Service Contract Terms & Conditions

Services Terms and Conditions

1. Agreement: The customer identified on the Service Proposal attached hereto (hereinafter referred to as “Customer”) has agreed to purchase, and MXR Imaging (hereinafter referred to as “MXR”) has agreed to provide, certain maintenance, repair, update and/or upgrade services (the “Services”) upon the terms and conditions set forth on the Service Proposal, the attached Equipment Coverage Details, and these Terms and Conditions (collectively, the “Agreement”). MXR and the Customer have caused this Agreement to be executed by their duly authorized officers or representatives, effective as of the later date of authorized signature hereon.
2. Order of Precedence: This Agreement comprises the entire agreement between the parties and supersedes all prior proposals, quotations, agreements, promises, or representations between the parties, whether verbal or written. The terms of this Agreement will prevail notwithstanding any variance with the terms of any present or future purchase or service order or request by the customer for services. In the event of any conflict between terms, the order of precedence shall be (a) the Service Proposal, (b) the Equipment Coverage Details, and (c) these Terms and Conditions. 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.
3. Additions and Deletions or System Upgrades from Service Coverage and Additional Services: Customer shall notify, consult, and receive validation from MXR in writing prior to (i) adding or deleting equipment, or (ii) upgrading existing system hardware or software to provide additional clinical functionality, or (iii) changing parts or other items to this Agreement after the initial inspection for service coverage described below.
   All additions, deletions or hardware/software upgrades outside the scope of this Agreement will be subject to new pricing, and will be quoted prior to being incorporated into this Agreement.
   For services requested by Customer outside of the Agreement, MXR may provide additional and separately-billed services such as: (i) instructions to Customer in the operation of the Equipment; (ii) the addition or removal of accessories, attachments, or other devices from the Equipment; (iii) the movement or relocation of the Equipment; (iv) resolution of problems or services caused by or necessitated by the unauthorized actions of Customer, third parties or external sources, including breach of warranties by the original manufacturer of the Equipment; (v) increase in service time necessitated by Customer’s operator error; (vi) repair due or damage from any cause other than ordinary use; and/or (vii) repair of damage or increase in service time caused by unauthorized alterations including, but not limited to, deviation from circuit or structural design of the equipment as provided by the original manufacturer(s) or MXR.
4. 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.
5. Amendment; Waiver; Survival: 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. The terms of this Agreement which by their nature are intended to survive its expiration (such as confidentiality provisions and Customer’s obligation to pay any amounts owed to MXR) will continue in full force and effect.
6. Assignment; Use of Subcontractors: 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.
7. Billable Service Calls: Service calls requested by Customer outside of this Agreement are billed by MXR at the then current regular and overtime rates for travel and on-site labor plus all applicable reasonable travel expenses. The customer will be provided a quotation for any equipment parts that need to be replaced. The customer authorizes MXR to perform and invoice for the service by scheduling the call. Billable service calls may be canceled by the customer with a minimum of twenty-four (24) hours written notice and the customer will have no liability whatsoever for timely cancellations.
8. Confidentiality: 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.
9. Coverage Terms for Service Support: For services set forth on the Service Proposal, MXR will supply all labor required for preventive and scheduled maintenance and remedial repairs on the Customer’s equipment as described in the Equipment Coverage Details. MXR will perform all maintenance services in accordance with the maintenance programs set forth in the applicable manufacturer’s service manuals. MXR may also replace all unserviceable parts with new or equivalent parts as specified by MXR on the initial inspection report described below; and as provided in this Agreement.
10. Initial Inspection (If Applicable): If equipment is new equipment to be serviced by MXR and not a renewal, within thirty (30) calendar days of the effective start date of this Agreement, MXR (or its authorized subcontractor) shall inspect each item of the Customer’s equipment and review all logs and documentation associated with it to determine its eligibility for service coverage hereunder. If MXR’s inspection reveals that an item of equipment is inoperable or in need of substantive repair, MXR will notify customer within ten (10) business days of the date of inspection and provide a written estimate of the cost of repair at MXR’s then-current list prices/rates for time and materials. Service requests made prior to the completion of the inspection that require part(s) replacement will be treated as a pre-existing condition and the part repair or replacement will be invoiced to the Customer. Equipment identified by MXR as requiring repair service but not authorized for repair or otherwise repairable by Customer will be removed from service support under this Agreement and deleted from the Equipment Coverage Detail until such repair is completed. If Customer does not permit MXR to conduct its inspection within the above thirty (30) calendar day period, or if any items of equipment are in storage, not in use or otherwise not available for inspection during the thirty (30) calendar day inspection period, Customer will be responsible for all repairs necessary to bring that item of equipment into safe operable condition before MXR will provide service coverage for it.
11. Parts and Replacements; Exclusions: 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. Installation of parts not supplied by MXR or its representative without prior written consent of MXR constitutes a material breach of this Agreement.
    Consumable items, accessories, networking hardware and software, printers and other peripherals are not covered under this Agreement. Parts that are deemed cosmetic or accessory in nature may be replaced at cost to the Customer.
12. Customer Provided Parts: If Equipment covered does not include parts replacement as specified in the Coverage Details section(s), or part(s) being replaced is not covered under the scope of the contract, customer may source their own parts with the following stipulations;
    1. 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.
    2. 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 rates listed in the Coverage Details
    3. 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 part(s) if purchased through MXR
13. CT Tube Usage Tracking (If Applicable): Customer agrees to allow MXR to review CT usage information during each preventative maintenance visit. This information will be input into MXR’s service/ticketing system. If any CT equipment covered on this contract is entitled to unlimited tube coverage it will be used to determine if customers usage of the CT is as agreed to in the Coverage Details section of the Equipment.
14. Unlimited CT Tube Coverage (If Applicable): If tube coverage is unlimited as defined in the Coverage Details section(s) of this agreement, MXR will provide unlimited replacement tubes during the term if customer remains below the usage metric identified in the Coverage Details section of the equipment which will be one of the following; (i) Patient Count, (ii) mAs, (iii) Gantry Rotations, or (iv) Scan Seconds. If Customer exceeds the limit by 10% or more, Customer agrees to pay an overage fee indicated in the Coverage Details section, or renegotiate the remainder of the contract. If Customer is unwilling to pay the overage fee, the equipment in question will be changed from unlimited tube coverage to one tube replacement for the full contract term.
15. Increase in Cryogen Costs (If Applicable): Customer acknowledges the volatile nature of the market with regard to helium costs, and MXR’s lack of control of such costs. In the event that helium costs to MXR increase during the term of this Agreement or any renewals, MXR reserves the right, upon thirty (30) days written notice, to pass along the increase helium costs in the form of an increase in the Agreement charges.
16. MRI Chiller (If Applicable): Customer acknowledges and agrees to monitor the chiller to make sure it is fully operational and functioning properly. In the event that the Customer becomes aware of any chiller issue, failure, and/or malfunction the Customer must immediately notify MXR.
    MXR at its discretion may bill the Customer for any service provided, including but not limited to, labor, parts, and/or cryogens associated with the related MRI.
    Even if the chiller is covered as part of the Coverage Entitlements for the Customer’s MRI, Customer acknowledges it is still their sole responsibility and obligation to fully monitor the chiller. If Customer does not immediately notify MXR of any issue, failure, and/or malfunction then MXR may at is sole discretion bill Customer for any services charges necessary to guarantee the chiller and associated MRI is fully operational.
17. MXR Provided External Remote Monitoring Device (If Applicable): If the External Remote Monitoring Device (“ERMD”)is included as part of the Agreement, Customer agrees to and understands the following:
    1. MXR provides the ERMD free of charge to the Customer, however the ERMD remains the exclusive property of MXR at all times.
    2. Customer will be required to provide power and network connectivity including, but not limited to, an IP address and sufficient internet access. Should MXR require any additional work to ensure the ERMD’s complete functionality it will notify the Customer upon installation. The Customer will then be solely responsible for providing and ensuring any additional work be completed to ensure the ERMD’s complete functionality.
    3. Customer must allow the necessary network traffic through their firewall and VPN, if applicable, so the ERMD can communicate with MXR’s external service that receives and process information. If Customer cannot provide to the ERMD the required connectivity to communicate with MXR, MXR will provide a wireless hotspot which the customer will be billed $100 dollars per month on the billing invoice.
    4. Customer will notify MXR if they make changes that may affect the ERMD’s functionality and/or ability to communicate with MXR.
    5. The ERMD does not absolve or relieve the Customer of its sole responsibility to promptly report any known or suspected issues concerning the equipment and/or ERMD back to MXR.
    6. Pursuant to Section 26, MXR will not be liable for any damages and/or loss of revenue due to any problems identified or not identified by the ERMD
    7. Customer, or any other third-party who is permitted access to the MXR 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 Customer discovers that a third-party hindered or interfered with the ERMD services, or acted in such a manner as described in this Section (g) the Customer must immediately report such action to MXR.
    8. The ERMD does not have the ability to access any confidential patient information on the medical imaging equipment itself.
    9. The ERMD is the property of MXR, and will be returned by Customer upon termination of this Agreement. Customer will be invoiced for any replacement cost of the ERMD if it is not returned within thirty (30) days of termination of Agreement.
18. Uptime Guarantee for Services Only: If an Uptime Guarantee is referenced in the Equipment Coverage Details, MXR will guarantee the Equipment can be used for scanning patients for a defined percentage of the total coverage hours in a given year. For the purposes of calculating the uptime there will be two measurements, Base Time and Downtime. Base Time is defined as the total covered hours of the contract for a one (1) year term, so for example if the contracted hours of coverage are 8am to 5pm Monday through Friday there would be a total of 2,340 Base Time Hours (9 hours a day x 5 days a week x 52 weeks a year). Downtime is defined as the total number of hours the Equipment is unable to scan patients during covered hours excluded exceptions as referenced in this clause. For example if the contracted hours of coverage are 8am to 5pm Monday through Friday, MXR receives a call at 6:00am on Monday, and the system is available for scanning at 10:00am Monday there would be 2 hours of downtime as the two hours between 6:00am and 8:00am are not time covered under the contract. The formula for determining the uptime percentage will be (Base Time – Downtime)/Base Time.
    
    The following are reasons why downtime events would not be included in this calculation
    1. Scheduled Preventative Maintenance
    2. If MXR is prepared to perform maintenance services to make the Equipment operational but such service is refused by the Customer or is deferred by the Customer until a later time or date
    3. If the Equipment is not otherwise made available to MXRs’ service engineers
    4. If the Equipment is down is due to, associated with, or caused by misuse, negligence, or operator error
    5. Inadequate environmental conditions (not conforming with the environmental specifications outlined by the OEM), including temperature and humidity, line power exceeding OEM's requirements of voltage, frequency, impulses or transients
    6. Acts of God or other force majeure events
    
    If the equipment uptime level is found to be less than the guaranteed percentage over an annual period, as computed in accordance with the above guidelines, MXR will extend the term of this agreement by one week for each 1% point less than the contracted uptime (e.g., if contracted uptime is 96% and actual uptime is 93% MXR would extend the contract by 3 weeks)
19. Customer Responsibilities: In order for MXR to perform its duties and obligations under this Agreement (including warranty obligations), Customer agrees to:
    1. 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.
    2. 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.
    3. 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 under this Agreement. Customer shall notify MXR of any mobile equipment location(s) upon execution of this Agreement. Mobile equipment traveling more than fifty (50) miles from the original Customer location is excluded from the designated on-site response time and subject to additional travel charges.
    4. Promptly place service calls in accordance with any reasonable MXR protocols provided to Customer.
    5. Customer is responsible for reporting helium levels weekly back to MXR either by emailing CISHeliumReadings@mxrimaging.com or calling the main service number at 866-310-0071, Option 1.
    6. Establish and maintain security, virus protection, backup and disaster recovery plans for any data, images, software or equipment. This responsibility includes maintaining secure network and network security components, firewalls and security-related hardware or software, and preventing unauthorized access to the equipment.
    7. Promptly notify MXR in writing of any change in the Customer information specified in this Agreement, the location of the equipment or any change in Customer ownership or management control so that MXR may exercise its rights under the Assignment section. MXR will also notify Customer of any change in MXR ownership or management control so that Customer may exercise its rights under the Assignment section.
    8. Power and Grounding. Customer is responsible for ensuring satisfactory power quality and grounding per OEM specifications for all Equipment under this MXR Service Agreement.
    9. Customer is responsible for securing software license keys from the OEM as necessary to perform certain aspects of the services as outlined in the Agreement. If such keys are unavailable at the time of service and required to correct an issue, MXR cannot be held in breach or liable for its inability to correct the issue. Additionally, any downtime associated to an issue that requires unavailable license keys will not be counted towards any uptime guarantee if included in the Agreement.
    10. 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 with the afore mentioned code will be the sole responsibility of the Customer.
    11. Customer is responsible for being HIPAA compliant regarding the storage, transfer, retention, and/or deletion of any PHI or related information on the Equipment.
    12. 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.
    13. 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.
    14. Customer acknowledges and agrees that while under contract with MXR, they will not permit another service provider access to perform any service on the Equipment covered in this Agreement unless expressly authorized by MXR. Should MXR become aware that an unauthorized service has occurred, MXR will, at its discretion, send a field service engineer onsite to do an evaluation of the Equipment for any issues that may have arisen from the unauthorized service. Customer agrees to pay for costs related to the MXR engineers visit, as well as the cost to address any issues that were identified at the time of the evaluation. Customer acknowledges that it is in breach of this Agreement if they hire or permit another service provider to perform any service work on the Equipment during the term of this Agreement.
20. Taxes: 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.
21. Excusable Delays: Either party is excused from performing under this Agreement when the delay or failure to perform is caused by events or contingencies beyond a party’s reasonable control. Except for the Customer’s obligation to make payments to MXR, in the event that a delay occurs, the time for performance shall be extended as reasonably necessary to enable performance.
22. Exclusions: Unless otherwise specifically stated in the Equipment Coverage Details, MXR will not provide the following services or they will be quoted on a billable basis to Customer:
    1. The repair, replacement or disposal of any accessories, table and positioning pads, straps or consumable items including batteries for UPS systems.
    2. The repair, replacement of any MRI coil deemed by the repair facility as “not normal wear and tear” or “abuse”. This can include but not limited to; damage due to mishandling of the coil, cracked housing, patient fluid infiltration or other patient abuse.
    3. Any MRI repair service, including a system ramp/shim or any system parts including cryogens, compressed gases due to a system failure or quench outside of MXR control which includes power failures.
    4. Third party MRI coils are not covered (i.e Invivo wrist array, lower extremity, knee array, breast array, small extremity and 8 channel shoulder.)
    5. The repair, replacement of any ultrasound probe deemed by the repair facility as “not normal wear and tear” or “abuse”. This can include but not limited to: fluid infiltration due to tears in lends from improper cleaning, array or element damage due to mishandling of the probe.
    6. Glycol replacement is considered a consumable, and it is the responsibility of Customer to maintain glycol onsite. Any flush or refills needed due to inability to identify the glycol supply will be considered billable to Customer.
    7. The reimbursement of MXR expenditures for any non-contracted facility or rigging cost.
    8. Applications training or ongoing applications support.
    9. Any service or parts, including cryogens/compressed gasses, surge suppressor, power regulator devices or UPS systems, required as a result of anything external to the covered equipment, including building, van or trailer structural deficiency, power surge or power fluctuations, dust, sand or other particulate debris or environmental (air conditioning, water chiller, etc.) failure.
    10. If the Customer is notified or aware of a deficient part not covered under this Agreement and fails to take corrective action to mitigate damages to the covered equipment, the Customer assumes the responsibility for any parts and services provided by MXR covered under the Agreement.
    11. Service required due to equipment moves made by the Customer.
23. 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.
24. Governing Law; Jurisdiction and 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 (45) days of the Party providing written notice of its desire to mediate.
25. 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.
26. 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.
27. 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.
28. Payment Terms: Invoices are payable in United States currency only to the address listed on MXR’s invoice. Unless otherwise expressly stated in the Service 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 under this or any 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.
    1. 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.
    2. 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.
    3. 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.
    4. If a third party is submitting payment to MXR on behalf of the Customer, MXR must be notified and that third party must be a signatory to this agreement;
29. Parts Purchases Not Covered Under This Agreement: For the purchase of parts and/or accessories that fall outside the scope of this Agreement, please see the Parts Terms and Conditions of Sale at: https://mxrimaging.com/Parts-Terms-and-Conditions
30. 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.
31. Term: The term of this Agreement shall be for the period stated in the Service Proposal attached hereto. The term shall automatically renew for an additional period equal to the length of the original period unless either party gives the other a written notice, within sixty (60) business days of the end of the current term of its election to terminate the Agreement at the end of the then current term. MXR reserves the right to adjust pricing and/or rates under this Agreement to its then-current rates at the time of the renewal term.
32. Product Removal from Coverage: MXR will use commercially reasonable efforts to perform its obligations under this Agreement. In the event MXR determines it can no longer provide effective corrective maintenance or planned maintenance services for the item(s) included in this Agreement, MXR may remove the affected Product from coverage upon thirty (30) days’ prior written notice to the Customer, or upon mutual agreement with the Customer, MXR may elect to do one of the following: 1) to continue the Services and scheduled payment associated with this Agreement on a best effort basis, 2) reduce the level of coverage for the impacted equipment to a PM only level agreement, with the associated market pricing for altered coverage, or 3) remove from coverage the item impacted with no further obligation for the removed item other than Customer’s payment of all current outstanding invoices.
33. 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, 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.
34. 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.
    If the Agreement between Customer and MXR covers more than one piece of Equipment, all pieces of Equipment must be listed on the Equipment Coverage Details page attached to this Agreement. If the Customer provides Notice of Breach relating to MXR’s service performance, that notice shall only cover the specific piece of Equipment at dispute. The Notice of Breach will not cover the remaining pieces of Equipment covered by this Agreement listed on the Equipment Coverage Details page. If MXR cannot cure the breach after being provided the necessary cure period (as outlined above) then the Customer may only terminate the Agreement for that specific piece of Equipment. The Agreement will remain in full force and effect for the remaining pieces of Equipment as listed on the Equipment Coverage Details page.
35. Termination for Cause: This Agreement may be terminated by the Customer with nintey (90) days written notice to MXR should: (a) the equipment covered be de-installed, sold or removed from service; or (b) the facility is shut down and the equipment covered is no longer being used on patients; or (c) the Customer becomes insolvent or the subject of a bankruptcy proceeding.
    In the event this Agreement is terminated prior to expiration for one of the 3 reasons listed above, MXR will recalculate all services (travel, labor, and parts) on a Time and Materials basis using the Travel and Labor rates listed on the Equipment Details page for the Equipment being removed, and Customer agrees to pay the difference between what Customer has paid to date for service on Equipment being removed vs. the calculated amount for what service would have been using the Times and Material rate calculated.
36. Termination Without Cause: In the event this agreement or portions of this agreement are terminated by Customer for a reason not listed in the Termination For Cause section , or if Customer is in breach of this contract as described in the Breach of Contract section, MXR will either;
    1. Invoice Customer for an amount equal to twenty percent (20%) of the remaining contract value for Equipment being removed
    2. Calculate all services (travel, labor, and parts) on a Time and Materials basis for the Equipment being removed and invoice customer the difference between what Customer has paid to date vs. the calculated amount for what service would have been using MXR’s then billable rates at the time of termination
    MXR will invoice Customer for whichever is the larger amount due to the Customer between these two options. Customer will have 30 days to remit payment

F72-03 | Service Terms & Conditions w/CT Tube| Rev. M | Remit to: SALES | Effective: 12-05-2023

Services Terms and Conditions

1. Agreement: The customer identified on the Service Proposal attached hereto (hereinafter referred to as “Customer”) has agreed to purchase, and MXR Imaging (hereinafter referred to as “MXR”) has agreed to provide, certain maintenance, repair, update and/or upgrade services (the “Services”) upon the terms and conditions set forth on the Service Proposal, the attached Equipment Coverage Details, and these Terms and Conditions (collectively, the “Agreement”). MXR and the Customer have caused this Agreement to be executed by their duly authorized officers or representatives, effective as of the later date of authorized signature hereon.
2. Order of Precedence: This Agreement comprises the entire agreement between the parties and supersedes all prior proposals, quotations, agreements, promises, or representations between the parties, whether verbal or written. The terms of this Agreement will prevail notwithstanding any variance with the terms of any present or future purchase or service order or request by the customer for services. In the event of any conflict between terms, the order of precedence shall be (a) the Service Proposal, (b) the Equipment Coverage Details, and (c) these Terms and Conditions. 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.
3. Additions and Deletions or System Upgrades from Service Coverage and Additional Services: Customer shall notify, consult, and receive validation from MXR in writing prior to (i) adding or deleting equipment, or (ii) upgrading existing system hardware or software to provide additional clinical functionality, or (iii) changing parts or other items to this Agreement after the initial inspection for service coverage described below.
   All additions, deletions or hardware/software upgrades outside the scope of this Agreement will be subject to new pricing, and will be quoted prior to being incorporated into this Agreement.
   For services requested by Customer outside of the Agreement, MXR may provide additional and separately-billed services such as: (i) instructions to Customer in the operation of the Equipment; (ii) the addition or removal of accessories, attachments, or other devices from the Equipment; (iii) the movement or relocation of the Equipment; (iv) resolution of problems or services caused by or necessitated by the unauthorized actions of Customer, third parties or external sources, including breach of warranties by the original manufacturer of the Equipment; (v) increase in service time necessitated by Customer’s operator error; (vi) repair due or damage from any cause other than ordinary use; and/or (vii) repair of damage or increase in service time caused by unauthorized alterations including, but not limited to, deviation from circuit or structural design of the equipment as provided by the original manufacturer(s) or MXR.
4. 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.
5. Amendment; Waiver; Survival: 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. The terms of this Agreement which by their nature are intended to survive its expiration (such as confidentiality provisions and Customer’s obligation to pay any amounts owed to MXR) will continue in full force and effect.
6. Assignment; Use of Subcontractors: 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.
7. Billable Service Calls: Service calls requested by Customer outside of this Agreement are billed by MXR at the then current regular and overtime rates for travel and on-site labor plus all applicable reasonable travel expenses. The customer will be provided a quotation for any equipment parts that need to be replaced. The customer authorizes MXR to perform and invoice for the service by scheduling the call. Billable service calls may be canceled by the customer with a minimum of twenty-four (24) hours written notice and the customer will have no liability whatsoever for timely cancellations.
8. Confidentiality: 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.
9. Coverage Terms for Service Support: For services set forth on the Service Proposal, MXR will supply all labor required for preventive and scheduled maintenance and remedial repairs on the Customer’s equipment as described in the Equipment Coverage Details. MXR will perform all maintenance services in accordance with the maintenance programs set forth in the applicable manufacturer’s service manuals. MXR may also replace all unserviceable parts with new or equivalent parts as specified by MXR on the initial inspection report described below; and as provided in this Agreement.
10. Initial Inspection (If Applicable): If equipment is new equipment to be serviced by MXR and not a renewal, within thirty (30) calendar days of the effective start date of this Agreement, MXR (or its authorized subcontractor) shall inspect each item of the Customer’s equipment and review all logs and documentation associated with it to determine its eligibility for service coverage hereunder. If MXR’s inspection reveals that an item of equipment is inoperable or in need of substantive repair, MXR will notify customer within ten (10) business days of the date of inspection and provide a written estimate of the cost of repair at MXR’s then-current list prices/rates for time and materials. Service requests made prior to the completion of the inspection that require part(s) replacement will be treated as a pre-existing condition and the part repair or replacement will be invoiced to the Customer. Equipment identified by MXR as requiring repair service but not authorized for repair or otherwise repairable by Customer will be removed from service support under this Agreement and deleted from the Equipment Coverage Detail until such repair is completed. If Customer does not permit MXR to conduct its inspection within the above thirty (30) calendar day period, or if any items of equipment are in storage, not in use or otherwise not available for inspection during the thirty (30) calendar day inspection period, Customer will be responsible for all repairs necessary to bring that item of equipment into safe operable condition before MXR will provide service coverage for it.
11. Parts and Replacements; Exclusions: 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. Installation of parts not supplied by MXR or its representative without prior written consent of MXR constitutes a material breach of this Agreement.
    Consumable items, accessories, networking hardware and software, printers and other peripherals are not covered under this Agreement. Parts that are deemed cosmetic or accessory in nature may be replaced at cost to the Customer.
12. Customer Provided Parts: If Equipment covered does not include parts replacement as specified in the Coverage Details section(s), or part(s) being replaced is not covered under the scope of the contract, customer may source their own parts with the following stipulations;
    1. 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.
    2. 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 rates listed in the Coverage Details
    3. 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 part(s) if purchased through MXR
13. CT Tube Usage Tracking (If Applicable): Customer agrees to allow MXR to review CT usage information during each preventative maintenance visit. This information will be input into MXR’s service/ticketing system. If any CT equipment covered on this contract is entitled to unlimited tube coverage it will be used to determine if customers usage of the CT is as agreed to in the Coverage Details section of the Equipment.
14. Unlimited CT Tube Coverage (If Applicable): If tube coverage is unlimited as defined in the Coverage Details section(s) of this agreement, MXR will provide unlimited replacement tubes during the term if customer remains below the usage metric identified in the Coverage Details section of the equipment which will be one of the following; (i) Patient Count, (ii) mAs, (iii) Gantry Rotations, or (iv) Scan Seconds. If Customer exceeds the limit by 10% or more, Customer agrees to pay an overage fee indicated in the Coverage Details section, or renegotiate the remainder of the contract. If Customer is unwilling to pay the overage fee, the equipment in question will be changed from unlimited tube coverage to one tube replacement for the full contract term.
15. Increase in Cryogen Costs (If Applicable): Customer acknowledges the volatile nature of the market with regard to helium costs, and MXR’s lack of control of such costs. In the event that helium costs to MXR increase during the term of this Agreement or any renewals, MXR reserves the right, upon thirty (30) days written notice, to pass along the increase helium costs in the form of an increase in the Agreement charges.
16. MRI Chiller (If Applicable): Customer acknowledges and agrees to monitor the chiller to make sure it is fully operational and functioning properly. In the event that the Customer becomes aware of any chiller issue, failure, and/or malfunction the Customer must immediately notify MXR.
    MXR at its discretion may bill the Customer for any service provided, including but not limited to, labor, parts, and/or cryogens associated with the related MRI.
    Even if the chiller is covered as part of the Coverage Entitlements for the Customer’s MRI, Customer acknowledges it is still their sole responsibility and obligation to fully monitor the chiller. If Customer does not immediately notify MXR of any issue, failure, and/or malfunction then MXR may at is sole discretion bill Customer for any services charges necessary to guarantee the chiller and associated MRI is fully operational.
17. MXR Provided External Remote Monitoring Device (If Applicable): If the External Remote Monitoring Device (“ERMD”)is included as part of the Agreement, Customer agrees to and understands the following:
    1. MXR provides the ERMD free of charge to the Customer, however the ERMD remains the exclusive property of MXR at all times.
    2. Customer will be required to provide power and network connectivity including, but not limited to, an IP address and sufficient internet access. Should MXR require any additional work to ensure the ERMD’s complete functionality it will notify the Customer upon installation. The Customer will then be solely responsible for providing and ensuring any additional work be completed to ensure the ERMD’s complete functionality.
    3. Customer must allow the necessary network traffic through their firewall and VPN, if applicable, so the ERMD can communicate with MXR’s external service that receives and process information. If Customer cannot provide to the ERMD the required connectivity to communicate with MXR, MXR will provide a wireless hotspot which the customer will be billed $100 dollars per month on the billing invoice.
    4. Customer will notify MXR if they make changes that may affect the ERMD’s functionality and/or ability to communicate with MXR.
    5. The ERMD does not absolve or relieve the Customer of its sole responsibility to promptly report any known or suspected issues concerning the equipment and/or ERMD back to MXR.
    6. Pursuant to Section 26, MXR will not be liable for any damages and/or loss of revenue due to any problems identified or not identified by the ERMD
    7. Customer, or any other third-party who is permitted access to the MXR 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 Customer discovers that a third-party hindered or interfered with the ERMD services, or acted in such a manner as described in this Section (g) the Customer must immediately report such action to MXR.
    8. The ERMD does not have the ability to access any confidential patient information on the medical imaging equipment itself.
    9. The ERMD is the property of MXR, and will be returned by Customer upon termination of this Agreement. Customer will be invoiced for any replacement cost of the ERMD if it is not returned within thirty (30) days of termination of Agreement.
18. Uptime Guarantee for Services Only: If an Uptime Guarantee is referenced in the Equipment Coverage Details, MXR will guarantee the Equipment can be used for scanning patients for a defined percentage of the total coverage hours in a given year. For the purposes of calculating the uptime there will be two measurements, Base Time and Downtime. Base Time is defined as the total covered hours of the contract for a one (1) year term, so for example if the contracted hours of coverage are 8am to 5pm Monday through Friday there would be a total of 2,340 Base Time Hours (9 hours a day x 5 days a week x 52 weeks a year). Downtime is defined as the total number of hours the Equipment is unable to scan patients during covered hours excluded exceptions as referenced in this clause. For example if the contracted hours of coverage are 8am to 5pm Monday through Friday, MXR receives a call at 6:00am on Monday, and the system is available for scanning at 10:00am Monday there would be 2 hours of downtime as the two hours between 6:00am and 8:00am are not time covered under the contract. The formula for determining the uptime percentage will be (Base Time – Downtime)/Base Time.
    
    The following are reasons why downtime events would not be included in this calculation
    1. Scheduled Preventative Maintenance
    2. If MXR is prepared to perform maintenance services to make the Equipment operational but such service is refused by the Customer or is deferred by the Customer until a later time or date
    3. If the Equipment is not otherwise made available to MXRs’ service engineers
    4. If the Equipment is down is due to, associated with, or caused by misuse, negligence, or operator error
    5. Inadequate environmental conditions (not conforming with the environmental specifications outlined by the OEM), including temperature and humidity, line power exceeding OEM's requirements of voltage, frequency, impulses or transients
    6. Acts of God or other force majeure events
    
    If the equipment uptime level is found to be less than the guaranteed percentage over an annual period, as computed in accordance with the above guidelines, MXR will extend the term of this agreement by one week for each 1% point less than the contracted uptime (e.g., if contracted uptime is 96% and actual uptime is 93% MXR would extend the contract by 3 weeks)
19. Customer Responsibilities: In order for MXR to perform its duties and obligations under this Agreement (including warranty obligations), Customer agrees to:
    1. 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.
    2. 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.
    3. 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 under this Agreement. Customer shall notify MXR of any mobile equipment location(s) upon execution of this Agreement. Mobile equipment traveling more than fifty (50) miles from the original Customer location is excluded from the designated on-site response time and subject to additional travel charges.
    4. Promptly place service calls in accordance with any reasonable MXR protocols provided to Customer.
    5. Customer is responsible for reporting helium levels weekly back to MXR either by emailing CISHeliumReadings@mxrimaging.com or calling the main service number at 866-310-0071, Option 1.
    6. Establish and maintain security, virus protection, backup and disaster recovery plans for any data, images, software or equipment. This responsibility includes maintaining secure network and network security components, firewalls and security-related hardware or software, and preventing unauthorized access to the equipment.
    7. Promptly notify MXR in writing of any change in the Customer information specified in this Agreement, the location of the equipment or any change in Customer ownership or management control so that MXR may exercise its rights under the Assignment section. MXR will also notify Customer of any change in MXR ownership or management control so that Customer may exercise its rights under the Assignment section.
    8. Power and Grounding. Customer is responsible for ensuring satisfactory power quality and grounding per OEM specifications for all Equipment under this MXR Service Agreement.
    9. Customer is responsible for securing software license keys from the OEM as necessary to perform certain aspects of the services as outlined in the Agreement. If such keys are unavailable at the time of service and required to correct an issue, MXR cannot be held in breach or liable for its inability to correct the issue. Additionally, any downtime associated to an issue that requires unavailable license keys will not be counted towards any uptime guarantee if included in the Agreement.
    10. 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 with the afore mentioned code will be the sole responsibility of the Customer.
    11. Customer is responsible for being HIPAA compliant regarding the storage, transfer, retention, and/or deletion of any PHI or related information on the Equipment.
    12. 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.
    13. 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.
    14. Customer acknowledges and agrees that while under contract with MXR, they will not permit another service provider access to perform any service on the Equipment covered in this Agreement unless expressly authorized by MXR. Should MXR become aware that an unauthorized service has occurred, MXR will, at its discretion, send a field service engineer onsite to do an evaluation of the Equipment for any issues that may have arisen from the unauthorized service. Customer agrees to pay for costs related to the MXR engineers visit, as well as the cost to address any issues that were identified at the time of the evaluation. Customer acknowledges that it is in breach of this Agreement if they hire or permit another service provider to perform any service work on the Equipment during the term of this Agreement.
20. Taxes: 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.
21. Excusable Delays: Either party is excused from performing under this Agreement when the delay or failure to perform is caused by events or contingencies beyond a party’s reasonable control. Except for the Customer’s obligation to make payments to MXR, in the event that a delay occurs, the time for performance shall be extended as reasonably necessary to enable performance.
22. Exclusions: Unless otherwise specifically stated in the Equipment Coverage Details, MXR will not provide the following services or they will be quoted on a billable basis to Customer:
    1. The repair, replacement or disposal of any accessories, table and positioning pads, straps or consumable items including batteries for UPS systems.
    2. The repair, replacement of any MRI coil deemed by the repair facility as “not normal wear and tear” or “abuse”. This can include but not limited to; damage due to mishandling of the coil, cracked housing, patient fluid infiltration or other patient abuse.
    3. Any MRI repair service, including a system ramp/shim or any system parts including cryogens, compressed gases due to a system failure or quench outside of MXR control which includes power failures.
    4. Third party MRI coils are not covered (i.e Invivo wrist array, lower extremity, knee array, breast array, small extremity and 8 channel shoulder.)
    5. The repair, replacement of any ultrasound probe deemed by the repair facility as “not normal wear and tear” or “abuse”. This can include but not limited to: fluid infiltration due to tears in lends from improper cleaning, array or element damage due to mishandling of the probe.
    6. Glycol replacement is considered a consumable, and it is the responsibility of Customer to maintain glycol onsite. Any flush or refills needed due to inability to identify the glycol supply will be considered billable to Customer.
    7. The reimbursement of MXR expenditures for any non-contracted facility or rigging cost.
    8. Applications training or ongoing applications support.
    9. Any service or parts, including cryogens/compressed gasses, surge suppressor, power regulator devices or UPS systems, required as a result of anything external to the covered equipment, including building, van or trailer structural deficiency, power surge or power fluctuations, dust, sand or other particulate debris or environmental (air conditioning, water chiller, etc.) failure.
    10. If the Customer is notified or aware of a deficient part not covered under this Agreement and fails to take corrective action to mitigate damages to the covered equipment, the Customer assumes the responsibility for any parts and services provided by MXR covered under the Agreement.
    11. Service required due to equipment moves made by the Customer.
23. 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.
24. Governing Law; Jurisdiction and 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 (45) days of the Party providing written notice of its desire to mediate.
25. 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.
26. 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.
27. 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.
28. Payment Terms: Invoices are payable in United States currency only to the address listed on MXR’s invoice. Unless otherwise expressly stated in the Service 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 under this or any 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.
    1. 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.
    2. 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.
    3. 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.
    4. If a third party is submitting payment to MXR on behalf of the Customer, MXR must be notified and that third party must be a signatory to this agreement;
29. Purchased Equipment and Parts: The following provisions shall apply only to the purchase of equipment or parts from MXR that are outside of the scope of a service agreement:
    1. Delivery: MXR reserves the right to make delivery in installments under a mutually agreed schedule. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delivery dates are approximate
    2. 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.
    3. 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 an 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.
    4. 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.
    5. 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.
    6. 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.
    7. 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.
30. 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.
31. Term: The term of this Agreement shall be for the period stated in the Service Proposal attached hereto. The term shall automatically renew for an additional period equal to the length of the original period unless either party gives the other a written notice, within sixty (60) business days of the end of the current term of its election to terminate the Agreement at the end of the then current term. MXR reserves the right to adjust pricing and/or rates under this Agreement to its then-current rates at the time of the renewal term.
32. Product Removal from Coverage: MXR will use commercially reasonable efforts to perform its obligations under this Agreement. In the event MXR determines it can no longer provide effective corrective maintenance or planned maintenance services for the item(s) included in this Agreement, MXR may remove the affected Product from coverage upon thirty (30) days’ prior written notice to the Customer, or upon mutual agreement with the Customer, MXR may elect to do one of the following: 1) to continue the Services and scheduled payment associated with this Agreement on a best effort basis, 2) reduce the level of coverage for the impacted equipment to a PM only level agreement, with the associated market pricing for altered coverage, or 3) remove from coverage the item impacted with no further obligation for the removed item other than Customer’s payment of all current outstanding invoices.
33. 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, 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.
34. 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.
    If the Agreement between Customer and MXR covers more than one piece of Equipment, all pieces of Equipment must be listed on the Equipment Coverage Details page attached to this Agreement. If the Customer provides Notice of Breach relating to MXR’s service performance, that notice shall only cover the specific piece of Equipment at dispute. The Notice of Breach will not cover the remaining pieces of Equipment covered by this Agreement listed on the Equipment Coverage Details page. If MXR cannot cure the breach after being provided the necessary cure period (as outlined above) then the Customer may only terminate the Agreement for that specific piece of Equipment. The Agreement will remain in full force and effect for the remaining pieces of Equipment as listed on the Equipment Coverage Details page.
35. Termination for Cause: This Agreement may be terminated by the Customer with nintey (90) days written notice to MXR should: (a) the equipment covered be de-installed, sold or removed from service; or (b) the facility is shut down and the equipment covered is no longer being used on patients; or (c) the Customer becomes insolvent or the subject of a bankruptcy proceeding.
    In the event this Agreement is terminated prior to expiration for one of the 3 reasons listed above, MXR will recalculate all services (travel, labor, and parts) on a Time and Materials basis using the Travel and Labor rates listed on the Equipment Details page for the Equipment being removed, and Customer agrees to pay the difference between what Customer has paid to date for service on Equipment being removed vs. the calculated amount for what service would have been using the Times and Material rate calculated.
36. Termination Without Cause: In the event this agreement or portions of this agreement are terminated by Customer for a reason not listed in the Termination For Cause section , or if Customer is in breach of this contract as described in the Breach of Contract section, MXR will either;
    1. Invoice Customer for an amount equal to twenty percent (20%) of the remaining contract value for Equipment being removed
    2. Calculate all services (travel, labor, and parts) on a Time and Materials basis for the Equipment being removed and invoice customer the difference between what Customer has paid to date vs. the calculated amount for what service would have been using MXR’s then billable rates at the time of termination
    MXR will invoice Customer for whichever is the larger amount due to the Customer between these two options. Customer will have 30 days to remit payment

F72-03 | Service Terms & Conditions w/CT Tube| Rev. L | Remit to: SALES | Effective: 10-31-2023

1. Agreement: The customer identified on the Service Proposal attached hereto (hereinafter referred to as “Customer”) has agreed to purchase, and MXR Imaging (hereinafter referred to as “MXR”) has agreed to provide, certain maintenance, repair, update and/or upgrade services (the “Services”) upon the terms and conditions set forth on the Service Proposal, the attached Equipment Coverage Details, and these Terms and Conditions (collectively, the “Agreement”). MXR and the Customer have caused this Agreement to be executed by their duly authorized officers or representatives, effective as of the later date of authorized signature hereon.
2. Order of Precedence: This Agreement comprises the entire agreement between the parties and supersedes all prior proposals, quotations, agreements, promises, or representations between the parties, whether verbal or written. The terms of this Agreement will prevail notwithstanding any variance with the terms of any present or future purchase or service order or request by the customer for services. In the event of any conflict between terms, the order of precedence shall be (a) the Service Proposal, (b) the Equipment Coverage Details, and (c) these Terms and Conditions. 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.
3. Additions and Deletions or System Upgrades from Service Coverage and Additional Services: Customer shall notify, consult, and receive validation from MXR in writing prior to (i) adding or deleting equipment, or (ii) upgrading existing system hardware or software to provide additional clinical functionality, or (iii) changing parts or other items to this Agreement after the initial inspection for service coverage described below.
   All additions, deletions or hardware/software upgrades outside the scope of this Agreement will be subject to new pricing, and will be quoted prior to being incorporated into this Agreement.
   For services requested by Customer outside of the Agreement, MXR may provide additional and separately-billed services such as: (i) instructions to Customer in the operation of the Equipment; (ii) the addition or removal of accessories, attachments, or other devices from the Equipment; (iii) the movement or relocation of the Equipment; (iv) resolution of problems or services caused by or necessitated by the unauthorized actions of Customer, third parties or external sources, including breach of warranties by the original manufacturer of the Equipment; (v) increase in service time necessitated by Customer’s operator error; (vi) repair due or damage from any cause other than ordinary use; and/or (vii) repair of damage or increase in service time caused by unauthorized alterations including, but not limited to, deviation from circuit or structural design of the equipment as provided by the original manufacturer(s) or MXR.
4. 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.
5. Amendment; Waiver; Survival: 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. The terms of this Agreement which by their nature are intended to survive its expiration (such as confidentiality provisions and Customer’s obligation to pay any amounts owed to MXR) will continue in full force and effect.
6. Assignment; Use of Subcontractors: 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.
7. Billable Service Calls: Service calls requested by Customer outside of this Agreement are billed by MXR at the then current regular and overtime rates for travel and on-site labor plus all applicable reasonable travel expenses. The customer will be provided a quotation for any equipment parts that need to be replaced. The customer authorizes MXR to perform and invoice for the service by scheduling the call. Billable service calls may be canceled by the customer with a minimum of twenty-four (24) hours written notice and the customer will have no liability whatsoever for timely cancellations.
8. Confidentiality: 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.
9. Coverage Terms for Service Support: For services set forth on the Service Proposal, MXR will supply all labor required for preventive and scheduled maintenance and remedial repairs on the Customer’s equipment as described in the Equipment Coverage Details. MXR will perform all maintenance services in accordance with the maintenance programs set forth in the applicable manufacturer’s service manuals. MXR may also replace all unserviceable parts with new or equivalent parts as specified by MXR on the initial inspection report described below; and as provided in this Agreement.
10. Initial Inspection (If Applicable): If equipment is new equipment to be serviced by MXR and not a renewal, within thirty (30) calendar days of the effective start date of this Agreement, MXR (or its authorized subcontractor) shall inspect each item of the Customer’s equipment and review all logs and documentation associated with it to determine its eligibility for service coverage hereunder. If MXR’s inspection reveals that an item of equipment is inoperable or in need of substantive repair, MXR will notify customer within ten (10) business days of the date of inspection and provide a written estimate of the cost of repair at MXR’s then-current list prices/rates for time and materials. Service requests made prior to the completion of the inspection that require part(s) replacement will be treated as a pre-existing condition and the part repair or replacement will be invoiced to the Customer. Equipment identified by MXR as requiring repair service but not authorized for repair or otherwise repairable by Customer will be removed from service support under this Agreement and deleted from the Equipment Coverage Detail until such repair is completed. If Customer does not permit MXR to conduct its inspection within the above thirty (30) calendar day period, or if any items of equipment are in storage, not in use or otherwise not available for inspection during the thirty (30) calendar day inspection period, Customer will be responsible for all repairs necessary to bring that item of equipment into safe operable condition before MXR will provide service coverage for it.
11. Parts and Replacements; Exclusions: 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. Installation of parts not supplied by MXR or its representative without prior written consent of MXR constitutes a material breach of this Agreement.
    Consumable items, accessories, networking hardware and software, printers and other peripherals are not covered under this Agreement. Parts that are deemed cosmetic or accessory in nature may be replaced at cost to the Customer.
12. Customer Provided Parts: If Equipment covered does not include parts replacement as specified in the Coverage Details section(s), or part(s) being replaced is not covered under the scope of the contract, customer may source their own parts with the following stipulations;
    1. 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.
    2. 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 rates listed in the Coverage Details
    3. 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 part(s) if purchased through MXR
13. CT Tube Usage Tracking (If Applicable): Customer agrees to allow MXR to review CT usage information during each preventative maintenance visit. This information will be input into MXR’s service/ticketing system. If any CT equipment covered on this contract is entitled to unlimited tube coverage it will be used to determine if customers usage of the CT is as agreed to in the Coverage Details section of the Equipment.
14. Unlimited CT Tube Coverage (If Applicable): If tube coverage is unlimited as defined in the Coverage Details section(s) of this agreement, MXR will provide unlimited replacement tubes during the term if customer remains below the usage metric identified in the Coverage Details section of the equipment which will be one of the following; (i) Patient Count, (ii) mAs, (iii) Gantry Rotations, or (iv) Scan Seconds. If Customer exceeds the limit by 10% or more, Customer agrees to pay an overage fee indicated in the Coverage Details section, or renegotiate the remainder of the contract. If Customer is unwilling to pay the overage fee, the equipment in question will be changed from unlimited tube coverage to one tube replacement for the full contract term.
15. Increase in Cryogen Costs (If Applicable): Customer acknowledges the volatile nature of the market with regard to helium costs, and MXR’s lack of control of such costs. In the event that helium costs to MXR increase during the term of this Agreement or any renewals, MXR reserves the right, upon thirty (30) days written notice, to pass along the increase helium costs in the form of an increase in the Agreement charges.
16. MRI Chiller: Customer acknowledges and agrees to monitor the chiller to make sure it is fully operational and functioning properly. In the event that the Customer becomes aware of any chiller issue, failure, and/or malfunction the Customer must immediately notify MXR.
    MXR at its discretion may bill the Customer for any service provided, including but not limited to, labor, parts, and/or cryogens associated with the related MRI.
    Even if the chiller is covered as part of the Coverage Entitlements for the Customer’s MRI, Customer acknowledges it is still their sole responsibility and obligation to fully monitor the chiller. If Customer does not immediately notify MXR of any issue, failure, and/or malfunction then MXR may at is sole discretion bill Customer for any services charges necessary to guarantee the chiller and associated MRI is fully operational.
17. MXR Provided External Remote Monitoring Device (If Applicable): If the External Remote Monitoring Device (“ERMD”)is included as part of the Agreement, Customer agrees to and understands the following:
    1. MXR provides the ERMD free of charge to the Customer, however the ERMD remains the exclusive property of MXR at all times.
    2. Customer will be required to provide power and network connectivity including, but not limited to, an IP address and sufficient internet access. Should MXR require any additional work to ensure the ERMD’s complete functionality it will notify the Customer upon installation. The Customer will then be solely responsible for providing and ensuring any additional work be completed to ensure the ERMD’s complete functionality.
    3. Customer must allow the necessary network traffic through their firewall and VPN, if applicable, so the ERMD can communicate with MXR’s external service that receives and process information. If Customer cannot provide to the ERMD the required connectivity to communicate with MXR, MXR will provide a wireless hotspot which the customer will be billed $100 dollars per month on the billing invoice.
    4. Customer will notify MXR if they make changes that may affect the ERMD’s functionality and/or ability to communicate with MXR.
    5. The ERMD does not absolve or relieve the Customer of its sole responsibility to promptly report any known or suspected issues concerning the equipment and/or ERMD back to MXR.
    6. Pursuant to Section 26, MXR will not be liable for any damages and/or loss of revenue due to any problems identified or not identified by the ERMD
    7. Customer, or any other third-party who is permitted access to the MXR 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 Customer discovers that a third-party hindered or interfered with the ERMD services, or acted in such a manner as described in this Section (g) the Customer must immediately report such action to MXR.
    8. The ERMD does not have the ability to access any confidential patient information on the medical imaging equipment itself.
    9. The ERMD is the property of MXR, and will be returned by Customer upon termination of this Agreement. Customer will be invoiced for any replacement cost of the ERMD if it is not returned within thirty (30) days of termination of Agreement.
18. Uptime Guarantee for Services Only: If an Uptime Guarantee is referenced in the Equipment Coverage Details, MXR will guarantee the Equipment can be used for scanning patients for a defined percentage of the total coverage hours in a given year. For the purposes of calculating the uptime there will be two measurements, Base Time and Downtime. Base Time is defined as the total covered hours of the contract for a one (1) year term, so for example if the contracted hours of coverage are 8am to 5pm Monday through Friday there would be a total of 2,340 Base Time Hours (9 hours a day x 5 days a week x 52 weeks a year). Downtime is defined as the total number of hours the Equipment is unable to scan patients during covered hours excluded exceptions as referenced in this clause. For example if the contracted hours of coverage are 8am to 5pm Monday through Friday, MXR receives a call at 6:00am on Monday, and the system is available for scanning at 10:00am Monday there would be 2 hours of downtime as the two hours between 6:00am and 8:00am are not time covered under the contract. The formula for determining the uptime percentage will be (Base Time – Downtime)/Base Time.
    
    The following are reasons why downtime events would not be included in this calculation
    1. Scheduled Preventative Maintenance
    2. If MXR is prepared to perform maintenance services to make the Equipment operational but such service is refused by the Customer or is deferred by the Customer until a later time or date
    3. If the Equipment is not otherwise made available to MXRs’ service engineers
    4. If the Equipment is down is due to, associated with, or caused by misuse, negligence, or operator error
    5. Inadequate environmental conditions (not conforming with the environmental specifications outlined by the OEM), including temperature and humidity, line power exceeding OEM's requirements of voltage, frequency, impulses or transients
    6. Acts of God or other force majeure events
    
    If the equipment uptime level is found to be less than the guaranteed percentage over an annual period, as computed in accordance with the above guidelines, MXR will extend the term of this agreement by one week for each 1% point less than the contracted uptime (e.g., if contracted uptime is 96% and actual uptime is 93% MXR would extend the contract by 3 weeks)
19. Customer Responsibilities: In order for MXR to perform its duties and obligations under this Agreement (including warranty obligations), Customer agrees to:
    1. 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.
    2. 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.
    3. 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 under this Agreement. Customer shall notify MXR of any mobile equipment location(s) upon execution of this Agreement. Mobile equipment traveling more than fifty (50) miles from the original Customer location is excluded from the designated on-site response time and subject to additional travel charges.
    4. Promptly place service calls in accordance with any reasonable MXR protocols provided to Customer.
    5. Customer is responsible for reporting helium levels weekly back to MXR either by emailing CISHeliumReadings@mxrimaging.com or calling the main service number at 866-310-0071, Option 1.
    6. Establish and maintain security, virus protection, backup and disaster recovery plans for any data, images, software or equipment. This responsibility includes maintaining secure network and network security components, firewalls and security-related hardware or software, and preventing unauthorized access to the equipment.
    7. Promptly notify MXR in writing of any change in the Customer information specified in this Agreement, the location of the equipment or any change in Customer ownership or management control so that MXR may exercise its rights under the Assignment section. MXR will also notify Customer of any change in MXR ownership or management control so that Customer may exercise its rights under the Assignment section.
    8. Power and Grounding. Customer is responsible for ensuring satisfactory power quality and grounding per OEM specifications for all Equipment under this MXR Service Agreement.
    9. Customer is responsible for securing software license keys from the OEM as necessary to perform certain aspects of the services as outlined in the Agreement. If such keys are unavailable at the time of service and required to correct an issue, MXR cannot be held in breach or liable for its inability to correct the issue. Additionally, any downtime associated to an issue that requires unavailable license keys will not be counted towards any uptime guarantee if included in the Agreement.
    10. 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 with the afore mentioned code will be the sole responsibility of the Customer.
    11. Customer is responsible for being HIPAA compliant regarding the storage, transfer, retention, and/or deletion of any PHI or related information on the Equipment.
    12. 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.
    13. 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.
    14. Customer acknowledges and agrees that while under contract with MXR, they will not permit another service provider access to perform any service on the Equipment covered in this Agreement unless expressly authorized by MXR. Should MXR become aware that an unauthorized service has occurred, MXR will, at its discretion, send a field service engineer onsite to do an evaluation of the Equipment for any issues that may have arisen from the unauthorized service. Customer agrees to pay for costs related to the MXR engineers visit, as well as the cost to address any issues that were identified at the time of the evaluation. Customer acknowledges that it is in breach of this Agreement if they hire or permit another service provider to perform any service work on the Equipment during the term of this Agreement.
20. Taxes: 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.
21. Excusable Delays: Either party is excused from performing under this Agreement when the delay or failure to perform is caused by events or contingencies beyond a party’s reasonable control. Except for the Customer’s obligation to make payments to MXR, in the event that a delay occurs, the time for performance shall be extended as reasonably necessary to enable performance.
22. Exclusions: Unless otherwise specifically stated in the Equipment Coverage Details, MXR will not provide the following services or they will be quoted on a billable basis to Customer:
    1. The repair, replacement or disposal of any accessories, table and positioning pads, straps or consumable items including batteries for UPS systems.
    2. The repair, replacement of any MRI coil deemed by the repair facility as “not normal wear and tear” or “abuse”. This can include but not limited to; damage due to mishandling of the coil, cracked housing, patient fluid infiltration or other patient abuse.
    3. Any MRI repair service, including a system ramp/shim or any system parts including cryogens, compressed gases due to a system failure or quench outside of MXR control which includes power failures.
    4. Third party MRI coils are not covered (i.e Invivo wrist array, lower extremity, knee array, breast array, small extremity and 8 channel shoulder.)
    5. The repair, replacement of any ultrasound probe deemed by the repair facility as “not normal wear and tear” or “abuse”. This can include but not limited to: fluid infiltration due to tears in lends from improper cleaning, array or element damage due to mishandling of the probe.
    6. Glycol replacement is considered a consumable, and it is the responsibility of Customer to maintain glycol onsite. Any flush or refills needed due to inability to identify the glycol supply will be considered billable to Customer.
    7. The reimbursement of MXR expenditures for any non-contracted facility or rigging cost.
    8. Applications training or ongoing applications support.
    9. Any service or parts, including cryogens/compressed gasses, surge suppressor, power regulator devices or UPS systems, required as a result of anything external to the covered equipment, including building, van or trailer structural deficiency, power surge or power fluctuations, dust, sand or other particulate debris or environmental (air conditioning, water chiller, etc.) failure.
    10. If the Customer is notified or aware of a deficient part not covered under this Agreement and fails to take corrective action to mitigate damages to the covered equipment, the Customer assumes the responsibility for any parts and services provided by MXR covered under the Agreement.
    11. Service required due to equipment moves made by the Customer.
23. 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.
24. Governing Law; Jurisdiction and 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.
25. 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.
26. 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.
27. 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.
28. Payment Terms: Invoices are payable in United States currency only to the address listed on MXR’s invoice. Unless otherwise expressly stated in the Service 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 under this or any 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.
    1. 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.
    2. 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.
    3. 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.
    4. If a third party is submitting payment to MXR on behalf of the Customer, MXR must be notified and that third party must be a signatory to this agreement;
29. Purchased Equipment and Parts: The following provisions shall apply only to the purchase of equipment or parts from MXR that are outside of the scope of a service agreement:
    1. Delivery: MXR reserves the right to make delivery in installments under a mutually agreed schedule. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delivery dates are approximate
    2. 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.
    3. 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 an 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.
    4. 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.
    5. 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.
    6. 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.
    7. 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.
30. 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.
31. Term: The term of this Agreement shall be for the period stated in the Service Proposal attached hereto. The term shall automatically renew for an additional period equal to the length of the original period unless either party gives the other a written notice, within sixty (60) business days of the end of the current term of its election to terminate the Agreement at the end of the then current term. MXR reserves the right to adjust pricing and/or rates under this Agreement to its then-current rates at the time of the renewal term.
32. Product Removal from Coverage: MXR will use commercially reasonable efforts to perform its obligations under this Agreement. In the event MXR determines it can no longer provide effective corrective maintenance or planned maintenance services for the item(s) included in this Agreement, MXR may remove the affected Product from coverage upon thirty (30) days’ prior written notice to the Customer, or upon mutual agreement with the Customer, MXR may elect to do one of the following: 1) to continue the Services and scheduled payment associated with this Agreement on a best effort basis, 2) reduce the level of coverage for the impacted equipment to a PM only level agreement, with the associated market pricing for altered coverage, or 3) remove from coverage the item impacted with no further obligation for the removed item other than Customer’s payment of all current outstanding invoices.
33. 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, 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.
34. 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.
    If the Agreement between Customer and MXR covers more than one piece of Equipment, all pieces of Equipment must be listed on the Equipment Coverage Details page attached to this Agreement. If the Customer provides Notice of Breach relating to MXR’s service performance, that notice shall only cover the specific piece of Equipment at dispute. The Notice of Breach will not cover the remaining pieces of Equipment covered by this Agreement listed on the Equipment Coverage Details page. If MXR cannot cure the breach after being provided the necessary cure period (as outlined above) then the Customer may only terminate the Agreement for that specific piece of Equipment. The Agreement will remain in full force and effect for the remaining pieces of Equipment as listed on the Equipment Coverage Details page.
35. Termination for Cause: This Agreement may be terminated by the Customer with nintey (90) days written notice to MXR should: (a) the equipment covered be de-installed, sold or removed from service; or (b) the facility is shut down and the equipment covered is no longer being used on patients; or (c) the Customer becomes insolvent or the subject of a bankruptcy proceeding.
    In the event this Agreement is terminated prior to expiration for one of the 3 reasons listed above, MXR will recalculate all services (travel, labor, and parts) on a Time and Materials basis using the Travel and Labor rates listed on the Equipment Details page for the Equipment being removed, and Customer agrees to pay the difference between what Customer has paid to date for service on Equipment being removed vs. the calculated amount for what service would have been using the Times and Material rate calculated.
36. Termination Without Cause: In the event this agreement or portions of this agreement are terminated by Customer for a reason not listed in the Termination For Cause section , or if Customer is in breach of this contract as described in the Breach of Contract section, MXR will either;
    1. Invoice Customer for an amount equal to twenty percent (20%) of the remaining contract value for Equipment being removed
    2. Calculate all services (travel, labor, and parts) on a Time and Materials basis for the Equipment being removed and invoice customer the difference between what Customer has paid to date vs. the calculated amount for what service would have been using MXR’s then billable rates at the time of termination
    MXR will invoice Customer for whichever is the larger amount due to the Customer between these two options. Customer will have 30 days to remit payment

1. Agreement: The customer identified on the Service Proposal attached hereto (hereinafter referred to as “Customer”) has agreed to purchase, and MXR Imaging (hereinafter referred to as “MXR”) has agreed to provide, certain maintenance, repair, update and/or upgrade services (the “Services”) upon the terms and conditions set forth on the Service Proposal, the attached Equipment Coverage Details, and these Terms and Conditions (collectively, the “Agreement”). MXR and the Customer have caused this Agreement to be executed by their duly authorized officers or representatives, effective as of the later date of authorized signature hereon.
2. Order of Precedence: This Agreement comprises the entire agreement between the parties and supersedes all prior proposals, quotations, agreements, promises, or representations between the parties, whether verbal or written. The terms of this Agreement will prevail notwithstanding any variance with the terms of any present or future purchase or service order or request by the customer for services. In the event of any conflict between terms, the order of precedence shall be (a) the Service Proposal, (b) the Equipment Coverage Details, and (c) these Terms and Conditions. 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.
3. Additions and Deletions or System Upgrades from Service Coverage and Additional Services: Customer shall notify, consult, and receive validation from MXR in writing prior to (i) adding or deleting equipment, or (ii) upgrading existing system hardware or software to provide additional clinical functionality, or (iii) changing parts or other items to this Agreement after the initial inspection for service coverage described below.
   All additions, deletions or hardware/software upgrades outside the scope of this Agreement will be subject to new pricing, and will be quoted prior to being incorporated into this Agreement.
   For services requested by Customer outside of the Agreement, MXR may provide additional and separately-billed services such as: (i) instructions to Customer in the operation of the Equipment; (ii) the addition or removal of accessories, attachments, or other devices from the Equipment; (iii) the movement or relocation of the Equipment; (iv) resolution of problems or services caused by or necessitated by the unauthorized actions of Customer, third parties or external sources, including breach of warranties by the original manufacturer of the Equipment; (v) increase in service time necessitated by Customer’s operator error; (vi) repair due or damage from any cause other than ordinary use; and/or (vii) repair of damage or increase in service time caused by unauthorized alterations including, but not limited to, deviation from circuit or structural design of the equipment as provided by the original manufacturer(s) or MXR.
4. 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.
5. Amendment; Waiver; Survival: 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. The terms of this Agreement which by their nature are intended to survive its expiration (such as confidentiality provisions and Customer’s obligation to pay any amounts owed to MXR) will continue in full force and effect.
6. Assignment; Use of Subcontractors: 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.
7. Billable Service Calls: Service calls requested by Customer outside of this Agreement are billed by MXR at the then current regular and overtime rates for travel and on-site labor plus all applicable reasonable travel expenses. The customer will be provided a quotation for any equipment parts that need to be replaced. The customer authorizes MXR to perform and invoice for the service by scheduling the call. Billable service calls may be canceled by the customer with a minimum of twenty-four (24) hours written notice and the customer will have no liability whatsoever for timely cancellations.
8. Confidentiality: 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.
9. Coverage Terms for Service Support: For services set forth on the Service Proposal, MXR will supply all labor required for preventive and scheduled maintenance and remedial repairs on the Customer’s equipment as described in the Equipment Coverage Details. MXR will perform all maintenance services in accordance with the maintenance programs set forth in the applicable manufacturer’s service manuals. MXR may also replace all unserviceable parts with new or equivalent parts as specified by MXR on the initial inspection report described below; and as provided in this Agreement.
10. Initial Inspection (If Applicable): If equipment is new equipment to be serviced by MXR and not a renewal, within thirty (30) calendar days of the effective start date of this Agreement, MXR (or its authorized subcontractor) shall inspect each item of the Customer’s equipment and review all logs and documentation associated with it to determine its eligibility for service coverage hereunder. If MXR’s inspection reveals that an item of equipment is inoperable or in need of substantive repair, MXR will notify customer within ten (10) business days of the date of inspection and provide a written estimate of the cost of repair at MXR’s then-current list prices/rates for time and materials. Service requests made prior to the completion of the inspection that require part(s) replacement will be treated as a pre-existing condition and the part repair or replacement will be invoiced to the Customer. Equipment identified by MXR as requiring repair service but not authorized for repair or otherwise repairable by Customer will be removed from service support under this Agreement and deleted from the Equipment Coverage Detail until such repair is completed. If Customer does not permit MXR to conduct its inspection within the above thirty (30) calendar day period, or if any items of equipment are in storage, not in use or otherwise not available for inspection during the thirty (30) calendar day inspection period, Customer will be responsible for all repairs necessary to bring that item of equipment into safe operable condition before MXR will provide service coverage for it.
11. Parts and Replacements; Exclusions: 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. Installation of parts not supplied by MXR or its representative without prior written consent of MXR constitutes a material breach of this Agreement.
    Consumable items, accessories, networking hardware and software, printers and other peripherals are not covered under this Agreement. Parts that are deemed cosmetic or accessory in nature may be replaced at cost to the Customer.
12. Customer Provided Parts: If Equipment covered does not include parts replacement as specified in the Coverage Details section(s), or part(s) being replaced is not covered under the scope of the contract, customer may source their own parts with the following stipulations;
    1. 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.
    2. 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 rates listed in the Coverage Details
    3. 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 part(s) if purchased through MXR
13. CT Tube Usage Tracking (If Applicable): Customer agrees to allow MXR to review CT usage information during each preventative maintenance visit. This information will be input into MXR’s service/ticketing system. If any CT equipment covered on this contract is entitled to unlimited tube coverage it will be used to determine if customers usage of the CT is as agreed to in the Coverage Details section of the Equipment
14. Unlimited CT Tube Coverage (If Applicable): If tube coverage is unlimited as defined in the Coverage Details section(s) of this agreement, MXR will provide unlimited replacement tubes during the term if customer remains below the usage metric identified in the Coverage Details section of the equipment which will be one of the following; (i) Patient Count, (ii) mAs, (iii) Gantry Rotations, or (iv) Scan Seconds. If Customer exceeds the limit by 10% or more, Customer agrees to pay an overage fee indicated in the Coverage Details section, or renegotiate the remainder of the contract. If Customer is unwilling to pay the overage fee, the equipment in question will be changed from unlimited tube coverage to one tube replacement for the full contract term.
15. Increase in Cryogen Costs (If Applicable): Customer acknowledges the volatile nature of the market with regard to helium costs, and MXR’s lack of control of such costs. In the event that helium costs to MXR increase during the term of this Agreement or any renewals, MXR reserves the right, upon thirty (30) days written notice, to pass along the increase helium costs in the form of an increase in the Agreement charges
16. MXR Provided External Remote Monitoring Device (If Applicable): If the External Remote Monitoring Device (“ERMD”)is included as part of the Agreement, Customer agrees to and understands the following:
    1. MXR provides the ERMD free of charge to the Customer, however the ERMD remains the exclusive property of MXR at all times.
    2. Customer will be required to provide power and network connectivity including, but not limited to, an IP address and sufficient internet access. Should MXR require any additional work to ensure the ERMD’s complete functionality it will notify the Customer upon installation. The Customer will then be solely responsible for providing and ensuring any additional work be completed to ensure the ERMD’s complete functionality.
    3. Customer must allow the necessary network traffic through their firewall and VPN, if applicable, so the ERMD can communicate with MXR’s external service that receives and process information. If Customer cannot provide to the ERMD the required connectivity to communicate with MXR, MXR will provide a wireless hotspot which the customer will be billed $100 dollars per month on the billing invoice.
    4. Customer will notify MXR if they make changes that may affect the ERMD’s functionality and/or ability to communicate with MXR.
    5. The ERMD does not absolve or relieve the Customer of its sole responsibility to promptly report any known or suspected issues concerning the equipment and/or ERMD back to MXR.
    6. Pursuant to Section 26, MXR will not be liable for any damages and/or loss of revenue due to any problems identified or not identified by the ERMD
    7. Customer, or any other third-party who is permitted access to the MXR 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 Customer discovers that a third-party hindered or interfered with the ERMD services, or acted in such a manner as described in this Section (g) the Customer must immediately report such action to MXR.
    8. The ERMD does not have the ability to access any confidential patient information on the medical imaging equipment itself.
    9. The ERMD is the property of MXR, and will be returned by Customer upon termination of this Agreement. Customer will be invoiced for any replacement cost of the ERMD if it is not returned within thirty (30) days of termination of Agreement.
17. Uptime Guarantee for Services Only: If an Uptime Guarantee is referenced in the Equipment Coverage Details, MXR will guarantee the Equipment can be used for scanning patients for a defined percentage of the total coverage hours in a given year. For the purposes of calculating the uptime there will be two measurements, Base Time and Downtime. Base Time is defined as the total covered hours of the contract for a one (1) year term, so for example if the contracted hours of coverage are 8am to 5pm Monday through Friday there would be a total of 2,340 Base Time Hours (9 hours a day x 5 days a week x 52 weeks a year). Downtime is defined as the total number of hours the Equipment is unable to scan patients during covered hours excluded exceptions as referenced in this clause. For example if the contracted hours of coverage are 8am to 5pm Monday through Friday, MXR receives a call at 6:00am on Monday, and the system is available for scanning at 10:00am Monday there would be 2 hours of downtime as the two hours between 6:00am and 8:00am are not time covered under the contract. The formula for determining the uptime percentage will be (Base Time – Downtime)/Base Time.
    
    The following are reasons why downtime events would not be included in this calculation
    1. Scheduled Preventative Maintenance
    2. If MXR is prepared to perform maintenance services to make the Equipment operational but such service is refused by the Customer or is deferred by the Customer until a later time or date
    3. If the Equipment is not otherwise made available to MXRs’ service engineers
    4. If the Equipment is down is due to, associated with, or caused by misuse, negligence, or operator error
    5. Inadequate environmental conditions (not conforming with the environmental specifications outlined by the OEM), including temperature and humidity, line power exceeding OEM's requirements of voltage, frequency, impulses or transients
    6. Acts of God or other force majeure events
    
    If the equipment uptime level is found to be less than the guaranteed percentage over an annual period, as computed in accordance with the above guidelines, MXR will extend the term of this agreement by one week for each 1% point less than the contracted uptime (e.g., if contracted uptime is 96% and actual uptime is 93% MXR would extend the contract by 3 weeks)
18. Customer Responsibilities: In order for MXR to perform its duties and obligations under this Agreement (including warranty obligations), Customer agrees to:
    1. 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.
    2. 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.
    3. 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 under this Agreement. Customer shall notify MXR of any mobile equipment location(s) upon execution of this Agreement. Mobile equipment traveling more than fifty (50) miles from the original Customer location is excluded from the designated on-site response time and subject to additional travel charges.
    4. Promptly place service calls in accordance with any reasonable MXR protocols provided to Customer.
    5. Customer is responsible for reporting helium levels weekly back to MXR either by emailing CISHeliumReadings@mxrimaging.com or calling the main service number at 866-310-0071, Option 1.
    6. Establish and maintain security, virus protection, backup and disaster recovery plans for any data, images, software or equipment. This responsibility includes maintaining secure network and network security components, firewalls and security-related hardware or software, and preventing unauthorized access to the equipment.
    7. Promptly notify MXR in writing of any change in the Customer information specified in this Agreement, the location of the equipment or any change in Customer ownership or management control so that MXR may exercise its rights under the Assignment section. MXR will also notify Customer of any change in MXR ownership or management control so that Customer may exercise its rights under the Assignment section.
    8. Power and Grounding. Customer is responsible for ensuring satisfactory power quality and grounding per OEM specifications for all Equipment under this MXR Service Agreement.
    9. Customer is responsible for securing software license keys from the OEM as necessary to perform certain aspects of the services as outlined in the Agreement. If such keys are unavailable at the time of service and required to correct an issue, MXR cannot be held in breach or liable for its inability to correct the issue. Additionally, any downtime associated to an issue that requires unavailable license keys will not be counted towards any uptime guarantee if included in the Agreement.
    10. 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 with the afore mentioned code will be the sole responsibility of the Customer.
    11. Customer is responsible for being HIPAA compliant regarding the storage, transfer, retention, and/or deletion of any PHI or related information on the Equipment.
    12. 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.
    13. 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.
    14. Customer acknowledges and agrees that while under contract with MXR, they will not permit another service provider access to perform any service on the Equipment covered in this Agreement unless expressly authorized by MXR. Should MXR become aware that an unauthorized service has occurred, MXR will, at its discretion, send a field service engineer onsite to do an evaluation of the Equipment for any issues that may have arisen from the unauthorized service. Customer agrees to pay for costs related to the MXR engineers visit, as well as the cost to address any issues that were identified at the time of the evaluation. Customer acknowledges that it is in breach of this Agreement if they hire or permit another service provider to perform any service work on the Equipment during the term of this Agreement.
19. Taxes: 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.
20. Excusable Delays: Either party is excused from performing under this Agreement when the delay or failure to perform is caused by events or contingencies beyond a party’s reasonable control. Except for the Customer’s obligation to make payments to MXR, in the event that a delay occurs, the time for performance shall be extended as reasonably necessary to enable performance.
21. Exclusions: Unless otherwise specifically stated in the Equipment Coverage Details, MXR will not provide the following services or they will be quoted on a billable basis to Customer:
    1. The repair, replacement or disposal of any accessories, table and positioning pads, straps or consumable items including batteries for UPS systems.
    2. The repair, replacement of any MRI coil deemed by the repair facility as “not normal wear and tear” or “abuse”. This can include but not limited to; damage due to mishandling of the coil, cracked housing, patient fluid infiltration or other patient abuse.
    3. Any MRI repair service, including a system ramp/shim or any system parts including cryogens, compressed gases due to a system failure or quench outside of MXR control which includes power failures.
    4. Third party MRI coils are not covered (i.e Invivo wrist array, lower extremity, knee array, breast array, small extremity and 8 channel shoulder.)
    5. The repair, replacement of any ultrasound probe deemed by the repair facility as “not normal wear and tear” or “abuse”. This can include but not limited to: fluid infiltration due to tears in lends from improper cleaning, array or element damage due to mishandling of the probe.
    6. Glycol replacement is considered a consumable, and it is the responsibility of Customer to maintain glycol onsite. Any flush or refills needed due to inability to identify the glycol supply will be considered billable to Customer.
    7. The reimbursement of MXR expenditures for any non-contracted facility or rigging cost.
    8. Applications training or ongoing applications support.
    9. Any service or parts, including cryogens/compressed gasses, surge suppressor, power regulator devices or UPS systems, required as a result of anything external to the covered equipment, including building, van or trailer structural deficiency, power surge or power fluctuations, dust, sand or other particulate debris or environmental (air conditioning, water chiller, etc.) failure.
    10. If the Customer is notified or aware of a deficient part not covered under this Agreement and fails to take corrective action to mitigate damages to the covered equipment, the Customer assumes the responsibility for any parts and services provided by MXR covered under the Agreement.
    11. Service required due to equipment moves made by the Customer.
22. 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.
23. Governing Law; Jurisdiction and 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.
24. 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.
25. 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.
26. 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, 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.
    Indemnity: MXR shall indemnify and hold harmless Customer from losses and claims that are caused by the sole negligent acts or omissions of MXR.
27. Payment Terms: Invoices are payable in United States currency only to the address listed on MXR’s invoice. Unless otherwise expressly stated in the Service 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 under this or any 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.
    1. 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.
    2. 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.
    3. 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.
    4. If a third party is submitting payment to MXR on behalf of the Customer, MXR must be notified and that third party must be a signatory to this agreement;
28. Purchased Equipment and Parts: The following provisions shall apply only to the purchase of equipment or parts from MXR that are outside of the scope of a service agreement:
    1. Delivery: MXR reserves the right to make delivery in installments under a mutually agreed schedule. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delivery dates are approximate
    2. 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.
    3. 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 an 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.
    4. 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.
    5. 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.
    6. 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.
    7. 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.
29. 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.
30. Term: The term of this Agreement shall be for the period stated in the Service Proposal attached hereto.
31. Product Removal from Coverage: MXR will use commercially reasonable efforts to perform its obligations under this Agreement. In the event MXR determines it can no longer provide effective corrective maintenance or planned maintenance services for the item(s) included in this Agreement, MXR may remove the affected Product from coverage upon thirty (30) days’ prior written notice to the Customer, or upon mutual agreement with the Customer, MXR may elect to do one of the following: 1) to continue the Services and scheduled payment associated with this Agreement on a best effort basis, 2) reduce the level of coverage for the impacted equipment to a PM only level agreement, with the associated market pricing for altered coverage, or 3) remove from coverage the item impacted with no further obligation for the removed item other than Customer’s payment of all current outstanding invoices.
32. 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, 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
33. 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.
    If the Agreement between Customer and MXR covers more than one piece of Equipment, all pieces of Equipment must be listed on the Equipment Coverage Details page attached to this Agreement. If the Customer provides Notice of Breach relating to MXR’s service performance, that notice shall only cover the specific piece of Equipment at dispute. The Notice of Breach will not cover the remaining pieces of Equipment covered by this Agreement listed on the Equipment Coverage Details page. If MXR cannot cure the breach after being provided the necessary cure period (as outlined above) then the Customer may only terminate the Agreement for that specific piece of Equipment. The Agreement will remain in full force and effect for the remaining pieces of Equipment as listed on the Equipment Coverage Details page.
34. Termination for Cause: This Agreement may be terminated by the Customer with nintey (90) days written notice to MXR should: (a) the equipment covered be de-installed, sold or removed from service; or (b) the facility is shut down and the equipment covered is no longer being used on patients; or (c) the Customer becomes insolvent or the subject of a bankruptcy proceeding.
    In the event this Agreement is terminated prior to expiration for one of the 3 reasons listed above, MXR will recalculate all services (travel, labor, and parts) on a Time and Materials basis using the Travel and Labor rates listed on the Equipment Details page for the Equipment being removed, and Customer agrees to pay the difference between what Customer has paid to date for service on Equipment being removed vs. the calculated amount for what service would have been using the Times and Material rate calculated.
35. Termination Without Cause: In the event this agreement or portions of this agreement are terminated by Customer for a reason not listed in the Termination For Cause section , or if Customer is in breach of this contract as described in the Breach of Contract section, MXR will either;
    1. Invoice Customer for an amount equal to twenty percent (20%) of the remaining contract value for Equipment being removed
    2. Calculate all services (travel, labor, and parts) on a Time and Materials basis for the Equipment being removed and invoice customer the difference between what Customer has paid to date vs. the calculated amount for what service would have been using MXR’s then billable rates at the time of termination
    MXR will invoice Customer for whichever is the larger amount due to the Customer between these two options. Customer will have 30 days to remit payment

1. Agreement: The customer identified on the Service Proposal attached hereto (hereinafter referred to as “Customer”) has agreed to purchase, and MXR Imaging (hereinafter referred to as “MXR”) has agreed to provide, certain maintenance, repair, update and/or upgrade services (the “Services”) upon the terms and conditions set forth on the Service Proposal, the attached Equipment Coverage Details, and these Terms and Conditions (collectively, the “Agreement”). MXR and the Customer have caused this Agreement to be executed by their duly authorized officers or representatives, effective as of the later date of authorized signature hereon.
2. Order of Precedence: This Agreement comprises the entire agreement between the parties and supersedes all prior proposals, quotations, agreements, promises, or representations between the parties, whether verbal or written. The terms of this Agreement will prevail notwithstanding any variance with the terms of any present or future purchase or service order or request by the customer for services. In the event of any conflict between terms, the order of precedence shall be (a) the Service Proposal, (b) the Equipment Coverage Details, and (c) these Terms and Conditions. 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.
3. Additions and Deletions or System Upgrades from Service Coverage and Additional Services: Customer shall notify, consult, and receive validation from MXR in writing prior to (i) adding or deleting equipment, or (ii) upgrading existing system hardware or software to provide additional clinical functionality, or (iii) changing parts or other items to this Agreement after the initial inspection for service coverage described below.
   All additions, deletions or hardware/software upgrades outside the scope of this Agreement will be subject to new pricing, and will be quoted prior to being incorporated into this Agreement.
   For services requested by Customer outside of the Agreement, MXR may provide additional and separately-billed services such as: (i) instructions to Customer in the operation of the Equipment; (ii) the addition or removal of accessories, attachments, or other devices from the Equipment; (iii) the movement or relocation of the Equipment; (iv) resolution of problems or services caused by or necessitated by the unauthorized actions of Customer, third parties or external sources, including breach of warranties by the original manufacturer of the Equipment; (v) increase in service time necessitated by Customer’s operator error; (vi) repair due or damage from any cause other than ordinary use; and/or (vii) repair of damage or increase in service time caused by unauthorized alterations including, but not limited to, deviation from circuit or structural design of the equipment as provided by the original manufacturer(s) or MXR.
4. 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.
5. Amendment; Waiver; Survival: 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. The terms of this Agreement which by their nature are intended to survive its expiration (such as confidentiality provisions and Customer’s obligation to pay any amounts owed to MXR) will continue in full force and effect.
6. Assignment; Use of Subcontractors: 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.
7. Billable Service Calls: Service calls requested by Customer outside of this Agreement are billed by MXR at the then current regular and overtime rates for travel and on-site labor plus all applicable reasonable travel expenses. The customer will be provided a quotation for any equipment parts that need to be replaced. The customer authorizes MXR to perform and invoice for the service by scheduling the call. Billable service calls may be canceled by the customer with a minimum of twenty-four (24) hours written notice and the customer will have no liability whatsoever for timely cancellations.
8. Confidentiality: 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.
9. Coverage Terms for Service Support: For services set forth on the Service Proposal, MXR will supply all labor required for preventive and scheduled maintenance and remedial repairs on the Customer’s equipment as described in the Equipment Coverage Details. MXR will perform all maintenance services in accordance with the maintenance programs set forth in the applicable manufacturer’s service manuals. MXR may also replace all unserviceable parts with new or equivalent parts as specified by MXR on the initial inspection report described below; and as provided in this Agreement.
10. Initial Inspection (If Applicable): If equipment is new equipment to be serviced by MXR and not a renewal, within thirty (30) calendar days of the effective start date of this Agreement, MXR (or its authorized subcontractor) shall inspect each item of the Customer’s equipment and review all logs and documentation associated with it to determine its eligibility for service coverage hereunder. If MXR’s inspection reveals that an item of equipment is inoperable or in need of substantive repair, MXR will notify customer within ten (10) business days of the date of inspection and provide a written estimate of the cost of repair at MXR’s then-current list prices/rates for time and materials. Service requests made prior to the completion of the inspection that require part(s) replacement will be treated as a pre-existing condition and the part repair or replacement will be invoiced to the Customer. Equipment identified by MXR as requiring repair service but not authorized for repair or otherwise repairable by Customer will be removed from service support under this Agreement and deleted from the Equipment Coverage Detail until such repair is completed. If Customer does not permit MXR to conduct its inspection within the above thirty (30) calendar day period, or if any items of equipment are in storage, not in use or otherwise not available for inspection during the thirty (30) calendar day inspection period, Customer will be responsible for all repairs necessary to bring that item of equipment into safe operable condition before MXR will provide service coverage for it.
11. Parts and Replacements; Exclusions: 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. Installation of parts not supplied by MXR or its representative without prior written consent of MXR constitutes a material breach of this Agreement.
    Consumable items, accessories, networking hardware and software, printers and other peripherals are not covered under this Agreement. Parts that are deemed cosmetic or accessory in nature may be replaced at cost to the Customer.
12. Customer Provided Parts: If Equipment covered does not include parts replacement as specified in the Coverage Details section(s), or part(s) being replaced is not covered under the scope of the contract, customer may source their own parts with the following stipulations;
    1. 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.
    2. 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 rates listed in the Coverage Details
    3. 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 part(s) if purchased through MXR
13. CT Tube Usage Tracking (If Applicable): Customer agrees to allow MXR to review CT usage information during each preventative maintenance visit. This information will be input into MXR’s service/ticketing system. If any CT equipment covered on this contract is entitled to unlimited tube coverage it will be used to determine if customers usage of the CT is as agreed to in the Coverage Details section of the Equipment
14. Unlimited CT Tube Coverage (If Applicable): If tube coverage is unlimited as defined in the Coverage Details section(s) of this agreement, MXR will provide unlimited replacement tubes during the term if customer remains below the usage metric identified in the Coverage Details section of the equipment which will be one of the following; (i) Patient Count, (ii) mAs, (iii) Gantry Rotations, or (iv) Scan Seconds. If Customer exceeds the limit by 10% or more, Customer agrees to pay an overage fee indicated in the Coverage Details section, or renegotiate the remainder of the contract. If Customer is unwilling to pay the overage fee, the equipment in question will be changed from unlimited tube coverage to one tube replacement for the full contract term.
15. Increase in Cryogen Costs (If Applicable): Customer acknowledges the volatile nature of the market with regard to helium costs, and MXR’s lack of control of such costs. In the event that helium costs to MXR increase during the term of this Agreement or any renewals, MXR reserves the right, upon thirty (30) days written notice, to pass along the increase helium costs in the form of an increase in the Agreement charges
16. MXR Provided External Remote Monitoring Device (If Applicable): If the External Remote Monitoring Device (“ERMD”)is included as part of the Agreement, Customer agrees to and understands the following:
    1. MXR provides the ERMD free of charge to the Customer, however the ERMD remains the exclusive property of MXR at all times.
    2. Customer will be required to provide power and network connectivity including, but not limited to, an IP address and sufficient internet access. Should MXR require any additional work to ensure the ERMD’s complete functionality it will notify the Customer upon installation. The Customer will then be solely responsible for providing and ensuring any additional work be completed to ensure the ERMD’s complete functionality.
    3. Customer must allow the necessary network traffic through their firewall and VPN, if applicable, so the ERMD can communicate with MXR’s external service that receives and process information. If Customer cannot provide to the ERMD the required connectivity to communicate with MXR, MXR will provide a wireless hotspot which the customer will be billed $100 dollars per month on the billing invoice.
    4. Customer will notify MXR if they make changes that may affect the ERMD’s functionality and/or ability to communicate with MXR.
    5. The ERMD does not absolve or relieve the Customer of its sole responsibility to promptly report any known or suspected issues concerning the equipment and/or ERMD back to MXR.
    6. Pursuant to Section 26, MXR will not be liable for any damages and/or loss of revenue due to any problems identified or not identified by the ERMD
    7. Customer, or any other third-party who is permitted access to the MXR 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 Customer discovers that a third-party hindered or interfered with the ERMD services, or acted in such a manner as described in this Section (g) the Customer must immediately report such action to MXR.
    8. The ERMD does not have the ability to access any confidential patient information on the medical imaging equipment itself.
    9. The ERMD is the property of MXR, and will be returned by Customer upon termination of this Agreement. Customer will be invoiced for any replacement cost of the ERMD if it is not returned within thirty (30) days of termination of Agreement.
17. Uptime Guarantee for Services Only: If an Uptime Guarantee is referenced in the Equipment Coverage Details, MXR will guarantee the Equipment can be used for scanning patients for a defined percentage of the total coverage hours in a given year. For the purposes of calculating the uptime there will be two measurements, Base Time and Downtime. Base Time is defined as the total covered hours of the contract for a one (1) year term, so for example if the contracted hours of coverage are 8am to 5pm Monday through Friday there would be a total of 2,340 Base Time Hours (9 hours a day x 5 days a week x 52 weeks a year). Downtime is defined as the total number of hours the Equipment is unable to scan patients during covered hours excluded exceptions as referenced in this clause. For example if the contracted hours of coverage are 8am to 5pm Monday through Friday, MXR receives a call at 6:00am on Monday, and the system is available for scanning at 10:00am Monday there would be 2 hours of downtime as the two hours between 6:00am and 8:00am are not time covered under the contract. The formula for determining the uptime percentage will be (Base Time – Downtime)/Base Time.
    
    The following are reasons why downtime events would not be included in this calculation
    1. Scheduled Preventative Maintenance
    2. If MXR is prepared to perform maintenance services to make the Equipment operational but such service is refused by the Customer or is deferred by the Customer until a later time or date
    3. If the Equipment is not otherwise made available to MXRs’ service engineers
    4. If the Equipment is down is due to, associated with, or caused by misuse, negligence, or operator error
    5. Inadequate environmental conditions (not conforming with the environmental specifications outlined by the OEM), including temperature and humidity, line power exceeding OEM's requirements of voltage, frequency, impulses or transients
    6. Acts of God or other force majeure events
    
    If the equipment uptime level is found to be less than the guaranteed percentage over an annual period, as computed in accordance with the above guidelines, MXR will extend the term of this agreement by one week for each 1% point less than the contracted uptime (e.g., if contracted uptime is 96% and actual uptime is 93% MXR would extend the contract by 3 weeks)
18. Customer Responsibilities: In order for MXR to perform its duties and obligations under this Agreement (including warranty obligations), Customer agrees to:
    1. 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.
    2. 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.
    3. 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 under this Agreement. Customer shall notify MXR of any mobile equipment location(s) upon execution of this Agreement. Mobile equipment traveling more than fifty (50) miles from the original Customer location is excluded from the designated on-site response time and subject to additional travel charges.
    4. Promptly place service calls in accordance with any reasonable MXR protocols provided to Customer.
    5. Customer is responsible for reporting helium levels weekly back to MXR either by emailing CISHeliumReadings@mxrimaging.com or calling the main service number at 866-310-0071, Option 1.
    6. Establish and maintain security, virus protection, backup and disaster recovery plans for any data, images, software or equipment. This responsibility includes maintaining secure network and network security components, firewalls and security-related hardware or software, and preventing unauthorized access to the equipment.
    7. Promptly notify MXR in writing of any change in the Customer information specified in this Agreement, the location of the equipment or any change in Customer ownership or management control so that MXR may exercise its rights under the Assignment section. MXR will also notify Customer of any change in MXR ownership or management control so that Customer may exercise its rights under the Assignment section.
    8. Power and Grounding. Customer is responsible for ensuring satisfactory power quality and grounding per OEM specifications for all Equipment under this MXR Service Agreement.
    9. Customer is responsible for securing software license keys from the OEM as necessary to perform certain aspects of the services as outlined in the Agreement. If such keys are unavailable at the time of service and required to correct an issue, MXR cannot be held in breach or liable for its inability to correct the issue. Additionally, any downtime associated to an issue that requires unavailable license keys will not be counted towards any uptime guarantee if included in the Agreement.
    10. 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 with the afore mentioned code will be the sole responsibility of the Customer.
    11. Customer is responsible for being HIPAA compliant regarding the storage, transfer, retention, and/or deletion of any PHI or related information on the Equipment.
    12. 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.
    13. 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.
19. Taxes: 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.
20. Excusable Delays: Either party is excused from performing under this Agreement when the delay or failure to perform is caused by events or contingencies beyond a party’s reasonable control. Except for the Customer’s obligation to make payments to MXR, in the event that a delay occurs, the time for performance shall be extended as reasonably necessary to enable performance.
21. Exclusions: Unless otherwise specifically stated in the Equipment Coverage Details, MXR will not provide the following services or they will be quoted on a billable basis to Customer:
    1. The repair, replacement or disposal of any accessories, table and positioning pads, straps or consumable items including batteries for UPS systems.
    2. The repair, replacement of any MRI coil deemed by the repair facility as “not normal wear and tear” or “abuse”. This can include but not limited to; damage due to mishandling of the coil, cracked housing, patient fluid infiltration or other patient abuse.
    3. Any MRI repair service, including a system ramp/shim or any system parts including cryogens, compressed gases due to a system failure or quench outside of MXR control which includes power failures.
    4. Third party MRI coils are not covered (i.e Invivo wrist array, lower extremity, knee array, breast array, small extremity and 8 channel shoulder.)
    5. The repair, replacement of any ultrasound probe deemed by the repair facility as “not normal wear and tear” or “abuse”. This can include but not limited to: fluid infiltration due to tears in lends from improper cleaning, array or element damage due to mishandling of the probe.
    6. Glycol replacement is considered a consumable, and it is the responsibility of Customer to maintain glycol onsite. Any flush or refills needed due to inability to identify the glycol supply will be considered billable to Customer.
    7. The reimbursement of MXR expenditures for any non-contracted facility or rigging cost.
    8. Applications training or ongoing applications support.
    9. Any service or parts, including cryogens/compressed gasses, surge suppressor, power regulator devices or UPS systems, required as a result of anything external to the covered equipment, including building, van or trailer structural deficiency, power surge or power fluctuations, dust, sand or other particulate debris or environmental (air conditioning, water chiller, etc.) failure.
    10. If the Customer is notified or aware of a deficient part not covered under this Agreement and fails to take corrective action to mitigate damages to the covered equipment, the Customer assumes the responsibility for any parts and services provided by MXR covered under the Agreement.
    11. Service required due to equipment moves made by the Customer.
22. 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.
23. 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.
24. 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.
25. 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.
26. 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, 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.
    Indemnity: MXR shall indemnify and hold harmless Customer from losses and claims that are caused by the sole negligent acts or omissions of MXR.
27. Payment Terms: Invoices are payable in United States currency only to the address listed on MXR’s invoice. Unless otherwise expressly stated in the Service 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 under this or any 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.
    1. 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.
    2. 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.
    3. 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.
    4. If a third party is submitting payment to MXR on behalf of the Customer, MXR must be notified and that third party must be a signatory to this agreement;
28. Purchased Equipment and Parts: The following provisions shall apply only to the purchase of equipment or parts from MXR that are outside of the scope of a service agreement:
    1. Delivery: MXR reserves the right to make delivery in installments under a mutually agreed schedule. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delivery dates are approximate
    2. 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.
    3. 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 an 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.
    4. 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.
    5. 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.
    6. 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.
    7. 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.
29. 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.
30. Term: The term of this Agreement shall be for the period stated in the Service Proposal attached hereto.
31. Product Removal from Coverage: MXR will use commercially reasonable efforts to perform its obligations under this Agreement. In the event MXR determines it can no longer provide effective corrective maintenance or planned maintenance services for the item(s) included in this Agreement, MXR may remove the affected Product from coverage upon thirty (30) days’ prior written notice to the Customer, or upon mutual agreement with the Customer, MXR may elect to do one of the following: 1) to continue the Services and scheduled payment associated with this Agreement on a best effort basis, 2) reduce the level of coverage for the impacted equipment to a PM only level agreement, with the associated market pricing for altered coverage, or 3) remove from coverage the item impacted with no further obligation for the removed item other than Customer’s payment of all current outstanding invoices.
32. 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, 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
33. 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.
    If the Agreement between Customer and MXR covers more than one piece of Equipment, all pieces of Equipment must be listed on the Equipment Coverage Details page attached to this Agreement. If the Customer provides Notice of Breach relating to MXR’s service performance, that notice shall only cover the specific piece of Equipment at dispute. The Notice of Breach will not cover the remaining pieces of Equipment covered by this Agreement listed on the Equipment Coverage Details page. If MXR cannot cure the breach after being provided the necessary cure period (as outlined above) then the Customer may only terminate the Agreement for that specific piece of Equipment. The Agreement will remain in full force and effect for the remaining pieces of Equipment as listed on the Equipment Coverage Details page.
34. Termination for Cause: This Agreement may be terminated by the Customer with nintey (90) days written notice to MXR should: (a) the equipment covered be de-installed, sold or removed from service; or (b) the facility is shut down and the equipment covered is no longer being used on patients; or (c) the Customer becomes insolvent or the subject of a bankruptcy proceeding.
    In the event this Agreement is terminated prior to expiration for one of the 3 reasons listed above, MXR will recalculate all services (travel, labor, and parts) on a Time and Materials basis using the Travel and Labor rates listed on the Equipment Details page for the Equipment being removed, and Customer agrees to pay the difference between what Customer has paid to date for service on Equipment being removed vs. the calculated amount for what service would have been using the Times and Material rate calculated.
35. Termination Without Cause: In the event this agreement or portions of this agreement are terminated by Customer for a reason not listed in the Termination For Cause section , or if Customer is in breach of this contract as described in the Breach of Contract section, MXR will either;
    1. Invoice Customer for an amount equal to twenty percent (20%) of the remaining contract value for Equipment being removed
    2. Calculate all services (travel, labor, and parts) on a Time and Materials basis for the Equipment being removed and invoice customer the difference between what Customer has paid to date vs. the calculated amount for what service would have been using MXR’s then billable rates at the time of termination
    MXR will invoice Customer for whichever is the larger amount due to the Customer between these two options. Customer will have 30 days to remit payment

1. Agreement: The customer identified on the Service Proposal attached hereto (hereinafter referred to as “Customer”) has agreed to purchase, and MXR Imaging (hereinafter referred to as “MXR”) has agreed to provide, certain maintenance, repair, update and/or upgrade services (the “Services”) upon the terms and conditions set forth on the Service Proposal, the attached Equipment Coverage Details, and these Terms and Conditions (collectively, the “Agreement”). MXR and the Customer have caused this Agreement to be executed by their duly authorized officers or representatives, effective as of the later date of authorized signature hereon.
2. Order of Precedence: This Agreement comprises the entire agreement between the parties and supersedes all prior proposals, quotations, agreements, promises, or representations between the parties, whether verbal or written. The terms of this Agreement will prevail notwithstanding any variance with the terms of any present or future purchase or service order or request by the customer for services. In the event of any conflict between terms, the order of precedence shall be (a) the Service Proposal, (b) the Equipment Coverage Details, and (c) these Terms and Conditions. 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.
3. Additions and Deletions or System Upgrades from Service Coverage and Additional Services: Customer shall notify MXR in writing prior to (i) adding or deleting equipment, or (ii) upgrading existing system hardware or software to provide additional clinical functionality, or (iii) changing parts or other items to this Agreement after the initial inspection for service coverage described below.
   All additions, deletions or hardware/software upgrades outside the scope of this Agreement will be subject to new pricing, and will be quoted prior to being incorporated into this Agreement.
   For services requested by Customer outside of the Agreement, MXR may provide additional and separately-billed services such as: (i) instructions to Customer in the operation of the Equipment; (ii) the addition or removal of accessories, attachments, or other devices from the Equipment; (iii) the movement or relocation of the Equipment; (iv) resolution of problems or services caused by or necessitated by the unauthorized actions of Customer, third parties or external sources, including breach of warranties by the original manufacturer of the Equipment; (v) increase in service time necessitated by Customer’s operator error; (vi) repair due or damage from any cause other than ordinary use; and/or (vii) repair of damage or increase in service time caused by unauthorized alterations including, but not limited to, deviation from circuit or structural design of the equipment as provided by the original manufacturer(s) or MXR.
4. 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.
5. Amendment; Waiver; Survival: 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. The terms of this Agreement which by their nature are intended to survive its expiration (such as confidentiality provisions and Customer’s obligation to pay any amounts owed to MXR) will continue in full force and effect.
6. Assignment; Use of Subcontractors: 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.
7. Billable Service Calls: Service calls requested by Customer outside of this Agreement are billed by MXR at the then current regular and overtime rates for travel and on-site labor plus all applicable reasonable travel expenses. The customer will be provided a quotation for any equipment parts that need to be replaced. The customer authorizes MXR to perform and invoice for the service by scheduling the call. Billable service calls may be canceled by the customer with a minimum of twenty-four (24) hours written notice and the customer will have no liability whatsoever for timely cancellations.
8. Confidentiality: 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.
9. Coverage Terms for Service Support: For services set forth on the Service Proposal, MXR will supply all labor required for preventive and scheduled maintenance and remedial repairs on the Customer’s equipment as described in the Equipment Coverage Details. MXR will perform all maintenance services in accordance with the maintenance programs set forth in the applicable manufacturer’s service manuals. MXR may also replace all unserviceable parts with new or equivalent parts as specified by MXR on the initial inspection report described below; and as provided in this Agreement.
10. Initial Inspection (If Applicable): If equipment is new equipment to be serviced by MXR and not a renewal, within thirty (30) calendar days of the effective start date of this Agreement, MXR (or its authorized subcontractor) shall inspect each item of the Customer’s equipment and review all logs and documentation associated with it to determine its eligibility for service coverage hereunder. If MXR’s inspection reveals that an item of equipment is inoperable or in need of substantive repair, MXR will notify customer within ten (10) business days of the date of inspection and provide a written estimate of the cost of repair at MXR’s then-current list prices/rates for time and materials. Service requests made prior to the completion of the inspection that require part(s) replacement will be treated as a pre-existing condition and the part repair or replacement will be invoiced to the Customer. Equipment identified by MXR as requiring repair service but not authorized for repair or otherwise repairable by Customer will be removed from service support under this Agreement and deleted from the Equipment Coverage Detail until such repair is completed. If Customer does not permit MXR to conduct its inspection within the above thirty (30) calendar day period, or if any items of equipment are in storage, not in use or otherwise not available for inspection during the thirty (30) calendar day inspection period, Customer will be responsible for all repairs necessary to bring that item of equipment into safe operable condition before MXR will provide service coverage for it.
11. Parts and Replacements; Exclusions: 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. Installation of parts not supplied by MXR or its representative without prior written consent of MXR constitutes a material breach of this Agreement.
    Consumable items, accessories, networking hardware and software, printers and other peripherals are not covered under this Agreement. Parts that are deemed cosmetic or accessory in nature may be replaced at cost to the Customer.
12. Customer Provided Parts: If Equipment covered does not include parts replacement as specified in the Coverage Details section(s), or part(s) being replaced is not covered under the scope of the contract, customer may source their own parts with the following stipulations;
    1. 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.
    2. 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 rates listed in the Coverage Details
    3. 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 part(s) if purchased through MXR
13. CT Tube Usage Tracking (If Applicable): Customer agrees to allow MXR to review CT usage information during each preventative maintenance visit. This information will be input into MXR’s service/ticketing system. If any CT equipment covered on this contract is entitled to unlimited tube coverage it will be used to determine if customers usage of the CT is as agreed to in the Coverage Details section of the Equipment
14. Unlimited CT Tube Coverage (If Applicable): If tube coverage is unlimited as defined in the Coverage Details section(s) of this agreement, MXR will provide unlimited replacement tubes during the term if customer remains below the usage metric identified in the Coverage Details section of the equipment which will be one of the following; (i) Patient Count, (ii) mAs, (iii) Gantry Rotations, or (iv) Scan Seconds. If Customer exceeds the limit by 10% or more, Customer agrees to pay an overage fee indicated in the Coverage Details section, or renegotiate the remainder of the contract. If Customer is unwilling to pay the overage fee, the equipment in question will be changed from unlimited tube coverage to one tube replacement for the full contract term.
15. Increase in Cryogen Costs (If Applicable): Customer acknowledges the volatile nature of the market with regard to helium costs, and MXR’s lack of control of such costs. In the event that helium costs to MXR increase during the term of this Agreement or any renewals, MXR reserves the right, upon thirty (30) days written notice, to pass along the increase helium costs in the form of an increase in the Agreement charges
16. MXR Provided External Remote Monitoring Device (If Applicable): If the External Remote Monitoring Device (“ERMD”)is included as part of the Agreement, Customer agrees to and understands the following:
    1. MXR provides the ERMD free of charge to the Customer, however the ERMD remains the exclusive property of MXR at all times.
    2. Customer will be required to provide power and network connectivity including, but not limited to, an IP address and sufficient internet access. Should MXR require any additional work to ensure the ERMD’s complete functionality it will notify the Customer upon installation. The Customer will then be solely responsible for providing and ensuring any additional work be completed to ensure the ERMD’s complete functionality.
    3. Customer must allow the necessary network traffic through their firewall and VPN, if applicable, so the ERMD can communicate with MXR’s external service that receives and process information. If Customer cannot provide to the ERMD the required connectivity to communicate with MXR, MXR will provide a wireless hotspot which the customer will be billed $100 dollars per month on the billing invoice.
    4. Customer will notify MXR if they make changes that may affect the ERMD’s functionality and/or ability to communicate with MXR.
    5. The ERMD does not absolve or relieve the Customer of its sole responsibility to promptly report any known or suspected issues concerning the equipment and/or ERMD back to MXR.
    6. Pursuant to Section 26, MXR will not be liable for any damages and/or loss of revenue due to any problems identified or not identified by the ERMD
    7. Customer, or any other third-party who is permitted access to the MXR 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 Customer discovers that a third-party hindered or interfered with the ERMD services, or acted in such a manner as described in this Section (g) the Customer must immediately report such action to MXR.
    8. The ERMD does not have the ability to access any confidential patient information on the medical imaging equipment itself.
    9. The ERMD is the property of MXR, and will be returned by Customer upon termination of this Agreement. Customer will be invoiced for any replacement cost of the ERMD if it is not returned within thirty (30) days of termination of Agreement.
17. Uptime Guarantee for Services Only: If an Uptime Guarantee is referenced in the Equipment Coverage Details, MXR will guarantee the Equipment can be used for scanning patients for a defined percentage of the total coverage hours in a given year. For the purposes of calculating the uptime there will be two measurements, Base Time and Downtime. Base Time is defined as the total covered hours of the contract for a one (1) year term, so for example if the contracted hours of coverage are 8am to 5pm Monday through Friday there would be a total of 2,340 Base Time Hours (9 hours a day x 5 days a week x 52 weeks a year). Downtime is defined as the total number of hours the Equipment is unable to scan patients during covered hours excluded exceptions as referenced in this clause. For example if the contracted hours of coverage are 8am to 5pm Monday through Friday, MXR receives a call at 6:00am on Monday, and the system is available for scanning at 10:00am Monday there would be 2 hours of downtime as the two hours between 6:00am and 8:00am are not time covered under the contract. The formula for determining the uptime percentage will be (Base Time – Downtime)/Base Time.
    
    The following are reasons why downtime events would not be included in this calculation
    1. Scheduled Preventative Maintenance
    2. If MXR is prepared to perform maintenance services to make the Equipment operational but such service is refused by the Customer or is deferred by the Customer until a later time or date
    3. If the Equipment is not otherwise made available to MXRs’ service engineers
    4. If the Equipment is down is due to, associated with, or caused by misuse, negligence, or operator error
    5. Inadequate environmental conditions (not conforming with the environmental specifications outlined by the OEM), including temperature and humidity, line power exceeding OEM's requirements of voltage, frequency, impulses or transients
    6. Acts of God or other force majeure events
    
    If the equipment uptime level is found to be less than the guaranteed percentage over an annual period, as computed in accordance with the above guidelines, MXR will extend the term of this agreement by one week for each 1% point less than the contracted uptime (e.g., if contracted uptime is 96% and actual uptime is 93% MXR would extend the contract by 3 weeks)
18. Customer Responsibilities: In order for MXR to perform its duties and obligations under this Agreement (including warranty obligations), Customer agrees to:
    1. 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.
    2. 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.
    3. 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 under this Agreement. Customer shall notify MXR of any mobile equipment location(s) upon execution of this Agreement. Mobile equipment traveling more than fifty (50) miles from the original Customer location is excluded from the designated on-site response time and subject to additional travel charges.
    4. Promptly place service calls in accordance with any reasonable MXR protocols provided to Customer.
    5. Customer is responsible for reporting helium levels weekly back to MXR either by emailing CISHeliumReadings@mxrimaging.com or calling the main service number at 866-310-0071, Option 1.
    6. Establish and maintain security, virus protection, backup and disaster recovery plans for any data, images, software or equipment. This responsibility includes maintaining secure network and network security components, firewalls and security-related hardware or software, and preventing unauthorized access to the equipment.
    7. Promptly notify MXR in writing of any change in the Customer information specified in this Agreement, the location of the equipment or any change in Customer ownership or management control so that MXR may exercise its rights under the Assignment section. MXR will also notify Customer of any change in MXR ownership or management control so that Customer may exercise its rights under the Assignment section.
    8. Power and Grounding. Customer is responsible for ensuring satisfactory power quality and grounding per OEM specifications for all Equipment under this MXR Service Agreement.
    9. Customer is responsible for securing software license keys from the OEM as necessary to perform certain aspects of the services as outlined in the Agreement. If such keys are unavailable at the time of service and required to correct an issue, MXR cannot be held in breach or liable for its inability to correct the issue. Additionally, any downtime associated to an issue that requires unavailable license keys will not be counted towards any uptime guarantee if included in the Agreement.
    10. 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 with the afore mentioned code will be the sole responsibility of the Customer.
19. Consumable Items: Customer shall provide, at no charge to MXR, the necessary cleaning supplies required by MXR in the performance of the Services hereunder.
20. Taxes: 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.
21. Excusable Delays: Either party is excused from performing under this Agreement when the delay or failure to perform is caused by events or contingencies beyond a party’s reasonable control. Except for the Customer’s obligation to make payments to MXR, in the event that a delay occurs, the time for performance shall be extended as reasonably necessary to enable performance.
22. Exclusions: Unless otherwise specifically stated in the Equipment Coverage Details, MXR will not provide the following services or they will be quoted on a billable basis to Customer:
    1. The repair, replacement or disposal of any accessories, table and positioning pads, straps or consumable items including batteries for UPS systems.
    2. The repair, replacement of any MRI coil deemed by the repair facility as “not normal wear and tear” or “abuse”. This can include but not limited to; damage due to mishandling of the coil, cracked housing, patient fluid infiltration or other patient abuse.
    3. Any MRI repair service, including a system ramp/shim or any system parts including cryogens, compressed gases due to a system failure or quench outside of MXR control which includes power failures.
    4. Third party MRI coils are not covered (i.e Invivo wrist array, lower extremity, knee array, breast array, small extremity and 8 channel shoulder.)
    5. The repair, replacement of any ultrasound probe deemed by the repair facility as “not normal wear and tear” or “abuse”. This can include but not limited to: fluid infiltration due to tears in lends from improper cleaning, array or element damage due to mishandling of the probe.
    6. Glycol replacement is considered a consumable, and it is the responsibility of Customer to maintain glycol onsite. Any flush or refills needed due to inability to identify the glycol supply will be considered billable to Customer.
    7. The reimbursement of MXR expenditures for any non-contracted facility or rigging cost.
    8. Applications training or ongoing applications support.
    9. Any service or parts, including cryogens/compressed gasses, surge suppressor, power regulator devices or UPS systems, required as a result of anything external to the covered equipment, including building, van or trailer structural deficiency, power surge or power fluctuations, dust, sand or other particulate debris or environmental (air conditioning, water chiller, etc.) failure.
    10. If the Customer is notified or aware of a deficient part not covered under this Agreement and fails to take corrective action to mitigate damages to the covered equipment, the Customer assumes the responsibility for any parts and services provided by MXR covered under the Agreement.
    11. Service required due to equipment moves made by the Customer.
23. 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.
24. Independent Contractor: Nothing in this Agreement will be construed to designate MXR or any of its employees or MXR subcontractors or any of their employees as Customer’s employees or agents; except for the grant of limited agency above in the “Agent of Customer” Section above.
25. 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.
26. 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, 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.
    Indemnity: MXR shall indemnify and hold harmless Customer from losses and claims that are caused by the sole negligent acts or omissions of MXR.
27. Payment Terms: Invoices are payable in United States currency only to the address listed on MXR’s invoice. Unless otherwise expressly stated in the Service 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 under this or any 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.
    1. 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.
    2. 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.
    3. 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.
    4. If a third party is submitting payment to MXR on behalf of the Customer, MXR must be notified and that third party must be a signatory to this agreement;
28. Purchased Equipment and Parts: The following provisions shall apply only to the purchase of equipment or parts from MXR that are outside of the scope of a service agreement:
    1. Delivery: MXR reserves the right to make delivery in installments under a mutually agreed schedule. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delivery dates are approximate
    2. 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.
    3. 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 an 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.
    4. 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.
    5. 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.
    6. 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.
    7. 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.
29. 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.
30. Term: The term of this Agreement shall be for the period stated in the Service Proposal attached hereto. The term shall automatically renew for an additional period equal to the length of the original period unless either party gives the other a written notice, within sixty (60) business days of the end of the current term of its election to terminate the Agreement at the end of the then current term. MXR reserves the right to adjust pricing and/or rates under this Agreement to its then-current rates at the time of the renewal term.
31. Product Removal from Coverage: MXR will use commercially reasonable efforts to perform its obligations under this Agreement. In the event MXR determines it can no longer provide effective corrective maintenance or planned maintenance services for the item(s) included in this Agreement, MXR may remove the affected Product from coverage upon thirty (30) days’ prior written notice to the Customer, or upon mutual agreement with the Customer, MXR may elect to do one of the following: 1) to continue the Services and scheduled payment associated with this Agreement on a best effort basis, 2) reduce the level of coverage for the impacted equipment to a PM only level agreement, with the associated market pricing for altered coverage, or 3) remove from coverage the item impacted with no further obligation for the removed item other than Customer’s payment of all current outstanding invoices.
32. 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, 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
33. 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.
    If the Agreement between Customer and MXR covers more than one piece of Equipment, all pieces of Equipment must be listed on the Equipment Coverage Details page attached to this Agreement. If the Customer provides Notice of Breach relating to MXR’s service performance, that notice shall only cover the specific piece of Equipment at dispute. The Notice of Breach will not cover the remaining pieces of Equipment covered by this Agreement listed on the Equipment Coverage Details page. If MXR cannot cure the breach after being provided the necessary cure period (as outlined above) then the Customer may only terminate the Agreement for that specific piece of Equipment. The Agreement will remain in full force and effect for the remaining pieces of Equipment as listed on the Equipment Coverage Details page.
34. Termination for Cause: This Agreement may be terminated by the Customer with nintey (90) days written notice to MXR should: (a) the equipment covered be de-installed, sold or removed from service; or (b) the facility is shut down and the equipment covered is no longer being used on patients; or (c) the Customer becomes insolvent or the subject of a bankruptcy proceeding.
    In the event this Agreement is terminated prior to expiration for one of the 3 reasons listed above, MXR will recalculate all services (travel, labor, and parts) on a Time and Materials basis using the Travel and Labor rates listed on the Equipment Details page for the Equipment being removed, and Customer agrees to pay the difference between what Customer has paid to date for service on Equipment being removed vs. the calculated amount for what service would have been using the Times and Material rate calculated.
35. Termination Without Cause: In the event this agreement or portions of this agreement are terminated by Customer for a reason not listed in the Termination For Cause section , or if Customer is in breach of this contract as described in the Breach of Contract section, MXR will either;
    1. Invoice Customer for an amount equal to twenty percent (20%) of the remaining contract value for Equipment being removed
    2. Calculate all services (travel, labor, and parts) on a Time and Materials basis for the Equipment being removed and invoice customer the difference between what Customer has paid to date vs. the calculated amount for what service would have been using MXR’s then billable rates at the time of termination
    MXR will invoice Customer for whichever is the larger amount due to the Customer between these two options. Customer will have 30 days to remit payment

1. Agreement: The customer identified on the Service Proposal attached hereto (hereinafter referred to as “Customer”) has agreed to purchase, and MXR Imaging (hereinafter referred to as “MXR”) has agreed to provide, certain maintenance, repair, update and/or upgrade services (the “Services”) upon the terms and conditions set forth on the Service Proposal, the attached Equipment Coverage Details, and these Terms and Conditions (collectively, the “Agreement”). MXR and the Customer have caused this Agreement to be executed by their duly authorized officers or representatives, effective as of the later date of authorized signature hereon.
2. Order of Precedence: This Agreement comprises the entire agreement between the parties and supersedes all prior proposals, quotations, agreements, promises, or representations between the parties, whether verbal or written. The terms of this Agreement will prevail notwithstanding any variance with the terms of any present or future purchase or service order or request by the customer for services. In the event of any conflict between terms, the order of precedence shall be (a) the Service Proposal, (b) the Equipment Coverage Details, and (c) these Terms and Conditions. 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.
3. Additions and Deletions or System Upgrades from Service Coverage and Additional Services: Customer shall notify MXR in writing prior to (i) adding or deleting equipment, or (ii) upgrading existing system hardware or software to provide additional clinical functionality, or (iii) changing parts or other items to this Agreement after the initial inspection for service coverage described below.
   All additions, deletions or hardware/software upgrades outside the scope of this Agreement will be subject to new pricing, and will be quoted prior to being incorporated into this Agreement.
   For services requested by Customer outside of the Agreement, MXR may provide additional and separately-billed services such as: (i) instructions to Customer in the operation of the Equipment; (ii) the addition or removal of accessories, attachments, or other devices from the Equipment; (iii) the movement or relocation of the Equipment; (iv) resolution of problems or services caused by or necessitated by the unauthorized actions of Customer, third parties or external sources, including breach of warranties by the original manufacturer of the Equipment; (v) increase in service time necessitated by Customer’s operator error; (vi) repair due or damage from any cause other than ordinary use; and/or (vii) repair of damage or increase in service time caused by unauthorized alterations including, but not limited to, deviation from circuit or structural design of the equipment as provided by the original manufacturer(s) or MXR.
4. 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.
5. Amendment; Waiver; Survival: 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. The terms of this Agreement which by their nature are intended to survive its expiration (such as confidentiality provisions and Customer’s obligation to pay any amounts owed to MXR) will continue in full force and effect.
6. Assignment; Use of Subcontractors: 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.
7. Billable Service Calls: Service calls requested by Customer outside of this Agreement are billed by MXR at the then current regular and overtime rates for travel and on-site labor plus all applicable reasonable travel expenses. The customer will be provided a quotation for any equipment parts that need to be replaced. The customer authorizes MXR to perform and invoice for the service by scheduling the call. Billable service calls may be canceled by the customer with a minimum of twenty-four (24) hours written notice and the customer will have no liability whatsoever for timely cancellations.
8. Confidentiality: 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.
9. Coverage Terms for Service Support: For services set forth on the Service Proposal, MXR will supply all labor required for preventive and scheduled maintenance and remedial repairs on the Customer’s equipment as described in the Equipment Coverage Details. MXR will perform all maintenance services in accordance with the maintenance programs set forth in the applicable manufacturer’s service manuals. MXR may also replace all unserviceable parts with new or equivalent parts as specified by MXR on the initial inspection report described below; and as provided in this Agreement.
10. Initial Inspection (If Applicable): If equipment is new equipment to be serviced by MXR and not a renewal, within thirty (30) calendar days of the effective start date of this Agreement, MXR (or its authorized subcontractor) shall inspect each item of the Customer’s equipment and review all logs and documentation associated with it to determine its eligibility for service coverage hereunder. If MXR’s inspection reveals that an item of equipment is inoperable or in need of substantive repair, MXR will notify customer within ten (10) business days of the date of inspection and provide a written estimate of the cost of repair at MXR’s then-current list prices/rates for time and materials. Service requests made prior to the completion of the inspection that require part(s) replacement will be treated as a pre-existing condition and the part repair or replacement will be invoiced to the Customer. Equipment identified by MXR as requiring repair service but not authorized for repair or otherwise repairable by Customer will be removed from service support under this Agreement and deleted from the Equipment Coverage Detail until such repair is completed. If Customer does not permit MXR to conduct its inspection within the above thirty (30) calendar day period, or if any items of equipment are in storage, not in use or otherwise not available for inspection during the thirty (30) calendar day inspection period, Customer will be responsible for all repairs necessary to bring that item of equipment into safe operable condition before MXR will provide service coverage for it.
11. Parts and Replacements; Exclusions: 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. Installation of parts not supplied by MXR or its representative without prior written consent of MXR constitutes a material breach of this Agreement.
    Consumable items, accessories, networking hardware and software, printers and other peripherals are not covered under this Agreement. Parts that are deemed cosmetic or accessory in nature may be replaced at cost to the Customer.
12. Customer Provided Parts: If Equipment covered does not include parts replacement as specified in the Coverage Details section(s), or part(s) being replaced is not covered under the scope of the contract, customer may source their own parts with the following stipulations;
    1. 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.
    2. 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 rates listed in the Coverage Details
    3. 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 part(s) if purchased through MXR
13. CT Tube Usage Tracking (If Applicable): Customer agrees to allow MXR to review CT usage information during each preventative maintenance visit. This information will be input into MXR’s service/ticketing system. If any CT equipment covered on this contract is entitled to unlimited tube coverage it will be used to determine if customers usage of the CT is as agreed to in the Coverage Details section of the Equipment
14. Unlimited CT Tube Coverage (If Applicable): If tube coverage is unlimited as defined in the Coverage Details section(s) of this agreement, MXR will provide unlimited replacement tubes during the term if customer remains below the usage metric identified in the Coverage Details section of the equipment which will be one of the following; (i) Patient Count, (ii) mAs, (iii) Gantry Rotations, or (iv) Scan Seconds. If Customer exceeds the limit by 10% or more, Customer agrees to pay an overage fee indicated in the Coverage Details section, or renegotiate the remainder of the contract. If Customer is unwilling to pay the overage fee, the equipment in question will be changed from unlimited tube coverage to one tube replacement for the full contract term.
15. Increase in Cryogen Costs (If Applicable): Customer acknowledges the volatile nature of the market with regard to helium costs, and MXR’s lack of control of such costs. In the event that helium costs to MXR increase during the term of this Agreement or any renewals, MXR reserves the right, upon thirty (30) days written notice, to pass along the increase helium costs in the form of an increase in the Agreement charges
16. MXR Provided External Remote Monitoring Device (If Applicable): If the External Remote Monitoring Device (“ERMD”)is included as part of the Agreement, Customer agrees to and understands the following:
    1. MXR provides the ERMD free of charge to the Customer, however the ERMD remains the exclusive property of MXR at all times.
    2. Customer will be required to provide power and network connectivity including, but not limited to, an IP address and sufficient internet access. Should MXR require any additional work to ensure the ERMD’s complete functionality it will notify the Customer upon installation. The Customer will then be solely responsible for providing and ensuring any additional work be completed to ensure the ERMD’s complete functionality.
    3. Customer must allow the necessary network traffic through their firewall and VPN, if applicable, so the ERMD can communicate with MXR’s external service that receives and process information. If Customer cannot provide to the ERMD the required connectivity to communicate with MXR, MXR will provide a wireless hotspot which the customer will be billed $100 dollars per month on the billing invoice.
    4. Customer will notify MXR if they make changes that may affect the ERMD’s functionality and/or ability to communicate with MXR.
    5. The ERMD does not absolve or relieve the Customer of its sole responsibility to promptly report any known or suspected issues concerning the equipment and/or ERMD back to MXR.
    6. Pursuant to Section 26, MXR will not be liable for any damages and/or loss of revenue due to any problems identified or not identified by the ERMD
    7. Customer, or any other third-party who is permitted access to the MXR 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 Customer discovers that a third-party hindered or interfered with the ERMD services, or acted in such a manner as described in this Section (g) the Customer must immediately report such action to MXR.
    8. The ERMD does not have the ability to access any confidential patient information on the medical imaging equipment itself.
    9. The ERMD is the property of MXR, and will be returned by Customer upon termination of this Agreement. Customer will be invoiced for any replacement cost of the ERMD if it is not returned within thirty (30) days of termination of Agreement.
17. Uptime Guarantee for Services Only: If an Uptime Guarantee is referenced in the Equipment Coverage Details, MXR will guarantee the Equipment can be used for scanning patients for a defined percentage of the total coverage hours in a given year. For the purposes of calculating the uptime there will be two measurements, Base Time and Downtime. Base Time is defined as the total covered hours of the contract for a one (1) year term, so for example if the contracted hours of coverage are 8am to 5pm Monday through Friday there would be a total of 2,340 Base Time Hours (9 hours a day x 5 days a week x 52 weeks a year). Downtime is defined as the total number of hours the Equipment is unable to scan patients during covered hours excluded exceptions as referenced in this clause. For example if the contracted hours of coverage are 8am to 5pm Monday through Friday, MXR receives a call at 6:00am on Monday, and the system is available for scanning at 10:00am Monday there would be 2 hours of downtime as the two hours between 6:00am and 8:00am are not time covered under the contract. The formula for determining the uptime percentage will be (Base Time – Downtime)/Base Time.
    
    The following are reasons why downtime events would not be included in this calculation
    1. Scheduled Preventative Maintenance
    2. If MXR is prepared to perform maintenance services to make the Equipment operational but such service is refused by the Customer or is deferred by the Customer until a later time or date
    3. If the Equipment is not otherwise made available to MXRs’ service engineers
    4. If the Equipment is down is due to, associated with, or caused by misuse, negligence, or operator error
    5. Inadequate environmental conditions (not conforming with the environmental specifications outlined by the OEM), including temperature and humidity, line power exceeding OEM's requirements of voltage, frequency, impulses or transients
    6. Acts of God or other force majeure events
    
    If the equipment uptime level is found to be less than the guaranteed percentage over an annual period, as computed in accordance with the above guidelines, MXR will extend the term of this agreement by one week for each 1% point less than the contracted uptime (e.g., if contracted uptime is 96% and actual uptime is 93% MXR would extend the contract by 3 weeks)
18. Customer Responsibilities: In order for MXR to perform its duties and obligations under this Agreement (including warranty obligations), Customer agrees to:
    1. 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.
    2. 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.
    3. 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 under this Agreement. Customer shall notify MXR of any mobile equipment location(s) upon execution of this Agreement. Mobile equipment traveling more than fifty (50) miles from the original Customer location is excluded from the designated on-site response time and subject to additional travel charges.
    4. Promptly place service calls in accordance with any reasonable MXR protocols provided to Customer.
    5. Customer is responsible for reporting helium levels weekly back to MXR either by emailing CISHeliumReadings@mxrimaging.com or calling the main service number at 866-310-0071, Option 1.
    6. Establish and maintain security, virus protection, backup and disaster recovery plans for any data, images, software or equipment. This responsibility includes maintaining secure network and network security components, firewalls and security-related hardware or software, and preventing unauthorized access to the equipment.
    7. Promptly notify MXR in writing of any change in the Customer information specified in this Agreement, the location of the equipment or any change in Customer ownership or management control so that MXR may exercise its rights under the Assignment section. MXR will also notify Customer of any change in MXR ownership or management control so that Customer may exercise its rights under the Assignment section.
    8. Power and Grounding. Customer is responsible for ensuring satisfactory power quality and grounding per OEM specifications for all Equipment under this MXR Service Agreement.
    9. Customer is responsible for securing software license keys from the OEM as necessary to perform certain aspects of the services as outlined in the Agreement. If such keys are unavailable at the time of service and required to correct an issue, MXR cannot be held in breach or liable for its inability to correct the issue. Additionally, any downtime associated to an issue that requires unavailable license keys will not be counted towards any uptime guarantee if included in the Agreement.
    10. 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 with the afore mentioned code will be the sole responsibility of the Customer.
19. Consumable Items: Customer shall provide, at no charge to MXR, the necessary cleaning supplies required by MXR in the performance of the Services hereunder.
20. Taxes: 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.
21. Excusable Delays: Either party is excused from performing under this Agreement when the delay or failure to perform is caused by events or contingencies beyond a party’s reasonable control. Except for the Customer’s obligation to make payments to MXR, in the event that a delay occurs, the time for performance shall be extended as reasonably necessary to enable performance.
22. Exclusions: Unless otherwise specifically stated in the Equipment Coverage Details, MXR will not provide the following services or they will be quoted on a billable basis to Customer:
    1. The repair, replacement or disposal of any accessories, table and positioning pads, straps or consumable items including batteries for UPS systems.
    2. The repair, replacement of any MRI coil deemed by the repair facility as “not normal wear and tear” or “abuse”. This can include but not limited to; damage due to mishandling of the coil, cracked housing, patient fluid infiltration or other patient abuse.
    3. Any MRI repair service, including a system ramp/shim or any system parts including cryogens, compressed gases due to a system failure or quench outside of MXR control which includes power failures.
    4. Third party MRI coils are not covered (i.e Invivo wrist array, lower extremity, knee array, breast array, small extremity and 8 channel shoulder.)
    5. The repair, replacement of any ultrasound probe deemed by the repair facility as “not normal wear and tear” or “abuse”. This can include but not limited to: fluid infiltration due to tears in lends from improper cleaning, array or element damage due to mishandling of the probe.
    6. Glycol replacement is considered a consumable, and it is the responsibility of Customer to maintain glycol onsite. Any flush or refills needed due to inability to identify the glycol supply will be considered billable to Customer.
    7. The reimbursement of MXR expenditures for any non-contracted facility or rigging cost.
    8. Applications training or ongoing applications support.
    9. Any service or parts, including cryogens/compressed gasses, surge suppressor, power regulator devices or UPS systems, required as a result of anything external to the covered equipment, including building, van or trailer structural deficiency, power surge or power fluctuations, dust, sand or other particulate debris or environmental (air conditioning, water chiller, etc.) failure.
    10. If the Customer is notified or aware of a deficient part not covered under this Agreement and fails to take corrective action to mitigate damages to the covered equipment, the Customer assumes the responsibility for any parts and services provided by MXR covered under the Agreement.
    11. Service required due to equipment moves made by the Customer.
23. 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.
24. Independent Contractor: Nothing in this Agreement will be construed to designate MXR or any of its employees or MXR subcontractors or any of their employees as Customer’s employees or agents; except for the grant of limited agency above in the “Agent of Customer” Section above.
25. 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.
26. 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, 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.
    Indemnity: MXR shall indemnify and hold harmless Customer from losses and claims that are caused by the sole negligent acts or omissions of MXR.
27. Payment Terms: Invoices are payable in United States currency only to the address listed on MXR’s invoice. Unless otherwise expressly stated in the Service 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 under this or any 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.
    1. 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.
    2. 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.
    3. 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.
    4. If a third party is submitting payment to MXR on behalf of the Customer, MXR must be notified and that third party must be a signatory to this agreement;
28. Purchased Equipment and Parts: The following provisions shall apply only to the purchase of equipment or parts from MXR that are outside of the scope of a service agreement:
    1. Delivery: MXR reserves the right to make delivery in installments under a mutually agreed schedule. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delivery dates are approximate
    2. 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.
    3. 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 an 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.
    4. 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.
    5. 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.
    6. 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.
    7. 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.
29. 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.
30. Term: The term of this Agreement shall be for the period stated in the Service Proposal attached hereto. The term shall automatically renew for an additional period equal to the length of the original period unless either party gives the other a written notice, within sixty (60) business days of the end of the current term of its election to terminate the Agreement at the end of the then current term. MXR reserves the right to adjust pricing and/or rates under this Agreement to its then-current rates at the time of the renewal term.
31. Product Removal from Coverage: MXR will use commercially reasonable efforts to perform its obligations under this Agreement. In the event MXR determines it can no longer provide effective corrective maintenance or planned maintenance services for the item(s) included in this Agreement, MXR may remove the affected Product from coverage upon thirty (30) days’ prior written notice to the Customer, or upon mutual agreement with the Customer, MXR may elect to do one of the following: 1) to continue the Services and scheduled payment associated with this Agreement on a best effort basis, 2) reduce the level of coverage for the impacted equipment to a PM only level agreement, with the associated market pricing for altered coverage, or 3) remove from coverage the item impacted with no further obligation for the removed item other than Customer’s payment of all current outstanding invoices.
32. 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, 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
33. 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.
34. Termination for Cause: This Agreement may be terminated by the Customer with nintey (90) days written notice to MXR should: (a) the equipment covered be de-installed, sold or removed from service; or (b) the facility is shut down and the equipment covered is no longer being used on patients; or (c) the Customer becomes insolvent or the subject of a bankruptcy proceeding.
    In the event this Agreement is terminated prior to expiration for one of the 3 reasons listed above, MXR will recalculate all services (travel, labor, and parts) on a Time and Materials basis using the Travel and Labor rates listed on the Equipment Details page for the Equipment being removed, and Customer agrees to pay the difference between what Customer has paid to date for service on Equipment being removed vs. the calculated amount for what service would have been using the Times and Material rate calculated.
35. Termination Without Cause: In the event this agreement or portions of this agreement are terminated by Customer for a reason not listed in the Termination For Cause section , or if Customer is in breach of this contract as described in the Breach of Contract section, MXR will either;
    1. Invoice Customer for an amount equal to twenty percent (20%) of the remaining contract value for Equipment being removed
    2. Calculate all services (travel, labor, and parts) on a Time and Materials basis for the Equipment being removed and invoice customer the difference between what Customer has paid to date vs. the calculated amount for what service would have been using MXR’s then billable rates at the time of termination
    MXR will invoice Customer for whichever is the larger amount due to the Customer between these two options. Customer will have 30 days to remit payment

1. Agreement: The customer identified on the Service Proposal attached hereto (hereinafter referred to as “Customer”) has agreed to purchase, and MXR Imaging (hereinafter referred to as “MXR”) has agreed to provide, certain maintenance, repair, update and/or upgrade services (the “Services”) upon the terms and conditions set forth on the Service Proposal, the attached Equipment Coverage Details, and these Terms and Conditions (collectively, the “Agreement”). MXR and the Customer have caused this Agreement to be executed by their duly authorized officers or representatives, effective as of the later date of authorized signature hereon.
2. Order of Precedence: This Agreement comprises the entire agreement between the parties and supersedes all prior proposals, quotations, agreements, promises, or representations between the parties, whether verbal or written. The terms of this Agreement will prevail notwithstanding any variance with the terms of any present or future purchase or service order or request by the customer for services. In the event of any conflict between terms, the order of precedence shall be (a) the Service Proposal, (b) the Equipment Coverage Details, and (c) these Terms and Conditions. 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.
3. Additions and Deletions or System Upgrades from Service Coverage and Additional Services: Customer shall notify MXR in writing prior to (i) adding or deleting equipment, or (ii) upgrading existing system hardware or software to provide additional clinical functionality, or (iii) changing parts or other items to this Agreement after the initial inspection for service coverage described below.
   All additions, deletions or hardware/software upgrades outside the scope of this Agreement will be subject to new pricing, and will be quoted prior to being incorporated into this Agreement.
   For services requested by Customer outside of the Agreement, MXR may provide additional and separately-billed services such as: (i) instructions to Customer in the operation of the Equipment; (ii) the addition or removal of accessories, attachments, or other devices from the Equipment; (iii) the movement or relocation of the Equipment; (iv) resolution of problems or services caused by or necessitated by the unauthorized actions of Customer, third parties or external sources, including breach of warranties by the original manufacturer of the Equipment; (v) increase in service time necessitated by Customer’s operator error; (vi) repair due or damage from any cause other than ordinary use; and/or (vii) repair of damage or increase in service time caused by unauthorized alterations including, but not limited to, deviation from circuit or structural design of the equipment as provided by the original manufacturer(s) or MXR.
4. 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.
5. Amendment; Waiver; Survival: 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. The terms of this Agreement which by their nature are intended to survive its expiration (such as confidentiality provisions and Customer’s obligation to pay any amounts owed to MXR) will continue in full force and effect.
6. Assignment; Use of Subcontractors: 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.
7. Billable Service Calls: Service calls requested by Customer outside of this Agreement are billed by MXR at the then current regular and overtime rates for travel and on-site labor plus all applicable reasonable travel expenses. The customer will be provided a quotation for any equipment parts that need to be replaced. The customer authorizes MXR to perform and invoice for the service by scheduling the call. Billable service calls may be canceled by the customer with a minimum of twenty-four (24) hours written notice and the customer will have no liability whatsoever for timely cancellations.
8. Confidentiality: 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.
9. Coverage Terms for Service Support: For services set forth on the Service Proposal, MXR will supply all labor required for preventive and scheduled maintenance and remedial repairs on the Customer’s equipment as described in the Equipment Coverage Details. MXR will perform all maintenance services in accordance with the maintenance programs set forth in the applicable manufacturer’s service manuals. MXR may also replace all unserviceable parts with new or equivalent parts as specified by MXR on the initial inspection report described below; and as provided in this Agreement.
10. Initial Inspection (If Applicable): If equipment is new equipment to be serviced by MXR and not a renewal, within thirty (30) calendar days of the effective start date of this Agreement, MXR (or its authorized subcontractor) shall inspect each item of the Customer’s equipment and review all logs and documentation associated with it to determine its eligibility for service coverage hereunder. If MXR’s inspection reveals that an item of equipment is inoperable or in need of substantive repair, MXR will notify customer within ten (10) business days of the date of inspection and provide a written estimate of the cost of repair at MXR’s then-current list prices/rates for time and materials. Service requests made prior to the completion of the inspection that require part(s) replacement will be treated as a pre-existing condition and the part repair or replacement will be invoiced to the Customer. Equipment identified by MXR as requiring repair service but not authorized for repair or otherwise repairable by Customer will be removed from service support under this Agreement and deleted from the Equipment Coverage Detail until such repair is completed. If Customer does not permit MXR to conduct its inspection within the above thirty (30) calendar day period, or if any items of equipment are in storage, not in use or otherwise not available for inspection during the thirty (30) calendar day inspection period, Customer will be responsible for all repairs necessary to bring that item of equipment into safe operable condition before MXR will provide service coverage for it.
11. Parts and Replacements; Exclusions: 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. Installation of parts not supplied by MXR or its representative without prior written consent of MXR constitutes a material breach of this Agreement.
    Consumable items, accessories, networking hardware and software, printers and other peripherals are not covered under this Agreement. Parts that are deemed cosmetic or accessory in nature may be replaced at cost to the Customer.
12. Customer Provided Parts: If Equipment covered does not include parts replacement as specified in the Coverage Details section(s), or part(s) being replaced is not covered under the scope of the contract, customer may source their own parts with the following stipulations;
    1. 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.
    2. 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 rates listed in the Coverage Details
    3. 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 part(s) if purchased through MXR
13. CT Tube Usage Tracking (If Applicable): Customer agrees to allow MXR to review CT usage information during each preventative maintenance visit. This information will be input into MXR’s service/ticketing system. If any CT equipment covered on this contract is entitled to unlimited tube coverage it will be used to determine if customers usage of the CT is as agreed to in the Coverage Details section of the Equipment
14. Unlimited CT Tube Coverage (If Applicable): If tube coverage is unlimited as defined in the Coverage Details section(s) of this agreement, MXR will provide unlimited replacement tubes during the term if customer remains below the usage metric identified in the Coverage Details section of the equipment which will be one of the following; (i) Patient Count, (ii) mAs, (iii) Gantry Rotations, or (iv) Scan Seconds. If Customer exceeds the limit by 10% or more, Customer agrees to pay an overage fee indicated in the Coverage Details section, or renegotiate the remainder of the contract. If Customer is unwilling to pay the overage fee, the equipment in question will be changed from unlimited tube coverage to one tube replacement for the full contract term.
15. Increase in Cryogen Costs (If Applicable): Customer acknowledges the volatile nature of the market with regard to helium costs, and MXR’s lack of control of such costs. In the event that helium costs to MXR increase during the term of this Agreement or any renewals, MXR reserves the right, upon thirty (30) days written notice, to pass along the increase helium costs in the form of an increase in the Agreement charges
16. MXR Provided External Remote Monitoring Device (If Applicable): If the External Remote Monitoring Device (“ERMD”)is included as part of the Agreement, Customer agrees to and understands the following:
    1. MXR provides the ERMD free of charge to the Customer, however the ERMD remains the exclusive property of MXR at all times.
    2. Customer will be required to provide power and network connectivity including, but not limited to, an IP address and sufficient internet access. Should MXR require any additional work to ensure the ERMD’s complete functionality it will notify the Customer upon installation. The Customer will then be solely responsible for providing and ensuring any additional work be completed to ensure the ERMD’s complete functionality.
    3. Customer must allow the necessary network traffic through their firewall and VPN, if applicable, so the ERMD can communicate with MXR’s external service that receives and process information. If Customer cannot provide to the ERMD the required connectivity to communicate with MXR, MXR will provide a wireless hotspot which the customer will be billed $100 dollars per month on the billing invoice.
    4. Customer will notify MXR if they make changes that may affect the ERMD’s functionality and/or ability to communicate with MXR.
    5. The ERMD does not absolve or relieve the Customer of its sole responsibility to promptly report any known or suspected issues concerning the equipment and/or ERMD back to MXR.
    6. Pursuant to Section 26, MXR will not be liable for any damages and/or loss of revenue due to any problems identified or not identified by the ERMD
    7. Customer, or any other third-party who is permitted access to the MXR 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 Customer discovers that a third-party hindered or interfered with the ERMD services, or acted in such a manner as described in this Section (g) the Customer must immediately report such action to MXR.
    8. The ERMD does not have the ability to access any confidential patient information on the medical imaging equipment itself.
    9. The ERMD is the property of MXR, and will be returned by Customer upon termination of this Agreement. Customer will be invoiced for any replacement cost of the ERMD if it is not returned within thirty (30) days of termination of Agreement.
17. Uptime Guarantee for Services Only: If an Uptime Guarantee is referenced in the Equipment Coverage Details, MXR will guarantee the Equipment can be used for scanning patients for a defined percentage of the total coverage hours in a given year. For the purposes of calculating the uptime there will be two measurements, Base Time and Downtime. Base Time is defined as the total covered hours of the contract for a one (1) year term, so for example if the contracted hours of coverage are 8am to 5pm Monday through Friday there would be a total of 2,340 Base Time Hours (9 hours a day x 5 days a week x 52 weeks a year). Downtime is defined as the total number of hours the Equipment is unable to scan patients during covered hours excluded exceptions as referenced in this clause. For example if the contracted hours of coverage are 8am to 5pm Monday through Friday, MXR receives a call at 6:00am on Monday, and the system is available for scanning at 10:00am Monday there would be 2 hours of downtime as the two hours between 6:00am and 8:00am are not time covered under the contract. The formula for determining the uptime percentage will be (Base Time – Downtime)/Base Time.
    
    The following are reasons why downtime events would not be included in this calculation
    1. Scheduled Preventative Maintenance
    2. If MXR is prepared to perform maintenance services to make the Equipment operational but such service is refused by the Customer or is deferred by the Customer until a later time or date
    3. If the Equipment is not otherwise made available to MXRs’ service engineers
    4. If the Equipment is down is due to, associated with, or caused by misuse, negligence, or operator error
    5. Inadequate environmental conditions (not conforming with the environmental specifications outlined by the OEM), including temperature and humidity, line power exceeding OEM's requirements of voltage, frequency, impulses or transients
    6. Acts of God or other force majeure events
    
    If the equipment uptime level is found to be less than the guaranteed percentage over an annual period, as computed in accordance with the above guidelines, MXR will extend the term of this agreement by one week for each 1% point less than the contracted uptime (e.g., if contracted uptime is 96% and actual uptime is 93% MXR would extend the contract by 3 weeks)
18. Customer Responsibilities: In order for MXR to perform its duties and obligations under this Agreement (including warranty obligations), Customer agrees to:
    1. 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.
    2. 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.
    3. 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 under this Agreement. Customer shall notify MXR of any mobile equipment location(s) upon execution of this Agreement. Mobile equipment traveling more than fifty (50) miles from the original Customer location is excluded from the designated on-site response time and subject to additional travel charges.
    4. Promptly place service calls in accordance with any reasonable MXR protocols provided to Customer.
    5. Customer is responsible for reporting helium levels weekly back to MXR either by emailing CISHeliumReadings@mxrimaging.com or calling the main service number at 866-310-0071, Option 1.
    6. Establish and maintain security, virus protection, backup and disaster recovery plans for any data, images, software or equipment. This responsibility includes maintaining secure network and network security components, firewalls and security-related hardware or software, and preventing unauthorized access to the equipment.
    7. Promptly notify MXR in writing of any change in the Customer information specified in this Agreement, the location of the equipment or any change in Customer ownership or management control so that MXR may exercise its rights under the Assignment section. MXR will also notify Customer of any change in MXR ownership or management control so that Customer may exercise its rights under the Assignment section.
    8. Power and Grounding. Customer is responsible for ensuring satisfactory power quality and grounding per OEM specifications for all Equipment under this MXR Service Agreement.
    9. Customer is responsible for securing software license keys from the OEM as necessary to perform certain aspects of the services as outlined in the Agreement. If such keys are unavailable at the time of service and required to correct an issue, MXR cannot be held in breach or liable for its inability to correct the issue. Additionally, any downtime associated to an issue that requires unavailable license keys will not be counted towards any uptime guarantee if included in the Agreement.
    10. If Equipment being serviced emits X-Ray’s, and is in the state of Texas, Customer is responsible to stay in compliance with Texas Administrative Code §289.227 (o) (1). Any failure to maintain compliance with the afore mentioned code will be the sole responsibility of the Customer.
19. Consumable Items: Customer shall provide, at no charge to MXR, the necessary cleaning supplies required by MXR in the performance of the Services hereunder.
20. Taxes: 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.
21. Excusable Delays: Either party is excused from performing under this Agreement when the delay or failure to perform is caused by events or contingencies beyond a party’s reasonable control. Except for the Customer’s obligation to make payments to MXR, in the event that a delay occurs, the time for performance shall be extended as reasonably necessary to enable performance.
22. Exclusions: Unless otherwise specifically stated in the Equipment Coverage Details, MXR will not provide the following services or they will be quoted on a billable basis to Customer:
    1. The repair, replacement or disposal of any accessories, table and positioning pads, straps or consumable items including batteries for UPS systems.
    2. The repair, replacement of any MRI coil deemed by the repair facility as “not normal wear and tear” or “abuse”. This can include but not limited to; damage due to mishandling of the coil, cracked housing, patient fluid infiltration or other patient abuse.
    3. Any MRI repair service, including a system ramp/shim or any system parts including cryogens, compressed gases due to a system failure or quench outside of MXR control which includes power failures.
    4. Third party MRI coils are not covered (i.e Invivo wrist array, lower extremity, knee array, breast array, small extremity and 8 channel shoulder.)
    5. The repair, replacement of any ultrasound probe deemed by the repair facility as “not normal wear and tear” or “abuse”. This can include but not limited to: fluid infiltration due to tears in lends from improper cleaning, array or element damage due to mishandling of the probe.
    6. Glycol replacement is considered a consumable, and it is the responsibility of Customer to maintain glycol onsite. Any flush or refills needed due to inability to identify the glycol supply will be considered billable to Customer.
    7. The reimbursement of MXR expenditures for any non-contracted facility or rigging cost.
    8. Applications training or ongoing applications support.
    9. Any service or parts, including cryogens/compressed gasses, surge suppressor, power regulator devices or UPS systems, required as a result of anything external to the covered equipment, including building, van or trailer structural deficiency, power surge or power fluctuations, dust, sand or other particulate debris or environmental (air conditioning, water chiller, etc.) failure.
    10. If the Customer is notified or aware of a deficient part not covered under this Agreement and fails to take corrective action to mitigate damages to the covered equipment, the Customer assumes the responsibility for any parts and services provided by MXR covered under the Agreement.
    11. Service required due to equipment moves made by the Customer.
23. 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.
24. Independent Contractor: Nothing in this Agreement will be construed to designate MXR or any of its employees or MXR subcontractors or any of their employees as Customer’s employees or agents; except for the grant of limited agency above in the “Agent of Customer” Section above.
25. 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.
26. 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, 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.
    Indemnity: MXR shall indemnify and hold harmless Customer from losses and claims that are caused by the sole negligent acts or omissions of MXR.
27. Payment Terms: Invoices are payable in United States currency only to the address listed on MXR’s invoice. Unless otherwise expressly stated in the Service 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 under this or any 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.
    1. 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.
    2. 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.
    3. 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.
    4. If a third party is submitting payment to MXR on behalf of the Customer, MXR must be notified and that third party must be a signatory to this agreement;
28. Purchased Equipment and Parts: The following provisions shall apply only to the purchase of equipment or parts from MXR that are outside of the scope of a service agreement:
    1. Delivery: MXR reserves the right to make delivery in installments under a mutually agreed schedule. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delivery dates are approximate
    2. 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.
    3. 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 an 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.
    4. 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.
    5. 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.
    6. 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.
    7. 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.
29. 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.
30. Term: The term of this Agreement shall be for the period stated in the Service Proposal attached hereto. The term shall automatically renew for an additional period equal to the length of the original period unless either party gives the other a written notice, within sixty (60) business days of the end of the current term of its election to terminate the Agreement at the end of the then current term. MXR reserves the right to adjust pricing and/or rates under this Agreement to its then-current rates at the time of the renewal term.
31. Product Removal from Coverage: MXR will use commercially reasonable efforts to perform its obligations under this Agreement. In the event MXR determines it can no longer provide effective corrective maintenance or planned maintenance services for the item(s) included in this Agreement, MXR may remove the affected Product from coverage upon thirty (30) days’ prior written notice to the Customer, or upon mutual agreement with the Customer, MXR may elect to do one of the following: 1) to continue the Services and scheduled payment associated with this Agreement on a best effort basis, 2) reduce the level of coverage for the impacted equipment to a PM only level agreement, with the associated market pricing for altered coverage, or 3) remove from coverage the item impacted with no further obligation for the removed item other than Customer’s payment of all current outstanding invoices.
32. 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, 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
33. 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.
34. Termination for Cause: This Agreement may be terminated by the Customer with nintey (90) days written notice to MXR should: (a) the equipment covered be de-installed, sold or removed from service; or (b) the facility is shut down and the equipment covered is no longer being used on patients; or (c) the Customer becomes insolvent or the subject of a bankruptcy proceeding.
    In the event this Agreement is terminated prior to expiration for one of the 3 reasons listed above, MXR will recalculate all services (travel, labor, and parts) on a Time and Materials basis using the Travel and Labor rates listed on the Equipment Details page for the Equipment being removed, and Customer agrees to pay the difference between what Customer has paid to date for service on Equipment being removed vs. the calculated amount for what service would have been using the Times and Material rate calculated.
35. Termination Without Cause: In the event this agreement or portions of this agreement are terminated by Customer for a reason not listed in the Termination For Cause section , or if Customer is in breach of this contract as described in the Breach of Contract section, MXR will either;
    1. Invoice Customer for an amount equal to twenty percent (20%) of the remaining contract value for Equipment being removed
    2. Calculate all services (travel, labor, and parts) on a Time and Materials basis for the Equipment being removed and invoice customer the difference between what Customer has paid to date vs. the calculated amount for what service would have been using MXR’s then billable rates at the time of termination
    MXR will invoice Customer for whichever is the larger amount due to the Customer between these two options. Customer will have 30 days to remit payment

1. Agreement: The customer identified on the Service Proposal attached hereto (hereinafter referred to as “Customer”) has agreed to purchase, and MXR Imaging (f/k/a Merry X-Ray Chemical Corporation) (hereinafter referred to as “MXR”) has agreed to provide, certain maintenance, repair, update and/or upgrade services (the “Services”) upon the terms and conditions set forth on the Service Proposal, the attached Equipment Coverage Details, and these Terms and Conditions (collectively, the “Agreement”). MXR and the Customer have caused this Agreement to be executed by their duly authorized officers or representatives, effective as of the later date of authorized signature hereon.
2. Order of Precedence: This Agreement comprises the entire agreement between the parties and supersedes all prior proposals, quotations, agreements, promises, or representations between the parties, whether verbal or written. The terms of this Agreement will prevail notwithstanding any variance with the terms of any present or future purchase or service order or request by the customer for services. In the event of any conflict between terms, the order of precedence shall be (a) the Service Proposal, (b) the Equipment Coverage Details, and (c) these Terms and Conditions. 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.
3. Additions and Deletions or System Upgrades from Service Coverage and Additional Services: Customer shall notify MXR in writing prior to (i) adding or deleting equipment, or (ii) upgrading existing system hardware or software to provide additional clinical functionality, or (iii) changing parts or other items to this Agreement after the initial inspection for service coverage described below.
   All additions, deletions or hardware/software upgrades outside the scope of this Agreement will be subject to new pricing, and will be quoted prior to being incorporated into this Agreement.
   For services requested by Customer outside of the Agreement, MXR may provide additional and separately-billed services such as: (i) instructions to Customer in the operation of the Equipment; (ii) the addition or removal of accessories, attachments, or other devices from the Equipment; (iii) the movement or relocation of the Equipment; (iv) resolution of problems or services caused by or necessitated by the unauthorized actions of Customer, third parties or external sources, including breach of warranties by the original manufacturer of the Equipment; (v) increase in service time necessitated by Customer’s operator error; (vi) repair due or damage from any cause other than ordinary use; and/or (vii) repair of damage or increase in service time caused by unauthorized alterations including, but not limited to, deviation from circuit or structural design of the equipment as provided by the original manufacturer(s) or MXR.
4. 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.
5. Amendment; Waiver; Survival: 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. The terms of this Agreement which by their nature are intended to survive its expiration (such as confidentiality provisions and Customer’s obligation to pay any amounts owed to MXR) will continue in full force and effect.
6. Assignment; Use of Subcontractors: 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.
7. Billable Service Calls: Service calls requested by Customer outside of this Agreement are billed by MXR at the then current regular and overtime rates for travel and on-site labor plus all applicable reasonable travel expenses. The customer will be provided a quotation for any equipment parts that need to be replaced. The customer authorizes MXR to perform and invoice for the service by scheduling the call. Billable service calls may be canceled by the customer with a minimum of twenty-four (24) hours written notice and the customer will have no liability whatsoever for timely cancellations.
8. Confidentiality: 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.
9. Coverage Terms for Service Support: For services set forth on the Service Proposal, MXR will supply all labor required for preventive and scheduled maintenance and remedial repairs on the Customer’s equipment as described in the Equipment Coverage Details. MXR will perform all maintenance services in accordance with the maintenance programs set forth in the applicable manufacturer’s service manuals. MXR may also replace all unserviceable parts with new or equivalent parts as specified by MXR on the initial inspection report described below; and as provided in this Agreement.
10. Initial Inspection (If Applicable): If equipment is new equipment to be serviced by MXR and not a renewal, within thirty (30) calendar days of the effective start date of this Agreement, MXR (or its authorized subcontractor) shall inspect each item of the Customer’s equipment and review all logs and documentation associated with it to determine its eligibility for service coverage hereunder. If MXR’s inspection reveals that an item of equipment is inoperable or in need of substantive repair, MXR will notify customer within ten (10) business days of the date of inspection and provide a written estimate of the cost of repair at MXR’s then-current list prices/rates for time and materials. Service requests made prior to the completion of the inspection that require part(s) replacement will be treated as a pre-existing condition and the part repair or replacement will be invoiced to the Customer. Equipment identified by MXR as requiring repair service but not authorized for repair or otherwise repairable by Customer will be removed from service support under this Agreement and deleted from the Equipment Coverage Detail until such repair is completed. If Customer does not permit MXR to conduct its inspection within the above thirty (30) calendar day period, or if any items of equipment are in storage, not in use or otherwise not available for inspection during the thirty (30) calendar day inspection period, Customer will be responsible for all repairs necessary to bring that item of equipment into safe operable condition before MXR will provide service coverage for it.
11. Parts and Replacements; Exclusions: 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. Installation of parts not supplied by MXR or its representative without prior written consent of MXR constitutes a material breach of this Agreement.
    Consumable items, accessories, networking hardware and software, printers and other peripherals are not covered under this Agreement. Parts that are deemed cosmetic or accessory in nature may be replaced at cost to the Customer.
12. Customer Provided Parts: If Equipment covered does not include parts replacement as specified in the Coverage Details section(s), or part(s) being replaced is not covered under the scope of the contract, customer may source their own parts with the following stipulations;
    1. 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.
    2. 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 rates listed in the Coverage Details
    3. 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 part(s) if purchased through MXR
13. CT Tube Usage Tracking (If Applicable): Customer agrees to allow MXR to review CT usage information during each preventative maintenance visit. This information will be input into MXR’s service/ticketing system. If any CT equipment covered on this contract is entitled to unlimited tube coverage it will be used to determine if customers usage of the CT is as agreed to in the Coverage Details section of the Equipment
14. Unlimited CT Tube Coverage (If Applicable): If tube coverage is unlimited as defined in the Coverage Details section(s) of this agreement, MXR will provide unlimited replacement tubes during the term if customer remains below the usage metric identified in the Coverage Details section of the equipment which will be one of the following; (i) Patient Count, (ii) mAs, (iii) Gantry Rotations, or (iv) Scan Seconds. If Customer exceeds the limit by 10% or more, Customer agrees to pay an overage fee indicated in the Coverage Details section, or renegotiate the remainder of the contract. If Customer is unwilling to pay the overage fee, the equipment in question will be changed from unlimited tube coverage to one tube replacement for the full contract term.
15. Increase in Cryogen Costs (If Applicable): Customer acknowledges the volatile nature of the market with regard to helium costs, and MXR’s lack of control of such costs. In the event that helium costs to MXR increase during the term of this Agreement or any renewals, MXR reserves the right, upon thirty (30) days written notice, to pass along the increase helium costs in the form of an increase in the Agreement charges
16. Uptime Guarantee for Services Only: If an Uptime Guarantee is referenced in the Equipment Coverage Details, MXR will guarantee the Equipment can be used for scanning patients for a defined percentage of the total coverage hours in a given year. For the purposes of calculating the uptime there will be two measurements, Base Time and Downtime. Base Time is defined as the total covered hours of the contract for a one (1) year term, so for example if the contracted hours of coverage are 8am to 5pm Monday through Friday there would be a total of 2,340 Base Time Hours (9 hours a day x 5 days a week x 52 weeks a year). Downtime is defined as the total number of hours the Equipment is unable to scan patients during covered hours excluded exceptions as referenced in this clause. For example if the contracted hours of coverage are 8am to 5pm Monday through Friday, MXR receives a call at 6:00am on Monday, and the system is available for scanning at 10:00am Monday there would be 2 hours of downtime as the two hours between 6:00am and 8:00am are not time covered under the contract. The formula for determining the uptime percentage will be (Base Time – Downtime)/Base Time.
    
    The following are reasons why downtime events would not be included in this calculation
    1. Scheduled Preventative Maintenance
    2. If MXR is prepared to perform maintenance services to make the Equipment operational but such service is refused by the Customer or is deferred by the Customer until a later time or date
    3. If the Equipment is not otherwise made available to MXRs’ service engineers
    4. If the Equipment is down is due to, associated with, or caused by misuse, negligence, or operator error
    5. Inadequate environmental conditions (not conforming with the environmental specifications outlined by the OEM), including temperature and humidity, line power exceeding OEM's requirements of voltage, frequency, impulses or transients
    6. Acts of God or other force majeure events
    
    If the equipment uptime level is found to be less than the guaranteed percentage over an annual period, as computed in accordance with the above guidelines, MXR will extend the term of this agreement by one week for each 1% point less than the contracted uptime (e.g., if contracted uptime is 96% and actual uptime is 93% MXR would extend the contract by 3 weeks)
17. Customer Responsibilities: In order for MXR to perform its duties and obligations under this Agreement (including warranty obligations), Customer agrees to:
    1. 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.
    2. 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.
    3. 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 under this Agreement. Customer shall notify MXR of any mobile equipment location(s) upon execution of this Agreement. Mobile equipment traveling more than fifty (50) miles from the original Customer location is excluded from the designated on-site response time and subject to additional travel charges.
    4. Promptly place service calls in accordance with any reasonable MXR protocols provided to Customer.
    5. Customer is responsible for reporting helium levels weekly back to MXR either by emailing CISHeliumReadings@mxrimaging.com or calling the main service number at 866-310-0071, Option 1.
    6. Establish and maintain security, virus protection, backup and disaster recovery plans for any data, images, software or equipment. This responsibility includes maintaining secure network and network security components, firewalls and security-related hardware or software, and preventing unauthorized access to the equipment.
    7. Promptly notify MXR in writing of any change in the Customer information specified in this Agreement, the location of the equipment or any change in Customer ownership or management control so that MXR may exercise its rights under the Assignment section. MXR will also notify Customer of any change in MXR ownership or management control so that Customer may exercise its rights under the Assignment section.
    8. Power and Grounding. Customer is responsible for ensuring satisfactory power quality and grounding per OEM specifications for all Equipment under this MXR Service Agreement.
    9. Customer is responsible for securing software license keys from the OEM as necessary to perform certain aspects of the services as outlined in the Agreement. If such keys are unavailable at the time of service and required to correct an issue, MXR cannot be held in breach or liable for its inability to correct the issue. Additionally, any downtime associated to an issue that requires unavailable license keys will not be counted towards any uptime guarantee if included in the Agreement.
    10. If Equipment being serviced emits X-Ray’s, and is in the state of Texas, Customer is responsible to stay in compliance with Texas Administrative Code §289.227 (o) (1). Any failure to maintain compliance with the afore mentioned code will be the sole responsibility of the Customer.
18. Consumable Items: Customer shall provide, at no charge to MXR, the necessary cleaning supplies required by MXR in the performance of the Services hereunder.
19. Taxes: 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.
20. Excusable Delays: Either party is excused from performing under this Agreement when the delay or failure to perform is caused by events or contingencies beyond a party’s reasonable control. Except for the Customer’s obligation to make payments to MXR, in the event that a delay occurs, the time for performance shall be extended as reasonably necessary to enable performance.
21. Exclusions: Unless otherwise specifically stated in the Equipment Coverage Details, MXR will not provide the following services or they will be quoted on a billable basis to Customer:
    1. The repair, replacement or disposal of any accessories, table and positioning pads, straps or consumable items including batteries for UPS systems.
    2. The repair, replacement of any MRI coil deemed by the repair facility as “not normal wear and tear” or “abuse”. This can include but not limited to; damage due to mishandling of the coil, cracked housing, patient fluid infiltration or other patient abuse.
    3. Any MRI repair service, including a system ramp/shim or any system parts including cryogens, compressed gases due to a system failure or quench outside of MXR control which includes power failures.
    4. Third party MRI coils are not covered (i.e Invivo wrist array, lower extremity, knee array, breast array, small extremity and 8 channel shoulder.)
    5. The repair, replacement of any ultrasound probe deemed by the repair facility as “not normal wear and tear” or “abuse”. This can include but not limited to: fluid infiltration due to tears in lends from improper cleaning, array or element damage due to mishandling of the probe.
    6. Glycol replacement is considered a consumable, and it is the responsibility of Customer to maintain glycol onsite. Any flush or refills needed due to inability to identify the glycol supply will be considered billable to Customer.
    7. The reimbursement of MXR expenditures for any non-contracted facility or rigging cost.
    8. Applications training or ongoing applications support.
    9. Any service or parts, including cryogens/compressed gasses, surge suppressor, power regulator devices or UPS systems, required as a result of anything external to the covered equipment, including building, van or trailer structural deficiency, power surge or power fluctuations, dust, sand or other particulate debris or environmental (air conditioning, water chiller, etc.) failure.
    10. If the Customer is notified or aware of a deficient part not covered under this Agreement and fails to take corrective action to mitigate damages to the covered equipment, the Customer assumes the responsibility for any parts and services provided by MXR covered under the Agreement.
    11. Service required due to equipment moves made by the Customer.
22. 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.
23. Independent Contractor: Nothing in this Agreement will be construed to designate MXR or any of its employees or MXR subcontractors or any of their employees as Customer’s employees or agents; except for the grant of limited agency above in the “Agent of Customer” Section above.
24. 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.
25. 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, 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.
    Indemnity: MXR shall indemnify and hold harmless Customer from losses and claims that are caused by the sole negligent acts or omissions of MXR.
26. Payment Terms: Invoices are payable in United States currency only to the address listed on MXR’s invoice. Unless otherwise expressly stated in the Service 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 under this or any 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.
    1. 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.
    2. 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.
    3. 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.
27. Purchased Equipment and Parts: The following provisions shall apply only to the purchase of equipment or parts from MXR that are outside of the scope of a service agreement:
    1. Delivery: MXR reserves the right to make delivery in installments under a mutually agreed schedule. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delivery dates are approximate
    2. 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.
    3. 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 an 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.
    4. 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.
    5. 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.
    6. 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.
    7. 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.
28. 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.
29. Term: The term of this Agreement shall be for the period stated in the Service Proposal attached hereto. The term shall automatically renew for an additional period equal to the length of the original period unless either party gives the other a written notice, within sixty (60) business days of the end of the current term of its election to terminate the Agreement at the end of the then current term. MXR reserves the right to adjust pricing and/or rates under this Agreement to its then-current rates at the time of the renewal term.
30. Product Removal from Coverage: MXR will use commercially reasonable efforts to perform its obligations under this Agreement. In the event MXR determines it can no longer provide effective corrective maintenance or planned maintenance services for the item(s) included in this Agreement, MXR may remove the affected Product from coverage upon thirty (30) days’ prior written notice to the Customer, or upon mutual agreement with the Customer, MXR may elect to do one of the following: 1) to continue the Services and scheduled payment associated with this Agreement on a best effort basis, 2) reduce the level of coverage for the impacted equipment to a PM only level agreement, with the associated market pricing for altered coverage, or 3) remove from coverage the item impacted with no further obligation for the removed item other than Customer’s payment of all current outstanding invoices.
31. 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, 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
32. 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.
33. Termination for Cause: This Agreement may be terminated by the Customer with thirty (30) days written notice to MXR should: (a) the equipment covered be de-installed, sold or removed from service; or (b) the facility is shut down and the equipment covered is no longer being used on patients; or (c) the Customer becomes insolvent or the subject of a bankruptcy proceeding.
    In the event this Agreement is terminated prior to expiration for one of the 3 reasons listed above, MXR will recalculate all services (travel, labor, and parts) on a Time and Materials basis using the Travel and Labor rates listed on the Equipment Details page for the Equipment being removed, and Customer agrees to pay the difference between what Customer has paid to date for service on Equipment being removed vs. the calculated amount for what service would have been using the Times and Material rate calculated.
34. Termination Without Cause: In the event this agreement or portions of this agreement are terminated by Customer for a reason not listed in the Termination For Cause section , or if Customer is in breach of this contract as described in the Breach of Contract section, MXR will either;
    1. Invoice Customer for an amount equal to twenty percent (20%) of the remaining contract value for Equipment being removed
    2. Calculate all services (travel, labor, and parts) on a Time and Materials basis for the Equipment being removed and invoice customer the difference between what Customer has paid to date vs. the calculated amount for what service would have been using MXR’s then billable rates at the time of termination
    MXR will invoice Customer for whichever is the larger amount due to the Customer between these two options. Customer will have 30 days to remit payment

1. Agreement: The customer identified on the Service Proposal attached hereto (hereinafter referred to as “Customer”) has agreed to purchase, and MXR Imaging (f/k/a Merry X-Ray Chemical Corporation) (hereinafter referred to as “MXR”) has agreed to provide, certain maintenance, repair, update and/or upgrade services (the “Services”) upon the terms and conditions set forth on the Service Proposal, the attached Equipment Coverage Details, and these Terms and Conditions (collectively, the “Agreement”). MXR and the Customer have caused this Agreement to be executed by their duly authorized officers or representatives, effective as of the later date of authorized signature hereon.
2. Order of Precedence: This Agreement comprises the entire agreement between the parties and supersedes all prior proposals, quotations, agreements, promises, or representations between the parties, whether verbal or written. The terms of this Agreement will prevail notwithstanding any variance with the terms of any present or future purchase or service order or request by the customer for services. In the event of any conflict between terms, the order of precedence shall be (a) the Service Proposal, (b) the Equipment Coverage Details, and (c) these Terms and Conditions. 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.
3. Additions and Deletions or System Upgrades from Service Coverage and Additional Services: Customer shall notify MXR in writing prior to (i) adding or deleting equipment, or (ii) upgrading existing system hardware or software to provide additional clinical functionality, or (iii) changing parts or other items to this Agreement after the initial inspection for service coverage described below.
   All additions, deletions or hardware/software upgrades outside the scope of this Agreement will be subject to new pricing, and will be quoted prior to being incorporated into this Agreement.
   For services requested by Customer outside of the Agreement, MXR may provide additional and separately-billed services such as: (i) instructions to Customer in the operation of the Equipment; (ii) the addition or removal of accessories, attachments, or other devices from the Equipment; (iii) the movement or relocation of the Equipment; (iv) resolution of problems or services caused by or necessitated by the unauthorized actions of Customer, third parties or external sources, including breach of warranties by the original manufacturer of the Equipment; (v) increase in service time necessitated by Customer’s operator error; (vi) repair due or damage from any cause other than ordinary use; and/or (vii) repair of damage or increase in service time caused by unauthorized alterations including, but not limited to, deviation from circuit or structural design of the equipment as provided by the original manufacturer(s) or MXR.
4. 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.
5. Amendment; Waiver; Survival: 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. The terms of this Agreement which by their nature are intended to survive its expiration (such as confidentiality provisions and Customer’s obligation to pay any amounts owed to MXR) will continue in full force and effect.
6. Assignment; Use of Subcontractors: 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.
7. Billable Service Calls: Service calls requested by Customer outside of this Agreement are billed by MXR at the then current regular and overtime rates for travel and on-site labor plus all applicable reasonable travel expenses. The customer will be provided a quotation for any equipment parts that need to be replaced. The customer authorizes MXR to perform and invoice for the service by scheduling the call. Billable service calls may be canceled by the customer with a minimum of twenty-four (24) hours written notice and the customer will have no liability whatsoever for timely cancellations.
8. Confidentiality: 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.
9. Coverage Terms for Service Support: For services set forth on the Service Proposal, MXR will supply all labor required for preventive and scheduled maintenance and remedial repairs on the Customer’s equipment as described in the Equipment Coverage Details. MXR will perform all maintenance services in accordance with the maintenance programs set forth in the applicable manufacturer’s service manuals. MXR may also replace all unserviceable parts with new or equivalent parts as specified by MXR on the initial inspection report described below; and as provided in this Agreement.
10. Initial Inspection (If Applicable): If equipment is new equipment to be serviced by MXR and not a renewal, within thirty (30) calendar days of the effective start date of this Agreement, MXR (or its authorized subcontractor) shall inspect each item of the Customer’s equipment and review all logs and documentation associated with it to determine its eligibility for service coverage hereunder. If MXR’s inspection reveals that an item of equipment is inoperable or in need of substantive repair, MXR will notify customer within ten (10) business days of the date of inspection and provide a written estimate of the cost of repair at MXR’s then-current list prices/rates for time and materials. Service requests made prior to the completion of the inspection that require part(s) replacement will be treated as a pre-existing condition and the part repair or replacement will be invoiced to the Customer. Equipment identified by MXR as requiring repair service but not authorized for repair or otherwise repairable by Customer will be removed from service support under this Agreement and deleted from the Equipment Coverage Detail until such repair is completed. If Customer does not permit MXR to conduct its inspection within the above thirty (30) calendar day period, or if any items of equipment are in storage, not in use or otherwise not available for inspection during the thirty (30) calendar day inspection period, Customer will be responsible for all repairs necessary to bring that item of equipment into safe operable condition before MXR will provide service coverage for it.
11. Parts and Replacements; Exclusions: 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. Installation of parts not supplied by MXR or its representative without prior written consent of MXR constitutes a material breach of this Agreement.
    Consumable items, accessories, networking hardware and software, printers and other peripherals are not covered under this Agreement. Parts that are deemed cosmetic or accessory in nature may be replaced at cost to the Customer.
12. Customer Provided Parts: If Equipment covered does not include parts replacement as specified in the Coverage Details section(s), or part(s) being replaced is not covered under the scope of the contract, customer may source their own parts with the following stipulations;
    1. 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.
    2. 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 rates listed in the Coverage Details
    3. 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 part(s) if purchased through MXR
13. CT Tube Usage Tracking (If Applicable): Customer agrees to allow MXR to review CT usage information during each preventative maintenance visit. This information will be input into MXR’s service/ticketing system. If any CT equipment covered on this contract is entitled to unlimited tube coverage it will be used to determine if customers usage of the CT is as agreed to in the Coverage Details section of the Equipment
14. Unlimited CT Tube Coverage (If Applicable): If tube coverage is unlimited as defined in the Coverage Details section(s) of this agreement, MXR will provide unlimited replacement tubes during the term if customer remains below the usage metric identified in the Coverage Details section of the equipment which will be one of the following; (i) Patient Count, (ii) mAs, (iii) Gantry Rotations, or (iv) Scan Seconds. If Customer exceeds the limit by 10% or more, Customer agrees to pay an overage fee indicated in the Coverage Details section, or renegotiate the remainder of the contract. If Customer is unwilling to pay the overage fee, the equipment in question will be changed from unlimited tube coverage to one tube replacement for the full contract term.
15. Uptime Guarantee for Services Only: If an Uptime Guarantee is referenced in the Equipment Coverage Details, MXR will guarantee the Equipment can be used for scanning patients for a defined percentage of the total coverage hours in a given year. For the purposes of calculating the uptime there will be two measurements, Base Time and Downtime. Base Time is defined as the total covered hours of the contract for a one (1) year term, so for example if the contracted hours of coverage are 8am to 5pm Monday through Friday there would be a total of 2,340 Base Time Hours (9 hours a day x 5 days a week x 52 weeks a year). Downtime is defined as the total number of hours the Equipment is unable to scan patients during covered hours excluded exceptions as referenced in this clause. For example if the contracted hours of coverage are 8am to 5pm Monday through Friday, MXR receives a call at 6:00am on Monday, and the system is available for scanning at 10:00am Monday there would be 2 hours of downtime as the two hours between 6:00am and 8:00am are not time covered under the contract. The formula for determining the uptime percentage will be (Base Time – Downtime)/Base Time.
    
    The following are reasons why downtime events would not be included in this calculation
    1. Scheduled Preventative Maintenance
    2. If MXR is prepared to perform maintenance services to make the Equipment operational but such service is refused by the Customer or is deferred by the Customer until a later time or date
    3. If the Equipment is not otherwise made available to MXRs’ service engineers
    4. If the Equipment is down is due to, associated with, or caused by misuse, negligence, or operator error
    5. Inadequate environmental conditions (not conforming with the environmental specifications outlined by the OEM), including temperature and humidity, line power exceeding OEM's requirements of voltage, frequency, impulses or transients
    6. Acts of God or other force majeure events
    
    If the equipment uptime level is found to be less than the guaranteed percentage over an annual period, as computed in accordance with the above guidelines, MXR will extend the term of this agreement by one week for each 1% point less than the contracted uptime (e.g., if contracted uptime is 96% and actual uptime is 93% MXR would extend the contract by 3 weeks)
16. Customer Responsibilities: In order for MXR to perform its duties and obligations under this Agreement (including warranty obligations), Customer agrees to:
    1. 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.
    2. 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.
    3. 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 under this Agreement. Customer shall notify MXR of any mobile equipment location(s) upon execution of this Agreement. Mobile equipment traveling more than fifty (50) miles from the original Customer location is excluded from the designated on-site response time and subject to additional travel charges.
    4. Promptly place service calls in accordance with any reasonable MXR protocols provided to Customer.
    5. Customer is responsible for reporting helium levels weekly back to MXR either by emailing CISHeliumReadings@mxrimaging.com or calling the main service number at 866-310-0071, Option 1.
    6. Establish and maintain security, virus protection, backup and disaster recovery plans for any data, images, software or equipment. This responsibility includes maintaining secure network and network security components, firewalls and security-related hardware or software, and preventing unauthorized access to the equipment.
    7. Promptly notify MXR in writing of any change in the Customer information specified in this Agreement, the location of the equipment or any change in Customer ownership or management control so that MXR may exercise its rights under the Assignment section. MXR will also notify Customer of any change in MXR ownership or management control so that Customer may exercise its rights under the Assignment section.
    8. Power and Grounding. Customer is responsible for ensuring satisfactory power quality and grounding per OEM specifications for all Equipment under this MXR Service Agreement.
    9. Customer is responsible for securing software license keys from the OEM as necessary to perform certain aspects of the services as outlined in the Agreement. If such keys are unavailable at the time of service and required to correct an issue, MXR cannot be held in breach or liable for its inability to correct the issue. Additionally, any downtime associated to an issue that requires unavailable license keys will not be counted towards any uptime guarantee if included in the Agreement.
    10. If Equipment being serviced emits X-Ray’s, and is in the state of Texas, Customer is responsible to stay in compliance with Texas Administrative Code §289.227 (o) (1). Any failure to maintain compliance with the afore mentioned code will be the sole responsibility of the Customer.
17. Cleaning Supplies: Customer shall provide, at no charge to MXR, the necessary cleaning supplies required by MXR in the performance of the Services hereunder.
18. Taxes: 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.
19. Exclusions: Unless otherwise specifically stated in the Equipment Coverage Details, MXR will not provide the following services or they will be quoted on a billable basis to Customer:
    1. The repair, replacement or disposal of any accessories, table and positioning pads, straps or consumable items including batteries for UPS systems.
    2. The repair, replacement of any MRI coil deemed by the repair facility as “not normal wear and tear” or “abuse”. This can include but not limited to; damage due to mishandling of the coil, cracked housing, patient fluid infiltration or other patient abuse.
    3. Any MRI repair service, including a system ramp/shim or any system parts including cryogens, compressed gases due to a system failure or quench outside of MXR control which includes power failures.
    4. Third party MRI coils are not covered (i.e Invivo wrist array, lower extremity, knee array, breast array, small extremity and 8 channel shoulder.)
    5. The repair, replacement of any ultrasound probe deemed by the repair facility as “not normal wear and tear” or “abuse”. This can include but not limited to: fluid infiltration due to tears in lends from improper cleaning, array or element damage due to mishandling of the probe.
    6. Glycol replacement is considered a consumable, and it is the responsibility of Customer to maintain glycol onsite. Any flush or refills needed due to inability to identify the glycol supply will be considered billable to Customer.
    7. The reimbursement of MXR expenditures for any non-contracted facility or rigging cost.
    8. Applications training or ongoing applications support.
    9. Any service or parts, including cryogens/compressed gasses, surge suppressor, power regulator devices or UPS systems, required as a result of anything external to the covered equipment, including building, van or trailer structural deficiency, power surge or power fluctuations, dust, sand or other particulate debris or environmental (air conditioning, water chiller, etc.) failure.
    10. If the Customer is notified or aware of a deficient part not covered under this Agreement and fails to take corrective action to mitigate damages to the covered equipment, the Customer assumes the responsibility for any parts and services provided by MXR covered under the Agreement.
    11. Service required due to equipment moves made by the Customer.
20. 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.
21. Independent Contractor: MXR is an independent contractor. MXR employees are under MXR’s exclusive direction and control. MXR subcontractors’ employees are under MXR’s subcontractors’ exclusive direction and control. Nothing in this Agreement will be construed to designate MXR or any of its employees or MXR subcontractors or any of their employees as Customer’s employees or agents; except for the grant of limited agency above in the “Agent of Customer” Section above.
22. 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.
23. Limited Warranties: MXR warrants that the Services will be performed by qualified employees or subcontractors in a professional and workmanlike manner. 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, 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.
    Indemnity: MXR shall indemnify and hold harmless Customer from losses and claims that are caused by the sole negligent acts or omissions of MXR.
24. Payment Terms: Invoices are payable in United States currency only to the address listed on MXR’s invoice. Unless otherwise expressly stated in the Service 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 under this or any 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.
    1. 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.
    2. 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.
25. Purchased Equipment and Parts: The following provisions shall apply only to the purchase of equipment or parts from MXR that are outside of the scope of a service agreement:
    1. Delivery: MXR reserves the right to make delivery in installments under a mutually agreed schedule. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delivery dates are approximate
    2. 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.
    3. 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.
    4. 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.
    5. 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.
    6. 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.
    7. 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.
26. 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.
27. Term: The term of this Agreement shall be for the period stated in the Service Proposal above. The term shall automatically renew for an additional period equal to the length of the original period unless either party gives the other a written notice, within sixty (60) business days of the end of the current term of its election to terminate the Agreement at the end of the then current term. MXR reserves the right to adjust pricing and/or rates under this Agreement to its then-current rates at the time of the renewal term.
28. Product Removal from Coverage: MXR will use commercially reasonable efforts to perform its obligations under this Agreement. In the event MXR determines it can no longer provide effective corrective maintenance or planned maintenance services for the item(s) included in this Agreement, MXR may remove the affected Product from coverage upon thirty (30) days’ prior written notice to the Customer, or upon mutual agreement with the Customer, MXR may elect to do one of the following: 1) to continue the Services and scheduled payment associated with this Agreement on a best effort basis, 2) reduce the level of coverage for the impacted equipment to a PM only level agreement, with the associated market pricing for altered coverage, or 3) remove from coverage the item impacted with no further obligation for the removed item other than Customer’s payment of all current outstanding invoices.
29. 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, 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
30. 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.
31. Termination For Cause: This Agreement may be terminated by the Customer with thirty (30) days written notice to MXR should: (a) the equipment covered be de-installed, sold or removed from service; or (b) the facility is shut down and the equipment covered is no longer being used on patients; or (c) the Customer becomes insolvent or the subject of a bankruptcy proceeding.
    In the event this Agreement is terminated prior to expiration for one of the 3 reasons listed above, MXR will recalculate all services (travel, labor, and parts) on a Time and Materials basis using the Travel and Labor rates listed on the Equipment Details page for the Equipment being removed, and Customer agrees to pay the difference between what Customer has paid to date for service on Equipment being removed vs. the calculated amount for what service would have been using the Times and Material rate calculated.
32. Termination Without Cause: In the event this agreement or portions of this agreement are terminated by Customer for a reason not listed in the Termination For Cause section , or if Customer is in breach of this contract as described in the Breach of Contract section, MXR will either;
    1. Invoice Customer for an amount equal to twenty percent (20%) of the remaining contract value for Equipment being removed
    2. Calculate all services (travel, labor, and parts) on a Time and Materials basis for the Equipment being removed and invoice customer the difference between what Customer has paid to date vs. the calculated amount for what service would have been using MXR’s then billable rates at the time of termination
    MXR will invoice Customer for whichever is the larger amount due to the Customer between these two options. Customer will have 30 days to remit payment

1. Agreement: The customer identified on the Service Proposal attached hereto (hereinafter referred to as “Customer”) has agreed to purchase, and MXR Imaging (f/k/a Merry X-Ray Chemical Corporation) (hereinafter referred to as “MXR”) has agreed to provide, certain maintenance, repair, update and/or upgrade services (the “Services”) upon the terms and conditions set forth on the Service Proposal, the attached Equipment Coverage Details, and these Terms and Conditions (collectively, the “Agreement”). MXR and the Customer have caused this Agreement to be executed by their duly authorized officers or representatives, effective as of the later date of authorized signature hereon.
2. Order of Precedence: This Agreement comprises the entire agreement between the parties and supersedes all prior proposals, quotations, agreements, promises, or representations between the parties, whether verbal or written. The terms of this Agreement will prevail notwithstanding any variance with the terms of any present or future purchase or service order or request by the customer for services. In the event of any conflict between terms, the order of precedence shall be (a) the Service Proposal, (b) the Equipment Coverage Details, and (c) these Terms and Conditions. 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.
3. Additions and Deletions or System Upgrades from Service Coverage and Additional Services: Customer shall notify MXR in writing prior to (i) adding or deleting equipment, or (ii) upgrading existing system hardware or software to provide additional clinical functionality, or (iii) changing parts or other items to this Agreement after the initial inspection for service coverage described below.
   All additions, deletions or hardware/software upgrades outside the scope of this Agreement will be subject to new pricing, and will be quoted prior to being incorporated into this Agreement.
   For services requested by Customer outside of the Agreement, MXR may provide additional and separately-billed services such as: (i) instructions to Customer in the operation of the Equipment; (ii) the addition or removal of accessories, attachments, or other devices from the Equipment; (iii) the movement or relocation of the Equipment; (iv) resolution of problems or services caused by or necessitated by the unauthorized actions of Customer, third parties or external sources, including breach of warranties by the original manufacturer of the Equipment; (v) increase in service time necessitated by Customer’s operator error; (vi) repair due or damage from any cause other than ordinary use; and/or (vii) repair of damage or increase in service time caused by unauthorized alterations including, but not limited to, deviation from circuit or structural design of the equipment as provided by the original manufacturer(s) or MXR.
4. 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.
5. Amendment; Waiver; Survival: 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. The terms of this Agreement which by their nature are intended to survive its expiration (such as confidentiality provisions and Customer’s obligation to pay any amounts owed to MXR) will continue in full force and effect.
6. Assignment; Use of Subcontractors: 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.
7. Billable Service Calls: Service calls requested by Customer outside of this Agreement are billed by MXR at the then current regular and overtime rates for travel and on-site labor plus all applicable reasonable travel expenses. The customer will be provided a quotation for any equipment parts that need to be replaced. The customer authorizes MXR to perform and invoice for the service by scheduling the call. Billable service calls may be canceled by the customer with a minimum of twenty-four (24) hours written notice and the customer will have no liability whatsoever for timely cancellations.
8. Confidentiality: 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.
9. Coverage Terms for Service Support: For services set forth on the Service Proposal, MXR will supply all labor required for preventive and scheduled maintenance and remedial repairs on the Customer’s equipment as described in the Equipment Coverage Details. MXR will perform all maintenance services in accordance with the maintenance programs set forth in the applicable manufacturer’s service manuals. MXR may also replace all unserviceable parts with new or equivalent parts as specified by MXR on the initial inspection report described below; and as provided in this Agreement.
10. Initial Inspection (If Applicable): If equipment is new equipment to be serviced by MXR and not a renewal, within thirty (30) calendar days of the effective start date of this Agreement, MXR (or its authorized subcontractor) shall inspect each item of the Customer’s equipment and review all logs and documentation associated with it to determine its eligibility for service coverage hereunder. If MXR’s inspection reveals that an item of equipment is inoperable or in need of substantive repair, MXR will notify customer within ten (10) business days of the date of inspection and provide a written estimate of the cost of repair at MXR’s then-current list prices/rates for time and materials. Service requests made prior to the completion of the inspection that require part(s) replacement will be treated as a pre-existing condition and the part repair or replacement will be invoiced to the Customer. Equipment identified by MXR as requiring repair service but not authorized for repair or otherwise repairable by Customer will be removed from service support under this Agreement and deleted from the Equipment Coverage Detail until such repair is completed. If Customer does not permit MXR to conduct its inspection within the above thirty (30) calendar day period, or if any items of equipment are in storage, not in use or otherwise not available for inspection during the thirty (30) calendar day inspection period, Customer will be responsible for all repairs necessary to bring that item of equipment into safe operable condition before MXR will provide service coverage for it.
11. Parts and Replacements; Exclusions: 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. Installation of parts not supplied by MXR or its representative without prior written consent of MXR constitutes a material breach of this Agreement.
    Consumable items, accessories, networking hardware and software, printers and other peripherals are not covered under this Agreement. Parts that are deemed cosmetic or accessory in nature may be replaced at cost to the Customer.
12. Customer Provided Parts: If Equipment covered does not include parts replacement as specified in the Coverage Details section(s), or part(s) being replaced is not covered under the scope of the contract, customer may source their own parts with the following stipulations;
    1. 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.
    2. 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 rates listed in the Coverage Details
    3. 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 part(s) if purchased through MXR
13. CT Tube Usage Tracking (If Applicable): Customer agrees to allow MXR to review CT usage information during each preventative maintenance visit. This information will be input into MXR’s service/ticketing system. If any CT equipment covered on this contract is entitled to unlimited tube coverage it will be used to determine if customers usage of the CT is as agreed to in the Coverage Details section of the Equipment
14. Unlimited CT Tube Coverage (If Applicable): If tube coverage is unlimited as defined in the Coverage Details section(s) of this agreement, MXR will provide unlimited replacement tubes during the term if customer remains below the usage metric identified in the Coverage Details section of the equipment which will be one of the following; (i) Patient Count, (ii) mAs, (iii) Gantry Rotations, or (iv) Scan Seconds. If Customer exceeds the limit by 10% or more, Customer agrees to pay an overage fee indicated in the Coverage Details section, or renegotiate the remainder of the contract. If Customer is unwilling to pay the overage fee, the equipment in question will be changed from unlimited tube coverage to one tube replacement for the full contract term.
15. Increase in Cryogen Costs (If Applicable): Customer acknowledges the volatile nature of the market with regard to helium costs, and MXR’s lack of control of such costs. In the event that helium costs to MXR increase during the term of this Agreement or any renewals, MXR reserves the right, upon thirty (30) days written notice, to pass along the increase helium costs in the form of an increase in the Agreement charges.
16. Uptime Guarantee for Services Only: If an Uptime Guarantee is referenced in the Equipment Coverage Details, MXR will guarantee the Equipment can be used for scanning patients for a defined percentage of the total coverage hours in a given year. For the purposes of calculating the uptime there will be two measurements, Base Time and Downtime. Base Time is defined as the total covered hours of the contract for a one (1) year term, so for example if the contracted hours of coverage are 8am to 5pm Monday through Friday there would be a total of 2,340 Base Time Hours (9 hours a day x 5 days a week x 52 weeks a year). Downtime is defined as the total number of hours the Equipment is unable to scan patients during covered hours excluded exceptions as referenced in this clause. For example if the contracted hours of coverage are 8am to 5pm Monday through Friday, MXR receives a call at 6:00am on Monday, and the system is available for scanning at 10:00am Monday there would be 2 hours of downtime as the two hours between 6:00am and 8:00am are not time covered under the contract. The formula for determining the uptime percentage will be (Base Time – Downtime)/Base Time.
    
    The following are reasons why downtime events would not be included in this calculation
    1. Scheduled Preventative Maintenance
    2. If MXR is prepared to perform maintenance services to make the Equipment operational but such service is refused by the Customer or is deferred by the Customer until a later time or date
    3. If the Equipment is not otherwise made available to MXRs’ service engineers
    4. If the Equipment is down is due to, associated with, or caused by misuse, negligence, or operator error
    5. Inadequate environmental conditions (not conforming with the environmental specifications outlined by the OEM), including temperature and humidity, line power exceeding OEM's requirements of voltage, frequency, impulses or transients
    6. Acts of God or other force majeure events
    
    If the equipment uptime level is found to be less than the guaranteed percentage over an annual period, as computed in accordance with the above guidelines, MXR will extend the term of this agreement by one week for each 1% point less than the contracted uptime (e.g., if contracted uptime is 96% and actual uptime is 93% MXR would extend the contract by 3 weeks)
17. Customer Responsibilities: In order for MXR to perform its duties and obligations under this Agreement (including warranty obligations), Customer agrees to:
    1. 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.
    2. 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.
    3. 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 under this Agreement. Customer shall notify MXR of any mobile equipment location(s) upon execution of this Agreement. Mobile equipment traveling more than fifty (50) miles from the original Customer location is excluded from the designated on-site response time and subject to additional travel charges.
    4. Promptly place service calls in accordance with any reasonable MXR protocols provided to Customer.
    5. Customer is responsible for reporting helium levels weekly back to MXR either by emailing CISHeliumReadings@mxrimaging.com or calling the main service number at 866-310-0071, Option 1.
    6. Establish and maintain security, virus protection, backup and disaster recovery plans for any data, images, software or equipment. This responsibility includes maintaining secure network and network security components, firewalls and security-related hardware or software, and preventing unauthorized access to the equipment.
    7. Promptly notify MXR in writing of any change in the Customer information specified in this Agreement, the location of the equipment or any change in Customer ownership or management control so that MXR may exercise its rights under the Assignment section. MXR will also notify Customer of any change in MXR ownership or management control so that Customer may exercise its rights under the Assignment section.
    8. Power and Grounding. Customer is responsible for ensuring satisfactory power quality and grounding per OEM specifications for all Equipment under this MXR Service Agreement.
    9. Customer is responsible for securing software license keys from the OEM as necessary to perform certain aspects of the services as outlined in the Agreement. If such keys are unavailable at the time of service and required to correct an issue, MXR cannot be held in breach or liable for its inability to correct the issue. Additionally, any downtime associated to an issue that requires unavailable license keys will not be counted towards any uptime guarantee if included in the Agreement.
18. Cleaning Supplies: Customer shall provide, at no charge to MXR, the necessary cleaning supplies required by MXR in the performance of the Services hereunder.
19. Taxes: 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.
20. Exclusions: Unless otherwise specifically stated in the Equipment Coverage Details, MXR will not provide the following services or they will be quoted on a billable basis to Customer:
    1. The repair, replacement or disposal of any accessories, table and positioning pads, straps or consumable items including batteries for UPS systems.
    2. The repair, replacement of any MRI coil deemed by the repair facility as “not normal wear and tear” or “abuse”. This can include but not limited to; damage due to mishandling of the coil, cracked housing, patient fluid infiltration or other patient abuse.
    3. Any MRI repair service, including a system ramp/shim or any system parts including cryogens, compressed gases due to a system failure or quench outside of MXR control which includes power failures.
    4. Third party MRI coils are not covered (i.e Invivo wrist array, lower extremity, knee array, breast array, small extremity and 8 channel shoulder.)
    5. The repair, replacement of any ultrasound probe deemed by the repair facility as “not normal wear and tear” or “abuse”. This can include but not limited to: fluid infiltration due to tears in lends from improper cleaning, array or element damage due to mishandling of the probe.
    6. Glycol replacement is considered a consumable, and it is the responsibility of Customer to maintain glycol onsite. Any flush or refills needed due to inability to identify the glycol supply will be considered billable to Customer.
    7. The reimbursement of MXR expenditures for any non-contracted facility or rigging cost.
    8. Applications training or ongoing applications support.
    9. Any service or parts, including cryogens/compressed gasses, surge suppressor, power regulator devices or UPS systems, required as a result of anything external to the covered equipment, including building, van or trailer structural deficiency, power surge or power fluctuations, dust, sand or other particulate debris or environmental (air conditioning, water chiller, etc.) failure.
    10. If the Customer is notified or aware of a deficient part not covered under this Agreement and fails to take corrective action to mitigate damages to the covered equipment, the Customer assumes the responsibility for any parts and services provided by MXR covered under the Agreement.
    11. Service required due to equipment moves made by the Customer.
21. 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.
22. Independent Contractor: MXR is an independent contractor. MXR employees are under MXR’s exclusive direction and control. MXR subcontractors’ employees are under MXR’s subcontractors’ exclusive direction and control. Nothing in this Agreement will be construed to designate MXR or any of its employees or MXR subcontractors or any of their employees as Customer’s employees or agents; except for the grant of limited agency above in the “Agent of Customer” Section above.
23. 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.
24. Limited Warranties: MXR warrants that the Services will be performed by qualified employees or subcontractors in a professional and workmanlike manner. 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, 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.
    Indemnity: MXR shall indemnify and hold harmless Customer from losses and claims that are caused by the sole negligent acts or omissions of MXR.
25. Payment Terms: Invoices are payable in United States currency only to the address listed on MXR’s invoice. Unless otherwise expressly stated in the Service 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 under this or any 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.
    1. 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.
    2. 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.
26. Purchased Equipment and Parts: The following provisions shall apply only to the purchase of equipment or parts from MXR that are outside of the scope of a service agreement:
    1. Delivery: MXR reserves the right to make delivery in installments under a mutually agreed schedule. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delivery dates are approximate
    2. 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.
    3. 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.
    4. 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.
    5. 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.
    6. 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.
    7. 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.
27. 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.
28. Term: The term of this Agreement shall be for the period stated in the Service Proposal above. The term shall automatically renew for an additional period equal to the length of the original period unless either party gives the other a written notice, within sixty (60) business days of the end of the current term of its election to terminate the Agreement at the end of the then current term. MXR reserves the right to adjust pricing and/or rates under this Agreement to its then-current rates at the time of the renewal term.
29. Product Removal from Coverage: MXR will use commercially reasonable efforts to perform its obligations under this Agreement. In the event MXR determines it can no longer provide effective corrective maintenance or planned maintenance services for the item(s) included in this Agreement, MXR may remove the affected Product from coverage upon thirty (30) days’ prior written notice to the Customer, or upon mutual agreement with the Customer, MXR may elect to do one of the following: 1) to continue the Services and scheduled payment associated with this Agreement on a best effort basis, 2) reduce the level of coverage for the impacted equipment to a PM only level agreement, with the associated market pricing for altered coverage, or 3) remove from coverage the item impacted with no further obligation for the removed item other than Customer’s payment of all current outstanding invoices.
30. 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, 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
31. 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.
32. Termination For Cause: This Agreement may be terminated by the Customer with thirty (30) days written notice to MXR should: (a) the equipment covered be de-installed, sold or removed from service; or (b) the facility is shut down and the equipment covered is no longer being used on patients; or (c) the Customer becomes insolvent or the subject of a bankruptcy proceeding.
    In the event this Agreement is terminated prior to expiration for one of the 3 reasons listed above, MXR will recalculate all services (travel, labor, and parts) on a Time and Materials basis using the Travel and Labor rates listed on the Equipment Details page for the Equipment being removed, and Customer agrees to pay the difference between what Customer has paid to date for service on Equipment being removed vs. the calculated amount for what service would have been using the Times and Material rate calculated.
33. Termination Without Cause: In the event this agreement or portions of this agreement are terminated by Customer for a reason not listed in the Termination For Cause section , or if Customer is in breach of this contract as described in the Breach of Contract section, MXR will either;
    1. Invoice Customer for an amount equal to twenty percent (20%) of the remaining contract value for Equipment being removed
    2. Calculate all services (travel, labor, and parts) on a Time and Materials basis for the Equipment being removed and invoice customer the difference between what Customer has paid to date vs. the calculated amount for what service would have been using MXR’s then billable rates at the time of termination
    MXR will invoice Customer for whichever is the larger amount due to the Customer between these two options. Customer will have 30 days to remit payment

1. Agreement: The customer identified on the Service Proposal attached hereto (hereinafter referred to as “Customer”) has agreed to purchase, and MXR Imaging (f/k/a Merry X-Ray Chemical Corporation) (hereinafter referred to as “MXR”) has agreed to provide, certain maintenance, repair, update and/or upgrade services (the “Services”) upon the terms and conditions set forth on the Service Proposal, the attached Equipment Coverage Details, and these Terms and Conditions (collectively, the “Agreement”). MXR and the Customer have caused this Agreement to be executed by their duly authorized officers or representatives, effective as of the later date of authorized signature hereon.
2. Order of Precedence: This Agreement comprises the entire agreement between the parties and supersedes all prior proposals, quotations, agreements, promises, or representations between the parties, whether verbal or written. The terms of this Agreement will prevail notwithstanding any variance with the terms of any present or future purchase or service order or request by the customer for services. In the event of any conflict between terms, the order of precedence shall be (a) the Service Proposal, (b) the Equipment Coverage Details, and (c) these Terms and Conditions. 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.
3. Additions and Deletions or System Upgrades from Service Coverage and Additional Services: Customer shall notify MXR in writing prior to (i) adding or deleting equipment, or (ii) upgrading existing system hardware or software to provide additional clinical functionality, or (iii) changing parts or other items to this Agreement after the initial inspection for service coverage described below.
   All additions, deletions or hardware/software upgrades outside the scope of this Agreement will be subject to new pricing, and will be quoted prior to being incorporated into this Agreement.
   For services requested by Customer outside of the Agreement, MXR may provide additional and separately-billed services such as: (i) instructions to Customer in the operation of the Equipment; (ii) the addition or removal of accessories, attachments, or other devices from the Equipment; (iii) the movement or relocation of the Equipment; (iv) resolution of problems or services caused by or necessitated by the unauthorized actions of Customer, third parties or external sources, including breach of warranties by the original manufacturer of the Equipment; (v) increase in service time necessitated by Customer’s operator error; (vi) repair due or damage from any cause other than ordinary use; and/or (vii) repair of damage or increase in service time caused by unauthorized alterations including, but not limited to, deviation from circuit or structural design of the equipment as provided by the original manufacturer(s) or MXR.
4. 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.
5. Amendment; Waiver; Survival: 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. The terms of this Agreement which by their nature are intended to survive its expiration (such as confidentiality provisions and Customer’s obligation to pay any amounts owed to MXR) will continue in full force and effect.
6. Assignment; Use of Subcontractors: 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.
7. Billable Service Calls: Service calls requested by Customer outside of this Agreement are billed by MXR at the then current regular and overtime rates for travel and on-site labor plus all applicable reasonable travel expenses. The customer will be provided a quotation for any equipment parts that need to be replaced. The customer authorizes MXR to perform and invoice for the service by scheduling the call. Billable service calls may be canceled by the customer with a minimum of twenty-four (24) hours written notice and the customer will have no liability whatsoever for timely cancellations.
8. Confidentiality: 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.
9. Coverage Terms for Service Support: For services set forth on the Service Proposal, MXR will supply all labor required for preventive and scheduled maintenance and remedial repairs on the Customer’s equipment as described in the Equipment Coverage Details. MXR will perform all maintenance services in accordance with the maintenance programs set forth in the applicable manufacturer’s service manuals. MXR may also replace all unserviceable parts with new or equivalent parts as specified by MXR on the initial inspection report described below; and as provided in this Agreement.
10. Initial Inspection (If Applicable): If equipment is new equipment to be serviced by MXR and not a renewal, within thirty (30) calendar days of the effective start date of this Agreement, MXR (or its authorized subcontractor) shall inspect each item of the Customer’s equipment and review all logs and documentation associated with it to determine its eligibility for service coverage hereunder. If MXR’s inspection reveals that an item of equipment is inoperable or in need of substantive repair, MXR will notify customer within ten (10) business days of the date of inspection and provide a written estimate of the cost of repair at MXR’s then-current list prices/rates for time and materials. Service requests made prior to the completion of the inspection that require part(s) replacement will be treated as a pre-existing condition and the part repair or replacement will be invoiced to the Customer. Equipment identified by MXR as requiring repair service but not authorized for repair or otherwise repairable by Customer will be removed from service support under this Agreement and deleted from the Equipment Coverage Detail until such repair is completed. If Customer does not permit MXR to conduct its inspection within the above thirty (30) calendar day period, or if any items of equipment are in storage, not in use or otherwise not available for inspection during the thirty (30) calendar day inspection period, Customer will be responsible for all repairs necessary to bring that item of equipment into safe operable condition before MXR will provide service coverage for it.
11. Parts and Replacements; Exclusions: 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. Installation of parts not supplied by MXR or its representative without prior written consent of MXR constitutes a material breach of this Agreement.
    Consumable items, accessories, networking hardware and software, printers and other peripherals are not covered under this Agreement. Parts that are deemed cosmetic or accessory in nature may be replaced at cost to the Customer.
12. Customer Provided Parts: If Equipment covered does not include parts replacement as specified in the Coverage Details section(s), or part(s) being replaced is not covered under the scope of the contract, customer may source their own parts with the following stipulations;
    1. 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.
    2. 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 rates listed in the Coverage Details
    3. 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 part(s) if purchased through MXR
13. CT Tube Usage Tracking (If Applicable): Customer agrees to allow MXR to review CT usage information during each preventative maintenance visit. This information will be input into MXR’s service/ticketing system. If any CT equipment covered on this contract is entitled to unlimited tube coverage it will be used to determine if customers usage of the CT is as agreed to in the Coverage Details section of the Equipment
14. Unlimited CT Tube Coverage (If Applicable): If tube coverage is unlimited as defined in the Coverage Details section(s) of this agreement, MXR will provide unlimited replacement tubes during the term if customer remains below the usage metric identified in the Coverage Details section of the equipment which will be one of the following; (i) Patient Count, (ii) mAs, (iii) Gantry Rotations, or (iv) Scan Seconds. If Customer exceeds the limit by 10% or more, Customer agrees to pay an overage fee indicated in the Coverage Details section, or renegotiate the remainder of the contract. If Customer is unwilling to pay the overage fee, the equipment in question will be changed from unlimited tube coverage to one tube replacement for the full contract term.
15. Increase in Cryogen Costs (If Applicable): Customer acknowledges the volatile nature of the market with regard to helium costs, and MXR’s lack of control of such costs. In the event that helium costs to MXR increase during the term of this Agreement or any renewals, MXR reserves the right, upon thirty (30) days written notice, to pass along the increase helium costs in the form of an increase in the Agreement charges.
16. Uptime Guarantee for Services Only: If an Uptime Guarantee is referenced in the Equipment Coverage Details, MXR will guarantee the Equipment can be used for scanning patients for a defined percentage of the total coverage hours in a given year. For the purposes of calculating the uptime there will be two measurements, Base Time and Downtime. Base Time is defined as the total covered hours of the contract for a one (1) year term, so for example if the contracted hours of coverage are 8am to 5pm Monday through Friday there would be a total of 2,340 Base Time Hours (9 hours a day x 5 days a week x 52 weeks a year). Downtime is defined as the total number of hours the Equipment is unable to scan patients during covered hours excluded exceptions as referenced in this clause. For example if the contracted hours of coverage are 8am to 5pm Monday through Friday, MXR receives a call at 6:00am on Monday, and the system is available for scanning at 10:00am Monday there would be 2 hours of downtime as the two hours between 6:00am and 8:00am are not time covered under the contract. The formula for determining the uptime percentage will be (Base Time – Downtime)/Base Time.
    
    The following are reasons why downtime events would not be included in this calculation
    1. Scheduled Preventative Maintenance
    2. If MXR is prepared to perform maintenance services to make the Equipment operational but such service is refused by the Customer or is deferred by the Customer until a later time or date
    3. If the Equipment is not otherwise made available to MXRs’ service engineers
    4. If the Equipment is down is due to, associated with, or caused by misuse, negligence, or operator error
    5. Inadequate environmental conditions (not conforming with the environmental specifications outlined by the OEM), including temperature and humidity, line power exceeding OEM's requirements of voltage, frequency, impulses or transients
    6. Acts of God or other force majeure events
    
    If the equipment uptime level is found to be less than the guaranteed percentage over an annual period, as computed in accordance with the above guidelines, MXR will extend the term of this agreement by one week for each 1% point less than the contracted uptime (e.g., if contracted uptime is 96% and actual uptime is 93% MXR would extend the contract by 3 weeks)
17. Customer Responsibilities: In order for MXR to perform its duties and obligations under this Agreement (including warranty obligations), Customer agrees to:
    1. 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.
    2. 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.
    3. 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 under this Agreement. Customer shall notify MXR of any mobile equipment location(s) upon execution of this Agreement. Mobile equipment traveling more than fifty (50) miles from the original Customer location is excluded from the designated on-site response time and subject to additional travel charges.
    4. Promptly place service calls in accordance with any reasonable MXR protocols provided to Customer.
    5. Customer is responsible for reporting helium levels weekly back to MXR either by emailing CISHeliumReadings@mxrimaging.com or calling the main service number at 866-310-0071, Option 1.
    6. Establish and maintain security, virus protection, backup and disaster recovery plans for any data, images, software or equipment. This responsibility includes maintaining secure network and network security components, firewalls and security-related hardware or software, and preventing unauthorized access to the equipment.
    7. Promptly notify MXR in writing of any change in the Customer information specified in this Agreement, the location of the equipment or any change in Customer ownership or management control so that MXR may exercise its rights under the Assignment section. MXR will also notify Customer of any change in MXR ownership or management control so that Customer may exercise its rights under the Assignment section.
    8. Power and Grounding. Customer is responsible for ensuring satisfactory power quality and grounding per OEM specifications for all Equipment under this MXR Service Agreement.
18. Cleaning Supplies: Customer shall provide, at no charge to MXR, the necessary cleaning supplies required by MXR in the performance of the Services hereunder.
19. Taxes: 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.
20. Exclusions: Unless otherwise specifically stated in the Equipment Coverage Details, MXR will not provide the following services or they will be quoted on a billable basis to Customer:
    1. The repair, replacement or disposal of any accessories, table and positioning pads, straps or consumable items including batteries for UPS systems.
    2. The repair, replacement of any MRI coil deemed by the repair facility as “not normal wear and tear” or “abuse”. This can include but not limited to; damage due to mishandling of the coil, cracked housing, patient fluid infiltration or other patient abuse.
    3. Any MRI repair service, including a system ramp/shim or any system parts including cryogens, compressed gases due to a system failure or quench outside of MXR control which includes power failures.
    4. Third party MRI coils are not covered (i.e Invivo wrist array, lower extremity, knee array, breast array, small extremity and 8 channel shoulder.)
    5. The repair, replacement of any ultrasound probe deemed by the repair facility as “not normal wear and tear” or “abuse”. This can include but not limited to: fluid infiltration due to tears in lends from improper cleaning, array or element damage due to mishandling of the probe.
    6. Glycol replacement is considered a consumable, and it is the responsibility of Customer to maintain glycol onsite. Any flush or refills needed due to inability to identify the glycol supply will be considered billable to Customer.
    7. The reimbursement of MXR expenditures for any non-contracted facility or rigging cost.
    8. Applications training or ongoing applications support.
    9. Any service or parts, including cryogens/compressed gasses, surge suppressor, power regulator devices or UPS systems, required as a result of anything external to the covered equipment, including building, van or trailer structural deficiency, power surge or power fluctuations, dust, sand or other particulate debris or environmental (air conditioning, water chiller, etc.) failure.
    10. If the Customer is notified or aware of a deficient part not covered under this Agreement and fails to take corrective action to mitigate damages to the covered equipment, the Customer assumes the responsibility for any parts and services provided by MXR covered under the Agreement.
    11. Service required due to equipment moves made by the Customer.
21. 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.
22. Independent Contractor: MXR is an independent contractor. MXR employees are under MXR’s exclusive direction and control. MXR subcontractors’ employees are under MXR’s subcontractors’ exclusive direction and control. Nothing in this Agreement will be construed to designate MXR or any of its employees or MXR subcontractors or any of their employees as Customer’s employees or agents; except for the grant of limited agency above in the “Agent of Customer” Section above.
23. 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.
24. Limited Warranties: MXR warrants that the Services will be performed by qualified employees or subcontractors in a professional and workmanlike manner. 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, 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.
    Indemnity: MXR shall indemnify and hold harmless Customer from losses and claims that are caused by the sole negligent acts or omissions of MXR.
25. Payment Terms: Invoices are payable in United States currency only to the address listed on MXR’s invoice. Unless otherwise expressly stated in the Service 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 under this or any 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.
    1. 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.
    2. 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.
26. Purchased Equipment and Parts: The following provisions shall apply only to the purchase of equipment or parts from MXR that are outside of the scope of a service agreement:
    1. Delivery: MXR reserves the right to make delivery in installments under a mutually agreed schedule. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delivery dates are approximate
    2. 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.
    3. 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.
    4. 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.
    5. 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.
    6. 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.
    7. 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.
27. 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.
28. Term: The term of this Agreement shall be for the period stated in the Service Proposal above. The term shall automatically renew for an additional period equal to the length of the original period unless either party gives the other a written notice, within sixty (60) business days of the end of the current term of its election to terminate the Agreement at the end of the then current term. MXR reserves the right to adjust pricing and/or rates under this Agreement to its then-current rates at the time of the renewal term.
29. Product Removal from Coverage: MXR will use commercially reasonable efforts to perform its obligations under this Agreement. In the event MXR determines it can no longer provide effective corrective maintenance or planned maintenance services for the item(s) included in this Agreement, MXR may remove the affected Product from coverage upon thirty (30) days’ prior written notice to the Customer, or upon mutual agreement with the Customer, MXR may elect to do one of the following: 1) to continue the Services and scheduled payment associated with this Agreement on a best effort basis, 2) reduce the level of coverage for the impacted equipment to a PM only level agreement, with the associated market pricing for altered coverage, or 3) remove from coverage the item impacted with no further obligation for the removed item other than Customer’s payment of all current outstanding invoices.
30. 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, 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
31. 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.
32. Termination For Cause: This Agreement may be terminated by the Customer with thirty (30) days written notice to MXR should: (a) the equipment covered be de-installed, sold or removed from service; or (b) the facility is shut down and the equipment covered is no longer being used on patients; or (c) the Customer becomes insolvent or the subject of a bankruptcy proceeding.
    In the event this Agreement is terminated prior to expiration for one of the 3 reasons listed above, MXR will recalculate all services (travel, labor, and parts) on a Time and Materials basis using the Travel and Labor rates listed on the Equipment Details page for the Equipment being removed, and Customer agrees to pay the difference between what Customer has paid to date for service on Equipment being removed vs. the calculated amount for what service would have been using the Times and Material rate calculated.
33. Termination Without Cause: In the event this agreement or portions of this agreement are terminated by Customer for a reason not listed in the Termination For Cause section , or if Customer is in breach of this contract as described in the Breach of Contract section, MXR will either;
    1. Invoice Customer for an amount equal to twenty percent (20%) of the remaining contract value for Equipment being removed
    2. Calculate all services (travel, labor, and parts) on a Time and Materials basis for the Equipment being removed and invoice customer the difference between what Customer has paid to date vs. the calculated amount for what service would have been using MXR’s then billable rates at the time of termination
    MXR will invoice Customer for whichever is the larger amount due to the Customer between these two options. Customer will have 30 days to remit payment