Terms and Conditions
IMPORTANT – READ CAREFULLY: USE OF CELLARCUS BIOSCIENCES, INC. (“CELLARCUS”) PRODUCTS IS SUBJECT TO THE AGREEMENT BELOW. BY PURCHASING CELLARCUS PRODUCTS YOU ACCEPT THE TERMS OF THIS AGREEMENT WITH CELLARCUS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, CANCEL YOUR ORDER AND RETURN THE PRODUCT UNOPENED AND UNUSED AS DIRECTED BELOW TO CANCEL YOUR INVOICE OR RECEIVE A FULL REFUND.
- These are the standard terms and conditions (“Terms”) under which Cellarcus Biosciences Inc. (“Cellarcus”) sells and otherwise transfers (i) Cellarcus off-the-shelf catalog products (“Catalog Product”); and (ii) products manufactured according to Customer’s specifications, including bulk and custom formulation (“Custom Product”). Catalog Product and Custom Product are collectively referred to as “Product” unless otherwise specified. ”Software” means any and all firmware programs and associated files that are incorporated, embedded or otherwise provided by Cellarcus with the Product; any and all software programs or applications and associated files provided that are incorporated, embedded or otherwise provided by Cellarcus with the Product; all modified versions of and upgrades or improvements to such programs provided by Cellarcus (such as those provided via web-based updates); and all copies of such programs and files. ”Documentation” means the documentation provided by Cellarcus in connection with the Product. These Terms apply to any person or entity purchasing or otherwise receiving Product directly or indirectly from Cellarcus, a Cellarcus affiliate or a Cellarcus distributor, and any person or entity using Product (“Customer”). These Terms apply to any order for Product regardless of the mode of ordering (e.g., Internet, electronic, e-mail, telephone, facsimile) employed to effect purchase or transfer of Product (“Order”). The sole exception to the applicability of these Terms is the existence of an Inter-Company Agreement (as set out in Section 2) at the time an Order is received for Product covered by the Inter-Company Agreement.
Some of Cellarcus’s Products are subject to third party intellectual property licenses, software licenses, or other contract terms that Customer will not find here (“Supplementary Terms”). If such Supplementary Terms exist for Product being purchased, they will be found in a product insert or written agreement that accompanies or is associated with the Product. Supplementary Terms flow down to any end-user and apply in the case of authorized or unauthorized use of Product by Customer or any other end-user. If Customer is uncertain if any Supplementary Terms exist for Product, Customer should contact Cellarcus’s Customer Service as provided at https://www.cellarcus.com/contact-us.
Customer’s placement of an Order for Product is Customer’s agreement to be bound by these Terms and any Supplementary Terms. An Order accepted by Cellarcus (excluding any additional, different or conflicting terms other than Product identification, quantity and Custom Specifications), these Terms, and any Supplementary Terms are collectively referred to herein as an “Agreement”.
- Exclusive Terms of Sale and Transfer. Unless there is an Inter-Company Agreement in force, this Agreement represents the entire agreement between Customer and Cellarcus with regard to the subject matter hereof and supersedes and replaces any previous course of dealing, course of performance or trade usage, and any previous agreements between Customer and Cellarcus (whether written or oral), regarding such subject matter; provided however that if Cellarcus and Customer have a previous agreement governing any confidential information (a “Confidential Disclosure Agreement”), such Confidential Disclosure Agreement will remain in full force and effect solely with respect to the confidential information disclosed thereunder prior to the Order date. Any additional, different or conflicting terms that Customer may provide or appearing in or referenced in Customer’s Order or other purchase or confirming document, whether or not such would materially alter any Agreement, are material alterations which Cellarcus expressly objects, and are not terms of any Agreement to which Cellarcus is bound.
Cellarcus reserves the right to change these Terms at any time. Any change to these Terms will not apply to an Agreement for any Order Cellarcus received before the change is in effect. The most recent revision date can be found at the end of these Terms.
Cellarcus in its sole discretion may from time-to-time enter into a separately negotiated written agreement executed by a duly authorized representative of Cellarcus for the supply of certain Product with terms different or in addition to these Terms (“ Inter-Company Agreement ”). The terms of any Inter-Company Agreement only apply to Orders as of the effective date of the Inter-Company Agreement and only apply to Orders of Product covered by the Inter-Company Agreement.
- Cellarcus provides several methods for submitting Orders for Product: Internet, electronic, e-mail, facsimile and telephone. An Order shall set forth identification and quantity of the desired Product(s) and Custom Specifications for Custom Product requests. Customer must provide complete and accurate contact and billing information. Failure to provide complete and accurate contact and billing information constitutes a breach of these Terms, and may result in Order processing delays or Order cancellation. Customer’s order for and purchase of Product is expressly conditioned on Customer’s agreement to these Terms and any Supplementary Terms. All Orders are subject to Cellarcus’s acceptance in accordance with Section 5. Written confirmation of an Internet, electronic, e-mail, facsimile or telephone Order is not required. If confirmation of an Order is sent by Customer, it must be prominently marked “CONFIRMING ORDER, DO NOT DUPLICATE”.
- Order Cancellation. Customer may not cancel or change an Order once the Order has been packaged except on a case-by-case basis with written acknowledgment by Cellarcus and, in any case, Customer may not cancel or change an Order after shipment of Product. Orders that are not cancellable may be eligible for return according to Section 12. Custom Product Orders are not eligible for cancellation after twenty four (24) hours from Cellarcus’s receipt of an Order.
- Order Acceptance. All Orders are subject to acceptance by Cellarcus either in writing or by shipping Product. Cellarcus may accept any Order in whole or in part. Cellarcus reserves the right to refuse or cancel an Order for any reason including limitations on quantities available, inaccuracies in ordering or billing information, errors in Product or pricing information, or any other potential problem identified by Cellarcus. Cellarcus will contact Customer if any portion or all of an Order is canceled or if additional information is required to accept the Order; on the condition that Customer has provided e-mail contact information at the time of Order. All Orders are accepted on the condition that any additional, different or conflicting terms, whether or not such would materially alter any Agreement, appearing in or referenced in Customer’s Order or other purchase or confirming document are material alterations, are expressly objected to by Cellarcus and are not terms of any Agreement to which Cellarcus is bound.
- Shipping and Delivery. Shipments are made in accordance with Cellarcus’s standard commercial practices via a common carrier selected by Cellarcus. Cellarcus shall not assume any liability in connection with the shipment nor will the carrier be construed to be an agent of Cellarcus. All shipments are subject to availability and partial shipments are permissible. Shipment schedules are approximate and Cellarcus will use commercially reasonable efforts to complete shipments as indicated. Cellarcus may suspend or delay shipment or cancel an Order at any time pending receipt of adequate assurances of Customer’s ability to pay, including full or partial prepayment or payment of any outstanding amounts owed. Cellarcus shall not be liable for any damages or penalties for delay in shipment or delivery, cancellation of an Order, or for failure to give notice of delay or cancellation for any reason.
All Products are delivered FOB Cellarcus’s facility. Risk of loss for all Products transfer to Customer upon Cellarcus’s placement of the Product with the carrier. Customer shall pay or reimburse Cellarcus for all transportation, freight, insurance, loading, packaging and handling charges (“Delivery Charges”); sales, use, excise, import, privilege or any similar tax or duty levied by any government (“Taxes”), and storage and all other charges applicable to shipment and delivery of the Product. Partial deliveries are permissible. Customer’s rejection of any Product does not shift the risk of loss until the Product is returned to Cellarcus pursuant to Section 12.
- Title to Product transfers to Customer upon Cellarcus’s placement of the Product with the carrier, subject to payment in full and the limitations provided in these Terms and any Agreement.
- The price of Catalog Product is Cellarcus’s standard U.S. list price in effect on the date the Order is received, unless otherwise agreed to in writing by Cellarcus. Custom Product and Instruments are priced by quotation. All prices are subject to change without notice. Prices of Product do not include Delivery Charges, Taxes, or storage fees and all other charges applicable to shipment and delivery of applicable to the Product. These charges will be added to Customer’s invoice.
- Sales tax will be added when shipping to jurisdictions where Cellarcus is responsible for collecting sales tax unless the receiving party has valid exempt information on file with Cellarcus. Customer is solely responsible for any other applicable Taxes and agrees to indemnify Cellarcus for any such Tax if not properly paid by Customer. Customer is responsible for confirming and providing any applicable valid exemption documents. Customer must contact Cellarcus to correct or update its account information and to note any updates to this effect on applicable Orders.
- Customer shall pay for all Product ordered by Customer pursuant to an Order accepted by Cellarcus. Customer shall pay the prices specified in the applicable invoice. Payment is due upon placement of an Order and payable no later than 30 days after the date of invoice. Payment must be made in U.S. Dollars. Customer will only be charged for Product shipped. Product placed on back order will be charged when shipped. If Customer is late in making payment, Cellarcus may, without affecting any other rights or remedies, suspend shipment, cancel Orders, reject future Orders, and/or charge interest as a late payment fee. Interest accrues from the due date until paid, at the rate of one and a half percent (1.5%) per month (18% per year) or such lesser amount as is the maximum rate of interest allowed by law. Customer shall pay any and all reasonable costs, including attorneys’ fees, incurred by Cellarcus in collecting any delinquent balance.
- Within ten (10) days after Customer’s receipt of a Product shipment (other than an Instrument shipment, which is covered under Section 21 below), Customer shall inspect the shipment for condition (other than Non-conforming Product provided in Section 12), quantity and identity of the shipped Product. A Product shipment that is non-conforming based upon the visible condition upon delivery, quantity or identity of Product received, or duplicate shipments due to incorrectly marked confirming documents (“ Non-conforming Shipment ”) may be eligible for return in accordance with Section 12.
- Product may be eligible for return by Customer at Cellarcus’s discretion and in accordance with the requirements of this Section 12. For all returns, a return authorization must be obtained from Cellarcus’s Customer Service or the “Technical Support Scientist” of your local Cellarcus office or nearest distributor (“ Return Authorization ”), and Customer shall follow any other reasonable instructions provided by Cellarcus. Cellarcus will not accept returns, and no replacement or credit will be issued or invoice canceled, without a Return Authorization. If requested by Cellarcus, Customer shall make Product available for inspection by Cellarcus or its agent. Custom Orders are not eligible for return. Claims for Non-conforming Shipment must be made in writing to Cellarcus within ten (10) calendar days following receipt of Product and Product returned as set forth below in Sections 12(a) and 12(b) as applicable. Claims for Product that do not conform to the Limited Warranty set forth in Section 16 (“Non-conforming Product”) must be made, and Product returned, in accordance with the terms of the Limited Warranty of Section 16. If Customer does not accept these Terms, claims must be made in writing to Cellarcus within ten (10) calendar days following receipt of Product and Product returned as set forth below in this Section 12(c).
(a) In the case of error by Cellarcus in fulfilling an Order, return of Product of Non-conforming Shipment is at Cellarcus’s cost and Cellarcus at its sole discretion will replace the Product of Non-conforming Shipment or issue a full credit. Product of Non-conforming Shipment due to Cellarcus error must be returned within ten (10) days of receiving a Return Authorization in the original packaging, unopened and unused. This remedy is Customer’s sole and exclusive remedy and Cellarcus’s sole and exclusive liability for claims of Non-conforming Shipment due to Cellarcus error and is in lieu of all other remedies or claims for damages which Customer may have against Cellarcus.
(b) In the case of error by Customer in ordering Product, return of Non-conforming Shipment is at Customer’s cost and may be eligible for partial credit at Cellarcus’s sole discretion. Cellarcus does not issue full credit for returned Product of Non-conforming Shipment due to Customer error because Product is perishable and Cellarcus cannot be assured of the quality of returned Product. Partial credit is based on the invoiced price of returned Product less (i) a return charge in the amount of 10% of the invoiced price and (ii) the original Delivery Charges. Certain Product as determined by Cellarcus may not be eligible for partial credit due to packing and storage requirements to maintain Product stability that cannot be assured during the return process, or the condition of the returned Product. Product of Non-conforming Shipment due to Customer error must be returned within ten (10) days of receiving a Return Authorization in the original packaging, unopened and unused. Customer is responsible for return shipping costs. This remedy is Customer’s sole and exclusive remedy and Cellarcus’s sole and exclusive liability for claims of Non-conforming Shipment due to Customer error and is in lieu of all other remedies or claims for damages which Customer may have against Cellarcus.
(c) In the case that Customer does not accept these Terms and Product is returned in accordance with this Section 12(c), Cellarcus will cancel the invoice for such Product, or if the applicable invoice has been paid by Customer, Cellarcus will issue a full refund. Product must be returned within ten (10) days of receiving a Return Authorization in the original packaging, unopened and unused. Customer is responsible for return shipping costs. This remedy is Customer’s sole and exclusive remedy and Cellarcus’s sole and exclusive liability for Product returned due to Customer disagreement with these Terms and is in lieu of all other remedies or claims for damages which Customer may have against Cellarcus.
- Custom Product. Cellarcus in its sole discretion may accept or reject a request to manufacture Custom Product. Customer’s placement of an Order for Custom Product is Customer’s agreement, representation and warranty that (i) Customer has all necessary rights and authority to disclose and provide to Cellarcus all materials, information, designs, plans and specifications for such Custom Product (“ Custom Specifications ”) for use in manufacture of such Custom Product for Customer, (ii) Customer hereby grants to Cellarcus any necessary rights to manufacture such Custom Product, (iii) there are no defects or hazards, latent or otherwise, with respect to the Custom Specifications, (iv) Cellarcus’s receipt and use of Custom Specifications and manufacture of such Custom Product for Customer and/or sale of such Custom Product to Customer does not infringe or misappropriate any intellectual property right of a third party, and (v) the manufacture and sale of such Custom Product complies with all applicable laws and regulations. Customer is solely responsible for all Custom Specifications. If Cellarcus makes a suggestion with respect to the Custom Specifications at Customer’s request or otherwise, Customer remains solely responsible for proper selection, application, processing and use of any Cellarcus suggestion to the Custom Specifications. Cellarcus in its sole discretion may accept or reject change requests submitted by Customer and Customer shall pay all incurred and additional costs of implementing any change requests including, without limitation, the cost of time and materials incurred prior to a change request, and the cost of fulfilling the change request.
- Limited Use License and Use Restrictions. Product is sold, transferred and licensed for use by Customer for in vitro activities, animal studies in laboratory settings and INTERNAL RESEARCH ONLY. No other right or license is granted to Customer, explicitly, by implication, by estoppel or otherwise. Product is not submitted for regulatory review, validated for diagnostic, prophylactic, therapeutic, or clinical use, safety and effectiveness, or any another other specific use or application unless expressly stated in the Technical Data Sheet. Customer is solely responsible for proper selection, application, processing and use of Product (including incorporation of Product into other product or modification of Product), and for adopting safety precautions as may be necessary. Customer is solely responsible for complying with, and shall handle and use Product and the results of using Product in conformity with (1) good laboratory practice, (2) all applicable laws, regulations and governmental policies, and (3) any necessary approvals, permissions, authorizations and/or licenses as may be required for Customer’s research and other intended uses, including any rights to use intellectual property rights of a third party.
As a material condition to Cellarcus providing its Product to Customer, Customer shall not, directly or indirectly, use the Product or its components (1) to modify Product or its components except for non-commercial in vitro INTERNAL RESEARCH USE (including animal studies in laboratory settings); (2) to provide a commercial service, or to provide commercially relevant information or data to a third party; (3) for diagnostic, prophylactic or therapeutic purposes; (4) for use on animals or humans for clinical diagnostic or drug purposes; (5) to attempt to reverse engineer, disassemble, or otherwise perform any compositional, structural, functional or other analyses directed to learning the methodology, components, formulae, sequence, processes, make-up, or production of any Product or any portion thereof; (6) for manufacturing; (7) for resale or transfer in any form to a third party; or (8) for any other commercial purpose. Any use of Product for diagnostic, prophylactic or therapeutic purposes, or any purchase of Product for resale (alone or as a component) or other commercial purpose, requires a separate license from Cellarcus.
- Export Controls. Customer shall comply with all applicable United States laws, regulations and rules, including, but not limited to, the Export Administration Regulations issued by the United States Department of Commerce applicable to Product and information that Customer receives from Cellarcus.
- Limited Warranty. Cellarcus warrants each Product will meet the specifications stated on the technical data sheet included with and covering the Product (“ Technical Data Sheet ”) when used appropriately under normal conditions (“Limited Warranty”). The Limited Warranty extends twelve (12) months after Product receipt (“Warranty Period”). If changes in the physical criteria of any Product are made, the description in the Technical Data Sheet provided with the Product will supersede the information contained in the Cellarcus Product catalog.
This Limited Warranty only covers issues caused by defects in material or workmanship when used under normal laboratory conditions. The Limited Warranty does not cover issues caused by any other reason, including but not limited to issues due to normal wear and tear, acts of God, misuse, limitations of technology, custom manufacture in accordance with Custom Specifications, neglect or accident caused by Customer, contact with improperly used or unapproved chemicals or environments, modification to the Product, or combination of Product with any other product unless expressly intended by the Technical Data Sheets.
Cellarcus agrees to replace Non-conforming Product free of charge or issue a credit of the invoiced price (exclusive of the original Delivery Charges) at Cellarcus’s sole discretion. Customer shall notify Cellarcus in writing of any Non-conforming Product and provide the reason for rejection within the Warranty Period. Any claims not received within the Warranty Period are waived and released. Customer shall return the Non-conforming Product pursuant to Section 12, paragraph 1. This remedy is Customer’s sole and exclusive remedy and Cellarcus’s sole and exclusive liability for claims of Non-conforming Product. This remedy is in lieu of all other remedies or claims for damages which Customer may have against Cellarcus.
the limited warranty IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PRODUCT IS SUPPLIED WITHOUT WARRANTY OF Merchantability, Fitness for a particular purpose, suitability, non-infringement, results obtained through the use of any product, VALIDITY OF ANY INTELLECTUAL PROPERTY RIGHTS, WHETHER ISSUED OR PENDING, VALIDITY OF ANY THIRD PARTY LICENSE RIGHTS, OR THE ABSENCE OF LATENT OR OTHER DEFECTS WHETHER OR NOT DISCOVERABLE; whether arising from a statute or otherwise in law or from a course of performance, dealing or usage of trade, all of which are hereby expressly disclaimed. Cellarcus’s LIMITED WARRANTY extends only to the original Purchasing Customer and cannot be transferred to any other party.
- Limitations on Remedies. IN NO EVENT WILL CELLARCUS BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, INDIRECT OR EXEMPLARY DAMAGES OF ANY KIND, OR LOST PROFITS OR REVENUE, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT CELLLARCUS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
NOTWITHSTANDING THE EXCLUSIVE REMEDIES SET FORTH IN SECTIONS 12, SECTION 16 AND 21 (e) WHICH APPLY TO THE SUPPLY OF PRODUCT, CELLARCUS’S TOTAL LIABILITY TO CUSTOMER ARISING FROM OR IN RELATION TO THESE TERMS, AN AGREEMENT BETWEEN THE PARTIES, OR PRODUCT, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO CELLARCUS DURING THE TWELVE (12) MONTH PERIOD PRECEDING A CLAIM FOR THE APPLICABLE PRODUCT GIVING RISE TO THE CLAIM. IN NO EVENT WILL Cellarcus BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS.
- Customer shall hold harmless, indemnify and defend (at Cellarcus’s request) Cellarcus for any and all damages, liabilities, costs and expenses (including any costs of litigation, including, without limitation, attorneys’ fees and any other costs and expenses), fines or losses in connection with any threatened or actual claims, actions, demands, investigations or suits, including, without limitation, claims or suits by third parties, arising out of any of the following: (a) Customer’s negligent or willful acts, or those of its employees and/or agents, (b) repair or modification of Product by persons other than Cellarcus, (c) modification of Product or combination of Product with any other product, including, without limitation, modification or combination resulting in the actual or alleged infringement of any intellectual property rights of any third party, (d) Customer’s selection, application, processing and use of Product, (e) Cellarcus’s use of Custom Specifications for manufacture of Custom Product, including, without limitation, actual or alleged infringement of any intellectual property rights of any third party, (f) from the manufacture, sale, transfer or use of Product produced by Cellarcus according to Customer’s Custom Specifications, including, without limitation, actual or alleged infringement of any intellectual property rights of any third party, (g) any violations of export control laws by Customer, or (h) Customer’s breach of any provision in these Terms.
- ” Confidential Information ” means (i) the Software and Documentation and (ii) any of Cellarcus’s business information, specifications and all related writings, drawings, designs and similar works, or any other information which is disclosed by Cellarcus to Customer whether orally or in writing, or to which Customer is exposed in any form. Confidential Information shall not include information which: (i) was in the public domain at the time it was disclosed by Cellarcus to Customer other than as a result of Customer’s (or any Representative’s) violation of any confidentiality obligation to Cellarcus; or (ii) enters the public domain through sources independent of Customer and through no breach of this provision by Customer or any of its Representatives.
All Confidential Information is the exclusive property of Cellarcus, and Cellarcus retains all of its rights, title and interests. Customer agrees to use Confidential Information only to the extent necessary to perform under this Agreement. Customer shall not disclose or provide any Confidential Information to any third party and shall take all necessary measures to prevent any such disclosure or any unauthorized use by its employees, agents, contractors or consultants (collectively, “Representatives”). Upon request of Cellarcus, Customer shall return all Confidential Information to Cellarcus.
All provisions relating to confidentiality shall survive the termination of an Order or this Agreement.
- Intellectual Property. Customer acknowledges that all intellectual property rights (patent, trademark, copyright, trade secret or otherwise) relating to Product and Technical Data Sheets, as between Customer and Cellarcus, are solely and exclusively owned by Cellarcus. Cellarcus’s sale or transfer of Product to Customer grants to Customer a limited non-transferable right (i) to use as authorized by these Terms the quantity of Product purchased under an Agreement, and (ii) to use the applicable Technical Data Sheet and content contained therein (e.g., protocols, validation data and images) for Customer’s authorized use of the Product. Except as expressly permitted by these Terms sale or transfer of Product to Customer does not grant Customer any other license rights to Cellarcus’s intellectual property, including, without limitation, no right to make or have made any Product or any portion thereof, and no right to reproduce, display, redistribute copies, create derivative works or otherwise use the Technical Data Sheets and content thereof. Any use of Product for diagnostic, prophylactic or therapeutic purposes, or any purchase of Product for resale (alone or as a component) or other commercial purpose, requires a separate license from Cellarcus. It is Customer’s sole responsibility to secure any required intellectual property rights.
Certain Products are covered by one or more trademarks of Cellarcus and/or a third party (“Trademark Information”). Cellarcus at its sole discretion may update from time-to-time the Trademark Information.
Cellarcus shall solely own all right, title and interest in and to any inventions (patentable or otherwise), discoveries, improvements, data, know-how or other results that are conceived, developed, discovered, reduced to practice, or generated by Cellarcus in performing under an Agreement and all intellectual property rights therein (“Inventions”). Customer hereby irrevocably assigns and transfers to Cellarcus, from the moment of creation, all of its rights, title and interests in and to Inventions and shall assist Cellarcus, at Cellarcus’s request and expense, in securisigng and recording Cellarcus’s rights in Inventions.
- Instruments, Software and Documentation.
(a) The terms set forth in this Section 21 apply only to the Instruments, Software and Documentation. In the event of a conflict between the terms set forth in this Section 21 and any of the other terms set forth in this Agreement, the terms set forth in this Section 21 shall control.
(b) License Grant. Subject to the terms set forth in these Terms, Cellarcus grants Customer a non-exclusive, non-transferable, royalty-free, revocable, perpetual license (without the right to grant sublicenses) to use the Software in object code only, solely in connection with the normal activities associated with using the Products for Customer’s internal research use only. Customer agrees to use the Software in accordance with the Documentation and all applicable laws, ordinances, rules and regulations. Cellarcus may terminate the license granted under this Section 21 (b) if Customer is in material breach of any of its obligations under this Agreement and fails to cure such breach within thirty (30) days of receipt of notice thereof from Cellarcus.
(c) Updates/Upgrades. While Cellarcus is not required to provide Customer with updates or upgrades to the Software, Cellarcus may, at its discretion, provide Customer with such updates or upgrades from time to time. This Agreement will govern any updates or upgrades provided by Cellarcus that replace and/or supplement the original Software, unless such update or upgrade is accompanied by a separate end user license agreement, in which case the terms of that end user license agreement will govern. If Customer decides not to download and use an upgrade or update provided by Cellarcus, Customer understands that (i) the warranty set forth in Section 21 (e) shall become null and void and (i) the Software could become unusable or unstable. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, ALL UPGRADES AND UPDATES TO THE SOFTWARE ARE PROVIDED “AS IS”.
(d) Intellectual Property/Restrictions of Use. Customer acknowledges and agrees that, as between Customer and Cellarcus, Cellarcus is the sole and exclusive owner of all right, title and interest in the Software and Documentation (including all intellectual property rights therein) and that no rights are granted by Cellarcus to such Software or Documentation or to intellectual property rights therein, except as expressly provided in this Agreement. Customer shall not, nor shall it permit any third party to: (i) use, copy, modify, translate or adapt the Software or Documentation other than as expressly permitted by this Agreement; (ii) rent, lease, share, disclose or transfer the Software, provide it on a subscription basis, or use it in connection with a service bureau or other configuration whereby any third party may use the Software, (iii) create any derivative works of or based on the Software or Documentation; (iv) reverse-engineer, decompile, disassemble or otherwise attempt to discern the source code of the Software; (v) remove, relocate, alter or obscure any trademark, copyright or other proprietary or restrictive marking or legend on the Software or Documentation or any copies thereof; or (vi) use, provide or disclose the Software in violation of any applicable laws, orders or regulations. Notwithstanding the foregoing, decompiling the Software is permitted solely to the extent the laws of Customer’s jurisdiction give Customer the right to do so to obtain information necessary to render the Software interoperable with other software; provided however that Customer must first request such information from Cellarcus and Cellarcus may, in its sole discretion, either provide information to Customer or impose reasonable conditions, including a reasonable fee, on such use of the Software to ensure that Cellarcus’s or its licensors’ proprietary rights in the Software are protected. Customer acknowledges and agrees that the immediately preceding sentence may not be applicable to third-party Software that is subject to a third party license, depending on the terms of such third-party license.
(e) Warranties/Out of Warranty Repairs.
(i) Sole Remedies. Customer’s sole remedy and Cellarcus’s exclusive liability for a breach of the limited warranty set forth in Section 21 (e)(i) shall be, at Cellarcus’s option, the repair or replacement of the non-conforming Instrument. Any claims not received within the Instrument Warranty Period are waived and released. Prior to returning an Instrument, Customer must contact Cellarcus’s technical support department. (Customer may be required to provide proof of date of purchase). Cellarcus’s technical support department will attempt to troubleshoot and resolve any non-conformities reported by Customer during the Instrument Warranty Period. If the problems cannot be resolved by Cellarcus’s technical support department, Cellarcus or its designee will issue a return authorization number. No Instruments will be accepted for return without the return authorization number. Customer will be responsible for repackaging the Instrument in a manner that fully protects it from damage during shipping and arranging for shipping to the location designated by Cellarcus. Cellarcus or its designee will provide a courier shipping account number that Customer may use to ship the Instrument to such location.
(ii) Exclusions. The limited warranty set forth in Section 21 (e)(i) and the repair warranty set forth in Section 21 (e)(iv) shall be void if (i) the Software is modified, repaired or reworked by anyone other than Cellarcus’s authorized personnel. The limited warranty shall not apply in the event any non-conformity arises from (i) usage of the Instrument and/or Software outside of Cellarcus’s instructions or in violation of safety warnings, or any other use of the Instrument or Software in any unlawful, improper or inappropriate manner or for any unlawful, improper or inappropriate purpose.
(f) WARRANTY DISCLAIMERS
EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 21 (e) ABOVE, THE INSTRUMENT, SOFTWARE, DOCUMENTATION AND ANY REPAIR SERVICES ARE PROVIDED “AS IS” AND Cellarcus DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE INSTRUMENT, SOFTWARE, DOCUMENTATION AND REPAIR SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; ANY WARRANTIES OF NON-INFRINGEMENT, TITLE OR SECURITY; ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE; OR ANY REPRESENTATIONS AS TO THE RELIABILITY, EFFECTIVENESS OR SAFETY OF THE INSTRUMENT, SOFTWARE, DOCUMENTATION OR REPAIR SERVICES.
Cellarcus DOES NOT WARRANT THAT THE SOFTWARE WILL BE FREE FROM VIRUS OR MALWARE ATTACK.
CELLARCUS DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT CUSTOMER’S USE OF OR THE PERFORMANCE OF THE SOFTWARE AND RELATED INFORMATION AND DOCUMENTATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED, OR THAT CUSTOMER’S USE OF THE SOFTWARE AND DOCUMENTATION WILL GENERATE ACCURATE, RELIABLE, TIMELY RESULTS, INFORMATION, MATERIAL OR DATA.
CUSTOMER’S USE OF THE SOFTWARE AND DOCUMENTATION IS AT CUSTOMER’S OWN RISK AND DISCRETION. CUSTOMER IS SOLELY RESPONSIBLE FOR (AND Cellarcus DISCLAIMS) ANY AND ALL LOSS, LIABILITY OR DAMAGES, INCLUDING TO CUSTOMER’S ELECTRICAL SYSTEM, COMPUTERS OR OTHER PERIPHERALS CONNECTED TO THE SOFTWARE RESULTING FROM CUSTOMER’S MISUSE OF THE SOFTWARE. CUSTOMER IS RESPONSIBLE FOR COMPLYING WITH ANY SAFETY WARNINGS AND PRECAUTIONS THAT ACCOMPANY THE INSTRUMENT.
(g) Indemnification. Customer shall indemnify and hold Cellarcus harmless from and against all damages, liabilities, costs and expenses in connection with any threatened or actual claims, actions, demands, investigations or suits by third parties arising out of (i) a breach by Customer of the terms of this Agreement, (ii) any use of the Software by Customer, its employees, contractors or agents outside of Cellarcus’s instructions or in violation of safety warnings or (iii) any other use of the Instrument and/or Software by Customer or its employees, contractors or agents, in an unlawful, improper or inappropriate manner or for any unlawful, improper or inappropriate purpose.
- Customer shall acknowledge the source of Product as scientifically appropriate in any academic or scientific publications.
- Force Majeure. Cellarcus shall not be liable for any failure to perform under any Agreement when such failure is due to circumstances beyond its control. Circumstances beyond the control of Cellarcus include, without limitation, acts of God, governmental action, accidents, labor trouble, and inability to obtain materials, equipment or transportation.
- No oral statements, recommendations and assistance given by a Technical Support Scientist or other Cellarcus representative or authorized distributor of Cellarcus to Customer or its representatives in connection with the manufacture, supply or use of Product constitute a waiver by Cellarcus of any of the provisions hereof, or affect Cellarcus’s liability herein. Cellarcus’s failure to exercise any rights under any Agreement is not a waiver of it rights to damages for Customer’s breach of contract and is not a waiver of any subsequent breach.
- Governing Law, Forum, Venue and Consent to Jurisdiction. These Terms, the purchase, sale and transfer of Product, and any dispute or controversy relating to any Agreement are governed and construed according to the laws of the State of California, without regard to provisions on the conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods does not apply to any Agreement.
Customer shall bring any cause of action arising out of or relating to these Terms or any Agreement, or to Product received from Cellarcus, its affiliates and its distributors in the state or federal courts of the State of California. Customer hereby irrevocably submits to the exclusive jurisdiction (including personal jurisdiction) of the state and federal courts in the State of California to resolve any dispute or controversy with Cellarcus, its affiliates or its distributors arising out of or relating to these Terms or any Agreement, or to Product purchased from Cellarcus. Customer agrees not to raise any objection at any time to forum non conveniens and irrevocably waives the right to object to the jurisdiction of the state and federal courts of the State of California.
Any cause of action brought by Customer arising out of or relating to these Terms or any Agreement, or to Product received from Cellarcus, its affiliates and its distributors must be brought within one year after such cause of action arose. Actions not commenced by Customer within one year are permanently barred. This paragraph survives expiration or termination of any Agreement.
- All provisions of these Terms regarding warranty, confidential information, indemnification, liability, governing law, forum, venue, jurisdiction, and any other provisions that survive by their terms will survive any termination or expiration of any Agreement pursuant to their terms. If any provision or portion thereof of these Terms or any Agreement is held to be illegal, invalid or unenforceable, the same will not invalidate any other portion of these Terms or any Agreement, and these Terms or any Agreement will be construed as if such provision or portion thereof had never been contained in these Terms or the Agreement. Customer and Cellarcus are independent contractors under these Terms and any Agreement. Customer may not assign, including by operation of law, its obligations under these Terms or any Agreement without Cellarcus’s prior written consent.