kraus medixx 60 chiller -elliott – jones – f
Contents
1. enable Licensor to enforce its proprietary and property rights in the Software Licensee agrees that subject to Licensee s reasonable security procedures Licensor shall have immediate access to the Software at all times and that Licensor may take immediate possession thereof upon termination or expiration of the associated license or this Schedule Licensee s obligations under this paragraph shall survive any termination of a license the Schedule or the Agreement 5 UPDATES AND REVISIONS During the warranty period or under a separate service contract or software update subscription revised or updated versions of the Software licensed under this Schedule may be made available at Licensor s option to Licensee to use or to test while Licensee continues use of a previous version Licensee has the right to decide whether to install any such revised or updated versions or to continue use of the previous version after giving due regard to the United States Food and Drug Administration rules and regulations However Licensee shall pay Licensor for any services necessitated by any modifications of the Software by Licensee or by Licensee s failure to utilize the current non investigational version of the Software provided by Licensor Software updates that provide new features or capabilities or that require hardware changes will be offered to Licensee at purchase prices established by Licensor Licensor retains the sole right to determine whethe2. then Purchaser agrees and acknowledges that a Purchaser has made the selection of these products on its own b the products are being acquired by Seller solely at the request of and for the benefit and convenience of Purchaser c no representation warranty or guarantee has been made by Seller with respect to the products d the obligation of Purchaser to pay Seller for the products is absolute and unconditional e use of the products may be subject to Purchaser s agreement to comply with any software licensing terms imposed by the manufacturer and f unless otherwise indicated by Seller in writing Seller is not responsible for any required installation validation product recall warranty service maintenance complaint handling or any other applicable FDA regulatory requirements and the Purchaser will look solely to the manufacturer regarding these services and will assert no claim against Seller with respect to these products 2 PRICES 2 1 Quotations Unless otherwise agreed to in writing or set forth in the quotation all prices quoted by Seller and amounts payable by Purchaser are in U S dollars and include Sellers standard packaging The prices quoted to Seller assume that the Seller is located in and will use the Products in the U S If not such quotation will be void Unless otherwise stated the quotation shall only be valid for forty five 45 days from the date of the quotation 2 2 Delay in Acceptance of Delivery
3. Section 12 3 below Seller shall install the Products and connect them to the requisite safety switches and power lines to be installed by Purchaser Except as otherwise specified below if such installation and connection are performed by Seller s technical personnel prices shown include the cost thereof provided that the installation and connection can be performed within the Continental United States or Puerto Rico and during normal business hours Any overtime charges or other special expenses shall be additional charges to the prices shown 12 3 Purchaser s Obligations Purchaser shall at its expense provide all proper and necessary labor and materials for plumbing service carpentry work conduit wiring and other preparations required for such installation and connection All such labor and materials shall be completed and available at the time of delivery of the Products by Seller Additionally Purchaser shall provide free access to the installation site and if necessary safe and secure space for storage of Products and equipment prior to installation by Seller Purchaser shall be responsible at its sole cost and expense for obtaining all permits licenses and approvals required by any federal state or local authorities in connection with the installation and operation of the Products including but not limited to any certificate of need and zoning variances Purchaser shall provide a suitable environment for the Products and shall ens
4. Should the agreed delivery date be postponed by Purchaser Seller shall have the right to deliver the Products to storage at Purchaser s risk and expense and payments due upon delivery shall become due when Seller is ready to deliver 3 TAXES 3 1 Any sales use or manufacturer s tax which may be imposed upon the sale or use of Products or any property tax levied after readiness to ship or any excise tax license or similar fee excluding the Medical Device Excise Tax as set forth in Section 4191 of the Internal Revenue Code of 1986 as amended required under this transaction shall be in addition to the quoted prices and shall be paid by Purchaser Notwithstanding the foregoing Seller agrees to honor any valid exemption certificate provided by Purchaser 4 TERMS OF PAYMENT DEFAULT 4 1 Payments Due Date Unless otherwise set forth in the quotation Purchaser shall pay Seller as follows an initial deposit of 10 of the purchase price for each Product is due upon submission of the purchase order an additional 80 of the purchase price is due upon delivery of each Product and the final 10 of the purchase price is due upon completion of installation or when the Products are available for first patient use whichever occurs first Unless otherwise agreed all payments other than the initial deposit are due net thirty 30 days from the date of invoice Seller shall have no obligation to complete installation until the payment due upon delive
5. Used in conjunction with the Medixx 60 chiller for emergency cooling using tap water FINANCING The equipment listed above may be financed through Siemens Ask us about our full range of financial products that can be tailored to meet your business and cash flow requirements For further information please contact your local Sales Representative ACCESSORIES Don t forget to ask us about our line of OEM imaging accessories to complete your purchase All accessories can be purchased or financed as part of this order To purchase accessories directly or to receive our accessories catalog please call us directly at 1 888 222 9944 or contact your local Sales Representative COMPLIANCE Compliance with legal and internal regulations is an integral part of all business processes at Siemens Possible infringements can be reported to our Helpdesk Tell us function at www siemens com tell us Created 11 5 2015 3 08 00 PM Siemens Medical Solutions USA Inc Confidential Page 4 of 12 PRO 1 D629H1 SIEMENS Siemens Medical Solutions USA Inc 40 Liberty Boulevard Malvern PA 19355 Fax 901 255 2799 SIEMENS REPRESENTATIVE Stephen Jones 901 896 8430 Siemens Medical Solutions USA Inc General Terms and Conditions 1 GENERAL 1 1 Contract Terms and Acceptance These terms and conditions constitute an integral part of any contract between Seller and Purchaser identified on the first page hereof and shall govern the sale of the products i
6. de install remove the equipment are out of scope costs and will be the responsibility of Purchaser Created 11 5 2015 3 08 00 PM Siemens Medical Solutions USA Inc Confidential Page 11 of 12 PRO 1 D629H1 SIEMENS Siemens Medical Solutions USA Inc 40 Liberty Boulevard Malvern PA 19355 SIEMENS REPRESENTATIVE Fax 901 255 2799 Stephen Jones 901 896 8430 MR Warranty Information Product Period of Warranty Coverage New Systems and ECO Refurbished Systems Only MR System not including consumables 12 months Full Warranty parts amp labor Post Warranty after expiration of system warranty Replacement parts only Magnet 12 months Parts only Spare Parts 6 months Parts only Consumables Not Covered Note Optional extended warranty coverage can be obtained by purchase of a service agreement 1 Period of warranty commences from the date of first use or completion of installation whichever occurs first In the event the completion of installation is delayed for reasons beyond Siemens control the stated warranty period shall commence 60 days after delivery of equipment Created 11 5 2015 3 08 00 PM Siemens Medical Solutions USA Inc Confidential Page 12 of 12 PRO 1 D629H1
7. updated versions and certify such return or destruction in writing to Licensor 10 MISCELLANEOUS Since the unauthorized use of the Software and or Documentation may leave Licensor without an adequate remedy at law Licensee agrees that injunctive or other equitable relief will be appropriate to restrain such use threatened or actual Licensee further agrees that to the extent applicable i any of Licensor s suppliers of Software and or Created 11 5 2015 3 08 00 PM PRO 1 D629H1 Siemens Medical Solutions USA Inc Confidential SIEMENS REPRESENTATIVE Stephen Jones 901 896 8430 Documentation is a direct and intended beneficiary of this Schedule and may enforce it directly against Licensee with respect to the Software and or Documentation provided by such supplier and that ii NO SUPPLIER OF LICENSOR SHALL BE LIABLE FOR ANY GENERAL SPECIAL DIRECT INDIRECT CONSEQUENTIAL INCIDENTAL OR OTHER DAMAGES ARISING OUT OF ANY SUBLICENSE OF THE SOFTWARE AND OR DOCUMENTATION THIS LIMITATION ON LIABILITY SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE 11 ADDITIONAL PROVISIONS RELATING TO THIRD PARTY SOFTWARE If the Software includes software licensed by Licensor from third parties the following additional provisions shall apply a If Software is provided by Licensor on separate media and labeled Recovery Media Licensee may use the Recovery Media solely to restore or reinstall the Software and or Documentation o
8. AIN IN EFFECT REGARDLESS OF ANY CONTRARY LANGUAGE IN THE QUOTATION This Quotation includes the trade in equipment described herein and referenced by either the Project Number identified in the Quotation hereof non ultrasound or the Trade Allowance Part Number Ultrasound as further described in the associated Trade Sheet which is incorporated herein by reference Purchaser certifies that the description of the trade in equipment as set forth on the Trade Sheet is a true and accurate representation of the equipment and that the equipment is in good working condition unless otherwise noted on the Trade Sheet The trade in equipment must be made available for removal no later than turnover of the new equipment Title to the trade in equipment shall pass to Siemens upon the earlier of de installation of the trade in equipment or installation turnover of the new equipment Purchaser must vacate the room of all items not listed on the Trade Sheet or otherwise clearly identify all items listed on the Trade Sheet prior to the start of the de installation If this is not done Seller will have no liability for items which are subsequently removed or scrapped If the de installation or return of the trade in equipment is delayed by Purchaser for reasons other than a force majeure event or if upon inspection by Seller it is determined that the equipment does not meet the manufacturer s operating specifications or if any items listed as included on the Trade Shee
9. NSE TERM AND TERMINATION The license for the Software and Documentation is effective on the shipment date of the Software and Documentation F O B shipping point or F A S as the case may be and continues until Licensee s possession of the Software and all copies ceases except in connection with a transfer of the license as permitted by this Schedule or until otherwise terminated as provided herein Licensee may terminate the license for the Software and Documentation at any time after discontinuance of use of the Software and Documentation and all copies upon written notice to Licensor If Licensee i fails to comply with its obligations herein and does not cure such failure within ten 10 days after receipt of notice from Licensor or ii attempts to assign the Agreement or this Schedule or any rights or obligations hereunder without Licensor s prior written consent then Licensor may terminate the license hereunder and require the immediate discontinuance of all use of the Software and Documentation and all copies thereof in any form including modified versions and updated works Within five 5 days after the termination of the license Licensee shall at Licensor s option either i return to Licensor the Software and Documentation and all copies in any form including updated versions along with any computer media provided by Licensor or ii destroy the affected Software and Documentation and all copies in any form including
10. SIEMENS Siemens Medical Solutions USA Inc 40 Liberty Boulevard Malvern PA 19355 SIEMENS REPRESENTATIVE Fax 901 255 2799 Stephen Jones 901 896 8430 Customer Number 0000070981 Date 11 5 2015 SCOTT amp WHITE HEALTHCARE BY BAYLOR SCOTT amp WHITE HEALTH ITS AGENT 300 University Blvd and FM 1460 Round Rock TX 78664 Siemens Medical Solutions USA Inc is pleased to submit the following quotation for the products and services described herein at the stated prices and terms subject to your acceptance of the terms and conditions on the face and back hereof and on any attachment hereto Table of Contents Page SPAS CSG Accessories and Supplies Local Quote Nr 1 D61DVM Rev 0 cecsceeeeeeceeeeeeeeeeeeeeseeeeeseaeeeeaeeeneees 3 OPTIONS for SPAS CSG Accessories and Supplies Local Quote Nr 1 D61DVM Rev 0 esseeeseeseeeeeestteteeeees 4 General Terms and Conditions iesenii iin aiea a eaaa Ena i apri iaka aeeti atandan 5 Warranty Information snis a aa i a a ai a aa a a a a a a R 12 Contract Total 44 100 total does not include any Optional or Alternate components which may be selected Proposal valid until 12 20 2015 Estimated Delivery Date Four to six weeks from date of formal Siemens acceptance of customer order Estimated delivery date is subject to change based upon factory lead times acceptance date of this quote customer site readiness and other factors A Siemens representative will contact you rega
11. SS TO BOOKS AND RECORDS 26 1 To the extent required by Section 1861 v 1 l of the Social Security Act and the regulations promulgated thereunder until the expiration of four 4 years after the furnishing of any Product or service pursuant to this Agreement Seller shall make available upon written request by the Secretary of Health and Human Services the Secretary or upon request by the Comptroller General the Comptroller or any of their duly authorized representatives copies of this Agreement and any books documents records or other data of Created 11 5 2015 3 08 00 PM PRO 1 D629H1 Siemens Medical Solutions USA Inc Confidential SIEMENS REPRESENTATIVE Stephen Jones 901 896 8430 Seller that are necessary to certify the nature and extent of any costs incurred by Purchaser for such Products and services If Seller carries out any of its duties under this Agreement through a subcontract with a related organization involving a value or cost of ten thousand dollars 10 000 or more over a twelve 12 month period Seller will cause such subcontract to contain a clause to the effect that until the expiration of four 4 years after the furnishing of any Product or service pursuant to said contract the related organization will make available upon the written request of the Secretary or the Comptroller or any of their duly authorized representatives copies of records of said related organization that are necessary t
12. agraphs 10 1 and 10 4 of any such Terms and Conditions of Sale with respect to the Software and Documentation Such Documentation may be updated by Licensor from time to time and such updates may constitute a change in specification Licensee acknowledges that the Software is of such complexity that it may have inherent or latent defects As Licensee s sole remedy under the warranty Licensor will provide services during the warranty period to correct documented Software errors which Licensor s analysis indicates are caused by a defect in the unmodified version of the Software as provided by Licensor Licensor does not warrant that the Software will meet Licensee s requirements or will operate in combinations which may be selected for use by Licensee or that the operation of the Software will be uninterrupted or error free Licensee is responsible for determining the appropriate use of and establishing the limitations of the Software and its associated Documentation as well as the results obtained by use thereof LICENSOR MAKES NO WARRANTY WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION OTHER THAN THOSE SET FORTH IN THIS SECTION THE WARRANTY HEREIN IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WHICH ARE HEREBY DISCLAIMED AND CONSTITUTES THE ONLY WARRANTY MADE WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION 9 LICE
13. ass to Purchaser upon completion of delivery c All freight charges and other transportation packing and insurance costs license fees custom duties and other similar charges shall be the sole responsibility of Purchaser unless included in the purchase price or otherwise agreed to in writing by Seller In the event of any loss or damage to any of the Products during shipment Seller and Purchaser shall cooperate in making any insurance claim 7 SECURITY INTEREST FILING 7 1 Purchaser grants to Seller a security interest in the Products until payment in full by Purchaser Purchaser shall sign any financing statements or other documents necessary to perfect Seller s security interests in the Products Purchaser further represents and covenants that a it will keep the Products in good order and repair until the purchase price has been paid in full b it will promptly pay all taxes and assessments upon the Products or the use thereof c it will not attempt to transfer any interest in the Products until the purchase price has been paid in full and d it is solvent and financially capable of paying the full purchase price for the Products 8 CHANGES CANCELLATION AND RETURN 8 1 Orders accepted by Seller are not subject to change except upon Seller s written agreement 8 2 Orders accepted by Seller are non cancellable by Purchaser except upon Seller s written consent and payment by Purchaser of a cancellation charge equal to 10 of the p
14. default under this Agreement i a failure by Purchaser to make any payment when due ii a failure by Purchaser to perform any other obligation under this Agreement within thirty 30 days of receipt of written notice from Seller or iii the commencement of any insolvency bankruptcy or similar proceedings by or against Purchaser Upon the occurrence of any event of default at Seller s election a the entire amount of any indebtedness and obligation due Seller under this Agreement and interest thereon shall become immediately due and payable b Seller may suspend the performance of any of Sellers obligations hereunder including but not limited to obligations relating to delivery installation and warranty services c Purchaser shall put Seller in possession of the Products upon demand d Seller may sell or otherwise dispose of all or any part of the Products and apply the proceeds thereof against any indebtedness or obligation of Purchaser under this Agreement e if this Agreement or any indebtedness or obligation of Purchaser under this Agreement is referred to an attorney for collection or realization Purchaser shall pay to Seller all costs of collection and realization including without limitation a reasonable sum for attorneys fees and Purchaser shall pay any deficiency remaining after collection of or realization by Seller on the Products In addition Seller may terminate this Agreement upon written notice to Purchaser
15. dentified in such contract Products Purchaser acknowledges that this is a commercial and not a consumer transaction Purchaser shall be deemed to have assented to and to have waived any objection to this Agreement upon the earliest to occur of any of the following Purchaser s completion or execution of this Agreement Purchaser s acceptance of all or any part of the Products Purchaser s issuance of a purchase order for any Products identified on Sellers quotation or proposal or delivery of the Products to the common carrier for shipment pursuant hereto 1 2 Refurbished Used Products For Products identified on this Agreement as used or refurbished Products these Products have been previously owned and used When delivered to Purchaser such Products will perform in accordance with the manufacturer s specifications Since pre owned Products may be offered simultaneously to several customers the availability of such Products to Purchaser cannot be guaranteed If the Products are no longer available Seller will use its best efforts to identify other suitable products in its inventory If substitute products are not acceptable to Purchaser then Seller will cancel the order and refund to Purchaser any deposits previously paid The warranty period for any used or refurbished Products will be separately stated on the quotation 1 3 Third Party Products If this Agreement includes the sale of third party products not manufactured by Seller
16. e property of Licensor or its supplier Licensee has no right title or interest in the Software the Documentation or any computer media provided by Licensor or copies except as stated herein and ownership of any such Software Documentation and computer media shall at all times remain with Licensor or its suppliers 7 LICENSE TRANSFER The Software and Documentation and the license hereunder may not be assigned transferred or sublicensed except as hereinafter provided Upon the sale or lease of the Designated Unit to a third party Licensee may transfer to such third party with Licensor s written consent and in accordance with Licensor s then current policies and charges the license to use the Software and Documentation hereunder together with the Software the Documentation the computer media provided by Licensor and all copies provided that i Licensee notifies Licensor in writing of the name and address of such third party ii such third party agrees in a written instrument delivered to Licensor to the terms of this Schedule and iii Licensee does not retain any copies of the Software or Documentation in any form 8 WARRANTIES Licensor warrants that for the warranty period provided by Licensor under the attached Terms and Conditions of Sale if any the Software shall conform in all material respects to Licensor s published specifications as contained in the applicable supporting Documentation This paragraph replaces Par
17. ent arising from Seller s negligence or a product defect 11 2 SELLER SHALL NOT BE LIABLE FOR ANY LOSS OF USE REVENUE OR ANTICIPATED PROFITS COST OF SUBSTITUTE PRODUCTS OR SERVICES LOSS OF STORED TRANSMITTED OR RECORDED DATA OR FOR ANY INDIRECT INCIDENTAL UNFORESEEN SPECIAL PUNITIVE OR CONSEQUENTIAL DAMAGES WHETHER BASED ON CONTRACT TORT STRICT LIABILITY OR ANY OTHER THEORY OR FORM OF ACTION EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY THEREOF ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SALE OR USE OF THE PRODUCTS THE FOREGOING IS A SEPARATE ESSENTIAL TERM OF THIS AGREEMENT AND SHALL BE EFFECTIVE UPON THE FAILURE OF ANY REMEDY EXCLUSIVE OR NOT 12 INSTALLATION ADDITIONAL CHARGES 12 1 General Unless otherwise expressly stipulated in writing the Products Page 6 of 12 SIEMENS Siemens Medical Solutions USA Inc 40 Liberty Boulevard Malvern PA 19355 Fax 901 255 2799 shall be installed by and at the expense of Seller except that Seller shall not provide rigging or site preparation services unless otherwise agreed to in writing by Seller for an additional charge Seller will not install accessory items such as cabinets illuminators darkroom equipment or processors for X Ray and CT equipment unless otherwise agreed to in writing by Seller 12 2 Installation by Seller If Seller specifies it will install the Products the following applies subject to fulfillment of the obligations set forth in
18. for export outside of the U S Purchaser shall pay to Seller the difference between the domestic price and the international retail price of such Product Purchaser shall deliver to Seller upon Sellers request written assurance regarding compliance with this Section in form and content acceptable to Seller 6 DELIVERY RISK OF LOSS 6 1 Delivery Date Delivery and installation dates will be established by mutual agreement of the parties as set forth in the Notice to Manufacture Letter issued by the Seller as applicable Seller shall make reasonable efforts to meet such delivery date s 6 2 Risk of Loss Title Transfer Unless otherwise agreed to in writing the following shall apply Page 5 of 12 SIEMENS Siemens Medical Solutions USA Inc 40 Liberty Boulevard Malvern PA 19355 Fax 901 255 2799 a For Products that do not require installation by Seller and for options and add on products purchased subsequent to delivery and installation of Products purchased under this Agreement delivery shall be complete upon transfer of possession to common carrier F O B Shipping Point whereupon title to and all risk of loss damage to or destruction of the Products shall pass to Purchaser b For Products that require installation by Seller delivery shall be complete upon delivery of the Products to Purchasers designated site F O B Destination whereupon title to and all risk of loss damage to or destruction of such Products shall p
19. icensor s suppliers are provided by such suppliers AS IS and with all faults SUCH SUPPLIERS DO NOT BEAR ANY OF THE RISK AS TO SATISFACTORY QUALITY PERFORMANCE ACCURACY OR EFFORT INCLUDING LACK OF NEGLIGENCE WITH RESPECT TO SUCH SOFTWARE AND DOCUMENTATION ALSO THERE IS NO WARRANTY BY SUCH SUPPLIERS AGAINST INTERFERENCE WITH LICENSEE S ENJOYMENT OF THE SOFTWARE OR AGAINST INFRINGEMENT IF LICENSEE HAS RECEIVED ANY WARRANTIES REGARDING THE DESIGNATED UNIT OR THE SOFTWARE THOSE WARRANTIES DO NOT ORIGINATE FROM AND ARE NOT BINDING ON LICENSOR S SUPPLIERS f Licensee acknowledges that portions of the Software are of U S origin Licensee agrees to comply with all applicable international and national laws that apply to the Software including the U S Export Administration Regulations as well as applicable end user end use and destination restrictions issued by U S and other governments For additional information on exporting software supplied by Microsoft see http www microsoft com exporting Revised 03 15 05 Page 10 of 12 SIEMENS Siemens Medical Solutions USA Inc 40 Liberty Boulevard Malvern PA 19355 SIEMENS REPRESENTATIVE Fax 901 255 2799 Stephen Jones 901 896 8430 TRADE IN EQUIPMENT REQUIREMENTS THE FOLLOWING APPLIES ONLY TO THE EXTENT THAT THE QUOTATION INCLUDES AN EQUIPMENT TRADE IN THESE REQUIREMENTS ARE IN ADDITION TO ANY OTHER REFERENCED TERMS AND CONDITIONS ON THE QUOTATION AND SHALL REM
20. ifies or combines operates or uses the Products other than as specified by Seller or with any product data software apparatus or program not provided or approved by Seller then the indemnity obligation of Seller under Section 13 1 shall be null and void 14 DESIGNS AND CONFIDENTIALITY 14 1 Any drawings data designs software programs or other technical information supplied by Seller to Purchaser in connection with the sale of the Created 11 5 2015 3 08 00 PM PRO 1 D629H1 TRADE SECRETS LICENSE Siemens Medical Solutions USA Inc Confidential SIEMENS REPRESENTATIVE Stephen Jones 901 896 8430 Products shall remain Seller s property and shall at all times be held in confidence by Purchaser 14 2 For all Products which utilize software for their operation such Applications Software shall be licensed to Purchaser under the terms of Seller s Software License Schedule attached hereto 14 3 Seller and Purchaser shall maintain the confidentiality of any information provided or disclosed to the other party relating to the business customers and or patients of the disclosing party as well as this Agreement and its terms including the pricing and other financial terms under which the Purchaser will be purchasing the Products Each party shall use reasonable care to protect the confidentiality of the information disclosed but no less than the degree of care it would use to protect its own confidential information and shall o
21. in the event that Purchaser is not approved for credit or upon the occurrence of any material adverse change in the financial condition or business operations of Purchaser 4 6 Financing Notwithstanding any arrangement that Purchaser may make for the financing of the purchase price of the Products the parties agree that any such financing arrangement shall have no effect on the Purchaser s payment obligations under this Agreement including but not limited to Sections 4 1 and 4 2 above 5 EXPORT TERMS 5 1 Unless other arrangements have been made payment on export orders shall be made by irrevocable confirmed letter of credit payable in U S dollars against Seller s invoice and standard shipping documents Such letter of credit shall be in an amount equal to the full purchase price of the Products and shall be established in a U S bank acceptable to Seller Purchaser shall have sole responsibility to procure all necessary permits and licenses for shipment and compliance with any governmental regulations concerning control of final destination of Products 5 2 Purchaser agrees that Products shall not at any time directly or indirectly be used exported sold transferred assigned or otherwise disposed of in a manner which will result in non compliance with applicable export Control and US Sanction laws and regulations If Purchaser purchases a Product at the domestic price and exports such Product or transfers such Product to a third party
22. isted separately in the Agreement together with any updates or revisions thereto which Licensor may provide to Licensee and all copies thereof except any Software and or Documentation licensed directly by Licensor s supplier under a separate end user license agreement accompanying the Software or the Documentation in which case Licensee agrees to be bound by that license agreement as a condition to using the Software and or Documentation Except as expressly provided herein and provided that in no event shall the warranties or other obligations of Licensor with respect to such Software or Documentation exceed those set forth in this Schedule this Schedule shall be subject to the liability limitations and exclusions and other terms and conditions set forth in the Agreement ANY USE OF THE SOFTWARE INCLUDING BUT NOT LIMITED TO USE ON THE DESIGNATED UNIT WILL CONSTITUTE LICENSEE S AGREEMENT TO THIS SOFTWARE LICENSE SCHEDULE OR RATIFICATION OF ANY PREVIOUS CONSENT 3 SOFTWARE AND DOCUMENTATION LICENSE Subject to the payment of any applicable annual license fee s whether stated separately or included in the purchase price of another product and to Licensee s acceptance of all of the obligations set forth herein and to the fulfillment of those obligations Licensor or if applicable its licensor or supplier hereby grants to Licensee a paid up nonexclusive and nontransferable except as expressly provided in this Schedule limited lice
23. jected and shall not apply to the transactions contemplated under this Agreement 21 SEVERABILITY HEADINGS 21 1 No provision of this Agreement which may be deemed unenforceable will in any way invalidate any other portion or provision of this Agreement Section headings are for convenience only and have no substantive effect 22 WAIVER 22 1 No failure and no delay in exercising on the part of any party any right under this Agreement will operate as a waiver thereof nor will any single or partial exercise of any right preclude the further exercise of any other right Page 7 of 12 SIEMENS Siemens Medical Solutions USA Inc 40 Liberty Boulevard Malvern PA 19355 Fax 901 255 2799 23 NOTICES 23 1 Any notice or other communication under this Agreement shall be deemed properly given if in writing and delivered in person or mailed properly addressed and stamped with the required postage to the intended recipient at its address specified on the face hereof 24 RIGHTS CUMULATIVE 24 1 The rights and remedies afforded to Seller under this Agreement are in addition to and do not in any way limit any other rights or remedies afforded to Seller by any other agreement by law or otherwise 25 END USER CERTIFICATION 25 1 Purchaser represents warrants and covenants that it is acquiring the Products for its own end use and not for reselling leasing or transferring to a third party except for lease back financings 26 ACCE
24. lted when these values are exceeded Chiller is OSHPD certified and includes the seismic brackets The price does not include the chiller installation and start up Kraus Start up and Warranty System Total Created 11 5 2015 3 08 00 PM Siemens Medical Solutions USA Inc Confidential PRO 1 D629H1 Extended Price 39 600 4 500 44 100 Page 3 of 12 SIEMENS Siemens Medical Solutions USA Inc 40 Liberty Boulevard Malvern PA 19355 SIEMENS REPRESENTATIVE Fax 901 255 2799 Stephen Jones 901 896 8430 OPTIONS on Quote Nr 1 D61DVM Rev 0 OPTIONS for SPAS CSG Accessories and Supplies Local All items listed below are OPTIONs and will be included on this system ONLY if initialed Extended Initial to Qty Part No Item Description Price Accept 1 KKT_MEDFCU KKT Free Cooling Unit FCU 8 876 X The KKT FCU Free Cooling Unit is an economical method of using low ambient temperatures 68 F to assist in cooling the return water from the MRI Therefore during fall winter and spring the KKT FCU can produce water cool enough in most cases to eliminate the need to operate the ECO chiller The main goal of the KKT Free cooling unit is to avoid the energy costs associated with operating the ECO chiller during colder seasons and also to provide emergency backup just in case the chiller goes down This is an optional accessory to the KKT Medixx 60 chiller 1 KKT920100 KKT Transfer Station 1 5in 7 200 X
25. ment including the following as contained therein i software programs consisting of a series of statements or instructions to be used directly or indirectly in a programmable controller or computer to bring about a certain result and ii databases consisting of systemized collections of data to be used or referenced directly or indirectly by a programmed controller or computer Notwithstanding the foregoing Software does not include firmware as such term is conventionally understood Diagnostic Maintenance Software also is not included within the scope of the Software licensed under this Schedule and is available only as a special option under a separate Diagnostic Materials License Agreement and may be subject to a separate licensing fee Documentation shall mean the documents and other supporting materials which are intended to support the use of an associated product including but not limited to instructions descriptions flow charts logic diagrams and listings of the Software in text or graphic form on machine readable or printed media Designated Unit shall mean a single control unit or computer identified on the first page of the Agreement on which Software licensed hereunder may be used by Licensee 2 SCOPE The following terms and conditions shall apply to all Software and Documentation provided by Licensor to Licensee under the Agreement whether included with other products listed in the Agreement or l
26. ncluded for this system See Detailed Technical Specifications at end of Proposal Qty Part No 1 1 KKT927144 KRAUS_CHILI NST Item Description KKT medixX 60 chiller SEP CHILLER 60 kW The KKT water chiller is designed as a compact outdoor unit with an air cooled condenser system The chiller has a capacity of 60kw for use with SEP cabinet and Siemens MRI systems MAGNETOM Avanto Espree Trio a Tim System Verio Aera XQ gradient Skyra Avanto Fit Prisma Fit Skyra Fit Prisma Technical Specifications Nominal cooling capacity 60 kW Refrigerant R407C Charge of Refrigerant 31 Ibs Quantity of compressors 2 Max ambient air temperature 120 F Min ambient air temperature 13 F Coolant 35 38 vol glycol Coolant outlet temperature range 42 8 53 6 F Temperature stability 1 5 K Air flow rate 21 780 cfm Coolant Rate min max 35 24 44 05 gpm Pumping pressure max 98 6 psig Sound pressure level 67 dB A Operating Voltage 480 V 3Ph 60 Hz Overcurrent protection device 80 A Power consumption 53 82 HP Protection Class IP 54 Water connection lt 82 ft 2 in Shipping weight 2 430 Ibs Operating weight 1 804 Ibs Length 84 45 in Width 43 31 in Heigth 80 71 in NOTE Typical Installation requires the chiller piping be restricted to 148 feet with 2 in pipe lt 99 feet above and lt 82 feet below the MRI The altitude of the site must be lt 9840 feet above sea level KKT Kraus must be consu
27. nly disclose the other party s confidential information to its employees and agents having a need to know this information The obligations of confidentiality set forth herein shall not apply to any information in the public domain at the time of disclosure or that is required to be disclosed by court order or by law 15 ASSIGNMENT 15 1 Neither party may assign any rights or obligations under this Agreement without the prior written consent of the other which shall not be unreasonably withheld Any attempt to do so shall be void except that Seller may assign this Agreement without consent to any subsidiary or affiliated company and may delegate to authorized subcontractors or service suppliers any work to be performed under this Agreement so long as Seller remains liable for the performance of its obligations under this Agreement This Agreement shall inure to and be binding upon the parties and their respective successors permitted assigns and legal representatives 16 COSTS AND FEES 16 1 In the event that any dispute or difference is brought arising from or relating to this Agreement or the breach termination or validity thereof the prevailing party shall be entitled to recover from the other party all reasonable attorneys fees incurred together with such other expenses costs and disbursements as may be allowed by law 17 MODIFICATION 17 1 This Agreement may not be changed modified or amended except in writing signed by duly a
28. nse to use the Software provided by Licensor under the Agreement solely for Licensee s own use on the Designated Unit and to use the Documentation in support of Licensee s authorized use of the Software for the purpose of operating the Designated Unit in accordance with the instructions set forth in the users manual supplied with the Designated Unit and for no other purpose whatsoever A separate license is required for each Designated Unit on which the Software is to be used Licensee may obtain from Licensor one copy of the Software licensed hereunder for backup and archival purposes only as is necessary to support Licensee s own authorized use of the Software provided that Licensee includes on or in all copies in any form all copyright trade secret or other proprietary notices contained on or in the Software as provided by Licensor Additional copies of the Documentation may be licensed from Licensor at its then applicable charges Licensee may make the Software and Documentation including any copies available only to its employees and other persons on Licensee s premises to whom such disclosure is necessary to enable Licensee to use the Software or Documentation within the scope of the license provided in this Schedule If the Software is supplied to any unit or agency of the United States Government other than the Department of Defense the Software and Documentation are classified as restricted computer software and the Governmen
29. nt based with specific inbound and outbound port requirements 10 5 Warranty service will be provided without charge during Seller s regular working hours 8 30 5 00 Monday through Friday except Seller s recognized holidays If Purchaser requires that service be performed outside these hours such service can be made available at an additional charge at Seller s then current rates The obligations of Seller described in this Section are Seller s only obligations and Purchaser s sole and exclusive remedy for a breach of product warranty 10 6 SELLER MAKES NO WARRANTY OTHER THAN THE ONE SET FORTH HEREIN AND IN THE PRODUCT WARRANTY SUCH WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSES AND SUCH CONSTITUTES THE SOLE AND EXCLUSIVE WARRANTY MADE WITH RESPECT TO THE PRODUCTS SERVICE OR OTHER ITEM FURNISHED UNDER THIS AGREEMENT 10 7 In the event of any inconsistencies between the terms of this Section 10 and the terms of the Product Warranty the terms of the Product Warranty shall prevail 11 LIMITATION OF LIABILITY 11 1 In no event shall Seller s liability hereunder exceed the actual loss or damage sustained by Purchaser up to the purchase price of the Products The foregoing limitation of liability shall not apply to claims for bodily injury or damages to real property or tangible personal property to the ext
30. ntrol direct life support machines or weapons systems in which the failure of Java technology could lead directly to death personal injury or severe physical or environmental damage Sun Microsystems Inc has contractually obligated Licensor s supplier to make this disclaimer d The Software may permit Licensor its supplier s or their respective affiliates to provide or make available to Licensee Software updates supplements add on components or Internet based services components of the Software after the date Licensee obtains its initial copy of the Software Supplemental Components If Licensor provides or makes available to Licensee Supplemental components and no other end user software licensing agreement terms are provided along with the Supplemental Components then the terms of this Software License Schedule shall apply If a supplier of Licensor or affiliates of such a supplier make available Supplemental Components and no other end user software licensing agreement terms are provided then the terms of this Schedule shall apply except that the supplier or affiliate entity providing the Supplemental Component s shall be the licensor of the Supplemental Component s Licensor its supplier s and their respective affiliates reserve the right to discontinue any Internet based services provided to Licensee or made available to Licensee through the use of the Software e The Software and Documentation supplied by L
31. o certify the nature and extent of cost incurred by Purchaser for such Product or service 27 DISPOSITION OF PRODUCTS 27 1 Purchaser expressly agrees that should Purchaser sell transfer or otherwise dispose of the Products Purchaser shall notify Seller in writing and give Seller the opportunity to purchase such Products With Purchaser s notice Purchaser shall provide Seller with a copy of the third party s binding offer to purchase the Products and Seller shall have seven 7 days to notify the Purchaser of an offer to purchase the Products 05 15 Rev Page 8 of 12 SIEMENS Siemens Medical Solutions USA Inc 40 Liberty Boulevard Malvern PA 19355 Fax 901 255 2799 SIEMENS REPRESENTATIVE Stephen Jones 901 896 8430 Software License Schedule to the Siemens Medical Solutions USA Inc General Terms and Conditions 1 DEFINITIONS The following definitions apply to this Schedule Agreement shall mean the attached i Quotation for Products and or Services including the Terms and Conditions of Sale and applicable schedules and or ii Software License Agreement describing the software licensed herein and the specific system for which the license is issued Licensor shall mean Siemens Medical Solutions USA Inc Licensee shall mean the end user to whom Licensor provides Software or Documentation for its internal use under the Agreement Software shall mean the software described in the attached Agree
32. r an update represents an enhancement of a previously purchased capability or a new capability for which the Licensee will be charged In addition some updates may require Applications Training performed by Licensor s personnel that will be offered at Licensor s prevailing rates Licensor retains the sole right to determine whether an update requires such training 6 DELIVERY RISK OF LOSS AND TITLE Notwithstanding the provisions of Section 6 of the attached Terms and Conditions of Sale if any the Software and Documentation licensed hereunder shall be delivered on or about the delivery date stated in the Agreement unless a separate delivery date is agreed upon If Software or Documentation licensed hereunder is lost or damaged during shipment from Licensor Licensor will replace it at no charge to Licensee If any Software or Documentation supplied by Licensor Page 9 of 12 SIEMENS Siemens Medical Solutions USA Inc 40 Liberty Boulevard Malvern PA 19355 Fax 901 255 2799 and licensed hereunder is lost or damaged while in the possession of Licensee Licensor will replace it at Licensor s then current applicable charges if any for materials processing and distribution Notwithstanding the provisions of Section 6 of the attached Terms and Conditions of Sale if any the Software and Documentation in any form and all copies made by Licensee including partial copies and all computer media provided by Licensor are and remain th
33. rding the final delivery date Customer is responsible for all installation related tasks Start up and first year warranty included in our price Accepted and Agreed to by Siemens Medical Solutions USA Inc SCOTT amp WHITE HEALTHCARE BY BAYLOR SCOTT amp WHITE HEALTH ITS AGENT By sign By sign Name Stephen Jones Name Title Account Executive Title Date Date By signing below signor certifies that no modifications or additions have been made to the Quotation Any such modifications or additions will be void By sign Created 11 5 2015 3 08 00 PM Siemens Medical Solutions USA Inc Confidential Page 1 of 12 PRO 1 D629H1 SIEMENS Siemens Medical Solutions USA Inc 40 Liberty Boulevard Malvern PA 19355 Fax 901 255 2799 Quote Nr Terms of Payment Purchasing Agreement SIEMENS REPRESENTATIVE Stephen Jones 901 896 8430 1 D61DVM Rev 0 10 Down 80 Delivery 10 Installation Free On Board Destination SAA Siemens Strategic Alliance SAA Siemens Strategic Alliance terms and conditions apply to Quote Nr 1 D61DVM Created 11 5 2015 3 08 00 PM Siemens Medical Solutions USA Inc Confidential Page 2 of 12 PRO 1 D629H1 SIEMENS Siemens Medical Solutions USA Inc 40 Liberty Boulevard Malvern PA 19355 Fax 901 255 2799 SIEMENS REPRESENTATIVE Stephen Jones 901 896 8430 SPAS CSG Accessories and Supplies Local All items listed below are i
34. rice of the affected Products plus any shipping insurance inspection and refurbishment charges the cost of providing any training education site evaluation or other services completed by Seller and any return cancellation or restocking fees with respect to any Third Party Products ordered by Seller on behalf of Purchaser Seller may retain any payments received from Purchaser up to the amount of the cancellation charge In no event can an order be cancelled by Purchaser or Products be returned to Seller after shipment 8 3 Seller reserves the right to change the manufacture and or design of its Products if in the judgment of Seller such change does not alter the general function of the Products 9 FORCE MAJEURE 9 1 Seller shall not be liable for any loss or damage for delay in delivery inability to install or any other failure to perform due to causes beyond its reasonable control including but not limited to acts of God or the public war civil commotion blockades embargoes calamities floods fires earthquakes explosions storms strikes lockouts labor disputes or unavailability of labor raw materials power or supplies Should such a delay occur Seller may reasonably extend delivery or production schedules or at its option cancel the order in whole or part without liability other than to return any unearned deposit or prepayment 10 WARRANTY 10 1 Seller warrants that the Products manufactured by Seller and sold here
35. riginally installed on the Designated Unit b Licensee is licensed to use the Software to provide only the limited functionality specific tasks or processes for which the Designated Unit has been designed and marketed by Licensor This license specifically prohibits any other use of the software programs or functions or inclusion of additional software programs or functions that do not directly support the limited functionality on the Designated Unit If Licensee uses the Designated Unit to access or utilize the services or functionality of Microsoft Windows Server products such as Microsoft Windows NT Server 4 0 all editions or Microsoft Windows 2000 Server all editions or uses the Designated Unit to permit workstation or computing devices to access or utilize the services or functionality of Microsoft Windows Server products Licensee may be required to obtain a Client Access License for the Designated Unit and or each such workstation or computing device Licensee should refer to the end user license agreement for its Microsoft Windows Server product for additional information c The Software may contain support for programs written in Java Java technology is not fault tolerant and is not designed manufactured or intended for use or resale as online control equipment in hazardous environments requiring fail safe performance such as in the operation of nuclear facilities aircraft navigation or communication systems air traffic co
36. ry is received Partial shipments shall be billed as made and payments for such shipments will be made in accordance with the foregoing payment terms Created 11 5 2015 3 08 00 PM PRO 1 D629H1 Siemens Medical Solutions USA Inc Confidential 4 2 Late Payment A service charge of 112 per month not to exceed the maximum rate allowed by law shall be made on any portion of Purchaser s outstanding balance which is not paid when due Payment of such service charge shall not excuse or cure Purchaser s breach or default for late payment 4 3 Payment of Lesser Amount If Purchaser pays or Seller otherwise receives a lesser amount than the full amount provided for under this Agreement such payment shall not constitute or be construed other than as on account of the earliest amount due Seller No endorsement or statement on any check or payment or elsewhere shall constitute or be construed as an accord or satisfaction 4 4 Where Payment Due Upon Installation or Completion Should any terms of payment provide for either full or partial payment upon completion of installation or thereafter and completion of installation is delayed for any reason for which Seller is not responsible beyond the installation date set forth in the Notice to Manufacture Letter issued by Seller as applicable then the balance of payments shall be due on the day following such installation date 4 5 Default Termination Each of the following shall constitute an event of
37. se abuse negligence improper application or alteration or by a force majeure occurrence as described in Created 11 5 2015 3 08 00 PM PRO 1 D629H1 Siemens Medical Solutions USA Inc Confidential SIEMENS REPRESENTATIVE Stephen Jones 901 896 8430 Section 9 hereof or by the Purchaser s failure to operate the Products in accordance with the manufacturers instructions or to maintain the recommended operating environment and line conditions which are defective due to unauthorized attempts to repair relocate maintain service add to or modify the Products by the Purchaser or any third party or due to the attachment and or use of non Seller supplied parts equipment or software without Seller s prior written approval which failed due to causes from within non Seller supplied equipment parts or software including but not limited to problems with the Purchaser s network or which have been damaged from the use of operating supplies or consumable parts not approved by Seller In addition there is no warranty coverage for any transducer or probe failure due to events such as cracking from high impact drops cable rupture from rolling equipment over the cable delamination from cleaning with inappropriate solutions or TEE bite marks Seller may effectuate any repairs at Purchaser s facility and Purchaser shall furnish Seller safe and sufficient access for such repair Repair or replacement may be with parts or products that are new u
38. sed or refurbished Repairs or replacements shall not interrupt extend or prolong the term of the warranty Purchaser shall upon Seller s request return the non complying Product or part to Seller with all transportation charges prepaid but shall not return any Product or part to Seller without Seller s prior written authorization Purchaser shall pay Seller its normal charges for service and parts for any inspection repair or replacement that falls outside of Seller s warranty Sellers warranty does not apply to consumable materials disposables supplies accessories and collateral equipment except as specifically stated in writing or as otherwise set forth in the Product Warranty 10 3 This warranty is made on condition that immediate written notice of any noncompliance be given to Seller and Sellers inspection reveals that Purchaser s claim is covered under the terms of the warranty i e that the noncompliance is due to traceable defects in original materials and or workmanship 10 4 Purchaser shall provide Seller with both on site and remote access to the Products The remote access shall be provided through the Purchaser s network as is reasonably necessary for Seller to provide warranty services under this Agreement Remote access will be established through a broadband internet based connection to either a Purchaser owned or Seller provided secure end point The method of connection will be a Peer to Peer VPN IPsec tunnel non clie
39. standing the foregoing first use of the Products by Purchaser its agents or employees for any purpose after delivery shall constitute completion of installation 13 PATENT COPYRIGHT AND OTHER INFRINGEMENT CLAIMS 13 1 Infringement by Seller Seller warrants that the Products manufactured by Seller and sold hereunder do not infringe any U S patent or copyright If Purchaser receives a claim that any such Products or parts thereof infringe upon the rights of others under any U S patent or copyright Purchaser shall notify Seller immediately in writing Provided that Purchaser gives Seller information assistance and exclusive authority to evaluate defend and settle such claims Seller shall at its own expense and option indemnify and defend Purchaser against such claims settle such claims procure for Purchaser the right to use the Products or remove or modify them to avoid infringement If none of these alternatives is available on terms reasonable to Seller then Purchaser shall return the Products to Seller and Seller shall refund to Purchaser the purchase price paid by Purchaser less reasonable depreciation for Purchaser s use of the Products The foregoing states Seller s entire obligation and liability and Purchaser s sole remedy for claims of infringement 13 2 Infringement by Purchaser If some or all of the Products sold hereunder are made by Seller pursuant to drawings or specifications furnished by Purchaser or if Purchaser mod
40. t s rights in the Created 11 5 2015 3 08 00 PM PRO 1 D629H1 Siemens Medical Solutions USA Inc Confidential Software and Documentation shall be as provided in paragraph c 2 of the Commercial Computer Software Restricted Rights clause in FAR 52 227 19 and any successor laws rules or regulations thereto If the Software is supplied to the United States Department of Defense the Software is classified as commercial computer software and the Government is furnished the Software and Documentation with restricted rights as defined in paragraph c 1 of the Rights in Technical Data and Computer Software clause in DFARS 252 227 7013 and any successor laws rules or regulations thereto 4 PROPRIETARY PROTECTION AND CONFIDENTIALITY Ownership of and title to the Software and Documentation and all copies in any form licensed under this Schedule are and will remain in Licensor or its suppliers at all times Licensee shall not i remove any copyright trade secret or other proprietary right notices contained on or in the Software or Documentation as provided by Licensor ii reproduce or modify any Software or Documentation or copy thereof iii reverse assemble reverse engineer or decompile any Software or copy thereof in whole or in part except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation iv sell transfer or otherwise make available to others the Sof
41. t are not made available at the time of de installation then trade in value will be re evaluated and any loss in value or additional costs incurred by Seller shall be deducted from the established trade in value and the pricing set forth on this Quotation will be adjusted by change order In the event that access to the trade in equipment is denied past 14 days post turnover then Purchaser shall pay to Seller a rental fee in the amount 3 5 of the total trade in value plus any additional value provided by an Elevate Promotional program included in this quotation no less than 1000 for each month or part thereof that access is denied In addition if the purchase and installation of the new equipment covered by this Quotation is not completed then Seller shall invoice Purchaser for all costs and expenses incurred by Seller in connection with the de installation and removal of the trade in equipment including but not limited to labor materials rigging out and transportation which costs shall be paid by Purchaser within thirty 30 days of the invoice date Purchaser further acknowledges and agrees that i the trade in equipment will be free and clear of all liens and encumbrances including but not limited to unpaid leases and loans and that upon request it will execute a bill of sale or other documents reasonably satisfactory to Siemens to transfer title and ownership of the equipment to Seller ii it is Purchaser s sole responsibility to dele
42. te all protected health information and any other confidential information from the equipment prior to de installation without damaging or cannibalizing the equipment or otherwise affecting the operation of the equipment in accordance with its specifications iii the equipment including all updates upgrades modifications enhancements revisions software S W disks and manuals shall be returned to Siemens in good operating condition reasonable wear and tear excepted and iv to the extent not prohibited by applicable law Purchaser shall indemnify and hold Seller harmless from and against any and all claims demands causes of action damages liability costs and expenses including reasonable attorney s fees resulting or arising from Purchaser s failure to comply with item i above FOR MR SYSTEMS cryogen levels must be least 65 upon time of de installation FOR MOBILE SYSTEMS system must be road worthy and a state issued title transferring ownership to Seller must be received by Seller prior to the removal of the mobile system FOR MODALITY TRADE SYSTEMS non ultrasound The trade in equipment must be available for inspection within two weeks of the scheduled de installation date In addition Purchaser must provide a clear path for the removal of the trade in equipment Any additional costs due to the need to use a larger rig other than a standard 80 ton rig as well as any construction activities street closings permits etc required to
43. tware or Documentation or any copy thereof except as expressly permitted by this Schedule or v apply any techniques to derive any trade secrets embodied in the Software or Documentation Licensee shall take all appropriate actions to ensure that i the Software does not leave the Designated Unit s equipment location as set forth above ii the Software is not copied by Licensee or any third parties and iii the Software is not used in any equipment other than the Designated Unit Licensee shall secure and protect the Software and Documentation and copies thereof from disclosure and shall take such actions with its employees and other persons who are permitted access to the Software or Documentation or copies as may be necessary to satisfy Licensee s obligations hereunder Prior to disposing of any computer medium computer memory or data storage apparatus Licensee shall ensure that all copies of Software and Documentation have been erased therefrom or otherwise destroyed In the event that Licensee becomes aware that any Software or Documentation or copies are being used in a manner not permitted by the license Licensee shall immediately notify Licensor in writing of such fact and if the person or persons so using the Software or Documentation are employed or otherwise subject to Licensee s direction and control Licensee shall use reasonable efforts to terminate such impermissible use Licensee will fully cooperate with Licensor so as to
44. under shall be free from defects in material or workmanship under normal use and service for the warranty period The final assembled Products shall be new although they may include certain used reworked or refurbished parts and components e g circuit boards that comply with performance and reliability specifications and controls Seller s obligation under this warranty is limited at Seller s option to the repair or replacement of the Product or any part thereof Unless otherwise set forth in the Product Warranty attached hereto and incorporated herein by reference Product Warranty the warranty period shall commence upon the earlier of the date that the Products have been installed in accordance with Section 12 5 hereof which date shall be confirmed in writing by Seller or first patient use and shall continue for twelve 12 consecutive months Seller makes no warranty for any Products made by persons other than Seller or its affiliates and Purchasers sole warranty therefor if any is the original manufacturer s warranty which Seller agrees to pass on to Purchaser as applicable The warranty provided by Seller under this Section 10 extends only to the original Purchaser unless the Purchaser obtains the Seller s prior written consent with respect to any sale or other transfer of the Products during the term of the warranty 10 2 No warranty extended by Seller shall apply to any Products which have been damaged by fire accident misu
45. ure that its premises are free of hazardous conditions and any concealed or dangerous conditions and that all site requirements are met Seller shall delay its work until Purchaser has completed the removal of any hazardous materials or has taken any other precautions and completed any other work required by applicable regulations Purchaser shall reimburse Seller for any increased costs and expenses incurred by Seller that are the result of or are caused by any such delay In the event that Seller is requested to supervise the installation of the Products it remains the Purchaser s responsibility to comply with local regulations Seller is not an architect and all drawings furnished by Seller are not construction drawings If local labor conditions including a requirement to use union labor require the use of non Seller employees to participate in the installation of the Product or otherwise causes delays or any additional expenses then any such additional costs shall be at Purchaser s expense 12 4 Regulatory Reporting In the event that any regulatory activity is performed by anyone other than Seller s authorized personnel then Purchaser shall be responsible for fulfilling any and all reporting requirements 12 5 Completion of Installation Installation shall be complete upon the conclusion of final calibration and checkout under Seller s standard procedures to verify that the Products meet applicable written performance specifications Notwith
46. uthorized representatives of the parties 18 GOVERNING LAW WAIVER OF JURY TRIAL 18 1 This Agreement shall be governed by the laws of the state where the Product s will be installed without regard to that state s choice of law principles 18 2 EACH OF THE PARTIES EXPRESSLY WAIVES ALL RIGHTS TO A JURY TRIAL IN CONNECTION WITH ANY DISPUTE UNDER THIS AGREEMENT 19 COST REPORTING 19 1 Purchaser agrees that it must fully and accurately report prices paid under this Agreement net of all discounts as required by applicable law and contract including without limitation 42 CFR 1001 952 h in all applicable Medicare Medicaid and state agency cost reports Purchaser shall retain a copy of this Agreement and all other communications regarding this Agreement together with the invoices for purchase and permit agents of the U S Department of Health and Human Services or any state agency access to such records upon request 20 INTEGRATION 20 1 These terms and conditions including any attachments or other documents incorporated by reference herein constitute the entire complete and exclusive statement of agreement with respect to the subject matter hereof and supersede any and all prior agreements understandings and communications between the parties with respect to the Products Purchaser s additional or different terms and conditions stated in a purchase order bid documents or any other document issued by Purchaser are specifically re
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