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HomeMy WebLinkAbout19- Fire CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION R r W n From: Michael J. Conrad, Fire Chief Subject: Resolution authorizing the execution of an agreement and issuance of a purchase order to Zoll Medical Corporation for four(4)cardiac monitor/defibrillators Dept: Fire with accessories. Date: March 11, 2010 Meeting Date: April 5, 2010 Synopsis of Previous Council Action: 10/20/08 Resolution#2008-399 authorizing the Director of Finance to issue a purchase order to Zoll Medical Corporation in the amount of$28,289.20 for a defibrillator. 08/18/08 Resolution#2008-328 ratifying the submittal of the budget detail worksheet for the FY 2008 Metropolitan Medical Response System Grant Program to the San Bernardino County Fire Department, Office of Emergency Services. 09/17/07 Resolution#2007-384 ratifying the submittal of the FY 2007 Metropolitan Medical Response System Grant Program budget detail worksheet to the San Bernardino County Fire Department, Office of Emergency Services. 05/21/07 Resolution#2007-164 authorizing the Director of Finance to issue a purchase order to Zoll Medical Corporation in the amount of$95,791.83 for the purchase of defibrillators and accessories. 10/04/04 Resolution#2004-313 authorizing the Purchasing Manager to issue a purchase order to Zoll Medical Corporation in the amount of$230,191.70 for 14 defibrillators. RECOMMENDATION: Adopt resolution. Signature Contact Person: Bernie Horak, EMS Coordinator Phone: (909) 384-5286 Supporting data attached: Staff Report, Resolution,Agreement, and Quote Ward: Citywide FUNDING REQUIREMENTS: Amount: $84,013.81 Source: (Acct.No.) 123-804-5704 (Acct Descr.) Federal & State Program-2008 Fire MMRS Finance: Council Notes: CZSd Agenda Item Na. / _ CITY OF SAN BERNARDINO INTEROFFICE MEMORANDUM FIRE DEPARTMENT �n RPrna ina TO: Charles McNeely, City Managers / From: Michael J. Conrad, Fire Chief // . /�• Date: March 11, 2010 (/ SUBJECT: City Manager's Approval of Process-Purchase made pursuant to Section 3.04.010 (B)(3) of the City's Municipal Code(Purchases approved by the Mayor and Common Council and emergency purchases approved by the City Manager). DDL Number 82. COPIES: Mat Fratus, Deputy Chief Zoll Medical Corporation, hic.was selected as a Select Source for the following reason: Zoll Medical Corporation's and other vendor's cardiac monitor/defibrillators were evaluated by the Fire Department EMS Advisory Committee (Paramedics) and it was determined that Zoll's product was the superior monitor/defibrillator. This was based on clinical performance, ease of use, durability, and warranty coverage. Standardization of EMS equipment is critical for training and operational purposes in ensuring reliable performance by personnel. Zoll is the exclusive brand used by the Fire Department for cardiac monitor/defibrillators and automated external defibrillators. Therefore, Zoll Medical Corporation is the selected provider of the required product. A Request for Council Action entitled, "Resolution authorizing the execution of an agreement and issuance of a purchase order to Zoll Medical Corporation for four (4) cardiac monitor/defibrillators with accessories", has been submitted and placed on the April 5, 2010 agenda calendar for review and approval. Approved By: Charles McNeel , City Manager (2008 HSGP - city of San Bernardino MMRS - Sole source Approval for Defibrillatorscardiac (3 eact From: Daugherty, Yolanda - FIRE [ydaugherty @sbcfire.org] Sent: Wednesday, December 16, 2009 9:59 Am To: Feser_Do cc: Camarena_No; Alvord—ma; Sampson, Eri Cka Subject: FY2008 HSGP - City of San Bernardino MMRS - Sole source Approval for Defibrillators/Cardiac (3 each) Attachments: San Bernardino - FY08 sole Source-MMRS- Defibrillators-cardiac Monitors.doc Importance: High Hi Don, I just wanted to let you know that we received sole source approval from caIEMA on 12/15/09, for the City of SB to purchase defibrillators and related equipment from ZOLL Medical Corporation. Please make sure to attach a copy of this email along with your city council approval to your reimbursement request in the future. Attached is a copy of the Sole Source Request that was approved by CalEMA. Thank you and please call with any questions. PS we are still waiting for approval on your other requests. Yolanda Daugherty Administrative Supervisor San Bernardino county Fire Department office of Emergency services Grants Administration unit Phone: (909) 356-3932 Fax: (909) 356-3965 Email : ydaugherty @sbcfire.org No virus found in this incoming message. checked by AVG - www.avg.com version: 8.5.427 / virus Database: 270.14.110/2568 - Release Date: 12/16/09 Page 1 FY2008 HSGP - SOLE SOURCE APPROVAL Shelters Motorola Training Materials From: Daugherty, Yolanda - FIRE [ydaugherty @sbcfire.org] Sent: Monday, December 21, 2009 3:59 PM To: Feser_DO Cc: Sampson, Ericka; Alvord_Ma; Camarena_No subject: FY2008 HSGP - SOLE SOURCE APPROVAL for MMRS projects Hi Don, Good news! we received sole source approval for the following FY2008 HSGP/MMRS projects: As discussed this morning - please make sure that we do not deviate from the items submitted to the state. if you feel that we need to make some changes, please let us know so we can help you. Thank you. * Rapid deployment shelter - DHS Technologies * Radios - Motorola, Inc. * Training materials - Us Government Printing office Please call me with any questions. Thanks, Yolanda Daugherty Administrative supervisor San Bernardino County Fire Department Office of Emergency services Grants Administration unit Phone: (909) 356-3932 Fax: (909) 356-3965 Email : ydaugherty @sbcfire.org No virus found in this incoming message. Checked by AVG - www.avg.com version: 8.5.427 / virus Database: 270.14.116/2579 - Release Date: 12/21/09 07:36:00 Page 1 Attachment A FY 2008 HSGP CALIFORNIA EMERGENCY MANAGEMENT AGENCY Request for Sole Source Contract,Aviation/Watercraft, and/or Establish/Enhance Emergency Operations Center(EOC) Homeland Security Grant Program Grant Number# 2008-0006 OES ID# 071-00000 Urban Area Security Initiative (UASI)FY Grant Number OES ID# Other Grant Number OES ID# Request for: Sole Source__ Establish/Enhance EOC Aviation/Watercraft (Please answer ALL relevant questions in narrative form) SOLE SOURCE CONTRACT REQUEST a. Describe the project and/or activity that will be provided by the proposed sole source vendor/contractor. The City of San Bernardino is requesting a sole source waiver to acquire the following: FY2008 Homeland Security Grant,MMRS AEL Reference Number: 09ME-03-DEMP Equipment Category: Diagnostic/Monitoring/Defibrillation Title Description: Defibrillator/Cardiac Monitors/Pacing Amount: $84,000 The vendor, ZOLL Medical Corporation,will provide the following: (3) E Series ACLS Manual DeSbrillator(s)with advisory capability, 12-lead 1-step patient cable, Sp02 with reusable sensor,Integrated Bluetooth,and Noninvasive Pacing. (3)E Series Only CAPNO 5 Mainstream CO2 Sensor(s) and Cable SurePower Charging Station(s) SurePower Rechargeable Lithium Ion Battery Pack(s) b. Describe your organization's standard procedures when sole source contracting is considered, including the conditions under which a sole source contract is allowed, and any other applicable criteria(i.e. approval requirements,monetary thresholds, etc.). The City of San Bernardino Municipal Code, Chapter 3, Section 3.04.010, authorizes the Purchasing Agent or Administrative Officer approval to issue purchase orders for supplies, materials, and equipment made only by purchase order. Page 1 of 3 The Finance Department/Purchasing Manager, with the City Manager's approval, may contract for services of $25,000 or less. Contracts for services over $25,000 require the approval of the Mayor and Common Council. The requesting department will submit purchases of$25,000 or more to the Mayor and Common Council for approval. Upon the need for supplies, materials, or equipment over $500, which city departments are unable to solicit for three bids/quotes, the department is able to request a sole source, or select source purchase order for that vendor. The department must justify their request to the city's Finance/Purchasing Department by memo. The memo must explain the type of equipment/service and the purpose of the use of the item. Prior to submittal to the city's Finance Department the department's head (Fire Chief, Deputy Chief, or Division Chief) must sign off on the request. Finance will review requests prior to issuance of a purchase order to the vendor. 3. Indicate which of the following circumstances resulted in your organization's need to enter into a sole source contract. a. Item/service is only available from one source (Describe the process used to make that determination. The ZOLL E Series Manual Defibrillator is a state-of-the-art proprietary product of the ZOLL Medical Corporation. The City of San Bernardino Fire Department has seven (7) ZOLL E Series units in service,acquired through federal grant funding, and intends to acquire three (3) additional units under the FY 2008 MMRS grant. This is the third year of a multi-year program to replace older ZOLL M Series units with ZOLL E Series units on twelve (12) frontline paramedic engine companies, two (2) paramedic truck companies, and one (1) paramedic squad. ZOLL E Series Manual Defibrillators are proprietary, and only available through ZOLL Medical Corporation, therefore the need for sole source acquisition approval. b. A public urgency or emergency will not permit a delay resulting from competitive solicitation. (Describe the urgency or emergency**According to the federal Department of Homeland Security's Office of the Comptroller, "Time constraints will not be considered a factor if the sub grantee has not sought competitive bids in a timely manner." b. Describe the solicitation process that determined competition was inadequate. 4. Did your organization confirm that the contractor/vendor is not debarred or suspended? Yes,the VENDOR was not identified in the excluded parties list system. Page 2 of 3 i 5. Will your organization be able to complete all activities associated with the sole source contract by the end of the grant performance period? Pending approval of the sole source request, and Mayor and Common Council concurrence, the City Finance/Purchasing Department will complete the acquisition. The City would appreciate prompt approval of this request from CalEMA in order to complete this project within the grant performance period. 6. Describe your organization's cost analysis of the contractor/vendor's bid/proposal. ZOLL Medical Corporation is the industry standard for cardiac resuscitation products and the city currently maintains a complement of the older ZOLL M Series along with the new E Series units. The Fire Department anticipates that changes in medical technology and standards will render the older ZOLL M Series obsolete in the future,and has factored this into a replacement strategy. The replacement strategy also includes maintaining a standard cardiac resuscitation unit to assist Fire Department paramedics in equipment proficiency irregardless of the apparatus they are assigned to in a given shift. The ZOLL E Series is the preferred alternative from the standpoint of enabling paramedics to maintain proficiency during cardiac emergencies. Page 3 of 3 STAFF REPORT SUBJECT Resolution authorizing the execution of an agreement and issuance of a purchase order to Zoll Medical Corporation for four(4)cardiac monitor/defibrillators with accessories. BACKGROUND On August 18, 2008, the Mayor and Common Council approved resolution #2008-328 authorizing the Fire Department to submit the 2008 Metropolitan Medical Response System (MMRS) Grant Program budget detail worksheet to the San Bernardino County Fire Department, Office of Emergency Services. The city was awarded $321,221 for the procurement of communication equipment, emergency medical equipment (oxygen regulators, airway, and defibrillators), generator, rapid deployment shelters, and personnel training costs. In October 2004, the Fire Department purchased fourteen (14) defibrillators from Zoll Medical Corporation to replace obsolete and/or old defibrillators. Zoll Medical Corporation's defibrillators were evaluated by the Fire Department EMS Advisory Committee (Paramedics) and it was determined that Zoll's product was the superior monitor/defibrillator. This was based on clinical performance, ease of use, durability, and warranty coverage. Currently, there is a need to purchase four (4) Zoll cardiac monitor/defibrillators to replace used defibrillators and to upgrade the capabilities to comply with upcoming medical protocol changes. In addition, funding is being sought under the 2010 MMRS grant to purchase additional cardiac monitor/defibrillators. If received, this will allow us to expand the number of our advanced life support units available during a disaster and replace our most heavily used defibrillators. Therefore, in accordance with the City of San Bernardino Municipal Code Section 3.4.O1O13 (3) purchasing procedures for "selective source", the Fire Department recommends that Zoll Medical Corporation be issued a purchase order for the defibrillators and accessories in the amount of $83,181.99 plus approval for 1% contingency costs, if needed for unforeseen circumstances, in the amount of$831.82. Zoll is the exclusive brand used by the Fire Department for cardiac monitors/defibrillators and automated external defibrillators. Standardization of EMS equipment is critical for training and operational purposes in ensuring reliable performance by personnel. FINANCIAL IMPACT There is no financial impact to the General Fund. i The total amount to be awarded to Zoll Medical Corporation for the four (4) cardiac jmonitor/defibrillators and accessories is $83,181.99 plus approval for a 1% contingency in the amount of $831.82 for a total not to exceed amount of $84,013.81. The 2008 Metropolitan Medical Response System Grant funds, account #123-804-5704, will be utilized for the procurement of the cardiac monitor/defibrillators and accessories. The original budget amount awarded to the city for equipment and training is $321,221; current balance is $235,554.19; and remaining balance after this approval, DHS Systems LLC, and Motorola's (on today's agenda)will be $48,036.70. RECOMMENDATION Adopt resolution. 2 COPY 1 RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY 3 OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT AND ISSUANCE OF A PURCHASE ORDER TO ZOLL MEDICAL 4 CORPORATION FOR FOUR (4) CARDIAC MONITOR/DEFIBRILLATORS WITH ACCESSORIES. 5 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 7 8 SECTION 1. That Zoll Medical Corporation has offered a total negotiated purchase 9 price of$83,181.99, for the required four (4) cardiac monitor/defibrillators with accessories, 10 attached hereto and incorporated herein marked Exhibit "A". Pursuant to this determination 11 and the San Bernardino Municipal Code Section 3.04.01013(3), the Director of Finance or 12 13 her designee is hereby authorized and directed to issue a Purchase Order to Zoll Medical 14 Corporation in the amount of$83,181.99 with a contingency amount of$831.82, for a total 15 not to exceed of $84,013.81 which will facilitate the procurement of the four (4) cardiac 16 monitor/defibrillators with accessories; and 17 SECTION2. The City Manager is hereby authorized and directed to execute on 18 behalf of the City, Purchase Agreement with Zoll Medical Corporation, a copy of which is 19 20 attached hereto, marked Attachment "A", and incorporated herein by reference as fully as 21 though set forth at length; and 22 SECTION 3. The authorization to execute the above reference Agreement and 23 Purchase Order is rescinded if not fully executed/issued within sixty(60) days of the 24 passage of this resolution. 25 26 27 28 I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT 2 AND ISSUANCE OF A PURCHASE ORDER TO ZOLL MEDICAL 3 CORPORATION FOR FOUR (4) CARDIAC MONITOR/DEFIBRILLATORS WITH ACCESSORIES. 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 5 6 and Common Council of the City of San Bernardino at a meeting thereof. held on the day of 2010,by the following vote,to wit: 8 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT 9 10 MARQUEZ 11 DESJ.ARDINS 12 BRINKER 13 SHORETT 14 KELLEY 15 JOHNSON 16 17 MCCAMMACK 18 Rachel G. Clark, City Clerk 19 City of San Bernardino 20 21 The foregoing Resolution is hereby approved this day of , 2010. 22 23 Patrick J. Morris, Mayor 24 City of San Bernardino 25 Approved as to form: 26 JAM F. PEN7W ,, Cit >/ptmey 1 27 By: _ cD�t� 28 2 Attachment "A" PURCHASE AGREEMENT This Purchase Agreement is entered into this day of 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 monitor/defibrillators 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 monitor/defibrillators 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 `r invoice, shall pay the Vendor up to the amount of$83,181.99 for four(4)cardiac monitor/defibrillators 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 i before commencement of efforts by the City to effect cover or a cure except upon written agreement of the 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$1,000,000.00 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 of their 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: 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. 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 parry 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: ,2010 VENDOR By: Its: Dated 2010 CITY OF SAN BERNARDINO By: Charles McNeely, City Manager Approved as to Form: (� James F. Penman, City Attorney By: 4 PURCHASE AGREEMENT This Purchase Agreement is entered into this day of 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 monitor/defibrillators 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 monitor/defibrillators 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 for four(4) cardiac monitor/defibrillators 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 before commencement of efforts by the City to effect cover or a cure except upon written agreement of the 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$1,000,000.00 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 of their 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 p� States Postal Service, postage prepaid and addressed as follows: {`, 2 C 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. v 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. G 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. 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 E" of this Agreement. This Agreement may be modified or amended only by a written instrument f4/ 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: ,2010 VENDOR By: Its: Dated 2010 CITY OF SAN BERNARDINO By: Charles McNeely, City Manager Approved as to Form: James F. Penman, City Atto 7 © By' 4 Ezhi�tt "A" ZOLL.. WILL Medical Corporation 4tiv"ncine Rouacit"rion. T..t, Worldwide HeadQuarters NONE= 269 Mill Rd Chelmsford, Massachusetts 01824-4105 "rn: San Bernardino City Fire Department (978) 421-9655 Main (800) 348-9011 200 East Third Street - (978) 421-0015 Telefax San Bernardino, CA 92410 QUOTATION 45903 V:5 Attn: Bernie Horak EMS Captain DATE: March 10, 2010 email: horak be(&ci.san-bernardino.ca.us Tel: 9OM93-6491 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 DeTibdllator with Advisory 4 $22,325.00 $17,860.00 $71,440.00 capability,12-lead with 1-step patient cable,Sp02 comes with EtCO2 port)with reusable sensor and 4' 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 - Rechargeable Lithium Ion Battery with built in AC Charger ordered separately,RS232 data transfer port, Rugged SoftPack Carry 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. 8000- 1007-01 1 Step Patient Cable for 12-lead ECG with limb leads 4 $315.00 Included Included and v leads(10 ft) 1 t 8000-0294 Sp02 LNCS Adult Reusable Sensor(leach) 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 ft) 2 8000- 0312 E Series Only CAPNO 5 Mainstream CO2 Sensor and 3 $4,775.00 $3,820.00 $11,460.00 Cable 3 8050- 0030-01 SuniPowerr'Charging Station 2 $2,275.00 $1,820.00 $3,640.00 This quote is made subject to ZOLL's standard commercial terms and conditions(ZOLL T's+C's)which page 1 Subtotal accompany this quote. Any purchase order(P.O.)issued in response to this quotation will be deemed to incorporate ZOLL T's+Vs.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. Bryan Pank 2. PRICES WILL BE F.O.B.SHIPPING POINT. Sr.Account Executive 3. WARRANTY PERIOD(See above AND Attachment). 800-242-9150,x9218 4. PRICES QUOTED ARE VALID FOR AN ORDER ON OR BEFORE MAY 1.2010. 5. APPLICABLE TAX& FREIGHT CHARGES&ORDER PROCESSING FEE ADDITIONAL. v ' L PURCHASE ORDERS ARE SUBJECT TO CREDIT APPROVAL BEFORE ACCEPTANCE BY ZOLL. RCHASE 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 ZOLL. ZOLL Medical Corporation Ae.. .sr e....I..r:o,.. r a.n' Worldwide HeadQuarters 269 Mill Rd Chelmsford, Massachusetts 01824-4105 San Bernardino City Fire Department (978)421-9655 Main (800) 348-9011 (978)421-0015 Telefax 200 East Third Street San Bernardino, CA 92410 QUOTATION 45903 V:5 Attn: Bernie Horak EMS Captain DATE: March 10,2010 email: horak be(a)ci.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'a 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 4001-9910 ZOLL M Series Biphasic w/Pacing+2 options Trade-In 4 ($3,500.00) ($14,000.00) DISC 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 nude subject to ZOLL's standard commercial terms and conditions(ZOLL T's+C's)which page 2 Subtotal $83,181.99 accompany this quote. Any purchase order(P.O.)issued in response to this quotation will be deemed to incorporate ZOLL T's+C's.Any modification of the ZOLL T's+C's must be set forth or referenced in the customers P.O. No commercial terms or conditions shall apply to the sale of goods or services governed by this quote and the customers P.0 unless set forth in or referenced by either document 1. DELIVERY WILL BE MADE 60-90 DAYS AFTER RECEIPT OF ACCEPTED PURCHASE ORDER. Bryan Pank 2. PRICES WILL BE F.O.B.SHIPPING POINT. Sr.Account Executive 3. WARRANTY PERIOD(See above AND Attachment). 800-242-9150,x9218 4 PRICES QUOTED ARE VALID FOR AN ORDER ON OR BEFORE MAY 1.2010. 5.APPLICABLE TAX 8 FREIGHT CHARGES 8 ORDER PROCESSING FEE ADDITIONAL. -L PURCHASE ORDERS ARE SUBJECT TO CREDIT APPROVAL BEFORE ACCEPTANCE BY ZOLL. JRCHASE ORDERS TO BE FAXED TO ZOLL CUSTOMER SERVICE AT 978121-0015. 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 2 ZOLLZOLL Medical Corporation Worldwide HeadQuarters 269 Mill Rd Chelmsford, Massachusetts 01824-4105 '71 San Bernardino City Fire Department (978) 421-9655 Main (800) 348-9011 200 East Third Street - (978)421-0015 Telefax San Bernardino, CA 92410 QUOTATION 45903 V:5 Attn: Bernie Horak EMS Captain DATE: March 10,2010 email: horak be®ci.san-bernardino.ca.us Tel: 909-693-6491 TERMS: Net 30 Days FOB: Shipping Point Freight: Prepay and Add ITEM MODEL NUMBER DESCRIPTION OTY. 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 terns and conditions(ZOLL Ts+C's)which TOTAL $$3,181.99 accompany this quote. Any purchase order(P.O.)issued in response to this quotation will be deemed to incorporate ZOLL Ts+C's.Any modification of the ZOLL T's+C's must beset 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. Bryan Pank 2. PRICES WILL BEF.O.B. SHIPPING POINT. Sr.Account Executive 3.WARRANTY PERIOD(See above AND Attachment). 800-242-9150,x9218 4. PRICES QUOTED ARE VALID FOR AN ORDER ON OR BEFORE MAY 1 2010. 5.APPLICABLE TAX&FREIGHT CHARGES&ORDER PROCESSING FEE ADDITIONAL. ' L PURCHASE ORDERS ARE SUBJECT TO CREDIT APPROVAL BEFORE ACCEPTANCE BY ZOLL. RCHASE 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 COPY OF OR REFERENCE TO YOUR QUOTATION NUMBER WITH PURCHASE Page 3 ZOLL QUOTATION GENERAL TERMS& CONDITIONS 9.LOMITATIONS INDIRECT SP CABILRY.IN NO EVENT SHALL AGE MEDICAL CORPORATION BE EDIBLE t ACCEPTANCE The Qlbtatbn cPr domess an offer by Medical u edl in his u sell b iM FOR INDIRECT SPECIAL OR CE OR FAILURE DAMAGES RESULTING FROM IS Q MEDICAL dealhmer the equipment (intleaHg a flmnu to use certain W software) w In der Quptatim ON CORPORATIONS PERFORMANCE OR FAILURE TO PERFORM PURSUANT TO EQUIPMENT QUOTATION de Equip in the My acceptance eoher awdad to or refered te in MIS Qumstof IS O uvtter , oduc b OR THE CONTRACT OR TO,FURNISHING,PERFORMANCE,OR USE OF ANY T, BREACH OR as Equipment).Mys as Cordifo cam oflaaexpressly ax limited to terms GMISQOOtalba,invading SOFTWARE SOLD NEGLIGENCE OF ZOLL ODE TO A BREATH OF CONTRACT, BREACH OF ie cts Tarns and C Phil pits.Secondhand,tat S shall be w lLL sh to Otis oartaun or anaterMing Or WARRANTY,THE NEGLIGENCE OF ZOLL MEDICAL CORPORATION OR OTXERVASE. nfliding written so Orel repreon or it d made by ZOLL Matlicta' by WILL a any spool w fge a Z o Medial Corporation or lii7 ecep a tPASWO1 by the C st peer My su h dddWmor be PATENT INDEMNITY.ZOLL Medial SWOOP anal)M N own tided St es W P, Met may s Any Puronue order,bl etoiany S e omen Comment this Q of the Customer. of such de in ad, de it.to t against a of Customer for aOf the Soma es m n eat manufactured BMus Madnu a coolemore snail n Wooly inapplicable to any Sale man pursuant to mIe Guotallon,ant spell not be antlmg In xry proved b the Pens of Me Equipment t the GoXwim manNewrf by ZOLL Maorth Capyare b way on ZOLLMddlpal Corporation an pnor(i)apt alleged infringement corm a nonNinthe use a apt Equipment or er Smwareby itsed and nor as ti pen ore m holds in t a wod dM'Oatenchsms n lede.(ii)Vx Customer gives ZOLL Acceptance a Imp Quotation stone W dg Customer knell create an ogee'the between cone Medical Medical Corporation of Immediate notice e writing of any such suit add an de ZOLL M sul Corporation wood Corpoorshod em Me Customer(nPrelMMs referred to ati Quotation dcl tt'ate tams and mMnians o thougm counsel of is Mow,to answer Ina Uuree s I iff g eat ad mend aunt suit add(iii)phe wuch are else or no limhed b the r,of t e r Mis ins 0 adding these TBmS and it eio id No Customer gives ZOLL Medical t o ard. all requested Imarmstbn,asaaante and authority st 20LL warear Mango or mooRlmtion of SaY Of the Pwaver s W MIS Quotation ds nod Contract Stull de bidding Medical Corporalors expense.to enable 20LL Medical Camrzlion M daedd sum wit. ex ZOLL states t at I is al'wn tubas such waiver, Marge a mboodNlon(i) a made In writing(ii) expressly states drat h is a waiver,change L m adgapCo po MIS Omsllon or lda Oozed and(iii)is In the mate of d lbul twat no damages for le for any in any such wit'll Medlcel mount will spited by an auMOmstl ropresenlatrve of ZOLL Metliml Capaatlm. pay such award,tiro it snail nor be responsible for any se11ement made wMON as written consent. Z DELIVERY AND FISH OF LOSS. Unless othewise aa90 all tle Oranes shell be F.O.B. ZOLL Section 10 slates ZOLL Medical Corporation's total da,orr ibilM and lai lMs,and Me Customers sole Medical Corporation's facility.Risk of bas or damage to the Equipment Shall pass to the Customer upon remedy for any actual or alleged irhhrgement of any Wwt by the Equipment n the SOffware a any Pan oelirery a the Equipment to HU comer. thereof Provided nereuntler. In coo event Shall ZOLL Medical Corlerelon de liable for ant indireG, mak al,or mnsewentlal damages rasuaing from any such inongermem. 3.TERMS OF PAYMENT. Unless anerwise stated in its Quotation merand by Customer Is due thirty (30)days arse,Me snip data appearing on ZOLL Medical Corporendn Ihadde.Any amounfs Payable 11. CLAIMS FOR SHORTAGE. Each ampmenl of Equipment shall de Promptly exam ned by Me maeunder w11im remain unpaid aher the tlate snail te subject Ill a led charge equal to 1.5%car mach Customer upon rere d thereof.The Customer shall imam ZOLL Mudral Corparelbn of any Shortage in from Me due doe until such amount Is paid any shipment whin ten(10)days of remipt of Equipment.H no such shonape Is repMed wi rn,ten(10) day pendd,the ar,de nt snail m conclusively deemed to due been mmplele. 4.CREDIT APPROVAL.All shipments antl mlwahes small a all times bo aubpd to the approval Of credit by ZOLL Medical Corporation.WILL Medical Consul may at any time bedim b make my 12 RETURNS AND CANCELLATION.(a)The Customer shall wain wthaiaation from ZOLL Maoiml Shipment or delvery except upon rempt of Payment or security or upon terms regarding credit Or Corporation pddr to reW min,any M the Equipment.(b)The Customer removes authndtwn hen WILL sewr'Ity satisfactory to ZOLL Matlical Corporator. MSOImI Co OWW m to abm a Product for crMh,the Customer atoll be subject to a restocking Menge of twenty pnmM(2056)of the original list purchase prim.M not less Man SW DO per product(c)Any 5.TAXES 6 FEES.The pricing quoted in its Ouctsigh do cwt Include sales use excise,or other Smaller such Mange In delivery mused by the Customer that causes a delivery date greater than six(6)months taxes or ant'd ies or customs charges, or ant order processing fees.The Customer shall Pay in fmn the Customers original order We shell mnsdute,a new order for the, medad Equipment In adeitNM for has prices quoted me amount of any present or figure sate mss or Other similar the or tleterminirg the appropriate list elm. customs duty or charge applicable b the NOW or use of the Equipment card hereunder(except any tax based on the mandate of WILL Metliml Corporation),add any order processing fees that ZOLL may 13.APPLICABLE LAW.The Owmipn and the Contract shall he governed M the aubstantwe laws W apply h time to time In lieu thereof Me Customer may provide ZOLL Medical Corporation who a bx the Commdnweaah Of MasaaMUSebs without regal to any moice of law provisions denied exemption candidate acceptable to Me being autnaitlea. 14.COd purse rid o the LAWS(wi ZOLL Metliml add supped presents roams Mat all gallop and services 6.WARRANTY.(a),(L days sat Corporation warms b the Customer that ham curler fa the dale delivered pursuant to the Cmmd will in produced add nts 0 M in mmpaae with all Ad of applicable state as a installation P a Mint'1acc deg asa the data a shipment be ham ZOLL de Metllcal Composition riw fadlM,Me ant federal laws and regulations,Including be ras the ble for c em l a Me Fad Lebo Standards Ad of am 1938 l Equipment(other Man accessories eat stednoted well m hee from a defects In materal and wpkms shel amended regut (b)The Customer snail ta responsible or rele far compliance with any ed hers sate and will laws under dens use ant service for days from noted a of reverse sitle.During s such d and electrodes knell and reguatims applicable to ss installation use a the Equipment fumisned hereuMeq and will obtain lea w ration 0 for ninny (90) oat's from me este of shipment During who paned l Corporation Matlael any lemit3 regNred for such lnsallWlon antl use. s orpomtlon will at no Marge ui de Customer ether repair or oadm(at ZOLL Metliml in drat tan's who option)any Pan a the Equipment laund by ZOLL Medical COrmrstion to w Cstediva In malarial Or 15. NON-WAIVER OF DEFAULT. In the avert of any tlawa by He Lu3lana, ZOLL Metliml BOaniP.H ZOLL Meaml LOIpb2tidm 5 IOSpeCtidn dxetls no defedk n mM¢ndI or wrordon Inlp, LOrparstlan may decline to make further Shipments Or render any further wamatty Or Other aemcM Sediml Corpoostan's regular senlde charges shall apply.(b)ZOLL Metliml C.momeon snail not witlwut In any way affecting hz night under such order ff despite any default by Customer,ZOLL Madical merge for any Equipment defect failures a the Equipment to ledom any specffled function,or Coryoretion elects to mnlinue to make snipmenb he upon shell not constitute a waiver of any wfwH by er nonconformance of the Equipment caused by or abnbu lde to(1)any MW91=1on of the the Customer or in any way affect ZOLL Medical Coroerellpn's legal remedies regaling any apt Equipment by the Customer,unless sum moci imtlan is made with die Prior women approval of WILL default No dam or right arising aN of a breach of the Agreement M the Customer can be discharged in Medical Corpormard(a)the use of lde Egopmem with any ffiSoda6d or complementary equipment whole or In Pan by waiver or re state a t n of the claim o right unless Me eerver Or re rtmoundn is accessary or software not Optioned by ZOLL Medical Corporation,or(S)any misuse or abuse a the supported by mmberxwn and Is In writng signed by WILL Medlral Corporation. Equipment(w)expm ke a Me Equipment to canal s beyond the environmental, bower or olereping constraints soxired by ZOLL Meticat Corporation,or Iv)insWlaon or wiring of the Equipment ocher is.ASSIGNMENT,The Oudatam and the Confined may not be a dlead Py the Customer without the than in ecpotanme with WILL Medical Corporation's in.wdom.(c)Warranty Ews not cover items poor written mmem of ZOLL Meoaal Corpostion,Shot try assignment wMOut sum torment Mall be Subject to normal weer ant burnout during use. inki but not limited to amps,fuses,batteries,rabies null and void. antl accessories. (d)The foregoing wananty does not apply to smwae Included as Pan a Mat Equipment(including software embmietl In reaognly memory knam as Tinware').(e)The fore,mr, 17.TITLE TO PRODUCTS Title to right of possession of the products who hereudder Shull remain with wananty mmiitaes this exclusive remedy of Me Customer and May exclusive l"ably d ZOLL Metliml ZOLL Max icst Carbonate,until ZOLL Medical Corporator beliefs the Equlpnxa to the der.add Corporation for any bream of any wananty related to aie Equipment supplied hereunder. THE S aea to do all acts hece to perfect and maintain sum rgln and tale M ZOLL Sled al Coryorelion. WARRANTY SET FORTH HEREIN IS EXCLUSNE AND ZOLL MEDICAL CORPORATION Failure of the Customer to pay ate Purchase once for any product nhan due Ylall give ZOLL Medical EXPRESSLY DISCI-AIMS ALL OTHER WARRANTIES WHETHER WRITTEN, ORAL, IMPLIED, OR Cormrstor the right,Without tar lhy to repossess the Equipment with a waMUt nike,ant to wait STATUTORY, INCLUDING BUT NOT LIMBED TO ANY WARRANTIES OF MERCHANTABILQY OR delta of anyrearedy provided by law. FITNESS FOR A PARTICULAR PURPOSE. 18.EQUAL EMPLOYMENT OPPORTUNITY I AFFIRMATIVE ACTON. T.SOFTWARE LICENSE(a)All soaware(Ve-Sakowles'whet tam Shall rd.firmware)included as VETERAN'S EMPLOYMENT-If this Ordx a eubjed to Executive Order 11710 and her pan of the Equipment is limned to Customer puderh b a noretluarve limited license on the terms rules,regulations,or orders of the Seueury Of labor Issued thereunder the mmsd Gauge a set forth hereinafter Mt kith,(b)Customer may not copy,daMbute,moray,translate or adapt Me SOawere,and at 41 LFR 66250.4 is hereby induced as part W this Order may not disassemble or raverse compile the SOH m Or seek In any manner IO discover darmse Or use any propeary agmthms, techniques Or other wnfidental information contained therein, (c)All EMPLOYMENT OF HANDICAPPED - B this order is cabled to Second 503 of the rights in ale Software remain the product of WILL Medical COrpbretion,and Customer shall have m right Rehabilitation Ad d 19n.w amended and Ha mks,regulators d orders G Me Secretary of Labor as rintxesl therein except as a firm Provided main.(it)Customers right to use the Software may be uwato MereuMa,the commad Gauge at 41 OFR 60-141)is hereby imluded as pat W Mis adx. terminated by ZOLL Medical Corporation m Me event of any failure to comply with terms of MIS quotation.(6)Customer may transfer the license mnteneo hereby Only in mnnedbn with u transfer of EQUAL OPPORTUNITY EMPLOYMENT - ff MIS otlx is purged to the Provisions a the Equipment and may not retain any copies of the Software foaming such transfer.(f)ZOLL Metliml Executive Order 11245. as amended ant ate rules,regulmom o orders of the Sxs a Labor Corporation warns that the reanronly memory Or Whet media on whim the Smeare is recorded will be issued t aretnder the contract clause set forth at 41 LFR 60-14(a)and 60.1 C ad are hereby induced free from dekcts In materials ant wommarmhip for the period ant on terns set forth in Section 6.(g) As a pan of MIS order and Setter agrees to comply with the repaving requirements set forth at 41 LFR Customer understands the the Software is complex ant Sophisticated software product and no 80.1]and the aMroat'Ive action conplanm program requirements set form as 41 CFR fill insurance can be given that operation d MeaSCIM'are wall be unintampte]Or aroMree, or that Me Software will meet Customers roquimmMs. Except as set food 'm demon 7d) ZOLL MEDICAL 19. VALIDITY OF QUOTATION. The Qupatan moll bo valid and subject to aoeptama by the CORPORATION MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE Customer In acmrdence wit the terms of Sedlon 1 hereof for the per.M food on the face heroof. SOFTWARE AND IN PARTICULAR DISCLAIMS ANY IMPLIED WARRANTIES OR Met such panto,the acceptance Of this Quotation shall not w ending upon ZOLL Skdeal Corporotdn MERCHANTABILITY OR FITNESS OF A PARTICULAR PURPOSE WITH RESPECT THERl and shall not users a comrad,unless sum acceptance is acknowledi and So pled M ZOLL Mddical Customers excluarve remeM for any seam of warranty or difea testing to the Software shell be the Corporation M s wren,zlgned by an authorized repres i ntilive of ZOLL Medial Colerstbn. War or resplacer ndat a any daedrve read.hmry memory or Other media all tlW a correctly reproduces the Software. This License applies only to ZOLL Metliml Corporation Software. M.GENERAL. Any Contract resulting from this Quotation small be governed by and iMerprekd in aoodande wit the laws of Me CommomveaHh of Massem...I. TOO co strum. the entire S.DELAYS IN DELVERY.ZOLL Medical Corporation Shall not be[.able for any data,in the dinvery,of agreement detween Buyer and Suppler who dialed to the purchase ad sale of the Products ft cr -any pan Of the Equipment it Such delay is due to any muse beyond the mnVol a the ZOLL Medical In the face need and only representations or statements contained harem shall de bidding upon Cambodian inducing,but not limited at acts of Gad finis,epic emiu,hams,oats.wan,sabotage,Wor Suppler as a warmanty or otherwise. Acceptance Or acquiescence In Me course of beffpmace s. governmental actions, Inability to When mai mmponans, manufacturing facilities or tendered Pursuant hereto shall not be relevant to determine the meaning a MIS wining wen must the tatbn Or any older cause beyond Me cony of ZOLL Medical Corporation. In addition WILL accepting or acquiescing party has knowledge of Me nature of the performance and opmnuniry,for *,%.0 Corporation shall not w liable Mr any delay in delivery mused by failure of the Customer to objedon. No addition b or modification of any Of ads terms add=WIMS Spermed herein shall be provide any nemssary infpmmon In a timely manner. In the event of my sum deny, the date of binding upon Suppler unless made in whigg and signed by a duly aunt representative Of Suppliew. shipment a performance hereunder small de edentled to the bei equal to the time lost by reason a Tat terms and mrkidws ideal shall prevail rwMrthesMMp any dmgdm from the terms and such delay. In the event Of such deal ZOLL Metlral Corporation may Stomp,available Equipment conditions of any order or other form automated by Buyer for the Products set form on the face W Me among has Customers on any reasonable and ex,are s bats. TM delivery pates set form In has Agreement To the edam Mal Me wrieg may m miaed as an acceptance Of Buyers pddr offer,sum Quotation are approximate only and ZOLL Medical Corporation small rKK W treble for or shall the a s eparue Is expressly maw mnoiuonal on assent W Buyer to the terms heed,ant,wMgN limhatim, Contract be breached by,any delivery by WILL Medical Corporation within a reawnabb time after Such acceptance a the goods by Buyer to the lends hereof,ant,without 11mdWOn,aaeptnce of the goads dale.. by Buyer shall mm lute sum asset. All mxal1glM6 ad reeled ies require a mknimum a that(30) days rolice 7nI 1 Mndieel Pnwesrsrni