Invoicing and Payment
Customer shall pay each invoice according to the terms set forth on the invoice. Any invoices not disputed in good faith by Customer within thirty (30) days of receipt shall be final and binding upon Customer. MediLogix will use and rely on the information Customer provides to MediLogix to invoice Customer for rented equipment. Customer shall bear all risk and financial responsibility for billing errors resulting from incorrect information provided to MediLogix, including for any mistakes regarding the quantity or type of the equipment to be provided.
Late Payments
Any invoice not paid by Customer according to the terms set forth on the invoice is subject to a 1.5% monthly interest charge. MediLogix reserves the right to use any and all means of collection available under applicable law to collect any amount past due plus any and all costs and expenses, including attorneys’ fees, incurred in any such collection. Customer agrees to permit MediLogix, upon at least three (3) days’ notice, to enter any of Customer’s facilities to pick up MediLogix’s equipment that is associated with any such unpaid invoice. In the event that Customer does not pay amounts owed according to the payment terms set forth on the invoice, MediLogix, in its sole discretion, reserves the right to (i) place Customer on “credit hold,” that is, MediLogix reserves the right to refuse to deliver rental equipment for new patients until such time as Customer pays all past due amounts, (ii) change future payment terms, and (iii) require ACH or credit card authorization for past due invoices.
Delivery
Upon delivery of the equipment: (a) title to the products purchased will vest with Customer and risk of loss or damage to the products will pass to Customer; and (b) title to the rented equipment will remain with MediLogix; provided, however, (i) MediLogix will be responsible for the maintenance of the ordinary wear and tear of the rented equipment, and (ii) risk of loss or damage to the rented equipment will pass to Customer upon delivery by MediLogix.
Inspection
Within one (1) business day of receipt of any rented equipment or products, Customer will inspect such rented equipment or products. Unless Customer notifies MediLogix in writing of any non-conformities of the rented equipment or products within one (1) business day of receipt, Customer will be deemed to have accepted the rented equipment and products without qualification, and cannot thereafter reject any of the equipment. Once the rented equipment or products are used, such equipment or products shall be deemed to be fully conforming to Customer’s requirements. Customer absolves MediLogix from any liability for any loss, damage or penalties incurred by Customer whatsoever, whether, indirect, incidental, special, consequential, or punitive, resulting from MediLogix's failure to deliver or any delay in delivery of the equipment or products for any reason.
Pick-Up
MediLogix shall promptly pick up and remove any rented equipment upon Customer’s request. Billing will cease only upon notification by Customer to MediLogix that rented equipment is ready to be picked up.
Disclaimer of Warranties
CUSTOMER ACKNOWLEDGES AND AGREES THAT: (a) EACH ITEM OF RENTED EQUIPMENT IS OF A TYPE, DESIGN, QUALITY AND MANUFACTURE SELECTED BY CUSTOMER, ACCEPTABLE TO CUSTOMER AND SUITABLE FOR CUSTOMER’S PURPOSES; AND (b) MEDILOGIX IS NOT THE MANUFACTURER OF THE EQUIPMENT, NOR IS MEDILOGIX THE REPRESENTATIVE OF MANUFACTURER, AND MEDILOGIX EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, AS TO (i) THE TITLE, FITNESS FOR USE FOR A PARTICULAR PURPOSE, DESIGN, OR MERCHANTABILITY THEREOF, (ii) THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCERNABLE, (iii) THE ABSENCE OF INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT OR (iv) ANY OTHER MATTER WHATSOEVER, IT BEING AGREED THAT ALL SUCH RISKS, AS BETWEEN MEDILOGIX AND CUSTOMER, ARE TO BE BORNE BY CUSTOMER. CUSTOMER WILL LOOK SOLELY TO THE EQUIPMENT MANUFACTURER FOR ANY AND ALL CLAIMS RELATED TO THE EQUIPMENT. OTHER THAN WITH RESPECT TO ORDINARY WEAR ASSOCIATED WITH ORDINARY USE, WHICH SHALL BE THE RESPONSIBILITY OF MEDILOGIX, CUSTOMER SHALL COMPLY WITH THE MAINTENANCE AND INSPECTION SECTION BELOW.
Maintenance and Inspection
Customer will, at Customer’s sole cost and expense, and unless MediLogix otherwise consents in writing in advance: (a) operate the rented equipment only in the ordinary course of its business and in compliance with all applicable laws and these terms and conditions; (b) not move the rented equipment from the Customer facility set forth in this invoice or from room-to-room within a facility (if MediLogix consents, the proper cleaning of any equipment so moved is Customer’s responsibility); (c) not sell, lease, transfer, assign or otherwise dispose of the rented equipment; (d) not create or allow to exist any liens, security interests, mortgages and other encumbrances in the rented equipment; and (e) care for, operate and maintain the rented equipment in good operating order, condition and repair and in accordance with the manufacturer's requirements and recommendations. MediLogix will, upon reasonable notice, have the right to (i) inspect and examine the rented equipment to ensure compliance with this Agreement, and (ii) access the rented equipment for regularly scheduled or unscheduled maintenance or repairs. In the event of any malfunctions, defects or other problems with the rented equipment, Customer will immediately notify MediLogix.
Idemnification
Customer agrees to defend at its own cost and to indemnify and hold harmless MediLogix, its agents, members, managers, officers, employees, representatives and affiliates from and against any and all loss, liability, damage, claim or expense (including court costs and reasonable attorneys' fees imposed on, incurred by, or asserted against MediLogix, however caused resulting directly or indirectly from or pertaining to (a) any breach or failure to observe any representation, warranty or agreement by Customer, or (b) the use or operation of the rented equipment or products.
MediLogix agrees to defend at its own cost and to indemnify and hold harmless Customer, its agents, members, managers, stockholders, directors, officers, employees, representatives and affiliates from and against any and all loss, liability, damage, claim or expense (including court costs and reasonable attorneys' fees imposed on, incurred by or asserted against Customer), to the extent caused by any breach or failure to observe any obligation of MediLogix hereunder.
MediLogix agrees to defend at its own cost and to indemnify and hold harmless Customer, its agents, members, managers, stockholders, directors, officers, employees, representatives and affiliates from and against any and all loss, liability, damage, claim or expense (including court costs and reasonable attorneys' fees imposed on, incurred by or asserted against Customer), to the extent caused by any breach or failure to observe any obligation of MediLogix hereunder.
Limitation of Liability
MediLogix's aggregate liability hereunder or otherwise in connection with the provision of the rented equipment shall be limited to the total amount of payments received by MediLogix in any calendar year from Customer hereunder, and in no event will MediLogix be responsible for any indirect, special, consequential, punitive, exemplary or similar damages.
Governing Law
This Agreement will be governed by and construed in accordance with the internal laws of the State of Colorado, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Colorado or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Colorado. Any legal action or proceeding with respect to this Agreement or the transactions contemplated hereby will be brought in the state or federal courts of the State of Colorado, and by this purchase, each of the parties consents to the exclusive jurisdiction of those courts.