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Use and Loan of Products
The terms of this Loan Agreement for Trial and Loan of Products (“Loan Agreement”) are in addition to the HIGGINS.AI Software License Agreement (or an equivalent agreement in effect between us) identified below (“Loan Agreement”), and govern HIGGINS.AI’s provision of certain Products to Customer on a trial or loan transaction basis. A Product becomes subject to this Agreement when Customer and HIGGINS.AI execute a Trial and Loan of Products Supplement (“Supplement”) which specifies the Product and related terms, and HIGGINS.AI ships or otherwise makes the Product available to Customer.
Each Supplement will identify the transaction as either a trial or loan. For a trial, each Trial Product specified in the Supplement is provided for Customer’s use for a limited trial period as specified in the Supplement.
Customer may elect to retain and purchase or license, as applicable, such Trial Product or return such Trial Product to HIGGINS.AI at the end of the trial period.
For a loan, each Loan Product specified in the Supplement is provided for Customer’s use for a limited loan period as specified in the Supplement. Customer must return such Loan Product to HIGGINS.AI at the end of the loan period unless HIGGINS.AI agrees otherwise in writing.
If there is a conflict between the terms of this Loan Agreement and a Supplement, the conflicting terms of the Supplement prevail over those of this Loan Agreement. A Limited Loan Program’s applicable license terms prevail over the terms of both this Loan
Agreement and a Supplement.
Base Machine – the Machine on which a Limited Loan Upgrade will be, is, or was installed.
Covered Machine – a Limited Loan Machine, Limited Loan Upgrade or Base Machine.
End Date – the end date of a trial or loan period, as specified in a Supplement.
Start Date – the start date of a trial or loan, as specified in a Supplement.
Limited Loan Hardware – a Limited Loan Machine or Limited Loan Upgrade.
Limited Loan Machine – a Machine provided to Customer under the terms of this Loan Agreement.
Limited Loan Product – a Limited Loan Machine, Limited Loan Upgrade or Limited Loan Program. Each Limited Loan Product will be specified in a Supplement.
Limited Loan Program -- a Program, or a feature or other upgrade to a Program provided to Customer under the terms of this Loan Agreement.
Limited Loan Upgrade – a Product feature or other upgrade provided to Customer under terms of this Loan Agreement.
2. Delivery of Products
2.1 Limited Loan Hardware
HIGGINS.AI will deliver Limited Loan Hardware to the location specified in the applicable Supplement. Customer may not move Limited Loan Hardware to another location without HIGGINS.AI’s prior written consent. Customer agrees that each Limited Loan Upgrade may only be installed on the Base Machine specified in the Supplement.
2.2 Limited Loan Programs
HIGGINS.AI will deliver each Limited Loan Program or otherwise make the Limited Loan Program available to Customer as specified in the Supplement. For Limited Loan Programs HIGGINS.AI provides to Customer in tangible form, HIGGINS.AI fulfills its shipping and delivery obligations upon the delivery of such Limited Loan Programs to the HIGGINS.AI-designated carrier, unless otherwise agreed to in writing by Customer and Higgins.AI Incorporated, 147 Liberty St. Toronto, Ontario, Canada M6K 3G3.
3. Service Charges and Payment
Service Charges, if any, apply to the loan period specified in the Supplement. Any extension of the loan period may result in additional charges. If installation of a Limited Loan Upgrade results in higher charges for Programs licensed to the Base Machine, Customer agrees to pay increased Program charges if so specified in the Supplement. Unless HIGGINS.AI specifies otherwise, Customer agrees to pay all transportation charges for each Product from and, if Customer returns the Limited Loan Product, to HIGGINS.AI Incorporated
4. Limited Loan Hardwarre
4.1 Title and Risk of Loss
No title is transferred under the terms of this Loan Agreement.
Customer may not encumber a Covered Machine without HIGGINS.AI’s prior written consent. Customer is not authorized to keep a Limited Loan Product beyond the End Date specified in the Supplement. If Customer does so, however, HIGGINS.AI's rights and Customer's obligations associated with each such Limited Loan Product continue in full force and effect until the first to occur of the following: 1) the Limited Loan Product is returned to HIGGINS.AI (or HIGGINS.AI's designated carrier, as applicable) or 2) the
Product is replaced by Higgins.AI Incorporated under the terms of the service agreement with HIGGINS.AI.
For each Limited Loan Upgrade:
a. Customer must notify HIGGINS.AI prior to the Limited Loan Upgrade’s delivery if the Base Machine is already subject to a third party lien or is owned by a party other than Customer or Higgins.AI incorporated.
b. Unless the Base Machine is owned by Higgins.AI Incorporated, Customer represents that Customer has the permission of the Base Machine’s owner or lien holder for installation of the Limited Loan Upgrade prior to such installation on the Base Machine.
While Limited Loan Hardware is in Customer’s possession, Customer bears the risk of loss due to theft, vandalism or Customer’s negligence. Otherwise, HIGGINS.AI bears the risk of loss.
4.2 Alterations and Loan Agreements
Customer may not make an alteration to Limited Loan Hardware without HIGGINS.AI’s prior written consent. An alteration is (1) any change to Limited Loan Hardware that deviates from HIGGINS.AI’s physical, mechanical, electrical or electronic design, whether or not additional devices or parts are used, or (2) any interconnection to Limited Loan Hardware at other than a defined interface.
Customer may make an Loan Agreement to Limited Loan Hardware without notice. An Loan Agreement is any equipment connected in accordance with specifications and instructions, directly or indirectly, to a defined interface of Limited Loan Hardware. The connection may be mechanical, electrical, or electronic. Customer may not make any alteration or Loan Agreement to a Covered Machine that creates a safety hazard or renders maintenance of the Limited Loan Hardware impractical. Customer is responsible for the results obtained from any alterations and Loan Agreements.
4.3 Removed Parts and Packing Materials
Customer agrees to retain all parts removed from a Base Machine for the installation of a Limited Loan. Upgrade at the same location as the Base Machine, and to neither use nor encumber such removed parts. Customer agrees to retain all packing materials for use in the return to HIGGINS.AI of any Limited Loan Product at the conclusion of the loan period.
4.4 Engineering Changes
Customer agrees to allow HIGGINS.AI to install mandatory engineering changes (such as those required for safety), as solely determined by HIGGINS.AI, on any Covered Machine. Any part HIGGINS.AI removes from such Covered Machine becomes HIGGINS.AI’s property. For each Limited Loan Upgrade, unless the associated Base Machine is owned by Higgins.AI Incorporated, Customer represents that Customer has the permission of the Base Machine’s owner and any lien holders to transfer ownership and possession of such removed parts to HIGGINS.AI. Customer further represents that all such removed parts are genuine and unaltered.
4.5 Limited Loan Hardware Service
During the loan period, HIGGINS.AI will provide service (including machine inspection, and preventive and remedial maintenance) for the Limited Loan Hardware. Customer agrees to the following:
a. to promptly advise HIGGINS.AI of the need for remedial service;
b. to follow the problem determination, service request and service procedures that HIGGINS.AI provides which may include installing Machine Code and other software updates downloaded from an HIGGINS.AI Internet Web site or copied from other electronic media;
c. to secure, where applicable, all programs, data, and funds contained in a Covered Machine
before HIGGINS.AI provides such service; and in the course of providing such service, HIGGINS.AI may ship all or part of Limited Loan Hardware to other HIGGINS.AI or third party locations around the world to perform its responsibilities under terms of this Loan Agreement, and Customer authorizes HIGGINS.AI to do so.
5. Limited Loan Program License
For each Limited Loan Program that Higgins.AI Incorporated owns or has the right
to license, HIGGINS.AI grants Customer a temporary license to use, store and make sufficient copies to support Customer’s authorized use under terms of this Loan Agreement and any applicable license. Notwithstanding any other term of the applicable license agreement, Customer may not 1) transfer a Limited Loan Program to anyone else, 2) use, copy, modify, or distribute a Limited Loan Program except as provided in this Loan Agreement, 3) reverse assemble, reverse compile, or otherwise translate a Limited Loan
Program unless expressly permitted by applicable law without the possibility of contractual waiver, or
4) sublicense, rent, or lease a Limited Loan Program. Each Limited Loan Program is copyrighted and licensed, not sold. For a Limited Loan Program that is subject to a supplier’s or publisher’s agreement, the terms of that agreement apply. Such supplier’s or publisher’s agreement will be provided to Customer.
6. Disposition of Limited Loan Products
6.1 Return of Limited Loan Products
Upon the earlier of a) the End Date (except when Customer elects to purchase a Trial Product as specified in Section 6.4 below) or b) the termination of the Loan Agreement, Customer agrees to:
a. make available to HIGGINS.AI for pickup or destruction, as HIGGINS.AI specifies, the Limited Loan Product (including without limitation any Machine Code provided to Customer and all copies of such Machine Code) and any associated user manual and similar documentation provided by HIGGINS.AI;
b. for a Limited Loan Upgrade, grant HIGGINS.AI access to the Base Machine and make available to HIGGINS.AI any parts and Machine Code that were removed from the Base Machine during the installation of the Limited Loan Upgrade. HIGGINS.AI will remove the Limited Loan Upgrade and reinstall any such removed parts and Machine Code to restore the Base Machine to its former condition;
c. remove any alteration or Loan Agreement and restore Limited Loan Hardware to its unaltered condition before returning it to HIGGINS.AI;
d. securely erase from Limited Loan Hardware all programs not provided by HIGGINS.AI under terms of this Loan Agreement and all data, including without limitation, the following: a) information about identified or identifiable individuals or legal entities (called "Personal Data") and b) Customer’s confidential or proprietary information and other data. If removing or deleting Personal Data is not possible, Customer agrees to transform such information (e.g., by making it anonymous) so that it no longer qualifies as Personal Data under applicable law;
e. remove all funds from Limited Loan Hardware prior to its return to HIGGINS.AI. HIGGINS.AI is not responsible for any funds, programs not provided by HIGGINS.AI under terms of this Loan Agreement, or data contained in Limited Loan Hardware that Customer returns to HIGGINS.AI; and
f. return Limited Loan Hardware to HIGGINS.AI in the same condition, other than reasonable wear and tear, as delivered to Customer.
6.2 Extension of Loan Period
Extension of Loan period is automatic but remains the sole discretion of Higgins.AI Incorporated , Customer must request an extension from HIGGINS.AI before the End Date.
Customer may extend a Trial or Loan period only with HIGGINS.AI’s prior written approval which is at HIGGINS.AI’s sole discretion. HIGGINS.AI will notify Customer in writing of the new End Date and, if applicable, issue a revised Supplement.
6.3 End of Loan
Loan Products are not available for retention or purchase. Upon expiration or termination of a Loan period, Customer must return or destroy the Loan Product in accordance with Section 6.1 above.
6.4 End of Trial
Upon expiration or termination of a Trial period, Customer may retain the Trial Product to be purchased or licensed under separate terms.
Customer agrees that:
a. before the End Date, Customer will notify HIGGINS.AI in writing of a Trial Product which Customer intends to return. HIGGINS.AI may consider absence of such notification as Customer’s intent to purchase the Trial Product;
b. the warranty period for Hardware that Customer begins on its Date of Installation, except when an Upgrade is a machine feature or other upgrade that replaces an existing machine feature or other upgrade, respectively. In this instance, the Upgrade’s warranty period begins on the Date of Installation of the Machine feature or other parts that it
c. the license for a Trial Program that Customer elects to retain will be governed by the terms of HIGGINS.AI’s applicable license agreement, or another supplier’s or publisher’s agreement. HIGGINS.AI will identify each applicable agreement to Customer.
d. it is not authorised to keep a Trial or Loan Product beyond the End Date specified herein. If Customer does so, Customer is in breach of contract and the possession of a Trial or Loan
Product is not to be considered as an implied extension of the Loan Agreement. For the avoidance of doubt, HIGGINS.AI's rights and Customer's obligations associated with each such Trial or Loan Product continue to stay in full force and effect until the first to occur of the following:
1) the Limited Loan Product is returned to HIGGINS.AI (or HIGGINS.AI's designated carrier, as applicable) or
2) the Trial Product is purchased by Customer under the terms of a separate agreement with HIGGINS.AI.
7. No Warranty
HIGGINS.AI MAKES NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY OR CONDITION OF NONINFRINGEMENT.
Manufacturers, suppliers, or publishers of non-HIGGINS.AI Products may provide their own warranties.
HIGGINS.AI does not provide technical support, unless HIGGINS.AI specifies otherwise.
Either party may terminate this Loan Agreement on written notice to the other following the expiration or termination of the terminating party’s obligations. Any terms of this Loan Agreement which by their nature extend beyond the Loan Agreement’s termination remain in effect until fulfilled, and apply to respective successors and assignees.
This Loan Agreement, including its Supplements, and the Agreement are the complete agreement regarding HIGGINS.AI’s provision of Limited Loan Products to Customer, and replace any prior oral or written communications between Customer and HIGGINS.AI. In entering into this Loan Agreement, including each Supplement, neither party is relying on
any representation that is not specified in this Loan Agreement including without limitation any representations concerning: i) estimated ship dates; ii) performance or function of any Limited Loan Product; iii) the experiences or recommendations of other parties; or iv) results or savings Customer may achieve. Additional or different terms in any written communication from Customer (such as a purchase order) are void.
Each party accepts, on behalf of its Enterprise, the terms of this Loan Agreement by signing this Loan Agreement (or another document that incorporates it by reference) by hand. Once signed, i) any reproduction of this Loan Agreement or a Supplement made by reliable means (for example, electronic image, photocopy or facsimile)
is considered an original and ii) all Limited Loan Products provided under terms of this Loan Agreement are subject to it
Agreed to (Customer Name):
Loan Agreement number:
HIGGINS.AI Incorporated Address:
147 Liberty St. Toronto, Ontario, Canada M6K3
Name (type or print):
Name (type or print):
After signing, please return a copy of this Loan Agreement to the local “HIGGINS.AI address” shown above.