Standard Terms and Conditions of Sale
Effective Date: September 27, 2024
By purchasing Hardware or services (“Services”) from the Securitas entity identified on the applicable Ordering Document (the “Seller”) or signing an agreement incorporating or referencing these Standard Terms and Conditions of Sale (“STCs”), Client agrees to be bound by and accept the terms and conditions contained in these STCs.
These STCS, the Ordering Document, the EULA (if applicable), any applicable Product/Service-Specific Term, and any SOWs shall comprise the entire agreement between Client and Seller relating to Client’s purchase of the Hardware, Software licenses, and Services specified in the Ordering Document (collectively, the “Agreement”). If Client has signed a formal written agreement between it and Seller governing its purchase of the applicable Hardware, Software licenses, or Services, that written agreement shall govern Client’s purchase of such Hardware, Software licenses and Services instead of this Agreement, except as set forth in such agreement.
All Software licensed by and Cloud Services purchased by Client shall be governed by the terms and conditions of the EULA.
Seller expressly rejects any different terms or provisions contained in any Client document, and if the terms and conditions in this Agreement differ from the terms of Client’s offer, this Agreement will serve as the governing terms.
In the event of a conflict between the terms and conditions within this Agreement, the terms shall apply in the following order of precedence: (1) Ordering Document; (2) Product/Service-Specific Terms; (3) these STCs; and (4) the EULA.
1. Fees. The prices for the Hardware and the service fees for the Services (collectively, the “Fees”) purchased by Client shall be as stated in the applicable Ordering Document or statement of work (“SOW”). The Fees applicable to future purchases are subject to change by Seller without notice. Any Fees quoted by Seller shall be valid for thirty (30) days unless such quote is cancelled or revoked earlier by Seller. The Fees do not include, and Client will pay or reimburse Seller for any and all taxes (except Seller’s income taxes) and other governmental fees, assessments, duties, and charges that are payable as a result of this transaction. To avoid the imposition of sales and/or use taxes, Client must supply Seller with a “Tax Exemption Certificate” or appropriate other exemption certificate prior to shipment, otherwise Client shall remain responsible for such tax.
2. Hardware.
a. Shipping Terms; Inspection. All physical Hardware shall be shipped (a) in the United States, FOB Origin Seller’s facility, and (b) outside the United States, FCA Seller’s facility (Incoterms 2020). Delivery shall occur and title (except for licensed Software) and risk of loss shall pass to Client upon placement of the Hardware with the carrier for shipment to Client. Except as set forth in the Ordering Document, the freight terms are “Freight Prepay and ADD.” All delivery times stated in the Agreement are estimates only. Seller shall not be responsible for or incur any liability for damages, costs, or expenses (whether general, consequential, liquidated, penalty, or otherwise) due to any delay in delivery. Seller may ship Client’s order for Hardware in multiple lots, and each such lot will be paid for separately. No nonconformity or defect in any lot will constitute a breach of Client’s entire order, and any lots whose conformity and condition Client does not dispute will be paid for in accordance with these terms and conditions, regardless of any dispute concerning other shipments or undelivered Hardware.
b. Protection. Until all sums due to Seller are fully paid, Client shall keep the Hardware free from all liens, taxes, and encumbrances; shall not permit the Hardware to be removed from the premises without Seller’s written permission; shall not make any material change in the Hardware without Seller’s consent; and shall maintain the Hardware in good condition and repair, reasonable wear and tear thereof excepted. Client assumes all risk of damage to or loss of the Hardware, regardless of whether insured.
3. Services. If Client purchases Services from Seller pursuant to the Agreement, then:
a. Scope of Services. Seller shall perform the Services as described in the Ordering Document or applicable SOW. Client shall timely comply with the terms and contained in this Agreement and any SOW. Client agrees to provide all access, information, documents, items, or other materials reasonably requested or required by Seller in connection with the Services. Client further agrees to respond promptly to any Seller request for clarification, direction, information, approval, authorization, or decisions that are reasonably requested by Seller.
b. Change Orders. Changes to the Services shall require a written change order signed by authorized representatives of each party. Such changes may include changes to the scope of work, Fees, and Service schedule.
c. Prevailing Wages. Except as noted on the applicable Quote or Ordering Document, the Fees for Services are based upon Seller’s standard rates and may not meet applicable prevailing wage laws or requirements. Client represents and warrants that it identified all applicable prevailing wage laws or requirements prior to receipt of the applicable Quote or Ordering Document from Seller. Client shall be responsible for and agrees to pay Seller for all additional fees and costs associated with Seller’s compliance with any applicable prevailing wage law or requirement.
d. Acceptance of Services. Client shall have ten (10) days (unless a longer period of time is specified in the applicable SOW) following the date on which a deliverable produced during a phase is delivered to it by Seller to complete inspection and/or testing of such deliverable (the “Acceptance Period”). If Client accepts the deliverable, Client shall execute Seller’s user acceptance document. If the deliverable does not materially comply with the acceptance criteria stated in the applicable SOW, Client may reject the deliverable by providing written notice of rejection to Seller. A written notice of rejection will specify in detail the reasons the deliverable fails to meet the relevant criteria. Seller will correct any material deficiencies and will retender the deliverable to Client for review and approval as soon as reasonably practicable. Client will have the right to accept or reject the revised deliverable in accordance with the acceptance criteria and this paragraph. The process described herein shall repeat until Seller corrects all material deficiencies and the deliverable materially complies with the acceptance criteria stated in this SOW. The deliverables tendered to Client for acceptance or rejected shall be deemed accepted by Client, regardless of whether Client executes Seller’s user acceptance document, if Client does not provide written notification of rejection to Seller within the Acceptance Period, or if the deliverables are utilized for purposes other than testing. Seller shall have no obligation to return or refund for Services or deliverables that have been previously accepted by Client.
e. Disclaimer. RE-PERFORMANCE OF THE SERVICES PURSUANT TO THIS AGREEMENT SHALL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THIS AGREEMENT RELATING TO THE SERVICES.
4. Product/Service-Specific Terms. The following Hardware and Services have specific terms which are incorporated by reference and made a part of this Agreement if Client purchases the applicable Hardware or Service (the “Product/Service-Specific Terms”). The Product/Service-Specific Terms are available at (a) www.securitashealthcare.com/product-specific-terms for Hardware; and (b) https://www.securitashealthcare.com/installation-support-maintenance-terms for Services. The Product/Service-Specific Terms referenced below shall not apply if Client has not purchased the applicable Hardware or Service.
· AeroScout® Links Cloud Temperature Monitoring
· Arial® Emergency and Nurse Call System
· SpaceTrax® Inventory Management Platform
· MobileView® Software Platform and other RTLS Products
· WanderGuard® Blue Wander Management System
· Acute Care Support and Maintenance Services
· Senior Living Support and Maintenance Services
· Installation Services
5. Client’s Hardware-Related Obligations. Client is solely responsible to provide, among other items specified in the Agreement, Documentation, or statement of work (“SOW”):
a. Permanent and dedicated electrical power for the proper operation of the Hardware through Client’s own electrical power system;
b. Uninterrupted access to the site during normal business hours or whenever Seller may reasonably require it for installation, maintenance, repair, training, or other similar services contemplated under this Agreement;
c. All necessary licenses, permits, or other authorizations required by state or Federal administrative agencies for the installation, use and operation of Hardware on the Client’s premises;
d. Proper mounting foundations for the Hardware;
e. Satisfactory environmental conditions for the Hardware (e.g. temperature and humidity control) as may be specified by Seller; and
f. Labor and equipment necessary to establish and maintain connection of the Hardware to Client’s telephone, computer, Internet or Wi-Fi networks, as may be applicable.
6. Client’s Control and Responsibility. Client has and will retain sole responsibility for: (a) all Client data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Client or any user in connection with this Agreement; (c) Client’s information technology infrastructure, including hardware, software and networks, whether operated directly by Client or through the use of third-party services; and (d) the security and use of Client’s and its users’ access credentials (if applicable).
7. Invoicing; Payment; Late Payments.
a. Invoicing. Seller shall invoice Client for Hardware upon shipment. Seller shall invoice Client for Services upon the earlier of (a) shipment of the first Hardware to Client, and (b) the date on which Seller electronically delivers or makes Software ordered in the Ordering Document available for download or access by Client, unless otherwise set forth in the applicable Ordering Document or SOW.
b. Payment. Except as otherwise stated in the Ordering Document, Client shall pay Seller for all invoiced amounts within thirty (30) calendar days of the invoice date. Seller may require prepayment for Client purchases where the total of all items purchased in such transaction is below two thousand United States Dollars ($2,000 USD). Seller may revise the payment methods it accepts at any time. Seller may apply a surcharge to certain payment methods.
c. Late Payments. Late payments are subject to a charge equal to the lesser of 1.5% per month of the amount outstanding or the maximum allowed by law. Client shall reimburse Seller for all costs and expenses (including attorneys’ fees) in collecting any overdue amounts. All payments shall be made in U.S. Dollars unless specifically noted on the Ordering Document. All amounts payable to Seller under the Agreement shall be paid by Client in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason or any deduction or withholding of tax as may be required by applicable law. Seller may cancel orders, or hold or delay fulfillment where Client is not current on its payment obligations to Seller under this Ordering Document or any other agreement with Seller.
8. Cancellations and Returns. Any order by Client may be cancelled or changed only with the consent of Seller. Seller’s prior consent is required before a return will be accepted. Any permitted returns will require a Return Material Authorization Number. Permitted returns for any reason other than breach of warranty or Seller’s incorrect shipment will be subject to a minimum restocking fee of twenty percent (20%). All returned Hardware must be sent freight prepaid to the appropriate address indicated by Seller. Seller accepts no responsibility for Hardware returned without prior authorization.
9. Confidentiality. Confidential information Seller (the “Disclosing Party”) provides to Client (the “Receiving Party”) under this Agreement shall be governed as follows:
a. Scope of Confidential Information. Confidential Information consists of all non-public information disclosed pursuant to this Agreement, however disclosed and in whatever medium: (i) that is designated as “Confidential” or “Proprietary” by the Disclosing Party at the time of disclosure or within a reasonable period thereafter; (ii) that concerns the customers, finances, methods, research, products, prices, terms and conditions, technical information, code, data, processes, procedures, code, inventions, or know-how of the Disclosing Party; or (iii) that by the nature of the circumstances surrounding disclosure, or the information itself, would reasonably enable a person or organization to ascertain its confidential nature (collectively, the “Confidential Information”). Seller’s Confidential Information expressly includes the Hardware, Documentation, technical information and other code or data of any type provided by Seller or its agents, the pricing offered by Seller to Client, and the terms and conditions of this Agreement.
b. Treatment of Confidential Information. Receiving Party shall retain the Disclosing Party’s Confidential Information in strict confidence and shall not use such Confidential Information expect for purposes permitted under this Agreement. Receiving Party shall be entitled to disclose Confidential Information on a need-to-know basis to its employees, agents, and subcontractors, provided that such employees, agents, and subcontractors are bound by nondisclosure and confidentiality obligations no less protective than those set out in this Agreement. Receiving Party shall use at least the same degree of care in safeguarding the Disclosing Party’s Confidential Information as it uses in safeguarding its own, but shall not use less than reasonable care and diligence.
c. Exclusions. Obligations with respect to Confidential Information shall not apply to Confidential Information that the Receiving Party can demonstrate: (i) is or becomes a matter of public knowledge through no fault of the Receiving Party; (ii) was or becomes available to the Receiving Party on a non-confidential basis from a third party, provided that such third party is not bound by an obligation of confidentiality to the Disclosing Party with respect to such Confidential Information; (iii) was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information; or (iv) is required to be disclosed by law, provided that the Disclosing Party is promptly notified by the Receiving Party in order to provide the Disclosing Party an opportunity to seek a protective order or other relief.
10. Limited Warranty; Exclusions.
a. Limited Hardware Warranty. Except as stated in the Documentation, Seller warrants to the original purchaser (“Client”) that the Hardware shall be free from defects in material and workmanship under normal use for Warranty Period (as defined below). This Limited Hardware Warranty shall not apply to, and the term Hardware shall not include, any embedded or accompanying Software. This Limited Hardware Warranty extends only to the original purchaser of the Hardware and is non-transferrable or assignable. This Limited Hardware Warranty shall not be enlarged and no obligation shall arise out of Seller’s rendering of technical advice or service in connection with the purchase of the Hardware. The “Warranty Period” shall be that warranty length stated in the Documentation. If no Warranty Period is stated in the Documentation, then the Warranty shall be the greater of (a) that period of time stated in the applicable Product/Service-Specific Terms, (b) thirty (30) days, or (c) the minimum period of time required by applicable law. Except as otherwise stated in the Documentation of the Product/Service-Specific Terms, the Warranty Period shall commence upon Seller’s shipment of the Hardware to Client (as evidenced by Seller’s records).
b. Conditions of Warranty and Exclusions. This Limited Hardware Warranty applies only if the Hardware was purchased from Seller or its authorized distributor. Seller reserves the right to reject warranty claims for Hardware purchased from unauthorized sellers. This Limited Hardware Warranty is conditioned upon proper use of the Hardware. This Limited Hardware Warranty shall not apply to Hardware provided for beta, evaluation, testing, or demonstration purposes for which Seller does not receive a payment of purchase price or license fee.
In addition to all exclusions and limitations set forth in the Documentation and any applicable Product/Service-Specific Terms, the Limited Hardware Warranty does not cover:
· Hardware that has not been installed, operated, repaired, or maintained in accordance with the documentation instructions supplied by Seller
· Defects or damage caused by accident, misuse, abuse, abnormal use, abnormal conditions, improper storage, negligence, neglect, or unusual physical, electrical or electromechanical stress
· Defects or damage caused by exposure to liquid or moisture that is inconsistent with the specifications and instructions applicable to the Hardware according to the appliable documentation and terms and conditions
· Defects or damage to plastics (including defects in appearance, cosmetics, decorative or structural items including framing and non-operative parts)
· Equipment that has the serial number removed, defaced, damaged, altered, or made illegible
· Ordinary wear and tear
· Defects or damage caused by the use of accessories, products, or ancillary/peripheral equipment not furnished or approved by Seller
· Defects or damage caused by service, testing, adjustment, installation, maintenance, alteration, or modification in any way by anyone other than Seller, or its authorized partner
· Defects or damage resulting from external causes such as collision with an object, fire, flooding, windstorm, lightning, power surge, and earthquake
· Batteries (other than Dead on Arrival for batteries provided by Seller) and defects or damage caused batteries not provided by Seller
c. Warranty Remedy and Procedure. Client’s sole and exclusive remedy and Seller’s sole obligation under this Limited Hardware Warranty is, in Seller’s sole discretion, repair or replacement of the Hardware or refund of the purchase price. Seller replacement parts may be new or refurbished. Seller reserves the right to provide replacement Hardware or components of similar form and function, as long as the functionality is equal or better than Client’s original Hardware or components.
Seller’s obligations under this Limited Hardware Warranty are contingent on Client returning the affected Hardware in accordance with Seller’s then-current Return Material Authorization (RMA) procedures. Client shall be responsible for all insurance, postage and shipping costs incurred in returning affected Hardware to Seller.
Any replacement or repaired Hardware will be covered by this Limited Hardware Warranty only for the remainder of the original Warranty Period.
d. Hardware and Warranty Disclaimers. In addition to any limitations, limits of liability, exclusions, and disclaimers set forth in the Documentation and any applicable Product/Service-Specific Terms:
The warranties in these STCs are LIMITED WARRANTIES AND SET FORTH THE ONLY WARRANTIES MADE BY SELLER. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THESE STCS, ALL HARDWARE AND SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS.” SELLER AND ITS SUPPLIERS DO NOT MAKE ANY OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY, LEGAL, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF QUALITY, MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER WARRANTIES ARISING OUT OF THE COURSE OF DEALING, USAGE OR TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SELLER OR ELSEWHERE, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE STCS. CLIENT MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OR STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SOFTWARE WARRANTY PERIOD AND HARDWARE WARRANTY PERIOD, AS APPLICABLE. CLIENT ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS AGREEMENT, AND THAT NO WARRANTIES OF ANY KIND WHATSOEVER HAVE BEEN MADE BY ANY OF SELLER’S SUPPLIERS. This disclaimer and exclusion shall apply even if the express warranty set forth above fails of its essential purpose.
e. Seller Not Responsible for Client’s Network. Certain Hardware uses and relies upon Client’s Wi-Fi network to enable the Hardware to transmit and/or receive communications. In a location where there is interference with, or Client’s Wi-Fi network is insufficient to connect to or successfully transmit and receive data, the functionality of the Hardware may be impaired or not work properly. Seller shall not be responsible for, and specifically disclaims any and all responsibility and liability for any impairment or improper functionality associated with or resulting from interference with or insufficiency of Client’s Wi-Fi network.
11. Ownership. Seller (and its suppliers or licensors, as applicable) shall retain all Intellectual Property Rights (including, without limitation, all worldwide right, title and interest, related goodwill, and confidential and proprietary information) in and to (a) the Hardware, Documentation, and its Confidential Information; (b) any third party products included in the Hardware, Documentation, or its Confidential Information or that Seller otherwise provided to the Client (“Third-Party Products”); and iii) any modifications and any derivative works based on or including any part of the Hardware, Documentation and Confidential Information. All Software is licensed and not sold. Client’s rights to the aforementioned items are limited to the rights expressly granted in this Agreement. This Agreement does not grant Client any rights to patents, copyrights, trade secrets, trademarks, or any other rights with respect to the Hardware, Documentation, or Seller’s Confidential Information. No course of conduct or other construction or interpretation shall be construed to grant Client any rights other than those expressly provided in this Agreement. Client shall not use any Third-Party Products separately or apart from the Hardware.
12. Intellectual Property Infringement.
a. General. Seller shall defend the Client against any third party suits, actions, claims or proceedings against Client alleging that the Hardware infringe or misappropriate such third party’s Intellectual Property Rights and Seller agrees to reimburse the Client for any damages finally awarded against the Client by a court of competent jurisdiction that may result from any such third-party claim.
b. Notification. Client shall promptly notify Seller in writing of any claim or demand for which Seller is responsible under Section 12.a., and will cooperate with Seller to facilitate the defense or settlement of such matter.
c. Limitation. Seller shall have no obligation under this Section 12 or otherwise for any infringement suit or action based on (i) the use of a superseded or altered release of the Hardware, (ii) the combination, operation, or use of the Hardware with hardware, data, or other materials not furnished by Seller, (iii) use of the Hardware other than as permitted under this Agreement or the Documentation, (iv) modification to the Hardware made by a party other than Seller, (v) Seller’s compliance with any specifications or plans provided by Client, or (vi) any other use or modification of Hardware that is out of compliance with the Documentation or the Agreement.
d. Exclusive Obligation. The foregoing Seller indemnity states the sole obligation and exclusive liability of Seller and the Client’s sole recourse and remedy, for any claim of infringement or misappropriation of an Intellectual Property Right or proprietary right of the Hardware.
e. Seller’s Right to Proactive Correction. If Seller believes a Hardware has become or is likely to become subject to an infringement suit or action, Seller may (i) replace or modify the Hardware so that it becomes non-infringing; (ii) procure for Client the right to continue using the Hardware; (iii) refund the purchase price of Hardware upon certification of destruction if within one (1) year of original delivery, or the net book value of the Hardware based upon a five (5) year useful life; or (iv) any combination of (i) through (iv) above. This Section 12 states Seller’s entire liability and Client’s sole and exclusive remedy for infringement or misappropriation suits and actions of any kind.
13. Limitation of Remedies and Damages. SELLER, ITS AGENTS, SUPPLIERS, AND ITS LICENSORS SHALL NOT BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, COST OF CAPITAL, COST OF SUBSTITUTE EQUIPMENT, LOST DATA, FAILURE OF ANY SECURITY MECHANISMS, INTERRUPTION OF BUSINESS OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING PUNITIVE DAMAGES OR LOST PROFITS OR REPUTATIONAL DAMAGES), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), CIVIL LIABILITY, STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, SELLER’S, ITS AGENTS’, SUPPLIERS’, AND ITS LICENSORS’ ENTIRE AGGREGATE LIABILITY TO CLIENT IN CONNECTION WITH OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, CIVIL LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID OR PAYABLE BY CLIENT TO SELLER FOR HARDWARE AND SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 13 SHALL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE AND AGREE THAT SELLER HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN, WHICH ALLOCATE THE RISK BETWEEN CLIENT AND SELLER AND FORM A BASIS OF THE BARGAIN BETWEEN THE PARTIES.
14. Governing Law and Venue. The Agreement and performance under it will be governed by, without reference to or application of any conflicts of law provisions, the laws of: (a) if Seller is located in the United States of America or Canada, the State of Delaware; and (b) if Seller is located outside of the United States of America or Canada, the laws of the country where the applicable Seller entity is located.
15. General Provisions
a. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, agency or otherwise created under this Agreement. Neither party has, and neither party will represent to any third party that it has the power to bind the other or incur obligations on the other’s behalf without the other party’s prior written consent.
b. Compliance with Laws and Documentation. Client shall comply with all federal, state, and local laws, regulations, and ordinances applicable to its business and activities. Client further agrees that it shall only use the Hardware and Services in accordance with the Documentation.
c. Export. Client warrants and undertakes that: (i) neither Client, its affiliates, nor any of their respective officers or directors, is a Listed Person; (ii) it shall observe and comply fully with all Export Control and Sanctions Laws; and (iii) it will not engage in any transaction involving the Hardware, Software, or Services that has the purpose or effect of violating, circumventing, evading, or avoiding, the Export Control and Sanctions Laws. Client shall not, directly or indirectly, sell, export, re-export, transfer, re-transfer or otherwise release or dispose of the Hardware, Software, or Services: (iv) to, or for the benefit of, a Listed Person; (v) to any party in, or for use in, Afghanistan, Belarus, Crimea and non-Ukraine government controlled areas of Ukraine, Cuba, Iran, North Korea (DPRK), Russia, Sudan, Syria or Venezuela; (vi) without having obtained licenses or authorizations necessary under the Export Control and Sanctions Laws, or otherwise in breach of such licenses or authorizations obtained by Seller; or (vii) for military end-use or to a military end-user without obtaining Seller’s prior approval. Client shall as promptly as possible, and in any event within five (5) business days, inform Seller in writing of any suspected or alleged breach of this Section by Client. Following any reasonably suspected breach of this Section, Seller has the discretionary right to refuse any further performance under this Agreement and to unilaterally terminate this Agreement with immediate effect, without incurring any liabilities whatsoever.
d. No Resale. Client agrees that all products and services purchased hereunder are for Client’s internal commercial use only and may not be resold or otherwise transferred to any third party without Seller’s prior written consent, which may be conditioned or withheld in Seller’s sole discretion.
e. Limitation of Actions. Client agrees that any claim must be demanded or otherwise instituted within two (2) years of when Client knew or should have known of the claimed breach or other violation. Failure to commence the claim within this time period shall constitute an absolute bar to any proceedings and a waiver of all such claims.
f. Force Majeure. Neither party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement for any failure or delay in fulfilling or performing any obligation (except with respect to the payment of fees), when and to the extent such failure or delay is caused by circumstances beyond such party’s reasonable control, including without limitation acts of God, flood, fire, terrorism, invasion, strikes (except with respect to a party’s own labor force), pandemic, epidemic, shortages, lockouts, riots, civil unrest, acts of war, earthquake, fire, explosions, natural disasters, refusal of license by any governmental agency, or power or connectivity interruptions.
g. Remedies. Except as expressly stated herein, no remedy conferred by any of the provisions of the Agreement is intended to be exclusive of any other remedy, and each remedy is cumulative and in addition to every other remedy available to a party hereunder or otherwise at existing law, equity, by statute or otherwise. The election of any one or more remedies by either party shall not constitute a waiver of the right to pursue any other available remedies. Client acknowledges that any actual or threatened breach of this Agreement will constitute immediate, irreparable harm to Seller for which monetary damages alone would be an inadequate remedy and that equitable or injunctive relief is an appropriate remedy in addition to any other remedies that may be available to Seller.
h. Assignment and Subcontracting. Seller may subcontract or assign its rights and delegate its obligations under this Agreement, in whole or in part, without Client’s prior consent. Client may not assign or delegate the Agreement without Seller’s prior written consent (which consent shall not be unreasonably withheld).
i. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will remain enforceable and in full force and effect.
j. No Third Party Beneficiaries. There are no third party beneficiaries of this Agreement except to the extent expressly stated herein.
k. Modifications. Seller may change these STCs, the EULA, or any Product-Specific Terms by updating the same on www.securitashealthcare.com. Changes to the aforementioned terms and conditions apply to any Hardware, Software, or Services acquired or renewed after the date of modification. Further, Seller may modify or discontinue any of its Hardware, Software, or Services at any time; provided if Client has an active and paid agreement for Support Services covering the Hardware, Software, or Services purchased by Client, Seller shall provide notice as required by the applicable terms and conditions governing such Support Services.
l. Entire Agreement. This Agreement, including the STCs, Ordering Document and any applicable EULA, Product/Service-Specific Terms, or SOWs contains the entire, final agreement and understanding of the parties concerning the subject matter of this Agreement. Any new or different term introduced in any other document (e.g., a purchase order) shall have no effect.
m. Headings. Section headings used in this Agreement are for convenience and not to be used in interpreting this Agreement.
n. Notice. Delivery of any notice by a party shall be legally valid and effective through: (i) delivering the document through personal delivery; (ii) delivering the document through commercial delivery with delivery confirmation (e.g. FedEx, UPS, USPS); (iii) transmitting the document by facsimile transmission, electronic mail in “portable document format” (i.e., “.pdf”), or other electronically scanned format; or (iv) delivering the document by electronic means with delivery confirmation (e.g., DocuSign®).
Notice Address for Licensor:
4600 Vine St.
Lincoln, NE 68503
Attn: Legal Department
Email: [email protected]
Notices to Client shall be sent to the Client address on the Agreement, if any.
16. Definitions. The following terms shall have the meanings given below:
a. “Cloud Services” shall have the meaning given in the EULA.
b. “Documentation” means the operators’ manual, the packaging inserts, user guide, and/or other documents associated with the Hardware.
c. “EULA” means the End User License Agreement available at www.securitashealthcare.com/eula.
d. “Export Control and Sanctions Laws” means all customs, import, export, re-export, trade and export control and economic or financial sanctions laws, regulations and orders imposed, administered, enacted and/or enforced by the United Nations (UN), the European Union (EU) and its member states, the United States of America (US), the United Kingdom (UK), or any applicable jurisdiction.
e. “Hardware” means the hardware, equipment, disposables, and other products purchased by Client as stated on an Ordering Document. Hardware does not include Services, Documentation, or any software embedded on or provided with the Hardware.
f. “Intellectual Property Right” means any patent, copyright, trade name, trademark, service mark, mask works, trade secret, know-how, or any other intellectual property right or proprietary right, whether registered or unregistered, and whether now known or hereafter recognized in any jurisdiction.
g. “Listed Person” means any natural or legal person which is itself specially designated, blocked or otherwise individually targeted, or fifty percent (50%) or more (directly or indirectly and either individually or in the aggregate) owned or otherwise controlled by any natural or legal person that is specially designated, blocked or otherwise individually targeted, under any Export Control and Sanctions Laws.
h. “Ordering Document” means a quote, agreement, or other document or process referencing or incorporating these STCs.
i. “Software” shall have the meaning given in the EULA.
