This PlenOptika Pilot Agreement (“Agreement”) sets forth the terms and conditions governing Your Company’s use of the PlenOptika Products and related documentation listed below (the “Product(s)”) solely for the purpose described below (the “Purpose”). The term of this Agreement commences upon submission of the Pilot Trial form and expires 10 business days after Your Company’s receipt of the Product for trial (the “Term”). “Affiliates” means any corporation, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with Company. For purposes of this definition “control” means the direct possession of a majority of the outstanding voting securities of an entity. Product(s) may be used during the Term only, unless Your Company executes a separate agreement with PlenOptika. Use of the Products is subject to the terms and conditions set forth below.
Top terms and conditions to note
In the pilot, Your Company—
- Is responsible for all shipping costs
- Agrees to training for anyone using the Product
- Must return the Product, including the carrying case and all documentation and accessories, within 5 business days of the trial term’s end, or be invoiced for the retail price
- Is responsible for loss or damage while the Product is in your control
TERMS AND CONDITIONS:
Right to Use: PlenOptika agrees to loan Your Company the Product(s) and grants to Your Company a non-exclusive, non-transferable, royalty-free, revocable license to access and use the Products during the Term only, solely for the Purpose, at the Location.
Shipping Costs: Your company shall pay all shipping costs associated with the delivery and return of Product(s). PlenOptika shall invoice all shipping costs in advance, and such costs are due and payable upon receipt of the invoice. The Product(s) will not be shipped until payment is received in full.
Training Requirements: Prior to use of Product(s) for Purpose, all personnel of Your Company who will be using the Product(s) shall: (1) review Product instruction materials provided by PlenOptika and (2) attend a Product training session by PlenOptika (approximately 90 minutes), hosted via phone or video call at a mutually agreed upon date and time.
Term and Termination: This Agreement expires at the end of the Term, unless otherwise terminated as set forth herein. PlenOptika may terminate this Agreement immediately in the event of a material breach of this Agreement by Your Company that is not cured within ten (10) days of written notice thereof from PlenOptika. Within five (5) business days following termination or expiration of the Term for any reason, Your Company shall return the Product(s) to PlenOptika, free of damage and in good working condition, in its original “travel case” packaging, together with any and all documentation and materials provided by PlenOptika in connection with Product(s), and in accordance with instructions given by PlenOptika. If Your Company does not return the Product(s) within five (5) business days, Your Company will be invoiced the full retail price of such Product(s), and must pay the same within fifteen (15) days. Your company shall be responsible for all return shipping and insurance costs. Your company is responsible for removing all of Your Company’s Data from the PlenOptika Products, and PlenOptika shall have no obligation to make Your Company Data available to Your Company upon termination of this Agreement. Any provision which by its nature should survive termination of this Agreement shall survive such termination, including but not limited to the limitation of liability and indemnification provisions.
Obligations of Your Company: Your Company shall, at all times while Product(s) is under its control or in its possession, ensure that Product(s) is (a) used strictly in connection with and solely for the Purpose; (b) used and operated strictly in accordance with all applicable PlenOptika operating instructions; and (c) operated only by competent and trained persons. Your Company agrees that it shall not sell, lease, loan, sublicense, assign, transfer, or distribute Product(s) to any third parties. Your Company further agrees that it shall not modify, alter, translate, reverse-engineer, decompile, disassemble, or otherwise attempt to derive the source code, object code, or underlying structure of the Product(s), or use Product(s) in any manner that is inconsistent with the Purpose without the prior written approval of PlenOptika. Your Company will not create derivative works of the Product(s) or use or access the Product(s) to build, support, and/or assist any third party in building or supporting products or services that are competitive with the Product(s). Your Company will not use the Product(s) for any fraudulent undertaking or in any manner that could damage, impair, or otherwise interfere with PlenOptika’s provision of the Product(s). Your Company, at its sole expense, shall maintain Product(s) in good working condition in accordance with applicable PlenOptika maintenance instructions, reasonable wear and tear excepted. Your Company shall not remove or deface any PlenOptika or other clearly branded identification numbers, marks, or nameplates that may be included on or affixed to Product(s). Your Company shall be liable to PlenOptika for any damage, misuse, or loss of Product(s), including any replacement or repair cost incurred by PlenOptika. Replacement cost shall be based on the then-current list price for Product(s). Your Company agrees to maintain appropriate and adequate insurance policies and coverage to cover any such damage to or loss of Product(s). Notwithstanding such insurance coverage, Your Company shall immediately reimburse PlenOptika for any such damage or loss.
Title and Risk of Loss: PlenOptika and its licensors shall have sole and exclusive ownership of all right, title, and interest in and to the Products (including any software and firmware contained therein), including all associated intellectual property rights. PlenOptika will be free to use, disclose, reproduce and otherwise exploit any and all suggestions, enhancements requests, feedback, recommendations or other input provided by Your Company or any other party relating to the Product(s) as PlenOptika sees fit, entirely without obligation or restriction of any kind. Any rights not expressly granted herein are reserved by PlenOptika. Your Company is responsible for loss of or damage to Product(s) while Product(s) is in under Your Company’s control or in its possession.
Export Controls, Compliance with Law: Your Company shall not transfer or export Product(s) or related technical information without the prior written consent of PlenOptika. Your Company hereby covenants that all of its activities under or pursuant to this Agreement comply with all applicable laws, rules, and regulations.
Confidential Information: During the Term, each party may disclose or provide to the other certain technical or business information that it wishes to remain confidential (“Confidential Information”). Confidential Information will not, however, include any information that (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party, as shown by the receiving party’s files and records; (iv) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession. The receiving party may use this Confidential Information only for the Purpose during the Term, or for the purpose of performing other obligations under this Agreement. The receiving party may not disclose any of the disclosing party’s Confidential Information to any third party. Without limitation, PlenOptika’s Confidential Information includes the Product(s). The receiving party acknowledges and agrees there may be no adequate remedy at law for breach of this section and that such breach may cause irreparable harm to the disclosing party; therefore, in the event of a breach or threatened breach of this section by the receiving party, the disclosing party shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it might have at law or under this Agreement. COMPANY AGREES THAT IT SHALL NOT, WITHOUT PLENOPTIKA’S PRIOR WRITTEN CONSENT IN EACH INSTANCE: (A) USE THE PRODUCTS FOR THE PURPOSES OF CONDUCTING COMPARATIVE ANALYSIS OR PRODUCT BENCHMARKS WITH RESPECT TO THE PRODUCTS; (B) PUBLICLY POST ANY ANALYSIS OR REVIEWS OF THE PRODUCTS; OR (C) ISSUE, PUBLIC, OR CONTRIBUTE TO ANY PRESS RELEASE, ACADEMIC JOURNAL, OR ANY OTHER MEDIA OR PUBLICATION REGARDING USE OF THE PRODUCT OR ITS RESULTS.
DISCLAIMERS: TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCT(S) ARE PROVIDED “AS IS” AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE EXCLUDED AND HEREBY DISCLAIMED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF COMPATIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USE OF TRADE. PLENOPTIKA AND ITS PRODUCTS DO NOT PROVIDE MEDICAL ADVICE OR DIAGNOSES. COMPANY ACKNOWLEDGES THAT IT IS SOLELY RESPONSIBLE FOR VERIFYING THE ACCURACY OF PATIENT INFORMATION (INCLUDING, WITHOUT LIMITATION, BY OBTAINING ALL APPLICABLE PATIENTS’ MEDICAL AND MEDICATION HISTORY (E.G., ALLERGIES), AND FOR ALL MEDICAL DECISIONS OR ACTIONS WITH RESPECT TO THE MEDICAL CARE, TREATMENT AND WELL-BEING OF COMPANY’S PATIENTS, INCLUDING, WITHOUT LIMITATION, ALL OF COMPANY’S ACTS OR OMISSIONS IN TREATING THE APPLICABLE PATIENT AND ANY RELIANCE BY COMPANY OR ITS USERS UPON THE PRODUCT(S) SHALL NOT DIMINISH THAT RESPONSIBILITY. Your Company acknowledges that the broad applicability of the Product(s) may make them useful in applications for which they were not expressly designed, and which may involve dangers to human health or safety. Your Company agrees not to use the Product(s) for any such purpose.
Limitation of Liability: Notwithstanding any other Section or provision of this Agreement, under no circumstances shall PlenOptika be liable for any consequential, special, incidental, indirect, multiple, administrative, or punitive damages, or any damage of an indirect or consequential nature arising out of or related to Your Company’s use of the Product(s) or PlenOptika’s performance under this Agreement, unless such damages are caused by PlenOptika’s grossly negligent, reckless, or intentional actions. To the maximum extent permitted by applicable law, PlenOptika’s total aggregate liability under this Agreement shall not exceed $1,000.
Data & Privacy: Your Company owns any data, information, or material originated by Your Company that Your Company submits or provides during the Term (“Your Company Data”). Your Company is solely responsible for the accuracy, quality, content, and legality of Your Company Data, the means by which Your Company Data is acquired and the transfer of Your Company Data. Your Company represents and warrants that it has all rights necessary to upload the Your Company Data to the Product(s). Your Company acknowledges and agrees that PlenOptika may use such Your Company Data, only in accordance with PlenOptika’s privacy policies, available here https://plenoptika.com/privacy-policy/.
Governing Law and Venue: This Agreement is written and construed in the English language and its interpretation in any judicial or arbitration proceedings shall be in accordance with the meaning of the words and phrases in the United States, and performance of the Parties is construed and governed in accordance with the laws of the State of Massachusetts, United States of America, excepting its laws and rules relating to conflict of law. Neither (a) the United Nations Convention on Contracts for the International Sale of Goods, (b) the 1974 Convention on the Limitation Period in Contracts for the International Sale of Goods (hereinafter referred to as the “1974 Convention”), nor (c) the Protocol Amending the 1974 Convention done at Vienna, Austria, on April 11, 1980, apply in any manner to the interpretation or enforcement of this Agreement.
Miscellaneous: This Agreement may not be assigned, delegated, sublicensed, or transferred, whether by operation of law or otherwise, by Your Company without the written consent of PlenOptika, and any attempted assignment, delegation, sublicense, or transfer without such written consent is void and of no effect. Nothing in this Agreement shall be construed to imply a joint venture, partnership or agency relationship between the parties; PlenOptika shall be considered an independent contractor. Any notice required to be provided pursuant to this Agreement shall be in writing, addressed to the parties at the respective addresses set forth on the cover page, and sent by first class mail or pre-paid postage. No waiver of any breach of any provision of this Agreement constitutes a waiver of any prior, concurrent or subsequent breach of the same or any other provisions and will not be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. This Agreement is the entire agreement of the parties, and supersedes all prior and contemporaneous agreements and communications, whether oral or in writing, between the parties with respect to the subject matter of this Agreement, and no amendment or modification of this Agreement shall be effective unless made in writing and signed by authorized representatives of PlenOptika and Customer.
This Agreement between PlenOptika and Your Company is effective upon submission of the Pilot Trial form
