The sole warranty regarding the Software and related materials is that the original disk is free from physical defects in material and workmanship, assuming proper use, for a period of one year from date of purchase. If such defect occurs during this period, you may return your faulty disk to Miridia Technology Inc., (Miridia) along with a dated proof of purchase; Miridia will replace it free of charge. After one year, a replacement disc will require a nominal fee.
The sole warranty regarding the AcuGraph probe and probe controller is that they are free from physical defects in material and workmanship, assuming proper use, for a period of one year from date of purchase. If such defect occurs during this period, you may return your faulty probe to Miridia Technology Inc., (Miridia) along with a dated proof of purchase; Miridia will replace it free of charge. After one year, a replacement probe will require a fee.
Your sole and exclusive remedy for any breach of representation or warranty is that Miridia, at its option, either (a) will refund your payment for the software and probe upon your return of the software and probe, with a copy of your receipt, or (b) will replace it on an exchange basis without charge (except as provided above).
EXCEPT FOR THE EXPRESS WARRANTY SET FORTH ABOVE, THIS SOFTWARE AND HARDWARE ARE PROVIDED “AS-IS,” AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MIRIDIA DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, REGARDING THE SOFTWARE, DISK, AND RELATED MATERIALS, PROBE HARDWARE, PROBE CONTROLLER, CABLES, CONNECTORS, OR PROCESSOR, INCLUDING THEIR FITNESS FOR A PARTICULAR PURPOSE, THEIR QUALITY, THEIR MERCHANTABILITY, OR THEIR NONINFRINGEMENT. THE LIABILITY OF LICENSOR UNDER THE WARRANTY SET FORTH ABOVE SHALL BE LIMITED TO THE AMOUNT PAID BY THE CUSTOMER FOR THE PRODUCT. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO 90 DAYS FROM THE DATE OF PURCHASE OF THE SOFTWARE. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
IMPORTANT: YOUR ACUGRAPH UNIT IS NOT A MEDICAL DEVICE. IT HAS NOT BEEN EVALUATED BY THE U.S. FOOD AND DRUG ADMINISTRATION, NOR HAS ANY STATEMENT IN THE USER MANUAL OR SOFTWARE BEEN EVALUATED BY THE U.S. FOOD AND DRUG ADMINISTRATION. THE ACUGRAPH DIGITAL MERIDIAN IMAGING HARDWARE AND SOFTWARE ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE. THIS EQUIPMENT IS FOR EXPERIMENTAL OR INVESTIGATIONAL USE ONLY, AND DOES NOT TAKE THE PLACE OF PROPER DIAGNOSIS AND TREATMENT BY A LICENSED HEALTHCARE PROFESSIONAL.
Miridia has no control over your use of the Software and Hardware. Miridia does not and cannot warrant the performance or results that may be obtained by its use. Miridia does not represent, warrant, or guarantee the accuracy and timeliness of the data contained in the Software and Miridia shall have no liability of any kind whatsoever to you, or to any other party, on account of any inaccuracies in or untimeliness of the data, or for any delay in reporting such data contained in the Software. Various information in the Software constantly changes, and the information in the Software is only as of a particular date. Miridia does not warrant that the operation of the Software will be uninterrupted or error free. Miridia is not responsible for problems caused by accident, abuse, mishandling, alteration, or improper use. Licensor does not warrant or guarantee the suitability of the Software or Probe, or that either will meet your requirements.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MIRIDIA AND ITS SUPPLIERS WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF MIRIDIA OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. MIRIDIA’S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THIS PRODUCT. SOME STATES DO NOT ALLOW THE LIMITATION OF EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
The limitations of damages set forth above are fundamental elements of the basis of the bargain between Miridia and you. Miridia would not be able to provide this product on an economic basis without such limitations.
You acknowledge that, in providing you with the Software and Hardware, Miridia has relied upon your agreement to be bound by the terms of this Agreement. You further acknowledge that you have read, understood, and agreed to be bound by the terms of this Agreement, and hereby reaffirm your acceptance of those terms. You further acknowledge that this Agreement, together with the stipulations contained in the software license, constitute the complete statement of the agreement between you and Miridia, and that the Agreement does not include any other prior or contemporaneous promises, representations, or descriptions regarding the Software or Hardware. This Agreement is not, however to limit any rights that Miridia may have under trade secret, copyright, patent, or other laws that may be available to it. The agents, employees, distributors, and dealers of Miridia are not authorized to make modifications to this Agreement, or to make any additional representations, commitments, or warranties binding on Miridia. Accordingly, additional statements such as dealer or other advertising or presentations, whether oral or written, do not constitute representations or warranties by Miridia and should not be relied upon. This Agreement may be modified only in writing. If any provision of this Agreement is invalid or unenforceable under applicable law, it is to that extent, deemed omitted and the remaining provisions will continue in full force and effect. The validity and performance of this Agreement shall be governed by Idaho State law (without reference to choice of law principles), except as to copyright and trademark matters, which are covered by United States Federal laws. This Agreement shall be construed as to its fair meaning and not strictly for or against either party.