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 Customer’s purchase of, and Countable Labs’ sales of, the Products, Services, and Support (each, as defined below).
b. Definitions
i. “Consumables" means any reagents, chemicals, biologics, consumables, kits, and labware, or any individual components of the foregoing, intended by Countable Labs for use with any Equipment.
ii. “Documentation” means Countable Labs’ Instructions for Use, product package insert, technical guidance, and similar documentation, for the Products as made available to Customer. Documentation may be provided with the Product at the time of shipment or provided electronically from Countable Labs.
iii. “Equipment” means any equipment branded or sold by Countable Labs, as listed in Countable Labs’ then-current product catalogue applicable to the Customer, “Product” means each item, including any Equipment, Software and/or Consumable, listed in the applicable Quotation or, in the event a Quotation is not issued, identified in any purchase request or other written order (“PO”) submitted by Customer and accepted by Countable Labs.
iv. “Services” means the services as described in the applicable Quotation or, in the event a Quotation is not issued, identified in any PO submitted by Customer and accepted by Countable Labs.
v. “Support” means support or services as described in Countable Labs’ Service and Support Policy, which may be updated from time to time at Countable Labs’ sole discretion, for any purpose deemed appropriate by Countable Labs.
vi.“Software” means any software (in object code form only) as incorporated into any Equipment or made available by Countable Labs for download or access by the Customer, in each case, in conjunction with the Customer’s purchase or use of any Equipment.
c. Other Terms.
i. Separate Contract. If a written contract signed by both parties exists and is referenced in the applicable Quotation to govern the sale of the Products and/or performance of the Services specified on such Quotation, then 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 Product 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) Acceptance and Effect. This Agreement becomes effective upon the earliest of Customer’s receipt of confirmation that Countable Labs has accepted the applicable PO submitted by Customer, or Customer’ acceptance of the applicable Quotation. By submitting a PO, accepting a Quotation, accepting delivery of any Product, or allowing commencement of Services, Customer agrees to be bound by this Agreement, regardless of whether Customer signs or otherwise acknowledges this Agreement.
d) 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 Product 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 Products shall be packed in Countable Labs' standard shipment packaging, marked, and shipped in accordance with Countable Labs’ applicable specifications (or if no specifications are provided, in accordance with reasonable commercial practices) using a carrier of Countable Labs’ choice. Product may be shipped, depending on lead time and availability, in installments. Each installment shall be invoiced and considered a separate sale. Unless otherwise agreed, Customer shall clear any imported Product 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 and/or damage of the Product will pass to Customer when Countable Labs loads such Product onto the commercial carrier at its facility.
5. Delivery.
Countable Labs will make commercially reasonable efforts to deliver the Products 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 shall not be responsible for any loss or damage of any kind or nature whatsoever caused by any delay in delivery irrespective of the cause of such delay, and such failure does not permit the Customer to reject or cancel a PO or terminate this Agreement.
If Countable Labs delivers fewer Products than specified in the PO, Customer shall notify Countable Labs of the discrepancy. Countable Labs will then deliver the confirmed missing Products. If Countable Labs delivers excess Products, Customer shall return the over shipment to Countable Labs or notify Countable Labs of their intent to keep it. Customer shall pay for the quantity of Products 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 Product shall be deemed to occur seven (7) days after delivery. No returns of Product will be accepted without prior written authorization from Countable Labs. Customer may only return any Product that is damaged or defective on delivery, provided that Customer submit a return claim within seven (7) days of delivery of such Product 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 Product using reasonable care or as otherwise indicated on the label or applicable Documentation made available by Countable Labs. Customer must follow Countable Labs' return instructions, including use of the specified courier and compliance with applicable temperature and handling guidelines. Products must be returned in their original condition. Countable Labs reserves the right to apply a restocking fee for returns of conforming Product.
8. Service & Support.
a. Services. If the Services include the installation of any Equipment at Customer’s facility, Customer shall be solely responsible for, at Customer’s cost, preparing the installation site and making it available for installation in accordance with Countable Labs’ site requirements. Customer agrees to provide full access to its premises for the purpose of installation or repair, and guarantees that all Product, instruments, and work areas that come into contact with biohazardous or hazardous materials are decontaminated prior to service intervention or the return of Product to Countable Labs for service.
b. Support. If Customer has purchased the Support as described in the applicable Quotation or, in the event a Quotation is not issued, as identified in any PO submitted by Customer and accepted by Countable Labs, 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 Support pursuant to the Service and Support Policy. Countable Labs will use reasonable efforts to give Customer prior written notice of any material changes to the Service and Support Policy that would adversely affect Customer’s use of the Product.
c. Extended Warranty and Service. Upon payment by Customer of the amount stated in an applicable Quotation for any Equipment for the purchase of an extended warranty/services, then the applicable Warranty Period set forth in Section 15.a of this Agreement shall be extended for such extended warranty period as is set forth in such Quotation.
9. Prices and Payment.
a. All prices for the Product and/or Services are stated in the applicable Quotation and are exclusive of all taxes, withholdings, excises, freight, and insurance. Quotations are only valid for thirty (30) days from the quotation date unless otherwise stated in the Quotation. 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’ 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 Accessories. Consumables and accessories are not included in the purchase price for the Equipment and must be purchased separately. Only Countable Labs–approved Consumables and accessories may be used with the Equipment. Use of unapproved third-party products voids support eligibility. Customer shall use the Consumables only with the Equipment purchased by Customer, and only for single use and may not be reused (unless expressly stated otherwise on the packaging of the Consumables).
b. Product Modifications. Any modifications, add-ons, interfaces, or non-standard components to any Products (collectively, “Product Modifications”) required by Customer in connection with the use of the Product shall be at Customer’s sole expense. Countable Labs shall have no obligation to support or service any Product that has been modified or used in conjunction with any Product Modifications or other components not made or expressly authorized by Countable Labs. In the event that any Product Modification was developed by, for, or on behalf of Customer, except to the extent prohibited by applicable laws, Customer hereby grants to Countable Labs a non-exclusive, worldwide, fully sublicensable, fully paid-up, royalty-free, irrevocable, perpetual license to such Product Modification.
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 Products 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’ 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 Products 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 Products (excluding Software, which is only licensed, never sold) delivered under this Agreement remains with Countable Labs until the Customer has paid all amounts due to Countable Labs in connection with this Agreement. Until such time, Customer shall hold the Product as bailee for Countable Labs and shall keep the Product separate from other goods and clearly identified as the property of Countable Labs. The Customer shall not sell, pledge, charge, encumber or otherwise dispose of, or allow any lien to be attached to, the Product 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 Product 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 Product 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 Product under the terms of this Agreement, together with any other remedies available under the law or in equity.
12. Limited Licenses.
a. Product License. Subject to the terms of this Agreement and any applicable license provided by Countable Labs specific to a particular Product (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 Product purchased by Customer, to use the quantity of the Product(s) purchased by Customer solely for Customer’s research use purposes and in accordance with the applicable Documentation and Countable Labs’ written instructions. Customer acknowledges and agrees that, except as expressly stated in this Agreement or in a product-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 Product in combination with any Product not supplied, licensed, or expressly recommended by Countable Labs for such use. This limited license permits Customer to use the Product 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 Product provided hereunder ceases, unless earlier terminated as provided in this Agreement.
b. 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 any Product to any third party. The development of commercial products, or the sale of products intended for use, with any Product, 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 Product. The Product 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.
c. Software. Subject to Customer’s compliance with the terms and conditions hereof, 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 Product purchased by Customer from Countable Labs or its authorized distributor, and only in accordance with the applicable, then-current Documentation. 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 Product on which any Software is incorporated shall equally apply to such Software.
d. Third Party Materials. The Product 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.
e. Termination. Customer is responsible and liable for all uses of the Products 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.
Product 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. 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 Product in any diagnostic or commercial application. The Product is 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 Product 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 Product. Customer is not licensed to, and agrees not to: (a) resell, transfer, distribute, or otherwise make available any Product 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 any Product from the country or region in which it was originally purchased; (c) disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement any Product provided hereunder without prior written consent of Countable Labs, except that Customer may modify certain Products that are assays (as explicitly permitted so as set forth in the Quotation) pursuant to the applicable Documentation; (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 Product; (e) sell, pledge, or otherwise dispose of or encumber, or allow any lien to be attached to, the Product; or (f) permit any third party to do any of the foregoing.
15. Warranty.
a. 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 following warranties to the Customer:
(i) Equipment sold with warranty as specified on the applicable Quotation is 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.
(ii) Products that are non-consumable spare parts for Equipment purchased by Customer is 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.
b. Customer will promptly notify Countable Labs of any change in location to installed Product during the applicable Warranty Period.
c. During the applicable Warranty Period only, for any Product not meeting the applicable warranties set forth above under Section 15.a above, Countable Labs will, in its sole discretion, either (i) repair or replace such Product and/or provide additional parts as reasonably necessary to comply with such warranty obligations, or (ii) require return of the such Product and issue a pro-rata refund of the purchase price, with a deduction in a reasonable amount for the Product’s use, damage, and obsolescence; provided that Customer shall first promptly notify Countable Labs in writing when Customer discovers any defect or non-conformance (“Defect Notice”), include in the Defect Notice clear details of the warranty claim, and pay for all shipping costs for any Product return and shipment of repaired/replacement Product. 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 Product and Services.
d. After receipt of a Defect Notice and applicable Product subject to such Defect Notice, if the applicable Product is no longer within the applicable Warranty Period, or if after inspection and diagnosis of such Product, Countable Labs determines that the defects or non-conformance are not covered by the warranties set forth above under Section 15.a above, Countable Labs may, at its sole discretion, refuse to perform any repair, maintenance, or other services. If Countable Labs elects to provide an estimate for such services, any estimate provided is non-binding, for informational purposes only, and may be adjusted based on the actual work performed. Customer must pay all inspection and diagnostic costs, as well as all shipping costs for any Product return and shipment of repaired/replacement Product, regardless of whether Customer proceeds with the repair. Countable Labs has no other obligations to Customer with respect to the Product subject to such Defect Notice, unless the parties mutually enter into a separate agreement regarding such services, in which event Customer shall pay Countable Labs all costs associated with any Product return and shipment of repaired/replacement Product.
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. Product 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 Product (i) designated by Countable Labs as being in contact with sample or reagent streams or (ii) that is Consumable, all of which are subject to normal wear and tear and should be replaced by Customer in the normal course.
e. Any Product sold through or installed by any third party not authorized by Countable Labs.
f. Any Product used in a country or associated region different from the country or associated region in which the Product were sold to Customer.
g. Any Product not used in accordance with this Agreement, the applicable Documentation, product labels, and use limitations.
h. Any use of Product with inappropriate Consumables;
i. Damages arise from any causes external to the Product such as, but not limited to, power failure or electrical power surges.
j. Any third party product 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 Product or Services provided to Customer, any option for the future purchase of Product or Services by Customer, an automatic renewal of the Agreement, any performance guarantees, future performance obligations for providing Product, Service or parts, any rebate, any performance discount, or an interface or other allowance.
18. WARRANTY DISCLAIMERS.
THE WARRANTIES IDENTIFIED IN SECTION 15(A) AND 15(B) ARE THE SOLE AND EXCLUSIVE WARRANTIES WITH RESPECT TO COUNTABLE LABS’ PRODUCTS AND SERVICES AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. COUNTABLE LABS (INCLUDING ITS LICENSORS AND SUPPLIERS) EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, 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 PRODUCTS OR SERVICES WILL NOT INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY EITHER ALONE OR IN COMBINATION WITH OTHER PRODUCT OR IN THE OPERATION OF ANY PROCESS.
19. Compliance with Laws.
Customer is solely responsible for making sure the Product are suitable for its particular use, and Customer shall obtain all necessary approvals and permissions that may be needed for its use of the Product. Customer must comply with all applicable laws and regulations, including laws, regulations, orders, and policies of any jurisdiction where Product 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 Product 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 Products or Services, as between Customer and Countable Labs, are solely and exclusively owned by Countable Labs or its licensors. Countable Labs reserves all rights not expressly granted to Customer under this Agreement. 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 any Product. 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 or suspects that any Product infringes or likely infringes 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 Product, (ii) replace the Product with a similar product, or (iii) require Customer to return the Product and provide Customer with a pro-rata refund of the purchase price, with a deduction in a reasonable amount for the Product’s use, damage, and obsolescence.
e. Countable Labs shall have no responsibility under Section 21 to the extent (i) the Product is supplied according to Customer’s design or instructions, (ii) the Product is modified by Customer or any third party not authorized by Countable Labs after delivery, (iii) the Product is combined with other products, devices, methods, systems, processes, or materials not furnished by Countable Labs, where the alleged infringement relates to such combination, (iv) the Product is not used in conformity with Countable Labs’ written instructions, (v) any portions or components of the Product was 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 Product 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 Product 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 Product in combination with any product, software, consumables, or parts not supplied by Countable Labs where the Product itself would not cause such claim; (iii) use of any Product in an application or environment for which it was not designed or intended; or (v) modifications of a Product 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 Product that have been ordered by Customer under Quotation but not shipped as of the date of the notice of such termination. Sections 1, 9 through 11, 13, 14, 16 – 20, 21(a) and (f), and 22-27 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 PRODUCT 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 PRODUCT. COUNTABLE LABS SHALL NOT BE LIABLE FOR ANY LIABILITIES OR AMOUNT IN EXCESS OF THE PURCHASE PRICE OF THE SPECIFIC PRODUCT 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 Sale 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. U.S. Government Matters.
The Products and Documentation provided by Countable Labs under this Agreement are "commercial items," as the term is defined at 48 C.F.R. §2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the commercial computer software and commercial computer software documentation are licensed to United States Government end users (i) only as commercial items and (ii) with only those rights expressly granted pursuant to the terms of this Agreement. Any other use or exploitation will be prohibited except to the extent expressly permitted by the terms of this Agreement. If Customer is submitting a PO or accepting a Quotation in support of a contract with the U.S. Government, Customer shall explicitly disclose so to Countable Labs. Customer agrees that only those legally mandatory flow-down clauses under the U.S. Federal Acquisition Regulations (“FAR”) which Customer expressly included in such PO or Quotation, as well as this Agreement, shall apply. All other terms and conditions are expressly rejected. In the event of a conflict between the FAR provisions and this Agreement, this Agreement shall take precedence to the maximum extent permitted by applicable law.
27. Miscellaneous
a. 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, sale of stock, sale 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.
b. Relationship of the Parties.
The relationship between Customer and Countable Labs is that of buyer 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.
c. 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.
d. 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 Product, 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.
e. Export Control.
Customer understands that the Products are subject to U.S. and other applicable sanctions and export control laws and regulations (“Trade Controls”), and that the sale or distribution of the Products may constitute a regulated export, re-export or transfer of the Products and, as such, must be conducted in accordance with such laws and regulations. Customer agrees to comply with all Trade Controls. Customer will not sell, transfer, export or re-export Products without prior authorization from Countable Labs, and any necessary prior government approval. Customer certifies that all Products, services and technology supplied by Countable Labs will not be sold, re-transferred, re-exported or otherwise used in activities involving the development, production, use or stockpiling of nuclear activities of any kind, chemical or biological weapons or missiles, unmanned aerial vehicles or microprocessors for military use, or systems capable of delivery of such weapons, or in any related facilities. Customer represents and warrants that Customer is not (i) subject to debarment, (ii) the subject of any list-based designations under U.S. BIS Entity List, MEU List, Unverified List, Denied Persons List, OFAC SDN List, or other applicable export controls laws or regulations, or (iii) engaged in transactions, dealings or activities that might reasonably be expected to cause the Customer to become subject to the foregoing (i) or (ii).
f. Repurchase and Anti-Corruption Compliance.
If Countable Labs believes that Customer is purchasing Product other than for its own account without Countable Labs’ consent, Countable Labs reserves the right to cancel any PO and withhold delivery of any Product. To the extent that Countable Labs does consent to Customer’s resale of the Product, 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’ Product/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.
g. 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.
h. 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.
i. 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.
j. 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.
k. 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.
l. 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.