8097 - Contract Executed
Quote
Company Info: Pediatric Emergency Standards, Inc. Expiration Date: 8/26/2022
11870 State Rd 84 Suite C5 Quote Number: Q-03902
Davie, FL 33325
Phone: (954) 944-1114
FAX: (954) 653-3792
Account Name: DENTON FIRE DEPARTMENT Client Contact: Brad Lahart
Account #: 100611 Account Rep: Michael Gener
Bill To: 332 E HICKORY STREET
Ship To: 332 E HICKORY STREET
DENTON, Texas 76201 DENTON, Texas 76201
Product
Code
Description Quantity List Price Unit Price Total
HMPS22 Customization and Setup for Handtevy Mobile 1.000 $2,590.00 $2,590.00 $2,590.00
HMPA22 Annual access to Handtevy Mobile. Access to Medication
Management Software, Unlimited Updates Included,
Clinical and Technical support
1.000 $8,290.00 $8,290.00 $8,290.00
HPB004 Length-based measuring tape 17.000 $50.00 $50.00 $850.00
Subtotal $11,730.00
Total Price $11,730.00
Tax $0.00
Shipping and Handling $34.67
Total $11,764.67
To place an order, please email or fax a copy of the signed Quote and Purchase Order to: Sales@Handtevy.com or (954) 653-3792.
PES requires execution of a Purchase Order for all sales above $5,000 before applicable freight and taxes. The undersigned, on behalf
of Customer, represents that he or she has the authority to sign this Quote and/or Purchase Order for Customer, that Customer is
bound hereby and agrees to the terms, conditions and pricing denoted. Taxes, shipping and handling fees are estimates only and are
subject to change at the time of order. Customer may provide PES with a tax exemption certificate, if applicable.
It is our customers responsibility to provide the most up-to-date and accurate protocol set. Additional fees will apply in the event a
protocol set was submitted in error once customization has been initiated.
__________________________________
(Print Name)
__________________________________
(Authorized Signature)
______________________________
(Title)
______________________________
(Effective Date)
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1. DEFINITIONS.
a. “Agreement.” The Quote, these Terms and Conditions, and the Purchase
Order or the signed Quote and these Terms and Conditions shall constitute
an agreement of the parties and be collectively referred to as the
“Agreement.”
b. “Customer” shall be identified as such on the Quote.
c. “Customer Data” means data entered by Customer relating to its patients
that is entered into or transmitted through the PES Apps.
d. “Customer Protocols” means the medical practices, protocols, and
guidelines adopted or used by Customer for patient care, including all drug
concentrations, drug dosages, equipment sizes, and other practices adopted
by Customer, formally or informally, from time to time.
e. “Customized” or “Customization” means changes to the PES Apps created
by PES at Customer’s request and for Customer’s benefit in order for
Customer to operate the PES Apps in a manner consistent with Customer’s
Protocols.
f. “Customized Offerings” means the PES Offerings that have been approved
by Customer after Customization.
g. “Effective Date” means the date Customer delivers a signed Purchase
Order to PES.
h. “Initial Term” means the thirteen (13) month period commencing on the
Effective Date.
i. “PES” means Pediatric Emergency Standards, Inc.
j. “PES Apps” means the software application(s) licensed by Customer
pursuant to this Agreement as referenced on the Quote.
k. “PES Materials” means any durable goods provided by PES to Customer
as identified in the Quote.
l. “PES Offerings.” The PES Apps, the PES Materials, and the PES Services
are sometimes collectively referred to as the “PES Offerings.”
m. “PES Services” means professional services provided by PES to Customer
as identified in the Quote, which may include Customization, education
and training courses, and other support services.
n. “Purchase Order” means a document signed by Customer evidencing
acceptance of the Quote.
o. “Quote” means an offer by PES to provide certain PES Offerings at a price
and on terms set forth therein and in these Terms and Conditions. These
Terms and Conditions are incorporated into the Quote.
p. “Renewal Term” means a twelve (12) month period commencing on an
anniversary of the Subscription Start Date in the event that Customer elects
to renew this Agreement pursuant to Section 7(a) below.
q. “SaaS” means software-as-a-service.
r. “Subscription Start Date” means the date that is (i) thirty (30) days after
the Effective Date, or (ii) such earlier date as agreed to in writing by PES
and Customer.
s. The “Term” shall begin on the Effective Date and continue until this
Agreement is terminated or not renewed by either party in accordance with
Section 7 below.
t. “User” means any individual that is an employee of or is or works for a
contractor of Customer and that uses PES Offerings, whether authorized
by Customer to do so or not.
2. LICENSE.
a. License Grant. Subject to the terms of this Agreement, beginning on the
Effective Date and during the Term, PES grants Customer a personal,
nonexclusive license to access and use the PES Offerings. With respect to
PES Apps, such license shall be in object code form only.
b. Customization. Clinical guidelines and related clinical content contained
in the PES Offerings must be approved by Customer pursuant to the
Customization process prior to use in connection with patient care.
Between the Effective Date and the Subscription Start Date is a thirty (30)
day grace period during which Customer shall complete the Customization
process. Both PES and Customer will make reasonable efforts to ensure
that Customer is “live” on the PES Apps as quickly as possible, however,
in no event will the Subscription Start Date be modified for implementation
delays due to Customer. Customer shall have an ongoing obligation to
monitor and update the Customized Offerings to ensure consistency with
Customer’s Protocols, as Customer’s Protocols may evolve over time.
Customer shall submit a written request to PES for prompt revision and
updating of the Customized Offerings when Customer or its medical staff,
employees and/or contractors make modifications to Customer’s Protocols.
c. Improvements. Customer agrees that any improvements or modifications
to the PES Offerings shall belong to PES. Customer hereby grants,
transfers and assigns (and agrees to grant, transfer and assign) to PES any
and all of Customer’s right, title and interest in and to such improvements
or modifications. PES shall not be restricted in any manner in its use of any
intellectual property created by it hereunder for Customer. The foregoing
grant, transfer and assignment (and agreement to grant, transfer and assign)
also applies to any enhancement or improvement recommended orally or
in writing by Customer to PES.
d. Exclusions. The foregoing license does not include the right to, and
Customer has no right to: (i) decompile, reverse engineer, disassemble,
print, copy or display the PES Offerings in whole or in part or otherwise
reduce the PES Apps to a human perceivable form in whole or in part; (ii)
publish, release, rent, lease, sublicense, loan, sell, distribute or transfer all
or any portion of the PES Offerings to another person or entity; (iii) use or
reproduce the PES Offerings for the use or benefit of anyone other than in
connection with Customer’s business enterprise; (iv) alter, modify or create
derivative works of the PES Offerings in whole or in part; (v) use or permit
the use of the PES Offerings for commercial time-sharing arrangements or
providing service bureau, data processing, rental, or other services to any
third party, or (vi) use the PES Offerings or any part or aspect thereof for
any unlawful purpose or to mislead or harass anyone. Use of or access to
the PES Offerings in violation of the terms hereof is strictly prohibited. The
rights granted Customer hereunder do not constitute a sale of any PES
Offerings. PES retains all right, title, and interest in and to the PES
Offerings, including without limitation all software used to provide the
PES Apps (and access via the SaaS), all graphics, user interfaces, logos and
trademarks reproduced through the SaaS, and all goodwill associated with
any of the foregoing, except to the limited extent of Customer’s license
during the Term as set forth herein. Customer’s permission to access or use
the PES Offerings may be limited or suspended immediately if, in PES’s
discretion, this Section or any other provision of this Agreement has been
violated by Customer or any of its Users. Customer agrees that a violation
of this Section will cause PES irreparable and immediate harm, and that
PES is entitled to injunctive relief to prevent such violation. Customer
recognizes that the PES Offerings are protected by copyright and other
laws.
3. FEES.
a. Fees. Throughout the Term, Customer shall pay PES the fees and other
amounts (collectively, “Fees”) for the PES Offerings as set forth in the
Quote. Certain amounts set forth in the Quote, such as applicable taxes,
duties, and shipping and handling fees for PES Materials, are estimates and
may be subject to final pricing at the time of delivery. If applicable to
Customer’s business, Customer may provide PES with a tax exemption
certificate.
b. Payment. In the case of PES Apps, Fees shall be due in full on the
Subscription Start Date and each anniversary thereof. In the case of
courses, payment must be made IN FULL at least twenty-four (24) hours
PEDIATRIC EMERGENCY STANDARDS, INC.
TERMS AND CONDITIONS
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prior to the course start time. In all other cases, Fees are due within thirty
(30) days of receipt of invoice.
c. Suspension of Services. PES may suspend Customer’s access to and use of
the PES Offerings if Customer fails to timely remit payment or is otherwise
in material default hereunder. Any notices of default/termination and
suspension may be combined.
d. Discounts. Items or services listed at no charge on a Quote are included as
part of a package discount or a subscription offering. Customer is
responsible for appropriately allocating the discount extended on package
pricing when fulfilling any reporting obligations.
e. Fee Increases for PES Apps. Fees for PES Apps may increase by up to five
percent (5%) each year, in the sole discretion of PES. Customer will be
notified of any Fee increase at least thirty (30) days prior to the end of the
Initial Term or Renewal Term, as applicable.
f. Fee Increases for PES Materials or PES Services. PES may institute Fee
increases for PES Materials and/or PES Services without notice to its
customers. Any such Fee increases would not be retroactively applied.
g. Taxes and Fees. Fees payable to PES are exclusive of all foreign, federal,
state, and local taxes, including, without limitation, applicable sales, use,
duty, customs, withholding, property, value-added, or similar sales-like
taxes, tax-like charges, fees and liabilities, and credit card processing fees
(but not including taxes based on PES’s income) (“Taxes and Fees”), all of
which shall be the responsibility of Customer. To the extent permitted by
applicable law, Customer is responsible for and will remit (or will
reimburse PES upon PES’s request) such Taxes and Fees as may be paid
by PES on Customer’s behalf. City of Denton will furnish Tax Exemption
Certificate upon execution of agreement.
h. Appropriation of Funds. If Customer is a city, county or other government
entity, the parties agree that Customer may terminate the PES Apps and
PES Services at the end of the Customer’s fiscal term for a failure by
Customer’s governing body to appropriate sufficient funds to enable
Customer to acquire the PES Apps and/or PES Services for the next fiscal
year. Notwithstanding the foregoing, this provision shall not excuse
Customer from past payment obligations or other Fees earned and unpaid
as of the end of such Customer’s fiscal term. Moreover, Customer agrees
to provide PES with reasonable documentation evidencing such
nonappropriation of funds.
i. Third Party Payer. If a third party pays some or all Fees on behalf of
Customer (“Third Party Payer”), the Third Party Payer must submit a
Purchase Order directly. Customer shall immediately pay (and shall remain
jointly and severally liable) for payment if the Third party Payer does not
timely pay the Fees.
j. Late Fees. In the event that any Fees are not paid within thirty (30) days of
when due, such overdue amounts may, in the sole discretion of PES and to
the extent permitted by applicable law, accrue interest until paid in full at
a rate equal to the lesser of (i) one and one-half (1.5%) percent per month,
or (ii) the maximum legal rate. Customer’s payment will not waive or
extend any obligation of Customer to make ongoing payments, as and
when due.
k. Audit Rights. PES may reasonably audit Customer’s use of the PES
Offerings and charge Customer a higher Fee if Customer’s usage includes
facilities, Users, patient populations, or services beyond the scope
determined in development of the Quote.
l. Supplemental Quotes and Purchase Orders. PES and Customer may
execute and exchange additional or supplemental Quotes and/or Purchase
Orders that will be subject to these Terms and Conditions and become part
of this Agreement.
4. DELIVERY.
a. PES Apps. PES shall provide Customer access to PES Apps through a
reasonable system of electronic downloads. PES shall grant Customer
access promptly following completion of the Customization process.
b. PES Materials. Delivery dates for PES Materials are not guaranteed. In the
absence of shipping instructions from Customer, PES will obtain shipping
rates on the Customer’s behalf and for Customer’s account. Delivery shall
be FOB PES, point of shipment, and title and risk of loss shall pass to the
Customer once delivered to Customer’s point of shipment. PES will not be
liable for any loss or damage of any kind due to delays in delivery or
nondelivery resulting from any cause including, but not limited to, acts of
God, labor disputes, governmental authority or edict, war, civil unrest,
terrorist acts, delays in manufacture, failure of Customer to obtain any
required license or permit, or the inability of PES to obtain goods from its
usual sources. Any such delay shall not be considered a breach of any
obligation by PES, and the delivery dates shall be extended for the length
of such delay. Customer and PES shall not be responsible for performance
under the Contract should it be prevented from performance by an act of
war, order of legal authority, act of God, or other unavoidable cause not
attributable to the fault or negligence of the City of Denton. In the event of
an occurrence under this Section, PES will be excused from any further
performance or observance of the requirements so affected for as long as
such circumstances prevail and PES continues to use commercially
reasonable efforts to recommence performance or observance whenever
and to whatever extent possible without delay. PES shall immediately
notify the City of Denton Procurement Manager by telephone (to be
confirmed in writing within five (5) calendar days of the inception of such
occurrence) and describe at a reasonable level of detail the circumstances
causing the non-performance or delay in performance.
5. SERVICE LEVEL AGREEMENT.
a. Hosting. PES shall be responsible for hosting and managing PES Apps.
b. Service Level Agreement. For each calendar month during the Term, PES
shall use commercially reasonable efforts to ensure that the PES Apps
accessed by Customer via SaaS will maintain a level of uptime equal to or
better than ninety-nine percent (99%) (the “Service Level Agreement” or
“SLA”). “Uptime” will be calculated using the following formula: Uptime
= (T-TNF) x 100/T where “T” is the total number of hours that the PES
App(s) is typically used per month (determined by multiplying the number
of hours per day that the PES App(s) is typically used by the number of
days per week that the PES App(s) is typically used, and multiplying the
result by 4-5 weeks in a month), and “TNF” is the number of hours the PES
App(s) or any component of the PES App(s) licensed by Customer under
the applicable Purchase Order is not functional or otherwise unavailable
during the month for any reason other than Scheduled Downtime (as
defined below) or as a result of the Permitted Exclusions (as defined below)
(the hours calculated will only include those hours that the such PES Apps
would typically be in use). If any material portion of the total functionality
of the PES Apps(s) is unavailable for operational use, the PES App(s) will
be considered down from the time that Customer notifies PES that a PES
App(s) is non-functional and the time that such PES App(s) is serviced and
made available for use. A minimum of ninety-nine percent (99%)
performance is based on the network hardware being operational.
A PES App will be not considered down if the reason for the unavailability
is a result of: (i) Scheduled Downtime or (ii) a Permitted Exclusion.
If the SLA is not met in any calendar month (other than as a result of
Scheduled Downtime or a Permitted Exclusion), PES shall provide
Customer, as its sole and exclusive remedy, a credit equal to two percent
(2%) of the prorated monthly Fee for the month that the PES App(s) was
unavailable (the “Prorated Monthly Fee”), plus an additional one percent
(1%) of the Prorated Monthly Fee for each one percent (1%) that applicable
Uptime is less than 99%, up to an aggregate maximum credit of six percent
(6%) of the Prorated Monthly Fee. PES shall calculate Uptime and any
service level downtime using its system logs and other records.
c. Scheduled Downtime. If PES determines that it must intentionally interrupt
the PES Apps or that there is a potential for the PES Apps to be interrupted
to conduct system maintenance (collectively, “Scheduled Downtime”),
PES will use good-faith efforts to notify Customer of such Scheduled
Downtime at least forty-eight (48) hours in advance, and will use
commercially reasonable efforts to ensure that Scheduled Downtime
occurs during the hours of 12:00 a.m. to 6:00 a.m. Central Time.
d. Permitted Exclusions. Notwithstanding any other provision of this
Agreement to the contrary, performance issues resulting from any of the
following shall be considered a “Permitted Exclusion” for purposes of the
SLA: (i) any force majeure or other event caused by factors outside of
PES’s reasonable control; (ii) any actions or inactions of Customer or any
third parties; (iii) any third party or Customer-provided network, hardware,
device or equipment failure; or (iv) general Internet operations problems.
PES shall only be responsible for hardware and software upon which its
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PES Apps are hosted and its internet service provider up to the point its
internet service provider connects with the public internet. Customer-
provided network hardware support (i.e. fileservers, workstations, hubs,
routers, etc.) is the responsibility of Customer. Customer and PES shall not
be responsible for performance under the Contract should it be prevented
from performance by an act of war, order of legal authority, act of God, or
other unavoidable cause not attributable to the fault or negligence of the
City of Denton. In the event of an occurrence under this Section, PES will
be excused from any further performance or observance of the
requirements so affected for as long as such circumstances prevail and PES
continues to use commercially reasonable efforts to recommence
performance or observance whenever and to whatever extent possible
without delay. PES shall immediately notify the City of Denton
Procurement Manager by telephone (to be confirmed in writing within five
(5) calendar days of the inception of such occurrence) and describe at a
reasonable level of detail the circumstances causing the non-performance
or delay in performance.
e. Customer Must Request Service Credit. To receive a credit pursuant to
Section 5(b), Customer must notify PES by email or otherwise in writing
of its request, with receipt confirmation, within thirty (30) days of service
interruption.
6. CUSTOMER DATA / PRIVACY.
a. Ownership and Use of Data. Except as provided below, unless it receives
Customer’s prior written consent, PES shall not: (i) access, process, or
otherwise use Customer Data; or (ii) intentionally grant any third party
access to Customer Data, including without limitation, PES’s other
customers, except PES subcontractors that are subject to a reasonable
nondisclosure agreement. As between PES and Customer, all Customer
Data shall be owned by Customer. Notwithstanding the foregoing, PES
may use and disclose Customer Data to fulfill its obligations under this
Agreement or as required by applicable law or by proper legal or
governmental authority. To the extent that it is not prohibited from doing
so by law or the terms of such legal or governmental demand, PES shall
give Customer prompt notice of any such legal or governmental demand
and reasonably cooperate with Customer in any effort to seek a protective
order or otherwise to contest such required disclosure, at Customer’s
expense.
b. Anonymized Data. Notwithstanding any provision herein, PES may use,
reproduce, license, or otherwise exploit Anonymized Data, provided that
Anonymized Data does not contain and is not PHI (as defined in the Health
Insurance Portability and Accountability Act or 1996 and its related
regulations, as each may be amended). “Anonymized Data” means
Customer Data with PHI and the names and addresses of Customer and its
Users removed.
7. TERM; TERMINATION.
a. Renewal Upon Payment of Fees. Thirty (30) days prior to each anniversary
of the Subscription Start Date, PES shall invoice Customer for Fees for the
next twelve (12) month period. Payment of such Fees by Customer shall
constitute a renewal of this Agreement for an additional twelve (12) month
Renewal Term, during which time this Agreement may only be terminated
either (i) by mutual agreement of the parties, or (ii) for Cause pursuant to
Section 7(c) below.
b. Non-Renewal. Customer may elect not to pay Fees for a Renewal Term, in
which event this Agreement and Customer’s access to the PES Apps shall
terminate at the end of the Initial Term or Renewal Term then in effect.
PES may elect not to renew this Agreement for a Renewal Term by
providing Customer with at least thirty (30) days advance written notice,
in which event this Agreement and Customer’s access to the PES Apps
shall terminate at the end of the Initial Term or Renewal Term then in
effect.
c. Termination for Cause. Either party may terminate this Agreement, and
Customer’s use of the PES Offerings, for “Cause” in the event that:
i. Either party breaches a material provision of this Agreement (which
shall include non-payment of Fees) and such breach is not cured
within 30 days after written notice is provided to the breaching party.
Customer’s access to the PES Offerings may be suspended during the
30-day cure period if the breach would cause potential damage to PES
or otherwise renders Customer’s continued use thereof unsafe;
ii. Either party files a petition in bankruptcy, whether voluntary or
involuntary, or an assignment for the benefit of creditors, in which
event termination shall be effective immediately; or
iii. Customer breaches or threatens to breach any of the provisions of:
(A) Section 2(d) with respect to exclusions to Customer’s license
hereunder; or (B) Section 10 regarding confidentiality. Termination
pursuant to this Section 7(c)(iii) shall be immediate upon written
notice by PES.
d. Purchase Order Cancellation or Change. After the Effective Date, Purchase
Orders may not be cancelled, changed, suspended or deferred without the
express, written consent of PES. Customer agrees to pay all Fees and costs
associated with any cancellation, change, suspension or deferral of a
Purchase Order including, without limitation, for PES’s Customization
work and PES’s efforts to mitigate damages. If PES agrees to allow
cancellation of a Purchase Order, then this Agreement shall terminate as of
the date of such mutual agreement, otherwise, this Agreement and
Customer’s obligation to pay Fees shall continue for the remainder of the
Term.
e. Returns. PES Materials may be returned for a refund within thirty (30) days
of the delivery date; provided, that returned PES Materials will not be
accepted if they have been used or are not in good condition. Customized
PES Offerings are non-refundable. If accepted, returned PES Materials are
subject to a fifteen percent (15%) restocking fee. Return shipping fees are
Customer’s responsibility. If Customer desires to return PES Materials,
Customer must first call PES Customer Service at 866.867.3192 and obtain
a Return Goods Authorization Number (RGA#). Customer must then
repackage PES Materials and mail them to Pediatric Emergency Standards,
Inc., 11870 State Road 84, Suite C5, Davie, Florida 33325. PES Materials
that are returned without prior authorization will be refused, and the carrier
will charge Customer freight in both directions. If PES accepts returned
items and issues a refund pursuant to this Section, then this Agreement
shall terminate as of such refund date.
f. Effect of Termination. Upon any termination of this Agreement pursuant
to this Section 7, Customer’s license to use and access to the PES Offerings
will immediately cease and all Fees due hereunder shall be immediately
due and payable; provided, however, that, in the event Customer terminates
this Agreement pursuant to Section 7(c)(i) as a result of an uncured breach
by PES or pursuant to Section 7(c)(ii) in the event PES files a petition in
bankruptcy or makes an assignment for the benefit of creditors, then
Customer shall be relieved of any further obligation to pay Fees and PES
shall refund to Customer prorated Fees already paid by Customer for the
remainder of the Term. The applicability of certain provisions in this
Agreement shall survive termination as set forth in Section 18(e) below.
8. SERVICE AND REPAIRS. Updates to the PES Apps shall be made
available to Customer at no additional charge. All service and/or repairs
are performed wholly or in part at the discretion of PES. PES Materials
damaged in delivery will be replaced at no cost to the Customer. Damage
caused by wear and tear, abuse or accident is at the expense of Customer.
The remedies provided herein are exclusive.
9. DISCLAIMERS.
a. Disclaimer of Warranties. EXCEPT AS PROVIDED HEREIN, THE PES
OFFERINGS ARE PROVIDED ON AN “AS IS” BASIS, AND PES
EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES RELATED
THERETO, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A
PARTICULAR PURPOSE, AND OTHERWISE.
b. Disclaimers regarding Technology. Customer acknowledges that accessing
data online involves risks of unavailability of information and Customer
assumes such risks. Customer has sole responsibility for obtaining,
maintaining and securing its connections to the Internet. PES makes no
representations to Customer regarding the reliability, performance or
security of any network or provider. PES cannot control the flow of data to
or from its network and other portions of the internet as such flow depends,
in large part, on the performance of internet service providers or third
parties. At times, actions or inactions of such third parties may impair or
disrupt
Customer’s connections to the internet (or portions thereof). Accordingly,
PES disclaims any and all liability resulting from or related in any way to
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any unavailability of a PES App, including as a result of Scheduled
Downtime or a Permitted Exclusion, and Customer acknowledges that its
sole remedies in any such event are as set forth in Section 5(b). For these
reasons, Customer further agrees to instruct its Users and all medical
personnel to have hard copies of Customer’s Protocols and the PES
Materials or other backup options immediately available at all times in case
access to the PES Apps is interrupted or otherwise becomes unavailable.
c. Disclaimers regarding Clinical Content.
i. PES makes no representations or warranties with respect to the
clinical content contained in the PES Offerings and in the Customized
Offerings approved by Customer.
ii. Clinical guidelines and related clinical content contained in the PES
Offerings must be approved by Customer pursuant to the
Customization process prior to use in connection with patient care.
Customer shall have an ongoing obligation to monitor and update the
Customized Offerings to ensure consistency with Customer’s
Protocols, as Customer’s Protocols may evolve over time. Customer
shall submit a written request to PES for prompt revision and updating
of the Customized Offerings when Customer or its medical staff,
employees and/or contractors make modifications to Customer’s
Protocols.
iii. Customer hereby acknowledges that the Customized Offerings are
not a substitute for the judgment of licensed medical professionals.
The Customized Offerings are tools that may assist medical
professionals in the delivery of care to patients. All medical
judgments are reserved to licensed clinicians. Failure to render care
consistent with recognized standards of care may result in injury to
the patient.
iv. Customer must determine for itself whether the PES Offerings will
meet its needs, and PES makes no representations or warranties in
that regard.
10. CONFIDENTIALITY.
a. Confidential Information. For purposes of this Agreement, the term
“Confidential Information” means: (i) any non-public information of PES
or Customer including, without limitation, information regarding the PES
Offerings, information relating to current and planned products and
services of PES and its technology, techniques, know-how, research,
engineering, designs, finances, accounts, procurement requirements,
manufacturing, customer lists, business forecasts and marketing plans; (ii)
PES's security controls, policies, procedures, audits, or other information
concerning PES's internal security posture; (iii) patient information
obtained by Customer; (iv) any other information of a party that is
disclosed in writing and is conspicuously designated as “Confidential” at
the time of disclosure; (v) this Agreement, including the Quote.
Notwithstanding the foregoing, Confidential Information does not include
information that: (A) is in the other party’s possession at the time of
disclosure; (B) is independently developed without use of or reference to
Confidential Information; (C) becomes known publicly, before or after
disclosure, other than as a result of a party’s improper action or inaction;
(D) is approved for release in writing by the disclosing party; or (E) is
required to be disclosed by law. Customer and PES shall not be responsible
for performance under the Contract should it be prevented from
performance by an act of war, order of legal authority, act of God, or other
unavoidable cause not attributable to the fault or negligence of the City of
Denton. In the event of an occurrence under this Section, PES will be
excused from any further performance or observance of the requirements
so affected for as long as such circumstances prevail and PES continues to
use commercially reasonable efforts to recommence performance or
observance whenever and to whatever extent possible without delay. PES
shall immediately notify the City of Denton Procurement Manager by
telephone (to be confirmed in writing within five (5) calendar days of the
inception of such occurrence) and describe at a reasonable level of detail
the circumstances causing the non-performance or delay in performance..
b. Nondisclosure. The parties shall not use Confidential Information for any
purpose other than to fulfill their respective obligations under this
Agreement. Each party: (i) shall ensure that its employees or contractors
are bound by confidentiality obligations no less restrictive than those
contained herein; and (ii) shall not disclose Confidential Information to any
third party without prior written consent from the disclosing party. Without
limiting the generality of the foregoing, the receiving party shall protect
Confidential Information with the same degree of care it uses to protect its
own confidential information of similar nature and importance, but with no
less than reasonable care. A receiving party shall promptly notify the
disclosing party of any misuse or misappropriation of Confidential
Information of which it becomes aware.
c. Injunction. Customer agrees that breach of this Section would cause PES
irreparable injury, for which monetary damages would not provide
adequate compensation. In such instance, PES will be entitled to injunctive
relief against such breach or threatened breach, without PES proving actual
damages or posting a bond or other security, provided that if a judge
determines that a bond is required, the parties agree that One Thousand
Dollars ($1,000) shall be a reasonable bond.
d. Open Records Laws and other Disclosure Requests. PES acknowledges
that Customer may be required to disclose certain Confidential Information
if mandated by court order or, in the case of a Customer that is a
governmental entity, pursuant to applicable open records laws or lawful
public records requests. At such time as Customer becomes aware that it
may be required to disclose Confidential Information, it agrees to (i)
provide PES with prompt written notice in order to allow PES to protect
its Confidential Information, object to the disclosure, and/or to seek a
protective order, and (ii) cooperate with PES in such efforts. In addition to
the obligations of this Section with respect to Confidential Information
generally, Customer agrees to provide additional protection to PES source
code information pursuant to Section 10(e) below.
e. Source Code. THE SOURCE CODE FOR THE PES APPS SHALL BE
CONSIDERED HIGHLY CONFIDENTIAL INFORMATION UNDER
THIS AGREEMENT AND MAY NOT, UNDER ANY
CIRCUMSTANCE, BE DISCLOSED BY CUSTOMER TO ANY THIRD
PARTY EXCEPT PURSUANT TO A VALID COURT ORDER.
f. Return of Confidential Information. Immediately upon termination of this
Agreement or upon request, each party agrees to promptly return all
Confidential Information and copies thereof belonging to the other party.
If Customer is a governmental entity and required to retain certain
Confidential Information after termination of this Agreement, then
Customer shall retain only that portion of the Confidential Information that
it is strictly required to retain under applicable law, return all other
information to PES, and execute a reasonable non-disclosure agreement in
connection with the retained Confidential Information.
11. INFRINGEMENT.
a. IP Infringement. PES shall defend and indemnify Customer from any
damages, costs, liabilities, expenses (including reasonable and actual
attorney’s fees) actually incurred or finally adjudicated as to any third party
claim or action alleging that the PES Apps infringe or misappropriate any
third party’s patent, copyright, trade secret or other intellectual property
rights enforceable in the applicable jurisdiction (each a “Claim”).
b. IP Remedies. If any PES Offering becomes, or in PES’s opinion is likely
to become, the subject of an infringement or misappropriation claim, PES
may, at its option and expense, either (i) procure for Customer the right to
continue using such PES Offering; (ii) replace or modify the PES Offering
so that it becomes non-infringing; or (iii) terminate Customer’s right to use
the PES Offering and issue Customer a refund for any Fees for periods
after such termination. Notwithstanding the foregoing, PES will have no
obligation or otherwise with respect to any infringement or
misappropriation claim based upon: (A) any use of the PES Apps not in
accordance with this Agreement or for purposes not intended by PES; (B)
any use of the PES Offerings in combination with other products,
equipment, software, or data not supplied or authorized by PES, (C) any
use of any release of the PES Apps other than the most current release
made available to Customer at no additional charge; or (D) any
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modification of a PES Offering made by any person other than PES or an
authorized representative or agent thereof.
c. Sole IP Liability. This Section is PES’s sole obligation and liability, and
Customer’s sole remedy, for potential or actual intellectual property
infringement relating to the PES Offerings.
d. Procedures. The party seeking indemnification (the “Indemnified Party”)
must give prompt written notice of such Claim to the other party (the
“Indemnifying Party”), accompanied by copies of any written
documentation regarding the Claim received by the Indemnified Party. The
Indemnifying Party shall compromise or defend, at its own expense and
with its own counsel, any such Claim. The Indemnified Party will have the
right, at its option, to participate in the settlement or defense of any such
Claim, with its own counsel and at its own expense; provided, however,
that the Indemnifying Party will have the right to control such settlement
or defense. The Indemnifying Party will not enter into any settlement that
imposes any liability or obligation on the Indemnified Party without the
Indemnified Party’s prior written consent. The parties will cooperate in any
settlement or defense and give each other full access to all relevant
information, at the Indemnifying Party’s expense.
12. GOVERNMENT REGULATIONS. Subject to the laws of the state of
Texas and without waiving any applicable immunity, each party
agrees to comply with all applicable import, export and anti-corruption
statutes and regulations of the United States in connection with the
manufacture, sale and distribution of the PES Offerings including,
without limitation, the Foreign Corrupt Practices Act. PES agrees to
indemnify and hold harmless Customer from all claims, demands,
damages, costs, fines, penalties, attorneys’ fees and all other expenses
arising from a party’s failure to comply with this Section and/or
applicable laws, rules and/or regulations governing the PES Offerings.
13. LIMITATION OF LIABILITY.
a. LIMITATION OF DAMAGES. UNDER NO CIRCUMSTANCES
SHALL PES OR CUSTOMER BE LIABLE FOR ANY
CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR
INCIDENTAL DAMAGES, INCLUDING CLAIMS FOR DAMAGES
FOR LOST PROFITS, GOODWILL, USE OF MONEY, INTERRUPTED
OR IMPAIRED USE OF THE PES OFFERINGS, AVAILABILITY OF
DATA, STOPPAGE OF WORK, OR IMPAIRMENT OF OTHER
ASSETS.
b. LIMITATION OF LIABILITY. PES'S MAXIMUM LIABILITY FOR
ALL CLAIMS OF LIABILITY ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED
FIVE (5) TIMES THE FEES PAID BY OR ON BEHALF OF
CUSTOMER IN THE TWELVE (12) MONTHS IMMEDIATELY
PRECEDING THE APPLICABLE CLAIM.
c. Insurance. Each party shall be responsible to carry insurance in appropriate
amounts to cover the activities conducted by it under this Agreement. Upon
written request, PES agrees to provide Customer with evidence of its
insurance coverages.
14. DISPUTE RESOLUTION.
a. Limitation of Action. Except for claims arising from Customer’s
nonpayment or underpayment of amounts owed to PES, any and all claims
arising out of or related to this Agreement shall be barred, unless instituted
either (i) within two (2) years from the date that the complaining party
knew or should have known of the facts giving rise to a claim, or (ii) the
applicable Florida statute of limitations, whichever is shorter.
b. Governing Law. This Agreement and any claim or controversy arising
hereunder (whether in contract, tort, or otherwise, including statutory,
consumer protection, or common law) shall be governed by the laws of the
State of Texas , without regard to conflicts of law. The UN Convention for
the International Sale of Goods and the Uniform Computer Information
Transactions Act will not apply. In any dispute, each party will bear its
own attorneys’ fees and costs.
c. Mediation. In the event of any dispute, claim or disagreement arising out
of or relating to this Agreement, the parties shall first submit the dispute,
claim or disagreement to non-binding mediation administered by the
American Arbitration Association (the “AAA”) in accordance with its
Commercial Mediation Procedures. The place of mediation shall be
Denton County, Texas . The mediation shall be conducted by one (1)
mediator selected in accordance with AAA rules, unless the parties
otherwise mutually agree to a panel of three (3) mediators.
d. Binding Arbitration. If the dispute, claim or disagreement is not resolved
within sixty (60) days after the initial mediation meeting, then either party
may submit the dispute, claim or disagreement to binding arbitration
administered by the AAA in accordance with the provisions of its
Commercial Arbitration Rules and, except as provided in Section 14(e)
below, such arbitration shall be the sole means of dispute resolution. The
place of arbitration shall be Fort Lauderdale, Broward County, Florida.
The arbitration shall be conducted by one (1) arbitrator selected in
accordance with the AAA rules, unless the parties otherwise mutually
agree to a panel of three (3) arbitrators.
e. Injunction. Notwithstanding anything in this Agreement to the contrary,
each party shall be entitled to seek injunctive or other equitable relief
without first submitting the matter to mediation or arbitration in
accordance
with the provisions of this Section 14, even if a similar or related matter
has already been referred to mediation or arbitration in accordance with the
terms of this Section 14. Venue for any action permitted to be brought in
court under this Section shall be the appropriate state and federal courts
located in Denton, Denton County, Texas.
15. SEVERABILITY. If a provision of this Agreement is held to be invalid
or otherwise unenforceable, such provision will be interpreted to fulfill its
intended purpose to the maximum extent permitted by applicable law, and
the remaining provisions of this Agreement will continue in full force and
effect.
16. NOTICE. Notices provided under this Agreement must be in writing and
delivered to PES’s or Customer’s principal place of business as forth in the
Purchase Order and/or Quote by: (a) certified mail, return receipt
requested; (b) hand delivery; (c) e-mail with a confirmed read receipt; or
(d) reputable overnight carrier service. In the case of delivery by e-mail,
the notice must be followed by a copy of the notice being delivered by a
means provided in (a), (b) or (d). The notice will be deemed given on the
day the notice is received by the party receiving such notice.
17. DESIGN CHANGES. Except as otherwise agreed expressly in writing,
PES may at any time furnish improvements to a product’s design and/or
construction. PES may also furnish suitable substitutes for materials that
are unobtainable because of priorities or regulations established by
governmental authorities or the non-availability of products from suppliers.
18. MISCELLANEOUS.
a. Merger Clause. In entering into this Agreement, neither party is relying
upon any representations or statements of the other that are not fully
expressed herein or therein; rather each party is relying on its own
judgment and due diligence and expressly disclaims reliance upon any
representations or statement not expressly set forth in this Agreement. In
the event Customer issues User instructions, internal memoranda, or any
other document addressing any of the PES Offerings, it is hereby
specifically agreed and understood that such writing is for the Customer’s
internal purposes only, and that any terms, provisions, and conditions
contained therein shall in no way modify this Agreement.
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b. Assignment & Successors. Neither party may assign, subcontract, delegate
or otherwise transfer this Agreement or any of its rights or obligations
hereunder, nor may it contract with third parties to perform any of its
obligations hereunder except as contemplated in this Agreement, without
the other party’s prior written consent, except that either party may, without
the prior consent of the other, assign all its rights under this Agreement to
(i) a purchaser of all or substantially all of its assets, or (ii) a third party
participating in a merger, acquisition, sale of assets or other corporate
reorganization in which either party is participating (collectively, a
“Change in Control”); provided however, that the non-assigning party is
given notice of the Change in Control and the assignee is not a competitor
of the non-assigning party hereunder.
c. Force Majeure. No delay, failure, or default, other than a failure to pay Fees
when due, will constitute a breach of this Agreement to the extent caused
by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of
nature, strikes or other labor disputes, riots or other acts of civil disorder,
embargoes, or other causes beyond the performing party’s reasonable
control (collectively, “Force Majeure”). In such event, however, the
delayed party must promptly provide the other party notice of the Force
Majeure. The delayed party’s time for performance will be excused for the
duration of the Force Majeure, but if the Force Majeure event lasts longer
than thirty (30) days, the other party may immediately terminate any
unfulfilled Purchase Order. Customer and PES shall not be responsible for
performance under the Contract should it be prevented from performance
by an act of war, order of legal authority, act of God, or other unavoidable
cause not attributable to the fault or negligence of the City of Denton. In
the event of an occurrence under this Section, PES will be excused from
any further performance or observance of the requirements so affected for
as long as such circumstances prevail and PES continues to use
commercially reasonable efforts to recommence performance or
observance whenever and to whatever extent possible without delay. PES
shall immediately notify the City of Denton Procurement Manager by
telephone (to be confirmed in writing within five (5) calendar days of the
inception of such occurrence) and describe at a reasonable level of detail
the circumstances causing the non-performance or delay in performance.
d. Waiver & Breach. Neither party will be deemed to have waived any of its
rights under this Agreement, unless it is an explicit written waiver made by
an authorized representative. No waiver of a breach will constitute a waiver
of any other breach.
e. Survival of Terms. Unless otherwise stated, all of PES’s and Customer’s
respective obligations, representations and warranties under this
Agreement which are not, by the express their terms, fully to be performed
during the Term shall survive the termination of this Agreement. Without
limiting the foregoing, the provisions of Terms and Conditions Sections
2(d), 6, 9, 10, 13, and 14 shall survive any termination of this Agreement.
f. Authority. An individual executing or delivering a Quote or a Purchase
Order hereunder acknowledges that he or she has the authority to act on
behalf of the Customer or PES, as the case may be, and bind such party to
the terms hereof.
g. Signatures. Electronic signatures on any portion of this Agreement (or
copies of signatures sent via electronic means) are the equivalent of
handwritten signatures and are fully enforceable.