References herein to “Products” mean the Vscan products (including equipment and software) purchased by you (“Customer”) pursuant to this Agreement (“Agreement”).

1.              General Terms

1.1.          Contract Formation.  This Agreement exclusively governs GE Healthcare’s sale, and the purchase and use by Customer, of the Products through e-commerce and shall not apply to any other GE Healthcare sales for the Products by means outside of this e-commerce site or any other GE Healthcare product sales.  This Agreement is in addition to GE Healthcare’s website terms and conditions which are found at the following link: http://www.gehealthcare.com/terms.html (“Website Terms and Conditions”), which govern Customer’s use of the GE Healthcare website.  In the event of any conflict between this Agreement and the Website Terms and Conditions with regard to Customer’s purchase and use of the Products, this Agreement shall prevail.  Customer is encouraged to print and retain a copy of this Agreement for Customer’s files and future reference.

Upon Customer’s receipt of GE Healthcare’s confirmation that Customer’s online order has been accepted, this Agreement shall constitute the entire agreement relating to the purchase of the Products.  The parties agree that they have not relied on any oral or written terms, conditions, representations or warranties outside those expressly stated or incorporated by reference in this Agreement in making their decisions to enter into this Agreement.  No agreement or understanding, oral or written, in any way purporting to modify these terms and conditions shall be binding on GE Healthcare unless hereafter made in writing and signed by GE Healthcare’s authorized representative.  Customer is hereby notified of GE Healthcare’s objection to any terms inconsistent with this Agreement and to any other terms proposed by Customer in accepting this Agreement.  Neither GE Healthcare’s subsequent lack of objection to any such terms, nor the delivery of the Products, shall constitute an agreement by GE Healthcare to any such terms.

1.2.          Confidentiality.  Each party will treat the terms of this Agreement and the other party's written, proprietary business information as confidential if marked as confidential or proprietary, provided that each party shall be entitled to share the confidential information with their respective employees, subsidiaries, affiliates and contractors (provided they are not competitors of the disclosing party) who have a need to know the confidential information; provided, however, the sharing party shall remain responsible at all times for the compliance with the terms of this Agreement by any such recipients.  Notwithstanding the foregoing, Customer will treat GE Healthcare (and GE Healthcare’s third party vendors’) software and technical information as confidential information whether or not marked as confidential and shall not use or disclose to any third parties any such confidential information except as specifically permitted in this Agreement or as required by law (with reasonable prior notice to GE Healthcare).  The receiving party shall have no obligations with respect to any information which (i) is or becomes within the public domain through no act of the receiving party in breach of this Agreement, (ii) was in the possession of the receiving party prior to its disclosure or transfer and the receiving party can so prove, (iii) is independently developed by the receiving party and the receiving party can so prove, or (iv) is received from another source without any restriction on use or disclosure.

1.3.          Governing Law.  The law of the Province or Territory where the Product is delivered will govern this Agreement.

1.4.          Force Majeure.  Neither party is liable for delays or failures in performance (other than payment obligations) under this Agreement due to a cause beyond its reasonable control. In the event of such delay, the time for performance shall be extended as reasonably necessary to enable performance.

1.5.          Assignment.  Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, that either party may transfer and assign this Agreement without the other party's consent to any person or entity (except to a GE Healthcare competitor) that is an affiliate of such party or that acquires substantially all of the stock or assets of such party’s applicable business if any such assignees agree, in writing, to be bound by the terms of this Agreement.  Subject to such limitation, this Agreement shall be binding upon and enure to the benefit of the parties and their respective successors and permitted assigns.  Any attempted assignment in derogation of this Section will be null and void.

1.6.          Amendment; Waiver; Survival.  This Agreement may be amended only in writing signed by both parties.  Any failure to enforce any provision of this Agreement is not a waiver of that provision or of either party’s right to later enforce each and every provision.  The terms of this Agreement that by their nature are intended to survive its expiration (such as the confidentiality provisions included herein) will continue in full force and effect after its expiration.

1.7.          Termination.  If either party materially breaches this Agreement and the other party seeks to terminate this Agreement for such breach, such other party shall notify the breaching party in writing, setting out the breach, and the breaching party will have sixty (60) days following receipt of such notice to remedy the breach.  If the breaching party fails to remedy the breach during that period, the other party may terminate this Agreement by written notice to the breaching party.  For the avoidance of doubt, this Agreement is not terminable for convenience and may only be terminated in accordance with this Agreement.  If GE Healthcare determines in good faith at any time that there are legal or regulatory compliance issues with this Agreement, if any, GE Healthcare may terminate this Agreement (including warranty services hereunder) immediately upon written notice to Customer.

Obligation to Provide Accurate and Current Information; Consent to Use Thereof.  Customer agrees to provide, and hereby represents and warrants to GE Healthcare that Customer has provided and will continue to provide, accurate and complete information to GE Healthcare with regard to Customer’s registration to use the GE Healthcare website and Customer’s purchase and use of the Products.  Customer will promptly furnish updates to such information to GE Healthcare, as applicable, including in the event Customer (if an individual) moves to another organization.  Customer’s information may be processed, including used, disclosed, retained, stored, and destroyed outside of the province or territory in which Customer resides and/or in the United States by GE Healthcare, an affiliate and/or their third party service providers in connection with GE Healthcare’s fulfillment of Customer’s order, GE Healthcare’s support of the Products (including communicating with Customer regarding use of the Product and any Product-related notices and announcements), and as otherwise provided in the GE Healthcare Ecommerce Privacy Statement which can be found at the following link: http://vscancanada.gehealthcare.com/pages/ge-healthcare-s-ecommerce-privacy-statement. Customer hereby consents to the processing of Customer’s information, including the collection, use, storage, retention, destruction, and disclosure of such information by GE Healthcare, its affiliates and their service providers as set forth in this Agreement and in GE Healthcare’s Ecommerce Privacy Statement. 

2.              Compliance

2.1.          Generally.  This Agreement is subject to GE Healthcare’s on-going determination that Customer and this Agreement comply with all applicable laws and regulations, including those relating to workplace safety, Health Canada matters, compliance with competition laws, export/import control and money laundering prevention.  Customer represents that it is purchasing the Products for its own use consistent with the terms of this Agreement and that it does not intend to re-sell the Products to any other party or to export the Products outside the country to which GE Healthcare delivers the Products.

2.2.          Use for Clinical Diagnostic Purposes Only.  CUSTOMER WILL USE THE PRODUCTS ONLY FOR CLINICAL DIAGNOSTIC PURPOSES IN THE DIAGNOSIS OR TREATMENT OF A DISEASE OR CONDITION, AND NOT FOR ANY ENTERTAINMENT, RECREATIONAL OR AMUSEMENT PURPOSES.  GE HEALTHCARE WILL NOT DELIVER, SERVICE OR PROVIDE TRAINING ON USE OF THE PRODUCTS IF GE HEALTHCARE DISCOVERS THE PRODUCTS HAVE BEEN OR ARE INTENDED TO BE USED FOR ANY NON-CLINICAL PURPOSE.  SUCH USE OR INTENDED USE OF THE PRODUCTS FOR NON-CLINICAL PURPOSES WILL VOID ANY APPLICABLE PRODUCT WARRANTY.

2.3.          Promotion of Vscan Consistent With Cleared Indications for Use.  Health Canada requires that the promotion and marketing of the Product be consistent with the clinical applications and labeling for which the Product has been cleared by Health Canada.  The Product is indicated for ultrasound imaging, measurement and analysis of the human body in clinical applications of Foetal/OB; Abdominal; Paediatric; Urology; Cardiac (adult and paediatric); Peripheral Vessel and Thoracic/Pleural motion and fluid detection.  All other uses of the Product are considered off-label, including, but not limited to, Comprehensive Peripheral Vascular (e.g., carotids); Musculoskeletal; “Small Parts” (e.g., thyroids, breast, scrotum); and Transcranial Doppler.

2.4.          Cost Reporting.  Customer represents and warrants that it shall comply with all applicable laws and regulations with respect to any discounts Customer may receive under this Agreement in addition to any price reductions of an item (including a free item) which were obtained as part of a warranty under this Agreement.  Customer agrees that, if Customer is required to report its costs on a cost report, then (i) the discount must be based on purchases of the same good bought within a fiscal year; (ii) Customer must claim the benefit in the fiscal year in which the discount is earned or in the following year; (iii) Customer must fully and accurately report the discount in the applicable cost report; and (iv) Customer must provide, upon request, certain information required to be provided to Customer by GE Healthcare as a seller or offeror, as appropriate.  If Customer is an individual or entity in whose name a claim or request for payment is submitted for the discounted items, the discount must be made at the time of the sale of the good; and Customer must provide, upon request, certain information required to be provided to Customer by GE Healthcare as a seller or offeror, as appropriate.  GE Healthcare agrees to comply with the applicable requirements for sellers or offerors under all applicable laws and regulations, as appropriate.

2.5.          Site Access Control and Network Security.  Customer shall be solely responsible for establishing and maintaining security, virus protection, backup and disaster recovery plans for any data, images, software or equipment.  GE Healthcare shall have no obligation or liability with respect to the recovery of lost data or images.  Customer shall comply with all applicable laws and regulations related to site access control.

2.6.          Environmental Health and Safety.  Customer shall provide and maintain a suitable, safe and hazard-free location and environment for the GE Healthcare Products in material compliance with any written requirements provided by GE Healthcare, perform GE Healthcare recommended routine maintenance and operator adjustments, and ensure that any non-GE Healthcare provided service is performed by, and GE Healthcare Products are used by, qualified personnel in accordance with applicable user documentation.  GE Healthcare shall have no obligation to perform warranty services until Customer has complied with its obligations under this Section.

2.7.          GE Healthcare-Supplied Parts.  GE Healthcare can make no assurances that Product performance will not be affected by the use of non-GE Healthcare-supplied parts.  In some instances, use of non-GE Healthcare-supplied parts may affect Product performance or functionality.

2.8.          Training.  Customer shall receive access to GE Healthcare’s standard online education package(s) as made available on the Vscan web portal after purchase of the Product and after on-line activation has occurred.

2.9.          Medical Diagnosis and Treatment.  All clinical and medical treatment and diagnostic decisions are the responsibility of Customer and its professional healthcare providers.

3.              Disputes; Liability; and Indemnity

3.1.          Waiver of Jury Trial.  EACH PARTY EXPRESSLY WAIVES ALL RIGHTS TO A JURY TRIAL IN CONNECTION WITH ANY DISPUTE ARISING UNDER THIS AGREEMENT.

3.2.          Limitation of Liability.  GE HEALTHCARE'S (AND ITS REPRESENTATIVES’) LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE PRICE FOR THE PRODUCT THAT IS THE BASIS FOR THE CLAIM.  NEITHER CUSTOMER NOR GE HEALTHCARE (NOR THEIR RESPECTIVE REPRESENTATIVES) SHALL BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT (OR OTHERWISE IN CONNECTION WITH THE PRODUCTS) FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF PROFITS, REVENUE, TIME, OPPORTUNITY OR DATA, OR OTHER SIMILAR DAMAGES, WHETHER IN AN ACTION IN CONTRACT, TORT, BREACH OF WARRANTY, PRODUCT LIABILITY, STATUTE, EQUITY OR OTHERWISE.  THE LIMITATION OF LIABILITY AND EXCLUSION OF DAMAGES SHALL APPLY EVEN IF THE LIMITED REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.

3.3.          IP Indemnification.  GE Healthcare will defend, indemnify and hold harmless Customer from any third party claims for infringement of intellectual property rights arising from Customer’s use of GE Healthcare manufactured equipment and/or GE Healthcare proprietary software embedded in or otherwise furnished with the Products in accordance with their specifications and within the license scope granted in this Agreement.  If any such claim materially interferes with Customer’s use of such equipment and/or software, GE Healthcare shall, at its option: (i) substitute functionally equivalent non-infringing products; (ii) modify the infringing Product so that it no longer infringes but remains functionally equivalent; (iii) obtain for Customer at GE Healthcare’s expense the right to continue to use the infringing Product; or (iv) if the foregoing are not commercially reasonable, refund to Customer the purchase price, as depreciated (based on five (5) year straight-line depreciation), for the infringing Product.  Any such claims arising from Customer’s use of such infringing Product after GE Healthcare has notified Customer to discontinue use of such infringing Product and offered one of the remedies set forth in clauses (i) through (iv) above are the sole responsibility of Customer.  This Section represents Customer’s sole and exclusive remedy (and GE Healthcare’s sole and exclusive liability) regarding any infringement claim associated with such infringing Product.  The above indemnification obligation is conditional upon Customer providing GE Healthcare prompt written notice of the infringement claim after receiving notice of such claim, allowing GE Healthcare to control the defense of such claim, and reasonably cooperating with GE Healthcare in such defense.  Notwithstanding any other provision in this Agreement, GE Healthcare shall not have any obligation to Customer hereunder for infringement claims based on or resulting from: (a) use of such infringing Product in combination with any computer software, tools, hardware, equipment, materials, or services, not furnished or authorized in writing for use by GE Healthcare; (b) use of such infringing Product in a manner or environment or for any purpose for which GE Healthcare did not design or license it, or in violation of GE Healthcare’s use instructions; or (c) any modification of such infringing Product by Customer or any third party.  GE Healthcare shall not be responsible for any compromise or settlement or claim made by Customer without GE Healthcare’s written consent.  This indemnification obligation is expressly limited to the GE Healthcare manufactured equipment and/or GE Healthcare proprietary software furnished by GE Healthcare pursuant to this Agreement.

4.              Commercial Logistics

4.1           Transportation, Title and Risk of Loss.  Unless otherwise indicated in the Agreement, shipping terms are FOB Destination.  Title and risk of loss to the Product passes to Customer upon delivery to Customer’s designated delivery location.  Software is licensed to Customer, not sold; no title to or other ownership interest in such software passes to Customer.

 

4.2    Delivery.  When feasible, GE Healthcare reserves the right to make delivery in instalments.  Delivery dates are approximate.  For GE Healthcare software or documentation, delivery means the first to occur of: (i) communication to Customer through electronic means, that allows Customer to take possession of the first copy or product master, or (ii) delivery to Customer’s designated delivery location.

4.3    Installation. No installation services are provided for the Product.

4.4    Pre-Owned, Refurbished and Demonstration Products.  Products identified as either pre-owned, refurbished, remanufactured or demonstration Products have been previously owned and/or used (“Used Products”); they are not new.  When delivered to Customer, such Used Products may have received mechanical, electrical, and/or cosmetic reconditioning, as necessary, and will meet their original specifications.  Since Used Products may be offered simultaneously to several customers, their sale to Customer is subject to their continued availability at the time Customer offers to purchase such Used Products.  If the Used Products are no longer available, (i) GE Healthcare will attempt to identify other Used Products in its inventory that meet Customer's needs, and (ii) if substitute Used Products are not acceptable to Customer, GE Healthcare will cancel the order and refund any deposit Customer has paid for such Products.

4.5    Network.  Customer is solely responsible for ensuring that Customer’s network is adequate for the proper operation and performance of the Products and otherwise meets GE Healthcare’s written network configuration requirements.  This responsibility includes providing and maintaining connectivity to the Products (modem line, internet connection, VPN persistent access, broadband internet connection, or other secure remote access reasonably requested by GE Healthcare) to perform support services and meet service levels, including remote diagnostic, monitoring and repair services.

4.6    Acceptance.  Customer shall be deemed to have accepted a Product delivered by GE Healthcare under this Agreement five (5) days after delivery of the Product to Customer.

4.7    Taxes.  Customer shall be solely responsible for any and all applicable sales, use, excise, value-added, services, consumption and other taxes and duties payable to any taxing authority in connection with Customer’s purchase and use of the Product.

5.              Software License

5.1.          License Grant.  GE Healthcare grants to Customer a non-exclusive, non-transferable license to use for Customer’s internal business purposes the GE Healthcare software, third-party software and Documentation at the location identified in the Agreement, subject to the license scope and other restrictions set forth in this Agreement.  “Documentation” means the GE Healthcare user manuals, on-line help functions, technical specifications and user instructions regarding the operation, installation and use of the software as made available by GE Healthcare to Customer.  Customer may only use third-party software provided by GE Healthcare together with the GE Healthcare software and will comply with all third-party software license terms included in any click or shrink wrap license or of which GE Healthcare otherwise makes Customer aware.  To the extent permitted by applicable law, licensors of third-party software shall be third-party beneficiaries of this Agreement with respect to third-party software sublicensed under this Agreement.  Customer may permit its employees, agents, independent contractors and healthcare providers with privileges at Customer’s facilities to use the software and Documentation; provided, however, that Customer shall be responsible for any acts of such third parties that are inconsistent with this Agreement.  Notwithstanding the foregoing, independent contractors that supply products comparable to the software shall be provided access to the software only with GE Healthcare’s prior written consent and subject to any conditions GE Healthcare deems appropriate to protect its confidential and proprietary information.

5.2.          Additional License Terms.  Without GE Healthcare’s prior written consent, Customer may not: (i) copy, sublicense, distribute, rent, lease, loan, resell, modify or translate the software or create improvements, derivatives or other works based thereon, except that to the extent applicable, the software may be configured as specifically permitted in the Documentation; (ii) directly or indirectly decompile, disassemble, reverse engineer or otherwise attempt to learn the source code, structure, algorithms or ideas underlying the software; (iii) provide service bureau, time share or subscription services based on the software; (iv) remove, obscure or modify any markings, labels or any notice of the proprietary rights, including copyright, patent and trademark notices of GE Healthcare or its licensors; (v) electronically transfer the software outside Customer’s intranet or network dedicated for the software, unless otherwise authorized in writing by GE Healthcare; or (vi) publicly release the results of any testing or benchmarking of the software without the prior written consent of GE Healthcare.  Customer may transfer authorized copies of the software, and Documentation to a party that purchases or otherwise acquires the Products and accepts any applicable license terms, except for software and Documentation that are (a) not a part of the base system standard operating software or Documentation for the Products and (b) generally provided by GE Healthcare to its customers for a separate fee or charge.  Advanced service software is subject to a separate fee and eligibility criteria and licensed under a separate agreement with GE Healthcare.

5.3.          Remedies.  Customer agrees that a violation of GE Healthcare’s license, confidentiality or intellectual property rights will cause irreparable harm to GE Healthcare for which the award of money damages alone are inadequate.  In the event of any breach of this Section 5 or Customer’s confidentiality obligations under this Agreement, GE Healthcare shall be entitled to seek injunctive relief in addition to immediately terminating the license granted herein and requiring that Customer cease use of the software and Documentation and return all copies of the Documentation and stand-alone software in any media in addition to seeking any other legal or equitable remedies available to GE Healthcare.  This paragraph shall survive the termination of this Agreement.

6.              Product Returns

Customer shall not have any right to return Products for a refund after delivery except for products shipped in error that are different from the Products listed in the Quotation.

7.              Limited Warranty

7.1.           Warranted Product.  This limited warranty covers the purchase and use of GE Healthcare’s Vscan systems only.

7.2.           Warranty Scope.  GE Healthcare warrants that its services will be performed by trained individuals in a professional, workman-like manner.  GE Healthcare will promptly re-perform any non-conforming services for no charge as long as Customer provides reasonably prompt written notice to GE Healthcare.  The foregoing service remedy, together with any remedy provided herein, are Customer’s sole and exclusive remedies (and GE Healthcare’s sole and exclusive liability) for warranty claims.  These exclusive remedies shall not have failed of their essential purpose as long as GE Healthcare remains willing to repair or replace defective Products or re-perform any non-conforming services for no charge, as applicable, within a commercially reasonable time after being notified of Customer’s warranty claim.  NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OR CONDITIONS OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND DATA ACCURACY, WILL APPLY.

7.3.           Warranty Period.  Except as indicated otherwise below, GE Healthcare warrants new and/or demonstration Vscan systems will be free from defects in title and that for thirty-six (36) months from the Warranty Commencement Date (as defined below) (i) the Vscan system will be free from defects in material and workmanship under normal use and service and (ii) the Vscan system will perform substantially in accordance with GE Healthcare’s written technical specifications for the Vscan system (as such specifications exist on the date the Vscan system is shipped) (the “Specifications”).  GE Healthcare may use refurbished parts in Vscan systems as long as it uses the same quality control procedures and warranties as for new Vscan systems.  Any part for which GE Healthcare has supplied a replacement shall become GE Healthcare property.   This warranty period applies to new Vscan systems and does not apply to Vscan Version 1.1 demonstration systems, accessories and supplies, the Vscan system battery and/or Pre-Owned GoldSeal Vscan systems.

7.4.           Vscan Version 1.1 Demonstration Systems Warranty.  The warranty period for Vscan Version 1.1 demonstration systems (“Vscan Version 1.1”) is twelve (12) months from the Warranty Commencement Date. 

7.5.           Vscan Lithium Polymer Battery Warranty. The warranty for the Vscan Lithium Polymer battery included in the purchase of the Vscan system is twelve (12) months from Warranty Commencement Date.

7.6.           Pre-Owned GoldSeal Vscan Warranty. The warranty for pre-owned GoldSeal Vscan systems is twelve (12) months from the Warranty Commencement Date.  Warranty service is only offered at a GE Healthcare repair facility (“GE Healthcare Service Depot”) for pre-owned GoldSeal Vscan systems.

7.7.           Vscan Accessories/Supplies.  Unless otherwise specified herein, the warranty for all accessories and/or supplies purchased for the Vscan system is six (6) months.  GE Healthcare will provide for the exchange of non-conforming accessories and supplies, which Customer returns to GE Healthcare during the warranty period.  Note:  Installation, parts, applications training, and on-site service for any accessories and/or supplies provided under the warranty is the Customer’s responsibility.

7.8.          Warranty Commencement. Unless expressly provided otherwise in the applicable GE Healthcare Quotation, the warranty period begins upon Vscan system activation (the “Warranty Commencement Date”).  This warranty covers both parts and labour and is available only to end-users that purchase the Vscan system from GE Healthcare or its authorized distributors and is not transferrable to any third party without the prior written consent of GE Healthcare.

7.9.          Remedies.  For any eligible Product, standard warranty includes either repair at a GE Healthcare Service Depot (“Repaired System”) or replacement with a new Product (“Replacement System”) of the same model and version of the originally purchased Product. The service delivery method will be decided at GE Healthcare’s discretion.  THE BALANCE OF THE WARRANTY PERIOD FOR ANY REPAIRED SYSTEM OR ANY REPLACEMENT SYSTEM WILL BE THE REMAINING TERM OF THE WARRANTY APPLICABLE TO THE ORIGINALLY PURCHASED PRODUCT AT THE TIME OF SERVICE. Customers receiving a Replacement System must provide a purchase order or credit card before GE Healthcare will ship the Replacement System to the Customer. Any Customer receiving a Replacement System under this Vscan warranty must return the defective Product to GE Healthcare within five (5) days of receipt of the Replacement System.  Failure to return the defective Product to GE Healthcare will result in the Customer being charged the full list price of the Replacement System.

If GE Healthcare decides to repair the Customer’s Product at an authorized GE Healthcare Service Depot, GE Healthcare will perform the repair within five (5) business days after receipt of the Product, excluding GE Healthcare holidays.  In addition, GE Healthcare technical support is available via telephone from 8:00 am to 5:00 pm local time, Monday–Friday, excluding GE Healthcare holidays.  Warranty claims for the Product should be directed through GE CARES at 1-800-668-0732. IN SOME INSTANCES, GE HEALTHCARE WILL PERFORM SERVICE VIA A SECURE, REMOTE CONNECTION TO A GE HEALTHCARE ONLINE CENTER.

7.9    Limitations. GE Healthcare shall not have any obligation to Customer hereunder if the warranty claim results from or arises out of: (i) the use of the Product in combination with any software, tools, hardware, equipment, supplies, accessories or any other materials or services not furnished by GE Healthcare or recommended in writing by GE Healthcare; (ii) the use of the Product in a manner or environment, or for any purpose, for which GE Healthcare did not design or license it, or in violation of GE Healthcare’s recommendations or instructions on use; (iii) any alteration, modification or enhancement of the Product by Customer or any third party not authorized or approved in writing by GE Healthcare, including the alteration or removal of the Product’s serial number; or (iv) any warranty claim resulting from a lost or stolen Product.  This warranty does not cover the Product to the extent it is used in any country other than the Canada (unless GE Healthcare expressly agrees otherwise in writing).  GE Healthcare does not guarantee that licensed software will operate without error or interruption.

      In addition, these warranties do not cover:  (i) any defect or deficiency (including failure to conform to Specifications and/or Documentation, as applicable) that results, in whole or in part, from any improper storage or handling (including the immersion of the Product in any liquid), failure to maintain the Product in the manner described in any applicable instructions or specifications, inadequate back-up or virus protection or any cause external to the Product or beyond GE Healthcare’s reasonable control, including, but not limited to, power failure and failure to keep Customer’s site clean and free of dust, sand and other particles or debris; (ii) any damage caused by normal wear and tear and/or aging of the Product; (iii) expendable supply items; (iv) cracks in the housing of the Product or associated probe; (v) any failure of the Product to use or correctly process dates; and (vi) Products not listed in GE Healthcare’s Accessories and/or Supplies catalogues at the time of sale and all service manuals, all of which are provided “AS IS”.

      Furthermore, GE Healthcare shall not have any obligation to Customer hereunder for payment or reimbursement of any labour or facility costs incurred by Customer arising from the repair or replacement of the Product or any associated parts.

      If, upon arrival of the Product at the GE Healthcare Service Depot, GE Healthcare determines that the damage to the Product was the result of any of the above, GE Healthcare will decline the warranty service request and contact the Customer regarding charges for servicing such Product.  In cases where GE Healthcare has sent the Customer a Replacement System in advance, the purchase order or credit card provided by Customer will be billed for any required corrective service work.

7.10   Customer Responsibilities. It is the responsibility of Customer to ensure that any information of an identifiable person, including without limitation all personal information and personal health information as defined in the Personal Information Protection and Electronic Documents Act (Canada) and the Personal Health Information Protection Act, 2004 (Ontario) and other similar applicable provincial privacy legislation (“Personal Information”)  is removed from the Product before the Product is shipped to a GE Healthcare Service Depot for repair or replacement (refer to Chapter 3 of the Vscan product user manual for further instructions).  Customer covenants that it will remove all Personal Information from the Product and agrees to indemnify and hold harmless GE Healthcare, its directors, officers, servants, employees and agents, from any and all claims, damages, losses, causes of action, demands, judgments and expenses whatsoever arising out of or relating to Personal Information that is not removed from the Product.  The parties agree that GE Healthcare shall have no obligations, nor shall GE Healthcare incur any liability, whatsoever in connection with any Personal Information not properly removed from the Product by Customer.

It is further the responsibility of Customer to ensure that the Product and any related probes or attachments are clean and free of bodily fluids and other material that may have the potential to carry disease prior to shipment to any GE Healthcare Service Depot.

8.              Language, Receipt of Agreement. 

The parties have expressly required that this Agreement and all related documents be drafted in English.  Les parties confirment qu'elles ont exigé que ce contrat et tous documents s'y rattachant soient rédigés en anglais. Each party acknowledges receipt of a copy of this Agreement.