Cadwell Terms and Conditions

1. These Terms and Conditions (“Terms”) shall apply to any and all software, services, sales, and support that Cadwell Laboratories, Inc. or Cadwell Industries, Inc. (“Cadwell”) offers to Customers in the United States and territories and possessions (including the District of Columbia and Puerto Rico) who purchase, or have purchased, products (“Products”) or services (“Services”) from Cadwell, unless otherwise explicitly agreed in writing.

TERMS OF SALE

2. Except as specifically agreed otherwise in writing, Cadwell only sells Products and Services to commercial end users for use by persons trained and experienced with such Products and Services. Resale or distribution by third parties or use of Cadwell Products that does not comply with these Terms and Conditions voids the warranty and/or software license, and could result in legal action.

3. Payment terms are net 30 days on approved credit from the invoice date. All payments made after 30 calendar days are subject to a service charge equal to 2% of the total amount due for each month the payment is in arrears.

4. A minimum purchase of $25 is required for all Product and Services orders.

5. Quoted and online order prices do not include, and Customer acknowledges and agrees that it shall be responsible for any other amount, including without limitation, fees for export, customs duties, tariffs, special packaging, transportation, insurance and all federal, state and local charges, sales, use, gross receipts, excise, valued-added, services, or any similar transaction or consumption taxes (“Taxes”). Any such amount including Taxes, fees or charges imposed by any governmental authority on the transaction between Cadwell and Customer will be paid by Customer in addition to the price specified on the respective purchase order(s). If Customer is exempt from any such amount, Customer must provide to Cadwell a valid exemption.

6. Payment for all online orders must be made by credit card unless Customer has called or emailed Cadwell in advance to create a business account on approved credit (“Business Account”). Cadwell reserves the right to refuse to accept further online orders for delinquent Business Accounts.

7. Some Products are not available for purchase online and must be ordered by calling or emailing Cadwell and requesting a supplies specialist (“Special Order Products”). Special Order Products require a 50% deposit at the time the order is placed. Some Special Order Products have extended delivery times, as noted in the item description.

8. Customer may check the status of any order by calling or emailing Cadwell during normal working hours.

9. Cadwell reserves the right to modify its offered Products and Services including specifications, availability, pricing and shipping charges or method at any time.

10. Shipment is Delivered at Place (INCOTERMS 2020) at Customer’s specified destination, with the price of shipment billed to the Customer. Freight charges vary depending on shipment content and method.

a. Except in the case that Customer has contracted with Cadwell for installation, the Customer must notify Cadwell in writing within five (5) business days after delivery if Products do not conform to the Purchase Order, has been delivered after its expiration date, was improperly labeled or packed by Cadwell, shipped in error, or has been damaged during shipping. If Customer provides such notice, Customer shall be provided a return authorization or refund in accordance with the “Maintenance, Repair and Replacement” and “Returns and Refunds” sections below. If Customer does not so notify Cadwell, the Products shall be deemed accepted by Customer.  In the case that Customer has contracted with Cadwell for installation, Products shall be deemed accepted upon completion of installation as long as Customer has not opened any packaging prior to installation.  Notwithstanding the foregoing, Customer shall be permitted to open the packaging prior to installation upon the prior written authorization of Cadwell.

11. In the event Customer cancels the purchase after the Products have shipped, Customer agrees to reimburse Cadwell for actual costs incurred, including but not limited to, charges for restocking, training and freight.

 

PRODUCT WARRANTY

12. From the shipment date of Products to Customer and unless listed differently in Cadwell’s Supplies and Accessories Catalog, E-Store, or otherwise agreed upon in writing by the parties, Cadwell warrants for a period of one (1) year for new equipment, six (6) months for refurbished equipment, ninety (90) calendar days for equipment repairs, and ninety (90) calendar days for supplies and accessories, (the “Warranty Period”) that such Products are free of defects in material or workmanship (“Defect”). Within this Warranty Period for Cadwell equipment purchases, excluding the six (6) month refurbished equipment warranty, Customers will also receive a one (1) year CadCare Customer Support Program (“CadCare Program”) membership.  Electrodes, needles, and lead wires are not included in the CadCare Program.  The warranty does not cover removal of, or damage from, computer viruses or other malware.  When a Product, not manufactured by Cadwell, including without limitation a camera or computer, is purchased as an integrated part of Cadwell equipment, the warranty herein shall also cover such Product. Following the expiration of the applicable warranty period, Cadwell shall refer Customer to the original equipment manufacturer for such Product.

a. Except as expressly set forth herein, Cadwell makes no representations and grants no warranties, express or implied, either in fact or by operation of law, by statute or otherwise, and specifically disclaims any other warranties, whether written or oral, or express or implied, including without limitation, any warranty of quality, merchantability or fitness for a particular use or purpose.

b. In the event of a Defect covered by this warranty, Customer must supply Cadwell with notice of such Defect and an explanation of circumstances concerning any claim of the Defect within two (2) business days of the discovery of such Defect. Requests for warranty repairs or replacement should be made following the process outlined below.

c. If Product has been damaged, abused or misused through no fault of Cadwell, or if unauthorized attempts to modify, repair or service the Product have impaired the performance of the Product, this warrant will be void.

 

MAINTENANCE, REPAIR AND REPLACEMENT

13. In the case Customer requires maintenance, repair or replacement of a Product, Customer shall follow the steps below:

a. Call Cadwell with the Cadwell equipment serial number and customer identification number available.

b. For applications or operational support, Customer should request Cadwell’s Clinical Applications Department at (509) 735-6481.

c. For equipment repair, request Cadwell’s Technical Service Department at (509) 735-6481.

d. Cadwell may seek additional information to understand the nature of the issue or Defect and to determine whether such issue or Defect is covered under warranty or extended service contract.

e. Based on Customer’s request for services (“Service Request”), one of the service or applications support personnel may direct the Customer through basic diagnostic procedures on the Product.

f. If the issue or Defect is covered under a warranty or extended service contract and cannot be resolved through service or applications support, Cadwell may repair or replace the Product at its option pursuant to the terms of the Returns and Refunds Section below.

g. If a repair part needs to be sent to Customer, or if Customer must send in equipment to Cadwell for repair, a Service Request Order (SRO) number will be issued to Customer.

h. When Customer wishes to obtain updates on service, Customer shall identify the SRO number in the request.

i. 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.

14. Customer acknowledges that for optimum Product performance, Customer should schedule annual preventive maintenance with Cadwell for all Cadwell equipment.

15. Customer understands that Cadwell 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.

16. For Products not purchased from Cadwell, or for Products that are out of warranty or that are not covered under a Cadcare membership, Cadwell reserves the right to refuse service and/or require pre-inspection of equipment or set other conditions on a case-by-case basis.

17. Customer understands that these Terms and Conditions shall remain in effect until Cadwell announces the end of support for the underlying hardware or software for the Products, in which case Cadwell shall have the right to notify Customer that these Terms and Conditions have expired with respect to the Products.
 
 

RETURNS AND REFUNDS

18. If Customer desires to return Products to Cadwell for a refund, and Cadwell approves of such refund or return, then Customer must satisfy the following:

a. Customer shall obtain a Return Merchandise Authorization (“RMA”) number from Cadwell prior to return;

b. The Product must be returned to Cadwell within 30 days from the date the Product was received by Customer;

c. The Product must be returned to Cadwell in its original packaging, unopened and undamaged. If the Product has been opened and Cadwell has issued an “RMA” number, the equipment will be subject to a restocking fee; and

d. Customer must pay all shipping charges.

19. Notwithstanding the above,

a. Sterile-packaged Products that have been opened or the package damaged and any custom or Special Order Products may not be returned for a refund.

b. Returns based on a Defect, will be handled in accordance with the Products Warranty section above.

 

CADCARE CUSTOMER SUPPORT PROGRAM

20. With the purchase of a new or used piece of Cadwell equipment, Customer is automatically enrolled in the CadCare Program at no additional cost. Through the CadCare Program, Cadwell services and supports the Cadwell equipment, subject to Section 13, Products Warranty.

a. CadCare Program membership extends throughout the period of time during which Cadwell is able to service, support and provide software updates for the Cadwell equipment (“Functional Lifetime”).

b. CadCare Program membership is not transferable.

c. Cadwell offers CadCare extended service packages (“CadCare ESP”) for purchase after the end of the first year of CadCare Program. The terms for such can be found at Cadwell.com/CadCare or by contacting Cadwell for comprehensive CadCare Program details.

21. With CadCare Program membership, Customers who purchase CadLink Software and/or HL7 will also receive one (1) 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.

22. Customer acknowledges membership in the CadLink Software SMP ends after one (1) 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.

23. Year Two of Equipment Ownership and Beyond – CadCare Extended Service Plan Programs:
Customer acknowledges that one (1) year after Cadwell 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.

24. Billable Service and Repairs. Service and repairs provided outside of a CadCare membership shall be subject to the following terms:

a. Service and repairs will be subject to an hourly rate (“Billable Repairs”). The rate may change from time to time, and will be quoted to Customer at time of service or repair.

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 Cadwell equipment.

b. Customer will pay for shipping and handling of Billable Repairs.

 

SOFTWARE AND NETWORK SECURITY

25. 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 business with Customer.

b. Cadwell is not liable for third-party cybersecurity attacks upon Cadwell Products when such an attack is from Customer’s network.

c. Customer is responsible for maintaining the day-to-day security of its own 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.

26. 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.

27. 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.

28. 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.

29. Customer acknowledges that it is solely responsible for the day-to-day maintenance and functioning of its network.

 

TRAINING AND INSTALLATION

30. Cadwell offers on-site installation of applicable Cadwell Products (“Installation”) for an additional fee, which Customer may request with the purchase of Cadwell Products. Installation will be performed according to applicable Cadwell installation protocols.

31. 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.

32. 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.

33. For Cadwell Products 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.

34. Cadwell offers both on-site (Customer site) and remote training options for additional fees, which Customer may request with the purchase of equipment and/or software.

35. Customer acknowledges that it is responsible for ensuring the affected personnel are present for Cadwell training at the specified date and time.

 

LOANER EQUIPMENT

36. In the event that the Customer is eligible for loaner equipment under the applicable CadCare membership or service contract, Cadwell shall temporarily provide equipment, owned by Cadwell, to Customer for the period during which Customer’s equipment is being serviced by Cadwell, (“Loaner Equipment”) subject to the terms of this Section. Loaner Equipment is provided at no cost, except as provided in this Section.

a. If the Customer has initiated a Service Request Order (SRO) requiring the use of Loaner Equipment, Cadwell shall ship such Loaner Equipment to Customer via two-day shipping (overnight available at additional cost to Customer). In the same shipment, Cadwell shall include a shipping label for the return of Customer’s equipment to Cadwell.

b. Customer shall return the Customer’s equipment to Cadwell using the provided label.

c. If Cadwell does not receive Customer’s equipment within ten (10) business days of the date Cadwell shipped the Loaner Equipment, Customer shall be assessed $50 for each day thereafter that the Customer’s equipment is not received.

d. After repair of the Customer’s equipment, Cadwell shall ship the serviced Customer’s equipment to Customer with a shipping label for return of the Loaner Equipment.

e. Customer shall return the Loaner Equipment to Cadwell within seven (7) business days of receipt of its serviced Equipment.

f. Customer is liable for and shall be invoiced for repair of damage to the Loaner Equipment that is caused by abuse, misuse or unauthorized attempts to modify the Loaner Equipment.

MISCELLANEOUS

37. Entire Agreement. The parties agree that these Terms represent the entire understanding of the parties with respect to the subject matter of these Terms.  These Terms may be modified from time to time.  The most current version of these Terms will be published on cadwell.com/terms.  To the extent the Terms are in conflict with any other agreement or terms of the parties, the Terms herein shall govern unless specifically accepted in writing by Cadwell.  Any agreement or term offered by Customer in a purchase order or otherwise shall be considered a proposal and shall not become part of this agreement unless specifically accepted in writing by Cadwell.  Acknowledgement or acceptance of a purchase order does not constitute specific acceptance in writing.

38. Default and Remedy. Failure to pay according to the Terms is a default.  In the event of default, Cadwell may pursue any remedies at law or equity, including without limitation, declaring any amount outstanding due immediately, or without any further notice to Customer, Cadwell may retake possession of the Products securing the sale.

39. Security Interest. The Customer grants Cadwell a security interest in the Products described in the respective purchase order(s), including all added and substituted parts, accessories, and improvements made to the Products, until Customer has paid the full purchase price on such.  The Customer promises to keep the Products in good repair, and the Customer has no right to sell, lease, or otherwise dispose of the collateral.

40. 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 Products, including without limitation, products liability or physical injuries to person, or property, loss of life, or other claims or damages.

41. Intellectual Property. Customer acknowledges that Cadwell owns all right, title and interest in all proprietary Product designs and configurations, software and firmware purchased under these Terms, except to the extent that Cadwell has granted Customer a limited license in the software, a copy of which is available at  https://www.cadwell.com/software-license-agreement/.

42. 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.

43. Force Majeure. “Force Majeure” means any of the following events and circumstances:  a strike, lockout, riot, civil unrest, war, pandemic, act of terrorism, insurrection, fire, flood, windstorm, explosion, natural disaster, act of God or public enemy or any other event or circumstance that is beyond either party’s reasonable control.  Cadwell may delay delivery, or performance of the Products or Services ordered hereunder in the event of Force Majeure.  Cadwell shall deliver the Products or commence service when the Force Majeure affecting the delay is eliminated.

44. Severability. If any provision of these Terms is found unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein.

45. Dispute Resolution. In the event of any dispute, controversy or claim arising out of or relating to these Terms, or a breach thereof (“Dispute”), the parties shall endeavor, in good faith, to resolve the Dispute through reasonable negotiations.  If the parties fail to resolve the Dispute within a reasonable amount of time, the parties shall settle the Dispute through binding arbitration, by a single arbitrator, in Benton County, Washington, under the rules of the American Arbitration Association.  Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.  The substantially prevailing party in such arbitration shall be entitled to recover costs, including attorney’s fees as part of the award.

46. Time Limit on Customer Commencing Legal Actions. Customer must commence any such Dispute within one (1) year from the date the Dispute first occurred, or shall be barred from bringing such a Dispute thereafter.

47. No Waiver. The failure of Cadwell to enforce at any time, for any period, any provision hereof shall not be construed to be a waiver of such provision or of the right of Cadwell thereafter to enforce each such provision, nor shall any single or partial exercise of any right or remedy hereunder preclude Cadwell from any other or further exercise thereof or the exercise of any other right or remedy.

48. Jurisdiction. The Terms will be governed by the laws of the state of Washington, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Washington or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Washington.