1. Contract Formation
SWM's Quotation is subject to withdrawal at any time before acceptance. Customer accepts by signing and returning the Quotation or by sending a purchase order in response to the Quotation. Upon Customer's acceptance, SWM's Quotation and the related terms and conditions referred to in the Quotation (as modified to the extent applicable by any strategic purchasing agreement Customer may have in effect at the time with SWM) shall constitute the entire agreement relating to the products and services covered by the Quotation. The parties agree that they have not relied on any oral or written terms, conditions, representations or warranties outside those expressly stated or incorporated by reference in this agreement in making their decisions to enter into this agreement. No agreement or understanding, oral or written, in any way purporting to modify these terms and conditions or the Quotation, whether contained in Customer's purchase order, shipping release forms, or elsewhere, shall be binding on SWM unless hereafter made in writing and signed by SWM's authorized representative. Customer is hereby notified of SWM's objection to any terms inconsistent with this Quotation and to any other terms proposed by Customer in accepting this Quotation. Neither SWM'ssubsequent lack of objection to any such terms, nor the delivery of the products or services shall constitute an agreement by SWM to any such terms.
SWM will treat patient information as confidential and comply with applicable privacy laws. Each party will treat the terms of this agreement and the other party's written, proprietary business information as confidential if marked as confidential or proprietary. Customer will treat SWM (and SWM's third party vendors') technical information as confidential information whether or not marked as confidential and shall not use or disclose to any third parties any such confidential information except as specifically permitted in this agreement or as required by law with reasonable prior notice to SWM. The receiving party shall have no obligations with respect to any information which (i) is or becomes within the public domain through no act of the receiving party in breach of this agreement, (ii) was in the possession of the receiving party prior to its disclosure or transfer and the receiving party can so prove, (iii) is independently developed by the receiving party and the receiving party can so prove, or (iv) is received from another source without any restriction on use or disclosure.
Notwithstanding any other provision in this agreement to the contrary, SWM shall not have any obligation to Customer hereunder: (a) for damages sought by a third party claimant based on or resulting from the amount of revenues or profits earned or other value obtained by the use of such SWM product, or the amount of use of such SWM product; or (b) for infringement claims based on or resulting from: (i) the use of such SWM product in combination with any computer software, tools, hardware, equipment, or any other materials, or any part thereof, or services, not furnished by SWM or authorized by SWM in its documentation; (ii) the use of such SWM product in a manner or environment, or for any purpose, for which SWM did not design it, or in violation of SWM's instructions on use; or (iii) any modification of such SWM product by Customer or any third party. SWM shall not be responsible for any compromise made by Customer or its agents without SWM's consent. This indemnification obligation is expressly limited to the product purchased by Customer from SWM.
4. Termination; Compliance
All orders are subject to (i) SWM's on-going credit review and approval and (ii) SWM's on-going determination that Customer and the proposed order or related service agreement comply with all applicable laws and regulations, including those relating to workplace safety, FDA matters, Federal Healthcare Program Anti-kickback compliance, export/import control and money laundering prevention. Customer acknowledges that the products are or may be subject to regulation by the FDA and other federal or state agencies. Customer shall not use or permit the products to be used in any manner that does not comply with applicable FDA or other regulations or for any non-medical, entertainment, or amusement purposes. If SWM determines in good faith at any time that there are legal or regulatory compliance and/or material credit issues with the order or related service agreement, SWM may terminate this agreement (including warranty services hereunder) immediately upon written notice to Customer.
5. Force Majeure
Neither party is liable for delays or failures in performance (other than payment obligations) under this agreement due to a cause beyond its reasonable control. In the event of such delay, the time for performance shall be extended as reasonably necessary to enable performance.
6. Cost Reporting
Customer will (i) fully and accurately account for, and report in any applicable cost reports or otherwise fully disclose to government program payers and accurately reflect where and as appropriate to the applicable reimbursement methodology, and (ii) provide information upon request by federal or state agencies concerning, all services and other items, including any discounts, received from SWM under this agreement in compliance with all applicable laws, including the federal Social Security Act and implementing regulations relating to Medicare, Medicaid, and other federal and state health care programs.
7. Customer Responsibilities
In order for SWM to perform its obligations under this agreement (including warranty obligations), Customer agrees to:
- Provide and maintain a suitable, safe and hazard-free location and environment for the SWM products and services in material compliance with any written requirements provided by SWM, perform SWM recommended routine maintenance and operator adjustments, ensure that any non-SWM provided service is performed by, and SWM products are used by, qualified personnel in accordance with applicable user documentation.
- Provide SWM prompt and unencumbered access to the products, network cabling and communication equipment as necessary to perform services. This access includes providing and maintaining connectivity to the products (modem line, internet connection, VPN persistent access, broadband internet connection, or other secure remote access reasonably requested by SWM) to permit SWM to perform support services and meet service levels. SWM may separately charge Customer for a scheduled service call where Customer does not provide such access and SWM is therefore required to schedule an additional service call.
- Provide a secure area reasonably near the products for SWM's proprietary service materials. Customer shall not have any right, title or interest in or to these materials or any license or other right to access, use, or decompile these materials. Customer agrees to use reasonable efforts to protect this SWM property against damage, loss or unauthorized access or use.
- Promptly place service calls in accordance with any reasonable SWM protocols provided to Customer and designate a Customer representative and alternate as SWM's support contacts with the necessary skills to assist SWM in the diagnosis of service problems.
- Establish and maintain security, virus protection, backup and disaster recovery plans for any data, images, software or equipment (SWM's services do not include recovery of lost data or images). This responsibility includes maintaining secure network and network security components, firewalls and security-related hardware or software, preventing unauthorized access to the product and preventing interception of communications between SWM's service center and the product.
- Obtain and maintain all licenses, permits, and other approvals necessary for installation, use, disposal, and recycling (each as applicable) of products provided under this agreement. During the term of this agreement, Customer will take all necessary and legally required precautions for the health and safety of SWM personnel who will perform any service at the Customer site, including, but not limited to, (i) instructing any SWM personnel who will be present at the Customer site about Customer's safety procedures and practices, (ii) providing SWM with current written information identifying all known existing hazardous materials (including wastes) on or near the Customer site that could affect the SWM personnel, (iii) taking all necessary and/or legally required actions to properly store, remove and/or remediate any safety conditions and hazardous materials so that SWM may safely perform its services, and (iv) maintaining a workplace and operating environment in accordance with Federal, State and/or local requirements. SWM shall have no obligation to perform services until Customer has complied with each of the items identified above. Unless expressly provided otherwise, Customer is separately responsible for: (a) the repair, replacement or removal of any disposables, consumables, supplies, accessories or collateral equipment; (b) the provision of or payment for any applicable rigging or facility cost; and (c) any service necessitated by (i) Customer's or its representative's designs, specifications, or instructions, (ii) anything external to the products, including any causes or events beyond SWM's reasonable control, (iii) product misuse, (iv) combining any component of the products with any incompatible equipment or software, or (v) Customer's relocation, additions, or changes to the products, unless SWM has consented in writing to such relocations, additions or changes.
8. Terms of Payment
The payment terms for the product(s) and/or service(s) are stated in the SWM Quotation or additional terms and conditions, as applicable. For any products requiring final assembly or installation by SWM, if such assembly or installation is delayed after delivery of the products for any reason for which Customer is responsible, SWM may, at its option, bill Customer for and Customer will pay SWM any remaining payments due under this agreement. If Customer has a good faith dispute regarding payment for a particular product [or subsystem thereof] or service, such dispute shall not entitle Customer to withhold payment for any other product (or subsystem thereof] or service purchased from SWM. SWM may revoke credit extended to Customer because of Customer's failure to pay for any products or services when due or for any other reason deemed good or sufficient by SWM, and in such event all subsequent shipments and services shall be paid for prior to receipt. Customer grants SWM a purchase money security interest in all items of equipment listed in the SWM Quotation until full payment is received, and Customer agrees to perform all acts and execute all documents as may be necessary to perfect SWM's security interest. Prices for upgrades and revisions assume that Customer returns the replaced component and transfers title to SWM at no charge to SWM.
9. Late Payment
Failure to make timely payment is a material breach of this agreement, for which (in addition to other available remedies) SWM may suspend performance under any or all SWM agreements until all past due amounts are brought current. If SWM so suspends, SWM will not be responsible for the completion of planned maintenance due to be performed during the suspension period and any product downtime will not be included in the calculation of any uptime commitment. Interest shall accrue on past-due amounts at a rate equal to the lesser of 1.5% per month or the maximum rate permitted by applicable law. Customer will reimburse SWM for reasonable costs (including attorneys' fees) relating to collection of past due amounts. Any credits that may be due to Customer under an agreement may be applied first to any outstanding balance. If, after product delivery, Customer does not make any payments for the products within 45 days after such payments are due, SWM may, upon 10 days prior written notice to Customer, either (a) enter upon Customer's site and remove the products or (b) temporarily disable the products so that they are not operational.
Prices do not include soles, use, gross receipts, excise, valued-added, services, or any similar transaction or consumption taxes ("Taxes''). Customer acknowledges and agrees it shall be responsible for the payment of any such applicable Taxes to SWM unless it otherwise timely provides SWM with a valid exemption certificate or direct pay permit In the event SWM is assessed Taxes, interest and penalty by any taxing authority, Customer agrees to reimburse SWM for any such Taxes, including any interest or penalty assessed thereon.
11. Customer Training
Unless otherwise stated in the catalog description, no training for product(s) and/or service(s) will be provided by SWM. Customer hereby acknowledges that there are certain product(s) and/or service(s) for which SWM is not clinically capable of providing training. If specifically included and stated in the catalog description, training must be completed within 3 months after (i) the date of product delivery for training purchased with products and (ii) the start date for services for training purchased with services. If training is not completed within the applicable time period, SWM's obligation to provide the training will expire without refund.
12. Assignment; Use of Subcontractors
Neither party may assign any of its rights or obligations under this agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, that either party may transfer and assign this agreement without the other party's consent to any person or entity (except to a SWM competitor) that is an affiliate of such party or that acquires substantially all of the stock or assets of such party's applicable business if any such assignees agree, in writing, to be bound by the terms of this agreement. Subject to such limitation, this agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. SWM may hire subcontractors to perform work under this agreement; provided, however, that SWM will at all times remain responsible for the performance of its obligations and duties under this agreement.
13. Medical Diagnosis and Treatment
Customer hereby acknowledges and agrees that all clinical and medical treatment and diagnostic decisions are the responsibility of Customer and its professional healthcare providers.
14. Amendment; Waiver; Survival
This agreement may be amended only in writing signed by both parties. Any failure to enforce any provision of this agreement is not a waiver of that provision or of either party's right to later enforce each and every provision. The terms of this agreement that by their nature are intended to survive its expiration (such as the confidentiality provisions included herein) will continue in full force and effect after its expiration.
15. Governing Law; Disputes; Limitation of Liability The law of the State
of Oklahoma will govern any dispute between the parties. Other than collection matters and actions seeking injunctive relief in a court of competent jurisdiction to prevent or cease a violation of intellectual property rights related to the products or services, disputes arising under or relating to this agreement will be submitted to the American Arbitration Association ("AAA") office located closest to the SWM corporate headquarters for binding arbitration in accordance with the AAA's then-current Commercial Arbitration Rules. The cost of the arbitration, including the fees and expenses of the arbitrator, will be shared equally, with each party paying its own attorneys' fees. The arbitrator will have the authority to award damages only to the extent otherwise available under this agreement. SWM'S (AND ITS REPRESENTATIVES') LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED: (A) FOR PRODUCTS OR SERVICES OTHER THAN SERVICES UNDER AN ANNUAL SERVICE CONTRACT, THE PRICE FOR THE PRODUCT OR SERVICE THAT IS THE BASIS FOR THE CLAIM; OR (B) FOR ANNUAL SERVICE CONTRACTS, THE ANNUAL CONTRACT PRICE FOR THE SERVICE THAT IS THE BASIS FOR THE CLAIM. NEITHER SWM (NOR THEIR RESPECTIVE REPRESENTATIVES) SHALL BE LIABLE TO THE CUSTOMER UNDER THIS AGREEMENT (OR OTHERWISE IN CONNECTION WITH THE PRODUCTS AND SERVICES) FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF PROFITS, REVENUE, TIME, OPPORTUNITY OR DATA, WHETHER IN AN ACTION IN CONTRACT, TORT, PRODUCT LIABILITY, STATUTE, EQUITY OR OTHERWISE. The limitation of liability and exclusion of damages shall apply even if the limited remedies fail of their essential purpose.
If Customer is acquiring use of products through an equipment lease (a "Lease") with an equipment lessor (a "Lessor"), certain provisions of this agreement will be modified as follows: (i) payment (the applicable Lessor or Customer, as agreed by the parties, will pay SWM the purchase price for the products per the terms of the applicable SWM Quotation, including any applicable SWM additional terms and conditions, or such other terms and conditions as shall be agreed to in writing by SWM and the Lessor); (ii) title transfer (SWM will convey title to the equipment portion of the products to the applicable Lessor per the terms of the applicable SWM Quotation, including any applicable SWM additional terms and conditions, or such other terms and conditions as shall be agreed to in writing by SWM and the Lessor); (iii) acceptance (as between Customer and the applicable Lessor, the terms of product acceptance shall be governed by the applicable Lease and other documentation entered into between Customer and such Lessor; as between SWM and such Lessor, the terms of product acceptance shall be governed by the terms of the applicable SWM Quotation, including any applicable SWM additional terms and conditions, or such other terms and conditions as may be agreed to in writing by SWM); (iv) warranties (subject to the last sentence of this section, all warranties hereunder shall extend to and be enforceable by Customer); and (v) software licenses (Customer shall be an authorized end-user under any software licenses under this agreement in connection with the products, subject to the applicable license terms and conditions). Notwithstanding this section, if the applicable Lessor does not comply with the terms of this agreement relating to items (i) and (ii) above, Customer continues to be responsible for the payment and acceptance obligations hereunder. As between the applicable Lessor and Customer, the applicable Lease terms may modify the manner in which warranties hereunder are enforceable by Customer, provided that SWM shall not be bound by any Lease terms that would modify SWM's warranty obligations unless SWM has agreed in writing to such modifications.
17. Independent Contractor
SWM and Customer are independent contractors and nothing contained in this agreement is intended nor shall it be construed as creating a fiduciary relationship, partnership, joint venture or agency relationship between SWM and Customer, nor is anything contained in this agreement intended to be construed as creating or requiring any ongoing or continuing relationship or commitment between SWM and Customer, except as otherwise agreed in writing by the parties.
The provisions of this agreement are severable from each other. If any provision of this agreement is held to be invalid or unenforceable, it shall be revised to reflect as closely as possible its originally intended meaning, and the validity or enforceability of any other provisions in this agreement will not be affected.
The following provisions shall apply only to the purchase or licensing of products:
When feasible, SWM reserves the right to make delivery in installments. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delivery dates are approximate.
19.2 Transportation, Title and Risk of Loss
Unless otherwise indicated in the SWM Quotation, shipping terms are FOB Destination. Title and risk of loss to equipment passes to Customer upon delivery to Customer's designated delivery location.
SWM's installation services provided or identified in its Quotation will be performed in accordance with applicable SWM installation guides and project plans and otherwise subject to the following additional provisions. Customer agrees to review any applicable installation guides and project plans and perform its obligations set forth in those materials.
- Customer will prepare the location for the installation consistent with SWM's written specifications and applicable law. Customer will install necessary system cable and assemble any necessary equipment or hardware not provided by SWM, unless agreed otherwise in writing by the parties. For products that will be operated on or in connection with Customer supplied hardware or software, Customer is responsible for ensuring that its hardware and software conform with SWM’s minimum hardware and software requirements as made available to Customer. Unless SWM has agreed in writing to maintain responsibility for an applicable service, Customer will be responsible for enabling the connectivity and interoperability between its Customer supplied hardware or software or other systems or devices and the SWM product, including, without limitation, procuring and installing any modifications, interfaces or upgrades consistent with SWM written specifications.
- Unless Customer has elected to purchase network preparation and certification services from SWM as set forth in the SWM Quotation, Customer is solely responsible for ensuring that Customer's network is adequate for the proper operation and performance of the products and that it otherwise meets SWM's network configuration requirements (including requirements for preparation of Customer's site, remote interconnections and Internet Protocol address assignments) provided by SWM to Customer.
- If local labor conditions make it impractical to, or SWM is directed not to use SWM's regular employees for the installation, all work will be performed by Customer's laborers or outside labor at Customer's expense; provided that SWM will, at Customer's request, furnish supervision for proper installation.
- SWM will provide Customer with the product(s) in the configuration as listed in the Quotation. The configuration is based upon information furnished to SWM by Customer. Customer is responsible for modifications, if any, to the configuration due to inaccuracies or incompleteness of the information furnished to SWM by Customer, changes in Customer's needs or requirements, or for other reasons attributable to Customer.
- For products that SWM is obligated to install under the terms of this agreement, if SWM delivers the product but fails to perform its installation obligations, then in such event Customer shall nevertheless be obligated to pay SWM on amount equal to the product purchase price less the fair market value of the applicable installation services, taking into account the type of product and level of installation required ("Installation Service FMV"). An independent third party shall determine the Installation Service FMV pursuant to the dispute resolution provisions of Section 15. Subject to the terms of Section 15 and notwithstanding any other provision of this agreement to the contrary, the deduction of the Installation Service FMV shall be Customer's sole and exclusive remedy (and SWM's sole and exclusive liability) in the event SWM fails to perform its installation obligations under this agreement.
Unless expressly provided otherwise in this agreement or in any applicable SWM installation guide or standard project plan, Customer shall be deemed to have accepted a product delivered by SWM under this agreement on he earlier of: (i) if SWM installs the product, 1 day after SWM notifies Customer that it has completed assembly and the product is operating substantially in accordance with SWM's published performance specifications; (ii) if SWM does not install the product, 1 day after delivery of the product to Customer; or (iii) the date Customer first uses the product for patient use.
19.5 Cancellation and Payments
If Customer cancels an order prior to shipping without SWM's prior written consent within 90 days before the scheduled delivery date, Customer will pay a cancellation charge of 50% of the price of the products ordered. SWM will retain as a credit any payments received up to the amount of the cancellation charge. If Customer cancels an order for products requiring site evaluation services by SWM or its representatives, Customer will also pay SWM reasonable charges for such services performed prior to cancellation. If applicable for the order, Customer will pay all progress payments (other than the final payment) prior to final product calibration, and SWM may, at its option, delay final calibration until required progress payments are received.
19.6 Order Changes
SWM will accept order changes up to 6 weeks prior to scheduled delivery or, for orders placed less than 6 weeks before the delivery date, up to 2 business days after its receipt of the order. Order changes must be submitted in writing by the Customer. SWM reserves the right to refuse late change requests pending product availability. Product delivery may be delayed by change requests.
19.7 Returns and Payments
Customer shall not have any right to return products for a refund after delivery except for products shipped in error that are different from the products listed.
The following warranty provisions shall apply only to the purchase of products:
20.1 Equipment Warranty
Except as indicated otherwise below, SWM warrants for 90 days from the Warranty Commencement Date (as defined below) that (i) the equipment will be free from defects in title, material and workmanship under normal use and service and (ii) except for equipment manufactured in compliance with Customer's designs or specifications, the equipment will perform substantially in accordance with SWM's provided technical specifications for the equipment (as such specifications exist on the date the equipment is shipped) (the "Equipment Specifications"). THIS WARRANTY COVERS PARTS ONLY, WITH A PARTS EXCHANGE AGREEMENT, EXCLUDES TUBE AND GLASSWARE, AND IS AVAILABLE ONLY TO END-USERS THAT PURCHASE THE EQUIPMENT FROM SWM OR ITS AUTHORIZED DISTRIBUTORS. Customers purchasing through an authorized distributor must contact SWM promptly following such purchase to enable this warranty.
20.2 Software Warranty
Unless stated in writing and authorized by both parties, SWM provides no warranty for or updates to product software.
20.3 Supplies and Accessories
SWM provides no warranty for supplies, accessories, and batteries that are shipped with Warranted Products except for instances of out-of-the-box failures.
20.4 Warrant Commencement
Unless expressly provided otherwise in this warranty statement or the applicable SWM quotation, the warranty period begins (the "Warranty Commencement Date") on the earlier of: (i) if SWM installs the product, 1 day after SWM notifies Customer that it has completed assembly and the product is operating substantially in accordance with SWM's published performance specifications; (ii) if SWM does not install the product, 1 day after delivery of the product to Customer; (iii) the date Customer first uses the product for patient use; or (iv) if SWM is contractually required to install the product, the 30th day following shipment to the end-user Customer if installation is delayed for reasons beyond SWM's reasonable control. The warranty period for any Warranted Product or component furnished to correct a warranty failure will be the unexpired term of the warranty applicable to the repaired or replaced Warranted Product.
If Customer promptly notifies SWM of Customer's warranty claim during the warranty period and makes the Warranted Product available for service, SWM will, at its option, either repair, adjust or replace (with new or exchange replacement parts) the non-conforming Warranted Product or components of the Warranted Product. The foregoing remedies are Customer's sole and exclusive remedies (and SWM's sole and exclusive liability) for warranty claims. These exclusive remedies shall not have failed of their essential purpose (as that term is used in the Uniform Commercial Code) as long as SWM remains willing to repair or replace defective warranted products for no charge, as applicable, within a commercially reasonable time after being notified of Customer's warranty claim. NO OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND DATA ACCURACY, WILL APPLY. SWM may use refurbished parts in new products as long as it uses the same quality control procedures and warranties as for new products. Any part for which SWM has supplied a replacement shall become SWM property.
SWM shall not have any obligation to Customer hereunder if the warranty claim results from or arises out of: (i) the use of the Warranted Product in combination with any software, tools, hardware, equipment, supplies, accessories or any other materials or services not furnished by SWM or recommended in writing by SWM; (ii) the use of the Warranted Product in a manner or environment, for any purpose, for which SWM did not design it, or in violation of SWM's recommendations or instructions on use; or (iii) any alteration, modification or enhancement of the Warranted Product by Customer or any third party not authorized or approved in writing by SWM. In addition, this warranty does not cover the Warranted Product to the extent it is used in any country other than the country to which SWM ships the Warranted Product (unless SWM expressly agrees other wise in writing). In addition, these warranties do not cover: (i) any defect or deficiency (including failure to conform to Equipment Specifications and/or Documentation, as applicable) that results, in whole or in part, from any improper storage or handling, failure to maintain the Warranted Products in the manner described in any applicable instructions or specifications, inadequate back-up or virus protection or any cause external to the Warranted Products or beyond SWM's reasonable control, including, but not limited to, power failure and failure to keep Customer's site clean and free of dust, sand and other particles or debris; (ii) the payment or reimbursement of any facility costs arising from repair or replacement of the Warranted Products; (iii) any adjustment, such as alignment, calibration, or other normal preventative maintenance required of Customer; (iv) expendable supply items; and (v) stockpiling of replacement parts.