PADnet Rental Agreement Terms and Conditions
This PADnet Rental Agreement (the “Agreement”) is made by and between Collaborative Care Diagnostics, LLC DBA Biomedix, a Minnesota limited liability company (“Lessor”) and the business (“Lessee”) noted on the PADnet Rental Agreement hereto (the “Rental Agreement”) (jointly, the “Parties”) as of the date set forth on the Rental Agreement (the “Agreement Date”). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:
Lessor shall lease to Lessee, and Lessee agrees to lease from Lessor, the Leased Equipment as described in the Rental Agreement. This is a noncancelable/irrevocable Agreement. The Agreement cannot be cancelled or terminated except in accordance with the terms of this Agreement.
2. Required Rebate Program
Lessee acknowledges that the Monthly Lease Payment and Term of this Agreement are only available as a result of the Lessee agreeing to enter into an approved Rebate Program (“Rebate Program”).
3. Unlimited Testing
Lessee has the right to perform unlimited testing using the Leased Equipment under this Agreement.
4. Leased Equipment Description
The Leased Equipment is as described in the first page of the Rental Agreement.
5. Clinical Services and Support
As part of this Agreement, Lessor shall provide to Lessee the following Clinical Services and Support: live customer support during normal business hours, live technical support during normal business hours, unlimited sending and retrieving of PADnet studies to Lessor’s cloud based application, and studio training sessions. Training will cover all aspects of the PADnet system expected to ensure office staff is reasonably functionally proficient in utilization of the PADnet device. Normal business hours are currently Monday through Friday, excluding holidays, 7am – 6pm Eastern Standard Time.
6. Start Dates
Following the execution of this Agreement, Lessor and Lessee shall mutually agree on a Leased Equipment remote training date(s) (“Training Date”). The lease Term will commence upon shipment of the Leased Equipment (the “Effective Date”) and the Initial Deposit will be earned by the Lessor.
Lessor shall deliver the Leased Equipment to Lessee’s facility designated on the Rental Agreement by the applicable Training Date.
8. Maintenance and Service
As part of the Agreement, Lessor shall maintain Leased Equipment in good repair and operating condition and shall perform routine maintenance and repair as required, at no additional cost to Lessee. When Lessee identifies a problem with an item of Leased Equipment, Lessor shall, at Lessor’s option, repair or replace such Leased Equipment within ten (10) business days following telephone, facsimile or written notice from Lessee, with the exception of Leased Equipment requiring special handling, which shall be repaired or replaced at Lessor’s option within a reasonable time period after receipt of notice from Lessee. For the purposes of this Section, 1 PM Central time shall be considered the cut-off time for notification of issues concerning Leased Equipment. Any notification received after that time shall be counted as the next business day. If Lessor chooses to replace non-functioning Leased Equipment, Lessee shall, at Lessor’s expense, return the non¬functioning Leased Equipment to the service center designated by Lessor within three (3) business days of receiving such notice from Lessor.
The maintenance and repair/replacement obligation above shall not apply to any damaged or inoperable Leased Equipment damaged by the actions of Lessee, including negligence or intentional damage to the Leased Equipment by Lessee or its employees.
Lessor, its employees, agents and designees may, at a time mutually agreeable to the Parties, enter Lessee’s premises where the Leased Equipment is kept to test, inspect and service Leased Equipment.9. Loss
Lessee bears all risk of loss, theft, damage or destruction of Leased Equipment. Lessee shall promptly notify Lessor of any loss, theft, damage or destruction of Leased Equipment. Lessor shall promptly make an assessment as to whether any damage is the result of normal wear and tear from proper use, and, if damaged through normal wear and tear (in Lessor’s sole discretion) the Lessor shall repair or replace any such Leased Equipment. If repair or replacement is the result of causes other than normal wear and tear, Lessor will promptly issue an invoice to Lessee for any and all costs and charges related to Lessor’s repair or replacement of Leased Equipment. Lessee shall pay such invoice within thirty (30) days following invoice date. Regardless of whether Lessee promptly informs Lessor of loss, theft, damage or destruction of Leased Equipment, Lessee will remain responsible to make Lease Payments on the dates required by this Agreement.
10. Ownership and Use
Lessor may, in Lessor’s sole discretion, file to perfect a security interest under Article Nine of the Uniform Commercial Code to document its ownership of the Leased Equipment. Lessee shall, promptly upon request, execute any financing statements or agreements requested by Lessor to perfect its security interest in the Leased Equipment. Lessee agrees to pay all costs related to Lessor’s filing of a security interest in the Leased Equipment. Lessee shall not remove, transfer or reinstall Leased Equipment to or at other locations or facilities without prior written consent of Lessor. Lessee shall obtain any and all licenses and permits required for the operation of the Leased Equipment. Lessee acknowledges that Lessor has access and commercial rights to all de-identified information, per HIPAA guidelines, arising from the Agreement for Lessor’s business purposes.
11. Patient Information
The Parties shall comply with all federal and state laws and regulations regarding the confidentiality of information concerning medical records of patients and neither Party shall disclose to any third Party any medical record information regarding individually identifiable patients, except where permitted or required by law.
12. Payment and Charges
Commencing on the Effective Date, Lessee shall pay Lessor the Lease Payment specified in Section 18 – Term and Termination, below, plus applicable taxes and continuing monthly thereafter.
13. Billing and Payment
On or before the first (1st) day of every calendar month during the Term, Lessee shall make the Lease Payment to Lessor, unless the Lease Payment is covered by a qualified Rebate Program. Lessee shall be responsible for all taxes and governmental charges. including, without limitation, any applicable sales taxes.
In the event of any late payment of any invoice amounts. Lessee shall pay interest on such unpaid amounts, which shall accrue at a rate of one and one-half percent (1.5%) per month, or the highest rate permitted by law, of such unpaid amounts for so long as such amounts remain unpaid. If Lessor refers Lessee’s delinquent account to an attorney or collection agency, Lessee agrees to pay all reasonable attorneys’ fees, court costs, and other collection costs in connection with Lessor’s collection efforts.
Lessee shall be responsible, at its sole cost, for maintaining comprehensive general liability and professional liability insurance or maintaining self-insurance funds for such coverage in commercially reasonable types and levels of coverage to insure Lessee, its employees and agents against liability or damages related to the operation and use of Leased Equipment. Lessee shall be responsible, at its sole cost, for maintaining insurance against all risk of loss, theft, damage and destruction of Leased Equipment or maintaining self-insurance funds for such coverage as it shall determine to be necessary or desirable to insure Lessee, its employees and agents against costs related to such loss, theft, damage and destruction of the Leased Equipment.
Each Party shall indemnify the other and all of its managers, members, officers, directors, stockholders, employees, representatives, affiliates and agents, its successors and assigns, and their respective managers, members, officers, directors, stockholders, employees, representatives, affiliates and agents (collectively, “Indemnified Parties”), against, and hold the same harmless from, all liability, losses, damages, obligations, judgments, claims, causes of action and expenses associated therewith including, without limitation, settlements, awards, judgments, court costs and attorneys’ fees (collectively, “Damages”), resulting from or arising out of, directly or indirectly, any negligent or intentional act or omission or any failure to perform any obligation undertaken in or any covenant under this Agreement by the indemnifying party. Furthermore, Lessee shall indemnify and hold harmless Lessor and Lessor’s Indemnified Parties from and against any and all Damages resulting from or arising out of, directly or indirectly, any breach by Lessee or any of its agents, employees, or other representatives of the terms of this Agreement, including without limitation any Damages arising from use or operation of the Leased Equipment or supplies. Upon notice, each Party shall resist and defend at its own expense, and by counsel reasonably satisfactory to the other, any such claim or action. The provisions of this Section shall survive termination of this Agreement for any reason for the later of five (5) years thereafter or until final resolution of any claim arising under this Section following notice given within such five (5) year period.
In no event shall either Party be liable to the other for indirect, special, or consequential damages or lost profits arising out of or related to this Agreement or the performance or breach thereof, even if such Party has been advised of the possibility thereof.
16. Limits of Liability
• LIMITATION OF LIABILITY. LESSOR’S MAXIMUM LIABILITY TO LESSEE OR ANY OF LESSEE’S INDEMNIFIED PARTIES SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS PAID BY LESSEE TO LESSOR FOR THE LEASED EQUIPMENT IN QUESTION.
• LIMITED WARRANTY. LESSOR’S SOLE WARRANTY WILL BE TO REPLACE OR REPAIR, AT LESSOR’S DISCRETION, ANY LEASED EQUIPMENT FOUND TO BE DEFECTIVE THROUGH USE UNDER NORMAL WEAR AND TEAR IN ACCORDANCE WITH SECTION 8 OF THIS AGREEMENT.
• NO ADDITIONAL WARRANTY. LESSOR MAKES NO EXPRESS OR IMPLIED WARRANTIES AND HEREBY DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES OR WARRANTIES BASED ON COURSE OF DEALING OR USAGE OF TRADE, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NEED, OF ACCURACY, NON-INTERFERENCE WITH ENJOYMENT OF RIGHTS, TIMELINESS, AND UNINTERRUPTED PERFORMANCE.
• CONSEQUENTIAL DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
17. Taxes and Liens
Lessee shall remit all applicable fees, assessments, charges and taxes to the appropriate authorities, including without limitation personal property taxes, imposed by federal, state and local laws relating to ownership, sale, use or possession of Leased Equipment.
Lessee shall not incur or suffer to exist any mortgage, lien, pledge, security interest or other encumbrance on Leased Equipment by any third party. Lessor may, in its sole discretion, sell, assign or convey this Agreement to one or more third parties without consent of Lessee.18. Term and Termination
This Agreement shall commence on the Agreement Date and the Term noted in Rental Agreement will commence on the first day of the calendar month following the Effective Date noted in the Rental Agreement. Lessee shall pay Lessor the Monthly Lease Payment noted in the Rental Agreement by the first (1st) day of each calendar month during the Term of this Agreement, unless covered by a qualified Rebate Program.
Upon completion of the initial 24-month Term, this Agreement will automatically extend an additional 24 months unless either Party provides written notice 30 days in advance of the initial expiration date or subsequent expiration date. The Monthly Lease Payment will be reduced to $199 per PADnet per month following the initial 24-month Term.
At the end of the Agreement Term, Lessee will return the Leased Equipment, shipping prepaid, to the location specified by the Lessor.
In the event Lessee fails to make a Lease Payment within ten (10) days of its due date or otherwise violates the provisions of this Agreement, Lessor may exercise all of the rights of a Lessor and terminate this Agreement including, without limitation, obtaining a return of the Leased Equipment. In the event of termination, Lessee shall remain obligated for the unpaid Lease Payments which shall immediately accelerate and be due and payable. Lessee shall be responsible for interest on any amounts due at the rate of one and one-half percent (1.5%) per month or such lower rate as required by law and be responsible for all collection costs including reasonable attorneys’ fees.19. Lessee Options if not connected to a Rebate Program
If the holder of a qualified Rebate Program decides, in their sole discretion, to remove Lessee from their Rebate Program, Lessee will have the following options regarding the Leased Equipment:
• Lessee may convert from PADnet Rental Program to any other PADnet program currently being offered at the time of conversion. Any new equipment, terms and/or conditions will take effect within 30 days of the conversion; or
• Lessee may terminate the Agreement and return the Leased Equipment, prepaid by Lessor, within 15 days of removal from the Rebate Program. If Lessee does not return the Leased Equipment within 15 days the Lessee will be invoiced $14,500 and the Lessee agrees to pay such invoice within 15 days of receipt of the invoice. This payment represents the purchase of the PADnet device and does not include any prepaid service or support.
LESSEE ACKNOWLEDGES THAT THE ABOVE OPTIONS ARE THE ONLY OPTIONS AVAILABLE IF THEY ARE REMOVED FROM A REBATE PROGRAM.
20. Intellectual Property
• Intellectual Property. Lessee acknowledges that Lessor is the owner and/or has license to use certain trade secrets, patents, trademarks, copyrights and other intellectual property rights relating to the Leased Equipment and their use (collectively, the “Intellectual Property”). Lessor grants to Lessee a personal, non-transferable, non-sublicensable, non-exclusive sublicense to use the Intellectual Property only for providing clinical services using the Leased Equipment as contemplated herein. The term of this sublicense shall extend only for so long as this Agreement is in force for an item of Leased Equipment. Nothing in this Agreement shall restrict Lessor from extending similar licenses to any other third parties. During the Term and at all times thereafter, Lessee agrees not to use the Intellectual Property in association with equipment or written materials obtained from other parties and agrees not to use equipment or written materials obtained from other parties in a manner that would infringe upon the Intellectual Property.
• Lessor may make available to Lessee, for an additional fee, certain marketing materials related to the use of the Leased Equipment and its clinical applications (the “Marketing Materials”). Lessee agrees to the following with respect to the use of the Marketing Materials:
1. Lessee shall not modify, duplicate or copy any portion of the Marketing Materials including its content, images, design or logos, copyrights and trademarks without express written authorization from Lessor.
2. Lessee agrees not to use the Marketing Materials in association with equipment or written materials obtained from other parties.
iii. Lessee acknowledges that by ordering, purchasing and using the Marketing Materials, it has reviewed and accepted them for use by Lessee and authorizes the distribution of the Marketing Materials within its corporate divisions and facilities under this Agreement. All Marketing Materials are provided “as is” and without any representation or warranty by Lessor, express or implied.
Lessee acknowledges that by receiving and/or purchasing any of the Written Materials and/or Marketing Materials, Lessee has the rights to use such materials only in connection with the Leased Equipment.
The terms of this Section 20 shall survive the termination of this Agreement between the Parties and shall continue for five (5) years following such termination, or, with respect to trade secrets, such longer period as provided by applicable law.
Unless mutually agreed upon by the Parties in writing, the following applies:
During the Term of this Agreement (including any renewal thereof) and for two (2) years following the date of any termination of this Agreement, Lessee and its affiliates shall not, without Lessor’s prior written consent, directly or indirectly, knowingly solicit or encourage or attempt to influence any individual who is then (or was at any time in the prior 12 months) an employee of Lessor or any of its affiliates and with whom Lessee had regular contact as a result of the transactions provided for by this Agreement, to leave the employment of Lessor or such affiliate of Lessor, as applicable. Nothing in the preceding sentence is meant to prohibit an employee of Lessor or its affiliates from becoming employed by another entity, nor shall it apply to solicitation for employment made through publications of general circulation that are not specifically targeted at employees of Lessor or its affiliates. Lessee acknowledges and agrees that the restrictions set forth in this Section 21 are not unduly harsh or oppressive.
This Agreement may only be amended, altered, waived or terminated in writing, signed by both Parties.
Except as otherwise provided herein, all notices, statements, consents, approvals, requests, demands or other communications required or permitted herein shall be in writing, and shall be deemed delivered immediately if by hand, telecopy or other electronic mail transmission, or on the next business day if by nationally recognized overnight courier service, or within three (3) calendar days if by United States mail, postage prepaid, return receipt requested, to the Parties’ respective addresses below.
The signee for any such correspondence shall represent that he/she is an officer or representative vested with (explicitly, implicitly, or through conduct) the authority to represent and legally bind the entity on which behalf the correspondence is being sent.
24. General Provisions
This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota (without regard to its choice of law principles or rules), 42 U.S.C. section 1320a-7b(b)(3)(A) (the discount exception to the Anti-Kickback Statute), 42 C.F.R. § 1001.952(h)(the discount safe harbor to the Anti-Kickback Statute), and/or other applicable laws of the United States of America. For the purpose of resolving conflicts related to or arising out of this Agreement, the Parties expressly agree that venue shall be in the federal and state courts, as applicable, within or serving Dakota County in the State of Minnesota, and, in addition, the parties hereby expressly consent to the exclusive jurisdiction of the federal and state courts within the State of Minnesota. The Parties agree that service may be served upon such Party anywhere in the world. This Agreement represents the entire agreement between the Parties and supersedes all prior agreements, written and oral, with respect to the subject matter hereof. This Agreement shall be binding on and inure to the benefit of the Parties and their respective successors and permitted assigns, provided that, Lessee shall not assign its rights, duties or obligations hereunder, but Lessor may, in its sole discretion, assign its rights, duties and obligations hereunder, or grant a security interest in this Agreement to one or more third parties at any time upon written notice to Lessee (such notice to include the name and address of such assignee or secured party, and whether such secured party must consent to any amendments). This Agreement includes provisions that are severable and to the extent any such provision may be unenforceable or impair the enforcement of any other provision, shall be modified or deleted herefrom; and may be executed in counterparts. The Parties agree that an electronic copy of this executed Agreement shall be valid for all legal purposes.
This Agreement shall not restrict Lessor from entering into similar arrangements with other persons or entities, nor shall it create any relationship between the Parties other than that of independent contractors.