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Terms and Conditions

 

For contracts effective after July 25, 2018.

 
1. Services.
 
1.1 Nature of Relationship. Client and Service Provider hereby enter into a non-exclusive pay-for-services relationship whereby Client may request and Service Provider may provide certain services to Client (the "Services"). Upon entering into this Agreement, all of Client’s requests for service and Service Provider’s work performed for Client, shall be subject to the terms and conditions contained herein (“Terms”).
 
1.2 Scope of Services. The scope of any services provided by Service Provider to Client shall be determined by the Client’s request for service. The foregoing notwithstanding, if Service Provider, at the request of or with notice to Client, performs work that is not covered by the initial request for service or that exceeds the initial request for service, 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 Provision of Goods. If any request for service requires the provision of goods, including hardware or software, Service Provider shall provide such goods subject to the terms and conditions set forth at http://terms.blockimaging.com/psps7x and hereby incorporated into this Agreement by reference. Third-party goods will be provided subject to the terms and conditions of that third party and Service Provider may invoice, collect, and receive from Client all sums that are or become due to such third parties, including taxes and shipping charges, as applicable.
 
2. Payment for Services and Expenses.
 
2.1 Hourly Rate/Holiday Schedule. Unless Service Provider agrees otherwise in a written request for service, Client shall pay Service Provider for the Services on a time and materials basis. The applicable hourly rate(s) may be found on Exhibit “A” to this Agreement, which is attached to this Agreement and hereby incorporated by reference. The rates found in Exhibit “A” are subject to change upon written notice subject to section 10.2 of this Agreement. A request for service made after notice of a change in hourly rates shall be deemed an acceptance of the modified terms.
 
2.2 Payment Terms. Unless the parties agree to alternative payment terms in a written request for service, Client agrees to pay for any and all services performed under this Agreement. 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 from receipt 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.
 
2.3 Expenses. Unless otherwise specified in writing by both parties, 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, supplies, software, manuals, travel and lodging expenses, communications charges and computer time and supplies.
 
2.4 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.
 
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. Service Provider shall be relieved of its obligations hereunder to the extent that they are dependent on timely performance of the Client Responsibilities.
 
3.2 Work Acceptance/Rejection. If Client believes that a request for service has not been completed, Client shall verbally report the deficiency to the Service Provider’s representative before they leave the site. In any event, the work performed shall be deemed accepted if, within fifteen (15) business days after delivery, Client has not provided to Service Provider written notice identifying specifically the basis for disapproval of the work performed. 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.
 
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 request for service. 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 request for service. Client must provide the proper environment as specified by the manufacturer(s) of the equipment subject to the request for service, including, but not limited to temperature, humidity, and dust control.
 
4. Remote Connection.
 
4.1 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 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 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 Authority. Each party warrants and represents to the other party that it has full power and authority to enter into this Agreement and to carry out its obligations hereunder.
 
5.2 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 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.
 
5.3 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 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 Agreement. Either party may terminate this Agreement (a) with or without cause by giving the other party thirty (30) days' written notice of termination provided that all existing requests for service under this Agreement have expired or terminated.
 
8.2 Termination of Request for Service. Except as otherwise set forth in writing, a request for service, may be terminated if the other party breaches a material representation, obligation, or warranty under this Agreement 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 request for service if Client fails to pay any amounts due under any invoice within fifteen (15) days of the due date. A request for service shall automatically terminate on the date that all services under the request for service are finally performed and all payments due under the request for service are made. Upon termination of a request for service, Client shall pay Service Provider for all Services rendered and expenses incurred by Service Provider relating to such request for service 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. All request for service shall terminate automatically upon the termination of this Agreement under any provision of Section 8.1.
 
8.3 Survival. The terms of this Agreement shall survive any termination or expiration of this Agreement or any request for service. The terms of Section 9 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
 
10.1For 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 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. Except as set forth in this Section, This Agreement sets forth the entire understanding between the parties hereto and supersedes all prior agreements, arrangements and communications, whether oral or written, with respect to the subject matter hereof. Any purchase order issued by the Client shall be for its administrative purposes only and none of its terms and conditions shall be of any force or effect against Service Provider. No other agreements, representations, warranties or other matters, whether oral or written, shall be deemed to bind the parties hereto with respect to the subject matter hereof.
 
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. This Agreement may not 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 requests for service 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.
 

For contracts effective between July 20, 2016 and July 25, 2018.

1. Services.

1.1 Nature of Relationship. Client and Service Provider hereby enter into a non-exclusive pay-for-services relationship whereby Client may request and Service Provider may provide certain services to Client (the "Services"). Upon entering into this Agreement, all of Client’s requests for service and Service Provider’s work performed for Client, shall be subject to the terms and conditions contained herein (“Terms”).

1.2 Scope of Services. The scope of any services provided by Service Provider to Client shall be determined by the Client’s request for service. The foregoing notwithstanding, if Service Provider, at the request of or with notice to Client, performs work that is not covered by the initial request for service or that exceeds the initial request for service, 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 Provision of Goods. If any request for service requires the provision of goods, including hardware or software, Service Provider shall provide such goods subject to the terms and conditions set forth at http://terms.blockimaging.com/psps7x and hereby incorporated into this Agreement by reference. Third-party goods will be provided subject to the terms and conditions of that third party and Service Provider may invoice, collect, and receive from Client all sums that are or become due to such third parties, including taxes and shipping charges, as applicable.

2. Payment for Services and Expenses.

2.1 Hourly Rate/Holiday Schedule. Unless Service Provider agrees otherwise in a written request for service, Client shall pay Service Provider for the Services on a time and materials basis. The applicable hourly rate(s) may be found on Exhibit “A” to this Agreement, which is attached to this Agreement and hereby incorporated by reference. The rates found in Exhibit “A” are subject to change upon written notice subject to section 10.2 of this Agreement. A request for service made after notice of a change in hourly rates shall be deemed an acceptance of the modified terms.

2.2 Payment Terms. Unless the parties agree to alternative payment terms in a written request for service, Client agrees to pay for any and all services performed under this Agreement. 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 from receipt 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.

2.3 Expenses. Unless otherwise specified in writing by both parties, 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, supplies, software, manuals, travel and lodging expenses, communications charges and computer time and supplies.

2.4 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.

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. Service Provider shall be relieved of its obligations hereunder to the extent that they are dependent on timely performance of the Client Responsibilities.

3.2 Work Acceptance/Rejection. If Client believes that a request for service has not been completed, Client shall verbally report the deficiency to the Service Provider’s representative before they leave the site. In any event, the work performed shall be deemed accepted if, within fifteen (15) business days after delivery, Client has not provided to Service Provider written notice identifying specifically the basis for disapproval of the work performed. 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.

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 request for service. 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 request for service. Client must provide the proper environment as specified by the manufacturer(s) of the equipment subject to the request for service, including, but not limited to temperature, humidity, and dust control.

4. Remote Connection.

4.1 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 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 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 Authority. Each party warrants and represents to the other party that it has full power and authority to enter into this Agreement and to carry out its obligations hereunder.

5.2 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 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.

5.3 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 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 Agreement. Either party may terminate this Agreement (a) with or without cause by giving the other party thirty (30) days' written notice of termination provided that all existing requests for service under this Agreement have expired or terminated.

8.2 Termination of Request for Service. Except as otherwise set forth in writing, a request for service, may be terminated if the other party breaches a material representation, obligation, or warranty under this Agreement 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 request for service if Client fails to pay any amounts due under any invoice within fifteen (15) days of the due date. A request for service shall automatically terminate on the date that all services under the request for service are finally performed and all payments due under the request for service are made. Upon termination of a request for service, Client shall pay Service Provider for all Services rendered and expenses incurred by Service Provider relating to such request for service 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. All request for service shall terminate automatically upon the termination of this Agreement under any provision of Section 8.1.

8.3 Survival. The terms of this Agreement shall survive any termination or expiration of this Agreement or any request for service. The terms of Section 9 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. 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 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 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.

10.2 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.

10.3 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.

10.4 Complete Agreement. Except as set forth in this Section, This Agreement sets forth the entire understanding between the parties hereto and supersedes all prior agreements, arrangements and communications, whether oral or written, with respect to the subject matter hereof. Any purchase order issued by the Client shall be for its administrative purposes only and none of its terms and conditions shall be of any force or effect against Service Provider. No other agreements, representations, warranties or other matters, whether oral or written, shall be deemed to bind the parties hereto with respect to the subject matter hereof.

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. This Agreement may not be modified or amended except by the mutual written agreement of the parties.

10.7 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.

10.8 Right to Subcontract. Service Provider reserves the right to perform any of its obligations under this Agreement and the related requests for service through a subcontractor.

10.9 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.

10.10 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.

 

For contracts effective between January 27, 2015 and July 20, 2016.

1. Services.

1.1 Nature of Relationship. Client and Service Provider hereby enter into a non-exclusive pay-for-services relationship whereby Client may request and Service Provider may provide certain services to Client (the "Services"). Upon entering into this Agreement, all of Client’s requests for service and Service Provider’s work performed for Client, shall be subject to the terms and conditions contained herein (“Terms”).

1.2 Scope of Services. The scope of any services provided by Service Provider to Client shall be determined by the Client’s request for service. The foregoing notwithstanding, if Service Provider, at the request of or with notice to Client, performs work that is not covered by the initial request for service or that exceeds the initial request for service, 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 Third Party Products. If any request for service requires the provision of third party products, including hardware or software, Service Provider shall provide such products subject to the terms and conditions set forth on an attachment to the applicable invoice. Service Provider may invoice, collect, and receive from Client all sums that are or become due to such third parties, including taxes and shipping charges, as applicable.

2. Payment for Services and Expenses.

2.1 Hourly Rate/Holiday Schedule. Client shall pay Service Provider for the Services on a time and materials basis. The applicable hourly rate(s) may be found on Exhibit “A” to this Agreement, which is attached to this Agreement and hereby incorporated by reference. The rates found in Exhibit “A” are subject to change upon written notice subject to section 9.2 of this Agreement. A request for service made after notice of a change in hourly rates shall be deemed an acceptance of the modified terms.

2.2 Payment Terms. Client agrees to be invoiced for any and all services performed under this Agreement. Client further agrees to pay for all undisputed invoiced services. 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 from receipt 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.

2.3 Expenses. Unless otherwise specified in writing by both parties, 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, supplies, software, manuals, travel and lodging expenses, communications charges and computer time and supplies.

2.4 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.

3. Client Responsibilities.

3.1 Client Dependencies. In connection with Service Provider's provision of the Services, Client shall perform those tasks and fulfill those responsibilities Service Provider, in writing, makes a condition of service ("Client Responsibilities"). Client understands that Service Provider's performance is dependent on Client's timely and effective performance of Client Responsibilities hereunder and timely decisions and approvals by Client. Service Provider shall be relieved of its obligations hereunder to the extent that they are dependent on timely performance of the Client Responsibilities.

3.2 Work Acceptance/Rejection. If Client believes that a request for service has not been completed, Client shall verbally report the deficiency to the Service Provider’s representative before they leave the site. In any event, the work performed shall be deemed accepted if, within fifteen (15) business days after delivery, Client has not provided to Service Provider written notice identifying specifically the basis for disapproval of the work performed. 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.

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 request for service. 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 request for service. Client must provide the proper environment as specified by the manufacturer(s) of the equipment subject to the request for service, including, but not limited to temperature, humidity, and dust control.

4. Remote Connection.

 

4.1 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 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 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 Authority. Each party warrants and represents to the other party that it has full power and authority to enter into this Agreement and to carry out its obligations hereunder.

5.2 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 reperform any Services in breach of this warranty, where such breach is brought to its attention within fifteen (15) business days 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.

5.3 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.

5.1 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 concerning performance or non-performance by Service Provider, or in any manner related to this Agreement, for any and all claims, shall not in the aggregate exceed the fees and expenses paid by Client to Service Provider hereunder with respect to the applicable Services under the applicable request for service. 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 9.2, 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 5 represent the agreed-upon and bargained-for understanding of the parties and Service Provider's compensation for the Services reflects such allocations.

7. Indemnification.

6.1 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 directly caused by the gross negligence or willful misconduct 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, except to the extent any such claim is covered by the preceding indemnity obligations of Service Provider.

8. Termination.

8.1 Termination of Agreement. Either party may terminate this Agreement (a) with or without cause by giving the other party thirty (30) days' written notice of termination provided that all existing requests for service under this Agreement have expired or terminated.

8.2 Termination of Request for Service. Except as otherwise set forth in writing, a request for service, may be terminated if the other party breaches a material representation, obligation, or warranty under this Agreement 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 request for service if Client fails to pay any amounts due under any invoice within fifteen (15) days of the due date. A request for service shall automatically terminate on the date that all services under the request for service are finally performed and all payments due under the request for service are made. Upon termination of a request for service, Client shall pay Service Provider for all Services rendered and expenses incurred by Service Provider relating to such request for service 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. All request for service shall terminate automatically upon the termination of this Agreement under any provision of Section 7.1.

8.3 Survival. The terms of this Agreement shall survive any termination or expiration of this Agreement or any request for service. The terms of Section 9 shall survive any termination or expiration of this Agreement for a period of two (2) years.

9. HIPAA

8.1 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 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.

10.2 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.

10.3 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.

10.4 Complete Agreement. Except as set forth in this Section, This Agreement sets forth the entire understanding between the parties hereto and supersedes all prior agreements, arrangements and communications, whether oral or written, with respect to the subject matter hereof. Any purchase order issued by the Client shall be for its administrative purposes only and none of its terms and conditions shall be of any force or effect against Service Provider. No other agreements, representations, warranties or other matters, whether oral or written, shall be deemed to bind the parties hereto with respect to the subject matter hereof.

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. This Agreement may not be modified or amended except by the mutual written agreement of the parties.

10.7 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.

10.8 Right to Subcontract. Service Provider reserves the right to perform any of its obligations under this Agreement and the related requests for service through a subcontractor.

10.9 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.

10.10 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. If they do not reach such a solution within a period of sixty (60) days, 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 in a location agreed by the parties but, if the parties cannot agree on a location within thirty (30) days of the request for arbitration, the arbitration will be conducted at the AAA office having suitable facilities nearest Service Provider’s main offices; (4) the arbitrator will be selected from a list using the recommended selection method under the rules applicable to the arbitration proceeding; (5) 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 (6) the award of the arbitrator will be enforceable in any court of competent jurisdiction.