The terms and conditions detailed herein (“Agreement”) apply to your (“Customer”) purchase from Measuresoft of Datascan hardware (“Hardware”), licenses to use MEASURESOFT software (“Software”), and Non-MEASURESOFT Branded Products (collectively the “Product(s)”), as well as MEASURESOFT hardware and software services and support (“Services”). THIS AGREEMENT SHALL APPLY UNLESS CUSTOMER AND MEASURESOFT HAVE ENTERED INTO A SEPARATE SIGNED AGREEMENT APPLICABLE TO THE PURCHASE OF THE PRODUCTS OR SERVICES. By placing an order with MEASURESOFT, Customer agrees to be bound by the terms of this Agreement. MEASURESOFT EXPRESSLY OBJECTS TO AND REJECTS ANY TERMS AND CONDITIONS IN CUSTOMER’S PURCHASE ORDER OR OTHER SIMILAR DOCUMENT. IF YOU DO NOT AGREE WITH THESE TERMS, PROMPTLY NOTIFY MEASURESOFT AND RETURN THE PRODUCT UNUSED IN ITS ORIGINAL PACKAGING TO MEASURESOFT.
1. PRICES AND ORDERS. Prices are set forth in the quotation issued to Customer (“Quote”). All Quotes expire thirty (30) days from date of issuance, unless otherwise stated in the Quote. All orders are subject to acceptance at the sole discretion of MEASURESOFT. Orders will be considered accepted once MEASURESOFT books an order and sends Customer a sales order acknowledgement. MEASURESOFT shall not be bound by changes to an order unless agreed by MEASURESOFT in writing. MEASURESOFT reserves the right to cancel any order if any information provided by Customer to MEASURESOFT is inaccurate.
2. PAYMENT AND INVOICING. Payment is due at the time the order is placed. If Customer is approved for credit, payment shall be due within thirty (30) days from the date of invoice (“Invoice Date”). Payment shall be in the currency listed on the MEASURESOFT invoice. All sums not paid when due shall accrue interest daily at a monthly rate of the lesser of 1.5% or the highest rate permissible by law. If there are multiple units in an order, each unit will be invoiced when shipped.
3. DELIVERY, TITLE and RISK OF LOSS. Title and risk of loss to Products (for Software, the media) shall pass to Customer upon shipment from MEASURESOFT, its warehouses, or its affiliated companies; provided however, MEASURESOFT retains a security interest and right of possession in the Products until Customer makes payment in full. For orders to be delivered within the same country as the MEASURESOFT entity accepting the order, MEASURESOFT will arrange the shipping; however, Customer is responsible for all shipping and handling fees set forth in the invoice. If Customer chooses to arrange for shipping or if the order is placed with an MEASURESOFT entity outside the country of the applicable shipping destination, Customer is responsible for all shipping and handling, including fees, customs, formalities and clearance. Shipment dates provided by MEASURESOFT are estimates only, and MEASURESOFT shall have no liability for losses or claims resulting from late delivery of Products. Claims for shipment shortage shall be deemed waived unless presented to MEASURESOFT in writing within forty-five (45) days of Invoice Date.
4. TAXES. Prices exclude, and Customer is responsible for, any sales, use, service, value added, and like taxes (“Taxes”) arising from the purchase of the Products and Services. If Customer is exempt from any Taxes, it must provide MEASURESOFT with the appropriate tax exemption documentation at the time the order is placed.
5. SOFTWARE. Software is licensed pursuant to the software license agreements provided with the software. All software is licensed, not sold, and title to the software remains with the applicable licensor(s).
6. RETURN POLICY. Customer may return standard Products within thirty (30) days of the Invoice Date. MEASURESOFT reserves the right to charge Customer a fifteen percent (25%) restocking fee for any Products returned to MEASURESOFT. No returns will be accepted after the thirty (30) day period has expired. A Return Material Authorization (RMA) number is required for Customer to return any Products. Acceptance of returns of customized Products and Non-MEASURESOFT Branded Products is in the sole discretion of MEASURESOFT.
7. Limited Warranty. MEASURESOFT hardware Products are warranted against defects in materials and workmanship for one year from the date MEASURESOFT ships the Products to Customer (“Delivery Date”). Any products found to be defective in material or workmanship will be repaired, replaced with same or similar device, or refunded at MEASURESOFT’s sole discretion. All software Products are licensed to Customer under the terms of the appropriate Measurement Computing license. For a period of ninety (90) days from the Delivery Date, MEASURESOFT software Products (when properly installed with MEASURESOFT hardware Products) (a) will perform substantially in accordance with the accompanying written materials, and (b) the medium on which the software product is recorded will be free from defects in materials and workmanship under normal use and service. Customer must obtain a Return Material Authorization number from MEASURESOFT before returning any Products under warranty to MEASURESOFT. Customer shall pay expenses for shipment of repaired or replacement Products to and from MEASURESOFT. After examining and testing a returned product, if MEASURESOFT concludes that a returned product is not defective, Customer will be notified, the product returned at Customer’s expense, and a charge made for examination and testing. This Limited Warranty is void if failure of the Products has resulted from accident, abuse, misapplication, improper calibration by Customer, Customer supplied third party software not intended for use with the applicable MEASURESOFT software, utilization of an improper hardware or software key or unauthorized maintenance or repair. MEASURESOFT’s sole obligation (and Customer’s sole remedy) with respect to the foregoing Limited Warranty shall be to, at its option, return the fees paid or repair/replace any defective Products, provided that MEASURESOFT receives written notice of such defects during the applicable warranty period. Customer may not bring an action to enforce its remedies under the foregoing Limited Warranty more than one (1) year after the accrual of such cause of action. THE REMEDIES SET FORTH ABOVE ARE EXCLUSIVE AND THE CUSTOMER’S SOLE REMEDIES, AND SHALL APPLY EVEN IF SUCH REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
8. NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PRODUCTS AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND MEASURESOFT DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE PRODUCTS OR SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. MEASURESOFT DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULTS OF THE USE OF THE PRODUCTS OR SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. MEASURESOFT DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE.
9. WARNING AND CUSTOMER INDEMNITY. CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT PRODUCTS AND SERVICES ARE NOT DESIGNED, MANUFACTURED, OR TESTED FOR USE IN LIFE OR SAFETY CRITICAL SYSTEMS, HAZARDOUS ENVIRONMENTS OR ANY OTHER ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING IN THE OPERATION OF NUCLEAR FACILITIES; AIRCRAFT NAVIGATION; AIR TRAFFIC CONTROL SYSTEMS; LIFE SAVING OR LIFE SUSTAINING SYSTEMS OR SUCH OTHER MEDICAL DEVICES; OR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE PRODUCT OR SERVICE COULD LEAD TO DEATH, PERSONAL INJURY, SEVERE PROPERTY DAMAGE OR ENVIRONMENTAL HARM (COLLECTIVELY, “HIGH-RISK USES”). FURTHER, CUSTOMER MUST TAKE PRUDENT STEPS TO PROTECT AGAINST PRODUCT AND SERVICE FAILURES, INCLUDING PROVIDING BACK-UP AND SHUT-DOWN MECHANISMS. MEASURESOFT EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS OF THE PRODUCTS OR SERVICES FOR HIGH-RISK USES. CUSTOMER SHALL DEFEND, INDEMNIFY, AND HOLD MEASURESOFT HARMLESS FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, INCLUDING, LAWSUITS, ARBITRATIONS, AND/OR ADMINISTRATIVE ACTIONS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING OUT OF CUSTOMER’S USE OF THE PRODUCTS AND SERVICES FOR ANY HIGH-RISK USES, INCLUDING CLAIMS FOR PRODUCT LIABILITY, PERSONAL INJURY (INCLUDING DEATH) OR DAMAGE TO PROPERTY, REGARDLESS OF WHETHER SUCH CLAIMS ARE FOUNDED IN WHOLE OR IN PART UPON ALLEGED OR ACTUAL NEGLIGENCE OF MEASURESOFT.
10. SYSTEM AND APPLICATION RESPONSIBILITY AND ADDITIONAL INDEMNITY. CUSTOMER ACKNOWLEDGES THAT IT IS ULTIMATELY RESPONSIBLE FOR VERIFYING AND VALIDATING THE SUITABILITY AND RELIABILITY OF THE PRODUCTS OR SERVICES WHENEVER THE PRODUCTS OR SERVICES ARE INCORPORATED IN ITS SYSTEM OR APPLICATION, INCLUDING THE APPROPRIATE DESIGN, PROCESS, AND SAFETY LEVEL OF SUCH SYSTEM OR APPLICATION. FURTHER, CUSTOMER MUST TAKE PRUDENT STEPS TO PROTECT AGAINST PRODUCT AND SERVICE FAILURES WHEN PRODUCTS AND SERVICES ARE INCORPORATED IN A SYSTEM OR APPLICATION, INCLUDING PROVIDING BACK-UP AND SHUT-DOWN MECHANISMS. CUSTOMER SHALL DEFEND, INDEMNIFY, AND HOLD MEASURESOFT HARMLESS FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, INCLUDING LAWSUITS, ARBITRATIONS, AND/OR ADMINISTRATIVE ACTIONS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING OUT OF CUSTOMER’S INCORPORATION OF THE PRODUCTS OR SERVICES INTO ITS SYSTEM OR APPLICATION, REGARDLESS OF WHETHER SUCH CLAIMS ARE FOUNDED IN WHOLE OR IN PART UPON ALLEGED OR ACTUAL NEGLIGENCE OF MEASURESOFT.
11. INTELLECTUAL PROPERTY LIABILITY. MEASURESOFT agrees to defend any third-party claim that alleges the Hardware, Software or Services infringe any U.S. patent, copyright, or trademark (“Claim”). Customer shall notify MEASURESOFT immediately upon learning of any Claim, or any allegation that the grounds for a Claim may exist, shall grant MEASURESOFT sole control over the defense and settlement of the Claim, and shall cooperate fully with MEASURESOFT in preparing a defense for any Claim. MEASURESOFT agrees to pay any final judgment or settlement resulting from any Claim, provided that the settlement is entered into in accordance with this Section. MEASURESOFT shall not be liable for a settlement made without its prior written consent. Notwithstanding the foregoing, MEASURESOFT shall have no obligation under this Section for any claim relating to or arising from (a) Customer’s modifications of Hardware, Software or Services; (b) failure to use Hardware, Software or Services in accordance with the applicable documentation provided by MEASURESOFT; (c) the combination, operation, or use of Hardware, Software or Services with any hardware, software or service not provided by MEASURESOFT; (d) the compliance of MEASURESOFT with Customer’s specifications or directions, including the incorporation of any software or other materials provided by or requested by Customer; or (e) Non-MEASURESOFT Branded Products.
The foregoing states the Customer’s sole remedy for, and the entire liability and responsibility of MEASURESOFT for, infringement of any patent, trademark, or copyright or other intellectual property rights. THIS LIMITED INDEMNITY IS IN LIEU OF ANY OTHER STATUTORY OR IMPLIED WARRANTY AGAINST INFRINGEMENT.
In any event, if MEASURESOFT believes in its reasonable opinion the Hardware, Software, or Services may be alleged to be infringing, for the purposes of mitigating any potential damages, MEASURESOFT may, at its option, (i) procure for the Customer the right to continue to use the Hardware, Software, or Services; (ii) replace them with comparable Hardware, Software or Services that are free of such infringement; or (iii) refund the fees paid by Customer, in which case Customer shall promptly return the Hardware to MEASURESOFT and/or terminate the use of the Software or Services.
12. PROPRIETARY RIGHTS. MEASURESOFT reserves all right, title, and interest in any intellectual property rights contained or embodied in Products, or resulting from the Services, including any custom developments created or provided by MEASURESOFT under this Agreement. Nothing in this Agreement will be deemed to grant to Customer any ownership rights in such intellectual property.
13. LIMITATION OF LIABILITY. MEASURESOFT SHALL NOT BE LIABLE FOR (I) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS OR SERVICES; OR (II) ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH: (A) PRODUCTS OR SERVICES NOT BEING AVAILABLE FOR USE, INCLUDING ANY COSTS OF OBTAINING SUBSTITUTE PRODUCTS OR SERVICES; (B) LOSS OF, CORRUPTION OF, OR LOSS OF USE OF ANY PRODUCTS, HARDWARE, SOFTWARE OR DATA; (C) LOSS OF REVENUE, PROFIT, OR BUSINESS OPPORTUNITY; (D) BUSINESS INTERRUPTION OR DOWNTIME; OR (E) INABILITY TO ACHIEVE A PARTICULAR RESULT, EVEN IF IT IS AT SUGGESTION MADE BY MEASURESOFT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF MEASURESOFT ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS OR SERVICES, SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER FOR THE SPECIFIC PRODUCT OR SERVICE GIVING RISE TO SUCH CLAIM. THIS SECTION: (1) APPLIES TO MEASURESOFT AND ITS LICENSORS, DISTRIBUTORS, AND SUPPLIERS (INCLUDING ITS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS), (2) REFLECTS AN ALLOCATION OF RISK BETWEEN MEASURESOFT AND CUSTOMER IN VIEW OF THE PURCHASE PRICE OF THE PRODUCTS AND SERVICES, (3) APPLIES EVEN IF MEASURESOFT HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES AND REGARDLESS OF WHETHER SUCH CLAIMS ARE FOUNDED IN WHOLE OR IN PART UPON ALLEGED OR ACTUAL NEGLIGENCE OF MEASURESOFT, AND (4) REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE. TO THE EXTENT THE FOREGOING LIMITATION OF LIABILITY IS UNENFORCEABLE OR FAILS OF ITS ESSENTIAL PURPOSE, THE SOLE LIABILITY OF MEASURESOFT TO CUSTOMER SHALL BE LIMITED TO $50,000 (USD).
14. FORCE MAJEURE. MEASURESOFT shall not be responsible for any delay or failure to perform due to any cause beyond its reasonable control, including but not limited to acts of nature or governments; interruptions of telecommunications, power or transportation; failure of contractors or suppliers; or inability to obtain necessary labor or materials (“Force Majeure Event”). In the event of a Force Majeure Event, MEASURESOFT reserves the right to cancel the applicable order without any liability to Customer.
15. GOVERNING LAW. This Agreement shall be governed by the laws of the Ireland., without regard to principles of conflicts of laws. The parties submit to the personal jurisdiction of the courts in Ireland. The parties expressly agree that the provisions of the United Nations Convention on Contracts for the International Sale of Products will not apply to this Agreement.
16. LIMITATION PERIOD. MEASURESOFT SHALL NOT BE LIABLE FOR ANY CLAIM ARISING UNDER THIS AGREEMENT BROUGHT MORE THAN TWO YEARS AFTER THE CAUSE OF ACTION FOR SUCH CLAIM FIRST AROSE.
17. UPDATES. MEASURESOFT reserves the right to update this Agreement at any time; however, the terms and conditions in effect at the time of purchase shall apply to that purchase of Products or Services.
18. GENERAL TERMS. This Agreement, and any terms incorporated herein by reference, constitutes the entire Agreement between the parties with respect to the subject matter hereof and supersedes all prior understandings or agreements, whether written or oral, with respect to that subject matter. Customer acknowledges reading this Agreement, understands these terms, and agrees to be bound by them. This Agreement may not be altered, supplemented, or amended by the use of any other document unless otherwise agreed in writing by MEASURESOFT. No delay or failure by MEASURESOFT to exercise any right it has under this Agreement shall impair or be construed as a waiver of such right. A waiver of any provision of this Agreement must be in writing and shall not be construed as a waiver or modification of any other term hereof, or as a continuing waiver of any provision. The term ‘including’ as used in the Agreement should be construed as ‘including without limitation’. If any part, term, or provision of this Agreement is held illegal, unenforceable, or in conflict with any applicable and enforceable law, the validity of the remaining portions or provisions of this Agreement shall not be affected. The doctrine that any ambiguity contained in a contract shall be construed against the party whose counsel has drafted the contract is expressly waived by each of the parties with respect to this Agreement.