacement of Products or any affected portion of Products, or providing a refund of the portion of the purchase price attributable to the defective portion of the Product. Buyer assumes all responsibility and expense for removal, reinstallation and freight charges (both for return and delivery of new parts). Buyer must grant Seller access to the premises at which Products are located at all reasonable times so that Seller can evaluate any Defect and make repairs or replacements on site. Repaired or replaced portions of Products are warranted until the later of the end of the warranty period applicable to the defective portion of Products repaired or replaced; or 30 days following the completion of the repair or ship date of the replacement parts.

(b) Buyer is responsible for disassembly and re-assembly of non-Seller supplied products. Seller does not warrant and shall have no obligation with respect to any Products that: (i) have been repaired or altered by someone other than Seller or its authorized service representatives; (ii) have been subject to misuse, abuse, neglect, intentional misconduct, accident, Buyer or third party negligence, unauthorized or attempted modification, disassembly, dismantling or alteration, use beyond rated capacity or in a manner inconsistent with the specifications or guidelines set forth in any operator or user manual, a Force Majeure Event, or improper, or a lack of, maintenance; (iii) are comprised of materials provided by, or designed pursuant to instructions from, Buyer; (iv) have failed due to ordinary wear and tear; or (v) have been exposed to adverse operating or environmental conditions. Products and third party software supplied by Seller, but manufactured or created by third parties are warranted only to the extent of the manufacturer’s warranty and to the extent such manufacturer permits Seller to pass any third-party warranty through to Buyer. If Seller has relied upon any specifications, information, representations or descriptions of operating conditions or other data supplied by Buyer or its agents to Seller in the selection or design of Products, and actual operating conditions or other conditions differ, any warranties or other provisions contained herein that are affected by such conditions will be null and void.

(c) Buyer is solely responsible for determining the fitness and suitability of Products for the use contemplated by Buyer. Buyer shall ensure that (i) the Products are used only for the purposes and in the manner for which they were designed and supplied, (ii) all persons likely to use or come into contact with the Products receive appropriate training and copies of applicable instructions and documentation supplied by Seller, (iii) all third parties who use or may be affected by or rely upon the Products are given full and clear warning of any hazards associated with them or limitations of their effectiveness and that safe working practices are adopted and complied with, (iv) any warning notices displayed on the Products are not removed or obscured, (v) any third party to whom the Products are supplied agrees not to remove or obscure such warning notices. Buyer assumes all responsibility for any loss, damage, or injury to persons or property arising out of, connected with, or resulting from the use of Products, either alone or in combination with other Products or components.

(d) Seller warrants that the Seller-originated software included with Products (“Seller Software”), when properly installed, will substantially conform to the applicable functions specified in its documentation for a period of 30 days following its ship date. If any failure to conform to this warranty occurs during such 30-day period, Seller shall, upon prompt written notice of the specific non-conformity from Buyer, correct such non-conformity by repair or replacement, risk of loss to Buyer, of the defective program or refund Buyer’s purchase price applicable to the defective program. Seller has no obligation for Seller Software failures resulting from: (i) unauthorized modification of the Seller Software; or (ii) Buyer-supplied software or interfacing. The foregoing warranty does not apply to software originating from third parties (“Third Party Software”). To the extent applicable and authorized by the Third Party Software supplier, Seller hereby assigns to Buyer any warranties provided by such suppliers. Seller provides Third Party Software “as is,” without any warranties, express or implied. Seller has no obligation for Third Party Software failures.

(e) THE WARRANTIES SET FORTH IN THIS SECTION 5 ARE SELLER’S SOLE AND EXCLUSIVE WARRANTIES WITH RESPECT TO PRODUCTS, SOFTWARE AND SERVICES, AND ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AGAINST INFRINGEMENT; AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, USAGE OF TRADE, AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED TO SELLER IN SPECIFICATIONS, DRAWINGS OR OTHERWISE, AND WHETHER OR NOT THE PRODUCTS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY SELLER FOR BUYER’S OR ANY OTHER PERSON’S USE OR PURPOSE. SELLER DOES NOT WARRANT THAT THE OPERATION OF SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY DEFECT OR MALFUNCTION IN THE SOFTWARE IS CORRECTABLE OR WILL BE CORRECTED. Some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to Buyer. THE REMEDIES PROVIDED IN THIS SECTION 5 ARE BUYER’S SOLE REMEDIES FOR ANY AND ALL CLAIMS ARISING FROM OR RELATED TO PRODUCTS. All warranty claims must be received by Seller on or before the end of the applicable warranty period.

6. Software Licenses.

(a) With respect to Products containing software, Seller grants to Buyer a limited, nonexclusive, fully paid-up license, without the right to sublicense, to use the software, subject to the following: (i) the software may be used only in conjunction with Products specified and provided by Seller; (ii) the software must be kept strictly confidential; (iii) the software shall not be copied, reverse engineered, or modified; and (iv) Buyer’s right to use the software terminates immediately when Products are no longer used by Buyer or when otherwise terminated, e.g., for breach of the Agreement.

(b)Nothing in the Agreement shall be deemed to convey to Buyer any title to or ownership in any software provided under the Agreement or the intellectual property contained therein in whole or in part, nor to designate the software a “work made for hire” under the U.S. Copyright Act. Upon termination of this license, Buyer must immediately cease using the software and, without retaining any copies, notes or excerpts thereof, either return the software to Seller or destroy it and remove all machine readable software from all of Buyer’s storage media. If Buyer or any of its agents modifies any Products supplied by Seller or combines any of them with any other products or process to produce products or perform a process not furnished by Seller and such modification, combination, production or performance is the cause of alleged infringement of a U.S. patent, Buyer shall defend and indemnify Seller as set forth in Section 8 below.

7. Limitation of Remedy and Liability. Seller’s total liability under the Agreement, whether in law, equity, contract, infringement, negligence, strict liability or other otherwise, shall not exceed the price paid by Buyer under the Agreement for the Product giving rise to the claim. Under no circumstances shall Seller be liable for any special, incidental, indirect, punitive or consequential damages for any reason. “Consequential damages” includes, without limitation, loss of anticipated profits; business interruption; loss of use, revenue, reputation or data; costs incurred, including without limitation, costs for capital, fuel or power; loss or damage to property or equipment; and environmental clean-up. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to Buyer. Any action arising under or relating to the Agreement, (whether based in law, equity, contract, infringement, negligence, strict liability, other tort or otherwise), must be commenced with one (1) year after the date of shipment of the respective Product(s). Seller assumes no obligation or liability for technical advice given or not given, or results obtained. Seller has set its prices and entered into the Agreement in reliance upon the limitations of liability and other terms and conditions specified herein, which allocate the risk between Buyer and Seller and form a basis of this bargain between the parties.

8. Indemnification. Buyer shall indemnify, defend and hold harmless Seller and its affiliates and their respective shareholders, officers, directors, members, agents and employees against all expenses, costs (including reasonable attorneys’ fees), claims, demands, damages, liability, suits or the like arising in connection with or out of (i) any breach by Buyer of the Agreement; or (ii) Seller’s adherence to specifications or use of material furnished or specified by Buyer or any of its agents.

9. Excuse of Performance. Seller has no liability for non-performance due to acts of God; acts of Buyer; war (declared or undeclared); terrorism or other criminal conduct; fire; flood; weather; sabotage; strikes, or labor or civil disturbances; pandemics or epidemics, governmental requests, restrictions, laws, regulations, orders, omissions or actions; unavailability of, or delays in, utilities or transportation; default of suppliers or other inability to obtain necessary materials; embargoes or any other events or causes beyond Seller’s reasonable control (each, a “Force Majeure Event”). Deliveries or other performance may be suspended for an appropriate period of time or canceled by Seller upon notice to Buyer in the event of a Force Majeure Event, but the remainder of the Agreement will otherwise remain unaffected as a result of the Force Majeure Event. If Seller determines that the total demand for Products is hindered, limited or made impracticable due to a Force Majeure Event, Seller may delay delivery of Products and allocate its available supply of Products (without obligation to acquire other supplies of any such Products) among its customers on such basis as Seller determines to be equitable without liability for any failure of performance. In the event of a Force Majeure Event, the date of delivery will be extended by a period equal to the delay plus a reasonable time to resume production.

10. Laws and Regulations. Compliance with any federal, state, provincial or local laws, regulations and directives (“Laws”) relating to the installation, operation or use of Products is the sole responsibility of Buyer. In addition, Buyer shall comply with all applicable laws, rules, regulations and orders related to anti-bribery or anti-corruption legislation (including without limitation the U.S. Foreign Corrupt Practices Act of 1977 and all national, state, provincial or territorial anti-bribery and anticorruption statutes) and, as such, will make no offer, payment or gift, will not promise to pay or give, and will not authorize, directly or indirectly, the promise or payment of, any money or anything of value to any government official, any political party or its officials, or any person while knowing or having reason to know that all or a portion of such money or item of value will be offered, given or promised for the purpose of influencing any decision or act to assist Seller or Buyer or otherwise obtaining any improper advantage or benefit.

11. Inventions and Information. Seller owns all right, title and interest in any inventions, developments, improvements or modifications of or for Products. Any designs, manufacturing drawings or other information submitted to Buyer remain the exclusive property of Seller. Buyer shall not, without Seller’s prior written consent, copy such information or disclose such information to a third party. Such information shall be used solely for the operation or maintenance of the Products to which it pertains and not for any other purpose. Products may not be duplicated, in whole or in part, except by Seller.

12. Marketing Materials. Subject to and in accordance with the terms and conditions of this Agreement, to the extent that any of the Products include marketing or other promotional or informational materials containing any trademark, tradename or service mark of Seller or its affiliates (collectively, “Trademarks”), Seller grants Buyer a limited, non-transferable, non-sublicensable, non-exclusive license to use the Trademarks, until such license is revoked by Seller in its sole discretion, solely in connection with the display of the Products to Buyer’s customers, clients and patients, as applicable, for the promotion of the services of Seller and the other Products of Seller in Buyer’s offices, websites and/or social media webpages, advertisements and profiles. Buyer may not use the Trademarks as part of, or in connection with, Buyer’s own business or entity name, trademarks, trade names or service marks. Buyer may not use the Trademarks on letterhead, business cards, signage or its proprietary sales or promotional materials in any manner that could reasonably create confusion regarding the relationship of the parties or the illusion that the parties are affiliates. Buyer shall only be permitted to use the limited license set forth in this Section 12 upon receipt of an email from Buyer with access and credentials to the eStore and only for the period that Buyer maintains valid access and credentials to the eStore or unless otherwise revoked in writing by Seller. Buyer hereby acknowledges that the Trademarks are the exclusive property of Seller. Nothing in this Agreement shall confer on Buyer an ownership interest in the Trademarks or any other intellectual property owned by Seller. Buyer shall notify Seller immediately if it becomes aware of any use of the Trademarks, which may infringe upon Seller’s rights and shall cooperate at Seller’s expense in any prosecution of such third party infringement. Seller may from time to time, in its sole discretion, provide Buyer with updated materials, specifications and documentation regarding the Products, some of which may be supplied free-of-charge or be available for purchase by Buyer via the eStore.

13. Export Control. Certain Products may be subject to export controls under the Laws of the US and other countries. Buyer must comply with all such Laws and not export, re-export or transfer, directly or indirectly, any such Product except in compliance with such Laws.

14. No Resale. Buyer is expressly prohibited from reselling any Products absent the prior written consent of Seller. In the event that Seller does provide such prior written consent to resell any Products, the sale terms must limit Seller’s liability to Buyer’s purchaser to the same extent that Seller’s liability to Buyer is limited hereunder and Seller’s aggregate liability to both Buyer and its purchaser shall not exceed the amounts and remedies specified in the Agreement.

15. Data Privacy. The InMode Privacy Policy, available at https://inmodemd.com/privacy-policy/, governs the processing of all personal data collected from Buyer in connection with Buyer’s purchase or download of Products hereunder, including any Products made available free of charge.

16. Assignment. Buyer shall not assign its rights or delegate its duties under this Agreement or any interest therein without the prior written consent of Seller, and any such assignment, without such consent, is void.

17. Governing Law; Venue. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision. The United Nations Convention on Contracts for the International Sale of Goods does not apply. Any legal suit, dispute, claim, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby (a “Dispute”) shall be governed by this Section 17. All Disputes shall first be submitted to non-binding mediation and the parties agree to negotiate in good faith to resolve such Dispute before a mediator in accordance with the American Arbitration Association Commercial Mediation Rules (the “Mediation Procedures”), provided, however, any applications for a temporary restraining order, preliminary injunction, permanent injunction or other equitable relief may be submitted or instituted directly in a court of competent jurisdiction. To the extent that the Mediation Procedures and this Agreement are in conflict, the terms of this Agreement shall control. The mediation shall take place in Orange County, California. If the Dispute is not resolved following sixty (60) days from the initiation of mediation, then either party may submit the Dispute for resolution by instituting a legal suit, action or proceeding exclusively in the federal courts of the United States of America or the courts of the State of Delaware in each case located in the City of Wilmington, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such Dispute. The party prevailing in such Dispute shall be entitled to recover its fees and costs, including the reasonable attorneys’ fees and attorneys’ costs, incurred by the prevailing party, in addition to any other relief to which such party may be entitled.

18. No Third Party Beneficiaries. This Agreement does not and is not intended to confer any rights or remedies upon any other person or entity other than Seller and its affiliates and Buyer.

19. Severability. If any provision of this Agreement is invalid, illegal, void or unenforceable, then that provision will be severed from this Agreement and will not affect the validity or enforceability of the remaining provisions of this Agreement.

20. General Provisions. The Agreement constitutes the entire agreement between the parties and supersedes all other communications between the parties relating to the subject matter of the Agreement. No conditions, usage or trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, reject, or supplement the Agreement shall be binding unless made in writing and signed by both parties, expressly and specifically referencing the Agreement, and no modification or objection shall be caused by Seller’s receipt, acknowledgment, or acceptance of online purchase orders, shipping instruction forms, or other documentation containing different or additional terms to those set forth herein. No waiver by either party with respect to any breach or default or of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver is expressed in a writing signed by both parties, specifically referencing the Agreement. All typographical or clerical errors made by Seller in any quotation, acknowledgment or publication are subject to correction. Amendments and modifications to this Agreement will be effective only if written and signed by duly authorized representatives of both parties. All notices or other communications required or permitted under the Agreement must be in writing and will be deemed to have been sufficiently given when delivered in person (with written confirmation of receipt), on the second business day after mailing via a responsible international courier, on the date sent by email, electronic facsimile transmission or other direct human-readable electronic means (with confirmation of transmission) if sent during normal business hours of the recipient, or on the fifth business day after mailing by first class registered or certified mail, postage prepaid, to the address as either party may specify from time to time in writing or as electronically transmitted or posted on the eStore.