8.2 Warranty Exclusions.
- This warranty does not apply if the Equipment is:
- Damaged by use with a third-party component or product that is incompatible with the Equipment
- Modified or tampered with (e.g., any attempt is made to defeat or circumvent any technical limitations or security mechanisms) or its serial number is altered or removed;
- Damaged by any external cause (including, e.g., by being dropped, exposed to liquid, used with inadequate ventilation, etc., or failure to follow instructions in the instruction manual);
- Scratched, dented, etc., or shows other cosmetic damage;
- Damage caused by Customer or any non-authorized third-party; or
- Used with any operating software other than the operating software preinstalled in the Equipment (or any updates or modifications of that operating software provided by IHT), or if Customer breaches the terms of the license agreement for the operating software herein.
- The Equipment requires an annual calibration at OmniSense’s Laboratory which is only covered if Customer purchases the Extended Warranty from IHT under a separate Master Services Agreement, and therefore any inaccuracies resulting from lack of calibration beyond the one (1) year warranty period shall not be considered to be “defects” and therefore all required calibrations and other maintenance of the Equipment shall be a Customer responsibility beyond the one (1) year warranty period unless Extended Warranty services are purchased from IHT.
- IHT does not guarantee that Customer’s use of the Equipment will be uninterrupted, timely, secure, or error-free, or that data loss will not occur.
8.3 Warranty Waiver. The warranty under Section 8.1 herein is IHT’s sole warranty with respect to the Equipment. ALL OTHER WARRANTIES AND CONDITIONS EITHER EXPRESSED OR IMPLIED, WHETHER ARISING UNDER LAW OR EQUITY OR CUSTOM OR TRADE, INCLUDING THE WARRANTIES OF QUALITY, MERCHANTABILITY, FITNESS FDR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, ARE, TO THE FULLEST EXTENT PERMITTED BY LAW, EXPRESSLY EXCLUDED AND DISCLAIMED. THE MAXIMUM LIABILITY OF IHT IN RESPECT OF A CLAIM RELATING TO ANY PARTICULAR GOODS OR SERVICES SUPPLIED BY IHT IS LIMITED TO THE PRICE PAID BY THE CUSTOMER FOR SUCH PARTICULAR GOODS OR SERVICES. IHT SHALL NOT BE LIABLE TO CUSTOMER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR FOR BREACH OF STATUTORY DUTY, OR OTHERWISE, OR (A) ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND WHATSOEVER HOWEVER CAUSED; (B) ANY LOSS OF BUSINESS, REVENUE, PROFIT, GOODWILL OR SAVING (IN EACH CASE WHETHER DIRECT OR INDIRECT).
8.4 Equipment Use Limitations. The Equipment is not marketed or intended to be used as medical devices or for any application that is hazardous such that the correct functioning and output of the devices are used to make life saving or other critical decisions relating to people or animals. In addition, the Equipment cannot be used to determine, and does not determine, the core body temperature of people or animals. Core body temperature can only be determined using an approved measurement device approved by the government for such purposes.
- OPERATING SOFTWARE:
(a) Right to Use. Customer acknowledges and agrees that the Equipment is delivered with operating software pre-installed that is necessary for the operation of the Equipment. Customer acknowledges and agrees that Customer does not gain any ownership right in or to the operating software by purchasing the Equipment and such operating software may be used by Customer under the terms and conditions hereunder. Subject to the use restrictions below and the other terms and conditions of this Agreement, Customer is granted a limited, revocable, non-exclusive, non-transferrable, right to use the operating software solely in conjunction with operating the Equipment.
(b) Use Restrictions. Customer agrees not to copy, extract, modify, reverse engineer, decompile or disassemble the Equipment or operating software, in each case to the extent that such restriction is not prohibited by law in the jurisdiction where the Equipment is being operated. Except for the limited rights granted in Section 9(a), IHT and its suppliers and licensors hereby retain all right, title and interest in and to all worldwide intellectual property rights in the operating software. Any usage of the operating software or the Equipment in violation of this Section 9 shall be a material breach of these Terms and Conditions of Sale which shall immediately terminate the rights granted under Section 9(a). Customer acknowledges and agrees that use of the operating software without the rights granted above or in violation of the restrictions above infringes IHT’s and its suppliers’ and licensors’ copyright rights in the operating software.
(c) Software Updates & Upgrades. IHT shall have no obligation to provide any updates or upgrades to the software provided with the Equipment, but in the event that it does, Customer must provide all reasonable assistance and must perform all reasonable actions to install all such updates or upgrades on all items of Equipment, and if Customer does not then the remainder of the duration any applicable warranty shall be immediately terminated and voided. All such updates or upgrades and any related documentation shall be deemed part of the operating software, and shall be subject to the terms and conditions of these Terms and Conditions of Sale.
- CONTINGENCIES: IHT shall not be in breach of its obligations in the event that performance is prevented, delayed, or made substantially more expensive as a result of any cause beyond its reasonable control, whether or not foreseeable. Nothing in this provision shall be deemed to excuse Customer from its obligation to make payments for Equipment received.