GENERAL. These terms and conditions constitute an integral part of the Agreement between the parties to enter into this transaction and shall govern the rights and responsibilities of the parties with respect to any warranty or maintenance services.
DEFINITIONS WE, US, and OUR means Block Imaging Parts and Service, LLC, a Michigan Limited Liability Company.
YOU and YOUR means the individual, group, or company listed as Buyer on the SERVICE AGREEMENT.
SERVICE AGREEMENT means the contract for maintenance services contained in the SERVICE AGREEMENT and these terms and conditions; SERVICE AGREEMENT includes any attached documents, Schedules, Endorsements, and Amendments.
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 Service Description for each piece of COVERED EQUIPMENT that is intended to keep the equipment in good operating condition. Unless otherwise noted, PREVENTATIVE MAINTENANCE will be performed only during regular business hours (Monday – Friday, 8am -5pm, excluding holidays). YOU are responsible for contacting US and scheduling any included PREVENTATIVE MAINTENANCE services during the COVERAGE PERIOD.
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 the sum of the costs for all equipment in the SERVICE AGREEMENT. If the SERVICE AGREEMENT is included with an equipment purchase, the SERVICE AGREEMENT AMOUNT is paid when the Total Purchase Price from the Sales Quotation is received by US. Payment of the Service Agreement Amount will be made in advance of Coverage Period unless otherwise agreed by US. If WE agree to accept periodic payments, YOU must make them by automatic Electronic Funds Transfers (EFT’s). To accomplish this, YOU will provide YOUR account information and authorization on the “Authorization Agreement for Electronic Funds Transfer and Automatic Payments” form which will be provided. Credit Card payments may be accepted at OUR discretion and will be subject to a convenience fee.
COVERAGE PERIOD means the period described in the Service Description, unless that is modified by other terms of the SERVICE AGREEMENT.
COVERAGE HOURS means the hours of the days within the COVERAGE PERIOD where YOU can request REMEDIAL SERVICE, PREVENTATIVE MAINTENANCE, report BREAKDOWNS and the hours of the days within the COVERAGE PERIOD. COVERAGE HOURS are identified on face of this SERVICE AGREEMENT. Outside of the COVERAGE HOURS, REMEDIAL SERVICE may be performed upon request at OUR then current overtime rates.
COVERED EQUIPMENT means the equipment that is listed in Services Description. 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 50% tube life remaining at the Coverage Start Date (as determined in OUR sole discretion); (iii) in the case of MRI machines, the equipment has less than 80% Helium level at the Coverage Start Date; OR if YOU are in breach of this SERVICE AGREEMENT.
COVERED SERVICE means the PREVENTIVE MAINTENANCE and REMEDIAL SERVICES prescribed for each piece of COVERED EQUIPMENT under this SERVICE AGREEMENT.
AGGREGATE DEDUCTIBLE means the amount that YOU must pay for repairs to YOUR COVERED EQUIPMENT resulting from BREAKDOWNS before OUR obligation to pay commences. YOUR AGGREGATE DEDUCTIBLE is the total amount of all deductibles which exist for equipment under this SERVICE AGREEMENT or other service agreements with US. This amount shall automatically be adjusted as equipment is added or removed from service agreements with US. YOUR deductible for the COVERED EQUIPMENT, if any, is listed on the First Page of 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 . The coverage under SERVICE AGREEMENT shall go into effect on the Coverage Start Date, however, if one is specified, the coverage will initiate at an agreed upon date. The SERVICE AGREEMENT is not transferable by YOU, in whole or in part, or as to any piece of COVERED EQUIPMENT, without OUR consent, which can be withheld 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 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%.
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 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 REMEDIAL SERVICES under this SERVICE AGREEMENT.
E. LIMITS OF LIABILITY
1. OUR maximum obligation for any covered BREAKDOWN for a piece of COVERED EQUIPMENT during each year (or, if the term is less than one year, during the term) of the SERVICE AGREEMENT is the least of (i) the cost of replacing the individual piece of COVERED EQUIPMENT with a comparable piece of equipment (as described in the next paragraph), (ii) the cost to repair the piece of COVERED EQUIPMENT to its normal operating condition; and (iii) the limit of liability shown in Equipment Description for the specific piece of COVERED EQUIPMENT.
2. If WE elect, in OUR sole discretion, to replace COVERED EQUIPMENT, WE will use OUR reasonable efforts to replace it with comparable equipment. In all cases, WE will determine product comparability in OUR sole discretion. WE are not responsible for upgrades, and WE are not responsible for the cost of construction, carpentry, or other modifications to YOUR facilities that may be required in order to transport/rig or install replacement equipment.
3. Replacement of a piece of COVERED EQUIPMENT constitutes complete fulfillment of OUR obligations under this SERVICE AGREEMENT, and releases US from all future obligation with respect to the replaced COVERED EQUIPMENT for the remainder of the COVERAGE PERIOD. WE may, but are not required to, offer YOU a quote to amend this AGREEMENT to add the replacement Equipment to the coverage for the remainder of the COVERAGE PERIOD.
4. 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.
5. OUR limit of liability for ALL claims, demands, lawsuits, arbitrations or other disputes under this SERVICE AGREEMENT is equal to the SERVICE AGREEMENT AMOUNT actually received by US.
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, 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 or negligent 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.
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, WE are not responsible for any repair/replacement within one year of another glassware replacement.
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, OR 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 timeframe 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 cryogen beyond 1,000 liters per contract year.
33. 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,
34. Any COVERED SERVICE that is performed outside of the COVERAGE HOURS.
35. The costs of expedited shipping for parts related to COVERED SERVICE outside of COVERAGE HOURS
G. 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.
5. If YOU fail to make a required payment when due (for this SERVICE AGREEMENT or any other contract for goods or services with US), WE reserve the right to suspend performance of OUR obligations under this and any other contract (whether existing now or in the future) for goods or services between YOU and US until the payment(s) becomes current. YOU agree to pay interest in the amount of 1.5% per month (or the highest rate legal rate) may be charged on all amounts 90 days past due.
H. INDEMNIFICATION
1. YOU agree to release, indemnify, defend 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 defend, with counsel suitable to US, and 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.
I. 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 any time, 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 SERVICE AGREEMENT. If this SERVICE AGREEMENT is canceled, YOU will be responsible to pay any of the annual SERVICE AGREEMENT AMOUNT earned up to the date of cancellation or the fair market value of any REMEDIAL SERVICES provided by US during the contract year, whichever is greater. For the purposes of providing a fifteen (15) day trial period, and this section only, WE will not be considered to have earned the SERVICE AGREEMENT AMOUNT until after the fifteenth day after the Coverage Effective Date. This paragraph does not affect OUR right to terminate coverage under this SERVICE AGREEMENT as provided in Section G.
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. 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 addition 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.
8. Remote Connection.
a. At OUR discretion, WE may elect to establish the ability to remotely access the COVERED EQUIPMENT through some networked connection (which may or may not include a hardware unit at the COVERED EQUIPMENT’s location), for the purposes of system monitoring, diagnostics and repair.
b. In the event WE desire to establish remote connection, WE agree to: Provide any hardware, the installation, setup, or maintenance that is required to create and maintain the connection; Secure the connection with industry standard protections for the transmission of data; Prevent any transmission of Protected Health Information under HIPAA and; Access the COVERED EQUIPMENT only for the designated purposes. YOU agree to: Provide reasonable physical and remote access (if necessary) to establish and maintain the remote connection; Provide an individual with network and information technology background to assist with the network issues from the COVERED EQUIPMENT’s facility; Safeguard the remote connection and any physical equipment remaining with the COVERED EQUIPMENT and; Grant US unlimited remote access during a BREAKDOWN and for the purposes of system monitoring, diagnostics and repair.
c. On receipt of notice from YOU, WE will terminate any ongoing remote connection under this SERVICE AGREEMENT. On receipt of notice from US, YOU will facilitate the return shipment of any physical hardware remaining at the COVERED EQUIPMENT’s location.
9. Assignment.
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. 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.
10. 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.
11. 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.
12. GOVERNING LAW; DISPUTE RESOLUTION; JURISDICTION. The AGREEMENT shall be construed and governed according to the laws of the State of Michigan. 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 OUR main offices in Holt, Michigan, 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's award shall include costs, reasonable attorney’s fees and interest 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.
13. Scope of Coverage. This SERVICE AGREEMENT is not valid as to COVERED EQUIPMENT located anywhere outside of the Continental United States, Alaska, and Hawaii.
14. Abandonment: There can be no abandonment of the COVERED EQUIPMENT by YOU to US.
15. 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.
16. 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.
17. 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.
18. Covered Equipment Use. YOU represent that the COVERED EQUIPMENT is only in service scanning patients Monday through Friday, between the hours of 7 a.m. and 7 p.m. and that its use will not exceed that during the COVERAGE PERIOD, unless specifically provided for in this SERVICE AGREEMENT.
J. Equipment Performance Guarantee (UPTIME)
1. If a percentage of uptime is guaranteed in the Service Description, WE provide the following “uptime” guarantee for the COVERED EQUIPMENT for each contract year that the COVERED EQUIPMENT is subject to this SERVICE AGREEMENT. Uptime is calculated using 24 hours a day, 7 days a week, and 365 days a year; there are 8760 hours in the year. Uptime is defined as those hours when the COVERED EQUIPMENT is not DOWN. The system is determined to be DOWN when it is experiencing a BREAKDOWN which prevents clinical use. YOU should contract US immediately if this type of BREAKDOWN occurs.
2. The hours DOWN starts when YOU notifyUS of the BREAKDOWN and ends when any REMEDIAL SERVICE is completed and the COVERED EQUIPMENT is available for clinical use. There are conditions under which the COVERED EQUIPMENT shall not be considered DOWN. These conditions include (but are not limited to) interruptions in clinical use due to:
a. Scheduled Preventative Maintenance and related services;
b. YOUR failure to perform an On-Going Responsibility Under This Service AGREEMENT;
c. YOUR failure to perform YOUR Responsibilities In the Event of a Breakdown;
d. Circumstances where a BREAKDOWN is excluded from COVERED SERVICES;
e. Equipment BREAKDOWNS due to improper system administration, i.e. ignoring proper backup procedures;
f. Any time when OUR access to the COVERED EQUIPMENT is restricted, whether physically, electronically or time-wise (e.g. after hours repairs).
3. Uptime percentage is calculated as 8760 hours minus hours DOWN, divided by 8760. Whether WE meet the Equipment Performance Guarantee will be determined over each year of the term. For each whole percentage point less the Uptime Percentage is determined to be than the percentage noted in the Service Description for each piece of equipment,WE will extend the COVERAGE PERIOD by seven (7) days, for a maximum of 8 weeks (e.g. If the percentage promised on the first page was 98% and the Uptime Percentage was 96.5, that would lead to an extension of seven (7) days; 95.1% would lead to an extension of fourteen (14) days).
K. Security Agreement
For the exchange of the valuable and mutual consideration contained in this SERVICE AGREEMENT, YOU hereby grant US a security interest in the COVERED EQUIPMENT. This security interest shall remain in place until the payment of the SERVICE AGREEMENT AMOUNT, any applicable interest, late fees, and any other amounts due to US arising out of the SERVICE AGREEMENT have been received by US and YOU have completely performed all YOUR obligations under the Service Agreement. The collateral subject to this security agreement is the COVERED EQUIPMENT described in this SERVICE AGREEMENT and all present and hereafter acquired equipment and accounts of YOURS wherever located. YOU authorize US to file a financing statement describing the collateral in any relevant jurisdiction. The occurrence of any of the following is an event of default: (i) failure to pay any required payment, (ii) movement of the COVERED EQUIPMENT from the location designated on the SERVICE AGREEMENT, (iii) any disposition of the COVERED EQUIPMENT, (iv) any significant change in the COVERED EQUIPMENT’s condition or (v) if YOU becomes insolvent, file for reorganization or bankruptcy, makes an assignment for benefit of creditors, if a receiver or trustee is appointed for any of YOUR assets or any other type of insolvency proceeding or formal or informal proceeding for the dissolution, liquidation, or winding up of YOUR affairs are commenced. Upon the occurrence of an event of default under this section, WE shall have all the rights of a secured party under the Uniform Commercial Code as in effect in the state of Michigan, including the right to collect reasonable attorney fees and any other costs incurred in exercising those rights. Upon the occurrence of an event of default under this section, without limiting the OUR aforementioned rights, YOU hereby grant US an irrevocable license to enter upon the COVERED EQUIPMENT’s location, without the order of any court, to disable and/or remove the COVERED EQUIPMENT without any obligation to repair or restore the location. Upon completion of YOUR obligations under this Agreement, the security interest shall be released.
L. Automatic Renewal
Unless otherwise agreed, this SERVICE AGREEMENT will automatically renew at the end of the initial COVERAGE PERIOD for one year (unless the initial COVERAGE PERIOD is less than one year, in which case the renewal will extend the COVERAGE PERIOD for that lesser length). The SERVICE AGREEMENT AMOUNT, increments, and due dates will remain during the renewal period. The COVERAGE PERIOD will not automatically renew after the first renewal/extension of the COVERAGE PERIOD. By providing written notice to US during the sixty (60) days prior to expiration of the initial COVERAGE PERIOD, YOU can opt out of the automatic renewal.
