Product Terms & Conditions

THESE PRODUCT TERMS AND CONDITIONS (the “Agreement”) ARE ENTERED INTO BETWEEN BLUEWAVE TECHNOLOGIES, INC. (“BLUEWAVE”) AND THE LEGAL ENTITY THAT PURCHASED A BLUEWAVE PRODUCT (DEFINED BELOW) (SUCH ENTITY, “CUSTOMER”) ON WHOSE BEHALF THE ULTIMATEEND-USER WILL USE THE BLUEWAVE PRODUCT(S). THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN BLUEWAVE AND CUSTOMER.BY PLACING AN ORDER FOR, ACCESSING OR USING THE BLUEWAVE PRODUCT(S), CUSTOMER AGREES THAT CUSTOMER HAS READ AND UNDERSTOOD, AND, AS A CONDITION TO CUSTOMER’S USE OF THE DEVICE, CUSTOMER AGREES TO BE BOUND BY, THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, THEN CUSTOMER DOES NOT HAVE PERMISSION TO USE THE BLUEWAVE PRODUCT(S). The BLUEWAVE Device (“Device”) is and ozone vacuum-infusion device intended to be effective at killing SARS-CoV-2 (the virus that causes COVID-19) when used in accordance with its labeled instructions for use on the Super Cycle setting. It is indicated for use on non-critical instruments and surfaces that only contact intact human skin such as prostheses and orthoses, as well as blood pressure cuffs, stethoscopes, and patient clothing.* Anticipated efficacy against SARS-CoV-2 is supported by test results demonstrating that BLUEWAVE is effective at killingmethicillin-resistant Staphylococcus aureus and MS2 bacteriophage.** The Device is available for the intended use stated above per FDA’s Enforcement Policy for Sterilizers, Disinfectant Devices, and Air Purifiers During the Coronavirus Disease 2019 (COVID-19) Public Health Emergency dated March, 2020. This device has not been formally cleared for this indication under a 510(k) notification (21 CFR 807). Consumable components that work in conjunction with the Device include: a Filter Cartridge to remove excess ozone after treatment, optional Scent Cartridges to infuse items with aromatics, an Extension Port Adapter, and treatment bags with appropriate diffuser attachments (collectively “Consumables”). The Device and Consumables are collectively and severally referred to in this Agreement as BLUEWAVE Product(s).* Low level disinfection of the SARS-CoV-2 virus is expected when used in accordance with instructions for use. ** In laboratory testing, BLUEWAVE achieved a > 6-log10 reduction versus methicillin-resistant Staphylococcus aureus ATCC 33591 (MRSA) on hard, non-porous stainless steel carriers and soft, porous polyester fabric. A > 3-log10 reduction was observed versus MS2 bacteriophage on hard, non-porous stainless steel carriers and soft, porous polyester fabric. Both MRSA and MS2 are expected to be more resistant to germicides than the SARS-CoV-2 virus per guidance provided in FDA’s Enforcement Policy for Sterilizers, Disinfectant Devices, and Air Purifiers During the Coronavirus Disease 2019 (COVID-19) Public Health Emergency dated March, 2020.1.INITIAL TRAINING REQUIREMENTCustomer will participate in an initial training session in one of the following formats: in-person, by video call, or by logging in and viewing the training videos on BLUEWAVE’s website. The format will be determined at BLUEWAVE’s sole discretion after consultation with Customer.2.USE OF DEVICE AND CONSUMABLESCustomer will only use the Device and Consumables as described in the Terms of Use (Appendix A). 3.NOTIFICATION BY CUSTOMER OF DEVICE MALFUNCTIONIf the Device stops working properly, for example Customer smells ozone during a treatment cycle, Customer will unplug the Device immediately, and notify BLUEWAVE of the malfunction via phone (352-474-5489) or email support.mybluewave.com as soon as is reasonably possible. 4.WARRANTY ON PARTS AND LABORBLUEWAVE warrants to Customer that the BLUEWAVE Products will be free from material defects in materials and workmanship under normal authorized use consistent with the Initial Training and the Terms of Use(Appendix A) (collectively “Instructions for Use”) for a period of twelve (12) months from the date of shipment from BLUEWAVE (the “BLUEWAVE Warranty Period”). If the BLUEWAVE Products proves defective under the foregoing warranty during the BLUEWAVE Warranty Period, Customer must notify BLUEWAVE in writing within 30 days of when Customer becomes aware or reasonably should have become aware of the defect. BLUEWAVE, at its option, will either (i) repair the defective BLUEWAVE Product(s) without charge for parts and labor or (ii) provide a replacement in exchange for the defective Device. The BLUEWAVE Products, replacement parts and components may include materials that are reconditioned. During the warranty period, BLUEWAVE’s liability and Customer’s exclusive remedy is limited, at BLUEWAVE’s option, to replacing, repairing, correcting, or issuing credit for any BLUEWAVE Product subject to the warranty, which upon inspection BLUEWAVE determines is non-conforming. This Warranty does not apply to (a) BLUEWAVE Products purchased from unauthorized resellers; (b) where a BLUEWAVE Product is used contrary to Instructions for Use; or (c) where a BLUEWAVE Product is damaged as a result of abuse, accident, unauthorized modification or other causes beyond BLUEWAVE’s reasonable control.Complete instructions for safe and proper use may be accessed by registering and logging in to the member portal at mybluewave.com.After the BLUEWAVE Warranty Period expires, BLUEWAVE may, at its discretion, repair or replace the BLUEWAVEProducts at Customer's expense for parts, labor, processing and shipping. Additional protection may be obtained by purchasing a Pro Service Plan (ask distributor or go to mybluewave.com and login for details). TO THE FULLEST EXTENT PERMITTED BY APPLICABLELAW, AND EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE IN THIS SECTION 4, NEITHER PARTY MAKES ANY WARRANTIES WHATSOEVER IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.5.PROHIBITION OF DISASSEMBLY AND REVERSE ENGINEERINGCustomer will not disassemble or reverse engineer any parts of the BLUEWAVE device or accessories, or facilitate or permit third parties to do so.6.PROHIBITION OF TRANSFER TO THIRD PARTIESCustomer will not sell or transfer the Device in any way to any third party without the written consent of BLUEWAVE.7.INDEMNIFICATION AND RELEASE OF CLAIMSCustomer is solely liable and responsible for harm that arises out of use of the Device that does not comply with the Initial Training or the Terms of Use (Appendix A). Customer will indemnify, defend, and hold harmless BLUEWAVE against any and all losses, damages, and reasonable costs and expenses incurred in connection with any third party claim, demand, action, proceeding, investigation, or hearing resulting from Customer’s (i) negligence, gross negligence or intentional misconduct; or (ii) failure of Customer to adhere to the Terms of Use. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: IN NO EVENT SHALL BLUEWAVE’S AND ITS AFFILIATES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL THE AMOUNT PAID BY CUSTOMER FOR THE BLUEWAVE PRODUCTS INVOLVED IN THE DISPUTE; AND, IN NO EVENT SHALL BLUEWAVE OR ANY OF ITS AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF (a) WHETHER SUCH DAMAGES WERE FORESEEABLE, (b) WHETHER OR NOT BLUEWAVE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (c) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (d) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.8.CONFIDENTIALITYCustomer will treat communications regarding the Device development and BLUEWAVE’s business development as confidential unless otherwise notified by BLUEWAVE. Customer will use the same efforts to protect BLUEWAVE’s confidential information from loss or alteration, and unauthorized access, use or disclosure, that it uses to protect its own confidential information of similar sensitivity, but in no event will such efforts be less than reasonable efforts. 9.OWNERSHIP OF INTELLECTUAL PROPERTYCustomer acknowledges and agrees that: (a) as between the Parties, Bluewave solely owns all intellectual property rights in and to the Products; (b) Customer will not acquire any ownership interest in any such intellectual rights under this Agreement; (c) if Customer acquires any intellectual property rights in or to any Products (including any rights in any patent improvements relating thereto) by operation of law or otherwise such rights are hereby irrevocably assigned to Bluewave without any further consideration due to Bluewave; and (d) except for Customer’s right to use the BLUEWAVE Products in accordance with this Agreement,and certain limitedlicenses granted, in writing, by BLUEWAVE to Customer to use BLUEWAVE’s trademarked or copyrighted material in connection with promotional materials advertising Customer’s use of BLUEWAVE Products, the sale ofBLUEWAVEProducts does not grant to, convey or confer upon Customer or any Third Party any rights or licenses, whether express or implied, under any patent right, copyright or other intellectual property rightof Bluewave. Customer will not take any action that reasonably could be expected to challenge, undermine or otherwise interfere with any of Bluewave’s intellectual property rights in or to the Products. 10.SEVERABILITYIf any term or provision of this Agreement is deemed unenforceable by a court of competent jurisdiction, such unenforceability will not affect any other term or provision of this Agreement. Upon a determination that any term or provision is unenforceable by any court of competent jurisdiction, the court may modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.11.NO CONSTRUCTION AGAINST DRAFTERBecause this Agreement is intended to provide a simplified description of the duties of both parties, the provisions of this agreement shall be construed in accordance with the fair meaning of the language used and shall not be strictly construed against either party.12.GOVERNING LAWThis Agreement will be governed in all respects by the laws of the State of Delaware, United States of America without regard to its conflict of laws principles. 13.COMPLETE AGREEMENTThis Agreement, including all exhibits attached hereto, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. If there is any conflict or inconsistency between this Agreement and any exhibit attached hereto, the Agreement will control to the extent of the conflict or inconsistency. APPENDIX A: TERMS OF USEFOR THESE TERMS OF USE, “CUSTOMER” INCLUDES BOTH CUSTOMER AND CUSTOMER’S EMPLOYEES AND AGENTS. THESE TERMS OF USE MAY BE UPDATED BY BLUEWAVE AT ITS SOLE DISCRETION TO IMPROVE SAFETY AND EFFICACY. 1.Customer will follow all directions in the Initial Setup Guide provided in this package.2.Customer will ensure that only Customer and employees or agents of Customer will use the Device. Customer will ensure that anyone who uses the device has participated in a training session with BLUEWAVE. 3.Customer will only use the Device according to these Terms of Use, the Initial Training, Instructions for Use, and video tutorials. Detailed Instructions for Use and video tutorials may be found by logging in to the customer portal at www.mybluewave.com. 4.Customer will never attempt to dismantle, take apart, repair, or otherwise manipulate the affixed components of the Device other than to replace the filter cartridges, scent cartridges or treatment bags in accordance with the training session conducted by BLUEWAVE.5.Customer will never put flammable material or vapors (e.g., rubbing alcohol, solvents) into the BLUEWAVE or run the BLUEWAVE within six feet such materials or vapors.6.Customer will not put any wet or damp items in the Device.7.The Device is heavy and has some components that may break or malfunction if mishandled. Customer will exercise all reasonable care when handling, using or transporting the Device, and will hold BLUEWAVE harmless and indemnify BLUEWAVE from any claims arising out of handling, using, lifting or carrying the BLUEWAVE.8.Customer will only use treatment bags supplied by BLUEWAVE and, unless otherwise agreed in writing, Customer will not use the same bag to treat items belonging to different patients.9.Prior to treatment, be sure to remove any debris and gross particulate matter including sweat, blood, dirt, skin buildup, and the like. Damp items should be dried prior to treatment. Wet materials cannot be treated because the vacuum pressure will suck moisture into the machine and damage it.10.Customer will only use the BLUEWAVE on the following items*:Cranial Helmets, AFOs, Small Braces, Walking Boots, Shoe Inserts, Prosthetic Liners, BK/Pediatric Sockets *Additional items may be added by mutual agreement of the parties.11.Because the items treated are comprised of so many materials and components and BLUEWAVE cannot reasonably examine each prior to treatment, to the fullest extent permitted by applicable law, Customer will indemnify and hold BLUEWAVE harmless for damage to items treated in the Device.IMPORTANT NOTE: For rigid items that form a hollow cavity, slack in the treatment bag must be pushed into the cavity before starting treatment. DO NOT USE ON ITEMS WITH ELECTRICAL COMPONENTS OR CIRCUITRY,OR ON ITEMS THAT USE PNEUMATICS.