Order Form for One-Time Direct-to-Destruction Event
Order Form. Inmar will provide the Services to Client that are described on the Order Form ("Order Form") to which these terms and conditions (the "Terms and Conditions") are attached (the "Services") for Client’s location(s), a list of which Client provided in the applicable Order Form or in writing to Inmar, email to suffice ("Location(s)",) that shall be considered to be attached hereto and incorporated herein by reference.
Fees. As compensation for the Services, Client shall pay to Inmar those fees as set forth on Schedule 1 of the applicable Order Form (the "Fees").
Compliance with Laws. Each party to this Order Form agrees to comply with and will perform its obligations pursuant to all applicable laws and regulations. Inmar will act in accordance with the handling instructions provided by Client concerning the disposition of the Direct to Destruction Product, except that if such handling instructions would cause any noncompliance with any applicable federal, state, or local laws or regulations, Inmar may, in its sole discretion, select a processing or disposal method that Inmar reasonably believes to be compliant with such laws and regulations.
Individually Identifiable Patient Information. Client is responsible for removing any individually identifiable patient information from Direct to Destruction Product.
Confidentiality. Both parties recognize the confidential nature of the information shared as a result of and pursuant to this Order Form. Each party agrees to maintain the confidentiality of all information provided by the other party, including, but not limited to, the terms and conditions hereof, during the term of this Order Form and for a period of four (4) years thereafter. Each party further agrees to not disclose the confidential information of the other party to any third party, except that a receiving party may disclose the confidential information or portions thereof to those of its directors, officers, employees, and representatives who need to know such confidential information for the purpose of the relationship between the parties and agree to be bound to terms similar to those stated herein relating to confidential information. A receiving party may disclose confidential information that such party is required to disclose by a court of competent jurisdiction or by law, provided that the disclosing party is given prior written notice of such disclosure (to the extent legally permitted).
Intellectual Property. All information regarding the Manufacturer provided by or on behalf of Manufacturer (collectively, "Product Materials"), and all intellectual property and proprietary rights in, to and under the Products are and shall remain Manufacturer’s sole and exclusive property, notwithstanding any sale of a physical unit. Each party shall own and continue to own all rights it may have in intellectual property developed, invented, gathered, or created by it before or during the Term of this Agreement. Except for the license grant set forth in the immediately succeeding paragraph, this Agreement shall not be construed to grant to either party any right, title, or interest in any intellectual property rights owned by the other party. Without limiting the foregoing, all intellectual property rights, title, and interest in the methodology, technology, and know-how that Inmar uses to perform the Services under this Agreement, including all enhancements and improvements thereto, and including the Applications, Software, and Documentation, are and shall remain the exclusive property of Inmar.
Disclaimer of Warranties. Except as otherwise EXPRESSLY provided in this Order Form, Inmar disclaims all warranties, express or implied, regarding the services provided by it, including, but not limited to, any warranty against infringement, that such services will be uninterrupted or error free and any warranty arising from a course of dealing, usage, or trade practice. Except as otherwise provided in this Order Form, the services provided by Inmar are provided "as is" without warranty of any kind. IN NO EVENT WILL INMAR BE LIABLE TO CLIENT FOR ANY SPECIAL, EXEMPLARY, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOSSES, OR COSTS (INCLUDING LEGAL FEES AND EXPENSES), OR LOST TIME, SAVINGS, PROPERTY, PROFITS, OR GOODWILL, WHICH MAY ARISE IN CONNECTION WITH THE SERVICES PROVIDED BY INMAR, REGARDLESS OF THE FORM OF CLAIM OR ACTION, EVEN IF INMAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, OR COSTS.
Limitation. Unless otherwise limited herein, the liability of Inmar to Client arising under or related to this Order Form or otherwise, regardless of the form of claim or action, will not exceed the amounts actually paid by Client and received by Inmar for Services under this Order Form in the twelve (12) month period preceding such claim. No action arising out of this Order Form may be brought by either party more than one (1) year after the date on which the cause of action has accrued.
Indemnification. Except as limited above, each party (the "Indemnitor") agrees to defend, indemnify, and hold harmless the other party (the "Indemnitee") and its officers, directors, and employees from and against any and all damages, losses, fines, costs and expenses (including reasonable attorneys’ fees), judgments, and liabilities (collectively, "Expenses") that (i) are made against or incurred by the Indemnitee in connection with a third party claim and (ii) arise out of or relate to acts or omissions of the Indemnitor in the performance of this Order Form that constitute gross negligence or willful misconduct on the part of the Indemnitor, so long as such Expenses are not primarily caused by the Indemnitee, its officers, directors, or employees. The indemnification set forth in this Section is conditioned upon (a) the Indemnitee providing the Indemnitor prompt written notice of any claim or cause of action upon which the Indemnitee intends to base a claim of indemnification hereunder, (b) the Indemnitee providing reasonable assistance and cooperation to enable the Indemnitor to defend the action or claim hereunder, and (c) the Indemnitee refraining from making prejudicial statements associated with such claim without the prior written consent of the Indemnitor.
Default.
Any material breach of the terms of this Agreement that is not cured within thirty (30) days of receipt of written notice from the non-breaching party will constitute default of the Agreement by the breaching party.
Failure of Client to make any payment due to Inmar shall constitute default by Client if such nonpayment continues for a period of ten (10) days after receipt of written notice from Inmar.
Insolvency, receivership, bankruptcy, or any similar proceeding initiated against either party will constitute default by that party.
Reduction of Statute of Limitation. No action arising out of this Agreement may be brought by either party more than one (1) year after the date on which the cause of action has accrued.
Force Majeure. Inmar shall not be liable to Client for any delay or failure of performance of this Order Form if such delay or failure is caused by weather conditions, earthquake, fire, flood, externally caused transmission interferences, satellite failure, war, riot, acts of terrorism, civil disturbance, or any cause beyond the control of Inmar (each an "Event of Force Majeure"). If a delay or failure of performance by Inmar is caused by an Event of Force Majeure, Inmar shall notify Client and shall be released without any liability from its performance under this Order Form to the extent and for the period of time that such performance is prevented by the Event of Force Majeure.
Recalls. In the event a recall, suspension or withdrawal of a Product is required by any regulatory agency, or if such action is deemed advisable by Inmar or the manufacturer (each a "Recall"), such Recall shall be implemented and administered by or at the direction of Inmar or the manufacturer, and in accordance with Manufacturer’s policies and procedures. In the absence of an order from a regulatory agency, if the parties are unable to agree upon a Recall, Inmar or the manufacturer shall make the final decision on all matters related to such Recall (including matters relating to the method of implementation). Subject to the foregoing, the parties agree to cooperate to effectuate such Recall. Except to the extent any Recall is attributable to Client’s breach of its obligations under this Agreement, the costs and expenses in connection with such Recall shall be paid by manufacturer. This Section 11 shall survive termination of this Agreement.
Miscellaneous. This Order Form shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to the conflict of law rules of such state. The terms and conditions of this Order Form may be waived or amended only by a written instrument executed by an authorized representative of each of the parties. Failure by either party to enforce at any time any of the provisions of this Order Form shall not constitute a waiver of such provision and not in any way affect the validity of this Order Form or any part thereof or the right of the other party thereafter to enforce the provisions hereof. The provisions of this Order Form are severable, and any provision of this Order Form that is determined to be void or unenforceable by a court of competent jurisdiction shall not affect the enforceability of the remaining provisions herein. This Order Form will not be construed as constituting either party as partner, joint venturer or fiduciary of the other or to create any other form of legal association that would impose liability on one party for the act or failure to act of the other or as providing either party with the right, power or authority (express or implied) to create any duty or obligation of the other. This Order Form, together with all schedules and exhibits attached hereto, sets forth the entire understanding between Inmar and Client with respect to the subject matter hereof and supersedes all prior agreements, written or oral, between the parties with respect to the subject matter hereof. This Order Form will be binding upon, and will inure to the benefit of, the parties hereto and their respective successors and permitted assigns. All notices herein provided for shall be considered as having been given upon being placed in the U.S. mail, certified postage prepaid or via nationally recognized overnight courier to the address for each party as provided in this Order Form or to such other address as may be given to the other party in writing, with a copy of such notice sent to the attention of the recipient’s legal department. The representations and warranties under this Order Form, which, by their terms and context show the parties intended for them to survive the termination of this Order Form for any reason, including but not limited to, provisions governing confidentiality, ownership, indemnification and liability, shall survive any expiration or termination of this Order Form. This Order Form may be signed in counterparts and delivered by facsimile or by scanned PDF image delivered via electronic mail.
