Exhibit 10.5
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V I S X 3400 Central Expressway
WE MAKE THINGS CLEAR Santa Clara, CA 95051-0703 sales agreement
Tel: (408) 733-2020
FAX: (408) 773-7055
BILL TO: Lasik America, Inc. SHIP TO: Lasik America, Inc.
"Buyer" 6644 Indian School Rd. NE 6644 Indian School Rd. NE
Albuquerque, NM 87110 Albuquerque, NM 87110
Telephone No. 505-837-2020 Telephone No. 505-837-2020
Contact: Robert Helmer Contact: Robert Helmer
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DATE |SHIP VIA| F.O.B. | PAYMENT TERMS|ESTIMATED DELIVERY DATE
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| |Destination - Charge Back| Net 30 |
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QUANTITY |ITEM NO.| PRODUCT DESCRIPTION "PRODUCT"| UNIT COST | EXTENDED COST
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| | VISX VisionKey(R)Cards | $10.00 |
All taxes| | S/N 3095 |(plus |
Shipping,| | | applicable |
and | | | licensefee) |
Insurance| | | Subtotal:|
are the | | |Less Deposit:|
Buyer's | | | Tax:|
respons- | | |Shipping/Ins:|
ibility | | | TOTAL:|
| | | |
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SALES TAX STATUS:
Goods are being purchased for resale: Yes X No (check one).
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If yes, resale certificate # Applied for 5/10/01 (please attach copy as
required). -------------------------
Purchaser of goods being purchased is exempt
from sales tax: Yes No (check one).
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If yes, please state basis and provide exemption certificate as appropriate.
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CAUTION: THE VISX STAR EXCIMER LASER SYSTEM (T M) (THE "SYSTEM) MAY ONLY BE USED
IN THE UNITED STATES BY EYE CARE PRACTIONERS WHO HAVE BEEN TRAINED IN THE
SYSTEM'S CALIBRATION AND OPERATION AND WHO HAVE EXPERIENCE IN THE SURGICAL
MANAGEMENT AND TREATMENT OF THE CORNEA. THE SYSTEM MAY ONLY BE USED IN THE
UNITED STATES FOR PERFORMING INDICATIONS APPROVED BY THE UNITED STATES FOOD AND
DRUG ADMINISTRATON, AS DESCRIBED IN THE VISX OPERATOR'S MANUALS. USE OF THE
SYSTEM FOR ANY OTHER PROCEDURE IS INVESTIGATIONAL.
USE OF THE SYSTEM IS PROHIBITED IN THE ABSENCE OF A VALID VISX PATENT LICENSE.
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VISX RESERVES THE RIGHT TO REJECT ALL ORDERS PRIOR TO SHIPMENT IN ITS SOLE
DEISCRETION. THE SALE OF THE PRODUCTS IS GOVERNED BY THIS SALES AGREEMENT WITH
THE ATTACHED TERMS AND CONDITIONS. NO TERM OR CONDITION CONTAINED IN THE BUYER'S
PURCHASE ORDER (OTHER THAN SHIPPING DESTINATION) SHALL APPLY AND VISX HEREBY
OBJECTS TO ANY SUCH TERM OR CONDITION.
ACCEPTED: AGREED:
VISX, INCORPORATED BUYER
I am authorized to sign this Sales
Agreement on Buyer's behalf.
/s/ Robert S. Helmer
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By: Print Name: Robert S. Helmer
Title: Print Title: Chief Operating Officer
Date: Print Date: 5/10/01
Terms and Conditions attached
TERMS AND CONDITIONS OF SALE FOR VISX PRODUCTS
Purchase. Subject to these Terms and conditions. Buyer agrees to purchase and
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VISX agrees to sell the Products described on the front page of these Terms and
Conditions, provided that VISX retains title to the VisionKey card data and all
copyrights, trade secret rights and other intellectual property rights. All
sales, use, and other taxes and charges that VISX may be required to pay or
collect with respect to the Products covered by this Agreement shall be charged
to the Buyer.
Restrictions. Use of the VISX Excimer Laser System (T M) (the "System) and the
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Vision Key cards is subject to Buyer's agreement to the terms of the separate
VISX Patent License (the "License Agreement"). The License Agreement must be
executed by Buyer prior to installation of the System. Sale of the Products
alone shall in no way be construed as an implied license to perform procedures
using the System, nor does sale of Products convey any license, expressly or by
implication, to manufacture, duplicate or otherwise copy or reproduce any of the
Products. Buyer man not assign or otherwise transfer this Agreement or any of
its rights or obligations hereunder. Buyer is prohibited from tampering with or
attempting to reverse engineer the VisionKey card or any device or software
installed on the System for the purpose of monitoring the number of Licensed
Procedures performed. MODIFYING OR ALTERING THE SYSTEM, THE SOFTWARE IN THE
SYSTEM, THE VISIONKEY CARD OR THE CARD READING MECHANISM IN ANY WAY CONSTITUTES
WILLFUL INFRINGEMENT OF VISX'S INTELLECTUALPROPERTY AND MAY ENDANGER PATIENT
SAFETY AND COSMETIC ACT AND COULD SUBJECT THE BUYER AND/OR THE AUTHORIZED USERS
TO ACTION BY THE FDA RESUTING IN SEIZURE, INJUNCTION, CIVIL PENALTIES, AND/OR
CRIMINAL PROSECUTION.
Security Interest. Buyer hereby grants to VISX a security interest in all of its
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right and interest, now or in the future,in and to the System and all additions,
accessions, and upgrades to the System to secure performance of the Buyer's
obligations under the License Agreement, including the obligation to pay the
fees associated with performance of Licensed Procedures. Buyer agrees to execute
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any documents as reasonably requested by VISX to perfect and enforce its rights.
Buyer understands that if it breaches any obligation in the License Agreement,
VISX will be entitled to disable or take possession of the System without
notice.
Downpayment and Cancellation. If Buyer cancels delivery prior to shipment of the
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Products, any downpayment paid by Buyer shall be non-refundable.
Delivery. VISX shall use reasonable efforts to deliver the Products on the date
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specified on the front of these Terms and Conditions. Risk of loss of or damage
to the Products shall pass to Buyer upon delivery to the Buyer's location set
forth under "Ship To" on the front page of these Terms and Conditions. Buyer
shall obtain and maintain at its own expense insurance against loss of or damage
to the System, and public liability and property damage insurance, for the
period beginning on the date of delivery to Buyer's location and ending on the
date full payment for the System is made. VISX reserves title to all Products
until full payment has been received, except that title to VisionKey card data
remains in VISX. Shipping, delivery and installation dates are approximate and
are based upon prompt receipt of all necessary information. VISX will not be
liable for failure to ship products in connection with governmental order,
strikes, floods, fires, earthquakes, and other causes reasonably beyond VISX's
control, including inability to obtain labor or materials or other production
delays, in which case VISX may postpone delivery, shipment, or installation at
its option without liability.
Installation and Acceptance. VISX will install the System at Buyer's facility
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and shall complete the items required by VISX's standard installation checklist.
Upon successful completion of the items on the installation checklist. Buyer
will sign the delivery and acceptance form acknowledging acceptance of the
System.
Buyer's Remedies. In the event of a breach by VISX of any of the terms,
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provisions, or warranties under this contract, or a violation of any
representation made in this Agreement. VISX's sole and exclusive liability and
Buyer's sole and exclusive remedy shall be limited at VISX's option to either
(a) repair or replacement of any goods which are the subject of any such breach,
default or violation, or (b) refund of the purchase price of such goods. EXCEPT
AS SET FORTH IN THE ATTACHED "TERMS OF WARRANTY OF VISX EXCIMER LASER SYSTEM,"
ALL WARRANTIES OF ANY NATURE, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED AND
DISCLAIMED.
Training. VISX will provide Buyer with initial system operator and physician
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training as specified by the Food and Drug Administration, not to exceed five
(5) physicians per System; training for additional system operators and
physicians will be provided at VISX's standard charges. VISX will notify Buyer
of any further training that may be required in the future to comply with FDA
requirements of VISX licensing policies.
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Governing Law. This Agreement shall be governed by and construed under the laws
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of the State of California without regard to conflict of law principles. Buyer
consents to the jurisdiction of the federal and state courts in California and
agrees that venue shall lie exclusively in Santa Clara County, California.
Arbitration. Any controversy or claim arising out of or relating to this Sales
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Agreement, or the beach thereof, shall be finally settled by binding arbitration
in Santa Clara County, California under the Commercial Arbitration Rules of the
American Arbitration Association by one arbitrator appointed in accordance with
such Rules; provided, however, that neither party shall be precluded from
seeking injunctive relief in a court of law. Judgment on the award rendered by
the arbitrator may be entered in any court having jurisdiction thereof.
Entire Agreement; No Modification. This writing together with the License
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Agreement is intended by VISX and Buyer as a final expression of their agreement
and as a complete and exclusive statement of the terms of their agreement. No
course of Prior dealings between the parties and no usage of the trade shall be
relevant to supplement or explain any term used in this Agreement. No
modification of or amendment to this Agreement, nor any waiver of any rights
under this Agreement, shall be effective unless in writing signed by the party
to be charged.
Limitation Period. No suit or legal proceeding arising under the terms,
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conditions, and warranty provisions of this Sales Agreement shall in any case be
maintainable against VISX unless commenced or made against VISX within one year
after the expiration of the applicable warranty period, and the lapse of such
period shall be a complete bar to any recovery in any such suit or proceeding.
Severability of Terms. If any term or condition (or part thereof) contained
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herein is held to be invalid, the remaining terms and conditions of this Sales
Agreement shall not be affected thereby.
TERMS OF WARRANTY OF VISX EXCIMER LASER SYSTEM
Product Warranty. VISX warrants that, subject to the limitation and disclaimer
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below, the System and VisionKey cards will be free from defects in materials and
workmanship for a period of one year from the date of initial installation of
the System when properly installed, maintained, and used for its intended
purpose. During the warranty period VISX will, at its option, either repair or
replace any equipment that does not conform with the foregoing warranty or
refund the purchase price.
Warranty Repair. Before returning any Product to VISX Buyer shall first obtain
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return material authorization from the VISX Service Department. The Returned
Material Authorization Number issued by VISX must be noted on the outside of the
shipping container. VISX DISCLAIMS ALL LIABILITY WITH RESPECT TO DATA CONTAINED
IN ANY PRODUCT RETURNED FOR REPAIR.
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Limitations. This warranty applies only to the end user who is the original
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purchaser of the Product, and only so long as the Product is used in the country
to which it was originally shipped by VISX. This warranty will not apply to any
Product that has been subjected to improper operation, unauthorized repair or
modification of hardware or software, or operation outside of the environmental
specifications of the Product. This warranty is null and void if the user
attempts to service or repair the Products (other than performing the
maintenance described in the operator and technical manuals), or if service is
performed by persons who are neither trained nor certified by VISX. TAMPERING
WITH THE VISIONKEY CARD OR THE SYSTEM'S CARD READER INSTALLED IN THE SYSTEM WILL
AUTOMATICALLY VOID THIS WARRANTY.
Disclaimer. EXCEPT AS SET FORTH HEREIN, ALL WARRANTIES OF ANY NATURE, EXPRESSOR
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IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, ARE EXPRESSLY EXCLUDED AND DISCLAIMED. THE FOREGOING WARRANTIES ARE
EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE. VISX DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE
UNINTERRUPTED OR ERROR FREE.
Service Contract. VISX offers repair and maintenance services beyond the
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warranty period under a separate service contract. Any out-of-warranty repair
services provided to Buyer without a service contract shall be paid for by Buyer
at VISX's standard charges.
Limitation of Liability. VISX WILL NOT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL,
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INDIRECT OR SPECIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DAMAGES
FOR LOSS OF REVENUE, LOSS OF DATA, LOSS OF BUSINESS OR BUSINESS OPPORTUNITY OR
OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECITON WITH THE SALE,
INSTALLATION, PERFORMANCE, FAILURE, USE OR INTERRUPTED USE OF ITS PORDUCTS, OR
THE UNAUTHORIZED USE OF THE PRODUCTS. VISX'S LIABILITY FOR ANY LOSS OR DAMAGE
ARISING OUT OF OR RESULTING FROM THIS AGREEMENT OR ITS PERFORMANCE OR BREACH, OR
IN CONNECTION WITH THE PRODUCTS FURNISHED HEREUNDER, WILL IN NO CASE EXCEED THE
PRICE OF THE SPECIFIC PRODUCT WHICH GIVES RISE TO THE CLAIM.
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