- REVIEW, ACCEPTANCE AND DELIVERY. The Customer and Clarius agree to the purchase price for the Products indicated in an order submitted through Clarius’ e-commerce webstore portal (the “Order”). All Orders are subject to acceptance by Clarius either in writing or by shipping of Products. If Customer purchases the Products using a credit card, Clarius will pre-authorize the credit card supplied by the Customer for the total amount and in the currency shown on the Order. Clarius may then review all Orders prior to acceptance, to determine, without limitation, availability of inventory, Customer medical qualifications, and/or Clarius’ ability to deliver Products to a particular geographical location. An Order is not considered accepted and the credit card will not be charged until Clarius is, in its sole discretion, satisfied with this review. In the event the credit card pre-authorization times out prior to Clarius completing its review, Customer hereby authorizes Clarius to initiate a new charge on the credit card supplied by the Customer for the same amount and in the same currency as the charge that timed out. Upon Clarius’ acceptance of a submitted Order, Clarius shall deliver to Customer, and Customer shall accept and pay for, all Products and services ordered by Customer pursuant to an Order. Clarius may accept any Order in whole or in part and Clarius’ shipment of less than all Products ordered shall constitute acceptance only as to those Products shipped.
- DELIVERY. Standard delivery time for ordered Products is approximately 30 days or as otherwise indicated to in Clarius’ communication to Customer. Clarius shall use reasonable efforts to provide timely delivery, but shall not be liable for any failure to meet any delivery dates. Unless otherwise specified in an accepted Order, for orders placed in the United States or Canada, prices do not include shipping and transportation costs, but do include packing and insurance costs, license fees, customs duties and brokerage fees involved in delivery of equipment to the Customer’s North American shipping address. Products ordered for delivery outside the United States or Canada shall, unless expressly agreed to in writing by Clarius, be made available on an Ex-Works (INCOTERM) basis.
- PRICES. Unless specified otherwise in this Agreement, the purchase prices, charges, and other amounts payable by Customer for the Products shall be as specified by Clarius in the accepted Order.
- TAXES. The prices described in paragraph 4 do not include any sales, use or similar taxes. Customer shall pay or reimburse Clarius for all taxes or other amounts payable to governmental authorities in connection with the applicable transactions, or shall provide Clarius with an exemption certificate satisfactory to Clarius.
- PAYMENT. Payment is due upon completion of the review noted in Section 2 and prior to shipment of Products. The total amount due indicated on the accepted Order is required to be paid. Clarius reserves the right to reject any Order not completed with payment of the total amount due. The title to the Products shall pass to the Customer according to the standard for the shipping term used. All amounts payable under this Agreement are denominated in the currency stated in the Order and Customer shall pay all such amount in lawful money of such currency unless expressly agreed otherwise.
- PURCHASE OPTIONS.
7.1 Clarius provides two purchase options for its Clarius HD3 ultrasound scanners: membership and standalone (also called one-time). The membership option requires enrollment into the Clarius Membership Program (defined below) which has various member benefits and features. The standalone option does not require enrolment into the Clarius Membership Program, but scanners purchased via this option has fewer features. HD3 Scanners purchased via the membership option will be referred to herein as “Membership HD3 scanner(s)” and scanners purchased via the standalone option will be referred to herein as “Standalone HD3 scanner(s).”
7.2 Features available in the Membership Program are generally not available to Standalone HD3 scanners. However, certain advanced software packages are available for purchase via one-time license fees as may be selected and shown in your Order.
- MEMBERSHIP PROGRAM
8.1 If Customer is purchasing a Membership HD3 scanner, Customer hereby enrolls in the Clarius membership program (the “Membership Program”) on the terms and conditions set out herein. So long as Customer continuously remains a member of the Membership Program, Customer will have access to the features of the Membership Program, that include:
- Advanced specialty packages, imaging modes, and software features (as applicable to the scanner model purchased), including DICOM, Pulsed-Wave Doppler, and Strain Elastography;
- Updates to the advanced specialty packages, imaging modes, and software features upon release;
- Access to Clarius Cloud, an online service that allows customers to securely upload, manage, and share ultrasound exams – such access including unlimited exam storage (subject to reasonable use limitations determined by Clarius in its sole discretion);
- Access to Clarius education resources, including use of Clarius Live and in-App access to the library of Clarius Classroom educational videos; and
- Access to Clarius-provided clinical training via teleconference.
8.2 Membership Program payments are paid in advance and billed annually. The annual membership payment for the first year must be made when purchasing of a Membership HD3 scanner. A Membership HD3 scanner cannot be purchased without an accompanying membership payment for the first year.
8.3 Customer’s enrolment into the Membership Program starts on the date a Membership HD3 scanner is claimed to an institution on Clarius’ online systems (the “Membership Start Date”) and automatically continues until it is changed or cancelled by Customer in accordance with this Agreement. Customer must claim their Membership HD3 scanner to an institution to activate their membership within 3 months of the shipment date of the scanner. If Customer has not enrolled a Membership HD3 scanner into the Membership Program within 3 months of the shipment date of the scanner, the Membership Start Date will be deemed to be 3 months from the shipment date of the scanner. Customer authorizes Clarius to charge all scheduled membership payments plus applicable taxes (including sales, use, transfer, goods and services, harmonized sales taxes, value-added taxes (VAT) and similar taxes together with any interest and/or penalties) (collectively, “Taxes”) to the provided credit card account on each anniversary of the Membership Start Date. Prior to expiry of an anniversary of the Membership Start Date, Clarius will email Customer at the email address associated with their Clarius account to notify Customer of their upcoming Membership anniversary date, so that Customer can confirm payment details. If Customer does not make any changes to their membership or payment details, Clarius will charge the annual membership payment for the following year plus all applicable Taxes to the Customer’s credit card and Customer’s enrolment in the Membership Program will automatically renew for another year.
8.4 All amounts payable under this Agreement are denominated in the currency stated in the Order, and Customer will pay all such amount(s) in lawful money in the applicable currency. If the membership payment date falls on a weekend or holiday, Customer acknowledges that the membership payments may be executed on the next business day or as soon as reasonably practicable. Customer certifies that Customer is an authorized user of their credit card and will not dispute these scheduled transactions with Customer’s bank or credit card company; so long as the transactions correspond to the terms indicated in this Agreement and any Order. Customer acknowledges that changing of credit card information may temporarily disrupt Customer’s access to the benefits and features of the Membership Program while Clarius verifies the new payment information.
8.5 CUSTOMER IS RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL MEMBERSHIP PAYMENTS AND FOR PROVIDING CLARIUS WITH VALID CREDIT CARD OR PAYMENT ACCOUNT DETAILS FOR PAYMENT OF ALL FEES. If Clarius is unable to successfully charge Customer’s credit card or payment account for fees due after reasonable efforts to communicate with Customer, Clarius may consider Customer’s membership in the Membership Program cancelled, and the provisions in Section 9 below shall apply. Customer’s obligation to pay all membership payments and other amounts due or to become due hereunder is absolute and unconditional and is not subject to any delay, reduction, set-off, defence, withholding, deduction, claim, counterclaim or recoupment for any reason at all.
8.6 Customer acknowledges that enrolment in the Membership Program is determined per-scanner based on the serial number of the scanner. This means that different user accounts associated with the same institution may access the benefits of the Membership Program of a Membership HD3 scanner. It also means that membership payments are due for each Membership HD3 scanner. If an institution has multiple scanners, it is possible for one scanner to have an active enrolment in the Membership Program, while another scanner does not. If Customer desires to have Membership Program benefits for all scanners in an institution, Customer must make ongoing membership payments for every scanner of the institution.
- TERMINATION OR CHANGES TO MEMBERSHIP
9.1 If Customer cancels their membership in the Membership Program for a Membership HD3 scanner, the Membership HD3 scanner will no longer have access to the benefits of the Membership Program. Customer may continue to use the Membership HD3 scanner, but Customer acknowledges and agrees that use of the Membership HD3 scanner will be subject to the following limitations:
- the advanced specialty packages, imaging modes, and software features associated with the Membership Program (some of which are listed above in Section 1) will no longer be available on the Membership HD3 scanner, and the Membership HD3 scanner may be limited to only B-mode, Color Doppler, and M-mode functionality. Customer may still receive security updates and updates to the Clarius App, but they may not access the latest enhancements added to the Membership Program.
- Access to Clarius Cloud will be restricted only to viewing previously uploaded exams, and Customer’s ability to upload new exams to Clarius Cloud will end.
- If the cancellation results in the user account no longer having access to a Membership HD3 scanner with an active enrollment in the Membership Program,
- access to Clarius education resources, including use of Clarius Live and in-app access to the library of Clarius Classroom educational videos will be removed from the Clarius App; and
- Customer will no longer have access to Clarius-provided clinical training via teleconference.
9.2 Enrolment in the Membership Program cannot be cancelled for the first year. If Customer cancels their membership part way through a membership year (including during the first membership year), the cancellation will take effect at the subsequent anniversary of the Membership Start Date and no pro-rated refunds will be provided. Membership HD3 scanners with cancelled membership enrollments are not eligible for purchase of advanced software packages that are available for sale with Standalone HD3 scanner(s). Membership HD3 scanners without active membership can only regain access to Membership features (including Clarius Cloud) by re-enrolling in the Membership Program.
9.3 Customer acknowledges that it is not entitled to the features of the Membership Program in perpetuity and that Clarius may from time to time update the terms of the Membership Program to change, for example, the membership payment amounts and/or the features provided under the Membership Program (e.g., those features listed in Section 8.1 above). Prior to making any changes, Clarius will provide Customer with at least thirty (30) calendar days’ notice, and this notice will indicate the options available to Customer for continued membership in the Membership Program. Upon receiving such notice, Customer may elect to continue their membership under the new terms, cancel their membership (with no prorated refunds to be provided), or exercise another option available to Customer indicated in such notice.
9.4 Clarius may restrict, suspend, block, disable, or cancel Customer’s access features to the Membership Program without notice or liability to Customer, if: (i) Customer is in breach of this Agreement or the Additional Terms, including for non-payment; (ii) Customer exceeds Clarius’ reasonable usage limits; (iii) Customer has provided false, misleading or outdated information; (iv) Clarius reasonably suspect or determine that any of the services or Products is the subject of fraudulent, unlawful or improper usage; or (v) Customer fraudulently or improperly seek to avoid payment to Clarius. If any of the foregoing events trigger Clarius to take action under this paragraph: (a) Clarius may unilaterally terminate Customer’s membership in the Membership Program; and/or (b) Customer may be prevented from accessing any stored content stored on Clarius Cloud services.
- LIMITED WARRANTY. Clarius’ sole and exclusive warranties for the Products are contained in the warranty terms at clarius.com/hd3-warranty-terms/ (“Warranty Terms”), such Warranty Terms forming an integral part of this Agreement. CLARIUS MAKES NO OTHER REPRESENTATION, WARRANTY OR PROMISE OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE PRODUCTS, THE CLARIUS APP, OR ANY CLARIUS-SUPPLIED SERVICE (INCLUDING ANY SPARE OR COMPONENT PARTS, ACCESSORIES OR OTHER SERVICES SUPPLIED BY CLARIUS).
11.1 PRODUCT LIABILITY INDEMNIFICATION. Clarius shall defend and indemnify Customer from and against any third party claim arising out of bodily injury (including death) or physical property damage to the extent caused by any defect in the design or manufacture of the Products as delivered by Clarius to the Customer, provided that Customer: gives Clarius prompt written notice of the claim; allows Clarius to assume control of the defense and settlement of the claim; assists and cooperates with Clarius in connection with the defense and settlement of the claim; and does not settle the claim without Clarius’ prior written consent. The obligation of Clarius to indemnify the Customer under this Section 11.1 shall not apply to any claim arising out of the negligence or willful misconduct of Customer or any third party or a breach by the Customer of this Agreement or the failure of Customer or its employees, contractors, agents or other representatives to follow all instructions provided by Clarius in connection with the Products.
- LIMITATIONS OF LIABILITY
12.1 NO LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PENAL DAMAGES. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, SHALL CLARIUS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR REVENUES, LOSS OF USE OF THE PRODUCTS OR ANY ASSOCIATED EQUIPMENT, DAMAGE TO ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, FACILITIES, SERVICES OR REPLACEMENT POWER, DOWN TIME COSTS, OR CLAIMS OF THE CUSTOMER FOR SUCH DAMAGES. IF THE CUSTOMER TRANSFERS TITLE TO OR LEASES THE PRODUCTS SOLD HEREUNDER TO ANY THIRD PARTY, THEN THE CUSTOMER SHALL OBTAIN FROM SUCH THIRD PARTY A PROVISION AFFORDING CLARIUS THE PROTECTION OF THIS AGREEMENT.
12.2 LIMIT OF LIABILITY. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, SHALL CLARIUS’ LIABILITY TO THE CUSTOMER FOR ANY LOSS OR DAMAGE ARISING OUT OF, OR RESULTING FROM THIS AGREEMENT, OR FROM ITS PERFORMANCE OR BREACH OR FROM THE PRODUCTS OR SERVICES FURNISHED HEREUNDER, EXCEED THE PRICE OF THE SPECIFIC PRODUCT OR SERVICES WHICH GIVES RISE TO THE CLAIM. EXCEPT AS TO TITLE, ANY SUCH LIABILITY SHALL TERMINATE UPON THE EXPIRATION OF THE APPLICABLE WARRANTY PERIOD SET OUT IN THE APPLICABLE WARRANTY TERMS.
12.3 NO ADDITIONAL LIABILITY. If Clarius furnishes the Customer with advice or other assistance which concerns any Product supplied hereunder or any system or equipment in which any such Product may be installed and which is not required pursuant to this agreement, the furnishing of such advice or assistance shall not subject Clarius to any liability, whether in contract, warranty, tort (including negligence and strict liability) or otherwise.
- DISCLAIMER AND RELEASE. THE WARRANTIES, OBLIGATIONS, AND LIABILITIES OF CLARIUS AND THE REMEDIES OF CUSTOMER SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND CUSTOMER HEREBY WAIVES, RELEASES, AND DISCLAIMS, ALL OTHER WARRANTIES, OBLIGATIONS, AND LIABILITIES OF CLARIUS AND ALL OTHER RIGHTS, CLAIMS, AND REMEDIES OF CUSTOMER AGAINST CLARIUS, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE PRODUCTS AND ANY OTHER GOODS OR SERVICES DELIVERED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, USAGE OR TRADE, STATEMENTS OF CLARIUS REPRESENTATIVES, OR SAMPLES OR DEMOS PREVIOUSLY SUPPLIED; (C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE (ACTIVE, PASSIVE, OR IMPUTED), PRODUCT LIABILITY, OR STRICT LIABILITY OF CLARIUS; AND (D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY FOR INFRINGEMENT.
- OPERATIONS. The Customer shall ensure the Product is used solely in accordance with the specifications of the Product operation manual and other documentation provided by Clarius by properly qualified, trained and licensed medical professionals. The Customer shall facilitate Clarius’ performance of remote diagnostic and repair support by providing remote access methods reasonably requested by Clarius (e.g. internet access).
- SOFTWARE. Clarius retains title to all software and firmware furnished with any Product. Customer shall use such software or firmware only in conjunction with the use or operation of such Product and in accordance with applicable instructions and manuals furnished by Clarius. Customer shall not copy, modify, make any derivative work based upon, publish or distribute any such software or firmware. Further, Customer acknowledges and agrees that the Product shall be used solely with a dedicated mobile application supplied by Clarius (the “Clarius App”) as available from a mobile application vendor, and Customer shall not reverse engineer, decompile, re-engineer or attempt to discover or recreate any source code to any such software or firmware, or any communication protocol between the Product and such mobile application, or among multiple Products.
- INTELLECTUAL PROPERTY RIGHTS. The Customer acknowledges that the Products and all codes, programs, firmware, software, know-how, methods and concepts furnished with the Product and all physical and electronic manuals and other printed and electronic material relating to the Products, involve valuable copyright, patent, trademark, industrial design, trade secret and other proprietary and Intellectual Property rights of Clarius (collectively “Product Intellectual Property”). Clarius grants the Customer a limited, non-exclusive license to use the Product Intellectual Property only in connection with and to the extent necessary for the use of the Products. Clarius reserves and retains all patent, copyright, trade secrets, trademark, industrial design and other proprietary rights related to the Product Intellectual Property. No title or ownership of any Product Intellectual Property is transferred to the Customer. The Customer shall not infringe, contest, or violate Clarius’ proprietary rights, and shall not copy, trace, disassemble, decompile, reverse engineer, re-engineer or modify any Product Intellectual Property, nor cause or permit others to do so. Transfer of the Products by the Customer shall constitute a transfer of such license, which shall not otherwise be transferable. The Customer’s license to use the Product Intellectual Property shall automatically terminate if the Customer uses or permits use of Product Intellectual Property in any way not permitted by or in violation of this paragraph. The Customer shall be bound by the terms of third party license agreements for third party software that may be used in the Products.
- MANUFACTURE, FINAL ASSEMBLY AND OEM EQUIPMENT. Clarius reserves the right to utilize remanufactured components in the production of the Products, options, upgrade or replacement part to be supplied under this Agreement. To the extent that such components are utilized, they shall be subjected to the same incoming inspection and quality control procedures as all other materials used in the manufacture of the product and shall be warranted to the same extent as all other components under the warranty. If third party OEM equipment is included in the Order, it is subject to design and specifications changes from the manufacturer without notice. Clarius reserves the right to change and/or substitute OEM equipment for a product of equal or better quality.
- CONFIDENTIAL INFORMATION. Clarius may disclose to Customer certain trade secret, proprietary or confidential information (“Confidential Information”). Except as otherwise authorized by Clarius in writing, Customer shall use such Confidential Information only for the purposes for which it is disclosed by Clarius. Additionally, Customer shall not disclose such Confidential Information to any third party and shall take appropriate steps to protect it from any unauthorized use or disclosure; provided that, upon or promptly after disclosure by Clarius, the information is marked or otherwise identified as trade secret, proprietary or confidential or the Customer otherwise knows or has reason to know that such information is a trade secret, proprietary or confidential.
- ASSIGNMENTS AND TRANSFERS. This Agreement, and any Order based thereon, are not assignable by Customer without the prior express written permission of Clarius. Customer shall not, without prior written approval of Clarius ship or otherwise transfer any Product(s) to any third party or to any location other than the location to which it is shipped by Clarius. Clarius may assign this Agreement upon provision of notice to Customer.
- UNENFORCEABLE PROVISION. The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were replaced with a valid and enforceable provision as similar as possible to the one replaced.
- SEPARATE ENFORCEABILITY. THE SECTIONS OF THIS AGREEMENT ARE TO BE CONSIDERED AS SEPARATE PROVISIONS AND SHALL EACH BE INDIVIDUALLY ENFORCEABLE.
- NONWAIVER. Any failure by Clarius to insist upon or enforce performance by Customer of any of the provisions of this Agreement or to exercise any right or remedy under this Agreement or applicable law shall not be construed as a waiver or relinquishment to any extent of Clarius’ right to assert or rely upon any such provision, right or remedy in that or any other instance; rather the same shall be and remain in full force and effect.
- ENUREMENT. This Agreement shall enure to the benefit of, and be binding upon, the parties and their respective lawful successors, permitted assigns and legal representatives.
- DELAY Clarius shall not be liable for delays in delivery or performance, or failure to manufacture, deliver or perform due to causes beyond its reasonable control, such as acts of God, acts of the Customer, acts of civil or military authority, governmental priorities, fires, strikes or other labour disturbances, floods, epidemics, quarantine restrictions, war, riots, delays in transportation, car shortage and inability due to causes beyond its reasonable control to obtain necessary labour, materials, components, services, manufacturing facilities, or any other commercial impracticability. In the event of any such delay, the date of the delivery or of performance shall be extended for a period equal to the time lost by reason of the delay. In the event of a product shortage, Clarius shall have the right to allocate its available Products among its Customers in such a manner as Clarius may consider equitable.
- APPLICABLE LAW. This Agreement shall be interpreted, construed, and enforced in all respects in accordance with the laws of the Province of British Columbia and of Canada, without reference to its choice of law principles. The parties hereby submit to the exclusive jurisdiction of the courts of British Columbia for the determination of any controversy arising under or in connection with this Agreement. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
- ENTIRE AGREEMENT. This Agreement constitutes the entire agreement, and supersedes any and all prior agreements, between Clarius and Customer with regard to the Products. No amendment, modification, or waiver of this Agreement shall be valid unless set forth in a written instrument signed by the party to be bound.
- PATIENT INFORMATION. When using the Products with the Clarius App, Customer can enter personal health information of patients for uploading to the Clarius Cloud. Customer and Clarius agree that supplemental terms such as specified in a Business Associate Agreement may govern Customer and Clarius with respect to such uploaded personal health information.
- FORCE MAJEURE. Except for payment obligations, neither Customer nor Clarius shall be liable in damages or have the right to terminate this Agreement or any Order for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including but not limited to acts of God, government restrictions (including the denial or cancellation of any export of other necessary license), wars, insurrections, and/or any other cause beyond the reasonable control of the party whose performance is affected (including mechanical, electronic, internet service provider, or communications failure).
- RESEARCH USE LIMITATIONS. If Customer is purchasing Products for research use (whether or not a research package is purchased), Customer represents and warrants that they will:
(i) take all reasonable precautions to prevent cross-contamination in the event the Products are being exposed to specimens or fluids that contain bacteria, fungi, parasites, prions, toxins, viruses, pathogens, or other contaminants. Customer must inform Clarius if Products are to be used with such contaminants, and Customer is solely responsible for performing adequate cleaning, disinfection, and/or sterilization of contaminated Products. To prevent spread of contaminants and ensure the health and safety of Clarius personnel, Clarius reserves the right, in its sole discretion, to refuse service, repair or return of any Products exposed to such contaminants, notwithstanding any warranty coverage for such Products; and
(ii) not modify the acoustic output of any ultrasound scanners, and to the extent any such modifications are actually made, not use the modified scanners for diagnostic or clinical purposes.
Customer shall indemnify Clarius from and against any damage, claim, or harm arising out of Customer’s failure to adhere to the above research use limitations.