These Terms (by themselves and as part of an order form – either online or signed) (“Agreement”) exclusively govern the order, sale, purchase, provision, use, transfer and disposal of Dri•Bank® biological sample storage container and accessories (collectively, “Products”) from Inclined Biomedical Technologies, Inc d/b/a DriBank Labs (“IBT”). Purchaser/recipient of Products are referred to as Customer. The following terms and conditions are made part of the Agreement:
1. Specifications. Specifications of Products are subject to change without prior notice.
2. Product Use. Subject to the Terms herein, Customer will use Products only (i) for the preservation, storage and shipping of biological samples (as specified in IBT’s technical materials, as amended) for Customer’s own internal use and/or shipment of Customer materials to its customers, and for no other purpose; and (ii) in strict accordance with the Terms herein and all Laws.
3a. Quantity. Quantity of Product will be as specified in each order for Products or as otherwise mutually agreed upon.
3b. Pricing. Prices for Products will be as specified by IBT or, if no price is specified or quoted, will be IBT’s prices in effect at time of shipment. In addition, Customer will pay IBT for (a) all shipping, handling and freight charges; and (b) all applicable government imposed taxes, fees, licenses, duties, levies and other government charges and assessments (including without limitation all applicable sales, use, excise and value-added taxes) (“Taxes”), unless a valid, signed tax exemption certificate is provided IBT. Until an order is accepted by IBT, all prices are subject to change (including without limitation due to increased charge(s) for raw materials) at any time without notice.
4. Payment. Unless otherwise agreed in writing by IBT’s CEO, all sales are ‘cash only’ that must be prepaid in US Dollars; and IBT will not ship any Products until after IBT actually receives payment in full. Extension of credit, if any, will be at IBT’s sole discretion and subject to periodic satisfactory credit checks and IBT’s then-applicable credit policy. Customer will have no right to setoff or reduction for any reason. IBT may, at any time, offset any debt or other financial obligation which Customer owes to IBT against amounts due or which become due to Customer. If IBT has any doubt at any time as to Customer's ability to pay, IBT may decline all or any portion of future shipments except on written receipt of satisfactory assurance or security. Interest will accrue on unpaid or owed amounts at the lesser of the maximum rate allowable under law or at the rate of 1.5% per month. If IBT retains a collection agency or attorney to collect unpaid amounts, IBT may invoice Customer for, and Customer will pay, all reasonable costs of collection, including without limitation reasonable attorneys fees.
5. Delivery. Unless otherwise agreed in writing by IBT’s CEO, IBT will ship Products to Customer only after full payment is received by IBT. Shipment date will be confirmed after IBT actually receives payment in full. All shipments of Products will be delivered EXW (per Incoterms 2010) IBT’s-designated facility. Title to and the risk of loss or damage of Products will pass to Customer upon IBT’s delivery of Product to carrier. IBT will have the right to make partial shipments of Products. IBT reserves the right to stop delivery of Products in transit and to withhold shipments in whole or in part if Customer fails to make any payment to IBT when due or otherwise breaches any term of this Agreement. All shipment dates are approximate only, and IBT will not be liable for any loss or damage resulting from: (a) any delay in delivery; or (b) failure to deliver for any reason beyond IBT's reasonable control. Products which delivery is delayed due to any cause within Customer's control may be placed in storage by IBT at Customer's risk and expense and for Customer's account.
6. Limited Warranty. IBT warrants to Customer that (a) Products supplied by IBT will be free from defects in material and workmanship for 30 days from date of shipment (“Warranty Period”); and (b) title to all Products will pass to Customer as provided herein, free and clear of any security interests and liens. Warranties are made only to Customer and are not transferable and do not extend to the benefit of any other person or entity.
Warranty Return Procedure: Customer must notify IBT in writing of all claims for defective Products within 30 days after Buyer’s receipt of the Products and will reasonably cooperate in IBT’s investigation of all warranty claims. After IBT's review of such written notice, IBT, at its sole discretion, may provide a Return Material Authorization ("RMA") to Customer. IBT may refuse any Products not timely notified or lacking an RMA provided by IBT. Customer will properly clean and rinse the Products, removing all biological, chemical, radioactive and hazardous residue. IBT may require Customer sign and deliver a properly completed certificate of decontamination prior to returning any Products. Then, Customer may return the allegedly defective Products to IBT with all costs prepaid by Customer. Returned Products must include the following information: Customer name and address, IBT shipping order number, number and date of invoice, IBT RMA Number, and written explanation of reason for return. All replaced parts will become the property of IBT.
In no event will IBT have any obligation for a warranty claim as the result of (i) normal wear and tear; (ii) damage, abuse, misuse, alteration, tampering, fault or negligence caused by anyone other than IBT; (iii) use of the Product in a manner for which it was not designed; (v) causes external to the Product; and (vi) improper storage and handling of the Product. If IBT provides repair services or replacement parts that are not covered by this warranty, Customer will pay IBT at IBT's then prevailing rate of the Products.
7. Intellectual Property. U.S. Patent # 9,044,007 and other patents pending. Except as expressly set forth herein, no license is granted (either directly, indirectly or by implication) in any patent, trademark, trade secret or other intellectual or industrial property or proprietary right of IBT (“IBT IP Rights”). Nothing in these Terms will be deemed or construed (i) to limit IBT’s rights to enforce IBT IP Rights (including without limitation as to use of any Products beyond uses expressly granted under this Agreement); or (ii) as a license or grant of any right to Customer to manufacture or distribute, or have others manufacture or distribute, any Products. Customer will not challenge, contest or otherwise impair IBT’s ownership of any IBT IP Rights, or the validity or enforceability of any IBT IP Rights. Customer will not file any patent, trademark or other intellectual or industrial property or proprietary right applications on, using or incorporating, IBT’s Products, materials, methods and/or process(s), or any improvement thereof. Customer will not reverse engineer, alter, modify, or disassemble Product for any purpose (including without limitation manufacturing the Products by Customer or any third party). If Customer provides or makes any improvements, ideas, changes, enhancements, recommendations or other feedback relating to IBT’s Product(s) (“Feedback”), Customer hereby assigns all right, title and interest in and to the Feedback to IBT.
8. Infringement Remedy. Customer will promptly (but in no less than three (3) business days) notify IBT when it becomes aware of any Claim that any Product(s) infringes, or may infringe, any intellectual or industrial property or proprietary right of any third party. If any Product(s) (or use thereof) provided by USW is held to constitute an infringement or is enjoined or, in IBTS’ opinion, is likely to be enjoined for any reason, IBT may, at its option and expense, either (a) procure for Customer the right to continue using the Product(s); (b) modify the Product(s) so that it becomes non-infringing, or (c) require Customer return the Product(s) and upon return, credit to Customer the price actually paid by Customer for the Product(s), less a reasonable amount for use, damage and obsolescence; or (d) replace or substitute the Product(s) with other noninfringing Product with comparable functionality. THE FOREGOING STATES IBT'S ENTIRE LIABILITY TO CUSTOMER, AND SOLE AND EXCLUSIVE REMEDY OF CUSTOMER, FOR INFRINGEMENT.
9. Limitation of Liability:
10. Force Majeure. IBT will not be responsible or liable for any delay, nonperformance, failure or loss caused directly or indirectly by any act, condition or circumstance beyond IBT’s reasonable control (including, but not limited to: acts of God; acts of weather; computer or other equipment failure; material/part shortage(s); inability or delay to obtain suitable material; act, omission or nonperformance of IBT’s suppliers or vendors; plant breakdowns; government regulation; curtailment of transportation; or any other cause, act, condition or circumstance beyond IBT’s reasonable control.
11. Indemnity. Upon IBT’s written notice, Customer will indemnify, defend and hold harmless IBT and its successors and assigns and their respective owners, shareholders, directors, officers, employees, contractors, agents and suppliers (“Indemnitees”) from and against any and all claims, demands, actions, suits, liabilities, damages, losses, penalties, fines, injury, costs, expenses, including without limitation court costs and reasonable attorneys’ fees (collectively, “Claims”) based on or arising or resulting from (a) Customer’s breach of this Agreement; (b) Customer’s promotion, publication, use, handling, possession, shipment, transfer and/or disposal of the Product(s); (c) the negligence or willful misconduct of Customer; or (d) Customer’s noncompliance with Laws. Indemnitees will have the right to monitor and participate in any Claims. Customer will not agree to any settlement of any Claim that does not include a complete and unconditional release of the Indemnitees from all liability with respect thereto or that imposes any liability or obligation on the Indemnitees, without the prior written consent of the Indemnitees.
12. Termination. Customer may not terminate any order for Product without the prior written consent of IBT. This Agreement (including any order) may be terminated by IBT at any time without liability upon written notice to Customer.
13. Compliance with Laws. IBT will comply with all applicable federal, state and local laws, codes, ordinances, rules, regulations, and orders of any governmental agency or regulatory body (“Laws”) in connection with the manufacture of Products. Customer will not take any action, or omit to take any action, that might cause IBT or its Product to be in violation of any Laws. Customer will comply with all Laws in connection with promotion, publication, use, handling, possession, shipment, transfer and disposal of Product(s).
14. Disclaimer of Regulated Uses. Products are not medical devices and are not intended for any clinical use (whether diagnostic, treatment, prognostic, therapeutic, blood banking or any other clinical use). Customer acknowledges the Products are not cleared, approved, registered or otherwise qualified with the FDA or any other regulatory agency (“Approval”) for use in any clinical procedure or for other use requiring compliance with Laws (including without limitation regulation of diagnostic, treatment, prognostic, therapeutic, blood banking or other clinical products or services, medical devices or similar product). Customer will not use any Product(s) for any purpose that would require Approval unless and until after proper Approval is obtained by Customer. If Customer elects to use a Product(s) for a purpose that would subject Customer or its users or any Product(s) to regulation of any Laws, Customer will be solely responsible for obtaining and maintaining any required Approval and ensure that its use of any Product(s) complies with all Laws, and will indemnify, defend and hold IBT harmless from any and all Claims resulting from such use or failure to obtain proper Approval.
15. Publicity. Customer consents to IBT listing Customer on its customer list or otherwise publicly identifying Customer as a customer and user of its Products. Customer will not use or publish the trademarks (e.g., Atacama®, Dri•Bank®, etc.), logos, or names of IBT or its divisions or affiliates without the prior written consent of IBT. Customer agrees to keep all technical information, pricing discounts, Feedback, warranty claims and other claims (including without limitation the existence, subject, evidence, proceedings and ruling of arbitration) concerning IBT or the Product(s) in confidence and not disclose to any third party except as required by law.
16. Export. Customer will not directly or indirectly export or re-export any IBT Products, material, data or information outside the United States.
17. Government Restricted Lists. Customer will not provide Products to any person, entity or country who is debarred, excluded, denied, restricted, suspended, or otherwise listed or identified: (i) by the FDA pursuant to subsections 306(a) or (b) of the Federal Food, Drug, and Cosmetic Act; (ii) on the List of Excluded Individuals/Entities maintained by the U.S. Department of Health and Human Services Office of Inspector General; (iii) on the List of Parties Excluded from Federal Programs maintained by the U.S. General Services Administration; or (iii) on any other U.S. Government restricted list (including without limitation Denied Parties List, Blocked Parties List, Unverified List, Entity List, Nonproliferation Sanctions List, AECA Debarred List, Specially Designated Nationals List, and Foreign Sanctions List Evaders List) (collectively, “Government Restricted List”). Customer represents and warrants that it and its personnel are not on any such U.S. Restricted List or otherwise prohibited by law from purchasing the Products hereunder.
18. Transfer Prohibited. Except as expressly permitted herein, Customer will not directly or indirectly convey, provide, transfer or resell Products to any person or entity without IBT’s prior written consent. If IBT consents in writing, transferee must agree in writing to accept and abide by these terms.
19. Laws. This Agreement will be governed by the laws of the State of Minnesota, excluding its conflict of laws provisions. U.N. Convention on Contracts for the International Sale of Goods will not apply. Except as provided below, controversies will be adjudicated in a state or federal court of competent jurisdiction in Hennepin County, Minnesota. The parties irrevocably consent to the personal jurisdiction of such courts and waive any defenses relating to jurisdiction and venue.
Prevailing party in any action, dispute, arbitration or proceeding will be entitled to reasonable attorneys' fees and court costs, in addition to other relief which it is entitled.
20. Disputes. In the event of a dispute, complaining party will notify the other party in writing thereof. Management of both parties will meet at an agreed location to attempt to resolve the dispute in good faith. Should the dispute not be resolved within 30 days after such notice, the parties will submit any dispute (excluding disputes and claims involving breach of confidentiality, ownership/intellectual property, and infringement which will solely be handled in a court of competent jurisdiction) related to this Agreement to binding arbitration in Hennepin County, Minnesota before one arbitrator pursuant to the American Arbitration Association's Commercial Arbitration Rules. Arbitrator will issue written findings of fact and conclusions of law. A party may enter arbitrator’s judgment on an award in any court having jurisdiction and a party may appeal the arbitrator’s decision to consider whether arbitrator’s findings or decision is in error as a matter of law. Notwithstanding anything that may be to the contrary, a party may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other equitable relief, as necessary.
21. Assignment. Customer will not delegate any duties or assign or transfer this Agreement (by contract, implication, operation of law, merger, acquisition, change of control or otherwise) to any third party without IBT’s prior written consent; any such attempted delegation, assignment or transfer without IBT’s prior written consent will be void. IBT may freely assign this Agreement at any time for any reason.
22. Notices. All notices requested or required under this Agreement will be written in English. Notice will be deemed given when delivered in person or one business day after deposit with a commercial courier providing proof of delivery sent with next day service.
23. Sole Terms. These Terms (together with IBT’s order form – whether online or separately signed, as applicable) will constitute the complete, exclusive and entire agreement between IBT and Customer with respect to the order, sale, purchase, provision, use, transfer and disposal of Products. Customer’s acceptance of these Terms is a condition of IBT’s acceptance of any order for Products. Any terms, conditions or documents provided by Customer which add to, remove, conflict with, or otherwise modify these Terms or the Agreement (including without limitation any acknowledgment, purchase order, confirmation, acceptance documents or other writing requested from and/or provided by Customer) are hereby expressly rejected and void. IBT’s failure to object to any such terms when and each time presented will not constitute a waiver by IBT, nor constitute acceptance by IBT of such terms and conditions. By accepting any Product(s) from IBT, Customer agrees to all of these terms without the need for any execution or delivery of any further instrument or agreement or other document.
24. General. (a) This Agreement constitutes a legal, valid and binding agreement by and between the parties. (b) Each party represents and warrants that it is authorized to enter into this Agreement and 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. (c) Each party are independent contractors and not an employee, agent, partner, joint venture, distributor or representative of the other. Neither party will have any right, power, or authority to assume, create or incur any expense, liability, or obligation, express or implied, on behalf of the other. (d) Illegality, invalidity or unenforceability of any provision will not impair, affect or invalidate any other provisions. (e) No course of dealing, trade usage, course of performance or failure or delay of IBT or Customer to strictly enforce any term, right or conditions of this Agreement will operate as a waiver of such term, right or condition. No express waiver of any term, right or condition of this Agreement will operate as a continuing waiver or waiver of any other term, right or condition. (f) Each term and condition under this Agreement will survive termination and expiration of this Agreement and remain in effect for so long as may be necessary to give effect to its purpose. (g) This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Facsimile and scanned signatures will be valid and binding to the same extent as original signatures. (h) This Agreement, including order form (whether online or separately signed) as applicable, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous oral and written proposals, quotations, representations, agreements and understandings. No additions, amendment, modification or waiver hereof will be effective unless made in writing signed by authorized representatives of both parties. This Agreement is binding on and inures to the benefit of the parties hereto and their respective successors and permitted assigns.