PATIENT SECURITY SYSTEMS CAPITAL EQUIPMENT SUPPLIER AGREEMENT between NOVATION, LLC and eXI WIRELESS SYSTEMS, INC. (Supplier Name) CE50122 (Contract Number)
Exhibit
10.1
For
Purchases and Leases Direct From Supplier
Subject
to Competitive Bid Process
PATIENT
SECURITY SYSTEMS
between
NOVATION,
LLC
and
eXI
WIRELESS SYSTEMS, INC.
(Supplier
Name)
CE50122
(Contract
Number)
i
NOVATION,
LLC
1. Introduction.
a. Purchasing
and Leasing Opportunities for Members.
Novation, LLC (“Novation”) is engaged in providing purchasing opportunities with
respect to high quality products and services to participating health care
providers (“Members”). A list of Members entitled to participate in Novation’s
programs through their membership or other participatory status in any of
the
following client organizations: VHA Inc., University HealthSystem Consortium,
and HealthCare Purchasing Partners International, LLC (collectively, “Clients”),
is maintained in an electronic database (“Novation Database”). Novation is
acting as the exclusive agent for each of the Clients and certain of each
Client’s subsidiaries and affiliates, respectively (and not collectively), with
respect to this Agreement. Novation and the Clients and their subsidiaries
and
affiliates will not be responsible or liable for any breach of any purchasing
commitment or for any other actions of any Member. In addition, none of the
Clients will be responsible or liable for the obligations of another Client
or
its subsidiaries or affiliates or the obligations of Novation or Supplier
under
this Agreement. All Clients and Members are intended third party beneficiaries
of this Agreement.
b. Supplier.
Supplier
is the manufacturer of the equipment (“Equipment”), and/or parts and supplies
(collectively, “Supplies”), and/or the provider of services (“Services”), all as
listed on Exhibit A. The Equipment, Supplies, and/or Services are collectively
referred to herein as “Products” and any specifications are attached hereto as
Exhibit B (“Non-Price Specifications”).
2. Contract
Award.
a. Letter
of Award.
By
executing and delivering the Letter of Award attached hereto as Exhibit C
(“Award Letter”) to Supplier, Novation will have accepted your written offer to
the Invitation to Bid (“Bid”), and Novation and Supplier therefore agree that
Supplier will make the Products available for purchase to the Members as
of the
effective date (“Effective Date”) in the Award Letter in accordance with the
terms of this Agreement and for the term (“Term”) stated in the Non-Price
Specifications for any renewal terms set forth in the Non-Price Specifications
and the forms of purchase, lease, license, financing or servicing agreements,
if
any, attached hereto as Exhibit D (collectively, “Forms”); provided, however,
that Novation’s award of this Agreement to Supplier will not constitute a
commitment by any person to purchase any of the Products. Supplier will not
impose any purchasing commitment on any Member as a condition to the Member’s
purchase of any Products pursuant to this Agreement. Supplier acknowledges
that,
in making its award to Supplier, Novation has materially relied on all
representations, warranties and agreements made by Supplier as part of the
Bid
and that all such representations, warranties and agreements will survive
acceptance of the Bid.
-1-
b. Use
of Names, Etc.
Supplier
agrees that it will not use in any way in its promotional, informational
or
marketing activities or materials (i) the names, trademarks, logos,
symbols
or a description of the business or activities of Novation or any Client
or
Member without in each instance obtaining the prior written consent of the
person owning the rights thereto; or (ii) the award or the content
of this
Agreement without in each instance obtaining the prior written consent of
Novation.
c. Optional
Purchasing or Leasing Arrangements.
Supplier
shall reserve the right to contract directly with each Member for Products
included in this Agreement in exceptional circumstances; provided, however,
Supplier shall give prior notice to Novation in writing of such exceptional
circumstances and the essential terms of such agreement. Additional value
required in such exceptional cases will be defined in an individual contract
that will, at Novation’s discretion, be an exhibit to the Supplier Agreement.
Supplier shall maintain the Reporting Requirements and fees (“Fees”) payable to
Novation in Sections 5 and 7 for Products purchased through such independent
contracts in recognition of the Novation contribution to and support for
any
such exceptional independent arrangement required. In addition, Supplier
agrees
to give Novation prior written notice and must obtain Novation’s prior consent
to any proposed offer Supplier wishes to make to any Member to sell products
that are not covered by this Agreement in conjunction with Products covered
by
this Agreement under circumstances where the Member has no real economic
choice
other than to accept such terms.
d. Market
Competitive Pricing and Terms.
Price
Terms
§ Supplier
represents and warrants that the prices charged for the Products and/or Services
purchased hereunder, net of all discounts and rebates, to not exceed Supplier’s
net prices for the particular Products and/or Services charged to others
who are
the same class of purchaser as are Members and who purchase in comparable
volume
and terms of purchase. If Supplier Provides any general, “across the board”
price decreases for Products to a substantial number of its customers during
the
Term, Supplier agrees to make such decreases available to Members immediately
and in like amounts.
§ Non-price
Terms.
Supplier
will improve non-price terms, such as quality, technology or other non-price
financial value as necessary to assure market competitiveness, and in addition
Supplier agrees to adjust non-price terms for a specific Member or group
of
Members at all times in the event Supplier offers more favorable non-price
terms
to any competitor of such Member or group of Members.
If
at any
time during the Term Novation receives information from any source that
indicates Supplier’s pricing or non-price terms are not market competitive,
Novation may provide written
-2-
notice
of
such information to Supplier, and Supplier will, within five (5) business
days
for Novation’s private label Products and within ten (10) business days for all
other Products, advise Novation in writing of all adjustments necessary to
assure market competitiveness,
provided Novation provides certifiable evidence of such non-competitive pricing
such as published standard pricing from a direct competitor.
e. Notification
of Changes in Pricing Terms.
Supplier
will provide not less than sixty (60) days’ prior written notice to Novation and
not less than forty-five (45) days’ prior written notice to all Members of any
change in pricing terms (such as list prices, discounts or pricing tiers
or
schedules) permitted or required by this Agreement.
f. Underutilized
Businesses.
Certain
Members may be required by law, regulation and/or internal policy to do business
with underutilized businesses and Supplier will assist Novation in helping
Members meet these requirements by complying with all Novation policies and
programs with respect to such businesses. Novation, in its discretion, may
make
an award and/or negotiate another agreement with a HUB in addition to any
sole
or multi-source award.
g. E-Commerce
Business.
Certain
Members have chosen to utilize the service of the Marketplace@Novation™ through
Novation’s relationship with Neoforma, Inc. (“Neoforma”), to transact business
associated with this Agreement with Supplier. To assist Novation in helping
Members meet those needs, Supplier agrees to sign, prior to the issuance
of any
Award Letter, and comply with the Novation E-Commerce Agreement attached
hereto
as Exhibit F and support Novation’s programs with respect to e-commerce.
3. Product
Supply.
a. Delivery
and Invoicing.
On
and
after the Effective Date, Supplier agrees to promptly deliver Products ordered
by the Members to the Members, FOB Origin, and will direct its invoices to
the
Members in accordance with this Agreement. Supplier agrees to prepay and
add
charges to invoice, if any, for transporting Products to the Members. Payment
terms are specified in Exhibit B. Within seven (7) calendar days after receipt
of a purchase order from a Member, Supplier will provide estimated lead time
from the date of a Member’s purchase order until delivery of the Product at the
Member’s location. The actual delivery lead times may be increased by the
ordering Member based on its needs.
b. Return
or Recall of Products.
Any
Member, in addition to and not in limitation of any other rights and remedies,
will have the right to return Products to Supplier, in accordance with
Supplier’s return goods policy as stated in Exhibit B. In addition, Supplier
will reimburse Members for any cost associated with any Product corrective
action, withdrawal or recall requested by Supplier or required by any
governmental entity. In the event a product recall or a court action impacting
supply occurs, Supplier will notify Novation in writing within twenty-four
(24)
hours of any such recall or action. Supplier’s obligations in this Subsection
will survive the expiration or earlier termination of this
Agreement.
-3-
c. Supplies.
Supplies
necessary for the operation of the Equipment will be made available by Supplier
to the Members at the prices or discounts listed on Exhibit A. All warranties
and guarantees will remain in force for purchases made under this
Agreement.
d. Manuals/Schematics/Inspection
Procedures.
Supplier
will provide to the Members two complete and unabridged sets of operator
service
manuals for each model of Equipment purchased or leased, including all
subassemblies and peripheral devices manufactured by eXI. The technical service
manuals furnished to the Members will be at least as complete and comprehensive
as those furnished to Supplier’s technical service personnel. All updates to
such manuals will be provided to the applicable Members within two (2) weeks
after the release of such updates. Member must sign a Non-Disclosure Agreement
before manual will be initially released.
e. Product
Acceptance.
Upon
completion of the installation, the Equipment will meet or exceed the
specifications set forth in Supplier’s published documentation included in
Exhibit B. Acceptance testing will include, but is not limited to, safety
testing, calibration, performance testing, documentation inspection and testing
for adherence to specifications. Formal acceptance and invoice payment will
occur according to the terms agreed to between the Member and Supplier and
the
specified scope of work. A complete set of all test documentation and procedures
will be made available to the Member prior to final acceptance. If the Equipment
passes the acceptance testing, the Warranty Period for the Equipment will
begin
per the terms of Supplier’s Warranty.
f. Site
Preparation.
Supplier
will provide the Members with a specific description of pre-installation
planning and site preparation services and site preparation costs at the
time
the Member requests a quote from Supplier.
g. Installation/Assembly.
When
Member requests a quote from Supplier, Supplier will provide as part of the
quote a scope of work for the installation to be performed by the authorized
eXI
Dealer in the local area.
h. Installation/Environmental
Issues.
Supplier
will bear all costs associated with the removal of packaging, crating and
other
material associated with the installation of the Equipment. Supplier, at
the
discretion of the Member, will remove the retired equipment at a cost previously
agreed to with the Member, including any expenses associated with the proper
disposal of hazardous or other wastes.
i. Member
Services.
Supplier
will consult with each Member to identify the Member’s policies relating to
access to facilities and personnel. Supplier will comply with such policies
and
will establish a specific timetable for sales calls by sales representatives
and, if applicable, service calls by service representatives, to satisfy
the
needs of the Member. Supplier will promptly respond to Members’ reasonable
requests for verification of purchase or leasing history.
-4-
j. Training.
Members
may attend eXI technical service training school at no charge, however members
are responsible for all travel and out of pocket expenses. Supplier will
also
allow the Member to reproduce all training material for use by the Member’s
personnel at the Member’s facility. In addition, Supplier will provide the
initial in-service training for both operators and technical service staff
of
the Member at the Member’s site as part of the installation price for the
system. Supplier will provide follow-up in-service training as mutually agreed
with the Member for the life of the Equipment at a negotiated
price.
4. Product
Quality.
a. Free
From Defects.
Supplier
warrants the Products, including, but not limited to, all attachments,
subsystems and components thereof, against defects in material, workmanship,
design and manufacturing for the warranty period set forth in Exhibit E attached
hereto (“Warranty Period”). Supplier will make all necessary arrangements to
assign such warranty to the Members. Supplier further represents and warrants
that the Products will conform to the specifications, drawings, and samples
furnished by Supplier or contained in the Non-Price Specifications and will
be
safe for their intended use. eXI Warranty terms will apply.
b. New
Technology.
|
|
(i)
During the Term, Supplier will disclose to Novation new technology
developed by Supplier which provides the same function as the Products.
Upon troduction of the new technology by Supplier, each
Member will
be provided the option to exchange any Product purchased hereunder
for the
new technology upon the terms and conditions set forth in Exhibit
B
attached hereto. In the event Supplier fails to provide such option
to the
Members, (1) Novation will have the right to terminate any or all
of the
Products which have been superceded by such new technology providing
the
same function as the Products or (2) Novation may elect at its
discretion
to contract with one or more additional suppliers of comparatively
similar
new technology.
|
|
|
(ii)
If
at any time during the Term new technology (as defined by a Novation
Council) a product becomes available from any source which provides
incremental patient care benefits and/or incremental safety benefits
over
technology currently available under this Agreement, Novation shall
provide written notice of such information to Supplier and may
elect to
contract with a third party vendor, or terminate the Agreement
and re-bid
the category so Members have access to New Technology at all times.
Such
action will not constitute a breach of this Agreement by
Novation.
|
c. Warranty
Service.
Warranty
repairs will be per the eXI Warranty policy provided in Exhibit E.
d. Replacement
Parts.
Replacement
parts supplied by Supplier at any time, whether during or after the Warranty
Period or the term of any service agreement, will be newly manufactured parts
or
assemblies, unless the Member agrees otherwise. In the case where
new
-5-
parts
are
not available, the service representative may install rebuilt parts in order
to
make the unit operational. Within thirty (30) days after the repair, the
rebuilt
parts must be replaced with newly manufactured parts. The Member may retain
all
parts that are not eligible for or are not returned by the Member for Supplier
credit will remain the property of the Member. In all cases where Supplier
is
permitted to charge the Member for parts, Supplier will only replace and
charge
for parts necessary to bring the Equipment to operating condition. Supplier
will
warrant replacement parts and labor associated with such replacement parts
for
the period of time set forth in Supplier’s standard warranty.
e. Service
Response Time.
Supplier
guarantees a response time of one (1) hour by phone and for on-site as
agreed to
by the Member for all warranty, contract or time and materials service
calls
requested by any Member during the life of the Equipment. The Supplier’s
authorized dealer providing local service will provide first-level
support.
f. Uptime
Guarantee. For
any
calendar quarter during the Warranty Period and the term of any service
agreement, Supplier guarantees that the Exit infrastructure will maintain
a
level of uptime equal to or better than 95%. Uptime will be calculated
using the
following formula:
uptime
=
(T
- TNF) X 100
T
where
“T”
is the total number of hours that the eXI infrastructure is typically used
per
quarter (determined by multiplying the number of hours per day that the
eXI
infrastructure is typically used by the number of days per week that the
eXI
infrastructure is typically used, and multiplying the result by 13 weeks
in a
quarter), and “TNF” is the number of hours the eXI infrastructure or any
component of the eXI infrastructure is not functional during the quarter
(the
hours calculated will only include those hours that the eXI infrastructure
would
typically be in use). If any portion of the total functionality of the
eXI
infrastructure is unavailable for operational use, the eXI infrastructure
will
be considered down. Downtime scheduled for preventive maintenance or any
other
scheduled event, including those for the convenience of Member, will not
be
included in the downtime calculation. Member will calculate uptime after
each
calendar quarter. Supplier will extend the Warranty Period or the service
agreement without charge by one day for every day the eXI infrastructure
or
component thereof is not operational beyond the allowable 5%. This uptime
guarantees only relates to the performance of the Supplier’s Products. Downtime
cause by electrical or mechanical interference cause by other type of equipment
such as other radio frequency generating equipment, monitors, microwaves,
etc.
is not covered by this uptime guarantee.
g. Preventive
Maintenance.
During
the Warranty Period for fixed equipment, Supplier will perform preventive
maintenance according to the manufacturer’s recommendations at no charge to the
Member. Supplier will supply the Member with a written procedure that will
be
followed by Supplier’s representative during the preventive maintenance process.
Reasonable additional testing will be performed by Supplier at a charge
to the
Member, upon request, to meet the requirements of procedures developed
by the
Member. The frequency of preventive maintenance and tests performed will
comply
with the manufacturer’s recommendations,
-6-
external
codes (state, JCAHO, etc.), and all internal policies developed by the
Member.
During the Warranty Period, Supplier will provide preventive maintenance
after
hours at a cost agreed to with the Member. This does not include required
system
operational duties such as system backups and functional testing.
h. Upgrades.
A list
of optional software available from Supplier, including costs for the software
both during the Warranty Period and after the Warranty Period, is attached
hereto as Exhibit A. Since software upgrade are sometimes customized to
meet a
specific need, Members will be given the option of acquiring this software
if
they elect to upgrade the system at the discounts provide for in this Agreement.
If a Software Maintenance Agreement (SMA) is purchased with system, software
upgrades will be provided at no charge for the duration of the SMA. Labor
charges for installing software upgrades are not included in the
SMA.
i. Customization
Software.
Pricing
relating to the customization of software and additional charges that the
Member
will incur for annual maintenance, training, documentation, backup, etc.
is
attached hereto as Exhibit A.
j. Operational
Software. The form of software licensure
agreements available to the Members will be included as part of any quote
requested by a Member. All software necessary to operate the Equipment,
unless
otherwise provided in any exhibit hereto, will be licensed to the Member
upon
acceptance of the Equipment pursuant to Subsection 3.f. above. If a SMA
is
purchased with the system, software upgrades will be provided at no charge
for
the duration of the SMA. Any new operational software that provides additional
functionality must be submitted to Novation as an addition to Exhibit A.
New
software will be installed as scheduled with facility.
k. Diagnostic
Software.
Not
applicable, Infant Protection Systems/Wandering Patient Systems do not
require
diagnostic software.
l. Data
Conversion/Interfaces.
Typically, systems to not require conversion of data, they operate on a
stand-alone basis. Interfaces to other information systems may be quoted
on a
custom basis, and will not be part of this agreement.
m. Service
Contract Cancellation.
Service
contracts are provided through Supplier’s authorized dealers. Terms of the
service contract with the authorized dealer will apply.
n. Product
Compliance.
Supplier
represents and warrants to Novation, the Clients and the Members that the
Products are, if required, registered, and will not be distributed, sold,
leased
or priced by Supplier in violation of any federal, state or local law.
Supplier
represents and warrants that as of the date of delivery to the Members
all
Products will not be adulterated or misbranded within the meaning of the
Federal
Food, Drug and Cosmetic Act and will not violate or cause a violation of
any
applicable law, ordinance, rule, regulation or order. Supplier agrees it
will
comply with all applicable Good Manufacturing Practices and Standards contained
in 21 C.F.R. Parts 210, 211, 225, 226, 600, 606, 610, 640, 660, 680 and
820.
Supplier represents and warrants that it will provide adequate warnings
and
instructions to inform users of the Products of the risks, if any, associated
with the use of the Products. Supplier’s representations,
warranties
-7-
and
agreements in this Subsection will survive the expiration or earlier termination
of this Agreement.
o. Product
Condition.
Unless
otherwise stated in the Non-Price Specifications or unless agreed upon
by a
Member in connection with Products it may order, all Products will be
new.
Products, which are demonstrators, used, obsolete, seconds, or which
have been
discontinued are unacceptable unless otherwise specified in the Non-Price
Specifications or the Member accepts delivery after receiving notice
of the
condition of the Products. A description of and pricing for demonstrators
or
refurbished Products is attached hereto as Exhibit A.
5. Reports and
Other
Information
Requirements. Within
twenty (20) days after the end of each full and partial quarter during
the Term
(“Reporting Quarter”), Supplier will submit to Novation a Sales report in form
and content reasonably satisfactory to Novation (“Net Sales Report”) and any
other information during the time period required as set forth in the
Information Requirements Guidebook. Such Guidebook may be found at the
Novation
website at ▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇.
6. Obligations
of Novation.
a. Information
to Members.
After
issuing the Award Letter, Novation, in conjunction with the Clients, will
deliver a summary of the purchasing and/or leasing arrangements covered
by this
Agreement to each Member and will, from time to time, at the request of
Supplier, deliver to each Member reasonable and appropriate amounts and
types of
materials supplied by Supplier to Novation which relate to the purchase
or lease
of the Products.
b. Marketing
Services.
Novation, in conjunction with the Clients, will market the purchasing and/or
leasing arrangements covered by this Agreement to the Members. Such promotional
services may include, as appropriate, the use of direct mail, contact by
Novation’s field service delivery team, member support services, and regional
and national meetings and conferences. As appropriate, Novation, in conjunction
with the Clients, will involve Supplier in these promotional activities
by
inviting Supplier to participate in meetings and other reasonable networking
activities with Members.
7. Fees.
a. Calculation.
Supplier
will pay to Novation, as the authorized collection agent for each of the
Clients
and certain of each Client’s subsidiaries and affiliates, respectively (and not
collectively), Fees belonging to any of the Clients or certain of their
subsidiaries or affiliates equal to the Agreed Percentage of all Net Sales
of
the Products to the Members directly or indirectly from Supplier, whether
under
the pricing and other terms of this Agreement or under the terms of any
other
purchasing or pricing arrangements that may exist between the Members and
Supplier. As used herein, Net Sales shall mean invoiced sales of Products
less
related Product returns. The “Agreed Percentage” will be defined in the Award
Letter.
-8-
b. Payment.
Supplier
will submit fees on all net sales within twenty (20) days of the close
of any
calendar quarter during the term of this agreement.
Fee
checks must be made payable to Novation,
LLC
and sent
to:
If
Sent
By First
Class Mail:
Novation,
LLC
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
Chicago,
IL 60675-1420
If
Sent
Via Courier (i.e.,
Federal Express, United Parcel Service, Messenger):
The
Northern Trust Company
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Receipt
& Dispatch 8th
Floor
Chicago,
IL 60654
Attn:
Novation, LLC, Lockbox Number 1420
Telephone
No. (▇▇▇) ▇▇▇-▇▇▇▇
On
the
airbill please remember to list the bank’s telephone number, as recipient at
this location. You should also include your telephone number as the
sender.
IMPORTANT
REMINDER: ALL
checks
for Fees should be made payable to Novation,
LLC,
regardless of whether they are sent first-class mail or by courier. Under
no circumstances should checks be made payable to The Northern Trust
Company.
8. Compliance
With Law and Government Program Participation.
a. Compliance
With Law.
Supplier
represents and warrants that to the best of its knowledge, after due inquiry,
it
is, and for the Term shall be, in compliance with all federal, state and
local
statutes, laws, ordinances and regulations applicable to it (“Legal
Requirements”) which are material to the operation of its business and the
conduct of its affairs, including Legal Requirements pertaining to the
safety of
the Products, occupational health and safety, environmental protection,
nondiscrimination, antitrust, and equal employment opportunity. In the
event of
Supplier’s failure to comply with the foregoing, Novation will have the right to
immediately terminate any or all of the Product(s) subject to such failure,
with
notice to Supplier, or to terminate this Agreement in its entirety pursuant
to
Section 12.a. During
the Term, Supplier will: (1) promptly notify Novation of any lawsuits,
claims, administrative actions or other proceedings asserted or commenced
against it which assert in whole or in part that Supplier is in noncompliance
with any Legal Requirement which is material to the operation of its business
and the conduct of its affairs and (2) promptly provide Novation
with true
and correct copies of all written notices of adverse findings from the
U.S. Food
and Drug Administration (“FDA”) and all written results of FDA inspections which
pertain to the Products.
b. Government
Program Participation.
Supplier
represents and warrants that it is not excluded from participation, and
is not
otherwise ineligible to participate, in a “Federal health care program” as
defined in 42 U.S.C. §
1320a-7b(f) or in any other government payment
-9-
program.
In the event Supplier is excluded from participation, or becomes otherwise
ineligible to participate in any such program during the Term, Supplier
will
notify Novation in writing within three (3) days after such event, and
upon the
occurrence of such event, whether or not such notice is given to Novation,
Novation may immediately terminate this Agreement upon written notice to
Supplier.
9.
Insurance.
a. Policy
Requirements.
Supplier
will maintain and keep in force during the Term product liability, general
public liability, and property damage insurance against any insurable claim
or
claims, which might or could arise regarding Products, purchased or leased
from
Supplier. Such insurance will contain a minimum combined single limit of
liability for bodily injury and property damage in the amounts of not less
than
$1,000,000 per occurrence and $3,000,000 in the aggregate After award of
contract, Supplier will provide to Novation within fifteen (15) days after
Novation’s request, an insurance certificate indicating the foregoing coverage,
issued by an insurance company licensed to do business in the relevant
states
and signed by an authorized agent.
b. Self-Insurance.
Notwithstanding anything to the contrary in Subsection a. above,
Supplier
may maintain a self-insurance program for all or any part of the foregoing
liability risks, provided such self-insurance policy in all material respects
complies with the requirements applicable to the product liability, general
public liability and property damage insurance set forth in Subsection a.
c. Amendments,
Notices and Endorsements.
Supplier
will not amend, in any material respect that affects the interests of Novation,
the Clients or the Members, or terminate said liability insurance or
self-insurance program except after thirty (30) days’ prior written notice to
Novation and will provide to Novation copies of all notices and endorsements
as
soon as practicable after it receives or gives them.
10. Release
and Indemnity. Supplier will release, indemnify, hold harmless, and, if
requested, defend Novation, the Clients and the Members, and their respective
officers, directors, regents, agents, subsidiaries, affiliates and employees
(collectively, the “Indemnitees”), from and against any claims, liabilities,
damages, actions, costs and expenses (including, without limitation, reasonable
attorneys’ fees, expert fees and court costs) of any kind or nature, whether at
law or in equity,
arising
from or caused in any part by (1) the breach of any representation, warranty,
covenant or agreement of Supplier contained in this Agreement or in the
Bid; (2)
the condition of any Product, including a defect in material, workmanship,
design or manufacturing; or (3) the warnings and instructions associated
with
any product.
Such
indemnification, hold harmless and right to defense will not be applicable
to
the extent the claim, liability, damage, action, cost or expense arises
as a
result of an act or failure to act of Indemnitees. In addition, Supplier
represents and warrants that sale or use of the products will not infringe
any
United States patent and will, at its
-10-
own
expense, defend every suit which will be brought against Novation or a
member
for any alleged infringement of any patent by reason of the sale or use
of the
products and will pay all costs, damages and profits recoverable in any
such
suit. This
Section and the obligations contained herein will survive the expiration
or
earlier termination of this Agreement. The remedies set forth in this Section
are in addition to and not a limitation on any other rights or remedies
that may
be available against Supplier.
11. Books
and Records; Facilities Inspections.
Supplier
agrees to keep, maintain and preserve complete, current and accurate books,
records and accounts of the transactions contemplated by this Agreement
and such
additional books, records and accounts as are necessary to establish and
verify
Supplier’s compliance with this Agreement. All such books, records and accounts
will be available for inspection and audit by Novation representatives
at any
time during the Term and for two (2) years thereafter, but only during
reasonable business hours and upon reasonable notice. Novation agrees that
its
routine audits will not be conducted more frequently than twice in any
consecutive twelve (12) month period, subject to Novation’s right to conduct
special audits whenever it deems it to be necessary. In addition, Supplier
will
make its manufacturing and packaging facilities available for inspection
from
time to time during the Term by Novation representatives, but only during
reasonable business hours and upon reasonable notice. The exercise by Novation
of the right to inspect and audit is without prejudice to any other or
additional rights or remedies of either party.
12. Termination.
Either
party may terminate this Agreement at any time for any reason whatsoever
by
delivering not less than ninety (90) days’ prior written notice thereof to the
other. In addition, either party may terminate this Agreement immediately
by
delivering written notice thereof to the other upon the occurrence of either
of
the following events:
(a) The
other
party breaches this Agreement and does not cure such breach within thirty
(30)
days of receipt of such notice, except for Supplier’s monetary breach or breach
of Compliance with Laws, for which a cure period shall not be allowed;
or
(b) The
other
party becomes bankrupt or insolvent or makes an unauthorized assignment
or goes
into liquidation or proceedings are initiated for the purpose of having
a
receiving order or winding up order made against it or the other party
and
applies to the courts for protection from its creditors.
13. Confidential
Information.
a. Nondisclosure.
Supplier
agrees that it will:
| (1) keep strictly confidential and hold in trust all Confidential Information, as defined in Subsection 13.b. below, of Novation, the Clients and the Members; |
-11-
|
|
(2) not
use the Confidential Information for any purpose other than
the
performance of its obligations under this Agreement, without
the prior
written consent of Novation;
|
| (3) not disclose the Confidential Information to any third party (unless required by law) without the prior written consent of Novation; and | |
|
|
(4) not
later than thirty (30) days after the expiration or earlier
termination of
this Agreement, return to Novation, the Client or the Member,
as the case
may be, the Confidential
Information.
|
b. Definition.
“Confidential
Information,” as used in Subsection 13.a. above, will consist of all
information relating to the prices and usage of the Products (including
all
information contained in the reports produced by Supplier pursuant to
Section 5 above) and all documents and other materials of Novation,
the
Clients and the Members containing information relating to the programs
of
Novation, the Clients or the Members of a proprietary or sensitive nature
not
readily available through sources in the public domain.
c.
HIPAA.
If a
Member determines, in its sole reasonable discretion, that Supplier is
a
“business associate,” as that term is defined in the privacy rules promulgated
pursuant to The Health Insurance Portability and Accountability Act of
1996
(“HIPAA”) codified at 42 CFR Parts 160 and 164, Supplier will negotiate with
Member a mutually acceptable written agreement which will govern Supplier’s
access to “protected health information” as defined under HIPAA (a “Business
Associate Contract”).
14. Miscellaneous.
a. Choice
of Law.
This
Agreement will be governed by and construed in accordance with the internal
substantive laws of the State of Delaware and the Delaware courts will
have
jurisdiction over all matters relating to this Agreement; provided, however,
the
terms of any agreement between Supplier and a Member will be governed
by and
construed in accordance with the choice of law and venue provisions set
forth in
such agreement.
b. No
Assignment. No
assignment of all or any part of this Agreement may be made without the
prior
written consent of the other party. As used herein, “assignment” shall mean a
transfer by virtue of operation of law, under an order of any court, or
pursuant
to any plan of merger, consolidation or sale of stock or assets. Any assignment
of all or any part of this Agreement by either party will not relieve that
party
of the responsibility of performing its obligations hereunder to the extent
that
such obligations are not satisfied in full by the assignee. This Agreement
will
be binding upon and inure to the benefit of the parties’ respective successors
and assigns.
c. Notices.
Except
as otherwise expressly provided herein, all notices or other communications
required or permitted under this Agreement will be in writing and will
be
-12-
deemed
sufficient when mailed by United States mail, or delivered in person to
the
party to which it is to be given, at the address of such party set forth
below:
If
to
Supplier:
eXI
Wireless Systems, Inc.
Attn:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Suite
100-▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Richmond,
BC, Canada V6V 2L1
If
to
Novation:
Novation
Attn:
General Counsel
▇▇▇
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Freeway
Irving,
TX 75062-2324
Or
such
other address as the party will have furnished in writing in accordance
with the
provisions of this Subsection.
d. Severability.
Whenever
possible, each provision of this Agreement will be interpreted in such
a manner
as to be effective and valid under applicable law, but if any provision
of this
Agreement will be prohibited by or invalid under applicable law, such provision
will be ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions
of this
Agreement. Each party will, at its own expense, take such action as is
reasonably necessary to defend the validity and enforceability of this
Agreement
and will cooperate with the other party as is reasonably necessary in such
defense.
e. Entire
Agreement.
This
Agreement, together with the exhibits listed below, will constitute the
entire
agreement between Novation and Supplier. This Agreement, together with
the
exhibits listed below and each Member’s purchase and/or lease order and/or other
applicable Form will constitute the entire agreement between each Member
and
Supplier. In the event of any inconsistency between this Agreement and
a
Member’s purchase and/or lease order and/or other applicable Form, the terms of
this Agreement will control, except that the Member’s purchase and/or lease
order and/or other applicable Form will supersede Sections 3 and 4 of this
Agreement in the event of any inconsistency with such Sections. No other
terms
and conditions in any document, acceptance, or acknowledgment will be effective
or binding unless expressly agreed to in writing. The following exhibits
are
incorporated by reference in this Agreement:
Exhibit
A Product
and Service Description and Pricing
Exhibit
B Non-Price
Specifications
Exhibit
C Award
Letter
-13-
Exhibit
D Forms
of
Purchase, Lease, License, Financing and/or Service Agreements
Exhibit
E Warranty
Exhibit
F Neoforma
Master Supplier Agreement
SUPPLIER:
eXI
Wireless Systems, Inc.
ADDRESS:
Suite
▇▇▇
- ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Richmond,
BC V6V 2L1
SIGNATURE:
/s/ ▇▇▇▇ ▇▇▇▇▇▇
TITLE:
President DATE:
April 18, 2005
-14-