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philips healthcare service agreement terms and conditions

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1. 6 The use or disclosure of any of the Philips Proprietary Information by Customer s Trainee s for purposes other than the service maintenance or repair of the Covered System without Philips prior express written consent is a breach of this Attachment and an unauthorized use or disclosure of Philips trade secrets or other proprietary rights If there is such an unauthorized use or disclosure Philips will be entitled to compensation for all damages arising out of or resulting therefrom including all consequential damages and attorney s fees incurred by Philips Considering the substantial investment that Philips has in the Philips Proprietary Information a violation by or for Customer of any provision of this Attachment or the Customer Employee Non Disclosure Agreement by Customer s Trainee s will cause irreparable injury to Philips and Philips will be entitled in addition to any other rights and remedies it may have at law or in equity to an injunction enjoining and restraining the Customer from violating or continuing to violate its obligations under this Attachment Customer confers jurisdiction to enforce the provisions of this Attachment upon the courts of any State of the United States Customer shall indemnify and hold Philips harmless from any damages resulting from Customer or Trainee s breach of this Attachment 7 The obligations hereunder to maintain the confidentiality of Philips Proprietary Information will endure perm
2. 2 REV 8 8 2012 PHILIPS 7 6 Data reconstruction The Customer shall follow the recommended back up processes as outlined in the System Installation or Reference Guides The Customer is also responsible for the reconstruction restoration retrieval or recovery of any lost or altered patient records files programs or data Philips is not responsible for the reconstruction restoration retrieval or recovery of any lost or altered files data or programs For an additional charge based upon published labor and material rates Philips will offer services on acommercially reasonable efforts basis to reconstruct data 7 7 Intermediate Resolutions Customer shall implement any intermediate System resolutions or workarounds as requested by Philips while a Philips seeks a long term System resolution 8 SERVICE LIMITATIONS 8 1 Software Restoration If the Software fails and the supported application Software requires restoration then Philips will reinstall the application Software database Software and operating system to the revision level that existed prior to the malfunction or failure and Philips will attempt to reinstall the customer created data backup If the customer created data backup cannot be used to re install any data to the System the customer will hold sole responsibility for the loss of data Custom or third party Software custom database configurations or reports and Customer written product interfaces are not included If a s
3. approved supplier s facility Customer shall thereupon have good and marketable title thereto free and clear of all liens claims and encumbrances CONFIDENTIAL RightFit Business Agreement Hospital Name Page 5 of 12 Rev 6 14 2012 PHILIPS 3 Returns Customer may return Products in accordance with and subject to Philips Return Policy as in effect from time to time A copy of Philips Return Policy as currently in effect is attached as Attachment B hereto Notwithstanding the terms of the Return Policy and as long as Customer s total restock returns do not exceed 15 of total purchases in any given month then Customer s returns of Stock Products shall not be subject to any restocking fees All returns in excess of 15 in any given month shall be charged in accordance with the Return Policy currently in effect Customers returns of non Stock Products shall be subject to reimbursement of any restocking fees and similar charges incurred by Philips 4 LIMITED WARRANTY THE WARRANTIES SET FORTH IN Attachment C ATTACHED HERETO ARE THE ONLY WARRANTIES MADE BY PHILIPS IN CONNECTION WITH THE PRODUCTS AND THE TRANSACTIONS CONTEMPLATED BY THIS RIGHTFIT PARTS PURCHASE RELATIONSHIP EXHIBIT AND ARE EXPRESSLY IN LIEU OF ANY OTHER WARRANTIES WHETHER WRITTEN ORAL STATUTORY EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE D LIMITATION OF LIABILITY AND DISCLAIMER
4. 1 LIMITATION OF LIABILITY THE TOTAL LIABILITY IF ANY OF PHILIPS FOR ALL DAMAGES AND BASED ON ALL CLAIMS WHETHER ARISING FROM BREACH OF CONTRACT BREACH OF WARRANTY NEGLIGENCE INDEMNITY STRICT LIABILITY OR OTHER TORT OR OTHERWISE ARISING FROM A PRODUCT AND OR SERVICE IS LIMITED TO THE PRICE PAID HEREUNDER FOR THE PRODUCT OR SERVICE THIS LIMITATION SHALL NOT APPLY TO THIRD PARTY CLAIMS FOR BODILY INJURY OR DEATH CAUSED BY PHILIPS NEGLIGENT ACT OR OMISSIONS 2 DISCLAIMER IN NO EVENT SHALL PHILIPS BE LIABLE FOR ANY INDIRECT PUNITIVE INCIDENTAL CONSEQUENTIAL OR SPECIAL DAMAGES INCLUDING WITHOUT LIMITATION LOST REVENUES OR PROFITS BUSINESS INTERRUPTION LOSS OF DATA OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES WHETHER ARISING FROM BREACH OF THE TERMS IN THE QUOTATION BREACH OF WARRANTY NEGLIGENCE INDEMNITY STRICT LIABILITY OR OTHER TORT E FORCE MAJEURE Neither Philips or Customer shall be deemed in default of their respective obligations under this Agreement for a failure to perform because of a force majeure event including but not limited to acts of God a public enemy the government of any country state or political subdivision or regulatory agency thereof or entity created thereby embargoes acts of any person engaged in subversive activity or sabotage fires floods explosions or other catastrophes epidemics or quarantine restrictions strikes or other labor stoppages slowdowns or disputes or other cause beyo
5. By By Print Name Print Name Print Title Print Title HIPAA Coordinator Please return executed copy to Philips Healthcare Attn HIPAA Coordinator 22100 Bothell Everett Hwy M S 665 Bothell WA 98021 8 REV 5 17 2012 PHILIPS This RightFit Business Agreement Agreement is effective as of the __ day of 2012 Effective Date between Philips Healthcare a division of Philips Electronics North America Corporation Philips and customer name location RIGHTFIT BUSINESS AGREEMENT The Products sold pursuant to this Agreement consist of replacement parts for certain imaging equipment other than the Equipment for which Philips is providing Service under a separate Service Agreement A PRODUCT FAVORABLE PRICING The pricing for each Product shall be as follows 1 Stock Products Products that are within inventory at Philips The price for a Product sold from Philips inventory Stock Products shall be Market Price less __ based on an Annual Volume Product Purchase Target of per schedule below Annual Volume Product Discount on Stock Products Purchase Targets 500K 1 0M 10 1 0M 1 5M 12 5 1 5M 15 Market Price shall be determined by Philips in its sole discretion and judgment acting in good faith and is intended to approximate the average industry wide price for a like part at the time of sale Market Price may fluctuate from day to day based on the
6. CUSTOMER RESPONSIBILITIES During the term of this Agreement Customer will 3 1 Ensure that the Site is maintained in a clean and sanitary condition and that the System product or part is decontaminated prior to service shipping or trade in as per the Instructions in the User manual 3 2 Dispose of hazardous or biological waste generated 3 3 Maintain operating environment within Philips specifications for the Site including temperature and humidity control incoming power quality incoming water quality and fire protection system 3 4 Use the System in accordance with the published manufacturer s operating instructions 4 SYSTEM AVAILABILITY If Customer schedules service and the system is not available at the agreed upon time then Philips may cancel the service or charge the Customer at the prevailing demand service rates for all time spent by Philips service personnel waiting for access to the System 5 PAYMENT All payments under this Agreement are due thirty 80 days from the date of Philips invoice until the Agreement amount and all applicable taxes and interest are paid in full Customer will pay interest on any amount not paid when due at the lesser of 1 5 interest per month or the maximum rate permitted by applicable law 6 EXCUSABLE DELAYS Philips is excused from performing under this Agreement when Philips delay or failure to perform is caused by events beyond Philips reasonable control including but not limited to
7. 45 C F R Part 164 Subpart E Privacy Rule if the PHI in Philips possession constitutes a Designated Record Set 164 504 e 2 ii F g Within forty 40 days of receiving a written request from Customer make available to the Customer the information required for the Customer to provide an accounting of disclosures of PHI as required by the Privacy Rule 164 504 e 2 ii G 6 REV 5 17 2012 PHILIPS h Make its internal practices books and records relating to the use and disclosure of PHI available to the Secretary of HHS for purposes of determining Customer s compliance with the Privacy Rule 164 504 e 2 ii H i If an Underlying Contract expires or terminates return to Customer or destroy all PHI including such information possessed by Philips subcontractors as a result of the Underlying Contract and retain no copies if it is feasible to do so If return or destruction is infeasible Philips shall extend all protections limitations and restrictions contained in this Addendum to Philips use and or disclosure of any retained PHI and to limit further uses and or disclosures to the purposes that make the return or destruction of the PHI infeasible This provision shall survive the termination or expiration of this Addendum and or any Underlying Contract 164 504 e 2 ii I j Use reasonable commercial efforts to mitigate any harmful effect that is known to Philips of a use or disclosure of P
8. 90 calendar days of the original shipment date or as stated at the time of sale Please contact the Philips Customer Service Staff to obtain an RMA number prior to returning product 2 Warranty Credit will only be issued when a warranty replacement has been ordered Warranty returns without a warranty re order will be treated as restock 3 All warranty parts must be returned to Philips within 95 calendar days of the original shipment date 4 All warranty parts returned without a valid RMA number will be processed as an Exchange part and no credit will be issued 5 All warranty claims will undergo a technical review validation and credit will only be issued on valid and approved warranty claims LIMITED WARRANTY Philips warrants that the parts other than X ray tubes will meet manufacturer specifications during the applicable Warranty Period defined above Warranties for any other Parts if any are exclusively those offered by the manufacturer or refurbisher of such Parts CONFIDENTIAL RightFit Business Agreement Hospital Name Page 12 of 12 Rev 6 14 2012 Exhibit 8 PHILIPS ADDITIONAL PATIENT CARE AND CLINICAL INFORMATICS SOFTWARE MAINTENANCE AGREEMENT TERMS amp CONDITIONS 1 SERVICES PROVIDED Commencing on the Effective Date and subject to the limitations below Philips will provide services listed on the quotation s for Covered System Table 1 Coverage Types Software Installation Services
9. all monies due or that may become due under this Agreement in spite of any collateral arrangements Customer may have with such Third Party Organization or any payments Customer has made to the Third Party Organization Philips has no contractual relationship for the Services rendered to Customer except as set forth herein To the extent that the parts and services Philips provides are not covered by Customer s arrangement with such Third Party Organization Customer shall promptly pay for such parts and services on demand TAXES Any applicable tax will be invoiced to and payable by Customer along with the Agreement Price in accordance with the payment terms set forth in this Agreement unless Philips receives a tax exemption certificate from Customer which is acceptable to the taxing authorities Customer will not be obligated to pay any federal state or local tax imposed upon or measured by Philips net income INDEPENDENT CONTRACTOR Philips is Customer s independent contractor not Customer s employee agent joint venture or partner Philips employees and Philips subcontractors are under Philips exclusive direction and control Philips has no liability or responsibility for and does not warrant customer s or customer s employees act or omissions related to any services that are performed by customer s employees under this agreement RECORD RETENTION AND ACCESS If Section 1861 v 1 I of the Social Security Act applies to this A
10. an individual s to serve as Customer system administrator System Administrator and an alternate who will serve as Philips primary support contacts These individuals should be familiar with all aspects of training provided by Philips including end user and system administrator training In addition the System Administrator shall maintain the integrity of the System operation and ensuring that proper backup procedures are in place 7 2 Remote access Customer must provide necessary remote access required information and support for the System to connect to Philips Remote Service PRS PRS is the basis for Services delivered under this Exhibit Customer waives all rights to services and service deliverables under this agreement unless PRS connectivity is enabled and maintained 7 3 Security The Customer is solely responsible for providing adequate security to prevent unauthorized System access to Philips or its third party vendors proprietary and confidential information 7 4 Software version levels Customer must maintain its Systems at a currently supported version to receive support under this Exhibit 7 5 Hardware revision levels The Customer must maintain all associated System hardware firmware and middleware at the required revision levels for the software version To receive software updates and upgrades the Customer must maintain all associated hardware to the then current specification for the software updates or upgrades
11. by Philips to perform certain duties and responsibilities included within this Exhibit 3 EXCLUSIONS Unless specifically included in this Agreement the Services do not include providing or paying the cost 1 of 3 1 3 2 3 3 3 4 3 5 3 6 Any rigging or structural alteration incident to the Services Consumable items and supplies such as biomedical laser tubes and patient used pads cryogens PET calibration sources film batteries cassettes Cosmetic repairs The cost of factory reconditioning rebuilds or overhauls if repairs cannot maintain the equipment in satisfactory operating condition Disposing hazardous infectious or biomedical waste or materials Providing service to any System under a current service agreement between Customer and another vendor until such agreements expire or are terminated by Customer Philips is not liable for any cancellation penalty or cost associated with Customer s termination of any such agreement REV 5 17 2012 2 PHILIPS 3 7 Unless otherwise specified in the quotation maintaining or repairing third party products nuclear camera detector crystals CT Tubes and radiation therapy tubes x ray tubes flat panel detectors image intensifiers magnet replacement magnet refrigeration system coldhead compressor chillers MR RF rooms surface coils HVAC systems power conditioners uninterruptible power supplies special ultrasound transducers probes accessory or attac
12. changes in third party Hardware or Software In the case of a planned upgrade of the System that involves modifications to the interface specifications Philips requires that detailed technical information on such modifications be made available to Philips at least ninety 90 days in advance of the planned upgrade In such a case Philips shall work with the third party to understand changes in interface specifications and format and may modify and upgrade the System to support such new interface specifications at a schedule and additional cost to be mutually approved by Philips and the Customer The Customer shall pay the cost of any additional work required to implement and support the new interface specifications at Philips then current standard labor and material rates for such Service SOFTWARE UPDATES UPGRADES AND FIXES If a software upgrade update or fix is available for the System is included in the Agreement and the requirements of the Agreement are satisfied then Philips will update or upgrade the System application software during the term of the Agreement as follows 4 1 Philips will provide Software updates and upgrades consisting of revisions to and new versions of Software for existing applications Third party software including but not limited to operating system licenses database software licenses client access licenses and anti virus software is not included Hardware updates and upgrades are not included Customer ha
13. disclosed during such Breach 13402 b of the ARRA 7 REV 5 17 2012 PHILIPS 3 4 Contact Information If an individual in seeking an accounting of the disclosures of his her PHI requests that Customer provide such individual with the identity of and a contact at Philips in Philips capacity as a business associate of Customer Customer may provide the individual with the following Philips contact information Philips Healthcare Attn HIPAA Coordinator 22100 Bothell Everett Hwy M S 665 Bothell WA 98021 13405 c 3 B of the ARRA 4 TERMINATION BY CUSTOMER Should Customer become aware of a breach of a material term of this Addendum by Philips the Customer shall provide Philips with written notice of such breach in sufficient detail to enable Philips to understand the specific nature of the breach Customer shall be entitled to terminate the Underlying Contract associated with such breach if after Customer provides the notice to Philips Philips fails to cure the breach within a reasonable time period specified by Customer in such notice provided however that such time period specified by Customer shall be based on the nature of the breach involved 164 504 1 ii A B amp 164 314 a 2 i D 5 MISCELLANEOUS 5 1 Interpretation The terms of this Addendum shall prevail in the case of any conflict with the terms of any Underlying Contract to the extent necessary to allow Customer to comply with the HIPAA Regul
14. for Coverage Types ee ee Updates and Software Updates and Hardware Coverage PP Upgrades Upgrades Software Maintenance Agreement Included Included Included Not Available Software Maintenance Agreement See Hardware with Hardware Support Meuaga penges Included Support Attachment 2 4 1 TELEPHONE AND REMOTE SUPPORT 2 1 2 2 2 3 2 4 2 5 Telephone Support Telephone and Remote Support coverage is included with all Service Agreements identified in the Exhibit Technical Telephone and Remote Support coverage Services are available twenty four hours per day seven days per week including Philips recognized holidays Clinical Telephone and Remote Support coverage is available Monday through Friday between 8 00 AM and 5 00 PM local time excluding Philips observed holidays Initial Telephone Response If Philips receives a Customer request for service Monday through Friday between 8 00 AM and 5 00 PM local time excluding Philips observed holidays then Philips will make reasonable efforts to make an initial response within one hour from the receipt of the request Otherwise Philips will respond within two hours of the receipt of the original message Remote Access amp Diagnostics Philips may remotely access the System to perform services Customer shall provide Philips access to the System On Site Response Philips primary method for Software services is telephone and Philips Remote Services Philips may prov
15. for parts ordered prior to 3 00 PM Eastern 3 8 Planned Maintenance If Planned Maintenance Service is included in the agreement then Philips will provide Customer a planned maintenance schedule for the Covered Equipment Philips will provide such planned maintenance during the Service Coverage hours at a mutually agreed upon time Customer will make the Covered Equipment available in accordance with this schedule Philips will provide planned maintenance on the Covered Equipment at scheduled intervals Philips may perform Planned Maintenance activities at the Philips repair facility for certain Patient Care Equipment If loaner equipment is included in the Service Agreement and provided to Customer then Customer will execute a loaner agreement to document its responsibility for any loss or damage to such equipment while in Customer s possession All terms and conditions of the Service Agreement and this Services Exhibit will apply to the loaner equipment 4 CUSTOMER RESPONSIBILITIES 4 1 Support Parts Agreement 4 1 1 Ensure that all Patient Care Equipment of the same model number at the Patient Care Equipment Site is covered by the same Support Parts Agreement program a separate Philips service agreement except Biomed Assist Services or Philips standard warranty If such service agreement or warranty expires during the term of the Service Agreement then all equipment of the same model as the Patient Care Equipment must be added to the existin
16. replaced part is a recyclable or exchange part as indicated on Philips published price book then Customer must return to Philips the failed recyclable or exchange part for which the replacement part was furnished within seven 7 days of shipment of the replacement part If the failed part is not returned to Philips in the time stated Customer will pay Philips in addition to any other amounts due Philips Philips published list price for such parts plus freight 4 5 Remote Access For Philips to provide remote support Customer must provide remote access to the Patient Care Equipment via Philips specified connection as described in the Service Agreement and notify Philips of any changes to connection procedures Customer must also provide Philips with access to domain accounts passwords and connections that are necessary to perform required Services 2 REV 5 17 2012 PHILIPS 4 6 Security Customer shall provide security to prevent unauthorized Patient Care Equipment access to proprietary and confidential information 4 7 Software version levels Customer must maintain its Systems at a currently supported version to receive support under this Exhibit 4 8 Hardware revision levels The Customer must maintain all associated System hardware firmware and middleware at the required revision levels for the software version To receive software updates and upgrades the Customer must maintain all associated hardware to the then current specific
17. s selection and scheduling of upgrades installation under this Exhibit and 4 2 3 The System that will receive the update or upgrade must meet the specifications of the update or upgrade Customer shall provide the System hardware or software necessary to meet such specifications 4 3 Unless specifically included elsewhere in this agreement software updates upgrades and fixes do not include functionality applications options or the like that were not purchased with the System including virus protection software security patches custom interface software operating system software software updates of third party software e g Citrix Philips shall have no responsibility to provide software upgrades updates or fixes for minor software defects 4 4 Customer may not resell transfer or assign the right to such upgrades updates or fixes to any third party All upgrades updates and fixes provided to the System under this Exhibit are subject to the terms and conditions of this Exhibit the Agreement and any license terms and conditions included in the purchase of the System from Philips or later provided to Customer 5 INSTALLATION SERVICES FOR SOFTWARE UPGRADES UPDATES AND FIXES Philips will install the upgrades updates or fixes that Customer is entitled to receive under this Agreement either on site or remotely at Philips sole discretion at a time mutually agreed to by Philips and the Customer Philips will provide clinical support
18. 9 4 Any network related problems 9 5 The cost of consumable materials including batteries software media and cassettes 9 9 3 REV 8 8 2012 PHILIPS SOFTWARE MAINTENANCE AGREEMENT HARDWARE SUPPORT COVERAGE If included in the Agreement Philips will provide hardware support Services during standard coverage hours Monday through Friday 8 00 AM to 5 00 PM local time excluding Philips recognized holidays Hardware support coverage provides Customers technical or biomed support organization with clinical and technical phone support troubleshooting parts and repairs as follows 1 1 Support Parts If the Agreement includes Support Parts then Philips will provide the technical and clinical phone support and parts for corrective services for System hardware covered under this Exhibit Unless otherwise specified parts will be shipped via priority delivery 2 Exchange If the Agreement includes Exchange coverage then Philips will provide technical and clinical phone support and determine whether corrective maintenance for particular System components will include System exchange instead of parts Defective broken or otherwise replaced components will become Philips property and will be promptly removed from the System Site Unless otherwise specified exchange Systems will be shipped via priority delivery 3 Bench If the Agreement includes Bench coverage then Philips will provide the technical and clinical phone support and d
19. AR 12 212 Computer Software and for Department of Defense purchases DFAR 252 227 7015 Technical Data Commercial Items and DFAR 227 7202 3 Rights in Commercial Computer Software or Computer Software Documentation c if a federal government or other public sector customer has a need for rights not conveyed under these terms it must negotiate with Philips to determine if there are acceptable terms for transferring such rights and a mutually acceptable written agreement specifically conveying such rights must be executed by both parties 1 3 Parts Coverage If Parts or Combination parts and labor Pool coverage is not included in the Agreement then Philips will sell parts to Customer at Philips published list price If Parts coverage is included in the Agreement then the cost of parts used in corrective maintenance of the Covered System at the Covered System Site is included in this Exhibit subject to the terms and conditions of the Agreement Customer may request parts to maintain service or repair only Covered Systems at the Site Customer may not resell or exchange such parts with any third party If a replaced part is a returnable part as indicated by Philips Customer must return to Philips the returnable part within 14 days of shipment If the parts are resold or exchanged or the part is not returned to Philips in the time stated Customer shall pay Philips published list price for such parts plus freight and any other amounts due Ph
20. HI by Philips that violates the requirements of this Addendum k Implement administrative physical and technical safeguards Safeguards that reasonably and appropriately protect the confidentiality integrity and availability of ePHI as required by 45 C F R Part 164 Subpart C Security Rule 164 314 a 2 i A Ensure that any agent and subcontractor to whom Philips provides ePHI agrees to implement reasonable and appropriate safeguards to protect ePHI 164 314 a 2 i B m Report promptly to Covered Entity any Security Incident of which Philips becomes aware 164 314 a 2 i C n Make its policies procedures and documentation required by the Security Rule relating to the Safeguards available to the Secretary of HHS for purposes of determining Customer s compliance with the Security Rule 68 Fed Reg 8334 8359 and o Comply with such other requirements applicable to business associates that are required to be incorporated into this Addendum by Sections 13401 a and 13404 a of HITECH and any regulations implementing those provisions as promulgated by the Secretary of Health and Human Services 3 2 Permitted Uses and Disclosures of PHI Except as otherwise specified in this Addendum Philips may make any and all uses and disclosures of PHI necessary to perform its obligations under the Underlying Contracts Unless otherwise limited herein Philips may a Use the PHI in its possession for its prope
21. PHILIPS HEALTHCARE SERVICE AGREEMENT TERMS AND CONDITIONS 1 SERVICES PROVIDED The services listed in the quotation the Services are offered by Philips Healthcare a division of Philips Electronics North America Corporation Philips only under the terms and conditions described below and on any exhibits and attachments each of which are hereby incorporated the Agreement 2 EXCLUSIONS The Services do not include 2 1 Servicing or replacing components of the system other than those systems or components listed in the Exhibits the System that is at the listed location Site 2 2 Servicing System if contaminated with blood or other potentially infectious substances 2 3 Any service necessary due to i a design specification or instruction provided by Customer or Customer representative ii the failure of anyone to comply with Philips written instructions or recommendations iii any combining of the System with other manufacturers product or software other than those recommended by Philips iv any alteration or improper storage handling use or maintenance of the System by anyone other than Philips subcontractor or Philips v damage caused by an external source regardless of nature vi any removal or relocation of the System or vii neglect or misuse of the System 2 4 Any cost of materials supplies parts or labor supplied by any party other than Philips or Philips subcontractors 3
22. Philips If such written consent is given and in order to protect Philips rights including without limitation trade secrets and copyrights in the Software and Documentation Customer will reproduce and incorporate Philips trade secret notice copyright notice or any other identifying legends in any reproductions duplications or copies of the Software or Documentation or any part of it made by Customer All restrictions in this Attachment relating to the Software and Documentation will apply to any such reproductions duplications or copies 2 3 Philips may limit the number of User Licenses provided to Customer under a valid service contract see Section 4 2 below User is defined as a specific individual e g identified by an individual login id access point or user name who may access and use the Software at any time Customer may transfer the license from one User to another only when the original User no longer requires access and is no longer permitted access to the Software at any time without additional fee Philips also may limit the number of additional Users purchased by and made available to Customer DOCUMENTATION The Software and Documentation is licensed by Philips for ultimate end use by government agencies only under the following conditions a service and technical data rights in the Software and Documentation include only those rights customarily provided to end user customers as defined in this Attachment b this cus
23. Philips may provide non Philips Software assistance on a time and materials basis at Philips then current time and materials rates as available 6 EXCLUSIONS In addition to the Service Exclusions set forth in the Agreement the following Service Exclusions apply to Services 6 1 Any combining of the System with a non qualified device A non qualified device is 6 1 1 Any product hardware firmware software or cabling not supplied by Philips whether used internal or external to System without Philips approval Examples include software patches security fixes and service packs from the operating system web browser or database software manufacturer s Any product supplied by Philips that has been modified by the Customer or any third party and Any product maintained under this Agreement in which the Customer does not allow Philips to incorporate engineering improvements 6 1 4 Any product that has reached its End of Life End of Life means equipment that is at least six 6 months beyond the end of life date which is determined by the manufacturer 6 1 5 Operating system software issues that manifest themselves in non performance of another installed application and affect use or performance of the System 6 Any network related problems 7 The cost of consumable materials including batteries software media and cassettes DD _ ok wiv 3 REV 5 17 2012
24. TS OR SERVICES WHETHER ARISING FROM BREACH OF CONTRACT BREACH OF WARRANTY NEGLIGENCE INDEMNITY STRICT LIABILITY OR OTHER TORT PROPRIETARY SERVICE MATERIALS Philips may deliver or transmit certain proprietary service materials including software tools and written documentation that have not been purchased by or licensed to Customer The presence of this property within the Site will not give Customer any right or title to this property or any license or other right to access use or decompile this property Customer will use all reasonable efforts to protect this property against damage or loss and to prevent any access to or use of this property by any unauthorized party Customer shall immediately report to Philips any violation of this provision THIRD PARTY MANAGEMENT If Customer has contracted with a third party service management organization asset management company maintenance management company technology management company maintenance insurance organization or the like Third Party Organization for purposes of centralized billing and management of services provided to Customer at Customer s written request Philips will route invoices for payment of services rendered by Philips to such Third Party Organization and accept payment from them on Customer s behalf Notwithstanding the above the services provided by Philips are subject solely to the terms and conditions set forth in this Agreement Customer guarantees the payment of
25. a system failure is attributed to Hardware not supported under the Agreement the Customer shall restore the Software operating system and database Software before Philips begins any Software restoration efforts Philips may offer for an additional charge based upon published labor and material rates Hardware support and Software restoration Services 5 2 Anti Virus Statement Philips Software is a computer based medical product and therefore may be subject to attack by outside computer viruses The Software required to prevent attack by a computer virus must be constantly monitored and updated Customer shall install and maintain anti virus Software in accordance with the System Installation or Reference guides After installing the software Customer shall have the burden of proof if it claims that Philips introduced a Virus discovered in the software Customer will pay an additional amount based on Philips then current time and materials rates for such work in respect of Services rendered in connection with a Virus that was not introduced by Philips Philips shall use reasonable efforts to notify Customer if Philips becomes aware of any Virus in the Software licensed to Customer under this Agreement 5 3 Non Philips Software Assistance Requests for assistance with Hardware operating systems communications network Third Party Software printer configuration etc are outside the scope of this Agreement However if Customer s request then
26. a valid RMA number or it will be processed as an Exchange part 4 lf the part is returned within 20 calendar days from the original date of shipment the following Restock credit will apply Inventory Sourced Un Opened 05 90 Restock Fee 10 Un Opened 0 As charged by Supplier Opened eeen 85 Restock Fee 15 Opened As charged by Supplier After 20 Calendar Days No Credit Part processed as an Exchange ALL PARTS MUST BE RETURNED TO Philips Healthcare 400 Brick Church Park Drive Nashville TN 37207 Any questions call 866 507 4793 CONFIDENTIAL RightFit Business Agreement Hospital Name Page 11 of 12 Rev 6 14 2012 PHILIPS WARRANTY POLICY ATTACHMENT C Philips warrants Product against any defects or malfunctions for 90 calendar days unless otherwise specified at the time of sale Details of warranties for X ray tubes digital plates and ultrasound transducers will be made available at the time of order or by inquiry to Philips This warranty is void if the serial number has been altered or removed from the Product If the failure of the Product is a result of accident abuse operator abuse normal wear amp tear misapplication or Acts of God Philips shall have no responsibility under this warranty policy Warranty terms and credit terms are as follows 1 All warranty claims require a valid RMA Return Material Authorization number valid for warranty only to be requested within
27. acts of God acts of third parties acts of the other party acts of any civil or military authority fire floods war terrorism 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 7 TERM AND TERMINATION 7 1 The term of this Agreement shall be set forth in the quotation s attached hereto and incorporated herein 7 2 This Agreement is non cancelable by Customer and will remain in effect for the term specified in this Agreement However Customer may cancel this Agreement upon 60 days written notice to Philips i representing that the System is being permanently removed from the Site and that the System is not being used in any other Customer site or ii specifically describing a material breach or default of the Agreement by Philips provided that Philips may avoid such cancellation by curing the condition of breach or default within such 60 day notice period 7 3 In addition if the Customer sells or otherwise transfers any of the System to a third party and the System remains installed and in use at the same location but such third party does not assume the obligations of the Customer under this Agreement or enter into a new service agreement with Philips with a term at least equal to the unexpired term of this Agreement then the Customer may ter
28. al employed by the Employer all Philips Proprietary Information then in my possession custody or control will not retain any copies or reproductions of correspondence memoranda reports notebooks drawings photographs excerpts or any other documents relating in any way to the Philips Proprietary Information that are entrusted to me at any time during my employment with the Employer If Employer does not designate an employee or agent to accept the surrender of the information and material as required above will immediately inform Philips of these circumstances For a period of one year from the date of termination or retirement of my employment with Employer will not directly or indirectly install service maintain or repair the type of Covered System on which am being trained unless become employed by Philips one of its authorized dealers or distributors or a Philips customer having an agreement similar to the agreement that permitted me to attend the training acknowledge that no license or right is granted hereby and no license or right will be incorporated herein by reference by implication or by other means with respect to or under any invention patent application patent copyright trade secret or proprietary right contained in or in any way relating to the Philips Proprietary Information This Agreement and all matters relating to the construction interpretation and enforcement thereof will be governed by the laws of
29. analysis techniques or maintenance of any Covered System service notes safety bulletins installation manuals service manuals service diagnostic tools or techniques and any other corresponding information of Philips or any of its predecessors successors affiliates subsidiaries or assigns acknowledge that as part of Philips training of me in the installation service maintenance and repair of the Covered System may receive the benefit of Philips substantial investment in the Philips Proprietary Information including thousands of man hours of work by Philips employees in the development of teaching materials for its training school and development of special troubleshooting and diagnostic methods and protocols relating to the installation service maintenance and repair of the Covered System further acknowledge that as part of the Philips training may be given extensive teaching regarding the theory of design and operation of the Covered System including training on how to set up and operate such System As part of the training may be taught to analyze the design and details of operation of the system and subsystems in the Covered System During the training program may have disclosed to me Philips Proprietary Information that is not available outside of Philips including detailed schematic diagrams of the Covered System the Philips instructors may go through the schematics with me and discuss the operation of the System sys
30. and Customer fails to provide the access described in section 6 then Customer waives its rights to Services under this Agreement and any uptime guarantee CRYOGENS Applies only to MRI Service 7 1 If Cryogens are included in this agreement Customer shall report any magnet cooling system cold head compressor or chiller malfunction within 24 hours If customer fails to report any malfunctions then customer is responsible for any additional cryogen expenses 7 2 If the System is not connected to the PRS then Customer shall report readings for all System covered by this Agreement into the Magnet Monitoring System at 1 800 722 9377 option 8 each week 7 3 Philips may increase the price for Cryogen services if the Consumer Price Index CPI for open market crude helium prices as reported by the Bureau of Land Management BLM is increased by five percent 5 percent or more during any 12 month period REV 5 17 2012 Exhibit 2 PH Li PS ADDITIONAL SUPPORT AND ASSIST COVERAGE TERMS amp CONDITIONS 1 SERVICES PROVIDED 1 1 Training If training is included with the Agreement then Philips will admit the number of employees of Customer identified on the face of the Agreement Trainee s into the next scheduled training course that relates to the System identified in the quotation or this agreement where space is available or to any subsequent scheduled course as the parties may agree Philips will provide training to the Traine
31. anently Customer may not assign this Attachment nor may any party succeed to Customer s rights and obligations hereunder unless with the prior written approval of Philips The terms and conditions of this Attachment will inure to and be binding upon Customer s affiliates parent subsidiaries officers directors employees agents or other representatives and its permitted assigns and successors 3 REV 5 17 2012 PHILIPS Support and Assist Coverage Exhibit Customer Employee Non Disclosure Agreement Attachment 2 2 Name of Employee Customer Name Residence Address City State Zip In consideration of the training Customer service documentation or Customer service software received or to be received by me from Philips and in further consideration of Philips disclosure to me of its proprietary information agree to the following 1 Philips Proprietary Information means information disclosed to me known by me or acquired by me as a result of my training by Philips or its agents or in my subsequent use of such information in the installation service maintenance or repair of Covered System including any oral written or electronically recorded information regarding the installation service maintenance repair construction design theory of design theory of operation diagnostic tools teaching materials hardware schematics electrical schematics software of any nature in any form and on any media repair
32. ation for the software updates or upgrades 4 9 Data reconstruction The Customer shall follow the recommended back up processes as outlined in the System Installation or Reference Guides The Customer is also responsible for the reconstruction restoration retrieval or recovery of any lost or altered patient records files programs or data Philips is not responsible for the reconstruction restoration retrieval or recovery of any lost or altered files data or programs For an additional charge based upon published labor and material rates Philips will offer services on a commercially reasonable efforts basis to reconstruct data 4 10Intermediate Resolutions Customer shall implement any intermediate System resolutions or workarounds that Philips requests while seeking a long term System resolution 5 SERVICE LIMITIONS 5 1 Software Restoration If the Software fails and the supported application Software requires restoration then Philips will reinstall the application Software database Software and operating system to the revision level that existed prior to the malfunction or failure and Philips will attempt to reinstall the customer created data backup If the customer created data backup cannot be used to re install any data to the System the customer will hold sole responsibility for the loss of data Custom or third party Software custom database configurations or reports and Customer written product interfaces are not included If
33. ations The bracketed citations to the HIPAA Regulations in several paragraphs of this Addendum are for reference only and shall not be relevant in interpreting any provision of this Addendum except as set forth in Section 5 3 below 5 2 No Third Party Beneficiaries Nothing in this Addendum shall confer upon any person other than the Parties and their respective successors or assigns any rights remedies obligations or liabilities whatsoever 5 3 Compliance Date For the purposes of this Addendum the Compliance Date for a section of this Addendum is defined as the date on which the HIPAA Regulations require compliance by the Customer with the referenced provision of the HIPAA Regulations if multiple regulations are referenced the one requiring earliest compliance shall apply If a section does not reference a provision of the HIPAA Regulations for each Underlying Contract such section shall be effective on the later of April 14 2003 or the effective date of such Underlying Contract 5 4 Amendment To the extent that any relevant provision of the HIPAA Regulations is materially amended in a manner that changes the obligations of Business Associates or Covered Entities the Parties agree to negotiate in good faith appropriate amendment s to this Addendum to give effect to these revised obligations IN WITNESS WHEREOF each of the undersigned has caused this Addendum to be duly executed in its name and on its behalf PHILIPS HEALTHCARE
34. ayment Adjustment Schedule for Uptime System 99 Uptime Guarantee 98 Uptime Guarantee 96 Uptime Guarantee Uptime Discount Uptime Discount Uptime Discount Percentage Percentage Percentage 99 100 None 98 100 None 96 100 None 96 98 9 5 95 97 9 5 91 95 9 5 93 95 9 10 92 94 9 10 lt 90 9 10 lt 92 9 15 lt 91 9 15 Maximum adjustment available 1 REV 5 17 2012 PHILIPS 4 UPTIME PERCENTAGE DETERMINATION The Uptime Percentage is determined according to the following formula Uptime Percentage Uptime Hours Base Hours x 100 Below are examples of how Uptime Percentage is determined a MEASUREMENT EXAMPLE 1 Base Hours 8 AM to 5 PM Monday through Friday over the 12 month Measurement Period 9 hours x 5 days x 52 weeks 2 340 Base Hours 2 340 Base Hours 60 Downtime hours 2 280 Uptime Hours 2280 2340 100 97 4 Uptime Percentage b MEASUREMENT EXAMPLE 2 Base Hours 8 AM to 9 PM Monday through Friday over the 12 month Measurement Period 13 hours x 5 days x 52 weeks 3 380 Base Hours 3 380 Base Hours 60 Downtime hours 3 320 Uptime Hours 3320 3380 100 98 2 Uptime Percentage 5 REPORTS Uptime Percentage performance reports will be provided at the Customer s request for any Measurement Period while this Uptime Guarantee remains in effect To receive any applicable discount Customer must notify Philips in writing that the Uptime Percentage was no
35. c results derived therefrom any oral written or electronically recorded information regarding the installation service maintenance repair construction design theory of design theory of operation diagnostic tools teaching materials hardware schematics electrical schematics software of any nature in any form and on any media repair analysis techniques or maintenance of any Covered System service notes safety bulletins installation manuals service manuals service diagnostic tools and techniques and any other corresponding information of Philips or any of its predecessors successors affiliates subsidiaries or assigns 2 Customer warrants that all Trainees attending any Philips training are Customer s employees For the purpose of this Attachment the term employee or other words contemplating the same relationship as employee will have the same meaning as when the term is used by the Internal Revenue Service as distinct from an independent contractor to determine whether there is an obligation to withhold income taxes withhold and pay Social Security and Medicare taxes and pay unemployment tax on wages paid 3 Prior to the disclosure or dissemination of any Philips Proprietary Information to Customer s Trainee s and prior to attending training Customer must deliver an original copy of the signed Customer Employee Non Disclosure Agreement Attachment C1 to Philips The execution by Customer s Trainee s of the Custom
36. ce capability to Customer in connection with the products provided under this Agreement a Strategic Account Manager Philips will provide a Strategic Account Manager to facilitate the interactions of Customer and Philips This individual will be responsible for working with Customer in the planning and execution of the implementation plan for this Agreement b Customer Service Support Philips will provide customer service support personnel that will be assigned to Customer to facilitate the daily transactions related to the purchase of replacement parts c E Commerce During the first six 6 months of this Agreement Philips will work with Customer in the development and implementation of a Customer specific web portal The web portal will provide Customer with electronic access to Philips order entry capability order tracking and data on purchases by facility technician restocks warranty credits and exchange core status d Response time to call Philips commits to responding within 30 minutes from the time the call is received from Customer s representatives with a quote for the requested product e Technical Support During the term of this Agreement Philips shall provide the following technical support to Customer in connection with the Products purchased a Technical Support Hotline Philips shall provide Customer at no additional charge with access to Philips toll free Technical Support Hotline located Philips parts faci
37. count information required for access to the Software and for all acts other than those of Philips or its employees and agents that occur in connection with Customer s account iv immediately notify Philips of any unauthorized use of Customer s account breach of security or loss or theft of user names or passwords v limit use of the Software to its employees and contractors of Customer for which applicable fees have been paid and shall not and shall not allow its employees or subcontractors to resell or sublicense such Software vi abide by all applicable local state national and international law and regulations and not to use the Software for any purpose that is unlawful not contemplated or prohibited by this Agreement and vii comply with all applicable export laws and regulations Although the security of Customer s account will be maintained through the use of passwords it is possible for Customer s account to be accessed by unauthorized third parties via communication between Customer and Philips using the Internet other network communications facilities telephone or any other electronic means 8 INTELLECTUAL PROPERTY RIGHTS OF PHILIPS The Philips Software is composed of computer programming formatting code operating instructions graphics designs information and or other material whether in written graphical or other form the Software Content protected by copyright trademark trade secret patent or other
38. created or received on behalf of Customer as Customer s Business Associate 3 OBLIGATIONS OF THE PARTIES WITH RESPECT TO PHI 3 1 Obligations of Philips With regard to its use and or disclosure of PHI Philips will a Not use or disclose PHI other than as permitted or required by this Addendum or as required by law 164 504 e 2 ii A b Use appropriate safeguards to prevent use or disclosure of PHI other than as provided for by this Addendum 164 504 e 2 ii B c Report to Customer any use or disclosure of PHI not provided for by this Addendum of which Philips becomes aware 164 504 e 2 ii C d Ensure that any agents and subcontractors to whom it provides PHI received from or created or received by Philips on behalf of Customer agree to the same restrictions and conditions set forth in the business associate provisions of the HIPAA Regulations that apply through this Addendum to Philips with respect to such information 164 504 e 2 ii D e Within twenty 20 days of receiving a written request from Customer make available to the Customer PHI necessary for Customer to respond to individuals requests for access to PHI about them if the PHI in Philips possession constitutes a Designated Record Set 164 504 e 2 ii E f Within forty 40 days of receiving a written request from Customer make available to the Customer PHI for amendment and incorporate any amendments to the PHI in accordance with
39. dates automatically stable version efforts are made to test and support the most recent version There are no configuration recommendations for Chrome Google Chrome Frame plug in Supported plug in for Internet Explorer 6 only for Internet Explorer 6 Google Chrome Frame applies updates automatically only the most recent version is supported Mozilla Firefox most recent Firefox is recommended for best performance stable version efforts are made to test and support the most recent version Windows Internet Explorer Internet Explorer version 9 is strongly versions 6 7 8 and 9 recommended over versions 6 7 or 8 User must apply all Microsoft hotfixes Apple Safari version 5 1x Supported on Windows XP and Mac OS X version 10 4 and later Trademarks and copyrights of Google Mozilla Firefox Microsoft Windows and Apple remain property of owner Philips will not be held liable for any inability to access the Software Philips may change the technical requirements for future versions of the Software 7 RESPONSIBILITY FOR USE UNAUTHORIZED ACCESS Customer shall with respect to the Software i obtain access to the world wide web in order to access and use the Software at the Customer s sole expense ii complete the implementation and set up process as required by Philips to access the Software iii be entirely responsible for PHILIPS maintaining the confidentiality of any passwords and ac
40. de repair and planned maintenance records for the Covered System CUSTOMER RESPONSIBILITIES During the term of this Agreement Customer will 6 1 Attend a start up meeting at Customer s facility prior to the Effective Date of this Agreement so Philips can explain the Services to the Customer s management and selected staff 6 2 Provide a secure dedicated space within Customer s main facility and at each additional facility or location as necessary for the resident Philips staff 6 3 Provide Philips with broadband internet or Wi Fi access for business purposes 6 4 Provide Philips with the System service manuals for any non Philips System 6 5 Maintain all software licenses applicable to the Covered System 6 6 For Philips use in remote servicing of the System provide Philips a secure location for hardware to connect System to Philips Remote Service PRS 6 6 1 The PRS hardware remain Philips property and is only provided during the term of this Agreement 6 6 2 Provide Philips and its vendors full and free access to the PRS hardware to enable Philips to remotely access the System or non Philips System and 6 6 3 Provide Philips at each System Site at all times during the term of this Agreement a dedicated broadband Internet access node including public and private interface access suitable to establish a successful connection to the System through the PRS and Customer network 6 6 4 If the System cannot be connected to the PRS
41. e This Additional Customer Loyalty Discount will only be eligible to be earned starting in the first month following the end of the second contract year based on the preceding year s total purchases less the baseline Target purchase volume is reset based on Customer s total purchases in year two CONFIDENTIAL RightFit Business Agreement Hospital Name Page 1 of 12 Rev 6 14 2012 PHILIPS which becomes the Customer s new target purchase volume Additional Customer Loyalty Discount can only be earned when there are at least two 2 years remaining on this Agreement including the then current contract year This additional Customer Loyalty Discount will be for Stock Product purchases and applied to the customer s invoices in the same manner as defined above in section 3 c Discounts not applied to the Initial or Additional Customer Loyalty Discounts are not reimbursable if unused due to contract cancellation d Philips reserves the right to suspend utilization of the Initial or Additional Customer Loyalty Discount if Customer does not maintain purchase levels on track to reach their Annual Volume Product Purchase Target as measured on a three 3 month rolling period 4 Training Credits During the first year of this Agreement and annually thereafter for as long as this agreement is in effect Customer shall be eligible to earn __ training credits offered by Philips Nashville Tennessee training center Each training credi
42. e any defect or failure to perform that is the direct or indirect result in whole or in part of accident abuse misuse operation of the Covered System in which the part is installed outside of its environmental electrical or performance specifications power fluctuations or failures fires floods or other similar or dissimilar natural causes or improper installation or calibration If a Part does not comply with this warranty then Customer shall promptly return part to Philips and Philips shall repair or replace such part THE WARRANITES STATED ABOVE ARE EXPRESSLY IN LIEU OF ANY OTHER WARRANTIES EXPRESSED OR IMPLIED INCLUDING WITHOUT LIMITATION WARRANTY OF MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT WITH RESPECT TO ANYTHING PROVIDED BY PHILIPS OR ITS SUBCONTRACTOR UNDER THIS EXHIBIT OR THE AGREEMENT CUSTOMER S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THIS WARRANTY IS THE REPAIR OR REPLACEMENT OF A NON CONFORMING PART AND THE REPAIR OF COVERED SYSTEM FOR ANY NON CONFORMING SERVICE 2 REV 5 17 2012 PHILIPS Support and Assist Coverage Exhibit Customer Non Disclosure Terms and Conditions Attachment 2 1 1 Philips holds and owns certain proprietary and trade secret information Philips Proprietary Information relating to the installation service maintenance and repair of the products whether or not manufactured or sold by Philips including the Software and Documentation and any work product or diagnosti
43. e any representations or take any actions which may give rise to the existence of any employment agency partnership joint venture or other like relationship as between Customer and Philips but Philips sole relationship as respects Customer is and shall remain that of an independent contractor and supplier of the Products and any additional products to Customer 2 Assignment Neither party may assign this Agreement without the prior written consent of the other party No assignment shall operate to release the obligations of the assigning party without the prior written consent of the non assigning party Notwithstanding any provision of this Agreement to the contrary either party shall have the right to assign or otherwise transfer its interest under this Agreement to any parent or subsidiary Any assignment to a parent or subsidiary shall not require the consent or approval of the other party in order to be effective CONFIDENTIAL RightFit Business Agreement Hospital Name Page 7 of 12 Rev 6 14 2012 PHILIPS 3 Governing Law Venue This Agreement is entered into in the State of Tennessee and shall be governed by the laws thereof Any action relating to this Agreement shall be filed in the trial courts in Nashville Davidson County Tennessee without reference to rules relating to conflict of laws 4 Binding Effect This Agreement shall inure to the benefit of and be binding upon the parties and their successors and permitted assi
44. e face of the Agreement will be reduced at Philips then current standard rates for on site labor and Philips then current published list price for parts If Combination Pool coverage is exhausted during any year of the term then Customer may request on site labor or parts at Philips list price less the discount specified in the quotation Combination Pool coverage expires on an annual basis and no credit for any unused portion is carried forward Customer may allocate the site balance to on site labor or parts purchased by Customer between the Covered Systems at the site Customer may not allocate the site balance to System not listed in the quotation 1 6 Additional Requested Services If Customer purchased assist without labor coverage then Philips will provide requested on site labor to Customer at Philips then current standard hourly rates 1 7 Tubes Flat Detectors and Image Intensifiers If tube flat detector or image intensifier coverage is included in the Agreement then Philips will provide and install these parts on the Covered System 2 CUSTOMER RESPONSIBILITIES 2 1 Customer shall assign the Trainee to perform the obligations of Customer described under the Agreement 2 2 Customer shall notify Philips if the Trainee s employment with Customer terminates or Customer assigns another trained employee to maintain or repair the Covered System Customer s selected employee shall attend training and customer shall pay list price for such t
45. e per attendee When the balance is depleted customer may add funds to their account If the account balance is negative then customer shall promptly pay Philips the balance due Account balances carry over from year to year during the agreement However any remaining account balance at the end of the agreement will not be refunded 6 2 Direct Course Purchase Customer may purchase individual courses at then current prices TRAVEL Philips travel expenses for all Training delivered at the Customer Site are included in the price described in the applicable Course Catalog s Unless otherwise indicated in the Course Catalog s all travel and living expenses incurred by the Trainee s are the Customer s responsibility WARRANTY DISCLAIMER PHILIPS MAKES NO WARRANTY THAT ANY TRAINEE WILL PASS ALL OR ANY PORTION OF THE TRAINING COURSES PROVIDED OR THAT THE TRAINING WILL RESULT IN ANY TRAINEE BEING QUALIFIED OR ABLE TO OPERATE THE SYSTEM REV 5 17 2012 PHILIPS Exhibit 6 MULTI VENDOR BIOMEDICAL EQUIPMENT SERVICE COVERAGE REPAIR LIMITATION Philips responsibility for repair per event is limited to 50 of any unit of Equipment s current fair market value Customer will be responsible for any repair cost in excess of 50 of the fair market value of any unit of Equipment SOFTWARE LICENSE 2 1 Within 90 days after the Effective Date Philips will install Philips maintenance management software Software for use at the Equipment S
46. e s only to the extent service training for the System is included in Philips training course offerings then in effect and is included on the face of the Agreement Training will be conducted at Philips service training facilities or through remote training options as defined by Philips for the applicable course All travel and living expenses incurred by the Trainee s will be borne by Customer unless otherwise indicated on the face of the Agreement Philips may cancel or reschedule courses Philips obligation to provide training hereunder is expressly subject to the Customer Non Disclosure Terms and Conditions set forth in Attachment 2 1 to this Exhibit which are incorporated into this Exhibit and expressly contingent on each Trainee signing a Customer Employee Non Disclosure Agreement set forth as Attachment 2 2 to this Exhibit Trainee s must meet the minimum admission requirements set forth in the course syllabus and must satisfy all prerequisites prior to admission Philips makes no warranty that any Trainee will pass all or any portion of the training courses provided or that the training will result in any Trainee being qualified or able to troubleshoot and repair any or all possible malfunctions that may occur in the Covered System 1 2 Customer Service Documentation Customer Diagnostic Software License If software and documentation are included in the Agreement then Philips grants to Customer and Customer accepts from Philips a li
47. er Employee Non Disclosure Agreement and its delivery to Philips is a CONDITION PRECEDENT to Philips obligation to train or otherwise disclose or disseminate any Philips Proprietary Information to said Customer Trainee s 4 Customer will treat any Philips Proprietary Information that is received in strictest confidence and will refrain from disclosing or disseminating any of the Philips Proprietary Information without Philips prior express written consent except to those employees of the Customer who have executed a Customer Employee Non Disclosure Agreement Except as permitted under this Attachment Customer will not directly or indirectly disclose copy access run perform display disassemble decompile reverse engineer modify adapt translate create derivative works distribute sublicense sell assign or otherwise transfer all or any part of the Proprietary Information or cause or permit the Proprietary Information or any part thereof to be used by any persons other than the Trainees and only on the System and at the applicable System Site Except as permitted under this Attachment Customer will not directly or indirectly permit or authorize its employees to use the Philips Proprietary Information 5 All information disclosed to Customer s Trainee s in connection with said training and all related information regarding the Covered System that Customer may have access to is presumed to be Philips Proprietary Information
48. er shall from time to time purchase the Products from Philips pursuant to Customer s purchase orders Purchase Orders Purchase Orders may be verbal with written confirmation of receipt or in electronic or other written form and shall identify the Products ordered the delivery location the requested delivery date and the price of such Products Notwithstanding anything to the contrary in any Purchase Order including any standard or pre printed terms and conditions set forth thereon the complete and exclusive agreement between Customer and Philips with respect to Philips sale and delivery of Products to Customer shall consist of this Agreement including the Return Policy incorporated herein and the quantity delivery location and requested delivery date terms set forth in the Purchase Orders issued by Customer Any additional or contrary terms set forth in any Purchase Order are hereby rejected and shall not be binding upon Philips unless specifically approved in writing by an authorized officer of Philips 2 Primary Multi Vendor Product Supplier During the term of this Agreement except as otherwise provided herein Customer shall not directly or indirectly purchase or otherwise acquire Products or goods that are substantially similar to or have functionalities substantially similar to the Products from any source other than Philips In the event the Product must be ordered from an Original Equipment Manufacturer or alternate source othe
49. er the PTU Option In no case will Philips obligation under any System hardware provided under the Agreement exceed the greater of 5 000 or the amount expressly described on the Agreement under the PTU Option This paragraph 2 does not apply if the PTU Option is for software only Such Upgrades to the System software and hardware are available only for the System at the System Site Such Upgrades do not include functionality applications options or the like that were not purchased with the System including but not limited to virus protection software Customer may not resell transfer or assign the right to such Upgrades to any third party All Upgrades to the System software and hardware provided under the Agreement are subject to the terms and conditions of the Agreement and any licensing terms and conditions included in the purchase of the System from Philips The System must have the most recent software or hardware version prior to the then current software or hardware update to be eligible for an upgrade under the PTU Option If the Agreement is terminated due to the fault of Customer or Customer defaults under the Agreement after any Upgrades to the System software or hardware are provided by Philips then Customer will pay Philips the list price of the provided Upgrades within thirty days of such termination or default REV 5 17 2012 1 PHILIPS ADDITIONAL CLINICAL EDUCATION TRAINING TERMS amp CONDITIONS TRAINING COVERAGE Phil
50. etermine whether corrective maintenance for particular bench repairs instead of parts or System exchange Defective broken or otherwise replaced components will become Philips property Unless otherwise specified bench repairs will be return shipped via priority delivery Customer shall ship the System to Philips in accordance with Philips shipping instructions REV 5 17 2012 1 re PHILIPS ADDITIONAL PATIENT CARESERVICES TERMS amp CONDITIONS SERVICES PROVIDED Commencing on the Effective Date and subject to the limitations below Philips will provide services listed on the quotation s for Covered System Telephone On Site wg Agreement Type and Remote Response On Site Labor On Site Travel Parts ee Support Time y i 24x7x365 Comprehensive On Site Next Onsite Support ae Hour Business Dayt Included Included Includedtt Included esponse 24x7x365 poa pals Two Hour Not Applicable Not Applicable Not Applicable Includedtt Included greement R esponse Support Parts 24x7x365 vei Agreement with Two Hour On Site Next Included Included Includedtt Included Business Dayt Second Response Response Typical Bench Bench Repair eit Not Applicable cluded ue ie Includedtt Repair Time 3 Service pp Remote Only POM 6 business day Response Shipping Only returnt Typical Unit 24x7x365 i Exchange i eel Two Hour Not Applicable Not Applicable Not Applicable nut pegs Time Next Response y business day exchange
51. f Customer requests on site labor support from Philips connected with any of the Products purchased under this Agreement Philips will provide Customer with a __ discount on next day response labor from a qualified field technician at Philips standard time and materials rates Monday Friday 8 a m 5 p m in the customer s geography Optional labor agreements are available separately for purchase through Philips RightFit Service Agreements 7 Annual Review of Discount Pricing Structure Termination a Annual Review Philips and Customer will meet annually no later than 60 days prior to the annual anniversary date to review all spend data for that agreement year and make any potential price increases or adjustments to the current discount pricing structure based on actual realized volume Any changes must be mutually agreed upon prior to their taking effect b Termination Philips shall have the right to terminate this Agreement upon written notice to Customer no later than sixty 60 days after the annual anniversary date of this Agreement if the Customer has not reached the Annual Volume Product Purchase Target Unused Product and Training Credits are not reimbursable if unused due to Agreement cancellation CONFIDENTIAL RightFit Business Agreement Hospital Name Page 2 of 12 Rev 6 14 2012 PHILIPS 8 Support Resources During the term of this Agreement Philips shall provide the following support resources and e commer
52. g Support Parts Agreement program except Biomed Assist Services or a new Philips service agreement that includes a Support Parts Agreement 4 1 2 Designate and train a biomedical engineer and an alternate who will serve as Philips primary support contacts Such individuals must be familiar with all aspects of biomedical training provided by Philips In addition the biomedical engineer shall maintain the integrity of the Patient Care Equipment If the Customer does not have a trained biomedical engineer who meets Philips requirements then Customer shall purchase the optional Biomedical Engineer BMET Training course 4 1 3 If Customer cannot resolve the Patient Care Equipment problem and requires on site assistance of Philips then Philips will provide such on site service at Philips then current standard rates for demand service plus applicable travel charges per service visit unless Second Response coverage is included in the Service Agreement 4 2 Biomed Assist Services If Biomed Assist Services coverage is included in the Service Agreement then Customer will ensure that any Patient Care Equipment not covered by Biomed Assist Services is covered under a Support Parts Agreement a separate Philips service agreement or Philips standard warranty If such Support Parts Agreement service agreement or warranty expires during the term of the Agreement then all Patient Care Equipment covered under such expiring agreement or warranty must be added
53. gns 5 Entire Agreement Amendments This Agreement and its Exhibits constitute the entire agreement between the parties with respect to the subject matter covered hereby and supersede any and all prior negotiations representations agreements or understandings relating hereto This Agreement may be amended only by a writing signed by a duly authorized representative of each party 6 Waivers No waiver of any provision of this Agreement shall be deemed to have been given unless such waiver is in writing signed by the waiving party and specifically designating the breach waived nor shall any such waiver constitute a continuing waiver of similar or other breaches 7 Notices All notices requests and other communications required or permitted to be made under this Agreement shall be in writing and may be given by hand overnight courier service mailed by certified or registered mail or facsimile Any notices provided for herein shall be deemed to have been given at the time of receipt when delivered personally or sent by overnight courier or at the time of transmittal if sent by facsimile and a complete transmission report is received by the sender All notices shall be addressed to the party for which such notice demand or communication is intended at such party s address as set forth below If to Customer If to Philips AllParts Medical LLC 400 Brick Church Park Drive Nashville Tennessee 37207 Attn Steve Cannon Presidents o
54. greement then Subsections i and ii of that Section are made a part of this Agreement In such an event Philips shall retain REV 8 01 2012 17 18 19 20 21 22 23 24 25 3 PHILIPS and make available and insert the requisite clause in each applicable subcontract requiring Philips subcontractor to retain and make available the contract s book s document s and record s to the person s upon the request s for the period s of time required by these Subsections HIPAA PRIVACY Philips complies with all applicable provisions of the Health Insurance Portability and Accountability Act of 1996 HIPAA Upon Customer request Philips will provide a mutually agreeable Business Associates agreement In the course of providing the Services to Customer Philips may need to access view or download computer files from the System that might contain Personal Data Personal Data includes information relating to an individual from which that individual can be directly or indirectly identified Personal Data can include both personal health information e g images heart monitor data and medical record number and non health information e g date of birth and gender Philips will process Personal Data only to the extent necessary to fulfill its Service obligations under this Agreement CONFIDENTIALITY Each party will maintain as confidential any information furnished or disclosed to one party by the othe
55. h TEE probes TV camera pick up tubes photo multiplier tubes accelerator center beam lines piped medical gases up to the wall outlets copier drums electron guns fiber optic bundles foot hand controls switches accessory or attachment klystrons and thyratrons magnetrons plumbicons waveguides and attachments 3 8 If this agreement includes coverage for biomedical services arthroscopy instruments blood pressure cuffs accessory or attachment centrifuge motor brushes electronic thermometer probes electrosurgical instruments pencils amp pads general or surgical instruments laboratory glass laser tubes phaco hand pieces cataract extraction units accessory or attachment non electrical surgical equipment rigid amp semi rigid scopes COVERAGE Philips will provide services on site during the hours listed in Customer s service agreement excluding Philips observed holidays unless otherwise set forth in attachments or exhibits Service Coverage Customer may request service outside of the Service Coverage or service that is not otherwise included in this Agreement and subject to the availability of personnel and repair parts Philips will provide such service at Philips s then current preferred rates and for material and labor Customer will be charged a minimum of three hours on site time plus applicable travel charges and expenses per service visit DOCUMENTATION Upon Customer s written request Philips will provi
56. h Customer No rights or implied licenses in such Customer Data are granted to Philips by this Agreement This Agreement does not provide Customer with title or ownership of the Software but only a right of limited use Extracts of Customer data will be provided in a CSV format and will include the following Account Attachment Building Cases Checklist Items Contact Cost Center Department Device Model Device Type Labor MVS Assets Parts and Expense PM Plan Checklist Items PM Plans PM WO Checklist Service Request and Vendors tables Any file attached will be returned to Customer in the original file format Philips may refuse assistance or charge additional fees for data extracts in any other format for any data migration for providing file attachments in any format other than the format used when originally attached and for any other additional requests of data 10 WARRANTY DISCLAIMER AVAILABILITY OF ACCESS TO SYSTEM SYSTEM REQUIREMENTS The Software is provided as is Philips provides no warranties express or implied including warranties of merchantability and fitness for a particular purpose Philips shall not be liable for delays that are ordinary in the course of Internet use or arise as a result of Customer s Internet connection network configuration or equipment Customer recognizes that the Software may not be available due to temporary delays caused by upgrading modification or standard maintenance of the Software w
57. hich activities Philips shall undertake to the extent possible during times calculated to be minimally disruptive to Customer and the Software In this regard Philips will use reasonable efforts to schedule upgrading modification or standard maintenance of the Software at times outside of Monday through Friday 7 a m through 7 p m Central Time Philip s will use commercially reasonable efforts to inform Customer of any known or foreseeable disruptions to the availability of the Software From time to time Philips will release and make available to Customer upgrades to its Software and Customer will not have the option to access prior versions of the Software Philips may support and maintain only the most current version of the Software Philips may refuse assistance or charge additional fees if Customer seeks assistance concerning the operating system or any other matters not directly related to the access and use of the Software PHILIPS Attachment 6 1 Subcontracting Confirmation for Philips Healthcare Multi Vendor Agreements CustomerName Customer has selected Philips Healthcare a division of Philips Electronics North America Corporation Philips as its principal provider of service of clinical Systems for all of Customer s facilities under a Service Agreement between Philips and Customer dated CurrentDate the Agreement and in connection with this Agreement has permitted Philips to subcontract the follow
58. icenses included at no additional charge are listed below User Licenses obtained for Philips employees or solely for Philips use are included in this Agreement and do not apply to limits listed below Any material modifications require the parties to execute a written change order signed by both parties Account Size Customer Portal User Licenses count of Biomedical assets serviced Included 1 399 2 400 1499 5 1500 2999 10 3000 4999 15 5000 and up 20 Biomedical assets are defined as any asset that is normally serviced by the Clinical Engineering department and not considered diagnostic imaging equipment Assets are considered serviced when covered under this Agreement at a service level greater than tracking only 5 3 User Licenses for Purchase User Licenses may be purchased in accordance with the schedule below Any material modifications require the parties to execute a written change order signed by both parties User License Type Annual Fee each User Enterprise Solution 4 000 00 Additional Customer Portal 200 00 Note for in house Clinical Engineering departments Ability to open and close work orders requires Enterprise Solution 6 SYSTEM REQUIREMENTS The Software is an online application that can run on any computer with an Internet connection and supports the following browsers Browser Comments Google Chrome most recent Google Chrome applies up
59. ide on site Software support services to resolve software issues that cannot be resolved through Philips primary resolution method On site services is next business day Monday through Friday excluding Philips recognized holidays 8 00 AM to 5 00 PM local time and provides for labor and travel necessary for the delivery of corrective Services Philips Internet based Customer Support Tools Philips will provide one 1 seat license to Philips web based support tool for the System s covered under the Service Agreement INTERFACE SUPPORT Philips supports the DICOM and HL7 communication to and from the System as they exist at the System Site at the time of installation In the case of upgrades Philips shall provide the following Software maintenance Services 3 1 3 2 If the Philips System interoperability mapping engine or biomedical device is upgraded to the latest version Philips will restore the inbound outbound communication to the pre upgrade condition with like for like parameters If incremental parameters or functionality are available as a result of the upgrade and Customer purchases or chooses to use these parameters or functionality then Customer shall pay the cost of any additional work required to implement and support the new communication capabilities at Philips then current standard labor and material rates for such Service Philips interface support does not include the modification of any interface due to interface
60. ilips Unless priority parts delivery is included in the Agreement all replacement parts ordered under this Exhibit will be shipped using Philips standard shipping priority prepaid subject to availability Other freight arrangements will be at Customer s request and expense 1 4 On Site Coverage If on site coverage is included in the quotation than prior to receiving such coverage Customer shall follow this process Customer s trained engineer shall attempt to resolve issue If Customer s trained engineer is unable to resolve issue then Customer shall contact Philips Customer Solutions Center If Philips Customer Solutions Center is unable to remotely resolve the issue than Philips shall dispatch an engineer to the customer site The Customer s engineer will be present during all such visits If the Covered System requires any major component replacements for example tubes flat panel detectors and coldheads then Philips must be present for such replacements Second Response coverage does not include planned maintenance unless otherwise stated on the face of the Agreement 1 REV 5 17 2012 PHILIPS 1 5 Combination Pool Parts and Labor If Customer purchased Combination Pool option the initial account balance and the site to which that balance applies site balance is specified in the quotation As Customer requests or uses either on site labor or parts under Combination Pool coverage the Combination Pool monetary level stated on th
61. ilips may provide non Philips Software assistance on a time and materials basis at Philips then current time and materials rates as available 9 EXCLUSIONS In addition to the Service Exclusions set forth in the Agreement the following Service Exclusions apply to Services 9 1 Any combining of the System with a non qualified device A non qualified device is 9 1 1 Any product hardware firmware software or cabling not supplied by Philips whether used internal or external to System without Philips approval Examples include software patches security fixes and service packs from the operating system web browser or database software manufacturer s 1 2 Any product supplied by Philips that has been modified by the Customer or any third party and 1 3 Any product maintained under this Agreement in which the Customer does not allow Philips to incorporate engineering improvements 9 1 4 Any product that has reached its End of Life End of Life means software and or hardware equipment that has surpassed the published end of support life date by the original equipment manufacturer 9 2 Operating system software issues that manifest themselves in non performance of another installed application and affect use or performance of the System 9 3 If the System covered by this Exhibit is software only then notwithstanding anything to the contrary in the Agreement or this Exhibit hardware and parts are not included in the Services
62. ilips shall at all times comply with all laws rules regulations and ordinances applicable to this Agreement including but not limited to all fair labor equal opportunity and environmental compliance laws rules regulations and ordinances The Equal Employment Opportunity Clauses set forth in 41 Code of Federal Regulations Chapters 60 1 4 60 250 5 and 60 741 5 are hereby incorporated by reference 13 Compliance with HIPAA If Philips services hereunder require disclosure to Philips of Protected Health Information and Customer is a Covered Entity as those terms are defined in privacy regulations promulgated under the Health Insurance Portability and Accountability Act of 1996 HIPAA Philips shall take reasonable steps to ensure that its handling of such information does not result in violation of those regulations Further if required Philips shall enter into a mutually agreed upon Business Associate Agreement based on the standard terms developed by the National Electrical Manufacturers Association NEMA Diagnostic Imaging and Therapy Systems Division in conjunction with the American Hospital Association 14 No Federal Exclusion Philips hereby represents and warrants that Philips and to the best of Philips knowledge its employees providing services under this Agreement are not and at no time have been excluded from participation in any federally funded health care program including Medicare and Medicaid Excl
63. ing matters 1 Service agreements for Customer s System that is subject to the Agreement System 2 Service support parts technical information End of Life EOL and or End of Service EOS notifications and information service histories and time and material service for the System and 3 Training for the System In connection with any such subcontract Philips will distribute to each vendor providing services under the Agreement the protocols by which service will be performed and documented by vendor s staff Agency Authorization for Philips Healthcare Multi Vendor Agreements In connection with the Agreement Customer has designated Philips as its duly authorized agent to act on Customer s behalf to negotiate execute amend and terminate agreements related to the System for the following Although Philips will be acting as Customer s agent Philips will pay such vendors directly on behalf of Customer for all amounts that arise from these contracts related to the System However if the agreement between Customer and Philips terminates then Customer will be responsible to perform any obligations defined in the contract or purchase order or if Philips fails to make any payments due then vendor may request Customer to make such payment directly to vendor and Customer will make such payment In all such instances Philips will distribute to each vendor providing services under the Agreement i the protocols by which se
64. intellectual property rights laws The Software and Software Content is and shall remain the property of Philips and its licensors Customer shall comply with all such laws and shall not assert any rights in the Software and Software Content other than its right to access and otherwise use the Software as provided for in this Agreement Customer may not modify copy provide to any third party sell transfer or create derivative works of the Software or any Software Content in whole or in part Customer shall not decompile disassemble reverse engineer or in any way derive source code from the Software All right title and interest in and to the Software and all related software programs computer source code technology information documents files and other materials including all intellectual property and proprietary rights developed in connection with the Software including but not limited to know how feedback methodologies and processes are and will remain with Philips Except as otherwise specifically set forth in this Agreement no rights or implied licenses in such intellectual property are granted to Customer by this Agreement or Customer s use of the Software 9 INTELLECTUAL PROPERTY RIGHTS OF CUSTOMER All rights title and interest in and to Customer data input into the Software including Customer s logos trademarks trade name service marks or any other graphics designs or pictures Customer Data are and will remain wit
65. ips will provide the clinical education and product applications training Training that customer has selected from the Philips course catalog s Course Catalog s EXCLUSIONS Training does not include a maintenance or diagnostic related technical training or b clinical applications training on hardware or software not installed or provided by Philips SCHEDULING Training must be scheduled at least eight 8 weeks in advance except for on line training Changes to scheduled Training must be received in writing by Philips at least two 2 weeks prior to scheduled delivery ATTENDANCE Philips will train the number of Customer employees Trainee s for the course specified in the quotation when space is available Trainee s must meet the minimum admission requirements set forth in the course syllabus must satisfy all prerequisites prior to admission and may be required to sign or acknowledge Philips safety checklist prior to receiving Training COURSE LOCATION Training may be conducted at Philips training facilities the Customer location s described in this Agreement Customer Site s through on line or remote training or at a third party location determined by Philips PAYMENT OPTIONS 6 1 Flexible Spending Agreements If Customer purchased Flexible Spending Agreement option the initial account balance is specified in the quotation The account balance is reduced by the list price for the specified cours
66. irst above written Philips Healthcare Accepted by Customer Home Office Use Only By By Printed Name Printed Name Title Title Date Date IMPORTANT NOTICE Health care providers are reminded that if the transactions herein include or involve a loan or discount including a rebate or other price reduction they must fully and accurately report such loan or discount on cost reports or other applicable reports or claims for payment submitted under any federal or state health care program including but not limited to Medicare and Medicaid such as may be required by state or federal law including but not limited to 42 CFR 1001 952 h CONFIDENTIAL RightFit Business Agreement Hospital Name Page 9 of 12 Rev 6 14 2012 PHILIPS EXCHANGE POLICY ATTACHMENT A 1 All Exchanges require a valid RMA Return Material Authorization number RMA numbers valid_for exchange parts only will be issued at the time of sale 2 Exchange parts are identified at the time of sale and noted on all invoices 3 A Like and Repairable part must be received at the Philips Nashville Tennessee facility within 15 calendar days of the original date of shipment If an exchange part is not received at the Philips facility within 15 calendar days of the date of shipment the customer will be Additional Billed 4 Ifthe exchange received is not a Like and Repairable part written notification will be sent to the customer requesting them t
67. ite by Philips and Customer s designated employees subject to the license terms and conditions set forth in this Attachment Philips will train Customer s designated employees who will use the Software as mutually agreed between Philips and Customer in the proper use of the Software In accordance with this Attachment Philips will use the Software to prepare and maintain Equipment maintenance documentation at the Equipment Site and will assist Customer in preparing such documentation for The Joint Commission and other applicable licensing or regulatory compliance entities 2 2 For the term of this Agreement Philips hereby grants to Customer and Customer accepts from Philips a limited non exclusive and non transferable license the License to use the Software and any documentation associated with the Software Documentation solely in conjunction with documenting the maintenance service and repair of the Equipment at the Equipment Site The License terminates if the Agreement terminates or expires for any reason Customer acknowledges that the Software and Documentation and all trademarks copyrights patents trade secrets proprietary rights or other property rights of Philips associated therewith are and will remain the exclusive property of Philips The License expressly excludes any right to reproduce duplicate or copy the Software or Documentation or any part thereof without the prior written consent of an authorized officer of
68. lity in Nashville Tennessee Phone support provides direct access on a 24 hour per day 7 day per week basis to Philips technical staff for assistance with technical guidance on equipment functionality problems and Product selection questions Full system diagnostics repair and remote services for corrective or maintenance services are only available through a Philips RightFit Service Agreement 9 Performance Standards Philips shall use its commercially reasonable efforts to satisfy the following performance standards e Rate of Warranty Non Conformity on Arrival DOA 3 or less o DOA Dead on Arrival is defined as the part delivered failing to perform within 24 hours of delivery e Total Valid Warranty Claims 5 or less e On Time Delivery and accuracy against Purchase Order 95 or greater Philips and Customer will meet within 30 days following the end of each calendar quarter to discuss Philips performance relative to the above standards Starting twelve 12 months after the date of this Agreement in the event that Philips and Customer mutually acting in good faith determine that Philips has failed to satisfy any two of the above standards for two consecutive quarterly measurement periods Customer shall be entitled to terminate this RightFit Business Agreement CONFIDENTIAL RightFit Business Agreement Hospital Name Page 3 of 12 Rev 6 14 2012 PHILIPS B PURCHASE AND SALE OF PRODUCTS 1 Purchase Orders Custom
69. minate this Agreement with respect to such System upon no less than thirty 30 days prior written notice to Philips in which case the Customer shall pay to Philips i all amounts due under this Agreement through the effective date of termination based on the notice requirement and ii as liquidated damages and not as a penalty an amount equal to 30 of the remaining payments due under this Agreement for such System from the date of termination through the scheduled expiration of the term of this Agreement 8 DEFAULT Customer s failure to pay any amount due under this Agreement within 30 days of when payment is due constitutes a default of this Agreement and all other agreements between Customer and Philips In such an event 1 REV 8 01 2012 10 11 12 13 14 15 16 2 PHILIPS Philips may at its option i withhold performance under this Agreement and any or all of the other agreements until a reasonable time after all defaults have been cured ii declare all sums due and to 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 attorney s fees iv terminate this Agreement with 10 days notice to Customer and v pursue any other remedies permitted by law END OF LIFE If Philips determines that its ability to provide the Service Coverage is hindered due to the unavailability of parts or trained pers
70. mited non exclusive and non transferable license the License to load and run the customer diagnostic software issued for the Philips manufactured Covered System Diagnostic Software and use customer service documentation issued for the Philips manufactured Covered System Service Documentation in conjunction with the maintenance service and repair of the Covered System and at the Covered System Site and subject to Customer Non Disclosure Terms and Conditions and Customer Employee Non Disclosure Agreement Customer acknowledges that the Diagnostic Software and Service Documentation and all trademarks copyrights patents trade secrets proprietary rights or other property rights of Philips associated therewith are and will remain the exclusive property of Philips Customer acknowledges that the Diagnostic Software and the Service Documentation included in this Agreement are only for the Philips manufactured Covered System not for any Covered System manufactured by third parties The Diagnostic Software and Service Documentation are licensed by Philips for ultimate end use by government agencies only under the following conditions a software and technical data rights in the Software and Documentation include only those rights customarily provided to end user customers as defined in the Agreement b this customary commercial License in the Software and Documentation is provided in accordance with FAR 12 211 Technical Data and F
71. nd the commercially reasonable control of a party provided that the foregoing may not be raised as defense for failure to pay any amounts due and owing under fulfilled Purchase Orders Each party shall use due diligence and all reasonable efforts to cure any such cause preventing its performance so as to resume performance as soon as reasonably practicable F CONFIDENTIALITY 1 Confidentiality Philips and Customer shall maintain all proprietary information materials or documents relating to the Products the business and operations of the other or otherwise provided or disclosed to the other or to which the other gains access pursuant to this Agreement the Confidential Information in strict confidence and use all due care in connection therewith that is necessary or CONFIDENTIAL RightFit Business Agreement Hospital Name Page 6 of 12 Rev 6 14 2012 PHILIPS appropriate to ensure compliance with the terms hereof Each party acknowledges that all Confidential Information regarding the other shall remain the exclusive property of such other party or its subsidiaries or affiliates as the case may be notwithstanding any disclosure thereof and shall restrict disclosure of the other party s Confidential Information to only its employees that require such Confidential Information to perform their responsibilities in connection with this Agreement Customer shall not disclose any of Philips Confidential Information to any third
72. o provide a Like and Repairable part within 5 calendar days If one is not received within 5 calendar days the customer will be Additional Billed The original part received may be returned at the customer s request and expense or it will become the property of Philips after 20 calendar days 5 Additional Billing Failure to return an exchange part within 15 calendar days from the original date of shipment will result in an Additional Billing The Additional Billing will be calculated as the difference between the OEM Outright price and the Purchase Price or at Philips s discretion 6 Additional Billing Credit If the exchange part is returned within 45 calendar days from the original date of shipment a credit equal to 50 of the Additional Bill will be issued No credit to the Additional Bill will be issued for parts received after 45 calendar days of the original date of shipment CONFIDENTIAL RightFit Business Agreement Hospital Name Page 10 of 12 Rev 6 14 2012 PHILIPS RETURN POLICY ATTACHMENT B 1 Philips allows the restocking of parts up to 15 calendar days from original date of shipment 2 All Restocks require a valid RMA Return Material Authorization number to be requested within 15 calendar days of the original shipment date Please contact the Philips Customer Service Staff at 866 507 4793 to obtain an RMA number valid for restocks only prior to returning product 3 All Restock parts returned must have
73. on does not include information in the public domain at the time of disclosure or to information that is required to be disclosed by law or by court order The obligation to maintain the confidentiality of any Confidential Information will expire five years after the termination or expiration of this Agreement 2 Remedies The parties recognize and agree that the unauthorized use or disclosure of any Confidential Information by one party could cause irreparable injury for which the other party would have no adequate remedy at law and that an actual or contemplated breach of this Section F shall entitle such other party to seek immediate injunctive relief prohibiting such breach 3 Agreement The parties agree that the contents of this Agreement including all Purchase Orders shall constitute Confidential Information and as such will not be disclosed by either party without the written consent of the other except as otherwise permitted by the terms of the Agreement G MISCELLANEOUS 1 Independent Contractor No Joint Venture This Agreement shall not be construed to create a partnership joint venture association or other entity or business organization or to create a principal agent or other fiduciary relationship between Customer and Philips Neither Customer nor Philips nor any officer employee representative or agent of Customer or Philips shall in any manner directly or indirectly expressly or by implication be deemed to be or mak
74. onal BioMedical Equipment Service Coverage Exhibit 7 Additional RightFit Business Purchasing Agreement Exhibit 8 Additional Software Maintenance Agreement Terms and Conditions Exhibit 9 Software Maintenance Agreement Hardware Support Exhibit 10 Additional Patient Care Services Terms and Conditions AUTHORITY TO EXECUTE The parties acknowledge that they have read the terms and conditions of this Agreement that they know and understand the same and that they have the express authority to execute this Agreement REV 8 01 2012 PHILIPS Exhibit 1 ADDITIONAL IMAGING SYSTEM SERVICE TERMS AND CONDITIONS 1 SERVICES PROVIDED 1 1 1 2 1 3 1 4 Initial Covered System Inspection Within 90 days after the Effective Date Philips will inspect the Covered System not previously serviced by Philips and notify Customer of any Covered System that does not meet manufacturers specifications Philips will provide Customer a written estimate for repairs necessary to bring any of the Covered System within proper manufacturers specifications Upon Customer s request Philips will provide necessary repairs at Philips then contract labor rate If customer elects not to have System repaired then Philips may remove such System from coverage in this agreement Repair Service Commencing on the Effective Date and subject to the repair limitation below Philips or Philips subcontractors will provide repair services for Covered System Phili
75. onnel or that the system can no longer be maintained in a safe or effective manner as determined by Philips then Philips may terminate this Agreement upon notice to the Customer and provide Customer with a refund of any Customer pre payments for periods of Service Coverage not already completed WARRANTY DISCLAIMER Philips full contractual service obligations to Customer are described in this Agreement Philips provides no warranties under this Agreement All service and parts to support service under this Agreement are provided AS IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE APPLIES TO ANYTHING PROVIDED BY PHILIPS SUBCONTRACTOR OR PHILIPS LIMITATIONS OF LIABILITY AND DISCLAIMER 11 1 Philips total liability if any and Customer s exclusive remedy with respect to the Services or Philips performance of the Services is limited to an amount not to exceed the price stated in this Agreement for the Service that is the basis for the claim THIS LIMITATION SHALL NOT APPLY TO THIRD PARTY CLAIMS FOR BODILY INJURY OR DEATH CAUSED BY PHILIPS NEGLIGENCE PHILIPS WILL HAVE NO LIABILITY FOR ANY ASSISTANCE PHILIPS PROVIDES THAT IS NOT REQUIRED UNDER THIS AGREEMENT 11 2 IN NO EVENT SHALL PHILIPS OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT PUNITIVE INCIDENTAL CONSEQUENTIAL OR SPECIAL DAMAGES INCLUDING WITHOUT LIMITATION LOST REVENUES OR PROFITS BUSINESS INTERRUPTION LOSS OF DATA OR THE COST OF SUBSTITUTE PRODUC
76. or clinical education during the installation that Customer is entitled to receive under the purchased coverage type If Customer requires additional clinical services then Philips will provide such services to Customer at Philips then current labor and material rates Clinical support at the installation will be provided in support of the new software revision installation and does not include end user clinical education Clinical support at the installation may be provided remotely at Philips sole discretion Update or upgrade installation and clinical support of the installation shall take place during standard coverage hours Monday through Friday between 8 00 AM and 5 00 PM local time excluding Philips observed holidays If Customer requires additional installation support or clinical services then Philips will provide such installation or services to Customer at Philips then current labor and material rates 6 CLINICAL EDUCATION Philips will perform the clinical support of the installation or clinical education for upgrades updates or fixes that Customer is entitled to receive under this Agreement at a time mutually agreed to by Philips and the Customer Scope duration and delivery methodology of the clinical support of the installation or clinical education will vary by upgrade update or fix and will be defined by Philips at Philips sole discretion 7 CUSTOMER RESPONSIBILITIES 7 1 System administrator The Customer shall designate
77. own in writing to Philips Philips and its subcontractors will comply with Customer s rules and regulations provided such rules and regulations do not conflict with established Philips policies EXCLUDED PROVIDER Philips represents and warrants that Philips its employees and subcontractors are neither debarred excluded suspended or otherwise ineligible to participate in a federal health care program nor have they been convicted of any health care related crime for the products and services provided under this Agreement an Excluded Provider Philips shall promptly notify Customer if it becomes aware that Philips or any of its employees or subcontractors providing the Services becomes an Excluded Provider whereupon Customer may terminate this order by express written notice for services not yet rendered SOLICITATION OF PHILIPS EMPLOYEES For the duration of this Agreement and for one year following the expiration or termination of this Agreement Customer and its affiliates will not directly or indirectly solicit any employee of Philips or its affiliates engaged in providing the services SURVIVAL WAIVER SEVERABILITY NOTICE CHOICE OF LAW Customer s obligation to pay any money due to Philips under this Agreement survives expiration or termination of this Agreement All of Philips rights privileges and remedies with respect to this Agreement will continue in full force and effect after the end of this Agreement A party s failure
78. party without the prior written consent of Philips and may use Philips Confidential Information only for purposes of performing Customer s obligations under this Agreement Philips shall not disclose any of Customer s Confidential Information to any third party without the prior written consent of Customer and may use Customer s Confidential Information only for purposes of performing Philips obligations under this Agreement Each party shall disclose the other party s Confidential Information only to its employees who need it to perform their duties and shall advise such employees who have access to any Confidential Information of the other party of the confidential and proprietary nature thereof and the obligations to keep such Confidential Information in strict confidence in accordance with this Agreement At the request of Philips Customer shall return all copies of Philips Confidential Information in its possession to Philips or at Philips option destroy the same At the request of Customer Philips shall return all copies of Customer s Confidential Information in its possession to Customer or at Customer s option destroy the same Each party shall provide the other with such evidence as such other party may reasonably request to confirm compliance with this Section F 1 Philips and Customer will promptly notify the other upon discovery of any unauthorized use or disclosure of any Confidential Information Confidential Informati
79. pon three 3 days written notice to Customer Upon expiration or termination of this Exhibit or the Agreement the License expires and Customer must immediately return the Philips Diagnostic Software and Service Documentation and all copies or reproductions thereof to Philips at Customer s expense Such termination or expiration will not relieve Customer of any of its obligations incurred prior to such termination or expiration and will not impair any of Philips rights that have accrued prior to such date The covenants of Customer contained herein will survive the expiration or termination of this Exhibit or the Agreement and the License In addition to all other rights and remedies Philips is entitled to injunctive relief for any breach by Customer of Section 2 8 or 10 of these terms and conditions 4 WARRANTY AND WARRANTY DISCLAIMER In addition to the warranty obligations described in the Agreement Philips warrants that any replacement parts or special service tools and Service provided under this Exhibit will be free from defects in material and workmanship for a period of 90 days from the date of installation when installed by Philips or 30 days from the date the parts were delivered to Customer when not installed by Philips Certain items such as x ray tubes photomultiplier tubes cathode ray tubes and high voltage transformers may carry separate warranties that are provided at the time of purchase This warranty does not includ
80. ps will provide all replacement parts which may be refurbished and labor necessary to repair Covered System unless excluded in paragraph 3 All components used are subject to Philips inspection and quality control procedures and shall be warranted to the same extent that a non refurbished component is warranted Parts removed for replacement become the property of Philips and Philips shall remove parts from the System Site Philips may increase its contract prices if the System is upgraded or reconfigured Planned Maintenance Service Philips will provide Customer a planned maintenance schedule for the Covered System Philips will provide such planned maintenance during the Service Coverage hours as defined in the agreement at a time that is mutually agreed upon Customer will make the Covered System available in accordance with this schedule Philips or its subcontractors will provide planned maintenance on the Covered System at scheduled intervals If Philips cannot locate Covered System or Covered System was not made available for planned maintenance when scheduled Philips will notify the Customer that Customer has 90 days to make available Covered System for planned maintenance otherwise customer waives right to service and Philips may delete Covered System from the contract Software Updates Philips will install operating system software updates provided by the Original Equipment Manufacturer OEM for Covered System Software updates mean revi
81. r at such other address as a party may designate from time to time in writing 8 Severability If any provision of this Agreement is held invalid or unenforceable the application of such provision to the remainder of this Agreement shall not be affected thereby but shall remain in full force and effect If any material provision of this Agreement is held invalid or unenforceable the parties shall promptly negotiate in good faith new provisions to replace such invalid or unenforceable provision so as to restore this Agreement as nearly as possible to its original intent and effect 9 Survival Customer s obligation to pay any money due to Philips under this Agreement survives expiration or termination of this Agreement All of Philips rights privileges and remedies with respect to this Agreement will continue in full force and effect after the end of this Agreement 10 Headings and Titles Headings as to the contents of particular articles and sections are for convenience only and are in no way to be construed as part of this Agreement or as a limitation of the scope of the particular articles or sections to which they refer 11 Counterparts This Agreement may be executed in counterparts and any number of counterparts signed in the aggregate by the parties hereto shall constitute a single original document CONFIDENTIAL RightFit Business Agreement Hospital Name Page 8 of 12 Rev 6 14 2012 PHILIPS 12 Compliance with Laws Ph
82. r management and administration and to carry out the legal responsibilities of Philips 164 504 e 4 i b Disclose the PHI in its possession to a third party for the purpose of Philips proper management and administration or to carry out the legal responsibilities of Philips provided that the disclosures are required by law or Philips obtains reasonable assurances from the third party regarding the confidential handling of such PHI as required under the Privacy Rule 164 504 e 4 ii c Provide Data Aggregation services relating to the health care operations of the Customer 164 504 e 2 i B and d De identify any and all PHI obtained by Philips under this Addendum and use such de identified data all in accordance with the de identification requirements of the Privacy Rule 164 502 d 1 3 3 Notification of Certain Breaches Philips shall notify the Covered Entity of any Breach of Unsecured Protected Health Information occurring on or after the effective date specified in Section 13402 of the American Recovery and Reinvestment Act of 2009 ARRA to the extent required by ARRA and the implementing rules and regulations then in effect Such notice shall i be given without unreasonable delay and in no case later than 60 calendar days after the discovery of the Breach and ii include the identification of each individual whose uPHI has been or is reasonably believed by Philips to have been accessed acquired or
83. r party whether disclosed in writing or disclosed orally relating to the business of the disclosing party its customers or its patients and this Agreement and its terms including its pricing terms Each party will use the same degree of care to protect the confidentiality of the disclosed information as that party uses to protect the confidentiality of its own information but not less than reasonable care Each party will disclose such information only to its employees having a need to know such information to perform the transactions contemplated by this Agreement The obligation to maintain the confidentiality of such information will not extend to information in the public domain at the time of disclosure or to information that is required to be disclosed by law or by court order and will expire five years after the Exhibit terminates or expires SUBCONTRACTS AND ASSIGNMENTS Philips may subcontract to service contractors of Philips choice any of Philips service obligations to Customer or other activities performed by Philips under this Agreement No such subcontract will release Philips from those obligations to Customer Customer may not assign this Agreement or the responsibility for payments due under it without Philips prior express written consent which will not be unreasonably withheld INSURANCE Upon Customer request Philips will provide a Certificate of Philips insurance coverage RULES AND REGULATIONS To the extent made kn
84. r than Philips Philips will purchase the Product on behalf of Customer as described above 3 Delivery Requirements Except as otherwise provided herein Philips through its Multi Vendor parts and technical services agrees to supply the Product s within the Delivery Requirements as described herein 4 First Right of Refusal If Philips successfully meets the Delivery Requirements Philips shall be given the first opportunity to provide Customer with products or goods that are substantially similar to or have functionalities substantially similar to the Products In the event that Philips is not able to supply Product s within the Delivery Requirements Customer may at its discretion acquire Product s from an alternate supplier of Customer s choosing at no liability or expense to Philips hereunder 5 Alternate Source If Philips is unable or chooses not to match a written quote from the Customer on a like product for a better price then Customer may acquire a product from an alternate source To purchase a product from an alternate source under this Agreement Customer must prior to purchase provide Philips the details of such transactions including price source warranty period and a copy of the written quote 6 Exchanged Products For each Product sold on an exchange basis Customer shall return a like Product in repairable condition to Philips in accordance with Philips Exchange Policy as in effect from time to time If s
85. raining 2 3 Customer shall maintain the Covered Equipment in strict compliance with the planned and remedial maintenance requirements specified by Philips utilizing replacement parts that meet or exceed Philips specification If Customer does not meet these responsibilities then Philips may terminate any or all of the options specified above and may void any warranty provided herein 3 TERMINATION In addition to the termination rights described in the Agreement Philips may immediately terminate this Exhibit or the Agreement and the License without liability to Customer by providing Customer written notice of termination on the happening of any of the following a Customer removes the system from operation at the Covered System Site b Customer no longer owns sole and exclusive title to the Covered System c someone other than Customer Philips or an authorized Philips distributor or dealer services the Covered System d a competitor of Philips acquires an ownership interest in Customer or e Customer or the Trainee s violates any condition or restriction set forth in Customer Non Disclosure Agreement Terms and Conditions or Customer Employee Non Disclosure Agreement Customer must notify Philips immediately upon the happening of any of the above events If Customer or Trainee s breaches any other term covenant or condition herein then Philips may terminate this Exhibit or the Agreement and the License without liability to Customer u
86. ring the Measurement Period The Base Hours will be the contracted hours of coverage provided for under the Agreement for each particular piece of Uptime System c Downtime means the time that the Uptime System is unable to produce diagnostic images during the Base Hours of any given Measurement Period solely due to Philips design manufacturing materials or Service performance failure Measurement of Downtime commences when the Customer notifies the Philips customer service center that the Uptime System is unable to produce diagnostic images Downtime does not include time due to planned maintenance service cryogen replenishment installation of upgrades and updates x ray tube replacement or an occurrence or condition excluded under the Agreement Philips may verify Downtime and adjust calculations accordingly d Uptime Hours is determined by subtracting the total Downtime from the Base Hours for a particular piece of Uptime System Uptime Hours Base Hours Downtime e Uptime Percentage is determined by dividing the Uptime Hours by the Base Hours and multiplying the result by 100 Uptime Percentage Uptime Hours Base Hours x 100 3 ADJUSTMENT SCHEDULE If the Uptime Percentage specified in Schedule 3 a is not achieved for Uptime System then the specified discount will be applied to all payments due during the next Uptime Measurement Period for the Uptime System that did not achieve the Uptime Percentage Schedule 3 a Agreement P
87. rpose of determining the rights of the parties with respect to the subject matter of this Agreement prior to such expiration or termination C DELIVERY RISK OF LOSS AND TITLE 1 Terms of Delivery The terms of delivery of Products shall be F O B Philip Nashville Tennessee facility for Stock Products or Philips approved supplier s facility for non Stock Products with prepaid freight at Customer s expense Unless otherwise agreed upon by Philips in writing Philips shall select carriers Upon request of Customer Philips shall arrange for shipping of Products from Philips Nashville Tennessee facility or Philips approved supplier s facility to Customer s requested delivery locations provided that all shipping expenses including insurance to protect against loss or damage to the Products in transit shall be prepaid in advance solely by Customer 2 Risk of Loss and Title All risk of loss or damage and title to the Products will pass to Customer upon delivery by Philips to carrier at Philips facility or Philips approved supplier s facility Philips represents and warrants i that it shall have ownership rights and interests in and to the Products to be sold to Customer under this Agreement necessary to convey to Customer good and marketable title thereto free and clear of all liens claims and encumbrances and ii upon the delivery of the Products to the carrier at Philips Nashville Tennessee facility or Philips
88. rvice will be performed and documented by vendor s staff and ii the protocols by which invoices for services or materials provided for Customer under the Agreement will be received and processed for payment This agency authorization is effective at all times the Agreement remains in effect Philips Healthcare a division CustomerName of Philips Electronics CityStateZip North America Corporation Authorized Signature Name typed or printed Title Date PHILIPS Attachment 6 2 Amendment to Agreement Philips and Customer agree to amend the Agreement to which this Attachment is attached as follows The parties to this Amendment have signed this Amendment by their duly authorized officers on the date written below Philips Healthcare a division CustomerName of Philips Electronics CityStateZip North America Corporation Authorized Signature Name typed or printed Title Date PHILIPS Attachment 6 3 HIPAA Business Associate Addendum This Business Associate Addendum Addendum effective on the Compliance Date defined in Section 5 3 below is entered into by and between Philips Healthcare with an address at 22100 Bothell Everett Hwy Bothell WA 98021 Philips and with an address at Customer each a Party and collectively the Parties 1 BACKGROUND AND PURPOSE The Parties have entered into one or more contracts described or listed on Schedule A at
89. s no right to updates and upgrades that are released before the start date of the Agreement If the Agreement expires after Philips notifies Customer than an REV 8 8 2012 PHILIPS update or upgrade is available then the Customer is entitled to receive the offered update or upgrade for three 3 months following such termination 4 1 1 Functionality Customer is entitled to additional functionality or options previously purchased or bundled with the software if available in the update or upgrade released on or after the start date of the Agreement Customer may purchase new separately licensed functionality or options for the System separately after the start date of the Agreement Customer acknowledges that certain functionality in current and previous software versions may not be available in upgrades 4 1 2 Hardware updates and upgrades Software updates and upgrades may require hardware updates or upgrades Customer is responsible for any such hardware updates or updates Upgrade installation and clinical support of the installation are subject to the terms of this Agreement 4 2 To receive an upgrade 4 2 1 Customer must be in compliance with all terms and conditions of this Exhibit and the Agreement including the availability of Philips remote service capability and access to the System by Philips personnel 4 2 2 Customer must identify one Customer representative in writing to Philips that will manage and be responsible for Customer
90. sions to OEM proprietary operating system software that enhance existing System functions and operation without hardware changes but will not install operating system software upgrades to new software platforms or software options offered separately for sale by the OEM 2 CONTRACT ADMINISTRATION 2 1 2 2 System Additions and Deletions After completing the inspection Customer may add a System to the Covered System list by contacting Philips Customer and Philips will agree on a mutually agreeable price and contract start date The covered System will be added to the contract after receipt of the signed inventory modification form Customer may delete Covered System only if i Customer permanently removes it from operation or ii it is no longer under Customer s exclusive ownership or control and Customer notifies Philips in writing The covered System will be deleted from the contract after receipt of the signed inventory modification form Management and Staffing If on site staffing is provided Philips will determine and provide the management and service staff necessary to provide the Services under this Exhibit Philips will pay all salaries payroll and other employment taxes or fees worker s compensation insurance and other charges or insurance levied or required by any federal state or local statutes relating to its employees 2 3 Customer shall execute the Agency Authorization Agreement set forth as Attachment C as required
91. sulting from errors or omits in or absences of such reporting ENTIRE AGREEMENT EXHIBITS This Agreement constitutes the entire understanding of the parties and supersedes all other agreements written or oral regarding its subject matter No additional terms conditions consent waiver alteration or modification will be binding unless in writing and signed by Philips authorized representative and Customer Additional or different terms and conditions whether stated in a purchase order or other document issued by Customer are rejected and will 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 will be part of this Agreement The service specific exhibits listed below and any associated attachements are incorporated herein as they apply to the services listed on the quotation and their additional terms shall apply solely to Customer s purchase of the services specified therein If any terms set forth in an exhibit conflict with terms set forth in these Terms and Conditions of Sale the terms set forth in the schedule shall govern Exhibit 1 Additional Imaging System Service Terms and Conditions Exhibit 2 Additional Support amp Assist Coverage Terms and Conditions Exhibit 3 Uptime Guarantee Exhibit 4 Philips Technology Upgrades Exhibit 5 Additional Clinical Education Training Terms and Condition Exhibit 6 Additi
92. supply and demand of like parts throughout the industry 2 Non Stock Products a Products Sourced from non Philips OEM Suppliers The price for a Product that Philips obtains from a supplier that is not the original manufacturer of the Product Non Stock Product shall be Philips cost plus ten percent 10 with a maximum mark up not to exceed 2500 not including glassware The price for a Product that Philips obtains from a non Philips OEM Non Stock Products shall be Philips cost plus 300 3 Customer Loyalty Discount a Initial Customer Loyalty Discount Customer shall be eligible to earn an Initial Customer Loyalty Discount of 50 off of purchases in Stock Products excluding glassware up to a total of in products purchased The Initial Customer Loyalty Discount shall be utilized to reduce the invoiced Market Price of purchased Stock Products less the __ discount as indicated above in Section 1 excluding glassware by 50 until the Initial Customer Loyalty Discount has been fully utilized To receive the Initial Customer Loyalty Discount Customer must demonstrate spending at 100 of their Annual Purchase Target of as measured on a 3 month rolling average b Additional Customer Loyalty Discount The Customer shall be eligible to earn an Additional Customer Loyalty Discount The Additional Loyalty Discount will total 10 of the purchases above the baseline of of Philips Stock Products excluding glasswar
93. t i 24x7x365 F Biomen ASSISI Two Hour Not Applicable Not Applicable Not Applicable Discount Included Services Response Applied 1 tExcluding Philips recognized holidays ttExcluding Supplies and Accessories RESPONSE TIME DEFINITIONS 2 1 2 2 2 3 2 4 2 5 Initial Telephone Response is the time for a qualified Philips service representative to make direct telephone contact with the Customer following a request for Service On Site Response Time is the time for a qualified Philips service representative to arrive on site to begin service Typical Bench Repair Time is the time for a qualified Philips service representative to repair and return the Customers existing Patient Care Equipment from Philips receipt of the device to Philips shipment of such equipment to Customer Typical Unit Exchange Time is the time for a qualified Philips service representative to exchange the Customers Patient Care Equipment with a new and or refurbished device Philips Next Business Day response depends on the location of the Customer Philips response time will be i next business day response time for System Sites located within 100 miles of the responding Philips Field Service Engineer ii two business days for System Sites located within 101 200 miles of the responding Philips Field Service Engineer iii three business days for System Sites located within 201 300 miles of
94. t achieved for a particular System within 60 days after the end of a Measurement Period 6 WARRANTY DISCLAIMER Philips full Uptime Guarantee obligations to Customer are described in this Exhibit Philips provides no warranties under this Uptime Guarantee NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE APPLIES TO THIS UPTIME GUARANTEE 7 LIMITATIONS OF REMEDIES AND DAMAGES Philips total liability if any and Customer s exclusive remedy with respect to this Uptime Guarantee and Philips performance hereunder is limited to the remedies stated herein 2 REV 5 17 2012 PHILIPS Exhibit 4 PHILIPS TECHNOLOGY UPGRADES If Philips Technology Upgrade Option PTU Option is purchased under this Agreement then Philips will upgrade the System software and hardware as follows 1 1 For System software Upgrades Philips will provide the latest available Upgrades if any when available and approved by Philips to the System operating system software basic application software and software options purchased with the System or purchased separately from Philips for the System This paragraph 1 does not apply if the PTU Option is for hardware only For System hardware Upgrades Philips will provide the latest available upgrade if any to the System hardware component s expressly described on the Agreement under the PTU Option Philips will provide such hardware at the time and quantity as expressly described on the Agreement und
95. tached hereto the Underlying Contract s which require Philips to be provided with to have access to and or create Protected Health Information that is subject to the federal regulations issued pursuant to the Health Insurance Portability and Accountability Act H PAA and codified at 45 C F R parts 160 and 164 HIPAA Regulations and Title XIII of the American Recovery and Reinvestment Act of 2009 HITECH This Addendum shall supplement and or amend each of the Underlying Contract s only with respect to Philips receipt use and creation of PHI under the Underlying Contract s to allow Customer to comply with sections 164 502 e and 164 314 a 2 i of the HIPAA Regulations and Sections 13401 a and 13404 a of HITECH Except as so supplemented and or amended the terms of the Underlying Contract s shall continue unchanged and shall apply with full force and effect to govern the matters addressed in this Addendum and in each of the Underlying Contract s 2 DEFINITIONS Unless otherwise defined in this Addendum all capitalized terms used in this Addendum have the meanings ascribed in the HIPAA Regulations and HITECH provided however that PHI ePHI and uPH shall mean Protected Health Information Electronic Protected Health Information and Unsecured Protected Health Information respectively as defined in 45 C F R 160 103 and Section 13402 h of HITECH limited to the information Philips received from or
96. tem and subsystems their potential trouble spots and how to isolate and repair such trouble spots Selected detailed manufacturing instructions developed by Philips may be disclosed to me Philips troubleshooting methods and protocols for the service and maintenance of its System include detailed computer diagnostic programs and special codes to perform tests and analysis to help locate and repair particular malfunctions of components of the Covered System acknowledge that the Philips training will be extremely valuable and cannot be duplicated elsewhere and that only at the Philips training school will have access to the special troubleshooting methods and protocols that Philips has developed through painstaking effort and at great expense will treat the Philips Proprietary Information in strictest confidence and will not directly or indirectly disclose reverse engineer decompile modify adapt translate create derivative works disassemble disseminate lecture upon publish copy or duplicate any such information without Philips prior express written consent This obligation to maintain the confidentiality of Philips Proprietary Information will endure permanently Upon my employment with my current employer Employer terminating prior to or upon my retirement or upon a change in my employment responsibilities wherein my use of the Philips Proprietary Information is no longer required will turn over to a designated individu
97. the State of Washington without regard to principles of choice of law If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable the unenforceable provision may be stricken without affecting the remainder of this Agreement Employee s Signature Date 4 REV 5 17 2012 PHILIPS Exhibit 3 UPTIME GUARANTEE 1 GENERAL Philips shall provide to Customer the uptime guarantee specified below Uptime Guarantee on the System listed in the quotation or Attachment A as having uptime as an entitlement Uptime System Uptime System does not include peripherals such as external printers archiving devices external display monitors or attached cameras If Customer does not meet its responsibilities described in Section 6 of Exhibit 2 then Customer is not entitled to the benefits of this Uptime Guarantee If an item of Uptime System fails to achieve the Uptime Percentage as defined below set forth on Schedule 3 a below then Customer as its sole and exclusive remedy will receive a discount of future Agreement payment s as described in Section 3 below 2 DEFINITIONS a Measurement Period The measurement period for determining Uptime Percentage is 12 months beginning on the effective date of the Agreement and thereafter on the annual anniversary date of the effective date b Base Hours means the hours day and days week over which Uptime Hours and Downtime will be calculated du
98. the responding Philips Field Service Engineer and iv the response time described in the Agreement for System Sites located greater than 301 miles of the responding Philips Field Service Engineer COVERAGE 3 1 3 2 3 3 3 4 Telephone and Remote Support Telephone and remote support coverage is included with all Service Agreements identified in the Exhibit Remote Access amp Diagnostics Philips may remotely access the System to perform services Customer shall provide Philips access to the System Philips Internet based Customer Support Tools Philips will provide one 1 seat license to Philips web based support tool for the System s covered under the Service Agreement On Site Labor and Travel Philips will provide the labor and travel necessary for the delivery of corrective maintenance Services during on site Service Coverage hours On site service coverage hours are Monday to Friday 8 00 am to 5 00 pm excluding holidays REV 5 17 2012 PHILIPS 3 5 Extended Coverage Hours Extended coverage hours for on site labor coverage is seven 7 days per week twenty four 24 hours per day including Philips holidays 3 6 Overtime On Site Labor and Travel If extended coverage hours are not included then overtime on site labor will be billed at a preferred rate 3 7 Parts and Priority Delivery of Parts Philips will provide the parts for corrective maintenance services Priority Delivery of parts is next business day delivery
99. to enforce any provision of this Agreement is not a waiver of that provision or of such party s right to later enforce each and every provision If any part of this Agreement is found to be invalid the remaining part will be effective Notices or other communications will be in writing and will be deemed served if delivered personally or if sent by facsimile transmission by overnight mail or courier or by certified mail return receipt requested and addressed to the party at the address set forth on the face of this Agreement The law of the state in which the System is located will govern any interpretation of this Agreement and dispute between Philips and Customer without regard to the principles of choice of law ADVERSE EVENT REPORTING If Customer notifies Philips of an adverse event then Philips will assist Customer s risk management department in investigating the adverse event on the System covered under this agreement in accordance with clients risk management policies Philips Adverse Event Reporting policy and the reporting requirements of the Safe Medical Device Act of 1990 All information concerning an adverse event shall be treated REV 8 01 2012 26 27 4 PHILIPS as confidential information and will not be discussed with unauthorized personnel Customer remains solely responsible for reporting adverse events to the FDA Philips will not be responsible or liable for this reporting activity nor for any repercussions re
100. to the existing Biomed Assist Services coverage or a new Philips service agreement 4 3 Parts If Parts coverage is included in the Service Agreement then subject to the terms and conditions of this Agreement the cost of parts used in corrective maintenance of the Patient Care Equipment at the Patient Care Equipment Site is included in this Agreement Philips may reject any Customer requests for parts that is not for the Equipment The following applies regardless if Parts coverage is included or not included in the Service Agreement Customer acknowledges and agrees that all parts furnished pursuant this Agreement will only be used in the maintenance service and repair of the Patient Care Equipment at the Patient Care Equipment Site Customer may not resell or exchange such parts with any third party Unless Priority Parts Delivery is included in the Services Agreement all replacement parts ordered under the this Services Exhibit will be shipped using Philips standard shipping priority prepaid subject to availability Other freight arrangements will be at Customer s request and expense Philips may use refurbished components in the repair of the Patient Care Equipment the refurbished components shall be subject to the same inspection and quality control procedures as all other materials used in the manufacture of the Patient Care Equipment and shall be warranted to the same extent that a non refurbished component is warranted 4 4 Exchange Unit If a
101. tomary commercial License in the Software and Documentation is provided in accordance with FAR 12 211 Technical Data and FAR 12 212 Computer Software and for Department of Defense purchases DFAR 252 227 7015 Technical Data Commercial Items and DFAR 227 7202 3 Rights in Commercial Computer Software or Computer Software Documentation c if a federal government or other public sector customer has a need for rights not conveyed under these terms it must negotiate with Philips to determine if there are acceptable terms for transferring such rights and a mutually acceptable written agreement specifically conveying such rights must be executed by both parties ACCESS TO SOFTWARE Customer will provide Philips with a wideband DSL or cable line for use with Philips Software for each Equipment Facility SUMMARY OF SERVICE AND FEES User License means a right to access and use one of the License types listed below representing an individual end user 5 1 Capabilities per User License Type User License Type Capability Customer Portal Enterprise Solution Ability to Issue Service Requests m M Ability to Close Service Requests i Visibility to Service Request Data m a Visibility to Work Order Data Z M Visibility to Asset Information i Ai Workflow Notifications E j Reporting m M Dashboards m m i Search Functionality PHILIPS 5 2 User License Allowance The numbers of Customer Portal User L
102. ts shall entitle one participant to attend one training week For example 1 credit 1 week training course All training courses will be offered on installed fully functioning systems in a dedicated training classroom determined by Philips Purchase volumes will be measured on the annual contract anniversary date and all training credits earned during that period will be applied to the following contract year Training credits must be used by one 1 year from date issued or will be forfeited Philips shall not be responsible for any out of pocket costs of Customer or its employees or agents including without limitation travel and lodging expenses associated with Customer s attendance at any training classes The attendance by Customer s employees or agents will otherwise be subject to any other terms and conditions established by Philips in connection with its training classes including number of individual participants allowed 5 Training Discounts Philips shall also grant Customer a __ discount off of Philips tuition rates as established by Philips from time to time on any additional training classes Philips will make available Customer specific training courses at Customer s request The minimal enrollment requirement for each course is three 3 students with a maximum enrollment in any individual course of six 6 students All other terms and conditions relating to training and as described in this section apply 6 Labor Pricing I
103. uch a Product is not returned in accordance with the Exchange Policy Philips shall invoice Customer for an additional amount as provided in the Exchange Policy Philips Exchange Policy as currently in effect is set forth in Attachment A attached hereto 7 Payment Terms Upon shipment Philips shall invoice Customer for Products covered under this exhibit Invoices shall include i the total amount due thereunder and ii the applicable price for each Product sold Within thirty 80 days of the date of invoice Customer shall pay to Philips the amounts indicated on such invoice as directed therein 8 Duration Termination Term The term of this Exhibit shall commence on the Effective Date and unless sooner terminated in accordance with the provisions herein shall continue for a period of four 4 years thereafter No extension or renewal of this Exhibit shall be effective unless in writing and signed by an authorized representative of each party CONFIDENTIAL RightFit Business Agreement Hospital Name Page 4 of 12 Rev 6 14 2012 PHILIPS 9 Termination This Agreement may be terminated at any time by mutual written agreement of Customer and Philips Should the Customer elect to terminate this Agreement without cause prior to the end of the term of this Exhibit Customer agrees to reimburse Philips for any Initial Product Credit and or Training Credits realized by Customer up to the time of termination The reimbursement schedule
104. uded Provider Philips hereby agrees to immediately notify Customer in the event that it becomes aware that any of its employees providing services at or for Customer have become an Excluded Provider In the event that Philips becomes an Excluded Provider Customer may terminate this Agreement which termination shall be effective immediately upon notice to Philips of such termination In the event that any Philips employee providing services under this Agreement becomes an Excluded Provider Customer may request removal and replacement of that employee 15 Access to Records for Government Inspection Philips agrees until the expiration of four 4 years after the furnishing of services to be provided under this Agreement to make available upon request to the Secretary of the Department of Health and Human Services the Comptroller General of the United States of America or any of their duly authorized representatives the contracts books documents and records that are necessary to certify the nature and extent of reimbursable costs under the Medicare laws If Philips carries out any of this Agreements under this Agreement through a subcontract with a value or cost of Ten Thousand Dollars 10 000 00 or more over a twelve 12 month period with a related organization such subcontract shall contain a requirement identical to that set forth in the preceding sentence IN WITNESS WHEREOF the parties have executed this Agreement on the date f
105. will be as follows During 1 year of the Agreement 100 During 2 year of the Agreement 66 During 3 year of the Agreement 33 During 4 year of the Agreement 0 a Ifat any time either party shall be in material default in performing any obligation herein and shall fail to cure such default to the reasonable satisfaction of the other party within 90 days 10 days if the default consists of Customer s failure to make timely payment for Products purchased after written notice specifying such default the non defaulting party may terminate this Agreement by written notice of termination to the defaulting party within 10 days following such cure period The remedies provided in this Section shall be in addition to any other legal or equitable rights the non defaulting party may have against the defaulting party b Customer may terminate this Agreement immediately upon written notice to Philips under the conditions set forth in Section A 10 above c Philips may terminate this Agreement upon written notice to Customer as set forth in Section A 7 b6 above 10 Effect of Termination Upon expiration or earlier termination of this Agreement all rights obligations and causes of action accruing hereunder prior to such expiration or termination including the rights and obligations under any Purchase Orders issued and accepted prior to termination shall survive and the provisions of this Agreement shall continue to be controlling for the pu
106. ystem failure is attributed to Hardware not supported under the Agreement the Customer shall restore the Software operating system and database Software before Philips begins any Software restoration efforts Philips may offer for an additional charge based upon published labor and material rates Hardware support and Software restoration Services 8 2 Anti Virus Statement Philips Software is a computer based medical product and therefore may be subject to attack by outside computer viruses The Software required to prevent attack by a computer virus must be constantly monitored and updated Customer shall install and maintain anti virus Software in accordance with the System Installation or Reference guides After installing the software Customer shall have the burden of proof if it claims that Philips introduced a Virus discovered in the software Customer will pay an additional amount based on Philips then current time and materials rates for such work in respect of Services rendered in connection with a Virus that was not introduced by Philips Philips shall use reasonable efforts to notify Customer if Philips becomes aware of any Virus in the Software licensed to Customer under this Agreement 8 3 Non Philips Software Assistance Requests for assistance with Hardware operating systems communications network Third Party Software printer configuration etc are outside the scope of this Agreement However if Customer s request then Ph

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