Version 2019 (01.01.2014 - 06.30.2019)
This Schedule contains terms and conditions applicable to the hardware services (the “Hardware Services,” which shall be a “Service” as defined in the Terms, defined below) provided by CareServ Technologies, LLC (“CareServ”) for use by the person or entity listed in an Order as the “Customer,” which services are provided as a “Service” as described in the CareServ Technologies, LLC Service Agreement Terms of Service (the “Terms”). This Schedule contains terms that are in addition to, and not in lieu of, the Terms, the AUP and all Orders executed between the parties. Capitalized terms used but not otherwise defined herein shall have the same meanings given for such terms in the Terms.
During the term of any Order for Hardware Services, and subject to any limitations set forth therein, CareServ agrees to license to Customer, at Customer’s designated facility(-ies) such hardware or other equipment as may be designated in such Order as “Licensed Equipment.” All Licensed Equipment shall be delivered, installed and maintained by CareServ, subject to Customer’s maintenance responsibilities described in Section 2(b), below. Title to the Licensed Equipment shall remain with CareServ or its suppliers. Customer shall have no right or interest in or to the Licensed Equipment except as expressly provided in this Agreement and shall possess the Licensed Equipment subject and subordinate to the rights of CareServ. Customer will, at its own expense, keep the Licensed Equipment free and clear from any liens or encumbrances of any kind (except any caused by CareServ) and will indemnify and hold CareServ harmless from and against any loss or expense caused by Customer’s failure to do so. Customer shall give CareServ immediate written notice of any attachment or process affecting the Licensed Equipment or title thereof.
Customer Responsibilities
- Customer will be responsible for preparing its site for installation, for providing adequate space, foundations, heating and cooling, and electrical power, and for affording CareServ or its agent reasonable access to the premises for installation and maintenance. Except as provided in an Order, Customer is responsible for any special interface equipment or facilities necessary to ensure compatibility between the Licensed Equipment and Customer Equipment.
- Customer shall have the right to use the Licensed Equipment in a commercially reasonable manner in connection with the other Services provided by CareServ to Customer for the term set forth in the applicable Order. Customer shall not remove, alter or destroy in any way any Licensed Equipment, or any label thereon, without the prior written consent of CareServ. Customer may not affix or install any accessory, addition, upgrade, equipment or device on to the Licensed Equipment (other than electronic data) unless expressly approved in writing by CareServ. Customer will, at its own expense, keep the Licensed Equipment in good repair, appearance and condition, subject to normal wear and tear. Customer will be liable for the costs of repair or replacement of Licensed Equipment if damaged or lost due to theft, negligence, intentional acts, unauthorized acts or other causes within the reasonable control of Customer, its agents or employees.
- Within fifteen (15) days of the effective date of termination or expiration of the Agreement between the parties or any applicable Order, or both, Customer will remove, package and ship, at Customer’s expense and in a commercially reasonable manner, all Licensed Equipment to CareServ. If Customer fails to do so, CareServ will have the right to: (i) charge Customer, and Customer will pay, the fair market value of the Licensed Equipment; and (ii) recover and take possession of such Licensed Equipment, and for this purpose may enter any premises of Customer where such equipment is located during normal working hours to remove such Licensed Equipment, without being liable for trespass. Customer will promptly surrender the Licensed Equipment to CareServ in as good order and condition as originally delivered, normal wear and tear excepted.
During the term of any Order for the Hardware Services, Customer agrees to keep in full force and effect: (i) comprehensive general liability insurance in an amount not less than $1 million per occurrence for bodily injury and property damage and $2,000,000 aggregate (or equivalent coverage under an “umbrella” policy), including comprehensive form premises and operations, independent contractors, products and completed operations, personal injury, contractual, and broad form property damage liability coverage; (ii) workers compensation insurance in an amount not less than that required by applicable law; and (iii) property and casualty insurance (all risks) covering the Customer location at which the Licensed Equipment is located. Customer agrees that it will be solely responsible for ensuring that its agents (including contractors and subcontractors) obtain and maintain the same types and amount of coverages as required of Customer herein. All such policies shall be written by licensed insurance carriers rated A+ or better by A.M. Best. Prior to installation of any Licensed Equipment at the Customer location, Customer will deliver to CareServ certificates of insurance that evidence the insurance set forth above and cause its insurance provider(s) to name CareServ as an additional insured and notify CareServ in writing of the effective date thereof. Upon request, Customer shall give CareServ at least thirty (30) days prior written notice of any termination, expiration or change in the coverages provided thereunder. Customer will cause each insurance policy of Customer required under this Agreement to provide that the underwriters waive all claims and rights of recovery by subrogation against CareServ’ in connection with any liability or damage covered by the insurance policies.
- Customer acknowledges that the Licensed Equipment is manufactured by third parties and that, in addition to the terms in the Agreement, use and possession of the Licensed Equipment by Customer shall be subject to and controlled by the terms of any manufacturer’s or, if appropriate, supplier’s warranty. CareServ agrees to use commercially reasonable efforts to enforce all warranties made by any manufacturer or supplier with respect to the Licensed Equipment. In the event of any mechanical or service failure of the Licensed Equipment that cannot be resolved within thirty (30) days after Customer has notified CareServ (via CareServ’s customer support system), CareServ may, at its sole election, either (i) replace the Licensed Equipment; or (ii) terminate this Schedule and the Hardware Services described herein immediately upon written notice to Customer, in which case CareServ will refund to Customer any pre-paid and unused subscription fees with respect to the Hardware Services that relate to the period after the date of notice of such failure. CUSTOMER’S SOLE REMEDY, AND CARESERV’S ENTIRE LIABILITY, FOR ANY MECHANICAL OR SERVICE FAILURE WITH RESPECT TO THE LICENSED EQUIPMENT ARE THE REMEDIES OF REPLACEMENT, TERMINATION AND REFUND SET FORTH IN THIS SECTION 4(A).
- EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE TERMS AND CARESERV’S OBLIGATIONS UNDER SECTION 4(A) OF THIS SCHEDULE, THE LICENSED EQUIPMENT IS PROVIDED EXCLUSIVELY ON AN “AS IS” BASIS, AND CARESERV AND ITS SUPPLIERS DISCLAIM ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES WITH RESPECT TO THE LICENSED EQUIPEMNT, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE.
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