GENERAL TERMS AND CONDITIONS
“Accessory” and “Accessories” means the accessory products for use in connection with the Product, as identified on the Quote.
“Agreement” means these General Terms and Conditions, the Quote and any other attachments thereto.
“Customer” or “Customers” means any person, persons, entity or entities purchasing Products and Services from LabMinds.
“Customer Data” is defined as all customer data which is created, generated, provided, or made available to LabMinds through use of the Subscription Services or other LabMinds products.
“Customer Specific Data” is defined as Customer Data which (i) contains information which identifies Customer by name, (ii) Customer’s naming conventions, or (iii) identifies Customer’s organizational structure or individual employees or contractors of Customer.
“Data” means Customer Data and Customer Specific Data.
“Documentation” means the information included in the “Revo User Manual” or other Product specific user manual published by LabMinds.
“Free Form Order” means an order for chemicals, which are not part of a standard, pre-selected, chemical platform solution, but instead are chemicals that customers select in quantities and combinations at their discretion. LabMinds shall have no liability whatsoever for customers’ use of chemicals received from a Free Form Order, which shall be used at customers’ sole risk.
“Invoice” means the document created by LabMinds to invoice the fees owed to LabMinds which these General Terms and Conditions may be attached and are incorporated by reference.
“LabMinds” means LabMinds, Inc., a Delaware corporation including its parent company and affiliates.
“Product” and “Products” means Revo, its Accessories and the Software required to operate the Revo system and other products made available by LabMinds to its customers.
“Purchased Services” means all of the paid services associated with Products offered by LabMinds or its subcontractors as may be listed in a statement of work, Quote and/or Invoice.
“Quote” means the document created by LabMinds setting forth the pricing and related terms applicable to the Products to which these General Terms and Conditions may be attached and are incorporated by reference.
“Revo” means the LabMinds Revo identified on the Quote and on the Invoice.
“Service” or “Services” means Purchased Services, Warranty and Service Plan and Subscription Services.
“Warranty and Service Plan” means the warranty and service plan as described in the Warranty and Service Plan documentation.
“Wear Parts” means any Revo parts identified as wear parts on the Warranty and Service Plan.
2.PURCHASE AND SALE OF PRODUCTS AND SERVICES
2.1 LabMinds shall sell and the Customer shall purchase the Products and Services in the quantities and at the prices indicated on the applicable Quote or Invoice.
2.2 LabMinds shall arrange for shipment of the Products to the Customer’s premises, using a carrier selected by LabMinds and 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 upon delivery to the common carrier by LabMinds (as applicable). Title to Products passes to Customer upon receipt of full payment of the Invoice by LabMinds. Customer shall immediately inspect all deliveries for shipping damage upon receipt. If any external damage is noticed, Customer shall accept the shipment only after the driver has noted the damage on both carrier’s and Customer’s copies of the delivery receipt and Customer has requested an inspection by the carrier. Customer shall keep all containers and packing material for inspection. Customer shall promptly inspect all shipments for concealed shipping damage, defects, or shortages, notify LabMinds of any such damage, defect, or shortage, and cooperate with LabMinds in arranging an inspection by the carrier and the filing of a freight claim as applicable; provided that on all sales where Customer arranges transportation, in the event of loss or damage in transit, Customer shall file its own claim with the carrier. With respect to shipping damage, Customer must contact LabMinds to request inspection within twenty-four (24) hours of delivery or unconditionally waive any right to make any claim relating to damaged Products, including, without limitation, under the warranty set forth herein. With respect to other claims, Customer’s failure to notify LabMinds within thirty (30) days of delivery (or Customer’s non-receipt the Products in the case of non-delivery) of defects or shortages reasonably discoverable upon proper inspection will be deemed an unconditional waiver of any right to make any claim relating to the defective or missing Products, including, without limitation, under the warranty set forth herein.
2.3 Customer shall provide LabMinds with reasonable access to information relating to the Product and Customer’s use of the Product, and (if Purchased Services are provided) to Customer facilities at all reasonable times in order for LabMinds to provide the applicable Services. Customer, at its own expense, shall make available to LabMinds the assistance of appropriate staff who are familiar with the Customer’s use of the Product.
2.4 All orders are firm and Customer may not cancel or modify an order without the prior written consent of LabMinds, which may be withheld for any reason or no reason and any changes may be subject to price adjustment and/or cancellation fees. Custom Products are not cancellable,
2.5 LABMINDS RESERVES THE RIGHT TO ACCEPT OR REJECT ANY ORDER, TO TERMINATE THIS AGREEMENT, OR TO CHANGE THESE TERMS AND CONDITIONS, WITHOUT NOTICE TO CUSTOMER, AT ANY TIME FOR ANY REASON, AND RECEIPT BY CUSTOMER OF A LABMINDS QUOTATION, PRICE LIST, OR CATALOG DOES NOT CONSTITUTE AN OFFER TO SELL. ALL SALES BY LABMINDS ARE SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND EXPRESSLY CONDITIONED UPON CUSTOMER’S ASSENT THERETO. CUSTOMER WILL BE DEEMED TO HAVE ACCEPTED THESE TERMS AND CONDITIONS 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 THESE TERMS AND CONDITIONS WITHIN A REASONABLE TIME OR BY ACCEPTANCE OF AND/OR PAYMENT FOR THE PRODUCTS OR SERVICES. ALL PURCHASE ORDERS OR SIMILAR ORDER INSTRUMENTS ISSUED BY CUSTOMER WILL BE GOVERNED ONLY BY THE TERMS AND CONDITIONS OF THIS 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 NOR PROVISION OF THE SERVICES NOR ANY OTHER ACTION, CONDUCT, OR PERFORMANCE SHALL CONSTITUTE ACCEPTANCE OF TERMS OR CONDITIONS DIFFERENT FROM THE TERMS AND CONDITIONS OF THIS AGREEMENT.
2.6 PRICE AND PAYMENT.
3.1 LabMinds will Invoice Customer for all Products and Services. All payments are due in accordance with the payment terms set forth on the Quote and/or Invoice (or, if no terms are specified, on receipt 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 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 lesser of the rate of one and one-half percent (1.5%) per month or the maximum interest rate permitted by applicable law. Customer will be responsible to reimburse LabMinds for all LabMinds’ expenses (including attorney’s fees) in the event LabMinds seek collection of amounts owed LabMinds by Customer.
3.2 Customer shall pay all taxes (including sales taxes, use taxes, duties and other taxes of all kinds), rates or governmental levies, which are payable in connection with the sale or supply of Products and/or Services under this Agreement, 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 under this Agreement, 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 from LabMinds’ point of shipment.
3.3 If Customer fails to pay the total sum due hereunder within sixty (60) days of shipment, LabMinds hereby reserves and Customer hereby grants a purchase money security interest in the Products sold hereunder and the proceeds thereof. 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. Customer hereby authorizes LabMinds to file one or more financing statements signed only by LabMinds without Customer’s signature and to use a copy of this Agreement as an exhibit to any financing statement. Upon request of LabMinds, Customer agrees to promptly execute financing statements and such other instruments as LabMinds desires to perfect or maintain its security interest.
4.1 LabMinds warrants to the original Customer only that, for a warranty period of 12 months from date of Product shipment (the “Warranty Period”), and under normal use and operating conditions, the Products will operate in material conformance with the specifications set forth in the Documentation. LabMinds’ sole and exclusive liability, and Customer’s sole and exclusive remedy, for breach of the foregoing warranty is set forth in Section 4.3. Notwithstanding the foregoing, any third party manufactured or any third party software (collectively “Third Party Components”) incorporated in or necessary to use the Products 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.
4.2 The warranties set forth in Sections 4.1 and 4.2 do not apply to Product defects or failures caused by: (i) failure to use, regularly maintain and care for the Products in accordance with the Documentation or this Agreement; (ii) negligence or accident; (iii) if the Products have not been set up in accordance with the Documentation and consequently the Product stops functioning or fails to function properly; (iv) if the Products have been modified by anyone except LabMinds or if the failure is caused by use of attachments, accessories, consumables, parts or supplies not supplied or approved by LabMinds; or (v) Customer or third party personnel. 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 warranty periods specified in the limited Product warranty set forth 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 limited Product warranty 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 persons or entities, including through the combination with other chemicals or products. Customer will have the obligation of substantiating the chain of custody of the Products following delivery of the Products 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 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 Products or any results that may be obtained therefrom, are indicative only and do not form a part of this Agreement and are not representations and warranties of any kind.
4.3 In the event of breach of the warranty during the Warranty Period (a “Warranty Failure”), and provided that Customer reports the problem to LabMinds during the Warranty Period, LabMinds’ sole and exclusive liability, and Customer’s sole and exclusive remedy, shall be that LabMinds shall provide replacement parts, travel and labor required to repair the Product.
4.4 LabMinds’ ability to perform the Warranty and Service Plan is subject to Customer’s cooperation, including the provision of adequate permanent internet connection to the Product. LabMinds shall have no liability for Product or Service failure due to an internet issue, error, disruption, or downtime including, but not limited, to a security breach.
4.5 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 in this Agreement and the Documentation.
4.6 Customer acknowledges that any Wear Parts are provided “as is,” without warranty.
4.7 LabMinds warrants that 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.
4.8 EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION 4 WHICH IS SUBJECT TO AN EXCLUSIVE REMEDY, THE PRODUCTS AND SERVICES 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 OUR AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE PRODUCTS 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 PRODUCTS WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND THAT ANY DATA WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.
4.9 Customer acknowledges that it is responsible for reviewing the Documentation included with the Product and attached to the Quote and the Product’s warning labels, material safety data sheets, obtaining training in use of the Product before any use commences, and for ensuring that all Customer personnel understand the Product, their 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 Product and how to take reasonable precautions to avoid being injured by the Product, 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.
5.PROPRIETARY AND INTELLECTUAL PROPERTY RIGHTS.
5.1 Copyright, patent rights, trademarks, service marks and any other intellectual property rights in the Products or Services or any other items supplied by LabMinds pursuant to this Agreement, will remain the 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 shall not derive or attempt to derive by reverse engineering, disassembling, or otherwise any portion of the proprietary software. As between Customer and LabMinds, all intellectual property rights in and to the Services or any materials, processes, ideas, concepts, techniques, inventions, discoveries, or improvements produced by LabMinds or provided by LabMinds will be the property of LabMinds.
5.2 The Products include certain software and firmware (collectively, the “Software”). The Software is embodied in the Products and is used for the operation of the Product, and is licensed to Customer. LabMinds and its licensors own and shall retain all right, title and interest in and to the Software. Customer’s use of any Software including all modifications and derivative works 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 the Third Party Software Products or “click-through” terms) (“Third Party Licenses”). Certain Software may be subject to open source software licenses, and any applicable open source notices and licenses are available at www.LabMinds.com. Except to the extent permitted by any applicable open source licenses, 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 notices located on the Software; (v) remove any of the Software from the Products and/or use the Software independently from the Products; (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 transfer the Software without Customer’s prior written consent. In the event of a conflict or inconsistency between the terms of this Section 5.2 and the applicable Third Party Licenses in connection with Customer’s use of third party Software, the applicable Third Party Licenses shall prevail. For the avoidance of doubt, the software license described herein, does not grant any rights or any licenses to LabMinds’ Subscription Services.
5.3 Subscription Services are subject to the Subscription Agreement found at [www.______________________] (“Subscription Agreement”). In the event of a conflict or inconsistency between the terms of this Agreement and the terms of the Subscription Agreement, the terms of the Subscription Agreement shall prevail.
5.4 Customer is solely responsible for the content of all Data Customer provides or make available to LabMinds. LabMinds shall own all Data except for Customer Specific Data. Customer will secure and maintain all rights in Data necessary for LabMinds to provide the Products or 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 Data or to Customer’s use of the Product or Services other than as expressly set forth in this Agreement or as required by applicable law. LabMinds, or our third party licensors, may implement reasonable and appropriate measures designed to help Customer secure Data against accidental or unlawful loss, access or disclosure. LabMinds, or our third party licensors, will not use your Customer Specific Data except (i) as necessary to maintain or provide the 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 this Agreement, or (v) to support and investigation personnel.
5.5 The Products, Services and any Software is 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 Product and Service offerings. If Customer is purchasing Products or Services or licensing Software 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 Products or Services or license Software. 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.
5.6 The Software and any non-public information relating to the operation and technologies contained in the Product and Services as well as LabMinds’ business and technical information is the confidential information (“Confidential Information”) of LabMinds and Customer shall keep such information confidential. This obligation of confidentiality shall not apply to information which: (i) is or becomes part of the public domain through no fault of Customer; (ii) is furnished by LabMinds to others without restrictions on use and disclosure; (iii) becomes known or available to Customer without restriction from a source other than LabMinds without breach of any agreement with LabMinds; (iv) is disclosed with prior written approval of LabMinds; (v) is independently developed by Customer without the use of any Confidential Information; (vi) is previously known to the Customer on a non-confidential basis as can be demonstrated by the Customer’s written records; or (vii) is required by court order or government agency to be disclosed, in which case, Customer shall give LabMinds as much notice as is reasonably practical so LabMinds may seek a protective order or other confidential protection as LabMinds, in its sole discretion, may elect and Customer shall reasonably cooperate with LabMinds in LabMinds’ efforts to obtain such order or protection.
6.LIMITATION OF LIABILITY.
6.1 IN NO EVENT WILL LABMINDS HAVE ANY LIABILITY IN CONNECTION WITH THIRD PARTY COMPONENTS OR EVENTS OUT OF ITS CONTROL INCLUDING, WITHOUT LIMITATION, INTERNET OR POWER OUTAGES OR ANY FORCE MAJEURE EVENT. IN NO EVENT WILL LABMINDS 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 SERVICES, TERMINATION OR SUSPENSION OF THIS AGREEMENT, DISCONTINUATION OF ANY OR ALL OF THE PRODUCT OR SERVICES, UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE PRODUCTS OR SERVICES 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 OR ACCESS TO THE PRODUCTS OR SERVICES, ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE DATA, CUSTOMER’S USE OF THE PRODUCTS OR SERVICES, 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, THE FEES PAID BY CUSTOMER FOR THE APPLICABLE UNIT OF PRODUCT TO WHICH THE CLAIM RELATES; (B) IF THE CLAIM RELATES TO SERVICES, THE FEES PAID BY CUSTOMER FOR THE PARTICULAR SERVICE TO WHICH THE CLAIM RELATES AND (C) FOR ANY OTHER CLAIMS, THE AMOUNT PAID BY CUSTOMER TO LABMINDS IN THE TWELVE (12) MONTHS PRECEDING THE OCCURANCE TO WHICH THE CLAIM RELATED. 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, SOFTWARE OR SERVICES SUPPLIED BY PERSONS OTHER THAN LABMINDS, INCLUDING, BUT NOT LIMITED TO, NETWORK PROVIDERS OR FOR USE OF THE PRODUCT WITH ATTACHMENTS, ACCESSORIES, CONSUMABLES, OR SUPPLIES NOT SUPPLIED OR APPROVED BY LABMINDS, OR FOR MODIFICATIONS TO ANY PRODUCTS OR SOFTWARE WHICH ARE MADE BY PERSONS OTHER THAN LABMINDS PERSONNEL.
6.2 Customer shall indemnify, defend, and hold harmless each of LabMinds, its 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) patent, copyright, or trademark infringement, or violation of any other proprietary right, arising out of the use of any Product or Service or any specifications furnished by Customer; (ii) breach by Customer of any term or provision of this Agreement; (iii) damages arising out of or relating to Customer’s receipt, handling, storage, possession, transportation, disposal, purchase, resale, or use of any Product or Service whether used singly or in combination with other products (including, but not limited to, to use of chemicals which are part of Free Form Orders; and (iv) 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 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.
6.3 Customer represents and warrants that it is familiar with the characteristics, qualities and uses of the Products that it is purchasing from LabMinds and acknowledges that there may be hazards associated with the possession and use of the Products. Customer is responsible for instructing and warning its employees and all other persons who may come into contact with the Products 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 Product(s) purchased from LabMinds.
6.4 The Products are designed, developed, and manufactured as contemplated for general lab use, as described in the Documentation. The Products are 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 Products in Other Uses. Parties using the Products 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.
6.5 With respect to the Services, as LabMinds reasonably requires, Customer shall at its expense: (i) make available to LabMinds suitable space and facilities, including, but not limited to, functional telephone and internet connectivity, reasonably satisfactory to LabMinds and appropriate for the safe and efficient performance of the Services; (ii) for ongoing Services engagements, give LabMinds sixty (60) days’ notice prior to any production down time that will last longer than seven (7) days; (iii) provide adequate access to all necessary Customer systems, facilities, and facility-related training for LabMinds’ on-site employees and subcontractors identified as providers of the Services; and (iv) ensure proper and adequate back-up and storage procedures for Customer’s data and records.
7.1 LabMinds is, and shall act as, an independent contractor and not as an agent, partner, joint venturer or employee of Customer. Neither this Agreement, nor any terms and conditions contained herein, shall be construed as creating a partnership, joint venture, agency or franchise relationship.
7.2 Customer shall not assign or transfer this Agreement or the rights and obligations set forth herein without the prior written consent of LabMinds. LabMinds reserves the right to provide the services that are set forth in this Agreement through authorized LabMinds dealers and authorized LabMinds service companies.
7.3 In the event Customer desires to export any Products or Software from the United States, 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. Products purchased or received under this Agreement, 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 (“U.S.”) 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.
7.4 Customer represents and warrants that it shall not: (i) export, or transfer for the purpose of re-export, any Product 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 Products or Services hereunder.
7.5 Customer represents and warrants that: (i) it is familiar with and understands the terms of the U.S. Foreign Corrupt Practices Act of 1977 (“U.S. FCPA”), and that it shall comply with the U.S. FCPA and all other applicable anti-bribery or anti-corruption laws or regulations of any other country or jurisdiction that are applicable to the parties’ business activities hereunder; (ii) no principal, partner, officer, director, manager or employee of Customer is or will become an official of any governmental body of any country or jurisdiction (other than the U.S.) that is applicable to the parties’ business activities hereunder; and (iii) it has not and shall not offer, pay, give, or promise to pay or give, directly or indirectly (including through a third party or intermediary) any payment or gift of any money or thing of value to any government official, government employee (or employee of any company owned in part by a government), political party, political party official, or candidate for any government or political office (each, a “Government Official”) to influence any acts or decisions of such Government Official or to induce such official to use his or her influence with the local government to effect or influence the decision of such government in order to assist either LabMinds or Customer in its performance of their obligations under this Agreement or to benefit LabMinds. Failure by Customer to comply with this section will be deemed a material breach of a material provision of this Agreement and LabMinds will have the right to immediately terminate this Agreement and its performance without any liability to Customer.
7.6 LabMinds may communicate with Customer by email for all matters relating to the operation and maintenance of the Product, provision of Purchased Services and orders for Products. 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 face hereof 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.
7.7 Customer grants LabMinds permission to use any name or logo of the Customer in any marketing materials. LabMinds shall include a trademark attribution notice giving notice of Customer’s ownership of its trademarks in the marketing materials in which Customer’s name and logo appear.
7.8 These Terms and Conditions, the Quote, and any other attachments thereto, 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 Quote or in Customer’s acceptance of the Quote 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 these Terms and Conditions irrespective of the means by which the orders are placed or the form used. If there is any conflict between any provision of these Terms and Conditions, the Quote and any other attachment thereto, these Terms and Conditions shall prevail unless such Quote or other attachment states expressly that it is intended to prevail and is signed by both parties. These Terms and Conditions 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.
7.9 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 and 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.
7.10 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 Warranty Period.
7.11 This Agreement, including all disputes arising out of or related hereto, shall be governed by the laws of the Commonwealth of Massachusetts without regards to principles on conflicts of law. Any litigation concerning the subject matter of this agreement shall be brought in the Massachusetts 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.
7.12 In the event that any one or more provisions contained in this Agreement should be held to be unenforceable, its unenforceability shall not affect any other provisions of this Agreement. The unenforceable provision shall be replaced by an enforceable provision most nearly effecting the intention of the parties.
7.14 The headings in this Agreement are for convenience only, and shall not constitute a part of or be referred to in interpreting this Agreement.
August 23, 2019