MARCO OPHTHALMIC, INC.
SERVICE AGREEMENT 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, for each item of equipment listed on the Service Agreement Invoice.
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 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, or if later, the Renewal Date set forth therein (“Coverage Term”). This Agreement is renewable annually, up to 10 years from the date of manufacture of the instrument (s), by timely paying the then applicable invoice amount provided by Marco.
3. What this Service Agreement Covers. Marco offers three (3) levels of protection for your instrument(s). Below is a description of the three (3) levels of protection.
PLATINUM LEVEL – This level of service offers the most comprehensive array of service and the finest value in protecting your investment. It covers all costs of parts, labor and shipping plus the cost of loaner equipment. * One round-trip field-service call within the contract period is also included. If field-service work beyond the initial visit is required, Marco will estimate the cost in advance and invoice upon completion.
GOLD LEVEL – This level covers all costs for parts, labor and shipping plus the cost of loaner equipment. * Field-service is available for the EPIC. You pay only the travel expenses related to the field-service trip, Marco will estimate the cost in advance and invoice upon completion. Marco will use reasonable commercial efforts to minimize travel costs.
SILVER LEVEL – This level covers all costs of parts and labor required to repair or service your equipment. You pay only shipping and packaging costs. If you require loaner equipment*, Marco will be glad to provide a quote in advance. This level of service covers depot service at Marco’s location only.
* Loaner equipment provided on an as available basis. Further, a OPD/AFC loaner is only available for a Platinum Level Service Agreement.
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 instrument due to misuse, theft, neglect, 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 repair will be at the expense of the customer.
Loaner instruments are subject to availability and are not guaranteed. Loaner instruments are for use within the United States and are not to be taken out of the country. Any repairs required as a result of damage sustained to the Loaner Instrument taken out of the United States will be invoiced to, and result in liability to the customer.
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.
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 instrument is required to be sent to Marco for service. Also, Marco reserves the right to transport the instrument to its workshop for repair if deemed necessary.
Field Service: Marco will provide the service at the customer’s site as agreed to in the terms of the original agreement. If the instrument is relocated to a new site, the customer shall inform Marco of the new location.
Travel Expenses: These are expenses incurred by Marco that are associated with a field-service trip. These expenses include travel costs (e.g. flights, rental car, hotel, meals, taxi fares, mileage, etc) and travel time (time to and from Marco to the customer’s 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.
Modification or Transfer of Agreement: The terms and conditions of this Agreement can only be altered in writing by Marco. The Agreement is not transferable without the prior written consent of Marco. 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.
Termination of Service Agreement: This Agreement will terminate at the end of the applicable Coverage Term. 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.
9. 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.
10. 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.
11. 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. Additional or different terms and conditions, whether stated in a purchase order or other document issued by you, are rejected and will not apply to the transactions contemplated by this Agreement.
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.