Rental Agreement Fixed Terms & Conditions
RENTAL AGREEMENT FIXED TERMS & CONDITIONS
F72-11 | Rental Agreement Fixed Terms | Rev. K | Remit to: SALES | Effective: 8-30-2023
Subject to the terms and conditions of this Rental Agreement, RENTER agrees to rent to RENTEE, and RENTEE agrees to rent from RENTER, the equipment ("Equipment") described on the attached Exhibit A. RENTER shall deliver, set up and test the Equipment to determine that it is in proper working condition. The Equipment shall be delivered to, and for the duration of this Agreement, remain at the location set forth in Exhibit A.
RENTER will not be liable for any damages which may be assessed against RENTEE in any action for infringement of any United States Patent, Trademark or Copyright. RENTER makes no warranty as to the treatment of this rental for tax or accounting purposes. RENTER makes no warranty as to the compliance of the equipment with applicable government regulations or requirements, which shall be the sole responsibility of the Vendor and/or manufacturer or the equipment. No representation or warranty as to the equipment or any other matter by the Vendor shall be binding on RENTER or in any way affect, any of RENTEE’s obligations to RENTER as set forth in this Rental Agreement.
- RENTER shall provide all necessary maintenance service to the Equipment, to be covered as part of this Rental Agreement.
- Pursuant to 2(a), RENTEE shall allow regular preventive maintenance procedures to be performed by RENTER at regular intervals during the term of this Agreement.
- RENTER's liability for maintenance shall be limited to the cost of parts and labor (including delivery charges) required to keep the Equipment in good working condition and operating in accordance with the published specifications of the manufacturer.
- RENTEE shall not permit anyone to perform service or repair on the Equipment without the prior consent of RENTER.
- If RENTEE requires maintenance of equipment due to misuse or neglect of the Equipment RENTER at its discretion shall bill RENTEE for any labor, travel or parts required to repair the Equipment.
- Services on Equipment will be provided Monday thru Friday, 8AM to 5PM local time of the RENTEE. If RENTEE requires services outside these coverage times, RENTEE will be billed for Labor and Travel at RENTER’S current billable rate.
Only properly trained technologists licensed by the state of operation where such licensing is required, shall be permitted to operate the Equipment. RENTEE shall provide these technologists, or cause them to be provided by the user of the Equipment.
- ON-SITE FACILITIES
RENTEE shall provide a level surface, adequate in size to accommodate the Equipment, together with electrical power meeting the manufacturer’s criteria for said Equipment. RENTEE’s Inspection: RENTEE shall make any and all necessary inspections and tests of the Equipment at RENTEE’s sole expense, including physicist’s reports and health inspections, within two days after installation thereof. Unless RENTEE within that time gives written notice to RENTER specifying any defect in the Equipment, RENTEE agrees that it shall be conclusively presumed, as between RENTER and RENTEE that RENTEE has fully inspected the Equipment and acknowledged that the Equipment conforms to the manufacturer's specifications, and that RENTEE has accepted the Equipment in such condition. Upon RENTER's receipt of any such notification, RENTER shall effect any repairs or maintenance required to correct any defects or conditions identified in RENTEE's notice so as to return the Equipment to good working condition in accordance with this Agreement, excepted however, that RENTEE shall be responsible for any and all modifications and/or alterations necessary as a result of regulatory requirements, including modifications and/or alterations to the electrical distribution systems, plumbing and water/waste systems, lighting, heating and air conditioning, structural systems, and code restrictions and requirements. It is agreed that in the event that such modifications/alterations delay the ability of RENTEE to perform the procedures for which the Equipment is intended, RENTEE shall continue to be responsible for and be obligated to pay the rent for the Equipment beginning on the original Commencement Date, whether or not RENTEE is able to utilize the Equipment to perform procedures.
- PREPARATION OF SITE
RENTEE shall have the sole responsibility for preparing the site for installation of the Equipment, including obtaining any necessary approvals for building modifications should the building site not be owned by RENTEE. It is agreed and understood that in order to install the Equipment and make it operative the site selected by RENTEE for the Equipment must be furnished with power (free of transients, dips and sags) at all times, water, waste, patient call system, fire alarm connections, and telephony in accordance with the documents heretofore furnished to RENTEE by RENTER. It is agreed that RENTEE shall have the responsibility, at its sole cost and expense, to prepare the site to comply with governmental requirements, including building codes, foundations, etc. and with the requirements set forth in said documents and to construct canopies or other improvements it desires. Such requirements and improvements must be constructed and ready for use no later than five (5) business days prior to the Commencement Date in order to permit RENTER to deliver and install the Equipment so that it is operative on the Commencement Date. It is agreed and understood that unless RENTEE performs to its responsibilities under this Agreement on a timely basis the Equipment shall not be operative on the Commencement Date. In such event, RENTEE shall continue to be responsible for and be obligated to pay the rent for the Equipment beginning on the Commencement Date, whether or not the Equipment is operative.
- RENTER Provided External Remote Monitoring Device (If Applicable)
If the External Remote Monitoring Device (“ERMD”) is included as part of the Agreement, RENTEE agrees to and understands the following:
- RENTER provides the ERMD free of charge to the RENTEE, however the ERMD remains the exclusive property of RENTER at all times.
- RENTEE will be required to provide power and network connectivity including, but not limited to, an IP address and sufficient internet access. Should RENTER require any additional work to ensure the ERMD’s complete functionality it will notify the RENTEE upon installation. The RENTEE will then be solely responsible for providing and ensuring any additional work be completed to ensure the ERMD’s complete functionality.
- RENTEE must allow the necessary network traffic through their firewall and VPN, if applicable, so the ERMD can communicate with RENTER’s external service that receives and process information. If RENTEE cannot provide to the ERMD the required connectivity to communicate with RENTER, RENTER will provide a wireless hotspot which the RENTEE will be billed $100 dollars per month on the billing invoice.
- RENTEE will notify RENTER if they make changes that may affect the ERMD’s functionality and/or ability to communicate with RENTER.
- The ERMD does not absolve or relieve the RENTEE of its sole responsibility to promptly report any known or suspected issues concerning the equipment and/or ERMD back to RENTER.
- Pursuant to Section 13, RENTER will not be liable for any damages and/or loss of revenue due to any problems identified or not identified by the ERMD
- RENTEE, or any other third-party who is permitted access to the RENTER ERMD will not tamper with, decompile, disassemble, reverse engineer, copy the software, duplicate the hardware and/or disseminate any of the information gathered by the ERMD. If the RENTEE discovers that the third-party hindered or interfered with the ERMD services, or acted in such a manner as described in this Section (7) the RENTEE must immediately report such action to RENTER.
- The ERMD does not have the ability to access any confidential patient information on the medical imaging equipment itself.
RENTEE shall pay to RENTER rental fees in the amount set forth in Rental Fee’s section agreement (not including applicable state and local taxes). RENTEE shall pay to the RENTER all applicable state and local taxes. The fixed rental fee for the first month's rent is due and payable upon execution of this Rental Agreement, and the remaining payments are due and payable as set forth in Exhibit A. Remittance of the rental fees shall be made to the following address:
MXR Imaging, Inc.
2301 Atlantic Avenue
Manasquan, NJ 08736
The term of this Agreement shall be the number of months or days set forth in the Term section located on the first page of this Rental Agreement.
RENTEE shall use the Equipment solely to perform diagnostic imaging for RENTEE's patients. Its use shall be in a careful and proper manner and shall comply with and conform to all applicable laws and regulations, and to instructions and procedures furnished or prescribed by RENTER. If Equipment is in a mobile trailer, it shall not be driven or otherwise moved by RENTEE during the term hereof, except when necessary to avoid damage to the Equipment, such as the case of fire or to comply with any applicable law or regulation. RENTEE is not permitted to move the mobile unit without prior written approval from RENTER.
RENTEE shall not, without the prior written consent of RENTER, make any alterations or improvements to the Equipment. All alterations or improvements of any kind or nature whatsoever made to the Equipment shall belong to and become the property of RENTER upon the expiration of this Agreement.
During the term hereof, RENTEE shall provide insurance coverage in form and amount and with insurance carriers acceptable During the term hereof, RENTEE will provide Liability insurance coverage in the amount of $1,000,000 and with insurance carriers acceptable to RENTER for all risks of loss, theft or damage to the Equipment in amounts equal to the full replacement cost of the Equipment (excluding depreciation) and comprehensive public liability and property damage insurance, which insurance policies will name RENTER as an additional insured and will provide that the policy may not be canceled or materially altered without thirty (30) days prior notice to RENTER. An accord certificate of insurance evidencing these categories will be provided to RENTER. RENTER will provide a VIN number valuation of the Equipment upon execution of agreement.
- RENTER shall indemnify RENTEE against and shall hold RENTEE harmless against any and all claims, costs, damages, liabilities and liens arising out of personal injury or property damage caused by the negligence of the RENTER or its agents.
- RENTEE shall indemnify, defend, and hold RENTER harmless from any and all claims, costs, damages, liabilities and liens imposed or incurred by or asserted against RENTER or its successors or assigns arising out of the rental, arising out or relating to this Agreement, or the use of the Equipment by RENTEE including without limitation attorney's fees and costs of suit. RENTER shall give RENTEE prompt written notice of the occurrence of any matter hereby indemnified against and agrees that upon such written notice, RENTEE shall assume full responsibility for the defense of such matter. This section shall survive termination of this Agreement.
- LOSS AND DAMAGE
RENTEE hereby assumes and shall bear the entire risk of loss of or damage to the Equipment from any and every cause during the rental term including damage caused from a lightning strike and/or electrical surges, dips and/or sags, not including ordinary wear and tear resulting from proper care and use of the Equipment. If RENTER itself provides the repairs, the measure of said loss or damage shall be RENTER's then current "time and materials" charges for said repairs. If RENTER determines that any item of Equipment is lost, stolen, or damaged beyond repair, RENTEE, at the option of RENTER, shall: (a) replace same with like Equipment in good repair; or (b) pay RENTER in cash all of the following: (i) all amounts then due and payable by RENTEE to RENTER under this Rental Agreement; and (ii) the unpaid balance of the total rent from the Term of this Rental Agreement attributable to said item. No loss or damage to the Equipment or any part thereof shall impair any obligation of RENTEE under this Agreement, except that if said loss or damage is the result of negligent or intentional acts or omissions by RENTER or its agents, the obligation to pay rent shall abate to the extent that the Equipment is rendered unusable as a result of said loss or damage. In the event that maintenance is required or damage is incurred to the Equipment, RENTEE shall promptly provide notice of such occurrence to RENTER.
- Fail to make timely payment of any sum of money due under this Rental Agreement; or
- Fail to perform any of its other obligations under this Rental Agreement; or
- Commit an act of bankruptcy or become the subject of any proceeding under the Bankruptcy Act, or become insolvent, or if any substantial part of the RENTEE's property should become subject to any levy, seizure, assignment, application, or sale for or by any creditor or governmental agency or if RENTEE transfers substantially all of its assets or merges or consolidates with or is acquired by any other person or entity other than an affiliate of RENTEE:
Then in such event, termination of this Rental Agreement may be exercised by the RENTER and the RENTER may enter on any premises wherever situated and disable the Equipment, and/or restrict access to the Equipment, and/or take possession of the Equipment and remove it from the premises, and/or pursue any other remedy that RENTER may have in law or equity, and none of said actions shall relieve RENTEE of any obligation or liability RENTEE would otherwise have under this Rental Agreement.
Upon the occurrence of the defaults set forth in Default section’s subparagraphs (a), (b) or (c) hereof, RENTER shall not exercise any of the remedies set forth herein until RENTER has sent RENTEE written notice of said default and RENTEE has failed to cure said default within five (5) days after receipt of said notice provided however, that if said event of default is such as to make RENTER reasonably insecure as to the protection of RENTER's ownership rights in the Equipment, or the preservation of the condition of the Equipment, or the guarantee of the RENTER’s access to the Equipment, or the guarantee of any payment due, then RENTER may take reasonable steps to protect RENTER's ownership rights, preserve the condition of the Equipment, and/or guarantee RENTER's access to the Equipment and/or guarantee any and all payments due, without regard to requirements of notice or rights to cure, including denying RENTEE’s access to the equipment. The exercise of any of the above remedies by RENTER shall not obligate RENTER to an extension of the term of this Agreement beyond the original termination date, whether or not there is a cure by RENTEE, and RENTEE shall forfeit any days of not being able to utilize the equipment as a result of its default. If any payment by RENTEE is past due for more than seven (7) days, RENTEE shall pay to RENTER, as additional rent, interest on such amount at the rate of 1.5% per month or, if less, the maximum allowable rate of interest permitted by applicable law. Any costs associated with any attempt by RENTER to enforce the conditions of this Agreement, including collection of payments due and costs for removal and transportation of the equipment, shall be borne by the RENTEE. This includes, but is not limited to, attorney’s fees and/or collections fees.
RENTEE shall provide all supplies necessary for the Equipment to function properly.
Upon the expiration or earlier termination of this Agreement, RENTEE shall return the Equipment to RENTER in good repair, condition and working order, ordinary wear and tear resulting from proper use thereof alone excepted. It shall be RENTEE’s obligation to ensure that patients’ protected health information is removed from the equipment prior to its return to RENTER.
Service of all notices under this Agreement shall be sufficient if given personally, or emailed, or mailed to the party involved at its respective address set forth herein, or at such address as such party may provide in writing from time to time. Any such notice mailed to such address shall be effective when deposited in the United States mail, duly addressed and with first class postage prepaid.
- GOVERNING LAW; JURISDICTION & VENUE; MEDIATION
This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of New Jersey. Jurisdiction and venue for the adjudication of any actions will solely lie in Monmouth County Superior Court, New Jersey. The Parties agree that, except to seek injunctive relief to prevent a breach of confidentiality, non-solicitation/compete, 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 hold a non-binding mediation privately without a mediator to fulfill this alternative dispute resolution provision. If the mediation is unsuccessful the resulting dispute and/or claims arising out of or related to this Agreement or its subject matter shall be brought exclusively in the State of New Jersey, Monmouth County Superior Court for any dispute related to or arising out of this Agreement. The Parties agree to mediate within forty-five days of the Party providing written notice of its desire to mediate.
- ENTIRE AGREEMENT
This Agreement, including any and all Exhibits attached hereto, constitutes the entire Agreement between RENTER and RENTEE and supersedes all proposals or prior agreements, oral or written, and all other communications, oral or written between the parties. This Agreement shall not be amended, altered or changed except by a written Agreement signed by the parties hereto. Should there be any inconsistency between the terms and conditions set forth in the main body of this rental agreement, and the terms and conditions specified via Addendum, the provisions of the Addendum will prevail and supersede the inconsistent provisions of the main body of this rental agreement.
The Rental Agreement shall be binding upon and inure to the benefit of the parties hereto, their legal representatives, permitted successors and assigns. RENTEE may not assign, by operation of law or otherwise, this Agreement or any interest herein without RENTER's prior written consent, which consent shall not be unreasonably withheld. The Equipment is, and shall at all times be and remain, the sole and exclusive property of RENTER, and RENTEE shall have no right, title or interest therein or thereto except as expressly set forth in this Agreement. The Equipment is, and shall at all times be and remain, personal property notwithstanding that the Equipment or any part thereof may now be, or hereafter become, in any manner affixed or attached to or upon real property or any building thereof, or attached in any manner which is permanent.
- SECURITY AGREEMENT
RENTEE shall execute such Financing Statements and Security Agreements as may be necessary for RENTER to perfect its security interest in and to said Equipment and shall assist RENTER with respect to filing of the same. At RENTER's discretion, the security interest in and to the Equipment of RENTER may be perfected prior to delivery.
- NO CONSEQUENTIAL DAMAGES
In no event shall Renter be liable for any loss of profits or other consequential damages or any inconvenience resulting from any theft of, damage to, loss of, defect in or failure of any of the Equipment or the time consumed in recovering, repairing, adjusting, servicing or replacing any Equipment; and there shall be no abatement or apportionment of rental during this time. This paragraph does not apply to theft, damage, loss, defect or failure that was the result of Renter's negligence.
- ACCESS TO RECORDS
RENTER agrees that upon the request of the Secretary of Health and Human Services or the Comptroller General or any authorized representatives of either of them, RENTER will allow them access to the contracts between RENTER and RENTEE, and to RENTER's books, documents and records necessary to verify the cost of the contracts, until a date four (4) years from the date that services provided for under the contracts are furnished and to the extent that RENTER carries out any of its duties through a sub-contract with a value or cost of $10,000 or more over a 12-month period, with a related organization, the RENTER will require the sub-contractor related organization to make available, upon request, to the Secretary of Health and Human Services or the Comptroller General or their duly authorized representatives, the sub-contract and the books, documents and records of the related organization that are necessary to verify the cost of the sub-contract until a date four (4) years from the date that service is provided for under the sub-contract are furnished.
With the sole exception of sales tax, RENTEE covenants to promptly report, file, pay and indemnify and hold RENTER harmless with respect to any Taxes, as herein defined as sales, use, excise, personal property, ad valorem, stamp, documentary and other taxes, and all other governmental fees, charges and assessments (general or special) due, assessed or levied by any foreign, federal, state, county or local government or taxing authority, and any penalties, fines or interest thereon, which are imposed against, upon or relating to the rental thereof including the rents or receipts due under this Rental Agreement, but shall not include any taxes solely based upon or measured by the income of RENTER. RENTEE will, upon request by RENTER, submit to RENTER written evidence of RENTEE's payment of all Taxes due hereunder. RENTEE shall file all tax returns for personal property taxes, and remit the amount thereof. Any tax returns filed by RENTEE shall show RENTER as the owner of the Equipment.
- ABSOLUTE RENTAL
This Rental Agreement is irrevocable for the full term and for the aggregate Rental Agreements as set forth in this Agreement. RENTER and RENTEE acknowledge and agree that this constitutes a net rental and that RENTEE’s obligation to pay all invoices and any and all amounts payable by RENTEE under this Agreement shall be absolute and unconditional and shall not be subject to any abatement, reduction, setoff, defense, counterclaim, interruption, deferment or recoupment for any reason whatsoever, and that such payments shall be and continue to be payable in all events. RENTEE acknowledges and agrees that RENTER is not the manufacturer of the Equipment, nor is RENTER the maintenance, repair or equipment warranty work provider and that RENTEE will not offset, withhold or fail to make any payment to RENTER by reason of any claim related to the manufacture of the Equipment or a defect in the Equipment or to maintenance, repair, or warranty work.
The attached Exhibit contains additional terms and conditions which are incorporated into this Rental Agreement.
- Exhibit A – Equipment Details
- Exhibit B – Installation Acceptance (Provided upon completion of installation)
- Exhibit C – Personal Guarantee
- Exhibit D – Consent & Waiver by Owner (If applicable)
- ACCEPTANCE OF TERMS
RENTEE shall be deemed to have accepted the terms of this Agreement by either: a.) signing the Agreement; b.) submitting a purchase order for the for the Equipment listed on the first page of this Agreement; c.) making a payment for the Equipment; or d.) submitting an electronic order for the Equipment.
- MISCELLANEOUS PROVISIONS
- Paragraph headings used in this Agreement are of no legal effect;
- If any provision contained in this Agreement is determined to be invalid, illegal or otherwise unenforceable, the remaining provisions shall be fully enforceable;
- Any forbearance by either party from enforcing any term of this Agreement shall not constitute a waiver of any right under this Agreement, unless stated in writing;
- This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. A copy of a signature received through telefax transmission or other electronic means (including in Adobe PDF or similar format) shall bind the party whose signature is so received as if such signature were an original;
- All Exhibits to this Agreement are expressly made a part of this Agreement as fully as though completely set forth in this Agreement;
- If payment is to be made to RENTER via bank wire transfer, RENTEE is responsible for calling and confirming the wire number and instructions prior to sending any payment. Should the RENTEE fail to meet its obligations by calling and verifying any bank wire transfer, and the RENTEE’S funds are misappropriated RENTER 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 RENTEE fails to meet its obligation, RENTER will not be responsible for damages associated therewith. The RENTEE will bare all costs for the outstanding payment owed to RENTER, including but not limited to, attorney fees and costs associated therewith. If a third party is submitting payment to RENTER on behalf of the RENTEE, RENTER must be notified and that third party must be a signatory to this agreement.
- RENTEE acknowledges that if a New York jurisdiction is determined, this Rental Agreement is intended to be a "Finance Rental" as defined in Section 2A-103(1)(g) of the New York Uniform Commercial Code. RENTEE further acknowledges that it is entitled, under Article 2A of the New York Uniform Commercial Code (as and to the extent that such Article, as amended from time to time, may be effect, "UCC2A") to the promises and warranties, including those of any third party, that are provided to RENTER by Vendor in connection with or a part of the contract by which RENTER acquired the equipment or the right to possession and use of the Equipment. RENTEE acknowledges that RENTEE may communication with Vendor and received an accurate and complete statement of those promises and warranties, including any disclaimers and limitations of them or of any remedies. RENTEE also acknowledges that it received the notifications contained in this paragraph from RENTER before RENTEE signed this Rental Agreement and the related Exhibits;
- Any changes, modifications, additions or deletions to this Agreement shall be in writing, via Addendum or Amendment, and fully signed by all Parties to this Agreement;
- If Radiation Emitting Equipment is being provided to RENTEE, RENTEE is responsible for any and all state requirements with regards to validating, measuring, testing, licensing or any and all items to remain compliant with state regulations. For rental of PET/CT and Nuc/Med trailers, RENTEE is responsible for performing dose calibration testing on the equipment in accordance with their state guidelines. In the event those tests fail, RENTEE will immediately: (i) cease using said equipment; and (ii) notify RENTER of failure. Any radioactive material will be handled by the RENTEE or designee authorized under the RENTEE’S radioactive materials license. Any failure to maintain compliance with the afore mentioned code will be the sole responsibility of the RENTEE.
- At the conclusion of this agreement, whether occurring by term or by breach, RENTEE will be responsible for any and all possible building modifications, as well as obtaining any approvals for required modifications from the landlord should the building site not be owned by RENTEE, that may be necessary to remove the equipment and return the site facilities to its original, pre-installation configuration.
F72-11 | Rental Agreement Fixed Terms | Rev. K | Remit to: SALES | Effective: 8-30-2023