Terms and Conditions for the Sale of Products.
As of August 1 st , 2024.
On this page you will find the terms and conditions governing purchase of products and/or services by you or your company from GX Molecular, Inc. (doing business as “CS Genetics”) (“Seller”). THESE TERMS & CONDITIONS GOVERN YOUR USE OF THE PRODUCTS AND SERVICES (AS DEFINED BELOW), RECEIVED FROM Seller. IT IS IMPORTANT THAT YOU READ CAREFULLY AND UNDERSTAND THESE TERMS AND CONDITIONS. BY ACCEPTING A QUOTE BY EMAIL, BY ISSUING A PURCHASE ORDER, OR OTHERWISE ACCEPTING DELIVERY OR USING THE PRODUCTS, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. PLEASE READ THE BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER IN THE ARBITRATION TERMS BELOW. IT AFFECTS HOW DISPUTES RELATING TO THESE TERMS & CONDITIONS ARE RESOLVED. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, YOU MAY NOT USE OR ACCESS THE PRODUCTS.
A. DEFINITIONS
For purposes of these Terms and Conditions, capitalized terms not otherwise defined in these Terms and Conditions shall have the meanings set forth in this Article A.
1. “Affiliate” means (a) an organization, which directly or indirectly controls a Party to these Terms and Conditions; (b) an organization, which is directly or indirectly controlled by a Party to these Terms and Conditions; or (c) an organization, which is controlled, directly or indirectly, by the ultimate parent company of a Party. “Control” as per (a) to (c) is defined as owning more than fifty percent of the voting stock of a company or having otherwise the power to govern the financial and the operating policies or to appoint the management of an organization.
2. “Agreement” means the Quote, including all schedules and exhibits between Seller and Buyer, together with these
Terms and Conditions.
3. “Buyer” means the buyer to which Seller is selling its Products as named in the Quote.
4. “Calendar Year” means for any given year the period beginning on January 1 and ending on December 31.
5. “Confidential Information” means any and all of the following information of CSGX (and/or its Affiliates) or Buyer (and/or its Affiliates) (each, a “Disclosing Party”) that may be hereafter disclosed by or on behalf of a Disclosing Party in any form, whether in writing, orally, electronically or otherwise, or otherwise made available by observation, inspection or otherwise by such Disclosing Party to the other Party (the “Receiving Party”) including: (a) all information that is a trade secret under applicable trade secret law or other legal principles; (b) all information concerning product specifications, formulations, and other specific and proprietary product information, including pricing; and (c) all information concerning the business and affairs of the Disclosing Party that is marked as confidential, or a reasonable person would consider to be confidential.
6. “Consumables” means Seller-branded reagents and consumable items.
7. “Seller” means the CS Genetics entity identified as Seller in a Quote.
8. “Documentation” means Seller’s user manual, package insert, and similar technical documentation, for the Product in effect on the date that the Product ships from Seller. Documentation may be provided with the Product at time of shipment or provided electronically from Seller.
9.”Improvement” means all Intellectual Property Rights in any improvement, enhancement, modification or derivative of, or to, a Product.
10.”Intellectual Property Rights” means any and all intellectual property and proprietary rights wherever in the world arising, whether registered or unregistered (and including any application for such rights), including copyright, rights in inventions, patents, petty patents, know-how, domain names, trade secrets, trademarks and trade names, service marks, design rights, rights in get-up, moral rights, database rights and rights in data, rights of publicity, rights to sue for passing off, semiconductor chip, topography rights, utility models, business names and domain names, contract rights and any other legal rights protecting data, information or intangible property throughout the world.
11. “Party” or “Parties” means Seller and Buyer, which are collectively referred to as “Parties” and each individually as a “Party.”
12. “Product(s)” means the Seller-branded products detailed in the Quote (or any part of them, including methods or workflows associated with their use) offered for sale by Seller at any time. Products may be Consumables or Software.
13. “Purchase Order” means the firm, written orders (whether verbal, hard copy or electronic form) for the purchase,manufacturing and/or delivery of the Product(s) submitted by Buyer to Seller.
14. “Quote” means a written quote (whether hard copy or electronic form) for the sale of Products provided by Seller to a Buyer issued in response to an enquiry.
15. “Software” means Seller-branded software available for sale detailed in a Quote to these Terms and Conditions, in object code form.
16. “Specifications” means the Seller description of the characteristics of a certain Product as set forth in a published Product Data Sheet document.
B. GENERAL TERMS AND CONDITIONS
1. SCOPE OF SALES AGREEMENT AND APPLICATION TO QUOTES. The terms and conditions contained in these Terms and Conditions shall govern each purchase of Products entered into by the Parties.
2. PURCHASE ORDERS AND SHIPMENTS. Once a Purchase Order has been issued to Seller, Seller will review each such Purchase Order, and each Purchase Order, once approved (in Seller’s sole discretion), shall constitute a binding obligation upon Buyer and Seller. Seller will ship the Products specified to the facility specified by Buyer in the applicable Quote) (the “Designated Facility”). Shipment dates shall be subject to standard lead times as set forth in these Terms and Conditions. Buyer is responsible for insurance on and damage to the Products immediately upon delivery to Buyer’s Designated Facility. All freight, shipping, processing and special delivery charges shall be included on Seller’s invoices to Buyer, and Buyer agrees to pay the same.
3. PRICING AND PAYMENT.
(a) The price for each Product is set forth in the applicable Quote. Seller shall be entitled to increase the price for Products at any time prior to delivery to take account of increases in costs including (but not limited to): labor, overheads, transport, any factor beyond Seller’s control (including foreign exchange fluctuations, increases in taxes and duties), any request by the Buyer to change the delivery date or quantities of Products and any delay caused by any instructions of the Buyer or failure of the Buyer to give Seller adequate or accurate information or instructions. Where Seller increases the price under this Section 3(a), it will promptly notify the Buyer in writing. Price decreases may be considered with increased minimum order quantities as agreed by the parties in the Agreement.
(b) Product prices are exclusive of the cost of delivery, all sales, use, excise, withholding and all other taxes, which will be calculated based on both the tax rates in effect on the date of shipment and the Shipping Address for the Product. In addition, all prices and other amounts payable to Seller are exclusive of and are payable without deduction for any insurance, customs duties, tariffs, charges and expenses claimed or imposed by any governmental authority upon the sale of Product, all of which shall, unless otherwise specified in the Quote, be paid by the Buyer. In the event Seller is required by law or regulation to pay any such tax, duty or charge, such amount will be added to the purchase price or subsequently invoiced to the Buyer.
(c) Buyer shall make payment for Products (including all additional costs) in full not later than the Payment Date set forth in the Quote or, if no payment date is stated, within 30 days from the invoice day. Seller will invoice each for the Products, or each instalment of the Products, as and when the Products are dispatched by Seller. If payment is made by wire or other electronic funds transfer, Buyer is solely responsible for any bank or other fees charged and will reimburse Seller for any such fees.
(d) If the Buyer fails to make any payment to Seller when due, then in addition to any rights and remedies available under these Terms and Conditions or at law:
(i) Seller shall have the right to withhold delivery of any undelivered Products and stop any Products in transit;
(ii) all sums unpaid in respect of Products supplied under the Agreement shall become immediately due and payable; and
(iii) Any amounts not paid when due will accrue interest at the rate of 1.5% per month, calculated daily and compounded monthly, or the maximum amount allowed by law, if lower, calculated from the date when payment of the invoice becomes due for payment up to and including the date of actual payment, whether before or after judgment. Buyer shall pay for all costs (including reasonable attorneys’ fees) incurred by Seller in connection with the collection of late payments.
(e) Each purchase order is a separate, independent transaction, and all amounts due under this agreement from Buyer to Seller must be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). Seller may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by Seller to the Buyer.
4. PRODUCT QUALITY.
(a) After delivery of a shipment of Products, it shall be the responsibility of the Buyer to check Products for quantity and visible defects following delivery promptly. Buyer shall have 3 working days of the date of delivery to determine whether the Products have been damaged in transit or fail to meet the quantities of Products ordered by written notice to Seller.
(b) If the Buyer fails to give notice under Section 4(a), but without prejudice to Section 6 (Warranties), the Products delivered will be deemed to be in all respects in accordance with the Agreement and the Buyer shall be bound to accept and pay for the Products, and all claims in respect of obvious defect or non-compliance with the Agreement will be excluded.
(c) If the Buyer has a valid claim for any defect, loss, damage or non-compliance with Section 4(a), Seller’s only obligations in respect of such defect, loss, damage or non-compliance shall be to:
(i) make good any shortage or non-delivery; and/or
(ii) at its option replace the affected Products or refund the price of the affected
Products to the Buyer.
5. FAILURE TO SUPPLY. In the event either Party anticipates that a disruption, shortfall, or cessation in supply of Product by Seller is likely to occur for any reason, such Party shall promptly notify the other Party, and the Parties shall discuss in
good faith appropriate steps to alleviate such a shortfall. If Seller fails, for any reason, to deliver at least seventy-five percent (75%) of the Product ordered by Buyer on the agreed upon delivery date at Buyer’s designated facility and fails to
cure such failure within thirty (30) days (a “Failure to Supply”), Buyer shall have the right to cancel all or any part of the corresponding Purchase Order.
6. WARRANTY. Any and all warranties which may be provided with respect to any particular Product are detailed in the applicable Product packaging/labeling instructions for use. Failure to read and explicitly follow all of the provided labelling/instructions for use may result in damage to the Product(s), injury to persons, including to users or others, and damage to other property, and will void any warranty applicable to the product(s). Further, all warranties shall be voided
upon any reformulation, chemical or other alteration or any other improper use not supported by instructions for use or storage of a Product by Buyer or its Affiliates or representatives. Any warranty provided with respect to any Product will begin on the manufacture date of Product. BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT Seller MAKES NO OTHER REPRESENTATIONS GUARANTEES OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, GUARANTEES OR WARRANTIES AS TO THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF PRODUCTS. Each Party further warrants that it will comply with all applicable laws and regulations with respect to its duties and obligations under these Terms and Conditions.
7. SELLER INTELLECTUAL PROPERTY.
(a) All Products (excluding any third-party products) are covered by one or more Intellectual Property Rights owned or licensed by Seller (“Seller IPR”). Unless expressly set out in the Agreement, Seller (or its licensors) retain all rights in Seller IPR and any other Intellectual Property Rights in the Products, and in any Improvements made by the Buyer.
(b) Under the Agreement the Buyer is granted a limited non-exclusive, non sublicensable, non-transferable, and non-assignable license under the Seller IPR to use the Products solely for internal purposes (the "License"). Any use of any Product [or Improvement] not expressly permitted by the License (including, but not limited to, commercial sale, use in commercial services, or clinical use) is an unauthorized use and is strictly prohibited without prior written consent of Seller.
(c) The use of the Products in certain applications may require licenses of additional rights from third parties. In all cases, the Buyer should carry out appropriate due diligence and freedom-to-operate searches, as Seller does not accept any liability under the Agreement for infringement by a Buyer of any third-party rights. Buyer is responsible for determining whether Buyer holds all rights required for their intended use of the Products.
8. PRODUCTS FOR RESEARCH USE ONLY. Buyer acknowledges that the Products are sold and intended for research use only. Products are not intended for any prognostic, therapeutic, diagnostic, or clinical use, and do not have the approval or clearance of the U.S. Food and Drug Administration and/or any other applicable regulatory authority, clearance or registration for any specific intended use, whether research, commercial, diagnostic or otherwise. Buyer acknowledgment in the previous sentences recognizes the regulatory requirements of Seller, but it is not intended to limit the rights and obligations of Buyer under the Clinical Laboratory Improvement Amendments (CLIA) of 1988 and its subsequent amendments, as well as any other state and local requirements. Notwithstanding the foregoing, Buyer is solely responsible for obtaining all requisite regulatory approvals and clearances and any other approvals, consents or other authorizations necessary for using such Products for any diagnostics purposes.
9. RIGHTS TO PRODUCTS ON PURCHASE; PRODUCT RESTRICTIONS. The conditions and restrictions found in these terms and conditions are bargained for conditions of sale and therefore control the sale of and use of the Products by Buyer. Buyer agrees as follows:
(a) Authorized Uses of Products. Buyer agrees: (i) to only use the Product in accordance with the Product’s Documentation and Specifications and not to, nor authorize any third party to, use the Products otherwise, (ii) to use each Consumable only one time; and (iii) not to undertake any deformulation or reverse engineering of any Consumable’s formulation. The limitations in (ii) does not apply if the Documentation or Specifications for the Product expressly state otherwise.
(b) Software License Restrictions. Buyer agrees to not sell, rent, lease, loan, transfer or assign or otherwise dispose of any hardware or component thereof containing Software to any third party unless Buyer first erases or removes the Software. Buyer acknowledges that certain Software may be subject to additional terms and conditions. Buyer may not use, copy, modify, create derivative works of, reverse engineer, decompile, disassemble, distribute, sell, assign, pledge, sublicense, lease, loan, rent, timeshare or otherwise transfer the Software, nor permit any other party to do any of the foregoing. Buyer may not remove from the Software, or alter, any of the trademarks, trade names, logos, patent or copyright notices or markings, or add any other notices or markings to the Software. Buyer may not (and may not attempt to) defeat, avoid, by-pass, remove, deactivate or otherwise circumvent any protection mechanisms in the Software including without limitation any such mechanism used to restrict or control the functionality of the Software.
(c) Third Party Code. Buyer acknowledges that certain Software may be subject to additional terms and conditions. To the extent third party code is included in Software and any term or condition of a third-party license applicable to such third party code directly conflicts with the terms and conditions set forth herein, the applicable term(s) or condition(s) of that third party license will be applicable only to that third party code and only to the extent necessary to remove the conflict.
(d) No onward sales by the Buyer. No other use is authorized, and Buyer shall re-package, nor make or have made the Products, or resell components of the Products as a stand-alone product nor use the Products to provide services to any third party (including any Affiliate of the Buyer).
10. DEFAULT. A Party is in default under these Terms and Conditions if: (a) such Party does not perform any of its obligations under the Agreement and this failure continues for 15 days after written notification of such failure; (b) such Party notifies the other Party that it does not intend to perform its obligations under the Agreement; or (c) Buyer or any Buyer Affiliate offers Products for resale other than as allowed by this agreement.
11. REMEDIES
(a) Default by Seller. In the event of a default by Seller, Buyer may (i) terminate these Terms and Conditions, with Seller remaining liable for all obligations which have not yet been met under the Agreement or any Quote, and (ii) exercise any and all other remedies available at law or in equity. Buyer agrees that it will remain obligated to pay all sums owed to Seller prior to the date of termination and for any deliveries/fulfillment of obligations after the date of termination.
(b) Default by Buyer. In the event of a default by Buyer, Seller may (i) terminate the Agreement and all Quotes, and collect all amounts owing or that become due under the Agreement and Quotes, including a late payment charge of 1.5% per month or the highest rate permitted by law, whichever is less; (ii) if Products purchased during the then-current period are subject to tiered pricing based on Buyer’s purchase volumes, retroactively bill Buyer for Products to reflect actual Buyer purchase volumes during such period; (iii) require Buyer to pay immediately the greater of (1) the difference between the applicable Annual Commitment and the amount of Products actually purchased by Buyer and invoiced by Seller during such period, or (2) the difference between the amount of Products subject to binding forecasts and the amount of Products actually purchased by Buyer and invoiced by Seller during such period, if any; and (iv) exercise any and all other remedies available at law or in equity.
(c) Cumulative Rights. All of the remedies available are cumulative and may be exercised in any order.
(d) Other Expenses. The defaulting Party agrees to reimburse the non-defaulting Party for all costs, expenses and damages, including reasonable attorney’s fees and all other expenses of collection incurred by the non-defaulting Party.
12. INDEMNITY / LIMITATION OF LIABILITY.
(a) By Seller. Seller will indemnify, defend and save Buyer, its officers, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys’ fees) (“Indemnified Items”) asserted by another party against Buyer for (i) claims that a Product infringes any U.S. patent, copyright or trade secret; provided, however, Seller’s liability under this clause does not extend to any such Indemnified Items caused by either (u) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (v) by any third party, (w) use of a Product in combination with equipment or software not supplied by Seller where the Product alone would not be infringing, (x) Seller’s compliance with Buyer’s designs, specifications or instructions, (y) use of the Product in an application or environment for which it was not designed, or (z) modifications of the Product by anyone other than Seller without Seller’s prior written approval. Buyer will promptly notify Seller in writing of any claim covered by Seller’s indemnification obligations hereunder. Seller may assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Buyer agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller’s infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Buyer with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER’S ENTIRE LIABILITY TO BUYER FOR, AND BUYER’S SOLE AND EXCLUSIVE REMEMDY IN RESPECT OF, THE CLAIMS DESCRIBED HEREIN.
(b) By Buyer. Buyer will indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys; fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors;
(ii) use of a Product in combination with equipment or software not supplied by Seller where the Product alone would not be infringing; (iii) Seller’s compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller’s prior written approval.
(c) LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE LIABILITY OF SELLER UNDER THESE TERMS AND CONDITIONS (WHETHER BY REASON OF BREACH OF CONTRACT, TORT, INDEMNIFICATION, OR OTHERWISE, BUT EXCLUDING LIABILITY OF SELLER FOR BREACH OF WARRANTY (THE SOLE REMEDY FOR WHICH IS PROVIDED UNDER THE PRODUCT AND SERVICES WARRANTIES HEREIN) SHALL NOT EXCEED AN AMOUNT EQUAL TO THE LESSER OF (A) THE TOTAL PURCHASE PRICE THERETOFORE PAID BY BUYER TO SELLER WITH RESPECT TO THE PRODUCT(S) OR SERVICES GIVING RISE TO SUCH LIABILITY OR (B) ONE HUNDRED THOUSAND DOLLARS ($100,000). NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE OF FACILITIES OR EQUIPMENT, LOSS OF REVENUE, LOSS OF DATA, LOSS OF PROFITS OR LOSS
OF GOODWILL), REGARDLESS OF WHETHER SELLER (a) HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR (b) IS NEGLIGENT.
13. TERM AND TERMINATION.
(a) This Agreement may be terminated at any time upon the mutual agreement of both Parties in writing.
(b) In the event of a Default under these Terms and Conditions or any Quote, by either Party, as provided in clause 10 Default, then the other Party may terminate these Terms and Conditions.
(c) This Agreement shall terminate automatically if such party becomes insolvent, dissolves or is dissolved, assigns its assets for the benefit of creditors or enters voluntarily into any bankruptcy or reorganization proceeding (or has failed for a period of at least sixty (60) days to dismiss any bankruptcy or reorganization proceeding that was filed against such Party involuntarily) or admits in writing its inability to pay its debts.
(d) Termination of these Terms and Conditions, for any reason, shall not release any Party from any liability or any obligation which, at the time of such termination, has already accrued to the other Party or which is attributable to a period prior to such termination. In addition, termination of these Terms and Conditions shall not preclude either Party from pursuing any rights and remedies it may have hereunder at law or in equity, subject to any limitations set forth herein.
14. ASSIGNMENT. Buyer may not delegate any duties or assign any rights or claims hereunder without Seller’s prior written consent, and any such attempted delegation or assignment shall be void.
15. CONFIDENTIALITY. Seller agrees not to knowingly disclose any confidential information or data obtained by it during the performance of any services when such information or data is clearly identified in writing by Buyer as confidential. Buyer agrees that all pricing, discounts and technical information that Seller provides to Buyer are the confidential and proprietary information of Seller. The parties agree to keep such information confidential and not disclose each other’s confidential information to any third party for one (1) year hereafter, and to use such information solely for Buyer’s internal purposes and in connection with the Products supplied hereunder. Nothing herein shall restrict the use of information available to the general public.
16. CONFIDENTIALITY. In the event that the Parties exchange Confidential Information, the following terms shall govern:
(a) Confidentiality and Restricted Use. Each Receiving Party of Confidential Information hereunder acknowledges the confidential and proprietary nature of the Confidential Information of the Disclosing Party and agrees that, for a period of five (5) years following the expiration or termination of this Agreement, such Confidential Information (i) shall be kept confidential by the Receiving Party; (ii) shall not be used for any reason or purpose other than in furtherance of such Party’s performance of its obligations hereunder; and (iii) without limiting the foregoing, shall not be disclosed by the Receiving Party to any person or entity, except (1) in each case as otherwise expressly permitted by the terms of this Agreement, (2) with the prior written consent of an authorized representative of the Disclosing Party, or (3) its employees, officers, directors, managers, and professional advisors who have a need to know such information to perform such Party’s obligations under this Agreement and who are bound by a legal, ethical or contractual obligation at least as stringent as those contained herein to not use and keep confidential such Confidential Information.
(b) Exceptions. The restrictions set forth above do not apply to that part of the Confidential Information of a Disclosing Party that the Receiving Party demonstrates (i) was, is or becomes generally available to the public other than as a result of a breach of this paragraph by the Receiving Party or its Affiliates or other representatives; (ii) was or is developed by the Receiving Party independently of and without reference to any Confidential Information of the Disclosing Party; or (iii) was, is or becomes available to the Receiving Party on a non-confidential basis from a third party not bound by a confidentiality agreement or any legal, fiduciary, or other obligation restricting disclosure.
(c) Legal Proceedings. If the Receiving Party becomes compelled in any legal proceeding or is requested by a governmental body having the requisite legal or regulatory jurisdiction and authority, the Receiving Party shall provide the applicable Disclosing Party with prompt notice of such compulsion or request so that it may seek an appropriate remedy or waive compliance with the provisions of this paragraph. In the absence of a protective order or other remedy, the Receiving Party may disclose that portion (and only that portion) of the Confidential Information of the Disclosing Party that, based upon advice of the Receiving Party’s counsel, the Receiving Party is legally compelled to disclose or that has been requested by such governmental body; provided, however, that the Receiving Party shall use reasonable efforts to obtain reliable assurance that confidential treatment will be accorded by any person, entity or governmental body to whom any Confidential Information is so disclosed. The provisions of this paragraph do not apply to any legal proceedings between the Parties to this Agreement.
(d) Return or Destruction of Confidential Information. Upon expiration or earlier termination of this Agreement, the Receiving Party shall promptly deliver to the Disclosing Party all Confidential Information of the Disclosing Party, together with all copies thereof, in the possession, custody or control of the Receiving Party or, alternatively, with the written consent of the Disclosing Party, destroy all such Confidential Information and certify such destruction in writing to the Disclosing Party; provided, however, that the Receiving Party may retain one copy of such Confidential Information in its legal department solely to facilitate the resolution of any controversies after the Disclosing Party’s Confidential Information is returned.
17. GOVERNING LAW, VENUE, and NO RIGHT TO JURY TRIAL. Buyer agrees that the laws of the State of California, without regard to choice of law principles will govern the Agreement, and any disputes concerning the subject matter addressed herein, and Buyer consents to the exclusive jurisdiction of and venue in any state or federal court located within the State of California. Each Party expressly waives its rights to trial by jury.
18. PUBLICITY. Buyer authorizes Seller to publicize its relationship with Buyer and to do so using Buyer’s name and logo on Seller’s website and other marketing materials. Such consent can be withdrawn by Buyer at any time via email. Seller’s use of Buyer’s name and logo according to this paragraph does not create any ownership right therein and all rights not granted to Seller are reserved by Buyer. Such consent can be withdrawn by Buyer at any time via email. Seller’s use of Buyer’s name and logo according to this paragraph does not create any ownership right therein and all rights not granted to Seller are reserved by Buyer.
19. DATA PRIVACY
(e) Seller and Buyer will each comply with all applicable laws relating to personal data.
(f) Seller will process all personal data provided to it by the Buyer in accordance with the Seller Data Privacy Policy.
(g) Buyer undertakes not to submit to Seller any data, including any patient, medical or other protected health information or other non-public information about individuals or other data similar to the foregoing that is protected under foreign or domestic laws or regulations (collectively, “Prohibited Data”). Notwithstanding any other provision to the contrary, Seller shall have no liability whatsoever under (a) the Contract, or (b) any laws, rules, regulations, or industry standards by which Buyer is required to comply, for any Prohibited Data submitted to Seller in violation of this Section 20.
20. NON-WAIVER. No term or provision hereof shall be deemed waived, and no breach excused, unless such waiver or consent shall be in writing and signed by a duly authorized representative of the Party claimed to have waived or consented.
21. HEALTHCARE LAW COMPLIANCE. Buyer acknowledges and agrees that as a healthcare company, Seller, and Seller’s affiliates, may be required by applicable law and regulation (“Healthcare Laws”) to disclose the existence of these terms and conditions, the terms herein including financial terms, and the subject matter (e.g., the U.S. Sunshine Act, and state and foreign equivalents). Seller agrees it, and its Affiliates, will disclose the least amount of information as possible in order to comply with such Healthcare Laws.
22. EXPORT COMPLIANCE. The Products, any related technology, or information provided to Buyer may be subject to restrictions and controls imposed by United States export control laws and regulations and other countries’ applicable export control laws and regulations. Notwithstanding anything to the contrary in these terms and conditions, Buyer agrees not to export, re-export, transfer, distribute, release, or use the Products, any related technology, or information sold to Buyer into, any country or to any person or entity, or in any manner, in violation of such controls or any other laws, rules or regulations of any country, state or jurisdiction.
23. MISCELLANEOUS. The titles and headings used in these Terms and Conditions are for convenience only and shall not be used to interpret the terms and conditions of these Terms and Conditions. This Agreement is not binding on Seller until signed by an authorized representative of Seller. If a Party delays or fails to enforce any of its rights under these Terms and Conditions, any Quote or accepted Purchase Order, such Party will be able to enforce its rights at a later time. The terms of these Terms and Conditions and all Quotes are Seller Confidential Information and Buyer Confidential Information and shall not be disclosed by either Party to any third party, except as may be required by law or government regulation or for a Party to exercise its rights or fulfill its obligations under this agreement.
[End of Agreement]
