HomeMy WebLinkAbout2010-059
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RESOLUTION NO. 2010-59
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT
AND ISSUANCE OF A PURCHASE ORDER TO ZOLL MEDICAL
CORPORATION FOR FOUR (4) CARDIAC MONITOR/DEFIBRILLATORS WITH
ACCESSORIES.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. That Zoll Medical Corporation has offered a total negotiated purchase
price of$83,181.99, for the required four (4) cardiac monitor/defibrillators with accessories,
attached hereto and incorporated herein marked Exhibit "A". Pursuant to this determination
and the San Bernardino Municipal Code Section 3.04.010B(3), the Director of Finance or
her designee is hereby authorized and directed to issue a Purchase Order to Zoll Medical
Corporation in the amount of $83,181.99 with a contingency amount of $831.82, for a total
not to exceed of $84,013.81 which will facilitate the procurement of the four (4) cardiac
monitor/defibrillators with accessories; and
SECTION2. The City Manager is hereby authorized and directed to execute on
behalf of the City, Purchase Agreement with Zoll Medical Corporation, a copy of which is
attached hereto, marked Attachment" A", and incorporated herein by reference as fully as
though set forth at length; and
SECTION 3. The authorization to execute the above reference Agreement and
Purchase Order is rescinded if not fully executed/issued within sixty (60) days of the
passage of this resolution.
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2010-59
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT
AND ISSUANCE OF A PURCHASE ORDER TO ZOLL MEDICAL
CORPORATION FOR FOUR (4) CARDIAC MONITOR/DEFIBRILLATORS WITH
ACCESSORIES.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
and Common Council of the City of San Bernardino at a j oint regular meeting thereof,
held on the 5th
day of April
,2010, by the following vote, to wit:
COUNCIL MEMBERS:
AYES
NAYS
ABSTAIN ABSENT
MARQUEZ
x
DESJARDINS
x
BRINKER
x
SHORETT
x
KELLEY
x
JOHNSON
x
MCCAMMACK
x
u~1t. ~
RacherG. Clark, City Clerk
City of San Bernardino
The foregoing Resolution is hereby approved this tn; day of April-, 2010.
at'-- ..
Approved as to form:
F. PENMAN, Cit~rney
:,(\....A.\.\~bA.d
2
2010-59
ATTACHMENT "A".
PURCHASE AGREEMENT
This Purchase Agreement is entered into this 5th day of April , 2010 ,
by and between Zoll Medical Corporation ("Vendor") and the City of San Bernardino ("City"
or "San Bernardino").
WITNESSETH:
WHEREAS, the Mayor and Common Council has determined that it is advantageous
and in the best interest of the City to contract for the purchase of cardiac monitor/defibrillators;
and
WHEREAS, the City of San Bernardino accepts the quote from available Vendor for
the cardiac monitorldefibrillators with accessories.
NOW, THEREFORE, the parties hereto agree as follows:
1. SCOPE OF SERVICES.
For the remuneration stipulated, San Bernardino hereby engages Vendor to provide the
required cardiac monitorldefibrillators with accessories per their Quote #45903 V:5 attached
hereto and incorporated herein as Exhibit "A".
2. COMPENSATION AND EXPENSES.
a. For the products and/or services delineated above, the City, upon presentation of an
invoice, shall pay the Vendor up to the amount of$83,181.99 forfour (4) cardiac
monitorldefibrillators with accessories.
b. No other expenditures made by Vendor shall be reimbursed by City.
3. TERM; TERMINATION.
This purchase shall be completed within ninety (90) days after receipt of accepted
purchase order.
This Agreement may be terminated at any time by thirty (30) days' written notice by
either party. The terms of this Agreement shall remain in force unless mutually amended.
4. WARRANTY.
Vendor expressly warrants that all products and services supplied to City by Vendor
under this Agreement shall conform to the specifications, drawings or other description upon
which this PURCHASE is based, shall be fit and sufficient for the purpose intended,
merchantable, of good material and workmanship, free from defects and free and clear of all
liens or encumbrances. Inspection, testing, acceptance or use of the goods by the City shall not
affect Vendor's obligations under this warranty, and such warranty shall survive inspection,
testing, acceptance and use. Vendor agrees to replace or correct promptly defects of any goods
or services not conforming to the foregoing warranty without expense to the City, when
notified of such non-conformity by City. If Vendor fails to correct the defects in or replace
non-conforming goods or services promptly, City may, after reasonable notice to Vendor, make
such corrections or effect cover, or cure, at Vendor's expense. "Reasonable notice" for
purposes of this section shall not be deemed to require more than 60 calendars days notice
1
2010-59
before commencement of efforts by the City to effect cover or a cure except upon written
agreement ofthe Parties.
5. INDEMNITY.
Vendor agrees to and shall indemnify and hold the City, its elected officials, employees,
agents or representatives, free and harmless from all claims, actions, damages and liabilities of
any kind and nature arising from bodily injury, including death, or property damage, based or
asserted upon any actual or alleged act or omission of Vendor, its employees, agents, or
subcontractors, relating to or in any way connected with the accomplishment of the work or
performance of services under this Agreement, unless the bodily injury or property damage was
actually caused by the sole negligence of the City, its elected officials, employees, agents or
representatives. As part of the foregoing indemnity, Vendor agrees to protect and defend at its
own expense, including attorney's fees, the City, its elected officials, employees, agents or
representatives from any and all legal actions based upon such actual or alleged acts or
omissions. Vendor hereby waives any and all rights to any types of express or implied
indemnity against the City, its elected officials, employees, agents or representatives, with
respect to third party claims against the Vendor relating to or in any way connected with the
accomplishment of the work or performance of services under this Agreement.
6. INSURANCE.
While not restricting or limiting the foregoing, during the term of this Agreement,
Vendor shall maintain in effect policies of comprehensive public, general and automobile
liability insurance, in the amount of$I,OOO,OOO.OO combined single limit, and shall file copies
of said policies with the City's Risk Manager prior to undertaking any work under this
Agreement. City shall be set forth as an additional named insured in each policy of insurance
provided hereunder. The Certificate of Insurance furnished to the City shall require the insurer
to notify City of any change or termination in the policy.
7. NON-DISCRIMINATION.
In the performance of this Agreement and in the hiring and recruitment of employees,
Vendor shall not engage in, nor permit its officers, employees or agents to engage in,
discrimination in employment of persons because oftheir race, religion, color, national origin,
ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or
sexual orientation, or any other status protected by law.
8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS.
Vendor warrants that it possesses or shall obtain, and maintain a business registration
certificate as required under Chapter 5 of the Municipal Code, and any other license, permits,
qualifications, insurance and approval of whatever nature that are legally required of Vendor to
practice its business or profession.
9. NOTICES.
Any notices to be given pursuant to this Agreement shall be deposited with the United
States Postal Service, postage prepaid and addressed as follows:
2
2010-59
TO THE City:
Fire Chief Michael Conrad and
EMS Coordinator Bernie Horak
200 East Third Street
San Bernardino, CA 92410
Telephone: (909) 384-5286
TO THE Vendor:
Zoll Medical Corporation
Attn: Bryan Pank, Senior Account Executive
269 Mill Road
Chelmsford, Massachusetts 01824-4105
Telephone: 1-800-242-9150 extension 9218
10. ATTORNEYS' FEES.
In the event that litigation is brought by any party in connection with this Agreement,
the prevailing party shall be entitled to recover from the opposing party all costs and expenses,
including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of
its rights or remedies hereunder or the enforcement of any of the terms, conditions or
provisions hereof. The costs, salary and expenses of the City Attorney and members of his
office in enforcing this Agreement on behalf of the City shall be considered as "attorneys' fees"
for the purposes of this paragraph.
11. ASSIGNMENT.
Vendor shall not voluntarily or by operation of law assign, transfer, sublet or encumber
all or any part of the Vendor's interest in this Agreement without City's prior written consent.
Any attempted assignment, transfer, subletting or encumbrance shall be void and shall
constitute a breach of this Agreement and cause for the termination of this Agreement.
Regardless of City's consent, no subletting or assignment shall release Vendor of Vendor's
obligation to perform all other obligations to be performed by Vendor hereunder for the term of
this Agreement.
12. VENUE.
The parties hereto agree that all actions or proceedings arising in connection with this
Agreement shall be tried and litigated either in the State courts located in the County of San
Bernardino, State of California or the U.S. District Court for the Central District of California,
Riverside Division. The aforementioned choice of venue is intended by the parties to be
mandatory and not permissive in nature.
13. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of California.
14. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding on and inure to the benefit of the parties to this
Agreement and their respective heirs, representatives, successors, and assigns.
3
"Zoll Medical Corporation-San Bernardino Vendor Purchase Agreement"
15. HEADINGS.
The subject headings of the sections of this Agreement are included for the purposes of
convenience only and shall not affect the construction or the interpretation of any of its
provIsIOns.
2010-59
16. SEVERABILITY.
If any provision of this Agreement is determined by a court of competent jurisdiction to
be invalid or unenforceable for any reason, such determination shall not affect the validity or
enforceability of the remaining terms and provisions hereof or of the offending provision in any
other circumstance, and the remaining provisions of this Agreement shall remain in full force
and effect.
17. REMEDIES; WAIVER.
All remedies available to either party for one or more breaches by the other party are
and shall be deemed cumulative and may be exercised separately or concurrently without
waiver of any other remedies. The failure of either party to act in the event of a breach of this
Agreement by the other shall not be deemed a waiver of such breach or a waiver of future
breaches, unless such waiver shall be in writing and signed by the party against whom
enforcement is sought.
18. ENTIRE AGREEMENT; MODIFICATION.
This Agreement constitutes the entire agreement and the understanding between the
parties, and supercedes any prior agreements and understandings relating to the subject manner
of this Agreement. This Agreement may be modified or amended only by a written instrument
executed by all parties to this Agreement.
IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day
and date set forth below.
Dated: '1-l2.., ,2010
VENDOR
By: (Z~I-~ <UA P'lv1;~
Its: ~lt ~\P.-~ Sr, At'tev-f 01/<..
Dated~010
By:
Approved as to Form:
James F. Penman, City Attorn
(cud
4
ZOLLo
2010-59
Ex.hifU,t "II"
ZOLL Medical Corporation'
Worldwide HeadQuarters
269 Mill Rd
Chelmsford, Massachusetts 01824-4105
(978) 421-9655 Main
(800) 348-9011
(978) 421-0015 Telefax
A"".,..IAtI"'~ T"v."
,.,.- . ---.
TO: San Bernardino City Fire Department
" . 1- _ 111-
lleUl!.1
200 East Third Street
San Bernardino, CA 92410
Altn: Bernie Horak
EMS Captain
email: horakbetlllci.san-bernardino.ca.us
Tel: 909-693-6491
QUOTATION 45903 V:5
DATE: March 10,2010
TERMS: Net 30 Days
FOB: Shipping Point
Freight: Prepay and Add
ITEM MODEL NUMBER DESCRIPTION QTY, UNIT PRICE DISC PRICE TOTAL PRICE
1 50201330020124013 E Series ACLS Manual Defibrillator with Advisory 4 $22.325,00 $17.860,00 $71,440.00 .
capability, 12-lead with 1-step patient cable, Sp02 (
comes with EtC02 port) with reusable sensor and 4 I
cable, Integrated Bluetooth, and Noninvasive Pacing
Includes AC Power, Printer, Protocol Assist Code Markers
GPS Clock Auto Sync. TriMode Display. 3-lead ECG
patient cable, universal cable, ready for one (1) SurePower
TM Rechargeable Lithium Ion Battery with built in AC
Charger ordered separately, RS232 data transfer port,
RU9ged SoftPackCarry Case. AC power cord, 12" AC
power extension cord, one package of recorder paper, two
PC Card slots, Operator's Manual, and standard one (1)
year warranty for EMS use.
1a 8000-1007-01 1 Step Patient Cable for 12-lead ECG with limb leads 4 $315.00 Included Included
and v leads (10 ft)
1b 8000-0294 Sp02 lNCS Adult Reusable Sensor (1 each) 4 $295.00 $236,00 $944.00 .
1c 8000-0330 Sp02 Rainbow Resuable Patient Cable - connects to 4 $295.00 $236,00 $944,00 .
LNCS single use and resuable sensors (4 Il)
2 8000-0312 E Series Only CAPNO 5 Mainstream C02 Sensor and 3 $4,77500 $3,82000 $11,460.00 .
Cable
3 8050-0030-01 SUrePower~ Charging Station 2 $2.275,00 $1.820,00 $3,640,00 .
This quote is made subject to lOLL's standard commercial terms and conditions (lOLL T's + C's) which Paoe 1 Subtotal $88,428.00
accompany this quote. Any purchase order (P.O.) Issued In response to this quotation will be deemed to
incorporate lOLL T's + C's. Any modification of the lOLL T's + C's must be set forth or referenced in the
customer's P.O. No commercial terms or conditions shall apply to the sale of goods or services governed by
this quote and the customer's P.O unless set forth in or referenced by either document
1. DELIVERY WILL BE MADE 60-90 DAYS AFTER RECEIPT OF ACCEPTED PURCHASE ORDER
2, PRICES WILL BE F,O.B, SHIPPING POINT.
3, WARRANTY PERIOD (See above AND Attachment).
4. PRICES QUOTED ARE VALID FOR AN ORDER ON OR BEFORE MAY 1. 2010.
5. APPLICABLE TAX & FREIGHT CHARGES & ORDER PROCESSING FEE ADDITIONAL
6, ALL PURCHASE ORDERS ARE SUBJECT TO CREDIT APPROVAL BEFORE ACCEPTANCE BY ZOLL
7, PURCHASE ORDERS TO BE FAXED TO ZOll CUSTOMER SERVICE AT 978-421-0015.
8. ALL DISCOUNTS OFF LIST PRICE ARE CONTINGENT UPON PAYMENT WITHIN AGREED UPON TERMS,
9, PLEASE PROVIDE A COPY OF OR REFERENCE TO YOUR QUOTATION NUMBER WITH PURCHASE
Page 1
Bryan Pank
Sr. Account Executive
800-242-9150, x9218
ZOLLo
2010-59
ZOLL Medical Corporation'
Worldwide HeadQuarters
269 Mill Rd
Chelmsford, Massachusetts 01824-4105
(978) 421-9655 Main
(800) 348-9011
(978) 421-0015 Telefax
----,
\" II III
Ready
ArIv......... ......".".., T....V.-
."r-
TO: San Bernardino City Fire Department
200 East Third Street
San Bernardino, CA 92410
Attn: Bernie Horak
EMS Captain
QUOTATION 45903 V:5
DATE: March 10,2010
email: horakbetlilci.san-bernardino.ca.us
Tel: 909-693-6491
TERMS: Net 30 Days
FOB: Shipping Point
Freight: Prepay and Add
ITEM MODEL NUMBER DESCRIPTION QTY. UNIT PRICE DISC PRICE TOTAL PRICE
4 8019-0535-01 SurePower" Rechargeable Lithium Ion Battery Pack 16 $475.00 $380.00 $6.080.00 .
5 8000-0370 CPR Connector 4 $265.00 $212.00 $848.00 .
6 8778- 0107 4 Year Extended Warranty (at time of equipment sale) 4 $3.550.00 $3.550.00 $14.200.00
7 8050-9901 All ZOLL Chargers Trade-in 4 ($100.00) ($400.00) ..
8 4001- 991 0 ZOlL M Series Biphasic wlPacing + 2 options Trade-In 4 ($3.500.00) ($14,000.00) ..
9 DI SC ZOLL Loyalty Discount 1 $0.00 ($18,100.00) ($18,100.00)
Estimated CA Sales Tax@ 9.0% ..... $5,970.99
Estimated Shipping and Handling..... $155.00
(does not reflect actual charges)
"*Trade-In Value valid if all units purchased are in good
operational and cosmetic condition, and include all
standard accessories such as paddles, cables, etc.
Customer assumes responsibility for shipping trade-in
equipment to ZOLL Chelmsford within 60 days of receipt of
new equipment. Customer agrees to pay cash value for
trade-in equipment not shipped to ZOLL on a timely basis.
This quote is made subject to ZOLL's standard commercial terms and conditions (ZOLL T's + C's) which Paae 2 Subtotal $83,181.99
accom an this quote. An urchase order P.O.) issued In res onse to this uotation will be deemed to
p y yp ( p q
incorporate ZOLL T's + C's. Any modification of the ZOLL T's + C's must be set forth or referenced in the
customer's P.O. No commercial terms or conditions shall apply to the sale of goods or services governed by
this quote and the customer's P.O unless set forth in or referenced by either document
1. DELIVERY WILL BE MADE 60-90 DAYS AFTER RECEIPT OF ACCEPTED PURCHASE ORDER
2. PRICES WiLL BE F.O.B. SHIPPING POINT.
3. WARRANTY PERiOD (See above AND Attachment).
4. PRICES QUOTED ARE VALID FOR AN ORDER ON OR BEFORE MAY 1. 2010.
5. APPLICABLE TAX & FREIGHT CHARGES & ORDER PROCESSING FEE ADDITIONAL.
6. ALL PURCHASE ORDERS ARE SUBJECT TO CREDIT APPROVAL BEFORE ACCEPTANCE BY ZOLL.
7. PURCHASE ORDERS TO BE FAXED TO ZOLL CUSTOMER SERVICE AT 978-421-0015.
8. ALL DISCOUNTS OFF LIST PRiCE ARE CONTINGENT UPON PAYMENT WITHIN AGREED UPON TERMS.
9. PLEASE PROVIDE A COPY OF OR REFERENCE TO YOUR QUOTATION NUMBER WITH PURCHASE
PBgB 2
Bryan Pank
Sr. Account Executive
800-242-9150. x9218
ZOLLo
2010-59
ZOLL Medical Corporation'
Worldwide HeadQuarters
269 Mill Rd
Chelmsford, Massachusetts 01824-4105
(978) 421-9655 Main
(800) 348-9011
(978) 421-0015 Telefax
--,
, I'll 1111-
UL'a/~1
Adv--.. .............. ~1"...
,-
TO: San Bernardino City Fire Department
200 East Third Street
San Bernardino, CA 92410
Attn: Bernie Horak
EMS Captain
QUOTATION 45903 V:5
email: horakbe@ci.san-bernardino.ca.us
Tel: 909-693-6491
DATE: March 10. 2010
TERMS: Net 30 Days
ITEM MODEL NUMBER DESCRIPTION QTY. UNIT PRICE DISC PRICE TOTAL PRICE
*Reflects Discount Pricing and No Charge
Items Valid with a Purchase Order Received by
ZOLL on or before May 1 2010.
This quote is made subject to ZOlL's standard commercial terms and conditions (lOLL r's + C's) which TOTAL $83,181.99
accompany this quote. Any purchase order (P.O.) issued in response to this quotation will be deemed to
FOB: Shippin9 Point
Freight: Prepay and Add
incorporate ZOlL r's + C's. Any modification of the ZOlL T's + C's must be set forth or referenced in the
customer's P.O. No commercial tenns or conditions shall apply to the sale of goods or services governed by
this quote and the customer's P.O unless set forth In or referenced by either document
1. DELIVERY WILL BE MADE 60-90 DAYS AFTER RECEIPT OF ACCEPTED PURCHASE ORDER.
2. PRICES WILL BE F.O.B. SHIPPING POINT.
3. WARRANTY PERIOD (See above AND Attachment).
4. PRICES QUOTED ARE VALID FOR AN ORDER ON OR BEFORE MAY 1. 2010.
5. APPLICABLE TAX & FREIGHT CHARGES & ORDER PROCESSING FEE ADDITIONAL.
6. All PURCHASE ORDERS ARE SUBJECT TO CREDIT APPROVAL BEFORE ACCEPTANCE BY lOll.
7. PURCHASE ORDERS TO BE FAXED TO ZOLl CUSTOMER SERVICE AT 978-421-0015.
8. All DISCOUNTS OFF LIST PRICE ARE CONTINGENT UPON PAYMENT WITHIN AGREED UPON TERMS.
9. PLEASE PROVIDE A COpy OF OR REFERENCE TO YOUR QUOTATION NUMBER WITH PURCHASE
Page 3
Bryan Pank
Sr. Account Executive
800-242-9150,x9218
ZOLL QUOTATION GENERAL TERMS & CONDITIONS
1. ACCEPTANCE. This ,Quotation constitutes an offer by ZOlL Medical Corporation to sell to the
Customer th,e equipment (including a license to use certain software) listed in this Quotation and
described in the specifications either attached to or referred to in this Quotation (hereinafter referred 10
as Equipment). Any acceptance of such offer is expressly limited 10 the lenns of this Quotation, including
these General Terms and Conditions. Acceptance shall be so limited to this Quotation notwithstanding (I)
any conflicting written or oral representations made by ZOlL Medical Corporation or any agenl or
employee of ZOll Medical Corporation or (ii) receipt or acknowledgement by ZOlL Medical Corporation
of any purchase order, specificatiOl'l, or other document issued by the Customer. Any such document
shall be wholly inapplicable to any sale made pursuant to this Quotation, and shall not be binding in any
way on lOll Medical Corporation.
Acceptance of this Quotation by the Customer shall create an agreement between lOll Medical
Corporation and the Customer (hereinafter referred to as the "Contract" the terms and conditions of
wtlich are expressly limited to the provisions of this Quotation including these Terms and Conditions, No
waiver change or modif~tion of any of the provisions of this Quotation or the Contract shall be binding
on lOll Medical Corporation unless such waiver, change or modification (i) is made in writing (ii)
expressly states that it is a waiver, change or modification of this Quotation or the Contract and (Iii) is
signed by an authorized representative of lOll Medical Corporation.
2. DELIVERY AND RISK OF lOSS. Unless otherwise stated, all deliveries shall be F,O,B. lOll
Medical Corporation's facility. Risk of loss or damage to the Equipment shall pass to the Customer upon
delivery of the Equipment to the carrier.
3. TERMS OF PAYMENT. Unless otherwise stated in its Quotation payment by Customer is due thirty
(30) days after the ship date appearing on lOll Medical Corporation invoice, Any amounts payable
hereunder which remain unpaid after the date shall be subject to a late charge equal to 1.5% per month
from the due date until such amount is paKl.
4. CREDIT APPROVAl.. All shipments and deliveries shall at all times be subject to the approval of
credit by lOll Medical Corporation. lOll Medical Corporation may at any time decJine to make any
shipment or delivery except upon receipt of payment or security or upon terms regarding credit or
seClJrity satisfactory to lOll Medical Corporation.
5. TAXES & FEES. The pricing quoted in its Quotation do not include sales use, excise, or other similar
taxes or any duties or customs charges, or any order processing fees, The Customer shall pay in
addition for the prices quoted the amount of any present or future sales, excise or other similar tax or
ClJstoms duty or charge applicable to the sale or use of the Equipment sold hereunder (except any tax
based on the net income of lOll Medical Corporetion), and any order processing fees that lOll may
apply from time to time. In lieu thereof the Customer may provide lOll Medical Corporation with a tax
exemption certificate acceptable to the taxing authorities
6. WARRANTY. (a) lOll Medical Corporation warrants to the Customer that from the earlier of the date
of installation or thirty (30) days after the date of shipment from lOll Medical Corporation's facility, the
Equipment (other than accessories and electrodes) will be free from defects in material and workmanship
under normal use and service for the period noted on the reverse side. Accessories and electrodes shall
be warranted for ninety (90) days from the date of shipment, During such period lOll Medical
Corporation will at no charge to the Customer either repair or replace (at lOll Medical Corporation's
sole option) any part of the Equipment found by lOll Medical Corporation to be defective in material or
workmanship. If lOll Medical Corporation's inspection detects no defects in material or workmanship,
lOll Medical Corporation's regular service charges shall apply. (b) lOll Medical Corporation shall not
be responsible for any Equipment defect failure of the Equipment to perform any specified function, or
any other noncooformance of the Equipment caused by or attributable to (i) any modification of the
Equipment by the Customer, unless such modification is made with the prior written approval of lOll
Medical Corporation: (ii) the use of the Equipment with any associated or complementary equipment
accessory or software not specified by lOll Medical Corporation, or (iii) any misuse or abuse of the
Equipment: (iv) exposure of the Equipment to conditions beyond the environmental, power or operating
constraints specified by lOll Medical Corporation, or (v) installation or wiring of the Equipment other
than in accordance with lOll Medical Corporation's instructions. (c) Warranty does not cover items
subject to normal wear and burnout during use, including but not limited to lamps, fuses, batteries, cables
and accessories. (d) The foregoing warranty does not apply to software included as part of the
Equipment (including software embodied in read-only memory known as "firmware"), (e) The foregoing
warranty constitutes the exclusive remedy of the Customer and the exclusive liability of lOll Medical
Corporation for any breach of any warranty related to the Equipment supplied hereunder. THE
WARRANTY SET FORTH HEREIN IS EXCLUSIVE AND lOLL MEDICAL CORPORATION
EXPRESSLY DISCLAIMS All OTHER WARRANTIES WHETHER WRITTEN, ORAL, IMPLIED, OR
STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
7. SOFTWARE LICENSE. (a) All software (the "Software" which term shall include firmwere) included as
part of the Equipment is licensed to Customer pursuant to a nonexclusive limited license on the terms
hereinafter set forth, (b) Customer may not copy, distribute, modify, translate or adapt the Software, and
may not disassemble or reverse compile the Software, or seek in any manner to discover, disclose or
use any proprietary algorithms, techniques or other confidential information contained therein, (c) All
rights in the Software remain the product of lOll Medical Corporation, and Customer shall have no right
or interest therein except as expressly provided herein. (d) Customer's right to use the Software may be
terminated by lOll Medical Corporation in the event of any failure to oomply with terms of this
quotation, (e) Customer may transfer the license conferred hereby only in connection with a transfer of
the Equipment and may not retain any oopies of the Software following such transfer, (f) lOll Medical
Corporation warrants that the read-only memory or other media on which the Software is recorded will be
free from defects in materials and workmanship for the period and on terms set forth in section 6. (g)
Customer understands that the Software is a complex and sophisticated software product and no
assurance can be given that operetion of the Software will be uninterrupted or error-free, or that the
Software will meet Customer's requirements. Except as set forth in section 7(f), lOll MEDICAL
CORPORATION MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE
SOFTWARE AND IN PARTICULAR DISCLAIMS ANY IMPLIED WARRANTIES OR
MERCHANTABILITY OR FITNESS OF A PARTICULAR PURPOSE WITH RESPECT THERETO
Customer's exclUSive remedy for any breach of warranty or defect relating to the Software shall be the
repair or replacement of any defective read-only memory or other media so that it oorrectly reproduces
the Software. This license applies only to lOll Medical Corporation Software
8. DELAYS IN DELIVERY. lOll Medical Corporation shall not be liable for any delay in the delivery of
any part of the Equipment if such delay is due to any cause beyond the control of the lOll Medical
Corporation including, but not limited to acts of God, fires. epidemics, floods, riots, wars, sabotage, labor
disputes, governmental actions, inability to obtain materials, components, manufacturing facilities or
transportation or any other cause beyond the control of lOll Medical Corporation. In addition lOll
Medical Corporation shall not be liable for any delay in delivery caused by failure of the Customer to
provide any necessary information in a timely manner. In the event of any such delay, the date of
shipment or performance hereunder shall be extended to the period equal to the time lost by reason of
such delay. In the event of such deiay lOll Medical Corporation may allocate available Equipment
among its Customers on any reasonable and equitable basis. The delivery dates set forth in this
Quotation are approximate only and lOll Medical Corporation shall not be liable for or shall the
Contract be breached by, any delivery by lOll Medical Corporation within a reasonable time after such
dates
2010-59
9. LIMITATIONS OF UABILlTY. IN NO EVENT SHAll ZOll MEDICAL CORPORATION BE LIABLE
FOR INDIRECT SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM lOll MEDICAL
CORPORATIONS PERFORMANCE OR FAILURE TO PERFORM PURSUANT TO THIS QUOTATION
OR THE CONTRACT OR THE FURNISHING, PERFORMANCE, OR USE OF ANY EQUIPMENT OR
SOFTWARE SOLD HERETO, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF
WARRANTY, THE NEGLIGENCE OF lOll MEDICAL CORPORATION OR OTHERWISE
10. PATENT INDEMNITY. lOll Medical Corporation shall at its own expense defend any suit that may
be instituted against the Customer for alieged infringement of any United States patents or copyrights
related to the parts of the Equipment or the Software manufactured by lOll Medicai Corporation,
provided that (i) such alleged infringement consists only in the use of such Equipment or the Software by
itself and not as a part of or in combination with any other devices or parts, (ii) the Customer gives lOll
Medical Corporation immediate notice in writing of any such suit and permits lOll Med~1 Corporation
through counsel of its d1oice, to answer the charge of infringement and defend such suit, and (iii) the
Customer gives lOll:. Medical Corporation all requested information, assistance and authority at lOll
Medical Corporation's expense, to enable lOll Medical Corporation to defend such suit
In the case of a final award of damages for infringement in any such suit, lOll Medical Corporation will
pay such award. but it shall not be responsible for any settlement made without its written consent.
Section 10 states lOll Medical Corporation's total responsibility and liability's, and the Customer's sole
remedy for any actual or alleged infringement of any patent by the Equipment or the Software or any part
thereof provided hereunder. In no event shall lOll Medical Corporation be liable for any indirect,
special, or consequential damages resulting from any such infringement.
11. CLAIMS FOR SHORTAGE. Each shipment of Equipment shall be promptly examined by the
Customer upon receipt thereof, The Customer shall inform lOll Medical Corporation of any shortage in
any shipment within ten (10) days of receipt of Equipment If no such shortage is reported within ten (10)
day period, the shipment shell be conclusively deemed to have been complete.
12. RETURNS AND CANCELLATION. (a) The Customer shall obtain authorization from lOll Medical
Corporation prior to returning any of the Equipment. (b) The Customer receives authorization from lOll
Medical Corporation to return a product for credit, the Customer shall be subject to a restocking charge
of twenty percent (20%) of the original list purchase price, but not less than $50.00 per product. (c) Any
such change in delivery caused by the Customer that causes a delivery date greater than six (6) months
from the Customer's original order date shall constitute a new order for the affected Equipment in
determining the appropriate list price
13. APPLICABLE LAW. This Quotation and the Contrect shall be governed by the substantive laws of
the Commonwealth of Massachusetts without regard to any choice of law provisions thereof
14. COMPLIANCE WITH LAWS. (a) lOll Medical Corporation represents that all goods and services
delivered pursuant to the Contract wiil be produced and supplied in compliance with all applicable state
and federal laws and regulations, including the requirements of the Fair labor Standards Act of 1938, as
amended. (b) The Customer shall be responsible for compliance with any federal, state and local laws
and regulations applicable to the installation or use of the Equipment furnished hereunder, and will obtain
any permits required for such installation and use.
15. NON-WAIVER OF DEFAULT. In the event of any default by the Customer, lOll Medical
Corporation may decline to make further shipments or render any further warranty or other services
without in any way affecting its right under such order. If despite any default by Customer, lOll Medical
Corporation elects to continue to make shipments its action shail not constitute a waiver of any default by
the Customer or in any way affect lOll Medical Corporation's legal remedies regarding any such
default No claim or right arising out of a breach of the Agreement by the Customer can be discharged in
whoie or in part by waiver or renunciation of the claim or right unless the waiver or renunciation is
supported by consideration and is in writing signed by lOll Medical Corporation
16. ASSIGNMENT. This Quotation, and the Contract, may not be assigned by the Customer without the
prior written consent of lOll Medical Corporation, and any assignment without such consent shall be
null and void
17. TITLE TO PRODUCTS. Title to right of possession of the products sold hereunder shall remain with
lOll Medical Corporation until lOll Medical Corporation delivers the Equipment to the carrier and
agrees to do all acts necessary to perfect and maintain such right and title in lOll Medical Corporation.
Failure of the Customer to pay the purchase price for any product when due shall give lOll Medical
Corporation the right, without liability to repossess the Equipment, with or without notice, and to avail
itself of any remedy provided by law
18. EQUAL EMPLOYMENT OPPORTUNITY I AFFIRMATIVE ACTION.
VETERAN'S EMPLOYMENT - If this order is subject to Executive Order 11710 and the
rules, regulations, Of orders of the Secretery of labor issued thereunder the contract clause as set forth
at 41 CFR 60-25004 is hereby included as pan of this order.
EMPLOYMENT OF HANDICAPPED . if this order is subject to Section 503 of the
Rehabilitation Act of 1973, as am9l'1ded and the rules, regulations or orders of the Secretary of labor as
issued thereunder, the contract clause at 41 CFR 60-741.7 is hereby included as part of this order
EQUAL OPPORTUNITY EMPLOYMENT - if this order is subject to the provisions of
Executive Order 11246, as amended, and the rules, regulations or orders of the Secretary of labor
issued thereunder, the contract clause set forth at 41 CFR 60-104 (a) and 60-104 (b) are hereby included
as a part of this order and Seller agrees to comply with the reporting requirements set forth at 41 CFR
60-1.7 and the affirmative action compliance program requirements set forth as 41 CFR 60-1040
19. VAUDITY OF QUOTATION. This Quotation sheil be valid end subject to acceptance by the
Customer, in accordance with the terms of Section 1 hereof for the period set forth on the face hereof
After such period, the acceptance of this Quotation shall not be binding upon lOll Medical Corporation
and shall not create a contract, unless such acceptance is acknowledged and accepted by lOll Medical
Corporation by a writing signed by an authorized representative of lOll Medical Corporation
20. GENERAl. Any Contract resulting from this Quotation shali be governed by and interpreted in
accordance with the laws of the Commonwealth of Massachusetts. This constitutes the entire
agreement between Buyer and Supplier with respect to the purchase and sale of the Products described
in the face hereof, and only representations or statements contained herein shall be binding upon
Supplier as a warranty or otherwise Acceptance or acquiescence in the course of performance
rendered pursuant hereto shall not be relevant to determine the meaning of this writing even though the
accepting or acquiescing party has knowledge of the nature of the performance and opportunity for
objection, No addition to or modification of any of the terms and cOnditions specified herein shall be
binding upon Supplier unless made in writing and signed by a duly authorized representative of Supplier
The terms and conditions specified shall prevail notwithstanding any variance from the terms and
conditions of any order or other form submitted by Buyer for the Products set forth on the face of this
Agreement. To the extent that this writing may be treated as an acceptance of Buyer's prior offer, such
acceptance is expressly made conditional on assent by Buyer to the terms hereof, and, without limitation,
acceptance of the goods by Buyer to the terms hereof, and, without limitation, acceptance of the goods
by Buyer shall constitute such assent AIi cancellations and reschedules require a minimum of thirty (30)
days notice
ZOLL Mp.rtir.~1 Cnrnnr~tinn