HomeMy WebLinkAboutPR 22444: AUTHORIZING THE PURCHASE OF ELEVEN ADVANCED CARDIA MONITOR/DEFIBRILLATORS AND TWO AUTO PULSE CARDIOPULMONARY RESUSITATION DEVICES Cin of 7 >
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INTEROFFICE MEMORANDUM
Date: March 16, 2022
To: The Honorable Mayor and City Council
Through: Ron Burton,City Manager
From: Greg Benson, Fire Chiefly
RE: P. R. No.22444
Introduction:
The intent of this Agenda item is to seek the City Council the approval of Proposed Resolution
22444, authorizing the purchase of eleven advanced cardiac monitor/defibrillators and two
Auto Pulse Cardiopulmonary Resuscitation (CPR) devices from Zoll Medical Corporation.
The cost is $461,252.61 allocated over 60 months at 0% interest. The monthly cost for
updated advanced cardiac equipment will be $7,687.54. Replacing and upgrading aging
monitors and adding two Auto Pulse CPR devices will improve patient care in the City of Port
Arthur at a cost not to exceed$461,252.61.
Background:
PAFD provides first response medical care to the residents and visitors in the City of Port
Arthur on a 24-hour basis. PAFD responded to 8,468 medical calls in 2021 and 106 cardiac
arrests responses. Medical-related incident responses are 73.7% of the 2021 total emergency
incident response volume. The proposed monitors will replace current eight to ten-year-old
monitors nearing the end of service life. The new monitors will have expanded patient care
capability, including monitoring of respiratory rate, oxygen saturation, and 12 lead heart
rhythm ability. Acquisition of the Zoll Auto Pulse mechanical CPR device integrates with the
- Zoll cardiac monitors providing monitoring of compression depth, rate, release, and Bag Valve
Mask (BVM) respiratory tracking. The enhanced equipment capability will be valuable to
meet medical incident needs while enhancing patient care and increasing survivability rates
when a patient is in cardiac arrest.
Due to manufacturing cost increases, cardiac equipment pricing is rising by 10%, effective
April 1, 2022. Approval at this time will stabilize the cost with no increased price in the next
60 months. Annual maintenance costs for five years are included in the contract with a
baseline of initial supplies. Payment will not be required until net 30 after delivery of the
"Remember, we are here to serve the Citizens of Port Arthur"
P.O.Box 1089 X Port Arthur,Texas 7764I-1089 X 409.983.8101 X FAX409.982.6743
City of
ort rthu �
Texas
www.Po rtArth u rTx.gov
cardiac monitors, currently estimated to be 6-12 months from order. The budget impact will
not occur until the 2022-2023 Budget Year.
Budget Impact:
There is no immediate budgetary impact to the city with this request to order the eleven (11)
new cardiac monitors. The city will receive credit for the legacy cardiac monitoring units of
$71,500, which is has been proposed for upgrading to the new units. Funding is available in
001-19-047-8522-00-30-000.
Recommendation:
It is recommended that the City Council approve P. R. No. 22444 and authorize the City
Manager to enter into an agreement with Zoll Medical Corporation, which is a sole source
vendor for the cardiac monitoring units.
"Remember,we are here to serve the Citizens of Port Arthur"
P.O.Box 1089 X Port Arthur,Texas 77641-1089 X 409.983.8101 X FAX 409.982.6743
P .R. No . 22444
3/16/202 gb/lm
RESOLUTION NO.
A RESOLUTION AUTHORIZING THE PURCHASE OF ELEVEN CARDIAC
MONITORS AND TWO AUTO-PULSE MECHANICAL CPR DEVICES FROM
ZOLL MEDICAL CORPORATION OF CHELMSFORD, MASSACHUSETTS, IN
THE AMOUNT OF $461 ,252 . 61 , WITH 60-MONTH FINANCING AT 0% ;
FUNDING IS AVAILABLE IN MEDICAL SUPPLIES ACCOUNT NUMBER
001-19-047-8522-00-30-00 , AND PROVIDING FOR CONTRACT
TERMINATION IN THE EVENT OF NONAPPROPRIATION FOR ANY
FISCAL BUDGET YEAR
WHEREAS, the Fire Department has found :_t necessary to
purchase eleven (11) cardiac monitors to replace aging monitors at
the end of their active service life with outdated capability; and,
WHEREAS, the Fire Department has found it necessary to add two
(2) Auto Pulse mechanical CPR devices; and,
WHEREAS , the Fire Department solicited a sole source quote
from Zoll Medical Corporation, with a responsive quote in the
amount of $461, 252 . 61 allocated to 60 monthly payments (see the
attached quote and sole source letter as Exhibit A) ; and,
WHEREAS, funds are available for this purchase in Medical
Supplies account number 001-19-047-8522-00-30-000; and,
WHEREAS, the Port Arthur Fire Department provides first
response emergency medical care to all residents and visitors in
the City of Port Arthur, with approximately 73 . 7% of responses
medically related. A critical component of patient care quality is
monitoring vital signs, oxygen levels, and heart rhythm. Heart
monitors with 12 lead electrocardiographic capabilities will
provide earlier recognition of cardiac status for more immediate
care initiation. The Auto pulse will provide for higher quality CPR
P.R. No.22444
3/16/202 gb/lm
during a cardiac arrest through effective chest compressions . The
Zoll monitors and auto pulse integrate to provide an enhanced view
of patient status, including real-time ventilation feedback on
volume and rate during patient care; and,
WHEREAS, quality patient medical care requires updated medical
equipment to meet care needs . The proposed cardiac monitors will
provide a standardized tool for Fire Department members in meeting
patient care needs is all types of medical incidents, including
life-threatening. The proposed cardiac monitors from Zoll will
contribute high-quality emergency medical care for residents and
visitors ; and
WHEREAS, the City Council deems it in the public interest to
purchase this equipment; and
WHEREAS, the equipment is essential for the City of Port
Arthur, Texas to perform its governmental functions; and
WHEREAS, the City Council hereby finds and determines that the
execution of one or more Master Application Service Provider
Agreement and Security Agreement in the principal amount not
exceeding the amount stated above for the purpose of acquiring the
equipment is appropriate and necessary to the functions and
operations of the municipality; and
WHEREAS, the Master Application Service Provider Agreement and
Security Agreement are multi-year agreements that do not obligate
future year revenues because the agreements expressly provide that
the City of Port Arthur may terminate the agreement at the
P.R. No.22444
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commencement of any fiscal year for which no appropriation is made
for the continued purchasing of said equipment .
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF PORT ARTHUR:
Section 1 . That the facts and opinions in the preamble are
true and correct .
Section 2 . That the City Council hereby authorizes the
purchase of eleven cardiac monitors and two auto-pulse mechanical
CPR devices for the Fire Department from Zoll Medical Equipment,
Chelmsford, Massachusetts . In the amount of $461, 252 . 61 Sole Source
Vendor.
Section 3 . That it is hereby found and determined that the
terms of the Master Application Service Provider Agreement and
Security Agreement are in the best interest of the City of Port
Arthur for the acquisition of the equipment .
Section 4 . That the City Manager of the City of Port Arthur
is authorized to accept the foregoing agreements as attached as
Exhibit "B. "
Section 5 . That the Master Application Service Provider
Agreement and Security Agreement and the acquisition and financing
of the equipment purchase under the terms and conditions therein
described are hereby approved in substantially the same form as
attached hereto as Exhibit "B, " and with such changes as are
requested by the City Attorney. The City Manager is authorized to
execute, acknowledge and deliver the financing documents with any
P.R. No.22444
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changes, insertions and omissions therein as may be approved. The
City Secretary is authorized to affix the official seal of the City
of Port Arthur to the financing documents and attest the same .
Section 6 . That pursuant to Local Government Code, Sec .
271 . 903 . COMMITMENT OF CURRENT REVENUE. (a) If a contract for the
acquisition, including lease, of real or personal property retains
to the governing body of a local government the continuing right to
terminate at the expiration of each budget period of the local
government during the term of the contract, is conditioned on a
best efforts attempt by the governing body to obtain and
appropriate funds for payment of the contract, or contains both the
continuing right to terminate and the best efforts conditions, the
contract is a commitment of the local government' s current revenues
only. (b) In this section, "local government" means a municipality,
county, school, school district, special purpose district or
authority, or other political subdivision of this state .
Section 7 . That the attached Master Application Service
Provider Agreement and Security Agreement are legally permissible
because the agreements contain one or more of the following
provision (s) : (1) providing the city with the right to terminate
the contract at the end of each budget year; (2) conditioning the
contract on a best efforts attempt to obtain an appropriate funding
for payment of the contract; or (3) containing both a right to
terminate the agreement at the end of each budget year and the
best-efforts language .
P.R. No.22444
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Section 8 . That the City of Port Arthur' s obligations under
the Master Application Service Provider Agreement and Security
Agreement shall be subject to annual appropriation or renewal by
the Governing Body as set forth in each agreement and the
Municipality' s obligations under the Agreements shall not
constitute general obligation of the Municipality or indebtedness
under the Constitution or laws of the State, subject to the
provisions of Section 271 . 903 of the Texas Local Government Code .
Section 9 . That a copy of the caption of this Resolution
shall be spread upon the Minutes of the City Council .
READ, ADOPTED, AND APPROVED, this day of
2022 AD, at a Regular Meeting of the City Council of the City of
Port Arthur, Texas by the following vote : AYES :
Mayor: ;
Councilmembers :
NOES : .
Thurman Bill Bartie
Mayor
ATTEST:
Sherri Bellard
City Secretary
P.R. No.22444
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APPROVED AS TO FORM:
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APPROVED FOR ADMINISTRATION:
Ronald Burton
City Manager
Greg Benson
Fire Chief
APPROVED AS TO AVAILABILITY OF FUNDS:
Kandy Dane l
Finance Director
1 A „
Clif on Williams, CPPB
Purchasing Manager
P.R. No.22444
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EXHIBIT "A"
269 Mill Rood
ZOL Chelmsford,Massachusetts 01824-4105
® 978 421.9655(main)
978.421.0025(fax)
www.zoll.com
March 10, 2022
Ura Lara
Port Arthur Fire Department
300 Waco Avenue
Port Arthur, TX 77641
Dear Ura:
Thank you for your interest in the AutoPulse®Non-invasive Cardiac Support Pump, a
revolutionary new resuscitation system that offers the promise of normal blood flow during
sudden cardiac arrest.
Please be aware that ZOLL®Medical Corporation is the only company that manufactures and
markets the AutoPulse. No other organization is authorized to sell the product in the United
States. Further,there are no other devices on the market today that can mimic the AutoPulse's
unique mechanism of action and achieve its unprecedented clinical results.
Lastly,no vendor or dealer is authorized to provide warranty or service.
Should you have any questions or require additional information please don't hesitate to contact
me at(800)348-9011 x 9439.
Sincerely,
9451-/76+44-41-4:
Jody Podgurski
Local Contract Specialist
2021.09-20 v.3
269 Mill Rood
Chelmsford,Massachusetts 01824-4105
ZOILL® 978 42 1 9655(main)
978.421-0025(fax)
www.zoll.com
March 10, 2022
Ura Lara
Port Arthur Fire Department
300 Waco Avenue
Port Arthur, TX 77641
Dear Ura:
We appreciate your selection of ZOLL®products. This letter serves as confirmation that
ZOLL® Medical Corporation at 269 Mill Road in Chelmsford, Massachusetts, is the sole
manufacturer and source of X Series® and X Series Advanced Defibrillators for the EMS
Market. ZOLL® or Steven Bagwell, EMS Account Executive,will not sell an X Series®
and X Series Advanced Defibrillator to Port Arthur Fire Department through any vendor
or dealer and no vendor or dealer is authorized to provide warranty or service.
Should you have any questions or require additional information please contact me at
800-348-9011 x 9439.
Sincerely,
961._/4 4
Jody Podgurski
Contract Specialist
2021-09-20 v.3
P.R. No. 22444
3/16/202 gb/lm
EXHIBIT "B"
ZOLL Medical Corporation
ZOL ® 269 Mill Road
Chelmsford, MA 01824-4105
Federal ID#04-2711626
Phone: (800) 348-9011
Fax: (978) 421-0015
Email: esales@zoll.com
Quote No: Q-19449 Version: 3
Port Arthur Fire Department Quote No: Q-19449
300 Waco Avenue Version: 3
Port Arthur, TX 77641
Issued Date: March 15, 2022
ZOLL Customer No: 104878 Expiration Date: March 31, 2022
Ura Lara Terms: 60 Monthly payments at 0%
(409) 983-2011 interest starting Net 30.
ura.lara@portarthurtx.gov
FOB: Shipping Point
Freight: Prepay&Add
Prepared by: Steve Bagwell
EMS Territory Manager
sbagwell@zoll.com
+18329287574
Item Contract Part Number Description Qty List Price Adj.Price Total Price
Reference
1 601-2231111-01 X Series Advanced Monitor/Defibrillator-12-Lead 11 $44,519.25 $34,725.02 $381,975.22
ECG,Pacing,SpO2,SpCO,EtCO2,BVM,NIBP,
CPR Expansion Pack
Includes:TBI Dashboard,4 trace tri-mode display
monitor/defibrillator/printer,advisory algorithm,
advanced communications package(Wi-Fi,
Bluetooth,USB cellular modem capable)USB data
transfer capable and large 6.5in(16.5cm)diagonal
screen.Accessories Included: MFC cable and CPR
connector,A/C power cord,One(1)roll printer paper,
6.6 Ah Li-ion battery,Operators Manual,Quick
Reference Guide,and One(1)-year EMS warranty.
Parameter Details:Real CPR Help-Dashboard
display of CPR Depth and Rate for Adult and
Pediatric patients,Visual and audio prompts to coach
CPR depth(Adult patient only),Release bar to
ensure adequate release off the chest,Metronome to
coach rate for Adult and Pediatric patients.See-Thru
®CPR artifact filtering•Interpretative 12-Lead ECG
(Full 12 ECG lead view with both dynamic and static
12-lead mode display.12-Lead OneStep ECG cable
-includes 4-Lead limb lead cable and removable
precordial 6-Lead set)•ZOLL Noninvasive Pacing
Technology•Real BVM Help: Dashboard provides
real-time ventilation feedback on both volume and
rate for intubated and non-intubated patients.
AccuVent Cable included.(Accuvent disposable
sensors sold separately)•Welch Allyn NIBP with
Smartcuff. 10 foot Dual Lumen hose and SureBP
Reusable Adult Medium Cuff•Masimo Sp02&
SpCO with Signal Extraction Technology(SET),
Rainbow SET®-EtCO2 Oridion Microstream
Technology.Microstream tubing set sold separately•
2 8900-0400 CPR Stat-padz HVP Multi-Function CPR 3 $605.64 $496.62 $1,489.86
Electrodes-8 pair/case
Page 1 of 4
ZOLL Medical Corporation
269 Mill Road
Chelmsford, MA 01824-4105
ZOL ® Federal ID# 04-2711626
Phone: (800) 348-9011
Port Arthur Fire Department Fax: (978)421-0015
Quote No: Q-19449 Version: 3 Email: esales@zoll.com
Item Contract Part Number Description Qty List Price Adj.Price Total Price
Reference
3 8300-000676 OneStep Cable,X Series 14 $459.64 $376.90 $5,276.60
4 8009-0020 CPR-D-padz and CPR Stat Padz Connector for R 14 $405.56 $332.56 $4,655.84
Series
5 8900-000220-01 OneStep Pediatric CPR Electrode(8 per case) 3 $702.98 $576.44 $1,729.32
6 8000-001128 Accuvent Flow Tube(Box of 10) 3 $625.00 $512.50 $1,537.50
7 8000-0580-01 Six hour rechargeable Smart battery 22 $519.75 $426.20 $9,376.40
8 8000-000876-01 Paper,Thermal,w/Grid,BPA Free(Box of 6) 10 $24.72 $20.27 $202.70
9 8000-000393-01 X Series Carry Case,Premium 11 $350.00 $350.00 $3,850.00
10 8778-89004-WF X Series-Worry-Free Service Plan-4 Years At 11 $6,100.00 $5,185.00 $57,035.00
Time of Sale
Includes:Annual preventive maintenance,27%
discount on new cables,27%discount on additional
lithium SurePower Batteries,discount on parameter
upgrades,Lithium-ion SurePower II Battery
replacement upon failure,and accidental damage
coverage(see comments).Shipping and use of a
Service Loaner during repairs,no charge shipping.
Extended warranty is a continuation of the EMS One
Year Product Limited Warranty. • ACCIDENTAL
DAMAGE COVERAGE: Includes one case
replacement per year per device.This coverage
excludes devices that are deemed beyond repair
and/or catastrophic damage. • BATTERY
REPLACEMENT PROGRAM:Batteries must be
maintained per ZOLL's recommended maintenance
program--Batteries are replaced upon failure,one
for one,throughout the term of the ExpertCare
Service contract,should the SurePower battery or
SurePower Charger display a fault--Batteries must
be evaluated and confirmed of failure through ZOLL
Technical Support and/or an on-site field service
technician.
11 8400-110045 CaseReview Premium Subscription,R Series and 11 $2,054.85 $2,054.85 $22,603.35
X Series,5 Year-Hosted
Provides detailed post-case information,including
CPR quality on compression depth,rate,pause time
and release velocity,as well as ECG,shocks,EtCO2
and Sp02 vital signs.
12 6008-9901-61 ZOLL X Series Trade In Allowance(EMS Group) 11 ($6,500.00) ($71,500.00)
See Trade Unit Considerations.
Page 2 of 4
ZOLL Medical Corporation
269 Mill Road
Chelmsford, MA 01824-4105
ZOLL® Federal ID#04-2711626
Phone: (800) 348-9011
Port Arthur Fire Department Fax: (978) 421-0015
Quote No: Q-19449 Version: 3 Email: esales@zoll.com
Item Coat Part Number Description Qty List Price Adj.Price Total Price
Reference
13 8700-0730-01 AutoPulse®System with Pass Thru 2 $11,324.85 $10,758.61 $21,517.22
Includes:Backboard,User Guide,Quick Reference
Guide,Shoulder Restraints,Backboard Cable Ties,
Head Immobilizer,Grip Strips, In-service Training
DVD,and one year warranty.
14 8700-0752-01 AutoPulse Li-Ion Battery 6 $849.75 $807.26 $4,843.56
15 8700-0753-01 AutoPulse SurePower Charger 2 $2,363.85 $2,245.66 $4,491.32
Includes User Guide and U.S Power Cord.Standard
one(1)year warranty.U.S.Tests,Charges and
automatically verifies battery charge level
16 8700-000850-40 AutoPulse Quick Case-Blue 2 $509.85 $484.36 $968.72
All-in-one carrying case and patient moving sheet for
the Autopulse Resuscitation System.
17 8700-0706-01 LifeBand 3 pack 12 $0.00 $0.00 $0.00
Single-use chest compression band(3 per package) _
18 8778-008744 AutoPulse Worry-Free Extended Warranty 4-Year 2 $5,600.00 $5,600.00 $11,200.00
(at time of equipment sale)
Subtotal: $461,252.61
Total: S461,252.61
Trade Unit Considerations
Trade-In values valid through March 31, 2022 if all equipment purchased is in good operational and cosmetic condition and includes all standard
accessories. Trade-In values are dependent on the quantity and configuration of the ZOLL devices listed on this quotation. Customer assumes
responsibility for shipping trade-in equipment at the quantities listed on the trade line items in this quotation to ZOLL's Chelmsford Headquarters within
60 days of receipt of new equipment.Customer agrees to pay cash value for trade-in equipment not shipped to ZOLL on a timely basis.
UCC Financing Statement
By placing a Purchase Order in response to this quotation,Customer agrees that it thereby grants to ZOLL a purchase money security interest in all
the goods referenced by such purchase order and acknowledges that ZOLL may file a UCC Financing Statement ordering such purchase money
security interest.Customer further agrees to provide a signed Security Agreement to ZOLL prior to shipment pursuant to such purchase order.
To the extent that ZOLL and Customer, or Customer's Representative have negotiated and executed overriding terms and conditions
("Overriding T's&C's"),those terms and conditions would apply to this quotation. In all other cases,this quote is made subject to ZOLL's
Standard Commercial Terms and Conditions("ZOLL T's&C's")which for capital equipment,accessories and consumables can be found
at http://www.zoll.com/GTC and for software products can be found at http://www.zoll.com/SSPTC and for hosted software products can
be found at http://www.zoll.com/SSHTC. Except in the case of overriding T's and C's,any Purchase Order("PO") issued in response to
this quotation will be deemed to incorporate ZOLL T's&C's,and any other terms and conditions presented shall have no force or effect
except to the extent agreed in writing by ZOLL.
1.This Quote expires on March 31,2022. Pricing is subject to change after this date.
2.Applicable tax,shipping& handling will be added at the time of invoicing.
3.All purchase orders are subject to credit approval before being accepted by ZOLL.
Page 3 of 4
ZOLL Medical Corporation
ZOIL 269 Mill Road
Chelmsford, MA 01824-4105
® Federal ID#04-2711626
Phone: (800) 348-9011
Port Arthur Fire Department Fax: (978) 421-0015
Quote No: Q-19449 Version: 3 Email: esales@zoll.com
4.To place an order, please forward the purchase order with a copy of this quotation to esales@zoll.com or via fax to 978-421-0015.
5.All discounts from list price are contingent upon payment within the agreed upon terms.
6. Place your future accessory orders online by visiting www.zollwebstore.com.
Order Information(to be completed by the customer)
[ ] Tax Exempt Entity(Tax Exempt Certificate must be provided to ZOLL)
[ ] Taxable Entity(Applicable tax will be applied at time of invoice)
BILL TO ADDRESS SHIP TO ADDRESS
Name/Department: _ Name/Department:
Address: Address:
City/State/Zip Code: City/State/Zip Code:
Is a Purchase Order(PO) required for the purchase and/or payment of the products listed on this quotation?
[ ] Yes PO Number: PO Amount:
(A copy of the Purchase Order must be included with this Quote when returned to ZOLL)
[ ] No (Please complete the below section when submitting this order)
For organizations that do not require a PO,ZOLL requires written execution of this order.The person signing below represents and
warrants that she or he has the authority to bind the party for which he or she is signing to the terms and prices in this quotation.
Port Arthur Fire Department
Authorized Signature:
Name:
Title:
Date:
Page 4 of 4
ALS/BLS Software Solutions Master Application Service Provider Agreement
1. Orders.ZOLL Medical Corporation("ZOLL")shall provide the ASP Services,Implementation Services and Support Services identified in any order or
contract("Order")between ZOLL and Port Arthur,TX Fire Department ("Customer")incorporating this Software Solutions Master Application Service Provider
Agreement(together with each such Order,the"Agreement").ASP Services are further defined in Section 3.Implementation Services are further defined in Section
4. Support Services are further defined in Section 5.The ASP Services,Implementation Services,and Support Services are each,and are collectively,"Services". The
terms and conditions set forth in this Agreement shall only apply to ALSBLS Software Solutions products that are used with ZOLL Medical Corporation
defibrillators. For the sake of clarity,these terms and conditions do not apply to any ZOLL patient care reporting software.
2. Payment,Customer shall pay fees to ZOLL for Services as provided in any Order and this Agreement("Fees").Unless otherwise provided in the applicable
Order,Customer will pay ZOLL all Fees due under this Agreement within thirty(30)days after the date of ZOLL's invoice.The first invoice will•be sent after the
Deployment Effective Date. "Deployment Date"means the date upon which the deployment of the ASP Services is complete and it is able to function as described in the
warranty set forth in this Agreement,regardless of whether Customer actually uses such ASP Services."Deployment Effective Date"means the earlier of(a)the
Deployment Date orb)90 days from the date after ZOLL's shipment of defibrillators that are included on the Order(the"Latest Deployment Date"),unless a delay
in the Deployment Date has been caused by ZOLL,in which case the Deployment Effective Date shall be postponed by a number of days equal to the delay that ZOLL
has caused. Fees are non-refundable other than as expressly set forth herein.Amounts not paid when due will accrue interest at the rate of 1.5%per month,or the
maximum allowed by law,whichever is less.Customer shall pay all expenses(including reasonable attomey's fees)incurred by ZOLL in connection with collection
of late payments.Any amounts not paid by Customer when due may result in the forfeiture by Customer,in ZOLL's sole discretion,of any discounts previously
offered by ZOLL.In addition,ZOLL may cease providing any or all of the Services if any invoice is not paid in a timely manner,in which event ZOLL will not be
liable to Customer for any damages caused by such cessation.Payment terms are subject to ZOLL's credit approval.Fees exclude all applicable sales,use and other
taxes and all applicable export and import fees,customs duties and similar charges("Taxes").
3. ASP Services."ASP Services"means the hosting and maintenance of ZOLL software,as modified,updated,and enhanced(the"Underlying Software"),for remote
electronic access and use by Registered Users on the website with a unique URL to be provided by ZOLL to Customer(the"ZOLL Site")in substantial conformity
with the instructions for use,documentation and users manuals from time-to-time provided by ZOLL (the "Documentation"),as listed in any Order,on and
after the Implementation Date(defined below)for such services and before that Order has expired or been terminated in accordance with the Agreement.Customer
acknowledges that the ASP Services are only compatible with ZOLL equipment that has been enabled and configured for use with the ASP Services in
accordance with the Documentation and only with the browser and other technical environment that supports the use of the ASP Services in accordance with the
Documentation.
3.1. Provision of ASP Services.Subject to the terms and conditions of the Agreement,ZOLL will use commercially reasonable efforts to make the ASP Services
available to Customer and Customer's employees,directors,principals,partners,consultants and agents authorized to use ASP Services on behalf of Customer and
registered through the ZOLL Site for such use("Registered Users")through the ZOLL Site over normal network connections in accordance with the Documentation,
excepting downtime due to necessary maintenance and troubleshooting.Customer,not ZOLL,shall be responsible for controlling Registered Users and protection of
confidentiality of its login identifications and passwords.Customer acknowledges that(i)it is responsible for maintaining its interface and connectivity to the ASP
Services and(ii)any facilities used for provision of the ASP Services may be owned or operated by ZOLL,or a ZOLL affiliate or a third party,or any combination of
such facilities,as determined by ZOLL.Customer acknowledges that ZOLL may modify and upgrade the ASP Services,on an ongoing basis,to improve or adapt the
ASP Services.Without limiting the foregoing,ZOLL will have the right,in its sole discretion,to develop,provide and market new,upgraded or modified ASP Services
to Customer,including adding,removing or modifying the functionality or features of the ASP Services accessible by Registered Users. ZOLL will use commercially
reasonable efforts to notify Customer within a reasonable period of time prior to the implementation of such changes so that Customer is reasonably informed of alterations
to the ASP Services that will affect the ASP Services and Customer's use of them.Notwithstanding anything to the contrary in the Agreement,ZOLL may cease providing
any ASP Services upon at least six months advance notice to Customer.
3.2. Access Software.Subject to the terms and conditions of this Agreement,ZOLL grants to Customer,during the Term,a non-exclusive,non-transferable,non-
sublicensable license for Registered Users to access and use the ASP Services using the ZOLL software that Registered Users may download at the ZOLL Site to access
the ASP Services,as modified,updated and enhanced(the"Access Software"),each as made available to Customer through the ZOLL Site,solely for Customer's internal
business purposes and solely in accordance with the Documentation.Access Software and Underlying Software are,collectively,the"Software".
3.3. Restrictions.Customer shall not,and shall not permit any third party to:(a)use,reproduce,modify,adapt,alter,translate or create derivative works from the ASP
Services,Software or Documentation;(b)merge the ASP Services,Software or Documentation with other software or services;(c)sublicense,distribute,sell,use for
service bureau use,lease,rent,loan,or otherwise transfer or allow access to the ASP Services,Software or the Documentation to any third party;(d)reverse engineer,
decompile,disassemble,or otherwise attempt to alter or derive the Source Code for the ASP Services or Software;(e)remove,alter,cover or obfuscate any copyright
notices or other proprietary rights notices included in the ASP Services,Software or Documentation;or(f)otherwise use or copy the ASP Services, Software or
Documentation in any manner not expressly permitted by the Agreement. Customer agrees not to use the ASP Services in excess of its authorized login protocols.
Customer shall immediately notify ZOLL of any unauthorized use of Customer's login ID,password or account or other breach of security.If Customer becomes aware
of any actual or threatened activity contemplated by the restrictions on use set forth in this section,Customer will,and will cause Registered Users to,immediately take
all reasonable measures necessary to stop the activity or threatened activity and to mitigate the effect of such activity including:(i)discontinuing and limiting any improper
access to any data;(ii)preventing any use and disclosure of improperly obtained data;(iii)destroying any copies of improperly obtained data that may have been made
on their systems;(iv)otherwise attempting to mitigate any harm from such events;and(v)immediately notifying ZOLL of any such event so that ZOLL may also attempt
to remedy the problem and prevent its future occurrence.
3.4. Service Level Agreement.
3.4.1. Downtime. "Downtime",expressed in minutes,is any time the ASP Services are not accessible to Registered Users.
3.4.2. Planned Downtime."Planned Downtime"is Downtime during which ASP Services may not be available in order for ZOLL to continue to provide commercially
reasonable services, features and performance to its customers. Planned Downtime includes, but is not limited to: (a) Standard Maintenance; and (b) Emergency
Maintenance."Standard Maintenance"is performed when upgrades or system updates are desirable."Emergency Maintenance"is performed when a critical system
update must be applied quickly to avoid significant Downtime.Standard Maintenance may be performed weekly on Monday and Wednesday between the hours of 7 p.m.
to 11 p.m.in Broomfield,Colorado.ZOLL will provide Customer with notice at least 24 hours in advance of Standard Maintenance.
3.43. Excused Downtime."Excused Downtime"time is Downtime caused by:(a)services,software or hardware provided by anyone or any entity other than ZOLL,
(b)software,services or systems operating outside of a ZOLL Site,including any software or systems operating on a Customer's premises(including ZOLL software);
(c)a Force Majeure Event or(d)Customer's failure to comply with its obligations under the Agreement or use of the ASP Services in ways that were not intended.
3.4.4. Unplanned Downtime. Unplanned Downtime in a calendar month is expressed as a percentage calculated as follows:
(Downtime-(Planned Downtime+Excused Downtime)) x]00 =x%,where"x"is Unplanned Downtime. •
Total number of minutes in the calendar month
3.4.5. Unplanned Downtime Goal.ZOLL shall provide the ASP Services such that there is less than 1%of Unplanned Downtime in a calendar month(the"Unplanned
Downtime Goal"). The ASP Services covered by the Unplanned Downtime Goal are those for which Customer has paid all Fees when due and is using in the course of
carrying out its normal business operations in accordance with the Agreement.
3.4.6. Revocation of Administrative Rights.Notwithstanding anything to the contrary in the Agreement,ZOLL may revoke administrative rights,including database
access rights,if the use of any such rights results in Downtime.
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•
3.4.7. Customer Content;Security;Backup.
3.4.7.1.Customer Content. As between ZOLL and Customer,and without limiting the rights of any patient,Customer will retain all right,title and interest in and to all
data,information or other content provided by Customer in its use of the ASP Services("Customer Content");provided,however,that ZOLL may de-identify and use
Customer Content for any lawful purpose consistent with all applicable law.
3.4.7.2.Security. Subject to Customer's obligations under this Agreement,ZOLL will implement commercially reasonable security measures within the ASP Services
in an attempt to prevent unlawful access to Customer Content by third parties. Such measures may include,where appropriate,use of updated firewalls,commercially
available virus screening software,logon identification and passwords,encryption,intrusion detection systems,logging of incidents,periodic reporting,and prompt
application of current security patches and virus definitions.
3.4.7.3.Backup of Customer Content(Not Applicable to Remote View). Although ZOLL will use commercially reasonable efforts to maintain the integrity of the
Customer Content,to back up the Customer Content,and to provide full and ongoing access to the ASP Services,loss of access to the ASP Services and loss of Customer
Content may occur.Customer will make provision for additional back-up storage of any critical Customer Content and shall be responsible for compliance with all records
retention requirements applicable to Customer. ZOLL will not be responsible for any loss,corruption of or inaccessibility of the Customer Content due to interruption in
the ASP Services or otherwise arising out of circumstances not within ZOLL's control.
3.4.7.4.Availability of Customer Content(Not Applicable to Remote View). It is Customer's responsibility to maintain any Customer Content that it requires for
archival purposes,ongoing management of its operations and compliance with applicable records retention requirements.Unless specified otherwise in the Agreement,
ZOLL will store Customer Content,other than Inactive Customer Content as defined below(the"Active Customer Content"),in ZOLL's working data set until the
earlier of(i)five years(calculated from the date of creation of such Customer Content,or ZOLL's receipt of such Customer Content,whichever is later)or(ii)the
expiration or termination of this Agreement or the Order under which such Active Customer Content was stored (the"Active Retention Period"). Upon the expiration
of the Active Retention Period,ZOLL will notify Customer in writing and will provide Customer the option,which Customer shall exercise by informing ZOLL in
writing,within 30 days of receiving the notice,that either(a)Customer wishes to receive Active Customer Content in a database determined by ZOLL in its sole and
absolute discretion(a"Database"),or(b)Customer will pay ZOLL,at ZOLL's then-current storage rates and upon ZOLL's then-current terms and conditions,to continue
to store the Active Customer Content. If Customer fails to exercise one of the foregoing options within such 30-day period,ZOLL will have the right to destroy the
Active Customer Content. During the time ZOLL stores Customer Content for Customer hereunder,ZOLL may periodically identify Customer Content that has had no
activity associated with it for at least 180 days("Inactive Customer Content")and will notify Customer in writing of its intent to remove the Inactive Customer Content
from ZOLL's working data set and destroy such data,unless Customer requests,in writing,within 30 days of receiving the notice from ZOLL,that either(z)Customer
wishes to receive the Inactive Customer Content in a Database,or(y)Customer will pay ZOLL,at ZOLL's then-current storage rates and upon ZOLL's then-current
terms and conditions,to continue to store such Inactive Customer Content. If Customer fails to exercise one of the foregoing options within such 30-day period,ZOLL
will have the right to destroy the applicable Inactive Customer Content in its possession or under its control. Except for this Section 3.4.7.4,the terms of Section 3.4
(including,without limitation,the Unplanned Downtime Goal)do not apply to Customer's access of Inactive Customer Content.Customer represents,warrants and agrees
that it(A)is solely responsible for determining the retention period applicable to it with respect to Customer Content maintained by ZOLL;(B)has consulted with or has
had the opportunity to consult with legal,information governance or records management professionals;and(C)is not relying upon ZOLL to assist with determining the
records maintenance or retention requirements applicable to it.
3.4.8. Remedies.A"Service Credit"means a percentage of the monthly Fee to be credited to Customer(subject to Customer's written request therefor and ZOLL's
verification thereof)for any ASP Service for which the Unplanned Downtime Goal is exceeded in a calendar month.For any calendar month where the aggregate total of
Unplanned Downtime for any ASP Service exceeds one percent ZOLL will provide a 10%Service Credit towards Customer's monthly Fee for such ASP Service that was
affected;provided,that Customer(i)requests such Service Credit in writing within 30 days of the end of the calendar month in which such Unplanned Downtime occurred,
(ii)includes in such request the nature of,and date and time of such Unplanned Downtime and(iii)such Unplanned Downtime is verified by ZOLL.Such Service Credit
will be applied to a future month's invoice for such ASP Services,which typically is two months later.Failure to submit a written request for Service Credit as provided
in this Section 3.4.8 shall constitute a waiver of such Service Credit by Customer.Further,Service Credits shall not be issued if Customer is not current on all Fees due
and payable.The remedy set forth in this Section 3.4.8 shall be the Customers'sole and exclusive remedy with respect to ZOLL exceeding the Unplanned Downtime
Goal.
3.4.9. Modifications.Changes to this Section 3.4 may be made from time to time at ZOLL's sole discretion.Customer will be notified of any such changes that are
material.
4. Implementation Services.ZOLL shall provide ASP Services implementation,training and any related services identified in an Order(the"Implementation
Services").Customer shall,in a timely manner and at its own expense,cooperate and provide or make available to ZOLL access to the Customer's premises,systems,
telephone, terminals and facsimile machines and all relevant information,documentation and staff reasonably required by ZOLL to enable ZOLL to perform the
Implementation Services.Customer acknowledges that any time frames or dates for completion of the Implementation Services set out in an Order are estimates only and
the ability to meet them is influenced by a range of factors including,without limitation,response times and level of cooperation of Customer.Any obligations as to time
are therefore on a"reasonable efforts"basis only and ZOLL shall not be liable for failure to meet time frames or completion dates unless solely due to ZOLL's negligence.
5. Support Services.ZOLL shall provide the following Support Services for ASP Services without any additional Fees,except that ZOLL will have no obligation to
provide such Support Services if any Fees for ASP Services are past due.
5.1. Support.
5.1.1. Emergency Support.ZOLL shall provide telephone support to Customer for 24 hours a day,7 days a week,to address Errors that prevent Customer from using
Supported ASP Services for a purpose for which Customer has an immediate and material need."Supported ASP Services"means the ASP Services for which Customer
has paid the then-current Fees."Supported Environment"means a browser and other technical environment that supports the use of the ASP Services in accordance
with the Documentation."Error"means a reproducible defect in the Supported ASP Services when operated in accordance with the Documentation in a Supported
Environment that causes the Supported ASP Services not to operate substantially in accordance with such Documentation.
5.1.2. Technical Support.ZOLL shall provide telephone support to Customer during 6 a.m.to 6 p.m.Eastern Time,Monday to Friday,excluding ZOLL holidays
("Business Hours")to address all other Errors relating to any Supported ASP Services.Such telephone support will include(i)clarification of functions and features of
the Supported ASP Services;(ii)clarification of the Documentation;(iii)guidance in operation of the Supported ASP Services;(iv)assistance in identifying and verifying
the causes of suspected Errors in the Supported ASP Services;and(v)advice on bypassing identified Errors in the Supported ASP Services,if reasonably possible.
Responses to such reporting shall be provided at a minimum within twenty-four(24)hours during Business Hours.
5.13. Resolution.ZOLL shall use commercially reasonable efforts to provide a modification or workaround to Supported ASP Services that resolves an Error in all
material respects("Resolution").
5.1.4. Expenses.Support Services provided hereunder shall be provided from Chelmsford,Massachusetts or Broomfield,Colorado,as determined in ZOLL's sole
discretion.Should Customer request that ZOLL send personnel to Customer's location to resolve any Error in the Supported ASP Services,ZOLL may charge Customer
a fee of$2,500 for each day ZOLL personnel is at Customer's location.
5.1.5. Exceptions.ZOLL shall have no responsibility under this Agreement to fix any Errors arising out of or related to the following causes:(a)Customer's modification
or combination of the Access Software(in whole or in part),(b)use of the Supported ASP Services in an environment other than a Supported Environment;or(c)accident;
unusual physical,electrical or electromagnetic stress;neglect;misuse;failure or fluctuation of electric power,air conditioning or humidity control;failure of media not
furnished by ZOLL;excessive heating;fire and smoke damage;operation of the Supported ASP Services with other media and hardware,software or telecommunication
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interfaces;or causes other than ordinary use.Any corrections performed by ZOLL for such Errors shall be made,in ZOLL's reasonable discretion,at ZOLL's then-current
time and material charges.ZOLL will provide the Support Services only for the most current release and the one immediately preceding major release of any Access
Software.Notwithstanding anything to the contrary in the Agreement,(i)ZOLL may cease providing Support Services for any ASP Services upon at least six(6)months
advance notice to Customer of such cessation and(ii)Support Services do not cover Third Party Products or Services(defined below).
5.2. Conditions and Limitations.Customer shall provide ZOLL with access to Customer's personnel and its equipment.This access must include the ability to remotely
access the equipment on which the Supported ASP Services are operating and to obtain the same access to the equipment as those of Customer's employees having the
highest privilege or clearance level.ZOLL will inform Customer of the specifications of the remote access methods available and associated software needed,and
Customer will be responsible for the costs and use of said equipment.Fees for third party software and services are set by the owner of such software.
6. Warranties.
6.1. Implementation Services and Support Services.Subject to Customer's payment of the Fees,ZOLL warrants that any Implementation Services or Support Services
provided to Customer will be performed with due care in a professional and workmanlike manner.ZOLL shall,as its sole obligation and Customer's sole and exclusive
remedy for any breach of the warranty set forth in this Section 6.1 perform again the Implementation Services or Support Services that gave rise to the breach or,in the
case of Implementation Services,at ZOLL's option,refund the Fees for such Implementation Services paid by Customer for the Implementation Services which gave rise
to the breach.The availability of any remedy for a breach of the warranty set forth in this Section 6.1 is conditioned upon Customer notifying ZOLL in writing of such
breach within thirty(30)days following performance of the defective Implementation Services or Support Services,specifying the breach in reasonable detail.
6.2. ASP Services and Access Software.Subject to Customer's payment of the Fees,ZOLL represents and warrants with respect to any ASP Services that (i)ZOLL
has the right to license the Access Software and Documentation and make the ASP Services available to Customer pursuant to this Agreement and(ii)the ASP Services,
when used as permitted and in accordance with the Documentation,will materially conform to the Documentation.ZOLL does not warrant that Customer's use of the
ASP Services will be error free or uninterrupted.Customer will notify ZOLL in writing of any breach of this warranty with respect to any ASP Services prior to the
expiration or termination of the Order for such ASP Services.If ZOLL is unable to provide a correction or work-around pursuant to the terms governing the provision of
the ASP Services after using commercially reasonable efforts,ZOLL may terminate such Order upon written notice to Customer. Any such correction or work-around
shall not extend the term of such Order.This Section 6.2 sets forth Customer's exclusive remedy,and ZOLL's entire liability,for breach of the warranty for the ASP
Services contained herein.
63. Warranty Disclaimers.The warranties for the Software and Services are solely and expressly as set forth in Section 6.1 and Section 6.2 and are expressly qualified,
in their entirety,by this Section 6.3.EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1 AND SECTION 6.2,(A)THE SOFTWARE AND SERVICES ARE
PROVIDED STRICTLY"AS IS",WITHOUT ANY WARRANTIES OF ANY KIND,WHETHER EXPRESS,IMPLIED,STATUTORY,WRITTEN OR ORAL;(B)
ZOLL DOES NOT PROMISE THAT THE SOFTWARE OR SERVICES WILL BE SECURE,UNINTERRUPTED OR ERROR-FREE OR THAT THEY ARE
SUITABLE FOR THE PARTICULAR NEEDS OF CUSTOMER,REGISTERED USERS OR ANY THIRD PARTY;AND(C)ZOLL SPECIFICALLY DISCLAIMS
ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE,TITLE,AND NON INFRINGEMENT,AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE OR
USAGE IN TRADE.CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS
AGREEMENT, AND THAT NO WARRANTIES ARE MADE BY ANY OF ZOLL'S LICENSORS OR SUPPLIERS WITH RESPECT TO THIRD PARTY
PRODUCTS OR SERVICES.Customer acknowledges and agrees that,in entering into this Agreement,it has not relied upon the future availability of any new or
enhanced feature or functionality,or any new or enhanced product or service,including,without limitation,updates or upgrades to ZOLL's existing products and services.
ZOLL's performance obligations hereunder are limited to those expressly enumerated herein,and payment for ZOLL's performance obligations shall be due as described
herein.
7. Confidentiality.Neither party will use any trade secrets,information,or other material,tangible or intangible,that relates to the business or technology of the other
party and is marked or identified as confidential or is disclosed in circumstances that would lead a reasonable person to believe such information is confidential
("Confidential Information")for any purpose not expressly permitted by this Agreement,and will further disclose the Confidential Information of the party disclosing
it("Disclosing Party")only to the employees or contractors of the party receiving it("Receiving Party")who have a need to know such Confidential Information for
purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party's duty hereunder.The Receiving Party will protect the
Disclosing Party's Confidential Information from unauthorized use,access,or disclosure in the same manner as the Receiving Party protects its own confidential or
proprietary information of a similar nature and with no less than reasonable care. The ASP Services, Software and Documentation shall be ZOLL's Confidential
Information(including without limitation any routines,subroutines,directories,tools,programs,or any other technology included in the Software),notwithstanding any
failure to mark or identify it as such.The Receiving Party's obligations under this Section 7 with respect to any Confidential Information of the Disclosing Party will
terminate when and to the extent the Receiving Party can document that such information:(a)was already lawfully known to the Receiving Party at the time of disclosure
by the Disclosing Party;(b)is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions;(c)is,
or through no fault of the Receiving Party has become,generally available to the public;or(d)is independently developed by the Receiving Party without access to,or
use of,Confidential Information.In addition,the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that such disclosure is:(i)
necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding;or(ii)required by law or by the order of a court or
similar judicial or administrative body,provided that the Receiving Party notifies the Disclosing Party of such disclosure in writing prior to making such disclosure and
cooperates with the Disclosing Party,at the Disclosing Party's reasonable request and expense,in any lawful action to contest or limit the scope of such disclosure.
8. Indemnification.
8.1. By ZOLL.ZOLL will defend,at its own expense,any action against Customer or its or any of its agents,officers,director,or employees("Customer Parties")
brought by a third party alleging that any Software or Services infringe any U.S.patents or any copyrights or misappropriate any trade secrets of a third party,and ZOLL
will pay those costs and damages finally awarded against the Customer Parties in any such action that are specifically attributable to such claim or those costs and damages
agreed to in a monetary settlement of such action.The foregoing obligations are conditioned on Customer:(a)notifying ZOLL promptly in writing of such claim or action;
(b)giving ZOLL sole control of the defense thereof and any related settlement negotiations;and(c)cooperating with ZOLL and,at ZOLL's request and expense,assisting
in such defense.If any of the Software or Services become,or in ZOLL's opinion is likely to become,the subject of an infringement claim,ZOLL may,at its sole option
and expense,either:(i)procure for Customer the right to continue using such Software or Services;(ii)modify or replace such Software or Services with substantially
similar software or services so that such Software or Services becomes non-infringing;or(iii)terminate this Agreement,in whole or in part.Notwithstanding the foregoing,
ZOLL will have no obligation under this Section 8.1 or otherwise with respect to any infringement claim based upon:(1)use of any of the Software or Services not in
accordance with this Agreement;(2)any use of any Software or Services in combination with products equipment,software,services or data not supplied by ZOLL if
such infringement would have been avoided but for the combination with other products,equipment,software,services or data;(3)the failure of Customer to implement
any replacements,corrections or modifications made available by ZOLL for any Software or Services including,but not limited to,any use of any release of the Software
other than the most current release made commercially available by ZOLL;(4)any Customer Content;or(5)any modification of any Software or Services or use thereof
by any person other than ZOLL or its authorized agents or subcontractors.This Section 8 states ZOLL's entire liability and the exclusive remedy for any claims of
infringement.
8.2. By Customer.To the extent allowed by law,Customer shall indemnify,defend and hold ZOLL and its agents,officers,directors and employees(the"ZOLL
Parties")harmless from and against any and all liabilities,losses,expenses,damages and claims(collectively,"Claims")that arise out of the following except to the
extent the Claims are due to the gross negligence,intentional misconduct or breach of this Agreement by the ZOLL Parties:(i)information provided to any of the
ZOLL Parties by any of the Customer Parties;(ii)any of the Customer Parties'use or misuse of any of the Software or Services,including without limitation in
combination with Customer's software or services or third party software or services;(iii)any modifications made by any of the Customer Parties to any of the
Software or Services;(iv)infringement by any of the Customer
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Parties of any third party intellectual property right;(v)Taxes(other than taxes based on ZOLL's net income)and any related penalties and interest,arising from the
payment of the Fees or the delivery of the Software and Services to Customer;and(ix)any violation of laws or regulations,including without limitation applicable export
and import control laws and regulations in the use of any of the Software or Services,by any of the Customer Parties.
9. Limitation of Liability. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT WILL ZOLL OR ITS AFFILIATES,
SUBCONTRACTORS OR SUPPLIERS,OR ANY OF THEIR OFFICERS OR DIRECTORS,BE LIABLE,EVEN IF ADVISED OF THE POSSIBILITY,FOR:(i)
SPECIAL,INCIDENTAL,INDIRECT,PUNITIVE,EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND,HOWEVER CAUSED AND ON ANY
THEORY OF LIABILITY(INCLUDING,BUT NOT LIMITED TO,NEGLIGENCE),(ii)LOSS OF PROFIT,DATA,BUSINESS OR GOODWILL,COSTS OF
PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR(iii)ANY LOSSES,COSTS OR DAMAGES ASSOCIATED WITH CUSTOMER'S PRODUCTS
OR OTHER ELEMENTS INCORPORATED OR USED THEREWITH WHICH WERE NOT PROVIDED BY ZOLL OR WITH RESPECT TO ANY
MODIFICATIONS MADE TO THE SOFTWARE OR SERVICES OR MISUSE OF THE SOFTWARE OR SERVICES.ZOLL'S TOTAL CUMULATIVE LIABILITY
IN CONNECTION WITH THIS AGREEMENT,WHETHER IN CONTRACT OR TORT OR OTHERWISE,WILL NOT EXCEED THE AMOUNT PAID TO ZOLL
BY CUSTOMER FOR THE SOFTWARE AND SERVICES PROVIDED UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRECEDING THE
EVENTS GIVING RISE TO SUCH LIABILITY.Customer acknowledges that these limitations reflect the allocation of risk set forth in this Agreement and that ZOLL
would not enter into this Agreement without these limitations on its liability.Customer agrees that these limitations shall apply notwithstanding any failure of essential
purpose of any limited remedy.The remedies in this Agreement are Customer's sole and exclusive remedies.In addition,ZOLL disclaims all liability of any kind of
ZOLL's licensors and suppliers,for third party products or services,and for the actions or omissions of Customer's representatives.
10. Ownership.All right,title and interest, including but not limited to all existing or future copyrights,trademarks, service marks,trade secrets,patents,patent
applications,know how,moral rights,contract rights,and proprietary rights,and all registrations,applications,renewals,extensions,and combinations of the foregoing,
in and to the following are the exclusive property of ZOLL(or,as the case may be,its subsidiaries,licensors and suppliers):(i)ASP Services,Software,Documentation,
and all proprietary technology used by ZOLL to perform its obligations under this Agreement;(ii)all software,tools,routines,programs,designs,technology,ideas,
know-how,processes,techniques and inventions that ZOLL makes,develops,conceives or reduces to practice,whether alone or jointly with others,in the course of
performing the Services;(iii)the fully compiled version of any ofthe foregoing software programs that can be executed by a computer and used without further compilation
(the"Executable Code");(iv)the human readable version of any of the foregoing software programs that can be compiled into Executable Code(the"Source Code");
and(v)all enhancements,modifications,improvements and derivative works of each and any of the foregoing(the"ZOLL Property").If any derivative work is created
by Customer from the Software or Services,ZOLL shall own all right,title and interest in and to such derivative work.Any rights not expressly granted to Customer
hereunder are reserved by ZOLL(or its licensors and suppliers,as the case may be).
11. Term and Termination.
11.1.Term.The term of this Agreement("Term")begins on the effective date of the first Order incorporating this Agreement and continues until it is terminated.The
term of each Order begins on the effective date of such Order and continues until it expires or is terminated;provided,however,that such term(and any extension thereof)
shall automatically renew for an equivalent period at ZOLL's then current list pricing unless either party notifies the other party in writing of an intent to not renew such
term at least ninety(90)days prior to the expiration of such term."Implementation Date"for any ASP Services means the earlier of(a)the date upon which the activation
of such ASP Services is complete and such ASP Services are able to function as described in the warranty for such ASP Services,regardless of whether Customer uses
such ASP Services or(b)one hundred eighty(180)days following the shipment of the monitor/defibrillators in connection with which such ASP Services are to be used,
unless a delay in the activation of such ASP Services is caused by ZOLL,in which case the Implementation Date shall be postponed by a number of days equal to the
delay that ZOLL has caused;or(c)if Customer does not use Implementation Services to activate such ASP Services,the date of the Order for such ASP Services.
11.2.Termination.Either party may terminate this Agreement or any Order without cause on thirty(30)days'prior written notice to the other party.Either party may
terminate this Agreement or any Order if the other party materially defaults in the performance of any of its obligations hereunder and fails to cure such default within
twenty(20)days after written notice from the non-defaulting party.
11.3.Effects of Termination.Upon expiration or termination of this Agreement or any Order for any reason:(a)all amounts,if any,owed to ZOLL under this Agreement
or the Order that has expired or been terminated(the"Expired or Terminated Document")before such termination or expiration will become immediately due and
payable;(b)Customer's right to access the ASP Services,and all licensed rights granted,in the Expired or Terminated Document will immediately terminate and cease
to exist;and(c)Customer must(i)promptly discontinue all use of any ASP Services provided under the Expired or Terminated Document(ii)erase all copies of Access
Software from Customer's computers and the computers of its customers and return to ZOLL or destroy all copies of such Access Software and related Documentation
on tangible media in Customer's possession and(iii)return or destroy all copies of the Documentation in Customer's possession or control;(d)each party shall promptly
discontinue all use of the other party's Confidential Information disclosed in connection with the Expired or Terminated Document and return to the other party or,at the
other party's option,destroy,all copies of any such Confidential Information in tangible or electronic form.Additionally,if any Order for ASP Services is terminated by
ZOLL for a material default or by Customer without cause,then Customer immediately shall pay ZOLL an early termination fee equal to the amount of(x)the Fees for
such ASP Services otherwise payable during the initial term of such Order had such Order not been terminated during such term minus(y)the sum of such Fees paid by
Customer to ZOLL prior to the date of termination.Upon ZOLL's request,Customer will provide a written certification(in a form acceptable to ZOLL),certifying as to
Customer's compliance with its post-termination obligations set forth in this Section 11.3.
12. General Provisions.
12.1.Compliance with Laws.Customer shall comply with all applicable laws and regulations,and obtain required authorizations,concerning its use of the ASP Services,
including without limitation if applicable all export and import control laws and regulations.Customer will not use any ASP Services for any purpose in violation of any
applicable laws.ZOLL may suspend performance if Customer violated applicable laws or regulations.
12.2.Audits and Inspections.Upon written request from ZOLL,Customer shall furnish ZOLL with a certificate signed by an officer of Customer stating that the ASP
Services are being used strictly in accordance with the terms and conditions of this Agreement.During the Term and for a period of six months following the termination
or expiration of this Agreement,upon prior written notice,ZOLL will have the right,during normal business hours,to inspect,or have an independent audit firm inspect,
Customer's records relating to Customer's use of the ASP Services to ensure it is in compliance with the terms of this Agreement.The costs of the audit will be paid by
ZOLL,unless the audit reveals that Customer's underpayment of Fees exceeds five percent.Customer will promptly pay to ZOLL any amounts shown by any such audit
to be owing(which shall be calculated at ZOLL's standard,non-discounted rates)plus interest as provided in Section 2 above.
12.3.Assignments.Customer may not assign or transfer,by operation of law or otherwise(including in connection with a sale of substantially all assets or equity,merger
or other change in control transaction),any of its rights under this Agreement or any Order to any third party without ZOLL's prior written consent.Any attempted
assignment or transfer in violation of the foregoing will be null and void.ZOLL shall have the right to assign this Agreement or any Order to any affiliate,or to any
successor to its business or assets to which this Agreement relates,whether by merger,sale of assets,sale of stock,reorganization or otherwise,and to contract with any
third party to provide part of any of the Software and Services,and to delegate performance of this Agreement or any Order to any of its subsidiaries.
12.4.U.S.Government End Users.If Customer is a branch or agency of the United States Government,the following provision applies.The Software and Documentation
are composed of"commercial computer software"and"commercial computer software documentation"as such terms are used in 48 C.F.R.12.212(SEPT 1995)and are
(i)for acquisition by or on behalf of civilian agencies,consistent with the policy set forth in 48 C.F.R. 12.212;or(ii)for acquisition by or on behalf of units of the
Department of Defense,consistent with the policies set forth in 48 C.F.R.227.7202 1(JUN 1995)and 227.7202 3(JUN 1995).
12.5.Notices.All notices,consents,and approvals under this Agreement must be delivered in writing by electronic mail,courier,electronic facsimile,or certified or
registered mail(postage prepaid and return receipt requested)to the other party at the address set forth in the most recent Order(or to such other address or person as
from time to time provided by such party in accordance with this Section 12.5),and will be effective upon receipt or three(3)business days after being deposited in the
mail as required above,whichever occurs sooner.
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12.6.Governing Law and Venue;Waiver of Jury Trial.This Agreement will be governed by and interpreted in accordance with the laws of the State of Colorado
without reference to its choice of law rules.The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.Any action
or proceeding arising from or relating to this Agreement shall be brought in a federal or state court in the State of Colorado,and each party irrevocably submits to the
jurisdiction and venue of any such court in any such action or proceeding.EACH PARTY HEREBY KNOWINGLY,VOLUNTARILY,AND INTENTIONALLY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF OR IN CONNECTION WiTH THIS
AGREEMENT.
12.7.Remedies.Except as otherwise expressly provided in this Agreement,the parties'rights and remedies under this Agreement are cumulative.Customer acknowledges
that the Software and Services are built on valuable trade secrets and proprietary information of ZOLL,that any actual or threatened breach hereof will constitute
immediate,irreparable harm to ZOLL for which monetary damages would be an inadequate remedy,and that ZOLL will be entitled to injunctive relief for such breach
or threatened breach.Customer further agrees to waive and hereby waives any requirement for the security or the posting of any bond in connection with such remedies.
Such remedies shall not be considered to be the exclusive remedies for any such breach or threatened breach,but shall be in addition to all other remedies available at law
or equity to ZOLL.
12.8.Waivers.Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision
on any other occasion.
12.9.Severability.If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable,such provision will be changed and interpreted to
accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement will continue in full force
and effect.In any event,the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement,and this Agreement shall continue in
full force and effect,and be construed and enforced,as if such provision had not been included,or had been modified as above provided,as the case may be.
12.10.Independent Contractors.The parties are entering into,and will perform,this Agreement as independent contractors.Nothing in this Agreement will be construed
to make either party the agent of the other for any purpose whatsoever,to authorize either party to enter into any contractor assume any obligation on behalf of the other
or to establish a partnership,franchise or joint venture between the parties.
12.11.Third Parties.Customer is solely responsible for,and none of the fees set forth herein shall be deemed to cover,any amounts owed to third parties in connection
with the use of the ASP Services. If Customer engages a third-party provider("Third Party Provider")to deliver products or services,including without limitation
software,integrated into or receiving data from or accessing the ASP Services("Third Party Products or Services"),Customer represents,warrants and agrees that:(i)
ZOLL shall have no liability,and makes no representation,with respect to such Third Party Products or Services;and(ii)the Third Party Provider shall not be an agent
of ZOLL.To the extent the ASP Services or Software contains software owned by a third party for which ZOLL has a license agreement with a third party,the ASP
Services and Software and all rights granted hereunder are expressly limited by and subject to any license agreements ZOLL may have for such software.
12.12.Force Majeure.Neither party shall be liable for damages for any delay or failure of performance hereunder(other than payment obligation)arising out of causes
beyond such party's reasonable control and without such party's fault or negligence,including,but not limited to,failure of its suppliers to timely deliver acceptable parts
or services,any act or omission of Customer that interferes with or impedes ZOLL's performance hereunder,acts of God,acts of civil or military authority,fires,riots,
wars,embargoes,Internet disruptions,hacker attacks,or communications failures(a"Force Majeure Event").
12.13.Entire Agreement;Amendment; No Third Party Beneficiaries; Survival.This Agreement,which may be accepted by performance,constitutes the entire
agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements,understandings,and communication,whether written
or oral,except agreements at zollonline.com.Any other representation or agreement,whether written or oral,including but not limited to any purchase order issued by
Customer,shall be wholly inapplicable to the Software and Services and shall not be binding in any way on ZOLL.This Agreement may not be amended or changed or
any provision hereof waived except in writing signed by both parties.Any different or additional terms in any purchase order,confirmation or similar form issued or
otherwise provided by Customer but not signed by an authorized representative of ZOLL shall have no force or effect.There are no third party beneficiaries of this
Agreement.Those provisions of this Agreement that may be reasonably interpreted as surviving termination of this Agreement or the survival of which is necessary for
the interpretation or enforcement of this Agreement shall continue in full force and effect in accordance with their terms notwithstanding the termination hereof including,
but not limited to, Section 7 (Confidentiality), Section 8 (Indemnification), Section 9 (Limitation on Liability), Section 10 (Ownership), Section 11.3 (Effects of
Termination)and Section 12(General Provisions).This Agreement may be executed in counterparts,each of which will be considered an original,but all of which
together will constitute the same instrument.
13. HIPAA.This Section 13 applies if and to the extent that ZOLL creates,receives,maintains or transmits,directly or indirectly,any protected health information of
Customer("PHI")in the course of providing Software or Services to Customer.Capitalized terms used but not defined in this Section 13 have the meanings assigned to
them elsewhere in the Agreement or,if not defined therein,as defined in the Health Insurance Portability and Accountability Act of 1996(P.L. 104 191),42 U.S.C.
Section 1320d,et seq.,and regulations promulgated thereunder,as amended from time to time(such statute and regulations collectively referred to as"HIPAA").
"Covered Entity"as used herein means Customer."Business Associate"as used herein means ZOLL.The purpose of this Section 13 is to comply with 45 C.F.R.
§164.502(e)and§164.504(e),governing PHI and business associates under HIPAA
13.1.Applicability.This Section 13 applies if and to the extent that Business Associate creates,receives,maintains or transmits,directly or indirectly,any PHI in the
course of providing Software or Services to Covered Entity.
13.2.Compliance and Agents.Business Associate agrees that,to the extent it has access to PHI,Business Associate will fully comply with the requirements of this
Section 13 with respect to such PHI.Business Associate will ensure that every agent,including a subcontractor,of Business Associate to whom it provides PHI received
from,or created or received by Business Associate on behalf of,Covered Entity will comply with the same restrictions and conditions as set forth herein.
13.3.Use and Disclosure;Rights.Business Associate agrees that it shall not use or disclose PHI except as permitted under this Agreement,and in compliance with each
applicable requirement of 45 CFR Section 164.504(e).Business Associate may use or disclose the PHI received or created by it,(a)to perform its obligations under this
Agreement,(b)to perform functions,activities,or services for,or on behalf of,Covered Entity as specified in the Agreement,or(c)to provide data aggregation functions
to Covered Entity as permitted by HIPAA.Further,Business Associate may use the PHI received by it in its capacity as Business Associate,if necessary,to properly
manage and administer its business or to carry out its legal responsibilities.Business Associate may disclose the PHI received by it in its capacity as Business Associate
to properly manage and administer its business or to carry out its legal responsibilities if:(a)the disclosure is required by law,or(b)the Business Associate obtains
reasonable assurances from the person to whom the information is disclosed that it will be held confidentially and used or further disclosed only as required by law or for
the purpose for which it is disclosed to the person and the person notifies Business Associate of any instances of which it is aware that the confidentiality of the information
has been breached.Covered Entity shall not request Business Associate to use or disclose PHI in any manner that would not be permissible under HIPAA if done by
Covered Entity.
13.4.Safeguards.Business Associate agrees to develop,document,use,and keep current appropriate procedural,physical,and electronic safeguards,as required in 45
C.F.R.§§164.308-164.312,sufficient to prevent any use or disclosure of electronic PHI other than as permitted or required by this Agreement.
13.5.Minimum Necessary.Business Associate will limit any use,disclosure,or request for use or disclosure to the minimum amount necessary to accomplish the
intended purpose of the use,disclosure,or request.
13.6.Report of Improper Use or Disclosure.Business Associate shall report to Covered Entity any information of which it becomes aware concerning any use or
disclosure of PHI that is not permitted by this Agreement and any security incident of which it becomes aware.Business Associate will,following the discovery of a
breach of"unsecured protected health information,"as defined in 45 C.F.R.§164.402,notify Covered Entity of such breach within 15 days.The notice shall include
the identification of each individual whose unsecured protected health information has been,or is reasonably believed by Business Associate to have been,accessed,
5
v.3—2021-04-19
acquired,or disclosed during such breach.Business Associate agrees to mitigate,to the extent practicable,any harmful effect that is known to Business Associate of a
use or disclosure of PHI by Business Associate in violation of this Agreement.
13.7.Individual Access.In accordance with an individual's right to access to his or her own PHI in a designated record set under 45 CFR§164.524 and the individual's
right to copy or amend such records under 45 CFR§164.524 and§164.526,Business Associate shall make available all PHI in a designated record set to Covered Entity
to enable the Covered Entity to provide access to the individual to whom that information pertains or such individual's representative.
13.8.Amendment of and Access to PHI.Business Associate shall make available for amendment PHI in a designated record set and shall incorporate any amendments
to PHI in a designated record set in accordance with 45 CFR§164.526 and in accordance with any process mutually agreed to by the parties.
13.9.Accounting.Business Associate agrees to document such disclosures of PHI and information related to such disclosures as would be required for Covered Entity
to respond to an individual's request for an accounting of disclosures of their PHI in accordance with 45 CFR§164.528.Business Associate agrees to make available to
Covered Entity the information needed to enable Covered Entity to provide the individual with an accounting of disclosures as set forth in 45 CFR§164.528,
13.10.DHHS Access to Books,Records,and Other Information.Business Associate shall make available to the U.S.Department of Health and Human Services
("DHHS"),its internal practices,books,and records relating to the use and disclosure of PHI received from,or created or received by Business Associate on behalf of,
Covered Entity for purposes of determining the Covered Entity's compliance with HIPAA.
13.11.Individual Authorizations;Restrictions.Covered Entity will notify Business Associate of any limitation in its notice of privacy practices,any restriction to the
use or disclosure of PHI that Covered Entity has agreed to with an individual and of any changes in or revocation of an authorization or other permission by an individual,
to the extent that such limitation,restriction,change,or revocation may affect Business Associate's use or disclosure of PHI.
13.12.HITECH Act Compliance. Covered Entity and Business Associate agree to comply with the amendments to HIPAA included in the Health Information
Technology for Economic and Clinical Health Act(the"HITECH Act"),including all privacy and security regulations issued under the HITECH Act that apply to
Business Associate.
13.13.Breach;Termination;Mitigation.If Covered Entity knows of a pattern of activity or practice of Business Associate that constitutes a material breach or violation
of Business Associate's obligations under this Section 13.Covered Entity and Business Associate shall take any steps reasonably necessary to cure such breach and make
Business Associate comply,and,if such steps are unsuccessful,Covered Entity may terminate this Agreement.Business Associate shall take reasonable actions available
to it to mitigate any detrimental effects of such violation or failure to comply.
13.14.Return of PHI.Business Associate agrees that upon termination of this Agreement,and if feasible,Business Associate shall(a)return or destroy all PHI received
from Covered Entity,or created or received by Business Associate on behalf of Covered Entity,that Business Associate has continued to maintain in any form or manner
and retain no copies of such information or,(b)if such return or destruction is not feasible,immediately notify Covered Entity of the reasons return or destruction are not
feasible,and extend indefinitely the protection of this Section 13 to such PHI and limit further uses and disclosures to those purposes that make the return or destruction
of the PHI not feasible.
13.15.De-identified Health Information.Business Associate may de-identify any and all PHI and may create a"Limited Data Set"in accordance with 45 C.F.R.§
164.514(b)&(e).Covered Entity acknowledges and agrees that de-identified information is not PHI and that Business Associate may use such de-identified information
for any lawful purpose.Use or disclosure of a Limited Data Set must comply with 45 CFR 164.514(e).
13.16.Survival.All representations,covenants,and agreements in or under this Section 13 shall survive the execution,delivery,and performance of this Agreement.
13.17.Further Assurances;Conflicts.Each party shall in good faith execute,acknowledge or verify,and deliver any and all documents which may from time to time
be reasonably requested by the other party to carry out the purpose and intent of this Section 13.The terms and conditions of this Section 13 will override and control any
expressly conflicting term or condition of the Agreement.All non-conflicting terms and conditions of the Agreement shall remain in full force and effect.Any ambiguity
shall be resolved in a manner that will permit Covered Entity to comply with HIPAA.For the avoidance of doubt,a limitation on liability in the Agreement does not
conflict with this Section 13.
13.18.Applicable Law.The parties acknowledge and agree that HIPAA may be amended and additional guidance or regulations implementing HIPAA may be
issued after the date of the execution of this Agreement and may affect the parties' obligations hereunder.The parties agree to take such action as is necessary to
amend this Agreement from time in order as is necessary for Covered Entity to comply with HIPAA.
14 Non-appropriation.In the event sufficient funds shall not be appropriated for the payment of the charges required to be paid in subsequent municipal fiscal
years,and if Customer has no funds legally available from other sources,then Customer may terminate this Agreement at the end of the then current fiscal year,and
Cusotmer shall not be obligated to make any remaining payments provided for in this Agreement.
By signing below,the Customer acknowledges and agrees to those terms and conditions. The person signing below represents and warrants that she or he has the
authority to bind the Customer to those terms and conditions.
Customer
Signature:
Name:
Title:
Company:
Company Address:
Date:
6
v.3—2021-04-19
SECURITY AGREEMENT
Equipment+Basic
This Security Agreement,made and entered in this day of by and between ZOLL Medical
Corporation,located at 269 Mill Rd Chelmsford,MA 01824, (hereinafter"Secured Party")and
with headquarters located at and if a legal
person or registered,incorporated,formed or otherwise organized in or under the laws of the [state] of ,(hereinafter
"Debtor").
I CREATION OF SECURITY INTEREST
In consideration for the extension of credit,Debtor hereby grants a purchase money security interest in,and assigns to the
Secured Party,all of Debtors' right,title and interest in,to and under the Collateral described in the first paragraph of
Section II below as collateral to security for the payment and performance of all debts,liabilities and obligations of
Debtor of any kind whenever and however incurred to Secured Party,including the Obligations(as defined below).
II COLLATERAL
The term"Collateral"as used in this Agreement shall mean(a)the equipment described in Exhibit A and (b) all proceeds
thereof.
The term"Obligations"as used in this Agreement shall mean and include the indebtedness related to the purchase of the
equipment described in Exhibit A.
III DEBTOR'S OBLIGATIONS
A. Debtor warrants and covenants that the Collateral will be held for use,sale or lease in and for Debtor's business
and will be kept only at the principal place of business set forth herein(and Debtor's additional address(es)set
forth with its signature, if any);Debtor will notify Secured Party in writing fifteen(15)days prior to any of the
following:
(1) Change(s)or additions to location of any material or substantial portion of the Collateral,
(2) Change(s)in location of chief executive offices(if an unregistered entity),
(3) Change(s)in state of Incorporation(if a registered entity),
(4) Change(s)in state of residence(if an individual),
(5) Change(s)in name of Debtor's business.
B. Debtor covenants that it will notify Secured Party in writing 30 days prior of: its opening of any new places of
business,or the closing of any existing places of business,or the change of name or nature of the entity including
changes to state of incorporation or state of chief executive offices.
C. Debtor warrants and covenants that it has good and marketable title to,all its Collateral,and the same are free and clear
of all liens and encumbrances other than liens in favor of the Secured Party securing the Obligations.
IV DEFAULT
The following shall constitute a default by Debtor:
Non-payment: Failure to pay the principal or any installment of principal or of interest on the indebtedness or
any notes when due. In addition,Debtor shall be in default if bankruptcy or insolvency proceedings are instituted
by or against the Debtor or if Debtor makes any assignment for the benefit of creditors.
Breach: Misrepresentation or misstatement in connection with,noncompliance with or nonperformance of any of
Debtor's obligations or agreements under Sections III and VII shall constitute default under this Security
Agreement
Insolvency: The dissolution,termination of existence,\suspension of business,insolvency or business failure of
Debtor;or appointment of a receiver,trustee or custodian, for all or any property of Debtor,assignment for the
benefit of creditors by Debtor,or the commencement of any proceeding by or against Debtor under any provision
of the United States Bankruptcy Code,as amended,or under any other state,federal or other bankruptcy or
insolvency law,now or hereafter in effect.
V SECURED PARTY'S RIGHTS AND REMEDIES
A. Secured Party may assign this security agreement, and this agreement shall be binding upon and insure to the
benefit of Secured Party's successor and assigns, and:
(1) If Secured Party does assign this security agreement,the assignee shall be entitled, upon notifying the
Debtor,to performance of all Debtor's obligations and agreements under Sections III and VII,and
assignee shall be entitled to all of the rights and remedies of Secured Party under this Section V; and
(2) Debtor will not assert any claims or defenses he may have against Secured Party or against its assignee
except those granted in this security agreement.
B. Upon Debtor's default, Secured Party,shall have all rights set forth under the Uniform Commercial Code,
including, but not limited to Article 9,and may exercise his rights of enforcement under the Uniform Commercial
Code in force in the State where the Collateral is located or where the UCC Financing Statement is filed and in
conjunction with, in addition to or substitution for those rights, at Secured Party's discretion,may
(1) Declare all unpaid balances due and payable, notwithstanding otherwise stated maturities; and/or,
(2) Waive any default or remedy any default in any reasonable manner without any or all Accounts or other
collateral or proceeds, or to sell,transfer,compromise, waiving the default remedied and without waiving
any other prior or subsequent default.
C. The Secured Party may employ agents and attorneys-in-fact in connection herewith and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith.
VI RIGHTS AND REMEDIES OF DEBTOR
Debtor shall have all the rights and remedies before or after default provided in Article 9 of the Uniform Commercial
Code in force in the State of where the Collateral is located or where the UCC Financing Statement is filed. In addition,
the Debtor has all rights and remedies and immunities afforded to it as a sovereign, except any waived by virtue of the
inclusion of Debtor's obligations set forth in this contract. Debtor shall not assign or transfer its rights or obligations
hereunder without the prior written consent of Secured Party and any assignment or transfer made in violation of this
sentence shall be void.
VII ADDITIONAL AGREEMENTS AND AFFIRMATIONS
A. Debtor Agrees and Affirms
(1) That information supplied and statements made by Debtor in any financial or credit statement or
application for credit prior to this security agreement are true and correct and,
(2) Debtor warrants and covenants that it will keep and maintain its business as presently constituted and will
advise Secured Party immediately of any change in the name or nature or location thereof and of any fact
or occurrence which does,or with lapse of time could, impair Debtor's ability to perform hereunder.
(3) Debtor warrants that all locations of collateral and all corporate,partnership,doing business,trade and
individual names are listed below the signature line(hereon)are absolutely accurate and complete and
that it will give Secured Party at least thirty(30)days prior written notice of any change thereof,addition
thereto or deletion there from.
(4) That if Debtor is also buyer of the Collateral,there are no express warranties unless they appear in writing
signed by the seller and there are no implied warranties of merchantability or fitness for a particular
purpose in connection with the sale of the Collateral.
B. Mutual Agreements
(1) "Debtor"and"Secured Party"as used in this security agreement include the heirs,executors or
administrators,successors or assigns of those parties.
(2) The law governing this secured transaction shall be that of the State where the Collateral is located or
where the UCC Financing statement is filed.
(3) If more than one Debtor executes the security agreement,their obligations hereunder shall be joint and
several.
(4) This agreement does not waive Secured Party's rights under any other agreement that Debtor has signed
with the Secured Party.
(5) Debtor authorizes Secured Party to file a UCC Financing Statement describing the Collateral and appoints
Secured Party as Debtor's agent and grants Secured Party limited Power of Attorney to sign UCC forms
for the purpose of protecting Secured Party's interest.
C. Form of Debtor's Business
(1) Debtors represents and warrants as follows: Debtor's business is(circle one);
a.Registered Organization b.Unregistered Organization c. Individual
(a) If a. Registered Organization: State where Incorporation/Formed
(b) If b. Unregistered Organization: Location of Business(state) or if more than one place of business,
"chief executive office"
(c) If c. Individual: State or States of Residence(include all states)
-Registered Organizations include: Includes corporations, limited liability corporations and
registered limited partnerships.
-Unregistered Organizations include: Partnerships.
-Individuals Include: Sole Proprietorships
D. Further Assurances.
(1) Debtor agrees to execute any further documents, and to take any further actions,reasonably requested by
Secured Party to evidence or perfect the purchase money security interest granted herein or to effectuate
the rights granted to the Secured Party herein.
(2) Debtor represents and warrants that Debtor's exact legal name is set forth in the first paragraph of this
Security Agreement.
(3) This Agreement is governed by the laws of the Commonwealth of Massachusetts,with the courts therein
having exclusive jurisdiction over any disputes between the parties to this Agreement.
VIII INDEMNITY
To the extent permitted by law, Debtor hereby agrees to indemnify Secured Party and its affiliates,agents,and attorneys,
and to hold them harmless from and against any and all claims,debts,liabilities,demands, obligations,actions,causes of
action,penalties,costs and expenses(including reasonable attorneys' fees), of every kind,which they may sustain or incur
based upon or arising out of any enforcement of this Agreement or the Obligations;provided that this indemnity shall not
extend to damages proximately caused by any indemnitee's own or its representatives' gross negligence or willful
misconduct. Notwithstanding any provision in this Agreement to the contrary,the indemnity agreement set forth in this
Section shall survive any termination of this Agreement and shall for all purposes continue in full force and effect.
IX MISCELLANEOUS
The captions and section headings appearing herein are included solely for convenience of reference and are not intended
to affect the interpretation of any provision of this Security Agreement. This Security Agreement may be executed in any
number of counterparts,all of which taken together shall constitute one and the same instrument and any of the parties
hereto may execute this Agreement by signing any such counterpart. The terms of this Security Agreement may be
waived, altered or amended only by an instrument in writing duly executed by Debtor and the Secured Party. In the event
that any one or more of the provisions contained in this Security Agreement shall for any reason be held to be invalid,
illegal,or unenforceable in any respect,such invalidity, illegality,or unenforceability shall not affect any other provision
hereof,and this Security Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been
contained herein.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF,Debtor has executed this Security Agreement as of the date indicated above.
DEBTOR NAME
BY: BY:
(Print name) (Print name)
(Signature and Title) (Signature and Title)
SECURED PARTY NAME
BY:
(Gary Schaefer-Credit Manager)
ACCEPTED at Creditor City, State,this day of ,20