Use of Loaner. Customer will ensure the proper use, management and supervision of the Loaner. Customer will use the Loaner only with surgical instruments and accessories made or approved by Intuitive Surgical, and will not, nor will Customer permit any third party to, modify, disassemble, reverse engineer, alter or misuse the Loaner and or any associated da Vinci instruments or accessories. Such actions include, by way of example, but are not be limited to (1) (i) adding to, or (ii) subtracting from the Loaner, any Customer or third party equipment, hardware, firmware or software, or (2) reconfiguring any of the Intuitive Surgical equipment, hardware, firmware or software as originally provided to Customer as part of the Loaner, without the express written permission from Intuitive Surgical. In addition, Customer will be liable for any and all damages, whether foreseeable, consequential or incidental, incurred by Intuitive Surgical and arising or resulting, directly or indirectly, from Customer's breach of the above prohibition against modification, disassembly, reverse engineering, alteration or misuse of the Loaner and/or the accessories. Customer will ensure that the Loaner is moved and/or operated only by trained personnel in accordance with the user documentation and Intuitive Surgical's instructions. Customer will ensure that the Loaner, when returned to Intuitive Surgical, is in good working order.
Indemnity. To the extent allowable by law, Customer hereby assumes all liability for, and agrees to indemnify, defend and hold harmless Intuitive Surgical and its successors, permitted assigns, agents and employees from and against, any and all liabilities, losses, damages, claims and expenses (including reasonable attorneys' fees and costs) to the extent they arise from (a) Customer's or its employees', agents' or representatives' negligence or willful misconduct in the use, possession, or operation of the Loaner, or (b) Customer's breach of any of its obligations hereunder. Notwithstanding the foregoing, Customer's indemnification obligations under this Section do not apply to the extent that such claims arise from Intuitive Surgical's negligence or willful misconduct or breach of any of its obligations hereunder.
Limited Software License and Restrictions. Software embedded within the Loaner is provided under license and is not sold to Customer. Subject to the terms and conditions of this Agreement, Intuitive Surgical grants to Customer a non-exclusive, non-transferable, fully-paid, limited license to use and perform the Software solely as incorporated in the Loaner in machine-executable object code form and solely in connection with the operation of the Loaner as described in the documentation provided by Intuitive Surgical during the period of this Agreement. Customer must not use, copy, modify or transfer the Software or any copy thereof, in whole or in part, except as expressly provided in this Agreement. In addition, Customer must not reverse engineer, decompile, disassemble, attempt to derive the Source Code for, or otherwise manipulate the Software. Customer acknowledges and agrees that the structure and organization of the Software are valuable trade secrets of Intuitive Surgical and Customer agrees to protect the Software as Intuitive Surgical's Proprietary Information. Intuitive Surgical reserves all rights to the Software not expressly granted to Customer. Except as expressly set forth above, the Software is part of the "Loaner" and is subject to all of the terms and conditions set forth in this Agreement.
Proprietary Information. Each party ("Receiving Party") agrees to hold all Proprietary Information of the other party ("Disclosing Party") in strict confidence and may not use for any purpose, or disclose to any third party, any such Proprietary Information, except (i) as expressly authorized in this Agreement or in writing by the Disclosing Party, and (ii) solely to benefit the Disclosing Party and/or further the relationship of the parties. The Receiving Party will use the same degree of care to protect the Proprietary Information as Receiving Party uses to protect its own information of like kind, which in any event will include all reasonable steps to maintain the confidentiality of such information. For purposes of this Agreement, Proprietary Information means (1) all non-public information obtained by the Receiving Party from the Disclosing Party which (a) relates to the Disclosing Party's past, present or future research, development or business activities or the results of such activities; or (b) the Disclosing Party has received from others and is obligated to treat as confidential and proprietary; and (2) all information derivable from the Loaner, but excluding information that can be learned simply through observation of the Loaner and its operation. Proprietary Information does not include information previously known by the Receiving Party as demonstrated by Receiving Party's written records, nor information publicly disclosed without breach of an obligation of confidentiality, either before or after the Receiving Party's receipt of the information.
Reporting under Physicians Payment Sunshine Act. Commencing in 2013, payments made or transfer of value to Customer under this arrangement may be reportable by Intuitive Surgical to the United States Federal Government ("Government") in compliance with the Physicians Payment Sunshine Act ("PPSA") provision of the Patient Protection and Affordable Care Act of 2010, as may be amended from time to time. The PPSA requires that medical device companies such an Intuitive Surgical report annually to the Government payments or provision of anything of value to covered physicians and hospitals. Information to be reported include the payee name, state license number, national provider identifier number, business address, specialty, nature of payment, and amount paid. The Government will subsequently make the reported information public available in a searchable, downloadable internet website.
Last updated: 4/30/13