Terms & Conditions | Sound Imaging Inc. - Sound Imaging Inc.

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Property of Sound Imaging

These “Terms & Conditions” are offered to you by Sound Imaging, Inc. 7580 Trade St, San Diego, CA 92121, U.S.A. (“SI”).

Acceptance of Terms & Conditions

By purchasing parts and/or accepting the product(s) you agree to be legally bound by all of the Terms & Conditions contained or referenced herein or further specified in your executed agreement. If you do NOT agree to all of these terms, you should NOT purchase any parts from Sound Imaging, Inc.

Modification of Terms

These Terms & Conditions may be changed by SI from time to time, and without actual notice to you, unless you have a separate signed agreement. Any such amended Terms & Conditions shall be effective upon posting. You are advised to regularly review any applicable Terms & Conditions.

Parts Limited Warranty Policy

All parts, unless stated otherwise, are shipped with a 30-day limited warranty against material defect. This limited warranty is provided in lieu of any other warranties, express or implied, including any implied warranty of fitness or use. The warranty expressly excludes any malfunctions, failures or other problems caused by or related to improper installation, use or maintenance, installation or use in an environment or at a site not in compliance with original equipment manufacturer ("OEM") specifications, or other circumstances and conditions that failure to comply with OEM specifications. The warranty is limited to repair or replacement of the defective part, or refund of the purchase price for such part, at SI's (SI) option. Any warranty claim must be made, by written notification to SI within 30 days of shipment of the defective part from SI to Client. Any defective part subject to a warranty claim must be received by SI within 14 days of provision of written notification of the warranty claim; otherwise, Client will be billed the replacement part price, in addition to the full price of the item not promptly returned. All Cold-heads are subject to inspection. Warranty is void if contamination is found. If Client fails to pay within time frame referenced on invoice, all warranties will be considered null and void. In the rare instance any warranty claim is issued, it is the sole responsibility of the Client to pay for (1) the shipping of the replacement part from SI to the specified shipping location provided by the Client and (2) the shipping of the defective part from the original location listed on the Purchase Order (PO) to Sound Imaging, Inc. 7580 Trade St, San Diego, CA 92121. Credits are non-refundable and may only be applied for future purchases. Limited warranty on parts are 30 days and for coils are 60 days, unless specified in writing. Any Part that has been opened or tampered with will void any and all warranties.

Repair and Limited Warranty Policy

All parts, coils and boards are repaired and tested according to OEM specifications using propriety techniques of SI and its agents. However, if the Client wishes to have the repaired item to be tested on a live system, there would be extra expenses and cost. (This option may not be available for all repairs.) All parts, coils and boards repaired are shipped with a 60-day warranty against the RMA information. All repairs are to be paid in advance, before shipping. Shipping cost is always responsibility of the Client. Client has to notify SI as to the status of the repaired part if DOA within 5 days of receipt of the part. Any defective part subject to a warranty claim must be received by SI within 5 days of provision of written notification of the warranty claim.

The warranty expressly excludes any malfunctions, failures or other problems caused by or related to improper installation, use or maintenance, installation or use in an environment or at a site not in compliance with original equipment manufacturer ("OEM") specifications, Mobile systems (unless proof of power survey in compliance with OEM) or other circumstances and conditions that failure to comply with OEM specifications. The warranty is limited to repair or replacement of the defective part, or refund of the purchase price for such part, at SI's (SI) option. Any warranty claim must be made, by written notification to SI within 30 days or within the warranty period of shipment of the defective part from SI to Client. Any defective part subject to a warranty claim must be received by SI within 14 days of provision of written notification of the warranty claim. Any Part that has been opened or tampered with will void any and all warranties.

Parts Limited Warranty Policy

All parts, unless stated otherwise, are shipped with a 30-day limited warranty against material defect. This limited warranty is provided in lieu of any other warranties, express or implied, including any implied warranty of fitness or use. The warranty expressly excludes any malfunctions, failures or other problems caused by or related to improper installation, use or maintenance, installation or use in an environment or at a site not in compliance with original equipment manufacturer ("OEM") specifications, or other circumstances and conditions that failure to comply with OEM specifications. The warranty is limited to repair or replacement of the defective part, or refund of the purchase price for such part, at SI's (SI) option. Any warranty claim must be made, by written notification to SI within 30 days of shipment of the defective part from SI to Client. Any defective part subject to a warranty claim must be received by SI within 14 days of provision of written notification of the warranty claim; otherwise, Client will be billed the replacement part price, in addition to the full price of the item not promptly returned. All Cold-heads are subject to inspection. Warranty is void if contamination is found. If Client fails to pay within time frame referenced on invoice, all warranties will be considered null and void. In the rare instance any warranty claim is issued, it is the sole responsibility of the Client to pay for (1) the shipping of the replacement part from SI to the specified shipping location provided by the Client and (2) the shipping of the defective part from the original location listed on the Purchase Order (PO) to Sound Imaging, Inc. 7580 Trade St, San Diego, CA 92121. Credits are non-refundable and may only be applied for future purchases.

Repair and Limited Warranty Policy

All parts, coils and boards are repaired and tested according to OEM specifications using propriety techniques of SI and SI and its agents. However, if the Client wishes to have the repaired item to be tested on a live system, there would be extra expenses and cost. (This option may not be available for all repairs.) All parts, coils and boards repaired are shipped with a 60-day warranty against the RMA information. All repairs are to be paid in advance, before shipping. Shipping cost is always responsibility of the Client. Client has to notify SI as to the status of the repaired part if DOA within 5 days of receipt of the part. Any defective part subject to a warranty claim must by received by SI within 5 days of provision of written notification of the warranty claim.

The warranty expressly excludes any malfunctions, failures or other problems caused by or related to improper installation, use or maintenance, installation or use in an environment or at a site not in compliance with original equipment manufacturer ("OEM") specifications, or other circumstances and conditions that failure to comply with OEM specifications. The warranty is limited to repair or replacement of the defective part, or refund of the purchase price for such part, at SI's (SI) option. Any warranty claim must be made, by written notification to SI within 60 days of shipment of the defective part from SI to Client. Any defective part subject to a warranty claim must be received by SI within 14 days of provision of written notification of the warranty claim.

Accessories

SI will not warranty any defects on SAMM System and/or MRI Stereo Sound System unless installed by SI personnel. Installation by a third party of ANY and ALL Accessories voids the 1-year warranty offered by SI. SI services will be charged at a rate of $250.00 per engineer per hour and all parts required will be priced at 30% off Manufacturer Pricing. SI employee travel will be charged at a rate of $195.00 per engineer per hour. SI Auxiliary Time will be charged at a rate of $250.00 per engineer per hour. Sound Imaging reserves the right to sell products and services directly to government agencies. Under no circumstances shall a distribution channel, client, individual, company, organization, planning group have the expressed or implied authority to distribute Sound Imaging products, services, installation packages directly to including but not limited to government facilities, government contract, government solicitations, government hospitals, governments projects. Doing so would be in violation of Sound Imaging distribution policies and considered gray market sales in violation of federal government contracting policies and solicitation practices.

Exchange Policy

For all exchanges, the exact part, in repairable condition, must be shipped back to SI unless otherwise agreed upon in writing prior to shipping. The exchange part must be received by SI within 14 days from the initial shipment date from SI to Client; otherwise, Client will be billed the exchange part price, in addition to the full price of the exchange item not promptly returned. 
If the part Client sends to SI is not the exact part, i.e the part number of the part SI does not exactly match the exchange/return part, or is not in repairable condition, SI will refuse the part and it will be shipped back to the prior location that is listed on the shipping label. Upon Client receipt of the returned part, Client will have 5 days to ship back to SI the exact, repairable part; otherwise, Client will be charged the full price of the part not promptly returned, in addition to the price of any exchange part.
SI, at its own discretion, may decide to either issue an RMA with a fixed 20% cost of original invoice, or invoice outright pricing for parts not returned within 14 days. If Client does not return part within 14 days, Client will be charged 10% per additional late fee. If part is not returned or returned later than 45 days, full price will be billed to Client for said part.
Unless approved by SI in writing, parts cannot be restocked after 14 days.

Parts and Repair Limited Warranty Policy

All parts, coils, and boards are bench tested prior to shipment. If customer fells part is DOA, customer needs to notify SI as soon as possible and no later than 5 days of receipt of the part. Any defective part subject to a warranty claim must be received by SI 5 days of provision of written notification of warranty claim for evaluation. Customer is advised to contact SI as soon as possible for issuance of RMA. SI shall evaluate the status and will inform the customer as the status of the DOA. SI may at its own discretion, ship a warranty replacement, apply credit, or refund the money back to the customer, if the part is verified to be DOA.

Dead on Arrival (D.O.A.) Parts Policy

If in the event Client receives a Dead on Arrival (D.O.A.) part, Client must notify SI in writing within 3 days of receipt of such part. Thereafter, the D.O.A. part must be returned to SI within 14 days of provision of such written notice to SI; otherwise, Client will be billed any replacement part price, plus the full price of the item not promptly returned. Client must obtain a RMA number from SI before Client may return the unused part. No part will be accepted by SI without an RMA number.

All parts, coils and boards are repaired and tested according to OEM specifications using propriety techniques of SI and its agents. However, if the Client wishes to have the repaired item to be tested on a live system, there would be extra cost. (This option may not be available for all repairs.) All parts, coils and boards repaired are shipped with a 60-day warranty against the RMA information. All repairs are to be paid in advance, before shipping. Shipping cost is always responsibility of the Client. Client has to notify SI as to the status of the repaired or sold part if DOA within 5 days of receipt of the part. Any defective part subject to a warranty claim must by received by SI within 5 days of provision of written notification of the warranty claim. Since the parts are tested prior to shipping, SI engineers have to determine how the part has become DOA. Once established that the part has been DOA prior to shipping, SI at its own discretion may repair or credit the Client.

Restock Parts Policy

If a part shipped to Client by SI is unused, Client must obtain a RMA number from SI before Client may return the unused part. No part will be accepted by SI without an RMA number. Any parts being returned to SI as restock must be returned within 14 days from initial shipment date.
The following restock charges will apply: Unopened: 20% and Opened: 30%

Shipping Policy

The Buyer shall be responsible for all duties, taxes, interest, and other charges due on purchased items and it is highly recommended that Insurance for the item be obtained from the Freight Company, or from an independent insurance provider. Any damages that occur during shipping / transportation of the item purchased or to the exchange “core” item is the responsibility of the Buyer and will be invoiced by SI accordingly. The purchased item and/or exchange “core” item is the property and responsibility of the Buyer upon leaving SI’s premises.

Hold Harmless

SI is not responsible for any lost or damaged items of or pertaining to coil repairs, loaner coils, or parts repair. Client takes full responsibility for item sent to SI. When sending equipment to SI, please note the serial number of all equipment prior to shipment. Warranty will be voided unless parts are installed by a factory trained OEM engineer.
Client solely assumes all liability and shall indemnify SI and/or its Vendors, including Linde LLC, for any damages, whether direct, indirect, consequential, special, or incidental, including any costs of litigation (e.g., attorney fees, discovery costs, etc.), resulting from any occurrence arising in connection with Cryofill Services performed under the above conditions. 
SI does not assume responsibility for any third party equipment being stored at SI. It is the Third Parties sole responsibility to provide maintenance to its own equipment. SI is not responsible for any theft, damage, or malfunctions to the equipment while it is stored at its facilities. There is a minimum charge of $100 per day for any MRI magnet stored at SI for electricity usage, unless it is waived by SI in writing.

Payment Terms on Parts and Repair

Buyer is responsible for payments as mutually agreed upon, or as defined in a Purchase Order. All payments must be made via credit card, company check, certified funds or wire transfers to SI, at SI's discretion. Payment due dates are based off of the day the part leaves SI's facility. After 30 days, or per Credit Card Application, if payment is not received, there will be a fixed 12% service charge on any amounts due to SI for any parts and/or services provided, or the maximum amount allowed by law. In the event that the unpaid balance goes to collections, Buyer will be responsible for all costs associated with collections, including but not limited to attorney fees incurred. If for any reason a check is returned for insufficient funds, there will be a charge of $250.00 per returned check.

Confidentiality

The Terms & Conditions of your agreement are confidential and shall not be disclosed except as necessary to the performance of this agreement or as required by law. SI’s communications with prospective purchasers are to be handled exclusively through SI unless otherwise directed by SI in writing. SI agrees to limit any discussions during inspection or in the course of due diligence to technical or logistical issues, and further expressly agrees to NOT discuss any financial issues with prospective purchasers. All discussions regarding technical issues, extensions and course of due diligence has to be in writing and agreed by both parties.

Limitation of Liability

The parties agree that SI shall not be liable for any losses, damages, or injuries sustained, or claimed to be sustained, as the result of the operation, non-operation, malfunction or use of the Equipment, or the provision of medical services utilizing the Equipment. Furthermore, SI shall not be liable or responsible for any loss, damages or impairment to the Equipment that may occur during the de-installation, rigging, transportation, installation or ramp up of the Equipment, unless caused by SI's gross negligence or willful misconduct. Client agrees to inspect shipping package for shock-watchers, tilt-watches, or other sensory devices, as applicable, and notify SI immediately if package is damaged. Failure to do so will hold harmless SI for any D.O.A or other warranty claim. SI shall not be liable for any Equipment failures or malfunctions caused by Client's failure to provide an installation facility compliant with all OEM specifications for the Equipment. In no event shall SI's total liability in damages or otherwise exceed the total of the payments, if any, received by SI from Client for the services furnished or to be furnished pursuant to the Agreement. In no event shall SI be liable for incidental, consequential, indirect, punitive or special loss or damages of any kind, such as but not limited to lost business revenue, lost profits or costs of downtime, however caused, whether based on contract, tort (including negligence) or any other legal theory. SI assumes no responsibility whatsoever for any matters relating to Equipment calibration and use. Client hereby agrees to indemnify hold harmless and defend through counsel of SI's choice SI and its respective officers, employees, agents, representatives, and their respective successors and assigns from and against any and all loss, liability, damages, claims, causes of action, costs, and expenses, including but not limited to property damage, bodily injury, attorney's fees and any other types of liability, whether accrued, absolute, contingent or otherwise, arising out of or related to the ownership, use, or misuse of any of the Equipment at any time. SI specifically and expressly disclaims any express or implied warranties of fitness, merchantability, or suitability whatsoever. Limitation of Liability.

SOUND IMAGING INC. IS NOT RESPONSIBLE FOR ANY FAILURES OR DELAYS IN PERFORMING UNDER THIS AGREEMENT THAT ARE DUE TO EVENTS OUTSIDE OF ITS REASONABLE CONTROL. TO THE MAXIMUM EXTENT PERMITTED BY THE LAW, THE STATE OF CALIFORNIA, SOUND IMAGING INC. AND THEIR OFFICERS, AGENTS, AND EMPLOYEES WILL UNDER NO CIRCUMSTANCES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM THE PERFORMANCE OR OMISSION OF ANY REPAIR SERVICES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE; LOSS OF ACTUAL OR ANTICIPATED PROFIT (INCLUDING LOSS OF PROFITS ON CONTRACTS); LOSS OF REPUTATION; LOSS OF OPPORTUNITY; LOSS OF USE OF MONEY; LOSS OF ANTICIPATED SAVINGS; LOSS OF BUSINESS; LOSS OF OPPORTUNITY; LOSS OF GOODWILL; LOSS OF REPUTATION; LOSS OF, DAMAGE TO, OR CORRUPTION OF DATA; OR ANY COSTS OF RECOVERING, PROGRAMMING, OR RESTORING ANY PROGRAM OR DATA STORED ON YOUR PRODUCT OR ANY FAILURE TO MAINTAIN THE CONFIDENTIALITY OF DATA STORED ON YOUR PRODUCT. SOUND IMAGING INC. SPECIFICALLY DOES NOT WARRANT THAT IT WILL BE ABLE TO (1) REPAIR OR REPLACE YOUR PRODUCT WITOUT RISK TO OR LOSS OF PROGRAMS OR DATA, OR (2) MAINTAIN THE CONFIDENTIALITY OF DATA. IF ANY PRODUCT SHOULD BE DAMAGED OR LOST WHILE IN SOUND IMAGING’S CUSTODY, SOUND IMAGING’S LIABILITY WILL BE LIMITED TO THE COST OF REPAIR OR REPLACEMENT OF THE AFFECTED PRODUCT. OTHERWISE SOUND IMAGING’S LIABILITY FOR ANY AND ALL DAMAGE SHALL IN NO EVENT EXCEED THE PAYMENTS RECEIVED BY SOUND IMAGING INC. FOR SERVICES PROVIDED PURSUANT TO THESE TERMS. THE REMEDIES SET FORTH HEREIN SHALL BE YOUR SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH BY SOUND IMAGING INC. UNDER THESE TERMS AND CONDITIONS.

Dispute Clause

All sales transactions are governed by California law. Any disputes arising out of or related to sales of equipment shall be brought exclusively in the state or federal courts located in San Diego, California. The parties consent and submit to personal jurisdiction and venue in the state or federal courts located in San Diego, California.
If SI is required to institute legal proceedings to collect any sums due as a result of sales transaction, the prevailing party in any such proceeding shall be entitled to recover its reasonable attorney fees and costs incurred.

Severability

If any term, provision, covenant, or condition of the Agreement, or the application thereof, is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the rest of the Agreement shall remain in full force and not invalidated, and application of such provision(s) to persons, entities, or circumstances shall be interpreted so as best to reasonably effect the intent of the Parties.

Headings

The headings of the sections of the Terms & Conditions are used for convenience purposes only and shall not constitute a part hereof or affect in any way the meaning or interpretation of the Terms & Conditions.

SI EQUIPMENT PURCHASE AGREEMENT

TERMS & CONDITIONS

These “Terms & Conditions” are offered to you by Sound Imaging, Inc. 7580 Trade St, San Diego, CA 92121, U.S.A. (“SI”).

Acceptance of Terms & Conditions

By purchasing Equipment you agree to be legally bound by all of the Terms & Conditions contained or referenced herein or further specified in your executed Purchase agreement. If you do NOT agree to all of these terms, you should NOT purchase any equipment from Sound Imaging, Inc.

Modification of Terms

These Terms & Conditions may be changed by SI from time to time, and without actual notice to you, unless you have a separate signed agreement. Any such amended Terms & Conditions shall be effective upon posting. You are advised to regularly review any applicable Terms & Conditions.

Sale

SI agrees to sell (BASED ON AVAILABILITY) and Buyer agrees to purchase from the SI the equipment listed on Equipment Purchase Agreement in accordance with the Terms & Conditions specified herein. Buyer’s ability to acquire financing shall not impact the enforceability of this Agreement, unless specified in the Purchase Agreement. All sales are As-Is, Where Is, Unless SI has agreed to installation, service/or warranty for that particular Purchase Agreement. Please check “Inspection Terms” in terms and conditions if inspection term clause is in the Purchase Agreement of Equipment.

Marketing

SI reserves the right to utilize logo’s associated with partners, customers & vendors who have conducted business with SI on all marketing, social media, website and platforms at SI’s discretion.  SI also reserves the right to publish testimonials from partners, customers & vendors on all marketing, social media, website and platforms at SI’s discretion.  At no time shall any revenue generated from these marketing efforts, testimonials, logos, cross-branding, etc. be due back to partners, customers & vendors.  SI shall not need to receive a release from partners, customers & vendors in order to utilize testimonials, logos, etc. however may choose to do so at their own discretion.

 

Equipment Availability

In the event, that due to circumstances beyond the control of SI, the equipment is not available on the contracted date, then the SI cannot be held liable. In the event the actual equipment quoted is not available, SI reserves the right to void the Purchase Agreement and return any deposits. SI’s obligation under the Purchase Agreement are subject to equipment availability., which shall be determined at SI’s own discretion. The Equipment is being sold as is, where is.

Deposit Terms

Buyer agrees to send an agreed upon deposit to SI within twenty-four (24) hours of the execution of Equipment Purchase Agreement, via bank wire transfer or certified company check. Until a deposit and signed contract is received, the Equipment listed in the Equipment Purchase Agreement is subject to sale.

Inspection Terms

Buyer is strongly urged to inspect the equipment listed in the Equipment Purchase Agreement. Buyer will be given one (1) week from presentation of Equipment Purchase Agreement to arrange to inspect the equipment listed in the Purchase Agreement at a time and place approved through SI. If Buyer elects not to inspect or fails to inspect the Equipment mentioned in the Equipment Purchase Agreement within the time period set forth in the agreement, shall be deemed a waiver of the Buyer’s right to inspection and an acknowledgment that the Equipment conforms to the Agreement. Upon a timely inspection, if Buyer determines that the Equipment fails to conform to the Agreement, Buyer shall notify SI in writing within 24 hours after inspection specifying the non-conformity. SI, at its own discretion may: a) offer an adjustment to the price and/or terms of sale to Buyer, and Buyer’s acceptance of the proposal shall be subject to the terms and conditions of this Agreement unless they are specifically adjusted: or (b) take reasonable steps to bring back the Equipment into conformity with the description in the Agreement, whereupon the parties obligations to complete the transaction under the Agreement will be unchanged; or(c) terminate the Agreement and refund all amounts previously paid to SI by Buyer, subject to any offsets allowed under the Agreement. Non-Response within 24 hours, the Equipment is considered approved and conformed to the agreement by the Buyer. All requests and discussion about logistics, non-conformities, extension, adjustments must be in writing and approved by both parties.Under no circumstances, Buyer can ask for more than the deposit monies with the SI. Upon conclusion of this Agreement, no other obligations or liabilities will exist between the parties under this Agreement. Unless there are warranty, installation and/or other obligations are in the Purchase agreement, the Equipment will become As-Is, Where Is.

Delay

If buyer fails or refuses to take possession of the equipment by an agreed upon date or for than three (3) days after the date such equipment is made available to Buyer, such failure is considered breach of contract by Buyer and SI at it’s option, do any or any combination of the following: (a) charge Buyer reasonable storage fees as a minimum of $450 per month for portable systems, $800 per month for fixed systems and a market price for systems on power and mobile systems with a minimum of $100 per day- Buyer is also responsible for cryogen costs during delays, and appropriate insurance, (b) terminate the agreement, and retain all deposits or other payments made by Buyer to compensate SI for cost associated with Buyer’s breach after 30 days. (b) demand immediate full payment, (c) de-install/remove/pick-up the Equipment at Buyer’s cost, (d) terminate the agreement, and retain all deposits or other payments made by Buyer to compensate SI for cost associated with Buyer’s breach after 30 days. Seller may, but is not required to, sell any equipment identified to the Purchase Agreement to another party to mitigate its damages resulting from Buyer’s breach after 30 days. Any amounts in excess of the purchase Price realized by SI upon sale of such equipment will remain the sole property of SI.

In case, SI has agreed to installation, service/or warranty obligations of any kind and Buyer fails or refuses to provide a room or space specific to OEM ready to accept equipment to be properly installed within thirty (30) days after the agreed on the Purchase Agreement, such failure will give the option to SI to not perform any installation, service and/or warranty obligations, making the sale an As-Is sale. Nothing herein is intended to limit any other remedies available to SI under applicable law as the result of Buyer’s breach of contract.

Installation and Service Agreement

If SI has agreed to perform installation or other services such as service or PM on Equipment, the terms of this section shall apply. Buyer agrees that the site will be ready for installation prior to the delivery date and Equipment available for service/repair. Buyer agrees to reimburse SI for the costs of any and all delays of the installation or services not caused by SI or SI’s agents, costs including but not limited to: (a) a minimum of $2,500 per day per each person that SI and SI agents are deployed but unable to work to complete the installation, and a minimum of $250 per hour for service and repair completion; (b)all travel rated at $100 per hour and cost associated with having to redeploy SI or SI agents; (c) Any additional transportation and storage charges for the Equipment if applicable and (d) any additional charges for requested return trips as well as legal and scheduling fees if apply. Buyer agrees to provide a qualified representative to certify the condition or availability of the work to be performed which meets the criteria of the Purchase or Service Agreement. If Buyer fails to provide a qualified representative or fails to provide SI with written notice of a problem with 72 hours, the Buyer agrees to conclusively waive any claims arising from the service and/or installation. Any warranty or service coverage will be null and void, if installation or service is delayed for any reason other than SI’s delay and the Equipment at Buyer’s site. Buyer is responsible for all Network connections to the equipment. Buyer is required to provide a qualified person familiar with the network configuration for the facility to work in conjunction with the installing engineer. Network connectivity will be tested by transmitting images over the Buyer’s Network. Subsequent service call for network issues will be extra charges to Buyer.

Disclaimer of Warranties

There are no express or implied warranties, including but not limited to any warranty regarding the accuracy of Equipment specifications or operability, nor are there any warranty of merchantability or fitness for a particular purpose. SI will not be held responsible for any licensing agreements/transferring of OEM software.

"First Scan Warranty” means that the Equipment shall operate at or above manufacturer’s specifications for image quality and performance at the time of delivery subject to Buyer’s obligations in this Agreement; however, this is not a warranty of future performance. Any other express warranty or service coverage contained in the Agreement is Limited and controlled by the then current Service Terms and Conditions of Sound Imaging parts and Services.

Confidentiality

The Terms & Conditions of your agreement are confidential and shall not be disclosed except as necessary to the performance of this agreement or as required by law. SI’s communications with prospective purchasers are to be handled exclusively through SI unless otherwise directed by SI in writing. SI agrees to limit any discussions during inspection or in the course of due diligence to technical or logistical issues, and further expressly agrees to NOT discuss any financial issues with prospective purchasers. All discussions regarding technical issues, extensions and course of due diligence has to be in writing and agreed by both parties.

Limitation of Liability

The parties agree that SI shall not be liable for any losses, damages, or injuries sustained, or claimed to be sustained, as the result of the operation, non-operation, malfunction or use of the Equipment, or the provision of medical services utilizing the Equipment. Furthermore, SI shall not be liable or responsible for any loss, damages or impairment to the Equipment that may occur during the de-installation, rigging, transportation, installation or ramp up of the Equipment, unless caused by SI's gross negligence or willful misconduct. Client agrees to inspect shipping package for shock-watchers, tilt-watches, or other sensory devices, as applicable, and notify SI immediately if package is damaged. Failure to do so will hold harmless SI for any D.O.A or other warranty claim. SI shall not be liable for any Equipment failures or malfunctions caused by Client's failure to provide an installation facility compliant with all OEM specifications for the Equipment. In no event shall SI's total liability in damages or otherwise exceed the total of the payments, if any, received by SI from Client for the services furnished or to be furnished pursuant to the Agreement. In no event shall SI be liable for incidental, consequential, indirect, punitive or special loss or damages of any kind, such as but not limited to lost business revenue, lost profits or costs of downtime, however caused, whether based on contract, tort (including negligence) or any other legal theory. SI assumes no responsibility and liability whatsoever for any matters relating to equipment calibration and use. Any pro-bono or unpaid work done by SI on any system, subsystem, suggestions and recommendation, delivery, removal, and free storage. Buyer hereby agrees to hold harmless and defend through counsel of SI’s choice, SI and its respective officers, employees, agents, representatives, and their respective successors and assigns from and against any and all loss, liability, damages, claims, causes of action, costs, and expenses, including but not limited to property damage, bodily injury, attorney's fees and any other types of liability, whether accrued, absolute, contingent or otherwise, arising out of or related to the ownership, use or misuse of any of the Equipment at any time from and after the date that Buyer or customer obtains the Equipment, Title, or delivery. SI specifically and expressly disclaims any express or implied warranties of fitness, merchantability, or suitability whatsoever. Limitation of Liability.

SOUND IMAGING INC. IS NOT RESPONSIBLE FOR ANY FAILURES OR DELAYS IN PERFORMING UNDER THIS AGREEMENT THAT ARE DUE TO EVENTS OUTSIDE OF ITS REASONABLE CONTROL. TO THE MAXIMUM EXTENT PERMITTED BY THE LAW, THE STATE OF CALIFORNIA, SOUND IMAGING INC. AND THEIR OFFICERS, AGENTS, AND EMPLOYEES WILL UNDER NO CIRCUMSTANCES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM THE PERFORMANCE OR OMISSION OF ANY REPAIR SERVICES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE; LOSS OF ACTUAL OR ANTICIPATED PROFIT (INCLUDING LOSS OF PROFITS ON CONTRACTS); LOSS OF REPUTATION; LOSS OF OPPORTUNITY; LOSS OF USE OF MONEY; LOSS OF ANTICIPATED SAVINGS; LOSS OF BUSINESS; LOSS OF OPPORTUNITY; LOSS OF GOODWILL; LOSS OF REPUTATION; LOSS OF, DAMAGE TO, OR CORRUPTION OF DATA; OR ANY COSTS OF RECOVERING, PROGRAMMING, OR RESTORING ANY PROGRAM OR DATA STORED ON YOUR PRODUCT OR ANY FAILURE TO MAINTAIN THE CONFIDENTIALITY OF DATA STORED ON YOUR PRODUCT. SOUND IMAGING INC. SPECIFICALLY DOES NOT WARRANT THAT IT WILL BE ABLE TO (1) REPAIR OR REPLACE YOUR PRODUCT WITOUT RISK TO OR LOSS OF PROGRAMS OR DATA, OR (2) MAINTAIN THE CONFIDENTIALITY OF DATA. IF ANY PRODUCT SHOULD BE DAMAGED OR LOST WHILE IN SOUND IMAGING’S CUSTODY, SOUND IMAGING’S LIABILITY WILL BE LIMITED TO THE COST OF REPAIR OR REPLACEMENT OF THE AFFECTED PRODUCT. OTHERWISE SOUND IMAGING’S LIABILITY FOR ANY AND ALL DAMAGE SHALL IN NO EVENT EXCEED THE PAYMENTS RECEIVED BY SOUND IMAGING INC. FOR SERVICES PROVIDED PURSUANT TO THESE TERMS. THE REMEDIES SET FORTH HEREIN SHALL BE YOUR SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH BY SOUND IMAGING INC. UNDER THESE TERMS AND CONDITIONS. SI’s total liability in damages or otherwise shall not exceed the payment, if any, resulting in the loss or damage claimed.

Dispute Clause

All sales transactions are governed by California law. Any disputes arising out of or related to sales of equipment shall be brought exclusively in the state or federal courts located in San Diego, California. The parties consent and submit to personal jurisdiction and venue in the state or federal courts located in San Diego, California.
If SI is required to institute legal proceedings to collect any sums due as a result of sales transaction, the prevailing party in any such proceeding shall be entitled to recover its reasonable attorney fees and costs incurred.

Severability

If any term, provision, covenant, or condition of the Agreement, or the application thereof, is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the rest of the Agreement shall remain in full force and not invalidated, and application of such provision(s) to persons, entities, or circumstances shall be interpreted so as best to reasonably effect the intent of the Parties.

Due Dates

Due dates are as defined in the quotation. In the event that Buyer fails to meet payment deadlines by more than 10 days, Buyer forfeits any moneys paid along with all claim or title in Equipment. Past due accounts are subject to a service charge of 1.5% per month, or the maximum allowed by law, whichever is less. In the event that the unpaid balance goes to collections, Buyer will responsible for all collections costs, including but not limited to attorney fees. If for any reason a check is returned for insufficient funds there will be a charge of $250.00 per returned check. Should the need arise, Buyer will also be responsible for court costs, attorney’s fees and other reasonable costs associated with the liquidation of merchandise. All certified funds payments are payable to Sound Imaging Incorporated care of Sunny Tabrizi at 7580 Trade St, San Diego, CA 92121.

Full Payment

If full payment is not received by specified date, SI has the right at its discretion liquidate said Equipment to recover any lost revenue and expenses incurred during the transaction after 30 days of non-payment. The contract will become null and void if the circumstance occurs.

Prior Sale

Equipment shall be subject to prior sale and the agreement shall in no way be binding upon SI until the required down payment and signed Quotation is received and accepted by SI. Acceptance is defined as being signed by SI and Buyer.

Headings

The headings of the sections of the Terms & Conditions are used for convenience purposes only and shall not constitute a part hereof or affect in any way the meaning or interpretation of the Terms & Conditions.

 

SERVICE AGREEMENT

TERMS AND CONDITIONS

Service Agreement

At initiation of this service Agreement hereunder, Customer will make the system available for Sound Imaging to inspect the equipment to determine if it is in proper working order and meets with the manufacturer’s specifications. Any deficiencies shall be identified to Customer. All such services and parts required shall be the responsibility of the Customer. Any deficiency affecting proper operation must be corrected. All service derived from deficiency, at any future date, will be customers’ responsibility.
Service During any Equipment product warranty period, service specified in the warranty will be provided by Sound Imaging in accordance with the warranty. However, Customer may choose one or more Coverage Services under this Agreement. After the Equipment product warranty period, service will be provided under Standard Coverage Service that may be supplemented with one or more Optional Coverage chosen by Customer. Standard and Optional Coverage will be provided during Sound Imaging’s standard work week. Monday through Friday, excluding our observed holidays, unless otherwise specified in the above “Coverage” sections.

Planned Maintenance

Planned Maintenance will be performed as specified by contract or mutual agreement between customer and Sound Imaging. Planned Maintenance service includes monitoring the level of cryogens (helium and / or nitrogen) within the magnet’s cryostat, based on Customer’s cryostat meter readings; Any electrical and hydraulic system inspection, CPUs and Software functionality test, magnetic tape and disc drive alignment, patient light and laser alignment, leakage current test and adjustment, power supply adjustment, mechanical interlock and assembly check, Equipment lubrication and filter replacement. Periodic system calibration tests and adjustments to achieve image and signal processing quality. This service relates to RF coil tuning, transceiver gain, phase adjustment, magnetic field homogeneity adjustment to the extent required by a Covered Component repair covered by this Agreement, eddy current calibration, gradient filed calibration and RF amplifier calibration. In addition, radio frequency power tests will be conducted to verify the accuracy of the RF Power Monitor. FCC testing and reporting will be conducted if required. Sound Imaging will provide Planned Maintenance service up to six (6) times each year, at a time within the Coverage hours that is mutually agreed to in advance. Customer shall provide Sound Imaging personnel full and free access to the Equipment at the scheduled maintenance times. The Maintenance will be forfeited if Customer does not provide Sound Imaging access to the Equipment at the agreed upon time and extra charges may apply.

Parts Coverage (If chosen by Customer)

Components that malfunction, are replaced as required on an exchange, refurbished or new part, basis. Replaced parts become Sound Imaging’s property and will be promptly removed by Sound Imaging personnel from the Site. Customer shall provide Sound Imaging personnel full and free access to the Equipment at the scheduled times. The Coverage will be forfeited if Customer does not provide Sound Imaging access to the Equipment at the agreed upon time.

Magnet Coverage (If chosen by Customer)

Any cryogen supply or cryogenic service, including without limitation cryogen recharge or replacement. Scheduling the delivery of and delivering cryogens in non-magnetic dewar containers to the Site. Transferring cryogens from the non-magnetic dewar containers to the Equipment’s cryostat. Performing cryostat vacuum re-pumping at intervals deemed appropriate by Sound Imaging. Performing magnetic field homogeneity adjustments to the extent required by a magnet ramping and / or Covered Component adjustment, repair or replacement. Customer shall provide Sound Imaging personnel full and free access to the Equipment at the scheduled times. The Coverage will be forfeited if Customer does not provide Sound Imaging access to the Equipment at the agreed upon time. This coverage has to be chosen and the necessary fees collected per month to be applicable.

Response Time

Measured as an average of all emergency calls and begins from receipt of call. Response time is as listed on face page. Phone response will be within 60-120 minutes, in most cases immediate. On site response will be NEXT DAY if the system is down hard and call has been placed to Sound Imaging after 1:00 PM PST, unless extended service Coverage hours are applicable. SI techs will do the best to be on site the same day. If the call has been placed after 1:00 PM PST. But it is not guaranteed.

Hourly Rate

Sound Imaging's hourly straight time rate for labor and travel applies to the hours of Monday through Friday from 8am-5pm and excludes holidays. Sound Imaging charges 1.5 times the standard rate on week nights and on Saturdays. Sundays are charged twice as much as the standard rate. 

Overtime Service

Subject to availability of personnel, Sound Imaging will provide, at Customer’s request and expense, service outside of Coverage hours chosen by Customer. The charges for service rendered shall be calculated based on primary coverage hourly rate (approx. $250/hr.). Overtime during weekdays and Saturday will be 1.5 times the normal rate. Overtime on Sundays and Holidays will be 2.0 times the normal rate. Customer will be charged a minimum of two hours per call. Other travel expenses and overnight living expenses will be charged at actual cost in accordance with Sound Imaging standards for business expense remuneration of its employees.

Observed Holidays

Sound Imaging’s observed holidays are as follows: New Year’s Day, Memorial Day, Independence Day, Labor Day, two (2) days for Thanksgiving (Thanksgiving and day after) and two (2) days for Christmas (Christmas Eve and Christmas Day). In the event that a holiday falls on Saturday, the holiday will be observed on the previous Friday. In the event that a holiday falls on Sunday, the holiday will be observed on the following Monday.

Customer Obligations

It is Customer obligation to properly choose the Service coverage on Service Agreement. Any coverage plans the Customer wishes to choose, has to be checked and fees to be properly applied. If the Customer has not checked specific option, SI will not be responsible to perform those services and Sound Imaging is not liable for the services not checked by Customer. Customer agrees to permit Sound Imaging representatives with prompt, unencumbered access to the Equipment. Customer must be able to demonstrate that the system is being consistently operated in accordance with the manufacturer’s specified requirements and procedures, that repair parts used meet applicable manufacturer specifications and that the standard system configuration has not been altered. Customer agrees that the site will be ready and Equipment will be available for service/repair. Buyer agrees to reimburse SI for the costs of any and all delays of the services not caused by SI or SI’s agents, costs including but not limited to: (a) a minimum of $250 per hour for service and repair completion; (b)all travel and cost associated with having to redeploy SI or SI agents; (c) Any additional transportation and storage charges for the Equipment if applicable. Customer must provide industry standard daily reports of the Equipment to Sound Imaging via online form, which will be provided by Sound Imaging on Exhibit A on the Agreement.

Payment Terms

The Total Contract Price is payable in advance in equal consecutive monthly installments, within ten (10) days of receipt of an invoice from Sound Imaging. Customer’s failure to make timely payment pursuant to this Agreement is a material breach, for which (in addition to other remedies) Sound Imaging may terminate this Agreement or suspend performance of its services hereunder until all past due amounts are brought current. If Sound Imaging suspends or terminates its services, Sound Imaging shall not be responsible for completion of the services, nor shall Sound Imaging be responsible for any consequence relating to the termination or suspension of such services. Any payment not made when due shall bear an Interest from the due date until paid at the rate of 1 1⁄2 % per month or the maximum rate permitted by law whichever is less. Customer will reimburse Sound Imaging for all costs (including actual attorneys’ fees) relating to collection of past due amounts.

Insurance

Customer shall provide and maintain insurance regarding the possession, use and operation of the Equipment. Customer shall carry on/off-premise power supply insurance coverage which shall include a $500,000.00 per occurrence and a $1,000,000.00 aggregate liability insurance policy to cover any repairs, maintenance and replacement of the Equipment as a result of any power supply interruption and/or deficiency, naming Sound Imaging as loss payee. Certificate must be provided to Sound Imaging.

Termination

This agreement shall remain in effect for the Term specified on the first page. Both Parties have the option to cancel the contract with a 60-day notice in writing and is given to the other party. If such written notice is given, no service will be rendered, or parts provided by us, unless there is a signed approval from the customer which will be billed at the approved rates in effect at the time. In the event that Customer breaches this Agreement and/or defaults on Customer obligations set forth in this Agreement, at Sound Imaging’s option, Sound Imaging may choose to do one or more of the following; (i) declare all amount(s) immediately due and payable to Sound Imaging; (ii) collect from Customer, on all monies due but unpaid for more than 10 days, a late charge of 11⁄2 % (one and a half percent), or lawful maximum, each month until paid; and/or (ii) terminate the Agreement with a 3 day written notice to Customer.

Taxes

Sound Imaging’s prices do not include sales, use, excise, or similar taxes. Consequently, in addition to the prices specified herein, the amount of any present or future sales, use, excise, value-added or other similar tax applicable to the products or service furnished hereunder shall be paid by the customer, or in lieu thereof the customer shall provide Sound Imaging with a tax-exemption certificate acceptable to the taxing authorities.

Excusable Delays

Sound Imaging shall not be liable for delays in performance or failure to perform due to causes beyond its reasonable control, such as, but not limited to, acts of God, acts of Customer, acts of civil or military authority, governmental priorities, fires, strikes or other labor disturbances, floods, epidemics, quarantine restrictions, war, riot, delays in transportation or inability due to causes beyond its reasonable control to obtain necessary labor, materials, components, services or manufacturing facilities. In the event of product shortage, Sound Imaging shall have the right to allocate its available resources among its customers in such manner, as Sound Imaging shall consider equitable.

Independent Contractor

Sound Imaging is an independent contractor of the Customer. Sound Imaging employees are under our Exclusive direction and control. Sound Imaging’s service contractor's employees are under our service contractor's exclusive direction and control. Nothing in this Agreement will be construed to designate Sound Imaging or any of its employees or its service contractor or any of its employees as Customer’s employees, agents, joint ventures or partners.

Record Retention and Access

If section 1861(v)(1)(1) of the Social Security Act applies to the Agreement, subsections (i) and (ii) of that section are made a part of this Agreement. In such an event, Sound Imaging agrees to retain and make available and to insert the requisite clause in each applicable subcontract requiring Sound Imaging’s subcontractor to retain and make available, the contract(s), book(s), document(s), and record(s) to the person(s), upon the request(s), and for the period(s) of time required by these subsections.

Subcontracts and Assignments

Sound Imaging may subcontract to service contractors of its choice any of its service obligations to the Customer. No such subcontract will release Sound Imaging from these obligations to the Customer. Any assignment of this Agreement is void without the other party's prior written consent.

Exclusions

This Agreement does not cover (a) removal and reconstruction of walls, partitions, ceilings, and other facility costs or equipment rigging costs arising from repair or replacement of the MR system, the magnet or it’s associated Magnet sub-systems, or parts thereof; (b) surface coils which have not been provided and bear label from the equipment manufacturer; (c) Specialty coils unless specifically listed under equipment covered; (d) service to water chillers is not included unless specifically listed under equipment covered; (e) accessory and supply items; (f)trailer, if applicable; (g) any maintenance, repairs or replacement caused or required by or resulting from the default or negligence of Customer or any other third party or any other cause beyond the reasonable control of Sound Imaging. In addition, this Agreement does not cover maintenance, repairs or replacement parts of the MR system or the Magnet and its associated sub-systems or the supply of cryogens or cryogenic services required due to loss or damage which results, in whole or in part from (1) improper storage or handling of the MR system by Customer, its employees, agents or contractors; (2) failure of Customer to prepare the site or provide power requirements or operating environmental conditions in compliance with manufacturer’s specifications; (3) absence of any product or accessory recommended by Sound Imaging but omitted at Customer’s direction; (4) any alteration of the MR system by persons other than Sound Imaging; (5) combining the MR system with any product not furnished by manufacturer; (6) interference with the magnetic or radio frequency fields of the MR system due to conditions or causes outside the MR systems furnished by the manufacturer; (7) improper or extraordinary use of the MR system, improper maintenance of the MR system, or failure to comply with applicable or recommendations of Sound Imaging or (8) failure of Customer to properly furnish Sound Imaging with accurate cryostat meter readings daily and/or when requested by Sound Imaging or its agents. In the event that Customer desires Sound Imaging to perform service on excluded items, Customer will be billed accordingly, and will submit payment separate from monthly service agreement payments, to Sound Imaging within ten (10) days of receipt of an invoice from Sound Imaging.

Warranty Disclaimer

Parts and services provided by Sound Imaging under this Agreement are provided AS IS without any warrant, whether written, oral, expressed, implied or statutory.

NO IMPLIED STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY TO ANYTHING PROVIDED BY SOUND IMAGING OR ITS SERVICE CONTRACTOR.

Arbitration

Customer agrees to submit any disputes arising over or relating to the interpretation, enforcement, performance or breach of this Agreement at Sound Imaging’s sole choosing to binding arbitration before a single arbitrator in San Diego, California with Judicate West or an alternative experienced arbitrator of Sound Imaging’s choosing. The arbitrator shall have the authority to order reasonable discovery upon application of a party for good cause shown. The arbitrator shall also have discretion to award reasonable attorney’s fees and costs to the prevailing party. Judgment may be entered upon any award in arbitration in any court of competent jurisdiction. However, any claim that can be brought in small claims court should not be subject to Arbitration and shall be brought to Small Claims Court in San Diego, California.
GOVERNING LAW: The laws of the State of California shall govern the validity, performance, and all matters relating to the interpretation and effect of this Agreement and any amendment hereto.

Entire Agreement:

This instrument constitutes the entire and only agreement between the parties respecting the subject matter hereof, and any representation, affirmation therewith, or usage of the trade not incorporated herein shall not be effective or binding upon Sound Imaging until signed on its behalf by an authorized officer of Sound Imaging. No waiver, alteration or modification of any of the provisions hereof shall be binding upon Sound Imaging unless in writing and signed on its behalf by an authorized officer of Sound Imaging. If any provision contained in this Agreement is deemed invalid, illegal, or otherwise unenforceable, the remaining provisions shall be fully enforceable. All Exhibits to this Agreement are expressly made a part of this Agreement as fully as though completely set forth in this Agreement.

GENERAL

TERMS & CONDITIONS

Confidentiality

The Terms & Conditions of your agreement are confidential and shall not be disclosed except as necessary to the performance of this agreement or as required by law. SI’s communications with prospective purchasers are to be handled exclusively through SI unless otherwise directed by SI in writing. SI agrees to limit any discussions during inspection or in the course of due diligence to technical or logistical issues, and further expressly agrees to NOT discuss any financial issues with prospective purchasers. All discussions regarding technical issues, extensions and course of due diligence has to be in writing and agreed by both parties.

Limitation of Liability

The parties agree that SI shall not be liable for any losses, damages, or injuries sustained, or claimed to be sustained, as the result of the operation, non-operation, malfunction or use of the Equipment, or the provision of medical services utilizing the Equipment. Furthermore, SI shall not be liable or responsible for any loss, damages or impairment to the Equipment that may occur during the de-installation, rigging, transportation, installation or ramp up of the Equipment, unless caused by SI's gross negligence or willful misconduct. Client agrees to inspect shipping package for shock-watchers, tilt-watches, or other sensory devices, as applicable, and notify SI immediately if package is damaged. Failure to do so will hold harmless SI for any D.O.A or other warranty claim. SI shall not be liable for any Equipment failures or malfunctions caused by Client's failure to provide an installation facility compliant with all OEM specifications for the Equipment. In no event shall SI's total liability in damages or otherwise exceed the total of the payments, if any, received by SI from Client for the services furnished or to be furnished pursuant to the Agreement. In no event shall SI be liable for incidental, consequential, indirect, punitive or special loss or damages of any kind, such as but not limited to lost business revenue, lost profits or costs of downtime, however caused, whether based on contract, tort (including negligence) or any other legal theory. SI assumes no responsibility and liability whatsoever for any matters relating to equipment calibration and use. Any pro-bono or unpaid work done by SI on any system, subsystem, suggestions and recommendation, delivery, removal, and free storage. Buyer hereby agrees to hold harmless and defend through counsel of SI’s choice, SI and its respective officers, employees, agents, representatives, and their respective successors and assigns from and against any and all loss, liability, damages, claims, causes of action, costs, and expenses, including but not limited to property damage, bodily injury, attorney's fees and any other types of liability, whether accrued, absolute, contingent or otherwise, arising out of or related to the ownership, use or misuse of any of the Equipment at any time from and after the date that Buyer or customer obtains the Equipment, Title, or delivery. SI specifically and expressly disclaims any express or implied warranties of fitness, merchant ability, or suitability whatsoever.

Furthermore, SOUND IMAGING INC. IS NOT RESPONSIBLE FOR ANY FAILURES OR DELAYS IN PERFORMING UNDER THIS AGREEMENT THAT ARE DUE TO EVENTS OUTSIDE OF ITS REASONABLE CONTROL. TO THE MAXIMUM EXTENT PERMITTED BY THE LAW, THE STATE OF CALIFORNIA, SOUND IMAGING INC. AND THEIR OFFICERS, AGENTS, AND EMPLOYEES WILL UNDER NO CIRCUMSTANCES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM THE PERFORMANCE OR OMISSION OF ANY REPAIR SERVICES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE; LOSS OF ACTUAL OR ANTICIPATED PROFIT (INCLUDING LOSS OF PROFITS ON CONTRACTS); LOSS OF REPUTATION; LOSS OF OPPORTUNITY; LOSS OF USE OF MONEY; LOSS OF ANTICIPATED SAVINGS; LOSS OF BUSINESS; LOSS OF OPPORTUNITY; LOSS OF GOODWILL; LOSS OF REPUTATION; LOSS OF, DAMAGE TO, OR CORRUPTION OF DATA; OR ANY COSTS OF RECOVERING, PROGRAMMING, OR RESTORING ANY PROGRAM OR DATA STORED ON YOUR PRODUCT OR ANY FAILURE TO MAINTAIN THE CONFIDENTIALITY OF DATA STORED ON YOUR PRODUCT. SOUND IMAGING INC. SPECIFICALLY DOES NOT WARRANT THAT IT WILL BE ABLE TO (1) REPAIR OR REPLACE YOUR PRODUCT WITHOUT RISK TO OR LOSS OF PROGRAMS OR DATA, OR (2) MAINTAIN THE CONFIDENTIALITY OF DATA. IF ANY PRODUCT SHOULD BE DAMAGED OR LOST WHILE IN SOUND IMAGING’S CUSTODY, SOUND IMAGING’S LIABILITY WILL BE LIMITED TO THE COST OF REPAIR OR REPLACEMENT OF THE AFFECTED PRODUCT. OTHERWISE SOUND IMAGING’S LIABILITY FOR ANY AND ALL DAMAGE SHALL IN NO EVENT EXCEED THE PAYMENTS RECEIVED BY SOUND IMAGING INC. FOR SERVICES PROVIDED PURSUANT TO THESE TERMS. THE REMEDIES SET FORTH HEREIN SHALL BE YOUR SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH BY SOUND IMAGING INC. UNDER THESE TERMS AND CONDITIONS. SI’s total liability in damages or otherwise shall not exceed the payment, if any, resulting in the loss or damage claimed.

Dispute Clause

All sales transactions are governed by California law. Any disputes arising out of or related to sales of equipment shall be brought exclusively in the state or federal courts located in San Diego, California. The parties consent and submit to personal jurisdiction and venue in the state or federal courts located in San Diego, California.
If SI is required to institute legal proceedings to collect any sums due as a result of sales transaction, the prevailing party in any such proceeding shall be entitled to recover its reasonable attorney fees and costs incurred.

Severability

If any term, provision, covenant, or condition of the Agreement, or the application thereof, is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the rest of the Agreement shall remain in full force and not invalidated, and application of such provision(s) to persons, entities, or circumstances shall be interpreted so as best to reasonably effect the intent of the Parties.

Headings

The headings of the sections of the Terms & Conditions are used for convenience purposes only and shall not constitute a part hereof or affect in any way the meaning or interpretation of the Terms & Conditions

Expenses

Except as otherwise specifically provided herein, each party to the Agreement shall pay its own expenses (including the fees and expenses of their representatives, inspections, travel, accountants and counsel) incidental to the preparation and carrying out of the Agreement, and the consummation of the transaction set forth herein. Buyer will also assume all liability and physical damage costs associated with the sale of the Equipment.

Waiver

Failure by a party to assert its rights upon any default of the Agreement shall not be deemed a waiver of such rights, nor shall any waiver be implied from the making of any payment hereunder.

Dispute Clause

The parties agree to submit any and all disputes arising out of or relating to the interpretation, enforcement, performance or breach of the Agreement to binding arbitration before a single arbitrator in San Diego, California with Judicate West or an alternative experienced arbitrator of Sound Imaging’s choosing. The arbitrator shall have the authority to order reasonable discovery upon application of a party for good cause shown. The arbitrator shall also have discretion to award reasonable attorney’s fees and costs to the prevailing party. Judgment may be entered upon any award in arbitration in any court of competent jurisdiction. However, if the matter may be brought to small claims, then the parties agree to bring the suit before the Superior Court of California, County of San Diego, Small Claims Court.

Governing Law

The laws of the State of California shall govern the validity, performance, and all matters relating to the interpretation and effect of the Agreement and any amendment hereto.

State & Federal Compliance

The Buyer is solely responsible for compliance with all state and federal requirements for sales/state taxes, shielding, licensing and registration, as applicable. Buyer is responsible for any software licensure required by the original equipment manufacturer.

Limitation of Liability

SI’s total liability in damages or otherwise shall not exceed the payment, if any, received by SI for the equipment furnished or to be furnished, as the case may be, resulting in the loss or damage claimed. In no event shall SI be liable for incidental, consequential, indirect, punitive or special loss or damages of any kind, such as but not limited to lost business revenue, lost profits or costs of downtime resulting from SI products or services, however caused, whether based on contract, tort (including negligence) or any other legal theory. SI assumes no responsibility and liability whatsoever for any matters relating to equipment calibration and use. Any pro-bono or unpaid work done by SI on any system, subsystem, suggestions and recommendation, delivery, removal, and free storage. Buyer hereby agrees to hold harmless and defend through counsel of SI’s choice, SI and its respective officers, employees, agents, representatives, and their respective successors and assigns from and against any and all loss, liability, damages, claims, causes of action, costs, and expenses, including but not limited to property damage, bodily injury, attorney's fees and any other types of liability, whether accrued, absolute, contingent or otherwise, arising out of or related to the ownership, use or misuse of any of the Equipment at any time from and after the date that Buyer or customer obtains the Equipment, Title, or delivery.

Severability

If any term, provision, covenant, or condition of the Agreement, or the application thereof, is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the rest of the Agreement shall remain in full force and not invalidated, and application of such provision(s) to persons, entities, or circumstances shall be interpreted so as best to reasonably effect the intent of the Parties.

Headings

Conditions are used for convenience purposes only and shall not constitute a part hereof or affect in any way the meaning or interpretation of the Terms & Conditions.

Offsets

Sound Imaging shall have the right to deduct monies owed from invoices to clients. Client shall not have any offset rights against SI.

Misc.

The sale price is in US Dollars and does not include applicable sales or state taxes, which are the responsibility of the BUYER. The Equipment is being sold as is, where is. BUYER agrees to purchase the Equipment described above and by signature indicates acceptance in its entirety of all Terms & Conditions set forth in the Equipment Purchase Agreement and the attached Purchase Agreement Terms and Conditions. BUYER ‘s acceptance acknowledges that the BUYER has read, fully understands, and is in agreement with the conditions set forth in the Purchase Agreement and the attached Purchase Agreement Terms and Conditions and the information contained therein.

 

 

Sound Imaging, Inc.

7580 Trade St.

San Diego, CA 92121

Phone: (866) 530-7850

Fax: (858) 368-9556

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