Testing Kit Agreement

 

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Test Kit Agreement

Sale of Test Kits.  Subject to the terms set forth in this Test Kit Agreement (“Agreement”) Company hereby agrees to sell and the undersigned purchaser (“Purchaser”) agrees to buy a test kit (“Kit”) from Company whereby the Company shall ship the Kit to the Purchaser who will send a sample to the Company’s designated laboratory (“Laboratory”) who will perform a preliminary screening and transmit the results to the Company who will notify the Purchaser of the results so that the Purchaser can determine whether more extensive testing is appropriate. The terms and conditions set forth in this Agreement shall govern all purchases of all Kits by Purchaser from Company and shall be deemed to be incorporated in all invoices, purchase orders, price quotations and shipping confirmations.  Nothing contained in any purchase order, memoranda or other writing submitted by Purchaser to Company shall modify, amend or supersede this Agreement or any portion thereof.  Purchaser’s submission of any provisions that are inconsistent, in conflict with or create any ambiguity with this Agreement or any portion thereof are rejected.  Company’s failure to object to any different terms or conditions shall not constitute acceptance or approval by Company.

Pricing.  Company shall sell the Kit to Purchaser at the prices set forth on the Company’s website  The cost for the Kit includes the cost of (a) shipping the Kit from the Company to Purchaser, (b) performing a preliminary screening as specified in the description of the test on the Company’s website, and reporting the results to Purchaser.  Purchaser shall be responsible for the cost of sending the sample from the Purchaser to the Laboratory.

Delivery.  Delivery of a Kit shall take place when the Kit is received by the Purchaser (“Delivery”). All risk of loss for a Kit shall transfer to Purchaser upon Delivery.  Purchaser shall bear all risk of loss while the Kit is in the possession Purchaser until the sample arrives at the Laboratory for testing.   Company shall not be liable for any delays in Delivery or testing for any reason including, but not limited to, fire, flood, strikes, lockouts, accidents, war, terrorist acts, insurrection, delays in transportation, equipment failure, shortage of materials, governmental interference or regulation, Acts of God or any other reason.  All claims for defective goods shall be made within ten (10) calendar days of Delivery. Failure to make a claim within that time shall operate as unequivocal acceptance and waiver of all claims.

Payment.  Purchaser shall pay Company for the Kit in full at the time the order is placed.  Purchaser shall pay all sales, use and excise taxes.

Analysis.  Purchaser shall send the sample to the designated Laboratory.  The test results shall be provided by the Laboratory to the Company and the Company will provide the test results to Purchaser. The Laboratory shall have no duty to test the sample or provide the results to the Company until the Purchaser has signed the HIPAA Privacy Authorization Form set forth in Exhibit “A” (“Authorization”) and delivers the Authorization to the Company. The Company and the Laboratory shall have no duty to (a) provide any medical advice or warnings to the Purchaser, (b)  maintain a chain of custody for the sample or test results, (c) retain samples, or (d) testify in court.  Purchaser acknowledges and agrees that the samples and preliminary screening results are not intended to be admissible in court.  The Company and the Laboratory shall have no liability and Purchaser waives all claims it may have against Company and Laboratory and their respective shareholders, officers, directors, agents, employees, successors, and assigns for any inaccurate results because, among other things, the testing is only done for preliminary screening purposes so that Purchaser can determine whether more extensive additional testing is appropriate. The Purchaser acknowledges and agrees that Purchaser understands that the results of any preliminary screening or test may depend on the time period during which the sample was collected. Therefore, if Purchaser believes the results are different than what Purchaser expected, Purchaser has the right to have additional preliminary screenings or testing performed by a third party.

Additional Services.  If Company or any of its officers, directors, shareholders, employees, agents, representatives, contactors, Laboratories, successors or permitted assigns is compelled to testify or provide records by subpoena, court order or government order, then Purchaser shall promptly pay Company the fully burdened hourly rate for the person testifying plus the hourly rate for the Company’s attorney who accompanies the person testifying or providing records.

DISCLAIMER OF WARRANTIES.  COMPANY MAKES NO REPRESENTATION OR WARRANTY REGARDING THE PRELIMINARY SCREENING OR TEST RESULTS.  COMPANY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE GOODS AND ITS SERVICES, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE AND WARRANTY OF MERCHANTABILITY.

Limitation of Liability.  Company and Laboratory shall not be liable under any circumstances for any special, consequential, incidental, punitive or exemplary damages arising out of or in any way connected with this Agreement, the sale of a Kit to Purchaser or testing, including damages for loss of use, lost profits, or damages paid to third parties even if Company and Laboratory have been advised of the possibility of such damages.  Purchaser’s exclusive remedy and Company’s and Laboratory’s entire liability to Purchaser shall be limited to the total invoice price paid by Purchaser for the Kit that is the subject of any dispute or claim for damages.  Purchaser shall report all alleged problems with a Kit to Company and Laboratory immediately.  Company and Laboratory shall have no liability for any problems which are not reported immediately.  No legal action shall be brought by Purchaser against the Company or Laboratory for any claim with respect to any goods and services sold by Company to Purchaser more than one (1) year after Delivery of such goods or services to Purchaser.  It is agreed that any cause of action with respect to such goods or services will accrue as the date of Delivery of the Kit.

General.  This Agreement and the documents expressly referenced herein, shall constitute the entire Agreement between the Parties hereto with respect to the subject matter hereof, and shall supersede all prior and contemporaneous agreements, representations and negotiations of the Parties concerning the subject matter hereof and the terms applicable thereto.  This Agreement may not be supplemented, modified or amended in any manner, except by an instrument in writing stating that it is a supplement, modification or amendment of this Agreement and signed by each of the Parties hereto.  No waiver of any of the provisions of this Agreement shall be deemed or constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver.  No waiver shall be binding unless executed in writing by the Party making the waiver.  All terms and provisions contained herein shall inure to the benefit of and shall be binding on each of the Parties hereto and their respective successors and permitted assigns and each of them.  This Agreement shall be deemed to have been entered into, and shall be construed and interpreted, in accordance with the laws of the State of California without reference to California’s application of principles of conflicts of law.   In the event that any provisions hereof are deemed to be illegal or unenforceable, such a determination shall not affect the validity or enforceability of the remaining provisions hereof, all of which shall remain in full force.  As used in this Agreement, the masculine, feminine and neuter gender, and singular and plural number shall be deemed to include the other and others whenever the context so indicates.  All captions used in this Agreement are for convenience only and shall not be construed in interpreting this Agreement.  Time is of the essence for this Agreement and all of the terms, provisions, covenants and conditions hereof.    This Agreement may not be assigned by either Party without the express written consent of each of the Parties.

Arbitration.  Any and all controversies, claims and disputes arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration in the County of San Diego, State of California, in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. The arbitrator shall be an attorney admitted to practice law in the State of California with at least fifteen (15) years of business law experience. The award rendered by the arbitrator shall be final and non-appealable and may be entered as a final judgment in any court having jurisdiction thereof. The award of the arbitrator shall be in the form of findings of fact and conclusions of law and shall set forth in detail the legal and factual basis of the decision.  EACH OF THE PARTIES ACKNOWLEDGES AND AGREES THAT BY ENTERING INTO THIS AGREEMENT WITH THE FOREGOING ARBITRATION PROVISION THAT THEY ARE GIVING UP THEIR RIGHT TO TRIAL BY JUDGE AND JURY AND GIVING UP THEIR RIGHT TO APPEAL.