Rental MSA

RENTAL AGREEMENT

This Rental Agreement was last revised as of: [September 14, 2023]

Subject to the terms and conditions of this Rental Agreement (the “Agreement”), Bacon Healthcare Corp., (“Lessor”) agrees to furnish you (“Lessee”) the property identified in the applicable invoice (the “Leased Property”).

Lessee acknowledges and agrees that the Leased Property is subject to availability and provided on a first-come, first-served basis. This Agreement is not enforceable until the Leased Property’s availability is confirmed and until this Agreement is signed by both Lessor and Lessee.

General.

a. Contract Terms. These terms and conditions constitute an integral part of any offer made by Lessor to lease the Leased Property to Lessee and shall govern the lease of the Leased Property. Lessor objects to any additional or different terms. Lessee acknowledges that this is a commercial and not a consumer transaction.

b. Acceptance. An order shall be binding on Lessor only after a credit approval and acceptance by Lessor. Acceptance is expressly made conditional to Lessee’s acceptance of these terms and conditions.
Leased Property. Lessor hereby leases the Leased Property to Lessee and Lessee hereby leases the Leased Property from Lessor subject to the terms and conditions of this Agreement.
TERM AND LEASE PAYMENTS.

a. Initial Term. The lease shall become effective at the time of Lessee’s acceptance and will continue in effect, unless earlier terminated as provided herein, until the date specified on the applicable invoice (the “Initial Term”).[2] The Leased Property will be deemed “Accepted” upon delivery to Lessee (as applicable).

b. Extensions. Provided that no event of default shall have occurred and be continuing, Lessee may extend the Initial Term by providing Lessor advance written notice no less than thirty (30) days prior to the end of the Initial Term. Such notice shall specify the period for which Lessee seeks to extend the Initial Term (the “Extension Term,” and together with the Initial Term, the “Term”). Lessee’s ability to extend beyond the Initial Term is strictly subject to availability of the Leased Property. If the Leased Property is unavailable during the proposed Extension Term, Lessor shall notify Lessee of such unavailability within ten (10) days of its receipt of Lessee’s notice regarding its intent to extend the Initial Term.

c. Payment Terms. Lessee hereby agrees to pay Lessor the lease amount during the Initial Term [at end of the renting period] and according to rental type:

Daily Rentals:
Lessee agrees to pay amount stated on the applicable invoice per day. During any Extension Term, payment due to Lessor for each additional day will be at the amount stated on the invoice per day rate.

Weekly Rentals:
Lessee agrees to pay amount stated on the applicable invoice per week. During any Extension Term, payment due to Lessor for each additional week will be at the amount stated on the invoice per week rate.

Monthly Rentals:
Lessee agrees to pay amount stated on the applicable invoice per month. During any Extension Term, payment due to Lessor for each additional month will be at the amount stated on the invoice per month rate.

Yearly Rentals:
Lessee agrees to pay amount stated on the applicable invoice per year. During any Extension Term, payment due to Lessor for each additional year will be at the amount stated on the invoice per year rate.

d. Late Payment. A late charge of five percent (5%) of any payment not paid when due as compensation for Lessor’s internal operating expenses arising as a result of such delayed payment, plus a service charge of 1 1/2 % per month, not to exceed the maximum amount allowed by law, shall be made on any portion of the Lessee’s outstanding balance which is not paid when due whether such payments are due prior to or after a default.

e. Net Lease; No Setoff. The lease is a net lease and Lessee shall not be entitled to any abatement of, reduction of, or setoff against lease payments for any reason whatsoever.
WARRANTY.

a. LESSOR MAKES NO, AND EXPRESSLY DISCLAIMS ANY, WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSES, WARRANTY AGAINST INTERFERENCE, OR WARRANTY AGAINST INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS, AND SUCH CONSTITUTES THE ONLY WARRANTY MADE WITH RESPECT TO THE PRODUCTS INCLUDED IN THE LEASED PROPERTY.
LIMITATION OF LIABILITY.

a. LESSOR SHALL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, ENHANCED, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOSS OF USE, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE LEASED PROPERTY, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE OR EVEN IF LESSOR OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING IS A SEPARATE, ESSENTIAL TERM OF THIS AGREEMENT AND SHALL BE EFFECTIVE UPON THE FAILURE OF ANY REMEDY, EXCLUSIVE OR NOT. IN NO EVENT WILL LESSOR’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY BREACH BY LESSOR THEREOF EXCEED THE AMOUNTS PAID TO LESSOR BY LESSEE PURSUANT TO THIS AGREEMENT FOR THE SIX (6)-MONTH PERIOD PRIOR TO THE DATE OF SUCH CLAIM.

b. LESSEE UNDERSTANDS THE INHERENT RISKS AND DANGERS ASSOCATED WITH THE USE OF FLUOROSCOPY EQUIPMENT AND SHALL BE RESPONSIBLE FOR TRAINING ITS EMPLOYEES AND AGENTS IN SAFE USE AND HANDLING OF SUCH EQUIPMENT.
FORCE MAJEURE.

a. Lessor will make every effort to complete delivery, and installation where indicated, but shall not be liable for any loss or damage for delay in delivery or delay or inability to install due to causes beyond its reasonable control, including, but not limited to, acts of civil or military authority, priorities, fire, strikes, floods, epidemics, pandemics, quarantine restrictions, infectious diseases, public health emergencies, war, riots, delay in transportation, car shortages, acts of government or compliance with any governmental rules or regulations. Should such a delay occur, Lessor may reasonably extend delivery or production schedules, or at its option, cancel the order in whole or part without liability other than to return any unearned deposit or prepayment.
LOCATION PREPARATION.

a. Lessor will furnish and, unless otherwise specified in writing, assemble and disassemble the Leased Property at Lessee’s address specified in the applicable invoice and will connect the same to the safety switches or electrical outlets to be provided and installed by the Lessee. If for any reason such assembly, disassembly and/or electrical connections are made by other than the Lessor’s own employees, any additional cost for such outside labor must be assumed and paid for by the Lessee. Proper electrical current for the operation of the equipment will be brought to the safety switches and electrical outlets by the Lessee and the Lessee will supply all necessary conduit wiring.
SET-UP/DELIVERY

a. Delivery of the Leased Property will be paid by the Lessee and the return to any destination chosen by the Lessor is not included as part of the lease payment and will be the responsibility of the Lessee. The return cost will be based upon the actual transportation from Lessee’s facility.

b. Lessee will be responsible for all technical staff, medical supplies, film, processing, long term image storage media, contrast media, etc. as may be required to operate the Leased Property and perform examinations therewith.
LOCATION AND USE OF LEASED PROPERTY.

a. The Leased Property shall be delivered to and thereafter kept at Lessee’s address specified in the applicable invoice and shall not be removed from that location without Lessor’s prior written consent. The Leased Property shall be kept by Lessee in its possession and control and used by the Lessee and all other persons with due care and conformity with all applicable laws, regulations, requirements, or any insurer or government.

b. In the event possession or the use of the Leased Property requires licensing by any governmental authority, Lessee shall, at its own expense, obtain and maintain such license continuously during the Term. Lessee shall comply with all laws and regulations governing use of the Leased Property, including laws and regulations regarding safety, privacy and data security.
MAINTENANCE.

a. This Agreement includes service and preventative maintenance of the Leased Property to be performed between the hours of 8:00 am and 5:00 pm Monday through Friday (except holidays).

b. All Lessee networking connection software and/or hardware is not included in the above lease rate. Any additional expense for such networking equipment is the responsibility of the Lessee.

c. The Lessor shall exercise due and proper care in the use, repair and servicing of the Leased Property and at all times, at its expense, has the responsibility to keep and maintain the Leased Property in good working condition, order and repair. The Lessee shall be responsible, at its expense, to reimburse Lessor for the labor, repair or replacement of all Leased Property damaged through negligent acts, misuse or omissions by the Lessee, or its employees, contractors or agents. The Lessor and its employees and agents shall have the right to access the Lessee’s premises to inspect the Leased Property and Lessee’s maintenance records at reasonable times and upon reasonable notice to Lessee. The Lessee shall be responsible, at its sole cost and expense, for any service caused by:

i. your combining or using the Leased Property with any product of others or with an incompatible product of ours;
ii. any alteration or improper storage, handling, use or maintenance of any part of the Leased Property by anyone other than Lessor or its service contactor;
iii. vandalism, accident, lightning, earthquake, fire, smoke or water damage to the Leased Property;
iv. damage to the Leased Property due to outside forces; and
v. the cleaning or decontamination of the Leased Property after contact with blood or other potentially infectious materials or liquids.

d. Service and preventive maintenance will be provided without charge as stated within this Agreement. If Lessee requires that service be performed other than during these times, such service can be made available at an additional charge and billed to Lessee at rate of $300.00 per hour.

e. [All maintenance and service requests shall be made by telephone to (800) 643-2998, by email to info@minicarm.com, or via Lessor’s website at www.minicarm.com. Lessor is staffed to answer telephone service calls between the hours of 7:00 AM and 6:00 PM Eastern Time (ET), Monday through Friday. Lessor’s email and website are monitored 24 hours per day, 365 days per year.]
LESSEE’S REPRESENTATIONS.

a. Lessee represents and warrants for the benefit of Lessor that the statements in this Section ‎11 are true and correct as of the date hereof.

i. Lessee is duly organized, validly existing, in good standing, and duly licensed and qualified to do business under applicable law.
ii. Lessee has full corporate power and authority to enter into this Agreement, carry out its obligations hereunder, and consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by Lessee, and constitutes a legal, valid, and binding obligation of Lessee enforceable against Lessee in accordance with its terms.
iii. The execution, delivery, and performance by Lessee of this Agreement will not require the consent of any party, result in any lien on any Leased Property, or conflict with the organizational documents of Lessee, any provision of applicable law, or any instrument by which Lessee is bound.
iv. There are no actions pending or threatened against or by Lessee challenging the transactions contemplated by this Agreement and no circumstances exist that may give rise to such an action.

b. Subject to any limitations and other provisions contained in this Agreement, the representations of Lessee contained in Section ‎11 shall survive indefinitely.
LESSEE’S COVENANTS.

a. Lessee agrees that until all amounts payable under this Agreement have been paid in full and all other obligations hereunder have been performed in full, Lessee shall comply with the covenants in this Section ‎12.

i. Lessee shall comply with all applicable law.
ii. Lessee shall maintain in full force and effect all permits required to continue conducting its business and to lease and use the Leased Property in the manner contemplated under this Agreement.
iii. Lessee shall keep the Leased Property free and clear of all liens.

b. Unless expressly limited to the term of this Agreement, all covenants and agreements of Lessee contained herein, including without limitation Lessee’s obligations under this Section ‎12, shall survive indefinitely.
INDEMNIFICATION.

a. Lessee shall indemnify, defend and hold harmless Lessor, its successors and assigns, and its affiliates and the respective directors, officers, officials, agents, representatives, employees and contractors of Lessor, its successors and assigns, and its affiliates from any loss, claim, liability, and expense (including reasonable attorney’s fees and expenses of litigation) including without limitation claims for personal injury, death or property damage or loss where the injury, death, damage or loss arises out of or is in any way related to the Leased Property, or its manufacture, design, selection, purchase, acceptance, rejection, delivery, possession, use or return, or recovery of claims under any insurance policies, any breach or non-fulfillment of any covenant, agreement, or obligation to be performed by Lessee pursuant to this Agreement, any inaccuracy in or breach of any representations of Lessee contained in this Agreement, or, where the claim is based in the whole or in any part on, or is in any way related to, any act of omission by Lessee or Lessee’s subcontractors, agents, employees or delegates.

b. Lessor shall indemnify and hold harmless Lessee its officials, agents, representatives, and employees from any loss, claim, liability and expense (including reasonable attorney’s fees and expenses of litigation) including without limitation claims for personal injury, death or property damage or loss where the injury, death, damage or loss arises out of or is in any way related to any negligent act or omission by Lessor or Lessor’s subcontractors, agents, employees, or delegates.
INSURANCE.

a. Lessee shall maintain, at its costs, comprehensive public liability insurance coverage for any current or future claim, in an amount not less than that amount required by appropriate law, and if none, then not less than $3,000,000.00 for a single occurrence and $5,000,000.00 annual aggregate with respect to the activities of the Lessee, and shall name the Lessor as an additional insured. The Lessee will, at its cost, maintain property insurance on the Leased Property. The property insurance will be for the full replacement value in an amount not less than $50,000.00 on an “All Risk” or special perils coverage form, with mechanical breakdown and off premise power interruption coverage added by endorsement or on a separate boiler policy. The Lessor will be named as loss payee on the property policy. The proceeds of such coverage, in the event of loss or damage, shall be applied at the Lessor’s option, to the repair or replacement of the property affected. Lessee shall provide to Lessor a certificate evidencing liability and property insurance. Lessee shall provide Lessor with written notice of any termination or modification of an applicable insurance policy as soon as practicable.
LOSS OR DAMAGE.

a. The Lessee shall be responsible for any loss or damage to the Leased Property from any cause whatsoever not included under fire and extended coverage insurance. Lessor shall not be liable for any loss or interruption or damage to Lessee’s business on account of any mechanical failure or delay in connection with the furnishing or use of the Leased Property.
TITLE.

a. The title to all Leased Property covered in this Agreement shall be and remain in the Lessor at all times, subject only to Lessee’s right of possession and use during the Term. Lessee acquires no ownership, title, property, right, equity, or interest in the Leased Property other than its leasehold interest solely as lessee subject to all the terms and conditions of this Agreement. Employees of the Lessor shall have immediate access to the Leased Property to remove the Leased Property at the termination of the lease.
TAXES.

a. Lessee shall report and promptly pay, including but not limited to, any and all sales and use taxes, personal property tax, fees and assessments due, assessed or levied against the Leased Property or the delivery, leasing, possession, use or operation thereof, or upon the rentals or receipts with respect to this lease including, without limitation, all license and registration fees and all use, personal or real property excise gross receipts, franchise, stamp, or other taxes, imposts, duties and charges, together with any penalties, fines or interest thereon, imposed against this lease and any lease schedules. If applicable, Lessee will provide a copy of its Tax-Exempt Certificate with a signed copy of this Agreement.

b. Lessee shall reimburse Lessor, or its successors or assigns, upon receipt of written request for reimbursement for any taxes charged to or assessed against Lessor or its successors or assigns, and Lessee will, on request of Lessor submit to Lessor written evidence of Lessee’s payment thereof, and in any case any report or return is required to be made with respect to any tax, Lessee will make such report or return in such manner as will show the ownership of the Leased Property by Lessor, and send a copy of thereof to Lessor.
DEFAULT.

a. In the event that (i) any payment hereunder shall have become due as herein provided and shall remain unpaid for seven (7) days after Lessee is notified by Lessor of such delinquency, (ii) Lessee becomes insolvent, ceases to do business as an ongoing concern, makes an assignment for the benefit of creditors, seeks any arrangement or composition with its creditors under any statute or otherwise, or if a petition for a receiver of bankruptcy is filed by or against Lessee, which breach shall not have been cured within ten (10) days after written notice thereof to Lessee at Lessee’s last known address, (iii) Lessee defaults in the observance or performance of any other term, representation, covenant, or condition of this Agreement, on Lessee’s part to be observed or performed, and Lessee fails to remedy such default within seven (7) days after notice by Lessor to Lessee of such default, (iv) Lessee’s interest or any portion thereof in this Agreement devolves on or passes to any other party, whether by operation of law or otherwise, or (v) Lessee sells, transfers, or disposes of all or substantially all of its assets or the property of its business, or merges or consolidates with any other entity, the Lessor may at the Lessor’s option declare Lessee to be in default of this Agreement and exercise any or all of the following rights:

i. Declare all sums due and to become due hereunder to be due and payable forthwith;
ii. Sue at law or in equity to enforce performance of this lease or to recover damage for breach thereof; or
iii. Take and hold possession of the Leased Property and render the Leased Property unusable, and for this purpose remove the Leased Property from any premises where the same may be located without liability to Lessor for any damage caused thereby.
SECURITY INTEREST.

a. The parties intend and agree that, if this Agreement is recharacterized under applicable law as a secured financing or a lease intended for security, this Agreement shall be deemed a security agreement and Section ‎2 hereof shall be deemed a grant to Lessor by Lessee of a lien on and first priority security interest in the Leased Property and all proceeds thereof, to secure the payment of Lessee’s obligations under this Agreement. Lessor and Lessee each agree to execute, acknowledge, deliver, file, and record, or cause to be executed, acknowledged, delivered, filed, and recorded such further documents (including without limitation UCC financing statements), and to do all such things and acts, necessary to ensure that such security interest would be a perfected first priority security interest under applicable law.
TERMINATION.

a. This Agreement shall terminate upon the occurrence of one of the following events:

i. at Lessor’s election upon Lessee’s failure to pay the rent when due;
ii. upon thirty (30) days prior written notice of termination being served by Lessor upon the Lessee but not less than the Initial Term of this Agreement; or
iii. upon a party’s failure to remedy its default of this Agreement, subject to the other party first giving the defaulting party not less than ten (10) days prior written notice of the default and said default is not cured within the notice period.
ASSIGNMENT AND SUBLEASE.

a. Lessee hereby consents to any assignment by Lessor and any reassignment of this lease, the rents due hereunder, or any or all of Lessor’s rights, title, or interest in this lease, with or without notice. Neither this lease nor any of Lessee’s rights hereunder shall be assignable by Lessee either by its own act or by operation of law, without the prior written consent of the Lessor.
RISK OF LOSS.

a. From the start of the lease through the expiration or earlier termination of the Term hereunder as to any Leased Property, Lessee shall bear the entire risk of loss, theft, destruction or damage of the Leased Property from any cause whatsoever and no loss, theft, destruction or damage of the Leased Property shall relieve Lessee of the obligation to pay rent or any other obligations under this lease. Lessee shall notify Lessor in writing as soon as practicable upon the occurrence of any such loss. In the event of loss, theft, or damage of any kind to the Leased Property, Lessee, at the option of Lessor, shall place the Leased Property in good condition and repair, or if the Leased Property is determined by Lessor to be lost, stolen, destroyed or damaged beyond repair and if requested by Lessor, purchase the Leased Property at its fair market value immediately preceding the event causing the loss.
DEFAULT; ATTORNEYS’ FEES.

a. Lessor shall be entitled to exercise all rights and remedies under law upon breach by Lessee of any terms or conditions herein. In the event that legal or other action is required to enforce Lessor’s rights hereunder, Lessee agrees to reimburse Lessor on demand for its reasonable attorneys’ fees and its other related costs and expenses.
MODIFICATION.

a. This Agreement may not be changed, modified or amended except in writing signed by duly authorized representatives of the parties.
INDEPENDENT CONTRACTOR.

a. Lessor is only providing the use of the Leased Property and is performing as an independent contractor and not as an agent for the Lessee. Nothing contained in this Agreement shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture, or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
JURISDICTION AND VENUE.

a. Any controversy arising out of this Agreement shall be settled by arbitration in the State of New York, New York County and in accordance with the Rules of the American Arbitration Association. Each party irrevocably submits to the exclusive jurisdiction of the state and federal courts in the State of New York, New York Country to enforce any award rendered by the arbitrator. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York and the venue for any legal proceedings shall be in the state and federal courts in the State of New York, New York County.
INTEGRATION.

a. This contract and any attachments represent the entire agreement between the parties, is a final expression of the agreement, is non-cancelable, and supersedes any previous agreements between the parties. Any changes must be in writing signed by both parties. This Agreement will not be binding until signed by both parties and can be withdrawn by either party at any time, without notice, prior to signature by either party.
SEVERABILITY.

a. In the event that any portion of this Agreement is held to be invalid, illegal, unenforceable or void, such provision shall be deemed to be several and shall in no way affect the validity of the remaining terms and conditions of this Agreement. The parties shall negotiate in good faith to replace any invalid, illegal, unenforceable or void provision with a valid and enforceable provision that achieves the intended purpose of the original provision to the maximum extent possible.
MISCELLANEOUS.

a. Lessee agrees to execute, acknowledge, deliver, file, and record, or cause to be executed, acknowledged, delivered, filed, and recorded, such further documents or other papers and to do all such things and acts as Lessor may request in furtherance of the provisions and purposes of this Agreement and the transactions contemplated hereby.

b. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement must be in writing and addressed to the parties at their respective addresses set forth in the applicable invoice (or to such other address that the parties may designate from time to time in accordance with this Section). Unless otherwise agreed by the parties, all notices must be delivered by personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only on receipt by the receiving party and if the party giving the notice has complied with the requirements of this Section.

c. No waiver under this Agreement is effective unless it is in writing and signed by an authorized representative of the party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated and does not operate as a waiver on any future occasion. Neither any failure or delay in exercising any right, remedy, power, or privilege, or in enforcing any condition under this Agreement, nor any act, omission, or course of dealing between the parties constitutes a waiver or estoppel with respect to any right, remedy, power, privilege, or condition arising from this Agreement.

d. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which together shall constitute one and the same document, and a signed copy of this Agreement delivered by facsimile, email .pdf or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

e. In the event of any conflict between this Agreement (or any portion thereof) and any order or related invoice or any other agreement now existing or hereafter entered into between the parties, the terms of this Agreement shall control and prevail.

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