Service Agreement Terms and Conditions
MARCO OPHTHALMIC, INC.
TERMS AND CONDITIONS
Upon receiving payment in a timely manner for, but in all events within thirty (30) days from the date of, the Service Agreement Invoice and in accordance with the terms and conditions described therein and herein, Marco Ophthalmic, Inc., a Florida corporation (“Marco”) agrees to provide the following repair services to or for the benefit of the customer identified in the Service Agreement Invoice (“Customer”), for each instrument or other item of equipment (“Equipment”) listed on the Service Agreement Invoice. Marco objects to any different or additional terms contained in any service or purchase order, offer or confirmation sent or to be sent by Customer, which are expressly rejected. By subscribing for this Service Agreement, Customer agrees to these terms and conditions, including specifically, those relating to any Loaner instrument set forth herein. Protection under this Service Agreement is only available for new Equipment and only if coverage is initially purchased within 30 days of the invoice date (“Invoice Date”) for the sale of the Equipment.
1. Agreement. This document describes the protection you have under the service agreement (“Agreement” or “Service Agreement”) in return for payment by you of the amounts invoiced in the Service Agreement Invoice. This Agreement is subject to all terms and conditions described herein. Marco agrees to provide the coverage specified below during the Coverage Term as defined below. Marco will provide this service only in the continental United States.
2. Coverage Term. Unless a different term is specifically set forth in the Service Agreement Invoice (in which case such different term shall be applicable), this Agreement shall remain in force for a period of 12 months from the Effective Date indicated on the Service Agreement Invoice (“Coverage Term”). Coverage may be purchased for up to 60 months from the Invoice Date of the original sale by Marco (“Eligibility Period”). At the end of the initial Coverage Term and any applicable Renewal Period, this Agreement shall automatically renew for an additional 12 month period (“Renewal Period”) provided (a) such coverage period does not, and shall not, extend beyond the end of the Eligibility Period, (b) Marco has not received written notice from the Customer that it elects not to renew this Service Agreement at least 15 days prior to the start of the applicable Renewal Period and (c) Customer has timely paid the then applicable Service Agreement Invoice amount provided by Marco for the applicable Renewal Period. In the event that the Customer has not provided timely notice of non-renewal, Customer hereby authorizes Marco to charge any credit card on file for the applicable invoice amount. If the Coverage Term is not successfully renewed or extended under this Section 2, this Agreement shall terminate at the end of the in-force Coverage Term and may not be reinstated.
3. What this Service Agreement Covers. This Service Agreement governs the hardware services and technical support provided to you by Marco under this Service Agreement. During the Coverage Period, this Service Agreement covers parts and labor costs and materials and repairs necessary to return the Equipment to normal working condition, due to damage resulting from a defects in materials or workmanship or other mechanical and/or electrical failure not excluded from coverage under this Service Agreement. No coverage for electrical failure is provided in the event that the Equipment is not protected, at all times, by a properly operating uninterrupted power supply (“UPS”). This coverage includes all associated costs for shipping plus the cost of loaner equipment, including the shipping thereof. Marco reserves the right to provide service coverage through Field Service or Depot Service.
* Loaner equipment is provided on an as available basis. Marco shall use its reasonable commercial efforts to timely provide a generally equivalent instrument, although it is possible that the Loaner may have lesser or different functionality. Marco will endeavor to ship a Loaner instrument within two business days of a request therefore, although no assurances or guarantees are provided as to the timing of shipping or delivery of a Loaner instrument.
4. What this Service Agreement Does Not Cover. Parts which have a specific life span (e.g. light bulbs, batteries, fuses, etc), that are required to be replaced in connection with regular or preventive Maintenance of the instrument(s), or that do not affect the operability of the instrument(s) (e.g. data cables, network connections, accessories, etc), are not covered by this Agreement.
Damage to the Equipment due to Misuse or Neglect, theft, accident, tempest, fire, flood, earthquake, or other similar cause is in no circumstance covered by this Agreement. Damage resulting from an unsuitable physical or operating environment is not covered by this Agreement.
Preventive Maintenance (e.g. cleaning of lenses or lens banks, lubricating of mechanical parts, etc) and cosmetic damage are not covered under this Agreement.
Any additions, alterations, modifications or repairs by anyone other than an authorized representative of Marco, or such technicians employed by the Customer as have been approved for that purpose by Marco, are not covered under this Agreement. Any subsequent repairs as a result of any Unauthorized Service will be at the expense of the Customer. Cosmetic damage to the Equipment including but not limited to scratches, dents and broken plastic.
Loaner instruments are subject to availability and are not guaranteed. Loaner instruments are for use within the continental United States and are not to be taken out of the country.
Shipping damage to Equipment resulting from inadequate packaging by you.
Expenses incurred by the Customer as a result of required computer networking issues, data backup or electrical work are not covered by this Agreement and will not be covered by Marco. Any loss of data is not the responsibility of Marco.
Claims for coverage first made or communicated to Marco after the end of the Coverage Term.
Maintenance: Maintaining the instrument for the purposes of this Agreement means maintaining the instrument in normal working order. Marco is not responsible in any way for any loss of data or productivity due to equipment failure
Depot Service: Means that the Equipment is required to be sent to Marco for service. Also, Marco reserves the right to transport the Equipment to its workshop for repair if deemed necessary.
Loaner Instrument or Loaner Equipment: A generally equivalent instrument for use during the repair of the Customer’s instrument or equipment.
Field Service: Marco will provide the service at the Customer’s site as agreed to in the terms of the Service Agreement Invoice. If the instrument is relocated to a new site, the Customer shall inform Marco of the new location and to the extent that the location is located within the continental United States, coverage shall continue at the new location.
Misuse or Neglect: Damage to the instrument, due to misuse, theft, neglect, accident, tempest, fire, flood earthquake, or other “Act of God”.
Unauthorized Service: Any adjustment or service work performed by someone other than an engineer or technician employed or approved by Marco. Marco shall be entitled to cancel this agreement should any Unauthorized Service be performed by someone other than an engineer or technician employed or approved by Marco.
Serial Numbers: The serial number is the unique identifying mark for each instrument. Marco shall cease to be further bound to the terms and conditions of the Service Agreement if the serial number or other identification marks are removed or altered.
Time of Service: Marco will perform service at the request of the Customer and only during hours agreed to by the Customer and Marco in advance. Marco does not perform service on weekends or Holidays.
Availability of Components: Marco does not accept responsibility for any repair or any delay in carrying out repairs caused by “difficult to source parts” but will always endeavor to respond promptly and effectively.
6. Who to Call for Service. When service is required on an instrument covered under this Agreement, please call 1-800-874-5274 and speak with one of our Customer Care Representatives.
7. Your Responsibility if you need Repair Service. You must contact Marco if service is needed. Thoroughly check your instrument(s) prior to contacting Marco. Many faults can be due to simple circumstances, such as a blown fuse, power not being turned on, or power to the circuit the instrument is plugged into is faulty. For an instrument(s) using batteries as its prime power source or a remote control unit, ensure the batteries do not require recharging or replacement. Use the manufacturer’s operator manual and follow the instructions carefully to ensure the “fault” cannot be corrected by you.
8. Trade-In Program. If the following conditions are satisfied, Marco will credit fifty percent (50%) of the amounts paid under this Service Agreement for coverage towards the purchase price of new instruments and equipment purchased from Marco. To qualify for this credit, the Service Agreement must have been maintained continuously in force since the original sale date of the Equipment to the Customer, the Customer must trade-in the Equipment towards new instruments and equipment and the Equipment must not be more than five years old determined from the date of sale by Marco to the Customer. Marco shall provide credit for any trade-in Equipment based on the fair market value of the trade-in Equipment, as reasonably determined by Marco. Trade-in Equipment must be free from any liens and encumbrances. To the extent that amounts paid under this Service Agreement relate to time periods after the date that the new purchase and trade-in are effectuated, Marco shall provide a credit of one hundred percent (100%) of the amounts paid for the post-closing period (with such amount determined by prorating the payment for the then applicable coverage period based on the number of days remaining in the period after the closing date relative to the total number of days in the then applicable coverage period).
Modification or Transfer of Agreement: The terms and conditions of this Agreement can only be altered in writing by Marco. The Agreement, and the rights and responsibilities of each of the parties hereunder, may not be assigned, whether voluntarily or by operation of law, provided that the Customer may transfer its rights and obligations under this Agreement in connection with a sale or transfer of the Equipment to another optical care provider as long as the Customer is not in default of its obligations hereunder. In order to effectuate a transfer, the Customer must provide timely written notice of transfer to Marco, which written notice of transfer shall include the transferee’s name, address, telephone number, email address and other contact details, as well as a description of the Equipment transferred. The rights hereunder may only be transferred to another optical care provider and may not be transferred to a person or organization that is in the business of selling, dealing, servicing or marketing optical care or diagnostic devices, instruments or equipment, either alone or as part of a larger organization (a “Dealer”). Marco may determine in its sole and absolute discretion whether a transferee is a Dealer. Marco reserves the right to replace an instrument in the event we determine the instrument is not repairable. We may replace it with an instrument of like kind and quality or we may offer a pro-rata credit toward the purchase of a new instrument. This Agreement will apply to the replacement instrument for the balance of the Coverage Term of this Agreement. Marco may subcontract or assign performance of its obligations hereunder to authorized third party service providers but shall not be relieved of its obligations to Customer in doing so.
Termination of Service Agreement: This Agreement will terminate at the end of the applicable Coverage Term, unless renewed in accordance with the terms of Section 2. All of Marco’s rights, privileges, and remedies with respect to this Agreement will continue in full force and effect after the end of this Agreement.
10. Limitation of Liability. OUR LIMIT OF LIABILITY FOR ANY CLAIM UNDER THIS AGREEMENT IS THE COST TO REPAIR OR REPLACE YOUR COVERED PRODUCT IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, NOT TO EXCEED THE PURCHASE PRICE ACTUALLY PAID FOR ANY PRODUCT, INSTRUMENT OR EQUIPMENT. PLEASE NOTE, UNDER NO CIRCUMSTANCES ARE WE LIABLE FOR ANY OF THE FOLLOWING: (1) THIRD-PARTY CLAIMS AGAINST YOU FOR LOSSES OR DAMAGES; (2) LOSS OF OR DAMAGE TO YOUR RECORDS, FILES OR DATA; OR (3) SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING LOST REVENUE, PROFITS OR SAVINGS), EVEN IF WE ARE INFORMED OF THEIR POSSIBILITY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF SUCH DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU.
11. HIPPA, PRIVACY. Marco complies with all applicable provisions of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). Upon your reasonable request Marco will provide a mutually agreeable Business Associates agreement. In the course of providing the services to you, Marco may need to access, view, or download computer files from systems that might contain personal data. Personal data includes information relating to an individual, from which that individual can be directly or indirectly identified. Personal data can include both personal health information (e.g., images, monitor data, and medical record number) and non-health information (e.g., date of birth and gender). Marco will process personal data only to the extent necessary to fulfill its service obligations under this Agreement.
12. General Terms.
This Agreement is the complete and exclusive statement of the terms and conditions regarding Marco’s performance and replaces any prior oral or written communications on that subject.
In the event that any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement remain in full force and effect.
This Agreement and its performance shall be governed by the laws of the State of Florida, United States of America without giving effect to applicable conflict of law provisions. YOU (FOR YOURSELF AND ON BEHALF OF YOUR AFFILIATES) AND MARCO AGREE THAT ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY MAY BE INSTITUTED IN THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA OR THE COURTS OF THE STATE OF FLORIDA IN EACH CASE LOCATED IN THE CITY OF JACKSONVILLE AND COUNTY OF DUVAL, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM AND CONSENT TO THE SERVICE OF PROCESS BY MAIL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Notices or other communications will be in writing, and will be deemed served if delivered personally, or if sent by facsimile transmission, by overnight mail or courier, or by certified mail, return receipt requested and addressed to the party at the address set forth on the Service Agreement Invoice or if sent via other means when actually received. Either party may update its address by providing a written notice of address change.
Regulation of service plans may vary widely from state to state. Any provision within this Agreement which conflicts with the laws of the state where you are located shall automatically be considered to be modified in conformity with applicable state laws and regulations regarding such matters.
THE TERM AND SCOPE OF THIS AGREEMENT MAY OVERLAP THE MANUFACTURER’S WARRANTY, IN WHICH CASE, THE MANUFACTURER’S WARRANTY SHALL APPLY FIRST TO PROVIDE COVERAGE BEFORE COVERAGE IS PROVIDED UNDER THIS AGREEMENT. COVERAGE SHALL ONLY BE AVAILABLE UNDER THIS AGREEMENT TO THE EXTENT NONE IS AVAILABLE UNDER THE MANUFACTURER’S WARRANTY.
THE PROTECTION AFFORDED BY THIS AGREEMENT IS NOT INSURANCE OR A SUBSTITUTE FOR INSURANCE.
WARRANTY DISCLAIMER. Marco’s full contractual service obligation to you is described in this Agreement. Marco provides no warranties under this Agreement. All service and parts to support service under this Agreement are provided AS IS. NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE APPLIES TO ANYTHING PROVIDED BY OR ON BEHALF OF MARCO UNDER THIS AGREEMENT.
13. Loaner General Terms and Conditions.
The provision of a loaner instrument (“Loaner”) in connection with the repair or service for Customer’s Equipment is subject to the following terms and conditions which may not be modified except in writing signed by Marco or its duly authorized agent.
Customer is responsible for the proper use and deployment of the Loaner. Customer shall use the Loaner only at Customer’s premises to which the Loaner was shipped (the “Authorized Location”) and shall not remove the Loaner from this Authorized Location other than to ship back to Marco. The Loaner shall be used for commercial or business purposes only. Customer shall use the Loaner only for its intended use and purpose, shall allow only Customer’s competent and qualified personnel to use or operate the Loaner and shall use and operate the Loaner (a) in accordance with any instructions furnished by Marco or any other applicable vendor or manufacturer of the Loaner or any components contained therein, and (b) in accordance with applicable statutes, laws, ordinances and regulations. Customer shall not make any modifications to the Loaner without Marco’s prior written consent, which consent may be withheld for any reason or no reason, in Marco’s sole discretion.
Title to the Loaner shall at all times remain with Marco. Customer shall be responsible for the safe packing, proper import, export, shipping and receiving of the Loaner. The Loaner shall be returned within a reasonable amount of time, not to exceed five (5) days, after the Customer’s instrument being repaired and/or serviced is returned to Customer or upon demand by Marco, if sooner (“Loan Period End Date”).
THE LOANER IS PROVIDED AS-IS AND MARCO DOES NOT, AND SHALL NOT, MAKE ANY WARRANTY, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING BUT NOT BY WAY OF LIMITATION, QUALITY, DESIGN, CAPACITY, VALUE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR USE OR PURPOSE, FREEDOM FROM PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT OR OTHER MATTERS CONCERNING THE LOANER.
In the event that Customer has not returned the Loaner before the Loan Period End Date, the Customer shall be charged the full replacement cost for the Loaner. Customer shall make a suitable advance deposit with Marco to cover this full replacement cost in this circumstance or otherwise, provide Marco with a suitable credit card authorized for such purpose with an appropriate balance limit to cover the full replacement cost of the Loaner. In the event that the Loaner is returned after the Loan Period End Date, Marco shall refund to Customer any amount so charged, less a rental fee determined by Marco in its discretion for the period during which the Loaner was retained after the Loan Period End Date. Customer hereby agrees to, and authorizes the use of any credit card as a security deposit against loss or damage of the Loaner and payment in connection with a failure to timely return the Loaner. Customer understands that if the Loaner is returned in a damaged condition, Marco will submit charges for repairs to such credit card. Customer understands that if the Loaner is returned damaged beyond repair or not returned for any reason by Customer, Marco will prepare and submit charges to Customer’s credit card to cover the full cost to replace the Loaner. Customer understands and agrees to these terms as set forth in these terms and conditions. Customer authorizes Marco to charge any such credit card accordingly.
Customer is responsible for the full cost or repair of any Loaner that is damaged, lost, confiscated or stolen from the time Customer assumes custody until it is returned to Marco. The Loaner shall be returned by the Customer in as good a condition as when received by Customer, except for reasonable wear and tear.
This Agreement only gives Customer the right to use the Loaner in a manner consistent with this Agreement. Title to the Loaner shall, at all times, remain with Marco. This agreement is intended to reflect a bailment of the Loaner from Marco to the Customer. If, notwithstanding the intent of the parties, this Agreement is deemed to evidence a consignment, installment sale or similar transaction rather than a bailment of the Loaner, this Agreement shall be deemed to have granted to Marco as security for the Customer’s obligations to Marco, a first priority security interest in the Loaner and all proceeds thereof. Customer shall execute and deliver to Marco, upon Marco request, such public filings (UCC-1s), instruments and assurances as Marco deems necessary to reflect these terms and Marco’s ownership of the Loaner. In the event that Customer fails to sign any such public filings or if no signature is required from Customer, Marco is hereby authorized to make such filings and where required, to sign any such filing as Customer’s attorney in fact. The Loaner shall at all times during the term of the loan be and remain personal and moveable property. Customer shall install the Loaner in a manner which will permit its removal without material injury to the place of installation. Customer shall not identify this Loaner as an asset of Customer in any financial statements or records that it prepares.
Customer shall keep the Loaner free and clear of all liens, encumbrances and security interests (other than those in favor of Marco) and shall not (a) remove the Loaner from the Authorized Location other than to ship back to Marco, (b) remove or efface any of Marco trademarks on the Loaner (if any), (c) do or permit anything to be done which might prejudice Marco’s title to the Loaner, (d) transfer, deliver or otherwise provide the Loaner to any other person or entity or (e) modify the Loaner in any way (except to the extent necessary to install replacement parts thereon or as otherwise necessary to keep the Loaner in good condition) without Marco’s prior written consent. Customer shall comply with all laws, ordinances and regulations applicable to the Loaner and the custody and use thereof. Customer will promptly notify Marco of any change in Customer’s state of incorporation or organization.
In consideration for the loan of the Loaner, the Customer agrees to indemnify, defend and hold Marco harmless from any and all damages, losses, claims, causes of actions, expenses and liability of any nature whatsoever associated with its use of the Loaner while under the care, custody and control of Customer unless due to the gross negligence or willful misconduct of Marco.