(716) 395-0300 sales@imagemonitoring.com

Image Monitoring USA - Terms and Conditions

These Terms and Conditions (these “Terms”) govern the sale, licensing, installation, and servicing of products, associated software, and related services by Image Monitoring USA (“IM USA”) to the customer identified in the attached Quotation provided by IM USA (“Customer”). These Terms, together with any Quotation, Purchase Order or separately executed agreement incorporating them by reference and any other terms expressly incorporated herein by reference (collectively, the “Agreement”), constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior negotiations, representations, warranties, and understandings. Any terms or conditions contained in Customer’s purchase order or other documents that are inconsistent with or additional to the terms of this Agreement are expressly rejected and shall have no force or effect unless agreed to in a writing signed by an authorized officer of IM USA.

 

  1. Acceptance

IM USA will deliver to the Customer and the Customer will accept and pay for all products ordered by the Customer pursuant to the order being accepted by IM USA.  All orders are subject to acceptance by IM USA who may accept either in writing or by shipping. (If leasing see leasing acceptance).

  1. Sales & Use Tax

The prices on the Quotation do not reflect local sales tax. All orders shipped will include local sales tax unless there is a tax-exempt certificate received by IM USA. In some cases where IM USA has not established a local agreement with the State, IM USA will not collect sales tax. However local sales taxes may still be applicable and payable by Customer.

  1. Payment Terms
    Payment is due in full upon execution of the Agreement.
  2. Reimbursement Issues

IM USA does not guarantee reimbursement by any insurance carrier or third party payor at all. Any reimbursement information given to potential customers is standard reimbursement information available to the public on either the Internet or standard publications. It is the duty of the end-user to evaluate all reimbursement issues as it pertains to the use of the products.

  1. Firm Order

Customer may modify, rescind, or cancel any product order or portion prior to shipment without additional charges. In the event, the Customer cancels or changes the order after shipment a 25% restocking fee will apply to approved returns. Goods that have been opened or are not in their original packaging will not be accepted as a return.

  1. Network Support

IM USA will reasonably cooperate with the Customer and the Customer’s IT/network team to assist with the integration of our device into the Customer’s network environment, including providing available technical information and support.

However, the Customer remains solely responsible for planning, implementing, validating, and maintaining the integration of the device into its network, systems, and cybersecurity environment. IM USA are not responsible for the integration itself, nor for any issues, delays, failures, or disruptions arising from the Customer’s network, systems, or integration activities.

 7. Limited Warranty

IM USA’s warranty, if any, for products set forth in the Quotation is available at https://imagemonitoringusa.com/warranty.  IM USA’s warranty is contingent upon operation and maintenance of the applicable product during the entire warranty period in accordance with the manufacturer’s recommended operating procedures as described in the product documentation. . Customer must notify IM USA in writing within a reasonable time period, but not later than five (5) business days following Customer’s observation that the warranted component(s) is not in conformity with this limited warranty during the applicable warranty period.  IM USA’s obligation and Customer’s sole remedy, under this limited warranty is, at IM USA’s option, the repair, replacement or correction of any non-conforming component of the product, or refund of fees paid for such product.  The following are not covered by IM USA’s warranty: (i) damage caused by use of the product for purposes other than those for which it was designed, and/or in violation of the manufacturer’s specification. All operation of product outside these procedures and specifications will be in violation of IM USA’s limited warranty and will void such limited warranties; (ii) damage caused by disasters or acts of God such as fire, flood, tornado, wind and lightning; (iii) damage or failure caused by improper maintenance, maintenance by unauthorized persons not approved by IM USA, unauthorized attachments and modifications; (iv) use in a manner not in accordance with any operation manual or recommended operating procedure (as such may be amended or supplemented from time to time, with notice to Customer); and (v) any other abuse or misuse by Customer

 

Any maintenance, repair, relocation, calibration, software installation, reimaging, upgrade, modification, alteration, inspection, or service performed by any party other than IM USA, the manufacturer, or a service provider approved by IM USA may, at IM USA’s sole discretion, void warranty coverage and render the product ineligible for support, service contract coverage, upgrades, updates, replacement parts, interoperability assistance, or further service.  IM USA shall have no responsibility for any defect, failure, downtime, interoperability issue, cybersecurity issue, performance issue, or damage resulting in whole or in part from service, maintenance, repair, modification, or interference by any unauthorized third party.

 

EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, IM USA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCTS, SOFTWARE OR SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. IM USA DOES NOT WARRANT THAT THE SOFTWARE WILL BE ERROR-FREE OR UNINTERRUPTED.

  1. Software

IM USA is not responsible for software support or conflicts created by software programs installed that are not provided by IM USA.  Customer agrees to use the software in compliance with all documentation provided by IM USA.  Customer shall not, and shall not permit any third party to (i) copy, modify, translate, adapt, or create derivative works of the software; (ii) reverse engineer, decompile, disassemble, or attempt to derive source code from the software; (iii) sublicense, sell, resell, transfer, assign, or otherwise make available the software to any third party; (iv) use the software to provide services to third parties on a service bureau, time-sharing, or similar basis; (v) remove or obscure any proprietary notices or labels on the software; or (vi) use the software in any manner that violates applicable law.  The software and all intellectual property rights therein are and shall remain the sole property of manufacturer or IM USA, as applicable. No title to or ownership of the software is transferred to Customer under this Agreement. All rights not expressly granted herein are reserved.

  1. Credit Card Charges

All Credit card orders are subject to a 3% service charge.

 

  1. Limited Software Warranty

IM USA’s warranty, if any, for software is available at https://imagemonitoringusa.com/warranty.  Out of warranty software support may be provided by IM USA, in its sole discretion, at IM USA’s then current rates.  Extended warranties, service contracts, support agreements, and similar post-warranty offerings must be separately purchased and are subject to IM USA’s then-current terms and product eligibility requirements.

  1. Limitations of Liability
  • IM USA is not liable for any incidental, consequential, special or indirect damages, or for any loss of revenue, business, or any other financial loss arising out of this Agreement, including any use of IM USA’s equipment or equipment downtime.
  • IM USA’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, WARRANTY, OR ANY OTHER LEGAL THEORY, SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO IM USA FOR THE SPECIFIC PRODUCT, SOFTWARE AND/OR SERVICES THAT GAVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY.
  • No action arising out of or relating to this Agreement, regardless of form, may be brought by Customer more than one (1) year after the cause of action has accrued.
  1. Installation and Training

With the purchase of the system identified in the Quotation, Customer will receive the initial installation support specified in the Quotation which includes an overview of the product, the features, and functions of the user interface and in most cases some hands-on applications.  Additional installation support, applications training, clinical training, workflow training, custom report building, connectivity assistance, or other professional services are available at additional cost unless expressly included in the Quotation.

Unless otherwise stated in the Quotation, any purchased training services must be scheduled and used within twelve (12) months of shipment, after which any unused training shall expire without refund.

  1. CME Training and all on-site Training

Once a training is scheduled Customer is responsible to commit to that date. If Customer cancels less than two weeks before the training, Customer is responsible to pay a $1,000 rescheduling fee. If Customer cancels within 3 days of a scheduled training Customer will be responsible to pay a $2,000 rescheduling fee. The applicable foregoing purchase order and or payments must be received prior to training being rescheduled.

  1. Acceptance of Lease Orders

All lease-purchase orders are accepted in good faith. The title of the equipment does not pass to the Lease company until the equipment is paid for by the lease company. Title and Ownership

Ownership of all equipment on the Quotation stays with IM USA until the total  order is paid in full.

  1. Trade In Credit
    If a trade-in credit or trade-in discount is reflected in the Quotation, IM USA’s responsibility is limited to the decommissioning only. Unless expressly agreed in writing, IM USA assumes no responsibility for disposal, transportation, resale, data retention, data destruction, recycling, environmental compliance, or final disposition of Customer’s old system, cart, accessories, or related equipment.

 

  1. Customer is solely responsible for ensuring that all patient data, protected health information, user data, and other information are properly removed, retained, backed up, or destroyed from any traded-in or decommissioned equipment in accordance with applicable law and Customer policy. The trade in cannot be sold by the medical facility to a third party and parts can not be reused or repurposed unless specifically stated in quotation.

 

 

  1. Indemnification

Customer shall indemnify, defend, and hold harmless IM USA and its officers, directors, employees, and agents from and against any third-party claims, damages, losses, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (a) Customer’s use of the products and software in a manner not authorized under the Agreement or applicable law; (b) Customer’s failure to comply with applicable law; (c) Customer’s clinical decisions, diagnoses, or treatments; (d) Customer’s modification of the products or software without IM USA’s authorization; or (e) Customer’s gross negligence or willful misconduct.

 

IM USA will defend, at its expense, with legal counsel of its choosing any action brought against Customer by a third party, to the extent that such action is based on a claim of direct infringement of any duly issued U.S. patent or registered U.S. copyright resulting from the use by Customer as permitted hereunder of the products and software, as applicable, as made accessible to Customer by IM USA (“Infringement”), and IM USA shall pay all damages and costs finally awarded against Customer directly resulting from such Infringement, provided that IM USA is promptly informed in writing and furnished a copy of each communication, notice or other action relating to the alleged Infringement and is given authority, information and assistance necessary to defend or settle such claim; provided, however, that IM USA shall have no liability hereunder in the event any such claim arises out of Customer’s (i) access to or use of the products or software other than in accordance with the terms of this Agreement, (ii) access to or use of the products or software provided by IM USA with software or equipment not provided to Customer by IM USA, (iii) Customer’s failure to use corrections or enhancements to that are made available by IM USA; or (iv) designs or specifications provided by, on behalf or at the direction of, Customer that are a cause of the Infringement.

 

In the event an Infringement claim is made, IM USA shall have the right, in its sole discretion, to either (i) procure a right for Customer to continue accessing and using the allegedly infringing products or software in accordance with the terms of this Agreement, or (ii) replace or modify all or any portion of the products or software to avoid or mitigate any infringement.  The foregoing shall constitute IM USA’s sole and exclusive obligation and Customer’s sole and exclusive remedy for any Infringement by the products and/or software.

 

  1. Dispute Resolution

In the event of any dispute arising out of or relating to the Agreement, the parties shall first attempt to resolve the dispute through good-faith negotiation between senior representatives of the parties for a period of thirty (30) days following written notice of the dispute. If the dispute is not resolved through negotiation, either party may pursue the remedies available to it under applicable law.

 

  1. Governing Law/Venue

The Agreement shall be governed by and construed in accordance with the laws of Delaware without giving effect to any choice of law or conflict of law rules that would cause the laws of any other jurisdiction to apply.  Each party irrevocably submits to the exclusive jurisdiction of Delaware for the resolution of any dispute not resolved through negotiation under Section 19. Each party waives any objection to personal jurisdiction or venue in such courts.

 

  1. Attorney’s Fees

In any legal action arising out of or related to the Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs from the non-prevailing party.

 

  1. Entire Agreement

The Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements, understandings, negotiations, and representations. No amendment or modification of the Agreement shall be binding unless made in writing and signed by authorized representatives of both parties.

 

  1. Waiver

No waiver of any provision of the Agreement shall be effective unless in writing. No waiver shall be construed as a waiver of any subsequent breach or default of the same or any other provision.

 

  1. Counterparts/Signatures

The Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Electronic signatures shall be deemed valid and binding to the same extent as original signatures.

 

  1. Compliance

IM USA agrees that if it is ultimately determined that this Agreement is a subcontract for services, the value of which is ten thousand dollars ($10,000) or more during a twelve (12) month period within the meaning of Section 952 of the Omnibus Budget Reconciliation Act of 1980 (Public Law 96-499), and 42 C.F.R. Part 20, then IM USA, until expiration of four (4) years after the furnishing of services pursuant to this Agreement, shall make available, upon written request, to the Secretary of Health and Human Services or upon request to the Comptroller General or any of their duly authorized representatives, this Agreement and the books, documents and records that are necessary to evaluate the nature and extent of the costs of rendering the services to Customer under this Agreement. This Agreement shall not be construed as authorizing the release of any books, documents or records of IM USA which do not relate to the furnishings of services to Customer under this Agreement.

 

  1. Certification of Non-Disbarment or Suspension

IM USA represents and warrants it is not currently listed by any governmental agency as excluded, debarred, or otherwise ineligible for participation in any governmental health care program and that it will not directly contract with any individual or entity IM USA knows or should have known after reasonable inquiry, (a) has been convicted of a criminal offense related to health care and has been excluded from participation in any governmental health care program (unless the individual or entity has been reinstated to participation in Medicare and all other governmental health care programs after being excluded because of conviction), or (b) is currently listed by a governmental agency as excluded, debarred, or otherwise ineligible for participation in any governmental health care program, and, in furtherance of this requirement, IM USA agrees to make reasonable inquiry as to any existing or prospective employee, agent, subcontractor, or independent contractor considered for engagement by IM USA to perform services under this Agreement by reviewing the General Services Administration’s Excluded Parties list system from Federal Programs (EPLS), the OIG List of Excluded Individuals/Entities (LEIE), and applicable state Medicaid exclusion lists. This shall be an ongoing representation and warranty during the term of this Agreement and IM USA shall immediately notify Customer of any change in the status of the representations and warranty set forth in this section.

 

  1. Customer acknowledges that no distributor, representative, salesperson, contractor, or agent has authority to bind IM USA to any promise, representation, warranty, service commitment, pricing arrangement, trade-in commitment, support term, or other obligation unless expressly stated in the Quotation or in a written agreement signed by an authorized officer of IM USA.

 

  1. The parties agree that IM USA’s services and functions do not require access to, use or disclosure of protected health information (“PHI”) as defined by the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”) and, accordingly, IM USA is not a business associate of Customer.  However, while performing services for Customer, members of IM USA’s workforce may incidentally access or view PHI used by Customer for treatment, payment or operations purposes.  IM USA agrees to instruct its workforce regarding the need for strict confidentiality of Customer’s PHI.  IM USA agrees to instruct its workforce to decline to view PHI and to destroy any PHI that is incidentally or erroneously shared or delivered to its workforce or to IM USA.

 

  1. Insurance.

 IM USA shall carry general liability insurance coverage in an amount not less than One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate, covering IM USA, its employees and agents for liability arising out of, or resulting from, their acts and/or omission under this Agreement.  IM USA shall provide written verification of this insurance coverage to Customer within thirty (30) days of the request of Customer.

 

  1. Confidentiality.

 

Each party (“Receiving Party”) agrees to hold in strict confidence all non-public information of the other party (“Disclosing Party”) that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and circumstances of disclosure, including without limitation specifications, documents, data, business operations, pricing, and discounts, whether disclosed orally, in writing, electronically, or by any other means (“Confidential Information”). The Receiving Party shall use Confidential Information solely to perform its obligations under this Agreement and shall not disclose or copy Confidential Information without the Disclosing Party’s prior written consent. Upon the Disclosing Party’s written request, the Receiving Party shall promptly return or destroy all Confidential Information and certify such return or destruction in writing. The Receiving Party acknowledges that any breach of this Section may cause irreparable harm for which monetary damages would be an inadequate remedy, and the Disclosing Party shall be entitled to seek equitable relief, including injunction and specific performance, without the requirement of posting bond or proving actual damages. The foregoing obligations do not apply to information that: (a) is or becomes publicly available through no act or omission of the Receiving Party; (b) was rightfully known to the Receiving Party prior to disclosure, as evidenced by written records predating disclosure; (c) is rightfully obtained by the Receiving Party from a third party without restriction on disclosure; or (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.

 

 

Post Warranty Service Contract Terms and Condition

 Version 4927-7199-3015.1.39173.88451