SUBSCRIPTION USE TERMS
These terms and conditions of sale constitute an integral part of the Purchase Quotation to which these terms and conditions are attached.
- Subscription. Subject to the full payment of the Consideration (as defined below), EyeClick Inc. (the “Company”) hereby grants the Customer a subscription license under the terms specified in the End User Subscription License Agreement (the “EUSLA”) attached hereto as Annex B. Such subscription shall be revocable and shall be terminated with the termination of the Agreement in accordance with Sections 7-8 of this Annex A. For the avoidance of doubt, the EUSLA shall constitute a part of the Agreement, and all of its sections shall apply.
- Rent of the Product. The ownership to the Product’s hardware shall remain with the Company. In case Customer does not fulfill its payment obligations, Company shall be entitled (but not obligated) to retrieve the Product’s hardware at its own costs.
- Installation. The Company shall install the Product at the Customer’s premises, subject to the following conditions, which their fulfillment is under the Customer’s full responsibility:
- Installation shall be performed under a ceiling not lower than nine (9) feet and up to sixteen (16) feet above the projected surface. Installation requirement above 16 feet will require special approval and arrangements. The Customer shall be responsible to notify the Company and obtain the Company’s approval in advance for such installation and all costs related to such installation shall be separately paid by the Customer to the Company.
- A single power outlet above the location of the unit mounting spot, to support up to 1500 Watt. Preferred a UPS power line.
- LAN internet single line, provided at the mounting spot of the unit.
- White flooring below the projected area and in the size that will be advised by Company after a site survey (the “Site Survey”) is performed. The Company shall advise on the material and the quality of the floor required.
- Following completion of the Site Survey questionnaire filled in by the Customer (which may include site pictures), the Company shall recommend the required light conditions and may require the removal/cancelation of specific light sources that interfere with the projection and may also require the tinting of windows facing the outside daylight.
- Any other adjustments that may be required for the installation location shall be advised by the Company after the Site Survey is conducted.
- Services. Subject to Customer’s full compliance with the terms of the Agreement, during the Term (as defined in Section 7, hereunder), the Company shall provide the Customer with ongoing support, maintenance and rotating content service (the “Services”) as further elaborated in ANNEX C
- Consideration; Payment Terms.
- In consideration for the Product and the Services, the Customer shall pay the Company the Monthly Unit Price specified in the Purchase Quotation (the “Consideration”). Each installment of the Consideration shall be paid on or before the calendar day of each month following the installation date. The first Installment shall be paid within the execution of the Agreement. If the client delays installation for 45 days or more then billing will commence and continue every 30 days.
- From signing this PO until the completion of the Minimum Monthly Commitment after Installation (“The Initial Period”) it shall be binding and by signing the Agreement the Customer is obligated to pay the Company the Consideration during the Initial Period. Following the termination of the Initial Period, the Customer shall pay the Company the monthly Consideration, if the Agreement is not terminated in accordance with Section 7-8 below. After the completion of the Initial Period, the contract will continue at the same rate with the same implications under a month to month commitment.
- Buy-out option: Subject to the full payment of the Consideration and full compliance with the entire Terms and Conditions of this subscription for a period of at least 36-month following the BEAM device installation, the Customer may purchase the BEAM device installed at its location for a one-time payment of $1,500. Upon such payment, the ownership of the BEAM device will pass to the Customer and the subscription service and payments will terminate. Upon exercising this option, Customer is invited to approach EyeClick for other services arrangement such as maintenance and games update.
- If any part of the Consideration is not paid within 15 day(s) following the due date, in addition to any Consideration due, the Customer shall pay the Company a compensation equal to the lower of: (a) 1% of the unpaid Consideration per day; or (b) the maximum interest rate permitted by the applicable law for the unpaid Consideration. All amounts due hereunder, exclude all value added, import/export, customs or other taxes, fees, levies, withholding, duties and other governmental charges (with the exception of taxes imposed on the income of the Company), all of which will be borne exclusively by the Customer.
- Risk of Loss or Damage. Immediately following the installation date and until the termination of the contract, the Customer shall be held responsible for every loss or damage to the Product from any cause. For avoidance of doubt, in any case of loss or damage which occurs before the termination of the Initial Period, the Company may charge the Customer’s account for the actual replacement cost of such loss or damage, up to $3,999. The Company will report such cost charge to the Customer in writing.
7. Term. Unless earlier terminated under Section 8 below, the term of the Agreement shall begin and expire on the date which appear on the Purchase Quotation and shall renew automatically unless a 30 day termination notice is provided by either party prior to the end of the then-current term..
8. Termination. The Company may immediately terminate the Agreement by sending a notice to the Customer: (i) upon the failure of the Customer to make a required payment of the Consideration when due; (ii) upon the breach of any of the provisions of the Agreement and the failure to cure such breach within 14 days; (iii) upon the occurrence of any of the following events: (a) a receiver is appointed for either the Customer or its property; (b) the Customer makes a general assignment for the benefit of its creditors; (c) the Customer commences, or has commenced against it, proceedings under any laws of bankruptcy, insolvency or debtor’s relief; or (d) the Customer is liquidated or dissolved.
9. Consequences of Termination.
In all cases of termination, the Services, and any subscription, license, maintenance, support, warranty and all rights under the Agreement or under any applicable law, shall immediately be void, cancelled and revoked.
b. In any event of termination the Company shall choose at its own discretion whether to retrieve the Product or not. For the purpose of retrieving the Product, the Customer hereby grants the Company (or anyone on the Company’s behalf) with an authorization to enter into the Customer’s premises and to take the Product. For the avoidance of doubt, the Customer shall be obligated to complete its payment obligations for the Initial Period. The said right of the Company shall not derogate from the Company’s right to seek any and all other remedies available under applicable law.
- Warranty. The Company makes no warranties; expressed or implied, as to the Product, except as specified in the Company’s Product Warranty attached hereto as ANNEX D.
11. Compliance. The Company makes no promise or representation that the Product shall conform to any federal, state, or local laws, regulations, ordinances, codes or standards. It is the Customer’s responsibility to apply for and to obtain any and all licenses, permits and other authorizations required for the Product.
12. Limitation of Liability; Indemnification. As specified in the Company’s Product Warranty attached hereto as ANNEX D.
13. IP Rights. It is expressly understood and agreed that the Company shall retain all proprietary rights of any kind whatsoever to any invention, software, improvement, creative or design contained in the Product including, but not limited to, all patents rights and all registered and unregistered trademarks, service marks, trade dress, logos, trade names and all common law rights.
15. Notice. All notices and reports under the Agreement shall be in writing and deemed to have been received within: (i) five (5) business days after the date of mailing if sent by registered or certified mail, postage prepaid, with return receipt requested; or (ii) when transmitted by facsimile, provided that a confirmation of transmission is produced by the sending machine and a copy of such facsimile is promptly sent by another means specified in this Section; or (iii) when delivered personally or sent by express courier service, with a written confirmation of such delivery; (iv) when received by electronic mail with a back email confirmation. Notices to customer shall be sent to: Gundersen Lutheran Administrative Services, Inc., Attn: Purchasing NCA1-02, 1900 South Avenue, La Crosse, WI 54601 with copy to: Gundersen Health System, Attn: Legal Department, 1900 South Avenue, La Crosse, WI 54601.
16. Assignment. The Customer may not assign or sublet any interest under the Agreement and may not assign or sublet the Product, without the Company’s prior written consent. The Company may assign or sublet any interest in the Agreement or the Product, in its sole discretion.
17. Entire Agreement and Modification. The Agreement constitutes the entire agreement between the parties. No modification or amendment of the Agreement shall be effective unless such amendment is made in writing and signed by both parties. The Agreement replaces any and all prior agreements between the parties.
18. Governing Law. The Agreement shall be construed in accordance with the laws of the State of NY and the competent courts of NY shall have sole and exclusive jurisdiction over any dispute under the Agreement.
19. Severability. If any provision of the Agreement is held to be illegal, invalid or unenforceable, then such provision shall be limited or eliminated to the minimum extent necessary, and the remainder of the Agreement shall continue in full force and effect.
20. Waiver. The failure of either party to enforce any provision of the Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of the Agreement. Customer may not deduct or set-off any amount due under the Agreement, for any reason whatsoever.
- Federal Audit / Access to Records. Company agrees that until the expiration of four (4) years after furnishing Services pursuant to this Agreement, Company shall make available upon written request of the Secretary of the Department of Health and Human Services (the “Secretary”) or upon request of the U.S. Comptroller General, or any of their duly authorized representatives, this Agreement and the books, documents and records of Company that are necessary to certify the nature and extent of costs of which Customer may properly seek reimbursement. Company further agrees that if Company carries out any of the duties of this Agreement through a subcontract with a value or cost of ten thousand dollars ($10,000) or more over a twelve (12) month period, such subcontract shall contain a clause to the effect that until the expiration of four (4) years after furnishing of such services pursuant to such subcontract, the subcontracting party shall make available, upon written request of the Secretary, or upon request of the U.S. Comptroller General or any of their duly authorized representatives, the subcontract, and the books, documents, and records of such organization that are necessary to verify the nature and extent of costs. Company shall promptly inform Customer of any requests for information made pursuant to this provision.
- Exclusion from State and Federal Health Care Programs.
Both parties represent and warrant that, to the best of each party’s knowledge, both parties and their owners and employees are not excluded from participating in any federal health care programs, as defined under 42 U.S.C. 1320a-7b (f), and to each party’s knowledge, there are no pending or threatened governmental investigations that may lead to such exclusion. Each party agrees to notify the other party of the commencement of any such exclusion or investigation within seven (7) business days of first learning of it. All parties shall have the right to immediately terminate this Agreement upon learning of any such exclusion and shall be kept apprised by the other party or parties of the status of any such investigation.
- Vendor Registration. Company agrees to register with Customer’s vendor management system prior to providing products and/or services and will be responsible for annual credentialing fees. Customer’s vendor management system can be accessed at: https://gundersenhealth.vendormate.com.
- Independent Contractor. Company is performing the services of this contract as an independent contractor and not as an employee, agent, partner, or joint venture with Customer. It is understood and agreed that each party, together with its agents, servants, and employees, is at all times acting as an independent contractor, and that neither has any express or implied authority to assume or create
any obligation or responsibility on behalf of, or in the name of the other party. Company shall satisfy all tax and other governmentally imposed responsibility with regard to its own personnel, including, but not limited to, payment of social security taxes, workers compensation, self-employment taxes, and other payroll taxes.
- Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same Agreement. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
- Refund/Return Policy – All refunds/returns are protected to a (7) day cancellation period whether the product has shipped or not by the Customer from the date of a signed PO. After the Refund/Return Policy expires, the Customer is responsible for the full balance owed for the lease term with or without installation. The Customer is responsible for all return shipping costs. The Refund/Return is void where the product was opened and/or removed from its original box.
End User Subscription License Agreement
IMPORTANT: This EUSLA refers to the Company and all of its related companies (together “EyeClick”) software products which are an integral part of the Product provided to you by the Company under the Agreement together with any related software, game, media, graphic, sound, work and content, and any updates, amendment, improvement or enhancement thereof, which may be provided by EyeClick, at its discretion, and any of the above which may be provided to you by EyeClick in the future (for the purposes of this Annex B, the “Product”). BY INSTALLING AND/OR USING THE PRODUCT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THE AGREEMENT INCLUDING THIS ANNEX B.
- Subscription. EyeClick hereby grants you with a non-exclusive, non-assignable (without right of sublicense), non-transferable, revocable subscription license to use one single copy of the Product, pursuant to the uses of the Product as described in the user manual(s) provided by EyeClick. Any use of the Product shall be made in the usual and customary user environment in which the Product is intended to be used. For clarity, unless otherwise determined in writing by EyeClick, any future game, media, content, etc. provided by EyeClick, shall be subject to this EUSLA and to the terms and conditions of the Agreement.
2. Restrictions. You may not, and may not attempt to: (i) make copies of the Product or any part thereof; (ii) modify or create derivative work of, decompile, disassemble, decrypt, extract, reverse engineer or assemble the Product or any part thereof, or obtain access to the source code of the Product; (iii) remove from the Product any notices of proprietary rights or other product identification contained on or within the Product, or alter or obscure such notices; or (iv) make any joint or group use of the Product, including by way of time sharing or co-use.
3. Open Source Code. The Product includes, by incorporation or usage, certain open source code software and materials which are subject to certain license terms that are located at the websites listed in Schedule A hereto. Schedule B hereto lists certain open source code software, which is not part of the Product, but supports the Product’s operation as external components (the licenses of the open source code software listed in Schedule A and Schedule B shall be referred herein collectively as “Open Source Licenses”). By accepting the terms and conditions of the Agreement, you also accept the terms and conditions of the Open Source Licenses. In the event of any inconsistencies or conflicting provisions between the provisions of the Open Source Licenses and the provisions of the Agreement, the provisions of the Open Source Licenses shall prevail. For clarity, with respect to all of the open source code software distributed under the Lesser General Public License (the “LGPL”), the Product and any part thereof are “works that use the library” and are not “works based on the library” as such terms are defined in the LGPL.
4. Miscellaneous. You may not assign, sublicense or otherwise transfer the rights or license granted hereunder, by agreement or by operation of law, without the prior written consent of the Company. Any assignment in violation of this prohibition is null and void. The Agreement shall inure to the benefit of, and be binding upon, each party’s successors and/or acquirers (by merger, asset or share purchase, or otherwise). If any provision of the Agreement is held to be void or unenforceable, than such provision is herewith amended to the extent necessary for the Agreement to be otherwise enforceable. No failure or delay of a party in exercising any right hereunder shall operate as a waiver thereof, nor will any partial exercise of any right hereunder preclude further exercise. No modification of the Agreement shall be binding, unless in writing and signed by the party to be charged.
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Maintenance and Support
- Error Correction. The Company will provide the Customer with error correction services for errors of the Product’s system components (the ”System”) reported by the Customer to the Company, under the following provisions:
1.1. Definitions: “Error” – means a defect which can be reproduced by the Company and causes the System not to perform substantially in accordance with the specifications as described in the applicable user manual, resulting in the inability to or restriction in the use of the System.
Errors do not include, and the Company will have no responsibility for, any of the following circumstances: (A) the System (or any part thereof) has been modified or repaired by any person or entity other than the Company or the Company’s representatives and agents, unless such person or entity was authorized in advance and in writing by the Company; (B) the System (or any part thereof) has been operated other than in accordance with the any documentation provided by the Company (the “Documentation”); (C) the System (or any part thereof) has been damaged in any manner due to any action of any person or entity other than the Company; (D) the Customer fails to reasonably assist the Company in verifying, reproducing and correcting error conditions (for example, the Customer fails to provide internet connection to the Company’s computer) ;the Company is unable, after using reasonable commercial efforts to verify and reproduce the error condition reported by Customer; (E) failure to provide an installation environment recommended for the System, or failure to operate the System in recommended environment, as described in the Documentation (for example, locations having defective or inadequate power source, static electricity, etc.); (F) any failure of the Customer’s computer operating systems and/or third party’s software and/or hardware which was not provided by the Company and was utilized by the Customer; “Critical Error” – is any Error which causes the System or its critical applications not to function. “Non-Critical Error” – is any Error other than a Critical Error.
1.2. On-Call Visits: The Company will provide on-call support visits (“On-Call Visits”) 24 hours a day 7 days a week (including weekends and holidays), for Errors reported by the Customer, provided that such Errors could not be corrected via the “hotline” (as detailed below), as follows: (i) For Critical Errors – An On-Call Visit shall be provided within forty-eight (48) hours from the time the Company received the report of such Error (except for calls during weekends and holidays); (ii) For Non-Critical Errors – An On-Call Visit shall be provided within up to seventy two (72) hours from the time the Company received the report of such Error. Error correction may include a temporary work-around, patch or bypass supplied by the Company, in order to diminish or avoid the effect of the Error. * In major metropolitan areas. In remote areas the On-Call visit response time may be longer and dependent on the coverage of the local tech partner (for complete coverage and response time please contact EyeClick at firstname.lastname@example.org)
1.3. “Hotline”: The Company’s qualified members of its technical support staff shall be available by telephone (+914-273-4634) and e-mail (email@example.com) (or at any other phone number and/or e-mail address as will be communicated by the Company to the Customer from time to time) every day on normal business hours, to provide Error correction services. If the Customer reports on the occurrence of multiple Errors, he or she may request that the Company resolve such Errors in the order of priority that the Company shall designate.
1.4. Remote access and information: Customer will provide the Company with internet remote access to the System, at Customer’s own cost. Customer will provide the Company with all relevant information with respect to the Error within a reasonable time frame.
- Updates and Enhancement: The Company shall provide regular rotating updates and enhancements to the Product content as well as its software where applicable.
This limited warranty (the “Warranty”) constitutes an integral part of the Agreement.
IMPORTANT: By using your EyeClick Product you agree to be bounded by the terms of the Warranty as set out below. Do not use your product until you have read the terms of the Warranty. If you do not accept and agree to the terms of the Warranty, do not use the product.
WHAT IS COVERED BY THIS WARRANTY?
EyeClick warrants the EyeClick Product from the date of delivery including:
- Projector Lamp
- Amplifier, Speakers, Cables and Mounting Unit
- Software: You shall be entitled to free software updates released by EyeClick. Upgrades shall be available upon request and additional quote and fee.
The Warranty shall apply only for the term described in Sections 7-8 of ANNEX A, and provided that the Customer pays the Consideration and fulfills his obligations under the Agreement (the “Warranty Period“). Notwithstanding the aforesaid, the Warranty shall apply only when the Eyeclick Product used in the manner for which it was designed, and when conforms substantially to its end-user manual and other documentation delivered with the Product and prevailing at time of delivery.
WHAT IS NOT COVERED BY THIS WARRANTY?
EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY PROVIDED ABOVE, EYECLICK MAKES NO WARRANTIES WITH RESPECT TO ANY PRODUCT AND DISCLAIMS ALL STATUTORY AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. EyeClick does not warrant that the operation of the EyeClick Product will be uninterrupted or error-free. EyeClick is not responsible for damage arising from failure to follow instructions relating to the EyeClick Product’s use, or from maintenance or other services not performed by EyeClick or an EyeClick Authorized Service Provider (“EASP“). THIS WARRANTY DOES NOT APPLY: (a) to consumable parts, such as batteries or protective coatings that are designed to diminish over time, unless failure has occurred due to a defect in materials or workmanship; (b) to cosmetic damage, including but not limited to scratches, dents and broken plastic on ports; (c) to damage caused by use with another product; (d) to damage caused by accident, abuse, misuse, liquid contact, fire, earthquake or other external cause; (e) to damage caused by operating the EyeClick Product outside the EyeClick’s published guidelines, including, but not limited to the change of the location of EyeClick’s Product after installation; (f) to damage caused by service (including upgrades and expansions) performed by anyone who is not a representative of EyeClick or an EASP; (g) to an EyeClick Product that has been modified to alter functionality or capability without the written permission of EyeClick; (h) to defects caused by normal wear and tear or otherwise due to the normal aging of the EyeClick Product, or (i) if any serial number has been removed or defaced from the EyeClick Product.
Before receiving Warranty service, EyeClick or its agents may require that you furnish proof of payment details, respond to questions designed to assist with diagnosing the service required, and follow EyeClick’s procedures for obtaining Warranty service.
EyeClick may install system software updates as part of Warranty service that will prevent the EyeClick Product from reverting to an earlier version of the system software.
WHAT WILL EYECLICK DO IN THE EVENT THE WARRANTY IS BREACHED?
If during the Warranty Period you submit a valid claim to EyeClick or to an EASP, EyeClick may, at its sole discretion, use reasonable commercial efforts to either(i) repair the EyeClick Product or part of it, using new or previously used parts that are equivalent to new in performance and reliability, or (ii) replace the Eyeclick Product or part of it, with a device that is at least functionally equivalent to the EyeClick Product and is formed from new and/or previously used parts that are equivalent to new parts, in performance and reliability. EyeClick reserves the right to change the method by which EyeClick may provide Warranty service to you, and your EyeClick Product’s eligibility to receive a particular method of service.
HOW TO OBTAIN WARRANTY SERVICE?
If in the scope of the Warranty Period, Please contact an EyeClick representative at firstname.lastname@example.org or an EASP. An EyeClick representative or an EASP will help determine whether your EyeClick Product requires service and, if it does, will inform you how EyeClick will provide it.
LIMITATION OF LIABILITY
EXCEPT AS PROVIDED IN THIS WARRANTY AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, EYECLICK SHALL NOT BE LAIBLEUNDER ANY LEGAL, CONTRACTUAL OR EQUITABLE THEORY (WHETHER IN CONTRACT, TORT, INDEMNITY OR OTHERWISE) FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY BREACH OF WARRANTY OR CONDITION, OR UNDER ANY OTHER LEGAL THEORY, INCLUDING BUT NOT LIMITED TO LOSS OF USE; LOSS OF REVENUE; LOSS OF ACTUAL OR ANTICIPATED PROFITS (INCLUDING LOSS OF PROFITS ON CONTRACTS); LOSS OF THE USE OF MONEY; LOSS OF ANTICIPATED SAVINGS; LOSS OF BUSINESS; LOSS OF OPPORTUNITY; LOSS OF GOODWILL; LOSS OF REPUTATION; LOSS OF, DAMAGE TO, COMPROMISE OR CORRUPTION OF DATA; OR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE HOWSOEVER CAUSED INCLUDING THE REPLACEMENT OF EQUIPMENT AND PROPERTY, ANY COSTS OF RECOVERING, PROGRAMMING, OR REPRODUCING ANY PROGRAM OR DATA STORED IN OR USED WITH THE EYECLICK PRODUCT OR ANY FAILURE TO MAINTAIN THE CONFIDENTIALITY OF INFORMATION STORED ON THE EYECLICK PRODUCT.
Company will defend, at its expense, a third-party action, suit or proceeding against Customer (“Claim”) to the extent such Claim is based upon an allegation that a Product, as of its delivery date under this Agreement, infringes a valid United States patent or copyright or misappropriates a third party’s trade secret. Company will indemnify Customer for any judgments, settlements and reasonable attorney’s fees resulting from a Claim as provided in this Section. Company, at its own expense and option may: (1) procure for Customer the right to continue use of the Product; (2) replace the Product with a non-infringing product; or (3) refund to Customer a pro-rated portion of the applicable Fees for the Product based on a linear depreciation monthly over the remaining term, in which case Customer will return to Company the Product and cease all use of it.
You shall hold EyeClick harmless and indemnify it against any and all costs, expenses or damages, including, without limitation, attorney’s fees, arising from, or relating to, any claims or causes of actions, tort or otherwise, which may be asserted against it, by any third person or entity resulting from any act or omission conducted by you or any other cause of action, arising out of, or in connection with the subsequent sale of the Products by you, your agents or affiliates, during and post the Warranty Period.
No EyeClick reseller, agent, or employee is authorized to make any modification, extension, or addition to this Warranty. If any term is held to be unlawful or unenforceable, the legality or enforceability of the remaining terms shall not be affected or impaired.
No waiver of any default or beach, by any party, shall be deemed to be a waiver of any subsequent default or breach, by that party.