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Standard Terms & Conditions of Sale

Until the expiration date set forth on the quotation to which these Terms and Conditions are attached (“Quotation”), following which the offer automatically will terminate and be of no further force or effect, 7D Surgical ULC (“Supplier”) agrees to sell to the entity to whom the Quotation is addressed (“Purchaser”) and, upon submission by Purchaser of the purchase order contemplated by Section 1(a), Purchaser agrees to purchase the Products and/or Services specified on the Quotation on the terms and conditions set out herein.

As used herein:

7D System” means (i) the 7D surgical system (display, light/camera, foot pedal and user station); (ii) 7D’s software enabling image guidance for those surgical procedures licensed to Purchaser for use with and as part of such 7D surgical system (“Software”); and (iii) 7D’s reusable or disposable kits, tools and instrumentation associated with such 7D surgical system (as may be updated by Supplier from time to time) and any new versions, updates and upgrades of any of the foregoing provided by Supplier to Purchaser hereunder. For clarity, 7D System refers to Purchaser’s original purchase of a 7D System, as well as additional Products, if any, purchased by Purchaser after its original purchase of a 7D System.

Agreement”means the Quotation and these Terms and Conditions.

Confidential information”means information, in every form and whether oral, written or digital, relating to the Products, the business and affairs of Supplier, the terms of this Agreement (including pricing, discounts, rebates, estimates or quotations), and any other information marked or otherwise identified as confidential or proprietary to Supplier or that is reasonably identifiable as confidential or proprietary to Supplier based on its nature and/or the circumstances of its disclosure.

“Intellectual Property” means all intellectual property and intellectual property rights, including, without limitation, all patents and patent applications (including any renewals, divisions, continuations, continuations-in-part, substitutions, re-examinations and re-issues), as well as any moral rights, copyrights, trade secrets, trade marks and designs, inventions, works, wares and services, relating to the Products (including, for clarity, the Software).

Organic Material” means blood, organic, biological or other similar material, including but not limited to potentially infectious material.

Product(s)”means the elements of a 7D System, as listed in the Quotation.

Services” means the services provided by Supplier in connection with the Warranty (as defined in Section 9).

Terms and Conditions” means these 7D Surgical Standard Terms and Conditions (Upfront Sale).

1. Pricing and Payment Terms.

a. To indicate acceptance of the Quotation (and to purchase the Products on these Terms and Conditions), Purchaser shall submit a written purchase order to Supplier consistent with the Quotation and these Terms and Conditions and referencing the quote number set forth on the Quotation and, if accepted by Supplier, Supplier will submit promptly a corresponding invoice to Purchaser. Purchaser agrees to pay thirty percent (30%) of the total amount as set forth on such invoice within fifteen (15) days of the date of receipt of such invoice and the remaining seventy percent (70%) within thirty (30) days of the date of Acceptance (as defined in Section 5).  Shipping and packing charges for Products may be added to the invoice.

b. Prices are exclusive of all taxes, duties and levies, which Supplier may add to the invoice as separate line items, and are the responsibility of Purchaser.  In the event Purchaser is tax exempt, Purchaser shall provide Supplier a tax exemption certificate in a form acceptable to Supplier and the relevant taxing authorities, and to the extent of the exemption, Supplier shall not apply tax to an invoice.

c. Prices are subject to change without notice, except that prices set out in the Quotation shall remain in effect as provided and until the expiration date set forth therein.

d. Unpaid balances will be subject to a 1.0% monthly (12% annual) service charge (calculated, compounded and payable monthly) or, if greater, the maximum rate allowed by law.  Purchaser's obligations to pay Supplier are absolute and are not subject to any factor, counterclaim, deduction, withholding, holdback, set-off or any other condition for any reason.  Purchaser specifically waives any right for any reason to withhold or set-off payments it owes Supplier hereunder, whether available at law, in equity or otherwise under the laws, rules, regulations, ordinances, decrees or orders of any governmental authority.

e. Purchaser's failure to pay any amount when due under this Agreement constitutes a default of this Agreement. If Purchaser has not remedied such default within thirty (30) days of the date on which such payment was due, Supplier may, at its option: (i) withhold performance under this Agreement until the default has been cured; (ii) declare all sums immediately due and payable under this Agreement, as well as any other agreement between the parties; (iii) commence collection activities for all sums due or to become due hereunder, including, but not limited to costs and expenses of collection, and reasonable attorneys’ fees; (iv) terminate this Agreement immediately on notice to Purchaser; and (v) pursue any other remedies permitted by law.

2. Delivery and Title. Delivery of the Products shall be FCA (Incoterms 2020) the location designated in the Quotation (“Delivery”). Title to the Products, except for Software, shall pass to Purchaser upon Delivery of the Products. Title to the Software shall remain with Supplier and/or its licensors.

3. Shipment.  Supplier shall select the method of shipment and the carrier to be used.  Supplier shall insure the Products for shipment at Purchaser’s expense. Purchaser agrees to pay any shipping charges and any additional charges for special packaging requested by Purchaser or deemed necessary by Supplier. All shipping dates and charges set forth in the Quotation are estimates.  Actual shipping dates are assigned in the order that purchase orders are received by Supplier or otherwise as determined by Supplier in its discretion.  Loss or damage that occurs following Delivery (including prior to Acceptance) is Purchaser’s responsibility. Purchaser shall have no right to delay or refuse Delivery of the Products, and no Product may be returned without the prior written authorization of Supplier.

4. Software.

a. The Software is licensed to Purchaser on a royalty-free, non-transferable, nonexclusive basis: (i) solely for Purchaser’s own internal use; and (ii) solely for use with the Product for which it was delivered as described in the Quotation.

b. Portions of the Software may be subject to open standards-based technology and accompanied by notices and/or open source licenses that govern the use of those portions, and which are not altered by any licenses granted herein.

c. The Software and/or data contained in or delivered for use in connection with the Products are or may be trade secrets and/or Confidential Information, and Purchaser shall treat it  in the same manner as it treats its own highly confidential information and shall not disclose same to any third parties without the prior written consent of Supplier. Purchaser shall not copy, modify or reverse engineer the Software and shall prevent third party access to the Software.

d. Supplier may terminate the license for the Software: (i) immediately for any breach of this Section 4; (ii) thirty (30) days after notice by Supplier to Purchaser in the event of the breach by Purchaser of any term of this Agreement or any related agreement between Purchaser and Supplier, unless Purchaser remedies such breach within such thirty (30) day period; and/or (iii) immediately after notice by Purchaser to Supplier that Purchaser has discontinued use of the Products.

5. Specifications and Acceptance. 

a. Supplier will provide the Products in material accordance with the applicable standard product specifications in effect as of the date of Delivery (“Specifications”).  Specifications are subject to change by Supplier without notice. Minor variations in the components or fabrication of hardware Products, and/or variations in the Software, shall not give rise to any claim by Purchaser for defect or default.

b. This Section 5(b) applies only to Purchaser’s original purchase of the Products. Purchaser acknowledges that Supplier shall install the Products and be responsible to perform the initial testing of the Products with a single healthcare professional designated by Purchaser as initially responsible for the use or receipt of the Products pursuant to Supplier’s Product Acceptance Protocol.  Purchaser shall verify acceptance of the Products by such healthcare professional signing the Product Acceptance form (the “Product Acceptance”). Purchaser agrees that signature of such healthcare professional shall be legally binding on Purchaser. Product Acceptance shall not be refused because of minor problems that do not materially affect the suitability for use of the Products.  Product Acceptance shall not, under any circumstances, be subject to any clinical testing, clinical use and/or patient treatment, and any such clinical testing, clinical use and/or patient treatment will be deemed to constitute Product Acceptance, regardless of whether Purchaser has signed the Product Acceptance form.

c. This Section 5(c) applies only to Purchaser’s purchase of additional Products, if any, after its original purchase of Products.  Upon receipt of additional Products, Purchaser shall inspect them and notify Supplier within fifteen (15) days of any defect or shortage, after which time Purchaser shall be deemed to have accepted the additional Products without the need for verification by Purchaser (“Additional Product Acceptance”).  Acceptance of an additional Product shall not be refused because of minor problems that do not materially affect such Product’s suitability for use.

d. For purposes of this Agreement, Product Acceptance and Additional Product Acceptance are referred to collectively as “Acceptance.” Notwithstanding anything to the contrary contained herein, any obligations of Supplier relating to the Warranty, and any corresponding support or service, will not commence until the date of Acceptance.

6. Confidential Information and Privacy. 

a. Purchaser acknowledges that in the course of purchasing or using the Products, Purchaser may have access to and be entrusted with Confidential Information.  Purchaser agrees to not use any Confidential Information for any purpose other than as provided in this Agreement, and shall not disclose any Confidential Information to any person other than employees or other personnel of Purchaser who are directly involved in the purchase and operation of the Products, on a need-to-know basis. Purchaser’s obligations of confidentiality shall survive termination of this Agreement. 

b. For the improvement of Products and customer support, Supplier shall be entitled to collect anonymized statistical data that is stored on the Products. This data will be used exclusively for internal purposes by Supplier, including for its research and development. Supplier and Purchaser each shall comply with all applicable data security and privacy laws and regulations.  Under no circumstances shall Purchaser provide Supplier any protected health information (“PHI”) or personal identifiable information (“PII”) and Purchaser shall be responsible for prevention of any access by Supplier to PHI and PII.

c. Purchaser acknowledges and agrees that Supplier does not need access to PHI to provide Services. Purchaser shall be responsible for managing and protecting all PHI that resides on the Products and shall take all necessary precautions to prevent accidental access to any PHI and any other protected data. In addition, Purchaser acknowledges that Supplier is not considered a “Business Associate” as defined in the Health Insurance Portability and Accountability Act of 1996 (USA).

7. Use of Products; Restrictions. Purchaser represents and warrants that: (a) it is buying the Products for its own use; (b) it shall not transfer or convey any Products to any individual or entity, whether by lease, loan, sale, distribution or otherwise, or physically move from the Delivery location or otherwise give up possession of all or any part of the Products and; and (c) it is under no obligation to any other entity that is in any way inconsistent with carrying out its responsibilities under this Agreement.  Purchaser shall not directly or indirectly, take any steps to copy, reverse engineer, disassemble or decompile the Products or any aspect thereof (including, for clarity, the Software). Purchaser is responsible for fulling each Purchaser Responsibility (as defined in Section 11). Purchaser will not use Products except in accordance with Supplier’s instructions for use and applicable law, and Purchaser is responsible to ensure that all users of Products have the requisite skill and legal authorization to use the Products and have completed successfully Supplier’s in-service training.

8. Intellectual Property.  All interest whatsoever in the Intellectual Property is and shall remain the exclusive property of Supplier, and Purchaser shall not acquire any interest in the Intellectual Property hereunder, other than the license to Software set forth in Section 5(a).

9. Warranty.

a. Subject to Section 9(b), Supplier warrants to Purchaser that the Products will be free from defects in material and workmanship under normal use and in substantial compliance with operational features contained in the Specifications (“Warranty”), for a period of twelve (12) months from the date of Delivery (“Initial Warranty Period”).  In addition, Supplier warrants to Purchaser that it will perform the Services in a professional and workmanlike manner (“Services Warranty”). The Warranty and the Services Warranty shall apply only to the original Purchaser.

b. The Software may be eligible for updates solely to the extent such updates relate to fixes with respect to bugs or errors associated with the Software. Any such software updates will become subject to the Warranty for the unexpired portion thereof. Notwithstanding anything to the contrary contained herein, Supplier does not warrant that the Software will be error-free or bug-free or that the use of the Software will be uninterrupted.

c. Repair or replacement parts provided during the Initial Warranty Period (and, if applicable, the Extended Warranty Period (as defined in Section 10)) carry the same Warranty set forth herein for the unexpired portion of the Initial Warranty Period (and, if applicable, the Extended Warranty Period). Any parts removed and/or replaced by Supplier during any repair process shall become the property of Supplier.

d. The Warranty obligations of Supplier herein are subject to Section 12 and conditioned on Purchaser: (i) complying with Section 11; (ii) immediately ceasing use of the Products; (iii) promptly informing Supplier of the malfunction or defect; (iv) not resuming use of the Products before the malfunction or defect has been addressed by Supplier; and (v) making the Product available for correction. Supplier shall be given reasonable opportunity to investigate all defects, malfunctions and claims. Without limiting the generality of the foregoing, the Warranty shall not apply to, and Supplier shall have no responsibility or liability whatsoever for any defects or damages resulting or arising from: (1) misuse, abuse, neglect; improper installation or site preparation; and/or improper, inadequate or lack of care and/or maintenance, including use or operation other than in accordance with the Specifications and Supplier’s instructions for use or other written instructions provided by Supplier to Purchaser (e.g., operation of Products outside of environmental specifications); (2) Purchaser or third party supplied software or hardware, including interfaces, supplies and/or viruses or similar software interference resulting from the connection of the Product to any internal or external network, equipment or system; (3) modification, maintenance or repair that is not performed or authorized by Supplier; (4) use of the Products after occurrence of any malfunction or as a result of any power fluctuations affecting the Products; (5) permitting any substance whatsoever to contaminate or otherwise interfere with operation of the Products, including camera optics; and (6) fire, accident or any other cause beyond the control of Supplier.



10. Extended Warranty. If set out in the Quotation or purchased prior to the completion of the Initial Warranty Period (at Supplier’s then-current prices), the Warranty shall be extended from the end of the Initial Warranty Period for the duration specified on the Quotation or as agreed to by Purchaser and Supplier (such extended period, the “Extended Warranty Period”).

11. Purchaser Responsibilities.

a. As a condition precedent to Supplier’s obligation to provide Services hereunder, Purchaser agrees to (each, a “Purchaser Responsibility”): (i) at all times maintain the location and environment of the Products (including temperature and humidity control, incoming power quality, and fire protection system) and operate the Products in accordance with the Specifications and Supplier’s instructions for use; (ii) ensure that the Products is in a safe, clean and sanitary condition and location, and that it has been thoroughly cleaned and decontaminated after contact with Organic Material; (iii) make normal operator adjustments to the Products as may be specified in the Specifications and/or Supplier’s instructions for use or other written instructions provided by Supplier from time to time; (iv) provide Supplier’s service personnel full and free access to the Products at the agreed scheduled service time, along with access to and use of all information and facilities necessary for Supplier to provide the Services; (v) maintain all other product that is used in connection with the Products in a manner that does not in any way interfere with the operation of the Products; (vi) ensure that all operators of the Products are competent and have completed appropriate training courses as may be required by Supplier from time to time; (vii) provide, at no charge, adequate working space, heat, light, ventilation, electric current and outlets for use by Supplier’s services representatives, which shall be in close proximity and with reasonable access to the Products; and (viii) not move or permit the Products to be moved without Supplier’s prior written consent.

b. At Supplier’s election, Purchaser shall pay Supplier’s then-current service rates for any time spent by Supplier service personnel on site waiting for access to the Products in excess of the time scheduled as a result of: (i) Purchaser’s failure to perform any of the Purchaser Responsibilities; and/or (ii) waiting to access the Products, if directed to wait by the Purchaser.

12. Exclusions.

a. In addition to the limitations and exclusions set forth in Sections 9 and 11, Services shall exclude the following: (i) servicing the Product if the Product site or Product is contaminated with Organic Material; (ii) reimbursement of any cost of materials, supplies, parts or labor supplied by any party other than Supplier; (iii) the cost of consumable materials for the Product, including but not limited to instruments and other replacement wear items, unless expressly included in the Quotation; or (iv) providing or paying the cost of any rigging, facility, structural alteration, or accessory incidental to the Services or the Product.

b. If Supplier furnishes Purchaser with advice or other assistance and such advice or assistance is not part of the Services or outlined in the Quotation, the furnishing of such advice or assistance will not subject Supplier to any liability, whether in contract, warranty, tort (including negligence and strict liability) or otherwise.

c. If a service or support request is deemed by Supplier not to be covered by the Warranty, Purchaser agrees to pay Supplier for such additional support on a time and materials basis, at Supplier’s then-current hourly rate for time expended, plus all repair parts, and for all travel and other expenses reasonably incurred by Supplier related to such request.

d. Subject to the availability of personnel and parts, Supplier will provide, at Purchaser’s written request and expense, services relating to certain excluded items in the discretion of Supplier (invoiced at Supplier’s then-current rates), which will be subject to these Terms and Conditions.  In connection therewith, Purchaser agrees to pay a minimum of two (2) hours on-site time per service visit, plus the actual cost of travel and accommodation expenses for Supplier service personnel relating to such services.

13. Limitation of Liability; Indemnification.

a. Notwithstanding any other provision hereof, the total liability of Supplier and its suppliers, licensors and contractors arising in connection with or resulting from the manufacture, sale, delivery, resale, repair, maintenance, replacement or use of the Products (including, for clarity, the Software) or otherwise arising in any way out of or relating to this Agreement is limited to the purchase price allocable to the Product(s) which gave rise to the claim, regardless of the legal or damages theory on which a claim is based (whether based in contract, tort, negligence, gross negligence, fault, strict liability, breach of representation or warranty, breach of covenant, or otherwise).

b. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SUPPLIER BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES IN CONNECTION WITH THE PURCHASE OR USE OF ANY PRODUCT (including loss of profit, business, goodwill, customers or revenue), regardless of the legal or damages theory on which a claim is based (whether based in contract, tort, negligence, gross negligence, fault, strict liability, breach of representation or warranty, breach of covenant, or otherwise) and whether or not Supplier has been advised of the possibility of such damages and regardless of the failure of any essential purpose of this Agreement.

c. Purchaser agrees to defend, indemnify and hold harmless Supplier from and against any and all liabilities, judgments, awards, settlements, losses, damages and expenses in connection with any third party claim, proceeding, suit or other action arising from: (i) the negligence or willful misconduct of the Purchaser or its directors, officers, trustees, employees, staff, personnel, contractors or other representatives; and/or (ii) the use, operation, service, or modification of the Products contrary to Supplier’s instructions for use, relevant manuals, guides, written warnings, automated warnings, instructions by Supplier personnel, or applicable laws or regulations.

d. In any claim, action or proceeding initiated to enforce the terms of this Agreement following Purchaser’s breach or default, Supplier shall be entitled, as part of its damages, to recover all losses, costs, expenses and legal fees incurred in connection with such actions.

14. Proprietary Service Materials. In connection with the installation, configuration and de-installation of the Product and/or the performance of Services, Supplier may deliver to Purchaser’s site or use in the Services certain proprietary service materials (including but not limited to software, diagnostic tools and written or electronic documentation) that have not been purchased by or licensed to Purchaser (“Supplier Tools”). The presence of Supplier Tools at Purchaser’s site or in association or use with the Product does not, and will not, give Purchaser any right, title or interest to any Supplier Tools or any license or other right to access, use or decompile any Supplier Tools. Any access to or use of Supplier Tools by anyone other than Supplier’s personnel is strictly prohibited.  Purchaser shall not place any lien on any Supplier Tools at any time, and Supplier shall, at all times, have the right to remove all, some, or any part of any Supplier Tools at any time.

15. Disclaimer. At the request of Purchaser, Supplier personnel may attend a surgery to support use of Products. Purchaser acknowledges and agrees that Supplier personnel are not licensed medical personnel and do not practice medicine and are and shall not be involved in any surgical procedure or decision-making.

16. Independent Contractors. Purchaser and Supplier are independent contractors of each other. Neither party’s employees, contractors or other personnel are under the direction and control of the other party. Nothing in this Agreement will be construed to designate a party, its affiliates, contractors, subcontractors or any of their respective employees or personnel as the employees, agents, joint ventures or partners of the other for any purpose whatsoever.

17. Assignment. Purchaser may not assign this Agreement without the prior written consent of Supplier. The merger or consolidation of Purchaser shall be deemed an assignment requiring prior written consent by Supplier. Supplier shall have the right to assign this Agreement and its rights hereunder to a third party without the consent of Purchaser. This Agreement shall inure to the benefit of the permitted assigns of each party.

18. Excusable Delays. Supplier shall not be in breach of any of its obligations for failure to perform or delay in performing any obligation or Services, wholly or in part, directly or indirectly, to the extent that such delay or failure to perform is caused by events beyond Supplier’s reasonable control including, but not limited to, acts of God, acts or omissions of third parties, acts or omissions of Purchaser, acts of any civil or military authority, fire, floods, war, terrorism, pandemics, epidemics or serious infectious disease, embargoes, labor disputes, acts of sabotage, riots, accidents, delays of carriers, subcontractors or suppliers, voluntary or mandatory compliance with any government act, regulation or request, shortage of labor, materials or manufacturing facilities, or the Product being contaminated with Organic Material.

19. Governing Law. The laws of the State of New York shall exclusively govern this Agreement and the interpretation thereof, without regard to the principles of choice or conflict of law. The United Nations Convention on International Sale of Goods (CISG) (and any other similar sale of goods or international sale of goods legislation in any applicable jurisdiction) does not apply to this Agreement and expressly is excluded from the sale of Products pursuant to this Agreement.

20. Notice. Any notices shall be in writing, and be given (a) if to Purchaser, at the address set out in the Quotation; and (b) if to Supplier, at 5770 Armada Dr. Carlsbad, CA 92008, Attn.: VP, Legal. Either party may change its address for notices by notice given in accordance with this Section. Supplier may, in its discretion, deliver any documents or notices related to this Agreement, including any notices required by law, by email or other electronic means. Purchaser hereby agrees and consents to: (x) conduct business electronically; (y) receive such documents and notices by such electronic delivery; and (z) if requested, sign documents electronically and participate through an on-line or electronic system established and maintained by Supplier or a third party designated by Supplier.

21. Amendments; Waiver. This Agreement may be amended or modified only by a written agreement signed by the parties. Supplier’s failure to insist upon or enforce strict performance of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be construed as a waiver or relinquishment to any extent of such right to assert or rely upon any such provisions, rights or remedies in that or any other instance; rather, the same will be and remain in full force and effect.

22. Survival. Those provisions that by their nature are intended to survive the termination or expiration of this Agreement will survive the termination or expiration of this Agreement, including, without limitation, Purchaser’s obligation to pay all amounts due to Supplier.

23. Severability. If any covenant or other provision of this Agreement is invalid, illegal, or incapable of being enforced by reason of any applicable law or public policy, then such covenant or other provision will be severed from this Agreement, and this Agreement will be construed as if such invalid, illegal, or unenforceable covenant or provision had never been contained in this Agreement, and all other covenants and provisions of this Agreement will remain in full force and effect.

24. Counterparts. This Agreement may be executed electronically and in counterparts, each of which when executed and delivered shall be deemed to be an original, and counterparts shall together constitute one and the same agreement.

25. Entire Agreement. This Agreement constitutes the entire understanding of the parties related to the subject matter of the purchase of the Products, including with respect to the Services and Warranty, and supersedes all other agreements, written or oral, between the parties in connection with the matters specified in the Quotation and these Terms and Conditions. No additional terms, conditions, consent, waiver, alteration, or modification will be binding unless in writing and signed by Supplier’s authorized representative and Purchaser. Additional or different terms and conditions, whether stated in a purchase order or other document issued by Purchaser (including the purchase order contemplated by Section 1(a)), are specifically rejected and shall not apply to the transactions contemplated by this Agreement. No prior proposals, statements, course of dealing, course of performance, usage of trade or industry standard shall be or form part of this Agreement.

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