Welcome to our site! This document is a legally binding agreement between you as the user(s) of the site (referred to as "you", "your" or "User" hereinafter) and Clinivex Enterprises Inc.
a) “Agreement” means these Terms and Conditions of Sale.
b) “Confidential Information” means all non-public proprietary and/or confidential information including, but not limited to, manufacturing sources of products (including the manufacturer name, manufacturer site, origin information, and other source information (including as disclosed through survey requests); facility, equipment, or service suppliers; design, procurement, security, qualification, maintenance, and supply chain information; findings from audits of CLINIVEX ENTERPRISES INC.’s suppliers; Product or Services specifications, drawings, or prototypes; standard operating policies, procedures, and training; pricing; computer network and software systems or other technology information; business and or marketing plans; financial data; customer contact information (and other customer material or data); non-public intellectual property; and organization or personnel information.
c) “Customer” means any person or entity purchasing Products or Services from CLINIVEX ENTERPRISES INC., either directly or through its employees or other individuals.
d) “Products” means the goods that CLINIVEX ENTERPRISES INC. provides to Customer and is comprised of Manufactured Products and Sourced Products: i) “Manufactured Products” means: (1) “Custom Products” means those products that are assembled (i.e., with respect to clinical laboratory or science education materials kits) or manufactured by CLINIVEX ENTERPRISES INC. to the written specifications (e.g., relating to the components, raw materials, stability, manufacture, testing, storage, handling, labeling, packaging, and/or shipping of the product) provided by Customer and agreed upon by CLINIVEX ENTERPRISES INC.; and (2) “Self-Manufactured Products” means those products manufactured by certain of CLINIVEX ENTERPRISES INC. International, LLC’s subsidiaries and affiliated entities, excluding Custom Products. ii) “Sourced Products” means: (1) “Core Products” means those products from third-party suppliers with whom CLINIVEX ENTERPRISES INC. has an established supply chain agreement generally covering delivery terms, warranty, pricing, and stocking. These products are generally available on CLINIVEX ENTERPRISES INC.’s websites or in CLINIVEX ENTERPRISES INC. catalogs, and may include customer-specific products and spot-buys from customers of Core Products within a given product line that are therefore subject to the established supply chain agreement with the supplier of Core Products as referenced above; and (2) “Market Source Products” (also referred to as “Third-Party Products”) means those products from third-party suppliers that are not Core Products or products not covered under the established supply chain agreements referenced in the definition of Core Products. Market Source Products may be designated as Market Source on CLINIVEX ENTERPRISES INC.’s website, viewable online only by a specific customer, or be in the form of a spot-buy or purchase through CLINIVEX ENTERPRISES INC.’s “Click to Source” or “Open Requisition” program.
e) “Services” means work performed by employees or subcontractors of CLINIVEX ENTERPRISES INC. for Customer in accordance with a Scope of Work or similar order instrument that details the work and fees associated with a services engagement (each, an “SOW”). CLINIVEX ENTERPRISES INC.’s Services offerings may include, but are not limited to: equipment and instrument services, scientific services, laboratory and production support, procurement, vendor managed inventory, kit assembly and ancillary supply site distribution services, and supply chain management.
f) “Taxes” means any and all applicable taxes, duties, fees, levies, or other assessments imposed or collected by any governmental entity worldwide or any political subdivision thereof, however designated or levied, on sales of Products or Services, or sales, use, transfer, goods, and services or value added tax or any other duties or fees related to any Customer payment made to CLINIVEX ENTERPRISES INC. for CLINIVEX ENTERPRISES INC.’s provision of Products and/or Services to Customer under or pursuant to this Agreement; exclusive, however, of any taxes imposed upon the net income or capital of CLINIVEX ENTERPRISES INC., any taxes in lieu of such net income taxes, and any other taxes that are to be borne by CLINIVEX ENTERPRISES INC. under applicable law.
g) “CLINIVEX ENTERPRISES INC” utilizing these Terms and Conditions of Sale on their websites,
1) Quotation forms, and/or invoices.
2) Agreement Terms;
Acceptance by Customer. CLINIVEX ENTERPRISES INC. RESERVES THE RIGHT TO ACCEPT OR REJECT ANY ORDER, TO TERMINATE THIS AGREEMENT, OR TO CHANGE THESE TERMS AND CONDITIONS OF SALE, WITHOUT NOTICE TO CUSTOMER, AT ANY TIME FOR ANY REASON, AND RECEIPT BY CUSTOMER OF A CLINIVEX ENTERPRISES INC. QUOTATION, PRICE LIST, OR CATALOG DOES NOT CONSTITUTE AN OFFER TO SELL. ALL SALES BY CLINIVEX ENTERPRISES INC. ARE SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND EXPRESSLY CONDITIONED UPON CUSTOMER'S ASSENT THERETO. CUSTOMER WILL BE DEEMED TO HAVE ACCEPTED THESE TERMS AND CONDITIONS BY ISSUING A PURCHASE ORDER OR BY ANY OTHER STATEMENT (INCLUDING, WITHOUT LIMITATION, VIA E-MAIL), ACT, COURSE OF CONDUCT, DEALING, OR PERFORMANCE CONSTITUTING ACCEPTANCE UNDER APPLICABLE LAW, INCLUDING, WITHOUT LIMITATION, FAILURE TO OBJECT IN WRITING TO THESE TERMS AND CONDITIONS WITHIN A REASONABLE TIME OR BY ACCEPTANCE OF AND/OR PAYMENT FOR THE PRODUCTS OR SERVICES. ALL PURCHASE ORDERS OR SIMILAR ORDER INSTRUMENTS ISSUED BY CUSTOMER WILL BE GOVERNED ONLY BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND ANY ADDITIONAL AND/OR INCONSISTENT TERMS AND CONDITIONS SET FORTH IN ANY ACKNOWLEDGMENT, PURCHASE ORDER, OR ACCEPTANCE DOCUMENTS REQUESTED FROM AND/OR PROVIDED BY Updated December 2018 CUSTOMER ARE EXPRESSLY REJECTED. NEITHER CLINIVEX ENTERPRISES INC.’S DELIVERY OF THE PRODUCTS NOR PROVISION OF THE SERVICES NOR ANY OTHER ACTION, CONDUCT, OR PERFORMANCE SHALL CONSTITUTE ACCEPTANCE OF TERMS OR CONDITIONS DIFFERENT FROM THE TERMS AND CONDITIONS OF THIS AGREEMENT.
Domestic delivery of all Products will be FCA Origin Dock , and title and risk of loss in all Products will transfer to Customer upon CLINIVEX ENTERPRISES INC.'s delivery of such Products to the carrier or agent at CLINIVEX ENTERPRISES INC.’s or CLINIVEX ENTERPRISES INC.’s supplier’s facility, as applicable, regardless of the freight term specified for transportation purposes. Unless otherwise agreed to by CLINIVEX ENTERPRISES INC. in writing, CLINIVEX ENTERPRISES INC. reserves the right to choose the carrier, forwarding company, and means of transport. Where and to the extent permitted by applicable law, shipping and handling fees, special packaging materials, carrier surcharges (including, without limitation, fuel surcharges), shipping palettes, environment-controlled shipping, and/or hazardous material fees imposed by government regulation will be added separately to the invoice. Customer acknowledges that CLINIVEX ENTERPRISES INC. may refer to shipping and other fees on CLINIVEX ENTERPRISES INC.’s invoices as “freight,” “handling fees,” “expense recovery,” or similar terms. The shipping and other fees that CLINIVEX ENTERPRISES INC. charges may not be limited to CLINIVEX ENTERPRISES INC.’s actual transportation costs and may include other shipping and handling costs. Shipping and/or delivery dates set forth in a CLINIVEX ENTERPRISES INC. quotation or order acknowledgement are based on estimates at the time of the quotation or order acknowledgement. CLINIVEX ENTERPRISES INC. shall use commercially reasonable efforts to ship the Products in accordance within the shipping and/or delivery dates, provided that the foregoing will not constitute a guaranty of compliance with the quoted shipping and/or delivery dates, and CLINIVEX ENTERPRISES INC. will not be liable for any direct or indirect costs or damages incurred by Customer or any third party, including, without limitation, incidental or consequential damages, resulting from late deliveries.
4) Damaged Shipments;
Inspection. Customer shall immediately inspect all deliveries for shipping damage upon receipt. If any external damage is noticed, Customer shall accept the shipment only after the driver has noted the damage on both carrier’s and Customer’s copies of the delivery receipt and Customer has requested an inspection by the carrier. Customer shall keep all containers and packing material for inspection. Customer shall promptly inspect all shipments for concealed shipping damage, defects, or shortages, notify CLINIVEX ENTERPRISES INC. of any such damage, defect, or shortage, and cooperate with CLINIVEX ENTERPRISES INC. in arranging an inspection by the carrier and the filing of a freight claim as applicable; provided that on all sales where Customer arranges transportation, in the event of loss or damage in transit, Customer should file its own claim with the carrier. With respect to shipping damage, Customer must contact CLINIVEX ENTERPRISES INC. to request inspection within twenty four (24) hours of delivery or unconditionally waive any right to make any claim relating to the damaged Products, including, without limitation, under the warranty set forth herein. With respect to other claims, Customer’s failure to notify CLINIVEX ENTERPRISES INC. within thirty (30) days of delivery (or Customer’s non-receipt the Products in the case of non-delivery) of defects or shortages reasonably discoverable upon proper inspection will be deemed an unconditional waiver of any right to make any claim relating to the defective or missing Products, including, without limitation, under the warranty set forth herein.
5) Export Shipment Terms.
Unless otherwise agreed to by CLINIVEX ENTERPRISES INC. in writing, delivery of orders by CLINIVEX ENTERPRISES INC. exports. Customer will have fifteen (15) days to pick up the order after being notified by CLINIVEX ENTERPRISES INC. of freight availability at CLINIVEX ENTERPRISES INC.’s designated Named Place, after which CLINIVEX ENTERPRISES INC. reserves the right to assess and bill Customer for storage fees, including but not limited to demurrage. For routed exports, where Customer’s nominated freight forwarder is used, all claims for damage will be the responsibility of Customer.
a) Products. Unless explicitly specified in a written price quotation, all prices and Product specifications are subject to change without prior notice to Customer. CLINIVEX ENTERPRISES INC. price quotations are valid for the period specified on the quotation; provided, however, that quoted pricing is subject to adjustment based on shipment arrangements or other terms and conditions which were not part of CLINIVEX ENTERPRISES INC.’s original price quotation. If CLINIVEX ENTERPRISES INC. has not provided a price quotation, pricing will be determined based on the Product price published on CLINIVEX ENTERPRISES INC.’s website at the time of the order. For orders for Manufactured Products placed prior to any annual price change with shipment occurring after such annual price change, CLINIVEX ENTERPRISES INC. reserves the right to change its price to Customer to the current Product price as of the date of shipment.
b) Fixed-Price Services. The price to Customer for fixed-price Services will be as set forth in the respective SOW. unless otherwise expressly stated in each applicable SOW:
(i) all Service fees are quoted on a monthly basis, and Customer shall pay such Service fees regardless of temporary planned or unplanned Customer site closures; (ii) all prices stated in the SOW will be subject to an annual review and increase, effective January 1 of each calendar year for the duration of the Services engagement; and (iii) overtime that is approved by Customer will be billed to Customer at the hourly overtime rate set forth in the applicable SOW. All monthly Services fees are due in full regardless of whether CLINIVEX ENTERPRISES INC. on-site employees or subcontractors were present at Customer’s site(s) each day (or each hour of each day) for the applicable month that is being invoiced, provided that the Services in any applicable SOW have otherwise been materially performed. Additional Services or change in scope in any applicable SOW(s) may require additional resources to meet the appropriate service level. In the event that additional resources are needed, the parties will review the applicable SOW and negotiate the scope of the Services performed and/or any Services cost increase. The fees and charges for any follow-on or additional work not described in the applicable SOW will be performed at CLINIVEX ENTERPRISES INC.'s then-current rates for such work.
c) Other Services. Prices for Services not covered under a fixed-price SOW will be those prices in effect at the time the Services are provided or quoted, and may be adjusted to include any necessary surcharge(s). Unless otherwise agreed by CLINIVEX ENTERPRISES INC. in writing, CLINIVEX ENTERPRISES INC. prices do not include the cost of any related inspections, inspection fees, or permits. Prices for billable parts will be CLINIVEX ENTERPRISES INC.’s standard rates in effect at the time of installation. Subject to the limited warranties specified herein, the sale of billable parts will be considered final. If equipment requires major repair outside the scope of any contract with Customer, CLINIVEX ENTERPRISES INC. will provide Customer with an itemized estimate of the cost to perform said repair. Installation terms for purchase orders for the installation of scientific updated December 2018 laboratory equipment or furniture will be as set forth on CLINIVEX ENTERPRISES INC.’s quotation form.
d) Sales Tax. Taxes, where applicable, will be added as a separate line item to the invoice price. Customer shall pay to CLINIVEX ENTERPRISES INC. the amount of any Taxes. If any claim is made against CLINIVEX ENTERPRISES INC. for any such Taxes, CLINIVEX ENTERPRISES INC. shall promptly notify Customer of the amount of such Taxes and Customer shall promptly pay such amount to CLINIVEX ENTERPRISES INC. or its designated payee. If Customer possesses or otherwise enjoys tax-exempt status, Customer shall provide a duly authorized certificate of tax exemption to CLINIVEX ENTERPRISES INC. prior to or at the time of order placement or as otherwise requested by CLINIVEX ENTERPRISES INC. from time to time, and shall notify CLINIVEX ENTERPRISES INC. upon change in Customer’s tax-exempt status. Customer will be responsible for any Medical Device Excise Tax for IRS purposes for any Products that are medical devices purchased by Customer hereunder.
7) Payment Terms.
Customer shall pay individual invoices net fifteen (15) days from date of invoice, unless other credit terms are agreed to in writing by CLINIVEX ENTERPRISES INC.; summary invoices, if any, will be due as agreed. Payments are to be made in the currency invoiced by CLINIVEX ENTERPRISES INC. Customer shall provide CLINIVEX ENTERPRISES INC., concurrent with each payment, with remittance information in sufficient detail (to the invoice level or line level, as applicable) to allow CLINIVEX ENTERPRISES INC. to properly apply payments or credit memos to outstanding receivable(s) on CLINIVEX ENTERPRISES INC.'s accounts receivable sub-ledger for Customer. Any payments received no later than 2.00 PM Eastern Time at CLINIVEX ENTERPRISES INC.'s lockbox will be credited to Customer's account as of the date received, while payments received after 2.00 PM Eastern Time will be credited to Customer's account the following business day. Payment in the form of a check will be credited once the deposit appears in CLINIVEX ENTERPRISES INC.’s bank account; no post-dated checks will be accepted. Delinquent accounts will be subject to a service charge on past due amounts of the lesser of between one and one-half percent (1.5%) and three percent (3%) per month, depending on region, or the maximum amount permitted by law, plus Taxes, reasonable attorneys’ fees, and other collections costs, if any, incurred by CLINIVEX ENTERPRISES IN. recommends payments be made by wire transfer or ACH method to ensure timely receipt by CLINIVEX ENTERPRISES INC. reserves the right to:
require C.O.D. (subject to a handling fee) or impose more stringent payment requirements (including, without limitation, payment in advance) on Customer if Customer’s account is overdue or if Customer has an unsatisfactory credit or payment record, as determined by CLINIVEX ENTERPRISES INC. in its sole discretion, and to refuse to sell to Customer or otherwise perform hereunder until all overdue amounts are paid in full;
charge a convenience fee on any post-sale credit card payments by Customer;
charge a fee for any checks rejected due to insufficient funds;
charge a service fee for any re-invoicing requested by Customer; and
Furnish payment history data and related information to third party companies for fraud protection and credit risk reduction.
8) Security Interest. If Customer fails to pay the total sum due hereunder within sixty (60) days of shipment, CLINIVEX ENTERPRISES INC. hereby reserves and Customer hereby grants a purchase money security interest in the Products sold hereunder and the proceeds thereof. In the event of default by Customer of any of its obligations to CLINIVEX ENTERPRISES INC., CLINIVEX ENTERPRISES INC. shall have the right to repossess the Products sold hereunder without liability to Customer. Customer hereby authorizes CLINIVEX ENTERPRISES INC. to file one or more financing statements signed only by CLINIVEX ENTERPRISES INC. without Customer’s signature and to use a copy of this Agreement as an exhibit to any financing statement. Upon request of CLINIVEX ENTERPRISES INC., Customer agrees to promptly execute financing statements and such other instruments as CLINIVEX ENTERPRISES INC. desires to perfect or maintain its security interest.
9) Cancellation and Product Return Policy.
Except for Products that do not meet the limited Product warranty set forth herein, Customer may only cancel or return Products in accordance with the following:
a) Customer may not cancel or modify an order without the prior written consent of CLINIVEX ENTERPRISES INC., which may be withheld for any reason or no reason at all, and any changes may be subject to price adjustment and/or cancellation fees. Custom Products are not cancellable. In the event CLINIVEX ENTERPRISES INC. consents to the cancellation of Custom Products, Customer shall reimburse CLINIVEX ENTERPRISES INC. for any and all goods or services that were procured by CLINIVEX ENTERPRISES INC. for the Custom Products, any works-in-progress for Custom Products, and any charges incurred by CLINIVEX ENTERPRISES INC. for the receipt or return of goods used to build Custom Product(s). If any Services hereunder are canceled or terminated, Customer will pay to CLINIVEX ENTERPRISES INC. the reasonable costs and expenses incurred by CLINIVEX ENTERPRISES INC. prior to receipt of notice of such cancellation, plus CLINIVEX ENTERPRISES INC.’s usual rate of profit for similar work. The minimum cancellation charge for Services is fifteen percent (15%) of the total Services price.
b) All Product returns must be authorized by CLINIVEX ENTERPRISES INC., and CLINIVEX ENTERPRISES INC. reserves the right to reject any returns requested more than thirty (30) days after the delivery date. CLINIVEX ENTERPRISES INC. must receive all authorized returns within thirty (30) days of the return authorization. Custom Products are not returnable. CLINIVEX ENTERPRISES INC. reserves the right to reject any return shipment of Product that has not been authorized by CLINIVEX ENTERPRISES INC. or to return such shipment to Customer at Customer’s expense. If any Product is erroneously shipped to or returned to a CLINIVEX ENTERPRISES INC. facility, Customer will be responsible for removing the Product from CLINIVEX ENTERPRISES INC.’s facility immediately in accordance with applicable laws and regulations. All returns are subject to a minimum fifteen percent (15%) restocking charge for Sourced Products and a minimum twenty-five percent (25%) restocking charge for Manufactured Products. In the event CLINIVEX ENTERPRISES INC. authorizes a return of Manufactured Products, Customer will be responsible for all disposal fees in addition to any restocking charges. Customer is responsible for all transportation fees related to returned Product unless otherwise authorized in advance by CLINIVEX ENTERPRISES INC. To ensure proper credit, each Product return must include the following information:
i) Customer Name and Address
ii) Purchase Order Number
iii) CLINIVEX ENTERPRISES INC. Shipping Order Number
iv) Date of Invoice and Invoice Number
v) Item Number and Quantity of Returned Product(s)
vi) CLINIVEX ENTERPRISES INC. Return Authorization Number
vii) Reason for Return
c) Products not authorized for return include:
i) Products that have been provided under terms indicating that they are non-returnable
ii) Products not in completely resalable condition (including, without limitation, open Products, sampled Products, or Updated December 2018 Products with damaged, missing, or defaced labeling or packaging)
iii) Products in less than full-case quantities that were sold in full-case quantities
v) Laboratory apparatus or instruments that have been used or are without the original packaging, labeling, and manuals
vi) Refrigerated Products, temperature-controlled Products, live specimens, or other perishables
vii) Products which are not inventoried by CLINIVEX ENTERPRISES INC. (“non-stocked Products”) and are not able to be returned to the manufacturer
viii) Products purchased on a special-order basis (including, without limitation, non-standard furniture Products)
ix) Products not purchased by Customer from CLINIVEX ENTERPRISES INC.
x) Products with an expired shelf life or an expiration date too short for resale
xi) Discontinued Products
xii) Custom Products d) Where the return of hazardous material is authorized by CLINIVEX ENTERPRISES INC., Customer shall pack and label each return shipment of hazardous materials in accordance with applicable laws and regulations applying to transportation of hazardous materials and provide shipping documents that comply with applicable laws and regulations. When necessary, Customer shall include with each return shipment of equipment a certification from an authorized representative of Customer that the equipment was properly decontaminated in accordance with applicable laws and regulations and recommended guidelines. Customer shall ship the Product to the service center indicated by CLINIVEX ENTERPRISES INC. with the transportation charges prepaid. To ensure prompt handling, Customer shall place the return authorization number on the outside of the package and utilize any return authorization provided by CLINIVEX ENTERPRISES INC. as a packing slip with the returned Products. All returned Products are subject to CLINIVEX ENTERPRISES INC.’s inspection and acceptance. Title and risk of loss in the returned Products will transfer to CLINIVEX ENTERPRISES INC. only upon CLINIVEX ENTERPRISES INC.’s acceptance of the Products. e) In the event a CLINIVEX ENTERPRISES INC. entity establishes a returns and/or cancellation policy that differ from the terms set forth in this Section 9, the stricter CLINIVEX ENTERPRISES INC. requirement shall prevail in the event of a conflict.
10) Product and Services Warranties; Limitation of Liability.
a) Limited Product Warranty for Sourced Products. CLINIVEX ENTERPRISES INC. warrants to the original Customer only that all Core Products sold hereunder will conform to the manufacturer’s specifications and release tolerances for a term equal to the warranty period stated in the Product manufacturer’s literature. Notwithstanding the foregoing, any Core Products that are software and any software incorporated in or necessary to use the Core Products (“Software Products”) are warranted solely by the applicable manufacturer or licensor, and CLINIVEX ENTERPRISES INC. shall pass through, to the extent permitted, the manufacturer’s and/or licensor’s warranties. Customer’s use of any Software Product is subject to the terms and conditions of the manufacturer’s and/or licensor’s license terms, including any end user license agreement, in whatever form (e.g., terms packaged with the Software Products or “click-through” terms), in addition to this Agreement. For all Market Source Products, CLINIVEX ENTERPRISES INC. shall use reasonable efforts to assist Customer in obtaining sellers’ and manufacturers’ warranties applicable to the Products sold to Customer hereunder, consistent with the warranties obtained from such sellers and manufacturers by CLINIVEX ENTERPRISES INC.
b) Limited Product Warranty for Manufactured Products. CLINIVEX ENTERPRISES INC. warrants to the original Customer only that Self-Manufactured Products will materially conform to CLINIVEX ENTERPRISES INC.’s standard specifications in effect on the date of shipment for the shorter of ninety (90) days from the date of delivery or the shelf-life of the Self-Manufactured Product. For a period of ninety (90) days from the date of delivery, CLINIVEX ENTERPRISES INC. warrants to the original Customer only that Custom Products will be assembled or manufactured, as applicable, to the specifications provided by Customer and agreed upon by CLINIVEX ENTERPRISES INC. The foregoing warranties are limited to Manufactured Products, as applicable, bearing CLINIVEX ENTERPRISES INC.’s label in CLINIVEX ENTERPRISES INC.’s original packaging. CLINIVEX ENTERPRISES INC. does not warrant as to the safety, efficacy, or performance of any such Custom Products or as to the quality of such Custom Products to the extent attributable to the specifications. With respect to Custom Products that are kits, the limited warranty for component Products is as set forth in Section 11(a). Custom Products are updated December 2018 subject to a plus or minus (+/-) ten percent (10%) yield policy with regard to volume produced. c) Services Warranty. CLINIVEX ENTERPRISES INC. warrants that Services provided hereunder will be of the kind and quality designated and will be performed by qualified personnel. CLINIVEX ENTERPRISES INC. shall use reasonable efforts, based on the information supplied by Customer, to have all Services performed in a workmanlike and professional manner by employees or subcontractors of CLINIVEX ENTERPRISES INC. having a level of skill commensurate with the requirements of this Agreement. CLINIVEX ENTERPRISES INC.'s performance of the Services called for by this Agreement do not and will not violate any applicable law, rule, or regulation; any contracts with third parties; or any third-party rights in any patent, trademark, copyright, trade secret, or similar right. The following warranty periods will apply to the Services: (i) thirty (30) days after the work is completed for Services performed under an existing Services engagement; (ii) forty-eight (48) hours for any Services not performed under an existing Services engagement (a “call service”); or (iii) one (1) year from the installation date on installation Services for laboratory casework. All parts provided by CLINIVEX ENTERPRISES INC. in performing the Services will meet the manufacturer's specifications for a term equal to the warranty period stated in the part manufacturer's literature. d) Exclusions. Customer must notify CLINIVEX ENTERPRISES INC. of defective or non-conforming Products within the warranty periods specified in the limited Product warranty set forth herein or within thirty (30) days after Customer learns of the facts giving rise to the claim, whichever first occurs, and Customer’s failure to give notice of any claim within the applicable time period shall be deemed an absolute and unconditional waiver of such claim. The liability of CLINIVEX ENTERPRISES INC. under the limited Product warranty set forth herein will not extend to any Products that are abused, altered, improperly stored, or misused by Customer or any other persons or entities or that become defective or non-conforming through the actions or inaction of Customer or any other persons or entities, including through the combination with other chemicals or products. Customer will have the obligation of substantiating the chain of custody of the Products following delivery of the Products to Customer. CLINIVEX ENTERPRISES INC. is not responsible for the impact of factors including, without limitation, machine cycles, sanitation, humidity, and operator practices (including, without limitation, misuse, abuse, and/or negligent operation, or unauthorized modifications, adjustments, and/or repairs) on serviced equipment and will not be required to perform Services or provide the warranty set forth herein on equipment subjected to such factors. Any Services performed by CLINIVEX ENTERPRISES INC. on equipment subjected to such factors will be on a time and materials basis only. All formulae, drawings, illustrations, descriptive matter, and particulars contained in CLINIVEX ENTERPRISES INC.’s catalogs, website, and marketing materials, and any technical advice or other statements given by CLINIVEX ENTERPRISES INC. or its representatives with respect to the use of the Products or any results that may be obtained therefrom, are indicative only and do not form a part of this Agreement and are not representations and warranties of any kind. e) Disclaimer. CLINIVEX ENTERPRISES INC. HEREBY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, OR GUARANTEES WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY (i) WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, SUITABILITY, SUSTAINABILITY, OR FITNESS FOR A PARTICULAR PURPOSE; (ii) WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; AND (iii) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS. f) Product Remedy. At CLINIVEX ENTERPRISES INC.’s request, Customer shall promptly forward to CLINIVEX ENTERPRISES INC. any allegedly defective or non-conforming Product or a representative sample thereof, as specified by CLINIVEX ENTERPRISES INC.. If any Product warranted hereunder proves defective or nonconforming, as determined by CLINIVEX ENTERPRISES INC. in its sole reasonable discretion, CLINIVEX ENTERPRISES INC.'s sole and exclusive obligation and Customer's sole and exclusive remedy hereunder will be for CLINIVEX ENTERPRISES INC., at CLINIVEX ENTERPRISES INC.'s option, to: (i) replace at no cost to Customer, any such defective or nonconforming Product with a non-defective or conforming Product; (ii) in the event a return is authorized, credit Customer's account for all amounts paid with respect to the defective or non-conforming Product upon CLINIVEX ENTERPRISES INC.'s receipt of, and opportunity to evaluate, the defective or non-conforming Product; or (iii) repair or have repaired (including, through re-working or re-processing, as applicable) a defective or non-conforming Product. In the event of replacement, the replacement Product will be warranted for the remainder of the original warranty period. For purposes of this Agreement, a defective or non-conforming Product is defined only as a Product that does not meet the limited product warranty set forth herein, and excludes Products that fail to meet any fitness of use by Customer or any unique Customer operating conditions or applications. g) Services Remedy. With respect to the labor, if any Services warranted hereunder prove defective or non-conforming, CLINIVEX ENTERPRISES INC.'s sole liability and Customer's sole remedy hereunder will be for CLINIVEX ENTERPRISES INC., at CLINIVEX ENTERPRISES INC.’s option to: (i) re-perform the Services, at no cost to Customer; or (ii) credit Customer's account for all amounts paid with respect to the defective or non-conforming Services. With respect to any parts provided by CLINIVEX ENTERPRISES INC. in performing the Services, if any such parts prove defective or non-conforming during the first thirty (30) days after installation, CLINIVEX ENTERPRISES INC.’s sole liability and Customer’s sole remedy hereunder will be for CLINIVEX ENTERPRISES INC., at CLINIVEX ENTERPRISES INC.’s option, to: (i) refund the purchase price; or (ii) modify, repair, or supply a replacement part, including labor and travel, free of charge to Customer. For the remainder of the warranty period, CLINIVEX ENTERPRISES INC.’s sole liability and Customer’s sole remedy hereunder will be for CLINIVEX ENTERPRISES INC., at CLINIVEX ENTERPRISES INC.’s option, to: (i) refund the purchase price; or (ii) modify, repair, or supply a replacement part, provided Customer agrees to pay reasonable labor, travel time, and expenses to and from a service location authorized by CLINIVEX ENTERPRISES INC.. CLINIVEX ENTERPRISES INC., at its option, may require Customer to return the part to CLINIVEX ENTERPRISES INC., F.O.B. origin, or may modify, repair, or supply a replacement part at the point of installation. CLINIVEX ENTERPRISES INC. will accept no responsibility if such part has been improperly operated or maintained, or if Customer has permitted any unauthorized or third-party modifications, adjustments, and/or repairs to the part. h) Waiver. Customer acknowledges that CLINIVEX ENTERPRISES INC. is not the manufacturer of any of the Sourced Products sold hereunder. Customer hereby waives any and all actions, claims, suits, and demands of any type whatsoever (including, without limitation, claims based on strict liability, products liability, tort, or contract) against CLINIVEX ENTERPRISES INC., its subcontractors, or its agents, or any of its or their respective employees, for personal injury, wrongful death, or property damage arising out of or in any way connected with the Services or Customer’s receipt, handling, storage, possession, transportation, disposal, purchase, resale, or use of the Products (whether used Updated October 2018 singly or in combination with other products), except to the extent caused by the gross negligence of CLINIVEX ENTERPRISES INC., its subcontractors, or its agents, or any of its or their respective employees. Notwithstanding any other provision of this Agreement, CLINIVEX ENTERPRISES INC. disclaims, and Customer releases CLINIVEX ENTERPRISES INC. from, any and all liability for claims based upon the death or bodily injury to any person or for the loss of, damage to, or destruction of any property so long as CLINIVEX ENTERPRISES INC., its subcontractors, or its agents were acting in compliance with Customer policies, procedures, and specifications of which CLINIVEX ENTERPRISES INC. had been given notice. i) Limitation of Liability.
IN NO EVENT WILL CLINIVEX ENTERPRISES INC. HAVE ANY OBLIGATION OR LIABILITY FOR ANY EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUE, BUSINESS, USE, DATA, PRODUCTIVITY, OR GOODWILL OR COST OF CAPITAL, RECALL, OR COVER) WHETHER BASED ON CONTRACT (INCLUDING, WITHOUT LIMITATION, WARRANTY), TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OR FORM OF ACTION, EVEN IF CLINIVEX ENTERPRISES INC. HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. THE TOTAL LIABILITY OF CLINIVEX ENTERPRISES INC. (INCLUDING ITS SUBCONTRACTORS AND AGENTS), IF ANY, FOR DAMAGES RELATING TO THIS AGREEMENT OR ANY PRODUCT OR SERVICE WILL BE AN AMOUNT EQUAL TO THE PRICE OR FEES PAID FOR THE PARTICULAR PRODUCT(S) OR SERVICES IN RESPECT TO WHICH SUCH DAMAGES ARISE, IN NO EVENT TO EXCEED $1,000 CANADAIN DOLLAR HOWEVER, THESE PROVISIONS DO NOT LIMIT OUR LIABILITY THAT CANNOT BE LIMITED BY LAW.
Customer shall indemnify, defend, and hold harmless each of CLINIVEX ENTERPRISES INC., its subsidiaries, affiliated entities, and divisions, and its or their respective successors, assigns, officers, directors, shareholders, subcontractors, agents, employees, and representatives (each, a “Customer-Indemnified Party”) from and against, and in respect of, any and all actions, claims, suits, judgments, damages, liabilities, losses, settlement payments, penalties, costs, and expenses (including, without limitation, attorneys’ fees) of every kind whatsoever (collectively, “Damages”) arising out of, from, or in connection with any: (i) patent, copyright, or trademark infringement, or violation of any other proprietary right, arising out of the use of any Product or any specifications furnished by Customer; (ii) breach by Customer of any term or provision of this Agreement; (iii) Damages arising out of or relating to Customer’s receipt, handling, storage, possession, transportation, disposal, purchase, resale, or use of any Product (whether used singly or in combination with other products); and (iv) wrongful or negligent act or omission by any of Customer or its officers, directors, shareholders, agents, servants, employees, and representatives; provided, that this section will not obligate Customer to indemnify any Customer-Indemnified Party for any portion of Damages directly attributable to, and directly caused by, the negligence of a Customer-Indemnified Party. Customer may not settle any such claim against a Customer Indemnified Party without the prior written consent of such Customer-Indemnified Party. If Customer elects not to assume such defense, the Customer-Indemnified Party may elect to do so and Customer shall pay all costs and expenses of counsel selected by such Customer Indemnified Party in connection with such defense. Any legal counsel appointed by Customer to defend such a claim must be experienced in the type of litigation involved and must be reasonably satisfactory to the Customer-Indemnified Party. Customer and each Customer Indemnified Party shall cooperate fully in connection with all matters related to the defense of any such claim.
12) Customer’s Obligations, Products.
Customer represents and warrants that it is familiar with the characteristics, qualities and uses of the Products that it is purchasing from CLINIVEX ENTERPRISES INC. and acknowledges that there may be hazards associated with the possession and use of the Products. Customer is responsible for instructing and warning its employees and all other persons who may come into contact with the Products regarding such hazards. Unless otherwise expressly stated on the Products or in the documentation accompanying the Products, the Products are intended for research only and are 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, and CLINIVEX ENTERPRISES INC. does not assume any warranty or liability for such uses unless stated on the Product or in the Product documentation. Customer is solely responsible for conducting all necessary testing and verification, including for fitness for the intended purpose, prior to the use of Product(s) purchased from CLINIVEX ENTERPRISES INC.
14) Customer’s Obligations, Services.
With respect to the Services, Customer shall at its expense:
Make available to CLINIVEX ENTERPRISES INC. space and facilities, including, but not limited to, functional telephone and internet connectivity, reasonably satisfactory to CLINIVEX ENTERPRISES INC. and appropriate for the safe and efficient performance of the Services;
Services engagements, give CLINIVEX ENTERPRISES INC. sixty (60) days’ notice prior to any production down time that will last longer than seven (7) days;
Provide adequate access to all necessary customer systems, facilities, and facility-related training for CLINIVEX ENTERPRISES INC. on-site employees and subcontractors identified as providers of the Services; and
Ensure proper and adequate back-up and storage procedures for Customer’s data and records.
Confidential Information. Customer shall maintain in confidence, not disclose to any third party, and not use, except for the specific purpose of performing under this Agreement, all Confidential Information furnished to it by CLINIVEX ENTERPRISES INC. in connection with this Agreement, as a result of discussions, negotiations, or other communications with CLINIVEX ENTERPRISES INC. in relation to the Products or Services, or derived from CLINIVEX ENTERPRISES INC. in performance of this Agreement, and shall return to CLINIVEX ENTERPRISES INC., upon request, all copies then in Customer’s possession of CLINIVEX ENTERPRISES INC.’s Confidential Information. Customer shall inform its employees, agents, and representatives of these obligations and shall require them to assume equivalent obligations, and is liable for the acts and omissions of its employees, agents, and representatives with respect to CLINIVEX ENTERPRISES INC.’s Confidential Information. Customer acknowledges that CLINIVEX ENTERPRISES INC. would not have any adequate remedy at law for the breach by Customer of any one or more of its obligations contained in this section, and agrees that in the event of any such actual or potential breach, CLINIVEX ENTERPRISES INC. may, in addition to the other remedies that may be available, file a suit in equity to enjoin Customer therefrom.
Ownership Rights. Except as expressly set forth herein, no right, title or interest in or to CLINIVEX ENTERPRISES INC.’s intellectual property or proprietary rights (“Intellectual Property Rights”) is granted by CLINIVEX ENTERPRISES INC. to Customer whether by implication, estoppel, or otherwise, and the sale of Products and Services to Customer hereunder shall have no effect on CLINIVEX ENTERPRISES INC.’s Intellectual Property Rights with respect to the Products and Services, including, without limitation, any and all patent, trade secret, copyright, trademark, trade dress, and service mark rights relating to the Manufactured Products. Without limiting the foregoing, CLINIVEX ENTERPRISES INC. is and will remain the sole and exclusive owner of all right, title and interest in and to its standard operating procedures, specifications, drawings, and designs, and, if applicable, its proprietary software licensed to Customer hereunder, including any improvements or other inventions relating thereto. Customer agrees to respect all such rights, and to take or permit to be taken no actions which would infringe upon such rights. Customer shall not derive or attempt to derive by reverse engineering, disassembling, or otherwise any portion of the proprietary software. As between Customer and CLINIVEX ENTERPRISES INC., all Intellectual Property Rights in and to the Services or any materials, processes, ideas, concepts, techniques, inventions, discoveries, or improvements produced by CLINIVEX ENTERPRISES INC. or provided by CLINIVEX ENTERPRISES INC. under this Agreement will be the property of CLINIVEX ENTERPRISES INC. Effective upon completion of the Services and payment by Customer of the fees and expenses invoiced by CLINIVEX ENTERPRISES INC. with respect thereto, Customer will have a nonexclusive license to use the materials and processes developed and provided by CLINIVEX ENTERPRISES INC. under this Agreement for Customer throughout Customer's organization. Customer's interest in and obligations with respect to any programming, materials, or data to be obtained from third-party vendors, whether or not obtained with the assistance of CLINIVEX ENTERPRISES INC., will be determined in accordance with the agreements and policies of such vendors.
a) Force Majeure. CLINIVEX ENTERPRISES INC. will not be liable in the event it is prevented in whole or in material part from performing its obligations under this Agreement by circumstances beyond its reasonable control (including, without limitation, any war, riot, insurrection, terrorist act, civil commotion, labor strike, lockout, slowdown, or other civil disorder; fire, flood, storm, earthquake, natural disaster, or other act of God; shortages or inability to obtain necessary labor, power, fuel, energy, materials, supplies, equipment, machinery, or manufacturing facilities at reasonable prices from regular sources; machinery breakage; failure of a communications or Internet provider; transportation delays; or any then prevailing applicable law, rule, or regulation, including export or import controls, or other act or order of any court, government or governmental agency).
b) Nature of Relationship. Neither party nor its employees, permitted subcontractors, or agents will, under any circumstances, be considered to be an agent, partner, joint venturer, or representative of the other party, or anything other than an independent contractor for all purposes of this Agreement, and except as may be authorized specifically in writing, neither party has express or implied authority to bind the other in any manner whatsoever by virtue of this Agreement.
c) Assignment. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns and designees; provided, however, neither party will have the right to transfer, assign or delegate its rights or obligations under this Agreement or any portion thereof without the prior written consent of the other party (except that CLINIVEX ENTERPRISES INC. may assign this Agreement to a parent, subsidiary, or successor corporation without such consent). Notwithstanding the foregoing, CLINIVEX ENTERPRISES INC. will have the right, without the prior approval of Customer, to appoint subcontractor(s) or agent(s) to perform certain services hereunder.
d) Mutual Representations. Each party represents and warrants that it: (i) is authorized to enter into this Agreement and that in so doing it is not in violation of the terms or conditions of any contract or other agreement to which it may be a party; and (ii) has or shall obtain all appropriate consents or permissions to perform its obligations under this Agreement and to disclose any information to the other Party. Customer further represents and warrants that it: (i) shall comply with all applicable laws, rules, and regulations (including, without limitation, permitting and licensing requirements) related to its performance hereunder and in the receipt, handling, storage, possession, transport, disposal, purchase, resale, or use of any Product; and (ii) owns all right, title, and interest in and to, or has full and sufficient right and authority to use in the manner contemplated by this Agreement, any programming, materials, Updated December 2018 specifications or data furnished by Customer to CLINIVEX ENTERPRISES INC. in connection with CLINIVEX ENTERPRISES INC.'s performance of the Services. The Products and Services provided by CLINIVEX ENTERPRISES INC. are intended for purchase and use by persons or entities acting in a professional, business, or trade capacity (each, a “Commercial Customer”), and are not intended for purchase or use by consumers for personal, family, or household purposes. By ordering Products or Services, Customer represents and warrants that it is a Commercial Customer engaging in a commercial transaction.
e)EACH PARTY HERETO EXPRESSLY AND IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM RELATING TO OR ARISING IN ANY WAY FROM THIS AGREEMENT, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS AGREEMENT, OR ANY TRANSACTION CONTEMPLATED IN ANY SUCH DOCUMENTS. CUSTOMER AND CLINIVEX ENTERPRISES INC. EACH ACKNOWLEDGE THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY. CUSTOMER EXPRESSLY WAIVES ANY OBJECTION THAT IT MAY HAVE NOW OR LATER TO THE VENUE OR JURISDICTION OF ANY ACTION, INCLUDING, WITHOUT LIMITATION, BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE, FORUM NON CONVENIENS, OR SIMILAR GROUNDS. ANY ACTION ARISING UNDER THIS AGREEMENT, OTHER THAN FOR NON-PAYMENT, MUST BE BROUGHT WITHIN ONE (1) YEAR FROM THE DATE THAT THE CAUSE OF ACTION AROSE.
f) Merger, Modification, Waiver; Construction and Interpretation; Survival. This Agreement comprises the entire agreement between the parties with respect to the subject matter hereof, there being no prior or contemporaneous written or oral promises or representations not incorporated herein. No amendment, modification or waiver of the terms of this Agreement will be binding on either party unless reduced to writing and signed by an authorized officer of the party to be bound, and in the case of a waiver, will be effective only in the specific instance and for the specific purpose for which given, and will not be construed as a waiver of any subsequent breach. The failure of either party to enforce at any time or for any period of time any of the provisions of this Agreement will not be construed as a waiver of such provisions or of the right of such party thereafter to enforce each and every such provision. The captions in this Agreement have been inserted for convenience of reference only and do not constitute a part of, and will not be considered in construing, this Agreement. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid for any reason, the remainder of this Agreement will not be deemed invalid but will remain in full force and effect. No course of dealing, usage of trade, or course of performance will supplement, explain, or amend any term, condition, or instruction of this Agreement or any shipment of Products or provision of Services hereunder. Stenographical, clerical, or computer errors on the face of any CLINIVEX ENTERPRISES INC. quotation, invoice, or other form will be subject to correction by CLINIVEX ENTERPRISES INC.. Sections 2, 7-9, 10-14, will survive termination of this Agreement or termination or cancellation of any purchase order.
g) No Third-Party Beneficiary Rights. This Agreement is not intended to and will not be construed to give any third party any interest or rights (including, without limitation, any third-party beneficiary rights) with respect to or in connection with the subject matter of this Agreement, except as otherwise expressly provided for in this Agreement.
h) English Language. The parties have requested that this Agreement and all related documents be drawn up in English only.