- Home
- Partnership Support Agreement Technical Services General Conditions
Partnership Support Agreement Technical Services General Conditions
Part A
1. INTERPRETATION
1.1 Throughout this Agreement:
1.2 Agreement: means the Partnership Support Agreement between the Customer and Baxter comprised of the Customer Details, Schedules 1 and 2 and these General Conditions;
1.3 Business Day: means Monday to Friday excluding public holidays;
1.4 CPI: means the Consumer Prices Index as published in Australia by the Bureau of Statistics or any other body responsible for publishing such Index;
1.5 Equipment: means the Equipment specified in Schedule 1;
1.6 Intellectual Property Rights: means all patents, rights to inventions, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in designs, rights in computer software, database right, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
1.7 Customer Details: means the section of this Agreement entitled ‘Customer Details’;
1.8 Services: means the Equipment support services to be provided by Baxter under this Agreement as specified in the Customer Details and set out in Schedule 1 together with any other services (“Additional Services”) which Baxter provides or agrees to provide to the Customer;
1.9 GST: means goods and services tax chargeable under Australian law for the time being and any similar additional tax.
1.10 In this Agreement a reference to Baxter or any other person will be construed so as to include its respective successors and permitted transferees and assigns and any person it may amalgamate with.
1.11 In this Agreement where appropriate, words denoting the masculine gender include the feminine and neuter genders and vice versa; words denoting a singular number include the plural and vice versa; references to ‘the’ include ‘a/an’ and vice versa; references to persons shall include firms, companies and other organisations and vice versa; reference to a statutory provision includes a reference to the same as modified, re-enacted or both from time to time before or after the date of this Agreement and any subordinate legislation made under the same before or after the date of this Agreement; headings shall not affect interpretation and words such as “include” or “including” are to be construed without limiting the generality of the preceding words.
1.12 A reference to writing or written includes faxes but not e-mail.
2. BAXTER’S OBLIGATIONS
2.1 Baxter shall:
2.1.1 use reasonable endeavours to provide the Services to the Customer in accordance to all material respects within Schedule 2;
2.1.2 use reasonable endeavours to meet any dates specified for performance of any parts of the Services. Such dates shall be estimates only and time of performance shall not be of the essence;
2.1.3 provide the Services in a good and workmanlike manner and in accordance with the generally accepted professional and technical standards for the same type of services being provided; and
2.1.4 use reasonable endeavours to observe all health and safety rules and regulations and any other reasonable security requirements that apply at the Customer's premises and that Baxter has been informed of under condition 3.1.3. Baxter will not be liable under the Agreement if, as a result of complying with any such requirements, it is in breach of its obligations under the Agreement.
3. CUSTOMER'S OBLIGATIONS
3.1 The Customer will:
3.1.1 co-operate with Baxter in all matters relating to the Services;
3.1.2 ensure that any Equipment scheduled for maintenance or repair is available for the Baxter Service Engineer to carry out the work at the scheduled time and ,where required, provide reasonable effort to have Equipment staged for servicing in a fit for purpose environment
3.1.3 provide, for Baxter and its service staff promptly and at no charge, free access to the Equipment and to the Customer's premises, office accommodation, information, data and facilities as required by Baxter for the performance of the Services;
3.1.4 inform Baxter of all health and safety rules and regulations and any other reasonable security requirements that apply at the Customer's premises;
3.1.5 maintain environmental conditions within the Equipment manufacturer’s recommended range and otherwise observe the Equipment manufacturer’s operating instructions;
3.1.6 not permit a third party to install, alter, adjust, maintain or interfere with the Equipment without Baxter’s prior consent;
3.1.7 have a Customer staff member in the vicinity while after hours work is being performed, if required by Baxter;
3.1.8 make available a Customer named representative during each service visit who will sign a service report confirming that the work has been done. A copy of the service report will be given to the Customer named representative;
3.1.9 ensure that Equipment is cleaned and decontaminated in line with clinical standards and to the reasonable satisfaction of Baxter’s engineer before each service or repair; and
3.1.10 provide adequate safe working facilities to the Baxter’s Service Engineer, including supply of mains electricity, working space, adequate ventilation, water and other normal supply facilities required for the operation of the Equipment.
3.2 The Customer will ensure that all information it provides to Baxter in connection with the Agreement, whether under condition 3.1 or otherwise, is complete, true and accurate.
4. CHANGE CONTROL
4.1 If either party wishes to change the scope or execution of the Services, it must submit details of the requested change to the other in writing. If either party requests a change to the scope or execution of the Services, Baxter will, within a reasonable time, provide a written estimate to the Customer of:
4.1.1 the likely time required to implement the change;
4.1.2 any variations to Baxter's charges arising from the change; and
4.1.3 any other impact of the change on the terms of the Agreement.
4.2 If the Customer wishes Baxter to proceed with the change, Baxter has no obligation to do so unless the parties have agreed in writing on the necessary variations to its charges and any other relevant terms of the Agreement to take account of the change. Baxter will not be required to reduce its charges if for any reason the Customer’s services requirements cease in respect of any item(s) of Equipment.
4.3 Baxter may, from time to time and without notice, change the Services in order to comply with any applicable safety, best practice or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.
5. CHARGES AND PAYMENT
5.1 The charges payable for the Services are set out in the Customer Details, calculated in accordance with Schedule 1.
5.2 All charges and costs quoted to the Customer are exclusive of GST which if applicable Baxter shall add to its invoices at the appropriate rate.
5.3 Baxter will invoice the Customer for any Additional Services on or before completion of the services.
5.4 The Customer shall pay each invoice submitted to it by Baxter, in full without set-off or deduction and in cleared funds, within 30 days of the date of the invoice.
5.5 Aside from any other right or remedy that Baxter may have:
5.5.1 where the Customer fails to pay Baxter on the due date, Baxter may charge interest on such sum from the due date for payment at the annual rate of 3% above the base lending rate from time to time of the Reserve Bank of Australia, accruing on a daily basis and being compounded quarterly until payment is made.
5.5.2 Baxter may in its discretion immediately suspend provision of the Services or on 7 days notice terminate this Agreement if at any time any sum due to it remains unpaid after the due date; and
5.5.3 all sums payable to Baxter under this Agreement including charges for the unexpired term of the Agreement are due and payable immediately on termination for any reason whatsoever.
5.6 Subject to clause 5.7, if the parties have agreed a fixed term exceeding one year, the Fees shall be varied as follows:
5.6.1 at a time no later than 2 [two] months before each anniversary of the commencement date, Baxter shall inform the Customer of the new prices which will apply in the following year (“New Yearly Fees”).
5.6.2 The calculation of the New Yearly Fees will be based upon an increment of the previous yearly fee in line with CPI. The base figure for CPI will be taken as that figure published just prior to the Agreement Start Date and its subsequent anniversaries.
5.6.3 if the Customer responds to Baxter and accepts the New Yearly Fees within [three] weeks of their receipt then Baxter shall fix the New Yearly Fees offered under clause 5.6.1 above to the following year. If the Customer does not accept the New Yearly Fees within the time stated under this clause 5.6.2 then Baxter may, at its sole discretion, increase the New Yearly Fees for the following year in accordance with any relevant changes in Baxter’s costs which the Customer acknowledges may result in a greater change than acceptance of the proposed fees.
5.7 If the Customer wishes to pay the Fees for the full term of the fixed period and if Baxter in its sole discretion agrees, Customer shall pay such Fees as a lump sum to Baxter in advance of commencement of this Agreement. Any such payment shall be based on the Fees set in the first year and shall be a multiple of such Fees equivalent to the number of years of the fixed term.
5.8 Equipment faults or malfunctions do not entitle the Customer to reduce or withhold due payment to Baxter.
6. CONFIDENTIALITY AND BAXTER'S PROPERTY
6.1 The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are confidential in nature and have been disclosed to the Customer by Baxter, its employees, agents or sub-contractors and any other confidential information concerning Baxter's business or its products which the Customer may obtain. The Customer may only disclose such confidential material to those of its employees, agents or sub-contractors who need to know the information for the purpose of fulfilling the Customer's obligations to Baxter, and will ensure that such employees, agents or sub-contractors are subject to the same obligations of confidentiality.
6.2 All materials, Equipment and tools, drawings, specifications and data supplied by Baxter to the Customer shall, at all times, be and remain as between Baxter and the Customer the exclusive property of Baxter, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to Baxter, and shall not be disposed of or used other than in accordance with Baxter's written instructions or authorisation.
6.3 As between the Customer and Baxter, all Intellectual Property Rights and all other rights in any material provided by Baxter under or in connection with this Agreement Baxter materials are and shall remain the property of Baxter.
6.4 The provisions of this condition 6 will survive any termination of the Agreement and any of the arrangements contemplated hereunder.
7. OWNERSHIP OF REMOVED PARTS
7.1 All parts and items of Equipment removed by, or replaced with parts supplied by, Baxter under this Agreement will become Baxter’s property. Many parts can be remanufactured by the original manufacturer or investigated for cause of failure.
7.2 Where spare parts are supplied by Baxter as replacement parts but not fitted by Baxter, the Customer must:
7.2.1 notify Baxter of receipt of the replacement part; and
7.2.2 return the removed part within 28 days of receipt of the replacement part.
7.3 If Baxter does not receive the removed part within 28 days Baxter may regardless of the support plan level, in its sole discretion, invoice Customer for such part. The price of any such parts shall be charged at Baxter’s current standard price.
8. BAXTER’S LIABILITY
8.1 This condition 8 sets out the entire financial liability of Baxter (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer arising out of or in connection with this Agreement and the provision or failure to provide the Services, including any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
8.2 Except as expressly set out in this Agreement all warranties, conditions and other terms implied by statute or common law including those relating to quality and fitness for purpose are, to the fullest extent permitted by law, excluded from the Agreement.
8.3 Nothing in this Agreement limits or excludes the liability of Baxter:
8.3.1 for death or personal injury resulting from negligence; or
8.3.2 for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by Baxter.
8.4 Subject to condition 8.3 Baxter hereby excludes to the fullest extent permitted by law any liability for:
8.4.1 loss of profits; or
8.4.2 loss of business; or
8.4.3 depletion of goodwill and/or similar losses; or
8.4.4 loss of anticipated savings; or
8.4.5 loss of goods; or
8.4.6 loss of contract; or
8.4.7 loss of use; or
8.4.8 loss or corruption of data or information; or
8.4.9 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
8.5 Where Baxter is liable to the Customer, despite the other provisions of condition 8 above Baxter limits its liability, to the fullest extent permitted by law, to the re-performance of the relevant Services, which where applicable includes the re-supply of parts.
8.6 Without prejudice to condition 8.5 Baxter's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Services or otherwise in connection with this Agreement shall be limited to the charges actually paid by the Customer for the Services.
8.7 Baxter shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from delay or non-performance of any of Baxter’s obligations which has been caused either directly or indirectly as a result of any act or omission of the Customer, its agents, sub contractors or employees.
8.8 Baxter may rely on all information provided by the Customer in connection with the Agreement without checking or verifying it first unless any inaccuracies or errors in that information would have been and were immediately obvious following a simple visual inspection. Baxter will not be liable for any losses incurred by the Customer or any third party arising from any reliance on such information by Baxter.
9. INDEMNITY
9.1 The Customer shall be liable for, and shall on demand indemnify and keep fully and effectively indemnified Baxter and each of its Group companies against any expense, liability, loss, claim or proceedings and actions suffered or sustained by such company as a consequence of or in connection with:
9.1.1 personal injury to or the death of any person arising out of or in connection with this Agreement, unless such death or personal injury arises as a result of the negligence or default of Baxter;
9.1.2 or any damage or loss to property whether real or personal, in each case arising out of or in connection with this Agreement, unless injury or damage arises as a result of any negligence or default of Baxter; or
9.1.3 the Customers fraud, negligence, failure to perform or delay in performance of any of its obligations under this Agreement or any act default or omission of the Customer.
10. TERMINATION
10.1 In addition to any other rights or remedies which the parties may have, either party may terminate the Agreement without liability to the other immediately on giving written notice to the other if the other party enters into and/or applies for, and/or calls a meeting of members and/or creditors with a view to one or more of a moratorium, administration, liquidation (of any kind), including provisional or composition and/or arrangement (whether under deed or otherwise) with creditors and/or has any of its property subjected to one or more of appointment of a receiver (of any kind), enforcement of security, distress or execution of a judgement (in each case including similar events under the laws of other countries).
10.2 In addition to any other rights or remedies which Baxter may have, Baxter may terminate the Agreement on 14 days’ written notice, without liability, if the Customer is in material breach of its obligations or persistent breach which as a result of repetition becomes material under the Agreement and (in the case of a breach capable of remedy) shall fail to remedy that breach, or (in the case of a persistent breach) shall fail to remedy the causes of such breach within 30 days of notice being given to the defaulting party by the innocent party of the intention of the innocent party to exercise its right of termination hereunder.
10.3 On termination of the Agreement for any reason:
10.3.1 the Customer will immediately pay Baxter any unpaid charges and, where Services have been supplied but no invoice has been submitted, Baxter may submit an invoice, which must be paid immediately on receipt; and
10.3.2 the accrued rights of the parties as at termination and the continuation of any provision expressly stated or implicitly intended to survive termination, will not be affected.
11. FORCE MAJEURE
11.1 Neither party shall be liable for any delay in or failure of performance under this Agreement due to any circumstances beyond its reasonable control (“Force Majeure”), which shall be deemed to include, but not be limited to the following: act of God; war; civil commotion; sabotage; explosion; fire; accident; embargo; judicial judgements or laws PROVIDED THAT the party claiming Force Majeure notifies the other party of the nature of the delay and the action being taken to remedy the delay. Any period of time specified in this Agreement for performance shall (subject to compliance with the foregoing proviso) be extended by the period of Force Majeure.
11.2 Either party may terminate the Agreement by written notice if a Force Majeure event affecting the other party continues and has continued for more than 90 days.
12. GENERAL
12.1 No addition to or modification of any provision of the Agreement or waiver of any rights under the Agreement shall be binding upon a party unless made in writing and signed by an authorised signatory on behalf of such party.
12.2 No failure or delay in exercising any right of termination or other right or remedy under this Agreement will amount to a waiver of that right. No waiver by either party of any breach of the Agreement by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
12.3 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
12.4 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.
12.5 This Agreement constitutes the entire agreement between the parties in relation to its subject matter and no other terms shall apply to it. The terms of the Agreement supersede all previous agreements, representations or purchase orders and shall prevail over any inconsistent terms implied by law or by trade custom, practice or course of dealing and any such inconsistent terms are hereby expressly excluded. Neither party will have any remedy in respect of any untrue statement, unless made fraudulently, upon which it relied in entering into the Agreement.
12.6 Neither party shall be entitled to assign or otherwise transfer this Agreement or any of its rights or obligations under it, provided that Baxter may assign the benefit of this Agreement or any part of it to any of its Group companies or to any third party.
12.7 Nothing in this Agreement is intended to, or operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
13. NOTICES
13.1 Any notice given under the Agreement must be in writing and may be given either personally or by express post or facsimile addressed to the other party at the address set out in the Customer Details (or as notified to the other party pursuant to this condition). A notice given by express post will be treated as served two business days after posting and proof that the envelope containing the notice was properly addressed and sent prepaid is sufficient evidence of service. A notice given in person or by facsimile will be treated as served immediately PROVIDED THAT in the case of notices served by facsimile, the transmission report states that the facsimile has been correctly transmitted. Unless otherwise notified in writing a notice given by facsimile.
14. GOVERNING LAW AND JURISDICTION
14.1 This Contract will be governed by and construed in accordance with the laws of the state of New South Wales. The parties submit to the non-exclusive jurisdiction of the courts of that State and any appeal courts from them.
Part B - Renal Care and Acute Therapies Equipment Related Services
Where the Equipment includes renal care and acute therapies Equipment, the following terms apply.
1. Scope of Support Agreement Components
Where the Customer Details includes providing the following support service, such support service will be provided as described below. In the interests of clarity, where a following support services is not noted or selected in the Customer Details, Baxter is not obligated to provide that support service to the Customer under this Agreement.
| Support | Support Description |
| Technical support hotline. | Telephone access to engineers through our 1800 hotline 24hrs/7 days per week. Engineers will use reasonable endeavours to provide remote assistance to Customer’s staff. If unable to assist and if appropriate, they may obtain further assistance from other engineers within Baxter. |
| Full Preventative Maintenance service. | Preventive maintenance kits (as specified above) will be supplied, fitted and fully documented by a Baxter Service Engineer in accordance with manufacturers standard guidelines. Includes performance of calibrations (as required), functional verification, system performance trials and electrical safety tests. Any required repairs, if required, will be invoiced at Baxter’s “on-contract” rates unless repairs are included elsewhere in Customer’s support plan. |
| Labour Included | Included in the Agreement is all labour and travel associated with the repair of Equipment malfunction during normal business hours (Monday to Friday, 9am to 5pm, excluding public holidays) plus, for CWP only, labour and travel outside of normal business hours. Following arrival on site Baxter engineers will use reasonable endeavours to provide the maintenance necessary to correct Equipment malfunction wherever reasonably possible and as soon as reasonably possible. Further attendance may be required in certain circumstances, for example (but without limitation) where a Service Engineer does not have a particular spare part, in the case of an intermittent fault, where further support is required or where the Equipment needs to be removed from its location to a Baxter workshop. In all cases Baxter reserves the right to determine the feasibility of repairs to a particular item of Equipment. Where the Equipment malfunction is determined to have been a result of improper storage or handling, misuse or negligence, or failure to comply with instructions or recommendations of Baxter, the labour associated with the repair will be invoiced to the Customer. Payment must be made in line with the General Conditions and the Customer Details set out in this Agreement. |
| Spare parts | All Baxter spare parts required for repairs are included to the extent that Baxter determines that a repair is feasible and where the repair is not required due to improper storage or handling, misuse or negligence, or failure to comply with instructions or recommendations of Baxter, and with the exception of membranes and pumps used in central water plants. Should Baxter, in its sole discretion, decide that it is not economically viable to restore the Equipment to an operational condition due to the extent of repairs required Baxter may provide a replacement machine. |
2. Scope of Options
Where the Customer Details includes providing the following optional service, such optional service will be provided as described below. In the interests of clarity, where a following optional service is not noted or selected in the Customer Details, Baxter is not obligated to provide that optional service to the Customer under this Agreement.
| Option | Option Description |
| 4 hour response to call-out |
Baxter is required to use reasonable endeavours to arrange for a Service Engineer to attend site within 4 hours of a call being logged before 12.00 noon on any business day. Where a call is logged after 12.00 noon Baxter will use its best endeavours to arrange for attendance of a Service Engineer on site no later than 12.00 noon on the next business day. Where the Customer requests site attendance out of normal business hours, all labour and travel time associated with the site attendance will be invoiced to the Customer. |
| Membrane descaling (CWP only) | Chemical cleaning of the membranes of CWP Equipment where deemed necessary by a Baxter Engineer. |
| Software/hardware upgrades | Upgrades (software and hardware options that are available through Baxter Sales and Marketing that add new functionality and features which are normally available at cost price including labour. |
3. Service Provision
3.1. All service and maintenance will take place at the Customer’s address shown in the Customer Details, unless otherwise notified by Baxter, for the relevant item of Equipment and in line with the agreed schedule.
3.2. Where Equipment has been moved from the Customer’s address shown in the Customer Details the Customer must inform Baxter in writing. If Baxter incurs any costs as a result of the Customer’s failure to inform, the Customer will reimburse those costs to Baxter. Furthermore, any repairs needed resulting from movement of the Equipment from the location shown are not included in any agreement.
3.3. Arrangement: Failure of Equipment must be notified as soon as practically possible. The Customer shall inform Baxter the machine type, the serial number of Equipment, details of the fault and its exact location. Once a call has been logged a call out will be confirmed. The proposed approximate time of visit will be given in half-day blocks.
3.4. Substitution: Baxter may substitute alternative Equipment for a short period to allow contracted tEquipment faults to be rectified.
3.5. Where a support level component is not included in the Agreement, Baxter may provide the additional service including out of hours call out subject to payment of additional charges at its standard rates from time to time.
3.6. Unless otherwise specified, Services are provided on Business Days between the hours of 9.00 am and 5.00 pm.
4. Conditions of Service
4.1. Provision of Services by Baxter is conditional on and subject to the Customer complying with its obligations under clause 3.1 of Part A of the General Conditions. If the Customer does not comply with its obligations Baxter may refuse to provide the Service or part of it and/or make additional charges where any non-compliance results (as determined by Baxter acting reasonably) in any additional attendance, expense or maintenance or repair requirements.
4.2. Equipment Misuse: If when undertaking planned maintenance, repair or Services, it becomes apparent that the requirements of Equipment operation and care set out in the Equipment handbook have not been complied with or the Equipment is excessively dirty, is in incorrect user adjustment, or has been the subject of misuse or careless handling, or in the event that any of the exclusions in clause 5.1 of this Part B of the General Conditions below apply, Baxter may charge for the time and expenses involved (including travel) and parts fitted in bringing the Equipment back to a serviceable condition. These charges will be in accordance with Baxter’s then-current standard rates.
5. General Exclusions
5.1. The following are excluded:
5.1.1. Equipment modification requested by the Customer.
Servicing or repair of Equipment required as a result of attention by any person other than the Baxter’s authorised representatives, or use of non-approved consumables;
5.1.2. Servicing or repair of Equipment required as a result of improper storage or handling, misuse or negligence, or failure to comply with instructions or recommendations of Baxter;
5.1.3. Servicing of Equipment required as a result of breach by the Customer of its obligations in clause 3.1 of Part A of the General Conditions, or the absence of or failure to use any product, component or accessory recommended by Baxter;
5.1.4. Accidental damage;
5.1.5. Home patients’ WROs and WSFs are not covered for either service or repair unless listed as separate items in Schedule 1;
5.1.6. Any repair resulting from failure to follow operational guidelines;
5.1.7. Out of hours call-outs, unless specifically included as a special condition in the Customer Details; and
5.1.8. Replacement of sub-assemblies or discrete items of Equipment for which spare parts are no longer available from the manufacturer.
5.1.9. Out of cycle servicing (such as Preventative Maintenance, Electrical Safety testing or battery recharging) requested by the Customer but either not mandated as part of the Manufacturers standard guidelines or not covered under this Partnership Support Agreement.
Part C - Medication Delivery and Nutrition Equipment
Where the Equipment includes Medication Delivery and Nutrition Equipment , the following terms apply.
1. Manner of Performance:
1.1. Baxter will use commercially reasonable efforts consistent with standard industry practice to complete the Services within a reasonable period of time after Customer’s request. Neither Baxter nor the Equipment Manufacturer makes any representation or warranty herein as to any specific deadline or period of completion for any Services hereunder (provided, however, that any such representation, warranty or covenant made by Baxter or Manufacturer under any separate agreement with Customer shall be valid and binding in accordance with the terms of such separate agreement), and Customer agrees that Customer is solely responsible for arranging for and payment of short-term rental costs, leasing costs and other costs associated with any replacement or supplemental Equipment Customer may deem necessary or appropriate during the period of time that the Equipment is receiving Services hereunder.
1.2. Equipment will be shipped by Baxter, or at the direction of Baxter, to Customer via UPS or other commercial carrier selected by Baxter. For further information or instructions Customer should contact a Baxter local Customer/Technical Service representative. Service requests should be communicated to Baxter via call to 1800 BAXTER (1800 229 837) (“Service Requests”).
1.3. Repairs will take place either at the Equipment Manufacturer’s location or at Baxter’s repair location, as determined by Baxter’s technical staff.
1.4. Preventive maintenance will be performed at the Customer’s address set out in the Customer Details section of this Agreement, or Baxter’s premises, as preferred by Baxter, in accordance with the Service Leveln selected in the Customer Details section of this Agreement, subject to the manufacturer’s recommended schedule and during normal business hours.
1.5. Response time to requests for Services will vary according to the severity of the issue. Baxter will use reasonable efforts to make a repair call within one (1) business day for non-functioning Equipment and to make a repair call within three (3) business days (shipping time not included) for all other Equipment service requests. Customer acknowledges that the actual repair time may vary according to the nature and seriousness of the problems reported, and that no guarantee is made by Baxter as to the time within which repair service will be completed.
1.6. Unless otherwise provided elsewhere in the Agreement, all replacement parts are furnished on an exchange basis and the parts removed by Baxter or the Manufacturer become the property of Baxter or the Manufacturer (as applicable) and may be retained or destroyed in the sole discretion of Baxter or Manufacturer (as applicable).
1.7. Equipment identified in this Agreement is subject in each case to acceptance by Baxter for Services. For each item of Equipment: (1) the Equipment must be functionally operable in accordance with its written specifications on the Effective Date of this Agreement; and (2) if the Equipment is part of a Single System as defined below, all other Equipment within that Single System are delineated in the Type of Services.
1.8. All labour and parts needed to render the Equipment functionally operable at the commencement of this Agreement shall be Customer’s responsibility unless the parties agree to have Baxter perform this work as services additional to the Services provided under this Agreement. Baxter may inspect and test the Equipment to determine if it is functionally operable for purposes of this Part C of the General Conditions. For purposes of this Part C of the General Conditions, a “Single System” means a combination of Equipment, including one or more controllers or processing units, which are designed to operate in conjunction with each other and are interconnected by power or signal cables or other equivalent means provided by the manufacturer.
1.8.1. Out of cycle servicing (such as Preventative Maintenance, Electrical Safety testing or battery recharging) requested by the Customer but either not mandated as part of the Manufacturer’s standard guidelines or not covered under this Partnership Support Agreement will be quoted and charged separately to the Customer.
Part D CONNECTED HEALTH SOFTWARE SUPPORT
Where the Equipment includes Software provided for the Product, the following terms apply.
1. For the purposes of this Part D, the following defined terms apply:
| Term | Definition |
| Contact Person | Any individual designated in writing by End User to serve as End User’s contact to access support for the Software |
| Customer | Any organization who purchases Software from Service Provider |
| Disaster Recovery | The process is which a system is rebuilt to meet the equivalent operation of that system before a catastrophic event occurred (i.e. nature disaster, man-made disturbance to the environment, etc.) |
| Documentation | Service Provider’s then current published written or electronic documentation specifying the functionality of the Software and made generally available by Service Provider to its Customers or its End Users |
| End User | Any person, including any employees and/or agents of Customer or its affiliates, who is permitted to access and use the Software |
| Error | A material failure of the Software, to conform to the Baxter published and functional specifications |
| Feature Request | A request for a custom enhancement or other change to the Software supplied, which increases its capabilities beyond the original Software specification |
| Product | The specific infusion pumps purchased by Customer from Baxter |
| Purchase Agreement | A separate agreement entered into by Customer and Service Provider that govern the purchase (or lease) and use of the Product |
| Regular Hours | 7AM-7PM EST, Monday to Friday (Excludes Saturday and Sunday and public holidays). |
| Service Incident | An unplanned interruption or reduction in the quality of an IT service |
| Service Provider | Baxter Healthcare Pty Ltd |
| Service Request | A request for correction of an Error |
| Software | Any software or other digital application licensed to Customer by Service Provider to provide digital connectivity to the Product, such as Service Provider’s Dose IQ Safety Software and IQ Enterprise Connectivity Suite |
| Integration | The process or software solutions that process the data in a way that either the receiving or sending software system can acknowledge or interpret the data |
2. Scope
Service Provider will provide support services as described below to assist Customer in resolving Errors (“Support Services”). Support Services do not include (a) visits to Customer’s site; (b) any electrical, mechanical or other work with hardware, accessories or other devices other than the Equipment associated with the use of the Software; (c) any set-up, configuration and other work with third party Equipment, software or services, except as otherwise provided in the Documentation; or (d) any professional services (“Professional Services”) associated with the Software, including, without limitation, any custom development. Software Service Provider’s performance of Professional Services if any, will be subject to the parties’ execution of a Statement of Work to the Purchase Agreement and payment of the applicable fees.
3. Support Services shall include the following:
3.1. Measure and maintain service desk incident resolution and service request fulfilment per this Service Agreement;
3.2. Analyse and facilitate resolution of underlying problems;
3.3. Act as the escalation point for Customer;
3.4. Assist with Customer triage of issues;
3.5. Provide technical and product support;
3.6. Restore service via reactive remedial action including product correction; and
3.7. Record service requests
4. Exclusions/Restrictions
4.1. Service Provider's obligations do not extend to Errors or other issues caused by:
4.1.1. General. Service Provider’s obligations shall NOT extend to Errors or other issues caused by or from:
Note: not all Errors regarding servers and pump communication with servers are Software related; Customer’s internal wireless network must be operating properly for the Software to communicate effectively with the Product. Further, Customer’s internal virtualization environment must have sufficient requirements met and be in good working order to enable effective operation of the Software. If trouble with the Software is deemed a result of poor wireless network performance or virtualization environment, Customer will be notified, but the Service Provider cannot and will not perform any corrective action or maintenance on Customer’s wireless network or virtualization infrastructure.
5. Hours of Operation and Customer Channels
5.1. Regular Hours Call Logging Mechanism
Service Requests for the correction of Errors will be logged by Baxter Technical Services team. Service Requests can be logged via the following methods:
Telephone
| Region | Telephone Number |
| USA Support 7AM – 7PM EST |
1-800-356-3454 |
5.2. Baxter will:
5.2.1. maintain a support team capable of receiving outbound information (system health status, basic device information, etc.) monitoring alerts from the installed Software instance for periodic reporting. The support team will respond to Software operation alerts generated by the monitoring system during the Regular Hours;
5.2.2. maintain a customer contact center capable of receiving information from the End User by telephone, electronic mail, and chat if available in country; and assigning an Error severity level to the request as defined below in this Service Level Agreement. The End User (or the initiator of the call) will be provided with a case identification number along with the Error severity level; and
5.2.3. Provide telephone support assistance throughout the deployment process to include upgrades, application and system configuration.
5.3. Extended Hour Support
5.3.1. If Customer has purchased optional EMR integration, 24/7 support will be available through the phone number specified in clause 5.1 of this Part D.
5.3.2. 24 x 7 Support – Customers who have purchased optional EMR Integration Service Provider will provide a representative to provide technical assistance outside Regular Hours in accordance to the Response Time and Severity outlined in clause 8 of this Part D. Technical assistance will be limited in scope to Software components involved in Integration. If Customer has not purchased optional EMR integration, support will be available during Regular Hours.
5.4. Technical Service Portal
A customer technical service portal is available for requesting service, Documentation, Software downloads, and training at service.baxter.com
5.5. Customer Responsibilities
5.5.1. Information. End User is responsible for providing reasonably sufficient information and data to allow Service Provider to readily reproduce all reported Errors;
5.5.2. Contact Person. End User shall appoint one or more Contact Persons;
5.5.3. Where pump information is required, Contact Person or End User will attempt to collect required information regarding the pump(s), e.g. Serial Number, Device ID, time of connection, connected state, Pump OS, Radio Version, IP address, MAC address;
5.5.4. Hardware. End User is responsible for purchasing, installing and maintaining all hardware (computers, network, load balancer, etc.) required to use and support the Software;
5.5.5. Third Party Software. End User is responsible for licensing, installing and maintaining, and any changes to, all third-party software (i.e. operating system (OS), virtual environment, network, etc.) not included in the Software or explicitly licensed under the Purchase Agreement;
5.5.6. Backups. End User is responsible for performing regular storage of the backup files generated by the Software or a “snapshot” of the Software and data. In the event of an Error that results in loss of data or data integrity, Service Provider will work with Customer to remedy the Error in accordance with Clause 3 of this Part Dof this Agreement, in which case service fees may apply;
5.5.7. Connectivity. Customer will provide to Service Provider a continuous, high-speed connection through Customers firewall to all Software, for the purposes of providing Fixes, Updates and data collection for investigation and troubleshooting. The Support Service provided by Service Provider is contingent upon availability of the persistent remote access to the installed Software in Customer’s network using the Baxter Remote Service Platform. In case of limited access to the installed Software, Service Provider is not responsible for the delay or availability of the service. If Customer declines to use the Baxter Remote Access to access the Software, additional fees and charges may occur for Software accessibility troubleshooting and investigation;
5.5.8. Power Backup. Customer is responsible for providing power backups to all Software environments; and
5.5.9. Additional Responsibilities. Customer shall also be responsible for items as defined in the Handoff Document, provided once the installation is complete.
6. Baxter Remote Access
6.1. The Software includes a software agent that allows Service Provider the ability to securely remote into the servers. In order to facilitate the configuration, monitoring, and support of the Software, Service Provider requires an “always on” secure remote tunnel to the Customer’s site established through an outbound connection on port 443. This is required so that the appropriate monitoring data can be collected, and that system maintenance and troubleshooting can occur in a timely manner. Without an “always on” connection Service Provider cannot collect adequate monitoring data to detect Errors proactively nor provide timely response to Errors detected or reported. In the absence of this type of connection, Service Provider can only provide a “best effort” to access and maintain a client site.
6.2. Requests for use of a different solution other than the Baxter Remote Service Platform (third party platform built in Software will result in additional time and charges incurred by Customer on a time and material basis.
6.3. Baxter Remote Service Platform offers flexibility in that Customer can choose between two standard options to meet specific needs:
6.3.1. Baxter Remote Service Platform is always on – this allows for continuous monitoring and for the Service Provider to gather indicators to prevent outages to ensure proper medication delivery
6.3.2. Baxter Remote Service Platform enabled by Customer for troubleshooting and maintenance – Customer enables the remote service platform for Service Provider to assist in troubleshooting and maintenance.
IMPORTANT NOTE: Features of the Software such as updates, upgrades, system monitoring, remote diagnostics of the product.as well as the ability to distribute Software packages used during over-the-air firmware updates for the Products (Only for Novum devices) will not be available to Customer if using a solution other than the Baxter Remote Service Platform. Remote access to a Customer’s Software e is logged and can be furnished upon request to a Customer.
7. Updates and Upgrades
Updates
7.1. As part of the Support Services, Service Provider will issue updates, which fall into two categories, routine and security.
7.1.1. Routine Updates. Service Provider will offer routine Updates on a periodic basis. Example of such routine updates include feature improvements or enhancements and Fixes for any Software anomalies.
7.1.2. Security Updates. Service Provide maintains a robust cybersecurity program that continually monitors Software for vulnerabilities and reported through a varies or threat-intelligence sources. Upon receipt of threat intelligence of a vulnerability affecting the Software, Service Provider will assess the risk of that vulnerability and, based on the severity of the risk to the Product presented by that vulnerability, may develop a security update specifically to address the vulnerability that has been reported and provide that update to customers.
Upgrades
7.2. Service Provider will notify Customer when new upgrades are available through the Technical Service portal (service.baxter.com) and will publish release notes for each version. Service Provider will work with Customer to schedule an appropriate maintenance window in which to undertake the upgrade in accordance with Customer’s IT change management practices. Service Provider follows ITIL (Information Technology Infrastructure Library) processes for the application of upgrades. The process defines the following:
7.2.1. An agreed time to carry out the upgrade;
7.2.2. Documentation of the change. For example, upgrading from V1.01 to v1.0.2;
7.2.3. Success criteria;
7.2.4. Roll-back steps in the event of failure; and
7.2.5. If requested, Service Provider can use a test environment prior to pushing to production for additional fee if not already covered by current agreement.
8. Service Request Management and Response
8.1. Service Request Management
Error correction is subject to verification and reproduction of the Error by Service Provider, with Customer’s reasonable assistance. Error correction may include a temporary workaround, patch or other resolution in order to diminish or avoid the effect of the Error. Once Service Provider has identified corrective measures to fix the Error, Customer will be required to test and accept the fix, work on data issues if data has been impacted, and agree upon a mutually agreeable time when the fix can be implemented on the production platform.
8.2. Priority/Severity Levels
Service Provider will investigate and respond to Errors as reported by the Customer, based on the severity level reasonably assigned by Service Provider as follows:
| Severity Level | Definition |
| 1 - Critical | An incident causing an extremely serious impact to Customer because of the system(s)/service(s) affected and/or where all users cannot access the system, i.e. delaying or hindering medication delivery, prevents Software from delivering or receiving messages to/from a clinical information system |
| 2 - High | An incident, which is not critical, but which is causing a significant impact to Customer because of the system(s)/service(s) affected and/or the number of people affected, i.e. an issue that reduces the functionality of the drug library downloading. |
| 3 – Medium | An incident which affects Customer’s service, causes inconvenience in performing ordinary day to day functions but has a small impact to the business, where only 1 or 2 users or components are affected. i.e. User account related issue such as lockouts, password resets or account establishment fall into this category. |
| 4 - Low | Incidents that have a negligible impact to Customer, requests or enquiries for information purposes only which have no significant effect on the user of the software, i.e. minor imperfections in screen displays, reports, help text or documentation |
8.3. Digital First Response Update
8.3.1. Target first response and resolution times will apply from the time at which a Service Request is triaged locally as a Connectivity Support issue by the Service Provider, rather than an issue related to another part of Customer or Service Provider portfolio or organisation.
8.3.2. The first response may result in the resolution of the reported Error or will identify next actions required to restore operation of the Software.
8.3.3. The first response and resolution may be in the next working day if the Error is logged near to or at the end of the business day. For example, a Severity 1 incident or request logged 30 minutes before the end of the business day may have a response and/or resolution during the following business day.
| Severity Level | First Response Update |
| 1 - Critical | Within ONE (1) Business Hour |
| 2 - High | Within TWO (2) Business Hours |
| 3 - Medium | Within ONE (1) Business Day |
| 4- Low | Within TWO (2) Business Days |
9. Supplementary Services
9.1. Service Provider will provide additional services under this Service Level Agreement to respond to Feature Requests. Feature Requests can be submitted to Service Provider for acceptance by Baxter, at its sole discretion, who will assess suitability for development based on numerous factors, including patient safety and clinical impact.
9.2. If accepted by Service Provider, Service Provider will provide an estimate of effort. Further, Service Provider will endeavour to complete Service Requests within an agreed timescale with Customer.
9.3. The Service Provider reserves the right to extend delivery times (and additional may be applied) where they are waiting for:
9.3.1. Specific instruction in relation to Customer’s requirements;
9.3.2. Remote access to servers hosting a Baxter module;
9.3.3. Work or information from Customer’s IT or system experts;
9.3.4. Completion of work by Customer;
9.3.5. End User approval or agreement to proceed; or
9.3.6. Deployment of another Service Request which has taken priority at Customer’s request.
10. Support and Maintenance Suspension or Termination
10.1. The Service Provider will provide support under this SLA to Customers for the current version and preceding version of the Software, provided however, Service Provider may stop supporting versions of the Software older than 24 months where an update is available but has not been deployed by the Customer. Use of an older version of the Software may affect the response time of Service Provider. Customers who do not maintain a current service contract with Service Provider will be subject to a reinstatement fee plus standard annual service fees outlined in renewed service contract agreement. Outstanding fees must be paid prior to the application of an update to the Software.
10.2. Software Version History
10.2.1. Customer must provide timely access for Baxter to perform updates when requested (by Baxter).
10.2.2. If Customer does not provide access and Software becomes outdated, then Baxter may decline to support the Software until it is updated. Further, Customer will bear an additional charge if use of an older version of the Software requires work to upgrade Customer to the most-recent version of the Software version.
10.3. End of Life Software
10.3.1. Adequate notice in accordance with relevant law will be given by Service Provider for the sunsetting of Service Provider Products and decommissioning of the Software, and a definitive date will be supplied for the withdrawal of Support Services, after which time, Service will no longer provide Support Services for the Software.