1. EQUIPMENT AND SOFTWARE of the quote (the "Quote") attached hereto, issued by PantherTec Inc, a Colorado Corporation ("PantherTec") and the purchaser identified in the Quote (the "Purchaser"), by accepting the equipment identified therein (the "Equipment") and the corresponding software licensed therewith (the "Software"), Purchaser hereby agrees to these Terms and Conditions, along with the (the "Purchase Agreement") and the "Early Adopter Agreement " (the "EAA"), both of which are incorporated herein by reference. These Terms and Conditions, the Quote, the Purchase Agreement, and the EAA are collectively referred to as the "Agreements." Capitalized terms not defined herein shall have the meaning ascribed to them in the Purchase Agreement or the EAA.
2. PURCHASER'S WARRANTIES: Purchaser warrants to PantherTec: (a) if Purchaser is an entity, organization or similar non-natural person, Purchaser is duly organized, validly existing and in good standing under the laws of Purchaser’s state of formation or organization, (b) the execution of the Agreements and the performance by Purchaser of its obligations hereunder and thereunder have been duly authorized, (c) the Agreements constitute the legal, valid and binding obligations of Purchaser and are enforceable in accordance with their terms, and (d) the execution of the Agreements and performance by Purchaser hereunder and thereunder will not violate any law or regulation binding upon Purchaser or conflict with or result in a breach or default under any contract, instrument or agreement binding upon Purchaser, its articles of incorporation or by-laws, as the case may be.
3. PANTHERTEC LIMITED WARRANTIES & LIMITATION OF LIABILITY. (a) PantherTec shall not be liable to Purchaser or any third party for any claim, loss, damage or expense, including any punitive, special, lost profits, lost revenues, exemplary, consequential or similar damages, of any kind or nature whatsoever, caused directly or indirectly by any failure, deficiency, defect or inadequacy of the Equipment or Software, or the use or maintenance of the Equipment or the Software, or the installation or delivery of the Equipment or the Software, or any repairs, servicing or adjustments to the Equipment or the Software, or any interruption, loss of service or use or any loss of business, or any damage whatsoever and howsoever caused. PANTHERTEC MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER IN CONNECTION WITH THE EQUIPMENT OR THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, THE CONDITION OF THE EQUIPMENT OR THE SOFTWARE, THEIR MERCHANTABILITY OR THEIR FITNESS FOR ANY PARTICULAR PURPOSE, THE EQUIPMENT OR THE SOFTWARE ARE BEING PURCHASED “AS IS” AND “WHERE IS” WITH ALL FAULTS, OTHER THAN WARRANTING THAT THE EQUIPMENT OR THE SOFTWARE CONFORM TO SPECIFICATIONS AND ARE NEW AND FREE FROM ANY KNOWN DEFECTS. (b) NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL PANTHERTEC BE LIABLE TO PURCHASER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENTS, INCLUDING, BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF BUSINESS REVENUE, AND ECONOMIC LOSS OR OTHER COMMERCIAL LOSS OF ANY KIND WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, OR BASED ON ANY OTHER LEGAL OR EQUITABLE THEORY.
4. INDEMNITY Purchase Shall indemnify PantherTec (and PantherTec's affiliates and its and their respective members, directors, officers, employees and agents) (the “PantherTec Indemnitees”)) against, and hold PantherTec Indemnitees harmless from, any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including reasonable attorneys’ fees arising out of, connected with, or resulting from the Equipment or the Software, including without limitation, possession, use or operation of the Equipment or the Software.
5. USE (a) Purchaser agrees that the Equipment will be used solely for the purpose of utilizing the Software and with due care to prevent injury to any person or property, and in conformity with all applicable laws, ordinances, rules, regulations, and other requirements of any insurer or governmental body. (b) Purchaser shall not directly or indirectly: (i) provide any other person, including any subcontractor, independent contractor, affiliate, or service provider of Purchaser, with access to or use of the Equipment; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any features or functionality of the Equipment, to any third party for any reason except for use by end users and patients in the ordinary course of business; (iii) use the Equipment in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including, (1) power generation systems, (2) aircraft navigation or communication systems, air traffic control systems, or any other transport management systems, or (3) safety-critical applications, including medical treatment or life-support systems, vehicle operation applications, or any police, fire, or other safety response systems; (iv) use the Equipment in violation of any law, regulation, or rule; or (v) use, or decompile or reverse engineer the Equipment to develop competing equipment. (c) Purchaser understands that PantherTec is not a healthcare company and does not provide medical, health or other professional services, treatment, diagnosis, consultation, information or advice. The Equipment and the Software have not been licensed, approved, endorsed or reviewed or reviewed by any government agency or licensing body and are not replacements for proper medical care, and are not intended to be medical devices, and PantherTec agrees that Purchaser and the users of the Equipment are and patients are each solely responsible for obtaining proper treatment for Purchaser’s and the ultimate user of the Equipment and patient’s health conditions. Purchaser may provide the information and reports received from the Equipment and the Software to Purchaser’s healthcare providers at Purchaser’s own responsibility, understanding that the Equipment and the Software are provided without warranty except as required by law or as otherwise expressly set forth in the Agreements. For the avoidance of doubt, no warranty or guarantee is made that any Equipment or Software will successfully diagnose, prevent nor treat any injury or condition of any person and Purchaser shall not make any representation to any user or patient of any such warranty or guarantee.
6. GOVERNING LAW; SERVICE OF PROCESS. The Agreements shall be governed by and construed in accordance with the local laws of the Colorado applicable to contracts made and to be performed entirely within such. The Purchaser agrees that any legal action or proceeding with respect to the Agreements may be brought by either party in the exclusive jurisdiction of the federal or state courts located in Colorado as PantherTec may elect and the Purchaser hereby irrevocably submits to each such exclusive jurisdiction and waives any objection it may now or in the future have thereto. Purchaser waives personal service of any and all process upon the Purchaser herein, and consents that all such service of process may (but in the event of a confession of judgment proceeding, need not) be made by certified or registered mail, return receipt requested, directed to the Purchaser at the address hereinabove stated and service so made shall be deemed to be completed three (3) days after the same shall have been posted as aforesaid. Purchaser agrees that the Agreements are unique to Purchaser and that no class action or similar multi-purchaser proceeding is appropriate or may be commenced.
7. INTELLECTUAL PROPERTY RIGHTS. Purchaser acknowledges and agrees that the Software and associated Documentation are licensed, not sold, to Purchaser. Purchaser does not acquire any ownership interest in the Software or Documentation under the Agreements, or any other rights thereto, other than to use the same in accordance with the license grant and subject to all terms, conditions, and restrictions under the Agreements. Purchaser reserves and shall retain its entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Purchaser in the Agreements. Purchaser shall use commercially reasonable efforts to safeguard all Software including all copies thereof from infringement, misappropriation, theft, misuse, or unauthorized access. Purchaser shall promptly notify PantherTec if Licensee becomes aware of any infringement of the PantherTec's Intellectual Property Rights in the Software and fully cooperate with PantherTec in any legal action taken by PantherTec to enforce its Intellectual Property Rights.
8. ENTIRE AGREEMENT. These Terms and Conditions, the Quote, the Purchase Agreement and the EULA constitute the entire agreement between PantherTec and Purchaser with respect to the sale and purchase of the Equipment and license of the Software as described herein and therein; and such agreements shall not be amended, altered or changed except by a written agreement signed by the parties hereto. Should any of the provisions of these Terms and Condition conflict with the Quote, Purchase Agreement or the EULA, the terms of the Quote, Purchase Agreement or the EULA, as applicable, shall govern.
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