TERMS AND CONDITIONS
THESE TERMS AND CONDITIONS are subject to and made a part of the Agreement. Capitalized terms used and not defined in this these Terms and Conditions have the meanings assigned to them in the Definitions Addendum at https://www.zolldata.com/legal
1. Orders. ZOLL shall provide, and Customer shall obtain, the ASP Services, Software, Road Safety Products and Road Safety Parts (the “Products”) and Professional Services and Maintenance Services (the “Services”) identified in any Initial Order included in a Master Products and Services Agreement or incorporating these Terms and Conditions (the “Initial Order”) and any Order Form for Products or Services (“Order Form”) or statement of work for Professional Services (“SOW”) mutually agreed, executed and made a part of this Agreement or identified in a purchase order or other agreement for the purchase of defibrillators from ZOLL Medical Corporation (a “Defibrillator Purchase Agreement”).
2. Payment. Customer shall pay ZOLL for Products and Services as provided in the Initial Order and any Order Forms, SOWs or Defibrillator Purchase Agreements (collectively, “Orders”) and this Agreement. All payments must be in U.S. dollars, unless otherwise agreed by the parties. Unless otherwise expressly provided in an applicable Order, Customer will pay ZOLL all amounts due under this Agreement within 30 days after the date of the invoice. Amounts not paid when due will accrue interest at the rate of 1.5% per month, or the maximum allowed by law, whichever is less. Customer shall pay all expenses (including reasonable attorney’s fees) incurred by ZOLL in connection with collection of late payments. Any amounts not paid by Customer when due may result in the forfeiture by Customer, in ZOLL’s sole and absolute discretion, of any discounts previously offered by ZOLL. In addition, ZOLL reserves the right to deny Customer and Customer’s employees, directors, principals, partners, consultants and agents authorized to use ASP Services or Software on behalf of Customer and registered for such use through the website at a unique URL to be provided by ZOLL to Customer (the “ZOLL Site”) or by email in accordance with ZOLL’s procedures for such purpose (“Registered Users”) access to the ASP Services, and to cease providing any or all of the Products and Services, in the event that any invoice is not paid in a timely manner. Customer acknowledges that ZOLL will not be responsible for any damage or liability caused by such cessation. Payment terms are subject to ZOLL’s credit approval. ASP Services Fees, Software Fees, Road Safety Fees, Maintenance Fees and Professional Services Fees (collectively, the “Fees”) exclude, and Customer will make all payments of the Fees to ZOLL free and clear of, all applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (“Taxes”). When applicable, ZOLL may include any Taxes that it is required to collect as a separate line item on an invoice. If Customer is Tax exempt or pays state Taxes directly, then prior to invoicing, Customer must provide ZOLL with a copy of a current tax exemption certificate issued by Customer’s state taxing authority for the given jurisdiction. Unless otherwise provided in the applicable Order, Customer will reimburse ZOLL for all reasonable out-of-pocket expenses (including travel and accommodation expenses) incurred by ZOLL (“Expenses”) in providing the Professional Services or, if Customer requests that Maintenance Services be performed at Customer’s site, in providing such Maintenance Services. Fees are exclusive of, and Customer will pay, all shipping and other transportation charges, insurance and installation charges. For the purpose of payment, "Deployment Date" means the date upon which the deployment of a Product is complete and it is able to function as described in the warranty for such Product in this Agreement, regardless of whether Customer actually uses such Product. "Deployment Effective Date" means the earlier of (a) the Deployment Date of a Product or (b) 90 days from the Effective Date (the “Latest Deployment Date”) of the Order for such Product, unless a delay in the Deployment Date has been caused by ZOLL, in which case the Deployment Effective Date shall be postponed by a number of days equal to the delay that ZOLL has caused; or (c) if Customer does not use Professional Services to deploy a Product, the Effective Date; provided, that the Latest Deployment Date for the Eligibility module and Road Safety Products shall be 180 days from the Effective Date. Usage-based Fees are payable in arrears, and flat Fees are payable in advance. ZOLL may increase Fees annually.
3. Warranties. The warranties for the Products and Services are solely and expressly as set forth in the ASP Services Addendum, Software License Addendum, Road Safety Addendum, Maintenance Services Addendum and Professional Services Addendum (collectively, the “Addenda”). EXCEPT AS EXPRESSLY SET FORTH IN THE ADDENDA, (A) THE PRODUCTS AND SERVICES ARE PROVIDED STRICTLY “AS IS”, WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, WRITTEN OR ORAL; (B) ZOLL DOES NOT PROMISE THAT THE PRODUCTS OR SERVICES WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE OR THAT THEY ARE SUITABLE FOR THE PARTICULAR NEEDS OF CUSTOMER, REGISTERED USERS OR ANY THIRD PARTY; AND (C) ZOLL SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE OR USAGE IN TRADE. CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS AGREEMENT, INCLUDING THE ADDENDA, AND THAT NO WARRANTIES ARE MADE BY ANY OF ZOLL’S LICENSORS OR SUPPLIERS WITH RESPECT TO THIRD PARTY PRODUCTS OR SERVICES. Products and Services may be new or used. Customer acknowledges and agrees that, in entering into the this Agreement, it has not relied upon the future availability of any new or enhanced feature or functionality, or any new or enhanced product or service, including, without limitation, updates or upgrades to ZOLL’s existing product and services. ZOLL’s performance obligations hereunder are limited to those expressly enumerated herein, and payment for ZOLL’s performance obligations shall be due as described herein.
4.1. Protection. Neither party will use any trade secrets, business or financial information, computer software, machine or operator instructions, business methods, procedures, know how, technical, marketing, financial, employee, planning or other information that relates to the business or technology of the other party and is marked or identified as confidential or is disclosed in circumstances that would lead a reasonable person to believe such information is confidential (“Confidential Information”) for any purpose not expressly permitted by this Agreement, and will further disclose the Confidential Information of the party disclosing it (“Disclosing Party”) only to the employees or contractors of the party receiving it (“Receiving Party”) who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. The ASP Services, Software, Firmware, Documentation and the Instructions shall be ZOLL’s Confidential Information (including without limitation any routines, subroutines, directories, tools, programs, or any other technology included in the Software), notwithstanding any failure to mark or identify it as such.
4.2. Exceptions. The Receiving Party’s obligations under Section 4.1 above with respect to any Confidential Information of the Disclosing Party will terminate if and when the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure in writing prior to making such disclosure and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
4.3. Authority. Prior to making any disclosure to ZOLL of patient information, Customer covenants that it has, or will obtain,, in accordance with federal, state and local laws relating to such information, including but not limited to HIPAA, the legal right to disclose such information to ZOLL, including, if required, a properly executed, written authorization from each patient or patient’s authorized representative documenting the patient’s express written consent to enable the disclosure by Customer to ZOLL of such information.
5.1. ZOLL. ZOLL will defend, at its own expense, any action against Customer or its or any of its agents, officers, director, or employees (“Customer Parties”) brought by a third party alleging that any of the Products or Services infringe any U.S. patents or any copyrights or misappropriate any trade secrets of a third party, and ZOLL will pay those costs and damages finally awarded against the Customer Parties in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Customer: (a) notifying ZOLL promptly in writing of such claim or action; (b) giving ZOLL sole control of the defense thereof and any related settlement negotiations; and (c) cooperating with ZOLL and, at ZOLL’s request and expense, assisting in such defense. If any of the Products or Services becomes, or in ZOLL’s opinion is likely to become, the subject of an infringement claim, ZOLL may, at its sole option and expense, either: (i) procure for Customer the right to continue using it; (ii) modify it, or replace it with a substantially similar product or service so that it becomes non-infringing; (iii) in the case of Software or a Road Safety Product, require its return and refund Customer a pro-rata portion of the Fees for such Software or Road Safety Product based on a 36-month straight-line depreciation or (iv) terminate this Agreement, in whole or in part. Notwithstanding the foregoing, ZOLL will have no obligation under this Section 5.1 or otherwise with respect to any infringement claim based upon: (1) use of any of the Products or Services not in accordance with this Agreement; (2) any use of any of the Products or Services in combination with products, equipment, software, services or data not supplied by ZOLL if such infringement would have been avoided but for the combination with other products, equipment, software, services or data; (3) the failure of Customer to implement any replacements, corrections or modifications made available by ZOLL for any of the Products or Services including, but not limited to, any use of any release of the Software other than the most current release made commercially available by ZOLL; (4) Customer Content; or (5) any modification of any of the Products and Services or use thereof by any person other than ZOLL or its authorized agents or subcontractors. This Section 5.1 states ZOLL’s entire liability and the exclusive remedy for any claims of infringement.
5.2. Customer. Customer shall indemnify, defend and hold ZOLL and its agents, officers, directors and employees (the “ZOLL Parties”) harmless from and against any and all liabilities, losses, expenses, damages and claims (collectively, “Claims”) that arise out of the following except to the extent the Claims are due to the gross negligence, intentional misconduct or breach of this Agreement by the ZOLL Parties: (i) information provided to any of the ZOLL Parties by any of the Customer Parties; (ii) the Customer Parties’ use of any of the Products or Services; (iii) the actions or omissions of the Customer Parties in connection with participation in ZOLL’s online customer community or exercise of any administrative rights, including database access rights, that Customer requests be granted when Customer has elected to receive, and is receiving, Managed Services or otherwise; (iv) use by the Customer Parties of any of the Products or Services in combination with Customer’s products or services or Third Party Products or Services; (v) any modifications made by the Customer Parties to any of the Products and Services; (vi) misuse by the Customer Parties of any of the Products and Services (vii) infringement by the Customer Parties of any third party intellectual property right; (viii) taxes (other than taxes based on ZOLL’s net income), fees, duties and charges, and any related penalties and interest, arising from the payment of the Fees or the delivery of the Products and Services to Customer hereunder; and (ix) any violation of laws or regulations, including without limitation applicable export and import control laws and regulations in the use of any of the Products or Services, by the Customer Parties.
6. Limitation of Liability. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT WILL ZOLL OR ITS AFFILIATES, SUBCONTRACTORS OR SUPPLIERS BE LIABLE, EVEN IF ADVISED OF THE POSSIBILITY, FOR: (i) SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), (ii) LOSS OF PROFIT, DATA, BUSINESS OR GOODWILL, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR (iii) ANY LOSSES, COSTS OR DAMAGES ASSOCIATED WITH CUSTOMER’S PRODUCTS OR OTHER ELEMENTS INCORPORATED OR USED THEREWITH WHICH WERE NOT PROVIDED BY ZOLL OR WITH RESPECT TO ANY MODIFICATIONS MADE TO THE PRODUCTS OR SERVICES OR MISUSE OF THE PRODUCTS OR SERVICES. ZOLL’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH ANY ADDENDUM, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT PAID TO ZOLL BY CUSTOMER FOR THE PRODUCTS AND SERVICES PROVIDED UNDER SUCH ADDENDUM DURING THE 12-MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. Customer acknowledges that these limitations reflect the allocation of risk set forth in this Agreement and that ZOLL would not enter into this Agreement without these limitations on its liability. Customer agrees that these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy. The remedies in this Agreement are Customer’s sole and exclusive remedies. In addition, ZOLL disclaims all liability of any kind of ZOLL’s licensors and suppliers, for Third Party Products or Services, and for the actions or omissions of Customer’s representatives, including in connection with participation in ZOLL’s online customer community or exercise of any administrative rights, including database access rights, that Customer requests be granted to such representatives when Customer has elected to receive, and is receiving, Managed Services or otherwise. If a Customer is part of the U.S. federal government, (a) products are not specifically designed, manufactured or intended for sale as parts, components or assemblies for the planning, construction, maintenance, or direct operation of a nuclear facility, or the flight, navigation, or communication of aircraft or ground support equipment, the control of hazardous materials, or other ultra-hazardous activities; (b) Customer is solely liable if products purchased by Customer are used for these applications; and (c) Customer will indemnify and hold ZOLL harmless from all loss, damage, expense or liability arising out of such use.
7. Ownership. All right, title and interest, including but not limited to all existing or future copyrights, trademarks, service marks, trade secrets, patents, patent applications, know how, moral rights, contract rights, and proprietary rights, and all registrations, applications, renewals, extensions, and combinations of the foregoing (“Intellectual Property Rights”), in and to the following are the exclusive property of ZOLL (or, as the case may be, its licensors and suppliers): (i) the ASP Services, Underlying Software, Access Software, Software, Firmware, Documentation, Instructions and all proprietary technology used by ZOLL to perform its obligations under this Agreement; (ii) all software, tools, routines, programs, designs, technology, ideas, know-how, processes, techniques and inventions that ZOLL makes, develops, conceives or reduces to practice, whether alone or jointly with others, in the course of performing the Professional Services; (iii) the fully compiled version of any of the foregoing software programs that can be executed by a computer and used without further compilation (the “Executable Code”); (iv) the human readable version of any of the foregoing software programs that can be compiled into Executable Code (the “Source Code”); (v) all enhancements, modifications, improvements and derivative works of each and any of the foregoing and (vi) all ideas, suggestions or other comments provided by Customer or its representatives to ZOLL regarding each of the foregoing or otherwise in any form, manner or place, including but not limited to ZOLL’s online customer community, advisory committees and annual summits (the “ZOLL Property”). If any derivative work is created by Customer from the Products or Services, ZOLL shall own all right, title and interest in and to such derivative work. Any rights not expressly granted to Customer hereunder are reserved by ZOLL (or its licensors and suppliers, as the case may be).
8. Term and Termination.
8.1. Term. The term of this Agreement (“Term”) begins on the Effective Date and continues until it expires or is terminated as set forth herein. The term of each Order begins on the effective date of such Order and continues until it expires as set forth therein or is terminated as set forth herein.
8.2. Termination. Either party may terminate this Agreement or any Order without cause on 30 days’ prior written notice to the other party. Either party may terminate this Agreement or any Order if the other party materially defaults in the performance of any of its obligations hereunder and fails to cure such default within 20 days after written notice from the non-defaulting party.
8.3. Effects of Termination. Upon expiration or termination of this Agreement or any Order for any reason: (a) all amounts, if any, owed to ZOLL under this Agreement or the Order that has expired or been terminated (the “Expired or Terminated Document”) before such termination or expiration will become immediately due and payable; (b) Customer’s right to access the Products and Services, and all licensed rights granted, in the Expired or Terminated Document will immediately terminate and cease to exist; and (c) Customer must (i) promptly discontinue all use of any Products or Services provided under the Expired or Terminated Document (ii) erase all copies of Software from Customer’s computers and the computers of its customers and return to ZOLL or destroy all copies of such Software and related Documentation on tangible media in Customer’s possession and (iii) return or destroy all copies of the Documentation and Instructions in Customer’s possession or control; (d) each party shall promptly discontinue all use of the other party’s Confidential Information disclosed in connection with the Expired or Terminated Document and return to the other party or, at the other party’s option, destroy, all copies of any such Confidential Information in tangible or electronic form. Additionally, if any Order for ASP Services or for Software that is subject to a Subscription License (other than RescueNet® @Work) is terminated within 12 months of the Deployment Effective Date of such Order (or other period specified in such Order) by ZOLL for a material default or Customer without cause, then Customer immediately shall pay ZOLL an early termination fee equal to the amount of (x) the initial Annual Fee for such ASP Services or Subscription License (or other amount specified in such Order) minus (y) the sum of Monthly Fees for such ASP Services or Subscription License paid by Customer to ZOLL prior to the date of termination. Upon ZOLL’s request, Customer will provide a written certification (in the form acceptable to ZOLL), certifying as to Customer’s compliance with its post-termination obligations set forth in this Section 8.3.
9. General Provisions.
9.1. Compliance with Laws. Customer shall comply with all applicable laws and regulations, and obtain required authorizations, concerning its use of the Products and Services, including without limitation if applicable all export and import control laws and regulations. Customer will not use any of the Products or Services for any purpose in violation of any applicable laws. ZOLL may suspend performance if Customer is in violation of applicable laws or regulations.
9.2. Audits and Inspections. Upon written request from ZOLL, Customer shall furnish ZOLL with a certificate signed by an officer of Customer stating that the Products and Services are being used strictly in accordance with the terms and conditions of this Agreement. During the Term and for a period of six months following the termination or expiration of this Agreement, upon prior written notice, ZOLL will have the right, during normal business hours, to inspect, or have an independent audit firm inspect, Customer’s records relating to Customer’s use of the Products and Services to ensure it is in compliance with the terms of this Agreement, including with any limitation on the number of servers, personal computers or portable devices on which Customer may install the Software hereunder; the number of Customer users that may use the Software hereunder; the number of Customer users that may concurrently user the Software or ASP Services hereunder (the “Concurrent Users”); for Fees based on Concurrent Users, the number of such users listed in the Order for such Fees (the “Concurrent Users Cap”); the number of patient care records generated through the software hereunder; on the number of vehicles or other mechanism upon which pricing is based hereunder. The costs of the audit will be paid by ZOLL, unless the audit reveals that Customer’s underpayment of Fees exceeds five percent, other than ePCR Monthly Fees that are subject to adjustment as described in an Order. Customer will promptly pay to ZOLL any amounts shown by any such audit to be owing (which shall be calculated at ZOLL’s standard, non-discounted rates) plus interest as provided in Section 2 above.
9.3. Assignments. Customer may not assign or transfer, by operation of law or otherwise (including in connection with a sale of substantially all assets or equity, merger or other change in control transaction), any of its rights under this Agreement or any Order (including its right to use any Products or Services) to any third party without ZOLL’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be null and void. ZOLL shall have the right to assign this Agreement or any Order to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise, and to contract with any third party to provide part of any of the Products and Services.
9.4. U.S. Government End Users. If Customer is a branch or agency of the United States Government, the following provision applies. The Software, Documentation and Instructions are composed of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995) and if provided hereunder are (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202 1 (JUN 1995) and 227.7202 3 (JUN 1995).
9.5. Notices. All notices, consents, and approvals under this Agreement must be delivered in writing by electronic mail, courier, electronic facsimile, or certified or registered mail (postage prepaid and return receipt requested) to the other party at the address set forth in the most recent Order or Defibrillator Purchase Agreement and, in the case of ZOLL, to the attention of the Chief Financial Officer (or to such other address or person as from time to time provided by such party in accordance with this Section), and will be effective upon receipt or three (3) business days after being deposited in the mail as required above, whichever occurs sooner.
9.6. Governing Law and Venue; Waiver of Jury Trial. This Agreement will be governed by and interpreted in accordance with the laws of the State of Colorado without reference to its choice of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement shall be brought in a federal or state court in Denver, Colorado, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
9.7. Remedies. Except as otherwise expressly provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative. Customer acknowledges that the Products and Services are built on valuable trade secrets and proprietary information of ZOLL, that any actual or threatened breach hereof will constitute immediate, irreparable harm to ZOLL for which monetary damages would be an inadequate remedy, and that ZOLL will be entitled to injunctive relief for such breach or threatened breach. Customer further agrees to waive and hereby waives any requirement for the security or the posting of any bond in connection with such remedies. Such remedies shall not be considered to be the exclusive remedies for any such breach or threatened breach, but shall be in addition to all other remedies available at law or equity to ZOLL.
9.8. Waivers. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
9.9. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement will continue in full force and effect. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.
9.10. Independent Contractors. The parties are entering into, and will perform, this Agreement as independent contractors. Nothing in this Agreement will be construed to make either party the agent of the other for any purpose whatsoever, to authorize either party to enter into any contract or assume any obligation on behalf of the other or to establish a partnership, franchise or joint venture between the parties.
9.11. Third Parties. Customer is solely responsible for, and none of the fees set forth herein shall be deemed to cover, any amounts owed to third parties in connection with the use of the Products and Services, including without limitation, clearinghouse fees. If Customer engages a third-party provider (“Third Party Provider”) to deliver products or services, including without limitation software, integrated into or receiving data from or accessing the Products or Services (“Third Party Products or Services”), Customer agrees to obtain ZOLL’s prior consent to such integration, receipt or access (collectively, a “Transfer”). If Customer requests a Transfer, Customer represents, warrants and agrees that: (i) ZOLL, in its sole and absolute discretion, shall have the right to agree to such Transfer or decline to do so; (ii) ZOLL shall have no liability, and makes no representation, with respect to such Third Party Products or Services; (iii) the Third Party Provider shall not be an agent of ZOLL as a result of the Transfer; (iv) the Third Party Provider shall not receive, maintain, or transmit PHI on behalf of ZOLL, as a result of the Transfer; and (v) installation, if any, of such Third Party Products or Services by ZOLL shall constitute Professional Services, a condition of which shall be the execution of an Order for such Professional Services. Upon termination of Customer’s agreement with a Third Party Provider pertaining to Third Party Products or Services, Customer immediately shall terminate Third Party Provider’s access to the Products and Services and notify ZOLL thereof. If the Third Party Products or Services result in the sharing of Customer Content with Third Party Provider, Customer consents to the sharing by ZOLL and its affiliates of Customer Content with such Third Party Provider for the sole purpose of Third Party Provider’s delivery of the Third Party Products or Services and represents that such sharing does not violate any agreement, law, regulation or other legal standard, including but not limited to any business associate agreement or other requirement of HIPAA. To the extent the Products or Services contain software owned by a third party for which ZOLL has a license agreement with a third party, the Products and Services and all rights granted hereunder are expressly limited by and subject to any license agreements ZOLL may have for such software.
9.12. Force Majeure. Neither party shall be liable for damages for any delay or failure of performance hereunder (other than payment obligation) arising out of causes beyond such party’s reasonable control and without such party’s fault or negligence, including, but not limited to, failure of its suppliers to timely deliver acceptable parts or services, any act or omission of Customer that interferes with or impedes ZOLL’s performance hereunder, acts of God, acts of civil or military authority, fires, riots, wars, embargoes, Internet disruptions, hacker attacks, or communications failures (a “Force Majeure Event”). In the event ZOLL’s production is constrained because of any condition described in the preceding sentence, then ZOLL will have the right to allocate production and deliveries of Products and Services among its customers as ZOLL, in its discretion, determines.
9.13. Entire Agreement; Amendment; No Third Party Beneficiaries; Online Customer Community; Survival. These Terms and Conditions, the Addenda, the Orders and any attachments, addenda and exhibits thereto (collectively, the “Agreement”) constitute the entire agreement between the parties regarding the subject hereof and supersede all prior or contemporaneous agreements, understandings, and communication, whether written or oral, except agreements at zollonline.com. Any other representation or agreement, whether written or oral, including but not limited to any purchase order issued by Customer, shall be wholly inapplicable to the Products and Services and shall not be binding in any way on ZOLL. This Agreement may not be amended or changed or any provision hereof waived except in writing signed by both parties. Any different or additional terms in any purchase order, confirmation or similar form issued or otherwise provided by Customer but not signed by an authorized representative of ZOLL shall have no force or effect. Neither party shall have any obligation to enter into any Order. Customer understands and agrees that its authorized representatives may participate in ZOLL’s online customer community in accordance with the terms of such community. There are no third party beneficiaries of this Agreement. Those provisions of this Agreement that may be reasonably interpreted as surviving termination of this Agreement or the survival of which is necessary for the interpretation or enforcement of this Agreement shall continue in full force and effect in accordance with their terms notwithstanding the termination hereof including, but not limited to, Section 4 (Confidentiality), Section 5 (Indemnification), Section 6 (Limitation on Liability), Section 7 (Ownership), Section 8.3 (Effects of Termination) and Section 9 (General Provisions). This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.