MEPS Real-Time, Inc. DBA Intelliguard Sales Terms and Conditions

1. 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.
2. Products for which Customer does not comply with all its obligations set forth in the Implementation Guide.
3. 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.
4. Normal wear and tear of the Product in accordance with industry standards.
5. 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).
6. Products on which the tamper seal is broken, removed or missing.

1. 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;
2. 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;
3. 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.

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.

1. Any breach of any representation, warranty, covenant or agreement of the Indemnifying Party contained in these Terms;
2. Any negligence or willful misconduct of the Indemnifying Party or any of its employees, representatives or agents;
3. Any infringement or misappropriation of a patent, copyright, trademark, trade secret or other intellectual property right of a third party (“Infringement Claim”).

1. the medication and/or dosage dispensed or involved in a Claim;
2. incorrect or improper data or information supplied by Indemnitee during use of a Product;
3. use of a Product contrary to the specifications, Product training or use instructions provided by IntelliGuard;
4. modification, alteration or combination of a Product by a party other than IntelliGuard, after its delivery by IntelliGuard;
5. negligence, willful misconduct or misuse of Product by Customer;
6. combination of the Products with Customer or a third party’s products;
7. Customer’s use of a Product after being notified to stop due to a third party claim;
8. compliance by IntelliGuard with Customer’s design or other specific Product requirements; or
9. 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.

1. procure for Customers the right to continue using the Products;
2. modify the Products so that they are no longer infringing;
3. 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.

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.