HomeMy Public PortalAbout134-2023 - Pediatric Emergency Standards Inc. - licensing and software training PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT made and entered into this day of ...06 2023, and
referred to as [Revised] Contract No. 134-2023, by and between the City of Richmond, Indiana,
a municipal corporation acting by and through its Board of Public Works and Safety, 50 North 5th
Street, Richmond, Indiana, 47374 (hereinafter referred to as the "City"), and Pediatric
Emergency Standards Inc., 11870 W. State Road 84, Suite C.5,Davie, F]orida, 33325 (hereinafter
referred to as the "Contractor").
SECTION I. STATEMENT AND SUBJECT OF'WORK
City hereby retains Contractor to provide professional consulting, training, licensing, and
medication management software implementation services to the Richmond Fire Department for
a Handtevy pediatric system of care which combines technology and documentation
customization and integration, durables (DME), and education allowing healthcare professionals
to confidentially treat pediatric patients, which services are more fully described on Contractor's
proposal. Contractor shall perform all services and provide all licensing described on
Contractor's proposal marked as "Exhibit A" which exhibit consists of six (6) pages, and was
received May 23, 2023, and which is attached hereto and made a part hereof
This purchase and/or project is undertaken in response to the public health emergency and/or
negative economic impacts resulting from the pandemic. Resources dedicated to this purchase
and/or project fight the pandemic, sustain and strengthen the economic recovery, maintain vital
public services and make investments that support long-term growth, opportunity, and equity.
Should any provisions, terms, or conditions contained in any of the documents attached hereto as
Exhibits, or in any of the documents incorporated by reference herein, conflict with any of the
provisions, terms, or conditions of this Agreement, this Agreement shall be controlling.
Contractor shall perform all work herein in a timely manner, conforming to all applicable
professional standards.
The Contractor shall furnish all labor, material, equipment, and services necessary for the proper
completion of all work specified.
[Revised] Contract No. 134-2023
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No performance of services shall commence until the following has been met:
1. The City is in receipt of any required certificates of insurance;
2. The City is in receipt of any required affidavit signed by Contractor in
accordance with Indiana Code 22-5-1.7-11(a)(2); and
3. A purchase order has been issued by the Purchasing Department.
SECTION H. STATUS OF CONTRACTOR
Contractor shall be deemed to be an independent contractor and is not an employee or agent of
the City of Richmond. The Contractor shall provide, at its own expense, competent supervision
of the work.
SECTION III. COMPENSATION
City shall pay Contractor a total amount not to exceed Eleven Thousand Six Hundred Eight
Dollars and Fourteen Cents ($11,608.14) for the software support and licensing services and for
the complete performance of all work described herein in a satisfactory and proper manner.
SECTION IV.TERM OF AGREEMENT
This Agreement shall be effective when signed by all parties and shall continue in effect until
completion of the Project and training.
Notwithstanding the term of this Agreement, City may terminate this Agreement in whole or in
part, for cause, at any time by giving at least five (5) working days written notice specifying the
effective date and the reasons for termination which shall include but not be limited to the
following:
a. failure, for any reason of the Contractor to fulfill in a timely mariner
its obligations under this Agreement;
b. submission of a report, other work product, or advice, whether oral or written, by the
Contractor to The City that is incorrect, incomplete, or does not meet reasonable
professional standards in any material respect;
c. ineffective or improper use of funds provided under this Agreement;
d. suspension or termination of the grant funding to the City under which this Agreement
is made; or
e. unavailability of sufficient funds to make payment on this Agreement.
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In the event of such termination, the City shall be required to make payment for all work
performed prior to the date this Agreement is terminated, but shall be relieved of any other
responsibility herein.
This Agreement may also be terminated, in whole or in part, by mutual Agreement of the parties
by setting forth the reasons for such termination, the effective date, and in the case of partial
termination,the portion to be terminated.
This Agreement may also be terminated by the City if a force-majeure event occurs and the
results or aftereffects of said event causes the performance of this Agreement to become
impossible or highly impracticable. Said event or results or aftereffects of said event would
include events or effects which the parties to this Agreement could not have anticipated or
controlled. Examples of a force-majeure event, or its results, would include, but would not be
limited to, events such as an Act of God, an Act of Nature, an Act of Law, or an Emergency Act
of Executive Enforcement of the Federal government, the State of Indiana, or local government.
SECTION V. INDEMNIFICATION AND INSURANCE
Contractor agrees to obtain insurance and to indemnify the City for any damage or injury to
person or property or any other claims which may arise from the Contractor's conduct or
performance of this Agreement, either intentionally or negligently; provided, however, that
nothing contained in this Agreement shall be construed as rendering the Contractor liable for acts
of the City, its officers, agents, or employees. Contractor shall as a prerequisite to" this
Agreement,purchase and thereafter maintain such insurance as will protect it from the claims set
forth below which may arise out of or result from the Contractor's operations under this
Agreement, whether such operations by the Contractor or by any sub-contractors or by anyone
directly or indirectly employed by any of them, or by anyone for whose acts the Contractor may
be held responsible.
Coverage Limits
A. Worker's Compensation & Statutory
Disability Requirements
B. Employer's Liability $100,000
C. Comprehensive General Liability
Section 1. Bodily Injury $1,000,000 each occurrence
di2,000,000 aggregate
Section 2. Property Damage $1,000,000 each occurrence
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D. Comprehensive Auto Liability
Section 1. Bodily Injury and
Property Damage $1,000,000 each accident
E. MalpracticeiErrors & Omissions Insurance $3,000,000 each occurrence
$1,000,000 each aggregate
F. Cyber Liability $1,000,000 each aggregate
SECTION VI. COMPLIANCE WITH WORKER'S COMPENSATION LAW
Contractor shall comply with all provisions of the Indiana Worker's Compensation law, and
shall, before coimnencing work under this Agreement, provide the City a certificate of insurance,
or a certificate fro, the industrial board showing that the Contractor has complied with Indiana
Code Sections 22-3-2-5, 22-3-5-1 and 22-3-5-2. If Contractor is an out of state employer and
therefore subject to another state's worker's compensation law, Contractor may choose to
comply with all provisions of its home state's worker's compensation law and provide the City
proof of such compliance in lieu of complying with the provisions of the Indiana Worker's
Compensation Law,.
SECTION VII, COMPLIANCE WITH INDIANA E-VERIFY PROGRAM REQUIREMENTS
Pursuant to India 4, Code 22-5-1.7, Contractor is required to enroll in and verify the work
eligibility status of all newly hired employees of the contractor through the Indiana E-Verify
program. Contractor is not required to verify the work eligibility status of all newly hired
employees of the contractor through the Indiana E-Verify program if the Indiana E-Verify
program no longer exists. Prior to the performance of this Agreement, Contractor shall provide
to the City its signed Affidavit affirming that Contractor does not knowingly employ an
unauthorized alien in accordance with IC 22-5-1.7-11 (a) (2). In the event Contractor violates IC
22-5-1.7 the Contractor shall be required to remedy the violation not later than thirty (30) days
after the City notifies the Contractor of the violation. If Contractor fails to remedy the violation
within the thirty (30) day period provided above, the City shall consider the Contractor to be in
breach of this Agreement and this Agreement will be terminated. If the City determines that
terminating this Agreement would be detrimental to the public interest or public property, the
City may allow this Agreement to remain,in effect until the City procures a new contractor. If
this Agreement is terminated under this section, then pursuant to IC 22-5-1.7-13 (c) the
Contractor will remain liable to the City for actual damages.
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SECTION VIII. IRAN INVESTMENT ACTIVITIES
Pursuant to Indiana Code (IC) 5-22-16.5, Contractor certifies that Contractor is not engaged in
investment activities in Iran. In the event City determines during the course of this Agreement
that this certification is no longer valid, City shall notify Contractor in writing of said
determination and shall give contractor ninety (90) days within which to respond to the written
notice. In the event Contractor fails to demonstrate to the City that the Contractor has ceased
investment activities in Iran within ninety (90) days after the written notice is given to the
Contractor, the City may proceed with any remedies it may have pursuant to IC 5-22-16.5. In
the event the City determines during the course of this Agreement that this certification is no
longer valid and said determination is not refuted by Contractor in the manner set forth in IC 5-
22-16.5, the City reserves the right to consider the Contractor to be in breach of this Agreement
and terminate the agreement upon the expiration of the ninety (90) day period set forth above.
SECTION I . PROHIBITION AGAINST DISCRIMINATION
A. Pursuant to Indiana Code 22-9-1-10, Contractor, any sub-contractor, or any person acting
on behalf of Contractor or any sub-contractor shall not discriminate against any employee
or applicant for employment to be employed in the performance of this Agreement, with
respect to hire, tenure, terms, conditions or privileges of employment or any matter
directly or indirectly related to employment, because of race, religion, color, sex, .
disability, national origin,or ancestry.
B. Pursuant to Indiana Code 5-16-6-1, the Contractor agrees:
1. That in the hiring of employees for the performance of work under this
Agreement of any subcontract hereunder, Contractor, any subcontractor, or any
person acting on behalf of Contractor or any sub-contractor, shall not discriminate
by reason of race, religion, color, sex, national origin or ancestry against any
citizen of the State of Indiana who is qualified and available to perform the work
to which the employment relates;
2. That Contractor, any sub-contractor, or any person action on behalf of Contractor
or ay sub-contractor shall in no manner discriminate against or intimidatr any
employee hired for the performance of work under this Agreement on account of
race,religion, color, sex, national origin or ancestry;
3. That there may be deducted from the amount payable to Contractor by the City
under this Agreement, a penalty of five dollars ($5.00) for each person for each
calendar day during which such person 'was discriminated against or intimidated
in violation of the provisions of the Agreement; and
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4. That this Agreement may be canceled or terminated by the City and all money
due or to become due hereunder may be forfeited, Ibr a second or any subsequent
violation of the terms or conditions of this section of the Agreement.
C. Violation of the terms or conditions of this Agreement relating to discrimination or
intimidation shall be considered a material breach of this Agreement.
SECTION X. MISCELLANEOUS
This Agreement is personal to the parties hereto and neither party may assign or delegate any of
its rights or obligations hereunder without the prior written consent of the other party. Any such
delegation or assignment, without the prior written consent of the other party, shall be null and
void. This Agreement shall be controlled by and interpreted according to Indiana law and shall
be binding upon the parties, their successors and assigns. This document constitutes the entire
Agreement between the parties, although it may be altered or amended in whole or in part at any
time by filing with the Agreement a written instrument setting forth such changes signed by both
parties. By executing this Agreement the parties agree that this document supersedes any
previous discussion, negotiation, or conversation relating to the subject matter contained herein.
This Agreement may be simultaneously executed in several counterparts, each of which shall be
an original and all of which shall constitute but one and the same instrument.
The parties hereto submit to jurisdiction of the courts of Wayne County, Indiana, and any suit
arising out of this Contract must be filed in said courts. The parties specifically agree that no
arbitration or mediation shall be required prior to the commencement of legal proceedings in said
Courts. By executing this Agreement, Contractor is estopped from bringing suit or any other
action in any alternative forum, venue, or in front of any other tribunal, court, or administrative
body other than the Circuit or Superior Courts of Wayne County, Indiana, regardless of any right
Contractor may have to bring such suit in front of other tribunals or in other venues.
Any person executing this Contract in a representative capacity hereby warrants that he/she has
been duly authorized by his or her principal to execute this Contract.
In the event of any breach of this Agreement, each Party shall be responsible for its own
attorney's fees. Notwithstanding this, in the event a lawsuit occurs due to a breach of this
Agreement and a breaching Party is found to be responsible for said breach, said breaching Party
shall be liable to the non-breaching Party for all costs incurred by the non-breaching Party in its
reasonable efforts to enforce this Agreement, including but not limited to the non-breaching
Party's reasonable attorney's fees. The same shall be in addition to any other damages or
remedies available to the non-breaching Party.
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In the event that an ambiguity, question of intent, or a need for interpretation of this Agreement
arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption
or burden of proof iall arise favoring or disfavoring any party by virtue of the authorship of any
of the provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement at Richmond, Indiana, as of
the day and year first written above, although signatures may be affixed on different dates.
"CONTRACTOR"
"CITY" PEDIATRIC EMERGENCY
THE CITY OF RICHMOND, STANDARDS INC.
INDIANA by and through its 11870 W. State Road 84, Suite C5
Board of Publ.; Works and Safety Davie, FL 33325
By:
By:
Vicki Robinson, President
r\\,,
Printed:
By:
Emily Palmer, Member YA,
k I
Title: 1 tz ck
By:
Matt Evans, Member
Date:
Date: j
APPROVED:
Dawd Sno ,Major
Date: 16 a 2, 5
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t11t' ha n tev
v • •
Company info: Pediatric)Emergency Standards, inc, Expiration Date: 7/31/2023
11870 State Rd 84 Suite C5 Quote Number: Q-06180
Davie,FL 33325
Phone: (954)944-1114
FAX: (964)653-3792
Account Name: Richmond Fire Department Client Contact: Albert Dennis
Account#: 101241 Account Rep: Jessica Barrios
Bill To: ' 101 South 5th Street Ship To: 101 South 6th Street
Richmond,Indiana 47374 Richmond,Indiana 47374
Product Description Quantity List Price Unit Price Total
Code
HMPS23 Customization and Setup for Handtevy Mobile 1.000 $1,690.00 $1,690.00 $1,690.00
HMPA22 Annual ccesa to Handtevy Mobile.Access to Medication 1,000 $5,655.00 $5,655.00 $5,655,00 °
Management Software,Unlimited Updates Included,
Clinical and TechrRical support
HP«*+r4 Length-ba.:«measuring tape 6.000 $50.00 $60.t t $300.00
HPB011 Custom =d Medication&Equipment Guides 6.000 $150.00 $160.00 $900.00
HPB6100 Each Pediatric Bag includes: 6.000 $490.00 $490.00 $2,940.00
7 Equipment Pouches
Side Compartment Organizer
Subtotal $11,485.00
Total Price $11,485.00
Tax $0.00
Shipping and Handling $123.14
Total $11,608.14
To place an order,please email or fax a copy of the signed Quote and Purchase Order to:S: =s, wHandtevy,cora or(954)653.3792.
PES requires execution of a Purchase Order for all spies above$5,000 before applicable freight and taxes.The undersigned,on behalf
of Customer,repres= that he or she has the authority to sign this Quote and/or Purchase Order,and is bound hereby and agrees
to the terms,conditions and pricing denoted and attached. Taxes,shipping and handling fees are estim s only and are subject to
change at the time of order. Customer may provide PES with a tax exemption certificate,if applicable.
It Is our customers responsibility to provide the most up-to-date and accurate protocol set.Additional fees will apply in the event a
protocol set was submitted in error once customization has been initiated.
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EXHIBITT1 PAGE k ,OF A
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L PEDIATRIC EMERGENCY STANDARDS,INC.
TERMS AND CONDITIONS
- _
I. DEFINITIONS.
a. "Agreement."The Quote,these Terms and Conditions,and the Purchase updating of the Customized Offerings when Customer or its medical staff;
Order or the signed Quote and these Terms and Conditions shall constitute employees and/or contractors make modifications to Customer's Protocols,
an agreement of the parties and be collectively referred to as the
"Agreement" c. Improvement,.Customer agrees that any irnprovernente or modifications
to the PBS Offerings shall belong to PBS. Customer hereby grants,
b. "Customer"shall be identified as such on the Quote transfers and assigns(and agrees to grant,transfer and assign)to PBS any
c. "Customasp j "omens data entered by Customer relating to its patients and all of Custonrer'a rich!,title and Interest In and to such improvements
that is entered into or transmitted through the PBS Apps. or modifications.PBS shall not be restricted Many manner in its use of any
Intellectual property crested by it hereunder for Customer.The foregoing
d, "customep l?rotoog.' means the medical practices, protocols, sad. grant,!rani/rand asaigruuent(and agreement to grant,transfer turd arraign)
guidelines adopted or used by Customer for patient care,including all drug also applies to any enhancement or improvement recommended orally or
concentrations,trig dosages,equipment sizes,and other practices adopted in'writing by Customer to PBS.
by Customer,formally or informally,from time to lima, d, E>Selusiona. The foregoing license does not include the right to, and.
e, "Cluattrmized"or mer'a rIzt 'means changes to thenPBS i Apps created Customer has no right to:(i)decomplle,reverse engineer,.disassemble,
by PBS at Customer's request and for C c nsi tensile in order for print,copy or display the PBS Offtrrings in whole or in,part or otherw
Customer to operate the PBS Apps in a manner consistent with Customer's reduce the PBS Apps to a human perceivable form in whole or in part;(fi)
Protocols, publish,release,rent,lease,sublicense,loan,sell,distribute or transfer ell.
P. byCustomer a Offerings"means the PBS Offerings that have been approved or any portion alike PBS Offerings to another parson or entity;(iii)use or
by tluatomer tiler Customization, reproduce the PBS Offerings for the use or benefit of anyone ether than in
g. "I3ffect➢ye Date"rumens the date Cestemer delivers a signed Pundrass connection with lratrmaar"slrusinessenterprisa;(iv)altar,modifyorcreate Ordertito PBS. derivative works of the PBS Offerings in whole or in part;(v)use or permit
h. 'fig j�s "means the thirteen([3}month period commencing on the the use of the PBS Offerings for oornmarclal time.aharing arrangements or
Effective Date, providing service bureau,data processing,rental,or other services to any '
i "I'EiS"means Pediatric t Bmergeny Standards,Inc. !hind party,or(vi)use the PBS Offerings or any part or aspect thereof for
J "PHS Appt" means the software application(s) licensed by Customer any uolawfbl purpose et'to mhrlead or Irarasa anyone.Use of or access to
pursuant to this Agreement as referenced on the Quote, the PBS O'11 nga in violation of the tenors hereof is strlctlyprahlblted.The
le "PBS Materials"means any durable goods provided by PBS to Customer rights granted Customer hereunder do not constitute a sale of any PIIS
as Identified in the Quote. Ofli rings. PES retains all right, title, and interest in and to the PBS
I. "PBS Offerings,"The PBS Apps,the PBS Materials,and the PBS Services Offerings,including without limitation all software used to provide the
are sorrmtlmes collectively referred to as the"PES Offer e " PBS Appa(and access via the Sara),all graphics,user interfaces,logos and
m. "PBS Services"means professional services provided by PBS to Customer tradenrrarka reproduced through the SeaS,and all goodwill associated with
as Identified-in the Quote,which may include Customization,education my of the foregoing,except to the limited extent of Customer's license
and training courses„and other support servicea, during the Term asset forth herein,Customer's permission,to access or use
n, "Pore sae Q;fdeir'' means a document signed by Customer evidencing the PBS Offerings may be limited or suspended immediately if,in.PBS's
acceptance of tire Quote, discretion,this Section or any other provision dada Agreement has been
o.. "Quote"meaua an offer by PBS to provide certain PBS Offerings at a price violated by Customer or any of its'Users.Customer agrees that a violation
of this Section wilt cause PBS irreparable and immediate harm,and that.
and on terms sot forth therein aril in these Terms and Conditions.These
Tense and Conditions are incorporated into the Quote. PBS is entitled to injunctive relief to prevent such violation, Customer
"Renewal Tenn"means a twelve(12)month period commencing on an recognizes that the PBS Offerings are protected by copyright and other
p' laws,
anniversary of the Subscription Start Date in the event that Customer elects
to renew this Agreement pureuart to Section 7(a)below, 3, FEES.
q, 'gaaS"means sofhvaraasoeservice, a. Feces Throu c,',«out the Term,Customer shall pay PBS the fees and other
r. "Subscription Start,Date means the date that is(I)thirty(30)days after amounts(collectively, ' 'cee)for the PBS Offerings as set forth in the
the Effective Date,err(it)such earlier date es agreed to in writing by PBS Quarter.Cert w amounts set forth in the Quote,such as applicable taxes,
and Customer. duties,and shipping and handling fees fbrPBS'Material;are estimates sari
a The "Toro" shall begin on the Effective Date and continue until this may be subject to final pricing at the time of delivery.If applicable to
Agreement is terminated or not renewed by either party in acconiance with Customer's bushier;Customer may provide PBS with a tax exemption
Section 7 below, certificate,
t. ' 'means any individual!bait la art employee of or is or works fora b. In the case of PBS Apps, Fees shall be due in tir➢l on the
Customercontractor of and that uses PBS Offerings,whether author[zedSubscription Start Date and each anniversary thereof. In the case of
by Customer to do so or not. courses,payment meat be made IN FULL at least twenty-flare(24)hours
2, LICKNSE. prior to the course slut time In all other cases,Fees are due within thirty
a. License Grant.Subject to the teams of this Agreement,beginning on the
(30) days of invoice,
Effective Date and during the'T,ean,PBS grants Customer a personal,non- c, Suspension of Services,PBS may suspend Customer's access to and use of
exclusive license to access and use the PBS Offerings.With respect to PBS the PBS Offerings if Customer Brits to timely remit payment or is otherwise
Apps,such license shall be in olsket code fonn only. In material default hereunder, Any notices of defhult/termination end
suspension may be combined,
b. mustier,Clinical guidelines and related clinical content contained in
the PBS Offerings must be approved by Customer pursuant to the d. Discounts.Items or services listed at no charge on a Quote ate included as
Cuatomlzation process prior to use In connection with patient care, part of a package discount or a subscription offering. Customer is
'Between the Effective Date and tire Subscription Start Date is a thirty(30) responsible for appropriately allocating the discount extended on package
day grace period during which Ceetomer shall complete the Customization pricing when!!drilling any reporting obligations.
process.Both PBS and Customer will make reasonable efforts to ensure e. Fee Increases for PBS,Apps..Fees for PBS Apps may increase by up to
that Customer is"live"on the PBS Apps as quickly as possible,however, five percent(5%)each year,in flue sole discretion of PBS.Customer will
in no everrtwill the Subscription Start Date he modified forimpierneatttion be notified of any Fee increase at least thirty(30)days prior to the end of
delays due to Customer.Customer shalt have an ongoing obligation to the Initial Term or Renewal.Term,as applicable.
monitor and update the Customized Offerings to ensure consistency with
Customer's Protocota,as Customer's Protocols may evolve over time. f. Peter Increases for PBS Materiels or PBS Services,PBS may lnstitute'Pee
Customer shall submit a written request to PISS for prompt revision and increases for PBS Materials and/or PBS Services without notice to its
EXFjf8IT�;PAGE 2 OF 1
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. a . .
customers,Any such Fee incressea would not be retroactively applied, during the month for any reason other than Scheduled Downtime (us .
defined below)or as a result of the Per:ratted Beaudoin(as defined below)
g. Tate and Feel Fees payable to PBS are exclusive of all foreign,fedeml,
(the home calculated will only include those hours es,t the such PBS Apse
state,and local taxes,including,without limitation,applicable sales,use,
would typically be in use).If any material portion of the total fiumtionality
duty,cuatoms,withholding,peoperty, value-added,or similar sales-like of the PBS Apps(a)is unavailable for operational use,the P.t.7,App(s)will
taxes,tax,fike charges,fires and 1inbilltie.s,and credit card proeessing fists
be considered down froan the time that Customer notifies PBS that a PBS
(but not Including taxes based orePES's income)("Taxes and Fees"),all of
App(a)is nonslimetional and the time that such PBS App(a)is serviced and
which shalt be the reeponsibility of Customer.To the extent permitted by
made available for use. A minimum of ninety-nine percent (91'4:4,)
applicable law, Customer Is responsible for and will remit (or will performance is based on the network hardware being operational.
reimburse PBS upon PES'e request)such Taxes and Fees as may be paid
by P.BS on Customer's behalf. A PBS App will be sst considered down if the us...en for the unavailability
b, iot o s,If Custorner is a eity,county or other government is a result of:(i)Scheduled Downtime or(ii)a Permitted&elusion.
entity,the parties agree that Customer may terminate the PBS Appa and If the SLIt is not met in any calendar month(other than as a result of
PBS Services at the end of the Customer's fiscal term for a Allure by Scheduled Downtime or a Permitted Exclusion), PBS shall provide
Customer's governing body to appropriate sufficient fluids to enable Customer,as Its sole and exclusive remedy,a credit equal to two percent
Customer to acquire the PBS Apps andfor PBS Services for the next fiscal (2%)of the prorated monthly Fee for the month that the PIM App(s)was
year, Notwithstanding the flmegoing, this provision shall not excuse unavailable(the"Prorated Monthly Feels plus an additional one percent
Customer limn past payment obligations or other Fees earned and unpaid (1%)of the Prorated laderehty Fee for each one peace(I%)that applicable
as of the end of such Customer's fiscal term.Moreover,Customer agrees Uptime is less than 99%,up to an aggregate maximum credltof eixpercent,
to provide PBS wi.'s.. reasonably documentation evidencing such non- (6%)of the Prorated Monthly Fee.PBS shall calculate'Winer and any
appropriation of fuss'„•,. service level downtime using its system lope and other records.
I, Third party Payer.If a third peaty pays some or all Fees on behalf of o, Scheduled, Dreanitime. If PBS detennines that it must intentionally
Customer('T1r3r4Jjjyjp ,the Third Party Payer must submit a interrupt the PBS Appa or that there la a potential for the PBS Appa to
Purchase Order directly.Cue tomer shall immediately pay(and shall remain be interrupted to conduct system maintenance(collectively,"Scheduled
jointly and severally liable)for payment if the Third party Payer dots not Downtime"),PBS will use good-faith dints to notify Customer of such
timely pay the Fees. Scheduled Downtime at least forty-eight(48)hours la advance,and will
J. bate Feel.In the event that any Pees are not paid within thirty(30) use cornmendaLly reasonable efforts to ensure that Scheduled Downtime
days of
occurs during the horns of 12:00 ern,to 6:00 tam, Central Time, • .
when dire,such overdue amounts may,is the sole discretion of PBS and to
the extent permitted by applicable law,seam interest until paid in full at d. Permitted Exclusions. Notwithstanding any other provision of this
a rate equal to the kliSti.of(i)one and one-half(1.5%)percent per month, Agreement to the contrary,performance issues melting from any of the
or(ii)the maximum lc: I rate, Customer's payment wilt not waive or following shall be considered a'Termittedincluden"for proposes of the
extend any obligation of Cretonne to make ongoing payments,as and when SLA:(i)any&me mejetwe or other event caused by factors outside of
due. PBS's.reasonable control;(1i)any actions or inactions of Customer or
k, Audit Big*.PBS may reasonably audit Customer's use of the
any third parties; (ill) any third party or Customer-provided network,
PBS
hardware,device or equipment failure;or(lv)general Internet operations
Offering:rand charge Customer a higher Pee if Customer's usage includee
problems.PES shall only be responsible for hardware and software upon
facilitiese Users, patient populations, or service beyond the scope .
which its PBS Apps are hosted and its Internet service provider up to the.
determined In development of the Quote. point its Internet service provider connects with Si.,- public internee
.1, Supplemental Quotes and Purchase Orders. PBS and Customer may Customer-provided network hardware support (1.e. fileservers,
execute and exchartee additional or supplemental Quotes and/or Purchase workstations,hubs,routers,eta.)is the responsibility of Customer.
Orders that will be subject to these Teens and Conditions end become part
it. Customer Met Request ' ,ce Credit To receive a credit pursuant to
of this Agreement. Section 5(b),Customer must notify PBS by email or otherwise In waiting
4. DELIVERY. `of its request,with receipt confirmation,within thirty(30)days of service
intenuption.
a, rfiti ARA,PIS shall provide Customer access to PBS Apps through a
reasonable system ,re electronic downloads. pm shall grant Customer 6. CUSTOMER DATA/PRIVACY.
access promptly following completion of the Customization process,
a. gernership and Use of Date.Except as provided below,unless it receives
b. y;.4.14aterink.Delivery dates for PIIS Materials are not guaranteed.In the Customer's prior written causerie PBS shell not;(I)access,process,or
absence of shipping instructions from Customer,PBS wilt obtain shipping otherwise use Customer Data; or(1i)intentionally grant any third !warty .
rates on.the Customer's behalf and for Customer's account,Delivery Shall access to Customer Data, including without limitation, PBS's other ,
be FOB PBS,point of shipment,and title and risk of loss shall pass to the Quatemars, except PES subcontractors,that are subject to a reasonable .
,
Customer once delivered to Oustmer's point ofshipment.PBS will not be nondisclosure agreement.As between PBS end Customer,all Customer
liable for any loss or damage of any kind duo to delays in delivery arum- Data shall be owned by Customer.Notwithstanding the foregoing,PBS
delivery mulling from any cause Including,but not limited to,acts ofCiod, may use and disclose Customer Data to fulfill its obligations under this
labor disputes,governmental authority or edict,war,civil unrest,terrorist Agreement or as required by applicable law or by proper legal or
acts,delays in manufacture Mine of Customer to obtain any required governmentel authority.To the extent that it is not prohibited from doing
license or permit,or the inability of PBS to obtain goods from.its usual so by law or the terms of such legal or government demand,PPS shall
sources.Any such delay shall n.othe considered a breach of any obligation• give Customer prompt notice of any such legal or governmental demand
by PBS,and the delivery dates shell be extended for the length of such and reasonably cooperate with Customer in any effort to seek a protective
delay, order or otherwise to contest such required disclosure, at Customer's
expense.
5. SERVICE LEVEL A.G.REEKENT.
b. Armsymized Mat Notwithstanding any provision herche PIES may ures,
a, Resting.1433 shall be responsible for hosting and managing PPS Apl... reproduce,license,or otherwise exploit Anonymized Data,provided that
b. Service Level A.greent.For cash calendar month dining the Term,PBS Anonmnized Data does not contain and is not PHI(es defined in the Health
shall use commercially reasonable efforts to ensure that the PBS.Apps Insurance Portability and Accountability Act or 1996 and its related
accessed by Customer via SaaS will maintain a level of uptiano equal to or regulations, as each may be amended). "Arm • zed,.D '" means
bettor than ninety-nine percent(.49%)(the"Sery A ecesen_l"or Customer Data with PHI and the names and addressee of Customer and its
"S.M."),lipsten: .'will be calculated using the following fberaula:Uptime Users removed.
e(T-TN.F)x 100/T where"I"is the total number of hours that the PBS
7. 17114.3v1;TERMINATION.
App(s)Is typically used per month(determined by multiplying the number of
Renewal Upon Payment effete Thirty Thirty(30)days prior to each anniversary
of hours par day that the PBS App(s)is typically used by the nuraber of of the Subscription Start Date,PBS shall invoice Customer for Fees the the
days par week that the PBS Apple)is typically used,and multiplying the
next twelve(12)month period.Payment of such Fees by Customer shall
result by 4-5 weeks fa a jramt10,and 71"NP"is the number of hours the PBS constitute a renewal of tide Agreement for an additional twelve(12)month
App(s)or any component of the PBS App(a)licensed by Customer under
Renewal Term,during which time this Agreement may only be terminated
the applicable Prachase Order la not fluictional. or otherwise unavailable .e . .....e.,„
.,. EXHIalT • PAGE OF t
2
. I
, .
. '
, .
r r
either(I)by mutual agreement of the patties,or(ii)for Cause pursuant to EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES IIBLAT.ED ,7
Section 7(e)below. THERETO,INC LUDINO BUT NOT LIMITED TO,WARRANTIES OF
MERCHANTABILITY, NON FITNESS FOR A
b, leotenemed.Cuetorner may elect not to pay Fees for a Renewal Term,in
PARTICULAR PURPOSE,AND OTHERWISE. 1
which event this Agreement and Customer's access to the PBS Appa shall
terminate at the end of the Initial Term or Renewal Term then.in effect b. Lisgaimere regarding'1p...441A1_1110 . .Customer acknowledges that accessing
PBS may elect not to renew this Agreement for a Renewal Tenn by data online involves risks of unavailability of information and Customer
providing Customer with at least thirty(30)days advance written notice, assumes such risks. Customer has sole responsibility for obtaining,
in which event this Agreement and Customer's access to the PBS Appe maintaining and securing its connections to the Internet PBS makes no
shall terminate at the end of the Initial Term or Renewal Term then in representations to Customer regarding the reliability, performance or .
effect security of any network orprovider.PBS cannot control the flow of.•A.ill to
or from its network and other port•ione of the Internet as such flow depends;
o. Terminatort for Cause.Either party may terminate this Agreement,and
in!arse preen the perfoneance of Internet service provident or third.parties.
Cuetomer's use of the PES.Offerings,for"Cause'in the event that: At times,actions or inactions of such third parties may impair or disrupt
I. Either party breaches a material provision of this Agreement(which ("easterner's connections to the Internet(or portions thereof).Accordingly;
*all Include non-payment of Fees) and such breach is not cured PBS disclaims any and all liability resulting from or related in any way to
within 30 days after written notice is provided to the breaching party, 'any unavailability of a PBS App, including as a result:of Scheduled
Customer's access to the FES Offerings may be suspended during Downtime or a.Permitted Emolusion,and Customer acknowledges that its
the 30-day cure period if the breach would cause potential damage solo remedies in any such event are as set forth in Section 5(b),For these
to FES or otherwise renders Customer's continued use thereof reasons, Customer further agrees to instruct its Users and all medical
unsafe; personnel to have hard copies of Customer's Protocols and the PBS
Materials or other backup options immediately available e,all times in case
if, Either party files a petition in bardouptcy, whether voluntary or
access to the PBS Appa is interrupted or otherwise becomes unavailable.
Involuntary, or an assignment for the benefit of creditors,in which
event termination shall be effective immediately;or c. Disclairnere regarding Clinierl gOntelli. .,
III. easterner breaches or threatens to bleach any of the provisions of:(A) I. PBS makes no representations or warranties with respect to the .,
Section 2(d) with respect to exclusions to Customer's license clinical content contalued in the PBS°fibrin ei and in the Customized
hereunder;or(B)Section 1.0 regarding confidentiality,Termination Offerings approved by Customer.
pursuant to this Section?Will) site' be immediate upon written
ii. Clinical guidelines and related clinical content contained in the PEE
notice by PES, Offerings must be approved by Customer pursuant to the.
d, • . fkQ . tJltClisfl$e.After the Effisclive Date,Purchase Customization process prior to use in connection with patient care,
Ordere may not be cancelled,changed,suspended or deferred without the Customer shalt have an ongoing obligation to monitor and update the
express,written consentof PBS.Customer agrees to pay all.Fees and.costs Customized Offerings to ensure consistency with Customer's
associated with any eancellatioa, change, suspension or deferral of a Protocol;as Customer's Protocols may evolve over time.Customer
Purchase Order including,without limitation,for PBS's Customization shall submit a written request to KS forprompt revisiou.and updating
work and PEN" cite;.4 to mitigate damages, If PBS agrees to allow of the Customized OM:rine: When Cue o.mer or its medical staff,
cancellation of a Purchase Poke,then this Agreement shall terminete es of employees ander contractors make modifications to Customer's
the date of such methsl agreement, otherwise, this Agreement and Protocols.
Customer's obligation to pay Fees shall continue for the remainder of the
ill, Customer hereby acknowledges that the Customized Offerings ere.not
Term. a substitute foe .,,,.judgment of licensed medical professionals.The
re k.eurn$,PBS Materials may be returned for a refired within thirty(30)days Customized Offerings aro tools that may assist medical professionals
of the delivery date;provided,that returned PBS Materials will not be in the delivery of care to patients.Ail medical judgments are reserved
accepted if they have been used or are not in good condition,Customized to !keeled cliniciane. Failure to render care consistent with
PBS Offerings atenoierefendable.If accepted,returned PBS Materials are recognized standard.of care nay result in injury to the patient,
subject to a fifteen percent(15%)restocking fee.Return shipping(tea are iv, Customer must determine for itself whether the PBS Offerings will
Customer's responsibility.If Customer desires to return PBS Materials,
inect ita needs,and P.ES mikes no representatione or warranties hi that
Customer must first mall PEE astorner Service at 866.867.3192 and obtain
regard,
a Return Goods Authorization Number (ROM). Customer must then
repackage PEE Materials and mat,them to Pediatric Emergency Standards, ,Lin CONFIDENTIALITY.
Inc.,11870 State Road 84,Suite C5,Davie,Florida 33325,PEE Materials a., Confideutral' leforinatime For purposes of this Agreement, the term ,
that arereturned'without prior authorization will be relined,and the carrier
"Confidential Information"HICR1111;(I)any nonpublic infornuation of FES
will charge Customer freight in both directions.If PBS accepts returned
or Customer including,without limitation,information regrading the PBS
items and issues a reline pursuant to this Section,then this Agreement
Offerings, information relating to current and planned plochues and
shall terminate as of such reftind irate, services of PBS and its technology, techniques, know-how, research,"
E Effect of Terrni•natien„Upon any termination of this Agreement pursuant engineering, design; finances, accounts, procurement requirements,
to this Section 7,Customer's Melee to use and access to the PBS Offerings manufacturing,customer lists,business forecasts and marketing plane;(ii)
will immediately cc lee and all Faes duo hereunder shall be immediately PBS's security controls,polities,procedures,audits,or other Information
due and payable;provided,however,that,in the event Customer terminates concerning PBS's intental security posture; (ill) patient bfformation. ,
this Agreement pursuant to Section 7(c)(i)as a result of an uncured breech obtained by Crammer,(lv)any other information of a party that is disclosed.
by PBS or pursuant to Section 7(e)(ii)in the event PBS files a petition in in writing and is conspicuously designated ea"Confidential"at the time of 1
haukruptcy or makes 011 assignment for the benefit of creditors,then disclosure or that Is disclosed orally and la identified as"Confidential"at .
Customer shall be relieved of any bather obligation to pay Fees and PBS the time of disclosure; and (v) this Agreement, including the Quote.
shall refund to Customer prorated Fees already paid by Customer for the Notwithetandlog the foregoing,Confidential Infomation deco not include
remainder of the Term..The applicability of certain provisions in this •information that; (A) is in the other party'e possession at the time of
Agreement shall survive tennirurton as set forth in Section 18(o)below, disclosure;(13)is independently developed without use of or reference to
Confidential information;(C) becomes known publicly, halbert.or after
8. SERVICE,A.ND REPAIltS.Updates to the PBS Asps shall be made
disclosure,other than as a result of a party's improper action or Maction;
available to Customer at no additional charge.All service end/or repairs (D)is approved for masses in writing by the disclosing party;or(B)Is ,
,
are performed wholly or in part at the discretion of PBS.PBS Materials required to be disclosed by law.
damaged in delivery will be replaced at no cost to the Customer.Damage
caused by wear and tear,abuse or accident is at the expense of Customer. b. Nondisclosure Tito parties shall not use Confidential Information for any
The remedies provided heroic amexclusive, purpose ether than to hIfill their respective obligations'under this .
Agreement.Bach party:(i) hall enemy that its employees or contractors
9. DISCLAIIIIERS. are bound by confidentiality obliee dons no less restrictive than those
a. girclaimer of Warranties,EXCEPT AS PROVIDED HEREIN,THE PBS contained herein;and(ii)shall not disclose Confidential Information to any
OFFMUNDS.AILE PROVIDED ON AN "AS IS" BASIS, Anil) PBS third party without prior written consent horn tire disclosing piety.Without
3 i
„ .
.. ...
. .
limiting the generality of the foregoing,the receiving party shall protect right,at its option,to participate in the settlement or defense of any such
Confidential Information with eke same degree of care it uses to protect its Claim,with its own counsel and at its own expense;provided,however,
own confidential information°beim ilar nature and importance,but with no that the Indemnifying Party will have the right to control such;settlement
less than reasonable care,A receiving party shall promptly notify the or dethese.The indemnifying Party will not enter into any settlement that
disclosing party of any misuse or misappropriation of°Confidential Imposes any liability or obligation an the Indemnified Party without.the [
Information of which it becomes aware. Indemnified Party's prior written consent.The parties will cooperate in any
settlement or defense and give each other fbll access to all relevant
a, Iejmurtion„Customer agrees that breach of this Section would cause PBS .
informatien,at the Indemnifying Party's expense.
irreparable injury, for which monetary damages would not provide
adequate compensation.In such instance,PBS will be entitled to injunctive 12. GOVERNMENT REGULATIONS,Each party agrees to comply with
relief against such breach or threatened breach,withoutPES proving actual all applicable import,export and anti-corruption statutes and regulations of
damages or posting a bond or other security,provided that if a judge the United State;in.connection with the manulketure,sale and distribution
determines that a bead is required,the parties agree that One Thousand of the PBS Offerings including,without limitation,the Fondgrt Corrupt
Dollars(331,000)shell be a reasonable bond. Practices Act Each party agrees to Indemnify and hold harnileas the other
from all claims,demands,damages,costs,fines,penalties,ationleye.fetier ,
d. Open Reccoda Lem and talker Diaelcsure lemmata,PPS acknowledges
and all other expenses arising from a party's failure to comply with this ..
that Customer may be required to disclose certain Confidential Information
Section andfor applicable laws,rules a Wier regulations govesning the PBS
if mandated by court order OT, in the case of a Customer that is a
Offeringe.
governmental entity,pursuant tr3 applicable open records laws or lawlir 1
publio records requests.At such time as Customer becomes aware that it 13. LIMITATION OF LIABILITY.
may be required to disclose Confidential Intimation, it agrees to (i)
NIAS, UNDER NO CIRCUMSTANCES
provide PBS with promptvnitters.notice in order to allow PBS to pretext its
a. XilIALI OR CUSTOMER
ATIPES OF DAOR
BE LIABLE FOR AN.Y
Confidential Informetiore object to the disclosure, end/or to seek a
CONSEQUENTIAL, INDIBECT, SPECIAL, PUNITIVE OR
protective order,and(ii)cooperate with PBS in such efforts.,In addition to
INCIDENTAL DAMAGES,INCLUDING CLAIMS FOR DAMAGES
the oldie,dons of this Section with respect to Confidential Information
FOR LOST PROFITS,GOODWILL,USE OF MONEY,INTERRUPTED
generally,Customer agrees to provide additional protection.to PBS source
OR.IMPAIRED USE OF THE PBS OFFERINGS,AVAILABILITY OF
code Information purguent to Section 10(e)below,
DATA, STOPPAGE OF WORK, OF. IMPAIRMENT OF OTHER
o. Source Code,THE SOURCE CODE FOR,THE PBS APPS SHALL BE ASSETS.
CONSIDERED HIGHLY CONFIDENTIAL INFORMATION UNDER
b. 1M. • CIF LIAMIX.PES'S MAXIMUM LTA.teLITY FOR
THIS AGREEMENT AND MAX NOT, UNDER ANY
ALL CLAIMS OF LIABILITY ARISING OUT OF OR IN
CIRCUMSTANCE,BE DISCLOSED BY CUSTOMER TO ANY THIRD
CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED ' •
PARTY EXCEPT PURSUANT TO A VALID COURT ORDER.
FIVE (3) TIMES THE FEES PAID BY OR ON BEHALF OF
.f. Return,of Confidential Inearmatem,Immediately upon termination of this CUSTOMER IN THE TWELVE (12)MONTHS IMMEDIATELY
Agreement or upon request, each party agrees to promptly return all PRECEDING THE APPLICABLE CLAIM,
Confidential Information and copies thereof belonging to the other party. .
to carry insurance e. laseraece Each. muty Shall be respemsibles .11 appropriate
if Customer is a government al entity and required to retain. certain
ammeter to cover the activitiee conducted by itunder this Agreement Upon
Confidential Iuthunation after termination of this Agreement, theni
written Keenest,PBS agrees to provide Customer with evidence of its
Customer alma retain only that portion of the Confidentiel Infisonadon that
insurance coverages, .
it is strictly required to retain under applicable law, return all other i
information to PBS,and execute a reasonable non-disclosure agreement in 14. DISPUTE RESOLUTION,
i.
commotion with the retained Confidential Information.
a. Limitation,of bettors. Except for claims arising from Customer.;non- 1
II. INFRINGEMENT. payment or underpayment of amounts owed to PBS,any and all claims
arising out of or related to this Agreement shall be barred,unless instituted
a. IF Initineemeote PBS draft debut and indemnify Customer Rom any
either(1)yf'MN two IA)years from the date that the complaining Party
damages, wale, liabilities, expenses (including reasonable and actual
knew or should have known of the.frets giving rise to a elates,or(I1)the
attorney's ihes)actually ineuned.orlinally adjudicated as to any third party
applicable)Florida statute of limitations,whichever Is shorter.
claim or action alleging that the£'ES Appa infringe or misappropriate any
third party's patent,copyright,trade secret or other intellectual property b. GoveraLolgn „Law,This Agreement and any claim or controversy arising '
rights enforceable in the applicable jurisdiction(each a"Claim"). hereunder(whether in contract, tort, or otherwise, ineludior statutory,
consumer protection,or common Jaw)shall be governed by(ha Jaws of the
b. JP Remedies.If any PBS Offering becomes,or in PBS's opinion Is likely
State of Flotida,without regard to conflicts of law.The UN Convention for
to become,the subject of an infringement or inisappropriatio.n claim,PBS
The Intetnational Sale of Goods and the Uniftum Computer Informegon
may,at its option and expense,either(i)procure for Customer the right to
Transactions Act will not apply.In airy(Repute,each party will bear its own
continue using such PBS Offering;(Ii)replace or modify the PBS Offering
attorneys'fees and costs.
so that it becomes nom/nfringinm or(iii)terminate Customer's sight to use
the PBS Offering and issue Customer a refend for any Fees forperiods after o, Mediation.In the event of any dispute,claim or disagreement arising out ,
such termination. Notwithstanding the foregoing, PBS will have no of or relating to this Agreement,the parties shalt first eubmitehe dispute,
obligation or otherwise with respect to any infringement or claim or &agreement to non-binding mediation administered by the
misappropriation claim based upon;(A)any use of the PBS Appa not in American Arbitration Association (the"MA”) in accordance with its ,
accordance with this An'ament or for purposes not intended by PBS;(B) Commercial Mediation Procedures.The place of mediation shall he Font
any use of the PBS Offerings in combination with other products, Lauderdale,/Reward County,Florida,The mediation shall ha conducted
equipment,software,or data not supplied or authorized by PBS,(C)any by one(I)mediator selected in accordance with AAA Mee,unless the
use ofany rotas es of the FES Appe other than the'noncurrent rele an m ado parties otherwise mutually agree to a panel of three(3)mediators.
available to Customer at no addiionel,charge;or(D)any modification of
. ' (I,. Binding Arbitration.If the dispute,claim or disagreement is not resolved .
a PBS Offering made by any meteors other than PBS or an authorized
within sixty(0)days after the initial mediation meeting,then either party
representative or agent thereof:In any such case Customer will defend PBS
may submit the dispute, claim or disagreement to binding arbitration •
from any such claim against PBS. administered by the MA in accordance with the provisions of its
e, Sole IF Liability.This Section is PBS's sole obligation and liability,and Commercial Arbitration Rules and,except as provided in Section 14(e) •
Customer's sole remedy, for potential. or actual intellectual property below,such arbitration shall be the solo means of dispute resedution.The
infringement relating to the PBS Offeeings. place ofarbitretion.shall be Pert Lauderdale,Browned County,Florida.The
arbitration shall be,conducted by one(1)arbitrator selected in accordance
d. .PLog4p.p_1. The patty seeking lede.mnificartlea(the"kiktippinstyjmul
with the AAA rules,'unless the parties otherwise mutually agree to a panel
must give prompt written notice of such Claim to the other party(the
of three(3)arbitrator's.
InderrentWeg Party"), accompanied by copies of any written
documentation re reeding the Claim received by the Indemnified Party.The o. Inesemetion.Notwithstanding anything in this Agreement to the contrary,
indemnifYing Party shall compromise or defend,at its own expense and each party shall be entitled to seek injunctive or other equitable relief
with Its own counsel,any such Chine The Indemnitied.Party will have the without first submitting the matter to mediation or arbitration.in accordance
is----_—__ --
4 1,Er.)1-11(3,11- PAGE S—OFI
• •
with .provisions of this Section l4,even if a similar or related matter g. Signateres. Electronic signatures on any portion of this Agreement(or
has already been referred to mediation or arbitration in accordance with the copies of signatures sent via electrordo means) are the equivalent of
terms of this Section 14,Venue for any action permitted to be brought in handwritten signatures and are flatly enforceable.
court under this S.•ion Shall be the appropriate state and federal courts
located in Fort Lauderdale,Broward County,Florida,
IS, SEVERABILITY,If a provision of this Agreement Is held to be invalid
or otherwise unenforceable,such provision will be interpreted to fulfill its
intended purpose to the maximum extent permitted by applicable law,and
the remaining provisions of this Agreement will continue in full force and
effect,
16. NOTICE,Notices provided under this Agreement must be in writing and
delivered to PBS's or Custonier'a principal place of business as forth in the;
1Pureb e Order and/or Quote by: (a) certified mail, return receipt
requested;(b) ,4 delivery;(c) with a confirmed read receipt;or
(d)reputable overnight carrier service,In the case of delivery by email,
the notice must be ,.lowed by a copy of the notice being delivered by a
means provided in(a),(b)or(d).The notice will be deemed given on the
day the notice is received by the party receiving such notice.
17. DESIGN CHAN Except as otherwise agreed expressly in writing,
: may at any time furnish inaprovernenta to a product's design and/or
construction.PBS may also hinder suitable so Mutes for materials that
are unobtainable because of priorities or regulations established by
governmental authorities or the nen-avaliability ofproducts from suppliers,
18, MISCELLANEOUS.
a. )vforiter Clans;In entering into this Agreement,neither party is relying
upon any representations or statements of the other that are not fully
expressed herein or therein; rather each party Is relying on its own
jud ,, t and due diligence and expressly disclaims reliance upon any
representations or statement not expressly set forth in this Agreement In
the event Customer issues User . emotion;Internal memoranda,or any
other document addressing any of' the PBS Offeringe it is hereby
specifically a •and understood that such writing is for the Cuslomer'a
internal pup.„es onity, and that any terms, provision; and conditions
contained therein shall in no way modify this Agreement.
b, AseiteuncatA Successor*.Noddle eparty may assign,subcontract,dole:. •
or otherwise transfer this Agreement or any of Its rights or obligations
hereunder,nor may it contract with third parties to perform any of its
obligations hereunder=wept as contemplated in this a ernent,without
the other party's priorronitten consent,except that either party mey,without
tire prior consent of the other,ass .all its right*under this Agreement to
(I)a purchaser of all or substantially all of its asset;or(Ji)a third party
participating In a merger, ...uistlion,sale of assets or other corporate
more nization in which either • rty is participating (collectivety,
"Change in Conker);provided however,that the non-assigning party is
given notice of the Change,in Con7rol and the assignee is not a competitor
of t .non-assigning party hereunder,
C, FOICOMaii20..No delay,failure,or default,other than a failure to pay Fees
when will constitute a breach of this Agreement to the extent caused
by acts of war,terrorism,hurricanes,earthquakes,other acts of God or of
nature,strikes or other labor disputes,riots or other acts of civil disorder,
ene, ., or other causes beyond the perfOrming party's reasonable
control (collectively, "Ewe Jvfaiieure"). In such eve. , however, the
delayed party must promptly provide the other party notice of the Force
Iviajeure.The delayed p arty's time for performance will be excused for the
duration of the Force fvfajeure,but if the Force Majeure event 1 longer
than thirty(30) days, the other party may immediately terminate any
unfidfilled Purchase Order,
d. Waiver&Breach.Neither party will be deemed to have waived any of its
rights under this Agreement,unless it la an explicit written waiver made by
an au rimed representative.No waiver of a breach will constitute a waiver
of any other breach,
a. a of"erma Unless otherwise stated,ail of PliS'a and C feeler's
respective obligations, representation" and warranties under this
Agreement which are not,by the express their terms,fully to[roper/brined
during the Term shall survive the termination of this Agreement.Without
limiting the foregoing,the pawls!.,s of Terms and Conditions Sections
2(d),6,9,10,13,and 14 shall surd m any termination of this Agreement.
f. Mthority.An individual executing or delivering a Quo.r or a Purchase
Order hereunder acknowledges that Inc or she has the authority to Hot on
behalf of the Caratereer or PBS,as the case may be,and bind such patty to
the terms hereof,
5 VXHIal PAGE Of