TERMS and CONDITIONS
TERMS and CONDITIONS
Molecular Imaging Systems
Carestream Health, Inc.
Rochester, NY
1.0 PURCHASE ORDERS
All purchase orders shall be governed by the terms and conditions of this Agreement. No terms and conditions in Purchaser’s order forms will be effective to modify or supplement this Agreement, whether or not such forms are accepted on behalf of Carestream Health, Inc. Any modification to this Agreement or of the quote must be in a writing signed by the Purchaser and Carestream Health, including any changes to specifications or schedule for manufacturing or delivery of Products.
2.0 PRODUCT(S)
2.1 The Products and professional services supplied hereunder shall be as defined in Carestream Health quotation hereto attached. The Products and professional services may be comprised of, but not limited to, equipment, accessories, installation, training, transportation, and software required to operate Product(s).
2.2 Carestream Health reserves the rights to deliver substitute Product(s) and accessories of equal or better specifications based on market availability and/or obsolete components.
3.0 PRICING
3.1 Carestream Health’s current prices for the Products and services are set forth in the attached quote. Prices quoted do not include transportation, insurance, or other shipping charges. Prices quoted also do not include duties or sales, use, or other similar taxes, and applicable taxes may be included on the invoice unless Purchaser provides Carestream Health with adequate proof of exemption from such taxes. Prices do not include installation, unless otherwise noted in writing. All prices are stated and payable in US dollars.
3.2 If Product specifications are changed or modified at the request of the Customer, Carestream Health may, at its sole discretion, change the Product pricing.
4.0 DELIVERY
4.1 Delivery terms are FOB Carestream Health’s plant, New Haven, CT. Title to, and the risk of loss of or damage to, all items ordered by Purchaser will pass to Purchaser at the time of delivery to the carrier. Subsequent loss or damage will not relieve Purchaser of any obligation under this Agreement. Customer must inspect arriving shipments and report errors in shipment promptly. Specifically, visible damage and shortages must be reported to the carrier and to Carestream Health within five (5) business days after delivery. Concealed damage or shortages involving cartons received intact must be reported within fifteen (15) business days after receipt. For invoice disputes alleging shortages, Customer must request proof of delivery within 60 days after the original invoice date. Customer’s failure to comply with these inspection and reporting requirements shall be deemed a waiver of any and all claims for damage (visible or concealed) and/or shortages not timely made. Even though shipping dates are approximate and based upon prompt receipt of all necessary information, Carestream Health shall use commercially reasonable efforts to meet agreed upon delivery dates. Carestream Health shall not be liable for any failure to meet delivery dates and delay shall not give Customer the right to cancel any order.
4.2 If the Product(s) are delivered to a temporary storage location, Customer is responsible for the security of the Product(s) and movement of the Product(s) to the final install site, if installation is included with the sale.
5.0 TERMS OF PAYMENT
5.1 All invoices will be due and payable within 30 days from date of invoice (Net 30, D.O.I.) subject to credit approval. Prepayment, Master Card, Visa, and American Express are also accepted. Carestream Health may assess a late payment charge of 2% per month (or the maximum amount as may be allowed by law, whichever is less) on the overdue balance for any unpaid invoices. In the event that Customer fails to pay and Carestream Health undertakes collection actions and prevails, then Customer agrees to pay reasonable attorney’s fees, costs to collect, and interest from the date of the original invoice. Any amounts disputed in good faith are not subject to late payment charges. Carestream Health will render invoices for the purchase price of the Product(s) upon Carestream Health’s delivery to the carrier.
5.2 If Carestream Health makes a partial shipment, Carestream Health will issue an invoice for the partial shipment, and the invoice is payable as set forth above. Errors in billing must be reported to Carestream Health promptly. In the case of a disputed invoice, the undisputed portion is payable as set forth above
5.3 All remittances should be made to the Carestream Health address shown on Customer’s invoice.
5.4 All payments shall be made in U.S. dollars in immediately available funds, unless otherwise agreed to in writing by Carestream Health.
6.0 CANCELLATION/RETURNS
6.1 Customer may not cancel, modify, or reschedule an order without Carestream Health’s written consent. Carestream Health may refuse, consent, or impose additional charges and its own scheduling requirements as a condition of accepting cancellation or reschedule of an order.
6.2 The Product(s) are sold without return privileges. Carestream Health may, at its sole discretion, authorize a return of the Product(s). If a return is authorized, Customer must first obtain a Return Material Authorization (RMA) number and return address from Carestream Health, by contacting Carestream Health The RMA number must be included on the packing slip for returned material. The Product(s) must be returned to Carestream Health at the address given to the Customer for that specific return within thirty (30) days after the RMA was issued. Carestream Health may refuse to accept the return of the Product(s) for which the Customer has not provided a RMA number or for which the RMA number was issued more than thirty (30) days prior to its return. Any credit given for authorized returns will be based on the original invoice price. At the sole discretion of Carestream Health, a restocking fee of 15% may be assessed
6.3 Customer may return any Products(s) shipped in error by Carestream Health. For shipping errors, Carestream Health will pay return shipping charges. Returned Products(s) must be complete and in saleable condition.
7.0 THIRD PARTY LESSOR
7.1 Customer, with approval of Carestream Health’s Credit Department, may designate a third-party lessor to purchase products from Carestream Health for lease to the Customer. All associated warranties shall pass through to the Customer.
8.0 INSTALLATION / ACCEPTANCE
8.1 When the Product(s) are sold with installation included, the Customer will incur responsibilities as follows:
a. The essential site preparations required must be complete prior to the scheduled installation. The costs associated with these preparations are the sole responsibility of the Customer;
b. Providing timely access to Customer’s premises for Carestream Health personnel responsible for installation and warranty service;
c. Providing required local area and wide area network facilities support and network validation as required by the Product(s);
d. Assigning a primary point of contact who will be responsible for issue resolution during the Product installation and continuously monitor progress to minimize potential risks;
e. Schedule and complete user training;
f. Permit Carestream Health to install mandatory engineering changes, including but not limited to, those changes required for safety.
Customer will be responsible for any additional costs resulting from the failure to meet any of its responsibilities.
9.0 SOFTWARE
9.1 For the purposes of this agreement, the term “Software” shall be defined as the firmware, software, or data compilations (regardless of the media within which they are recorded, fixed or delivered) identified in the quote, which provide for the operation, installation, use, de-installation, maintenance, or repair of the Product(s). Software also includes any software for enhancing the operation of the Product(s) or any other software provided by Carestream Health at any time for use with the Product(s). Software does not include the operating system software provided with the Product(s).
9.2 The Software provided by Carestream Health hereunder may include software licensed to Carestream Health by third parties (“Third Party Software”). If the Software provided to the Customer includes certain Third Party Software for which specific end user licenses are provide to the Customer, the terms and conditions of such end user licenses shall apply to Customer’s use of the software.
9.3 Carestream Health hereby grants to Customer a non-exclusive, non-transferable license to use the Software only in conjunction with its normal operation of the Product(s). This license also applies to any improved or modified versions of the Software provided to the Customer by Carestream Health. Unless otherwise noted herein, no rights are granted to any source code to the Software.
9.4 Carestream Health or its suppliers retain all title to the Software and the intellectual property rights therein. Nothing in this Agreement will be deemed to grant the Customer any proprietary rights in the computer programs or any other work embodied in the Software. No right to use, print, copy, adapt, translate, de-compile, reverse engineer, or otherwise derive the source code, or display the Software, is granted, except as expressly set forth in this Agreement.
9.5 Customer may not copy or alter, and must take reasonable care to ensure that others do not copy or alter, the Software in whole or in part, in any media for any purpose, except that the Customer shall have the right to make sufficient backup and archival copies of the Software for the purpose of supporting its permitted use of the Software. To every copy, the Customer must affix the same copyright or other proprietary rights notice as was originally affixed to the Software when delivered by Carestream Health.
9.6 Customer shall use commercially reasonable efforts to not disclose the Software in whole or part to any unauthorized third party without the written permission of Carestream Health
10.0 TRADEMARKS
10.1 Product components may bear one or more Carestream Health trademarks or trade names (“Carestream Health Marks”). Customer may not remove, alter, or otherwise modify or conceal any Carestream Health Marks on the Product. Customer is not authorized to use or license others to use the Carestream Health Marks and has no rights of any kind whatsoever with respect to the Carestream Health Marks.
11.0 DISCLAIMER AND RESTRICTION OF USE
IT IS UNDERSTOOD THAT THESE PRODUCTS ARE FOR RESEARCH ONLY. THEY ARE NOT INTENDED TO BE USED FOR, NOR ARE THEY TO BE USED FOR, DIAGNOSTIC PURPOSES OR FOR OTHER USES REGULATED BY THE US FOOD AND DRUG ADMINISTRATION OR OTHER GOVERNMENTAL ENTITIES HAVING REGULATORY PROGRAMS AND POWERS COMPARABLE OR SIMILAR THERETO.
12.0 WARRANTY
12.1 Carestream Health, Inc. warrants to Customer that the products sold subject to these Terms shall be free from defects in workmanship and material under normal use and service for a period of one (1) year from the date of delivery. Additional warranties and licenses may apply to specific products. The foregoing warranty does not include Hardware components not manufactured by Carestream Health (“OEM Hardware”). These may include, but are not limited to, computers, monitors, and printers. OEM Hardware furnished with the Product(s) is warranted by the original equipment manufacturer. Carestream Health must receive any warranty claim within 30 days of Customer becoming aware of any such defect. Carestream Health’s sole obligation under this warranty is to, at its option, refund the purchase price of the product or replace said product. Unless otherwise noted in writing, all warranties are extended to Customer only.
12.2 Carestream Health warrants any Software provided hereunder for one (1) year from the date of delivery. For the warranty period, Carestream Health warrants: (a) the Software will perform substantially in accordance with the specifications; and (b) the media on which the Software is furnished will be free from defects in materials and workmanship under normal use as set forth in the users guide. Carestream Health’s sole obligation under this warranty is to, at its option, refund the purchase price of the product or replace said product. Unless otherwise noted in writing, all warranties are extended to Customer only.
12.3 The warranties set forth in this Agreement do not cover: (a) circumstances beyond Carestream Health’s control; (b) service or parts of any attachments, accessories, or alterations not provided by Carestream Health or correction of the problems resulting from their use: (c) failure to follow Carestream Health’s operating instructions; (d) supply items; (e) malicious software infections caused by others.
THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WHETHER STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
13.0 LIMITS OF LIABILITY
CARESTREAM HEALTH, INC. WILL NOT BE RESPONSIBLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES IN CONNECTION WITH THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES RESULTING FROM THE SALE, USE, OR IMPROPER FUNCTIONING OF THE PRODUCT(S), REGARDLESS OF CAUSE. Such damages for which Carestream Health will not be responsible include, but are not limited to: loss of revenue or profit; downtime costs; loss of use of the Product(s); cost of any substitute equipment; any and all ergonomic injuries allegedly associated with a set of the Product(s); facilities or service; or claims of the Customer or any third parties for such damages.
14.0 INDEMNIFICATION
Carestream Health warrants that the equipment supplied will substantially conform to Carestream Health’s published specifications. Carestream Health further warrants that it will defend Customer against any claim that the equipment supplied hereunder infringes a patent device claim, copyright, or other third party intellectual property right, and Carestream Health will pay any costs and damages that a court finally awards against Customer as a result of such claim, provided Customer provides Carestream Health prompt written notice of such claim and tenders to Carestream Health the defense and all related settlement negotiations. Carestream Health shall have no obligation with respect to any such claim based upon Customer’s modification of the equipment, or on Customer’s combination, operation, or use with other equipment not supplied by Carestream Health, or for Customer’s methods of using the equipment.
At any time during the course of any litigation arising out of such a claim, or if, in Carestream Health’s opinion, the equipment or any part thereof is likely to become the subject of a claim of infringement, Carestream Health will, at its option and at its expense, either procure for Customer the right to continue using the equipment, replace or modify the same so that it becomes non-infringing, or grant Customer a credit for the equipment as depreciated, and accept its return. The depreciation will be an equal amount per year over the lifetime of the equipment as established by Carestream Health.
15. INTELLECTUAL PROPERTY
No licenses or rights under any intellectual property are granted or implied under this Agreement. Customer understands that methods of preparing and viewing samples, materials used in such preparation, and the results of imaging the samples, may be subject to various third party patent, copyright, or other intellectual property rights, and further understands that sale of the equipment to Customer by Carestream Health or its authorized licensees or dealers does not provide license to any intellectual property rights held by third parties that may pertain to preparing and viewing samples, materials used in such preparation, and the results of imaging the samples.
16. EXPORT CONTROL
This Agreement, and any technical information provided to the Customer in the course of delivery under this agreement, is made subject to any restrictions concerning the export of products or technical data from the United States, which may be imposed by the U.S. Government. The Customer may not export, directly or indirectly, any United States source technical data acquired from Carestream Health, or any direct product of that data, to any country for which the United States, at the time of export, requires an export license or other government approval without first obtaining that approval.
17. LAW AND VENUE
This Agreement will be governed by and construed in accordance with the substantive laws of the State of New York as applied to agreements entered into between two residents of the State of New York, without regard to its conflict of laws principles. The parties submit to the nonexclusive personal jurisdiction of, and waive any objection against, the United States District Court for the Western District of New York, and the state courts of the State of New York in Monroe County, New York.
18. CONFIDENTIAL INFORMATION
All information disclosed by one party to the other hereunder shall be considered as having been disclosed on a non-confidential basis. This provision shall not apply to any information subject to a nondisclosure agreement signed by Carestream Health and Customer.
19. FORCE MAJEURE .
Except for payment of outstanding balances when due, neither party will be liable for any damages or penalties for delay in performance when such delay is due to the elements, acts of God, acts of civil or military authority, fires or floods, epidemics, quarantine restrictions, act of terrorism, war riots, or other circumstances outside the reasonable control of the affected parties.
20. ASSIGNMENT
Failure by either party to enforce any term or condition of this Agreement will not be deemed a waiver of future enforcement of that or any other term or condition.
21. WAIVER
Either party’s failure at any time to require performance by the other party of any of the provisions herein or failure to enforce any of its rights hereunder shall not be deemed a waiver thereof and shall not be constructed as a usage of trade or course of dealings between the parties. Waiver of any default shall not waive any other default.
22. DUTY TO WARN
CUSTOMER EXPRESSLY AGREES THAT KODAK HAS NO RESPONSIBILITY TO PROVIDE ANY WARNINGS, OR SAFETY, INSTRUCTIONAL, OR OTHER INFORMATION CONCERNING THE PRODUCTS.
23. NOTICES
All notices other than price change notices must be in writing and if not personally delivered, be sent by facsimile or by registered or certified mail, or by electronic mail. If sent by facsimile, electronic mail, or personally delivered, notices will be effective on the day when delivered addressed to the other party. If mailed by registered or certified mail, notices will be effective when received or when delivery is refused. All notices to Carestream Health must be addressed to, Molecular Imaging Systems, Carestream Health, Inc. 4 Science Park West, New Haven, CT 06511, Attention: Customer Service. Either party may from time to time change the address to which notices to it are to be sent by giving notice in writing of such change to the other party.
24 SEVERABILITY
If any term of this Agreement is held invalid or unenforceable for any reason, the remainder of the provisions will continue in effect as if this Agreement had been executed with the invalid portion eliminated.
25 HEADINGS
The various headings in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement or any section or provision hereof.
26 ENTIRE AGREEMENT
This Agreement, including any Attachments, Exhibits or Schedules, is the entire agreement of the parties and supersedes all prior agreements and understandings, whether written or oral, with respect to the subject matter of this Agreement.