1. APPLICABILITY.
a. These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the equipment (“Equipment”), consumable accessories (“Goods” and together with the Equipment, “Products”) and provision of Services, as defined in Section 3 below by Infraredx, Inc. (“Seller”) to the buyer named on the accompanying Sales Confirmation (“Buyer”).
b. The accompanying purchase order, cover sheet, invoice or scope of work (the “Sales Confirmation”), the user’s guide (the “User’s Guide”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
c. By accepting delivery and installation of the Equipment and using the Equipment Buyer:
(i) accepts the Terms and agrees that Buyer is legally bound by the Terms;
(ii) represents that Buyer and all Buyer’s personnel have reviewed the User’s Guide and will only use the Products in compliance with the User’s Guide and for the Product’s intended use;
(iii) represents and warrants that Buyer is the operator of a hospital catheterization lab (the “Facility”) and holds all requisite licenses and permits and has had all requisite inspections relating to the operation of the Facility;
(iv) represents and warrants that any and all personnel involved in the operation of the Equipment have the requisite training to operate such Equipment; and
(v) represents and warrants that Buyer has the right, power and authority to accept and be bound by the Terms.
d. If Buyer does not agree to the above, Buyer should contact Seller to make arrangements for the return of the Equipment to Seller. Use of the Equipment in violation of any of the above representations and warranties is a breach of this Agreement.
e. Notwithstanding anything to the contrary contained in this Agreement, Seller may, from time to time change the Services without the consent of Buyer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Sales Confirmation.
2. DELIVERY OF PRODUCTS.
a. The Products will be delivered within a reasonable time after the receipt of Buyer’s purchase order. Seller shall not be liable for any delays, loss or damage in transit.
b. The provision of Equipment shall include all hardware, software, systems, content and documentation (and any enhancements, modifications, improvements and new releases as may be applicable to the foregoing) and other resources used or required in order to operate the Equipment.
c. Unless otherwise agreed in writing by the parties, Seller shall deliver the Products Ex Works Seller’s facility (“Seller’s Location”) in Burlington, Massachusetts (“Delivery Point”) using Seller’s standard methods for packaging the Products. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Products at the Delivery Point; provided, however, that if Seller undertakes to load the Products or arrange for a carrier, Seller does so at Buyer’s sole risk and expense.
d. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order. For avoidance of doubt, in the event Seller make a partial shipment of Goods to the Buyer, at Seller’s discretion, Buyer shall not be responsible for costs associated with subsequent shipments.
e. If for any reason Buyer fails to accept delivery of any of the Products on the date fixed pursuant to Seller’s notice that the Goods are available at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
f. Seller shall use reasonable efforts to meet any performance dates to render the Services specified in the Sales Confirmation, and any such dates shall be estimates only.
3. DELIVERY OF SERVICES.
a. Seller shall install the Equipment at the Facility at such time as indicated in the Sales Confirmation or other date and time agreed to by the parties. “Installation” shall mean: (i) uncrating the Equipment; (ii) booting up the Equipment; and (iii) running initial diagnostics. In the event Buyer undertakes Installation of the Equipment, Buyer shall be in breach of this Agreement and all warranties relating to the Equipment shall be void.
b. Following Installation, upon the request of the Buyer, Seller shall provide one (1) day of training on the Equipment at the Facility for the personnel directly involved with the utilization of the Equipment (“Included Services”).
c. During the twelve months following Installation, Seller shall provide support and maintenance of the Equipment, which shall include (i) all required or optional updates to software (ii) one service visit to the Facility, as further described in the User Guide or on the Sales Confirmation and (iii) telephone support during normal business hours of Seller (i.e., 9:00 a.m. to 5:00 p.m. Eastern Standard Time or Eastern Daylight Time, as applicable) for technical issues relating to the Equipment (“Included Support”).
d. Any other Services requested by the Buyer must be included in reasonable detail in a Sales Confirmation, a maintenance and support agreement or subsequent scope of work and be accepted in writing by the Seller (“Out of Scope Services” and together with the Included Services and Included Support and any additional support and maintenance, “Services”). All Services provided shall be subject to this Agreement.
e. With respect to the Services, Buyer shall (i) cooperate with Seller in all matters relating to the Services and provide such access to the Facility, and such office accommodation and other facilities as may reasonably be requested by Seller, for the purposes of performing the Services; (ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Seller to perform Services in accordance with the requirements of this Agreement; (iii) permit Seller to install any updates to software that Seller deems necessary to address risk to the Equipment, personnel or patients; such updates to be provided to Buyer free of charge; (iii) provide such information as Seller may reasonably request to carry out the Services in a timely manner and ensure that such information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all Applicable Laws in relation to the Services before the date on which the Services are to start.
4. PRICE.
a. Buyer shall purchase the Equipment, Goods and Services from Seller at the prices (the “Prices”) set forth in Seller’s published price list in force as of the date of Buyer’s Sales Confirmation.
b. Buyer agrees to reimburse Seller for all reasonable travel and out-of-pocket expenses incurred by Seller in connection with the performance of the Services.
c. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personal or real property, or other assets.
5. SHIPPING TERMS. Delivery of the Products shall be made Ex Works Seller’s Location.
6. INSPECTION AND REJECTION OF NONCONFORMING PRODUCTS.
a. Buyer shall inspect: (i) the Equipment within 3 days of Installation and (ii) the Goods within 3 days of receipt (each an “Inspection Period”). Buyer will be deemed to have accepted the Products unless it notifies Seller in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Products” means only the following: (i) Product shipped is different than identified in Buyer’s Sales Confirmation; (ii) Goods shipped are different than identified in Buyer’s Sales Confirmation; or (iii) Equipment’s or Goods’ label or packaging incorrectly identifies its contents.
b. If Buyer timely notifies Seller of any Nonconforming Products, Seller shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the Price for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Products to Seller’s facility located at Burlington, Massachusetts. If Seller exercises its option to replace Nonconforming Products, Seller shall, after receiving Buyer’s shipment of Nonconforming Products, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Products to the Delivery Point.
c. Buyer acknowledges and agrees that the remedies set forth in Section 3(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Products. Except as provided under Section 3(b), all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products purchased under this Agreement to Seller.
d. If Seller delivers to Buyer a quantity of Goods of up to 5% more or less than the quantity set forth in the Sales Confirmation, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the Sales Confirmation adjusted pro rata.
7. SERVICE TESTING. Following Buyer receipt of any Services, Buyer may test the Service to determine whether the Service materially conforms to, performs in accordance with, and otherwise satisfies any and all applicable descriptions, specifications, requirements, and other criteria set forth in the applicable Sales Confirmation or otherwise agreed to in writing by the parties (the “Acceptance Criteria”). Buyer will notify Seller in writing whether Buyer rejects such Services that do not conform to and perform in accordance with the Acceptance Criteria. If Buyer rejects the Service, then Seller shall make any necessary corrections, repairs, fixes, modifications or replacement of the Equipment or any part of the Equipment. Buyer’s failure to provide written notice of a rejection within three (3) days of the Service being performed will be deemed an acceptance of the Service.
8. INTELLECTUAL PROPERTY RIGHTS.
a. Seller hereby grants Buyer a non-exclusive, irrevocable, non-transferable, royalty-free, world-wide license under all Intellectual Property Rights solely to (i) use and access the Products, and (ii) use and copy the applicable documentation, as is necessary for Buyer’s personnel to use the Equipment, as updated from time to time. Seller acknowledges such license includes use by Buyer, its affiliates and personnel. “Intellectual Property Rights” means any and all proprietary rights, on a world-wide basis, incorporated or embedded in, or that cover the use of, the Equipment or Goods, provided under: (i) patent law; (b) copyright law; (c) trademark law (including goodwill); (d) industrial design law; (e) any other statutory provision or common law principal applicable to this Agreement, including trade secret law, which may provide a right in any intellectual property or the expression or use thereof; and (f) any and all applications, registrations, licenses and agreements in relation to the foregoing.
b. Buyer agrees that, except as permitted by applicable law, Buyer will not reverse engineer or disassemble any Equipment received by the Buyer, or decompile or disassemble any software licensed by the Seller under this Agreement in order to develop or derive the design, operation or source code of any Equipment provided by Seller.
c. Buyer acknowledges and agrees that:
(i) any and all Seller’s Intellectual Property Rights are the sole and exclusive property of Seller or its licensors;
(ii) Buyer shall not acquire any ownership interest in any of Seller’s Intellectual Property Rights under this Agreement;
(iii) any goodwill derived from the use by Buyer of Seller’s Intellectual Property Rights inures to the benefit of Seller or its licensors, as the case may be;
(iv) if Buyer acquires any Intellectual Property Rights, rights in or relating to any Equipment (including any rights in any Trademarks, derivative works, or patent improvements relating thereto) by operation of Law, or otherwise, such rights are deemed and are hereby irrevocably assigned to Seller or its licensors, as the case may be, without further action by either of the parties; and
(v) Buyer shall use Seller’s Intellectual Property Rights solely for purposes of using the Goods under this Agreement and only in accordance with this Agreement and the instructions of Seller.
d. Buyer hereby grants Seller a non-exclusive, irrevocable, non-transferable, royalty-free, world-wide license under all Intellectual Property Rights solely to use and access any data stored on the Equipment on an aggregate basis to provide the Services and utilize in the course of research and development. Seller represents that no data stored by the Equipment or accessible to the Seller is Personally Identifiable Information, as such term is used in the Health Information Portability and Privacy Act and the Health Information Technology for Economic and Clinical Health Act.
9. TITLE AND RISK OF LOSS. Title and risk of loss passes to Buyer upon delivery of the Products at the Delivery Point. As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Massachusetts Uniform Commercial Code.
10. BUYER’S ACTS OR OMISSIONS. If Seller’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Seller shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
11. LIMITED WARRANTY.
a. Seller makes only those warranties set forth in the User’s Guide, with all limitations set forth therein.
b. Buyer acknowledges that some Goods purchased by Buyer under these Terms are manufactured by a third party (“Third-Party Goods“). Seller agrees to pass through to Buyer any warranty of Third-Party Goods provided by the third party to the fullest extent possible. For the avoidance of doubt, Seller makes no representations or warranties with respect to any Third-Party Products.
c. Seller warrants to Buyer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
d. EXCEPT FOR THE WARRANTIES SET FORTH IN THE USER’S GUIDE, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE EQUIPMENT OR SERVICES, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
e. The Seller shall not be liable for a breach of the warranties set forth in the User’s Guide or Section 11(c) of these Terms unless: (i) Buyer gives written notice of the defective Products or Services, as the case may be, reasonably described, to Seller within 3 days of the time when Buyer discovers or ought to have discovered the defect; (ii) Buyer follows all procedures set forth in Section 17.1 of the User’s Guide relating to the warranty; and (iii) Seller reasonably verifies Buyer’s claim that the Equipment or Services are defective.
f. The Seller shall not be liable for a breach of the warranty set forth in the User’s Guide or Section 11(c) of these Terms if: (i) Buyer makes any further use of such Equipment after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment; or (iii) Buyer alters or repairs such Equipment without the prior written consent of Seller.
g. Subject to Section 11(e) and Section 11(f) above, with respect to any Services subject to a claim under the warranty set forth in Section 11(c), Seller shall, in its sole discretion, (i) repair or re-perform the applicable Services or (ii) credit or refund the price of such Services at the pro rata contract rate.
h. THE REMEDIES SET FORTH IN SECTION 11(g) AND SECTION 11(h) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN THE USER’S GUIDE AND SECTIONS 11(c), RESPECTIVELY.
12. LIMITATION OF LIABILITY.
a. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
b. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS AND SERVICES SOLD HEREUNDER.
c. The limitation of liability set forth in Section 12(b) shall not apply to death or bodily injury resulting from Seller’s gross negligence or willful misconduct.
13. INDEMNIFICATION.
a. Buyer agrees to be bound to the indemnification provisions set forth in Section 17.1 of the User’s Guide.
b. Buyer further agrees to indemnify and hold Seller harmless from and against any and all actions, suits, liabilities, claims, fines, damages, losses or expenses, including but not limited to all attorney’s fees and expenses of litigation (“Losses”) resulting from Buyer’s breach of any representation or warranty made in these Terms, including, but not limited to those set forth in Section 1(c) of these Terms.
14. TRANSFER OF EQUIPMENT. At no time shall the Buyer, without the advance written consent of the Seller: (i) move the Equipment from the Facility to a different facility, whether owned by Buyer or a third-party; (ii) sell the Products to a third party; or (iii) donate the Products to a third party (each a “Transfer”). Buyer shall submit notice of any proposed Transfer to the Buyer at least 30 days prior to the proposed date of such Transfer. Such notice shall include the name of the transferee, the physical address of the transferee facility, the proposed transfer price and the contact information, including email and phone number, of the proposed transferee. Seller shall at all times have a right of first refusal for any sale or donation of the Equipment at the proposed transfer price, which it may exercise for thirty (30) days after receipt of a notice submitted by the Buyer.
15. COMPLIANCE WITH LAW. Buyer shall comply with any applicable domestic or foreign law, rule, regulation, order, or other action, decree, requirement, or guideline published or in force at any time which governs or regulates any person or entity (including any party or any affiliate thereof), property, transaction, activity, event or other matter, including those issued by any regulatory authority, that relates to or governs the use of the Products (the “Applicable Law”). Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement and the User’s Guide and use the Products. Buyer shall comply with all export and import laws of all countries involved in the sale of the Products under these Terms or any resale of the Products by Buyer. Buyer assumes all responsibility for shipments of Products requiring any government import clearance. Seller may terminate these Terms if any governmental authority imposes antidumping or countervailing duties or any other penalties on the Equipment or Goods.
16. NON-DISCRIMINATION. For Services performed and Products provided in the United States, Seller’s obligations include compliance with: (a) the Equal Opportunity clause in Section 202, Paragraphs 1 through 7 of Executive Order 11246, as amended; (b) Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. §793, as amended; (c) Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974, 38 U.S.C. §§4211-12; (d) the Americans with Disabilities Act of 1990, 42 U.S.C. §§12101, et. seq., as amended, relating to equal employment opportunity; and (e) the implementing Rules and Regulations of the Office of Federal Contracts Compliance Programs as set forth in 41 C.F.R. Chapter 60; all of which are incorporated herein by specific reference.
17. EXPORT CONTROL.
a. Seller acknowledges that the export and re-export of certain commodities and technical data are subject to Applicable Laws that prohibit or limit exports, transfers or services for certain uses or to certain countries or end users, including the U.S. International Traffic in Arms Regulations and the laws of any European regulatory authority or any regulatory authority of the country in which the Facility is located (collectively, “Export Control Laws”).
b. Buyer will be responsible for, and will coordinate and oversee, compliance with Export Control Laws for such items exported, imported or transferred as part of the performance of the Services or provision of the Products. Seller will not, either directly or indirectly, do business in or with embargoed countries or entities or individuals sanctioned under Export Control Laws.
18. ANTI-CORRUPTION AND ANTI-BRIBERY
a. Neither Buyer, its affiliates, their personnel, or representatives have engaged, or will engage, in any corrupt, fraudulent, unfair or deceptive practices in connection with this Agreement or any other business transactions involving Seller, including directly or indirectly offering or providing to a person (including any political party, public official, regulatory authority or other government-related entity) a contribution, gift, bribe, loan, kick-back, payment of money or other benefit, regardless of form, for the purpose of influencing any act, decision or failure to act by such person or to secure an improper advantage to obtain, retain or direct business.
b. Buyer will comply with, and will cause its affiliates, their personnel, representatives and subcontractors to comply with, all Applicable Laws concerning anti-bribery and anti-corruption, including the United States Foreign Corrupt Practices Act and any corruption or anti-bribery laws of the country in which the Facility is located and (collectively, “ABAC Laws”). Buyer represents that none of its affiliates, personnel, representatives or subcontractors have taken any action in connection with this Agreement or any other business transaction involving Seller that would constitute a violation of any ABAC Laws.
c. Buyer warrants and represents to Seller that neither Buyer nor its affiliates have any undisclosed direct or indirect business or personal, financial or other interest, in any person that would conflict with, or influence in any manner or degree, the selection of Seller or the purchase of Products or Services. Buyer further warrants and represents that neither Buyer nor its affiliates have any undisclosed relationship with any of Seller’s personnel who is in any manner involved in the selection of Seller or the purchase of Products or Services.
19. SANCTIONS
a. Buyer will comply with, and will cause its affiliates, their personnel, representatives and subcontractors to comply with, all Sanctions Laws in connection with their respective business engagements. “Sanctions Laws” means (a) the United States Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons List, the United States Department of State’s Designated Foreign Terrorist Organizations List, and any similar restrictions published by the United Nations or any United States or European regulatory authority or any regulatory authority of the country in which the Facility is located regarding terrorism sanctions; or (b) any sanction, directive or other action by any United States, European or other nation’s regulatory authority regarding terrorism or money laundering.
b. Buyer represents that it has implemented, and will continue at all times to verify and maintain, appropriate programs, policies, and internal controls consistent with industry standards to ensure that all of its partners, joint venturers, subcontractors and other applicable third parties with whom it does business have been screened against, and are not: (a) identified on any list or schedule maintained under any Sanctions Laws; or (b) the target of any sanction, directive or other action under any Sanctions Laws.
20. TERMINATION. In addition to any remedies that may be provided under this Agreement, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of this Agreement, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
21. WAIVER. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
22. CONFIDENTIAL INFORMATION. All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party. Buyer Confidential Information includes Buyer Data.
23. DATA. “Buyer Data” means all data and data files, including personally identifiable information, that is obtained by or that resides on the Equipment as a result of Buyer’s use of the Equipment and Goods. Buyer owns the Buyer Data and any Intellectual Property Rights relating thereto. Notwithstanding anything to the contrary in this Agreement, in connection with the Services provided hereunder, Seller may collect and compile aggregated and anonymized data and information, including scan data, based on information obtained by Buyer through its use of the Equipment and Goods (“Aggregated Data”) and use such Aggregated Data in the normal operation of Seller’s business, including for performance investigation purposes (e.g., Buyer reports of Product variations), to compile statistical and performance information related to Product improvement and development and the provision and operation of Buyer’s Services. As between Seller and Buyer, all right, title, and interest in Aggregated Data, and all intellectual property rights therein, belong to and are retained solely by Seller. Buyer agrees that Seller may (i) make Aggregated Data publicly available in compliance with applicable law, and (ii) use Aggregated Data to the extent and in the manner permitted under applicable law, provided that such Aggregated Data do not identify Buyer, Buyer’s Confidential Information, any individual or Buyer client.
24. FORCE MAJEURE. The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 180 days, Buyer shall be entitled to give notice in writing to Seller to terminate this Agreement.
25. ASSIGNMENT. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
26. RELATIONSHIP OF THE PARTIES. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
27. NO THIRD-PARTY BENEFICIARIES. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
28. GOVERNING LAW. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Massachusetts or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Commonwealth of Massachusetts.
29. SUBMISSION TO JURISDICTION. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the Commonwealth of Massachusetts in each case located in the City of Boston and County of Suffolk, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
30. NOTICES. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
31. SEVERABILITY. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
32. SURVIVAL. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction and Survival.
33. AMENDMENT AND MODIFICATION. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.
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