Stryker PINPOINT PC9000, Operator'S Manual

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3.2 Disclaimer . THE WARRANTY IN THIS SECTION 3 IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY
QUALITY, ACCURACY, AND ANY WARRANTIES THAT MAY ARISE OUT OF COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. Novadaq does not warrant that the
Program will operate in combination with any hardware, software, systems, data, imaging agent, or other
components or parts other than PINPOINT System operated with an imaging agent provided or approved by
Novadaq or a supplier authorized by Novadaq, except as expressly specified in the Documentation. Novadaq
does not warrant that the operation of the Program will be uninterrupted or error-free.
3.3 Exclusive Remedies . You must report to Novadaq or a supplier authorized by Novadaq, pursuant to the notice
provision of this Agreement, any breach of the warranty specified in Section 3.1 during the relevant warranty
period. Your sole and
exclusive remedies, and Novadaq’s entire liability, for such a reported breach will be for
Novadaq or a supplier authorized by Novadaq to correct or provide a reasonable workaround for Program
errors that caused the breach of warranty. If there is a material, bona fide claim of infringement,
misappropriation, or violation of any third party intellectual property right in connection with the Program,
Novadaq shall promptly (i) procure for You the right to continue using the Program, or (ii) replace or modify the
Program to make it non-infringing.
3.4 Limitations . NOVADAQ WILL HAVE NO OBLIGATION OR LIABILITY WHATSOEVER UNDER THIS
AGREEMENT (INCLUDING SECTION 3.3) OR OTHERWISE FOR ANY BREACH OF WARRANTY OR
ADVERSE EVENT DUE TO ABUSE, MISUSE, ALTERATION, NEGLECT OR ACCIDENTAL DAMAGE OF
THE PROGRAM OR THE PINPOINT SYSTEM; THE UNAUTHORIZED REPAIR, MODIFICATION OR
INSTALLATION OF THE PROGRAM OR PINPOINT SYSTEM; OR THE USE OR ATTEMPTED USE OF ANY
SOFTWARE, HARDWARE, SYSTEMS, DATA, IMAGING AGENT OR OTHER COMPONENTS OR PARTS
NOT PROVIDED OR APPROVED BY NOVADAQ OR A SUPPLIER AUTHORIZED BY NOVADAQ IN
CONNECTION WITH THE PROGRAM OR THE PINPOINT SYSTEM. Replacement or repair of a Program
does not extend its warranty period beyond the original warranty expiration date.
3.5 No Support . Novadaq is not obligated to offer any maintenance or support services to You in relation to the
Program other than as specified in Section 3.3. Novadaq or its authorized supplier may voluntarily and at its
sole discretion offer such support to You.
4. TERMINATION
This Agreement is effective until terminated. Novadaq may terminate this Agreement upon Your breach of any
of the provisions hereof by giving sixty (60) days’ written notice identifying a breach of the terms of the
Agreement by You and giving You the opportunity to cure within the sixty (60) day period. Either party may
immediately terminate the Agreement upon the other’s dissolution, insolvency, receivership, assignment for the
benefit of creditors, or bankruptcy. Upon termination of this Agreement, You will (a) cease all use of the
Program, (b) return the Program to Novadaq, or destroy the Program and all related materials in Your
possession, and (c) so certify to Novadaq. Except for the license granted herein and as expressly provided
herein, the terms of this Agreement will survive termination.
5. GENERAL TERMS
5.1 Governing Law . This Agreement and all matters arising out of or relating to this Agreement will be governed
by the internal laws of the State of New York without giving effect to any choice of law rule. This Agreement will
not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the
application of which is expressly excluded.
5.2 Confidentiality. You will treat and hold the Program and the terms of this Agreement in strict confidence and
shall restrict access to the Program to Your employees only.
5.3 Limitation of Liability . In no event will either party be liable for any indirect, incidental, special, consequential
or punitive damages, or damages, whether direct or indirect, for loss of profits, revenue, business, savings,
data, use or cost of substitute procurement, incurred by either party or any third party, whether in an action in
contract or tort, even if the other party has been advised of the possibility of such damages or if such damages
are foreseeable. In no event will Novadaq’s liability for damages hereunder exceed the amounts actually paid
by You to Novadaq or its distributor for the PINPOINT System. The parties acknowledge that the limitations of
liability in this Section 5.3 and in the other provisions of this Agreement and the allocation of risk herein are an
essential element of the bargain between the parties without which Novadaq would not have entered into this
Agreement. Notwithstanding the foregoing, nothing herein shall limit Novadaq’s liability for death or personal
injury caused by Novadaq’s negligent or willful acts or for any other acts or losses for which liability cannot be
excluded by mandatory provisions of applicable law.