Effective beginning January 1, 2021
SYSTEM TERMS AND CONDITIONS
These System Terms and Conditions (these “System Terms”) are a part of and incorporated into that certain 7D Surgical System Agreement (the “Agreement”). Capitalized terms used in these System Terms not otherwise defined in these System Terms shall have the meanings given them in Section 1 of the Agreement.
1. Software. The software enabling image guidance for use with 7D Systems (“7D Software”) is not sold but only licensed to Purchaser on a royalty-free, non-transferable, nonexclusive and perpetual (except as provided below) basis only for Purchaser’s own internal use and only with 7D Systems. Portions of the 7D Software may be subject to open standards-based technology and accompanied by notices and/or open source licenses that govern the use of those portions and which are not altered by any licenses granted herein. The 7D Software and/or data contained in or delivered for use in connection with the 7D Systems are trade secrets and/or confidential information of 7D and Purchaser shall treat them in the same manner as it treats its own trade secrets and confidential information and shall not disclose same to any third parties without the prior written consent of 7D. Purchaser shall not copy, modify or reverse engineer the 7D Software and shall prevent third party access to the 7D Software. 7D may terminate the license for the 7D Software (i) 30 days after notice by 7D to Purchaser in the event of any breach by Purchaser of any term of these System Terms or other terms and conditions of the Agreement, unless Purchaser remedies such breach within such 30 day period; and (ii) immediately after notice by Purchaser to 7D that Purchaser has discontinued use of 7D Systems and/or 7D Software.
2. Confidential Information. Purchaser acknowledges that, in the course of purchasing or using 7D Systems, Purchaser may have access to and be entrusted with confidential information and trade secrets relating to 7D. The term “confidential information” includes information relating to 7D Systems or the business or affairs of 7D, the terms of the Agreement, or any other information marked or otherwise identified as confidential or proprietary to 7D or that is reasonably identifiable as confidential based on its nature and/or the circumstances of its disclosure. For clarification only, confidential information shall include, but not be limited to, information provided verbally. Purchaser agrees with 7D that Purchaser shall not use any confidential information for any purpose, or disclose any confidential information to any person, other than employees of Purchaser who are directly involved in the operation of the 7D Systems and on a need-to-know basis. Purchaser’s obligations under Section 2 of these System Terms shall survive termination of the Agreement. For the improvement of 7D Systems and Support Services, 7D shall be entitled to collect statistical data stored on any 7D Systems. This data will be stored anonymously and used exclusively for internal purposes, and both 7D and Purchaser undertake to observe all applicable data protection and privacy regulations. Purchaser shall prevent accidental access to patient data and other protected data.
3. Use of Products. Purchaser represents and warrants that it is buying the 7D Systems for its own use and that it will not sell, transfer, lease or give up possession of all or any part of the 7D Systems or 7D Software to any party, or attempt to do the same. Purchaser warrants that it is under no obligation to any other entity that is in any way inconsistent with carrying out its responsibilities under these System Terms. Purchaser shall not take any steps to copy, reverse engineer, disassemble or decompile any 7D System or the 7D Software or any aspect thereof, and shall not permit others to do so. Purchaser is responsible for providing a clean operating environment of suitable temperature and humidity pursuant to written specifications provided by 7D. Purchaser will not use any 7D System or 7D Software except in accordance with applicable law, and Purchaser is responsible for ensuring that all users of 7D Systems have the requisite skill and legal authorization to use a 7D System. Purchaser acknowledges and agrees that 7D personnel are not licensed medical personnel and do not practice medicine.
4. Intellectual Property. Any and all interest whatsoever in the Intellectual Property (as defined below) is and shall remain the exclusive property of 7D and Purchaser shall not acquire any right, title or interest therein. “Intellectual Property” means any or all of the following that relate to and/or claimed in relation to 7D Systems and/or 7D Software (a) all patents, certificates of invention, applications for certificates of invention, priority patent filings and patent applications and any renewals, divisionals, continuations (in whole or in part), reissues, reexaminations, extensions, substitutions, confirmations, registrations, revalidations, revisions, and additions of or to any of the foregoing, and any and all foreign equivalents of the foregoing; (b) any proprietary data, results, material(s), technology, and nonpublic information of any type whatsoever, in any tangible or intangible form, including know-how, including devices, techniques, practices, processes, methods, trade secrets, inventions (whether or not patentable and whether or not reduced to practice), formulae, developments, specifications, procedures, tests, data, results, analyses, documentation, and reports, in each case that are not publicly known; (c) works of authorship and copyrights; and (d) intellectual property rights in any or all of the foregoing.
5. Warranty. 7D warrants to Purchaser that the hardware products and 7D Software forming the 7D System will be free from defects in material and workmanship, under normal use and in substantial compliance with operational features of 7D’s published specifications at the time of sale and for a period of 12 months from the date the 7D System is accepted by Purchaser pursuant to Section 8 of these System Terms (Specifications and Acceptance). In the event that any malfunction occurs, Purchaser shall immediately cease using the applicable 7D System and immediately inform 7D thereof, and Purchaser shall not resume use of such 7D System before the malfunction has been eliminated. 7D’s obligations under this warranty shall be limited to repairing or replacing (at 7D’s option) the applicable 7D System or the defective portion(s) thereof. Repair or replacement parts provided as a result of this warranty carry the same warranty set forth herein for the unexpired portion of the original warranty period. Any original parts removed and/or replaced during any repair process shall become the property of 7D. This warranty shall apply only to Purchaser (that is, the original purchaser of the 7D System from Supplier). The obligations of 7D set forth in this warranty are conditioned upon proper handling, storage, use and maintenance of the 7D System by Purchaser, as well as compliance with any applicable recommendations of 7D. Without limiting the generality of the foregoing, this warranty shall not apply to, and 7D shall have no liability whatsoever, for defect or damage resulting from fire; misuse; abuse; accident; neglect; improper installation; improper or lack of care and/or maintenance; Purchaser or third-party supplied software or hardware; modification or repair that is not authorized by 7D; failure of Purchaser to immediately report any malfunction of a 7D System or continuous use of the 7D System after occurrence of any such malfunction; power fluctuations; operation of hardware products outside of environmental specifications; permitting any substance whatsoever to contaminate or otherwise interfere with optics; or any other cause beyond the control of 7D. The obligations of 7D set forth in this warranty are further conditioned upon Purchaser immediately notifying 7D of any malfunction; if requested by 7D, promptly making the 7D System and 7D Software available for repair or replacement; and 7D being given reasonable opportunity to investigate all claims and Purchaser’s cooperation in any such investigation. In the event 7D requests that any product is returned to 7D, such product shall be packed in containers approved in writing by 7D.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, 7D HEREBY DISCLAIMs ANY AND ALL OTHER REPRESENTATIONS, WARRANTIES, TERMS AND CONDITIONS OF ANY KIND, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR USE OR PARTICULAR PURPOSE. OTHER THAN AS SET FORTH IN THESE SYSTEM TERMS, 7D NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON (INCLUDING SUPPLIER AND/OR ITS AND THEIR REPSECTIVE EMPLOYEES, INDEPENDENT CONTRACTORS, DISTRIBUTORS, REPRESENTATIVES AND AGENTS) TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE, INSTALLATION OR USE OF 7D SYSTEMS OR 7D SOFTWARE.
6. Software Updates. The 7D Software may be eligible for updates solely to the extent such updates relate to fixes with respect to bugs or errors associated with the 7D Software. Any such software updates will become subject to the warranty set forth in Section 5 of these System Terms for the unexpired portion of the original warranty period, if any. Anything to the contrary contained herein notwithstanding, 7D does not warrant that the 7D Software, or any aspect thereof, will be error-free or bug-free or that the use of 7D Software will be uninterrupted.
7. Liability. Notwithstanding any other provision hereof, the total aggregate liability of Supplier and 7D (and each of their respective suppliers, licensors, employees, independent contractors, distributors, representatives and agents) in contract, tort (including negligence and breach of statutory duty), misrepresentation or otherwise arising in connection with or resulting from the manufacture, sale, delivery, resale, repair, replacement or use of any 7D System or 7D Software or otherwise arising in any way out of or relating to the Agreement is limited to the purchase price allocable to the product(s) which give rise to such claim. Neither Supplier nor 7D is liable for any indirect, incidental, special or consequential loss or damage (including but not limited to loss of data, profits, business, goodwill or otherwise) or any claims of third parties, regardless of the theory of damages or legal theory (whether contract, tort, fault, negligence, gross negligence, warranty or otherwise) and whether or not Supplier and/or 7D has been advised of the possibility of such damages and regardless of the failure of an essential purpose of any warranty or limited warranty. The foregoing limitations and exclusions of liability shall apply whether or not any such damages are construed as arising from a breach of a representation, warranty, guarantee, covenant, obligation, condition or fundamental term of these System Terms or other terms and conditions of the Agreement. Purchaser agrees to defend, indemnify and hold harmless each of Supplier and 7D (and each of their respective suppliers, licensors, employees, independent contractors, distributors, representatives and agents) from and against any and all liabilities, judgments, awards, settlements, losses, damages and expenses in connection with any third party claim, suit or other action arising from (i) the negligence or willful misconduct of Purchaser or any of its directors, officers, employees, staff, personnel or other representatives or agents; or (ii) the use, operation, service, or modification of any 7D System contrary to the Agreement or relevant manuals, written warnings, automated warnings, instructions by 7D personnel or applicable laws or regulations.
8. Specifications and Acceptance. Unless otherwise agreed to in writing, 7D will provide 7D Systems and 7D Software in material accordance with its standard product specifications in effect as of the Effective Date. Specifications are subject to change by 7D without notice. Minor variations in the components or fabrication of the 7D System or 7D Software shall not give rise to any claim by Purchaser for defect or default. As soon as reasonably practicable after delivery and installation of each 7D System, Purchaser shall verify acceptance of such 7D System and related 7D Software by signing 7D’s acceptance protocol documentation, and Purchaser agrees that signature of a healthcare professional involved or responsible for use or receipt of a 7D System and/or 7D Software shall be legally binding on Purchaser and such signed acceptance shall become part of these System Terms. Acceptance shall not be refused because of minor problems that do not materially affect the suitability for use of the 7D System or 7D Software. Purchaser shall notify 7D of Purchaser’s discovery of any defects in a 7D System or related 7D Software and its rejection thereof prior to acceptance and in any event within 15 days after delivery of such 7D System, failing which Purchaser shall be deemed to have accepted such 7D System and related 7D Software. The acceptance of a 7D System and/or 7D Software will not be subject to any clinical testing or use or patient treatment and any such clinical testing or use or patient treatment will result in the deemed acceptance of such 7D System and related 7D Software by the Purchaser. Anything to the contrary contained herein notwithstanding, any obligation of 7D relating to the warranty set forth in Section 5 (Warranty) is subject to and conditioned on (and support and service will not commence until) acceptance of the applicable 7D System and related 7D Software as set forth herein.
9. Events Beyond Control. Neither Supplier nor 7D shall be in breach of any of its obligations for failure to perform or delay in performing any obligation, wholly or in part, directly or indirectly, due to the occurrence of an “Act of God”, act of public enemy, act of governmental body or agency, foreign or domestic, terrorism, sabotage, riot, fire, flood, typhoon, explosion or other catastrophe, epidemic or quarantine restriction, labor unrest or shortage, accident, freight embargo, delay occasioned by carriers or delay of suppliers of Supplier and/or 7D or because of any other event beyond the control of Supplier and/or 7D, for the period of time occasioned by any such occurrence.
10. General Provisions. Any dispute between Supplier and 7D, on one hand, and Purchaser, on the other hand, including under these System Terms, shall be governed by and interpreted in accordance with the laws of the State of New York. Each of Supplier and 7D, on one hand, and Purchaser, on the other hand, hereby attorn irrevocably but non-exclusively to the jurisdiction of the courts of such State. It is expressly agreed by Supplier and 7D, on one hand, and Purchaser, on the other hand, that, to the extent permitted by applicable law, the United Nation’s Convention on International Sale of Goods (CISG) (and any other similar sale of goods or international sale of goods legislation in any applicable jurisdiction) does not apply to and is expressly excluded from these System Term. These System Terms are not intended to nor shall they be construed to be an agreement for the benefit of any third party. If any provision of the Agreement is held to be invalid or unenforceable, the remainder of the provisions of the Agreement will remain in full force and effect. If a party waives any provision of the Agreement, it will not be deemed to have waived that provision at any other time or to have waived any other provision. The Agreement will be binding upon, inure to the benefit of, and be enforceable by the respective permitted successors and assigns of the parties hereto. Purchaser may not assign its rights and obligations under the Agreement without the prior written consent of Supplier. Supplier may freely assign the Agreement or its rights or obligations under the Agreement to any affiliate, successor-in-interest, or third party. Any notice required or permitted to be given or made under the Agreement by either party shall be in writing and delivered to the other party at its address (a) with respect to Purchaser, as indicated on the cover page to the Agreement; and (b) with respect to Supplier, as indicated in Section 10(c) of the Agreement Terms and Conditions (Notices) by courier or by registered or certified airmail, postage prepaid, courier service, or by facsimile, which facsimile is promptly confirmed, in writing, by registered or certified airmail, postage prepaid. All notices shall be effective as of the date received by the addressee. If there are differences in meaning between the English version of the Agreement and any translation or other version thereof, the English version shall prevail. The Agreement sets forth the entire agreement among the parties with respect to the subject matter thereof and supersedes all previous agreements, whether written or oral. The Agreement may be expressly incorporated by reference into one or more additional future written agreements signed by the parties. The Agreement may be executed in one or more counterparts, (including by way of facsimile) each of which when so executed and delivered shall be deemed to be an original, and all such counterparts shall together constitute one and the same agreement.