General Terms & Conditions
“Acceptable Use Policy” is LabMinds’ then current published written policy governing proper use of its Cloud 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. “Accessory” and
“Accessories” means the accessory products for use in connection with the Machine, as may be further identified on the Order Agreement.
“Agreement” means these General Terms and Conditions, Order Agreement, Invoice, and any other attachments thereto.
“Anonymized Process Data” means data gained from the process of a Revo SOP being run. This includes the inputs as well as the sensor readings during the process. Anonymized Process Data is data in which all contextual data is removed that might allow detection of where the data was generated, or Revo System activities are taking place while the data was generated.
“Approved Third Party Installation Company” means a third party installation company approved in writing by LabMinds.
“Cloud 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.
“Cloud Services Term” means the period of time that Customer will receive Cloud Services.
“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, Cloud 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: (i) is or becomes publicly available without breach of these General Terms and Conditions; (ii) can be shown by documentation to have been known to Customer at the time of Customer’s receipt from LabMinds; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by Customer’s records to have been independently developed by Customer without reference to Confidential Information. “Consumables” means components of the Revo offered by LabMinds that due to their nature are used up in a predictable manner. Consumables are SOP Consumables, or Non-SOP Consumables as further defined herein.
“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 SOP 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” or “Customers” means any person, persons, entity or entities purchasing, renting and/or using products and/or services provided by LabMinds.
“Customer Data” means non-public data belonging to a Customer including: (i) Customer assigned SOP names and the associated Customer recipes, (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 Cloud Services.
“Documentation” means the published user documentation then available as provided from time to time by LabMinds generally to its customers. “Extended Warranty” means LabMinds’ extended warranty services as set forth in Section 5.2.
“Force Majeure” means a force majeure event listed in Section 11.8.
“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.
“General Terms and Conditions” means these terms and conditions applicable to LabMinds’ products and services. “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” means LabMinds’ service which includes: applicable warranty services (including Warranty Parts and labor), regular/periodic Preventative Maintenance and Calibration, and Hardware Upgrades. “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 SOP to achieve various targets such as a specific pH value.
“LabMinds Deliverables” means LabMinds’ Products, Warranty Parts, other non-warranty parts, Consumables, Solutions, Purchased Services, Software and Cloud 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-SOP Consumables” means Consumables which are components of the Revo but are not consumed during a SOP as listed by LabMinds in its then current list of Non-SOP Consumables.
“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.
“Order Agreement” means LabMinds’ Product and Services Purchase Agreement, Product Rental and Services Agreement, or Product Installment Sale and Services Agreement.
“Platform Solution” means a solution where the SOP 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.
“Purchased Services” means all of the paid services (except for Cloud Services) associated with Products offered by LabMinds or its subcontractors including the Instrument Care Program, Extended Warranty Plan, Preventative Maintenance and Calibration, Site Visits, and other mutually agreed upon services.
“Remote Support” means LabMinds’ remote support of a Machine as necessary to service and maintain the Machine through the Cloud Services. “Rental” means the rental terms set forth in Section 9.
“Revo” means the LabMinds Revo machine identified on the Order Agreement and/or on the Invoice.
“Revo System” means the Machine utilizing the Cloud Services. “Services” means the LabMinds’ services listed in the applicable Order Agreement. “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 6.3.
“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 SOP. Solutions are Custom Solutions, Free Form Solutions, or Platform Solutions (as further defined herein).
“SOP” means a standard operating procedure run by the Machine in conjunction with the utilization of the Cloud Services. SOP, includes those that run when the Machine, working with the Cloud Services, produces a Solution or when the Machine, working with the Cloud Services, is performing cleaning, routine maintenance or other similar activities.
“SOP Consumable” means components of the Revo or materials that are consumed in connection with a SOP as listed by LabMinds in its then current list of SOP Consumables. “Standard Warranty” means the standard warranty set forth in Section 5.1.
“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, SOP Consumables necessary for the Revo to continue to fulfill Customer’s orders of Solutions based upon Customer’s historical volume associated with each Solution.
“Warranty Parts” means any parts that are used to replace defective parts in a Product covered by the Standard Warranty, Extended Warranty Plan or the Instrument Care Program, as applicable.
2. Purchase and Sale of Products and Services
2.1 LabMinds shall sell and the Customer shall purchase the products and services upon the terms indicated in the applicable Order Agreement and/or Invoice.
2.2 LabMinds shall arrange for shipment of the purchased products 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 products shall pass to the Customer at the time and place of shipment. For Consumables shipment terms see Section 10.
2.3 Title to purchased Products, Warranty Parts, and non-warranty parts (but not the Software and Cloud Services) passes to Customer upon receipt of full payment of the full purchase price or, in the case of an Installment Sale, upon receipt of the Purchase Buyout Value after all Product Installment Payments have been made. Title to rented Products remains with LabMinds. Title to Consumables shall pass in accordance with Section 10.
2.4 Customer shall provide LabMinds with reasonable access to Customer facilities at all reasonable times in order for LabMinds to provide Instrument Setup and Purchased Services. Customer, at its own expense, shall make available to LabMinds or LabMinds’ subcontractors, the assistance of appropriate staff that are familiar with the Customer’s use of the Product. Customer will also provide LabMinds or LabMinds’ subcontractors or Approved Third Party Installation Company with adequate working space, a staging area, safety equipment where necessary, and access to the internet.
2.5 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.
2.6 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 and/or cancellation fees may apply.
2.7 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 email), 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 terms or conditions different from the Agreement.
2.8 LabMinds reserves the right to discontinue any service on older versions of the Machine.
3 . Cloud Services
3.1 During the Cloud Services Term, LabMinds grants Customer and its subcontractors approved in writing by LabMinds, the right to access and use the Cloud Services as further described herein. LabMinds reserves all other rights. Customer will not use the Cloud Services in any manner or for any purpose other than as expressly permitted herein. Customer will use the Cloud Services in accordance with all laws, rules and regulations applicable to Customer’s use of the Cloud Services.
3.2 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 Cloud Services or redeliver the Cloud Services using framing or similar technology, (ii) disrupt the integrity or the performance of the Cloud Services, (iii) allow third parties to use the Cloud Services or any third-party data contained therein, (iv) access the Cloud Services in order to build a competitive Cloud Service or service or copy any ideas, features, functions or graphics of the Cloud Services, (v) attempt to gain unauthorized access to the Cloud Services or the related systems or networks, (vi) collect, store or harvest information from the Cloud Services, (vii) interfere or attempt to interfere with the proper working of the Cloud Services, (viii) bypass measures used by LabMinds to prevent or restrict access to the Cloud 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, tamper with any mechanism that meters Customer’s use of the Cloud Services, (xi) rent, lease, lend, resell, transfer, or host the Cloud 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.
3.3 Customer is responsible for its employees’ and contractors’ use of the Cloud 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.
3.4 Customer is responsible for maintaining the confidentiality of any non-public authentication credentials associated with Customer’s use of the Cloud Services which is for internal use only and Customer will not sell, transfer or sublicense them to any other entity or person.
3.5 Security and Data Privacy. 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 Cloud 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.
3.6 LabMinds grants to the Customer a non-exclusive, revocable, non-assignable, and nontransferable license to use the Software only as specifically needed by the Customer to use the Cloud Services.
3.7 Unless otherwise set forth in the Order Agreement and subject to Section 3.9 below, Customer’s Cloud Services Term will automatically renew for consecutive twelve (12) month terms. Fees for renewal terms are subject to change at LabMinds’ discretion.
3.8 Cloud Services is subject to downtime for maintenance, outages, system updates, and similar types of occurrences.
3.9 LabMinds may suspend or terminate Customer’s use of the Cloud 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 subject LabMinds, our affiliates, our 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) if LabMinds’ relationship with a third-party licensor who provides software, services or other technology in connection with LabMinds’ provision of Cloud Services expires, terminates or requires LabMinds to change the way LabMinds provides the software or other technology as part of the Cloud Services; or (x) in order to comply with the law or requests of governmental entities.
3.10 If LabMinds suspends or terminates Customer’s Cloud Services or in the event of expiration of Customer’s Cloud Services, Customer’s right to access or use any portion or all of the Cloud 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 Cloud Service 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.
4 . Price and Payment
4.1 LabMinds shall sell and the Customer shall purchase the products and services at the prices/fees and upon the payment terms indicated in the applicable Order Agreement and/or Invoice.
4.2 Payments for products and services which require an invoice from LabMinds shall be made by Customer within thirty (30) days of the date of invoice.
4.3 Payments for services that are due on a monthly basis or are due on a date certain must be made on that date and will not be regularly invoiced.
4.4 Except as set forth in Section 4.5, Section 4.6 or Section 4.7, all SOP 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.
4.5 All SOP 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.
4.6 All Non-SOP Consumables will be invoiced by LabMinds separately with payment due within thirty (30) days of the date of invoice.
4.7 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.
4.8 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
4.9 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 Cloud Services) may be terminated or suspended by LabMinds without further notice. 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 LabMinds by Customer.
4.10 Customer shall pay all taxes (including sales taxes, use taxes, VAT, duties and other taxes of all kinds), rates or governmental levies, which are payable in connection with the sale or supply of product or services, excluding taxes on LabMinds’ income. For international transactions, all payments shall be made free of any tax withholding. In the event that any tax withholding is due on payments, such tax shall be an additional cost for the Customer who shall promptly provide LabMinds with a certificate of all tax paid. Customer shall pay all transportation, customs, duties, insurance and freight charges.
4.11 Customer hereby grants a purchase money security interest in the Products sold hereunder. In the event of default by Customer of any of its obligations to LabMinds, LabMinds shall have the right to repossess the Products sold hereunder without liability to Customer. In addition, Customer hereby authorizes LabMinds to file one or more financing statements in the applicable public filing office and to use a copy of the Agreement as an exhibit to any financing statement. Upon request of LabMinds, Customer agrees to promptly execute such other instruments as LabMinds desires to perfect or maintain its security interest.
5 . Standard Product and Service Warranty
5.1 LabMinds warrants to Customer (but not to any successor or assign) that, for a period of twelve (12) months from the date of Revo shipment (the “Standard Warranty Period”), under normal use and operating conditions, the Revo will operate in material conformance with the specifications set forth in the Documentation (“Standard Warranty”). Notwithstanding the foregoing, any third party manufactured component or any third party software or software service (collectively “Third Party Components”) incorporated in or necessary to use the Revo is warranted solely by the applicable manufacturer or licensor, and LabMinds shall pass through, to the extent permitted, the manufacturer’s and/or licensor’s warranties. In the event of breach of the warranty during the Standard Warranty Period or any Extended Warranty Period (as defined below), if applicable, (a “Warranty Failure”), and provided that Customer reports the problem to LabMinds during the Standard Warranty Period or Extended Warranty Period, if applicable, LabMinds’ sole and exclusive liability, and Customer’s sole and exclusive remedy, shall be that LabMinds shall provide replacement Warranty Parts (which specifically excludes Consumables), travel and labor required to repair or replace the Revo.
5.2 After the expiration of the Standard Warranty Period, Customer will receive the warranty services outlined in Section 5.1 (“Extended Warranty”) as part of the Instrument Care Program during the Instrument Care Program Term.
5.3 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’ reperformance of the Purchased Services.
5.4 LabMinds warrants that the Cloud Services will meet in all material aspects the service description set forth in the Documentation during the Cloud Services Term. Customer’s sole and exclusive remedy for a breach of this warranty shall be that Customer may cancel the Cloud Services and receive a refund of any prepaid Cloud Service Fees.
5.5 Proper use of the Revo System depends, and is conditioned, upon purchasing of the Cloud Services and Instrument Care Program. Accordingly, upon termination or expiration of Cloud Services and/ or the Instrument Care Program, LabMinds no longer supports the Products and Customer’s continued use of the Products is at Customer’s own risk.
5.6 The Standard Warranty or Extended Warranty set forth herein will be void and not apply to defects or failures caused by: (i) issues as outlined in Section 5.9, (ii) failure to use, regularly maintain and care for the Products in accordance with the Documentation or the terms herein; (iii) Customer or its employees’ or agents’ negligence or accident; (iv) the Products not having been installed by LabMinds or by a LabMinds’ Approved Third Party Installation Company; (v) modification of the Products by anyone except LabMinds or if the failure is caused by use of attachments, accessories, consumables, parts or supplies not supplied or approved in writing by LabMinds; (vi) use of any parts that are not furnished by LabMinds; (vii) Customer or third party personnel; (viii) recipes or parts used for a Free Form Solution, or (ix) Customer’s use of Consumables from a source other than LabMinds. Any modifications (including unauthorized repairs) to any Product made by Customer or any third party that are not permitted by the Documentation or authorized in writing by LabMinds void LabMinds’ warranty obligations with respect to the modified Product. Customer must notify LabMinds of defective or non-conforming Products within the Standard Warranty Period or Extended Warranty coverage period, if applicable, specified herein and Customer’s failure to give notice of any claim within the applicable time period shall be deemed an absolute and unconditional waiver of such claim. The liability of LabMinds under the Standard Warranty or Extended Warranty, if applicable, set forth herein will not extend to any Products that are abused, altered, improperly stored, or misused by Customer or any other persons or entities or that become defective or non-conforming through the actions or inaction of Customer or any other person or entities, including through the combination with other solutions or products. Customer will have the obligation of substantiating the chain of custody of the Revo following delivery of the Revo to Customer. 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 or provide the warranty set forth herein 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.
5.8 The Cloud Service warranty is subject to the following limitations: (i) the limited warranty does not cover problems caused by accident, abuse or use of the Cloud 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 11.8 below) causes; and (iii) the limited warranty does not apply to problems caused by Customer’s failure to meet minimum system requirements.
5.9 LabMinds’ ability to perform Purchased Services is subject to Customer’s cooperation, including the provision of adequate permanent internet connection to the Product. LabMinds shall have no liability for a Product, a Revo System or service failure 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.
5.10 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.
5.11 Customer acknowledges and agrees that all use of Solutions by Customer or any third party shall be at Customer’s sole and exclusive risk.
5.12 Customer acknowledges that any and all Warranty Parts are provided “as is,” without warranty.
5.13 EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 5 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.
5.14 Customer acknowledges that it is responsible for: (i) reviewing the Documentation included with the Products, attached to the Order Agreement, or otherwise made available by LabMinds, (ii) reviewing the Product’s warning labels, 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.
6 . Proprietary and Intellectual Property Rights
6.1 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.
6.2 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.
6.3 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 nontransferable 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. 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 Cloud 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.
6.4 The Customer is solely responsible for all Customer Data that Customer provides or makes available to LabMinds. Customer grants LabMinds a non-exclusive license to use any Customer Data submitted by Customer to LabMinds necessary for LabMinds to provide Purchased Services or Cloud 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 Cloud Services to the Customer. Customer acknowledges that the Anonymized Process Data that LabMinds generates while providing Purchased Services or Cloud Services to the Customer can be used in training the LabMinds AI, at the sole discretion of LabMinds. Customer grants LabMinds an unrestricted, nonexclusive, irrevocable, and fully paid license to use and distribute 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 Cloud 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 Cloud 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 use Customer Data supplied by the Customer containing Customer indicia except (i) as necessary to maintain or provide the Purchased Services or Cloud 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.
6.5 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. 6.4 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.
7 . Intellectual Property Indemnification.
7.1 (i) LabMinds will defend Customer against any third-party claim brought against Customer alleging that the Revo infringes or misappropriates a third party’s intellectual property rights, 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 Customerspecified 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 7 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 7 are the sole and exclusive remedies for any third-party claims of infringement or misappropriation of intellectual property rights.
7.2 The obligations under Section 7 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.
8. Limitation of Liability
8.1 IN NO EVENT WILL LABMINDS HAVE ANY LIABILITY IN CONNECTION WITH THIRD PARTY COMPONENTS OR EVENTS OUT OF ITS CONTROL INCLUDING, WITHOUT LIMITATION, WATER SUPPLY ISSUES, DRAINAGE ISSUES, INTERNET OR POWER ISSUES OR ANY FORCE MAJEURE EVENT. IN NO EVENT WILL LABMINDS OR ITS LICENSORS HAVE ANY OBLIGATION OR LIABILITY FOR ANY EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUE, BUSINESS, USE, DATA, PRODUCTIVITY, OR GOODWILL OR COST OF CAPITAL, RECALL, OR COVER), INABILITY TO USE THE LABMINDS DELIVERABLES OR TERMINATION OR SUSPENSION OF THIS AGREEMENT, DISCONTINUATION OF ANY OR ALL OF THE LABMINDS DELIVERABLES UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE LABMINDS DELIVERABLES FOR ANY REASON, THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, OR SERVICES; ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S USE OF OR ACCESS TO THE LABMINDS DELIVERABLES ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE DATA, CUSTOMER’S USE OF THE LABMINDS DELIVERABLES WHETHER BASED ON CONTRACT (INCLUDING, WITHOUT LIMITATION, WARRANTY), TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OR FORM OF ACTION, WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. THE TOTAL LIABILITY OF LABMINDS (INCLUDING ITS SUBCONTRACTORS, LICENSORS AND AGENTS), IF ANY, FOR DAMAGES SHALL NOT EXCEED THE FOLLOWING AS APPLICABLE (A) IF THE CLAIM RELATES TO ANY PRODUCT, SOFTWARE, CONSUMABLE, PART, WARRANTY PART, OR SOLUTION, THE FEES PAID BY CUSTOMER FOR THE APPLICABLE UNIT OF PRODUCT, SOFTWARE, CONSUMABLE, PART, WARRANTY PART, OR SOLUTION TO WHICH THE CLAIM RELATES; (B) IF THE CLAIM RELATES TO SERVICES OTHER THAN CLOUD SERVICES OR THE INSTRUMENT CARE PROGRAM, THE FEES PAID BY CUSTOMER FOR THE PARTICULAR SERVICE TO WHICH THE CLAIM RELATES AND (C) FOR CLOUD SERVICES OR THE INSTRUMENT CARE PROGRAM, THE CLOUD SERVICES FEES OR INSTRUMENT CARE PROGRAM FEES PAID BY CUSTOMER TO LABMINDS AS APPLICABLE IN THE TWELVE (12) MONTHS PRECEDING THE OCCURANCE TO WHICH THE CLAIM RELATES. IN THE EVENT THAT A COURT OF COMPETENT JURISDICTION AND VENUE DETERMINES LABMINDS TO BE LIABLE FOR BODILY INJURY, DEATH OR DAMAGE TO TANGIBLE PROPERTY, IN NO EVENT SHALL LABMINDS’ LIABILITY FOR SUCH BODILY INJURY, DEATH OR DAMAGE TO TANGIBLE PROPERTY EXCEED THE AMOUNTS ACTUALLY RECOVERED BY LABMINDS FROM ITS INSURERS WITH RESPECT TO THE INCIDENT IN QUESTION. LABMINDS SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR EQUIPMENT, PRODUCTS, SOFTWARE, CONSUMABLES OR SERVICES SUPPLIED BY PERSONS OTHER THAN LABMINDS, INCLUDING, BUT NOT LIMITED TO, NETWORK PROVIDERS OR FOR USE OF LABMINDS DELIVERABLES WITH ATTACHMENTS, ACCESSORIES, MATERIALS, OR SUPPLIES NOT SUPPLIED OR APPROVED BY LABMINDS, OR FOR MODIFICATIONS TO ANY LABMINDS DELIVERABLES BY PERSONS OTHER THAN LABMINDS PERSONNEL.
8.2 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 CustomerIndemnified 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 our 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.
8.3 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.
8.4 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.
9 . Additional Terms Applicable to Rentals or Installment Sales
9.1 The Products will be delivered to the 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.
9.2 At the end of the Rental Term, if no purchase of the Product or extension of the Rental Term is made by the Customer prior to such time, 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 Order Agreement, and/or Invoice. 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 4.
9.3 At the end of the Rental Term, so long as Customer is not in breach of this Agreement, Customer may elect to purchase the Revo by paying to LabMinds the Product’s then current buyout value (“Purchase Buyout Value”) determined by LabMinds and agreed to by Customer or to extend the Rental Term at a price determined by LabMinds and agreed to by the Customer.
9.4 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 relevant Order Agreement and/or Invoice 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.
9.5 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.
9.6 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 Effective Date and thereafter immediately upon request.
9.7 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.
10 . Additional Terms Applicable to Supply of Consumables
10.1 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.
10.2. 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 SOP Consumables.
10.3 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.
10.4 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.
10.5 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.
10.6 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.
10.7 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 (as hereinafter defined).
11 . General
11.1 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.
11.2 Customer represents and warrants that it shall not: (i) export, or transfer for the purpose of reexport, 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.
11.3 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.
11.4 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.
11.5 All communications and notices made or given pursuant to these terms and conditions must be in the English language.
11.6 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.
11.7 LabMinds may communicate with Customer by email for all matters relating to the operation and maintenance of the Products, provision of Purchased Services, Cloud 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 Order Agreement 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.
11.8 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; or transportation delays. For the avoidance of doubt, no Force Majeure shall extend the Standard Warranty Period.
11.9 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.
11.10 The Agreement shall constitute the complete agreement between the parties with respect to its subject matter and supersedes all representations, warranties, promises, quotes and proposals, whether they be oral or written, between the parties. Any terms and conditions set forth in any purchase order or letter other than the Agreement or in Customer’s acceptance of the Agreement shall be without effect. 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 Agreement irrespective of the means by which the orders are placed or the form used. If there is any conflict or inconsistency between any provision of these General Terms and Conditions, the Order Agreement and any other attachment thereto, the following order of precedence prevails: (i) Order Agreement, (ii) General Terms and Conditions, and (iii) attachments. 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.
11.11 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 Cloud Services provided to Customer under this Agreement. Such marketing assistance may include providing references and cooperating in the issuance of press releases. It is understood that LabMinds shall obtain Customer’s prior approval, which approval shall not be unreasonably withheld, conditioned, or delayed, before using Customer’s name in any marketing material.
11.12 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.
11.13 The headings in the Agreement are for convenience only, and shall not constitute a part of or be referred to in interpreting the Agreement.
11.14 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
Version: November 6th 2019