STANLEY Healthcare Terms and Conditions
Effective Date June 22, 2022
1. Definitions. As used in these Standard Terms and Conditions and in any related Exhibits or Purchase Orders -
1.1. “Customer” means the person or entity issuing a Purchase Order, or on whose behalf a Purchase Order is issued.
1.2. “Customer Quote or Quote” means the document provided by Seller to Customer listing the Products and Services, with their related prices and any other information, about which the Customer has inquired. In the absence of a Master Agreement, a Customer Quote when combined with a Customer Purchase Order shall serve as the agreement between Seller and Customer (including these Standard Terms and Conditions) applicable to the sale of Products by Seller to Customer. Where there is no Master Agreement, “Customer Quote” shall be substituted for references to “Master Agreement” or “MA” in these Standard Terms and Conditions.
1.3. “Designated Use” means, subject to the terms, conditions, and licenses granted herein, (1) the right to install, load, utilize, store, and display the Software, solely for Customer’s internal business purposes; and (2) to use the specific Products and components stated on the applicable Purchase Order for which Customer has paid, subject to Customer remaining current as to any applicable license or subscription payments. For the avoidance of doubt, in no event shall Customer be permitted to translate, adapt, arrange, alter, reverse engineer, or reverse compile the object code or Software.
1.4. “Documentation” means the standard written materials associated with a Product and provided by Seller to Customer.
1.5. “Hardware” means the hardware products listed on Exhibit A to the Master Agreement or, if there is no Master Agreement, on the Quote as accepted by Customer.
1.6. “Intellectual Property Rights” means any patent, copyright, trade name, trademark, service mark, mask works, trade secret, know-how, or any other intellectual property right or proprietary right, whether registered or unregistered, and whether now known or hereafter recognized in any jurisdiction.
1.7. “Master Agreement” means the agreement between Seller and Customer that sets forth the specific terms and conditions applicable to the sale of Products by Seller to Customer.
1.8. “Products” means the Hardware, Software, and related components as may be specified on Purchase Orders from time to time.
1.9. “Resultant Data” means data and information related to Customer’s use of the Products or Services that is collected, developed or used by Seller in an aggregated and deidentified manner, including, without limitation, to compile statistical and performance information related to the provision and operation of the Products and Services.
1.10. “Seller” means the entity identified in the Master Agreement with the Customer.
1.11. “Software” means the software products in object code form listed on the Quote, and software embedded in Hardware and related Documentation.
1.12. “STC” means Standard Terms and Conditions.
2. Standard Terms and Conditions
These Standard Terms and Conditions apply to all transactions between Seller and Customer. They may not be modified by Customer except by the express written consent of Seller which written consent must state specifically that it is the intent of the Seller to modify these Standard Terms and Conditions. These Standard Terms and Conditions apply to, and are a part of, all Master Agreements and Customer Quotes. The Standard Terms and Conditions, together with the Master Agreement or a Customer Quote, are collectively the “Agreement.”
3. Purchase and Change Orders.
3.1. Purchase Orders. To purchase Products, Customer shall issue purchase orders to Seller specifying the Products, Services, quantity, applicable prices from the Customer Quote, and any other pertinent information, including but not limited to, place(s) for delivery of any Hardware, place(s) for installation of any Products, and any additional information that the circumstances may require (“Purchase Order”). In the event of a conflict between a Purchase Order and either the Master Agreement (“MA”) between Seller and Customer or the Customer Quote and STC or additional Product or Service specific terms and conditions, the MA or the Customer Quote and the STC and any additional Product or Service specific terms and conditions shall control. Seller is authorized to correct the inconsistent terms in a Purchase Order without notification to, or the consent of, the Customer and Seller shall not be required to obtain a corrected Purchase Order from the Customer.
3.2. Acceptance by Seller. Seller may accept a Purchase Order either by providing (i) written acceptance, or (ii) actual delivery of the Products. Seller shall process Purchase Orders promptly upon receipt. Seller will notify Customer if Seller rejects a Purchase Order.
3.3. Change Orders. Changes to Product quantities or types and/or modifications to the scope of work or project in any way once the Customer Quote and the MA are signed by Customer and which will cause the total purchase price to be adjusted shall be accomplished by written, authorized change order signed by Customer (a “Change Order”).
4. Delivery, Protection, and Return of Products
4.1. Timing. Seller shall use commercially reasonable efforts to fill promptly each accepted Purchase Order. Seller shall not be responsible for or incur any liability for damages, costs or expenses of any nature (whether general, consequential, liquidated, penalty, or otherwise) due to any delay in delivery.
4.2. Protection. Until all sums due to Seller are fully paid, Customer shall keep the Products free from all liens, taxes and encumbrances; shall not permit the Products to be removed from the premises without Seller’s written permission; shall not make any material change in the Products without Seller’s consent; and shall maintain the Products in good condition and repair, reasonable wear and tear thereof excepted. Customer assumes all risk of damage to or loss of the Products, regardless of whether insured.
4.3. Return of Product. ARIAL, FORESITE, ROAMALERT, and WANDERGUARD (including WANDERGUARD BLUE) Product may be returned at Customer’s expense to Seller for a full refund of the purchase price less delivery charges under the following conditions: (a) if ordered by Customer pursuant to a Customer Quote that is in excess of the quantity installed at the Facility if returned within 30 (thirty) days of installation completion date as specified on Seller’s trip report; or (b) within 30 (thirty) days of shipment if Customer cancels the Purchase Order and Product installation never commences. For both (a) and (b) above, Product must be in good condition. EXCEPTION: WRIST TAGS AND CUSTOM PRODUCTS ARE NOT RETURNABLE FOR REFUND. Failure to return Product in accordance with the above will result in a 25% restocking charge. Customer must notify Seller in advance of its intent to return Product and must obtain a return authorization number prior to shipment of Product to Seller. This return authorization number must be printed on all returned packages.
5. Shipping, Payment, and Invoicing.
(a) In the United States, HUGS WIFI, AEROSCOUT RTLS, and AEROSCOUT LINKS ship FOB Origin, with title and risk of loss passing to Customer upon delivery of the Products to the carrier. ARIAL, FORESITE, ROAMALERT, SPACETRAX, and WANDERGUARD (including WANDERGUARD BLUE) ship to Customer with risk of loss passing upon delivery of the Products to the customer and title passing upon either partial or total installation / project completion by Seller.
(b) Outside the United States, all Product ships FCA Seller’s facility (Incoterms 2010).
5.2. Standalone Payments.
(a) For HUGS WIFI, AEROSCOUT RTLS, and AEROSCOUT RTLS, Seller shall invoice Customer for all Products and Services to be performed by Seller upon shipment of the Products. Customer shall pay Seller within 30 (thirty) calendar days following receipt of the invoice.
(b) For ARIAL, FORESITE, ROAMALERT, SPACETRAX, and WANDERGUARD (including WANDERGUARD BLUE), Seller shall invoice Customer for all Products and Services upon either partial or total installation / project completion by Seller as indicated in the Quote. Seller reserves the right, depending on credit arrangements, to invoice Customer for 1/3 of the total purchase price upon execution of this Agreement. Customer shall pay Seller within 30 (thirty) calendar days following receipt of the invoice.
5.3. Subscription Payments. If Customer has purchased a Product that includes a subscription fee (i.e., AEROSCOUT LINKS, FORESITE, MOBILEVIEW and SPACETRAX), Customer shall pay the subscription fee in accordance with the terms of the MA. If there is no MA, Seller shall invoice Customer at least 30 (thirty) calendar days in advance of the first day of the upcoming subscription period. Customer shall pay the invoice in full prior to the first day of the upcoming subscription period. Seller may limit functionality, suspend or terminate Customer’s access to the Software if any payment is not paid when due. Seller may revise the subscription fee at Seller’s discretion and will notify Customer 30 (thirty) calendar days in advance of the first day of the upcoming subscription period.
5.4. Pricing Adjustments. Seller shall have the right to modify or increase any Product prices, subscription fee(s), and fees for Services by providing Customer with written notice at least 30 (thirty) days in advance of the effective date of such modification or increase (“Pricing Adjustment”).
5.5. Late Payments. Late payments are subject to a charge equal to 1.5% per month of the amount outstanding or the maximum allowed by law, whichever is less. Customer shall reimburse Seller for all costs and expenses (including attorney’s fees) in collecting any overdue amounts.
5.6. Taxes. Taxes, if applicable, shall be assessed at rates in effect at time of invoicing. To avoid the imposition of state sales and/or use taxes, Customer must supply Seller with a “Tax Exemption Certificate” or appropriate other exemption certificate prior to shipment, otherwise Customer shall remain responsible for any and all state sales and/or use taxes, and Customer shall pay such tax or expense directly to Seller.
5.7. U.S. Dollars. All payments shall be made in U.S. dollars unless specifically noted otherwise in the STANLEY Healthcare Quote.
5.8. No Deductions or Setoffs. All amounts payable to Seller (or to Seller’s certified reseller) under the Agreement shall be paid by Customer in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason or any deduction or withholding of tax as may be required by applicable law.
6. Customer’s Product-Related Obligations. Customer is responsible to provide, among other items as may be specified in the Agreement or Documentation:
6.1. Permanent and dedicated electrical power for the proper operation of the Products through Customer’s own electrical power system;
6.2. Uninterrupted access to the site during normal business hours or whenever Seller may reasonably require it for installation, maintenance, repair, training, or other similar services contemplated under this Agreement;
6.3. All necessary licenses, permits, or other authorizations required by state or Federal administrative agencies for the installation, use and operation of Products on the Customer’s premises;
6.4. Proper mounting foundations for the Products;
6.5. Satisfactory environmental conditions for the Products (e.g. temperature and humidity control) as may be specified by Seller; and
6.6. Labor and equipment necessary to establish and maintain connection of the Products to Customer’s telephone, computer, Internet or WIFI networks, as may be applicable.
7. Customer’s Control and Responsibility. Customer has and will retain sole responsibility for: (a) Customer data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any user in connection with the Services; (c) Customer’s information technology infrastructure, including hardware, software and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); and (d) the security and use of Customer’s and its users’ access credentials (if applicable).
8. Term and Termination.
8.1. Term. Unless a different Term is set forth in the MA, the Term shall be 3 (three) years and shall automatically renew for consecutive 1-year periods (each a “Renewal Term”) unless terminated in accordance with the STC; provided, Seller shall fulfill any Purchase Order that it has accepted prior to the effective date of the termination and the Customer shall pay for all of the Products and Services included in such Purchase Order, all in accordance with the terms of the MA and the STC.
8.2. Termination Without Cause. Seller may terminate this Agreement without cause upon 90 (ninety) days’ prior written notice to Customer.
8.3. Termination For Cause. Either party may terminate this Agreement immediately if the other party -
8.3.1. Failure to Cure. Fails to cure any material breach of this Agreement within 30 (thirty) calendar days after it has received notice of such material breach;
8.3.2. Ceases Operations. Ceases operation without a successor;
8.3.3. Bankruptcy, Financial Hardship, etc. Becomes insolvent, fails to pay its bills as due or makes an assignment for the benefit of its creditors, seeks protection under any bankruptcy, insolvency, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and is not dismissed within 60 (sixty) days.
8.4. Effect of Termination. Upon termination of this Agreement, any amounts owed to Seller hereunder will be immediately due and payable. Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, in equity, or otherwise.
8.5. Waiver of Liability. Upon any termination of this Agreement, Seller shall not be liable or obligated to Customer for any payments, future profits, exemplary, special or consequential damages, indemnifications or other compensation in connection with the termination. Customer hereby waives and relinquishes any rights, pursuant to law or otherwise, to any such payments, indemnifications, or compensation.
9. Software License.
9.1. License Grant. Conditioned on Customer’s compliance with the MA (if applicable) and STC, Seller grants to Customer a perpetual, worldwide, non-transferable, non-sublicensable, non exclusive license to use Software delivered in accordance with (i) the applicable Documentation, (ii) the Designated Use, and (iii) any other restrictions set forth in any applicable end user license agreement (“EULA”). Customer’s use of the Software shall be limited to the number of units for which Customer has paid.
9.2. Backup Copies. Customer may make up to two (2) copies of the Software for back-up and archival purposes only; provided, that Customer will reproduce any product identification, proprietary, trademark, copyright or other notices contained in the Software on all Software copies.
9.3. Restrictions. Customer will not (and will not instruct, authorize or allow any third party to):
9.3.1. Use or reproduce, modify, create derivative works, decompile, disassemble, or otherwise reverse engineer the Software or attempt to discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions), or incorporate the Software into or with other software;
9.3.2. Distribute, sell, sublicense, rent, lease, or use the Software (or any portion thereof) for time sharing, hosting, service provider or other computer services to third parties or otherwise make the functionality of the Software available to third parties;
9.3.3. Remove or in any manner alter any product identification, proprietary, trademark, copyright or other notices contained in the Software; or
9.3.4. Publicly disseminate performance information or analysis (including, without limitation, benchmarks and performance tests) from any source relating to the Software.
9.4. Notice of Violation. Customer shall promptly notify Seller in writing immediately upon becoming aware of any violation of this section.
10. Ownership of Intellectual Property.
10.1. Software and Hardware. Seller (and its licensors, as applicable) shall retain all Intellectual Property Rights (including, without limitation, all worldwide right, title and interest, related goodwill, and confidential and proprietary information) in and to i) the Products, Documentation, and Confidential Information; ii) any third party products included in the Products, Documentation, or Confidential Information or that Seller otherwise provided to the Customer (“Third Party Product”); and iii) any modifications and any derivative works
based on or including any part of the Products, Documentation and Confidential Information. Customer’s rights to the aforementioned items are limited to the rights expressly granted in this Agreement. No course of conduct or other construction or interpretation shall be construed to grant Customer any rights other than those expressly provided in this Agreement. Customer shall not use any Third Party Product separately or apart from the Software.
10.2. Resultant Data. Customer hereby unconditionally and irrevocably grants to Seller an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
11. Limited Warranties and Disclaimer.
11.1. Limited Software Warranty. For a period of 1 (one) year from the Customer’s receipt of the Software (the “Software Warranty Period”), the Software will operate when used as permitted under this Agreement and in accordance with the instructions in the Documentation. Seller does not warrant that the Software will meet Customer’s requirements, that the Software will operate in the combinations that the Customer may select for use, that Customer’s use of the Software will be uninterrupted or error-free, or that any security mechanisms implemented by the Software will not have inherent limitations. Seller and its licensors’ sole liability, and Customer’s exclusive remedy, for any breach of this warranty will be, in Seller’s sole discretion, to use commercially reasonable efforts to provide Customer with an error-correction or work-around which corrects the breach, or if in Seller’s sole opinion, the foregoing remedy is not feasible, accept return of the Software and refund or credit Customer for the Software subject to the warranty claim. Notwithstanding anything to the contrary herein, Seller will have no obligation with respect to a warranty claim unless notified of such claim in writing by Customer within the Software Warranty Period. Any error correction, work-around, or other remedy provided to Customer will not extend the original Software Warranty Period.
11.2. Exclusions. The Limited Software Warranty will not apply: (1) if the Software is used with hardware or software not specified in the Documentation; (2) if any modifications are made to the Software by Customer or any third party; (3) to any defects in the Software due to Customer’s accident, abuse, neglect, catastrophe, or improper use; (4) if reported errors or nonconformities cannot be reproduced by Seller (or its agent or subcontractor); (5) to Software provided on a no charge or evaluation basis.
11.3. Limited Hardware Warranty. Seller warrants that, commencing from the date of delivery to Customer and continuing for a period of 1 (one) year thereafter (the “Hardware Warranty Period”) (unless otherwise indicated in the Product Documentation or additional Product-specific terms and conditions), the Hardware will be free from manufacturing defects (“Hardware Warranty”). The Hardware Warranty extends only to the Customer. The exclusive remedy for breach of the Hardware Warranty is, in Seller’s sole discretion, repair or replacement of the Hardware or refund of the purchase price. Seller replacement parts may be new or refurbished. Seller’s obligations under this section are contingent on Customer following Seller’s then current notification and return policies. Under no circumstances shall Seller’s liability under this Hardware Warranty exceed the price paid by Customer to Seller for the Hardware. Repair or replacement of the Hardware under the Hardware Warranty does not extend the original Hardware Warranty Period.
11.4. Exclusions. The Limited Hardware Warranty will not apply if the Hardware: (1) has been altered, except by Seller or by Seller’s agent; (2) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Seller; (3) has been subjected to abnormal physical or electrical stress, misuse, negligence, accident, or catastrophe; or (4) is provided for beta evaluation, testing, or demonstration purposes for which Seller did not receive a payment of the full purchase price or does not receive a license fee.
11.5. Additional Warranty Exclusions. The Limited Software Warranty and the Limited Hardware Warranty shall not cover the following:
11.5.1. Batteries (other than D.O.A. – Dead on Arrival);
11.5.2. Plastics (including defects in appearance, cosmetics, decorative or structural items including framing and non-operative parts);
11.5.3. Tag Calibration;
11.5.4. Expenses related to configuring, operating, maintaining, removing or reinstalling the Products;
11.5.5. Defects or damage that results from the use of products, accessories, software or other peripheral equipment not certified by Seller for use with the Product;
11.5.6. Defects or damages resulting from service, testing, adjustment, installation, maintenance, alteration, or modification in any way by someone other than Seller or Seller’s agents.
11.6. WARRANTY DISCLAIMER. The warranties in the STC are LIMITED WARRANTIES AND SET FORTH THE ONLY WARRANTIES MADE BY SELLER. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS STC, ALL PRODUCTS AND SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS.” SELLER AND ITS SUPPLIERS DO NOT MAKE ANY OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY, LEGAL, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF QUALITY, MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER WARRANTIES ARISING OUT OF THE COURSE OF DEALING, USAGE OR TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SELLER OR ELSEWHERE, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS STC. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OR STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SOFTWARE WARRANTY PERIOD AND HARDWARE WARRANTY PERIOD, AS APPLICABLE. CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS AGREEMENT, AND THAT NO WARRANTIES OF ANY KIND WHATSOEVER HAVE BEEN MADE BY ANY OF SELLER’S SUPPLIERS.
12. Environmental Considerations. Customer acknowledges that environmental elements, such as interference, or Customer’s network or WIFI infrastructure may adversely impact Product performance (“Environmental Deficiencies”). If Customer experiences performance issues related to Environmental Deficiencies within 30 (thirty) days following the initial installation of the Products, Seller will assess the cause of the Environmental Deficiencies. The Parties shall mutually agree upon a commercially reasonable plan to remedy the Environmental Deficiencies. The Customer shall pay the cost of any such remedy.
13. Reimbursement of Costs. If the Customer has selected Installation Services and/or Training, Customer shall reimburse Seller for travel and expenses incurred during and reasonably related to its (or its agents’) performance of Installation Services and/or Training. Customer may cancel or postpone scheduled Installation Services or Training up to 10 (ten) business days prior to the scheduled Installation Service or Training (the “Cancellation Period”) by providing written notice to Seller. Customer shall remain responsible to pay Seller an amount equal to fifty-percent (50%) of the Installation Services or Training purchase price in the event Customer cancels or postpones scheduled Installation Services or Training after the Cancellation Period.
14. Limitation of Remedies and Damages. SELLER, ITS AGENTS, AND ITS LICENSORS SHALL NOT BE LIABLE TO CUSTOMER OR TO ANY THIRD-PARTY FOR ANY LOSS OF USE, COST OF CAPITAL, COST OF SUBSTITUTE EQUIPMENT, LOST DATA, FAILURE OF ANY SECURITY MECHANISMS, INTERRUPTION OF BUSINESS OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING PUNITIVE DAMAGES OR LOST PROFITS OR REPUTATIONAL DAMAGES), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), CIVIL LIABILITY, STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT WITH THE EXCEPTION OF SECTION 15.1, SELLER’S, ITS AGENTS’, AND ITS LICENSORS’ ENTIRE AGGREGATE LIABILITY TO CUSTOMER IN CONNECTION WITH OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, CIVIL LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID OR PAYABLE BY CUSTOMER TO SELLER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 144 SHALL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE AND AGREE THAT SELLER HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN, WHICH ALLOCATE THE RISK BETWEEN CUSTOMER AND SELLER AND FORM A BASIS OF THE BARGAIN BETWEEN THE PARTIES.
15.1. Seller shall defend the Customer against any third party suits, actions, claims or proceedings against Customer alleging that the Products, Software, and any other materials provided to Customer by Seller infringe or misappropriate such third party’s Intellectual Property Rights and Seller agrees to reimburse the Customer for any damages finally awarded against the Customer by a court of competent jurisdiction that may result from any such third-party claim.
15.2. Seller shall have no liability for any claim of infringement that arises from (i) modification, alteration or enhancement of the Products by the Customer or any third party unless such modification, alteration or enhancement was approved in writing by Seller; (ii) Seller’s compliance with Customer’s designs, specifications or instructions unless Seller agreed in writing to such designs, specification or instructions; or (iii) the combination or use of the Products with other materials or components not provided by Seller unless Seller approved such combination or use in writing.
15.3. The Customer shall promptly notify Seller in writing of any claim or demand for which Seller is responsible under this indemnity, and will cooperate with Seller to facilitate the defense
or settlement of such matter. If the use of the Products by the Customer or any of its Customers is enjoined, Seller will, at its option and using commercially reasonable efforts, either (i) obtain the right for the Customer to continue use of such Products, or (ii) replace such Products with other products of comparable form, fit, and function, or (iii) modify such Products so that they are no longer infringing, or (iv) refund the purchase price of such Products upon return of the Products if within one (1) year of delivery, or the net book value of the Products thereafter, or (v) any combination of (i) through (iv) above.
15.4. Limitation. Seller shall have no obligation under this Section or otherwise for any infringement suit or action based on (i) the use of a superseded or altered release of the Software, (ii) the combination, operation, or use of the Software with hardware, data, or other materials not furnished by Seller, (iii) use of the Software other than as permitted under this Agreement or the Documentation, (iv) modification to the Software made by a party other than Seller, (v) Seller’s compliance with any specifications or plans provided by Customer, or (vi) any other use or modification of Software that is out of compliance with the license, Documentation or the STC.
15.5. The foregoing Seller indemnity states the sole obligation and exclusive liability of Seller and the Customer’s sole recourse and remedy, for any claim of infringement or misappropriation of an Intellectual Property Right or proprietary right of the Products.
16.1. Seller shall defend, indemnify, and hold harmless the Customer, its officers, directors, and employees from and against all damages, claims or liabilities and expenses of any type whatsoever (including reasonable attorneys’ fees) arising out of or resulting from third party claims for personal injuries, including death or damage to property caused by any negligent or willful act of Seller. Customer shall notify Seller promptly in writing of any claim or demand for which Seller is responsible under this provision and shall cooperate with Seller to facilitate the defense or settlement of such matter.
16.2. Customer agrees to read and follow all operating instructions provided with the Products and to perform regular testing as specified in the operating instructions. The Customer shall defend, indemnify, and hold harmless Seller, its officers, directors, and employees from and against all damages, claims or liabilities and expenses of any type whatsoever (including reasonable attorneys’ fees) arising out of or resulting from personal injuries, including death or damage to property caused by any (a) failure to comply with all operating instructions, testing requirements, and warnings accompanying the Products; and (b) negligent or willful act of the Customer, including but not limited to misuse by Customer or by any of its employees or agents of any Product. Seller shall promptly notify the Customer in writing of any claim or demand for which the Customer is responsible under this section and shall cooperate with the Customer to facilitate the defense or settlement of such matter.
17. Seller’s Right to Proactive Correction. If Seller believes the Software has become or is likely to become subject to an infringement suit or action, Seller may (i) replace or modify the Software so that it becomes non-infringing; (ii) procure for Customer the right to continue using the Software under the terms of this Agreement; or (iii) accept return of the infringing Software and refund or credit Customer for the fees paid (less a reasonable amount for the period of time Customer has used the Software). The foregoing states Seller’s entire liability and Customer’s sole and exclusive remedy for infringement or misappropriation suits and actions of any kind.
18. Confidential Information. Confidential information one party (the “Disclosing Party”) provides to the other party (the “Receiving Party”) under this Agreement shall be governed as follows:
18.1. Scope of Confidential Information. Confidential Information consists of all non-public information disclosed pursuant to this Agreement, whether oral or in writing (including electronic transmission): (i) that is designated as “Confidential” or “Proprietary” by the Disclosing Party at the time of disclosure or within a reasonable period thereafter; (ii) that concerns the customers, finances, methods, research, processes, procedures, code, inventions, or know-how of the Disclosing Party; or (iii) that by the nature of the circumstances surrounding disclosure, or the information itself, should in good faith be treated as confidential (collectively, the “Confidential Information”). Confidential Information expressly includes the Software, Documentation, technical information and other code or data of any type provided by Seller or its agents, the pricing offered by Seller to Customer, and the terms and conditions of this Agreement.
18.2. Treatment of Confidential Information. A Receiving Party shall retain the Disclosing Party’s Confidential Information in strict confidence and shall not use such Confidential Information expect for purposes permitted under this Agreement. A Receiving Party shall be entitled to disclose Confidential Information on a need-to-know basis to its employees, agents and subcontractors, provided that such employees, agents and subcontractors are bound by non disclosure and confidentiality obligations no less protective than those set out in this Agreement. Each party shall use at least the same degree of care in safeguarding the other party’s Confidential Information as it uses in safe guarding its own, but shall not use less than reasonable care and diligence.
18.3. Exclusions. Obligations with respect to Confidential Information shall not apply to Confidential Information that the Receiving Party can demonstrate: (i) is or becomes a matter of public knowledge through no fault of the Receiving Party; (ii) was or becomes available to the Receiving Party on a non-confidential basis from a third party, provided that such third party is not bound by an obligation of confidentiality to the Disclosing Party with respect to such Confidential Information; (iii) was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information; or (iv) is required to be disclosed by law, provided that the Disclosing Party is promptly notified by the Receiving Party in order to provide the Disclosing Party an opportunity to seek a protective order or other relief.
19. Export Compliance. Customer acknowledges that the Software contains encryption technology that is subject to export restrictions by the United States government, and import restrictions by certain foreign governments. Customer shall not, and shall not allow any third party to remove or export from the United States or allow the export or re-export of any part of the Software or any component thereof: (i) into (or to a national resident of) Cuba, Iran, North Korea, Sudan, or Syria (to the extent the United States government or any agency thereof restricts export or re-export to such countries); (ii) to anyone on the United States Commerce Department’s Table of Denial Orders, or the United States Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the United States Government or any agency thereof requires an export license or other approval without first obtaining such license or approval.
20. Regulatory Compliance. To the extent that Seller receives, uses, obtains, access or creates “protected health information,” as that term is defined under the Health Insurance Portability and Accountability Act of 1996, as amended, from or on behalf of the Customer in the course of providing any Services, Seller shall abide by state and Federal law governing the confidentiality of that information.
21. Default. Failure of Customer to make payments or perform any other condition or obligation under this Agreement shall constitute a material breach. If Customer fails or neglects to comply with any terms or conditions or to make any payment when due or payable, Seller at its option and without notice to Customer may declare the whole amount unpaid immediately due and payable. At such time, if applicable, Seller may pursue the remedies of a secured party under Article 9 of the Uniform Commercial Code.
22.1. Audit Rights. Customer agrees to keep all usual and proper records and books of account and all usual and proper entries relating to Customer’s use of any Product. Upon Seller’s written request, Customer shall furnish Seller with its authorized signatory executed certification that the Products are being used pursuant to the terms of this Agreement, licenses, Documentation and all other terms. With prior reasonable notice, Seller may audit Customer’s use of the Software to ensure that Customer is in compliance with the terms of this Agreement, provided such audit is conducted during regular business hours. If an audit indicates unauthorized use of the Software, Seller may invoice Customer and Customer shall promptly pay all fees owed based on Seller’s standard price list(s) then in effect. Customer is responsible for the costs of the audit and associated with any recoupment or collection in the event the audit reveals underpayment of five percent (5%) or more in the Software license fees and/or in the Software Support and Maintenance fees, if applicable.
22.2. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, agency or otherwise created under this Agreement. Neither party has, and neither party will represent to any third-party that it has the power to bind the other or incur obligations on the other’s behalf without the other party’s prior written consent.
22.3. Force Majeure. Neither party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached the MA or the STC for any failure or delay in fulfilling or performing any obligation (except with respect to the payment of fees), when and to the extent such failure or delay is caused by circumstances beyond such party’s reasonable control, including without limitation acts of God, flood, fire, terrorism, invasion, strikes (except with respect to a party’s own labor force), shortages, lockouts, riots, civil unrest, acts of war, earthquake, fire, explosions, natural disasters, refusal of license by any governmental agency, or power or connectivity interruptions.
22.4. Remedies. Except as expressly stated herein, no remedy conferred by any of the provisions of the STC is intended to be exclusive of any other remedy, and each remedy is cumulative and in addition to every other remedy available to a party hereunder or otherwise at existing law, equity, by statute or otherwise. The election of any one or more remedies by either party shall not constitute a waiver of the right to pursue any other available remedies. Customer acknowledges that any actual or threatened breach of Sections 19 and 20 will constitute immediate, irreparable harm to Seller for which monetary damages alone would be an inadequate remedy and that equitable or injunctive relief is an appropriate remedy in addition to any other remedies that may be available to Seller.
22.5. Assignment and Subcontracting. Seller may subcontract or assign its rights and delegate its obligations under the MA or under the STC, in whole or in part, without Customer’s prior consent. Customer may not assign or delegate the MA or the STC without Seller’s prior written consent (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, Customer may, without Seller’s prior written consent assign its rights under the MA or the STC to a successor, parent, subsidiary or affiliate; provided that (1) such entity is not a competitor of Seller, and (2) Customer provides notice to Seller of its intent to assign at least seven (7) days prior to such intended assignment.
22.6. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will remain enforceable and in full force and effect.
22.7. No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns. Nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever.
22.9. Headings. Section headings used in this agreement are for convenience and not to be used in interpreting this Agreement.
22.10. Notice. Delivery of any notice by a party shall be legally valid and effective through: (i) delivering the document through personal delivery; (ii) delivering the document through commercial delivery with delivery confirmation (e.g. FedEx, UPS, USPS); (iii) transmitting the document by facsimile transmission, electronic mail in “portable document format” (i.e., “.pdf”), or other electronically scanned format; or (iv) delivering the document by electronic means with delivery confirmation (e.g., DocuSign®).
Notice Address for STANLEY:
75 Portsmouth Blvd, Suite 220
Portsmouth, NH 03801
Attn: Legal Department
with a copy to:
75 Portsmouth Blvd, Suite 220
Portsmouth, NH 03801
Attn: Corporate Counsel
23. Survival. Sections 10 (Software License), 10 (Ownership; Intellectual Property), 11 (Limited Warranties and Disclaimer), 1414 (Limitation of Remedies and Damages), 18 (Confidential Information), and 19 (Export Compliance) will survive any termination of this Agreement.