TERMS AND CONDITIONS
WE, US, OUR, and MIS means Med Image Systems, Inc.
YOU and YOUR means the individual, group, or company listed as Customer on the First Page of this SERVICE AGREEMENT.
SERVICE AGREEMENT means this document and all Schedules, Endorsements, and Amendments attached hereto.
BREAKDOWN means the failure of any piece of COVERED EQUIPMENT covered by this SERVICE AGREEMENT to perform the manufacturer’s intended function(s) in normal service,
PREVENTATIVE MAINTENANCE means the schedule of routine maintenance services, if any, prescribed in the Equipment Description for each piece of COVERED EQUIPMENT that is intended to keep the equipment in good operating condition. Unless otherwise noted, PREVENTATIVE MAINENANCE will be performed only during regular business hours (Monday – Friday, 8am -5pm, excluding holidays).
REMEDIAL SERVICE means service, replacement parts and repairs required to restore a piece of COVERED EQUIPMENT to its normal operating condition when necessitated by a BREAKDOWN.
SERVICE AGREEMENT AMOUNT means the amount that YOU must pay in order for US to cover the equipment listed in Equipment Description under this SERVICE AGREEMENT. The
SERVICE AGREEMENT AMOUNT is set forth on the First Page of this SERVICE AGREEMENT.
COVERAGE PERIOD means the period from 12:01 a.m. on the Coverage Effective Date to 11:59 p.m. on the Coverage Expiration Date, as stated on the First Page of this SERVICE AGREEMENT.
COVERED EQUIPMENT means the equipment that is listed in Equipment Description that is attached hereto. Notwithstanding the foregoing, the equipment listed in the Equipment Description will not be Covered Equipment if: (i) it was not functioning at OEM specifications for performance and image quality at the Coverage Start Date; (ii) in the case of X-Ray emitting equipment, the X-ray tube is determined to have less than 35% tube life remaining at the Coverage Start Date (as determined in Our sole discretion); OR (iii) in the case of MRI machines, the equipment has less than 60% Helium level at the Coverage Start Date.
COVERED SERVICE means the PREVENTIVE MAINTENANCE and REMEDIAL SERVICES prescribed for each piece of COVERED EQUIPMENT under this SERVICE AGREEMENT.
A. COVERAGE. In consideration of full payment of the SERVICE AGREEMENT AMOUNT, and subject to the terms, conditions and limitations set forth in this SERVICE AGREEMENT, including but not limited to the AGGREGATE DEDUCTIBLE, WE will pay for COVERED SERVICE performed on COVERED EQUIPMENT during the COVERAGE PERIOD.
B.EFFECTIVE DATE OF COVERAGE; NON-TRANSFERABLE. This SERVICE AGREEMENT shall be effective on the date accepted and executed by OUR authorized representative and is not transferable by YOU, in whole or in part, or as to any piece of COVERED EQUIPMENT, without OUR consent, in OUR sole discretion, and shall remain in effect until expiration or earlier terminated as herein provided.
C.YOUR ON-GOING RESPONSIBILITIES UNDER THIS SERVICE AGREEMENT. During the Coverage Period of this SERVICE AGREEMENT, YOU agree that YOU will, at YOUR sole expense:
1.Pay all SERVICE AGREEMENT AMOUNTs, including amounts for replacement parts and cryogens, as the same become due and owing under this SERVICE AGREEMENT;
2.Permit US or OUR designee to inspect, at all reasonable times, any and all of the COVERED EQUIPMENT; provided, however, that neither OUR right to make inspections, nor the making of any inspection of COVERED EQUIPMENT shall constitute any representation, warranty, or undertaking whatsoever by US for YOUR benefit or for the benefit of others regarding the condition, quality, or suitability of the COVERED EQUIPMENT;
3.Store and safeguard COVERED EQUIPMENT or components of COVERED EQUIPMENT that have been replaced in the performance of COVERED SERVICE until such time as WE or OUR designee have an opportunity to inspect them;
4.Cooperate and assist US in any matter as WE may reasonably request concerning the performance of COVERED SERVICES;
5.Follow all of the installation, operation, and maintenance instructions provided by the manufacturer(s) or service vendor(s) of the COVERED EQUIPMENT;
6.Provide the proper environment as specified by the manufacturer(s) or service vendor(s) of the COVERED EQUIPMENT, including, but not limited to temperature, humidity, and dust control;
7.Provide the proper electrical and telecommunications connections as specified by the manufacturer(s) or service vendor(s) of the COVERED EQUIPMENT;
8.Maintain all protective safeguard and safety devices recommended by the manufacturer and/or service vendor(s) for the COVERED EQUIPMENT;
9.Prevent COVERED EQUIPMENT from being exposed to any harmful condition;
10. YOU are responsible for patient data and ensuring data backups are performed. WE are not responsible nor can be held liable for any lost patient data; and
11. If the COVERED EQUIPMENT includes an MRI machine utilizing cryogens, YOU are responsible for monitoring the cryogen level and immediately notifying US if/when the level decreases below 70% and before it reaches 60%.
12. YOU are entitled to a service software key if required by the OEM and YOU are responsible for obtaining any service key or software license necessary to perform service.
D. YOUR RESPONSIBILITIES IN THE EVENT OF A BREAKDOWN. In the event of a BREAKDOWN involving COVERED EQUIPMENT, as conditions precedent to OUR obligations under this SERVICE AGREEMENT, YOU must:
1.Notify US within 24 hours of the occurrence of a BREAKDOWN, and provide US with a detailed description of how, when, and where the BREAKDOWN occurred;
2.Make the COVERED EQUIPMENT that has experienced the BREAKDOWN accessible for the performance of REMEDIAL SERVICE.
3.Take all reasonable steps within YOUR power to minimize the extent of damage to COVERED EQUIPMENT;
4.Preserve and protect the COVERED EQUIPMENT from further damage and make it available for inspection by US or OUR designee; and
5.Provide adequate working space and a professional work environment within a reasonable distance of the COVERED EQUIPMENT for use by field service personnel and facilities for storage and safekeeping of materials, equipment and parts.
6. YOU shall provide unrestricted and safe access to the said COVERED EQUIPMENT, during normal business hours of 8:00am to 5:00pm Monday thru Friday, for US and OUR representatives and shall cooperate with OUR representatives in their performance of the services under this SERVICE AGREEMENT.
E. LIMITS OF LIABILITY
1. In no event shall WE be liable to YOU or any other party claiming any interest in the COVERED EQUIPMENT for special, indirect, incidental or consequential damages relating directly or indirectly to this SERVICE AGREEMENT.
F.EXCLUSIONS FROM COVERED SERVICES. WE are not responsible for:
1.Any BREAKDOWN due to external causes (including, but not limited to): natural disaster, fire, wind, lightning, smoke, smog, explosion, collapse, earth movement, settling, cracking, shrinking or expansion, insect/rodent infestation, vehicle, aircraft, water damage from any source external to the COVERED EQUIPMENT, interruption of gas or electrical service, power surge, rust or corrosion damage caused by atmospheric conditions, war or hostile action, riot, vandalism, malicious mischief, theft, impact, abuse, misuse, any person making changes to software that is inconsistent with OEM specification, nuclear radiation, radioactive contamination, mold and any acts of God.
2.Any cost associated with on-the-job training, applications support, applications training, or technical training of any sorts.
3.Any cost associated with equipment overhauls, modifications, tests or safety checks.
4.Any Stored Media.
5.Any cost associated with Hazardous Substances.
6.Any costs associated with rental equipment.
7.Consequential, secondary, or remote loss of any kind or description whatsoever.
8.Loss of market, depreciation, diminution of value.
9.Infidelity, dishonesty or misrepresentations on YOUR part, or on the part of any of YOUR partners, officers, directors, agents, trustees, employees, or other party.
10.Any BREAKDOWN not reported during the COVERAGE PERIOD.
11.Any loss occasioned by any ordinance or law, or any order of governmental or municipal authority; or by virtue of the suspension, lapse, termination, or cancellation of any license, lease, or permit; or as the result of any injunction of any court.
12.Any claim for personal injury or sounding of product liability.
13.Any loss caused by business interruption, delay or lost market;
14.Any loss due to misrepresentation or any attempt to defraud US, including collusion between YOU and repair personnel.
15.Any BREAKDOWN caused by intentional, negligent or accidental misuse or destruction (including, but not limited to): loss due to failure to operate or maintain the product in accordance with manufacturer’s recommended instructions, including tampering with software and changing operating parameters outside of OEM recommendations.
16.Unauthorized alterations or failure to comply with building codes and regulations regarding product installation.
17.Betterment, upgrades or improvement, to the COVERED EQUIPMENT.
18.Cosmetic damage (including, but not limited to): dents, rust, scratches, discoloration, paint chipping.
19.Replacement of consumable items (including, but not limited to: vacuum bags, trash compactor bags, toner and drum cartridges, tapes, filters, keys, batteries, oil, grease, or other lubricants, belts, coolants, refrigerants, bulbs, blades, battery coils, tubes of any kind, and tires).
20.Light emitting sources (including, but not limited to): any form of lamp which emits radiant energy, unless a covered loss has occurred relating to the COVERED EQUIPMENT of which
such light source forms a part of or to which it was temporarily attached at the time the loss occurred.
21.Any type of glassware (including, but not limited to): roentgen tubes, x-ray tubes, flouro tubes, TV pickup tubes such as vidicons, gas CT detectors, tetrodes, laser tubes, image intensifiers, nuclear medicine scinitillation crystals, linear accelerator beam center lines, wave guides and attachments, electron guns, magnatrons, klystrons and thyatrons, ultrasound transducers, and fiber optic cables unless specifically endorsed. Where glassware is specifically endorsed in this Agreement, any repair/replacement within one year of another glassware replacement or where usage exceeds 250,000 scan seconds per year.
22.Any coverage afforded under this SERVICE AGREEMENT if YOU fail to perform any of YOUR obligations under this SERVICE AGREEMENT.
23.Design defects or repairs due to the inability to process or display date data within and between the twentieth and twenty-first centuries.
24.Faulty workmanship, repairs or replacement due to a manufacturer’s recall, defects or errors in design, preexisting defects or deficiencies if known to YOU at the beginning of the COVERAGE PERIOD and not disclosed to US.
25.Obsolete Equipment including out-of-date, no longer serviceable because of technology changes or because of lack of parts or lack of manufacturer support; or the manufacturer has declared the units to be obsolete and will or cannot offer a service contract on the equipment; or the unit no longer meets minimum requirements for patient, user or operator safety; or the equipment no longer meets the minimum standards of any regulatory body or agency having jurisdiction over the certification or continued use of such equipment.
26.Vandalism or malicious mischief.
27.Components, products or items not specifically listed in this SERVICE AGREEMENT
28.Any repair covered by a manufacturer’s original warranty.
29.Unauthorized repairs performed by third parties.
30.Shipping damage to products resulting from inadequate packaging by YOU.
31.Any Emergency Service that is required to bring the COVERED EQUIPMENT into proper cryogen range, where notification of a decreased level was not provided to US in the time frame required under the terms of this SERVICE AGREEMENT; under these circumstances, WE reserve the right to not repair or perform cryogen work if damage to the system has resulted from neglected decreased cryogen levels.
32. Any costs related to a MRI quench, where there is no negligence on OUR part and where all components related to the cooling system are determined (in OUR sole discretion) to be in working condition,.
1.In the process of performing the services under this Agreement, WE may be required to interface with electronic data stored on YOUR Equipment, systems or computers. YOU agree that WE are permitted to access those systems for the purpose of fault diagnosis or repairs and that WE may come into contact with information that is defined as Personal Health Information under the Health Insurance Portability and Accountability Act of 1996. WE will not use or disclose that information other than as permitted under this Agreement, or as provided by law. WE will report incidents that constitute breaches of the Protected Health Information. At the conclusion of the services under this Agreement, WE will return all Protected Health Information to YOU or destroy it. Any subcontractors that perform work on OUR behalf will adhere to the same obligations relating to Protected Health Information.
H.BREACH AND DEFAULT
1.If either party fails to comply with any of the terms and conditions outlined in this SERVICE AGREEMENT, the other party may give written notice of such failure. If, within fifteen (15) days after receiving such notice, the non-complying party fails to (a) correct its nonperformance or (b) commence and continue a good faith effort to correct its noncompliance within a reasonable time period, the party shall be in default of this SERVICE AGREEMENT. Notwithstanding the forgoing, WE may immediately declare YOU in default under this SERVICE AGREEMENT, without notice or opportunity to cure, if YOU fail to pay any amount owing for the coverage provided under this SERVICE AGREEMENT on or before the date the payment is due, or if YOU present any false or fraudulent claim under this SERVICE AGREEMENT.
2.WE shall have no obligation to provide or pay for service not covered by this SERVICE AGREEMENT or for unnecessary or falsely recorded service, and the existence of any plan or scheme designed to cause US to do so shall constitute a default of this SERVICE AGREEMENT for which WE may exercise and prosecute any and all remedies available to US under this SERVICE AGREEMENT or by law.
3.Upon default of this SERVICE AGREEMENT by either party, the other party may terminate this SERVICE AGREEMENT and/or exercise any other remedies set forth herein.
4.Any claim for damages arising from this SERVICE AGREEMENT must be brought to the attention of the other party in writing within sixty (60) days of the event giving rise to action, and any legal action arising from this AGREEMENT be commenced within six (6) months after the cause of action arises.
1..YOU agree to release, indemnify, and hold US, OUR officers, employees, subcontractors and agents harmless from and against all claims, damages or losses of any nature (including but not limited to personal injury claims of patients) that rise out of or in connection with any breach of this SERVICE AGREEMENT by YOU, or the use of, the inability to use, or the interruption or failure to maintain the equipment covered under this SERVICE AGREEMENT.
2.YOU shall pay all costs, including attorney’s fees, and damages flowing from any claims that are subject to indemnification under the preceding paragraph. WE will notify YOU within thirty (30) days of receipt or discovery of any such claim. WE grant YOU the right to defend (with counsel reasonably acceptable to US) any suit based upon such claim, and YOU shall be available for a reasonable amount of time to cooperate and assist in the defense of the suit.
J.MISCELLANEOUS TERMS AND CONDITIONS
1.Cancellation. YOU may not cancel this SERVICE AGREEMENT before the end of the term. WE may cancel this SERVICE AGREEMENT at anytime, upon not less than thirty (30) days advance written notice to YOU. Notice of cancellation shall be sent, in writing, to YOUR address stated on the First Page of this SERVICE AGREEMENT. If this SERVICE AGREEMENT is canceled, YOU will be responsible to pay any SERVICE AGREEMENT AMOUNT earned up to the date of cancelation or the amount of any expenses paid by US, whichever is greater. WE will refund any unearned SERVICE AGREEMENT AMOUNT to the extent it is not offset by the amount of expenses paid by US is greater than the SERVICE AGREEMENT AMOUNT earned.
2.Other Coverage. The coverage under this SERVICE AGREEMENT shall be in excess in relation to any coverage under any insurance policy, warranty, guarantee, or another SERVICE AGREEMENT.
3.Right, Title or Interests in COVERED EQUIPMENT. YOU warrant and represent, so that WE may rely thereon, that YOU are the owner, lessee, or licensee of all the COVERED EQUIPMENT of this AGREEMENT, including hardware and software, with respect to which coverage is to be provided under this AGREEMENT, and that YOU are fully authorized to enter this SERVICE AGREEMENT with respect to the COVERED EQUIPMENT. YOU will indemnify and hold US harmless from and against any liability to any other party claiming an interest in any of the COVERED EQUIPMENT, including but not limited to claims by secured lenders and equipment lessors. If We replace any component or Covered Equipment, You agree to transfer all rights, title and interest in the replaced component or Covered Equipment to Us.
4.Concealment or Misrepresentation. This SERVICE AGREEMENT shall be void if YOU have concealed or misrepresented any material fact or circumstance concerning the coverage afforded by this SERVICE AGREEMENT or in the case of fraud, attempted fraud, or false swearing by YOU that is any way related to the coverage afforded by this SERVICE AGREEMENT, whether before or after a loss.
5.Equipment Relocation: YOU agree to give US prompt written notice of any relocation or modification of the COVERED EQUIPMENT, and agree not to relocate or modify any portion of
the COVERED EQUIPMENT or its components in a way that would reasonably increase the risk of system malfunction, or allow anyone access to the internal components. With the exception of the COVERED EQUIPMENT that is relocated or modified, if, in OUR opinion, any relocation or modification impedes or increases the cost of coverage, creates a safety hazard or otherwise increases the risk to US, is likely to interfere with service by third parties, or is likely to cause the COVERED EQUIPMENT to experience a BREAKDOWN, WE, at OUR option, may either terminate this SERVICE AGREEMENT with respect to the affected COVERED EQUIPMENT, or adjust the SERVICE AGREEMENT AMOUNT with written notice to YOU. If WE elect to terminate this SERVICE AGREEMENT with respect to the affected COVERED EQUIPMENT, the SERVICE AGREEMENT AMOUNT shall be equitably adjusted.
6.Adjustment of SERVICE AGREEMENT AMOUNT. In addition to any other rights that WE may have under this SERVICE AGREEMENT, WE reserve the right to adjust the SERVICE AGREEMENT AMOUNT in the event the equipment actually installed materially differs from the COVERED EQUIPMENT described in Equipment Description, or if features of any of the COVERED EQUIPMENT are changed after the Coverage Effective Date. Any adjustment made to the SERVICE AGREEMENT AMOUNT will be retroactive to the date of such change.
7.Changes in COVERED SERVICE.
a.Additions, deletions, or changes in the COVERED SERVICES provided under this SERVICE AGREEMENT shall not be effective unless and until made in a written amendment to this SERVICE AGREEMENT, signed by YOU and accepted by US.
b.If a change in COVERED SERVICES involves the additional of equipment to the COVERED EQUIPMENT, coverage shall not be effective until WE receive payment of any additional SERVICE AGREEMENT AMOUNT due to US as the result of the change.
c.The effective date of coverage for additional equipment will be the date set forth in the written amendment.
a.YOU may not transfer or assign any of YOUR rights or benefits under this SERVICE AGREEMENT without OUR prior written consent. If however, YOU are adjudged bankrupt or insolvent, and written notice is given to US within sixty (60) days of such adjudication, this AGREEMENT shall cover YOUR legal representative provided that all payments due are paid.
b.WE may transfer or assign OUR interests under this SERVICE AGREEMENT, or any portion thereof, to any legal entity which WE control, is controlled by US, or is under common control with US, or to any legal entity resulting from a merger or consolidation with US, or to any person or legal entity which acquires all, or substantially all of OUR assets. WE, or OUR successor or assignee, shall notify YOU in writing within thirty (30) days after the effective date of a transfer or assignment, and shall provide YOU with the name and mailing address of the transferee or assignee. WE shall be released from all liabilities or obligations to provide the COVERED SERVICES under this SERVICE AGREEMENT upon notification to YOU of the transfer or assignment of this SERVICE AGREEMENT.
9.Changes to the AGREEMENT. Except as otherwise provided in this SERVICE AGREEMENT, this SERVICE AGREEMENT may not be amended, revised, or modified except in a writing, signed by authorized representatives of both parties.
10.Right of Subrogation. In the event of any payment made by US for COVERED SERVICES under this SERVICE AGREEMENT, WE shall be subrogated to all YOUR rights of recovery therefore against any person or entity, and YOU shall execute and deliver to US such instruments, assignments, and papers as requested by US and do whatever is necessary to secure such rights or to effectuate OUR exercising of such rights. YOU shall do nothing to prejudice or waive OUR subrogation rights. In addition, all monies recovered by YOU for which YOU have received benefits under this SERVICE AGREEMENT shall belong to Us, and shall be immediately paid to US by YOU upon demand, up to the total amounts of the benefits paid by US.
11.GOVERNING LAW; DISPUTE RESOLUTION; JURISDICTION. The AGREEMENT shall be construed and governed according to the laws of the State of Tennessee and the United States of America. The provisions of the United Nations Convention on Contracts for the International Sale of Goods, and any conflict-of-laws provisions that would require application of another choice of law, are excluded. In the event of any dispute arising from or relating to the AGREEMENT, the parties hereto shall initially use their best efforts to amicably settle the dispute. To this effect, they shall consult and negotiate with each other in good faith and attempt to reach a mutually satisfactory solution. If they do not reach such a solution, all disputes, claims, questions, or differences regarding the AGREEMENT, or any other matter between the parties, will be finally resolved by binding arbitration, conducted in the English language using a single arbitrator. Unless otherwise agreed by US: (1) if the arbitration involves only United States parties, it will be conducted under the Commercial Arbitration Rules of the American Arbitration Association (AAA) in force as of the date of the request for arbitration, which rules are deemed to be incorporated by reference into this clause; (2) if the arbitration involves any parties not domiciled in the United States, it will be conducted under the International Arbitration Rules of the American Arbitration Association (AAA) in force as of the date of the request for arbitration, which rules are deemed to be incorporated by reference into this clause; (3) the arbitration shall be heard at the AAA office having suitable facilities nearest OUR main offices in Memphis, TN, USA; (4) the arbitrator will be selected from a list using the recommended selection method under the rules applicable to the arbitration proceeding; (5) the arbitrator may award attorneys’ fees and costs to the substantially prevailing party, but in no event will any party be awarded penal, punitive or exemplary damages; and (6) the award of the arbitrator will be enforceable in any court of competent jurisdiction.
12. Scope of Coverage. This SERVICE AGREEMENT is not valid as to COVERED EQUIPMENT located anywhere outside of the Continental United States, Alaska, and Hawaii.
13.Abandonment: There can be no abandonment of the COVERED EQUIPMENT by YOU to US.
14.Waiver. No failure of either party to exercise any right or power given under this AGREEMENT, or to insist upon strict compliance with any obligations specified in this AGREEMENT, and no custom or practice at variance with the terms of this AGREEMENT, absent such an express written waiver, shall constitute a waiver of either parties right to demand exact compliance with the terms of this AGREEMENT.
15.Severability. If any portion of this AGREEMENT is held invalid, the parties agree that such invalidity shall not affect the validity of the remaining portions of this AGREEMENT, and the parties further agree to substitute for the invalid provision a valid provision that most closely approximates the economic effect and intent of the invalid provision.
16.Notices. Any notices, requests, instructions, or other documents to be given hereunder by YOU to US, or US to YOU, shall be in writing and, except as otherwise specifically provided herein, shall be delivered electronically, by facsimile, personally, sent by registered, certified or first class mail, or by reputable overnight carrier to the respective address, or to other address as any party hereto may designate by prior written notice to the other, delivered in accordance with this stipulation. With respect to those notices that must be given within a certain time period as set out herein, such notices will be deemed effective upon receipt.