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End User Terms and Conditions (“Agreement”)
Notwithstanding any different or additional terms or conditions contained in an invoice, proposals or other communication, the parties accept orders for products (“Products”) or software (“Software”) or services (“Services”) only on the condition that the parties expressly accepts this Agreement. Unless the parties accept these terms and conditions without deviation or reservation, no contract shall result from an order. Any terms and conditions in any confirmation that states different or additional terms shall be null and void. The parties hereby object to and reject such different or additional terms and any such different or additional terms shall be deemed to be material alterations and notice of objection to such terms is hereby given. Seller’s commencement of performance of Services or Seller’s shipment of any Products or Software shall be deemed to be acceptance of this Agreement. Any notice by Seller objecting to this Agreement must be in writing separate from any form including but not limited to any invoice or acknowledgement form, and must be communicated to Buyer prior to any shipment of Products or Software or commencement of any Services. Any amendment, waiver or other alteration of this Agreement by Seller shall be effective only if made by mutual agreement.
- Price. The prices indicated on a Purchase Order are firm and no change or adjustments to price or any charge, surcharge, or fee will be valid.
- Inspection and Rejection Payment for Products and Services delivered or performed shall constitute acceptance of such Products and Services. If Buyer finds that any of the Products and Services purchased under this Agreement do not conform to the Agreement, Seller may, at its discretion, replace the non- conforming Products and Services with conforming Products and Services at Seller’s sole cost
- Delivery Delay and Defaults. Seller is not responsible for delays or defaults beyond Seller’s control and not due to Seller’s negligent acts and omissions.
- Risk of Loss. Seller will deliver and perform all orders of Products and Services under this Agreement and title and risk of loss to Products and Services shall pass to Buyer upon purchase or license of such Products and/or Services.
- Invoices. When payment is not due upon purchase, terms of payment are net 30 days after the purchase date.
- Conflict of Interest. Seller represents that none of Buyer’s employees, officers or directors are employees, officers or directors of Seller or serve on any boards or committees of or in any advisory capacity with Seller.
- Warranty. Seller expressly warrants that all Products furnished and all Services performed shall conform to the applicable specifications provided with the Products, Software or Services. Upon failure of the software to function in accordance with specifications during the warranty period, Seller shall promptly, and at no charge to Buyer, repair or replace the software. Otherwise, Products, Software and Services are provided AS IS. SELLER HEREBY DISCLAIMS ALL AND EVERY IMPLIED WARRANTY, INCLUDING GOOD TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- Access to Records. If the subject of an order is services within the scope of Section 952 of the Omnibus Reconciliation Act of 1980 and the regulations promulgated thereunder, for a period of six (6) years after the furnishing of such services the Secretary of Health and Human Services and the Comptroller General of the United States shall, upon written request, have access to such books, documents and records of Seller necessary to verify the nature and extent of the costs of the Services provided by the Seller, in accordance with said laws.
- Use of Name. Without prior written permission, no party (including its subcontractors, employees, or agents) may not use the other party’s name or trademarks as an endorsement or otherwise release information relating to the order.
- Compliance with Laws. The parties shall comply with all applicable state and federal laws, rules and regulations, including (i) the federal anti-kickback statute (42 U.S.C. 1320a-7(b)); (ii) the “Stark Law” (42 U.S.C. 1395nn) and (iii) federal and state privacy laws. Accordingly, no part of any consideration paid hereunder is a prohibited payment for the recommending or arranging for the referral of business or the ordering of any items or services: nor are the payments intended to induce illegal referrals of business. In the event any part of this Agreement is determined to violate federal, state or local laws, rules, or regulations, the parties agree to negotiate in good faith revisions to the provisions which are in violation. In the event the parties are unable to agree to new or modified terms as required to bring this Agreement into compliance, either party may terminate this Agreement upon written notice to the other party.
- Debarment. Seller represents and warrants that it has not been debarred, suspended, excluded or otherwise determined to be ineligible to participate in federal healthcare programs or federal procurement and non-procurement programs (collectively “Debarred”) and agrees not to engage or assign any employee, agent or contractor (“Agent”) to perform Services who has been Debarred. Buyer may terminate this Agreement without further obligation in the event that Seller or any Agent is Debarred. Accordingly, Seller shall provide Buyer with immediate notice if Seller (i) receives notice of action or threat of action with respect to Debarment; or (ii) becomes debarred.
- Tax Exempt Status. Seller recognizes that Buyer may be a tax-exempt organization and agrees that actions taken under this Agreement will take into account and be consistent with Buyer’s tax-exempt status. Buyer will provide Seller with a tax-exemption certificate upon Seller’s request.
- HIPAA. If the Services to be provided by Seller are such that Seller may be a Business Associate of Buyer for purposes of the Health Insurance Portability and Accountability Act of 1996, as amended from time to time (“HIPAA”), Seller agrees to enter into negotiations to determine reasonable agreed upon terms related to a Business Associate Agreement with Buyer.
- Limitation of Liability. NEITHER PARTY SHALL HAVE ANY LIABILITY IN REGARD TO CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY IN CONNECTION WITH OR UNDER THIS AGREEMENT (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY OF LAW) SHALL NOT EXCEED THE FEES PAID FOR THE PRODUCT, SERVICE OR SOFTWARE FROM WHICH THE DAMAGE OCCURS.
- Applicable Law. The terms and conditions of all Agreements shall be governed by and construed in accordance with the laws of the State of Ohio without regard to its conflict of laws provisions. All actions brought under or in connection with this Agreement shall be brought in Cuyahoga County, Ohio courts. The application of the model Uniform Computer Information Transactions Act approved by the National Conference of Commissioners on Uniform State Laws (as enacted and/or modified into any state law in the U.S.A.), is expressly excluded and shall not apply.
- Product Use and Restrictions. User agrees to maintain the Product in the form provided, without modification, unless written approval is obtained from the author or modification is expressly permitted in the Product specification. User agrees to use the Product for her/his own work, consistent with restrictions outlined in the Product specification, without distribution to other colleagues outside those restrictions. User agrees to use the Product for no more than the agreed license terms specified at purchase, with continued use beyond that period requiring a new purchase or renewal. User agrees to identify and cite the Product in any publications and presentations.