Effective date 9/23/2021
1. ORDER OF PRECEDENCE
The following are the terms and conditions (the “Terms”) under which Healthcare Systems Informatics (“HSi”) sells hardware products (“Hardware”) and licenses software products (“Software” and together with Hardware, “Products”) to Customers. All quotations and offers to sell and/or license Products to Customers made by HSi are made subject to these Terms. To the extent that any purchase order or other procurement document of a Customer contains conflicting, differing, or additional terms from these Terms, these Terms will control and all such conflicting, differing or additional terms shall be deemed rejected by HSi and shall have no effect. In such case, these Terms shall be deemed a counteroffer by HSi with acceptance limited to these Terms only, and a Customer’s acceptance of, or payment for, Products shall conclusively affirm such Customer’s acceptance of these Terms without modification. These Terms contain the complete and final agreement, and supersede any and all prior or contemporaneous agreements, between HSi and Customer as to the sale of Products to Customer by HSi. Notwithstanding the foregoing, in the event HSi and Customer are parties to a written agreement signed by HSi and Customer that is in effect at the time HSi agrees to sell a Product to Customer and such agreement covers the sale of such Product, such agreement shall control over these Terms.
2. PRICES
Prices and license fees are set forth as outlined and accepted in the HSi sales proposal or quote. If no price or license fee is so stated, the price or license fee is that specified in the applicable HSi price list in effect at the time the HSi sales confirmation is issued, or if no such price exists, as otherwise agreed by authorized representatives of HSi and Customer. If Customer’s price is based on the quantity ordered and Customer cancels any portion of such order, Customer will pay the price applicable to the quantity actually purchased. Prices set forth in HSi sales confirmations or in the applicable HSi price list exclude taxes. Customer will pay any tax (and any related interest or penalty), however designated, imposed with respect to the sale of Products to Customer.
3. TERMS OF PAYMENT AND SECURITY INTEREST
(a) If payment terms are not specifically outlined and agreed to in the purchasing agreement or sales quote, terms of payment are prepaid for hardware purchases and net twenty-one (21) days from the date of invoice for services. HSi may charge Customer the lesser of 1½% per month or the highest lawful monthly rate on any overdue amounts.
(b) If at any time the financial condition of Customer warrants, or if Customer fails to make payment(s) when due, or Customer defaults on any obligation to HSi, HSi may either alter the terms of payment offered to Customer, suspend any extension of credit to Customer, delay shipment of Products pending payment in advance, and/or pursue any remedies available at law or under these Terms. In such event, HSi will be entitled to reimbursement from Customer for HSi’s reasonable expenses of collection, including attorneys’ fees.
(c) Customer hereby grants HSi a security interest in any Products purchased from HSi and in any proceeds thereof (including accounts receivable) as security for Customer’s obligations to HSi to pay for such Products. Customer hereby authorizes HSi to file any UCC financing statement or similar document to perfect the security interest granted by Customer herein as HSi deems advisable.
4. TITLE AND DELIVERY
(a) All shipments by HSi are FCA (HSi-designated shipment point) Incoterms® 2020, with title to Products and risk of loss of Products passing to Customer at the HSi-designated shipment point and with Customer responsible for clearing customs (if applicable) and for paying all transportation, import or other duties (if applicable), taxes, and insurance charges. In the absence of written instructions to the contrary, HSi, on behalf of Customer, will select the carrier but will not be deemed thereby to assume any liability in connection with the shipment nor will the carrier be construed as an agent of HSi.
(b) Delivery dates set forth in any sales confirmation are estimates only. HSi will make reasonable efforts to deliver in accordance with these dates; however, HSi will not be liable for failure to deliver as estimated.
In the event of Product shortages, for any reason whatsoever, HSi may allocate production among its customers at its discretion.
Customer shall promptly inspect the Products upon receipt and deliver notification to HSi in writing of any nonconformity or defect within ten (10) days following the shipment date. If HSi does not receive a notification of rejection from Customer within ten (10) days after the shipment date, the Products will be deemed accepted, and Customer shall have waived any right to revoke acceptance.
5. CANCELLATION AND RESCHEDULING CHARGES
(a) Customer may cancel any quantity of Product ordered, provided Customer provides HSi with written notice of such cancellation prior to HSi’s shipment of the cancelled quantity of Product. In the event of any such cancellation, Customer will pay HSi for any non-cancelable, non-returnable material purchased by HSi and any applicable restocking fees.
6. LIMITED PRODUCTION HARDWARE WARRANTY; NO SOFTWARE WARRANTY
(a) HSi warrants that production Hardware will be free from defects in materials and workmanship for one (1) year following the date of shipment to Customer. For clarity, prototypes, “beta units” and similar pre-production versions of any Product are not covered by the warranty provided in the preceding sentence.
(b) HSi does not warrant, and this warranty specifically excludes, the suitability of the production Hardware for any specific use or application, or compatibility of the production Hardware with any other hardware or software system not provided by HSi.
(c) This warranty does not cover production Hardware that has been damaged by accident, disaster, abuse, neglect, misuse, improper handling, or incorrect installation, or which has been altered or repaired by anyone other than HSi.
(d) If any production Hardware furnished by HSi fails to conform to the above warranty during the warranty period, HSi’s sole and exclusive liability will be, at HSi’s option, to repair, replace, or credit Customer’s account with an amount equal to the price paid for any such production Hardware, provided that: (i) Customer promptly notifies HSi in writing that such production Hardware is defective and furnishes an explanation of the deficiency; (ii) Customer obtains a return materials authorization (“RMA”) number from HSi and otherwise complies with HSi’s warranty policies and procedures, (iii) Customer returns such production Hardware to HSi at Customer’s risk and expense; and (iv) HSi is satisfied claimed deficiencies exist and were not caused by accident, misuse, neglect, alteration, repair, improper installation, or improper testing. Transportation charges for the return of such production Hardware to Customer will be paid by HSi. HSi will have a reasonable time to replace such production Hardware or to credit Customer’s account.
(e) THE ABOVE LIMITED PRODUCTION HARDWARE WARRANTY IS THE ONLY WARRANTY PROVIDED BY HSI WITH RESPECT TO ANY PRODUCTS SOLD BY HSI TO CUSTOMER AND IS IN LIEU OF ANY OTHER WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. SOFTWARE LICENSED TO CUSTOMER IS LICENSED “AS-IS” WITHOUT WARRANTY OF ANY KIND. HSI SELLS AND LICENSES ITS PRODUCTS TO CUSTOMER WITH NO WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR USE OR PURPOSE, OR ANY WARRANTY OTHERWISE ARISING OUT OF ANY PROPOSAL, SPECIFICATION, OR SAMPLE, ALL OF WHICH ARE EXRPESSLY DISCLAIMED BY HSI.
(f) HSI NEITHER ASSUMES NOR AUTHORIZES ANY PERSON OR ORGANIZATION TO ASSUME FOR IT ANY OTHER LIABILITY.
(g) EXTENDED TEMPERATURE PRODUCTS DISCLAIMER
HSi Extended Temperature products undergo 100% Hass screening to verify basic functionality across the full specified operating temperature range. Customer is responsible for validating that the product meets its individual and unique application performance expectations at each temperature extreme.
8. SOFTWARE LICENSE; NO SOFTWARE SUPPORT
Customer agrees Software furnished by HSi to Customer is licensed to Customer under the terms of the applicable “break-the-seal,” “click-through,” or other separate software license agreement. Customer acknowledges that any Software furnished by HSi hereunder is and will remain subject to HSi’s and/or HSi’s licensors’ copyright and other intellectual property rights and is the sole property of HSi and/or HSi’s licensors. Customer agrees not to sell, assign, sublicense or transfer any rights in such Software except as permitted under the applicable license agreement. HSi shall have no obligation to install, perform maintenance on, or otherwise provide support services for any Software provided to Customer unless HSi and Customer enter into a separate written software support agreement providing for such services.
9. FORCE MAJEURE
HSi will not be liable for any failure to perform its obligations to Customer due to unforeseen circumstances or causes beyond HSi’s reasonable control, including, but not limited to, acts of God, war, terrorism, riot, embargoes, acts of civil or military authorities, delay in delivery by HSi’s vendors, fire, flood, accident, strikes, or inability to secure transportation, facilities, fuel, energy, labor, or materials. In the event of force majeure, HSi’s time for delivery or other performance will be extended for a period equal to the duration of the delay caused thereby.
10. EXPORT
Customer shall not export, re-export, or transfer, directly or indirectly, any product or technical data received hereunder, to any country or user to which such export, re-export or transfer is restricted by United States or local country law or regulation without first obtaining any required governmental license, authorization, certification or approval. If Customer resells or otherwise disposes of any product or technical data purchased hereunder, it will comply with any export restrictions applicable to such transfer. HSi shall have no liability for delayed delivery or non-delivery resulting from denial, revocation, suspension or governmental delay in issuance, of any necessary export license or authority.
11. LIMITATION OF LIABILITY
IN NO EVENT SHALL HSI HAVE ANY LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES OF ANY NATURE (INCLUDING WITHOUT LIMITATION, LOST REVENUES, LOST PROFITS, DELAY, OR LOSS OF USE) ARISING OUT OF, RESULTING FROM, OR IN ANY WAY RELATING TO ANY PRODUCTS SOLD OR LICENSED BY HSI TO CUSTOMER OR ANY NON-PERFORMANCE OF HSI’S OBLIGATIONS TO CUSTOMER, EVEN IF HSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS SOLD OR LICENSED TO CUSTOMER OR THE NON-PERFORMANCE OF HSI’S OBLIGATIONS TO CUSTOMER SHALL BE LIMITED TO ACTUAL DIRECT DAMAGES CAUSED THEREBY, NOT TO EXCEED THE NET PROFIT OBTAINED BY HSI FROM THE SALE OR LICENSE OF SUCH PRODUCTS TO CUSTOMER/DISTRIBUTOR OR THE AMOUNT PAID BY CUSTOMER TO HSI ON ACCOUNT OF SUCH UNPERFROMED OBLIGATIONS, AS APPLICABLE, THAT GIVES RISE TO SUCH DIRECT DAMAGES. THESE LIMITATIONS WILL APPLY FOR ALL CLAIMS, INCLUDING WITHOUT LIMITATION, CONTRACT, WARRANTY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
12. GENERAL
(a) These Terms shall be governed by the laws of the State of Washington, excluding the U.N. Convention on Contracts for the International Sale of Goods, regardless of the laws that might be applicable under principles of conflicts of law. Any litigation between the parties arising out of or relating to these Terms will be brought exclusively in the state or federal courts located in Washington. Customer hereby waives any objection to the exercise by the state or federal courts located within the state of Washington of personal jurisdiction over Customer and to venue in such courts.
(b) All rights and remedies, whether conferred hereunder or by any other instrument or law will be cumulative and may be exercised singularly or concurrently. Failure by either party to enforce any term will not be deemed a waiver of future enforcement of that or any other term. These Terms are declared to be severable and in the event any portion of the Terms are deemed unenforceable, the remainder of the Terms shall be given the fullest effect permitted by law.
(c) Customer may not assign any rights or obligations hereunder without the prior written approval of HSi, and any attempt to assign any rights, duties, or obligations hereunder without HSi’s written consent will be void. HSi may assign all or any part of its rights or obligations without Customer’s consent.
