The Parties, intending to be legally bound, agree to the following terms and conditions of the Agreement:
1. Title to the Equipment shall at all times remain with Philips. Customer shall not pledge, hypothecate, sell, lease, transfer, assign or otherwise encumber the Equipment nor allow any liens or security interests or other rights in the Equipment to be filed, registered, perfected or granted in any way. Customer shall indemnify and hold Philips harmless from any and all costs, expenses, damages and liability including the cost of the Equipment and attorney’s fees arising from or pertaining to any breach of the above covenant. The indemnity provided in this Clause 1 shall survive expiration or termination of this Agreement.
2. The Customer represents and warrants that it does not currently own a piece of equipment that is the same model as the Equipment listed herein.
3. The terms and conditions of Philips Software License Agreement, a copy of which can be provided at the Customer’s request, shall apply to the Customer’s use of software and/or firmware provided by Philips.
4. The Customer is solely responsible for proper care, use and condition of the Equipment during the Loan Period. The Customer will operate the Equipment only in accordance with instructions provided with the Equipment. The Customer shall be responsible for the use of the Customer’s or any third party materials in conjunction with the Equipment. The right to use the Equipment under this Agreement does not include the right to modify, reverse engineer, decompile, copy or otherwise determine the structure of the Equipment or any part thereof (including embedded software). The Customer shall take all reasonable measures necessary to protect the Equipment against mishandling, misappropriation and/ or misuse by any person. The Customer will be responsible for any loss or damage to the Equipment while it is in the Customer’s possession. The Customer is not authorized to repair or have the Equipment repaired.
5. During the term of this Agreement, the Equipment shall remain at the Site. The Customer shall give Philips personnel reasonable access to the Equipment during the Loan Period.
6. Philips shall not be responsible for any site modifications or other repairs to the Customer’s premises. The Customer will prepare the installation site according to Philips’ instructions. Philips shall arrange for transportation of the Equipment to the Site and for installation of the Equipment.
7. The medical and ethical well-being of patients who participate in studies and/or treatment conducted with the Equipment is under the Customer’s sole control and is the Customer’s sole responsibility. The Customer shall indemnify and hold Philips harmless from any and all costs, expenses, damages and liability including the cost of attorneys’ fees arising from or pertaining to any clinical or medical related malpractice liabilities and/or claims by such patients arising out of acts or omissions of the Customer, its employees or agents. The Customer’s obligations under this Clause 7 shall survive termination or expiration of this Agreement.
8. THE PARTIES AGREE THAT THE EQUIPMENT, INCLUDING ANY ASSOCIATED SOFTWARE, IS PROVIDED BY PHILIPS WITHOUT ANY WARRANTY WHATSOEVER, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL PHILIPS BE LIABLE FOR ANY ECONOMIC LOSS, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, OR DAMAGES RESULTING FROM THE LOSS OF USE OR USE OF THE EQUIPMENT.
9. Confidential information may be, without limitation, in the form of business and/or financial records, the Equipment information, product and roadmap information, marketing details, pricing information, software, technical information provided or developed in connection with this Agreement, research and development ideas, product specifications, samples, photographs, technical drawings, assembly testing instructions, presentations or other documents or storage media. Technical information includes any hardware, software, design data, engineering data, scientific data, specifications, methods, operations and other trade secrets. All such information is herein collectively referred to as the “Confidential Information” and shall be limited to information that (a) is in written, recorded, graphical or other tangible form and is marked “Confidential” or “Proprietary”; or (b) is in oral form or other intangible form and which either Party identifies as “Confidential” or “Proprietary” at the time of disclosure, with subsequent confirmation in writing within thirty (30) calendar days of such disclosure; or (c) disclosed in such a way or being of such a nature that a reasonable person would consider such information to be Confidential Information of the disclosing Party. The receiving Party shall use the Confidential Information for the purposes of evaluation of the Equipment and shall not disclose the Confidential Information to any third party without the prior written consent of the disclosing Party. Where such prior written consent has been granted, the receiving Party shall ensure that the third parties abide by the confidentiality provisions as required under this Agreement. 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. This obligation shall endure permanently, except as to that information that: (a) becomes a part of the public domain or of public knowledge through no act or omission of the receiving Party; (b) was in the possession of the receiving Party prior to the disclosure by the disclosing Party, and such possession by the receiving Party is documented prior to the date of such disclosure; or (c ) must be disclosed by either Party to comply with applicable laws or regulations. In the event of breach of this Clause 9, the breaching Party shall be liable for and shall indemnify the other Party against any and all direct damages, loss, costs (including attorney’s fees and costs) and other liability arising from such breach by its employees, representatives and/or agents.
10. The disclosing Party’s Confidential Information is and shall remain the sole and exclusive property of the disclosing Party. Except as expressly stated in this Agreement, nothing herein contained shall be construed as a grant by implication, estoppel or otherwise, of a licence of any kind by either Party to the other (including but not limited to a licence to make, have made, use or sell any product using the Confidential Information or as a licence under any patent, patent application, utility model, copyright or any other intellectual property right). Each copy of any portion of Confidential Information provided by the disclosing Party shall contain the same proprietary notices, labels, and marks as the original thereof without any alteration. The recipient Party shall not remove or alter any such proprietary notices, labels, and marks on or contained in any portion of Confidential Information.
11. Neither Party shall use the name or logo of the other Party for research or for any purpose whether in relation to any advertisement, publication or other form of publicity without obtaining the prior written consent of the other Party. Neither Party may make reference to this Agreement or the terms contained herein to third parties without obtaining the prior written consent of the other Party.
12. Either Party may terminate this Agreement upon written notice to the other Party. Termination of this Agreement for any reason shall not relieve either Party of the duties and obligations accruing to it prior to the effective date of such termination or affect any provisions of this Agreement which expressly or by their nature are intended to survive termination of this Agreement. Philips will remove the Equipment upon the end of the Loan Period or an earlier termination pursuant to this Agreement, unless an extension of the Loan Period is granted by Philips in writing or the Equipment is purchased by the Customer upon mutual written agreement by the Parties. The Customer shall return the Equipment to Philips in the same state as provided by Philips and the Customer must strictly follow the Philips’ instructions as to the manner in which the Equipment will be returned. The Customer shall purchase any Equipment that is lost during the Loan Period.
13. It is a condition of the loan of the Equipment from Philips to the Customer that any and all personal data, whether sensitive personal data or not, shall be deleted from the Equipment by the Customer prior to its return to Philips. The Customer shall indemnify Philips fully in respect of any claims or disputes against Philips arising from any failure by the Customer to comply with the obligation to delete personal data. Should Equipment be returned to Philips with personal data still stored within it, Philips will have the right to delete all such data without liability to the Customer or any third party.
14. The receiving Party will return (or at the disclosing Party’s option, destroy) all Confidential Information and all copies thereof in whatever storage media to the disclosing Party within twenty (20) calendar days of the latter's first written request, or upon termination expiry or termination of this Agreement. The receiving Party shall (i) use commercially reasonable efforts to delete and remove the disclosing Party’s Confidential Information from the receiving Party’s environment (including the receiving Party's computers, systems, storage apparatuses, and media) other than archive copies archived in accordance with the receiving Party's normal archive policy; and (ii) the receiving Party shall not thereafter restore or retrieve any such archived copies of the disclosing Party's Confidential Information unless as required by law or to satisfy rules and regulations of a regulatory body.
15. This Agreement supercedes all prior proposals and communications, and sets forth the Parties’ entire agreement with respect to its subject matter and may not be altered or amended except in writing, signed by both Parties.
16. Each Party shall carry out its duties honestly, without the use of corrupt practices or acts of bribery. Each Party shall not pay, provide, offer, promise or authorize to pay or provide anything of value, directly or indirectly, for the purpose of encouraging improper performance or gaining any improper advantage, whether in the public or private sector.
17. The Customer confirms that by Philips entering into this Agreement, Philips is not precluded from subsequently participating in a request for proposal and/or contractual arrangements in any way related to this Agreement.
18. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with the laws of Singapore and the Parties hereby submit to the exclusive jurisdiction of the Singapore courts. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act (Chapter 53B of Singapore) to enforce any term of this Agreement.