1. Initial Provisions
1.1 The Customer hereby represents that it is acquiring the Product from Philips for its own use and does not intend to resell the Product or its medical equipment or software.
1.2 The Price is net of any taxes, including, but not limited to, value added tax, sales tax, excise tax, and similar import and export duties, fees and taxes. All taxes on the Product will be borne by the Customer
1.3 The Customer shall be responsible for the importation of the Products into the country of destination subject to obtaining the necessary authorizations, admissions and licenses to import, install and operate the Products
1.4 All documents and manuals related to the Product shall be delivered by Philips to the Customer and shall be written in English and shall contain all user-oriented information required by the regulations and laws of the country the Product is delivered to
2. Quotation and Order
2.1 Any Quotation on the Product will be open for acceptance within the validity period indicated in the Specific Conditions and may be amended or revoked by Philips prior to Customer's acceptance.
2.2 Purchase orders, whether or not arising from a Quotation, are subject to written confirmation from Philips. Any terms and conditions set forth in the Customer's purchase order or otherwise issued by the Customer will be rejected and will not apply to the sale of the Product, unless it is clearly stated in the Quotation.
2.3 Unless otherwise specified in the Quotation, Philips will send an invoice to the Customer, and the Customer shall pay it immediately under the Specific Conditions. Orders are subject to Philips ongoing credit review and approval.
2.4 The Customer will have the option to make the payment by means of a documentary, confirmed, divisible, irrevocable letter of credit in a manner acceptable to Philips, payable in cash with the shipping documents, confirmed by a first-class bank accepted by Philips and open for the benefit of Philips, or by any other means as Philips may authorize in writing. The letter of credit shall be valid for at least six (6) months from the date it was issued, the letter of credit shall allow partial shipments and shall be valid for at least thirty (30) days for submission. The Customer shall pay all bank charges outside the country in which the recipient Bank is located. If the Customer requests the shipment to be made in a different manner from the agreed delivery terms, the letter of credit shall be increased with a sufficient amount to pay additional shipping costs, if any.
2.5 Interest will apply to any late payments, at the maximum interest rate permitted in the Customer´s country. In the event the Customer fails to pay any amounts due, Philips will be entitled to cease the performance of the service, the delivery of the Product and any related services, or to deduct the unpaid amount from any amounts payable by Philips to the Customer, in addition to any other rights or remedies available to Philips. In addition, Philips or its designated representative may, without prior notice to the Customer, enter any facilities in which the Product may be found to render it inoperable or remove it by retaining and selling it in accordance with applicable law. In any action commenced for the Customer to make payments, Philips shall be entitled to recover all costs and expenses, including reasonable attorneys' fees related to such action.
2.6 If the Customer cancels an order prior to the delivery of the Product and the Customer has the legal right to do so, the Customer shall pay any costs incurred by Philips up to the date of cancellation, including, but not limited to, manufacturing costs for the Product, any training, educational services or other services provided to the Customer in connection with the order, a nominal resupply fee and the costs for returning or canceling any Product ordered from a third party. In other cases of cancellation, the agreed Price shall remain as due and payable.
3. Retention of title until full payment
3.1 The title to the Product shall remain vested in Philips until the full payment of the Price by the Customer Provided That title to any software provided shall remain vested in Philips or such third party as identified by Philips.
4. Technical changes; obsolescence of the Product
4.1 Philips shall be entitled to make changes to the design or specifications of the Product at any time, provided that such change does not adversely affect the performance of the Product. During the validity period of a Quotation, the Product may become obsolete. In this situation, Philips will make efforts, but without any liability obligation, to substitute it with a similar Product with similar price.
5. Shipment and delivery date
5.1 Philips will make efforts, but will not be liable, to meet any delivery dates that may have been quoted or confirmed. If Philips is unable to comply with the dates, no penalties will apply to Philips. In case it is necessary to store the Product, due to reasons attributable to the Customer, the reasonable expenses for that, will be for the account of the Customer. The warehouse receipts will replace the shipping documents, and the Customer hereby agrees to reimburse Philips, within fourteen (14) days from Philips’ first request, any and all expenses.
5.2 The estimated time for shipment and/or completion of the installation work will be calculated from the date on which the advance payment has been received or, if applicable, the date that the bank confirms the letter of credit and/or other payment instrument in accordance with this Agreement.
5.3 If the delivery is delayed due to the Customer for more than fourteen (14) days, the Customer shall pay the full Product Price immediately to Philips.
6.1 If installation of the Product will be performed by Philips, the Customer shall be responsible for:
(a) Providing adequate and protected storage for the Product at or near the installation site in order to ensure protection against theft and any damage or deterioration. Any item that may be lost or damaged during the storage period must be repaired or replaced at the Customer’s expense.
(b) Making available, at the installation site or nearby, appropriate and protected rooms equipped with sanitary facilities for the installation team and for the storage of their tools and instruments.
(c) Carrying out and completing the preparation work in a timely manner in accordance with any requirements that Philips may provide the Customer upon reasonable notice. The site preparation shall be in compliance with all relevant safety, electrical, and building codes for the Product and its installation. The sufficiency of such plans and specifications shall be the sole responsibility of the Customer. Philips shall have access to the installation site in a timely manner to begin the installation work on the scheduled date.
(d) Properly removing and disposing of any hazardous material prior to the installation by Philips.
(e) Providing the permits and licenses required by the relevant authorities for or in connection with the installation and operation of the Product.
(f) Adequate provision of all visas, entrances, exits, residence, work or any other necessary authorization for the Philips team and for the import and export of tools, equipment, products and materials required for subsequent installation and testing work.
(g) Giving Philips assistance in the handling of the Product from its entrance to the premises to the installation site. The Customer shall, at its expenses, be responsible for handling, removing partitions or other obstacles and restoration work.
6.2 If the Product is connected to a computer network, the Customer shall be responsible for the network security.
6.3 If any of the above conditions is not properly fulfilled, and Philips is required to discontinue the installation and subsequent testing, the completion period for the installation will be extended, and any and all resulting costs shall be the Customer's responsibility, in which case Philips shall not have any responsibility for such event.
7.1 If Philips has completed the installation of the Product, Philips shall notify the Customer for the Customer to participate in the tests and confirm, by signing a certificate, the acceptance of the Product and compliance with the agreed specifications.
7.2 In case of absence of the Customer’s representative, the Philips technical team shall start the tests according to the Philips’ standard testing procedures and such tests shall be considered as performed. In such case the acceptance shall be based on the results indicated in the test certificate signed by Philips.
7.3 In case of rejection of the Product, the Customer shall submit the reasons to Philips in a detailed written form within ten (10) days from the completion of the acceptance tests, and Philips shall, as a sole remedy, correct such failures to meet the manufacturer’s specifications as soon as practicable, the relevant steps of the acceptance test shall be repeated within a reasonable time.
7.4 If, within ten (10) days from the completion of the acceptance test, Philips has not received the signed certificate of acceptance by the Customer or a rejection report with the justified reasons, or from the start of the operational use, the installed Product will be considered as accepted by the Customer.
7.5 In case the Customer starts making clinical use of the Product, this will also be considered as a confirmation of acceptance by the Customer.
7.6 Minor defects or deviations that do not affect the operational use of the installed Product may be stated on the certificate of acceptance, but shall not prevent acceptance, Philips shall be obligated to remedy such defects that do not meet the manufacturer’s specifications as soon as practicable.
8. Complaints and returns
8.1 Customer shall notify Philips in writing substantiating its complaints within ten (10) days from its receipt of the Product, including the Philips’ invoice date and number. If Philips accepts the claim as valid, Philips shall issue a return authorization notice and the Customer shall return the Product. Each returned Product shall be packed in its original packaging, with insurance and transportation paid by the Customer.
9. Product warranty
9.1 In the absence of any specific product warranty, Philips warrants to the Customer that any hardware Product will be of good quality, for a period of one year from the date of the Customer’s acceptance or use on the first patient, whichever occurs first, but, under any circumstances, no more than fifteen (15) months from the date of shipment, provided that the Product has been subject to proper use and maintenance. Vacuum items, including, but not limited to, X-ray tubes, camera tubes and image intensifiers, by their nature, have a different period of life. Therefore, these items shall be subject to payment by the Customer considering the applicable pro rata usage or lapsed time criteria, in accordance with Philips Warranty Condition for each item. In addition, this warranty does not apply to spare parts, hardware upgrades, and/or consumables to which specific warranty conditions apply.
9.2 Any warranty for the Product shall be made on the condition that Philips receives written notice of the defect during the warranty period within ten (10) days from the Customer discovering the defect and, if required, the Product or the defective parts shall be returned to an address or location stated by Philips. Such defective parts shall be the property of Philips right after their replacement.
9.3 The Philips’ warranty obligations for the Product shall be limited, at the discretion of Philips, to the repair or replacement of the Product or any part thereof, in which case the spare parts shall be new or equivalent to new in performance, or to the refund of a pro rata portion of the purchase Price paid by the Customer.
9.4 The Philips’ obligations under the terms of any warranty of the Product shall not apply to any defects resulting from:
(a) improper or unsuitable maintenance, configuration or calibration by the Customer or its agents;
(b) Software, interfaces or supplies provided by the Customer or third parties;
(c) use, operation, modification or maintenance of the Product not in accordance with the Product specifications and the applicable written instructions of Philips;
(d) abuse, negligence, accident, loss;
(e) damage in transit;
(f) improper site preparation;
(g) unauthorized maintenance or modification to the Product, including any unauthorized hardware and software connection;
(h) any damage to the Product or any medical data or other data stored, caused by an external source, regardless of its nature, including, but not limited to, (i) invasion; or (ii) improper or incomplete application of the Philips’ product safety instructions by the Customer and/or (iii) viruses or similar software interference resulting from the connection of the Product to a network or use of removable devices.
9.5 Philips is not responsible for the warranty for the third-party product provided by Philips to the Customer. However, if Philips, under its license agreement or purchase agreement with such third party, has right to warranties and service solutions, Philips shall make reasonable efforts to extend to the Customer the third-party warranty and service solutions for such Product.
9.6 During the applicable warranty and any customer service period agreed hereunder, if any, Customer shall provide Philips at each site with a dedicated high-speed broadband internet connection suitable to establish a remote connection to the Product and to facilitate the realization of the required remote infrastructure in order for Philips to provide remote servicing of the Product by:
- supporting the installation of a Philips approved router (or a Custom
er-owned router acceptable for Philips) for connection to the Product and Customer network (which router remains Philips property if it is provided by Philips and is only provided during the term of this Agreement);
- maintaining a secure location for hardware to connect the Product to the Philips Remote Service Data Center (PRSDC);
- providing and maintaining a free IP address within the site network to be used to connect the Product to the Customer’s network;
- maintaining the so established connection throughout the applicable warranty and customer service period (including restraining from any temporary disconnection or disabling of such connection); and
- facilitating the reconnection to Philips in case any temporary disconnection occurs.
If Customer fails to provide the access described in this section and the Product is not connected to the PRSDC (including any temporary disconnection), Customer accepts responsibility for any related impact on Product availability, additional cost and speed of resolution.
10. Limitation of Liability
10.1 Philips’ liability for damages arising out of breach of this Agreement, warranty, indemnity, negligence, unlawful act or otherwise in connection with the Product and this Agreement is limited to an amount not exceeding the Price of the Product.
10.2 Neither Philips nor its representatives shall be liable in any way for any indirect, consequential, incidental, special and/or punitive damages, and/or for any damages for loss of data, profits, revenue or use in connection with or arising out of this Agreement or any resulting agreement or the operation or use by or the Customer’s inability to use the Product, or for any liability of the Customer to third parties in connection therewith. Neither Philips nor Philips’ suppliers shall be liable for any loss or inability to use medical or other data stored on or by the Products, including software (embedded) or other magnetic media, and neither Philips nor its representatives shall be liable for reloading the data in this case.
10.3 Nothing contained in this Agreement shall be deemed or construed to exclude or limit the liability of either party in respect of death or personal injury arising out of the negligence of that party or any other liability which may not, under the applicable law, be excluded or limited.
11. Infringement of Intellectual Property Rights to the Product
11.1 If there is a claim against the Customer (“Licensee”) claiming that the Product, including but not limited to Licensed Software infringes a valid Intellectual Property Right (IPR) claim of any kind, the Licensee shall (a) immediately notify Philips of the claim, (b) provide all information about the claim. If Philips decides to conduct the defence or settlement of the claim, the Licensee shall (i) grant Philips sole control over the claim and (ii) provide all necessary support.
11.2 If (a) a non-appealable judgment rendered by a court of competent jurisdiction determines that such claim is valid or (b) the Product infringes such claim, Philips may, at its sole discretion, (a) procure for the Licensee the right to continue using the Product and/or relevant Licensed Software, (b) replace or modify the Product and/or Licensed Software to make it free from such infringement only if this action does not affect the full functionality of the Product or Software, or (c) accept the return of the Product and/or Licensed Software, and, after the deduction of a reasonable fee for the time the Licensee had been using the Product and/or Licensed Software, it shall reimburse the Licensee for a specified fee paid by the Licensee for the returned Product and/or Licensed Software. If Philips exercises any of the above options, its indemnification obligation will be fulfilled.
11.3 Philips shall have no obligation in connection with any claim of infringement and the Licensee shall reimburse all reasonable costs in the event of a claim of (i) any agreement or commitment made by the Licensee without the prior written consent of Philips, (ii) the Licensee’s use of an outdated version of the Licensed Software if the new version available prevents such infringement, or (iii) use or combination of the Product and/or Licensed Software with products not provided by Philips, where, without any combination, the Product and/or Licensed Software would not be in infringement, (iv) use of the Product and/or Licensed Software in breach of the applicable documentation for the Product, (v) Philips’ compliance with the Licensee’s design, specifications and/or instructions, or (vi) Philips’ use of technical information or technology provided by the Licensee, (vii) unauthorized modifications made by the Licensee, or, (viii) failure by the Licensee to follow the Philips’ hardware and software maintenance schedules and recommended instructions for and/or implement mandatory (safety) actions (FCO implementation). In addition, Philips shall not be liable for any claims where the damages are based directly or indirectly on the quantity or value of the products or services as generated through the Product purchased under the Quotation or based on the quantity of use of the Product regardless of such claim.
12. Use and exclusivity of Product documents
12.1 All technical information related to the Product and its maintenance is the proprietary information of Philips, covered by Philips’ copyright, and remains in the property of Philips, and as such it shall not be copied, reproduced, transmitted or disclosed to or used by third parties without the prior written consent of Philips. Data including, but not limited to, illustrations, catalogs, colors, drawings, dimensions, weight declarations and measurements made available as (printed) information are only an approximation and the Customer will not have any rights based on such data.
13. Export Control and Product Resale
13.1 The supply, export or transfer of the Product or the provision of installation, maintenance, technical assistance, training, investment, financing or brokering services may be subject to export control laws and regulations, including, but not limited to, those from the UN, OSCE, the EU and the USA, which prohibit or restrict the export or deviation of certain products, technologies and services to certain countries (hereinafter “Export Regulations”). If the delivery of the Product, technology or services is subject to the granting of an export or import license by a government or is otherwise restricted or prohibited by Export Regulations, Philips may suspend its obligations to the Customer until such license is granted or for the duration of the restriction or prohibition. If no license can be obtained, or if the prohibition restriction remains, Philips may not proceed with the relevant request without being liable to the Customer.
13.2 The Customer shall comply in all respects with the Export Regulations and any applicable export license for the supply of the Product or provision of services. The Customer shall impose all export control restrictions on third parties if the Product is transferred or re-exported to third parties. The Customer shall take all reasonable steps to ensure that no purchaser violates the Export Regulations. The Customer shall indemnify Philips for any and all direct, indirect and punitive damages, losses, costs (including attorneys’ fees and costs) and other liabilities arising out of breach or non-compliance with this Clause.
13.3 The Customer shall notify Philips in writing of any resale or (re)export of the Product in order to comply with the Export Regulations and any other regulatory responsibilities governing the sale of the Product, including, but not limited to, medical device traceability requirements, that may apply to Philips.
14. Software License Terms
Designated Hardware is the hardware provided by Philips which the Licensed Software is designed to operate.
Licensed Software is the software in object code and all copies thereof to be operated on the Designated Hardware, whether embedded in the hardware or provided on a separate data carrier, covering system, test and application functions, including the necessary supporting documentation for the software to be effectively used.
14.1 Subject to compliance with the terms and conditions contained herein, Philips grants the Customer a non-transferable, non-exclusive license, without the right to sublicense, to use the Licensed Software in the Designated Hardware in the Customer’s organization. No other right to the Licensed Software or any other intellectual property right of Philips or its suppliers shall be granted to the Customer, unless it is expressly provided.
14.1.1 The Licensed Software shall be used in the Designated Hardware only and at the place where the Product is installed, unless it belongs to a mobile system. Separate Software License Terms are required for each Designated Hardware or central processing unit on which the Licensed Software will be used. The Customer shall use the Licensed Software only for the agreed purpose.
14.1.2 The Licensed Software may include or incorporate proprietary or certified technology by Philips' suppliers. These Software License Terms do not imply a right in respect of any intellectual property right of Philips’ suppliers for use of such third-party technology. The Customer agrees to obtain a separate license from that supplier through an end-user license agreement between that supplier and the Customer if required.
14.1.3 These Software License Terms do not apply to any maintenance or service software provided separately or with the Product to assist Philips or its representatives in the installation, testing, and maintenance of the Designated Hardware.
14.2 Philips and/or Philips’ suppliers (as the case may be) have all intellectual property, title and interest in and to the Licensed Software and all modifications and derivative works and all intellectual property rights therein.
14.2.1 The Customer may copy or have a copy available in machine-readable form of the Licensed Software for backup/archiving purposes only for Customer’s own use of the Designated Hardware. The Customer shall not allow third parties to (a) copy, reproduce or distribute the Licensed Software or any part thereof, (b) assign, sublicense, lease, rent, lend, transfer, disclose or otherwise make the Licensed Software available. If and to the extent that such copy is permitted, the Customer shall not remove or alter any copyright notices, proprietary information notices or other legends or marks contained in the Licensed Software and shall reproduce in all media containing a copy of the Licensed Software all such copyright notices, proprietary information notices or other legends or marks as they may be affixed to the original media.
14.2.2 The Customer shall not permit the Licensed Software or any part thereof to be used or accessed by any person other than Philips’ personnel or its representatives or the Customer’s employees or agents involved in the Customer’s activities. Customer shall cause each authorized person using the Licensed Software to comply with the terms and conditions contained herein.
14.2.3 If the Customer uses the Licensed Software to access or use the services or features of Microsoft Windows Server products (all editions or later versions) or similar software or uses the Licensed Software to allow workstations or computer devices to access or uses services or features of Microsoft Windows Server products or similar software, the Customer may be required to (i) obtain, through Philips or directly, a Client Access License for the Licensed Software and/or for each workstation or computer device from Microsoft, or (ii) to obtain – if similar software is used – the required license from the relevant third party for each workstation or computer device.
14.2.4 Philips shall have no obligation to update or upgrade any third-party software of any kind (including Microsoft software, antivirus software, etc.) provided to the Customer by Philips, unless the parties expressly agree to do so.
14.2.5 The Licensed Software is licensed under copyright terms and shall not be sold, and any reference to “sale” or “sold” in relation to any Licensed Software shall be deemed to be a copyright license, and not as a transfer of any intellectual property right.
14.2.6 The Licensed Software may be accompanied by certain open source software. This open source software shall only be governed by its own open source license terms. To the extent that Philips has provided the Customer with a copy of the relevant open source software license terms, the Customer shall comply with these open source software license terms.
14.3 The Customer shall not modify, unblock, organize, adapt, correct errors, translate, reverse-engineer, decompile or disassemble the Licensed Software or fail to perform such activities. Additionally, the Customer shall not create or have created derivative works based on the Licensed Software without the prior written consent of Philips. The information necessary for interoperability of the Licensed Software with other software shall only be obtained from Philips in relation to the current standard terms and conditions and at the sole discretion of Philips.
14.3.1 If the Licensed Software is in any way modified by the Customer or a third party, or is combined with software or equipment not provided and/or approved in writing by Philips, all warranties associated with the Licensed Software and the Designated Hardware shall become null and void from the time of such modification.
14.3.2 Philips may create and license updates or upgrades to the Licensed Software from time to time. Updates and/or upgrades may be made available to the Customer under the applicable terms and conditions.
14.3.3 Philips may make the maintenance of the Designated Hardware and/ or Licensed Software available to Customer, but only if agreed in a separate maintenance/customer support agreement.
14.3.4 Philips shall have no obligation to provide assistance, support, maintenance or new versions, unless and to the extent Philips has expressly agreed in writing.
14.3.5 The Customer shall indemnify Philips and its affiliates against any damages or costs arising from or related to any breach of the provisions of this Clause and the Customer shall reimburse all costs and expenses incurred by Philips and/or its affiliates in defending any claim arising from or related to such breach.
14.4. These Software License Terms shall remain in force and will remain effective for as long as the Customer uses the Designated Hardware, and/or Licensed Software except if Philips terminates these Software License Terms immediately in the event that the Customer breaches these Software License Terms, provided that Philips gives the Customer a written notice specifying such breach and in the case the Customer is unable to remedy such breach within fifteen (15) days from the date of such notice or within a longer period that may be specified in said notice. Such termination shall not release the Customer from any of its obligations incurred prior to such termination and shall not affect any of Philips’ rights accrued prior to such termination. The Customer shall remove or allow Philips to remove the Licensed Software from the Designated Hardware, and return the Licensed Software and any copies and related documentation to Philips at the Customer’s expense immediately upon termination of the License. Upon such return, the Customer shall certify to Philips that it is not retaining, directly or indirectly, in whole or in part, the Licensed Software or parts thereof.
14.5 In the absence of any specific warranty for the Licensed Software as defined herein (other than third-party software), Philips warrants that, for a period of one year from the date such Licensed Software became available, such Licensed Software shall be substantially compliant with the applicable functional specifications in force.
14.5.1 This software warranty is made under the condition that during the applicable warranty period: (a) the Customer notifies Philips’ non-compliance in writing within ten (10) days from discovery, providing full details of such non-compliance; (b) such non-compliance is a critical error in the current version of the Licensed Software; and (c) Philips is able to reproduce such non-compliance. Philips shall then, at its sole discretion and expense and as a sole remedy for the Customer, make efforts to correct any such non-compliance, whether by replacement, correction or modification of the Licensed Software. If Philips is not able to remedy the non-compliance, Philips may reimburse a reasonable portion or the entire purchase Price of the Product. All corrections shall be made in accordance with the correction procedures of the Philips’ Licensed Software. Philips does not warrant the effectiveness of the correction efforts and does not represent or warrant that all errors may be corrected. The warranty period for the corrected Licensed Software will not extend the warranty period as set forth above.
14.5.2 The Licensed Software is provided and accepted by the Customer “AS IS”, without warranty of any kind, and no, express or implied warranties, are provided.
14.5.3 Philips’ warranty and service obligations in this document apply to third-party software only to the extent that Philips, in accordance with its license agreement or sales agreement with such third party, is entitled to the corresponding warranties and services.
14.6 Philips shall offer a software license to any bona fide licensee of the Designated Hardware in which the Licensed Software is being used (hereinafter “Secondary Licensee”), in accordance with the charges, terms and conditions in force. Due to Philips’ need to protect its proprietary information, Philips reserves the right not to license the Licensed Software to any Secondary Licensee if such Secondary Licensee is deemed by Philips to be a competitor. Upon any sale of the Designated Hardware to a Secondary Licensee and the approval of the Secondary License, Philips shall uninstall such Designated Hardware at the then current Philips’ fees and reinstall such Designated Hardware for the Secondary Licensee, but only after such Secondary Licensee has agreed to the software licensing terms.
14.6.1 Regarding the Licensed Software to which one or more third-party suppliers may be entitled, the provisions contained in this document shall also revert for the benefit of such suppliers. The Customer agrees to indemnify Philips for any claims made by third parties resulting from breach of the License by the Customer.
14.6.2 The Licensed Software may contain support for programs made in Java. Java technology is not fault-tolerant and is not designed, prepared, or planned for use or resale as online control equipment in hazardous environments that require fail-safe performance.
15.1 If any of the parties have contact by any means with confidential information of the other party, it shall keep this information confidential. Such information shall only be disclosed if and to the extent that it is necessary to carry out the concerned transactions. This obligation does not extend to public domain information and/or information that is required be disclosed by operation of law or court order.
16.1 During the applicable warranty period and any customer service period agreed , if any, Philips may have to access, view and/or download computer files from the Product that might contain information in any form relating to an identified or identifiable individual (“Personal Data”). To the extent that Philips has access to Personal Data and to the extent required by applicable mandatory law, Philips agrees to:
i.Process Personal Data in accordance with all laws and regulations applicable to the processing of Personal Data and only to the extent necessary to fulfill its obligations under this Agreement. “Processing” shall mean any operation or set of operations performed by automatic means or otherwise, including, without limitation, the collection, recording, rearrangement, organization, storage, loading, adaptation or alteration, retrieval, consultation, display, use, disclosure, dissemination, removal, erasure or destruction of Personal Data;
ii.ensure that only persons involved in the services shall have access to the Personal Data and shall require such persons to protect and maintain the confidentiality of the Personal Data;
iii.implement the appropriate technical and organizational security measures to protect the Personal Data and reasonably demonstrate Philips’ compliance to Customer;
iv.inform Customer immediately after becoming aware that a Personal Data breach has occurred, unless otherwise prohibited, such as where a law enforcement or supervisory authority requests Philips not to do so;
v.not hold Personal Data any longer than necessary for the purpose of performing any obligation hereunder and arrange at the choice of the Customer for the secure deletion or return of all the Personal Data together with the deletion of all copies in its possession, unless otherwise instructed by Customer or except to the extent Philips is required by law to retain such Personal Data;
vi.ensure that transfers of Personal Data to affiliates or sub-processors will occur on the basis of a legally recognized transfer mechanism;
vii.Customer acknowledges and agrees that Philips may use and engage sub-processors to Process Personal Data. Philips will ensure that sub-processors are contractually bound to similar data protection obligations with respect to the Processing of the Personal Data as those to which Philips is bound to under these Conditions of Sale.
Each party shall protect business contact information classifying as Personal Data against unauthorized disclosure and any other unlawful Processing, and shall use such information only for legitimate business purposes in the interaction with each other.
17. Force majeure
17.1 Each party shall have the right to suspend the performance of its obligations as a result of any delays or defaults caused by events beyond its reasonable control, including, but not limited to, acts of God, war, civil war, insurrection, fire, flood, labor disputes, epidemics, governmental regulations and/or similar acts, freight embargoes, Philips’ unavailability regarding any required permits, licenses and/or authorizations, default or force majeure of suppliers or subcontractors.
17.2 If the cause of force majeure prevents Philips from fulfilling any request from the Customer or performing any obligation arising from this Agreement, Philips shall not be liable to Customer for any compensation, reimbursement or damages.
18. Final Provisions
18.1 Any newly manufactured Product provided may contain selected remanufactured parts equivalent to new in terms of performance. Spare parts are new or equivalent to new in terms of performance.
18.2 If the Customer becomes insolvent, unable to pay its debts as they fall due, files for bankruptcy or is subject to it, has appointed a receiver, is subject to a late fee on payments (temporary or permanent), or has its assets assigned or frozen, Philips may cancel any unfulfilled obligations or suspend its performance; provided that, however, the Customer’s financial obligations to Philips shall remain in full force and effect.
18.3 If any provision of this Agreement is found to be unlawful, unenforceable or invalid, in whole or in part, the validity and enforceability of the remaining provisions shall remain in full force and effect. In lieu of any provision deemed to be unlawful, unenforceable or invalid, in whole or in part, a provision reflecting the original intent of this Agreement, to the extent permitted by the applicable law, shall be deemed to be a substitute for that provision.
18.4 Notices or other communications shall be given in writing and shall be deemed effective if they are delivered in person or if they are sent by courier or mail to the relevant party.
18.5 The Customer shall at all times comply with all applicable laws and regulations, including laws and rules on anti-bribery and corruption.
18.6 The failure by the Customer or Philips at any time to require compliance with any obligation shall not affect the right to require its enforcement at any time thereafter.
18.7 The Customer shall not, without the prior written consent of Philips, transfer or assign any of its rights or obligations. Philips is entitled to transfer or assign any and all of its receivables, and/or fulfilments of the Customer relevant to this Agreement to any bank or financial institution chosen at Philips’ discretion (“Assignee”). The Customer hereby acknowledges and consents to any such transfer and/or assignment inclusive of all rights and privileges contained in this Agreement or quotation. Philips will provide written notice to the Customer in writing of the transfer or assignment. The notice shall be duly signed by an authorized signatory of Philips and shall include updated payment details and instructions pursuant to which the Customer shall pay the relevant bank or financial institution against the assigned receivables. The Customer hereby undertakes to acknowledge the receipt and acceptance of the notice of assignment, and to execute all documents and instruments reasonably required by Philips to give effect to such transfer or assignment.
18.8 The Customer’s obligations do not depend on any other obligations it may have under any other agreement or arrangement with Philips. The Customer shall not exercise any offset right in the Quotation or sale in relation to any other agreement or arrangement with Philips.
18.9 In the absence of any exception in the item IX of the Specific Conditions, this Agreement and any agreement for the supply of the Product and related services shall be subject to and construed in accordance with the laws of Malaysia. The competent court of Kuala Lumpur, Malaysia shall have exclusive jurisdiction in the event of any dispute between the parties, without prejudice to Philips right to submit any dispute to the court in Customer’s place of registration. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
18.10 This General Terms and Conditions, in the absence of any other signed agreement between the parties, shall form a binding agreement between Philips and the Customer and supersedes any prior understandings or agreements between the parties, whether written or oral, relating to the transactions contemplated by this Agreement. Any additional condition or amendment to this Agreement shall be made in writing and signed by the legal representatives of the parties.