1. Equipment Loaned by FUJIFILM Sonosite, Inc. (“FFSS”). FFSS from time to time may loan to a facility or individual (a “Borrower”) for the Term (defined below), free of charge, solely to evaluate for possible purchase, FFSS’s equipment listed on the cover page to these Standard Terms and Conditions (these “T&Cs”) (the cover page and these T&Cs, this “Agreement”), along with additional items, components and accessories thereto, if any (collectively, the “Loaned Equipment”). FFSS may provide service and maintenance on the Loaned Equipment at no charge to Borrower. Borrower shall be responsible for the cost of any consumable products used in connection with the Loaned Equipment.
  2. ACCEPTANCE OF FFSS’s T&Cs ACKNOWLEDGEMENT AND CERTIFICATION. BORROWER’S RECEIPT, USE AND RETENTION OF THE LOANED EQUIPMENT OWNED BY FFSS FOLLOWING BUYER’S RECEIPT OF NOTICE (THE “NOTICE OF T&Cs”) FROM FFSS CONSTITUTES BUYER’S ACCEPTANCE OF THESE T&Cs FOR ALL PURPOSES, AND THESE T&Cs, TOGETHER WITH THE NOTICE OF T&Cs, CONSTITUTE THE COMPLETE AGREEMENT BETWEEN BORROWER AND FFSS. ANY ADDITIONAL OR DIFFERING TERMS ARE HEREBY EXPRESSLY REJECTED BY FFSS. By the act of such acceptance and agreement to these T&Cs, Borrower also acknowledges that this loan of the Loaned Equipment is not intended to induce any referrals or the purchase of any products or services, and certifies that the Loaned Equipment will be used and remain on Borrower’s premises at all times during the Term, and only be used (i) in accordance with the indications for use and directions included in its User Guide and other labeling, and (ii) by or on the order of a licensed practitioner authorized to prescribe or administer medical ultrasound.
  3. Term and Termination. The term of this Agreement (the “Term”) will begin on the date the Loaned Equipment is received by Borrower and, except as otherwise indicated, terminate upon return of the Loaned Equipment to FFSS. Borrower agrees to return the Loaned Equipment to FFSS upon or prior to the soonest of: (i) the requested return date specified in the Notice of T&Cs, (ii) thirty (30) calendar days after Borrower’s receipt of the Loaned Equipment, or (iii) FFSS’ request for return of the Loaned Equipment for any reason. Sections 4 through and including 13 hereof will survive termination of the Term.
  4. Title to Loaned Equipment. Title to the Loaned Equipment is and shall at all times remain with FFSS. Borrower shall at all times keep the Loaned Equipment free and clear of all liens, attachments, encumbrances, charges, levies or other judicial process of any kind whatsoever.
  5. Return of Equipment. The Loaned Equipment shall be returned to FFSS’ Territory Sales Manager or, by properly packaged, labeled, insured and prepaid shipment, to FUJIFILM Sonosite, Inc., Attn: Demo Equipment Department, 18421 Bothell Everett Hwy, Building 3 - Suite 120, Bothell, WA 98021. Borrower shall remove all patient data from the Loaned Equipment prior to its return to FFSS, and comply with all applicable laws and regulations regarding the privacy of such information, including without limitation the Health Insurance Portability and Accountability Act of 1996, as the same may be amended from time to time. Loaned Equipment must be returned to FFSS by Borrower cleaned and disinfected in accordance with directions in the User Guide and in the same condition as received by Borrower, except for reasonable wear and tear. If for any reason the Loaned Equipment is not returned to FFSS on or before the date required pursuant to Paragraph 3 above, FFSS may invoice Borrower the replacement value of the Loaned Equipment or, in FFSS’ discretion, rental charges pending return of the Loaned Equipment, in addition to any other amounts owed. FFSS may also enter any premises where the Loaned Equipment is located and remove the Loaned Equipment at Borrower’s expense and at Borrower’s risk for damages arising from such entry and removal. If the Loaned Equipment is not in the same condition as received by Borrower, ordinary wear and tear excepted, FFSS may invoice the Borrower (i) the value of the repairs and parts necessary to return the Loaned Equipment to the same condition as when delivered to Borrower, ordinary wear and tear excepted, or, if in FFSS’s discretion the Loaned Equipment is beyond repair, (ii) the replacement value of the Loaned Equipment. Borrower shall pay any such invoice within thirty (30) days of receipt.
  6. Equipment Standard of Care. Borrower shall retain and protect the Loaned Equipment with at least the same degree of care with which it holds its own property, but in any event no less than reasonable care. Borrower will follow operating, reprocessing, cleaning, disinfection and maintenance procedures for the Equipment as described in FFSS’s instruction manuals (e.g., User Guides) and in accordance with all applicable federal, state, and local laws. Borrower shall assume all risk of liability for loss or damage to the Loaned Equipment while it is under Borrower’s care and control, unless such loss or damage arises from the gross negligence or willful misconduct of FFSS.
  7. Reverse Engineering. Borrower shall not, and shall not attempt to, disassemble, decompile, reverse engineer or derive source code from all or any portion of the Loaned Equipment, or permit or encourage any third party to do the same, at any time.
  9. Intellectual Property. Borrower does not have any rights to any pre-existing intellectual property and proprietary rights in the Loaned Equipment, and any improvements or modifications thereto (“Equipment IP”) shall be considered to be developed solely and independently by FFSS. Borrower hereby assigns any rights it may have in and to Equipment IP to FFSS and shall assist it as needed to perfect FFSS’s interest in Equipment IP.
  10. Indemnification; Limitation of Liability. Borrower shall defend, indemnify and hold harmless FFSS, its officers, employees and agents from and against any and all liability, loss, expense (including reasonable legal fees and expenses), or claims for injury or damages arising out of (i) possession, use, misuse or operation of the Loaned Equipment, or (ii) any breach by Borrower of this Agreement. Under no circumstances will either party be liable to the other party for any special, punitive, indirect, incidental or consequential damages of any kind, even if such damages result from negligence or other fault of the other party, whether such damages are labeled in tort, contract or indemnity, even if the parties have been advised of the possibility of such damages. Under no circumstances shall FFSS’s aggregate monetary liability under this Agreement, if any and howsoever arising, exceed the fair market value of the Loaned Equipment or, if less, $50,000.
  11. Third Party Billing. Some third parties have explicit bars on reporting the technical component of imaging services when the provider submitting the claim is not the owner or lessor of the equipment. It is Borrower’s obligation to comply with payer policies on this point.
  12. Compliance. The parties represent that the arrangement set forth in this Agreement shall not be construed to be an inducement to purchase any equipment or service from FFSS or any affiliate of FFSS. Nothing in this Agreement is intended to be, nor shall it be construed as, an offer or payment made, whether directly or indirectly, to induce the purchase, lease or order of any item or service, or the arranging for the purchase, lease or order of any item or service. Borrower acknowledges that this Agreement may be subject to public disclosure by it and/or FFSS under applicable laws and regulations. If required, it and/or FFSS will report the details of the arrangement set forth in this Agreement in accordance with applicable law.
  13. Entire Agreement; Amendment. As noted above, these T&Cs and the Notice of T&Cs constitute the entire agreement between the parties, and supersedes all prior oral or written agreements between the parties, with respect to the subject matter hereof, and may only be amended by mutual written consent of the parties. Any other attempt to amend or modify this agreement, including, but not limited to, handwritten insertion of additional terms into this document, shall have no force or effect even if initialed by representatives of FFSS and/or the Borrower.
  14. Miscellaneous. The validity and interpretation of these T&Cs shall be governed by the laws of the State of Washington, without regard to its conflicts of laws provisions. If any provision hereof is found to be invalid, illegal or unenforceable by a court of competent jurisdiction, then, to the extent permitted by law, the validity, legality and enforceability of the remaining provisions will not be affected. The failure of either party to enforce any of these T&Cs shall not be deemed a waiver of that party's right thereafter to enforce each and every such term and condition.