The following terms and conditions shall apply to all sales by Healthcare Market Resources (‘HMR’) to you (‘Purchaser’) of any and all HMR reports and other products (‘Products’) and to all quotations and offers made by and purchase orders accepted by HMR in connection with the ordering of Products by Purchaser. These terms and conditions are subject only to any special terms set forth in an invoice prepared by HMR (‘Special Invoice Terms’) and delivered to Purchaser. Any different or additional terms and conditions contained in any other document are hereby rejected. Neither HMR’s commencement of performance or shipment or delivery of Products shall be deemed or construed as acceptance of any additional or different terms and conditions. Purchaser agrees that all purchase orders placed by Purchaser shall be governed by these terms and conditions and any Special Invoice Terms, whether or not such terms and conditions accompany HMR’s shipment of Products.
- Warranties Disclaimer. HMR WARRANTS THAT THE DATA CONTAINED IN THE REPORTS IS THE SAME DATA THAT WAS SUPPLIED TO HMR FROM THIRD PARTY SOURCES. HMR MAKES NO OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE HEREBY EXCLUDED. IN PARTICULAR, HMR EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, OR ARISING BY USAGE OF TRADE OR COURSE OF DEALING, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND WARRANTY AGAINST INFRINGEMENT. Notwithstanding anything in these terms and conditions to the contrary, unless agreed otherwise in writing, no warranty is given that the Products meet any requirements or specifications provided by Purchaser, and no warranty is given for any particular application or use by Purchaser, whether communicated to HMR or otherwise. HMR shall not be liable to Purchaser for any technical assistance or information related to the Products given by HMR or any suggestions by HMR regarding the use, selection, application, or suitability of the Products by Purchaser.
- LIMITATION OF LIABILITY. HMR’S LIABILITY TO PURCHASER SHALL BE LIMITED TO ITS OBLIGATIONS AS STATED IN THESE TERMS AND CONDITIONS. HMR SHALL NOT BE LIABLE FOR ANY FORCES OR EVENTS OUTSIDE OF HMR?S REASONABLE CONTROL. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, PURCHASER EXPRESSLY AGREES THAT HMR SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF BUSINESS, OR LOSS OF GOOD WILL, WHETHER CLAIMED UNDER CONTRACT, TORT, INDEMNITY, OR ANY OTHER LEGAL THEORY. PURCHASER EXPRESSLY AGREES THAT UNDER NO CIRCUMSTANCES SHALL HMR’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS OR ANY SALE HEREUNDER (INCLUDING BUT NOT LIMITED TO ANY WARRANTY CLAIMS HEREUNDER) EXCEED THE TOTAL AMOUNT THAT PURCHASER HAS PAID TO HMR HEREUNDER FOR THE PURCHASE OF THE PRODUCT (OR PRODUCTS) THAT IS THE SUBJECT OF SUCH LIABILITY. Any action for breach herein or any other action otherwise arising hereunder must be commenced within twelve (12) months after the cause of action accrues, or such action shall be deemed barred. Purchaser?s remedies set forth herein shall be the sole and exclusive remedies of Purchaser and HMR’s sole and exclusive liability.
- Dispute Resolution. Any and all disputes pertaining to or arising out of these terms and conditions shall be determined by binding arbitration in Philadelphia, Pennsylvania before Judicial Arbitration and Mediation Services, Inc. (“JAMS”) and in accordance with the rules of JAMS. Any award arising out of such arbitration shall be subject to entry as a judgment by any court of competent jurisdiction in the United States. Any action to confirm or vacate such an award must be brought in either the Court of Common Pleas of Philadelphia, Pennsylvania or the United States District Court for the Eastern District of Pennsylvania. Purchaser consents to personal jurisdiction and venue in such courts and waives any challenge to personal jurisdiction or venue in such courts. Notwithstanding the foregoing, HMR has the right to file a claim of action to enforce its rights hereunder in any court of competent jurisdiction within the Commonwealth of Pennsylvania or in the jurisdiction where Purchaser?s headquarters are located. These terms and conditions shall be construed and enforced pursuant to the laws of the Commonwealth of Pennsylvania, exclusive of the laws relating to conflict of laws. In the event of any arbitration, litigation, or other dispute arising as a result of or by reason of these terms and conditions, the prevailing or substantially prevailing party in any such dispute shall be entitled, in addition to any other damages assessed, to its reasonable attorneys? fees and all other costs and expenses incurred in connection with settling or resolving such dispute. If any part of these terms and conditions is held void or unenforceable, such part shall be treated as severable, leaving valid the remainder. HMR’s remedies herein provided shall be cumulative and in addition to any other or further remedies provided by law or equity.
- Confidentiality. The contents of the Products are confidential proprietary information owned by HMR. Purchaser agrees to preserve the confidentiality of all data and other information contained in the Products. Purchaser shall not transfer the Products nor disclose its contents to any third party without the express written consent of HMR.
- Indemnification. Purchaser shall defend, indemnify, and hold harmless HMR and its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns (the ‘Indemnified Parties’), from and against any and all claims, demands, actions, suits, losses, liabilities, damages, injuries, costs and expenses, attorneys’ fees, and all other consequences of every kind, directly or indirectly resulting from Purchaser’s or a third party’s use of the Products or breach of these terms and conditions.