For contracts fully executed on or after February 22, 2018.
In exchange for payment of rent and other amounts due, and otherwise performing their other obligations under this Agreement, Block Imaging International, Inc. or Block Imaging Parts & Service Inc. (“Lessor”) agrees to make the Leased Property available to the party under the “Lessee” heading (“Lessee”) on the Lease 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 to rent the Leased Property 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 Lessee. Lessor’s acceptance of this Agreement is made expressly conditional on Lessees’ 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 Lessor and Lessee.
1.3 Lessee acknowledges that this is a commercial and not a consumer transaction.
2. TERM
2.1. The Initial Term is defined for each piece of Leased Property in this Agreement. Lessee agrees to pay the lease payments as set forth in this Agreement. This Agreement may be extended beyond the Initial Term, based on the availability of the Leased Property (which is determined in Lessor’s sole discretion), by mutual agreement of the parties. Any extension shall be on a term-to-term basis after the Initial Term and Lessee, unless otherwise agreed, shall pay the same rate as the Initial Term price. Any extension term may be terminated by either party by giving 30 days’ notice (or notice equal to the Initial Term, whichever is shorter).
3. LEASED PROPERTY
3.1. The Leased Property may be new, used, or refurbished. Lessee will be responsible to prepare their facility to integrate and safely operate the Leased Property. The costs of delivery, installation, setup, deinstallation, removal, pickup and return shipping of the system will be paid by the Lessee. The Leased Property will be deemed “Accepted” unless written rejection is received with 24 hours of Lessee’s receipt of the Leased Property and/or first use, whichever occurs first. Leased Property may only be rejected for failure to produce clinically useable images.
4 PAYMENT
4.1. Lessee hereby agrees to pay Lessor the rental amount throughout the rental term. Payments are due in advance of each month of the Initial Term or extension term. If the Term is less than one month, payments are due in advance of the Initial Term or extension terms. Charges for shipping and any Security Deposit are due upon execution of this Agreement.
4.2. Lessee agrees to pay a late charge of five percent (5%) of any payment not paid when due as compensation for Lessor's internal operating expenses arising as a result of such delayed payment. Lessee also agrees to pay interest equal to 1 ½ % per month, not to exceed the maximum amount allowed by law, on any unpaid amounts. The lease is a net lease and Lessee shall not be entitled to any abatement of, reduction of, or setoff against the rental amount, for any reason whatsoever.
5 SECURITY DEPOSIT
5.1. Lessee agrees to pay the Damage and Security Deposit. For the purpose of securing all of the Lessee’s obligations under this Agreement, Lessee grants Lessor a security interest in this security deposit. Any such security deposit may be commingled with other funds and shall be held without interest to Lessee. Upon default of this Agreement, Lessor may, but shall not be obligated to, apply any such security deposit to any obligation of Lessee of this Agreement in which event Lessee shall promptly restore the amount thereof on demand. Upon compliance of Lessee with all the terms of this Agreement, and upon the safe return of the Leased Property to Lessor, Lessor shall refund Lessee’s security deposit, less any amount withheld to repair damage to the Leased Property or any other amount owed under this Agreement.
6. LOCATION PREPARATION
6.1. Any obligation of installation or setup on Lessor shall be subject to Lessee providing a facility appropriate for the use the Leased Property. Lessee’s obligations include, but are not limited to 1) providing adequate and safe power supply (to which the Leased Property must remain connected until retrieved by Lessor); 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 Leased Property to/from the desired location (including wall/door removal). Lessee shall complete all site preparations prior to the arrival of the Leased Property. After the conclusion of this Agreement, Lessee is responsible to return the site to original condition, if Lessee desires. Any advice/information Lessor 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 Lessee’s obligation to acquire.
6.2 Lessee is also responsible for providing a compatible network configuration if network connectivity is desired. Compatibility of Lessee’s network will be determined in Lessor’ sole discretion. Work performed assisting with Lessee’s network will be charged to Lessee on a time and materials basis.
7. LOCATION AND USE OF LEASED PROPERTY
7.1. The Leased Property shall be kept at Lessee’s address specified on the Agreement and shall not be removed from that location without Lessor’s prior written consent. The Leased Property shall be kept by Lessee in its possession and control and used by the Lessee and all other persons with due care and conformity with all applicable laws, regulations, requirements, or any insurer or government. Lessee shall safeguard and protect the Leased Property, and follow any of Lessor’s instructions.
7.2. In the event possession or the use of the Leased Property requires licensing/permitting/other authorization by any governmental authority, Lessee shall, at its own expense, obtain and maintain same continuously during the term of this lease.
7.3. Lessee represents and warrants that it is trained and qualified to safely operate the Leased Property according to the manufacturer’s procedures. Lessee will perform any Quality Assurance (or similar) procedures while in possession of the Leased Equipment.
7.4. Lessee 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. Lessee is responsible to keep the Leased Property connected to a satisfactory power supply until the Leased Property is recovered by Lessor. Failure to do so could result in damage to the Leased Property, the costs of which Lessee agrees to pay.
8. MAINTENANCE
8.1. Lessee shall exercise due and proper care in the use of Leased Property and immediately notify Lessor’s designated point of contact of any functionality issues. Lessor shall repair and service the Leased Property and has the responsibility to keep the Leased Property in good working condition, order and repair. Lessee will provide any required access for Lessor’s repair and maintenance of the Leased Property. Equipment downtime for maintenance and repairs is normal and does not relieve Lessee from the obligation to pay rent or perform its other obligations.
9. DAMAGE TO THE LEASED PROPERTY
9.1 Lessee shall be responsible for any damage to the Leased Property during the Initial or any extension term, including but not limited to damage cause by: 1) Acts or omissions; 2) Lessee combining the Leased Property and another product; 3) any alteration or improper storage, handling, use or maintenance of any part of the Leased Property; 4) anything external to the Leased Property and its mobile trailer or van, including building, structural deficiency, power surge, fluctuation or failure; 5) vandalism, accident, lightning, earthquake, fire, smoke or water damage to the Leased Property; and/or 6) the cleaning or decontamination of the Leased Property after contact with blood or other potentially infectious materials or liquids.
9.2 Lessee shall bear the entire risk of loss, theft, destruction or damage of the Leased Property from any cause whatsoever and no loss, theft, destruction or damage of the Leased Property shall relieve Lessee of the obligation to pay rent or any other obligations under this lease. In the event of loss, theft, or damage of any kind to the Leased Property, Lessee, at the option of Lessor, shall place the Leased Property in good condition and repair, or if the Leased Property is determined by Lessor to be lost, stolen, destroyed or damaged beyond repair and if requested by Lessor, purchase the Leased Property at its fair market value immediately preceding the event causing the loss.
10. INSURANCE
10.1 Insurance: Lessee 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 Lessee, and shall name the Lessor as an additional insured. The Lessee will also maintain insurance covering any loss to the Leased Property. 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. Lessor 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 Lessor’s option, to the repair or replacement of the Leased Property affected. Lessee shall provide to Lessor 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 Leased Property shall maintain professional liability insurance in sufficient for any current or future claims arising from those activities.
11. WARRANTY
11.1. So long as Lessee is not in default under the terms of the lease, Lessor assigns to Lessee any warranty rights it has as Lessor of the Leased Property against the manufacturer or supplier or any other person.
11.2. LESSOR 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 LEASED PROPERTY IS OFFERED IN AS-IS CONDITION.
12. LIMITATION OF LIABILITY
12.1. LESSOR 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 LEASED PROPERTY. This provision does not affect third party claims for personal injury arising as a result of Lessor'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. LESSEE 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 LESSOR SHALL BE RESPONSIBLE FOR IN ANY EVENT IS THE RENTAL AMOUNT UNDER THIS AGREEMENT.
13. FORCE MAJEURE
13.1. Lessor 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, Lessor 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. Lessee shall indemnify defend and hold harmless Lessor 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 Leased Property, 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 Lessee or Lessee’s subcontractors, agents, employees or delegates.
14.2. Lessor shall indemnify and hold harmless Lessee 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 Lessor or Lessor’s subcontractors, agents, employees, or delegates.
15. TITLE
15.1. The title to all Leased Property shall remain with the Lessor, subject only to Lessee’s right of possession and use during the term of this lease.
16. TAXES
16.1. Lessee 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 Leased Property 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, Lessee will provide a copy of its Tax Exempt Certificate with a signed copy of this agreement.
16.2. Lessee shall reimburse Lessor, or its assigns, upon receipt of written request for reimbursement for any taxes charged to or assessed against Lessor or its assigns, and Lessee will, on request of Lessor submit to Lessor written evidence of Lessee’s payment thereof, and in any case any report or return is required to be made with respect to any tax, Lessee will make such report or return in such manner as will show the ownership of the Leased Property by Lessor, and send a copy of thereof to Lessor.
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 Lessee 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 Lessee, the Lessor may, at the Lessor’s option, declare Lessee 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 Leased Property and render the Leased Property unusable, and for this purpose remove the Leased Property from any premises where the same may be located without liability to Lessor for any damage caused thereby. Lessee grants an irrevocable license to Lessor for immediate access to the Leased Property to remove it at the termination of this Agreement or if Lessor declares Lessee to be in default.
18. TERMINATION
18.1. This agreement shall terminate upon the occurrence of any of the following events: 1) at Lessor’s election upon an event of default described above; 2) upon thirty (30) days prior written notice of termination being served by Lessor upon the Lessee but not less than the initial rental term of this agreement; or 3) upon expiration of this Agreement
18.2. Lessee is responsible for the cost of returning the Leased Property to Lessor upon termination, or other conclusion of this Agreement.
19. ASSIGNMENT AND SUBLEASE
19.1. Lessee hereby consents to any assignment by Lessor and any reassignment of this Lease, the rents due hereunder, or any or all of Lessor’s rights, title, or interest in this lease, with or without notice. Neither this Lease nor any of Lessee’s rights hereunder shall be assignable by Lessee either by its own act or by operation of law, without the prior written consent of the Lessor.
20. DEFAULT; ATTORNEYS’ FEES.
20.1. Lessor shall be entitled to exercise all rights and remedies under law upon breach by Lessee of any terms or conditions herein. In the event that legal or other action is required to enforce Lessor’s’ rights hereunder, Lessee agrees to reimburse Lessor 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 Lessor: (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 Lessor’s main offices in Holt, MI; (4) the arbitrator shall award costs, 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 Lessee in this agreement, the liability of each shall be joint and several.
For contracts fully executed between September 3, 2014 and February 22, 2018.
In exchange for payment of rent and other amounts due, and otherwise performing their other obligations under this Agreement, Block Imaging International, Inc, Block Mobile Imaging, LLC, or Block Imaging Parts & Service Inc. (“Lessor”) agrees to make the Leased Property available to the party under the “Lessee” heading (“Lessee”) on the Lease 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 to rent the Leased Property 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 Lessee. Lessor’s acceptance of this Agreement is made expressly conditional on Lessees’ 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 Lessor and Lessee.
1.3 Lessee acknowledges that this is a commercial and not a consumer transaction.
2. TERM
2.1. The Initial Term is defined for each piece of Leased Property in this Agreement. Lessee agrees to pay the lease payments as set forth in this Agreement. This Agreement may be extended beyond the Initial Term, based on the availability of the Leased Property (which is determined in Lessor’s sole discretion), by mutual agreement of the parties. Any extension shall be on a term-to-term basis after the Initial Term and Lessee, unless otherwise agreed, shall pay the same rate as the Initial Term price. Any extension term may be terminated by either party by giving 30 days’ notice (or notice equal to the Initial Term, whichever is shorter).
3. LEASED PROPERTY
3.1. The Leased Property may be new, used, or refurbished. Lessee will be responsible to prepare their facility to integrate and safely operate the Leased Property. The costs of delivery, installation, setup, deinstallation, removal, pickup and return shipping of the system will be paid by the Lessee. The Leased Property will be deemed “Accepted” unless written rejection is received with 24 hours of Lessee’s receipt of the Leased Property and/or first use, whichever occurs first. Leased Property may only be rejected for failure to produce clinically useable images.
4 PAYMENT
4.1. Lessee hereby agrees to pay Lessor the rental amount throughout the rental term. Payments are due in advance of each month of the Initial Term or extension term. If the Term is less than one month, payments are due in advance of the Initial Term or extension terms. Charges for shipping and any Security Deposit are due upon execution of this Agreement.
4.2. Lessee agrees to pay a late charge of five percent (5%) of any payment not paid when due as compensation for Lessor's internal operating expenses arising as a result of such delayed payment. Lessee also agrees to pay interest equal to 1 ½ % per month, not to exceed the maximum amount allowed by law, on any unpaid amounts. The lease is a net lease and Lessee shall not be entitled to any abatement of, reduction of, or setoff against the rental amount, for any reason whatsoever.
5 SECURITY DEPOSIT
5.1. Lessee agrees to pay the Damage and Security Deposit. For the purpose of securing all of the Lessee’s obligations under this Agreement, Lessee grants Lessor a security interest in this security deposit. Any such security deposit may be commingled with other funds and shall be held without interest to Lessee. Upon default of this Agreement, Lessor may, but shall not be obligated to, apply any such security deposit to any obligation of Lessee of this Agreement in which event Lessee shall promptly restore the amount thereof on demand. Upon compliance of Lessee with all the terms of this Agreement, and upon the safe return of the Leased Property to Lessor, Lessor shall refund Lessee’s security deposit, less any amount withheld to repair damage to the Leased Property or any other amount owed under this Agreement.
6. LOCATION PREPARATION
6.1. Any obligation of installation or setup on Lessor shall be subject to Lessee providing a facility appropriate for the use the Leased Property. Lessee’s obligations include, but are not limited to 1) providing adequate and safe power supply (to which the Leased Property must remain connected until retrieved by Lessor); 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 Leased Property to/from the desired location (including wall/door removal). Lessee shall complete all site preparations prior to the arrival of the Leased Property. After the conclusion of this Agreement, Lessee is responsible to return the site to original condition, if Lessee desires. Any advice/information Lessor 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 Lessee’s obligation to acquire.
7. LOCATION AND USE OF LEASED PROPERTY
7.1. The Leased Property shall be kept at Lessee’s address specified above and shall not be removed from that location without Lessor’s prior written consent. The Leased Property shall be kept by Lessee in its possession and control and used by the Lessee and all other persons with due care and conformity with all applicable laws, regulations, requirements, or any insurer or government. Lessee shall safeguard and protect the Leased Property, and follow any of Lessor’s instructions.
7.2. In the event possession or the use of the Leased Property requires licensing by any governmental authority, Lessee shall, at its own expense, obtain and maintain such license continuously during the term of this lease.
7.3. Lessee 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. Lessee is responsible to keep the Leased Property connected to a satisfactory power supply until the Leased Property is recovered by Lessor. Failure to do so could result in damage to the Leased Property, the costs of which Lessee agrees to pay.
8. MAINTENANCE
8.1. Lessee shall exercise due and proper care in the use of Leased Property and immediately notify Lessor of any functionality issues. Lessor shall repair and service the Leased Property and has the responsibility to keep the Leased Property in good working condition, order and repair.
9. DAMAGE TO THE LEASED PROPERTY
9.1 Lessee shall be responsible for any damage to the Leased Property during the Initial or any extension term, including but not limited to damage cause by: 1) Acts or omissions; 2) Lessee combining the Leased Property and another product; 3) any alteration or improper storage, handling, use or maintenance of any part of the Leased Property; 4) anything external to the Leased Property and its mobile trailer or van, including building, structural deficiency, power surge, fluctuation or failure; 5) vandalism, accident, lightning, earthquake, fire, smoke or water damage to the Leased Property; and/or 6) the cleaning or decontamination of the Leased Property after contact with blood or other potentially infectious materials or liquids.
9.2 Lessee shall bear the entire risk of loss, theft, destruction or damage of the Leased Property from any cause whatsoever and no loss, theft, destruction or damage of the Leased Property shall relieve Lessee of the obligation to pay rent or any other obligations under this lease. In the event of loss, theft, or damage of any kind to the Leased Property, Lessee, at the option of Lessor, shall place the Leased Property in good condition and repair, or if the Leased Property is determined by Lessor to be lost, stolen, destroyed or damaged beyond repair and if requested by Lessor, purchase the Leased Property at its fair market value immediately preceding the event causing the loss.
10. INSURANCE
10.1 Insurance: Lessee 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 Lessee, and shall name the Lessor as an additional insured. The Lessee will also maintain insurance covering any loss to the Leased Property. 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. Lessor 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 Lessor’s option, to the repair or replacement of the Leased Property affected. Lessee shall provide to Lessor 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 Leased Property shall maintain professional liability insurance in sufficient for any current or future claims arising from those activities.
11. WARRANTY
11.1. So long as Lessee is not in default under the terms of the lease, Lessor assigns to Lessee any warranty rights it has as Lessor of the Leased Property against the manufacturer or supplier or any other person.
11.2. LESSOR 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 LEASED PROPERTY IS OFFERED IN AS-IS CONDITION.
12. LIMITATION OF LIABILITY
12.1. LESSOR 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 LEASED PROPERTY. This provision does not affect third party claims for personal injury arising as a result of Lessor'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. LESSEE 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 LESSOR SHALL BE RESPONSIBLE FOR IN ANY EVENT IS THE RENTAL AMOUNT UNDER THIS AGREEMENT.
13. FORCE MAJEURE
13.1. Lessor 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, Lessor 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. Lessee shall indemnify defend and hold harmless Lessor 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 Leased Property, 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 Lessee or Lessee’s subcontractors, agents, employees or delegates.
14.2. Lessor shall indemnify and hold harmless Lessee 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 Lessor or Lessor’s subcontractors, agents, employees, or delegates.
15. TITLE
15.1. The title to all Leased Property shall remain with the Lessor, subject only to Lessee’s right of possession and use during the term of this lease.
16. TAXES
16.1. Lessee 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 Leased Property 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, Lessee will provide a copy of its Tax Exempt Certificate with a signed copy of this agreement.
16.2. Lessee shall reimburse Lessor, or its assigns, upon receipt of written request for reimbursement for any taxes charged to or assessed against Lessor or its assigns, and Lessee will, on request of Lessor submit to Lessor written evidence of Lessee’s payment thereof, and in any case any report or return is required to be made with respect to any tax, Lessee will make such report or return in such manner as will show the ownership of the Leased Property by Lessor, and send a copy of thereof to Lessor.
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 Lessee 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 Lessee, the Lessor may, at the Lessor’s option, declare Lessee 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 Leased Property and render the Leased Property unusable, and for this purpose remove the Leased Property from any premises where the same may be located without liability to Lessor for any damage caused thereby. Lessee grants an irrevocable license to Lessor for immediate access to the Leased Property to remove it at the termination of this Agreement or if Lessor declares Lessee to be in default.
18. TERMINATION
18.1. This agreement shall terminate upon the occurrence of any of the following events: 1) at Lessor’s election upon an event of default described above; 2) upon thirty (30) days prior written notice of termination being served by Lessor upon the Lessee but not less than the initial rental term of this agreement; or 3) upon expiration of this Agreement
18.2. Lessee is responsible for the cost of returning the Leased Property to Lessor upon termination, or other conclusion of this Agreement.
19. ASSIGNMENT AND SUBLEASE
19.1. Lessee hereby consents to any assignment by Lessor and any reassignment of this Lease, the rents due hereunder, or any or all of Lessor’s rights, title, or interest in this lease, with or without notice. Neither this Lease nor any of Lessee’s rights hereunder shall be assignable by Lessee either by its own act or by operation of law, without the prior written consent of the Lessor.
20. DEFAULT; ATTORNEYS’ FEES.
20.1. Lessor shall be entitled to exercise all rights and remedies under law upon breach by Lessee of any terms or conditions herein. In the event that legal or other action is required to enforce Lessor’s’ rights hereunder, Lessee agrees to reimburse Lessor 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 Lessor: (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 Lessor’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 Lessee in this agreement, the liability of each shall be joint and several.
