Complete Agreement. These Terms and Conditions (“Terms”) are provided by Perimeter Medical Imaging Corp. (together with its subsidiaries and affiliates, “Perimeter Medical”) and govern Customer’s purchase and/or use of Perimeter Medical equipment (“Equipment”) and Perimeter Medical supplies (“Supplies”), together with any included Software (as defined in Section 13) and related Services (as defined in Section 2) (collectively, the “Product” or “Products”). Each of Perimeter Medical and Customer may be referred to in these Terms as a “Party” and collectively as the “Parties.” These Terms, together with (i) other documents executed by the Parties (if any) and (ii) applicable Perimeter Medical quotations and acknowledgements, constitute the entire agreement between the Parties (the “Agreement”) with respect to the Products. The Agreement supersedes all other quotations, purchase orders, agreements, understandings, warranties and representations (whether written or oral) between the Parties with respect to the Products. Perimeter Medical hereby objects to and rejects all additional, conflicting, or inconsistent terms or conditions and any such terms or conditions submitted by Customer shall have no effect and shall not be part of the contract between Customer and Perimeter Medical for the purchase and/or use of Products. Failure by Perimeter Medical to object to any provision contained in any order or other communication from Customer shall not be construed as a waiver of the terms and conditions set forth herein or an acceptance of any such provision. No addition to, modification of, or waiver of any provision of the Agreement shall be binding upon either Party unless made in writing and signed by authorized representatives of each Party. Customer’s issuance of a purchase order and/or acceptance of any Product shall constitute Customer’s acceptance of the Agreement. Headings and captions in the Agreement are for convenience only, and in no way affect its interpretation.
Payment. Customer shall pay invoices net thirty (30) days from the invoice date. Perimeter Medical may charge monthly interest at the maximum rate permitted by law on all amounts not paid by the invoice due date until all such amounts are paid in full. Perimeter Medical is not obligated to deliver any Product when Customer’s payment is past due. Prices, fees, and charges for Products and any related services (such as maintenance during the Warranty Period and training, as applicable, “Service(s)”) are payable in U.S. Dollars only, and do not include any applicable taxes or shipping charges. If Customer claims any tax exemption, it must furnish a valid tax exemption certificate to Perimeter Medical before shipment of Products. Perimeter Medical reserves the right to increase prices on thirty (30) days written notice to Customer.
Product Shipment and Risk of Loss. All Products shall be shipped F.O.B. Origin, regardless of any provisions for payment of freight, insurance, the form of shipping documents, or selection of carrier by Perimeter Medical. F.O.B. Origin means title and risk of loss for Supplies passes to the Customer at the shipping dock of Perimeter Medical or Perimeter Medical’s supplier or authorized agent. Title to Equipment and Software remains with Perimeter Medical notwithstanding any shipping terms, and Customer will cooperate fully with Perimeter Medical to obtain insurance payouts in the event of any damage to or loss of Equipment. Customer is responsible for shipping charges.
Delivery and Acceptance; Equipment Return. Product orders are subject to written acceptance by Perimeter Medical and continuing credit approval. Perimeter Medical shall use all commercially reasonable effort to ship Products on the dates and in the quantities listed in Customer’s purchase orders, but all delivery dates are estimates and not binding on Perimeter Medical, and Perimeter Medical will not be liable for its failure to meet such dates. Perimeter Medical may make shipments of Product(s) as available and each shipment shall be separately invoiced. Acceptance occurs upon Perimeter Medical’s delivery of the Products to Customer’s facility. Customer must provide an adequate site for the Equipment. If Customer fails to accept shipment of Products ordered by Customer or contemplated by the Agreement, Customer shall be responsible for Perimeter Medical’s reasonable insurance, handling, and storage charges. At the end of the term or time period set forth in the quotation, purchase order, or other document, Customer shall return the Equipment to Perimeter Medical in good operating condition, and shall allow Perimeter Medical or its authorized agents to access Customer’s facility for the purpose of obtaining the Equipment.
Product Handling and Use. Customer will allow the Products to be used only by competent individuals. Customer will use the Products in a careful and proper manner, will not damage the Equipment, and will comply with all federal, state, and local laws in its use of the Products. Except as expressly provided in specifications, operating manuals, or similar written documentation from Perimeter Medical, Customer will not make any alterations or repairs to the Equipment without Perimeter Medical’s prior written consent. Products are only intended for the uses as described in the applicable operator’s manual or instructions for use. Customer may not engage in, and assumes all risks associated with, non-listed uses of Products and/or use of Products which is inconsistent with the specifications and requirements applicable to such Products, and Customer hereby indemnifies and holds Perimeter Medical harmless from any claim associated with any such uses. Customer is not authorized to, and agrees not to: (a) resell any Product, unless otherwise authorized by Perimeter Medical in writing; (b) transfer, or distribute any Product, directly or indirectly, to any third party for any purpose or use, except as otherwise approved by Perimeter Medical in writing; or (c) reverse engineer, disassemble, or conduct unauthorized analysis of any Product and/or its method of use.
Title; Further Assurances. The Equipment and Software are and will remain the exclusive property of Perimeter Medical, subject to Customer’s limited rights to use the Equipment and Software in its normal business operations as contemplated by the Agreement, but without any authority to sell, lease hypothecate or otherwise dispose of the Equipment and Software in any manner. Customer will keep the Equipment and Software at all times free and clear from all liens and encumbrances and will not transfer or dispose in any way the Equipment and Software except to return the Equipment and Equipment to Perimeter Medical on demand consistent with the Agreement. Customer will give Perimeter Medical immediate notice of any attachment or other judicial process affecting any article of the Equipment and/or Software. If requested by Perimeter Medical, Customer will affix plates or markings on the Equipment and on any documents indicating Perimeter Medical’s ownership, and Customer will not allow any other indicia of ownership or other interest in the Equipment to be placed on the Equipment. Unless it obtains Perimeter Medical’s prior, written consent (which Perimeter Medical may withhold for any or no reason), Customer may not move the Equipment to any location other than the initial location agreed to by the Parties. Perimeter Medical is authorized by Customer, at Perimeter Medical’s expense, to file and/or reference any document or instrument (including the Agreement) as may be permitted by law showing the interest of Perimeter Medical in the Equipment, including filing purchase money financing statements and continuation statements pursuant to the Uniform Commercial Code. Customer will promptly execute and deliver to Perimeter Medical any additional documents, instruments, agreements and assurances and take further action as Perimeter Medical may from time to time reasonably request in order to more effectively carry out the intent and purposes of this Section and to establish and protect Perimeter Medical’s rights in and to the Equipment and/or Software. If Customer enters into any type of loan agreement, indenture, or similar arrangement, and such arrangement requires Customer to pledge or otherwise provide Customer’s personal property as collateral to secure Customer’s obligations, Customer will ensure the Equipment and Software is not identified as being owned by Customer and will promptly provide Perimeter Medical with notice thereof. Customer shall not list the Equipment or Software in any of Customer’s records as belonging to Customer, including without limitation any of Customer’s inventory lists.
Warranties. Customer acknowledges and agrees that neither Perimeter Medical nor its agents have made warranties or representations other than those expressly contained herein. Perimeter Medical warrants that (i) the Equipment shall be free from defects in material and workmanship and conform to the Perimeter Medical specifications for one (1) year starting from the date of shipment (“Warranty Period”); (ii) consumable Supplies are warranted to conform to published specifications for a two (2) year period commencing on Customer’s receipt of the Supplies; and (iii) licensed Software is warranted to operate in accordance with published specifications. PERIMETER MEDICAL MAKES NO OTHER WARRANTIES, EXPRESS, STATUTORY, OR IMPLIED, IN CONNECTION WITH THE PRODUCTS INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO DESIGN, MERCHANTABILITY, OR FITNESS FOR ANY PURPOSE. SUCH LIMITED WARRANTY IS GIVEN SOLELY TO THE ORIGINAL CUSTOMER AND IS NOT GIVEN TO, NOR MAY IT BE RELIED UPON BY, ANY THIRD PARTY INCLUDING, WITHOUT LIMITATION, CUSTOMERS OF CUSTOMER. Any claim for breach of these warranties must be made in writing to Perimeter Medical within the applicable Warranty Period and no later than thirty (30) days after discovery of the breach. Perimeter Medical’s sole obligation for breach of warranty will be, at Perimeter Medical’s option, the repair or replacement of the breaching Product or an appropriate refund, allowance, or credit. Perimeter Medical must be given reasonable access and an opportunity to inspect all Products. If Customer has failed to notify Perimeter Medical within six (6) months after the claim arises, Customer shall be barred from instituting any legal action against Perimeter Medical thereafter. These remedies shall comprise Perimeter Medical’s entire liability and Customer’s exclusive remedy for breach of warranty and are in lieu of any other remedies at law or equity. These warranties do not apply to any item that is: (a) repaired or altered other than by Perimeter Medical authorized service personnel; (b) subjected to physical (including thermal or electrical) abuse, damage, stress, or misuse; (c) stored, maintained, or operated in any manner inconsistent with applicable Perimeter Medical specifications or instructions, including Customer’s refusal to allow Perimeter Medical recommended Software upgrades; or (d) designated as supplied subject to a non-Perimeter Medical warranty or on an “as-is” basis.
LIMITATION OF LIABILITY. EXCEPT FOR PERSONAL INJURY TO THE EXTENT RESULTING FROM PERIMETER MEDICAL’S NEGLIGENT OR INTENTIONALLY WRONGFUL ACTS OR OMISSIONS, PERIMETER MEDICAL IS NOT LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL LOSSES, DAMAGES, OR EXPENSES (INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE, PROFITS, DATA, OR USE), DIRECTLY OR INDIRECTLY ARISING FROM THE SALE, HANDLING, SERVICE OR USE OF PRODUCTS ORDERED OR FURNISHED PURSUANT TO THE AGREEMENT, OR FROM ANY CAUSE RELATING THERETO. EXCEPT FOR PERSONAL INJURY TO THE EXTENT RESULTING FROM PERIMETER MEDICAL’S NEGLIGENT OR INTENTIONALLY WRONGFUL ACTS OR OMISSIONS, PERIMETER MEDICAL IS NOT LIABLE UNDER ANY LEGAL THEORY OR FOR ANY CAUSE WHATSOEVER, WHETHER BASED UPON WARRANTY, TORT, CONTRACT, NEGLIGENCE, OR OTHER THEORY, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, FOR ANY AMOUNT IN EXCESS OF THE PRICE, FEE OR CHARGE THEREFORE RECEIVED BY PERIMETER MEDICAL.
Force Majeure. A “Force Majeure Event” means any of the following to the extent that it causes material, relevant business interruption: an act of God or federal, state, or local governmental authority, flood, fire, earthquake, explosion, war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, restraints or delays affecting common carriers, or, provided the following do not relate to either Party’s workforce: lock-outs, strikes, or other labor disputes or events which result in similar effects. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement (except for any obligations to make payments to the other Party) when and to the extent such failure or delay is caused by or results from a Force Majeure Event. The Party suffering such a Force Majeure Event shall give prompt notice to the other Party, stating the period of time the occurrence is expected to continue, and shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.
Insurance. During the term of the Agreement, Perimeter Medical shall maintain in effect the following insurance with respect to Customer’s location (i) worker’s compensation insurance covering any and all of its employees, agents or representatives who provide Services, in amounts and coverage complying with the requirements of the applicable state; (ii) general liability insurance covering the acts or omissions of Perimeter Medical and its employees, agents or representatives, and any and all Equipment and other personal property of Perimeter Medical; and (iii) product liability insurance. At Customer’s request, Perimeter Medical shall provide a certificate of insurance to Customer.
Governmental Authorizations; Domestic Use. Customer is responsible for compliance and costs associated with all required licenses, permits, or other governmental authorizations needed for Customer to use the Product (“Licenses”). Customer represents and agrees that it shall handle all Product and technical data related to the Licenses so that it conforms to all applicable U.S. laws and regulations, including U.S. export licensing laws and the U.S. Foreign Corrupt Practices Act. Customer shall not trans-ship, divert, re-export or otherwise dispose of any U.S. origin goods or technology obtained from Perimeter Medical except as U.S. laws and regulations expressly permit. The Agreement only applies to domestic (U.S.) use of the Products.
Indemnity. Perimeter Medical shall defend, indemnify, and hold Customer harmless from and against any third-party claim that: (i) Customer’s use of Products infringes a valid U.S. patent, copyright, or trademark, and/or (ii) a defect in workmanship or design of the Products caused injury; in each case provided that: (a) Customer has used Products only as approved by Perimeter Medical and in a manner consistent with the Agreement, and Products have not been altered other than by Perimeter Medical; (b) Customer promptly notifies Perimeter Medical of such claim; (c) Perimeter Medical has sole control of the defense, settlement, and/or compromise of such claim; (d) the claim did not arise solely or in part from the negligence or other improper behavior of any individual not employed by or acting as an agent of Perimeter Medical; and (e) Customer fully cooperates with Perimeter Medical and furnishes all information and assistance necessary or useful to defend such claim. Customer may obtain, at its sole expense, legal counsel in connection with such claim. Customer shall defend, indemnify, and hold harmless Perimeter Medical from and against any and all damages incurred or suffered that arise, directly or indirectly, from the following: (a) any claim that the Customer’s use of the Product infringes upon the intellectual property rights of any third party; (b) any medical or diagnosis decisions made by Customer related to the Product; or (c) any use of the Product that is not in accordance with the Agreement.
Software License. “Software” includes all Perimeter Medical (and third-party) computer software, firmware, and associated documentation, in any form, that Perimeter Medical supplies to Customer in connection with the Agreement. To the extent the Product includes Software, Customer is granted a non-exclusive, non-transferable, non-sublicensable, royalty-free license to use Software solely on the Equipment on which it is first installed or as designated in the Agreement, in connection with the Equipment in the normal course of Customer’s business, and for no other purpose or business. Software, at all times, and all intellectual property rights associated therewith, remains the sole property of Perimeter Medical. Software is agreed to contain, and shall be treated as, confidential information. Customer shall not decompile, disassemble, or reverse engineer the Software; nor shall Customer grant third parties access to the Software. The Parties agree that all information needed for interoperability is available from Perimeter Medical in accordance with applicable government directives. From time to time, Perimeter Medical may develop new versions or updates for the Software. Customer shall allow Perimeter Medical access to the Equipment to implement any new versions or updates to the Software. Customer has no right to use, sell, assign, transfer, copy, or sublicense Software except as expressly provided herein, and Customer’s noncompliance with this Section will be deemed a material breach of the Agreement. In addition to all other rights and remedies Perimeter Medical may have at law or in equity, Perimeter Medical may immediately terminate any Software license agreement if Customer breaches any portion of this Section.
Confidential Information. Both Parties agree to hold in strict confidence the terms of the Agreement and all information provided to the other in connection with the performance of their respective obligations under the Agreement, including, without limitation, financial and pricing information, except to the extent that disclosure is required by applicable law. The terms and conditions of the Agreement must not be disclosed to any third-party without the prior written consent of the other Party, except either Party may disclose the terms and conditions of the Agreement to its employees, professional advisors, agents or independent contractors who require knowledge of the terms and conditions of the Agreement, so long as such individuals are subject to applicable non-disclosure agreements.
Product Performance Data. Operational and performance data that is stored, recorded, made available, processed, created, derived, generated and collected from the Products (“Performance Data”) is exclusively owned by Perimeter Medical and Perimeter Medical has all right, title and interest in and to any and all Performance Data. Performance Date does not include PHI (defined in Section 17).
Compliance with Laws. Perimeter Medical and Customer shall comply with all federal and state laws that govern the enforceability and performance of the Agreement.
HIPAA Compliance. Each Party shall comply, as applicable, with the privacy regulations within the Health Insurance Portability and Accountability Act of 1996, and its implementing regulations, as amended from time to time (“HIPAA”). The Agreement between Perimeter Medical and Customer will in no way involve any use or disclosure of Protected Health Information (“PHI”) between the Parties, and Perimeter Medical does not require any PHI to perform any Services contemplated in the Agreement. Customer agrees that it will not give Perimeter Medical direct or indirect access to PHI, nor will Customer disclose any PHI to Perimeter Medical, during any interactions.
Federal and State Reporting/Disclosure Laws. Customer acknowledges and agrees that federal and state reporting laws, including, but not limited to, the Federal Physician Payments Sunshine Act (“Sunshine Act”), may require Perimeter Medical to disclose certain aspects of this arrangement. Unless otherwise noted in the Agreement, the cost of any Product training provided by Perimeter Medical is included in the purchase price of the Product where applicable. Customer shall promptly provide to Perimeter Medical all information that Perimeter Medical requests in connection with any applicable obligations under the Sunshine Act or any similar state law in connection with the Product.
Fraud and Abuse. Perimeter Medical hereby certifies that it is not currently a listed vendor in the: (a) Federal General Services Administration’s “List of Parties Excluded from Federal Procurement or Nonprocurement Programs” in accordance with Presidential Executive Orders 12549 and 12689 “Debarment and Suspension;”; and (b) Office of the Inspector General of the Department of Health and Human Services’ “List of Excluded Individuals/Entities.” Any discounted pricing terms offered under the Agreement may be a “discount or other reduction in price” under the Federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b. Customer shall take all actions necessary to comply with the Anti- Kickback Statute discount safe harbor regulations, 42 C.F.R. § 1001.952(h), including but not limited to, (i) maintaining accurate records reflecting the pricing terms of items and Services purchased under the Agreement; (ii) fully and accurately reporting any discount received under the Agreement if applicable; and (iii) making available information provided to Customer by Perimeter Medical concerning cost reports and other filings with the government, including but not limited to, the Secretary of the U.S. Department of Health and Human Services or other state agencies. The Parties acknowledge and agree that the arrangement covered by this Agreement is for the sole purpose of furthering the Parties’ legitimate business objectives. The Parties intend that all terms of this Agreement are commercially reasonable and that the compensation paid by Customer for the Product shall be at fair market value, based on arm’s length bargaining. The Parties acknowledge and agree that no benefit to be received by either Party under this Agreement, or any other agreement between the Parties, is in exchange for, will require, or is intended to induce either Party in return for any item or service, or anything else, for which payment may be made in whole or in part under a Federal or state health care program.
Access to Books and Records. Until the expiration of four (4) years after the furnishing of Services under the Agreement, Perimeter Medical shall make available upon written request of the Secretary of Health and Human Services or the Comptroller General of the United States, or any of their duly authorized representatives, the Agreement and such books, documents and records of Perimeter Medical as are necessary to certify the nature and extent of the costs hereunder. If Perimeter Medical carries out any of its duties under the Agreement through a subcontract, for the value or cost of $10,000 or more over a 12-month period, with a related organization, such contract must contain a clause placing the same duty on the subcontractor as the agreement places on Perimeter Medical. This section survives the termination of the Agreement according to its terms. If the law or regulations are effectively amended to increase or decrease the annual amount necessary to require this clause, the amount set forth herein shall be amended accordingly. Notwithstanding the presence of this clause in the Agreement, this clause only applies if the actual dollar amount paid during any 12-month period equals or exceeds the government threshold amount.
Default. In addition to any default events specified elsewhere in the Agreement, the occurrence of any of the following events constitutes a default (“Default”) by either applicable Party: (a) non-payment when due of any amount payable by Customer; or (b) failure to materially perform any covenant or condition of the Agreement. In the event of Default by Customer hereunder, all indebtedness of Customer may, at the option of Perimeter Medical and without demand or notice of any kind, immediately become due and payable, and in addition to all other remedies, Perimeter Medical may (i) require Customer to return any Equipment and/or (ii) immediately terminate the Agreement. The non-Defaulting Party is entitled to recover from the Defaulting Party any and all expenses and damages that the non-Defaulting Party sustains by reason of Default including, but not limited to, reasonable attorneys’ fees, and in the case of Perimeter Medical, all expenses of repossession, removal, storage and disposition of the Equipment. The remedies and rights specified herein are cumulative and not exclusive. The exercise or the non-exercise of any right or remedy does not limit or prejudice the non-defaulting Party as to that right or remedy or as to any other rights or remedies provided by applicable law.
Bankruptcy. Except as may be prohibited by law, a Party to the Agreement may elect to cancel any unfulfilled obligations if any of the following situations arise: (a) the other Party becomes insolvent or is unable to pay debts as they become due; (b) a voluntary or involuntary bankruptcy proceeding is instituted by or against a Party; or (c) an appointment of a receiver or assignee for the benefit of creditors occurs on behalf of a Party.
Waiver and Severability. If either Party fails to perform obligations under the Agreement, such nonperformance does not affect the other Party’s right to enforce performance at any time. Waiver of any remedy or material breach of any subject matter contained in the Agreement is not a waiver unless agreed to by the Parties in writing. Each provision of the Agreement is separate and independent of one another, and the unenforceability of any provision shall not affect the enforceability of any other provision. If any provision is held to be excessively broad or unenforceable, such provision shall be modified accordingly so that it is enforceable to the fullest extent possible by law.
Assignment. Customer shall not assign the Agreement without the prior written consent of Perimeter Medical, which consent may be withheld for any or no reason. Subject to the foregoing, the rights and obligations herein shall be binding upon the successors and assigns of Customer.
Notices. Any notification required under the Agreement is deemed to have been given either one (1) day after being given to an express overnight carrier with a reliable system for tracking delivery, or four (4) business days after having been mailed postage prepaid by United States registered or certified mail. Any required notices to Customer shall be delivered to the address set forth in the applicable Perimeter Medical quotation, and to Perimeter Medical at 8585 N. Stemmons Freeway, Suite 106N, Dallas, TX 75246, Attn: Finance Department. Either Party may change its mailing address by notice as provided by this Section.
Governing Law. The Agreement shall be governed by the laws of the State of Texas without regard to its conflict of laws provisions. The Parties specifically agree that any action relating to the relationship between the Parties, the Agreement, the Products provided, purchased or licensed hereunder, shall be brought and tried in the federal and state courts residing in Texas. Customer hereby waives all objections to and consents to the jurisdiction of the Texas courts. EACH PARTY EXPRESSLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY LITIGATION ARISING FROM OR RELATED TO THE AGREEMENT.
Equal Employment Opportunity Policy. Perimeter Medical is an equal opportunity employer and is or may become a federal contractor or subcontractor. Consequently, the Parties agree that they will abide by the applicable requirements of 41 CFR 60-1.4(a), 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a) and that these laws are incorporated herein by reference. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. These regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. The Parties also agree that they will abide by the applicable requirements of Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A), relating to the notice of employee rights under federal labor laws. The Products may be associated with a U.S. government contract. If so, there may be additional required terms and conditions which will be supplied.
6.14.2021 Perimeter Medical Sales Terms and Conditions (US)