Block Imaging Parts & Service, Inc. (“Block”) will provide the parts exchange program described below and on the above page(s) of this Parts Only Service Agreement and any exhibits (together, the “Agreement”) under the following terms and conditions:
1. PARTS EXCHANGE PROGRAM. Unless otherwise set forth in this Agreement, Block will provide a parts exchange program for the identified equipment (“Equipment”), at the location described ("Equipment Location”), on an exchange basis and for the prices set forth in the Agreement, in the following manner:
a. Block will make ready for shipment, replacements (“Exchange Part”) of any components of the Equipment that have been diagnosed: 1) defective or faulty and 2) the cause of the Equipment operating below the manufacturer’s specifications for image quality or performance, by a qualified engineer who is acceptable to Block (“Failed Part”);
b. Exchange Parts may be new or used;
c. Failed Parts become property of Block and shall be promptly shipped to Block using the designated procedure;
d. The prices in this Agreement are subject to change if the equipment is upgraded, or reconfigured.
2. EXCLUSIONS. The Parts Only Service does not include:
a. Replacing any components that are excluded under this Agreement;
b. Replacing components other than those listed on in this Agreement;
c. Replacing components when Customer has not performed one of its obligations under this Agreement;
d. Replacing any components subject to manufacturer’s recall or any components known to have failed prior to the parties entering this Agreement;
e. Replacing any components if the Equipment is deemed obsolete by the manufacturer (manufacturer no longer offers service contracts) or if the use of the Equipment is prohibited by law;
f. All shipping expenses.
g. The costs of diagnosis or removal of Failed Parts or the installation of Exchange Parts;
h. Any Exchange Parts necessary due to:
1) Any action or omission of the Customer or Customer’s representative;
2) The failure of anyone to comply with the manufacturer’s recommendations;
3) Any alteration, improper staging, handling, use, or maintenance or repair of the Equipment;
4) Any combination of the Equipment with software or components not recommended by the Equipment’s manufacturer;
5) Damage by an external source, regardless of nature;
6) Neglect or misuse of the Equipment.
i. Any costs of materials, supplies, parts or labor provided by anyone other than Block;
j. 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;
k. The costs of factory reconditioning;
l. The costs of any betterment, upgrades or improvements to the Equipment;
m. The costs of lost data and transferring data to Exchange Parts;
n. Providing software updates, back-up copies of software, software licenses, or the programming of custom code;
o. The costs of replacing third-party products, including but not limited to, HVAC systems, chiller systems and PACS systems;
p. The costs of repairs made or components replaced by third parties;
q. The costs of downtime, loss of business or replacement/rental systems; or
r. Unless specifically included in this agreement, the cost of nuclear camera detector crystals, surface coils, flat panel detectors, magnet replacement, magnet refrigeration system (coldhead, compressor), chiller, power conditioners, power filters, surge suppressors, uninterruptible power supplies and evacuated devices such as x-ray tubes, image intensifier tubes, TV camera pick-up tubes, photo multiplier tubes, monitors, gradient coil.
s. Any Exchange Parts after the value of Exchange Parts provided by Block exceed the Maximum Expenditure Amount (as defined on Page 1 of this Agreement) in value.
t. The costs of Cryogens.
3. Coverage Details and Claims Process:
a. Claims may be made Monday through Friday 9:00am to 5:00pm Eastern Time, excluding Block observed holidays. 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);
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 prior to the commencement of this Agreement to Audit the Equipment’s condition, serial numbers and functionality;
g. Allow Block to inspect the Equipment with reasonable notice;
h. In the event a component of the Equipment is determined to be a Failed Part, 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 Part to Block within fourteen (14) days of the diagnosis;
3) Upon notice that the Exchange Part is ready for shipment, deploy a carrier of Customer’s choice to pick-up and make insured transport of the Exchange Part to the Equipment Location within five (5) days;
4) Upon receipt of the Exchange Part or Return Instructions from Block, follow the Return Instructions and insure and ship the Failed Part (in packaging suitable to preserve the Failed Part) to Block within ten (10) days. If Customer fails or refuses to return the Failed Part to Block within the time allowed, or if Block finds the Failed Part to be physically damaged (for reasons including but not limited to: improper use, removal, handling, packing, shipping), Customer shall immediately remit payment to Block in the amount of the Replacement Parts value;
5. REMOTE CONNECTION. At Block’s discretion, Block may elect to establish the ability to remotely access the Equipment through some networked connection (which may or may not include a hardware unit at the Equipment’s location), for the purposes of system monitoring, diagnostics and repair. The costs for any remote diagnostics, repair or monitoring are not included in the scope of this Agreement. If Customer desires to utilize Block’s capabilities in this regard, prior to the provision of any such services, Customer and Block will come to terms concerning the fees and scope of any remote access.
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 remote connection; 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.
6. PAYMENT. All Payments under this Agreement are due thirty (30) days from the date of Block’s invoice until the Agreement amount and all applicable taxes and interest are paid in full, unless otherwise agreed. 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 Exchange Parts exchanged, whichever is greater. Block will refund any unearned Agreement Amount to the extent it is not offset by the value of the Exchange Parts 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 Exchange Parts are provided AS IS. No warranty of Merchantability or fitness for a particular purpose applies to anything provided by Block.
11. LIMITATION OF LIABILITY. Block’s total liability, if any, and Customer’s exclusive remedy with respect to Block’s performance under this Agreement is limited to:
a. The Agreement Amount stated herein;
b. 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;
c. Replacement of a component with an Exchange Part constitutes complete fulfillment of Block’s obligations under this Agreement, and releases Block from all future obligation with respect to the replaced component for the remainder of the term of the 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. SECURITY AGREEMENT. For the exchange of the valuable and mutual consideration contained in this Agreement, Customer hereby grants Block asecurity interest in certain collateral described below. This security interest shall remain in place until all payment, any applicable late fees, and any other amounts due to Block have been received by BlockandCustomer has completely performed all of its obligations under the Agreement. The collateral subject to this security agreement is the Equipment described in this Agreement and all present and hereafter acquired equipment and accounts of Customer’s wherever located. Customer authorizes Block 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 Equipment from the Equipment Location, (iii) any disposition of the Equipment, (iv) any significant change in the Equipment’s condition or (v) if Customer becomes insolvent, file for reorganization or bankruptcy, makes an assignment for benefit of creditors, if a receiver or trustee is appointed for any of Customer’s assets or any other type of insolvency proceeding or formal or informal proceeding for the dissolution, liquidation, or winding up of Customer’s affairs are commenced. Upon the occurrence of an event of default under this section, Block 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 Block’s aforementioned rights, Customer hereby grants Block an irrevocable license to enter upon the Equipment’s location, without the order of any court, to disable and/or remove the Equipment Without any obligation to repair or restore the location. Upon completion of Customer’s obligations under this Agreement, the security interest shall be released.
16. Auto-Renewal. Unless otherwise agreed, the Agreement will automatically renew at the end of the initial or renewal term (which is identified in the body of the Agreement) for successive one-year renewal terms. The amounts owed, increments, and due dates will remain during the renewal term(s). By providing written notice to Block during the sixty (60) days prior to expiration of a term (initial or renewal), Customer can opt out of the automatic renewal.
17. GOVERNING LAW; DISPUTE RESOLUTION; JURISDICTION. The Agreement shall be construed and governed according to the laws of the State of Michigan and the United States of America. 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.
