SECTION 1. GENERAL
a. PURCHASE AND ACCEPTANCE BMX agrees to sell to Client, and Client agrees to purchase from BMX the products and services on the terms and conditions set forth in the signed Agreement. The Agreement will begin on the date when the Agreement is signed by the Client and accepted by BMX (Effective Date). Agreements are not binding on BMX until signed by BMX. Signatures by facsimile and/or in counterparts are binding and fully enforceable. Any change in any of the terms and conditions must be in writing and signed by BMX. All products and services will be shipped to Client FOB Shipping Point, with freight prepaid and billed to Client on the invoice. Client promises to pay to BMX without notice or demand the Purchase Price as detailed in the Agreement. Client will make all payments required under the Agreement to BMX at the address on the payment authorization page of the Agreement or such address as BMX may specify in writing.
b. FEES All fees specified in an Agreement are due and payable to BMX per the Payment Terms of the Agreement. Any other fees and amounts for other products or services shall be due and payable by Client upon receipt of an invoice from BMX. Fees and other amounts paid by Client are non-refundable. If any amount payable to BMX is not paid within 30 days of its due date, (i) Client will pay BMX a late charge not to exceed 10% of the overdue amount or $10, whichever is greater, and (ii) BMX may also, at our option, charge Client interest on the overdue amount at the rate of 1 1/2 % per month. Client shall be liable for all expenses incurred by BMX in any collection efforts, including reasonable attorneys' fees. Any late charge and/or interest chargeable under the Agreement will only apply if permitted by applicable law and if not permitted by applicable law, late charges and/or interest will be calculated at the maximum rate allowed by such law.
c. MAINTENANCE & SUPPORT Maintenance and support service plans are available for separate purchase. Plans that include Customer Service will provide Client with support, Monday through Friday, from 7am-6pm, CST, excluding holidays. Support may be rendered by voice, email or remote electronic connection to Client's installation.
d. HIPAA BMX and Client agree to comply with all HIPAA requirements for protecting PHI. BMX and Client agree to enter into such additional agreements as may be reasonably requested by either Party hereto to confirm compliance with the provisions of HIPAA. Client acknowledges that BMX has access and commercial rights to all de-identified information, per HIPAA guidelines, arising from the Agreement for BMX business purposes.
e. REIMBURSEMENT Insurance reimbursement rates represented by BMX are for estimating purposes and have been obtained from sources deemed reliable and are based on current published Medicare guidelines. Reimbursement rate modifications, variations in reimbursement practices from jurisdiction to jurisdiction, and reimbursement practices applied by non-Medicare payment sources are beyond the control of BMX, however, so that actual reimbursement rates and practices available to Client may vary from those used as examples. Client is therefore responsible for the final determination on all matters involving reimbursement.
f. LIMITATION It is understood that the obligations of BMX hereunder are subject to the prompt performance by Client of its obligations under this Agreement, including finance and/or other agreements entered into in conjunction therewith. In the event of a delinquency in payment or other default by Client, the obligations of BMX hereunder may be suspended until such time as such delinquency or default has been effectively cured. No claim of set off related to an Agreement shall be available to Client or in any way work to defer or mitigate the obligations of Client to make payments, including finance or lease contracts entered into in conjunction with an Agreement.
g. GOVERNING LAW All Agreements shall be governed by the laws of the State of Minnesota (without regard to its choice of law principles or rules) in the United States and the applicable laws of the United States. For the purpose of resolving conflicts related to or arising out of an Agreement, the parties expressly agree that venue shall be in the federal and state courts in the State of Minnesota, and, in addition, the parties hereby expressly consent to the exclusive jurisdiction of the federal and state courts in the State of Minnesota. The parties specifically disclaim application of the United Nations Convention on the International Sale of Goods, 1980.
h. CONTRACT CANCELLATION Client may cancel an Agreement within 30 days of the purchase of a PADnet device for a cancellation fee equal to 25% of the original Purchase Price. In order to be eligible for product return, the product must be returned to BMX in as good condition as when Client received it, except for ordinary wear and tear, at the address shown on the Agreement or any other place in the United States that BMX determines. Client will pay all expenses of de-installing, crating and shipping, and Client will insure the product for its full replacement value during shipping. If third party financing is provided on Client's behalf, this return addendum is considered void.
i. TAXES AND FEES Client will pay when due, either directly or to BMX upon demand, all taxes, fines and penalties relating to an Agreement or product that are now or in the future assessed or levied by any state, local or other governmental authority. If BMX files personal property, rents, sales, use or other tax returns, Client agrees to reimburse BMX and to pay BMX a fee for making such filings. BMX does not have to contest any taxes, fines or penalties. Client will pay, if applicable, estimated property taxes with each payment due or periodically, as invoiced. Client acknowledges that BMX has not provided Client with any tax or accounting advice regarding the tax or accounting treatment of any transaction.
j. CREDIT INFORMATION Client authorizes BMX or any of our assigns to obtain credit bureau reports, and make other credit inquiries that BMX determines are appropriate at our sole discretion.
k. CREDIT DISCLOSURE The Federal Equal Credit Opportunity Act prohibits creditors from discriminating against credit applicants on the basis of race, color, religion, national origin, sex, marital status, age (with certain exceptions); because all or part of the applicant's income derives from any public assistance program; or because the applicant has in good faith exercised any right under the Consumer Credit Protection Act. The federal agency that administers compliance with this law concerning this creditor is Office of Thrift Supervision, Regional Director, Midwest Region, P.O. Box 619027, Dallas/Fort Worth, TX 75261-8027.
l. LIMITED PRODUCT WARRANTY All products supplied to Client, unless otherwise specified in writing, will be subject to the following Limited Product Warranty:
i. Unless otherwise specified in writing, all diagnostic device products manufactured by BMX are guaranteed to be free from defects in material and workmanship for a period of 1 year from date of purchase. All supplies and system components carry a 90-day limited warranty. If in the judgment of BMX the product is proven to be defective during the warranty period it will be repaired or replaced with no charge for parts or labor.
ii. This warranty does not cover any product, which has been damaged by accident, misuse, abuse or has been altered or repaired by anyone other than an authorized BMX agent. This warranty also does not cover any product that has had the serial number removed, defaced or rendered illegible.
iii. This warranty does not apply to computers, printers, monitors, or other third party products which may be supplied by BMX for use with BMX products. Computers, printers, monitors, and other third party products are covered by separate warranties provided by the original equipment manufacturers. The details of these warranties, including registration and extended protection options are included with each computer, printer, monitor, or other third party product.
iv. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS AND IS HEREBY LIMITED TO REPAIR OR REPLACEMENT OF PRODUCTS FOUND DEFECTIVE DURING THE WARRANTY PERIOD. AN AUTHORIZED BMX AGENT MUST MAKE ALL REPAIRS. PRODUCTS SENT BY MAIL OR COMMON CARRIER SHOULD BE INSURED AGAINST LOSS OR DAMAGES, AS SUCH LOSS OR DAMAGES ARE NOT COVERED BY THIS WARRANTY.
v. In-Warranty Service: All freight charges incurred in shipping product to BMX for in-warranty service work are to be paid by BMX. Return freight charges for in-warranty service work are to be paid by BMX and returned to Client via the same method product was received. Client must obtain a Return Materials Authorization (RMA) from the BMX Customer Service Department and perform a data backup prior to shipping.
vi. Non-Warranty Service: Client shall be responsible for costs of shipping, repairs and/or replacement of systems or system components not covered by the Limited Product Warranty. In the event that any product sent to BMX for repair is found to be operational within the described specifications, then Client shall pay to BMX $150 per product as an inspection and testing fee payable immediately upon invoicing. All non-warranty servicing of products performed by BMX, at the request of Client, shall be billed to Client at BMX standard hourly rates and charges in effect at the time such servicing is performed along with any freight charges incurred in returning the product to Client. The current standard service rate is $150 per hour.
vii. Client is responsible for backing up data prior to returning product to BMX. BMX assumes no liability for lost data during repair.
m. LOANER DEVICE If Client is provided a loaner device due to their device malfunctioning, Client must return the malfunctioning device to BMX within 30 days of being emailed the return shipping label. If Client fails to ship malfunctioning device to BMX within 30 days of being emailed the return shipping label, Client agrees to pay $18,000 for new PADnet device. When Client receives repaired PADnet device back from BMX, Client must return loaner device to BMX within 30 days of being emailed the return shipping label. If Client fails to ship loaner device to BMX within 30 days of being emailed the return shipping label, Client agrees to pay $18,000 for new PADnet device.
n. DISCLAIMERS AND LIMITATION OF LIABILITY Notwithstanding any other provisions, neither BMX nor Client shall be liable for incidental, indirect, special, exemplary, punitive or consequential damages including, but not limited to, lost profits, savings or revenues of any kind, whether or not such party has been advised of the possibility of such damages. In addition, aggregate liability of BMX from any cause whatsoever shall not in any event exceed the sum of payments received by BMX from Client for goods or services rendered.
o. MISCELLANEOUS Client authorizes BMX to insert into an Agreement or other appropriate documentation of our choice the serial number(s) of products. If BMX delays or fails to enforce any of our rights, we will still be entitled to enforce those rights at a later time. If a court finds any provision of an Agreement unenforceable, Client agrees that the rest of the Agreement will still be enforceable. All BMX rights and indemnities will survive the termination of an Agreement. If Client does not perform any of its obligations, BMX has the right, but not the obligation, to take any action or pay any amounts that we believe are necessary to protect our interests. BMX shall not be in breach of an Agreement in the event we are unable to perform any of our obligations under the Agreement as a result of natural disaster, fire, weather, war, terrorism, emergency conditions, labor strife, the inoperability of the Internet, the inability to obtain supplies, or other reasons or conditions beyond our reasonable control. All Agreements have been prepared in English, and English is the controlling language with respect to all matters concerning BMX Agreements. Any and all notices or communications must be in English. Injunctive or other equitable relief shall be a remedy available to BMX in the event of a breach of any provision by the Client; but such remedy shall not be the exclusive remedy available to BMX. Regardless of any statute or law to the contrary, any claim or cause of action Client may have that arises out of, or is related to an Agreement must be filed within two (2) years after such claim or cause of action arose or be forever barred. Any notices required or permitted to be given to BMX shall be sufficient if in writing and personally delivered, sent by certified mail, or sent by express courier (by nationally recognized courier) to: BioMedix®, 860 Blue Gentian Road, Suite 180, St. Paul, Minnesota 55121. Any notices required or permitted to be given to Client shall be sufficient if sent by email to the email address provided by Client, or by regular mail at the address provided by Client or at the address maintained by BMX within the Client's account. Client shall not, without the prior written consent of BMX, assign its rights or delegate its duties. The waiver of any provision or the breach of any provision by BMX shall not be effective unless made in writing. Any waiver by BMX of any provision or the breach of any provision shall not operate as or be construed to be a continuing waiver of the provision or the breach of the provision. In the event Client initiates any action against BMX and Client does not substantially prevail in such action, Client shall be liable for the reasonable attorneys' fees incurred by BMX in connection with such action.
SECTION 2. PADNET PRODUCTS & SERVICES
a. HARDWARE DELIVERY Delivery of PADnet products shall be made to the address of Client indicated in the Agreement.
b. TERM Except to the extent (if any) otherwise provided in this Agreement, the Service Plan of this Agreement will be automatically extended, unless either party gives the other notice of non-extension at least three months before the then-current expiration date. The same billing arrangements will apply (e.g. if a credit card was used for the initial transaction, the same credit card will be charged on the expiration date). Please contact firstname.lastname@example.org for a complete description of this service plan as well as other service plan options.
c. ACTIVATION, INSTALLATION AND TRAINING When applicable (training is often sold separately) and in consideration of Client's agreement to comply with the terms provided, BMX will assign a Clinical Specialist to provide no less than 2 hours of training for the designated personnel of Client in the use of the PADnet product. Training shall take place at a mutually agreeable time following a) execution of an Agreement, b) payment of all amounts which may be due prior to installation and c) execution of an Agreement and financing documents if applicable. Any complimentary training included with the purchase of a PADnet product must be performed within 30 days of Product shipment. If the complimentary training is not utilized within 30 days of Product shipment, Client will be required to pay for any requested training. Any PADnet Service included with the initial purchase will begin on the Effective Date.
d. SOFTWARE MAINTENANCE AND SUPPORT During the initial term detailed in the Agreement, BMX will license to Client PADnet software updates at no additional charge. Client will be provided with support as detailed in Section 1 General (Maintenance and Support) of these Terms and Conditions.
e. CLIENT RESPONSIBILITY Onsite service calls are not included, but will be made available to Client at additional cost. Onsite service charges are billed out in one day increments at a rate of $1,550 per training session plus out-of-pocket expenses . These rates will be honored for the initial term of the Agreement. Client shall remain responsible for maintaining Internet access and support services related thereto. Client will not modify the PADnet product or software without the prior written permission of BMX. As used herein, modification includes installation of non-BMX approved applications. BMX will not be responsible for maintaining Client modified PADnet product or software. BMX recommends that Client install virus protection and use dedicated computers and Internet access exclusively for PADnet testing. BMX bears no responsibility for service interruption or corrupted PADnet data due to circumstances beyond our control, including, but not limited to, computer viruses, use of the PADnet computer for non-PADnet activity and/or interruption of Client provided Internet access service.
f. WEBSITE During the term of this Agreement, BMX will maintain PADnet data warehousing and Web site for facilitating the transmission of test data and impressions between Client and a designated vascular specialist. Protected Health Information ("PHI") transmitted using this site will be maintained by BMX according to HIPAA rules, regulations and guidelines.
Lease Agreements shall commence on the Agreement Date and the Term will begin thirty (30) days from the Ship Date. Client shall pay BMX Lease Payments as noted on the Agreement by the first day of each calendar month during the Term of the Agreement. The first and last Lease Payment shall be paid by Client to BMX at the time of signing the Agreement.
At the end of the Agreement Term, if Client is not in default and an alternative arrangement has not been agreed to in writing, the Lease Equipment can be purchased for $1,000. This buyout arrangement excludes Rental Agreements.
In the event Client fails to make a Lease Payment within ten (10) days of its due date or otherwise violates the provisions of the capital lease agreement, BMX may exercise all of the rights of a secured lender and terminate a Lease Agreement including, without limitation, obtaining a return of the Lease Equipment. In the event of termination, Client shall remain obligated for the unpaid Lease Payments which shall immediately accelerate and be due and payable. Client 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.
SECTION 3. NOTICE OF PRIVACY PRACTICE
a. HOW WE MAY USE AND DISCLOSE PHI ABOUT YOUR PATIENTS If a Customer contacts us with a request to access archived tests that are no longer available through our secure website, and the Customer’s account is in good standing, we will seek to locate the archived tests from our secure offline data warehouse and provide them to the Customer. If anyone else, including the patient, contacts us for PHI, we will refer them to contact the relevant Covered Entity for that information.
b. CHANGES TO THIS NOTICE We reserve the right to change this Notice. We reserve the right to make the revised or changed Notice effective for health information we already have about you as well as any information we receive in the future. We will post a copy of the current Notice in the Terms & Conditions page of our website.
c. COMPLAINTS If you believe your privacy rights have been violated, you may file a complaint with Biomedix or with the Secretary of the Department of Health and Human Services. To file a complaint with Biomedix, contact Biomedix, Attn: Michael Hawks, 860 Blue Gentian Road, Suite 180, St. Paul, Minnesota 55121. All complaints must be submitted in writing. You will not be penalized for filing a complaint.
d. REPORTING If you believe your account security has been compromised, you have a responsibility to report the incident to Biomedix. To file a report with Biomedix, contact Biomedix, Attn: Michael Hawks, 860 Blue Gentian Road, Suite 180, St. Paul, Minnesota 55121. All complaints must be submitted in writing, please download and fill out the Security Incident Response form. You will not be penalized for filing a report, and may submit a report anonymously.