Terms of Sale Equipment, Service, and Software Products
1. Purchase Price. The purchase price for Equipment Products and Service Products and the license fee for Software Products shall be as set forth in the attached Spacelabs Customer Quote. Such price assumes delivery of Equipment within 12 months, shipped FOB manufacturing facility. Prices do not include taxes, shipping and handling, or insurance, which are the responsibility of Customer.
2. Payment Terms. Thirty (30) days after date of invoice. Customer agrees to pay collection expenses and legal fees incurred by Spacelabs in collecting past due balances.
3. Terms of Agreement. Any additional or different terms, including terms in any Customer purchase order, will be of no effect unless agreed to by Spacelabs in writing.
4. Customer Reporting. Customer agrees to properly report and disclose any discounts granted by Spacelabs to Customer on the purchase of Products, to the extent required by applicable state or federal law.
5. Confidentiality. Each party agrees to keep the other party’s business, technical and proprietary information, including Product pricing, confidential. Each party shall not use such information except as necessary for the performance of this Agreement, and shall not disclose such information except as required by law. Each party shall limit disclosure of such confidential information only to those of its employees and contractors who have a need to know the information and are bound by confidentiality obligations as regards the information that are similar to those stated herein. Upon cancellation of this Agreement or return of the Products, each party will return to the other party all such proprietary information.
6. Liability. Neither party, nor any third party author of Software, shall be liable to the other or to any third party for any incidental, indirect, special or consequential damages in connection with this Agreement or in connection with the use of the Products. Customer shall at all times maintain the necessary backup and security for any and all data and application software used with the Products, and shall be responsible for any loss of any such data or application software.
7. Software License
(a) License. The term “Software” includes firmware, standalone software, and updates or new versions of such software as are provided by Spacelabs to Customer. Spacelabs grants Customer a perpetual, nontransferable and nonexclusive license to install and use the Software Product in machine readable executable object code on the equipment for which it was designated by Spacelabs in accordance with the Software Product’s documentation and the quotation. Customer is entitled to use the Software Product only on a single computer or terminal at any one time, unless otherwise authorized by Spacelabs.
(b) Limitations. No title to or ownership of Software or the patent, copyright, trademark, trade secret or other proprietary rights to such Software Product is transferred to Customer. Customer shall not copy, trace, disassemble, decompile, modify or reverse engineer such Software Product. Customer shall not take any action in violation of Spacelabs’ or any third party author’s copyright or other intellectual property rights in the Software Product. Customer has no right to sublicense the Software Product. Spacelabs may terminate any license granted hereunder if Customer breaches its obligations under the terms of this Agreement. Upon termination, Customer must destroy or return all copies of the Software Product, including copies.
(c) U.S. Government Rights. If this Software Product is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the U.S. Government (and any prime contractor or subcontractor at any tier) hereby acknowledge and agree that this Software Product and any associated documentation qualifies as “commercial items” (see FAR 2.101), and as “commercial computer software and documentation” (FAR 12.212, FAR 27.405-3(a) (Dec 2007); DFARS 227-7202 (Jun. 1995). The rights in the Software Product and accompanying documentation shall be strictly construed in accordance with the terms and conditions set forth in this License, which shall supersede any conflicting contractual terms or conditions. See FAR 12.212, FAR 27.405-3(a) (Dec 2007); DFARS 227-7202 (Jun. 1995). The object code of the Software Product and documentation are copyrighted and published products of Spacelabs (except source code, which is copyrighted but unpublished), and all rights not granted expressly herein are reserved.
(d) Upgrades. Should Customer receive any copy of the Software Product to upgrade a previous version of such Software Product, such upgraded version of the Software Product shall be the only version Customer is entitled to use unless otherwise agreed and, unless expressly otherwise permitted by Spacelabs, Customer shall destroy or erase all program material and related documentation, including all copies and modifications, relating to the previous Software Product.
(e) Infringement Claims. If any third party alleges in a claim against Customer that all or a part of the Software Product licensed hereunder as used within the scope of the license infringes any intellectual property rights in the country in the territory of Customer’s domicile or main place of business (the Indemnified Claim”), Spacelabs will defend the Indemnified Claim at its expense and will hold Customer harmless against any judgment with respect thereto. This defense and indemnification obligation is contingent upon (i) Customer giving Spacelabs prompt written notice of any claim; (ii) Spacelabs being granted control of the defense, compromise or settlement of such claim, and (iii) Customer’s assistance to the extent reasonably required for such defense. In the event Spacelabs receives information concerning an intellectual property infringement claim (including an Indemnified Claim) related to the Software Product it may, at its expense and without obligation to do so, upon notice to Customer to cease use of the allegedly infringing Software Product, either: (i) procure for Customer within a commercially reasonable period of time the right to continue to use the allegedly infringing Software Product, (ii) replace or modify the Software Product to make it non-infringing, or (iii) repay the fees paid to Spacelabs for such Software Product.
(f) Liability Limitations. Spacelabs shall have no liability for any intellectual property infringement claim based on Customer’s (i) use of the Software Product after the Spacelabs’ notice that the Customer should cease use of the allegedly infringing Software Product; (ii) combination of the Software Product with a product, program or data not authorized by Spacelabs; or (iii) adaptation or modification of the Software Product. For all claims described in this section Customer agrees to indemnify and defend Spacelabs, its affiliates and suppliers from and against all damages, costs and expenses, including reasonable attorneys’ fees.
8. Product Warranty.
(a) Initial Coverage.
(i) New Hardware Products. New Hardware Products manufactured by Spacelabs will be free from defects in material and workmanship and will perform according to the written specifications for the Products for a period of twelve months from delivery.
(ii) Software Products: Spacelabs warrants that it either owns or has the right to license the Software Product. Spacelabs further warrants that (i) the Software Product shall perform in accordance with the specifications contained in Spacelabs’ documentation for the Software Product at the date of delivery, (ii) the media manufactured by Spacelabs on which Software Product operates shall be free from defects in material and workmanship under normal use for a period of ninety (90) days from the date of delivery thereof by Spacelabs, and (iii) the media not manufactured by but delivered by Spacelabs on which the Software Product operates will be in accordance with the media manufacturer’s warranty.
(iii) Spare Parts: “Spare Part(s)” mean replaceable spare parts used in the Equipment Products and listed in the Spacelabs Spare Parts Price List. Spare Parts do not include disposable or user parts that must be routinely replaced, items listed in the Supplies and Accessories Price List, or computer products or peripheral devices not manufactured by Spacelabs or produced on Spacelabs’ behalf. Any original Spare Part for which Spacelabs has supplied a replacement Spare Part shall become the property of Spacelabs Spare Parts shall be free from defects in material and workmanship for 120 days. Spacelabs reserves the right to us a refurbished part as a replacement spare part.
(iv) Supplies and Accessories: Single patient use, disposable or consumable supplies and accessories will be free from defects in material and workmanship at the time of delivery. All other supplies and accessories shall be free from defects in material and workmanship for three (3) months from the date of delivery unless otherwise specified.
(v) Third Party Products. Products manufactured by third parties shall carry the warranties given by such third party manufacturer.
(b) Conditions and Limitations. For the warranty to apply, Spacelabs must witness or be able to reproduce the defect. Spacelabs’ warranties and obligations will not apply in the event of: misuse or abuse of Products by Customer; defects caused by normal wear and tear or deterioration of the Products, installation, repair or alteration of Products by persons not authorized by Spacelabs (Customer’s biomedical engineering staff will be deemed authorized personnel to repair a Product upon successful completion of Spacelabs technical training for the Product), defects caused or contributed to by a product, software or part not originating from Spacelabs failure of Customer to maintain Products according to the Product documentation, or failure to install the most recent no cost, mandatory software update within 120 days after release by Spacelabs. Spacelabs obligation and liability under any warranty is limited to (i) repair or replacement of defective Products; or (ii) if the Products are not repaired or replaced in a reasonable time, credit for the defective Product’s purchase price upon return of the defective Product to Spacelabs. Customer must obtain a return of goods authorization including packaging and shipping instructions from Spacelabs before Products can be returned for warranty service or adjustment. Spacelabs’ warranty as regards Software Products does not apply if the Software Product is used in violation of the licensing terms stated herein. SPACELABS MAKES NO OTHER WARRANTY OF ANY KIND WHATEVER, EXPRESS OR IMPLIED, AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED BY SPACELABS.
(c) Customer Responsibilities during Warranty Coverage.
(i) Customer shall ensure appropriate biomedical and nursing personnel participate in Spacelabs biomedical and clinical education training and provide training to peers, as appropriate. Prior to implementation of the Spacelabs products, Customer shall have developed and implemented a process to handle first call response within their biomedical, nursing and information technology teams.
(ii) Customer shall make appropriate resources available to facilitate resolution of any issue that may arise during the warranty period.
(iii) If Customer cannot resolve an issue with reasonable and good faith efforts, promptly telephone the Spacelabs Technical Support Team regarding such issue, then work cooperatively with Spacelabs Technical Support Team to troubleshoot issue and facilitate resolution. If field service is needed, Customer shall provide Spacelabs field service engineers with appropriate contact information and reasonable support in its resolution of the matter.
(iv) Customer shall provide Spacelabs with advance notification of any planned system changes that may impact the Spacelabs Software Products.
(v) Customer is responsible for the support of all non-Spacelabs equipment used in conjunction with the Spacelabs Products, including but not limited to non-Spacelabs computer hardware, operating systems and network cabling, routers, and switches.
(d) Description of Warranty Coverage.
(i) Telephone Support. Spacelabs shall provide reasonable telephone support in the operation, planned maintenance and corrective maintenance of Products covered by the Agreement. Spacelabs does not warrant that telephone support alone will be sufficient to resolve Product issues.
(ii) Remote Diagnostics Support. Spacelabs shall, subject to all necessary software, hardware and phone lines being installed at Customer’s site, provide reasonable remote dial-up support in the corrective maintenance of the Products. Spacelabs does not warrant that such support alone will be sufficient to resolve Product issues.
Customer may choose in any particular instance one of the following two types of corrective maintenance coverage:
(iii) Corrective Maintenance Onsite Coverage. If Product issues cannot be resolved telephonically through good faith efforts of the parties, Spacelabs shall, upon Customer’s request and between 8:30 am and 5:00 pm local time Monday through Friday (holidays excluded), provide any travel, accommodation, labor and Spare Parts required to complete, at Customer’s site, required corrective maintenance. Customer agrees to promptly notify Spacelabs in writing or by phone of any Product failure which may require corrective maintenance.
(iv) Corrective Maintenance—Return to Depot CM Labor Coverage. If Product issues cannot be resolved telephonically through good faith efforts of the parties, Spacelabs shall, upon Customer’s request and between 8:30 am and 5:00 pm local time Monday through Friday (holidays excluded), provide at Spacelabs’ site any labor and Spare Parts needed to complete required corrective maintenance. Customer agrees to promptly notify Spacelabs in writing or by phone of any Equipment failure which may require corrective maintenance and secure an RMA number to facilitate the Equipment’s return. Customer shall be responsible for all freight and insurance charges in shipping the Products to Spacelabs; Spacelabs shall pay all return shipment costs. Risk of loss shall pass to Spacelabs upon receipt of the Product.
(v) Subsequent Warranty Agreed Coverage. After the expiration of the warranty set forth above, Customer will receive the amount of Depot Repair coverage identified in the Customer Quote on Spacelabs standard terms for same. Such additional coverage shall be provided for any Spacelabs Product that is not a Spare Part or on Spacelabs Supplies and Accessories Price List. Depot Repair coverage shall be provided as described above under Corrective Maintenance—Return To Depot CM Labor Coverage. Telephone support and remote diagnostic support shall also be provided.
9. Product Installation and Training. Spacelabs shall provide installation and training services in accordance with and to the extent of Spacelabs’ then current installation and training policies.
10. Return Goods and Restocking Charges. Return of equipment must be approved in writing by Spacelabs prior to return and must take place within twelve months of shipment. Products which Spacelabs agrees may be returned for Customer convenience will be charged a restocking fee of 20% if returned within the first six months after shipment, and 40% for the seventh through twelfth month.
11. Service Specific Terms.
(a) The service is in addition to, and not a substitute for, routine equipment maintenance. It is Customer’s responsibility to strictly follow the routine maintenance instructions provided by Spacelabs in the equipment and operations manuals and accompanying labels and/or inserts for each item of equipment, as failure to comply may result (as determined by Spacelabs in its sole discretion) in increased charges pursuant to the agreement, loss of coverage under the agreement, and/or loss of warranty coverage for such equipment. Customer must ensure that all equipment made available for service and all spare part(s) returned to Spacelabs are free of biological hazard materials; Spacelabs will have no obligation to perform service or accept returned spare part(s) unless this condition has been satisfied.
(b) Products will be included for service only after Spacelabs has determined that the Product is in good operating condition and eligible for coverage hereunder. If Spacelabs determines that preliminary service or initial repairs are required, Spacelabs shall advise Customer of same and separately invoice Customer for such preliminary service or initial repairs at Spacelabs’ then current list prices/rates for time and materials.
(c) The term of the Service Product is for the period shown in the Customer Quote; provided, however, that Spacelabs shall not be obligated to provide Service until it receives advance payment for the billable period set forth on the face hereof. All payments received in respect of Service provided shall be nonrefundable.
(d) Either party may terminate the Service Product in the event the other party is in default of any of that party’s obligations as regards the Service Product and such default remains uncured 30 days after receipt of notice of such default.
(e) Customer may terminate the Service Product for convenience, with or without cause, by provision of thirty days written notice to the other party.
(f) Spacelabs shall not be obligated to provide any services or spare parts requested to upgrade the Products from the applicable specification at the time of purchase, or for cosmetic reasons, or made necessary in whole or in part by improper use, abuse, neglect, negligence, accident, catastrophe, acts of God or any malfunction resulting from faulty maintenance, improper repair, damage and/or alteration by anyone other than Spacelabs.
(g) Billable Service. Spacelabs shall not provide any service or maintenance not covered under this Agreement unless a prior written agreement regarding the same exists between Customer and Spacelabs.
11. Export Controls. Products and Product Software reflected in this Customer Quote are sold or licensed to Customer subject to the U.S. export control laws and regulations (the “Export Control Laws”). Customer shall not export Products or Product Software in contravention of such Export Control Laws.
12. Cooperation. Customer shall cooperate in every respect with Spacelabs to enable Spacelabs to perform its obligations under this Agreement. Spacelabs reserves the right to invoice Customer for service if Equipment is not available for service at the agreed upon time and place.
13. Governing Law; Jurisdiction. The agreement between the parties regarding the Products shall be governed by and interpreted in accordance with the laws of the State of Washington, USA, without reference to its laws relating to conflicts of law. Any legal action arising out of or relating to the sale of Products shall be brought only in the state and federal courts located in King County, Washington, and the parties irrevocably consent to the jurisdiction and venue of such courts.