PAID TO VTAL FOR THE APPLIANCE HEREUNDER,
LESS A REASONABLE VALUE FOR USE DETERMINED BY PRORATING THE LICENSE FEE PAID ON
A THIRTY-SIX (36) MONTH STRAIGHT-LINE DEPRECIATION METHOD FROM THE INSTALLATION
DATE.
IF NO SUCH RETURN IS REQUIRED WITHIN THIRTY-SIX (36) MONTHS OF THE
INSTALLATION DATE, NO PART OF SUCH COST WILL BE REFUNDED.
EZEM SHALL PROVIDE A
LIKE REFUND TO ITS CUSTOMERS.
(C)
INSPECTIONS.
VTAL WILL NOTIFY EZEM WITHIN TWO (2) BUSINESS DAYS
OF THE COMPLETION OF ANY INSPECTION ACTIVITY DIRECTED AT THE APPLIANCE BY ANY
REGULATORY AUTHORITY, INCLUDING WITHOUT LIMITATION THE FDA, AND SHALL PROMPTLY
PROVIDE EZEM WITH THE RESULTS THEREFROM, INCLUDING WITHOUT LIMITATION ANY FDA
FORM 483 OR WARNING LETTERS.
11.
WARRANTIES AND REPRESENTATIONS; INDEMNIFICATION; INSURANCE
11.1.
APPLIANCE WARRANTIES TO CUSTOMERS.
VTAL WARRANTIES WITH RESPECT TO
THE APPLIANCE SHALL ARISE ONLY UNDER THE END USER AGREEMENT.
EZEM SHALL IN NO
EVENT MAKE ANY OTHER WARRANTIES WITH RESPECT TO AN APPLIANCE, WHETHER ON BEHALF
OF VTAL OR ON BEHALF OF EZEM TO ANY THIRD PARTY.
11.2.
EXCLUDED CLAIMS.
WITHOUT LIMITING SECTION 11.1, VTAL SHALL HAVE NO
OBLIGATION TO EZEM OR EZEM'S CUSTOMERS UNDER
SECTION 11.1 ABOVE IF:
(A)
IF THE APPLIANCE HAS NOT BEEN PROPERLY INSTALLED BY A PERSON OTHER
THAN VTAL OR RETAINED BY VTAL, OR NOT USED OR MAINTAINED IN ACCORDANCE WITH
VTAL'S THEN-APPLICABLE OPERATING MANUALS OR SOFTWARE MAINTENANCE ARRANGEMENT;
(B)
THE APPLIANCE HAS BEEN MODIFIED IN ANY MANNER OR IS USED OR
COMBINED WITH OTHER COMPUTER SOFTWARE PROGRAMS, HARDWARE OR DATA (I) NOT
SUPPLIED BY VTAL, (II) NOT SUPPLIED IN ACCORDANCE HEREWITH OR (III) SUPPLIED
WITHOUT THE PRIOR WRITTEN CONSENT OF VTAL; OR
(C)
THE APPLIANCE HAS BEEN DISTRIBUTED TO A CUSTOMER WITH ANY
WARRANTIES OR REPRESENTATIONS, ORAL OR WRITTEN, MADE BY EZEM OR ANY THIRD PARTY
BEYOND THOSE EXPRESSLY SET FORTH IN THE END USER AGREEMENT.
11.3.
WARRANTY TO EZEM.
VTAL HEREBY REPRESENTS AND WARRANTS TO EZEM:
(A)
VTAL OWNS OR HAS THE LAWFUL RIGHT FROM OTHERS TO GRANT THE RIGHTS
TO MARKET AND DISTRIBUTE THE APPLIANCE AS SET FORTH IN THIS AGREEMENT;
(B)
VTAL HAS NO KNOWLEDGE OF ANY INFRINGEMENT BY THE APPLIANCE OF ANY
THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, SUCH AS PATENTS, COPYRIGHTS, TRADE
SECRETS OR TRADEMARKS; AND
(C)
VTAL HAS TAKEN ALL APPROPRIATE CORPORATE ACTION TO AUTHORIZE
EXECUTION AND PERFORMANCE OF THIS AGREEMENT.
11.4.
LIMITED WARRANTY.
THE WARRANTIES TO THE CUSTOMER SET FORTH IN THE
END USER AGREEMENT AND THE WARRANTIES TO EZEM SET FORTH IN SECTION 11.3 ABOVE
ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ALL SUCH OTHER
WARRANTIES BEING HEREBY DISCLAIMED AND EXCLUDED BY VTAL, INCLUDING WITHOUT
LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
USE, AND ALL OBLIGATIONS OR LIABILITIES ON THE PART OF VTAL FOR DAMAGES ARISING
OUT OF OR IN CONNECTION WITH THE DISTRIBUTION, USE, REPAIR OR PERFORMANCE OF THE
APPLIANCE.
11.5.
INDEMNIFICATION.
VTAL AND EZEM SHALL EACH DEFEND, INDEMNIFY AND
HOLD ONE ANOTHER, THEIR AGENTS, EMPLOYEES AND INDEPENDENT CONTRACTORS HARMLESS
FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSS