Product Rental and Services
GENERAL TERMS AND CONDITIONS
Effective October 1, 2020
- Rental Details
LabMinds hereby rents to Customer the Products listed above during the Rental Term and will provide the Services for the fees set forth in the applicable Quote.
During the Rental Term, title to the rented Products shall at all times remain with LabMinds. Upon exercise and payment of the Buyout Option pursuant to Section 5.4, title to the purchased Products shall transfer to Customer. Title to the Software and Services shall at all times remain with LabMinds and its Licensors.
- Delivery, Installation and Acceptance
- LabMinds shall arrange for the delivery of the Products and Starter Kit to Customer’s address listed in the applicable LabMinds Quote using a carrier selected by LabMinds, or Customer’s designated carrier. LabMinds shall invoice Customer for all costs associated with the shipping and insuring of the Products. LabMinds will not be responsible for delays in shipment. Such costs and charges will be invoiced at actual cost with no markup, or Customer may pay its designated carrier directly. All shipments of the Products will be made FOB LabMinds’ U.S. shipping point.
- The Products will be delivered to Customer in custom shipping containers and packaging and Customer shall store all such containers and other packaging in a clean and safe location until the end of the Rental Term. In the event Customer destroys or damages shipping containers and packaging, Customer agrees to compensate LabMinds for new shipping containers and packaging at LabMinds’ then standard rates.
- Prior to Product delivery, and at all times thereafter, Customer shall be solely responsible for meeting all site, access, tooling, power, water and drain requirements set forth in LabMinds’ Revo Facilities Overview Documentation.
- Prior to Product delivery, and at all times thereafter, Customer shall be solely responsible for meeting the device, system, network and other IT requirements set forth in LabMinds’ Revo IT Introduction Documentation. Customer shall be solely liable for any water supply issues, drainage issues, and internet or power issues in connection with Customer’s use of the Revo System at Customer’s facilities.
- Customer shall provide LabMinds with reasonable access to Customer facilities at the address where the Products will be located at all reasonable times in order for LabMinds to provide Instrument Setup and Services. Customer, at its own expense, shall make available to LabMinds or LabMinds’ subcontractors, the assistance of appropriate staff familiar with Customer’s use of the Products. Customer will also provide LabMinds or LabMinds’ subcontractors with adequate working space, a staging area, and access to the internet and telephone lines.
- In the event that LabMinds is unable to install the Products due to Customer’s failure to meet the requirements of Section 3.3. Section 3.4 or Section 3.5, Customer shall be responsible for payment of all expenses, fees and/or costs that LabMinds has incurred in connection with Instrument Setup services including, without limitation, all Product shipping, travel and living expenses at LabMinds’ standard rates. In addition, LabMinds’ Installation Fee will continue to be due and payable to LabMinds, notwithstanding LabMinds’ inability to install the Products due to Customer’s failure to meet the requirements set forth herein.
- Customer shall provide LabMinds with a current and effective purchase order at all times for each Product location that is subject to Customer Solution Orders to be reflected on a Monthly Invoice.
- All orders are firm and Customer may not cancel or modify an order without the prior written consent of LabMinds. In the event that LabMinds agrees to change an order, price adjustment, cancellation and/or restocking fees may apply.
- LabMinds reserves the right to accept or reject any order. Customer will be deemed to have accepted the Agreement by issuing a purchase order or by any other statement (including, without limitation, via e-mail), act, course of conduct, dealing, or performance constituting acceptance under applicable law, including, without limitation, failure to object in writing to the Agreement within a reasonable time or by acceptance of and/or payment for the product or service. All purchase orders or similar order instruments issued by Customer will be governed only by the Agreement, and any additional and/or inconsistent terms and conditions set forth in any acknowledgment, purchase order, or acceptance documents requested from and/or provided by Customer are expressly rejected. Neither LabMinds’ delivery of the Products or services nor any other action, conduct, or performance shall constitute acceptance of any terms or conditions different from the Agreement.
- Customer will maintain the Product in the condition in which the Product was provided to Customer, and shall not cause or allow any loss of or damage to the Product, other than reasonable wear and tear (“Customer Maintained Product Condition”). Customer shall promptly notify LabMinds if the Product requires any repairs or maintenance or if the Product is damaged, lost or stolen. LabMinds will conduct any necessary repairs or maintenance needed over and above the Customer Maintained Product Condition at Customer’s sole cost and expense, and Customer will not attempt under any circumstances or for any reason to repair or modify any Product without LabMinds’ prior written consent. Customer represents and warrants that each Product shall be located at its address set forth in the Description section of this Agreement and shall not be removed therefrom without the prior written consent of LabMinds. Customer shall use and store each Product in accordance with such documentation and procedures as LabMinds may deliver to Customer. During the Rental Term, LabMinds shall use commercially reasonable efforts to service and maintain the Product in accordance with its usual policies, procedures and documentation including Remote Support and Site Visits.
- Customer hereby assumes and shall bear the entire risk of loss, theft, destruction, and damage to each Product from any cause whatsoever; from the time such Product is shipped to Customer. No loss, theft, destruction or damage to any Product or any part thereof shall release or impair any obligation, including the payment of fees, of the Customer under this Agreement. If a Product is determined by LabMinds to be lost, stolen, destroyed or damaged beyond repair, Customer shall pay LabMinds in immediately available funds all amounts and fees then owed by Customer to LabMinds as set forth herein and in the applicable Order Agreement and Invoice. In addition, Customer shall pay LabMinds an amount equal to the repair or replacement cost of the Product at the time of loss or damage.
- Customer shall, at its own cost and expense, keep each Product fully insured against all risks of loss or damage, and shall maintain public liability and property damage insurance covering each Product, all in such amounts, upon such terms and written by such companies as LabMinds shall approve. All such insurance policies shall name both LabMinds and Customer as insureds, shall provide for at least thirty (30) days’ prior written notice to LabMinds of any cancellation or alteration thereof, and shall provide that all amounts payable by reason of loss, theft or damage to the Product shall be payable only to LabMinds. Customer shall deliver a certificate of insurance covering the Product and naming LabMinds as the named insured to LabMinds upon the Product Delivery Date and thereafter immediately upon request.
- LabMinds may terminate the Rental Term, take possession and remove the Products and Customer hereby grants an irrevocable license to LabMinds to enter Customer’s premises for such purpose, for (i) the non-payment when due of any rental payment or other amount provided for herein, (ii) a breach of any other provision or section of the Agreement, (iii) the issuance of any writ or order of attachment or execution or other legal process against any Product which is not discharged or satisfied within ten (10) days after issuance, (iv) Customer has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Customer assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding, (v) the termination of Customer’s existence or operations whether by discontinuance, dissolution, or winding up; or (vi) any merger, change of control or similar event involving Customer. Expiration or earlier termination of the Rental Term hereunder shall not affect Customer’s duty to perform Customer’s obligations.
- If the Buyout Option is exercised, LabMinds reserves the right to discontinue any service on older versions of the Machine.
4.1 Instrument Setup: LabMinds will set up the Products in accordance with its set up specifications and guidelines. LabMinds will also provide the Customer with eight (8) hours of initial training during the setup operation.
4.2 Instrument Care: During the Instrument Care Term, LabMinds will provide Customer with the Customer-selected Instrument Care Program in accordance with the Instrument Care Program Documentation.
4.3 Remote Services: During the Remote Service Term, LabMinds will provide the Customer with Remote Services, which includes 24/7 access to LabMinds’ online database, Remote Support from LabMinds’ technicians, LabMinds’ technician problem solving, data storage, access to all LabMinds’ recipes (including Customer’s recipes), repository for Customer Free Form Solutions, access to all future recipes created by Customer, Software Updates, Vendor Managed Inventory (which includes management of and automatic ordering of applicable Consumables inventory from LabMinds and management of the logistics related to timely delivery, and extensive reporting on Customer Solution Orders and Revo Systems activities). The Revo System requires either a period of time to develop a forecast, or a forecast from the Customer, before it is able to utilize historical volume and data regarding new Consumables. LabMinds reserves the right to change Consumables’ specifications, packaging, and/or design at its sole discretion.
4.4 Vendor Managed Inventory: Each Revo System will automatically track inventory levels of, and order from LabMinds quantities and volumes of, Consumables necessary for the Revo to continue to fulfill Customer’s orders of Solutions based upon Customer’s historical volume associated with each Solution. The Customer Consumables orders will be delivered to Customer’s address where the applicable Revo System is located. Customer shall be solely responsible for re-stocking the Revo with Consumables and for any shortages.
- Term and Termination
- Unless earlier terminated under Section 5.8 or Section 5.9, the Agreement commences on the Product Acceptance Date and continues for a period of five (5) years or as otherwise set forth in the applicable Quote (“Rental Term”) unless (i) the parties agree to mutually extend the term of the Agreement, (ii) enter into a new Rental Agreement for new Products, or (iii) Customer exercises the Buyout Option in which case the Agreement shall continue in accordance with Section 5.4 below.
- At the end of the Rental Term, if Customer has not exercised the Buyout Option or the parties have not extended the Rental Term, Customer shall pack each Product and related accessories in the custom shipping container(s) and packaging that the Product was delivered in using the highest industry standards and Customer shall make each Revo and related accessories available to LabMinds’ carrier for pick up at the Customer’s premises listed on the Description section of this Agreement. Customer’s preparation of the Product for pickup shall be done in accordance with the instructions provided by LabMinds, such instructions to include, but not be limited to, removing all Consumables, cleaning the Machine and disconnecting the Machine. The Product shall be returned to LabMinds in good working condition, normal wear and tear excepted. At the end of the Rental Term, Customer will be deemed to have purchased, and all such amounts are due and payable, all un-consumed Consumables in Customer’s possession at the end of the Rental Term unless Customer has elected to purchase the Product or extend the Rental Term, in which case all Consumables shall be billed as per Section 6.
5.3 Upon termination or expiration of the Agreement, in the event that Customer does not comply with Section 5.2, LabMinds may take possession of and remove the Products from Customer’s premises at Customer’s sole cost and expense, and Customer hereby grants an irrevocable license to LabMinds to enter Customer’s premises without hindrance for such purpose.
5.4 At any time during the Rental Term or at the expiration of the Rental Term, so long as Customer is not in breach of the Agreement, Customer may elect to purchase the Products (“Buyout Option”) by paying to LabMinds the Products’ then current buyout value (“Purchase Buyout Value”) which will be determined as follows:
5.4.1 The Purchase Buyout Value is LabMinds’ then current price of the applicable Products, minus the Qualified Product Payments received.
5.4.2 Customer will receive a credit equal to 50% of the Qualified Product Payments (no credit for Services payments) made through the date of the Customer’s firm, non-cancellable, written directive to exercise the Buyout Option.
5.4.3 Qualified Product Payments are the sum of all Product rental payments made multiplied by the credit factor of 50%, limited to a cap of 50% of the selling price of the Products at the time of the original Agreement was entered into (“Qualified Product Payments”).
5.4.4 The Purchase Buyout Value payment is due thirty (30) days from the date of the Customer’s written notice to exercise the Buyout Option. After all amounts due by Customer under the Agreement have been paid in full, the Security Deposit may be applied as a reduction to the Purchase Buyout Value payment.
5.4.5 In between the time the Customer, in writing, exercises the Buyout Option and LabMinds receives the Purchase Buyout Value payment, LabMinds will arrange to perform services to ensure the Product is properly calibrated and functioning within specifications.
5.4.6 If the Customer elects to purchase the Products, the Agreement continues as per Section 5.1 and remains in full force and effect with Customer continuing to pay the Services Fees. Upon LabMinds’ receipt of the Purchase Buyout Value payment, no further Rental Fee will be due for use of the purchased Products.
5.5 If the Products have been replaced by LabMinds for any reason during the Rental Term, any Rental Fee payments made prior to the replacement Products are installed will be excluded from the Qualified Product Payments.
5.6 Remote Services commences on the Product Acceptance Date and continues during the Rental Term and any renewal term (“Remote Services Term”). If Customer exercises the Buyout Option and Customer elects to purchase the Instrument Care Program, then Customer will receive Remote Services as part of the Instrument Care Program. If Customer exercises the Buyout Option but does not elect to purchase the Instrument Care Program, then Remote Services will continue to be provided as a separate service subject to LabMinds’ then current Remote Services Fee with automatic renewal terms of twelve (12) months’ duration thereafter on each anniversary date of Customer’s exercise of the Product Buyout unless Customer gives LabMinds at least thirty (30) days’ prior written notification of its request not to renew or unless earlier terminated under Section 5.8 or Section 5.9 below. After the initial Remote Services Term, renewal terms are subject to price adjustments.
5.7 The Instrument Care Program commences on the Product Acceptance Date and continues during the Rental Term. If Customer exercises the Buyout Option and Customer elects to purchase the Instruction Care Program, then Customer will receive the Instrument Care Program for a period of twelve (12) months from the date Customer exercises the Buyout Option and during any elected renewal terms (“Instrument Care Program Term”). After the Initial Instrument Care Program Term, if Customer has purchased renewal terms of the Instrument Care Program, LabMinds will continue such coverage during the purchased term at LabMinds’ standard rates in effect at that time, subject to price adjustments.
5.8 Either party may terminate this Agreement for convenience (“Convenience”) upon at least ninety (90) days prior written notification. In the event that LabMinds terminates for Convenience, Customer will pay LabMinds all amounts due for use of the rented Products and for Services received through the date of termination and LabMinds will refund to Customer any prepaid fees paid and the Security Deposit, less any amounts owed to LabMinds in accordance with LabMinds’ termination policy. In the event that Customer terminates for Convenience, Customer will pay to LabMinds all amounts due including those for rented Products and for Services for the remainder of the ninety (90) day termination period even if Customer discontinues use of the Products and/or Services. In each case, upon termination all outstanding amounts due are to be paid in full within ten (10) days of the effective date of such termination, excluding Consumables which will continue to be invoiced as set forth in Section 6. If Customer terminates, the Security Deposit will be returned after all amounts have been paid and the Products are returned to LabMinds.
5.9 Either party may terminate this Agreement immediately for breach or in the event that the other party is insolvent, unable to pay its bills when due, or has filed for receivership or bankruptcy (“Cause”). In the event that LabMinds terminates for Cause, Customer will pay to LabMinds all fees including those for rented Products and Services for the ninety (90) period following the termination notice, in each case all amounts shall be paid in full within ten (10) days of the effective date of such termination. In the event that Customer terminates for Cause, Customer will pay LabMinds all fees due for use of the rented Products and for Services received through the date of termination and LabMinds will refund to Customer any prepaid fees paid and the Security Deposit, less any amounts owed to LabMinds in accordance with LabMinds’ termination policy.
5.10 Proper use and operation of the Products depends, and is conditioned, upon purchasing of Remote Services. Accordingly, upon termination or expiration of Remote Services, LabMinds no longer supports the Products and Customer’s continued use of the Products is at Customer’s own risk.
- Price, Payment Terms and Taxes
- The pricing of Products and Services is set forth in the applicable Quote. The Rental Fee is fixed during the Rental Term. The Rental Fee includes the fee for Remote Services and the Instrument Care Program. Consumable prices are fixed for ninety (90) days, and then subject to LabMinds’ then current prices, which may adjust as frequently as monthly.
- All Rental Fees and Service Fees are due on the 1st of the month in advance. Each monthly upcoming Rental Fee and Service Fee will be invoiced, as a convenience to Customer, on a regular monthly basis.
- Except as set forth in Section 6.4 and Section 6.5, all Consumables are billed on a Solutions basis meaning the Consumables that are consumed as part of Customer Solution Orders during the month are aggregated and reflected on a monthly invoice with payment due within thirty (30) days of the date of invoice.
- All Consumables that are not consumed as part of Customer Solutions Orders will be invoiced by LabMinds separately with payment due within thirty (30) days of the date of invoice.
- All Wear Parts will be invoiced by LabMinds separately with payment due within thirty (30) days of the date of invoice.
- If Customer fails to make payments when due and such failure continues for a period of ten (10) days after LabMinds notifies Customer in writing of such failure, the supply of any products or services (including, without limitation, Consumables, Purchased Services and Remote Services) may be terminated or suspended by LabMinds without further notice. All payments are to be made in United States currency. LabMinds may charge Customer interest on overdue amounts from the date such amount became due at the rate of one and one-half percent (1.5%) per month. Customer will be responsible to reimburse LabMinds for all of LabMinds’ expenses (including attorney’s fees) in the event LabMinds seeks collection of amounts due.
- Payments for services which are provided on a time and materials basis will be invoiced upon completion of the service with payment due within thirty (30) days from the date of invoice.
- Payments for parts which are not included in Purchased Services, shall be invoiced separately with payment due within thirty (30) days from the date of invoice.
- All amounts due are exclusive of all taxes. All taxes of any nature, which are billed to Customer, shall be identified, separately stated, and paid by Customer or, in lieu thereof, Customer, shall provide LabMinds with a tax-exemption certificate acceptable to the relevant taxing authorities. To the extent LabMinds is required to collect taxes, the taxes shall be added to the invoice on a separate line.
- Payment Instructions: Electronic Transfer (preferred): Please refer to Wire Instructions document shared separately. Or by check, mail to: LabMinds, Inc. Accounts Receivable, 230 Somerville Avenue, Somerville, MA 02143, or as may be changed by LabMinds from time to time in writing.
Any notices, consents or other communications required to be sent or given hereunder by either party shall in every case be in writing and shall be deemed properly served if: (a) delivered by hand; (b) transmitted by e-mail or other means of electronic transmission; (c) delivered by Federal Express or other express overnight delivery service; or (d) delivered by registered or certified mail, return receipt requested. Notices to both parties shall be to the attention of the individuals as set forth in the applicable Quote. Such notices shall be effective on: (i) the date such notice is delivered by hand; (ii) the date such notice is delivered by e-mail or other form of electronic transmission, provided that a copy of such notice is sent by one of the methods specified in clause (a), (c) or (d) within one (1) business day of such transmission; (iii) one (1) business day following the delivery by Federal Express or other express overnight delivery service; or (iv) three (3) days after the date of mailing if sent by registered or certified mail.
- General Terms
“Acceptable Use Policy” is LabMinds’ then current published written policy governing proper use of its Remote Services.
“Acceptance” means when LabMinds, or an Approved Third Party Installation Company, installs a Product and the Product passes the applicable IQ, OQ and LPQ testing.
“Accredited Services” means services performed by a LabMinds’ approved third party in order to perform compliant calibration of the sensor(s) of the Revo in accordance with Good Manufacturing Practices (GMP).
“Accessory” and “Accessories” means the accessory products for use in connection with the Machine, as may be further identified on the applicable Quote.
“Agreement” means the applicable LabMinds Quote, these General Terms and Conditions, Invoice, and any other LabMinds attachments thereto.
“Anonymized Process Data” means Data gained from the process of a Revo standard operating procedure being run. This Data consists of the various sensor readings that are recorded during a Revo System’s operation. This Data is used to train the LabMinds AI.
“Approved Third Party Installation Company” means a third-party installation company approved in writing by LabMinds.
“Buyout Option” means Customer’s option to purchase the Product pursuant to Section 5.4.
“Confidential Information” means all nonpublic information disclosed by LabMinds, LabMinds’ affiliates, business partners, customers of LabMinds or its customers’ respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes, but is not limited to: (i) nonpublic information relating to LabMinds or LabMinds’ affiliates, customers’, business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (ii) Data; (iii) third-party information that LabMinds is obligated to keep confidential; (iv) Products, Purchased Services, Remote Services and Software and information related thereto; and (v) the nature, content and existence of any discussions or negotiations between Customer and LabMinds or LabMinds’ affiliates. Confidential Information does not include any information that: (A) is or becomes publicly available without breach of the Agreement; (B) can be shown by documentation to have been known to Customer at the time of Customer’s receipt from LabMinds; (C) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (D) can be shown by Customer’s written records to have been independently developed by Customer without reference to Confidential Information.
“Consumable” means components of the Revo that are consumed in connection with a standard operating procedure such as chemicals, solution filters and labels.
“Consumables Shipment” or “Consumables Shipments” refers to any shipment(s) arranged by LabMinds containing Consumables for consumption by the Machines at Customer’s premises.
“Custom Solution” means a custom solution developed by LabMinds in response to a specific Customer request. Once developed, the Custom Solution will be available exclusively to such Customer for future ordering. Unlike a Platform Solution or a Free Form Solution, a Customer Solution cannot be ordered from the GUI without LabMinds customized development work.
“Customer” is the entity renting Products and Services from LabMinds set forth in the applicable LabMinds Quote.
“Customer Data” means non-public data belonging to a Customer including: (i) Customer assigned names and the associated Customer recipes specifications, (ii) Customer assigned usernames, (iii) Customer assigned Revo names, (iv) Customer’s Revo System history, (v) any Customer data concerning Customer’s product or service, and (vi) any Customer organizational data.
“Customer Solution Orders” means Customer orders which are placed for Solutions.
“Data” means product specifications, ingredients, instructions, and other information directly or indirectly relating to materials produced by the Machine or materials similar thereto, or used with the production of materials by the Machine, or used within the Remote Services.
“Documentation” means the published user documentation then available as provided from time to time by LabMinds generally to its customers.
“Force Majeure” means a force majeure event listed in Section 8.8.9.
“Free Form Solution” means a Solution that has been programmed into the Revo System by the Customer who has control of the recipe and related inputs without any LabMinds’ qualification. Unlike a Custom Solution or Platform Solution where LabMinds has validated the recipe, LabMinds does not validate the recipe of a Free Form Solution. LabMinds shall have no liability whatsoever for Customer’s preparation or use of a Free Form Solution, which shall be ordered and used at Customer’s sole risk.
“GUI” means graphical user interface.
“Hardware Upgrade” means any enhanced or additional hardware, which enhances the performance of the Product, made available by LabMinds from time to time in LabMinds’ sole discretion.
“Installment Sale” means Customer’s purchase of a Product by making regularly scheduled payments over a stated installment term.
“Instrument Care Program” or “ICP” means variable levels of LabMinds’ service which are outlined in the Instrument Care Program Documentation.
“Instrument Setup” means LabMinds’ or an Approved Third Party Installation Company’s installation of the Product at the location agreed upon in writing by LabMinds and Customer.
“Invoice” means the document created by LabMinds to invoice the fees owed to LabMinds.
“IQ” or “Installation Qualification” means the phase of the installation process where the Products’ components are verified and tested to confirm that they meet the specifications in the Documentation and that the Customer is meeting the requirements set forth in LabMinds’ Revo Facilities Overview Documentation and LabMinds’ Revo IT Introduction Documentation. Customers shall be solely responsible and liable for any damages resulting from any failure to meet the requirements set forth in the aforementioned documentation notwithstanding any verification or testing by LabMinds.
“LabMinds” means LabMinds, Inc., a Delaware corporation including its parent company.
“LabMinds AI” is the chemistry and artificial intelligence LabMinds uses to guide a standard operation procedure to achieve various targets such as a specific pH value.
“LabMinds Deliverables” means LabMinds’ Products, Non-Wear Parts, Wear Parts, Consumables, Solutions, Purchased Services, Software and Remote Services, as applicable.
“LPQ” or “Limited Performance Qualification” means the final phase of the Instrument Setup process where the Products are used to prepare a number of predetermined Solutions to confirm that the Products are meeting the operational specifications set forth in the Documentation.
“Machine” means the Revo or any other primary hardware product delivered by LabMinds.
“Monthly Invoice” means the regular monthly invoice that LabMinds sends to Customer.
“Non-Wear Parts” means any parts that are used to replace defective parts in a Product such as central mixing chamber module, pumps and motors covered by the Standard Warranty.
“OQ” or “Operational Qualification” means a phase of the Instrument Setup process where the Revo System is tested to confirm that the Revo System is meeting the operational specifications set forth in the Documentation.
“Platform Solution” means a solution where the standard operating procedure uses the LabMinds AI to calculate the specific reagent amounts to use. This is different from Free Form Solutions where the Customer defines the specific reagent amounts or Custom Solutions where the specific amounts have been established by LabMinds.
“Preventative Maintenance and Calibration” means a regularly scheduled Site Visit to ensure the Machine operates within its specifications.
“Product” and “Products” means any Machine and its Accessories made available from time to time by LabMinds to its customers.
“Product Acceptance Date” means the date that the Product is Accepted as set forth in the Product Acceptance Document.
“Product Acceptance Document” means the document that LabMinds and Customer sign upon completion of Acceptance which lists the Product Acceptance Date and includes the applicable Revo serial number.
“Purchased Services” means all of the paid services (except for Remote Services) associated with Products offered by LabMinds or its subcontractors including the Instrument Care Program, Preventative Maintenance and Calibration, Site Visits, and other mutually agreed upon services.
Product Delivery Date” means the date that the Product is delivered to the Customer site listed on the applicable Quote.
“Quote” means LabMinds quote which incorporates these General Terms and Conditions.
“Remote Services” means the services which includes 24/7 access to LabMinds’ online data base, Remote Support from LabMinds’ technicians, LabMinds’ technician problem solving, data storage, access to LabMinds’ recipes (including Customer’s recipes), repository for Customer Free Form Solutions, access to all future recipes created by Customer, Software Updates, and Vendor Managed Inventory.
“Remote Services Term” means the period of time that Customer will receive Remote Services.
“Remote Support” means LabMinds’ remote support of a Machine as necessary to service and maintain the Machine through the cloud as outlined in the Remote Services Documentation.
“Revo” means the LabMinds Revo machine identified on the Quote and/or on the Invoice.
“Revo System” means the Machine utilizing the Remote Services.
“Services” means the LabMinds’ services such as Instrument Care Program, Remote Services and Instrument Setup.
“Site Visit” means LabMinds or LabMinds’ contractor visiting the Machine location to perform Preventative Maintenance and Calibration and other services.
“Software” means the software described in Section 8.4.3.
“Software Updates” means updates to the features and/or functionality of the Revo System as determined by LabMinds from time to time.
“Solution” or “Solutions” means either an output or multiple outputs created for Customers by the Revo System using a standard operating procedure. Solutions are Custom Solutions, Free Form Solutions, or Platform Solutions (as further defined herein)
“Starter Kit” means the kit containing Consumables for the Revo System in order for Customer to make the initial Customer Solutions as mutually agreed upon by Customer and LabMinds.
“Vendor Managed Inventory” means the automatic tracking by the Revo System of the inventory levels of, and order from LabMinds quantities and volumes of, Consumables necessary for the Revo to continue to fulfill Customer’s orders of Solutions based upon Customer’s historical volume associated with each Solution.
“Wear Parts” means parts that are consumed on a regular basis such as tubing, filters for water purifier and pH probes.
- Remote Services.
- During the Remote Services Term, LabMinds grants Customer and its subcontractors approved in writing by LabMinds, the right to access and use the Remote Services as further described herein. LabMinds reserves all other rights. Customer will not use the Remote Services in any manner or for any purpose other than as expressly permitted herein. Customer will use the Remote Services in accordance with (i) the Acceptable Use Policy and (ii) all laws, rules and regulations applicable to Customer’s use of the Remote Services.
- Customer may not (i) reverse engineer, decompile, hack, disassemble, work around, disable, interfere, decode, copy, modify, distribute or create any derivative or compilation works of the Remote Services or redeliver the Remote Services using framing or similar technology, (ii) disrupt the integrity or the performance of the Remote Services, (iii) allow third parties to use the Remote Services or any third-party data contained therein, (iv) access the Remote Services in order to build a competitive Remote Service or service or copy any ideas, features, functions or graphics of the Remote Services, (v) attempt to gain unauthorized access to the Remote Services or the related systems or networks, (vi) collect, store or harvest information from the Remote Services, (vii) interfere or attempt to interfere with the proper working of the Remote Services, (viii) bypass measures used by LabMinds to prevent or restrict access to the Remote Services, (ix) violate or attempt to violate the security or authentication measures of the system, or attempt to prove, scan or test the vulnerability of a system or network without proper written authorization from LabMinds; (x) disable or tamper with any mechanism that meters Customer’s use of the Remote Services, (xi) rent, lease, lend, resell, transfer, or host the Remote Services, or any portion thereof, to or for third parties, or (xii) authorize, permit or encourage any third party to do any of the above.
- Customer is responsible for its employees’ and contractors’ use of the Remote Services in accordance with the provisions herein. Customer is responsible for all activities that occur under Customer’s account, regardless of whether the activities are authorized by Customer or undertaken by Customer, Customer’s employees or a third party (including Customer’s contractors or agents), and LabMinds and its affiliates and licensor are not responsible for unauthorized access to Customer’s account.
- Customer is responsible for maintaining the confidentiality of any non-public authentication credentials associated with Customer’s use of the Remote Services which is for internal use only and Customer will not sell, transfer or sublicense them to any other entity or person.
- LabMinds, or its third-party licensors, may implement reasonable and appropriate measures designed to help Customer secure Data provided by the Customer against accidental or unlawful loss, access or disclosure. LabMinds, or its third party licensors, will not use Data identifying the Customer except (i) as necessary to maintain or provide the Remote Services, (ii) as necessary to comply with the law or a binding order of a governmental body, (iii) to provide Customer with support services initiated by Customer, (iv) investigate fraud, abuse or violations of the provisions herein, or (v) to support investigation personnel.
- LabMinds grants to the Customer a non-exclusive, revocable, non-assignable, and non-transferable license to use the Software only as specifically needed by the Customer to use the Remote Services.
- Unless otherwise set forth in the Agreement and subject to Section 8.2.9 below, Customer’s Remote Services Term will automatically renew for consecutive twelve (12) month terms. Fees for renewal terms are subject to change at LabMinds’ discretion.
- Remote Services is subject to downtime for maintenance, outages, system updates, and similar types of occurrences.
- LabMinds may suspend or terminate Customer’s use of the Remote Services if: (i) it is reasonably needed to prevent unauthorized access to Data; (ii) Customer fails to respond to a claim of alleged infringement within a reasonable time; (iii) Customer does not pay amounts due under this Agreement; (iv) Customer does not abide by the Acceptable Use Policy or Customer violates other terms of this Agreement; (v) Customer poses a security risk; (vi) Customer adversely impacts LabMinds’ or LabMinds’ third party licensor’s system; (vii) Customer subjects LabMinds, its affiliates, licensors, or any third party to liability; (viii) Customer has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Customer assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; (ix) LabMinds’ relationship with a third-party licensor who provides software, services or other technology in connection with LabMinds’ provision of Remote Services expires, terminates or requires LabMinds to change the way LabMinds provides the software or other technology as part of the Remote Services; or (x) it is reasonably needed in order to comply with the law or requests of governmental entities.
- If LabMinds suspends or terminates Customer’s Remote Services or in the event of expiration of Customer’s Remote Services, Customer’s right to access or use any portion or all of the Remote Services shall be terminated and (i) Customer remains responsible for all fees and charges Customer incurs during the period of suspension and for the remainder of the Remote Services Term, which shall be due and payable within ten (10) days of the effective date of such termination; (ii) Customer will immediately return or, if instructed by LabMinds, destroy all LabMinds Confidential Information in Customer’s possession; and (iii) Customer will not use the Product.
- LabMinds warrants that the Purchased Services provided hereunder will be of the kind and quality designated and will be performed by qualified personnel. LabMinds shall use reasonable efforts, based on the information supplied by Customer, to have all Purchased Services performed in a competent and professional manner by employees or subcontractors of LabMinds having a level of skill commensurate with the requirements of this Agreement. Customer’s sole and exclusive remedy for a breach of this warranty shall be LabMinds’ re-performance of the Purchased Services.
- LabMinds warrants that the Remote Services will meet in all material aspects the service description set forth in the Documentation during the Remote Services Term. Customer’s sole and exclusive remedy for a breach of this warranty shall be that Customer may cancel the Remote Services and receive a refund of any prepaid Remote Service Fees.
- LabMinds is not responsible for the impact of factors including, without limitation, machine cycles, sanitation, humidity, and operator practices (including, without limitation, misuse, abuse, and/or negligent operation, or unauthorized modifications, adjustments, and/or repairs) on serviced equipment and will not be required to perform services on equipment subjected to such factors. Any services performed by LabMinds on equipment subjected to such factors will be charged to Customer on a time and materials basis only. All formulae, drawings, illustrations, descriptive matter, and particulars contained in LabMinds’ catalogs, website, and marketing materials, and any technical advice or other statements given by LabMinds or its representatives with respect to the use of the Product or any results that may be obtained therefrom, are indicative only and do not form a part of the Agreement and are not representations and warranties of any kind.
- The Remote Service warranty is subject to the following limitations: (i) the limited warranty does not cover problems caused by accident, abuse or use of the Remote Services in a manner inconsistent with the terms and conditions set forth herein or LabMinds’ published Documentation or guidance, or resulting from events beyond LabMinds’ reasonable control such as internet outages and connectivity issues and other Force Majeure (as defined in Section 8.8.9 below) causes; and (ii) the limited warranty does not apply to problems caused by Customer’s failure to meet minimum system requirements.
- LabMinds’ ability to perform Purchased Services is subject to Customer’s cooperation, including the provision of adequate permanent, uninterrupted internet connection to the Product. LabMinds shall have no liability for a Product, a Revo System or service failure, and Purchased Services does not cover, issues due to (i) an internet issue, error, disruption, or downtime including, but not limited, to a security breach, (ii) inadequate water pressure, drainage issues, power outages or surges, defective pipes or wires, or (iii) or any other condition or limitation due to Customer’s facility, systems or negligence.
- Customer shall use the Products in the manner contemplated by the Documentation. Customer shall supervise, manage and control the proper use of the Products (including routine Product maintenance that LabMinds may reasonably specify from time to time) according to the terms and conditions of this Agreement. Customer shall ensure that only properly trained staff use the Products and that such staff follow any maintenance bulletins, advice and recommendations issued by LabMinds from time to time. If Customer provides Products for use by any third party, or permits, allows or facilitates the use of Products by any third party, Customer shall ensure that such third party is informed of and complies with the restrictions on use set forth herein and in the Documentation.
- Customer acknowledges and agrees that all use of Solutions by Customer or any third party shall be at Customer’s sole and exclusive risk.
- Customer acknowledges that any and all Non-Wear Parts are provided “as is,” without warranty.
- Remote Services.
- EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 8 WHICH ARE SUBJECT TO AN EXCLUSIVE REMEDY, LABMINDS DELIVERABLES ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, LABMINDS AND ITS AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING LABMINDS DELIVERABLES INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS AND DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, THAT USE OF THE LABMINDS DELIVERABLES WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND THAT ANY DATA WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED. LABMINDS DOES NOT WARRANT ANY THIRD PARTY PRODUCTS OR SERVICES. LABMINDS SHALL PASS ON TO THE EXTENT ALLOWED ANY THIRD PARTY WARRANTIES, IF ANY.
- Customer acknowledges that it is responsible for: (i) reviewing the Documentation included with the Products, attached to the applicable Quote, or otherwise made available by LabMinds, (ii) reviewing the Product’s warning labels and any material safety data sheets, (iii) obtaining training in use of the Product before any use commences, and (iv) ensuring that all Customer personnel understand the Product, its manner of operation, and potential harms that might be caused. In the event that LabMinds provides training to Customer’s personnel, such training shall be at Customer’s sole cost and expense, and may cover the proper operation of the Revo System and how to take reasonable precautions to avoid being injured by the Revo System and, without limitation of the foregoing, LabMinds shall have no liability for any injury or damage arising from the failure of any Customer personnel to take such precautions.
Proprietary and Intellectual Property Rights.
- Copyright, patent rights, trademarks, service marks and any other intellectual property rights in the LabMinds Deliverables or any other items supplied by LabMinds, will remain the sole and exclusive property of LabMinds or its licensors. LabMinds reserves all such rights, and no express or implied licenses or rights are granted. Without limiting the foregoing, LabMinds is and will remain the sole and exclusive owner of all right, title and interest in and to its standard operating procedures, specifications, drawings, and designs, and, if applicable, including any improvements or other inventions relating thereto. Customer agrees to respect all such rights, and to take or permit to be taken no actions which would infringe upon such rights. Customer may not (i) reverse engineer, decompile, hack, disassemble, work around, disable, interfere, decode, copy, modify, distribute or create any derivative or compilation works of the Revo System or redeliver the Revo System using framing or similar technology, (ii) disrupt the integrity or the performance of the Revo System, (iii) allow third parties to use the Revo System or any third-party data contained therein, (iv) access the Revo System in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Revo System, (v) attempt to gain unauthorized access to the Revo System or the related systems or networks, (vi) collect, store or harvest information from the Revo System, (vii) interfere or attempt to interfere with the proper working of the Revo System; (viii) bypass measures used by LabMinds to prevent or restrict access to the Revo System, (ix) violate or attempt to violate the security or authentication measures of the Revo System, or attempt to prove, scan or test the vulnerability of a system or network without proper written authorization from LabMinds, or (x) authorize, permit or encourage any third party to do any of the above. As between Customer and LabMinds, all intellectual property rights in and to the LabMinds Deliverables or any materials, processes, ideas, concepts, techniques, inventions, discoveries, or improvements produced by LabMinds or provided by LabMinds, including any improvements conceived or produced by the Customer, will be the property of LabMinds. In the event the Customer conceives or produces an improvement to the LabMinds technology, the Customer shall promptly disclose such improvement to LabMinds.
- As between Customer and LabMinds, all intellectual property rights in and to the LabMinds Deliverables or any materials, processes, ideas, concepts, techniques, inventions, discoveries, or improvements produced by LabMinds or provided by LabMinds will be the sole and exclusive property of LabMinds.
- The Software consists of certain software and firmware embodied in the Revo System and is used for its operation. LabMinds grants to the Customer a non-exclusive, revocable, non-assignable, and non-transferable license to use the Software only as specifically needed by the Customer to use the Revo System. LabMinds and its licensors own and shall retain all right, title and interest in and to the Software. The aforesaid limited license is subject to the terms and conditions of the manufacturer’s and/or licensor’s license terms, including any end user license agreement, in whatever form (e.g., terms packaged with any third party software products or “click-through” terms) (“Third Party Licenses”). Certain portions of the Software may be subject to open source software licenses, and any applicable open source notices and licenses are available at www.labminds.com/terms-conditions. The Customer will not access the Revo server or any Revo processing systems under any circumstances without prior written approval of LabMinds. Customer will not: (i) access, alter, modify, debug, reverse engineer, decompile, disassemble or decrypt the Software or any part thereof, nor attempt to do any of the foregoing; (ii) create derivative works or make copies of the Software; (iii) use any Software or any portion thereof to develop or market any product or program that is functionally similar to or derivative of the Software; (iv) remove any proprietary or copyright notices located on the Software; (v) remove any of the Software from the Products and/or use the Software independently from the Products or Remote Services; or (vi) distribute or make available the Software to any third party. Customer shall allow LabMinds to update or upgrade the Software at any time in LabMinds’ discretion, or to transfer the Software without Customer’s prior written consent. In the event of a conflict or inconsistency between the terms herein and the applicable Third-Party Licenses in connection with Customer’s use of third party Software, the applicable Third Party Licenses shall prevail.
- The Customer is solely responsible for all Customer Data that Customer provides or makes available to LabMinds. Customer owns Customer Data and grants LabMinds a non-exclusive license to use any Customer Data submitted by Customer to LabMinds necessary for LabMinds to provide Purchased Services or Remote Services to or on behalf of Customer. The Parties acknowledge that Customer Data submitted to LabMinds by Customer may include Customer Data intended to be used only for provision of Purchased Services or Remote Services to the Customer. Customer acknowledges that the Anonymized Process Data that the Revo System utilizes while providing Purchased Services or Remote Services is used to train the LabMinds AI. Customer grants LabMinds an unrestricted, nonexclusive, irrevocable and fully paid license to use the Anonymized Process Data. The Parties agree that LabMinds shall own all LabMinds AI, and that the Customer shall have no interest or right whatsoever in the LabMinds AI. Customer will secure and maintain all rights in data provided to LabMinds by Customer that are necessary for LabMinds to provide the Products or Purchased Services or Remote Services to Customer without violating the rights of any third party or otherwise obligating LabMinds to Customer or to any third party. LabMinds and its licensors do not and will not assume any obligations with respect to Customer Data or other data provided by Customer in connection with Customer’s use of the Product or Purchased Services or Remote Services other than as expressly set forth herein or as required by applicable law. LabMinds, or its third party licensors, may implement reasonable and appropriate measures designed to help Customer secure Customer Data against accidental or unlawful loss, access or disclosure. LabMinds, or its third party licensors, will not share Customer Data supplied by the Customer containing Customer indicia except (i) as necessary to maintain or provide the Purchased Services or Remote Services, (ii) as necessary to comply with the law or a bona fide order of a governmental body, (iii) to provide Customer with support services initiated by Customer, (iv) to investigate fraud, abuse or violations of this Agreement, or (v) to support and investigation personnel.
- The LabMinds Deliverables are provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the LabMinds Deliverables. If Customer is purchasing LabMinds Deliverables on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Customer will not purchase LabMinds Deliverables. The terms “commercial item” “commercial computer software,” “commercial computer software documentation,” and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
- If Customer, Customer’s subcontractors, or any third party provides any suggestions to LabMinds or its affiliates, LabMinds and its affiliates will be entitled to use such suggestions without restriction. Customer hereby irrevocably assigns to LabMinds all right, title, and interest in and to the suggestions and agrees to provide LabMinds any assistance LabMinds requires to document, perfect, and maintain LabMinds’ rights in the suggestions.
Intellectual Property Indemnification.
- (i) LabMinds will defend Customer against any third-party claim brought against Customer alleging that the Revo infringes or misappropriates a third party’s US copyrights, and will pay the amount of any adverse final judgment or settlement or obtain a license or other agreement to use the Revo; (ii) Customer will defend LabMinds, its affiliates, and their respective employees, officers, and directors against any third-party claim alleging that any of the data Customer provides including Customer Data or any Customer-specified Solution infringes or misappropriates a third party’s intellectual property rights, and Customer will pay the amount of any adverse final judgment or settlement; and (iii) LabMinds will not have any obligation or liability under this Section 8.5 arising from (a) infringement by combinations of the Revo and data Customer provides, as applicable, (b) any other product, any third party service or product, software, data, content or method, (c) Customer’s use of a LabMinds’ trademark without LabMinds’ express written consent, (d) Customer’s use of the Revo after LabMinds notifies Customer to stop such use due to a third-party claim, (e) Customer’s redistribution of the Revo to, or use for the benefit of, any third party, or (f) any and all use of any Solution by Customer or any third party. The remedies provided in this Section 8.5 are the sole and exclusive remedies for any third-party claims of infringement or misappropriation of intellectual property rights.
- The obligations under Section 8.5 will apply only if the party seeking defense or indemnity: (i) gives the other party prompt written notice of the claim; (ii) permits the other party to control the defense and settlement of the claim; and (iii) reasonably cooperates with the other party (at the other party’s expense) in the defense and settlement of the claim. In no event will a party agree to any settlement of any claim that involves any commitment, other than the payment of money, without the written consent of the other party.
Limitation of Liability.
8.6.1 LABMINDS SHALL NOT BE LIABLE TO CUSTOMER FOR THIRD PARTY COMPONENTS OR FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES REGARDLESS OF THE CAUSE OF ACTION, ARISING OUT OF, OR IN CONNECTION WITH, THE PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS UNDERTAKEN IN THIS AGREEMENT. TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, IN NO EVENT SHALL LABMINDS’ OR ITS LICENSORS’ AGGREGATE LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY CLAIMS OR DAMAGES ARISING OUT OF OR RELATED LABMINDS’ PRODUCTS OR SERVICES OR ARISING OUT OF, OR IN CONNECTION WITH, THE PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS UNDERTAKEN IN THIS AGREEMENT OR OTHERWISE RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID BY CUSTOMER TO LABMINDS HEREUNDER DURING THE LAST TWELVE (12) MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO SUCH LIABILITY. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
- Customer shall indemnify, defend, and hold harmless each of LabMinds, its parent, subsidiaries, affiliated entities, and divisions, and its or their respective successors, assigns, officers, directors, shareholders, subcontractors, agents, employees, and representatives (each, a “Customer-Indemnified Party”) from and against, and in respect of, any and all actions, claims, suits, judgments, damages, liabilities, losses, settlement payments, penalties, costs, and expenses (including, without limitation, attorneys’ fees) of every kind whatsoever (collectively, “Damages”) arising out of, from, or in connection with any: (i) breach by Customer of any term or provision set forth herein, the Agreement, Documentation or Acceptable Use Policy, (ii) damages arising out of or relating to Customer’s receipt, handling, storage, possession, transportation, disposal, purchase, resale, or use of any Product or service or output of the Product whether used singly or in combination with other products (including, but not limited to, to use of solutions or other chemicals which are part of Free Form Solutions); or (iii) wrongful or negligent act or omission by any of Customer or its officers, directors, managers, members, shareholders, agents, servants, employees, and representatives; provided, that this section will not obligate Customer to indemnify any Customer-Indemnified Party for any portion of damages directly attributable to, and directly caused by, the gross negligence of a Customer-Indemnified Party. Customer may not settle any such claim against a Customer-Indemnified Party without the prior written consent of such Customer-Indemnified Party. If Customer elects not to assume such defense, the Customer-Indemnified Party may elect to do so and Customer shall pay all costs and expenses of counsel selected by such Customer-Indemnified Party in connection with such defense. Any legal counsel appointed by Customer to defend such a claim must be experienced in the type of litigation involved and must be reasonably satisfactory to the Customer-Indemnified Party. Customer and each Customer-Indemnified Party shall cooperate fully in connection with all matters related to the defense of any such claim. Customer will reimburse LabMinds for reasonable attorneys’ fees, as well as its employees’ and contractors’ time and materials spent responding to any third party subpoena or other compulsory legal order or process associated with third party claims above at Labminds’ then-current hourly rates.
- Customer represents and warrants that it is familiar with the characteristics, qualities and uses of the Revo System and acknowledges that there may be hazards associated with the possession, operation, and use of the Revo System or the contents and output of such Revo System. Customer is responsible for instructing and warning its employees and all other persons who may come into contact with the Revo System regarding such hazards. Customer is solely responsible for conducting all necessary testing and verification, including for fitness for the intended purpose, prior to the use of Revo System. Customer is also responsible for all conditions existing at Customer’s location where the Revo System is located and for taking all necessary safety measures to prevent, contain, alleviate, eliminate and/or remediate any of the aforementioned hazards.
- The Revo System is designed, developed, and/or manufactured as contemplated for general lab use by knowledgeable and experienced personnel, as described in the Documentation. The Revo System is not designed for use in any other circumstances (“Other Uses”), including, without limitation, any circumstances that require high-level safety precautions, that may involve catastrophic property damage or that could lead directly to death or severe personal injury. LabMinds disclaims any liability for the use of the Revo System in Other Uses. Parties using the Revo System for Other Uses do so at their own risk and, to the fullest extent permitted under law, agree to fully indemnify and hold harmless LabMinds for any liabilities arising in connection with such improper use.
Additional Terms Applicable to Supply of Consumables.
- The Consumables shipments will be delivered to Customer’s approved facility. Customer shall be solely responsible for re-stocking the Revo with Consumables in accordance with the Documentation and for any shortages or expired Consumables.
- In connection with Vendor Managed Inventory, the Revo System requires either a period of time to develop a forecast, or a forecast from the Customer, before it is able to utilize historical volume and data regarding new Consumables.
- LabMinds will send Customer a monthly inventory report. The monthly inventory report contains information regarding order points and order quantities for Customer to review and ensure that Consumables do not expire prior to Customer’s expected use of the Consumables.
- Consumables prices shall be at LabMinds’ then current rates. LabMinds reserves the right to change Consumables specifications, packaging and/or design at its sole discretion. LabMinds shall arrange for shipment of the Consumables to the address agreed upon with the Customer using a carrier selected by LabMinds or agreed to by LabMinds. LabMinds shall invoice Customer for all costs of shipping and insurance. LabMinds will not be responsible for delays in shipment. Risk of loss of and damage to the Consumables shall pass to the Customer at the place of shipment. Title to the Consumables shall pass upon the earlier to occur of (i) payment to LabMinds or (ii) consumption by Customer.
- The obligations of LabMinds to perform hereunder are subject to the strict observance by Customer of the credit or payment terms established by LabMinds in its sole discretion. LabMinds reserves the right to change its credit, payment and shipping terms upon advance notice to Customer and may require payment in advance as a condition of shipment.
- LabMinds reserves the right, among other remedies, to terminate any Consumables Shipment, suspend deliveries of Consumables or to recall any Consumables Shipment in transit, retake the same and/or repossess all Consumables if at any time in LabMinds’ sole discretion Customer’s creditworthiness is impaired or in the event Customer fails to make a payment when due.
- Any Consumable returns must be authorized in advance by LabMinds and a Return Authorization (“RA”) form and RA number must be obtained from LabMinds and included with any return. All authorized returns must be shipped, freight paid, to the destination specified by LabMinds. Customer shall bear the risk of loss for returned Consumables until accepted by LabMinds at LabMinds’ specified destination. Consumables returned shipped freight collect will not be accepted. Consumables returned to LabMinds without a RA number and form shall not constitute an authorized return and no credit shall be given. LabMinds shall make one attempt to return an unauthorized Consumables return and thereafter such Consumables shall be sold or destroyed at LabMinds’ sole discretion. All returned Consumables may be subject to a restocking charge. LabMinds will invoice or credit Customer for appropriate adjustments resulting from returns, and Customer may not make any deduction or offset from invoiced amounts except upon receipt of such adjustments or offset in writing from LabMinds.
- LabMinds shall not be liable in any way for failure or delay in supplying Consumables resulting from any cause or circumstance beyond its reasonable control. In no event will LabMinds be required to purchase any Consumables in the marketplace to meet its obligations hereunder or be required to purchase materials and/or services necessary upon unreasonable terms and/or at unreasonable prices. During any shortage of Consumables LabMinds may apportion and allocate Consumables among its Customers as LabMinds deems fit in its sole discretion. LabMinds reserves the right to cancel, without liability, any order, the shipment of which is or may be delayed by reason of Force Majeure.
- In the event Customer desires to export any LabMinds Deliverables, it is the Customer’s responsibility to obtain all such consents and licenses as may be required from time to time under the laws and regulations of the United States and under the laws and regulations of any other country that may affect or regulate import or export since importing or exporting and re-exporting contrary to such laws and regulations is expressly prohibited. LabMinds Deliverables purchased or received hereunder, which may include technology and software, are subject to the customs and export control laws, restrictions, regulations, and orders of the United States of America and may also be subject to the customs and export laws and regulations of the country in which the products are manufactured and/or received.
- Customer represents and warrants that it shall not: (i) export, or transfer for the purpose of re-export, any LabMinds Deliverables to any prohibited or embargoed country or to any denied, blocked, or designated person or entity in violation of applicable law; or (ii) transfer, by electronic transmission or otherwise, any software or technology to a foreign national or a foreign destination in violation of applicable law. Customer represents and warrants that it is not on the Denied Persons, Specially Designated Nationals, or Debarred Persons List, or any equivalent list maintained by a foreign regulatory authority, and is not otherwise prohibited by law from purchasing the LabMinds Deliverables hereunder.
- Customer may only use the LabMinds’ trademarks with LabMinds’ prior written permission and in accordance with LabMinds’ trademark use guidelines. Customer will not imply any relationship or affiliation between LabMinds and Customer except as expressly permitted herein.
- Customer shall not disclose LabMinds’ Confidential Information. Customer will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of LabMinds’ Confidential Information, including, at a minimum, those measures Customer takes to protect its own confidential information of a similar nature. Customer will not issue any press release or make any other public communication with respect to Customer’s use of LabMinds Deliverables without LabMinds’ written consent.
- All communications and notices made or given pursuant to these terms and conditions must be in the English language.
- Customer shall not assign or transfer the Agreement or the rights and obligations set forth herein without the prior written consent of LabMinds. LabMinds may freely assign the Agreement without consent. LabMinds reserves the right to provide the services that are set forth in this Agreement through authorized LabMinds dealers and authorized LabMinds service companies.
- LabMinds may communicate with Customer by email for all matters relating to the operation and maintenance of the Products, provision of Purchased Services, Remote Services, and orders for Products, Consumables, parts and Purchased Services. Notwithstanding the foregoing, any formal notices issued by either party hereunder, shall be in writing, and sent by certified mail, postage prepaid, return receipt requested or commercially acceptable overnight delivery service. Notices shall be addressed to the parties at their respective addresses set forth on the applicable Quote and/or Invoice, as applicable, or at such other address as specified in writing by either party from time to time and shall be deemed given upon receipt or refusal.
- LabMinds will not be liable for any delay or for failure to perform its obligations hereunder resulting from any cause beyond LabMinds’ reasonable control (a “Force Majeure”), including, but not limited to: Customer’s failure to timely supply LabMinds with necessary data and information if in fact Customer has agreed to supply any such data or information to LabMinds; any changes in any such data or information made by Customer; acts of God; Internet blackouts or brownouts; severe weather; fire; explosions; floods; strikes; work stoppages; slowdowns or other industrial disputes; accidents; riots or civil disturbances; acts of war, sabotage or terrorism; dangerous conditions which present a threat to the safety or health of LabMinds personnel; acts of government; inability to obtain any license or consent necessary in respect of any third party software; delays by suppliers; shortages; inability to obtain necessary labor, power, fuel, energy, materials, supplies, equipment, machinery, or manufacturing facilities at reasonable prices from regular sources; machinery breakage; failure of a communications or internet provider; endemic or pandemic; or transportation delays. For the avoidance of doubt, no Force Majeure shall extend the Standard Warranty Period.
- The Agreement, including all disputes arising out of or related hereto, shall be governed by the laws of the State of New York, United States of America without regards to principles on conflicts of law that would require the application of any other law. Any litigation concerning the subject matter of the Agreement shall be brought in the New York federal or state courts of competent and proper jurisdiction and venue. The parties agree to exclude, in its entirety, the application of the United Nations Convention on Contracts for the International Sale of Goods.
- By referencing LabMinds’ Quote, receipt/use of LabMinds’ products or services, or payment of LabMinds’ invoice, Customer agrees that the terms and conditions of the applicable Quote and/or invoice supersede any terms and conditions in Customer’s purchase order. If Customer’s purchase order contains additional or different terms and conditions, those terms and conditions are rejected since LabMinds’ Quote and/or invoice expressly limits acceptance to the terms of the Quote and/or invoice. Unless otherwise explicitly agreed in writing by the parties, all orders placed by Customer are subject to the terms and conditions set forth in the Quote and/or invoice irrespective of the means by which the orders are placed or the form used.
- The Agreement shall constitute the complete agreement between the parties with respect to its subject matter and supersedes all representations, warranties, promises, purchase orders, and proposals, whether they be oral or written, between the parties. The Agreement may be modified only by written instrument signed by the parties. No terms or conditions hereof shall be deemed waived and no breach or default excused unless such waiver or excuse is in writing and signed by the party to be charged.
- Upon reasonable request by LabMinds, Customer shall cooperate and provide LabMinds with reasonable assistance with marketing activities undertaken by LabMinds in connection with the Products, Purchased Services and Remote Services provided to Customer under the Agreement. Such marketing assistance may include providing references, use of Customer’s name and trademark and cooperating in the issuance of press releases.
- LabMinds does not require and does not want to be provided with any Customer personal data in connection with providing LabMinds’ Products and Services to Customer. Customer agrees that it will not provide any Customer personal data to LabMinds unless the parties execute an amendment to the Agreement that specifically addresses protection and receipt of Customer personal data.
- LabMinds requires high ethical standards in its business conduct and has adopted a Code of Conduct and Business Ethics which can be found on LabMinds’ website.
- In the event that any one or more provisions contained in the Agreement should be held to be unenforceable, its unenforceability shall not affect any other provisions of the Agreement. The unenforceable provision shall be replaced by an enforceable provision most nearly effecting the intention of the parties.
- The headings in the Agreement are for convenience only, and shall not constitute a part of or be referred to in interpreting the Agreement.
- Terms that by their nature should survive termination or expiration of the Agreement shall survive including, but not limited to, provisions concerning confidentiality, limitation of liability, limitation of warranty and indemnification.