Table of contents
- Terms and Conditions of Sale
- Terms and Conditions of Contract
- Heidelberg Engineering Inc. Software License Addendum
Heidelberg Engineering, Inc. Terms and Conditions of Sale
These Terms and Conditions of Sale (“Terms”), along with the information on the front of or attached to these Terms constitutes an agreement (collectively, the “Agreement”) with Heidelberg Engineering (“HEI”) with respect to the purchase of HEI products and services by the purchaser named on the front of or attached to these Terms (“Buyer”) and the sale and delivery of such products and services by HEI. BUYER’S ORDER PURSUANT TO THIS AGREEMENT IS ACCEPTED SOLELY ON THE CONDITION THAT BUYER EXPRESSLY ACCEPTS AND ASSENTS TO THE TERMS AND CONDITIONS CONTAINED HEREIN.
1. Order Acceptance; Agreement to Buy.
Notwithstanding anything else to the contrary, HEI is free to accept or reject purchase orders (each, an “Order”) from Buyer. HEI’s acceptance of an Order shall only occur upon the transmission of a written acceptance therefore by a duly authorized officer or agent of HEI. Accepted Orders can only be cancelled by Buyer upon written consent of HEI. In the event of cancellation or withdrawal of an Order for any reason, and without limitation to HEI’s right to assert any other remedy to which HEI may be entitled, reasonable cancellation or restocking charges, including all expenses and commitments made by HEI, shall be due and immediately paid by Buyer on demand notwithstanding the above. NO TERM OR CONDITION SET FORTH IN BUYER’S ORDER OR IN ANY OF BUYER’S OTHER DOCUMENTS SHALL BECOME PART OF THIS AGREEMENT OR OTHERWISE BECOME BINDING ON HEI UNLESS EXPRESSLY AGREED TO IN WRITING BY HEI.
Any pricing set forth in a purchase quote issued by HEI is valid only for thirty (30) days from the date of the quote. All other pricing for HEI’s products or services is as set forth in HEI’s then-current price list and is exclusive of all packing and cartage costs, sales, use, excise or similar taxes, freight, duties, and applicable charges, which are the sole responsibility of Buyer and which shall be stated separately on HEI’s invoice to Buyer. All sales are considered taxable unless a resale certificate is completed, signed, verified and provided to HEI prior to HEI’s first shipment to Buyer. All taxes and duties are the sole responsibility of Buyer and shall be stated separately on HEI’s invoice to Buyer.
3. Trade-In Credit.
This Agreement may reflect a sales order credit for a trade-in of a third party product (“Trade-In Credit”). The Trade-In Credit is only a proposed credit for the third party product and is only available subject to Buyer’s warranty as follows. Buyer warrants that it owns the third party product subject to the Trade-In Credit and that it will transfer such product to HEI free and clear of any liens, taxes or other encumbrances. The product subject to the Trade-In Credit must be in good, salable, working condition and must be shipped to HEI freight prepaid, FOB destination. Buyer bears all risk of loss for such products until they are received in the required condition by HEI. The Trade-In Credit is voidable by HEI unless (i) HEI is able to secure a purchaser for such product for a value equal to or exceeding the Trade-In Credit within thirty (30) days from the date of HEI’s receipt of the third party product; and (ii) Buyer complies with all provisions of this Agreement, including the timely payment of all amounts due hereunder. To the extent that the Trade-In Credit is voided by HEI as provided above, the amount of the Trade-In Credit shall become immediately due and payable from Buyer. Regardless of the voiding of the Trade-In Credit, Buyer shall not be entitled to the return of the applicable third party equipment, to the extent that HEI has already transferred, destroyed or otherwise disposed of such products. To the extent that Buyer enters into a separate trade-in agreement with HEI the terms and conditions of such agreement shall govern the trade-in process and are hereby fully incorporated into this Agreement.
4. Payment Terms.
Until Buyer is extended credit terms by HEI as indicated on the front of this Agreement, Buyer must pay all amounts for products ordered prior to shipment by HEI. Upon credit being extended to Buyer, payment in full is due for each HEI shipment upon receipt by Buyer unless otherwise stated in HEI’s quotation. If payment is not received by the applicable due date, a late fee of one and one-half percent (1 ½%) per month of the unpaid balance, or the maximum amount allowed by law, whichever is less, shall be due and payable by Buyer. Should Buyer’s financial responsibility and/or credit-worthiness become unsatisfactory to HEI, cash payments or satisfactory security may be required by HEI for future deliveries. Checks are accepted subject to collection. Any check received from Buyer may be applied by HEI against any obligation of Buyer to HEI under this or any other agreement, notwithstanding any statement appearing on or referring to such check. Acceptance of any partial payment shall not constitute a waiver of HEI’s right to payment in full of all amounts owing from Buyer to HEI.
5. Shipment Terms.
All products shall be shipped EXW (INCOTERMS 2010) HEI’s facility, freight collect. All transportation charges shall be paid by Buyer on delivery unless otherwise set forth on the front of this Agreement. Subject to HEI’s right of stoppage in transit, delivery of products to the carrier shall constitute delivery to Buyer and risk of loss shall thereupon pass to Buyer. Choice of carrier, shipping method and route shall be at the election of HEI unless specifically designated by Buyer. HEI may alter or modify any delivery dates set forth in this Agreement upon the occurrence of any event which, in HEI’s sole discretion, makes such delivery impracticable or unreasonable, and Buyer agrees to hold HEI harmless from any claims resulting from such alteration or modification of any delivery date. HEI shall additionally not be liable for delays or damages suffered by Buyer in delivery or for failure to perform due to causes beyond the reasonable control of HEI, including, without limitation, acts of God, acts or omissions of Buyer or civil or military authorities, fire, strikes, epidemics, quarantine restriction, flood, earthquakes, riot, war, terrorism, computer virus, delays in transportation or inability to obtain necessary labor, materials or supplies. HEI shall be entitled to refuse or to delay shipments for failure by Buyer to promptly pay any payments due HEI on this or any other agreement between HEI and Buyer. HEI shall have the right to deliver all products covered hereby in a single lot or multiple lots, within the delivery time provided in such order. Buyer shall pay for storage charges if products are held by HEI at Buyer’s request pending instruction or rescheduled delivery. Unless otherwise agreed upon in writing by HEI, Buyer is responsible for all transportation, insurance, duties and other applicable expenses associated with the shipment.
6. Inspection And Acceptance Of Products.
Products are deemed accepted by Buyer unless Buyer notifies HEI in writing within fifteen (15) days of delivery of product shortages or defects, other than those caused by shipment and/or the common carrier. No returns may be made for any reason without a Return Material Authorization Number (“RMA”) issued by HEI. HEI shall elect to credit the account or replace without charge to Buyer all products which, at the time of delivery, are not in accordance with their manufacturer’s specifications. After notifying HEI of the defects as described above, Buyer must contact HEI to coordinate the return of such products to HEI’s facility within thirty (30) days from date of delivery in original package and condition, and accompanied by a specification in writing of the defects involved. HEI shall be entitled to examine such products at Buyer’s facilities prior to their return. Final inspection as to whether products meet their manufacturer’s specifications shall be made at HEI’s facility, or may be based upon the manufacturer’s actual test report. Other than the foregoing inspection and acceptance provisions, all sales of products are final. Buyer shall have no right to return products or cancel products ordered prior to delivery, without the prior written consent of HEI. Notwithstanding the foregoing, HEI shall not issue a RMA beyond ninety (90) days from the date of delivery to Buyer of the applicable products.
7. Title and Security Interest.
Notwithstanding anything else to the contrary, title to Products shall only pass to Buyer upon payment in full of the amounts due therefor. Until all amounts due for a product are paid in full, HEI retains all right and title to such product and Buyer holds such product as HEI’s bailee. In addition, Buyer hereby grants to HEI a security interest in each unpaid Product and all proceeds thereof (collectively, the “Collateral”) to secure the payment of the purchase price of such unpaid Product and all amounts now or hereafter due from Buyer therefor. Buyer authorizes HEI to file one or more financing statements in all states, counties and other jurisdictions as HEI may elect without Buyer’s signature if permitted by law. Buyer agrees to cooperate fully with HEI in executing any additional documents, instruments, financing statements or amendments thereto as HEI may request to perfect or continue the security interest granted herein. Upon a breach by Buyer of any of its obligations to HEI, HEI shall have all rights and remedies of a secured party under the UCC, which rights and remedies shall be cumulative and not exclusive. Buyer agrees to pay HEI’s reasonable costs and expenses (including but not limited to attorneys’ fees and costs and any fees and costs incurred in connection with a bankruptcy proceeding of or involving Buyer or Collateral) incurred to collect any amount unpaid or to enforce HEI’s other rights and remedies, whether or not suit is commenced.
Any HEI proprietary software product covered by this Agreement is licensed, not sold, to Buyer. (Buyer is buying the license to use the software, not the software itself.) HEI hereby grants Buyer a non-exclusive license to use any HEI software product covered by this Agreement with the associated Products sold by HEI. Buyer shall not make any copies of the software, other than back-up or archival copies. Buyer shall not modify, alter, adapt, merge, decompile, disassemble or reverse engineer the software. No transfer of the license to use HEI software is permitted without the consent of HEI. In no event is Buyer permitted to grant any sublicense to use HEI software to a third party or otherwise make HEI software or the use of HEI software available to any other person without the written consent of HEI. All licenses to use HEI software are perpetual, except that HEI reserves the right to terminate any license if Buyer breaches the license terms described in this Agreement. HEI assumes no obligation to provide any updates or upgrades to its software. If HEI does make a significant software update or upgrade available that according to HEI’s records is relevant to Buyer, HEI will make reasonable efforts to notify Buyer of the existence of the update or upgrade and to make the update or upgrade available to Buyer. In general, HEI does not charge for updates but provides upgrades at a charge. However, HEI reserves the right to charge for significant updates. Any software product that is proprietary to a third party supplier and covered by this Agreement is provided to Buyer subject to the terms and conditions established by the third party supplier.
9. Installation and Training.
If installation and/or training services are provided for with respect to instruments on this Agreement, these services will be scheduled at the mutual convenience of Buyer and HEI as soon as possible after Buyer has received the products. Any training commitments expire and become void upon the lapse of the three (3) month period after delivery of the corresponding HEI instrument.
HEI warrants to the Buyer that, for a twelve (12) month period starting on the date of Buyer’s receipt of the products and/or software (the “warranty period”), (i) the HEI proprietary products covered by this Agreement will be free from material defects in materials and workmanship; and (ii) the HEI proprietary software covered by this Agreement will materially comply with its then-current documentation as published by HEI. During the warranty period, HEI will, at its discretion either at an authorized service center or on site, repair or replace the necessary components, parts or subassemblies necessary to correct material defects in materials and workmanship in the products and/or any failure of the software to materially comply with its documentation or, if for any reason HEI determines that it is unable to correct any such defect, accept the return of the products and/or software covered by this Agreement and refund the purchase price paid by Buyer. This warranty does not apply to damages caused by the following: accidents, acts of God, misuse, alterations, repairs or modifications not performed by an authorized HEI representative, the failure to maintain a suitable installation environment (including electrical power, humidity control, temperature control, space, and computer platform and capacity), relocation, the use of supplies, materials or third party software not meeting HEI specifications or the use of the products and/or HEI proprietary software for purposes other than those for which they were specifically designed. In addition, this warranty does not apply to any software product that is proprietary to a third party supplier and covered by this Agreement (the warranty with respect to any such software product, if any, is the warranty provided by the third party provider of that product), and this warranty does not cover consumable parts and supplies (i.e., paper, light bulbs, printer ribbons, ink cartridges, storage media, fuses, etc.) used with the products and software. This warranty does not constitute a warranty that procedures performed using the products and software covered by this Agreement will be subject to reimbursement by any insurance carrier. This is the only warranty provided by HEI, AND HEI DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO ANY PRODUCTS AND/OR SOFTWARE, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, OR OTHERWISE, OR ANY WARRANTIES ARISING OUT OF COURSE OF CONDUCT OR OTHER TRADE CUSTOM OR USAGE, AND HEI ASSUMES NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR PERFORMANCE OR ADEQUACY OF ANY OF ITS PRODUCTS OR SOFTWARE. Buyer is responsible for the protection and integrity of all patient data, and HEI will not be liable for any loss of patient data.
11. Warranty Service.
If Buyer needs warranty service, HEI will assist Buyer with the necessary arrangements to have the equipment shipped to an authorized service center. The shipping method, normally 2 day service, will be paid for by HEI. For warranty service or technical support call HEI at (800) 931-2230 during HEI hours of operation. HEI provides post-warranty period service of its instruments pursuant to a separate “Instrument Service Agreement.”
12. Exclusive Remedy.
Buyer’s remedies for the failure of any products and software covered by this Agreement to comply with the warranty set forth above are exclusively as set forth in the “Warranty” section. HEI WILL NOT UNDER ANY CIRCUMSTANCES BE RESPONSIBLE FOR ANY OTHER DAMAGE, INCLUDING ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGE OR LOSS, ARISING FROM THIS AGREEMENT, ANY HEI PRODUCTS OR SOFTWARE, ANY HEI SERVICES, OR OTHERWISE, INCLUDING WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, INJURY TO PERSONS, DAMAGE TO TANGIBLE PROPERTY OR DAMAGES RESULTING FROM ANY INABILITY TO USE ANY HEI PRODUCT OR SOFTWARE.
Under no circumstances shall HEI be obligated to indemnify, hold harmless or defend Buyer from any third party suit with respect to any claim of patent infringement, trademark, copyright, mask work right, trade secrets or similar proprietary rights.
14. Prohibition Of Product Use In High Risk Applications.
Unless specifically otherwise agreed in writing by HEI, Buyer acknowledges that products sold by HEI are not intended for and will not be used in high risk applications, including but not limited to, life support systems, human implantation, nuclear facilities or systems, or any other application where product failure could lead to loss of life or catastrophic property damage. Buyer will indemnify, defend and hold HEI harmless from any loss, cost or damage resulting from Buyer’s breach of the provisions of this paragraph, including, without limitation, attorneys’ fees and costs relating to any lawsuit or threatened lawsuit, arising out of such use or sale.
This Agreement, comprised of these Terms along with the information on the front of or attached to these Terms embodies the entire agreement and understanding between the parties with respect to the products and software covered by this Agreement, and supersedes all prior agreements and understandings relating to the subject matter hereof, whether oral or written. This Agreement may only be modified by a written document executed by both parties and specifically referencing this Agreement and its amendment. This Agreement shall be interpreted and enforced under the laws of the State of Massachusetts, without application of its conflicts or choice of law rules.
16. Export Compliance; U.S. Government Contracts.
Buyer acknowledges that products, services, technical data, and all information communicated from HEI that is intended for export, re-export and/or international sales, is made with full disclosure to HEI as to intended destination outside the United States and that Buyer is fully compliant with United States Export Laws. If Buyer’s order is placed under a contract with the United States Government, HEI agrees to comply with those contract provisions and regulations with which, pursuant to law, it must comply and of which Buyer has, at the time of order placement, placed HEI on written notice. In no event will United States Government Cost Accounting Standards apply. No provision of Buyer’s contract with the United States Government will be binding on HEI or the manufacturer except as expressly set forth in this paragraph. Any or all products may be subject to export or resale restriction or regulation, and Buyer acknowledges that it will comply with such regulations or restrictions and Buyer hereby indemnifies and shall hold HEI harmless from any loss, cost or liability that arises directly or indirectly out of any claim that Buyer failed to observe United States Export Laws. Any or all products may have been imported. Country of origin information is as provided to HEI by its suppliers and is, where applicable, located on the products themselves or the supplier’s packaging.
All agreements, covenants, conditions and provisions contained herein shall apply to and bind the assignees and successors in interest of Buyer and inure to the benefit of HEI and its successors and assigns. If any provision or portion of this agreement is held to be invalid, illegal, unconscionable or unenforceable, the other provisions and portions hereof shall not be affected. The captions used herein are for the convenience of the parties only and shall not affect the construction or interpretation hereof. The parties expressly exclude the applicability of the United Nations Convention for the International Sale of Products. The exercise or failure to exercise any remedy shall not preclude the exercise of that remedy at another time or of any other remedy at any time. No action, regardless of form, arising out of, or in any way connected with, the products furnished or services rendered by HEI, may be brought by Buyer more than one year after the cause of action has accrued.
Heidelberg Engineering, Inc. Instrument Service Agreement Terms and Conditions
The Heidelberg Engineering, Inc. (hereafter referred to as HEI) Annual Service Agreement (also known as the Total Care Program) ensures optimal performance of your HEI devices and software. By reducing the likelihood of unexpected and un-budgeted costs, the plan also allows for accurate management of the overall budget and provides peace of mind knowing your device and your data are well-maintained and that assistance is only a call or email away.
Telephone Technical Support
HEI’s experienced and responsive Technical Support team shall provide unlimited telephone support between the hours of 8:00 am and 7:00 pm ET Monday through Friday for issues related to troubleshooting, diagnostics, or user operation, providing quick and reliable solutions to keep your practice running smoothly.
Telephone Application Support
The HEI Applications Support team have extensive experience as ophthalmic photographers and technicians. The team members shall provide unlimited telephone support between the hours of 8:30am and 5:00pm ET Monday through Friday for questions related to imaging techniques, modalities, and the use of the instrument software.
Remote Log-in Support
HEI Support teams shall provide unlimited remote log-in support between the hours of 8:00 am and 7:00 pm ET Monday through Friday to troubleshoot and resolve issues, minimizing interruptions to patient workflow by eliminating the need for an on-site visit.
Online Support (Email and Web)
HEI Support teams shall provide a response to your email and/or website inquiries within twenty-four (24) business hours.
HEI shall provide replacement parts to maintain your instrument at the highest level of operation.
- Repair of manufacturer defects for damaged lenses are covered for the lifetime of the lens
- Peripheral equipment, such as monitor and computer, are covered by manufacturer warranty for three (3) years
- Repairs of defective data drive and/or archive drive are covered for the life of the instrument. Customers with full storage drives may purchase replacements via HEI
- Operating system drives are covered for the life of the instrument. Operating system upgrades may be purchased via HEI, with telephone support provided by our Technical Support team
- Repair of damage to the mechanics of the system table from any cause other than conventional use will be covered for five (5) years
On-site Field Service
HEI Field Service Engineers located across the United States shall provide on-site support within forty-eight (48) business hours from the time the call is placed with our Technical Support team and the determination is made that on-site service is required.
Time & Labor
HEI shall provide all time and labor during standard business hours from 8:00 am to 5:00 pm local time Monday through Friday. Service requested by the customer to be performed outside the standard business hours is subject to additional fees.
HEI shall provide on-site support by our Field Service Engineers with no travel or dispatch charges.
Expedited Loaner Services
In the event your instrument requires in-house repair in our Franklin, MA, facility, HEI shall provide a loaner instrument for the duration of the repair. The loaner instrument and Field Service Engineer will arrive at your site within forty-eight (48) business hours to install the device.
Equipment Preventative Maintenance
HEI shall provide a comprehensive, proactive in-service health assessment for your system during the coverage period. Our engineers will – on a coordinated effort with the customer – remotely access the system, download and analyze the log files of each camera system for performance trends, and make recommendations as appropriate to help keep your system operating at peak performance. A profile report on the health of your system will be provided to you as part of this plan.
HEYEX Software Maintenance
Customers with an active Service Agreement will receive priority notification about new software releases with convenient links for downloading to the newest version. All software updates and support are provided at no charge.
HEYEX 2 Annual Maintenance & Licensing (if applicable)
The HEYEX 2 Annual Maintenance & Licensing Plan is a plan for customers with HEYEX 2 that can be purchased as standalone coverage for HEYEX 2 software or in combination with the Total Care Program for full software and hardware coverage. It includes the following:
- HEYEX 2 Software Licensing: Annual licensing for the HEYEX 2 software is required for uninterrupted access to all the functionalities of the platform.
- HEYEX 2 Software Updates: Regular software updates ensure your system always has the latest technology and features. Additionally, access to bug fixes and the latest firmware versions allow for seamless communication between the device and the HEYEX 2 software. As software updates become available, we will notify you to schedule a remote installation of the update.*
*Remote installation of software updates requires access to the internet. If your system does not have access to the internet, on-site installation can be arranged for an additional fee.
A. HEI offers an all-inclusive Service Agreement in increments of (1) year, which are available after the expiration of the instrument warranty period. This agreement applies to any HEI instrument that has been placed under the Service Agreement.
B. The all-inclusive Service Agreement provides comprehensive coverage for your instrument to ensure optimal performance and availability throughout the term of the agreement. See section 14 under “Coverages” for details. The term of this agreement is for one (1) year from the start date shown on the agreement quotation unless a multi-year term agreement is purchased.
C. This agreement is contingent upon the current satisfactory condition of the instrument. A scheduled , billable service call may be required to certify the instrument status if the instrument has been out of warranty, or not covered by a Service Agreement for period greater than ninety (90) days. Pending inspection and all possible repairs, the instrument will become covered by a Service Agreement.
Unless a separate written agreement is entered between HEI and customer either modifying this agreement (“Agreement”) or setting forth which term will control, the following terms and conditions are part of HEI’s quotation and shall become the exclusive and binding agreement between HEI and customer with respect to the order of the customer for instrument servicing and maintenance. This Agreement is subject to acceptance by HEI at its office in Franklin, Massachusetts. Notwithstanding anything else to the contrary, HEI is free to accept or reject service orders from customer. Acceptance by HEI shall be deemed to have occurred if HEI does not advise the customer to the contrary within three (3) business days of the date on which this Agreement is signed on behalf of the customer. During that three day period, the customer may also cancel this Agreement by notifying HEI in writing at the address shown on the front of this Agreement. After that three day period, this Agreement shall constitute a firm and binding agreement of customer to order and of HEI to perform Full Services covered by this Agreement and shall not be cancelable by either party without the agreement of the other party, unless the other party breaches a material obligation described in this Agreement. Any cancellation of this agreement after that three day period shall result in customer’s forfeiture of any unused Agreement Price and customer shall not be entitled to any refund. Neither HEI’s acknowledgement of a customer purchase order, nor HEI’s failure to object to a customer purchase order or any other document, communication or act of customer will be deemed a waiver of any of these terms and conditions. NO TERM OR CONDITION SET FORTH IN ANY OF CUSTOMER’S SOLICITATIONS OR CUSTOMER PURCHASE ORDERS SHALL BECOME PART OF ANY ORDER OR OTHERWISE BECOME BINDING ON HEI UNLESS EXPRESSLY AGREED TO IN WRITING BY HEI. ANY CUSTOMER PURCHASE ORDER IS ACCEPTED SOLELY ON THE CONDITION THAT CUSTOMER EXPRESSLY ACCEPTS AND ASSENTS TO THE TERMS AND CONDITIONS CONTAINED HEREIN.
4. TERM OF AGREEMENT
A. The initial term of this Agreement shall be for the Agreement Period provided for herein and shall commence on the later of (i) the Effective Date set forth herein; or (ii) if this Agreement is executed at the time of purchase of the instrument, the expiration of the applicable warranty period for that instrument.
B. The Agreement Period may be renewed by the parties upon their mutual written agreement. The renewal will be for a new Agreement Period in one year increment, commencing upon the lapse of the then-current Agreement period. The parties may mutually agree to extend the Agreement Period for an unlimited number of times during the term of this Agreement, subject to its terms and conditions.
C. Failure to renew this Agreement, as provided herein, will result in the termination of all services provided hereunder. Reinstatement of support benefits will be made only upon the mutual agreement by the parties to so reinstate support and be effective upon payment of the applicable Agreement Price that is in arrears as well as the Agreement Price for the then-current Agreement Period.
5. PRICE, TERMS OF PAYMENT
A. Customer shall be entitled to full Services only during the term of this Agreement and only upon payment of the Agreement Price as set forth on the cover page hereof.
B. Payment terms are upon receipt.
C. Customer hereby warrants that all charges incurred will be honored by the applicable credit card company or bank. Customer hereby authorizes HEI to automatically renew the Agreement Period until customer terminates this Agreement in writing by sending HEI a written notice of termination at least thirty (30) days before the then current Agreement Period.
D. Any local or state sales, use or other taxes (exclusive of income taxes and franchise taxes imposed on HEI) incurred by reason of this Agreement shall be paid by the customer.
E. HEI reserves the right to withhold, without liability and without prior notice, services provided under this Agreement if the Agreement Price is unpaid, or if customer is delinquent in paying for any other services rendered by HEI or any other amounts due and payable to HEI.
6. CONDITIONS / EXCLUSIONS
A. Should persons other than HEI or its designated qualified service representative perform maintenance or repair of the instrument, and as a result, HEI determines additional maintenance or repair is necessary, such further repairs will be made at HEI applicable time and material rates and terms then in effect.
B. HEI shall have full and free access to the instrument to provide the services.
C. Service provided by HEI outside the scope of this Agreement shall be furnished at HEI’s applicable time and material rates and terms then in effect.
D. This Agreement does not cover consumable parts and supplies (i.e. paper, light bulbs, printer ribbons, ink cartridges, storage media, fuses, etc.). Parts replaced shall become the property of HEI.
E. Service to be provided on the customer’s premises is limited to performance during HEI hours of operation. Service requested by the Customer to be performed outside the standard business hours is subject to additional fees.
F. This Agreement does not include the cost of service due to: 1) repair of damage resulting from or attributable to transporting, disassembly or reassembly of the instrument by the customer; 2) neglect or misuse, acts of God, alterations or modifications to the instrument performed by others; 3) the failure of customer to provide and maintain a suitable installation environment (including electrical power, humidity control, temperature control, space, and computer platform and capacity); 4) the use of supplies, materials or third party software not meeting HEI specifications, or the use of the instrument for purposes other than those for which it was specifically designed; 5) the provisions of optional retrofits; 6) services connection with equipment relocation; 7) repair of laptop computers/docking stations, printers, monitors, work stations and view stations; 8) adding or removing accessories, attachments, or other devices; 9) exterior painting or refinishing of equipment; 10) increase in service time resulting from operator neglect or unique application.
7. INSURANCE AND WORK ON CUSTOMER PREMISES
If this Agreement requires the presence on the customer’s premises of HEI’s employees, agents, suppliers or permitted subcontractors, HEI shall not be responsible for any loss or damage to property of any kind owned or leased by the customer, its employees, servants or agents. Customer, at its sole cost, shall maintain insurance coverage throughout the entire term of this Agreement with insurance companies and coverage acceptable to HEI.
8. DISCLAIMER OF WARRANTIES
The sole obligation of HEI hereunder shall be to provide service as specified herein. All other warranties of any kind are hereby disclaimed. Nothing in this Agreement shall change, extend or modify HEI’s original instrument warranty. The customer is responsible for the protection and integrity of all patient data, and HEI will not be liable for any loss of patient data. In no event shall HEI be responsible for incidental, special or consequential damages even if it has been advised of the possibility of such damages. The remedies of customer set forth herein are exclusive.
9. PROHIBITION OF INSTRUMENT USE IN HIGH RISK APPLICATIONS
Unless specifically otherwise agreed in writing by HEI, customer acknowledges that instruments sold or serviced by HEI are not intended for and will not be used in high risk applications, including but not limited to, life support systems, human implantation, nuclear facilities or systems, or any other application where product failure could lead to loss of life or catastrophic property damage. Customer will indemnify, defend and hold HEI harmless from any loss, cost or damage resulting from customer’s breach of the provisions of this paragraph, including without limitation attorneys’ fees and costs relating to any lawsuit or threatened lawsuit, arising out of such use.
Customer shall indemnify, defend, and hold HEI harmless from all claims, damages, expenses, liabilities and losses, including without limitation attorney’s fees and costs incurred, whether or not a lawsuit or other action is filed, that in any way arise out of or relate to any personal injuries, property damages or other losses resulting or occurring from this Agreement or the services provided under this Agreement, except to the extent such personal injuries, property damages or other losses are directly caused by the gross negligence or willful misconduct of HEI or its representatives.
11. LIMITATION OF LIABILITY
HEI SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES SUFFERED BY CUSTOMER AND/OR ANY OTHER PARTY, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING FROM THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, THE SERVICES PROVIDED UNDER THIS AGREEMENT AND/OR THE USE OR INABILITY TO USE THE INSTRUMENTS SERVICED BY HEI UNDER THIS AGREEMENT, LOSS OF GOODWILL OR PROFITS AND/OR FROM ANY OTHER CAUSE WHATSOEVER, WHETHER FORESEEABLE OR NOT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL HEI’S LIABILITY FOR ANY CAUSE OF ACTION RELATING TO THIS AGREEMENT EXCEED AMOUNTS RECEIVED AND RETAINED BY HEI UNDER THIS AGREEMENT. NO ACTION, REGARDLESS OF FORM, ARISING UNDER THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENTS WHICH GAVE RISE TO THE CAUSE OF ACTION.
HEI may assign this Agreement, without the consent of customer, provided that customer shall continue to be entitled to receive service consistent with the provisions of this Agreement from the assignee. Customer may not assign this Agreement. Any early termination of this agreement shall result in customer’s forfeiture of any unused Agreement Price and customer shall not be entitled to any refund.
13. FEES AND COSTS
Customer will pay HEI’s reasonable costs and expenses relating to the enforcement or preservation of HEI’s rights under this Agreement including reasonable attorney fees.
The relationship between customer and HEI is only that of independent contractors notwithstanding any activities set forth in this Agreement. No party is the agent or legal representative of any other party, and no party has the right or authority to bind any other party in any way. Any notice or other communication given hereunder shall be in writing and mailed to the party to which it is directed at its address shown on the front of this Agreement, or to such other address as such party shall have theretofore specified by notice. Such a notice or communication shall be deemed to have been given on the date it is mailed to the other party. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts without application of its conflicts or choice of law rules, and the customer hereby consents to the exclusive jurisdiction of the state and federal courts located in Boston, Massachusetts, with respect to any dispute that may arise under or relating to this Agreement. No provision of this Agreement shall be deemed waived, amended, or modified by either party unless such waiver, amendment, or modification is in writing and signed by the party against whom it is sought to be enforced. This Agreement constitutes the entire agreement between the customer and HEI with respect to the subject matter hereof, regardless of inconsistent or additional terms and conditions in any customer purchase order or other document submitted to HEI, and any prior understanding or agreement with respect to the subject matter hereof, oral or written, is cancelled or merged herein.
Heidelberg Engineering Inc. Software License Addendum
This Software License Addendum (“License”) incorporates by reference the Heidelberg Engineering, Inc. Terms and Conditions of Sale (the “Terms and Conditions”) and supplements the Terms and Conditions with the following additional provisions. In the event of any conflict between this License and such Terms and Conditions, this License shall take precedence with respect to any Software or Third-Party Software or related services. Except as modified and supplemented herein, the Terms and Conditions will remain in full force and effect pursuant to their terms.
Terms not otherwise defined herein shall have the meanings set forth in the Terms and Conditions:
“Buyer Data” means any data provided or collected by Buyer that is accessed, processed or stored by the Software or Third-Party Software or associated product. “Documentation” means all material, including all printed material and on-line or electronic documentation (excluding training materials), referencing the Software and/or Third-Party Software provided hereunder.
“Quote” means the Quote issued by HEI for the Software, Third-Party Software or associated product.
“Software” means HEI’s proprietary computer software provided by HEI under this License, including any Updates thereto.
“Third-Party Software” means any proprietary computer software owned by a third party that HEI may provide to Buyer in connection with the Software or associated product.
“Update” means upgraded, modified or enhanced versions of the Software provided by HEI.
2. License Grant.
2.1 Subject to the terms of this License, HEI hereby grants to Buyer a non-exclusive, non-transferrable license to use Software and Documentation in connection with the associated product(s) sold by HEI.
2.2 Buyer has no right to (i) lease, rent, transfer, distribute, sublicense, timeshare, or allow third parties to access Software, Documentation, or Third-Party Software; (ii) disassemble, decompile, reverse engineer, or otherwise attempt to reconstruct or discover the source code of the Software or Third-Party Software; (iii) pledge Software or Third-Party Software as collateral or otherwise, or encumber such Software or Third-Party Software with any lien or security interest; (iv) modify, alter or adapt the Software or Third-Party Software, or (v) remove any product identification, copyright, trademark, or other notice from Software, Documentation or Third-Party Software. Notwithstanding the foregoing, Buyer shall be permitted to allow its third party associates, faculty, staff, contractors or consultants (“Representatives”) to access and use the Software, Documentation and Third-Party Software on behalf of Buyer, provided that any such person shall use the Software, Documentation and Third-Party Software only for the benefit of Buyer and only in accordance with the terms of this License, and Buyer shall be responsible for the use by such Representatives.
2.3 Any Third-Party Software is provided to Buyer subject to the terms and conditions established by the third party supplier of such software. Such terms and conditions may be found or identified in Documentation, or the Order or Quote, or on the media delivered with Software, and which are incorporated by reference into this License. All Third-Party Software provided hereunder is bundled with HEI products and licensed for use with such products only.
2.4 Unless otherwise agreed by HEI or as specified in the applicable Quote or accepted purchase Order, Buyer shall only have the right to install and use a single copy of Software and Third-Party Software on a single computer workstation for use with HEI products.
2.5 Buyer may make one (1) copy of Software, Documentation, and Third-Party Software for backup purposes only, including by printing one-copy of on-line Software documentation for its own internal use. Buyer must reproduce and include all proprietary rights and copyright notices on any backup copies
3.1 If installation services are included, HEI shall install, and implement the Software in accordance with the milestones (“Milestones”) and other terms agreed by the parties and set forth in the accepted purchase Order. HEI shall use commercially reasonable efforts to install and implement the Software pursuant to the Milestone schedule and in a manner that attempts to minimize disruption to the operations of the Buyer’s site.
3.2 This License does not obligate HEI to provide maintenance and support for any Software or Third-Party Software licensed hereunder. Support services are available under separate agreement (a “Support Agreement”), subject to payment of applicable annual maintenance fees. If HEI makes an Update available (either under any Support Agreement or generally to all customers without charge) that according to HEI’s records is relevant to Buyer, HEI will make reasonable efforts to notify Buyer of the existence of the Update and to make the Update available to Buyer (usually via download from HEI’s website). In general, HEI does not charge for such Updates, however, HEI reserves the right to charge for significant Updates, including those that provide substantial additional functionality or upgraded performance. Buyer may use any Updates provided or made available only in accordance with this License.
3.4 All services provided by HEI to Buyer related to the installation, implementation or support of the Software shall be performed in a professional and workmanlike manner by individuals of appropriate training and experience. In the performance of the services hereunder, all HEI personnel shall comply with all applicable Buyer policies and procedures provided in advance to HEI.
3.5 Buyer acknowledges that HEI does not generally have access to any Buyer Data stored in or processed by the Software or Third-Party Software. Any such access would arise solely in connection with installation or support services provided pursuant to this License or a Support Agreement. In the event that HEI shall have access to Buyer Data or other protected health information, HEI shall, upon request, execute and comply with a standard form of Business Associate Agreement (a “Business Associate Agreement”).
4. Fees & Verification.
4.1 Except as otherwise set forth in an accepted purchase Order, Buyer shall pay ten percent (10%) of the total amount related to the Software as indicated in the applicable Order (or associated Quote) upon acceptance of the Order by HEI. The remaining balance owed shall be paid in three (3) Milestone payments due upon the completion of each Milestone: (a) the Milestone 1 payment is due upon completion of all hardware installation and configuration of servers; (b) the Milestone 2 payment is due upon completion of cache management backend, Software installation, and data copy; and (c) the final Milestone 3 payment is due upon completion of Software data migration, training, third party device integration (if applicable) and go-live with the Software (“Go-Live”).
4.2 If an accepted purchase Order (or associated Quote) includes annual licensing fees for the Software, Buyer shall pay (a) the applicable licensing fee for the Initial Term (as defined in Section 5) upon Go-Live, and (b) the applicable licensing fee for each Renewal Term prior to the start of such Renewal Term.
4.3 During the term of this License and for 1 year thereafter, HEI may upon reasonable notice conduct an audit of the use of Software and Third-Party Software during normal business hours. Any such audit will be conducted so as to minimize any disruption of Buyer’s operations and any non-public information learned during such inspection shall be considered the Confidential Information of Buyer. Upon such notice, Buyer shall provide HEI site access and the right to inspect relevant portions of Buyer’s computer system on which Software and Third-Party Software resides.
5. Term and Termination.
5.1 For perpetual licenses (as indicated in an accepted purchase Order), this License is effective until terminated. If the Quote indicates a license is for a specified term, then such License shall remain in effect for the indicated term from the Effective Date (the “Initial Term”). Thereafter, the term of such License shall automatically renew for additional one year terms (each, a “Renewal Term”), unless either party gives written notice of termination at least 30 days prior to the end of the then current Initial Term or Renewal Term, as applicable. Unless otherwise specified in an applicable Quote, the License price for a Renewal Term shall be HEI’s then current price on the date of renewal.
5.2 HEI may terminate this License immediately if Buyer fails to comply with any of the terms and conditions herein and fails to cure such default within 30 days of receiving notice thereof from HEI. The license for any Software or Third-Party Software provided with leased products shall terminate concurrently with termination of the lease. Upon any termination, Buyer shall (a) cease using Software, Documentation, and Third-Party Software and (b) certify to HEI within one (1) month of the termination that Buyer has destroyed or returned to HEI Software, Documentation, and Third-Party Software, and all copies thereof.
6.1 All Software, Documentation, and Third-Party Software is licensed and not sold. Buyer agrees that HEI and its suppliers own all proprietary rights, including, but not limited to any patent, copyright, trade secret, trademark, and other proprietary rights, in and to Software, Documentation, and Third-Party Software, including any derivatives thereof.
6.2 HEI agrees that Buyer owns all proprietary rights, including, but not limited to any patent, copyright, trade secret, trademark, and other proprietary rights, in and to Buyer Data. The Software, Documentation and Third-Party Software shall not be deemed to include any Buyer Data.
7. Limited Warranties & Disclaimers.
7.1 HEI warrants to the Buyer that, for a twelve (12) month period starting on the date of Go-Live (the “Warranty Period”), the HEI Software covered by this Agreement will materially comply with its then-current Documentation. If, during the Warranty Period, an Error occurs (where “Error” is defined as a problem caused by failure of unmodified Software code to operate in conformance with the Documentation), HEI will use commercially reasonable efforts to correct such Error, provided Buyer furnishes HEI with the following: (a) written notice of the warranty claim, including a description of the failure to perform in accordance with Documentation and a specific description of the operating conditions (including the specific software/hardware configuration) under which the failure occurred, and (b) to the extent feasible, a representative sample of inputs for repeating and analyzing the failure. Any remedial steps taken by HEI hereunder shall not extend the applicable Warranty Period. If HEI is unable, after commercially reasonable efforts, to correct the Error, Buyer’s sole remedy shall be termination of the License and a refund of the license fees allocable to the Software that have been paid by Buyer to HEI hereunder.
7.2 The warranty in Section 7.1 does not cover Errors to the extent caused by the: (1) the failure of Buyer to provide and maintain a suitable installation environment for the Software; (2) the use of third party software, hardware or items not meeting HEI specifications in conjunction with the Software or Third-Party Software, or (3) neglect or misuse, acts of God, or alterations or modifications to the Software performed by others.
7.3 To the maximum extent possible, Buyer shall have the benefit of any applicable third party warranty or support with respect to Third-Party Software. In the event of problems with such Third-Party Software, HEI shall reasonably assist Buyer in obtaining the benefits of such warranties or support from the third party licensor thereof, but shall have no liability with respect to Third-Party Software or the support thereof.
7.4 This Section 7 provides the exclusive remedies for all claims of any kind based on failure of or defects in Software, Third-Party Software and Documentation, whether the failure or defect arises before, during, or after the applicable Warranty Period. The warranties provided in this Section 7 are exclusive and are in lieu of all other warranties, conditions, and guarantees whether written, oral, implied, or statutory for the Software, Third-Party Software and Documentation. HEI, AND HEI DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO ANY SOFTWARE, THIRD-PARTY SOFTWARE, DOCUMENTATION, OR RELATED SERVICES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, OR OTHERWISE, OR ANY WARRANTIES ARISING OUT OF COURSE OF CONDUCT OR OTHER TRADE CUSTOM OR USAGE. Nothing in this Section 7 shall limit or affect any support available under an applicable Support Agreement. The aggregate and cumulative liability of HEI with respect to the Software, services, or this License shall not exceed the amount of fees paid by Buyer under this License.
8. Confidential Information; Equitable Relief.
8.1 “Confidential Information” means any material, data or information disclosed by a party (the “Discloser”) to the other party (the “Recipient”), or to which the Recipient has access, that is not generally known by or disclosed to the public or to third parties, including (a) with respect to HEI, the Software (including code and training materials), Documentation, and Third-Party Software, and (b) with respect to Buyer, the Buyer Data and any other patient and medical record information and protected health information (as defined under HIPAA) maintained by Buyer.
8.2 Each Recipient agrees: (a) to exercise the same degree of care and protection with respect to a Discloser’s Confidential Information that it exercises with respect to its own Confidential Information, but in no event less than a reasonable degree of care; (b) not to use the Discloser’s Confidential Information except as permitted or contemplated hereunder; and (c) not to directly or indirectly disclose, distribute, republish or allow any third party to have access to any Confidential Information of the Discloser without the Discloser’s prior written consent. Notwithstanding the above, but subject to the further requirements of this Agreement, as applicable: (i) Buyer may disclose HEI Confidential Information to Buyer’s Representatives who have a need to know; (ii) HEI may, subject to any applicable Business Associate Agreement, disclose Buyer’s Confidential Information to its employees, authorized agents and subcontractors who have a need to know for use in accordance with this Agreement; and (iii) a Recipient may disclose Confidential Information if so required by law (including court order or subpoena) provided that the Recipient provides the Discloser with reasonable written notice of such disclosure if not prohibited by law.
8.3 Proprietary Information shall not include any information to the extent it: (a) is publicly or generally known, (b) was rightfully in the possession of Recipient prior to the date of receipt of such information from Discloser, or (c) is obtained from third parties without violating any confidentiality agreement. The confidentiality obligations set forth in this Section 8 shall survive termination of this License.
8.4 Each Recipient acknowledges that any misuse (including any use of Software, Documentation, or Third-Party Software in a manner inconsistent with this License) or disclosure of a Discloser’s Confidential Information, will cause immediate irreparable harm to the Discloser for which there is no adequate remedy at law. Each Recipient agrees that the Discloser shall be entitled to seek injunctive relief from a court of competent jurisdiction in the event of any such misuse or threatened misuse by the Recipient without posting of a bond or other security. The foregoing shall not limit HEI’s right to any remedies available at law, including the recovery of damages from Buyer for breach of this License.