- TERMS AND CONDITIONS
ICON Support and Training. Subject to payment of Service Fees and all other fees, ICON will provide clinical, educational and technical support specified in ICON's current Customer Care Packages.
- Fees and Payment. Customer shall pay ICON the Service Fee for the selected Customer Care Packages shown in the Services Information section of this ICON Services Renewal Agreement for each Service Fee Period for a duration of 12 months. Service fees shall be invoiced by ICON and paid monthly by [CUSTOMER].
Customer will pay the fees ("Renewal Fees") for subsequent Service Fee Periods within 30 days after receipt of ICON's invoice. Customer will also pay ICON all Training Fees if applicable within 10 days after receipt of ICON's invoice therefor. All payments are non-refundable. Any payments over 15 days overdue will bear a late payment fee of the lower of 1.5% per month of the outstanding balance or the maximum rate allowed by law. ICON shall refund to Customer any amounts actually paid to ICON by Customer which exceed amounts due hereunder, minus any costs, fees, taxes, duties or other implications, if any, arising in connection with such overpayment.
- Proprietary Rights. As between the parties, ICON will retain all right, title and interest in and to any equipment, software, tools, techniques, and other materials used in connection with providing the Services, including copyrights or other intellectual property rights, in and to any and all ideas, concepts, expertise, programs, systems, methodologies, compilations, analyses, data or other materials embodied in, underlying or reduced to practice by ICON ("ICON Materials"). As between the parties, Customer will retain all right, title and interest in and to any equipment, software, products, documentation and other materials it supplies, but will not prevent ICON from using the expertise, ideas and know-how learned while performing Services for other purposes (including, without limitation, for itself or on behalf of third parties). ICON shall be the sole and exclusive owner of all right, title and interest, in any work product created as part of the Services ("Work Product"), including any Work Product that may form a portion of the ICON Materials.
Customer understands that ICON may furnish Customer with resource tools and information, including but not limited to the non-exclusive right to use ICON's Database and other web-based resources associated with ventilator products and systems for the duration of this Agreement (collectively referred to as "Tools"), for the sole purpose of providing Services to Customer under this Agreement. Customer will not use the furnished Tools for any other purpose. Customer understands that all Tools are supplied "AS IS" and ICON disclaims all warranties (as set forth below in Section 6). Customer understands that the Tools are proprietary and ICON owns all right, title and interest, including copyrights or other intellectual property rights, in and to any and all ideas, concepts, expertise, programs, systems, methodologies, data or other materials embodied in, underlying or reduced to practice in said Tools
- Confidential Information. Each party ("receiving party") agrees that all code, inventions, algorithms, know-how and ideas and all other business, technical and financial information it obtains from the other party ("disclosing party"), but not including Work Product that is the sole and exclusive property of ICON pursuant to Section 3, are the confidential property of the disclosing party ("Confidential Information" of the disclosing party). Except with the consent of the disclosing party, the receiving party shall hold in confidence and not use or disclose any Confidential Information of the disclosing party for at least five (5) years after this Agreement expires or otherwise terminates. The receiving party's nondisclosure obligation shall not apply to information it can document: (i) is generally available to the public other than through breach of this Agreement; (ii) is rightfully disclosed to the receiving party by a third party; (iii) is independently developed by the receiving party without use of any Confidential Information of the disclosing party, or (iv) is disclosed to pursuant to law or an order requirement, guidance, or request of a court or government authority. Because of the unique and proprietary nature of the Confidential Information, it is understood and agreed that the disclosing party's remedies at law for a breach by the receiving party of its obligations under this Section will be inadequate and that the disclosing party shall be entitled to equitable relief (including without limitation provisional and permanent injunctive relief and specific performance). Nothing stated herein shall limit any other remedies provided under this Agreement or available to the disclosing party at law. Upon expiration or termination of this Agreement for any reason, each party will return all copies of all Confidential Information of the other party in its possession or control.
- Termination. This Agreement will have an initial term of the earlier of one (1) year from the Effective Date. ICON will notify Customer 90 days prior to termination date with an option to renew services for additional year(s) according to current rates and terms.
Either party may terminate this Agreement, at its convenience for any reason or no reason, upon thirty (30) days prior written notice to the other party, except if ICON is terminating the Agreement such termination will not be effective until the end of any fully paid-up Service Fee Period. In addition, ICON (at ICON's sole option and discretion) may terminate this Agreement immediately at any time in the event of a Default (as defined below) by Customer; except that, if the Default shall be solely as a result of failure to pay monies due to ICON under this Agreement, Customer shall have 10 days to cure the payment Default after notice from ICON.
For the purposes hereof, "Default" shall mean without limiting the foregoing, if Customer should (i) fail to timely pay to ICON, when and as due hereunder, any Service Fee or any other amount specified in this Agreement or an applicable Invoice, or otherwise breach the terms of this Agreement, or any other agreement with ICON, or (ii) cease to carry on business as a going concern, or commence voluntary bankruptcy or similar proceedings, (ii) consent to, or fail to contest in a timely and appropriate manner, any involuntary bankruptcy or similar proceedings, or (iii) become insolvent or generally fail to pay debts as they come due, or (iv) admit its inability to pay its debts.
Upon and after a Default by Customer for non-payment of monies due to ICON, and without any notice from ICON and, further, without prejudice of any other right or remedy of ICON, such Default shall result in a late charge, payable upon demand, calculated daily at an interest rate of 1 1/2% per month (18% per annum) or, if such rate shall exceed the maximum rate of interest allowed by applicable law, then at such maximum rate. Unless otherwise specified on ICON's Invoice, the Service Fees, applicable taxes and other costs listed in this Agreement are due and payable upon receipt by Customer of ICON's Invoice. ICON shall have the right to require full or partial payment in advance at any time if, in its opinion, the financial condition of Customer places at risk the terms of payment specified. If Customer breaches or Defaults under the terms of this Agreement, or ICON collects any amounts due under this Agreement by law, or through an attorney at law, Customer shall pay all costs of collection, including reasonable attorneys' and experts' fees (whether at trial, appeal or any arbitration or administrative proceeding) together with interest on said unpaid balance in an amount equal to the lower of 1 1/2% per month (or fraction of a month) or the highest legal rate.
Customer agrees in the event of termination of this Agreement for any reason, it shall have no rights to damages or indemnification of any nature related to such termination, specifically including no rights to damages or indemnification for commercial severance pay, whether by way of loss of future profits, costs of cover to replace the Services of ICON, or other commitments in connection with the business and good will of Customer. Customer expressly waives and renounces any claim to compensation or indemnities for any termination of a business relationship.
- Warranty and Disclaimer. ICON hereby warrants to Customer, and only Customer, that all Services shall be performed in a reasonably professional and workmanlike manner in accordance with industry standards. ICON DISCLAIMS ALL OTHER WARRANTIES AS FOLLOWS:
A. THE PARTIES ACKNOWLEDGE THAT THIS IS AN AGREEMENT FOR SERVICES AND NOT FOR THE SUPPLY OF GOODS. EXCEPT FOR THE FOREGOING, ICON MAKES NO OTHER WARRANTIES OR REPRESENTATIONS AS TO THE SERVICES RENDERED, AND HEREBY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND INTEGRATION OR CONTENT WARRANTIES. ICON FURTHER DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL SUCCEED IN RESOLVING ANY PROBLEM, OR THAT ANY WORK PRODUCT OF THE SERVICES WILL BE FREE FROM ERRORS, PARTICULARLY ERRORS THAT MAY RESULT FROM A MALFUNCTIONING OR DEFECTIVE DEVICE; AND
B. ALTHOUGH ICON MAY REFER THE CUSTOMER'S STAFF AND PERSONNEL TO PUBLISHED MATERIALS AND PROTOCOLS REGARDING THE PROPER INSTALLATION, MONITORING, USE, AND TROUBLE-SHOOTING OR RESOLUTION OF ALARMS OR ERROR MESSAGES OF THE DRAEGER MEDICAL VENTILATORS, CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT ICON DOES NOT, UNDER ANY CIRCUMSTANCES, GIVE MEDICAL ADVICE, NOR DOES ICON MAKE ANY RECOMMENDATIONS REGARDING DIAGNOSIS, TREATMENT, OR PATIENT CARE. ALL DECISIONS AND RECOMMENDATIONS REGARDING MEDICAL ADVICE, DIAGNOSIS, TREATMENT, AND PATIENT CARE MUST BE MADE BY THE ATTENDING PHYSICIAN AND ICON DISCLAIMS ANY AND ALL RESPONSIBILITY IN CONNECTION THEREWITH.
- Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, ICON SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT WHETHER ARISING IN OR UNDER ANY CLAIM OF CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE), OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR OTHER LEGAL OR EQUITABLE THEORY, ALL OF WHICH ARE EXPRESSLY DISCLAIMED EVEN IF ICON OR ITS SUPPLIERS HAVE BEEN INFORMED OF THE POSSIBILITY THEREOF:
(A) FOR ANY AMOUNTS IN EXCESS (IN THE AGGREGATE) OF THE FEES PAID TO IT HEREUNDER WITH RESPECT TO THE APPLICABLE SERVICES RELATED TO THE SUBJECT "INCIDENT" (AS DEFINED HEREIN);
(B) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES, OR RIGHTS;
(C) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA OR INFORMATION;
(D) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL; OR
(E) FOR ANY CLAIM, LOSS OR DAMAGE WHETHER FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE, OR ANY OTHER INDIRECT DAMAGES, CAUSED OR ALLEGED TO BE CAUSED DIRECTLY, INDIRECTLY, INCIDENTALLY OR CONSEQUENTIALLY BY ICON OR ITS SERVICES, BY ANY INADEQUACY THEREOF OR DEFICIENCY OR DEFECT THEREIN, OR BY ANY INCIDENT WHATSOEVER IN CONNECTION THEREWITH.
IT IS HEREBY ACKNOWLEDGED AND AGREED THAT ICON DOES NOT GIVE MEDICAL ADVICE, NOR DOES ICON MAKE ANY RECOMMENDATIONS REGARDING DIAGNOSIS, TREATMENT, OR PATIENT CARE. ALL DECISIONS AND RECOMMENDATIONS REGARDING MEDICAL ADVICE, DIAGNOSIS, TREATMENT, AND PATIENT CARE MUST BE MADE BY THE ATTENDING PHYSICIAN AND ICON DISCLAIMS ANY AND ALL RESPONSIBILITY IN CONNECTION THEREWITH. CUSTOMER OR ANY OF ITS PHYSICIANS, AGENTS, EMPLOYEES, OFFICERS, AFFILIATES, SUCCESSORS OR PERMITTED ASSIGNS SHALL BEAR THE SOLE RESPONSIBILITY FOR MEDICAL DECISIONS AND ACTIONS REGARDING DIAGNOSIS, TREATMENT, AND PATIENT CARE. THE CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS ICON (AND ITS OFFICERS, DIRECTORS, AGENTS, SUCCESSORS AND ASSIGNS) FOR ANY CLAIM WHATSOEVER ASSERTED AGAINST ICON (OR ANY OF THEM) BY OR ON BEHALF OF ANY PATIENT.
IN THE EVENT THAT A COURT OF COMPETENT JURISDICTION HOLDS THAT THE EXCLUSION AND LIMITATION OF LIABILITY ABOVE SHALL BE UNENFORCEABLE, THE PARTIES HERETO AGREE THAT, IN ANY EVENT (NOTWITHSTANDING SUCH HOLDING), ALL LIABILITY OF ICON AND ITS SUPPLIERS UNDER THIS AGREEMENT OR OTHERWISE SHALL BE LIMITED TO THE MONEY PAID TO ICON FOR THE PRODUCT PURCHASED UNDER THIS AGREEMENT, WHICH PRODUCT WAS THE SOLE AND DIRECT CAUSE OF THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. LIABILITY FOR DAMAGES WILL BE SO LIMITED AND EXCLUDED, EVEN IF ANY REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. THIS MAXIMUM LIABILITY IS A CUMULATIVE LIMITATION AND NOT PER INCIDENT.
If any products (or any part thereof) are new products, Customer acknowledges receipt of product warranty information provided by the manufacturer. Customer further acknowledges and understands that the sole remedy of Customer for the breach of any such warranty, or defects or other failure of the product, shall be against the manufacturer and not against ICON, and that any such breach shall not affect the obligations of the Customer to ICON hereunder.
- Indemnity. Customer hereby agrees to defend, indemnify and save harmless ICON, and its agents and employees, officers, directors, affiliates, successors and assigns from and against any and all liabilities, obligations, losses, damages, penalties, claims, costs, expenses, including reasonable attorneys' and experts' fees (whether at trial, appeal or any arbitration or administrative proceeding) and other legal expenses ("Liabilities"), of any kind whatsoever, arising from or relating to: (a) patient care, including, without limitation, any medical decisions or decisions regarding diagnosis, treatment or patient care made by Customer or any of its physicians, agents, employees, officers, affiliates, successors or permitted assigns; (b) any breach of this Agreement (or other related agreements or support documents with ICON) by Customer; (c) or any misrepresentation by Customer; (d) together with any and all Liabilities arising from or related to claims (including, without limitation, third party claims by Customer's patients) arising from the manufacture, order, acceptance or rejection, purchase, ownership, delivery, lease, possession, use, importation, installation, condition, sale, return or other disposition of the ventilators. ICON agrees to give Customer prompt notice of any matter or claim subject to this indemnity of which ICON becomes aware. This indemnity shall continue in full force and effect through, from and after full payment of the Service Fees due to ICON and shall not be extinguished by payment of the Service Fees.
- Minimum Insurance Required. During the term of this Agreement, Customer will obtain and maintain at its own expense, with financially reputable insurers licensed to do business in all jurisdictions where Support Services are performed, liability insurance sufficient to protect ICON from any claims described in the terms above, and in any event, no less than the policies and limits set forth below. Customer will pay the premiums therefor, and deliver to ICON, upon request, proof of such insurance. Said insurance coverage may be modified or terminated only upon thirty (30) days Notice to ICON, and shall include the following: (i) Workers' Compensation as required under any Workers' Compensation or similar law in the jurisdiction where work is performed, with an Employer's Liability limit of not less than One Million Dollars ($1,000,000.00) per occurrence/annual aggregate; (ii) Commercial General Liability, including coverage for contractual liability and products/completed operations liability, with a limit of not less than Five Million Dollars ($5,000,000.00) combined single limit per occurrence for bodily injury, personal injury and property damage liability; (iii) Business Auto insurance covering the ownership, maintenance or use of any owned, non-owned hired automobile with a limit of not less than One Million Dollars ($1,000,000.00) per occurrence/annual aggregate for bodily injury, including death and property damage liability; and (iv) Professional Liability insurance covering errors and omissions, with a limit of not less than One Million Dollars ($1,000,000.00) per occurrence.
Customer will provide ICON with a Certificate of Insurance showing that the foregoing insurance policies are in full force and effect upon ICON’s request. Any approval by ICON of any insurance policies will not relieve Customer of any responsibility hereunder, including but not limited to, claims in excess of limits and coverages described above. Each liability insurance policy obtained by Customer will name ICON as an "additional insured" except on subsection (i) above. Each policy will expressly provide that it will not be subject to cancellation or material change without at least thirty (30) days' prior Notice to ICON. Nothing contained in this Section limits the Parties' liability to the other to the limits of insurance certified or carried.
- Legal Compliance. Customer shall comply with the U.S. Foreign Corrupt Practices Act and all applicable export laws, restrictions, and regulations of the U.S. and foreign agency or authority. Each party agrees that it shall comply with applicable law in performance of its obligations under this Agreement.
- Miscellaneous. This Agreement is not assignable or transferable by Customer without the prior written consent of ICON; any attempt to do so shall be void. ICON may assign this Agreement in whole or in part, or subcontract the performance of Services to third parties. Services may be used solely by Customer for Customer's internal use for Customer's own benefit. The parties agree that they are independent contractors and that this Agreement and relations between ICON and Customer hereby established do not constitute a joint venture, agency or contract of employment between them, or any other similar relationship. Neither party has the right or authority to assume or create any obligation or responsibility on behalf of the other. Any notice, report, approval or consent required or permitted hereunder shall be in writing. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Any waivers or amendments shall be effective only if made in writing. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Time is of the essence of this Agreement.
- Governing Law and Jurisdiction. This Agreement, which is in English, shall be interpreted in accordance with the commonly understood meaning of the words and phrases hereof in the United States of America. Any dispute, controversy or claim arising out of or relating to this Agreement or to a breach thereof, including its interpretation, performance or termination, shall be finally resolved by arbitration. The arbitration shall be conducted in English and in accordance with the commercial rules of the American Arbitration Association, which shall administer the arbitration and act as appointing authority. The arbitration, including the rendering of the award, shall take place in Baltimore, Maryland, which shall be the exclusive forum for resolving such dispute, controversy or claim. For the purposes of this arbitration, the provisions of this Agreement and all rights and obligations thereunder shall be governed and construed in accordance with the laws of the State of Maryland, United States of America, without regard to the conflicts of laws provisions thereof. The decision of the arbitrators shall be binding upon the parties hereto, and the expense of the arbitration (including without limitation the award of attorneys' fees (as provided herein) shall be paid as the arbitrators determine. The decision of the arbitrators shall be executory, and judgment thereon may be entered by any court of competent jurisdiction. Notwithstanding anything contained in this paragraph, each party shall have the right to institute judicial proceedings against the other party or anyone acting by, through or under such other party in any federal or state court located within the County of Baltimore, Maryland, USA in order to enforce the instituting party's rights hereunder through reformation or to obtain injunctive relief ("Court Actions"). Accordingly, each party agrees to the exclusive and personal jurisdiction of the state and federal courts located within the County of Baltimore, Maryland, USA for such court actions.
- Compliance with Laws and Regulations. The Parties must comply with all applicable laws, orders, codes and regulations in the performance of this Agreement.
- Relationship. Customer is not granted any exclusive rights of any nature whatsoever by this Agreement. This Agreement is not intended to create a relationship such as a partnership, franchise, joint venture, agency, master/servant or employment relationship. Neither Party may act in a manner which expresses or implies a relationship other than that of an independent contractor, nor bind the other party.