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FINAL-Everett (WA)-SYK Std TOS wProCare Terms (3-20-2024) Page 4 of 5
<br />3.4. Survival of Certain Provisions. The provisions of Term and Termination, Confidentiality, Non Solicitation and Non Hire, Limitations
<br />of Liability, Changes, and Assignment will survive the expiration or termination of this Agreement and will be binding to the
<br />respective successors, assigns, subsidiaries or affiliates of the Parties.
<br />4.Product Maintenance. The Service Plan is ancillary to and not a complete substitute for the requirements of Customer to adhere to
<br />the routine maintenance instructions provided by Stryker, its equipment and operations manuals, and accompanying labels and/o r
<br />inserts for each item of Equipment. Customer covenants and agrees that its appropriate user personnel will follow the instructions and
<br />contents of those manuals, labels and inserts.
<br />5.Warranty; Limitations of Warranty and Liability (Services). During the Term, Stryker warrants, with the exception of software
<br />maintenance services which, if applicable, will be as specified in the Service Plan, the following:
<br />5.1. Stryker has the experience, capability and resources to perform under the Service Plan, and Stryker further represents and warrants
<br />that the Services will be performed in a workmanlike manner and with professional diligence and skill;
<br />5.2. Services will comply with all applicable laws and regulations and all applicable standards set forth by law or ordinance or
<br />established by the rules and regulations of any federal, state or local agency, department, commission, association or pertin ent
<br />governing, accrediting or advisory body, including The Joint Commission having authority to set standards for healthcare facilities;
<br />5.3. If the Services are to be performed on Customer’s premises, Stryker represents and warrants that Stryker will comply with all
<br />applicable safety laws and Customer’s then current safety and other applicable regulations, all human resource policies and health
<br />and drug and alcohol screening policies; provided that Customer has provided advance written notification of such rules,
<br />regulations and policies to Stryker;
<br />5.4. Stryker currently has, or prior to the commencement thereof, will obtain, pay for, and maintain any and all licenses, fees, and
<br />qualifications required to perform the Services.
<br />5.5. Stryker will maintain the Equipment in good working condition. Equipment and Equipment components repaired or replaced under
<br />this Service Plan continue to be warranted as described herein during the Term. When Equipment or component is replaced, the
<br />item provided in replacement will be the customer’s property and the replaced item will be Stryker’s property. If a refund is
<br />provided by Stryker, the Equipment for which the refund is provided must be returned to Stryker and will become Stryker’s
<br />property.
<br />5.6. TO THE FULLEST EXTENT PERMITTED BY LAW, THE EXPRESS WARRANTIES SET FORTH HEREIN ARE THE ONLY WARRANTIES
<br />APPLICABLE TO THE SERVICES AND ARE EXPRESSLY IN LIEU OF ANY OTHER WARRANTY BY STRYKER, AND STRYKER HEREBY
<br />EXPRESSLY DISCLAIMS ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES REGARDING THE SERVICES, INCLUDING, BUT
<br />NOT LIMITED TO, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. IN NO INSTANCE WILL
<br />STRYKER BE LIABLE TO CUSTOMER FOR INCIDENTAL, PUNITIVE, SPECIAL, COVER, EXEMPLARY, MULTIPLIED OR
<br />CONSEQUENTIAL DAMAGES OR ATTORNEYS’ FEES OR COSTS.
<br />6.Limitations and Exclusions from Service Plan . Customer will use commercially reasonable efforts to cooperate with Stryker in
<br />connection with Stryker’s performance of the Services. Customer understands and acknowledges that Stryker ProCare employees w ill not
<br />provide surgical or medical advice, will not practice surgery or medicine, will not be involved in any manner which may be construed as
<br />practicing surgery or medicine, will not come in contact with the patient, will not enter the “sterile field” at any t ime, and will not direct
<br />equipment or instruments that come in contact with the patient during surgery. Customer’s personnel will refrain from request ing Stryker
<br />employees to take any actions in violation of these requirements or in violation of applicable laws, rules or regulations, Cu stomer policies,
<br />or the patient’s informed consent. A refusal by Stryker employees to engage in such activities will not be a breach of this Agreement.
<br />Customer consents to the presence of Stryker employees in its operating rooms, where applicable, in order for Stryker to provide Services
<br />under this Agreement and represents that it will obtain all necessary consents from patients for such presence during surgery .
<br />Notwithstanding any other provision set forth herein, the Service Plan does not cover the following, as determined by Stryker in its sole
<br />discretion:(i) abnormal wear or damage caused by reckless or intentional misconduct, abuse, neglect or failure to perform nor mal and
<br />routine maintenance as set out in the applicable maintenance manual or operating instructions provided with the Equipment; (i i)
<br />accidents, catastrophe, fire, flood or act(s) of God; (iii) damage resulting from faulty maintenance, improper storage, repai r, handling or
<br />use, damage and/or alteration by non-Stryker authorized personnel; (iv) service necessary due to the failure of the Customer or anyone
<br />under its control to comply with written instructions or recommendations; (v) equipment on which any original serial numbers or other
<br />identification marks have been removed or destroyed; (vi) damage caused as a result of the use of the Equipment beyond the useful life,
<br />if any, specified for such equipment in the user manual; (vii) service Stryker cannot perform because the Equipment has been
<br />discontinued or its parts have been discontinued or made obsolete; (viii) service to the Equipment if the Equipment or the Equipment
<br />site is contaminated with blood or other potentially infectious substances; or (ix) equipment that has been repaired with any
<br />unauthorized or non-Stryker components. In addition, in order to ensure safe operation of the Equipment, only Stryker accessories should
<br />be used. Stryker reserves the right to invalidate a Service Plan and any complimentary loaner programs thereunder if Equipment is used
<br />with accessories not manufactured by Stryker. If, at any time, upon inspection of the Equipment in service, Stryker deems any single unit
<br />of Equipment to be unserviceable, a record and report of such will be made, and provided to the Customer in writing on the date of service.
<br />7.Indemnification (Services). Intentionally Omitted by Mutual Agreement of the Parties
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