X-Ray Equipment Sale Terms & Conditions
X-RAY & 3rd PARTY SOFTWARE TERMS AND CONDITION OF SALE
X-Ray & 3rd Party Software Terms and Condition of Sale | Version F | Effective: 6-29-2023
- EXCLUSIVE TERMS OF SALE.
- ) The equipment and all other goods ("Equipment or "Product(s)") described in the quotation ("Quotation") to which these terms and conditions ("Terms and Conditions") are attached or to which they apply are offered to Customer by MXR Imaging, Inc. (individually or collectively, "Distributor") exclusively on the terms and conditions set forth on the face of the Quotation and supersede all other prior agreements. No addition of modification will be binding unless mutually agreed to in writing. Unless otherwise stated, prices quoted are valid for thirty (30) days from the date of the Quotation.
- ) If Customer orders a Product from the Quotation, whether by purchase order, signed quotation sent via email, standard mail or facsimile, electronic data interchange (EDI), Customer agrees that (i) these Terms and Conditions apply to the sale of the Product, and (ii) any references to Customer’s purchase order, acknowledgement or other document are only for administrative purposes, and shall not be binding on Distributor unless specifically accepted in writing by an authorized representative of Distributor.
- CHANGES, CANCELLATIONS.
Quotations provided by or orders accepted by Distributor are not subject to changes or cancellation by Customer except with Distributor's written consent. Cancellation charges may apply at Distributor's discretion.
- PRICES AND PAYMENT TERMS.
The price for the Products shall be as set forth in the Quotation ("Price"). Prices do not include sales, use or excise taxes, duties or transportation unless otherwise noted in the Quotation. Payment terms are Net 30 days upon receipt by Customer of an invoice from Distributor unless otherwise stated in the quotation.
Delivery terms for all purchases are understood to be FOB destination, unless otherwise specified in the accepted Quotation. Except for any warranty obligations specifically identified herein, risk of loss passes to Customer upon delivery. Customer shall have risk of loss in transit only in cases where shipment is made FOB Distributor's or manufacturer's shipping point. Title to Equipment (excluding licensed intellectual property) will pass to Customer upon Distributor's receipt of payment in full.
Customer shall provide general liability insurance in the amount of $1,000,000 per occurrence/$2,000,000 in the aggregate. Customer also will provide insurance to cover all risk of loss, theft or damage to the Equipment in amounts equal to the full replacement cost of the Equipment, by Insurance carriers acceptable to Distributor. This requirement will remain in effect until the Equipment has been installed and Customer has made payment in full.
- SITE READINESS REQUIREMENTS.
Customer will ensure the installation site is ready prior to the delivery of equipment, which may include and is not limited to the following:
- ) All necessary approvals, permitting, shielding reviews required by either state or local governing agencies which are the Customers responsibility.
- ) Power requirements at the designated power cabinet based on the OEM requirements. This may include phase rotation check where three phase power is specified.
- ) HVAC completed, functioning properly, and tested two days prior to equipment delivery.
- ) All vendor baseplates, reinforcement plates, and overhead grid installed as designated. It is the Customers Design Engineer responsibility to furnish recommended methods of anchoring and attachment for all applicable equipment.
- ) All cable trays, conduits, and raceways correctly sized and installed according to the provided installation drawings.
- ) All lighting installed and functioning.
- ) All networking equipment and drops are tested and functioning.
- ) Any peripheral equipment such as printers or other devices that will communicate with the new equipment must be connected to the network and functioning if Distributor is to setup connections with those devices.
- ) A clear and unobstructed pathway for delivery of the equipment to the installation location.
- ) Means for Distributor to dispose of packing materials, crating, etc.
- ) If equipment has remote diagnostic capabilities, it is the Customers responsibility to provide a secure VPN or other secure means of accessing the system remotely and providing Distributor login credentials if necessary.
- ) The installation price quoted includes only those services specifically described in the Quotation.
- ) Any additional labor and/or travel time required due to delays resulting from the condition/readiness of the installation location(s), or any other cause(s) which are not within the scope of Distributor's installation responsibilities will be billed accordingly at the Distributors then prevailing rates. Any overtime incurred by Distributors employees in respect to additional time required for the aforementioned delay(s) experienced, as well as any extra labor or overtime work performed at the request of Customer will be invoiced to Customer.
- ) Any material costs in excess of standard installation services not specifically stated in the quotation will be invoiced to Customer.
- ) Unless explicitly stated in the Quote Distributor is not responsible for the removal and disposal of old equipment.
- ) Distributor offers no warranty and assumes no liability for the fitness or adequacy of the premises (or the utilities available at the premises) into which the equipment is to be installed, used, or stored.
- ) Customer agrees to indemnify, defend, and hold Distributor harmless against any loss, damage, or claim arising out of the condition of such premises (or utilities).
- CUSTOMER ACKNOWLEDGEMENT
Customer acknowledges and agrees that Distributor is not the manufacturer of the Equipment being quoted, and is not liable for any issues resulting from the design or manufacturing of said Equipment, nor for any issues pertaining to any software required to operate the Equipment.
- 3RD PARTY SOFTWARE (If Applicable)
If Customer is, purchasing software that was not developed and/or maintained by Distributor, the Customer acknowledges the following:
- ) Distributor has not and will not evaluate the software solution for any issues or vulnerabilities, and Customer acknowledges the 3rd Party Software Vendor is solely responsible and liable for any such issues. The 3rd Party Software Vendor is solely responsible for reporting any such issues or vulnerabilities to the Customer.
- ) Any Statements of Work (SOW) or Project Plans developed by the 3rd Party Software Vendor are strictly between the Customer and 3rd Party Software Vendor. Any failures to adhere to these plans and liabilities that may arise from them shall be between Customer and 3rd Party Software Vendor.
- ) Customer understands the specific terms of coverage for the 3rd party software can be supplied upon request by the 3rd Party Software Vendor.
- ) Any hardware such as Workstations or Server sold for use with the 3rd party software will carry the manufacturer standard warranty unless otherwise stated on the Quote.
- ) Customer agrees to work with Distributor for subsequent Service Contracts and not work directly with the 3rd Party Software Vendor unless otherwise agreed to in writing by Distributor. Customer may place service calls with Distributor’s service department or work directly with the 3rd Party Service Provider.
- ) Software upgrades (if applicable) are provided by the 3rd Party Software Vendor and may be included as part of the Agreement. Customer may inquire about software upgrades with Distributor or 3rd Party Software Vendor, who will determine if an update is available and if Customer is eligible to receive the update. Any hardware required to complete an upgrade will be billable to Customer, as well as any labor, travel and services.
- ) Distributor makes no promises that Customer-supplied hardware or software is compatible with the 3rd Party Software quoted. At the Customer’s request and expense, Distributor may be able to evaluate the equipment in order to validate its compliance with the 3rd Party vendor’s minimum requirements. Distributor shall not be liable for any damages that may result when the Customer purchases and configures its own hardware/software, and any Distributor services necessitated by such actions will be billable.
- ) Customer is responsible for ensuring virus protection software is installed on all workstations and servers, and if not, shall purchase and install virus protection software on any or all of these devices. Customer is also responsible for keeping virus protection software and definition files up to date. If problems arise and it is determined a virus is the reason for software or hardware issues, Distributor and/or 3rd Party Software Vendor reserves the right to bill for that time
- ) Customer understands if they allow service coverage to lapse, they may be required to pay a fee for the 3rd Party Software vendor to validate the Customer system.
- ) Customer understands Distributor did not develop, assemble, manufacture, and/or assist in such as related to the software used to operate the Equipment, therefore Customer acknowledges and agrees that Distributor has no liability related to any potential issues that may arise due to any malfunction, defect, failure, error, and/or vulnerability or perception of such of said software.
- ) Customer is responsible and liable for any and all legal matters pertaining to Patient Health Information (PHI), including but not limited to, the implementation, dissemination, and/or misappropriation of PHI on the Equipment.
- ) Customer is responsible for being HIPAA compliant regarding the storage, transfer, retention, and/or deletion of any PHI or related information on the Equipment.
- ) Customer understands when purchasing a software-based solution developed by a 3rd Party Software Vendor such as Picture Archival & Communication Systems (PACS), Distributor makes no guarantees as to the viability of that 3rd Party Software Vendor, therefore Customer acknowledges and agrees that Distributor is not liable for any circumstance that may affect the functionality of that software or the potential loss of earnings to Customer resulting therefrom.
- CUSTOMER DEFAULT
If Customer does not pay any amount when due or does not meet any of its other obligations hereunder, then (in addition to any other remedies available at law or in equity) Distributor may:
- ) accelerate any balance due and require immediate payment thereof,
- ) cease any and all work under this or any other contract with Customer (including without limitation providing service for the Equipment),
- ) enter Customer's premises peacefully and render any Equipment purchased hereunder inoperable,
- ) repossess the Equipment,
- ) file a UCC lien on any of the products which Customer has not made payment in accordance with the payment terms specified on the proposal, or
- ) charge Customer for all costs incurred by Distributor in repossessing, removing, transporting, reconditioning, storing and reselling Equipment.
In any action initiated to enforce the terms of this Agreement following Customer's default, Distributor shall recover as part of its damages, all costs, expenses, and attorney fees incurred in connection with such action.
Until Customer has paid in full for the Equipment, Customer will keep the Equipment free and clear of all claims, liens, security interests or other encumbrances. Customer will not in any other manner attempt to dispose of the Equipment or, without Distributor's written consent, remove the Equipment from the installation site until Customer has paid in full for the Equipment.
- EQUIPMENT OPERATION.
Customer agrees that all Equipment purchased hereunder shall be operated exclusively by duly qualified technicians and/or licensed physicians in a safe and reasonable manner in accordance with manufacturer's instructions and for the purpose for which the Equipment was intended, and in compliance with all applicable regulations, as revised from time to time.
- ) Distributor warrants that it shall have good and marketable title to the Equipment and that the same shall be transferred to Customer free and clear of any and all mortgages, liens, and encumbrances.
- ) Distributor provides specific warranties with respect to Equipment it manufactures. Other Equipment is covered by warranty terms extended by the manufacturers or suppliers of such Equipment. Warranty details are provided in the Quotation or are available from Distributor upon written request. Customer's sole source of warranty for Equipment manufactured/supplied by persons other than Distributor or its affiliates, if any, is the original manufacturer/supplier warranty.
- ) No warranty extended by Distributor shall apply to any Equipment that has been modified, altered, or repaired by persons other than those authorized or approved by Distributor. Equipment sold as "Used" or "Refurbished" will carry no warranty unless otherwise stated in the Quotation. Distributor's obligation under this warranty is limited to labor hour costs only, and does not cover costs of parts or travel and lodging costs.
- ) Distributor warrants that services provided hereunder shall be free from defects in workmanship under normal use and service for the warranty period specified on the Quotation. Distributor will provide warranty services on third party hardware and software.
- ) Distributor's warranty does not apply to consumable materials, unless specifically stated in the Quotation, nor to products or parts thereof manufactured by Customer. Preventative or routine maintenance is specifically excluded for the Equipment sold under this Agreement, and is not included under the Equipment warranty.
- ) The warranties referenced in this section are given expressly in lieu of any other warranties, express or implied, and all other warranties are hereby disclaimed, including without limitation any warranty of merchantability or fitness for a particular purpose or use, on the part of Distributor. Distributor neither gives nor assumes (nor has Distributor authorized any person to give or assume for it) any other warranty or liability in connection with the equipment. In the event of any breach of the manufacturer's or supplier's warranty, Distributor's sole obligation shall be to provide the warranty service described above.
- DISCLAIMERS AND LIMITATIONS ON LIABILITY.
- ) Distributor and its officers, directors, employees, agents and subcontractors shall have no liability for any consequential, incidental, punitive or special damages of any kind by reason of any negligent act or omission or arising out of or in connection with the equipment or its (or their) sale, delivery, installation, maintenance, operation, performance or use.
- ) If customer transfers title to or leases the products sold under this agreement to any third party, customer agrees to obtain from such third party a commitment affording Distributor the protections enumerated herein.
- ) In no event shall Distributor's liability exceed the purchase price of the equipment with respect to which a claim is made (or the installation price if a claim is made with respect to installation work) regardless of whether such claim is brought at law or in equity, and regardless of whether such claim is brought under contract, breach of warranty, tort or any theory of law or equity.
- 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.
- FORCE MAJEURE/SHORTAGE.
Distributor shall not be liable for any delay or default caused by events beyond its control, including but not limited to any acts of God, acts of third parties, acts of Customer (or any of the Customer's employees, agents or representatives), acts of civil or military authorities, fire, floods, and other similar or dissimilar natural causes, riots, wars, sabotage, vandalism, embargoes, labor disputes, strikes, lockouts, epidemics, pandemics, quarantines, unavailability of water, transportation, labor, materials, supplies, fuel, or power, delays in receiving any permits or licenses, delays caused by any laws, regulations, proclamations, ordinances, or any government action or inaction, delays caused by contractors and subcontractors, and any other cause or condition beyond Distributor's control. The time for performance of Distributor's obligations hereunder shall be extended for a commercially reasonable period of time in the event of any delay or default for such case(s).
- ) These Terms and Conditions 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.
- ) Documentation of the installation, training, or service of Equipment quoted, whether by photography or videography may be taken. Any such documentation is the property of Distributor and may be used for training and/or marketing purposes. If Distributor uses any such documentation for training and/or marketing, Distributor will maintain HIPAA compliance and make sure no patient or Customer facility information is visible.
- ) Any drawings, data, designs, workflow processes, implementation strategies, or other technical information supplied by Distributor to Customer in connection with the sale of the Products are confidential ("Confidential Information") and will be held in strict confidence by Customer. Confidential Information will not be reproduced or disclosed to others without Distributor's prior written consent.
- ) Customer agrees to abide by any Software License Agreement provided by said third parties.
- ) The Quotation and these Terms and Conditions may not be assigned by Customer, in whole or in part, without the prior written consent of Distributor.
- ) In the event of conflict between these Terms and Conditions and the Quotation, the terms of the Quotation will control.
- ) Distributor cannot be held liable for any goods or services recommended by MXR or its employees which are provided by businesses other than Distributor.
X-Ray & 3rd Party Software Terms and Condition of Sale | Version F | Effective: 6-29-2023