1. The Terms of Sale (“Sales Terms”) herein apply to purchased equipment (“Equipment”) and products that are utilized with the Equipment (“Products”).

PAYMENT TERMS

2. 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.

3. Shipment is FOB Destination, with the price of shipment billed to the Customer. Freight charges vary depending on shipment content and method.

4. Quoted 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 Quote. If Customer is exempt from any such amount, Customer must provide to Cadwell a valid exemption.

5. For Customers within the United States, Cadwell offers Products for purchase online at its e-store, www.estore.cadwell.com, (“Online Orders”), or for purchase from its Supplies and Accessories Catalogue. Catalogue orders may be made online, by phone, by email or by fax. International Customers must purchase Products through their local Cadwell distributor.

6. Payment for all Online Orders must be made by credit card unless Customer has called 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 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. Online Product prices do not include Taxes, fees or charges imposed by any governmental authority on the transaction between Customer and Cadwell, which will be calculated and added to the order total at checkout and paid by Customer. If Customer is exempt from any such amount, Customer must provide to Cadwell a valid exemption.

9. A minimum purchase of $25 is required for all Product orders. 10. Customer may check the status of any order by calling Cadwell during normal working hours. 11. Cadwell reserves the right to modify its Equipment or Product offering including specifications, availability, pricing and shipping charges or
method at any time.

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

11. Cadwell reserves the right to modify its Equipment or Product offering including specifications, availability, pricing and shipping charges or method at any time.

RISK OF LOSS.

12. Risk of loss shall pass to the Customer when the Equipment and Products are delivered to the Customer.

WARRANTY.

13. Cadwell warrants for a period of one (1) year for new Equipment and six (6) months for refurbished Equipment* from the date of shipment of each system against defects in material and workmanship (“Equipment Warranty”).

14. Notice of an Equipment defect and an explanation of circumstances concerning any claim that the system has proven defective in material or workmanship shall be given to Cadwell within two (2) working days of the discovery of the defect. Upon verification of defect, Cadwell will repair or replace at its option.

15. Cadwell shall be under no obligation to furnish, repair or replace any Equipment part which has been damaged, abused or misused through no fault of Cadwell, or if unauthorized attempts to modify, repair or service Equipment have impaired the performance of the Equipment. Warranty does not cover Ultrasound Probes or Cables damaged by dropping, excessive bending, or crush forces.

16. Oral statements do not constitute a warranty. Representatives of Cadwell are not authorized to make oral warranties about the merchandise described in the Quote.

17. Except as expressly set forth herein, there is no warranty, express or implied as fitness for any particular purpose.

18. When a Product is purchased as an integrated part of Equipment, the Equipment Warranty covers the Product. When a Product is purchased separately and is not an integrated part of Equipment, the manufacturer’s warranty for the Product shall apply. Customer acknowledges that the Product manufacturer may not be Cadwell.

19. Cadwell’s Equipment Warranty and any Product warranty extends only to the original Customer and is not transferable to another party.

BUSINESS USE.

20. Except as expressly provided by Cadwell in writing, all Equipment and Products 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 and Products.

21. Customer acknowledges that it is purchasing the Equipment and Products for a business use and for no other purpose.

CANCELLATION.

22. Cancellation. In the event Customer cancels the purchase after the order has shipped, Customer agrees to reimburse Cadwell for actual costs incurred, including but not limited to, charges for restocking, training and freight.

RETURNS AND REFUNDS.

23. If Customer desires to return Equipment or Products, Customer must first contact Cadwell to obtain a Return Merchandise Authorization (“RMA”) number.

24. Cadwell agrees to accept the return of Equipment and Products for a refund, excluding shipping charges, provided the following:

a. Customer obtains an RMA;

b. The order is returned to the Seller within 30 days from the date the Equipment and Product was received; and

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

25. If Customer seeks a refund for any of the following reasons, Customer shall receive a refund, including shipping charges:

a. Equipment or Product shipped in error.

b. Product was delivered after the Product’s expiration date.

c. Equipment or Product was improperly labeled or packaged by Cadwell.

d. Equipment or Product was damaged during shipment.

26. 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.

27. Returns based on a defect or malfunction of Equipment or a Product will be handled in accordance with the applicable Product warranty or Equipment Warranty.

INTELLECTUAL PROPERTY.

28. Customer acknowledges that Cadwell owns all right, title and interest in all proprietary Equipment designs and configurations, software and firmware purchased under this Agreement, except to the extent that Cadwell has granted Customer a limited license in the software, a copy of which is available at www.cadwell.com/terms.

INDEMNIFICATION.

29. Customer agrees to indemnify Cadwell and hold it harmless from any and all demands or claims of any nature whatsoever arising out of its use of the Equipment, including products liability or physical injuries to person, or property, loss of life, or other claims or damages.

EXCLUSIVE REMEDY AND LIMITATION OF DAMAGES.

30. The parties agree that the Customer’s exclusive remedy available from Cadwell shall be for the repair and/or replacement of defective parts as provided herein. Customer agrees that Cadwell shall not be liable for direct or consequential damages, including but not limited to loss of income, loss of time, lost sales, injury to person or personal property, or liability Customer had with respect to any other person.

SECURITY INTEREST.

31. If the full purchase price is not paid at the time of contracting, the Customer grants Cadwell a security interest in the Equipment described in the Quote, including all added and substituted parts, accessories, and improvements made to the Equipment, to secure the extension of credit. The Customer promises to keep the Equipment in good repair, and the Customer has no right to sell, lease, or otherwise dispose of the collateral. In the event of default, Cadwell has the right to pursue all remedies described herein and all remedies available in the Uniform Commercial Code.

DEFAULT AND REMEDY.

32. Failure to pay according to the Sales Terms is default. Cadwell may declare the total amount owed immediately due without any further notice to Customer, retake possession of the Equipment securing this sale, and/or pursue any other remedies at law or equity.

33. In the event any action shall be instituted for the failure to perform the Sales Terms herein, the prevailing party shall be entitled to recover costs, including attorney’s fees.

TIME LIMIT ON CUSTOMER COMMENCING LEGAL ACTIONS.

34. An action by Customer for breach of these Sales 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.

SEVERABILITY.

35. If any provision of these Sales Terms is held invalid or unconscionable, such invalidity or unconscionability shall not affect other provisions of the Sales Terms which can be given effect without the invalid or unconscionable provision.

NO WAIVER.

36. If Cadwell at its option agrees to a waiver of any of the 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.

CHOICE OF LAW and VENUE.

37. The Sales Terms herein shall be governed by the laws of the state of Washington. Should either party bring a claim hereunder, the parties agree that the courts in Benton County, Washington shall hold exclusive jurisdiction.

EXCLUSIVE AGREEMENT

38. The Sales Terms herein represent the exclusive agreement between the parties. To the extent the Sales Terms are in conflict with any other purchase or sales terms of the parties, the Sales Terms herein shall govern. The Sales Terms shall not be modified or amended except in writing and signed by both parties. Any purchase or sale term offered by Customer in acknowledging or otherwise accepting a purchase order shall be considered a proposal and shall not become part of this agreement unless specifically accepted in writing by Cadwell.

* Refurbished systems are subject to availability at the time of purchase order.

TERMS OF SALE – 5.16.2019



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
at www.cadwell.com/CadCare.

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.

General Provisions

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.



PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE (DEFINED BELOW) OR ANY ACCOMPANYING DOCUMENTATION (DEFINED BELOW).

THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) GOVERN YOUR USE OF THE SOFTWARE UNLESS YOU AND CADWELL LABORATORIES, INC. (“CADWELL”) HAVE EXECUTED A SEPARATE AGREEMENT.

Cadwell is willing to license the Software to you only upon the condition that you accept all the terms contained in this Agreement. If you install or use the Software or keep it for 30 days after the date of purchase, then you have indicated that you understand this Agreement and accept all of its terms. If you do not accept all the terms of this Agreement, then Cadwell is unwilling to license the Software to you.

1. Grant of License. Subject to your compliance with the terms and conditions of this Agreement, Cadwell grants you a perpetual, non-exclusive and non-transferable license to install and use the Object Code, and any Updates, on computers located at your buildings or facilities, solely for your internal business purposes- “Object Code” means the fully compiled version of the software described in the user guide(s) accompanying this Agreement (the ‘Documentation”) that can be executed by a computer and used by an end user without further compilation (such software and Documentation collectively comprising the “Software”). “Updates” means modifications made by Cadwell to the Software, that Cadwell generally makes available at no additional charge to its customers when Cadwell has determined, at Cadwell’s sole discretion, to release a periodic software update. You may make a single copy of the Software for backup purposes, provided that you reproduce on it all copyright and other proprietary notices that are on the original copy of the Software. Cadwell reserves all rights in the Software not expressly granted to you in this Agreement.

2. Restrictions. Except as expressly specified in this Agreement, you may not: (a) copy or modify the Software or (b) transfer, sublicense, lease, lend, rent or otherwise distribute the Software to any third party. You acknowledge and agree that portions of the Software, including, without limitation, the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Cadwell and its licensors. Accordingly, you agree not to disassemble, decompile or otherwise reverse engineer the Software, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition.

3. Ownership. The Software is licensed, not sold. You own the media on which the Software is recorded, but Cadwell retains ownership of the Software, including all intellectual property rights therein. The Software is protected by United States copyright law and international treaties. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Software as delivered to you.

4. Term. This Agreement remains effective until terminated. You may terminate it at any time by destroying all copies of the Software in your possession or control. This Agreement will automatically terminate without notice if you breach any term of this Agreement. Upon termination, all licenses granted hereunder will immediately terminate and you must promptly destroy all copies of the Software in your possession or control.
Software License Agreement

5. Limited Warranty. Cadwell warrants that for thirty (30) days following the date of purchase, the media on which the Software is provided will be free from defects in materials and workmanship under normal use. As your sole and exclusive remedy and Cadwell’s entire liability for any breach of this limited warranty, Cadwell will promptly replace the defective media, at no charge.

6. DISCLAIMER. THE LIMITED WARRANTY SET FORTH IN SECTION 5 IS IN LIEU OF, AND CADWELL EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES AND CONDITIONS, EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CADWELL OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. Some jurisdictions do not allow limitations on how long an implied warranty last, so the above limitation may not apply to you. All warranties implied by statute are limited to the duration of the express warranty set forth above. This warranty gives you specific legal rights, and you may also have other rights which vary by jurisdiction.

7. Limitation of Liability. CADWELL’S TOTAL LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO CADWELL BY YOU FOR THE SOFTWARE. IN NO EVENT WILL CADWELL BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT CADWELL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.

8. Confidentiality

8.1. Definition. “Confidential Information” means: (a) the Software and (b) any business or technical information of Cadwell that, if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure, or, if disclosed orally, is identified as “confidential” or “proprietary” at the time of disclosure, and is summarized in a writing sent by Cadwell to you within thirty (30) days of such disclosure.

8.2. Exclusions. Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault of or breach of this Agreement by you; (b) is rightfully known by you at the time of disclosure without an obligation of confidentiality; (c) is independently developed by you without use of the Confidential Information; or (d) you rightfully obtain from a third party without restriction on use or disclosure.

8.3. Use and Disclosure Restrictions. You will not use the Confidential Information except as necessary for the performance of this Agreement and will not disclose such Confidential Information to any third party except to those of your employees and subcontractors that need to know such Confidential Information for the purpose of performing this Agreement, provided that each such employee and subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein. You will use all reasonable efforts to maintain the confidentiality of all such Confidential Information in your possession or control, but in no event less than the efforts that you ordinarily use with respect to your own proprietary information of similar nature and importance. The foregoing obligations will not restrict you from disclosing Confidential Information: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that you give reasonable notice to Cadwell to contest such order or requirement; or (b) on a confidential basis to your legal or financial advisors.

Software License Agreement

9. Government Users. The Software and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212. Any use, duplication or disclosure of the Software or the Documentation by or on behalf of the U.S. Government is subject to restrictions as set forth in this Agreement. Manufacturer is Cadwell Laboratories, Inc.

10. Export Law. You agree to comply fully with all U.S. export laws and regulations to ensure that neither the Software nor any technical data related thereto, nor any direct product thereof, are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.

11. General. This Agreement will be governed by and construed in accordance with the laws of the State of Washington, without regard to or application of conflicts of law rules or principles. The United Nations Convention on Contracts for the international Sale of Goods will not apply. You may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without Cadwell’s prior written consent, and any attempt by you to do so, without such consent, will be void and of no effect. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All notices or approvals will be sent to the addresses set forth in the applicable ordering document or invoice or to such other address as may be specified by either party to the other in accordance with this section. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible and the other provisions will remain in full force and effect. This Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter. Any terms or conditions contained in your purchase order or other ordering document that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby rejected by Cadwell and will be deemed null and of no effect. The headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.

12. Contact Information. If you have any questions regarding this Agreement, you may contact Cadwell at (800) 245-3001.