Block Imaging Parts & Service, LLC. (“Block”) will provide the preventative maintenance and parts exchange program described below to the customer (“Customer”), subject to these online terms and conditions and those on the face of the Critical Component Agreement and any exhibits (together, the “Agreement”).
1. BASICS OF THE PROGRAM. For the consideration listed on the face of the Agreement:
a. Block will perform the number and type of preventative maintenance services described.
b. Customer will repair and maintain the equipment according to the manufacturer’s recommended guidelines, including any maintenance, recalls, updates or upgrades. Block offers and may provide repair services upon request on a Time and Materials basis.
c. Block will provide a parts exchange program for the identified component(s) (“Component(s)”), at the location described ("Equipment Location”), on an exchange basis, in the following manner:
i. If Block receives notice that a Component has failed, Block will: 1) deploy a replacement component (“Replacement Component”) and an engineer to the Equipment Location; 2) in Block’s reasonable discretion, determine the nature of the equipment’s issues (at least as it relates to the Component’s possible failure); and 3) if Block determines the Component failed by reason of a failure within the Component and that the equipment is operating below the manufacturer’s specifications for image quality and performance (“Failed Component”), Block will install the Replacement Component and take possession of the Component.
ii. If Block determines that the Component failed due to some reason external to the component, Block will not be responsible for replacing the Component and Customer will be responsible for the time and labor costs of any diagnosis and/or repairs, as well as a restocking fee of 5% of the fair market price of the Replacement Component or $1,500 (whichever is less).
iii. Replacement Components may be new or used, with any amount of anticipated remaining life, to be determined in Block’s sole discretion.
iv. Failed Components become property of Block and Block may elect to remove them.
2. EXCLUSIONS. The Parts Exchange Program does not include:
a. Replacement of any parts/components other than those listed on in this Agreement;
b. Replacement of any Component that was not fully functional at the time this Agreement was executed;
c. Replacement of any Component when Customer has not performed one of its obligations under this Agreement;
d. Replacement of any Component if Customer deviates from usage requirements/limits described in the Agreement;
e. Replacement of any components subject to manufacturer’s recall or any components known to have failed prior to the parties entering this Agreement;
f. Any Replacement Components necessary due to (as determined in Block’s sole discretion):
i. Caused by some force or process external to the Component;
ii. Any action or omission of the Customer or Customer’s representative;
iii. The failure of anyone to comply with the manufacturer’s recommendations;
iv. Any alteration, improper staging, handling, use, or maintenance or repair of the equipment;
v. Any combination of the equipment with software or components not recommended by the equipment’s manufacturer;
vi. Damage by an external source, regardless of nature;
vii. Neglect or misuse of the equipment.
g. Any costs of materials, supplies, parts or labor provided by anyone other than Block;
h. The cost of consumable materials, including but not limited to, cushions, knee supports, pads, magnetic media, cryogens, PET calibration sources, film, batteries, or other supply items;
i. The costs of factory reconditioning;
j. The costs of any betterment, upgrades or improvements to the equipment;
k. The costs of lost data and transferring data to Replacement Components;
l. Providing software updates, back-up copies of software, software licenses, or the programming of custom code;
m. The costs of replacing third-party products, including but not limited to, HVAC systems, chiller systems and PACS systems;
n. The costs of repairs made or components replaced by third parties;
o. The costs of downtime, loss of business or replacement/rental systems; or
p. Any Replacement Components after the value of Replacement Components provided by Block exceed the Maximum Expenditure Amount (as defined on Page 1 of this Agreement) in value.
3. Coverage Details and Claims Process:
a. Customer represents and warrants that the information provided to Block in Exhibit A1 are accurate and Block has the right to modify this Agreement (price changes, coverage termination, etc.) if the information contained there proves inaccurate.
b. By mutual agreement, the parties may add or remove equipment from Exhibit A1 throughout the Agreement term.
c. Block will be available to receive notifications from Customer either Mon-Fri 9:00 a.m. to 5:00 p.m. Eastern Time (excluding Block holidays) or 24/7 depending on the level of service that Customer is entitled to under the terms of this Agreement, which is indicated on the first page of the contract. If calling outside those hours, leave a message and your claim will be processed the next business day.
4. CUSTOMER RESPONSIBILITIES. During this term, Customer will:
a. Maintain the equipment according to the manufacturer’s recommendations (including performing preventative maintenance service, which may be done by Block or another qualified engineer);
b. Maintain the Equipment Location and environment (including temperature and humidity control, dust levels, incoming power quality, incoming water quality, and fire protection) in a condition suitable for the operation of the equipment;
c. Protect potentially confidential patient information and ensure data backups are performed;
d. Operate the equipment in accordance to the published manufacturer’s operating instructions;
e. Make normal operator adjustments to the equipment as specified in the published manufacturer’s operator instructions;
f. Provide Block with access to the equipment at all reasonable times to inspect and audit the equipment’s condition, serial numbers, usage, and functionality;
g. In the event a Component is determined to be a Failed Component, the Customer must:
1) Take all reasonable steps to minimize the extent of the damage to the equipment and its components;
2) Report the Failed Component to Block within fourteen (14) days of the diagnosis;
3) Make the equipment available to Block for installation of the Replacement Component at whatever reasonable time Block designates;
5. BLOCK SUPPLIED ACCESSORIES AND REMOTE CONNECTIONS. At Block’s discretion, Block may elect to provide systems or accessories as additions to the equipment for the purposes of extending Component life, system/Component monitoring, diagnostics and repair.
a. In the event Block desires to establish remote connection, Block agrees 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 equipment only for the designated purposes. Customer agrees to: Provide reasonable physical and remote access (if necessary) to establish and maintain the systems and accessories; Provide an individual with network and information technology background to assist with the network issues from the equipment’s facility; Safeguard the remote connection and any physical equipment remaining with the equipment and; Grant Block unlimited remote access for the purposes of system monitoring, diagnostics and repair.
b. On receipt of notice from Customer, Block will terminate any ongoing remote connection under this Agreement. On receipt of notice from Block, Customer will facilitate the return shipment of any physical hardware remaining at the equipment’s location.
c. Nothing in this section will expand or alter the parties’ responsibilities for Component replacement.
6. PAYMENT. Payment for the services contemplated under this Agreement will be made on a monthly basis, in advance of each month of service. The initial payment will be due immediately on consummation of the Agreement. Payment under this Agreement will be made by automatic Electronic Funds Transfers (EFT’s). To accomplish this, Customer will provide their 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 Block’s discretion and will be subject to a convenience fee.
a. Customer may setup ACH or automatic credit card payments with Block, if desired. Customer will pay interest on any amount not paid when due at the lesser of 1.5% interest per month or the maximum rate permitted by the applicable law.
7. EXCUSEABLE DELAYS. Block is excused from performing under this Agreement when Block’s delay is caused by events beyond Block’s reasonable control, including but not limited to, Acts of God, acts of third parties, acts of the Customer, acts of any civil or military authority, fire, floods, war, terrorism, embargoes, labor disputes, acts of sabotage, riots, accidents, delays of carriers, subcontractors or suppliers, voluntary or mandatory compliance with any government act, regulation or request, shortage of labor, materials or manufacturing facilities, unavailability of components.
8. BREACH; DEFAULT. If either party fails to comply with any of the terms and conditions outlined in this Agreement, the following terms will apply:
a. Upon the occurrence of a breach, the non-breaching party may give the breaching party written notice of such failure. If, within fifteen (15) days after receiving such notice, the breaching party fails to (a) correct its performance or (b) commence and continue a good faith effort to correct its breach within a reasonable time period, the party shall be in default of this Agreement. Notwithstanding the forgoing, Block may immediately declare Customer in default under this Agreement, without notice or opportunity to cure, if Customer fails to pay any amount owing under this Agreement or any other agreement with Block on or before the date the payment is due, or if Customer presents any false or fraudulent claim under this Agreement.
b. Block shall have no obligation to provide or pay for anything not covered by this Agreement or for unnecessary or falsely recorded diagnoses, and the existence of any plan or scheme designed to cause Block to do so shall constitute a default of this Agreement for which Block may exercise and prosecute any and all remedies available to Block under this Agreement or by law.
c. Upon default of this Agreement by either party, the other party may terminate this Agreement and/or exercise any other remedies set forth herein.
d. Any claim for damages arising from this 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 (or the earliest time allowed by law).
9. TERM; TERMINATION. This Agreement is non-cancelable by Customer. Customer is responsible for the full Agreement Amount unless Block cancels the Agreement. If Block cancels the Agreement, Customer will be responsible to pay any Agreement Amount earned up to the date of cancelation or the total value of the Replacement Components exchanged, whichever is greater. If Block terminates, Block will refund any unearned Agreement Amount to the extent it is not offset by the value of the Replacement Components provided by Block is greater than the Agreement Amount earned.
10. WARRANTY DISCLAIMER. Blocks full responsibility to Customer is described in this contract. Block provides no warranties under this Agreement. All Replacement Components and services are provided AS IS. No warranty of Merchantability or fitness for a particular purpose applies to anything provided by Block. All other warranties are disclaimed, including any implied warranties.
11. LIMITATION OF LIABILITY. Block’s obligations in the performance of this Agreement for a system/Component are extinguished when the fair market value of the parts and labor provided to the Customer exceed the annual limit of liability per system/Component. Any obligation in the performance of this Agreement or liability for claims of damages of any kind, and Customer’s exclusive remedy with respect to Block’s performance of this Agreement and any liability for claims of damages of any kind under this Agreement is limited to the lesser of:
a. The Agreement Amount stated herein and actually received by Block;
b. The annual limit of liability listed on the Agreement for the individual system/Component(s) at issue.
In no event will Block be liable for any indirect, punitive, incidental, consequential, or special damages, including without limitation, lost revenues or profits, or the cost of substitute parts or services, whether arising from breach of the terms of this Agreement, breach of warranty, negligence, indemnity, strict liability or other tort. Block will have no liability for any assistance or advice Block provides that is not required under this Agreement;
12. TAXES. Customer will not be obligated to pay any federal or state or local tax imposed upon or measured by Block’s income. Any other applicable tax will be invoiced to and payable by Customer along with the Agreement Amount in accordance with the payment terms set forth in this Agreement.
13. ASSIGNMENT. This Agreement may not be transferred or assigned by Customer without Block’s consent, which it may withhold in its sole discretion.
14. INTEGRATION, SURVIVAL, WAIVER, SEVERABILITY. This Agreement constitutes the entire understanding of the parties and supersedes all other agreements or representations, written or oral, regarding this subject matter. No additional terms, conditions, consent, waiver, alteration, or modification will be binding unless in writing and signed by Block’s authorized representative and Customer. Additional or different terms and conditions, whether stated in a purchase order or other document issued by Customer, are specifically rejected and will not apply to the transaction contemplated by this Agreement. No prior course of conduct, course of dealing, proposals, statements, usage of trade or industry standard will be part of this Agreement. Customer’s obligation to pay any money due to Block under this Agreement survives expiration or termination of this Agreement. All of Block’s rights, privileges and remedies with respect to this Agreement will continue in full force and effect after the end of this Agreement. Block’s failure to enforce any provision of this Agreement is not a waiver of that provision or of Block’s right to later enforce each and every provision. If any part of this Agreement is found to be invalid, the remaining part will be effective. Notices or other communications will be in writing and will be deemed served if personally delivered, sent by facsimile or email transmission, overnight mail or courier, return receipt requested and addressed to the party at the address set forth on the face of the Agreement.
15. GOVERNING LAW; DISPUTE RESOLUTION; JURISDICTION. The Agreement shall be construed and governed according to the laws of the State of Michigan. 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. Upon notice by either party to the other, 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 Block: (1) 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) the arbitration will be conducted at Block's main offices in Holt, MI; (3) the arbitrator will be selected from a list using the recommended selection method under the rules applicable to the arbitration proceeding; (4) 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 (5) the award of the arbitrator will be enforceable in any court of competent jurisdiction.
