- BMS Responsibilities. During the term of this Agreement, BMS will provide the services (“Agreement Services”) listed on the facing page under the heading “Schedule of Services.” The following shall be applicable to the Agreement Services:
- Modifications for Safety or Reliability. If BMS determines that a modification to the System (whether hardware or software) is necessary to address safety or reliability concerns identified by BMS, then BMS will install the modification in the System as soon as practical.
- Payments. Customer will pay all BMS invoices in line with agreed invoice terms. Service Agreement is billed annually in advance. BMS will suspend servicing the system for default in payment terms until past due billing receivables have been brought current.
- Tests. Customer will conduct such tests of the System and submit the results in such format at such times as BMS reasonably requests. Customer agrees to maintain Internet and/or telephone line connectivity to allow BMS to monitor remote diagnostic logs and allow for timely preventive maintenance visits.
- Conformity with Manuals. Customer will comply in all material respects with the manuals and instruction materials provided by BMS regarding this System, its use and its maintenance.
- Cooperation. Customer will cooperate with BMS in performing its duties including the scheduling of service calls and providing access to the System, an acceptable work environment for BMS personnel at the Installation Site, and adequate space for storage of spare parts, tools and the like. Customer bears the risk of loss for spare parts stored at the Installation Site.
- Installation Site. Customer will maintain the Installation Site in accordance with BMS’ recommendations and will not move, permit the movement of or tamper with the System without BMS’ prior knowledge and direct participation.
- No outside Services. Customer will not permit anyone other than BMS’ service representative to perform maintenance, to repair or to adjust the System, nor relocation of the system to another area or facility.
- No Unapproved Part. Customer will use only BMS approved parts in the System and only BMS approved disposables with the System.
- Customer Presence. For the safety of BMS’ personnel, Customer or one of its representatives will be present at the Installation Site at all times when an BMS employee is servicing the System.
( I ) No modifications to Hardware or Software existing at the time of purchase can be made by Customer without prior written consent of BMS. Any Service Visit, which in the judgment of BMS, has been caused by such unauthorized change, will be billable at the BMS standard Time & Material rates, Outside the hours of 8am-5pm Monday through Friday, Holidays and weekends will be billed at BMS After hour rate with a 4 hour minimum assessed.
- Exclusions. Further, this Agreement does not entitle Customer to, or obligate BMS to provide, any service or products not specifically identified in paragraph 1 hereof. Without limitation, the Agreement Services do not include: (a) any repairs or service attributable to Customer’s failure to comply with any of its obligations under Paragraph 2 or to accidents, casualty loss, other acts of God; (b) any disposable products, consumable supplies; or (c) services associated with relocation, installation (such as site preparation) or removal of the System. Services or products not included in the Agreement Services may be purchased from BMS on a case-by-case basis at BMS’ then current charges if such services are then available from BMS
- Charges and Invoicing. BMS will invoice Customer annually in advance, as agreed by Customer and BMS will invoice Customer for other services as incurred. BMS reserves the right to charge interest on any overdue unpaid balance at a rate of 1% per month. Prices are quoted exclusive of taxes. Customer will pay (or reimburse BMS for) all taxes. All payments are non-refundable.
- Term and Termination. If this is a one-year Agreement, this Agreement shall have a term of one year commencing on the Effective Date. If this is a multiple-year Agreement, this Agreement shall have an agreed term of years commencing on the Effective Date. Each twelve-month period following the Effective Date is referred to as an “Agreement Year.” This Agreement may be terminated by either party immediately upon written notice to the other if the other breaches one or more of its obligations hereunder.
- Limited Warranty, Force Majeure and Limitation of Liability. BMS warrants that the services provided hereunder will be performed in a workmanlike manner in accordance with reasonable commercial standards. BMS does not warrant that the operation of the System will be uninterrupted or error free. THE WARRANTY STATED IN THE FIRST LINE OF THIS SECTION AND REMEDIES SET FORTH HEREUNDER ARE EXCLUSIVE AND IN LIEU OF ALL OTHERS, ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY, RESPECTING THIS AGREEMENT, AND THE MAINTENANCE SERVICES AND PARTS PROVIDED HEREUNDER, BMS MAKES NO OTHER REPRESENTATIONS, WARRANTIES OR INDEMNIFICATION INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE RESPECTING THIS AGREEMENT OR THE SERVICES AND PRODUCTS PROVIDED HEREUNDER.
- Limitation of Liability. BMS will neither be deemed in default of any obligation hereunder nor will BMS be liable for any failure or delay in performance which results directly or indirectly from “Acts of God,” acts of civil or military authorities, civil disturbance, war, strikes, fire, theft or vandalism or other causes beyond BMS’ reasonable control. IN NO EVENT SHALL BMS BE LIABLE TO CUSTOMER FOR (A) ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, EVEN IF BMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (B) ANY DAMAGES RESULTING FROM LOSS OF USE, PATIENTS OR PROFITS, OR ANY DEFECT IN THE SYSTEM, WHETHER IN AGREEMENT OR TORT ACTION, INCLUDING NEGLIGENCE. IN NO EVENT SHALL BMS'S LIABILITY EXCEED THE TOTAL MAINTENANCE CHARGES PAID OR PAYABLE WITH RESPECT TO THE SYSTEM DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF THE DAMAGE. Customer acknowledges that the charges which apply to the Agreement Services are based in part upon the limited warranty and limitation of liabilities and remedies set forth in this Agreement.
- Right to Subcontract. BMS reserves the right to subcontract the services to be provided hereunder to qualified third parties. In such event, the rights and obligations of BMS and Customer will not be diminished.
- Refurbished Parts. BMS reserves the right to use refurbished parts in performing its obligations hereunder provided such parts meet all specifications and are covered by the same warranty as new parts. All parts removed from the System for replacement become the property of BMS.
- Non-Assignment. Customer may not assign any of its obligations, rights or remedies under this Agreement and any attempted such assignment shall be null and void.
- Non-Waiver. The failure or delay of either party to exercise any right or remedy provided for herein shall not be deemed a waiver of that right or remedy or of any other rights or remedies available hereunder.
- Entire Agreement. This Agreement, including all the schedules hereto, contains the entire understanding of Customer and BMS with respect to the services provided hereunder and supersedes all prior oral or written communications with respect to the subject matter hereof. This Agreement and the rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts.
Severability. If any provision or portion of this Agreement is held to be unenforceable or invalid, the remaining provisions and portions thereof shall nevertheless be given full force and effect, and the parties agree to negotiate, in good faith, a substitute valid provision which most nearly affects the parties’ intent in entering this Agreement. Without limiting the foregoing, it is expressly understood and agreed that each and every provision of this Agreement which provides for a limitation of liability, disclaimer of warranty or exclusion of damages is intended by the parties to be survivable and independent of any other provisions. Further, in the event that any remedy hereunder is determined to have failed of its essential purpose, all limitations of liability and exclusions of damages shall remain in effect.
- GLOBAL ANTI-CORRUPTION POLICY. BMS strictly prohibits engaging in or tolerating bribery or any other form of corruption. BMS has adopted a policy which prohibits bribery in any form and mandates strict compliance with applicable anti-bribery laws and regulations in all countries and jurisdictions in which it conducts business. BMS expects that all employees, business partners, distributors, agents and/or consultants to comply with all applicable laws in connection with and/or carrying out BMS’ business and in doing so :A) comply at all times with the anti-bribery laws and applicable requirements of the BMS’ policy in connection with BMS’ business; and B) require that all sub-partners, such as a sub-distributor, sub-agent and/or sub-consultant or other representative or similar third-party are made aware of and comply with BMS’ policy. Customer provides its confirmation upon entering into this Agreement that it, at all times, prohibits bribery in any form and mandates strict compliance with applicable anti-bribery laws and regulations in all countries and jurisdictions in which it conducts business and in doing so that it strictly prohibits engaging in or knowingly tolerating bribery or any other form of corruption. shall not induce or otherwise bribe, including but not limited to the provision of facilitation payments, any third party in its conduct of business on behalf of BMS