3 - Orange County Fire Authority
Contents
1. Software Capitalized terms used herein shall have the meanings defined herein or as used in the Rental Agreement Each separate Rental Agreement together with these incorporated Master Rental Terms and Conditions shall be referred to as a Rental Agreement herein Delivery CareFusion shall deliver each Pyxis Product to the ship to location stated in the Rental Agreement Risk of Loss From the time Customer receives delivery of a Pyxis Product until CareFusion accepts return delivery of the Pyxis Product Customer shall be responsible for a any loss of or damage to the Pyxis Product from any cause other than normal wear and tear Loss and b obtaining and maintaining throughout the term of the Rental Agreement All Risk Property Insurance in an amount equal to full replacement value covering the Pyxis Products Customer shall not be responsible for any portion of Loss caused by CareFusion s negligence or reckless or willful misconduct 3 Conditional Security Agreement Ifa Rental Agreement is determined not to constitute a true lease then the Rental Agreement shall be a security agreement with respect to the Pyxis Products and all accessions substitutions replacements therefore and proceeds thereof including insurance proceeds to secure all obligations pursuant to the Rental Agreement 4 Implementation Each Party shall perform the Party s respective implementation activities stated below Implementation2. 15 16 Master Support Terms and Conditions Service Care Plan with Preferred Support If Customer elects CareFusion s Service Care Plan with Preferred Support for the Pyxis Products an additional cost election under the Support Agreement Services shall include the Services set forth under Sections 7 and 9 in addition to the following a Guaranteed Response Time Instead of the response time guarantees provided above during each calendar month CareFusion guarantees that on site service representatives will arrive at the location of the Pyxis Product within four 4 hours from the time of dispatch by TSC on ninety five percent 95 of the Service calls placed that calendar month If due to the sole fault of CareFusion such guarantee is not met and if Customer provides written notice to CareFusion of such failure of this response time guaranty within thirty 30 days following the end of any calendar quarter then as Customer s sole and exclusive remedy CareFusion shall credit Customer five percent 5 of the ship to Monthly Support Fee for the Pyxis Product s subject to the response time guaranty Any credit will be applied in the month following the end of the next business quarter Notwithstanding anything to the contrary set forth herein or the Support Agreement CareFusion guarantees that dispatched on site field service representatives will arrive at the location of the Pyxis Control Center within forty eight 48 hours
3. Activities for each Pyxis Product pursuant to the Implementation Schedule attached and incorporated into the Rental Agreement Implementation Schedule a Infrastructure Customer shall provide adequate personnel clean commercial power necessary communication lines and sufficient clean space maintained at a temperature between 50 F and 80 F for all Implementation Activities Customer shall appoint a System Manager who shall be available during business hours and responsible to define policies procedures and to coordinate planning installation and set up b Installation CareFusion shall stage and install the Pyxis Product at the ship to location set forth in the Rental Agreement c Interfaces CareFusion shall provide CareFusion s side of each interface identified in the Rental Agreement Interface Customer shall promptly test each Interface to verify that the Interface functions properly Customer s sole remedy related to Interface functionality shall be for CareFusion to modify CareFusion s side of the Interface to provide full functionality d Documentation CareFusion shall provide Customer one copy of the current user manual for the Pyxis Product 5 Acceptance A Pyxis Product shall be deemed accepted by Customer Accepted when the Implementation Activities regarding the Pyxis Product are completed and the Pyxis Product functions in accordance with the material specifications of its user manual
4. any of CareFusion s obligations under the Rental Agreement b the rights of CareFusion s assignee shall not be subject to any claims counterclaims defenses or setoffs that Customer might possess against CareFusion c Customer shall execute documents that CareFusion reasonably requests to confirm Customer s obligations under the Rental Agreement and d Customer shall if requested make payments due under the Rental Agreement directly to the assignee Medication Handling CareFusion employees and agents CareFusion Personnel shall not physically handle Customer s medications Customer must be physically present and capable of observing CareFusion Personnel during any Implementation Activity or in any situation in which CareFusion Personnel have access to Customer s medications Discounts If CareFusion provides any discount credit rebate or other incentive regarding the Pyxis Products then it is a discount or other reduction in price pursuant to the Medicare Medicaid Anti Kickback Statute Each Party shall comply with the safe harbor regulations stated in 42 C F R 1001 952 h Notices Any notice from one Party to the other Party related to the Rental Agreement shall be in writing and delivered either by hand overnight courier or first class mail certified or registered return receipt requested postage prepaid to the receiving Party s Notice Address stated below A notice shall be deemed to be given when
5. delivered if by hand or by overnight courier and three days after it is mailed if by certified or registered mail Either Party may change its Notice Address upon delivery of notice to the other Party Confidentiality Except as required by law Customer shall not disclose to a third party the terms of or issue any public statement regarding the Rental Agreement Confidential Information without CareFusion s prior written approval This confidentiality obligation shall not apply if Customer can reasonably demonstrate that any such Confidential Information a was in the public domain b was received from a third party that lawfully possessed the Confidential Information c was otherwise known by Customer prior to the disclosure of Confidential Information or d was independently developed by Customer without reference to exposure to use of or disclosure of any Confidential Information This confidentiality obligation shall survive the termination of the Rental Agreement Prevailing Party Ifa Party prevails against the other Party regarding any claim arising from the Rental Agreement then the non prevailing Party shall reimburse the prevailing Party for costs expenses and attorneys fees reasonably incurred by the prevailing Party regarding such claim LU 20110603 Page 4 of 5 V 20110603 33 34 35 36 37 38 39 Severability If a court or other body of competent jurisdiction declares any term of the Rental
6. delivery of Pyxis Products or Customer s payment obligations or termination rights under a Support Agreement shall become effective only by a written amendment to the Master Support Terms and Conditions or applicable Support Agreement executed by both Parties Entire Agreement Amendment The Support Agreement incorporating these Master Support Terms and Conditions constitutes the entire agreement and understanding of the Parties regarding the subject matter of the Support Agreement and supersedes all prior written and oral agreements proposals and understandings between the Parties regarding the subject matter of the Support Agreement If any of Customer s Vendor Policies conflicts with any term or condition of a Support Agreement such Vendor Policies shall have no force or effect and the terms of the Support Agreement shall prevail No changes to a Support Agreement shall be made or shall be binding or effective upon either Party unless documented through a written amendment to the applicable Support Agreement executed by both Parties LU 20110603 Page 5 of 6 V 20110603 Master Support Terms and Conditions Each person signing this document represents that he she intends to and has the authority to bind his her respective Party to these Master Support Terms and Conditions CUSTOMER CAREFUSION SOLUTIONS LLC Notice Address Notice Address Address 3750 Torrey View Court City State ZIP San Diego CA 9
7. the Requesting Party the Support Agreement and any books documents and records necessary to certify the nature and extent of the costs paid by Customer to CareFusion pursuant to the Support Agreement Access If CareFusion pays a subcontractor more than 10 000 over a twelve 12 month period to perform the Support Agreement then CareFusion shall obligate the subcontractor to permit Access to the Requesting Party Applicable Terms of GPO Agreement Ifa Group Purchasing Organization agreement GPO Agreement is applicable to a Pyxis Product as of the date of the Support Agreement and if the GPO Agreement states that identified terms of the GPO Agreement are incorporated into the Support Agreement related to that Pyxis Product then the identified terms of the GPO Agreement shall be incorporated into the Support Agreement related to that Pyxis Product and shall supersede any conflicting term or condition in the Support Agreement applicable to the Pyxis Product Vendor Policies CareFusion and its employees shall comply with Customer s reasonable security rules policies and procedures provided in writing and agreed to in writing in advance by CareFusion Vendor Policies Customer shall notify CareFusion in writing of any substantive amendments to the Vendor Policies Notwithstanding the foregoing the Parties understand and agree that any alteration modification or creation of additional obligations related to the purchase and
8. to 1 printer montor UPS 466 D 42 2 259 96 90 O 6033780 123427 OCFA BIDP NM 3 0 BiolD Upg CNL Oct 06 60 OCFA 206309 Return Pyxis Product to CareFusion E MedStation 4000 2 Drawer Main with up to 2 Cubie B 3 M 6052510 12821262 B6FS29 N4MB2DRW2 N4 Mn2dr 2PremBio UPU Nov 08 60 381 91 B6FS29 206317 M4MB2DR7W2 Mini Drawers BiolD 468 D 42 2 262 96 91 Total Existing Equipment 1 ATR 3 855 885 Total Conversion Equipment 5 362 3 000 1 000 Product Price may represent monthly rental fee or purchase price as applicable to the original agreement 11051 Project Document 206309 206309 4000 Med 2011 12 16 160450 11051 Carefusion Use Only STD PPL 11 2011 0 12 16 2011 9 41 AM Page 2 of 2 Customer Initials CareFusion Master Rental Terms and Conditions Date Customer These Master Rental Terms and Conditions shall be incorporated into each Rental Agreement executed by CareFusion Solutions LLC CareFusion and the customer identified in the signature block below Customer each a Party and collectively the Parties Each Rental Agreement shall constitute a separate independent contract between the Parties Pyxis Products means collectively the Pyxis products identified in any single Rental Agreement including the software identified in the Rental Agreement integrated into any of the Pyxis Products or a software application delivered by CareFusion to Customer collectively
9. 11 Use of Pyxis Products Customer shall have possession of each Pyxis Product during the Rental Term for the Pyxis Product Customer shall use each Pyxis Product only i during a Rental Term for the Pyxis Product ii at the specific location in Customer s facility at which the Pyxis Product is implemented unless CareFusion provides prior written approval for a different location iii for Customer s internal business purposes iv in the manner described in the user manual for the Pyxis Product and v in accordance with applicable laws and regulations Customer shall not modify a Pyxis Product and shall not install or use any software not provided by CareFusion on a Pyxis Product without CareFusion s written consent 12 Grant of Limited Software License CareFusion grants Customer a limited non exclusive non transferable license to use the Software Customer i shall use integrated Software only as an integrated part of Pyxis Products ii shall not separate integrated Software from any Pyxis Product iii shall not translate disassemble decompile reverse engineer alter or modify the Software iv shall not make any copies of the Software or its documentation except one 1 copy for back up or archival purposes and v may use the Software only during the Rental Term of the Software or of the Pyxis Product into which the Software is integrated The Software is owned or licensed by CareFusion and is protected by copyright and other l
10. 2130 Legal Name DBA Federal Tax ID Sign Sign Print Print Title Title LU 20110603 Page 6 of 6 V 20110603 Implementation Timeline Cognos Viewer Page 1 of 2 A Implementation Timeline Ca re Fu S O n Project Name PE Fire Authority _MS4000 Implementation Customer Name Orange County Fire Authority Site ID 10046889 Rental Purchase Agreement Date 11 10 2011 Submit date Jan 5 2012 This Implementation Timeline applies to the Pyxis Products identified in the applicable Customer Order or if applicable Rental Agreement or Purchase Agreement the Agreement Capitalized terms in this Implementation Timeline shall have the same meaning as used in the Agreement CareFusion and Customer shall use commercially reasonable efforts to complete the implementation activities for each implementation stage described below on or before the applicable estimated end date If Customer fails to provide access or otherwise prevents CareFusion from conducting an implementation activity then CareFusion may re schedule the activity and Customer shall reimburse CareFusion for expenses incurred due to re scheduling Plan Prepare for equipment arrival and product implementation Task Customer responsibilities End Date Project planning and Designate a project manager and a system manager Acquire any third A Feb 7 2012 kickoff party interfaces as applicable Equipment Logistics Prepare staging area for test and live equipment
11. Agreement invalid or unenforceable then the remaining terms shall continue in full force and effect Non Waiver No right created by the Rental Agreement shall be deemed waived unless specifically and expressly waived in a writing signed by the Party possessing the right Compliance with Laws The Parties shall comply with all federal and state laws and regulations applicable to their respective performance of the Rental Agreement Access to Records For a period of four 4 years after CareFusion has performed the Rental Agreement CareFusion shall make available upon written request of the Secretary of the Department of Health and Human Services or upon request of the Comptroller General of the United States or any of their duly authorized representatives collectively the Requesting Party the Rental Agreement and any books documents and records necessary to certify the nature and extent of the costs paid by Customer to CareFusion pursuant to the Rental Agreement Access If CareFusion pays a subcontractor more than 10 000 over a twelve 12 month period to perform the Rental Agreement then CareFusion shall obligate the subcontractor to permit Access to the Requesting Party Applicable Terms of GPO Agreement Ifa Group Purchasing Organization agreement GPO Agreement is applicable to a Pyxis Product as of the date of the Rental Agreement and if the GPO Agreement states that identified terms of the GPO Agreement are incor
12. CONSENT CALENDAR AGENDA ITEM NO 3 EXECUTIVE COMMITTEE MEETING January 26 2012 TO Executive Committee Orange County Fire Authority FROM Craig Kinoshita Assistant Chief Operations Department SUBJECT Approval of Sole Source Preferred Vendor CareFusion Corporation for a Lease Agreement for Nine 9 Custom Automatic Medication narcotic Distribution Units Summary This item is submitted for the approval of a lease agreement for nine 9 custom automatic medication narcotic distribution units with CareFusion Corporation Recommended Action Authorize the Purchasing Manager to execute a new Lease Agreement for a period not to exceed 5 years with CareFusion in the amount of 51 720 per year Background What is a custom automatic medication narcotic distribution unit The current system utilized by the OCFA for this purpose is known as the Pyxis system This is a specially designed integrated system for the storage and distribution for medications designated as narcotics This system includes biometric technology which is considered the first line of security This scanning technology including the ability to track dispensing activities from a central location meets or exceeds current regulatory requirements for the storage and distribution of these medications How is this medication distribution system used by the OCFA Current DEA regulatory requirements mandate the proper storage distribution and daily accountability o
13. Fusion software application delivered to Customer collectively Software Capitalized terms used herein shall have the meanings defined herein or as used in the Support Agreement or any Rental Agreement or Purchase Agreement that identifies the Pyxis Products Each separate Support Agreement together with these incorporated Master Support Terms and Conditions shall be referred to as a Support Agreement herein 1 Support Term The Support Term for a Pyxis Product consists of any period of time that CareFusion agrees to support the Pyxis Product for Customer pursuant to the Support Agreement The period of the initial Support Term for each Pyxis Product shall be the number of months stated in the Support Agreement for that Pyxis Product The initial Support Term for each Pyxis Product shall commence on the Term Begin Date stated in the Implementation Schedule applicable to that Pyxis Product Implementation Schedule If there is no Implementation Schedule or if there is no Term Begin Date stated in the Implementation Schedule then the initial Support Term for a Pyxis Product shall commence on the first day of the month following the date that Pyxis Product is Accepted pursuant to the Rental Agreement or Purchase Agreement applicable to that Pyxis Product 2 Automatic Continuation of Support Term Either Party may terminate the Support Term for a Pyxis Product effective at the conclusion of the initial Support Term for th
14. Mar 12 2012 ce fer customer Complete CareFusion facilitated training Apr 16 2012 F Determine unit specific inventory Provide a clean and complete item System Design database Complete System Setup and Policy and Procedure documentation May 1 2012 System Validation P TEST Complete system validation Mar 12 2012 Project status Confirm network including wireless power and construction is completed i Apr 16 2012 assessment or on target for completion according to project plan Execute Implement project plan Task Customer responsibilities End Date Enter server database information Ensure any additional software System build installations have been completed Assign and load inventory into Apr 23 2012 equipment System validation TEPE PRODUCTION Complete system validation Mar 23 2012 User training Attend CareFusion provided Super User training Provide Super User led May 11 2012 training to end users Go live Work with CareFusion to bring products live May 14 2012 Go live support Provide a full time resource s for a minimum of two days after go live May 18 2012 Ensure billing information is accurate Term Begin Date Note If previously installed Pyxis Products are being upgraded or subject to new terms and conditions then the previously applicable terms and conditions including payment terms for those 06 01 2012 Pyxis Products shall remain in full force and effect until the Term Begin Date unless otherwise agreed
15. N4 Mn2dr 2PremBio UPU Oct 06 60 374 85 B1FS64 206309 _ M4MB2DR7W2 Mini Drawers BiolD 468 D 42 2 262 96 91 MedStation 4000 2 Drawer Main with up to 2 Cubie B 3 M _ 6033780 8000122854 B7FS45 N4MB2DRW2 N4 Mn2dr 2PremBio UPU Oct 06 60 374 85 B7FS45 206309 _ M4MB2DR7W2 Mini Drawers BiolD 468 D 42 2 262 96 91 MedStation 4000 2 Drawer Main with up to 2 Cubie B 3 M _ 6033780 8000122855 B5FS36 N4MB2DRW2 N4 Mn2dr 2PremBio UPU Oct 06 60 374 85 B5FS36 206309 _ M4MB2DR7W2 Mini Drawers BiolD 468 D 42 2 262 96 91 MedStation 4000 2 Drawer Main with up to 2 Cubie B 3 M_ 6033780 8000122856 B8FS63 N4MB2DRW2 N4 Mn2dr 2PremBio UPU Oct 06 60 374 85 B8FS63 206309 M4MB2DR7W2 Mini Drawers BiolD 468 D 42 2 262 96 91 MedStation 4000 2 Drawer Main with up to 2 Cubie B 3 M _ 6033780 8000122857 B6FS9 N4MB2DRW2 N4 Mn2dr 2PremBio UPU Oct 06 60 374 85 B6FS9 206309 _ M4MB2DR7W2 Mini Drawers BiolD 468 D 42 2 262 96 91 MedStation 4000 2 Drawer Main with up to 2 Cubie B 3 M__ 6033780 8000122858 B4FS22 N4MB2DRW2 N4 Mn2dr 2PremBio UPU Oct 06 60 374 85 B4FS22 206309 _ M4MB2DR7W2 Mini Drawers BiolD 468 D 42 2 262 96 91 MedStation 4000 4 Drawer Main with up to 2 Cubie B 3 M_ 6033780 8000122624 OCFA N4M3DOODRNV _ N4 SgiMn RAD 0Dr NV UPU Oct 06 60 324 57 OCFA 206309 Mini Drawers Permanent Bin Drawer BiolD 684 D 42 2 383 96 91 MedStation 4000 Non B 3 C_ 6033780 8000123969 OCFA N4FC Fac Console v4 x UPU Oct 06 60 158 57 OCFA 206309 Profile Console with up
16. O ANY CLAIM RELATED TO THE DATABASES INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS OR PROFITS EVEN IF LEXI COMP OR CAREFUSION RECEIVES NOTICE IN ADVANCE THAT THESE KINDS OF DAMAGES MIGHT RESULT LEXI COMP S AND CAREFUSION S AGGREGATE CUMULATIVE LIABILITY TO CUSTOMER PURSUANT TO ANY AND ALL CLAIMS RELATED TO THE DATABASES SHALL NOT EXCEED THE AGGREGATE NET LICENSE FEES TO BE PAID BY CUSTOMER TO CAREFUSION FOR THE DATABASES Governing Law The Rental Agreement shall be governed by the laws of the state of the Customer s initial Notice Address below without regard to that state s conflicts of law provisions Assignment Subject to Section 27 neither Party may assign any rights or obligations under the Rental Agreement without the other Party s prior written consent which shall not be unreasonably withheld provided that either Party may upon delivery of notice assign all of such Party s rights and obligations under the Rental Agreement without the consent of the other Party to a related affiliate or upon the transfer of all or substantially all of such Party s assets whether by merger sale or otherwise Assignment of Right to Receive Payments CareFusion may assign some or all of CareFusion s right to receive payments under the Rental Agreement without Customer s consent If CareFusion assigns CareFusion s right to receive payments under the Rental Agreement then a Customer shall not hold any assignee liable for
17. Party pursuant to Section 13 or Section 17 Default by CareFusion If prior to Acceptance of a Pyxis Product CareFusion fails to cure any breach of CareFusion s Implementation Activities regarding that Pyxis Product within thirty 30 days the Cure Period after delivery of notice from Customer identifying the conduct in breach then if Customer delivers notice to CareFusion the Cancellation Notice within ten 10 days after the expiration of the Cure Period Customer may elect to cancel Customer s obligation to rent that Pyxis Product If Customer timely elects to exercise the right of cancellation provided by this Section then i CareFusion shall have no further obligation to Customer regarding the Pyxis Product ii the Rental Term for the Pyxis Product shall be cancelled effective as of the Cancellation Notice and iii Customer shall promptly permit CareFusion to obtain possession of the Pyxis Product and any equipment or Software provided by CareFusion to Customer related to the Pyxis Product Default by Customer If i Customer fails to pay any payment required by the Rental Agreement or by any other agreement between the Parties within ten 10 days after CareFusion delivers notice to Customer stating that the payment is past due or ii Customer fails to cure any other breach of the Rental Agreement within thirty 30 days after delivery of notice from CareFusion then CareFusion may by notice to the extent permitted by a
18. Properly Performing Customer shall execute an electronic or paper Equipment Confirmation for the Pyxis Product on the date the Pyxis Product is Accepted 6 Initial Rental Term The Rental Term for a Pyxis Product consists of any period of time that CareFusion leases the Pyxis Product to Customer pursuant to the Rental Agreement The period of the initial Rental Term for each Pyxis Product shall be the number of months stated in the Rental Agreement for the Pyxis Product The initial Rental Term for a Pyxis Product shall commence on the Term Begin Date stated in the Implementation Schedule If there is no Implementation Schedule or if there is no Term Begin Date stated in the Implementation Schedule then the initial Rental Term for a Pyxis Product shall commence on the first day of the month following the date the Pyxis Product is Accepted 7 Automatic Continuation of Rental Term If at least sixty 60 days prior to the conclusion of the initial Rental Term for a Pyxis Product Customer delivers notice that Customer shall return the Pyxis Product at the conclusion of that initial Rental Term then that Rental Term shall expire at the end of the initial Rental Term If Customer does not deliver notice pursuant to the preceding sentence then the following terms shall apply at the end of the initial Rental Term i the Rental Term shall continue on a month to month term basis ii the Monthly Rental Fee shall be the month to month Rental Fee sta
19. ainst any claims asserted against the Indemnified Party for losses injuries or damages caused by the Indemnifying Party s conduct Exclusion of Consequential Damages NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INCIDENTAL CONSEQUENTIAL OR SPECIAL DAMAGES INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS OR PROFITS EVEN IF A PARTY RECEIVES NOTICE IN ADVANCE THAT THESE KINDS OF DAMAGES MIGHT RESULT This Section shall not limit a Party s right to indemnification from the other Party pursuant to Section 13 or Customer s obligation to make all payments due under the Support Agreement Default by CareFusion If CareFusion fails to cure any breach of CareFusion s obligation to provide Services regarding a Pyxis Product within thirty 30 days the Cure Period after delivery of notice from Customer identifying the conduct in breach then Customer may by notice elect to cancel the then remaining Support Term for that Pyxis Product Default by Customer If Customer fails to pay any payment required by the Support Agreement or by any other contract between the Parties within ten 10 days after CareFusion delivers notice to Customer that the payment is past due then CareFusion may by notice elect one or more of the following remedies to the extent permitted by applicable law and in addition to and without prejudice to any other remedy available at law or equity a suspend performance of the Support Agreement until Customer satisfies the o
20. ates Upgrades thereof to be installed through the Pyxis Security Module or by other means chosen by CareFusion collectively External Causes then CareFusion shall not be obligated to provide Services regarding the portion or part of the Pyxis Product or the functionality adversely affected by an External Cause LU 20110603 Page 2 of 6 V 20110603 Master Support Terms and Conditions b Service for External Causes If Customer requests that CareFusion attempt to correct a Pyxis Product problem attributable to an External Cause then i CareFusion shall promptly use commercially reasonable efforts to perform services and if necessary provide replacement parts to make the Pyxis Product Properly Performing ii CareFusion shall provide an invoice to Customer stating the charges for the services and parts used on a time and materials basis at CareFusion s then current rates and prices the Time and Materials Fees and iii within thirty 30 days after receiving an invoice stating Time and Materials Fees Customer shall pay the Time and Materials Fees c Consumables Services do not include the acquisition replacement or installation of consumables which include but are not limited to batteries paper and toner Notwithstanding the foregoing CareFusion shall provide and replace light bulbs for Pyxis Products as part of Services provided under the Support Agreement 9 Service Care Plan If Customer elects CareFusion s Servic
21. aws Except as provided in Section 26 Customer shall not sell assign sublicense transfer or disclose or permit access to the Software to a third party 13 Intellectual Property Indemnity a Notice and Cooperation Customer shall deliver notice to CareFusion promptly after Customer receives actual notice of any demand claim suit or proceeding against Customer that claims that a Pyxis Product used by Customer consistent with the Rental Agreement infringes any patent copyright or other proprietary right of a third party each an Infringement Claim Customer shall authorize CareFusion to have sole control of the defense and or settlement of each Infringement Claim provided that CareFusion shall obtain Customer s prior written consent not to be unreasonably withheld or delayed before agreeing to settle an Infringement Claim in a manner that adversely affects Customer s right to use a Pyxis Product Upon CareFusion s request Customer shall provide reasonable cooperation in the defense and or settlement of the Infringement Claim b Indemnity CareFusion at its expense shall i defend the Infringement Claim ii pay any damages and costs assessed against Customer or payable by Customer pursuant to a settlement agreement arising out of the Infringement Claim and iii reimburse Customer for reasonable costs and expenses incurred by Customer to provide the cooperation requested by CareFusion pursuant to Section 13 a This Sec
22. ax were 61 288 20 annually under the existing contract This new proposed agreement realizes a significant cost savings of 9 568 annually and 47 840 over the 5 year life of the contract The new annual contract amount 51 720 includes the lease of 3 000 per month and support costs of 1 000 per month plus sales tax This new system meets or exceeds OCFA s operating requirements and employs the latest technology in the area of biometrics and computer technology and has the capacity to evolve with technology enhancements as they become available for this operating system Impact to Cities County Not Applicable Fiscal Impact It is estimated that OCFA will save 2 400 in the current fiscal year by entering into this new agreement Consent Calendar Agenda Item No 3 Executive Committee Meeting January 26 2012 Page 3 Staff Contacts for Further Information Scott Brown Battalion Chief Emergency Medical Services Operations Department scottbrown ocfa org 714 573 6071 Debbie Casper Purchasing Manager Business Service Department debbiecasper ocfa org 714 573 6643 Attachments On file in the Office of the Clerk 1 CareFusion Rental Agreement and Support Agreement 2 CareFusion Master Rental Terms and Conditions CareFusion Rental Agreement and Support Agreement Rental Agreement Date November 30 2011 Customer Information Sold To Ship To Bill To Legal Name ORANGE COUNTY FIRE AUTHORITY Same a
23. ce with CareFusion s internal preventive maintenance schedule as modified from time to time for each Pyxis Product j Software Updates and Upgrades If CareFusion generally releases an Update Upgrade to the Software then CareFusion shall install the Update Upgrade deliver notice to Customer of the Update Upgrade and Customer shall promptly perform an audit of the proper communication of transactions between the Pyxis Product and Customer s information system An Update shall include bug fixes patches error corrections virus updates minor enhancements or modifications to existing features to maintain the security or operation of the Software An Upgrade shall include new applications functionality enhancements or other improvements to the Software provided however an Upgrade shall not include any hardware third party software or any software that CareFusion generally licenses as a separate product from the Software 8 Non Covered Items and Services The following are excluded from the Services provided by CareFusion under the Support Agreement a External Causes If the Pyxis Product is not Properly Performing in part because of abuse misuse vandalism modification alteration unauthorized adjustment unauthorized repair equipment not installed by CareFusion a computer virus introduced to the Pyxis Product by a source other than CareFusion or any other cause external to the Pyxis Product or Customer prevents Upd
24. condition of a Rental Agreement such Vendor Policies shall have no force or effect and the terms of the Rental Agreement shall prevail No changes to a Rental Agreement shall be made or shall be binding or effective upon either Party unless documented through a written amendment to the applicable Rental Agreement executed by both Parties Each person signing this document represents that he she intends to and has the authority to bind his her respective Party to these Master Rental Terms and Conditions CUSTOMER CAREFUSION SOLUTIONS LLC Notice Address Notice Address Address 3750 Torrey View Court City State ZIP San Diego CA 92130 Legal Name DBA Federal Tax ID Sign Sign Print Print Title Title LU 20110603 Page 5 of 5 V 20110603 CareFusion Master Support Terms and Conditions Date Customer These Master Support Terms and Conditions shall be incorporated into each Support Agreement executed by CareFusion Solutions LLC CareFusion and the customer identified in the signature block below Customer each a Party and collectively the Parties Each Support Agreement shall constitute a separate independent contract between the Parties Pyxis Products means collectively the Pyxis products identified in any single Support Agreement including the software identified in the Support Agreement integrated into any of the Pyxis Products or a Care
25. dar month of the Support Term each a Compensable Month and conditioned upon i Customer s providing written notice to CareFusion of such downtime within thirty 30 days following the end of any calendar quarter and ii CareFusion s verification of Customer s claim then as Customer s sole and exclusive remedy CareFusion shall credit Customer five percent 5 of the Total Monthly Support Fee s for all RSS Enabled Pyxis Product s subject to the response time guaranty Any credit will be applied in the month following the end of the next business quarter d Unit Relocations Upon thirty 30 days advance notice from Customer CareFusion shall relocate a Pyxis Product from the Customer facility in which the Pyxis Product was initially installed to another of Customer s facilities not more than one hundred 100 miles distant e Communications CareFusion shall provide the labor but not the hardware or software to install upgrades to Customer s network communication methods f Interfaces CareFusion shall provide scheduled interface changes upgrades and conversions to CareFusion s side of the standard ADT and Billing Interfaces for Pharmacy and Materials Management as well as Profile Interfaces for pharmacies where the Pyxis Profile system is in place Interface changes consist of adding features and or functionality to the standard interfaces LU 20110603 Page 3 of 6 V 20110603 10 11 12 13 14
26. e Care Plan for the Pyxis Products an additional cost election under the Support Agreement Services shall include the Basic Services set forth under Section 7 in addition to the following a Guaranteed Response Time Instead of the response time guaranty provided under Section 7 e above CareFusion guarantees that dispatched on site service representatives will arrive at the location of the Pyxis Product within the number of hours designated by the Parties under the Support Agreement either eight 8 or twenty four 24 hours calculated from the time of dispatch from TSC If due to the sole fault of CareFusion a service representative does not arrive within this guaranty period and if Customer provides written notice to CareFusion within ten 10 days following the end of the calendar month in which such dispatch occurred then as Customer s sole and exclusive remedy CareFusion shall credit Customer twenty percent 20 of the Monthly Support Fee for the Pyxis Product subject to the response time guaranty Notwithstanding anything to the contrary set forth herein or the Support Agreement CareFusion guarantees that dispatched on site field service representatives will arrive at the location of the Pyxis Control Center within forty eight 48 hours from the time of dispatch from TSC b Guaranteed Product Uptime A Pyxis Product that is Remote Support Services function enabled RSS Enabled Pyxis Product shall be Properly Perfor
27. e Extended Term If CareFusion cannot repair the Pyxis Product using commercially reasonable efforts during the Extended Term CareFusion shall have no further service or replacement obligation with respect to that Pyxis Product d Procedure to Obtain Services Customer shall promptly contact TSC if the Pyxis Product is not Properly Performing TSC will work with the Customer to perform initial troubleshooting If the issue problem cannot be repaired in a timely manner through telephone and remote support then CareFusion shall use commercially reasonable efforts to provide field service within twenty four 24 hours of Customer s initial call to TSC regarding the issue Customer shall provide CareFusion with entry and access to the Pyxis Product to provide regular service and repair Promptly following the completion of any Field Service Customer shall perform an audit of the proper communication of transactions between the Pyxis Product and Customer s information system e Guaranteed Response Time CareFusion guarantees that dispatched on site field service representatives will arrive at the location of the Pyxis Product within twenty four 24 hours from the time of dispatch from TSC If due to the sole fault of CareFusion a field service representative does not arrive within this guaranty period and if Customer provides written notice to CareFusion within ten 10 days following the end of the calendar month in which such dispatch occurr
28. e Pyxis Product by delivering notice of the Party s election at least sixty 60 days prior to the conclusion of the initial Support Term If neither Party delivers such notice then at the conclusion of the initial Support Term i the Support Term for the Pyxis Product shall continue on a month to month basis ii the Monthly Support Fee shall be the Monthly Support Fee stated for the Pyxis Product in the then current Pyxis Product price catalog and iii either Party may terminate this continued Support Term effective upon thirty 30 days prior notice 3 Payment of Monthly Support Fees Subject to the provisions of Section 5 herein Customer shall pay the Net Monthly Support Fee stated in the Support Agreement Monthly Support Fee for each Pyxis Product by check wire ACH or EFT on the first day of each month during the Support Term of the Pyxis Product If Customer does not pay an amount due to CareFusion pursuant to any provision of the Support Agreement on or before the due date then Customer shall pay a late charge at the rate of 1 5 of the unpaid amount or the highest rate allowed by the law whichever is lower per month prorated on a daily basis 4 Taxes Monthly Support Fees do not include any taxes Customer shall pay when due any sales taxes and related interest and penalties except those caused by CareFusion s failure to collect or remit such taxes arising from the transactions related to the Support Agreement If CareFus
29. ed then as Customer s sole and exclusive remedy CareFusion shall credit Customer five percent 5 of the Monthly Support Fee for the Pyxis Product subject to the response time guaranty Notwithstanding anything to the contrary set forth herein or the Support Agreement CareFusion guarantees that dispatched on site field service representatives will arrive at the location of the Pyxis Control Center within forty eight 48 hours from the time of dispatch from TSC f Interface Modification If CareFusion modifies an interface between a Pyxis Product and Customer s system network as part of Services then upon completion of the modification Customer shall promptly test the interface to verify that the interface functions properly Customer s sole remedy related to interface functionality shall be for CareFusion to modify CareFusion s side of the interface to provide full functionality g Replacement Parts CareFusion shall adjust and replace non consumable parts in the Pyxis Products as CareFusion deems necessary to keep the Pyxis Products Properly Performing CareFusion shall furnish maintenance and replacement parts on an exchange basis h Pyxis CUBIE Pockets CareFusion shall replace Pyxis CUBIE pockets that fail to work for any reason other than an External Cause i Preventative Maintenance At Customer s request CareFusion shall perform on site preventative maintenance of Pyxis Products in accordan
30. er Port 443 If Customer s system connectivity or personnel prevent CareFusion from performing Remote Support Services on a Pyxis Product related to a request for Services then i CareFusion shall not be obligated to satisfy any response time or Uptime guaranty applicable to that Pyxis Product and ii if CareFusion performs field services for the Pyxis Product Customer shall pay CareFusion s Time and Materials Fees for the field services Customer shall permit CareFusion to install and maintain Pyxis Security Module to allow the deployment of Updates Upgrades by RSS LU 20110603 Page 1 of 6 V 20110603 Master Support Terms and Conditions b Field Service CareFusion shall provide on site field service necessary to keep the Pyxis Products and CareFusion s side of any interfaces performing in accordance with the material specifications of the applicable user manuals Properly Performing If CareFusion determines that it cannot make the Pyxis Products Properly Performing through repair services then CareFusion shall replace portions of the Pyxis Product as CareFusion determines necessary to make the Pyxis Product Properly Performing c Field Service During Extended Term If the Support Term is renewed on a month to month basis or is extended beyond the initial Support Term Extended Term CareFusion shall use commercially reasonable efforts to keep the Pyxis Product Properly Performing through repair services only during th
31. f medications designated as narcotics These medications are part of the authorized pharmacology inventory assigned to paramedic units Presently OCFA meets this regulatory mandate by utilization of the automated medication distribution unit known as Pyxis These units are placed strategically in nine 9 fire stations in OCFA s service area These locations have been selected to ensure access by OCFA paramedic units as well as paramedic assessment units to provide for daily supply needs The Need to Replace the Existing System CareFusion was the original vendor selected as part of a formal Request for Proposal process conducted by the Orange County Fire Authority BID MD1263 The medication distribution storage units have functioned as intended CareFusion is currently the exclusive vendor of this automated Pyxis Specialty Station narcotic distribution system CareFusion has confirmed that their ability to continue to support this system may be an issue soon as technology advancements render our current system obsolete Consent Calendar Agenda Item No 3 Executive Committee Meeting January 26 2012 Page 2 As a result staff determined it was best to identify a replacement system at this time rather than extending service agreements on a potentially obsolete system Sole Source Justification The proposed agreement is a sole source agreement OCFA s purchasing ordinance authorizes sole source purchases of supplies services and equipme
32. from the time of dispatch from TSC b Guaranteed Product Uptime If collectively the RSS Enabled Pyxis Products are not Up for at least ninety seven percent 97 of the total number of hours during a Compensable Month as defined in Section 9 b above as such Uptime is determined as set forth therein and conditioned upon i Customer s providing written notice to CareFusion of such downtime within thirty 30 days following the end of any calendar quarter and ii CareFusion s verification of Customer s claim then as Customer s sole and exclusive remedy CareFusion shall credit Customer ten percent 10 of the Total Monthly Support Fee s for all RSS Enabled Pyxis Product s subject to the response time guaranty c Customized Performance Reporting CareFusion shall provide a monthly report of Customer s service call activity TSC cases and performance related to applicable response time or Uptime guarantees within fifteen 15 business days after each calendar month during the Support Term for the Pyxis Products d Direct Access to TSC Manager Representative CareFusion shall designate a manager from the TSC who will be available during CareFusion s business hours for Customer s direct access regarding overall quality of TSC support e Direct Access to Field Service Representative A local CareFusion Service Manager shall be designated and available to discuss Customer s level of satisfaction with the Services p
33. ion s prior written approval This confidentiality obligation shall not apply if Customer can reasonably demonstrate that any such Confidential Information a was in the public domain b was received from a third party that lawfully possessed the Confidential Information c was otherwise known by Customer prior to the disclosure of Confidential Information or d was independently developed by Customer without reference to exposure to use of or disclosure of any Confidential Information This confidentiality obligation shall survive the termination of the Support Agreement Severability If a court or other body of competent jurisdiction declares any term of the Support Agreement invalid or unenforceable then the remaining terms shall continue in full force and effect Non Waiver No right created by the Support Agreement shall be deemed waived unless specifically and expressly waived in a writing signed by the Party possessing the right Compliance with Laws The Parties shall comply with all federal and state laws and regulations applicable to their respective performance of the Support Agreement Access to Records For a period of four 4 years after CareFusion has performed the Support Agreement CareFusion shall make available upon written request of the Secretary of the Department of Health and Human Services or upon request of the Comptroller General of the United States or any of their duly authorized representatives collectively
34. ion pays any amount that Customer is obligated to pay under this Section then Customer shall promptly reimburse CareFusion 5 Indexed Monthly Support Fee Increases CareFusion may by notice increase the then current Monthly Support Fee for any Pyxis Product effective once every twelve 12 months by a percentage amount no greater than the sum of the then current Consumer Price Index for medical care as reported by the U S Department of Labor plus two percent 2 Monthly Support Fee increases shall be effective on the anniversary date of the commencement of the initial Support Term for the Pyxis Product 6 Training CareFusion shall provide introductory training through the station tutorial for select Pyxis Products A schedule of available training classes is located on the CareFusion Learning Portal accessible at http www carefusion com 7 Basic Services CareFusion shall provide the following basic support services collectively Services to Customer for each Pyxis Product from the time the Pyxis Product is Accepted through the Term Begin Date and during the Support Term for that Pyxis Product a Remote Support Services CareFusion shall provide remote support services Remote Support Services or RSS through CareFusion s Technical Support Center TSC 24 hours a day 365 days a year To permit Remote Support Services Customer shall provide continuously connected high speed Internet access via Secure Socket Lay
35. manship or material the Pyxis Product fails to perform in accordance with the Limited Warranty then as Customer s sole remedy in addition to the right to indemnification pursuant to Section 17 CareFusion shall promptly repair or replace at LU 20110603 Page 2 of 5 V 20110603 17 18 19 20 21 22 23 24 CareFusion s option the Pyxis Product or any part thereof EXCEPT FOR THE LIMITED WARRANTY CAREFUSION DISCLAIMS ANY AND ALL WARRANTIES EXPRESS OR IMPLIED INCLUDING ANY WARRANTY OF MERCHANTABILITY REGARDING THE PYXIS PRODUCTS Mutual Indemnification Each Party the Indemnifying Party shall indemnify and hold the other Party the Indemnified Party harmless from and shall defend the Indemnified Party against any claim asserted against the Indemnified Party for losses injuries or damages caused by the Indemnifying Party s conduct In addition CareFusion shall indemnify and defend Customer against any claim asserted against Customer by a third party based upon a Pyxis Product that has not been modified other than by or on behalf of CareFusion Exclusion of Consequential Damages NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INCIDENTAL CONSEQUENTIAL OR SPECIAL DAMAGES INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS OR PROFITS EVEN IF A PARTY RECEIVES NOTICE IN ADVANCE THAT THESE KINDS OF DAMAGES MIGHT RESULT This Section shall not limit a Party s right to indemnification from the other
36. ming Up at least ninety seven percent 97 of the total number of hours during each calendar month of the Support Term Uptime CareFusion will determine if an RSS Enabled Pyxis Product is not Up beginning on the date and time that CareFusion identifies such product as down i e not in service by Open Service Case status Open Service Cases exclude cases opened at Customer s request for issues other than device break fix issues An RSS Enabled Pyxis Product shall nevertheless be considered Up during i the performance of scheduled preventative maintenance ii Customer initiated delays iii any period that an RSS Enabled Pyxis Product is not Properly Performing because of an External Cause and iv any period that Customer or Customer s system does not permit CareFusion to provide Services related to the RSS Enabled Pyxis Product The Uptime calculation for the Pyxis Product shall be as follows Total of devices at a Site 24 Hrs per day days in the month Total of Service Case hours in the month for that site Total of devices at a Site 24 Hrs per day days in the month Uptime Service Case hours means the total number of hours required to resolve a reported issue for a Pyxis Product from the time a case is opened by the TSC until it is closed c Credit If collectively the RSS Enabled Pyxis Products are not Up for at least ninety seven percent 97 of the total number of hours during a calen
37. nt when the Purchasing Manager with the approval of the Fire Chief determines the requested services supplies and or equipment can feasibly be obtained from only one source After researching the matter staff has determined that the only system that provides both biometric scanning and centralized computer tracking is CareFusion s proprietary system The combination of biometrics and centralized tracking substantially enhances the security of the narcotic distribution system In addition the system is proprietary to CareFusion so no alternative suppliers exist for the system As a result this service and equipment can feasibly be obtained only from CareFusion As a result of negotiations CareFusion has agreed to replace OCFA s existing 9 Pyxis units with an upgrade to the Med Station 4000 2 medication distribution system that provides the biometric security features In addition the vendor has also agreed to lower the price of the lease and service plan from the prior contract on the Pyxis system The Med Station 4000 2 system meets or exceeds OCFA s operating requirements and also has the capacity to evolve with technology enhancements as they become available for this operating system Therefore a sole source preferred vendor authorization is necessary Staff recommends an extension of the existing lease agreement with the upgrade to Med Station 4000 2 for not to exceed five 5 years The annual lease and support costs including t
38. porated into the Rental Agreement related to that Pyxis Product then the identified terms of the GPO Agreement shall be incorporated into the Rental Agreement related to that Pyxis Product and shall supersede any conflicting term or condition in the Rental Agreement applicable to the Pyxis Product Vendor Policies CareFusion and its employees shall comply with Customer s reasonable security rules policies and procedures provided in writing and agreed to in advance by CareFusion Vendor Policies Customer shall notify CareFusion in writing of any substantive amendments to the Vendor Policies Notwithstanding the foregoing the Parties understand and agree that any alteration modification or creation of additional obligations related to the purchase and delivery of Pyxis Products or Customer s payment obligations or termination rights under a Rental Agreement shall become effective only by a written amendment to the Master Rental Terms and Conditions or applicable Rental Agreement executed by both Parties Entire Agreement Amendment The Rental Agreement incorporating these Master Rental Terms and Conditions constitutes the entire agreement and understanding of the Parties regarding the subject matter of the Rental Agreement and supersedes all prior written and oral agreements proposals and understandings between the Parties regarding the subject matter of the Rental Agreement If any of Customer s Vendor Policies conflicts with any term or
39. pplicable law and in addition to and without prejudice to any other remedy available at law or equity elect to 1 cancel one or more Rental Terms and require Customer to make the related Pyxis Products available for repossession by CareFusion at a reasonably convenient location and or ii recover liquidated damages from Customer in the amount of the present value calculated using a discount rate of six percent 6 per annum of the unpaid balance of all Monthly Rental Fees for all unexpired Rental Terms under the Rental Agreement Absence of Defenses to Payment Customer s obligation to pay Monthly Rental Fees is unconditional and non cancelable Customer shall not be entitled to any abatement or reduction of Monthly Rental Fees for any reason Customer shall make Monthly Rental payments when due regardless of any existing or future setoff or claim that might be asserted by Customer If CareFusion s assignee commences an action to collect any amount due pursuant to the Rental Agreement then Customer shall not assert any setoff or counterclaim against CareFusion s assignee Removal of Customer Property If Customer is required to relinquish possession of a Pyxis Product to CareFusion for any reason pursuant to the Rental Agreement then Customer shall without damaging the Pyxis Product promptly remove all medications data and Customer s property from the Pyxis Product Return of Pyxis Products At the conclusion of the Rental Term for any Pyxi
40. rademark trade secret or any other intellectual property right or source code related to the performance of the Interface Services Customer shall have no claim of any intellectual property right as referenced in the preceding sentence CareFusion shall retain the right to provide similar services to other customers and grants Customer a non exclusive license to use any intellectual property created by CareFusion that is integrated in the functioning of a Pyxis Product Will a Purchase Order be required for payment of the financial obligations Copies of this agreement will be sent to Ship To signer listed above proposed under this agreement please circle When complete additional copies will be sent to the following address Rental PO Name Yes Support PO St Address City St Zip ORANGE COUNTY FIRE AUTHORITY CAREFUSION SOLUTIONS LLC ATTN CONTRACTS 3750 TORREY VIEW CT SAN DIEGO CA 92130 888 876 428 Sign Sign Print Print Title Date Title Date This Agreement is not valid _until executed by both Customer and CareFusion Solutions LLC Version 6 1 4 Document 206309 206309 4000 Med 2011 12 16 160450 11051 11051 Sales Associate Terry Kuzma Gottron 619 249 9582 12 16 2011 9 41 AM Page 1 of 2 Supplement T amp C C CareFusion Customer Name ORANGE COUNTY FIRE AUTHORITY Customer Number 206309 Rental Agreement Date November 30 2011 GPO Standard Rental Agreement and Support Agreement P
41. rovided and consider any suggestions Customer may have for improving the quality of Services provided under the Support Agreement Customer Cancellation of On Site Service Customer may cancel scheduled on site Services by delivering notice to TSC five 5 business days prior to the scheduled start date Proper Notice If Customer cancels or otherwise prevents CareFusion from performing scheduled on site Services without providing Proper Notice then CareFusion may charge and Customer shall pay CareFusion the reasonable costs incurred by CareFusion because of the lack of Proper Notice Medication Handling CareFusion employees and agents CareFusion Personnel shall not physically handle Customer s medications Customer must be physically present and capable of observing CareFusion Personnel during any Service activity or in any situation in which CareFusion Personnel have access to Customer s medications If Customer fails to provide personnel to handle Customer s medications or to directly supervise CareFusion Personnel regarding Services where medications are present then CareFusion may re schedule the affected Service activity and upon invoice Customer shall reimburse CareFusion for expenses incurred related to re scheduling that activity Mutual Indemnification Each Party the Indemnifying Party shall indemnify and hold the other Party the Indemnified Party harmless from and shall defend the Indemnified Party ag
42. s circle one Sold To Ship To DBA ORANGE COUNTY FIRE AUTHORITY ORANGE COUNTY FIRE AUTHORITY St Address 1 FIRE AUTHORITY RD 1 FIRE AUTHORITY RD City St Zip Irvine CA 92602 Irvine CA 92602 Customer 206309 206309 The Rental Agreement and Support Agreement stated in this document are two separate and distinct contracts between CareFusion and Customer The two contracts are stated in this single document for administrative convenience only Rental Agreement CareFusion shall rent to Customer and Customer shall rent from CareFusion each Pyxis Product identified on the attached Pyxis Product Schedule on the Rental Terms stated herein This Rental Agreement incorporates the latest Master Rental Terms and Conditions executed by the Parties as of the full execution of this Rental Agreement CareFusion shall license not rent any software identified above or integrated into any Pyxis Product identified above Support Agreement CareFusion shall support and Customer shall accept support of each Pyxis Product identified on the attached Pyxis Product Schedule on the Support Terms stated herein This Support Agreement incorporates the latest Master Support Terms and Conditions executed by the Parties as of the full execution of this Support Agreement Intellectual Property Ownership CareFusion retains all exclusive rights in the Interface Services the technical side of the interface s and related materials if any including any patent copyright t
43. s Product Customer shall a accept ownership and acknowledge receipt of any data device that CareFusion removes from the Pyxis Product and tenders to Customer and then b promptly and properly crate and ship the Pyxis Product to CareFusion Lexi Comp Databases This Section applies only to Lexi Comp Licensed Databases Databases if any contained in a Pyxis Product and shall constitute the exclusive statement of terms and conditions between Customer CareFusion and Lexi Comp Inc or Lexi Comp Inc s parents subsidiaries affiliates or suppliers collectively Lexi Comp related to the Databases a Ownership License Grant The Databases are owned by Lexi Comp and are licensed not sold by CareFusion to Customer The Databases are provided to Customer subject to the rights and restrictions stated in the Grant of Limited Software License section herein applicable to integrated Software as modified by this Section Customer shall not copy any portion of the Databases for resale Customer shall not post any portion of the Databases on public bulletin boards web sites Internet domains or online chatrooms Customer may print out individual articles containing only insubstantial portions of the Databases for Customer s personal educational use if Customer includes a source reference to Lexi Comp and its copyright notice CareFusion shall not update the data sets contained in the Databases Customer may contact Lexi Comp to a
44. ted for the Pyxis Product in the then current Pyxis Product Price Catalog and iii either Party may terminate the continued Rental Term effective upon thirty 30 days prior notice LU 20110603 Page 1 of 5 V 20110603 8 Payment of Monthly Rental Fees Customer shall pay the Net Monthly Rental Fee stated in the Rental Agreement Monthly Rental Fee for each Pyxis Product by check wire ACH or EFT on the first day of each month during the Rental Term 9 Taxes Monthly Rental Fees do not include any taxes Customer shall pay when due any sales use rental property or other taxes or assessments of any kind other than any tax based solely on CareFusion s net income and related interest and penalties except those caused by CareFusion s failure to collect or remit such taxes arising from the transactions pursuant to the Rental Agreement If CareFusion pays an amount that Customer is obligated to pay under this Section then Customer shall promptly reimburse CareFusion 10 Cash Application Late Charges CareFusion shall apply all payments according to CareFusion s then current cash application procedures If Customer does not pay an amount due to CareFusion pursuant to any provision of the Rental Agreement on or before the due date then Customer shall pay a late charge on the unpaid amount at the rate of one and one half percent 1 5 per month prorated on a daily basis or the highest rate allowed by law whichever is lower
45. tion 13 states Customer s exclusive remedy and CareFusion s total liability to Customer regarding any Infringement Claim 14 Option to Modify If CareFusion determines that a Pyxis Product might infringe any United States patent copyright trade secret or other proprietary right of a third party then CareFusion may at its discretion replace the Pyxis Product with a substantially equivalent Pyxis Product or modify the Pyxis Product in a manner that does not adversely affect the performance or functionality of the Pyxis Product 15 Data Data means collectively data contained in the data files of a Pyxis Product or data that is created or stored through the use of a Pyxis Product Subject to the Business Associate Agreement in effect between the Parties as of the date of the Rental Agreement Customer grants CareFusion a perpetual royalty free license to use reasonable means to access Data and to use Data for any lawful purpose If Data collected by CareFusion contains Protected Health Information as defined by 45 C F R 160 103 then CareFusion shall prior to using or disclosing that Data de identify that Data pursuant to 45 C F R 164 514 and dissociate that Data from Customer 16 Limited Warranty For a period of ninety 90 days after the date a Pyxis Product is Accepted the Pyxis Product shall perform in accordance with the material specifications of its user manual the Limited Warranty If because of a defect in work
46. to in writing by the Parties If the Agreement is a Rental Agreement then the Rental Term for each Pyxis Product shall begin on the Term Begin Date If the Agreement is a Purchase Agreement then Customer shall pay the Net Purchase Price for each Pyxis Product within 30 days of the Term Begin Date If due to the sole fault of CareFusion a Pyxis Product is not Accepted until after the Term Begin Date then the Term Begin Date shall be the first day of the month following the date the Pyxis Product is Accepted Notwithstanding the foregoing CareFusion reserves the right to cancel the Agreement for any Pyxis Product that is not Accepted by the Term Begin Date unless such non Acceptance is due to the sole fault of CareFusion Each person signing this Implementation Timeline represents that he she intends to and has the authority to bind his her respective Party to this Implementation Timeline Implementation Timeline is valid if signed before 02 18 2012 Orange County Fire Authority CareFusion Solutions LLC https nawi01 daptiv com cognos8 cgi bin cognosisapi dll 1 5 2012 Implementation Timeline Cognos Viewer Page 2 of 2 Sign Sign Created by Maureen Russell 2 49 21 PM Jan 5 2012 https nawi01 daptiv com cognos8 cgi bin cognosisapi dll 1 5 2012
47. ttempt to procure updated data sets for the Databases However Pyxis MedStation 3000 3500 and 4000 system customers shall receive quarterly Lexi Comp updates to Databases at no additional Customer cost Customer shall be responsible for installing the quarterly Lexi Comp updates to Databases LU 20110603 Page 3 of 5 V 20110603 25 26 27 28 29 30 31 32 b Use of Professional Judgment Customer should consult a variety of information sources before making any treatment decision Customer should check the product information sheet accompanying each drug to verify conditions of use and should identify any changes in dosage schedule or contraindications Information in the Databases is not a substitute for individual patient assessment based upon Customer s examination of each patient and consideration of laboratory data and other factors unique to the patient Customer shall bear full responsibility for the appropriate use of the information contained in the Databases c Limited Warranty THE DATABASES ARE PROVIDED AS IS AND WITH ALL FAULTS CAREFUSION AND LEXI COMP DISCLAIM ANY AND ALL WARRANTIES RELATED TO THE DATABASES EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY NON INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE d Limitation of Liability NEITHER LEXI COMP NOR CAREFUSION SHALL BE LIABLE TO CUSTOMER FOR INCIDENTAL CONSEQUENTIAL OR SPECIAL DAMAGES RELATED T
48. utstanding obligation s and or b cancel one or more Support Terms LU 20110603 Page 4 of 6 V 20110603 17 18 19 20 21 22 23 24 25 26 27 Master Support Terms and Conditions Governing Law The Support Agreement shall be governed by the laws of the state identified in Customer s Notice Address below without regard to that state s conflict of laws provisions Prevailing Party If a Party prevails against the other Party regarding any claim arising from or related to the Support Agreement then the non prevailing Party shall reimburse the prevailing party for costs expenses and attorneys fees reasonably incurred by the prevailing party regarding such claim Notices Any notice from one Party to the other Party related to the Support Agreement shall be in writing and delivered either by hand overnight courier or first class mail certified or registered return receipt requested postage prepaid to the receiving Party s Notice Address stated below A notice shall be deemed to be given when delivered if by hand or by overnight courier and three 3 days after mailed if by certified or registered mail Either Party may change its Notice Address upon delivery of notice to the other Party Confidentiality Except as required by law Customer shall not disclose to a third party the terms of or issue any public statement regarding the Support Agreement Confidential Information without CareFus
49. yxis Product Schedule Conversion HSPA N A Support Level Basic Svc Support Term 60 mo Notes Discounts Product Support A GPO D Initial Installation Incentive A GPO 0 0 B QTY B QTY 5 0 Product discounts are applied to applicable products Support discounts are applied to all Support list prices e tee ateq Agreeme are oirered b are 0 0 0 ora epta Se omer tor a period exp go a 9 Type of Conversion HC Current Agreement New Rental Agreement Monthly New Term 60 Monthly Rental Fee Monthly Support gt T E E S o Current 8 r a E Unit Serial Location in Install 5S E 3 Proposed Type Contract Number Number Hospital Product Number Product Name Code Ea Product Price Support Location Ship To Product Number Product Name List Applied Disc Net List Net MedStation 4000 2 Drawer Main with up to 2 Cubie B 3 M__ 6033780 8000122851 B3FS21 N4MB2DRW2 N4 Mn2dr 2PremBio UPU Oct 06 60 374 85 B3FS21 206309 M4MB2DR7W2 Mini Drawers BiolD 468 D 42 2 262 96 91 MedStation 4000 2 Drawer Main with up to 2 Cubie B 3 M _ 6033780 8000122852 B2FS10 N4MB2DRW2 N4 Mn2dr 2PremBio UPU Oct 06 60 374 85 B2FS10 206309 M4MB2DR7W2 Mini Drawers BiolD 468 D 42 2 262 96 91 MedStation 4000 2 Drawer Main with up to 2 Cubie B 3 M _ 6033780 8000122853 B1FS64 N4MB2DRW2
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