These Terms of Service constitute a legally binding agreement between you and Trilobio Inc. (together with its affiliates, “Company”, “we,” “our” or “us”) governing your use of our products, services, software application, and website (the “Site” and collectively with the foregoing, the “Services”).
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICES. These Terms of Service are effective as of the date you first click “I agree” (or similar button or checkbox) or use or access the Services, whichever is earlier. If you accept or agree to these Terms of Service on behalf of your employer or another legal entity, you represent and warrant that (i) you have full legal authority to bind your employer or such entity to these Terms of Service; (ii) you have read and understand these Terms of Service; and (iii) you agree to these Terms of Service on behalf of the party that you represent. In such event, “you” and “your” will refer and apply to your employer or such other legal entity.
Any personal data you submit to the us or which we collect about you is governed by our Privacy Policy (“Privacy Policy”), available at https://www.trilo.bio/privacy. You acknowledge that by using the Services, you have reviewed the Privacy Policy. The Privacy Policy is incorporated by reference into these Terms of Service and together form and are hereinafter referred to as this “Agreement.” This Agreement will govern as to the following terms unless the parties agree otherwise in a separate agreement.
Definitions and Interpretation
The following terms have their respective meanings set forth below, and grammatical variations have corresponding meanings.
“Affiliate” means, with respect to a Person, any entity that controls or is controlled by such Person, or is under common control with such Person, wherein an entity will be deemed to control another entity if it owns or controls, directly or indirectly, more than fifty percent (50%) of the voting equity of another entity (or other comparable interest for an entity other than a corporation).
“Company Software” means the software described in the applicable documentation, and software embedded in the Products (the “Company OS”).
“Company Technology” means all Technology to be provided, or that is actually provided, by Company to Customer, together with all improvements, modifications and enhancements of the foregoing, whether derived by or on behalf of either party.
“Confidential Information” means any and all proprietary or confidential data and information disclosed by a party (the “Discloser”) to the other party (the “Recipient”), or obtained by or on behalf of the Recipient through inspection or observation of the foregoing; in any case whether in writing, or in oral, graphic, electronic or any other form, and whether disclosed or obtained before, on, or after the Effective Date. Confidential Information does not include information to the extent that it (a) is or becomes publicly known through no act or omission of the Recipient, (b) was rightfully known by Recipient without confidential or proprietary restriction before receipt from the Discloser, (c) becomes rightfully known to Recipient by a third party without confidential or proprietary restriction, or (d) is independently developed by the Recipient without the use of or reference to the Confidential Information of the Discloser. For clarity and notwithstanding anything to the contrary in this Agreement, Company’s Confidential Information includes the Company Technology and any other nonpublic information about the Services.
“Customer Data” means non-public data provided by Customer and its Users to Company to enable the provision of the Services.
“Customer Materials” means Customer’s samples or other materials handled or processed through the Services.
“Derived” or “derived” means acquired, obtained, conceived, reduced to practice, developed, created, synthesized, derived or resulting from, based upon or otherwise generated (whether directly or indirectly, solely or jointly with others, or in whole or in part).
“Person” means an individual, corporation, partnership, trust, business trust, association, joint stock company, joint venture, pool, syndicate, sole proprietorship, unincorporated organization, governmental authority or any other form of entity.
“Technology” means any and all discoveries, inventions, processes, procedures, methods, uses, protocols, techniques, systems, platforms, architecture, algorithms, software, designs, developments, improvements, works of authorship, information or data fixed in any tangible medium of expression, know-how, ideas, mask works, trademarks, service marks, trade names, trade dress or other technology, intellectual property or other results of any type or nature whatsoever.
“Trilobots” means the robot offerings described in the applicable documentation.
As used in this Agreement: (a) the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation;” (b) the terms “hereof,” “herein,” “hereby,” “hereto,” and derivatives or similar words refer to this entire Agreement, including the Exhibits hereto; (c) the word “will” will be construed to have the same meaning and effect as the word “will;” and (d) references to “written” or “in writing” include writings in electronic form.
Mutual Representations and Warranties
Each party represents and warrants to the other party as follows:
(a) such party is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized;
(b) such party has the requisite power and authority and the legal right to enter into this Agreement and to perform its obligations hereunder; and has taken all requisite action on its part to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder;
(c) this Agreement has been duly executed and delivered on behalf of such party, and constitutes a legal, valid, binding obligation, enforceable against such party in accordance with its terms;
(d) all necessary consents, approvals and authorizations of all governmental authorities and other persons or entities required to be obtained by such party in connection with this Agreement have been obtained; and
(e) the execution and delivery of this Agreement and the performance of such party’s obligations or exercise of such party’s rights hereunder do not conflict with or violate any requirement of applicable laws, regulations or orders of governmental bodies; and do not conflict with, or constitute a default under, any contractual obligation of such party.
Shipping
Company may defer shipment of any Products if and while Customer is in default of any of its obligations owing to Company under this Agreement, including in the event that Customer is more than 30 days past due with respect to any payment obligations, unless Customer disputes such amount in good faith. Customer will be responsible to pay all carrier costs, shipping and handling charges, insurance charges, and all customs duties, taxes and any other charges levied by any governmental body in connection with shipping of the Products. Any time quoted for delivery is an estimate only. No delay in the shipment or delivery of any Products relieves Customer of its obligations under this Agreement.
Export Laws
Customer will comply fully with all relevant export laws and regulations of the United States and any other country where Customer access or use any portion of the Products or Services and other subject matter made available hereunder (“Export Laws”). Customer certifies that Customer is not on any of the relevant U.S. government lists of prohibited persons, including the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List. Customer further certifies that Customer will not export, re-export, ship, transfer, or otherwise use the Products or Services or any other subject matter made available hereunder in any country subject to an embargo or other sanction by the United States, including Iran, Syria, Cuba, Sudan, and North Korea and that Customer will not use the Services or any other subject matter made available hereunder for any purpose prohibited by the Export Laws.
Company Technology
Customer acknowledges that, as between Company and Customer, Company is the sole owner or licensee of the Company Technology, together with all intellectual property rights therein and thereto, and Customer hereby assigns to Company all right, title and interest in and to the foregoing. Customer may use the Company Technology during the term of this Agreement solely for its own internal use in connection with the Services and not for any other purpose. Customer will not (and will not attempt or purport to) file, prosecute or support in any country any patent application which claims or uses or purports to claim or use the Company Technology or its use, without the prior express written consent of Company. Customer will not transfer the Company Technology, or any information or other materials directly or indirectly derived therefrom, to any third party without the prior express written consent of Company. Customer will limit transfer and disclosure of the Company Technology, and any information or other materials directly or indirectly derived therefrom, on a need to know basis, as reasonably necessary to exercise its rights hereunder, to its employees who are bound by written agreements with Customer to hold in confidence and not make use of the Company Technology, and such information and other materials, for any purpose other than those permitted by this Agreement. Customer will notify Company promptly upon discovery of any unauthorized use or disclosure of the Company Technology. This clause will survive termination of this Agreement.
Access to Company Software
If agreed to between the parties, Company may deliver certain Company Software to Customer and Customer may access and use the Company Software during the applicable term and in accordance with the terms and conditions of this Agreement, any applicable documentation. Access to and use of the Company Software is permitted only by personnel of Customer designated by Customer (“Users”). Customer may permit its independent contractors and consultants and Affiliates to serve as Users, provided that any use of the Service by each such contractor or Affiliate is solely for the benefit of Customer. The total number of Users who are permitted access to and use of the Company Software shall not exceed the number of authorized Users expressly agreed to in writing by the parties and subject to any appropriate adjustment of Fees payable hereunder. Customer will be responsible for compliance by each User with all of the terms and conditions of this Agreement, any applicable documentation.
License to Company OS
Notwithstanding anything to the contrary in this Agreement, Company OS is licensed to Customer, not sold. Company hereby grants to Customer a non-exclusive, non-transferable license to install and use the Company OS solely for the operation of Products purchased under this Agreement.
Certain Restrictions
Customer will not, directly or indirectly, (and will not permit any third party to):
(a) sell, rent, lease, license, distribute, provide access to, sublicense or otherwise make available the Company Software to a third party (except as expressly set forth in this Section) or in a service bureau or outsourcing offering;
(b) reverse engineer, decompile, disassemble or otherwise seek to obtain the source code to the Company Software, except to the extent expressly permitted by applicable law (and then only upon advance written notice to Company);
(c) remove or obscure any proprietary or other notices contained in the Company Software;
(d) modify, translate, or create derivative works based on the Company Software (except to the extent expressly permitted by Company or authorized within the Services);
(e) use the Company Software to violate any international, federal, provincial or state regulations, rules, laws or local ordinances;
(f) interfere with or engage in any activity that threatens the performance, security or proper functioning of the Company Software;
(g) attempt to bypass any security features of the Company Software;
(h) use the Company Software for any purpose or in any manner that infringes the rights of any third party; or
(i) without the prior written consent of Company make or permit any changes or alterations to the Company Software. All changes or alterations which are added to or become attached to the Company Software will immediately become part of the Company Software and subject to the terms and conditions of this Agreement.
Customer Materials and Data
Customer acknowledges that certain data or information derived from the Customer Materials may be made available to Company through the Services, (such data or information, the “Sample Data”). As between the parties, Customer retains all right, title and interest (including any and all intellectual property rights) in and to the Customer Data, including Sample Data. Customer hereby grants Company a non-exclusive, worldwide, royalty-free license and right (with the right to grant sublicenses through multiple tiers) to use, copy, store, transmit, modify, create derivative works of, display and otherwise exploit Customer Data (a) to provide the Services to Customer during the term agreed upon between the parties, (b) for purposes of improving Company’s products and services, and (c) creating de-identified or anonymized data sets that do not directly or indirectly identify Customer or any User (“Aggregate Data”), which will be owned solely by Company. Aggregate Data may be made publicly available and may be used for any legal purpose, so long as the Aggregate Data does not directly or indirectly identify Customer or any User. Customer represents and warrants that none of the Customer Materials and Customer Data nor the use thereof will infringe, misappropriate or otherwise violate any right of any third party. Customer acknowledges that the Products or Services may provide to Company, and Company may monitor, collect, use, and store statistical and other usage data related to Customer’s use of the Products or Services, such as information on the Products’ or Services’ performance, uptime, and diagnostics (“Usage Data”). As between Company and Customer, Company solely owns all Usage Data, Usage Data may be made publicly available and may be used for any legal purpose, so long as the Usage Data does not directly or indirectly identify Customer or any User. This clause will survive termination of this Agreement.
Customer Equipment
Customer will be solely responsible, at Customer’s expense, for acquiring, installing and maintaining all connectivity all equipment, hardware, software and other equipment as may be necessary to access and use the Services (“Customer Equipment”). Customer will comply with Company’s then-current minimum hardware, equipment and infrastructure requirements for access to and use of the Services that may be provided to Customer by Company. Customer will also be responsible for maintaining the security of the Customer Equipment, and for all uses of the Customer Equipment with or without Customer’s knowledge or consent.
No Implied Rights or Licenses
Only rights and licenses expressly granted herein will be of legal force and effect. No license or other right will be created hereunder by implication, estoppel or otherwise. This clause will survive termination of this Agreement.
Fees and Payment
Customer will pay all fees charged by the Company and will reimburse all reasonable expenses Company incurs in providing the Services. Unless otherwise set forth in a separate agreement, Company will invoice Customer for the Services on an annual basis beginning on the Effective Date, and Customer will pay all invoiced amounts within 30 days after receipt of each invoice. Company may charge interest for any past due amounts at the lesser rate of 1.5% per month or the highest rate allowed by law, and Customer will indemnify Company for all costs, including expenses and attorney’s fees, Company incurs in the collection of overdue payments. All fees paid are non-refundable. Customer will be responsible for all sales, use, value added, withholding or other taxes or duties arising under or otherwise in connection with this Agreement, other than Company’s income taxes. If Company pays any such taxes on Customer’s behalf, Customer will promptly, but in no event more than 10 days after Company’s invoice to Customer, reimburse Company for such payment.
No Other Terms
The terms and conditions contained in any purchase order or other document supplied by Customer are expressly rejected by Company and superseded by this Agreement, unless agreed to in a writing signed by both parties.
Shipping and Handling
Shipping and handling charges are not included in the Fees. Company may prepay the cost of shipping any Products and add such cost to invoices to Customer as a separate line item that is identified as either a “freight,” “shipping” or “handling” charge. Unless otherwise specified by Customer, all orders will be sent by such transportation means, mode and carrier as selected by Company. Unless otherwise agreed, Company will exercise its own discretion with respect to the manner of shipment, packaging, insurance, carrier and the like. Company reserves the right to make partial shipments. Customer will be charged all applicable taxes unless tax exemption certificates are provided to Company.
Limited Warranty
Company warrants to Customer that (a) the Services will be performed with reasonable care in a diligent and workmanlike manner, consistent with industry standards, and (b) under normal use, and when used in accordance with the applicable instructions, for the amount of time agreed to between the parties in writing, the Products (i) are of good quality and free from material defects, and (ii) function in accordance with the material specifications referenced in the documentation. The foregoing warranty will apply for the amount of time agreed to between the parties in writing (the “Warranty Period”), and excludes coverage for damage that occurs from misuse or abuse, theft of the Product, damage as a result of acts of nature (i.e. fire, flood, lightning, power outages, internet issues), damage caused by failure to follow use and care instructions or provided documentation, modifications made by Customer, use by an untrained or unauthorized individual, minor imperfections that do not affect the performance or functionality of the Product, damage to laboratory samples, specimens, reagents, chemicals, patient samples, or non-Company-approved laboratory supplies, and normal wear and tear.
Warranty Claim
Should the Products become inoperable or otherwise fail to perform in accordance with the performance specifications during the Warranty Period, Customer will so inform Company. Company will promptly respond to such inquiries during the applicable Warranty Period.
Exclusive Remedy
REMEDIES AGAINST COMPANY FOR BREACH OF THE FOREGOING WARRANTY OR OTHER RELATED OBLIGATIONS ARE LIMITED, AT COMPANY’S ELECTION, SOLELY TO (A) REPERFORMANCE OF THE APPLICABLE SERVICES, (B) REPLACEMENT OF THE AFFECTED PRODUCT, (C) REPAIR OF AFFECTED PRODUCT UNDER THIS CLAUSE, OR (D) REFUNDING THE APPLICABLE FEES FOR THE AFFECTED PRODUCT OR SERVICES. Any such claim against Company must be made in writing and promptly pursued within the applicable Warranty Period. The foregoing warranty will not apply if the Product has been subjected to: (a) physical abuse, misuse, abnormal use or use not consistent with Company’s published directions; (b) modification or repair by anyone other than Company or third parties designated by Company; (c) fraud, tampering, unusual physical stress, negligence or accidents; (d) removal or alteration of the serial number tag; or (e) improper packaging of returns.
Warranty Disclaimer
EXCEPT FOR THE LIMITED WARRANTY STATED ABOVE, COMPANY HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” COMPANY NEITHER ASSUMES NOR AUTHORIZES ANY EMPLOYEE, AGENT OR OTHER PERSON OR ENTITY TO ASSUME FOR COMPANY ANY LIABILITY HEREUNDER. COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE ACTUAL AMOUNT PAID BY CUSTOMER TO COMPANY. CUSTOMER HAS ACCEPTED THIS WARRANTY DISCLAIMER AS PART OF A BARGAIN WITH RESPECT TO THE PRICING OF THE SERVICES AND UNDERSTANDS THAT THE PRICING WOULD BE HIGHER IF COMPANY WERE REQUIRED TO BEAR LIABILITY IN EXCESS OF THAT STATED HEREIN. This clause will survive termination of this Agreement.
Support and Maintenance
Company will use reasonable efforts to provide to Customer with reasonable support and maintenance services as may be agreed to in writing between the parties. Customer will permit Company, upon reasonable notice and during normal business hours, to access to such facility as is reasonably necessary for Company to perform its support and maintenance obligations under this Agreement. Company will not be responsible for any delays or other non-performance if caused in whole or in part by any act or omission performed by or on behalf of Customer (other than by Company) or any failure or delay in Customer providing access to any portion of the Product or Customer’s facilities.
Notwithstanding anything to the contrary stated in this Agreement, Company is not obligated to provide support or maintenance services if the problem or incident at issue resulted from any of the following: (a) use of the Products with items not manufactured by or for Company, or not in conformance with the instructions for use provided by Company and all other documentation for the Products, (b) the negligent or intentional acts of Users, Customer, its agents or employees, (c) a casualty event (including fire, natural disaster, theft or other disappearance), (d) physical abuse, misuse, abnormal use or use not consistent with Company’s published directions, (e) modification or repair by anyone other than Company or third parties designated by Company, or (f) fraud, tampering, unusual physical stress, negligence or accidents.
Limited Liability
IN NO EVENT WILL COMPANY BE LIABLE OR OBLIGATED TO CUSTOMER IN ANY MANNER FOR ANY INDIRECT DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND LOST REVENUE, EVEN IF INFORMED OF OR AWARE OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. COMPANY’S MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL BE THE AMOUNTS PAID BY CUSTOMER IN THE TWELVE (12) MONTHS PRIOR TO THE INCIDENT GIVING RISE TO LIABILITY. THE LIMITATIONS SET FORTH ABOVE WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES. THE PARTIES AGREE THAT THE LIMITED WARRANTIES AND LIMITED LIABILITY ALLOCATE THE RISKS OF THESE TERMS AND CONDITIONS BETWEEN THE PARTIES, AND THAT SUCH ALLOCATION OF RISK IS REASONABLE. THIS ALLOCATION IS REFLECTED IN THE PRICING OF THE PRODUCTS AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. This clause will survive termination of this Agreement.
Confidentiality
Each party (a) will maintain in confidence the Confidential Information of the other party, (b) will not use or grant the use of the Confidential Information of the other party except to the extent reasonably necessary in connection with such party’s activities as expressly authorized by this Agreement, and (c) will not disclose the Confidential Information of the other party except on a need-to-know basis to such party’s directors, officers, employees, vendors and consultants, provided they are under a written obligation to maintain the confidentiality of the Confidential Information, to the extent such disclosure is reasonably necessary in connection with such party’s activities as expressly authorized by this Agreement.
Each party will notify the other party promptly upon discovery of any unauthorized use or disclosure of the other party’s Confidential Information. Each party agrees that the terms and conditions of this Agreement will be treated as Confidential Information of both parties and will not be disclosed to any third party; provided, however, that each party may disclose the terms and conditions of this Agreement:
(i) to such party’s legal counsel, accountants, banks, financing sources and their advisors;
(ii) in connection with the enforcement of this Agreement or rights under this Agreement; or
(iii) in connection with an actual or proposed equity investment, merger, acquisition or similar transaction.
The confidentiality and non-disclosure obligations hereunder will not apply to the extent that a party is required to disclose information by applicable law, regulation, rule (including rule of a stock exchange or automated quotation system), or order of a governmental agency or a court of competent jurisdiction or legal process, including tax authorities (in each case as determined by the party’s legal counsel); provided, however, that the party will, to the extent reasonably feasible, provide advanced written notice of such disclosure to the other party, consult with the other party with respect to such disclosure and provide the other party sufficient opportunity to object to any such disclosure or to request confidential treatment or a protective order (if applicable). This clause will survive termination of this Agreement.
Feedback
Notwithstanding anything to the contrary herein, Company may freely use, incorporate into Company’s products and services, and otherwise exploit for no additional consideration any suggestions, enhancement requests, recommendations, corrections or other feedback provided by Customer or by any users of the Services. This clause will survive termination of this Agreement.
Company Indemnification
Company will defend, indemnify and hold harmless Customer and its directors, officers, employees and agents from and against any and all losses, liabilities, damages and expenses (including reasonable attorney’s fees and costs of litigation) (“Losses”) incurred as a result of any third-party claim, demand, action or proceeding (each, a “Claim”) to the extent arising out of the Products or Services (solely in the form delivered to Customer) infringing any intellectual property of any third party.
In the event of any Claim that all or a portion of the Services infringes, misappropriates, or otherwise violates any intellectual property right of a third party or if Company believes such a Claim may be brought, Company may, in its sole discretion
(i) replace the applicable Product or Services with substantially similar services that are reasonably acceptable to Customer,
(ii) modify the applicable Product or Services in a manner reasonably acceptable to Customer,
(iii) procure for Customer the right to continue using the Product or Services, or
(iv) terminate this Agreement upon 30 days written notice to Customer.
Company will not be responsible for any Losses in excess of the Fees actually received for the applicable Products or Services.
Customer Indemnification
Customer will defend, indemnify and hold harmless Company, its Affiliates and its and their respective directors, officers, employees and agents from and against any and all Losses incurred as a result of any Claim (including for bodily injury (including death), personal injury and property damage) to the extent arising out of
(a) Customer’s or its User’s use of the Products or Services,
(b) Customer’s failure to comply with laws applicable to this Agreement, or
(c) Customer’s breach of this Agreement.
This clause will survive termination of this Agreement.
Indemnification Procedure
A party (the “Indemnitee”) that intends to claim indemnification hereunder will promptly notify the other party (the “Indemnitor”) of any Claim for which the Indemnitee intends to claim such indemnification. The Indemnitor will have the right to participate in, and to the extent the Indemnitor so desires jointly with any other Indemnitor similarly noticed, to assume the defense thereof with counsel selected by the Indemnitor; provided, however, that the Indemnitee will have the right to retain its own counsel, with the fees and expenses to be paid by the Indemnitor, if representation of the Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceedings.
The indemnity obligations hereunder will not apply to amounts paid in settlement of any Claim if such settlement is effected without the prior express written consent of the Indemnitor, which consent will not be unreasonably withheld or delayed. The failure to deliver notice to the Indemnitor within a reasonable time after notice of any such claim or demand, or the commencement of any such action or other proceeding, if prejudicial to its ability to defend such Claim, will relieve such Indemnitor of any liability to the Indemnitee hereunder with respect thereto, but the omission to deliver notice to the Indemnitor will not relieve it of any liability that it may have to the Indemnitee otherwise than hereunder.
The Indemnitor may not settle or otherwise consent to an adverse judgment in any such Claim that diminishes the rights or interests of the Indemnitee without the prior express written consent of the Indemnitee, which consent will not be unreasonably withheld or delayed. The Indemnitee, its employees and agents, will reasonably cooperate with the Indemnitor and its legal representatives in the investigation of any Claim covered hereby. This clause will survive termination of this Agreement.
Marketing
Company may use and display Customer’s name, logo, trademarks and service marks on Company’s website and in Company’s marketing materials in connection with identifying Customer as a customer of Company. Upon Customer’s written request, Company will promptly remove any such marks from Company’s website and, to the extent commercially feasible, Company’s marketing materials.
Miscellaneous
Any consent, notice or report required or permitted to be given or made under this Agreement by one of the parties to the other will be in writing and addressed to such other party at its address indicated on the order form providing the shipping address, or to such other address as the addressee will have last furnished in writing to the addressor, and will be effective upon receipt by the addressee.
Neither this Agreement nor any right or obligation hereunder may be assigned or otherwise transferred (whether voluntarily, by operation of law or otherwise) by Customer, without the prior express written consent of Company; provided, however, that either party may, without such consent, assign this Agreement and its rights and obligations hereunder in connection with the transfer or sale of all or substantially all of its business, or in the event of its merger, consolidation, change in control or similar transaction. Any permitted assignee will assume all obligations of its assignor under these Terms and Conditions. Any purported assignment or transfer in violation hereof will be void.
This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to the conflicts of law principles thereof. The United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded from application to this Agreement.
All disputes and litigation arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state or federal courts sitting in San Francisco County, California (the “Chosen Courts”) in any litigation arising out of or relating to this Agreement or the Services, agrees that all claims in respect of any such litigation will be heard and decided only in any such Chosen Court, waives any claim of inconvenient forum or other challenge to venue in any such Chosen Court, and agrees not to bring or maintain any such litigation before any tribunal other than the Chosen Courts (except, for clarity, in any proper appeal from a Chosen Court).
This Agreement, including these Terms and Conditions, the Company-Owned Materials Addendum (if applicable) and all other documents and agreements incorporated herein by reference, contain the entire understanding of the parties with respect to the subject matter hereof. All express or implied representations, agreements and understandings with respect to the subject matter hereof, either oral or written heretofore made are expressly superseded by this Agreement.
Each party hereby acknowledges that the parties will be independent contractors and that the relationship between the parties will not constitute a partnership, joint venture or agency. Neither party will have the authority to make any statements, representations or commitments of any kind, or to take any action, that will be binding on the other party, without the prior consent of the other party to do so.
No waiver, alteration or modification of any of the provisions hereof will be binding on Customer or Company unless made in writing and duly authorized and executed by Customer or Company, as applicable. A waiver or modification by Customer or Company of any condition or obligation of Customer hereunder will not be construed as a waiver or modification of any other condition or obligation, and no waiver or modification by Customer or Company granted on any one occasion will be construed as applying to any other occasion.
Company will use its reasonable efforts to fill orders, but Company will not be liable for nonperformance or delays caused by a shortage of raw materials, delivery or labor problems, acts of regulatory agencies, discontinuation of a product line, acts of God, acts of terrorism or other causes beyond its control. Customer agrees that in such event Company, at its sole option and discretion, may allocate Services among its customers without liability.
If any provision is deemed by a court of competent jurisdiction to be unenforceable or invalid, that provision will be stricken or modified so as to be enforceable to the maximum extent permitted by law, and the remainder of this Agreement will be in full force and effect. This clause will survive termination of this Agreement.