>> Buy & Sell Now

Contact Us

Terms and Conditions

 

For contracts after April 14, 2023.

The following terms and conditions (“Terms”) apply to all services provided by Block Imaging Parts and Service, LLC ("Service Provider") under a Statement of Work.


1. Services.
1.1 Statements of Work. Service Provider will provide certain services to Client (the "Services") as specified in one or more mutually agreed-upon statements of work signed by both parties ("Statements of Work"). Each Statement of Work will contain, to the extent applicable (i) a description of the services to be performed, (ii) any associated schedules, (iii) the applicable charges (which will be on a time and materials basis unless otherwise specified in the Statement of Work), and (iv) such additional information as the parties mutually agree. These online terms will apply to all Statements of Work agreed upon by Client and Service Provider. In the event of a conflict between any online term and any Statement of Work, the terms of the Statement of Work will prevail.
1.2 Scope of Services. The scope of any services provided by Service Provider to Client will be determined by the applicable Statements of Work which will be created on a per job basis. The foregoing notwithstanding, if Service Provider, at the request of or with notice to Client, performs work that is not covered by a Statement of Work or that exceeds the scope of Services defined in the applicable Statement of Work, such work will be deemed Services, and provided on a time and material basis subject to the online terms located here: https://www.blockimaging.com/terms/pstms858ca, and for which Client will compensate Service Provider pursuant to Section 2.1.
1.3 Parts or Components. If any Statement of Work requires the provision of any parts or components, Client will be responsible for the costs of same, including shipping costs or taxes. Any products provided by Service Provider will be provided subject to the online terms and conditions located at https://www.blockimaging.com/terms/psps7x.

2. Payment for Services and Expenses.
2.1 Payment Terms. Client will pay Service Provider for the Services on the terms defined in the applicable Statement of Work. If no other payment terms are defined, Client will pay the amounts payable to Service Provider hereunder within fifteen (15) days of receipt of invoices submitted by Service Provider. Any invoice remaining unpaid for more than fifteen (15) days will accrue interest at a rate of the lesser of one and one-half (1.5%) percent per month or the highest rate allowed by law. In the event of any good faith dispute regarding a portion of an invoice, the undisputed portion will be paid as provided herein. Upon resolution of the disputed portion, any amounts owed to Service Provider will be paid with interest at the rate set forth above accruing from the date such amounts were originally due.
2.2 Expenses. Unless provided otherwise in a Statement of Work, Service Provider will be reimbursed by Client for all reasonable expenses incurred by Service Provider in the performance of the Services, including, but not limited to, parts, software, manuals, travel and lodging expenses, communications charges and computer time and supplies.
2.3 Taxes. Client will pay for all taxes, including any interest and penalties from any related deficiency, in connection with this Agreement (except taxes based on or measured by Service Provider's net income) including any sales, use, excise, value-added, services, consumption, withholding and other taxes and duties assessed on the provision of services by Service Provider to Client or on Service Provider's charges to Client under this Agreement, including the reimbursement of expenses.
2.4 Payment Default. Upon default of the Payment Terms above, Service Provider may commence collection activities for all sums due or to become due hereunder, all at Client's expense, including but not limited to costs and expenses of collection, collection agency fees, and reasonable attorneys’ fees, and pursue any other remedies permitted by law.

3. Client Responsibilities.
3.1 Client Dependencies. In connection with Service Provider's provision of the Services, Client will perform any tasks or items that are necessary to facilitate Service Provider’s performance of the Services. Some of these tasks and items may be identified as “Client Responsibilities” in this Agreement, but even if a task/item is not identified as a Client Responsibility, if it is reasonably related to accomplishing the Services and not part of the scope of services, it is a Client Responsibility. Client understands that Service Provider's performance is dependent and conditional on Client's timely and effective performance of Client Responsibilities hereunder and timely decisions and approvals by Client. The Statement of Work may also contain assumptions related to the Services ("Assumptions"). Service Provider will be relieved of its responsibilities hereunder to the extent they are dependent upon unfulfilled Client Responsibilities or Assumptions.
3.2 Work Acceptance/Rejection. Services will be considered to be accepted unless Client provides timely notice to Service Provider. If Client believes that a Statement of Work has not been completed, Client will verbally report the deficiency to the Service Provider’s representative before they leave the site and provide written notice identifying specifically the basis for disapproval of the work performed within seven (7) days. Service Provider will be entitled to rely on all decisions and approvals of the Client in connection with the Services.
3.3 Work Environment. Client will provide and maintain a safe and professional facility in which the services are to be performed. Equipment will be accessible, and in a clean and sanitary condition.
3.4 Compliance with Laws. Client will retain responsibility for its compliance with all applicable federal, state and local laws and regulations.
3.5 Governmental Authorizations. Client is responsible for all required licenses, permits or other governmental authorizations, including but not limited to any license or certification needed to use the equipment subject to the Statements of Work. Service Provider will not be liable and Client will not be relieved of its obligations if any authorization is delayed, denied, revoked, restricted or not renewed. Client represents and agrees that it will deal with all equipment and technical data relating thereto in conformity with all applicable US laws and regulations, including copyright and intellectual property laws.
3.6 Miscellaneous Responsibilities. Client is responsible for patient data backup; Service Provider is not responsible for data lost in the course of completing a Statement of Work. Client must provide the proper environment as specified by the manufacturer(s) of the equipment subject to the Statements of Work, including, but not limited to power requirements, temperature, humidity, and dust control.

4. Remote Connection.

4.1 Establishing Remote Connection. At Service Provider’s discretion, Service Provider may elect to establish the ability to remotely access Client’s Equipment through some networked connection (which may or may not include a hardware unit at the Client’s location), for the purposes of system monitoring, diagnostics and repair.
4.2 Responsibilities. In the event Service Provider desires to establish remote connection, Service Provider 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 Client’s Equipment only for the designated purposes. Client agrees 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 Client’s facility; Safeguard the remote connection and any physical equipment remaining with the Client’s Equipment and; Grant Service Provider unlimited remote access during a the performance of the Services and for the purposes of system monitoring, diagnostics and repair.
4.3 Termination. On receipt of notice from Client, Service Provider will terminate any ongoing remote connection under this Agreement. On receipt of notice from Service Provider, Client will facilitate the return shipment of any physical hardware remaining at the Client’s location

5. Warranty.
5.1 Services. Service Provider warrants that its Services will be performed in a workmanlike manner and according to current manufacturer specifications for such equipment. Service Provider agrees to re-perform any Services in breach of this warranty, where such breach is brought to its attention within fifteen (15) business days (or such specific period provided in the applicable Statement of Work) after such Services are performed. CLIENT'S EXCLUSIVE REMEDY, AND SERVICE PROVIDER'S SOLE OBLIGATION, FOR ANY BREACH OF THIS OR ANY OTHER WARRANTY HEREUNDER WILL BE FOR SERVICE PROVIDER, UPON RECEIPT OF WRITTEN NOTICE, TO USE COMMERCIALLY REASONABLE EFFORTS TO CURE THE BREACH AT ITS OWN EXPENSE, AND FAILING THAT, TO RETURN ANY FEES PAID TO SERVICE PROVIDER FOR THE SERVICES RELATED TO SUCH BREACH.
5.2 Warranty Disclaimer. THE PRECEDING IS SERVICE PROVIDER'S ONLY WARRANTY CONCERNING THE SERVICES AND DELIVERABLES, AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND NONINFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM THE COURSE OF DEALING AND PERFORMANCE OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SERVICE PROVIDER SPECIFICALLY DISCLAIMS ANY WARRANTIES OR GUARANTEES WITH RESPECT TO OUTCOME RESULTING FROM THE SERVICES.


6. Limitations on Liability.
6.1 Disclaimer of Consequential Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE LOSS, DAMAGE OR EXPENSES (INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION, LOST BUSINESS, LOST PROFITS OR LOST SAVINGS), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY, UNDER STATUTE OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
6.2 Limitation on Liability. The limit of Service Provider's liability (whether in contract, tort, negligence, strict liability, product liability, under statute, or otherwise) to Client, or to any third party for any activities in any way related to the Services, or this Agreement, for any and all claims, will not exceed the fees and expenses paid by Client to Service Provider for the Services at issue. Client's exclusive remedy for any claim arising out of any breach of this Agreement will be for Service Provider, upon receipt of written notice of such breach pursuant to Section 10.2, to use commercially reasonable efforts to cure the breach at its expense, and failing that, to return the fees paid to Service Provider for the Services related to the breach. Any action related to this Agreement by either party must be brought within one year after the cause of action arose. The allocations of liability in this Section 6 represent the agreed-upon and bargained-for understanding of the parties and Service Provider's compensation for the Services reflects such allocations.


7. Indemnification.
7.1 Client Indemnity. Client Indemnity. Client will defend, indemnify and hold harmless Service Provider from and against any third party claims, demands, loss, damage or expense relating to or resulting from (1) bodily injury or death of any person or damage to real or tangible personal property related to acts or omissions of Client, its personnel or agents; (2) a breach of any warranty, covenant or representation of Client hereunder; or (3) any claim against Service Provider that any content provided by Client infringes any intellectual property or privacy or publicity right of any third party. Client will reimburse Service Provider for all expenses (including counsel fees and expenses) as incurred by Service Provider in connection with any such actions or claims.

8. Termination.
8.1 Termination of Statement of Work. Except as otherwise set forth in a Statement of Work, either party may terminate a Statement of Work if the other party breaches a material representation, obligation, or warranty under the Statement of Work and such breach remains uncured for thirty (30) days after the breaching party's receipt of written notice of the breach. Service Provider may also terminate a Statement of Work if Client fails to pay any amounts due under such Statement of Work within fifteen (15) days of the due date. A Statement of Work will automatically terminate on the date that all services under the Statement of Work are finally performed and all payments due under the Statement of Work are made. Upon termination of a Statement of Work, Client will pay Service Provider for all Services rendered and expenses incurred by Service Provider relating to such Statement of Work prior to the time of termination. In the event of termination by Client, Client will also pay Service Provider for any demobilization or other costs resulting from such early termination.
8.2 Survival. The terms of this Agreement will survive any termination or expiration of this Agreement or any Statement of Work. The terms of Section 10 will survive any termination or expiration of this Agreement for a period of two (2) years.

9. HIPAA

9.1 In the process of performing the services under this Agreement, Service Provider may be required to interface with electronic data stored on Client’s Equipment, systems or computers. Client agree that Service Provider is permitted to access those systems for the purpose of fault diagnosis or repairs and that Service Provider may come into contact with information that is defined as Personal Health Information under the Health Insurance Portability and Accountability Act of 1996. Service Provider will not use or disclose that information other than as permitted under this Agreement, or as provided by law. Service Provider will report incidents that constitute breaches of the Protected Health Information. At the conclusion of the services under this Agreement, Service Provider will return all Protected Health Information to Client or destroy it. Any subcontractors that perform work on Service Provider’s behalf will adhere to the same obligations relating to Protected Health Information.

10. General Terms and Conditions.
10.1 Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction or arbitrator to be invalid, illegal or otherwise unenforceable, the same will not affect the other terms or provisions hereof or the whole of this Agreement, but such term or provision will be deemed modified to the extent necessary in the court's opinion to render such term or provision enforceable, and the rights and obligations of the parties will be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the parties herein set forth.
10.2 Notices. Any notice or other communication given pursuant to this Agreement will be in writing and will be effective either when delivered personally to the party for whom intended, or five (5) days following deposit of the same into the United States mail (certified mail, return receipt requested, or first class postage prepaid), facsimile (with confirmation of delivery) or overnight delivery services (with confirmation of delivery), addressed to such party at the address set forth on the initial page of this Agreement. Either party may designate a different address by notice to the other given in accordance herewith.
10.3 Force Majeure. Neither party will be liable for any delays or failures in performance (other than payment obligations hereunder) due to circumstances beyond its reasonable control.
10.4 Complete Agreement. These terms constitute the entire understanding of the parties and supersede all other agreements, written or oral, regarding its subject matter. No additional terms, conditions, consent, waiver, alteration, or modification will be binding unless in writing and signed by Service Provider and Client. 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 transactions contemplated herein. No prior proposals, statements, course of dealing, course of performance, usage of trade or industry standard will apply to the Services or modify these terms. Each Statement of Work, except as its terms otherwise expressly provide, will be a complete statement of its subject matter and will supplement and modify these Terms the purposes of that engagement only.
10.5 No Third Party Beneficiaries. Client acknowledges that it is entering into this Agreement solely on the basis of the agreements and representations contained herein, and for its own purposes and not for the benefit of any third party.
10.6 No Oral Amendment. Neither this Agreement nor any Statement of Work may be modified or amended except by the mutual written agreement of the parties.
10.7 Right to Subcontract. Service Provider reserves the right to perform any of its obligations under this Agreement and the related Statements of Work through a subcontractor.
10.8 Assignment. This Agreement will not be assigned by Client without Service Provider’s prior written consent. Consent to any assignment is within Service Provider’s sole discretion.
10.9 Governing Law; Dispute Resolution; Jurisdiction. The Agreement will 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 will initially use their best efforts to amicably settle the dispute. To this effect, they will 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, then, 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 Service Provider: (1) the arbitration 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 heard at Service Providers main office 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'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 punitive or exemplary damages; and (5) the award of the arbitrator will be enforceable in any court of competent jurisdiction.

The following terms and conditions (“Terms”) apply to all services provided by Block Imaging Parts and Service, LLC ("Service Provider") under a Statement of Work.

 

1. Services.

1.1 Statements of Work. Service Provider shall provide certain services to Client (the "Services") as specified in one or more mutually agreed-upon statements of work signed by both parties ("Statements of Work"). Each Statement of Work shall contain, to the extent applicable (i) a description of the services to be performed, (ii) any associated schedules, (iii) the applicable charges (which shall be on a time and materials basis unless otherwise specified in the Statement of Work), and (iv) such additional information as the parties mutually agree. These Terms shall apply to any and all Statements of Work agreed upon by Client and Service Provider. In the event of a conflict between any term of this Agreement and any Statement of Work, the terms of the Statement of Work shall prevail.

1.2 Scope of Services. The scope of any services provided by Service Provider to Client shall be determined by the applicable Statements of Work which will be created on a per job basis. The foregoing notwithstanding, if Service Provider, at the request of or with notice to Client, performs work that is not covered by an Statement of Work or that exceeds the scope of Services defined in the applicable Statement of Work, such work shall be deemed Services provided pursuant to this Agreement for which Client shall compensate Service Provider pursuant to Section 2.1.

1.3 Parts or Components. If any Statement of Work requires the provision of any parts or components, Client will be responsible for the costs of same, including shipping costs or taxes. Any products provided by Service Provider will be provided subject to the online terms and conditions located at https://www.blockimaging.com/terms/psps7x.

2. Payment for Services and Expenses.

2.1 Payment Terms. Client shall pay Service Provider for the Services on the terms defined in the applicable Statement of Work. Client shall pay the amounts payable to Service Provider hereunder within fifteen (15) days of receipt of invoices submitted by Service Provider. Any invoice remaining unpaid for more than fifteen (15) days shall accrue interest at a rate of the lesser of one and one-half (1.5%) percent per month or the highest rate allowed by law. In the event of any good faith dispute with regard to a portion of an invoice, the undisputed portion shall be paid as provided herein. Upon resolution of the disputed portion, any amounts owed to Service Provider shall be paid with interest at the rate set forth above accruing from the date such amounts were originally due.

2.2 Expenses. Unless provided otherwise in a Statement of Work, Service Provider shall be reimbursed by Client for all reasonable expenses incurred by Service Provider in the performance of the Services, including, but not limited to, parts, software, manuals, travel and lodging expenses, communications charges and computer time and supplies.

2.3 Taxes. Client shall pay for all taxes, including any interest and penalties from any related deficiency, in connection with this Agreement (except taxes based on or measured by Service Provider's net income) including any sales, use, excise, value-added, services, consumption, withholding and other taxes and duties assessed on the provision of services by Service Provider to Client or on Service Provider's charges to Client under this Agreement, including the reimbursement of expenses.

2.4 Payment Default. Upon default of the Payment Terms above, Service Provider may commence collection activities for all sums due or to become due hereunder, all at Client's expense, including but not limited to costs and expenses of collection, collection agency fees, and reasonable attorneys’ fees, and pursue any other remedies permitted by law.

 

3. Client Responsibilities.

3.1 Client Dependencies. In connection with Service Provider's provision of the Services, Client shall perform any tasks or items that are necessary to allow Service Provider to perform the Services. Some of these tasks and items may be identified as “Client Responsibilities” in this Agreement, but even if a task/item is not identified as a Client Responsibility, if it is reasonably related to accomplishing the Services and not part of the scope of services, it is a Client Responsibility. Client understands that Service Provider's performance is dependent and conditional on Client's timely and effective performance of Client Responsibilities hereunder and timely decisions and approvals by Client. The Statement of Work may also contain assumptions related to the Services ("Assumptions"). Service Provider shall be relieved of its responsibilities hereunder to the extent they are dependent upon unfulfilled Client Responsibilities or Assumptions which are revealed to be incorrect during the course of performance of the Services.

3.2 Work Acceptance/Rejection. Services will be considered to be accepted unless Client provides notice to Service Provider. If Client believes that a Statement of Work has not been completed, Client shall verbally report the deficiency to the Service Provider’s representative before they leave the site and provide written notice identifying specifically the basis for disapproval of the work performed within seven (7) days. Service Provider shall be entitled to rely on all decisions and approvals of the Client in connection with the Services.

3.3 Work Environment. Client shall provide and maintain a safe and professional facility in which the services are to be performed. Equipment shall be accessible, and in a clean and sanitary condition.

3.4 Compliance with Laws. Client shall retain responsibility for its compliance with all applicable federal, state and local laws and regulations.

3.5 Governmental Authorizations. Client is responsible for all required licenses, permits or other governmental authorizations, including but not limited to any license or certification needed to use the equipment subject to the Statements of Work. Service Provider shall not be liable and Client shall not be relieved of its obligations if any authorization is delayed, denied, revoked, restricted or not renewed. Client represents and agrees that it will deal with all equipment and technical data relating thereto in conformity with all applicable US laws and regulations, including copyright and intellectual property laws.

3.6 Miscellaneous Responsibilities. Client is responsible for patient data backup; Service Provider is not responsible for data lost in the course of completing a Statement of Work. Client must provide the proper environment as specified by the manufacturer(s) of the equipment subject to the Statements of Work, including, but not limited to temperature, humidity, and dust control.

4. Remote Connection.

4.1 Establishing Remote Connection. At Service Provider’s discretion, Service Provider may elect to establish the ability to remotely access Client’s Equipment through some networked connection (which may or may not include a hardware unit at the Client’s location), for the purposes of system monitoring, diagnostics and repair.

4.2 Responsibilities. In the event Service Provider desires to establish remote connection, Service Provider 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 Client’s Equipment only for the designated purposes. Client agrees 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 Client’s facility; Safeguard the remote connection and any physical equipment remaining with the Client’s Equipment and; Grant Service Provider unlimited remote access during a the performance of the Services and for the purposes of system monitoring, diagnostics and repair.

4.3 Termination. On receipt of notice from Client, Service Provider will terminate any ongoing remote connection under this Agreement. On receipt of notice from Service Provider, Client will facilitate the return shipment of any physical hardware remaining at the Client’s location

5. Warranty.

5.1 Services. Service Provider warrants that its Services will be performed in a workmanlike manner and according to current manufacturer specifications for such equipment. Service Provider agrees to re-perform any Services in breach of this warranty, where such breach is brought to its attention within fifteen (15) business days (or such specific period provided in the applicable Statement of Work) after such Services are performed. CLIENT'S EXCLUSIVE REMEDY, AND SERVICE PROVIDER'S SOLE OBLIGATION, FOR ANY BREACH OF THIS OR ANY OTHER WARRANTY HEREUNDER SHALL BE FOR SERVICE PROVIDER, UPON RECEIPT OF WRITTEN NOTICE, TO USE COMMERCIALLY REASONABLE EFFORTS TO CURE THE BREACH AT ITS OWN EXPENSE, AND FAILING THAT, TO RETURN ANY FEES PAID TO SERVICE PROVIDER FOR THE SERVICES RELATED TO SUCH BREACH.

5.2 Warranty Disclaimer. THE PRECEDING IS SERVICE PROVIDER'S ONLY WARRANTY CONCERNING THE SERVICES AND DELIVERABLES, AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND NONINFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM THE COURSE OF DEALING AND PERFORMANCE OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SERVICE PROVIDER SPECIFICALLY DISCLAIMS ANY WARRANTIES OR GUARANTEES WITH RESPECT TO OUTCOME RESULTING FROM THE SERVICES.

 

6. Limitations on Liability.

6.1 Disclaimer of Consequential Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE LOSS, DAMAGE OR EXPENSES (INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION, LOST BUSINESS, LOST PROFITS OR LOST SAVINGS), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY, UNDER STATUTE OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

 

6.2 Limitation on Liability. The limit of Service Provider's liability (whether in contract, tort, negligence, strict liability, product liability, under statute, or otherwise) to Client, or to any third party for any activities in any way related to the Services, or this Agreement, for any and all claims, shall not exceed the fees and expenses paid by Client to Service Provider for the Services at issue. Client's exclusive remedy for any claim arising out of any breach of this Agreement shall be for Service Provider, upon receipt of written notice of such breach pursuant to Section 10.2, to use commercially reasonable efforts to cure the breach at its expense, and failing that, to return the fees paid to Service Provider for the Services related to the breach. Any action related to this Agreement by either party must be brought within one year after the cause of action arose. The allocations of liability in this Section 6 represent the agreed-upon and bargained-for understanding of the parties and Service Provider's compensation for the Services reflects such allocations.

 

7. Indemnification.

7.1 Client Indemnity. Client Indemnity. Client shall defend, indemnify and hold harmless Service Provider from and against any third party claims, demands, loss, damage or expense relating to or resulting from (1) bodily injury or death of any person or damage to real or tangible personal property related to acts or omissions of Client, its personnel or agents; (2) a breach of any warranty, covenant or representation of Client hereunder; or (3) any claim against Service Provider that any content provided by Client infringes any intellectual property or privacy or publicity right of any third party. Client shall reimburse Service Provider for all expenses (including counsel fees and expenses) as incurred by Service Provider in connection with any such actions or claims.

 

8. Termination.

8.1 Termination of Statement of Work. Except as otherwise set forth in a Statement of Work, either party may terminate a Statement of Work if the other party breaches a material representation, obligation, or warranty under the Statement of Work and such breach remains uncured for thirty (30) days after the breaching party's receipt of written notice of the breach. Service Provider may also terminate a Statement of Work if Client fails to pay any amounts due under such Statement of Work within fifteen (15) days of the due date. A Statement of Work shall automatically terminate on the date that all services under the Statement of Work are finally performed and all payments due under the Statement of Work are made. Upon termination of a Statement of Work, Client shall pay Service Provider for all Services rendered and expenses incurred by Service Provider relating to such Statement of Work prior to the time of termination. In the event of termination by Client, Client shall also pay Service Provider for any demobilization or other costs resulting from such early termination.

8.2 Survival. The terms of this Agreement shall survive any termination or expiration of this Agreement or any Statement of Work. The terms of Section 10 shall survive any termination or expiration of this Agreement for a period of two (2) years.

9. HIPAA

9.1 In the process of performing the services under this Agreement, Service Provider may be required to interface with electronic data stored on Client’s Equipment, systems or computers. Client agree that Service Provider is permitted to access those systems for the purpose of fault diagnosis or repairs and that Service Provider may come into contact with information that is defined as Personal Health Information under the Health Insurance Portability and Accountability Act of 1996. Service Provider will not use or disclose that information other than as permitted under this Agreement, or as provided by law. Service Provider will report incidents that constitute breaches of the Protected Health Information. At the conclusion of the services under this Agreement, Service Provider will return all Protected Health Information to Client or destroy it. Any subcontractors that perform work on Service Provider’s behalf will adhere to the same obligations relating to Protected Health Information.

10. Security Agreement

For the exchange of the valuable and mutual consideration contained in this Agreement, Client hereby grants Service Provider a security interest in the collateral described below. This security interest shall remain in place until the payment of any amounts payable to Service Provider under this Agreement are received by Service Provider and Client has completely performed all of its obligations under the Agreement. The collateral subject to this security agreement is the equipment described in this Agreement (onto which the Services are rendered) and all present and hereafter acquired equipment and accounts of Client’s, wherever located. Client authorizes Service Provider 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 collateral from the location designated on the Agreement, (iii) any disposition of the collateral, (iv) any significant change in the collateral’s condition or (v) if Client becomes insolvent, file for reorganization or bankruptcy, makes an assignment for benefit of creditors, if a receiver or trustee is appointed for any of Client’s assets or any other type of insolvency proceeding or formal or informal proceeding for the dissolution, liquidation, or winding up of Client’s affairs are commenced. Upon the occurrence of an event of default under this section, Service Provider 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 Service Provider’s aforementioned rights, Client hereby grants Service Provider an irrevocable license to enter upon the collateral’s location, without the order of any court, to disable and/or remove the collateral without any obligation to repair or restore the location. Upon completion of Client’s obligations under this Agreement, the security interest shall be released.

 

11. General Terms and Conditions.

11.1 Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction or arbitrator to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or provisions hereof or the whole of this Agreement, but such term or provision shall be deemed modified to the extent necessary in the court's opinion to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the parties herein set forth.

11.2 Notices. Any notice or other communication given pursuant to this Agreement shall be in writing and shall be effective either when delivered personally to the party for whom intended, or five (5) days following deposit of the same into the United States mail (certified mail, return receipt requested, or first class postage prepaid), facsimile (with confirmation of delivery) or overnight delivery services (with confirmation of delivery), addressed to such party at the address set forth on the initial page of this Agreement. Either party may designate a different address by notice to the other given in accordance herewith.

11.3 Force Majeure. Neither party shall be liable for any delays or failures in performance (other than payment obligations hereunder) due to circumstances beyond its reasonable control.

11.4 Complete Agreement. These terms constitute the entire understanding of the parties and supersede all other agreements, written or oral, regarding its subject matter. No additional terms, conditions, consent, waiver, alteration, or modification will be binding unless in writing and signed by Service Provider and Client. 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 transactions contemplated herein. No prior proposals, statements, course of dealing, course of performance, usage of trade or industry standard will apply to the Services or modify these terms. Each Statement of Work, except as its terms otherwise expressly provide, shall be a complete statement of its subject matter and shall supplement and modify these Terms the purposes of that engagement only.

11.5 No Third Party Beneficiaries. Client acknowledges that it is entering into this Agreement solely on the basis of the agreements and representations contained herein, and for its own purposes and not for the benefit of any third party.

11.6 No Oral Amendment. Neither this Agreement nor any Statement of Work may be modified or amended except by the mutual written agreement of the parties.

11.7 No Waiver. No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by the party against which it is sought to be enforced. The delay or failure by either party to exercise or enforce any of its rights under this Agreement shall not constitute or be deemed a waiver of that party's right thereafter to enforce those rights, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right.

11.8 Right to Subcontract. Service Provider reserves the right to perform any of its obligations under this Agreement and the related Statements of Work through a subcontractor.

11.9 Assignment. This Agreement shall not be assigned by Client without Service Provider’s prior written consent. Consent to any assignment is within Service Provider’s sole discretion.

11.10 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. If they do not reach such a solution, then, 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 Service Provider: (1) the arbitration 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 shall be heard at Service Providers main office 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 will issue written findings of fact and conclusions of law, and 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.