Product Terms of Sale
IMPORTANT – READ CAREFULLY: USE OF CELL SIGNALING TECHNOLOGY, INC. (“CST”) PRODUCTS IS SUBJECT TO THE AGREEMENT BELOW. BY PURCHASING CST PRODUCTS YOU ACCEPT THE TERMS OF THIS AGREEMENT WITH CST. 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.
- Agreement. These are the standard terms and conditions (“Terms”) under which Cell Signaling Technology, Inc. (“CST”) sells and otherwise transfers (i) CST off-the-shelf catalog products (“Catalog Product”), (ii) off-the-shelf catalog products manufactured according to current generally recognized manufacturing procedures (“GMP Catalog Product”), (iii) products manufactured according to Customer’s specifications, including bulk and custom formulation, in accordance with current generally recognized manufacturing procedures (“Custom GMP Product”), (iii) products (other than Custom GMP Product) manufactured according to Customer’s specifications, including bulk and custom formulation (“Custom Product”); and (iv) CellSimple™ cell analyzers (“Instruments”). Catalog Product, GMP Catalog Product, Custom GMP Product, Custom Product and Instruments 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 CST with the Instrument; any and all software programs or applications and associated files provided that are incorporated, embedded or otherwise provided by CST with the Instrument; all modified versions of and upgrades or improvements to such programs provided by CST (such as those provided via web-based updates); and all copies of such programs and files. “Documentation” means the documentation provided by CST in connection with the Instrument and/or Software. These Terms apply to any person or entity purchasing or otherwise receiving Product directly or indirectly from CST, a CST affiliate or a CST 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 CST’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 CST’s Customer Service as provided at http://www.cellsignal.com/common/content/content.jsp?id=resources-tech-support.
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 CST (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. An Agreement represents the entire agreement between Customer and CST regarding Product and supersedes and replaces any previous course of dealing, course of performance, or trade usage and any previous agreements between Customer and CST (whether written or oral), unless there is an applicable Inter-Company Agreement. 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 CST expressly objects, and are not terms of any Agreement to which CST is bound.CST reserves the right to change these Terms at any time. Any change to these Terms will not apply to an Agreement for any Order CST received before the change is in effect. The most recent revision date can be found at the end of these Terms.
CST in its sole discretion may from time-to-time enter into a separately negotiated written agreement executed by a duly authorized representative of CST 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.
- Ordering. CST provides several methods for submitting Orders for Product: Internet, electronic, e-mail, facsimile and telephone. For specific information on how to place an order, please visit CST online at http://www.cellsignal.com/about/orderInformation.jsp. An Order shall set forth identification and quantity of the desired Product(s) and Custom Specifications for Custom GMP Product and 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 CST’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 CST 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 GMP Product Orders and Custom Product Orders are not eligible for cancellation after twenty four (24) hours from CST’s receipt of an Order.
- Order Acceptance. All Orders are subject to acceptance by CST either in writing or by shipping Product. CST may accept any Order in whole or in part. CST 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 CST. CST 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 CST and are not terms of any Agreement to which CST is bound.
- Shipping and Delivery. Shipments are made in accordance with CST’s standard commercial practices via a common carrier selected by CST. CST shall not assume any liability in connection with the shipment nor will the carrier be construed to be an agent of CST. All shipments are subject to availability and partial shipments are permissible. Shipment schedules are approximate and CST will use commercially reasonable efforts to complete shipments as indicated. CST 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. CST 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 CST’s facility. Risk of loss for all Products transfer to Customer upon CST’s placement of the Product with the carrier. Customer shall pay or reimburse CST 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 CST pursuant to Section 12.
- Title. Title to Product transfers to Customer upon CST’s placement of the Product with the carrier, subject to payment in full and the limitations provided in these Terms and any Agreement.
- Price. The price of Catalog Product is CST’s standard U.S. list price in effect on the date the Order is received, unless otherwise agreed to in writing by CST. GMP Catalog Product, Custom GMP Product, 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.
- Tax. Sales tax will be added when shipping to jurisdictions where CST is responsible for collecting sales tax unless the receiving party has valid exempt information on file with CST. Customer is solely responsible for any other applicable Taxes and agrees to indemnify CST 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 CST to correct or update its account information and to note any updates to this effect on applicable Orders.
- Payment. Customer shall pay for all Product ordered by Customer pursuant to an Order accepted by CST. 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, CST 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 CST in collecting any delinquent balance.
- Inspection. Within ten (10) days after Customer’s receipt of a Product shipment (other than an Instrument shipment, which is covered under Section 22 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.
- Returns. Product (other than Instruments, which are covered under Section 22 below) may be eligible for return by Customer at CST’s discretion and in accordance with the requirements of this Section 12. For all returns, a return authorization must be obtained from CST’s Customer Service or the “Technical Support Scientist” of your local CST office or nearest distributor (listed at http://www.cellsignal.com/common/content/content.jsp?id=ourApproach-our-guarantee) (“Return Authorization”), and Customer shall follow any other reasonable instructions provided by CST. CST will not accept returns, and no replacement or credit will be issued or invoice canceled, without a Return Authorization. If requested by CST, Customer shall make Product available for inspection by CST or its agent. Custom Orders are not eligible for return. Claims for Non-conforming Shipment must be made in writing to CST 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 CST within ten (10) calendar days following receipt of Product and Product returned as set forth below in this Section 12(c).
- In the case of error by CST in fulfilling an Order, return of Product of Non-conforming Shipment is at CST’s cost and CST at its sole discretion will replace the Product of Non-conforming Shipment or issue a full credit. Product of Non-conforming Shipment due to CST 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 CST’s sole and exclusive liability for claims of Non-conforming Shipment due to CST error and is in lieu of all other remedies or claims for damages which Customer may have against CST.
- 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 CST’s sole discretion. CST does not issue full credit for returned Product of Non-conforming Shipment due to Customer error because Product is perishable and CST 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 CST 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 CST’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 CST.
- In the case that Customer does not accept these Terms and Product is returned in accordance with this Section 12(c), CST will cancel the invoice for such Product, or if the applicable invoice has been paid by Customer, CST 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 CST’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 CST.
- Custom GMP Product and Custom Product. CST in its sole discretion may accept or reject a request to manufacture Custom GMP Product or Custom Product. Customer’s placement of an Order for Custom GMP Product or Custom Product is Customer’s agreement, representation and warranty that (i) Customer has all necessary rights and authority to disclose and provide to CST all materials, information, designs, plans and specifications for such Custom GMP Product or Custom Product (“Custom Specifications”) for use in manufacture of such Custom GMP Product or Custom Product for Customer, (ii) Customer hereby grants to CST any necessary rights to manufacture such Custom GMP Product or Custom Product, (iii) there are no defects or hazards, latent or otherwise, with respect to the Custom Specifications, (iv) CST’s receipt and use of Custom Specifications and manufacture of such Custom GMP Product or Custom Product for Customer and/or sale of such Custom GMP Product or 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 GMP Product or Custom Product complies with all applicable laws and regulations. Customer is solely responsible for all Custom Specifications. If CST 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 CST suggestion to the Custom Specifications. CST 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 CST 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 CST.
- 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 CST.
- Limited Warranty. CST 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 and as set forth in the CST Antibody Performance Guarantee found at http://www.cellsignal.com/common/content/content.jsp?id=ourApproach-our-guarantee (“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 CST 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.
CST agrees to replace Non-conforming Product free of charge or issue a credit of the invoiced price (exclusive of the original Delivery Charges) at CST’s sole discretion. Customer shall notify CST 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 CST’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 CST.
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. CST’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 CST 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 CST WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.NOTWITHSTANDING THE EXCLUSIVE REMEDIES SET FORTH IN SECTIONS 12, SECTION 16 AND 22(e) WHICH APPLY TO THE SUPPLY OF PRODUCT, CST’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 CST DURING THE TWELVE (12) MONTH PERIOD PRECEDING A CLAIM FOR THE APPLICABLE PRODUCT GIVING RISE TO THE CLAIM. IN NO EVENT WILL CST BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS.
- Indemnification. Customer shall hold harmless, indemnify and defend (at CST’s request) CST 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 CST, (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) CST’s use of Custom Specifications for manufacture of Custom GMP Product or 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 CST 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.
- Confidentiality. “Confidential Information” means (i) the Software and Documentation and (ii) any of CST’s business information, specifications and all related writings, drawings, designs and similar works or any other information which is disclosed by CST to Customer and labeled or marked as confidential, proprietary or its equivalent, or oral or visual information that is designated confidential, proprietary or its equivalent at the time of its disclosure. All Confidential Information is the exclusive property of CST, and CST retains all of its rights, title and interests. Customer agrees to use Confidential Information for the exclusive purpose of performing under any 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 by its employees, agents, contractors or consultants. Upon request of CST, Customer shall return all Confidential Information to CST.
- 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 CST, are solely and exclusively owned by CST. CST’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 CST’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 CST. It is Customer’s sole responsibility to secure any required intellectual property rights.Certain Products are covered by one or more trademarks of CST and/or a third party as set forth at http://www.cellsignal.com/contents/about-us/trademark-information/aboutus-trademark-information (“Trademark Information”). CST at its sole discretion may update from time-to-time the Trademark Information.
CST 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 CST in performing under an Agreement and all intellectual property rights therein (“Inventions”). Customer hereby irrevocably assigns and transfers to CST, from the moment of creation, all of its rights, title and interests in and to Inventions and shall assist CST, at CST’s request and expense, in securing and recording CST’s rights in Inventions.
- GMP Product. The terms set forth in this Section 21 apply only to GMP Catalog Product and GMP Custom Product (collectively “GMP Product”). 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. CST sells GMP Product as class 1 Analyte Specific Reagent (“ASR”) product. CST warrants that, at the time of shipment, its ASR product has been manufactured and tested according to its specifications in accordance with current Good Manufacturing Practices. However, as required under FDA regulations, CST does not validate or verify any test performance specifications concerning an ASR product. CST will not provide instructions for any ASR product with respect to analytical or clinical performance; however, instructions for storage and handling of an ASR product will be provided. Scientific information may be included on chemical/molecular composition, nucleic acid sequence, binding affinity, cross-reactivities, known mutations associated with the sequence, and interaction with substances of known clinical significance, as needed. All CST ASR products will be labeled “Analyte Specific Reagent. Analytical and performance characteristics are not established.”Limited Use License and Use Restrictions. As a material condition to providing GMP Product, the end-user of the ASR product will only be (i) in vitro diagnostic manufacturers; (2) Clinical laboratories regulated under the Clinical Laboratory Improvement Amendments of 1988 (CLIA), as qualified to perform high complexity testing under 42 CFR part 493 or clinical laboratories regulated under VHA Directive 1106 (available from Department of Veterans Affairs, Veterans Health Administration, Washington, DC 20420); or (3) Organizations that use the reagents to make tests for purposes other than providing diagnostic information to patients and practitioners, e.g., forensic, academic, research, and other nonclinical laboratories.
All CLIA-regulated laboratory end-users shall include the following language on any test report that was developed in an in-house test using a CST ASR product: “This test was developed and its performance characteristics determined by [Laboratory Name]. It has not been cleared or approved by the U.S. Food and Drug Administration.” End-users also agree that in-house tests developed using a CST ASR product may be ordered only by physicians and other persons authorized by applicable state law to order such tests.
End-users agree that an ASR is intended as a building-block for the development of laboratory tests and not as a test itself. End-users shall make no claims about an ASR itself and shall not promote the use of an ASR with any other products or materials.
CST hereby grants to the purchasing end-user a non-exclusive license under CST owned rights to use purchased amounts of GMP Product for the uses expressly permitted in the preceding three paragraphs. Customer hereby represents and warrants that it is the end-user of the GMP Product and that its employees and agents will use the GMP Product directly as permitted by in the preceding three paragraphs and in strict compliance with all applicable laws and regulations, now and hereinafter enacted. CST does not represent or warrant that the use or sale of the GMP Product supplied hereunder will not infringe the claims of any United States or other patents covering the GMP Product itself or the use thereof in combination with other products or in the operation of any process. Customer hereby agrees that it has any other third party intellectual property rights necessary to use the GMP Product.
Notwithstanding the foregoing, if Customer undertakes the necessary testing and evaluation, follows the appropriate regulatory requirements and receives all required regulatory clearances or approvals, Customer may incorporate an ASR into an in vitro diagnostic device and may make any appropriate and approved analytical or performance claims for the resulting device. CST takes no responsibility for the use or promotion of its GMP Products in this manner. Any use of GMP Product for Investigational Use Only (“IUO”), or for clinical diagnostic, prophylactic or therapeutic purposes, requires a separate license from CST. It is Customer’s sole responsibility to secure any other necessary CST or third party intellectual property rights.
- Instruments, Software and Documentation.
- The terms set forth in this Section 22 apply only to the Instruments, Software and Documentation. In the event of a conflict between the terms set forth in this Section 22 and any of the other terms set forth in this Agreement, the terms set forth in this Section 22 shall control.
- License Grant. Subject to the terms set forth in these Terms, CST 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 operation of the Instrument 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. CST may terminate the license granted under this Section 22(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 CST.
- Updates/Upgrades. While CST is not required to provide Customer with updates or upgrades to the Software, CST may, at its discretion, provide Customer with such updates or upgrades from time to time if Customer has registered the Software at www.cellsignal.com/cellsimple or at such other website as may be designated from time to time by CST. This Agreement will govern any updates or upgrades provided by CST 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 CST, Customer understands that (i) the warranty set forth in Section 22(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”.
- Intellectual Property/Restrictions of Use. Customer acknowledges and agrees that, as between Customer and CST, CST 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 CST 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 CST and CST 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 CST’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.
- Warranties/Out of Warranty Repairs.
- CST warrants solely to the Customer who purchases the Instrument from CST or its authorized distributor that for a period of twelve (12) months from the date of delivery (or such other minimum period as may be required by applicable law) (“Instrument Warranty Period”), the Instrument (excluding the Software) will be free from defects in materials and workmanship when used in accordance with this Agreement and (ii) the Software provided by CST at the time of delivery of the Instrument will substantially conform to the specifications set forth in the Documentation, when used in accordance with this Agreement.
- Sole Remedies. Customer’s sole remedy and CST’s exclusive liability for a breach of the limited warranty set forth in Section 22(e)(i) shall be, at CST’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 CST’s technical support department. (Customer may be required to provide proof of date of purchase). CST’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 CST’s technical support department, CST 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 CST. CST or its designee will provide a courier shipping account number that Customer may use to ship the Instrument to such location.
- Exclusions. The limited warranty set forth in Section 22(e)(i) and the repair warranty set forth in Section 22(e)(v) shall be void if (i) the Software or Instrument is modified, repaired or reworked by anyone other than CST’s authorized personnel; (ii) the battery is removed from the Instrument by anyone other than CST’s authorized personnel; or (iii) the Instrument is subjected to abnormal stress, improper power supply or electrical connection, power surges or fluctuations, extreme heat or cold, corrosive environments, neglect, or liquid contact. The limited warranty shall not apply in the event any non-conformity arises from (i) usage of the Instrument and/or Software outside of CST’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; (ii) the negligence or intentional misconduct of any user of the Instrument or Software; or (iii) flood, earthquake, or any other natural disaster. The limited warranty does not apply to cosmetic damage, including but not limited to scratches, dents, breakage or damage caused by normal wear and tear. For clarity, the limited warranty set forth in Section 22(e) does not apply to any upgrades, updates enhancements or modifications to the Software that may be provided by CST after the initial delivery of the Instrument.
- Extended Warranty. At the time of purchase or at any time during the six (6) month period following the delivery of the Instrument to Customer, Customer may purchase a one-year or a two-year extended warranty from CST, at the price set forth in the initial Quote. If Customer purchases the extended warranty, the Instrument Warranty Period shall be extended for one year or two years, as applicable.
- Out of Warranty Repairs. At its option, CST or its designee may elect to perform out-of-warranty repairs on Instruments, subject to CST or its designee’s then-current rates. No out-of-warranty repairs will be performed by CST or its designee without Customer’s written authorization. CST represents and warrants solely to Customer that all out-of-warranty repairs (“Repair Services”) will be performed in a professional and workmanlike manner and that all materials provided in connection with such Repair Services shall be free from defects in materials and workmanship. This limited warranty will be in effect for a period of six (6) months from the date of delivery (“Repair Warranty Period”). Customer’s sole remedy and CST’s exclusive liability for a breach of the limited warranty set forth in this Section 22(e)(v) shall be the repair or replacement of the non-conforming Instrument and/or Software in accordance with the return procedures described in Section 22(e)(iii) above. Any claims not received within the Repair Service Warranty Period are waived and released.
- WARRANTY DISCLAIMERSEXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 22(e) ABOVE, THE INSTRUMENT, SOFTWARE, DOCUMENTATION AND ANY REPAIR SERVICES ARE PROVIDED “AS IS” AND CST 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.
CST DOES NOT WARRANT THAT THE SOFTWARE WILL BE FREE FROM VIRUS OR MALWARE ATTACK.
CST 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 INSTRUMENT, SOFTWARE AND DOCUMENTATION IS AT CUSTOMER’S OWN RISK AND DISCRETION. CUSTOMER IS SOLELY RESPONSIBLE FOR (AND CST DISCLAIMS) ANY AND ALL LOSS, LIABILITY OR DAMAGES, INCLUDING TO CUSTOMER’S ELECTRICAL SYSTEM, COMPUTERS OR OTHER PERIPHERALS CONNECTED TO THE INSTRUMENT OR SOFTWARE RESULTING FROM CUSTOMER’S MISUSE OF THE INSTRUMENT OR SOFTWARE. CUSTOMER IS RESPONSIBLE FOR COMPLYING WITH ANY SAFETY WARNINGS AND PRECAUTIONS THAT ACCOMPANY THE INSTRUMENT.
CST IS NOT RESPONSIBLE FOR (I) CUSTOMER’S FAILURE TO FOLLOW SAFETY WARNINGS, PRECAUTIONS OR OTHER INSTRUCTIONS PROVIDED WITH THE INSTRUMENT AND/OR SOFTWARE; (II) CUSTOMER’S NEGLIGENCE IN USE OF THE INSTRUMENT AND/OR SOFTWARE OR (III) CUSTOMER’S INTENTIONAL MISUSE OF THE INSTRUMENT OR SOFTWARE.
- Indemnification. Customer shall indemnify and hold CST 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 Instrument and/or Software by Customer, its employees, contractors or agents outside of CST’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.
- Acknowledgement. Customer shall acknowledge the source of Product as scientifically appropriate in any academic or scientific publications.
- Force Majeure. CST 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 CST include, without limitation, acts of God, governmental action, accidents, labor trouble, and inability to obtain materials, equipment or transportation.
- Waiver. No oral statements, recommendations and assistance given by a Technical Support Scientist or other CST representative or authorized distributor of CST to Customer or its representatives in connection with the manufacture, supply or use of Product constitute a waiver by CST of any of the provisions hereof, or affect CST’s liability herein. CST’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 Commonwealth of Massachusetts, 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 CST, its affiliates and its distributors in the state or federal courts of the Commonwealth of Massachusetts. Customer hereby irrevocably submits to the exclusive jurisdiction (including personal jurisdiction) of the state and federal courts in the Commonwealth of Massachusetts to resolve any dispute or controversy with CST, its affiliates or its distributors arising out of or relating to these Terms or any Agreement, or to Product purchased from CST. 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 Commonwealth of Massachusetts.
Any cause of action brought by Customer arising out of or relating to these Terms or any Agreement, or to Product received from CST, 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.
- Miscellaneous. 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 CST 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 CST’s prior written consent.