1. General
Along with the Purchase Agreement Proposal, these terms and conditions constitute the contract (the “Agreement”) between the parties to purchase/sell the system and/or mobile trailer listed in the Purchase Agreement Proposal (the “Equipment”) and will govern the rights and responsibilities of the parties. To the extent that any rights or responsibilities of the parties are addressed in the Purchase Agreement Proposal, those terms will supersede these terms and conditions. The word "Buyer" as used herein refers to Block Imaging International, Inc., Nihon Block Imaging, KK, Block Imaging, SAS, or Block Imaging Parts & Service, LLC, as indicated on the Proposal. Seller, as used herein, refers to the party identified on the first page of the Proposal. The parties agree and acknowledge that Buyer enters into this Agreement for the purpose of resale; time is of the essence.
2. Acceptance of Agreement
Any acceptance of this Agreement is expressly limited to the terms and conditions of this Agreement, to the exclusion of any different, inconsistent, and additional terms. This Agreement will become effective by either full execution or by Seller’s acceptance of Buyer’s payment under the terms of this Agreement.
3. Price and Payment Terms
Unless otherwise agreed, the Total Purchase Price in the Agreement includes any applicable taxes and will be payable on Net 30-day terms.
4. Inspection and Acceptance of Equipment
Buyer has the right to an initial inspection. If during the initial inspection, Buyer determines the Equipment or its location/circumstances are not acceptable for any reason, with notice to the Seller, this Agreement will be considered terminated, and Seller will return all funds paid under this Agreement. Notwithstanding any approval at the time of initial inspection, the Equipment will not be considered accepted until Seller’s obligations under this Agreement are complete and Buyer has the opportunity to make a final inspection. Upon final acceptance, any balance of the Purchase Price remaining will then be due pursuant to the terms of this Agreement. Approval at initial inspection or acceptance after final inspection does not waive Seller’s responsibilities under section 6 of this Agreement.
5. Equipment Description
All equipment references in this Agreement will be interpreted with the meaning the manufacturer of the Equipment gives those terms. Buyer purchases Equipment based on Seller's assurance that Equipment is complete, is not the subject of open recall or FDA enforcement action, and is in reasonable condition for its age. The Equipment will be presented to Buyer in the same condition as when inspected by Buyer, with no change in condition having occurred without prior written approval from Buyer. In the event an unauthorized change to the system has occurred, Buyer may reject the Equipment and it will be deemed that delivery never occurred. In that event, Seller agrees to return all funds paid under this Agreement and will pay Buyer’s incidental and consequential damages arising out of such non-delivery, foreseeable and unforeseeable. Those damages will include, but are not limited to: increased costs in providing replacement equipment to Buyer’s Client, lost profits, and any other reasonably incurred costs.
6. Seller’s Representations and Warranties
Except as expressly set forth in this Agreement, Seller represents and warrants that the Equipment: (i) is fully operational and functioning at or above the manufacturer’s specifications, (ii) includes unadulterated manufacturer tags and serial numbers, (iii) operates in conformity with Original Equipment Manufacturer specifications for system performance and image quality, (iv) conforms to the specifications, and descriptions in this Agreement, (v) is merchantable and fit for patient scanning, (vi) is free and clear of all liens, claims, encumbrances and other restrictions (including restrictions on software use), (vii) is available for deinstallation (Monday through Friday during normal business hours) no later than the date for removal, (viii) is free from any patient medical history, (ix) be FDA approved, and acceptable for importation and patient use in the United States and Europe, and (x) contains fully licensed software. Seller warrants that all services furnished under the Agreement will (i) be provided in a professional manner, (ii) be performed by qualified personnel, (iii) conform original equipment manufacturer standards, (iv) comply with federal, state, local or regulatory guidelines, and (v) be provided in a manner that does not infringe or misappropriate any third party's intellectual property rights, or patient information. Failure of the Equipment or service rendered to meet the warranties provided above will constitute a Default under this Agreement.
7. Removal
If the IncoTerm is ExW, Buyer is responsible for removal and Buyer enters the Equipment’s location and removes the Equipment at Seller’s direction. Seller will provide clear egress for the Equipment from its location, including but not limited to any costs for wall/door removal, roof hatch removal, landscaping and/or grounds repairs. Buyer is not responsible for substandard floors or access ways, engineering assessments, or shoring. Seller will pay for any reasonable costs for removal delay not attributable to Buyer.
8. Crating
If crating services are included in the Agreement, Seller will take all care to secure/protect the Equipment for transit. Seller will be responsible for damage to the Equipment from inadequate crating.
9. Delivery
If Delivery services are included in the Agreement, Seller will make shipments in accordance with Buyer’s instructions and in the best interests of the Equipment. Unless the Agreement expressly states otherwise, all goods will be shipped DDP Holt, MI – Buyer’s warehouse (INCO Terms 2010). Buyer only assumes the risk of loss to the Equipment upon Seller’s completion of their obligations under the shipping terms.
10. Transfer of Title
Title, free and clear of any liens or encumbrances, to the Equipment listed in the Agreement will transfer to Buyer when payment is completed under this Agreement.
11. Modification of Agreement
This Agreement, together with all attached written instructions, contains the complete and final agreement between Buyer and Seller. No additional, different, or modified terms will be binding upon Buyer unless agreed to by Buyer in writing.
12. Buyer’s Remedy for Default
Buyer may, by written notice to Seller, terminate the Agreement if Buyer learns of any Default by Seller. As an alternate remedy, and in lieu of termination for Default, Buyer, at its sole discretion, may elect to waive other deficiencies in Seller’s performance, in which case an equitable decrease in the Agreement price will be negotiated. Buyer’s remedies under this section are in addition to any other rights and remedies provided by law or under this Agreement.
13. Waiver of Breach
The failure to enforce a breach or Default under this Agreement will not be interpreted to constitute a waiver of any subsequent breach or default and will not alter the rights of the parties.
14. Assignment
Except that Buyer’s customers may enforce Seller’s representations and warranties against Seller, this Agreement will not be assigned by either party, including in the case of merger or acquisition of greater than 50%, without the other party's prior written consent, which will not be unreasonably withheld.
15. Indemnification
Seller will defend, indemnify, and hold harmless Buyer against any claims for damages, to the extent caused by Seller’s negligence, willful conduct, or breach of any of its covenants, representations, or warranties in this Agreement.
16. Non-Circumvention
Seller acknowledges that Buyer has a business expectancy from Buyer’s customers and agrees not to circumvent Buyer with respect to the sale of this Equipment or other equipment to Buyer’s customers without Buyer’s consent. Seller agrees to pay Buyer 25% of the amount of any transaction which takes place between Seller and Buyer’s customers as a finder’s fee and/or liquidated damages for the lost business expectancy of Buyer.
17. Governing Law; Dispute Resolution; Jurisdiction
The Agreement will be governed according to the laws of the State of Michigan, United States of America. Any conflict-of-laws provisions that would require application of another choice of law (including the United Nations Convention on Contracts for the International Sale of Goods), are excluded. The parties will consult and negotiate with each other in good faith and attempt to reach a mutually satisfactory resolution to any disputes. If they do not reach such a solution, all claims relating to the Agreement, or any other matter between the parties, will be finally resolved by binding arbitration, conducted in English, using a single arbitrator. Seller waives the right to commence any action outside of this arbitration. Unless otherwise agreed by Buyer: (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 Buyer’s main offices; (4) the arbitrator may award attorneys' fees and costs to the substantially prevailing party; and (5) the award of the arbitrator will be enforceable in any court of competent jurisdiction.
