In exchange for payment of the subscription fee and other amounts due, and otherwise performing their other obligations under this Agreement, Block Imaging International, Inc. (“Service Provider”) agrees to make the Equipment available to the party under the “Subscriber” heading (“Subscriber”) on the Subscription Agreement (“Agreement”), subject to the following terms and conditions.
1. GENERAL
1.1. These terms and conditions constitute an integral part of the Agreement between the parties and shall govern the rights and responsibilities of the parties. To the extent that any rights or responsibilities of the parties’ are addressed in the signed portion of this Agreement, those terms will supersede these online terms and conditions. The parties reject the inclusion of any additional or different terms provided for in any purchase order or similarly transmitted document from Subscriber. Service Provider’s acceptance of this Agreement is made expressly conditional on Subscribers’ acceptance of these terms and conditions. Any departure from these terms and conditions must be in writing and agreed to by both parties.
1.2 This Agreement is not enforceable until system availability is confirmed and until this agreement is signed by both Service Provider and Subscriber.
1.3 Subscriber acknowledges that this is a commercial and not a consumer transaction.
1.4 Subscriber agrees to complete and execute any reasonable documentation or agreements required by Service Provider or its partners to facilitate this subscription.
2. TERM
2.1. The Term is defined for each piece of Equipment in this Agreement. Subscriber agrees to pay the subscription payments as set forth in this Agreement. At the completion of the Term, Subscriber will make the Equipment available for retrieval.
3. EQUIPMENT
3.1. Subscriber will be responsible to prepare their facility to integrate and safely operate the Equipment. The costs of delivery, installation, setup, deinstallation, removal, pickup and return shipping of the system will be paid by the Subscriber. The Equipment will be deemed “Accepted” unless written rejection is received with 24 hours of Subscriber’s receipt of the Equipment and/or first use, whichever occurs first. Equipment may only be rejected for failure to produce clinically useable images.
4 PAYMENT
4.1. Subscriber hereby agrees to pay Service Provider (or Service Provider’s designated payee) the subscription fee throughout the Term. Payments are due in advance of each month of the Term. Charges for shipping and any Security Deposit are due upon execution of this Agreement.
4.2. Subscriber agrees to pay a late charge of up to five percent (5%) of any payment not paid when due as compensation for Service Provider's internal operating expenses arising as a result of such delayed payment. Subscriber also agrees to pay interest equal to 1 ½ % per month, not to exceed the maximum amount allowed by law, on any unpaid amounts. Subscriber shall not be entitled to any abatement of, reduction of, or setoff against the subscription fee for any reason whatsoever.
5 SECURITY DEPOSIT
5.1. Subscriber agrees to pay any Damage and Security Deposit listed on this Subscription Agreement. For the purpose of securing all of the Subscriber’s obligations under this Agreement, Subscriber grants Service Provider a security interest in this security deposit. Any such security deposit may be commingled with other funds and shall be held without interest to Subscriber. Upon default of this Agreement, Service Provider may, but shall not be obligated to, apply any such security deposit to any obligation of Subscriber of this Agreement in which event Subscriber shall promptly restore the amount thereof on demand. Upon compliance of Subscriber with all the terms of this Agreement, and upon the safe return of the Equipment to Service Provider, Service Provider shall refund Subscriber’s security deposit, less any amount withheld to repair damage to the Equipment or any other amount owed under this Agreement.
6. LOCATION PREPARATION
6.1. Any obligation of installation or setup on Service Provider shall be subject to Subscriber providing a facility appropriate for the use of the Equipment. Subscriber’s obligations include, but are not limited to 1) providing adequate and safe power supply (to which the Equipment must remain connected until retrieved by Service Provider); 2) any radiation shielding or magnetic shielding; 3) any labor or materials for construction matters (plumbing, carpentry, electrical, masonry, wiring, and other facility preparation); and 4) providing clear access/egress to move the Equipment to/from the desired location (including wall/door removal). Subscriber shall complete all site preparations prior to the arrival of the Equipment. After the conclusion of this Agreement, Subscriber is responsible to return the site to original condition, if Subscriber desires. Any advice/information Service Provider provides regarding the location preparation is given as a courtesy, and is not to be relied on in the absence of contractor, engineer, architect or regulatory verification, which shall be Subscriber’s obligation to acquire.
6.2 Subscriber is also responsible for providing a compatible network configuration if network connectivity is desired. Compatibility of Subscriber’s network will be determined in Service Provider’s sole discretion. Work performed assisting with Subscriber’s network will be charged to Subscriber on a time and materials basis.
7. LOCATION AND USE OF EQUIPMENT
7.1. The Equipment shall be kept at Subscriber’s address specified on the Agreement and shall not be removed from that location without Service Provider’s prior written consent. The Equipment shall be kept by Subscriber in its possession and control and used by the Subscriber and all other persons with due care and conformity with all applicable laws, regulations, requirements, or any insurer or government. Subscriber shall safeguard and protect the Equipment, and follow any of Service Provider’s instructions.
7.2. In the event possession or the use of the Equipment requires licensing by any governmental authority, Subscriber shall, at its own expense, obtain and maintain such license continuously during the term of this lease.
7.3. Subscriber is responsible for all technical staff, medical supplies, film, processing, long term image storage media, contrast media, etc. as may be required to perform examinations. Subscriber is responsible to keep the Equipment connected to a satisfactory power supply until the Equipment is recovered by Service Provider. Failure to do so could result in damage to the Equipment, the costs of which Subscriber agrees to pay.
8. MAINTENANCE/REPAIR
8.1. Subscriber shall exercise due and proper care in the use of Equipment. Breakdowns of the Equipment shall be addressed under the manufacturer’s warranty and maintenance provision. Service Provider will provide reasonable support for the Equipment, but coverage of a breakdown is solely within the discretion of the manufacturer. Service Provider will have no obligation to maintain or repair Equipment breakdowns that are not covered by the manufacturer’s warranty provisions. Equipment downtime for maintenance and repairs is normal and does relieve Subscriber from the obligation to pay the subscription fees or perform its other obligations.
9. DAMAGE TO THE EQUIPMENT
9.1 Subscriber shall be responsible for any damage to the Equipment during the Initial or any extension term, including but not limited to damage cause by: 1) Acts or omissions; 2) Subscriber combining the Equipment and another product; 3) any alteration or improper storage, handling, use or maintenance of any part of the Equipment; 4) anything external to the Equipment, including building, structural deficiency, power surge, fluctuation or failure; 5) vandalism, accident, lightning, earthquake, fire, smoke or water damage to the Equipment; and/or 6) the cleaning or decontamination of the Equipment after contact with blood or other potentially infectious materials or liquids.
9.2 Subscriber shall bear the entire risk of loss, theft, destruction or damage of the Equipment from any cause whatsoever and no loss, theft, destruction or damage of the Equipment shall relieve Subscriber of the obligation to pay the subscription fee or any other obligations under this lease. In the event of loss, theft, or damage of any kind to the Equipment, Subscriber, at the option of Service Provider, shall place the Equipment in good condition and repair, or if the Equipment is determined by Service Provider to be lost, stolen, destroyed or damaged beyond repair and if requested by Service Provider, purchase the Equipment at its fair market value immediately preceding the event causing the loss.
10. INSURANCE
10.1 Insurance: Subscriber shall maintain, at its cost, comprehensive public liability insurance coverage for any current or future claim, in an amount not less than that amount required by appropriate law, and if none, then not less than $1,000,000.00 with respect to the activities of the Subscriber, and shall name the Service Provider as an additional insured. The Subscriber will also maintain insurance covering any loss to the Equipment. This insurance coverage will be for the full replacement value in an amount not less than $500,000.00 on an “All Risk” or special perils coverage form, with mechanical breakdown and off premise power interruption coverage added by endorsement or on a separate boiler policy. Service Provider will be named as loss payee on the equipment policy. The proceeds of such coverage, in the event of loss or damage, shall be applied at the Service Provider’s option, to the repair or replacement of the Equipment affected. Subscriber shall provide to Service Provider a certificate evidencing liability and equipment insurance.
10.2 The physician who interprets, reports, injects or supervises the injection of contrast material, and performs other ancillary medical service on patients related to the Equipment shall maintain professional liability insurance in sufficient for any current or future claims arising from those activities.
11. WARRANTY
11.1. So long as Subscriber is not in default under the terms of the lease, Service Provider assigns to Subscriber any warranty rights it has as Service Provider of the Equipment against the manufacturer or supplier or any other person.
11.2. SERVICE PROVIDER MAKES NO OTHER WARRANTY AND DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSES. THE EQUIPMENT IS OFFERED IN AS-IS CONDITION.
12. LIMITATION OF LIABILITY
12.1. SERVICE PROVIDER SHALL NOT BE LIABLE FOR ANY LOSS OF USE, REVENUE OR ANTICIPATED PROFITS, OR FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE LEASE OR USE OF THE EQUIPMENT. This provision does not affect third party claims for personal injury arising as a result of Service Provider's negligence or product defect. THE FOREGOING IS A SEPARATE, ESSENTIAL TERM OF THIS AGREEMENT AND SHALL BE EFFECTIVE UPON THE FAILURE OF ANY REMEDY, EXCLUSIVE OR NOT.
12.2. SUBSCRIBER UNDERSTANDS THE INHERENT RISKS AND DANGERS ASSOCATED WITH THE USE OF MEDICAL IMAGING EQUIPMENT AND SHALL BE RESPONSIBLE FOR TRAINING ITS EMPLOYEES AND AGENTS IN SAFE USE AND HANDLING OF SUCH EQUIPMENT.
12.3 THE MAXIMUM LIABILITY THAT SERVICE PROVIDER SHALL BE RESPONSIBLE FOR IN ANY EVENT IS THE SUBSCRIPTIO FEE UNDER THIS AGREEMENT.
13. FORCE MAJEURE
13.1. Service Provider will make every effort to complete its obligations under this Agreement but shall not be liable for any loss or damages for delay in delivery or inability to install due to causes beyond its reasonable control, including, but not limited to, acts of civil or military authority, priorities, fire, strikes, floods, epidemics, quarantine restrictions, war, riots, delay in transportation, car shortages, acts of government or compliance with any governmental rules or regulations or the like. Should such a delay occur, Service Provider may reasonably extend delivery or production schedules, or at its option, cancel the order in whole or part without liability other than to return any unearned deposit or prepayment.
14. INDEMNIFICATION
14.1. Subscriber shall indemnify defend and hold harmless Service Provider its officials, agents, representatives, and employees from any loss, claim, liability, and expense (including reasonable attorney’s fees and expenses of litigation) including without limitation claims for personal injury, death, property damage or equipment damage or loss where the injury, death, damage or loss arises out of or is in any way related to the Equipment, or its manufacturer, selection, purchase, delivery, possession, use or return, or recovery of claims under any insurance policies, or, where the claim is based in the whole or in any part on, or is in any way related to, any act or omission by Subscriber or Subscriber’s subcontractors, agents, employees or delegates.
14.2. Service Provider shall indemnify and hold harmless Subscriber its officials, agents, representatives, and employees from any loss, claim, liability and expense (including reasonable attorney’s fees and expenses of litigation) including without limitation claims for personal injury, death or equipment damage or loss where the injury, death, damage or loss arises out of or is in any way related to any act or omission by Service Provider or Service Provider’s subcontractors, agents, employees, or delegates.
15. TITLE
15.1. The title to all Equipment shall remain with the Service Provider, subject only to Subscriber’s right of possession and use during the term of this lease.
16. TAXES
16.1. Subscriber shall report and promptly pay any and all taxes related to this Agreement, including but not limited to, any and all sales and use taxes, personal property tax, fees and assessments due, assessed or levied against the Equipment or the delivery, leasing, possession, use or operation thereof, or upon the rentals or receipts with respect to this Agreement including, without limitation, all license and registration fees and all use, personal or real equipment excise gross receipts, franchise, stamp, or other taxes, imports, duties and charges, together with any penalties, fines or interest thereon, imposed against this lease and any lease schedules. If applicable, Subscriber will provide a copy of its Tax Exempt Certificate with a signed copy of this agreement.
16.2. Subscriber shall reimburse Service Provider, or its assigns, upon receipt of written request for reimbursement for any taxes charged to or assessed against Service Provider or its assigns, and Subscriber will, on request of Service Provider submit to Service Provider written evidence of Subscriber’s payment thereof, and in any case any report or return is required to be made with respect to any tax, Subscriber will make such report or return in such manner as will show the ownership of the Equipment by Service Provider, and send a copy of thereof to Service Provider.
17. DEFAULT
17.1. In the event that any payment hereunder shall have become due and shall remain unpaid for seven (7) days, or if Subscriber becomes insolvent, ceases to do business as an ongoing concern, makes an assignment for the benefit of creditors, seeks any arrangement or composition with its creditors under any statute or otherwise, or if a petition for a receiver of bankruptcy is filed by or against Subscriber, the Service Provider may, at the Service Provider’s option, declare Subscriber to be in default and exercise any or all of the following rights: 1) Declare all sums due and to become due hereunder to be due and payable forthwith; 2) Sue at law or in equity to enforce performance of this lease or to recover damage for breach thereof (as an exception to the arbitration clause below). 3) Take and hold possession of the Equipment and render the Equipment unusable, and for this purpose remove the Equipment from any premises where the same may be located without liability to Service Provider for any damage caused thereby. Subscriber grants an irrevocable license to Service Provider for immediate access to the Equipment to remove it at the termination of this Agreement or if Service Provider declares Subscriber to be in default.
18. TERMINATION
18.1. This agreement shall terminate upon the occurrence of any of the following events: 1) at Service Provider’s election upon an event of default described above; 2) upon thirty (30) days prior written notice of termination being served by Service Provider upon the Subscriber but not less than the Term of this agreement; or 3) upon expiration of the Tem of this Agreement
18.2. Subscriber is responsible for the cost of returning the Equipment to Service Provider upon termination, or other conclusion of this Agreement.
19. ASSIGNMENT
19.1. Subscriber hereby consents to any assignment by Service Provider and any reassignment of this Agreement, the subscription fee due hereunder, or any or all of Service Provider’s rights, title, or interest in this Agreement, with or without notice. Neither this Agreement nor any of Subscriber’s rights hereunder shall be assignable by Subscriber either by its own act or by operation of law, without the prior written consent of the Service Provider.
20. DEFAULT; ATTORNEYS’ FEES.
20.1. Service Provider shall be entitled to exercise all rights and remedies under law upon breach by Subscriber of any terms or conditions herein. In the event that legal or other action is required to enforce Service Provider’s’ rights hereunder, Subscriber agrees to reimburse Service Provider on demand for its reasonable attorneys’ fees and its other related costs and expenses.
21. MODIFICATION
21.1. This agreement may not be changed, modified or amended except in writing signed by duly authorized representatives of the parties.
22. GOVERNING LAW; DISPUTE RESOLUTION; JURISDICTION.
22.1. This Agreement and the terms and conditions of the Agreement are governed according to the laws of the State of Michigan 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 an acceptable resolution, then, upon notice by either party to the other, all disputes, claims, questions, or differences regarding the Agreement, or any other disputes between the parties, will be finally resolved by binding arbitration, conducted in the English language using a single arbitrator. Unless otherwise agreed by Service Provider: (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 will be conducted at Service Provider’s main offices; (4) the arbitrator shall award reasonable attorney’s fees and interest when appropriate; and (5) the award of the arbitrator will be enforceable in any court of competent jurisdiction.
23. INTEGRATION
23.1. THESE TERMS AND CONDITIONS, INCLUDING ANY ATTACHMENTS OR OTHER DOCUMENTS INCORPORATED BY REFERENCE HEREIN, CONSTITUTE THE ENTIRE AGREEMENT AND THE COMPLETE AND EXCLUSIVE STATEMENT OF AGREEMENT WITH RESPECT TO THE SUBJECT MATTER HEREOF.
24. SEVERABILITY
24.1. In the event that any portion of this agreement is held to be unenforceable or void, such provision shall be deemed to be several and shall in no way affect the validity of the remaining terms and conditions of this agreement.
25. JOINT AND SEVERAL LIABILITY
25.1. If more than one person or entity is named as Subscriber in this agreement, the liability of each shall be joint and several.
