Terms and Conditions
This agreement (the "Agreement"), is between Simulab Corporation, a Washington corporation ("Simulab"), and the Customer identified on the Order Confirmation ("Customer"). Your possession of the System constitutes your acceptance to these terms and conditions. 1. TraumaMan® Systems. Subject to the terms and conditions of this Agreement, Simulab agrees to license to Customer, and Customer agrees to hire from Simulab the TraumaMan® training system (the "System(s)"), which is comprised of the components set forth in the product documentation, the product documentation and the demonstration CD- Rom. The System(s) are licensed for use in connection with American College of Surgeons ("ATLS") training courses ("Courses") hosted by the Customer. The precise number of Systems rented and the location of the applicable Course will be specified in Order Confirmations entered into under this Agreement and must be consistent with ATLS guidelines. 2. Rent; Payment. Customer agrees to pay the charges (including shipping Rent; Payment. Customer agrees to pay the charges (including shipping charges) for each System indicated on the Order Confirmation. Charges are based upon the number of students participating in the Course and the Body Forms required as indicated on the Order Confirmation indicated on this agreement. Customer will be invoiced upon Simulab's shipment of the course materials. All invoices are due within 30 days of the date of invoice. A finance charge of the lesser of 1.5% per month or the highest amount allowed by law will be assessed on all amounts past due. If more students participate in a Course than the number indicated on the Order Confirmation, Customer will, within 15 days of the Course submit to Simulab a report with the revised number of students together with the additional charges for those students. 3. Training; Delivery; Return: The System(s) will be delivered directly to the shipping location indicated on the Order Confirmation (the "Site") within a reasonable time prior to the Course date indicated on the Order Confirmation, provided however that the Order Confirmation is received by Simulab at least 10 days prior to the Course (unless otherwise agreed by Simulab). Promptly upon receipt of the System(s), Customer shall inspect it/them to insure all components have arrived in working condition and will immediately notify Simulab of any nonconformity of the System(s) with the product documentation. In such case, are placement System(s) will be shipped on a best effort, next business day basis. Upon conclusion of the Course, Customer must repack & ship each System (including all components that were originally received, even those that appear to be consumed through the simulation process) according to the instructions contained in the product documentation. Customer will arrange for pick-up of the System(s) at the shipping address within 1 day of the end of the Course. For every day beyond this timeframe that the System(s) are not available for pick-up as set forth herein, Simulab will charge Customer a continued license charge of $500.00 per day. 4. Minimum Commitments: In the event Customer fails to meet the Course commitment specified within this Agreement during the Agreement period, the pricing will be adjusted to the correct discount level and the difference will become due andpayable. 5. Ownership. Customer acknowledges that Simulab is and shall be the sole and exclusive owner of the System (and all components thereof), and all copyrights, trademarks, service marks, trade names, patents, trade secrets and any other intellectual property rights in and to the System and all portions thereof, and this Agreement shall not be construed in any manner as transferring any rights or ownership or license thereto, except as specifically stated herein. Simulab grants to Customer a limited, non-exclusive license to use the System in connection with and during the term of the Course. Other than as expressly provided by this Agreement, Customer agrees not to modify, sublicense, distribute, market, transfer, reverse compile or make any copies, of any portion of the System, including the demonstration CD-Rom and product documentation. 6. Use. (a) Customer shall use the System(s) (i) in accordance with the product documentation, including, without limitation, the use of only Simulab components and/or replacement parts in connection with the System; (ii) in a careful and proper manner and for the use contemplated by Simulab (as set forth in the product documentation); and (iii) in accordance with all applicable laws, rules, and regulations(including as required by ATLS). Customer shall keep each System in its possession and control at all times. (b) Customer shall keep each System in good repair, condition, and working order, ordinary wear and tear excepted. Customer shall not remove, alter, disfigure or cover up any numbering, lettering or insignia displayed on the System or any of its component parts, and shall ensure that the System is not subjected to careless usage. (c) Customer may not make any alterations, additions or improvements to the System. 7. No Warranty. Customer represents that Customer has selected the System licensed under this Agreement based upon Customer's judgment. Customer agrees that the System(s) licensed under this Agreement is of a design, size, fitness and capacity selected by Customer and that Customer is satisfied that such System(s) is suitable and fit for its intended purposes. Customer further agrees that Simulab licenses and Customer takes the System(s) "AS IS, AND WITHOUT WARRANTIES" and that SIMULAB MAKES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING THEMERCHANTABILITY OR THE FITNESS FOR A PARTICULAR PURPOSE OF THESYSTEM(S). 8. Risk of Damage and Loss. Customer assumes and shall be solely responsible fort he entire risk of the System (or any component thereof) being lost, destroyed, damaged, stolen or confiscated, from whatever the source, from the date upon which Customer receives the System until the System is picked up as set forth in Section 3. In the event that the System is damaged, Simulab shall repair the System and invoice Customer for the costs thereof. In the event that the System is damaged in such a way that it is not commercially reasonable to repair it, then Customer shall pay to Simulab an amount equal to the total value of the System as based on Simulab's current schedule of components and pricing. Because of the difficulty of calculating general damages, in the event the System is lost, stolen or confiscated, then Customer shall pay to Simulab $35,000.00 (thirty-five thousand dollars) in damages. 9. Release and Indemnity. Customer acknowledges that Simulab is not responsible or liable either to Customer or any participants (including instructors) in the Course(s) for the use or misuse of the System or for any personal injury or property damage which may arise in connection with the use of the System. Customer hereby agrees to indemnify, save, protect, defend and hold harmless Simulab, and its agents, directors, and employees from and against any and all losses, damages (including indirect, special or consequential damage), harm, expenses, including legal fees, injuries, claims, actions and suits of any kind arising from (a) any failure on the part of Customer to perform or comply with any of its obligations under this Agreement; (b) any use or misuse of the System by participants in the Course; and (c)any use of the System inconsistent with Simulab's proprietary rights as set forth in Section 4 and elsewhere in this Agreement. 10. Right of Inspection. At all times during the normal Customer hours, Simulab has the right to enter the premises where the System is located for the purpose of inspecting the System. 11. Excusable Delays. Neither Simulab nor Customer shall be liable for a failure to perform hereunder arising from cause or events beyond the reasonable control and without the fault or negligence of the party failing to perform hereunder. 12. Term and Termination. (a) This agreement will remain in effect until terminated. Either party may terminate the agreement at any time upon 30 days notice, provided however, that such termination will not terminate any outstanding Order Confirmations. (b) All payment obligations, disclaimers of warranty, indemnities and exclusions of damages and limits on liability shall survive expiration or termination of this Agreement. 13. Exclusion of Damages; Limitation of Liability. IN NO EVENT WILL SIMULABBE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECTDAMAGES ARISING FROM OR IN RELATION TO THIS AGREEMENT OR THE USEOF THE SYSTEM, HOWEVER CAUSED AND REGARDLESS OF THEORY OFLIABILITY. THIS LIMITATION WILL APPLY EVEN THOUGH SIMULAB HASBEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.SIMULAB'S TOTAL LIABILITY TO THE CUSTOMER FOR ALL CLAIMS ARISINGOUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE,WILL NOT EXCEED THE AMOUNT OF FEES DUE FROM CUSTOMER TOSIMULAB UNDER THIS AGREEMENT. 14. Entire Agreement Modification, Rescission and/or Waiver. This Agreement constitutes the entire agreement between Customer and Simulab with respect to the System(s) being licensed. This Agreement shall not be qualified or supplemented by course of dealing. No waiver or modification by Simulab of any of the terms or conditions of this Agreement shall be effective unless made in writing and signed by Simulab and Customer or their duly authorized agents. Any waiver or indulgence by Simulab as to any required performance by Customer shall not be construed as a waiver as to any subsequent required performance or obligation of Customer regarding the terms of this Agreement. 15. Severability. In case one or more of the provisions contained in this 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 thereof and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been made a part of this Agreement. 16. Remedies; No Waiver of Defaults. The remedies herein reserved shall be cumulative and additional to any other remedies in law or equity. Failure of Simulab to declare any default by Customer immediately upon occurrence thereof, or delay by Simulab in taking any action in connection therewith, shall not waive such default. Simulab shall have the right to declare any such default at any time and take such action as might be lawful or authorized, either at law or in equity. 17. No Assignment. Customer shall not assign this Agreement without the express written consent of Simulab and any such attempt to assign shall be considered void. 18. Notices. Any notice required or permitted to be sent under this Agreement shall be delivered by hand or by registered or certified mail, return receipt requested, to Simulab at the address set forth in the Order Confirmation and to Customer at Customer's address set forth in the Order Confirmation. Notices so mailed shall be deemed effective on the fourth day following the date of deposit into the mail. 19. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington, excluding any rules that would apply the law of another jurisdiction. The parties hereto consent to the personal jurisdiction and exclusive venue of all federal and state courts in King County, Washington, for hearing all disputes under this Agreement. 20. Equitable Relief. Customer acknowledges that damages may not be an adequate remedy for breaches of Section 5 of this Agreement, and that in such cases Simulab shall be entitled to an injunction or other equitable relief.