These Terms and Conditions govern the Equipment listed in the Service Agreement (“Agreement”) between the customer (“Customer”) and Candela Corporation (Candela).
(a) “Equipment” shall mean all systems purchased from Candela by Customer identified in the Agreement.
(b) “Contract Period” shall mean the period of coverage for the applicable Services as set forth for Equipment in the Agreement.
(c) “Consumables” shall mean disposable materials and other Equipment which may be used in conjunction with Hardware.
(d) “Hardware” means the equipment, system, or other instruments provided and/or manufactured by Candela and all console firmware or software embedded therein.
(e) “Service Request” shall mean a customer-initiated request for assistance to Candela technical support using established methods of communication including email, phone, or web-based notification (where applicable).
(f) “Service Package” shall mean the complete service offering set forth in the Agreement. Service Packages may be subject to change or customization, at Candela’s sole discretion.
(g) “User Maintenance” shall mean and include all standard and routine operator maintenance required to be performed by Customer as set forth in the applicable Candela user manual provided with or made available for the Equipment.
(h) “Reinstatement Fee” shall mean a fee that will be applied by Candela to Customer if necessary to bring the equipment to Candela standards if the Equipment is not maintained according to Candela standards.
(i) “Preventative Maintenance” means the scheduled standard maintenance inspections to be provided for Equipment.
(j) “Hardware Upgrades” shall mean an enhancement to improve Equipment performance, safety, or functionality that may be subject to additional fees.
(k) “Software Updates” shall mean bug fixes, patches, and minor enhancements to the Software currently licensed to Customer that are provided to Customer at no charge during the Contract Period.
Candela will provide Services Monday through Friday (Israel Sunday-Thursday), excluding Candela observed holidays, during normal working hours of 9:00am to 5:00pm local time or other as specified in the Agreement. Time may vary slightly between countries and is also subject to the availability of personnel. After-hours support is available upon request at an additional charge. Customer acknowledges that the Equipment may not be available for use during Preventative Maintenance and service visits. Preventative Maintenance will be scheduled upon request by Customer. While every effort will be made to render Services promptly, Candela will make best efforts regarding specific response times to a Service Request, or Equipment up-time minimums (where available) all of which may be available for purchase under separate contract or service.
Services which are not otherwise included in a specific Service Package as specified in the Agreement are available for purchase under separate contract.
The rights granted to the Customer herein are limited solely to the Customer named in the Agreement and apply only to Equipment that has been continuously covered by a Candela Service Agreement from the date of original purchase. In the event that Customer desires coverage for equipment or Equipment for which coverage has not been continuously maintained, the Customer agrees that this Agreement shall be effective only after Candela has determined that the Equipment is suitable for coverage under this Agreement and Customer agrees to pay Candela’s Reinstatement Fee. This Agreement is not transferable or assignable by the Customer. In the event that there has been a gap of Candela service coverage for any Equipment for a period greater than thirty (30) days, such Equipment may be subject to inspection, certification, and up-front Preventative Maintenance, at Customer’s expense, to ensure that such Equipment meets Candela’s standards for maintenance and support. Candela, at its sole discretion, shall determine Equipment eligibility for service.
During the Contract Period, Customer shall:
(a) Ensure that the Equipment is always operated only by users who have received Equipment training in accordance with the applicable Candela User Manual.
(b) Perform all required User Maintenance and schedule annual Preventative Maintenance visits with Candela.
(c) Notify Candela immediately through Candela’s established methods of communication of any Equipment malfunction and provide a full description of the issue.
(d) Provide Candela with notice of its intent to move Equipment.
(e) Provide location & time availability.
(f) Grant Candela remote access to provide remote support (when available).
Prior to Candela performing any Services, Customer shall use its best efforts to:
(a) Provide Candela full and free access to the Equipment requiring Services at the time(s) scheduled.
(b) Promptly notify Candela of any hazardous or dangerous environments and instruct and assist Candela in preventing exposure.
(c) Ensure that any third-party auxiliary equipment which is affixed to or positioned near the Equipment is removed or adequately protected.
(d) Implement safeguards to protect all programming, programs, data and other removable storage media. Candela shall not be responsible for any accidental damage in the event Customer fails to remove or protect such auxiliary equipment.
(e) Ensure an authorized Customer representative is available to sign Candela applicable documentation upon Services completion.
(a) Fees. All Service fees, as set forth on the Agreement, shall remain firm for the duration of the Contract Period. Fees shall be invoiced for additional Services as required.
(b) Payment. Payment is due net thirty (30) days from Customer’s receipt of invoice. Unless otherwise noted, the Price for Services listed in the Agreement specifically excludes items listed under Section 11, Exclusions.
(c) If Customer fails to make any payments when due or otherwise fails to comply with these payment terms, Candela shall be entitled to (i) suspension of all Services not fully paid for by Customer; (ii) reimbursement of any out-of-pocket expenses incurred by Candela in collecting any payments due, including any attorneys’ fees and collections fees; (iii) Customer forfeits any Price discounts given by Candela toward this Agreement for any Equipment; (iv) Candela may terminate this agreement at Candela’s option. If applicable, Customer shall pay Candela the sum of Fifty Dollars ($50.00) per check for any check returned for non-sufficient funds. Additionally, Candela may charge one and one-half percent (1.5%) or the highest rate allowed by law, whichever is lower, on overdue accounts. Service coverage under this Agreement or any Addendum 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. Although service will not be available during any period of non-payment, the Agreement period will continue to run during such time.
(d) Taxes. All Service fees are exclusive of any applicable, sales tax, goods and services taxes, value added tax, or any similar taxes or other charges. Customer is responsible for all taxes, duties, fees and expenses imposed by federal, state or local governmental entities, applicable to the Services furnished hereunder or in lieu thereof, Customer shall provide Candela with a tax exemption certificate acceptable to and considered valid by the applicable taxing authorities.
(e) Renewal: At the end of the agreed term, the contract shall be automatically extended for successive annual periods, unless either party denounces it in writing at least three (3) months before the initial expiration date or any of its extensions. For each extension of the contract, the initially agreed annual price will be increased, on the date of each anniversary of the contract, in accordance with the CPI General Index (National Set) published by the National Institute of Statistics or the body acting in its stead. The price thus obtained shall be the basis on which successive increases shall be applied.
(a) For Material Breach. Termination of this Agreement by either party will be permitted in the event of a Material Breach that, if possible, to cure, remains uncured sixty (60) days after written notice by the non-breaching party to the alleged breaching party. A “Material Breach” is defined as (a) the failure of a party to fully comply with its obligations under this Agreement; (b) the making of assignment for the benefit of creditors by a party; (c) the institution of bankruptcy, reorganization, liquidation, or receivership proceedings by or against a party; and (d) insolvency of a party.
(b) Beyond Repair. In the event that Candela determines that the cost to repair Equipment exceeds its fair market value, Candela has the sole right to terminate this Agreement. In such instance, Candela may refund the remaining pro-rated amount of the fees already paid by Customer during the applicable Contract Period.
(c) Relocation: if the Equipment was relocated/moved from its original location without Candela approval.
(d) Candela restricts Equipment access to Candela and its authorized representatives. The contract shall be terminated if anyone other than Candela personnel service the Equipment, non-certified parts were used, or Equipment software was modified in any way. Customer agrees that no customer service person, third party service person, or other personnel, not authorized by Candela in this Agreement, shall be allowed to perform any service, repair or maintenance on the Equipment, during the term of this Agreement. A breach of the terms of this section shall be considered a breach of this Agreement and shall be cause for termination of this Agreement solely at Candela’s option. Fees will apply for access to Equipment and to requests for Candela service after voiding, termination or expiration of warranty or Agreement.
Candela represents and warrants that the Services provided under this Agreement will be performed in a workmanlike and professional manner with reasonable skill, care and diligence, all in accordance with standard industry practices and in compliance with all applicable laws. All Services shall be provided by an authorized Candela representative subject to the fees set forth under the Agreement. Services, including repair parts, shall be warranted for a period of thirty (30) days or the balance of the Contract Period, whichever is longer. Customer’s sole remedy for breach of warranty shall be a re-performance of the Services. Candela does not warrant that the Services will render Equipment to be error-free or that continued use and operation of the Equipment will be uninterrupted. The foregoing warranties are exclusive and in lieu of all other warranties, whether written, oral, express, implied, or statutory. NO IMPLIED STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY.
Service support shall not apply to any defect or performance deficiency on Equipment (including failure to conform to Equipment descriptions or specifications) or damage thereto which results, in whole or in part, from: (1) neglect, abuse, misapplication, accident, improper storage or handling of the Equipment by Customer, its employees, agents, or contractors; (2) failure of Customer to prepare or maintain the site or provide power requirements or operating environmental conditions in compliance with any applicable instructions or recommendations of Candela; (3) adverse power conditions or environmental conditions such as erratic power, voltage spikes, RF or magnetic interference, HVAC failure or sprinkler system failure, lightning, static electricity, fire, storm, vandalism, water damage, or other casualty beyond the control of Candela or its representatives, force majeure (see Section 17), of damages ordinarily covered by insurance; (4) absence of any Equipment, component, or accessory recommended by Candela but omitted or removed at Customer’s direction; (5) any misuse, alteration or damage to the Equipment by persons other than Candela authorized in writing by CANDELA; (6) the combination, operation, or use of Equipment with hardware, software, and/or consumables not supplied or authorized in writing by Candela; (7) improper or extraordinary use of the Equipment, improper maintenance of the Equipment, failure to maintain the Equipment or failure to comply with any applicable instructions or user manuals provided by Candela; (8) any servicing performed, repairs attempted, or Equipment relocation outside of designated address of the address within the purchase agreement, by personnel not authorized in writing by Candela; (9) any modification, alteration, or variation to Equipment to comply with the requirements or regulations of any governmental body or agency; (10) any change to operating system software (“OS”) including the third-party original equipment manufacturers’ discontinuance of support of the OS (i.e., Microsoft). Customer is responsible for expenses associated with changes to the OS, including software licensing fees, Hardware modifications and/or additional Hardware costs and technical support fees associated with implementing a superseding OS. In the event that Customer elects to continue using an unsupported OS, Customer shall do so at its own risk and expense, and Candela shall have no obligation to support Equipment failures proximately resulting from the unsupported OS; (11) consumable and accessories to complete repairs are Customer’s responsibility. All references above are collectively and individually “Warranty Exclusions”. The occurrence of any Warranty Exclusion voids this Service Agreement.
Candela, at its sole discretion, may issue, routinely without schedule or commitment, Software Updates, Software Upgrades and Hardware Upgrades. Certain Software Upgrades and Hardware Upgrades may require Customer to purchase additional equipment or hardware.
Candela, at its sole discretion, will determine if replacement parts are required and reserves the right to use refurbished material or parts for repairs of Equipment under the Agreement. Warranty of refurbished parts is not limited compared to new parts. Labor to install any replacement parts is included as part of the Service Package or otherwise as specified in the Agreement. All parts which become subject to removal and replacement shall become the property of Candela. Consumables and Reagents are not eligible for replacement under this Agreement.
THIS AGREEMENT IS THE EXCLUSIVE REMEDY AGAINST CANDELA AND NO OTHER REMEDY SHALL BE AVAILABLE. THIS AGREEMENT IS IN LIEU OF ANY OTHER 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 AGREEMENT ARE UNAUTHORIZED AND SHALL NOT BE BINDING UPON CANDELA. THIS AGREEMENT DOES NOT EXTEND TO ANY MACHINERY, APPLIANCES OR PROPERTY OF THE CUSTOMER USED IN CONJUNCTION WITH OR CONNECTED TO THE EQUIPMENT. PLEASE 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. EXCEPT AS OTHERWISE REQUIRED BY LAW, IN NO EVENT WILL CANDELA BE LIABLE TO CUSTOMER OR ANY LOST REVENUES, LOST PROFITS, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ECONOMIC LOSS, DOWNTIME OR UNAVAILABILITY OF EQUIPMENT AS A RESULT OF A MALFUNCTION, MAINTENANCE OR REPAIR, OR PROPERTY DAMAGE INCURRED BY THE OTHER PARTY, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF CANDELA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT OF LIABILITY, CANDELA’S MAXIMUM LIABILITY HEREUNDER WILL NOT EXCEED THE PRICE OF THE GOODS OR SERVICES FURNISHED BY CANDELA GIVING RISE TO THE CLAIM. Candela’s rights and remedies in these terms are in addition to, and not in lieu of, any other rights or remedies Candela may have at law or in equity.
Without limiting its remedies under existing law, Candela may, in the event of a Material Breach by Customer, and in its sole discretion, pursue any or all of the following remedies: (a) suspend or cancel its performance hereunder, including any pending Services; (b) declare all unpaid balances, payments and expenses due or to become due hereunder immediately due and owing (c) terminate the Agreement without additional liability or obligation to Customer; (d) seek any other cumulative remedies at law or in equity or (e) exercise any all rights and remedies available to a secured creditor under the Uniform Commercial Code. The foregoing remedies are cumulative, and may be exercised by Candela, in whole or in part, at Candela's sole discretion. The substantially prevailing party shall be entitled to its attorneys’ fees, costs, and expenses (including expert expenses) in connection with any claims, causes of action or litigation.
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.
In the event that any one or more provisions contained herein (other than the provisions obligating Customer to pay Candela for the Services) shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
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.
Any notice or communication required or permitted hereunder shall be in writing and shall be deemed received three (3) days after being sent via registered mail with return receipt requested, by overnight mail, by courier, by first-class mail, postage prepaid, or via email (with evidence of receipt required) at the addresses specified herein for the respective parties or at such other address as either party may from time to time designate to the other in writing.
Customer may not assign any of its rights or obligations under the 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 the Agreement and Customer shall on request execute such documents recording Candela’s transfer of such obligations. Any other assignment of the Agreement without the express written consent of Candela will be invalid.
Candela is performing the Services as an independent contractor and not as an employee of Customer and none of Candela’s personnel shall be entitled to receive any compensation, benefits or other incidents of employment from Customer. Nothing in the Agreement shall be deemed to constitute a partnership or joint venture between Customer and Candela, nor shall anything in the Agreement be deemed to constitute Candela or Customer the agent of the other. Neither Candela nor Customer shall be or become liable or bound by any representation, act or omission whatsoever of the other.
The Agreement, and any material transmitted therewith may contain information confidential or proprietary to either party, its subsidiaries or affiliates (“Confidential Information”) and such information is not to be used by the receiving party other than the purpose for which it was transmitted by the disclosing party. Each party shall (i) hold such information in strictest confidence and not disclose such information to third parties without prior, written consent of the disclosing party and (ii) not collect, access, retain use or share the Confidential Information other than for performance of the Services under the Agreement.
The Agreement constitutes the entire understanding between the parties with reference to the subject matter thereof and supersedes all other prior written and oral communications and agreements between the parties relating to such subject matter.
The Agreement cannot be modified except by a writing duly executed by both parties.
If any provision of the Agreement is held invalid under any applicable statute or rule, such invalidity shall not affect any other provisions of the Agreement, and to this end the provisions of the Agreement are declared to be severable.
Any delay in the exercise of any rights under the Agreement by a party shall not constitute a waiver thereof. Any waiver of right thereunder 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 the Agreement are for reference only. Any conflict between caption and any section thereof 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 Agreement. For the avoidance of doubt, Customer 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.