Stryker SPY PHI HH9000, 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 exclusiv
e 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.