Hill-Rom Company, Inc. (“Hill-Rom”)
Terms and Conditions
(“Agreement”)
ComLinx® Nurse Communication Module (NCM v3.4 & 5.x)
Software, Parts, and Labor Service Contracts
I. SERVICE CONTRACT OPTIONS. This Agreement sets forth the terms and conditions for the service contracts offered for all ComLinx® Nurse Communication Module (“NCM”) systems. Hill-Rom offers three optional service contracts which cover the following: (A) Software, (B) Parts, and (C) Labor. Additionally, all NCM 5.X Customers who do not purchase the Labor service contract are required to purchase service contract (D) Mandatory NCM 5.X Preventative Maintenance. Service contracts may be purchased by Customer on an annual basis.
A. Software Service Contract
Scope. The Software service contract provides Customer with Major Releases and Minor Releases of the NCM Licensed Software and remote technical assistance for Supported Versions of the Licensed Software. Services related to the on-site installation or configuration of software upgrades (either Major or Minor Releases) may be provided to Customer either as part of the product warranty during the warranty period, pursuant to the optional Labor Service Contract or on a fee-for-service basis, subject to the then current fee for such services.
Remote Technical Assistance. To report any system deficiency, Customer’s designated representative shall contact Hill-Rom’s Technical Support Center at 800-445-3720 or via email at . Hill-Rom’s Technical Support team will attempt to troubleshoot and solve software issues remotely. Hill-Rom shall use commercially reasonable efforts to correct any reproducible and material error in the system software. Hill-Rom shall not be responsible for correcting errors not attributable to or that do not relate to the Hill-Rom Provided Components or Hill-Rom Provided Software.
Exclusions. In addition to any other stated exclusions, the Software service contract does not include any parts or labor.
B. Parts Service Contract
Scope. The Parts service contract provides Customer with repair or replacement services for the Covered Parts (as defined herein). Hill-Rom will repair or replace Covered Parts which, in the reasonable discretion of Hill-Rom, fail to conform to published specifications and product Documentation. The Hill-Rom Provided Components which are covered by the Parts service contract are: servers, clients, monitors, DXP’s / MP5000 and related boards, PDC, CEC, loader cards, audio cards, audio stations, switches, dome lights, remote locating receivers, and BIU’s (“Covered Parts”). Hill-Rom’s obligations under this offering are expressly limited to repair or replacement of the Covered Parts. Replacement parts may be new or refurbished in Hill-Rom’s sole discretion.
Returns. Covered Parts shall be returned by Customer through the issuance by Hill-Rom of a return materials authorization (“RMA”). Customer must contact Hill-Rom Technical Support at 800-445-3720 and request an RMA number. Unless excused by Hill-Rom in writing, Customer shall, within thirty (30) days of receipt of a replacement part, return to Hill-Rom at Customer’s sole cost and risk of loss the corresponding non-conforming Covered Part. Customer’s shipping information shall reference the applicable RMA. The issuance of an RMA number does not limit Hill-Rom’s ability to deny repair or replacement services where the applicable part is ultimately found to be conforming or out of scope.
Exclusions. In addition to any other stated exclusions, the Parts service contract does not include any software, labor, or any parts (or servicing of parts) which are not Covered Parts.
C. Labor Service Contract
Scope. The Labor service contract provides Customer with a) field service labor, and b) annual preventative maintenance services. This optional service contract is only available to Customers who also purchase the Software service contract.
Field Service Labor. After providing Customer with remote technical assistance pursuant to the Software service contract, Hill-Rom will dispatch a Field Service Representative to Customer’s site only after Hill-Rom reasonably determines that the issue cannot be fixed remotely. Once dispatched to Customer’s site, the Hill-Rom Field Service Representative will exercise best efforts to arrive at the Customer’s site within the on-site response times listed below based upon geography and severity.
1. Severity Level 1. 4-8 hours of dispatch time. (Applicable system deficiencies include those that render the entire system inoperable – more than one room, terminal or individual device down)
2. Severity Level 2. 12 to 24 hours of dispatch time. (Applicable system deficiencies include those that render individual rooms inoperable and which do not impact the functionality of the entire system)
3. Severity Level 3. 24 to 72 hours of dispatch time. (Applicable system deficiencies include those that impact NCM system enhancements - user errors, info request, cosmetic issues etc.)
Annual Preventative Maintenance. One (1) annual Preventative Maintenance (“PM”) service per NCM server shall also be provided, to be conducted on a date (or where required, on a series of consecutive dates) as mutually agreed upon by the parties. The on-site Hill-Rom Representative shall document the PM and provide Customer with an outcome report. The annual PM also includes installation and certification of the latest available Minor Releases as well as required travel expenses on the agreed to PM date(s).
Exclusions. In addition to any other stated exclusions, the Labor service contract does not include parts (even in the event parts are required in order to install the Minor Releases during the course of the annual PM service) or any software other than Minor Releases made available during the annual PM service.
D. Mandatory Preventative Maintenance Program. (NCM 5.X Customers Only)
Scope. The Preventative Maintenance Program is a mandatory service offering for those NCM 5.X customers who do not purchase the Labor service contract. The Mandatory Preventative Maintenance Program includes one (1) annual Preventative Maintenance (“PM”) service per NCM server to be conducted on a date (or where required, on a series of consecutive dates) as mutually agreed upon by the parties. The on-site Hill-Rom Representative shall document the PM and provide Customer with an outcome report. The annual PM also includes installation and certification of the latest available Minor Releases as well as required travel expenses on the agreed to PM date(s).
Exclusions. In addition to any other stated exclusions, the Mandatory Preventative Maintenance Program does not include any parts (even in the event parts may be required in order to install the Minor Releases during the course of the annual PM service) or any software other than Minor Releases made available during the annual PM service.
II. Remote Access. Software service contract Customers must notify Hill-Rom’s technical support center upon discovery of any deficiency in the NCM system and describe the deficiency with adequate specificity to ensure Hill-Rom may identify and verify the problem. A Hill-Rom technical support representative will, if available, access Customer’s NCM system via remote access using the intelligent device management (IDM) tool (hereinafter “Hill-Rom Remote Services”), to verify the deficiency. Customer acknowledges and agrees that the Hill-Rom Remote Services tool may monitor Customer’s NCM systems, NCM system events and conditions via remote access through a secure 443 port using 128-bit (or higher) SSL encryption. In the event Customer does not permit Hill-Rom to remotely access the NCM system, Hill-Rom’s ability to troubleshoot system deficiencies will be severely impacted; however Hill-Rom will exercise commercially reasonable efforts to resolve any NCM inoperability issues.
III. Term, Payment, and Renewals. Customer’s participation in any service contract set forth herein shall be on an annual basis. Hill-Rom shall issue a proposal to Customer which will set forth the price for each service contract, based upon Customer’s NCM configuration. Prices are firm until the end of the existing annual term unless modifications (moves, adds, changes) are made to the NCM system/configuration, in which case system coverage will be evaluated and new pricing will be proposed. Customer shall select its desired service contract(s), issue a purchase order for the stated price and pay Hill-Rom the annual fees set forth in the proposal. Any lapse of service contracts may require a re-certification of the system to ensure the NCM system meets specifications for service contract coverage. Upon expiration of the service contract period, any terms and conditions are subject to change based upon Hill-Rom’s then current program offerings, including but not limited to purchase price, hours of coverage, response times, and exclusions.
IV. MALWARE PROTECTION. Each party shall be responsible for maintaining up to date industry-standard Malware protection software and security measures. Hill-Rom is responsible for taking appropriate steps to ensure Malware protection, up to the date of delivery to the Customer of the NCM system and any software releases made available under any service contract; after the date of delivery it becomes Customer’s responsibility.
V. Other Limitations and Exclusions. Any goods or services provided outside of the explicit scope of those set forth in these service contracts are billable at Hill-Rom’s current fee for service rates with a four (4) hour minimum. Such rates are inclusive of travel and expenses.
EXCEPT AS SET FORTH IN THIS AGREEMENT, HILL-ROM MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. HILL-ROM DOES NOT WARRANT THAT THE OPERATION OF THE NCM SYSTEM OR THE SERVICES PROVIDED HEREUNDER WILL BE ERROR FREE OR UNINTERRUPTED.
IN NO EVENT SHALL HILL-ROM’S LIABILITY FOR DAMAGES EXCEED THE AMOUNT OF FEES AND CHARGES PAID BY CUSTOMER FOR THE SOFTWARE, PARTS AND/OR SERVICES PROVIDED HEREUNDER THAT IS THE SUBJECT OF THE LOSS, DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. In no event shall Hill-Rom be liable for any incidental, anticipatory, consequential, special, indirect or punitive damages, including, without limitation, Lost data and lost profits, under this Agreement, REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
VI. Miscellaneous Provisions.
A. Entire Agreement. This Agreement constitutes the entire agreement and exclusive statement of terms between the parties hereto with respect to the NCM service contracts and shall supersede all prior agreements, negotiations, representations, understandings and communications (whether written and oral) between the parties relating thereto. Any different, conflicting, additional, or supplementary terms or conditions in a purchase order are not binding upon Hill-Rom and are hereby rejected.
B. Choice of Law. This Agreement will be governed by the laws of the state within the United States in which the NCM system is licensed for use. When the NCM system is licensed for use outside of the United States the substantive laws of the state of North Carolina shall apply. The United Nation Convention on the international sales of good shall not apply to this Agreement.
C. Notices. Any notice required to be given under this Agreement must be in writing, postage and delivery charges pre-paid, and may be sent by hand delivery, overnight mail service, or certified mail with return receipt requested, to the other party, with a copy to the Legal Department of the respective party.
D. Force Majeure. Neither Party shall be liable to the other for failure or delay in the performance of a required obligation if such failure or delay is caused by an act of any federal, state or local governmental authority, act of God, riot, fire, earthquake, storm, flood, lightning, electrical power failure, natural disaster or any other cause beyond its immediate control.
E. Confidential Information. Confidential information means any proprietary data or information disclosed by one party (the “Disclosing Party) to the other party (the “Receiving Party”) that is not generally known to the public or by its nature or under the circumstances surrounding its disclosure should be reasonably considered confidential (“Confidential Information”). Each party agrees to hold the Confidential Information of the other party in confidence and to protect it from disclosure with the same degree of care that it uses to protect its own information of like importance. The Receiving Party may disclose the information (i) as required by law and/or (ii) to employees, agents, contractors and consultants who have a need to know and who are obligated to maintain the confidentiality of the information to at least the same degree as the Receiving Party’s confidential information of like importance. Information will cease to be Confidential Information under this Agreement if the information enters the public domain (other than through a breach of this Agreement), is independently developed by the Receiving Party (or its employees, agents, contractors or consultants), or is provided to the Receiving Party by a third party (without an obligation of confidentiality).
F. Express Authority. The individual accepting these Terms and Conditions on behalf of Customer represents that he or she is authorized to bind Customer to the terms of this Agreement.
Exhibit A
Definitions
As used in this Agreement, the following capitalized terms have the following meaning:
HRCWSolutions_TermsConditions(NCM_ServiceContracts)rev3_July_2014.docx
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Hill-Rom Company, Inc. (“Hill-Rom”)
HRCWSolutions_TermsConditions(NCM_ServiceContracts)rev3_July_2014.docx
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Hill-Rom Company, Inc. (“Hill-Rom”)
1. “Customer” means the purchaser and/or end user of the NCM system.
2. “Documentation” means the then current published manuals, guides, or training materials provided by Hill-Rom to its Customers/end users, in any form or format, that describe the technical specifications and performance characteristics of the NCM system.
3. “Hill-Rom Provided Components” means computer hardware, equipment, devices and components purchased by Customer from Hill-Rom.
4. “Hill-Rom Provided Software” means the combination of Licensed Software and Third Party Programs that is provided to Customer by Hill-Rom (in object code form) as a part of an NCM system.
5. “Licensed Software” shall mean Hill-Rom proprietary software licensed for use with the NCM system. Licensed Software does not include any Third Party Programs.
6. “Malware” means a virus, worm, trap door, back door, snoopware, spyware, malicious logic, Trojan horse, time bomb or clock that would erase data or programming, interfere with the NCM system or software or Customer’s other hardware or software, or otherwise cause the NCM system or software or Customer’s other hardware or software to become inoperable or incapable of being normally used.