These terms and conditions (the “Agreement”) shall govern the sales of the products by CAE Healthcare set forth on the attached quotation (“Product(s)”), and apply to all quotations made, order acknowledgments sent, purchase orders for the Products received, and invoices sent by CAE Healthcare to a third party (“Customer”).
This Agreement may not be added to, modified, superseded, or otherwise altered, except by a writing signed by an authorized CAE Healthcare representative. Any terms or conditions contained in any acknowledgment, purchase order, or other communication of Customer, which are inconsistent with, different from, or additional to, the terms and conditions of this Agreement, are hereby rejected. This Agreement expressly limits acceptance to the terms and conditions of this Agreement.
To the extent that Customer’s acknowledgement, purchase order, or other communication is deemed to be an acceptance of CAE Healthcare’s offer, such acceptance is expressly made on condition of assent by Customer to the terms of this Agreement. Neither CAE Healthcare’s acknowledgment of an order, commencement of performance, nor delivery shall be deemed to be acceptance of any terms of Customer that are inconsistent with, different from, or additional to, the terms of this Agreement.
1. PURCHASE ORDERS.
1.1. All orders placed with CAE Healthcare for the Products shall be subject to acceptance by CAE Healthcare. CAE Healthcare shall not be liable for any damages to Customer or to any other person for CAE Healthcare’s failure to fill any orders or error in filling any orders for any reason whatsoever, whether or not the orders have been accepted by CAE Healthcare. If orders for the Products exceed CAE Healthcare’s available inventory, CAE Healthcare shall allocate such available inventory on a basis that CAE Healthcare, in its absolute discretion, deems equitable.
2.1. Products are those identified in CAE Healthcare’s corresponding quotation and are specific educational products comprised of, as the case may be, hardware, “Software” (meaning the software, in object code form, embedded in or bundled with the Product or required to operate the Product, as the case may be) “Data” (meaning all related Product documentation and information), End User License and other related license agreements and materials, as packaged in a single commercial package; Products may also contain a personal computer.
2.2. Customer acknowledges that solely title to the hardware shall transfer to Customer, as the Software and Data are licensed and not sold to Customer. Customer agrees that its use of the Software and Data is governed by the terms and conditions of the End-User License referenced in the quotation. Acceptance of this Agreement includes acceptance of the End-User License and avails as delegation of authority by Customer to its employee/representative operating the Product to click “Accept” to the End-User License, as applicable.
3. DELIVERY AND RISK OF LOSS
3.1. Shipment terms of the Product shall be FOB Shipping Point, unless otherwise identified in the CAE Healthcare quotation. Upon receipt of acceptance of quotation, CAE Healthcare shall notify Customer of expected delivery date and installation services, if such services are indicated in the quotation. In addition, if training is also indicated in the quotation, CAE Healthcare and Customer shall agree on the dates for the training for Customer’s employees. Notwithstanding anything indicated in the quotation, risk of loss shall pass to Customer upon delivery at the Customer delivery point indicated in the quotation (the “Site”).
3.2. CAE Healthcare shall use reasonable efforts to make deliveries of orders so accepted in accordance with the requested delivery date, but CAE Healthcare shall not be liable for any damages to Customer or to any other person for CAE Healthcare’s failure to fill any orders, or for any delay in delivery or error in filling any orders for any reason whatsoever, whether or not the orders have been accepted by CAE Healthcare.
4.1. Any Product shall be deemed accepted by Customer unless a written notice of defect is received by CAE Healthcare within ten (10) calendar days of delivery. Upon receiving Customer’s notice of defect, CAE Healthcare will have the option to repair the Product on site. If this option to repair on site is not successful within a reasonable timeframe, CAE Healthcare will provide Customer a return merchandise authorization (“RMA”) for the defective Product. Within ten (10) calendar days of receiving the RMA, Customer shall return the defective Product to CAE Healthcare’s designated repair facility. CAE Healthcare shall decide on the shipping method and shall pay for shipping costs (subject to the type of warranty covering the defective Product). At CAE Healthcare’s option, CAE Healthcare will either (i) exchange such Product for a new one of the same type (in which case, the freight for such replacement Product shall be paid by CAE Healthcare) or (ii) terminate the order (and refund the purchase price if Customer has already paid the applicable invoice for such defective Product). The remedies described above shall be Customer’s sole and exclusive remedies for cancellation, rejection or claim of breach for defective Product. If the Product has been (i) modified or altered by Customer, (ii) abused or misused, or (iii) used in a manner or in operating environment other than that for which it is designed to operate, Customer shall be deemed to have accepted the Product. Customer’s acceptance of Products tendered under this Agreement shall be final and irrevocable. Except as provided in this paragraph, Customer shall have no right to return any Products.
5. PRICE AND PAYMENT
5.1. The purchase price for the Products shall be as indicated in the quotation, which price includes license fees for the Software and Data, installation and training for operation of the Product, where such services are indicated on the quotation as being sold with the Product, as well as the price for any option offered and accepted to by Customer, including when applicable for the Product options for installation and training services and/or extended warranty services (the “Price”).
5.2. For clarification, any option for maintenance services for a Product offered in the quotation will be quoted separately and such services shall be governed by CAE Healthcare’s Support and Maintenance Agreement.
5.3. Payment for Products ordered from CAE Healthcare must be prepaid unless CAE Healthcare has, in its sole discretion, granted Customer credit approval, in which case, payment is due thirty (30) days from the date of invoice. CAE Healthcare reserves the right to terminate or modify any credit terms granted to Customer when, in CAE Healthcare’s sole discretion, CAE Healthcare believes that such action is warranted.
5.4. All payments will be made in the currency indicated on the quotation, by wire transfer of funds or by check, as per the instructions indicated by CAE Healthcare.
5.5. All sums not paid when due shall accrue interest daily at the lesser of (i) an annual rate of 18% or (ii) the highest rate permissible by law on the unpaid balance until paid in full.
5.6 . In addition to the Price, Customer is responsible for the payment of any and all taxes and duties as indicated hereafter
5.7. CAE Healthcare may, without Customer’s consent, assign and/or transfer its rights to receive payments hereunder.
6. TAXES AND DUTIES
6.1. In addition to the Price, Customer is responsible for the payment of any and all income, sales, use, consumption, value added, turn over, excise, custom duties or other taxes and like charges in connection with this Agreement (except for the corporate income taxes levied and calculated on net income under the law of the jurisdiction of the CAE Healthcare entity, issuer of the quotation), levied or required to be withheld from payment(s) to CAE Healthcare by any taxing authority or any other body having jurisdiction under any present or future law, whether now hereafter in force and effect.
6.2. To the extent that Customer is required under applicable laws to withhold or deduct taxes on any payment to be made to CAE Healthcare, then the amount payable shall be increased by the amount that will result in CAE Healthcare receiving the amount it would have received absent such withholding tax or deduction. If CAE Healthcare is required to pay any of the aforementioned fees and/or taxes or any penalties or interest payments thereon (so long as such penalties or interest are not due to CAE Healthcare default of any legal or contractual obligation), then any such payments made by CAE Healthcare shall be promptly reimbursed to CAE Healthcare by Customer.
7.1. Customer agrees to provide CAE Healthcare from time to time, with comments, suggestions, data, information or feedback (the “Feedback”) on the Product. Customer acknowledges and agrees that such Feedback may be freely used by CAE Healthcare, at its sole discretion, for the design, development, improvement, marketing and commercialization of its products and services, without any restrictions based on confidentiality or intellectual property rights. Customer further agrees that CAE Healthcare may use as Feedback any information transmitted with a warranty claim made by Customer.
8. PRODUCT INTELLECTUAL PROPERTY
8.1. Customer acknowledges that the Products’ contents are confidential and subject to protection as trade secrets of CAE Healthcare and agrees that it shall not attempt and shall use its best efforts to prevent its employees, agents, and/or contractors, from reverse engineering, decompiling or disassembling the Products or otherwise attempting to discover the internal workings and design of the Products or of deriving the source code of any software embedded in the Products.
8.2. Customer agrees that it will not remove, move, cover-up, deface or otherwise interfere with any CAE Healthcare patent markings, copyright notices or trademarks as such appear or are placed on the Products.
8.3. Some Products may provide Customer with the option of saving and reproducing the images created by such Products (“Work”) during their use. In this regard, Customer hereby recognizes that the entire rights, title and interests in and to such Work remain the exclusive property of CAE Healthcare. Customer shall not modify such Work in any way whatsoever and shall not remove or alter any CAE Healthcare notices. However, Customer is permitted to produce and reproduce such Work only for non-commercial educational purposes.
9.1. Customer shall be solely responsible for obtaining, and complying with (i) all import laws and regulations, and government approvals or permits necessary to either import or use the Product at the Site, and (ii) all export laws and regulations, and government approvals or permits necessary to return the Product from the Site to CAE Healthcare upon the termination in whole or in part of this Agreement. CAE Healthcare shall comply with export laws and regulations for the export of the Product to the Site.
10. EXTENDED WARRANTY
10.1. Customer will have the option to purchase directly from CAE Healthcare either a regular or a premium extended warranty for its Products, at the then applicable price. When purchasing said extended warranty, Customer must provide the serial number of the Product for which the extended warranty is purchased. If contracted for, the extended warranty will start post Warranty Period. However, if the extended warranty is not contracted annually, CAE Healthcare reserves the right to adjust the fee for such services at the time of subscription, taking into account the number of updates that may be required to bring the Product held by Customer to the latest CAE Healthcare version of such Product. The extended warranty is subject to CAE Healthcare’s Support and Maintenance Agreement (“SMA”), which can be unilaterally amended anytime at CAE Healthcare’s discretion upon notice to Customer, and to payment by Customer of the then applicable annual fee.
11. LIMITED WARRANTY
11.1. Warranty Period and Coverage. CAE Healthcare warrants to Customer that, commencing upon thirty (30) days after shipment of the Products and for one (1) year thereafter (but only for ninety (90) days with respect to the ExamSIM Product), or such longer term if Customer purchased an extended warranty (the “Warranty Period”) on a) CAE Healthcare interface devices and software and b) hardware , (i) the Products will substantially comply with the published specifications set forth in CAE Healthcare's user documentation for the Products; and, (ii) if delivered on CD(s), the media on which the Products are furnished shall be free from defects in materials and faulty workmanship under normal use. CAE Healthcare makes no warranty as to the Products after the Warranty Period. CAE Healthcare does not warrant that the Products will meet Customer's requirements or will operate in combinations with other hardware, software or non-supported platforms/operating systems/databases, which may be selected for use by Customer, or that the operation of the Products will be uninterrupted or error-free.
11.2. Warranty Services. Customer's sole and exclusive remedy under the Warranty Period shall be, at CAE Healthcare's option, to either (i) provide on-site services to correct any defects, which would cause the Products not to comply with the published specifications, (ii) replace the defective Products, or part thereof, with Products that comply with the published specifications, including parts that may be refurbished, used, or of like materials or (iii) terminate the Agreement immediately and refund the Price, and any maintenance fees paid by Customer, which relate to the defective Products, less a pro rata amount equal to any support and maintenance which Customer actually received. CAE Healthcare shall be responsible for any shipping costs, subject to the level warranty covering the Products, and any replacement parts. If a Product needs to be shipped to CAE Healthcare, Customer will follow the RMA procedure, which may be amended from time to time in CAE Healthcare’s sole discretion. As such, if the option to repair on site is not successful within a reasonable timeframe, CAE Healthcare will provide Customer a return merchandise authorization (“RMA”) for the defective Product. Within ten (10) calendar days of receiving the RMA, Customer shall return the defective Product to CAE Healthcare’s designated repair facility. CAE Healthcare shall decide on the shipping method and shall pay for shipping costs (subject to the type of warranty covering the defective Product).
11.3. Any warranted part which is repaired or exchanged shall have a warranty period equivalent to the longer of CAE Healthcare standard warranty for parts indicated below in Section 11.4 or the remainder of the Warranty Period.
11.4. Repairs post Warranty: If a CAE Healthcare’s Product is the object of repairs outside of the Warranty Period, CAE Healthcare warrants a) that the repairs will be performed in a competent and workmanlike manner and b) all parts used to repair the Product will comply with published specifications, including parts that may be refurbished, used, or of like materials, and such replaced parts will bear a warranty period of one hundred eighty (180) days from delivery of the repaired item, which warranty is subject to the terms contained in Section 11.2, 11.6 and following.
11.5. Notwithstanding anything contained in this Section 11, Customer acknowledges that there is no warranty for consumable material.
11.6. Conditions of Warranty Services. The above remedies are available only (i) if CAE Healthcare is notified in writing, within the Warranty Period or, as applicable the warranty period for the repairs post warranty, upon discovery of the defects by Customer, (ii) Customer follows CAE Healthcare’s instructions for the return of the defective Products, and (iii) if the Products have not been (a) altered, or modified by any party other than CAE Healthcare or a third party provider approved by CAE Healthcare; (b) subjected to negligence, or computer or electrical malfunction; or (c) used, adjusted, or installed other than in accordance with instructions furnished by CAE Healthcare. Should Customer hire a third party independent contractor not contracted by CAE Healthcare to perform services for Customer using the Products, or should said contractor modify or in any way alter the Products, CAE Healthcare shall have no liability to Customer for said services, modifications, or alterations. Customer agrees to assume the entire risk of using the Products.
11.7. WARRANTIES EXCLUSIVE. THE FOREGOING WARRANTIES AND REMEDIES ARE EXCLUSIVE, PERSONAL AND NON TRANSFERABLE, AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CORRESPONDENCE WITH DESCRIPTION, AND NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
11.8. Disclaimer: Some countries, states, or provinces do not allow the exclusion or limitation of implied warranties or the limitation of incidental or consequential damages, so the above limitations and exclusions may be limited in their application. When implied warranties may not be excluded in their entirety, they will be limited to the duration of the applicable written warranty. This warranty gives Customer specific legal rights; Customer may have other rights that may vary depending on local law. Statutory rights, which may not be excluded or limited, are not affected by this clause.
12. FORCE MAJEURE
12.1. Dates and times by which CAE Healthcare is required to perform any obligations under this Agreement or its corresponding CAE Healthcare quotation shall be postponed automatically for the period of time that CAE Healthcare is prevented from meeting such obligations by reason of force majeure, act of God or any cause beyond its reasonable control.
13. SPECIAL TERMS FOR PRODUCTS SOLD IN THE US
13.1 The Products are “Commercial Items” as defined in the Federal Acquisition Regulations §2.101 and may consist of “Commercial Computer Software” and “Commercial Computer Software Documentation” in accordance with Federal Acquisition Regulations §12.212 and DFARS §227.7202.
13.2 Any use, modification, reproduction, release, performance, display, or disclosure of the Software and/or Data by the U. S. Government, or any of its units or agencies shall be governed solely by the terms of this Agreement and any End-User License Agreement. Any technical data provided by CAE Healthcare with the Products that is not covered by the above provisions is deemed to be "technical data-commercial items" pursuant to DFARS 252.227.7015(a).
14. LIMITATION OF LIABILITY
14.1. Customer acknowledges that the Product is a simulator and agrees to use it solely as en educational tool. AT NO TIME SHALL THE PRODUCT BE USED TO DIAGNOSE OR CURE A HUMAN BEING’S CONDITION OR IN A LIFE-SAVING SITUATION. USE OF THE PRODUCT WITH REAL SUBJECTS COULD CAUSE SERIOUS INJURY OR DEATH.
14.2. The Products cannot be used in any device or application where the failure, malfunction or inaccuracy of the Product carries a risk of death or serious bodily injury, such as, but not limited to moving vehicles, medical equipment, life support or other application representing a similar degree of hazard. Any such use is prohibited without prior written agreement of CAE Healthcare under terms intended to allocate the risks of selling the Product for such uses. Customer will indemnify, defend and hold CAE Healthcare harmless from all claims, losses, damages and expenses, including attorneys’ fees arising from any such prohibited use of the Products.
14.3. CAE HEALTHCARE SHALL NOT BE RESPONSIBLE FOR THE COMPETENCY OF ANY PERSON WHO MAY RECEIVE TRAINING BASED ON THE PRODUCT OR FOR THE EXERCISE OF ITS SKILLS BY SUCH PERSON AFTER COMPLETION OF ANY COURSES USING THE PRODUCT. CAE HEALTHCARE DOES NOT GUARANTEE THAT ANY PERSON RECEIVING TRAINING FROM THE PRODUCT DELIVERED PURSUANT TO THE COMMERCIAL AGREEMENT WILL ACHIEVE THE NECESSARY PROFICIENCY TO QUALIFY FOR ANY LICENSE, CERTIFICATES OR RATINGS ISSUED BY ANY REGULATORY AGENCY OR GOVERNMENT AUTHORITY.
14.4. IT IS FURTHER UNDERSTOOD THAT CAE HEALTHCARE SHALL ALSO HAVE NO LIABILITY WHATSOEVER CONCERNING DAMAGES ARISING OUT OF OR RELATING TO UNAUTHORISED ACCESS AND/OR ALTERATION OR DESTRUCTION, BY ANY THIRD PARTY, OF ANY DATA CREATED BY A CAE HEALTHCARE PRODUCT, OR THE CUSTOMER’S COMPUTER SYSTEM.
14.5. IN NO EVENT WILL CAE HEALTHCARE BE LIABLE FOR ANY LOSS OF USE, LOSS OF PROFIT, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF CAE HEALTHCARE HAS BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL CAE HEALTHCARE’S LIABILITY TO CUSTOMER FOR ANY CLAIM, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE PURCHASE PRICE OF THE PRODUCT PAID BY CUSTOMER.
15. LIMITED REMEDIES FOR INFRINGEMENT
15.1. In the event Customer learns that there is, or may be, any infringement or unauthorized use of the Product or disclosure of Confidential Information, Customer shall promptly notify CAE Healthcare in writing of same. In the event of a possible infringement or unauthorized use of the Product, CAE Healthcare retains the sole right, in its sole discretion, to commence a legal action or to take any action in response thereto. Customer shall cooperate and provide all available information and assistance to CAE Healthcare in such regard. CAE Healthcare shall not be bound by any settlement or compromise of any charge of infringement made without its written consent. Customer acknowledges that CAE Healthcare shall have the right to take such measures which CAE Healthcare deems appropriate to minimise any potential damages due to any alleged claim. Customer agrees not to assert against CAE Healthcare any infringement claims on the Software, Data and/or the Products.
15.2. If a final judgment is obtained prohibiting the use by Customer of any part of the Product by reason of infringement of a registered copyright or patent, CAE Healthcare will, at its option and expense, either (i) procure for Customer the right to continue to use the Product; (ii) modify the Product so that it becomes non-infringing; or (iii) repurchase/reimburse from Customer the fee paid for the Product and/or documentation less depreciation at the rate of twenty-five percent (25%) per year, or pro rata for part of the year, from the date of commencement of the term of use of the Product to the date of repurchase of the Product.
15.3. LICENSEE ACKNOWLEDGES THAT THE ABOVE REMEDIES ARE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO LICENSEE RELATED TO CLAIMS FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
16. RESALE OF PRODUCT
16.1 Unless Customer is a CAE Healthcare authorized distributor of Products, Customer is prohibited from purchasing Products to resell same for profit, or to resell the Products for profit.
16.2 Any re-sale of Products by Customer is subject to CAE Healthcare’s consent, not to be unreasonably withheld, and to export laws. Prior notification of potential transferee, location where the Product will be moved and a written undertaking, enforceable by CAE Healthcare, from the potential transferee agreeing to abide by the terms of this Agreement shall be provided to CAE Healthcare. Any re-sale without prior CAE Healthcare’s written consent is deemed null and void.
17.1. CAE Healthcare may terminate this Agreement, immediately upon written notice to the Customer, should the Customer:
(a) make an assignment for the benefit of creditors, or any proceedings are instituted by any party or against it seeking to declare it bankrupt or insolvent, or seeking liquidation, winding-up, reorganization, arrangement, adjustment, protection, relief or composition of its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or for any substantial part of its property;
(b) attempt to, directly or indirectly, assign or transfer any of the rights granted to it pursuant to this Agreement without CAE Healthcare’s prior written authorization; or
(c) disclose in whole or in part any confidential information, uses the Product otherwise than as authorized herein or is otherwise in breach of its obligations to protect the intellectual property contained in the Products including, without limitation a breach of Section 8 (Product Intellectual Property).
17.2. In addition, should Customer fail to comply with any other terms and conditions of this Agreement and such failure is not cured or remedied to CAE Healthcare’s satisfaction within ten (10) days after receipt of CAE Healthcare’s written notice, CAE Healthcare may terminate this Agreement immediately.
17.3. Upon termination of this Agreement, Customer agrees to immediately discontinue use of the Product, and to return same and any Data provided to Customer to CAE Healthcare as well as any copies, summaries or extracts thereof, with any associated CD ROM(s), keys, dongles or other devices as may be directed by CAE Healthcare. At CAE Healthcare’s request, Customer shall promptly provide a written certificate signed by an officer of Customer confirming that such items have been returned to CAE Healthcare or destroyed as so directed by CAE Healthcare.
17.4. The following shall survive and continue in full force and effect notwithstanding any termination of this Agreement: Section 8 (Product Intellectual Property), Section 14 (Limitation of Liability), 18 (Governing Law) as well as any other clauses which by their nature and context are intended to survive.
18. GOVERNING LAW
18.1. This Agreement shall be governed by, subject to, and interpreted according to the laws of the State of Florida, U. S. A., without regard to its conflict of law rules. In all cases, the Parties expressly exclude and waive the application of the United Nations Convention on Commercial Agreements for the International Sale of Goods (1980) (Vienna Sales Convention) as amended.
18.2. The exclusive forum for the resolution of any and all disputes arising out of or in connection with this Agreement shall be a court of appropriate jurisdiction located in the State of Florida, U.S.A. Each Party hereby waives any right that it might otherwise have to object to such venue or seek dismissal of the action on the basis of forum non-conveniens. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
18.3. Notwithstanding the foregoing, if a party seeks injunctive proceedings to preserve confidentiality obligations or intellectual property rights, then it is entitled to seek relief before the competent court/body of any jurisdiction.
19.1. Notices: Notices or communications pertaining to this Agreement must be given in writing and delivered to the addressee at the address indicated in the quotation (or such change thereto duly communicated in writing by a party to the other) by hand, messenger, or fax, and, if so delivered shall be deemed to have been received by the addressee on the day on which it shall have been actually received, signed as received, or if faxed, shall be deemed to have been received by the addressee upon the next business day following electronic acknowledgement.
19.2. No third-party beneficiaries. Nothing in this Agreement shall be construed as creating or giving rise to any rights for any third parties or any persons other than the parties to this Agreement.
19.3. Succession and Assignment. Customer may not assign or delegate this Agreement in whole or in part, expressly or by operation of law, without CAE Healthcare’s prior written consent. CAE Healthcare may assign this Agreement, in whole or in part, and/or its rights and obligations, in CAE Healthcare’s sole discretion, to any party; This Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. Any assignment of this Agreement, or any license granted herein, in violation of the provisions of this Section shall be void.
19.4. Export Controls. Customer acknowledges that the laws and regulations of the United States may restrict the export and re-export of commodities and technical data of United States origin, including the Products. Customer agrees that it will not export or re-export Products of, or containing items of, United States origin, in any form, without the appropriate United States and foreign governmental licenses.
19.5. Confidentiality of Agreement. The terms of this Agreement shall be treated as confidential by the parties, and shall not be disclosed by either party except as required by law, to their financial and/or legal advisers, or in the event of potential transactions for the sale of substantially all of its business or assets of the business unit of a party. Notwithstanding the above, CAE Healthcare shall be entitled to identify Customer and reproduce Customer’s brand, at no cost, in CAE Healthcare’s press releases and other mass marketing material, such as promotional material and CAE Healthcare’s website.
19.6. No Waiver. No delay or omission by either party hereto to exercise any right or power occurring upon any non-compliance or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power to be construed to be a waiver thereof. A waiver by either of the parties hereto of any of the covenants, conditions or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition, or agreement herein contained.
19.7. Preamble/Headings. The preamble forms an integral part of this Agreement. The division of this Agreement into Clauses, Articles, sections, subsections and other subdivisions and the insertion of headings are for convenience of reference only and will not affect the construction or interpretation of this Agreement.
19.8. Severability. If any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
19.9. Precedence. In the event of conflict between this Agreement and the quotation, this Agreement shall prevail. In the event of conflict between this Agreement and the End-User License, the End-User License shall prevail.
19.10. Entire Agreement. The CAE Healthcare quotation, this Agreement, the End-User License constitute the complete agreement of the parties with respect to the subject matter referred to herein, and supersede any other agreements, written or oral, concerning the subject matter hereof.
19.11.Language: The parties declare that they have requested and hereby confirm their express wish that this Agreement, and related agreements and documents be drawn up in the English language and that any notification, letter or any other communication from a party to the other shall be solely in the English language.
End of CAE Healthcare HEPGTC
Introduction to Your Support and Maintenance Services
With the purchase of any brand new CAE Healthcare Product, customers are provided, free of charge, a one-year limited warranty, which provides the Customer with CAE Healthcare’s support and maintenance coverage on the product. The level of warranty coverage provided free of charge depends on the product purchased.
Additionally, any time a customer wishes to either renew its support and maintenance services or upgrade those services, the customer will be required to purchase one of our support and maintenance plans. In the event that a Customer does not wish to be covered under a support and maintenance plan, but does wish to have CAE Healthcare support, the Customer may elect to purchase individual onsite repair services. The purchases of these plans and services are controlled by the terms and conditions provide within this document.
Further details and specification of the various levels of support CAE Healthcare offers through its plans can be found in that plans specifications, which can be found at www.caehealthcare.com . We also encourage you to reach out to your CAE Healthcare Account Manager if you have any other questions or require any additional information. The Account Management Team can be emailed at email@example.com.
Support and Maintenance Agreement
This Support and Maintenance Agreement (“Agreement”) shall govern the support and maintenance services set forth in the associated quotation (“Services”), and applies to all quotations made, order acknowledgments sent, purchase orders received, and invoices sent by CAE Healthcare to a third party (“Customer”).
This Agreement may not be added to, modified, superseded, or otherwise altered, except by a writing signed by an authorized CAE Healthcare representative. Any terms or conditions contained in any acknowledgement, purchase order, or other communication of Customer, which are inconsistent with, different from, or additional to, the terms and conditions of this Agreement, are hereby rejected. This Agreement expressly limits acceptance to the terms and conditions of this Agreement.
To the extent that Customer’s acknowledgement, purchase order, or other communication is deemed to be an acceptance of CAE Healthcare’s offer of Services, such acceptance is expressly made on condition of assent by Customer to the terms of this Agreement. Neither CAE Healthcare’s acknowledgment of an order, commencement of performance, nor delivery shall be deemed to be acceptance of any terms of Customer that are inconsistent with, different from, or additional to, the terms of this Agreement.
1. Interpretations and Definitions
Whenever used in this Agreement, the following terms shall have the meaning set out below:
“Product” shall mean the equipment (including both its associated hardware and software) identified in the quotation which shall be covered by the Services described in this Agreement.
“Consumables” shall mean parts which are intended to be consumed through the use of the Product and subject to wear during the normal operation of the Product, such as batteries, filters, and chest skins.
“Support and Maintenance Program” shall mean the product specific support plan purchased by the Customer, which shall be stated within the quotation.
“Support and Maintenance Specifications” shall mean any materials within the quotation, attached to the quotation, or otherwise provided to Customer which describe the specifications of the Support and Maintenance Program quoted to the Customer.
“Services” shall mean the services stipulated in the associated quotation, the maintenance and technical support services specified in Article 6, and any additional services, including Out-Of Warranty Services, as described in Article 8.
“Out-Of-Warranty Services” shall mean any services provided to a Customer who is not actively enrolled in a Support and Maintenance Program. Such Out-Of-Warranty Services shall be as stated in the quotation.
“Updates” shall mean a version of the Product containing any minor changes, additions, corrections, replacements, alterations or improvements to the Product which do not alter its functionality, and any related documentation.
“Upgrades” shall mean a version of the Product of the same generation to which substantial new functionalities or other substantial changes are introduced, including any new programs and modules related thereto, and any related documentation.
“Initial Warranty” shall mean the support and maintenance coverage included with the initial purchase of the Product by the Customer. The Support and Maintenance Program which is included as a part of this Initial Warranty shall be stated in the quotation.
“Support and Maintenance Renewal” shall mean any purchase of a Support and Maintenance plan for a specific term, subsequent to the termination of the Initial Warranty.
“Support and Maintenance Upgrade” shall mean any purchase which increases the coverage of the Customer’s Initial Warranty.
“Preventative Maintenance Visit” shall mean an annual onsite service visit by CAE Healthcare which is further described in Article 7. Not all Support and Maintenance Programs include Preventative Maintenance Visits.
2.1. Unless otherwise specified in the quotation, the Term for this any Support and Maintenance Program shall be for one (1) year. In the event of a Support and Maintenance Renewal, the Term shall begin on the date specified within the quotation. For the Initial Warrant, including any Support and Maintenance Upgrade to that Initial Warranty, the Term shall begin thirty (30) days after Product shipment to the Customer.
2.2. Customer may cancel their Support and Maintenance Program at any time by providing CAE Healthcare written notice; however in no event will Customer be entitled to any refund for any and all payments already made to CAE Healthcare prior to such cancellation.
3. Purchase Orders
3.1. All orders placed to CAE Healthcare for Services shall be subject to acceptance by CAE Healthcare. CAE Healthcare shall not be liable for any damages to Customer or to any other person for CAE Healthcare’s failure to fill any orders or error in filling any orders for any reason whatsoever.
3.2. At CAE Healthcare’s discretion, Customer may be required to ship Product to CAE Healthcare for evaluation testing to determine if Product is eligible for Support and Maintenance Renewal. Customer shall be required to pay an additional fee for such evaluation testing.
4.1. Payment is due thirty (30) days from the date of invoice (NET 30). CAE Healthcare will send invoices to Customer’s designated address. Any payment received by CAE Healthcare after due date shall be subject to a late payment charge not to exceed 1% per month (12% per year), or less, if required by applicable law, until outstanding balance, including accrued late payment charge, is paid in full.
5.1. Any taxes or other governmental charge upon production, sales, transportation, storage, or shipment of Product imposed by federal, state, municipal or other authorities shall be added to the price and must be paid by Customer, regardless of whether said tax or charge is included on the initial invoice to Customer. Tax Exemption Certificates for states into which Product is being shipped must be on file with CAE Healthcare. Otherwise, all applicable state and local taxes will be charged. These taxes will be shown on the invoice.
6.1. CAE Healthcare shall provide the services stipulated in the quotation and further outlined in the Support and Maintenance Specifications.
6.2. CAE Healthcare will be responsible for all labor charges and material required to repair the Products as stated in Support and Maintenance Specifications. Any exclusions or limitations to this coverage shall be expressly stated in the Support and Maintenance Specifications.
6.3. CAE Healthcare will provide technical support through CAE Healthcare’s Customer Service call center and email address. CAE Healthcare’s Customer Support information can be found in the Support and Maintenance Specifications, along with available times for the call center.
7. Updates and Upgrades
7.1. CAE Healthcare shall provide Customer with software fixes and Updates to all licensed CAE Healthcare software and operating systems.
7.2. Any Updates delivered to Customer under this Agreement shall be delivered in the number of copies and for the specific Products indicated in the quotation, in object code only.
7.3. Software Upgrades of the Product are not covered under this Agreement. Such Upgrades will be available to Customer at CAE Healthcare’s then current commercially available price.
7.4. CAE Healthcare’s terms regarding license, use, non-disclosure and ownership of its Products shall equally apply to Updates and Upgrades delivered to Customer as per this Agreement, as though written at length herein.
8. Preventative Maintenance Visits
8.1. In the event that Customer purchases a Support and Maintenance Program which includes a Preventative Maintenance Visit (which shall be stated in the applicable Support and Maintenance Specifications), such Preventative Maintenance Visit will occur one (1) time annually during the Term of the Support and Maintenance Program.
8.2. Preventative Maintenance Visits are provided in order to inspect, clean, calibrate, and update the Product, and are not intended to be a repair visit.
8.3. It is the sole responsibility of the Customer to schedule the Preventative Maintenance Visit with CAE Healthcare. Customer must contact CAE Healthcare to schedule the Preventative Maintenance Visit at least one (1) month prior to the visit. If Customer fails to schedule the Preventative Maintenance Visit within the relevant year, Customer shall forfeit its right to receive the Preventative Maintenance Visit.
8.4. Customer shall be required to complete a Preventative Maintenance checklist prior to the scheduled date for the Preventative Maintenance Visit.
9. Additional Services
9,1, In the event that Customer elects to purchase Out-Of-Warranty Services, Customer shall be required to pay for such additional time and materials provided with those Services, and such charge shall be billable to Customer at CAE Healthcare’s then standard rate.
9.2. Furthermore, if the Customer requires additional time and materials which are not covered in the purchased Support and Maintenance Program, which may be a result of the reasons specified in Article 9.2 below, Customer shall be required to pay for such time and materials, and such charge shall be billable to Customer at CAE Healthcare’s then standard rate.
10. Obligations of Customer
10.1. Customer shall designate a person at Customer’s premises for each reported problem that can be contacted for further information and verification that any problem has been resolved.
10.2. Customer shall ensure that the Product is used at all times under normal conditions. This Agreement does not cover services requested as a result of improper use of the Product, or with respect to causes that are not attributable to CAE Healthcare. These services will be invoiced to Customer at CAE Healthcare’s then-standard rates and will be payable within thirty (30) days of receipt of an invoice to this effect. Causes which are not attributable to CAE Healthcare include but are not limited to:
(i) Use of the Product with other equipment not pre-approved by CAE Healthcare;
(ii) Use of the Product by unqualified personnel;
(iii) Accident; unusual physical, electrical or electromagnetic stress; neglect; misuse; failure or fluctuation of electric power, air conditioning or humidity control; excessive heating; fire and smoke damage; operating of the Product with other media and hardware, software or telecommunication interfaces not meeting or not maintained in accordance with the manufacturer’s specifications; or causes other than ordinary use;
(iv) Improper installation of Updates or Upgrades by Customer or use of the Product, Updates or Upgrades that deviate from any operating procedures indicated in CAE Healthcare’s documentation related to the Product.
10.3. Customer shall take all steps necessary to carry out the procedures, recommendations and directives indicated by CAE healthcare in answer to queries made by Customer within a reasonable time after such procedures, recommendations and directives have been communicated to Customer.
10.4 For any services offered at Customer’s site, Customer must ensure access and availability to the Products. It is not the responsibility of CAE Healthcare to move Customer’s Product in order to be able to provide services.
10.5 Additionally, Customer shall be required to confirm the visit with the CAE Healthcare technician prior to the site visit. (“Confirmation Call”). Customer shall inform the technician of the Products which require repair. The technician shall only perform work on the issues which are established during the Confirmation Call.
10.6. Some Support and Maintenance Services may require internet connectivity to the Customer’s Product. It shall be the Customer’s responsibility to ensure the Products have such internet access.
10.7. All packaging received by the Customer upon initial shipment of the Products should be kept by the Customer, to be used for any return shipments of the products to CAE Healthcare for repairs. In the event that Customer fails to retain the packaging and requires new packaging for shipment, Customer will be charged for the replacement packaging materials.
10.8. In carrying out its obligations, CAE Healthcare may, at its discretion and solely for the purposes of monitoring the quality of CAE Healthcare’s response, record part of all of the calls between Customer and CAE Healthcare. By utilizing these Services you consent to have you calls with CAE Healthcare monitored or recorded.
11. Limited Warranty
11.1. For the term of this Agreement, CAE Healthcare warrants against defective materials or workmanship under normal use and service, and that the Product will substantially comply with the published specifications set forth in CAE Healthcare’s user documentation for the Products. At the sole discretion of CAE Healthcare, the exclusive remedy of the Customer shall be repair of defective product or replacement of defective product with current version (or configuration) of the identical product. CAE Healthcare makes no warranty as to the Products after the term of this Agreement. CAE Healthcare does not warrant that the Products will meet Customer's requirements or will operate in combinations with other hardware, software or non-supported platforms/operating systems/databases, which may be selected for use by Customer, or that the operation of the Products will be uninterrupted or error-free.
11.2 Customer's sole and exclusive remedy during the term of this Agreement shall be, at CAE Healthcare's election, to either (i) provide services to correct any defects, which would cause the Products not to comply with the published specifications, (ii) replace the defective Products, or part thereof, with Products that comply with the published specifications, including parts that may be refurbished, used, or of like materials or (iii) terminate the Agreement immediately and refund the price paid by Customer in connection with same relating to the defective Products, less a pro rata amount equal to period during which Services were provided to Customer under this Agreement.
11.3. Any warranted part which is repaired or exchanged shall have a warranty period equivalent to the remainder of the Term of the Support and Maintenance Program or 180 days, whichever is greater. In the event that such part is provided for an Out-Of-Warranty Services, the part shall be warranted for 180 days.
11.4. The above remedies are available only (i) if CAE Healthcare is notified in writing, during the term of this Agreement upon discovery of the defects by Customer, (ii) Customer follows CAE Healthcare’s instructions for the return of the defective Products, and (iii) if the Products have not been (a) altered, or modified by any party other than CAE Healthcare or a third party provider approved by CAE Healthcare; (b) subjected to negligence, or computer or electrical malfunction; or (c) used, adjusted, or installed other than in accordance with instructions furnished by CAE Healthcare. Should Customer hire a third party independent contractor not contracted by CAE Healthcare to perform services for Customer using the Products, or should said contractor modify or in any way alter the Products, CAE Healthcare shall have no liability to Customer for said services, modifications, or alterations. Customer agrees to assume the entire risk of using the Products.
11.5. Notwithstanding anything contained in this Section, Customer acknowledges that there is no warranty for Consumables and expendable material (including chest skins), unless damage has occurred due to a defect in materials or workmanship.
11.6. CAE Healthcare warrants that the Services mentioned in this Agreement will be in accordance with general accepted industry standards.
11.7. EXCEPT SUCH AS IS EXPRESSLY SET FORTH HEREIN, CAE HEALTHCARE MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY OF ANY KIND RESPECTING ANY MAINTENANCE SERVICES PERFORMED HEREUNDER OR ANY MATERIALS FURNISHED HEREUNDER. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIONS HAVE BEEN MADE EXCEPT THOSE MADE HEREIN.
This warranty is void if: (1) the Product has been damaged by accident or unreasonable use, neglect, alteration, faulty or negligent installation, abuse, misuse or other causes not arising out of defects in material workmanship; (2) Damage or defects due to handling by Customer or incurred during shipment; (3) the Product labeling or Company’s name has been altered or defaced; or (4) the Product has been modified or repaired by Customer, or any third-party not expressly authorized in writing by CAE Healthcare to perform such modifications or repairs. Customer will indemnify and hold harmless CAE Healthcare, its officers, employees, and agents for any costs of injury or loss of training time resulting from unauthorized repair or modification of the Product.
12. Limited Liability and Indemnification
12.1. THE CUMULATIVE LIABILITY OF CAE HEALTHCARE FOR ALL CLAIMS ARISING UNDER OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE MAINTENANCE/WARRNATY FEES PAID TO CAE HEALTHCARE WITHIN THE PRIOR YEAR. CAE HEALTHCARE WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL OR SPECIAL DAMAGES FOR ANY BREACH OF WARRANTY OR ANY DAMAGES FOR NEGLIGENCE OR FOR THE COST OF REMOVAL, TRANSPORTATION OR REINSTALLATION OF DEFECTIVE OR REPLACEMENT GOODS.
12.2. Customer shall indemnify, and hold CAE Healthcare, its affiliates, agents, and employees from and against any liability, claim, demand, loss, damage, cost, expense arising out of or in connection with the negligent acts of the Customer while CAE Healthcare is located on Customer’s premises. Customer agrees that it shall not settle any claim, action, or proceeding without first obtaining CAE Healthcare's prior written consent.
13. Administrative Provisions
13.1 Applicable Law: This Agreement shall be governed by the laws of the State of Florida. Venue shall be in Sarasota County, Florida. At CAE Healthcare’s sole election and determination, CAE Healthcare may select an alternative forum, including arbitration or mediation, to adjudicate any dispute arising out of this Agreement. The parties expressly exclude and waive the application of the United Nations Convention on Commercial Agreements for the International Sale of Goods (1980) (Vienna Sales Convention) as amended.
13.2. Assignment: Customer may not assign or transfer any of the rights or obligations under this Agreement without the prior written consent of CAE Healthcare, provided that the Customer may assign this Agreement and its obligations hereunder to any successor to its business by merger or consolidation or to any party acquiring substantially all of Customer’s assets.
13.3. No Third-Party Beneficiaries: Nothing in this Agreement shall be construed as creating or giving rise to any rights for any third parties or any persons other than the parties to this Agreement.
13.4. Entirety: This Agreement constitutes the entire agreement between CAE Healthcare and Customer, superseding all prior or contemporaneous understandings, agreements and correspondence between the parties.
13.5. Modification: No provision of this Agreement shall be deemed waived, amended or modified by either party unless the waiver, amendment or modification is in writing and signed by each of the parties to this Agreement.
13.6. Waiver: No omission or delay by CAE Healthcare at any time to enforce a right or remedy reserved to it or to require performance by Customer of any of the terms, covenants, or provisions of this Agreement at the times designated, shall be a waiver of such right or remedy to which CAE Healthcare is entitled, nor shall it in any way affect the right of CAE Healthcare to subsequently enforce such provisions.
13.7. Severability: If any one or more of the provisions of this Agreement is for any reason held invalid, illegal or unenforceable, the remaining provisions of this Agreement will be unimpaired.
13.8. Notice: Any notice provided for in this Agreement shall be in writing and sent by certified or registered mail, postage prepaid, to the parties at the addresses stated in the quotation (or to such other addresses as either party shall designate by notice to the other).
End of Support and Maintenance Agreement
The following terms apply to purchase of any CAE Healthcare Training Courses (“Training”) and shall be in addition to CAE Healthcare’s Healthcare Education Products General Terms and Conditions for the purchase of CAE Healthcare Products
1.1. Upon Acceptance of any Purchase Order which includes the purchase of Training, CAE Healthcare’s Training Coordinator will contact Customer to schedule Training. Training will not be scheduled until Customer replies to the Training Coordinator to supply and confirm the appropriate Training dates. All sales of Training are final.
1.2 Training must be scheduled and completed within nine (9) months of the date in which any associate simulator is installed at Customer Site. In the event that Training is purchased separately and apart from any CAE Healthcare simulator, Customer must schedule and complete Training within nine (9) months of the date of purchase. If Customer fails to schedule and complete such Training within this time frame, Customer shall forfeit its right to utilize the Training and shall not be entitled to a refund.
1.3. Training which shall be performed at Customer Facility (“On-Site”) may not be scheduled earlier than twenty-one (21) days from the date of scheduling. In the event that Customer requires training within twenty-one (21) days from the date of scheduling, CAE Healthcare will charge Customer an additional fee of one thousand dollars ($1000.00) as a result of increased travel costs. CAE Healthcare will not schedule the Customer until the additional fee of one thousand dollars ($1000.00) is paid in full.
1.4. Once Training has been scheduled, the Training Coordinator will contact the Customer with a follow-up questionnaire regarding Pre-Training Setup. Customer is required to provide answers to this questionnaire at least ten (10) days prior to the scheduled Trainings. In the event that Customer fails to provide these answers as required, CAE Healthcare reserves the right to reschedule the Training.
2.1. Training Conducted at a CAE Healthcare Facility (“In-House”):
Customer may reschedule without penalty any Training scheduled at the CAE Healthcare Facility by supplying CAE Healthcare’s Training Coordinator with seven (7) days advanced written notice prior to the class starting date. If notice is not received by CAE Healthcare at least seven (7) days prior to the scheduled class starting date, Customer shall be required to pay a rescheduling fee of one hundred dollars ($100.00) in order to reschedule.
2.2. Training Conducted at a Customer Facility (‘On-Site”):
Customer may reschedule without penalty any Training scheduled at the Customer’s Facility by supplying CAE Healthcare’s Training Coordinator with twenty-one (21) days advanced written notice prior to the class starting date. If notice is not received by CAE Healthcare at least twenty-one (21) days prior to the scheduled class starting date, Customer shall be required to pay a rescheduling fee of one thousand dollars ($1000.00) in order to reschedule. CAE Healthcare will not reschedule the Customer until the rescheduling fee of one thousand dollars ($1000.00) is paid in full.
2.3. Training that is properly rescheduled in accordance with this policy must be rescheduled and completed with the originally required timeframe of nine (9) months.
2.4. In the event that Customer elects not to pay the required rescheduling fee, Customer will forfeit its right to utilize the purchased training and shall not be entitled to a refund.
3. Additional Conditions
3.1. All CAE Healthcare In-House training is conducted at a CAE Healthcare training facility. Transportation and lodging are the responsibility of the Customer.
3.2. In order for the Customer to purchase and register for a given Training course, Customer must have completed any prerequisite courses prescribed by CAE Healthcare.
3.3. In the event that the Customer purchases Technician Training, Customer understands that CAE Healthcare is not responsible for the competency of the trainee, and shall not be responsible for any damage to any products that result from actions of the trainee.
3.4. CAE Healthcare does not guarantee that any person receiving Training will achieve the necessary proficiency to qualify for any license, certificates or ratings issued by any regulatory agency or government authority.
CAREFULLY READ THE FOLLOWING LICENSE. YOU ACCEPT AND AGREE TO BE BOUND BY THIS END USER LICENSE AGREEMENT BY CLICKING THE BUTTON LABELED "ACCEPT" THAT IS DISPLAYED. IF YOU DO NOT AGREE TO THIS END USER LICENSE AGREEMENT, CLICK THE BUTTON LABELED "DECLINE" AND THE SOFTWARE ACCESS WILL BE PROHIBITED.
The software you are about to access is provided to you pursuant to the purchase of the Product by the legal entity which employs you, or which you represent (the “Licensee” or “You”), from CAE Healthcare. This purchase of the Product is subject to CAE Healthcare’s Healthcare Education Products General Terms and Conditions (the “HEPGTC”) and this End-User License agreement (“License”). The HEPGTC can be found at________
1. Interpretations and Definitions
Whenever used in this License, the following terms shall have the meaning set out below:
“Authorized Users” shall mean any person authorized to access the Produce, which shall include the Licensee’s employees, agents, representatives, medical staff and students.
“Confidential Information” means any and all scientific and technical information which is in the possession of, or belonging to, CAE Healthcare and relating to the Product, including without limitation, all Data, Software, trade secrets, know-how, processes, methodologies, samples, components, analyses, compilations, guides and other information or documents prepared by CAE Healthcare, its subsidiaries and affiliates and/or their officers, servants, agents, representatives, employees or advisers which contain or are otherwise generated from or reflect any CAE Healthcare proprietary information, whether or not covered by intellectual property rights or explicitly designated as confidential or proprietary, which is disclosed by any means in written, oral, electronic, or any other form.
“Data” means any documentation or other information provided to Licensee in relation with the Product.
“Product” means any equipment, components, parts, and materials purchased by the Licensee.
“Purpose” means the use of the Software and the Data solely for the operation and maintenance of the Product, and the use of the Product solely as an educational tool.
“Software” means the software, in object code only, embedded in or bundled with the Product or required to operate the Product
“Work” means any images created by the Products which may have the option to be save or reproduced by the Licensee.
2.1. In consideration of Licensee’s agreement and compliance with the terms and conditions contained in the HEPGTC and in this License, CAE Healthcare grants to Licensee a personal, non-exclusive, non-transferable license to use the Software and Data exclusively with the Product, and with the device on which this License appears.
2.2. Without limiting the foregoing or any other terms in this License, Licensee shall, and shall ensure that any Authorized Users:
2.3. Except for the License granted herein, CAE Healthcare grants no express or implied right under any patent, copyright, mask work right, trademark, know how or other intellectual property rights. The Licensee shall not obtain any rights to CAE Healthcare’s property, or any part thereof, by implication, estoppel or otherwise. Title to and full ownership of any trade secrets and other intellectual property rights related to the Product and components thereof shall remain with CAE Healthcare and, if applicable, its suppliers. For clarification, Licensee agrees that the source code for the Software is a trade secret of CAE Healthcare and only CAE Healthcare shall have the right to alter, maintain, enhance or otherwise modify the Software.
(a) not copy (save and except for normal back up and disaster recovery purposes provided such copy shall include CAE Healthcare’s copyright and any other proprietary notices indicated on the Software and Data), ghost, export or produce any derivative works from the Product, or any part thereof, not network the Product without CAE Healthcare’s prior written approval, or make it available for concurrent use;
(b) not sell, attempt to sell or transfer (unless in compliance with the HEPGTC), sublicense, encumber the Software or Data;
(c) not modify the Product in any way, combine with other programs, or reverse engineer, screen scratch, decompile or disassemble any Software nor otherwise attempt to create or derive the source code related thereto;
(d) not deface or remove any copyright or proprietary notices;
(e) not use the Product without the key, if provided with the Product, or attempt to develop or develop any means or technology which would enable Licensee to bypass the use of the key to operate the Product;
(f) prevent anyone other than Authorized Users from accessing or using the Product;
(g) not incorporate the Product, in whole or in part, to any product or service that Licensee would make available to a third party, on a commercial basis or not.
2.4. Notwithstanding anything else contained in this License, in no event shall Licensee use the Product and/or Confidential Information to enable, support, or otherwise aid Licensee or a third party to develop any product, software or service competitive with any of CAE Healthcare’s products.
2.5. CAE Healthcare reserves the right to embed a software security mechanism within the Product to monitor usage of the Product to verify Licensee’s compliance with this Agreement, as well as to control access to the Software through use of license administration software.
2.6. Licensee hereby recognizes that the entire rights, title and interests in and to Work remain the exclusive property of CAE Healthcare. Licensee shall not modify such Work in any way whatsoever and shall not remove or alter any CAE Healthcare notices. However, Licensee is permitted to produce and reproduce such Work only for non-commercial educational purposes.
3. Consent to Use of Collected Data and Feedback
3.1. Licensee agrees that CAE Healthcare may collect and use technical data and related information, times (“Collected Data”), including but not limited to technical information about your Product that is gathered periodically to facilitate the provision of Software updates, Product support and other services related to your Product such as Software feature usage and run times. Such Collected Data shall be anonymous, and shall not personally identify any individual users. In the event that Licensee wishes to opt-out of permitting CAE Healthcare from having access to Collected Data, Licensee must inform CAE Healthcare of this requirement.
3.2. Upon the request of CAE Healthcare, Licensee agrees to provide CAE Healthcare, from time to time, with comments, suggestions, data, information or feedback (“Feedback”) on the Product.
3.3 Licensee acknowledges and agrees that such Feedback and Collected Data may be freely used by CAE Healthcare, at its sole discretion, for the design, development, improvement, marketing and commercialization of its products and services, without any restrictions based on confidentiality or intellectual property rights.
4. Term and Termination
4.1. This License shall become effective as of the date of your acceptance of this License and shall remain in effect until terminated as provided hereafter
4.2. This License terminates immediately upon termination of the HEPGTC.
4.3. CAE Healthcare may terminate this License immediately, upon written notice, should Licensee (a) attempt to, directly or indirectly, assign or transfer any of the rights granted to it pursuant to this License without CAE Healthcare’s prior written authorization, (b) disclose, in whole or in part, any Confidential Information, (c) use the Software otherwise than as authorized herein, or (d) is otherwise in breach of its obligations to protect the intellectual property contained in the Product. In addition, should Licensee fail to comply with any other terms and conditions of this Agreement and such failure is not cured within thirty (30) days after receipt of CAE Healthcare’s written notice, CAE Healthcare may terminate this Agreement immediately.
4.4. Upon termination of this License, Licensee agrees to immediately discontinue use of the Confidential Information and the Product, and to return same to CAE Healthcare as well as any copies.
4.5. The following shall survive and continue in full force and effect notwithstanding any termination of this License: the obligations of Licensee under Sections 2 (License), 5 (Non-Disclosure); as well as any other clauses which by their nature and context are intended to survive.
5.1. Licensee agrees to keep this License and all Confidential Information obtained hereunder in strict confidence, and shall only disclose same a) to Authorized Users solely for the Purpose and provided such access to the Product conforms, at all times, to the terms and conditions governing the use of the Product contained herein, or b) if required to be disclosed by law, and only to the extent of such disclosure and limited to the purpose requested, with prior notice to CAE Healthcare to permit it to seek an appropriate remedy to prevent the disclosure, or alternatively to agree to the terms of such disclosure.
5.2. The obligations of confidentiality, use and non-disclosure referred to in this Section 5 shall not apply to information which: (i) is or becomes publicly available through no fault of Licensee; (ii) was already in the rightful possession of Licensee prior to its receipt from CAE Healthcare; (iii) is independently developed by Licensee, provided it is not, in whole or in part, related to the Product; and (iv) is obtained by Licensee in good faith and on a non-confidential basis and without a use restriction from a third party who lawfully obtained and disclosed such information. However, Confidential Information does not come within the foregoing exceptions merely because features of it may be found separately or within a general disclosure in the public domain.
5.3. Licensee agrees to be responsible for enforcing the terms of this Section 5 and to take such action, legal or otherwise, to the extent necessary to cause anyone having access to the Confidential Information to comply with the terms and conditions set forth herein (including all actions that Licensee would take to protect its own trade secrets and confidential information but with not less than reasonable care). Licensee shall be responsible and indemnify, defend and hold harmless CAE Healthcare for any default caused by any such persons.
6. Irreparable Harm
6.1. Licensee acknowledges that the Software and Data constitute a special, irreplaceable asset of great value to CAE Healthcare, and that a breach, in any way, of any of Licensee’s obligations under Sections 2 (License), and 5 (Non-Disclosure) hereof would cause serious and irreparable harm to CAE Healthcare which may not be adequately compensated for in damages. If the Licensee breaches any of such provisions, Licensee consents to an injunction being issued against it restraining it from any further breach of such provision, without derogation from any other remedy which CAE Healthcare may have in the event of such a breach.
7.1. THE SOLE WARRANTIES PROVIDED BY CAE HEALTHCARE ARE LIMITED TO THE WARRANTIES PROVIDED IN THE HEPGTC. ANY WARRANTIES PROVIDED ARE PERSONAL AND NOT TRANSFERABLE.
8. Limitation of Liability
8.1. CAE HEALTHCARE’S LIABILITY SHALL IN NO CIRCUMSTANCES EXCEED THE LIMITATION OF LIABILITY INDICATED IN THE HEPGTC.
8.2. IN NO EVENT WILL CAE HEALTHCARE BE LIABLE FOR ANY LOSS OF USE, LOSS OF PROFIT, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF CAE HEALTHCARE HAS BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL CAE HEALTHCARE’S LIABILITY TO LICENSEE FOR ANY CLAIM, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE PURCHASE PRICE OF THE PRODUCT PAID BY LICENSEE.
9. Third-Party Software
9.1. The Software may come bundled or otherwise be distributed with open source or other third party software, which is subject to the terms and conditions of the specific license under which it is distributed. OPEN SOURCE SOFTWARE IS PROVIDED BY CAE HEALTHCARE "AS IS" WITHOUT ANY WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS EULA, AS IT RELATES TO ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH OPEN SOURCE SOFTWARE, DELL SHALL HAVE NO LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF OPEN SOURCE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Administrative Provisions
10.1 Applicable Law and Jurisdiction. This License shall be governed by, subject to, and interpreted according to the laws of the State of Florida, U. S. A., without regard to its conflict of law rules. In all cases, the Parties expressly exclude and waive the application of the United Nations Convention on Commercial Agreements for the International Sale of Goods (1980) (Vienna Sales Convention) as amended. The exclusive jurisdiction for the resolution of any and all disputes arising out of or in connection with this Agreement shall be a court of appropriate jurisdiction located in the State of Florida, U.S.A. Each Party hereby waives any right that it might otherwise have to object to such venue or seek dismissal of the action on the basis of forum non-conveniens. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS LICENSE. Notwithstanding the foregoing, if a party seeks injunctive proceedings to preserve confidentiality obligations or intellectual property rights, then it is entitled to seek relief before the competent court/body of any jurisdiction.
10.2. United States Government Licensee: If Licensee is the United States Government (“U.S. Government”) or a unit or agency of the U.S. Government, the Software and Data are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212 b) as applicable. Any use, modification, reproduction, release, performance, display, or disclosure of the Software and/or Data by the U. S. Government, or any of its units or agencies shall be governed solely by the terms of this License and the HEPGTC. Any technical data provided by CAE Healthcare with the Product that is not covered by the above provisions is deemed to be "technical data-commercial items" pursuant to DFAR Section 252.227.7015(a).
10.3. Export Controls: Licensee acknowledges that the laws and regulations of the United States may restrict the export and re-export of commodities and technical data of United States origin, including the Software. Licensee agrees that it will not export or re-export Software of, or containing items of, United States origin, in any form, without the appropriate United States and foreign governmental licenses.
10.4. Excluded Data: Licensee acknowledges that Software provided under this License are not designed with security and access management for the processing and/or storage of the following categories of data: (1) data that is classified and or used on the U.S. Munitions list, including software and technical data; (2) articles, services and related technical data designated as defence articles and defence services; (3) ITAR (International Traffic in Arms Regulations) related data; and (4) other personally identifiable information that is subject to heightened security requirements as a result of Licensee's internal policies or practices or by law (collectively referred to as "Excluded Data"). Licensee hereby agrees that Licensee is solely responsible for reviewing its data that will be provided to CAE Healthcare (or to which CAE Healthcare will have access) to ensure that it does not contain Excluded Data
10.5. No Waiver: No omission or delay by either party at any time to enforce a right or remedy reserved to it or to require performance of any of the terms of this License at the times designated, shall be a waiver of such right or remedy to which the party is entitled, nor shall it in any way affect the right of the party to subsequently enforce such provisions.
10.6 Modification: No provision of this License shall be deemed waived, amended or modified by either party unless the waiver, amendment or modification is in writing and signed by each of the parties to this License.
10.7 Severability: If any one or more of the provisions of this License is for any reason held invalid, illegal or unenforceable, the remaining provisions of this Agreement will be unimpaired.
End of End User License Agreement
CAE Healthcare’s “CAE Juno Prize Draw”
NO PURCHASE IS NECESSARY TO ENTER OR WIN. A PURCHASE OR PAYMENT OF ANY KIND WILL NOT INCREASE YOUR CHANCES OF WINNING.
SPONSOR: CAE Healthcare, Inc. 6300 Edgelake Drive, Sarasota, FL 34240 ("Sponsor").
AGREEMENT TO OFFICIAL RULES: By participating in the CAE Healthcare’s Juno Prize Draw (“Sweepstakes”), you fully and unconditionally agree to and accept these Official Rules and the decisions of the Sponsor, which are final and binding in all matters related to the Sweepstakes.
ELIGIBILITY: The Sweepstakes is open only to legal residents of the United States or the District of Columbia (excluding Rhode Island, New York, Puerto Rico and all other territories and possessions of the United States) who have completed and returned an entry form to CAE Healthcare’s booth at the 2017 INACSL Conference (the “Event”). The entering participant must be 18 years of age or older as of the commencement of the Sweepstakes. The Sweepstakes commences on June 22, 2017 at 2:00pm, and shall end on June 23, 2017 at 12:45 pm (“Sweepstakes Period”). Employees of Sponsor and its affiliates, subsidiaries, advertising or promotional agencies, their immediate family (e.g., spouses, parents, siblings, children), and persons living in the same household of any of the above employees are ineligible. Sponsor and affiliates, subsidiaries, employees, directors, officers, agents, assigns, and licensees (collectively, “Entities”) are not responsible for late, lost, damaged, illegible or incomplete entries. Limit one entry per conference attendee. Sponsor reserves the right to change the Sweepstakes rules at any time in its sole discretion, and retains the right of final decision in all matters pertaining to the Sweepstakes. Due to unforeseen circumstances that can arise from time to time, Sponsor, in its sole discretion, reserves the right to terminate the Sweepstakes at any time. The Sweepstakes is void outside the 50 United States and the District of Columbia and where prohibited or restricted by law. The Sweepstakes is subject to all applicable federal, state and local laws and regulations.
ENTRY: To enter the Sweepstakes, entrants must complete an entry form (the “Form”). Forms are available at the CAE Healthcare’s booth (booth #217) (the “Booth”) at the Event during the Sweepstakes Period. Completed Forms must be returned to the Booth no later than 12:45 PM on June 23, 2017. The Booth will be open for form submission on June 22nd, 2 pm – 6pm, and June 23rd, 10:45 am – 12:45 pm. Limit: One (1) entry per person.
PRIZES: The following prize will be awarded:
One (1) Juno (Medium Skin Tone) COMPLETE. Includes IV arm, NIBP arm, Tablet, gender conversion kit and all required electronics. Includes 10 basic simulated clinical experiences and first year Value Assurance Plan. Valued at $10,995 USD.
Certain restrictions apply. Each winner is responsible for paying all other costs and expenses related to the prize. Liability for any federal, state or local taxes, and any fees or other costs or expenses associated with the receipt or use of the prize, are the sole responsibility of each winner. Winner must provide Sponsor with a social security/ Tax ID number in order to be given a 1099. No transfer, assignment, cash redemption or substitution of the prize is permitted, except that Sponsor reserves the right in its sole discretion to substitute the prize with either the cash value of the prize or a prize of equal or greater value. The prize may be subject to additional terms, conditions, and restrictions. Sponsor is not responsible for a prize that is lost or stolen, and will not replace or refund a prize.
PRIZE DRAWING. One winner from among the eligible Sweepstakes submissions will be selected at 12:45 pm on June 23, 2017 (“Drawing Date”) by random drawing conducted by Sponsor. The winner will be announced at the booth, and will be contacted by phone and email on the day of the Drawing Date. Winner need not be present. Repeated attempts and multiple methods will be employed to notify winner, but prizes must be claimed by June 30, 2017 or the winner forfeits the prize. Prizes will be shipped directly to each winner. The winner may be disqualified and the winner's prize forfeited upon the occurrence of any of the following: (i) the failure of winner to confirm winner’s eligibility; (ii) the failure of winner to return any required documents by the deadline specified by Sponsor, including an Affidavit of Eligibility and Release as specified below;(iii) the return of the prize notification to Sponsor as undeliverable; (iv) the failure of the winner to claim the prize within the period described above; or (v) the determination by Sponsor that winner is ineligible or otherwise not in compliance with these official rules. In the event that a winner is disqualified for any reason, Sponsor may, in its sole discretion, award the prize to an alternate winner by random drawing from among all remaining eligible entries. Alternate winners must satisfy all eligibility and other requirements contained herein. Sponsor is the sole judging organization whose decisions as to the operation of the Sweepstakes and the selection of the winner are final and binding in all matters related to the Sweepstakes.
ODDS OF WINNING: Odds of winning depend on the number of eligible entries received.
PUBLICITY: Acceptance of the prize constitutes permission to Sponsor and its designees to use winner’s name, likeness and biographical information for purposes of advertising and trade without further compensation unless prohibited by law. Winner agrees to sign and return any document requested by Sponsor for such purpose. Upon request of Sponsor, Sweepstakes winner will sign and return an Affidavit of Eligibility and Release (except where prohibited) by June 30, 2017.
LIMITATIONS OF LIABILITY: By entering, entrant agrees to release and hold harmless Sponsor and Entities, and its subsidiaries, affiliates, advertising and promotion agencies, partners, representatives, agents, successors, assigns, employees, officers, and directors from any liability, illness, injury, death, loss, litigation, claim, or damage that may occur, directly or indirectly, whether caused by negligence or not, from: (i) such entrant’s participation in the Sweepstakes and/or his/her acceptance, possession, use, or misuse of any prize or any portion thereof; (ii) technical failures of any kind, including but not limited to the malfunction of any computer, cable, network, hardware, or software, or other mechanical equipment; (iii) the unavailability or inaccessibility of any transmissions, telephone, or Internet service; (iv) unauthorized human intervention in any part of the entry process or the Promotion; (v) electronic or human error in the administration of the Promotion or the processing of entriesIf, for any reason, the Sweepstakes is not capable of running as planned, including infection by computer virus, bugs, tampering, unauthorized intervention, fraud, technical failures, or any other causes beyond the control of Sponsor and Entities which corrupt or affect the administration, security, fairness, integrity or proper conduct of the Sweepstakes, Sponsor and Entities reserve the right in their sole discretion to cancel, terminate, modify or suspend the Sweepstakes. In such event, Sponsor shall, at its discretion, select the winner from all eligible non-suspect entries received prior to the event requiring such termination, cancellation or suspension. Sponsor reserves the right, in its sole discretion, to disqualify any individual found to be tampering with the entry process or the operation of the Sweepstakes; to be acting in violation of these rules; or to be acting in an unfair or disruptive manner or with intent to annoy, abuse, threaten or harass any other person.
DISCLAIMER OF WARRANTIES: SPONSOR AND ENTITIES MAKE NO WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, CONCERNING THE SWEEPSTAKES. ANY IMPLIED WARRANTIES THAT MAY BE IMPOSED BY APPLICABLE LAW ARE LIMITED IN ALL RESPECTS TO THE DURATION OF THE SWEEPSTAKES. IN NO EVENT WILL SPONSOR, ENTITIES, THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES OR ANYONE ELSE INVOLVED IN THE CREATION OR OPERATION OF THE SWEEPSTAKES BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DIRECT OR INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES. Some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. You may also have other rights, which may vary from state to state.
GOVERNING LAW: These official rules and the Sweepstakes shall be governed by and construed under the laws of the State of Florida without regard to conflicts of laws principles. The parties consent to the exclusive personal jurisdiction and venue of the state and federal courts located in Sarasota County, Florida with respect to all disputes related to this Sweepstakes.
WINNER LIST: For the names of the prize winners or a copy of these rules, write to CAE Healthcare, Inc., ATTN: Juno Sweepstakes., 6300 Edgelake Drive, Sarasota, FL 34240. Requests must be received no later than July 31, 2017.
FACEBOOK: This Sweepstakes is in no way sponsored, endorsed, administered by, or associated with Facebook.