1. Orders.
Alternative Biomedical Solutions LLC (“ABS”) hereby offers for sale or rent (if specified in the Order, as defined below) to the customer identified in the applicable Order (“Customer”) the products (including without limitation replacement parts) (the “Products”) and services (the “Services”) listed in one or more sales quotations issued by ABS to Customer (each a “Quote”). Once fully executed by Customer and ABS, each Quote becomes an order (each an “Order” and collectively the “Orders”) hereunder and by signing the Quote, Customer expressly agrees to accept and be bound by the terms and conditions set forth herein (the “Terms and Conditions”), in the applicable Order and in any addenda (“Addenda”) referenced in the Order (these Terms and Conditions, the fully executed Orders and any Addenda are collectively, the “Agreement”). The Parties agree that any subsequent Orders entered into by the Parties shall be governed these Terms and Conditions and shall constitute an Agreement. ABS and Customer may be referred to as the “Parties” and ABS or Customer may be referred to as a “Party”. Any provisions contained in any document issued by Customer are expressly rejected and if the terms and conditions in this Agreement differ from the terms of Customer’s offer, this Agreement shall be construed as a counter-offer and shall not be effective as an acceptance of Customer’s document. Customer’s receipt of the Products set forth in the Quotation or ABS’ commencement of the Services set forth in the Quotation will constitute Customer’s acceptance of this Agreement. The Agreement is the complete and exclusive statement of the contract between ABS and Customer with respect to Customer’s purchase (or if specified in the Order, rental) of the Products and Services. No waiver, consent, modification, amendment or change of the terms contained herein shall be binding unless in writing and signed by ABS and Customer. ABS’ failure to object to terms contained in any subsequent communication from Customer will not be a waiver or modification of the terms set forth herein. All Quotations are subject to acceptance in writing by an authorized representative of ABS. ABS may perform credit checks on Customer, and Customer hereby consents to ABS performing such credit checks and in obtaining information about Customer and its owners in connection therewith. If there is a conflict between these Terms and Conditions and the Order, these Terms and Conditions shall prevail with respect to the conflict unless the Order expressly references the provision of the Terms and Conditions with which it is inconsistent. If any Addenda conflict with these Terms and Conditions, such Addenda shall prevail over these Terms and Conditions.
2. Services.
ABS shall provide the Services set forth in the Order in accordance with the Agreement. Services shall be specified in the Order and may include professional services to assist Customer in the installation, implementation and use of the Products, including, without limitation, installation and training services (collectively, the “Professional Services”) and support and maintenance services with respect to Equipment, as defined below (the “Support Services”). Support Services shall be performed in accordance with ABS’ standard policies for the support and maintenance of such Equipment (as defined below). Any Professional Services ordered by Customer pursuant to an Order not used within sixty (60) days (or such other time period specified in the Order) expires, cannot be rescheduled and is not subject to refund. If Customer postpones or cancels Professional Services with five (5) business days’ or less advance written notice to ABS, Customer shall be liable for the full cost of such Professional Services. If Customer postpones or cancels Professional Services with more than five (5) business days’ advance written notice to ABS, Customer shall be liable to reimburse ABS for non-cancellable expenses incurred by ABS in preparation for performance of the Professional Services.
3. Products.
The Products shall be specified in the Order and shall be provided in accordance with this Agreement. Products may include laboratory and related equipment (the “Equipment”), reagents and other chemical substances (the “Reagents”), and consumable items (the “Consumables”).
4. Customer Obligations.
Customer shall cooperate with ABS in the performance of the Orders and shall provide ABS with timely access to and use of the personnel, facilities, electrical power, internet connectivity, systems, equipment and information necessary for ABS to perform its obligations hereunder at no charge to ABS. Customer shall further prepare the site in accordance with the instructions of ABS and/or the third party providers of Products and Services (the “Third Party Providers”). Customer agrees that ABS is not responsible for delays caused by Customer’s failure to comply with its obligations hereunder.
5. Term; Termination; Effect of Termination.
5.1. These Terms and Conditions shall take effect on the date that the first Order is signed by the Parties and shall continue until the expiration or termination of the last Order signed by the Parties, subject to earlier termination of the Order as provided below. Each Order shall be in effect for the initial term specified in the Order (the “Order Initial Term”). At the end of the Order Initial Term, the Order shall automatically renew without further action by the Parties for successive terms of one year each (each an “Order Renewal Term”), unless either Party notifies the other Party of its intention not to renew the Order at least ninety (90) days prior to the last day of the then-current Order Initial Term or Order Renewal Term. The Order Initial Term and the Order Renewal Terms are collectively referred to as the “Term”.
5.2. Either Party shall have the right to terminate an Order: (a) upon thirty (30) days’ prior written notice (except that the notice period shall be ten (10) days for a payment breach) by the non-breaching Party to the breaching Party in the event that the breaching Party materially violates any provision of the Agreement and fails to cure such breach within the thirty (30) day notice period (except that such notice period shall be ten (10) days for a payment breach); or (b) immediately in the event the other Party terminates or suspends its business, becomes subject to any bankruptcy or insolvency proceeding under federal or state statute, or becomes insolvent or becomes subject to control by a trustee, receiver or similar authority. If software of a Third Party Provider is set forth in an Order but is subject to separate terms and conditions of the Third Party Provider, Customer’s breach of such terms and conditions of the Third Party Provider shall constitute a breach of this Agreement.
5.3. Except as set forth in Section 5.2, each Order is non-cancellable and non-terminable during the applicable Order Initial Term and each Order Renewal Term and the amounts due hereunder are non-refundable. If identified in an Order, Customer further agrees to purchase all of its requirements of Products (including without limitation Reagents and Consumables for use with the Equipment purchased under the Order) and Services from ABS during the applicable Order Initial Term and Order Renewal Term (the “Requirements Purchase”).
5.4. Upon termination or expiration of an Order as described above, (i) the Receiving Party (as defined below) shall at the request of the Disclosing Party (as defined below) promptly return or destroy, at the Disclosing Party’s option, the Confidential Information (as defined below) of the Disclosing Party in the Receiving Party’s possession; (ii) at ABS’ election, Customer shall be unconditionally obligated to take and pay for all Products and Services ordered prior to the effective date of termination or expiration; and (iii) within ten (10) days after termination or expiration of the Order, Customer shall pay all amounts due ABS at the time of such termination or expiration. If an Order is terminated prior to the end of the then-current Term for any reason other than due to ABS’ uncured breach or insolvency as provided in Section 5.2, Customer shall further immediately pay all outstanding amounts that would have become due and payable to ABS for any remaining portions of the then-current Order Initial Term or the Order Renewal Term (including, without limitation, any remaining Requirements Purchase for the remainder of the then-current Initial Order Term or Renewal Order Term) had this Agreement and/or the Order not been terminated. Customer hereby agrees, upon any termination or expiration of any or all Orders, to return, at Customer’s expense, all Products to ABS as directed by ABS and authorizes ABS to enter Customer’s premises to retrieve any Products that are Rental Products (as defined in the Rental Addendum), other than such as Customer has a right to purchase and for which Customer has paid in full, and/or Products that have not been paid for by Customer. Provisions of the Agreement that are intended to survive termination or expiration of this Agreement and any Order shall survive in accordance with their terms, including without limitation Sections 5.4, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17 and 18.
6. Price.
All prices quoted by ABS or ABS’s representatives and/or as set forth in a Quote are valid for thirty (30) days from the date issued by ABS to Customer, unless otherwise stated in writing. All prices for the Products and Services will be as specified by ABS in the Order or, if no price has been specified or quoted, will be ABS’ price in effect at the time of shipment. All prices are subject to adjustment on account of specifications, quantities, raw materials, cost of production, shipment arrangements or other terms or conditions which are not part of ABS’ original price quotation. Further, after the Order has been agreed to by the Parties, the prices for Products and Services shall be subject to increase during the Order Initial Term and any Order Renewal Term after completion of the first twelve (12) months of such Order Initial Term, no more than annually, by no more than the greater of the Consumer Price Index – All Urban Consumers or Six Percent (6%). If Customer desires to use a third party leasing company to finance the fees due hereunder, Customer shall obtain ABS’ prior written approval to such financing arrangement.
7. Taxes and Other Charges.
Prices for the Products and Services exclude all sales, value added and other taxes, tariffs, duties and other charges imposed with respect to the sale, delivery, or use of any Products and Services covered hereby, all of which amounts must be paid by Customer. If Customer claims any exemption, Customer must provide a valid, signed certificate or letter of exemption for each respective jurisdiction. If specified in an Order, Customer shall reimburse ABS for its expenses reasonably incurred in the performance of the Services hereunder.
8. Terms of Payment.
ABS may invoice Customer upon shipment of the Products set forth in the Order for the price and all other charges payable by Customer in accordance with the Order. If no payment terms are stated in the Order, payment shall be net thirty (30) days from the date of invoice. If Customer fails to pay any amounts when due, Customer shall pay ABS interest thereon at a periodic rate of one and one-half percent (1.5%) per month (or, if lower, the highest rate permitted by law), together with all costs and expenses (including without limitation reasonable attorneys’ fees and disbursements and court costs) reasonably incurred by ABS in collecting such overdue amounts or otherwise enforcing ABS’ rights hereunder. ABS reserves the right to require from Customer full or partial payment in advance, or other security that is satisfactory to ABS, at any time that ABS believes in good faith that Customer’s financial condition does not justify the terms of payment specified. All payments shall be made in U.S. Dollars. Except as expressly stated herein, all amounts paid hereunder are non-cancellable and non-refundable.
9. Delivery; Cancellation or Changes by Customer.
The Products will be shipped to the destination specified by Customer in the Order, FOB ABS’ shipping point. ABS will have the right, at its election, to make partial shipments of the Products and to invoice each shipment separately. ABS reserves the right to stop delivery of Products in transit and to withhold shipments in whole or in part if Customer fails to make any payment to ABS when due or otherwise fails to perform its material obligations hereunder. All shipping dates are approximate only, and ABS and its Third Party Providers will not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond ABS’ and/or such Third Party Providers’ reasonable control. In the event of a delay due to any cause beyond ABS’ reasonable control, ABS reserves the right to terminate the Order or to reschedule the shipment within a reasonable period of time; Customer will not be entitled to refuse delivery or otherwise be relieved of any obligations as the result of such delay. Products as to which delivery is delayed due to any cause within Customer’s control may be placed in storage by ABS or a Third-Party Provider at Customer’s risk and expense and for Customer’s account. Orders may be cancelled by Customer only with ABS’ written consent and upon payment by Customer of ABS’ cancellation charges. ABS’ cancellation charges will include a restocking fee of 35% when the order is cancelled by Customer for any reason. Orders may not be changed by Customer except with ABS’ written consent and upon agreement by the Parties as to an appropriate adjustment in the purchase price therefor. Credit will not be allowed for Products returned without the prior written consent of ABS.
10. Title and Risk of Loss.
Notwithstanding the trade terms indicated above and subject to ABS’ right to stop delivery of Products in transit, title to and risk of loss to the Products will pass to Customer upon delivery of possession of the Products by ABS to the carrier; provided, however, that title to any software incorporated within or forming a part of the Products shall at all times remain with ABS’ licensor(s) thereof, as the case may be, subject to the license(s) granted to such software. Customer grants ABS a purchase money security interest in each Product and appoints ABS as its attorney-in-fact to sign and file any documents necessary to perfect that interest, until Customer pays the applicable purchase price in full.
11. Warranty.
11.1. Services Warranty. For Services performed for Customer pursuant to an Order, ABS warrants that the Services will be performed in a professional and workmanlike manner. If ABS is installing Equipment for Customer, ABS further warrants that the Equipment will be delivered and installed in good working order. If Customer reasonably believes that ABS has not performed the Services in accordance with the warranty in the preceding two sentences, Customer shall notify ABS within thirty (30) days after the Services were performed and as Customer’s sole remedy and ABS’ sole obligation, ABS shall at its option either reperform the non-conforming Services or refund Customer for the non-conforming Services. All test references within are subject to change based on regulatory updates. Additional work required will be billed at the ABS daily rate.
11.2. Products Warranty.
The Order shall specify if a Product is subject to a warranty from a Third Party Provider as described in this Section 11.2. If identified in the Order as being subject to the warranty specified in this Section 11.2, the applicable Third Party Provider warrants that the Products will operate or perform substantially in conformance with the applicable published specifications and be free from defects in material and workmanship, when subjected to normal, proper and intended usage by properly trained personnel during the applicable Warranty Period. The “Warranty Period” shall be the period of time set forth in the Order, the Product documentation, published specifications or package inserts or if a Warranty Period is not specified in the Order, the Third Party Provider’s product documentation, published specifications or package inserts, the Warranty Period shall be one (1) year from the date of shipment of the applicable Products to Customer for Equipment. During the Warranty Period, the applicable Third Party Provider shall repair or replace, at its option, defective Products so as to cause the same to operate in substantial conformance with said published specifications; provided that Customer shall (a) promptly within the Warranty Period notify ABS in writing upon the discovery of any defect, which notice shall include the Product model and serial number (if applicable) and details of the warranty claim; and (b) after ABS’ review with the applicable Third Party Provider, ABS or the applicable Third Party Provider will provide Customer with service data and/or a Return Material Authorization (“RMA”), which may include biohazard decontamination procedures and other product-specific handling instructions, then, if applicable, Customer may return the defective Products to ABS with all costs prepaid by Customer. Replacement parts may be new or refurbished, at the election of the Third Party Provider, and the applicable Third Party Provider shall as its sole obligation perform such repairs and/or replacements at no additional cost to Customer. All replaced parts shall become the property of Third Party Provider. Shipment to Customer of repaired or replacement Products shall be made in accordance with the delivery provisions of these Terms and Conditions. There is no warranty on Consumables or Reagents. If ABS is informed by a Third Party Provider of a defect in a Reagent, Customer shall reasonably cooperate with ABS and the Third Party Provider in replacing the Reagent and destroying or returning the defective Reagent, as directed by such Third Party Provider. Except as set forth above, Products supplied by ABS that are obtained by ABS from an original manufacturer or third party supplier are not warranted, but ABS agrees to assign to Customer any warranty rights in such Product that ABS may have from the original manufacturer or third party supplier, to the extent such assignment is allowed by such original manufacturer or third party supplier. ABS makes no warranties with respect to the Products. Neither ABS nor any Third Party Provider have any obligation to make repairs, replacements or corrections required, in whole or in part, and no warranties shall apply, for damage arising as the result of (i) normal wear and tear, (ii) accident, disaster or event of force majeure, (iii) misuse, fault or negligence of or by Customer, (iv) use of the Products in a manner for which they were not designed, (v) causes external to the Products such as, but not limited to, power failure or electrical power surges, (vi) improper storage and handling of the Products in violation of the requirements set forth in the applicable Product documentation or (vii) use of the Products in combination with equipment or software not supplied by ABS or the applicable Third Party Provider. If ABS or a Third Party Provider determines that Products for which Customer has requested warranty services are not covered by the warranty hereunder, Customer shall pay or reimburse ABS for all costs of investigating and responding to such request at ABS’ or the applicable Third Party Provider’s then prevailing time and materials rates. If ABS and/or the applicable Third Party Provider provides repair services or replacement parts that are not covered by this warranty, Customer shall pay ABS or the applicable Third Party Provider therefor at ABS’ or the applicable Third Party Provider’s then prevailing time and materials rates. ANY INSTALLATION, MAINTENANCE, REPAIR, SERVICE, RELOCATION OR ALTERATION TO OR OF, OR OTHER TAMPERING WITH, THE PRODUCTS PERFORMED BY ANY PERSON OR ENTITY OTHER THAN THE APPLICABLE THIRD PARTY PROVIDER OR ABS WITHOUT SUCH PARTY’S PRIOR WRITTEN APPROVAL, OR ANY USE OF REPLACEMENT PARTS NOT SUPPLIED BY THE APPLICABLE THIRD PARTY PROVIDER AND/OR ABS, SHALL IMMEDIATELY VOID AND CANCEL ALL WARRANTIES WITH RESPECT TO THE AFFECTED PRODUCTS.
11.3. Disclaimer of Warranties.
THE WARRANTIES REFERRED TO IN SECTION 11.2 SHALL BE THE SOLE REMEDY OF CUSTOMER AND THE SOLE OBLIGATION OF THE APPLICABLE THIRD PARTY PROVIDER IN THE EVENT OF ANY FAILURES OF ANY PRODUCT TO CONFORM TO ANY SUCH WARRANTY. EXCEPT AS PROVIDED HEREIN, ABS AND THE THIRD PARTY PROVIDERS DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS AND SERVICES, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. ABS AND THE THIRD PARTY PROVIDERS DO NOT WARRANT THAT THE PRODUCTS AND/OR SERVICES ARE ERROR-FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.
WITHOUT LIMITATION, ABS MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY ANALYSES, SCIENTIFIC METHODS, VALIDATIONS, TEST RESULTS, OUTPUT OR OTHER DATA RESULTING FROM THE USE OF THE PRODUCTS AND CUSTOMER HEREBY ACKNOWLEDGES THAT IT IS AND WILL BE RESPONSIBLE FOR THE FOREGOING.
CUSTOMER SHALL COMPLY WITH ABS’ INSTRUCTIONS AND TRAINING REGARDING THE USE OF THE PRODUCTS AND TESTING OF SAMPLES. CUSTOMER’S USE OF ANY PRODUCTS OR TESTING OF SAMPLES IN CONTRAVENTION OF THE INSTRUCTIONS AND TRAINING PROVIDED BY ABS WILL BE CONSIDERED A BREACH OF THE AGREEMENT.
11.4. Customer Warranties.
Customer represents and warrants as follows: (a) it will use the Products in accordance with this Agreement, applicable Product documentation and applicable laws and regulations, including, without limitation, the Clinical Laboratory Improvement Amendments and the Commission on Office Laboratory Accreditation; and (b) it has the full authority and sufficient rights to enter into this Agreement and exercise its rights and obligations herein.
12. Confidentiality.
12.1. “Confidential Information” means all documents, materials and information of a proprietary non-public nature that is disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in connection with this Agreement that has been marked as “CONFIDENTIAL” or that due to its nature, a reasonable person would consider the information to be confidential in nature. Confidential Information of ABS includes, without limitation, information of ABS and its Third Party Providers about the Products and Services (including, without limitation, technical information about the Products and Services, all intellectual property and proprietary rights relating to the Products and Services, pricing information relating to the Products and Services, and samples of Products provided to Customer for distribution to patients of Customer). Customer agrees that any such samples shall be used by Customer for internal system and validation testing only or, if not so used, shall be promptly returned to ABS. Customer shall not use such samples to provide care to patients and shall not bill patients or third party payers for the provision of such samples.
Confidential Information does not include information which: (a) is already known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is or becomes publicly known through no wrongful act of the Receiving Party; (c) is independently developed by the Receiving Party without access or reference to the Disclosing Party’s Confidential Information; or (d) is received by the Receiving Party from a third party without restriction and without breaching its confidentiality obligations hereunder.
12.2.The Receiving Party shall exercise the same level of care to protect the Disclosing Party’s Confidential Information from unauthorized disclosure of use as it uses to protect its own confidential information, but in no event less than reasonable care. The Receiving Party shall not disclose the Disclosing Party’s Confidential Information other than to its employees, contractors, suppliers, Third Party Providers, affiliates, agents, bankers, counsel and representatives (“Representatives”) on a need to know basis as reasonably required to perform its obligations and exercise its rights under this Agreement. The Receiving Party’s use of the Disclosing Party’s Confidential Information shall be limited to such use as is reasonably required to perform its obligations and exercise its rights under this Agreement. The Confidential Information of the Disclosing Party remains solely and exclusively owned by the Disclosing Party, subject to the limited use rights described herein. ABS reserves all rights in the intellectual property and proprietary rights appurtenant to the Products and Services not expressly granted herein.
12.3.If the Receiving Party receives a subpoena or other legal or regulatory demand requiring the Receiving Party to disclose the Disclosing Party’s Confidential Information, the Required Party shall (if permitted to do so under the subpoena or demand) notify the Disclosing Party in order for the Disclosing Party to have an opportunity to seek a protective order and the Receiving Party shall reasonably cooperate with the Disclosing Party’s efforts in seeking such an order at the Disclosing Party’s cost and expense. So long as the Receiving Party complies with the preceding sentence, it may disclose the Disclosing Party’s Confidential Information to the extent required to do so under the subpoena or demand.
13. Indemnification.
13.1. By ABS. ABS shall indemnify, defend and save Customer, its officers, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys’ fees) arising from claims of a third party (“Indemnified Items”) for injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of ABS, its employees, agents or representatives or contractors in connection with the performance of Services at Customer’s premises under this Agreement. Additionally, if authorized by the applicable Third Party Provider, ABS shall pass through to Customer the indemnification by the Third Party Provider for Indemnified Items that a Product infringes any valid patent, copyright, trademark, trade secret and/or other intellectual property right; provided, however, the Third Party Provider shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Customer, its employees, agents or representatives or contractors, (ii) any third party, (iii) use of a Product in combination with equipment or software not supplied by ABS, where the Product would not itself be infringing, (iv) compliance with Customer’s designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed, or (vi) modifications of the Product by anyone other than ABS or its contractors and agents. Customer shall provide ABS with prompt written notice of any third party claim covered by the indemnification obligations hereunder. ABS or the Third Party Provider, where applicable, shall have the right to assume exclusive control of the defense of such claim or, at the option of the ABS or the Third Party Provider, to settle the same. Customer agrees to cooperate reasonably with ABS or the Third Party Provider in connection with the performance by ABS or the Third Party Provider of its obligations in this Section. If not authorized by the Third Party Provider, ABS provides no indemnification with respect to the Products.
If the Third Party Provider has authorized ABS to pass through the above indemnification to Customer, the following applies. If ABS or the Third Party Provider reasonably believes that the Products are infringing or if a claim of infringement has been made, the Third Party Provider at its discretion and at its own expense shall (a) procure for Customer the right to continue using the Product; (b) replace or modify the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Customer the amortized amounts paid by Customer with respect thereto, based on a three (3) year amortization schedule. THIS SECTION 13.1 STATES ABS’ AND THE APPLICABLE THIRD PARTY PROVIDERS’ ENTIRE LIABILITY TO CUSTOMER FOR THE INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS RELATING TO THIS AGREEMENT AND THE PRODUCTS AND SERVICES PROVIDED HEREUNDER.
13.2.By Customer. Customer shall indemnify, defend with competent and experienced counsel and hold harmless ABS, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys’ fees and disbursements and court costs) to the extent arising from or in connection with (a) use of the Products and Services in violation of the Agreement or applicable laws; (b) the negligence or willful misconduct of Customer, its agents, employees, representatives or contractors; (c) use of a Product in combination with equipment or software not supplied by ABS where the Product itself would not be infringing; (d) ABS’ compliance with designs, specifications or instructions supplied to ABS by Customer; (e) use of a Product in an application or environment for which it was not designed; or (f) modifications of a Product by anyone other than ABS without ABS’ prior written approval.
14. Software.
With respect to any software products incorporated in or forming a part of the Products hereunder, Customer intends and agrees that such software products are being licensed and not sold, and that the words “purchase”, “sell” or similar or derivative words are understood and agreed to mean “license”, and that the word “Customer” or similar or derivative words are understood and agreed to mean “licensee”. Notwithstanding anything to the contrary contained herein, ABS’ licensor retains all rights and interest in software products provided hereunder. ABS hereby grants to Customer a royalty-free, non-exclusive, nontransferable license, without power to sublicense, to use software provided hereunder solely for Customer’s own internal business purposes on the Equipment purchased hereunder and to use the related documentation solely for Customer’s own internal business purposes. This license terminates when Customer’s lawful possession of the Equipment purchased hereunder ceases, unless earlier terminated as provided herein. Customer agrees to hold in confidence and not to sell, transfer, license, loan or otherwise make available in any form to third parties the software products and related documentation provided hereunder. Customer may not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement the software products provided hereunder without ABS’ prior written consent. ABS will be entitled to terminate this license if Customer fails to comply with any material term or condition in this Section 14. Customer agrees, upon termination of this license, to return to ABS all software products and related documentation provided hereunder and all copies and portions thereof. Certain of the software products provided by ABS may be owned by one or more third parties and licensed to ABS. Thus, ABS and Customer agree that such third parties retain ownership of and title to such software products. ABS’ warranty and indemnification obligations set forth in the Agreement shall not apply to software products owned by third parties and provided hereunder. If specified in the Order, software may be provided by ABS to Customer but Customer’s receipt and use of such software is subject to the Third Party Provider’s contract terms and conditions (and not by this Agreement). In such case, Customer agrees to comply with such terms and conditions of the Third Party Provider.
15. Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE LIABILITY OF ABS AND ITS THIRD PARTY PROVIDERS UNDER THIS AGREEMENT (WHETHER BY REASON OF BREACH OF CONTRACT, TORT, OR OTHERWISE), BUT EXCLUDING: (A) LIABILITY OF ABS AND THE THIRD PARTY PROVIDERS FOR BREACH OF WARRANTY (THE SOLE REMEDY FOR WHICH SHALL BE AS PROVIDED UNDER SECTION 11 ABOVE), (B) ABS’ INDEMNIFICATION OBLIGATIONS, AND/OR (C) DAMAGES ARISING FROM ABS’ GROSS NEGLIGENCE, WILLFUL MISCONDUCT AND/OR FRAUD, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL PURCHASE PRICE THERETOFORE PAID BY CUSTOMER TO ABS WITH RESPECT TO THE PRODUCT(S) OR SERVICES GIVING RISE TO SUCH LIABILITY IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE WHEN THE CAUSE OF ACTION GIVING RISE TO LIABILITY OCCURRED. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL ABS AND ITS THIRD PARTY PROVIDERS BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE OF FACILITIES OR EQUIPMENT, LOSS OF REVENUE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF GOODWILL), REGARDLESS OF WHETHER ABS OR A THIRD PARTY PROVIDER HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR IS NEGLIGENT. THE LIMITATIONS OF LIABILITY IN THIS SECTION 15 APPLY UNDER CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL THEORY.
16. Export Restrictions.
Customer acknowledges that each Product and any related software and technology, including technical information and/or deliverables or work product resulting from the Services supplied by ABS or contained in documents (collectively “Items”), is subject to export controls of the U.S. government. The export controls may include, but are not limited to, those of the Export Administration Regulations of the U.S. Department of Commerce (the “EAR”), which may restrict or require licenses for the export of Items from the United States and their re-export from other countries. Customer shall comply with the EAR and all other applicable laws, regulations, laws, treaties, and agreements relating to the export, re-export, and import of any Item. Customer shall not, without first obtaining the required license to do so from the appropriate U.S. government agency; (a) export or re-export any Item, or (b) export, re-export, distribute or supply any Item to any restricted or embargoed country or to a person or entity whose privilege to participate in exports has been denied or restricted by the U.S. government. Customer shall, if requested by ABS, provide information on the end user and end use of any Item exported by the Customer or to be exported by the Customer. Customer shall cooperate fully with ABS in any official or unofficial audit or inspection related to applicable export or import control laws or regulations, and shall indemnify and hold ABS harmless from, or in connection with, any violation of this Section by Customer or its employees, consultants, or agents.
17. Medicare/Medicaid Reporting Requirements.
If Customer is a recipient of Medicare/Medicaid funds, Customer acknowledges that it has been informed of and agrees to fully and accurately account for, and report on its applicable cost report, the total value of any discount, rebate or other compensation paid hereunder in a way that complies with all applicable federal, state and local laws and regulations which establish ‘Safe Harbor” for discounts. Customer shall make written request to ABS in the event Customer requires additional information from ABS in order to meet its reporting requirements. Customer acknowledges that agreement to such reporting requirement was a condition precedent to ABS’ agreement to provide Products and that ABS would not have entered into this Agreement had Customer not agreed to comply with such obligations.
18. Miscellaneous.
(a) Customer may not delegate any duties or assign the Agreement and any rights or claims hereunder without ABS’ prior written consent, and any such attempted delegation or assignment shall be void; (b) The rights and obligations of the Parties hereunder shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to its choice of law provisions. Each Party hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts located in New Castle County, Delaware, in any action arising out of or relating to this Agreement; (c) Both Parties waive any right they may have under applicable law or otherwise to a right to a trial by jury. Other than with respect to payment disputes, any action arising under this Agreement must be brought within one (1) year from the date the cause of action arose; (d) The application to this Agreement of the U.N. Convention on Contracts for the International Sale of Goods is hereby expressly excluded; (e) In the event that any one or more provisions contained herein shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall remain in full force and effect, unless the revision materially changes the bargain; (f) Each Party’s failure to enforce, or each Party’s waiver of a breach of, any provision contained herein shall not constitute a waiver of any other breach or of such provision; (g) Unless otherwise expressly stated on the Product or in the documentation accompanying the Product, the Product is intended for research only and is not to be used for any other purpose, including without limitation, unauthorized commercial uses, in vitro diagnostic uses, ex vivo or in vivo therapeutic uses, or any type of consumption by or application to humans or animals; (h) Any notice or communication required or permitted hereunder shall be in writing and shall be deemed received when personally delivered or three (3) business days after being sent by certified mail, postage prepaid, to a Party at the address specified herein or at such other address as either Party may from time to time designate to the other; (i) Customer agrees that ABS may include Customer on its customer lists and reference Customer in internal and external marketing materials, including on ABS’ websites and in social media; (j) ABS shall have the right to audit Customer’s books and records to confirm Customer’s compliance with its obligations under this Agreement, including, without limitation, with respect to its purchases of Products and Services under an Order; (k) Customer hereby assigns to ABS all feedback about the Products and Services provided by Customer and its personnel to ABS; (l) Except with respect to payment obligations, neither Party shall be liable for any delays or other non-performance resulting from circumstances or causes beyond its reasonable control, including, without limitation, fire or other casualty, act of God, strike or labor dispute, war or other violence, any law, order or requirement of any governmental agency or authority, epidemic or pandemic, and/or supply chain interruptions; (m) During the term of this Agreement and for one (1) year thereafter, Customer shall not directly or indirectly solicit for hire as an employee, consultant or otherwise, any ABS personnel directly involved in providing Products or Services to Customer; (n) ABS is performing this Agreement as an independent contractor and is not an employee of Customer. Nothing in this Agreement shall be deemed to constitute a partnership or joint venture between ABS and Customer. Neither Party shall be deemed to be an agent of the other Party; (o) Customer shall not withhold or delay payment of any amount due and payable by reason of any set-off of any claim or dispute with ABS; (p) In addition to the other remedies provided in these Terms and Conditions, a Party may avail itself of equitable remedies in the event of a breach of the confidentiality, intellectual property and non-solicitation obligations hereunder; (q) Customer shall notify ABS within twenty-four (24) hours of Customer becoming aware of any Product defect. If a Product is subject to recall, Customer shall reasonably cooperate with any such recall; (r) Customer represents and warrants to ABS that neither Customer nor any of its affiliates, or any of their respective owners, shareholders, partners, members, subcontractors, employees or agents (i) is currently excluded, debarred or otherwise ineligible to participate in the Federal health care programs as defined in 42 U.S.C. Section 1320a-7b(f) (“Federal Health Care Programs”); (ii) has been convicted of a criminal offense related to the provision of healthcare items or services but has not yet been excluded, debarred, or otherwise declared ineligible to participate in the Federal health care programs; and (iii) is under investigation or otherwise aware of any circumstances which may result in being excluded from participation in the Federal Health Care Programs. This shall be an ongoing representation and warranty during the Term, and Customer agrees to immediately notify ABS of any change in the status of the representation and warranty set forth in this subsection. Any breach of this subsection shall give ABS the right to terminate the Agreement immediately for cause; (s) The Parties agree that nothing contained in the Agreement shall require either party or its representatives to make referrals to, be in a position to make or influence referrals to, or otherwise general business for the other party or any of its affiliates. Notwithstanding any unanticipated effect of any provision of this Agreement, the Parties enter into this Agreement with the intent of conducting their relationship in full compliance with applicable federal and state laws, including 42 U.S.C. Section 1320a-7b (commonly known as the Anti-Kickback Statute), 42 U.S.C. Section 1395nn (commonly known as the Stark law) and any other federal or state law provision governing fraud and abuse or self-referrals under the Medicare or Medicaid programs, as such provisions may be amended from time to time and as new federal and state laws come into effect. Any breach of the laws referenced in this subsection shall constitute a breach of the Agreement; (t) Upon written request of the Secretary of the Department of Health and Human Services (“HHS”) or the Comptroller General or any of their duly authorized representatives, ABS will make available those contracts, books, documents and records necessary to verify the nature and extent of the costs of providing goods and services under the Agreement. Such inspection shall be available up to four years after the rending of such services. If ABS carries out any of its duties under the Agreement through a subcontract with a value of $10,000 or more over a twelve-month period with a related individual or organization, ABS agrees to include this requirement in any subcontract. No attorney-client privilege or other legal privilege will be deemed to have been waived by ABS by virtue of this section.
19. Instrumentation Obsoletion
From time-to-time scientific instrumentation may become obsolete. If at any such time, Customer and ABS agrees, in good faith, that instrumentation installed and serviced by ABS shall become obsolete, both parties will agree in good faith to sunset the obsolete instrumentation and replace it with one of equal or greater value under terms agreeable to both parties.