1. Agreement General.
a. Entire Agreement. These Standard Terms and Conditions of Purchase, any written quotation issued by Countable Labs ("Quotation") and accepted by the entity identified as the Customer thereon (“Customer”), as well as any Supplemental Terms (as defined in Section 1.b.ii below), and any exhibits or attachments attached hereto or referenced herein constitute the entire agreement between Countable Labs, Inc. (“Countable Labs”) and Customer (the “Agreement”) that governs the Purchases of the equipment and performance of the services described in the applicable Quotation (respectively, “Equipment” and “Services”).
b. Other Terms.
 i. Separate Contract. If a written contract signed by both parties  exists and is referenced in the applicable Quotation to govern the Purchase of the Equipment and/or performance of the Services specified on such Quotation, if to the extent a conflict arises between such contract and this Agreement, the terms of such signed contract shall take precedence over any conflicting terms in this Agreement.
 ii. Supplemental Terms. Any supplemental terms either accompanying the Equipment or identified in the applicable Quotation—such as licensing restrictions, permitted field-of-use, or site limitations (“Supplemental Terms”)—shall apply in addition to and form part of this Agreement.
 iii. Order of Precedence. If any terms contained in the various documents referenced in this Agreement conflict, the following order of precedence (from the highest to the lowest) shall apply: (a) the Quotation; (b) any applicable Supplemental Terms; and (c) these Standard Terms and Conditions of Purchase.
c) Scope. Countable Labs agrees to allow Purchase of Equipment and perform any associated Services, subject to the terms and conditions of this Agreement.
d) Acceptance and Effect. This Agreement becomes effective upon the earliest of Customer’s receipt of confirmation that Countable Labs has accepted the applicable Purchase request or other written order (“PO”) submitted by Customer, or Customer’ acceptance of the applicable Quotation. By submitting a PO, accepting a Quotation, accepting delivery of Equipment, or allowing commencement of Services, Customer agrees to be bound by this Agreement, regardless of whether Customer signs or otherwise acknowledges this Agreement.
e) Amendment. This Agreement may only be amended, modified, or supplemented by a written document mutually signed by an authorized representative of Countable Labs and Customer. Countable Labs expressly rejects any additional or conflicting terms or conditions that (a) appear in any PO, pre-printed form, online agreement, or other communication from Customer, or (b) arise from prior dealings, trade practices, or verbal agreements not confirmed in writing and signed by Countable Labs. Such terms shall be deemed null and void without the need for Countable Labs to specifically reject them.
2. Changes.
Countable Labs reserves the right to modify the specifications, designs, drawings, samples, quantities, prices, terms, conditions, requirements, or descriptions applicable to the Equipment or Services at any time. Countable Labs is not bound by any descriptions, specifications, or other information contained in advertisements, publications, brochures, or pamphlets.
If such changes result in an increase or decrease in the cost or time required for performance under this Agreement, Countable Labs and Customer shall engage in good faith discussions to determine whether a written amendment to the Agreement is appropriate to adjust the price, delivery schedule, or both. Any request by Customer for such an adjustment must be submitted in writing within thirty (30) days of receiving notice of the change from Countable Labs.
Nothing in this section shall relieve Customer of its obligation to proceed without delay in performing the PO as modified.
3. Cancellations.
A PO is considered a firm offer and may not be revoked or canceled by Customer at any time after receipt by Countable Labs. Countable Labs reserves the right to reschedule any delivery or cancel any PO at its discretion, without being liable for any charges or fees resulting from such cancellation. ‍
4. Shipment.
All Equipment shall be packed in Countable Labs's standard shipment packaging, marked, and shipped in accordance with Countable Labs’s applicable specifications (or if no specifications are provided, in accordance with reasonable commercial practices) using a carrier of Countable Labs’s choice. Equipment may be shipped, depending on lead time and availability, in installments. Each installment shall be invoiced and considered a separate Purchase. Unless otherwise agreed, Customer shall clear any imported Equipment at the point of import and pay all relevant duties. The shipping terms set forth in the applicable Quotation shall apply, in the absence of which, risk of loss of the Equipment will pass to Customer when Countable Labs load such Equipment onto the commercial carrier at its facility.
5. Delivery.
Countable Labs will make commercially reasonable efforts to deliver the Equipment on the date stated in the order confirmation (if applicable). However, these dates are only estimates and not guaranteed. They do not constitute a term or condition of this Agreement. Countable Labs accepts no liability for failing to meet these dates, and such failure does not permit the Customer to reject or cancel a PO or terminate this Agreement.
If Countable Labs delivers fewer Equipment than specified in the PO, Customer shall notify Countable Labs of the discrepancy. Countable Labs will then deliver the confirmed missing Equipment. If Countable Labs delivers excess Equipment, Customer shall return the overshipment to Countable Labs or notify Countable Labs of their intent to keep it. Customer shall pay for the quantity of Equipment actually accepted.
6. Inspection and Claims.
Customer shall inspect all deliveries immediately upon receipt. If visible damage is observed, Customer must ensure the carrier notes the damage on both the carrier’s and Customer’s copies of the delivery receipt before accepting the shipment. Customer shall also promptly inspect for any concealed damage, defects, or shortages, and must notify Countable Labs of any such issues. Failure to notify Countable Labs within seven (7) days of delivery constitutes a waiver of any claims related to such damage, defects, or shortages.
7. Acceptance.
Unless otherwise agreed in writing by the parties or required by law, acceptance of the Equipment shall be deemed to occur seven (7) days after delivery. No returns of Equipment will be accepted without prior written authorization from Countable Labs. Customer may only return any Equipment that is damaged or defective on delivery, provided that Customer submit a return claim within seven (7) days of delivery of such Equipment to the address set forth on the applicable Quotation, and provided such damage or defect has not been caused by any failure by the Customer or the carrier to handle or store the Equipment using reasonable care or as otherwise indicated on the label or applicable documentation made available by Countable Labs. Customer must obtain a return authorization number and follow Countable Labs' return instructions, including use of the specified courier and compliance with applicable temperature and handling guidelines. Equipment must be returned in their original condition. Countable Labs reserves the right to apply a restocking fee for returns of conforming Equipment.
8. Service & Support.
Subject to the terms and conditions of this Agreement (including Customer’s payment of the applicable support fees), Countable Labs will provide Customer with access to the service and support services as set forth at the “Support Policy”, which may be updated from time to time at Countable Labs’ sole discretion, for any purpose deemed appropriate by Countable Labs. Countable Labs will use reasonable efforts to give Customer prior written notice of any material changes that would adversely affect Customer’s use of the Equipment.
9. Prices and Payment.
a. All prices for the Equipment and/or Services are stated in the currency shown on the applicable Quotation and are exclusive of all taxes, withholdings, excises, freight, and insurance. Customer is responsible for these additional charges. If Countable Labs pays for any of these charges on Customer’s behalf, such charges will be itemized separately
on the applicable Invoice. If no price is specified, the applicable price shall be Countable Labs’s then-current published price in the country where Customer is located. Prices do not include installation or training unless expressly stated in writing. Payment is due, and Customer shall pay Countable Labs, pursuant to the payment terms as specified in the Quotation or Invoice and in no case later than thirty (30) days from the date of the Invoice. In the event of a reasonable dispute, Countable Labs may, at its sole discretion, delay enforcement of collection beyond the thirty (30) day period. Countable Labs reserves the right to modify credit terms or deny credit at any time, in its sole discretion.
10. Exclusions & Additional Costs
a. Consumables and Reagents. Consumables, reagents, and accessories are not included in the purchase price for the Equipment and must be purchased separately. Only Countable Labs–approved reagents, consumables, and accessories may be used with the Equipment. Use of unapproved third-party equipment voids support eligibility.
b. Third-Party Modifications and Costs. Any modifications, add-ons, or non-standard components required by Customer in connection with the use of the Equipment shall be at Customer’s sole expense. Countable Labs shall have no obligation to support or service Equipment that has been modified or used in conjunction with third-party components.
c. Overdue Accounts. Countable Labs reserves the right to charge interest on overdue amounts at a rate of 1.5% per month (18% per annum), or the maximum rate permitted by law, accruing from the date the payment became overdue. Countable Labs also reserves the right to cancel or stop delivery of Equipment in transit and withhold shipments in whole or in part if Customer fails not pay any amount when due, or if Customer otherwise fails to perform its obligations under this Agreement. Countable Labs reserves the right to recuperate, and Customer agrees to pay Countable Labs for, all unpaid amounts, including reasonable costs incurred in collecting delinquent accounts, including attorney’s fees, court costs, and third-party collection agency fees. These remedies are in addition to, and not in lieu of, any other rights or remedies available under this Agreement or applicable law.
d. Security Interest. As security for Countable Labs’s rights and performance of Customer's payment obligations under this Agreement and any damages resulting from violation of such rights or breach of such obligations, Customer hereby grants Countable Labs a first priority security interest in all the Equipment and all rights related thereto, whether held currently or hereafter acquired, and all proceeds with respect thereto or from the use thereof (collectively, the “Collateral”), Customer agrees to execute such additional documents, including financing statements, and take such other actions as Countable Labs deems necessary to perfect and maintain the security interest granted herein.
11. Title
Title to all Equipment delivered under this Agreement remains with the Seller until the Customer has paid all sums owing to the Seller in connection with this Agreement. Until such time, Customer shall hold the Equipment as bailee for the Seller and shall keep the Equipment separate from other goods and clearly identified as the property of the Seller. The Customer shall not sell, pledge, charge, encumber or otherwise dispose of, or allow any lien to be attached to, the Equipment until title has passed to the Customer. Any of the following shall be deemed as an event of default:
(a) failure of Customer to pay any payment within fifteen (15) days in which same becomes due; or
(b) insolvency or bankruptcy of Customer, assignment by Customer for the benefit of creditors, appointment of a trustee or receiver for Customer or its property, or similar proceeding.
Upon the occurrence of any such event of default, Countable Labs may, without notice to or demand on Customer, directly or by its agent, enter upon the premises of Customer or other premises where such Equipment may be and take possession thereof and thenceforth hold, possess and enjoy the same, free from any right of Customer or its successors or assigns, including any receiver, trustee in bankruptcy, or creditor of Customer, to hold or use such Equipment for any purposes whatsoever. Countable Labs shall nevertheless have a right to recover from Customer any and all amounts including all fees which may be then due and unpaid hereunder for such Equipment under the terms of this Agreement, together with any other remedies available under the law or in equity.
12. Limited Licenses.
a. General. Subject to the terms of this Agreement and any applicable license provided by Countable Labs specific to a particular Equipment (which shall control in the event of a conflict with the terms in this Section 12.a), Countable Labs grants Customer a nonexclusive, non-transferable, non-sublicensable license, under Countable Labs’ intellectual property embodied in any Equipment purchased by Customer, to use the quantity of the Equipment(s) purchased by Customer solely for Customer’s research use purposes and in accordance with the applicable documentation and Countable Labs’ written manuals and instructions. Customer acknowledges and agrees that, except as expressly stated in this Agreement or in a equipment-specific license provided by Countable Labs, no rights or licenses under any patent or other intellectual property owned or licensable by Countable Labs are granted or implied. No rights are granted to use any Equipment in combination with any equipment not supplied, licensed, or expressly recommended by Countable Labs for such use. This limited license permits Customer to use the Equipment only in compliance with applicable local laws and regulations and solely in the ordinary course of its business. All licenses granted hereunder will automatically terminate when Customer’s lawful possession of the associated hardware Equipment provided hereunder ceases, unless earlier terminated as provided in this Agreement.
b. Equipment-Specific Licensing Terms. This Section 12.b applies to the purchase of any Equipment that is a Countable PCR and Universal Multiplex equipment from Countable Labs, and controls in the event of any conflict with any terms hereunder. Subject to the terms of this Agreement, Countable Labs grants Customer a limited, non-transferable, non-exclusive, and non-sublicensable license under Countable Labs’ intellectual property rights embodied in such Equipment, to use the quantity of such Equipment solely for Customer’s research use purposes and in accordance with the applicable equipment documentation and instructions for use.
c. Separate License. Unless expressly authorized in a separate agreement mutually agreed by the Parties in writing, no rights are granted to distribute, resell, transfer, or otherwise make available the Equipment to any third party. The development of commercial products, or the sale of products intended for use, with any Equipment, requires a separate commercial license from Countable Labs. For information regarding such licensing, please contact Countable Labs. It is the sole responsibility of the Customer and/or its end users to obtain any additional intellectual property rights that may be necessary for their intended use of any Equipment. The Equipment and/or their use may be covered by claims of U.S. patents, and/or pending U.S. and non-U.S. patent applications owned by or under license to Countable Labs, Inc.
d. Software. With respect to any software incorporated in any Equipment ("Software"), Countable Labs grants to Customer a royalty-free, non-exclusive, non-sublicensable, and non-transferable license to use the Software and any related documentation provided to Customer under this Agreement solely for Customer's research use purposes and solely as incorporated in such Equipment purchased by Customer. Customer acknowledges and agrees that the Software and related documentation is provided under license, and not sold, to Customer. All restrictions, limitations, terms and conditions hereunder that apply to the Equipment on which any Software is incorporated shall equally apply to such Software.
e. Third Party Materials. The Equipment may contain software, content, data, or other materials, including related documentation, that are owned by parties other than Countable Labs and are provided to Customer on terms that are in addition to or different from those contained in this Agreement ("Third Party Licenses"). Customer is bound by and will comply with all Third Party Licenses and any breach of any Third Party License shall be a breach of this Agreement.
f. Termination. Customer is responsible and liable for all uses of the Equipment provided by Countable Labs. Countable Labs may, at its sole discretion, terminate any and all licenses granted hereunder if Customer fails to comply with any term or condition herein, in which event Customer shall immediately cease any use covered by such terminated license.
13. Equipment Marketed for Research Use Only.
Equipment and any related technology or materials marketed by Countable Labs for research use only have not been approved, cleared, or registered by the U.S. Food and Drug Administration ("FDA") or any other applicable regulatory authority for in vitro diagnostic ("IVD") or clinical diagnostic use. No license is granted or implied for Customer to use such products for any purpose that requires FDA or other regulatory approval, clearance, or registration, and Countable Labs does not promote, endorse, or support such uses. No rights are granted to use such Equipment in any commercial application, including manufacturing, quality control, commercial services such as reporting the results of any activities for a fee or other consideration. The Equipment are not intended, labeled or sold for diagnostic or therapeutic use, or as medical devices, or for any type of consumption by or application to humans or animals. Customer assumes full responsibility, and shall indemnify Countable Labs, for any use of the Equipment in a diagnostic or regulated setting, including compliance with all applicable laws, regulations, and validation requirements.
14. Use Restrictions.
Customer shall ensure that only appropriately trained personnel use the Equipment. Customer is not licensed to, and agrees not to: (a) resell, transfer, distribute, or otherwise make available any Equipment supplied by Countable Labs, directly or indirectly, to any third party for any purpose or use without prior written authorization from Countable Labs; (b) export or re-export the Equipment from the country or region in which they were originally purchased; (c) disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement any Equipment provided hereunder without prior written consent of Countable Labs; (d) modify, change, remove, cover or otherwise obscure any of the brands, trade or service marks, or any product identification or notices of any proprietary restrictions on the Equipment; (e) sell, pledge, or otherwise dispose of or encumber, or allow any lien to be attached to, the Equipment; or (f) permit any third party to do any of the foregoing.
15. Warranty.
The warranty provided hereunder is only applicable to the Customer. No third party claims will be honored. Subject to the limitations and exclusions set forth herein, Countable Labs makes the warranties set forth in subsections (a) through (c) to the Customer.
a. Equipment that are instruments sold with warranty as specified on the applicable Quotation are typically warrantied against material defects in materials and workmanship for twelve (12) months from the date of delivery by Countable Labs, unless a different warranty period is stated on the packaging inserts or on the Quotation ("Warranty Period"). If Countable Labs receives notice of defects during the Warranty Period, Countable Labs shall, at its sole discretion, either repair or replace such Equipment which prove to be defective and not caused by any exclusion stated in Section 14 (Warranty Exclusions) below.
b. Equipment that non-consumable spare parts purchased by Customer are warrantied to be free of material defects in materials and workmanship for three (3) months from the date of delivery, subject to normal, proper and intended usage by properly trained personnel.
c. Customer agrees to provide full access to its premises for the purpose of installation or repair, and guarantees that all Equipment, instruments and work areas that are in contact with biohazardous or hazardous materials are decontaminated prior to service intervention or return of Equipment to Countable Labs for service.
d. Customer will promptly notify Countable Labs of any change in location to installed Equipment during the applicable Warranty Period.
e. During the applicable Warranty Period only, for any Equipment not meeting the applicable warranties set forth above under subsections (a) through (c), Countable Labs will, in its sole discretion, either (i) repair or replace such Equipment and/or provide additional parts as reasonably necessary to comply with such warranty obligations, or (ii) require return of the such Equipment and issue a pro-rata refund of the purchase price, with a deduction in a reasonable amount for the Equipment’s use, damage, and obsolescence; provided that Customer shall first promptly notify Countable Labs in writing when Customer discovers any defect or non-conformance, include in the notice clear details of the warranty claim, and pay for all shipping costs for any Equipment return and shipment of repaired/replacement Equipment. The foregoing repair, replacement, and/or refund constitute Customer’s sole and exclusive remedy, and Countable Labs’ sole and exclusive liability, for any breach of the warranties for the Equipment and Services.
16. Warranty Exclusions.
Unless otherwise required by law, the warranties provided by Countable Labs do not include:
a. Damages caused by normal wear and tear, spillage, improper installation, use, storage, maintenance, or handling, or any misuse, fault, negligence or neglect.
b. Damages caused by accident, disaster, or event of force majeure, which will include, but not be limited to, fire, flood, water, wind, and electrical surge.
c. Equipment which have been repaired, altered or modified in any way, or parts which have been replaced, by Customer or any other person or persons (other than those employed by Countable Labs) without the prior written consent of Countable Labs.
d. Any Equipment sold as refurbished, reconditioned or used.
e. Any Equipment designated by Countable Labs either (i) as being in contact with sample or reagent streams or (ii) as consumable items (e.g. reagents, chemicals, biologics), all of which are subject to normal wear and tear and should be replaced by Customer in the normal course.
f. Any Equipment sold through or installed by any third party not authorized by Countable Labs.
g. Any Equipment used in a country or associated region different from the country or associated region in which the Equipment were sold to Customer.
h. Any Equipment not used in accordance with this Agreement and Countable Labs's published documentation, equipment labels, and use limitations.
i. Any use of Equipment with inappropriate reagents or consumables;
j. Damages arise from any causes external to the Equipment such as, but not limited to, power failure or electrical power surges.
k. Any third party equipment or components, which may carry the warranty of the third party supplier or manufacturer, but for which Countable Labs provides no warranties or support but will make reasonable attempts to transfer any warranty that Countable Labs receives from the original third party supplier or manufacturer to Customer, to the extent the original third party supplier or manufacturer allows such transfer.
17. Additional Exclusions.
Unless otherwise stated in a written agreement between Countable Labs and Customer, under no circumstances will this Agreement include an extended warranty, any free Equipment or Services provided to Customer, any option for the future purchase of Equipment or Services by Customer, an automatic renewal of the Agreement, any performance guarantees, future performance obligations for providing Equipment, Service or parts, any rebate, any performance discount, or an interface or other allowance.
18. WARRANTY DISCLAIMERS.
THE WARRANTIES IDENTIFIED IN SECTION 15(A) THROUGH 15(C) ARE THE SOLE AND EXCLUSIVE WARRANTIES WITH RESPECT TO COUNTABLE LABS’S EQUIPMENT AND SERVICES EXPRESSLY DISCLAIMED, INCLUDING WITHOUT LIMITATION THOSE OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A SPECIFIC PURPOSE (WHETHER ARISING FROM STATUTE, OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING, OR USAGE OF TRADE). THESE WARRANTIES ARE NOT TRANSFERABLE FROM THE ORIGINAL PURCHASER TO A SUBSEQUENT OWNER. COUNTABLE LABS DOES NOT WARRANT THAT THE EQUIPMENT OR SERVICES WILL NOT INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY EITHER ALONE OR IN COMBINATION WITH OTHER EQUIPMENT OR IN THE OPERATION OF ANY PROCESS.
19. Compliance with Laws.
Customer is solely responsible for making sure the Equipment are suitable for its particular use, and Customer shall obtain all necessary approvals and permissions that may be needed for its use of the Equipment. Customer must comply with all applicable laws and regulations, including laws, regulations, orders, and policies of any jurisdiction where Equipment are provided or Services are performed, and laws and regulations related to anticorruption, import/export, labor, employment, anti-discrimination, anti-harassment, anti-slavery, human trafficking, freedom of association, health and safety, environmental protection, hazardous substances, pollution, waste management, recycling, and intellectual property; Customer must not take any action that would subject Countable Labs or its affiliates to liability or penalty under any applicable law or regulation, nor directly or indirectly make any offer, promise, authorization, or payment of anything of value to secure discretionary action or inaction, a decision of a government official or any other person, or any improper advantage in connection with the receipt of Equipment or Services, and Customer must not attempt to solicit any kickback or gratuity from Countable Labs employees.
20. Confidential Information.
All non-public, confidential, or proprietary information of Countable Labs, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Countable Labs to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" in connection with this Agreement, is Confidential Information of Countable Labs. Customer may use any Confidential Information disclosed by Countable Labs to it hereunder solely for the purpose of performing this Agreement, and may not disclose or copy or use for any other purposes, unless authorized in advance by Countable Labs in writing. Upon Countable Labs' request or upon termination of this Agreement, Customer shall promptly return to Countable Labs all Confidential Information (including all documents and other materials received from Countable Labs). Countable Labs shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is (a) in the public domain, (b) known to Customer without any confidentiality restrictions at the time of disclosure, or (c) rightfully obtained by Customer on a non-confidential basis from a third party. Customer may disclose Confidential Information if and only to the extent required to be disclosed in accordance with law, regulation or legal process, provided that Customer uses diligent reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and allows Countable Labs to participate in the proceeding.
21. Intellectual Property
a. All intellectual property rights embodied in or relating to the Equipment or Services, as between Customer and Countable Labs, are solely and exclusively owned by Countable Labs or its licensors. Nothing in this Agreement limits Countable Labs’ right to enforce its intellectual property rights.
b. Countable Labs will defend and indemnify Customer against infringement damages finally awarded in any legal action brought by an unaffiliated third party against Customer alleging infringement of any intellectual property rights owned by such third parties arising directly and solely from the Equipment, as manufactured and provided by Countable Labs to Customer (without modification), provided Countable Labs is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Countable Labs will not be responsible for any settlement it does not approve.
c. Customer shall immediately notify Countable Labs in writing of any intellectual property claim against Customer in relation to the Equipment. In the event that Countable Labs chooses to defend the claim, Customer shall (i) not admit any liability or take any action in connection with the claim, (ii) give Countable Labs sole control of the defense or settlement of any such claim, (iii) provide reasonable information and assistance in such defense.
d. If Countable Labs concludes that the Equipment infringe the intellectual property rights of a third party, Countable Labs may, in its sole discretion, (i) secure the right for Customer to continue use of the Equipment, (ii) replace the Equipment with similar Equipment, or (iii) require Customer to return the Equipment and provide Customer with a pro-rata refund of the purchase price, with a deduction in a reasonable amount for the Equipment’ use, damage, and obsolescence.
e. Countable Labs shall have no responsibility under Section 21 to the extent (i) the Equipment are supplied according to Customer’s design or instructions, (ii) the Equipment are modified by Customer or any third party not authorized by Countable Labs after delivery, (iii) the Equipment are combined with other equipment, devices, methods, systems, processes, or materials not furnished by Countable Labs, where the alleged infringement relates to such combination, (iv) the Equipment are not used in conformity with Countable Labs’s written instructions, (v) any portions or components of the Equipment were not created by Countable Labs, (vii) where Customer (or any end user) continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (viii) where the use of the Equipment is not strictly in accordance with this Agreement and all related documentation.
f. This Section 21 constitutes Customer’s sole and exclusive remedy, and Countable Labs’ sole and exclusive liability, regarding infringement or violation of third party intellectual property rights by or in connection with any Equipment and Services.
22. Indemnification.
Customer shall indemnify, defend with competent and experienced counsel and hold harmless Countable Labs, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) Customer’s negligence or willful misconduct, or that of Customer’s agents, employees, representatives or contractors; (ii) use of any Equipment in combination with equipment, software, consumables, or parts not supplied by Countable Labs where the Equipment itself would not cause such claim; (iii) use of any Equipment in an application or environment for which it was not designed or intended; or (v) modifications of a Equipment by anyone other than Countable Labs without prior written approval of Countable Labs.
23. Term and Termination.
a. This Agreement shall continue in effect until terminated earlier pursuant to this Agreement. Either party may terminate this Agreement if the other party materially breaches any material provision of this Agreement and fails to cure such breach within thirty (30) days.
b. Upon termination or expiration of this Agreement, any accrued rights of Countable Labs to payments, remedies for breach, as well as obligations of Customer under Quotations shall remain in effect, except that in the event of termination by Countable Labs, Countable Labs may in its discretion decide whether to honor, any installment of Equipment that have been ordered by Customer under Quotation but not shipped as of the date of the notice of such termination. Sections 1, 9, 10, 12, 13, 17 – 19, 20.a, and 21-36 shall survive any termination or expiration of this Agreement.
24. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COUNTABLE LABS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL OR SPECIAL DAMAGES, LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, NOR ANY OTHER CLAIM, EXPENSE, LIABILITY OR LOSS OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THE PURCHASE OF THE EQUIPMENT OR PERFORMANCE OF ANY SERVICES, WHETHER OR NOT COUNTABLE LABS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COUNTABLE LABS SHALL NOT BE RESPONSIBLE FOR ANY LOSSES, DAMAGES, OR OPERATIONAL DISRUPTIONS CAUSED BY THE EQUIPMENT. COUNTABLE
LABS SHALL NOT BE LIABLE FOR ANY LIABILITIES OR AMOUNT IN EXCESS OF THE PURCHASE PRICE OF THE SPECIFIC EQUIPMENT OR SERVICES PURCHASED BY CUSTOMER THAT GAVE RISE TO THE LIABILITIES.
25. Governing Law, Jurisdiction and Venue.
This Agreement shall be governed by the laws of the State of Delaware and the United States of America, without regard to conflicts of law principles, and any action or proceeding arising from or relating to this Agreement must be brought in court in the State of Delaware. The parties expressly agree that the United Nations Convention on Contracts for the International Purchase of Goods shall not apply to this Agreement. Customer irrevocably submits and consents to the exclusive jurisdiction of the courts in the State of Delaware, and hereby agrees that such courts shall be the exclusive proper forum for the determination of any action, proceeding, or claim arising from or relating to this Agreement. Any legal action must be brought within one year after the claim or cause of action occurs.
26. Assignment.
Customer may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Countable Labs. Any assignment or transfer in violation of the foregoing shall be null and void. Countable Labs may assign this Agreement, in whole or in part, to any of its affiliates or to a successor to all or substantially all of its assets or business to which this Agreement relates, whether by merger, Purchase of stock, Purchase of assets or other similar transaction. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their permitted successors, legal representatives and assigns.
27. Relationship of the Parties.
The relationship between Customer and Countable Labs is that of Customer and seller, as independent contractors. Nothing in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between Countable Labs and Customer. Neither Customer nor Countable Labs has the authority to contract for or bind the other party in any manner whatsoever.
28. No Third-Party Beneficiaries.
This Agreement is for the sole benefit of Customer and Countable Labs. Nothing in this Agreement, whether express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever.
29. Force Majeure.
Countable Labs is not liable for any delay or failure of performance, including but not limited to the failure to deliver or install the Equipment, where the delay or failure arises from any cause beyond Countable Labs' reasonable control. Such causes include, but are not limited to, flood, unusually severe weather, earthquake or other act of nature, power loss, strike, boycott, other labor disputes, embargo, governmental regulation, or an inability or delay in obtaining materials. In the event of such delay or failure of performance, Countable Labs shall have such additional time within which to perform its obligations as may be reasonably necessary under the circumstances.
30. Export Control.
The Equipment may be subject to, and Customer shall compliance with, all applicable export control laws and regulations of the United States and other jurisdictions. Customer may not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any Equipment to any destination, entity, or person prohibited or restricted by any applicable laws or regulations relating to the export, re-export, and import of any Equipment.
31. Repurchase and Anti-Corruption Compliance.
If Countable Labs believes that Customer is purchasing Equipment other than for its own account without Countable Labs’ consent, Countable Labs reserves the right to cancel any PO and withhold delivery of any Equipment. To the extent that Countable Labs does consent to Customer’s rePurchase of the Equipment, Customer certifies that it is familiar with and understands the requirements of anti-corruption laws and international anti-corruption standards, including but not limited to the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act 2010, and all national anti-corruption laws enacted in any country in which it operates (collectively, the "Anti-Corruption Laws"). Customer shall not violate or permit anyone acting on its behalf to violate the Anti-Corruption Laws. Specifically, Customer has not made and will not make, promise to make, offer, or authorize, directly or indirectly, any payment, or provide or offer anything of value, directly or indirectly, to any public officials, political parties, party officials, candidates for public or political party office, public international organizations and their employees, agents and officials, or employees or officials of any purchasing entities (whether publicly owned or private) of Countable Labs’ equipment/services, in order to (1) improperly influence the acts of such public officials, political parties, party officials, candidates, public international organizations and their employees, agents and officials, or employees or officials of purchasing entities, (2) improperly induce them to use their influence with a government to obtain or retain business, or (3) gain an improper advantage, in connection with any business venture or contract.
32. Remedies; No Waiver.
The remedies herein shall be cumulative and in addition to any other or further remedies provided in law or equity. Customer consents to injunctive and other equitable interim or permanent relief as may be requested by Countable Labs and awarded by a court. No waiver or breach of any provision of this Agreement shall constitute a waiver of any other provision or breach.
33. Notices.
All legal notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Invoice and in the case of Countable Labs with copy to its corporate headquarters. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
34. Severability.
In the event that a court of competent jurisdiction finds any term or clause in this Agreement to be invalid, unenforceable, or illegal, the same will not have an impact on other terms or clauses in the Agreement or the entire Agreement. However, such a term or clause may be revised to the extent required according to the opinion of the court to render the Agreement enforceable or valid, and the rights and responsibilities of the parties shall be interpreted and enforced accordingly, so as to preserve their agreement and intent to the fullest possible extent.
35. Publicity.
Countable Labs may identify Customer as a Customer and user of its products and may use Customer’s name, logo, and other trademarks in Countable Labs’ customer list, press releases, blog posts, advertisements, and website. Countable Labs agrees to comply with any written guidelines that Customer may deliver to Countable Labs regarding the use of its trademarks. Otherwise, neither Party may use the name, logo, or other trademarks of the other Party for any purpose without the other Party’s prior written approval.
36. Non-Disparagement.
Customer shall not make, cause to be made, publish, ratify or endorse any remarks, statements or comments about Countable Labs or its products or personnel, or otherwise engage in any behavior, that would be considered, in Countable Labs’ reasonable discretion, to be disparaging, derogatory or detrimental to Countable Labs name or business reputation or that of its personnel.
37. Entire Agreement.
This Agreement sets forth the entire agreement between Customer and Countable Labs with respect to the subject matter hereof and supersedes any and all prior and contemporaneous writings, communications, agreements, and understandings relating to the same subject matter. Countable Labs reserves the right to change these terms at any time. The version date for these terms may be found at the footer of this page.