This EMSAR Advantage Agreement is linked to your proposal document and as such the Agreement will commence upon signature date of proposal.
EMSAR will provide expert maintenance, repairs, reconditioning, and upgrades to the equipment set forth in EMSAR Advantage proposal (the “Covered Equipment List”) in accordance with the terms of this Agreement. Except for the exclusions in Section 1(b) below, repairs and maintenance will be provided pursuant to Sections 2 and 3 of this Agreement for all mechanical components of the Covered Equipment.
(a) The following are covered under this Agreement and considered “all inclusive”:
(b) The following are not covered under this Agreement and will be separately invoiced to Client to the extent provided and/or performed by EMSAR as requested by Client:
Client will provide EMSAR with copies of any applicable procedures and/or special requirements and specifications pertaining to the Covered Services (as defined in Section 3) prior to any scheduled service.
It is the responsibility of Client and its employees and agents to inspect and test each item before each use, in accordance with the equipment manufacturer’s recommendations and other applicable regulations.
The parties acknowledge that the Covered Equipment will be inspected and serviced by EMSAR to bring the Covered Equipment up to the manufacturer’s specifications, as necessary, and that any and all labor and travel costs will be included in the EMSAR Advantage Proposal annual amount. All parts required during the inspection are not covered by this Agreement and will be separately invoiced to the Client. Any opinion of condition is based on a visual hands-on assessment on the date of inspection. Upon the commencement of this Agreement, the Covered Equipment will undergo EMSAR’s standard preventative maintenance procedure (the “Preventative Maintenance Service”) a minimum of two (2) times per year (i.e., every (6) six months) and also at the time of a scheduled repair pursuant to Section 3 below. If during the Preventative Maintenance visit it is determined repairs are needed, those repairs may only be performed if parts are available.
EMSAR will take preemptive measures whenever possible in anticipation of mitigating frequent repairs.
In the event that any Covered Equipment should become damaged (other than a Gross Defect) and require prompt repairs prior to a scheduled preventative maintenance visit, Client will notify EMSAR and EMSAR will dispatch a service technician as soon as scheduling allows, on such date and time mutually acceptable to both parties, to perform the necessary repairs (“Repair Services” and together with the Preventative Maintenance Service, the “Covered Services”).
Any Covered Services will be scheduled in advance on such date and time that is mutually acceptable to both parties. It is Client’s responsibility to make the applicable Covered Equipment available to EMSAR for service at the scheduled time.
Client acknowledges that once services have been scheduled with EMSAR, EMSAR will expend significant time and effort in coordinating and staffing such services. In the event that Client cancels a scheduled service with less than one (1) business day’s notice to EMSAR, or the applicable Covered Equipment is not available to EMSAR for service at the scheduled time, Client will be charged for any travel-related expenses incurred by EMSAR, which will be evidenced by documentation submitted by EMSAR.
Accurate and complete records relating to any repairs and maintenance performed by EMSAR will be maintained by EMSAR and will be made available to Client upon request.
Unless and until sooner terminated as provided below, EMSAR will provide the services detailed in this Agreement for a term of thirty-six (36) months, beginning on the Commencement Date indicated below (the “Initial Term”), and thereafter, this Agreement will renew automatically for successive one-year periods.
The Agreement shall commence on the date indicated on Page 1 of the EMSAR Advantage Proposal entered into between the parties and shall continue until EMSAR ceases to provide Services or the Agreement is canceled by either party by giving a ninety (90) days prior written notice of any such cancellation to the other party. If this Agreement is canceled during or before the expiration date of the Agreement, Customer will owe for the months covered up to the cancellation date of the Agreement and for any parts, labor, and travel charges, required to maintain Equipment, exceeding that already paid during the Agreement. In the event Customer has pre-paid for the services hereunder, any unused amount as of the date of cancellation shall be returned to the Customer on a pro-rata basis.
Prior to termination of this Agreement, EMSAR reserves the right to suspend any and all services under this Agreement while Client is in default or breach of any terms of this Agreement.
EMSAR agrees to hold firm the rates per item as set forth in Appendix I on the date hereof for the Initial Term. Each year thereafter, such rates will automatically adjust to account for inflation and increases in costs-of-living. As such, each annual adjustment will not exceed three percent (3%), without further action or approval by either party.
Client agrees to pay EMSAR the proposed amount per annum for the Covered Services (the “Annual Fee”), subject to adjustments pursuant to Sections 7 and 8 hereof, which payment for the initial year of the Agreement will be due and payable in full at signing, and each subsequent yearly payment will be due and payable at each anniversary of the date of this Agreement.
All quoted prices are exclusive of taxes, if applicable.
EMSAR warrants that its service and parts will be free from defects in material and workmanship for thirty (30) days from the date of service. This limited warranty applies to Covered Equipment used under normal and proper conditions and is void for any Gross Defects. Client’s sole remedy under this warranty is limited to repair or replacement of the defective part. To make a claim under this limited warranty, Client will promptly notify EMSAR.
EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, EMSAR MAKES NO OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED. EMSAR MAKES NO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL EMSAR BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES SUSTAINED IN CONNECTION WITH THE DELIVERY, USE, OR PERFORMANCE OF EMSAR’S SERVICES OR PARTS.
In no event will the aggregate liability of EMSAR, whether under contract, tort, or otherwise, exceed the aggregate Annual Fees actually received by EMSAR under this Agreement.
Client will defend, indemnify and hold EMSAR, its officers, managers, personnel, affiliates and agents (collectively, “Representatives”) harmless from and against any and all claims and demands (including damages, liabilities, losses and expenses, including reasonable attorney’s fees, incurred in connection with such claims and demands) (“Claims”) made by any third parties against EMSAR arising from or relating to the Covered Equipment or any bodily injury (including death) or property damage related to the use and/or misuse of the Covered Equipment, except to the extent such Claims arise from the negligence or willful misconduct of EMSAR or its Representatives.
Subject to the limitations in Section 10, EMSAR agrees to defend, indemnify and hold Client and its Representatives harmless from and against any and all Claims made by any third parties against Client in connection with the Covered Equipment arising from the negligence or willful misconduct of EMSAR or its Representatives.
Client acknowledges that EMSAR’s personnel and any person performing services on EMSAR’s behalf (collectively, “EMSAR Personnel”) are of great value to EMSAR and have been trained and developed by EMSAR at great cost. Client agrees that it will not, at any time during the term of this Agreement and for a period of two (2) years thereafter, directly or indirectly employ or engage, attempt to employ or engage, or otherwise solicit for employment or engagement any EMSAR Personnel, except with the prior written consent of EMSAR.
EMSAR will make every effort not to cancel or reschedule any scheduled services. Notwithstanding the foregoing, EMSAR will not be liable for any loss, damage or delay or failure to perform, in whole or in part, caused by events beyond EMSAR’s reasonable control, including, but not limited to, acts of God, natural disasters, disease, epidemics, pandemics (including COVID-19), acts or omissions of any governmental authority, riot, war or similar hostility, strikes, labor stoppages or slowdowns or other labor disturbances. In the event of any such delay or failure to perform, Client’s sole remedy against EMSAR will be to terminate this Agreement under Section 7.
This Agreement will be governed by and construed in accordance with the internal laws of the Client’s State as listed in the Advantage Proposal without reference to the rules of conflicts of laws thereof.
The provisions of Sections 7, 10, 11, 12, 14, 15 and 16 will survive the termination of this Agreement.
This Agreement will not be assigned by either party without the prior written consent of the other party, which consent will not unreasonably be withheld, conditioned or delayed. Notwithstanding the foregoing, EMSAR may assign this Agreement to a successor in interest upon a merger, reorganization, change of control, acquisition or sale of all or substantially all of the assets of EMSAR, or to a lender for collateral assignment purposes, in each case, without Client’s consent. Any assignment in violation of this Section will be void.
This Agreement including EMSAR Advantage Proposal Covered Equipment List may only be amended with the consent of both parties in writing.
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Wilmington, OH 45177
PO Box 202887
Austin, TX 78720
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