CaliberMRI Terms and Conditions of Sale
The terms and conditions detailed herein (“Agreement”) apply to your (“Customer”) purchase from CaliberMRI, Inc. (“CaliberMRI”) of CaliberMRI phantoms, equipment, and related hardware (collectively “Equipment”), licenses to use qCal-MR™ (“Software”), as well as training, services, and support related to Equipment and Software (“Services”).
THIS AGREEMENT SHALL APPLY UNLESS CUSTOMER AND CALIBERMRI HAVE ENTERED INTO A SEPARATE SIGNED AGREEMENT APPLICABLE TO THE PURCHASE OF THE EQUIPMENT, SOFTWARE OR SERVICES. BY PLACING AN ORDER WITH CALIBERMRI, CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. CALIBERMRI EXPRESSLY OBJECTS TO AND REJECTS ANY TERMS AND CONDITIONS IN CUSTOMER’S PURCHASE ORDER OR OTHER SIMILAR DOCUMENT. IF CUSTOMER DOES NOT AGREE WITH THESE TERMS, PROMPTLY NOTIFY CALIBERMRI AND RETURN THE PRODUCT UNUSED IN ITS ORIGINAL PACKAGING TO CALIBERMRI.
1. PRICES AND ORDERS. Prices are set forth in the quotation (“Quote”), proposal, or the populated service order issued by CaliberMRI to Customer (“Order”). All Quotes and Orders expire ninety (90) days from date of issuance, unless otherwise stated in the respective Quote or Order. All Quotes and Orders are subject to acceptance at the sole discretion of CaliberMRI. Orders will be considered accepted once CaliberMRI books the Order order and sends Customer a countersigned Order. CaliberMRI shall not be bound by changes to an Order unless agreed by CaliberMRI in writing. CaliberMRI reserves the right to cancel any Order if any information provided by Customer to CaliberMRI is inaccurate. CaliberMRI reserves the right to suspend or cancel any Quote or Order if Customer has any outstanding payments due to CaliberMRI or is not in good standing.
2. PAYMENT AND INVOICING. Unless otherwise specified in a Quote or Order issued by CaliberMRI, payment is due at the time the Order is placed. If a Quote or Order specified that a payment is due upon the occurrence of a certain event, such as shipment or acceptance of the Equipment, payment shall be due within thirty (30) days from the date of invoice. Payment shall be in the currency listed on the CaliberMRI 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 applicable law. If there are multiple items of Equipment in an order, payment will be due as specified in the Quote or Order. Nonstandard invoice processes requested by Customer (such as setting up an account in a vendor procurement system) may be subject to a five percent (5%) processing fee and any amounts CaliberMRI is required to pay to government authorities on behalf of customers (if required).
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 CaliberMRI provided however, CaliberMRI retains a security interest and right of possession in the Products until Customer makes payment to CaliberMRI in full. For orders to be delivered within the United State, CaliberMRI 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 a non-US shipping destination, Customer is responsible for all shipping and handling, including fees, customs, formalities and clearance, unless otherwise indicated by CaliberMRI. Shipment dates provided by CaliberMRI are estimates only, and CaliberMRI 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 CaliberMRI in writing within forty-five (45) days of the invoice date.
4. TAXES. Prices exclude, and Customer is responsible for, all 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 CaliberMRI 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 or, in the absence of such license agreements, the CaliberMRI Software License Agreement available at www.qmri.com/software-license-agreement at the time of order. All software is licensed, not sold, and title to the software remains with CaliberMRI or the applicable third party licensor(s).
6. THIRD PARTY BRANDED PRODUCTS. Non-CaliberMRI Branded Products that CaliberMRI resells may not be testable or repairable by CaliberMRI, and it may be necessary for Customer to contact the manufacturer or the publisher for service or any warranty claims. CaliberMRI does not warrant, has no obligation to support, and shall have no liability for Non-CaliberMRI Branded Products. The Limited Warranty and CaliberMRI Intellectual Property Liability sections of this Agreement do not apply to the sale and purchase of Non-CaliberMRI Branded Products. “Non-CaliberMRI Branded Products” means any third-party hardware, software, or service that CaliberMRI sells and identifies as a third-party product on the Quote or Order.
7. SERVICES. In addition to the terms and conditions of this Agreement, Services provided by CaliberMRI are also subject to any service agreements or statements of work agreed upon in writing by the parties.
8. RETURN POLICY. Subject to the requirements of this Agreement, Customer may return standard (i.e., non-customized) Equipment and Software within thirty (30) days of the invoice date. CaliberMRI reserves the right to charge Customer a fifteen percent (15%) restocking fee for any Products returned to CaliberMRI. 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-CaliberMRI Branded Products is in the sole discretion of CaliberMRI.
9. LIMITED WARRANTY. For a period of one (1) year from the invoice date, CaliberMRI warrants that its Equipment will be free of defects in materials and workmanship that cause the Equipment to fail to substantially conform to the then applicable CaliberMRI published specifications. For a period of ninety (90) days from the invoice date, CaliberMRI warrants that the Software (i) will perform substantially in accordance with the applicable documentation provided with the Software and (ii) the Software media will, in the form received from CaliberMRI, be free from defects in materials and workmanship. CaliberMRI warrants that all Services will be performed in a good and workmanlike manner. If CaliberMRI receives notice of a defect or non-conformance during the applicable warranty period, CaliberMRI will, in its sole discretion: (i) repair or replace the affected Equipment or Software, (ii) re-perform the affected Services, or (iii) refund the fees paid for the affected Equipment, Software or Services. Repaired or replaced Equipment or Software will be warranted for the remainder of the original warranty period or ninety (90) days, whichever is longer. If CaliberMRI elects to repair or replace Equipment, CaliberMRI may use new or refurbished parts or products that are equivalent to new in performance and reliability and are at least functionally equivalent to the original part or Equipment. Customer must obtain an RMA number from CaliberMRI before returning any Equipment under warranty to CaliberMRI. Customer will pay shipping expenses to send the affected Equipment to CaliberMRI, and CaliberMRI will pay shipping expenses to return the Equipment to the Customer. If, however, CaliberMRI concludes, after examining and testing returned Equipment, that it is not covered by the Limited Warranty, CaliberMRI will notify Customer and return the Equipment at Customer’s expense. CaliberMRI reserves the right to charge a fee for examining and testing Equipment deemed by CaliberMRI to be not covered by the Limited Warranty. This Limited Warranty does not apply if the defect of the Equipment or Software resulted from improper or inadequate maintenance, installation, repair, storage, or calibration (performed by a party other than CaliberMRI); unauthorized modification; improper environment; use of an improper hardware or software key; improper use or operation outside of the specifications for the Equipment or Software; improper voltages; accident, abuse, or neglect; or a hazard such as lightning, flood, or other act of nature. THE REMEDIES SET FORTH IN THIS SECTION ARE EXCLUSIVE AND THE CUSTOMER’S SOLE REMEDIES AND SHALL APPLY EVEN IF SUCH REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
10. NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PRODUCTS AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND CALIBERMRI DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO ALL PRODUCTS AND 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. CALIBERMRI 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. CALIBERMRI DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE.
11. 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 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. CALIBERMRI EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS OF THE PRODUCTS OR SERVICES FOR HIGH- RISK USES. CUSTOMER SHALL DEFEND, INDEMNIFY, RELEASE AND HOLD CALIBERMRI 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 ARISING FROM 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 CALIBERMRI.
12. 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 CUSTOMER’S 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, RELEASE AND HOLD CALIBERMRI 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 CUSTOMER’S SYSTEM OR APPLICATION, REGARDLESS OF WHETHER SUCH CLAIMS ARE FOUNDED IN WHOLE OR IN PART UPON ALLEGED OR ACTUAL NEGLIGENCE OF CALIBERMRI.
INTELLECTUAL PROPERTY LIABILITY. CaliberMRI agrees to defend any third-party claim that alleges the Equipment, Software or Services infringe any U.S. patent, copyright, or trademark (“Claim”), provided that Customer notifies CaliberMRI promptly upon learning of any Claim, or any allegation that the grounds for a Claim may exist, grants CaliberMRI sole control over the defense and settlement of the Claim and cooperates fully with CaliberMRI in preparing a defense for any Claim. CaliberMRI agrees to pay any final judgment or settlement resulting from any Claim, provided that the settlement is entered into in accordance with this Section. CaliberMRI shall not be liable for a settlement made without its prior written consent. Notwithstanding the foregoing, CaliberMRI shall have no obligation under this Section for any claim relating to or arising from (a) any Equipment which was designed and built pursuant to Customer’s specifications or design requirements (b) Customer’s modifications of Equipment, Software or Services; (c) failure to use Equipment, Software or Services in accordance with the applicable documentation provided by CaliberMRI; (d) the combination, operation, or use of Equipment, Software or Services with any hardware, software or service not provided by CaliberMRI; (e) the compliance of CaliberMRI with Customer’s specifications or directions, including the incorporation of any software or other materials provided by or requested by Customer; or (f) Non-CaliberMRI Branded Products.
The foregoing states the Customer’s sole remedy for, and the entire liability and responsibility of CaliberMRI 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 CaliberMRI believes in its reasonable opinion the Equipment, Software, or Services may be alleged to be infringing, for the purposes of mitigating any potential damages, CaliberMRI may, at its sole discretion, (i) procure for the Customer the right to continue to use the Equipment, Software, or Services; (ii) replace them with comparable Equipment, Software or Services that are free of such infringement; or (iii) refund the fees paid by Customer, and in the event of either (ii) or (iii) Customer shall promptly return the Equipment to CaliberMRI and/or terminate the use of the Software or Services.
13. PROPRIETARY RIGHTS. CaliberMRI 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 CaliberMRI under this Agreement. Nothing in this Agreement will be deemed to grant to Customer any ownership rights in or license rights to such intellectual property. Any ideas, suggestions, guidance or other information disclosed by Customer related to CaliberMRI Equipment, Software or Services and any intellectual property rights relating to the foregoing shall be collectively deemed “Feedback.” CaliberMRI shall own all Feedback, and Customer agrees to assign and hereby assigns CaliberMRI all of its right, title, and interest in and to such Feedback. To the extent that the foregoing assignment is ineffective for whatever reason, Customer agrees to grant and hereby grants to CaliberMRI a nonexclusive, perpetual, irrevocable, royalty free, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform and otherwise exploit such Feedback without restriction.
14. LIMITATION OF LIABILITY. CALIBERMRI 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, EQUIPMENT, SOFTWARE OR DATA; (C) LOSS OF REVENUE, PROFIT, OR BUSINESS OPPORTUNITY; (D) BUSINESS INTERRUPTION OR DOWNTIME; OR (E) INABILITY TO ACHIEVE A PARTICULAR RESULT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF CALIBERMRI 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 CALIBERMRI AND ITS LICENSORS, DISTRIBUTORS, AND SUPPLIERS (INCLUDING ITS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS), (2) REFLECTS AN ALLOCATION OF RISK BETWEEN CALIBERMRI AND CUSTOMER IN VIEW OF THE PURCHASE PRICE OF THE PRODUCTS AND SERVICES, (3) APPLIES EVEN IF CALIBERMRI 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 CALIBERMRI, 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 CALIBERMRI TO CUSTOMER SHALL BE LIMITED TO TEN THOUSAND DOLLARS (US $10,000 USD).
15. FORCE MAJEURE. CaliberMRI shall not be responsible for any delay or failure to perform due to any cause beyond its reasonable control, whether or nor foreseeable, including acts of terrorism, nature or governments; interruptions of telecommunications, power or transportation; failure of contractors or suppliers; pandemic, or inability to obtain necessary labor or materials (“Force Majeure Event”). In the event of a Force Majeure Event, CaliberMRI reserves the right to cancel the applicable Order.
16. EXPORT AND SANCTIONS LAWS AND COMPLIANCE. Products (which, for purposes of this Section, shall include the software and technology incorporated in or supplied with a Product and Service) purchased from CaliberMRI are subject to control under the U.S. Export Administration Regulations (15 CFR Part 730 et. seq.) administered by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) (www.bis.doc.gov) and other applicable U.S. export control laws and sanctions regulations, including those administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) (www.treas.gov/ofac). Products may not be exported or re-exported to any country where sanctions are imposed by the U.S. government (which currently includes Cuba, Iran, North Korea, Republic of Sudan and Syria but which may be modified by the U.S. government from time to time). Customer agrees it will comply with the export laws and trade sanctions of all applicable countries and will not export, re-export or transfer Products purchased from CaliberMRI without the required authorization, including an export or re- export license issued by the U.S. authorities, or to any prohibited destination or for a prohibited end-use. Products may also require export license(s) issued by the applicable authorities before being returned to CaliberMRI. The issuance of a Quote, a sales order acknowledgment, or a RMA by CaliberMRI does not constitute export authorization. Customer represents and warrants it is not ineligible or otherwise restricted by U.S. or applicable law to receive Products and it will not export, re-export, or provide Products to any person or entity on OFAC’s List of Specially Designated Nationals or on BIS’s Denied Persons List, Entity List or Unverified List or any other applicable restricted party list. CaliberMRI reserves the right to refuse and/or cancel any order if, at any time, CaliberMRI believes that any export controls or trade sanctions laws may be violated.
17. GOVERNING LAW AND FORUM. This Agreement shall be governed by the laws of the State of Colorado, U.S.A., without regard to principles of conflicts of laws. The parties submit to the personal jurisdiction of the state and federal courts in the State of Colorado. The parties expressly agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
18. LIMITATION PERIOD. CALIBERMRI SHALL NOT BE LIABLE FOR ANY CLAIM ARISING FROM AND/OR CONCERNING THIS AGREEMENT AND/OR ITS SUBJECT MATTER BROUGHT MORE THAN TWO YEARS AFTER THE OCCURRENCE CAUSING THE LOSS AND/OR DAMAGE GIVING RISE TO SUCH CLAIM (REGARDLESS OF WHETHER SUCH OCCURRENCE WAS DISCOVERABLE AT THE TIME).
19. UPDATES. CaliberMRI reserves the right to update this Agreement at any time, effective upon posting an updated version at www.qmri.com/terms-and-conditions; however, the terms and conditions in effect at the time of purchase shall apply to that purchase of Products or Services.
20. 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 CaliberMRI. No delay or failure by CaliberMRI 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 by CaliberMRI 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”. For the avoidance of doubt, whenever the term “purchase” is used herein with respect to Software, it shall mean the purchase of a license for Customer to use the applicable Software. 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, and the illegal, unenforceable, or conflicting part, term, or provision shall be reformed by a court of law with binding authority to the maximum extent possible to reflect the intent of this Agreement. 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.