The products are offered and sold by Philips Healthcare a sector of Philips Electronics Australia Limited of 65 Epping Road, North Ryde NSW 2113 Australia ABN 24 008 445 743 (‘Philips’) to you (‘You’ or ‘Customer’) only under the terms and conditions described below.
Our Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.
The rights and remedies contained herein are limited to the extent that the Australian Consumer Law applies. You may not be entitled to remedies under the Australian Consumer Law as it may not apply to You.
1. Definitions and Interpretation
Authorisations means an approval, consent, declaration, direction, exemption, notarisation, licence, permit, certificate, waiver, or other authorisations, however described, required by any Law and includes any renewal or amendment.
Authority means any: (a) government, government department, government agency, or any semi or non-governmental entity claiming to have direct or indirect authority in the performance of the Work; or (b) any person (whether autonomous or not) charged with the administration of the Law.
Contract means a contract between Philips and the Customer comprising of the Philips’ quotation (including all documents and exhibits attached, these Conditions of Sale including the Philips Software License terms as attached herein, Philips acknowledgments to the Customer order (if any), and any variations to the Philips proposal or these Conditions of Sale as agreed in writing between the parties). In the event of any inconsistency between the documents comprising the Contract, the following order of precedence shall apply (a) Philips order acknowledgement (if any); (b) Any variations to Philips’ quotation or the terms agreed between the parties in writing; (c) Philips’ quotation; (d) Exhibits; and (e) these Conditions of Sale.
Contract Sum means the total price payable for the Work under the Contract.
Customer Acceptance applies only when Philips and Customer have explicitly agreed in writing any Customer Acceptance Testing requirements to be performed in addition to the Philips’ requirements of Practical Completion, and means that moment in performing any Work when both Philips and Customer agree that: (a) all documents and other information required under the Contract has been supplied; (b) the requirements for Practical Completion have been completed and all additional Customer Acceptance Testing has been completed; and (c) Philips has completed the Work and all other Philip’s obligations under the Contract, except for minor deficiencies - which do not prevent the Goods from being used for its stated purpose, and (d) the Goods are available for first use on patients.
Customer Acceptance Certificate means a certificate in the form prescribed by Philips (unless otherwise agreed in writing) whereby both Customer and Philips confirm that Customer Acceptance has been achieved.
Customer Acceptance Testing means all additional tests, inspections, documentation, forms and/or protocols, that is agreed in writing by Customer and Philips, and which is additional to the standard Philips-defined requirements of Practical Completion.
Delivery means, unless otherwise agreed in writing, Delivery Duty Paid (DDP) to the Site, according to Incoterms 2010, and applies to all Goods.
Delivery Date means, for any Goods to be supplied by Philips, the final date by which Goods must be delivered to Site pursuant to the Contract. Unless otherwise agreed in writing, the delivery date as confirmed in Philips’ acknowledgement (if any) of the Customer’s order shall supersede the delivery date as requested in Customer’s order.
Delivery Notification means, the notification sent by Philips (or Philips’ representative) to the Customer (or the Customer’s representative) at the Site, which announces the Delivery of Goods to the Site on a specific date, in accordance with Philip’s obligations under the Contract to achieve Delivery by the Delivery Date.
Goods or Products means any product supplied by Philips excluding third party products furnished to the Customer by Philips under the Contract.
Installation means any installation, commissioning, inspection, and/or electrical and mechanical testing of the Goods, or part thereof, required to be part of the Work; all in accordance to Philips’ published specifications.
Latent Conditions means physical conditions on Site and near its surroundings, including artificial things but excluding weather conditions, which differ materially from the physical conditions which should have been reasonably anticipated by Philips at the date of the Contract if Philips had inspected the Site and its near surroundings.
Law means applicable: (a) statutes, rules, regulations, by-laws, orders, awards, codes, standards, ordinances, and proclamations of the jurisdiction where the Work or part of the Work is being performed; (b) Authorisations and requirements of Authorities or organisations having jurisdiction where the Work or part of the Work is being performed; and (c) fees, charges, taxes, tariffs, and duties payable in connection with the foregoing.
Practical Completion means that moment in performing any Work, when Philips is of the reasonable opinion that: (a) the Work has been completed; and (b) whenever the Work includes Installation of Goods by Philips that, (i) the Goods have been electronically and mechanically tested for operation compliant to Philips’ published specifications, except for minor deficiencies, which do not affect the operational use of the Goods for the stated purpose, (ii) all documents and other information in relation to the order, that are essential for the use of the Goods, have been supplied, and (iii) the Goods are available for first use on patients.
Practical Completion Certificate means a certificate in the form prescribed and issued by Philips evidencing that Practical Completion has been reached and specifying the actual Practical Completion Date.
Practical Completion Date means the date specified in the Contract for Practical Completion, which may be stated in the Philips quotation, Customer order or Philips acknowledgement, or specifically agreed by Philips and Customer during the duration of the Contract. Upon reasonable completion of the Work, the actual date will be evidenced in the Practical Completion Certificate as communicated by Philips to Customer in writing.
Prepared Room means the room where the Installation of the Goods is to be performed, has been constructed, prepared, cleaned and made available for the Work to be performed, in accordance to: (a) the agreed pre-requisites (if any) as stated in the Philips quotation; (b) the agreed layout drawing (if any); (c) the agreed Statement of Work (if any); (d) the Philips site preparation guides that are applicable to the Goods, and; (e) the requirements described in Clause 9.
Site or Site Address or Delivery Address or Ship-To Address means the place of Delivery for the Goods specified in the Contract, and is a valid address.
Standard Business Hours means Monday to Friday (inclusive) from 8:30am to 5:00pm, excluding public holidays as defined in the State or Territory where the work is being performed.
Work means: (a) the supply of Goods (for Goods to be supplied and delivered only, but not installed by Philips); (b) the Installation of Goods (for those Goods to be supplied, delivered and installed by Philips); (c) the rectification of any Defects, and; (d) the provision of any other services including but are not limited to; provision of Clinical Applications Training, or construction services, or consultancy services, or additional transportation services, or supply of third party materials. that are not manufactured by Philips. (Other Services)
2. Validity of Quotation
Unless otherwise stated by Philips, the Philips' quotation shall remain open for acceptance within the period stated in the quotation or if no period stated then within thirty (30) days after the date shown in the quotation. An updated or revised Philips quotation shall render all previous Philips quotations as invalid in their entirety.
Any Customer order, whether or not arising from Philips' quotation, shall be subject to Philips' confirmation in writing. These Conditions of Sale shall prevail over any conditions issued by the Customer, unless and to the extent expressly stated otherwise in Philips' quotation.
3.1 Unless otherwise stated by Philips, all prices quoted are Delivery Duty Paid to the Site, according to Incoterms 2010, and applies to all Goods. Delivery is completed at the point the freight vehicle arrives at the Site Address and makes the Goods available for unloading, but not unloaded. The amount payable to Philips shall be the price, any additional charges plus any Goods and Services Tax payable.
3.3 Unless otherwise agreed, Philip’s freight pricing includes standard sea freight and/or standard land freight.
3.4 Unless otherwise agreed, the price includes standard packing as defined by Philips. The price of special packing (either requested by Customer, or rendered necessary due to Delivery to Site or Work on Site being delayed or interrupted) will be charged to Customer.
3.5 Prices quoted for optional items are valid only when ordered at the same time and as part of the main system.
3.6 Unless otherwise agreed, Philips’ delivery pricing excludes: (a) all costs associated with cranes and forklifts; (b) all costs associated with enabling large vehicle access to the unloading point at the Site (such as, but not limited to, barricading of roads, traffic management, safety management, construction of ramps); (c) site inductions; (d) Authorisations from Authorities or 3rd parties; and (e) costs associated with transporting any Goods into a building (such as, but not limited to, dilapidation reports, construction of ramps, provision of tools, structural reinforcement, modifications to the building, safety management).
4.1 Unless otherwise stated by Philips, payment terms are within 30 days from the date of the invoice.
4.2 Invoicing of Goods: If the Work includes supply of Goods only, and if the Contract Sum consists of an itemised price for the supply of Goods, the invoices for the full price of each item of the Goods will be issued 100% upon Delivery.
4.3 Invoicing of Installation: If the Work includes Installation of Goods at Site and if the Contract Sum consists of an itemised price for Installation of the Goods, the invoices for the full price of each item of Installation will be issued upon Practical Completion.
If the Work includes supply and Installation of Goods, and if the Contract Sum consists of an itemised price for the supply and Installation of Goods, the invoices for the full price of each item of the Goods will be issued: 90% upon Delivery or when the Goods were available for Delivery (whichever occurs earlier), and; 10% upon Practical Completion.
4.4 Invoicing of Other Services: If the Work includes the provision of other materials or other services (excluding Goods and Installation) and if the Contract Sum consists of an itemised price for the provision of such other materials or other services, the invoices will be issued as a percentage of the price corresponding to the percentage of Work completed for the provision of other services or materials.
4.5 Invoicing of lump sum contracts: If the Contract Sum does not include itemised pricing of the Goods, Installation or other services or materials which comprise the Work, both parties agree that the Goods shall be valued at 90% of the Contract Sum, and the Installation and other services and materials shall be valued at 10% of the Contract Sum, and the invoicing terms are:
• 30% of the Contract Sum upon placement of order to Philips;
• 60% of the Contract Sum upon Delivery of Goods or when the Goods were available for Delivery (whichever occurs earlier); and
• 10% of the Contract Sum upon Practical Completion.
4.6 If the performance of any Work is delayed by the Customer or the Customer’s agents, consultants, employees, officers, representatives, Authorities, or other contractors, then payment of the full Contract Sum for the delayed Work shall be made by the Customer to Philips within thirty (30) days after the notification by Philips that Philips is ready to perform the Work.
If the performance of any Installation is delayed for twelve months (12 months) or longer, by the Customer or the Customer’s agents, consultants, employees, officers, representatives, Authorities, or other contractors, from the initially agreed date of Practical Completion of the Work, then Philips shall be released of all obligations to perform Installation.
4.7 Philips may at any time require any amount that has become payable to be paid immediately and before Delivery or any other performance by Philips, if Philips considers the Customer to be a credit risk.
4.8 Where payment is overdue Philips may charge interest at the rate of 3% plus the overdraft rate charged by Philips’ bankers at the time of default calculated on a daily basis on any monies due but unpaid. If the Customer fails to pay any amount when due, Philips may discontinue the performance of the Work, or deduct the unpaid amount from any amounts otherwise owed to the Customer by Philips or any of its affiliates under any agreement with the Customer, in addition to any other rights or remedies available to Philips. Furthermore, Philips, or its designated representative, will be allowed, without notice to the Customer, to enter any premises in which the Products may be found and render them inoperable or remove them, and hold and sell them in accordance with the applicable law. In any action initiated to enforce these Conditions of Sale following a Customer default or otherwise, Philips shall be entitled to recover as part of its damages all costs and expenses, including reasonable attorney’s fees, in connection with such action.
4.9 To the extent permitted by law, the, Contract cannot be cancelled. Delivered Goods and Other Services and materials are not subject to return. Collected payments are not subject to refund.
5.1 If at any time before the Delivery of any Goods and provision of Works the Customer informs Philips that finance is to be arranged in respect of those Goods the following shall apply:
5.1.1 The Customer agrees to procure a finance company to purchase the Goods and shall notify Philips of the name and address of such finance company.
5.1.2 Philips shall address its invoice for the Goods to the finance company and all payments by the finance company shall discharge to that extent the Customer’s obligations under clause 4, but all other provisions of the Contract shall remain in full force and effect.
5.1.3 If there shall be any breach by the Customer of this clause, or if the nominated finance company shall for any reason (other than default on the part of Philips) fail within the times stated in clause 4 to pay in full the amount of any invoice addressed to it, Philips may address or re-address the invoice to the Customer who shall thereupon be bound to purchase the Goods from Philips and to pay for the same in accordance with clause 4.
5.1.4 The Customer acknowledges that no discussions, correspondence or other communications between the parties concerning the sources or availability of finance shall in any way affect the Customer's obligations under this clause.
5.1.5 Goods will be delivered only after receipt of satisfactory written authorisation from the finance company.
6. Title and Risk of Loss
6.1 Upon Delivery, the Goods shall be at the Customer’s risk, notwithstanding that Philips may be required to perform Installation or Other Services in connection with the Goods. The Goods remain the property of Philips until payment is received in full. If Philips becomes entitled to exercise its rights under clause 20(a) it may also or instead, then or thereafter, and notwithstanding any previous waiver, without notice retake possession of the Goods and for that purpose may enter any premises in which the goods are for the time being located.
6.2 Title to and risk of accidental damage to or loss of equipment and material of any kind provided by the Customer shall at all times remain with the Customer, except where such damage or loss has resulted from negligence by Philips.
6.3 In the case of any postposed or delayed Delivery to Site by the Customer, the risk of the Goods shall pass to the Customer upon Philips’ Delivery of the Goods to the warehouse of a third party provider.
7. Technical Changes; Obsolescence of Products
Philips shall have the right to make changes in the design or specifications of the Products at any time, provided that such change shall not adversely affect the performance of said Products.
During the validity period of Philips’ quotation, some of the Products might become obsolete. In such a situation, Philips shall endeavour to provide equivalent replacement Products at similar prices, but shall not be held responsible in case there are no replacements available.
8.1 If the Work includes supply of Goods to Site only (without Installation by Philips), Philips shall supply the Goods to Site by the Delivery Date.
8.2 If the Work includes supply and Installation of Goods to Site, Philips shall supply the Goods to Site by the Delivery Date, and perform Installation of the goods by the Practical Completion Date.
8.3 Any other delivery, installation or completion date or period is an estimate only, and is not to be construed as a fixed date unless explicitly agreed in writing by the Philips authorised representative.
8.4 Change of Delivery Date: Any Customer request to change a Delivery Date will only be agreed if Philips has not commenced manufacturing of the Goods (or procurement of any part of the Goods) and if such a requested change is agreed in writing by the Philips authorised representative.
8.5 Change of Delivery Address: Any Customer request to change a Delivery Address will only be agreed if Philips has not completed shipment documentation and secured freight services and if such a requested change is agreed in writing by Philips authorised representative.
8.6 Unloading: Unless otherwise agreed, Philips will not be responsible for unloading the Goods and moving it to the place of Installation.
8.7 Philips shall make reasonable efforts to meet the Delivery Dates quoted or acknowledged, but shall not be liable for failure to meet those dates. In case Philips cannot deliver the Products to the Delivery Address by the Delivery Date scheduled, due to reasons outside Philips' reasonable control, Philips may make part delivery or alternatively shall be entitled to store the Products concerned at the Customer's expense and risk. In such case the warehouse receipt(s) shall serve as substitute(s) for the shipping documents in all respects and the Customer undertakes to reimburse within fourteen (14) days of Philips' first demand any and all additional expenses so incurred.
8.8 Storage: If after a period of 14 days from the date of Delivery Notification the Delivery is delayed by any act or omission of the Customer or the Customer’s agents, consultants, employees, officers, representatives, Authorities, or other contractors, , Philips may arrange for storage of the Goods at a third party storage provider or elsewhere. The Customer shall bear all associated costs incurred by Philips including all applicable storage, insurance, demurrage, handling and administrative costs.
8.9 Partial Deliveries: Philips reserves the right to make partial deliveries and to separately invoice the same, unless otherwise agreed.
8.10 Separate Portions: These Conditions Of Sale shall apply to any separable portions of the Work.
8.11 The Customer is responsible to receive the Goods at the Delivery Address on the Delivery Date, and bears the risks and costs of failing to do so.
9. Customer’s Obligations
9.1 Provision of Information: The Customer shall do all things reasonably required by Philips and provide Philips with all approvals and information reasonably required by Philips to enable fulfilment of all Philip’s obligations under the Contract without delay or interruption.
9.2 Incorrect Information: The Customer shall be responsible for and bear the cost of any alteration to the Work necessitated by any discrepancy, error or omission in any drawings, specifications or other information supplied or approved by the Customer.
9.3 Customer Acceptance Testing: Philips’ Installation includes Philips standard testing procedures of the Goods according to Philips’ published specifications, which upon completion by Philips is sufficient to handover the Goods to the Customer for clinical use. To the extent the Customer requires additional tests, inspections, documentation, forms or protocols as part of the Customer’s own requirement for Customer acceptance, the Customer shall submit to Philips all the additional testing and acceptance requirements within ten (10) days from the Customer’s order placement to Philips. To the extent Philips has the capability to fulfil the Customer’s additional testing and acceptance requirements, the Customer and Philips shall endeavour to agree the scope, cost and time extension for the additional requirements for the Customer Acceptance Testing protocol, however under no circumstance shall the foregoing delay or interfere with the performance of the Work.
9.4 Authorisations: Unless otherwise agreed, the Customer shall be solely responsible for obtaining and providing all Authorisations necessary for the fulfilment of the Contract at the Customer’s cost. Unless otherwise agreed, the Customer is solely responsible for all aspects of the Site’s design and the compliance of those designs with the Law. The Customer agrees that, notwithstanding any information provided, advice given or other actions or inactions performed by Philips during the execution of the Contract, under no circumstances will any act or omission by Philips be construed as Philips acquiring responsibility for any aspect of the Site’s design and compliance to Law.
9.5 On-Site Preparation works: If the Work includes any on-Site works (such as, but not limited to into-Site delivery or Installation of Goods by Philips), the Customer shall be responsible for the following at Customer's cost and risk:
(a) The provision of adequate and lockable storage on or near the Site for the Goods in order to ensure protection against theft and any damage or deterioration. Any item lost or damaged during the storage period shall be repaired or replaced at the Customer's cost.
(b) Provision of dry lockable storage space considered reasonable by Philips for the storage of machinery, equipment, materials and tools.
(c) Provision of 240 Volt 50 Hertz A/C single-phase electricity, at locations considered reasonable by Philips to enable Installation of Goods.
(d) Provision of Internet Protocol addresses, Port forwarding setup, Routing assignments, and other Information Systems support, that may be necessary for Philips’ remote support during Installation and Philips’ remote diagnostics during warranty period.
(e) Adequate lighting of all areas necessary to perform the Work.
(f) Use of lifts, pathways, scaffolding, first aid facilities, toilet facilities, washing facilities and other amenities, drinking water, rest areas, furniture for meals and rest, by Philips staff and Philips’ representatives.
(g) The timely provision of the Authorisations required by the pertinent Authorities for or in connection with the installation and the operation of the Goods.
(h) Philips assumes that no hazardous material exists at the Site. If any such material exists, the Customer shall be responsible for the proper removal and disposal of the material at the Customer’s expense.
(i) The timely supply of materials and equipment (which are the responsibility of either the Customer or others) and the execution and provision of building services and infrastructure that may be applicable and associated with the Prepared Room and outside the scope of the Work, such as but not limited to; air-conditioning, mechanical exhausts, chilled-water, mains electrical power, information systems (IT) systems, security, quench pipe, shielding).
9.6 Requirements for Prepared Room. If the Work excludes provision of a Prepared Room (or part thereof) by Philips, then Customer is obligated to fulfil the requirements of a Prepared Room at Customer’s cost, prior to Philips commencing Work, The Customer’s on-Site preparation obligations for a Prepared Room may include, but are not limited to:
(a) The timely execution and completion of all preparatory works, in accordance to: the Philips Site Preparation guides that are applicable to the Goods; the agreed Philips Site Layout drawings; the agreed Statement of Work (if any); and in conformity with any requirements that Philips shall indicate to the Customer in due time, to meet the requirements of a Prepared Room.
(b) ensuring that Philips personnel and contractors are able to commence the Work immediately upon arrival at the Site.
(c) ensuring that Philips personnel and contractors can perform the Work in an uninterrupted manner;
(d) ensuring Philips has unrestricted and unimpeded access to the Site.
(e) ensuring (where appropriate) the ready availability of necessary roads and other access ways (including, but not limited to, elevators, stairs, corridors, door entries, ceilings) to the Site and ensuring that such roads and access ways are suitable for the movement of heavy and/or specialised equipment to and from the Site.
(f) supplying Philips with accurate forecasts and all relevant information, in a timely manner, that may impact Philips’ performance of the Work, including without limitation the location and capacities of power cables, gas and water pipes, drawings, and static data of structures.
(g) ensuring adequate power supply terminating at a point to be specified by Philips, including the necessary main switch and fuses, all according to Standards Australia Wiring Rules (AS/NZS 3000:2017) and to the requirements of other Authorities.
(h) ensuring that the Site conditions are within the Operational Conditions before the Delivery of Goods, and that correct Operational Conditions of the Site are maintained throughout the entire duration of the Goods being located in the Site.
(i) doing all things necessary to ensure that outside influences do not adversely affect the function of any Goods located at the Site, and that any Goods located at the Site do not adversely affect the outside environment or others.
9.7 The site preparation shall be in compliance with all safety, electrical and building codes, and the Laws relevant to the Products and their installation. Sufficiency of such plans and specifications, specifically including, but not limited to the accuracy of the dimensions described therein, shall be the sole responsibility of the Customer. The Prepared Room shall be made available to Philips or Philips’ representative without obstacles in due time to enable Philips or Philips’ representative to start the Installation at the scheduled date; installation personnel shall not be called upon the Site until all preparatory work has been, in the sole opinion of Philips, satisfactorily completed.
9.8 If any failure of the Customer to meet the requirement of a Prepared Room, in accordance with this clause, causes Philips to be delayed in performing the Work or necessitates the Work to be performed outside Standard Business Hours, Philips may without limiting any other remedies available to Philips under the Contract and at Law, arrange for the Work to be performed at the Customer’s cost and the Customer shall indemnify Philips upon demand of all such additional costs, charges and expenses incurred by Philips in doing so.
9.9 Unless otherwise agreed, the Customer shall give Philips at least three (3) weeks written prior notice of the date upon which access into the Site will be made available to Philips for the commencement of on-Site works.
9.10 Latent Conditions: Philips shall promptly notify Customer upon becoming aware of any Latent Condition while performing the Work and shall give details of the Latent Condition encountered. To the extent Philips is capable to resolve the Latent Condition, then Philips shall provide details of the additional work, resources, extension of time, and reasonable price which Philips estimates to be necessary to resolve the Latent Condition, which the Customer and Philips shall promptly agree – otherwise the Customer shall be responsible to resolve the Latent Condition.
9.11 If the Customer does not provide or procure the provision of the above goods, facilities and services to the satisfaction of Philips, Philips may do so (at Customer’s expense) provided that the Customer has first been informed of the non-compliance and been given an opportunity to remedy the non-compliance.
9.12 In case any or all of the above conditions are not properly or timely complied with, or Philips or Philips representative is not given access to the site, or has to interrupt the installation and subsequent testing for reasons not attributable to Philips, the period of completion shall be extended accordingly and any and all additional costs resulting therefrom shall be for the Customer's account.
PHILIPS NEITHER ASSUMES LIABILITY NOR OFFERS ANY WARRANTY FOR THE FITNESS OR ADEQUACY OF THE PREMISES OR THE UTILITIES AVAILABLE AT THE PREMISES IN WHICH THE PRODUCT IS TO BE INSTALLED, USED OR STORED.
10.1 Installation shall commence after: (a) the Goods have been delivered to Site, and; (b) Customer has fulfilled all their on-Site preparation works and obligations under clause 9, and; (c) the location of Installation of the Goods has fulfilled the requirements of a Prepared Site.
10.2 Site Conditions: If, in Philips’ sole opinion, the Site environmental conditions are not suitable for the Installation of the Goods, a safe working environment does not exist on Site or if Customer fails to have provided any facility or assistance to be provided by it under the Contract, Philips’ obligations to provide Site Work shall be suspended (without liability to Philips) until the conditions have been rectified to Philips’ satisfaction and any time limits for completion of the Site Work shall be appropriately extended.
Requests to perform additional work. The Customer shall not request Philips’ personnel to perform any work not specified in the Contract without obtaining Philips’ prior written approval.
Confirmation of hours worked. Where any provision of the Contract enables Philips to charge the Customer for hours worked by Philips’ Personnel, the Customer shall at least monthly or upon Philips’ request confirm the number of hours worked by Philips’ personnel as shown on Philips’ records or other documents. If the Customer does not provide such confirmation without reasonable cause, Philips may invoice the Customer on the basis of such unconfirmed records and the Customer shall be liable accordingly.
11. Practical Completion and Acceptance
11.1 If the Work consists of Installation of Goods, Philips shall notify the Customer when the Goods installed will be ready for testing, and Customer Acceptance Testing (if any), inviting the Customer to attend the Philips’ standard testing procedure, or such additional tests as may have been agreed upon in writing to demonstrate compliance with the agreed specifications and/or to inspect the installation work as part of the Customer Acceptance protocol.
11.2 If the Customer's representative fails to attend the testing activities on the date notified, the technical staff of Philips or its representative will commence with the testing and these tests shall be considered performed in the presence of the Customer's inspector and Philips shall deem the Work as completed. On the basis of the performed Work, Philips shall sign and issue the Certificate of Practical Completion, upon which the Goods shall be made available to the Customer for first patient use.
and issue the Practical Completion Certificate to the Customer.
11.3 Insofar as a Customer Acceptance Test protocol has been agreed and deemed to apply to the Contract, Philips or its representative will perform the additionally agreed tests and shall submit the tests and forms to the Customer. Philips shall prepare and the Customer shall sign the Customer Acceptance Certificate, upon which the Goods shall be made available to the Customer for first patient use.
11.4 In case of rejection of the Products installed for justified reasons, to be submitted to Philips in detail and in writing within ten (10) days after completion of the acceptance tests concerned, Philips shall as a sole remedy correct the shortcomings as soon as possible and the relevant parts of the acceptance test shall be repeated within a reasonable period of time in conformity with the procedures outlined above.
11.5 Insofar as a Customer Acceptance protocol applies to the Contract, if within ten (10) days after completion of the Customer Acceptance Test Philips shall not have received the Customer Acceptance Certificate signed by the Customer or a report of rejection for justified reasons the Goods installed shall be considered as having been accepted by the Customer. The Customer acknowledges that the Goods may not be used for clinical purposes until the Customer has signed the Customer Acceptance Certificate.
11.6 Minor deficiencies or deviations not affecting the operational use of the Goods installed shall be stated in the Customer Acceptance Certificate, but shall not obstruct or suspend acceptance. Philips undertakes to remedy such defects as soon as possible. Notwithstanding anything to the contrary, Customer Acceptance shall be deemed to have occurred on the date of: (a) Signing of the Customer Acceptance Certificate; or (b) first clinical use by the Customer or its employees, agents or contractors; whichever occurs first.
11.7 Unless otherwise agreed, the Contract excludes on-Site safety testing of the Goods, and excludes on-Site compliance testing to any standards defined by Law.
12 Applications Training
If the Work consists of Applications Training, the Applications Training is to occur during or immediately after Installation of the Goods. In the event the Applications Training is delayed or postponed, due to reasons not attributable to Philips, beyond the agreed Practical Completion of the Work, then Practical Completion shall be deemed to have occurred and the Applications Training may be performed at a later date without affecting Philips’ right to invoice for any remaining Contract Sum upon Practical Completion.
13. Complaints and Returns
For Work consisting of Supply of Goods only, the Customer shall notify Philips in writing and shall substantiate any complaints of erroneous Delivery and/or apparent damage to the Products supplied within ten (10) days after receipt of the Products including the date and number of Philips' invoice. Philips shall issue, upon acceptance of the complaint, a return authorisation notice and Customer shall return the relevant Products in accordance with Philips' instructions. All Products returned must be insured and carriage prepaid by Customer and packed in their original packing.
14. Product Warranty
Philips may provide Product-specific warranties with respect to the offered Products, as set out in Philips' quotation, or as annexed hereto. In absence of any such Product-specific warranty, and in addition to any rights and remedies the Customer may have under the Australian Consumer Law or any other law, Philips provides the warranty set out in this clause.
Philips warrants to the Customer the good quality of any hardware Products supplied, for a period of twelve (12) months as from the date of first patient use or Practical Completion whichever occurs first, but in no event for more than fifteen (15) months as from the date of Delivery, against defects which appear therein under proper use, and which arise solely from faulty materials or workmanship. This warranty does not include any vacuum articles to which a pro rata credit applies. Furthermore, this warranty is not applicable to replacement parts, hardware upgrades, consumables and other excluded items for which specific warranty conditions may apply as indicated, provided for or made accessible by Philips.
To the fullest extent permitted by law, Philips’ obligations under any product warranty are limited, at Philips’ option, to the repair or the replacement of the Product or a portion thereof, or to a refund of a portion of the purchase price paid by the Customer.
In order to claim under the warranty granted by this clause, Customer must:
(a) provide Philips at the address provided in (b) below with written notice of a Product defect during the warranty period and within ten (10) days following the discovery of the defect by the Customer;
(b) if requested by Philips, return the defective Product to Philips at 65 Epping Road, North Ryde NSW 2113, at the Customer’s sole expense.
Any refund will be paid to Customer when the defective Product or part is returned to Philips, at the above address. Any defective parts returned to Philips shall become Philips' property as soon as they have been replaced.
To the extent permitted by law, Philips’ obligations under any product warranty do not apply to any defects resulting from:
(a) improper or inadequate maintenance or calibration by the Customer or its agents;
(b) Customer or third party supplied software, interfaces, or supplies;
(c) use or operation of the Product other than in accordance with Philips’ applicable Product specifications and written instructions;
(d) abuse, negligence, accident, loss;
(e) damage in transit following installation by or on behalf of Philips;
(f) improper site preparation;
(g) unauthorised maintenance or modifications to the Product;
(h) any damage to the Product – including software – or any medical or other stored data caused by an external source regardless of its nature, including but not limited to hacking, or,
(i) viruses or similar software interference resulting from the connection of the Product to a network.
Philips does not provide a warranty for any third party products furnished to the Customer by Philips under this quotation; however, Philips shall use reasonable efforts to extend to the Customer the third party warranty for such product. To the fullest extent permitted by law, the obligations of Philips described above are Philips’ only obligations and the Customer’s sole and exclusive remedy for a breach of a Product warranty.
This warranty is only valid and enforceable in Australia.
SUBJECT ONLY TO THE NEXT SUCCEEDING PARAGRAPH THE WARRANTIES SET FORTH HEREIN OR IN PHILIPS’ WARRANTY DOCUMENT WITH RESPECT TO A PRODUCT ARE THE ONLY WARRANTIES MADE BY PHILIPS IN CONNECTION WITH THE PRODUCT, THE SOFTWARE, AND THE TRANSACTIONS CONTEMPLATED AS A RESULT OF THIS QUOTATION OR SALE, BUT ARE EXPRESSLY IN ADDITION TO ANY OTHER WARRANTIES IMPLIED OR IMPOSED BY LAW.
Nothing in this warranty shall be construed as affecting any rights the Customer may have under all the relevant laws, or Commonwealth or State legislation, which give the Customer rights which cannot be modified or excluded by agreement.
The liability of Philips for any breach of any condition or warranty implied by a relevant law or pursuant to an applicable statutory guarantee will be limited to, for Products of a kind not ordinarily acquired for personal, domestic or household use or consumption, as follows:
(a) If the breach relates to goods:
(i) the replacement of the Product or the supply of an equivalent Product;
(ii) the repair of the Product;
(iii) the payment of the cost of replacing the Product or of acquiring an equivalent Product; or
(iv) the payment of the cost of having the Product repaired.
(b) If the breach relates to services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
To the fullest extent permitted by law, all other remedies are excluded.
Clause 1 applies to the extent to which statutory guarantees under the Australian Consumer Law apply to the supply by Philips of the Products to the Customer.
13. Software and Licenses
All software is and shall remain the sole property of Philips or its software suppliers. The General Customer Software License Conditions attached hereto, form an integral part hereof, contain specific warranty arrangements with respect to any Licensed Software (as defined in the General Customer Software License Conditions).
14. Limitation of Liability
To the fullest extent permitted by law, the liability, if any, of Philips and Philips’ representatives for damages whether arising from breach of the terms in this quotation, breach of contract, warranty, negligence, indemnity, strict liability or other tort, or otherwise with respect to the Products is limited to an amount not to exceed the price of the Product giving rise to the liability.
TO THE FULLEST EXTENT PERMITTED BY LAW, PHILIPS AND PHILIPS' REPRESENTATIVES SHALL IN NO EVENT BE LIABLE TO THE CUSTOMER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR COVER, OR LOSS OF DATA, PROFIT, REVENUE OR USE, IN CONNECTION WITH OR ARISING OUT OF THESE CONDITIONS OF SALE OR ANY RESULTING AGREEMENT, OR THE FUNCTIONING OR THE CUSTOMER'S USE OF, OR INABILITY TO USE PRODUCTS, INCLUDING (EMBEDDED) SOFTWARE, OR FOR ANY LIABILITY OF THE CUSTOMER TO ANY THIRD PARTY WITH RESPECT THERETO. NEITHER PHILIPS NOR PHILIPS' SUPPLIERS SHALL BE LIABLE FOR ANY LOSS OF OR INABILITY TO USE MEDICAL OR OTHER DATA STORED IN GOODS, INCLUDING (EMBEDDED) SOFTWARE OR ON OTHER MAGNETIC MEDIA, AND NEITHER PHILIPS NOR PHILIPS' REPRESENTATIVES SHALL BE RESPONSIBLE FOR RELOADING DATA IN SUCH EVENT.
b) Infringement Claims.
If a third party makes, or attempts to make, a claim against the Customer alleging that a Philips Product delivered hereunder infringes a valid claim under a patent, utility model, industrial design, copyright, trade secret, mask work, or trademark (collectively ‘Intellectual Property Right’), the Customer shall (a) provide Philips prompt written notice of the claim, and (b) grant Philips full and complete information; and if Philips chooses in writing to defend, settle or negotiate the claim the Customer shall (i) give Philips sole control of any defence or settlement that it may undertake and (ii) provide Philips with all reasonable assistance if so desired by Philips.
Philips shall have no obligation for any claim of infringement and Customer shall reimburse all reasonable costs (including, but not limited to, attorneys fees) in case a claim arises from: (a) Philips’ compliance with the Customer’s designs, specifications, or instructions; (b) Philips’ use of technical information or technology supplied by the Customer; (c) modifications to the Product by the Customer or its agents; (d) use of the Product other than in accordance with the product specifications or applicable written product instructions; (e) use of the Product with products not manufactured by Philips if infringement would have been avoided by the use of a current unaltered release of either the Philips Product, the third party products or both. Furthermore, Philips will not be liable for any claim where the damages sought are based directly or indirectly upon the quantity or value of products or services generated by means of the Products purchased under the quotation, or based upon the amount of use of the Product regardless of whether such claim alleges the Product or its use infringes or contributes to the infringement of such claim.
In case (a) a non-appealable judgment of a competent court having jurisdiction declares the claim to be valid or (b) the Product is believed by Philips to infringe such a claim, Philips may, at its option, (i) procure the right for the Customer to continue to use the Product, (ii) replace or modify the Product to avoid infringement, or (iii) refund to the Customer a reasonable portion of the Product purchase price upon the return of the original Product.
The terms in this section state Philips’ entire obligation and liability for claims of infringement, and the Customer’s sole remedy in the event of a claim of infringement.
15. Use and Ownership of Documents
All technical information in relation to the Products and their maintenance are Philips proprietary information, covered by Philips copyrights and remain Philips' property and may not be copied, reproduced, transmitted or communicated to or utilized by third parties without Philips' prior written consent. Data such as but not limited to illustrations, catalogues, colours, drawings, dimensions, statements of weight and measurements made available as (printed) information are an approximation only and the Customer cannot derive any rights based on these data.
All Philips site planning information, architectural drawings, statements of works, and other site-specific project information produced by Philips for the purpose of planning and fulfilling the Customer’s order, is covered by Philips copyrights and remain Philips' property.
16. Export Control
Goods delivered by Philips are intended for use only in Australia. In the event of re-export, the legal export regulations of Australia and the relevant country of manufacture must be complied with. Philips must be contacted prior to export of any goods.
The validity of Philips’ quotation and any resulting contract therefrom may be subject to the granting of a governmental export licence. In the event that such licence or end-user statement is required, the Customer shall provide Philips with such document upon first written request.
In case the Delivery of Goods or services is restricted or forbidden due to (changed) export control laws, the rights and obligations of the Customer may be suspended for the estimated duration of the (changed) export control laws or the contract may be cancelled.
Each party shall maintain as confidential any information furnished or disclosed to one party by the other party, whether disclosed in writing, electronically or disclosed orally, relating to the Products and business of the disclosing party, its Customers and/or its patients, and this quotation or sale and its terms, including any pricing information. Each party shall use the same degree of care to protect the confidentiality of the disclosed information as that party uses to protect the confidentiality of its own like information, but not less than reasonable care. Each party shall disclose such information only to its employees having a need to know such information to perform the transactions contemplated by this quotation. The obligation to maintain the confidentiality of such information shall not extend to information in the public domain at the time of disclosure, and/or information that is required to be disclosed by law or by court order.
18. Force Majeure
Each party is entitled to suspend the performance of its obligations as a result of any delay or default caused by events beyond its reasonable control including, but not limited to, acts of God, war, civil war, insurrection, fires, floods, labour disputes, epidemics, governmental regulations and/or similar acts, freight embargoes, Philips’ non-availability of any permits, licenses and/or authorisations required, defaults or force majeure of suppliers or subcontractors (Force Majeure Event).
If force majeure prevents Philips from filling any order from the Customer or otherwise performing any obligation arising out of the sale, Philips shall not be liable for any compensation, reimbursement or damages whether for direct, indirect or consequential loss or otherwise.
If a party terminates the Contract as a result of a Force Majeure Event under this clause, the rights and obligations of the parties will cease; and the accrued rights or remedies of each party will not be affected.
All taxes, duties, levies and similar expenses, which are or become due in connection with our quotation, any order or agreement resulting therefrom, and the carrying out thereof are for the account of the Customer unless specifically stated otherwise in the quotation.
(a) If the Customer becomes insolvent, is unable to pay its debts when due, files for bankruptcy, is the subject of involuntary bankruptcy, has a receiver appointed, or has its assets assigned or frozen, Philips may cancel any unfulfilled obligations, or suspend performance; however, the Customer’s financial obligations to Philips shall remain in effect.
(b) The Customer may not assign any rights or obligations in connection with the transactions contemplated by this quotation or sale without the prior written consent of Philips, and any attempted assignment without such consent shall be of no force or effect.
(c) All transactions contemplated by this quotation or sale shall be governed by the laws of the State of New South Wales. The Customer and Philips shall submit any dispute that cannot be solved amicably to the exclusive jurisdiction of the courts of New South Wales.
(d) The terms and conditions in this quotation or sale constitute the entire understanding and agreement by and between the parties with respect to the transactions contemplated by this quotation or sale, and supersede any previous understandings or agreements between the parties whether written or oral regarding the transactions contemplated by this quotation or sale. The pricing in this quotation or sale is based upon the terms and conditions in this quotation or sale. No additional terms, conditions, consents, waivers, alterations, or modifications shall be binding unless in writing and signed by the parties. The Customer’s submission of a purchase order shall evidence the Customer’s agreement to these terms and conditions.
(e) The headings in these Conditions of Sale are intended for convenience only, and shall not be used to interpret the content of the clauses as set out herein.
(f) If any provision of these Conditions of Sale is deemed to be illegal, unenforceable, or invalid, in whole or in part, the validity and enforceability of the remaining provisions shall not be affected or impaired, and shall continue in full force and effect. In substitution for any such provision deemed to be illegal, unenforceable, or invalid, in whole or in part, a provision reflecting the original intent hereto to the extent permissible under applicable law shall be deemed to substitute said provision.
(g) Notices or other communications shall be in writing, and shall be deemed served if delivered personally, or if sent by facsimile transmission, by overnight mail or courier, or by certified mail, return receipt requested and addressed to the relevant party.
(h) The failure of the Customer or of Philips at any time to require the performance of any obligation will not affect the right to require such performance at any time thereafter. The course of dealing, course of performance, course of conduct, prior dealings, usage of trade, community standards, industry standards, and customary standards and customary practice or interpretation in matters involving the sale, delivery, installation, use, or service of similar or dissimilar products or services shall not serve as references in interpreting the terms and conditions of these Conditions of Sale.
(i) Philips shall have the right at any time to assign or novate to a related company within the meaning of the Corporations Act all of its rights and obligations arising under any agreement or otherwise in connection with the transactions contemplated by this quotation or sale without requiring the prior written consent of the Customer.
(j) The Customer’s obligations are independent of any other obligations the Customer may have under any other agreement, contract, or account with Philips. The Customer will not exercise any right of offset in connection with the terms and conditions in this quotation or sale, or in connection with any other agreement, contract, or account with Philips.
GENERAL CUSTOMER SOFTWARE LICENSE AGREEMENT (‘License’)
This License is entered into by and between Philips Healthcare a sector of Philips Electronics Australia Limited of 65 Epping Road, North Ryde NSW 2113 Australia ABN 24 008 445 743 (‘Philips’) and each customer who is a Customer of Philips’ software (‘Licensee’), and is entered into as part of the sale of certain products identified on the face of this quotation or sales document attached to this License. This License does not supersede or replace any terms of the quotation or sales agreement and any document attached to or part of the quotation or sales agreement, or support agreements applicable to the products.
Philips has not authorized any employee or agent to grant any licenses other than as set forth herein or other rights with respect to any patent application, patent, copyright, trademark, trade secret, proprietary right, or other property right of Philips or any of its suppliers.
1.1 Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
1.2 The rights and remedies contained in this clause 1 are limited to the extent that the Australian Consumer Law applies. You may not be entitled to remedies under the Australian Consumer Law as it may not apply to You.
The following terms used hereinafter shall have the meaning set forth below:
A. ‘Affiliate’ means, with respect to Philips, any entity which controls, is controlled by or under common control with Koninklijke Philips Electronics N.V. of The Netherlands.
B. ‘Agreement’: means the sales/lease/supply agreement, based on which a right and license to use software in the Products is provided by Philips to the Licensee on the basis of these General Customer Software License Conditions (‘License’)
C. ‘Designated Hardware’: means the medical hardware as supplied by Philips, with which the Licensed Software is designed to work.
D. ‘Functional Specification’: means the description of functionality of a specific software product, version, update, upgrade or option, as described by Philips.
E. ‘Identified Software’ means Publicly Available Software and, without limitation, any other software which is licensed pursuant to terms that (1) create, or purport to create, obligations for Philips, its Affiliates or its suppliers with respect to the Licensed Software or any other software furnished with any Designated Product or other Philips product or which is a derivative work of the Licensed Software or such other software, or (2) grant, or purport to grant, to any third party any rights or immunities under Philips’, its Affiliates’ or its suppliers’ intellectual property or proprietary rights in such software, the Designated Product or other Philips product or any derivative work of the above mentioned software.
F. ‘Licensed Software’: means the computer programs provided pursuant to the Agreement to be operated on the Designated Hardware (as defined hereinafter) covering application, system and test functions, furnished on magnetic or fixed media, including the supporting documentation necessary to effectively use the computer programs. Test functions are understood to cover measurement to verify that the Products are in good working condition, but excluding any further diagnostic functions such as but not limited to troubleshooting and verification after repair. This License does not extend to any maintenance or service software shipped (separately or with the Product) to or located at Licensee’s premises which is intended to assist Philips’ employees or agents in the installation, testing, service, and maintenance of the Product.
G. ‘Licensor’: means Philips.
H. ‘Publicly Available Software’ means any software that requires as a condition of use, modification and/or distribution of such software that other software incorporated into, derived from or distributed with such software be (1) disclosed or distributed in source code form; (2) be licensed for the purpose of making derivative works; or (3) be redistributable at no charge .
(a) Upon taking the Licensed Software in operation, and subject to fulfillment of the terms and conditions contained herein, Licensor grants to Licensee a personal non-transferable and non-exclusive right, without the right to sublicense, to use the Licensed Software in connection with the operation of the Designated Hardware.
(b) Unless otherwise agreed between the parties, the Licensed Software shall be installed by Licensor or by its authorized agents. Licensee undertakes not to use the Licensed Software or cause or allow the Licensed Software to be used prior to the execution of the customer acceptance certificate.
(c) The Licensed Software shall be used only on the Designated Hardware and at the site of the Licensee specified in the Agreement, unless it pertains to a mobile system. A separate license is required per each Designated Hardware or central processing unit on which the Licensed Software is to be used.
(d) The Licensee shall use the Licensed Software only for the purpose(s) agreed to and shall not rent, electronically distribute or timeshare the Licensed Software or market it by interactive means or remote processing services or otherwise distribute or allow access to the Licensed Software other than specified herein or set out in the Agreement.
(e) Licensee acknowledges and agrees that the Licensed Software may include or incorporate technology owned or certified by Licensor suppliers (‘Embedded Software’) and that this License does not convey a license or imply a right under any patent, copyright, trade secret, or other intellectual property right of any such Licensor suppliers to use the Embedded Software so incorporated. If so required by such supplier(s), Licensee agrees to obtain a separate license from such supplier(s).
(f) Licensee shall hold Licensor harmless from any liability arising out of any unauthorized use of the Licensed Software.
(g) Except as expressly set out herein, no other rights in and to the Licensed Software or any other intellectual property right of Philips are granted to the Licensee pursuant to this License.
4. License Fee
The license fee shall be specified in the Agreement either separately or as part of the price of the Products.
(a) The Licensed Software, including any copies thereof and any Intellectual Property Rights related thereto, shall at all times remain the sole and exclusive property of Licensor and Licensor's suppliers, even if the Licensed Software was developed by or on behalf of Licensor, specifically for use by the Licensee.
(b) Licensee acknowledges that the Licensed Software is unique to the Designated Hardware configuration and expressly assumes the risks associated with any unauthorized use or attempt to use the Licensed Software on equipment other than the Designated Hardware.
(c) Licensee may copy or have one copy available in machine readable form for backup/archival purposes only as is necessary to support Licensee's own use of the Licensed Software on the Designated Hardware. Licensee agrees not to copy or otherwise reproduce the Licensed Software or any part thereof for other purposes without prior written authorization from Licensor. In as far as copying is allowed under this License, Licensee shall not erase, delete or otherwise remove Licensor or Licensor's supplier(s) copyright notice(s) and other proprietary legend(s), if any, contained on the Licensed Software to such reproductions or copies. All restrictions in this License relating to the use and disclosure of the Licensed Software shall apply to any such reproduction or copies of the Licensed Software.
(d) The Licensed Software (other than documentation) is to be used in machine readable form only.
(e) Licensee shall not cause or permit the Licensed Software, or any part thereof, to be used by any person other than either Licensor's service personnel or the officers, employees, and agents of Licensee engaged in the activities of Licensee. Licensee agrees that it shall cause each authorized person who uses the Licensed Software to adhere to the terms and conditions as contained herein.
(f) If Licensee uses the Licensed Software to access or utilize the services or functionality of Microsoft's Windows NT Server (all editions or successor versions) or similar software or uses the Licensed Software to permit workstation or computing devices to access or utilize the services or functionality of Microsoft's NT Server or similar software, Licensee may be required (i) through Philips to obtain a Client Access License for the Licensed Software and/or each such workstation or computing device from Microsoft, or (ii) to obtain - in the event similar software is used – the necessary license from the relevant third party for each such workstation or computing device.
6. Modifications, Improvements and Publicly Available Software Prohibitions
(a) Licensee is not allowed to modify, unlock, arrange, adapt, correct errors, translate, reverse engineer, decompile, disassemble, or otherwise translate the binary or object code versions of the Licensed Software to human perceivable form, or to cause or permit such activities. Licensee is further not allowed to create derivative works based on the Licensed Software or have such work carried out without the prior written consent of Licensor. Information necessary to achieve interoperability of the Licensed Software with other software shall be obtained only from Licensor against then prevailing standard terms and conditions and at Licensor's sole option.
(b) If the Licensed Software is modified in any manner by a third party, or is combined with software or equipment not supplied and/or approved in writing by Licensor, all warranties associated with the Licensed Software and Designated Hardware shall become null and void as from the moment of such modification. If nevertheless Licensee or any of its officers, employees or agents either (i) devise or acquire any improvements in the Licensed Software, or (ii) suggest or recommend to Philips any improvements, then such improvements and such information shall be disclosed in writing and a non-exclusive, world-wide, royalty-free license shall be offered to Licensor in writing. In case Licensor accepts such offer either in whole or in part by explicit written acceptance, Licensor agrees to grant to Licensee a non-exclusive, world-wide, royalty-free license to any further improvements Licensor makes to any such improvement made by Licensee.
(c) Licensor may create and license updated and improved versions of the Licensed Software from time to time. Licensor may make available such updated and improved versions of the Licensed Software to Licensee at Licensor's then current published rates and subject to the terms and conditions of Licensor's then applicable software license conditions.
(d) Licensor may make available maintenance of the Licensed Software to Licensee at Licensor's published rates and subject to the terms and conditions of Licensor's then applicable software maintenance/customer support agreement.
(e) Licensor has no obligation to furnish any assistance, support, maintenance, or new versions, except if and to the extent Licensor has explicitly agreed thereto in writing.
(f) Notwithstanding any other provision of this License, the rights granted to Licensee under this License are conditioned upon Licensee complying with the following limitations: Licensee shall not perform any action in a manner that would require any Licensed Software or any other software furnished with a Designated Product or other Philips product or which is a derivative work of the Licensed Software or such other software to be licensed as Publicly Available Software. Such acts include, without limitation:
(i) incorporating Identified Software into any such software or product;
(ii) combining Identified Software with any such software or product;
(iii) distributing Identified Software in conjunction with any such software or product; or
(iv) using Identified Software in the development of a derivative work of any such software or product.
(g) Licensee shall indemnify Philips and its Affiliates against and hold Philips and its Affiliates harmless from any damage or costs arising from or in connection with any violation or breach of the provisions of this Article 5 and Licensee shall reimburse all costs and expenses incurred by Philips and/or its Affiliates in defending any claim, demand, suit or proceeding arising from or in connection with such violation or breach.
7. Term and Termination
This License shall continue for as long as Licensee utilizes the Designated Hardware/System(s), except that Licensor may terminate this License forthwith without the need for judicial action, in the event of any breach by Licensee of any term, covenant, or condition contained herein, provided Licensor has given Licensee a written notice specifying such breach and Licensee has failed to remedy such breach within fifteen (15) days from the date of such notice or within such longer period as may be specified in said notice. Such termination shall not relieve Licensee of any of its obligations incurred prior to such termination, and shall not impair any of Licensor's rights which have accrued prior to such date. Licensee shall remove the Licensed Software from the Designated Hardware and return the Licensed Software and any copies thereof and documentation relating thereto to Licensor at Licensee's expense immediately upon the termination of this License. Upon such return Licensee shall certify to Licensor that it does not, directly or indirectly, wholly or partly, retain or possess Licensed Software, or parts thereof.
8. Intellectual Property Right (‘IPR’) Infringement Indemnification
In the event a third party makes, or attempts to make, a claim against Licensee alleging that the Licensed Software provided hereunder infringes a valid claim under a patent, utility model, industrial design, copyright, trade secret, mask work, or trademark (collectively ‘IPR’), Licensee shall (a) provide Licensor prompt written notice of the claim, and (b) grant Licensor full and complete information with regard to such claim; and if Licensor chooses in writing to defend, settle or negotiate the claim Licensee shall (i) give Licensor sole control of any defense or settlement that it may undertake and (ii) provide Licensor with all reasonable assistance if so desired by Licensor.
In case (a) a non-appealable judgment of a competent court having jurisdiction declares the claim to be valid or (b) the Licensed Software is believed by Licensor to infringe such a claim, Licensor may, at its option, either (a) secure Licensee's right to continue using the Licensed Software, (b) replace or modify the Licensed Software to make it free of such infringement so long as such replacement or modification does not materially affect the total functionality of the Licensed Software, or (c) if neither of the foregoing alternatives is available on commercially reasonable terms to Licensor, accept return of such Licensed Software and, after deduction of a reasonable charge for the time Licensee did make use of the Licensed Software, refund to Licensee the fee specified in section 4, paid by Licensee for the Licensed Software so returned. If Licensor provides any of the options set forth above, Licensor's indemnity obligation hereunder shall be entirely fulfilled as to that individual claim.
Licensor shall have no obligation for any claim of infringement and Licensee shall reimburse all reasonable costs (including, but not limited to, attorneys fees) in case a claim arises from (i) any settlement or compromise made by Licensee without Licensor's prior written consent, (ii) use by Licensee of the Licensed Software, when use of a later version which Licensor has commercially made available would have avoided such infringement, (iii) use or combination of the Licensed Software with software or equipment not supplied by Licensor, where without combination the Licensed Software would not have been infringing, (iv) use of the Licensed Software in a manner or for a purpose for which it was not designed as set forth in the applicable Product documentation, (v) Licensor's compliance with Licensee's particular design, specifications and/or instructions, (vi) Licensor's use of technical information or technology provided by the Licensee, (vii) modifications neither made by Licensor nor approved by Licensor, or (viii) Licensee not following Licensor's normal recommended hardware and software maintenance schedules and instructions and/or not implementing mandatory (safety) actions (FCO implementation). Furthermore, Licensor will not be liable for any claim where the damages sought are based directly or indirectly upon the quantity or value of products or services generated by means of the Products purchased under the quotation, or based upon the amount of use of the Products regardless of whether such claim alleges the Products or its use infringes or contributes to the infringement of such claim.
The indemnities and obligations of Licensor in this Section 8 shall apply to third party software only to the extent Licensor, pursuant to its license agreement or purchase agreement with such third party, is entitled to indemnification for such infringements.
THE FOREGOING STATES THE ENTIRE LIABILITY OF PHILIPS WITH RESPECT TO INFRINGEMENT OF ANY IPR BY THE LICENSED SOFTWARE OR ANY PARTS THEREOF.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE WARRANTIES SET FORTH HEREIN OR IN PHILIPS’ WARRANTY DOCUMENT WITH RESPECT TO A PRODUCT (INCLUDING THE LICENSED SOFTWARE PROVIDED WITH ANY DESIGNATED PRODUCT OR OTHER PRODUCT) ARE THE ONLY WARRANTIES MADE BY PHILIPS IN CONNECTION WITH SUCH PRODUCT AND THE LICENSED SOFTWARE AND THE TRANSACTION CONTEMPLATED BY THE QUOTATION OR CONDITIONS OF SALE ATTACHED TO THIS LICENSE.
Philips provides specific warranties with respect to the offered Licensed Software, as set out in Philips’ quotation, or as annexed hereto. In the absence of any specific warranty for the Licensed Software, Philips warrants that during a period of ninety (90) days after the Licensed Software has been made available to the Licensor (‘Warranty Period’) that the Licensed Software will conform substantially to the applicable functional specifications which are in effect on the date of the License and which may be furnished to Licensee.
In order to claim under the warranty granted by this clause, Licensee must, during the Warranty Period, notify Licensor of the nonconformity in writing at 65 Epping Road, North Ryde NSW 2113 within ten (10) days of discovery giving full details of such nonconformity.
If such nonconformity is a critical error in the then current version of the Licensed Software, and Licensor is able to reproduce the nonconformity, then Licensor shall at its option, and at its expense, endeavor to correct the nonconformity, either by replacement, work around, or by modification of the Licensed Software. If, after the expenditure of reasonable efforts, Licensor is unable to correct the non-compliance, Licensor may refund a reasonable portion or the entire purchase price for the Licensed Software.
To the fullest extent permitted by law:
a. Philips does not represent or warrant that the functions contained in the licensed software will meet licensee's requirements or that the operation of licensed software will be uninterrupted or error-free;
b. except as expressly provided in these General Customer Software License Conditions, neither Philips nor any other person or entity retaining rights in the Licensed Software or Intellectual Property used by Philips in the Licensed Software will have any obligation or be liable for any bug, error, omission, defect, deficiency or non-conformity in the Licensed Software;
c. Philips makes no representation or warranty with respect to the way in which software functions are executed;
d. Philips does not warrant that the media used on the hardware will be compatible with or perform on any other hardware component;
e. Philips further grants no warranty as to defects that appear in the Licensed Software due to one or more of the reasons specified in section 6 hereinabove; and
f. in no event shall Philips be liable for any indirect, incidental, special, punitive or consequential damages, which includes, without limitation, lost turnover, lost profits, lost medical data or other data, or inability to use the licensed software arising out of the use or operation of the Licensed Software breach of contract warranty, negligence, indemnity, strict liability or other tort or otherwise.
Nothing in this warranty shall be construed as affecting any rights the Licensee may have under all the relevant laws, or Commonwealth or State legislation, which give the Licensee rights which can not be modified or excluded by agreement.
This warranty is provided in addition to other rights and remedies of a consumer under a law in relation to the goods to which the warranty relates.
The liability of Philips for any breach of any condition or warranty implied by a relevant law or pursuant to an applicable statutory guarantee will be limited to, for Licensed Software not ordinarily acquired for personal, domestic or household purposes, as follows:
(a) the replacement of the Licensed Software or the supply of equivalent Licensed Software;
(b) the repair of the Licensed Software;
(c) the payment of the cost of replacing the Licensed Software or of acquiring an equivalent Licensed Software; or
(d) the payment of the cost of having the Licensed Software repaired.
To the fullest extent permitted by law, all other remedies are excluded.
Clause 1 applies to the extent to which statutory guarantees under the Australian Consumer Law apply to the supply by Philips of the Licensed Software to the Customer.
The warranty and service obligations of Licensor herein shall apply to third party software only to the extent Licensor, pursuant to its license agreement or purchase agreement with such third party, is entitled to corresponding warranty and service remedies.
Notwithstanding paragraphs 7 and 8 hereinabove, the Licensee expressly waives all claims against Licensor and agrees to hold Licensor harmless from any liability arising from the use of the Licensed Software, unless Licensee proves that such liability is solely attributable to the gross negligence or willful intent of Licensor.
(a) This License constitutes the entire agreement between Licensor and Licensee with respect to the subject matter and Licensor shall not be liable to Licensee for loss arising from or in connection with any representations, agreements, statements or undertakings made prior to the date of the License. A copy of this License must be available for Licensor's inspection during normal working hours at the site specified therein.
(b) No modification of this License shall be valid unless in writing and signed by duly authorized representatives of both of the parties.
(c) Licensee is not entitled to assign the License or any right hereunder to any other person or entity. Licensor may, however, delegate the exercise of rights and the performance of one or more of its obligations under this License to its affiliated companies and authorized agents, provided that Licensor shall remain responsible for ensuring that such obligations are performed in accordance with the provisions of this License.
(d) Licensor will offer a software license to any bona fide Customer of the Designated Hardware/System on which the Licensed Software is running (‘Secondary Customer’) pursuant to the then current Licensor's charges, terms and conditions. Due to Licensor's need to protect its proprietary information, Licensor reserves the right not to license the Licensed Software to any Secondary Customer, if such Secondary Customer is deemed by Licensor to be a competitor of Licensor. Upon any sale of the Designated Hardware/System to a Secondary Customer and approval of the Secondary Customer, Licensor will de-install such Designated Hardware at Licensor’s then prevailing rates and re-install such Designated Hardware for the Secondary Customer, but only after such Secondary Customer has agreed to the required Licensor software licensing conditions
(e) In connection with Embedded Software in which one or more suppliers retains rights, the provisions contained herein shall also be for the benefit of these supplier(s). Licensee agrees to indemnify Licensor for any claim by supplier(s) which arises out of Licensee's breach of this License.
Licensee acknowledges that part of the Licensed Software is of US origin and agrees to comply with all applicable international laws that apply to the Licensed Software, including the US Export Administration Regulations, as well as end-user, end use and country destination restrictions issued by US or other governments, if applicable.
(f) DISCLAIMER ON JAVA SUPPORT. THE LICENSEE ACKNOWLEDGES AND AGREES THAT THE LICENSED SOFTWARE MAY CONTAIN SUPPORT FOR PROGRAMS WRITTEN IN JAVA. JAVA TECHNOLOGY IS NOT FAULT - TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE AS ONLINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE IN WHICH THE FAILURE OF JAVA TECHNOLOGY COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING, BY WAY OF EXAMPLE ANDWITHOUT LIMITATION, IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPON SYSTEMS.
(g) This General Customer Software License Agreement shall be considered as having been signed and entered into in the State of New South Wales and this General Customer Software License Agreement shall be governed solely by the laws of the State of New South Wales. The parties hereto agree that the courts located in the State of New South Wales shall have exclusive jurisdiction over any and all disputes arising hereunder which the parties are unable to resolve through negotiation within thirty days.
End of License Agreement.