1. The Terms and Conditions of Service (“Service Terms”) apply to all services and support that Cadwell offers to Customers who purchase equipment from Cadwell.
2. With the purchase of a new piece of Cadwell Equipment, Customer is enrolled in the CadCare Customer Support Program (“CadCare Program”). Through the CadCare Program, Cadwell delivers all Equipment services and support.*
a. CadCare Program membership extends throughout the functional lifetime (“Functional Lifetime”) of the Equipment. Functional Lifetime is the period of time during which Cadwell is able to service, support and provide software updates for the Equipment.
b. CadCare Program membership benefits change after the first year of CadCare Program membership.
c. Cadwell offers CadCare Extended Service Packages (“CadCare ESP”) for purchase after the end of the first year of CadCare Program.
3. These Terms are not intended to be a complete description of any CadCare Program. See www.Cadwell.com/CadCare or contact Cadwell for comprehensive CadCare Program details.
4. Cadwell recognizes that Customers purchased existing service contracts prior to the commencement of the CadCare Program (“Existing Service Contracts”). Cadwell shall continue to honor the Existing Service Contract(s) throughout the duration of its term. At the conclusion of the Existing Service Contract term, Customer may enroll in the CadCare Program and select a comparable CadCare ESP to ensure continued equipment and software service and maintenance.
New Equipment Purchase – First Year CadCare Program Membership
5. With the first year of CadCare Program membership, Customer receives a one-year, non-transferable warranty (“Warranty”) against defects in materials and workmanship.
a. The Warranty commences upon the date of shipment.
b. During the Warranty period, Cadwell will repair, or, at its option, replace any Equipment that Cadwell deems to be defective.
i. The Warranty shall not apply to any Equipment that has been damaged, abused, or misused while in Customer’s care, or if unauthorized attempts have been made to modify or repair the equipment, which may impair the performance of the instrument.
ii. Repair parts are sent second-day air service to Customer, free of charge.
iii. Overnight and weekend services are available for an additional charge.
c. The Warranty shall not cover removal of, or damage from, computer viruses.
d. The first annual preventive maintenance and system calibration (“Preventive Maintenance”) is included in the first year CadCare Program membership.
6. With CadCare Program membership, Customers who purchase CadLink Software and/or HL7 will also receive one year of membership in the CadLink Software Support and Maintenance Program (“CadLink Software SMP”). Customer acknowledges that some features of the CadLink Software SMP are only available for regional server, HL7 and multi-facility environments.
7. Customer understands that additional CadCare Program service options may be purchased during the first year. These options are available
Year Two of Equipment Ownership and Beyond – CadCare Extended Service Plan Programs
8. Customer acknowledges that one year after Equipment purchase, certain benefits of the CadCare Program first-year membership may become chargeable services depending on which one of the available CadCare ESPs that Customer chooses to purchase. The CadCare ESPs and respective coverages are described in detail at www.cadwell.com/CadCare.
9. If Customer chooses not to purchase a CadCare ESP or selects a CadCare ESP that does not include service and repairs, the CadCare Program benefits will change after the first year of membership. Changes include, but are not limited to the following:
a. Customer will be charged an hourly rate for service and repairs (“Billable Repairs”).
i. Billable Repairs shall be covered by a 90-day service warranty (“Billable Repair Warranty”).
ii. The Billable Repair Warranty applies only to Billable Repairs made to the Equipment.
b. Customer will pay for shipping and handling for Equipment repairs.
c. Preventive Maintenance will become a billable service.
10. Customer acknowledges membership in the CadLink Software SMP ends after one year. If Customer chooses not to continue enrollment in the CadLink Software SMP, then CadLink and HL7 software support and maintenance will be available by request at the then current hourly billable rate with a $500 minimum fee. Customer further understands the following:
a. Certain CadCare ESPs include membership in the CadLink Software SMP.
b. Enrollment in CadLink SMP may be purchased separately from a CadCare ESP.
11. Customer understands that Cadwell offers guidance and resources for choosing which CadCare ESP a Customer should purchase; however, Cadwell is not responsible for Customer’s final purchase decision. Customer acknowledges that Cadwell bears no liability for charges that Customer incurs as a result of the decision to not purchase a CadCare ESP or the decision to purchase a particular CadCare ESP.
12. Customer may at any time upgrade to a CadCare ESP that includes more benefits. Service Procedure for Equipment
13. Regardless of whether Customer opts to purchase a CadCare ESP, Customer understands it is to follow the procedures in this section in the event of Equipment issues.
14. When an Equipment issue occurs, Customer shall follow the steps below:
a. With the Equipment, serial number, and customer identification number available, call Cadwell.
b. For applications or operational support, Customer should request the Clinical Applications Department.
c. For Equipment repair, request the Technical Service Department.
d. Based on Customer’s request (“Service Request”), one of the service or applications support personnel may direct the Customer through basic diagnostic procedures on the Equipment.
15. If a repair part needs to be sent to Customer, or if Customer must send in the Equipment to Cadwell for repair, a Service Request Order (SRO) number will be issued to Customer.
a. When Customer wishes to obtain updates on service, Customer shall identify the SRO number in the request.
b. If the Equipment must be returned for service, Customer shall return it in the original or appropriate shipping container with the SRO number clearly written on the box.
Software and Network Security
16. Customer understands and acknowledges the following:
a. Cadwell does not maintain any proprietary, statutorily protected or confidential data on behalf of Customer in the normal course of Services provided to Customer.
b. Equipment is only as secure from third-party threats as the network into which it is integrated (“Customer Network”) is secured from third-party threats.
c. Customer, not Cadwell, is responsible for maintaining the day-to-day security of the Customer Network.
d. In the course of responding to Customer’s Service Request, Cadwell may, with Customer’s permission and appropriate log-in credentials, remotely access the Customer Network to diagnose and/or repair Equipment or Software issues.
17. Cadwell acknowledges that it contracts with an independent organization to periodically review its Software for security flaws. Each review covers common software and business process vulnerabilities, including third-party components and libraries.
18. Cadwell will use its best efforts to track all security issues uncovered during the software development lifecycle, whether design, implementation, testing, deployment or operational issues. The risk associated with each security issue will be evaluated and documented by Cadwell, and Cadwell will implement a fix, patch, or other measure to remedy the issue as soon as possible after discovery. Cadwell shall make commercially feasible efforts to fix high-level issues found as quickly as possible, and will, where applicable include details about any material incidents in its release notes.
19. Cadwell and Customer agree at all times to maintain the following on their respective networks: network firewall provisioning, intrusion detection, and regular vulnerability assessments. Cadwell and Customer further agree to maintain network security that conforms to generally recognized industry standards and best practices.
20. Customer understands that the CadLink Software SMP does not apply to general network, application or software problems not related to proper operation of CadLink products.
21. Customer acknowledges that it is solely responsible for the day-to-day maintenance and functioning of its network.
Training and Installation
22. Cadwell offers on-site installation (“Installation”) for a fee, which Customer may request with the purchase of Equipment and/or software. Installation will be performed according to applicable Cadwell installation protocols. 23. Customer acknowledges that for a successful Installation, Customer’s IT personnel must cooperate in providing accurate network configuration information to Cadwell. Customer acknowledges that some physical changes may be necessary prior to the Installation to ensure site readiness, for which Customer shall be responsible.
24. Cadwell reserves the right to cancel Installation and charge Customer for any applicable rebooking fees should Customer, at Cadwell’s sole discretion, not be prepared for Installation including but not limited to IT network readiness, Customer supplied equipment readiness, facilities readiness, and all required personnel being available for training,
25. For Equipment that will be operated on or in connection with Customer supplied hardware or software, Customer is responsible for ensuring its hardware and software conform to Cadwell minimum hardware and software requirements as made available to Customer.
26. Cadwell offers both on-site (Customer site) and remote training options for a fee, which Customer may request with the purchase of Equipment and/or Software.
27. Customer acknowledges that it is responsible for ensuring the affected personnel are present for Cadwell training at the specific date and time. Requests for repeat training sessions will be considered by Cadwell for a fee but cannot be guaranteed.
Conditions of Equipment Ownership
28. Annual Preventive Maintenance. Customer acknowledges that for optimum Equipment performance, Customer should schedule annual Preventive Maintenance with Cadwell.
29. Equipment Functional Lifetime. Customer understands that Equipment functionality may slowly diminish as software updates are no longer provided and parts become obsolete, at which time the Functional Lifetime of the Equipment may cease.
30. Product End of Life. Customer understands that the Terms shall remain in effect until Cadwell announces the end of support for the underlying hardware or software for the equipment, in which case Cadwell shall have the right to notify Customer that these Terms have expired with respect to the Equipment.
31. Scope. Customer’s request for any Services that are beyond the scope of the Terms herein are not binding on Cadwell unless Cadwell agrees to provide such Services.
32. Entire Agreement. The Parties agree that these Terms represent the entire understanding of the Parties with respect to Services. These terms shall not be modified or amended except in writing and signed by both Customer and Cadwell.
33. Warranty Exclusions.
(a) Except as expressly set forth herein, there is no warranty, expressed or implied as to fitness for any particular purpose or merchantability, nor to anything else unless contained in these Terms.
(b) Representatives of Cadwell are not authorized to make warranties about the equipment. Oral statements do not constitute any aspect of the Warranty or CadCare Program.
(c) Consumables such as electrodes, needles and lead wires are not included under the Warranty or CadCare Program.
34. Indemnification. Customer agrees to indemnify Cadwell and hold it harmless from any and all demands or claims of any nature whatsoever arising out of the use of the Equipment, including products liability or physical injuries to person, or property, loss of life, or other claims or damages.
35. Business Use. Except as expressly provided by Cadwell in writing, all goods sold hereunder are intended for the ultimate use by a commercial user and for operation by persons trained and experienced in the use and maintenance of such equipment. No warranty shall extend to any consumer.
36. Exclusive Remedy and Limitation of Damages. The parties agree that the Customer’s sole and exclusive remedy against Cadwell shall be for the repair and/or replacement of defective parts as provided herein. Customer agrees that no other remedy shall be available to them and that Cadwell shall not, in any event, be liable for incidental damages or consequential damages, including loss of income, loss of time, lost sales, injury to person or personal property, liability customer had with respect to any other person, or for any other type of formal consequential damage or economic loss.
37. Force Majeure. Neither party shall be liable to the other party in respect of any delay or failure to perform that results from any event or cause that is beyond the reasonable control of the party obligated to perform.
38. Severability. If any provision or clause of these Terms or the application thereof to any person of circumstance is held invalid or unconscionable, such invalidity or unconscionability shall not affect other provisions or applications of the Service Terms which can be given without the invalid or unconscionable provision or application, and to this end these Terms are declared to be severable.
39. Cost of Legal Action. In the event any action shall be instituted for the failure to perform the Service Terms, the prevailing party shall be entitled to recover costs, including attorney’s fees.
40. Time Limit on Customer Commencing Legal Actions. An action by the Customer for breach of the Services Terms or any other action by Customer otherwise arising out of this transaction must be commenced within one year from the date the right, claim, demand or cause of action shall first accrue, or be barred forever.
41. No Waiver. If Cadwell at its option agrees to a waiver of any of the Service Terms recited herein, such waiver shall not for any purpose be construed as a waiver of any succeeding breach of the same or any other Terms; nor shall such a waiver be viewed as a course of performance.
42. Jurisdiction. The Service Terms herein will be governed by the laws of the state of Washington.
*Special Considerations: If Customer purchases refurbished Equipment from Cadwell, Customer receives a six-month Warranty and enrollment in the CadCare Program. If Customer acquires Cadwell Equipment from a third-party seller, Customer may enroll in the CadCare Program.