Terms of Purchase

GENERAL TERMS OF PURCHASE

1. Area of Application.

1.1. All orders (each, and “Order”) submitted by you, the “Customer”, and accepted by Eurofins Transplant Genomics, LLC (“ETG”) shall be governed by these General Terms of Purchase (“Terms and Conditions”). A contract with these Terms and Conditions comes into being when an Order that has been placed with ETG is accepted by ETG. An Order placed with ETG is deemed to be accepted by ETG when (i) ETG proceeds to fulfill the order, without need for any written confirmation from ETG; or (ii) ETG accepts the order in writing. By ordering any of ETG’s goods or services, Customer accepts that the Order is bound by these Terms and Conditions unless the parties have signed a separate agreement governing ETG’s goods or services, in which case the terms of the signed agreement shall govern. Customer represents and warrants that all Orders sent by Customer to ETG for goods and/or services have been submitted only from Customer authorized individuals. The goods and services described in ETG’s catalogue, website or other sales materials are subject to changes or may be suspended at any time and from time to time.

1.2. ETG is hereby authorized to subcontract any or all goods services requested by Customer to any of its Affiliates. Accordingly, these Terms and Conditions shall apply to any services performed pursuant to such Order and such Affiliate shall enjoy the same rights, and be subject to the same obligations hereunder as ETG. In no event shall ETG be liable for any obligations of an Affiliate under these Terms and Conditions, and Customer shall look exclusively to such Affiliate in relation to any rights or remedies it may have under these Terms and Conditions with respect to such Order or subcontracted services.

1.3. These Terms and Conditions are valid for all agreements between the parties and any deviations must be agreed in writing and specifically between the parties, other provisions of these Terms and Conditions will in that case remain in force between the parties. Unless specifically accepted in writing and signed by the President of ETG, any terms proposed or submitted by Customer at any time(including, but not limited to, terms or provisions in the Customer’s purchase order, instructions, or other documents) which differ from these Terms and Conditions are rejected as a material alteration of these Terms and Conditions and shall be of no force or effect. Furthermore, special terms or conditions of prior orders, including special pricing, will not automatically apply to subsequent orders.

2. Compensation. Customer shall indicate on ETG’s Account Setup Form as to whether Customer’s account is Direct Customer Bill or Third-Party Bill. If Customer selects Third-Party Bill, then the billing arrangement shall be one in which ETG bills third parties as set forth in Section 2.1 below. If Customer selects Direct Customer Bill, then the billing arrangement shall be one in which ETG bills Customer directly as set forth in Section 2.2 below.

2.1. Third Party Bill. Unless prohibited by applicable law, contract or otherwise indicated on the service requisition, ETG will bill and collect from government health care programs (including Medicare, Medicaid, and TRICARE) and from private third-party payors for all goods or services under these Terms and Conditions. Customer will provide ETG with all information necessary, including patient billing demographic information and ICD-10 coding, for ETG to bill and collect from government health care programs and private third-party payors. If Customer fails to provide such information to ETG, then ETG will bill Customer, and Customer shall pay ETG, for such services as set forth in Section 2.2 below.

2.2. Direct Customer Bill.

2.2.1. Direct Customer Bill Pricing. Customer shall pay ETG for goods and services at ETG’s list price in effect at the time of purchase unless ETG has signed an agreement stating a different price. All ETG pricing is subject to change.

2.2.2. Payment Terms. Unless specifically agreed otherwise by ETG in these Terms and Conditions, payment of all invoices is due strictly within thirty (30) days of the invoice date. Any dispute about invoices must be raised within thirty (30) days of the invoice date. If full payment is not made within thirty (30) days of the invoice date, then Customer shall, in addition to the delinquent amount, pay to ETG a late payment fee of five percent (5%) of the delinquent amount. Customer agrees that such late payment fee is a fair and reasonable sum calculated to defer administrative expenses incurred by ETG as a result of such late payment. In addition, and without limiting ETG’s other rights and remedies, in the event any payment is not paid by Customer within thirty (30) days of the date of invoice, then interest shall accrue from the first date of delinquency until payment in full is received, at the rate of one and one-half percent (1.5%) per month. Nothing herein shall be construed as extending the due date of payments to be made by Customer under these Terms and Conditions. Customer agrees to pay all court costs, attorney fees, and other expenses incurred by ETG in the effort to collect unpaid invoices. In addition to the remedies set forth above and any other remedies available at law, ETG reserves the right to defer rendering further goods and/or services until full payment is received on past-due invoices, and Customer shall be solely responsible for the consequences of such deferral.

2.2.3. Payment Method. The invoice settlement method is check, bank transfer, or direct debit. Any other method of payment must receive prior agreement from ETG. Each party shall provide to the other party its bank account detail, as needed.

3. Duties of Customer in Delivering Customer Samples.

3.1. Unless otherwise specified in a signed agreement between ETG and Customer, shipping costs, associated insurance costs, risk of loss, local custom duties and other governmental charges, as applicable, and all other costs for shipment and storage of Customer samples shipped to ETG for performance of services shall be the responsibility of Customer.

3.2. Customer is responsible for the proper delivery of samples sent to ETG. ETG accepts no responsibility for any loss or damage, that may occur to any Customer samples in transit or to any facility or site where logistics services are being delivered. Customer shall at all times be liable for the security, packaging, and insurance of Customer samples from its dispatch until it is delivered to ETG’s laboratory for services.

3.3. Unless otherwise specified in a signed agreement between ETG and Customer, shipping costs, associated insurance costs, risk of loss, local custom duties and other governmental charges, as applicable, and all other costs for shipment and storage of goods purchased by Customer shall be the responsibility of Customer (FOB Origin). The risk of loss of goods transfers to Customer upon ETG’s delivery of the goods to the carrier, and Customer may insure goods at its discretion and expense.

4. Delivery Dates, Turnaround Time, Inspection.

4.1. All delivery dates and turnaround times provided by ETG to Customer are best estimates and do not constitute a commitment by ETG. Nevertheless, ETG shall make commercially reasonable efforts to meet the agreed upon delivery deadlines.

4.2. Promptly after services have been performed, the results of the services (“Results”) shall be sent to Customer in the form agreed upon between the parties.

4.3. Customer shall inspect all goods within a reasonable time following their receipt (but in no event more than seven (7) days after receipt) and provide written notice to ETG of any failure of the goods to comply with these Terms and Conditions or the Order, including overages or shortages. Failure to provide notice within the required time period shall be deemed acceptance by Customer of the goods. Acceptance by Customer of the Goods does not affect Customer’s warranty rights.

5. Specimens That Cannot Be Tested. A specimen cannot be tested if it is not the appropriate specimen for services, including but not limited to the following: (i) the specimen does not meet the specimen collection requirements specified in ETG’s test menu; (ii) the specimen quantity is not sufficient; (iii) for time sensitive specimens, the specimen arrived too late to test; or (iv) the specimen integrity is questionable. If ETG receives a specimen that cannot be tested, ETG will notify Customer with a report of the reason for not performing the requested Services. If Customer instructs ETG to perform the Services with a disclaimer, then Customer shall pay ETG for the services performed on that specimen.
6. Limited Warranties and Responsibilities.

6.1. Services Limited Warranty. ETG represents and warrants that it shall perform the Services using personnel of required skill, experience and qualifications, and in a professional and workmanlike manner in accordance with commercially reasonable industry standards for similar services.

6.2. Goods Limited Warranty. ETG represents and warrants that the goods purchases, if properly selected and stored, will conform to their published specifications as in effect at the time of manufacture or, if agreed in an Order, the specifications set forth in such Order, for (the warranty period provided in the documentation applicable to such goods). No claim shall be allowed by any party other than the Customer.

6.3. Disclaimer of Warranty. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, ETG MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH ANY GOODS OR SERVICES AND, TO THE FULLEST EXTENT PERMITTED BY LAW, ETG SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, OR EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF NON-INFRINGEMENT, SUITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

7. Indemnification. Customer agrees to indemnify, defend, and hold harmless ETG and its Affiliates and their respective officers, directors, employees, and agents (collectively “Indemnitees”) from and against any and all claims, demands, suits, or actions (“Claims”) brought by a third party against Indemnitees and pay all losses, damages, liabilities, deficiencies, debts, charges, actions, judgments, interest, awards, penalties, fines, costs, or expenses (including reasonable attorneys’ fees, court costs, and any amount paid in settlement) (“Losses”) resulting from any Claims to the extent arising from (i) Customer’s negligence or willful misconduct; or (ii) Customer’s breach of these Terms and Conditions.
8. Liability.

8.1. Limitation of Liability. IN NO EVENT SHALL ETG BE RESPONSIBLE FOR ANY DIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, NON-COMPENSATORY, OR SPECIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS RO REVENUE, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF INFORMATION, OR FOR THE PROCUREMENT OF SUBSTITUTE SERVICES) CUSTOMER OR OF ANY THIRD PARTY, EVENT IF IT HAS BEEN ADVISED OF THE POTENTIAL FOR SUCH DAMAGES AND WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW OR OTHERWISE. IN NO EVENT SHALL ETG BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE LESSER OF (I) THE AGGREGATE AMOUNT OF (a) FEES (EXCLUDING ANY PASS-THROUGH COSTS) PAID FOR SERVICES UNDER THE ORDER GIVING RISE TO THE CLAIM; OR (b) THE PURCHASE PRICE OF GOODS GIVING RISE TO THE APPLICABLE CLAIM;; OR (II) TWO HUNDRED FIFTY THOUSAND DOLLARS USD ($250,000). FURTHERMORE, NO ACTION ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS MAY BE BROUGHT BY CUSTOMER MORE THAN TWELVE (12) MONTHS AFTER THE ACCRUAL OF THE CAUSE OF ACTION.

8.2. Obligation to Pay. The foregoing limitation of liability shall not be interpreted to operate to reduce or limit the obligation or liability of Customer to pay for goods delivered and/or services rendered and costs incurred as provided in these Terms and Conditions and the applicable Order.

8.3. No Joint and Several Liability. In no event shall ETG or any of its Affiliates be jointly and severally liable with one another in any respect, and ETG and its Affiliates shall not be deemed to have any obligation with respect to one another’s performance or non-performance of any obligation hereunder. For purposes of the foregoing, “Affiliate” shall mean any corporation or other business entity directly or indirectly controlled by, controlling, or under common control with ETG. The term “control” (including, with correlative meaning, the terms “controlled by,” “controlling,” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of ETG, whether through the ownership of voting securities, by contract or otherwise, or such other relationship as, in fact, constitutes actual control.

9. Warranty Claims.

9.1. Exclusive Remedy for Deficient Services. In the event that any services are improperly or inadequately performed by ETG, Customer’s sole remedy, and ETG’s sole obligation, with respect to such deficient services shall be for ETG, at its discretion either: (i) re-perform such improper or deficient services, at no additional charge to Customer; or (ii) refund of all amounts Customer paid to ETG for such improperly or inadequately performed services.

9.2. Exclusive Remedy for Deficient Goods. In the event that any goods do not comply with their applicable warranty during the warranty period as set forth in these Terms and Conditions and/or the specifications of the goods, Customer shall provide prompt written notice thereof to Viracor (and in any event, within the warranty period) and return the defective goods to Viracor at Customer’s risk and expense. If Viracor confirms that the goods do not conform to their applicable warranty, Customer’s sole remedy, and Viracor’s sole obligation, with respect to such goods shall be for Viracor, at its discretion either: (i) repair or replace the applicable good at no additional charge to Customer; or (ii) refund the purchase price of the applicable good.

10. Term, Termination, and Amendment. These Terms and Conditions shall commence on the date an Order is accepted by ETG and shall continue until the Order is completed. ETG or the Customer may terminate an Order upon thirty (30) days prior written notice to the other party for any reason. If Customer exercises this early termination right, the Customer agrees that ETG shall be paid for all portions of the Order actually performed up to the date of termination. No addition or modification of these Terms and Conditions shall be effective unless made in writing and signed by authorized representatives of both parties.
11. Force Majeure. Except as otherwise provided in these Terms and Conditions, Force Majeure Events will excuse the performance by a Party of its obligations under these Terms and conditions for a period equal to any such prevention, delay, or stoppage. “Force Majeure Events” are any prevention, delay, or stoppage due to strikes, lockouts, labor disputes, inability to obtain labor or materials or reasonable substitutes therefore, governmental restrictions, governmental regulations, governmental controls, enemy or hostile governmental action, civil commotion, fire or other casualty, natural disaster, public health emergency, utility or telecommunication disruption, or other causes beyond the reasonable control of the Party obligated to perform. Nothing in this Section shall excuse or suspend the obligation to make any payment due hereunder in the manner and at the time provided herein.
12. Confidentiality.

12.1. Confidential Information. In connection with these Terms and Conditions, each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including but not limited to information consisting of or relating to the Disclosing Party’s products, research activities, technology, know-how, business operations, plans, strategies, vendors, customers, pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential.”

12.2. Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records; (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with these Terms and Conditions; (ii) was or becomes generally known by the public other than by the Receiving Party’s or any of its representatives’ noncompliance with these Terms and Conditions; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (iv) that it was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

12.3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall during the Term and for a period of seven (7) years from the date of purchase of the goods and/or services:

12.3.1. Not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with these Terms and Conditions.

12.3.2. Except as may be permitted by and subject to its compliance with Section 12.4, not disclose or permit access to Confidential Information other than to its representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with these Terms and Conditions; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 12; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 12.

12.3.3. Safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the same degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care.

12.3.4. Ensure its representatives’ compliance with, and be responsible and liable for any of its representatives’ noncompliance with, the terms of this Section 12.

12.4. Compelled Disclosures. If the Receiving Party or any of its representatives are compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party shall: (i) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy, or waive its rights under this Section; and (ii) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, upon the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information shall be afforded confidential treatment.

12.5. Return or Destruction of Confidential Information. Notwithstanding anything to the contrary stated in these Terms and Conditions, the Receiving Party may retain one (1) copy of the Confidential Information solely for legal and compliance purposes and any electronic backup copies maintained in the ordinary course of business, provided that the Receiving Party adheres to the confidentiality and non-use obligations set forth in these Terms and Conditions with regard to the Confidential Information contained therein.

12.6. Injunctive Relief. The Parties acknowledge that monetary damages may not be a sufficient remedy for any breach of this Section 12, and that actual damages may be difficult to ascertain, and it is therefore agreed that the Disclosing Party, in addition to, and without limiting, any other remedy or right it may have, shall have the right to seek equitable relief, including without limitation injunctive relief, issued by a court of competent jurisdiction, and the Receiving Party hereby agrees to waive any requirement for the security or posting of any bond. Any and all rights and remedies of the Disclosing Party under these Terms and Conditions, at law or in equity, shall be cumulative and shall not be deemed inconsistent with each other, and any two or more of all such rights and remedies may be exercised at the same time insofar as permitted by law.

13. Intellectual Property. These Terms and Conditions shall have no force or effect on either Party’s Pre-existing Intellectual Property, and neither Party shall have any claims to or rights in any Pre-existing Intellectual Property of the other Party. Each Party shall retain all rights, title, and interest in and to any and all Pre-existing Intellectual Property of such Party. “Pre-existing Intellectual Property” means intellectual property existing as of the Effective Date or developed or obtained by a Party outside of these Terms and Conditions.
14. Compliance with Laws. During the Term of this Terms and Conditions, both parties shall materially comply with all national, federal, state or local law, rule, ordinance or regulation applicable to their activities in connection with these Terms and Conditions, including but not limited to: (i) Clinical Laboratory Improvement Amendments; (ii) federal and state fraud and abuse and self-referral laws; (iii) laws pertaining to confidential patient information, laboratory services billing, marketing and sales, and specimen packaging and transport; (iv) standards for laboratories participating in federally funded healthcare programs; and (v) the Health Insurance Portability and Accountability Act of 1996 and the Health Information Technology for Economic and Clinical Health Act of 2009, as each is amended (collectively, “HIPAA”). The parties agree to use and disclose patient information pursuant to these Terms and Conditions only as permitted by HIPAA.
15. No Debarment. Each party represents and warrants that neither it nor, to the best of its knowledge, any of its officers, directors, or employees have been debarred, suspended, declared ineligible, or excluded from participation in Medicare, Medicaid, or any other federal or state healthcare program. Each party shall notify the other party immediately if it, or any of its officers, directors, or employees has been debarred, suspended, declared ineligible or excluded from participation in Medicare, Medicaid, or any other federal or state healthcare program.
16. Relationship of the Parties. These Terms and Conditions shall not establish a party as the legal representative or agent of the other party, nor shall a party have the right or authority to assume, create, or incur any liability or any obligation of any kind, express or implied, against, in the name of, or on behalf of, the other party. These Terms and Conditions shall not constitute, create, or in any way be interpreted as a joint venture, partnership or formal business organization of any kind. The goods and services described herein will be rendered by ETG as an independent contractor. Neither ETG nor its employees or agents will be deemed to be employees or agents of Customer and as such, ETG’s employees will not be covered under any of the benefit programs of Customer, including, without limitation, to worker’s compensation. Each party is solely responsible to select, engage and discharge its employees and other personnel, to determine and pay their compensation and benefits, and otherwise to direct and control their services and determine all matters.
17. No Third-Party Beneficiary. Unless explicitly agreed in writing by all parties, the contractual relationship shall be exclusively between Customer and ETG. There shall be no third-party beneficiary or collateral warranty relating to any Order and the Customer shall indemnify and hold ETG harmless from and against any and all third-party claims in any way relating to the Customer or to the Order by the Customer.
18. Entire Agreement. These Terms and Conditions constitute the entire agreement between the parties and may be amended only in writing executed by both parties.
19. Severability. Should a court waive, limit or hold to be invalid, illegal or unenforceable any part of these Terms and Conditions, all other parts shall still apply to the greatest extent possible.
20. Waiver. It is understood and agreed that no failure or delay by either party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise hereof or the exercise of any right, power, or privilege hereunder.
21. Governing Law. The rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of the state of Delaware, without reference to its choice of law provisions.
22. Web-Based Online Ordering and Results. If Customer wants to utilize ETG’s web-based ordering and result reporting system for ETG’s testing services, then Customer shall agree to the Online Services Terms of Use and Privacy Policy upon Customer’s logging into such web-based system.
23. HL7 Interface Ordering and Results. If Customer wants to establish an HL7 interface for ordering and result reporting for ETG’s testing services, then the parties shall execute ETG’s standard HL7 Interface Agreement, a copy of which shall be provided to Customer following Customer’s request.
24. Headings. The headings contained in these Terms and Conditions are for reference and convenience purposes only and shall not affect in any way the meaning or interpretation hereof.
25. Notice. Any notice required or permitted to be given hereunder by either party shall be in writing and shall be deemed given on the date received if delivered personally, by reputable overnight delivery service, or three (3) days after the date postmarked if sent by registered or certified mail, return receipt requested, postage prepaid by the party providing notice.
26. Use of Name. Neither party shall use the name, logo, or trademarks of the other party in any news release, publicity, advertising, endorsement, or commercial communication without the prior written consent of the other party.
27. Successors and Assignment. Neither party shall assign its rights or obligations under these Terms and Conditions, in whole or in part, or any interest therein, without the prior written consent of the other party; provided, however, that ETG may assign these Terms and Conditions without such consent to an Affiliate or a successor to substantially all the business of ETG. These Terms and Conditions shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
28. Modification. These Terms and Conditions may be modified in writing from time to time by ETG and Orders will be governed by the most recent version of these Terms and Conditions that is in effect at the time ETG accepts the Order.
29. Survival. Any provision of these Terms and Conditions which, by its nature, involves obligations that extend beyond the termination or expiration of these Terms and Conditions shall survive such termination or expiration, including, but not limited to the provisions of Sections 2, 6.3, 7-14, 18-21, and 24-29.