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DocuSign Envelope ID: D928996A-68DE-4E98-AF2F-35B2845B2207
<br /> 8. SERVICE PLAN WARRANTY AND LIMITATIONS
<br /> Stryker represents and warrants that the Services shall be performed in a workmanlike manner and with professional diligence and skill.Services will
<br /> comply with all applicable laws and regulations.During the term of the Service Plan,Stryker will maintain the Equipment in good working condition.
<br /> Notwithstanding any other provision of this Agreement,the Service Plan does not include repairs or other services made necessary by or related to,the
<br /> following:(1)abnormal wear or damage caused by misuse or by failure to perform normal and routine maintenance as set out in the Stryker maintenance
<br /> manual or operating instructions.(2)accidents(3)catastrophe(4)acts of god(5)any malfunction resulting from faulty maintenance,improper repair,
<br /> damage and/or alteration by non-Stryker authorized personnel(6)Equipment on which any original serial numbers or other identification marks have
<br /> been removed or destroyed;or(7)Equipment that has been repaired with any unauthorized or non-Stryker components.In addition,in order to ensure
<br /> safe operation of the Equipment,only Stryker accessories should be used.Stryker reserves the right to invalidate the Service Plan if Equipment is used
<br /> with accessories not manufactured by Stryker.
<br /> TO THE FULLEST EXTENT PERMITTED BY LAW,THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION ARE THE ONLY WARRANTIES APPLICABLE
<br /> TO THE SERVICES AND ARE EXPRESSLY IN LIEU OF ANY OTHER WARRANTY BY STRYKER,EXPRESSED OR IMPLIED,INCLUDING,BUT NOT LIMITED TO,
<br /> ANY IMPLIED WARRANTY OF MERCHANTABILITY,NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
<br /> 9. LIMITATION OF LIABILITY
<br /> IN NO INSTANCE WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INCIDENTAL,PUNITIVE,SPECIAL,COVER,EXEMPLARY,MULTIPLIED OR
<br /> CONSEQUENTIAL DAMAGES OR ATTORNEYS'FEES OR COSTS FOR ANY ACTIONS UNDER OR RELATED TO THIS AGREEMENT.
<br /> 10. FORCE MAJEURE
<br /> Except for Customer's payment obligations,which may only be delayed and not excused entirely,neither party to this Agreement will be liable for any
<br /> delay or failure of performance that is the result of any happening or event that could not reasonably have been avoided or that is otherwise beyond its
<br /> control,provided that the party hindered or delayed immediately notifies the other party describing the circumstances causing delay.Such happenings or
<br /> events will include,but not be limited to,terrorism,acts of war,riots,civil disorder,rebellions,fire,flood,earthquake,explosion,action of the elements,
<br /> acts of God,epidemic,pandemic,inability to obtain or shortage of material,equipment or transportation,governmental orders,restrictions,priorities or
<br /> rationing,accidents and strikes,lockouts or other labor trouble or shortage.
<br /> 11. WARRANTY OF NON-EXCLUSION
<br /> Each party represents and warrants that as of the Effective Date,neither it nor any of its employees,are or have been excluded terminated,suspended,or
<br /> debarred from a federal or state health care program or from participation in any federal or state procurement or non-procurement programs.Each party
<br /> further represents that no final adverse action by the federal or state government has occurred or is pending or threatened against the party,its affiliates,
<br /> or,to its knowledge,against any employee,Stryker,or agent engaged to provide Services under this Agreement.Each party also represents that if during
<br /> the term of this Agreement it,or any of its employees becomes so excluded,terminated,suspended,or debarred from a federal or state health care program
<br /> or from participation in any federal or state procurement or non-procurement programs,such will promptly notify the other party.Each party retains the
<br /> right to terminate or modify this Agreement in the event of the other party's exclusion from a federal or state health care program.
<br /> 12. COMPLIANCE
<br /> Stryker,as supplier,hereby informs Customer,as buyer,of Customer's obligation to make all reports and disclosures required bylaw or contract,including
<br /> without limitation properly reporting and appropriately reflecting actual prices paid for each item supplied hereunder net of any discount(including
<br /> rebates and credits,if any)applicable to such item on Customer's Medicare cost reports,and as otherwise required under the Federal Medicare and
<br /> Medicaid Anti-Kickback Statute and the regulations thereunder(42 CFR Part 1001.952(h)).Pricing under this Agreement(and each Service Plan)may
<br /> constitute discounts on the purchase of Services.Customer represents that(i)it shall make all required cost reports,and(ii)it has the corporate power
<br /> and authority to make or cause such cost reports to be made.To the extent required by law,Customer and Stryker agree to comply with the Omnibus
<br /> Reconciliation Act of 1980 (P.L.96Z499) and it's implementing regulations (42 CFR, Part 420).To the extent applicable to the activities of Stryker
<br /> hereunder,Stryker further specifically agrees that until the expiration of four(4)years after furnishing Services pursuant to this Agreement,Stryker shall
<br /> make available,upon written request of the Secretary of the Department of Health and Human Services,or upon request of the Comptroller General,or
<br /> any of their duly authorized representatives,this Agreement and the books,documents and records of Stryker that are necessary to verify the nature and
<br /> extent of the costs charged to Customer hereunder.Stryker further agrees that if Stryker carries out any of the duties of this Agreement through a
<br /> subcontract with a value or cost of ten thousand dollars($10,000)or more over a twelve(12)month period,with a related organization,such subcontract
<br /> shall contain a clause to the effect that until the expiration of four(4)years after the furnishing of such services pursuant to such subcontract,the related
<br /> organization shall make available,upon written request to the Secretary,or upon request to the Comptroller General,or any of their duly authorized
<br /> representatives the subcontract,and books and documents and records of such organization that are necessary to verify the nature and extent of such
<br /> costs. In performance of this Agreement, Stryker shall also comply with all applicable state and federal regulations, including but not limited to
<br /> discrimination laws.
<br /> 13. CONFIDENTIALITY
<br /> To the extent permissible under North Carolina disclosure and/or Public Records regulations,the parties hereto shall hold in confidence this Agreement
<br /> and the terms and conditions contained herein(including Services Plan pricing)and any information and materials which are related to the business of
<br /> the other or are designated as proprietary or confidential,herein or otherwise,or which a reasonable person would consider to be proprietary or
<br /> confidential information;and(b)hereby covenant that they shall not disclose such information to any third party without prior written authorization of
<br /> the one to whom such information relates.The rights and remedies available to a party hereunder shall not limit or preclude any other available equitable
<br /> or legal remedies.
<br /> 14. HIPAA
<br /> Stryker is not a"business associate"of Customer,as the term"business associate"is defined by HIPAA(the Health Insurance Portability and Accountability
<br /> Act of 1996 and 45 C.F.R.parts 142 and 160-164,as amended).All medical information and/or data concerning specific patients(including,but not limited
<br /> to,the identity of the patients),derived incidentally during the course of this Agreement,shall be treated by both parties as confidential,and shall not be
<br /> released,disclosed,or published to any party other than as required or permitted under applicable laws.
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