MTS Azure Marketplace Agreement

MTS Schedule – Managed Cloud Service

This MTS Schedule – Managed Cloud Service (the “MTS Schedule”) is subject to the terms and conditions of our current Master Agreement located at www.medtechsolutions.com/legal. Such terms are incorporated by reference as if fully set forth herein. Client confirms that it understands that use of the MTS Offerings is restricted to the Authorized Use Limitation stated below and any use beyond shall require a further order and payment by Client of an additional fee. The Master Agreement and the applicable Addendum(s) is binding on Client with respect to Client’s use of or access to the MTS Offerings as set forth below.

1. SERVICES PROVIDED 

MTS agrees to provide the use of cloud servers or dedicated servers to Client, for the exclusive use of Client, during the time and at the price agreed upon by Client in the quote or work order provided by MTS to Client (the “Work Order”). MTS will administer, and service said cloud servers or dedicated servers in accordance with the terms contained in the Work Order, this Agreement, the Master Agreement and the Service Level Agreement (“SLA”). Estimated fees include initial setup and installation services as determined by MTS. 

MTS reserves the right to amend the SLA from time to time; provided that any amendment does not result in a material reduction of the SLA service levels. 

2. TERM 

The initial term is stated in the Work Order (the “Initial Term”). The Initial Term shall commence upon the date this MTS Schedule is executed. All services and fees shall be prorated from the date of service. 

Upon completion of the Initial Term in the Work Order, this Agreement will renew automatically (each a “Renewal Term”) unless either Party notifies the other, in writing, not less than ninety (90) calendar days prior to the end of the Initial Term (or any subsequent Renewal Term, as applicable), that such Party wishes to terminate this Agreement.

3. MAINTENANCE 

MTS reserves the right, at its discretion, to require software and/or hardware upgrades for the purposes of maintaining security and stability of the services provided. The cost of such upgrades shall be set by MTS and paid by the Client.

The Client agrees that it may be necessary for MTS to temporarily suspend services for technical reasons or maintenance, the timing of which will be as determined by MTS. Such suspension of the services known as “maintenance windows” will not be an interruption of the services under any Work Order for the purpose of calculating network availability or the Client’s entitlement to SLA credit(s). 

4. FEES AND PAYMENTS 

The monthly fee for services pursuant under any Work Order is due within 15 days of the invoice date. Services will be suspended if payment is not received within 5 days following date due. Company retains the right to remotely audit the number of cloud servers, dedicated servers, cloud storage, users, and any and all other cloud services at any time, and upon discovery of more or less services being provided, Company will apply appropriate changes to monthly charges. Unless otherwise indicated within the Work Order, monthly fees for Managed Cloud Devices may increase by up to 5% on January 1st of each calendar year. The fees for Microsoft Azure are based on consumption and pricing located at https://azure.microsoft.com/en-us/pricing/. These fees may increase or decrease as outlined in Appendix A – Microsoft Cloud Agreement.   

Client acknowledges that Company incorporates certain third-party licenses critical and common to the delivery of the Services, and the costs associated with these licenses are included in fees represented in the Work Order. Company reserves the right, should these licensing costs be increased by those third-parties, and such increases effected upon Company prior to the expiration of the Initial Term, to increase the price of affected line-items by no more than the increase imposed by the third-party. Examples of third-party licenses are Microsoft operating systems, AntiVirus, Citrix, VMWare, etc. Company agrees to reasonably document and substantiate the software cost increases to Client.

5. HARDWARE AND SOFTWARE CONFIGURATIONS 

All dedicated servers and cloud servers must use hardware and software configurations that conform to MTS’ requirements. Use of any particular hardware or software configuration may be declined at the sole discretion of MTS.

In addition to the terms of this Schedule, use of any Microsoft Products is governed by the Microsoft Terms located at https://microsoft.com/en-us/licensing/product-licensing/products.

6. USER CONDUCT 

MTS’ services and servers may only be used for lawful purposes. Any use which violates any local, state, federal, or international laws which may apply to MTS, Client’s local jurisdiction, or any jurisdiction that Client or Client’s site may be subject to is strictly prohibited. 

While using a cloud server or dedicated server from MTS, Client may not: 

– restrict or inhibit any other user from using and enjoying the Internet;

– post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, offensive, indecent, pornographic, profane, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or international law, including without limitation the U.S. export control laws and regulations, and laws protecting intellectual property including copyright, trademark, trade secret, misappropriation and anti-dilution laws;

– post, publish, transmit, reproduce or distribute any information or software which contains a virus or other harmful component;

– post, publish, transmit, reproduce, distribute or in any way exploit any information, software, or other material obtained through the service for commercial purposes (other than as expressly permitted by the provider of such information, software, or other material); and

– post, store, publish, transmit, reproduce, or distribute individually identifiable health information in violation of the USA Health Insurance Portability and Accountability Act (HIPAA) and The Patient Safety and Quality Improvement Act of 2005 (PSQIA) or the privacy protection equivalent of these U.S. laws adopted in any other relevant jurisdiction.

7.   OUT-OF-SCOPE SERVICES 

It is understood that any and all MTS Products and Services that fall outside the scope of this MTS Schedule will be billed at the then Standard Rate less any discount listed within the selected Managed Cloud plan. 

8.   EXCLUSIONS 

The following items are not included in this MTS Schedule, but can be performed by MTS for an additional fee, if requested: 

– Adding or modifying Cloud Platform Services

– Enabling new Cloud Platform Services or features

– Project work as defined by MTS at its sole discretion

9. DISCLAIMERS 

MTS shall not be responsible for: (a) problems caused by resources on the Client’s network that interfere with any MTS Products and Services provided by MTS; (b) any changes made to the client network not communicated to MTS; (c) loss of Internet connectivity to the Client site for any reason; and (d) MTS Products and Services failure that result from any actions or inactions of the Client. 

10. INDEMNIFICATION 

Client agrees to indemnify, defend, and hold harmless MTS from any and all liability, penalties, losses, damages, costs, expenses, attorneys’ fees, causes of action or claims caused by or resulting indirectly from Client’s use of the service or servers which damages Client, MTS, or any other party or parties without limitation or exception. This indemnification and hold harmless agreement extends to all issues associated with Client’s service or servers. 

11. LIMITATION OF LIABILITY 

In no event shall MTS be liable for any special, incidental, indirect, exemplary or consequential damages, including but not limited to any loss of profits, arising out of or relating to this agreement or the delivery of any service or materials hereunder, whether in contract, tort or otherwise.

12. TERMINATION

There are no partial refunds or credits for early termination. All payments to MTS are final and non-refundable. Upon termination, all servers shall remain the property of MTS and are not subject to Client’s demands. 

13. NO WARRANTIES 

MTS makes no warranties or representations of any kind for the services being offered. The service is provided on an “as is” and “as available” basis without warranties of any kind, either express or implied, including but not limited to warranties of title, noninfringement, or implied warranties of merchantability or fitness for a particular purpose. No advice or information given by MTS or its agents or employees shall create a warranty. MTS provides no warranty that the service under any Work Order will be uninterrupted or error free or that any information, software or other material accessible on the service is free from viruses or other harmful components.  Under no circumstances shall MTS be liable for any direct, indirect, special, punitive, or consequential damages that result in any way from Client’s use of or inability to use the service under any Work Order, or for third parties’ use of the service under any Work Order to access Client’s content, or to access the Internet or any part thereof, or Client’s or any third parties’ reliance on or use of information, services, or merchandise provided on or through the service under any Work Order, or that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation or transmission, or any failure of performance.  

Client understands that by placing information on a cloud server or dedicated server from MTS that such information may become available to all Internet users and that MTS may not be able to protect any such information from copyright infringement or other wrongful activity. Client assumes full responsibility and risk for its use of any cloud server or dedicated server. It is the Client’s sole responsibility to evaluate the accuracy, completeness and usefulness of all opinions, advice, services, and other information, and the quality and merchantability of all merchandise, provided by MTS or on the Internet generally. 

14. NO RESALE 

All servers shall be made available to only one individual, organization, or business as named herein. The Client may not include material, sublease, share, or resell space on any server with or to any other individual, organization, or business, without the express prior written approval of MTS. One account on the server will be provided to the Client for their use. Access to the server may not be shared with any third party. MTS reserves the right to monitor any and all communications through or with its facilities. 

15. NO INTERFERENCE WITH OPERATION OF SYSTEM 

Client agrees not to maliciously or intentionally interfere with the proper operation of the servers and network, including but not limited to defeating identification procedures and obtaining access beyond that which Client is authorized for, and impairing the availability, reliability, or quality of service for other clients. Client further agrees not to interfere with the proper operation of other systems reachable through the Internet, including any attempt at unauthorized access. Client agrees to follow the Acceptable Use Policy of any network or service to which Client connects. 

Client agrees to adhere to system policies as published or communicated by MTS, including restrictions on services available, restrictions on certain features, and all other policies designed to protect and enhance the quality and reliability of MTS services by MTS. Client agrees to abide by any and all future policy decisions by MTS.

 

16. SECURITY 

Unless specified in any Work Order, Client agrees that the security of the servers and all services related thereto is solely Client’s responsibility. Client further agrees that if the security of Client’s server(s) has been compromised in any way, Client will notify MTS immediately in writing. Client shall be held fully responsible for any misuse or compromise of Client’s server(s) for which MTS is not properly notified. Client agrees that if any security violations are believed to have occurred in association with Client’s server(s), MTS has the right to suspend access to the affected server pending an investigation and resolution. Client also agrees that MTS has the right to cooperate in any government or legal investigation regarding any aspect of its services, including any servers used by Client. Any use of MTS’ system to engage in software piracy or other violations of law will result in immediate service suspension and be immediately reported to the appropriate authorities. 

17. BACKUP OF DATA 

Client’s use of the service and server(s) under any Work Order is at Client’s sole risk. MTS is not responsible for files and data residing on Client’s server. Unless specified in the Work Order, Client agrees to take full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored on server(s). 

18. TRANSMITTAL OF MATERIALS 

Client agrees not to transmit unsolicited or prohibited advertising or other harassing or illegal materials through electronic mail, postings, or other Internet media. The use of MTS’s services and servers for unsolicited mass mailings, postings, or other activities considered an annoyance to others, commonly referred to as “spamming,” is strictly prohibited and may cause Client’s services under any Work Order to be terminated immediately and without warning, and Client will be held fully responsible for any damages to Client, MTS, or any other party or parties resulting from any such conduct.

19. ENTIRE AGREEMENT 

This Agreement, including all schedules, appendices, exhibits and attachments attached hereto, contains the complete understanding and agreement of the parties and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of the parties.

20. THIRD PARTY SUPPLIERS

In addition to the terms of this Schedule, the Master Agreement and the Work Order, use of the services in this schedule are governed by the applicable third-party terms located at https://medtechsolutions.com/legal/third-party-terms-of-use/.

 

 

Software License Agreement

END USER  

This MTS Schedule – Software License Agreement (the “MTS Schedule”) is subject to the terms and conditions of our current Master Agreement located at www.medtechsolutions.com/legal. The terms and conditions and definitions of the Master Agreement and the Services Order (as defined below) are incorporated herein by reference as if fully set forth herein. Client confirms that it understands that use of the MTS Products and Services is restricted to the Authorized Use Limitation stated below and any use beyond shall require a further order and payment by Client of an additional fee. The Master Agreement and this MTS Schedule is binding on Client with respect to Client’s use of or access to the MTS Products and Services as set forth below.  

RECITALS  

1. MTS is the owner of, or has acquired rights to, the Software and Documentation (as defined below).  
2. MTS desires to grant to Client and Client desires to obtain from MTS a non-exclusive license to use the Software and Documentation solely in accordance with the terms and on the conditions set forth in this Schedule.  

NOW, THEREFORE, the parties hereto agree as follows:  

1. DEFINITIONS.  

1.1 “Designated Equipment” shall mean the hardware products identified on Exhibit “A” with which the Software is licensed for use. 

1.2 “Documentation” shall mean all manuals, user documentation, and other related materials pertaining to the Software which are furnished to Client by MTS in connection with the Software. 

1.3 “License Fee” shall mean payment made to MTS for non-exclusive use of the Software and Documentation. 

1.4 “Software” shall mean the computer programs in executable form listed in the Service Order attached hereto and any subsequent error corrections or updates supplied to Client by MTS pursuant to this Schedule. The Service Order may be amended from time to time by the parties in writing.  

2. SERVICE PROVIDED.   

MTS will provide technical services in accordance with the terms contained in the Service Order, this MTS Schedule, the Master Agreement and the Service Level Agreement (“SLA”).   

MTS reserves the right to amend the SLA from time to time; provided that any amendment does not result in a material reduction of the SLA service levels.   

All MTS Services, unless otherwise specified in the Service Order, are provided during normal business hours, between 8:00am – 5:00pm Client’s local time, excluding weekends and holidays observed by MTS. MTS Services provided outside normal business hours will be billed at 1.5 times the then Standard Rate. 

3. TERM.   

The initial term is stated in the Service Order (the “Initial Term”). The Initial Term shall commence upon the date this MTS Schedule is executed. All services and fees shall be prorated from the date of service.

Upon completion of the Initial Term in the Service Order, this Schedule will renew automatically (each a “Renewal Term”) unless either Party notifies the other, in writing, not less than ninety (90) calendar days prior to the end of the Initial Term (or any subsequent Renewal Term, as applicable), that such Party wishes to terminate this Schedule. 

4. GRANT OF RIGHTS. 

 The License granted for Software under this Schedule authorizes Client on a non-exclusive basis to use the Software on the number of primary systems of Designated Equipment identified in the Service Order for the initial term of this Schedule. The license will automatically renew unless terminated by MTS or You.  The Software shall be used only on such primary systems if they are operating properly. If any primary system is down, the Software may be used on a backup system for that primary system.  

5. DELIVERY.  

Software and Documentation.  MTS shall deliver to Client a master copy of the Software licensed hereunder in executable form as well as Documentation, if any, in electronic files only.  

6. MODIFICATIONS.  

6.1 Error Corrections and Updates. Provided You are current in Your payments required under any MTS schedule, MTS will provide Client with error corrections, bug fixes, patches or other updates to the Software licensed hereunder to the extent available in accordance with MTSMTS’ release schedule for such time as Client maintains the service agreement described in section 10. 

6.2 Other Modifications. Client may, from time to time, request that MTS incorporate certain features, enhancements or modifications into the Software. MTS may, in its sole discretion, undertake to incorporate such changes and distribute the Software so modified to all or any of MTS’s Clients. You understand that Updates do not include additional modules and/or major enhancements for which MTS, in its sole discretion, charges a separate license or subscription fee.

6.3 Title to Modifications. All such error corrections, bug fixes, patches, updates or other modifications shall be the sole property of MTS. 

COPIES.  

7.1 Printed Matter. Except as specifically set forth herein, no Software or Documentation which is provided by MTS pursuant to this Schedule in human readable form, such as written or printed documents, shall be copied in whole or in part by Client without MTS’s prior written agreement. Additional copies of printed materials may be obtained from MTS at the charges then in effect. 

7.2 Machine Readable Matter. Except as specifically set forth herein, any Software provided in machine readable form may not be copied by Client in whole or in part, except for Client’s backup or archive purposes. Client agrees to maintain appropriate records of the number and location of all copies of the Software and make such records available upon MTS’s request. Client further agrees to reproduce all copyright and other proprietary notices on all copies of the Software in the same form and manner that such copyright and other proprietary notices are originally included on the Software.  

8. LICENSE FEES AND PAYMENT. 

8.1 License Fee. In consideration of the license rights granted in Article 2 above, Client shall pay the License Fees or other consideration for the Software and Documentation as set forth on Service Order attached hereto. All amounts payable hereunder by Client shall be payable in United States funds without deductions for taxes, assessments, fees, or charges of any kind. Unless otherwise indicated within the Service Order, monthly fees shall increase by 5% on January 1st of each calendar year.

8.2 OUT-OF-SCOPE SERVICES. It is understood that any and all MTS Products and Services that fall outside the scope of this MTS Schedule will be billed at the then standard rate. 

8.3 Taxes and Other Charges. Client shall be responsible for paying all (i) sales, use, excise, value-added, or other tax or governmental charges imposed on the licensing or use of the Software or Documentation hereunder, (ii) freight, insurance and installation charges, and (iii) import or export duties or like charges.  

9. PROTECTION OF SOFTWARE. 

9.1 Proprietary Notices. Client agrees to respect and not to remove, obliterate, or cancel from view any copyright, trademark, confidentiality or other proprietary notice, mark, or legend appearing on any of the Software or output generated by the Software, and to reproduce and include same on each copy of the Software. 

9.2 No Reverse Engineering. Client agrees not to modify, reverse engineer, disassemble, or decompile the Software, or any portion thereof. 

9.3 Ownership. Client further acknowledges that all copies of the Software in any form provided by MTS or made by Client and any derivate works and/or modifications to the Software are the sole property of MTS and/or its suppliers. Client shall not have any right, title, or interest to any such Software or copies thereof except as provided in this Schedule, and further shall secure and protect all Software and Documentation consistent with maintenance of MTS’s proprietary rights therein. This Schedule does not constitute a work-for-hire agreement.   

9.4 Hardware. Any problems or issues dealing with the hardware, the operating system software and/or third party software You provided are outside the scope of any maintenance services provided by MTS under this Schedule.  You agree that any hardware and/or third party software You independently purchase will be compatible with the Software in conjunction with the recommendations provided to you by MTS. 

9.5 Interface.  Interface purchased by You shall be set forth in the Service Order.  You understand that development of a working interface may require programming, equipment or software to be provided by a third party vendor, who may also impose additional fees upon You.  Should You or the third party vendor fail to cooperate with MTS in its development of the Interface(s), such failure shall not release You from making the full payment due MTS at Software Installation. MTS will not perform any modifications to the third party vendor’s software and/or equipment.  

9.6 Installation and Implementation.  Both parties agree to reasonably cooperate to create a mutually acceptable implementation plan and to use commercially reasonable efforts to implement the Software in accordance with such plan.  You understand that: (i) the hours and timelines set forth in any such implementation plan are estimates and may be subject to change and (ii) unless stated otherwise, any implementation Service hours for any Software are based on Your use of the Software with little or no modifications made by MTS.  Neither party shall unreasonably delay installation and/or implementation of the Software.   

9.7 Proprietary Protection.  MTS and/or its third party suppliers have sole and exclusive ownership of all rights, title, and interest in and to the Software, User Materials and all other Confidential Information, subject only to the limited internal business use license expressly granted to You herein.  This Schedule does not provide You with title or ownership of the Software or User Materials, but only a license for limited, internal use.  This Schedule does not provide You with any title, interest or ownership in or any right to use MTS’s name, trademarks or logo, or any goodwill now or hereafter associated therewith, all of which title, interest, ownership and goodwill is the property of and shall inure exclusively to the benefit of MTS.  You may not use MTS’s name, trademark, logo and/or any part of the Software in any marketing or other materials that will be distributed by You to third parties without MTS’s prior written consent.  

10. MAINTENANCE  

10.1 Client agreed to purchase monthly Software Maintenance Service offered by Company as set forth in the The Service Order and agrees to pay the fee(s) listed in The Service Order.  Software Maintenance Services shall begin 30 days from Software Installation or ninety (90) days after the Effective Date .  Maintenance Services automatically renew for an additional one (1) year periods, at the then current rate, unless either party notifies the other with at least sixty (60) days prior notice of its intention not to renew the Maintenance Services. The initial fees Client will pay for any Maintenance Services are set forth in the Service Order and are due payable monthly.

If any Maintenance Service is terminated or lapses then, at MTSS’s sole discretion, Client may reinstate such Service upon payment of both: (1) a lump-sum payment for any Maintenance Services fees retroactive to the date when such Maintenance Services were terminated or last paid in full and (2) $1000 for each Software license. In addition to any reinstatement fees, Client will be separately charged to bring Client up to the most current version of the Software (including data conversion and other services) and to correct any problems that may have arisen during the non-supported period. 

 10.2   Software Maintenance Services.   

Provided Client is current in payments required under any Agreement with Company, then MTS shall provide Client with the following Software Maintenance Services pursuant to MTS’s then current support policy:  

1. Updates.   MTS shall make available to Client any new release, version or patch of the Software that incorporates additional capabilities, enhancements and/or bug fixes to the Software – and, if any, its Documentation – in accordance with the standard policies of MTS.  Client agrees to promptly add all updates to the System. Client understands that Updates do not include additional modules or capabilities for which MTS, in its sole discretion, charges a separate license fee to its customer base. Nothing contained herein, however, shall require MTS to provide any particular enhancements unless otherwise expressly set forth in this Schedule.   
2. Telephone Support. MTS will provide Client with technical support to resolve issues arising from Client’s internal use of the Software at substantially all times between 8:00am to 5:00pm, Client’s local Time, each business day, Monday through Friday, excluding holidays.  

iii. Exclusions. Software Maintenance Services do not include the following, and such services would be performed for Client at MTS’s then current rate: (a) support or increase in support time due to a cause external to the Software adversely effecting its operability or serviceability which shall include but not be limited water, fire, wind, lightning, transportation, misuse, abuse or neglect; (b) repair of Software modified or altered in any way other than modifications made by Company; (c) support of any third-party vendors’ software such as operating systems, network software, database managers, word processors, etc; (d) Your requested changes to the Software; (e) support services that can be rendered telephonically either by MTS or Client’s personnel (at MTS’s direction) but at Client’s request are performed on-site by MTS; (f) on-site installation of the Updates or additional conversion services; (g) any additional hardware or third party software that may be required to install and use any Updates.  All such excluded maintenance services performed by MTS at Client’s request shall be invoiced to Client on a time and materials basis, plus reasonable expenses associated therewith.    

11. CONFIDENTIALITY. 

11.1 Acknowledgement. Client hereby acknowledges and agrees that the Software and Documentation constitute and contain valuable proprietary products and trade secrets of MTS and/or its suppliers, embodying substantial creative efforts and confidential information, ideas, and expressions. Accordingly, Client agrees to treat (and take precautions to ensure that its employees treat) the Software and Documentation as confidential in accordance with the confidentiality requirements and conditions set forth below. 

11.2 Injunctive Relief. Client acknowledges that the unauthorized use, transfer or disclosure of the Software and Documentation or copies thereof will (i) substantially diminish the value to MTS of the trade secrets and other proprietary interests that are the subject of this Schedule; (ii) render MTS’s remedy at law for such unauthorized use, disclosure or transfer inadequate; and (iii) cause irreparable injury in a short period of time. If Client breaches any of its obligations with respect to the use or confidentiality of the Software or Documentation, MTS shall be entitled to equitable relief to protect its interests therein, including, but not limited to, preliminary and permanent injunctive relief.

11.3 Survival. Client’s obligations under this Article 11 will survive the termination of this Schedule or of any license granted under this Schedule for whatever reason. 

12. WARRANTIES.   

MTS grants You a limited warranty that (i) MTS has developed, owns, and/or possess all rights and interests in the Software necessary to enter into this Schedule; (ii) MTS has full authority to execute and perform this Schedule; and (iii) MTS’s execution and performance of this Schedule will not materially violate any material law or materially breach any material agreement, known by and governing MTS.  MTS also grants to You a limited warranty for one (1) year from the date of Software Installation (“warranty period”), unless modified by or on Your behalf or otherwise employed in a manner not permitted under this Schedule, will substantially perform the material functions described in the User Materials when operated on Hardware and with the Third Party Software purchased from, or pre-approved in writing by, MTS in accordance with the User Materials.  Such limited Warranty is subject to and conditioned upon performance of Your responsibilities under this Schedule including but not limited to the payment of all fees, costs, and annual software maintenance fee.  MTS does not warrant that the Software will meet Your requirements, that the operation of the Software will be uninterrupted or error-free, or that all Software errors can be corrected.  Except for the limited Warranty during the Warranty Period, the Software is provided “AS IS.”  For any breach of the limited Warranty, Your sole and exclusive remedy, and MTS’s entire liability and obligation, shall be, at MTS’s election, to correct the Software or the User Materials, whichever is, in the MTS’s sole determination, reasonably appropriate, provided that no change may be made hereunder to the User Materials which modifies or deletes any material function of the Software.  If any problem operational failure or error of the software has resulted from any alteration of the software (except if directly by MTS or under MTS’s written direction), accident, abuse or misapplication, then at MTS’s sole option, this warranty shall be null and void.    

You warrant that: (i) Your execution of this Schedule will not violate the terms of any pre-existing agreement(s) between You and a third party, (ii) You have full power and authority and are duly authorized to execute and perform the financial and non-financial obligations under this Schedule, and, (iii) if You are anything other than an individual signing on Your own behalf, You have taken all of the necessary corporate action(s) in order to authorize and ratify Your execution and delivery of this Schedule and Your performance under the Schedule.  

Other than as expressly set forth above, MTS does not make or provide any express or implied warranties, conditions, or representations to You or any other person with respect to the Software, the User Materials, or any updates, interfaces, services or works of authorship provided hereunder, or otherwise regarding this Schedule, whether oral or written, express, implied or statutory.  Without limiting the foregoing, any implied warranty of merchantability, implied warranty against infringement, and implied warranty of fitness for a particular purpose are expressly excluded and disclaimed.  

MTS provides no warranty on any third party software and/or hardware not manufactured by MTS. Except as set forth in this Schedule, MTS will not be responsible for any third party software, third party services and/or hardware it provides to you.  

 12.1 Limitation of Liability and Exclusion of Consequential Damages. In the event MTS should be found liable for breach of this Schedule, liability shall be limited to an amount no greater than the amounts paid to MTS by Client for the software licensing fees provided for in this Schedule during the immediately preceding thirty (30) days.  In no event shall MTS be liable to Client, Client’s employees, agents, servants, or any other third party, for any loss of profit, loss of business, direct or indirect, incidental, special, consequential, exemplary, and/or punitive damages arising out of or related to Schedule t, even if MTS has been advised thereof. MTS shall not be liable to Client, if any person, other than MTS (including Client or Client’s agents) alters the MTS Products and Services performed by MTS in any manner. Due to the number of hardware/software combinations and interactions beyond the control of MTS, MTS cannot guarantee that Client’s system(s) will always run trouble-free, nor can MTS guarantee that every solution will be 100% effective. MTS shall not be liable to Client for any problems caused by third party manufacturers of hardware and/or software. 

In the event that the software or any report or information generated by the software is used in connection with any diagnosis or treatment by you and/or any of your employees, agents, representatives, and the like, you agree to accept all responsibility in connection therewith, including responsibility for injury, damage and/or loss related to such diagnosis or treatment, irrespective of whether such injury, damage and/or loss results from your use of the software.  

You represent and warrant to MTS that You are a sophisticated purchaser and acknowledge and agree that the allocation of risks in this Schedule is reflected in the Software License fees, that MTS is unable to test the Software under all possible circumstances, that MTS cannot control the manner in which You shall use the Software, and that the allocation of risks under this Schedule is reasonable and appropriate under the circumstances. 

12.2 Intellectual Property Indemnification.  MTS will, at its own expense, defend any action brought against You to the extent that such action is based on a claim that the Software or any Update of the Software properly used within the scope of this Schedule, in and of itself, infringes any United States patent, copyright, trade secret or other proprietary right, provided that MTS is immediately notified in writing of such claims, lawsuits and other proceedings and MTS is given full right, ability and authority to conduct the defense against any such claim, lawsuit or other proceeding.  In no event shall You settle any such claim, lawsuit, or proceeding without MTS’s prior written approval. 

13. INDEMNIFICATION   

MTS Client agrees to indemnify, defend and hold harmless MTS, its directors, officers, members, employees, contractors, agents and MTS Affiliates from any and all liability, including, but not limited to, penalties, losses, damages, costs, expenses and attorney’s fees, arising from causes of actions or claims caused by: (a) Client’s breach of this Schedule; (b) Client’s violation of any intellectual property rights, third party rights or any applicable law or regulation; (c) Client’s modification or enhancement of the Software; or (d) Client’s exercise or practice of the license granted hereunder  MTS reserves the right to assume control of the defense of any third party claim that is subject to the indemnification by Client, in which event Client will cooperate with MTS in asserting available defenses.

 

14. DEFAULT AND TERMINATION

14.1 Events of Default. This Schedule may be terminated by the non-defaulting party if any of the following events of default occur: (1) if a party materially fails to perform or comply with this Schedule or any provision hereof; (2) if either party fails to strictly comply with the provisions of Section 11 (Confidentiality) or makes an assignment in violation of Section 16 (Non-assignability); (3) if a party becomes insolvent or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; (4) if a petition under any foreign, state, or United States bankruptcy act, receivership statute, or the like, as they now exist, or as they may be amended, is filed by a party; or (5) if such a petition is filed by any third party, or an application for a receiver is made by anyone and such petition or application is not resolved favorably within ninety (90) days. 

14.2 Effective Date of Termination. Termination due to a material breach of Articles 2 (Grant of Rights), 5 (Copies), 7 (Protection of Software), or 8 (Confidentiality) shall be effective on notice. In all other cases, termination shall be effective thirty (30) days after notice of termination to the defaulting party if the defaults have not been cured within such thirty (30) day period. 

15. OBLIGATIONS ON TERMINATION.   

Within ten (10) days after termination of this Schedule, Client shall cease and desist all use of the Software and Documentation and shall return to MTS all full or partial copies of the Software and Documentation in Client’s possession or under its control. If necessary, Client shall provide access to their systems so that MTS may uninstall Software from Client’s system.  

15.1 Late Payments and Penalties.  If any payment due under this Schedule or otherwise owing by You to MTS is not paid within thirty (30) days from its due date, and such payment due is not disputed by You in good faith, MTS may, at its option, charge for its additional costs related to such delinquency at a rate of one and one-half percent (1½ %) per month (eighteen percent (18%) per annum) or if such charges exceed that permitted by applicable law, the highest rate allowed by applicable law, from the date such payment first became due. 

16. NONASSIGNABILITY.  

Client shall not assign this Schedule or its rights hereunder without the prior written consent of MTS. 

17. MISCELLANEOUS.   

This Schedule and its exhibits contain the entire understanding and agreement between the parties respecting the subject matter hereof. This Schedule may not be supplemented, modified, amended, released or discharged except by an instrument in writing signed by each party’s duly authorized representative. All captions and headings in this Schedule are for purposes of convenience only and shall not affect the construction or interpretation of any of its provisions. Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Schedule or of any subsequent default or breach of the same or a different kind. 

   

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Med Tech Solutions (“Seller”) Quotation Terms and Conditions

QUOTATIONS:

 

1. This offer to sell is expressly conditioned on Client’s acceptance of these terms and conditions. 
2. This quotation is valid for 30 days unless sooner withdrawn by Seller. Stenographic and/or clerical errors in Seller’s quotation are subject to correction. 
3. Offers for sale on credit terms are subject to credit approval by Seller. 

D> Recurring or Monthly Expenses quoted are billed to You on a pro rata basis once installed or provided access to, whichever occurs first. 

SALES: 

1. Title to merchandise shall remain with Seller until payment has been received in full. 
2. Unless otherwise stated, payment terms are due upon receipt. Overdue invoices shall be subject to 1½% per month finance charge (18% APR). However, a minimum charge of $25 per month will be assessed. Client shall be liable for all costs of collection incurred by Seller, including but not limited to all court costs and attorney fees, resulting from collection efforts. 
3. All sales, use or excise taxes are excluded from Seller’s quoted prices and are the sole responsibility of Client. Purchases made in, or shipped to, locations in California are subject to California sales tax unless Client provides proof of tax exemption prior to shipment. 
4. Upon acceptance, all orders are binding contracts.   

ELECTRONIC DATA EXCHANGE:

1. The parties may execute an Order Acknowledgement by transmitting and receiving the data contained in the Order Acknowledgement electronically rather than in paper form. To provide the legal validity and enforceability of such Order Acknowledgement, the parties further agree that the data transmitted herein will be considered “in writing” and to have been “signed.” The parties agree not to contest the validity or enforceability of an Order Acknowledgement because of the electronic origination, transmission, storage or handling of such Order Acknowledgement. Any computer printout of the data contained in the Order Acknowledgement will be considered an “original when maintained in the ordinary course of business and will be admissible as between the parties to the same extent and under the same conditions as other business records maintained in documentary form. The parties agree to properly use those security procedures which are reasonably sufficient to ensure that a transmission of the data contained in an Order Acknowledgement is authorized and to protect its business records and data from improper sources. 

DELIVERY OF MATERIALS: 

1. INTEGRATION AND MODIFICATION: 
2. Client’s addition to or variance of the terms herein shall be deemed a counteroffer and of no effect unless accepted and initialed by Seller in writing. 
3. In addition to the foregoing terms and conditions, this quotation, is subject to the terms of the then Master Agreement located at www.medtechsolutions.com/legal and applicable MTS Schedules. The terms of the then Master Agreement and applicable MTS Schedules are incorporated by reference as if fully set forth herein. In the event of a conflict between the terms and conditions of the Master Agreement and applicable MTS Schedules and those of this Quotation, the terms and conditions of this Quotation shall control. 

  By approving this order, Client agrees that they have read and fully understand the above terms and conditions.