This Service Agreement provides the terms under which Candela Corporation and its affiliates d/b/a Candela agrees to provide service to Customer for defects in materials and workmanship (“Service”) for the Equipment listed above. The term shall be for the Service Period identified above. The rights granted to the Customer herein are limited solely to the Customer named above and apply only to Equipment that has been continuously covered by a Candela Service Agreement from the date of its original purchase. In the event that Customer desires coverage for Equipment for which coverage has not been continuously maintained, the Customer agrees that this Service Agreement shall be effective only after Candela has determined that the Equipment is suitable for coverage under this Service Agreement and Customer agrees to pay Candela’s Reinstatement Fee. This Service Agreement is not transferable or assignable by the Customer.
Unless otherwise noted, the Price for Services listed above specifically excludes items listed under Repairs and Services Not Covered by this Service Agreement. Customer forfeits any Price discounts given by Candela, toward this Service Agreement, in the event the Customer fails to meet the payment terms outlined in section above. Upon forfeiture, the Customer agrees to pay the additional amounts. A breach of the terms of this section shall be considered a breach of this Service Agreement and shall be cause for termination of this Service Agreement solely at Candela’s option. Overdue payments shall be subject to interest, computed at a periodic rate equal to the lesser of (i) Libor + 2% per month; or (ii) the highest rate permitted under applicable law. All amounts owed by Customer shall be paid in full without setoff. Customer shall pay Candela the sum of Fifty Dollars ($50.00) per check for any check returned due to non-sufficient funds.
In the event the Customer fails to pay all amounts when due, Candela may, with or without notice, take any and all actions available to collect said amounts, including but not limited to enforcement of its security interest, referral to outside collection agencies and/or commencement of legal action. Candela’s rights shall be cumulative, and it shall not be required to have recourse to any collateral before taking any other collection actions. The Customer agrees to pay all costs of collection, including but not limited to reasonable attorney fees, which may be incurred by Candela, or any assignee.
Service coverage under this Service Agreement will be automatically suspended during periods of non-payment of any charges due to Candela by the Customer (including cases where Customer’s check does not clear). Service coverage shall recommence when Candela receives payment in full of any and all charges due. Note that although service will not be available during any period of non-payment, the Service Agreement period will continue to run during such time.
Customers whose Equipment far exceeds average operating rates require additional service, additional consumables, and additional preventative maintenance (PM) per calibration verification procedures, over the course of the Term. To this end, Candela has reviewed the Equipment’s operating rate and determined whether or not the Equipment is heavily used. If heavily used, Candela adds preventative maintenance (PM) per calibration verification procedures visits, and a premium to the standard contract list price that’s included in the Price.
Service and Repair of the Equipment
For the Equipment listed above, Candela will, within the applicable Service Period, at Candela's sole option, repair or replace any defects in the Equipment or in Candela’s workmanship without any costs to the Customer for parts or labor (except as specifically stated below). To the extent that Candela determines that it should replace Equipment, Candela may do so using other Equipment that is of the same model and year (or later) of manufacture and in good working order. Candela will provide all necessary labor, travel expenses, and parts (unless otherwise noted) and agrees to use its best efforts to respond to Customer within 24 hours of notification of needed service and repairs, and to use its best efforts to be onsite within 48 hours of response to Customer, excluding weekend and holidays, unless the Customer has requested a later date.
Candela agrees to provide regular and emergency ON-CALL service as described under Regular Service Hours. For the Service Period, an annual Preventative Maintenance (PM)/Calibration Verification Check shall be provided, subject to Candela’s then current policies. Candela shall, at its sole discretion, provide performance related equipment enhancements and updates that can be installed in the field. The delivery and installation of field enhancements and updates to the Equipment is at Candela's discretion.
Customer agrees that no customer service person, third party service person, or other personnel, not authorized by Candela in this Service Agreement, shall be allowed to perform any service, repair or maintenance on the Equipment, during the term of this Service Agreement. A breach of the terms of this section shall be considered a breach of this Service Agreement and shall be cause for termination of this Service Agreement solely at Candela’s option.
Customer shall ensure all personnel operating the Equipment adequately trained. Customer may purchase training as to the maintenance and operation of the Equipment with the purchase of this Service Agreement. The cost of training (including travel and other expenses) is not included in this Service Agreement, and such cost shall be borne by the Customer, unless otherwise noted.
Customer is responsible for the purchase and installation of consumables such as cryogen, delivery system components (including fiber, handpiece, slider, and DCD delivery system) and distance gauges from Candela. If Customer is unable to satisfy this section at any time during the Service Period, and repairs or services become necessary, the customer agrees to obtain services from Candela at the then current service fee(s). The customer agrees to pay Candela for all services and parts required to repair said damages, at the then current fees.
Customer agrees to provide Candela’s service personnel with an adequate working environment that includes proper environmental and electrical requirements that are specified in the Equipment operator manual. The Customer agrees to provide proper access to the laser equipment during regular service hours. If the Customer cannot provide proper access to the Equipment within the hours listed, the Customer agrees to pay Candela for all labor hours that fall outside the hours listed under Regular Service Hours, at the then current fees.
Customer agrees to operate the Equipment within the environmental and electrical specifications outlined in the Equipment operator’s manual. This Service Agreement does not cover failures and problems that result from Customer’s use of the Equipment outside of these specifications and Customer agrees to pay Candela for all service and parts necessitated by such operation, at the then current time and material rates.
Customer agrees to purchase any service and/or parts necessary in repairing the Equipment due to faults resulting from Customer misuse, i.e. noncompliance with Candela’s clinical instruction or failure to adhere to cleaning accessories or consumables or policies and procedures outlined in this Service Agreement or the Equipment operator’s manual.
Customer agrees to purchase any service and/or parts necessary in repairing the Equipment due to faults or conditions that preexisted the Service Period. Candela may at its option absorb portions of those services and parts under this Service Agreement.
Repairs and Services Not Covered by this Service Agreement
This Service Agreement does not cover any Equipment, including applicators, which has been (i) damaged by accident, misuse (including improper storage), abuse, in the Purchaser’s transportation of the Equipment, or by an act of God, (ii) modified; (iii) used in violation of the instructions for use and operation, (iv) used for any purpose other than one for which the Equipment was manufactured, (v) repaired by an unauthorized service provider (vi) used with unauthorized parts, and/or (vii) used by unauthorized persons, collectively and individually “Warranty Exclusions”). The occurrence of any Warranty Exclusion voids this Service Agreement.
Candela restricts Equipment access to the Customer and its authorized representatives. Fees will apply for access to Equipment and to requests for Candela service after voiding, termination or expiration of warranty or Service Agreement.
Equipment and Accessories/Consumables
Accessories and consumables are not included in this Service Agreement, unless otherwise specified. If any consumables are included in this Agreement, they will only be available during the Agreement coverage period. Accessories and consumables are to be purchased as needed by the Customer at the then current fees.
Candela may at its discretion perform factory evaluations on certain accessories and consumables that fail while in the operation of the Equipment listed on the first page during the term of this Service Agreement. Based on those evaluation results, Candela may opt to issue a partial credit for failures not resulting from Customer misuse or normal wear and tear. Normal wear and tear is a function of its length of time in service as well as the amount of usage. Customers operating heavily used equipment can expect more frequent failures of accessories and consumable items. Customer agrees to obtain prior Candela approval for all returns. All factory evaluations are subject to Candela’s Return Materials Authorization policy.
Customer agrees to use exclusively those accessories and consumables (or subassemblies thereof) that are manufactured and/or distributed solely by Candela, in the operation of the Equipment listed on the first page.
A breach of the terms of this section shall be considered a breach of this Service Agreement, and shall be cause for termination solely at Candela’s option.
Shipment, Freight and Taxes
Candela shall ship all consumables f.o.b. Candela facilities, by carriers designated by Candela and reasonably acceptable to Customer. Candela shall prepay all freight costs incurred in delivery of consumables to Customer's receiving address and shall invoice Customer (unless otherwise noted) for such costs for consumables. Customer shall be responsible for and pay all sales, use, excise and similar taxes imposed by any governmental authority on the purchase of parts, consumables, and labor.
Candela shall make available to Customer access to service reports to note all service, repair and maintenance activities to the Equipment listed on the first page. Candela will employ internet-based technologies as its sole means of generating service reports.
This Service Agreement is considered confidential information (“Confidential Information”) of Candela. Customer shall maintain all Confidential Information in strict confidence and shall not disclose Confidential Information to any third party.
Disclaimer and Limitation of Liability
THIS SERVICE AGREEMENT IS THE EXCLUSIVE REMEDY AGAINST CANDELA AND NO OTHER REMEDY SHALL BE AVAILABLE. THIS SERVICE AGREEMENT IS IN LIEU OF ANY OTHER SERVICE AGREEMENT, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THE EQUIPMENT’S COMPLIANCE WITH APPLICABLE LAWS, ALL OF WHICH ARE HEREBY DISCLAIMED. ANY REPRESENTATIONS OR PROMISES INCONSISTENT WITH OR IN ADDITION TO THIS SERVICE AGREEMENT ARE UNAUTHORIZED AND SHALL NOT BE BINDING UPON CANDELA. THIS SERVICE AGREEMENT DOES NOT EXTEND TO ANY MACHINERY, APPLIANCES OR PROPERTY OF THE CUSTOMER USED IN CONJUNCTION WITH OR CONNECTED TO THE EQUIPMENT. LEASE NOTE THAT SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED SERVICE AGREEMENT LASTS OR DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER. CUSTOMER SHOULD CONSULT WITH ITS COUNSEL TO DETERMINE THE APPLICABILITY OF THE ABOVE LIMITATIONS ON CUSTOMER.
IN NO EVENT SHALL CANDELA BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR INJURY TO PERSON OR PROPERTY, LOST PROFITS, LOST SALES, LOST BUSINESS OPPORTUNITY, LOST SAVINGS OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL LOSS), WHETHER FORESEEABLE OR NOT, THAT ARE IN ANY WAY RELATED TO THIS SERVICE AGREEMENT, THE USE OR INABILITY TO USE THE EQUIPMENT, THE RESULTS GENERATED FROM THE EQUIPMENT, THE QUALITY OF THE EQUIPMENT, ANY DEFECT IN THE EQUIPMENT, FAILURE OF THE EQUIPMENT TO PERFORM AS REPRESENTED OR EXPECTED, LOSS OF GOODWILL OR PROFITS AND/OR ANY OTHER CAUSE WHATSOEVER.
Customer may not assign any of its rights or obligations under this Service Agreement without the prior written consent of Candela. Such consent shall be given solely at the discretion of Candela. Any attempted assignment in contravention of this section shall be null and void. Candela may, at any time, without prior notice, assign or transfer any of its obligations under this Service Agreement and Customer shall on request execute such documents recording Candela’s transfer of such obligations.
Either party has the right to terminate this Service Agreement on the other party's "Event of Default" upon written notice to the defaulting party of said Event. The following are "Events of Default" under this Service Agreement:
(a) the failure to make any payment of principal or interest hereunder within ten (10) days of its due date;
(b) the failure to perform any of each party's obligations under this Service Agreement, which failure is not cured within (30) days of the other party's notice to this effect, or if said failure cannot be cured within thirty (30) days, the breaching party's failure to diligently pursue such cure as quickly as possible;
(c) the falsity, in any material respect, of any representation or statement made or and called for by this Service Agreement. The termination of this Service Agreement for Customer’s breach does not relieve Customer from its obligations to make payments in full in accordance with the terms herein.
Fees will apply to requests for Candela service after voiding, termination or expiration of warranty or Service Agreement.
Neither party shall be liable for any failure or delay in performing its obligations hereunder which is caused by fire, strike, war, governmental action or other cause beyond the control of such party, provided that:
(a) such party takes diligent action to perform its obligations as promptly as possible, thereafter and
(b) no failure or delay to make payment shall be excused by reason of this section.
Governing Law, Jurisdiction and Venue
This Service Agreement, and the rights and remedies provided hereunder, and all claims, disputes and controversies arising hereunder or related hereto, shall be governed by and construed under and enforced in accordance with the internal laws of the Commonwealth of Massachusetts, without reference to choice of law or conflicts of law principles. The Customer and other party who asserts rights through or under the Customer, consents to the jurisdiction of any state or federal court located within the Commonwealth of Massachusetts, and further waives any objection to jurisdiction and venue of any action instituted hereunder, and further agrees not to assert any defense based on lack of jurisdiction or venue, including forum non conveniens. Personal service of any summons, complaint or other process may be made by any means permitted by law. Venue of any action brought to enforce or relating to this Service Agreement shall be brought exclusively in the state or federal courts in the Commonwealth of Massachusetts.
This Service Agreement constitutes the entire understanding between the parties with reference to the subject matter hereof and supersedes all other prior written and oral communications and agreements between the parties relating to such subject matter.
This Service Agreement cannot be modified except by a writing duly executed by both parties.
Invalidity of terms
If any provision of this Service Agreement is held invalid under any applicable statute or rule, such invalidity shall not affect any other provisions of this Service Agreement, and to this end the provisions of this Service Agreement are declared to be severable.
Any delay in the exercise of any rights under this Service Agreement by a party shall not constitute a waiver thereof. Any waiver of right hereunder shall be in writing and signed by the authorized representative of the party so waiving. The waiver of a right on one occasion shall not constitute a waiver on any other occasion.
The captions in this Service Agreement are for reference only. Any conflict between caption and any section hereof shall be resolved in favor of the Section.
Customer agrees to defend, indemnify, and hold harmless Candela, its officers, directors, employees, agents and independent contractors (collectively, “Candela Indemnified Parties”) from and against any and all damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under the terms hereof and the cost of pursuing any insurance providers, incurred or asserted against any Candela Indemnified Party (collectively, “Damages”) for (a) any breach or non-fulfillment of any representation, warranty or covenant set forth herein by Customer or its personnel; (b) any negligent act or omission or willful misconduct of Customer or its personnel; (c) any bodily injury, death of any person or damage to real or tangible personal property caused by the Customer or its personnel, including the use of unauthorized parts in or service of the Equipment; (d) any failure by Customer or its personnel to comply with any applicable laws; (e) any fraud or other intentional acts by Customer; and (f) the use or operation of the Equipment, including, without limitation, any medical and/or surgical procedures performed by Customer using the Equipment unless said Damages are caused solely by the gross negligence of Candela or solely as result of a breach by Candela of the Service Agreement. For the avoidance of doubt, Purchaser accepts all liability and agrees to indemnify Candela for any damage to persons and/or property caused by the use of Equipment that has been serviced by unauthorized service personnel or uses unauthorized parts.
Regular Service Hours
(a) Dispatch and Tech Support: Weekdays, except holidays, from 8:30 a.m. to 8:00 p.m. Eastern Standard Time.
(b) Field Service Engineer: Weekdays, except holidays, from 8:30 a.m. to 5:00 p.m. Local Time.
(a) Field Service Department
(b) Telephone: 1-508-358-7400 or 1-800-733-8550
(c) Fax: 1-508-358-7905
ON-CALL Emergency Service
(a) Weeknights after 8:00 p.m. Eastern time, holidays and weekends
(b) Coverage is limited to telephone support only
(a) Field Service Department
(b) Telephone: 1-508-358-7400 or 1-800-733-8550
(c) Using a touch-tone telephone, select option #2, then option #1 and follow instructions provided