Terms of Service
Terms and Conditions Governing the Use of the Infraredx, Inc. Website
Welcome to the Infraredx website ("website"). Infraredx, Inc. ("Infraredx") created and maintains this website to provide information to and communicate better with physicians, patients, investors, and others who may be interested in learning more about Infraredx and the products and services it offers. You may use this website, provided you comply with these terms and conditions.
Your Acceptance of These Terms and Conditions
Please take a few minutes to carefully review these terms and conditions. By accessing and using this website you agree to follow and be bound by these terms and conditions. If you do not agree to follow and be bound by these terms and conditions, you may not access, use or download materials from this website.
These Terms and Conditions May Change
Infraredx reserves the right to update or modify these terms and conditions at any time without prior notice. Your use of this website following any such change constitutes your agreement to follow and be bound by the terms and conditions as changed. For this reason, we encourage you to review these terms and conditions every time you use this website.
These terms and conditions were last revised on May 1, 2013.
InfraReDx, Inc. (“Seller”)
TERMS AND CONDITIONS OF LICENSE AND SALE
All prices quoted are exclusive of all taxes (except taxes levied against Seller's income) including state and local use, sales, property and similar taxes. Buyer shall be responsible for all such taxes, including sales, use and similar taxes. All prices are exclusive of transportation charges, insurance, and all freight, customs or license fees which are the responsibility of Buyer. All sales are subject to the approval of Seller's credit department.
2. PAYMENT AND SECURITY TERMS
a. Unless otherwise agreed in writing, full payment is due thirty (30) days from the date of invoice.
b. If Buyer fails to pay any charges when due and payable, Buyer agrees that Seller shall have the right to invoice Buyer for, and Buyer will pay, all costs, including reasonable attorney fees, expended in collecting overdue charges plus a
late payment charge to the maximum extent permitted by law but not to exceed 1.5% per month on the unpaid balance.
3. DELIVERY DATES
Seller shall use reasonable efforts to ship the goods prior to the proposed delivery date, but will not be liable for delays in meeting such date. Shipment and installation are, inter alia, subject to Seller’s production schedule and Buyer’s site preparation and provision of required access to Seller.
4. SHIPMENT AND RISK OF LOSS
a. All goods are shipped Ex Works Seller’s facility in Burlington, Massachusetts.
b. Title (other than software, which is licensed, not sold, and for which Seller retains all ownership rights) shall pass upon payment in full.
c. Seller shall not be liable for any delay in performance hereunder due to unforeseen circumstances or due to causes beyond its control, including, but not limited to, acts of nature, acts of government, labor disputes, delays in transportation, and delays in delivery or inability to deliver by Seller’s suppliers.
Goods may not be returned to Seller under any circumstances without obtaining a Return Merchandise Authorization (“RMA”) number from Seller. A re-stocking charge may be applicable.
6. INSPECTION, ACCEPTANCE AND TRAINING
a. Any claims for defective, damaged, or missing goods or components must be reported in writing by the Buyer within fifteen (15) business days from date of delivery. For any claims validly and timely made, Seller shall reserve the right to repair or replace the defective, damaged or missing goods. Seller may use refurbished parts for repairs or replacement.
b. At no charge, Seller will provide in-service training at Buyer’s facility, necessary for the operation of the device. Completion of training shall be evidenced by the signature of the trainees of the Seller’s Customer Training Record. Additional training may be provided upon request, subject to approval by Seller.
a. Seller warrants that under normal circumstances: (i) durable equipment will remain free of defects for a period of one (1) year from installation, (ii) all single use items, such as catheters, will remain free from defects for a period of ninety (90 days) from shipment and (iii) the Software (defined below) will conform in all material respects to the applicable documentation for a period of ninety (90) days from installation of the applicable durable equipment.. Seller will repair or replace, at its discretion, all defective components during this warranty period. Any such replacement may include refurbished parts or components. After the termination of the warranty period, repair services may be purchased from Seller at its published rates. Extended warranty and service may, at Sellers option, be offered for an additional charge, in which event separate or additional terms and conditions may apply. This sub-section states Seller’s entire liability for equipment warranty claims.
b. During the applicable warranty period, upon Buyer’s request, Seller shall make all necessary adjustments and repairs to keep the equipment in good operating condition during Seller’s regular business hours. Service requested by Buyer to be performed at times other than Seller’s regular business hours shall be subject to Seller’s personnel availability and charged to Buyer at Seller’s overtime rate on the date such service is performed. Seller’s representatives shall have full access to the equipment in order to effect the necessary adjustments and repairs.
c. Any applicable warranty period under this Section will begin on the date of initial installation as set forth in the Service Report Form signed by the parties upon installation of the equipment.
d The above warranties shall not apply to defects or damage resulting from misuse, negligence or accident, including, without limitation: operation by untrained operators; operation
outside of the environmental specifications for the equipment; improper or inadequate maintenance by the user; installation of software or interfacing not supplied by Seller; making of
modifications to the instrument or the software not authorized
by Seller; and making of repairs by anyone other than Seller or an authorized repair agent of Seller. If Seller determines that a repair or replacement claim was not caused by Seller or Seller's authorized service personnel, then Buyer shall pay Seller for all related costs incurred by Seller. This warranty is not transferable without the express written consent of Seller. Seller is under no obligation to provide any services not specified in this Agreement.
e. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE EXTENT PERMISSIBLE UNDER LAW, SELLER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT, SOFTWARE OR SINGLE USE ITMES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF NON- INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. LIMITATION OF LIABIITY
TO THE EXTENT PERMISSIBLE UNDER LAW, SELLER SHALL NOT HAVE LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING BUT NOT LIMITED TO ANY LIABILITY FOR THE EQUIPMENT NOT BEING AVAILABLE FOR USE, MIS-DIAGNOSIS, LOST PROFITS, LOSS OF BUSINESS OR FOR LOST OR CORRUPTED DATA OR SOFTWARE. TO THE EXTENT PERMISSIBLE UNDER LAW, SELLER WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. IN NO EVENT SHALL SELLER BE LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DIRECT DAMAGES ABOVE THE AMOUNT INVOICED FOR THE GOODS WITH RESPECT TO WHICH DAMAGES ARE SOUGHT.
a. Seller shall defend, indemnify, and hold Buyer harmless against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities arising out of any claim by a third party that the goods, as provided by Seller, infringes or misappropriates any issued U.S. patent, copyright or any trade secrets under U.S. law, provided that Buyer gives Seller: (i) prompt written notice of such claim; (ii) sole control over the defense and settlement of such claim; and (iii) proper and full information and assistance to settle and/or defend such claim. Notwithstanding the foregoing, Seller shall have no obligation or liability to the extent that the alleged infringement arises from (1) the combination, operation, or use of the goods with products not furnished by Seller; (2) alterations to the goods, which alterations are not made by Seller; (3) failure to use updates to any Software (defined below) or equipment provided by Seller; or (4) use of the goods in a manner for which it was not designed, as evidenced by any accompanying documentation.
b.In the event of an infringement action against Seller with respect to any materials or services provided by Seller hereunder, or in the event that Seller believes that such an action is likely, Seller may, at its option (i) appropriately modify such materials and/or services so that they become non-infringing, or substitute functionally equivalent materials of services; (ii) obtain a license to the applicable third-party intellectual property rights; or (iii) terminate this Agreement on written notice to Buyer. The obligations set forth in this Section 9 shall constitute Seller’s entire liability and Buyer’s sole remedy for any actual or alleged infringement or misappropriation.
c. Unless Buyer has contracted with a third party for service of the applicable equipment, Seller or its licensors will provide support and maintenance services with respect to the Software in accordance with the applicable support policies.
(a) Equipment may be accompanied by or include computer software (“Software”). The license fee for the
Software is included in the price of the equipment. All Software shall remain the sole and exclusive property of Seller or Seller’s licensor, and no title to Software or any intellectual property contained therein shall pass to Buyer. Seller grants Buyer a perpetual, paid-up, non-exclusive, nontransferable license solely to use the Software as embedded in the equipment, solely in connection with the use of the accompanying equipment, and solely in accordance with any applicable user documentation provided with such Software and/or equipment.
(b) Buyer shall not copy, modify, or disassemble, or permit others to copy, modify, or disassemble, the equipment hardware and/or Software, nor may Buyer modify, adapt, translate, reverse assemble, decompile, or otherwise attempt to derive source code from the Software. Buyer may not sublicense, assign or otherwise transfer the Software, and Buyer shall retain on all copies Software all copyright and other proprietary notices or legends included by Seller and/or its licensors on the equipment and/or Software.
a. Any required notices shall be given in writing to Seller at its facility at 34 Third Avenue, Burlington, Massachusetts
01803, Attn: Chief Financial Officer, and to the Buyer at the address as evidenced on the face hereof.
b. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other
party, which consent shall not be unreasonably withheld,
provided that the Seller may assign this Agreement and its obligations hereunder to any successor to its business by merger or consolidation or to any party acquiring substantially all of the assets of the Seller. Subject to the foregoing, the rights and obligations hereunder shall be binding upon the successors and assigns of both Seller and Buyer.
c. A party’s failure to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights or any rights hereunder. All Provisions of this Agreement are severable. If any provision or portion hereof is determined to be unenforceable by a court of competent jurisdiction, such provision or portion shall be modified to give the fullest possible effect to such provision and the remainder of this Agreement shall remain in full effect, provided that the general purposes of this Agreement remain reasonably capable of being affected.
d. If the Buyer exports from the U.S. the Equipment purchased hereunder, it shall assume all responsibility for obtaining any required export authorization and shall comply with all the applicable laws, rules and regulations of all governmental authorities, including, without limitation, the Export Administration Act. Buyer shall not export or re-
export technical data supplied by Seller, or the direct product
of such data in violation of applicable export regulations.
e. BUYER AGREES AND ACKNOWLEDGES THAT IT MAY USE THE EQUIPMENT ONLY FOR UNITED STATES FOOD & DRUG ADMINISTRATION (FDA)- APPROVED INDICATIONS.
f. Any disputes arising in connection herewith will be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts. The courts within the Commonwealth of Massachusetts shall have jurisdiction of all disputes hereunder and all objections to venue are hereby waived by Buyer. Buyer consents to service of process by certified mail addressed to the same address as that address designated for delivery of the goods purchased hereunder.
g. This Agreement may only be modified in writing signed by both of the parties authorized representatives, and which specifically purports to modify this Agreement.
h. Buyer is aware of its obligations and responsibilities under Federal and State laws (including Stark) with respect to “fraud and abuse” and the related Opinions and Guidelines of the DHHS Office of the Inspector General. Buyer hereby represents and warrants that to the best of Buyer’s knowledge, after due inquiry, its purchase of and payment for the Equipment pursuant hereto comply with, and its use of the Equipment hereafter will comply with, all applicable laws, rules and regulations.
i. Each party warrants that said party is not debarred or otherwise ineligible to participate in federal health care programs.
j. Buyer acknowledges and agrees that all transactions in connection with this Agreement are made in good faith on the basis of arms-length negotiation.
k. Buyer agrees that all pricing and other terms set forth in this Agreement are confidential and shall not be disclosed, disseminated, used or otherwise made available to any third party for any purpose including use as a basis for competitive solicitation.
12. CONDITIONS OF SALE
All sales and licenses of goods by Seller are subject to these Terms and Conditions. By submitting an order to Seller or by accepting delivery of goods or a component thereof, Buyer agrees to be subject to these Terms and Conditions. Any provision of Buyer's order which is inconsistent with or in addition to these Terms and Conditions shall not be binding upon Seller unless Seller expressly agrees in writing to such provision. All quotations issued by Seller are subject to these Terms and Conditions. No quotation shall be valid unless in writing, and signed by Seller.
Infraredx, Inc.34 Third Avenue
Burlington, MA 01803