Billable Services Terms & Conditions
MXR IMAGING, INC. (MXR) agrees to provide maintenance, repair and/or upgrade services (“Services”) to the Customer, on the diagnostic imaging equipment owned or operated by Customer (“Equipment”), along with replacement of certain parts, assemblies and accessories, in accordance with a Quote or Customer order. MXR’s quote and these terms and conditions (“Terms and Conditions”) are collectively referred to herein as the “Agreement.” Customer acceptance of MXR Services constitutes agreement to the following Terms and Conditions:
- SERVICE: Services will be provided during MXR’s normal business hours, 8:00 a.m. – 5:00 p.m. Monday through Friday, excluding MXR observed holidays, at MXR’s standard hourly-billed service rates then in effect for the type of Equipment being serviced, as well as any travel costs which includes but not limited to; Engineer travel time, airline tickets, car rentals or lodging, unless otherwise specified in the Service Proposal. Services during non-standard workweek hours will be provided at MXR’s overtime rates which are 1.5x outside business hours Monday through Friday or Saturday, or 2x Sunday or MXR observed holidays. A copy of MXR billable hourly rates will be provided to Customer upon request.
- SERVICE MATERIALS: In connection with the installation, configuration, maintenance, repair, upgrade and/or de-installation of the Equipment, MXR may deliver to and store at Customer’s site materials, tools or software needed to complete the job which have not been purchased or licensed to the Customer. Customer hereby consents to this delivery, storage, use, and possibly presence of MXR’s locked cabinet or box at Customer site for storage of this property, and to MXR removal of all or any part of this property at any time, all without charge to MXR. The presence of this property within Customer’s site will not give Customer any right or title to materials and tools, or any license or other right to access, use or decompile software. Any access to or use of materials or tools, and any use or de-compilation of software by anyone other than MXR personnel is prohibited. Customer agrees to use all reasonable efforts to protect this property against damages or loss and to prevent any access to or use. Customer also agrees to immediately report to MXR any violation of this provision known by Customer.
- THIRD PARTY ORGANIZATIONS: (a) In the event Customer has contracted with a third party service management organization, asset management company, maintenance management company, technology management company, maintenance insurance organization, group purchasing organization or the like (“Third Party Organization”) for the purposes of centralized billing and management of services provided to Customer, MXR agrees per Customer’s written request to route invoices for payment for Services rendered by MXR to such Third Party Organization and accept payment from them on Customer’s behalf. The written request must include Company name, address, phone number, contact name, and effective date. Until MXR receives a written notification, Customer agrees to pay for all Services. Notwithstanding the above, Customer agrees that the Services provided by MXR are pursuant to the items and conditions set forth in this Agreement (unless otherwise provided herein), and Customer guarantees the payment of all monies due or that may become due under this Agreement, in spite of any collateral obligations Customer may have with such Third Party Organization or any payment Customer may have made to the Third Party Organization. MXR has no contractual relationship for the Services rendered to Customer except as set forth herein. To the extent that the parts and Services MXR provides are not covered by Customer arrangement with such Third Party Organization, Customer agrees to promptly pay for such parts and Services on Customer’s own account. (b) Order of Precedence: MXR Service Contract Offering and/or Quote and these Terms and Conditions supersede all prior agreements with respect to the Services, provided, however, if you are a qualified participant in a third party group purchasing organization (GPO) with which Seller has an active contract or other mutually-agreed arrangement (GPO Agreement), the order of precedence among any conflicting terms and conditions applicable to the Services shall be (i) the terms of the GPO Agreement, (ii) the Quotation, and (iii) these Terms and Conditions.
- FORCE MAJEURE: Neither party will be liable for any failure or delay in performing an obligation under this Agreement that is due to any of the following causes, to the extent beyond its reasonable control: acts of God, accident, riots, war, terrorist act, epidemic, pandemic, quarantine, civil commotion, breakdown of communication facilities, natural catastrophes, governmental acts or omissions, changes in laws or regulations, national strikes, fire, or explosion.
For the avoidance of doubt, Force Majeure shall not include (a) financial distress nor the inability of either party to make a profit or avoid a financial loss, (b) changes in market prices or conditions, or (c) a party's financial inability to perform its obligations hereunder.
- CUSTOMER RESPONSIBILITIES: In order for MXR to perform its duties and obligations under this Agreement (including warranty obligations), Customer agrees to:
(a) Provide and maintain a suitable, safe and hazard-free location and environment for MXR personnel and subcontractors to install, service, and remove from service the Customer equipment, including the installation of purchased equipment and parts,
(b) Provide MXR access to all the software disks and documentation that the Original Equipment Manufacturer provided with the equipment that MXR needs to perform Services hereunder,
(c) Ensure unrestricted and safe access to the equipment (including parts, network cabling, and other communication equipment as necessary) by MXR employees and representatives, and cooperate with MXR employees and representatives in their performance of Services; and.
(d) If Radiation Emitting Equipment is being serviced, Customer is responsible for any and all state requirements with regards to validating, measuring, testing, licensing, and any and all items to remain compliant with state regulations. In addition, any radioactive material will be handled by the Customer or Customer’s Designee authorized under the customer’s radioactive materials license. Any failure to maintain compliance will be the sole responsibility of the Customer.
(e) Customer is responsible for being HIPAA compliant regarding the storage, transfer, retention, and/or deletion of any PHI or related information on the Equipment.
(f) It is the Customer’s responsibility to maintain compliance with OEM recommendations on software revision/upgrades, resolving recalls, and addressing preventative measures recommended by the OEM. Customer acknowledges and agrees they are responsible and liable for any matters due to not being current on OEM recommendations.
(g) Customer is responsible and liable for any legal matters, pertaining to Patient Health Information (PHI), including but not limited to, implementation, dissemination, and/or misappropriation of PHI on the Equipment.
- DEINSTALL/EQUIPMENT REMOVAL (if applicable):
(a) Customer warrants that it is the sole owner of the equipment and will transfer good, clear title thereto, free of any known or unknown encumbrances, liens, or claims of title hostile to Customer. Customer agrees to indemnify and hold harmless MXR against any and all claims, judgments, costs, expenses, damages or claims relating to Customer’s failure to transfer good title to MXR or its agent,
(b) Customer agrees that to the extent legally permissible, it will transfer its right to licensed use of operational and diagnostic software and other peripheral systems normally used with the equipment, and
(c) Enforcement: Customer shall indemnify and save harmless MXR for any reasonable attorney’s fees, costs, expenses and/or damages arising out of any action instituted by MXR in connection with enforcement of any terms or provisions of this Agreement and/or any litigation for breach of this Agreement.
- AGENT OF CUSTOMER: The Customer agrees that MXR may act as an agent of the Customer for the limited purposes of securing a manufacturer’s or OEM’s onsite service, documentation, software and tools needed for MXR to perform services on the Equipment covered under this Agreement. MXR may not bind the Customer to any other contract or agreement, or incur financial liability for the Customer without Customer’s prior written consent. Notwithstanding the above, nothing in this Agreement shall be construed to designate MXR, or any of its employees, or MXR’s service contractors or any of their employees, as Customer employees, agents, joint ventures or partners.
- LIMITED WARRANTIES: MXR warrants that parts sold or otherwise provided hereunder will be functional for a ninety (90) day limited warranty period. THE WARRANTIES IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES. MXR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Written warranty claims shall be made by Customer through MXR’s standard Return Material Authorization process, either by calling or e-mailing Customer Service using the information on the Service Proposal above.
Limitations of Remedies and Liability: MXR will promptly re-perform any non-conforming Services, provided all claims for Service non-conformity are communicated to MXR in writing within ninety (90) days from the date the original Services were performed. All claims for defective parts must be made within ninety (90) days of receipt by the Customer. MXR will, at its option, repair, replace, or credit any parts that it determines are defective; provided that the Customer’s conduct has not caused or contributed to the defect.
Except as provided below with respect to tort liability arising from gross negligence or willful misconduct, or to extent the following indemnity provision below is applicable, MXR’S MAXIMUM CUMULATIVE LIABILITY TO CUSTOMER UNDER THIS AGREEMENT MAY NOT EXCEED THE PRICE OF THE SERVICE OR PARTS INVOLVED IN THE CUSTOMER CLAIM. IN NO EVENT SHALL MXR BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION, LOST REVENUES OR PROFITS, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES WHETHER ARISING FROM BREACH OF THE TERMS IN THIS AGREEMENT, BREACH OF WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY. MXR SHALL HAVE NO LIABILITY FOR ANY ASSISTANCE NOT REQUIRED UNDER THIS AGREEMENT THAT MXR OR ITS EMPLOYEES OR SUBCONTRACTORS PROVIDED TO THE CUSTOMER.
NEITHER PARTY SHALL HAVE ANY TORT LIABILITY TO THE OTHER ARISING FROM THIS AGREEMENT, EXCEPT TO THE EXTENT EITHER PARTY COMMITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
Customer will indemnify, defend, and hold MXR harmless from and against any and all claims, costs, damages, liabilities (including negligence, tort and strict liability), demands, actions, suits, and proceedings, losses, costs, expenses and damages, including reasonable attorneys’ fees and costs of suit and liens imposed or incurred by or asserted against MXR (collectively, “Claims”) or its successors or assigns arising out of or relating to this Agreement, the use of the Equipment, including Claims relating to the manufacture, selection, purchase, delivery, possession, condition, use, operation, return or other disposition of the Equipment. MXR will give Customer prompt written notice of the occurrence of any matter hereby indemnified against and agrees that upon such written notice, Customer will assume full responsibility for the defense of such matter. This section will survive termination of this Agreement.
- CONFIDENTIALITY OF INFORMATION: MXR, its employees, representatives and subcontractors will treat any of Customer’s patients’ Protected Health Information (PHI) to which it may have access during the performance of the Services as confidential and will comply with all privacy laws protecting individually identifiable patient health information. Each party will treat all information of the other party as confidential. The pricing, terms of sale and other information contained in or disclosed by MXR under this Agreement, whether disclosed in writing or disclosed verbally, are confidential regardless of any lack of markings thereon. Customer may not disclose such pricing, terms of sale and other information to any other party without MXR’s prior written approval, except for any legally required disclosure, in which case Customer shall give prior written notice to MXR. Each party reserves the right to enforce these confidentiality restrictions against a party who wrongfully discloses, receives and/or further disseminates confidential information of the complaining party, including seeking injunctive relief. Terms regarding confidentiality shall survive the expiration of this contract. Confidential Information shall not apply to (i) information that is or was already in the possession of receiving party at the time of disclosure by disclosing party; (ii) information that is or becomes in the public domain other than as a result of an unauthorized disclosure by the receiving party; (iii) information that is already known by a third party with a legal right to disclose; (iv) information that is independently developed without the use or reference to the disclosing party’s confidential information;, or (v) is required by law or judicial order to be disclosed.
- BUSINESS RELATIONSHIP: Neither Party nor its employees shall, for any purpose, be deemed to be an agent or employee of the other Party. The Parties are not partners or members of a joint venture. Neither Party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other Party in any respect whatsoever without prior written consent and approval by the other Party.
- SUBCONTRACTS AND ASSIGNMENTS: Neither party may assign any of its rights, duties or obligations under this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld; provided, that either party may transfer and assign this Agreement without the other party’s consent to any person or entity (except to a MXR competitor) that is an affiliate of such party, or that acquires substantially all of the stock or assets of such party, provided further, such assignee agrees, in writing, to be bound by the terms of this Agreement. Subject to such limitation, this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. MXR may hire qualified subcontractors to perform Services under this Agreement; provided MXR will at all times remain responsible for the performance of its duties and obligations hereunder.
- RECORD RETENTION AND ACCESS: If the Customer notifies MXR in writing that this Agreement is subject to records retention requirements under federal law, MXR will retain and make available and insert the requisite provision in each applicable subcontract requiring its subcontractors to retain and make available, the contracts, books, documents and records to the persons, upon the requests, and for the period of time as required by such Act. It is the Customer’s sole responsibility to comply with all cost reporting obligations under federal and state laws concerning the services and parts received under this Agreement
- WAIVER, SEVERABILITY, DISPUTES: This Agreement may be amended only in writing signed by authorized officers or representatives of both parties. Any failure to enforce any provision of this Agreement is not a waiver of that provision or of either party’s right to later enforce each and every provision. If any part of this Agreement is found to be invalid, the remaining parts will be effective. In the event of a dispute arising out of this Agreement, Customer and MXR agrees to negotiate in good faith to discuss and attempt to resolve the issues that are the subject of the dispute.
- PAYMENT TERMS: Invoices are payable in United States currency only to the address listed on MXR’s invoice. Unless otherwise expressly stated in the Proposal, terms for services and parts delivery in USA and Canada are net cash on or before the thirtieth (30th) day following the date of invoice. A 3.5% convenience fee will be charged for all credit card payments. Failure to make timely payment(s) is a material breach of this Agreement, for which (in addition to other available remedies) MXR may suspend performance of other MXR agreements until all past due amounts are brought current. If MXR so suspends performance, MXR will not be responsible for the completion of planned maintenance due to be performed during the suspension period, and any product downtime will not be included in the calculation of any uptime commitment.
- Overdue payments shall be subject to finance charges computed at a periodic rate of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law. Customer will reimburse MXR for reasonable costs (including attorneys’ fees) relating to collection of past due amounts. Any credits that may be due to Customer under this Agreement or any other MXR agreements may be applied first to any outstanding balance. If Customer does not make any payments for services or parts within forty-five (45) business days after such payments are due, MXR may, upon ten (10) business days prior written notice to Customer, enter upon Customer’s site and remove the parts.
- Customer will be subject to MXR’s ongoing credit review and approval process. Payment terms may change based on a change to Customer’s credit status, with prior written notice from MXR.
- If payment is to be made to MXR via bank wire transfer, Customer is responsible for calling and confirming the wire number and instructions prior to sending any payment. Should the Customer fail to meet its obligations by calling and verifying any bank wire transfer, and the Customer’s funds are misappropriated MXR will not be responsible for such. If a third party engages in bank wire fraud, misappropriation of funds, and/or a security breach after the Customer fails to meet its obligation, MXR will not be responsible for damages associated therewith. The Customer will bare all costs for the outstanding payment owed to MXR, including but not limited to, attorney fees and costs associated therewith.
- PURCHASED EQUIPMENT AND PARTS: The following provisions shall apply only to the purchase of equipment or parts from MXR:
- Acceptance: Unless expressly provided otherwise in this Agreement, Customer shall be deemed to have accepted the equipment or parts delivered by MXR on the earlier date of: (i) when MXR installs the equipment or part, five (5) business days after MXR notifies Customer that it has completed assembly and the equipment or part is functioning; (ii) when MXR does not install the equipment or part, three (3) business days after delivery of the equipment or part to Customer; or (iii) the date Customer first uses the equipment or part to provide imaging services to patients.
- Order Cancellation: Customer purchase orders accepted by MXR are not subject to change except upon written agreement. Purchase orders accepted by MXR are non-cancellable by Customer except upon MXR’s written consent. The cancellation by Customer of any order for a MXR price list item prior to delivery shall be subject to a cancellation charge of not less than ten percent (10%) of the order value to cover costs of processing and order handling.
- Transportation, Title and Risk of Loss: Equipment and parts will be shipped to Customer Free-On-Board (F.O.B.) pursuant to Section 2-319 of the Uniform Commercial Code. For parts purchases, Customer is responsible for paying for freight and insurance against property damage or loss until delivery to Customer. Title to and risk of loss of parts passes to Customer at MXR’s shipping dock. For equipment purchases, MXR is responsible for paying for freight and insurance against property damage or loss until delivery to Customer. Title and risk of loss to equipment passes to Customer at Customer’s shipping dock.
- Specifications: All parts may be subject to MXR’s standard specifications and tolerances. MXR reserves the right to make modifications and substitutions in the specifications of any part, provided, that the modifications or substitutions do not materially affect the performance of the equipment and part or the purposes for which they can be used.
- Returns: Parts may not be returned to MXR without MXR’s prior written authorization. All returns are subject to a minimum thirty percent (30%) restocking fee.
- Exchange: MXR exchange replacements are to be returned within five (5) business days after the Customer receives the replacement part. The exchange is to be sent to MXR using MXR’s standard Return Material Authorization (RMA) process with the RMA Number clearly visible on the box. If the exchange part is not returned within five (5) business days, the Customer will be charged a daily fee of One Hundred and Fifty Dollars ($150.00). If the exchange part is not returned within thirty (30) business days, the Customer will be sent an invoice for the current market value of the part.
- Ultrasound parts and repairs: Refer to the Transactional Ultrasound Terms & Conditions located on the MXR website at: https://mxrimaging.com/Transactional-US-Terms-and-Conditions.
- PARTS AND REPLACEMENTS: MXR reserves the right to use new or refurbished parts, and parts acquired from third parties as long as the parts are compliant to MXR’s quality assurance standards and processes. Any part for which MXR has supplied a replacement part shall become property of MXR.
- CUSTOMER PROVIDED PARTS: Customer may source their own parts with the following stipulations:
- In the event Customer finds another source for the part(s) at a lower cost, Customer will give MXR the opportunity to price match. If MXR matches the price, Customer agrees to purchase the part(s) from MXR.
- If the Customer provided part(s) is Dead on Arrival (DOA) or not the correct part(s), Customer will be billed for the travel time and a minimum of two hours labor at the then standard rates.
- If the Customer provided part fails within 90 days of installation, Customer will be responsible to pay MXR for the travel and labor time to replace the part(s), as well as the cost of the new part(s) if purchased through MXR
- RECORD RETENTION AND COST REPORTING: If the Customer notifies MXR in writing that this Agreement is subject to records retention requirements under federal law, MXR will retain and make available and insert the requisite provision in each applicable subcontract requiring its subcontractors to retain and make available, the contracts, books, documents and records to the persons, upon the requests, and for the period of time as required by such Act. It is the Customer’s sole responsibility to comply with all cost reporting obligations under federal and state laws concerning the services and parts received under this Agreement.
- TAXES: Unless MXR receives a tax exemption certificate from Customer that is acceptable to the taxing authorities, Customer agrees to pay all applicable taxes arising from this Agreement, including any sales, use, excise, property, or similar federal, state, or local taxes. Customer will promptly reimburse MXR for all amounts paid or payable by MXR in discharge of the foregoing taxes.
- DEFAULT: Customer default under this Agreement, or a default by Customer or any entity managed or controlled by Customer, or by any principal, agent, Third Party Organization or other entity of Customer’s under any other order or contract with MXR, regardless of when the order or contract was entered into, will entitle MXR, at MXR’s sole option, to (a) commence collection activities for all sums due hereunder, including costs and expenses of collection and reasonable attorneys’ fees, (b) withhold performance under any or all of the other orders and contracts between MXR and Customer until a reasonable time after all defaults have been cured, (c) declare all sums, due and to become due, to be immediately due and payable under any or all the other orders and contracts between MXR and Customer, and/or (d) do anything else which the law permits.
- OEM SOFTWARE: Customer acknowledges and agrees any software Seller installs on Customer’s Equipment is not developed or manufactured by Seller, but rather a 3rd Party Software Vendor, therefore Seller has no liability related to any issue that may arise due to malfunctions, defect, failure, error, and/or vulnerability or perception of such of said software.
Seller may advise Customer about newer software releases that may be available for Customer’s Equipment, and in some cases, Seller may have the ability to upgrade/update said software; however, Customer acknowledges and agrees that Seller’s mere notification and implementation of an upgrade does not deem Seller liable for the failure to upgrade in accordance with OEM standards. If Seller upgrades the Equipment, it may request Customer’s prior written approval to perform the upgrade or update.
- GOVERNING LAW; JURISDICTION AND VENUE; MEDIATION: This Agreement shall be governed by, construed and enforced in accordance with the laws of the State in which the Services are performed, United States of America. Jurisdiction and venue for the adjudication of any actions will solely lie in the state or federal courts in the State in which the Services are performed. The parties agree that, except to seek injunctive relief to prevent a breach of confidentiality or intellectual property rights, they will enter into a non-binding mediation process with a well-recognized, professional mediator in a good faith attempt to settle any disputes under this Agreement, prior to resorting to litigation. The parties may at their own election, if they mutually agree to hold a non-binding mediation privately without a mediator to fulfill this alternative dispute resolution provision.
- INSURANCE: MXR and customer shall each carry workers compensation, employer’s liability, general commercial, and product liability insurance with well-recognized insurance carriers in commercially reasonable amounts covering their acts or omissions. Customer shall carry property insurance covering the equipment against damage or loss. MXR will assure that its qualified subcontractors carry commercially reasonable insurance coverages as described above.
- BREACH OF CONTRACT: If either party otherwise materially breaches this Agreement, the other party may notify the breaching party in writing, describing the breach, and the breaching party will have thirty (30) business days following such notice to remedy the breach. If the breaching party fails to remedy the breach during that period, the other party may, by written notice, terminate this Agreement.
- ENTIRE AGREEMENT: This Agreement is intended to be the complete and exclusive statement of the terms of this contract between the Customer and MXR. No prior proposals, statements, course of dealing, course of performance, or usage of the trade or industry standard will be part of this contract. Except as provided in Section 4 herein, any additional or different terms and/or conditions contained in any purchase order or other document issued by Customer, Customer’s agents or representatives, or otherwise relating to the Services to be provided hereunder, will have no force or effect, and will not be binding upon MXR unless otherwise expressly agreed in a writing signed by MXR’s authorized representative.
F72-0B | Billable Services Terms and Conditions | Rev. H | Remit to: SALES | Effective: 8-9-2023