EQUIPMENT USE AGREEMENT
THIS EQUIPMENT USE AGREEMENT (“Agreement”) is effective upon receipt of equipment by patient and is made by and between OVR Care Services, P.A., a Texas professional corporation whose mailing address is 501 Congress Ave., Suite 150 Austin, TX 78701 (“Provider”), and the patient (“You” or “Patient”) (each a “Party”, and collectively the “Parties”).
In consideration of the following covenants, terms and conditions, Provider makes available to Patient, and Patient accepts from Provider, the equipment described in Schedule A to this Agreement (the “Equipment”) for use during such time that, in the sole opinion of Provider, Patient is in need of the Equipment (the “Term”), subject to the following terms and conditions:
Use of Equipment. Patient shall be entitled to the possession of the Equipment solely for the express purpose designated on Schedule A (“Purpose”) during the Term. Patient’s use of the Equipment shall also be subject to the terms set forth in Schedule B to this Agreement (“Subscription Terms”). Patient shall not analyze, reverse engineer, clone, disassemble, decompile, attempt to modify, or make any other use of the Equipment (or any associated hardware or software) beyond the Purpose without the prior written consent of Provider. Patient may use Equipment at such times and at such locations as Provider instructs during the course of the Provider’s services under the Subscription Terms. Patient shall ensure that the Equipment (a) is only operated by Patient, (b) is operated in strict accordance with the instructions provided with the Equipment and the Provider’s instructions, (c) is not subjected to careless or reckless usage and (d) is not operated by anyone, including the Patient, while under the influence of drugs or alcohol. Patient may not make alterations or additions to the Equipment (or any associated hardware or software) without Provider’s prior written consent. Patient shall not alter, disfigure or cover up any marks of identification displayed on the Equipment. The furnishing of the Equipment under this Agreement shall not constitute any assignment, grant, option, or license to Patient under any patent, patent application, copyright, other intellectual property rights, or other rights now or hereafter held by Provider./
Fees: The fee payable by Patient for the Equipment shall be included as part of the Patient’s subscription for Provider’s services under the Subscription Terms. Patient shall be responsible for payment of subscription fees under the Subscription Terms regardless of any return or attempted return of the Equipment prior to the end of the Term.
Maintenance, Service and Repair. Patient agrees to maintain the Equipment in good repair and operating condition, allowing for reasonable wear and tear, and in conformity with all regular requirements contained in manufacturer documentation provided to Patient. Provider shall service and repair the Equipment, at its cost unless the same is necessitated by actions or omissions of Patient, in which case Provider will charge Patient as described in this Section 3 for the cost of such service or repairs. Patient shall notify Provider promptly in the event of the need for servicing or repair on the Equipment. In the event of an Equipment failure or other need for service or repair, Provider shall use commercially reasonable efforts to timely service or repair the Equipment. Should any Equipment failure occur during the Term, Patient shall return Equipment in the original packaging via FedEx using the enclosed return shipping label. Provider shall promptly inspect the Equipment after receipt of Patient’s notice of the need for service or repair of the Equipment or designate an authorized repair facility to inspect the Equipment. Provider shall repair or replace any nonfunctioning portion of the Equipment or parts thereof, and if the cost of such repair is the responsibility of Provider hereunder, Provider will not charge the Patient; otherwise, Patient shall be charged for any costs to Provider for such service or repairs. If Patient is responsible for the cost of such service or repair, then Provider will invoice Patient for, and Patient agrees to pay for, all such reasonable inspection and other service or repair expenses, including disassembly and reassembly of Equipment, and transportation costs to and from Provider’s facility. Patient’s subscription fees under the Subscription Terms shall not be abated during such time Equipment is out of operation for service or maintenance, all of which shall be at Patient’s risk and expense. In the event the Equipment becomes unavailable for more than sixty (60) consecutive days during the Term, unless as a result of a force majeure event or the act or omission of the Patient, Patient may terminate this Agreement without further obligation to Provider other than payment of all amounts then accrued and unpaid hereunder, and all other obligations that survive the termination of this Agreement. Other than providing this termination right, Provider makes no representations, warranties, or guarantees regarding the functionality, uptime, or efficacy of the Equipment (or any associated hardware or software).
Risk of Loss or Damage. During the Term and until returned to Provider in good repair, except for times when the Equipment is in the care, custody and control of Provider or its designee, the Equipment shall be held and used at the sole risk of Patient for injury, damage (including injury or damage to third parties and their property), loss, destruction or theft. Any damage to or diminution of value of the Equipment, as a result of Patient’s use thereof, shall be at the expense of Patient. Should the Equipment be destroyed, lost, stolen, damaged, or permanently rendered unfit for normal use while in the care, custody and control of the Patient, Patient agrees promptly to notify Provider in writing. In event of loss of or damage to the Equipment, Patient shall notify Provider in writing within twenty-four (24) hours after the occurrence. In the case of damage to the Equipment, Patient shall ship the Equipment to Provider in accordance with the shipping instructions provided in Section 3 of this Agreement. If the damage to the Equipment exceeds the Replacement Value set forth on Schedule A (“Replacement Value”) or the cost to repair the equipment exceeds the Replacement Value, then Patient shall be invoiced for the full Replacement Value for the Equipment. Patient shall have thirty (30) days from the date of issuance of the invoice to make payment in full to Provider.
Delivery, Acceptance and Return of Equipment. Provider shall ship the Equipment to Patient. All shipments are FOB shipping point via common carrier. Upon delivery of the Equipment to Patient, Patient shall inspect the Equipment, and Patient will notify Provider in writing if any of such Equipment is not in working condition. Unless Patient gives such written notice within ten (10) calendar days after delivery, it shall be conclusively presumed that Patient has fully inspected the Equipment, that it is in good condition and repair and that Patient has accepted the Equipment. Upon expiration of the Term or Termination of this Agreement, Patient, shall deliver such item of Equipment in the same condition as upon acceptance, ordinary wear and tear resulting from proper use alone excepted, and free and clear of encumbrances created or resulting from acts or omissions of Patient, to the address provided in the return shipping label and in accordance with the shipping instructions contained therein. In the event that Patient fails to return the Equipment within fourteen (14) calendar days after the end of the Term or Termination of this Agreement, then in addition to all of Provider’s other rights at law or in equity, the Patient shall be charged the fee set forth in Schedule A of this Agreement.
Status and Ownership of Equipment. The Equipment is, and will at all times remain, personal property. Title to the Equipment shall at all times remain in Provider, and Patient shall have only the right to possession and use of such Equipment pursuant to the terms and conditions of this Agreement. Nothing herein shall be construed as a commitment by Provider to sell or a commitment by Patient to purchase the Equipment at the expiration or termination of the Term or the termination of this Agreement. Patient shall give Provider immediate written notice of any claim, levy, lien or legal process issued against the Equipment. Provider reserves the right to substitute for the Equipment, equipment of equal or greater value with at least the same capacities, function and capabilities, at no additional charge to the Patient, and, following the consent of Patient, which shall not be unreasonably withheld, thereafter such substituted equipment shall be the “Equipment” for purposes of this Agreement.
NO WARRANTIES; LIMITATION OF LIABILITY. PROVIDER MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE DESIGN OR CONDITION OF, OR AS TO THE QUALITY OF THE EQUIPMENT OR WORKMANSHIP IN THE EQUIPMENT DELIVERED TO PATIENT HEREUNDER, AND PROVIDER DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS OF THE EQUIPMENT FOR ANY PARTICULAR PURPOSE, AND THE BENEFITS OF ANY AND ALL IMPLIED WARRANTIES OF PROVIDER, INCLUDING THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY WAIVED BY PATIENT. PATIENT ACKNOWLEDGES THAT IT HAS SELECTED THE EQUIPMENT ON THE BASIS OF ITS OWN JUDGMENT AND EXPRESSLY DISCLAIMS ANY RELIANCE UPON ANY STATEMENTS OR REPRESENTATIONS MADE BY PROVIDER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL PROVIDER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING WITHOUT LIMITATION, LOSS OF USE, LOST PROFITS, DOWNTIME, COST OF SUBSTITUTE EQUIPMENT, DAMAGE TO OR LOSS OF PRODUCT OR MATERIALS, OR OTHER ECONOMIC LOSS ARISING OUT OF THIS AGREEMENT OR FROM THE USE OF THE EQUIPMENT, INCLUDING FAILURE OF THE EQUIPMENT TO OPERATE PROPERLY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, PROVIDER’S TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT FOR ANY CLAIMS WHETHER IN CONTRACT, WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHERWISE, OR FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH THIS AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF, SHALL IN NO EVENT EXCEED ONE THOUSAND DOLLARS.
Events Constituting Default. The following events shall constitute default by Patient under this Agreement:
The nonpayment by Patient for applicable subscription fees under the Subscription Terms for a period of thirty (30) days following the due date for payment of such fees payable to Provider;
The nonperformance by Patient of any other covenant or condition of this Agreement that is not cured within thirty (30) days after written notice from Provider.
Provider’s Rights on Default. On the occurrence of any of the events defined in Section 8 as constituting default, Provider may without notice to or demand on Patient:
Terminate this Agreement and declare due and receive from Patient (i) the sum of all amounts due to Provider and owing under the Subscription Terms, plus (ii) the sum of any other amount to become payable during the balance of the Term, plus (iii) if the Equipment is not returned to Provider in accordance with Section 5, the Replacement Value thereof; or
Terminate this Agreement and take possession of the Equipment (without any court order or other process of law), for such period and such amount, and to such persons, as Provider shall elect, and apply the proceeds of any such leasing, after deducting all costs and expenses incurred in connection with the recovery, repair, storage, and renting of the Equipment, in payment of the amounts and other obligations due from Patient to Provider, Patient remaining responsible for any deficiency. All amounts owing to Provider pursuant to this Section 11 shall bear interest at the lesser of twelve percent (12%) per annum or the maximum amount allowed by law, until paid.
Patient waives all claims it may have against Provider under this Agreement and assumes all liability for damages that may arise from Patient’s use, handling, storage or disposal of the Equipment. Provider will not be liable to Patient for any loss, claim or demand made by Patient or made against Patient by any other party to the extent permitted by law. While the Equipment is in its care, custody and control of any Patient, Patient assumes all risks of liability arising from or pertaining to the possession, operation, maintenance, use, condition, transportation, or disposition of any Equipment or the return of any Equipment to Provider (collectively, “Equipment Risks”), and hereby releases and shall indemnify, defend, save and hold harmless Provider and its officers, directors, employees, servants, representatives and agents, from and against, any and all claims, demands, losses, costs, expenses, fines, damages and liabilities (including reasonable attorney’s fees and costs of defense) (collectively “Claims”) directly or indirectly arising from or pertaining to Equipment Risks, specifically including without limitation any Claims arising, directly or indirectly: (a) by reason of the injury or death to person or damage to or loss of property from whatever cause, including, but not limited to, any liability for injury or death to the person or damage to or loss of personal property of Patient, its agents, representatives, contractors or employees; (b) by reason of any unauthorized work performed on the Equipment; or (c) by reason of Patient’s failure to perform any obligation under this Agreement or to comply with any requirement imposed on Patient with respect to the Equipment by any duly authorized governmental agency or political subdivision. In case of any action or proceeding brought against Provider by reason of any Equipment Risk for which Patient is responsible under this paragraph (a), upon notice from Provider, Patient covenants to defend such action or proceeding, by counsel reasonably satisfactory to Provider. Any amount required to be paid by Patient under this Section that Patient fails to pay may be paid by Provider and shall, at Provider’s option, become immediately due from Patient to Provider. Patient shall be jointly and severally liable with any third party that, through Patient’s action or inaction, access the Equipment (or any associated hardware or software) and engages in any action or inaction that, if performed by Patient, would violate the terms of this Agreement.
The Patient’s obligations contained in this Section shall survive the termination of this Agreement. THE PATIENT’S ASSUMPTION OF RISK AND THEIR INDEMNITY OBLIGATIONS UNDER THIS SECTION 10 SHALL APPLY AND BE ENFORCEABLE NOTWITHSTANDING THE FAULT OR RESPONSIBILITY OF ANY INDEMNITEE, INCLUDING WITHOUT LIMITATION, THE NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, REPRESENTATION OR WARRANTY, OR OTHER LEGAL FAULT OF AN INDEMNITEE.
Confidentiality. The Patient shall not disclose the terms of this Agreement or any non-public information concerning the Provider or its business to any third party without prior express written consent of the Provider.
Notices. Any notices to be given under this Agreement shall be given in writing to the other party at the addresses as designated herein or such other address as such party may have specified by written notice, and shall be deemed effectively given upon personal delivery, by facsimile transmission on the next business day showing confirmation of transmission, or upon delivery by a nationally recognized overnight courier.
No Waiver. No failure on the part of a Party to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by a Party of any right hereunder preclude any other further exercise thereof or the exercise of any other right.
Time of Essence. Time is of the essence in the performance of the obligations pursuant to this Agreement.
Entire Agreement. This Agreement, Schedule A attached hereto and incorporated herein, and Schedule B attached hereto and incorporated herein represent the entire agreement between Provider and Patient as to lease of the Equipment and may not be altered, amended, changed, or terminated without an agreement in writing signed by a responsible officer of Provider.
Severability. If any provision of this Agreement or the application thereof to any person or circumstance shall at any time or to any extent, be invalid or unenforceable, then such provision shall be deemed revised and applied to the maximum extent allowed by applicable law, and the remaining provisions of this Agreement shall not be affected thereby and shall continue to be valid and enforceable.
Governing Law. This Agreement is entered into in and shall be governed and construed in accordance with the laws of the State of Texas without regard to its conflict of laws principles. The parties submit to the exclusive jurisdiction of the state and federal courts located in Austin, Texas for all disputes arising from or relating to this Agreement.
Further Assurance. Patient will promptly execute and deliver to Provider such further documents and take such action as Provider may request in order to more effectively carry out the intent and purpose hereof.
Successors and Assigns. Patient party may not assign this Agreement or any Equipment leased under this Agreement, or any interest in this Agreement or the Equipment without Provider’s prior written consent. Any purported assignment in violation of this Section shall be null and void.
Survival. Following the expiration or termination of this Agreement, the Parties shall continue to be liable for all obligations under this Agreement that expressly survive the termination or expiration of this Agreement.
Remedies. No remedy referred to in this Agreement is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available at law or in equity. Either party that is required to retain legal counsel to enforce its rights or remedies under this Agreement shall be entitled to recover from the other party all costs and expenses, including without limitation reasonable attorneys’ fees and expenses, incurred by such non-breaching party in enforcing its rights.
In witness whereof, each party has caused this Agreement to be executed on the date set forth in the introductory paragraph of this Agreement.
This Schedule A to the Agreement is attached to and made a part of the Agreement made by and between Patient and Provider.
Purpose: Virtual reality mental health practice sessions
Equipment: Virtual Reality Glasses: HTC Vive
Replacement Value: $699.00
Point of Delivery: Patient address
Point of Return: See Section 3 of the Agreement.
This Schedule B to the Agreement is attached to and made a part of the Agreement made by and between Patient and Provider.
To simplify the user experience on the Digital Services, you are able to pay for services via the Digital Services with OVR serving as payment processing agent on your behalf. We accept credit and debit cards issued by U.S. banks (your “payment method”). You and OVR agree that the payment method you submit may be used automatically by OVR and its payment processors for any of your responsibilities for payment. If a credit card account is being used for a transaction, OVR may obtain preapproval for an amount up to the amount of the payment. You agree to allow OVR’s third party payment processor to securely store your payment method. Upon enrollment in our services, all charges and fees will be billed to the payment method you designate during the setup process. You understand and acknowledge that services may be cancelled or withheld if you revoke this authorization, and that you are still responsible for all charges incurred by you or are otherwise owed to OVR. This authorization will remain in full force and effect until revoked by you or OVR. If you want to designate a different payment method or if there is a change in your payment method, you must change your information online. This may temporarily delay your ability to make online payments while we verify your new payment information.