SOUND ASSURANCE PREMIER WARRANTY & SERVICE PROGRAM TERMS & CONDITIONS
1. General. These Sound Assurance Premier Warranty & Service Program Terms & Conditions are the commercial terms of the Sound Assurance Premier Warranty & Service Program (“Assurance“) and all warranties and services offered thereunder (the “Services“) by Sound (“Sound“) to the purchaser (the “Customer“) of the Sound Assurance Warranty identified in the Sound Assurance Premier Warranty & Service Program Warranty Confirmation (the “Warranty Confirmation“) for the equipment identified on the Warranty Confirmation (the “Covered Equipment“). The Sound Assurance Premier Warranty & Service Program Warranty Executive Summary (the “Executive Summary”) to which the Warranty Confirmation is attached to and these terms and conditions, which are incorporated in and are a part of the Executive Summary, shall be referred to as these “Terms & Conditions.” These Terms & Conditions constitute the complete and exclusive agreement regarding the warranty and service terms and conditions of the Covered Equipment and supersede any prior agreements or representations—including representations made in any Sound sales literature or advice given to Customer by Sound, or an agent or employee thereof—that may have been made in connection with Customer’s purchase of the Covered Equipment.
2. Term. The term (the “Term”) of Customer’s participation in Sound Assurance shall be as set forth in the Executive Summary. Sound is under no obligation to renew or extend Sound Assurance, and to the extent Sound elects to offer any renewal or extension, the prices, conditions, and limitations of Sound Assurance of such renewal or extension shall be Sound’s sole discretion.
3. Fees. Additional services not listed in the Executive Summary are not included in Sound Assurance and Customer will be responsible for the cost of labor plus materials.
4. Finance Charge/Costs of Collection. Any amount not paid when due shall accrue a late charge at a rate of one and one-half percent (1.5%) per month (eighteen percent (18%) per year), or the maximum rate provided by law, whichever is less. If Customer is delinquent in paying any amount owed to Sound by more than thirty (30) days, then without limiting any other rights and remedies available to Sound under law, in equity, or under contract, Sound may:
a. by notice to Customer, suspend provision of the Services until all outstanding amounts, including any applicable finance charges are paid in full; or
b. by notice to Customer, treat such delinquency as a repudiation by Customer of the portion of the Agreement not then fully performed, whereupon Sound may cancel all further obligations with respect to Services.
5. Taxes. Customer is responsible for and shall pay all sales, use, ad valorem, excise and/or any other taxes imposed on either party by virtue of Sound Assurance, except for taxes based on Sound’s net income. Sound will invoice Customer for any taxes Sound is legally obligated to collect from Customer.
6. Services. Services covered by Sound Assurance are only those specifically identified in the Executive Summary and these Terms & Conditions.
a. All Services are provided remotely through Sound’s Support Call Center. Sound makes no commitment to provide on-site Services as part of Sound Assurance. Sound bears no responsibility for failure to provide Services in the event of technical difficulties with telephone or broadband connectivity or other matters which are out of its control.
b. Response times for Services are not guaranteed.
c. Sound reserves the right to change the duration, frequency, type, nature, form and other aspects of the Services without the prior approval of Customer upon not less than thirty (30) days advance notice.
d. Unless otherwise explicitly identified in writing by Sound, Services do not include: (i) the provision and maintenance of a dedicated broadband connection to the Covered Equipment; (ii) the provision of security measures to protect network configuration or protection from unauthorized access to the network; (iii) support for remote connectivity solutions not recommended by Sound; (iv) support for the repair, replacement or disposal of accessories and power supply equipment or consumable items, including, without limitation, synchronization and receptor cables, foot pedals assemblies, batteries, cassettes, copier drums, computers, monitors, filters, image intensifiers, laser tubes, film magazines, radiograph generators, radiograph tables, radiation sources, compressors, film processors, processor chemicals, styli, software, bulbs, glassware, radiation sources, dyes, or storage media, fibers, handpiece switch detector or treatment heads; (v) the provision, payment, or reimbursement of any rigging or facility cost, including monitor mounting, cable installation, computer mounting, network cabling, or other activities related to information technology; (vi) material and labor costs associated with reusing existing facilities (wire, termination fields, network facilities, equipment room, peripherals, adjuncts); and (vii) temporary installation of equipment for testing, training, and other purposes.
e. The provision of all Services, including the offer of any discounts, is subject to Customer remaining in good standing under Sound Assurance (including timely payment of fees and other applicable amounts).
7. Proprietary Service Materials. In connection with the installation, configuration, maintenance, repair, and/or de- installation of the Covered Equipment Sound may deliver to Customer (either with the delivery of the Covered Equipment or otherwise), store at Customer’s location or attach to or install on Customer’s equipment parts of this package that have not been purchased by or licensed to Customer. The presence of this property at the location at which the Covered Equipment is located will not give Customer any right or title to such property or any license or other right to access, use or decompile such property. Any access to or use of this property and any decompilation of this property by anyone other than Sound’s personnel is prohibited. Customer agrees that it will use reasonable efforts to protect such property against damage or loss and to prevent any access to or use of this property contrary to this prohibition.
8. Software Patches/Fixes. If access to patches, fixes and minor enhancements to Sound software is identified as part of the Services in the Executive Summary, Sound shall provide patches, fixes and minor enhancements to Sound software included as part of the Covered Equipment free of charge. The installation of any patches, fixes and minor enhancements to software may not be reversible and may change the overall image quality and/or functionality of the Covered Equipment. Any software furnished by Sound under Sound Assurance (“Software”) is done so on a non-transferable license-to-use basis and all right, title and interest therein is and will remain vested exclusively in Sound or its licensors. Customer will not decompile, disassemble, or otherwise derive the source code of any Software furnished by Sound nor will Customer make any copies of such Software, except that Customer may make one (1) copy of such Software for backup purposes only. Customer will return or destroy all copies of Software upon cessation of use of the related Covered Equipment usage. All Software furnished by Sound is to be considered confidential information and will be held by Customer in strict confidence and disclosed on a need-to-know basis, or as required by law, to only those of its employees who have agreed in writing to maintain the confidentiality of Customer provided third party confidential information. No guarantee or commitment as to the type of products, functionality, enhancements, additions, usability or uptime with respect to the Software is implied or expressed by Sound. Nothing in these Terms & Conditions shall obligate Sound to develop, create, test, release, support or provide for use, or sell any new Software, Software patches, or Software functionality (“Software Enhancements”). Customer has no implied nor specific right, to receive or demand any Software Enhancements. Customer acknowledges and agrees that Software Enhancements may require hardware purchases, including possible necessary upgrades to existing hardware owned by Customer (“ Hardware Updates ”). Hardware Updates that may be necessary to make Software Enhancements operable to specifications are specifically excluded from Sound Assurance, and are Customer’s responsibility.
9. Remote Image Management. If access to SoundSafeTM, Antech Imaging Services, (“AIS”) Sound’s cloud based DICOM image storage service, is identified as part of the Services in the Executive Summary, Sound will provide to Customer access to SoundSafeTM (the “Archive”) through its internet portal at www.antechimagingservices.com
a. Data will be stored in the Archive for the duration of the Term. Upon termination of the Term Sound will bear no responsibility for maintaining customer’s data in the Archive. Customer is solely responsible for maintaining proper medical records in accordance with the laws of the state in which Customer is located. Storage of data in the Archive is not intended to replace Customer’s obligations with respect to laws regarding the retention of medical records.
b. Customer is allowed a maximum of twenty-five (25) gigabytes of Archive storage per month during the Term. If Customer exceeds the Archive storage limit, Customer will be charged $15.00 per additional gigabyte per month for the remainder of the Term.
c. It is solely Customer’s obligation to provide and maintain adequate broadband connectivity and bandwidth to transfer data. Sound bears no responsibility for data that is not successfully transmitted and received by the Archive server. Data is deemed “Archived” solely after it is received and logged as received by the Archive server. It is Customer’s responsibility to maintain the configuration of the Archive software to allow for adequate and consistent transmission of data.
d. In the event Customer desires to recover data that has been successfully stored in the Archive, Customer must request such recovery by calling the Sound Support Call Center. The Customer will be asked to provide a portable hard drive of the appropriate capacity. Sound is not responsible for loading Archived data back on the local PACS archive.
e. Sound has the right to view and use any data stored in the Archive for its own business purposes, including without limitation quality control, research, education, testing, training and product development.
f. Access to SoundSafeTM and its related products and services is subject in all respects to the applicable SoundSafeTM policies, terms and conditions, as in effect from time to time, and available at www.antechimagingservices.com
10. Sound Warranty. During the Term, Sound warrants that the Covered Equipment will (1) be free from defects in material and workmanship, and (2) conform to the applicable Sound published specifications in effect on the date of order of the Covered Equipment (the “ Sound Warranty”). Sound may, in its sole discretion, repair and/or replace the Covered Equipment, with similar new or refurbished products or parts, during the warranty period. Unless Sound notifies Customer otherwise, when receiving a replacement warranty part, Customer is responsible for installation of the replacement part and returning the defective part to Sound within 10 days of receipt of the replacement part. Each shipped replacement part includes a packing slip that provides Customer with information about how to return the defective part. Failure to return the defective part within 10 days may result in the suspension of Services or charges for the part at then current prices. The warranty period for any equipment furnished to Customer to correct a warranty failure will be the unexpired term of the warranty applicable to the repaired or replaced Covered Equipment. THE SOUND WARRANTY SPECIFICALLY EXCLUDES ANY AND ALL DAMAGE FROM MISUSE, TRAUMA, OR FLUID DAMAGE.
11. Limited Warranty. Except as expressly represented otherwise in these Terms & Conditions, all Services provided by or on behalf of Sound, including access to the AIS services, are provided on as “AS IS” basis, without warranty of any kind, whether express, implied, statutory or otherwise, especially with respect to quality, reliability, timeliness, usefulness, sufficiency and accuracy. ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED BY Sound AND AIS. NO ORAL OR WRITTEN INFORMATION PROVIDED BY Sound SHALL CREATE A WARRANTY UNLESS EXPRESSLY Incorporated INTO THESE TERMS AND CONDITIONS.
12. LIMITATION OF LIABILITY. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT, STRICT LIABILITY, STATUTE OR OTHERWISE, SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES RELATED TO THESE TERMS & CONDITIONS (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST BUSINESS PROFITS, LOSS OF DATA, INTERRUPTION IN USE OF EQUIPMENT OR UNAVAILABILITY OF DATA), INCLUDING CLAIMS OF ANY THIRD PARTY. Sound’s ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY SHALL BE FOR Sound TO REPERFORM SERVICES WITHIN A REASONABLE TIME FRAME.
13. OEM Warranties. For any equipment external to the Covered Equipment purchased by Customer (e.g., workstations, servers, and other peripherals), Customer shall have the benefit of any warranty provided by the original equipment manufacturer. OEM warranty service on any external equipment must be obtained directly from the original manufacturer, and such warranty expires in accordance with the terms thereof. The Services and Sound Warranty provided pursuant to the terms and conditions hereof do not include any service or warranty with respect to any external equipment. Sound DISCLAIMS ALL WARRANTIES ON ALL EXTERNAL EQUIPMENT.
14. Customer Responsibilities. It is Customer’s responsibility to, and Sound is not responsible for equipment downtime, warranty obligations or damages resulting from Customer’s failure to:
a. Intentionally omitted.
b. Provide all assistance reasonably requested by Sound or its agents, assist in gathering data from the Covered Equipment, Software and other equipment or systems, and use commercially reasonable efforts to provide accurate and complete data where any data is requested.
c. Remove and re-install any Sound advance replacement units, loaner equipment, or Customer owned equipment as necessary. Any third party labor charges associated with such installations or removals will be the sole responsibility of the customer.
d. Comply with the requirements of any implementation guidelines, security procedures, manuals or other instructions provided by Sound or the manufacturer of the Covered Equipment, including requirements to have access to commercially available software, media player or other technology reasonably necessary for access to or use of information.
e. Refrain from modifying, adding or combining any hardware or software to the Covered Equipment or Software provided by Sound, unless endorsed or accepted in writing by Sound. prevent
f. Ensure the security of networked equipment by taking appropriate measures to prevent unauthorized access to networked equipment and the interception of communications between Sound’s service center and the networked equipment, including isolating networked equipment from other networks, setting up firewalls, and taking any other measures that Sound reasonably believes is necessary to ensure the security of the networked equipment and related communications.
g. Ensure the Covered Equipment is used solely in accordance with reasonable care and caution, with the requirements of the operation manual, by properly qualified and licensed personnel, including without limitation providing a suitable environment for the Covered Equipment and maintenance of the temperature, cleanliness, debris-free nature and safety of that environment in a manner consistent with supporting the Covered Equipment (including without limitation, protection from building or location structural deficiency; power surge, fluctuation or failure; dust, sand, hair, urine, fluids, moisture, chemicals or other particles or debris; or air conditioning failure).
h. Promptly notify Sound in writing of any change in the location of the Covered Equipment or network configuration.
i. Provide prior notice to Sound of any change in the ownership or management control of Customer’s business.
15. Governing Law; Dispute Resolution. These Terms & Conditions are to be governed by and construed in accordance with the internal laws of the State of California, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of California or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of California. Any claim or controversy arising out of or relating to these Terms & Conditions must be submitted and settled as follows: A party alleging breach must inform the other party of such breach in writing. Upon receipt of such notice, the allegedly nonperforming party will have 20 days to cure the alleged breach. If the parties do not agree that effective cure has been accomplished by the end of the 20-day period, the dispute will be submitted to binding arbitration before the American Arbitration Association (“AAA”) in accordance with the AAA’s Commercial Arbitration Rules then in effect. The arbitration shall be conducted in San Diego, California. The law applicable to the arbitration, including the administration and enforcement thereof, is the Federal Arbitration Act, 9 U.S.C. §§ 1-16, as amended from time to time. The cost of the arbitration, including the fees and expenses of the arbitrator(s), will be shared equally by the parties, with each party paying its own attorneys’ fees. The arbitrator(s) will have the authority to apportion liability between the parties, but will not have the authority to award any damages not available under these Terms & Conditions. The arbitration award will be presented to the parties in writing, and upon the request of either party, will include findings of fact and conclusions of law. The award may be confirmed and enforced in any court of competent jurisdiction. Any post-award proceedings will be governed by the Federal Arbitration Act.
16. Force Majeure. Sound shall not be liable for any damages or delays caused by or in any manner arising from fires, floods, accidents, riots, acts of God, war, governmental interference or embargoes, strikes, labor difficulties, any shortage of labor, fuel, power, materials or supplies, transportation delays, delays in deliveries by Sound’s vendors or any other cause or causes (whether or not similar in nature to any of these hereinbefore specified) beyond Sound’s control.
17. Notices. Any notice given under these Terms & Conditions will be deemed to be sufficiently given when sent in writing by first class U.S. Mail, postage prepaid, or by electronic transmission with confirmation of transmission by the transmitting equipment, to the parties at their respective addresses set forth herein or to such other address, facsimile number or e-mail address which may be subsequently designated by giving notice to the other party. The date of mailing or transmission of any notice hereunder will be deemed the date on which that notice has been given.
18. Waiver. No failure and no delay in exercising, on the part of any party, any right under these Terms & Conditions will operate as a waiver thereof, nor will any single or partial exercise of any right preclude the further exercise of any other right. No course of dealing or course of performance may be used to evidence a waiver or limitation of Customer’s obligations under these Terms & Conditions.
19. Assignment. Sound may assign its rights and obligations under these Terms & Conditions without Customer’s consent. Customer may not assign its rights and obligations under these Terms & Conditions without the prior written consent of Sound; provided, however, that Customer may assign these Terms & Conditions without Sound’s prior written consent to any person or entity that acquires all or substantially all of the assets of the Customer (whether by way of sale of stock, assets, merger or otherwise), provided that any such assignee shall deliver to Sound a written assumption of all obligations and liabilities of Customer under these Terms & Conditions. These Terms & Conditions shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
20. Headings. The article and section headings contained in these Terms & Conditions are inserted for convenience only and will not affect in any way the meaning or interpretation of these Terms & Conditions.
21. Severability. If any provision of these Terms & Conditions is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such provision will be deemed reformed or deleted, as the case may be, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule, and the remaining provisions of these Terms & Conditions will remain in full force and effect.
22. Entire Agreement. These Terms & Conditions supersede, terminate, and otherwise void any and all prior written and/or oral agreements between the parties with respect to the Services. No change to the conditions of these Terms and Conditions is valid unless it is made in writing and signed by an authorized representative of Sound. Sound may in its sole discretion modify these Terms & Conditions at any time and from time to time in its sole discretion.
