1.1 Definitions. In this Agreement the following words and expressions shall have the following meanings:
(a) “Adaptiiv” means Adaptiiv Medical Technologies Inc.
(b) “Agreement” means these terms and conditions and the Order Form.
(c) “Authorized Users” means Personnel of the Customer who are informed of the provisions of this Agreement prior to using the System.
(d) “Customer” means the customer identified on the Order Form.
(e) “Documentation” means any documentation in any form, including any reports, records, written designs, specifications, requirements, user manuals, user guides, operations manuals, training materials, instructions, blueprints, invention disclosures, patterns, flow charts, equipment part lists, drawings or plans, and in connection with software implies that such documentation is sufficient in all respects and reasonably required in order (i) for a computer systems technician of average skill and intelligence to install software, (ii) for a computer systems technician of average skill and intelligence to train users of software to use the same in accordance with its documentation, and (iii) for a user of the software to understand its functions and features and to be able to properly use it in its typical operating environment.
(f) “Intellectual Property Rights” means (i) any and all proprietary rights anywhere in the world provided under patent law, copyright law (including moral rights), trade-mark law, design patent or industrial design law, semi-conductor chip or mask work or integrated circuit topography law, or any other applicable law, including trade secret law, which may provide a right in either hardware, software, content, Documentation, Confidential Information, trade-marks, ideas, formulae, algorithms, concepts, inventions, processes or know-how generally, or the expression or use of such hardware, software, content, Documentation, Confidential Information, trade-marks, ideas, formulae, algorithms, concepts, inventions, processes or know-how; (ii) any and all applications, registrations, licenses, sub-licenses, franchises, agreements or any other evidence of a right in any of the foregoing; and all licenses and waivers and benefits of waivers of the intellectual property rights set out in (i) and (ii) above, all future income and proceeds from the intellectual property rights set out in (i) and (ii) above, and all rights to damages and profits by reason of the infringement or violation of any of the intellectual property rights set out in (i) and (ii) above.
(g) “Order Form” means the order form executed by the Parties.
(h) “Parties” means Adaptiiv and Customer and “Party” means either one of them.
(i) “Personnel” includes directors, officers, employees, agents, consultants, representatives, and other individuals employed, engaged, or retained by a Party.
(j) “Printer” means a 3D printer chosen and sourced by Adaptiiv, in its sole discretion, with specifications that are appropriate for the designed use of the System.
(k) “Software” means all executable code, source code, source listings, object code and all software documentation (regardless of the media, form or characteristics related to computer software) related to the System, specifically the Adaptiiv Software Application, and including all Software Upgrades.
(l) “Software Upgrades” means any updates, upgrades or new releases to the Software developed by Adaptiiv (other than System Services provided under this Agreement) that require an update to the System for any purpose whatsoever.
(m) “System Services” means those services related to the System provided by Adaptiiv to Customer.
(n) “System” means the Printer and the Software.
1.2 Extended Meanings. In this Agreement, words importing the singular number include the plural and vice versa, words importing any gender include all genders, and words importing persons include all legal entities.
1.3 Structure of Agreement.
(a) The division of this Agreement into Articles, Sections, and Subsections are for convenience of reference only and shall not affect or be considered to affect the construction or interpretation of the provisions of this Agreement.
(b) The headings of Articles, Sections, and Subsections in this Agreement are inserted for convenience of reference only and shall not affect or be considered to affect the construction or interpretation of the provisions of this Agreement.
(c) The word “including” when used in this Agreement means “including, without limitation”.
1.4 Purchase Orders. Notwithstanding any contrary language in any purchase order, quote, or similar document issued by Customer to Adaptiiv with respect to the System Services, any such purchase order, quote, or similar documents shall be deemed for Customer’s internal use only and the provisions of such a document shall have no effect on the provisions or interpretation of this Agreement.
2.1 Reciprocal Representations. Each Party represents, warrants, and covenants to and with the other Party, with the intent that such other Party shall rely thereon in entering into this Agreement, the following: (a) it is duly formed, validly existing, and in good standing under the laws of the jurisdiction of its formation; (b) it has the power and capacity and good and sufficient right and authority to enter into this Agreement on the terms and conditions set out in this Agreement, and has, and agrees to maintain during the term of this Agreement, the power, and authority to fulfill and perform its obligations and to carry out the terms of this Agreement; and (c) this Agreement constitutes a valid and binding obligation of it enforceable against it in accordance with its terms, and it is not a party to, bound or affected by or otherwise subject to any applicable law that would be violated, contravened or breached by, or under which default would occur, as a result of the execution of this Agreement or the compliance with and performance of any provision of this Agreement.
3.1 Term. The term of this Agreement shall commence on the Effective Date and shall terminate on the End Date specified in the Order Form (the “Term”), unless terminated earlier in accordance with the terms and conditions set forth in this Agreement.
3.2 Termination by Adaptiiv. Adaptiiv may, by written notice to Customer, immediately terminate this Agreement and the provision of the System and any System Services and training to Customer if: (a) Customer fails to fulfill any of its obligations under this Agreement within ten (10) days of Adaptiiv providing notice of such failure to Customer; (b) Customer becomes insolvent, makes an assignment for the benefit of its creditors, has a liquidator, receiver, or receiver-manager, or bankruptcy trustee appointed for it, or becomes subject as a debtor to the provisions of a creditor arrangement, winding-up, bankruptcy or insolvency laws; (c) Customer transfers, assigns, or sub-licenses any part of its interest in this Agreement, or attempts to do so, without Adaptiiv’s express written consent; or (d) Customer resells or distributes, or attempts to resell or redistribute, any part of the System without Adaptiiv’s express written consent. If Adaptiiv terminates this Agreement for reasons set forth in this Section, then all payments under this Agreement not yet paid to Adaptiiv by Customer for the balance of the Term, if any, become immediately due and payable by Customer to Adaptiiv as liquidated damages, and not as a penalty.
3.3 Termination by Customer. Customer may, by written notice to Adaptiiv, immediately terminate this Agreement if: (a) Adaptiiv becomes insolvent, makes an assignment for the benefit of its creditors, has a liquidator, receiver, receiver-manager, or bankruptcy trustee appointed for it or becomes subject as a debtor to the provisions of a creditor arrangement, winding-up, bankruptcy or insolvency laws; or (b) Adaptiiv fails to fulfill any of its obligations under this Agreement within thirty (30) days of Customer providing notice of such failure to Adaptiiv.
4.1 Purchase Price. Customer shall pay the price, as set out in the Order Form (“Purchase Price”), to Adaptiiv upon execution of this Agreement.
4.2 Additional Payments. Except as provided in Section 4.1, Customer shall make payments due to Adaptiiv under this Agreement to Adaptiiv within thirty (30) days after Customer’s receipt of invoices from Adaptiiv.
4.3 Taxes. The Purchase Price and any amounts payable by Customer under this Agreement is exclusive of any taxes. Customer shall be responsible for, and shall hold harmless and indemnify Adaptiiv against, the payment of all ad valorum tax, sales tax, goods and services tax, and any other taxes of a similar nature applicable to or arising from the price, value, purchase, sale, or the provision or use of the System, regardless of the period or entity actually taxed. Customer shall be responsible for, and shall hold harmless and indemnify Adaptiiv against, the payment of any taxes imposed by any taxing authority arising from the price, value, purchase, sale, or the provision or use of the System, regardless of the period or entity actually taxed. All amounts payable to Adaptiiv by Customer pursuant to this Agreement shall be paid by Customer to, and received by, Adaptiiv free and clear of any set off or withholding or similar tax.
4.4 Interest. Customer shall pay Adaptiiv interest on all amounts not paid by Customer to Adaptiiv when due at the simple interest rate of 2% per month (24% per annum), before and after judgment. This obligation of Customer to pay, or the payment of, interest on amounts not paid by Customer to Adaptiiv when due shall not estop, preclude, or prejudice the right of Adaptiiv to the immediate payment of amounts due to Adaptiiv from Customer.
5.1 Installation. On a date mutually agreeable by the Parties, Adaptiiv shall install the System at the Customer’s site and Customer shall pay all of Adaptiiv’s reasonable travel expenses associated with such installation.
5.2 Training. If the Order Form so indicates, Adaptiiv may provide training to Customer with respect to the System for Adaptiiv’s standard fees.
5.3 System Services. If the Order Form so indicates, Adaptiiv may provide System Services to Customer throughout the Term for Adaptiiv’s standard fees in accordance with this Agreement. Subject to any express provision to the contrary in this Agreement, Adaptiiv does not guarantee error-free or uninterrupted provision of the System Services.
5.4 Software Upgrades. Adaptiiv shall provide Software Upgrades to the Software on an as-needed basis throughout the Term at no additional charge to Customer, provided that any and all payments due to Adaptiiv by Customer pursuant to this Agreement have been made.
6.1 Customer’s Equipment and Obligations. Customer shall: (a) provide all necessary infrastructure required for the safe and efficient operation and maintenance of the System on Customer’s property or premises; (b) provide personnel who will act as the interface between Customer and Adaptiiv for the purposes of this Agreement; (c) if training is requested by Customer, provide qualified personnel to be trained by Adaptiiv’s representatives on how to properly and effectively use the System; (d) not re-arrange, re-configure, disconnect, remove or otherwise modify, alter, or tamper with the System or Software without prior notice and agreement of Adaptiiv; (e) use interconnection equipment compatible with the equipment of Adaptiiv, unless such interconnection equipment is provided by Adaptiiv; (f) secure and maintain for Adaptiiv all work permits that may now or in the future be required for Adaptiiv personnel to provide the System, System Services, and/or training to Customer; (g) not use the name of Adaptiiv for any marketing or other purposes whatsoever without the prior written approval of Adaptiiv; (h) not use the trademarks, service marks, trade names, tag lines, slogans, and/or any other Intellectual Property Rights of Adaptiiv for any purpose whatsoever without the prior written approval of Adaptiiv, except in accordance with the express terms of this Agreement; and (i) comply with all applicable laws that relate to the System and the System Services.
6.2 Access. Customer is responsible for: (a) providing Adaptiiv and its Personnel with prompt and safe access to Customer’s property and premises as required to install the System, to provide System Services, and/or to provide training hereunder; and (b) obtaining and maintaining all real or personal property rights that Adaptiiv needs in order to access or connect to Customer’s facilities or network to install, operate, or otherwise deal with the System or to provide System Services or training.
7.1 Force Majeure. Neither Party, nor its Personnel, shall be liable for failure to perform, or delay in performance, due to anything beyond the reasonable control of either Party, including any fire, flood, natural disaster or other act of God; strike, lockout, or other labour difficulty; the act of any governmental authority; the failure of any infrastructure of a third party upon which the Party is reliant to perform its obligations under this Agreement; fuel or energy shortage; unavailability of materials or equipment; or delays in transportation (collectively and separately, the “Force Majeure”). In no event shall failure or inability to pay, generally, constitute Force Majeure. In the event of delay in performance due to Force Majeure, the date for delivery or time for completion (but not a date for payment) will be extended by a period of time reasonably necessary to overcome the effect of such delay.
7.2 Liability Respecting the System. Adaptiiv shall not be responsible or liable to Customer, or to anyone claiming by, through or under Customer, or to any third party, for any loss, cost (including lawyer fees and court costs), damage, injury, liability, claim, penalty, fine, interest or cause of action resulting from the interruption or quality of Adaptiiv providing the System or System Services to Customer that results from the negligence of Adaptiiv or its Personnel. Notwithstanding the foregoing, Adaptiiv shall be liable to Customer for claims arising from the interruption or loss of use of the System that result from the gross negligence or wilful misconduct of Adaptiiv, to the extent only of: (a) the correction of errors of which Adaptiiv has received written notice and proof from Customer within thirty (30) days of occurrence; or (b) where such correction is not practicable, Customer shall be entitled only to an equitable credit as the Customer’s exclusive remedy, and the credit shall not exceed the charges invoiced to Customer for that portion of the System Services that produced the erroneous result.
7.3 General Liability. Adaptiiv shall not be liable for any damages that result in damage to tangible property, bodily damage/personal injury, or death, other than as the result of gross negligence or wilful misconduct of Adaptiiv. In no event shall Adaptiiv be liable for: (a) any indirect, special, incidental, consequential, punitive, or exemplary damages; (b) damages for loss of profit or revenues, business interruption loss, loss of contract, goodwill, or other business or economic loss, even if Adaptiiv has been advised of or could foresee the possibility of loss; or (c) any liability in relation to this Agreement and/or the System in excess of the total Purchase Price paid by Customer to Adaptiiv.
7.4 Indemnity. Customer shall indemnify and hold harmless Adaptiiv and its Personnel against any and all loss, cost (including lawyer fees and court costs), damage, injury, liability, claim, penalty, fine, interest or cause of action resulting from the breach of this Agreement by Customer or from any act or omission by Customer or its Personnel.
7.5 Limited Warranty. Adaptiiv represents and warrants that it has sufficient rights to provide the System to Customer and that, to the actual knowledge of Adaptiiv, the licensing of the Software by Adaptiiv to Customer will not infringe or violate any patent, trademark, trade name, copyright, trade secret or other Intellectual Property Rights of any third party. . In the event of a breach of the foregoing representations and warranties, as Customer’s sole remedy, Adaptiiv shall either: (i) acquire such third party rights as are necessary to permit Adaptiiv to continue to license the Software; (ii) provide replacement non-infringing software that meet the specifications of Customer; or (iii) if neither (i) nor (ii) can be performed in a commercially reasonable fashion, remove such infringing component of the Software. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 7.5 OR OTHERWISE REFERENCED IN THIS AGREEMENT, THERE ARE NO REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF EITHER PARTY, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING ANY MATTER, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. IN PARTICULAR, ADAPTIIV DOES NOT REPRESENT, WARRANT, OR COVENANT THAT THE SYSTEM WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE SYSTEM SHALL BE ENTIRELY WITHOUT INTERRUPTION OR TOTALLY ERROR-FREE, OR THAT ALL IMMATERIAL DEFECTS (INCLUDING, BUT NOT LIMITED TO, MINOR OR COSMETIC DEFECTS THAT DO NOT SIGNIFICANTLY AND ADVERSELY AFFECT FUNCTIONALITY OR FEATURES) WILL BE CORRECTED. IN ALL OTHER RESPECTS, THE SYSTEM IS PROVIDED “AS IS” WITHOUT WARRANTIES, REPRESENTATIONS, OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
8.1 Ownership of Adaptiiv IP. Adaptiiv is and will be the exclusive owner of the Software, the System, and the Documentation, and all Intellectual Property Rights therein, and all Intellectual Property Rights that are or have been procured, created or developed by Adaptiiv (whether alone or jointly with one or more persons, and whether such activities occurred prior to or after the Effective Date and independent of or in connection with the System or the System Services) or created or developed for, or licensed to, Adaptiiv by another person (collectively, the “Adaptiiv IP”). All right, title, and interest in and to Adaptiiv IP will vest in Adaptiiv immediately upon creation, regardless of the state of completion of such Adaptiiv IP. Customer shall not assert any lien right, or other encumbrance on Adaptiiv IP and will permit Adaptiiv to always have full, free, and unfettered access to the Adaptiiv IP, even if there is a dispute between the Parties.
8.2 Grant of License. Subject to the terms and conditions of this Agreement, Adaptiiv grants to Customer, upon the Effective Date and for the duration of the Term, a non-exclusive, non-transferable, non-assignable, non-sub-licensable, royalty-free object code license to access and use, and to permit Authorized Users to access and use, the Software pursuant to the Documentation.
8.3 User Guidelines. Authorized Users may access and use the System solely in accordance with this Agreement. As between Adaptiiv and Customer, Customer is solely responsible for its Authorized Users and for all activities of Authorized Users using the System. Customer acknowledges that any use of the System by an Authorized User will be deemed to have been performed by Customer, and Customer is responsible for ensuring that Authorized Users comply with the terms and conditions of this Agreement. Customer shall prevent unauthorized access to, or use of, the System, and notify Adaptiiv promptly of any such unauthorized access or use.
8.4 Restrictions. Customer agrees that except as expressly provided herein, no part of the System may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying and recording. Customer also agrees that it may not: (i) remove or modify any Adaptiiv markings or any notice of Adaptiiv’s proprietary rights; (ii) make the System available in any manner to any third party for use in the third party’s business operations; (iii) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the System (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the System in order to build or support, and/or assist a third party in building or supporting, products or services competitive to Adaptiiv; (iv) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the System or related materials available, to any third party other than as expressly permitted under this Agreement; (v) send or store viruses, worms, time bombs, trojan horses or other harmful or malicious code, files, scripts, agents or programs; (vi) interfere with or disrupt the integrity or performance of the System; (vii) attempt to gain unauthorized access to the System or its related systems or networks; or (viii) use the System for unlawful purposes or for any purpose not expressly permitted by this Agreement. Customer further agrees not to use or permit use of the System including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may constitute an infringement of Intellectual Property Rights or other proprietary rights, or otherwise violate any applicable laws.
9.1 Confidential Information. The Parties acknowledge that as a result of each Party carrying out its obligations under this Agreement, from time to time one Party (the “Receiving Party”) may gain access to or become aware of information of the other Party (the “Disclosing Party”) which is marked as “proprietary” or “confidential” or which would, under the circumstances, be understood by a reasonable person to be proprietary and non-public (“Confidential Information”). The Receiving Party shall retain such Confidential Information in confidence and shall not disclose it to any third party with the Disclosing Party’s written consent. Each Party shall use at least the same procedures and degree of care which it uses to protect its own Confidential Information of like importance, and in no event less than reasonable care. Notwithstanding the foregoing, Confidential Information will not include information to the extent that such information (a) was already known by the Receiving Party without an obligation of confidentiality at the time of disclosure hereunder; (b) was generally available to the public at the time of its disclosure to the Receiving Party hereunder; (c) became generally available to the public after its disclosure other than through an act or omission of the Receiving Party in breach of this Agreement; (d) was subsequently lawfully and independently disclosed to the Receiving Party by a person other than Disclosing Party without any obligation of confidentiality; (e) was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information; or (f) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided, however, that the Receiving Party shall provide prompt notice thereof to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure.
9.2 Injunctive Relief. The Receiving Party acknowledges and agrees that any unauthorized use or disclosure of Confidential Information of the Disclosing Party might cause irreparable harm and might result in significant damages to the Disclosing Party, which harm and/or damages might be difficult to ascertain, and in the event of such breach or threatened breach by the Receiving Party, the Disclosing Party, in addition to other remedies which may be available in law, equity or otherwise, has the right to equitable relief, including injunctive relief, against the Receiving Party, without the necessity of proving actual damages or showing irreparable harm.
9.3 Return of Confidential Information. Upon expiration or earlier termination of this Agreement, or upon the Disclosing Party’s earlier request, Receiving Party shall promptly return to the Disclosing Party (or, at the Disclosing Party’s written direction, destroy) all the Disclosing Party’s Confidential Information and all copies, partial copies, revisions or modifications thereof, in Receiving Party’s possession, in whatever medium. At the request of the Disclosing Party, an officer of Receiving Party shall certify in writing its compliance with the foregoing obligations.
10.1 Expenses. Except as otherwise provided herein, each Party shall bear its own expenses in connection with this Agreement.
10.2 Notices. Notices to be given or submitted by either Party to the other pursuant to this Agreement will be in writing and shall be given by personal delivery, registered mail (postage prepaid), courier (courier prepaid), email or other similar means of confirmed electronic communication to the recipient at the address for such Party set out on the Order Form.
10.3 Waiver of Relief. Customer acknowledges that any default, forfeiture, or assignment provisions contained in this Agreement are, in view of the risks inherent in the business to be conducted by the Parties, reasonable and equitable. Customer waives any and all rights that it may have at law or in equity against default, forfeiture, or penalty if such provisions are invoked. The failure of a Party to enforce any provision of this Agreement will not constitute a waiver of such provision or the right of such Party to enforce such provision or any other provision.
10.4 Further Assurances. Each Party shall at its own cost and expense, from time to time and without further consideration, promptly execute and deliver all documents, and take or cause to be taken all reasonable actions necessary or desirable to give effect to the provisions and intent of this Agreement.
10.5 Assignment. Customer shall not assign or transfer, directly or indirectly, this Agreement or any of its rights, interests or obligations hereunder without prior written approval of Adaptiiv. Adaptiiv may delegate any of its rights and obligations under this Agreement and may assign this Agreement to any third party without the consent of Customer. For greater certainty, the Customer acknowledges and agrees that Adaptiiv may delegate any of its rights and obligations under this Agreement to an authorized reseller, distributor or agent.
10.6 Independent Contractor. Each Party is an independent contractor. Nothing in this Agreement, and no action taken under this Agreement, shall constitute the Parties as partners or create the relationship of principal and agent, employer and employee, agency, partnership, joint venture or fiduciary, and no Party shall represent otherwise.
10.7 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces any and all prior agreements, understandings, negotiations, commitments, communications, proposals, warranties, and representations, whether oral or written, between the Parties relating to the subject matter hereof.
10.8 Enurement. This Agreement shall be binding upon and shall enure to the benefit of the Parties and their successors, permitted assigns, receivers, receiver-managers and trustees.
10.9 Time of the Essence. Time shall be of the essence of this Agreement.
10.10 Severability. In the event that any provision of this Agreement is determined by a decision-maker with binding authority to be invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect the operation of any other provisions of this Agreement. Any invalid or unenforceable provision shall be deemed to have been deleted from this Agreement, as the case may be.
10.11 No Third Party Beneficiaries. Nothing in this Agreement shall entitle any entity that is not a Party to this Agreement or their respective successors to any claim, cause of action, remedy or right of any kind in respect of this Agreement or the subject matter of this Agreement.
10.12 Dispute Resolution. Any dispute regarding the interpretation, compliance with, or breach of this Agreement will be resolved as follows: (a) the Parties agree to negotiate in good faith commencing upon written notice from one Party to the other containing a summary of the dispute (the “Dispute Notice”), and all such negotiations shall be confidential and inadmissible in any subsequent proceeding without the written consent of the Parties; (b) if the dispute is not resolved by negotiation as set out above within thirty (30) days following the receipt of the Dispute Notice, the Parties may refer the dispute to a mediator acceptable to both Parties for non-binding mediation, and the costs of such mediation shall be shared equally by the Parties; (c) if the dispute is not settled pursuant to the foregoing within fifty (50) days after receipt of the Dispute Notice, either Party may seek any legal and equitable remedies available to it under applicable laws.
10.13 Governing Law. This Agreement will be governed by the laws of the state of New York and the federal laws of the United States of America applicable therein, without regard to conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from and will not apply to this Agreement. Each Party irrevocably submits to and accepts the jurisdiction of the courts of the state of New York and all courts of appeal therefrom as regards any legal proceedings relating to this Agreement. Each Party irrevocably waives, to the fullest extent that it may effectively do so, the defense of an inconvenient forum to the maintenance in the courts of the state of New York and all courts of appeal therefrom as regards any legal proceedings relating to this Agreement.
10.14 Survival. Sections 3.2, 0, 4.3, 4.4, 7.2, 7.3, 7.4, 7.5, 8.1, 8.3, 8.4, 9.1, 9.2, 9.3, 10.12 and 10.13, and Subsections 6.1(d), 6.1(g), 6.1(h) and all other provisions of this Agreement which are by their nature intended to survive the expiration or termination of this Agreement will survive such expiration or termination.