- Order and Delivery. Customer shall order Product directly from MEPS Real-Time, Inc. dba IntelliGuard (“IntelliGuard”) through the submission of a purchase order (“Order”). The delivery date and implementation schedule for each Product will be mutually agreed between IntelliGuard and Customer.
- Product Terms. Specific terms that apply to a Product are listed on the currently published Product Schedule.
- Pricing. The Product pricing is set forth on the currently published Product Schedule. IntelliGuard reserves the right to change its Product prices. IntelliGuard shall notify Customer of a change in Product prices or a change to the currently published Product Schedule or the currently published guide on implementation or installation processes and procedures (the “ Implementation Guide”) with a written notification no less than 30 days prior to the effective date of the price change.
- Order Cancellation. Customer may cancel an Order only upon the express written consent of IntelliGuard. Upon such cancellation, IntelliGuard shall cease work and hold for Customer all completed and partially completed Products and work in progress for Customer, and Customer shall pay IntelliGuard for all work and materials that have been committed to and/or identified with Customer’s order plus a cancellation charge prescribed by IntelliGuard and a reasonable profit to IntelliGuard.
- Order Delay. If Customer requests deferral of Product delivery, IntelliGuard agreement to defer delivery shall not excuse Customer from its obligation to pay for the Products at the same times and in the same quantities as the original delivery schedule, including interest due pursuant to these Terms. In addition to adhering to the original payment schedule, Customer shall pay such storage charges as IntelliGuard may assess for storing the Products awaiting delivery. If Customer requests deferral prior to commencement of production, IntelliGuard may require progress payments in connection with expenses for materials and services incurred by IntelliGuard in anticipation of production.
- Security Interest. Shipments, deliveries and performance of work by IntelliGuard shall at all times be subject to the approval and requirements of the credit department of IntelliGuard, including the requirement that Customer pay part or all of the purchase price in advance. IntelliGuard retains a purchase money security interest in all Products not paid for in full, notwithstanding that the Products may have been delivered to Customer. Customer hereby authorizes IntelliGuard to execute and file financing statements describing the Products and any other documents required to evidence IntelliGuard’s security interest.
- IntelliGuard Software License. IntelliGuard grants to Customer a non-exclusive, non-sublicensable, nontransferable, revocable license to use, access, perform, display, and run the IntelliGuard software included as part of the Product (“IntelliGuard Software”) only on the hardware manufactured or delivered by IntelliGuard and included as part of the IntelliGuard Product (“IntelliGuard Hardware”) or any printers and computers delivered by IntelliGuard with the Product (“Supplied Hardware”) on which it has been installed by IntelliGuard. The IntelliGuard Software may only be used for its licensed purpose as part of the Product.
- Copies. Customer shall not make any copies of the IntelliGuard Software except for backup purposes. Customer shall reproduce all copyright notices and any other proprietary legends on any copy of the IntelliGuard Software made by Customer.
- IntelliGuard Software. Except for the limited license in Section 2.a, the IntelliGuard Software and all copies will at all times remain the sole property of IntelliGuard or its licensors, including all intellectual property rights therein, and Customer shall obtain no interest in the IntelliGuard Software.
- IntelliGuard Hardware and Supplied Hardware. Title to the IntelliGuard Hardware and Supplied Hardware shall pass to Customer upon IntelliGuard receipt of payment in full for such IntelliGuard Hardware or Supplied Hardware, except for IntelliGuard Hardware and Supplied Hardware for which the purchase price is included as part of the Tag Commitment Amount (“Tag-only Hardware”), for which title shall pass to Customer upon IntelliGuard’s receipt of payment in full of the Tag Commitment Amount. For the purposes of these terms, “Tag Commitment Amount” shall mean the total purchase price of a mutually-agreed number of IntelliGuard radio frequency identification tags that Customer shall purchase under these Terms set forth in the applicable Product Schedule.
- Media. If Customer sells or otherwise disposes of Customer-owned hardware or media on which the IntelliGuard Software is installed, the IntelliGuard Software must be erased from such hardware and media before any sale or disposal.
- Intellectual Property Rights. IntelliGuard and its suppliers reserve all rights not expressly granted to Customer in these Terms. Customer may not reverse engineer, decompile, or disassemble the IntelliGuard Software or IntelliGuard Hardware, except and only to the extent applicable law expressly permits the activity. Customer may not distribute, sublicense, lease, rent, loan or otherwise transfer the IntelliGuard Hardware or IntelliGuard Software.
Payment, Taxes, Shipping, and Returns.
- Invoices. IntelliGuard will send an invoice for Product to Customer upon IntelliGuard shipment of the Product. Customer shall pay each invoice in full within 30 days after the invoice date, except payment for modem rentals, and monitoring and maintenance services are due on the first day of each month of the service during the service term. Any invoice not paid in full by the due date shall be subject to a late payment charge of 1.5% per month (compounded) on the balance of any past due amount. Notwithstanding any other provision hereof, IntelliGuard shall have the absolute right to immediately suspend its provision of all monitoring and maintenance services in the event that Customer fails to make any payment when due to IntelliGuard.
- Setoff. IntelliGuard may, without notice, set-off any amount owed by Customer or its affiliates to IntelliGuard, including, without limitation, any applicable interest due pursuant to Section 4.a hereof, against any amount payable by IntelliGuard in connection with these Terms.
- Taxes. All prices are exclusive of shipping and insurance charges, and of all sales, use, excise, and other taxes, duties or charges. Unless evidence of tax exempt status is provided by Customer, Customer shall pay, or upon receipt of invoice from IntelliGuard, shall reimburse IntelliGuard for all such taxes or charges levied or imposed on Customer, or required to be collected by IntelliGuard, resulting from this transaction or any part thereof. If Customer is required by any tax authority to withhold taxes on payments to IntelliGuard, then Customer may deduct these taxes from the amount owed IntelliGuard and pay them to the authority. Customer must deliver to IntelliGuard an official receipt for any taxes withheld (or other documents necessary) for IntelliGuard to claim a tax credit or refund. Customer must deliver the receipt within 60 days of payment of the tax, or maximum time allowed for delivery of the receipt under local law.
- Shipping. IntelliGuard shall ship the Products from IntelliGuard’s designated location to the location specified by Customer at Customer’s risk and expense. Unless instructed otherwise, IntelliGuard shall arrange for insurance and standard commercial shipping, the costs of which will be invoiced to the Customer.
- Returns and Claims. Claims by Customer for shortages or errors in delivery must be made within five days after the delivery of the Products. No Product may be returned for credit without first obtaining written consent from an executive officer of IntelliGuard.
- Customer shall comply with all Customer obligations set forth in the currently published Implementation Guide and other information provided by IntelliGuard.
- At least 30 days prior to the scheduled delivery of Product, Customer will complete, certify and return the ‘Implementation Readiness’ portion of the Implementation Guide to the address stated in the Implementation Guide.
- Customer shall pay any additional charges set forth in the Implementation Guide that are incurred due to the extension or delay of the implementation process caused, in IntelliGuard’s reasonable opinion, by Customer.
- Warranty. IntelliGuard represents and warrants that Product shall conform to the documentation, specifications, drawings and samples furnished by IntelliGuard. IntelliGuard warrants against defects in material, workmanship, design and manufacturing (i) for a period of 90 days from the date of shipment from IntelliGuard for any IntelliGuard Software , and (ii) for a period of one year from date of shipment from IntelliGuard for IntelliGuard Hardware and Supplied Hardware.
- Warranty Limitations. The warranties in this Section 6 will
not apply to:
- Products that fail to meet a warranty in these Terms due to any of the following that occur after delivery of the Product: accident, misuse, improper storage, alteration or repair by anyone other than IntelliGuard or IntelliGuard’s agent to the extent that such action caused the failure of the Product to meet the warranty.
- Products for which Customer does not comply with all its obligations set forth in the Implementation Guide.
- Product that is used for or in combination with products that are not manufactured by IntelliGuard or approved in writing for such use by IntelliGuard.
- Normal wear and tear of the Product in accordance with industry standards.
- Loss or damage resulting from using the Product in an environment that is not an approved or normal atmosphere for equipment operation (i.e. outdoors).
- Products on which the tamper seal is broken, removed or missing.
- Remedies. If Product fails to conform to the warranties
in this Section 6, IntelliGuard’s sole and exclusive liability
will be to provide one of the following remedies, chosen
- Products (other than IntelliGuard Software): repair the non-conforming Product or parts, or replace such Product with new Product or parts that conform to the warranties in this Section 6 for the remainder of the original warranty period;
- IntelliGuard Software: correct the IntelliGuard Software or replace it with new IntelliGuard Software that conforms to the warranties in this Section 6 for the remainder of the original warranty period;
- if none of the above remedies can be effected, then IntelliGuard shall refund to Customer the amount paid by Customer for such Products, less the purchase price for Products that Customer has consumed.
- Disclaimer. Customer acknowledges and agrees that the Product and other products or services provided by IntelliGuard under these Terms are intended to be used as tools and solutions to assist Customer in its business, but are not intended to be relied upon by Customer, or modify Customer's responsibility for the services and products it, or others on its behalf, provides to patients or other third parties. IntelliGuard will have no responsibility or liability for products and services provided to patients and other third parties. IntelliGuard is not responsible for any bodily injury, death or property damage that occurs as a result of using the Products for an application or purpose where the failure of the Product results in bodily injury, death or property damage.
No Transfer. This warranty is only for Customer and cannot be transferred to any other customer, entity or individual. IntelliGuard will not reimburse Customer for any warranty, repair or other support service performed by others.
EXCEPT AS STATED IN THIS SECTION 6, INTELLIGUARD EXPRESSLY DISCLAIMS ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, i) THE WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE OR FUNCTION; ii) ANY WARRANTY THAT THE PRODUCTS, OR CUSTOMER’S USE THEREOF, COMPLIES WITH ANY LOCAL, STATE, OR FEDERAL LAW; AND iii) CUSTOMER EXPRESSLY AGREES THAT ITS USE OF THE PRODUCTS OR ANY OTHER PRODUCTS OR SERVICES PROVIDED BY INTELLIGUARD UNDER THESE TERMS ARE AT CUSTOMER’S OWN RISK. FURTHER, INTELLIGUARD DOES NOT WARRANT THAT THE USE OF THE PRODUCTS WILL BE UNINTERRUPTED, NOR DOES INTELLIGUARD MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY THE USE OF THE PRODUCTS.
THE REMEDIES CONTAINED IN THIS PROVISION CONSTITUTE INTELLIGUARD’S SOLE AND EXCLUSIVE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR FAILURE OF THE PRODUCT TO MEET THE WARRANTIES IN THIS SECTION 6.
Limitation of Liability
- In General. Each party (the “Indemnifying Party”) shall
defend, indemnify, and hold harmless, at its expense, the
other party and their respective officers, directors,
regents, agents, subsidiaries, affiliates and employees
(individually an “Indemnitee”, collectively, the
"Indemnitees"), against all loss, damage, or expense of
any kind, including reasonable attorneys’ fees and costs
of litigation, arising from any third party claims whether in
law or in equity ("Claims") based on or related to:
- Any breach of any representation, warranty, covenant or agreement of the Indemnifying Party contained in these Terms;
- Any negligence or willful misconduct of the Indemnifying Party or any of its employees, representatives or agents;
- Any infringement or misappropriation of a patent, copyright, trademark, trade secret or other intellectual property right of a third party (“Infringement Claim”).
- Special Indemnification Obligations. Notwithstanding
anything to the contrary set forth in these Terms,
IntelliGuard’s indemnification obligations will not apply,
and Customer’s indemnification obligations will apply, to
the extent that any claim is based on:
- the medication and/or dosage dispensed or involved in a Claim;
- incorrect or improper data or information supplied by Indemnitee during use of a Product;
- use of a Product contrary to the specifications, Product training or use instructions provided by IntelliGuard;
- modification, alteration or combination of a Product by a party other than IntelliGuard, after its delivery by IntelliGuard;
- negligence, willful misconduct or misuse of Product by Customer;
- combination of the Products with Customer or a third party’s products;
- Customer’s use of a Product after being notified to stop due to a third party claim;
- compliance by IntelliGuard with Customer’s design or other specific Product requirements; or
- any of the following: a) Customer’s provision of the Products to a third party customer or patient; b) a third party customer or patient’s use of the Products, or use of the Products in combination with Customer or a third party’s products or services; c) or any medication or dosage dispensed to a third party customer or patient.
IntelliGuard’s indemnification obligations will not apply, provided, however, that Customer’s indemnification obligations will apply, to any claim for bodily injury, death or property damage that occurs as a result of using the Products for an application or purpose where the failure of the Product could result in bodily injury, death or property damage.
- Indemnification Procedures. As a condition of the obligations under this Section 8, the Indemnitee must promptly notify the Indemnifying Party in writing of any Claim for which it seeks indemnity and provide the Indemnifying Party all reasonable requested cooperation and information to assist the Indemnifying Party’s defense of the Claim. The Indemnifying Party shall have the right to control the litigation and settlement of a Claim, except that the Indemnifying Party must obtain the written consent before entering into any compromise or settlement of such Claim. Indemnitee, at its own expense, may retain its own counsel to monitor such defense or settlement. Subject to the limitations of this Section 8, the Indemnifying Party will pay any damages and costs finally awarded
- Infringement Claim Remedy. If the use of the Products is
enjoined due to an Infringement Claim, IntelliGuard may,
at its own expense, either:
- procure for Customers the right to continue using the Products;
- modify the Products so that they are no longer infringing;
- replace the infringing Products with non-infringing substantially similar products.
If none of the foregoing is possible, then IntelliGuard shall refund to Customers the amount paid by Customer for such Products, less the purchase price for Products that Customer has consumed.
- Entire Obligation. This Section 8 states the entire obligation and exclusive remedy of each of the parties with respect to any actual or alleged intellectual property infringement of third party rights or misappropriation of third party trade secrets by any Product furnished under these Terms. Other than the rights expressly granted in these Terms, neither these Terms nor the sale of any of Products grants any rights to IntelliGuard’s intellectual property rights, by implication, estoppel or otherwise.
- Survival. Sections 2.c, 2.d, 2.e., 3, 4, 6, 7, 8, and 9 will survive termination or expiration of these Terms.
- Assignment. IntelliGuard reserves the right to assign these Terms in whole or in part upon written notification to the Customer.
Governing Law, Arbitration and Jurisdiction. These Terms will be governed by and construed in accordance with the laws of the State of California. Except for any breach of Section 2, any controversy or claim arising out of or relating to these Terms, or the breach thereof, shall be settled by a single arbitrator in the arbitration at San Diego County, California, administered by the American Arbitration Association in accordance with its International Arbitration Rules, supplemented by the Expedited Procedures under its Commercial Arbitration Rules, and judgment on any award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The language of the arbitration shall be in English. The existence, content (including all documents and materials submitted to the arbitrator), and results of any arbitration are Confidential Information. The arbitrator will be a neutral practicing attorney or retired judge with experience in similar cases. The arbitrator must agree in writing to maintain the confidentiality of the arbitration. The arbitration will be governed by the Federal Arbitration Act, 9 U.S.C. §§1 et seq. The prevailing party will be entitled to recovery of arbitration expenses (including reasonable attorney’s fees). The arbitrator’s award will include provisions for this recovery. The arbitrator’s award will be binding and final. The arbitrator will apply the substantive laws of the State of California excluding its conflicts of law provisions. The parties exclude in its entirety the application to these Terms of the United National Convention on Contracts for the International Sale of Goods.
For any disputes that are not handled by arbitration, the parties agree that any action to enforce the rights and obligations under these Terms or arising out of or based upon these Terms or the business relationship between IntelliGuard and Customer will be brought in a state or Federal court of competent jurisdiction in San Diego County, California. The prevailing party will be entitled to reimbursement of its reasonable attorneys' fees. IntelliGuard may pursue injunctive relief against Customer in any forum to protect its intellectual property rights. No notice is required if IntelliGuard reasonably determines that doing so will prevent it from reasonably protecting its intellectual property.
- Enforceability. If any provision of these Terms shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions shall in no way be affected or impaired.
- Notices. All notices shall be in writing and shall be delivered or sent by registered, certified or express mail, return receipt requested, to the addresses as the parties may specify in writing. Notices shall be deemed effective seven days after being deposited in registered or certified mail and two days after deposit in express mail.
- Entire Agreement. In the absence of a signed agreement between the parties, these Terms and related IntelliGuard documents, including but not limited to currently published Product Schedule and the currently published Implementation Guide, constitute the sole and entire contract between the parties pertaining to the subject matter hereof and supersede all previous verbal and written communications, agreements, promises, and understandings. No modification, deletion or addition to these Terms shall be binding on either party unless made in writing and signed by a duly authorized representative of both parties. In the event of a conflict between these Terms and a signed agreement between the parties, the terms of the signed agreement shall control.
- Force Majeure. Except with respect to Customer’s payment obligations, neither party shall be liable for delays beyond their reasonable control, including, but not limited to acts of God, terrorism, war, riot, epidemics, fire, flood, insurrection, acts of civil or military authorities, a failure of transportation or communications.
- Waiver. IntelliGuard shall not be deemed to have waived any right, power, privilege or remedy unless such waiver is in writing and duly executed by it. No failure to exercise, delay in exercising or course of dealing with respect to any right, power, privilege or remedy shall operate as a waiver thereof by IntelliGuard or of any other right, power, privilege or remedy. No exercise or partial exercise of any other right, power, privilege or remedy shall preclude any other or further existence thereof by IntelliGuard or the exercise of any other right, power, privilege or remedy by IntelliGuard.