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HomeMy WebLinkAboutContract #: 1328 - From: 08-12-2020 To: 12-30-2020 - Stryker - Police Purchase & Sale Agreement Date: August 12, 2020 Contract Number PP000131 Customer Number Custoirner NOR"'rH ANDOVIi:::::R POLICE:: Eftecfiive Date Date of last DEPARTMENT signature below Contact Name Expiration Date Address 1475 OSGOOD ST City, State,Zip NORTH ANDOVER, Massachusetts 01845 Phone Fax Sales Representative Robert Stewart Email This Purchase and Sale Agreement ("Agreement") is entered into as of the Effective Date entered above by and between Customer and Stryker Sales Corporation,through its Medical division ("Stryker"). RECITALS I. Stryker is engaged in the manufacture and supply of certain medical equipment and accessories technical support services("Products&Services"). II. Customer is a first responder of emergency services which, from time to time require the use of Products&Services supplied by Stryker and Customer intends to acquire these Products &Services from Stryker. III. The parties enter into this Agreement to identify the terms and conditions upon which Stryker will make its Products& Services available to Customer. NOW,THEREFORE, Customer and Stryker agree as follows: 1. Terms of Sale. The purpose of this Agreement is to allow Customer access to Products&Services at discounted pricing, based on Customer's agreement to meet the Conditions set forth in Paragraph 2. 2. Conditions. The offer to purchase extended under this Pricing Agreement is conditioned upon Customer purchasing for Products described in Exhibit A from throughout the Term of this Agreement. 3. Term. This Agreement begins on the Effective Date and will expire on the Expiration Date listed above. Thereafter, and subject to the provisions below headed, "Termination",this Agreement shall automatically renew from month to month for a period of up to three(3)months.This Agreement will then terminate in its entirety, unless extended by mutual agreement of the Parties. 4. Pricing. Stryker extends to Customer an offer to purchase the Products described in Exhibit A and the Services described in Exhibit B-1 at the net prices herein indicated. Not more frequently than annually, Stryker may adjust the prices for Products&Services in an amount not to exceed three percent(3%)of the then-current price. Prices do not include freight insurance,freight forwarding fees,taxes, duties, import or export permit fees,or any other similar charge of any kind applicable to the goods covered by this document. Taxes will be invoiced in addition to the price of the goods covered by this document unless Stryker received a copy of a valid exemption certificate prior to delivery. If the number or configuration of Covered Equipment listed on Exhibit B-2 changes during the Term, pricing shall be pro- rated accordingly. For Inspection Only Service and Repair and Inspect Service, no pricing deduction will be made for removal of Covered Equipment if an inspection has already been performed during the Term. Discounts may not be combined with other special terms, discounts, and/or promotions. 5. Authorized Purchasers. Intentionally omitted. 6. Products. The Products provided under this Agreement are set forth on Exhibit A. 6.1. Payment. Stryker will invoice on shipment. Customer shall pay Stryker's invoice net thirty(30)days from invoice date. 6.2. Minimum Order Quantity. Stryker requires a minimum order of$200.00. 6.3. Shipping and Delivery. Delivery shall be F.O.B. origin. Partial deliveries may be made and partial invoices shall be permitted and shall become due in accordance with the payment terms. In the absence of shipping instructions from the Customer, Stryker will obtain transportation on Customer's behalf and for the Customer's account. Delivery dates are approximate and governed by the provisions in the paragraph entitled "Delays" below. Freight is prepaid by Stryker and added to Customer's invoice. 6.4. Delays. Delivery dates are approximate. Stryker will not be liable for any loss or damage of any kind due to delays in delivery or from non-delivery resulting from an event of Force Majeure. Any such delay shall not be considered a breach by Stryker and Customer's Agreement and delivery dates shall be extended for the length of such delay. 6.5. Inspections. Within 30 days of receipt of a shipment, Customer shall notify Stryker of any claim for Product damage or nonconformity. Stryker, at its sole option and discretion, may repair or replace a Product to bring it into conformity. Return of any Product by Customer shall be governed by the provisions of paragraph entitled "Returned Products" below. Payment of Stryker's invoice is not contingent on immediate correction of nonconformities. 6.6. Returned Product. Stryker will accept the return of any Product under any of the following circumstances: • the Product is shipped in error; • the Product is shipped after the Product's expiration date; • the Product is received by the Customer in a damaged, defective, or nonconforming condition; • Stryker specifically authorizes the return of the Product; or • the Product is recalled and must be removed from the market. Stryker will accept the return of any Product for a full credit if Customer returns the Product to Stryker (a)within 30 working days from the date the Customer receives the Product, or(b)within 30 working days from the date the Customer receives notice of recall, if applicable. Customer acknowledges that Products have varying shelf lives and that certain restrictions and/or restocking charges may apply to Products returned after the applicable 30-day time period. If Customer desires to return a Product, Customer must call its local Stryker representative or Stryker's regional sales office for information on credit or replacement of any purchased and non-expired Product. A Returned Material Authorization (RMA)number will be provided and must be clearly identified on the carton of any returned product. Customer must return the Product to Stryker in its original packaging, unopened, and undamaged, except for Product(s)that are received by in a damaged, defective, or nonconforming condition, which Products may be returned in their existing condition. Stryker will not accept the return of a non-defective and conforming Product if Customer breaks the security seal on the Product. 6.7. Authorized Distributor. Customer may make purchases under this Agreement through an authorized distributor. Should Customer elect to use a distributor to make purchases, Customer shall identify the distributor in writing to Stryker. On the condition that such distributor agrees in writing to: (i)identify on a purchase order or other written document its purchases for Customer; (ii)to ship such Product(s)only to Customer; and (iii)to otherwise accept the terms of this Agreement, Stryker will extend the terms of this Agreement to the distributor. 6.8. No Resale. Customer agrees that Products purchased hereunder will not be resold to third parties or reshipped to any persons or places prohibited by the laws of the United States of America. 7. Services. Pricing of the Services provided under this Agreement are set forth on Exhibit B. Descriptions of the Services provided under this Agreement are set forth on Exhibit B-1. This Agreement covers only the equipment listed on Exhibit B-2 ("Covered Equipment"), as amended and updated upon agreement of the parties. 7.1. Payment. Customer shall pay Stryker's invoice net thirty (30) days from invoice date. 7.2. Loaners. If Covered Equipment must be removed from service to complete repairs, Stryker will provide Customer with a loaner device, if one is available, until the Covered Equipment is returned. Customer assumes complete responsibility for the loaner and shall return the loaner at Customer's expense to Stryker in the same condition as received, upon the earlier of the return of the removed Covered Equipment or Stryker's request. 7.3. Delays. Stryker will not be liable for any loss or damage of any kind due to its failure to perform or delays in its performance resulting from an event of Force Majeure.Any such delay shall not be considered a breach of Stryker's obligations and the performance dates shall be extended for the length of such delay. 7.4. Device Inspection Before Acceptance.All devices that are not under Stryker's Limited Warranty or a current Technical Service Support Agreement must be inspected and repaired (if necessary)to meet original specifications at then-current list prices prior to being covered under a Technical Service Support Agreement. Stryker reserves the right to refuse to support any device that has been remanufactured by a company other than Stryker. 8. Warranty. The following warranties are the only warranties covering any Product or Service provided under this Agreement. 8.1. Product Warranty. Stryker warrants the Products in accordance with its Limited Warranty which is delivered with each Product sold hereunder to which it applies, current edition attached hereto as Exhibit C. Stryker reserves the right to modify this warranty for future purchases. 8.2. Service Warranty. Stryker warrants services performed under this Agreement and replacement parts provided in performing such services against defects in material and workmanship for ninety(90)days from the date a service was performed or a part was provided. Customer's sole remedy shall be reservicing the affected unit and/or replacement of any part determined to be defective,without additional charge, provided Customer notifies Stryker of any allegedly defective condition within ten (10)calendar days of its discovery by the Department. 8.3. STRYKER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED. SPECIFICALLY, AND NOT BY WAY OF LIMITATION, PHYSIO DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 9. Patent Indemnity. Upon receipt of prompt notice from Customer and with Customer's authority and assistance, Stryker agrees to defend, indemnify and hold Customer harmless against any claim that the Stryker Products&Services covered by this Agreement directly infringe any United States Patent. 10. Intellectual Property. Through the purchase of Stryker Products& Services, Customer does not acquire any interest in any tooling, drawings, design information, computer programming, software or firmware, patents, intellectual property, or copyrighted or confidential information related to the Products &Services. Customer expressly agrees not to reverse engineer or decompile Products or related software and information. 11. Confidentiality. Neither parry shall disclose confidential information to any third party without the prior written consent of the other party, except where such disclosure is required by law. 12. Product Training and Support. Stryker will make appropriate training and education available to physicians, nurses and Customer staff regarding the safe and effective use of Stryker's Products as mutually agreed upon by the parties. 13. Independent Parties. The relationship between the parties is that of independent contracting parties. Stryker shall have no power to bind or obligate Customer in any manner. Likewise, Customer shall have no power to bind or obligate Stryker in any manner. 14. Choice of Law. The rights and obligations of Stryker and Customer related to this Agreement shall be governed by the laws of the state where Customer is headquartered. 15. Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate shall be settled by binding arbitration before one arbitrator. At the option of the first to commence an arbitration, the arbitration shall take place the Town of North Andover , and shall be administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. Each party shall bear an equal share of the arbitrator's fee and administrative fees, however, the arbitrator may not award, allocate all or part of the costs of the arbitration, including reasonable attorneys' fees of the substantially prevailing party. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. The provisions of this clause shall survive the expiration or other termination of this Agreement regardless of the cause of termination. 16. Notice. Any notice to be given by either party to the other must be in writing and may be effected either by personal delivery, delivery by an overnight courier with tracking capability or by United States certified mail, return receipt requested, postage prepaid. Notices shall be addressed to the parties at the addresses appearing below, but each party may change its address by written notice to the other. 17. Compliance with Federal and State Confidentiality Laws. Both parties acknowledge their respective obligations under this Agreement to maintain the security and confidentiality of individually identifiable health information and agree to comply with applicable federal and state health information confidentiality laws and regulations. The parties further acknowledge that Stryker may be obligated to Customer to adhere to the business associate requirements of the Standards for Privacy of Individually Identifiable Health Information ("HIPAA Privacy Regulation") published at Title 45 of the United States Code of Federal Regulations parts 160 and 164. 18. Compliance with Laws. The parties agree to comply with their respective obligations under federal, state or other applicable laws or regulations and to properly report the value of any discount or rebate earned or received hereunder, if required. 19. New Technology Pricing. As mandated by federal laws and regulations, Stryker does not promote products and/or therapies that have not been approved by the U. S. Food and Drug Administration. Upon commercial release of a new product, Stryker will negotiate with Customer regarding the price for the new product and the addition of the new product to this Agreement or an amendment hereto. 20. Contract Reference. Orders placed under this Agreement shall make reference to the Contract Number above. 21. Assignment. This Agreement and the rights, duties and responsibilities of the parties shall not be assigned to a third party without the prior express written consent of the other, except that Stryker may assign this Agreement without such consent to any person, firm or corporation succeeding to its business and also to any parent, subsidiary or affiliated company of Stryker. 22. Limitation of Liability. Neither party shall be liable to the other party for special, punitive, incidental, consequential or indirect damages in connection with this Agreement or performance hereunder. 23. Force Maieure. Neither party shall be liable to the other party in respect of any delay or failure to perform that results from any event or cause that is beyond the reasonable control of the party obligated to perform including but not limited to, acts of God, labor disputes,the requirements of any governmental authority, war, civil unrest, terrorist acts, delays in manufacture, obtaining any required license or permit,and Stryker's inability to obtain goods from its usual sources. 24. Severability. If any one or more of the provisions of this Agreement shall for any reason be held illegal or invalid, such illegality or invalidity shall not affect the other provisions of this Agreement, which shall remain in full force and effect. 25. Authority. The parties represent that they have the authority to enter into this agreement. The parties further represent that the terms of this agreement are not inconsistent with any other contractual obligations, express or implied, that they may have. 26. Entire Agreement. Stryker agrees to furnish the Products &Services ordered by Customer subject to the terms of this Agreement which reflect the complete agreement between Stryker and Customer regarding the subject of this Agreement and supersede all of the negotiations, understandings, and representations (if any) made by the parties. None of the terms and provisions of this Agreement may be amended, supplemented, waived or changed orally or by terms contained in any purchase order or other documents submitted by Customer, but only by writing signed by each of the parties. 27. Non-waiver. The failure by one party to take action or to require performance of any provision of this Agreement shall not affect that party's right to take such action or to require such performance at any time thereafter. A waiver of any breach or default of this Agreement shall not constitute a waiver of any subsequent breach or default 28. Construction of Agreement. Each party represents that it has had an opportunity to negotiate and cooperate in the drafting and preparation of this Agreement and no principles of construction shall be applied against either party on the basis that such party drafted this Agreement. 29. Termination. Upon written notice, either party may terminate this Agreement upon the occurrence of any of the following events: • A material breach of one or more terms of the Agreement by the other Party, and the failure of the breaching party to cure the breach within 30 days of written notice of the breach; • The insolvency or bankruptcy of the other party; • Thirty(30)days prior written notice to the other party. In the event of such early termination of Services, Customer shall be responsible for the portion of the designated price which corresponds to the portion of the Term prior to the effective date of termination and the cost of any Services rendered during the Term. 30. Signatures. This Agreement may be executed in multiple originals, each of which shall be deemed an original hereof, and all of which constitute one and the same agreement. This Agreement is also valid if signatures are exchanged by facsimile or electronic mail. IN WITNESS WHEREOF, the parties hereby indicate their agreement to the terms of this Purchase and Sale Agreement by the signatures of their authorized representatives. Stryker Sales Corporation, through NORTH ANDOVER POLICE DEPARTMENT its Medical division gc By. By. Name: Kimberly Plested Name: Title: Contracts Administrator Title Melissa Murphy-Rodrigues, esq. TOWN MANAGER Date: 8/12/2020 Date: Return to: Stryker Emergency Care ' Attn: Contracts Department MS 12S •- 11811 Willows Road NE P.O.Box 97023 �~� Redmond,WA 98073-9723 4()iA1Y}Y^— Fax: (425)867-4970 On execution,please scan and return to lJ,;( „(rayw,i ti,try, or. rr�; Thank you. EXHIBIT A PRODUCT PRICING Stryker extends to Customer and to any Facilities identified in Exhibit D the following Net Prices on the Products indicated: Equipment Products: e 4* 9ty son Wk* TOW 1.0 99425-000023 LIFEPAK 1000 Graphical Dispday w/Carrying Case. Incl at 27 $1,995,00 $53,865.00 N/C: Battery((11141-00015fi ,Carryln Case Strap �11425 000012)and QUIK-C MIB�7 REE I-PAK Electrodes 2 pair per unit) (11996-000017) 2.0 41425-000034 Ship Kit-Literature,LP1000,VW RCHG, English 27 $0.00 $0.00 3.0 11101-000016 Infant/Child Reduced Energy Defibrillation Electrode 30 $73.80 $2,214.00 Replacement 4.0 99996-000117 LP1000 Trainer 1 $636.00 $636.00 Equipment Total: $56,715.00 EXHIBIT B PRICING FOR SERVICES Intentionally left blank EXHIBIT B-1 DESCRIPTION OF SERVICES Intentionally left blank EXHIBIT B-2 COVERED EQUIPMENT Intentionally left blank EXHIBIT C LIMITED WARRANTY Limited warranty S/ Lati Subject to the limitations and exclusions set forth below,the following Stryker products which are purchased from authorized Stryker representatives or authorized resellers for use in the United States of America,Latin America and South America and are used in accordance with their instructions,will be free from defects in material and workmanship appearing under normal service and use as defined below. * LIFEPAKCR2 defibrillator LIFEPAK CW Plus automated external defibrillator and rn * HeartSine"sarnaritan'PAD automated external defibrillators to al battery system F,f ive years • LIFEPAK 15 monitor/defibrillator,used in clinic and hospital * LIFEPAK 1000 defibrillators settings exclusively(with no use in mobile applications) - LIFEPAK EXPRESS"automated external defibrillator • LIFEPAK 20/20e defibri.11ator/monitor and internal battery system Two years • CodeManagenient Module' LIFEPAIC 1000 trainer • LIFEPAK 15 monitor/defibrillator Battery charging systems and power adapters • LUCAS'Chest Compression System Batteries and battery paks, excluding CHARGE-PAX" • LIFEPAK 500T trainer Charging Unit • LIFEPAK -T trainer Masirno SET'Rainbow"reusable sensors CR • Internal Battery System for LIFEPAK 20/20e TrueCPR­ Coaching Device Im"I • Masirno'cables and Masimo SET SP02 sensors • CHARGE-PAK Charging Unit • Installed repair parts • LIFEPAK 15 monitor/defibrillator ACLS Training Device All other product accessories • LIFEPAK 20/20e defibrillator/monitor ACLS Training Device Limited warranty time limits begin on the date of delivery to the First Owner." Stryker warrants neither error-free nor interruption-free performance.The sole and exclusive remedy of the First Owner under this Limited Warranty is repair or replacement of defective material or workmanship at the option of Stryker. To qualify for the repair or replacement,the product must have been continuously owned by the First Owner and not have been repaired or altered outside of an authorized Stryker factory in any way which,in the judgment of Stryker,affects its stability and reliability.The product must have been used in accordance with applicable operating instructions and in the intended environment or setting. The product must not have been subjected to misuse,abuse or accident. Stryker,in its sole discretion,will determine whether warranty service on the product will be performed in the field or through ship-in repair.For field repair,this warranty service will be provided by Stryker at the purchaser's facility or an authorized Stryker facility during normal business hours. For ship-in repair, all products and/or assemblies requiring warranty service should be returned to a location designated by Stryker,freight prepaid,and must be accompanied by a written, detailed explanation of the claimed failure.Products repaired or replaced under this warranty retain the remainder of the warranty period of the repaired or replaced Product. Except for the Limited Warranty provided above,STRYXER MAKES NO WARRANTY,EXPRESS OR IMPLIED, INCLUDING,BUT NOT LIMITED TO,ANY IMPIIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,WHETHER ARISING FROM STATOTF,COMMON LAW,CUSTOMER OR OTHERWE9L THIS LIMITED WARRANTY SHALL BE THE EXCLUSIVE REMEDY AVAILABLE TO ANY PERSON. STRYKER IS NOT LIABLE FOR INDIRECT,SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES(INCLUDING LOSS OF BUSINESS OR PROFITS)WHETHER BASED ON CONTRACT,TORT,OR ANY OTHER LEGAL THEORY. Products are warranted in conformance with applicable laws.If any part or term of this Limited Warranty is held to be illegal,unenforceable or in conflict with applicable law by any court of competent jurisdiction,the validity of the remaining portions of the Limited Warranty shall not be affected,and all rights and obligations shall be construed and enforced as if this Limited Warranty did not contain the particular part or term held to be invalid. Some geographies,including certain US states, do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.This Limited Warranty gives the user specific legal rights.The user may also have other rights which vary from state to state or country to country. •First Owner means the first purchaser or lessee of the products listed above,directly from Stryker,through a Stryker corporate affiliate,or from an authorized Stryker reseller,and includes the purchaser's corporate affiliates. For further information,please contact Stryker at 800.442.1142(U.&),or visit our website at strykeremergencycare.com Emergency Care products may not be available in all markets because product availability is subject to the regulatory and/or medical practices in individual markets.Please contact your representative if you have questions about the availability of Stryker's products in your area.Stryker or its affiliated entities own,use,or have applied for the following trademarks or service marks:CHARGE-PAX,CodeManagement Module,LIFEPAK,LIFEPAK CR,LIFEPAX EXPRESS, LUCAS,TrueCPR,Stryker.Masimo,the Radical logo,Rainbow and SET are registered trademarks of Masimo Corporation.All other trademarks are trademarks of their respective owners or holders. The absence of a product,feature,or service name,or logo from this list does not constitute a waiver of Stryker s trademark or other intellectual property rights concerning that name or logo. GDR 3315920_G Copyright©2019 Stryker Shykw 11611 Willows Road NE Redmond,WA 96052 Toll free 600 442 1142 strykeremergencycar e.c om Stryker Canada 2 Medicorum Place Waterdown,Ontario L8B 1W2 Canada Toll free 800 668 8323 Purchase&Sale Agreement Stryker Medical, a Division of Stryker Sales Corporation Product Warranty The Products are warranted free from manufacturing and material defects for a period of one year, unless otherwise stated per product,after delivery of same.Any Products that become defective during this period shall be repaired or replaced,such determination being at Customer's sole discretion.All warranties hereunder are made subject to the proper use by Customer in the application for which such Products were intended.The warranty provided hereunder does not cover any Products(i) that have been misused,modified,refurbished or repaired without the prior consent of Stryker,(ii)that have been subjected to unusual stress or have not been properly maintained or(iii)on which any original serial numbers or other identification marks have been removed or destroyed. In any event, Stryker's liability shall be limited to the replacement value of any damaged or defective part. THE EXPRESS WARRANTY SET FORTH IN THIS SECTION IS THE ONLY WARRANTY APPLICABLE TO THE PRODUCTS SOLD SUBJECT TO THIS AGREEMENT AND IS EXPRESSLY IN LIEU OF ANY OTHER WARRANTY BY STRYKER EXPRESSED OR IMPLIED,INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Power-LOAD Warranty 6390 • One year parts,labor&travel • Lifetime on all welds Performance-LOAD Warranty 6392 • One year parts,labor&travel • Lifetime on all welds Power-PRO Warranty 6506&6516 • Two year parts,labor&travel • one-year soft goods • Three-year X-frame components • Three-year limited powertrain • One year SMRT Battery • Two Year SMRT Battery Charger • Lifetime on all welds Performance-PRO Warranty 6086 • One year parts,labor&travel • One-year soft goods • Three-year X-frame components • Lifetime on all welds Stair-PRO Warranty 6252 • One year parts,labor&travel • One-year soft goods • Lifetime on all welds NIX-PRO Warranty 6082 • One year parts,labor&travel • One-year soft goods • Lifetime on all welds MX-PRO Bariatric Warranty 6083 • One year parts,labor&travel • One-year soft goods • Lifetime on all welds Evacuation Chair Warranty 6254 • 15 year warranty Antler Fastener/Floor or Wall Mount Warranty 6370/6373 • One year parts,labor&travel Purchase&Sale Agreement 05.2019 • Internal paddles and internal paddle handles .......... ................................................. EXHIBIT D AFFILIATED FACILITIES/AUTHORIZED PURCHASERS Facilities St ker Customer Number Purchase&Sale Agreement 05.2019