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PHILIPS ELECTRONICS UK LIMITED (“PHILIPS”) - HEALTHCARE ONLINE SHOP

GENERAL TERMS AND CONDITIONS OF SALE AND SOFTWARE LICENSE

("Conditions of Sale")

 

These terms and conditions consist of Part A, General Terms, and Part B, Software License Terms. Unless otherwise provided in Part B, all terms and conditions set out in Part A equally apply to Part B.

 

A. GENERAL TERMS

 

1.        Definitions

The following terms used in these Conditions of Sale shall have the meaning set forth below:

“Affiliate”         means with respect to Philips, any entity which controls, is controlled by or under common control of Koninklijke Philips N.V.;

“Contract”        means the supply agreement in place between Philips and Customer for the supply of the Products (if any);

“Customer”      means the party that has concluded the Contract with Philips;

Philips”          means Philips Electronics UK Limited and its Affiliates;

“Products”       means certain medical equipment supplied by Philips, including parts, accessories and Licensed Software, as specified in the Quotation or in the Contract;

“Quotation”     means the Philips’ quotation for Products as shown in the Healthcare online shop;

“Spare Parts”  means spare parts and accessories intended exclusively for the replacement of defective similar parts in medical devices, as identified in Quotation.

 

2.         Scope

Philips undertakes to supply, and the Customer undertakes to pay for, the Products in accordance with the terms and conditions set forth in these Conditions of Sale which apply to any sale of Products following the Customer’s acceptance of a Quotation and/or Philips’ confirmation of the Customer’s purchase order, except where these Conditions of Sale are inconsistent with the terms and conditions of the Contract, in which case the terms and conditions of the Contract will prevail. Any Quotation is open for acceptance within the period stated therein, and is subject to change or withdrawal by Philips prior to such acceptance. Any purchase orders, whether or not arising from a Quotation, shall be subject to Philips' confirmation in writing. Any terms and conditions set forth on the Customer’s purchase order or otherwise issued by the Customer are hereby rejected and shall not apply to the sale and supply of Products, unless and to the extent expressly stated otherwise in the Quotation or Contract.

 

3.        Prices

The prices as set out in a Quotation are net of any taxes, including but not limited to value added tax, sales tax, consumption tax  and similar taxes, duties, import and export fees, which are imposed by any governmental entity or authority (the “Taxes”). All Taxes on the amounts due hereunder, or which otherwise arise out of or are imposed in relation to the supply of Products, shall be borne by the Customer. Each party shall be responsible for taxes based on its own net income, employment taxes (including any social taxes) of the personnel engaged by it, and for taxes on any property it owns or leases. 

 

4.        Payment

4.1      Unless otherwise specified in the Quotation, Philips will invoice the Customer, and Customer shall immediately pay such invoice on receipt in accordance with the instructions on the invoice.Customer shall make any payments without any set-off, withholdings or any other deductionsPhilips may change credit or payment terms for unfulfilled orders if, in Philips' reasonable opinion, the Customer’s financial condition, previous payment record, or relationship with Philips merits such change. Unless otherwise specified in the Quotation, the Customer shall make payment to the bank account stipulated by Philips.

4.2       Any delay in payments will incur interest in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (as amended), until payment in full is made. If the Customer fails to pay any amount when due, Philips may discontinue the performance of services, discontinue the delivery of the Products and related services, or deduct the unpaid amount from any amounts otherwise owed to the Customer by Philips, in addition to any other rights or remedies available to Philips. Furthermore Philips or its designated representative may, without notice to the Customer, enter any premises in which the Products may be found and render them inoperable or remove them, and hold and sell them in accordance with the applicable law. In any action initiated to enforce payment by the Customer, Philips shall be entitled to recover as part of its damages all costs and expenses, including reasonable attorney’s fees, in connection with such action.

4.3      If the Customer cancels an order prior to delivery and the Customer has a legal right to do so, the Customer shall pay the costs incurred by Philips up to the date of cancellation including, but not limited to, the costs of manufacture of the Products, the costs of providing any training, educational or other services to the Customer in connection with the order, a nominal restocking fee, and the costs of returning or cancelling any Products ordered from a third party. In other cases of cancellation, the agreed price shall remain due and payable.

 

5.        Exchange Process

At the time of sale, in conjunction with the invoice, an RMD (Return Material Document) is issued and the Customer shall provide Philips with the part that is replaced in a medical device with the Product ordered (“Exchange Part”) and send such Exchange Part together with the so issued RMD to:

 

PHS Returns

c/o UPS Supply Chain Solutions

The Parkway

Coventry

CV2 2SY

 

within 15 calendar days of the original date of shipment of the Product, otherwise Philips will invoice and the Customer shall pay the “Exchange Part Value” which amount may differ per product type and can be as high as the price of the Product purchased.  Any part sent back to Philips by the Customer with an RMD (regardless of its origin) becomes Philips property upon receipt by Philips. Exchange Parts shall be returned by Customer FCA Philips’ premises (Incoterms 2010) at the Customer’s cost.

 

6.        Unused Return Parts

6.1      The Customer may return Spare Parts purchased hereunder with a valid RMD, provided such Spare Part is unused and its packaging is unopened (“Unused Return Part”), up to 15 calendar days from the original date of shipment of the Spare Part. If Philips receives an Unused Return Part with a valid RMD within 15 calendar days from the original date of shipment, Philips will provide the Customer with a restock credit that equals the Exchange Part Value (as defined in Section 5). If the Customer returns a Spare Part without an RMD (or the Spare Part is used or its packaging is open), then Philips will process the returned Spare Part as an Exchange Part as described in Section 5 without any credit to Customer. 

6.2      All Unused Return Parts are subject to a restocking fee of 21% of the Exchange Part Value.

6.3      Any Spare Part sent back to Philips by the Customer with an RMD (regardless of whether it is used or opened) becomes Philips’ property upon receipt by Philips. Unused Return Parts shall be sent by the Customer FCA Philips’ premises (Incoterms 2010), at the Customer’s costs.

 

7.        Retention of ownership until full payment

Without prejudice to the tranfer of risk in accordance with the applicable delivery terms, Philips shall retain title to all Products until the Customer has fulfilled its payment obligations in full. The Customer shall provide all necessary assistance to Philips in taking any measures required to protect Philips' property rights.

 

8.        Delivery

Unless otherwise specified in the Quotation, all goods for delivery in the mainland UK and NI will be delivered carriage paid, unless otherwise agreed. If Philips and the Customer agree any other terms, additional costs shall be for the Customer’s account.

 

9.        Technical changes; obsolescence of Products

Philips shall have the right to make changes in the design or specifications of the Products at any time, provided that such change shall not adversely affect the performance of the said Products. During the validity period of a Quotation, Products might become obsolete. In such a situation, Philips shall endeavour to provide equivalent replacement Products at similar prices, but shall have no liaiblity whatsoever in the event that no replacement is available.

 

10.      Dispatch and delivery date

10.1    Orders placed on this site can only be delivered to the mainland UK and NI.  We are unable to deliver to the Isle of Jura and other UK Islands (postcodes starting with KW, PA34, PA35, PA36, PA37, PA38, PA41, PA42, PA43, PA44, PA45, PA46, PA47, PA48, PA49, PA60, PA61, PA62, PA63, PA64, PA65, PA66, PA67, PA68, PA69, PA70, PA71, PA72, PA73, PA74, PA75, PA76, PA77, PA78 and PA80), Gibraltar, the Channel Islands (postcodes starting with GY and JE), the Isle of Man (IM), or to the Republic of Ireland. We cannot deliver to a PO Box, BFPO address or military bases due to shipping restrictions.

10.2    Philips shall make reasonable efforts to meet any delivery dates quoted or acknowledged, but shall not be liable for failure to meet those dates. In the event that Philips cannot despatch the Products to their destination at the date scheduled due to reasons outside Philips' reasonable control, Philips shall be entitled to store the Products concerned at the Customer's expense and risk. In such case the warehouse receipts shall serve as substitutes for the shipping documents in all respects and the Customer undertakes to reimburse within fourteen (14) days of Philips' first demand any and all additional expenses so incurred.

10.3   The estimated term needed for despatch and/or completion of the installation works shall be calculated from the date the advance payment has been received or, if applicable, the date of the bank's advice that the letter of credit and/or other payment instrument agreed upon has been established in conformity with these Conditions of Sale.

 

11.      Installation

11.1   If Philips has undertaken installation of the Products the Customer shall be responsible for the following at Customer's sole expense and risk:

(a)     The provision of adequate and lockable storage for the Products on or near the installation site in order to ensure protection against theft and any damage or deterioration. Any item lost or damaged during the storage period shall be repaired or replaced at the Customer's cost.

(b)     The availability on or near the installation site of adequate and lockable rooms equipped with sanitary installations for installation personnel and for the storage of their tools and instruments.

(c)     The timely execution and completion of the preparatory works, in conformity with any requirements that Philips shall indicate to the Customer upon reasoanble notice. The site preparation shall comply with all safety, electrical and building codes relevant to the Products and their installation. Sufficiency of such plans and specifications shall be the sole responsibility of the Customer. Philips or its representative(s) shall have access to the installation site without obstacle or hindrance in due time to enable Philips or Philips’ representative(s) to start the installation work at the scheduled date. Installation personnel shall not attend the installation site until all preparatory work has been, in the sole opinion of Philips, satisfactorily completed.

(d)     The proper removal and disposal of any hazardous material at the installation site prior to installation by Philips.

(e)     The timely provision of the permits and licenses required by the pertinent authorities for or in connection with the installation and the operation of the Products.

(f)      The timely provision of all visa, entry, exit, residence, work or any other permits necessary for Philips’ or Philips’ representatives’ personnel and for the import and export of tools, equipment, Products and materials necessary for the installation works and subsequent testing.

(g)     The assistance to Philips or Philips’ representative(s), for moving the Products from the entrance of the Customer's premises to the installation site. The Customer shall be responsible, at its expense, for rigging, the removal of partitions or other obstacles, and restoration work.

11.2   If Products are connected to a computer network, the Customer shall be responsible for network security, including but not limited to, using secure administrative passwords, installing the  latest security updates of operating software and web browsers, running a client firewall and maintaining up-to-date drivers, anti-virus and anti-spyware software.

11.3   If any or all of the above conditions are not complied with properly or in a timely manner, or Philips or Philips representative(s) is obliged to interrupt the installation and subsequent testing for reasons not attributable to Philips, the period of completion of the installation shall be extended accordingly and any and all additional costs resulting therefrom shall be for the Customer's account. In such event, Philips will have no liability for any damage resulting from or in connection with the delayed installation.

11.4   Philips shall have no liability for the fitness or adequacy of the premises or the utilities available at the premises in which the Products are to be installed, used or stored.

 

12.      Acceptance

12.1   If Philips has undertaken installation of the Products, Philips shall notify the Customer when the Products installed will be ready for testing and acceptance, inviting the Customer to attend the standard tests or other agreed tests to demonstrate compliance with the agreed specifications and/or to inspect the installation work.The Customer shall sign an acceptance certificate to confirm and certify correct installation of the Product.

12.2   If the Customer's representative fails to attend the testing on the date notified, the technical staff of Philips or its representative will commence with the tests according to Philips' standard test procedures and these tests shall be deemed performed in the presence of the Customer's inspector and acceptance shall in such case take place on the basis of the results stated in the test certificate signed by Philips.

12.3   In the event of rejection of the Products, Customer shall submit such reasons to Philips in detail and in writing within ten (10) days of completion of the acceptance tests concerned, Philips shall as a sole remedy correct the shortcomings as soon as reasonably possible and the relevant stages of the acceptance test shall be repeated within a reasonable period of time in conformity with the procedures outlined above.

12.4   If within ten (10) days of completion of the acceptance test Philips shall not have received the acceptance certificate signed by the Customer or a report of rejection for justified reasons, or upon start of the operational use, the installed Products shall be deemed accepted by the Customer.

12.5   Minor defects or deviations not affecting the operational use of the installed Products may be stated in the acceptance certificate, but shall not obstruct or suspend acceptance. Philips undertakes to remedy such defects as soon as reasonably possible.

 

13.      Complaints and returns

The Customer shall notify Philips in writing and shall substantiate any complaints of erroneous despatch and/or apparent damage to the Products supplied within ten (10) days of receipt of the Products, including the date and number of Philips' invoice. If Philips accepts the complaint as valid, Philips shall issue a return authorisation notice and the Customer shall return the relevant Products in accordance with Philips' instructions. Any Products returned must be insured and carriage prepaid by the Customer and packed in their original packing.

 

14.      Product warranty

14.1   In the absence of any product specific warranty, Philips warrants to the Customer the good quality of any hardware Product, excluding Spare Parts, for a period of one year as from the date of Customer acceptance or first patient use, whichever occurs first, but in no event for more than fifteen (15) months from the date of despatch, against defects which appear therein provided that the Product(s) had been subject to proper use and maintenance, and which arise solely from faulty materials or workmanship. For any vacuum articles, including but not limited to, x-ray tubes, camera tubes and image intensifiers which by their nature have a short lifetime, this product warranty is subject to the Customer paying a pro rata portion of the usual price of such article. Furthermore this warranty is not applicable to replacement parts, hardware upgrades and / or consumables for which specific warranty conditions apply.

14.2   Any Product warranty is made on condition that Philips receives written notice of a defect during the warranty period and within ten (10) days of the discovery of the defect by the Customer, and, if so requested, the defective Product or parts have been returned to an address or location stipulated by Philips. Such defective parts shall become Philips' property as soon as they have been replaced.

14.3   Philips warrants to the Customer that Spare Parts will be free from defects in material and workmanship for a period of ninety (90) days from the date of invoice, provided that the Spare Parts had been subject to proper installation, use and maintenance, and which arise solely from faulty materials or workmanship. Certain items such as x-ray tubes, photomultiplier tubes, cathode-ray tubes, and high voltage transformers may carry separate warranties that are provided at the time of purchase.  This warranty does not include any defect or failure to perform that is the direct or indirect result, in whole or in part, of accident, abuse, misuse, installation, operation of the equipment in which the Spare Part is installed outside of its environmental, electrical or performance specifications, power fluctuations or failures, fires, floods or other similar or dissimilar natural causes, or improper installation or calibration. 

14.4   Any Spare Part warranty is made on condition that (i) Philips receives written notice of a defect during the warranty period and within five (5) days of the discovery of the defect by the Customer, (ii) Customer returned the defective Product, with an RMD and at Customer’s costs, to the address stipulated in Clause 5, FCA Philips’ premises (Incoterms 2010) (“Warranty Part”). Such Warranty Part (and any Spare Part returned without a valid RMD) shall become Philips' property upon receipt by Philips.

14.5   For the avoidance of doubt, Spare Parts sold hereunder are exclusively intended for replacement of defective similar parts within medical devices manufactured by Philips. Customer shall ensure that Spare Parts purchased are used only for such purposes.

14.6   Philips’ obligations under any Product warranty shall be limited, at Philips’ option, to the repair or the replacement of the Products or a portion thereof, in which case replacements parts shall be new or equivalent to new in performance, or to a refund of a pro rata portion of the purchase price paid by the Customer.  Spare Parts may be refurbished; all components used are subject to Philips inspection and quality control procedures, and are equivalent to new in performance.

14.7   Philips’ obligations under any Product warranty do not apply to any defects resulting from:

(a)   improper or inadequate maintenance, configuration or calibration by the Customer or its agents;

(b)   Customer or third party supplied software, interfaces or supplies;

(c)   use, operation, modification or maintenance of the Products other than in accordance with Philips’ applicable Product specifications and written instructions;

(d)   abuse, negligence, accident, loss;

(e)   damage in transit;

(f)    improper site preparation;

(g)   unauthorised maintenance or modifications to the Products, including any unauthorised attachment of hardware and software thereto;

(h)   any damage to the Products or any medical or other stored data caused by an external source regardless of its nature, including but not limited to (i) hacking; or (ii) improper or incomplete application by the Customer of Philips’ instructions on product security and/or (iii) viruses or similar software interference resulting from the connection of the Products to a network or use of removable devices.

14.8   Philips does not provide a warranty for any third party Products furnished to the Customer by Philips. However, in the event that Philips, pursuant to its license agreement or purchase agreement with such third party, is entitled to warranty and service remedies, Philips shall use reasonable efforts to extend to the Customer the third party warranty and service remedies for such Products.

 

15.      Limitation of Liability

15.1   Subject to Section 13.3, the liability of Philips and / or Philips’ representatives for damages whether arising from breach of contract, warranty, negligence, tort or otherwise in relation to the Products is limited to an amount not to exceed the price of the Products giving rise to the liability.

15.2   Subject to Section 13.3, neither Philips nor its representatives shall in any event be liable for any damages for loss of data, profit, revenue or use, in connection with or arising out of these Conditions of Sale or any resulting agreement, or the functioning or the Customer's use of or inability to use the Products, or for any liability of the Customer to any third party with respect thereto. Neither Philips nor Philips' suppliers shall be liable for any loss of or inability to use medical or other data stored in goods, including (embedded) software or on other magnetic media, and neither Philips nor Philips' representatives shall be responsible for reloading data in such event.

15.3   Nothing herein shall operate or be construed so as to operate to exclude or limit the liablity of a party in respect of death or personal injury arising from that party’s negligence or for any other liability which cannot, by applicable law, be so excluded or limited.

 

16.      Intellectual Property Right Infringement

16.1   Philips shall indemnify, defend and hold the Customer harmless against any claim that the Products directly infringe a third party’s intellectual property right, provided that the Customer (a) provides Philips with prompt written notice of the claim, and (b) grants Philips full and complete information and assistance necessary for Philips to defend, settle or avoid the claim, and (c) gives Philips sole control of any defence, settlement, or avoidance of the claim.

16.2   The Customer shall not enter into any settlement in connection with any such claim, nor incur any costs or expenses for the account of Philips without Philips’ prior written consent.

16.3   Philips shall have no obligation to indemnify, defend, or hold Customer harmless for any claim of infringement arising from: 

(a)   Philips’ compliance with the Customer’s designs, specifications or instructions;

(b)   Philips’ use of technical information or technology supplied by the Customer;

(c)   modifications to the Products by the Customer or its agents not approved by Philips; use of the Products other than in accordance with the Products specifications or applicable written Product instructions;

(d)   use of the Products with any other product or software if infringement would have been avoided by the use of a current unaltered release of either the Products; or use of the Products after Philips has advised the Customer in writing to stop use of the Products in view of the claimed infringement; and

(e)   Customer not following Philips' recommended hardware and software maintenance schedules and instructions and/or not implementing mandatory (safety) actions.

16.4   Philips shall not be liable for any claim where the damages sought are based directly or indirectly on the quantity or value of products or services generated by means of the Products or based upon the amount of use of the Products regardless of whether such claim alleges the Products or their use infringes or contributes to the infringement of such claim.

16.5   In the event that such claim of infringement is made, Philips shall have the right, at its option, to (a) procure the right for the Customer to continue using the Products; (b) replace or modify the Products to avoid infringement; or (c) refund to the Customer a pro rata portion of the Products’ purchase price upon the return of the original Products.

16.6   The indemnities and obligations of Philips in this Section shall apply to third party software only to the extent that Philips, pursuant to its license agreement or purchase agreement with such third party, is entitled to indemnification for such infringements.

16.7   Customer shall not add, remove or change any patent, trademark, copyright of other markings on the Products.

16.8   The terms in this Section state Philips’ entire obligation and liability for claims of infringement and the Customer’s sole remedy in the event of a claim of infringement.

 

17.      Use and ownership of documents

All technical information in relation to the Products and their maintenance is Philips’ proprietary information, covered by Philips copyrights and remain Philips' property and may not be copied, reproduced, transmitted or communicated to or utilized by third parties without Philips' prior written consent. Data including but not limited to illustrations, catalogues, colours, drawings, dimensions, statements of weight and measurements made available as (printed) information are an approximation only and the Customer shall not derive any rights based on these data.

 

18.      Export Control and Resale

18.1   The supply, export or transfer of Products or the provision of installation, maintenance, technical assistance, training, investment, financing or brokering services may be subject to export control laws and regulations, including but not limited to those of the UN, the OSCE, the EU, and the USA, which prohibit or restrict export or diversion of certain products, technology and services to certain countries (the “Export Regulations”). If the delivery of Products, technology or services is subject to the granting of an export or import license by a government or otherwise restricted or prohibited due to Export Regulations, Philips may suspend its obligations to the Customer until such license is granted or for the duration of the restriction or prohibition. In the event that no license can be obtained, or if the restriction of prohibition continues, Philips may decide to terminate the relevant order without incurring any liability towards the Customer.

18.2   The Customer shall comply in all respects with the Export Regulations and with any export license applicable for the supply of Products or provision of services. The Customer shall impose all export control restrictions to any third party if the Products are transferred or re-exported to third parties. The Customer shall take all actions that may be reasonably necessary to ensure that no purchaser violates the Export Regulations. The Customer shall indemnify Philips against any and all direct, indirect and punitive damages, loss, costs (including attorneys fees and costs) and other liability resulting from breach or non- compliance with this Section.

18.3   The Customer shall inform Philips in writing of any resale or (re-)export of the Products in order to comply with Export Regulations and any other regulatory responsibilities governing the sale of the Products, including but not limited to, requirements on traceability of medical devices, that may apply to Philips.

18.4   The Customer acknowledges and agrees that Spare Parts are supplied for such use exclusively in the territories of the European Economic Area, Switzerland, Norway, Middle East, Russia and Customer shall not export the Products to territories outside these territories.

 

19.      Traceability and End of Life

19.1   The Customer shall identify, by providing Philips with the serial number of, each system in which a purchased Product is installed. Such information shall be provided by the Customer during the ordering process in its purchase order. 

19.2   The Customer acknowldeges that the Products are not meant for use in systems which have reached End of Life (where “End of Life” or “EoL” means the date at which availability of maintenance services provided by Philips for a device stops). The Customer shall indemnify Philips against any damages suffered by Philips, including but not limited to the cost of a recall, attributable to the Customer’s acts or omissions in breach of this acknowldegement.

 

20.      Confidentiality

Each party shall maintain as confidential any information furnished or disclosed to one party by the other party, whether disclosed in writing, electronically or disclosed orally, relating to the Products and business of the disclosing party, its customers and/or its patients, including any pricing information. Each party shall use the same degree of care to protect the confidentiality of the disclosed information as that party uses to protect the confidentiality of its own like information, but not less than reasonable care. Each party shall disclose such information only to such of its employees, agents, distributors, representatives and/or subcontractors having a need to know such information to perform the transactions contemplated. The obligation to maintain the confidentiality of such information shall not extend to information in the public domain at the time of disclosure, and/or information that is required to be disclosed by law or by court order.

 

21.      Force majeure

21.1   Each party is entitled to suspend the performance of its obligations as a result of any delay or default caused by events beyond its reasonable control, including, but not limited to, acts of God, war, civil war, insurrection, fires, floods, labour disputes, epidemics, governmental regulations and/or similar acts, freight embargoes, Philips’ non-availability of any permits, licenses and/or authorisations required, defaults or force majeure of suppliers or subcontractors.

21.2   If force majeure prevents Philips from fulfilling any order from the Customer or otherwise performing any obligation arising out of the sale, Philips shall not be liable to the Customer for any compensation, reimbursement or damages.

 

 

 

22.      Miscellaneous

22.1   Some newly manufactured Products supplied hereunder may contain selected remanufactured parts equivalent to new in performance. Replacement parts are new or equivalent to new in performance.

22.2   If the Customer becomes insolvent, is unable to pay its debts when due, files for bankruptcy, is the subject of bankruptcy, has a receiver appointed, obtains a moratorium on payments (temporary or permanent) or has its assets assigned or frozen, Philips may cancel any unfulfilled obligations or suspend performance; however, the Customer’s financial obligations to Philips shall remain in effect.

22.3   If any provision of these Conditions of Sale is deemed to be illegal, unenforceable or invalid, in whole or in part, the validity and enforceability of the remaining provisions shall continue in full force and effect. In substitution for any such provision deemed to be illegal, unenforceable, or invalid, in whole or in part, a provision reflecting the original intent hereto to the extent permissible under applicable law shall be deemed to substitute the said provision.

22.4   Notices or other communications shall be in writing, and shall be deemed served only if delivered personally or if sent by courier, by mail or email to the relevant party.

22.5    The failure of the Customer or of Philips at any time to require the performance of any obligation shall not affect the right to require such performance at any time thereafter.

22.6   Without the prior written consent of Philips, the Customer shall not transfer or assign any of its rights or obligations hereunder.

22.7   The Customer’s obligations are independent of any other obligations the Customer may have under any other agreement, or account with Philips. The Customer shall not exercise any right of offset in the Quotation or sale in connection with any other agreement, or account with Philips.

22.8   The Customer shall neither use the Philips name, nor make any public communication about the parties cooperation, nor make any commitments on behalf of Philips nor represent Philips nor give the impression of being an authorised Philips service provider.

22.9   The English language version of these Conditions of Sale shall be the version which defines the agreement between the parties. Translations into any other language or languages shall be for convenience only and shall not be used to contradict or interpret the English language version.

22.10 These Conditions of Sale and any agreement for the supply of Products and related services shall be subject to and construed in conformity with the laws of England and Wales. The United Nations Convention on Contracts for the International Sale of Goods is explicitly excluded. The English Courts shall have exclusive jurisdiction in case of any dispute between the parties. 


 

B. SOFTWARE LICENSE TERMS

 

1.        Definitions

The following terms used in these Software License Terms shall have the meaning set forth below:

 

Designated Hardware  the hardware supplied by Philips with which the Licensed Software is designed to operate.

 

Licensed Software       the software in object code and all copies thereof to be operated on or in connection with the Designated Hardware, whether embedded in the hardware or provided on a separate data carrier, covering system, test and application functions, including the supporting documentation necessary to effectively use the software.

 

2.        License

2.1      Subject to fulfillment of the terms and conditions contained herein, Philips grants to the Customer a non-transferable and non-exclusive license, without the right to sublicense, to use the Licensed Software in connection with the operation of the Designated Hardware in the Customer’s organization. No other right in and to the Licensed Software or any other intellectual property right of Philips or its suppliers are granted to the Customer, unless expressly set out in these Software License Terms.

2.2      The Licensed Software shall be used only on the Designated Hardware and at the location where the Products are installed, unless it pertains to a mobile system. Separate Software License Terms are required for each Designated Hardware or central processing unit on which the Licensed Software is to be used. The Customer shall use the Licensed Software only for the agreed purpose.

2.3      The Licensed Software may include or incorporate technology owned or certified by Philips’ suppliers. These Software License Terms do not imply a right under any intellectual property right of Philips’ suppliers for the use of such third party technology. The Customer agrees to obtain a separate license from such supplier by way of  an end user license agreement between such supplier and the Customer, if so required.

2.4      These Software License Terms do not extend to any maintenance or service software supplied separately or with the Products which is intended to assist Philips or its representatives in the installation, testing, service, and maintenance of the Designated Hardware.

 

3.        Reservations

3.1      Philips and/or Philips’ suppliers (as the case may be) own all intellectual property rights, title and interest in and to the Licensed Software and all modifications and derivative works thereof and all intellectual property rights thereof.

3.2      The Customer may copy or have one copy available in machine readable form of the Licensed Software for backup/archival purposes only for the Customer's own use on the Designated Hardware.  The Customer shall not and shall not permit any third party to (a) copy, reproduce, or distribute the Licensed Software or any part thereof (b) assign, sub-license, lease, rent, loan, transfer, disclose, or otherwise make available the Licensed Software. If and insofar as copying is allowed, the Customer shall not remove or alter any copyright notices, proprietary information notices or other legends or marking contained in the Licensed Software and shall reproduce on all media containing a copy of the Licensed Software all copyright notices, proprietary information notices and other legends and markings as were affixed to the original media.

3.3      The Customer shall not cause or permit the Licensed Software or any part thereof, to be used or accessed by any person other than either Philips’ or its representatives’ service personnel or the Customer’s employees, or agents engaged in the activities of the Customer. The Customer shall procure that each authorized person who uses the Licensed Software adheres to the terms and conditions as contained herein.

3.4      If the Customer uses the Licensed Software to access or utilize the services or functionality of Microsoft's Windows Server products (all editions or successor versions) or similar software or uses the Licensed Software to permit workstation or computing devices to access or utilize the services or functionality of Microsoft's Windows Server products or similar software, the Customer may be required (i) to obtain, either through Philips or directly, a Client Access License for the Licensed Software and/or each such workstation or computing device from Microsoft, or (ii) to obtain – in the event similar software is used – the necessary license from the relevant third party for each such workstation or computing device.

3.5      Philips has no obligation to update or upgrade any third party software of any kind (including Microsoft software, antivirus software etc.) that is furnished to the Customer by Philips, unless the parties explicitly agree that Philips assumes such responsibility in a service agreement.

3.6      The Licensed Software is licensed under copyrights only and not sold, and any and all references to “sale” or “sold” of any Licensed Software shall be deemed to mean a copyright license, and not as transfer of any intellectual property right.

3.7      The Licensed Software may be accompanied by certain open source software. Such open source software is only governed by its own open source license conditions. To the extent Philips has provided Customer with a copy of the relevant open source software license conditions, Customer shall comply with such open source software license conditions.

 

4.        Modifications and Improvements

4.1      The Customer may not modify, unlock, arrange, adapt, correct errors, translate, reverse engineer, decompile or disassemble the Licensed Software or to cause or permit such activities. The Customer further may not create or have created derivative works based on the Licensed Software without the prior written consent of Philips. Information necessary to achieve interoperability of the Licensed Software with other software shall be obtained only from Philips against the then prevailing standard terms and conditions and at Philips’ sole option.

4.2      If the Licensed Software is modified in any manner by the Customer or a third party, or is combined with software or equipment not supplied and/or approved in writing by Philips, all warranties associated with the Licensed Software and Designated Hardware shall become null and void as from the moment of such modification.

4.3      Philips may create and license updates or upgrades of Licensed Software from time to time. Updates and or upgrades may be made available to the Customer under applicable terms and conditions.

 

4.4      Philips may make available maintenance of the Licensed Software to the Customer but only if agreed in a separate software maintenance/customer support agreement.

4.5      Philips has no obligation to furnish any assistance, support, maintenance or new versions, except if and to the extent Philips has explicitly agreed in writing.

4.6      The Customer shall indemnify Philips and its Affiliates against and hold Philips and its Affiliates harmless from any damage or costs arising from or in connection with any breach of the provisions of this Section and the Customer shall reimburse all costs and expenses incurred by Philips and/or its Affiliates in defending any claim arising from or in connection with such breach.

 

5.        Term and Termination

These Software License Terms shall be in force and effect as long as the Customer utilizes the Designated Hardware, except that Philips may terminate these Software License Terms forthwith in the event of any breach by the Customer of these Software License Terms, provided Philips has given the Customer a written notice specifying such breach and the Customer has failed to remedy such breach within fifteen (15) days from the date of such notice or within such longer period as may be specified in said notice. Such termination shall not relieve Customer of any of its obligations incurred prior to such termination, and shall not impair any of Philips’ rights which have accrued prior to such date. The Customer shall remove or allow Philips to remove the Licensed Software from the Designated Hardware and return the Licensed Software and any copies thereof and documentation relating thereto to Philips at the Customer's expense immediately upon the termination of the License. Upon such return the Customer shall certify to Philips that it does not, directly or indirectly, wholly or partly, retain or possess Licensed Software or parts thereof.

 

6.        Software warranty

6.1      In the absence of any specific warranty for the Licensed Software as defined in these Software License Terms (except third party software) Philips warrants that during a period of one year as from the date that such Licensed Software has been made available that such Licensed Software shall conform substantially to the applicable functional specifications which are in effect at that time.

6.2      This software warranty is made on the condition that during the applicable warranty period: (a) the Customer notifies Philips of the nonconformity in writing within ten (10) days of discovery giving full details of such nonconformity; (b) such nonconformity is a critical error in the then current version of the Licensed Software; and (c) Philips is able to reproduce the nonconformity. Philips shall then at its option and at its expense and as a sole remedy to the Customer, endeavour to correct the nonconformity, either by replacement, work around or by modification of the Licensed Software. If Philips is unable to correct the nonconformity, Philips may refund a reasonable portion or the entire purchase price for the Products. All corrections shall be made in accordance with Philips' Licensed Software correction procedures. Philips does not guarantee the effectiveness of the correction efforts, and does not represent or warrant that all errors can be corrected. The warranty period for the thus corrected Licensed Software shall not extend the warranty period as set out above.

6.3      Subject to clauses 6.1 and 6.2, the Licensed Software is provided to, and is accepted by, the Customer ‘AS IS’, without warranty of any kind. In addition, Philips expressly disclaims any and all warranties, express or implied, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, or non-infringement.

6.4      The warranty and service obligations of Philips herein shall apply to third party software only to the extent that Philips, pursuant to its license agreement or purchase agreement with such third party, is entitled to corresponding warranty and service remedies.

 

7.        Miscellaneous

7.1      Philips shall offer a software license to any bona fide licensee of the Designated Hardware on which the Licensed Software is running (“Secondary Licensee”) pursuant to the then current charges, terms and conditions. Due to Philips' need to protect its proprietary information, Philips reserves the right not to license the Licensed Software to any Secondary Licensee, if such Secondary Licensee is deemed by Philips to be a competitor of Philips. Upon any sale of the Designated Hardware to a Secondary Licensee and approval of the Secondary Licensee, Philips shall de-install such Designated Hardware at Philips’ then prevailing rates and re-install such Designated Hardware for the Secondary Licensee, but only after such Secondary Licensee has agreed to the required Philips software licensing conditions.

7.2      In connection with Licensed Software in which one or more third party suppliers retain rights, the provisions contained herein shall also be for the benefit of these third party supplier(s). The Customer agrees to indemnify Philips for any claim by third party supplier(s) which arises out of the Customer's breach of the License.

7.3      The Licensed Software may contain support for programs written in Java. Java technology is not fault-tolerant and is not designed, manufactured or intended for use or resale as online control equipment in hazardous environments requiring fail-safe performance.